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Whelan v R

Whelan v R

Case [2012] NSWCCA 147 4 July 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: WHELAN, Heath Andrew v R [2012] NSWCCA 147
Hearing dates: 21 May 2012
Decision date: 04 July 2012
Before: Allsop P at [1]
Davies J at [5]
Schmidt J at [6]
Decision:
1.That the conviction appeal be dismissed.
2.That the sentence appeal be dismissed.

Catchwords: CRIMINAL LAW - dangerous driving - foetus - child in utero - child born alive prematurely and later died - appeal against conviction - whether it was necessary to establish that the baby was injured in utero - whether it was necessary to establish that it was an intended act which caused the baby to be born - grounds not established - appeal against sentence - intensive correction order - whether sentence was manifestly inadequate - whether her Honour erred in determining the degree of moral culpability for this offence as being at a low level - grounds not established
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Regulation 2010
Cases Cited: Attorney-General's Reference (No 3 of 1994) [1998] AC 245
Attorney General's Reference (No 3 of 1994) [1996] QB 581
Campbell v The Queen (1980) 2 A Crim R 157
Dinsdale v R [2000] HCA 54; (2000) 203 CLR 321
DPP v Samadi [2006] NSWCCA 308
Hedges v Regina [2011] NSWCCA 263
Hili v R [2010] HCA 45
Mitreski v R; R v Mitreski [2008] NSWCCA 301
SKA v R [2011] HCA 13
R v Bateson [2011] NSWSC 643
R v Boughen; R v Cameron [2012] NSWCCA 17
R v F (1996) 40 NSWLR 245
R v Iby [2005] NSWCCA 178; (2005) 154 A Crim R 55
R v Jurisic (1998) 45 NSWLR 209; [1998] 101 A Crim R 259
R v King (2003) 59 NSWLR 472
R v Khatter [2000] NSWCCA 32
R v Radley [2010] NSWCCA 64
R v Townsend [2010] NSWCCA 336
R v West [1848] 175 RE 329; 2 Car & P 784,
R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
Royall v R [1991] HCA 27; (1991)172 CLR 378
Texts Cited: Archbold, 43rd edition
Category: Principal judgment
Parties: Heath Andrew Whelan (Appellant/Respondent)
Regina (Crown)
Representation: Counsel:
B Greenhill SC (Appellant/Respondent)
J Pickering (Crown)
Solicitors:
WG McNally Jones Staff (Appellant/Respondent)
S Kavanagh, Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/284939
Publication restriction: None
Decision under appeal

Jurisdiction:

9101

Citation:

2009/284939

Date of Decision:

2011-11-11 00:00:00

Before:

Quirk DCJ

Judgment

ALLSOP P: I have had the advantage of reading the reasons in draft of Schmidt J. I agree with the orders that her Honour proposes and with her reasons. I would only add the following.

Causation is an issue that has been the subject of much debate and some legislation in the civil sphere. In crime, it remains, in many contexts, a jury question and is governed by the test in Royall v R [1991] HCA 27; 172 CLR 378.…

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 Whelan v R

Details

AGLC: Whelan v R [2012] NSWCCA 147
Case: [2012] NSWCCA 147
Decision Date: 04 July 2012

CaseChat Overview and Summary

In this case, the appellant was convicted of dangerous driving causing death, specifically the death of her foetus, born prematurely and later deceased. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. The appellant challenged both her conviction and the sentence imposed, arguing that the trial judge erred in the legal principles applied in determining the elements of the offence, as well as in assessing the appropriate sentence.

The central legal issues revolved around the elements of the dangerous driving causing death offence. The appellant contended that the prosecution needed to establish that the baby was injured in utero and that it was an intended act which caused the baby to be born. Additionally, she argued that the trial judge erred in determining the degree of moral culpability for this offence as being at a low level and that the sentence was manifestly inadequate. The court examined whether these contentions were valid in light of the evidence and applicable legal principles.

The court found that the prosecution did not need to establish that the baby was injured in utero or that it was an intended act which caused the birth. The court held that the prosecution was required to prove that the appellant's dangerous driving caused the baby to be born prematurely, which subsequently led to the baby's death. The court found no error in the trial judge's determination of the degree of moral culpability or the sentence imposed. The appeal against conviction and sentence was dismissed.

No further orders were made in this appeal. The appellant's conviction and sentence stand as determined by the trial judge.

Orders