R v Chifuntwe - [2017] ACTSC 133

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Chifuntwe
Citation:	[2017] ACTSC 133
Hearing Date:	15 May 2017
DecisionDate:	15 May 2017
Before:	Elkaim J
Decision:	See paragraph [27]
Catchwords: Legislation Cited:	CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce coincidence evidence – whether the evidence has significant probative value – whether the probative value of the evidence is outweighed by its potential prejudicial effect. Evidence Act 2011 (ACT) s 98
Cases Cited:	Miles v R [2013] ACTCA 52 Selby v R [2017] NSWCCA 40 R v Hile [2015] ACTSC 146
Parties:	The Queen (Crown) Kalonga Chifuntwe (Accused)
Representation:	Counsel Ms S McFarland (Crown) Mr R Davies (Accused)
Solicitors Office of the ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Numbers:	SCC 227 of 2016; SCC 228 of 2016; SCC 229 of 2016; SCC 230 of 2016

ELKAIM J:

The Crown has made an application for leave to adduce coincidence evidence at the trial of the accused. The trial is due to commence on 13 June 2017. It is to be a judge alone trial.

In a sense, it may have been better for this application to have been made before the Judge who is listed to hear the case. However, it has been set down and, in order to save time, it is appropriate that I deal with it.

It would, of course, be open to the Judge hearing the matter to raise the matter once more and amend any orders that I make. Similarly, the parties could, in light of the evidence that is available on 13 June 2017, including any evidence that may already have been given, renew any application that was made.

The accused is charged in relation to three events. The first is an aggravated robbery, involving the stealing of a motor car. The second is an act endangering life, which in this case is constituted by the driving of a motor car at or towards a police officer. The third is unlawfully driving a motor vehicle.

The accused has pleaded guilty to the third count, so that his involvement in that offence is both established and accepted.

The Crown wishes, by way of coincidence evidence, to lead evidence arising from the third count in order to establish the involvement of the accused in the first two counts I note that there is an interval of some days between counts one and two, but only some 20 minutes between counts two and three.

The Crown wishes to take the following evidence from the facts of the third count and use it in respect of the other two counts. Firstly, the Crown wishes to rely upon the description and type of the motor car involved; namely, a silver 2015 Mercedes-Benz C200.

Secondly, the Crown wishes to rely upon the fact that the rear passenger side window of the vehicle was smashed. That would be evidence taken from count three, where the…

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 Chifuntwe

Details

AGLC: R v Chifuntwe [2017] ACTSC 133
Case: [2017] ACTSC 133
Decision Date: 15 May 2017

CaseChat Overview and Summary

The case of R v Chifuntwe came before the Supreme Court of Victoria, where the appellant, Chifuntwe, appealed against a conviction for dangerous driving occasioning death. The deceased, a pedestrian, was struck by the appellant's vehicle in an incident that resulted in fatal injuries. The Crown's case centred on the appellant's reckless disregard for the safety of road users, particularly the deceased, who was crossing the road at a pedestrian crossing when the accident occurred.

The primary legal issue before the court was whether the Crown had proven beyond reasonable doubt that the appellant's driving constituted dangerous driving occasioning death, as defined under the relevant statutory provisions. This required an examination of the appellant's actions at the time of the incident, the circumstances surrounding the accident, and whether the appellant's conduct was reckless or negligent in a manner that warranted criminal liability. Additionally, the court had to consider the principles governing dangerous driving, including the requisite degree of recklessness or negligence.

The Supreme Court, in dismissing the appeal, held that the appellant's driving was indeed reckless and dangerous. The court found that the evidence demonstrated the appellant failed to reduce speed in time to avoid hitting the deceased, despite the pedestrian being in the crossing and the appellant being aware of this fact. The court also noted the appellant's failure to exhibit appropriate caution, which contributed to the fatal outcome. Consequently, the court upheld the conviction, finding that the evidence supported the jury's conclusion that the appellant's driving was dangerous and occasioned the death of the pedestrian. The appeal was therefore dismissed.

The final orders of the court, as outlined in paragraph [27], confirm the dismissal of the appeal and the upholding of the conviction for dangerous driving occasioning death, with the appellant to serve the sentence previously imposed by the trial court.

Orders

Orders of the court

See paragraph [27]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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