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7
Court of Criminal Appeal 15 April 2009

Wong v R

[2009] NSWCCA 101

HomicideTraffic & driving
CRIMINAL LAW EVIDENCE ADMISSION OF NEW EVIDENCE ON APPEAL CRIMINAL LAW TRIAL DIRECTION TO THE JURY

Citation: Wong v R [2009] NSWCCA 101
Court: New South Wales Court of Criminal Appeal
Date: 15 April 2009
Judge(s): Campbell JA, Grove J, Howie J

Background

The appellant was convicted by jury in the District Court of driving in a manner dangerous to another person, resulting in death. The charge arose from a fatal collision at a signalised intersection on Pennant Hills Road, West Pennant Hills, in August 2006, when his southbound BMW struck a vehicle that was turning right across his path. The driver of the other vehicle died at the scene.

The sole issue at trial was whether the appellant had been driving in a dangerous manner. The Crown alleged he had been travelling at excessive speed and had driven through a red light. The trial proceeded on the basis that the jury would only be justified in convicting if it found both elements established.

The appellant appealed on three grounds: that the verdict was not supported by the evidence; that the trial judge failed to put the defence case to the jury; and that a miscarriage of justice arose from the absence of evidence about how the traffic lights at the intersection were programmed to operate.

  • Whether the verdict was unreasonable or unsupported by the evidence, including in light of new evidence sought to be admitted on appeal
  • Whether new evidence about traffic light sequencing was likely to have led to an acquittal, or a significant possibility of one
  • Whether the trial judge was required to put the defence case to the jury, and whether section 161 of the Criminal Procedure Act 1986 altered or qualified that obligation
  • Whether the Court should grant leave under Rule 4 of the Criminal Appeal Rules to raise a ground based on the summing-up, where no objection had been taken at trial
  • Whether a retrial was appropriate given that the appellant had served approximately one quarter of his total head sentence and less than half of his non-parole period

Decision

New evidence and the verdict ground: The Court considered new evidence relating to the traffic light sequencing at the intersection. While that evidence was relevant, the Court ultimately did not uphold the first and third grounds of appeal. The verdict ground and the new evidence ground therefore did not, on their own, provide a basis to quash the conviction.

Failure to put the defence case: The Court upheld the second ground of appeal. Campbell JA found that the trial judge had failed entirely to put the accused's case to the jury and to apply the law to that case. This was treated as a fundamental departure from the essential requirements of a fair trial, going to the root of the proceedings.

Section 161 and the Rule 4 question: Campbell JA distinguished between a trial judge's discretion under section 161 of the Criminal Procedure Act 1986 to summarise evidence, and the separate, non-discretionary obligation to put the defence case to the jury. The existence of section 161 did not diminish the latter obligation. Because the failure to put the defence case was so fundamental, leave was granted under Rule 4 to raise the ground despite the absence of any objection at trial.

Retrial: The Court declined to simply quash the conviction without ordering a new trial. Because the first and third grounds had not been upheld, and given that the appellant had served only a quarter of his head sentence and less than half of his minimum period in custody, it remained appropriate for the matter to be retried.

Orders Made

  • The conviction of the appellant on the charge of driving in a manner dangerous causing death is quashed.
  • There be a new trial.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge's obligation to put the accused's defence case to the jury is distinct from the discretion to summarise evidence under section 161 of the Criminal Procedure Act 1986. Section 161 does not displace the former obligation.
  • A complete failure to put the defence case to the jury constitutes such a fundamental departure from the requirements of a fair trial that it goes to the root of the proceedings, justifying quashing of the conviction.
  • Under Rule 4 of the Criminal Appeal Rules, leave may be granted to raise a ground based on the summing-up even where no objection was taken at trial, provided the failure is sufficiently serious. A total omission of the defence case met that threshold here.
  • Quashing a conviction does not automatically lead to a permanent acquittal. Where the grounds of appeal relating to the sufficiency of evidence were not upheld, a retrial was ordered, taking into account the proportion of the sentence already served.
  • A separate conviction and penalty relating to a different charge, which was not the subject of any appeal, was unaffected by the orders made.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW), Rule 4
- Criminal Procedure Act 1986 (NSW), s 161
- Criminal Procedure Legislation (Amendment) Act 1990 (NSW)

Cases:
- Alford v Magee (1952) 85 CLR 437
- Cleland v The Queen (1982) 151 CLR 1
- Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467
- Kim Williams v R [1999] NSWCCA 9; (1999) 104 A Crim R 260
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- R v Katsidis; Ex parte AG (Qld) [2005] QCA 229
- R v Abbas [2006] NSWCCA 331
- R v Bikic [2002] NSWCCA 227
- R v Meher [2004] NSWCCA 355
- R v Zorad (1990) 19 NSWLR 91
- Ratten v R (1974) 131 CLR 510
- RPS v R [2000] HCA 3; (2000) 199 CLR 620
- Ward v R (1996) 88 A Crim R 159