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District Court 6 April 2020

R v Wylie

[2020] NSWDC 550

Traffic & driving
CRIMINAL LAW CIRCUMSTANCE OF AGGRAVATION SPEED “IS OCCASIONED THROUGH” “OBJECT”

Citation: R v Wylie [2020] NSWDC 550
Court: District Court of New South Wales
Date: 6 April 2020
Judge: Beckett DCJ

Background

The accused faced two counts arising from a fatal collision on 5 July 2018 at Strathfield. He was alleged to have driven a Holden Commodore that struck and killed a pedestrian. Count 1 charged aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900 (NSW), with the circumstance of aggravation being that he drove at a speed exceeding the applicable speed limit by more than 45 kilometres per hour. Count 2 charged the non-aggravated form of dangerous driving occasioning death under s 52A(1)(c).

The accused pleaded not guilty to Count 1 and guilty to Count 2. The Crown declined to accept the plea to Count 2 as satisfaction of the whole indictment. Before trial commenced, the accused moved for a preliminary ruling on the proper construction of s 52A.

The central factual complication was that the vehicle had collided with multiple objects before striking the pedestrian. The accused's solicitor argued that the speed threshold for the circumstance of aggravation had to be assessed at the moment of each of those earlier impacts, not at the moment the car struck the deceased. The Crown disputed this construction.

  • Whether the court had power to make a preliminary ruling on the construction of s 52A before evidence was led at trial, under s 192A of the Evidence Act 1995 (NSW).
  • Whether "the impact" in s 52A(7) (which defines the circumstances of aggravation by reference to the driver's speed "at the time of the impact") referred to any one of the earlier collisions with objects such as a median strip or kerb, rather than the impact with the deceased.
  • Whether s 52A(5)(d), which addresses death occasioned through "the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact," was the only applicable sub-provision because the vehicle had struck objects before hitting the pedestrian.
  • Whether the approach to contemporaneity established in Jiminez v The Queen (1992) 173 CLR 572 survived the subsequent amendments to s 52A and could apply to determine the relevant time of impact.

Decision

On the preliminary ruling power: Beckett DCJ held it was appropriate to exercise the discretion under s 192A of the Evidence Act 1995 to give an advance ruling on the construction of s 52A. The ruling would assist in narrowing the expert evidence to be called at trial and inform the Crown's assessment of its prospects on Count 1. His Honour noted that preliminary rulings of this kind have been recognised as permissible in cases such as R v Adamson [2005] NSWCCA 7 and R v Piper [2005] NSWCCA 134, and that any such ruling may be revisited if new issues emerge during the proceedings.

On the applicable sub-provision: The court ruled that the Crown was not required to rely on s 52A(5)(d) simply because the vehicle had collided with objects before striking the deceased. Section 52A(5)(d) applies where death is occasioned through the impact of the accused's vehicle with an object or vehicle near which the deceased was located at the time. Here, the pedestrian was struck directly by the car, making s 52A(5)(d) inapplicable on those facts. The plain application of the section was that death was occasioned by the direct impact between the vehicle and the pedestrian.

On the time of impact and contemporaneity: His Honour held that "the impact" for the purposes of the circumstance of aggravation properly referred to the moment the accused's vehicle struck the deceased, not the earlier collisions with the median strip or kerb. The Crown was therefore entitled to put its case on the basis that the accused's speed in the period immediately preceding the fatal impact could satisfy the aggravation requirement, provided that period of dangerous speed was sufficiently contemporaneous with the fatal impact to be considered one continuous act that caused the death. This approach is consistent with the reasoning of the High Court plurality in Jiminez, which, the court held, survived the legislative amendments to s 52A.

On the accused's motion: His Honour declined to make the order sought by the accused. The question of contemporaneity remained a factual matter for determination by the trial judge after all evidence had been heard.

Orders Made

• Decline to make the order sought at (2) of the Notice of Motion

Key Takeaways

  • Under s 52A of the Crimes Act 1900 (NSW), "the impact" for the purpose of assessing the circumstance of aggravation refers to the fatal impact with the victim, not to prior collisions the vehicle may have had with other objects in the same sequence of events.
  • Section 52A(5)(d) is directed at situations where death is occasioned through the accused's vehicle striking another object or vehicle near which the deceased was positioned at that time, not where the accused's vehicle strikes the deceased directly.
  • The contemporaneity principle from Jiminez v The Queen (1992) 173 CLR 572 survived the subsequent amendments to s 52A: the Crown may establish the circumstance of aggravation by reference to a period of driving immediately before the fatal impact, if that driving was so closely connected in time and causation as to constitute one act causing death.
  • A court has a broad discretion under s 192A of the Evidence Act 1995 (NSW) to give advance rulings on questions of statutory construction where doing so assists in narrowing the issues and facilitating the conduct of the trial.
  • Preliminary rulings of this kind remain revisable during the proceedings if new issues arise, consistent with KH v R [2014] NSWCCA 294 and A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A (in particular ss 52A(1), (2), (5), (6), (7))
- Evidence Act 1995 (NSW), s 192A
- Criminal Procedure Act 1986 (NSW), ss 130A, 139(3)(g)
- Crimes (Amendment) Bill 1955 (NSW)
- Crimes (Dangerous Driving Offences) Amendment Bill 1994 (NSW)
- Motor Traffic Act 1909 (NSW)
- Road Traffic Act 1974 (WA), s 59

Cases:
- Jiminez v The Queen (1992) 173 CLR 572
- R v Adamson [2005] NSWCCA 7
- R v Piper [2005] NSWCCA 134
- KH v R [2014] NSWCCA 294
- A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244
- R v TR (2004) 180 FLR 424
- Magorian v Lodge [2011] WASC 147
- Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Lacey v Attorney General (Qld) (2011) 242 CLR 573
- McBride v The Queen (1966) 115 CLR 44
- Harlor v The Queen (1956) 95 CLR 170
- Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
- Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40