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Williams v R

Williams v R

Case [2012] NSWCCA 286 20 December 2012

Appeal

Dangerous Driving

Absconding During Trial

Sentencing

Criminal Law

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This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales

Case Title: Williams v R

Medium Neutral Citation: [2012] NSWCCA 286

Hearing Date(s): 1 November 2012

Decision Date: 20 December 2012

Before: Basten JA at [1];
Adams J at [17];
R A Hulme J at [30]

Decision:
Leave to appeal against conviction refused. Leave to appeal against sentence refused.

Catchwords: CRIMINAL LAW - appeal and new trial - objections or points not raised in court below - Rule 4 of Criminal Appeal Rules - whether rule applies when trial continued after accused absconded but counsel remained - consideration as to role of counsel after accused absconded
CRIMINAL LAW - particular offences - offences against the person - dangerous driving occasioning death or grievous bodily harm - whether accused remained the driver at the time of impact after passenger grabbed the steering wheel
CRIMINAL LAW - procedure - hearing in open court and in presence of accused - accused absconding during trial - waiver of right to be present - discretion to continue trial in accused's absence
CRIMINAL LAW - sentence - nature and circumstances of offence - dangerous driving occasioning death and grievous bodily harm - whether passenger grabbing steering wheel reduced objective seriousness of offence - whether error in accumulating sentences

Legislation Cited: Bail Act 1978 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Road Traffic Act 1961 (SA)
Road Transport (General) Act 2005 (NSW)

Cases Cited: Bassell v McGuiness (1981) 29 SASR 508
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Duncan v R [2012] NSWCCA 78
House v The King [1940] HCA 40; (1936) 55 CLR 499
Jamal v R [2012] NSWCCA 198
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
Langman v Valentine [1952] 2 All ER 803
Makarov v R (No 2) [2008] NSWCCA 292
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Police v Thompson [2006] SASC 20; (2006) 45 MVR 37
R v Affleck (1992) 65 A Crim R 96
R v Black (NSWCCA 23 July 1998, unreported)
R v Dunlop [2001] NSWCCA 435
R v Janceski [2005] NSWCCA 288
R v Jones [1998] SASC 7021; (1998) 72 SASR 281
R v McHardie & Danielson [1983] 2 NSWLR 733
R v Rayner [2002] NSWCCA 309
R v Reeves [1999] NSWCCA 269
R v Wilkins (1988) 38 A Crim R 445
Regina v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
Richards v R [2006] NSWCCA 262
Ricketts v Laws (1988) 14 NSWLR 311
Skipworth v R [2006] NSWCCA 37

Category: Principal judgment

Parties: Michelle Dorothy Vera Williams (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
Mr S Russell (Applicant)
Ms J Girdham SC (Respondent)

- Solicitors: Solicitors:
Peter Murphy Criminal Law
Solicitor for Public Prosecutions

File Number(s): 2009/90310

Decision Under Appeal

- Court / Tribunal:

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 Williams v R

Details

AGLC: Williams v R [2012] NSWCCA 286
Case: [2012] NSWCCA 286
Decision Date: 20 December 2012

CaseChat Overview and Summary

Williams was convicted of dangerous driving occasioning death and grievous bodily harm and appealed against his conviction and sentence. The appeal raised issues concerning the application of Rule 4 of the Criminal Appeal Rules, the role of counsel during the trial, and the objective seriousness of the offence. The trial judge had proceeded with the trial after Williams absconded, with counsel remaining. The appeal court considered whether Rule 4 applied in circumstances where counsel continued to represent the accused despite the latter's absence. The court concluded that the rule applied and that the counsel's presence did not preclude the application of the rule.

The court also examined whether Williams remained the driver of the vehicle at the time of the impact, given that his passenger had grabbed the steering wheel. The appeal court found that Williams was still the driver and that the passenger's action did not absolve him of responsibility. Furthermore, the court addressed the discretion to continue the trial in the absence of the accused, who had absconded, and found that the trial judge had not erred in proceeding without Williams. Finally, the court considered the objective seriousness of the offence and whether the passenger's action mitigated the severity of the crime. The appeal court determined that the passenger's action did not sufficiently reduce the objective seriousness of the offence and that there was no error in the accumulation of sentences.

The appeal was dismissed, and the original conviction and sentence were upheld. The court found that the trial judge had correctly applied the law, and there were no grounds for a new trial or sentence variation. The appeal court emphasised the importance of following procedural rules and the role of counsel in criminal trials. The decision underscores the principle that the accused's absence does not automatically preclude the continuation of the trial, provided that the accused's rights are protected and the trial is conducted fairly. The court's findings also highlight the need for careful consideration of the objective seriousness of offences involving dangerous driving and the impact of passengers' actions on the driver's responsibility.

Orders