District Court New South Wales Medium Neutral Citation: R v Fennell [2019] NSWDC 397 Hearing dates: 07 August 2019 Decision date: 07 August 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Appropriate jury direction where defence assume onus of proof. Catchwords: CRIME — Driving offences — Dangerous driving occasioning death – causation - defence raised on the evidence - onus of proof- no need to boldly go where no one has gone before - go back to 1956 - onus of proof on defence on balance of probabilities - jury directions. CRIMINAL PROCEDURE — Trial — Directions to jury - dangerous driving causing death - where a statutory defence raised. Legislation Cited: Crimes Act (NSW) 1900 Evidence Act 1995 Cases Cited: Arulthilakan v The Queen [2003] HCA 74; (2003) 78 ALJR 257 Burns v The Queen [2012] HCA 35; 246 CLR 334 IL v The Queen [2017] HCA 27; (2016) 260 A Crim R 101 R v F (1957) SR (NSW) 543 R v Lavender [2005] HCA 37; 222 CLR 67 R v Simon George Lees (No 2) (Verdict); R v Stuart Lewry (No 2) (Verdict) [2019] NSWDC 118 R v Windle (1958) SR (NSW) 110 Royall v R [1991] HCA 27; 172 CLR 378 Whelan v R [2012] NSWCCA 147 Category: Procedural and other rulings Parties: Amelia Rae Fennell (the accused) Director of Public Prosecutions Representation: Counsel: Mr R Steward (for the accused) Mr D Scully, Deputy Senior Crown Prosecutor (for Director of Public Prosecutions) Solicitors: Legal Aid NSW (for the accused) File Number(s): 2018/00046559 Judgment 1. On 7 September 2017, at Oak Flats, south of Wollongong, there was a collision between a pedestrian, Mrs Jones (78 years old), and a motor vehicle driven by Ms Amelia Fennell (23 years old). Mrs Jones had stepped onto the roadway, just south of a roundabout, from a pedestrian refuge. There was no marked pedestrian crossing but it was a marked high pedestrian area. Ms Fennell was driving her car at an estimated speed of 58 kph as she exited the roundabout; the sign posted speed was 40 kph. She told police she did not see Mrs Jones but felt the impact. As a result of the impact Mrs Jones died. 2. Ms Fennel was charged with driving in a manner dangerous and occasioning the death of Mrs Jones: s52A Crimes Act (NSW) 1900. She said she was not guilty and on 5 August 2019 a jury was empanelled to try her for that charge. 3. At the beginning of the trial it was agreed that there was an impact between the vehicle driven by Ms Fennell and Mrs Jones and that Mrs Jones died as a result of that impact. Two critical issues were identified in the opening addresses: 1. Prosecution - Whether the prosecution could prove beyond reasonable doubt that at the time of the impact between the car Ms Fennell was driving and Mrs Jones, Ms Fennel was driving the vehicle in a manner dangerous to another person or persons. 2. Defence - Whether Mrs Jones death resulted not from any dangerous driving by Ms Fennell but because Mrs Jones stepped out in to traffic without taking any proper precautions for her own safety and would have died no matter what the manner of driving by Ms Fennell. 1. On 6 August 2019, toward the close of the Crown case I raised with counsel what written directions should be given to the jury. It is my practice to give the jury written directions about the elements, issues and key terms in the indictment before counsel address. 2. Mr Steward, for Ms Fennell, submitted that it was for the Crown to prove beyond reasonable doubt that Ms Fennell was driving in manner dangerous and that it was that driving that caused the impact and consequent death of Mrs Jones. He relied on a passage from Whelan v R [2012] NSWCCA 147, at [2], per Allsop P. Mr Crown urged on me close consideration to the terms of section 52A Crimes Act (NSW). 3. I expressed the tentative view that causation issues in such matters had been long settled but if a novel point was raised it needed to be considered. We then adjourned for the day. When novel issues are raised it is best to ask; why hasn't this issue been raised before and if so why not? It is rare indeed for a judge of this court to be asked to boldly go where no one has gone before 4. Causation issues have been the subject of much debate: Royall v R [1991] HCA 27; 172 CLR 378; R v Lavender [2005] HCA 37; 222 CLR 67; IL v The Queen [2017] HCA 27; (2016) 260 A Crim R 101; Arulthilakan v The Queen [2003] HCA 74; (2003) 78 ALJR 257; Burns v The Queen [2012] HCA 35; 246 CLR 334; R v Simon George Lees (No 2) (Verdict); R v Stuart Lewry (No 2) (Verdict) [2019] NSWDC 118 5. In Whelan, Allsop P noted of causation that: "In crime, it remains, in many contexts, a jury question and is governed by the test in Royale. The question is one of fact, dealt with by common sense, appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter, and so the causal connection must be sufficiently substantial to permit a conclusion of criminal responsibility. .. the section(s 52A of the Crimes Act 1900 (NSW)) requires a causal connection between the vehicle (driven in the required way) and an impact, and the death of a person." 1. It was on this passage that Mr Steward based his initial submission. 2. Overnight it became clear why that submission did not have merit. As Mr Steward promptly conceded when we resumed this morning; the issue was resolved in 1956. 3. In R v F (1957) SR (NSW) 543, the Court of Criminal Appeal noted that s52A Crimes Act (NSW) is an offence created by statute. The ingredients necessary to constitute that offence, and therefore to be proved by the Prosecution, must be found by looking at the statute and construing its terms. The Court applied the ordinary canons of construction to the words of s52A, as it then was, and concluded that the only facts necessary to be proved by the Prosecution were those in s 52A(1) . 4. The existence of a defence, in what is now s52A(8) Crimes Act (NSW), did not put into s52A(1) a further ingredient. Rather, the court held that the sub-section, "created both in form and substance, a true case of an exemption or exception, and it is for the accused to bring himself within its terms, not for the Crown to establish that he does not come within its terms." 1. Consistent with common law principles now found in s141(2) Evidence Act 1995, where the defence have an onus of proof, the standard of proof is balance of probabilities. 2. The following year in R v Windle (1958) SR (NSW) 110, the Court revisited this issue. It confirmed R v F was good law and dealt with the directions a jury should be given if evidence was before them sufficient to bring the defence (now in s58(8)) into operation: "… it would be sufficient for the defence to show a balance of probabilities in favour of the view that the death occasioned by the impact was not in any way attributable to the speed at which or manner in which the applicant was driving his car." 1. The Court stressed that in directing a jury a judge should use the words of the sub-section, which require merely that the defence shall establish the absence of any causal connection between the death and the speed at which or manner in which the car was being driven. 2. Section 52A (8), was in 2017, and is still is, in very similar terms to the 1957 version. It presently reads: "Defences It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant): (a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs, or (b) to the speed at which the vehicle was driven, or (c) to the manner in which the vehicle was driven." 1. Accordingly, this afternoon the following written direction was given to the jury. Counsel will address the jury tomorrow. Written Direction where s52A (8) defence is raised DISTRICT COURT OF NEW SOUTH WALES CRIMINAL JURISDICTION R v Amelia Fennell ELEMENTS Prosecution case The prosecution must prove each element of the offence beyond reasonable doubt. Ms Fennell does not have any obligation or onus of proving her innocence. The charge against Ms Fennell is that she drove a vehicle involved in an impact, by which impact the death of Mrs Jones was occasioned (caused), and that at the time of that impact Ms Fennell was driving that vehicle in a manner dangerous to another person or persons. The Prosecution must establish, beyond reasonable doubt, each of the following elements or ingredients of the offence charged: That Ms Fennell was the driver of vehicle, AJ52LW; and That the vehicle was involved in an impact — here, a collision between Ms Fennell's vehicle and Mrs Jones; and That the impact caused the death of Mrs Jones; and That, at the time of the impact, the accused was driving the vehicle in a manner dangerous to another person or persons. There is no dispute here that Ms Fennell: 1.Was driving AJ52LW on 7 September 2017 at Oak Flats; and, 2.That the vehicle she was driving was involved in an impact with Mrs Jones; and 3.That Mrs Jones died as a direct result of that impact. What is in issue here is whether the prosecution have proved beyond reasonable doubt that at the time of the impact Ms Fennell was driving the vehicle in a manner dangerous to another person or persons. You must focus on Ms Fennell's driving. You do not work backwards and say, "Well there was a collision, Mrs Jones was killed - Ms Fennell must have been driving dangerously". It is the quality of Ms Fennell's driving not the result of the collision that is important when this critical element in the Prosecution case is considered. The manner in which a person drives a vehicle includes all matters connected with the management and control of the vehicle when it is being driven, including its speed relative to the road conditions and time of day and the attention being shown by the driver to her driving. Here, the Prosecution rely on the period of driving immediately before the collision with Mrs Jones and the manner in which Ms Fennell was driving. This is the important period you have to examine. The critical question for you as jurors, as members of the community, is Element 4: Was Ms Fennell's driving as she entered and exited the roundabout, driving in a manner dangerous to members of the public? Whether or not that manner of driving was "dangerous" will depend upon all the circumstances, that is, the facts that you find took place. The manner of driving will be "dangerous" if the Prosecution has established that there has been some serious breach of the proper conduct (driving) of the vehicle — so serious as to be, in reality and not merely as a matter of speculation, potentially dangerous to another person or to other persons. This test, as to whether that conduct was dangerous, is an objective one. The Prosecution does not have to establish that Ms Fennell actually knew or realised that she was driving the vehicle a manner dangerous to another person or persons. Her conduct must be judged according to an objective standard; that is, the standard that applies to all drivers of all vehicles. That is what is meant by an objective test. Defence case If all four elements in the prosecution case have been proved beyond reasonable doubt you can convict Ms Fennel but before you can convict Ms Fennell, you will need to consider whether a defence case has been proved. If it is proved, your verdict will be not guilty. Here, the defence case is that there is enough evidence for you to find that Mrs Jones' death was not in any way attributable to the manner in which Ms Fennell drove her car. The onus placed on the accused to prove this defence is not as high as that placed on the Prosecution. The defence must show - there is a balance of probabilities in favour of the view that that Mrs Jones' death was not in any way attributable to the manner in which Ms Fennell drove her car. They must do so by reference to evidence put before you in the trial. While the onus of proving this defence rests on the accused, she does not have to prove it beyond reasonable doubt, that standard of proof is placed only on the prosecution. It is enough, or sufficient, that the accused proves this matter on the balance of probabilities: "balance of probabilities" means, more likely than not, or more probable than not. If, having considered the relevant evidence, and submissions of both parties in relation to the defence case, you are of the view that it is more probable than not, or, more likely than not, that Mrs Jones death was not in any way attributable to the manner in which Ms Fennell drove her car, you will find Ms Fennell not guilty. If, on the other hand, you are not so satisfied, then you should find the accused guilty of the offence charged, provided, as I have earlier indicated, that you are satisfied, beyond reasonable doubt of the matters that the Prosecution must prove - which here, critically, is element 4 - that at the time of the impact the accused was driving the vehicle in a manner dangerous to the public. ********** 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: 08 August 2019