District Court New South Wales Medium Neutral Citation: R v KING [2020] NSWDC 505 Hearing dates: 27 May 2020 Date of orders: 4 September 2020 Decision date: 04 September 2020 Jurisdiction: Criminal Before: Lerve DCJ Decision: Charge of negligent driving occasioning death is permanently stayed Catchwords: CRIMINAL PROCEDURE – stay of proceedings – permanent – back up and related offences – whether in the interests of justice to deal with the back up offence – double jeopardy and incontrovertibility CRIME – driving offences – negligent driving occasioning death - intoxication Legislation Cited: Criminal Procedure Act, 1986 Crimes Act, 1900 Road Transport Act, 2013 Cases Cited: Director of Public Prosecutions v Sinton (2001) 51 NSWLR 659; [2001] NSWCA 179 Garrett v The Queen (1977) 139 CLR 437 Gilham v R (2007) 178 A Crim R 72 Gilham v R (2007) 178 A Crim R 72; [2007] NSWCCA 323 Gilham v The Queen (2012) 224 A Crim R 22 Jago v District Court of NSW (1989) 168 CLR 23 Nash v R [2019] NSWCCA 124 The Queen v Carroll (2002) 213 CLR 635 Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53 TR v Director of Public Prosecutions [2020] NSWSC 255 Washer v Western Australia (2007) 82 ALJR 33 Category: Procedural and other rulings Parties: Regina Bernard KING Representation: Counsel: Mr Carroll (for the applicant) Solicitors: Ms V Morgan (Solicitor Advocate for the Crown) File Number(s): 2016/70983 Publication restriction: No Judgment Reasons on application for a permanent stay of proceedings 1. By way of Notice of Motion dated 19 March 2020 the accused seeks an order that proceedings in respect of a charge of Negligent Driving (Occasioning Death) attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986 be permanently stayed. By way of secondary application it is put on behalf of the applicant that this court deals with the matter to finality. 2. The application arises in circumstances where the accused stood trial and was acquitted by a jury of one count of Dangerous Driving Occasioning Death (Driving Under the Influence of Intoxicating Liquor) contrary to s 52A(1)(a) of the Crimes Act, 1900. 3. The matter arises out of an impact that occurred at the intersection of Lambie and Sydney Streets, Tumut in the late afternoon of 5 March 2016. The accused was driving a Toyota Landcruiser utility BJ-96-TN and the deceased, Brett William Casey was riding an unregistered motor cycle. The deceased was also a disqualified driver and he had methyl amphetamine in his system. The applicant was executing a right-hand turn from Lambie Street into Sydney Street at the time of the impact. 4. Chronology 5 March 2016 Date of Impact 6 March 2016 Accused arrested 11 April 2016 First mention in the Local Court 26 June 2017 Committed for trial to the District Court 28 July 2017 First mention in the District Court 1 September 2017 Accused arraigned in the District Court and enters a plea of not guilty. Listed for trial on 19 March 2018 19 March 2018 Trial date vacated on application of accused due to recent change in legal representation 16 July 2018 Not reached – stood over to 17 July 2018 18 July 2018 Not reached – listed 5 November 2018 5 November 2018 Not reached (trial from previous week still proceeding) 8 July 2019 Trial date vacated due to counsel's illness 5 December 2019 Trial commences but jury discharged because of contents of defence counsel's opening. 9 March 2020 Trial commences 16 March 2020 Jury return verdict of Not Guilty to s 52A(1)(a) charge. Section 166 matters stood over to 17 March 2020. 20 March 2020 Timetable set for submissions 27 May 2020 Listed for hearing of Notice of Motion Trial Indictment 1. On 9 March 2020, the accused was arraigned and pleaded not guilty to one count on an indictment, namely that: "(he) on 5 March 2016 at Tumut in the State of New South Wales, did drive a motor vehicle namely a Toyota Landcruiser utility BJ-96-TN (NSW) whilst under the influence of intoxicating liquor, whereby the vehicle was involved in an impact as a result of which the death of Brett William Casey was occasioned". Section 166 matters 1. There are two matters attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act on H61887755, namely: Sequence 2: That (he) on 5 March 2016 at Tumut (in the State of New South Wales) did negligently drive a motor vehicle, (namely) BJ-96-TN upon a road, (namely) Lambie Street. Sequence 3: That (he) on 5 March 2016 at Tumut (in the State of New South Wales) did drive a motor vehicle (namely) BJ-96-TN on a road, (namely) Lambie Street, whilst there was present in his blood the middle range prescribed concentration of alcohol. Reading 0.119. Licence Number 1071ZP. Certificate number L3110/20160305/0023. 1. Sequence 3 is what is commonly or shortly referred to as a Mid-Range Prescribed Concentration of Alcohol offence. Bernard King has entered a plea of guilty to that charge. The application for a permanent stays is in respect of the Negligent Driving charge. 2. Relevantly, s 117 of the Road Transport Act, 2013 provides: (1) A person must not drive a motor vehicle on a road negligently. Maximum penalty— (a) if the driving occasions death—30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence), or (b) if the driving occasions grievous bodily harm—20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence), or (c) if the driving does not occasion death or grievous bodily harm—10 penalty units. 1. The offence is Negligent Driving. The maximum penalty is increased if death is occasioned. Particulars of Negligence relied upon by the Crown 1. The Crown relies upon the following particulars of negligence (see written submissions MFI 1 on this application.) 1. Failure by the applicant to see the deceased as he closed the distance to the intersection – or to put this in the usual parlance failure to keep a proper lookout; 2. Failure to properly judge whether it was safe to turn; 3. Failure to "Give way" to the deceased before commencing the turn; and 4. Failure to allow the deceased to pass before commencing the turn. 1. The Crown argues that these factors in combination lead to the conclusion that the applicant was not driving to the standard of the "ordinarily careful driver". Sections 165-169 Criminal Procedure Act, 1986 1. It is instructive to consider the relevant provisions of the Criminal Procedure Act. Sections 165 to 169 inclusive of that Act provide: 165 Definitions and application (1) In this Part— "back up offence", in relation to an indictable offence, means an offence— (a) that is— (i) a summary offence, or (ii) an indictable offence that is capable of being dealt with summarily by the Local Court in accordance with the provisions of Chapter 5, and (b) all the elements of which are elements that are necessary to constitute the first indictable offence, and (c) that is to be prosecuted on the same facts as the first indictable offence. "court" means the Supreme Court or District Court. "related offence", in relation to an indictable offence, means an offence— (a) that is— (i) a summary offence, or (ii) an indictable offence that is capable of being dealt with summarily by the Local Court in accordance with the provisions of Chapter 5, and (b) that arises from substantially the same circumstances as those from which the first indictable offence has arisen, but does not include a back up offence. (2) This Part extends to proceedings commenced, but not concluded, before the commencement of this Part. 166 Certification and transfer of back up and related offences (1) On committal for trial or sentence of a person charged with an indictable offence— (a) the prosecutor must inform the Magistrate as to whether or not the person has been charged with any back up offence or related offence, and (b) if the person has been charged with any back up offence or related offence— (i) the prosecutor is to produce to the court a certificate specifying each back up offence and related offence with which the person has been charged, and (ii) the proceedings on each back up offence and related offence with which the person has been charged are to be transferred to the court in which the person has been committed to trial or sentence (along with the certificate). (2) This section does not prevent the person referred to in subsection (1) being charged with any offence after committal. (3) Proceedings on a back up offence or related offence that are laid after committal for trial or sentence of a person charged with an indictable offence are to be transferred to the court in which the person has been committed to trial or sentence. 167 Manner of dealing with back up and related offences (1) If, following a plea of guilty by an accused person to an indictable offence or at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person guilty of the offence, the court— (a) is (unless it considers it inappropriate in the circumstances to do so) to order that the charge in relation to each back up offence be dismissed, and (b) is to deal with any back up offence the charge for which is not dismissed under paragraph (a) and any related offence with which the accused person has been charged in accordance with this Part, unless to do so would not be in the interests of justice. (1A) If at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person not guilty of the offence, the court is to deal with any back up offence or related offence with which the person has been charged in accordance with this Part, unless to do so would not be in the interests of justice. (2) If a court is dealing with an accused person for an indictable offence following the person's committal for sentence, the court— (a) is (unless it considers it inappropriate in the circumstances to do so) to order that the charge in relation to each back up offence be dismissed, and (b) may deal with any back up offence the charge for which is not dismissed under paragraph (a) and any related offence with which the accused person has been charged in accordance with this Part, unless to do so would not be in the interests of justice. (3) (Repealed) (4) A court may deal with a back up offence or related offence with which an accused person has been charged even though it is not doing so in relation to a back up offence or related offence with which another accused person in the same proceedings is charged. 168 Procedures for dealing with certain offences related to indictable offences (1) The court is to deal with a back up offence or related offence under this Part without a jury and on the basis only of evidence given during the trial of the accused person for the relevant indictable offence in the same proceedings and additional evidence given under this section. (2) The prosecutor or accused person may, with the leave of the court, call additional evidence in relation to the back up offence or related offence. (3) In sentencing or otherwise dealing with a person for a back up offence or related offence, the court has the same functions, and is subject to the same restrictions and procedures, as the Local Court. (4) Rules of court may be made with respect to back up offences or related offences dealt with under this Part. 169 Remission of certain offences related to indictable offences to Local Court (1) A court that is dealing with a back up offence or related offence under this Part may, if it is in the interests of justice to do so, remit the matter to the Local Court. (2) Any back up offence or related offence that is not dealt with by a court in accordance with this Part is to be remitted back to the Local Court. 1. I agree with the submission of Mr Carroll for the applicant at paragraph 70 of his written submissions, namely "It is apposite to note that the negligent driving offence is not a back up offence for the purposes of the CPA Act. The definition of a back up offence is an offence in which all of the elements of the back up offence are contained within the offence prosecuted on indictment". 2. As I was obliged to do in the course of the summing up I set out the charge that the jury had to consider. The direction to which neither counsel took exception was as follows: "Members of the jury, the accused stands charged before you upon an indictment which alleges that '(he) on 5 March 2016 at Tumut in the State of New South Wales did drive a vehicle, namely a Toyota Landcruiser utility BJ-96-TN whilst under the influence of intoxicating liquor whereby the vehicle was involved in an impact as a result of which the death of Brett William Casey was occasioned.'" 1. At the penultimate paragraph of the Crown's written submissions dated 19 March 2020 the Crown submits: "The accused may be prosecuted and convicted of an offence of the alternative count notwithstanding the jury verdict of the primary count. Many of the elements of each offence are different. The question of negligence and the legal aspects of its many different forms was not a matter for determination by the jury." 1. Again, the word alternative is the word used in the Crown's submissions to describe the charge that is known shortly or commonly as Negligent Driving (Occasioning Death). I have parenthesised the words "occasioning death" as that is not an element per se but rather the potential maximum penalty is increased in the event that the negligent driving occasions the death. 2. If a charge is before the District Court attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act it cannot be an alternative and it is not inappropriate for it to be described as such. The charge of Negligent Driving (Occasioning Death) cannot be a back-up because of the issue of elements of the offence. The charge must therefore be a related charge. 3. Be that as it may, following the decision of Director of Public Prosecutions v Sinton (2001) 51 NSWLR 659; [2001] NSWCA 179 there is no impediment to this court now dealing with the charge. In that decision Stein J (Giles & Hodgson JJA agreeing) said at [16]: "It is apparent that the amendments with respect to back-up offences and related summary offences were designed to ensure the efficient administration of justice by conferring jurisdiction to deal with any such summary offences at the time of trial upon the District and Supreme Courts. The procedure to ensure that the trial court is aware of any such related summary offences involves the handing up of a certificate by the prosecuting authority detailing these charges at the time of committal. The question then arises as to whether a failure to so hand up a certificate, for which there is no clearly defined procedure (including its transmission to the court above), is fatal to the ability of the trial court to deal with the summary offence and results in such a prejudice to the respondent that a permanent stay of the summary proceedings is warranted." 1. His Honour went on to say at [47]-[49]: "The better and most convenient construction of the provision, indeed of Part 10 as a whole, is the facilitation of the determination of related summary offences by the courts. It does not aid the clear objectives of the provision to find that a failure to tender a certificate upon committal is fatal to the whole system. Again, as I have said, his Honour's construction defeats the obvious purpose of the provisions. [48] An accused person would be aware of any related or back-up summary charge, having been served with a summons. In this case, the respondent was in court at the time of committal when the prosecutor orally informed the magistrate of the existence of the summary related charge of negligent driving. He was also legally represented at the time. It is difficult to see what more the respondent would have learned from the handing up of the certificate. [49] Importantly, it seems clear that the respondent was not prevented from seeking that the trial court deal with the summary charge at the conclusion of his trial. His legal representative before the magistrate on 13 December 1999 acknowledged that no application was made to the trial judge and that, in any event, there was a need for the prosecutor to consent. He could have added that the trial judge retained a discretion not to hear the summary charge." 1. It is my understanding that the joint position of the parties is that this court should deal with the matters attaching to the s 166 Certificate and I propose to do so. The application 1. The Notice of Motion contains seeks two orders, namely: 1. That the proceedings be permanently stayed as they constitute an abuse of process; or in the alternative 2. It is not in the interests of justice for this court to deal with the offence and to dismiss the charge. Factual background 1. At the brief hearing of the Notice of Motion at the Wagga Wagga District Court on 27 May 2020 Mr Carroll, counsel for the applicant, submitted that it was not necessary for the court to go through the transcript of the proceedings at trial. The submission continued that the Notice of Motion could be determined on the Crown's opening, the summing-up and the closing addresses at trial. I indicated at the hearing of the Notice of Motion that the addresses of counsel were not transcribed. Further, I note at paragraph 3 of counsel's written submissions in support of the Notice of Motion he puts: "The applicant tenders the court file and record, including but not limited to committal depositions, the transcript and exhibits in the jury trial and the Crown case statement". 1. The chronology as set out above is drawn from my physical perusal of the court file. It appears from the court file that there were no defended proceedings at committal. The Crown case statement is not contained within the court file nor have either of the parties made it available to me. I had my Associate contact the parties and request that in the course of the preparation of these reasons. 2. Counsel refers to extracts from the trial transcript in the course of his written submissions. It seems to me that to properly deal with this matter I will have to review, at least briefly, the evidence at the trial. 3. The matter arises out of an impact that occurred at the intersection of Lambie and Sydney Streets, Tumut at shortly after 4.30pm on Saturday 5 March 2016. The applicant was driving a Toyota Landcruiser utility registered BJ-96-TN and the deceased Brett Casey who was riding an unregistered motor cycle. The applicant was driving north in Lambie Street and the deceased Mr Casey was riding south in that street. The applicant executed a right hand turn in to Sydney Street. It was in the course of that manoeuvre that the impact between those two vehicles with the motor cycle impacting with the rear of the passenger's side tray of the utility. Brett Casey died at the scene of injuries sustained in the impact. There was no suggestion that meteorological conditions contributed to the impact. The impact occurred about two hours before sunset. 4. Lambie Street runs generally north-south and Sydney Street runs generally east-west. Constable Hayward the police officer in charge (OIC) of the case gave the following at p 5:26 and following: "The collision site was at the intersection of Lambie Street and Sydney Street. Lambie Street is straight with a small dip when approaching Sydney Street in the direction of travel of the motor cycle, being a southerly direction. Despite the dip there is clear vision of the intersection well prior to reaching it. When travelling upon Lambie Street in a northerly direction, being the direction of the travel of the Toyota the road is also straight. There is several hundred metres of clear and unobstructed vision part the intersection of Sydney Street." 1. There was no suggestion that the road surface was a contributing factor to the impact. There was an issue at trial of the topography but not the road surface itself. The area where the impact occurred is limited to 50 km/h but there is no suggestion that excessive speed contributed to the impact. Neither vehicle had any mechanical defect that contributed to the impact. The deceased Brett Casey was a disqualified driver. 2. Messrs Adam Moorby and Brian Henderson where in Mr Henderson's Ford sedan at the intersection at the time of the impact. Mr Moorby was driving and they were on their way to go fishing at Blowering Dam. They were proceeding in an easterly direction in Sydney Street and stopped at the stop sign. Both made observations of the vehicles. Mr Moorby was found to be an unfavourable witness and the Crown was granted leave (essentially without opposition from counsel for the accused at trial) to cross-examine. 3. Mr Moorby gave evidence that the vehicle he was driving was stopped at the stop sign (p 59:12). He saw the deceased's motor cycle approaching the intersection. He also saw the applicant's vehicle. He realised it was the applicant's vehicle after the impact. He had known the applicant for 29-30 years (p 60). He was friendly with the applicant. He saw the applicant's vehicle start to turn (p 61:41). As that vehicle started to turn he looked again at the motor cycle which would have been at least 50 metres away (p 62:48). The applicant cut the corner a "bit" (p 63:13). The applicant's vehicle was doing about 10-15 km/h. He (p 63:20) "looked back and then the motor bike was right on top of the four-wheel drive…" 4. He agreed with the proposition that the motor bike was travelling at speed (p 65:13). He then went on to agree with the suggestion that the motorbike was travelling between 80 and 120 km/h (p 65:48). At p 66:32 he said that the motor bike was "moving". A little later he conceded that he might have been reconstructing and that he was assuming that the bike was travelling too quickly (p 67:11). However Mr Moorby also gave evidence that upon impact the deceased Mr Casey "went straight on to the ground" (p 64:15). This was one of the factors that led the OIC of the case, an experienced crash investigator to opine that the impact was not high (meaning high speed) impact. 5. The cross-examination of Mr Moorby consisted mainly of parts of his police statement being put to him and him being invited to agree. At p 74:31 it was put and he agreed that in his statement he said he was immediately shocked how fast the motor cycle was travelling. I note also that counsel for the applicant at the trial (who is not counsel representing the applicant in the present application) put a number of inadmissible questions at pp. 77-78 as various opinions of Mr Moorby. Indeed the subject matter of those questions was raised by the Crown in the absence of the jury and I directed the jury to ignore that part of the evidence. 6. Brian Henderson then gave evidence. He was in the passenger's seat of his vehicle that Mr Moorby was driving. He saw the applicant's utility before he saw the motor cycle; it was about 50 to 60 metres away from him when he first saw the utility (p 84:18). He then saw the motor cycle which was when he first saw it about 100 metres. He saw the motor cycle take evasive action and then there was the impact – see pp 85-6. A little later he saw that the motor cycle went over the centre line in the course of the evasive action – p 88:20) The motor cycle was about 10 metres from the utility when it took the evasive action. The utility was travelling within the speed limit when he first saw it but the motor cycle might have been "doing a little bit more, maybe" (p 87:16-33). He witnessed the impact. 7. It was put to Mr Henderson but denied in cross-examination (p 93:39) that his evidence involved some reconstruction. He maintained that he had experienced flashbacks of the impact. He maintained that the speed of the motor cycle did not seem excessive to him (p 95:05). 8. Dr Perl, a pharmacologist, then gave evidence. The Crown led the evidence in chief in a somewhat unusual fashion by having Dr Perl read a good portion of her report. The report was read very quickly and contained a lot of data and references to professional papers and studies on pharmacology. Given the manner in which the evidence was led from Dr Perl I found it slightly difficult to follow. I dare say a jury would likewise have had similar difficulties. 9. On the issue of Dr Perl's evidence the following is drawn from the summing-up: "Dr Perl gave evidence (p 113/24) that at the time of the collision the accused would not have had a blood alcohol concentration less than 0.097 grams per 100 millilitres of blood but it is likely to have been higher. She went on to say that above 0.08 grams per 100 mls some general driving skills would be impaired and above 0.1 there would be significant impairment of driving skills. She also said (p 116/5) that with a blood alcohol concentration of 0.05 grams per 100 mls of blood (the legal blood alcohol limit for driving in New South Wales) the risk of a crash is around 1.4 greater than with a zero blood alcohol concentration. She also gave evidence about the effects of alcohol on driving ability such as the impact on peripheral vision. Dr Perl also gave evidence on the effect of methyl amphetamine on driving skills. You will remember that Brett Casey had that substance in his system. The effects of that drug included that it was more likely to engage in risk taking behaviour." 1. At p 118:48 Dr Perl said in answer to a question in cross-examination that the concentration of methyl amphetamine in the deceased was high and given such a high concentration impairment (of driving skills) was probable. Counsel appearing at trial sought to cross-examine Dr Perl on the issue of the impairment of the deceased so far as the deceased taking any evasive action was concerned. That line of questioning was disallowed for reasons that I gave during the trial. As I observed in the summing up on a number of occasions there was no obligation on the deceased to take evasive action. In this regard I note what I said to counsel for the accused at the trial at p 122:32 and continuing: "You've taken every opportunity it seems to me to deflect the blame to the deceased. Now there is no getting away from the fact that he shouldn't have been on the road. He was disqualified, the vehicle was unregistered and his driving ability was impaired because of methyl amphetamine. Now I'll permit further cross-examination of Dr Perl on the extent of the likely effect of the affectation or the likely extent of the affectation, but I ask you please to refrain from further questions inviting the jury to somehow infer that that it was the responsibility of Mr Casey to try and avoid this accident"." 1. Constable Dean of the Highway Patrol who was one of the first officers at the scene then gave evidence. He submitted the applicant to a road side breath test which was positive. Constable Dean opined that the applicant was moderately affected by intoxicating liquor (p 141:16). The applicant was then taken to the Tumut Police Station and subjected to a breath analysis that at 17:58:30 produced a reading of 0.119 grams of alcohol in 210 litres of blood. The applicant's licence was confiscated. 2. Counsel at trial cross-examined Constable Dean on his opinion of the affectation of the accused. The officer maintained that the applicant was moderately affected at the scene (p 146:04). 3. Constable Hayward again gave evidence and through him was tendered an in-car video of various approaches to the intersection of Lambie and Sydney Streets in Tumut. That became exhibit S – p 153:50. There was a deal of cross-examination on the images essentially to the effect of the vision that the applicant and the deceased would have had as they approached the intersections from the different directions that they did. 4. The accused gave evidence. He went to work in the early hours of 5 March 2016 and returned home at about 12.30pm. He drank three "longnecks" of full strength beer, his last beer being finished at 4.30pm. He was drinking steadily (see generally pp 176-7). He set off shortly after 4.30 in order to go to McDonalds to get something to eat. At p 178:05 the applicant gave the following evidence: "Headed down Lambie Street. And I was going down the hill, and as I was approaching the intersection, Lambie Street and Sydney Street, I looked. I could see the motorbike coming up to the rise. When I made a turn right into Sydney Street, I was in Sydney Street, and I felt a bump right at the end of the left hand side back tray". 1. The applicant went on to say that the bike was 80 to 100 metres from him when he started to turn. He maintained that the bike was speeding. He was doing about 15 – 20 km/h at the time he made the turn (see generally p 178). Under cross-examination the applicant also said that the motor cyclist was speeding – p 185:14. He further said (p 185:28) that he saw the bike before he commenced his turn. On the issue of the applicant's affectation by liquor the following appears at p 186:04 and continuing: Q: You knew that, having consumed three longnecks of beer, that you would be over the legal limit to drive, didn't you? A: Yes Q: You knew that you would be well over that limit? A: Yes Q: You knew that you would have a reduced capacity to drive your vehicle safely? A: Yes Q: You knew your reactions times would be less? A: Yes, I would say that. Yes. … Q: What I'm saying is that you knew your ability to react would be affected because of the alcohol you'd had to drink? A: Yes. 1. The summing up contained the following direction: "Driving under the influence of alcohol means that, because of the effect of the alcohol upon the accused Bernard King he was no longer capable of, and did not in fact, exercise proper control and management of the vehicle which resulted in the impact between Brett Casey and him. A person is under the influence of alcohol for the purpose of this offence where his ability to manage and control a motor vehicle is impaired by the voluntary intake of alcohol. A person may be "under the influence" in this sense without being drunk. Whether a person lacks full capacity to control and manage a motor vehicle in that sense, so as to be committing an offence, depends not only on direct evidence of what he may have consumed before the impact, but also on any inference or conclusion which you may properly draw from the circumstances before the impact including his manner of driving shortly before and up to the time of the impact. In this respect, the Crown relies upon the accused executing a right hand turn from Lambie Street to Sydney Street in the face of oncoming traffic and cutting the corner in the process in the direct path of Brett Casey who was travelling down Lambie Street in the opposite direction. On the evidence you may well think there is no dispute that the accused executed that turn. On the issue of the accused cutting the corner the Crown relies on the evidence of the observations of Constable Hayward particularly the evidence of the tyre mark on the road surface. The Crown also relies on the evidence of Brian Henderson who gave evidence that the accused cut the corner. The Crown case is further that the accused had more than an ample opportunity to observe Brett Casey but he did not see him at the point he commenced the turn (accused's evidence p 194/41-42). The case for the accused on this issue is that if he did cut that corner as he was doing the right hand turn it was only very slightly. Further, the case for the accused is that he observed Brett Casey who was 80 to 100 metres away when he commenced the curve and on the evidence of the accused and Mr Anthony Evans who gave evidence last Friday Brett Casey was travelling at a very excessive speed. As I understand the case for the accused is that the impact was unavoidable because of the speed at which the deceased was travelling. It is for you as the judges of the fact to determine whether or not Brett Casey was travelling at an excessive speed. However, as I hope to make clear very soon, even if you do conclude that Brett Casey was travelling at an excessive speed that does not by that fact alone entitle the accused to be found not guilty. The manner in which a person drives a vehicle includes all matters connected with the management and control of the vehicle when it is being driven, including its speed. As I have already said the driving includes the execution of a right hand turn in the face of oncoming traffic and cutting the corner." 1. Counsel for the applicant in the application present under consideration appropriately concedes at paragraph 41 of his written submissions, "Had the jury followed the directions provided to them by your Honour and applied it to the evidence it was their duty to find this element (i.e. driving under the influence of intoxicating liquor) established. 2. Be that as it may the Crown submits that given that it was never conceded by counsel for the accused at the trial that the accused was affected by liquor and given the cross-examination of Constable Dean at the trial it may well have been the case that the jury were not satisfied beyond reasonable doubt that the accused was driving under the influence of liquor. 3. Under cross-examination at p 144:21 Constable Dean confirmed his opinion that the accused was moderately affected by liquor when he saw him at the scene of the impact. The evidence continued at p 144:25: Q: Do you say that in taking into account that completion you were cognisant of the fact that he had just been involved in a fatality? A: You could smell the alcohol very strongly from his breath. Q: In fact he told you he'd been drinking and he told you a detailed history of drinking but this man that you're looking at has just been involved in a fatality. Would you not expect that that would have some affect upon the appearance of the person? A: He was relaxed, very relaxed. Q: Was the answer to the question, yes, I would expect it have some affect on his appearance? A: It would have some affect on his appearance but again you could smell the alcohol very strongly. 1. The accused gave the officer a history of what liquor he had consumed back at the police station rather than at the scene (p 145:15). The officer again confirmed that the accused was moderately affected at the scene (p 146:04). The officer was then asked by me, "No, Constable, Mr Kennedy I think is asking what was it that you observed about Mr King that led you to conclude that he was moderately affected by liquor?" The answer (p 146:16), "He was obviously relaxed which could be the effect of alcohol. Sleepy, slow in movements". 2. Part of the summing-up is extracted above. I also dealt briefly with the evidence of Dr Perl and the evidence of the accused, which is also set out above in these reasons. Neither counsel sought any further direction on the issue of driving under the influence despite both having the summing up in its entirety the evening before it was delivered. 3. However, the accused maintained (p 188:30) that when he first saw the motorcycle he was of the opinion that it was safe to make the turn. The applicant maintained (p 189:15) that he did not turn in front of the motorbike. At p 190:30 the following appears: Q: What about this Mr King. Is it possible that because you were so affected by alcohol you didn't see Mr Casey approaching on his bike and you turned straight in front of him killing him? A; No I never. I did see him coming to the rise and it was safe to turn into Sydney Street and I didn't see him after that because I was looking straight ahead to see where I was going. 1. Mr Anthony Evans was also called in the case for the applicant at the trial. At the time of the impact he was at the BUPA retirement home, which is at the intersection of Lambie and Sydney Streets in Tumut. He heard a loud explosion type sound. When asked to describe what he heard he said (p 206:47), "A loud bike giving it to it [incorrectly transcribed as taut in the transcript], going through the gears." He went to the scene and saw the aftermath. 2. Although the element of the applicant driving under the influence was not conceded at the trial given the state of the evidence, particularly the concessions made by the accused when under cross-examination it seems to me that there could be no doubt at all that at the relevant time the accused was in fact driving under the influence of alcohol. In this regard there is real force in the submission by Mr Carroll, counsel for the applicant, that if the jury followed the directions given and applied those directions to the evidence it was their duty to find that the accused was driving under the influence of liquor. 3. Accordingly despite the submissions by the Crown it seems to me that essentially the only issue that could have reasonably fallen for the determination by the jury at trial was whether the accused had satisfied them on the balance of probabilities that the statutory defence provided for by s 52A(8) was established. 4. I recall asking the Crown Prosecutor at least once (see for e.g. when the matter was mentioned on 10 August 2020) whether the Crown relied on the accused being under the influence of liquor as part of the case or a particular going to establish negligence. The Crown replied in the negative. 5. The following is the direction contained in the summing up as to the statutory defence. Again I note that neither counsel raised any issue with this direction at trial. "The statutory defence is that the death of Brett Casey occasioned by the impact was not in any way attributable to the fact that the accused was under the influence of intoxicating liquor. While the onus of proving this fact rests on the accused Bernard King, he does not have to prove it to the high standard of proof beyond reasonable doubt: that is the standard of proof placed only on the Crown. It is sufficient if the accused proves that the death of Brett Casey occasioned by the impact was not in any way attributable to the fact that he was under the influence of intoxicating liquor on the balance of probabilities. The "balance of probabilities" means more likely than not, or more probable than not. I remind you that the essential elements or ingredients that the Crown is required to prove must be proved beyond reasonable doubt. I have now set those out twice, the second time only very recently. However, if you are satisfied that the Crown has proved those facts beyond reasonable doubt, you then come to consider whether the accused has proved that that the death of Brett Casey occasioned by the impact was not in any way attributable to the fact that the accused was under the influence of intoxicating liquor. The standard to which the accused is required to prove this fact is on the balance of probabilities. The case for the accused is that on the evidence of Dr Perl Brett Casey was affected by the methylamphetamine in his system. A person so affected is more likely to engage in risk taking behaviour. The case for the accused is that Brett Casey was travelling at a very excessive speed. In this regard the case for the accused is that the accused saw Brett Casey from 80-100 metres away and was of the opinion that he had sufficient time to execute that right hand turn. The accused also relies on the evidence of Mr Evans. The case for the accused is that the impact was in no way attributable to the accused being affected by intoxicating liquor because in effect the impact was unavoidable because of the very excessive speed at which Mr Casey was riding his motor cycle. The case for the Crown is that you would not find on balance that the impact occasioning the death was in no way attributable to the accused driving while under the influence of intoxicating liquor. The Crown reminds you of the words "in no way attributable". The Crown relies on the evidence of Constable Hayward as to his opinion that it was not a high speed impact. The Crown also relies on the evidence of Brian Henderson who said that the bike was not speeding. The Crown also relies on the evidence of Dr Perl. The Crown case is that the accused did not see the deceased because he was affected by the intoxicating liquor that he had consumed. Again, both counsel have addressed on the evidence on this aspect at some length. I seek only to remind you of the respective cases. There a couple of further matters on which I need to give you directions. The fact that Brett Casey was affected by the methylamphetamine in his system does not by that fact alone entitle you to find that the accident was in no way attributable to the fact that the accused was driving under the influence of intoxicating liquor. The relevance of the affectation of Brett Casey by that drug is that he was more likely to engage in risk taking behaviour. Further, there was no obligation on Brett Casey to take evasive action. Apart from the fact that at law there was no obligation on Brett Casey to take evasive action it would be mere speculation to determine the outcome of any evasive action that may or may not have been taken by Brett Casey. You must not speculate about anything that is not the subject of evidence. If, having considered the relevant evidence and submissions in relation to the matter, you are of the view that it is more probable than not, or more likely than not, that the death of Brett Casey occasioned by the impact was not in any way attributable to the fact that the accused was under the influence of intoxicating liquor then you must return a verdict of "not guilty". If, on the other hand, you are not so satisfied, then you should find the accused guilty of the offence charged, provided always, of course, (as I have indicated) that you are satisfied, beyond reasonable doubt, as to the matters which the Crown must prove." 1. Part of the direction was the case for the accused is that the impact was in no way attributable to the accused being affected by intoxicating liquor because in effect the impact was unavoidable because of the very excessive speed at which Mr Casey was riding his motor cycle. I expressed it in this way as that was what I understood to be the defence case. With respect to counsel who appeared at the trial the issue was really never clearly enunciated as such. Again, with respect to trial counsel the position of the accused as to whether he was in fact under the influence of liquor was not made clear in the final address. I was left essentially having to divine the defence case so far as directions to the jury was concerned. 2. It follows given the verdict of not guilty that the jury must have been satisfied on the balance of probabilities that the impact was in no way attributable to the accused being under the influence of intoxicating liquor. Legal Principles – application for a permanent stay of proceedings 1. Mason CJ in Jago v District Court of NSW (1989) 168 CLR 23 at pp. 33-4 said: "The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial. (References deleted) At the same time the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent say is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case…. To justify a permanent stay of criminal proceedings, there must be a fundamental defect which does to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences". 1. On the issue of "fairness", Deane J in Jago at p 57 said: "The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly to be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve and undesirably, but unavoidably, large content of essentially intuitive judgment." 1. In order for this court to grant a permanent stay of proceedings it will be necessary for the applicant to satisfy me that there is nothing else that I am able to do by way of order or otherwise to relieve against the unfair consequences. 2. As counsel for the applicant sets out in the course of a mention of these proceedings I referred to the parties to the decision of Davies J in TR v Director of Public Prosecutions [2020] NSWSC 255, which seems to me (with unfeigned respect to his Honour) as an excellent and comprehensive summary of the relevant legal principles on a stay of proceedings. At [39]-[51] Davies J said: "The following principles may be derived from cases, principally in the High Court of Australia, which have considered the concept of abuse of process and a stay of proceedings. [40] First, the Court has a prima facie obligation to exercise its jurisdiction. In Jago v District Court of NSW Gaudron J said (at p 76): 'The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised.' [41] In Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50, the plurality said at [11]: 'Of particular relevance to the present case is the observation of the plurality in Batistatos, to which reference was made in Dupas v The Queen, which emphasised that the power to stay proceedings for abuse of process applies to civil and criminal proceedings "with somewhat different emphases attending its exercise". In Dupas, this Court reiterated that the power "exist[s] to enable the courts to protect themselves and thereby safeguard the administration of justice". But the Court emphasised that, in considering whether to grant a stay, there is a "need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial ... as a permanent stay is tantamount to a continuing immunity from prosecution". [42] In Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20, the plurality cited with approval at [17] passages from a judgment of McGrath J, giving the reasons of the New Zealand Court of Appeal in Fox v Attorney-General (NZ) [2002] 3 NZLR 62: 'In our system of government, the discretion to prosecute on behalf of the state and to determine the particular charges a defendant is to face is part of the function of Executive Government rather than the Courts. That allocation of the function recognises the governmental interest in seeing that justice is done and community expectations that criminal offenders are brought to justice are met.' After noting that the decision by a public official to prosecute involves the exercise of a public power, McGrath J continued: 'The Courts traditionally have been reluctant to interfere with decisions to initiate and continue prosecutions. In part this is because of the high content of judgment and discretion in the decisions that must be reached. But perhaps even more so it also reflects constitutional sensitivities in light of the Court's own function of responsibility for conduct of criminal trials.' [43] Most recently, in Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions, the judgment of Kiefel CJ, Bell and Nettle JJ said (at [106]): 'Certainly, as this Court has stated repeatedly, a permanent stay of a criminal prosecution is an extraordinary step which will very rarely be justified. There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and, for that reason, it has been said that a permanent stay of prosecution should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial. But, as this Court has also stated, there is, too, a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute.' [44] Secondly, and coupled with the first principle is the notion that it is only in exceptional cases that a stay will be granted: Jago at pp.31 and 76; Dupas at [33]; Strickland at [62], [100], [106], and [248]; The Queen v Glennon (1992) 173 CLR 592 at 605; Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10 at [136]. [45] Thirdly, it is clear that the categories of abuse of process which might result in a stay extend beyond the initiation of proceedings for an ulterior and improper purpose. In Rogers v The Queen (1994) 181 CLR 251 Mason CJ said (at pp. 255-256): '[3] … The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party's genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories (Hunter v. Chief Constable (1982) AC at 536 per Lord Diplock.). Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process. [4] Williams v. Spautz ([1992] HCA 34; (1992) 174 CLR 509) is a case in point. Although the majority judgment concluded that there was, in that case, an abuse of process consisting in the initiation of proceedings for an ulterior and improper purpose, the majority recognized that the concept extends beyond use of court processes for ulterior purposes to the use of such processes so as to cause vexation or oppression (ibid. at 520, endorsing Moevao v. Department of Labour (1980) 1 NZLR 464 at 482.). In Walton v. Gardiner ((1993) 177 CLR 378 at 395.) it was pointed out that the majority judgment contained nothing which supported the proposition that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing. In that case, Mason CJ, Deane and Dawson JJ stated that the inherent jurisdiction of a superior court to stay its proceedings for abuse of process (ibid. at 393.): "extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness". Their Honours went on to say (ibid.): '(P)roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which had already been disposed of by earlier proceedings'. [5] Statements to the same effect have been made by the House of Lords (Hunter v. Chief Constable (1982) 1 AC at 536.) and the New Zealand Court of Appeal (Moevao v. Department of Labour (1980) 1 NZLR at 481.). These statements indicate that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute. This led the majority in Walton v. Gardiner to state that the question whether criminal proceedings should be permanently stayed was to be determined by a weighing process involving a balancing of a variety of considerations ((1993) 177 CLR at 395-396.). Those considerations, which reflect the two aspects of abuse of process outlined above, include (ibid. at 396.): 'the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice'. [46] In the same case, McHugh J said (at 286-287): [16] Inherent in every court of justice is the power to prevent its procedures being abused (Hunter v. Chief Constable of the West Midlands Police [1981] UKHL 13; (1982) AC 529 at 536.). Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process. In Walton v. Gardiner ((1992) 177 CLR 378 at 393.), Mason CJ, Deane and Dawson JJ said that the jurisdiction to stay proceedings that are an abuse of process "extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness". Their Honours gave three examples of such an abuse of process (ibid.). One of them is the case where an estoppel cannot be established but the proceedings are unjustifiably oppressive because it is sought to litigate an issue which has already been disposed of by earlier proceedings (See, for example, Reichel v. Magrath (1889) 14 App Cas 665 at 668; Connelly v. DPP (1964) AC 1254 at 1361-1362.). Reichel v. Magrath (1889) 14 App Cas 665.) is the paradigm example of such a case. [47] In Moti the plurality said at [10]: 'As four members of this Court said in Batistatos v Roads and Traffic Authority (NSW), "[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories". In Ridgeway v The Queen, Gaudron J stated that the power extended to proceedings that are "instituted for an improper purpose", "seriously and unfairly burdensome, prejudicial or damaging" and "productive of serious and unjustified trouble and harassment". In Williams v Spautz, the plurality distinguished between "abuse of process in the sense of proceedings instituted and maintained for an improper purpose" and "abuse of process [that] precluded a fair trial". In Rogers v The Queen, McHugh J concluded that, although the categories of abuse of process are not closed, many such cases can be identified as falling into one of three categories: "(1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute'. [48] In Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 Mason P (with whom Beazley JA agreed) said at p.134: 'Abuse of process covers a multitude of ills. The power to stay proceedings for abuse of process seeks to further a number of goals, including safeguardingan accused person from oppression and vexation, maintaining fairness in procedure, and precluding the undermining of confidence in courts generally." see Rogers v The Queen (1994) 181 CLR 251 at 255-256, 286-287; Ridgeway v The Queen (1995) 184 CLR 19 at 60-61, 74-75, 92-93; see also Choo, "Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited" [1995] Crim LR 864. [49] In Strickland, Edelman J said: '[248] A permanent stay of proceedings for an abuse of process is a measure of last resort. It will be ordered where there is no other way to prevent an unfair trial. It will also be ordered where there is no other way to protect the integrity of the system of justice administered by the court. The latter category, which can be conveniently described as protecting the "integrity of the court", is the concern of these appeals. [249] "Abuse of process" may not be the best language to describe the category where the focus is upon the integrity of the court generally rather than its particular processes. The rationale for this category has been described in various ways. The rationale has been described as being "a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law". It has been described as avoiding "an erosion of public confidence". It has also been described as arising where a trial would bring the administration of justice into disrepute. Each of these verbal formulations attempts to capture a concern for the systemic protection of the integrity of the court within an integrated system of justice. The possibility of an unfair trial, or a degree of unfairness in a trial, may be a factor contributing to that concern. But an unfair trial is not a prerequisite for a permanent stay in this category. [50] Fourthly, although the decision to stay proceedings is said to discretionary, the discretion is not at large. Whether a stay should be granted is bound up with a finding of abuse of process. In R v Carroll (2002) 213 CLR 635; [2002] HCA 55 Gaudron & Gummow JJ said at [73]: 'The power to stay is said to be discretionary. In this context, the word "discretionary" indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not.' [51] Fifthly, fairness to an accused is not the sole criterion when a court decides whether a criminal trial should proceed: Jago at p.30; Williams v Spautz (1992) 174 CLR 509 at p.521; Dupas at [37]. However, fairness is a significant consideration where vexation or oppression is alleged: Walton v Gardiner at p 396; Shirvanian at p 134; Rogers at [4], [5] and [16]. It may also be a concern within the context of protecting the integrity of the court: Moti at [57]; Strickland at [249]; R v YI [2004]" 1. As Edelman J said in Strickland: "A permanent stay of proceedings for an abuse of process is a measure of last resort. It will be ordered where there is no other way to prevent an unfair trial. It will also be ordered where there is no other way to protect the integrity of the system of justice administered by the court". 1. As I earlier observed in order for a permanent stay to be granted there could be no other order or course I could take in order to avoid any unfair consequences to the accused. Before determining the issue of whether a permanent stay of proceedings should be granted in respect of the Negligent Driving charge it is appropriate to consider the issue of incontrovertibility. Double jeopardy and the incontrovertibility principle 1. Double jeopardy and incontrovertibility are not identical concepts. Gleeson CJ and Hayne J in their joint judgment in The Queen v Carroll (2002) 213 CLR 635 said at [40]: "There are cases where a charge of an offence would be manifestly inconsistent on the facts with a previous acquittal, even though no plea of autrefois acquit is available. Since, in most cases of trial by jury, it will not be known why the accused was acquitted, and in many cases the reason may simply be that the jury had a doubt about whether the prosecution had established some element of the offence, the inconsistency, if it exists, will appear from a comparison of the elements of the new charge with the verdict of not guilty of the previous charge, understood in the light of the issues at the first trial." 1. Hamill J in additional comments in Nash v R [2019] NSWCCA 124 (which at the time of the preparation of these reasons was a restricted judgment) observed (at [43]) that double jeopardy is a more general principle than double jeopardy. 2. McClellan CJ at CL in Gilham v R (2007) 178 A Crim R 72 said at [149]-[152]: "Although Garrett was decided in accordance with the incontrovertibility principle the word "incontrovertible" first appeared in the judgment of Deane and Gaudron JJ in Rogers (at 275, 277, 278, 280). It is founded in the principle of finality (Carroll at [48]). The reach of the principle has not yet been authoritatively described. There is no difficulty when it is suggested that there is conflict with a prior verdict where the decision is exposed eg Garrett, Storey. However, in Rogers Deane and Gaudron JJ referred to "the need for decisions of courts, unless set aside or quashed, to be accepted as incontrovertibly correct" (at 273) (emphasis added). Rogers was not concerned with a verdict but rather with the admissibility of a record of interview which had been rejected after argument at an earlier trial. The court held that it could not be tendered at the later trial where a decision to admit it would be at odds with the earlier decision to reject it. The law must protect against "the scandal of conflicting decisions." (see Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd edition, 1996). [150] Carroll concerned the prosecution of an accused person for perjury for allegedly lying at his earlier trial. He had been tried for the murder of a child. He gave evidence at the trial when he denied that he killed her. It was later alleged that that evidence was a lie. Gleeson CJ and Hayne J accepted that the principle described by Barwick CJ in Garrett (at 445) that "the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict" is a principle of great width (at [37]; see also Filipowski at [52]). Their Honours further accepted that the principle requires that verdicts of acquittal be "incontrovertible" but they do not define the limits of the principle saying that "it would be unwise to attempt to do so" (at [45]). [151] Their Honours accepted that the protection afforded by the law extends beyond the verdict itself. A further prosecution may be oppressive and an abuse of process "even though there is no direct inconsistency between the new charge and the earlier verdict" (at [47]). Their Honours concluded that where it is argued that the later prosecution seeks to controvert an earlier verdict it is necessary to consider the elements of the relevant offences. They wrote that there is "much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged" (at [47]). Because "it is what is decided in litigation that is final" and cannot be controverted (at [48]), identifying the elements of the offence required to be proved at the first trial will establish the matters which have been decided and will enable a decision to be made at the second trial as to whether the charges may be pursued or particular evidence tendered. [152] Their Honours also accepted that the "[f]inality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence which might have the incidental effect of casting doubt upon, or even demonstrating the error, of an earlier decision" (at [50]). Their Honours illustrate the point by reference to the tender of similar fact evidence relating to offences of which the accused was previously acquitted. As I understand their reasons, although the verdict in the later trial may be justified or supported by the tender of that evidence, because the verdict relates only to the later charge and does not determine any matter determined in the previous proceedings, that verdict does not have the potential to controvert the earlier decision. There cannot be inconsistent verdicts." 1. In the decision of the High Court in Garrett v The Queen (1977) 139 CLR 437 where at 445 Barwick CJ said: "…to have said that the acquittal was neutral was to deny the applicant the full benefit of the acquittal and not to lay that emphasis upon it for which the circumstances called." 1. Barwick CJ went on to say at p 445: "The relevant principle is that the acquittal may not be questioned or called in question by any evidence, which, if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment: it is res judicata…" 1. The Chief Justice went on to say that he did not find that particular case an appropriate vehicle for the discussion as to whether issue estoppel operates in criminal proceedings. The later decision of Carroll puts that question beyond any doubt. Clearly, it does not. 2. However, on the issue of an accused receiving the full benefit of an acquittal there is also the decision of the Court of Criminal Appeal of New South Wales in Gilham v The Queen (2012) 224 A Crim R 22. The Court (McClellan CJ at CL, Fullerton & Garling JJ) said at [150]- [152]: "There remains the question, central to the second ground of appeal, of what affording the applicant the "full benefit" of his acquittal entailed in the context of the trial. As McClellan CJ at CL recognised in the previous appeal, and as was inherent in the reasoning of Spigelman CJ (at [31]), the trial of the applicant for the murder of his parents could not take place without reference to the death of Christopher and the fact that the applicant admitted killing him. That required the trial judge to direct the jury in a manner which made plain that the applicant had admitted killing Christopher but had always denied killing his parents. Having been provided with the statement of agreed facts which was tendered at the trial, the jury were made aware of the history of the matter and the applicant's consistent response to the Crown's allegations. [151] In our opinion the trial judge's directions on these issues were appropriate save in one crucial respect. The trial judge correctly identified that the applicant's plea to manslaughter in 1995 was relevant to establishing the context of the alleged offences, the consistency of the applicant's account of the incident, and the reasons for delay in the laying of charges against the applicant for the murder of his parents. But if the plea to manslaughter was relevant to an assessment of the facts in issue, so too were the consequences that flowed from it, one of which was the fact of the applicant's acquittal of Christopher's murder. [152] Once it became apparent that the acquittal was relevant, the applicant became entitled to the "full benefit" of that acquittal: Garrett at 445 (Barwick CJ). Where evidence of an acquittal is admitted, it is not enough for a trial judge to instruct a jury, without further explanation, that a defendant is to be given the full benefit of his or her acquittal. The jury must be told what it means in the circumstances of the instant case to give the defendant the full benefit of the earlier acquittal: Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492 at [31] (Gleeson CJ, Heydon and Crennan JJ). In the context of the trial, that required the trial judge to inform the jury that the applicant's acquittal of murder constituted a formal acknowledgement by the sentencing court that the Crown could not, as at April 1995, negative the reasonable possibility that Christopher had killed Mr and Mrs Gilham, and that in doing so he provoked the applicant to kill him. That this was an assumption which underlay the acquittal is apparent from the agreed facts before the sentencing court, which read in part: 'The accused has given an account of events to Police which in their simplest form are a feasible account of what may have happened. The investigation to date has been unable to refute that scenario, despite a thorough scientific analysis and evaluation of the scene and available evidence.'" 1. One question that immediately occurs is what is the precise meaning of the expression that the accused must be given the full benefit of the acquittal? In Washer v Western Australia (2007) 82 ALJR 33 at [31] Gleeson CJ, Heydon & Crennan JJ said: "In most cases, for a trial judge simply to tell a jury that an accused should be given the full benefit of his or her acquittal would convey little. A likely response would be a request from the jury for an explanation. At that stage, the trial judge would have to address the question earlier identified: what, in the particular circumstances of the second case, does giving the accused the "full benefit" of the earlier acquittal entail? The admonition cannot be left hanging in the air. There could be cases in which its meaning would be reasonably clear; in other cases it may be quite obscure. To use it without further explanation would always be dangerous, and sometimes positively misleading." 1. In his written submissions Mr Carroll for the applicant relies on the decision of the Court of Criminal Appeal in Gilham v R (2007) 178 A Crim R 72; [2007] NSWCCA 323. Spigelman CJ said at [55]: "The series of cases in the High Court, from Rogers and Pearce through Carroll to Filipowski, apply the principle of incontrovertibility on the basis of the values underlying the principle. Such a focus requires this Court not to be concerned with technical distinctions. The pith and substance of the disposal of the original proceedings was that the Applicant was acquitted of murder on the basis that he acted under the provocation of his brother having killed their parents. This is not simply an inconsistency. Although a different judgment is clearly open, this is, in my opinion, a manifest inconsistency in accordance with the test applied in Carroll." 1. It is the expression "pith and substance" upon which Mr Carroll bases his submission. Further, Mr Carroll's submission relies upon the manner in which the defence case on the statutory defence as set out in s 52A(8) of the Crimes Act was put to the jury in the course of my summing up. As I have already observed both counsel had the summing up in its entirety (perhaps with the exception of a summary of counsel's closing arguments) before it was delivered to the jury. Neither counsel took issue with anything in that summing up and neither counsel sought any redirection. Relevantly I put to the jury: "The case for the accused on this issue is that if he did cut that corner as he was doing the right hand turn it was only very slightly. Further, the case for the accused is that he observed Brett Casey who was 80 to 100 metres away when he commenced the curve and on the evidence of the accused and Mr Anthony Evans who gave evidence last Friday Brett Casey was travelling at a very excessive speed. As I understand the case for the accused is that the impact was unavoidable because of the speed at which the deceased was travelling. It is for you as the judges of the fact to determine whether or not Brett Casey was travelling at an excessive speed. However, as I hope to make clear very soon, even if you do conclude that Brett Casey was travelling at an excessive speed that does not by that fact alone entitle the accused to be found not guilty. " 1. Late when dealing with the statutory defence I put to the jury in the summing up: "The statutory defence is that the death of Brett Casey occasioned by the impact was not in any way attributable to the fact that the accused was under the influence of intoxicating liquor. While the onus of proving this fact rests on the accused Bernard King, he does not have to prove it to the high standard of proof beyond reasonable doubt: that is the standard of proof placed only on the Crown. It is sufficient if the accused proves that the death of Brett Casey occasioned by the impact was not in any way attributable to the fact that he was under the influence of intoxicating liquor on the balance of probabilities. The "balance of probabilities" means more likely than not, or more probable than not. I remind you that the essential elements or ingredients that the Crown is required to prove must be proved beyond reasonable doubt. I have now set those out twice, the second time only very recently. However, if you are satisfied that the Crown has proved those facts beyond reasonable doubt, you then come to consider whether the accused has proved that that the death of Brett Casey occasioned by the impact was not in any way attributable to the fact that the accused was under the influence of intoxicating liquor. The standard to which the accused is required to prove this fact is on the balance of probabilities. The case for the accused is that on the evidence of Dr Perl Brett Casey was affected by the methylamphetamine in his system. A person so affected is more likely to engage in risk taking behaviour. The case for the accused is that Brett Casey was travelling at a very excessive speed. In this regard the case for the accused is that the accused saw Brett Casey from 80-100 metres away and was of the opinion that he had sufficient time to execute that right hand turn. The accused also relies on the evidence of Mr Evans. The case for the accused is that the impact was in no way attributable to the accused being affected by intoxicating liquor because in effect the impact was unavoidable because of the very excessive speed at which Mr Casey was riding his motor cycle. The case for the Crown is that you would not find on balance that the impact occasioning the death was in no way attributable to the accused driving while under the influence of intoxicating liquor. The Crown reminds you of the words "in no way attributable". The Crown relies on the evidence of Constable Hayward as to his opinion that it was not a high speed impact. The Crown also relies on the evidence of Brian Henderson who said that the bike was not speeding. The Crown also relies on the evidence of Dr Perl. The Crown case is that the accused did not see the deceased because he was affected by the intoxicating liquor that he had consumed. Again, both counsel have addressed on the evidence on this aspect at some length. I seek only to remind you of the respective cases. There a couple of further matters on which I need to give you directions. The fact that Brett Casey was affected by the methylamphetamine in his system does not by that fact alone entitle you to find that the accident was in no way attributable to the fact that the accused was driving under the influence of intoxicating liquor. The relevance of the affectation of Brett Casey by that drug is that he was more likely to engage in risk taking behaviour. Further, there was no obligation on Brett Casey to take evasive action. Apart from the fact that at law there was no obligation on Brett Casey to take evasive action it would be mere speculation to determine the outcome of any evasive action that may or may not have been taken by Brett Casey. You must not speculate about anything that is not the subject of evidence. If, having considered the relevant evidence and submissions in relation to the matter, you are of the view that it is more probable than not, or more likely than not, that the death of Brett Casey occasioned by the impact was not in any way attributable to the fact that the accused was under the influence of intoxicating liquor then you must return a verdict of "not guilty". If, on the other hand, you are not so satisfied, then you should find the accused guilty of the offence charged, provided always, of course, (as I have indicated) that you are satisfied, beyond reasonable doubt, as to the matters which the Crown must prove." 1. Mr Carroll for the applicant puts at paragraphs [30] and [31] of his submissions: "For the purposes of the matters raised in this notice of motion, it is respectfully submitted that the test propounded by Spigelman CJ in Gilham which focusses attention on the elements of the new charge when compared with the issues in the first trial is the correct test to be applied in determining manifest inconsistency. With respect to determining the issues in the trial and pith and substance of the first matter the Court should look to the manner in which the parties conducted the trial, including as summarised in the summing up not simply the indictment…" 1. As I understand the submissions of counsel for the applicant the "pith and substance" of the issue in dispute at the trial by jury of the charge contrary to s 52A of the Crimes Act was the statutory defence and in particular the manner it was put to the jury in the summing up, namely, (drawn from the summing up as set out above) "As I understand the case for the accused is that the impact was unavoidable because of the speed at which the deceased was travelling. It is for you as the judges of the fact to determine whether or not Brett Casey was travelling at an excessive speed". 2. The issue that fell for determination by the jury at the trial was whether as the tribunal of fact they were satisfied on the balance of probabilities that the death of the late Mr Casey was in no way attributable to the fact that the applicant was driving under the influence of intoxicating liquor. The manner in which the issue was put to the jury in the summing up is that the impact was for the applicant unavoidable because of the excessive speed at which the late Mr Casey was travelling towards the applicant immediately before the impact. For reasons already enunciated it would have been entirely perverse for the jury not to have been satisfied beyond reasonable doubt that the applicant was driving under the influence of intoxicating liquor. 3. The Crown argues (written submissions MFI 1): "… that if the jury acquitted on the basis of the statutory defence that verdict involved a subjective consideration of whether on the balance of probabilities alcohol played a role in the collision. It did not involve a consideration of whether or not the driving on the part of the accused was negligent. The Crown case was not put on the basis that the accused (sic but read deceased) was not speeding. The Crown case was that even if the deceased was speeding as suggested by Mr Moorby the accused was in a position to see him and should have seen him. In particular the Crown put that if Mr Casey was speeding that did not absolve the accused of responsibility for turning in front of him. In cannot have been the case that the jury acquitted on the basis that the deceased was travelling so fast that the accused could not have seen him. The accused have evidence that he did in fact see him. Moreover the wholly uncontested evidence from the two civilian witnesses that they saw the motor bike approaching. On that basis if the jury acquitted on the basis of the statutory defence it can only have been because they were satisfied on the balance that the fact that the accused either did not see the motorbike at all or did not see it until it was too late was not due to the alcohol he had consumed". 1. The Crown is of course entirely correct in the submission that a consideration of whether on balance the statutory defence provided for by s 52A(8) of the Crimes Act is made out does not involve a consideration of whether the driving by the applicant was negligent. It was the Crown case at trial that even if the deceased was travelling at an excessive speed the applicant should have seen him. The effect of the jury's verdict is simply that they were satisfied on balance that the impact was unavoidable because of the excessive speed at which the deceased was travelling. 2. However, I return to the submission of Mr Carroll about the "pith and substance" noting that that is an expression that counsel draws from the judgment of the Chief Justice in Gilham v R as extracted earlier in these reasons. This is why the basis on which the matter went to the jury and the manner in which the respective cases were put in the summing up is important. 3. At the risk of repetition it would have made my task as the trial judge a little easier had trial counsel (noting that Mr Carroll did not appear at the trial) had been a little more forthcoming as to the precise nature of the defence case. I am left with being able to conclude that the defence case was indeed as I put in the summing up because of the lack of any objection or dissent by counsel for the applicant to the draft that had been provided. 4. In these circumstances it follows that that it simply must be the case that the jury found that the statutory defence was made out because of the excessive speed at which the deceased was travelling. 5. It follows that to allow the Crown to proceed on the charge of Negligent Driving (Occasioning Death) offends the principle of incontrovertibility. In these circumstances the applicant is entitled to a stay of proceedings in respect of that charge. If I am incorrect in determining that a stay of proceedings is the correct remedy I would dismiss the charge. 6. However, I add the following by way of comment. Although I do not resile from the decision I have reached in this matter, it is a decision that I have reached after a great deal of thought and contemplation and not without a good deal of reluctance. Having presided over the trial I am of the opinion that the applicant was indeed fortunate to have the benefit of the verdict that he has. It is essentially the "pith and substance" argument that has won the day for the applicant in the determination of this matter. 7. I order that the charge of Negligent Driving be permanently stayed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2020