R v Stevens

[2013] QDC 102

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Stevens [2013] QDC 102

PARTIES:

R
(Crown)

V

STEVENS
(Defendant)

FILE NO:

1680/12

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

2 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

2 May 2013

JUDGE:

Rackemann DCJ

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – Dangerous operation causing death – Whether dangerous driving simpliciter is open pursuant to s 575 of the Criminal Code.

COUNSEL:

Lehane, M for the Crown

Zillman, S for the defendant

SOLICITORS:

McGinness & Associates Lawyers for the defendant

I have been asked to rule on whether, in the circumstances of this case, the jury should be left with the alternative of dangerous driving simpliciter as an alternative to the offence of dangerous driving causing death, as has been charged in the indictment. The basis for leaving such an alternative, if there is a basis, is section 575 of the Criminal Code, which provides as follows:

“Except as herein after stated, upon an indictment charging a person with an offence committed with circumstances of aggravation, the person may be convicted of any offence which is established by the evidence, and which is constituted by any act or omission which is an element of the offence charged, with or without any of the circumstances of aggravation charged in the indictment”. 

For the section to be engaged, it is a pre-requisite that the offence with which the person was charged was an offence committed with circumstances of aggravation.   The debate before me was as to whether the offence of dangerous driving causing death, under section 328A, subsection (4), answers that description. 

The expression “circumstance of aggravation” is defined in section 1 of the Criminal Code to mean as follows:

“means any circumstance by reason whereof an offender is liable to a greater punishment than that to which the offender would be liable if the offence were committed without the existence of that circumstance”. 

The offence of dangerous driving causing death brings with it a maximum period of imprisonment of 10 years in the event that subparagraphs (b) and (c) do not apply, and they do not apply here.  The offence of dangerous driving simpliciter carries a maximum penalty of only three years imprisonment. 

The offence of dangerous driving simpliciter is constitution by the following:  “a person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place commits a misdemeanour”. The offence of dangerous driving causing death is as follows:  “a person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place and causes the death of or grievous bodily harm to another person commits a crime and is liable on conviction on indictment …” 

It will be seen, therefore, that the very thing which constitutes the offence of dangerous driving simpliciter is an element of the offence of dangerous driving causing death or grievous bodily harm. There is a recent Court of Appeal authority to the…