R v Miletic - [2006] NSWDC 114

CITATION: R V Miletic [2006] NSWDC 114

HEARING DATE(S): 07/04/06,29/05/06,28/07/06,20/09/06

JUDGMENT DATE:
2 November 2006

JUDGMENT OF: Williams DCJ at 1

DECISION: Offence proved; Convicted; Section 9 Bond

CATCHWORDS: Negligent Driving Causing Death - Back up Charge to DMD causing death - Acquitted of principal charge - Interests of justice - Same facts and allegation of negligence - Driver falling asleep - Distinction between DMD and Negligent driving

LEGISLATION CITED: Criminal Procedure Act 1986 s166, s167(1A), s169(1)
Road Transport (Safety & Traffic Management) Act 1999 s42

CASES CITED: Dennis v Watt 60 WN 7
R v Kroon (1990) 52 A Crim R 15
Jiminez v R (1992) 173 CLR 572
McBride v The Queen (1966-67) 40 ALJR 57

PARTIES: Regina
Mario Miletic

FILE NUMBER(S): 05/41/0111

COUNSEL: Crown: Mr R Willis
Defence: Mr J Pappas

SOLICITORS: DPP Wollongong
Ms Foliaki-Singh

- 1 -

1 Preliminary issue

2 Mr Miletic was tried before me and a jury in Queanbeyan on 20th February 2006 on a charge of Drive in a Manner Dangerous causing death, the allegation being that he went to sleep at the wheel. He was acquitted but there was a back up charge of “negligent driving causing death”. This charge is now before me by virtue of s166 of the Criminal Procedure Act.

3 Mr Pappas, who appears for Mr Miletic and appeared for him at the trial, has raised a preliminary issue in that I should not deal with the related/ or back up offence because “it would not be in the interests of justice” to do so.

4 S167(1A) permits me to deal with a related offence unless to do so would not be in the interests of Justice. S169(1) provides that I can remit a related matter to the Local Court if it is in the interests of justice to do so. More importantly the section also provides that if I do not deal with the related offence, then the offence must be remitted to the Local Court to be dealt with.

5 What seems to be clear from these two sections is that if for any reason, including a reason involving the interests of justice, I decline to deal with this related offence, then the offence must be remitted to the Local Court to be dealt with.

6 As a matter of practicality, it would not be appropriate to remit the matter to the Local Court because I have heard all the evidence and am familiar with the case.

7 Mr Pappas argues that, for a number of reasons, I would find that it is not in the interests of Justice to deal with the offence. They are that

1. There is some evidence to suggest that the victim’s family don’t wish to pursue the matter any further,

2. The matter was unable to proceed on 28th July 2006 when it was listed for hearing before me in Sydney because the Crown Prosecutor was not available and Mr Miletic has been put to additional and…

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 Miletic

Details

AGLC: R v Miletic [2006] NSWDC 114
Case: [2006] NSWDC 114
Decision Date: 2 November 2006

CaseChat Overview and Summary

The case of R v Miletic involved the defendant, Miletic, who was charged with driving dangerously causing death (DMD) and negligent driving causing death. Miletic had fallen asleep while driving, resulting in a fatal accident. Miletic was acquitted of the principal charge of DMD but convicted of negligent driving causing death. The court was required to determine whether the acquittal of the principal charge affected the conviction for the back-up charge of negligent driving causing death. Additionally, the court had to examine the distinction between DMD and negligent driving in the context of the same facts and allegations of negligence.

The court held that the acquittal of the principal charge did not preclude the conviction for the back-up charge. The court distinguished between DMD, which requires a high degree of culpability, and negligent driving, which requires a lesser degree of culpability. The court found that the facts of the case supported a conviction for negligent driving causing death, as Miletic's falling asleep while driving constituted a breach of the duty of care owed to other road users. The court held that the interests of justice were served by convicting Miletic of negligent driving causing death, as it reflected the degree of culpability involved in the case.

The court further held that the distinction between DMD and negligent driving was important in this case. DMD required a higher degree of culpability than negligent driving, and the court found that the facts of the case did not support a conviction for DMD. However, the court found that the facts did support a conviction for negligent driving causing death. The court held that the distinction between the two offences was important in determining the appropriate charge and conviction in this case.

The court ordered that Miletic be convicted of negligent driving causing death and imposed a Section 9 Bond. The court held that the conviction and bond reflected the degree of culpability involved in the case and served the interests of justice.

Orders

Orders of the court

Offence proved; Convicted; Section 9 Bond

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R V Miletic [2006] NSWDC 114
HEARING DATE(S):	07/04/06,29/05/06,28/07/06,20/09/06
JUDGMENT DATE:	2 November 2006
JUDGMENT OF:	Williams DCJ at 1
DECISION:	Offence proved; Convicted; Section 9 Bond
CATCHWORDS:	Negligent Driving Causing Death - Back up Charge to DMD causing death - Acquitted of principal charge - Interests of justice - Same facts and allegation of negligence - Driver falling asleep - Distinction between DMD and Negligent driving
LEGISLATION CITED:	Criminal Procedure Act 1986 s166, s167(1A), s169(1) Road Transport (Safety & Traffic Management) Act 1999 s42
CASES CITED:	Dennis v Watt 60 WN 7 R v Kroon (1990) 52 A Crim R 15 Jiminez v R (1992) 173 CLR 572 McBride v The Queen (1966-67) 40 ALJR 57
PARTIES:	Regina Mario Miletic
FILE NUMBER(S):	05/41/0111
COUNSEL:	Crown: Mr R Willis Defence: Mr J Pappas
SOLICITORS:	DPP Wollongong Ms Foliaki-Singh