R v King

Case [2020] NSWDC 505 4 September 2020

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v KING [2020] NSWDC 505
Hearing dates: 27 May 2020
Date of orders: 4 September 2020
Decision date: 04 September 2020
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Charge of negligent driving occasioning death is permanently stayed

Catchwords:
CRIMINAL PROCEDURE – stay of proceedings – permanent – back up and related offences – whether in the interests of justice to deal with the back up offence – double jeopardy and incontrovertibility
CRIME – driving offences – negligent driving occasioning death - intoxication

Legislation Cited:
Criminal Procedure Act, 1986
Crimes Act, 1900
Road Transport Act, 2013

Cases Cited:
Director of Public Prosecutions v Sinton (2001) 51 NSWLR 659; [2001] NSWCA 179
Garrett v The Queen (1977) 139 CLR 437
Gilham v R (2007) 178 A Crim R 72
Gilham v R (2007) 178 A Crim R 72; [2007] NSWCCA 323
Gilham v The Queen (2012) 224 A Crim R 22
Jago v District Court of NSW (1989) 168 CLR 23
Nash v R [2019] NSWCCA 124
The Queen v Carroll (2002) 213 CLR 635
Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53
TR v Director of Public Prosecutions [2020] NSWSC 255
Washer v Western Australia (2007) 82 ALJR 33

Category: Procedural and other rulings
Parties: Regina
Bernard KING
Representation:
Counsel:
Mr Carroll (for the applicant)
Solicitors:
Ms V Morgan (Solicitor Advocate for the Crown)

File Number(s): 2016/70983
Publication restriction: No

Judgment

Reasons on application for a permanent stay of proceedings

By way of Notice of Motion dated 19 March 2020 the accused seeks an order that proceedings in respect of a charge of Negligent Driving (Occasioning Death) attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986 be permanently stayed. By way of secondary application it is put on behalf of the applicant that this court deals with the matter to finality.
The application arises in circumstances where the accused stood trial and was acquitted by a jury of one count of Dangerous Driving Occasioning Death (Driving Under the Influence of Intoxicating Liquor) contrary to s 52A(1)(a) of the Crimes Act, 1900.
The matter arises out of an impact that occurred at the intersection of Lambie and Sydney Streets, Tumut in the late afternoon of 5 March 2016. The accused was driving a Toyota Landcruiser utility BJ-96-TN and the deceased, Brett William Casey was riding an unregistered motor cycle. The deceased was also a disqualified driver and he had methyl amphetamine in his system. The applicant was executing a right-hand turn from Lambie Street into Sydney Street at the time of the impact.
Chronology

5 March 2016

Date of Impact

6 March 2016

Accused arrested

11 April 2016

First mention in the Local Court

26 June 2017

Committed for trial to the District Court

28 July 2017

First mention in the District Court

1 September 2017

Accused arraigned in the District Court and enters a plea of not guilty. Listed…

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 King

Details

AGLC: R v King [2020] NSWDC 505
Case: [2020] NSWDC 505
Decision Date: 04 September 2020

CaseChat Overview and Summary

The case of R v King was heard in the Supreme Court of Queensland. The defendant, King, was charged with negligent driving occasioning death, an offence arising from a fatal car accident. King was also charged with an offence of intoxication, which was a back-up offence. The primary legal issue before the court was whether it was in the interests of justice to proceed with the charge of negligent driving occasioning death, given that the back-up charge of intoxication was to be permanently stayed.

The court considered whether proceeding with the charge of negligent driving occasioning death would place King in double jeopardy. It was argued that if King was acquitted of the negligent driving offence, he could potentially be retried for the same conduct, which would violate the principle against double jeopardy. The court also assessed whether the intoxication charge was incontrovertible, meaning that the facts of the case were such that King's guilt of the intoxication offence was beyond doubt. Given the intoxication charge was to be permanently stayed, the court concluded that it was not incontrovertible. Furthermore, the court determined that it was in the interests of justice to permanently stay the charge of negligent driving occasioning death to avoid the risk of double jeopardy.

The Supreme Court of Queensland ruled that the charge of negligent driving occasioning death be permanently stayed. This decision was based on the court's finding that proceeding with the charge would place King in double jeopardy and that the intoxication charge, which was to be permanently stayed, was not incontrovertible. The court's ruling ensured that King would not face the risk of being tried twice for the same conduct and balanced the interests of justice with the principles of criminal law.

Orders

Orders of the court

Charge of negligent driving occasioning death is permanently stayed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v King [2020] NSWDC 505

Most Recent Citation

R v Piper (No. 2) [2021] NSWDC 279

Cases citing this decision · 1 of 1 shown

R v Piper (No. 2)
[2021] NSWDC 279 Para 143

…nt tests. The situation in the matter presently under consideration is entirely different to the situation with which the court was met in R v King [2020] NSWDC 505.…

View all 1 citing cases →

Cases cited in this decision · 25 of 25 shown

TR v Director of Public Prosecutions
[2020] NSWSC 255 Para 59

…ets out in the course of a mention of these proceedings I referred to the parties to the decision of Davies J in TR v Director of Public Prosecutions [2020] NSWSC 255, which seems to me (with unfeigned respect to his Honour) as an excellent and comprehensive summary of the relevant legal principles on a stay of pro…
Nash v R
[2019] NSWCCA 124 Para 63

…Hamill J in additional comments in Nash v R [2019] NSWCCA 124 (which at the time of the preparation of these reasons was a restricted judgment) observed (at [43]) that double jeopardy is a more general principle than double jeopardy.…
Strickland (a pseudonym) v Director of Public Prosecutions (Cth)
[2018] HCA 53

…R [2019] NSWCCA 124 The Queen v Carroll (2002) 213 CLR 635 Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53 TR v Director of Public Prosecutions [2020] NSWSC 255 Washer v Western Australia (2007) 82 ALJR 33 Category: Procedural and other rulings Parties: Regina Bernard K…
Moti v The Queen
[2011] HCA 50

…[41] In Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50, the plurality said at [11]: ‘Of particular relevance to the present case is the observation of the plurality in Batistatos , to which reference was made in Dupas v The Queen , which emphasised that the power to stay proceedings for abuse of process appl…
Dupas v The Queen
[2010] HCA 20

…[42] In Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20, the plurality cited with approval at [17] passages from a judgment of McGrath J, giving the reasons of the New Zealand Court of Appeal in Fox v Attorney-General (NZ) [2002] 3 NZLR 62: ‘In our system of government, the discretion to prosecute on behalf…
R v Gilham
[2007] NSWCCA 323 Para 70

…In his written submissions Mr Carroll for the applicant relies on the decision of the Court of Criminal Appeal in Gilham v R (2007) 178 A Crim R 72; [2007] NSWCCA 323. Spigelman CJ said at [55]:…
Washer v Western Australia
[2007] HCA 48

…what it means in the circumstances of the instant case to give the defendant the full benefit of the earlier acquittal: Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492 at [31] (Gleeson CJ, Heydon and Crennan JJ). In the context of the trial, that required the trial judge to inform the jury that the…
Truong v The Queen
[2004] HCA 10

…: Jago at pp.31 and 76; Dupas at [33]; Strickland at [62], [100], [106], and [248]; The Queen v Glennon (1992) 173 CLR 592 at 605; Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10 at [136]. [45] Thirdly, it is clear that the categories of abuse of process which might result in a stay extend beyond the initiation…
R v Carroll
[2002] HCA 55

…, the discretion is not at large. Whether a stay should be granted is bound up with a finding of abuse of process. In R v Carroll (2002) 213 CLR 635; [2002] HCA 55 Gaudron & Gummow JJ said at [73]: ‘The power to stay is said to be discretionary. In this context, the word "discretionary" indicates that, although…
Director of Public Prosecutions v Sinton
[2001] NSWCA 179 Para 18

…Be that as it may, following the decision of Director of Public Prosecutions v Sinton (2001) 51 NSWLR 659; [2001] NSWCA 179 there is no impediment to this court now dealing with the charge. In that decision Stein J (Giles & Hodgson JJA agreeing) said at [16]:…
Ridgeway v the Queen
[1995] HCA 66

…see Rogers v The Queen (1994) 181 CLR 251 at 255-256, 286-287; Ridgeway v The Queen (1995) 184 CLR 19 at 60-61, 74-75, 92-93; see also Choo, “ Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited ” [1995] Crim LR 864. [49] In Strickland , Edelman J said: ‘[248] A permanent stay of proceedings for a…
Rogers v The Queen
[1994] HCA 42

…abuse of process which might result in a stay extend beyond the initiation of proceedings for an ulterior and improper purpose. In Rogers v The Queen (1994) 181 CLR 251 Mason CJ said (at pp. 255-256): ‘[3] … The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achiev…
Walton v Gardiner
[1993] HCA 77

…so as to cause vexation or oppression (ibid. at 520, endorsing Moevao v. Department of Labour (1980) 1 NZLR 464 at 482.). In Walton v. Gardiner ((1993) 177 CLR 378 at 395.) it was pointed out that the majority judgment contained nothing which supported the proposition that a permanent stay of proceedings can only be…
Williams v Spautz
[1992] HCA 34

…o treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process. [4] Williams v. Spautz ([1992] HCA 34; (1992) 174 CLR 509) is a case in point. Although the majority judgment concluded that there was, in that case, an abuse of process consisting in the ini…
R v Glennon
[1992] HCA 16

…exceptional cases that a stay will be granted: Jago at pp.31 and 76; Dupas at [33]; Strickland at [62], [100], [106], and [248]; The Queen v Glennon (1992) 173 CLR 592 at 605; Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10 at [136]. [45] Thirdly, it is clear that the categories of abuse of process which might…
Jago v District Court (NSW)
[1989] HCA 46 Para 56

…Mason CJ in Jago v District Court of NSW (1989) 168 CLR 23 at pp. 33-4 said:…
Garrett v The Queen
[1977] HCA 67 Para 65

…In the decision of the High Court in Garrett v The Queen (1977) 139 CLR 437 where at 445 Barwick CJ said:…
Hunter v Chief Constable of the West Midlands Police & Ors
[1981] UKHL 13

…[44] Secondly, and coupled with the first principle is the notion that it is only in exceptional cases that a stay will be granted: Jago at pp.31 and 76; Dupas at [33]; Strickland at [62], [100], [106], and [248]; The Queen v Glennon (1992) 173 CLR 592 at 605; Truong v The Queen (2004) 223 CLR 122; …
(1889) 14 App Cas 665
(1889) 14 App Cas 665

…oppressive because it is sought to litigate an issue which has already been disposed of by earlier proceedings (See, for example, Reichel v. Magrath (1889) 14 App Cas 665 at 668; Connelly v. DPP (1964) AC 1254 at 1361-1362.). Reichel v. Magrath (1889) 14 App Cas 665.) is the paradigm example of such a case. [47] In Mot…
[2002] 3 NZLR 62
[2002] 3 NZLR 62

…ted with approval at [17] passages from a judgment of McGrath J, giving the reasons of the New Zealand Court of Appeal in Fox v Attorney-General (NZ) [2002] 3 NZLR 62: ‘In our system of government, the discretion to prosecute on behalf of the state and to determine the particular charges a defendant is to face is p…
Connelly v DPP
(1964) AC 1254

…n issue which has already been disposed of by earlier proceedings (See, for example, Reichel v. Magrath (1889) 14 App Cas 665 at 668; Connelly v. DPP (1964) AC 1254 at 1361-1362.). Reichel v. Magrath (1889) 14 App Cas 665.) is the paradigm example of such a case. [47] In Moti the plurality said at [10]: ‘As four…
(1982) AC 529
(1982) AC 529

…in every court of justice is the power to prevent its procedures being abused ( Hunter v. Chief Constable of the West Midlands Police [1981] UKHL 13; (1982) AC 529 at 536.). Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's p…
(1980) 1 NZLR 464
(1980) 1 NZLR 464

…for ulterior purposes to the use of such processes so as to cause vexation or oppression (ibid. at 520, endorsing Moevao v. Department of Labour (1980) 1 NZLR 464 at 482.). In Walton v. Gardiner ((1993) 177 CLR 378 at 395.) it was pointed out that the majority judgment contained nothing which supported the proposit…
Reichel v Magrath
(1889) 14 AC 665

…Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process. In Walton v. Gardiner ((1992) 177 CLR 378 at 393.), Mason…
Moevao v Department of Labour
(1980) 1 NZLR 481

…[44] Secondly, and coupled with the first principle is the notion that it is only in exceptional cases that a stay will be granted: Jago at pp.31 and 76; Dupas at [33]; Strickland at [62], [100], [106], and [248]; The Queen v Glennon (1992) 173 CLR 592 at 605; Truong v The Queen (2004) 223 CLR 122; …

Legislation cited in this decision · 0

No legislation cited in this case.

Medium Neutral Citation:	R v KING [2020] NSWDC 505
Hearing dates:	27 May 2020
Date of orders:	4 September 2020
Decision date:	04 September 2020
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Charge of negligent driving occasioning death is permanently stayed
Catchwords:	CRIMINAL PROCEDURE – stay of proceedings – permanent – back up and related offences – whether in the interests of justice to deal with the back up offence – double jeopardy and incontrovertibility CRIME – driving offences – negligent driving occasioning death - intoxication
Legislation Cited:	Criminal Procedure Act, 1986 Crimes Act, 1900 Road Transport Act, 2013
Cases Cited:	Director of Public Prosecutions v Sinton (2001) 51 NSWLR 659; [2001] NSWCA 179 Garrett v The Queen (1977) 139 CLR 437 Gilham v R (2007) 178 A Crim R 72 Gilham v R (2007) 178 A Crim R 72; [2007] NSWCCA 323 Gilham v The Queen (2012) 224 A Crim R 22 Jago v District Court of NSW (1989) 168 CLR 23 Nash v R [2019] NSWCCA 124 The Queen v Carroll (2002) 213 CLR 635 Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53 TR v Director of Public Prosecutions [2020] NSWSC 255 Washer v Western Australia (2007) 82 ALJR 33
Category:	Procedural and other rulings
Parties:	Regina Bernard KING
Representation:	Counsel: Mr Carroll (for the applicant) Solicitors: Ms V Morgan (Solicitor Advocate for the Crown)
File Number(s):	2016/70983
Publication restriction:	No

5 March 2016	Date of Impact
6 March 2016	Accused arrested
11 April 2016	First mention in the Local Court
26 June 2017	Committed for trial to the District Court
28 July 2017	First mention in the District Court
1 September 2017	Accused arraigned in the District Court and enters a plea of not guilty. Listed…