Special leave watch: R v Wilson

In a decision quietly released on Tuesday, the High Court refused special leave in Wilson, the case which the Victorian DPP had tried to have heard concurrently with Getachew.

The Court stated:

5. The factual circumstances of this matter differ from those considered in Getachew. In Getachew, the complainant was asleep at the time of penetration, which bore upon the question of consent. By contrast, in this case, there are questions about whether one or more of the complainants was mistaken about the sexual nature of the act of which complaint was made or mistakenly believed that any of the acts of which complaint was made was "for medical or hygienic purposes".
6. Contrary to the submissions of the applicant, we are not persuaded that the directions given by the trial judge about the questions of mistaken belief, the accused's knowledge of the existence of such a mistake or mistakes and the accused's state of mind about consent accorded with what this Court said in Getachew about the proper construction and operation of s 37AA of the Crimes Act. It follows that we are not persuaded that the applicant has sufficient prospects of disturbing the actual orders made by the Court of Appeal in this matter to warrant a grant of special leave. It would therefore not be in the interests of justice in this particular case, or more generally, that there be a grant of special leave to appeal.

The result is unsurprising, as the issue about the operation of s37AA and its interaction with s36 was resolved in Getachew. The most the Crown could really have hoped for would be a technical argument that some of those statements in Getachew were strictly obiter, as the case was resolved on the issue that the directions were unnecessary in light of the failure of the defence to raise an issue of belief in consent. However, that was not enough to carry the day.

King: The High Court and dangerous driving

While a lot of attention was rightly paid yesterday to the significance of the High Court's school chaplain funding case, the court also released its King decision, which has a significant impact on Victorian culpable driving and dangerous driving causing death trials.
The court rejected the Court of Appeal's 5-point test for dangerousness from De Montero v R in favour of classic statements by Barwick CJ in McBride. Ultimately, the court split 3-2 on the disposition of the appeal, due to disagreement over whether the trial judge erred when she attempted to explain the difference between dangerous driving and culpable driving with the following statement:

There are two important differences between the offence of culpable driving causing death, and dangerous driving causing death that reflect the fact that the offence of culpable driving causing death is a more serious offence. First, the Crown must prove beyond reasonable doubt that the accused drove in a way that significantly increased the risk of harming others. There does not have to be a high risk of death or serious injury. That is only a requirement for culpable driving causing death by gross negligence. And secondly, unlike the offence of culpable driving causing death by gross negligence, in relation to the offence of dangerous driving causing death the Crown does not have to satisfy you that the driving is deserving of criminal punishment. The second element will be met as long as you find that the accused drove in a speed or manner that was dangerous to the public.

The view of the majority was that the highlighted passage was not incorrect, but could have confused the jury:

The qualification is that it was unnecessary and possibly confusing for her Honour to direct the jury that, in order to prove the commission of offences against s 319, the Crown did not have to satisfy them that the accused's driving was deserving of criminal punishment.
The common law criterion of criminal negligence as negligence deserving of punishment by the criminal law was instrumental in character. It was designed to impress upon the jury the seriousness of the degree of negligence necessary to support a verdict of guilty. At the same time, as Stephen pointed out, the gravity of the negligence in the particular case was left to the jury to determine "as a matter of degree". The application of that criterion in the Queensland and Western Australian Criminal Codes, effected by the decisions in Scarth and Callaghan, reflected the same instrumental approach to the statutory formula "to use reasonable care and take reasonable precautions". That view was justified by reference to the draftsman's reliance upon the Criminal Code Bill of 1880 and Stephen's intended incorporation in it of the common law criterion. The correctness of the criterion in its application to "gross negligence" under s 318 is not in issue in this appeal although the necessity for, and desirability of, such a direction may be questionable.
In seeking to exclude the common law criterion of criminal negligence from consideration by the jury of verdicts under s 319, the trial judge did not err in law. Properly understood, the direction was correct. Its potential for creating misunderstanding about the seriousness of the offence created by s 319 and the seriousness of the punishment which could be imposed for that offence was plain enough. 

In contrast, the minority was of the view that the highlighted passage was erroneous.

The main point of disagreement of principle between the minority and the majority was the role of negligence in understanding the dangerous driving offence. According to the majority, the Court of Appeal in De Montero erred when it characterised dangerous driving as an offence of criminal negligence that sat below culpable driving. The majority said that criminal negligence is not an element, and that while it might be relevant factually, the jury should be directed to focus on whether the driving was dangerous, and that:

This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place

The minority held that negligence was inseparable from notions of dangerousness and that while it isn't an element, it cannot be used as a point of distinction between the offences. Bell J said that distinguishing between the two offences required an evaluative judgment concerning the degree of departure from the expected standard of driving.

In the course of the decision, all five judges raised significant questions about the utility of a "deserving criminal punishment" direction as a guide to evaluating the degree of negligence necessary to constitute criminal negligence. While the majority held that use of the phrase in the context of culpable driving was "questionable", the minority expressly rejected it.

This will produce considerable difficulty at a trial level for some time. As a majority of the court did not reject the "deserving criminal punishment" direction, Victorian trial judges will continue to be bound by the earlier judgment of De'Zilwa which held that the direction is required. Hopefully an interlocutory appeal can be brought as a matter of urgency to set aside this aspect of De'Zilwa so that trial judges are no longer required to give this criticised direction.