The Queen v Wayne Michael Galvin [1998] ACTSC 104 (25 September 1998)

Last Updated: 13 October 1999

THE QUEEN v WAYNE MICHAEL GALVIN [1998] SCACT104 (25 September 1998)

Crimes Act 1900 (ACT), s27

Crimes (Amendment) Ordinance (No.2) 1990

Offences Against the Person Act 1861 (UK), s34

Thomas Francis Allen v William Cridge Flood and Walter Taylor [1997] UKHL 17; [1898] AC 1, at 180; considered

Moloney v Wilson [1929] VLR 265 at 268; considered

McNeill v Whitton [1915] HCA 69; (1915) 20 CLR 573; considered

Harris v Sumner (1979) VR 343 at 343-344; considered

Reynolds and Warren v Metropolitan Police, noted in [1982] CrimLR 831; considered

Collidge v Russo [1984] WAR 1 at 2; considered

R v Monaghan and Granger (1870) 11 Cox CC 608; considered

R v Pearce [1967] 1QB 150; considered

No. SCC 111 of 1997

Coram: Higgins J

Supreme Court of the ACT

Date: 25 September 1998

IN THE SUPREME COURT OF THE )

) No. SCC 111 of 1997

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

WAYNE MICHAEL GALVIN

REASONS FOR RULING

Judge Making Ruling: Higgins J

Where Made: Canberra

Date of Ruling: 20 August 1998

Date of Reasons for Ruling: 25 September 1998

1. At the conclusion of the Crown case in this trial, I ruled that the evidence was not capable of supporting the first count on the indictment. I entered a verdict of acquittal on that count. The remaining two counts alleging malicious damage to a motor vehicle and assault occasioning actual bodily harm were left to the jury. Verdicts of guilty were returned on each count.

2. Ms Cronan, for the Crown, requested that I give reasons for that ruling. These are those reasons.

3. Count 1 of the indictment, omitting formal parts, charged that the accused:

"...intentionally and unlawfully did interfere with a conveyance, namely a Holden Commodore motor vehicle in circumstances likely to cause grievous bodily harm."

4. It was the Crown case that, whilst being driven by his estranged wife, Heidi Rita Galvin, the accused, enraged by an altercation they were having, leaned over and undid Ms Galvin's seat belt. He then took hold of the steering wheel and pulled it firmly to the left. The vehicle was then travelling at about 100km/h which was the speed limit applicable to the freeway upon which they were then travelling.

5. As a result of that action of the accused, the vehicle left the roadway and crashed into a rock embankment. The vehicle was very extensively damaged. The accused and Ms Galvin each suffered bodily injury. Ms Galvin's injuries, though significant, were not alleged to amount to grievous bodily harm.

6. The charge was laid pursuant to section 27 of the Crimes Act 1900 (ACT).

7. Section 27 provides:

"(1) In this section:

"conveyance" means a vehicle (including an aircraft) or vessel of a kind used for transporting persons, animals or goods;

"public utility service" means:

a) the supply of electricity, gas or water;

b) the supply of fuel; or

c) the collection and disposal of sewerage and other waste;

as a service to the public;

"transport facility" means a facility provided to permit the transportation of persons, animals or goods, whether by air or over land or water, or provided in connection with such transportation.

1) For the purposes of paragraph (3)(g), an interference shall be taken to include any act or omission which, whether temporarily or permanently, damages, renders inoperative, obstructs, causes to malfunction or puts to an improper purpose.

2) A person who intentionally and unlawfully:

a) chokes, suffocates or strangles another person so as to render that person insensible or unconscious or, by any other means, renders another person insensible or unconscious;

b) administers to, or causes to be taken by, another person any stupefying or overpowering drug or poison or any other injurious substance likely to endanger human life or cause a person grievous bodily harm;

c) uses against another person any offensive weapon likely to endanger human life or cause a person grievous bodily harm;

d) discharges any loaded arms at another person or so as to cause another person reasonable apprehension for his or her safety;

e) causes an explosion or throws, places, sends or otherwise uses any explosive device or any explosive, corrosive or inflammable substance in circumstances likely to endanger human life or cause a person grievous bodily harm;

f) sets a trap or device for the purpose of creating circumstances likely to endanger human life or cause a person (including a trespasser) grievous bodily harm; or

g) interferes with any conveyance or transport facility or any public utility service in circumstances likely to endanger human life or cause a person grievous bodily harm;

is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

1) A person who does an act referred to in subsection (3):

a) intending to commit an indictable offence against this Part punishable by imprisonment for a maximum period exceeding 10 years;

b) intending to prevent or hinder his or her lawful apprehension or detention or that of another person; or

c) intending to prevent or hinder a police officer from lawfully investigating an act or matter which reasonably calls for investigation by the officer;

is guilty of an offence punishable, on conviction, by imprisonment for 15 years."

8. It was not alleged that any of the circumstances referred to in sub-section (4) were present. The contention was that the accused had, if the Crown case was accepted, offended against s27(3)(g).

9. The evidence was clearly capable of supporting the view that the accused acted both intentionally and unlawfully in seizing the steering wheel. It was open to the jury to have concluded that the circumstances in which the accused did so, created a likelihood of grievous bodily harm to the driver as well as to himself.

10. The question raised was whether the acts of the accused could be said to amount to an "interference" with the "conveyance" in question.

11. Section 27 was introduced into the Crimes Act by the Crimes (Amendment) Ordinance (No. 2) 1990.

12. The "Explanatory Statement" states generally:

"The purpose of the Ordinance is to complete the program of revision of criminal offences in the Australian Capital Territory by the insertion of a new Part III [offences against the person], replacing archaic offences and language, removing anomalies and inconsistencies and standardising language. The changes in some cases involve matters of substance and in others are of a technical nature."

13. The Ordinance was made by the Governor-General directly. It was not enacted by the ACT Legislative Assembly. Nothing, however, turns on that.

14. The particular explanation for Section 27 is as follows:

"Section 27 covering acts endangering life or safety is a compendious provision incorporating offences in former sections 33, 33A, 38, 39, 47, 49, 50, 51 and 52..."

15. Those offences, prior to their repeal by this Ordinance were in the following form:

"33. Whosoever-

maliciously by any means wounds or inflicts grievous bodily harm upon any person, or

maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person,

with intent in any such case to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detainer either of himself or any other person,

shall be liable to imprisonment for life.

33A. Any person who maliciously discharges, or in any manner attempts to discharge, any kind of loaded arms with intent to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detention of himself or any other person shall be liable to imprisonment for 14 years.

1. Whosoever unlawfully applies or administers to, or causes to be taken by, or attempts to apply or administer to, or cause to be taken by, any person, any chloroform laudanum or other stupefying or overpowering drug or thing, with intent in any such case to enable himself, or another person, to commit, or with intent to assist another person in committing, an indictable offence, shall be liable to imprisonment for life.

2. Whosoever maliciously administers to, or causes to be administered to, or taken by, any person, any poison or other destructive or noxious thing, so as to endanger the life of such person, or so as to inflict upon such person grievous bodily harm, shall be liable to imprisonment for ten years.

3. Whosoever-

maliciously causes any gunpowder or other explosive substance to explode, or

maliciously sends, or delivers to, or causes to be taken, or received by, any person, any explosive substance, or other dangerous or noxious thing, or

maliciously puts or lays at any place, or casts or throws at, or upon, or otherwise applies to, any person, any corrosive fluid or any destructive or explosive substance,

with intent in any such case to burn maim disfigure disable, or do grievous bodily harm to, any person,

shall, whether bodily injury is effected or not, be liable to imprisonment for life.

49. Whosoever-

places, or causes to be placed, any spring-gun man-trap, or other engine calculated to destroy human life, or inflict grievous bodily harm on any person, or

continues any such engine so placed, or

knowingly permits the same to continue so placed,

with intent in any such case to inflict grievous bodily harm, shall be liable to imprisonment for four years:

Provided that nothing in this section shall extend to any gin, or trap, placed with the intention of destroying vermin, or to any spring-gun, man-trap, or other engine, placed in a dwelling-house for the protection thereof.

50. Whosoever-

maliciously puts, or throws, upon, or across a railway any wood stone or other thing, or

maliciously takes up, removes, or displaces, any rail, sleeper, or other thing belonging to any railway, or

maliciously turns moves, or diverts, or neglects to turn move, or divert, any point, or other machinery belonging to any railway, or

maliciously makes shows hides, or removes, any signal or light, upon, or near to any railway, or

maliciously does, or causes to be done, or neglects to do, or cause to be done any other thing,

with intent in any such case to injure, or endanger the safety of any person travelling, or being on such railway, or in any railway carriage, engine, tender, or truck

shall be liable to imprisonment for life.

51. Whosoever maliciously throws, or causes to fall, or strike at, against, into, or upon, any engine, tender, carriage, or truck, used upon a railway, any wood, stone, or other thing, with intent to injure, or endanger the safety of, any person in or upon such engine, tender, carriage, or truck, or in or upon any other engine, tender, carriage, or truck, of the same train, shall be liable to imprisonment for life.

1. Whosoever, by any unlawful or negligent act or omission, endangers, or causes to be endangered, the safety of any person conveyed, or being in or upon a railway, shall be liable to imprisonment for three years."

16. Section 33 is covered by s27(3)(c) and (d), aided by s27(4).

17. Section 33A was largely repetitive of s33.

18. Section 38 is similarly covered by s27(3)(b), as is s39.

19. Section 47 is covered by s27(3)(e).

20. Section 49 is covered by s27(3)(f).

21. The remaining sections 50, 51 and 52 are replaced by s27(3)(g) aided by the definitions in ss27(1) and (2).

22. There are obvious differences. Sections 50-52 extend only to protect persons travelling on railways.

23. Section 50 was designed to prohibit interferences with tracks or signals so as to endanger persons travelling in a train.

24. Section 51 was designed to prohibit external attacks upon trains where the intent was to endanger or injure persons thereon or therein. It would, for example, have rendered punishable, persons who dropped blocks of masonry onto a train passing beneath an overpass if that had been done with the proscribed intent.

25. Section 52 is in more general terms. It is clearly a lesser offence than is s51. However, it seems to me that it was intended to comprehend the same acts as were proscribed under s51. It is the proscribed intent - "unlawful or negligent act or omission" - which was expressed in less culpable terms than the intent proscribed under s51.

26. It would be strange if that section had been intended to cover acts by passengers, say, distracting or attacking the driver from within the train. Such acts would, of course, have attracted criminal penalties otherwise than under s52.

27. The Crimes Act, before s52A (Culpable driving) was introduced, also contained ss53 and 54. They provided:

1. "Whosoever, being at the time on horseback, or in charge of any carriage or other vehicle, by wanton or furious riding, or driving, or racing, or other misconduct, or by wilful neglect, does or causes to be done to any person any bodily harm, shall be liable to imprisonment for two years.

2. Whosoever by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years."

28. Of course, if there was specific intent to cause injury or death, another offence, ranging from attempted murder to assault, would be appropriate.

29. The present s27 is clearly intended to cover acts of interference with a wider range of services, insofar as s27(3)(g) is concerned, than railways.

30. The term "conveyance" covers any mode of transport, be it a motor or other vehicle, boat, truck, train or aeroplane. It must, however, be "of a kind used for transporting persons, animals or goods".

31. The term "transport facility" would cover in the case of aircraft, for example, that infrastructure equivalent to tracks and signals for a train.

32. The question here is the notion of "interference". The definition in s27(2) is inclusive. It is, therefore, not entirely stipulative, though it may be wider than the literal or ordinary English meaning.

33. The most applicable dictionary meaning (Concise Oxford) is to "meddle" with. Clearly, however, it is the context, both statutory and factual, which will govern the meaning of the term.

34. In the context of commercial activity, Lord James, in Allen v Flood [1997] UKHL 17; [1898] AC 1 at 180, observed:

"Every organiser of a strike, in order to obtain higher wages, "interferes with" the employer carrying on his business; also every member of an employers' federation who persuades his co-employer to lock out his workmen must "interfere with" those workmen."

35. In Moloney v Wilson [1929] VLR 265 cattle had been impounded by the informant. He instructed an employee, aptly named Clancy, to drive them to the pound. The defendant advised Clancy to leave them where they were and persuaded him to do so. Macfarlan J held that to be "interference":

(268) "Interference with animals, which are susceptible of human control or guidance may take place by interfering with the driving power, and that was the case here."

36. However, that decision does seem at variance with McNeill v Whitton [1915] HCA 69; (1915) 20 CLR 573. A wharf labourer had hammered down the lid of a case of goods then under the control of Customs. He was charged with "interference" with the goods. Griffith CJ, Gavan Duffy and Rich JJ rejected the contention, accepted by the Supreme Court of Victoria, that those acts amounted to "interference".

37. Closer to the present context is Harris v Sumner (1979) VR 343. It was then an offence, if "without just cause or excuse" a person "tampers or interferes with" a motor car belonging to another.

38. The defendant had opened and shut a door of the vehicle. He had then rocked it.

39. Menhennitt J overturned the conviction of the defendant. His Honour stated, at 343:

"In the section the two words "tampers" and "interferes" are used in the alternative. As a matter of ordinary language it appears to me that the word "tampers" involves the concepts that a person interferes in some way with an object so as to change it."

40. That, of course, refers to tampering, which may be regarded as a species of interference rather than being of entirely co-extensive meaning. That point was adverted to by his Honour at 344:

"The word "interferes", in my view, does not involve necessarily the same concepts, and it is unnecessary and undesirable for me to attempt to define the word "interferes" in the context."

41. Ms Cronan referred to the case of Reynolds and Warren v Metropolitan Police, noted in [1982] CrimLR 831. It was a Crown Court decision. The appellants had been seen to touch various motor vehicles, including laying hands upon, but not manipulating, door handles. They were convicted in the local Magistrates' Court of "interference" with vehicles contrary to s9 of the Criminal Attempts Act 1981 (UK). Judge Palmer (and two lay justices) set aside the convictions stating that mere touching was not enough. To have opened the doors or even to have applied pressure to the door handles might have sufficed.

42. Clearly, as Ms Cronan conceded, this authority, such as it is, is not of great assistance.

43. In itself, of course, Harris v Sumner (supra) is not of direct assistance. It was, however, applied by Brinsden J in Collidge v Russo [1984] WAR 1.

44. The offence in that latter case was to unlawfully interfere with "the mechanism or parts of any motor vehicle". The defendant had been observed to open a car door and to rummage through the glove box.

45. His Honour noted that Harris v Sumner had focussed on "tampering" rather than "interfering", but observed that it had not been suggested that the defendant in that case would have been guilty of "interference" if "tampering" had not been charged. It was his Honour's view that the purpose of the section then under consideration by him mandated a similar construction as had been given by Menhennitt J to the term "tampering":

(2) "Policy reasons for such a section can be easily seen; a vehicle could be made unroadworthy by the unlawful intervention (to use a neutral word) of some third party concerning the mechanism or parts of a vehicle. It is my belief that the section is aimed at that sort of activity, and I should interpret the word "interferes" so as to require that the object interfered with is changed in some way. So interpreted, opening a car door or even the door of a glove box and rummaging in the glove box would not amount to interfering with the mechanism or parts of a motor vehicle."

46. That passage does not of course imply that to open the door in question was not interfering with the motor vehicle itself. What is an "interference" will depend on that which is specified as the object of the prohibited activity or object.

47. To "interfere" in an activity would reasonably encompass conduct intermeddling in, hindering or obstructing that activity. Thus, if it was an offence to "interfere" with the driver of a motor vehicle, it would be consistent with Moloney v Wilson to regard obstruction of or hindering of the driver of that vehicle in the operation of it as being within such a prohibition.

48. The question is whether the reference to "interferes with any conveyance" in s27(3)(g) is intended to focus on the activity of driving the conveyance or its physical integrity and associated infrastructure. That is, whether the purpose of s27(3)(g) is the protection of the conveyance from external threat, rather than the protection of those conveyed from the culpable driving or operation of the conveyance, whether by the usual operator or by some passenger who, as in this case, has seized control, whether temporarily or otherwise.

49. It is appropriate to look to the purpose of the provisions replaced by s27(3)(g). Both s50 and s51 are directed at external threats endangering train travellers. Section 50, after prescribing a number of specific acts, adds the omnibus phrase:

"maliciously does, or causes to be done, or neglects to do, or cause to be done any other thing..."

50. The ejusdem generis rule of interpretation would require that "any other thing" be read as "any other thing of a like kind". That is, analogous to attacks on the tracks or the signals utilised by trains.

51. Section 51 proscribes attacks upon the train itself.

52. In either case, it is possible to imagine that a passenger might launch from one part of the train an attack upon another part of it so as to come within s51, but it is clear that in any event what is prohibited is an attack against the train itself.

53. Section 52, is a similar omnibus provision to that contained in s50 and referred to above. It is a separate section.

54. Nevertheless, the English equivalent of ss50-52 - s34 of the Offences Against the Person Act 1861 (UK) - has been interpreted as prohibiting the creation of potential hazards to those being conveyed upon a railway, as a result of an alteration in the external environment by, for example, causing or permitting a cart to obstruct the track - see R v Monaghan and Granger (1870) 11 Cox CC 608 - or by throwing or dropping a stone - see R v Bowray (1846) 10 Jur 211. In R v Pearce [1967] 1QB 150, a theft of wires powering signal lights was held to be an offence within s34 of the UK Act. It would, of course, have also been an offence within s50 of the NSW Act if there had been the specific intent proscribed by that section.

55. However, there is no support for the view that ss50-52 would, in the case of railways, have dealt with internal threats to the safe operation of the train. Nor is Moloney v Wilson sufficiently analogous to be of assistance. It is conceivable, of course, that the safe operation of a train could be prejudiced if the driver negligently failed to notice signals or even maliciously disregarded them.

56. Such conduct, if it did not amount to a more serious offence against the person, would be covered by such provisions as the former s53. It would have been unnecessary for it to be an offence against the former s52.

57. If the definition of "interference" in s27(2) is then considered, it seems apparent to me that it is used in relation to the various means of transportation to which it applies, in the sense of a "tampering" with the vehicle itself so as to cause it temporarily or permanently to function otherwise than according to its proper purpose.

58. The use of the vehicle as a weapon against another, as was allegedly done here, is not conduct that comes within s27(3)(g). That conduct is aptly charged as an assault. In this case actual bodily harm was occasioned so that s23 applies. Depending on the intent proved, an attempt to commit a more serious offence might also have been alleged.

59. It may also be added that, though located with property offences, s128(2) of the Crimes Act imposes an enhanced penalty for damaging property "with intent to endanger the life of another person...". That might have been alleged here had the necessary intent been established.

60. Thus, allowing for the expressed intention behind s27 (and s28) of the Crimes Act, and the scope of the sections they replaced, it is apparent that the nature of the protection afforded by them to railways and those conveyed thereon was intended to be extended to other means of transport. The scope and nature of the proscribed acts was not, however, intended to be extended beyond the threat to the safe operation of the vehicle in question posed by some external threat, whether by means of tampering or the application of external force or obstruction. It does not encompass the malicious or negligent act of a person in charge of the "conveyance" who does not in some way alter or attack the vehicle, its progress or dedicated environment so as to endanger it.

61. For those reasons it seems to me that the Crown case did not, as a matter of law, support a conviction for an offence against s27(3)(g).

I certify that this and the twelve (12) preceding pages are a true copy of the Reasons for Ruling herein of his Honour, Justice Higgins

Associate:

Date: 25 September 1998

Counsel for the Crown: S Cronan

Instructing Solicitors: ACT Director of Public Prosecutions

Counsel for the Accused: J Sabharwal

Instructing Solicitors: Deacons Graham & James

Dates of hearing: 19, 20 & 21 August 1998

Date of Reasons for Ruling: 25 September 1998