King v The Queen

• Jurisdiction: Australia Federal only
• Judge: French CJ,Crennan,Kiefel JJ.
• Judgment Date: 12 February 2012
• Neutral Citation: 2012-0620 HCA B,[2012] HCA 24
• Court: High Court
• Docket Number: M129/2011
• Date: 12 February 2012

[2012] HCA 24

HIGH COURT OF AUSTRALIA

French CJ, Heydon, Crennan, Kiefel and Bell JJ

M129/2011

Trent King

Appellant

and

The Queen

Respondent

Representation

M J Croucher SC with C A Boston for the appellant (instructed by Balmer &Associates)

G J C Silbert SC with B L Sonnet for the respondent (instructed by Office of Public Prosecutions Victoria)

Crimes Act 1958 (Vic), ss 318, 319, 422A(1) ..

King v The Queen

Criminal law — Appeal against conviction — Jury misdirection — Appellant convicted of two counts of ‘culpable driving causing death’ contrary to s 318(1) of the Crimes Act 1958 (Vic) (‘the Act’) — Jury had power under the Act to return an alternative verdict of ‘dangerous driving causing death’ contrary to s 319(1) if satisfied that accused not guilty of offence charged under s 318 — Trial judge directed jury that dangerous driving established by proof accused drove in way that ‘significantly increased the risk of harming others’ and that Crown did not have to show driving was ‘deserving of criminal punishment’ — Whether trial judge misdirected jury — Whether R v De Montero (2009) 25 VR 694 should be followed — Whether departure from trial according to law or miscarriage of justice.

Words and phrases — ‘culpable driving causing death’, ‘deserving of criminal punishment’, ‘dangerous driving causing death’.

ORDER

Appeal dismissed.

French CJ, Crennan, Kiefel JJ.

Introduction

1 This appeal against two convictions for culpable driving causing death contrary to s 318(1) of the Crimes Act 1958 (Vic) (‘the Crimes Act’), concerns the way in which alternative verdicts for the lesser offence of dangerous driving causing death, contrary to s 319(1) of the Crimes Act, were left to the trial jury. In the Court of Appeal of the Supreme Court of Victoria (Buchanan, Redlich and Mandie JJA), the appellant, Trent Nathan King, contended unsuccessfully that the trial judge ( Douglas J) had misdirected the jury on the lesser offence. He complained that the trial judge had pitched the standard of dangerous driving, necessary for conviction of the lesser offence, at such an erroneously low level of culpability that the jury would have been less inclined to consider convicting him of that offence. Her Honour told the jury that dangerous driving was established by proof that the accused drove in a way that ‘significantly increased the risk of harming others.’ Her Honour's direction accorded with existing authority in Victoria. The subsequent decision of the Court of Appeal in R v De Montero1 construed s 319 as imposing a higher level of culpability than set out in the trial judge's direction. It required driving that created ‘a considerable risk of serious injury or death to members of the public.’ 2 It also required conduct by the accused in his manner of driving which was such as to merit punishment by the criminal law. The decision in De Montero was applied by the Court of Appeal in this case. For reasons which are set out below, De Montero should not be followed.

2 The trial judge's direction was potentially misleading in one respect. Her Honour directed the jury that, in order to establish that Mr King had committed the offence of dangerous driving causing death, it was not necessary for the Crown to prove that the driving said to be dangerous was deserving of criminal punishment. By that direction, which was contrary to the guidelines later set down in De Montero, her Honour sought to exclude the criterion of criminal negligence from the jury's consideration of the offence under s 319. As is explained later in these reasons, her Honour's understanding of s 319 in that regard was correct. Insofar as the direction had the potential to mislead the jury, it did not constitute a miscarriage of justice. Such a conclusion is reinforced by the absence of any request for a redirection by defence counsel. The appeal should be dismissed.

Procedural history

3 On 1 September 2008, Mr King was arraigned in the County Court of Victoria in Melbourne and pleaded not guilty to two counts of culpable driving causing death, contrary to s 318(1) of the Crimes Act. After a trial before a judge and jury he was found guilty on both counts. On 30 October 2008, he was sentenced to a total effective term of imprisonment of seven years and six months, with a non-parole period of four years and six months.

4 On 7 November 2008, Mr King filed applications in the Court of Appeal for leave to appeal against his convictions and sentence. The applications were heard on 9 February 2011. On 17 March 2011, the Court of Appeal dismissed the application for leave to appeal against conviction but allowed the application for leave to appeal against sentence and allowed the appeals against sentence. It reduced his total effective sentence to six years and six months imprisonment with a non-parole period of three years and six months 3.

5 Pursuant to a grant of special leave made on 2 September 2011, Mr King appealed to this Court against the decision of the Court of Appeal dismissing his application for leave to appeal against his convictions. No complaint is made in the appeal to this Court about the trial judge's directions to the jury in relation to the offences of culpable driving causing death of which Mr King was convicted. The sole ground of appeal related to the standard of culpability applied in the direction concerning the alternative verdicts of dangerous driving causing death. The Crown, by notice of contention, challenged the correctness of the decision of the Court of Appeal in De Montero.

Factual background

6 On 13 July 2005 at about 1 am Mr King was driving a BMW car north along Evans Road, Cranbourne, approaching the intersection of Evans Road and Thompsons Road, which runs east/west. He was driving two friends to Oakleigh. He drove past a ‘Give Way’ sign at the intersection and collided with a Mitsubishi tray truck entering the intersection on his left from Thompsons Road 4. The BMW ended up lying on its roof in bushes to one side of the road. Mr King's two passengers died in the collision.

7 There was evidence from the driver of the Mitsubishi truck and his passengers that the intersection was not well lit. On the other hand, there was evidence of police witnesses that the lighting at the intersection was adequate. The road was in a semi-rural area so that it did not have the same kind of lighting as would be found in a built-up area. There were two yellow signs with a black cross on the left and right hand sides of Evans Road which indicated to vehicles travelling north that they were approaching an intersection. There were also signs at the intersection itself which indicated that the northern extension of Evans Road beyond the intersection was closed for road works.

8 There was no evidence that Mr King had consumed alcohol or that he had been driving irresponsibly prior to the collision. There was, however, evidence of tetrahydrocannabinol in his blood at a level of 13ng/mL, which was characterised by expert witnesses as a ‘high reading’ and which, according to their evidence, would have ‘significantly impaired’ his driving skills at the relevant time. Mr King was travelling within the applicable speed limit, which was 80 kph. His pre-impact speed was estimated by an expert police witness, who examined the vehicles and the collision site, as 75 kph. The same witness described the intersection as having a crash history. He had attended the scene of a fatal accident there in March 2004. There was evidence of a bank of trees near the intersection that would have obscured the vision of a driver travelling north on Evans Road almost to the point at which the driver reached the intersection.

9 Mr King did not give evidence at the trial, nor did he call any witnesses in his defence.

Statutory framework

10 Mr King was charged under s 318 of the Crimes Act which relevantly provided:

• ‘(1) Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both.

• (2) For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle -

…

(b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; or

…

(d) whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.’

11 The alternative verdict which was left open to the jury, related to the offence of dangerous driving causing death created by s 319 of the Crimes Act. That section relevantly provided 5:

‘(1) A person who by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of, or serious injury to another person, is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).’

12 The jury's authority to bring in a verdict of guilty of an offence against s 319 was conferred and conditioned by s 422A(1) which provided:

‘If on the trial of a person charged with an offence against section … 318 (culpable driving causing death) the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that he or she is guilty of an offence against section 319 (dangerous driving causing death or serious injury), the jury may acquit the accused of the offence charged and find him or her guilty of the offence against section 319 and he or she is liable to punishment accordingly.’

As a matter of construction, the power to deliver an alternative verdict of guilty of the offence under s 319 is conditioned upon the jury not...