R V Miletic [2006] NSWDC 114

New South Wales District Court

CITATION: R V Miletic [2006] NSWDC 114

HEARING DATE(S): 07/04/06,29/05/06,28/07/06,20/09/06

JUDGMENT DATE: 2 November 2006

JUDGMENT OF: Williams DCJ at 1

DECISION: Offence proved; Convicted; Section 9 Bond

CATCHWORDS: Negligent Driving Causing Death - Back up Charge to DMD causing death - Acquitted of principal charge - Interests of justice - Same facts and allegation of negligence - Driver falling asleep - Distinction between DMD and Negligent driving

LEGISLATION CITED: Criminal Procedure Act 1986 s166, s167(1A), s169(1) Road Transport (Safety & Traffic Management) Act 1999 s42

Dennis v Watt 60 WN 7 CASES CITED: R v Kroon (1990) 52 A Crim R 15 Jiminez v R (1992) 173 CLR 572 McBride v The Queen (1966-67) 40 ALJR 57

PARTIES: Regina Mario Miletic

FILE NUMBER(S): 05/41/0111

COUNSEL: Crown: Mr R Willis Defence: Mr J Pappas

SOLICITORS: DPP Wollongong Ms Foliaki-Singh

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1 Preliminary issue 2 Mr Miletic was tried before me and a jury in Queanbeyan on 20th February 2006 on a charge of Drive in a Manner Dangerous causing death, the allegation being that he went to sleep at the wheel. He was acquitted but there was a back up charge of "negligent driving causing death". This charge is now before me by virtue of s166 of the Criminal Procedure Act. 3 Mr Pappas, who appears for Mr Miletic and appeared for him at the trial, has raised a preliminary issue in that I should not deal with the related/ or back up offence because "it would not be in the interests of justice" to do so. 4 S167(1A) permits me to deal with a related offence unless to do so would not be in the interests of Justice. S169(1) provides that I can remit a related matter to the Local Court if it is in the interests of justice to do so. More importantly the section also provides that if I do not deal with the related offence, then the offence must be remitted to the Local Court to be dealt with. 5 What seems to be clear from these two sections is that if for any reason, including a reason involving the interests of justice, I decline to deal with this related offence, then the offence must be remitted to the Local Court to be dealt with. 6 As a matter of practicality, it would not be appropriate to remit the matter to the Local Court because I have heard all the evidence and am familiar with the case. 7 Mr Pappas argues that, for a number of reasons, I would find that it is not in the interests of Justice to deal with the offence. They are that 1. There is some evidence to suggest that the victim's family don't wish to pursue the matter any further, 2. The matter was unable to proceed on 28th July 2006 when it was listed for hearing before me in Sydney because the Crown Prosecutor was not available and Mr Miletic has been put to additional and unrecoverable costs, and 3. Matters raised in a letter from Mr Miletic's solicitor dated 20-04-2006, which was in the nature of a no bill application, setting out a variety of reasons why the matter should not proceed.