R v Scholl

2 The combined effect of s 422A(1) and s 319 of the Crimes Act, which were in operation at the time of the collision, is that, on the trial of a person charged with an offence under s 24 or s 318, if the jury is not satisfied that the accused is guilty of the offence charged, they are entitled to consider whether the accused is guilty of an offence under s 319, which then provided for the offence of dangerous driving causing death or serious injury. Section 319 has since been amended by s 5(1) and s 5(2) of the Crimes Amendment (Child Homicide) Act 2008 so as, in effect, to render the charge of dangerous driving causing death a separate offence to the charge of dangerous driving causing serious injury. However, at the time relevant to this case, s 319(1) provided:

"A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of, or serious injury to, another person is guilty of an indictable offence and liable to level six imprisonment (five years maximum)."

3 Mr T Forrest QC, who appears with Mr P Higham for the accused, has raised with me the question of how I intend to instruct the jury in relation to the alternative charge of dangerous driving causing death or serious injury. The issues raised by Mr Forrest were largely, if not entirely, resolved during submissions by discussion between myself and, on the one hand, Mr Forrest, and, on the other hand, Mr P Rose SC, who appears with Mr A Grant on behalf of the Crown. However, as discussed with counsel, it is convenient if I set out, in this ruling, the conclusions thus reached, so as to assist counsel in their openings and in the manner in which they conduct the trial.

4 Before turning to the alternative charge under s 319, I should observe that I intend to charge the jury on the eleven counts of culpable driving in accordance with the formula described by Charles JA in R v De'Zilwa[1], namely, that in order to convict the accused of those counts, the jury must be satisfied beyond reasonable doubt that his driving involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, and which involved such a high risk that death or serious injury would follow, that the driving, causing death, merited criminal punishment.[2] The same formula, with appropriate adaptation, has been held to apply to the offence of negligently causing serious injury contrary to s 24 of the Crimes Act, which is the subject of a further ten counts in this case.[3]

5 I turn, then, to the alternative charges under s 319. Mr Forrest and Mr Higham provided to me a document setting out the principles which, they contend, are applicable in this case. They also referred me to a number of authorities, to which I shall also make reference shortly. The essential principles contended for by Mr Forrest are as follows:

(b) That test is to be judged from the viewpoint of the defendant, and what he knew or ought reasonably to have known.

(c) Mere negligence is insufficient to constitute dangerous driving; there must be some serious breach of the proper conduct of the vehicle over and above a failure to drive with due care and attention.

(d) It is not the result which gives the driving the quality of being dangerous; rather, it is the potentiality in fact of danger to the public in the manner of driving that constitutes the offence.

(e) There must be some fault on behalf of the driver which caused the danger to the public.

(f) The defence of honest and reasonable, but mistaken, belief in a fact or facts is available to an accused in an appropriate case.

6 In submissions before me, Mr Forrest, in essence, raised two principal issues. First, Mr Forrest submitted that the directions to the jury should adequately differentiate between a breach of duty of care sounding in a civil claim for damages on the one hand, and dangerous driving on the other hand; and they should also differentiate clearly between the quality of driving which may constitute dangerous driving, and the quality of driving which would justify a verdict of guilty on the counts of culpable driving. The second matter raised by Mr Forrest is the question of whether a concept of "fault" is involved in the offence of dangerous driving causing death or serious injury. I shall return to that matter shortly, after briefly outlining the effect of the relevant authorities on the question of dangerous driving.

7 The offence of dangerous driving, causing death or serious injury, was first introduced in Victoria in 2004. It seems that that offence was created to fill the gap which existed between the level of seriousness of the offending required to prove the offence of culpable driving, and the offence of dangerous driving contrary to s 64 of the Road Safety Act 1986. The Court of Appeal of this State has not, as yet, delivered any decision reflecting on the proper construction of s 319, or on the issues raised by Mr Forrest, although I understand that there are two cases currently before the Court which may shed some light on the proper construction of s 319.

8 The offence of dangerous driving has been part of the road traffic legislation of Victoria for many decades. The concept of driving a vehicle at a speed, or in a manner, dangerous to the public also appears in some interstate legislation, as part of the definition or exposition of the equivalent interstate offence of culpable driving. There are a number of authorities, including decisions of the High Court, which have defined the meaning of phrases such as "driving in a manner dangerous". Although some care must be taken in applying those definitions to s 319, subject to one exception to which I shall later refer, it was not argued before me that those authorities do not apply to s 319 of the Crimes Act.

9 The seminal authority, to which reference is frequently made, is the decision of the Court of Criminal Appeal of South Australia in R v Coventry[4]. That case concerned s 14(1) of the Criminal Law Consolidation Act 1935, which provides that any person who drives a motor vehicle "in a culpably negligent manner, or recklessly, or at a speed, or in a manner which is dangerous to the public" shall be guilty of a misdemeanour. The accused was charged with the offence of causing death by "driving in a manner dangerous to the public". The Court of Criminal Appeal defined that phrase to mean as follows:

"... the act of driving in a manner which any ordinary person (in the situation of the driver) would recognise as dangerous, in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road."[5]

10 The Court then proceeded to emphasise that it was essential that juries should be directed to distinguish between negligence involving civil responsibility, and the charge of driving in a manner dangerous to the public. The Court stated:

"The charge of driving to the danger of the public involves more than this. It implies conduct which is open to grave censure as involving the plain threat of serious injury to other people."[6]

11 The accused appealed from the decision of the Court of Criminal Appeal to the High Court in R v Coventry[7]. The High Court, with one exception, implicitly approved the definition of dangerous driving stated by the Court of Criminal Appeal. In doing so, the High Court rejected a submission on behalf of the appellant that it was an element of the charge of dangerous driving that the appellant must have been indifferent to the consequences of his actions. The Court held that indifference to such consequences is not an essential element of driving in a manner dangerous to the public. Thus, the Court stated that the standard is an objective standard. However, the Court also considered that the language of the relevant section did not exclude a potential defence of mistaken fact on reasonable grounds.[8]

12 The test of driving in a manner dangerous, prescribed by the Court of Criminal Appeal of South Australia in Coventry, has been applied by a number of Courts interstate.[9]

13 In Coventry, the South Australian Court of Criminal Appeal had also stated that, in order to prove dangerous driving, the Crown must establish driving in a manner which involved more than a "casual or transitory act or omission".[10] The High Court disapproved that passage, holding that, in an appropriate case, an act or omission may constitute dangerous driving notwithstanding that it is either casual or transitory.[11] Nevertheless, in my view, Mr Forrest is correct in submitting that, in the circumstances of this case, it would not be appropriate to instruct the jury that mere casual or transitory omission or neglect would be sufficient to constitute dangerous driving. Mr Rose has already made available the opening which he intends to make to the jury. The Crown case will be that the accused drove in a manner which was either culpable, or dangerous, because he had, for a substantial period of time on his approach to the level crossing, failed to keep a proper lookout, as a result of which he had failed to heed warnings of, or observe, the approach of the train, with which he ultimately collided. Thus, it will not be part of the Crown case that the criminality of the accused, whether pursuant to s 318, s 24, or s 319, was constituted by any momentary or transitory act or omission by the accused. Based on the manner in which the Crown proposes to put its case to the jury, in my view it would be appropriate for me to direct the jury that, in order to be satisfied of the guilt of the accused in respect of the principal counts on the presentment, or the alternative counts under s 319, in the circumstances of this case it would not be sufficient for the jury to find that the accused had been guilty of no more than transitory or casual act or neglect.

14 In McBride v R[12], the High Court was concerned with an appeal by an accused, who had been convicted of driving his motor vehicle in a manner dangerous to the public at the time of a fatal impact, contrary to s 52A of the Crimes Act 1900 (New South Wales). That conviction arose out of a collision between a motor vehicle driven by the accused and a woman and a child on a pedestrian crossing. The High Court set aside the accused's conviction, on the basis that the summing of the trial judge to the jury was defective. Barwick CJ, who delivered the leading judgment of the Court, stated that the concept of driving in a manner dangerous to the public involved driving which "... is in a real sense potentially dangerous to a human being or human beings who as a member or members of the public may be upon or in the vicinity of the roadway on which the driving is taking place".[13] His Honour proceeded to state that the section required "some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality, and not speculatively, potentially dangerous to others".[14]

15 That definition of dangerous driving was adopted and applied by the High Court in Jiminez v r[15]. In their joint judgment, Mason CJ, Brennan, Dean, Dawson, Toohey and Gaudron JJ stated that there must be some feature " ... which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention".[16] Their Honours then proceeded to quote with approval the passages to which I have just referred from the judgment of Barwick CJ in McBride v R.

16 It is in that background that I turn to the submission by Mr Forrest, that the charge of causing death or serious injury by dangerous driving under s 319 involves a concept of "fault". In support of that submission Mr Forrest referred to the decision of the Court of Appeal in R v Gosney[17] and the decision of the Court of Criminal Appeal of Queensland in R v Webb[18].

17 In Gosney, the appellant was convicted of dangerous driving because she drove her vehicle in the wrong direction along a dual carriageway road. At her trial, she contended that she had made a mistake because she had turned right on to the carriageway at an intersection with which she was unfamiliar, and at which there was no indication by way of road sign or otherwise that such a turn was prohibited. The Court of Appeal upheld the appeal holding that there must be some "fault" on behalf of the driver. In doing so, however, it is important to note that the Court of Appeal stated that "fault", in that sense, did not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with the proper standards of driving. Rather, the Court held that fault involves a failure to observe the care or skill of a competent and experienced driver in the circumstances of the case.[19]

18 In that respect, the observation by the Court of Appeal in Gosney is consistent with Australian law. As I have already stated, the Court of Criminal Appeal in Coventry emphasised that the driving must involve something more than negligence which would sound in damages in a civil cause of action.[20] Similarly, in McBride v R, Barwick CJ, in the passage to which I have already referred, stated that the offence required "some serious breach of the proper conduct of a vehicle upon the roadway" so as to be dangerous to others. Further, the test for determining whether the accused has driven his vehicle in a manner which is dangerous under s 319 is to be determined objectively, not from the standpoint of the notional reasonable bystander, but, rather, by the standard of the ordinary reasonable driver in the same set of circumstances as the accused.[21] It is for that reason that the offence of dangerous driving will not be established, if the Crown fails to prove, in an appropriate case, that the defendant did not honestly believe on reasonable grounds in the existence of a state of facts which, in the circumstances, would have taken his actions outside the operation of the relevant legislation.[22] I should note that in discussion with Mr Forrest, he accepted that the formulation of the test of dangerous driving from the viewpoint of the ordinary reasonable driver in the same set of circumstances as the accused does embrace the concept of "fault" for which he contended.

19 Based on the foregoing, it is appropriate that I identify for counsel the relevant principles, which would apply on the issues which, thus far, have been identified at this stage.[23] Of course, the issues in the trial may alter, thus requiring different directions to be given. However the principles which have been discussed with counsel are sufficiently settled to enable me to indicate them to counsel, for their assistance both during the openings and the conduct of the trial:

1. In order that the accused be guilty of dangerous driving causing death or really serious injury under s 319, he must be guilty of more than a mere lack of reasonable care and skill such as would render him liable to a claim in damages in civil law. In particular, there must be a serious breach by the accused of the proper conduct by him of his vehicle.
2. Further, the driving of the accused must be such as to subject the public to some risk over and above the risks ordinarily associated with being on or near a highway, including risks created by persons who may drive with less than reasonable care and skill. The driving of the accused must constitute a real danger to members of the public. That is, it must in a real sense be potentially dangerous to persons who, as members of the public, may be upon or in the vicinity of the roadway on which the driving was taking place.
3. Thus, there must be some serious breach by the accused of the proper conduct of his vehicle upon the highway, so serious as to be in reality, and not just speculatively, potentially dangerous to others.[24]
4. The test of whether the accused drove his vehicle in a manner dangerous is an objective test, namely, whether the accused drove his vehicle in a manner which an ordinary person, in the situation of the accused, would recognise as dangerous, in the sense which I have defined above.[25]
5. In order to prove the charge of dangerous driving, the prosecution need not prove that the accused was indifferent to the risks created by his driving.[26] However, if the accused had an honest and reasonable mistake as to a relevant circumstance which, had it existed, would have meant that his driving was not dangerous in the circumstances, the Crown would not make out a charge of dangerous driving against him.[27]
6. In order to raise the issue of honest and reasonable mistake, the accused must either adduce, or point to, admissible evidence to that effect. However, the onus of disproving an honest and reasonable mistake of the accused lies on the Crown.[28]

[1] [2002] VSCA 158; (2002) 5 VR 408, 423 [46] R v Franks [1998] VSCA 100; [1999] 1 VR 518, 520 [5] (Winneke P).

[2] See also R v Scott [2003] VSCA 55, [17]-[18] (Winneke P).

[3] R v Shields [1981] VicRp 68; [1981] VR 717, 723 to 724; R v Scott [2003] VSCA 55, [18] (Winneke P).

[4] [1938] SASR 79.

[7] [1938] HCA 31; (1938) 59 CLR 633.

[9] See R v Mayne (1975) 11 SASR 583, 585.

[10] [1938] SASR 79, 87.

[11] [1938] HCA 31; 59 CLR 633, 638.

[12] (1966) 15 CLR 44.

[15] [1992] HCA 14; (1992) 173 CLR 572.

[17] [1971] 2 QB 674.

[18] [1986] 2 Qd R 446.

[19] Page 680; see also R v Webb (above), 450; Smith v R [1976] WAR 97, 105 (Jackson CJ).

[20] See also R v Duryea [2008] SASC 363, [17] (Anderson J).

[21] R v Coventry [1938] SASR 79, 86; on appeal, 59 CLR 79, 637-638; R v Kroon (1991) 55 SASR 476, 477-478 (King CJ), 487 (White J).

[22] Jiminez v R [1992] HCA 14; (1992) 173 CLR 572, 582-583.

[23] See also R v Hendriksen [2007] SASC 304 [61] (Layton J).

[24] McBride v R [1966] HCA 22; (1966) 115 CLR 44, 50 (Barwick CJ).

[25] R v Coventry [1938] SASR 79, 86.

[26] R v Coventry [1938] HCA 31; (1938) 59 CLR 633, 637.

[27] R v Coventry (above), 638; Jiminez v R [1992] HCA 14; (1992) 173 CLR 572, 583.

[28] Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536, 541; Holt v Cameron (1979) 22 SASR 321, 323 to 324 (King CJ); affirmed Cameron v Holt [1980] HCA 5; (1980) 142 CLR 342, 347 (Barwick CJ); Jiminez v R [1992] HCA 14; (1992) 173 CLR 572, 582; He Kaw Teh v R [1985] HCA 43; (1984) 157 CLR 523, 534 to 535 (Gibbs CJ), 558 to 559 (Wilson J), 582 (Brennan J), 593 (Dawson J).