R v Heron - [2003] VSCA 76

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 63 of 2002

THE QUEEN
	v.
MARK RAYMOND HERON

---

JUDGES:	CHARLES, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 June 2003
DATE OF JUDGMENT:	19 June 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 76

---

Criminal law - Culpable driving - Charge to jury given before decision in R. v. De'Zilwa [2002] VSCA 158 - Explanation of gross negligence required in the circumstances of the case - Causation - Issue whether the culpable element in the driving caused death wrongly taken away from jury.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr P.G. Priest, Q.C. with Mr M.J. Croucher	Leanne Warren & Assoc.

CHARLES, J.A.:

I have had the advantage of reading the reasons for judgment prepared by Buchanan, J.A., and, subject to the following, agree that the appeal must be allowed for the reasons given by his Honour.

I entirely agree that in R. v. De Zilwa[1], the Court did not intend to establish a statement of law binding on judges conducting trials before the decision in that case. The Court was, as Winneke, P. said in R. v. Scott[2], intending to achieve a modification of the standard directions in cases where culpable driving is alleged under s.318(2)(b) of the Crimes Act 1958, and to give greater assistance to juries in the manner suggested by Buchanan, J.A.[3]
[1][2002] VSCA 158.
[2][2003] VSCA 55 at para.[19].
[3]At [18].

In the present case the allegation that the applicant drove negligently was based upon the speed at which his car was travelling. As Buchanan, J.A. points out, the estimates given of the speed of the car varied dramatically and it would have been open to the jury to conclude that the speed was anywhere between 90 kph (the applicant’s own version) and 140 kph (the higher estimate given by the police expert). Two civilian eyewitnesses used the figure 95 kph in their evidence. If the jury were not satisfied beyond reasonable doubt that the applicant was travelling at more than 95 kph, on a section of road where the speed limit was 80 kph, I very much doubt that the applicant’s driving (although negligent and in breach of the Road Safety Regulations) approached the level of negligence sufficient to warrant the intervention of the criminal law, or a verdict of manslaughter. In my view the jury, in this unusual case, should have been given a direction such as that suggested in De Zilwa[4] to enable them adequately to consider the applicant’s guilt or innocence. I agree in particular with what Buchanan, J.A. has written in paragraphs [18]-[19].
[4][2002] VSCA 158 at [46].

I also agree, with respect, that the judge in his directions may have left the

jury thinking that the only issue was whether the applicant’s driving was negligent to a gross degree, thus taking away from the jury the issue whether 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 Heron

Details

AGLC: R v Heron [2003] VSCA 76
Case: [2003] VSCA 76
Decision Date: 19 June 2003

CaseChat Overview and Summary

The case of R v Heron involved the accused, Heron, who was charged with culpable driving causing death. The case was heard in a court of criminal jurisdiction in Victoria. The dispute centred around the interpretation and application of the law regarding culpable driving, specifically whether the jury had been correctly directed on the elements of gross negligence and causation in the circumstances of this case. The court was tasked with determining whether the trial judge had erred in the charge given to the jury, particularly in light of the decision in R. v. De'Zilwa [2002] VSCA 158, which was decided after the trial but before the appeal.

The legal issues before the court were whether the trial judge had sufficiently explained the concept of gross negligence to the jury and whether the issue of causation had been properly left to the jury's consideration. The accused argued that the trial judge had failed to provide an adequate explanation of gross negligence and had effectively removed the causation issue from the jury by implying that if they found the accused not guilty of reckless driving, they could not find him guilty of culpable driving. The prosecution contended that the charge given was sufficient and that the jury had been appropriately directed on both gross negligence and causation.

The court held that the trial judge's charge to the jury did not adequately explain the concept of gross negligence, particularly in the context of the circumstances of this case. The court found that the trial judge had not sufficiently distinguished between reckless driving and culpable driving, which led to confusion regarding the culpability required for the offence. Furthermore, the court determined that by implying that a finding of not guilty of reckless driving precluded a finding of culpable driving, the trial judge had wrongly removed the issue of causation from the jury. As a result, the court quashed the conviction and ordered a retrial.

The final orders of the court were to quash the conviction, order a retrial, and direct that in the retrial, the trial judge must provide a clear and comprehensive explanation of gross negligence and ensure that the issue of causation is appropriately left to the jury's consideration.

Orders