1 The applicant, who is now aged 24 and was 20 at the time of the alleged offences, pleaded not guilty in the County Court at Bendigo to one count of culpable driving (count 1) and one count of negligently causing serious injury (count 2). The maximum custodial penalties for those offences are 20 years' and five years' imprisonment respectively. She had no previous convictions or findings of guilt. After hearing a plea for leniency on her behalf, the learned trial judge sentenced the applicant on 16th February 2005 to four-and-a-half years' imprisonment on count 1 and 18 months' imprisonment on count 2. His Honour directed that six months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of five years' imprisonment. A non-parole period of two years and three months was fixed, a declaration regarding seven days' presentence detention was made and the applicant was disqualified from obtaining a driver licence for four years from the date of sentence.
2 The applicant seeks leave to appeal against both conviction and sentence. There are five grounds of appeal against conviction. The grounds of appeal against sentence are that the sentence on count 1, the total effective sentence and the non-parole period are manifestly excessive. In the view I take of this case, it is enough to deal with the first ground of appeal against conviction, namely that the verdicts are unsafe and unsatisfactory in the sense that no reasonable jury, properly instructed, could be satisfied beyond reasonable doubt of the applicant's guilt.
3 The essence of the case was as follows. On 13th April 2002 the applicant was driving a Holden Commodore sedan along the Murray Valley Highway near Patho. The vehicle was owned by her then partner, Alexander Reid, who was the front seat passenger. Ahead of her was a four-wheel drive Triton utility driven by Troy Douglas. A Mercedes sedan was also travelling in the same direction. It was driven by Alexander Riley, who was on his way to visit friends and intended to turn left into a gravel driveway.
4 Some distance before the driveway Mr Riley moved his vehicle partly on to the gravel and partly off the bitumen. He may have been as much as four-fifths off the road. He slowed down and put his left-hand indicator on. Mr Douglas, the driver of the Triton utility, indicated that he intended to overtake the Mercedes and did so. At that time he saw the Ford station wagon driven by the deceased, Donald Major, approach from the opposite direction, but he had sufficient time and distance safely to pass the Mercedes.
5 The applicant was behind the Triton utility and decided to pass the Mercedes too. She moved towards the centre broken line and part of her vehicle was across it, when she became aware of Mr Major's vehicle and applied her brakes. She lost control and skidded on to the wrong side of the road, where her vehicle collided with the Ford station wagon. As a result of that collision, Mr Major sustained injuries from which he died. Mr Reid suffered serious head injuries, including brain damage.
6 I shall refer to other facts later in these reasons and I append, as a schedule, an edited version of the Crown's summary of the evidence prepared for the hearing of the applications.
7 Mr Lacava submitted that, although the applicant stood mute, the evidence led at the trial was insufficient to establish the criminal negligence that was an element of both counts 1 and 2.[1] Although I was at first reluctant to accept that submission, I am persuaded that it is correct.
8 The accident occurred in broad daylight, on a straight stretch of road, with clear visibility. The evidence of an expert in accident reconstruction showed that the distance between the two vehicles, the applicant's and Mr Major's, was insufficient for her safely to move on to the wrong side of the road. She was not maintaining a proper lookout. If, as Mr Lacava submitted, there was room to pass between Mr Riley's vehicle and the centre broken line, there was no need to be on the wrong side of the road at all. The jury did not know, and we must therefore ignore, that the applicant had never committed a driving offence or even received a traffic infringement notice. Those points having been acknowledged, it must be remembered that the applicant's vehicle was only a little over the centre line when it began to skid. By that stage she was committed to passing the Mercedes. The applicant was travelling well within the speed limit. She was not driving whilst tired or under the influence of drugs or alcohol and her driving had not been erratic prior to the accident.
9 I am acutely conscious that one man died, and another was seriously injured, as a result of the collision. The gross negligence required by s.318(2)(b) of the Crimes Act 1958 (culpable driving), which is also applicable to s.24 (negligently causing serious injury), imports a community standard. There should be a new trial unless this Court is satisfied that no reasonable jury, properly directed and attending to the evidence, could be satisfied of the applicant's guilt. In my opinion, a jury would have little difficulty in being satisfied that she was negligent, but they could not be satisfied, beyond reasonable doubt, that there was "such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, and which involved such a high risk that death or serious injury would follow, that the driving ... merited criminal punishment".[2]
10 For these reasons I would grant the application for leave to appeal against conviction, allow the appeal, quash the convictions and the sentences passed thereon and direct that a judgment and verdict of acquittal be entered on each count.