Kennett v The King - [2022] VSCA 202

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0070

DALE LESLIE KENNETT	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2022
DATE OF JUDGMENT:	19 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 202
JUDGMENT APPEALED FROM:	DPP v Kennett (Unreported, County Court of Victoria, 12 August 2021, Judge Dalziel)

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CRIMINAL LAW – Appeal – Conviction – Dangerous driving causing death – Judge misdirected jury on causation – Verdict unreasonable and cannot be supported by the evidence – Appeal allowed – Judgment of acquittal entered.

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Counsel
Applicant:		Mr D Sala
Respondent:		Mr C Boyce KC
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

On 12 August 2021, a jury empanelled in the County Court to try the applicant found him guilty of one charge of dangerous driving causing death[1] (charge 1), but acquitted him of failing to stop after a motor vehicle accident[2] (charge 2). Following a plea, on 3 March 2022 the judge sentenced the applicant to be imprisoned for three years and six months, and fixed a non-parole period of two years and six months.
[1]Crimes Act 1958, s 319(1). The maximum penalty is 10 years’ imprisonment.
[2]Road Safety Act 1986, s 61,
The applicant now seeks leave to appeal against his conviction, relying on four grounds as follows:[3]
1    A substantial miscarriage of justice occurred as a result of self-defence not being left to the jury.
2    A substantial miscarriage of justice occurred by virtue of the admission of expert evidence by Doctor Jason Schreiber about Methamphetamine.
3    The verdict of the jury on charge one is unreasonable and/or cannot be supported by the evidence.
4    A substantial miscarriage of justice occurred as a result of the manner in which the Learned Trial Judge directed the jury in respect of the issue of causation (the third element of charge 1).
[3]Leave was granted to add ground 4 on the hearing of the application.
Very fairly, the respondent’s counsel conceded that there is substance in grounds 3 and 4. Indeed, the genesis of ground 4 undoubtedly lies in the scrupulously fair written submissions made by the respondent’s counsel in response to the applicant’s written case.
In our view, the respondent’s concessions were properly made. We consider that leave to appeal against conviction should be granted and the appeal allowed. The applicant’s conviction for dangerous driving causing death should be set aside, and a judgment of acquittal entered in its stead. Our reasons follow.

The factual background

Evidence in the applicant’s trial disclosed that, during the evening of 9 March 2020, the applicant visited a friend living at 3 Henry Court, Hamilton. At some point, he decided to sleep in his Nissan Pulsar motor vehicle, which was parked on the front lawn of the premises.
At about 2.45 am on 10 March 2020, a taxi driven by John Mirtschin (for convenience,…

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 Kennett v The King

Details

AGLC: Kennett v The King [2022] VSCA 202
Case: [2022] VSCA 202
Decision Date: 19 September 2022

CaseChat Overview and Summary

In the case of Kennett v The King, the defendant, Kennett, appealed against his conviction for dangerous driving causing death. The matter was heard in the High Court of Australia. The incident in question involved a fatal car accident, and Kennett was found guilty by the jury. The primary focus of the appeal was whether the judge had correctly directed the jury regarding the element of causation in relation to the offence.

The central legal issue the court had to address was whether the trial judge had properly guided the jury on the causation aspect of the dangerous driving charge. The defendant's argument was that the judge had misdirected the jury, leading to an unreasonable verdict that was not supported by the evidence presented. The court had to determine if the trial judge’s directions to the jury were adequate and whether any misdirection had occurred.

The court found that the trial judge did indeed misdirect the jury on the issue of causation. The judge's directions failed to sufficiently address the requirements for establishing causation in the context of dangerous driving causing death. Consequently, the verdict was deemed unreasonable and not supported by the evidence. The court concluded that the misdirection was significant enough to warrant the allowance of the appeal. As a result, the conviction was quashed, and a judgment of acquittal was entered in favour of the defendant.

The final orders of the court involved the quashing of the conviction for dangerous driving causing death and the entry of a judgment of acquittal for the defendant, Kennett. The court's decision underscored the importance of proper jury direction in criminal trials, particularly in relation to causation in cases involving serious charges such as dangerous driving causing death.

Orders