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Court of Criminal Appeal 14 November 2013

R v RMC

[2013] NSWCCA 285

Homicide
CRIMINAL LAW CROWN APPEAL DIRECTED ACQUITTAL

Citation: R v RMC [2013] NSWCCA 285
Court: Court of Criminal Appeal, NSW
Date: 14 November 2013
Judge(s): Latham J, R A Hulme J, Barr AJ

Background

The respondent faced a single count of dangerous driving causing death following a late-night collision in August 2011. He was driving on a rural road near Clarence Town when his car failed to negotiate a bend, struck a bridge, broke through a wooden railing, and fell into the Williams River. His front-seat passenger died as a result. In a subsequent police interview, the respondent attributed the crash to heavy fog, restricted visibility, and his unfamiliarity with the road.

The matter proceeded to a jury trial in the District Court. By the third day, while the Crown was still presenting its case, the trial judge (Maiden DCJ) intervened extensively, expressed strong concerns about police signage investigations and the conduct of the crash investigation officer, and ultimately directed the jury to return a verdict of not guilty.

The Crown appealed that directed acquittal to the Court of Criminal Appeal pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW).

  • Whether the trial judge applied the correct legal principles when directing the jury to acquit, including whether he assessed the Crown case at its highest.
  • Whether the directed acquittal was made prematurely, before the Crown had concluded its case.
  • Whether the Court of Criminal Appeal should exercise its residual discretion to quash the acquittal and order a new trial.
  • Whether the matter should be remitted to a different judge for retrial.

Decision

The Court of Criminal Appeal held that serious errors attended the trial judge's decision to direct an acquittal. The judge failed to apply the correct legal test, which requires a court to evaluate whether, taking the Crown case at its highest, a properly instructed jury could reasonably convict. Instead, the judge intervened midway through the Crown case, before the Crown's key witness had completed his evidence, and before the interview of the respondent had been tendered.

The Court found that the judge's concerns about the absence of road signs, the crash investigator's compliance with the expert witness code of conduct, and the road authority's potential responsibility were not proper bases for withdrawing the case from the jury at that stage. Several of those concerns were described as unwarranted and unfair, including criticism directed at the investigating officer. The judge's approach effectively assessed the Crown case at its weakest rather than its highest.

On the residual discretion question, R A Hulme J was satisfied that the prosecution had a viable case. The respondent's own account, which placed him driving at 50 to 60 km/h while his forward vision was reduced to approximately two car-lengths by dense fog, was capable of supporting a finding of objectively dangerous driving. The absence of a bend warning sign was a matter for the jury to weigh, not a reason to withdraw the case entirely.

Given the strongly expressed views the trial judge had formed during the proceeding, the Court concluded that the appearance of justice required the retrial to take place before a different judge. Both the Crown and the respondent's counsel accepted this course.

Orders Made

  • The acquittal of the respondent was quashed.
  • The respondent was ordered to be retried in the District Court before a different judge.

Key Takeaways

  • A directed acquittal requires a trial judge to take the Crown case at its highest: the test is whether a properly instructed jury could reasonably convict on the available evidence and permissible inferences, not whether a conviction appears likely.
  • Intervening to direct an acquittal before the Crown has closed its case is a significant procedural error, particularly where key evidence including a recorded interview has not yet been placed before the jury.
  • The Court of Criminal Appeal confirmed that concerns about road authority signage obligations, however legitimate in other contexts, do not constitute a basis for withdrawing a dangerous driving prosecution from a jury mid-trial.
  • Where a trial judge expresses strongly held adverse views about the conduct of prosecution witnesses during the trial itself, the Court of Criminal Appeal may order that any retrial proceed before a different judge to preserve the appearance of justice.
  • Sufficient evidence of a viable prosecution case existed in this matter: a driver's own admissions about severely restricted forward visibility combined with speed above the safe limit for those conditions were capable of satisfying the dangerous driving threshold.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 107
- Road Rules 2008 (NSW)

Cases:
- May v O'Sullivan (1955) 92 CLR 654
- R v PL [2009] NSWCCA 256; (2009) A Crim R 199
- R v R (1989) 18 NSWLR 74