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Bouch v The Queen

Bouch v The Queen

Case [2017] VSCA 86 20 April 2017

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0060

IAN BRUCE BOUCH	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, WEINBERG, WHELAN, PRIEST and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2017
DATE OF JUDGMENT:	20 April 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 86	First Revision: 14 August 2019 para [45]
RULING APPEALED FROM:	DPP v Bouch (Unreported, County Court of Victoria, Judge Chettle, 24 February 2016 (Conviction))

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CRIMINAL LAW – Appeal – Conviction – Culpable driving causing death and dangerous driving causing death or serious injury – Alternative offences under ss 318 and 319 and governed by s 422A(1) of the Crimes Act 1958 – King v The Queen (2012) 245 CLR 588 applied – Reference to ‘merited criminal punishment’ should not be part of directions in future – Comparison with civil liability may be helpful in directing juries as to s 318(2)(b) – Juries to be otherwise directed in accordance with R v De’Zilwa (2002) 5 VR 408 – Whether judge misdirected jury as to the sequence in which they should deliberate – Observations on the applicability of Stanton v The Queen (2003) 198 ALR 41 – R v Williamson (1807) 3 C & P 635, R v Bateman (1925) 19 Cr App R 8, Andrews v Director of Public Prosecutions [1937] AC 576, R v McCready [1967] VR 325, R v Horvath [1972] VR 533, R v Lucas [1973] VR 693, R v Stephenson [1976] VR 376, Nydam v The Queen [1977] VR 430, R v Shields [1981] VR 717, Wilson v The Queen (1992) 174 CLR 313, Simms v The Queen (2008) 148 A Crim R 433, R v De Montero (2009) 25 VR 694, LLW v The Queen (2012) 35 VR 372, Patel v The Queen (2012) 247 CLR 531, Medici v The Queen (2013) 39 VR 350, Smith v The Queen (2013) 39 VR 336, Vo v The Queen (2013) 39 VR 543, R v Wolter (No 2) (2015) 302 FLR 1 discussed – No substantial miscarriage of justice as conviction for culpable driving inevitable – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis SC with Mr J P W Maloney	Valos Black & Associates
For the Respondent	Mr D A Trapnell QC with Ms S M K Borg	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
WEINBERG JA:

We have had the considerable advantage of reading in draft the reasons for judgment prepared by Priest JA. We agree that it is a misdirection to include as an element of culpable driving causing death (‘CDCD’) that the jury must be satisfied that the driving in question ‘merited criminal punishment’. So far as jury directions in this State are concerned, the decision in R v De’Zilwa[1] should continue to be applied, save for the excision of any reference to meriting, or deserving, criminal punishment, or any such equivalent.
[1](2002) 5 VR 408.

We…

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 Bouch v The Queen

Details

AGLC: Ian Bruce Bouch v The Queen [2017] VSCA 86
Case: [2017] VSCA 86
Decision Date: 20 April 2017

CaseChat Overview and Summary

In the matter of Bouch v The Queen, the appellant challenged his conviction and sentence for culpable driving causing death and dangerous driving causing death or serious injury. The Court of Appeal was tasked with determining whether the trial judge misdirected the jury in the sequence of their deliberations, and if the failure to direct the jury in accordance with certain precedents amounted to a substantial miscarriage of justice. The court was also required to consider the applicability of various authorities on the issue of jury directions, including Stanton v The Queen, R v Williamson, Andrews v Director of Public Prosecutions, and others.

The court examined the trial judge's directions to the jury, focusing on whether the reference to "merited criminal punishment" should have been included in the directions. The court found that the omission was not a substantial misdirection, as the jury's understanding of the applicable law was not significantly affected. The court also considered whether the trial judge should have compared the relevant statutory provisions with civil liability, finding that while such a comparison might be helpful, it was not necessary in this case. Furthermore, the court held that the trial judge did not err in directing the jury in accordance with R v De’Zilwa, and that the omission of certain authorities did not amount to a substantial miscarriage of justice.

The court held that there was no substantial miscarriage of justice in the trial, and the conviction for culpable driving was inevitable. The court dismissed the appeal, finding that the trial judge's directions to the jury were sufficient, and the omission of certain authorities did not affect the outcome of the case. The court also noted that future directions to juries should avoid referencing "merited criminal punishment" and may find it helpful to compare the statutory provisions with civil liability, where appropriate.

The Court of Appeal dismissed the appeal and affirmed the conviction and sentence of the appellant.

Orders