R v Heron [2003] VSCA 76 (19 June 2003)

Last Updated: 14 July 2003

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 63 of 2002

THE QUEEN
v.
MARK RAYMOND HERON

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JUDGES:	CHARLES, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 June 2003
DATE OF JUDGMENT:	19 June 2003
MEDIUM NEUTRAL CITATION:	[ 2003] VSCA 76

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Criminal law - Culpable driving - Charge to jury given before decision in R. v. De'Zilwa [2002] VSCA 158 - Explanation of gross negligence required in the circumstances of the case - Causation - Issue whether the culpable element in the driving caused death wrongly taken away from jury.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr P.G. Priest, Q.C. with Mr M.J. Croucher	Leanne Warren & Assoc.

CHARLES, J.A.:

1. I have had the advantage of reading the reasons for judgment prepared by Buchanan, J.A., and, subject to the following, agree that the appeal must be allowed for the reasons given by his Honour.
2. I entirely agree that in R. v. De Zilwa[1], the Court did not intend to establish a statement of law binding on judges conducting trials before the decision in that case. The Court was, as Winneke, P. said in R. v. Scott[2], intending to achieve a modification of the standard directions in cases where culpable driving is alleged under s.318(2)(b) of the Crimes Act 1958, and to give greater assistance to juries in the manner suggested by Buchanan, J.A.[3]
3. In the present case the allegation that the applicant drove negligently was based upon the speed at which his car was travelling. As Buchanan, J.A. points out, the estimates given of the speed of the car varied dramatically and it would have been open to the jury to conclude that the speed was anywhere between 90 kph (the applicant's own version) and 140 kph (the higher estimate given by the police expert). Two civilian eyewitnesses used the figure 95 kph in their evidence. If the jury were not satisfied beyond reasonable doubt that the applicant was travelling at more than 95 kph, on a section of road where the speed limit was 80 kph, I very much doubt that the applicant's driving (although negligent and in breach of the Road Safety Regulations) approached the level of negligence sufficient to warrant the intervention of the criminal law, or a verdict of manslaughter. In my view the jury, in this unusual case, should have been given a direction such as that suggested in De Zilwa[4] to enable them adequately to consider the applicant's guilt or innocence. I agree in particular with what Buchanan, J.A. has written in paragraphs [18]-[19].
4. I also agree, with respect, that the judge in his directions may have left the

jury thinking that the only issue was whether the applicant's driving was negligent to a gross degree, thus taking away from the jury the issue whether the applicant's driving was a substantial cause of death or injury. In this respect the judge may well have been misled by the statement made by the applicant's counsel at the outset of the trial that there was "no issue with the injuries, death, cause of death". But, having read counsels' addresses to the jury, it is clear that the issue of causation remained a live one for the jury.

BUCHANAN, J.A.:

5. Towards midnight on 30 September 1999 in the eastern suburbs of Melbourne a black Holden Commodore driven by the applicant smashed into a Ford sedan driven by James Luquet. The front seat passenger in the Ford was killed. The driver of the Ford and the front seat passenger in the Commodore were seriously injured.
6. The applicant was arraigned in the County Court and pleaded not guilty to a presentment containing one count of culpable driving causing death (count 1) and two counts of negligently causing serious injury (counts 2 and 3). After a trial, the applicant was found guilty on each of the counts. He was sentenced to be imprisoned for a term of four years on count 1 and for a term of one year on each of counts 2 and 3. The sentencing judge ordered that six months of the sentence on count 2 be served cumulatively on the sentence on count 1, producing a total effective sentence of four-and-a-half years' imprisonment. His Honour ordered that the applicant was to serve a period of two years' imprisonment before he was to be eligible for parole.
7. The applicant seeks leave to appeal against his conviction on the following grounds:

"1. The trial judge erred in his directions concerning the elements of negligence in each count; and in particular - (a) he failed to direct sufficiently or at all that the negligence required was the same as for the crime of manslaughter; (b) he failed to direct sufficiently or at all that, in order to convict, the jury were required to find 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 grievous harm would follow, that the driving causing death merited criminal punishment. 2. The trial judge erred in that his directions were apt to withdraw the element of causation from the jury. 3A. A miscarriage of justice resulted from the taking of majority verdicts before the jury had deliberated for at least six hours. 3B A miscarriage of justice resulted from failure of the trial judge to give further directions, before accepting majority verdicts, to the effect that - (a) it was still preferable that the jury endeavour to reach unanimous verdicts; (b) the jury should endeavour to do so unless it was hopeless."

8. The first two grounds depend upon the nature of the case advanced by the Crown. The accident took place at the intersection of Ferntree Gully Road, Watsons Road and Strada Crescent. The intersection was controlled by traffic lights. At that point Ferntree Gully Road consisted of three lanes in each direction with a fourth lane for vehicles wishing to turn right into either Watsons Road or Strada Crescent. There was a slight rise in Ferntree Gully Road approaching the intersection. The speed limit for traffic in Ferntree Gully Road was 80 kilometres per hour. Both drivers entered the intersection facing a green light, both travelling in Ferntree Gully Road, the applicant proceeding west, Luquet east. Luquet turned right to enter Strada Crescent. His car was struck by the Commodore as he turned across the west-bound carriageway.
9. The evidence of the witnesses varied as to two significant issues: the speed of the Commodore and whether the Ford stopped before commencing to turn into Strada Crescent.
10. Luquet gave evidence that he stopped in the right-hand turn lane to let five or six oncoming cars pass. He saw no other cars and commenced to turn. His next recollection was waking up in hospital. The driver of a car travelling west in Ferntree Gully Road, who had pulled over to the side of the road, said that he saw the Commodore travelling at a speed he estimated to be at least 95 kilometres per hour. Another driver of a car proceeding west in Ferntree Gully Road estimated the speed of the Commodore at 100 kilometres per hour. The driver of another car proceeding west in Ferntree Gully Road said she was travelling at 80 kilometres per hour and was overtaken by the Commodore. She estimated its speed at between 95 and 100 kilometres per hour. She said that she saw a Gemini motor car stationary at the intersection in the right-hand lane. A passenger in the applicant's car said that he was not paying particular attention to the applicant's speedometer, but did not have any concern about the speed. He saw the Ford travelling towards the intersection, but did not see it stop before it commenced to turn. The driver of a car proceeding west in Ferntree Gully Road in the right-hand turn lane was commencing to execute a U turn at the intersection when she saw a black car going past on her left, travelling very fast at a speed of at least 100 kilometres per hour. She said that she saw the Ford slow down prior to turning right, but was unable to say whether it stopped before turning.
11. A senior constable of police, a member of the Major Collision Unit, attended at the scene of the collision, conducted a survey and took measurements. He said that as a result of calculations based upon gouge, skid and scuff marks on the road, he estimated that the speed of the Commodore immediately before it began to skid, shortly prior to the accident, was between 130 to 140 kilometres per hour.
12. The applicant was interviewed by the police after the accident and said that he estimated his speed at 90 kilometres per hour.
13. The evidence on behalf of the defence consisted of the testimony of a research engineer. He said that there was no solid basis for assuming that all four wheels of the Commodore were in contact with the ground from the point of impact to the Commodore's place of rest, and this would have a bearing upon an estimate of the speed of the Commodore performed in the manner conducted by the police expert. He calculated the speed of the Commodore before it began to skid was between 106 and 122 kilometres per hour.
14. The culpable driving with which the applicant was charged was that described by s.318(2)(b) of the Crimes Act 1958, which provides that a person drives culpably if he drives "negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case." The trial judge echoed those words in his charge to the jury. He said:

"We are here concerned with a criminal trial. With the criminal law and in this case, as each counsel has put it to you, 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 the forbidden act of driving in this case, the Crown must prove not merely that the accused failed to exercise reasonable care for the safety of others, which would be the case in a civil trial for damages, but this departure from that standard of care owed to others, was such that it deserved to be called a gross departure from that standard. The Crown must prove beyond reasonable doubt that the accused was, to a gross extent, negligent."

Thereafter his Honour reiterated on several occasions that the Crown was obliged to prove that the accused was negligent to a gross extent.

15. In explaining the concept of culpable driving constituted by negligence in this way his Honour conformed with the earlier pronouncement of this Court that:

"[T]he proper course for the trial judge to adopt is to confine himself to the very terms of the relevant legislation to draw attention to the requirement that the jury must be satisfied that there has been a failure on the part of the accused to observe the prescribed standard of care and that the failure must not only be unjustified but must be to a gross degree. The legislature has in words prescribed the degree of departure from the standard of care required to constitute the offence, and to do more than emphasize that the departure from the stated standard of care must be gross is only likely to obscure the nature of the task before the jury."[5]

16. In R. v. De'Zilwa[6] this Court held that in future cases of culpable driving constituted by negligence, juries should be directed that the offence consisted in driving involving such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, involving such a high risk that death or serious injury would result, that the driving merited criminal punishment.
17. The Court was careful to say that they were prescribing a standard for the future. [7] In R. v. Scott[8] it was held that the failure of a judge in a charge made before the decision in De'Zilwa to give a direction equivalent to those given in cases of involuntary manslaughter did not constitute appellable error. On this appeal Mr Priest, counsel for the applicant, submitted that in De'Zilwa the Court declared the law as distinct from creating a rule of practice.[9] A rule of practice does not have retrospective effect, and thus does not necessarily render erroneous a charge which departs from the rule. A declaration of the law, on the other hand, binds trial judges as a requirement that existed before it was declared. Accordingly, he submitted, the trial judge erred simply because he failed to explain negligence in the terms used in De'Zilwa.
18. In my opinion, the Court in De'Zilwa did not intend to establish a statement of the law binding on trial judges conducting trials whether before or after the decision in De'Zilwa, but to formulate an explanation of the concept of negligence which the Court considered would generally be of greater assistance to juries arriving at an accurate understanding of a critical element of the offence than the standard explanation hitherto employed, and thus one which should be used in the future to guard against misunderstanding by juries. That is not to say that a direction on the lines of that discussed in De'Zilwa might not be required in a particular case notwithstanding that the trial was conducted before the decision in De'Zilwa. Where negligence is in issue, in that there is room for debate as to whether the conduct of the accused was negligent in the sense required by s.318(2)(b), it may be necessary to do more than repeat the words of the section to ensure justice is done. In my opinion, the present was such a case.
19. In the present case, it was open to the jury to find facts which disclosed negligence that was no higher than that required to constitute a cause of action in civil law. In R. v. Scott there were two competing versions of the facts, one largely exculpatory and the other clearly consistent with gross negligence. In the present case, on the other hand, the jury could have found facts in a gradation over a scale ranging from driving in a merely careless manner to driving which amounted to negligence that was gross or outrageous, depending upon the jury's view of the speed at which the applicant was driving and whether the driver of the Ford stopped before turning across oncoming traffic. The witnesses' estimates of the speed of the applicant's motor car varied from 95 to 140 kilometres per hour. Luquet said that he stopped before commencing to turn. Other witnesses said he did not stop. In my view, fairness to the applicant required an explanation of the offence in terms which made clear its kinship to manslaughter. In the circumstances of this case I consider that the judge failed to explain the law to the jury in a manner that adequately related it to an issue to be decided by the jury. The trial judge's failure is entirely understandable, but in the circumstances of this case the possibility of a miscarriage of justice cannot be ruled out.
20. Both the prosecutor and defence counsel in their addresses to the jury raised the question whether the applicant's driving caused the accident which resulted in death and injury. There was no doubt that the collision between the Commodore and the Ford caused death and injury. What was in question was whether the collision was caused by the applicant driving at an excessive speed. If Luquet would have turned in the path of the Commodore even if it had been travelling at a speed which was not grossly negligent, the culpable element in the applicant's driving did not cause the accident.[10] On the other hand, if excessive speed on the part of the applicant was a substantial and operative cause of the accident, the element of causation was satisfied even though other factors, such as the fact that the accident occurred at night, the colour of the Commodore and the presence of the stationary car facing Luquet, may also have contributed to the accident.[11]
21. The trial judge's directions to the jury appeared to confuse two aspects of causation: whether the collision caused death and injury and whether culpable driving on the part of the applicant caused the collision. His Honour may have intended to convey to the jury that the second question remained open, but the words he employed did not make that clear.
22. Early in his charge, the trial judge said:

"It is sufficient if bad driving was a substantial and operative cause of the death. It does not have to be the sole cause of it. Obviously a mistake made by another driver, or some other circumstance or circumstances, might be a part of the totality of the things which lead to the occurrence of the death, but if one of the substantial and operative things causing the death was the forbidding driving, then in law, the death has been caused by it."

That statement was unexceptionable. Unfortunately, his Honour went on to say in effect that causation was not in issue. He told the jury:

"Now it is very important that you realize that that is not the end of it. The fact that the death was caused by the accident. No one argues about that and no one argues that the driving of the accused man was a substantial and operative cause of the death. The battleground is in this particular forbidden way of driving."

The trial judge's subsequent remarks reinforced the impression that the only issue was whether the applicant's driving was negligent to a gross degree. He said:

"I repeat, the Crown must prove that in driving his motor vehicle, the accused departed to a gross degree, from the standard of care he owed to others in all the circumstances of the case, that the death of another person occurred, that is not in issue, and that the accused's departure from the standard of care he owed to others, was a substantial and operative cause of that death. Now, I repeat, the battleground in this case is this area of 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."

Later, he said:

"So far as the addresses of counsel are concerned, Mr Gibson said in his opening that you should rely on your common sense and that the driving of the deceased was a substantial and operative cause of the death, and that is not in issue."

23. In my opinion, there was a real danger that the jury may have thought that the only issue in the case was whether the applicant's driving was negligent to a gross degree, and that if they found that it was, they could assume that it was a substantial cause of death and injury. In fact, the jury were also required to decide the live issue whether, if the speed of the Commodore was excessive, that circumstance was a substantial and operative cause of the accident.
24. Section 46 of the Jury Act 2000 provides that a court may take a majority verdict if a jury is unable to agree or has not reached a unanimous verdict after deliberating for at least six hours. Whether the jury in the present case deliberated for six hours depends upon whether they continued to deliberate while eating their lunch. Normally it is to be assumed that a jury will deliberate over lunch. In the present case there is some doubt as to whether that assumption should be made, for the trial judge told the jury:

"You can talk about it over lunch, but no one expects you to be deliberating over lunch hour."

25. It is not necessary in the present case to decide whether the trial judge's advice to the jury deprived the applicant of six hours deliberation by the jury in an attempt to reach a unanimous verdict. It would have been preferable, however, if, having offered the jury the option of not deliberating over lunch, the trial judge had inquired of the foreman whether the jury wished to take time off from their deliberations over lunch.
26. As I am of the opinion that the trial judge's directions concerning negligence

and causation were deficient, I would grant leave to appeal against the conviction, treat the appeal as instituted and heard instanter, allow the appeal and order a re-trial.

VINCENT, J.A.:

27. I agree with the disposition of this matter as proposed by Buchanan, J.A. for the reasons advanced by him in his judgment.
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[1] [2002] VSCA 158.

[2] [2003] VSCA 55 at para.[19].

[3] At [18].

[4] [2002] VSCA 158 at [46].

[5] R. v. Horvath [1972] VicRp 60; [1972] V.R. 533 at 539 per Winneke, C.J., Little and Stephen, JJ. See also R. v. Lucas [1973] VicRp 68; [1973] V.R. 693 at 701 per Newton, J. and Norris, A.J.; R. v. Stephenson [1976] VicRp 34; [1976] V.R. 376 at 382-3 per Young, C.J., Nelson and Harris, JJ.

[6] [2002] VSCA 158.

[7] At [2] per Ormiston, J.A. and at [46] per Charles, J.A.

[8] [2003] VSCA 55.

[9] R. v. Herring (1994) 74 A.Crim.R. 72. Cf. R. v. Savvas (1991) 55 A.Crim.R. 241.

[10] See R. v. Dalloway (1847) 2 Cox C.C. 273. Cf. R. v. Marsh [1997] Crim.L.R. 205.

[11] R. v. Rudebeck [1999] VSCA 155 at [66] per Ormiston, J.A.