District Court New South Wales Medium Neutral Citation: R v Wylie [2020] NSWDC 550 Hearing dates: 30 – 31 March, 1, 3 April 2020 Decision date: 06 April 2020 Jurisdiction: Criminal Before: Beckett DCJ Decision: See paragraph 72 Catchwords: CRIMINAL LAW – aggravated dangerous driving occasioning death - interpretation of ss 52A(5)(c), (d) 52A(6) and 52A(7) of the Crimes Act 1900 – circumstance of aggravation – speed – "the impact of the vehicle with an object" – "is occasioned through" – "object" Legislation Cited: Crimes (Amendment) Bill 1955 (NSW) Crimes (Dangerous Driving Offences) Amendment Bill 1994 (NSW) Crimes Act 1900 (NSW) s 52A Criminal Procedure Act 1986 (NSW), ss 130A, 139(3)(g) Evidence Act 1995 (NSW), s 192A Motor Traffic Act 1909 (NSW) Road Traffic Act 1974 (WA), s 59 Cases Cited: A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244 Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 Attorney-General v Bindoff (1953) 53 SR (NSW) 489 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 Harlor v The Queen (1956) 95 CLR 170 Jiminez v The Queen (1992) 173 CLR 572 KH v R [2014] NSWCCA 294 King v Coventry (1938) 59 CLR 633 Lacey v Attorney General (Qld) (2011) 242 CLR 573 Lee v New South Wales Crime Commission (2013) 251 CLR 196 Magorian v Lodge [2011] WASC 147 McBride v The Queen (1966) 115 CLR 44 Potter v Minahan (1908) 7 CLR 277 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Adamson [2005] NSWCCA 7 R v Hain (1966) 85 WN (Pt 1) 7 R v Piper [2005] NSWCCA 134 R v TR (2004) 180 FLR 424 Regina v Buttsworth [1983] 1 NSWLR 653 SZTAL v Minister for Immigration and Border Protection (2017) 91 ALRJ 936 Thiess v Collector of Customs (2014) 250 CLR 644 Williams v R [2012] NSWCCA 286 Category: Procedural and other rulings Parties: Crown Jason James Wylie Representation: Counsel: Ms K Marinos (for the Crown) Mr R Rajalingam (for the accused) Solicitors: Solicitor for the Director of Public Prosecutions Legal Aid File Number(s): 2018/207714 Publication restriction: Nil Judgment 1. The accused, Jason James Wylie, appeared before the Parramatta District Court for trial on 30 March 2020. By agreement of the parties the trial is to be heard by judge alone. The accused was arraigned on an indictment containing two counts as follows: 1. That he, on 5 July 2018 at Strathfield in the State of New South Wales did drive a vehicle, namely, a Holden Commodore sedan, New South Wales registration number JJW XXX when it was involved in an impact occasioning the death of Harold Chatfield and at the time of the impact the said Jason James Wylie was driving the vehicle at a speed dangerous to another person or persons in circumstances of aggravation, namely driving the vehicle concerned on a road at a speed that exceeded by more than 45 kilometres per hour the speed limit applicable to that length of road. Pursuant to s 52A(2) Crimes Act 1900 1. And in the alternative to count 1, that he, on he, on 5 July 2018 at Strathfield in the State of New South Wales, did drive a vehicle, namely, a Holden Commodore sedan New South Wales registration number JJW XXX, when it was involved in an impact occasioning the death of Harold Chatfield and at the time of the impact the said Jason James Wylie was driving the vehicle in a manner dangerous to another person or persons. Pursuant to s 52A(1)(c) Crimes Act 1900 1. At arraignment the accused pleaded not guilty to count 1 and guilty to count 2. The Crown does not accept the plea of guilty to the second count in full satisfaction of the indictment. 2. After the arraignment the accused moved on a Notice of Motion filed on 30 March 2020. The Motion sought the following: 1. That the Court make a pre-trial ruling pursuant to s 192A of the Evidence Act 1995 (NSW) in relation to the operation of section 52A(2) of the Crimes Act and related subsections; and 2. The Court rule that the sections/ subsections be interpreted in accordance with the submissions advanced on behalf of the accused. 1. The affidavit of the accused's solicitor, Peter Brock affirmed 30 March 2020, included the submission that the proper construction of the aggravated offence provision required the speed of the accused's vehicle to be assessed at "the time of the impact" i.e potentially at three points of impact arising from the facts, being either with the median strip, the kerb on the other side of the road or the deceased". Further the accused submitted "that at each of these points in time the speed of the accused's vehicle was not more than 45 kilometres per hour over the speed limit applicable to that section of the road at the relevant time and date". 2. Tendered on the Motion by the Crown was a bundle of agreed documents that comprised the Crown Case Statement, statements of various eye witnesses, the reports of various police and expert witnesses concerning the events together with the various pieces of footage capturing the relevant event. Section 192A Evidence Act 1999 1. Section 192A Evidence Act 1995 relevantly provides: 192A Advance rulings and findings Where a question arises in any proceedings, being a question about: … (b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced; … the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings. 1. It was submitted by the Crown that the orders sought for a "pre-trial ruling" do not arise as "pre-trial" matters. Any rulings and findings are to be made "where a question arises in the proceedings". Determination as to the appropriateness of the pre-trial ruling 1. The accused sought a pre-trial ruling as to the operation of s 52A of the Crimes Act 1900 (NSW) ("the Act") and the Crown opposed the ruling on the basis that it "was not clear what evidence it was that the ruling was sought in respect of". In oral submissions it appeared to be conceded by the Crown that the determination of the issue as to at what point the time of impact was to be assessed, would be relevant to advice given as to prospects of conviction and potential plea as concerns count 1, and how the trial was to proceed, assuming it did. 2. Section 192A of the Evidence Act confers a broad discretion in proceedings to give advance rulings or to make advance findings where the court "considers it to be appropriate to do so". 3. Whether this application is to be considered an application for a pre-trial ruling in respect of the evidence, or whether it should be characterised as a preliminary determination of certain questions of law anticipated to arise from the evidence, such applications have been recognised as allowable: R v Adamson [2005] NSWCCA 7 and R v Piper [2005] NSWCCA 134. I noted during argument that a similar power exists in respect of rulings on questions on law that might arise, pursuant to s 139(3)(g) of the Criminal Procedure Act 1986, albeit it is envisaged such a ruling would be sought during pre-trial hearing and not, as is the case here, after arraignment (see also s 130A of that Act). 4. As was discussed with the parties, preliminary rulings can be revisited, particularly if new issues arise during the course of proceedings as was recognised in KH v R [2014] NSWCCA 294 at [24]; and in A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244, the latter concerning the application for a preliminary ruling as to the statutory construction of the term 'mutilates' for the purposes of s 45 of the Crimes Act 1900. 5. I consider that it is appropriate to give a ruling in relation to the operation of s52A(5) as concerns the circumstances of aggravation set out in ss (7) of the Act. The desirability of that course at this stage of the trial is to assist in narrowing the factual issues to be determined by expert evidence to be called at trial, to assist in the Crown's consideration as to the prospects of obtaining a conviction and to counsel for the accused in offering sensible advice as to the appropriate plea: R v TR (2004) 180 FLR 424. The offence charged 1. The offences charged are both contrary to section 52A of the Act which is (relevantly) in the following terms: (1) Dangerous driving occasioning death A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle— (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. (2) Aggravated dangerous driving occasioning death A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subjection is liable to imprisonment for 14 years. (3) Dangerous driving occasioning grievous bodily harm… (4) Aggravated dangerous driving occasioning grievous bodily harm… (5) When vehicle is involved in impact – generally For the purposes of this section, the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following— (a) the vehicle overturning or leaving a road while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (b) an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (c) an impact between the person and the vehicle, (d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact, (e) an impact with anything on, or attached to, the vehicle, (f) an impact with anything that is in motion through falling from the vehicle, (g) the person falling from the vehicle, or being thrown or ejected from the vehicle, while being conveyed in or on the vehicle (whether as a passenger or otherwise), (h) an impact between any object (including the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vehicle, while the person is being conveyed in or on the vehicle (whether as a passenger or otherwise). (6) When vehicle is involved in causing other impacts For the purposes of this section, a vehicle is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if – (a) The death or harm is occasioned through the vehicle causing an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave a road, and (b) The prosecution proves that the vehicle caused the impact. (7) Circumstances of aggravation In this section, circumstances of aggravation means any circumstances at the time of the impact occasioning death or grievous bodily harm in which (a) the prescribed concentration of alcohol was present in the accused's breath or blood, or (b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or (c) the accused was driving the vehicle to escape pursuit by a police officer, or (d) the accused's ability to drive was very substantially impaired by the fact the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination. (8) Defences… (9) Definitions In this section – … Object includes an animal, building, structure, earthwork, embankment, gutter, stormwater channel, drain, bridge, culvert, median strip, post or tree. Summary of the evidence concerning count 1 1. The events alleged to comprise the offending conduct, in particular the conduct concerning the element of aggravation in respect of count 1, took place over a period time measured in seconds. At the time, the accused was driving in the westbound lanes of the Hume Highway, Strathfield, NSW shortly after 10:30 am on Thursday 5 July 2018. The accused was the sole occupant of a dark colour 2014 model Holden Commodore. The Hume Highway at the relevant point comprised of a 3 lane carriageway in each direction and a speed limit of 60 kilometres per hour ("km/hr"). 2. For the purpose of this application, the following matters appear agreed: eye witnesses described two cars travelling at speed in a westerly direction along the Highway. Footage was captured of the accused's car at a distance from CCTV footage obtained from businesses on the highway, namely 7-Eleven, McDonalds and KFC over about 12 seconds, on the Crown case, prior to the accident. Those images together appear to show two cars travelling at speed moving between the traffic and between lanes in a westerly direction. This initial period of driving is relied upon by the Crown to establish the drive manner dangerous offence based upon the manoeuvring and rapid acceleration, including reaching a speed estimated to be about 109km/hr in the 60 km/hr zone. 3. Footage is also replied upon from a bus travelling in the same westerly direction in the inside lane, closest to the median strip. The footage from the bus was captured from four camera angles from within the bus (namely from the rear, the internal view, the side door and the front of the bus). That footage indicates that a silver coloured car came from behind the bus initially at the time it was stationary at some traffic lights and passed the bus on its left side (in the middle lane) at speed, followed shortly thereafter by the accused in his darker coloured vehicle. The camera at the front of the bus indicated that the accused's vehicle followed the silver vehicle in the middle lane and travelled passed the bus at speed whereupon, at the front side of the bus, it appeared to "lose traction" (as described by the accused) or "fishtailed" (as described by the Crown) by veering initially to the left, then, on the Crown case, having "lost control", overcorrected to the right (as described by the Crown), cut in front of the bus by moving diagonally across the inside westbound lane, or "spinning" around the front of the bus (as described by the accused) before hitting the median strip in the middle of the road directly to the right front of the bus. At the point the vehicle struck the median strip it became momentarily air borne and narrowly missed colliding with a dark coloured car travelling in the opposite direction in the inner lane. Footage at that point was also captured from the opposite direction from a Dashcam recorder installed in the same dark coloured car just described driving in the easterly direction. It captured the accused's car airborne after having hit the median strip and travelling diagonally across the three lanes of east bound traffic in a clockwise arc towards the northern kerb. 4. An examination of the crime scene and damage to the accused's car indicated that the car had collided with the pavement kerb on the northern side of the road before striking a pedestrian, Mr Harold Chatfield, who has been walking in a westerly direction. The accused's vehicle came to a rest against some trees on the footpath facing an easterly direction, having pivoted 180 degrees. Mr Chatfield was shortly after declared deceased by a doctor who attended at the scene. 5. A comprehensive examination of the scene and damage to the accused's vehicle was undertaken by the police experts, Senior Constable Houghton ("Houghton") and Crime Scene Officer Simon Parker ("Parker"). The accused obtained his own expert and relies on the opinion of Grant Johnston ("Johnston"), Consultant Engineer. 6. Based solely (at this point) upon the time clock on the bus footage tendered on the Motion, the period of time from when the accused's car was first captured travelling from the rear side of the bus, until it is seen moving at an angle in the front of the bus is approximately 2 seconds, with the car hitting the median strip in front of the bus in the third second before travelling across the 3 lanes of east bound traffic at 4 seconds. The Crown case is that this period is very roughly consistent with the time recording captured by the black box in the accused's vehicle's (Crash Data Retrieval recording) taken at the time of the discharge of air bags. On the Crown case, this device records various kinds of data (including the degree to which the engine throttle assembly was open and the depression acceleration pedal depressed) and captures the 5 seconds prior to impact (being the timing of the release of the air bags to the front driver's side of the vehicle and the side passenger side). The accused's expert differs as to the precise point of time the recordings commenced, and therefore, takes a different view as to what is to be made of the data captured over the preceding 5 second period. On the Crown case, the period recorded by the CDR captures a contemporaneous period directly before the impact and resulting death of Mr Chatfield. 7. There are differences between various calculations by the three experts as to time and speed which are clearly matters for the trial. Whilst the calculations differ, it is agreed that the time the accused's car passed the bus in the middle westbound lane, the accused's vehicle was traveling at an average speed of 115 km/hr i.e over 45km/hr above the 60 km speed limit. As stated, the Crown case is that at the point the accused's car was (at least) doing this speed, the accused "lost control" of his vehicle. 8. From the point of loss of control ( or traction), the view of the experts as to the speed of the accused's vehicle differs markedly. At the time of impact with the median strip, Parker assesses the accused's vehicle was travelling at about 105.5 km/hr (rounded down to a minimum of 105 km/hr) whilst Johnston estimated a speed of between 89 to 94 km/hr. Johnston estimates speed at the time the vehicle struck the northerly kerb as around 70 km/hr and the speed when the car came to a stop against the trees on the northern footpath as around 49 km/hr. Relevant to the element of aggravation (of 45 km/hr over the allowable speed limit) the Crown expert does not provide an assessment of speed at the points of impact of the accused's car with the kerb or where the accused's vehicle ultimately came to a stop, as being over 105km/hour. The Crown case as to the time of the impact and as to the particulars of aggravation 1. The Crown relies on the following elements of the offence charged are as follows: i. that the accused was the driver of the vehicle; ii. that the vehicle was involved in an impact – namely between the accused's vehicle and the deceased; iii. the impact caused the death of the deceased; iv. at the time of the impact, that the accused was driving at a speed dangerous to another person/s; and v. at the time of the impact, the accused was driving in a circumstance of aggravation, namely that the accused was driving the vehicle on a road at a speed that exceeded by more than 45 km/h the applicable speed limit to that length of road. 1. The Crown asserts that the accused's driving was very plainly dangerous to other road users and pedestrians. Because of his dangerous speed, in these circumstances of aggravation (>45km/h over 60km speed limit) and harsh manoeuvring in the context of engaging in competitive driving, the accused lost control of his vehicle, crossed onto the wrong side of the road and mounted the footpath in the moments before his vehicle struck Mr Chatfield. 2. The Crown case is that the aggravated offence is made out, relevantly, as to elements (ii) and (v) above, based upon the evidence that the speed at the time the accused's vehicle "fishtailed" (at the lowest estimate, 115 km/hr) and that this was at a time that was contemporaneous with the "time of the impact," when the accused's vehicle struck the pedestrian. The Crown submits it may rely on a preceding period of time to the precise point of impact based upon a line of authority that assessed a preceding period of dangerous driving "so nearly contemporaneous with the impact as to satisfy the 'time of impact' requirement": per Jiminez v The Queen (1992) 173 CLR 572 ("Jiminez") at 578. On this basis the Crown position is that the evidence allows for the aggravating factor of speed to be made out in respect of s 52A(7) based upon the period of time commencing from the time just prior to the accused's loss of control of his vehicle and ending on impact with Mr Chatfield. 3. The Crown does not assert that the death of Mr Chatfield was occasioned through the impact with an object in, on or near to the pedestrian at the time of the impact as the circumstance in which a vehicle was involved in an impact that occasioned death pursuant to s 52A(5). In other words the Crown does not say that the death was occasioned through the accused's car striking the median strip or the northern kerb. As set out above, the time of impact relied upon by the Crown, being the impact they assert that occasioned the death, was the accused's car striking Mr Chatfield. The accused's application regarding count 1 1. The accused's case is that s 52A(5) specifically prescribes when a vehicle is involved "in an impact" and that two of the circumstances there contained apply to the facts of this case, namely (c) the time of the impact between the person and the vehicle; or (d) the time of the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact. The accused relies upon the definition of "object" as including an embankment, gutter or median strip. The accused argues that in the circumstances of this case, the Crown is limited to one of the three points of impact provided within subsection (5) as to when the vehicle is "involved in an impact occasioning death", being either the precise time the car hit the median strip, the time it hit the kerb, or when the car struck Mr Chatfield (and not any preceding point prior to that exact time). Regardless of the differences between the experts as to speed, the defence case will ultimately be that the evidence could not satisfy the trier of fact that the speed of the accused's vehicle was 45 km/hour over the speed limit at any of these three points in time. 2. The accused seeks a ruling as to whether the Crown's reliance on an extended period of impact (to allow for the 4-5 second "contemporaneous period" leading up to the point of impact) is open in light of the wording of s52A Ss 1, 2, 5 and 7. The accused argues in effect that the recognition by the Court in Jiminez that a "preceding period" of dangerous driving prior to the impact might be considered as the "time of the impact" where it was so nearly contemporaneous with the impact as to satisfy the element, did not survive the amendment of Ss (5) in the context of the circumstances of aggravation as set out in Ss (7)(b). 3. The accused argues that the enactment of S52A(5) of the Act, indicate the Parliament had turned its mind to the issue of the various circumstances of impact, none of which included an extended or preceding period of impact related to the circumstances of aggravation. They argue that the plain reading of the sub-section called for the application of Ss (5)(d) rather than 5(c), in the circumstances where the accused's vehicle struck two "objects" before it hit Mr Chatfield. 4. The accused argues that the "principle of legality" ought apply to the interaction of ss (5) and (7) in order to read down the time of impact occasioning death to the precise time the accused's vehicle impacted with the median strip, the kerb or the pedestrian, and not allow for an extended period of contemporaneous driving as the court did in Jiminez. 5. In response to this argument the Crown says that it does not assert that the death of Mr Chatfield was occasioned through the impact of the accused's vehicle with the kerb and/or gutter per s 52A(5)(d), rather they say the death was plainly occasioned through the impact between the accused's vehicle with the pedestrian per 5(c). The Crown assert that s 25A(2)(d) is a provision enacted to overcome a different situation, namely where an accused person is killed not by an accused's vehicle but by the impact of the accused's car with another vehicle or object. Questions for consideration 1. The questions for consideration therefore appear to be as follows: 1. Is the Crown required to rely upon the impact between the vehicle and an object as the means by which death is occasioned pursuant to s 52A(5)(d) just because the vehicle driven by the accused impacted with "objects" prior to it impacting with the deceased; and 2. If not, does the reasoning of the Court in Jiminez, as to a contemporaneous period of driving preceding the impact, survive the amended version of s 52A and apply to determining the time of impact in respect of the circumstances of aggravation? An historical analysis of the development of s 52A of the Act and previous judicial decisions 1. It appears to me that the ruling sought by this Motion turns upon the interpretation of two phrases. In order to understand the use of the phrases contained within s 52A it is important to understand the development of the law concerning dangerous or culpable driving in the context of both the development and scope of the terms "at the time of the impact" and "the impact of the vehicle with another vehicle or an object in, or near which the person is at the time of the impact". I have considered the development of statute chronologically together with the analysis in the common law. 2. The insertion of s 52A into the Crimes Act 1900 in 1951 created a new offence dealing with a category of blameworthy driving where it resulted in death or very serious injury, considered to be a lesser category of offence to murder or manslaughter. Prior to that time the concept of driving dangerously was incorporated within the Motor Traffic Act 1909 which adopted the language of the UK Motor Car Act 1903. As was recognised by Owen J in Attorney-General v Bindoff (1953) 53 SR (NSW) 489 at 490, the purpose for the introduction of the provision was to overcome the reluctance of juries to convict drivers for murder, manslaughter or grievous bodily harm and to introduce a law "in the hope and expectation that some check might thereby be placed upon dangerous driving". 3. The provision introduced by the 1951 amendment to the Act used the language of "where the death of any person is occasioned through the impact with a motor vehicle". It did not refer to the secondary impacts which could be causative of death. 4. In 1955, the provision was amended by the insertion of the words after "motor vehicle" of "or through the impact of a motor vehicle with any vehicle or other object in, on or near which the person was at the time of the impact and in either case the motor vehicle was at the time of impact". The amendment defined "object" to include "animal, building or structure". The Second Reading of the Crimes (Amendment) Bill 1955 in the Legislative Assembly on 23 March 1955, Mr Sheahan, Attorney General said (at 3227): When section 52A was inserted the Government proceeded cautiously. It has now been found that the charge is not applicable in those cases where there has been not direct impact by the vehicle driven by the accused upon the person injured or killed ... many cases arise where no direct contact by the accused's vehicle upon someone occurs, but someone is, nevertheless killed by impact upon some other vehicle or object, that impact being caused by the initial impact of the accused's car with that vehicle or object… 1. In 1956 the High Court of Australia in Harlor v The Queen (1956) 95 CLR 170 a driver of a double decker bus across the Iron Cove Bridge in Sydney was indicted for manslaughter but convicted under the then s52A(1) in respect of the death of a passenger travelling on the upper deck of the bus when the bus hit one of the piers of the bridge. The question for decision by the High Court was whether the legislation applied to the death of a person due to the impact with an object (namely the pier) with a passenger. The Court considered the intention of the amendment concerning the inclusion of impact with objects above, stating at 172 (emphasis added): "The accepted view of the words 'where the death of any person is occasioned through impact with a motor vehicle' was that they were not satisfied except by an impact by the motor vehicle with the person killed. He might be a pedestrian or a cyclist or an equestrian or his body might in some other way be exposed to the impact of the vehicle; but there must be impact with him bodily. The general intention of these words is plain enough. They are intended to apply to a case in which the motor vehicle driven by the person accused of the offence strikes another vehicle in, on or near which the person killed was at that time, and to a case in which it strikes some other object in, on or near which the person then was." 1. The Court held (at 173) that the iteration of the legislation at that time did not extend to persons who were the subject of an impact who were inside the car, but was directed to those outside the vehicle being driven by the accused person: "[I]f the offender's car runs into another car the death must be the consequence of the man killed being in that other car or on it or near it, as he would be if he was about to get into it or was attending to a tyre or the tail- light. If the offender's car struck a post or a stanchion and caused it to fall upon a bystander that would be within the words. But the present case seems to be outside the conception." 1. In 1966, McBride v The Queen (1966) 115 CLR 44 the High Court considered the prosecution arising from a collision of a truck driven by the accused that impacted with a woman and child as they crossed a pedestrian crossing. He had been driving on the correct side of the road at a relatively low speed behind a motor car. As the motor car ahead of him approached a pedestrian crossing it stopped short of the crossing and the accused swerved out from behind the truck and struck the pedestrians on the crossing having seen them too late, distracted by a vehicle coming in the opposite direction. In considering the facts of the matter Barwick CJ noted (at 50 – 51) that the contemporaneity of the impact from which death flows with the speed or manner of driving were both matters for the jury. 2. In R v Hain (1966) 85 WN (Pt 1) 7, the NSW Court of Criminal Appeal considered the s 52A offence of driving in a manner dangerous to the public in the context of a bus driver striking a stationary taxi whilst travelling across the Sydney Harbour Bridge. In the process of the impact between the bus and the taxi, the taxi driver and an employee of the Department of Main Roads were killed. The impact occurred as a result of the momentary inattention of the driver whilst he looked at his reflector mirrors before noting the vehicle in front of him had stopped, whereupon he attempted evasive action by swerving before colliding with the taxi. Both offences charged involved the allegation that at the time of the impact with the other vehicle "the motor vehicle was at the time of impact being driven by a person…in a manner which is dangerous to the public." The Court held that despite the accused having taken evasive action at the time of the impact there were sufficient facts for the jury to come to the conclusion that the impact and the dangerous driving were contemporaneous. The Court comprising Wallace P, Asprey JA and Moffitt AJA, made reference to McBride v the Queen, and held at 11: "it is not enough that an impact takes place between the vehicle driven by the accused and another vehicle at some point of time after the vehicle has been driven in a manner which is dangerous to the public – the impact must occur whilst the vehicle is being driven in a manner which is dangerous to the public; but the interval of time between the driving which is in breach of the section and the impact may in all the factual circumstances of the case be so short that the offending driving can be regarded as proceeding to the moment of impact." 1. The court held (at 11) that in respect of the facts of that case there were "sufficient facts for the jury to find contemporaneity between the two necessary ingredients in the offence" namely the dangerous driving and the impact which were matters for the jury to determine. 2. In 1974, the Crimes (Amendment) Act 1974 amended the provision to overcome the limitation of the provision experienced in Harlor's case, retaining the reference to the death being "occasioned through" the impact of the motor vehicle or "object in, on or near which the person was at the time of the impact". The definition of "object" was expanded to include, inter alia, "gutter…median strip, post and tree." There was no aggravating form of the offence at that time. 3. In 1983, Regina v Buttsworth [1983] 1 NSWLR 653 the Court of Criminal Appeal considered the situation that arose in 1980 where the accused, driving a semi-trailer on a highway, crossed the centre line of the highway and struck vehicle 1, killing the passenger of vehicle 1. Vehicle 1 lost control of his vehicle as a result of the impact and struck vehicle 2 killing a passenger of that second vehicle. The accused was charged with multiple offences including manslaughter and in the alternative culpable drive pursuant to s 52A in respect of the deaths to persons from each of the two vehicles. In respect of the semi-trailer's striking of vehicle 1 the Court held (per O'Brien CJ of Cr D with whom Street CJ and Nagle CJ at CL agreed) at 689E: "If the impact of the offender's vehicle with the other vehicle caused that vehicle to become out of control and collide with a nearby post and in that collision a person in the other vehicle is killed that death may be held to be 'occasioned through the impact' of the offender's vehicle with the other vehicle and that the deceased was 'in' the other vehicle 'at the time of the impact'" 1. In respect of the death occasioned in vehicle 2 the Court held the provision extended to the second vehicle, at 690D: …I do not think that any different considerations apply if the other vehicle was put out of control and collided with a third vehicle nearby, whether stationary or moving, whereby a person in that vehicle was killed. It could be held that the death was 'occasioned through' the impact and the deceased was "near" the other vehicle at the time of impact'. These questions are questions of fact for the jury…including evidence of a degree of proximity permitting a finding of nearness." 1. In 1992 the plurality in the High Court of Australia in Jiminez held that in the circumstances where death resulted after the accused had fallen asleep, and woken just before impact during which he unsuccessfully tried to regain the control of the vehicle (even if a motor vehicle was not being driven dangerously at the time of the impact), a preceding period of dangerous driving may be considered "so nearly contemporaneous with the impact" as to satisfy the "time of impact" requirement of s 52A(1)(a). The Court held (at 578): "The offence of culpable driving as it applies in the present case requires a motor vehicle to have been driven in a manner dangerous to the public at the time of the impact which occasioned death. Even if the motor vehicle was not being driven dangerously at the precise moment of impact, a preceding period of driving in a dangerous manner may be so nearly contemporaneous with the impact as to satisfy the element of the offence. Contemporaneity is a question for the jury. …where the question is whether a driver who falls asleep at the wheel is guilty of driving in a manner dangerous to the public, the relevant period of driving is that which immediately precedes his falling asleep. Not only must the period be sufficiently contemporaneous with the time of impact to satisfy the requirement of s 52A but the driving during that period must be, in a practical sense, the cause of the impact and the death." 1. McHugh J agreeing that the appeal be allowed, held that (at 586 - 587): "The policy of s 52A was to punish drivers for their actual behaviour 'at the time of the impact' and that it did not require any given state of mind as an essential ingredient of the offence" and that consequently a person continues to drive for the purpose of the section even though that person has lost control of the vehicle because his mind has wandered to a subject remote from driving or has lost control because of excessive speed or some external matter concerned with the control or management of the vehicle. The policy of the section, therefore, gives no support for drawing any distinction between the driver who is inattentive or who, though attentive, is unable to control the vehicle and the driver who is unable to control the vehicle because he or she has 'dozed off'." 1. At 587 – 588, McHugh J said in respect of the failure by the trial judge to direct the jury in respect of the vital issue of the availability of contemporaneity when determining "the time of the impact" : …[T]he applicant could only be convicted of culpable driving…if he drove in a manner dangerous to the public, prior to his falling asleep, and if that manner of driving was, in a practical sense, contemporaneous with the impact between his vehicle and the tree." 1. In 1993, the provision was amended to allow for the circumstance in which the injury or death was occasioned to a person conveyed in a motor vehicle, or from the impact with anything attached to the vehicle or something falling from the vehicle. 2. In October 1994, the Crimes (Dangerous Driving Offences) Amendment Bill was introduced to NSW Parliament. Reference was made by the Hon J.P Hannaford AG to the various amendments since the introduction of culpable driving into the Crimes Act in 1951. Those amendments provided for the current shape of the legislation today, with a list of circumstances for determining circumstances of impact at ss (5) and (6), and the circumstances of aggravation at Ss 7. The amendments of 1994 were aimed to give effect to the comments made by the Court of Criminal Appeal concerning the legislation, including the perception that the legislation to date had not acted as a deterrent to dangerous driving which included speeding and which called for more severe penalties (27/10/1994 at p 4793). These changes followed a review of the NSW Road Safety Legislation by the Staysafe Committee on Road Safety (see: "A Decade of the Staysafe Committee 1992 – 2002 per Staysafe 25 Death and Injury on NSW roads; An examination of the provisions of the Crimes Act 1900 regarding dangerous driving (March 1994)"). "Culpable driving" was changed to "dangerous driving", penalties were increased and the legislation directed to overcoming restrictions where the vehicle of the accused person caused other vehicles to impact and cause death or injury. Notably the Attorney General said (at p 4793): The legislation is particularly restrictive in its requirement that the vehicle of the accused driver be actually involved in the impact which occasions death or grievous bodily harm. Thus if a person drives in a dangerous manner and causes other vehicles to impact, and death of grievous bodily harm ensues, that driver cannot, at present, be charged under section 52A…. There are, however, occasions where a driver's vehicle causes an impact between other vehicles or between another vehicle and an object or person but his or her vehicle is not involved in the impact…the bill therefore removes the requirement that the driver's car be involved in the impact." 1. The Attorney General went on the comment that the addition of the word "include" in the third line of subsection (5) means that the "door is left open for any future types of impact that have not been specifically mentioned in the bill". 2. On 24 November 1994, in the Legislative Council, the Hon Elizabeth Kirby said the following about what became s 52A(5) and (6) of the Act: "The new section goes on to list a set of circumstances from (a) to (f). My proposed amendment would not limit the set of circumstances arising from the impact of a vehicle that resulted in death or grievous bodily harm. Although it may be only a one-in-a-million chance, bizarre things can happen. It would be unfortunate if dangerous driving in any context were unable to be prosecuted. The amendment is simple. The word substituted would be 'include' thereby not limiting the scenarios to be covered by the legislation. I refer to schedule 1, new section 52A(6), which deals with vehicles involved in causing other impacts. It is designed, in the words of the Attorney General "to remove the requirements that the driver's car be involved in the impact that caused death or grievous bodily harm. In other words, it is designed to cover the situation of one driver causing other cars to smash when one of the cars is the car that directly hit and damaged an individual." 1. The interpretation to be given to ss (5) has not been the subject of particular comment by any intermediary appellate court that I am aware of. It appears that Western Australia has relevantly identical legislation to the S52A NSW provision. In Magorian v Lodge [2011] WASC 147 the Supreme Court considered the relevantly identical provision, s 59 of the Road Traffic Act 1974, commenting that the provision was designed to "extend" the notion of an incident "occasioning" or "causing" an incident of death or grievous bodily harm, "in other words, an incident is any occurrence which is causally linked to the death or harm suffered" (at [8]). The interaction of the various provisions within s 52A 1. The aggravated form of dangerous driving occasioning death comprising s 52A(2) calls for the interactions of the following provisions within s 52A in the circumstances of this case: (i) S 52A(2) relevantly stipulates that a person is guilty of the aggravated offence if the driver commits the offence of (ii) dangerous driving occasioning death in circumstances of aggravation. (iii) s 52A(1) relevantly provides that a person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact causing death of another person and the driver was at the time of impact, driving the vehicle at a speed dangerous to another person in circumstances of aggravation. (iv) S52A (7) provides that circumstances of aggravation mean relevantly any circumstances at the time of impact occasioning death in which the accused was driving at a speed exceeding the speed limit by more than 45 km/hr. (v) S 52A(5) relevantly provides that the circumstances in which a vehicle is involved in an impact occasioning the death of a person include if the death is occasioned through: an impact between the person and the vehicle; or (arguably) the impact with an object (which includes a median strip or gutter) in, on or near which the person is at the time of the impact. Statutory interpretation 1. The principles governing the task of statutory construction are well- established. As was said by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69], the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute", with the meaning of the provision to be "determined by reference to the language of the instrument as a whole". Their Honours also referred to the statement of Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". 2. In Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [47], the majority emphasised that the "language which has actually been employed in the text of legislation is the surest guide to legislative intention", but that the "meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy": see also Thiess v Collector of Customs (2014) 250 CLR 644 at [22]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503. In Lacey v Attorney General (Qld) (2011) 242 CLR 573 at [44] the majority emphasised that the "purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction". 3. However, as explained in SZTAL v Minister for Immigration and Border Protection (2017) 91 ALRJ 936 at [14] the text cannot be considered without regard to its context and purpose: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. Principle of legality 1. The accused places reliance on the "principle of legality" to stated, per Potter v Minahan (1908) 7 CLR 277 at 304 that it is improbable that "the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness". This was however a principle said to be applied with care and with regard to the context in which the question of construction arises as was made clear by Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) CLR 309 at [19] and Lee v New South Wales Crime Commission (2013) 251 CLR 196 at [313] – [314]. Consideration 1. Having considered the development of s 52A, the terms "at the time of impact" and "the impact of the vehicle with an object" as appear in the current form of the offence must be considered not only through an analysis of the text and structure of s 52A but in its historical context and its purpose, as appears in Second Reading speeches and in the common law. (i) "When vehicle is involved in impact: the impact of the vehicle with an object…" 1. The accused argued in oral submissions that the facts of the case are such that the ordinary and literal meaning of "the time of impact" as provided by s 52A(5) (being "..the circumstances in which a vehicle is involved in an impact occasioning the death of….a person include if the death …is occasioned through….the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact") operate in the circumstances of this case, so that the time of impact for the purposes of Ss (7) time of aggravation must be measured at the time the accused's vehicle hit either the median strip, or the kerb (per Ss (5)(d)), or at the time the accused car hit the pedestrian (5(c)). If the latter is selected then the time of impact should be amended as precisely the time the car struck Mr Chatfield and not some proceeding period of time. 2. As established from the above historical analysis of the development of s 52A, together with the case law, the legislature has attempted in Ss 5 and 6 to encapsulate an unclosed list of scenarios in which accidents occur on the road from which death or grievous bodily harm occur. It is a matter for the Crown as to which scenario, they seek to establish, in order to prove its case. 3. Although there is some initial attraction to the accused's argument concerning the application of s 52A(5)(d) of the Act in the context of the facts of this case, and the express reference to a median strip and gutter in the definition of "object", I do not ultimately accept that they are in fact applicable, taking into account the historical development and analysis of the legislation together with the term "occasioned through". 4. The above analysis makes clear that the development of Ss(5) has arisen from an attempt by Parliament to extend criminal blameworthiness in driving cases in a myriad of circumstances which include where the vehicle driven by an accused person is not necessarily involved in the eventual impact that kills (or injures) the victim or even, the scenario where the vehicle is not involved in an impact at all. These scenarios were the subject of discussion in the second reading speeches in 1994 resulting in the relevant amendments but can be traced back to the Second Reading Speech in 1955 referred to above (at [35]). It is apparent from this analysis that sub-section (5)(d) has application when the car driven by an accused impacts with another vehicle or an object, and it is the "other" vehicle or the object that occasions death or injury (the pier in Harlor, or the pole referred to in the second reading speeches). Contrary to the accused's argument, sub-section (6) applies to a further extended situation where it is the other vehicle that itself causes (as a result of the act of the accused's vehicle) an impact with other vehicles or an object that occasions the impact, but itself is not involved in the impact, the interplay of which is best understood in the context of the facts set out in Buttsworth (see [42]-[43] above) and the scenario where the accused's vehicle is not involved in an impact at all (see [48]-[50] above). 5. In this situation it is the Crown case that the impact was occasioned as a result of the impact between the person (Mr Chatfield) and the accused's vehicle and not another vehicle or object, even if the accused's vehicle struck two obstacles, namely the median strip and the kerb, before striking the pedestrian. 6. Even if the interpretation that the accused relies upon was available as an argument as to the possible circumstances of impact, it is for the Crown to put its case. It is for the Crown to establish that, in respect of count 1, that the death of the pedestrian was occasioned as a result of impact between the accused's car and the pedestrian and that at the time of the impact, the accused was driving at a speed dangerous to another person and that the accused was driving over 45 km over the speed limit. (ii) "At the time of impact" 1. As stated, the term "at the time of impact" was extended to include a contemporaneous period of driving by the High Court of Australia in Jiminez in 1992. That language was replicated by the amendments to the provision by Parliament in 1994 concerning the circumstance of aggravation. Those words are further prefaced by the words "any circumstances at the time of the impact". Although neither of the parties, nor myself, have been successful in finding any case law where the concept of contemporaneous driving period, as seen in the Jiminez, has been applied in the context of the aggravating feature of speed, I do not see that this approach is excluded from establishing that element of aggravation. The use of the identical language as considered by the High Court in Jiminez to the circumstances of aggravation in ss (7), and the repetition of the same words throughout the provision, rather suggests that the same approach is open. 2. Fundamentally, the blameworthy nature of the driving that the Crown relies upon arises at the time that the accused's vehicle "fishtails" and, they say, loses control of the vehicle before it travels across the inner lane, collides with the median strip and kerb and strikes the pedestrian. Their case relies on them establishing that the period between the fishtail and the impact with Mr Chatfield was a contemporaneous period of time. 3. The accused argues that the point of "loss of traction" should not be considered an "impact" or a point at which the speed at the time of impact causing death ought be assessed. The accused argues that such an interpretation would be vague, and would allow for earlier periods of driving not connected with the impact to be used in satisfaction of the element. 4. The accused's argument that Jiminez can be distinguished on the basis that it dealt with manner of driving over a continuous course of driving and not speeding as an aggravating factor pursuant to s 52A(2) of the Act. As was pointed out by Barwick CJ in McBride (at [51]) manner of driving "can cover a wide and diverse set of facts". 5. The closest consideration to the issues that arise is by the Court of Criminal Appeal in Williams v R [2012] NSWCCA 286, concerning a person driving a vehicle "out of control". The Court determined the driver is nonetheless still taken to be driving the vehicle even whilst the car was out of control: per Basten JA at [12] and Adams J at [23]. Adams J (at [24]) referenced speeding in the context of a contemporaneous period in which the car became out of control (albeit in respect of a different aggravating factor). The court in that case did not limit the application of Jiminez to cases involving sleep or some intervening act. Adams J at [24] said: In Jiminez, the driving whilst drowsy was the dangerous driving which led to sleep and thus the loss of control which the appellant was attempting to correct at the time of impact. Another example is speeding around a corner, leading to the loss of control of the vehicle and an impact whilst the driver is attempting to regain control. At the time of impact, the driver is not driving dangerously but the connexion between the dangerous driving and the impact is so direct and immediate as to render the driver liable under the section… 1. The words of sub-section (7) are to be considered in their actual and historic context, noting that the provision states "[I]n this section, circumstances of aggravation includes any circumstances at the time of the impact…". The inclusion of the words "at the time of the impact" carries with it the interpretation given to those same words in Hain, Jiminez and McBride. The use of the preceding words "any circumstances" suggests breadth of interpretation rather than the more narrow approach suggested by the accused. I do not find that the heading in Ss 5 "when vehicle is involved in impact" changes this. 2. I do not consider the interpretation of these terms as contrary to the principle of legality as no abrogation of any right, freedom or immunity or fundamental principle or system value has been abrogated or curtailed. The language used in the latest form of the legislation is apparently deliberate and considered in case law over time. The Parliament clearly intended to widen the application of the provision and increase its scope as well as increase the relevant penalties. The common sense application of the legislation to the facts of this case is that it is open to the Crown to assert that the death of the pedestrian was occasioned through impact of the accused's car with that person. Subsection (5)(d) would only have application if the death of the pedestrian had been occasioned by another vehicle, or an object that the accused's vehicle had come into impact with. 3. In answer to my questions posed at [31] above: 1. Is the Crown required to rely upon the impact between the vehicle and an object as the means by which death is occasioned pursuant to s 52A(5)(d) just because the vehicle driven by the accused impacted with "objects" prior to it impacting with the deceased; Answer: no; and 2. If not, can the reasoning of the Court in Jiminez as to a contemporaneous period of driving preceding the impact, survive the amended version of s 52A and apply to determining the time of impact in respect of the circumstances of aggravation? Answer: Yes. 1. I decline to make the order sought at (2) of the Notice of Motion. The proper construction of the aggravated provision as averred to in Count 1 of the indictment properly allows for the time of impact to be the point in which the accused's vehicle struck Mr Chatfield. Although it has not been considered by any intermediate or High Court decision that I am aware of, the use of the term "at the time of impact" allows the Crown to put its case on the basis that the circumstance of aggravation may be assessed from a point of time prior to the actual point of impact if they can establish it was so nearly contemporaneous as to be considered as the one act, and to be in fact, the cause of the death. Consistent with the plurality in Jiminez, the issue will be whether the period at which the accused was said to be driving at a speed 45 km/hr over the speed limit, was sufficiently contemporaneous with the time of impact to satisfy the requirement of s 52A such that the driving during that period was, in a practical sense, the cause of the impact and the death. The matter of contemporaneity will be a matter for me as trier of fact as a judge sitting alone to determine, after having heard all the evidence. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2020