R v Lewis [2006] NTSC 94

PARTIES: THE QUEEN

v

LEWIS, Claude

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: SCC 20602079

DELIVERED: 11 December 2006

HEARING DATES: 4 December 2006

JUDGMENT OF: Olsson AJ

CATCHWORDS:

CRIMINAL LAW– Dangerous act - Driving at speed with seriously impaired
faculties by reason of intoxication- Indictment- Intoxication alleged as a circumstance of aggravation but not as the dangerous act- Whether charge bad for duplicity or latent ambiguity- Procedure.

Section 154(1) & (4) of the Criminal Code.
Sandby v The Queen (1993) 117 FLR 218, applied
Baumer v The Queen (1987) 48 NTR 1; Hoessinger (1992) 62 A Crim R 146, referred to
The Queen v Ireland (1987) 49 NTR 10; Volz v The Queen (1990) 100 FLR 393, considered

REPRESENTATION:

Counsel:
Crown: D. Lewis
Accused: D. Woodroffe

Solicitors:
Crown: Office of the Director of Public Prosecutions
Accused: North Australian Aboriginal Justice Association

Judgment category classification: B
Judgment ID Number: Ols0613
Number of pages: 9
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

R v Lewis [2006] NTSC 94
No. SCC 20602079

BETWEEN:

THE QUEEN
Crown

AND:

CLAUDE LEWIS
Accused

CORAM: OLSSON AJ

REASONS FOR RULING

(Delivered 11 December 2006)

Introduction

[1] The accused, Claude Lewis, initially pleaded not guilty to an indictment expressed in the following terms:

"Claude Lewis, on 18 January 2006 at Katherine in the Northern Territory of Australia, did an act, namely drove a Hyundai Excel motor vehicle NT registration 388 238 at speed whilst under the influence of alcohol to such an extent that he was unable to properly control the vehicle that caused serious potential danger to the lives of the public or a member of it in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger and not have done that act.

AND THAT the dangerous act involved the following circumstances of aggravation, namely,
(i) that at the time of doing the act Claude Lewis was under the influence of an intoxicating substance, namely, alcohol.
Section 154(1) & (4) of the Criminal Code."

[2] That indictment replaced an earlier indictment that was, in its form, plainly duplicitous and/or latently ambiguous.

[3] The plea having been entered, counsel for the accused presented detailed argument to the effect that the revised form of indictment was also bad, in that it remained duplicitous, still contained latent ambiguity and sought to aver other than an act capable of constituting an offence pursuant to s 154(1) of the Criminal Code.

[4] Having also received submissions from Mr Lewis, of counsel for the Director of Public Prosecutions, I ruled that the indictment constituted a valid presentment of the accused. I intimated that I would publish my reasons at a later date, which I now do.

Relevant narrative background

[5] Early in the evening of 18 January 2006, but when it was dark, the accused was driving his Hyundai Excel motor vehicle registration 388 238 along the Victoria Highway near the Binjari Community turnoff. It is common ground that he was travelling on the correct side of the road at a speed of about 119 kilometres per hour with his headlights on high beam. There was no speed limit applicable in the area.

[6] However, it is beyond dispute that he had been drinking alcohol and was highly intoxicated. Subsequent tests revealed that his blood alcohol concentration was 0.331%.

[7] As the accused’s vehicle approached the turnoff a woman named Jodie Farrar, who was said to be staggering drunk, walked out onto the road and was struck by the accused’s vehicle and killed instantly. The impact caused the vehicle to veer across to its incorrect side of the road, where it stopped some distance further on. The accused turned the vehicle around and drove back near to the scene of impact. He was thereupon assaulted by the deceased woman's husband and later taken to hospital after the police arrived on the scene.

[8] The Crown sought to base its case on the proposition that driving a motor vehicle at 119 kilometres per hour at night whilst having a blood alcohol concentration of 0.331% was an inherently dangerous act that necessarily caused serious potential danger to the lives of any member of the public in the relevant area. It proposed to call expert evidence to establish that a driver having a blood alcohol concentration at the level found in the accused would necessarily have been driving with seriously impaired faculties, including increased reaction time, reduced visual acuity and a constellation of symptoms in the confusion/stupor categories.

Submissions on behalf of the accused

[9] Mr Woodroofe, of counsel for the accused, contended that the present form of the indictment remained bad for duplicity in that it sought to establish two distinct offences within the indictment - namely driving under the influence of alcohol, and dangerous act. Furthermore, he said, it contained a latent ambiguity in that it sought to include two quite separate acts within the act charged namely, driving at speed and driving under the influence of alcohol.

[10] He sought to derive support from the reasoning of the Court of Criminal Appeal in Hoessinger (1992) 62 A Crim R 146, in which the Crown relied on three alternative acts as constituting an assault and pleaded an act of "assault" as constituting the dangerous act founding the charge against the accused.

[11] As Gallop J pointed out in the course of his judgment in that case, the indictment alleged a legal conclusion (assault) as an ingredient of the charge under s 154. Angel J considered that the allegation of a legal conclusion (assault) as an ingredient of the charge necessarily gave rise to embarrassment and latent ambiguity. He rhetorically asked, “What assault?" bearing in mind that three possible scenarios arose on the facts. He was also of the view that the indictment did not, in any event, specify conduct said to constitute the relevant dangerous act. Mildren J made the point that it could be argued that the reference to an assault might well have had the effect of including two offences in the one count so that it would be bad for duplicity, but that, on any view, a latent ambiguity arose by virtue of the basis upon which the Crown was seeking to prosecute the charge.

[12] Mr Woodroofe also invited attention to the decision of the Court of Criminal Appeal in Volz v The Queen (1990) 100 FLR 393. He argued that Martin J there emphasised the fact that s 154(4) separately refers to the doing of an act whilst under the influence of an intoxicating substance. The state of being under such an influence is not and cannot be a dangerous act. Evidence of whether a person under the influence of an intoxicating substance at the time of doing the act or making the omission complained of is relevant only to explain the reason why the act or omission took place and as going to proof of that aggravating circumstance. I took Mr Woodroofe to contend that, in the present case, the formulation of the indictment was such that the Crown was, in effect, impermissibly seeking to aver that the accused’s state of intoxication was the relevant dangerous act relied upon, whereas it was simply a state of being. Reference was also made to Baumer v The Queen (1987) 48 NTR 1 at 16-17.

[13] I took Mr Woodroofe to contend that what fell from Martin J in Volz was at odds with the views expressed by Kearney J in the same case and Muirhead AJ in the earlier case of The Queen v Ireland (1987) 49 NTR 10 at 28. The former commented that he considered that, in an appropriate case, driving whilst under the influence of intoxicating liquor, simpliciter, may be charged as a dangerous act. The latter expressed the opinion that there may be cases where the fact that an accused is under the influence of liquor alone turns a legitimate or lawful act into a dangerous act.

The Crown riposte

[14] Mr Lewis argued that there was no validity in the various contentions advanced on behalf of the accused, given the context of the present case.

[15] He emphasised that the central thrust of the indictment in its present form was to aver that the dangerous act was that of driving a motor vehicle at speed in circumstances in which, by reason of intoxication, the accused’s faculties were severely impaired in a manner that necessarily caused serious potential danger to the lives of members of the public. There was, he said, no separate allegation of the offence of driving under the influence of alcohol, as suggested by Mr Woodroofe, nor was there any embarrassment created by requiring a jury to consider that offence, as such, as well as the offence of dangerous act. The indictment simply did not aver an offence of driving under the influence as such. The reference to being under the influence of alcohol was simply a particular that identified the reason for the inability of the accused to properly control the relevant vehicle.

[16] He further argued that the indictment in no sense suggested that being under the influence of alcohol constituted the relevant dangerous act per se. It was not so averred.

[17] Mr Lewis invited attention to the reasoning of Mildren J in Sandby v The Queen (1993) 117 FLR 218 at 234, where he said:

"Section 154 of the Code requires in the first place that the Crown allege and prove an act or omission that causes serious danger, actual or potential, to the life health or safety of the public or to any person, whether or not a member of the public. The act or omission may be constituted by facts which involve a single simple accident, for example pulling the trigger of a loaded gun whilst it was pointed in the general direction of someone; or driving a motor vehicle through a red light across a busy intersection. On the other hand, the act or omission may be more complex and consist of a series of acts so closely connected in time and place as to in reality amount to one continuous act or omission. The most common example of the latter is the driver of a motor vehicle who simultaneously does a number of things each of which, whether alone or in combination, might amount to a single act of driving his vehicle in such a manner that he causes serious danger to the life, health or safety of the public. For example, the act of driving might involve a heavily intoxicated driver proceeding on the wrong side of the road and at a very considerable speed whilst not paying any attention to where he is going. In my opinion an indictment that alleged as the "act" the driving of a motor vehicle in such circumstances would not be duplicitous………"

Conclusion

[18] It was my conclusion that the contentions advanced by Mr Lewis must be upheld.

[19] In my respectful opinion, what fell from Mildren J is entirely in accord with the dicta of Kearney J in Volz and Muirhead AJ in Ireland. If I may be permitted to say so it also has the appeal of sound common sense. There is a world of difference between driving at a substantial speed while sober and driving at such speed whilst one's faculties are seriously compromised as a result of voluntary intoxication, particularly at night.

[20] It seems to me that the fallacy attendant upon the accused’s contentions in this case is that they fundamentally misconceived and misconstrued the specific terms of the revised indictment. That indictment clearly asserted that the dangerous act relied upon was the driving of the relevant motor vehicle at speed in circumstances in which the driver was unable to properly control it by reason of the fact that his faculties were seriously impaired by his state of intoxication. This is the very type of situation envisaged by Mildren J in Sandby and is a far cry from the problem addressed in Hoessinger.

[21] There is no separate assertion of the offence of driving under the influence of an intoxicating substance, nor would there be any requirement for a jury to reflect upon such an offence. The fact that the accused may have been guilty of such an offence is of no relevance for present purposes. As I pointed out in the course of argument, a driver could technically be guilty of such an offence, yet remain well able to drive a motor vehicle in a manner that was not potentially dangerous in the sense envisaged by s 154. It is essentially a matter of degree. The gravamen of the present charge is not driving under the influence. Rather, it is driving a motor vehicle at speed with seriously impaired faculties brought about by the voluntary ingestion of alcohol.

[22] This is the scenario foreshadowed by both Kearney J and Muirhead AJ. Moreover, I see no conflict between what fell from the former and what fell from Martin J in Volz. It is apparent that they were directing their minds to quite separate aspects of the legislation.

[23] I was of the opinion that the accused had failed to demonstrate any duplicity or latent ambiguity in the revised indictment, or that it improperly set out to attempt to erect a state of being, namely intoxication per se, as the dangerous act relied upon to found the charge against the accused.
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