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Court of Criminal Appeal 25 September 2023

Parker v R

[2023] NSWCCA 234

Traffic & driving
CRIME APPEALS CONVICTION APPEAL JUDGE ALONE TRIAL INCONSISTENCY FOUND APPEAL ALLOWED

Citation: Parker v R [2023] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 25 September 2023
Judges: Beech-Jones CJ at CL, Dhanji J, Chen J

Background

The appellant was driving along Kurrajong Road, Richmond at around 4:51 am on 19 December 2019 when he fell asleep at the wheel. His car crossed to the wrong side of the road and struck two cyclists riding on the shoulder. Both cyclists died from their injuries.

The appellant was charged with two counts of dangerous driving occasioning death (under s 52A(1)(c) of the Crimes Act 1900 (NSW)) and one count of negligent driving occasioning death (under s 117(1)(a) of the Road Transport Act 2013 (NSW)). At neither hearing did the appellant contest that he had fallen asleep and caused the collision. His defence was that he held an honest and reasonable, though mistaken, belief that it was safe for him to drive.

The matter was heard judge-alone by Payne DCJ in the District Court. In August 2021, her Honour acquitted the appellant of both dangerous driving charges. In January 2022, hearing the negligent driving charge as a backup offence on the same evidence, her Honour convicted the appellant. He was sentenced to 12 months' imprisonment to be served by way of intensive correction order (with 200 hours of community service), and was disqualified from driving for three years. The appellant had served his sentence in full by the time this appeal was heard.

  • Whether Payne DCJ made an error of law by finding there was "no evidence" that the appellant had fallen asleep spontaneously, when evidence capable of supporting that inference was available on the record.
  • Whether the finding about warning signs of impending sleep was open on the evidence, or whether preferring one version of the evidence over another amounted to legal error.
  • Whether the conviction for negligent driving was inconsistent with the acquittal for dangerous driving, given that both charges arose from indistinguishable underlying conduct and the same factual period.
  • Whether Payne DCJ's reasons adequately addressed the honest and reasonable mistake of fact defence when dealing with the negligent driving charge, having already accepted that defence in the dangerous driving judgment.
  • Whether the appropriate remedy was acquittal or a retrial.

Decision

Ground 1: Error of law regarding spontaneous sleep

Chen J (with whom Beech-Jones CJ at CL and Dhanji J agreed) held that Payne DCJ committed an error of law by stating there was "no evidence" that the appellant had spontaneously fallen asleep. Evidence capable of supporting that inference did exist in the record. The court applied the principle from Azzopardi v Tasman UEB Industries Ltd that a finding of "no evidence" is an error of law where evidence capable of supporting the relevant finding is in fact available.

On the related question of whether the appellant had received some warning before falling asleep, the court found no error. Payne DCJ's preference for one version of the conflicting evidence over another did not amount to a legal error, even if other conclusions were available. Preferring one body of evidence is not the same as finding that no evidence exists.

Ground 2: Inconsistency between the two verdicts

The court found that the Crown case on the dangerous driving charges and the negligent driving charge rested on the same conduct over the same time period. There was no material factual distinction between them. In that context, Payne DCJ's acceptance of the honest and reasonable mistake of fact defence when acquitting on the dangerous driving charges should have carried through to the negligent driving charge. Failure to do so produced verdicts that were irreconcilable with one another. The court held that Payne DCJ's reasons for convicting on the negligent driving charge either inadequately addressed the earlier reasoning in the dangerous driving judgment or failed to properly confront the Crown's case.

Remedy: Acquittal rather than retrial

The court ordered an acquittal rather than a retrial. Several factors supported this outcome: the collision occurred approximately four years before the appeal, the appellant was 19 at the time; the Crown case was not regarded as overwhelming; the appellant had already served his full sentence; and there was no Crown appeal from the dangerous driving acquittal on the honest and reasonable mistake of fact issue. Crucially, for the Crown to succeed at a retrial, it would have needed to advance a case that was not put at the original trial, which is contrary to the general rule against ordering a retrial for that purpose.

Orders Made

  • Appeal allowed.
  • Conviction for negligent driving occasioning death quashed.
  • In lieu thereof, the appellant is acquitted.

Key Takeaways

  • A finding that there is "no evidence" to support an inference is an error of law when evidence capable of supporting that inference was in fact before the court. This principle from Azzopardi applies equally in criminal proceedings.
  • Preferring one version of conflicting evidence over another does not constitute a finding of "no evidence," and does not of itself amount to legal error.
  • Where dangerous driving and negligent driving charges arise from materially indistinguishable conduct across the same time period, a trial judge hearing those charges sequentially must ensure that a successful honest and reasonable mistake of fact defence carries through consistently between verdicts.
  • Inconsistency between an acquittal and a subsequent conviction is a recognised basis for appellate intervention, particularly where the same evidence is used at both proceedings, as occurs in the backup offence procedure under the Criminal Procedure Act 1986 (NSW).
  • In determining whether to order acquittal or retrial after a successful conviction appeal, relevant considerations include the strength of the Crown case, the time elapsed, whether the sentence has been served, and whether a retrial would require the Crown to advance a case not previously run.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Road Transport Act 2013 (NSW), s 117(1)(a)
- Road Rules 2014 (NSW), s 132(2)
- Criminal Procedure Act 1986 (NSW), ss 166, 167, 168
- Criminal Appeal Act 1912 (NSW), ss 5AA, 6(1)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Justice Legislation Amendment Act 2017 (NSW)

Cases
- Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
- Bruce v Cole (1998) 45 NSWLR 163; [1998] NSWCA 45
- Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14
- King v The Queen (1986) 161 CLR 423; [1986] HCA 59
- Gilham v R (2012) 224 A Crim R 22; [2012] NSWCCA 131
- Prineas v R (2018) 86 MVR 148; [2018] NSWCCA 221
- Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43
- Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338; [2016] NSWCCA 37
- Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR; [2010] HCA 32