SUPREME COURT OF QUEENSLAND

[1] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Chesterman J wherein all relevant facts are fully set out. 

[2] It is beyond argument that at the material time the appellant was grossly intoxicated and driving at considerable speed.  Any jury, properly instructed, would conclude that at the material time he was operating the motor vehicle dangerously. 

[3] Even if his passenger pulled on the handbrake, and the evidence to that effect is by no means convincing, then the appellant's ability to retain or regain proper control of the motor vehicle was seriously impaired, if not entirely taken away, by his drunken condition and the speed at which he was travelling.

[4] For the reasons given by Chesterman J there was no error in the summing up and the conviction must stand.

[5] As Chesterman J has conceded the appropriateness of using the word "fault" in the summing up was not the subject of submissions.  Though there may be some force in the reasoning of Chesterman J, I am not convinced, particularly in the absence of full argument, that this Court should overrule long standing decisions of the Court of Criminal Appeal such as R v Hinz [1972] Qd R 272, R v Warner [1980] Qd R 207, and R v Webb [1986] 2 Qd R 446.  Until those decisions are made the subject of a considered review by this Court, trial judges should continue to sum up in accordance with what is said in those cases.

[6] With that qualification, I agree with the reasoning of Chesterman J.

[7] The appeal should be dismissed.

[8] CHESTERMAN J: After a four day trial in the District Court at Townsville the appellant was, on 7 November 2005, convicted of the dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by an intoxicating substance.  On 9 November 2005 he was sentenced to three years’ imprisonment and disqualified from holding or obtaining a drivers licence for a period of three years.  The appellant appeals against his conviction on one ground only:  that the trial judge erred in directing the jury that if they found that the passenger had interfered with the handbrake they could still convict.  To appreciate the ground it is necessary to say something of the facts.

[9] The offence occurred on 2 May 2002 at Ingham.  Shortly before midnight a Commodore sedan driven by the appellant collided violently with a large metal street light post in Cartwright Street.  The severity of the impact is apparent from the photographic exhibits tendered at the trial.  The post and its concrete foundation were torn from the ground and displaced laterally for some yards.  The Commodore was extensively damaged.  The force of the impact split it in two.  The floor pan and the chassis were broken.  Only the roof held the two parts together. 

[10] It also appears from the photographs that Cartwright Street where the collision occurred was in a built-up area. 

[11] There was a passenger in the Commodore.  He was Daniel Kondisenko, a friend of the appellant.  2 May was Mr Kondisenko’s birthday and he and the appellant celebrated it by the copious consumption of rum.  At the time of the collision the concentration of alcohol in the appellant’s blood, expressed as a percentage, was 0.249 per cent.  He was grossly intoxicated and quite incapable of exercising any sensible control over a motor vehicle.

[12] The appellant and Kondisenko began their birthday celebration at the appellant’s house where, between them, they consumed a bottle of rum, drunk with Coca Cola.  At about 9.30 pm the appellant drove Kondisenko to a hotel where they continued drinking.  The appellant became so intoxicated that he was refused service. They left the hotel at about 11.30 pm.  The appellant drove and Kondisenko sat in the front passenger seat.  The appellant was observed driving along Herbert Street at a speed which a witness, Osborn, could not estimate but which was greater than 60 kilometres per hour.  The vehicle began to skid about 50 metres before the intersection of Herbert and Cartwright Streets.  While skidding the vehicle spun twice before becoming stationary at the intersection.  During the skid the rear wheels of the vehicle were locked and the tyres emitted smoke.  Having stopped the appellant accelerated rapidly through the intersection, turning right into Cartwright Street.  The car stopped again for about 20 seconds before driving off, again with rapid acceleration.  The driving wheels spun and squealed.  The witness who had observed these manoeuvres came upon the Commodore soon after its collision with the post.  He telephoned for assistance.

[13] It had rained lightly during the evening and the road surface was moist.

[14] The Commodore was in sound mechanical condition.

[15] The light pole was located about 20 feet from the nearest edge of the carriageway.  Skid marks leading from the edge of the carriageway to the pole extended for over 60 feet.  I have taken the dimensions from the scale plan, exhibit 3.  There were four skid marks showing that the vehicle was travelling sideways when it left the carriageway and skidded to the point of impact.

[16] The speed limit in Herbert Street was 60 kilometres per hour.  Cartwright Street at the point of collision was in a built-up area and by s 25 of the Transport Operations (Road Use Management – Road Rules) Regulations 1999 the speed limit for such a road was 50 kilometres per hour unless a speed limit sign indicated a different speed limit.  There was no evidence that there was such a sign. 

[17] The photographic evidence of the severity of the impact and the evidence of the witness Osborn clearly establish that the appellant was driving at a very high speed.  He was grossly intoxicated.  Cartwright Street was a wide straight road at the point of impact and for a considerable distance before it. 

[18] Despite these circumstances the appellant complains that he was deprived of a fair chance of acquittal because of the trial judge’s direction which is the subject of the ground of appeal.  The ground is based upon the appellant’s evidence that Kondisenko had pulled on the handbrake of the Commodore when he was driving along Cartwright Street and the car immediately began to spin, causing the appellant to lose control. 

[19]  The appellant’s evidence was:

‘I remember we got in the car, I was driving.  Daniel got in the passenger seat.  That’s pretty much it except for on Cartwright Street when Daniel put on the handbrake and we went into a spin and lost control.  That’s all the drive I remember.

How did he put the handbrake on? - … he just grabbed it …’

[20] The appellant also testified that one of the photographic exhibits of the interior of the Commodore showed the handle of the handbrake was in the ‘on’ position. 

[21]  In cross-examination he admitted that he was ‘quite intoxicated’ when he left the hotel.  He was asked and said:

‘… you remember leaving the … [h]otel and the next thing you remember straight after that is being in Cartwright Street? -  Yes.

…

But, you remember the car being in a spin? – I just remember it going into a spin.

…

… you said … that you saw Daniel Kondisenko pull the handbrake on? – I recall him pulling the handbrake. 

… at that point … what did you do? – I don’t recall that, I just remember the car going into a spin.’

[22] He had no recollection of the earlier skidding and spinning at the intersection.  He suffered a blow to the head in the collision and had ‘memory loss … of that night.’  The only thing he remembered was Mr Kondisenko applying the handbrake. 

[23] Kondisenko, who was injured, had no recollection of the collision or of the events which preceded it.  He had no idea whether he had applied the handbrake immediately before the collision, or earlier, at the intersection. 

[24] The trial judge pointed out to the jury that they could be properly sceptical of the appellant’s evidence that Kondisenko pulled on the handbrake and that that was the reason why the appellant lost control of his vehicle.  The appellant does not object to that direction but his counsel does submit that the trial judge should have directed the jury that they could only convict if they were satisfied beyond reasonable doubt that Kondisenko did not pull on the handbrake.

[25] The argument was put in several ways but it came down to the proposition that if the jury found that the passenger applied the handbrake, or if they had a reasonable doubt whether he did or not, they could not convict because in that circumstance the appellant would have been deprived of the ability to control his car, and could not be said to have operated it dangerously or to have caused Kondisenko’s injury. 

[26] The best the appellant could do by way of evidence in support of his contention was an answer given by Mr Augostis, a motor mechanic employed by the police service.  He accepted that ‘if one was driving along and applied the handbrake it would cause the back brakes, not the front brakes, to function … and … could cause a car to spin or go out of control’.  He answered that ‘it can lock the back brakes, yes.’  The acceptance was incomplete.  It does not establish that the sudden application of the handbrake when a car is in motion will deprive the driver of control or cause a car to deviate from its course.  That, however, was the tenor of the appellant’s submission.  The argument was that if the handbrake were applied by Mr Kondisenko that, necessarily, deprived the appellant of control so that he was not operating it, was not operating it dangerously, and did not cause the grievous bodily harm to Mr Kondisenko.

[27]  Section 328A of the Criminal Code provides that:

‘(1)A person who operates … a vehicle dangerously in any place commits a misdemeanour.

…

(2)If the offender –

(a)at the time of committing the offence is adversely affected by an intoxicating substance …

…

the person commits a crime.

…

(5)In this section –

…

“operates … a vehicle dangerously” means operate … a vehicle at a speed or in a way that is dangerous to the public, having regard to all the circumstances, including –

(a)the nature, condition and use of the place;  and

(b)the nature and condition of the vehicle;  and

(c)the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place;  and

(d)the concentration of alcohol in the operator’s blood …’.

[28]  Speaking of a similar section in the Crimes Act 1900 (NSW) Barwick CJ said in McBride v The Queen (1966) 115 CLR 44 at 49-50:

‘The section speaks of a speed or manner which is dangerous to the public.  This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being … who … may be upon or in the vicinity of the roadway on which the driving is taking place. … 

This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage … Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. …  [I]t is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section. 

This concept is in sharp contrast to the concept of negligence.  …  [T]he section … requires 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.’

[29]  In an earlier case, speaking of a section which provided that any person who drove a motor vehicle at a speed or in a manner dangerous to the public should be guilty of a misdemeanour, the High Court said, in The King v Coventry (1938) 59 CLR 633 at 637-8:

‘…  indifference to consequences is not an essential element … of driving … at a speed … or in a manner which is dangerous to the public.  The driver may have honestly believed that he was driving very carefully, and yet may be guilty of driving in a manner which is dangerous to the public.  The jury is to determine, not whether the accused was in fact, as a matter of psychology, indifferent or not to the public safety, but whether he has driven in a manner which was dangerous to the public.  The standard is an objective standard, “impersonal and universal, fixed in relation to the safety of other users of the highway” …  The standard is impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles.

No doubt the … section does not exclude a defence of mistake of fact on reasonable grounds or of involuntariness (for example, interference by another person with the driving of the car).  …  But, speaking generally, the expression of “driving at a speed, or in a manner … dangerous to the public” describes the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence.’

[30]  The direction given by the trial judge to which the appellant takes exception was in these terms:

‘The prosecution must prove that there was a situation which, viewed objectively, was dangerous.  The prosecution must also prove that there was fault on the part of the driver which caused that situation.  Fault involves a failure falling below the care and skill of a competent and experienced driver in relation to the manner of driving in the particular circumstances of the case.  … 

…

[J]ust because a vehicle collides with a pole does not mean that the driver was driving dangerously.  … 

You can … look at the damage to the pole and the … car and see whether that affords any evidence about how the car was being driven.  …  [T]hat … damage … may provide some evidence of the speed the vehicle was travelling before it left the roadway and collided with the pole. 

If the vehicle had been driving at a moderate speed on its correct side of the roadway, and even if the handbrake had been applied, and the vehicle travelled across the road, across the grass, and hit the pole, would it have knocked the pole out and split the car in the way … the photographs reveal.

… You might think that having regard to the damage … even if the handbrake was applied by the passenger, the vehicle had been going at a very fast and dangerous speed before the handbrake was applied.’

[31]  Later, in summarising the appellant’s case, his Honour said:

‘The defence says that the reason the car left the road and collided with the lamppost is that … Kondisenko pulled the handbrake on.  The defence says … it was not the accused’s driving that caused the grievous bodily harm … but Kondisenko himself pulling on the handbrake.  … 

The onus of proof is on the prosecution.  It is not for the accused to prove that … Kondisenko pulled the handbrake on and caused grievous bodily harm.  …  [T]he Crown must satisfy you that the dangerous driving was a substantial cause of the grievous bodily harm. …  If … you are satisfied that because of the intoxicated condition of the accused and the speed at which he was driving he was operating the motor vehicle dangerously, then the Crown has satisfied you that he was operating the motor vehicle dangerously.  If you are not satisfied that he was operating the motor vehicle dangerously … you must find him not guilty.  If you find that he was operating the motor vehicle dangerously you must … consider did that … operation cause … harm to Kondisenko.  If you are satisfied that … Kondisenko did pull the handbrake on or have doubts about whether he did or not then you have to ask …, bearing [in mind] that it happened immediately before the collision, [whether] the accused’s driving was a substantial cause of the grievous bodily harm.’

[32] Where death or grievous bodily harm has two causes, one only of which is that an accused operated a vehicle dangerously, the accused will be guilty of an offence under s 328A if his dangerous operation of the vehicle was a substantial cause of the grievous bodily harm.  This view of the law has been accepted since R v Gould [1964] 1 WLR 145 and followed in R v Amos [1965] QWN 11. 

[33] The directions are not open to criticism. They were impeccable.   It was a question of fact, for the jury to determine, whether the appellant operated the vehicle dangerously and whether, if he did, he thereby caused grievous bodily harm to Kondisenko.  The only basis for any doubt at all about an affirmative answer to the question is the appellant’s implausible testimony that the inebriated passenger mischievously applied the handbrake.  If he did, or if the jury were not satisfied that he did not, it does not follow that the appellant’s operation of the motor vehicle did not cause the collision and the injury or that the operation of the motor vehicle was not dangerous.  The jury had to determine the question taking into account the fact that Kondisenko had applied the handbrake on the vehicle, if the jury believed he did so.  There is no reason to doubt that the jury conscientiously addressed the question submitted to them by the trial judge, and there is no basis for concluding that their answer was wrong.  The trial judge’s analysis of the facts, as contained in his Honour’s directions, was entirely apposite.  The possibility that the handbrake was applied by the passenger was but one factor to consider in determining whether it had been proved, beyond reasonable doubt, that the appellant operated his vehicle dangerously thereby causing Kondisenko grievous bodily harm.

[34] There is no doubt that the appellant operated his motor vehicle whilst grossly intoxicated and unable to control it safely, or at all.  The evidence of his manner of operating the vehicle in Herbert Street, moments before the collision, establishes that.  The severity of the impact as revealed by the photographs gives rise to only one conclusion:  that the vehicle was being driven at a very high speed.  It was a question for the jury to determine whether the collision and injury to Kondisenko were caused by the appellant’s drunken decision to drive very fast and his inability to control the vehicle by reason of intoxication, or whether the sudden and unexpected application of the handbrake was the substantial cause of the appellant losing control of the vehicle and colliding with the light pole.

[35] The appellant’s submissions came down to this:  that it was an ineluctable proposition of fact that the appellant could not have been in control of the Commodore, could not have operated it dangerously, and/or could not have caused grievous bodily harm to Kondisenko, if the latter had unexpectedly applied the handbrake.  Put in other words the submission is that the evidence would not support a conviction if it were a reasonable possibility that Kondisenko pulled on the handbrake.  The corollary to the submission is that the trial judge should have instructed the jury that they could not convict the appellant unless satisfied beyond reasonable doubt that the handbrake had not been applied.

[36] The proposition cannot be accepted.  The application of the handbrake, if it occurred, would not inevitably and inexorably have caused the appellant to lose control of his vehicle.  Unless the proposition is accepted the appeal must fail.  It cannot be accepted for the reasons I have just rehearsed.  

[37]  A point which was not raised in argument deserves mention if only so that it can be argued if the occasion arises subsequently.  It will be noted that the trial judge directed the jury that they had to be satisfied that the appellant was in some way at fault before they could convict.  This direction has become conventional and it appears in the Bench Book which recommends a direction in these terms:

‘The prosecution must prove that there was a situation which, viewed objectively, was dangerous.  The prosecution must also prove that there was fault on the part of the driver which caused that situation.  Fault involves a failure – falling below the care and skill of a competent and experienced driver in relation to the manner of driving in the particular circumstances of the case.’

[38] The direction has a respectable pedigree but nevertheless it appears to me to be wrong.  Its occurrence may be explained by the fact that some of the legislation creating analogous offences designates ‘culpable driving’ or speaks of driving ‘recklessly’, both of which concepts are suggestive of blameworthy conduct.  This was the case in McBride.  Driving dangerously, as s 328A defines it, is, as the authorities show, entirely objective in its designation. 

[39] The word ‘fault’ when used in connection with human activity ordinarily connotes some kind of moral failure.  As such the word, and the concept, have no place in the criminal law.  The Criminal Code exhaustively describes what, if any, mental element is necessary for the commission of each of the offences it defines.  Immorality, of any kind, forms no part of any of those offences.  To introduce it as an element of dangerous driving is unnecessary and is likely to give rise to confusion.

[40] The principal source of the notion that fault is essential for a conviction of dangerous driving is the decision of the (English) Court of Appeal in R v Gosney [1971] 2 QB 674.  Mrs Gosney drove at a moderate speed and with her vehicle under complete control in the wrong direction on a dual carriageway.  She was convicted of driving in a manner dangerous to the public, an offence created by s 2 of the Road Traffic Act 1960 (UK).  She was not permitted to lead evidence that she had entered the carriageway by turning at a junction with which she was unfamiliar and at which there was no indication of any sort that a right hand turn was prohibited. There was nothing else to indicate to a competent and careful driver that by turning right she would enter the wrong lanes of the highway.  The evidence was ruled irrelevant and therefore inadmissible because the offence ‘was absolute’:  it was complete upon proof that an accused had driven in a dangerous manner. 

[41]  To overcome this apparent injustice the court said (at 680):

‘It is not an absolute offence.  In order to justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver … “Fault” certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving.  Nor does fault necessarily involve moral blame.  Thus there is fault if an inexperienced or a naturally poor driver, while straining every nerve to do the right thing, falls below the standard of a competent and careful driver.  Fault involves a failure, a falling below the care or skill of a competent and experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case.  A fault in that sense, even though it be slight, even though it be a momentary lapse, even though normally no danger would have arisen from it, is sufficient.’

[42] So understood ‘fault’ is failing to drive without reasonable care and is to be judged against the standard to be expected from a competent and experienced driver.  This is the language of negligence divorced from a duty not to injure others.  In my respectful opinion the concept of fault or negligence has no place in the description of the offence described by s 328A.

[43]  The court in Gosney cited as authority for its opinion the cases of R v Spurge [1961] 2 QB 205 and R v Evans [1963] 1 QB 412.  Neither of those cases, as I read them, supports the judgment in Gosney.  The tenor of both judgments is antithetical to the ratio of Gosney.  In Spurge the judgment of the Court of Criminal Appeal was given by Salmon J.  It is worth quoting at some length because it has relevance to the facts of this appeal.  Salmon J said (at 210-211):

‘If … the Crown proves that a motor-vehicle driven by an accused in fact endangers the public, that is strong evidence and, indeed, in any but the most exceptional circumstances, it is likely to be regarded by the jury as conclusive evidence that the accused was driving in a manner dangerous to the public.  If, however, a motor-car endangers the public solely by reason of some sudden overwhelming misfortune suffered by the man at the wheel for which he is in no way to blame – if, for example, he suddenly has an epileptic fit or passes into a coma, or is attacked by a swarm of bees or stunned by a blow on the head from a stone, then he is not guilty of driving in a manner dangerous to the public …  It would be otherwise if he had felt an illness coming on but had still continued to drive, for that would have been a manifestly dangerous thing to do.  It is true that in the examples given above it may be said that in a sense the man at the wheel was not driving at all, and therefore not driving dangerously.  … But it is also true that the sudden mischance suffered by the man at the wheel totally prevented him from controlling the movements of the motor-car, and that no fault of his in any way contributed to the danger.  On that ground also, it seems to this court that even if the man at the wheel could in any sense be said to be driving, he would not be guilty of driving in a manner dangerous to the public.  There does not seem … to be any real distinction between a man being suddenly deprived of all control of a motor-car by some sudden affliction of his person and being so deprived by some defect suddenly manifesting itself in the motor-car.  In both cases the motor-car is suddenly out of control of its driver through no fault of his.  Supposing a man who is driving a motor-car at a slow speed close to his near side of a wide road, keeping a proper lookout and exercising all due care and skill, he is clearly driving in a safe manner.  He turns the steering wheel to negotiate a gentle bend, but owing to a mechanical defect in the steering mechanism of which he has and could have no knowledge, the steering suddenly fails completely and the wheel turns helplessly in his hands so that the motor-car careers across the road into an oncoming vehicle.  In these circumstances clearly the motor-car endangers the safety of the member of the public driving the oncoming vehicle.  Nevertheless, it could not truly be said that this danger was created by the manner of the driving of the motor-car which had gone out of control.  There would be nothing in the driving which created the danger.’

[44] One cannot but agree with this judgment but it does not follow from it, in my respectful opinion, that exoneration of the accused depends upon the absence of fault or, ‘negligence’.  The driver in each of the examples given would not be operating the vehicle dangerously or at all.  Salmon J made that very point.  The only reference to ‘fault’ was in the context of a supposition that a driver was deprived of the control of his car by an unforseen and overwhelming event.  In such a circumstance there would be no offence committed against s 328A not because the driver was not at ‘fault’ but because the driver would not have done an act necessary for a conviction under the section.  He would not have operated the vehicle at all, or not have done that which constituted operating it dangerously.

[45] It should also be pointed out that in each of the examples given ss 23, 24 or 25 of the Criminal Code would have afforded a defence.  Mrs Gosney could, in Queensland, have safely relied upon s 24.  She must have reasonably believed she was driving on the correct side of the highway.  In the case of the driver who is overcome without warning by epilepsy or a swarm of stinging insects or stunned by a stone, his actions in operating a motor vehicle would have occurred independently of the exercise of his will.  Section 25 may also afford a defence in some circumstances.  It is not necessary in this State to have regard to a notion of fault to avoid injustice of the kind to which Mrs Gosney may have been subjected.

[46]  The judgment of the Court of Criminal Appeal in Evans was given by Atkinson J who said (at 418):

‘It is quite clear from the reported cases that if a driver in fact adopts a manner of driving which the jury think was dangerous to other road users in all the circumstances, then on the issue of guilt it matters not whether he was deliberately reckless, careless, momentarily inattentive or even doing his incompetent best.’

[47]  This passage was said by the court in Gosney (at 679) to support the view that fault is an element in the offence because of:

‘… its reference to “… incompetent best”.  “Incompetent” involves fault – falling below the required standard of skill.’

[48] The judgment in Evans says the very opposite.  The passage quoted from Evans follows on from a remark that the summing up had been too favourable to the accused because the trial judge had said that the offence would be proved ‘even although the dangerous driving was caused by … the slightest negligence.’

[49] Gosney was accepted uncritically as correctly stating the law by the Court of Criminal Appeal in R v Hinz [1972] Qd R 272 (at 278) and in R v Webb [1986] 2 Qd R 446 (at 448).  In my respectful opinion those cases should be disapproved, and Gosney should not be accepted as stating the law in Queensland.  The requirement of fault finds no support in the judgments of McBride or Coventry.  Those judgments are opposed to such a notion.  Barwick CJ emphasised that dangerous driving is in ‘sharp contrast to the concept of negligence’, which is what fault is, as described in Gosney.

[50] When summing up in a case where the charge is brought under s 328A no reference should be made to fault but, of course, attention must be given to any circumstance which might indicate that the accused was not in fact operating the vehicle, or not operating it dangerously, or that the operation of s 23 and/or s 24 and/or s 25 is called into question.

[51] In my opinion the appeal should be dismissed.

[52] MULLINS J: I agree that the appeal should be dismissed for the reasons given by Chesterman J in respect of the grounds that were the subject of the appeal.

[53] I do not wish to make any observations in respect of that part of the reasons of Chesterman J directed at the notion of fault, other than to agree with Williams JA on the continuing application of decisions such as R v Webb [1968] 2 Qd R 446, unless and until those decisions are overruled.