R v Thornton

District Court of NSW|2024-03-18|Before: Herzfeld P

Judgment

The accused was charged with three offences arising out of an incident in which she was driving her car on the Alpine Way near Geehi and collided with three motorcycle riders. The first offence was dangerous driving occasioning death, the second was dangerous driving occasioning grievous bodily harm and the third was furious or other driving causing bodily harm. The accused pleaded guilty to the first two of those offences but not guilty in respect of the third. She came to trial on 18 March 2024 and was arraigned on an indictment containing those three counts. She maintained her plea of guilty to the first two counts and not guilty to the third.
The accused filed an election for trial by Judge alone pursuant to section 132 of the Criminal Procedure Act 1986 (NSW). The Crown consented to that election. Having satisfied myself that the accused had received legal advice in respect of the election to proceed without a jury, I ordered that the trial proceed by Judge alone.
The trial proceeded by the tender of a set of agreed facts, a report from an expert in collision reconstruction, diagrams, a number of photographs and the transcript of the accused's evidence with police. That evidence was uncontested and there was no oral evidence.
The critical matter in the trial is whether the way in which the accused drove her vehicle fell within the meaning of "other misconduct" in section 53 of the Crimes Act 1900 (NSW). For that reason, the first question to determine is the proper meaning of that phrase. Although there is little, if any dispute about any of the facts, I must first give myself some general directions of law.

Right to Silence Including at Trial

I draw no adverse inference against the accused because she did not give evidence in court. I cannot use that fact against her in any way.
The accused did answer questions asked by police in a recorded interview even though she was not obliged to do so. I can have regard to those answers in determining the issues before me. However, there is no obligation on the accused to persuade me to accept those answers. The Crown must satisfy me beyond reasonable doubt that I should reject it as a reasonably possible version of the facts. If that evidence leaves me with a reasonable doubt as to whether the Crown has made out its case in respect of any element of the offence or any essential fact that it must prove, then I am bound by law to bring in a verdict of "not guilty".

Character Direction

The accused has no criminal record at all. The Crown has not contested this evidence and therefore I accept the fact that the accused is a person of good character.
Because she has pleaded guilty to dangerous driving, I cannot use her character as a basis for reasoning that she is unlikely to have committed the third offence charged by the Crown. However, I can reason that a person of good character is less likely to lie or give a false account either in giving evidence or in giving an account of the events in answer to questions asked by the police.
Good character does not provide the accused with some kind of defence. It is only one of the many factors relevant in determining whether I am satisfied beyond reasonable doubt of her guilt.

The Elements

The Crown must prove each element of the third offence beyond reasonable doubt before the accused can be found guilty. Those elements are, relevantly, that the accused: 1. Being in charge of a vehicle; 2. By wanton or furious driving, or racing, or other misconduct, or by wilful neglect; 3. Did (or caused to be done) bodily harm to another.
The Crown does not assert that the accused's conduct amounted to either wanton or furious driving, or racing, or that there was wilful neglect. It asserts that the manner of her driving amounted to "other misconduct".
The accused argues that, because it is preceded by the words "or other" and is more general than the words preceding it, that phrase should be construed as meaning conduct similar to those preceding words, that is, to furious or wanton driving or racing. The Crown argues that "misconduct" should have its ordinary meaning which, according to several dictionaries, is bad management or mismanagement. I will deal with the details of each of these arguments in the course of my consideration.
The starting point for the determination of this issue is the ordinary and grammatical sense of the statutory words, interpreted having regard to their context and the legislative purpose. Context here is used in the widest sense referable, amongst other things, to the existing state of the law and the mischief which the statute was intended to remedy: AB (a pseudonym) v Independent Broad-based Anti-Corruption Commission [2024] HCA 10 at [21], referring to Alcan (NT) Aluminium Pty Ltd v Commission of Territory Revenue (2009) 239 CLR 27 at [4] and CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
Section 53 of the Crimes Act provides that: Whosoever, being at the time on horseback, or in charge of any carriage or other vehicle, by wanton or furious riding, or driving, or racing, or other misconduct, or by wilful neglect, does or causes to be done to any person any bodily harm, shall be liable to imprisonment for two years.
This is quite obviously not a modern piece of legislative drafting. Indeed, it has been in the same form since the Crimes Act was first enacted in 1900.
The long title of the Crimes Act is "An Act to consolidate the Statutes relating to Criminal Law". The note to section 53 as it was first enacted referred to section 38 of 46 Vic. No. 17, otherwise known as the Criminal Law Amendment Act 1883 (NSW). The marginal note also invites a comparison to section 1 of the earlier Act of 13 Vic. No. 5 (Criminal Law Amendment Act 1849 (NSW)) to extend the provisions of the Stage Carriages Act 1835 (NSW), 6. Will No. 2.
Section 1 of the Criminal Law Amendment Act 1849 provided that the careless or furious driving or racing or other wilful misconduct of any coachman or other person driving any stagecoach or other public carriage carrying passengers for hire was a misdemeanour if any person was maimed or otherwise injured by reason of that conduct.
That Act was similar in terms to, but narrower than, section 78 of the United Kingdom Highway Act 1835 (5 & 6 Will. 4 No. 50) that made it an offence for any person on any highway to ride any horse or beast or drive any sort of carriage furiously so as to endanger the life or limb of any passenger.
In 1861 the Parliament of the United Kingdom passed the Offences Against the Person Act. Section 35 of that Act provided relevantly: Whosoever, having charge of any carriage or vehicle, shall, by wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect, do or cause to be done any bodily harm to any person whatsoever, shall be guilty of a misdemeanour …
This Act was one of six statutes passed in 1861 in which the Parliament sought to consolidate and amend the law in respect of various matters, including the criminal law. The reaction to this by the Government in New South Wales was to appoint a Royal Commission which reported to Parliament with a draft Bill in 1871: see Sir Alfred Stephen and Alexander Oliver, Criminal Law Manual (1883, Thomas Richards, Government Printer). The Bill was eventually passed into law in 1883, becoming the Criminal Law Amendment Act. Section 35 of that Act provided: Whosoever, by wanton or furious riding, or driving, or racing, or other misconduct, or by wilful neglect - he being at the time on horseback, or in charge of any carriage or other vehicle - does or causes to be done any person any bodily harm, shall be liable to imprisonment for a term not exceeding two years.
This provision was essentially the same as the Offences Against the Person Act 1861, except in two respects. The first was that it extended to persons on horseback even though that was not part of the Bill presented as part of the report of the Royal Commission. That extension was also included in section 53 when it was enacted some 17 years later. The second difference is that "wilful misconduct" in the 1861 Act became "misconduct" in the NSW response in 1883.
The purpose of these laws is plain; that is, to reduce the risk of harm or injury to people from various means of transport. For instance, the preamble to the Stage Carriages Act 1835 noted that much inconvenience and danger had arisen to persons travelling by stage carriages conveying passengers for hire for a number of reasons. The conduct of those in charge of such carriages in particular was sought to be reined in by the 1849 amendment to that Act.
The history leading to the final consolidation in the Crimes Act also shows a broadening of the provisions addressed to public safety. In particular, the extension of the criminal sanction of imprisonment in New South Wales to those on horseback as well as those in charge of carriages and other vehicles.
There is also the removal of "wilful" as a component of "other misconduct".
Before turning to a consideration of the text of section 53 of the Crimes Act in that broader context, it is necessary to note two further matters about the modern approach to statutory construction. The first is in respect of consolidating legislation such as the Crimes Act. Although regard may be had to the predecessors to such legislation, it is only in order to fix a meaning of the words at the date of their enactment in the consolidating statute: Maybury v Plowman (1913) 16 CLR 468, 479. For that reason, the Crown's argument concerning the meaning of "misconduct" prior to the first publication of the Oxford English Dictionary in 1884 adds little to the analysis.
That is not to say that the dictionary definitions are irrelevant. Here, they are of assistance to some extent, confirming that there is a broad range of meanings from "bad management" to "wrong behaviour" or "improper conduct". The epithets "bad", "wrong" and "improper", together with other common uses of the word, all suggest that "misconduct" is a protean concept, the boundaries of which is determined very much by its context. That leads me to the second point of construction.
The accused relied heavily on the eiusdem generis rule - a Latin phrase meaning "of the same kind". She argued that, because it is preceded by the words "or other", the word "misconduct" should be construed to mean conduct like furious or wanton driving, or racing. The eiusdem generis rule is one of a number of guides which may be used in the process of interpreting a statutory provision. As I have said, that process directs attention to the provision being construed in its context as well as the scope and purpose of the statute. The rule provides a grammatical justification for reading general words down so as to limit their operation. For its application, it requires that there be an enumeration of things of a particular kind or class so that the general words might then be read as applying only to things of the same kind or class as those enumerated: Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd [2012] NSWCA 181 at [54]; see also Herzfeld P and Prince T, Interpretation (2nd edition, Thomson Reuters, 2020) at [6.50] - [6.100].
One of the problems with the application of the rule here is that the meaning of the more specific words, like "misconduct" itself, depends very much on the context. Thus, "furious" has been construed in this context to mean "driving at a pace or speed which causes danger to the life or person of other users of the road": see Aslan v R [2015] NSWDC 185 at [39]. Similarly, "wanton" was described in that case, at [40], as being reckless conduct involving disregard for the health and safety of others. Importantly, this is an indication that the provision is intended to go beyond intentionally dangerous conduct. That indication is fortified by the fact that, unlike the earlier Offences Against the Person Act, there is no requirement for the "misconduct" to be "wilful".
In my view, the use of these more specific words does provide some context for ascertaining the meaning of "other misconduct". It is important that "furious" and "wanton" are both used to describe the acts of "riding" and "driving". Similarly, "racing" also has a connection with the use of horse, carriage or other vehicle. It would be difficult to race on horseback, or while in charge of a carriage without the use of the horse or carriage. This makes clear what the history of the provision suggests, namely, that the purpose of the provision is to ensure the safety from injury caused by the use of horses, carriages and other vehicles.
Giving effect to that purpose and bearing in mind that the provision imposes criminal sanction on the impugned conduct, "misconduct" in this section must bear a narrower meaning than just "mismanagement" or even "bad management". I conclude that it requires a departure from the expected or required standards of driving a carriage or other vehicle or riding a horse that gives rise to some danger of harm to any person. It is unnecessary to decide whether that includes danger to the person riding or driving, but I consider that that is the better view: cf. in a different context, Chatterton v Parker (1914) 111 LT 380.

The Evidence

Next it is necessary to set out the relevant evidence and my findings based on it.
The agreed facts and the expert evidence may be summarised as follows.
At around 6 AM on 18 December 2021, the accused left her father's property at Bega to drive to Corryong in her Ford Escape. This vehicle is approximately 2 metres wide. She stopped at Berridale to re-fuel and then again at Jindabyne for a break before driving northbound on the Alpine way. She had driven on that road for 25 years on a regular basis and was familiar with it.
The weather was fine and the sky was clear.
On the same morning six members of a social motorcycle group commenced a ride which was to take a long loop through the Kosciuszko Mountain region. At about 10.20 AM the group was riding along the Alpine Way southbound between Khancoban and Geehi.
The roadway at that point was winding and narrow, between 4.5 metres and 6 metres wide, and had no dividing line. There was a steep cliff on one side.
Richard Jones was the first rider, followed by Rick Van Berkel, Terry Robinson and then Roy Wilson. The other two riders were some distance behind.
They were coming downhill and had come around a right-hand turn towards a left-hand bend. On the approach to this left hand bend the road ahead could be seen but closer towards the apex of the bend, the bend became blind to oncoming traffic. Jones was one metre from the edge of the roadway as he approached the corner. Van Berkel took the same line.
The accused's car approached the same corner on the wrong side of the road. Jones had no time to react and impacted with the driver's side of the car, rolled over the car and landed on the left-hand side of the road, halfway onto the dirt verge. This constituted the second offence on the indictment.
Van Berkel made it through a gap and avoided colliding with the car.
Robinson was committed to the bend and could not avoid the accused's vehicle. It struck the right foot region of his motorcycle and hurt his foot. The Crown asserts that this constituted the third offence.
Wilson then ran into the front passenger side door of the accused's car and suffered fatal injuries. This constituted the first offence.
The movement of the accused's vehicle in the 5 seconds prior to the fatal collision with Wilson is best indicated by the diagram at figure 5 to the report of the expert.
The accused's vehicle commenced on the eastern side of the road, that is, the wrong side of the road, and traversed to the western side of the road. The car then went back towards the eastern side of the road, contacting Jones' motorcycle and leaving a gouge mark on the road.
The car then swerved to such an extent that the passenger side was facing Wilson's motorcycle causing the fatal collision.
According to the expert, the accused's car was on the incorrect side of the road between 3.5 and 4 seconds prior to the fatal impact. It was wholly within the southbound lane between 2.5 seconds and 3 seconds prior to that impact.
Between 1.8 and 1.9 seconds prior to the fatal impact there was a sharp steering transition from a right-hand steer to a left-hand steer. This was clearly an evasive action.
The impact with Jones' motorcycle was between 1.3 and 1.4 seconds prior to the fatal impact.
At no time in these 5 seconds did the accused's vehicle exceed 62.3 kph.
In her interview with police the accused said that she travelled on the road reasonably frequently and knew that she had to be aware of wildlife, cars, caravans and bikes and she believed that she was travelling on the left-hand side of the road and did not cross over to the wrong side.
There is no suggestion in the evidence of speed, alcohol, drugs, fatigue or the use of a mobile phone or anything else that may have affected the accused's ability to properly drive her car. She has had a licence for 25 years, has no prior criminal history and no traffic record.

Findings of Fact

The overwhelming and uncontested evidence is that the accused was driving towards a right-hand bend with little to no visibility of oncoming traffic on the wrong side of the road. Her answer to police in her interview that she was on the correct side of the road cannot be accepted. I do not think that that was deliberately false, but given how quickly the incident occurred and the delay between that and the interview as well as the uncontested expert evidence, it is unreliable.
Those facts alone mean that the accused was in charge of a vehicle and driving in a manner that was dangerous to other users of the road. It does not matter for present purposes whether this was due to momentary inattention or a deliberate decision made by the accused.
The fact that she was travelling at no more than 62.3 kph does nothing to change that conclusion. At that speed, she was covering a distance of a little over 16 metres per second. When the speed of any oncoming traffic is taken into account, her position on the road left little, if any room for anyone on the road to avoid a collision. Any collision was likely to cause harm to the other person. In this instance, that manner of driving did cause bodily harm to another person: Mr Robinson.
In my view, her manner of driving amounted to "other misconduct" within the meaning of section 53 of the Crimes Act.
As a consequence of those findings, I am satisfied beyond reasonable doubt that the Crown has established each of the elements of the offence in count 3 in the indictment and I find that the accused is guilty of that offence.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 March 2024

Criminal Law Amendment Act 1849(NSW)

Criminal Law Amendment Act 1883(NSW)

(UK) Offences Against the Person Act 1861(NSW)

Stage Carriages Act 1835(NSW)

(Criminal Law Amendment Act 1849(NSW)

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