R v Dickman - [2016] HCATrans 283

[2016] HCATrans 283

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M249 of 2015

B e t w e e n -
THE QUEEN
Applicant
and
GLYN DAVID DICKMAN
Respondent
Application for special leave to appeal

FRENCH CJ
KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 18 NOVEMBER 2016, AT 9.37 AM

MR G.J.C. SILBERT, QC: May it please the Court, I appear with my learned friend, MR B.L. SONNET for the appellant. (instructed by the Office of Public Prosecutions)

MS L.J. CHAPMAN, SC: May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the respondent. (instructed by Barbaro Thilthorpe Lawyers)

FRENCH CJ: Thank you. Yes, Mr Silbert.

MR SILBERT: If the Court pleases, may I commence by addressing grounds 1, 2 and 3 each of which attack the majority’s finding that the trial judge should have exercised his discretion to exclude the identification evidence based on the photographic array on 23 August 2011, pursuant to section 137 of the Evidence Act. The Court of Appeal decision was delivered on 23 November 2015. Prior to the decision of this Court in IMM, which was delivered on 14 April 2016, that decision resolved the conflict between Dupas and Shamouil in favour of Shamouil. It follows that the Court of Appeal’s approach to the section 137 balancing exercise was based on a false premise to the extent that it factored reliability into its equation and it was clearly wrong based on the IMM decision.

KIEFEL J: Mr Silbert, even without IMM, would you say that the Court of Appeal’s approach to the assessment of risk was a correct one?

MR SILBERT: No, your Honour, no your Honour. They certainly were premised on the erroneous premise that when undertaking – at appeal book page 112 to 113:

When undertaking the required balancing exercise, the judge is not required to assume that the reliability of the impugned evidence will be accepted.

GORDON J: It is more basic than that though, is it not? Is there not a difficulty, in a sense, that there was a whole lot of other evidence that had to be considered in context?

MR SILBERT: Absolutely, your Honour, and I was coming to that. The identification evidence here upon which the Court’s decision rested and upon which a new trial was ordered was, effectively, disavowed by the Crown as part of its case. The Crown case was a circumstantial case resting on a bundle of evidence and, effectively, the identification evidence, as I say, was - your Honours do not have the final address of the prosecutor but it was disavowed three times, and Justice Whelan actually remarks on that in his decision at – I will take your Honours to it – page 90 of the appeal book, paragraph 23:

As matters transpired in the trial, far from 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.

Keep reading for free

Create a free CaseChat account to read R v Dickman and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] HCATrans 283
Decision Date

CaseChat Overview and Summary

The case of *R v Dickman* concerned an appeal by the Crown against a decision of the Queensland Court of Appeal which had quashed the conviction of the respondent, Mr Dickman, for the offence of dangerous driving occasioning death. The dispute centred on the interpretation and application of the *Criminal Code* (Qld) in relation to the elements of the offence.

The High Court was required to determine whether the Queensland Court of Appeal had erred in its interpretation of the *Criminal Code* concerning the mental element required for the offence of dangerous driving occasioning death. Specifically, the Court had to consider whether the offence required proof of a subjective appreciation of danger by the driver, or if an objective standard of what a reasonable person would consider dangerous was sufficient.

The High Court held that the offence of dangerous driving occasioning death under the *Criminal Code* (Qld) does not require proof of the driver's subjective appreciation of the danger posed by their driving. Instead, the Court affirmed that the standard is an objective one, focusing on whether the driving was objectively dangerous, irrespective of the driver's personal awareness of the risk. The Court reasoned that the legislative intent behind such offences is to protect the public from objectively dangerous conduct, and that a subjective test would unduly narrow the scope of criminal liability.

The High Court allowed the Crown's appeal, quashed the order of the Queensland Court of Appeal, and remitted the matter to the Court of Appeal to determine the remaining grounds of appeal.

Orders