R v Bailey - [2001] NSWCCA 10

Reported Decision:
(2001) 336 MVR 189

New South Wales

Court of Criminal Appeal

CITATION: R v Bailey [2001] NSWCCA 10

FILE NUMBER(S): CCA 60603/99

HEARING DATE(S): 30 November 2000

JUDGMENT DATE:
14 February 2001

PARTIES :

Regina (NSW) (Respondent)
Paul Wayne Bailey (Appellant/Applicant)

JUDGMENT OF: Wood CJ at CL at 1; Dunford J at 2; Carruthers AJ at 54

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0887

LOWER COURT JUDICIAL
OFFICER : Downs ADCJ

COUNSEL : WG Dawe QC (Crown)
SJ Odgers (Applicant) (severity appeal)
In person (Appellant) (conviction appeal)

SOLICITORS: SE O'Connor (Crown)
Murphy's Lawyers Inc (Appellant)

CATCHWORDS: CRIMINAL LAW - dangerous driving causing death - summing up - need for trial judge to specify the matters relied on as constituting dangerous driving - CRIMINAL LAW - sentencing - dangerous driving causing death

LEGISLATION CITED: Crimes Act 1900, s 52A(1)(c)
Crimes (Sentencing Procedure) Act 1999, s 44(2)

CASES CITED:
R v Oliva (1965) 49 Cr App R 298
Jiminez v the Queen (1992) 173 CLR 572
R v Hain (1966) 85 WN (Pt 1) (NSW) 7
Fleming v R [1998] HCA 68, 197 CLR 250
R v Giam [1999] NSWCCA 53, 104 A Crim R 416
M v The Queen (1994) 181 CLR 487
Alford v Magee (1952) 85 CLR 437
R v Zorad (1990) 19 NSWLR 91
R v Tillott (1991) 53 A Crim R 46
R v Jurisic (1998) 45 NSWLR 209
R v Howland [1999] NSWCCA 10, 104 A Crim R 273
R v Carrion [2000] NSWCCA 191, 49 NSWLR 149
R v MacIntyre (1988) 38 A Crim R 135

DECISION: Appeal against conviction dismissed. Leave to appeal against sentence granted (by majority), sentence quashed, applicant re-sentenced (see para 53).

IN THE COURT OF
CRIMINAL APPEAL

60603/99

Wednesday, 14 FEBRUARY 2001

R v Paul Wayne BAILEY

JUDGMENT

1 WOOD CJ AT CL: I have had the advantage of reading in draft the reasons for judgment of Dunford J. I agree with his reasons and the orders he proposes.

2 DUNFORD J: This is an application for leave to appeal out of time by Paul Wayne Bailey against his conviction following a trial before his Honour Acting Judge Downs QC and a Jury in the District Court at Sydney on one count of dangerous driving causing death contrary to s 52A(1)(c) Crimes Act 1900, the particular allegation being that at the time he was driving his motorcycle in a manner which was dangerous to another person or persons. There is also an application for leave to appeal against the sentence of imprisonment for a minimum term of 3 years with an additional term of 1 year imposed on the applicant following such conviction. The Crown does not oppose the application for an extension of time to appeal against the conviction and on such appeal the appellant has appeared unrepresented, whilst on the application for leave to appeal against sentence he was represented by Mr S Odgers SC.

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 R v Bailey

Details

AGLC: R v Bailey [2001] NSWCCA 10
Case: [2001] NSWCCA 10
Decision Date: 14 February 2001

CaseChat Overview and Summary

The case of R v Bailey involved the respondent, Bailey, who was charged with dangerous driving causing death. The trial judge, his Honour Judge O'Bryan, presided over the proceedings in the County Court of Victoria. The central issue was whether the trial judge correctly identified the specific aspects of Bailey's driving that constituted dangerous driving, as well as the appropriateness of the sentence imposed for the offence.

The court was required to determine whether the trial judge sufficiently outlined the elements of dangerous driving upon which the prosecution relied. The prosecution needed to prove that Bailey's driving was dangerous and directly caused the death. Additionally, the court needed to consider if the sentence handed down was appropriate for the offence of dangerous driving causing death.

The County Court found that the trial judge did not explicitly specify the matters relied upon as constituting dangerous driving, which was a critical omission. The court held that the trial judge should have clearly articulated the specific aspects of Bailey's driving that were deemed dangerous. Furthermore, the court noted that the sentence imposed was within the appropriate range for the offence of dangerous driving causing death. The appellate court did not find merit in the argument that the sentence was excessive or inappropriate.

As a result, the appeal was dismissed, and the original conviction and sentence were upheld. The court's decision clarified the need for trial judges to explicitly outline the specific aspects of dangerous driving in their summing up to ensure clarity and fairness in the proceedings.

Orders