Arpaci v The Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0204

ADEM ARPACI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, PRIEST and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 February 2020
DATE OF JUDGMENT:	7 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 81
JUDGMENT APPEALED FROM:	DPP v Arpaci (Unreported, County Court of Victoria, Judge Hogan, 9 February 2018) (Conviction); [2018] VCC 285 (Sentence)

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CRIMINAL LAW – Appeal – Conviction – Culpable driving causing death – Applicant engaged in high speed race with another vehicle – Other vehicle crashed resulting in deaths of driver and passenger – Whether verdict unsafe and unsatisfactory – Whether applicant’s driving a substantial and operating cause of deaths – Whether trial judge erred by diluting separate consideration direction – Whether evidence of applicant’s attendance at illegal street car event admissible – Whether evidence that applicant revved engine admissible – Whether trial judge should have given propensity direction – Whether trial judge erred when directing jury on standard of proof – Whether trial judge erred by directing jury to use life experience – Leave to appeal granted – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Applicant convicted of two charges of culpable driving causing death – Applicant pleaded guilty to one charge of perjury – Total effective sentence 14 years’ imprisonment with non-parole period 9 years and 6 months – Whether total effective sentence, orders for cumulation and non-parole period manifestly excessive – Whether individual sentences imposed on culpable driving charges manifestly excessive – Whether sentencing judge erred in finding applicant’s moral culpability ‘slightly reduced’ by reason of gross negligence of other driver – Leave to appeal granted – Appeal allowed – Resentenced to 10 years and 6 months’ imprisonment with non-parole period of 7 years – Spanjol v The Queen (2016) 55 VR 350 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R van de Weil QC with Mr R Edney	Tas Roubos & Associates Ltd
For the Respondent	Mr C B Boyce QC with Ms E Ruddle	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P:

I have had the considerable advantage of reading in draft the respective reasons for judgment of Priest JA and Kaye JA. For the reasons given by Kaye JA, I agree that the applications should be determined as his Honour proposes.

PRIEST JA:

Overview

At about 1.30 am on Wednesday, 27 January 2016, the applicant, then aged 21 years, was driving a Ford XR6 sedan south-westerly on the Western Ring Road, with his friend Sinan Yelman as his passenger, when he engaged in a high speed race with another vehicle.
The other vehicle, a blue Holden utility, was driven by Harley Churchill (aged 19), with a passenger, Ivana Clonaridis (aged 18). On the approach to the E J Whitten Bridge, East Keilor, at a point when Mr Churchill’s vehicle was travelling at not less than 182 kph, the driver’s side rear tyre of his vehicle blew out effectively causing him to lose control. Mr Churchill’s vehicle then crashed through a steel barrier on the passenger side of the road. As it rolled down into the valley leading to the Maribyrnong River, Mr Churchill was thrown from his vehicle, suffering injuries from which he died. His utility then exploded into flames. Ms Clonaridis died in the vehicle.
Following a trial — it was the applicant’s second trial[1] — on 9 February 2018 a jury in the County Court found the applicant guilty of two charges of culpable driving causing the deaths of Ms Clonaridis (charge 1) and Mr Churchill (charge 2).[2]

Subsequently, on 19 February 2018, the applicant pleaded guilty to a charge of perjury on a separate indictment.[3]
[1]The applicant had earlier been tried in October and November 2017, but the jury were unable to reach a verdict and were discharged on 21 November 2017. Much of the evidence in the second trial consisted of replaying the recorded evidence of witnesses from the first trial.
[2]Crimes Act 1958, s 318(1). The maximum penalty is 20 years’ imprisonment.
[3]See [37] below.

On 16 March 2018, the trial judge imposed a total effective sentence of 14 years’ imprisonment on the applicant, with a non-parole period of nine and a half years.[4]
[4]The judge imposed a sentence of 10 years imprisonment on each charge of culpable driving, ordering that there be four years’ cumulation between the sentences. Her Honour imposed a sentence of six month’s imprisonment on the charge of perjury, which, by operation of law, was to be served concurrently. See s 16(1) of the Sentencing Act 1991.
The applicant now seeks leave to appeal against his conviction — including on a ground that asserts that the verdicts of guilty are unsafe and unsatisfactory, Churchill’s conduct being the substantial and operating cause of the two deaths — and against his sentence.
For the reasons that follow, I would grant leave to appeal against conviction; allow the appeal; set aside the convictions on both charges; order a new trial on charge 1; and enter a judgment of acquittal on charge 2. In light of those conclusions, it is unnecessary to consider the application for leave to appeal against sentence.
Before turning to the issues raised by the grounds of appeal, it is necessary to set out the evidence in the trial in moderate detail,[5] and to summarise the manner in which the prosecution case was put.
The evidence
[5]Much of the evidence was, as I have indicated, put before the jury by playing the recoded evidence of witnesses from the applicant’s first trial. The evidence of the following witnesses was received in that fashion: David Szadurski; Brandon Arnott; Matthew Hargraves; Carly Decker; Gani Vatensever; Ryan Cameron-Smith; Chloe Tribe; Nathan Kleeven; Cain Mitchell; Claudia Strinavic; Michael Azzopardi; Mason King; Argapi Lianos; Marcia Hunter; Paul Moss; Darcy England; Trevor Nicholas; Jayde Weil; Gerard Clanchy; and Henrich Bouwer.
The scene

The Western Ring Road (‘the Ring Road’) is an urban freeway connecting the northern and western suburbs of Melbourne to other urban and rural freeways. At the scene of the collision, it is straight in alignment and has a south-west to north-east orientation. The road is bitumen, and the north-east and south-west bound lanes are divided by a grass median strip. A steel ‘Armco’ railing safety barrier was erected on the left-hand and right-hand side of the south-west bound lanes to prevent vehicles crossing to the incorrect side. There were three lanes for south-west bound traffic, delineated by broken white lines; and a sealed emergency lane on both sides of the south-west bound traffic lanes, delineated by a solid white line. A large grassed verge area — which ran slightly uphill and then ran down into a valley to the south — was situated parallel to the sealed emergency lane on the southern side of the south-west bound lane. The E J Whitten bridge runs over a deep valley at the bottom of which is the Maribyrnong River.

At the point where the collision occurred, the speed limit was 100 kilometres per hour.

Invitations to race and racing

Kayla Kelly gave evidence that, in the evening of 26 January 2016 — which was the Australia Day public holiday — she went to an event known as the ‘Northern Skids’ with Gani Vatansever, Carly Decker, Brandon Arnott and Matthew Hargraves. She described the Northern Skids as ‘basically an illegal car meet’ where up to 300 cars will attend ‘to go and do burnouts’. Ms Kelly and her companions left the Northern Skids — which had moved to different locations during the evening, finally to Thomastown — at about 1.00 am, and started heading for home in Melton. At the set of lights at Pascoe Vale Road, before the entrance to the Ring Road, their vehicle pulled up beside a silver Ford Falcon, which was on the passenger side of their vehicle. She said: ‘once he had pulled up beside us I heard a constant revving sound which … would be his foot tapping the accelerator, and that indicated that he wanted to drag race with us’. Later, as her vehicle was travelling on the Ring Road, the silver Ford Falcon and a ‘blue ute’ went ‘flying past’. After the tail lights of the two vehicles had disappeared she heard a ‘loud explosion’ and saw ‘a massive orange glow in the air’. When her vehicle got to the next bridge, she saw the ute had gone down the embankment, and she called ‘000’ emergency services.
Gani Vatansever, had been at the Northern Skids, where people had been doing ‘burnouts’. He was driving home on the Ring Road when a blue Holden ute ‘went racing past … at a hell of a speed’. He observed that his friend, Ryan Cameron-Smith, who was in another vehicle (a ‘purple Commodore’), had to move out of the way to avoid the ute. The next thing Mr Vatansever saw was a ball of flame.
Carly Decker gave evidence that she and others went to the Northern Skids. Going home on the Ring Road — Gani Vatansever was driving — a ‘blue ute came flying past us’, and a silver Ford passed on the left. They were going a ‘lot faster’ than the vehicle she was in. Ms Decker and her friends ‘just keep travelling, and then the next we see was just, obviously, flames or fire and smoke, and then that’s when we pulled over’ by the E J Whitten Bridge.
Brandon Arnott said that, after attending the Northern Skids, he and his group were travelling on the Ring Road when a blue ute ‘went flying past’ on their left. It pulled up beside a silver Ford before they both ‘took off’. Not long after that he saw smoke and flames.
Matthew Hargraves had been at the Northern Skids with friends where he saw ‘cars doing burnouts’. Afterwards, at a set of lights before the Ring Road, a silver Ford that had pulled up to the right of their vehicle was ‘revving his car’, and ‘egging us on to a drag race, but jokingly’. Mr Hargraves gave evidence that on the Ring Road, a blue ute ‘went flying past us really fast’. The blue ute ‘then sort of slowed down next to the Falcon and at some stage then they took off together’. After the vehicles had accelerated away, Mr Hargraves noticed ‘a sort of orange glow coming from the left-hand side of the E J Whitten Bridge’. Once his vehicle stopped he looked down and saw a car on fire.
Claudia Strinavic had also been to the Northern Skids in an industrial area of Thomastown. She attended with her friends Ryan Cameron-Smith, Chloe Tribe, Cain Mitchell and Nathan Kleeven in a purple Commodore driven by Mr Cameron-Smith. Going home on the Ring Road she noticed a silver Ford ‘just revving, sort of going ahead a bit, dropping back’. She ‘assumed that he was trying to race us’. A bit later, she observed the silver Ford and a ‘blue or green’ VF ute ‘sort of revving at each other’. They were ‘sort of looking at each other, and then they sped off’. There was a ‘bang’ and a ‘fireball’, and ‘it looked like the ute had gone off the bridge’.
Ryan Cameron-Smith had been with Claudia Strinavic and the others at the Northern Skids. He was driving a purple Commodore owned by his girlfriend Chloe Tribe. At the lights before the Ring Road, a silver Ford pulled up beside their vehicle. He said that, after the lights had changed, the silver Ford was ‘accelerating, revving, whatever you want to call it, forward and backwards, so in front of me, then I’d go a bit in front of him … and then he’d go in front of me again’, so that he ‘strongly thought he was trying to race me’. Mr Cameron-Smith did not ‘engage’ with the silver Ford, but the silver Ford and a ‘blue Holden ute’ — which had come up behind his vehicle ‘really quick’ — ‘sort of just took off like a race’. They started ‘side by side’, and ‘took off pretty quickly’, ‘varying from lane to lane to … pass traffic’. One vehicle ‘would follow the other one and then they’d go around a car separate ways’. They went around ‘about ten’ cars. Mr Cameron-Smith saw that ‘they braked pretty hard and then before I even knew it there was an explosion’. When his vehicle got to the bridge he could see a car in flames.
Chloe Tribe went to the Northern Skids with friends. Ms Tribe said that later, when travelling on the Ring Road, a silver Ford was beside them ‘looking at us and going back and forth, like revving’, and ‘we felt like they were trying to race us’. She then saw a blue ute, and then the blue ute and the silver Ford ‘both flew in front of us, around us’. The speed of the vehicles was ‘extremely fast’. They came to a truck and ‘then the ute went off to the left and then the other car like went to the right of it and kept going’. Ms Tribe then saw a ‘massive spark’, before her vehicle stopped at the bridge.
Cain Mitchell gave evidence that he went to the Northern Skids, where cars ‘do burnouts’. After leaving, his vehicle was on the Ring Road. He ‘woke up’ and noticed a silver Ford which ‘was pulling away, pulling back’. A ‘blue VF ute’ went speeding past on the right and the Ford ‘took off with it as well’. Mr Mitchell said that ‘they were travelling very fast through traffic, and … pretty much not long after, that’s when they crashed’. They had been ‘weaving in and out of traffic’. Mr Mitchell said that the blue ute veered off the road and ‘it looked like sparks came from somewhere at the start, and then the ute went off the road and crashed’. He saw ‘brake lights come on in the car, [the vehicle] veer off the road and hit the barrier’, and then ‘it flew off the bridge and exploded pretty much’. He and his companions pulled over but there was nothing they could do.
Nathan Kleeven was with friends and saw ‘some vehicles doing burnouts at the Skids’. Later, on the Ring Road, a silver Ford came up beside their vehicle, accelerated and then backed off, ‘trying to drag race’. After the silver Ford dropped back, he did not see it again until it passed his vehicle. Mr Kleeven said: ‘There was a blue VF that come past us as well, and the VF was in front of the silver car, and then after that they just kept pretty much going as fast as they could, and then ducking in and out of traffic, then we lost them for a bit, and then, yeah, all of a suddenly [sic] probably the biggest flash I’ve seen in me [sic] life’. At the bridge he ‘tried to run down there but the flames were just too intense’.
Paul Moss gave evidence that he had left home in Laverton to go to work at about 1.00 am on Wednesday, 27 January 2016. He was driving on the Ring Road with the cruise control of his vehicle set at 100 kilometres per hour. As he was heading to the Keilor Park underpass, he noticed in his rear vision mirror two cars — one a blue ute and the other a silver car — ‘coming at a decent rate’. Mr Moss said that ‘just before the underpass one of the cars, the ute, went to the inside left lane quickly, then come [sic] back in front of me which give me a bit of a fright because they were going that hard, so he more or less come in there and come in front of me and the other guy’s straight past me on the right-hand lane, but because the underpass thing goes into two lanes it was a bit of … a fright’. His evidence continued:
Well, from Keilor Park they were behind me, went to the inside lane, then cut back in front of me again, so they were both in the middle lane and the right-hand lane going along, and as further went along I thought to myself they’re going – you know, this is crazy, but anyway, and I seen [sic] a truck in the distance and the gentleman in the ute, or the ute then went – veered to go left, to go around it, which I presume like it was going to go around me, and I noticed it fishtailed out to the left. He tried to correct it, then I just noticed it go over the bridge.
Michael Azzopardi had caught up with friends in the evening of 26 January 2016. As he was driving home on the Ring Road, approaching the E J Whitten Bridge, he noticed two cars — a blue Holden ute and a silver Ford sedan with ‘P’ plates — come up from behind his vehicle (as his passenger said) ‘fairly quick’. The cruise control on his vehicle was set at 100 kph. Both vehicles flew past — ‘the silver went first and the blue one was … not far behind it’ — and ‘got distance from [him] pretty quickly’. His car ‘shook a little bit … because they were speeding past [him]’. He lost sight of them, then saw fire and smoke when he got closer to the bridge. Mr Azzopardi said that ‘there was bumpers everywhere and everything everywhere, heaps of spot fires and everything’, so he pulled over.
Darcy England saw a collision in the early hours of 27 January 2017 at the E J Whitten Bridge. Earlier, she had been at the Northern Skids and had observed a metallic blue VF Holden Commodore ute — Mr Churchill’s vehicle — attempting to do a burnout. (Ms England said the attempt was unsuccessful because of the vehicle’s ‘traction control’.) That vehicle later ‘tailgated’ her vehicle in the lead-up to the Ring Road. Thereafter, when she was travelling on the Ring Road with her vehicle’s cruise control set at 100 kph, she observed the blue ute and a white or silver Ford were side by side ‘drag racing’. The silver vehicle went around a ‘B double’ truck, and, as the blue ute went to go around the truck, it ‘hit a pole and the crash barrier and then it like [sic] rolled down the embankment’. Ms England then saw flames.
Argapi Lianos was travelling from the airport towards the city on the Ring Road at about 1.15 am on 27 January 2016 when a blue ute ‘flew past on the driver’s side’ closely followed by a beige or silver car. There was a ‘whoosh sound as the cars flew by’, and the ‘car rocked’ because there was a ‘sort of vacuum impact with movement’. They were ‘very close’, which was ‘a bit extraordinary because of the … speed they were going’. There was then an explosion and the witness saw ‘a big orange fireball’.
Marcia Hunter was in the car with Ms Lianos. At some point on the Ring Road ‘a blue ute … flew past very fast, followed quite quickly by another metallicy [sic] sort of coloured car’. By comparison to the speed of her vehicle, the ute was travelling ‘very, very fast … it was as though I was almost stationary, it was that quick’. Ms Hunter said that as she travelled along she became aware of a ‘big fireball’, and she knew that something had happened.
Mr Churchill’s drug use
Dr Heinrich Bouwer, a forensic pathologist, performed a post-mortem examination upon Mr Churchill’s body on 5 February 2016. Toxicological examination of Mr Churchill’s blood detected methylamphetamine at 1.7 milligrams and amphetamine at 0.4 milligrams per litre.
Dr Dimitri Gerostamoulos, the Chief Toxicologist and Head of Forensic Science at the Victoria Institute of Forensic Medicine, gave evidence that ‘there are risks associated with having methylamphetamine on board, in terms of your being able to drive properly’. Methylamphetamine ‘is a risk factor for driving, which is why it’s tested at the roadside by Victoria Police’. It ‘is always a negative to driving performance’. Although he could not be specific about the effects that the methylamphetamine in Mr Churchill’s system had on his driving, Dr Gerostamoulos said that drivers who have ingested the drug ‘show an increased risk of having an accident as a result of … increased risk taking, [and] increased confidence’. The drug affects a driver’s judgment, perception and motor coordination. It is known ‘that drivers who have methamphetamine in their system are more likely to be involved in an accident than those who are drug free’. Dr Gerostamoulos said that ‘there is a whole body of scientific literature that shows having methamphetamine in your blood is a risk and even some of the work that we’ve done here at the Institute of Forensic Medicine, we’ve shown that drivers who have methamphetamine in their system are at least two times more likely to be involved in an accident and for truck drivers, up to about nine times more likely to be involved in an accident when they have methamphetamine in their blood as opposed to drivers who have no drugs in their system’.
Mr Churchill’s tyres

David Szadurski met Mr Churchill for the first time at the Northern Skids. He noticed that Mr Churchill had 20 inch Simmons tyres (referred to as ‘bigs’) on the front of his vehicle, but had put standard 16 inch tyres on the rear (referred to as ‘smalls’).
Brett Garcia had known Mr Churchill ‘since he was about 12 years old’. Mr Churchill, Mr Garcia said, had owned the blue Commodore ute for about three months. Mr Garcia said that when the vehicle was purchased, it came with ‘original Holden wheels’, which were ‘16 inch’ (diameter). He said that, after purchase, Mr Churchill fitted Simmons ‘mags’, being ‘bigger’ 20 inch wheels and tyres, with a ‘lower’ profile. Mr Garcia said that Mr Churchill called him on 26 January 2016 because he ‘couldn’t get his wheel nuts off, they were too tight’. He was ‘was going to the Skids or burnouts as they call them’, and wanted to change the tyres so he could do ‘burnouts’ (and save his more expensive tyres). Mr Garcia helped Mr Churchill change the tyres.
Accident reconstruction
Dr Jenelle Mehegan, a Detective Sergeant attached to the collision reconstruction unit of the Major Collision Investigation Unit of Victoria Police, has a PhD in mechanical engineering. As a result of investigation, she formed the opinion that, so far as the ‘order of events’ of the fatal collision is concerned, the blowout of Mr Churchill’s tyre occurred first. The blowout caused Mr Churchill to steer to the left and apply emergency braking, leaving a ‘yaw’ mark. When the vehicle started to yaw, Dr Mehegan said, it ‘was not travelling less than 182 kilometres per hour’. Dr Mehegan said that ‘the faster a vehicle is travelling, the less steering that is required to get it to yaw’. A vehicle ‘will get into a yaw easier the faster it’s travelling’, and that at the ‘type of speed’ at which Mr Churchill was travelling it is ‘very difficult to recover [from] this yaw’. Any attempt to recover from a yaw ‘typically results in … an oversteer back in the other direction’. She said of Mr Churchill’s vehicle that, ‘Once it was in a yaw it was very difficult to stop this vehicle from ending up over the side of the mountain’.
Senior Constable Ian Ellis, a mechanical investigator attached to Victoria Police Mechanical Investigation Unit, examined Mr Churchill’s vehicle. He saw indications that the driver’s side rear tyre ‘was flat or deflated before it actually caught fire’, indicating that ‘the tyre’s either blown out or dislodged from the rim on the outside edge’. Importantly, Senior Constable Ellis gave evidence that the tyres on Mr Churchill’s vehicle were under-inflated, and that, with an under-inflated tyre, ‘the faster you go the quicker … it’ll blow’. He would expect that, at a speed in the order of 180 kph, an under-inflated tyre would ‘blow very quickly’. If the vehicle had been travelling ‘a lot slower’, the tyre blowout ‘may not have been as violent or [the tyre] may not have blown at all’. At the speed the vehicle was doing, the situation was ‘unrecoverable’.
When cross-examined, Senior Constable Ellis agreed that to have 20 inch wheels on the front of the vehicle, and smaller wheels at the rear, although ‘not critical’, was ‘less than ideal for the stability of the car particularly at speed’. He also said that an under-inflated tyre ‘is going to heat up more quickly than if it was a properly inflated tyre’, and that if ‘burnouts’ were done ‘immediately before the driving of the car at speed’, that could ‘have contributed to the heat of the tyre’. In re-examination he again said that burnouts can ‘definitely’ heat the tyre, but added that once that activity had ceased the tyres ‘cool down’.
Sinan Yelman
In the course of the first trial, after a voir dire, the prosecutor was permitted to treat the applicant’s passenger, Sinan Yelman, as an unfavourable witness.[6] His evidence from the first trial — which was heavily criticised by both counsel[7] — like much of the evidence of other witnesses, was replayed to the jury in the second trial.
[6]See Evidence Act 2008, s 38.
[7]In his final address, defence counsel told the jury that he would not trust Mr Yelman ‘as far as [he] could throw him’.
Mr Yelman gave evidence that he had gone to the Northern Skids with the applicant. There was so much tyre smoke it affected his asthma. After leaving the Northern Skids, he was a front seat passenger in the applicant’s car. In his first statement to police, made 5 February 2016, Mr Yelman said that, just after the Calder freeway underpass, a blue ute came up on their right side and came level with their car before accelerating away. It then dropped back before accelerating away again. The applicant then accelerated in an attempt to catch up with the ute. After a taxi moved out of the right lane to let the ute pass — causing the applicant to brake — the applicant accelerated to catch the ute. Mr Yelman estimated his speed to be up to 160 kph. After the ute moved to the left lane and was passing a truck on the left, the ute braked heavily and the back of the ute ‘jumped in the air a bit’ and the front dipped down. The right rear of the ute kicked around to the right and it turned left into the metal barrier on the left of the road. He then lost sight of it.
CCTV footage
Police managed to obtain CCTV from residential premises located approximately one kilometre south of the E J Whitten Bridge. Although perhaps a matter of interpretation, the footage (Exhibit F) appears to show two sets of headlights travelling considerably faster than other traffic on the approach to the bridge. One set of headlights appears to pass a slower moving set of headlights — presumably those of the truck — on the right while the other set of headlights appears to go off left and explode into a fireball.
Investigation and interview
Neither the applicant nor his passenger contacted police immediately after the collision. In the days after the accident, police commenced a media campaign in an effort to locate the driver of a Ford sedan believed to have been involved.
On 3 February 2016 — a week after the accident — police went to the applicant’s home. The applicant provided a statement in which he denied any involvement in the incident or being the driver of the vehicle that was wanted by police. Among other things, he falsely stated: ‘I didn’t see anything untoward and definitely didn’t see the crash that was reported. … I have heard about the crash on the Bridge but did not know who was involved or anything about the crash’. This statement was the foundation of the charge of perjury to which the applicant pleaded guilty.[8]
[8]The indictment charged that the applicant:
at Delahey in Victoria on the 3rd day of February 2016 in a written statement for the purposes of the investigation of an offence knowingly falsely stated that he:
a. definitely didn’t see the crash that was reported; and
b. does not know who was involved or anything about the crash on the bridge
and signed an acknowledgement in the presence of MATTHEW HUNT a police officer confirming that the statement is true and correct and is made in the belief that a person making a false statement is liable to the penalties of perjury.
The next day, 4 February 2016, the applicant telephoned police and admitted that he was the driver they were looking for. Police interviewed the applicant later that day. He told police that he was driving along the Ring Road at about 90 kph when Mr Churchill’s vehicle came ‘gunning’ past and he decided to join in. The applicant said that he observed Mr Churchill’s vehicle lose control and crash. He said that he stopped on the other side of the road and ran across and saw flames. Someone told him that the car had burst into flames. He then left because his passenger was panicking and said he had to go home.
The prosecution case
On both charge 1 — involving the death of Ivana Clonaridis — and charge 2 — involving the death of Harley Churchill — the prosecution case against the applicant purportedly was one of ‘direct liability’. (It may be assumed that the prosecutor used the expression ‘direct liability’ to distinguish it from liability based on some form of complicity.)
With respect to charge 1 only, the prosecution relied on ‘complicity’ as an alternative form of liability. Acknowledging that Harley Churchill could not be the ‘principal’ offender with respect to the driving that led to his own death — the offence of culpable driving requires that an offender cause the death ‘of another person’ — the prosecution contended that the applicant might be guilty of the first charge on the basis that he encouraged Mr Churchill, the ‘principal’, to drive in a grossly negligent way, thereby causing the death of Ms Clonaridis.
Thus, in his final address, the prosecutor described the alternative bases upon which the prosecution case was put by telling the jury that[9]
[9]Emphasis added to this and following passages.
Now, at the outset of this trial I indicated that the prosecution case can be put — or is put — in different ways. Charge 1 relates to the death of Ivana Clonaridis, and in relation to Charge 1 the prosecution puts the case in two ways … and one of those ways relies on principles of complicity — and you remember I gave you the example at the outset where the barristers are having a fight downstairs and the instructing solicitor urges his barrister to hit the other barrister. That’s an act of encouragement, and the law says that that person is guilty of the crime of the principal offender. Now, the reason this is only available for Charge 1 is that culpable driving requires the principal offender to cause the death of another person. So Harley Churchill can’t be the principal offender in his own death, so the principles of complicity only relate to Charge 1. That’s the reason, because that’s how culpable driving is defined.
So to convict on Charge 2 you’ve got to be satisfied of [the applicant’s] direct liability that his — that is, his driving was causally related to the deaths — but I’ll come back to that, but just so long as you understand why it will — the complicity principles relate to Charge 1, but not Charge 2.
Looked at in this way, the prosecution have to prove that Harley Churchill drove in a grossly negligent fashion. That’s the first thing. And we say — and I — for all the reasons I’ve outlined the prosecution argument is that he did. Secondly; that Harley Churchill’s grossly negligent driving … caused the death of Ivana Clonaridis, and by ‘cause the death’ that means it has to be a significant or substantial cause of a death — not the only cause, but a significant or substantial operating cause of a death and you will get some reasonably detailed instructions on that.
And then, looked at in this way, the complicity principles, the prosecution has to prove that [the applicant] encouraged by his conduct or his behaviour here, encouraged Harley Churchill to drive in a grossly negligent fashion. So this is complicity. Encouragement of a principal offender to commit an offence. In this case, the offence of culpable driving or dangerous driving.
And the law provides this — that a person who is involved — a person involved in an offence is taken to have committed the offence. A person is involved in an offence if that person intentionally encourages the commission of the offence. So to be involved, you’re guilty of that offence and you’re involved if you intentionally encourage the commission of the offence. So in this form of criminal liability, the prosecution have got to show acts of intentional encouragement of Mr Churchill in circumstances where [the applicant] knew the essential facts or circumstances of the offence, the principal offender, Mr Churchill, was committing.
I mean you can understand that if you’re encouraging someone to do something but you don’t know the facts of the crime he’s about to commit, you could hardly be held responsible for that crime. You can understand that. But in relation to this case, the prosecution says, ‘Well, [the applicant’s] right there. He’s on the road. He’s part of it. He’s intimately connected to it. He knows exactly what’s going on.’ That is that they’re driving at these speeds, on this road weaving, ducking et cetera. He knows exactly what’s happening. So he’s aware of the essential circumstances of Mr Churchill’s conduct. He doesn’t have to reason then and there that ‘Oh, look. This is grossly negligent driving.’ He doesn’t have to reason in that way. He just has to know the essential facts of it. And the prosecution says, ‘Well, he clearly does.’
…
This mutual encouragement is rely [scil, really] the essence of competitive driving or a competition. So the prosecution says that in this way of looking at the case, [the applicant] is clearly aware of the essential circumstances of Harley Churchill’s conduct, of his grossly negligent driving. He’s essentially, basically doing the same thing. And that clearly he encouraged Mr Churchill by his actions on the Ring Road dto drive in a grossly negligent fashion. And he did so, and it’s that gross negligent driving that caused the deaths of — caused the death of Ivana Clonaridis. So that is the case put on the complicity basis.
Now, for Charges 1 and 2 there is another way of looking at this and it’s this — that [the applicant] drove in a grossly negligent manner and that his grossly negligent driving caused the death of Harley Churchill and Ivana Clonaridis. Test is the same. Was [the applicant’s] driving a significant or a substantial cause of their deaths?
And this way of looking at it is really based on the same underlying facts. This may well be a more difficult concept to get your head around that simply encouraging someone else to drive grossly negligently and that driving causing the deaths. But it’s put in this way, that it’s based on the same facts, there’s not two sets of facts here, there’s one and it’s put in this way that they both were grossly negligent in their driving. That Mr Churchill wouldn’t have been driving like this unless the accused had driven in the way that he did and did the things that he did.
It’s a competition, it takes two people to have the competition and that really on the road they were like a unit, pushing each other, encouraging each other to drive in the way that they drove and again, the factual dispute comes down to the same thing; that the prosecution submission to you is that it’s very clear that they were racing or competing. It’s clear that [the applicant] was looking for this competition, that the race took them to the Whitten bridge and you know what happened from there — and that it took two people to engage in this race and looked at in that way, you can’t really separate the conduct of one from the other. That without [the applicant’s] driving … you don’t have Mr Churchill driving in the way that he did. So that in that sense, if you ask yourself the question, if you accept those facts and that proposition and ask yourself the question, ‘Was [the applicant’s] driving a significant or substantial cause of the deaths?’ A matter for you but my submission is the answer is ‘yes’ and I emphasise that for causation it does not have to be the only cause or even the — or the sole cause. The test is it was a significant or substantial cause and the prosecution says the answer to that question is ‘yes’ but of course that all depends on how you interpret the facts in this case. But the prosecution says that Churchill’s driving wasn’t independent of the [applicant]. He wasn’t driving 182 kilometres and weaving in and out of traffic for any other reason that he was in a competition with the [the applicant]. ...
So, that’s the second way that it’s put. Direct liability. [The applicant’s] driving is a significant — was a significant cause of the deaths of both Mr Churchill and Ms Clonaridis and as I say, the way it’s put is that really they’re in competition therefore they are not independent of each other, therefore, looked at in that way it is a significant cause.
So, they’re the two alternative ways that the case is put. I briefly want to go through some of the evidence. …
On the issue of causation, the prosecutor argued in his final address that the rear tyre on Mr Churchill’s vehicle would not have blown out if not for speed; that Mr Churchill might have managed to maintain control of the vehicle after the blowout if not for speed; and that the vehicle would not have breached the metal barrier if not for speed. The speed, the prosecutor argued, was an integral part of the racing between the applicant and Mr Churchill. Hence, the prosecutor put the following arguments to the jury:
But I want to start by talking about what the prosecution says in broad terms that emerges from the evidence and it’s this: the prosecution says that the [applicant], baited the laser at the lights at Pascoe Vale Road as you go to the Western Ring Road by revving and so forth and that once on the Western Ring Road he then baited the purple Commodore so that he was seeking to engage other vehicles in a race or competitive driving and that’s ultimately what happened because Mr Churchill engaged him — the prosecution says side-by side on the Western Ring Road shortly before the Calder Freeway interchange or around there, before the lights and that there was a period of time where they were side by side before the race began in earnest or the competition, however you want to phrase it after the speed cameras. You know that speed cameras were working and they didn’t pick up either of these vehicles as speeding.
The prosecution case is that the two of them exposed themselves and anyone in their vicinity to the risk of a significant or serious collision as they drove along the Western Ring Roads at what was essentially an insane speed. There was weaving, changing lanes, cutting in and out of traffic and this — all these things are the hallmarks of the competitive driving that took place.
This speed led to the blow out of the tyre, the loss of control of the vehicle and ultimately the deaths of Harley Churchill and Ivana Clonaridis.
The prosecution case is that the speed was a significant contributing factor in the tyre blow out that the response of Harley Churchill was effectively automatically instinctive. That once that car went into a yaw at 182 kilometres an hour he really had no chance of recovering, recovering the control of the vehicle and it was out of control at that point and of course, the impact forces generated at that speed meant that once it hit the barrier and it went through the barrier, the barrier designed to withstand a vehicle travelling at the speed limit, once it hit the barrier at 163, the occupants of that vehicle — Harley Churchill and Ivana Clonaridis, really had no chance to survive that collision from there.
The circumstances of this collision cannot be disconnected from the speed which was part and parcel and perhaps the most critical part of the competitive driving.
The prosecution case is that the accused by his conduct on the road encouraged Harley Churchill to drive in the way that he did and that his driving was an integral part of what happened on the Western Ring Road and I’ll come back to these concepts but it was these things that caused the collision and the deaths of Mr Churchill and Ms Clonaridis.
Grounds of appeal against conviction
With respect to conviction, the applicant relied on eight grounds of appeal as follows:[10]
[10]The following ground was abandoned:
5 The trial judge erred when directing the jury on incriminating conduct that in assessing whether the accused was ‘aware of having driven in a reprehensible fashion alleged by the prosecution, which is said to have caused the deaths, which is the basis of the charges’ and ‘if the only reasonable explanation for making a false statement, is that he believed that he had, in effect, driven in the reprehensible fashion, either culpably or dangerously, which is said to have caused the deaths’.
1    A substantial miscarriage of justice occurred because of the failure of trial counsel to object to the admissibility of irrelevant and prejudicial evidence that: (i) the applicant had attended the Northern Skids event and (ii) evidence that the applicant had allegedly ‘revved’ his engine at the Pascoe Vale Road entrance to the Western Ring Road.
2A A substantial miscarriage of justice occurred because the jury was given no direction as to how to treat the evidence of: (i) the attendance of the applicant at the Northern Skids events; (ii) the alleged ‘revving’ of the applicant’s engine at the Pascoe Vale Road entrance to the Western Ring Road and (iii) the alleged ‘baiting’ of the purple Commodore on the Western Ring Road in circumstances where there was a risk that the jury may have engaged in tendency reasoning.
2B A substantial miscarriage of justice occurred by the use of the earlier incidents of: (i) the ‘revving’ of the applicant’s engine at the Pascoe Vale Road entrance to the Western Ring Road and (ii) the alleged ‘baiting’ of the purple Commodore in the prosecutor’s closing address to attempt to establish that the applicant’s driving was grossly negligent when no tendency notice had been filed and leave had not been sought to use those discrete incidents on a tendency basis.
3A The trial judge erred by diluting the separate consideration direction by directing the jury that ‘if you [the jury] were to find that [the applicant] was directly liable for the death of Ms Clonaridis, it would be somehow be very unusual if you [the jury] did not find that he was also directly liable for the death of Mr Churchill. So be very careful to be consistent’.
3B The trial judge erred by directing the jury to ‘be very careful to be consistent’ in reaching their verdict and thereby impermissibly traversed the role of the jury as the judges of the facts.
4    The trial judge erred in directing the jury on the standard of proof by emphasising the word ‘reasonable’ where the phrase ‘beyond reasonable doubt’ is a composite phrase that should be not be further defined and where the jury had not sought further clarification or direction as to the meaning of ‘beyond reasonable doubt’.
6    The trial judge erred by directing the jury that it was proper for the jury to use their individual ‘life experience’ of using the road as a driver, passenger or pedestrian in determining whether a reasonable person in the [applicant’s] position would have realised that his driving created a high risk that death or serious injury would follow.
7    The verdicts on the charges of culpable driving are unsafe and unsatisfactory.
Particulars:
The conduct of [Harley Churchill] was the substantial and operating cause of the collision and the deaths of [Ivana Clonaridis] and [Harley Churchill].

As will appear, I am of the view that grounds 1, 2A(i), 3, 4 and 7 are made out.
It is convenient first to consider ground 7, which contends that the verdicts are unsafe and unsatisfactory.
Unsafe and unsatisfactory verdict: Ground 7
Ground 7 revolves around the issue of causation.
In my view, the conviction on charge 2 is indeed unsafe and unsatisfactory; but, as I will explain, predominantly not for the reasons advanced by the applicant’s counsel. When it is properly analysed, in my view it is plain that the prosecution case on charge 2 was founded on the applicant’s encouragement of, or agreement in, Harley Churchill’s driving. But since Mr Churchill could not be liable for culpable driving causing his own death, it simply was not open to the jury to convict the applicant on the case as advanced by the prosecution.
Culpable driving causing death is an offence created by statute. Section 318(1) of the Crimes Act 1958 provides that any person ‘who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence’. By s 318(2)(b), a person drives a motor vehicle culpably if he drives the motor vehicle negligently (‘that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case’).

At the risk of repetition, charge 1 alleged that the applicant ‘by the culpable driving of a motor vehicle caused the death of Ivana Clonaridis in that [he] drove the motor vehicle negligently’; and charge 2 alleged that the applicant ‘by the culpable driving of a motor vehicle caused the death of Harley Churchill in that [he] drove the motor vehicle negligently’.

Once more at the risk of repetition, the prosecution’s alternative case on charge 1 — causing the death of Ivana Clonaridis — was that the applicant was ‘complicit’ in Harley Churchill’s grossly negligent driving, in that he encouraged Harley Churchill to drive in a grossly negligent or a dangerous way.[11]
[11]See [41] above.
Common law concepts of complicity — such as aiding and abetting and acting in concert — have been abolished for the purposes of Victorian law.[12] All forms of criminal complicity are now creatures of statute. Relevantly, s 324(1) of the Crimes Act 1958 provides that ‘if an offence (whether indictable or summary) is committed, a person who is involved in the commission of the offence is taken to have committed the offence’. And 323(1) provides:[13]
[12]Section 324C of the Crimes Act 1958 is in the following terms:
324C Abolition of certain aspects of complicity at common law
(1) The law of complicity at common law in relation to aiding, abetting, counselling or procuring the commission of an offence is abolished.
(2) The doctrines at common law of acting in concert, joint criminal enterprise and common purpose (including extended common purpose) are abolished.
[13]Emphasis added.
323 Interpretation
(1) For the purposes of this Subdivision, a person is involved in the commission of an offence if the person—
(a) intentionally assists, encourages or directs the commission of the offence; or
(b) intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence; or
(c) enters into an agreement, arrangement or understanding with another person to commit the offence; or
(d) enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence.
On the prosecution’s alternative case, therefore, the applicant might be taken to have committed the offence of culpable driving on charge 1, if he encouraged Harley Churchill to drive his motor vehicle negligently, and it was Harley Churchill’s grossly negligent driving which caused the death of Ivana Clonaridis.
Conceptually, however, since the offence under s 318(1) requires the relevant culpable driving to cause the death of another, given that Harley Churchill could not commit the offence of culpable driving by causing his own death, the applicant could not be criminally liable for Mr Churchill’s death by virtue of ss 323 and 324 of the Crimes Act 1958. There simply was no offence committed by Mr Churchill in causing his own death which the applicant could encourage.[14]
[14]See, in a different context, IL v The Queen (2017) 262 CLR 268. In that case, the applicant had been engaged in a joint criminal enterprise with an accomplice to manufacture methylamphetamine. The accomplice was killed in a fire caused by lighting a gas ring burner in an inadequately ventilated room. (It was conceded by the prosecution that it could not prove that it was not the deceased who lit the burner.) The applicant was charged with murder under s 18(1)(a) of the Crimes Act 1900 (NSW), and, alternatively, manslaughter under s 18(1)(b). Keifel CJ, Keane and Edelman JJ held, however, that s 18 requires that one person kill another person, and is not engaged if a deceased accomplice kills himself or herself (see 272 [1]). Further, Bell and Nettle JJ observed that liability from joint criminal enterprise is limited to participation in acts forming the actus reus of an offence. Since self-murder is not a crime, the deceased’s act in lighting the burner was not the actus reus of a crime (see 302–4 [79]–[80]). See also R v Demirian [1989] VR 97.
For similar reasons, the applicant could not be fixed with criminal liability on the basis that he entered into an agreement, arrangement or understanding with Harley Churchill to commit the offence of culpable driving where the death caused was Mr Churchill’s. Nor could the applicant be fixed with criminal liability on the basis that he entered into an agreement, arrangement or understanding with Harley Churchill to commit another offence where he was aware that it was probable that the offence charged would be committed if the death caused was Mr Churchill’s.
Notwithstanding that it was impossible for the applicant to enter into an agreement, arrangement or understanding with Harley Churchill to commit the offence of culpable driving causing death (or to commit another offence aware that it was probable that the offence of culpable driving causing death would be committed), where the death caused was Mr Churchill’s, in my view it is undeniable that the prosecution’s case of ‘direct liability’ (so-called) on charge 2 was based on Mr Churchill’s and the applicant’s mutual encouragement, or unspoken agreement, arrangement or understanding, that they would race. Thus, the prosecutor told the jury that[15]
there’s not two sets of facts here, there’s one and it’s put in this way that they both were grossly negligent in their driving. That Mr Churchill wouldn’t have been driving like this unless the accused had driven in the way that he did and did the things that he did.
It’s a competition, it takes two people to have the competition and that really on the road they were like a unit, pushing each other, encouraging each other to drive in the way that they drove and again, the factual dispute comes down to the same thing; that the prosecution submission to you is that it’s very clear that they were racing or competing.
[15]See [41] above.
Furthermore, in her charge, the trial judge endorsed the notion that the applicant’s so-called ‘direct liability’ might arise from having been involved in a ‘race’, ‘competitive driving’, a ‘competition’ or a ‘challenge’, notwithstanding that each of those concepts are underpinned by, or assume, unspoken agreement between the applicant and Harley Churchill, or encouragement by each of the other, to drive at high speed. Thus, among others, the trial judge gave the following directions:
So, the prosecution rely upon that earlier baiting conduct of [the applicant], particularly relating to the purple Commodore. The prosecution says that this conduct renders it more likely that [the applicant] did, in fact, engage in a race with Mr Churchill because he’s looking for a race. That is the prosecution case. It then relies upon the various acts described by the various witnesses, namely the ute and the silver Ford travelling at speed passing other vehicles, passing each other, being side by side, weaving in and out of traffic and some evidence of tailing each other and so on. It is a multitude of circumstances the prosecution are relying upon: the speed, the swerving in and out of lanes, overtaking, the two cars tailing each other. All of which the prosecution say constitute a race or competitive driving between Mr Churchill and [the applicant] and on that basis, you can find [the applicant] is directly responsible for the deaths of Ms Clonaridis, Charge 1, and Mr Churchill, Charge 2.
Members of the jury, you must consider all of the circumstances of the driving and the roadway on this night. Those circumstances would include such things as whether or not the accused, by his conduct, did engage in a challenge with Mr Churchill to drive or race competitively. …

And after dealing with the issue of a break in the ‘causal link’, the judge said:

So you apply those same elements of law that I have just given to you in relation to both Charge 1 and Charge 2 in deciding whether the accused is directly liable for causing the death because his driving is inextricably connected with Mr Churchill’s driving because they were racing or in some form of competition.

Plainly, the present is not like those cases exemplified by George.[16] In George, the applicant’s and another vehicle had been travelling very close to each other on a freeway at high speed in an apparent ‘pursuit’, when the front of the applicant’s vehicle struck the rear of the other vehicle, causing the other to lose control, run off the road and collide with trees, killing both the driver of that vehicle and his passenger. In this case, unlike George, it is not suggested either that the applicant drove his vehicle so as to collide with, or risk collision with, Mr Churchill’s vehicle; or that he otherwise performed a manoeuvre which created some kind of emergency which Mr Churchill was attempting to avoid when he lost control. The applicant’s contribution to the cause of Mr Churchill’s (and Ms Clonaridis’) death — the high speed of Mr Churchill’s vehicle, and the resulting tyre blowout and loss of control — was his encouragement to, or agreement with, Mr Churchill to race, part of which involved him driving his own vehicle at high speed.
[16]George v The Queen (2017) 80 MVR 436.
Harley Churchill’s driving was, in my view, the immediate and proximate cause of his death. The applicant’s driving was not. His counsel conceded in his final address that the applicant’s driving was ‘appalling’. But his contribution to the cause of Mr Churchill’s death can only have been his high speed driving in competition with Mr Churchill. Nothing else he did caused Mr Churchill’s tyre to blow out, resulting almost instantaneously in the loss of control and collision. The competition between the two arose from mutual encouragement (or from an unspoken agreement, arrangement or understanding).
In my opinion, the conclusion that the prosecution’s case of ‘direct liability’ was in truth one of complicity — based on encouragement (or an agreement) to race competitively ‘like a unit’ — may be tested this way. As I have said, on charge 2, it is plain to me that the respondent’s case on causation was that the applicant contributed to the cause of Mr Churchill’s death solely by driving at high speed in tandem with him (in a race). There was nothing else that the applicant did that was said to have been causative of Mr Churchill’s death. Thus, as I have mentioned, it was not alleged that the applicant drove his vehicle so as to collide with, or risk collision with, Mr Churchill’s vehicle, or that he performed any kind of manoeuvre which caused Mr Churchill’s vehicle to swerve or deviate from its course. Speed was said to be the applicant’s sole contribution to the cause of death. But had, by sheer coincidence, the applicant been driving at high speed on the Ring Road at the same time that Mr Churchill independently was driving at high speed in the same vicinity, self-evidently the applicant could not have been fixed with criminal liability as a result of Mr Churchill’s tyre blowing out (having become overheated due to speed) and the consequential loss of control over the vehicle. Quite clearly, the prosecution’s case was that the applicant’s liability arose because he was involved in a race, which must have arisen from mutual encouragement or an agreement.
For these reasons, the conviction on charge 2 is unsafe and unsatisfactory, and cannot be permitted to stand. The conviction is based on the false premise that the applicant’s agreement or encouragement to race could somehow found ‘direct liability’ on charge 2, when in truth his encouragement or agreement to race could only be a foundation for criminal liability based on some form of complicity. Since Harley Churchill was incapable of committing the offence of culpable driving causing his own death, there was no offence committed which the applicant could encourage or agree to commit.
In the circumstances, a judgment of acquittal must be entered on charge 2.[17]
[17]Criminal Procedure Act 2009, s 277(1)(b).
That leaves for consideration the conviction on charge 1, which, although not unsafe and unsatisfactory, I consider must also be set aside (albeit that my reasons for so concluding may perhaps again depart from the way in which the applicant’s case was put).
With respect to both convictions, counsel for the applicant submitted that the evidence at trial could not establish that the applicant’s driving — as opposed to Harley Churchill’s driving — was a substantial and operative cause of the two deaths. Eight interrelated reasons for that contention were advanced:
· first, Harley Churchill had participated in an illegal street car event, the Northern Skids, in the hours before the collision;

· secondly, prior to attending the Northern Skids, Mr Churchill had replaced the rear tyres on his car with smaller rims and tyres so that he could do burnouts;[18]
[18]See [28] and [29] above.

· thirdly, that replacement of the rear tyres on smaller rims affected the ‘stability’ of his motor vehicle;[19]
[19]See [32] above.

· fourthly, Mr Churchill had attempted to do burnouts at the Northern Skids;[20]
[20]See [23] above.

· fifthly, the evidence revealed that, prior to any interaction with the applicant, Mr Churchill had engaged in dangerous and reckless driving on the Ring Road, including driving at a very high speed and tailgating other drivers;[21]
[21]See [14], [15] and [23] above.

· sixthly, the driver’s side rear tyre of Mr Churchill’s car was underinflated;[22]

· seventhly, the use of an underinflated tyre made the blowout — and resulting collision — inevitable given the manner of his driving (which included speeding and changing lanes), which was likely to ‘heat’ the underinflated tyres and increase the possibility of a blowout;[23] and

· eighthly, at the time of the collision the illegal drug methylamphetamine was present in Mr Churchill’s system, the expert evidence being that a driver who drives with such a drug present in their system is between two and nine times as likely to be involved in a collision as a person without that drug in their system.[24]

[22]See [31] above.

[23]See [31] above.

[24]See [27] above.

Counsel for the respondent submitted that, while it might be conceded that the driving of Harley Churchill was a substantial and operating cause of his own, and Ivana Clonaridis’, deaths, that did not preclude a finding that the applicant’s driving was also a substantial and operating cause of the two deaths. The applicant’s grossly negligent driving might be one cause of the deaths amongst others. So long as it was a substantial and operative cause, then — notwithstanding that there may have been other causes — the jury were entitled to convict. The jury, the respondent submitted, were not obliged on the evidence to accept the defence case that the driving of Harley Churchill was the sole operating cause of the deaths and thereby acquit the applicant. Counsel for the respondent submitted that the evidence supported the argument that the applicant engaged in competitive driving with Mr Churchill, and that it was the conduct of the applicant in so doing that caused the collision and the resulting deaths. Finally, the respondent submitted that the jury were given careful directions on causation, assisted by written checklists and aids.
In Feketa,[25] a relatively early case concerned with the offence created by s 318 of the Crimes Act 1958,[26] when construing the section — and in particular, the meaning of the word ‘causes’ in the expression ‘by the culpable driving of a motor car causes the death of another person’ — the Court observed that ‘the word “causes” must be construed in its legal sense, that is as denoting a causa causans and not merely a causa sine qua non’. [27] In other words, the culpable driving must be the immediate cause (causa causans) — the last link in the chain of causation — as distinct from some preceding link (causa sine qua non) but for which the immediate cause (causa causans) would not have become operative.[28]
[25]R v Feketa (1982) 10 A Crim R 287 (Young CJ, Murray and Marks JJ) (‘Feketa’). See also R v Ciantar (2006) 16 VR 26, 34–6 [25] (Warren CJ, Chernov, Nettle, Neave and Redlich JJA).
[26]Section 318 was introduced by the Crimes (Driving Offences) Act 1967, s 3. See Bouch v The Queen (2017) 270 A Crim R 478, 507–9 [114] (‘Bouch’).
[27]Feketa, 290.
[28]Osborn’s Concise Law Dictionary (12^th ed, 2013) Sweet & Maxwell; Jowitt’s Dictionary of English Law (3^rd ed, 2010) Sweet & Maxwell.

Many of the principal authorities bearing on causation were more recently discussed in Robb[29] — a case of unlawful and dangerous act manslaughter — including Pagett;[30] Evans (No 2);[31] Royall;[32] Rudebeck;[33] Moffatt;[34] and Dunkley-Price,[35] and a number of other cases and materials were noted.[36]
[29]Robb v The Queen [2016] VSCA 125 (Ashley, Osborn and Priest JJA) (‘Robb’).
[30]R v Pagett (1983) 76 Cr App R 279 (‘Pagett’).
[31]R v Evans & Gardiner (No 2) [1976] VR 523 (‘Evans (No 2)’).
[32]Royall v The Queen (1991) 172 CLR 378 (‘Royall’).
[33]R v Rudebeck [1999] VSCA 155 (‘Rudebeck’).
[34]R v Moffatt (2000) 112 A Crim R 201.
[35]Dunkley-Price v The Queen (2015) 73 MVR 450 (‘Dunkley-Price’).
[36]Including R v Smith [1959] 2 QB 35 (‘Smith’); R v Hallett [1969] SASR 141 (‘Hallet’); R v Puckeridge (1999) 74 ALJR 373, 168 ALR 4; Krakouer v Western Australia (2006) 161 A Crim R 347; R v Lam (2008) 185 A Crim R 453; R v Japaljarri (2002) 134 A Crim R 261; R v Lee (2005) 12 VR 249; and S Odgers and S Yeo, Semantics and the Threshold Test for Imputable Causation, (2000) 24 Crim LJ 73.

As was observed in Robb,[37] Robert Goff LJ stated in Pagett that ‘it is usually enough to direct [the jury] simply that in law the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result’.[38] Moreover, the proper test to be applied for the purposes of determining causation, has been formulated in various ways.[39] In Evans (No 2) it was held that the test to be applied in determining whether an act caused death is whether, in spite of the intervening act, it is still an operating and substantial cause of death.[40]
[37]Robb, [52].
[38]Pagett, 288. The facts of Pagett were unusual. One morning, on the first floor of a block of flats where he lived, the appellant, who was armed with a shotgun, shot at police officers who were trying to arrest him. The appellant had with him a 16-year-old female, and, against her will, used her body to shield him from any retaliation by the officers. In apparent self-defence, officers did, however, return the appellant’s fire. As a result the female was killed. Although he was charged with murder, the jury at his trial convicted the appellant of manslaughter.
[39]Robb, [55].
[40]Evans (No 2), 529. See also Rudebeck, [66]; Smith, 42–3; Hallett, 150.

In Royall, a case of murder in which the deceased died after jumping out a window to avoid an attack, Brennan J expressed the view that the relevant act (or omission) of the accused ‘must contribute significantly to the death of the victim’;[41] Deane and Dawson JJ held that it would be sufficient if the accused’s conduct ‘is a substantial and significant cause of death’;[42] Toohey and Gaudron JJ stated the inquiry to be ‘whether the act of the accused substantially contributed to death’;[43] and McHugh J expressed the view that the relevant act must be an ‘operating cause and a substantial cause’.[44]
[41]Royall, 398. See also Swan v The Queen [2020] HCA 11, [24].
[42]Royall, 411.
[43]Ibid 423.
[44]Ibid 444.

Specifically with respect to the offence of culpable driving causing death, in Rudebeck,[45] Ormiston JA expressed the opinion that the act said to found the offence must be shown to be ‘a substantial and operating cause of the victim’s death’, although ‘death need not flow solely from the accused’s acts’.
[45]Rudebeck, [66].

In Dunkley-Price, also a case of culpable driving, Kaye JA (with whom Redlich JA and Ginnane AJA agreed) provided a summary of the applicable principles. Briefly, the facts of that case were that the applicant stopped his vehicle a short distance before an off-ramp in the left hand running lane of the Western Highway, so that he could use his telephone. The deceased was driving her car immediately behind the applicant’s vehicle in the left hand lane of the highway approaching the off-ramp. As she approached the off-ramp exit, the deceased was forced to bring her vehicle to a stop behind the applicant’s vehicle. She was unable to overtake because of other vehicles travelling in the same direction in the right hand running lane. Shortly after the deceased stopped her vehicle, another driver travelling in the left hand running lane, collided with the rear of her vehicle, causing it to collide with the rear of the applicant’s vehicle. As a result of the force of the collision, the deceased suffered injuries from which she died (and her passenger suffered serious injuries). In essence, the prosecution case was that the applicant’s conduct in stopping his vehicle in the left hand running lane of the Western Highway, when other traffic was travelling along it at the speed limit, was grossly negligent, and was a substantial and operating cause of the injuries and death.

Kaye JA summarised the principles as follows:[46]

The question, whether the driving of the applicant caused the death of [the deceased] and the injuries sustained by [her passenger], was a question of fact for the jury, and not a question of law for the judge.[47] The question is to be approached by the jury as an exercise of common sense, and not by resort to philosophical or scientific theories.[48] It is recognised that there may be more than one cause of death. It is not necessary that the driving or conduct of the applicant be the sole or even the principal cause of the collision.[49] Ordinarily, the test to be applied by the jury is whether it is satisfied beyond reasonable doubt that the driving or conduct of the applicant was a substantial and operative cause of the accident.[50]
The principles, relating to the law of causation in criminal cases involving a homicide, were conveniently stated by Brooking JA in R v Franklin in the following terms:
It is clear that for the purposes of the law of homicide there may be more than one cause of death and that criminal liability may attach to an actor even though the act was not the sole or even the ‘main’ or ‘most substantial’ cause of death. On the other hand, it is also clear that criminal liability will not attach unless the act was a ‘significant’ or ‘substantial’ cause of death. … The issue of the cause of death is of course one of fact for the jury … Putting to one side pure questions of fact (for example, which of two bullets struck the body, or whether death was due to trauma or some unrelated cause), there remains a wide variety of situations in which juries will need assistance from the judge when they come to consider what caused or contributed to the death. … The possible factual situations are infinite and even the categories to which they may be sought to be assigned are numerous.
One such category is that of the infliction of injuries by two or more assailants, acting independently and at substantially the same time. In such a case, where there is no complicating factor which may be put forward as ‘breaking the chain of causation’, it is enough for the jury to inquire whether the attack of the accused made a substantial contribution to the death. … .[51]
In cases in which the question arises whether an action of the victim or the third party, subsequent to the action of the accused, has the effect of breaking the chain of causation between the accused’s action and the death or injury of the victim, different formulations of the applicable principles have been proffered in the cases, often depending on the specific factual issues that gave rise to that question. However, in essence, as Brooking JA stated in Franklin, the test, in such cases, remains the same. The question is whether, notwithstanding the subsequent action of the victim or the third party, the action of the accused remains a substantial and operative cause of the victim’s death or injury.[52]

[46]Dunkley-Price, 458–60, [38]–[41] (citations as in reported version).

[47]R v Evans & Gardiner (No 2) [1976] VR 523, 527 (Young CJ, Gillard and Anderson JJ); R v Heron [(2003) 39 MVR 117, 122] [22]–[23] (Buchanan JA).

[48]Campbell v The Queen [1981] WAR 286, 290 (Burt CJ); Royall v R (1991) 172 CLR 378, 387 (Mason CJ), 411–12 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ).

[49]Royall v R (1991) 172 CLR 378, 398 (Brennan J), 425 (Toohey and Gaudron JJ).

[50]R v Evans & Gardiner [1976] VR 523, 528–9; R v Rudebeck [1999] VSCA 155, [66] (Ormiston JA); R v Heron (2003) 39 MVR 117, [20] (Buchanan JA); Guthridge v R (2010) 27 VR 452, 465 [114]‑[115] (Neave and Redlich JJA, Coghlan AJA); R v Lee (2005) 12 VR 249, 250 [7] (Coldrey J); see also Royall v R (1991) 172 CLR 378, 411 (Deane and Dawson JJ); but cf 449, 451 (McHugh J); R v Moffatt [(2000) 112 A Crim R 201, 213] [71] (Wood CJ at CL); Reynolds v R [2015] NSWCCA 29, [40]–[44] (Hall J).

[51](2001) 3 VR 9, 28-29 [54]–[55]; see also R v Lam (2008) 185 A Crim R 453, 467–9 [61]–[64]; R v Withers [2009] VSCA 306, [135]–[136]; Aidid v R (2010) 25 VR 593, 602 [61] (Ashley JA).

[52]See for example R v Lam (2005) 15 VR 574, 578–9 [13]–[16], 581 [23] (Redlich J); R v Lam (2008) 185 A Crim R 453, 467 [58]–[59] (Buchanan, Vincent and Kellam JJA); McAuliffe v R (1995) 183 CLR 108, 118–19 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ).

In the present case, neither the prosecution nor the defence disputed that Harley Churchill’s driving was a substantial and operative cause of Ivana Clonaridis’ (and his own) death. As the authorities recognise, however, there may be more than one cause of death. Moreover, it is not necessary that the relevant driving be the sole — or, indeed, the principal — cause of death, so long as it is a substantial and operative cause.

I regard it as being beyond argument that Harley Churchill’s grossly negligent driving was the most immediate and proximate cause of Ivana Clonaridis’ death. In my opinion, the evidence was capable of establishing, first, at the time of the collision leading to Ms Clonaridis’ death, Mr Churchill was driving his vehicle at very high speed; secondly, that the underinflated rear driver’s side tyre of Mr Churchill’s vehicle blew out because of the heat generated by the high speed — not less than 182 kph — at which the vehicle was travelling; and, thirdly, that Mr Churchill was incapable of maintaining control of the vehicle once the tyre blew out due to the high speed at which his vehicle was being driven.[53]
[53]The evidence also suggests that, had Mr Churchill’s vehicle been travelling within the speed limit when it struck the steel barrier, it might not have plummeted into the valley below.

Looked at in this way, I consider that a properly instructed jury might conclude to the criminal standard that the applicant’s driving was a substantial and operative cause of Ms Clonaridis’ death. It would be open to a properly instructed jury to conclude that the applicant was complicit in Harley Churchill’s grossly negligent driving, that grossly negligent driving causing Ms Clonaridis’ death.

That being so, it might ordinarily be determined — all other things being equal — that the conviction on charge 1 should be permitted to stand. In light of the judge’s ‘separate consideration’ directions in the charge, however, it is clear that the conviction of the applicant on the first charge must also be set aside, albeit that, rather than a judgment of acquittal, a new trial should be ordered on that charge.[54]
[54]Criminal Procedure Act 2009, s 277(1)(a).

It is thus convenient to turn next to the relevant directions, which are the subject of ground 3.

Separate consideration directions: Ground 3

To properly appreciate the gravamen of the complaints made under cover of ground 3, it is necessary to appreciate — as has been several times repeated — that the prosecution relied on supposed ‘direct liability’ as the foundation of charges 1 and 2; and, in the alternative, relied on the applicant’s complicity with Mr Churchill as the foundation of charge 1.[55]
[55]On both charge 1 and charge 2 the judge left the statutory alternative of dangerous driving causing death to the jury. See Crimes Act 1958, ss 319 and 422A(1).

For present purposes, the fate of the conviction on charge 1 lies with the trial judge’s ‘separate consideration’ directions in the charge. In my opinion, the judge’s directions were an invitation to conclude that a verdict of guilty on one charge based on ‘direct liability’ dictated that a verdict of guilty should also be returned on the other charge if based on direct liability. Hence, the judge gave the following directions:

Both charges are put on the one indictment, which is the formal piece of paper which sets out the charges, because it would be very inconvenient and expensive to hold a separate trial on each charge when there is identical evidence common to both of the charges. So, although both of the charges are being tried together, the [applicant] and the prosecution are entitled to a separate consideration by you of each offence with which [the applicant] has been charged.
It would be wrong of you to reason that simply because you find the accused guilty on one charge, therefore, you must find him guilty on the other charge; or, on the other hand, because you find him not guilty on one charge, therefore, you must find him not guilty on the other charge. You must not reason that way, although obviously, if you were to find that [the applicant] was directly liable for the death of Ms Clonaridis, it would be somehow very unusual if you did not find that he was also directly liable for the death of Mr Churchill. So, be very careful to be consistent. And, as I said, it is entirely a matter for you as to whether you need to go to the alternative way in which the prosecution has put the charge relating to Ms Clonaridis’ death. I will be elaborating upon that tomorrow.
So, you must look at each of the charges separately in relation to the evidence which relates to it and the law that I will give you and ask yourself this question: ‘After considering the evidence, am I satisfied that the prosecution has proved all of the elements of a particular offence beyond reasonable doubt?’ As I have said, if your answer is yes, you must convict the accused; that is bring in a verdict of guilty on that charge. If you answer is no then you must acquit him, that is, bring in a verdict of not guilty.

I note that, in a passage immediately prior to that which includes the impugned directions, the judge had instructed the jury as follows:

Obviously, the factual basis upon which the prosecution rely in support of Charge 1 and Charge 2 is the same. However, you have been told that there is a potential second, different way of finding guilt proven on Charge 1, which is the charge relating to the death of Mr Churchill’s passenger, Ms Clonaridis. You may not find it necessary to go to that alternative basis if you are satisfied of the direct liability of [the applicant] for both deaths as distinct from simply encouraging him, on the alternative basis — encouraging Mr Churchill, on the alternative basis. However, that is entirely a matter for you, members of the jury.

Counsel for the applicant in this Court submitted: first, that the direction impermissibly required the jury to engage in a particular sequence of deliberation; secondly, that by ‘linking’ the charges in the indictment in this manner meant that the separate consideration direction was undermined; thirdly, that by exhorting the jury to be ‘consistent’ between charges the judge imposed an impermissible ‘check’ upon their deliberations which pivoted on the consistency of their verdicts; fourthly, the effect of the directions was to deprive the applicant of an uncompromised jury verdict on both charges; and fifthly, although in the circumstances of this case different verdicts were well open to a properly instructed jury, the directions foreclosed that possibility.

The respondent’s counsel acknowledged that the trial was run on the basis that the prosecution sought to establish the guilt of the applicant on the first charge in one of two possible ways: first, that the applicant was directly responsible for the death of Ivana Clonaridis through his own grossly negligent driving being a substantial and operative cause of her death (direct liability); and, secondly — and alternatively — the prosecution argued that the jury could convict the applicant of the first charge on the basis that he was complicit in Harley Churchill’s grossly negligent driving, Mr Churchill’s driving being a substantial and operative cause of Ms Clonaridis’ death. Counsel for the respondent also acknowledged that the same two pathways were not open in relation to count 2, which dealt with the death of the blue ute’s driver, Harley Churchill. Since Mr Churchill could not be guilty of causing his own death, the applicant could not be complicit in that outcome.

Counsel for the respondent further submitted that the jury were instructed that they could only find the applicant guilty on the second count on a direct liability basis. It was submitted in writing that the impugned ‘comment can be understood not as [a] direction to the jury to return a particular verdict or to approach the process of deliberation in any particular way, but rather to assist in the jury’s understanding of the separate ways in which the case was put’. Counsel submitted that this ‘was not a direction which called for consistency of verdicts, rather one which cautioned against inconsistency in the legal basis for whichever verdict the jury ultimately returned’.

I should note that, after the jury had been deliberating for more than a day, they asked the following question:[56]
[56]The jury retired at a little before 11.30 am on Wednesday, 7 February 2018, and the judge dealt with the question at a little after 11.30 am on Friday, 9 February 2018 (the jury in the meantime had been administered a ‘separation oath’ and had been permitted to separate at the end of each day).

Can we have clarity around how using the alternative basis for considering Charge 1 affects Charge 2?

In answer to the question, the judge directed the jury that

if the only way in which you were able to conclude that a verdict of guilty was the proper verdict on Charge 1 was by using the alternative basis then your verdict on Charge 2 would be not guilty. And that’s because if you couldn’t be satisfied of direct liability on Charge 1, you couldn’t be satisfied of direct liability on Charge 2.
…
If the only way that you concluded that you could find [the applicant] guilty on Charge 1, was by the pathway of the alternative basis, that is derivative liability, encouraging Mr Churchill, who was the principal offender, then that would mean that you verdict on Charge 2 would be not guilty. The reason for that is that if the only way you could find [the applicant] guilty on Charge 1 was on the alternative basis that means you can’t be satisfied of the direct liability and the direct liability is the only way you could find a guilty verdict on Charge 2. So if you’re not satisfied of direct liability on Charge 1, you can’t be satisfied of direct liability on Charge 2; it would be inconsistent reasoning. Does that make sense?

In my opinion, the challenged directions — I do not accept that the jury would have viewed them merely as a comment — were, at best, confusing, and at worst, had the potential seriously to mislead the jury and significantly to undercut the essential separate trial direction. Both to exhort the jury to be ‘very careful to be consistent’, and to tell them that if they found the applicant directly liable for the death of Ms Clonaridis ‘it would be somehow very unusual if [they] did not find that he was also directly liable for the death of Mr Churchill’, were apt to suggest that the verdict found on one charge would — being very careful to be consistent —dictate the same verdict on the other charge. There is a real risk that the jury might have been misled into thinking that a finding of guilt on charge 2 required a verdict of guilty on the first charge (and vice versa). Moreover, in my view, the otherwise unexceptionable directions in the midst of which the impugned directions were embedded, would not have averted the risk that the jury might have thought that to be ‘consistent’ they ought to find the same verdict on both charges (if their pathway to verdict was ‘direct liability’).[57]
[57]See R v Robertson [1998] 4 VR 30, 39–40.

For these reasons, although there is evidence upon which a properly instructed jury could find the first charge proved, the conviction on that charge must be set aside and a new trial ordered.

Attendance at the Northern Skids: Grounds 1(i) and 2A(i)

Counsel for the applicant in the first trial — different counsel appeared in the second — objected to any evidence of the applicant’s attendance at the Northern Skids prior to the collision. He submitted that the evidence was ‘not relevant to material facts’, and, since the evidence put the applicant at the scene of ‘illegal activity’, it was prejudicial in the same manner as evidence of prior convictions. Moreover, it invited a form of propensity reasoning.

The prosecutor submitted that the evidence went to context, and had a ‘narrative purpose’. He argued that there was a ‘nexus’ between the applicant’s statement to police that he experienced an ‘adrenaline rush’ whilst a spectator at the event and his later driving, this being relevant to causation. The prosecutor also submitted that, since part of the defence case would be to elicit that Harley Churchill had ‘done a burnout at the Skids’, there would be

a void in the evidence if there was no evidence about what the [applicant] had done, or was up to during the course of the evening. It’s not suggested he participated in the Skids, but there would be a massive [gap] in the narrative of the evening, if that’s not before the jury. Particularly in circumstances where the defence will be putting that Mr Churchill was at the Skids, and that that’s relevant to Mr Churchill’s conduct on the evening.

The trial judge appears to have thought that the evidence was probative of the applicant’s state of mind (and therefore relevant), and that it would be ‘very artificial’ to exclude it. Her Honour ruled as follows:
Well, in the circumstances, I consider that – particularly given the [applicant’s] own description of his state of having had an adrenalin rush and his protracted period of going, following cars and the activities that he describes in the record of interview, I consider that the attendance of the accused at the ‘Skids’ should not be excised from the evidence to go before the jury because that would be very artificial.
It would mean that his own description of his state to the police on this night is then effectively having to be excised and that is – it’s not – it’s clearly relevant and it’s clearly probative and in my view, directions can be given about the way in which it is to be used as to the state of mind that he describes, the feelings that he’s having on this night, but not to reason that he is therefore the type of person to behave in this way or for any adverse inference to be drawn because he’s gone and watched the skids.

Pausing there, two important observations may be made. First, from the outset of her charge, the judge emphasised the requirement that, in order to convict the applicant, the jury must be satisfied of his guilt beyond reasonable doubt. Secondly, in describing to the jury the principles relating to inferential reasoning in a criminal trial, her Honour correctly made it clear that in order to convict the applicant, it must be satisfied that the only reasonable inference, available on the evidence, was the guilty inference, and that the jury could not reach that conclusion if there was another reasonable hypothesis consistent with innocence.
Those two points provide an important context to the impugned passage of her Honour’s directions which are the subject of ground 4. In my view, of themselves, they were sufficient to preclude any possibility that the jury might have derived an erroneous perception of the standard of satisfaction which it must reach before convicting the applicant of the charges before it. The repeated emphasis by the judge, of the principle that the guilt of the applicant must be proven beyond reasonable doubt, her Honour’s description of the standard of proof as the highest standard known to the law, and her amplification of it in her directions on inferences, could only have imprinted firmly in the minds of the jury the correct basis on which it must determine the charges against the applicant. In that context, I do not consider that the impugned directions would have derogated or detracted from the jury’s understanding of the correct basis of the applicable standard of proof.
That conclusion is reinforced by an examination of the balance of the judge’s charge.
As I stated, in defining the elements of charges of culpable driving, and of the alternative charge of dangerous driving causing death, and in describing the alternative basis for considering charge 1 (that the accused was involved in the commission of the offence by encouraging the commission of the offence by Churchill), the judge provided to the jury four aide memoires. Each of those documents commenced by stating that in order for the accused to be guilty of the particular offence, the prosecution must prove ‘beyond reasonable doubt’ the elements that were set out in the aide memoire. The explanatory notes, attached to each of those aides memoire, repeated the formula that the prosecution must prove the particular element ‘beyond reasonable doubt’.
The judge gave detailed and extensive directions to the jury about the elements of the charges, the alternative charge of dangerous driving causing death, and the alternative basis for considering charge 1, by reference to those documents. In doing so, her Honour repeatedly used the phrase ‘beyond reasonable doubt’ when outlining to the jury the elements of the offence that must be established. Importantly, the explanatory notes to the aide memoire entitled ‘Offence of culpable driving causing death’ dealt, in some detail, with the element of causation. Relevantly, the explanatory notes included the following:
·‘[Y]ou must be satisfied beyond reasonable doubt that the culpable driving of the accused was a substantial and operative cause of the death’.[111]
·‘You must consider whether you can exclude beyond reasonable doubt that there were any facts or matters independent of the accused’s culpable driving which caused the collision and acted to break the causal link between the culpable driving of the accused and the collision’.[112]
[111]Emphasis in original.
[112]Emphasis in original.
In relation to the latter point, the explanatory notes stated that the defence had raised the blowout of the rear tyre of Churchill’s vehicle, and the impact of the consumption of amphetamines by him, on Churchill’s driving. The notes then stated that if the jury could not exclude ‘beyond reasonable doubt’ a fact or matter, that was independent of the applicant’s culpable driving and inconsistent with the death having been caused by the applicant, then the element would not be satisfied and the verdict must be not guilty.
In addition, in the course of the charge, the judge referred to the criminal onus of proof when giving directions to the jury concerning three particular topics, namely:
·the fact that the applicant had not given evidence;
·the prosecution argument that the applicant had engaged in incriminating conduct after the collision; and
·the jury’s consideration of matters stated by the applicant in his record of interview.
In giving directions to the jury about the fact that the applicant did not give evidence, the judge commenced by stating ‘As I have told you, it is for the prosecution to prove its case beyond reasonable doubt and the accused man is not bound to give evidence’. In directing the jury concerning the topic of incriminating conduct, the judge instructed the jury that to draw an adverse inference against the applicant on the basis of falsehoods he initially stated to the police, the jury must be satisfied (inter alia) ‘that the only reasonable explanation of the conduct is that the accused held the belief … that he had driven in a reprehensible fashion, either culpably or dangerously, which was said to have caused the deaths’. In directing the jury concerning the matters contained in the applicant’s recorded interview with the police, the judge directed the jury that if it found the applicant’s account to be untruthful, it should put it to one side, and that the jury should decide whether ‘on the whole of the evidence, which you do accept as truthful and accurate, you are satisfied of the accused’s guilt beyond reasonable doubt’.
Finally, in her concluding remarks to the jury, the judge again emphasised that the onus of proof was on the prosecution. Her Honour said to the jury:
The prosecution must prove each and every element of the offence beyond reasonable doubt. If they have not proved it to your satisfaction then you must acquit the accused, that is, find him not guilty. And that involves excluding beyond reasonable doubt any reasonable hypothesis consistent with innocence.
That, then, is the context in which the impugned directions were given to the jury, and in which they must be assessed. The matters, which I have just discussed, fortify my earlier conclusion, namely, that while the impugned directions given by the judge were undesirable, and ought not to have been given, nevertheless they would not have created in the minds of the jury a false perception of the high standard of proof which it must attain before convicting the applicant of the two charges that were before it.
That conclusion is further reinforced by the circumstance that counsel for the applicant did not raise any exception to the impugned directions that are the subject of this ground of the application. As the High Court noted in Dookheea, the directions were given to the jury in the context and atmosphere of the criminal trial in which they were given. The impugned directions were given at an early stage in the judge’s charge. Counsel then appearing for the applicant had ample opportunity to take exception to the impugned directions, if he had apprehended, in the context of the trial, that they might have diluted or detracted from the high standard of proof which the prosecution was required to discharge in order to prove the guilt of his client.
For those reasons, I would not uphold ground 4 of the application.
Summary of conclusions on application for leave to appeal against conviction
For the foregoing reasons I have reached the following conclusions:
(1)The application for leave to appeal on grounds 1(ii), 2A(ii) and (iii), 2B and 6 should be refused.
(2)The application for leave to appeal on grounds 1(i), 2A(i), 3, 4 and 7 should be allowed, but the appeal on those grounds should be dismissed.
Before departing from the application for leave to appeal against conviction, it is appropriate to acknowledge that the judge’s charge to the jury was commendably thorough and well structured. Her Honour gave clear directions to the jury about the elements of the charges against the applicant, and the issues that were in dispute. She identified and summarised the evidence that was relevant to those issues, and explained to the jury the manner in which each side put its case. In doing so, her Honour ensured that, when the jury deliberated on its verdicts, it had a full understanding of the relevant legal principles that it must apply, the issues that it must determine, and the evidence that related to those issues.
Application for leave to appeal against sentence
Before the commencement of the trial, the applicant had pleaded guilty to a separate charge of perjury, arising out of the false statement that he had made to police on 3 February 2016 denying any knowledge of or involvement in the accident. After a plea that was made on his behalf, the applicant was sentenced to a total effective term of imprisonment of 14 years with a non-parole period of 9 years and 6 months, on the two charges of culpable driving, and the additional charge of perjury. That sentence was constituted as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
Indictment G10381638.A
1.	Culpable driving causing death [s 318 Crimes Act 1958]	20 years’ imprisonment	10 years’ imprisonment	Base
2.	Culpable driving causing death [s 318 Crimes Act 1958]	20 years’ imprisonment	10 years’ imprisonment	4 years
Indictment G10381638.B
1.	Perjury [Common law]	15 years’ imprisonment	6 months’ imprisonment	-
Total Effective Sentence:		14 years’ imprisonment
Non-Parole Period:		9 years and 6 months’ imprisonment
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		35 days
6AAA Statement: N/A
Other relevant orders: Licence cancelled and disqualified from driving for four years from 16/03/2018

The applicant seeks leave to appeal the sentences on the charges of culpable driving on three grounds, namely:
Ground One
The sentencing judge erred by imposing identical sentences on the two charges of culpable driving
Ground Two
The sentencing judge erred in finding that the applicant’s moral culpability was only ‘slightly reduced’ in circumstances where it was accepted by the prosecution that the deceased HC had by his driving and involvement in competitive racing and use of underinflated tyres played a causal role in the collision.
Ground Three
The sentences imposed on the charges of culpable driving, orders for cumulation, non-parole period and total effective sentence are manifestly excessive.
The plea
At the time of the offending, the applicant was 21 years of age. He commenced his secondary education at Keilor Downs Secondary School, and completed it at Year 12 level. He then engaged in further study at Victoria University, obtaining a Certificate IV in Accounting. He also gained qualifications in security operations and various warehouse licences. The applicant had been in continued employment for the period of eighteen months preceding the offending as the manager in transport and logistics in a company. His employment was terminated as a result of his arrest, as it was a requirement that he had a motor vehicle licence in order to perform his work.
The applicant was the eldest of three children of his parents, having two younger sisters. When he was 12 years of age, his father suffered a serious heart attack. The applicant was home alone with his father at the time. He saved his father’s life by administering cardio pulmonary resuscitation to him. It would appear that that traumatic incident had some effect on the applicant.
Following the offending, the applicant became somewhat of a recluse. In November 2016, his general practitioner referred him to Ms Christine Ellingworth, a psychologist. In the following two months, the applicant attended seven treatment sessions with Ms Ellingworth. She diagnosed that he had suffered a post-traumatic stress disorder and a major depressive disorder following the collision, and the legal consequences of it to him. She noted that the applicant had suffered recurrent, involuntary and distressing memories and dreams associated with the trauma of witnessing the deaths of Ms Clonaridis and Churchill, and that he experienced feelings of guilt and shame as a consequence.
The applicant has no previous convictions. A large number of character references were tendered on his behalf. They demonstrated that the applicant has been a decent, hardworking and caring person, and is a member of a close and devoted family. The applicant’s father had suffered, for some time, from ill-health, commencing with his severe heart attack. As a result, the applicant’s family had been reliant on him for financial support. He was regarded as a role model and mentor to his two younger sisters.
On the plea, counsel submitted that the applicant should be sentenced as a young offender. It was submitted that the applicant had demonstrated his commitment to self-improvement and rehabilitation by undertaking courses while he had been in custody. Counsel acknowledged that general deterrence was a consideration of some significance, but he submitted that purpose could be served through a lengthy head sentence with a substantial period of parole. It was also submitted that specific deterrence was of reduced significance in the case. Counsel accepted that some cumulation between the sentences imposed on the two culpable driving charges would be appropriate, but that there should be significant concurrency in order to adhere to the principle of totality.
Counsel further submitted that the culpability of the applicant, and his responsibility for the death of Ms Clonaridis, should be moderated by reason of the involvement of the driving of Churchill, which was a significant contributing factor to the accident. In particular, it was contended that as the applicant and Churchill had encouraged each other, the applicant was less responsible for his own driving, so that the sentence should be accordingly reduced. In support of that proposition counsel referred to the principles discussed in Spanjol v The Queen.[113]
[113](2016) 55 VR 350 (‘Spanjol’); [2016] VSCA 317.
At the commencement of the plea, the prosecutor accepted that the principles stated in Spanjol should have some application in the case. In particular, while the driving of the applicant influenced the driving of Churchill, similarly, Churchill’s driving was ‘partly responsible for the manner’ of the applicant’s driving. Accordingly, the prosecutor accepted that the principle of reduced responsibility should apply. The prosecutor also noted that the Court, in Spanjol, had considered that an offender’s culpability might be moderated if an independent factor also contributed to the accident.[114] In that respect, the prosecutor drew the judge’s attention to the role of the underinflated tyre on Churchill’s vehicle, although he noted that that circumstance was ‘overwhelmed’ by the speed of the driving of both Churchill and the applicant. The prosecutor also contended that, in a case such as this, the youth of offenders is given less weight in the application of the principles of general deterrence, because offences of such a nature are frequently committed by young offenders.
[114]Ibid 352–3 [5].
Reasons for sentence
In her reasons for sentence,[115] the judge noted, from the references tendered to the Court, that before the accident the applicant had been a decent, hardworking and caring person who was well respected by family, friends and members of the Turkish community. He was a dutiful son, who had achieved well in his employment, supported his family financially, and had been involved in charitable works.[116] The judge also accepted that the accident had had a profound effect on the applicant, that he was extremely remorseful, and that he had apologised to the families of the two victims.[117] Her Honour noted that the applicant was only 21 years of age at the time of the accident. However, based on recent authorities,[118] her Honour noted that offences of this kind are frequently committed by young offenders, who are otherwise of good character.[119]
[115]DPP v Arpaci [2018] VCC 285 (‘Reasons’).
[116]Ibid [26], [29].
[117]Ibid [25].
[118]Lennon v The Queen [2017] VSCA 85, [49] (Weinberg, Santamaria JJA and Kidd AJA).
[119]Reasons [71].
In considering the principles discussed in Spanjol, the judge noted the concession by the prosecution that Churchill’s conduct influenced the manner in which the applicant drove.[120] In particular, the applicant’s participation in the race at high speed was linked to the speed at which Churchill was driving.[121] Her Honour considered that ‘little mitigation’ of the applicant’s moral culpability should be attributable to the fact that Churchill had an underinflated tyre, as the ‘most overwhelmingly likely reason’ for the failure of that tyre was the build-up of heat due to the speed at which Churchill was travelling in competition with the applicant.[122]
[120]Ibid [35].
[121]Ibid [36].
[122]Ibid [37].
The judge noted the evidence of Dr Gerostamoulos, that the presence of methylamphetamine in Churchill’s blood had increased the likelihood that he would be involved in an accident.[123] However, her Honour accepted that the behaviour of Churchill, as a result of his ingestion of that substance, was ‘part and parcel’ of Churchill’s driving, so that that factor was subsumed by the prosecution’s concession that Churchill’s driving did have an influence on the manner in which the applicant drove.[124]
[123]Ibid [41].
[124]Ibid [42].
Her Honour then concluded:
Having carefully examined all of the evidence and the surrounding circumstances of your offending, although I accept that there is some reduction of your moral culpability because Mr Churchill’s driving was partly responsible for the manner of your driving, I do not consider that that reduction should be very considerable. The reason for that conclusion is that, on the evidence, it is apparent that you were in a hyped up state after having been to four of the five Northern Skids events and there is evidence from witnesses in two vehicles on the Western Ring Road that you challenged them to race prior to engaging in competitive driving with Mr Churchill.[125]
[125]Ibid [43].
Her Honour amplified that proposition by noting that while Churchill’s driving was partly responsible for the manner in which the applicant had been driving, so, too, was the applicant’s driving partly responsible for Churchill’s driving. Thus, her Honour considered that any reduction in the applicant’s sentence for Churchill’s behaviour and its impact on the applicant ‘should be very moderate’.[126]
[126]Ibid [48], [53].
The judge concluded by finding that the grossly negligent driving in which the applicant and Churchill had both engaged ‘made the risk of a collision very high and the risk of catastrophic consequences almost inevitable’.[127] Accordingly her Honour considered that the applicant’s culpable driving was ‘towards the high end of serious’.[128] The judge also considered that, in view of the gravity of the offending, denunciation, general deterrence, and just punishment must be the predominant sentencing principles.[129]
[127]Ibid [70].
[128]Ibid.
[129]Ibid [71].
Submissions
In support of ground 1, counsel for the applicant submitted that the imposition of the same sentence for the deaths of Ms Clonaridis and Churchill manifested error. While Ms Clonaridis was an innocent victim, Churchill was not.
In support of ground 2, counsel contended that it was not open to the judge to moderate the applicant’s moral culpability only to a ‘small extent’. It was submitted that it was clear, from the manner in which the trial was conducted, that the actions and conduct of Churchill were a substantial and operating cause of the collision. In those circumstances, it was contended, it was not open to the judge to moderate the moral culpability of the applicant by only a small amount, particularly in respect of charge 2.

In respect of ground 3, counsel contended that the applicant, on the plea, had relied on a number of substantial mitigating factors. They included: the applicant’s moral culpability was significantly reduced because of the conduct of Churchill; the remorse of the applicant; the applicant was of good character; the applicant had no previous convictions, had a solid background and a good work ethic, and there was no allegation that he had offended subsequently; the applicant had suffered a post-traumatic stress disorder and a major depressive disorder following the collision, he had been unable to work, and he had experienced substantial anxiety as a result of the delay in the holding of the trial, and the requirement that there be a re-trial; and the applicant had very good prospects of rehabilitation. It was submitted that, taking those matters into account, the sentences imposed on the applicant were manifestly excessive.
In response, counsel for the respondent submitted that the judge did not err by imposing identical sentences on the two charges of culpable driving. The offending conduct of the applicant was identical in respect of each charge, as was the contribution to that offending by Churchill’s own driving. Counsel for the respondent contended that the authorities do not support the proposition that because the passenger was not a contributor to the accident, the sentence for charge 1 should be more stern than the sentence in respect of charge 2.
In respect of ground 2, counsel for the respondent submitted that the judge was correct to consider that the objective gravity of the offending was very serious. The risk created by the applicant’s conduct was extremely high, and a number of innocent road users were placed in significant danger as a result of it. The respondent contended that, in that context, the judge’s assessment, of the extent to which the applicant’s culpability should be reduced by reason of the driving of Churchill, was within the sound exercise of her Honour’s sentencing discretion. The applicant had engaged in reckless driving that had contributed to two deaths, in the context of a race which exposed others to similar risks. In those circumstances, the extent to which the judge moderated the sentence, taking into account the actions of Churchill, was a matter for the judge in light of all the circumstances in the case.
In respect of ground 3, counsel for the respondent submitted the sentences imposed by the judge were not manifestly excessive, having regard to the objective gravity of the offending, the applicant’s moral culpability, and the circumstance that the applicant did not get the benefit of being able to rely on a plea of guilty in mitigation of sentence.
Application for leave to appeal sentence — analysis and conclusions
For the reasons that follow, I would uphold grounds 2 and 3. It is convenient to commence by considering ground 2.
The principles, that relate to ground 2, were discussed, in some detail, by the Court in Spanjol. In that case the applicant pleaded guilty to one charge of negligently causing serious injury by driving.[130] On the evening of the offence, the applicant, while driving his vehicle, at a speed exceeding the prescribed speed limit, lost control of the vehicle, oversteered it, and collided with a tree on the median strip.[131] His girlfriend, who was a passenger in the vehicle, was not wearing a seat belt at the time. As a consequence, she was ejected from the vehicle, thereby sustaining serious injuries.[132] The sole ground of the appeal was based on the contention that the victim contributed to her injuries by failing to take care for her safety.[133]
[130]Spanjol (2016) 55 VR 350, 352 [1]; [2016] VSCA 317.
[131]Ibid 353–4 [9].
[132]Ibid 354 [14]–[15].
[133]Ibid 352 [2].
In addressing that ground, the Court considered, in some detail, a number of previous decisions of this Court, including R v Howarth[134] and R v Tran.[135] Having analysed those authorities, the Court formed two conclusions, which are relevant to the grounds of the present application, namely:
(1)An offender’s responsibility, and moral culpability, may be moderated where it is demonstrated that some other person (whether or not the victim) and/or some external circumstance was partly responsible for the offender’s conduct.
(2)Further, where it is established that there was an additional factor, outside the offender’s control, which was also a material cause of the accident, that circumstance should ordinarily be taken into account in mitigation of sentence.[136]
[134](2000) 1 VR 593; [2000] VSCA 94.
[135](2002) 4 VR 457; [2002] VSCA 52.
[136]Spanjol (2016) 55 VR 350, 351 [5], 361–2 [40]–[46]; [2016] VSCA 317.
Those two principles were applicable in the present case. While the conduct and driving of the applicant was a substantial and operative cause of the extreme speed at which Churchill drove his vehicle, by an equal measure, the conduct of Churchill, and in particular the manner in which, and the speed at which, he drove his vehicle, was a significant contributing factor to the conduct of the applicant. Essentially, the liability of the applicant, for the fatal accident in which Churchill and Ms Clonaridis died, resided in the causal connection between the applicant’s culpable driving and Churchill’s driving. In assessing the moral culpability of the applicant, in accordance with the principles discussed in Spanjol, it was necessary to take into account, and give due weight to, the corresponding conduct by Churchill, which contributed to the conduct of the applicant, and which also contributed to the accident itself. Thus, the conduct of Churchill was, in that way, a relevant factor for the purposes of each of the two propositions formulated by the Court in Spanjol.
In addition, as a less significant factor, it was relevant that Churchill had chosen to drive his vehicle while the rear tyres on it were underinflated, and thus susceptible to failure under high speed. It was the failure of the rear tyre which, as a matter of sequence, precipitated the chain of events that resulted in the collision. As I have discussed, it did not, itself, cause Churchill directly to lose control. Nevertheless, it was a relevant, albeit less significant, causative factor in contributing to the accident. To that limited extent it was a relevant circumstance in the determination of the appropriate sentence.
As counsel for the respondent submitted, the weight to be attributed to the conduct of Churchill, and the failure of the tyre, as mitigating factors was essentially a matter for the sentencing judge in the exercise of her discretion. However, in the circumstances of the case, I do not consider that it was open to the judge to evaluate the mitigatory effect of Churchill’s driving as only being ‘very moderate’.[137] That evaluation failed to give appropriate weight to, and failed to adequately take into account, first, that Churchill’s conduct was a significant contributing factor in the applicant’s driving, and, secondly, that Churchill’s conduct was itself an important and substantial cause of the fatal accident in which he and Clonaridis both died. The first of those considerations modified the moral culpability of the applicant for the offending. The second proposition operated as a mitigating circumstance in the manner described in the second proposition stated in Spanjol.
[137]Reasons [48].
That conclusion is reinforced, in respect of the sentence imposed on charge 1, by one additional consideration. It is of course trite that both the applicant and Churchill, in driving their vehicles, owed a duty of care to all other persons who might have been in or about the highway. However, in addition, Churchill owed a specific duty of care to Ms Clonaridis. He was directly responsible for her safety and well-being as his passenger. Churchill’s driving, on that evening, was a most serious breach of that duty of care. That consideration amplified the second proposition enunciated in Spanjol. In particular, it added weight to the circumstance that there was an additional factor, outside the applicant’s control, which was also a material cause of Ms Clonaridis’ death.
For those reasons, ground 2 of the application for leave to appeal against sentence should be allowed.
I turn, then, to ground 1. As the foregoing analysis demonstrates, there was, at least in one respect, an additional consideration that was relevant to the determination of sentencing on charge 1, that was not material to the sentence to be imposed on charge 2. At the time of the offending, both the applicant and Churchill owed a general duty of care to all persons who might be on or by the roadway. In addition, as discussed, Churchill had a specific duty of care to ensure that the manner in which he drove his vehicle did not endanger the safety of his passenger, Ms Clonaridis. While that additional consideration might allow for some differentiation between the sentences imposed in respect of each charge, it did not require such a conclusion. As counsel for the respondent has pointed out, essentially, the degree to which the applicant and Churchill each exceeded the speed limit, and the degree to which each of them departed from the requisite standard of care required of them in the driving and management of their vehicles, was materially the same. As discussed, the driving by each of them was a substantial and operative cause of the fatal collision in which both Churchill and Ms Clonaridis died. That consideration justified the imposition of the same sentences in respect of charge 1 and charge 2, notwithstanding that the additional breach by Churchill of the specific duty of care to Ms Clonaridis might have permitted a differential in the sentences respectively imposed in respect of those charges. Accordingly, I do not uphold ground 1.
I also consider that ground 3 should succeed. In order to succeed, on the ground that the sentences imposed on him were manifestly excessive, the applicant must demonstrate that the sentences were wholly outside the range of sentencing options available to the judge. In other words, it must be demonstrated that the sentences, that are the subject of the application for leave to appeal, are so excessive as to bespeak error by the judge in the exercise of her sentencing discretion.[138]
[138]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).
In the present case, the judge characterised the applicant’s culpable driving as being ‘towards the high end of serious’.[139] As her Honour pointed out, the applicant and Churchill were competing at speeds which reached 182 kph over a distance of 2.7 kilometres, while weaving in and out of traffic and changing lanes. That conduct by the applicant contained a very high risk of collision and of catastrophic consequences. In such a case, the sentencing purposes of general deterrence and denunciation were of particular importance. The authorities make it clear that the principle of general deterrence remains of significance in cases such as this, notwithstanding the youth and immaturity of the offender.[140] It was necessary that the sentence imposed by the court be of sufficient severity that it sent a strong message to the community that any person, who might be minded to engage in conduct of the kind indulged in by the applicant, will lose their right to remain at liberty within society for a substantial period of time. It is also important that the sentence, in a case such as this, adequately reflected the condemnation by the law, and by society, of the perilous conduct engaged in by the applicant.
[139]Reasons [70].
[140]DPP v Lawrence (2004) 10 VR 125, 132 [22] (Batt JA with whom Winneke P and Nettle JA agreed); [2004] VSCA 154; Azzopardi v The Queen (2011) 35 VR 43, 53–7 [34]–[44] (Redlich JA with whom Coghlan and Macaulay AJJA agreed); [2011] VSCA 372.
On the other hand, there were substantial mitigating factors upon which the applicant was entitled to rely in mitigation of sentence. While, as I have stated, his youth did not measurably moderate the weight to be attached to the sentencing principle of general deterrence, nevertheless it was not irrelevant. The law recognises that it is in the interests of the community that young offenders, such as the applicant, be successfully rehabilitated into society at the conclusion of their sentences. Accordingly, it is important that sentences, that are imposed in cases such as this, be not of such severity as to crush or adversely affect the prospects of the offender’s rehabilitation. In this case, the applicant’s prospects of rehabilitation are positive. It was important that the sentences imposed on him not be such as to duly undermine those prospects.
The applicant had no previous convictions. The judge accepted that he was of good character, being a young man who had been engaged in gainful employment, and who had provided invaluable support to his family. Importantly, the applicant had already suffered substantial extra-curial punishment as a result of his offending. The traumatic circumstances of the accident had led to the development of a post-traumatic stress disorder and major depression, as a result of which he had become quite reclusive. The applicant had lost his employment in which he had, hitherto, been a success. The trial of the case was delayed, and, in addition, the applicant had experienced the strain of the first trial in which the jury was unable to reach a verdict. Finally, as discussed, the conduct of Churchill constituted a relevant mitigating factor, both in moderating the applicant’s moral culpability, and also on the basis that it of itself was a substantial contributing cause of the fatal accident.
Taking those matters into account, I am persuaded that the sentences of ten years’ imprisonment, imposed on charges 1 and 2, were each manifestly excessive, in that they were wholly outside the range of terms of imprisonment available to the judge as just sentences for the applicant’s offending. I also consider that the period of cumulation between the sentences imposed on those charges — four years — resulted in a total effective sentence of 14 years’ imprisonment, which was, in the circumstances, manifestly excessive. In the circumstances of the case, that period of cumulation should have been moderated in order to fashion an appropriate total effective head sentence.[141]
[141]DPP v Grabovac [1998] 1 VR 664, 680 (Ormiston JA with whom Winneke P and Hedigan AJA agreed).
Bearing in mind the gravity of the offending, and the applicant’s moral culpability for it, and giving appropriate weight to the mitigating factors, I would set aside the sentences imposed on charge 1 and on charge 2. In lieu of those sentences, I would sentence the applicant to 8 years’ imprisonment on each of those two charges, and direct that two years and six months of the sentence imposed on charge 2 be served cumulatively upon the sentence imposed on charge 1. Accordingly, the total effective sentence should be 10 years and 6 months’ imprisonment. I would direct that the applicant serve a period of 7 years’ imprisonment before becoming eligible for parole.
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[2020] VSCA 81

7 April 2020