Brett Stevenson v The Queen
[2014] VSCA 247
•3 October 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2014 0050 | |
| BRETT STEVENSON | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NEAVE and BEACH JJA, GINNANE AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 October 2014 | |
DATE OF JUDGMENT: | 3 October 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 247 | |
JUDGMENT APPEALED FROM: | DPP v Dunkley-Price & Anor, unreported, County Court of Victoria, 25 September 2013 (Conviction) and 16 December 2013 (Sentence), Judge Pullen | |
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CRIMINAL LAW – Conviction – Dangerous driving causing death – Dangerous driving causing serious injury – Jury address – Final address by counsel for co-accused – Final address by counsel for co-accused containing inadmissible material – Application for discharge of jury – Application for discharge of jury refused – No high degree of necessity – Jury direction – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R F Edney | Robert Stary Lawyers |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA
BEACH JA
GINNANE AJA:
Introduction
On 25 September 2013, following a 16 day trial in the County Court, the appellant was convicted of dangerous driving causing death and dangerous driving causing serious injury. On 16 December 2013, the appellant was sentenced to a total effective sentence of two years and six months’ imprisonment, with a non-parole period of 18 months.
On 22 August 2014, Ashley JA granted the appellant leave to appeal against his conviction on a sole ground of appeal that the trial judge had erred in failing to discharge the jury in the appellant’s trial following the closing address of counsel for the appellant’s co-accused, one Travis Dunkley-Price.
Background facts
At approximately 6.15pm on 19 July 2010 three vehicles were involved in a collision on the Western Highway at Myrniong. The collision resulted in the death of Ms Breanna Willmott and caused serious injury to her passenger, Ms Stephanie Bewley.
The Western Highway in the vicinity of Myrniong is a divided road. As at July 2010, it consisted of an emergency lane and two running lanes. The speed limit on this part of the highway was 110 kilometres per hour. It was dark at the time of the collision. Dunkley-Price (the appellant’s co-accused) was the driver and sole occupant of a 2004 Holden Commodore utility. Dunkley-Price stopped his vehicle in the left-hand running lane. Ms Willmott was in a Mitsubishi Magna driving in the left-hand running lane of the Western Highway approaching the Myrniong off-ramp, as she was intending to take the exit. Ms Bewley was her front seat passenger.
As Ms Willmott’s vehicle was approaching the exit it came upon the Holden Commodore which was slowing down. The Holden Commodore came to a stop and the Mitsubishi Magna stopped behind it. During the time the two vehicles were slowing or stopped a number of other vehicles passed or overtook them.
The appellant was driving a Holden Commodore utility in the left-hand running lane. On approaching the two stationary vehicles, the appellant’s vehicle collided with the rear of the Mitsubishi Magna and forced that vehicle forward, with Ms Willmott and Ms Bewley inside, into Dunkley-Price’s vehicle.
Emergency services attended the collision and Ms Willmott was pronounced deceased at the scene. Ms Bewley was taken by ambulance to Ballarat Base Hospital. Ms Bewley suffered injuries including bruising to her lower chest and upper abdominal area, back, pelvis and right hip.
The crash data retrieval log indicated that, in the two and a half to five second period immediately prior to the collision, the appellant’s vehicle increased its speed from 106 to 109 kilometres per hour; the throttle was deployed manually; the throttle percentage increased; engine revolutions were increasing; and there was no braking or evasive steering by the appellant prior to impact.
The Victoria Police Major Collision Investigation Unit attended and determined there was no mechanical fault on any vehicle which would have caused or contributed to the collision.
The parties’ cases at trial
The prosecution case was that the appellant was driving dangerously by failing to keep a proper lookout, and his actions significantly increased the risk of death or serious injury. Ms Willmott’s death and the serious injury suffered by Ms Bewley were alleged to be caused by a combination of matters, specifically, the dangerous driving of each of the appellant and Dunkley-Price.
Dunkley-Price’s case was that his driving was not a substantial or significant cause of the death and of the serious injury suffered. Dunkley-Price’s case was he had stopped in the emergency lane, rather than in the left-hand running lane. Since the jury convicted Dunkley-Price of culpable driving, it is plain that the jury accepted the prosecution case that Dunkley-Price was stopped in a position blocking the left-hand running lane, when the appellant’s vehicle ran into the vehicle driven by Ms Willmott, forcing it to collide with Dunkley-Price’s vehicle.
The appellant’s case was that, having regard to the circumstances, he was not driving in a dangerous manner. Central to the appellant’s case was a contention that another vehicle had obscured his view and then pulled out suddenly leaving him nowhere to go but to collide with the rear of the vehicle in which Ms Willmott and Ms Bewley were travelling. Further, the appellant contended that his speed increased slightly because he was about to drive up the hill near the site of the collision. The appellant relied upon the fact that there were no drugs or alcohol in his system and he was driving within the speed limit at the time of the collision.
The issues for the jury, so far as the appellant was concerned, were:
(a) whether the appellant was driving at a speed or in a manner dangerous to the public such that it involved a serious breach of the proper management or control of his vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured; and
(b) whether there was a causal relationship between the appellant’s dangerous driving (if that element was established) and Ms Willmott’s death and/or Ms Bewley’s serious injury.
Prosecution evidence
In presenting its case, the Crown called a number of witnesses who were either drivers or passengers in other vehicles in the vicinity of the collision. It is not necessary to set out this evidence as it is unrelated to the appellant’s ground of appeal. In addition to this evidence, the Crown called a number of emergency services and police officers, some of whom had spoken with the appellant following the collision. These witnesses included Peta Owen (a paramedic who attended the scene), Leading Senior Constable Rod Oppenhuis and Leading Senior Constable Shaun Woodhouse.
Ms Owen gave evidence that at the scene of the collision, the appellant had said to her that he had been driving along and that ‘they just pulled out, I went straight up the back and I had nowhere to go’. Ms Owen also gave evidence that Dunkley-Price had told her that he had been pulling into the left emergency lane, that he was almost stopped, saw a car come up behind him quickly and then at the last second put its right indicator on to pull out before the impact. Ms Owen’s evidence was given by her with the aid of contemporaneous notes she made at the scene of the collision.
Leading Senior Constable Rod Oppenhuis gave evidence that the appellant had said to him that he had been travelling at 110 kilometres per hour prior to the collision and had also said — ‘I noticed two cars up ahead approximately 50 metres in front of me and I couldn’t pull up in time. I wasn’t sure how fast they were going’.
Leading Senior Constable Shaun Woodhouse gave evidence that the appellant had said to him that he had been ‘doing 110’ and that he had been driving in the left lane, towards home, and that the next thing he knew there was a car in front of him and he hit it.
The Crown also led evidence of a record of interview conducted with Dunkley-Price. The appellant gave a ‘no comment’ record of interview to police.
Defence evidence
Dunkley-Price led evidence from a senior forensic engineer. We will not set out this evidence as it is unrelated to the appellant’s ground of appeal. Dunkley-Price also adduced the evidence of his father, Trevor Stanley Dunkley-Price, in relation to telephone calls made and received on the night of the collision.
The appellant did not call or give any evidence.
The impugned final address
In her closing address, counsel for Dunkley-Price relied upon those aspects of the evidence which supported his case that his vehicle was stopped in the emergency lane rather than the left-hand running lane. In the course of doing this, counsel for Dunkley-Price made submissions about Dunkley-Price’s record of interview as follows:
Now, I want to move on to some other evidence. There’s one piece of evidence I suppose that there hasn’t been much mention of made thus far but it’s a very important piece of evidence because (a) it’s evidence and it is evidence that you have to consider and it’s from the mouth of Travis Dunkley-Price and that’s his record of interview. He voluntarily went into the police station and answered the police questions and he told them, this was on 23 July, he told them exactly what he had told Peta Owen, Woodhouse on the night, there and then. He told them that he had pulled into the emergency lane. He also told them that he was answering a phone, but we’ll come to that in a moment and I’ll explain to you why he’s just wrong about that.
A little further on, Dunkley-Price’s counsel said:
Now one thing that you have been told already and will be told again is that these are two separate trials that are going on here, and nothing that Mr Dunkley-Price says in his record of interview about Mr Stevenson is admissible on Mr Stevenson’s case; you can’t use it on Mr Stevenson’s case.
But one of the things that he did say to police was this, he was asked this question - sorry, there’s not much of a question, the question is ‘OK’, this is at 210. ‘Now this guy, the guy that spoke to me that drove the blue ute’, question, ‘Blue ute?’, ‘Yeah, yeah. That hit her. He told me that he thought that she pulled out. I said, ‘Didn’t you see her indicating, mate, because I seen (sic) her indicating’, and I said, ‘Didn’t you see her stop? Didn’t you see her indicator?’ and he said, ‘Yeah, I’m pretty sure she pulled out’, and I said, ‘Well, I don’t know if she pulled out, but I know that her indicator was on cause that’s the last thing I’d seen pretty much before the impact’.
Now let me make it clear, you can’t use that as evidence against Mr Stevenson and Her Honour will tell you that. But let me remind you of what the other witnesses say about - Peta Owen the paramedic. I took her to her notes, this is from her notes, the notes that she made on the night. ‘Could you read out those two lines, please’, ‘So the next two lines at the bottom is’, she says, ‘Brett, driver of blue ute (rear ute), ‘They were in the left side lane and just pulled out. I went straight up the back, I had nowhere to go’. Sounds pretty consistent with what Mr Dunkley-Price said in his record of interview.
But there’s more, because then she was cross-examined by [counsel for the appellant], and [counsel for the appellant] put to her that what was in her statement, this is the statement that she made after she made the notes, that that read, ‘Brett was the driver of the blue ute and Travis was the driver of the grey ute. Brett told me that they were in the left side lane and she’d just pulled out. He said that he went straight up the back and that he had nowhere to go’, and [counsel for the appellant] put to her that she had in fact put the word ‘she’ in, rather than ‘they’, and challenged her on that, and said, look, that was just an assumption effectively that you were making, and that’s why you put the word ‘she’ in.
But Ms Owen says, ‘Well, yeah, OK, I agree. I did do that, I’ve added ‘she’ because I’ve drawn the conclusion that that’s what he’s referring to, and no, I didn’t ask him if that was the case. But at the time we were talking about it, he had asked me the condition of the occupants of the car, and I explained that Stephanie was relatively fine and would be fine, and that the driver had died’. So at the time that Mr Stevenson is saying this to Ms Owen, they’re talking about the occupants of the car. So she says, ‘That’s why I assumed that it was she that he was referring to had pulled out’.
But it doesn’t end there unfortunately because that is different to what he told Senior Oppenhius. What he tells Mr Oppenhius is this, this is Mr Stevenson, ‘I noticed two cars up ahead of me, approximately 50 metres in front of me and I couldn’t pull up in time. I wasn’t sure how fast they were going’. He couldn’t have noticed anything, he didn’t try and pull up.
The application for a discharge
Immediately following the address of counsel for Dunkley-Price, counsel for the appellant made an application for discharge of the jury in the following terms:
COUNSEL FOR APPELLANT: I have got an application to make for a discharge of the jury in respect of my client as a result of [counsel for D-P’s] address. During the course of her address, she quoted an alleged out of court conversation between my client and her client which she then went on to say was inadmissible in my trial, then linked it to the evidence of Ms Owens which then prejudices my client because it’s not something that I could raise on my trial and it is such a fundamental breach that it is incapable of being corrected by direction. It cannot be answered by me. It cannot be answered in my address and Your Honour in those circumstances, in my submission, will have no option but in respect of my client to discharge the jury.
What it’s doing is it’s ultimately being used on one hand to bolster her client’s position and putting me in a situation where there’s a conversation which I can’t counter.
Counsel for Dunkley-Price then sought to justify the impugned passage in her final address in the following terms:
COUNSEL FOR D-P: Your Honour I made it very clear to the jury that anything that my client said in his record of interview about Mr Stevenson could not be used on Mr Stevenson’s case, it could not in any way be admissible on his case. I made that very abundantly clear to the jury. What, however, can be used on Mr Stevenson’s case is the conversation that Mr Dunkley was said to have had with Ms Owen.
That was the evidence, that is evidence on his case. That is all that I was pointing out, Your Honour, I was not linking the two to suggest that somehow they could make - by reference to Ms Owen’s evidence they could therefore use Mr Dunkley-Price’s record of interview as evidence against [the appellant’s counsel’s client]. I did not do that and I made it abundantly clear to the jury that anything that Mr Dunkley-Price said in his record of interview about Mr Stevenson, or any conversation with Mr Stevenson, was not and could not be used in his case. Ms Owen’s evidence, however, can be. I did not breach anything, Your Honour, and in my submission I was at pains to make it clear to the jury.
The evidence of Ms Owen is the evidence of Ms Owen and that is admissible on Mr Stevenson’s case. Just because it so happens to be consistent with what my client says is totally irrelevant. I refer to what was said to Ms Owen to show the contrast as well, because I then went on directly after that to what Mr Stevenson said to Mr Oppenhuis.
There was then a further debate between the judge and counsel for Dunkley-Price and the judge and counsel for the appellant. During this debate there was the following exchange between the judge and counsel for Dunkley-Price:
HER HONOUR: So why did you refer to the record of interview at all?
COUNSEL FOR D-P: Because it’s what he says in his record of interview, but I made it clear they couldn’t use it on his case.
HER HONOUR: Well why did you mention it?
COUNSEL FOR D-P: Why wouldn’t I mention it, they hear it?
HER HONOUR: The link.
COUNSEL FOR D-P: I’m not making a link, Your Honour. I then go on to say this is what he said to Peta Owen and then this is what he said to Mr Oppenhuis.
HER HONOUR: Isn’t that the link? This is what he said to? Isn’t that the link? What you’re trying to do is suggest that what he’s said in the record of interview is exactly consistent with Ms Owen and Oppenhuis.
COUNSEL FOR D-P: What Mr Trevor Dunkley-Price says in his record of interview Mr Stevenson told me is the same as what Peta Owen says he told her.
HER HONOUR: Why didn’t you just say Peta Owen said this, Peta Owen said that Mr Stevenson said X, and Mr Oppenhuis made reference to speaking to Mr Stevenson who also said X.
COUNSEL FOR D-P: That’s what I did Your Honour.
HER HONOUR: No, why did you try to link it, which you clearly did, with the answer in a record of interview which is inadmissible against Mr Stevenson.
COUNSEL FOR D-P: With the clear expression to the jury that it is not admissible, nothing in that interview is inadmissible against Mr Stevenson.
HER HONOUR: Why did you mention it? Why do you need the link? Why couldn’t you have just gone straight to Ms Owen and Mr Oppenhuis?
COUNSEL FOR D-P: Because I was talking about Mr Dunkley-Price’s record of interview. The jury have to assess his record of interview, they have to assess what he says in that, in totality. It doesn’t mean that they can use that against Mr Stevenson. It’s to assess Mr Dunkley-Price. The prosecution case is that Mr Dunkley-Price is wrong when he says to the police that he’s in the emergency lane.
The exchange between the judge and counsel for Dunkley-Price continued, and included:
COUNSEL FOR D-P: Your honour in my submission it’s exculpatory. What Mr Trevor Dunkley-Price [sic] says in his record of interview is exculpatory and can be used as exculpatory evidence in his – on his case. The fact that it is corroborated in some way, your Honour, is also admissible on my case. What is not admissible on Mr Stevenson’s case is whatever it is that Mr Trevor Dunkley-Price [sic] says about a conversation between them. The jury will be told that, but they can use the consistency as evidence of exculpatory - - -
HER HONOUR: If it’s inadmissible, how can they then use it? They can certainly use Owen and Oppenhuis, but if that is not admissible against Mr Stevenson - - -
COUNSEL FOR D-P: If Owen and Oppenhuis – not Oppenhuis, your Honour, because that’s different, but if Ms Owen says something that is consistent with an exculpatory statement by my client then that is admissible on my client’s case.
It may be accepted for present purposes that exculpatory statements made by Dunkley-Price in his record of interview about matters with respect to which he could give evidence are admissible in his trial. However, that does not mean that some inadmissible hearsay statement in the record of interview (in this case alleged to have been made by the appellant) was admissible or (to use the language of Dunkley-Price’s counsel) ‘exculpatory’ of Dunkley-Price.
The judge’s ruling
The judge concluded that there was not ‘a high degree of necessity’ to discharge the jury[1] and rejected the appellant’s application for a discharge. However, the judge’s ruling makes it apparent that her Honour was not entirely satisfied with the explanation given by counsel for Dunkley-Price for referring to that part of Dunkley-Price’s record of interview that contained the alleged conversation between Dunkley-Price and the appellant. The judge said that she thought that it was ‘less than clear’ as to how the jury might have interpreted what was said by counsel for Dunkley-Price, and that it was ‘sloppy to say the least’.
[1]Cf Crofts v The Queen (1996) 186 CLR 427; R v Halliday (2009) 23 VR 419.
Nevertheless, the judge said that, given the stage at which the trial was at, she considered that ‘something said by me by way of a jury direction can remedy any potential prejudice to [the appellant], and I propose to direct them in relation to that submission that it is inadmissible’.
The judge’s charge
The final addresses, the application to discharge the jury and the judge’s ruling were all made on Friday, 20 September 2013. The judge gave the direction she previously foreshadowed with counsel in her charge on the following Monday, 23 September 2013. After giving a standard separate consideration direction, the judge said:
You will note what I have said is that you must consider the case against each accused in light only of the evidence that applies to that accused. And I say that because some of the evidence that you have heard in this trial is only relevant to the case against one accused, or another. And if a particular piece of evidence is only relevant to one accused, you may only use it when considering whether or not that particular accused is guilty, and you cannot consider it in relation to the other accused.
Now in this trial, that applies to the record of interview conducted with Mr Dunkley-Price. That record of interview is only part of the evidence in relation to his case. The content of that record of interview including anything attributed by him to any conversation he had with Mr Stevenson is not admissible. It is inadmissible against Mr Stevenson.
You cannot use anything said by Mr Dunkley-Price in his record of interview when considering the evidence that relates to Mr Stevenson, you cannot do it. If you think about it, that is unfair if you did because Mr Stevenson was not there at the time the record of interview was conducted with Mr Dunkley-Price and therefore he did not have the chance to say that is not what I said, or that is not what happened or - you know did not have a chance to correct anything, if it needed correcting.
So it is very important that anything said by Mr Dunkley-Price in his record of interview is only relevant as part of the evidence relating to Mr Dunkley-Price and to him alone. In her closing address, [counsel for the appellant] made to a conversation between Mr Dunkley-Price and Mr Stevenson that was referred to by Mr Dunkley-Price in his record of interview. I direct you that that alleged conversation as described by Mr Dunkley-Price is not admissible against Mr Stevenson at all.
Mr Stevenson as I said was not present when Mr Dunkley-Price said those things to police. It would not only be unfair, but also wrong in law to attribute that discussion to Mr Stevenson, consistent with the direction that I have given to you about that.
Analysis
The judge was rightly critical of counsel for Dunkley-Price’s recitation of the inadmissible conversation alleged by Dunkley-Price, in his record of interview, to have occurred between himself and the appellant. Any such conversation was not admissible against the appellant. Further, it is difficult to see what, if any, legitimate basis counsel for Dunkley-Price had in recounting the conversation. The statements attributed to the appellant were hearsay and could not provide any legitimate defence to the charges Dunkley-Price faced.[2] Although the judge carefully questioned counsel for Dunkley-Price as to her purpose in making these comments, the responses the judge received were not entirely coherent. The judge was correct in being somewhat sceptical of the responses she received from Dunkley-Price’s counsel.
[2]Indeed as counsel for the Crown (not counsel who appeared at the trial) submitted to this Court, it was perhaps regrettable that the relevant inadmissible part of Dunkley-Price’s record of interview was not excluded before final addresses.
There is a distinct flavour of Dunkley-Price’s counsel (as the judge put it) ‘trying to put the boots in’ to the appellant. This may have been for no better reason than that counsel considered that the jury might be more likely to acquit Dunkley-Price, if they convicted the appellant. Although Dunkley-Price’s counsel told the jury that the evidence, in the record of interview, of the conversation between the appellant and her client was not admissible against the appellant, she undermined that comment by unnecessarily referring to that conversation. We cannot conclude why she did so. We would not conclude that Dunkley-Price’s counsel deliberately acted improperly because she is not represented in this appeal, and thus not able to defend herself in the present proceeding. But at best her closing address reflected a misunderstanding of relevant principles.
The Crown case against the appellant was that he had been seriously inattentive in the moments leading up to the collision. The prosecution relied upon the evidence of drivers whose vehicles had successfully negotiated the obstruction caused by Dunkley-Price, and upon the evidence of the police expert as to reaction time and braking distances. However, a major plank of the appellant’s case was that another vehicle (perhaps driven by a Mr Shillito) had obscured the appellant’s view and then pulled out suddenly leaving the appellant nowhere to go but to collide with the rear of the vehicle in which Ms Willmott and Ms Bewley were travelling. In the circumstances, any suggestion of a contemporaneous statement by the appellant that he might have been unsure of the position of (or had not seen) the vehicle in which Ms Willmott and Ms Bewley were travelling was likely to be damaging. It was for that reason that the appellant’s counsel was at pains to cross-examine Ms Owen about precisely which vehicle the appellant was talking about in his conversation with her.
The evidence of what the appellant said to Ms Owen was capable of two interpretations. On one view, what the appellant said was a reference to a motor vehicle ‘blind-siding’ his view of the victims’ vehicle (again, perhaps Mr Shillito’s vehicle). On the other view, what the appellant said was capable of being interpreted as a mere failure by the appellant to see the victims’ vehicle, which had pulled out in front of him. This second view, as we have said, if accepted by the jury, would have significantly diminished the appellant’s prospects of an acquittal. That said, the admissible evidence of Ms Owen and Leading Senior Constables Oppenhuis and Woodhouse was capable of supporting the conclusion that the appellant did not know how the collision occurred and therefore had failed to keep a proper lookout.
The vice in the address of counsel for Dunkley-Price was that, notwithstanding the efforts by the appellant’s trial counsel to cross-examine Ms Owen (and later persuade the jury) to the effect that what the appellant said to Ms Owen concerned another vehicle, counsel for Dunkley-Price had put to the front of the jury’s mind (and in considerable detail) the assertion of an inadmissible statement allegedly made by the appellant – which statement was capable of being regarded as an admission by the appellant that he simply did not see the victims’ vehicle.
All of that said, there was, without any reference to the alleged conversation between the appellant and Dunkley-Price, an evidentiary basis for the prosecution contending at trial that the appellant had been seriously inattentive and had failed to keep a proper lookout so as to observe and avoid hitting the vehicle in which Ms Willmott and Ms Bewley were travelling.
While we have a real disquiet about the conduct of counsel for Dunkley-Price, ultimately we are unable to conclude that the judge was wrong in failing to find there was a high degree of necessity to discharge the jury. Indeed, with respect, we think the judge was correct to reject the appellant’s application to discharge the jury: the requisite ‘high degree of necessity’ was simply not present at the time of the appellant’s application (or indeed thereafter).
The judge gave her ruling rejecting the application for discharge on a Friday and began charging the jury on the following Monday. On one view any risk that the jury would have been influenced by Dunkley-Price’s counsel’s closing address could have been further reduced if the judge had given the foreshadowed direction immediately after she rejected the application to discharge the jury. On the other hand, the delay between the rejection of the application and the jury charge might well have removed some of the sting of the inappropriate remarks made in Dunkley-Price’s counsel’s closing address. These are matters for speculation.
But in any case, trial counsel for the appellant[3] did not ask the judge to immediately give the direction which was ultimately given. It would also have been possible for the judge to have given the direction in more emphatic terms and/or by making specific reference to counsel for Dunkley-Price’s linking argument, but again no such request was made by the appellant’s trial counsel (and perhaps for good forensic reason, namely that trial counsel for the appellant did not wish to emphasise the matter further). In any case, we are not persuaded that there was any defect in her Honour’s direction.
[3]Not counsel who appeared on this appeal.
Conclusion
The appeal must be dismissed.
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