Ankur v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0040

ANKUR ANKUR	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 April 2021
DATE OF JUDGMENT:	4 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 110
JUDGMENT APPEALED FROM:	DPP v Ankur (Unreported, County Court of Victoria, Judge Mullaly, 17 December 2019)

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CRIMINAL LAW – Appeal – Conviction – Dangerous driving causing death – Applicant’s vehicle driven at excessive speed in traffic in hazardous conditions – Applicant’s explanation that before the accident he had engaged cruise control and it had stuck – Whether judge’s direction to jury that applicant’s expert evidence fell away upon rejection of applicant’s explanation impermissibly reversed onus of proof – Whether judge’s direction to jury equated applicant’s explanation to fanciful possibility – Whether miscarriage of justice – Appeal allowed – Retrial ordered – Criminal Procedure Act 2009 s 276 – McKell v The Queen (2019) 246 CLR 307, Mathieson v The Queen [2021] VSCA 102 applied.

CRIMINAL LAW – Appeal – Sentence – Applicant sentenced to 5 years and 3 months’ imprisonment with non-parole period of 3 years and 6 months – Whether judge erred in approach to applicant’s psychological state as mitigating factor – Whether sentence manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC	Criminal Lawyers Geelong
For the Respondent	Mr C B Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA
T FORREST JA:

The applicant was convicted, by the jury empanelled on his trial, of one charge of dangerous driving causing death contrary to s 319(1A) of the Crimes Act 1958. After a plea presented on his behalf, he was sentenced to 5 years and 3 months’ imprisonment, with a non-parole period of 3 years and 6 months. He seeks leave to appeal against his conviction and against his sentence.

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

The applicant seeks leave to appeal against his conviction on two grounds, namely:

Ground 1:The Learned Trial Judge erred in directing the jury that unless they accepted that the Applicant had turned on the cruise control system then the opinion of Andrew Enkelman completely fell away.
Ground 2:A substantial miscarriage of justice has occurred in circumstances where the jury may have interpreted the Learned Trial Judge as equating Andrew Enkelman’s position as to the cause of the accident with what his (the Learned Trial Judge’s) position would be if someone was to ask him had someone stolen his and his neighbours’ garbage from their garbage bins.

Circumstances

The charge, on which the applicant was convicted, arose from a collision that occurred shortly after 3:00 pm on 1 August 2016 between a Holden Commodore Calais motor vehicle driven by the applicant and another vehicle driven by Patrick Deagan on Breakwater Road, Belmont. As a result of injuries sustained in the collision Mr Deagan subsequently passed away.

Earlier on that day, the applicant had driven his vehicle to the home of his friend Harkhamal Sekhon in Breakwater Road. Having picked up Mr Sekhon, the applicant then drove to another house in Belmont where he picked up his friends, Balvinder Singh and Jasvir Singh. The applicant then commenced to drive his vehicle back to Mr Sekhon’s premises where he and the other passengers intended to celebrate Mr Sekhon’s birthday.

The weather on 1 August 2016 was difficult for motorists. At the time of the accident, it was raining heavily and the roads were wet and slippery. Other motorists who gave evidence described the driving conditions as quite hazardous.

On the return trip to Mr Sekhon’s house, the applicant turned left from Barwon Heads Road into a slip lane in order to turn into Breakwater Road. He brought his vehicle to a stop so as to allow other vehicles, which were turning right from Barwon Heads Road into Breakwater Road, to proceed in front of him. The applicant then pressed the accelerator on his vehicle hard and accelerated at such a speed that the rear wheels on his vehicle lost traction and the vehicle fishtailed along Breakwater Road. The applicant’s vehicle continued to accelerate in the left-hand lane. It diverged into the right-hand lane in order to pass a vehicle that was in the left lane. In doing so, the vehicle rapidly approached the rear of another vehicle driven by the witness Andrew Cherry, which was travelling in the same direction in the right-hand lane. The applicant’s vehicle veered back into the left-hand lane at high speed and passed Mr Cherry’s vehicle on the left.

Although the traffic was heavy at that point, the applicant’s vehicle continued to accelerate. At a slight left-hand curve in Breakwater Road, the applicant lost control of the vehicle. As a result, it veered left into the guard rail, and then rebounded off the rail at such a speed that it became airborne. The applicant’s vehicle then careered to the right, crossed into the path of oncoming traffic, and collided with a small Hyundai vehicle which was driving in the opposite direction.

The driver of that vehicle, Patrick Deagan, had no opportunity to avoid the collision. As a result of the impact, Mr Deagan, who was 85 years of age, suffered multiple fractures and internal injuries. He was conveyed by ambulance to the Geelong Hospital. On the following day, due to the severity of his injuries, he was transferred to the Alfred Hospital. Mr Deagan’s condition deteriorated in the following days, and he died on 14 August 2016 as a result of his injuries.

Summary of evidence

At the trial, the applicant did not take issue with the evidence given by witnesses as to the high speed and movements of his vehicle in the lead up to the accident. The only issue was whether the vehicle behaved in that manner because, as claimed by the applicant, the cruise control mechanism on the vehicle had become stuck, so that he was unable to disengage it as the vehicle proceeded along Breakwater Road to the point of the accident.

Leading Senior Constable Nigel Morrison attended the scene shortly after the collision. After speaking to other witnesses, he questioned the applicant as to how the collision occurred. The applicant told Senior Constable Morrison that he had problems with cruise control, and when the vehicle started to accelerate, he was unable to stop it. He said that he had turned the cruise control on when the vehicle reached 60 kilometres per hour, but the vehicle had kept accelerating, so that he had to pass other vehicles in front of him, because he could not stop his vehicle. The applicant told Senior Constable Morrison that he had applied the brakes, but the vehicle did not slow down until he really ‘jammed them on hard’, when he then lost control of the vehicle and hit the guard rail.

At the trial, the recorded evidence of three witnesses, Andrew Cherry, Donna Braden and Michael Lewis, was played to the jury. Shortly before the accident, Mr Cherry had executed a right-hand turn from Barwon Heads Road into Breakwater Road. As his vehicle approached the bridge over the Barwon River, the applicant’s vehicle came behind him, shot between two vehicles, and then passed Mr Cherry’s vehicle on his left. At the time, Mr Cherry’s vehicle was travelling at 60 kilometres per hour. After overtaking Mr Cherry’s vehicle, the applicant’s vehicle lost control, the tail of the vehicle ‘slipped out,’ and the vehicle careered into the safety barrier on the left. The vehicle then spun and hit an oncoming vehicle. Mr Cherry said that he did not observe any brake lights activated on the applicant’s vehicle, that it did not appear to slow down at all, and that it had accelerated further after it had passed his vehicle.

At about 3:00 pm on the day of the accident, Donna Braden also executed a right-hand turn from Barwon Heads Road into Breakwater Road. She observed the applicant’s vehicle slow down, but she did not see it stop, before it entered Breakwater Road. Once the applicant’s vehicle came off the slip lane, it accelerated. Ms Braden could hear the engine of the vehicle ‘really loud’ over the rain. She said that the applicant’s vehicle ‘sped off very quickly’ as it came out of the slip lane. The vehicle fishtailed for a short time, but then continued to accelerate. It went into the right-hand lane to overtake a vehicle that was in front of it, and then moved into the left-hand lane to overtake two vehicles travelling in the right-hand lane. Ms Braden said that the vehicle was going in and out of traffic, and that she did not see it slow down at any point. She estimated that it was travelling at approximately 80 kilometres per hour. Ms Braden did not observe the actual collision, but she heard the noise of it as she came around the bend.

Shortly before the collision, Michael Lewis was driving his vehicle in the opposite direction along Breakwater Road. He said that the weather was ‘horrible’. He observed the applicant’s vehicle coming towards him. It then swerved in front of an oncoming vehicle, hit the guard rail, jumped in the air and went across and collided with Mr Deagan’s vehicle.

Each of the passengers in the applicant’s vehicle also gave evidence. Mr Sekhon was in the front passenger seat. He said that in the lead up to the accident, he was searching his mobile telephone for music and that he was not paying much attention. He said that the speed of the applicant’s vehicle felt normal. As the vehicle approached Breakwater Bridge, he heard the applicant shout words like ‘fucking cruise, fucking cruise’. When cross-examined by the prosecutor, pursuant to s 38 of the Evidence Act 2008, Mr Sekhon denied that the applicant’s vehicle was weaving through traffic as it proceeded along Breakwater Road, and he said it was not fishtailing.

Balvinder Singh was in the left-hand rear passenger seat of the Commodore. He said that as the vehicle proceeded on Breakwater Road, it continued to accelerate as it approached Breakwater Bridge. The vehicle first went into the left hand lane, and then into the right-hand lane, and then back into the left-hand lane in order to avoid other vehicles. During that time, its speed was increasing. The applicant yelled that the cruise control was not working. Mr Singh asked him to slow down the vehicle and the applicant said ‘I can’t brake’. When cross-examined by the prosecutor pursuant to s 38 of the Evidence Act, Mr Singh agreed that, in the statement that he made to the police, he did not say anything about the applicant saying that the brakes were not working on the vehicle.

Jasvir Singh was in the rear passenger seat of the vehicle. He said that at the time of the accident, he was on his mobile telephone checking his emails and looking at Facebook. He said that he heard a conversation about cruise control, and when he looked up, the accident happened. He said that the applicant’s vehicle was probably not travelling in excess of 60 kilometres per hour, and the applicant was driving in a normal manner.

A tape-recorded interview was conducted by police with the applicant on 8 September 2016. The applicant said that before the accident, he had turned his cruise control on when the vehicle reached 60 kilometres per hour. He said that as soon as he turned it on, he realised that his vehicle’s speed was ‘picking up’ instead of remaining steady. As a consequence, he had to swerve in and out of lanes to avoid vehicles that were in front of him. He tried to push the button on the mechanism to deactivate cruise control, but it did not work. He also tried to press the foot brake in order to turn any mechanism off, but that was also unsuccessful. He attempted to disengage it by pressing on the brakes slightly twice, and he then had to ‘slam it’ on the third occasion, because he was getting closer to another vehicle. When he did so, his vehicle spun and hit the guard rail. The applicant told police that he had engaged the cruise control as a matter of habit. He said that he turned it on ‘all the time’, and that he had engaged the cruise control, although he knew that in a couple of hundred metres he would need to slow down and turn it off. He said that he engaged the cruise control because his fingers ‘do it all the time’.

The prosecution called two expert witnesses concerning the claim by the applicant that the cruise control mechanism on his vehicle had become stuck before the accident.

Senior Constable Nicholas Brickley is a qualified motor mechanic. At the time of the accident, he was in the Mechanical Investigation Unit of Victoria Police, which is a police unit that inspects vehicles which have been involved in collisions of a certain nature.

Senior Constable Brickley explained that the cruise control feature on the applicant’s vehicle consisted of a button and a toggle which turned the system on and off. He said that the cruise control may be switched off either by pressing the cancel button, or by touching the brake pedal, which would disarm the cruise control. Once the cruise control is deactivated in that way, it is on a ‘standby mode’, so that it can be reactivated by using the toggle again.

Senior Constable Brickley said that the applicant’s vehicle also had a traction control system which was designed to prevent unnecessary wheel spin. In effect, the traction control detects a loss of traction, and reacts by closing the throttle of the vehicle so as to prevent wheel spin. The traction control system can be turned off manually. Senior Constable Brickley stated that he had been unable to examine the cruise control system of the vehicle, because of the extent of the damage that had been caused to its electrical system as a result of the collision.

Steven Curtis is the manager of Product Investigation at General Motors Holden. Mr Curtis gave evidence that after he was consulted by the prosecution in this case, he researched and downloaded a number of materials relating to the cruise control for the VY Commodore, looking for issues which might be associated with a failure of that mechanism. He said that apart from the present case, General Motors Holden had not received any similar complaint about the cruise control mechanism on the model of the vehicle in question. There had been other problems with the cruise control, but they were quite different to the problem, described by the applicant, that the vehicle had accelerated uncontrollably.

Mr Curtis explained that there are a number of ways by which a driver of such a vehicle might disengage the cruise control module. First, it can be disengaged by pressing the button at the end of the indicator stalk, or by depressing the brake pedal. In either such case, the cruise control would disengage. When the brake pedal is pressed, the brake lights are also activated. Mr Curtis also explained that if a vehicle is accelerated to the extent that the traction control mechanism is activated, that will have the same effect of disengaging the cruise control. When the vehicle is in low traction, so that the wheels are spinning, a signal is transmitted from the traction control module through the brake pedal switch and into the cruise control module, thus disengaging the cruise control. Mr Curtis explained that if there is an electrical issue with the cruise control of the vehicle, the module would disengage the cruise control. He further said that he could not conceive of any circumstance which would cause uncontrolled acceleration of a vehicle together with a lack of response to an application of the vehicle’s brakes.

In cross-examination, Mr Curtis stated that if there were an intermittent fault with the cruise control module, the cruise control itself would not work, that it would disengage. He had never known of a case of an intermittent fault with the cruise control module operating in a manner that the cruise control module remained activated.

Counsel for the applicant called Andrew Enkelman, a mechanical consultant engineer, to give evidence in relation to the functioning of the cruise control mechanism on the applicant’s vehicle. In preparation for the trial, Mr Enkelman had access to materials relied on by Senior Constable Brickley.

Mr Enkelman expressed the view that Senior Constable Brickley had not investigated the cruise control mechanism on the vehicle. Rather, he had investigated the cable that connected the cruise control to the throttle relaxer. The cruise control module itself could not be tested. In order that it might be tested, it would need to be removed from the vehicle, and tested electronically to determine whether a fault in it had occurred. Mr Enkelman said that the fact, that the cables to the cruise control mechanism had been tested and found to operate correctly, meant that that aspect of the cruise control was excluded as a possible problem. He said that there were other possible issues which could have compromised the functioning of the cruise control module and thus caused uncontrollable acceleration of the vehicle. The first such problem could have arisen from a jammed stepper motor which is a small permanent magnet motor within the module. He said that there might have been a fault in the circuit board which allowed the stepper motor to remain active and not permit it to return to zero. The stepper motor was fully enclosed within the cruise control module housing and could not be examined by Senior Constable Brickley.

Mr Enkelman said that the second possible explanation of the uncontrollable speed of the vehicle could be a mechanical issue affecting the stepper motor, the clutch, or the gear box within the cruise control module. In addition, there could have been an issue within the circuit board of the cruise control module.

Mr Enkelman considered that it was ‘rather strange’ for the brake of the vehicle to have been depressed without it having an effect on the cruise control. He said that if the vehicle is being slowed down with the driver ‘standing’ on the brake pedal continuously, the vehicle should eventually slow down to a halt, because the braking mechanism is designed to have a greater effect than the acceleration of the engine at maximum revolutions.

Mr Enkelman also explained that when there is a loss of traction, the traction control mechanism operates to cut power to the engine, which should disengage the cruise control. Mr Enkelman stated that as he had not been able to test the cruise control module of the applicant’s vehicle he could not state what possible fault might have caused the vehicle to continue to accelerate. However, he said that the probability was ‘high’ that the cruise control module of the vehicle was faulty, although he could not state what had actually caused it to fail.

Ground 1 — submissions

Ground 1 concerns a passage in the judge’s charge in which the judge directed the jury as to the principles to be applied in examining the evidence given by the expert witnesses in the case. Having outlined the salient principles relevant to the topic, the judge then stated:

You should also consider whether the witness appeared objective, whether they seemed biased, or overstated their evidence. You should examine the quality of the reasons offered for an opinion, and the facts that supported that opinion. A witness’ opinion is only valuable if the facts on which it is based are true. Mr Enkelman’s opinion as he accepted in his evidence, was based entirely on the acceptance of the evidence, that the cruise control was turned on. If that evidence is not accepted by you, if you do not accept that the cruise control was turned on, then his opinion that a possible explanation is a fault in the cruise control just simply falls away.
The cruise control and whether it failed and of its own motion, accelerated the car and would not turn off would not be a matter for consideration by you. The only explanation then would be that the accused himself accelerated the car to a speed that was dangerous. Mr Enkelman acknowledged and accepted that logic himself.[1]

[1]Emphasis added.

Counsel for the applicant submitted that, in that part of the charge, the judge erred in directing the jury that if it did not ‘accept’ the evidence of the applicant that he had turned on the cruise control before the accident, the opinion evidence given by Mr Enkelman simply fell away, so that the only explanation for the accident would be the dangerous driving of the applicant. It was not necessary for the jury to make a positive finding, that the cruise control had been turned on, before it could consider Mr Enkelman’s opinion. Rather, Mr Enkelman’s opinion only became irrelevant if the prosecution was able to exclude the reasonable possibility that the cruise control had been turned on by the applicant before the collision. Accordingly, if the jury was uncertain whether the cruise control had been turned on, it would have been obliged to consider Mr Enkelman’s opinion as to the possible cause of the accident, namely, a malfunction of that mechanism in the moments before the collision.

Counsel for the applicant acknowledged that, in other passages in the charge, the judge used different formulations in addressing the issue whether the applicant had turned on the cruise control. However, he submitted, while in some of those passages the judge correctly instructed the jury that the prosecution was required to exclude the reasonable possibility that the cruise control was pointed on, nevertheless in other passages the judge suggested that Mr Enkelman’s opinion was only relevant, if the jury positively accepted that the cruise control had been turned on. Accordingly, it was submitted, in the impugned passage in the charge, the judge incorrectly and impermissibly reversed the onus of proof on a central issue in the case, namely, whether the cruise control had been turned on by the applicant before the accident. It was submitted that, since the reliance on Mr Enkelman’s opinion was an important part of the defence case, the impugned direction by the judge has resulted in a substantial miscarriage of justice.

In response, counsel for the respondent submitted that, in a number of passages in his charge, the judge made it abundantly clear that if the jury considered that it was reasonably possible, that the applicant had engaged the cruise control on the vehicle, and that the device had malfunctioned in the manner described by the applicant, then the jury must return a verdict of not guilty. Counsel submitted that the judge was correct to draw to the jury’s attention the obvious point that if the applicant had not engaged the cruise control mechanism before the collision, then Mr Enkelman’s opinion became irrelevant. Counsel submitted that, in the context of the other passages in the charge, the jury could only have understood the judge’s use of phraseology, in the impugned passage, as referring to a situation in which the jury had excluded, as a reasonable possibility, that the applicant had engaged the cruise control mechanism.

Counsel for the respondent further noted that defence counsel did not take any exception to the impugned passage in the charge. He contended that it would have been ‘bizarre’ for the jury to have understood the passage, which is the subject of ground 1, as imposing on the applicant a legal onus to prove that he had in fact turned on the cruise control before the accident.

Ground 1 — analysis and conclusion

In a criminal trial, it is a fundamental duty of a trial judge to give to the jury clear and readily comprehensible directions as to the applicable burden and standard of proof. In most cases, that duty includes an obligation to relate the burden and standard of proof, applicable in a criminal trial, to the particular issues of the case.

In the trial, the speed and movements of the applicant’s vehicle as it approached the point of the collision, were not put in issue. The critical question in the case concerned the reason why the applicant’s vehicle proceeded at a speed and in a manner which was, in the circumstances, plainly dangerous. The evidence of the applicant and his passengers, and of Mr Enkelman, was directed to that issue. The case on behalf of the applicant was that the jury could not exclude the reasonable possibility that the vehicle proceeded in the manner and at the speed at which it did, because the applicant had turned on his cruise control function and it malfunctioned in the manner described by the applicant in his record of interview. In order to be able to convict the applicant, the jury therefore was required to be satisfied that the hypothesis, that the applicant had applied the cruise control and it malfunctioned, was not reasonably open on the evidence.

The principles, that apply to the drawing of conclusions by a jury in a criminal trial, in a case in which an accused relies on a hypothesis consistent with innocence, are well established.[2] They were conveniently summarised in the following passage in the judgment of this Court in Davies v The Queen:[3]

In order to convict an accused person, the jury must be satisfied that the inference of guilt is the only reasonable inference available on the proven facts of the case. If the jury is unable to exclude a reasonable explanation of the facts which is consistent with the innocence of the accused, then it must find the accused not guilty. Such a competing hypothesis must be open on and consistent with the evidence in the case. Such a competing hypothesis must be reasonably open, and not just fanciful.[4]

[2]See, eg, Barca v The Queen (1975) 133 CLR 82, 104–5; [1975] HCA 42 (Gibbs, Stephen and Mason JJ); Shepherd v The Queen (1990) 170 CLR 573, 578; [1990] HCA 56 (Dawson J); Knight v The Queen (1992) 175 CLR 495, 502, 504; [1992] HCA 56 (Mason CJ, Dawson and Toohey JJ); R v Baden-Clay (2016) 258 CLR 308, 328 [62]; [2016] HCA 35 (French CJ, Kiefel, Bell, Keane and Gordon JJ).

[3][2019] VSCA 66.

[4]Ibid [488] (Kaye, McLeish and T Forrest JJA) (citations omitted).

Standing alone, the impugned passage in the judge’s charge did not correctly conform with those principles. On its face, the passage was expressed in terms that, in order that Mr Enkelman’s opinion evidence be relevant, the jury must first ‘accept’ the evidence, relied on by the applicant, that the cruise control was turned on. Contrary to that direction, in order that Mr Enkelman’s opinion be relevant, it was sufficient that the jury could not exclude, as a reasonable possibility, that the applicant had turned on the cruise control mechanism some time before the accident.

There was an added difficulty in the impugned passage in the judge’s charge. The evidence of Mr Enkelman, if accepted by the jury, provided an explanation as to a number of means by which, after a cruise control has been turned on, it may malfunction in a manner which would preclude the driver of the vehicle from disengaging it. That evidence, if accepted by the jury, would have lent some weight to the evidence, given by the applicant and his passengers, that the applicant had in fact turned on the cruise control and that it malfunctioned. That is, the questions whether the cruise control was turned on and whether it malfunctioned were, in a sense, interrelated. The more probable the proposition that a cruise control is capable of malfunctioning in the manner described by Mr Enkelman, then the less improbable would have been the evidence given by the applicant and the passengers that the cruise control had been turned on and that the applicant had been unable to disengage it.

In order to understand how the jury might have understood that passage, it is necessary to place the passage in its proper context. In particular, it is necessary to consider it in the context of the general directions given by the judge to the jury concerning the burden of proof, and the specific directions given by the judge as to the manner in which that fundamental principle applied to the issues in the case.

At the commencement of the charge, the judge reminded the jury of the preliminary directions that he had given to it, concerning the presumption of innocence and the requirement that the prosecution must prove the case against the applicant beyond reasonable doubt. He noted that the fundamental question in the trial was whether the jury was satisfied, beyond reasonable doubt, that the applicant drove at a speed or in a manner that was dangerous to the public in all the circumstances. In that respect, the judge told the jury that it was not in issue that the applicant’s vehicle was travelling at a speed that was dangerous to the public in all the circumstances, and that the ‘key question’ in the trial was why the vehicle was going at such a speed.

His Honour then (correctly) directed the jury as to that issue in the following terms:

So thus, you have the refined question that I have set out there. Are you satisfied beyond reasonable doubt, could the reason why the car was going at a speed that was dangerous to the public, was the driving of Mr Ankur. His acceleration of the car and/or his failure to reduce its speed.
If you think that the accused’s explanation that he put on the cruise control is a reasonable and rational possibility, then you could only be satisfied beyond reasonable doubt, that the car was going at a speed dangerous to the public, because of his driving, if you have excluded as a possibility, as a reasonable and rationale possibility, that the speeding was due to the malfunctioning of the car’s cruise control.
So, you have to accept it is a reasonable and rational possibility that the cruise control was put on. Then it is further suggested the purported malfunctioning of the cruise control had a number of parts; they being that the malfunction of the cruise control was such that it did not hold the nominated speed. Rather, it operated to increase the speed without the accelerator being pressed, that the breaks did not deactivate the cruise control. Indeed Mr Ankur in his interview also said that he pushed the button again to de-activate. So, that has to have failed as well. And the use of the brakes did not immediately slow the car. So that is the range of the failures and you have to — the prosecution has to exclude that as a rational reasonable possibility.

Thus, at an early stage in his charge, the judge made it plain to the jury that the onus was on the prosecution to exclude, as a rational reasonable possibility, that the applicant had engaged the cruise control, and that the reason why the vehicle was travelling at a dangerous speed was because the applicant was unable to deactivate the cruise control. The judge instructed the jury that if it had a reasonable doubt as to that matter, it must find the applicant not guilty.

The judge next explained to the jury the manner in which counsel on each side had approached the central issue in the evidence. He reminded the jury of the submissions, advanced on behalf of the prosecution, that the jury should not accept that the cruise control mechanism had anything to do with the excessive speed of the applicant’s vehicle. His Honour then summarised, in brief terms, the submission by counsel for the applicant. He noted that counsel for the applicant had referred to the evidence of Mr Enkelman that it was possible for a faulty cruise control to have caused the collision, and that counsel had submitted that there was no basis on which it could reject the applicant’s account, that he gave to Leading Senior Constable Morrison at the scene of the accident, that he had put the cruise control on. The judge reminded the jury of the submission by counsel for the applicant that the prosecution experts had said that, while it was unlikely that there had been a relevant fault in the cruise control mechanism, it was not impossible as an explanation for the accident.

The judge then said to the jury:

[Counsel for the applicant] says the prosecution experts also say that a faulty cruise control while unlikely is not impossible as an explanation. And in the end, she points out Mr Ankur does not have to prove that the cruise control was faulty. If you accept it was on, then it is for the prosecution to exclude that a faulty cruise control — they have to exclude that as a possibility. And I will say more about experts and give you directions and about excluding possibilities. I will give you directions and explain what is required of the prosecution, which is in short to exclude reasonable and rational explanations, not all the possibilities which would include unreasonable possibilities. I will expand on that shortly.

It is noteworthy that in that passage of the charge, the judge paraphrased the submissions advanced on behalf of the applicant that suggested that the issue, whether the cruise control was faulty, arose if the jury accepted that the cruise control was turned on. In a sense, it suggested that it was necessary for the jury to accept that the cruise control had been turned on, in order to consider whether the prosecution had excluded the possibility that it had malfunctioned.

The judge then reminded the jury of the submissions made by counsel concerning the non-expert witnesses. He told the jury, correctly, that the prosecution did not have to prove ‘every bit of evidence’ to the standard beyond reasonable doubt, but that the prosecution must prove, beyond reasonable doubt, the essential elements of the offence. Importantly, his Honour then gave to the jury the following direction concerning the account given by the applicant in his record of interview:

So it is not sufficient to just prefer the prosecution evidence over the accounts of the accused. You could reject the accused account, not believe it, what he said in his record of interview, but still not be satisfied beyond reasonable doubt of the prosecution evidence and that would lead to a verdict of not guilty because the prosecution have not satisfied you beyond reasonable doubt of the essential ingredients but of course if you think that the accused record of interview is true or possibly true, you would have to acquit him. To find the accused guilty, you would have to reject his record of interview and be satisfied beyond reasonable doubt that it was his dangerous driving that caused the death of Mr Deagan.

Thus, again, the judge emphasised to the jury that it was not necessary for it to accept the account given by the applicant that he had turned on the cruise control mechanism, and that it had malfunctioned. His Honour correctly told the jury that if it considered that it was possible that that account was true, it must acquit the applicant.

In the next passage of the charge, which occupied ten pages of the transcript, the judge summarised the evidence of the lay witnesses. It was at that point that the judge turned to the evidence of the three expert witnesses, Messrs Brickley, Curtis and Enkelman. His Honour gave to the jury the standard orthodox direction explaining why those witnesses, as experts, were permitted to give evidence as to their opinions, and his Honour told the jury that it was not obliged to accept the evidence of any witness. It was at that point that the judge then gave to the jury the impugned direction which is the subject of ground 1.

Thus, that passage in the charge occurred after the judge had, on two occasions, reminded the jury that the onus of proof of the critical elements in the charge lay on the prosecution, and that it could not be satisfied beyond reasonable doubt of the guilt of the applicant, if it considered that there was a reasonable possibility that, before the accident, the applicant had engaged the cruise control mechanism on his vehicle, and that it had malfunctioned when he attempted to disengage it. The impugned passage, in which the judge referred to the consequence of the failure of the jury to ‘accept’ that the cruise control mechanism was turned on, must be considered in light of the directions which preceded it, and which would have informed the jury’s understanding of the content of that phrase.

The question as to how, in that context, the jury might reasonably have perceived the impugned passage, and, in particular, whether it understood it to mean that the applicant had borne the onus of proving that the cruise control mechanism on the vehicle had been engaged, is not without some difficulty. The impugned passage was directed to the specific issue which was central to the outcome of the trial, namely, the explanation relied on by the applicant for the excessive speed and erratic manner in which his vehicle proceeded towards the point of the accident. At the least, the impugned passage had the capacity to undermine the otherwise clear directions given by the judge to the jury as to that aspect of the case. Nevertheless, with some reservation, viewed in the context of the directions which preceded it, we are not persuaded that the impugned direction could reasonably have been understood by the jury to have reversed the onus of proof, so as to require the jury to be positively satisfied that the applicant had turned on the cruise control, in order that the evidence of Mr Enkelman be relevant.

Our conclusion concerning ground 1 is reinforced by parts of the charge that followed the impugned passage. Almost immediately after that passage, and before the break, the judge briefly summarised the submissions made by counsel as to the expert evidence. In doing so, his Honour reminded the jury that counsel for the applicant had relied on the evidence of Mr Enkelman that there was a possibility that the cruise control mechanism had been faulty, and the judge noted the submission by counsel for the applicant that the other experts could not exclude that as a possibility.

The judge then gave the jury standard directions concerning the drawing of inferences and conclusions. In a passage, which is the subject of ground 2, and to which we will shortly turn, the judge reminded the jury that the prosecution argument was that the ‘only reasonable conclusion,’ as to why the vehicle drove at a dangerous speed, was that the applicant was in control of the vehicle and that he had pressed the accelerator of it to produce that speed. The judge reiterated to the jury the submission made by counsel for the applicant that there was a reasonable explanation why the vehicle had travelled at that speed, namely, that the cruise control was engaged and that it was faulty in a manner which caused the vehicle to increase its speed above the set limit.

Having further summarised the evidence of the experts, the judge directed the jury, correctly, in the following terms:

The conclusion that you draw must be a reasonable one, and it must be the only reasonable one. So the only reasonable explanation here, if you are to find Mr Ankur guilty, is that he drove the car in the way that increased its speed, such that he was driving in the speed that was dangerous to the public in all the circumstances. It was him that accelerated to that point. And you must exclude all other reasonable alternatives, and that is you must exclude, if you find it reasonable that the cruise control was on, and that it malfunctioned in precisely the way that is set out in that document. The prosecution do not have to exclude any explanation or alternative that is just unreasonable or fanciful. So that is the reasoning process. All right.

That passage occurred near the end of the charge. Having directed the jury as to the relevance of the evidence that the applicant was of good character and had no previous convictions, as to the necessity that the jury’s verdict be unanimous, and as to the use it might make of the transcript provided to it, the jury then retired to consider its verdict.

In summary, then, the impugned passage, which is the subject of charge 1, was preceded by two passages in the judge’s charge, in which he correctly explained to the jury the onus of proof, and the manner in which it applied to the explanation, given by the applicant in his record of interview, concerning the malfunctioning of the cruise control, and the evidence given by Mr Enkelman in support of that proposition. The impugned passage was followed by further directions given by the judge as to that matter, and concluded with the passage that we have just recited, in which the judge reinforced to the jury that it must exclude all other reasonable alternatives, for the explanation as to why the applicant drove at an excessive speed, than that contended for on behalf of the prosecution.

As we have discussed, the impugned passage, standing alone, did impermissibly reverse the onus of proof in respect of the question whether the applicant had applied the cruise control mechanism. In that way, it detracted from the clarity and cogency of the other directions given by the judge to the jury, which had made it plain that the prosecution bore the onus of proof on that matter. As we will shortly discuss, that consideration is relevant to consideration of ground 2. However, when the impugned passage is considered in the context of the charge as a whole, we are not persuaded that there was a reasonable risk that the jury might have understood the passage to have impermissibly reversed the onus of proof in respect of the issue whether the applicant had engaged the cruise control mechanism, and whether it had malfunctioned.

For those reasons, ground 1 of the application for leave to appeal must fail.

Ground 2 — submissions

As mentioned, ground 2 is directed to a passage in the judge’s charge in which his Honour gave an example to the jury of an inference or conclusion that would be theoretical or fanciful.

The passage occurred after the judge had summarised the submission by the prosecutor, that the only reasonable explanation, for the excessive speed at which the vehicle was driven, was because the applicant had depressed the accelerator of the vehicle, and the competing submission of counsel for the applicant that a reasonable explanation for the excessive speed of the vehicle was the malfunction of the cruise control. The judge reminded the jury that the prosecutor must prove on all the evidence that that alternative view (relied on by the accused) ‘is just not a reasonable alternative’.

It was then that the judge told the jury that he needed to give further examples to the jury ‘about that’. His Honour said:

Now, I just need to give you some further examples about that. So that is by emphasising that it is not just any alternative interpretation. One that is theoretical or fanciful. So let me just give you another example that perhaps will illustrate the reasoning. Now, probably like you, every Monday night or some night of the week, our bins go out. And so do the bins of everyone in the street. And on the Tuesday morning when I get up to head away, the bins are empty. And I draw the conclusion that the council truck has been and emptied bins and everyone else’s.
Now, I did not see it happen. So if I was asked is it possible that someone came in the middle of the night and stole my garbage and all of my neighbour’s garbage, put it in their ute and drove away, I’d have to say well, it is possible but it is so very unlikely or fanciful in all the circumstances that it is not a reasonable or rational explanation for my empty bins. And could I or should I conclude that it is not reasonable, it is a fanciful alternative or hypothesis? Well, I could come to that conclusion. It is possible but it is just fanciful and I would give it no more thought.

In support of ground 2, counsel for the applicant noted that, in her final address, defence counsel had, on a number of occasions, emphasised to the jury that the prosecution’s expert witnesses, and Mr Enkelman, had each said that it was possible that the cruise control might, in some way, have malfunctioned. In that context, it was submitted, the jury might have understood, from that example concerning the garbage collection, that the judge equated the degree of possibility of the explanation that the faulty cruise control system had malfunctioned, with that of the fanciful possibility, in the example, that someone had stolen his garbage on the previous evening. Counsel submitted that, in providing such an example to the jury, the judge failed to comply with the principles, outlined by the High Court in McKell v The Queen,[5] concerning the constraints on the discretion of a judge to comment on the facts of the case. In particular, it was submitted, the judge, by providing such an example, expressed the view that the conclusion reached by Mr Enkelman, on the defence case, involved a fanciful possibility. Counsel submitted that such a proposition, advanced by the judge, was in any event erroneous. Mr Enkelman’s opinion was based on his expertise and research, and his understanding of the evidence. In view of the importance of Mr Enkelman’s opinion to the defence case, it was submitted that the example so given by the judge to the jury has resulted in a substantial miscarriage of justice.
[5](2019) 264 CLR 307; [2019] HCA 5 (‘McKell’).

In response, counsel for the respondent submitted that the example given by the judge was no more than an analogical device employed by his Honour in order to assist the jury to understand the distinction between a reasonable explanation or possibility on the one hand, and a theoretical or fanciful possibility. Counsel submitted that the judge did not either expressly or by implication equate the opinion evidence of Mr Enkelman with the example that he gave of a theoretical or fanciful possibility.

Ground 2 — analysis and conclusion

Ground 2, and the submissions advanced on behalf of the applicant, are based on the proposition that in postulating the example concerning his garbage bin, as set out in paragraph 61 of these reasons, the judge would have been understood by the jury to have been impliedly expressing his view that the explanation advanced on behalf of the applicant, for the excessive speed at which his vehicle travelled before the collision, was fanciful and not reasonable.

In McKell, Bell, Keane, Gaudron and Edelman JJ, in their joint judgment, stated the relevant principles, concerning the discretion of a judge to comment on the facts of the case, in the following terms:

A trial judge’s ‘broad discretion’ to comment on the facts of the case in a criminal trial is an aspect of the power by which a trial judge discharges the fundamental task of ensuring a fair trial of the accused. The discretion is to be exercised judicially as part of ensuring that the facts of the case are put ‘accurately and fairly’ to the jury. It is not exercisable, at large, independently of the fundamental task described above. A fortiori, the trial judge's summing-up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment.
…
In addition, it should be clearly understood that the risk of such unfairness is such that a trial judge should refrain from comments which convey his or her opinion as to the proper determination of a disputed issue of fact to be determined by the jury.[6]

[6]Ibid 312–13 [3], [5] (citations omitted).

As an allied principle, it is a fundamental requirement, in a criminal trial, that the judge, in the charge, must fairly put the case of the accused to the jury. That principle was recently discussed in Mathieson v The Queen,[7] in which the Court cited the following passage from the judgment of Smith J in R v Wilkes and Briant:[8]

Important among the necessary safeguards is the established rule that it is the judge’s duty to put the defence fairly to the jury. That rule cannot, save in quite special circumstances, be departed from, without serious risk of a miscarriage of justice.[9]

[7][2021] VSCA 102, [62]–[63] (Priest, Kyrou and T Forrest JJA) (‘Mathieson’). See also R v Defrutos [1998] 2 VR 589, 597–8 (Callaway JA).

[8][1965] VR 475.

[9]Ibid 479.

In accordance with those principles, if, by the example in question, the judge was understood by the jury to be conveying his opinion as to the explanation advanced on behalf of the applicant for the excessive speed of the vehicle, that would have constituted a substantial contravention of the strictures placed by the High Court in McKell on the capacity of a trial judge to have made a comment to the jury concerning the facts of the case. It would also have resulted in a failure by the judge to put the defence case fairly to the jury in accordance with the principles considered in Mathieson.

The question, then, is whether the jury might reasonably have understood the judge, in the passage in question, to have conveyed his opinion that the explanation advanced on behalf of the applicant, for the excessive speed of his vehicle, was as fanciful as the possibility, in the postulated example, that the judge’s garbage had been stolen. In considering that question, the context in which the passage occurred, and the terms in which the judge introduced the example postulated by him, are of particular relevance.

In the part of the charge that preceded the passage in question, the judge gave the jury the standard directions concerning the drawing of inferences or conclusions in a criminal trial. In doing so, he correctly directed the jury that it should only draw reasonable conclusions from facts, ‘not fanciful ones’. The judge illustrated that principle by the common example of the person who is observed in Melbourne at 3:00 pm, and who is later seen in Sydney at 9:00 pm on the same date. The judge told the jury that it could correctly conclude from those facts that the person had travelled to Sydney by aeroplane, but that any conclusion that the person flew on a particular carrier (Qantas) would be a guess or speculation. The judge then told the jury that in a criminal trial there was to be no speculation or guesswork.

In that way, at that point, the judge had already given to the jury a simple illustration of the distinction between a rational inference and speculation. Having done so, the judge then reminded the jury that the case of the prosecution was that the only reasonable conclusion from the evidence was that the applicant’s vehicle travelled at a dangerous speed because the applicant had intentionally accelerated the vehicle. The judge reminded the jury that the case on behalf of the applicant was that a malfunction of the free control mechanism was a reasonable explanation for the speed of the vehicle. His Honour then stated that the prosecutor had contended that that proposition was ‘just not a reasonable alternative’.

It was at that point that the judge then said to the jury:

Now, I just need to give you some further examples about that. So that is by emphasising that it is not just any alternative interpretation. One that is theoretical or fanciful. So let me just give you another example that perhaps will illustrate the reasoning.

The judge then proceeded to postulate the example concerning his garbage, including the response that he would have given in answer to the question whether it had been stolen.

In that context, three points are quite clear. First, before the judge gave that example to the jury, he had already given a simple and clear example of a conclusion that would be a guess or speculation. It was not necessary for his Honour to further illustrate that point. Secondly, and related to that consideration, the judge, by his introduction to the example of the garbage bin, specifically related that example to the prosecutor’s argument that the alternative view, postulated on behalf of the defence, was not a reasonable alternative. Thirdly, the terms in which the judge expressed that introduction were quite telling. His Honour conveyed to the jury that he ‘need[ed]’ to give further examples about ‘that’; that is, the explanation posited on behalf of the applicant. His Honour stated that he would give that example ‘by emphasising that it is not just any alternative interpretation. One that is theoretical or fanciful.’ The language used by the judge in that introduction was unfortunate, but it implicitly conveyed the suggestion that the example he then proceeded to give bore a relationship to the explanation relied on on behalf of the defence in the trial.

Having given the example, the judge then returned, without further introduction, to the submissions advanced on behalf of the applicant. The judge noted that, in her final address, counsel for the applicant had, on a number of occasions, stated that all the experts had said that it was ‘possible’ that the cruise control had ‘sort of taken control of the car’ and increased its speed. The judge then summarised some aspects of the cross-examination of Senior Constable Brickley and Mr Curtis, in which each of them had conceded that it was not impossible that the cruise control mechanism had in some way been faulty. The judge then concluded by reminding the jury that there was to be no guesswork or speculation. His Honour stated:

The evidence is that there was no examination internally of this cruise control, and there it is. You cannot guess or speculate as to other cars that Mr Curtis does not have data of in respect of it. He just says, in the data that we do have, there is no example of any fault of this cruise control or increasing the acceleration in the way that Mr Ankur described. Alright, so no guesses or speculation.

In short, then, before the passage in question, the judge had already explained to the jury the distinction between, on the one hand, a rational inference, and on the other hand, a guess or speculation. He had provided a common example to illustrate that distinction. Having commenced his outline of the competing submissions of counsel concerning the question whether there was a reasonable possibility that the cruise control mechanism on the applicant’s vehicle had malfunctioned, there was no need for the judge to give a further example of what might be described as an unreasonable possibility or hypothesis. The judge directly related the example that he gave, concerning the garbage collection, with the hypothesis advanced on behalf of the applicant that the cruise control mechanism had failed. The terms in which the judge introduced the example, expressed in terms of a necessity to give further examples concerning that hypothesis, were calculated to invite a comparison between the improbability of the theft of the judge’s garbage, in the example postulated by his Honour, with that of the explanation given by the applicant for the speed and manner in which his vehicle approached the point of the collision. The example, given by the judge, was of an explanation for a circumstance (the removal of the garbage) that, while possible, was so improbable as to be fanciful. It was not balanced by a countervailing example of an hypothetical circumstance, in which an explanation for that circumstance, while improbable, would not be considered to be fanciful or unreasonable. Finally, having given that example, the judge then returned to the evidence relied on by the applicant, emphasising that the jury was only to draw reasonable conclusions, and that there was to be no guesswork or speculation.

When considered in that context, in our view there was a substantial possibility, if not likelihood, that the jury would have understood that the judge, by postulating the example concerning the garbage bin, was expressing his view that the explanation advanced on behalf of the applicant, for the excessive speed and manner in which his vehicle travelled to the point of the collision, was fanciful and not reasonable.

It was not in issue, on this application, that if the passage in the judge’s charge that is in question did constitute a comment by the judge on the facts, it failed to comply with the principles stated by the High Court in McKell. Plainly, such a comment was directed to the principle plank of the defence relied on on behalf of the applicant. In that way, it failed to comply with the principles stated by the High Court as to the discretion of a trial judge to make a comment on the facts of a case. In addition, the effect of the comment was such that the judge failed to fairly put the case for the applicant in a fair and balanced manner in accordance with the principles discussed by the Court in Mathieson.

For those reasons, ground 2 of the application for leave to appeal must be upheld.

Whether substantial miscarriage of justice

In view of the conclusion that we have reached in respect of ground 2, the question is whether, as a result, there has been a substantial miscarriage of justice pursuant to s 276(1)(b) of the Criminal Procedure Act 2009. In the context of the issues in the trial, the critical question is whether, notwithstanding the error in the judge’s charge, the evidence before the jury was such that the conviction of the applicant was inevitable.[10]
[10]Baini v The Queen (2012) 246 CLR 469, 479–482 [26], [30]–[33]; [2012] HCA 59 (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Kalbasi v Western Australia (2018) 264 CLR 62, 102 [113]; [2018] HCA 7 (Nettle J).

In that respect, counsel for the applicant submitted that it could not be concluded that, notwithstanding the error made by the judge in the charge, the conviction of the applicant was inevitable. In that respect counsel relied, first, on the evidence given by the applicant, and the passengers in his vehicle, that the cruise control mechanism had malfunctioned. Counsel then pointed to the concessions made by Senior Constable Brickley and Mr Curtis that they had not examined the cruise control module, and that accordingly they could not preclude the possibility that it had malfunctioned. Counsel further relied on the evidence of Mr Enkelman in that respect.

On the other hand counsel for the respondent submitted that the conviction of the applicant was inevitable. In support of that submission he relied fundamentally on two points. First, it was submitted, Mr Enkelman was unable to explain how, in circumstances in which the applicant said he had pre-set the cruise control at 60 kilometres per hour, the applicant’s vehicle had accelerated to 80 kilometres per hour before the accident. Secondly, counsel submitted that Mr Enkelman did not proffer any explanation as to why the application of the brakes on the vehicle did not disengage the cruise control mechanism.

Before turning to those submissions, it is important to bear in mind that the comment, which was the subject of ground 2, had the capacity to significantly undermine the central defence relied on by the applicant. In essence, while the judge had correctly directed the jury that, in order to convict the applicant, it must exclude any reasonable explanation consistent with his innocence, the garbage bin example then provided by the judge had the capacity to convey to the jury that the judge considered that the explanation relied on by the applicant, for the excessive speed of the vehicle, was fanciful and therefore should be disregarded. In that way, the implied comment by the judge was directed to the heart of the defence of the applicant to the charge against him. Further, the comment occurred in a section of the charge which was preceded by the passage, that was the subject of ground 1, and which had detracted from the clarity of the directions given by the judge as to the onus of proof on the critical issue of whether the cruise control had been engaged and had malfunctioned.

In the circumstances of the case, we are not persuaded that, notwithstanding those matters, the conviction of the applicant was inevitable. As counsel for the applicant noted, almost immediately after the accident, the applicant told Senior Constable Morrison that the cruise control mechanism on his vehicle had been defective. His assertion, as to that matter, was supported by the evidence of his passengers. Senior Constable Brickley and Mr Curtis did not examine the cruise control module of the vehicle, and therefore they could not preclude, as a possibility, that it had some defect which might have operated at the time of the accident. Mr Enkelman’s evidence, concerning that matter, was not particularly methodical. However, taken as a whole, Mr Enkelman did provide some explanation as to how the cruise control mechanism might have malfunctioned in the manner claimed by the applicant.

There was some force in the submission, made on behalf of the respondent, that Mr Enkelman did have some difficulty in explaining why, if the cruise control had been set at 60 kilometres per hour, the applicant’s vehicle accelerated to in excess of 80 kilometres per hour before the accident. In his evidence in chief, and subsequently in cross-examination, Mr Enkelman postulated that the applicant may have set the cruise control module at the incorrect speed. At another point, he explained the acceleration on the basis that while travelling at a lower speed the applicant had pre-set the cruise control mechanism to 60 kilometres per hour, so that it accelerated from the lower speed to 60 kilometres per hour. Neither explanation was supported by the statement made by the applicant to the police. However, ultimately, and when pressed on the matter in cross-examination, Mr Enkelman stated that a sudden acceleration above the pre-set speed might occur if there was a fault in the cruise control mechanism. He did not elaborate on that matter or describe or explain the type of fault which might have occurred. However, the answer that he gave at that point was not pursued by the cross-examiner. Based on it, the jury was entitled to consider that it was possible that the cruise control mechanism had malfunctioned in the manner described by the applicant, namely, by increasing the speed of the vehicle above that which he had set.

The other matter, relied on by counsel for the respondent, was that Mr Enkelman was unable to explain why the cruise control mechanism did not disengage after the applicant had pressed the brake pedal. It may fairly be said that Mr Enkelman’s evidence on that matter was not particularly clear. However, in evidence in chief, Mr Enkelman explained that if the cruise control module was functioning properly, pressure on the brake would send a signal to the brake light and ‘that will be the end of the story’. That response, it appears, was Mr Enkelman’s colloquial manner of stating that the cruise control mechanism would deactivate. He then, in answer to another question, said that if the cruise control module was faulty, in such a circumstance, it would maintain its pre-set speed. In cross-examination, Mr Enkelman effectively repeated the same position, namely, that if the brakes were applied, and if the cruise control module was faulty, the vehicle would continue to accelerate. While it must be accepted that the evidence given by Mr Enkelman on that topic was not a model of clarity, nevertheless it was such as to entitle the jury, if it accepted the evidence, to conclude that there was a possibility that a malfunction in the cruise control mechanism might have accounted for the fact that the action of the applicant in applying pressure to the brake pedal failed to disengage the cruise control.

For those reasons, it could not be concluded that the conviction of the applicant was inevitable. As we have discussed, the impugned passage, which was the subject of ground 2, had the capacity to undercut the central defence relied on by the applicant at the trial. In those circumstances, it must be concluded that as a result of our conclusion in respect of ground 2, there has been a substantial miscarriage of justice.

Accordingly, the applicant must be granted leave to appeal, and the appeal against conviction allowed.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

In view of those conclusions, it is not necessary for us to determine the application for leave to appeal against sentence. However, it is appropriate that we should do so in deference to the quality of submissions advanced by counsel on both sides on that aspect of the application.

The grounds upon which the applicant seeks leave to appeal against his sentence are as follows:

Ground 1:The Learned Sentencing Judge erred in his approach to the Applicant’s ‘current psychological state’.
Ground 2:The sentence imposed on the applicant was manifestly excessive.

The plea

The applicant was born in India in February 1989. After completing Year 12, he completed a three year Bachelor of Arts and Politics degree at a very young age. He then came to Australia at the age of 19 years. He studied a Diploma in Business Management for one year, Certificates 3 and 4 in Automotive (one year each), and an advanced Diploma in Business Management. At the time of the offence, he was in the course of an apprenticeship as a mechanic.

On the plea, counsel for the applicant relied on the applicant’s lack of relevant previous convictions, and on his good character. A large number of character references were tendered in that respect. A letter, expressing the applicant’s remorse and apology to the family of Mr Deagan, was read to the Court on the plea, and was tendered. In mitigation, counsel for the applicant also relied on the fact that the applicant would face deportation from Australia if he was sentenced to a term of imprisonment in excess of twelve months. It was submitted that that circumstance would weigh heavily on the applicant during the term of any custody to which he was sentenced. Counsel also noted that the applicant’s father had been diagnosed with cancer, and that he had been ill in India for some time. Accordingly, it was a matter of some hardship to the applicant in that, pending the resolution of the charge against him, he had been precluded from visiting his ill father. Counsel also relied on delay as a mitigating circumstance.

In support of the plea, counsel for the applicant tendered a report by Ms Alison Mynard, a clinical psychologist, who had examined the applicant in late January 2019 and, subsequently, in early December 2019. The applicant told Ms Mynard that he had been under considerable stress, and he reported severe symptoms of anxiety to her, including feeling nervous, scared and afraid, as well as having fears for the worst outcome, feeling that he could not relax, and a fear of losing control over his mind. Since the applicant had been in custody, he had on occasions become very claustrophobic and felt that he could not breathe very well.

Ms Mynard diagnosed the applicant to have an adjustment disorder (mixed anxiety and depression). She noted that the applicant did not have a history of mental health issues. However, since he had been charged, his mental health had deteriorated significantly. She noted that the applicant found prison more difficult than his peers due to several factors. They included that it was the first time that he had been in contact with the justice system, he felt extremely claustrophobic in his cell, and he was finding it very difficult to be away from his family. In addition, he knew that he would be deported and that he had lost so much. Ms Mynard recommended that the applicant needed to have access to mental health services to assist and support him concerning his current issues.

Reasons for sentence

In his reasons for sentence,[11] the judge concluded that the dangerous driving by the applicant had created a very significant risk to other road users, and that there was a high possibility in the circumstances that it would result in the death of another road user, as it did.[12] The judge stated:

This in my view was deliberate, irresponsible driving creating a high risk of harm to others including your passengers. The whole period of acceleration was such that ultimately you lost control. It reveals that your moral culpability is very significant indeed.[13]

[11]DPP v Ankur (Unreported, County Court of Victoria, Judge Mullaly, 17 December 2019) (‘Reasons’).

[12]Ibid [40]–[41].

[13]Ibid [44].

The judge assessed the applicant’s offending as to constitute a ‘very serious example’ of dangerous driving causing death, by engaging in aggressive speeding in a high powered vehicle in poor driving conditions that bespoke an ‘arrogant disdain for the safety of other road users’.[14] Accordingly, the judge rejected the submission advanced on behalf of the applicant’s plea that this was an example of the offence at the lower end of the range.[15]
[14]Ibid [50].
[15]Ibid [54].

In mitigation, the judge noted that the applicant was concerned about how his parents were coping, because he had felt an expectation as the son in the family to care for them.[16] The judge also noted the applicant’s concern as to whether his relationship with his current girlfriend could survive his incarceration and his inevitable deportation from Australia.[17]
[16]Ibid [60].
[17]Ibid [62].

The judge acknowledged the very substantial number of character references that were tendered on the plea, and he noted that the applicant was clearly a well-respected member of his community.[18] The judge accepted that the applicant had done well in Australia, that his relationship with his current partner is very important to him, and that he had been subject to significant stress and anxiety since the accident, and that a significant concern for him was that he would be deported on the completion of his term of imprisonment.[19] The judge therefore accepted that the term of imprisonment that he would impose would weigh more heavily on the applicant because of his concerns regarding deportation and his inability to return to Australia if he were to be deported.[20]
[18]Ibid [64]–[73].
[19]Ibid [75].
[20]Ibid [76].

The judge then turned to the report prepared by Ms Mynard. He noted that Ms Mynard had found that the applicant has an adjustment disorder, and that jail made him feel claustrophobic and anxious. In a passage, which is the subject of ground 1, the judge then stated:

As to your current psychological state as described by Ms Mynard, the Court of Appeal in the case of DPP v Meyer made clear that even pre-existing serious depression would not usually mitigate. Prison is hard. That is the point of it, if it is to be proper punishment and to act as a necessary deterrent. Also depression is all too common with prisoners, and cannot, in ordinary circumstance, operate to mitigate. Your predicament is what would be expected. Despite your anxiety and feeling claustrophobic, you have, in the short time that you have been in custody, been able to do courses in prison and all of that is to your credit.[21]

[21]Ibid [81].

The judge stated that he would take into account in mitigation the delay and the applicant’s good behaviour while he was awaiting trial.[22] His Honour accepted that the applicant felt ‘great regret’, albeit that it was not remorse based on a recognition of the applicant’s wrongdoing and his acceptance of responsibility.[23] The judge also accepted that the applicant had good prospects of rehabilitation.[24]
[22]Ibid [87].
[23]Ibid [89]–[90].
[24]Ibid [95].

In conclusion, the judge expressed the view that the sentencing purposes of general deterrence and denunciation must be given considerable weight.[25]
[25]Ibid [92].

Ground 1 — submissions

In support of ground 1, counsel referred to the opinion expressed by Ms Mynard, that imprisonment was and would be more burdensome for the applicant due to a number of factors. They included the applicant’s high levels of anxiety, depression and claustrophobia, his fear of further imprisonment, his fear of deportation, and his separation from his family. Counsel submitted that the judge erred in concluding that those matters did not constitute mitigating circumstances in accordance with the fifth and sixth limbs of the ‘Verdins’ principles,[26] because the judge considered that imprisonment is and should be hard for those sentenced to a term of imprisonment, and that the applicant’s predicament was no more than what would ordinarily be expected for any prisoner. Counsel submitted that that conclusion by the judge was contrary to the evidence that the applicant’s deteriorating psychological state was significantly more serious than might be expected in the usual course of the adjustment by a prisoner to prison life for the first time. Counsel further submitted that the approach taken by the judge was inconsistent with his Honour’s remark, in the course of the plea, that he would take into account that prison would weigh much more heavily upon the applicant because of his concern that he would be deported at the end of his term of imprisonment.
[26]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.

In response, counsel for the respondent submitted that the judge did take into account the applicant’s psychological state as a basis for mitigation. Counsel noted that the judge expressly took into account the applicant’s concern about the plight of his father, the future of his relationship with his partner, and his fear of deportation. Further, it was submitted, the judge did take into account the psychological conditions diagnosed by Ms Mynard, namely, his stress, anxiety, depression, adjustment disorder and claustrophobia. It was submitted that it was not an error for the judge to balance those factors against the consideration that a prison term would commonly, at least to a degree, carry with it lowered mood or depression for the person who is sentenced, so that to the extent that the applicant’s condition was a reflection of that common experience, it was insufficient to constitute a mitigating factor.

Counsel submitted that it was a matter for the judge to determine the extent, if any, to which the applicant’s condition exceeded what might be expected in the case of any person sentenced to a term of imprisonment. In that respect, it was submitted, it was unclear from the report of Ms Mynard whether the psychological difficulties detected by her exceeded those commonly experienced by the prison population in large.

Ground 1 — analysis and conclusion

In determining ground 1, it is important not to construe the passage of the judge’s reasons, relied on by the applicant, in isolation and divorced from the context of other findings made by the judge in respect of circumstances which, it was anticipated, would affect the applicant in an onerous manner during the term of his imprisonment.

Notwithstanding the submissions advanced on behalf of the applicant, the judge expressly acknowledged and accepted the concerns that the applicant would have, particularly concerning his parents, during his term of imprisonment. Having referred to the fact that, while the applicant was on bail, he had been precluded from visiting his father and family in India, the judge said:

You are worried about your father and how your mother is coping. You feel an expectation as the son in the family to care for your elderly parents. This has and will weigh heavily on you and I take this into account.[27]

[27]Reasons [60].

In addition, the judge expressly took into account the significant concern of the applicant that, at the conclusion of his term of imprisonment, he would be deported. The judge noted that that concern would be of ‘heavy weight’ because of the relationship that the applicant had with his partner in Australia. The judge acknowledged that the applicant’s partner had a close family in Victoria, that the applicant had intended to live with her in this State, and that by being returned to India after the completion of his sentence those joint plans would be impossible. The judge accepted that that circumstance would weigh heavily on the applicant during his term of imprisonment in the following terms:

This is a significant psychological weight upon you. You expressed as much in the letter that I read from you this morning. The stress and anxiety I spoke of, was noted in the psychological report secured after the plea.[28]

[28]Ibid [79].

In the next paragraph, the judge stated that he took into account the report prepared by Ms Mynard, noting that the applicant had an adjustment disorder after being placed in prison, with anxiety and depression, and that jail was causing the applicant to feel claustrophobic and anxious.[29]
[29]Ibid [80]. Cf Guden v The Queen (2010) 28 VR 288, 294–5 [25]–[27]; [2010] VSCA 196 (Maxwell P, Bongiorno JA and Beach AJA) (‘Guden’).

That finding by the judge immediately preceded the passage in his Honour’s reasons that is the subject of ground 1. The terms in which that passage was expressed are, perhaps, somewhat infelicitous. Any sentence of imprisonment is, by its very nature, difficult, because it involves a total deprivation of a prisoner’s right to be at liberty within society, and a most substantial detraction from the prisoner’s sense of autonomy and independence. In that sense, the judge was correct to say that prison is hard. We would observe, however, that it should never be accepted that, apart from those considerations, the conditions in prison should be harsh. The restrictions placed on a prisoner, and the prisoner’s loss of liberty, all too often do result in feelings of depression and anxiety. Read in its proper context, we do not consider that, in that passage, the judge entirely negated, as a mitigating factor, the particular impact that imprisonment did and would have on the applicant. As we have noted, that passage was preceded by findings by the judge in which his Honour expressly accepted that the applicant’s separation from his parents, and the circumstance that he would be deported at the conclusion of his term of imprisonment, constituted a ‘significant psychological weight’ upon him.

Thus, in effect, the judge did take into account, as a mitigating circumstance, the psychological stresses occasioned to the applicant as a result of his separation from his family and the prospect that he would be deported. To that extent the judge took into account, as a mitigating factor, the degree of psychological stress suffered by the applicant, described in Ms Mynard’s report, that resulted from those two factors. On the other hand, his Honour discounted part of the applicant’s psychological condition, that was diagnosed by Ms Mynard, as being attributable to the normal stresses and strains experienced by prisoners as a consequence of the deprivation of their liberty and sense of autonomy.

For those reasons, we would conclude that ground 1 of the application for leave to appeal against sentence would not succeed.

Ground 2

In support of ground 2, counsel for the applicant noted that the sentence imposed on the applicant was one of the highest sentences ever imposed for the offence of dangerous driving causing death. Counsel accepted that this would be a serious example of such an offence. However, there were powerful mitigating circumstances, which included the following:

·The applicant’s lack of a prior criminal history.
·The applicant’s previous good character.
·The applicant’s good progress in Australia since his arrival at the age of 19 years.
·The community service given by the applicant in this country.
·The applicant’s good prospects of rehabilitation.
·The significant delay in the hearing of the case and the associated anxiety occasioned to the applicant.
·The applicant had been of good behaviour during the period of delay and had demonstrated deep regret and empathy for the position of the deceased and his family.
·The applicant would face deportation at the conclusion of his sentence.

Based on those matters, it was submitted that the sentence imposed on the applicant was wholly outside the range of sentences available to the judge.

In response, counsel for the respondent accepted that the sentence was stern. However, he submitted that the sentence was not manifestly excessive. In particular, as the judge found, the highly erratic driving by the applicant in treacherous circumstances had created a very significant risk to other road users, so that the applicant’s driving was a very serious example of dangerous driving causing death. Counsel also noted that, in a case such as this, the sentencing purpose of general deterrence is of particular importance. In those circumstances it was submitted that the sentence imposed on the applicant, while stern, was not wholly outside the range of sentences available to the judge.

Ground 2 — analysis and conclusion

In order to succeed, on the ground that the sentence imposed on the applicant was manifestly excessive, the applicant must demonstrate that the sentence was wholly outside the range of sentencing options available to the sentencing judge. In other words, it must be demonstrated that the sentence, which is the subject of the application for leave to appeal, is so excessive as to bespeak error by the judge in the exercise of his sentencing discretion.[30]
[30]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).

Based on the jury’s verdict in the trial, the judge was entitled to conclude that the applicant’s offending was a very serious example of dangerous driving causing death, involving aggressive speeding in poor driving conditions in reasonably heavy traffic. Accordingly, the moral culpability of the applicant was quite significant.[31]
[31]Reasons [44], [50].

On the other hand, the applicant was entitled to rely on a number of important mitigating factors. Apart from a minor previous conviction, which the judge correctly disregarded, the applicant had no criminal history. The large number of character references, tendered on the plea, testified to the fact that the applicant was a person of particularly high character. He had made good progress in Australia since arriving in the country at a young age, and he had made a contribution to the community in doing so. The applicant was entitled to rely on the significant delay in the hearing of the charge, and on his good behaviour during that period. In addition, the judge accepted that, although the applicant had not accepted responsibility for the accident, nevertheless he genuinely felt deep regret and empathy for Mr Deagan and his family. Further, as we have discussed, the judge accepted that the applicant was concerned about how his parents were coping, and that that concern would weigh heavily on him during his term of imprisonment.

An important mitigating circumstance was the fact that the applicant would face deportation at the conclusion of his jail sentence. That consideration is relevant for two reasons. First, as the judge noted, that matter would weigh particularly heavily on the applicant. The applicant’s partner has a close family in Victoria. The applicant had intended to live with her here. His plans to do so would be rendered impossible if he was required to return to India. The judge accepted, correctly, that that consideration imposed a ‘significant psychological weight’ on the applicant. Secondly, the deportation of the applicant, after he had lived in Australia for ten years, and made a wide circle of close friends here, would constitute an additional extra-curial punishment.[32]
[32]Guden (2010) 28 VR 288, 295 [26]–[27]; [2010] VSCA 196 (Maxwell P, Bongiorno JA and Beach AJA).

Notwithstanding that the judge did discount some of Ms Mynard’s evidence concerning the applicant’s psychological condition, nevertheless it is clear that his Honour concluded that the applicant had suffered an adjustment disorder with anxiety and depression as a result of the considerations to which we have just referred. In addition, the judge accepted Ms Mynard’s finding that imprisonment was causing the applicant to experience episodes of claustrophobia. In those circumstances, the applicant was entitled to have taken into account, as mitigating factors, that a term of imprisonment would be more onerous for him than for other prisoners, and that it would exacerbate his psychological condition.

In a case such as this, the sentencing purposes of general deterrence and denunciation are of particular importance. However, notwithstanding the gravity of the applicant’s offending, and the importance of those sentencing principles, nevertheless we are persuaded that, in view of the combined effect of the mitigating circumstances on which the applicant was entitled to rely, the sentence imposed on the applicant was manifestly excessive.

It follows that we would have allowed ground 2 of the application for leave to appeal against sentence.

Summary of conclusions

For the reasons that we have discussed, the applicant has succeeded on ground 2 of the application for leave to appeal against conviction. For those reasons, we would grant the applicant leave to appeal, and allow the appeal. It follows that the applicant’s conviction, and sentence, must be set aside, and an order made for his re-trial.

We have also concluded that, if it had been necessary for us to determine the application for leave to appeal against sentence, we would have allowed that application on ground 2, on the basis that the sentence imposed on the applicant was manifestly excessive. In the circumstances, it would be inappropriate to embark on a theoretical resentencing exercise.

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4 May 2021