Kelly v R [2024] NSWCCA 101

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kelly v R [2024] NSWCCA 101 Hearing dates: 8 May 2024; 3 June 2024 Date of orders: 17 June 2024 Decision date: 17 June 2024 Before: Bell CJ Hamill J Yehia J Decision: (1) Dismiss the appeal. (2) Confirm the orders of the District Court. Catchwords: CRIMINAL APPEALS – District Court convicting of summary or back up offence after trial – appeal under ss 5AD and 5AA Criminal Appeal Act – appeal in strict sense – where error of law must be established – amended grounds of appeal – where appellant convicted of negligent driving occasioning death – appellant a police officer involved in pursuit of motorbike – whether judge erred in failing to determine whether she took into account course of driving – where judge referred to earlier driving but found negligence at the time of the collision – no substance to ground of appeal – whether judge erred in finding negligence where there was no evidence that appellant failed to keep a safe distance – ample evidence to justify finding – whether primary judge took into account an irrelevant consideration – police safe driving policy – appellant's knowledge of driving in breach of part of policy and pursuit guidelines – whether judge did not refer to other breaches of the policy – whether judge failed to provide adequate reasons – judgment brief but provided amply adequate reasons Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 8(1) Criminal Appeal Act 1912 (NSW), ss 5AA, 5AA(4), 5AA(7), 5AD, 5AD(1), 5AD(3) Criminal Procedure Act 1986 (NSW), ss 165-168 Road Rules 2014 (NSW), regs 287, 305 Road Transport Act 2013 (NSW), ss 117, 117(3) Cases Cited: Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; (2008) 188 A Crim R 82 Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288 GS v R; Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618; [2022] NSWCCA 65 HD Projects Pty Ltd v SafeWork NSW [2022] NSWCCA 212 Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 Parker v R [2023] NSWCCA 234 Poletti Corporation Pty Ltd v SafeWork NSW [2020] NSWCCA 243 Prineas v R [2018] NSWCCA 221 The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 Category: Principal judgment Parties: Matthew James Kelly (Appellant) Rex (Respondent) Representation: Counsel: J Glissan KC and D Nagle (Appellant) S Lind (Respondent)