R v Murray [2008] ACTSC 115

(d) that no basis has been shown for ordering the indictment to be severed.

THE COURT ORDERS that the application to sever the two counts in the indictment is refused.

1. This is an application on behalf of Paul Clifford Murray, who has been charged in the alternative with two offences arising out of a traffic accident in which Mr Murray was driving a vehicle which left the road and hit and killed a person standing on the nature strip outside his home. Both charges involve the assertion of negligent driving by Mr Murray. Mr Murray was arraigned on the two charges on 30 September 2008.

2. The first count in the indictment arises under subs 29(2) of the Crimes Act 1900 of the ACT (the ACT Crimes Act), while the alternative count arises under s 6 of the Road Transport (Safety and Traffic Management) Act 1999 (the ACT Road Transport Act). Both provisions are set out in the Appendix to this judgment.

3. The application is an application to sever the two counts in the indictment on the ground that the charges are duplicitous. In argument, counsel for the applicant, while not backing away from the word "duplicitous", reformulated his application as one for a declaration that, although charged in the alternative, the two offences in fact have the same elements and, in particular, require the same level of negligence to be proved. This reformulation came as a surprise to counsel for the respondent, who found himself arguing the new application "on the hop" (although I note that he did not apply for an adjournment). This to some extent explains the difficulties I have found in clarifying and determining what I consider to be the real issues in this application. These were overcome only to some extent by the further written submissions that I sought from counsel on one aspect of this matter.

4. Whatever problems there might be with the two charges in this case, they do not seem to be duplicitous.

5. Counsel for the applicant sought to explain "duplicitous" as follows:

Duplicity means double and we would understand that that term would apply to any indictment where two counts are alleging the same elements of the same offence because you've got the same problem. The issue is whether someone is capable of being convicted on two offences which are the same.

6. In R v Banks [2003] ACTSC 68 (27 August 2003) Connolly J explained at [7] that:

Duplicity occurs where more than one offence is joined in one count in an indictment. The position was concisely stated by Kirby J in Walsh v Tattersall _(1996) 188 CLR 77 at 107 that - _

... a prosecutor may not ordinarily charge in one count of an indictment, information or complaint two or more separate offences provided by law.

Connolly J also referred to the "more expansive statement of the law ... to the same effect" by Gaudron and McHugh JJ in S v The Queen [1989] HCA 66; (1989) 168 CLR 266 at 284-285.

7. In argument, counsel for the applicant asserted that "the High Court recently has started using the terms 'ambiguous', 'uncertain', 'duplicitous' interchangeably ... the High Court also used [the word 'duplicitous'] in relation to an indictment that's duplicitous, which has a number of counts in it ... [in] Pearce v R (1998) 194 CLR 610 [(Pearce)]". I could find no reference to "duplicity" or "duplicitous" in that case.

8. It is true that in Pearce, the word "duplication" is used several times, by Gummow J who mentioned "duplication" in relation to penalties at [68], but notably by Kirby J. In discussing the principle of double punishment, Kirby J at [125] used the words "a complaint about duplication in a second indictment or second charge", and said that it "is necessary in each case to analyse the essential elements of the offences said to be duplicated".

9. However, a consideration of Kirby J's words indicates that the concept of "duplication" was not being used in connection with the concept of duplicity. For the purpose of determining whether prosecution for two offences would offend the common law rule against double jeopardy, Kirby J at [127] recommended "[t]he recognition of a larger judicial function to ensure that a person is not twice vexed or punished for what is substantially the same act" as providing "a much more stable principle by which to relieve accused persons from the burden of double jeopardy".

10. Thus, the "duplication" being considered by Kirby J in Pearce was quite different from "duplicity" as explained by Connolly J in reliance on Kirby J's comments in Walsh v Tattersall (1996) 188 CLR 77 at 107. Furthermore, since the current indictment charges the two offences in the alternative, neither the question of being twice vexed nor the question of being twice punished arises in this case.

11. Connolly J's explanation indicates that, by definition, duplicity is a characteristic which will affect a single charge; two charges may each be duplicitous, but not because of any relationship between the two - rather, a duplicitous charge is a single charge which, in fact, includes more than one offence.

12. In argument it emerged that the substance of the applicant's challenge to the two charges here under consideration can be summarised as follows:

(a) The two alternative charges each require a negligent act by the accused.

(b) The law requires a higher level of negligence than ordinary civil negligence to found criminal liability for negligence.

(c) Therefore, the two charges must each require the same level of negligence, and cannot stand as alternatives.

13. It is apparent that even if the two premises are accepted, the conclusion as stated does not necessarily follow. The missing premise in the argument as expressed is that there can only be one criminal standard for negligence. If there can be two different standards of negligence that would support criminal liability, then the inclusion of negligence as an element of each offence is not an obstacle to the two charges standing as alternatives.

Does criminal liability always require greater negligence than civil liability?

14. Counsel for the applicant referred me to two authorities for the proposition that criminal liability for negligence must be based on a greater degree of negligence than ordinary civil negligence.

15. That this is so at common law seems to be supported by Andrews v DPP [1937] UKHL 1; [1937] AC 576 (Andrews).

16. The case of Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 (EPA) concerned a statutory offence involving negligence. In considering a document submitting questions of law to the NSW Court of Criminal Appeal, that court first distinguished between offences, such as manslaughter, for which negligent but unintentional conduct may be sufficient to constitute the offence, and offences where negligence is "by the terms of the legislation, a component of the crime" (at 438 per Mahony JA with whom Badgery-Parker J and Finlay J agreed). In those cases, Mahony JA emphasised (at 439), negligence under the statute had to be assessed having regard to "the conditions in question and the circumstances of the case" but there was no additional requirement that what was done or omitted involved "a 'gross' departure from an appropriate standard of care". He noted (at 439) that an act or omission that was negligent under the civil law:

... would be negligent under the criminal law only if the court, on an assessment of all the facts, concluded that failure to take the relevant precaution warrants criminal punishment.

17. EPA confirms that civil negligence as such will not found criminal liability, even under legislation, if that negligence does not warrant criminal punishment. However, rather than providing an answer to the current inquiry, that case simply begs the question whether there is any restriction on what a legislature can say, about the kinds of negligence that warrant criminal punishment, by express legislative provisions making negligence an element of a crime. Neither Andrews nor EPA seems to rule out a legislature identifying different degrees of negligence applicable to different offences or justifying different penalties.

Is there in this case only one applicable standard of negligence for criminal liability?

18. This inquiry can be approached in at least two ways.

19. One way is to consider first whether as a matter of law there can only be one standard of negligence for criminal liability. If the answer is yes, then there can only be one such standard in this case, and the two charges cannot stand as alternatives.

20. The other way is to consider first whether the legislative provisions in question do purport to establish two different standards of negligence for criminal liability. If the answer to that question is no, then again there must be only one standard of negligence under consideration in this case, and the two charges cannot stand as alternatives.

21. Both these questions can be resolved adequately for present purposes by reference to the various forms of the two offences and the themes of the relevant cases.

22. For many decades now, there have been provisions similar to the ones here under consideration, and to the related provisions dealing with grievous bodily harm, in both NSW and ACT legislation, as set out in the following table.

• driving a motor vehicle negligently, etc - with penalties depending on death, grievous bodily harm or other outcome

S 6, Road Transport (Safety and Traffic Management) Act 1999

• driving a motor vehicle negligently - with penalties depending on death, grievous bodily harm or other outcome

Subs 42(1), Road Transport (Safety and Traffic Management) Act 1999

• driving a motor vehicle negligently - with penalties depending on death, grievous bodily harm or other outcome

S 29, Crimes Act 1900 (formerly s 52A)

• by culpable driving - including driving negligently - causing death or grievous bodily harm

S 52A, Crimes Act 1900

• from 1951: by culpable driving occasioning death or grievous bodily harm
• since 1994: by dangerous driving occasioning death or grievous bodily harm

"culpable driving" and "dangerous driving" include driving under the influence of intoxicating liquor or a drug, or driving at a speed or in a manner dangerous to the public

S 54, Crimes Act 1900

• by unlawful or negligent act causing grievous bodily harm

23. It is true that the ACT and NSW provisions have not always been structured in the same way or expressed in the same terms. On the other hand, there have been, since well before 1950, at least two different offences in each jurisdiction covering driving that causes death or grievous bodily harm, otherwise than intentionally.

24. Since 1950, there has been considerable judicial consideration of those various provisions, or the relationship between relevant pairs of provisions, including in the following cases:

• Clout v Hutchinson [1950] 67 WN 203.

• The Queen v Leskinen (1978) 36 FLR 414.

• R v Buttsworth [1983] 1 NSWLR 658.

• R v D [1984] 3 NSWLR 29.

• R v Evans (Evans) (unreported, ACTSC, Higgins CJ, 21 June 2005).

• DPP (NSW) v Kim Soon Yeo ([2008] NSWSC 953, (unreported, Johnson J, 17 September 2008) (Yeo)).

25. The decisions in those cases are not easily reconcilable into a single statement of principle. This may be partly attributable to the legislative variations over time and between jurisdictions. However, none of the cases listed suggests that the existence of two offences (whether applying to death or to grievous bodily harm) with different descriptions of negligence and different penalties is the result of legislative inadvertence rather than legislative intent, and none of them suggests that the relevant legislation is in any way beyond legislative power by reason of purporting to create different levels of criminal negligence. Instead, all the cases cited either assume, or declare, that the existence of multiple offence provisions is both deliberate and effective, and either assume, or where necessary expressly engage in, a process of distinguishing the different levels of negligence required for conviction on the several offences. There is general agreement across the cases that there are at least two standards of criminal negligence, the degree of negligence required for the offence of negligent driving (currently found in Road Transport (Safety and Traffic Management) Acts) and that required for the more serious offence, whether that offence is described as culpable driving or in some other way.

26. For present purposes, there is no need to try to reconcile the various judicial references to the existence of multiple offences or the expositions of the several standards of negligence required by those offences. It is enough to find that the continued existence of pairs of offence provisions apparently covering different levels of negligence in driving, and the line of cases in which courts have assumed or expressly confirmed the legitimacy and efficacy of those pairs of provisions, do not in any way support the applicant's assertions. Nor do the principles expressed in Andrews (which of course preceded the cases I have cited) or the comments made in EPA undermine the status of those cases cited in paragraph [24] above as supporting the legitimacy and efficacy of the kind of legislative structure currently and for some years found in ACT legislation.

27. Section 29 of the ACT Crimes Act establishes a hierarchy of similar offences in the sense that, under subs 29(12), a person who has been convicted or acquitted of any other offence on certain facts cannot, in effect, be subsequently tried under s 29, whereas under subs 29(11), conviction or acquittal under subs 29(2) only precludes another trial on the same facts under the Crimes Act. For present purposes, this means that a person who has been acquitted under s 6 of the ACT Road Transport Act cannot be tried under s 29 on the same facts, but a person who is acquitted under s 29 could still be convicted under s 6. Thus, there would not seem to be any obstacle to inviting a jury to reach a verdict on a subs 29(2) charge on the basis that, if the jury convicts on that charge, no verdict would be taken on the s 6 charge, but if the jury acquits on the subs 29(2) charge a verdict would then be taken under s 6.

28. Since the applicant has not advanced any other basis for finding that the two charges in this case cannot stand as alternatives, the application must fail.

29. In argument, counsel for the applicant submitted that one way to test his proposition that the two charges cannot stand as alternatives would be to set out the elements of each offence as they would be put to the jury at the trial. While I do not consider that this is a necessary part of determining the question raised in this application, the exercise suggested by counsel provides a useful check on my findings.

30. The elements of the two offences as charged may be summarised as set out below.

31. For subs 29(2) of the ACT Crimes Act, the elements are:

• culpable driving, consisting of driving negligently:

o driving negligently requires failing unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case;

32. For s 6 of the ACT Road Transport Act, the elements are:

o negligently is to be determined having regard to all the circumstances including the nature, condition and use of the road or road related area where the offence is alleged to have been committed; and the amount of traffic on, or that might reasonably be expected to have been on, the road or road related area;

33. For the purpose of explaining to a jury the distinction between the two offences, it must be conceded that tests based on whether the accused's conduct was such as to merit criminal punishment (see, for instance, Evans (transcript p 84) and EPA at 439) are not helpful in distinguishing between two levels of negligence both of which have been identified by the legislature as meriting such punishment. However, where two offences are charged in the alternative, as is the case here, the jury could usefully be directed that a greater degree of negligence is required by the culpable driving charge (as indicated by the reference to failing unjustifiably and to a gross degree) than is required by the negligent driving charge, which only requires a failure to exercise "that degree of care which the ordinary prudent driver would exercise in all the circumstances" (Yeo per Johnson J at [29]).

(a) that neither the charge in Count 1 nor the charge in Count 2 is duplicitous;

(b) that no reason has been shown why charges under subs 29(2) of the Crimes Act 1900 (ACT) and s 6 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) should not stand together on the statute book and be interpreted as creating two separate offences requiring, among other things, different levels of negligence;

(c) that under s 29 of the ACT Crimes Act, a verdict taken under subs 29(2) of that Act does not preclude a verdict then being taken, if required, on an alternative charge under s 6 of the ACT Road Transport Act; and

(d) that no basis has been shown for ordering the indictment to be severed.

36. While I have found that the two charges on which the accused has been arraigned arise from legislative provisions deliberately intended to, and effective to, create different offences which can satisfactorily be prosecuted as alternatives, it will be apparent, from paragraphs [22] to [26] above, that the application of the legislative provisions is not always straightforward.

37. It would save time, effort and possible confusion for everyone involved in the prosecution of the inevitably tragic cases covered by the relevant legislation if legislatures were to reconsider both provisions and re-enact them in a form that would demonstrate more clearly to all involved the distinctions intended to be drawn between the different kinds of conduct covered by the various offences.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the applicant: Trevor Barker & Associates

Solicitor for the respondent: ACT Director of Public Prosecutions

Crimes Act 1900

29 Culpable driving of motor vehicle

(1) In this section:

drug - see the Road Transport (Alcohol and Drugs) Act 1977, dictionary.

(2) A person who, by the culpable driving of a motor vehicle, causes the death of another person is guilty of an offence punishable, on conviction, by imprisonment for 7 years.

(3) However, for an aggravated offence against subsection (2), the maximum penalty is imprisonment for 9 years.

Note Section 48A (Aggravated offences - offences against pregnant women) makes provision in relation to aggravated offences against this section.

(4) A person who, by the culpable driving of a motor vehicle, causes grievous bodily harm to another person is guilty of an offence punishable, on conviction, by imprisonment for 4 years.

(5) However, for an aggravated offence against subsection (4), the maximum penalty is imprisonment for 5 years.

(6) For this section, a person shall be taken to drive a motor vehicle culpably if the person drives the vehicle -

(a) negligently; or

(b) while under the influence of alcohol, or a drug, to such an extent as to be incapable of having proper control of the vehicle.

(7) For this section, a person shall be taken to drive a motor vehicle negligently if the person fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case.

(8) An information or indictment for an offence against subsection (2) or (4) shall specify the nature of the culpability, within the meaning of subsection (6), that is alleged.

(9) Nothing in subsection (8) renders inadmissible in proceedings for an offence against subsection (2) or (4) evidence that, apart from that subsection, would be admissible in the proceedings.

(10) Nothing in this section affects -

(a) the liability of a person to be convicted of murder or manslaughter or any other offence; or

(b) the punishment that may be imposed for such an offence.

Note Under the Road Transport (General) Act 1999, s 62 (Automatic disqualification for culpable driving), if a person is convicted, or found guilty, of an offence against this section, the person is automatically disqualified from holding or obtaining a driver licence.

(11) A person who has been convicted or acquitted of an offence against subsection (2) or (4) is not liable to be convicted of any other offence against this Act on the same facts or on substantially the same facts.

(12) Subject to section 49, a person is not liable to be convicted of an offence against subsection (2) or (4) if the person has been convicted or acquitted of any other offence on the same facts or on substantially the same facts.

Road Transport (Safety and Traffic Management) Act 1999

6 Negligent driving

(1) A person must not drive a motor vehicle negligently on a road or road related area.

Maximum penalty:

(a) if the driving occasions death - 200 penalty units, imprisonment for 2 years or both; or

(b) if the driving occasions grievous bodily harm - 100 penalty units, imprisonment for 1 year or both; or

(c) in any other case - 20 penalty units.

(2) In deciding whether an offence has been committed against subsection (1), the court must have regard to all the circumstances of the case, including -

(a) the nature, condition and use of the road or road related area where the offence is alleged to have been committed; and

(b) the amount of traffic on, or that might reasonably be expected to have been on, the road or road related area.

(3) In this section:

grievous bodily harm includes permanent or serious disfigurement.

Note If an offence against this section occasions death or grievous bodily harm, automatic licence disqualification applies (see Road Transport (General) Act 1999, s 63).