MICHAEL WINSTON SANBY v R No. CA8 of 1992 Number of pages - 8 Appeal - Criminal Law and Procedure - Statutes

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MICHAEL WINSTON SANBY v R      
No. CA8 of 1992
Number of pages - 8
Appeal - Criminal Law and Procedure - Statutes
COURT
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
MARTIN(1) CJ, ANGEL(2) AND MILDREN(2) JJ

CWDS
  Appeal - General - Cross-appeal against conviction and sentence - Jury
verdict considered unsafe and unsatisfactory

  Criminal Law and Procedure - General principles - Unsafe and unsatisfactory
verdict - Approach required by the court - Function of appellate court as
opposed to a jury

  Volz v The Queen (1990) 100 FLR 393, applied.
  Chamberlain v The Queen (No. 2) (1984) 153 CLR 521, followed.
  Chidiac v The Queen (1990-91) 171 CLR 432, followed.
  Morris v The Queen (1987) 163 CLR 454, followed.
  Rostron v The Queen (1991) 1 NTLR 191, followed.
  Shepherd v The Queen (1990) 170 CLR 573, followed.
  Baumer v The Queen (1988) 166 CLR 51, considered.
  Doney v The Queen (1990) 171 CLR 207, considered.

  Criminal Law and Procedure - Practice and procedure - Duty of prosecution -
Addresses

  Criminal Code 1988 (NT), s31(2)
  Frederick John McCullough (1982) 6 A Crim R 274, followed.
  Charles Veela (1990) 47 A Crim R 119, considered.
  Roulston (1976) 2 NZLR 644, considered.

  Statutes - Interpretation - Requirements of - "Serious" - "Clearly" -
"Ordinary person similarly circumstanced"

  Criminal Code 1988 (NT),s154
  Hughes v Lord Advocate (1963) AC 837, applied.
  Attorney-General v Wurrabadlumba (1990) 74 NTR 5, considered.

  Statutes - Operation and effect of - Potential for duplicity in franming of
indictment - Distinguish between connected, as against separate, acts or
omissions

  Criminal Code 1988 (NT),s154
  Hoessinger v R (unreported, Court of Criminal Appeal (NT) 24/4/92), applied,
distinguished.
  Clarke and Johnstone (1986) VR 643, considered.
  Eades (1991) 57 A Crim R 151, considered.

HRNG
DARWIN, 24-27 May 1993
#DATE 19:10:1993

  Counsel for the Appellant:      D Hore-lacey and R Coates

  Solicitors for the Appellant:   NT Legal Aid Commission

  Counsel for the Respondent:     L Flanagan QC and T Wakefield

  Solicitors for the Respondent:  DPP

ORDER
  Appeal allowed.

JUDGE1
MARTIN CJ  The background to this appeal, and the evidence bearing upon it,
are set out in the reasons of Mildren J and need not be repeated.

2.  I am in general agreement with his Honour's observations and conclusions,
both as to the facts and the law, and agree that the conviction should be
quashed.  However, there are some issues about which I would like to add some
comments.

3.  This Court should not have been troubled with the ground of appeal
relating to the failure of the learned trial Judge to discharge the jury after
the prosecutor's opening.  The language about which complaint was raised was
only applicable to the manslaughter charges and the accused was acquitted on
all of those counts.  Those words had no bearing upon the charge under s154 of
the Code since no subjective mental element is required to be shown in respect
of it.  Nevertheless, I feel constrained to say that given the codification of
the law relating to manslaughter, it is no longer necessary to engage upon an
attempt to define criminal negligence and the introduction of qualifying
adjectives.  The words of the Code may not be particularly stimulating, but
they avoid any need to resort to emotive words and phrases.  Adherence to
assisting the jury by reference to what the law is rather than what it once
was, is more likely to avoid the attacks made upon the prosecutor at such
length in this case.  It is not necessary to decide whether his Honour should
have discharged the jury at the close of the opening of the Director of Public
Prosecutions, but his Honour's decision was made in the exercise of a
discretion which I would not be prepared to overrule.

4.  Again, although it means nothing in the result, it is important to
reiterate that counsel are under a positive obligation to the Courts to assist
them in the fair administration of justice and are not to knowingly deceive or
mislead them.  Although I do not find that there was any intentional
misleading of the Court, including the jury, by the prosecutor in this case,
his sometimes failure to place evidence in its context, or accurately reflect
the evidence in the course of cross-examination and address, could give rise
to an impression that unfair advantage was being sought.  This is especially
so when attention was being given to important aspects of the Crown case such
as the conversation between the appellant and the police regarding his failure
to be vigilant, and the period prior to which the appellant had not heated the
air in his balloon immediately prior to the collision.  A great deal of time
was taken up at trial and before this Court which could have been avoided if
these recurring issues had not arisen.

5.  I have made an independent assessment of the sufficiency and quality of
the evidence.  In doing so I have not had to concern myself, as did the jury,
with issues relating to the manslaughter charges and have been able, instead,
to concentrate on the elements of the offence for which the appellant was
convicted.  In a case arising from a fatal event, a fortiori, a calamitous
one, great care must be taken to ensure that the workings of the minds of the
members of the jury do not initially focus on the result, and then work
backwards in a search for an act or omission giving rise to the result.  The
provisions of s154 of the Code distinctly separate the two happenings.
Indeed, they need not co-exist. The offence may be committed without anyone
suffering grievous harm or death (for example, firing a rifle across a
suburban parkland or busy thoroughfare).  It is only if all of the elements
going to make up the offence are found that the circumstances of aggravation,
if they are alleged, fall to be considered.  In that regard the heavily
qualified language of s154(1) must be carefully observed and rigorously
applied. The danger must be serious; the circumstances in which the ordinary
person is to be placed must be similar to those of the accused at the relevant
time; the ordinary person must be found to have clearly foreseen the danger.
All that beyond reasonable doubt.  To approach the question of displacing the
presumption of innocence attendant upon any accused person in a manner which
does not give full effect to the words constituting the offence is to invite
injustice.  That is so whether the conduct alleged to have caused the serious
danger might be regarded as comparatively trivial or most serious (I do not
agree that it is only when potential danger is alleged to have been caused can
comparatively trivial conduct constitute an element of the offence).

6.  There are two further essential elements which must be made out to
constitute the offence.  The act or omission complained of must be shown to
have been done or made by the accused, and to have caused the serious danger.
The first of these requirements might not normally present any difficulty, but
the second can give rise to difficult questions of fact, to be decided by the
application of commonsense to the evidence, and applying the criminal standard
of proof.

7.  Here, the first, and perhaps most important question before the jury, was
whether they could be satisfied beyond reasonable doubt that the collision
between the basket of the appellant's balloon and the envelope of the
ill-fated balloon would not have taken place if the appellant had controlled
and manoeuvred his balloon in the manner suggested by the Crown he ought to
have done.  The appellant asserted that it was quite normal for a balloon to
fly under another at a vertical distance of three hundred feet.  That
proposition was not contradicted by the Crown. It stands as a simple
proposition about which opportunity was available for contradictory or
qualifying evidence to be brought.  There is no apparent reason why it should
not have been accepted as a justification for the appellant's inaction.  It
should at least have raised a reasonable doubt in the minds of the jury as to
whether the appellant had by any act or omission caused a serious danger.
Furthermore, in the light of that evidence, it was not open to the jury to be
satisfied beyond reasonable doubt that an ordinary person similarly
circumstanced to the appellant would have clearly foreseen the danger of
collision.

8.  Balloons of the type being flown by the appellant are capable of being
rotated by permitting the escape of hot air through vents in the balloon
designed for that purpose.  A very experienced balloonist, Mr Kavenagh,
witness for the Crown, said that he would use such a method for keeping his
eye on other balloons flying in his vicinity, and it may well be that had the
appellant adopted that technique he could have kept the ill-fated balloon in
view as it was passing underneath him.  In that sense it may be thought that
he failed to keep a proper lookout, but whether the ordinary person similarly
circumstanced would have performed that manoeuvre is at least debateable,
given that by releasing of air from the balloon for that purpose it would
cause it to descend, thus bringing it into closer proximity with the balloon
passing underneath.

9.  The jury ought to have had a reasonable doubt as to the appellant's guilt
arising from the significant volume of evidence that the ill-fated balloon
rose suddenly and swiftly underneath that being flown by the appellant.  The
fact that people in the situation of those in the appellant's balloon may have
been mistaken as to whether the ill-fated balloon was rising or the
appellant's descending, or each moving towards the other, does not rule out
the possibility that their observations were reliable.  The evidence of other
eye witnesses, who were able to make a better judgment by reference to their
view of the horizon, and of Professor Joubert ought to have reinforced that
possibility.  There is no evidence that had the ill fated balloon performed in
the manner described the appellant could have avoided the danger by having
done or by then doing any of the things the Crown alleged he should have done.
There is nothing in the appellant's conduct after the event nor what he told
others of it which unequivocally points to his guilt or consciousness of
guilt.

10.  The evidence was insufficient to support the verdict.  Accordingly, I
would direct judgment and verdict of acquittal to be entered.

JUDGE2
ANGEL AND MILDREN JJ  The Crown appeal in this matter has been discontinued.
There remains for decision Michael Winston Sanby's appeal.  It is from a
conviction in respect of a count that on 13 August 1989 at or near Alice
Springs in the Northern Territory of Australia, being the pilot of hot air
balloon call sign VH-WMS he did control and manoeuvre the said balloon
without:
    1. keeping any or any proper lookout whilst flying in
    company with other balloons;
    2. giving way to hot air balloon call sign VH-NMS which was
    below him at the time piloted by Antony James Fraser;
    3. giving any radio warning to the pilot of hot air balloon
    VH-NMS who was in the near vicinity adequate to ensure
    avoidance of a collision;
    4. having balloon VH-WMS equipped with the necessary
    instrumentation to ensure the safety of his passengers or
    the safety of other balloonists and their passengers;
    5. ensuring balloon VH-WMS was in an air worthy condition;
    6. the passenger basket of balloon VH-WMS being in a proper
    state of repair;
    thereby causing serious danger to the lives, health or
    safety of Antony Fraser and the 12 passengers in balloon
    VH-NMS, in circumstances where an ordinary person similarly
    'circumstanced' would clearly have foreseen such danger and
    would not have so controlled or manoeuvred the balloon in
    such circumstances, contrary to s154(1) of the Criminal
    Code.

2.  Section 154(1) of the Criminal Code provides:
    "Any person who does or makes any act or omission that
    causes serious danger, actual or potential, to the lives,
    health or safety of the public or to any person (whether or
    not a member of the public) in circumstances where an
    ordinary person similarly circumstanced would have clearly
    foreseen such danger and not have done or made that act or
    omission is guilty of a crime and is liable to imprisonment
    for 5 years."

3.  Section 154 of the Criminal Code is very broad in scope and covers all
manner of conduct:  Baumer v The Queen (1988) 166 CLR 51 at 55,
Attorney-General v Wurrabadlumba (1990) 74 NTR 5.  Whilst the act or omission
giving rise to the danger needs to be voluntary, the danger created thereby
need not be an intended consequence, nor a consequence actually foreseen by
the perpetrator of the particular act or omission in question.  The section
creates an offence regardless of consequences beyond the danger, actual or
potential itself.  The section relates to voluntary conduct constituted by
acts and/or omissions which objectively cause serious actual or potential
danger irrespective of any consequential harm.  The deliberate use of the
words "serious" and "clearly" is significant.  The offence created by s154 is
a lesser crime than manslaughter which, under the Code, relevantly requires
actual foresight of the possibility of death.  Section 154 addresses the
question of foresight in terms of an ordinary person in similar circumstances
to the accused clearly foreseeing a serious danger being caused by the
accused's voluntary acts and or omissions.  I am of the opinion the use of
"serious" and "clearly" is intended to permit juries to say in any given case
where the line should be drawn between dangers which may be characterised as
ordinary incidents of modern life, and dangers caused by plainly blameworthy
conduct.  In my opinion, s154 is not directed at conduct which causes dangers
which are ordinarily accepted as incidents of modern life, or, conduct which,
even if giving rise to civil liability in negligence, would not widely or
generally be regarded as "criminal".  The use of "serious" and "clearly", in
my view, requires the jury to say in any given case on which side of the line
between an acceptable or an unacceptable risk of danger to others, the case
before them falls.  Questions of foreseeability are inevitably addressed in
hindsight and as Lord Pearce said in a different context in Hughes v Lord
Advocate (1963) AC 837 at 857:
    "... to demand too great precision in the test of
    foreseeability would be unfair ... since the facets of
    misadventure are innumerable ..."

4.  The jury's task in approaching these matters is a practical and common
sense one.  The terms of s154 enable due allowance to be made for errors of
judgment, momentary lapses of attention and the like which no reasonable
person would label "criminal".

5.  Upon a consideration of the evidence I have reached the conclusion that
the jury's verdict in the present case is unsafe and unsatisfactory.

6.  In the course of the learned trial Judge's summing up to the jury, as is
customary in this jurisdiction, a written aide-memoir was given to the jury.
In relation to the count on which the appellant was convicted it said as
follows:
    "Before you can find the accused "guilty" on Count 14, you
    must be satisfied beyond reasonable doubt of ALL FIVE of the
    following elements of the offence:
    1. That on 13 August 1989
    2. Michael Winston Sanby as pilot of hot air balloon call
    sign VH-WMS
    3. did so control and manoeuvre that balloon that it
    collided with hot air balloon call sign VH-NMS, without any
    one or more of the following:
    (a) keeping any lookout, or any proper lookout, whilst
    flying in company with other balloons;
    (b) giving way to hot air balloon call sign VH-NMS which was
    below him at the time piloted by Antony James Fraser;
    (c) giving any radio warning to Fraser who was in the near
    vicinity, adequate to ensure avoidance of a collision;
    (d) having balloon VH-WMS equipped with the necessary
    instrumentation to ensure the safety of his passengers or
    the safety of other balloonists and their passengers;
    (e) the passenger basket of balloon VH-WMS being in a proper
    state of repair
    4. thereby causing serious danger to the lives of Fraser and
    the 12 passengers in balloon VH-NMS
    5. in circumstances where a hot air balloon pilot of
    ordinary skill, in similarly(sic) circumstances to those of
    the accused, -
    (a) would clearly have foreseen that danger; and
    (b) would not have controlled or manoeuvred the balloon
    VH-WMS in the way or ways you find the accused did.
    If you are not satisfied beyond reasonable doubt about ALL
    FIVE of the above elements, it is your duty to find the
    accused 'not guilty' on Count 14, and you go no further.
    If you are satisfied beyond reasonable doubt about ALL FIVE
    of the above elements, it is your duty to find the accused
    'guilty' of the offence under s154(1) of the Code."

7.  In relation to item 5 enumerated above, his Honour said in the course of
his summing up to the jury:
    "Now when you come to 5 you'll see that no longer on this
    charge is there any question of your trying to examine what
    his actual foresight was on that occasion.  You're spared
    that, you don't have to undertake that.  What you then
    consider is, if you have got yourself satisfied beyond
    reasonable doubt that because of his culpable manoeuvring of
    his balloon he caused this serious danger to these people in
    the balloon below, then you consider in item 5 what a hot
    air balloon pilot of ordinary skill, in similar
    circumstances, would have done.  And you have to be
    satisfied there, beyond a reasonable doubt, that such a hot
    air balloon pilot, in those circumstances, would have
    foreseen that danger.  That is to say - I just give this to
    you as a possibility, not because it's a view which you
    should take, because it's entirely a matter for you - but if
    you were of the opinion, if you were satisfied beyond
    reasonable doubt that he hadn't kept a proper look-out and
    for that reason he'd caused serious danger to the lives of
    Fraser and the other people below, then when you come to
    element number 5, you place then an ordinary man, an
    ordinary hot air balloon pilot in his shoes, in similar
    circumstances, and you say:  'Would he have clearly foreseen
    that serious danger to the lives of the people by not
    keeping a proper look-out?'  And:  'Am I satisfied that he
    would clearly have foreseen it?' And:  'Am I satisfied that
    he would not have controlled or manoeuvred the balloon in
    that way?'  That is, by not keeping a serious look-out.
    If you are satisfied beyond reasonable doubt that your
    ordinary hot air balloon pilot would have clearly foreseen
    the danger and would not have behaved in that way, then that
    would be the last of the elements on which you would have
    been satisfied beyond reasonable doubt.  Your duty then
    would be to find him guilty of count 14.  If you are left
    with a reasonable doubt about any one of those elements, 1
    to 5, your duty equally is to find him not guilty ..."

8.  His Honour had also to direct the jury on the counts of  manslaughter - of
which the appellant was acquitted - and in doing so he referred to the
question of actual foresight of the possible deaths of the occupants of the
ill-fated balloon.  In the course of his summing-up, which must be read as a
whole, his Honour said after a short adjournment:
    "Ladies and gentlemen of the jury, I continue to sum up to
    you.  First of all I correct one thing I said to you
    earlier, I said to you that the Crown case was that the
    accused man failed altogether to keep a look-out and that
    was why the Crown relied heavily on the evidence of Kennie
    Giblin and the young girl.  Well, it's true that's one way
    the Crown puts its case, that he did fail altogether to keep
    a look-out.  But the other way is that if he did see the ill
    fated balloon, that he saw it in circumstances which were so
    late that it was impossible for him to avoid a collision,
    when in fact he should have seen it earlier.  So it puts it
    in two ways:  (1) That he altogether failed to look and the
    other one was that he saw it too late, because he was
    keeping an inadequate look-out.
    Right.  Now I'll deal more briefly with other matters in the
    case, because as must already have been apparent to you,
    ladies and gentlemen of the jury, the view which seems to me
    to be quite overwhelming in this case, that this is a case
    of proper look-out, whether the Crown have proved this man
    kept a proper look-out or not, and everything really seems
    to be subservient to that."

9.  Evidence was led by the Crown at the trial of a conversation between the
appellant and Detective Senior Constable Martin James Voyex at Perth Airport
on 16 August 1990.  The conversation included the following exchange:
    "Q: Do you think you are negligent in any way.  I mean in
    relation to the accident?
    A: Well, like I said to my lawyer, all they can get me for
    is vigilant lookout.  The basket is so big and there was so
    many people around.
    Q: How many people were in your basket that day?
    A: Twelve.
    Q: So you can be found responsible for the deaths for not
    keeping a vigilant lookout?
    A: Yes, but it's all a conspiracy.  They want blood."

10.  The prosecution relied on this conversation as constituting an admission
of guilt.

11.  There can be no question but that this evidence and the learned trial
Judge's comment about look-out focussed the jury's attention to the question
of foresight and I can not help thinking that the jury's task of drawing the
line previously referred to was lost or obscured.  A stark contrast was drawn
between actual foresight of the appellant for the purposes of the manslaughter
counts and foresight of serious danger caused by the appellant's conduct on
the part of an ordinary person in similar circumstances to the appellant for
the purposes of s154. Nevertheless, I think the appellant's statement at Perth
Airport and his Honour's statement:  "... this is a case of proper look-out,
whether this man kept a proper look-out or not, and everything really seems to
be subservient to that." - were both capable, without further explanation, of
misleading the jury into thinking a failure to see the ill-fated balloon and
to avoid the collision, when coupled with the catastrophic consequences of the
collision were sufficient, without more, to constitute a breach of s154 of the
Code.

12.  Given the various conflicting eye-witness accounts as to precisely how
the balloons collided, and given the evidence of the occupants of the
appellant's balloon as to when and in what circumstances the ill-fated balloon
was first seen in relatively close proximity to the appellant's balloon, and
given the lack of evidence as to when the risk of collision ought first to
have become apparent to the appellant and what the appellant might then have
done to avoid a collision, and given the room for confusion in the mind of the
jury as to the significance of the appellant's conversation about 'negligence'
at Perth Airport and the absence of - and need for - an explanation as to the
demarcation between acceptable and unacceptable dangers, I consider the jury
ought to have entertained a reasonable doubt as to the appellant's guilt and
that the verdict of guilty in respect of Count 14 is unsafe and
unsatisfactory.

13.  In these circumstances is it unnecessary to refer to other grounds of
appeal argued before us.

14.  I make no comment concerning the conduct of the prosecution and defence
cases at the trial or on the appeal.

15.  I would allow the appeal, quash the conviction and direct that a verdict
of not guilty be entered.