AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 9 December 2011

Hedges v Regina

[2011] NSWCCA 263

HomicideTraffic & driving
CRIMINAL LAW APPEAL AGAINST CONVICTION DANGEROUS DRIVING OCCASIONING DEATH CRIMINAL APPEAL ACT 1912, S 6(1) LEAVE TO APPEAL AGAINST SENTENCE

Citation: Hedges v Regina [2011] NSWCCA 263
Court: Court of Criminal Appeal, New South Wales
Date: 9 December 2011
Judge(s): Beazley JA (at [1]); James J (at [77]); Fullerton J (at [78])

Background

The appellant was convicted after a judge-alone trial in the District Court of driving in a manner dangerous occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900. The charge arose from a head-on collision on the Pacific Highway at Corindi on 15 May 2009, in which the appellant's southbound vehicle crossed double white centre lines and struck an oncoming vehicle, killing the driver.

On the day of the accident, the appellant had driven a long round trip to attend a funeral in Tenterfield. For roughly 20 minutes before the crash, he had been following another vehicle at close range without attempting to overtake. The collision occurred shortly after the southbound road merged from two lanes into one. The appellant had no memory of overtaking the vehicle in front of him; his last recollection before seeing the deceased's car approaching was of following it in the cruising lane.

The sole issue at trial, and on appeal, was whether the Crown had proved beyond reasonable doubt that the appellant had not fallen asleep at the moment his vehicle first crossed onto the wrong side of the road.

  • Whether the verdict of guilty was unreasonable or could not be supported having regard to the evidence, under s 6(1) of the Criminal Appeal Act 1912
  • Specifically, whether the Crown had excluded, beyond reasonable doubt, the possibility that the appellant was asleep when his vehicle first crossed the centre lines
  • Whether the sentencing judge misapplied the guideline judgment in Regina v Whyte [2002] NSWCCA 343 in the absence of any aggravating features

Decision

Conviction appeal: majority dismisses, Fullerton J dissents

The majority (Beazley JA, James J) dismissed the conviction appeal. Beazley JA held that the only inference reasonably available from the evidence was that the appellant made a conscious and deliberate decision to overtake the vehicle in front. Critical to that finding was eyewitness evidence from the driver behind the appellant, who observed the appellant was "just driving" immediately before the manoeuvre, and evidence from the driver being overtaken, who described the appellant's car moving around him promptly and deliberately after the lanes merged.

Beazley JA accepted that while the appellant's lack of memory and the absence of any apparent motive to overtake were consistent with his account, the objective evidence of the vehicle's controlled movement ruled out any reasonable inference of sleep at the relevant moment. No inference consistent with innocence was reasonably open on the totality of the evidence.

Fullerton J dissents on conviction

Fullerton J would have allowed the conviction appeal. Her Honour drew a careful distinction between what the eyewitnesses actually observed and the conclusions they drew from those observations. She considered that the eyewitness evidence of the vehicle manoeuvring "pretty instantaneously" after the merge was, on a proper analysis, also consistent with the appellant's first surrender to sleep. Given the appellant had made no attempt to overtake over a 20-minute period through multiple overtaking zones, Fullerton J found it reasonably open that the crossing of the centre lines was not a deliberate act.

Sentence appeal: allowed by majority

The majority found the sentencing judge had misapplied the guideline judgment in R v Whyte by treating the guideline as more directive than it properly is. No aggravating features were present in this case. The sentencing discretion was not foreclosed by the guideline. On that basis, the sentence was quashed and a new sentence imposed.

Orders Made

  • Conviction appeal dismissed (by majority, Beazley JA and James J; Fullerton J dissenting)
  • Leave to appeal against sentence granted
  • Sentence quashed
  • New sentence imposed

[The precise terms of the new sentence are not fully reproduced in the text provided.]

Key Takeaways

  • A conviction for dangerous driving occasioning death requires the Crown to exclude beyond reasonable doubt any available inference consistent with innocence, including a genuine possibility that the accused was asleep at the moment of crossing onto the wrong side of the road.
  • The Court of Criminal Appeal confirmed that in assessing whether a verdict is unreasonable under s 6(1) of the Criminal Appeal Act 1912, an appellate court must examine whether any inference consistent with innocence was reasonably open on the whole of the evidence, not merely theoretically possible.
  • Eyewitness evidence describing a driver as "just driving" and performing a controlled overtaking manoeuvre was treated by the majority as sufficient, when combined with other circumstances, to exclude the sleep hypothesis beyond reasonable doubt.
  • Fullerton J's dissent illustrates the importance of distinguishing between what a witness directly observed and the conclusions drawn from that observation, particularly where the key question is one of the defendant's mental state at a specific instant.
  • Where no aggravating features are present, a sentencing court applying the Whyte guideline judgment must not treat it as foreclosing the exercise of independent sentencing discretion; the guideline is a guide, not a mandatory prescription.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases
- Regina v Whyte [2002] NSWCCA 343; 55 NSWLR 252 (guideline judgment on dangerous driving)
- R v Jurisic (1998) 45 NSWLR 209
- Jiminez v R [1992] HCA 14; 173 CLR 572
- M v R [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- R v Hillier [2007] HCA 13; 228 CLR 618
- Fleming v R [1998] HCA 68; 197 CLR 250
- The Queen v Keenan [2009] HCA 1; 83 ALJR 243
- Arun v Regina [2010] NSWCCA 214
- Burrell v R [2009] NSWCCA 193
- Keir v R [2007] NSWCCA 149
- R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Regina v Tadman [2001] NSWCCA 225