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Ankur v The Queen

Ankur v The Queen

Case [2021] VSCA 110 4 May 2021

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ankur v The Queen

Details

AGLC: Ankur v The Queen [2021] VSCA 110
Case: [2021] VSCA 110
Decision Date: 4 May 2021

CaseChat Overview and Summary

The applicant, Ankur, was convicted of dangerous driving causing death and appealed both his conviction and sentence. The case was heard in the court of appeal. The central issue for the court was whether the trial judge's direction to the jury regarding the applicant's expert evidence was erroneous and whether it amounted to a miscarriage of justice. Additionally, the court had to consider whether the sentence imposed was manifestly excessive, taking into account the applicant's psychological state as a mitigating factor.

The court examined whether the trial judge's direction to the jury that the applicant's expert evidence became irrelevant upon the rejection of his explanation for the accident was an error that reversed the onus of proof or equated the applicant's explanation to a fanciful possibility. The court referenced previous cases, such as McKell v The Queen and Mathieson v The Queen, to determine if the trial judge's direction was appropriate. The court found that the direction was indeed improper as it placed an undue burden on the applicant and diminished the weight of his expert evidence. This misdirection potentially led to a miscarriage of justice, as the jury may have been misled in their consideration of the evidence.

Upon finding that the misdirection was a significant error, the court allowed the appeal and ordered a retrial. The court also reviewed the sentence imposed, considering the applicant's psychological state as a mitigating factor. After careful deliberation, the court determined that the sentence was not manifestly excessive, thus no alteration to the sentence was necessary.

The final orders of the court were to allow the appeal against the conviction, order a retrial, and maintain the sentence as imposed by the trial judge. The court emphasised the importance of proper jury directions in criminal trials to ensure a fair and just outcome.

Orders