R v Bailey [2001] NSWCCA 10

R v Bailey [2001] NSWCCA 10

The conviction appeal failed because, despite some deficiencies in directions and a failure to spell out the precise Crown particulars of dangerous driving, the evidence amply supported findings that Bailey was the driver and that he drove dangerously by overtaking a bus, failing to keep a proper lookout and failing to brake before striking the pedestrian; any defect in the summing up occasioned no lost reasonable opportunity of acquittal and the proviso was applied. The sentence appeal succeeded by majority because the sentencing judge erred in applying Jurisic without identifying relevant aggravating circumstances showing abandonment of responsibility and appeared mistaken about the...

Jurisdiction
Australia
Judgment Date
14 February 2001
Procedural Posture
Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Application for Leave to Appeal Out of Time Against Conviction and Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Appeal against conviction dismissed. Leave to appeal against sentence granted by majority, sentence quashed and applicant resentenced.
Legal Topics
['dangerous Driving Causing Death' 'summing Up to Jury' 'unreasonable Verdict' 'dangerous Driving Sentencing Guidelines' 'special Circumstances for Non Parole Period']
['criminal Law' 'sentencing'] ['dangerous Driving Causing Death' 'summing Up to Jury' 'unreasonable Verdict' 'dangerous Driving Sentencing Guidelines' 'special Circumstances for Non Parole Period']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Application for Leave to Appeal Out of Time Against Conviction and Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the trial judge erred by not directing the jury that prior inconsistent evidence could be used only to assess reliability and that the jury could act only on evidence given at trial.' 'Whether the trial judge adequately directed the jury on the elements of dangerous driving causing death, including contemporaneity between dangerous driving and the impact causing death.' 'Whether the verdict was unreasonable or could not be supported having regard to the evidence that the appellant was the driver and that the manner of driving was dangerous.' "Whether the trial judge's summing up should have specified the particular matters relied on by the Crown as constituting dangerous driving." 'Whether the sentence of a minimum term of 3 years with an additional term of 1 year was excessive or affected by error.']

Ratio Decidendi

The conviction appeal failed because, despite some deficiencies in directions and a failure to spell out the precise Crown particulars of dangerous driving, the evidence amply supported findings that Bailey was the driver and that he drove dangerously by overtaking a bus, failing to keep a proper lookout and failing to brake before striking the pedestrian; any defect in the summing up occasioned no lost reasonable opportunity of acquittal and the proviso was applied. The sentence appeal succeeded by majority because the sentencing judge erred in applying Jurisic without identifying relevant aggravating circumstances showing abandonment of responsibility and appeared mistaken about the...

Court Disposition

Appeal against conviction dismissed. Leave to appeal against sentence granted by majority, sentence quashed and applicant resentenced.

Orders

  • ['Application for leave to appeal against the conviction out of time allowed.' 'Appeal against conviction dismissed.' 'Leave to appeal against sentence granted.' 'Appeal against sentence allowed.' 'Sentence imposed by Acting Judge Downs quashed.' 'Applicant sentenced to imprisonment for 3 years dating from 18 August...