UPDATE, 3.30pm: A Ballarat bus driver jailed for injuring six people when he crashed into a notorious Melbourne bridge could walk free from jail.
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Jack Aston's six convictions for negligently causing serious injury were overturned by the Court of Appeal on Monday, when it was determined prosecutors made a mistake by not raising with the judge a less serious alternative charge of dangerous driving.
Instead the court convicted Aston of six counts of dangerous driving causing serious injury.
The maximum penalty is double that of the less serious charge, so he will be re-sentenced.
His lawyer Catherine Boston asked that Aston's prison sentence be replaced with a community corrections order, focusing on the mental health conditions he has developed since crashing into the Montague Street Bridge at South Melbourne in February 2016.
Justice Phillip Priest said Aston was to be assessed for the order but would remain behind bars until he is re-sentenced in "a reasonably short time".
Aston was jailed for five years and three months, with a non-parole period of two-and-a-half years in December.
Six of Aston's 14 passengers suffered a range of injuries including spinal fractures, glass particles in the face, scalp injuries and a broken neck.
On Monday, Ms Boston said the maximum penalty of the dangerous driving charge was half that of the negligence charge and the law required it to have been be considered as an alternative.
Ms Boston said she wasn't suggesting there had been a deliberate failure by anybody in the trial, but that without the lesser charge being raised by prosecutors, they had failed to meet their legal obligations.
Justice Phillip Priest was critical of the failure.
"This is basic trial practice," he said.
"I'd expect a prosecutor to know, defence to know and, with all respect, the judge should have known."
Crown prosecutor Fran Dalziel QC had initially asked that Aston face a retrial.
But she withdrew that claim on Monday, accepting the prosecutor had contributed to the error.
She said it remained possible Aston would again be convicted of the negligence offence, but it would not be in the interest of justice to pursue a new trial.
UPDATE, 2pm: A Ballarat bus driver jailed for injuring six people when he crashed into a notorious Melbourne bridge has won an appeal, but won't walk free straight away.
Jack Aston's six convictions for negligently causing serious injury were overturned by the Court of Appeal on Monday, when it was determined prosecutors made a mistake by not raising with the judge a less serious alternative charge of dangerous driving.
The court has the option of convicting Aston on the lesser charge and imposing a reduced sentence.
Further arguments are expected on Monday from prosecutor Fran Dalziel QC, who is pushing for a retrial.
Ashton was jailed for five years and three months, with a non-parole period of two-and-a-half years, after crashing into the Montague Street Bridge in South Melbourne in February 2016.
Six of Aston's 14 passengers suffered a range of injuries including spinal fractures, glass particles in the face, scalp injuries and a broken neck.
On Monday, Aston's lawyer, Catherine Boston, said the maximum penalty of the dangerous driving charge was half that of the negligence charge and the law required it to have been be considered as an alternative.
Ms Boston said she wasn't suggesting there had been a deliberate failure by anybody in the trial, but that without the lesser charge being raised by prosecutors, they had failed to meet their legal obligations.
Justice Phillip Priest was critical of the failure.
"This is basic trial practice," he said.
"I'd expect a prosecutor to know, defence to know and, with all respect, the judge should have known."
However, Ms Dalziel said the judges had to accept that the prosecutor didn't know there it was an alternative charge required under law.
The judges criticised as "unfair" her assumption that defence lawyers must have known it was an alternative and chose not to raise it because they wanted to run an "all or nothing" case.
She has asked the court to order Aston be retried.
Justice David Beach called the push "curious in the extreme" when the Crown's purpose would be maintained with convictions for dangerous driving being imposed.
He pointed out that murder cases were "routinely" settled as manslaughter.
Ms Dalziel said the prosecution had successfully run it's negligence case and to resolve this matter on a lesser basis would undermine that jury's verdict.
The court will hear more arguments later on Monday.
EARLIER: A Ballarat bus driver jailed after injuring six people when he crashed into a notorious Melbourne bridge made a mistake, his lawyer says.
Jack Aston's error had serious ramifications for his passengers, himself and his family, but it doesn't make him a criminal and he doesn't deserve to be in jail, Catherine Boston told the Court of Appeal on Monday.
She said Aston hadn't used drugs, wasn't drunk or speeding or using a phone, was properly licensed and well rested when the crash occurred in February 2016, and said neither she or prosecutors could find any case like it.
Aston is appealing both his conviction and the sentence imposed last year after a jury found him guilty on six counts of negligently causing serious injury.
He was jailed for five years and three months, and will be eligible for parole after two-and-a-half-years.
Prosecutors have argued if Aston's convictions are overturned he should face a retrial on charges of the lesser offence of dangerous driving causing serious injury.
Six of Aston's 14 passengers suffered a range of injuries including spinal fractures, glass particles in the face, scalp injuries and a broken neck.
The appeal continues.
-AAP