Gary Shane Austin v The Queen

Gary Shane Austin (the applicant) sought leave to appeal against his conviction for the offence of dangerous driving occasioning death. The applicant was convicted in the District Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales.

The primary legal issue before the Court of Criminal Appeal was whether the trial judge had erred in law by failing to direct the jury on the alternative offence of dangerous driving. The applicant argued that the evidence presented at trial was capable of supporting a finding that his driving was dangerous, but not necessarily dangerous occasioning death, and that the jury should have been given the option to consider this lesser charge.

The Court of Criminal Appeal considered the evidence and the relevant legal principles concerning the duty of a trial judge to direct a jury on alternative offences. The Court found that the evidence, when viewed in its entirety, did not support an acquittal on the charge of dangerous driving occasioning death while simultaneously supporting a conviction for simple dangerous driving. Therefore, the Court concluded that the trial judge had not erred in law by failing to direct the jury on the alternative offence.

Leave to appeal was refused.