R v Tang (No 2) - [2019] ACTSC 21

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Tang (No 2)

Citation:

[2019] ACTSC 21

Hearing Dates:

8 February 2019

Decision Date:

8 February 2019

Before:

Loukas-Karlsson J

Decision:

The accused is not guilty of the statutory alternative offence of negligent driving pursuant to s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT)

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial – trial by judge alone – circumstantial case – verdict – accused found not guilty of negligent driving causing grievous bodily harm

Legislation Cited:

Crimes Act 1900 (ACT) s 49

Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 6

Supreme Court Act1933 (ACT) ss 68D, 68E

Cases Cited:

Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; 188 A Crim R 82

Ex parte Musgrove; re Howard (1961) 78 WN(NSW) 88

Maritime Authority of NSW v Rofe [2012] NSWSC 5; 84 NSWLR 51

R v Pettman [2007] QCA 233

R v Tang [2019] ACTSC 4

Parties:

The Queen (Crown)

Chi Jun Tang (Defendant)

Representation:

Counsel

J Walker (Crown)

R Davies (Defendant)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Defendant)

File Numbers:

SCC 285 of 2017; SCC 286 of 2017

LOUKAS-KARLSSON J

Introduction

1.        On 18 January 2019, I returned the following verdict:
The accused Mr Tang is not guilty of the single count in the indictment dated 20 November 2017 of culpable driving causing grievous bodily harm.
2.        Further, I noted in the judgment (R v Tang [2019] ACTSC 4) that the prosecution relies on the statutory alternative of negligent driving causing grievous bodily harm, contrary to s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). This is the statutory alternative to the offence of culpable driving, pursuant to s 49 of the Crimes Act 1900 (ACT).
3.        I set out the elements of the statutory alternative at [183] of the previous decision:
The elements of this offence are:
(a) That the accused drove a motor vehicle;
(b) That the accused intended to drive the motor vehicle;
(c) That the accused drove the motor vehicle negligently;
(d) That the accused’s driving caused grievous bodily harm to another;

4. Additionally, I indicated at [185] of the previous decision that before coming to a decision in relation to the statutory alternative of negligent driving causing grievous bodily harm, I would invite further submissions from the parties and that I proposed to enter a verdict on the statutory alternative at a later date.

Backup and Related Offences

5. It is appropriate at this juncture that I deal with the threshold question under Part 8 of the Supreme Court Act1933 (ACT) (the Act). Section 68D, provides under sub-section (2) that:
The court must deal with any back-up or related offence with which the accused person has been charged if the court considers that it is in the interests of justice.
6. The Act sets out a procedure under…

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 Tang (No 2)

Details

AGLC: R v Tang (No 2) [2019] ACTSC 21
Case: [2019] ACTSC 21
Decision Date: 8 February 2019

CaseChat Overview and Summary

In the case of R v Tang (No 2), the appellant stood trial before a judge sitting without a jury for an offence of negligent driving causing grievous bodily harm. The incident involved a collision between the appellant's vehicle and a pedestrian, who sustained serious injuries. The prosecution's case was based on circumstantial evidence, relying on witnesses who were present at the scene and other relevant facts. The appellant denied the charge, asserting that he was not the driver of the vehicle at the time of the incident.

The primary legal issue before the court was whether the circumstantial evidence presented by the prosecution was sufficient to establish the appellant's guilt beyond reasonable doubt. The court had to consider the strength of the evidence, the credibility of the witnesses, and the logical inferences that could be drawn from the circumstances of the case. Additionally, the court needed to assess whether the appellant's defence provided a reasonable doubt as to his involvement in the alleged offence.

The court held that the evidence was insufficient to support a conviction of the appellant. The circumstantial evidence, while pointing towards the appellant's involvement, did not exclude the possibility that someone else was driving the vehicle at the time of the incident. The court found that the prosecution had not met its burden of proof, and therefore, the appellant was acquitted. The court emphasised the importance of direct evidence in criminal cases and the principle that the accused should only be convicted if the evidence leaves no reasonable doubt as to their guilt. The court also noted that the absence of any direct evidence linking the appellant to the driving of the vehicle at the time of the offence was critical in reaching its decision.

The final orders of the court were that the appellant be acquitted of the charge of negligent driving causing grievous bodily harm. The court's decision underscores the necessity for the prosecution to present evidence that leaves no reasonable doubt about the defendant's guilt in cases where the case against the accused relies on circumstantial evidence.

Orders