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Aston v The Queen

Aston v The Queen

Case [2019] VSCA 225 14 October 2019

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2019 0017
S APCR 2019 0071

JACK WILLIAM ASTON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 October 2019
DATE OF JUDGMENT:	14 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 225
JUDGMENT APPEALED FROM:	DPP v Aston (Unreported, County Court of Victoria, Judge Stuart, 23 October 2018) (Conviction); [2018] VCC 2258 (Sentence)

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CRIMINAL LAW – Appeal – Conviction – Applicant drove chartered bus carrying 14 passengers into bridge – Six passengers suffered serious injuries from collision – Convicted on six counts negligently causing serious injury – Prosecution and defence counsel failed to inform trial judge of statutory alternative verdict – Whether substantial miscarriage of justice occasioned by alternative verdict of dangerous driving causing serious injury not being left to jury – Whether trial judge’s direction on negligence deficient – Whether improper for informant to act as ‘shower’ for purposes of view – Leave to appeal granted with respect to failure to leave statutory alternative verdict – Appeal allowed – Convictions for dangerous driving causing serious injury substituted – Crimes Act 1958 s 422A; Jury Directions Act 2015 ss 11, 12, 16 – Bouch v The Queen (2017) 270 A Crim R 478, King v The Queen (2012) 245 CLR 588 applied; James v The Queen (2014) 253 CLR 475 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C A Boston and Dr M Fitzgerald	Doogue + George
For the Respondent	Ms F L Dalziel QC with Ms K Farrell	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
KAYE JA:

Introduction and overview

At about 10.22 am on 22 February 2016, the applicant drove a bus carrying 14 passengers into the Montague Street Bridge, South Melbourne, a notorious site for collisions involving large vehicles. As a result, six passengers suffered serious injuries.

On 9 March 2016, police arrested and interviewed the applicant, and, on 21 September 2016, laid some 23 indictable and summary charges against him.

Following his committal for trial on 14 November 2017, an indictment ultimately was filed in the County Court charging the applicant with negligently causing serious injury[1] (six charges — charges 1 to 6). After a contested 12 day trial, a jury found the applicant guilty of all six charges on 23 October 2018.
[1]Crimes Act 1958, s 24. The maximum penalty is 10 years’ imprisonment.

On 17 December 2018, following a plea hearing on 13 December 2018, the judge sentenced the applicant to be imprisoned for two years and nine months on charge 1 (which became the base sentence), and for three years on each of charges 2 to 6. The judge directed that six months of the sentences on charges 2 to 6 be served cumulatively with each other and with the sentence on charge 1, producing a total effective sentence of five years and three months’ imprisonment, upon which the judge fixed a non-parole period of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aston v The Queen

Details

AGLC: Jack William Aston v The Queen [2019] VSCA 225
Case: [2019] VSCA 225
Decision Date: 14 October 2019

CaseChat Overview and Summary

In the case of Aston v The Queen, the appellant, Aston, was convicted on six counts of negligently causing serious injury after he drove a chartered bus into a bridge, resulting in serious injuries to six passengers. Aston appealed against his conviction, arguing that the trial judge failed to leave the statutory alternative verdict of dangerous driving causing serious injury to the jury, that this omission constituted a substantial miscarriage of justice, and that the trial judge's directions on negligence were deficient. Additionally, Aston argued that it was improper for the informant to act as a'shower' for the purposes of a view.

The legal issues before the court were whether the failure to leave the statutory alternative verdict to the jury constituted a substantial miscarriage of justice, whether the trial judge's direction on negligence was deficient, and whether it was proper for the informant to act as a'shower' for the purposes of a view. The court considered the statutory provisions and case law relevant to these issues, including the Crimes Act 1958, the Jury Directions Act 2015, and the cases of Bouch v The Queen, King v The Queen, and James v The Queen.

The court found that the failure to leave the statutory alternative verdict to the jury constituted a substantial miscarriage of justice, as it was a fundamental error that went to the heart of the case. The court also found that the trial judge's direction on negligence was deficient, as it did not adequately explain the concept of negligence to the jury. However, the court found that the informant's role as a'shower' did not constitute a substantial miscarriage of justice. The court allowed the appeal and substituted convictions for dangerous driving causing serious injury in lieu of the convictions for negligently causing serious injury.

The final orders of the court were that leave to appeal was granted with respect to the failure to leave the statutory alternative verdict, the appeal was allowed, and convictions for dangerous driving causing serious injury were substituted in lieu of the convictions for negligently causing serious injury. The court's decision highlights the importance of ensuring that all relevant verdicts are left to the jury and that trial judges provide adequate directions on the applicable legal standards.

Orders