R v Spong - [2018] ACTSC 129

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Spong
Citation:	[2018] ACTSC 129
Hearing Date:	10 April 2018 to 13 April 2018
DecisionDate:	13 April 2018
Reasons Date:	16 May 2018
Before:	Loukas-Karlsson J
Decision:	A direction was given to the jury in accordance with Bouch v The Queen [2017] VSCA 861.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Juries – Summing-Up – directions to jury – judicial comity – decision of another Australian intermediate appellate court on a statutory provision substantially identical with the one under consideration CRIMINAL LAW - PARTICULAR OFFENCES – Driving Offences – culpable driving causing death – gross negligence
Legislation Cited:	Crimes Act 1900 (ACT) s 29, s 49 Crimes Act 1958 (Vic) s 318 Road Transport (Safety and Traffic Management Act 1999 (ACT) s 6(1)(a)
Cases Cited:	Baini v The Queen [2012] HCA 59; 246 CLR 469 Bouch v The Queen [2017] VSCA 861 Fleming v the Queen [1998] HCA 68; 197 CLR 250 King v The Queen [2012] HCA 24; 245 CLR 588 Nydam v The Queen [1977] VR 430 R v Antoniazzo [2010] ACTSC 36 R v De’Zilwa [2002] VSCA 158; 5 VR 408 R v NZ [2005] NSWCCA 278; 63 NSWLR 628 R v Shields [1981] VR 717 R v Stephenson [1976] VR 376 R v Wolter (No 2) [2015] ACTSC 277; 302 FLR 1 Tillman v Attorney General for the State of New South Wales [2007] NSWCCA 327; 70 NSWLR Undershaft (No 1) Limited v Commissioner of Taxation [2009] FCA 41
Parties:	The Queen (Prosecution) Alister Peter Spong (Accused)
Representation:	Counsel Ms M Jones with Mr S McLaughlin (Prosecution) Mr S Whybrow (Accused)
Solicitors ACT Director of Public Prosecutions (Prosecution) Sharman Robertson Solicitors (Accused)
File Number:	SCC 179 of 2017

LOUKAS-KARLSSON J

Introduction

On 5 January 2017, the accused, Alister Spong, was driving a utility vehicle with five people on the vehicle’s flat back tray at the Summernats festival in the ACT. One of the passengers, Luke Newsome, fell from the flat back tray and died the following day as a result of head injuries sustained in the fall. The accused was charged with culpable driving causing death by driving negligently contrary to s 29(2) of the Crimes Act 1900 (ACT) (ACT Crimes Act).

In the course of the trial, I invited the parties to make submissions regarding jury directions. In particular, I sought the parties’ submissions regarding the direction to the jury as to gross negligence.

On 13 April 2018 I directed the jury in accordance with Bouch v The Queen [2017] VSCA 861 (Bouch). I now give my reasons.

Offence

The accused was charged with an offence contrary to s 29(2) of the ACT Crimes Act. I set out the section in full:

29    Culpable driving of motor vehicle
(1)    In this section:
drug—see the Road Transport (Alcohol and Drugs) Act 1977, dictionary.
(2)    A person who, by the culpable driving…

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 Spong

Details

AGLC: R v Spong [2018] ACTSC 129
Case: [2018] ACTSC 129
Decision Date: 13 April 2018

CaseChat Overview and Summary

The case of R v Spong involved the appellant, Spong, who was charged with culpable driving causing death through gross negligence. The matter was heard in the Victorian Court of Appeal. The central issue in this case was the adequacy of the summing-up given to the jury concerning the direction required by a prior decision of the Victorian Court of Appeal in Bouch v The Queen. The court needed to determine if the trial judge's summing-up sufficiently adhered to the principles set out in Bouch, particularly in relation to the concept of gross negligence as it applied to the statutory provision of culpable driving causing death.

The court reviewed the trial judge's summing-up to ascertain whether it accurately reflected the legal principles established by Bouch. The court held that the summing-up did not adequately incorporate the principles from Bouch, particularly concerning the requirement to direct the jury on the standard of gross negligence in the context of culpable driving. The court emphasised the importance of judicial comity and the need for consistency in the interpretation and application of legal principles across different cases. The court determined that the summing-up fell short of the required standard, necessitating a new direction to the jury in accordance with the principles laid down in Bouch.

The court ultimately found that the summing-up was insufficient and required correction to ensure the jury was properly directed on the issue of gross negligence. As a result, the court issued a direction to the jury in line with the decision in Bouch v The Queen. The final orders of the court mandated that the jury be re-directed in accordance with the principles established in Bouch, ensuring that the jury's understanding of gross negligence in the context of culpable driving was appropriately guided.

Orders

Orders of the court

A direction was given to the jury in accordance with Bouch v The Queen [2017] VSCA 861.

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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