DPP v Orchard (Ruling No 1) - [2022] VSC 601

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0289

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
JESSE ORCHARD	Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2022
DATE OF RULING:	27 September 2022
DATE OF REVISED REASONS:	7 October 2022
CASE MAY BE CITED AS:	DPP v Orchard (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2022] VSC 601

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CRIMINAL LAW – Trial – No case submission – Accused charged with one count of dangerous driving causing death – Whether evidence taken at its highest could sustain a guilty verdict – Meaning of ‘dangerous driving’ – Whether accused exhibited a ‘momentary lapse’ – Criminal Procedure Act 2009 (Vic) ss 226(1)(a), 226(2), 232A – Crimes Act 1958 (Vic) s 319(1) – Road Safety Rules 2017 (Vic), Schedule 5.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Grant Hayward	Office of Public Prosecutions
For the Accused	Mr Jarrod Williams	Tony Hargreaves & Partners Lawyers

HIS HONOUR:

Introduction

In this matter, the accused man is charged with one charge of dangerous driving causing death. The prosecution case against him is that in the early hours of Thursday, 16 July 2020, he was driving a Scania P440 garbage truck and was collecting waste from various locations in the Mulgrave area.

In the course of doing that, at about 5.30am he drove his truck into a BMW dealership or office block at 783 Springvale Road and collected waste. That building is on the western side of Springvale Road. About 5.31am, he left the car park via the boom gate and drove down the driveway towards the exit onto Springvale Road. At 5.32am, he cleared the security gate, driving down the remainder of the driveway onto that road and pulled into the middle of three lanes, which were the northbound lanes of Springvale Road. His venture into the middle lane was due to the size of the vehicle he was driving.

At that stage, the deceased man, Sengly Say, was riding his motorcycle north along Springvale Road, and apparently in the right hand lane. He had very high levels of methylamphetamine in his body, as well as amphetamine, MDMA, and heroin.

Evidence has been given during the course of the trial about the effects of those drugs on the ability to manage a motor vehicle and the likely effects on the potential to speed and engage in risk-taking behaviour. Though for present purposes, those issues do not really arise. Additionally, the motorcyclist was unregistered, and the deceased was not licenced to ride a motorcycle of the kind that he was riding.

The CCTV images which have been obtained from surrounding buildings make it clear that the front headlight of the motorcycle was on. The motorcycle was a 659cc endurance bike and, on any view, a powerful vehicle. It has disc brakes on the front and rear but did not have antilock braking system (ABS) fitted.

When the deceased man was a short distance away,…

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 DPP v Orchard (Ruling No 1)

Details

AGLC: Director of Public Prosecutions v Orchard (Ruling No 1) [2022] VSC 601
Case: [2022] VSC 601
Decision Date: 27 September 2022

CaseChat Overview and Summary

The case of DPP v Orchard (Ruling No 1) involved the Director of Public Prosecutions (DPP) bringing a charge against the accused, Orchard, for dangerous driving causing death. The accused was alleged to have driven in a manner that was dangerous to the public, resulting in the death of a pedestrian. The matter was heard in the County Court of Victoria.

The primary legal issue for the court to determine was whether the evidence presented could sustain a conviction for dangerous driving causing death, based on the statutory definition of dangerous driving. The court needed to consider whether the accused's actions could be described as a momentary lapse or if they amounted to dangerous driving as defined by the Road Safety Act 2017 (Vic) and the Crimes Act 1958 (Vic). Additionally, the court had to interpret the meaning of ‘dangerous driving’ and whether the evidence supported a conclusion that the accused exhibited such conduct.

The court found that the evidence, when taken at its highest, could not sustain a conviction for dangerous driving causing death. The court held that the accused's actions were not of a nature that would have led a competent and careful driver to realise they were engaging in dangerous driving. The court emphasised the need for a clear understanding of the statutory definition of dangerous driving and concluded that the accused's conduct did not meet the threshold required for a conviction. The court dismissed the charge against the accused.

The final orders of the court were that the charge of dangerous driving causing death be dismissed. The court determined that the evidence presented did not support a conviction under the statutory definition of dangerous driving, and therefore the accused was acquitted of the charge.

Orders