New South Wales Supreme Court CITATION : DIRECTOR OF PUBLIC PROSECUTIONS v Victor VELLA [1999] NSWSC 49 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 11954/98 HEARING DATE(S) : 22/09/98 JUDGMENT DATE : 16 February 1999 Plaintiff - Director of Public Prosecutions PARTIES : First Defendant - Victor Vella Second Defendant - Paul Anthony Sloane JUDGMENT OF : Hulme J at 1 LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Paul Anthony Sloane COUNSEL : Plaintiff - G.S. Hosking SC First Defendant - P.M. Paish Plaintiff - S.E. O'Connor, Solicitor for Public Prosecutions SOLICITORS : Second Defendant - I V Knight - Crown Solicitor CATCHWORDS : Criminal Law; Autrefois acquit; Dangerous driving; Negligent driving ACTS CITED : Crimes Act S52A Traffic Act S4 DECISION : Refer paragraph 13 of Judgment IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION NO: 11954 OF 1998 Tuesday, 16 February 1999 HULME J DIRECTOR OF PUBLIC PROSECUTIONS v Victor VELLA JUDGMENT 1 HIS HONOUR: By case stated the Director of Public Prosecutions appeals against the dismissal of an information alleging that in breach of Section 4(1) and (3) of the Traffic Act 1909 (NSW), the Respondent drove a motor vehicle upon a public street negligently, occasioning the death of a person. 2 In consequence of the events which led to that charge, the Respondent had been indicted before His Honour Judge Mitchelmore on a charge under the Crimes Act 1900 (NSW), s52A(1) that he drove a vehicle when it was involved in an impact occasioning the death of the person named and at the time of the impact he was driving the vehicle in a manner dangerous to another person. On 4 December 1996 the Respondent was acquitted of that charge. The Magistrate who dismissed the information concerning what I may call the negligent driving charge, had tendered before him a copy of the summing up of Judge Mitchelmore and it was the terms of that and the Respondent's acquittal which formed the foundation for the Magistrate's decision under appeal. In the words of the Stated Case:- "I held that the only issue left for the jury's determination in terms of the manner dangerous test appeared to have been whether the Respondent had failed to keep a proper lookout and the jury's decision can only mean that they were not satisfied beyond reasonable doubt in that regard. I held that since that issue, as opposed to the test under Section 52A of the Crimes Act or Section 4 of the Traffic Act, had already been determined by the Jury, the effect of the proceedings under Section 4 would be to re-try that issue, which has already been determined by a properly instructed Jury. I therefore held that the Defendant was entitled to invoke the principle against double jeopardy and to enter a plea in bar to the proceedings under Section 4 of the Traffic Act. I, therefore, dismissed the information." 3 Before me this finding as to the effect of the jury's decision and the conclusion that the Defendant was entitled to invoke the principle against double jeopardy and to enter a plea in bar were the subject of challenge. Consideration of the former requires attention to the terms of the summing up Judge Mitchelmore gave to the Jury, a copy of this summing up being attached to the stated case. Having considered it, my conclusion is that it provides no basis for a finding that the only issue left for the jury's determination was whether the Respondent had failed to keep a proper lookout. Passages from the summing up which lead me to this view are as follows. (For convenience and ease of future reference I have numbered the paragraphs and indicated the page of the transcript of the summing up on which they appear. The paragraphs quoted are not necessarily consecutive):- "Page 2 (i) There is no dispute that Mr McIvor was killed. There is no dispute Mr McIvor was killed in this impact. There seems no dispute that the Accused was the driver of the red truck that was involved in the impact as a result of which Mr McIvor was killed. (ii) However, other than those matters where there is no dispute between the Crown and the Accused, I will be endeavouring to express no opinion on the facts at all.. Page 6 (iii) I now propose to set out for you the essential elements of the charge that the Crown must prove beyond reasonable doubt. There are four of them: 1. That the Accused was the driver at the relevant time. 2. That he was driving in a manner dangerous to the public. 3. That while he was so driving there was an impact with Mr McIvor's vehicle. 4. That as a result of that impact the death of Lawrence McIvor occurred. (iv) As I understand it, the first, third and fourth elements are not in dispute. That is, the Accused admits he was the driver at the relevant time; that there was an impact with Mr McIvor's vehicle and as a result of such impact, the death of Mr McIvor was occasioned. Page 7 (v) However, it is the second element and the second issue which is most in dispute. That is, at the relevant time the accused was driving in a manner dangerous to the public. (vi) In order to determine whether the Accused was driving in a manner dangerous to the public, you must first decide in what manner he was driving. You must then consider the circumstances in which he was driving. Both of those are simple fact-finding exercises. Having decided how he was driving and in what circumstances, then you decide whether that manner of driving was, in those circumstances, dangerous to the public. (vii) The test of driving in a manner dangerous to the public is an objective test. The Crown does not have to prove that the Accused intended the management and control of his vehicle to be dangerous to the public. His conduct can be judged, and must be judged, according to an objective standard fixed in relation to all uses of public roads generally. That is what is meant by an objective test. (viii) You must determine whether the conduct of the Accused amounted to a serious breach of what you consider to be the proper management and control of a vehicle upon a public road, so serious as to be, in reality, a potential danger to other persons on, or in the vicinity of, that roadway. By manner of driving I mean the manner in which the accused controlled and managed the motor vehicle. Page 8 (ix) It is for the Crown to prove the manner of driving is dangerous. Here the Crown say the Accused veered into the incorrect side of the road. This is the driving which the Crown relies upon as being dangerous to the public. (x) Now it is not permissible to say that because there has been an accident and someone has died as a result, then the manner of driving must have been dangerous. You must consider all the facts as disclosed by the evidence and ask yourself whether they establish the manner of driving alleged was dangerous. Here we are concerned with a manner of driving which in the particular circumstances creates a real danger; a manner of driving that falls short of the proper management of a motor vehicle on a road, so far short that it amounts to a crime. Page 9 (xi) But I repeat, that what must be proven and proven beyond reasonable doubt is some serious breach of the proper management and control of the Accused's vehicle on a public road, so much so that it amounts to a criminal act. Page 10 (xii) Now, applying the law that I have just set out to you to the factual situation here, now in order for the Accused to be convicted you must be satisfied beyond reasonable doubt that his driving at the time of impact was not mere negligence but it was of such a nature that it was of a more serious breach of the regard for the safety of others. (xiii) As I have stated to you on a number of times, you must be satisfied beyond a reasonable doubt that the driving of the Accused at the relevant time was so dangerous that it amounted to a criminal act. Page 11 (xiv) I will set out for you, in summary form, the matters on which the Crown seek to rely. (xv) The Crown allege that as a result of the Accused veering into the incorrect side of the road, a collision occurred with Lawrence McIvor who was driving along the same road at the same time, in the opposite direction to the Accused. Mr McIvor, it is common ground, was also driving a truck at the time. You have heard that Mr McIvor died as a result of injuries received in the impact. Page 12 (xvi) The Crown say the Accused had a clear view of the bridge for over a kilometre. The Accused collided with a truck coming the other way. The driver of the truck was killed in the accident. The Crown say the Accused was driving without keeping a proper lookout. The Crown say that the Accused failed to brake when he should have braked. The Crown say the skid marks and the length of the skid marks attest to the Accused's dangerous manner of driving. (xvii) The Accused says the Crown have not established beyond reasonable doubt that he was driving in a manner dangerous to the public. Page 13 (xviii) The Accused's counsel says that the Accused was a victim of circumstance. Counsel for the Accused says there was lattice on the road - on the bridge. Counsel for the Accused says the Crown have not negatived beyond reasonable doubt that the Accused's heavy braking was due to an obstruction in front of the Accused. In any event, Counsel for the Accused says emergency braking is not necessarily dangerous driving. Counsel for the Accused says that here the emergency braking was a split-second decision. (xix) Mr Charteris, counsel for the Accused, puts to you in all the circumstances of this case, the driving of the Accused cannot constitute, beyond reasonable doubt, dangerous driving. Page 15 (xx)…What follows is a summary of the Crown's submissions to you. (xxi) The Crown says to you the real issue is whether the Accused was driving in a manner dangerous to the public. The Accused was driving the red truck. Any driver should keep a proper lookout. The Crown asks rhetorically "Why did the accident occur? The Crown says you have the record of interview and the Accused said "I was driving along, the next minute everyone just suddenly slowing down. I just hit my brakes, that's all I remember". Page 16 (xxii) The Crown say to you "Look where the skid marks start". The Crown say to you that the skid marks point to an inevitable conclusion that the Accused was not keeping a proper lookout; the Accused was not watching the bridge and the cars on the bridge. The Crown say that the Accused assessed his position far too late. There was no reason that the Accused should not have assessed his position some significant time before he did. (xxiii) The Crown argue that the Accused applied emergency braking and the Crown say that the reason for the emergency braking was because the Accused was not watching out where he was going. He was not keeping a proper lookout. The Crown say that the Accused failed to apply his brakes at the first proper and reasonable opportunity. The Crown say latticework or no latticework, the Accused had a lot of time, a lot of notice, that the latticework was there. Page 17 (xxiv) The Crown say that the collision occurred and Mr McIvor died because the Accused was driving in a manner dangerous to the public. The Crown say that the only appropriate verdict is one of guilty. (xxv) That being in brief summary of the matters that the Crown put to you. What follows now is the summary of what Mr Charteris, counsel for the Accused, put to you. (xxvi) His submissions, in summary, as follows (sic): Are you satisfied beyond reasonable doubt the Accused is guilty of the charge before the Court? The counsel for the Accused pointed out the Accused has no recollection. This, of course, it is said, makes the presentation of the Accused's case quite difficult for him. The Accused's counsel says the prosecution cannot show you what was on the road. The Crown does not put to you any reason at all for the emergency braking. The submission for counsel for the Accused is the Accused was the victim of the circumstance. Page 18 (xxvii) Counsel for the Accused says the matter of the lattice is quite important - very important - in this trial. Counsel for the Accused asserts to you that there could have been more lattice than one piece of lattice. Counsel for the Accused submits to you that the Crown's presentation of evidence about the lattice is both incomplete and unsatisfactory. (xxviii) Counsel for the Accused says to you that you should not assume the lattice was lying flat on the road, no evidence one way or the other about that. Counsel for the Accused puts to you that you might well think the obstruction was the cause of the emergency braking. Page 19 (xxix) …Counsel for the Accused urges upon you that you will find there was lattice on the road and counsel for the Accused says the accident took place on the bridge, and if you look at the plan and the photos you will see that the bridge does not give a truck driver - or any driver for that matter - many options. Counsel for the Accused said that emergency braking was the appropriate option for the Accused to take. (xxx) Counsel for the Accused said that you will not be satisfied beyond a reasonable doubt the Accused is guilty of this offence. Counsel for the Accused says the appropriate verdict is one of not guilty and urges you to enter that verdict as a result of your deliberations in this trial. 4 The paragraphs I have numbered (i)-(v) show that His Honour was concerned to contrast issues not in dispute from issues which were in dispute. Having identified that what was in dispute was the second element of the charge as His Honour formulated it, he then went on in paragraph (vi) to break that element down into the topics of manner, circumstances and what I may call characterisation. 5 In the paragraphs I have numbered (viii) and (x)-(xiii), His Honour directs further attention to the question of characterisation and whether the Defendant's manner of driving, whatever that manner may have been, answered the description "dangerous to the public". To similar import are parts of the paragraphs I have numbered (xvii), (xix) and (xxi). 6 It may be conceded that in the paragraphs in which His Honour was directing attention to the factual issues bearing on the manner of the Defendant's driving the issue of whether the Defendant was keeping a proper lookout loomed large - see e.g. paragraphs (xvi) (xix), (xxii) and (xxiii). However, had that been the only issue posed for the jury's determination, there would have been no need for much of the balance of the summing up which I have quoted. 7 Considered in totality, the summing up provides no ground for the Magistrate's finding that the only issue left for the jury's determination was whether the Respondent had failed to keep a proper lookout. Thus there was no basis for his conclusion that the jury's decision meant that they were not satisfied beyond reasonable doubt in that regard. For example, the jury may well have accepted that the Defendant was not keeping a proper lookout but taken the view - and whether rightly or wrongly does not matter for present purposes - that the failure was not, to quote from the paragraph of the summing up I have numbered (xi) so "serious breach of the proper management and control of the Accused's vehicle on a public road… that it amounts to a criminal act." Thus the foundation for the invocation of principle against double jeopardy and the entering of a plea in bar did not exist. 8 It is appropriate that I say also that the circumstances which the Magistrate had to consider were not such as to permit of any application of a plea in bar or, as His Worship was sitting in a local court, a defence in the nature of a plea in bar - see Pearce v The Queen (1998) 72 ALJR 1416 at p 1420. In that case the topic of pleas in bar was the subject of consideration and it was made clear that such a plea requires that attention be paid to the elements of the offences involved. 9 The charge on which the Defendant was acquitted by the jury was brought under the Crimes Act 1900 (NSW), s52A. As formulated against him, its essential elements were that:- 1. He was the driver of a motor vehicle. 2. While being so driven that vehicle was involved in an impact with another vehicle carrying Mr McIvor. 3. The impact occasioned the victim's death, and 4. At the time of the impact the Defendant was driving in a manner dangerous to another person or persons. 10 The charge brought against the Defendant before the Magistrate was under the Traffic Act, s4. As formulated the essential elements of this charge were:- 1. The Defendant was driving a motor vehicle. 2. Upon a public street. 3. Negligently. 4. Occasioning the death of Mr McIvor. 11 Sub-section 4 (2) requires that in considering whether an offence has been committed, a court have regard to all of the circumstances of the case including the nature, condition and use of the street and the amount of traffic which is or might be expected to be upon it, matters clearly relevant to the question whether a manner of driving was dangerous. 12 The concept of driving negligently means driving in a manner which is negligent and a convenient definition of "negligent" is "careless, unheedful, inattentive" - expressions which direct attention to the attitude of the driver. The concept is quite different from driving in a manner which is dangerous - a concept which looks to the effect, actual or potential, on others, albeit a manner of driving may involve both concepts. Thus each offence involves proof of a fact which the other did not. Pearce v The Queen (supra) at p 1421 says that therefore the plea has no application. 13 On this ground also the magistrate erred. Accordingly, it is appropriate to make the following orders:- 1. Quash the decision of Paul Anthony Sloane, magistrate, given on 17 March 1998, dismissing an information laid against the Respondent, alleging that on 14 July 1995 at Berkshire Park, in the State of New South Wales, he did drive an motor vehicle, to wit, International Acco Table Top lorry bearing registration number KWI-671, upon a public street, negligently, occasioning the death of one Laurence McIvor, in breach of section 4(1) and (3) of the Traffic Act 1909 (NSW). 2. Declare that Paul Anthony Sloane erred in holding that the jury's decision, at the trial in the District Court in which the jury returned a verdict of not guilty of an offence under the Crimes Act 1900 (NSW), s52A(1), can only mean that they were not satisfied beyond reasonable doubt that the First Defendant had failed to keep a proper lookout and that the First Defendant was entitled to invoke the principle against double jeopardy and to enter a plea in bar to the proceedings under the Traffic Act 1909 (NSW), s4. 3. Order that the Second Defendant proceed to hear and determine the said information according to law and in accordance with the Reasons delivered in these proceedings. Last Modified: DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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