Citation: R v King [2020] NSWDC 505
Court: District Court of New South Wales
Date: 4 September 2020
Judge: Lerve DCJ
Background
An accused was charged with Dangerous Driving Occasioning Death (Driving Under the Influence of Intoxicating Liquor) under s 52A(1)(a) of the Crimes Act 1900, arising from a fatal collision at an intersection in Tumut on 5 March 2016. The accused was executing a right-hand turn when his vehicle struck a motorcyclist, who died as a result. The deceased had methylamphetamine in his system and was a disqualified rider on an unregistered motorcycle.
After a lengthy procedural history that included two aborted trials, a jury acquitted the accused in March 2020. The s 52A(1)(a) charge contained a statutory defence: if the death was occasioned solely by the fault of another person, or was an inevitable consequence of conduct by someone other than the accused, the accused bore the onus of establishing that defence on the balance of probabilities.
Following the acquittal, two "back up and related" offences remained before the District Court under s 166 of the Criminal Procedure Act 1986: a charge of Negligent Driving (Occasioning Death) and a Mid-Range Prescribed Concentration of Alcohol (PCA) offence. The accused pleaded guilty to the PCA charge but applied for a permanent stay of the Negligent Driving charge, arguing that allowing it to proceed would be inconsistent with the jury's verdict.
Legal Issues
- Whether the principle of incontrovertibility (which prevents the Crown from pursuing a position in subsequent proceedings that is logically inconsistent with a prior acquittal) applied to bar the Negligent Driving charge.
- Whether it was in the interests of justice under s 167(1A) of the Criminal Procedure Act 1986 to proceed with the back-up Negligent Driving charge following the acquittal on the principal indictment.
- Whether a permanent stay was the correct remedy, or whether dismissal of the charge was more appropriate.
Decision
The trial judge, who had also presided over the jury trial, examined the basis on which the jury must have acquitted the accused. The Crown's case at trial was that even if the deceased had been travelling at excessive speed, the accused should have seen him and avoided the collision. The defence case, as reflected in the summing-up and unchallenged by trial counsel, was that the statutory defence under s 52A(8) was made out because the death was caused solely by the excessive speed of the deceased.
His Honour concluded that the jury's not guilty verdict necessarily meant the jury accepted that the collision was unavoidable due to the deceased's excessive speed. Critically, the s 52A(8) statutory defence does not require any finding that the accused drove negligently. The jury's finding therefore did not resolve the negligent driving question directly, but the "pith and substance" of the acquittal carried a factual finding that was fundamentally inconsistent with proceeding on the Negligent Driving charge.
Applying the principle of incontrovertibility, as discussed by courts including in Gilham v R and The Queen v Carroll, Lerve DCJ held that allowing the Crown to prosecute the Negligent Driving charge would be logically inconsistent with the jury's verdict. Permitting the charge to proceed would effectively require the court to act on a factual basis that the jury had rejected.
His Honour ordered a permanent stay. He noted, as an alternative, that if a stay were not the correct remedy he would have dismissed the charge. He added, candidly, that the conclusion was reached with "a great deal of reluctance," and expressed the view that the accused had been "fortunate" in the outcome of the jury trial. Ultimately, it was the incontrovertibility argument on the "pith and substance" of the acquittal that determined the result.
Orders Made
- The charge of Negligent Driving was permanently stayed.
Key Takeaways
- The District Court applied the principle of incontrovertibility to permanently stay a Negligent Driving (Occasioning Death) charge where the factual foundation necessary to support that charge was logically inconsistent with a jury's prior acquittal on a related Dangerous Driving Occasioning Death count.
- A statutory defence that does not itself require a finding of negligence (here, the s 52A(8) "sole fault" defence) can still carry implicit factual findings whose "pith and substance" is inconsistent with a subsequent prosecution on a lesser charge.
- Under s 167(1A) of the Criminal Procedure Act 1986, a court following an acquittal on an indictable offence retains discretion to decline to deal with a back-up or related offence where doing so would not be in the interests of justice.
- Where both a permanent stay and outright dismissal are potentially available as remedies in this context, the District Court treated them as alternatives, indicating the same result could be reached by either route on the facts.
- The decision illustrates that the trial judge's own knowledge of how a case was conducted, including the framing of the defence and the terms of the summing-up, can be directly relevant to assessing what a jury's verdict necessarily decided.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 165, 166, 167, 168, 169
- Crimes Act 1900 (NSW), s 52A(1)(a), s 52A(8)
- Road Transport Act 2013 (NSW), s 117
Cases
- Director of Public Prosecutions v Sinton (2001) 51 NSWLR 659; [2001] NSWCA 179
- Garrett v The Queen (1977) 139 CLR 437
- Gilham v R (2007) 178 A Crim R 72; [2007] NSWCCA 323
- Gilham v The Queen (2012) 224 A Crim R 22
- Jago v District Court of NSW (1989) 168 CLR 23
- Nash v R [2019] NSWCCA 124
- The Queen v Carroll (2002) 213 CLR 635
- Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53
- TR v Director of Public Prosecutions [2020] NSWSC 255
- Washer v Western Australia (2007) 82 ALJR 33