King v The Queen

[2011] VSCA 69

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0890

TRENT KING

v

THE QUEEN

---

JUDGES	BUCHANAN, REDLICH and MANDIE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 February 2011
DATE OF JUDGMENT	17 March 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 69
JUDGMENT APPEALED FROM	R v King (Unreported, County Court of Victoria, Judge Douglas, Date of Conviction: 10 September 2008, Date of Sentence: 30 October 2008)

---

CRIMINAL LAW – Application for leave to appeal against conviction and sentence – Applicant convicted of culpable driving causing death – Whether judge failed to properly direct jury regarding elements of offences of culpable driving causing death and dangerous driving causing death – Whether sentence manifestly excessive – Applicant re-sentenced.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr D A Glynn	Balmer & Associates
For the Crown	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I agree with Mandie JA.

REDLICH JA:

1. I agree for the reasons given by Mandie JA that the application for leave to appeal against conviction should be refused.

1. In R v De Montero[1] this Court was faced with the same argument that a misdirection as to the elements of the statutory alternative of dangerous driving affected the jury’s assessment of the more serious charge of culpable driving.  In De Montero the complaint was that the effect of the judge’s direction on the alternative count was apt to conflate that offence with the offence of culpable driving, and so deprive the applicant of the jury’s fair consideration of the latter offence.  Here the complaint is that the errors had so diminished the seriousness of the alternative count that it was not a ‘realistic alternative’.  The direction on the culpable driving count was unexceptional, as it was in De Montero.  As the Court recognised in De Montero:[2]

Once the jury had concluded that it was satisfied of the applicant’s guilt on the more serious charge, the statutory alternative did not fall for consideration.  As is the invariable practice, the jury was asked how it ‘found’ the accused on the count on the presentment.  The jury was, therefore, not required to consider or return a verdict on the statutory alternative.

[1](2009) 198 A Crim R 68.

[2](2009) 198 A Crim R 68, [94] (citation omitted).

1. It is desirable that the content of the two offences be accurately stated, in part because the practical content of each offence may be informed not only by its elements being accurately described, but by the counterpoint of the content of the other offence.  That said, I agree with Mandie JA that there was no error of substance in the directions given.  Moreover, it has not been shown that there was any likelihood that anything that was said to be error in relation to the alternative offence could have affected the jury’s verdict on the count of culpable driving.

1. Despite the submission advanced on behalf of the respondent to the contrary, I see no…