Re Michael Desmond Travers v Mark Wakeham [1991] FCA 109; 28 FCR 425 54 A Crim R 205 (3 April 1991)

FEDERAL COURT OF AUSTRALIA

Re: MICHAEL DESMOND TRAVERS
And: MARK WAKEHAM
No. ACT G40 of 1990
FED No. 178
Vehicles and Traffic - Practice and Procedure
[1991] FCA 109; 28 FCR 425
54 A Crim R 205

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(2), Jenkinson(1) and Wilcox(3) JJ.

CATCHWORDS

Vehicles and Traffic - charges of driving with more than the prescribed concentration of alcohol in blood (PCA) and dangerous driving based on same set of facts - whether conviction for PCA bars conviction for dangerous driving - relevant principles

Practice and Procedure - judicial discretion to prevent oppression or unfairness or abuse of process arising out of the prosecution of two offences of which ultimate facts were similar - no unfairness or oppression present

Motor Traffic (Alcohol and Drugs) Act 1977 (ACT), s.19, 41

Motor Traffic Act 1936 (ACT), s.129(1), 129(1A)

Crimes Act 1900, s.556A(1)

R. v O'Loughlin (1971) 1 SASR 219

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464

Falkner v Barba (1971) VR 332

Samuels v Young (1978) 19 SASR 406

R. v McBride (1962) 2 QB 167

Smith v R. (1976) WAR 97

Wemyss v Hopkins (1875) LR 10 QB 378

Welton v Taneborne (1904) 21 Cox CC 702

HEARING

CANBERRA
3:4:1991

Counsel for the appellant: Mr P. Hastings

Solicitors for the appellant: Director of Public Prosecutions

Counsel for the respondent: Mr I. Bradfield

Solicitors for the respondent: Macphillamy Cummins and Gibson

ORDER

The appeal be allowed.

The orders made by the Supreme Court of the Australian Capital Territory be set aside and in lieu thereof the appeal to that court be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Appeal against the dismissal of an information for dangerou s driving.

2. The respondent was charged in a Magistrates Court of the Australian Capital Territory with commission of the offence specified in s.19 of the Motor Traffic (Alcohol and Drugs) Act 1977 of that Territory. That section provides:
"A person who -

(a) has been the driver of a motor vehicle on a public street or in a
public place;
(b) has, in accordance with the provisions specified in this
Ordinance, been required to provide a sample of his breath for
breath analysis; and
(c) has provided a sample of his breath for breath analysis, is
guilty of an offence if the result of the breath analysis as
recorded or shown by the approved breath analysing
instrument used in the analysis is or exceeds .08."

The respondent pleaded guilty to the offence. At the same time and place he pleaded not guilty to a charge that he had committed the offence specified in sub-section 129(1) of the Motor Traffic Act 1936 of the Territory. Section 129 provides:

"(1) The driver of a motor vehicle shall not drive the motor vehicle
upon a public street recklessly or in a manner dangerous to persons
using the public street.
Penalty: $2,000 or imprisonment for a period not exceeding 12 months, or
both.
(1A) The driver of a motor vehicle shall not drive the motor vehicle
upon a public street negligently.
(2) In considering whether an offence has been committed under this
section, the Court shall have regard to all the circumstances of the
case, including the nature, condition and use of the public street upon
which the offence is alleged to have been committed and to the amount of
traffic which was, or might reasonably have been expected to have been,
upon the public street at that time."

At the same time and place the respondent was charged with an offence of the kind which is specified in s.129(1A). That charge was based on the same evidence as was adduced on the charge of dangerous driving and it was never intended that the respondent be convicted of both dangerous driving and negligent driving. The three informations alleged commission of the offences on the same date. The evidence given on the hearing together of the three charges established that in the early hours of 15 July 1989 a motor vehicle was driven by the respondent on to the northern carriageway of a public street in Canberra and towards the west in that carriageway; that the northern carriageway was a one-way traffic carriageway reserved for vehicles travelling towards the east; that after the vehicle driven by the respondent had travelled west about 300 metres and had caused the drivers of vehicles travelling east in the carriageway to swerve those vehicles out of its way it was stopped by a police car; that a short time later the respondent was required, in accordance with provisions specified in the Motor Traffic (Alcohol and Drugs) Act 1977 to provide a sample of his breath for breath analysis, and he did so; and that the result of the breath analysis as shown by the approved breath analysing instrument used in the analysis was not less than .140 grams of alcohol per 100 millilitres of blood.

3. The respondent, having been convicted and sentenced by the Magistrates Court for the offences of dangerous driving and of contravening s.19 of the Motor Traffic (Alcohol and Drugs) Act 1977, appealed against the conviction for dangerous driving and against both sentences to the Supreme Court of the Australian Capital Territory. The appeal in respect of the conviction and sentence for dangerous driving was allowed and the orders of the Magistrates Court in respect of that charge were set aside and it was ordered that the information be dismissed. Against those orders of the Supreme Court in respect of the dangerous driving charge the informant, the appellant here, has appealed to this Court.

4. The legal doctrine in application of which the learned judge who determined the appeal to the Supreme Court allowed that appeal and dismissed the information for dangerous driving was discussed in R. v O'Loughlin (1971) 1 SASR 219. A most helpful introduction to the questions which arise in this appeal is found in the reasons for judgment of Bray C.J. in that case (1 SASR at 225-226):

"The principle I gather from Wemyss v Hopkins (1875) LR 10 QB 378
is that, irrespective of the legal connection between the charges, and
in particular irrespective of whether or not one charge is an aggravated
form of the other or one of the legal ingredients of the other, a man
shall not be convicted of two different offences in respect of the same
or substantially the same set of facts. But it may often be a difficult
task to ascertain whether or not this will happen. The first charge may
fasten on only one fact or set of facts out of a more complex set of
facts excluding the remaining facts; the second charge may fasten on
another fact or set of facts amongst the excluded facts but not on the
crucial fact or set of facts with which the first charge was concerned.
That is what happened in Ex parte Spencer and Others [1905] HCA 9; (1905) 2 CLR
250, to which I have previously referred and to which I will have to
refer again. The appellants were convicted of having been found in a
gaming house without excuse. They were then charged with having
assisted the keeper of the gaming house. The first charge seized on
their mere presence on the premises. The second related to acts
assisting the keeper.
With this can be contrasted the case of Welton v Taneborne (1908) 2 1
Cox CC 702. There the respondent was convicted of dangerous driving
and fined. One of the elements specifically taken into account by the
magistrate was his speed; see per Lawrence J. at p 708. He was then
charged with driving at an excessive speed. The act of driving at the
speed at which he in fact drove was an act for which he had already been
punished. Hence, he could not be punished again. I agree with the
decision in that case without necessarily endorsing all that was said by
the learned Judges in the majority. The case bears a close resemblance
to the case at bar which, in my opinion, should be decided on the same
principles.
The view I take then is that a man should not be convicted again in
respect of any act or omission for which he has previously been punished
but it is necessary to define with some care the precise act or omission
for which he was previously punished in order to see whether it is the
same act or omission which is in question in the second prosecution.
The recent decision of Falkner v. Barba (1971) VR 332 seems to me to
be in accord with my conclusion and I respectfully concur with the
judgment of Gillard J. in that case. I think that the distinction drawn
by the learned Judge between what he calls the evidentiary facts and the
ultimate facts (see at p 337) is in substance the same distinction I
have sought to draw though, with respect, I prefer my own formulation."

5. In the Supreme Court Higgins J. treated the conviction for contravention of s.19 of the Motor Traffic (Alcohol and Drugs) Act 1977 as having been pronounced before pronouncement of conviction on the charge of dangerous driving and raised with counsel the question whether the latter conviction should have been pronounced after conviction on the other charge. In his reasons for judgment his Honour considered several authorities, including R. v. O'Loughlin, supra. His conclusion was expressed thus:

"...there being a conviction, or a finding of guilt at least, upon the
first of the two charges appealed from, that is, that involving an
offence against section 19 of the Motor Traffic Alcohol and Drugs Act,
that a concurrent conviction for driving in a manner dangerous at the
same time and place, and reliant upon the same driving as is necessary
to be proved for the purposes of a conviction for an offence against
section 19 cannot stand."

6. Before proceeding further it is desirable to point out that there is in the material before this court no completely certain indication as to which of the two convictions imposed by the Magistrates Court was imposed first. It was not until a conviction had been pronounced in respect of one information that any question of abstaining from conviction in respect of the other on the ground applied by Higgins J. in the Supreme Court and discussed by Bray C.J. in the passage cited could arise. The transcript of the proceedings in the Magistrates Court records the closing of the respondent's case by his counsel, Mr. Redpath. The transcript continues thus:

"HIS WORSHIP: Did you wish to say anything?
MR REDPATH: Yes. The defendant has admitted negligent driving as a
result of the facts and the exceed .08. He denies the drive in a manner
dangerous.
HIS WORSHIP: I am aware that a charge of driving in a manner dangerous
is a serious one and there are notes to the section at section 129 of
the Motor Traffic Ordinance/Act that requires me to apply it under
certain things. I have no doubt that on any reasonable hypothesis the
version given by the police officers is more likely to be the accurate
one for any number of reasons; in the mid-winter of Canberra and on
patrol their observation is likely to be the more accurate one, and as
the defendant has pleaded guilty to a breathalyser reading of .14 to
.15, I am bound to say that his recollection of the incident is likely
to be faulty.
It is not only that about it. I cannot convince myself that the
defendant did not know more about Canberra than he says he did. He has
detailed to us the places he has lived and the places in which he has
found employment, all of them in areas where there are a number of
double carriageways, and the suggestion that he did not know that
Canberra Avenue was a double carriageway carries little or no weight
with me.
I am satisfied beyond reasonable doubt having seen the witnesses in the
matter that the defendant did commit an act of dangerous driving, and
that driving was dangerous at least to two persons, and I am satisfied
there were two vehicles there. And the action of driving down what
amounts to a one way street in the contrary direction is in itself
driving a vehicle in a manner dangerous to persons using that public
street. In relation to the matter on information number 5122, the
defendant is convicted.
MR ROBERTSON: There is nothing known, your Worship.
HIS WORSHIP: Now in respect of the negligent driving matter, Mr - - -
MR ROBERTSON: No evidence to offer, your Worship.
HIS WORSHIP: That information is dismissed. Yes, Mr Redpath.
MR REDPATH: Your Worship, I would hand up a further character reference
in relation to this. It indicates the defendant is 29 years old, he is
married and he has held a licence, as your Worship has heard, for a
period of some 10 years, one year in the ACT, nine or so years in Fiji
without blemish. As your Worship has heard, it was his first winter in
Canberra, that he was unfamiliar with the surrounds and it was certainly
dark, cold and that there seems to be little doubt that he was perhaps
unfamiliar with his windows being so iced. He had been with staff of
the Pavilion at the night-club in Kingston and was surprised that he was
over the limit. All I can indicate was these actions were certainly out
of character and were at least partly a result of his lack of
familiarity with the area. Those are the matters I would put to your
Worship in relation to your sentence with respect to these matters.
I can indicate that we may be seeking a special licence depending on the
course your Worship takes. But I would be submitting that it is a
matter, given his previous good record and perhaps some of the
circumstances in relation to this offence, where his licence ought to be
suspended rather than cancelled, and that those circumstances and his
previous good character and good driving ought to be taken into account
when your Worship sets a question of penalty in these matters. Those
are my submissions at this stage.
HIS WORSHIP: I will deal with the matter of the drive in a manner
dangerous first. I understand and agree with the practice in this court
that a conviction under section 129(1) for a drive in a manner
dangerous, carries with it a licence cancellation. And in respect of
that matter, 5122, the licence is cancelled and the defendant is
disqualified from driving or holding a - driving a motor vehicle or
holding a licence in the ACT until this court otherwise orders.
In respect of the offence, 5120, exceeding the prescribed limit, the
reading is such that I would not consider 556A, even though there is a
clear driving record of some 10 years. There will be a fine of $350 in
default 14 days imprisonment. And that licence matter will merge with
the licence being cancelled. There will also be a penalty of $250 in
respect of the drive in a manner dangerous by way of a fine, in default
8 days imprisonment.
That is $600, Mr Redpath. What time to pay is requested, if any?
MR REDPATH: Four months to pay."

7. The reference by the Magistrate to "556A" is plainly a reference to s.556A(1) of the Crimes Act 1900, which provides:

"Where:
(a) a person is charged before a court of the Territory with an
offence against a law of the Territory; and
(b) the court is satisfied that the charge is proved but is of
opinion, having regard to:
(i) the character, antecedents, age, health or mental
condition of the person;
(ii) the extent, if any, to which the offence is of a
trivial nature; or
(iii) the extent, if any, to which the offence was committed
under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict
any punishment other than a nominal punishment, or that it is
expedient to release the person on probation;

the court may dismiss the charge or, without proceeding to conviction, by order, direct that the person be discharged upon her or his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that:

(c) she or he will be of good behaviour for such period, not
exceeding three years, as the court specifies in the order; and
(d) she or he will, during the period so specified, comply with such
conditions (if any) as the court thinks fit to specify in the
order, which conditions may include:
(i) the condition that the offender will, during the period
so specified, be subject to the supervision on
probation under a person, for the time being, appointed
in accordance with the order;
(ii) the condition that the offender will obey all
reasonable directions of a person so appointed; and
(iii) the condition that the offender will comply with an
order made pursuant to section 437."

Section 437 makes provision for orders that an offender make reparation. The reference to "556A" in my opinion compels the conclusion that it was not until after that reference had been made that the Magistrate could be regarded as having pronounced a conviction on the charge, to which the respondent had pleaded guilty, of a contravention of s.19 of the Motor Traffic (Alcohol and Drugs) Act 1977. The inference that he had previously pronounced, or that he should be taken to have previously pronounced, that conviction upon the plea of guilty, is in my opinion displaced by his recognition, by using the words "I would not consider 556A", that abstention from the imposition of a conviction was a possible course open to him.

8. If the conviction and sentence by the Magistrates Court in respect of the dangerous driving charge preceded conviction and sentence in respect of the other charge, no ground existed, in my opinion, for setting aside the first conviction by reference to the principles propounded in O'Loughlin's Case and the other cases to which Higgins J. referred in his reasons for judgment. It can be seen from a reading of the reasons for the judgments in that case that there may be room for difference of opinion as to the juristic foundations of those principles. But in my opinion one of those foundations is undoubted. That is that the object sought to be achieved by the application of the principles is avoidance of curial imposition of a sentence in punishment of conduct which has previously been the subject of curial imposition of a sentence in punishment.

9. If conviction and sentence in respect of contravention of s.19 preceded conviction for dangerous driving, the applicability of the principles expounded in O'Loughlin's Case would have to be considered. In my opinion it could not be said that any act or omission for which the respondent had been punished upon conviction for contravention of s.19 was one in respect of which he might be convicted on the dangerous driving charge. It is true that the driving of a motor vehicle on a public street is a constituent element - and therefore one of "those ultimate facts which form the ingredients in the cause of action", in the language which Dixon J. used in Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464 at 532 and which Gillard J. was surely adopting in Falkner v. Barba (1971) VR 332 at 335 - of both offences. But the manner of driving in relation to a contravention of s.19 is not a constituent element of the offence. (It may in certain circumstances be relevant to prove one of the constituent elements : see Samuels v. Young (1978) 19 SASR 406 at 408.) It might perhaps be taken to be relevant to the determination of the appropriate punishment in certain circumstances. There is nothing to suggest that the Magistrate took it into account in determining the punishment he imposed. The manner of driving in relation to a charge of dangerous driving, on the other hand, is the gravamen of the offence. If it be assumed for the purposes of the present discussion that evidence of the result of the breath analysis upon which the contravention of s.19 was established was admissible on the hearing of the dangerous driving charge as tending to prove what the concentration of alcohol in the respondent's blood was at the time when the driving occurred (an assumption which is facilitated, but not verified, by an evidentiary provision in s.41 of the Motor Traffic (Alcohol and Drugs) Act 1977), it is true that evidence of that concentration of alcohol in the blood is admissible as a circumstance relevant to the issue whether or not the manner of the driving was dangerous to the public : R. v. McBride (1962) 2 QB 167; Smith v. R. (1976) WAR 97; Jones v. R. (1986) 19 A Crim R 236. It is no doubt true also that the presence of that concentration in the respondent's blood might without error have been taken into consideration as tending to increase the penalty to be imposed in respect of the offence of dangerous driving. That latter circumstance would, as I apprehend the reasoning of Bray C.J. in O'Loughlin's Case, have led that learned judge to the conclusion that a conviction of the respondent for dangerous driving could not be pronounced after he had been convicted and sentenced for the contravention of s.19. It is not practicable to quote the whole of the reasons of Bray C.J., who considered and subsumed under a set of principles many authorities. Like Gillard J. in Falkner v. Barba, supra, Bray C.J. paid very careful attention to Wemyss v. Hopkins (1875) LR 10 QB 378. In that case it was held that conviction of a summary offence that the appellant, being driver of a carriage on a highway, by negligence or wilful misbehaviour, to wit, by striking a horse ridden by the respondent, caused hurt and damage to the respondent, was a bar to conviction of another summary offence that the appellant unlawfully assaulted the respondent. The same acts by the appellant were proved in each case. Most attention has been paid in subsequent cases to the reasons for judgment of one of the three judges of the Court of Queen's Bench, Blackburn J. He said (LR 10 QB at 381-382):

"I think the fact that the appellant had been convicted by justices
under one Act of Parliament for what amounted to an assault is a bar to
a conviction under another Act of Parliament for the same assault. The
defence does not arise on a plea of autrefois convict, but on the well-
established rule at common law, that where a person has been convicted
and punished for an offence by a Court of competent jurisdiction,
transit in rem judicatam, that is, the conviction shall be a bar to all
further proceedings for the same offence, and he shall not be punished
again for the same matter; otherwise there might be two different
punishments for the same offence. The only point raised is whether a
defence in a nature of a plea of autrefois convict would extend to a
conviction before two justices whose jurisdiction is created by statute.
I think the fact that the jurisdiction of the justices is created by
statute makes no difference. Where the conviction is by a Court of
competent jurisdiction, it matters not whether the conviction is by a
summary proceeding before justices or by trial before a jury. It is
necessary in the present case to have it proved, just as in the case of
a defence upon the plea of autrefois convict, that on a former occasion
the appellant was charged with the same assault, although not in the
same words, yet in terms the same, and that he was then convicted and
punished. That is the substantial averment in a plea of autrefois
convict. Reg. v. Elrington 1 B and S 688; 31 LJ. (M.C.) 14 and the
other cases cited do not apply, for the provisions of s.28 of 9 Geo. 4,
c.31, which have been re-enacted in 24 and 25 Vict. c. 100, s.45, go
further than the common law, and release a person who has been convicted
and paid the fine; or who, being acquitted, has obtained a certificate
freeing him from further proceedings, civil or criminal, for the same
cause. In this case we must rely upon the common law. It seems that
the same identical matter was brought before a competent tribunal and
the appellant was convicted and punished for it; I do not know whether
serving the punishment makes any difference; but he was convicted and
sentenced for it; and therefore he cannot be tried again for the same
thing before another tribunal, and the justices who convicted the
appellant a second time made a mistake, and the conviction must be
quashed."

Of this case Bray C.J. observed (1 SASR at 224-225):

"I think it must be taken as good law and it follows that it cannot be
correct to say that previous convictions are only a bar to a subsequent
prosecution for another offence when the defendant was in peril on the
first trial of conviction for the subsequent offence. Nor is there the
faintest trace in the judgments of the three learned judges in Wemyss'
Case (1875) LR 10 QB 378 of any suggestion that they were exercising
a discretion rather than applying a principle of law or that the
principle has any different effect in courts of summary jurisdiction
from that which it has in the higher courts, though it does not follow
that the method of applying the principle is necessarily the same in
each case.
It seems to me that what the court did in Wemyss v. Hopkins (1875) LR
10 QB 378 was to look at the facts and the evidence rather than at the
legal nature of the charges and to ask whether it was an attempt to
convict twice for the same act or omission, the same subject matter. It
does not, to my mind, follow at all that the same result would have
occurred if he had been acquitted on the first trial. The maxim relied
on by Lord Blackburn, transit in rem judicatam, means in this context,
to my mind, that the liability of Wemyss to be punished for what he did
on the occasion in question was merged in the punishment inflicted by
the sentence on the first charge."

After commenting on another case Bray C.J. made the observations I first quoted from his reasons for judgment. Those observations included discussion, and approval, of Welton v. Taneborne (1904) 21 Cox CC 702. Gillard J. also referred to that case, without expressing any opinion about the decision, but for the help he derived from some of the reasoning of Jelf, J. who dissented. Gillard J. observed ((1971) VR at 339):

"In Welton v. Taneborne (1908), 99 LT 668, at p 70, Jelf, J., had this
to say: `My view does not conflict with the decision in Wemyss v.
Hopkins, supra. As to that case it is conceded by counsel for the
respondent that to strike a man's horse when he is upon it is to assault
the man, and therefore the assault upon the man is involved in the
offence set forth in the first of the two convictions in that case. If
the assault be the question at issue in the first offence and not merely
one ingredient in that offence and if the man were convicted of that
offence, then if another exactly similar offence were brought up against
him he would say that he had been punished for the assault upon the man
and could not be punished a second time.'
In that case Jelf, J., was dissenting from his brethren whether where on
a charge of dangerous driving a defendant has been convicted, he could
then be charged with driving at a speed exceeding 20 miles an hour,
contrary to the provisions of the Motor Car Act. The majority of the
court held that he could not because the doctrine applied: Jelf, J., did
not think the doctrine applied. Nevertheless, his explanation of
Wemyss's Case is a very useful guide for the determination of this case,
particularly his reference to `one ingredient'."

In O'Loughlin's Case Wells J., whose consideration of the authorities and search for underlying principle were even more extended than those undertaken by Bray C.J., made the following observations in the course of his discussion of the reasoning of Lawrence J., one of the two judges of the King's Bench Division whose opinions prevailed in Welton v. Taneborne, supra, and of Jelf J. (1 SASR at 264-265):

"I find it difficult to accept as a universal principle, what Mr. Perry
asked us to affirm, that once a fact, however insignificant, has been
taken into account for the purposes of reaching a conclusion adverse to
the defendant on one charge, it cannot be proved again as the gravamen
of a subsequent charge. In my view, the question must surely resolve
itself into one of degree if the fact in question cannot be
characterised as one of the basic facts in issue. The answer is, on
principle, clear if, for example, the first charge was aggravated
assault and the second is assault simpliciter. But when the fundamental
issue is whether a complex fact, such as dangerous driving, was
established in the first charge, the question whether the second charge
ought to proceed depends, in my view, upon whether the fact or facts
constituting the gravamen of the second charge lay near the heart of the
first charge, or were merely peripheral or subsidiary. In the former
event, I can see grounds for concurring in Lawrence J.'s conclusion in
Welton's Case (1908) 21 Cox CC 702, but, in the latter event, I should
respectfully differ from him when he says that a later prosecution must
be barred even though the court is of opinion that the facts to be
proved had little significance in the former case. I am of opinion that
it is only subject to some such qualification that the majority view in
Welton's Case (1908) 21 Cox CC 702 can find a safe place in the
structure of historical development and principle discussed in the
earlier pages of this judgment.
Since preparing this judgment in draft, my attention has been drawn, by
a formal communication from counsel, to Falkner v. Barba (1971) VR
332. I respectfully agree with Gillard J.'s reasoning in that case. I
observe that when referring to Welton's Case (1908) 21 Cox CC 702,
Gillard J. emphasised the importance of the distinction drawn by Jelf J.
between `the question at issue' and a fact that is `merely one
ingredient'."

Later Wells J. said (1 SASR at 284-285):

"The difficulty presented by cases such as Welton's Case (1908) 21 Cox
CC 702 springs from the legislature's use (which is perfectly natural
in the circumstances) of the descriptive word `dangerous'. When that
word is included in a charge it inevitably raises questions of degree,
and authorises and requires a court to consider all features of the
defendant's driving to see whether that driving, regarded as a whole,
answers the alleged description. Such an allegation differs
fundamentally from a charge, such as wounding with intent to cause
grievous bodily harm, where the several ingredients can be separated out
so as to produce clear issues - Was the victim wounded by the prisoner?
Was the wounding unlawful? Was the wounding (if done) done with a
specific intent? Was that intent an intent to cause bodily harm that
was grievous? But with a dangerous driving charge, the features of the
driving differ widely from case to case. In one case, proof of a speed
in excess of the statutory maximum may be crucial; in another, the sort
of driving alleged (for instance, rounding a blind corner on the wrong
side of the road) may be such that it would be dangerous at speeds
ranging from fast to quite slow. In others again, the speed may be of
some significance but, at the same time, may be well down the scale of
heinousness when compared with other features of the defendant's
driving. It follows, in my view, that a conviction of dangerous
driving, on a complaint alleging dangerous driving and driving at a
speed above the statutory maximum, may, sometimes produce a situation
akin to the case where a defendant, having been convicted of assault
occasioning actual bodily harm, is subsequently charged with a common
assault based on the same physical attack. The doctrine of merger,
could, we think, be invoked in such circumstances. On the other hand,
if the speed proved on the major charge was not egregious, and no more
could fairly be said of it than that it was consistent with the
dangerous driving clearly established by other proved facts, then we
should ordinarily see no ground, in principle or authority, for not
imposing a penalty on the speeding charge.
Between these two extremes there may occur all manner of cases in which
questions of degree must be resolved in order to arrive at a decision."

I doubt whether the statement of the principle by Gillard J. - "where the ultimate fact alleged by and relied upon by an informant to establish guilt in one information is the same as in a subsequent information of a similar character" the subsequent information is to be dismissed, but not where "the ultimate facts to found guilt in each case were quite different, albeit the evidentiary facts were the same" ((1971) VR at 337) - is in substance the same as the statement by Bray C.J. But the application of the doctrine in either formulation has in my opinion the same result in this case. The ultimate facts to found the contravention of s.19 here were the driving, for as short a space as a few yards, on a public street, and the breath analysis result obtained in accordance with certain procedural requirements. The ultimate facts to found the contravention of s.129(1) were the "manner dangerous to persons using the public street" of any part or parts, or the whole, of the driving by the respondent on that public street. Both the result of the breath analysis and any inferred alcohol content of the respondent's blood at the time when the driving occurred were evidentiary, not ultimate, facts in relation to the latter contravention. If the doctrine be applied in the formulation preferred by Bray C.J., the respondent was not to be - and so far as appears was not - punished for the manner of his driving upon conviction of the contravention of s.19. Nor was he to be - and so far as appears he was not - convicted in respect of the alcohol content disclosed by the result of the breath analysis upon the dangerous driving charge. The dangerousness of the driving was apparent without recourse to any consideration of the respondent's blood alcohol concentration. Nor does it appear that his punishment for dangerous driving reflected any consideration of the alcohol content of his blood.

10. Bray C.J. and Wells J. in O'Loughlin's Case and Gillard J. in Falkner v. Barba discussed the question whether, in addition to the rules of law to be applied for the avoidance of double punishment, there was available a judicial discretion to prevent oppression or unfairness or abuse of process arising out of the prosecution of two offences of which ultimate facts were similar. Wells J. and Gillard J. thought that there was, but Bray C.J. doubted that there was.

11. If there be such a discretion, an occasion for considering its exercise may well have arisen when the parties indicated their consent that the three informations be heard together in the Magistrates Court, and again when the respondent's case was closed in that Court. But in my opinion the circumstances did not justify an exercise of the discretion to prevent punishment in respect of both offences. In addition to the considerations to which I have already referred in discussion of what may be called the rules of law for the avoidance of double punishment, there is a further circumstance which in my opinion should weigh heavily in favour of contemplating without disquiet the prospect of punishing the respondent for both offences. When the car was driven on to the street a contravention of s.19 deserving of punishment was committed. If the respondent's blood alcohol concentration had been so high that his capacity to form an appreciation that he was about to drive the wrong way on a one-way carriageway might fairly have been regarded as grossly impaired, there might have been something to be said for taking the view that condign punishment should be imposed in respect of the offence of dangerous driving, taking into account against the respondent in fixing that punishment the attempt made to drive a car at all when intoxicated to that degree, and that it would be inappropriate to subject the respondent to a distinct punishment in respect of the contravention of s.19. But the evidence in this case gave no ground for thinking that so gross an impairment had occurred. The evidence was consistent with the hypothesis that the respondent had committed two quite different offences at two different times: he deliberately drove on to the street when his recent consumption of alcohol had been of an order likely to result in a breath analysis reading of .140, and he failed to exercise enough care in his driving of the car to avoid proceeding the wrong way for 300 metres. In my opinion punishment in respect of both offences excites no perception of unfairness to, or oppression of, the respondent.

12. I would allow the appeal and set aside the orders made by the Supreme Court of the Australian Capital Territory and make in lieu of those orders an order that the appeal to that court be dismissed.

I have read the judgment of Jenkinson J. I agree with the orders he proposes and his reasons.

I have read in draft form the reasons for judgment of Jenkinson J. For the reasons given by his Honour, I agree that the orders which he proposes should be made.