Court of Appeal

R v Clark [2014] QCA 099 (13/0250) Holmes, Fraser and Gotterson JJA 6 May 2014

Full-text: QCA14-099.pdf

Catchwords

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant had been driving on a wet road – where the appellant had been doing “donuts” – where the appellant lost control of the vehicle and collided with an oncoming vehicle – where the appellant’s passenger and the other driver sustained serious injuries – where the appellant was convicted of dangerously operating a vehicle with a circumstance of aggravation and sentenced to two years imprisonment – where forensic evidence did not preclude the possibility that directly before the collision the vehicle aquaplaned out of the appellant’s control – where the appellant contended that a defence under s 23(1)(a) Code was engaged – whether the jury was directed with respect to this defence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the jury indicated that they could not agree – where the trial judge provided a “shorter version of the Black direction” – whether the direction departed from the model direction formulated in Black

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where there was evidence indicating possible hypotheses other than the prosecutor’s case – whether upon the whole of the evidence the jury could be satisfied beyond reasonable doubt

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWER OF COURT ON APPEAL – whether the discretion to order a new trial ought to be exercised

Summary Notes

Appeal against Conviction – where the appellant had been doing “donuts” – where the appellant lost control of the vehicle and collided with an oncoming vehicle – where the appellant’s passenger and the other driver sustained serious injuries – where the appellant was convicted of dangerously operating a vehicle with a circumstance of aggravation and sentenced to two years imprisonment – where forensic evidence did not preclude the possibility that directly before the collision the vehicle aquaplaned out of the appellant’s control – where the appellant contended that a defence under s 23(1)(a) Code was engaged – where the learned trial judge began summing up for the jury late on the second day of the trial – where defence counsel proposed directions which included a direction with respect to a defence based on s 23(1)(a) – where his Honour thought that it had “the potential … to further confuse the jury” – where defence counsel did not persist with a request for a direction based on s 23(1)(a) – where in speaking of proof by the prosecution of driving on to the wrong side of the road as a “willed act” on the appellant’s part, the direction used the language of paragraph (a) in s 23(1) – where it implied that the prosecution case was that driving on to the wrong side of the road was the act which constituted the dangerous operation by the appellant of his vehicle – where the prosecution case was based upon a dangerous operation of the vehicle before it hit the guardrail and then veered to the wrong side of the road – where the appellant’s defence, which his counsel submitted was open to the jury so to find on the evidence, was that the direction of travel of the vehicle over that very short period of time and its hitting the guardrail were attributable to the wheel or wheels on its left-hand side having come into contact with pooled water on the road surface, as a result of which, beyond the appellant’s control, it aquaplaned, veering to the left and hitting the guardrail – where the act to which that defence might have applied was not identified as such in the course of the summing up; nor was the language of s 23(1)(a) used to illustrate its relevance to the defence – where these omissions were compounded by the inappropriateness of the s 23(1)(a)-based direction which was given – whether the jury was directed with respect to this defence – where the appeal must be allowed – whether there is to be a retrial or not ought to remain a matter for exercise of the discretion reposed in the Director of Public Prosecutions. Appeal allowed. Set aside the conviction under appeal. Order that there be a new trial on the count on which he was convicted.