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Kelly v The King

Kelly v The King

Case [2024] NSWCCA 101 17 June 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Kelly v R [2024] NSWCCA 101
Hearing dates: 8 May 2024; 3 June 2024
Date of orders: 17 June 2024
Decision date: 17 June 2024
Before: Bell CJ
Hamill J
Yehia J
Decision:
(1) Dismiss the appeal.
(2) Confirm the orders of the District Court.

Catchwords:
CRIMINAL APPEALS – District Court convicting of summary or back up offence after trial – appeal under ss 5AD and 5AA Criminal Appeal Act – appeal in strict sense – where error of law must be established – amended grounds of appeal – where appellant convicted of negligent driving occasioning death – appellant a police officer involved in pursuit of motorbike – whether judge erred in failing to determine whether she took into account course of driving – where judge referred to earlier driving but found negligence at the time of the collision – no substance to ground of appeal – whether judge erred in finding negligence where there was no evidence that appellant failed to keep a safe distance – ample evidence to justify finding – whether primary judge took into account an irrelevant consideration – police safe driving policy – appellant’s knowledge of driving in breach of part of policy and pursuit guidelines – whether judge did not refer to other breaches of the policy – whether judge failed to provide adequate reasons – judgment brief but provided amply adequate reasons

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 8(1)
Criminal Appeal Act 1912 (NSW), ss 5AA, 5AA(4), 5AA(7), 5AD, 5AD(1), 5AD(3)
Criminal Procedure Act1986 (NSW), ss 165-168
Road Rules 2014 (NSW), regs 287, 305
Road Transport Act 2013 (NSW), ss 117, 117(3)

Cases Cited:
Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301
Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; (2008) 188 A Crim R 82
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288
GS v R;Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618; [2022] NSWCCA 65
HD Projects Pty Ltd v SafeWork NSW [2022] NSWCCA 212
Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95
Parker v R [2023] NSWCCA 234
Poletti Corporation Pty Ltd v SafeWork NSW [2020] NSWCCA 243
Prineas v R [2018] NSWCCA 221
The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37

Category: Principal judgment
Parties: Matthew James Kelly (Appellant)
Rex (Respondent)
Representation:
Counsel:
J Glissan KC and D Nagle (Appellant)
S Lind (Respondent)
Solicitors:
Walter Madden Jenkins Solicitors (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/00295559
Publication restriction: This judgment has been redacted to comply with continuing non-publication orders relating to the…

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 Kelly v The King

Details

AGLC: Kelly v The King [2024] NSWCCA 101
Case: [2024] NSWCCA 101
Decision Date: 17 June 2024

CaseChat Overview and Summary

The appeal before the Court involves the conviction of the appellant, Kelly, for negligent driving occasioning death, following a trial in the District Court. The appellant, a police officer, was involved in a pursuit of a motorbike and collided with a victim, resulting in their death. The case was appealed to the higher court under sections 5AD and 5AA of the Criminal Appeal Act, focusing on whether there was an error of law that warranted an appeal in the strict sense.

The court was required to determine whether the District Court judge erred in failing to consider the entire course of the appellant's driving or if the judge adequately assessed the circumstances leading up to the collision. The appellant argued that the judge did not properly consider the police safe driving policy and pursuit guidelines. However, the court found that the judge did refer to the earlier driving and that the evidence was sufficient to justify a finding of negligence. Additionally, the court assessed whether the judge overlooked other breaches of the policy and whether the reasons provided for the judgment were adequate. Despite the brevity of the judgment, the court found that the reasons were sufficient.

The Court concluded that the appeal was without substance. The judge did not err in finding negligence, as there was ample evidence to support the decision. The court determined that the District Court judge's judgment was adequate in providing reasons for the decision. Therefore, the appeal was dismissed. The Court did not find any merit in the grounds of appeal and upheld the conviction of the appellant for negligent driving occasioning death.

Orders