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Omigie v The King

Omigie v The King

Case [2024] NSWCCA 205 11 November 2024

Appeal

Breach of Contract

Misconduct by Driving

Negligence

Duress & Necessity

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Omigie v R [2024] NSWCCA 205
Hearing dates: 26 July 2024
Date of orders: 11 November 2024
Decision date: 11 November 2024
Before: Harrison CJ at CL at [1];
Dhanji J at [101];
Rigg J at [102]
Decision:
(1) Extend the time within which to bring the appeal.
(2) Grant leave to appeal.
(3) Dismiss the appeal.

Catchwords:
CRIME – appeal – appeal against conviction – unreasonable verdict – single driving incident that resulted in a series of collisions that caused injury and death – driving in a manner dangerous – misconduct by driving – failure to stop and render assistance – where applicant’s vehicle did not come into contact with another vehicle – where evidence that other drivers avoided the applicant – whether the applicant was “involved in an impact occasioning death” within the meaning of s 52A(6) Crimes Act 1900 (NSW) – whether verdicts open on the evidence
CRIME – appeal – appeal against conviction – inconsistent verdicts – acquittal on one count of misconduct by driving pursuant to s 53 Crimes Act 1900 (NSW) – inability to reach verdict on a separate count of misconduct by driving pursuant to s 53 Crimes Act 1900 (NSW) – where the facts of the misconduct charges were the same facts that led to a conviction for dangerous driving pursuant to s 52A Crimes Act 1900 (NSW) – whether verdicts inconsistent

Legislation Cited:
Crimes Act 1900 (NSW) ss 52A, 52AB, 53

Cases Cited:
AH v R [2019] NSWCCA 152
Baden-Clay v The Queen (2016) 258 CLR 308; [2016] HCA 35
Barney v R [2023] NSWCCA 85
Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Jiminez v R (1992) 173 CLR 572; [1992] HCA 14
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
PA v R [2015] NSWCCA 18; (2015) 253 A Crim R 154
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Saunders [2002] NSWCCA 362; (2002) A Crim R 104
R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
Reyne (a pseudonym) v R [2022] NSWCCA 201; (2022) 302 A Crim R 297
Saunders v R [2022] NSWCCA 273
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
SM v R [2022] NSWCCA 13
Smith v R [2023] NSWCCA 118
Still v R [2010] NSWCCA 131
Walker v R [2019] NSWCCA 4

Category: Principal judgment
Parties: Francis Omigie (Appellant)
Rex (Respondent)
Representation:
Counsel:
J Cohen (Appellant)
E Nicholson (Respondent)
Solicitors:
Eddy Neumann Lawyers (Appellant)
Office of…

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 Omigie v The King

Details

AGLC: Omigie v The King [2024] NSWCCA 205
Case: [2024] NSWCCA 205
Decision Date: 11 November 2024

CaseChat Overview and Summary

Omigie was convicted of dangerous driving causing death, while also being acquitted of one count of driving misconduct and failing to reach a verdict on another count of driving misconduct. The Crown appealed against the acquittal on one count and the jury's failure to reach a verdict on the other. The court had to determine whether the verdicts were open on the evidence. The court examined the legal definitions and requirements for each charge under the Crimes Act 1900 (NSW), considering whether the applicant's actions constituted the statutory elements for each offence. The court examined whether the applicant's vehicle was involved in an impact occasioning death, and whether the verdicts were inconsistent given the identical facts underlying each charge. The court concluded that the jury's verdicts were open on the evidence, and there was no inconsistency in the verdicts as the applicant was acquitted of one charge and the jury could not reach a verdict on the other. The appeal against the acquittal was dismissed, and the inconsistent verdicts were accepted as legally permissible.

The court's reasoning hinged on the interpretation of statutory language and the jury's role in determining factual questions. The court held that the jury's determination of whether the applicant's vehicle was involved in an impact occasioning death was a matter of fact, and the jury was entitled to acquit the applicant of one count while failing to reach a verdict on another. The court further held that the verdicts were not inconsistent as they were based on the same set of facts, and the jury's inability to reach a verdict on one charge did not affect the validity of the acquittal on another. The court concluded that the jury's verdicts were open on the evidence, and there was no legal error in the jury's decision-making process. The applicant's acquittal on one count of misconduct by driving was upheld, and the jury's failure to reach a verdict on another count was accepted as a valid outcome.

Orders