R v Stevens[2013] QDC 102

DISTRICT COURT OF QUEENSLAND

I have been asked to rule on whether, in the circumstances of this case, the jury should be left with the alternative of dangerous driving simpliciter as an alternative to the offence of dangerous driving causing death, as has been charged in the indictment. The basis for leaving such an alternative, if there is a basis, is section 575 of the Criminal Code, which provides as follows: 

“Except as herein after stated, upon an indictment charging a person with an offence committed with circumstances of aggravation, the person may be convicted of any offence which is established by the evidence, and which is constituted by any act or omission which is an element of the offence charged, with or without any of the circumstances of aggravation charged in the indictment”.

For the section to be engaged, it is a pre-requisite that the offence with which the person was charged was an offence committed with circumstances of aggravation.  The debate before me was as to whether the offence of dangerous driving causing death, under section 328A, subsection (4), answers that description.

The expression “circumstance of aggravation” is defined in section 1 of the Criminal Code to mean as follows: 

“means any circumstance by reason whereof an offender is liable to a greater punishment than that to which the offender would be liable if the offence were committed without the existence of that circumstance”.

The offence of dangerous driving causing death brings with it a maximum period of imprisonment of 10 years in the event that subparagraphs (b) and (c) do not apply, and they do not apply here. The offence of dangerous driving simpliciter carries a maximum penalty of only three years imprisonment.

The offence of dangerous driving simpliciter is constitution by the following:  “a person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place commits a misdemeanour”. The offence of dangerous driving causing death is as follows:  “a person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place and causes the death of or grievous bodily harm to another person commits a crime and is liable on conviction on indictment …” 

It will be seen, therefore, that the very thing which constitutes the offence of dangerous driving simpliciter is an element of the offence of dangerous driving causing death or grievous bodily harm. There is a recent Court of Appeal authority to the effect that that is sufficient to engage section 575. In R v Mead (2010) QCA 370, the President with whom White JA and James J agreed said, at paragraph 22 of the reasons, as follows:

“the appellant next contends that section 575 Criminal Code required the judge to direct the jury to consider an alternative charge open on the indictment, namely, stealing. This court has held that a trial judge’s duty to ensure a fair trial according to law requires the judge to leave alternative verdicts for the jury’s consideration under section 575 where the accused person ‘may be convicted’ of an offence established by the evidence which is an element of the offence charged”.

In her reasons, the President referred to the consistency of this with the “broad interpretation” of circumstance of aggravation, which has been adopted in other cases including R v Willersdorf [2001] QCA 183.

Counsel for the defendant submits that the alternative is not open and relies upon dicta by Pincus JA in R v Harris ex. Parte Attorney General [1999] QCA 392. In that case the court was concerned with whether an indictment was duplex because it relied on a single act of dangerous operation for causing the death of one person and grievous bodily harm to another. The ratio of the decision is contained in paragraph 28 where his Honour, with whom the other members of the court agreed, said as follows: 

“In summary, there are three considerations which appear to point in the direction of holding the present indictment not to be duplex:  that on the face of the definition of the offence in the code its substance or essence is the wrong operation of a vehicle, rather than its result or the circumstances attending it;  that treating such a case as the present as involving one offence only appears to produce a result conforming with commonsense and fairness, particularly since the other view could give rise to many offences consequent upon a single collision;  that there was only one activity or transaction”.

In the course of his reasons, however, his Honour dealt with the statutory history concerning the offence of dangerous driving. He traversed the amendments which had the effect of converting the offence of dangerous driving causing death or grievous bodily harm to a crime rather than a misdemeanour. He noted the relevant explanatory note which was in the following terms:

“The aggravating circumstances of causing death or grievous bodily harm will be classified as crimes instead of misdemeanours”.

He went on to say that: 

“This suggests that the provision was presented to the legislature on the basis the purpose was as stated, rather than being one of creating a new and separate offence. However, it is in my opinion clear that subsection (4) creates an offence distinct from that defined by section 328A(1), and that subsection (4) does not merely specify aggravating circumstances. That is so because section 328A(4) creates a crime, whereas section 328A(1) creates a misdemeanour.”

It was submitted that this was authority for the proposition that the offence of dangerous driving causing death is not, to use the terms of section 575, an offence committed with circumstances of aggravation. As the prosecutor pointed out, however, the passage just quoted from Justice Pincus was not only dicta, but it was dicta in the context of his Honour dealing with a question of whether an indictment was duplex, rather than specifically with the question that we are now concerned with. As he also pointed out, there is authority, both prior to the decision in Harris and subsequently, which appears to establish that the fact that the two offences in question are separate and distinct offences does not mean that one cannot be an alternative to the other under section 575.

In that regard, reference was made to R v Willsdorf (supra), R v Rehavi, R v Chan [2000] QCA 357, and the cases referred to therein, including R v Vella [1938] StR Q 352. R v Rehavi might have been a case in which section 579 could have been engaged, but that is not the basis upon which the matter was discussed, in the reasons in the case. It should also be noted that in one of those cases, namely, R v Chan, it was Justice of Appeal Pincus himself who wrote the lead judgment. In it, there is reference to Tognolini, (1983) 1 Qd R 99, as authority for the proposition that the offence of stealing simpliciter should be left, in appropriate cases, to a jury as an alternative to the distinct offence of breaking, entering and stealing.

The lead judgment in Tognolini was written by Shepherdson J. Having set out section 575 and the definition of “circumstance of aggravation” in section 1 of the Code, his Honour went on as follows: 

“Mr Henderson submits that, in effect, section 575 has no application and that the offence of breaking, entering and stealing is not an aggravated version of stealing. In my opinion, this submission cannot be sustained, because a person found guilty under section 421 is liable to imprisonment with hard labour for 14 years, whereas under section 398 a person convicted of stealing simpliciter is liable to imprisonment with hard labour for three years.

It is beyond dispute that for the offence under s.421 to be proven, there must be firstly a breaking and entering and secondly the commission of an indictable offence – in this case the offence of stealing. In my opinion, section 575 did apply in the instant case and the jury was correctly told that if they were not satisfied in respect of the elements of breaking and entering, then if they were satisfied as to the commission of the offence of stealing they were entitled to find the accused guilty of that offence only.”

That would seem to be an embracement by Pincus JA of an approach which is broader than an approach which would be arrived at if his Honour’s comments in Harris were transposed to the operation of section 575.

It was pointed out that, in Harris, his Honour reached his conclusion in paragraph 24 of his reasons because section 328A(4) creates a crime, whereas section 328A(1) creates a misdemeanour. The same distinction, however, applies with respect to the offences of assault occasioning bodily harm under section 339, and common assault under section 335, yet, it has long been accepted that common assault is an alternative to assault occasioning bodily harm. Counsel for the defendant was unable to identify any reason, by reference to the relevant definitions or indeed as a matter of principle otherwise, as to why the distinction drawn by Justice Pincus in the context of Harris should be of importance in relation to the different context under section 575.

Accordingly, it seems to me that the law, as it presently stands in Queensland, is that which was referred to in Mead’s case as the broad interpretation of circumstances of aggravation for the purposes of section 1 and section 575, and that accordingly the offence of dangerous driving simpliciter is an alternative.

In this case, the defence says that it is not open and certainly is not asking for it to be put, but, as the cases establish, it is part of my role, in ensuring a fair trial for the defendant, to ensure that the available alternative is put. Accordingly, I will put that alternative to the jury.