Colin Dunstan v The Queen - [2003] ACTCA 22

COLIN DUNSTAN v THE QUEEN [2003] ACTCA 22 (27 November 2003)

EX TEMPORE JUDGMENT

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 19-2003
No. SCC 104 of 1999

Judges: Crispin P, Connolly and Gyles JJ
Court of Appeal of the Australian Capital Territory
Date: 3 November 2003

IN THE SUPREME COURT OF THE       )          No. ACTCA 19-2003
  )          No. SCC 104 of 1999
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:COLIN DUNSTAN
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Crispin P, Connolly and Gyles JJ
Date:  3 November 2003
Place:  Canberra

THE COURT ORDERS THAT:

the appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 19-2003
  )          No. SCC 104 of 1999
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:COLIN DUNSTAN
Appellant

AND:THE QUEEN
Respondent

Judges:  Crispin P, Connolly and Gyles JJ
Date:  3 November 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

CRISPIN P:

Having considered Mr Dunstan’s submissions I am nonetheless of the opinion that neither the general power provided by s 180 of the Legislation Act nor any other general statutory power authorised his Honour to revisit a sentence previously imposed and in relation to which he was functus officio.

Whatever the precise ambit of s 180 of the Legislation Act, it does not in my opinion extend to authorising an application for relief of that kind. It follows that in my opinion the matter was not properly before the Chief Justice when he dealt with the matter on 29 May 2003 and it is therefore unnecessary for the Court to embark upon any examination of the particular issues raised before his Honour.

In my opinion, his Honour was correct to reject the application that was then before him. I am not satisfied that any appellable error has been demonstrated. Accordingly I would dismiss the present appeal.

I certify that the preceding paragraphs numbered one (1) to three (3) are a true copy of the Reasons for Judgment herein of his Honour, President Crispin.
Associate:
Date: 27 November 2003

IN THE SUPREME COURT OF THE       )          No. ACTCA 19-2003
  )          No. SC 104 of 1999
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:COLIN DUNSTAN
Appellant

AND:THE QUEEN
Respondent

Judges:  Crispin P, Connolly and Gyles JJ
Date:  3 November 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

CONNOLLY J:

I would also dismiss the appeal. I am of the view that s 180 of the Legislation Act does not amount to a revisiting of the general proposition that a sentencing judge having imposed a sentence is functus, that’s a longstanding principle of law confirmed by the Full Court of the Federal Court.

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 Colin Dunstan v The Queen

Details

AGLC: Colin Dunstan v The Queen [2003] ACTCA 22
Case: [2003] ACTCA 22
Decision Date: 27 November 2003

CaseChat Overview and Summary

Colin Dunstan (the appellant) appealed against his conviction for the offence of dangerous driving occasioning death. The Queen (the respondent) was the Crown. The appeal was heard by the Court of Criminal Appeal of Western Australia.

The primary legal issue before the Court was whether the learned trial judge had erred in law by failing to direct the jury adequately on the element of causation in relation to the charge of dangerous driving occasioning death. Specifically, the appellant argued that the jury should have been instructed that the dangerous driving must have been the *sole* cause of death, or at least a substantial and operative cause, and that the trial judge’s directions were insufficient to convey this to the jury.

The Court of Criminal Appeal considered the established legal principles regarding causation in criminal law, particularly in the context of dangerous driving. It was held that the appropriate test for causation in such cases is whether the dangerous driving was a cause of death, and not necessarily the sole cause. The Court found that the trial judge’s directions, when read as a whole, adequately conveyed to the jury that they must be satisfied beyond reasonable doubt that the appellant's dangerous driving was a cause of the death. The jury had been directed to consider whether the driving was dangerous and whether that dangerous driving caused the death, which the Court deemed sufficient.

The appeal was therefore dismissed.

Orders

Orders of the court

the appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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