R v Read

[2017] NSWDC 322

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Read [2017] NSWDC 322
Hearing dates:	13 June 2017
Date of orders:	13 June 2017
Decision date:	13 June 2017
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Application for permanent stay of proceedings not granted
Catchwords:	CRIMINAL LAW – Judgment – Application for permanent stay of proceedings – Claimed abuse of process to put accused on trial – Claim that proceedings foredoomed tofail.
Category:	Procedural and other rulings
Parties:	The Crown Steward David Read
Representation:	Counsel: Mr C McPherson – Crown/ Respondent Mr R Bonnici – Applicant / Accused   Solicitors: Director of Public Prosecutions – Crown /Respondent Colleen V Donnelly Solicitor – Applicant / Accused
File Number(s):	2013/347675

Judgment

1. HIS HONOUR: The accused in a trial listed to commence today makes application for a permanent stay of proceedings.

2. The decision whether or not to grant a stay of the prosecution of a criminal offence involves consideration of competing important principles.

3. It is well established that it is in the interests of justice that people charged with criminal offences should be tried. Those charged with criminal offences should not obtain immunities from prosecution. There is a public administration in the due administration of the criminal law. The interests of the accused have to be balanced with those of the community and the community’s right to expect that people charged with criminal offences are brought to trial. The courts will not allow themselves to be instruments or oppression, or allow proceedings to continue where they are abuse of a court’s processes.

4. Mr Bonnici, who appears for Mr Read, sought a stay on a number of grounds. In the course of discussions, I ruled that the grounds which I would consider are those which I have just mentioned, involving questions as to whether proceedings are oppressive or an abuse of the court’s processes.

5. The accused is to be indicted on a count of dangerous driving occasioning grievous bodily harm. He was charged with that offence some time ago now. After charge, there were committal proceedings. He was committed for trial to the Taree District Court, but his trial was not reached there on two occasions. In order to ensure that his trial was reached on the next occasion, the matter was listed as a special fixture in the Newcastle District Court. A seven day trial before Judge Frearson and a jury was then held. This trial resulted in the jury being unable to agree upon a verdict and they were discharged without verdict.

6. It is an unfortunate state of affairs that defending oneself against a criminal charge is a terribly expensive matter. Mr Read is funding his own legal representation, he does not qualify for legal aid. I have little difficulty in accepting that Mr Read has already spent a great deal of money on his legal representation, especially in circumstances where two earlier trials have been not reached and a trial resulted in a hung jury.

7. And then, of course, in a case of this kind, there are the need to obtain expert reports, which again are far from cheap. There are some small ways in which some of that expense can be ameliorated, such as through applications under the Suitors Fund, but such applications do little to offset the enormous expense of defending a criminal charge.

8. One particular matter that Mr Bonnici raised was the cost of transcript. His client does not have the transcript of the trial before Judge Frearson because that does not come free to him. The Crown gets it for free and I get it for free too, but the way justice is administered in New South Wales is such that if an accused wants a transcript of an aborted trial he or she has to pay for it. Nor is transcript cheap.

9. The result is that I accept that Mr Read has spent a great deal of money and will spend a great deal more in the event that Mr Bonnici’s application is refused.

10. But there is a difference between things being expensive and things being oppressive. It is not oppressive, in my view, for an accused to face trial on a second occasion where a jury has not agreed at the first trial, even taking into account the other expenses arising from the not reached trials, the expert reports and the committal proceedings. Expensive, yes, but oppressive, no.

11. No particulars of expense were provided to me but I proceed it on the basis, as I have indicated, that a great deal of money is involved.

12. Mr Bonnici’s application regarding his submission that the continuation of proceedings is an abuse of the court’s processes was based on the proposition that the charge the prosecution brings against Mr Read is doomed to fail. I pass over the suggestion that if it was doomed to fail one might have expected an acquittal at the first trial and move on to my consideration as to the evidence which will be put before a jury if the stay application is refused.

13. The accused was driving his truck along a roadway where the speed limit was 110 kilometres an hour. Ahead of him was a man on a tractor mowing the grass verge. He is the person who suffered grievous bodily harm as a result of what the Crown said is the accused’s dangerous driving.

14. Mr Hughes was the tractor driver. Between Mr Hughes on his tractor and the accused in his truck were two vehicles. One was described as a “shadow vehicle” and another was a vehicle in which a Mr Newell sat. A driver approaching Mr Hughes on his tractor would first pass Mr Newell in his vehicle. His vehicle was parked to the side of the road. A photograph of the appearance of that vehicle from the rear was tendered on this application. It shows that Mr Newell was in a white utility vehicle with a trailer behind him. The trailer had a number of relevant signs.

15. Firstly, there is an illuminated sign where the display changes. The sign reads “Merge right” with some chevrons pointing to the right underneath. Then the word “Lane” appears, then the word “Closed” appears. Underneath that sign is a speed limit sign indicating 80 kilometres per hour ahead, that sign in the standard format of black letters on a white background with a red circle around them. The appearance of the trailer is largely yellow.

16. I am told also that there were flashing orange lights, although they do not appear to be visible in the photograph tendered.

17. After a motorist passes Mr Newell’s vehicle he or she approaches what was described as “the shadow vehicle”. It was a large truck. Mounted behind the truck was a deformable barrier brightly painted with red and white chevrons and what appear to be flashing orange lights. Mounted on the truck itself was an illuminating sign, indicating the speed limit of 80 due to road work. In fact, what was on the sign are the numerals “80” and underneath the words “Roadwork”   On top of that sign was another display with flashing orange lights, which, it is accepted, were displaying a flashing arrow pointing to the right, indicating to the driver the need to move into the right lane.

18. Mr Read, it seems to be common ground, did not see Mr Newell’s vehicle as he approached it and then went past it. When he came up behind the shadow vehicle it is the defence case that he could not move to the right because of the presence of motorbikes to his right. Accordingly, he moved to the left where, shortly thereafter, he collided with Mr Hughes on his tractor.

19. That is the way I understand the Crown case from the evidence put before me today.

20. The evidence put before me by Mr Bonnici consists of photographs taken from the dash cam in Mr Newell’s vehicle, photographs of the rear of

21. Mr Newell’s vehicle and a single photograph of the shadow truck. There was also tendered what was described as a folder index which was intended to convey to me what could have been done better by those in charge to avoid collisions of the type which did occur.

22. Mr Bonnici filed a number of matters in the sense that he gave them to a different judge last week but I rejected the tender of one of those documents, the no bill application, written by Mr Bonnici and sent to the DPP and did not find it necessary to consider other things which Mr Bonnici proposed to tender, Mr Bonnici being content, to proceed on the basis that I would accept the factual matters on which he relied for the purposes of this application.

23. I made it clear, in the course of submissions, for the purposes of this application I do accept that matters could have been done better and I will be a bit more specific about what could have been done better in a little while.

24. I was told and there seemed to be no dispute about this also, that

25. Mr Newell was not paying attention to passing traffic. There was reference to Mr Newell looking at something on his computer. Of course, that is certainly not in Mr Newell’s favour but, as is obvious, even if he had been paying attention, it would not have altered the appearance of his vehicle, which was parked approximately 300 metres before the tractor which Mr Hughes was using to mow the grass verge.

26. Mr Newell’s vehicle and, even more so, the trailer behind it, was a highly visible warning of the need for caution to be exercised due to some unspecified hazard ahead. The trailer sign advised a motorist to merge right because a lane was closed and that the speed limit would drop from 110 kilometres an hour to 80 kilometres an hour ahead. Although the shadow vehicle had the apparent function of protecting those in it and a person mowing the grass verge on a tractor by absorbing any impacts, it is also a highly visible warning of a hazard, with the clear specification that the speed limit is 80 kilometres an hour due to road work.

27. The Crown case is that the accused was driving dangerously in that he failed to see the warnings on Mr Newell’s vehicle at all and did not see the shadow vehicle in sufficient time to allow him to respond appropriately to its presence on the road.

28. To be considered dangerous, the way in which an accused person drove has to be proved by the Crown to be such that that driving was a serious breach of the proper conduct of a motor vehicle, so serious as to be, in reality and not merely as a matter of speculation, potentially dangerous to another person or persons.

29. The manner of driving, of course, refers to things such as what the driver looks at, whether the driver steers the vehicle properly, does the driver brake or slow down, does the driver stop when he should stop and go when he should go. Indeed, the manner of driving encompasses all the sorts of things a driver does or should do as part of driving a motor vehicle.

30. The way an accused person, charged with an offence such as this, drove would be dangerous if the Crown establishes beyond reasonable doubt that there has been a serious breach of the proper management and control of a motor vehicle and that the breach is so serious that it creates a real danger to another person or persons in the vicinity.

31. It is the risk of harm which is important, rather than the result of the driving, when deciding whether driving, in particular circumstances, is dangerous.

32. I mentioned before the presence of motorcycles on the roadway. It is, as I understand the defence case advanced on behalf of Mr Read, that it was the presence of those motorbikes which caused him to miss seeing Mr Newell’s vehicle and, when he came up behind the shadow vehicle, prevented him from moving into the right lane, leaving him with only the option of moving left into the breakdown lane, where, unbeknownst to him, Mr Hughes was on his tractor.

33. The four photographs taken from Mr Newell’s dash cam are helpful. The last of those photographs shows the truck driven by Mr Read as it comes into the dash cam’s field of view. Mr Read’s truck is in lane 1, the motorbikes, at least the one closest to the camera, is in lane 2 and there is some distance between the closest motorbike and Mr Read’s truck. That photograph tends to suggest that any hazard presented by the motorbikes had passed at the time Mr Read approached Mr Newell’s vehicle and passed it.

34. I mention that matter because of the need for me to consider whether, as Mr Bonnici suggests, these proceedings are foredoomed to fail.

35. On the evidence before me today, the Crown case is a strong one. The warnings provided by Mr Newell’s trailer are hard to miss and the presence of the motorbikes, while perhaps a distraction earlier along the roadway, seem to have passed by the time Mr Read approached Mr Newell’s vehicle.

36. As I said earlier, I accept, for the purpose of this application, that many things could have been done better by those in charge. Things such as witches hats could have blocked lane 1, the witches hats being placed in a way which would gradually cause a vehicle to move from lane 1 into lane 2. There could have been better signs, there could have been more signs and more vehicles to protect Mr Hughes on his tractor. But, just because things could have been done better, it does not necessarily mean that, as Mr Bonnici seems to have assumed, that his client was not driving dangerously.

37. The Crown relies not only on the failure to see Mr Newell’s vehicle but also the failure to see the shadow vehicle in time to avoid colliding with it. The shadow vehicle is again brightly coloured and a driver looking ahead would have seen it for some distance away.

38. I assess this case as being a strong one. Certainly, on my consideration of the evidence, this is far from a case where it can be said that the Crown case is foredoomed to fail.

39. I, therefore, reject the two grounds relied on by Mr Bonnici for a permanent stay of proceedings. The trial will, therefore, proceed.

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Amendments

15 November 2017 - Spelling correction on cover sheet

Decision last updated: 15 November 2017