Dangerous delays

Applicants for special leave to appeal to the High Court are well familiar with three standard bases on which special leave is refused:

1. The case does not raise any issue of sufficient importance
2. The case does not have sufficient prospects of success
3. The case is not a suitable vehicle for raising the issue in question

So far, one striking feature of the French High Court has been its increasingly aggressive position on the issue of court delays. As a result, we may start to see the emergence of a fourth basis:

• The delays in the case have been too great to justify further extending proceedings

The case of Guthridge concerns the appropriate jury directions when a person is charged with dangerous driving causing death under s319 of the Crimes Act. The case started in the County Court and ended with an unsuccessful Crown application for leave to appeal to the High Court.

Crown application for leave
In Guthridge, the Court of Appeal held that the trial judge erred in his directions to the jury on the meaning of 'dangerous driving' for the purpose of s319 and the comparison between dangerous driving causing death and culpable driving causing death. The leading decision on s319 is R v De Montero (an unsuccessful offender appeal), where the Court of Appeal laid down five matters a trial judge must direct the jury about to correctly explain the meaning of dangerous driving. These are:

1. That the accused was driving in a manner that involved a serious breach of the proper management or control of his vehicle on the roadway such as to merit criminal punishment. It must involve conduct more blameworthy than a mere lack of reasonable care that could render a driver liable to damages in civil law.
2. That the breach must be so serious as to be in reality, and not just speculatively, potentially dangerous to others who, as members of the public, may at the time be upon or in the vicinity of the roadway.
3. That the manner of driving created a considerable risk of serious injury or death to members of the public.
4. That the risk so created significantly exceeded that which is ordinarily associated with being on or near a highway.
5. That in determining whether the manner of driving was ‘dangerous’ the test is an objective one. Would a reasonable driver in the circumstances of the accused have realised that the manner of driving involved a breach of the kind discussed in paragraphs 1 and 2, and also gave rise to the risk identified in paragraphs 3 and 4

The appeal in Guthridge was heard three days before the publication of reasons in De Montero and the court held that the trial judge's failure to comply with the substance of the De Montero points meant that the jury were not properly instructed on the elements of the offence. The Crown sought to appeal to the High Court to challenge the De Montero requirements, contending that they placed too high a threshold on the meaning of 'dangerous'.

High Court refuses leave
The High Court rejected the Crown application, with French CJ saying:

The Crown applies for special leave to appeal on the basis that the Court of Appeal relied upon erroneous criteria for setting aside a conviction for dangerous driving causing death contrary to section 319 of the Crimes Act (Vic). The criteria were those set out in the court’s decision in R v De Montero which were said to have set an erroneously high threshold of criminal liability. We do not express any concluded view on that contention.

Whatever the merits of the Crown’s contentions, in our opinion they are outweighed in this case by the delays in the process which have led to the entry by the Court of Appeal of an acquittal in favour of the respondent. The offence was said to have been committed in December 2005. The respondent’s trial concluded on 24 April 2008. He was sentenced on 19 June 2008 and filed a notice for leave to appeal on 26 June 2008. His appeal was not heard until 26 October 2009. Orders allowing his appeal were made on 25 March 2010 and reasons for those orders published by the Court of Appeal on 9 June 2010.

The record does not disclose any explanation for what must be, on any view, unacceptable delays in terms of the time taken to bring the appeal to hearing and thereafter to disposition and publication of reasons. There is no suggestion that the respondent was responsible in any way for these delays. The Director of Public Prosecutions has indicated that should he be granted special leave and his appeal be successful, he would not seek the return of the respondent to custody and would consent to the Court of Appeal resentencing him to an appropriate sentence to achieve that outcome.

Notwithstanding that offer, we are of the view that the delays are such that it would not be in the interests of justice to grant special leave to appeal to the Crown in this case. Special leave will be refused with costs.

The effect of the timeline set out by French CJ is that we have:

• 2 years, 5 months between alleged offending and trial
• 2 months between conviction and sentence
• 1 year, 4 months between sentencing and hearing of appeal
• 5 months between hearing of appeal and publication of orders
• 2 and a half months between publication of orders and publication of reasons
• 6 months between publication of judgment and hearing of special leave application

To those familiar with Victoria's criminal justice system, I suspect that these numbers are unsurprising. In fact, both counsel during the leave hearing stated that this case took it's ordinary progress through the court system. Despite the High Court's statement in R v Nguyen that 18 months between sentence and appeal is too long, the current backlog in trial courts and the Court of Appeal seem to make such delays inevitable and without any clear evidence that the fault lies with a lack of OPP and VLA lawyers, I doubt that the government's power to move 50 policy officers from the Department of Justice to those agencies will significantly reduce existing court delays.

The most striking aspect of French CJ's refusal of leave is that he pointedly says that he expresses no opinion on whether the De Montero requirements are right. In one sense, this refusal of leave is a particular manifestation of the 'unsuitable vehicle' basis of refusal,. The problem is that you would be hard pressed to find a better vehicle for raising this issue (Bell J's concerns that the trial judge may have unacceptably diluted the standard for dangerousness regardless of whether De Montero is right notwithstanding). The Crown certainly could not have appealed De Montero to seek to lower the threshold, as the Crown won that appeal. It was only on the reasons that the Crown lost out. Trial judges now will charge in conformity to De Montero, and it becomes very difficult to envisage a path by which the issue could reach the High Court:

• If the accused is acquitted completely due to the high standard imposed by De Montero, then the Crown may refer a question of law. However, this will only be useful if the Court of Appeal reconsiders its own decision or if the High Court grants special leave following the failure in the Court of Appeal. This would most closely replicate the end result of Guthridge, though it will only help if the matter gets through the court system fast enough to avoid the High Court's excessive delay filter, and the High Court does not reject special leave on the basis that the acquitted offender has no interest in the proceeding and therefore there is no suitable contradictor, or because the question is hypothetical.
• The Crown could seek an interlocutory appeal on the correct directions for a charge under s319. The problem is that the Court of Appeal would probably refuse leave to appeal, on the basis that the question has been recently answered. The Crown would then need to seek special leave to continue the fragmentation of a criminal proceeding, despite the likely refusal of leave to appeal by the intermediate appellate court. I cannot find any examples of the High Court granting special leave following an interlocutory Crown appeal, but there could be a first for everything.
• The DPP might encourage Parliament to legislate to override De Montero. Then, we would end up with statutory language which might or might not be comprehensible to a jury. It also would detract from the generality and value judgment by the jury that a term like 'dangerous' is designed to provide.

So, while the De Montero requirements are under something of a cloud, it seems unlikely that there were be any effective challenge to that decision for some time. In the mean time, the DPP will need to look at ways to ensure cases are expedited through the court system if hopes to bring appeals to the High Court.