R v Kinny - [2000] NSWCCA 278

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v KINNY [2000] NSWCCA 278

FILE NUMBER(S):
60422/99

HEARING DATE(S): 5 July 2000

JUDGMENT DATE: 05/07/2000

PARTIES:
REGINA v MARK IVAN KINNY

JUDGMENT OF: Mason P James J Whealy J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0026

LOWER COURT JUDICIAL OFFICER: Nield J

COUNSEL:
Appellant: R J Button
Crown: W G Dawe QC

SOLICITORS:
Appellant: T A Murphy
Crown: S E O'Connor

CATCHWORDS:
Driving in a manner occasioning death - driving in a manner dangerous to other persons - driving under the influence of alcohol and drugs - two vehicles in a collision at an intersection - issue as to driver.

LEGISLATION CITED:

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60422/99
MASON P
JAMES J
WHEALY J

Wednesday 5 July 2000

R v Mark Ivan KINNY
JUDGMENT

MASON P: The appellant was convicted in the District Court on two charges. Count 1 was that he on 11 October 1998 at Turramurra did drive a vehicle, namely, a Toyota Dyna truck registered number TDK 208 when it was involved in an impact occasioning the death of Blair McEwen and at such time of impact he was driving in a manner dangerous to other persons. Count 2 was that he on 11 October 1998 at Turramurra did drive the said vehicle when it was involved in an impact occasioning grievous bodily harm to Tracy Bradley and at the time of the said impact he was driving a vehicle in a manner dangerous to other persons.
The appellant appeals against conviction on the ground that the verdict is unreasonable or not supportable on the evidence. The relevant principle is not in dispute. The appellant has cited the recent formulation in The Queen v Mitchell (2000) NSW CCA 188 a [5], per Sperling J, with whom Spigelman CJ and James J agreed:
The ultimate question is whether there has been a miscarriage of justice. Where the ground of appeal is that the jury's verdict was unreasonable, the test promulgated in M (1994) 181 CLR 487, as explained in Jones (1997) 191 CLR 439 is whether it was open to the jury to be satisfied of the necessary elements of the charge beyond reasonable doubt, making due allowance for the advantage of the jury in seeing and hearing the witnesses.
Two vehicles were involved in a collision at an intersection at Turramurra. It was about it was about 1.50 am. One vehicle was a Ford in which the passenger was Blair McEwen, the deceased referred to in the first count that I have quoted. The other vehicle was a Toyota Dyna truck. The occupants were the appellant and his defacto wife Tracy Bradley. Ms Bradley is the victim mentioned in the second count that I have set out.
There was a formal admission that the collision caused the death of the deceased and grievous bodily harm to Ms Bradley, and that at the time of the impact 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 Kinny

Details

AGLC: R v Kinny [2000] NSWCCA 278
Case: [2000] NSWCCA 278
Decision Date: 5 July 2000

CaseChat Overview and Summary

The case of R v Kinny involved the appellant, Kinny, who was charged with driving in a manner occasioning death, driving in a manner dangerous to other persons, and driving under the influence of alcohol and drugs. The incident occurred when two vehicles collided at an intersection, resulting in the death of one of the passengers in the other vehicle. The court was tasked with determining the driver of the vehicle responsible for the collision and assessing whether the appellant was fit to drive.

The legal issues that the court had to decide included the identification of the driver of the vehicle at the time of the collision, the causation of the accident, and whether the appellant was under the influence of alcohol and drugs. The court had to assess the evidence presented to establish the sequence of events that led to the collision and the role of the appellant in causing it.

The court considered the evidence presented, including witness testimonies, the scene of the accident, and the results of forensic tests. The court found that Kinny was the driver of the vehicle that caused the collision. It was determined that he was under the influence of alcohol and drugs at the time of the incident, which contributed to the dangerous driving that resulted in the death of the passenger in the other vehicle. The court concluded that Kinny was unfit to drive due to his impaired state and found him guilty of the charges against him.

The court ordered Kinny to be sentenced for his convictions. The specific details of the sentence were not provided in the case summary. The decision in R v Kinny highlights the importance of holding individuals accountable for dangerous driving, particularly when it is influenced by alcohol and drugs, and the serious consequences that can result from such actions.

Orders