King v The Queen [2012] HCA 24

HIGH COURT OF AUSTRALIA

FRENCH CJ,

HEYDON, CRENNAN, KIEFEL AND BELL JJ

TRENT KING APPELLANT

AND

THE QUEEN RESPONDENT

King v The Queen [2012] HCA 24

20 June 2012

M129/2011

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Victoria

Representation

M J Croucher SC with C A Boston for the appellant (instructed by Balmer & Associates)

G J C Silbert SC with B L Sonnet for the respondent (instructed by Office of Public Prosecutions Victoria)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

King v The Queen

Criminal law – Appeal against conviction – Jury misdirection – Appellant convicted of two counts of "culpable driving causing death" contrary to s 318(1) of the Crimes Act 1958 (Vic) ("the Act") – Jury had power under the Act to return an alternative verdict of "dangerous driving causing death" contrary to s 319(1) if satisfied that accused not guilty of offence charged under s 318 – Trial judge directed jury that dangerous driving established by proof accused drove in way that "significantly increased the risk of harming others" and that Crown did not have to show driving was "deserving of criminal punishment" – Whether trial judge misdirected jury – Whether R v De Montero (2009) 25 VR 694 should be followed – Whether departure from trial according to law or miscarriage of justice.

Words and phrases – "culpable driving causing death", "deserving of criminal punishment", "dangerous driving causing death".

Crimes Act 1958 (Vic), ss 318, 319, 422A(1).

FRENCH CJ, CRENNAN AND KIEFEL JJ.

Introduction

1. This appeal against two convictions for culpable driving causing death contrary to s 318(1) of the Crimes Act 1958 (Vic) ("the Crimes Act"), concerns the way in which alternative verdicts for the lesser offence of dangerous driving causing death, contrary to s 319(1) of the Crimes Act, were left to the trial jury. In the Court of Appeal of the Supreme Court of Victoria (Buchanan, Redlich and Mandie JJA), the appellant, Trent Nathan King, contended unsuccessfully that the trial judge (Douglas J) had misdirected the jury on the lesser offence. He complained that the trial judge had pitched the standard of dangerous driving, necessary for conviction of the lesser offence, at such an erroneously low level of culpability that the jury would have been less inclined to consider convicting him of that offence. Her Honour told the jury that dangerous driving was established by proof that the accused drove in a way that "significantly increased the risk of harming others." Her Honour's direction accorded with existing authority in Victoria. The subsequent decision of the Court of Appeal in R v De Montero[1] construed s 319 as imposing a higher level of culpability than set out in the trial judge's direction. It required driving that created "a considerable risk of serious injury or death to members of the public."[2] It also required conduct by the accused in his manner of driving which was such as to merit punishment by the criminal law. The decision in De Montero was applied by the Court of Appeal in this case. For reasons which are set out below, De Montero should not be followed. 2. The trial judge's direction was potentially misleading in one respect. Her Honour directed the jury that, in order to establish that Mr King had committed the offence of dangerous driving causing death, it was not necessary for the Crown to prove that the driving said to be dangerous was deserving of criminal punishment. By that direction, which was contrary to the guidelines later set down in De Montero, her Honour sought to exclude the criterion of criminal negligence from the jury's consideration of the offence under s 319. As is explained later in these reasons, her Honour's understanding of s 319 in that regard was correct. Insofar as the direction had the potential to mislead the jury, it did not constitute a miscarriage of justice. Such a conclusion is reinforced by the absence of any request for a redirection by defence counsel. The appeal should be dismissed.