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Court of Criminal Appeal 20 December 2012

Williams v R

[2012] NSWCCA 286

Assault & violenceTraffic & driving
CRIMINAL LAW APPEAL AND NEW TRIAL RULE 4 OF CRIMINAL APPEAL RULES PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON PROCEDURE

Citation: Williams v R [2012] NSWCCA 286
Court: NSW Court of Criminal Appeal
Date: 20 December 2012
Judges: Basten JA; Adams J; R A Hulme J

Background

The appellant was convicted in the District Court of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. The offending arose from an incident in which the appellant, affected by alcohol and without a driver's licence, drove erratically before the front-seat passenger grabbed the steering wheel in the seconds before the vehicle struck a pole, killing that passenger and injuring another.

The trial was complicated by the appellant absconding during proceedings. Following a short adjournment for medical assistance, she did not return. The trial continued in her absence, with her counsel remaining in court and continuing to act in her interests.

The appellant sought leave to appeal against both conviction and sentence. On sentence, she had received a total effective term of 7 years 6 months with a non-parole period of 4 years 6 months.

  • Whether Rule 4 of the Criminal Appeal Rules (requiring leave to raise grounds not objected to at trial) applied where the accused had absconded during the trial
  • Whether the trial judge erred in continuing the trial in the appellant's absence
  • Whether the appellant remained the "driver" of the vehicle at the time of impact, given that the deceased passenger had grabbed the steering wheel one or two seconds before the crash
  • Whether the jury directions on the driving element were adequate, including any need for a direction on "conscious and voluntary" acts
  • Whether the passenger's intervention reduced the objective seriousness of the offences for sentencing purposes
  • Whether the accumulation of sentences was unreasonable

Decision

Rule 4 and the absconding accused. Basten JA held that Rule 4 continues to apply even where an accused has voluntarily absented herself from the trial. The rationale of the rule is that a jury verdict should not be challenged on an alleged error that could have been corrected at trial. Where the accused has deprived herself of the opportunity to participate, that rationale remains intact. To the extent that continuing counsel raised matters during the trial, the Rule 4 rationale was satisfied. To the extent he did not, leave was still required. The Court also found no error in the trial judge's decision to proceed in the appellant's absence.

Whether the appellant was "driving" at the time of impact. The Court held, drawing on the High Court's analysis in Jiminez v The Queen (1992) 173 CLR 572, that a person in the driver's seat does not cease to be "the driver" merely because the vehicle is out of control. Basten JA reasoned further that where a passenger's intervention is a natural and foreseeable consequence of the accused's dangerous driving, that intervention does not, as a practical matter, break the causal link between the dangerous driving and the impact. The directions given by the trial judge, which required acquittal if the appellant had no power to control the vehicle in any way at the time of impact, were considered adequate and arguably even generous to the appellant.

Jury direction on conscious and voluntary acts. The Court rejected the complaint that no direction was given on the need for a "conscious and voluntary" act. No issue of lost consciousness or involuntary movement by the appellant arose on the facts. The deceased's act of grabbing the wheel was not the appellant's involuntary act, and no such direction was required.

Sentence. The Court found no error in the sentencing judge's characterisation of the appellant's moral culpability as very high, amounting to an abandonment of responsibility. The sentencing judge had balanced subjective factors, including a difficult personal history, mental health issues, and genuine remorse, against aggravating matters such as a history of unlicensed driving and a prior record. The Court was not persuaded that the total effective sentence exceeded the bounds of the sentencing discretion, and found no merit in the accumulation grounds.

Orders Made

  • Leave to appeal against conviction refused.
  • Leave to appeal against sentence refused.

Key Takeaways

  • Rule 4 of the Criminal Appeal Rules applies even when an accused has voluntarily absconded during trial. An accused who deprives herself of the opportunity to participate cannot later use her own absence as a basis to circumvent the leave requirement on appeal.
  • Where defence counsel continues to appear and act diligently after an accused absconds, the Court of Criminal Appeal will treat the leave question in the same way as in a trial that proceeded with the accused present and represented.
  • A driver does not cease to be "driving" a vehicle because a passenger grabs the steering wheel, particularly where that intervention is a natural and foreseeable consequence of the accused's own dangerous driving.
  • Under the dangerous driving provisions, the causal link between the dangerous driving and the impact is not broken by a passenger's intervention where that intervention was itself prompted by the accused's erratic conduct.
  • Sentencing for dangerous driving occasioning death is not automatically reduced in objective seriousness because a passenger intervened in the final moments. The sentencing court is entitled to assess the full circumstances, including what prompted the intervention.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Rules (NSW), Rule 4
- Crimes Act 1900 (NSW), s 52A(8)
- Bail Act 1978 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Road Transport (General) Act 2005 (NSW)

Cases:
- Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- House v The King [1940] HCA 40; (1936) 55 CLR 499
- R v McHardie & Danielson [1983] 2 NSWLR 733
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- R v Janceski [2005] NSWCCA 288
- Jamal v R [2012] NSWCCA 198
- Duncan v R [2012] NSWCCA 78
- Regina v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
- Bassell v McGuiness (1981) 29 SASR 508
- Police v Thompson [2006] SASC 20; (2006) 45 MVR 37
- R v Jones [1998] SASC 7021; (1998) 72 SASR 281
- Langman v Valentine [1952] 2 All ER 803