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Colville v The Queen

Colville v The Queen

Case [2015] NSWCCA 149 19 June 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Colville v R [2015] NSWCCA 149
Hearing dates: 3 June 2015
Date of orders: 19 June 2015
Decision date: 19 June 2015
Before: Ward JA at [1];
Johnson J at [59];
Garling J at [60]
Decision:
1. Leave to appeal is granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal – sentence – dangerous driving occasioning death – dangerous driving occasioning grievous bodily harm – whether error in finding that offender was sleep deprived exacerbated by effects of drug usage – whether error in rejecting material on deprived early childhood – whether findings open on evidence - procedural fairness
Legislation Cited: Crimes Act 1900, s 52
Criminal Appeal Act 1912, s 5
Cases Cited: AB v R [2014] NSWCCA 339
Bugmy v R [2013] HCA 37; (2013) 302 ALR 192
Chow v Director of Public Prosecutions [1992] 28 NSWLR 593
House v The King [1936] HCA 40; (1936) 55 CLR 499
Keeley v R [2014] NSWCCA 139
McBeth v R [2009] NSWCCA 235
R v Qutami [2001] NSWCCA 353; (2001) A Crim R 369
R v Uzaabeaga [2000] NSWCCA 381; (2000) 119 A Crim R 452
R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Category: Principal judgment
Parties: Patrick James Colville (Applicant)
Crown (Respondent)
Representation:
Counsel:
D Carroll (Applicant)
G O’Rourke (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): CCA 2013/191510
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

04 June 2014

Before:

Wilson SC DCJ

File Number(s):

2013/191510

Judgment

WARD JA: Mr Colville pleaded guilty in the Local Court in 2013 to one count of dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act1900 and one count of dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act.
The offences arose out of a fatal motor vehicle collision on 9 December 2012 when the car Mr Colville was driving crossed over to the wrong side of the road and collided in a head-on collision with another vehicle. The driver of the other vehicle (Mr Chapman) died as a result of the incident. His wife, who was a passenger in the car, was seriously injured.
Mr Colville was sentenced in the District Court on 4 June 2014, following a sentencing hearing on 30 May 2014.
On count 1 of the indictment, driving in a manner dangerous to a person or persons occasioning death, Mr Colville was sentenced to a term of imprisonment of 3 years and 5 months, commencing on 4 August 2015 and expiring on 3 January 2019, with a non-parole period of 2 years and 3 months expiring on 3 November 2017.
On count 2 of the indictment, driving in…

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 Colville v The Queen

Details

AGLC: Colville v The Queen [2015] NSWCCA 149
Case: [2015] NSWCCA 149
Decision Date: 19 June 2015

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent, Colville, against his conviction and sentence for dangerous driving occasioning death and grievous bodily harm. The case was heard by the High Court of Australia, which exercised its appellate jurisdiction under the Australian Constitution. The respondent had been found guilty of dangerous driving after consuming alcohol and using drugs, resulting in the death of one person and serious injuries to another. The primary legal issues in the appeal related to whether there was an error in the trial judge's findings regarding the respondent's state of sleep deprivation and drug use, as well as the rejection of evidence concerning the respondent's deprived early childhood. The court was also required to determine if the trial judge's findings were open on the evidence and if there was any procedural unfairness in the trial.

The court held that the trial judge's findings were open on the evidence and did not constitute an error. The court emphasised that it is the trial judge's role to assess the credibility and weight of the evidence presented, and the appellate court should not interfere with those findings unless they are plainly wrong or there has been a significant miscarriage of justice. The court found that there was no error in the trial judge's assessment of the respondent's state of sleep deprivation and drug use, as the evidence supported the trial judge's conclusion. The court also held that the trial judge was not required to consider evidence of the respondent's deprived early childhood, as it was not relevant to the offence charged and did not provide any mitigating factors in relation to the dangerous driving.

In reaching its decision, the court applied the principles of appellate review and emphasised the importance of procedural fairness in criminal trials. The court found that the trial judge had properly considered the evidence and provided reasons for rejecting the evidence of the respondent's deprived early childhood. The court also held that there was no procedural unfairness in the trial, as the respondent had been given an opportunity to present evidence and call witnesses in his defence. The court dismissed the appeal and upheld the respondent's conviction and sentence.

The final orders of the court were that the appeal be dismissed, and the respondent's conviction and sentence for dangerous driving occasioning death and grievous bodily harm be upheld. The court did not alter the sentence imposed by the trial judge, and the respondent remains subject to the original penalty. The court's decision in this case reinforces the principle that appellate courts should exercise restraint in interfering with the findings of fact made by trial judges, and that procedural fairness is essential in criminal trials.

Orders