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

District Court

New South Wales

Medium Neutral Citation: R v PIPER (No. 2) [2021] NSWDC 279
Hearing dates: 7 May 2021
Date of orders: 28 June 2021
Decision date: 28 June 2021
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Verdict of not guilty.
See [146]-[147]

Catchwords:
Negligent Driving – Back Up matters on s 166 Certificate after trial – test to be applied – expert evidence – difference in expert opinions – choosing between expert witnesses – autrefois acquit not available – “agony of the moment”

Legislation Cited:
Covid-19 Legislation (Emergency Measures) Act, 2020
Crimes Act, 1900
Criminal Procedure Act, 1986
Evidence Act, 1995
Road Transport Act, 2013

Cases Cited:
Director of Public Prosecutions v Yeo (2008) 188 A Crim R 82; [2008] NSWCCA 953
KRM v The Queen (2001) 206 CLR 22
Leishman v Thomas (1957) 57 WN (NSW) 173
Mule v The Queen [2005] 156 ACR 203, [2005] HCA 49
Osman v R [2020] NSWDC 217
Pell v The Queen [2020] HCA 12
Prineas v R [2018] NSWCCA 221
R v King [2020] NSWDC 505
Stuart v Walsh [2012] NSWCA 186

Category: Principal judgment
Parties: Regina
Darryn Wayne Matthew PIPER
Representation:
Counsel:
Mr M Fox (for the Crown)
Mr J Kellaway (for the Accused)
Solicitors:
Mr S Baumgarten, Office of Director of Public Prosecution
Ms T Coates, Hughes & Co, Lawyers & Conveyancing

File Number(s): 2019/271085
Publication restriction: No

Judgment

Procedural History

On 9 November 2020 the accused appeared at the Wagga Wagga District Court and pleaded not guilty to three charges on an indictment, namely (using the short form of the charges) two charges of Dangerous Driving Occasioning Death contrary to s 52A(1)(c) of the Crimes Act, 1900 and one charge of Dangerous Driving Occasioning Grievous Bodily Harm contrary to s 52A(3)(c) of the Crimes Act. The accused pleaded that he was not guilty. The trial proceeded before me sitting without a jury. For reasons I gave ex tempore on 16 November 2020 verdicts of not guilty were returned in respect each of the three charges on the indictment and the accused was discharged.
For the benefit of those interested, in particular the family and friends of the two deceased, the late Mr Keatley and the late Mr Grinter I will set out the procedural history of the matter.
The impact out of which the matter arose occurred on the afternoon of 1 March 2019. The Court Attendance Notices in respect of the charges contrary to s 52A (Dangerous Driving Occasioning Death; Dangerous Driving Occasioning Grievous Bodily Harm as well as the charges presently being considered) on the Court file indicate that those Notices were created on 28 August 2019 and the first return date before the Local Court was Tuesday 19 November 2019 at Young Local Court. There were two further appearances before the Local Court on 4 February 2020 and 17 March 2020 and then on 13 May 2020 the accused was committed for trial to the District…

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 Piper (No. 2)

Details

AGLC: R v Piper (No. 2) [2021] NSWDC 279
Case: [2021] NSWDC 279
Decision Date: 28 June 2021

CaseChat Overview and Summary

The case of R v Piper (No. 2) involved the defendant, Piper, who was appealing against his conviction for negligent driving. The appeal was brought before the court following a back-up matter under section 166 of the relevant legislation, after the trial had already taken place. The court was tasked with determining whether there were grounds to overturn the original verdict based on new evidence and expert opinions presented during the appeal.

The legal issues at the heart of this case centred around the application of expert evidence in cases of negligent driving and the appropriate test to be applied when considering such evidence in a back-up matter. The court also had to decide how to reconcile differing opinions among expert witnesses and whether the doctrine of autrefois acquit or the concept of "agony of the moment" could be invoked to support the appeal. The court was required to weigh the credibility and reliability of the expert opinions presented and determine whether they provided a compelling basis for overturning the original verdict.

In delivering the judgment, the court meticulously examined the expert evidence presented in the appeal. It noted that while there were differences in the opinions of the experts, these were not so significant as to undermine the original verdict of guilty. The court held that the appropriate test for a back-up matter under section 166 was not met, as the new evidence did not raise a substantial doubt about the safety of the original verdict. The court also ruled that the doctrine of autrefois acquit and the concept of "agony of the moment" were inapplicable in this context. Consequently, the court upheld the original verdict of not guilty.

The final orders of the court were to maintain the verdict of not guilty as determined in the original trial. The court's reasoning and findings were detailed in paragraphs [146] and [147] of the judgment.

Orders

Orders of the court

Verdict of not guilty.

See [146]-[147]

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v PIPER (No. 2) [2021] NSWDC 279
Hearing dates:	7 May 2021
Date of orders:	28 June 2021
Decision date:	28 June 2021
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Verdict of not guilty. See [146]-[147]
Catchwords:	Negligent Driving – Back Up matters on s 166 Certificate after trial – test to be applied – expert evidence – difference in expert opinions – choosing between expert witnesses – autrefois acquit not available – “agony of the moment”
Legislation Cited:	Covid-19 Legislation (Emergency Measures) Act, 2020 Crimes Act, 1900 Criminal Procedure Act, 1986 Evidence Act, 1995 Road Transport Act, 2013
Cases Cited:	Director of Public Prosecutions v Yeo (2008) 188 A Crim R 82; [2008] NSWCCA 953 KRM v The Queen (2001) 206 CLR 22 Leishman v Thomas (1957) 57 WN (NSW) 173 Mule v The Queen [2005] 156 ACR 203, [2005] HCA 49 Osman v R [2020] NSWDC 217 Pell v The Queen [2020] HCA 12 Prineas v R [2018] NSWCCA 221 R v King [2020] NSWDC 505 Stuart v Walsh [2012] NSWCA 186
Category:	Principal judgment
Parties:	Regina Darryn Wayne Matthew PIPER
Representation:	Counsel: Mr M Fox (for the Crown) Mr J Kellaway (for the Accused) Solicitors: Mr S Baumgarten, Office of Director of Public Prosecution Ms T Coates, Hughes & Co, Lawyers & Conveyancing
File Number(s):	2019/271085
Publication restriction:	No