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District Court 7 August 2019

R v Fennell

[2019] NSWDC 397

Traffic & driving
CAUSATION DEFENCE RAISED ON THE EVIDENCE ONUS OF PROOF GO BACK TO 1956 DANGEROUS DRIVING CAUSING DEATH WHERE A STATUTORY DEFENCE RAISED.

Citation: R v Fennell [2019] NSWDC 397
Court: District Court of New South Wales
Date: 7 August 2019
Judge: Haesler SC DCJ

Background

On 7 September 2017 at Oak Flats, south of Wollongong, a 23-year-old driver struck a 78-year-old pedestrian who had stepped from a marked pedestrian refuge onto the roadway near a roundabout. The driver was travelling at an estimated 58 km/h in a 40 km/h zone. The pedestrian died as a result of the impact.

The driver was charged with dangerous driving occasioning death under s 52A of the Crimes Act 1900 (NSW). She pleaded not guilty, and a jury was empanelled on 5 August 2019.

Two issues were agreed as central to the trial: first, whether the prosecution could prove beyond reasonable doubt that the driver was driving in a manner dangerous to another person at the time of the impact; and second, whether the pedestrian's death was attributable to her own actions in stepping into traffic rather than to any dangerous driving, engaging the statutory defence in s 52A(8).

  • Whether the prosecution bore the onus of proving, beyond reasonable doubt, that the dangerous driving caused the impact and death, including negativing the s 52A(8) defence.
  • Alternatively, whether s 52A(8) operates as a true statutory exception, placing the onus on the accused to establish the defence on the balance of probabilities.
  • What written jury directions were appropriate where the s 52A(8) defence was raised on the evidence.

Decision

Defence counsel initially submitted, relying on a passage from Whelan v R [2012] NSWCCA 147, that the prosecution bore the burden of proving beyond reasonable doubt that the dangerous driving caused the death, and that this encompassed disproving the factual basis of the defence. His Honour raised the question of whether this submission engaged a genuinely novel point of law, noting that a court is rarely called upon to venture into entirely uncharted territory.

Overnight research confirmed the submission had no merit. The Court of Criminal Appeal had resolved the point as early as 1956. In R v F (1957) SR (NSW) 543, the Court held that the elements the prosecution must prove are confined to those expressly stated in s 52A(1). The defence in what is now s 52A(8) creates a true exemption or exception, not an additional ingredient of the offence, and it is for the accused to bring themselves within its terms.

The following year in R v Windle (1958) SR (NSW) 110, the Court of Criminal Appeal confirmed that R v F remained good law and addressed how a jury should be directed when the defence arises on the evidence. The standard of proof for the accused is the balance of probabilities, consistent with the common law principle now reflected in s 141(2) of the Evidence Act 1995 (NSW).

His Honour accordingly issued written jury directions reflecting these principles. The jury was directed that the prosecution must prove each element of the offence beyond reasonable doubt, but that if the prosecution case was made out, the jury must then consider whether the accused had proved on the balance of probabilities that the pedestrian's death was not in any way attributable to the manner in which the vehicle was driven.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 52A(8) of the Crimes Act 1900 (NSW), the statutory defence operates as a true exception: the accused bears the onus of establishing it, and the prosecution is not required to negative it as part of its case.
  • The standard of proof on the accused when relying on the s 52A(8) defence is the balance of probabilities, not beyond reasonable doubt, consistent with s 141(2) of the Evidence Act 1995 (NSW).
  • This principle was settled by the NSW Court of Criminal Appeal in R v F (1957) and confirmed in R v Windle (1958). Those decisions remain good law and should be the starting point before any argument is advanced that the causation onus lies with the prosecution.
  • When directing a jury on the s 52A(8) defence, the District Court confirmed that the language of the subsection itself should guide the directions: the accused must show, more likely than not, that the death was not in any way attributable to the speed or manner of driving.
  • The jury's assessment of the dangerous driving element must focus on the quality of the accused's driving, not reason backwards from the fact that a collision occurred and a person died.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A (including s 52A(1) and s 52A(8))
- Evidence Act 1995 (NSW), s 141(2)

Cases
- R v F (1957) SR (NSW) 543
- R v Windle (1958) SR (NSW) 110
- Whelan v R [2012] NSWCCA 147
- 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); R v Stuart Lewry (No 2) [2019] NSWDC 118