R v Wright [1999] VSCA 145

"1. The learned trial judge erred in that he failed to exclude evidence as to the consumption of alcohol on the basis that such evidence was:

(b) if it was admissible, its probative value was outweighed by its prejudicial value.

2. The verdict is unreasonable and cannot be supported by the evidence in that the evidence as to:

(a) the manner of driving at the time of the accident;

(b) the speed of the motor vehicle at the time of the accident;

(c) the effect of alcohol consumption at the time of the accident;

either individually in respect of the above issues, or in combination with each of these matters and any other matters, does not establish the requisite degree of negligence.

3. There was a miscarriage of justice in that the learned trial judge failed to adequately or properly direct the jury as to how they could use the evidence of alcohol consumption.

4. There was a miscarriage of justice on the basis of how the prosecution had put the case in respect of the issue of alcohol consumption.

5. The learned trial judge failed to obtain undertakings from the jury on their separation after the first day of deliberation as required by s.51A Juries Act 1967."

33. The transcript shows that s.51A of the Juries Act was complied with. Accordingly ground 5 was not argued. Grounds 1, 3 and 4 were abandoned in the course of the hearing, leaving only ground 2 to be considered. It should be noticed, however, that much of the argument that was advanced in support of ground 1, before it was abandoned, is relevant to a proper consideration of ground 2.

37. At the outset of the hearing Mr. Salek applied for leave to add a new ground of appeal by substituting the following for ground 3:

"The learned trial judge erred in directing the jury in answer to the jury's question as to the definition of gross negligence."

That application was not opposed by Mr. Horgan but he did foreshadow that, if leave were granted, he would rely on the facts that no exception had been taken to the direction referred to in the proposed ground and that the alleged misdirection was capable of cure. The Court heard argument as to why leave should be granted. After a short adjournment we refused leave for reasons to be given later. The following are my reasons for joining in that refusal.

42. The form of culpability charged in the presentment was negligence, that is to say, that the applicant failed 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: see s.318(2)(b) of the Crimes Act 1958. The standard directions touching such negligence are well established: see, for example, R. v. Horvath [1972] VicRp 60; [1972] V.R. 533 at 539, R. v. Stephenson [1976] VicRp 34; [1976] V.R. 376 at 382-384, R. v. Taafe [1998] VSCA 4; (1998) 102 A.Crim.R. 472 at 479-480 and R. v. Franks (No. 1) [1998] VSCA 100 at [5]. As Winneke, P. observed in the last-mentioned case, the negligence referred to in s.318(2)(b) is equivalent to the criminal negligence sufficient to support the crime of manslaughter: see R. v. Shields [1981] VicRp 68; [1981] V.R. 717 at 724.

45. The learned judge directed the jury as to the elements of the offence in terms that are not criticized. After the jury had deliberated for two-and-a-half hours, they asked two questions. The second was a request for "a better definition of the degrees, if we can get it, between negligence and gross negligence". His Honour responded as follows:

"First, if I may, just to put it in context, I will repeat what I told you this morning, then I will add a rider, which I did not say this morning, that may assist you.

I told you this morning that at civil law every person owes a duty to take reasonable care to avoid injuring others by his actions and that civil negligence is a failure to take that care. In the context of driving a motor car, any driver on a highway owes a duty of care to others on the highway including his passengers, to drive the vehicle as a reasonable and prudent person would drive it to avoid causing injury to those others.

I also told you that if a person fails to take such reasonable care for the safety of others and injures somebody, he can be sued for damages and made to pay compensation accordingly. That is the civil law.

In a criminal trial for criminal negligence, as this case is, the Crown must prove that the accused failed 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.

To prove criminal negligence, which is what you are concerned with, the Crown must prove not merely that the accused failed to exercise reasonable care for the safety of others, but that the departure from the standard of care owed to others was such that it deserves to be called a gross departure from that standard. That is what I said to you this morning.

A rider may assist you if I say this. You would need to be satisfied that the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment."

The learned judge asked whether that helped the jury. The foreman replied that it did. After the jury retired to continue their deliberations, his Honour told counsel that the rider came from Andrews v. Director of Public Prosecutions [1937] UKHL 1; [1937] A.C. 576.

55. The passage in question is very well known. It has been part of the elementary equipment of criminal lawyers for generations. I shall nevertheless set it out in full, having regard to one of Mr. Salek's submissions. Lord Atkin, in whose speech the other members of the House concurred, said:

"So at a much later date in Rex v. Bateman a charge of manslaughter was made against a qualified medical practitioner in similar circumstances to those of Williamson's case. In a considered judgment of the Court the Lord Chief Justice, after pointing out that in a civil case once negligence is proved the degree of negligence is irrelevant, said ..., 'In a criminal Court, on the contrary, the amount and degree of negligence are the determining question. There must be mens rea.' After citing Cashill v. Wright, a civil case, the Lord Chief Justice proceeds: 'In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets such as "culpable," "criminal," "gross," "wicked," "clear," "complete." But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.' Here again I think with respect that the expressions used are not, indeed they probably were not intended to be, a precise definition of the crime. I do not myself find the connotations of mens rea helpful in distinguishing between degrees of negligence, nor do the ideas of crime and punishment in themselves carry a jury much further in deciding whether in a particular case the degree of negligence shown is a crime and deserves punishment. But the substance of the judgment is most valuable, and in my opinion is correct. In practice it has generally been adopted by judges in charging juries in all cases of manslaughter by negligence, whether in driving vehicles or otherwise." (Emphasis added but footnotes omitted.)

59. Mr. Salek explained that, if leave were granted to add the proposed ground of appeal, it would be his submission that the rider operated as a restriction on the directions that had preceded it, conflicted with the guidance given by the Full Court in Horvath's Case at 539 and suggested to the jury that it was sufficient that the applicant's conduct deserved punishment. Counsel added that a reference to punishment was particularly damaging in the emotional atmosphere of a case concerned with culpable driving causing death and drew attention to the third last sentence in the above passage from Lord Atkin's speech.

62. The decision to grant or refuse leave to amend or add to grounds of appeal is an exercise of judicial discretion. A number of factors may be, and commonly are, relevant. One very important matter is whether the new ground appears to have sufficient prospects of success for the court either to grant leave or to permit full argument, reserving the decision on leave. Sometimes the prospects cannot be disentangled from a failure to take exception, for counsel's impression at the trial may show that the point is without substance. In the present case I shall begin my reasons for joining in the refusal of leave by dealing, in summary fashion, with counsel's proposed submissions.

65. In ordinary usage a rider is an addition. It need not be restrictive. The jury would not have thought that the emphatic directions they had been given as to the necessity for a gross departure from the standard of care of a reasonable person were being qualified. They would have understood the rider as a further way of assisting them to distinguish between civil and criminal negligence. Horvath's Case does not prohibit assistance with respect to that topic, particularly in response to a jury question: see R. v. Stephenson especially at 383 lines 32-40. The passage from R. v. Bateman quoted by Lord Atkin in Andrews v. Director of Public Prosecutions is part of the basic armoury of trial judges, in other contexts, to explain the distinction that was troubling the jury. Compare the last two sentences of the passage quoted in [11]. It still forms part of the standard charge on manslaughter by criminal negligence. See also R. v. Shields at 723 lines 44-55. I do not overlook the three paragraphs on the next page of R. v. Shields or suggest that a Bateman direction is ordinarily desirable in a case under s.318, but this jury would not have been distracted from their task, or prejudiced against the applicant, for the rider was just that: a footnote to otherwise uncriticized directions.

68. There were three other factors relevant to the exercise of discretion in this case. First, this was a late application to amend grounds. The original grounds had been professionally drawn. It was not as if counsel had been brought in at the last minute to represent a previously unrepresented applicant. As Batt, J.A. said in R. v. Haseloff [1998] 4 V.R. 359 at 375-376:

"Speaking generally, the court should, in my opinion, discountenance late applications for leave to amend by the addition of new substantive grounds (as opposed to the correction of some inadequacy or infelicity of expression) on behalf of applicants who have had legal representation for some time and have had ample opportunity earlier to consider the adequacy of the grounds in the notice of application. Late applications for amendment cause real difficulties for the respondent and impose unnecessary burdens on the members of the court and their staff and the registrar and his staff. Further, the grounds will frequently be such as to make it desirable, if not necessary, for a further report to be obtained from the trial judge either for the assistance of the court or to enable the trial judge to make any explanation he or she desires to make. There are difficulties in obtaining further reports from a trial judge at the eleventh hour. The judge may be on circuit or on leave and, even if available, may not, particularly with other commitments, have sufficient time for reflection or for checking the transcript of the trial and his or her notes."

72. Secondly, no exception was taken to this direction at the trial. The cases on failure to take exception are legion. As Brooking, J.A. observed in R. v. Gallagher [1998] 2 V.R. 671 at 681, they are usually concerned with failure to take exception to the charge but the principle is of more general application. His Honour referred to the following passage in the judgment of Yeldham, J. in R. v. Tripodina and Morabito (1988) 35 A.Crim.R. 183 at 191:

"... it is the duty of counsel appearing at the trial to take objection to matters which, in their view, are irregular, or which might be unduly prejudicial to their client, and in particular to raise, in relation to the summing up, any matters which the trial judge may have overlooked or which, in their view, he has put erroneously. This will afford the judge an opportunity ... of considering the propriety of the steps which he has proposed should be taken and of deciding whether or not, in relation to his summing up, there are matters which he should amend or retract, or additional matters which he should put .... Although it is true ... that in a criminal trial the judge must be astute to secure for the accused a fair trial according to law, none the less, as has been pointed out on many occasions and over a great many years, the fact that no objection is taken to a procedural step adopted by the trial judge, or to matters put or omitted by him in his summing up, is cogent evidence indeed, in most cases, that counsel absorbed in the atmosphere of the trial saw no injustice or error in what was done."

76. So, too, in R. v. Calides (1983) 34 S.A.S.R. 355 at 359 Wells, J. said:

"It was pointed out to us that no objection was taken by either counsel to the learned trial Judge's summing up. Let me say [at] once that I always attribute great weight to the reaction of counsel at a trial. It is very much their task to monitor the summing up as it progresses, to make notes of matters to which they would wish to invite the learned trial Judge's attention, and to be careful to bring forward anything that might possibly lead to a mistrial. The reason why it is important that they should do this is that if they are left with the impression that the summing up was fair and reasonable and properly balanced, then there is so much the less reason to suppose that there has been a miscarriage of justice, and if the matters hang nicely in the balance, such an attitude by counsel could well be decisive. It is particularly useful and critical where the appeal is concerned with the discussion of evidence, with inferences, with the presentation of the defence, with all matters of debate with which a jury is closely concerned, and which show themselves, by the general course of the trial and the structure of the issues developed at it. "

80. The locus classicus in this State is R. v. Clarke and Johnstone [1986] VicRp 64; [1986] V.R. 643 at 661-662, discussed in R. v. Gallagher at 681-684, 688-690 and 702. In that case I adumbrated a possible criterion where an applicant seeks to rely on a point not raised below, but Brooking, J.A. and I were both careful to leave the point open: see 684 and 690. It does not require further consideration on the present occasion. It is sufficient to say that there is a spectrum ranging from a point that is hopeless to a point that discloses an error or irregularity to which the proviso could not be applied.

83. The cases are also numerous which recognize that late applications to amend may be granted if the justice of the case requires and that there is no inflexible rule that an exception must be taken at trial. Batt, J.A. emphasized that in the sentence immediately following the passage set out in [15]. See also the actual decision in R. v. Calides.

86. It is not permissible to formulate general rules fettering the discretion of this Court on a criminal appeal to allow a new point to be raised or our duty to rectify a substantial miscarriage of justice: see R. v. Clune (No. 2) [1996] VicRp 1; [1996] 1 V.R. 1 at 6, K.B.T. v. R. (1997) 191 C.L.R. 417 at 423-424 and 435-436 and Papakosmas v. R. [1999] HCA 37 at [44]. (Judgment in the last case was given on 12th August 1999 at the same time as we were giving our ruling on the application for leave to amend.) That is not to say that useful criteria may not be identified or that a consistent practice should not be developed. On the contrary, principled criteria and consistent practice are part and parcel of doing equal justice. They may be facilitated by an appropriate rule of court. There is an analogy in the civil sphere: compare Department of Premier and Cabinet v. Hulls [1999] VSCA 117 at [8]. But the analogy cannot be pressed too far. The Crown, unlike a civil litigant, has no interest in "winning" a criminal case: its only interest is in seeing that justice is done.

89. Thirdly, as I have previously mentioned, the application for leave to add the new ground was not opposed. That is a relevant factor but, as our refusal shows, it is not decisive. It indicates little more than that the Crown is not unfairly prejudiced in its conduct of the case and will abide by the Court's ruling.

92. Taking all the foregoing considerations into account, I did not consider that it was in the interests of justice to allow the new ground of appeal to be added.

96. The Court was asked to undertake an independent assessment of the evidence to determine whether, in accordance with such authorities as M. v. R. [1994] HCA 63; (1994) 181 C.L.R. 487 at 493-495 and Jones v. R. (1997) 191 C.L.R. 439 at 450-452, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the kind of culpable driving causing death with which he was charged.

99. Shortly after 7.30 p.m. on 12th September 1996 the applicant and his friend Douglas Watson procured a 700 ml. bottle of Bundaberg rum. They were both aged 17 but they persuaded a friend of theirs who was two weeks short of 18 to purchase it for them. They told her they were going back to Clint's place. Clint Leys is the son of Mrs. Linda Kirk, with whom the applicant had been living for the last four months. When he returned home after finishing work at 8 o'clock he found the two boys drinking rum and Coca Cola mixed in equal proportions in shot glasses. He joined them, drinking straight rum himself. They finished the bottle between about 8.30 and 10 p.m. The applicant and Watson drank about a quarter each.

102. Leys stayed home, working on the drums he plays as a hobby and listening to music. The others went for a walk through the streets of Warragul, eventually chancing upon a panel van parked on a nature strip. It was a 1975 model with a V8 engine which had been fully rebuilt and since then had travelled only 20,000 kms. The car had an automatic transmission and the brakes had recently been repaired, but the tyres were half-worn and the body had some rust. The owner described it as ugly but well maintained. A police mechanic who inspected it after the accident found that the handbrake did not work and that the rear suspension shackle bushes were worn, but he thought that the consequential handling problems would be very minor. He also considered the rust to be excessive. In those limited respects, the car was not roadworthy.

105. The two boys repaired to a park, wondering whether to take the car for a joyride. The applicant admitted in his interviews with the police that the rum played some part in the decision. It gave him "a bit of a boost". They returned to the car and took off, initially at a careful speed but without lights. By the time of the accident, however, the applicant, who was driving, was wearing a seatbelt and the headlights were on. He was driving in open country without street lights.

108. The accident took place on a fairly narrow gravel road with which the applicant was not familiar. The evidence at the trial was that it was in good condition. There were no speed limit or warning signs. The applicant accelerated down the road for some 200 metres, attempted to perform a "wobbling" manoeuvre and lost control. There were marks, which the evidence clearly established as yaw marks, for some 45 metres before the van crashed with great force into trees at the side of the road. Most of the damage was on the passenger's side. Tragically, Watson was killed, dying not long afterwards in a nearby paddock.

111. Mr. Salek submitted that the evidence in regard to the manner of driving at the time of the accident and the speed of the vehicle were of insufficient quality to warrant a conviction. There is no doubt that the applicant, who was unlicensed, endeavoured to perform a manoeuvre that went badly wrong. In the course of the second interview he admitted that he moved the steering wheel "backwards and forwards" for fun. As he said, "I wasn't thinking. Just a very stupid thing to do." It is not surprising, therefore, that counsel's submissions were primarily directed to the evidence of alcohol consumption and speed.

114. Evidence of alcohol consumption may be led to prove an offence against s.318(2)(b). It is not confined to an offence against s.318(2)(c). As sub-s.(3) provides, the presentment must specify the form of culpability charged but evidence of the whole of the circumstances, sc. so far as they are relevant, is admissible. The accident occurred at about midnight. It was relevant that the driver was an inexperienced 17 year-old who had consumed approximately a quarter of a bottle of rum in the course of the evening. In deciding whether the verdict is unsafe or unsatisfactory, I proceed on the basis that that is practically all that the evidence showed. The evidence as to the applicant's probable blood alcohol level was speculative, based on the blood alcohol level of the deceased, which was .04%. A toxicologist agreed that absorption and elimination rates varied between individuals and that it was at least possible that the applicant had a zero blood alcohol level at the time of the accident. I consider that the jury were nevertheless entitled to conclude that alcohol, and not just high spirits and inexperience, affected the applicant's manner of driving to some degree.

117. Sergeant Bellion is a civil engineer with specific expertise in the investigation and reconstruction of motor vehicle accidents. From information supplied by Senior Constable Schultz and his own observations at the accident site, he calculated the likely speed immediately before the applicant lost control as between 97 and 103 k.p.h. Those calculations were based on the vehicle's having yawed, i.e. rotated around its vertical axis with the wheels still moving, rather than skidded. As I have already indicated, there is no reason to doubt that assumption. They were also based on measurements taken by an inexperienced officer who was still under training, but he was acting under direct supervision.

120. In his interviews with the police the applicant said that he believed he was doing only 45 to 50 k.p.h. One of the interviewing police proffered the opinion (which he later regretted in the witness box, saying that it had been misconstrued) that the speed would have been perhaps 50 to 60 k.p.h. The applicant's inexperience tells against his estimate, but far more telling is what he said to others on the morning following the accident. Although Leys was shaken to some extent in cross-examination, the jury could conclude that the applicant told him that he was driving at about 80 k.p.h. More significantly, the ambulance officer who attended him noted that he said about 80 or 90 k.p.h. (Although his written report was made a week later, it was based on information entered on his computer the same day.) Mr. Salek reminded us that the applicant was in pain. The applicant's own estimate of its severity was 9 out of 10, but the ambulance officer expressly said that he was lying fairly quietly on the bed and was not in a distressed state.

123. In my opinion, the jury were entitled to conclude, on the whole of the evidence (excluding that relating to the blood alcohol level of the deceased), that the applicant failed 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. Ground 2 is not made out.

127. Mr. Horgan properly conceded that detention in a youth training centre rather than imprisonment would be an appropriate disposition, but it is still our duty to be satisfied that appellate intervention is open. As Charles, J.A. recently re-affirmed in R. v. Berisha, Elmazovski and Rizmani [1999] VSCA 112 at [34], it is necessary to keep clearly in mind that the question for this Court is not whether a lesser sentence might have been thought appropriate. It is whether sentencing error has been shown or the sentence imposed is beyond the range appropriate to the particular offence and the circumstances of the offender.

130. The grounds of appeal touching sentence read:

1. The sentence is manifestly excessive in that the applicant:

(a) was aged 17 at the time of the offence and 19 at the time of sentence;

1. The sentence is manifestly excessive. (The applicant repeats the matters set out in the application for leave to appeal sentence on theft of motor car.)

2. The learned sentencing judge erred in placing too much weight on the need for general deterrence."

146. There is a sense in which a sentence of imprisonment may be "manifestly excessive" in comparison with a sentence of detention. Another way of expressing the point is to say that the sentence of imprisonment is clearly, not just arguably, inappropriate: see R. v. Mantini [1998] 3 V.R. 340 at 349.

149. The solicitude of the law for young first offenders is grounded in the public interest in their rehabilitation. It is sufficient for present purposes to refer to R. v. Mills [1998] 4 V.R. 235 at 241 and the cases there cited, especially R. v. Misokka (unreported, Court of Appeal, 9th November 1995), where this Court substituted a sentence of detention in a youth training centre for a sentence of imprisonment. In that case we were able to rely on a pre-sentence report that had been obtained below. In the present case we ordered a report ourselves, being satisfied that neither the opening words of s.96 of the Sentencing Act 1991 nor s.568(4)-(6) of the Crimes Act presented an obstacle to our doing so.

152. A short report was provided to us on 16th August 1999, followed by a more detailed report on 31st August 1999. The conclusion in the first report is expressed in the following paragraph:

"Glen at 20 years of age is a young man with no prior criminal record, who has demonstrated a stable lifestyle since the commission of the offence and has very good prospects for rehabilitation. In addition Glen is perceived as a young man who would be vulnerable in the adult prison system and he is therefore deemed as a suitable person for a Senior Youth Training Centre sentence."

156. That accords with the findings of fact made by the learned judge, who said, among other things:

"I also take into account your candour with the investigating police and your demeanour in this court as further evidence of genuine remorse. In addition you have, it seems, greatly matured as a result of your experience. You have returned to school, if I may so describe the [Technical] and Further Education Institute, where you are studying Hospitality and Tourism. You have provided written references to your improved perception of life. You have urged others not to behave as you behaved on the fatal day. In short, there may well be little call for specific deterrence. That is, the need to deter you from offending again in the sentencing process. Finally, you are even now but nineteen and a half."

His Honour also referred to the applicant's unsettled background. Evidence was given on the plea that his father had been in and out of gaol for the last eight years. The applicant had lived alone for about a year before being offered a home by Mrs. Kirk. In those circumstances, it is to his credit that he had no prior convictions.

161. The more detailed report concurs in the conclusion in [37] but warns against the dangers to the applicant, and the impediments to his rehabilitation, even in a youth training centre. It recommends a community based disposition.

164. I hesitate to differ from a sentencing judge who has turned his mind to an alternative disposition and rejected it, but there is more than one indication in the sentencing remarks themselves that his Honour felt disquiet about the effect of imprisonment on the applicant. The grounds for that disquiet are confirmed by the second pre-sentence report. None of the authorities mentioned at [36] was cited to him. I respectfully agree with his Honour that general deterrence was relevant in this case and required a custodial sentence, but in my view the applicant's prospects of rehabilitation made it clearly inappropriate for him to be confined in an adult prison. Accordingly it falls to us to re-sentence him.

167. I would confirm the sentence on the count of theft, substituting detention in a youth training centre for imprisonment. Taking the circumstances of the offences as well as those of the offender into account, I would sentence the applicant to two years' detention on the count of culpable driving causing death and allow the sentences to be served concurrently pursuant to s.33(1) of the Sentencing Act. There should be a declaration of pre-sentence custody under s.35 in respect of the period before the applicant was granted bail pending appeal. The Court has no power to suspend the sentence or to fix a non-parole period and we must not have regard to any possibility or likelihood that the length of time actually spent in custody by the applicant will be affected by executive action of any kind: see s.5(2AA)(a). I do, however, subscribe to the suggestion made by the learned Chief Justice in the course of the hearing that we might recommend to the Youth Parole Board that the applicant be released on parole at the earliest time that the Board thinks proper in the light of all the circumstances, including the second pre-sentence report and the fact that only nine months were to be served under the original sentence.