Jiminez v The Queen - [1992] HCATrans 35

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IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Sydney No S45 of 1991

B e t w e e n -

MICHAEL JIMINEZ

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

MCHUGH J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 5 FEBRUARY 1992, AT 11.37 AM
Copyright in the High Court of Australia

Jiminez 1 5/2/92

MR P.J. HIDDEN, QC: May it please the Court, I appear with
my learned friend, MR K.O. EARL, for the applicant.
(instructed by Baker & Edmunds)

R.N. HOWIE, QC: If it please the Court, I appear with my

learned friend, MR M. LATHAM, for the respondent

Crown. (instructed by the Director of Public
Prosections (New South Wales))

MASON CJ: Mr Hidden?

MR HIDDEN: Your Honours, this is an application for special
leave to appeal against the decision of the Court of Criminal Appeal of New South Wales, dismissing the applicant's appeal to that court from his
conviction and sentence in the district court upon
a charge of culpable driving. Might we hand to
Your Honours an outline of argument.

MASON CJ: Yes, Mr Hidden.

MR HIDDEN: If the Court please. Your Honours, culpable
driving is an offence created by section 52A of the

New South Wales Crimes Act. The allegation, in

this trial, was that on 14 June 1988 at about 6 am
at a spot in the Pacific Highway about
30 kilometers north of Kempsey, the applicant drove
his vehicle in a manner dangerous to the public, as
a result of which he came into impact with a tree,
as a result of which a female passenger was killed.
Your Honours, the facts shortly were these:

the applicant the previous day apparently had been
at the Gold Coast in Queensland. Prior to 11.00 pm
on that day he had had about four hours sleep and

had had a meal. He left the Gold Coast in the
vehicle with his three companions at about that
time and for about the first 400 kilometres of the
journey south one of his female companions, in fact
the lady who was killed, drove. During that time
he slept in the car as, it seems, did the other
passengers. At around Coffs Harbour he took over

the wheel himself and drove, it seems, something of
the order of 200 kilometres to the spot where the
.accident occurred. During that time, it seems, the
female passengers themselves were asleep. At the
relevant time there was fog and the road was
winding. At the point in question he approached a
right-hand curve which the vehicle failed to

negotiate. It ran off the road, it struck one tree
and then came to rest against another.
Now, Your Honours, the history leading to the accidents and the course of driving involved in it
was evidenced almost entirely by conversations
between the applicant himself and the police and

Jiminez 2

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 Jiminez v The Queen

Details

AGLC: Jiminez v The Queen [1992] HCATrans 35
Case: [1992] HCATrans 35
Decision Date

CaseChat Overview and Summary

The applicant, Jiminez, sought special leave to appeal to the High Court of Australia against a decision of the Court of Criminal Appeal of New South Wales. The Court of Criminal Appeal had dismissed Jiminez's appeal from his conviction and sentence for culpable driving, an offence under section 52A of the Crimes Act 1900 (NSW). The charge arose from a motor vehicle accident on the Pacific Highway near Kempsey, where Jiminez's vehicle left the road, struck a tree, and resulted in the death of a female passenger.

The legal issues before the High Court concerned the applicant's conviction for culpable driving. Specifically, the court was required to consider whether the evidence presented at trial was sufficient to establish that Jiminez drove his vehicle in a manner dangerous to the public, thereby causing the death of the passenger. The factual circumstances involved Jiminez driving for approximately 200 kilometres after taking over from a companion, during which time he allegedly fell asleep. The accident occurred on a winding, foggy section of road as Jiminez approached a right-hand curve.

The applicant's defence, as evidenced by his statements to police, suggested he may have fallen asleep at the wheel. He stated he had left the Gold Coast the previous night, had slept for about four hours before commencing the journey, and that the deceased had driven for the initial 400 kilometres. He took over driving around Coffs Harbour and recalled travelling at between 80 to 100 kph before apparently falling asleep and losing control of the vehicle. The Crown case relied heavily on these admissions to establish the dangerous manner of driving. The High Court was therefore considering whether these admissions, in the context of the accident circumstances, supported a finding of dangerous driving causing death.

Orders