Burgess v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0043

ALAN OWEN BURGESS	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	BUCHANAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 March 2011
DATE OF JUDGMENT:	24 March 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 452
JUDGMENT APPEALED FROM:	R v Burgess (Unreported, County Court of Victoria, Judge Howard, 18 March 2011)

---

CRIMINAL LAW – Evidence – Admissibility – Culpable driving and dangerous driving causing death – Collision between truck driven by applicant and another vehicle – Whether evidence of applicant’s driving immediately prior to collision admissible – Whether stay of proceedings warranted – Application refused – Criminal Procedure Act 2009 ss 295(3), 296 – Evidence Act 2008 s 55 – R v Smith [1995] 1 VR 10; ZL v The Queen (2010) VSCA 345 applied.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Bayles	Robert Stary Lawyers (Sunshine)
For the Crown	Mr C Beale with Ms J Piggot	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

The applicant is on trial in the County Court on a charge of culpable driving and an alternative charge of dangerous driving causing death.
The prosecution case is that on 17 July 2008, the applicant was driving a large refrigerated van between 95 and 100 kilometres an hour on the Princes Highway, a divided highway with two lanes in each direction, near Nar Nar Goon. The applicant's vehicle collided with the rear of a Land Rover which was travelling in the left-hand lane at a speed of less than 30 kilometres per hour. The collision caused extensive damage and the death of a passenger in the Land Rover.
A Crown witness, Andrew Somalis, gave evidence that very shortly before the collision, he came upon the Land Rover in the left-hand lane, when it was travelling slowly. He had no difficulty seeing it and was able to pass the vehicle at about 100 kilometres an hour without incident. The driving conditions and visibility were good. According to the Crown case, any driver approaching the Land Rover would have been able to see it. The applicant did not brake until he was immediately upon the Land Rover. He told the police that he did not see the vehicle in front of him. He was not able to provide any explanation for his failure to see it and either brake or pass the Land Rover in the right-hand lane, as Mr Somalis had done.
On the eve of the trial, the trial judge ruled that evidence of prior driving by the applicant was admissible and refused an application for a permanent stay of the charge of culpable driving. The applicant applied to the trial judge to grant a certificate pursuant to the provisions of s 295(3)(a) and (b) of the Criminal Procedure Act 2009 (‘the Act’) in order to mount an interlocutory appeal against the rulings. Section 295(3) of the Act provides:
(3)A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies -
(a)if the interlocutory decision concerns the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case; and
(b)if the interlocutory decision does not concern the admissibility of evidence, that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal ...
The trial judge refused to grant certificates. The applicant now applies to this Court to review that decision pursuant to the provisions of s 296 of the Act.
I turn first to the ruling admitting evidence of one Edwards of prior driving by the applicant.
The evidence was that approximately three kilometres and less than five minutes before the collision, the applicant passed Mr Edwards in the right-hand lane, while Edwards was travelling at about 80 kilometres an hour and the applicant was travelling at approximately 100 kilometres an hour. Before the applicant had completed his passing manoeuvre, he commenced to turn back into the left-hand lane, which forced Mr Edwards to brake heavily and ultimately move his car further to the left into the emergency lane in order to avoid a collision. The trial judge ruled:
That evidence has high probative value. It could not in any way mislead the jury. Its probative value is not outweighed by its prejudicial effect, having regard to the way in which that expression is to be understood. The evidence of the earlier driving concerning Mr Edwards, if accepted by the jury, is capable of demonstrating a lack of due care and attention by the accused in the control of his vehicle concerning the danger presented to him by another car on the highway and that even occurred a very short time and distance from the point of collision.
In refusing to grant a certificate, his Honour held that the exclusion of the evidence would not substantially weaken the prosecution case. Counsel for the applicant submitted that the evidence was so significant that the Crown case would be substantially weakened if it were excluded, but maintained that the evidence ought to have been excluded on the basis that it was irrelevant. He submitted that the Court case turned only upon the evidence as to the collision.
In this Court, counsel for the respondent was prepared to concede that the evidence of Mr Edwards could be described as major or important. See ZL v R (2010) VSCA 345, paragraphs 17–20. Nevertheless, counsel for the respondent submitted that the contention by the applicant that the evidence of Mr Edwards was irrelevant was hopeless and on that basis the trial judge was justified in refusing to grant a certificate.
In my opinion, the evidence of Mr Edwards was relevant and admissible. The driving observed by him occurred a short time and space before the collision and exemplified a want of care which was consistent with the circumstances in which the collision occurred, that is, the applicant was apparently oblivious of other road users. If the evidence of Mr Edwards is accepted by the jury, it could rationally affect the assessment of the probability of the existence of a fact in issue, that is, whether the applicant was paying any attention to other road users when his truck collided with the Land Rover; see s 55 of the Evidence Act 2008. In a sense, the applicant is between a rock and a hard place, in being obliged to contend that the evidence was so cogent that the prosecution case would be substantially weakened if it were excluded and at the same time contending that it was irrelevant.
Accordingly, I am of the view that the trial judge was warranted in refusing to grant a certificate in relation to his ruling as to the evidence of Mr Edwards.
There remains the question of the stay.
Counsel for the applicant submitted to the trial judge that the prosecution case was foredoomed to fail, as there were missing the ‘usual features’ said to be associated with culpable driving, such as the consumption of alcohol or drugs, driving at an excessive speed, using a car in a deliberately dangerous manner or using a mobile phone. Counsel said that the applicant's driving might be described as careless, even negligent, but could not amount to gross negligence.
The trial judge refused to stay the trial. He held that the Crown case was not foredoomed to fail, saying:
It seems to me that, putting the evidence at its highest, as I must, it would be open to the jury to convict of culpable driving on the basis that it was satisfied that the accused’s driving was grossly negligent. It is, it would appear, clear that the accused had ample opportunity in which to see the Land Rover entering the highway from the right, which he said he did not see, and then to have seen it ahead of him travelling slowly along the highway in the left lane. It was clear that the other driver, Mr Somalis, saw all this and had no difficulty travelling at 100 kilometres an hour to move into the right-hand lane to pass the car. The same opportunity was available to the accused to see both the vehicle ahead of him and to have passed it in a similar way. There was no inhibition in that regard from other vehicles. Alternatively, it was open to the accused to have simply braked adequately before colliding with the vehicle so as to avoid the collision altogether.
His Honour described the application for a stay as hopeless in refusing to certify. In my opinion, his Honour's description was accurate. The test to be met to obtain a stay is strict. In order to establish that proceedings are an abuse of process and should be stayed, an accused must show that the proceedings are doomed, that is, that they must fail. In the R v Smith,[1] Brooking JA said that proceedings are an abuse of process,
not if it can be said of them only that they will very likely fail but if it can be said of them that it is quite clear that they must inevitably fail. It may be — we need not decide this — that in a quite exceptional case, where it is plain beyond argument that there is no evidence available of some essential element of the crime, the trial judge, being satisfied of this at the outset, could properly determine that the prosecution should be stayed as an abuse of process.
[1][1995] 1 VR.
In the same case, Byrne AJA said that the power to stay a prosecution should be:
limited to the case where it is plainly on argument that the prosecution case suffers from some incurable vice. Such a vice must be readily apparent and particularly fatal to the prospect of success of the prosecution; see also PG v R (2010) VSCA 289.
In my opinion, there is clearly a case for the applicant to answer and, in my view, his Honour was justified in failing to certify. Put at its highest, I regard the applicant as having an arguable defence. It is not clear, however, that the prosecution must inevitably fail.
I would dismiss the application to review the trial judge’s refusal to certify.

---

[2011] VSCA 452

24 March 2011