McPhillamy v The Queen - [2018] HCATrans 73

[2018] HCATrans 073

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S258 of 2017

B e t w e e n -
RICHARD JOHN McPHILLAMY
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL CJ
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 APRIL 2018, AT 9.46 AM

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant with my learned friend, MR S.J. BUCHEN. (instructed by Proctor & Associates)

MS K.N. SHEAD, SC: May it please the Court, I appear for the respondent with my learned friend, MS B.K. BAKER. (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL CJ: Yes, Mr Odgers.

MR ODGERS: Your Honours, we seek an extension of time in this matter.

KIEFEL CJ: Is there any objection?

MS SHEAD: There is no objection.

KIEFEL CJ: Yes, you have that extension.

MR ODGERS: Thank you, your Honour. Your Honours, this application raises again the issue of the admissibility of tendency evidence under the uniform evidence law, but we have drawn particular attention to section 101(2) which has not been a subject of a judgment of this Court.

KIEFEL CJ: The most recent decision in Hughes did not go into this section?

MR ODGERS: That is correct.

KIEFEL CJ: That is really your point?

MR ODGERS: I will come to 101(2) in a moment but before I do, your Honours, we do contend that the majority of the court was wrong to hold that the tendency evidence in this case had significant probative value. Not surprisingly, we rely heavily on the detailed judgment of Justice Meagher. We say his analysis was entirely consistent with Hughes.

EDELMAN J: Just before you get into that, is the prism through which we are looking at that issue the question of whether there is a miscarriage of justice or whether there is a substantial miscarriage of justice? In other words, is your submission that the absence of reasons necessarily means there was a miscarriage of justice so that this issue only gets considered at the proviso stage?

MR ODGERS: We certainly argued that below. Justice Meagher did not feel it necessary to go to that stage because he considered that ground 2 should be upheld, there was a miscarriage of justice, and clearly he thought that it was not a case for the application of the proviso. We put our argument in different ways below. We will put it in different ways in the Court if we are granted leave.

Certainly we would say the absence of reasons, both at trial and in the Court of Criminal Appeal - but that is not relevant to your Honour’s question, I appreciate that – but the absence of reasons means that ultimately it was a question of substantial miscarriage. I think that is right.

But ultimately the question turned on admissibility. Was the evidence admissible? Justice…

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.

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Details

Case: [2018] HCATrans 73
Decision Date

CaseChat Overview and Summary

McPhillamy appealed to the High Court of Australia against his conviction for the offence of dangerous driving occasioning death. The appeal concerned the interpretation and application of section 52(1) of the *Road Transport (General) Regulation 2013* (NSW), which creates the offence of dangerous driving occasioning death.

The central legal issue before the High Court was whether the prosecution had proven beyond reasonable doubt that the appellant's driving was dangerous within the meaning of the relevant legislation. Specifically, the Court had to consider the elements of the offence and the standard of proof required to establish that the appellant's conduct posed a risk of death or serious injury to other road users.

The High Court allowed the appeal, quashing the conviction. Their Honours held that the evidence led by the prosecution did not establish beyond reasonable doubt that the appellant's driving was dangerous. The Court emphasised that the assessment of dangerous driving requires a consideration of the objective circumstances of the driving and whether those circumstances created a risk of death or serious injury. In this instance, the Court found that the evidence did not support such a conclusion.

Orders