CRIMINAL LAW - Conviction – Culpable driving causing death – Gross negligence – Directions to jury – Failure to relate law to facts of case – Failure to put defence case – Evidence of applicant’s state of undress when driving – Failure to warn jury against misuse of such evidence – Criticism of defence counsel’s address – Whether charge fair and balanced – Crimes Act 1958 s.318(2)(b).
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr G.M. Horgan, S.C.
Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant
Mr P.G. Priest, Q.C. Ms C. Burnside
Leanne Warren & Assoc.
ORMISTON, J.A.:
Having had the considerable benefit of reading the judgment of Charles, J.A. in draft form, I agree with what he there says, save for the relatively minor matters of emphasis to which I refer below.
In particular I agree explicitly with what he proposes as to the manner in which juries should hereafter be charged on counts of causing death by culpable driving when that count is based on driving “negligently”, pursuant to para.(b) of s.318(2) of the Crimes Act 1958 (“the Act”).[1] What there appears ought to be stated by way of explanation of the words appearing in that paragraph which in the ordinary course will have been read to the jury. What the learned judge said about the word “gross” was an improper direction to the extent only that, finally, in answer to a specific question from the jury, he tempered its express meaning by using the expression “a significant departure”, as explained by Charles, J.A.[2], but otherwise what the learned judge said, in effect by not earlier explaining or expanding upon the word “gross”, was in conformity with existing authority.[3] There would not have been a failure properly to direct the jury by reason of that wanted explanation; it is only that we now think that it is preferable and conducive to a better understanding of the meaning of paragraph (b) for judges in future to be not merely free, but ordinarily under an obligation, to give the proposed direction.
[1]See para.[46].
[2]See paras.[39]-[41].
[3]Cited in para.[42] of Charles, J.A.’s judgment.
Moreover I agree with the need to explain the meaning of the word “gross” in the context of paragraph (b) because it is likewise my experience that juries frequently have asked for an explanation of the meaning of the word “gross”, in that it seems that it is not a word now in common use except in its vernacular and imprecise sense. Ordinarily this Court ought not to change what in substance is an accepted direction which has been laid down by the highest court in this State, indeed here laid…
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
AGLC
R v De'Zilwa [2002] VSCA 158
Case
[2002] VSCA 158
Decision Date
CaseChat Overview and Summary
In the case of R v De'Zilwa, the applicant was convicted in the County Court of Victoria for culpable driving causing death, a serious offence under the Crimes Act 1958. The conviction arose from an incident in which the applicant's vehicle collided with a motorcycle, resulting in the death of the rider. The dispute primarily revolved around the adequacy of the trial judge's directions to the jury, the handling of specific evidence, and the fairness of the overall charge. The applicant appealed against the conviction and sentence on several grounds, including the trial judge's alleged failure to properly relate the law to the facts of the case, to adequately address the defence case, and to warn the jury against misusing particular evidence.
The legal issues before the court included whether the trial judge had failed to properly direct the jury on the applicable legal principles, particularly concerning gross negligence and the defence's case. The court also had to consider whether the judge's comments during the trial unfairly criticised the defence counsel's address and whether these comments impacted the fairness and balance of the charge to the jury. Additionally, the court examined whether the evidence of the applicant's state of undress at the time of the incident was properly handled and whether the jury was adequately warned against misusing this evidence.
In delivering the judgment, the court found that the trial judge did not adequately direct the jury on the applicable legal principles, particularly in relation to the concept of gross negligence and the defence's case. The judge's comments were deemed to have unfairly criticised the defence counsel, which could have influenced the jury's perception of the case. The court held that the trial judge failed to sufficiently warn the jury against misusing the evidence regarding the applicant's state of undress. These errors cumulatively affected the fairness and balance of the charge to the jury. Consequently, the appeal was allowed, the conviction was quashed, and the matter was remitted for a new trial.
The final orders of the court included the quashing of the applicant's conviction and the remitting of the matter for a new trial, ensuring that the trial judge would provide a fair and balanced charge to the jury, properly relate the law to the facts, and adequately address both prosecution and defence cases.