Dekker v The State of Western Australia

[2009] WASCA 72

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	DEKKER -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 72

CORAM : OWEN JA

PULLIN JA MILLER JA

HEARD	:	17 FEBRUARY 2009
DELIVERED	:	3 APRIL 2009
FILE NO/S	:	CACR 87 of 2008

BETWEEN : LEILA MARIE DEKKER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction	:	DISTRICT COURT OF WESTERN AUSTRALIA
Coram	:	HH JACKSON DCJ
File No	:	IND KAR 23 of 2002
Catchwords:

Criminal law - Evidence - Fresh or new evidence - Dangerous driving causing death - Manner of travel of vehicle in which deceased travelling - Whether expert evidence in relation to tyre marks on the roadway constitutes fresh or new evidence

[2009] WASCA 72

Criminal law - Presentation of prosecution case - Dangerous driving causing death - Case based on deliberate driving of vehicle in which deceased travelling - Case that vehicle deliberately driven around the vehicle of appellant - Whether evidence established that vehicle was out of control before appellant entered intersection - Whether prosecution bound by way in which case presented

Legislation:

Criminal Appeals Act 2004 (WA), s 40(1)(e)

Road Traffic Act 1974 (WA), s 59(1), s 61

Result:

Extension of time granted
Leave to adduce fresh evidence refused
Leave to appeal granted on ground 2
Leave to appeal refused on ground 1
Appeal allowed

Conviction quashed

Category: B

Representation:

Counsel:

Appellant	:	Mr P J Urquhart
Respondent	:	Mr D Dempster

Solicitors:

Appellant	:	Hammond Worthington
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Anderson (1991) 53 A Crim R 421

Bradshaw v The Queen (Unreported, WASCA, Library No 970228, 13 May

1997)

[2009] WASCA 72

Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382
de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Hillstead v The Queen [2005] WASCA 116
Huynh v The Queen [1999] WASCA 45
Parker v The Queen (1997) 186 CLR 494
R v Tangye (1997) 92 A Crim R 545
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
R v The State of Western Australia [2008] WASCA 127
Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88
Spiers v The Queen [1999] WASCA 206
Tran v The Queen [2000] FCA 1888; (2000) 105 FCR 182

[2009] WASCA 72

OWEN JA

1. OWEN JA: I have seen the reasons that Miller JA intends to publish. I agree with his Honour's conclusions that there has been a miscarriage of justice such that the conviction must be quashed. I also agree with his Honour's reasons for coming to that conclusion. Nonetheless I wish to state, very briefly, why I have formed the view that the conviction cannot stand.

2              The facts are set out in detail in the reasons of Miller JA. I will not

repeat them save to the extent necessary to make sense of what I say. The State's case, in opening, was that at around 6 pm on 27 April 2002 the appellant was travelling (with a passenger) north along Cherratta Road, a minor road that ends in a T-junction with North West Coastal Highway. Bobby was travelling (with a passenger) west along North West Coastal Highway towards the T-junction. The appellant stopped at the T-junction. Bobby's vehicle was coming from the appellant's right. The appellant was talking to her passenger and, without looking to her right, pulled out into the intersection. The prosecutor said:

The other vehicle had started to move towards, if you like, what would be the wrong side of the road for it, moved over to the right, in order to avoid the [appellant's] vehicle … . The [appellant] saw [the other vehicle] and … drove straight across the highway, in other words kept on in the direction she was going … . The other vehicle somehow missed her and drove around, managed to get past and drive around the front of [the appellant's] vehicle … but as the other vehicle managed that manoeuvre and got past and tried to back [sic] on the road in the right place, the driver lost control and went onto an embankment and rolled over.

1. When the other vehicle rolled, the passenger was thrown out and suffered severe injuries. She died at the scene.

4              It can be seen that the State's case, as opened, was that Bobby's

vehicle was under control at the time when he saw the appellant's vehicle and moved to the right-hand side of the road to avoid a collision. Bobby was able to avoid the collision and got past the appellant's vehicle but in attempting to bring his car back to the correct side of the road he lost control and the rolled vehicle, leading to the most unfortunate of consequences.

5              However, this description of events was not borne out by the

evidence as it was led. The effect of the evidence of Constable Pillage, a major crash investigator, was that the movement of Bobby's vehicle to the right and then back towards the left (in the direction of the embankment) happened much earlier than described in the opening statement and certainly before he had passed the appellant's vehicle. On the evidence,

[2009] WASCA 72

OWEN JA

Bobby's vehicle was out of control by the time it began to veer left towards the embankment. The evidence disclosed that Bobby's vehicle passed behind (not in front of) the appellant's vehicle but, to my mind, that is not of any significance. The crucial point is the time at which Bobby ceased to have control over his vehicle.

6              Three pieces of documentary evidence are of particular significance

in this respect. After the accident, there was a series of tyre marks left on the road surface. Police officers who attended the scene (not Pillage) marked them in yellow chalk. A photograph was taken (exhibit 4, photo 1) from somewhere near the T-junction looking east in the direction from which Bobby's vehicle had come. It shows the yellow chalk marks starting from somewhere in the middle of the road, then veering right and then left in a reasonably consistent curve. Clearly visible on the left-hand side of the photograph (on the north side of the highway) is a 60 kilometre speed warning sign. No evidence was led of the distance between the speed sign and the T-junction. The tyre marks depicted by the yellow chalk start from a point close to the speed sign.

7              The second item of evidence is a photograph taken by Constable

Pillage about five days after the accident (exhibit 4, photo 2). It appears to have been taken from much the same spot as was photo 1. By that time, most of the yellow marks had disappeared. Pillage's evidence was that he re-marked those of the yellow marks that he could still see using pink paint. Photo 2 captures the pink marks. The marks are all proximate to the T-junction and do not extend back towards the speed sign as do the yellow marks in photo 1.

8              Using measurement he made at the scene and photo 2, Pillage

created a plan of the roads and the accident scene. The plan shows tyre marks of Bobby's vehicle but only those starting at the point where he (Pillage) had been able to re-mark the yellow chalk marks. This plan was before the jury as exhibit 1 and it is the third significant piece of documentary evidence.

9              Miller JA has described in detail the evidence given by Pillage about

'rolling tyre marks', 'striations' and 'critical speed'. The only conclusion
that can be drawn from that evidence is:

(a)  the striations were caused by the tyres being under stress and slipping sideways;

[2009] WASCA 72

OWEN JA

(b)	the striations indicate that the vehicle had arrived at 'critical speed', that is, the tyres were starting to lose traction and slide to the side; and
(c)	the vehicle was going too fast to perform the particular manoeuvre (the turning arc) and keep traction on the road.

10            It follows that from the point at which critical speed was reached the

vehicle was not under control. What seems not to have been appreciated at trial is that this occurred at the commencement of the yellow chalk marks. In other words, the vehicle was out of control from a point close to the speed sign. This is totally inconsistent with the State's case that Bobby was in control of the vehicle and managed to pass the appellant's vehicle and then (and only in the course of Bobby trying to get 'back on the road in the right place') he 'lost control and went onto an embankment and rolled over'.

11            It probably does not matter (now) why this crucial factor was not

appreciated by anyone at trial. It may be explained by the difference between exhibit 4 photo 1 (showing the turning arc starting near the speed sign) and exhibit 1, in which the representation of the arc starts virtually at the T-junction. The difference, and its impact on the question of critical speed, was not canvassed in evidence, defence counsel's address or in the trial judge's summing up. The difference in the depiction of the tyre marks between photo 1 and exhibit 1 was referred to by the prosecutor in his closing address but not in a way that related to the question of control of the vehicle. Indeed, the prosecutor addressed on this question in much the same as he had done in opening:

[The appellant] has started her turn [and] she's out in the middle. He's out here. … He has seen her and he has tried to brake and it has pulled him away to the right because of the wheel and he has corrected that and he has gone in there to the left and he has managed to [do] that. He has managed to control the car so that he could do that because she was right out there and she has pulled straight away into the kerb to avoid him and he has passed behind her. [emphasis added]

12            In other words, save for the question whether Bobby's vehicle passed

behind rather than in front of the appellant's car (an immaterial matter), the State's case as to the point at which Bobby lost control of his vehicle (a material matter) did not change during the trial. But it was not borne out by the evidence.

13            There was, of course, a considerable body of other evidence led at

trial, much of it strongly supporting the State's case. But the factual

[2009] WASCA 72

OWEN JA
PULLIN JA

difficulties I have mentioned arose in relation to a central plank of the State's case. In my view, this brings into play the principles referred to in Tran v The Queen [2000] FCA 1888; (2000) 105 FCR 182 [133] - [135]. The effect of those principles is that the jury should not be invited to proceed on a theory that is not borne out by the evidence. If that occurs, and a conviction results, the verdict can be set aside.

14            Despite the wording of ground 1 and some of the written

submissions in support, this is not a case where the prosecution has been derelict in its duty to disclose relevant material to defence. The evidence was there and the prosecutor was by no means alone in failing to appreciate its import.

15            Importantly, neither is this a situation where there was a change in

the prosecution case after the opening. It is common experience that a witness may not 'come up to proof' or for some other reason the evidence that emerges at trial diverges from the way the case was opened. In those circumstances, it is important that the change is identified with precision before counsel commence final addresses: Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88 [141] - [142]. The problem that arises in this appeal is different: the case was opened and closed on a material issue in a way that did not accord with the evidence.

16            It is unusual for an extension of time within which to appeal to be

granted when the delay is as long as it has been here (about two and a half years) and the explanations for the delay are not noteworthy. But the nature of the problems affecting the conviction at trial are such that, in my view, the court is obliged to intervene. For the reasons given by Miller JA, I do not think the court should accede to the request to adduce 'fresh evidence'. I also agree with his Honour that, in the circumstances of this case, the conviction should be quashed and there should not be a re-trial: Parker v The Queen (1997) 186 CLR 494, 520 - 521.

1. PULLIN JA: The appellant was arraigned on indictment and tried by a judge and a jury of the offence set out in the indictment which read:

   On 27 April 2002 at Roebourne [Leila] Maria Dekker drove a motor vehicle on a road in a manner that was, having regard to all the circumstances, dangerous to the public or to any person, and thereby caused the death of Josie Tumbler.

18            The appellant was convicted. The second ground of appeal under

consideration was added at the end of the hearing of oral submissions on
the appeal. It reads:

[2009] WASCA 72

PULLIN JA

That the prosecution case was presented on a particular factual basis that was not supported by the evidence and as a result a miscarriage of justice has occurred by reason of the jury's finding of guilt.

19            The ground, drafted by counsel on the run at the hearing, does not

particularise how the prosecution case was presented on some factual basis not supported by the evidence. Without some explanation, the ground is entirely meaningless. Only a reference to the written submissions identifies points the appellant now seeks to make in support of the ground. Before I turn to analyse the appellant's written submissions, it is necessary to summarise the case and how it was conducted. However, before I begin the summary, I should foreshadow that in my view the written submissions:

(a)	rely on speculation to support the ground;
(b)	invite the court to accept one view of the evidence in preference to another view of the evidence that it was open to the jury to accept (in circumstances where there is no ground that the verdict of the jury was unsafe having regard to the evidence);
(c)	seize upon a comment by counsel for the respondent at the hearing of this appeal about one aspect of the evidence as 'confusing' when, in my opinion, the evidence was not at all confusing;
(d)	rely upon a minor difference in detail between the prosecutor's opening statement and the evidence of a witness;
(e)	ignore the fact that there was no issue raised at the trial in relation to a point the appellant now seeks to rely upon in support of the ground (and which seeks to contradict what was, if not a concession made by senior counsel for the appellant, then a readiness to accept that there was no issue);
(f)	seize upon a minor misstatement of the evidence by the prosecutor in his closing address, ignore the fact that the same misstatement was made by counsel for the appellant and ignore the fact that the jury was correctly directed that what was said by either counsel did not amount to evidence.

The case at trial

20            Counsel for the prosecution, in his opening of the case, outlined the

evidence that was to be given by Mr Abell who was the passenger in the appellant's vehicle. The prosecutor said that after the appellant had driven

[2009] WASCA 72

PULLIN JA

her vehicle to the town rubbish dump, they left the rubbish dump and commenced the journey back to Roebourne; they travelled along Cherratta Road which was the name given to the rubbish dump road; that she was talking to Mr Abell and looking to her left towards him while she was talking. The prosecutor then said (ts 68 - 69):

Mr Abell, who was sitting in the passenger's seat, noticed as they approached the intersection that there were some vehicle lights approaching from, if one looks from the point of perspective they are, his right hand side. The accused continued to talk to him, continued looking at him, and the other vehicle got closer and without turning around and looking to the right, the accused started to pull out into the intersection. She continued looking towards Mr Abell as she did that.

The other vehicle had started to move towards, if you like, what would be the wrong side of the road for it, moved over to the right, in order to avoid the accused's vehicle and Mr Abell braced himself for a crash. The accused saw the vehicle, the other vehicle, at the last moment and said, 'What do I do?' and she then drove straight across the highway, in other words, kept on in the direction she was going, onto a embankment that is there with her wheels up on that. She stopped just before she went over the embankment.

The other vehicle somehow missed her and drove around, managed to get past and drive around the front of her vehicle as it was travelling down North West Coastal Highway, but as the other vehicle managed that manoeuvre and got past and tried to back on the road in the right place, the driver lost control and went onto an embankment on what was effectively the south-western side of the highway, went over the embankment and rolled over.

That vehicle was being driven by Mr Marshall Bobby and his de facto was the passenger in the front seat of that vehicle. It was a landrover and he had seen the accused's vehicle approaching the T-junction. In recognition of that fact he had dipped the lights on the landrover which he had on and, as I say, when it pulled out in front of him, he managed somehow to get around the front of it, but then went to the left down the embankment and rolled over.

Josie Tumbler was thrown from the vehicle and suffered multiple injuries. Those injuries included a number of breaks. She had severe chest injuries, severe abdominal injury along with skeletal injury including bony pelvis fracturing and long bone fracturing. She was badly injured.

21            The prosecutor said that Josie Tumbler lapsed into unconsciousness

and died at the scene after receiving CPR administered to her by a police
officer.

[2009] WASCA 72

PULLIN JA

22            The first witness then called was Mr Bobby, who was the driver of

the other vehicle. He said that he was driving in North West Coastal Highway into which the rubbish dump road ran as a T-junction. His passenger was Josie Tumbler. His evidence of the incident in chief was brief and it was as follows (ts 74 - 76):

Can you tell just tell us in your own words what happened please?---I was driving along the road and

Just slowly. You were driving along the road. Then what happened?---Another car turning at - come from the T junction, from the turn.

Another car came from the turn?---Yeah, in front of me.

In front of you. All right. [W]here did the other car come from?---From

Cherratta Road.

Cherratta Road. Where does Cherratta Road go to?---To Woodbrook and
Cherratta.

Okay, so you are coming down North West Coastal Highway. You are coming towards Roebourne or away from Roebourne?---Toward Roebourne.

You come near the junction of Cherratta Road. Is that right?---Yeah.

This is where you saw this other car?---Yep.

You said it came out in front of you?---Yes.

Did you have any lights on?---Yeah.

Were they on high beam, low beam or what?---Low beam

On low beam. All right. Had they been on high beam earlier?---Yeah, earlier, but I seen the car close.

You saw the car close and you put them on low beam, did you?---Low beam.

Yes?---Low beam.

Yes, all right, so the car pulled out in front of you. How fast were you travelling?---I don't know.

Were you going fast, slow, medium? How would you say?---I don't know.

You saw this other car come out in front of you. What did you do?---I tried to - went around it.

[2009] WASCA 72

PULLIN JA

You went around it?---I ended up in a ditch.

Yes. You went around the other car and ended up in a ditch. When you went around the other car did you go in front of the other car or behind the other car?---Behind.

Behind, so when you went past the other car, was it on your right hand side or on your left hand side?---It was on my right hand side.

On your right hand side. Okay. Did you see what sort of car it was?---No.

No, so as you went behind the car, where did you go?---I went off the road in a ditch.

23            In cross-examination he was attacked as to his credit and evidence

was drawn out that the vehicle he was driving was not in good condition. As to the accident itself, there was limited cross-examination. The following is the relevant extract from cross-examination (ts 80):

So you had been to Five Mile and you were coming back. You know where the tip, the dump road is, don't you?---Yeah.

You saw another car parked there?---He just come along.

The car was coming along?---Yeah.

It stopped, didn't it?---(indistinct) only stopped when I went (indistinct)

Did you have your lights on?---Yeah.

How fast were you going?---Can't remember.

You were going pretty fast, weren't you?---I don't know.

70, 80?---About 60, yeah.

About 60? You were driving on the wrong side of the road, weren't you?---No. I was on the left hand side.

You were on the left hand side of the road. You weren't on the right hand side?---No.

Were you going to the tip?---No. I was going

H H JACKSON DCJ: Mr Percy, I think it might be time given other things, for a short break.

PERCY, MR: We will have a short break. All right.

1. After the break, the following questions and answers appear in the transcript (ts 82 - 83):

[2009] WASCA 72

PULLIN JA

H H JACKSON DCJ: Mr Bobby, just listen carefully, take your time and we will go on with the questions. You say you were going along from five miles towards dump road with your lights on?---Yes.

Maybe doing 60 kilometres?---Mm.

Do you thin that's about right?---Yep.

And you saw the other vehicle?---Yeah.

But you were not on the wrong side. You were on the correct side?---Yeah.

Okay. Yes, Mr Percy.

PERCY, MR: What do you say the correct side is, your left hand side?---Yeah.

Is that what you say?---Yeah.

If I'm wrong, you tell me, but I'm putting to you that you were on the right hand side of the road. No?---No.

No? Okay. And you started to drive towards the other car, didn't you, started to head straight for it?---There's a T junction there.

There's a T junction. Didn't you start driving towards the other car?---(indistinct)

Were you looking where you were going?---Yeah, straight ahead.

You were just going straight ahead?---Yeah.

And you say the other car just pulled out in front of you, did he?---Yeah, in front of me, yeah.

Which way would that car have to go to go to Roebourne?---Turn on your right.

It would start to do a right hand turn, wouldn't it?---Yeah.

Did it start to do a right hand turn?---Yeah.

You see, I suggest to you it went straight ahead?---No. It turned.

Did it? Are you sure you were watching where you were going?---Yeah.

Was the car travelling okay, steering okay?---No. Stiff.

Stiff, was it?---Yeah.

What about the wheels? How were the wheels travelling, okay?---Yep.

[2009] WASCA 72

PULLIN JA

No problems with them? Didn't have a roof, this car, at all, did it?---No.

No seat belts?---No.

How were the brakes in the car?---Not that good.

Not that good. You see, what I'm suggesting is you drove and you were driving straight in a straight line on a collision course with the other car. Is that right?---Yeah, but I turned.

You turned?---I ended up in a ditch.

You didn't hit the other car, did you---No.

The cars never hit each other?---You do if you have a crash.

Yes, but they didn't this night, did they? They didn't hit?---No.

Did you go around the front of the car or round the back of the car?---The back.

The back. Are you sure you went round the back?---Yeah.

That's true, isn't it? You didn't go round the front?---No.

Have you ever told anyone you went around the front of this car?---Yeah.
I told the cops.

25            He was then shown a statement which was taken by the police

sometime before the trial which revealed that he said that he swerved to
the right and drove around the front of the other car.

1. At ts 85 it was revealed that he was stunned by the accident, that 'it all happened pretty quick' and that:

   You really swerved to the left and went round the back of the car, didn't you?---Yep.

   And you lost control. Is that right?---I don't.

27            The next witness was Mr Abell, the passenger in the appellant's car.

He said that not far from the intersection, he saw the other vehicle, or rather saw its lights coming from the right-hand side; that the appellant having reached the intersection 'just pulled out and then that's when I said, 'Look out,' and she sort of sped up to get out of the way and we nearly went over the bank on the other side'. The transcript also reveals:

As she went into the intersection, where was she looking?---Well, she was still talking to me and looking at me.

[2009] WASCA 72

PULLIN JA

Still talking to you and looking at you and you yelled, 'Look out'?---Yes.

1. At ts 96 the following appeared:

   O'SULLIVAN, MR: All right. What about the other vehicle? What did you see it do?---Well, it sort of swerved then to miss us and all I saw was a - well, I thought I heard the sound of a vehicle rolling down the bank. I assumed it had gone over the edge.

   Okay, so you tell us it swerved to avoid you. Which way did it swerve?---In towards the dump road.

   Did that mean it was passing in front of you or behind you?---Would've passed behind us.

   Behind you?---Yeah.

   All right, and as that happened, I suppose you lost sight of it immediately?---Yes.

   So you have got onto the other side of North West Coastal Highway and you have stopped on the embankment. What happens then?---I said to her to back up so we could go and see if they were okay and she said no and just proceeded to drive off.

2. At ts 100 - 101 in cross-examination the following appears:

   You thought she was driving in a responsible manner?---Reasonably responsible, but she still should have watched the intersection.

   I put to you you are mistaken about this?---No.

   No?---No.

   You saw the vehicle coming from your right. Is that right?---That is true.

   And it appeared to be on the wrong side of the road?---It appeared to be.

   Can you have a look at that diagram behind you? You see there's a couple of sets of red marks which might be interpreted as tyre marks?---Yeah.

   Do you see one that ends up in the ditch position?---This one?

   Yes?---Mm.

   They come from over towards the other side of the road, don't they, on the plan?---Yes.

   And if they were to be interpreted as tyre marks and indicating the position of the vehicle, would you accept that was where the other vehicle was coming from in a general sense?---Well, according to that, yes.

[2009] WASCA 72

PULLIN JA

No. According to your memory?---When I first saw the vehicle, it appeared to be on the wrong side. As it got closer to the intersection, you could see that it was on the correct side of the road.

That's the case, isn't it, that it had come from the incorrect side of the road and it started to come towards your vehicle?---No. It never swerved towards us at all. We - - -

It swerved. I'm putting to you it started to head in your direction?---Not until after she pulled out of the intersection.

Not until after she pulled out, I see. Where do you say you actually stopped in terms of that diagram?---We came up to the intersection. She stopped there then started to pull out then that's when the other vehicle was coming about there and she pulled across.

So is it your evidence that initially the vehicle was on the wrong side of the road?---When I first saw the lights of the vehicle, yes, it appeared to be on the wrong side.

And then as you pulled up, it appeared to have corrected itself, to come to the correct side of the road?---As it got closer to the intersection, yes.

Would that not indicate a shift from the right hand side over towards the left hand side as it got closer to you?---That would appear so.

Yes. Did that not give you the impression it was heading straight for you?---No. That's before it got to the intersection. If we had've stopped, it would've kept going straight ahead. It never at any time made any attempt to turn into that road.

But you did stop, didn't you?---Yeah, then she pulled straight out.

How long were you stopped for?---Very short period of time; maybe a few seconds.

You could easily see this vehicle, couldn't you, coming from the right?---That's correct.

What I'm putting to you is that the vehicle started heading straight towards you?---No.

No?---No.

And that as it did so, did Dr Dekker say something to you?---No. She was talking to me about things and then she just pulled up at the intersection and started to drive off and that's when they went, we pulled out and she eventually saw the car. That's when she said, 'What do I do?' and we sped up and almost went over that embankment.

[2009] WASCA 72

PULLIN JA

You didn't say, 'What do we do?' as it started to head towards you?---No.

That's after we moved off the intersection.

How fast was this vehicle coming at you?---I don't know, probably 60

70 K's, something like - - -

60 70 K's?---Yeah, something like that.

Fairly coming, fairly travelling. Is that right?---Yeah, it was moving at a reasonable pace.

1. And at ts 102:

   The car was coming at 70 kilometres an hour. What I'm putting to you is that?---Well - - -

   - - - this vehicle started to come at you at about 70 kilometres an hour and it came from one side of the road to the other, got to Dr Dekker who drove very quickly on the other side of the road in an attempt to avoid it? Isn't that what happened?---No.

   You would accept, though, that the vehicle did appear to change course, didn't it, as it came towards the intersection?---It appeared to have changed to its correct side but it was still travelling in a straight line.

In a straight line towards you, wasn't it?---Straight line towards the Central
Coast Highway (sic).

Did you not form the view that there was going to be a collision as you were stationary at that intersection?---Not while we were stationary. Only after we'd moved. I then realised that a collision was going to occur.

Can you swear to the fact that she was speaking to you while you were stopped at that intersection?---Yes.

That she was looking at you?---Yes.

I suggest to you she was looking both ways?---No. She was facing me, looking at me most of the way up that road and we were talking and we were talking about other things, not about that.

1. At ts 103 the following appears:

   Well. Now, you had a look, didn't you, at the car that was approaching once you had stopped?---All I saw was a light. I did not see what sort of vehicle it was.

   But you saw it was on the wrong side of the road?---By the lights.

   That was after you had stopped, wasn't it? By the time you stopped, it was on the correct side?---Yes.

[2009] WASCA 72

PULLIN JA

What I'm putting to you is that - I'm asking you this: did you not form the impression there was going to be a collision at the point when you were stopped?---No. It wasn't until after we moved off.

She drove forward quickly, didn't she, and the other vehicle got around behind her?---That's correct.

She wasn't executing a right hand turn at the time, was she?---No. We sort of went straight across the intersection, up onto that embankment.

1. Later in his evidence he explained how the appellant tried to persuade him to give a false story about what happened.

33            A Mr Delmore then gave evidence. He was a vehicle licensing

officer. He examined Mr Bobby's vehicle and relevantly found that it was in poor mechanical condition, that the right front tyre on his vehicle was of an incorrect size and that it would cause the vehicle 'to pull to the right' which would have the effect of making the steering 'a little bit heavier' or 'stiff'.

34            Senior Constable Phillips next gave evidence. He had been stationed

at the Roebourne Police Station and on the day of the accident and after the accident, he went to site and relevantly, using yellow chalk, marked on the road tyre marks which led from Mr Bobby's vehicle back along the highway. These markings were shown in a photograph which became exhibit 4 and appeared to start somewhere after a 60 km per hour sign shown in that photograph. When he was asked how far back the marks that he observed went back into North West Coastal Highway, the questions and the answers appear at ts 142 - 143 and they read:

Using your memory and the photo to that extent could you just translate onto the map if you would just where the tyre tracks go so that we can see it?---The tyre marks head in an easterly direction on the North West Coastal Highway. I would have started from here and worked out that way.

Looking at the photograph they seem to follow a sort of a looping pattern?---They do, the follow - - -

They don't go straight?---Yes.

So could you just sort of track that if you like along there?---It would be from there in that sort of pattern.

How far do they go back into North West Coastal Highway?---According to the map, 38.7 metres on the right-hand side and 27.1 metres on the left-hand side the way the vehicle would be travelling.

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I'm sorry, can you just show us where that is on there?---The top one

38.7 metres and the bottom one 27.1 metres.

That's from out there?---From there, yes.

In the photograph they seem to curve back toward, if you like, the correct side of the road if you're travelling down North West Coastal Highway east to west. Is that right in the photo. Have a look at the photo. They seem to go out onto what would be the wrong side of the road and - - -?---That's correct, they seem to go out and - - -

And then come back in again?---Then come back in.

Is that right?---Yes, that's right.

And that's the way you saw it?---Yes.

Thank you. I don't think you took that photo?---No, I didn't take any photos.

35            Senior Constable Pillage then gave evidence. He attended on site on

1 May 2002 as a member of the Major Crash Investigation Section of the Western Australian Police Service. He went to the scene of the accident with Constable Phillips. He observed the tyre marks which were pointed out to him by Constable Phillips and he added pink fluorescent paint over the top of some of the yellow chalk marks and these were used to create the plan of the area.

36            It is clear from the plan that the depiction of the tyre marks made by

Mr Bobby's vehicle do not show all of the tyre marks as marked by Constable Phillips with his yellow chalk. Constable Phillips was asked how long the tyre marks were but he never answered the question, he merely referred to the plan which depicted the tyre marks marked by Constable Pillage and read information off the plan about the length of those tyre marks. It would be quite wrong to speculate about the full length of the tyre marks. However, if (impermissibly) one scales off the tyre marks shown on the plan which are said to be 38.7 metres for the right hand made by Mr Bobby's right-hand tyre and measured back using those marks as to the 60 km per hour sign, it is less than 80 metres from the intersection. At 60 km per hour which was the speed at which Mr Bobby was travelling, ie 16 metres per second, Mr Bobby was only something less then five seconds away from the intersection when the appellant began her move out onto the road. This is impermissible and speculative reasoning and is impermissible in the same way as the appellant's contention which is revealed later in these reasons that

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Mr Bobby lost control of his vehicle before being forced to take evasive action by the appellant's dangerous driving.

37            As to the evidence of the tyre marks, Constable Pillage said that they

were rolling tyre marks and this had to be understood as meaning something other than the tyres simply turning in an ordinary way. Even without evidence one could take judicial notice of the fact that ordinary turning of tyres on a road does not leave visible marks. However, there was direct evidence on the point from Constable Pillage at ts 169. He said that the tyres would leave a mark when they started to slide sideways, as well as rotating forward. He gave them another description, namely 'critical speed marks' at ts 169, but in ordinary parlance, the tyres were simply skidding sideways.

38            The other prosecution witness was Senior Constable Treloar who

attended at the accident scene before the ambulance and gave CPR to
Ms Tumbler before she died.

39            The appellant gave evidence. She claimed contrary to Mr Abell's

evidence that she was watching out; that Mr Bobby's vehicle came towards her and that she took evasive action. That evidence was clearly not believed by the jury despite some witnesses as to her good character.

40            In his closing address to the jury, the prosecutor said (ts 266 - 267):

[The] way they ascertain whether these are in fact the correct tyre marks of whatever tyre marks might be out there is, they start at the known point which is where the vehicle ended up, where it actually hit the kerb where you can see it and then you just follow it back. It's not rocket science. It's pretty simple. Just follow it back and what you can see here is this tracking of Mr Bobby's vehicle and it has passed, you would like, and the evidence helps you with that, behind the vehicle being driven by Dr Dekker and Dr Dekker's vehicle has finished over here.

…

He's out here. He has seen her. He has seen her and he has tried to brake and it has pulled him away to the right because of the wheel and he has corrected that and he has gone in there to the left to miss her and he has managed to that. He has managed to control the car so that he could do that because she was right out there and she has then pulled straightaway into the kerb to avoid him and he has passed behind her.

I think when you look at it and analyse it, that's the only way this particular incident could have happened. When you look at the yellow tracking on the picture - and that's a picture showing you the road back towards Roebourne, so this is the direction from which Mr Bobby is

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coming. He's coming down this way and you can see that in fact the yellow tracking goes further back on the North West Coastal Highway than is actually drawn on the plan. The plan comes in a little bit later. The plan comes in down here somewhere, but you have this other tracking up here.

What you can see is, that tracking turns around at its top end. It's moving back onto what you might call the correct side of the road, so you can see what's happened. Mr Bobby's driving down North West Coastal Highway approaching this intersection. All of a sudden he sees her out in the intersection. He has to take evasive action. He hits his brakes and what happens? He swings to the right and he has to correct it and pull it back and that's what happened and that's why you get that curve that's going in that direction there. That's exactly, you may think, what happened, so you have those aids to you, ladies and gentlemen, to decide.

41            The only comment which need be made about this is that there is no

evidence that Mr Bobby 'tried to brake' but it is a mistake which was made not only by the prosecutor but also by senior counsel for the appellant during his address to the jury at ts 274 - 275 when he said:

[T]he plan indicates where he started to take evasive action obviously and you heard the evidence of Officer Pillage yesterday indicating that that's when you start to leave marks, at speed, changing direction, braking, matters such as that, and that's where those marks are, but that really doesn't exclude anything.

42            I have added the emphasis. Although he referred to the plan, senior

counsel was referring to the marks on the road and it was clear that he accepted that where the marks began, that was where Mr Bobby began to take evasive action and lost control. This reflects the cross-examination set out above where senior counsel for the appellant put it to Mr Bobby that he lost control after he took evasive action by swerving.

43            The trial judge in his summing up accurately put the case for the

appellant which is that she took action to avoid Mr Bobby. There is no
criticism made of the trial judge's summing up.

44            This review of the case reveals that save for one detail, nothing

changed in the prosecution case from beginning to end. The detail is that counsel for the prosecution opened saying that Mr Bobby's vehicle passed in front of the appellant's vehicle, whereas his evidence was that it passed behind the vehicle. It is obvious why the prosecutor opened in that way, because a police statement given by Mr Bobby said that his vehicle did pass in front of the vehicle. However, Mr Bobby's sworn testimony was that the vehicle passed behind the appellant's vehicle and the independent

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evidence of the marks on the road and Mr Abell's evidence support
Mr Bobby's evidence. That became a non-issue.

45            The real issue was raised by the two accounts of the accident given

by the appellant and Mr Bobby. If the jury believed the appellant, then she could not be convicted. On the other hand, if they believed Mr Bobby, it is difficult to see how they could have reached a conclusion other than that the appellant was guilty beyond reasonable doubt. Mr Bobby's evidence was to the effect that when he saw the appellant's vehicle starting to move out, he had to take evasive action. Everything happened very quickly and he was stunned after the accident, but the objective evidence of the markings on the road shows that although he did not realise he had done so he first veered to the right sharply enough for his tyres to skid, making a mark on the road and then he turned to the left so that the tyres again left skid marks as he tried to and did avoid the appellant's vehicle by passing to the rear of it. If Mr Bobby lost control after he took action to avoid the appellant's car, that afforded no defence to the appellant.

46            There was no issue between the parties that Mr Bobby had taken

evasive action starting where the marks on the road appeared. The statement of senior counsel for the appellant in the passage from his closing address quoted above at [41] confirms this.

Was Mr Bobby's vehicle out of control before he took evasive action?

47            What the appellant asks this court to accept is that Mr Bobby was out

of control before he saw the appellant's car begin to move out. The written submissions from the appellant contend that the trial judge 'did not mention the now undisputed fact that Bobby's vehicle was out of control some distance before the intersection'. If by this the appellant contends that Mr Bobby's vehicle was out of control before he had to take evasive action, then it is not an 'undisputed fact'. The contention relies on speculation, is against the only evidence given at trial and is contrary to the way the case was conducted by senior counsel for the appellant at trial. The appellant's further submission that Mr Bobby took 'action' to turn to the left for some 'reason unknown' is not supported by any evidence. One can ask rhetorically: did a bee fly into the cabin and distract him, causing him to lose control? Did he bend down to retrieve something from the floor of the vehicle and in doing so lost control? The posing of these questions illustrates the speculative nature of the appellant's submission. To say he got 'out of control', ie, got into a skid for some 'reason unknown' does not make the speculation any better.

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Mr Bobby's evidence was entirely unambiguous. He took evasive action when the appellant's car began moving out. It is a matter entirely of speculation to assert that he lost control for some unspecified reason before he saw her. It was never put to him that he got out of control and began skidding before he saw the appellant's car begin to move out.

48            The most that was put to him was that he was 'driving' on the right

hand side of the road before the accident (which he denied). It is true that Mr Abell said Mr Bobby's vehicle 'appeared' to be on the right side of the road before the appellant's car moved out. That is some contrary evidence about where he was driving, not that he was out of control. Even on that point, it is not open to this court to decide to accept Mr Abell's evidence and reject the jury's acceptance of Mr Bobby's evidence. That was an issue for the jury and it is not the ground of appeal that Mr Abell's evidence should be preferred to that of Mr Bobby. Furthermore, I repeat that counsel for the appellant accepted at the trial that where the tyre marks showed up on the road, showed where Mr Bobby had started to take evasive actions. See [41] above. The fact that Mr Bobby lost control in the sense that his wheels began skidding and marking the road after he took evasive action does not in any respect avail the appellant. If the appellant caused Mr Bobby to take evasive action (rather than Mr Bobby causing the appellant to take evasive action), then she caused him, to cause his vehicle, to begin skidding and to lose control, resulting in the death of the passenger. That was the main, if not the only, issue at trial.

Was Mr Bobby's vehicle 'always going to take the course it did'?

1. The appellant in the written submissions put the 'out of control' argument in another way when she says that:

   According to the unchallenged expert evidence, Bobby's vehicle was always going to take the course that it did whether the appellant drove into the intersection or remained stationary.

   It is not true that there was unchallenged or any evidence to this effect. The submission completely ignores the evidence of Mr Bobby, that he took evasive action when the appellant drove out into the road.

A submission by counsel for the respondent on appeal

50            The appellant also sought to support the ground by pointing to a

submissions made by counsel for the respondent during the hearing of the appeal. At one stage Mr Dempster appearing as counsel for the respondent said that Mr Bobby's evidence 'is a little confusing' (ts 51) and this is referred to in the appellant's written submissions which then

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contend and that the critical question was 'whether the action he took, turning hard to the left, was because he was on the wrong side of the road, for example, for some other reason unknown other than the appellant pulling out'. The written submissions then led onto the contention that Mr Bobby lost control of his vehicle before he took any action to avoid the appellant's vehicle. I have already said that this is speculative and against the evidence.

51            Why the counsel for the respondent would have said that Mr Bobby's

evidence was 'a little confusing' escapes me. With respect, it was not confusing at all. Just because the tyre marks go first to the right and then to the left, it is not confusing. Mr Bobby's vehicle was proved by expert evidence to have a tendency to pull to the right but no case was ever advanced and no questions were put to him suggesting that before he saw the appellant's vehicle he got out of control of his vehicle.

Did Mr Bobby's vehicle pass in front or behind the appellant's vehicle?

52            The appellant then sought to support his ground by pointing to the

prosecution's opening address when he said Mr Bobby would give evidence that he deliberately drove in front of the appellant and yet his testimony was that his vehicle went in front. There is nothing in that change in the evidence which gives rise to any miscarriage of justice. Kennedy, Ipp and Owen JJ in Huynh v The Queen [1999] WASCA 45, when giving an example of the 'truism' that the jury has to consider the case established by the evidence, not what is said by counsel in opening said [30]:

To take an example, it cannot be the case that because a Crown witness has not 'come up to proof' the prosecution must fail because what remains differs from the way it was put in opening. Of course, a departure from the opening may be the subject of comment at the appropriate time. There will also be occasions on which the trial judge is obliged to hold the Crown to the case it said in opening that it intended to advance. … Much will depend on the materiality of the departure and the effect it would have on the ability of the accused to put his or her defence squarely to the jury.

53            The fact that Mr Bobby had said in his evidence that the vehicle

passed in front of the appellant's car in a statement before trial explains why the prosecutor opened on that basis. The fact that Mr Bobby's testimony was that his vehicle passed behind the appellant's vehicle is an entirely insignificant point. The existence of Mr Bobby's earlier statement emerged because counsel for the appellant wanted to throw doubt on Mr Bobby's credibility by showing that he said one thing to the police and

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something else in his evidence. His testimony was, however, entirely
borne out by the evidence of Mr Abell and the marks on the road.

54            The rest of the appellant's submissions refer to some observations

made by the prosecutor in closing which are simply observations about the evidence and his view of the evidence which were entirely unexceptional. What the prosecutor said was not evidence.

The reference by the prosecutor in his closing address to Mr Bobby's braking

The appellant then submits that 'nor was there any evidence upon which the learned prosecutor in his closing address could assert that Mr Bobby's vehicle initially veered to the right because he tried to brake after seeing the appellant's vehicle drive into the intersection'. The appellant submitted that Mr Bobby gave no evidence that he applied the brakes to his vehicle. That is so, and as I have already pointed out, that was a mistake by the prosecutor, and a mistake also made by the defence counsel. What was said by both counsel was not evidence.

1. In my opinion, there is no merit in any of the points advanced in support of this ground of appeal and it should be dismissed.

The application to adduce additional evidence on ground 1

56            I would refuse leave to adduce additional evidence. The proposed

evidence was not new or fresh, as Miller JA explained. It merely identifies what was fully understood at trial. I would dismiss ground 1 for the reasons given by Miller JA.

Result
57	As a result, I would refuse to grant an extension of time to appeal because there is no merit in the grounds of appeal.
58	MILLER JA: The appellant was charged in the District Court at Karratha with the offence known as dangerous driving causing death. It was alleged that, on 27 April 2002 at Roebourne, she drove a motor vehicle on a road in a manner that was, having regard to all the circumstances, dangerous to the public or to any person, and thereby caused the death of Josie Tumbler. The offence alleged was one against the provisions of s 59(1) of the Road Traffic Act 1974 (WA).
59	The appellant pleaded not guilty to the offence and was tried before a
judge and jury in the District Court at Karratha between 5 and

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7 December 2005. She was convicted by verdict of the jury and fined $10,000. She was disqualified from holding a motor vehicle driver's licence for a period of 2 years.

60            After her conviction, the appellant instructed her solicitors to appeal.

She received advice from her solicitors, from her trial counsel (Senior Counsel), and from two other counsel (one of whom was a Senior Counsel), that there were no reasonable prospects of a successful appeal against conviction. The process of seeking such advice took several months. Thereafter, the appellant changed solicitors on a further two occasions and eventually obtained an opinion to the effect that she should appeal. That opinion came from counsel who represented her at the hearing of the appeal.

1. A notice of appeal (dated 17 June 2008) was filed on 18 June 2008, which was approximately two and a half years out of time. The notice was accompanied by an application for extension of time within which to appeal. It was supported by a substantial affidavit of the appellant, to which there were numerous annexures. They included the different opinions that she had received, one of which was 63 pages long. The critical opinion was that of her appellate counsel, which recommended a single ground of appeal on the basis that the verdict of the jury gave rise to a miscarriage of justice, having regard to new evidence which had emerged since the trial.

62            An application for leave to adduce fresh evidence was filed on

24 July 2008. The fresh evidence consisted of affidavits of Robert John Lyne Davey, a forensic crash consultant, Thomas Francis Percy QC, defence counsel at the trial and Sean Walter O'Sullivan, prosecuting counsel at the trial.

63            On 14 August 2008, I ordered that the application for leave to appeal

and the application for leave to adduce new evidence should be heard together with the appeal. On 18 August 2008, I ordered that the application for extension of time within which to appeal should also be heard together with the appeal.

64            On 14 August 2008, programming orders were made in relation to

the filing and serving of affidavits and the possible cross-examination of Mr Davey. No affidavits were filed by the respondent in answer to any of the affidavits filed on behalf of the appellant and no application was made to cross-examine Mr Davey.

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65            At the hearing of the appeal, the court was presented with a further

affidavit in support of the application for leave to introduce fresh evidence. It was another affidavit of Mr Davey (sworn 28 January 2009), which sought to explain a paragraph of his main affidavit.

66            At the hearing of the appeal, the court indicated that it would receive

the material and rule at a later date on whether or not it should be admitted
on the appeal.

Application for extension of time

1. Almost two and a half years' delay in the filing of a notice of appeal is a very lengthy delay.

68            The appellant contends that although the delay has been lengthy it

can be explained because the 'fresh' evidence relied upon by the appellant was not disclosed to the appellant prior to the commencement of her trial. Further, it is said that the appellant always wanted to appeal and, although she received a number of adverse opinions from different counsel, it was not until Mr Robert Davey reported on 1 February 2008 that fresh evidence came to light which might be the subject of an application for extension of time within which to appeal.

69            The appellant contends that the lengthy delay can be adequately

explained on this basis. It is said, however, that if that is not the view of the court then the relevant question is whether there would be a miscarriage of justice if the extension of time was not granted.

70            The delay in this case was two years and five months, or nearly two

and a half years. That is a gross delay. The circumstances leading to the delay do not seem to me to have been exceptional. Although the appellant always wanted to appeal, but was unable to get a favourable opinion, the fact remains that no appeal was lodged until 18 June 2008, and then only on the basis that there was fresh evidence which justified the appeal. As these reasons will later demonstrate, the evidence could not be characterised as either fresh or new but was, in reality, known at all times.

71            Therefore, it seems to me that this is a case in which there could be

no extension of time unless it appears that there has been a manifest miscarriage of justice. The principles have been expressed many times and were restated by me in R v The State of Western Australia [2008] WASCA 127 at [9] - [11] in the following terms:

The principles upon which an extension of time will be granted where there has been gross delay are clear. They were stated by Burt CJ in

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Narkle v The Queen (Unreported, WASCA, Library No 6108,
2 December 1985) as follows:

This court has on a number of occasions pointed out that the time limit fixed by s 695(1) of the Code must be taken seriously and every effort must be made to comply with it. The section contains no express criteria controlling the court's discretion to extend time and in that sense it can be said that the discretion is unfettered. But that is not to say that it will be exercised as of course. It should only be exercised upon facts shown which in the judgment of the court appear positively to call for its exercise and the onus upon an applicant for extension of time will of course increase as the time goes by. A delay of four and a half months, as in this case, can only be described as gross and it would be necessary to show very special circumstances indeed to sustain the exercise of this Court's discretion to extend time to that extent. Those circumstances may explain and excuse the delay or they may relate to the grounds of appeal and indeed the latter consideration may become and will become dominant should it appear that there has been a manifest miscarriage of justice. (2)

The appellant's entitlement to appeal in this case was governed by the provisions of s 695(1) of the Criminal Code, which required notice of appeal within 21 days of the date of convictions. Section 695 of the Criminal Code has since been repealed and replaced by s 28(3) of the Criminal Appeals Act 2004 (WA). An appeal must still be commenced within 21 days of conviction.

The principles set out by Burt CJ in Narkle remain applicable: see Gavin v The Queen (1992) 6 WAR 195, 198 - 199 (Malcolm CJ); Ejueyitsi v Maloney [2007] WASCA 3 [8] (Wheeler JA).

Ground of appeal

72            The ground of appeal, which is annexed to the appellant's case, is a

single ground. It is shortly expressed, but it contains a number of
particulars:

Ground 1

The verdict of the jury gave rise to a miscarriage of justice having regard to the fresh evidence that has emerged since the trial, which evidence was not disclosed by the prosecution and was not known by the Appellant at the time of the trial.

Particulars

(a) The prosecution's factual basis for alleging that the Appellant's driving caused the death of Josie Tumbler ('the deceased') was that she drove into the path of the vehicle that the deceased was in

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which caused the driver of that vehicle to swerve in order to avoid

a collision and run off the road;

(b)	Tyre marks were left on the road by the vehicle the deceased was in which showed the trajectory of the vehicle before it ran off the road;
(c)	The Appellant's version of the incident was that she had stopped at the intersection when she saw the other vehicle approaching on her right on the incorrect side of the road. It then began to veer left towards her and in order to avoid a collision she drove into the intersection and the other vehicle drove behind her and veered off the road;
(d)	The critical issue in dispute was whether the driver of the other vehicle veered left in order to avoid a collision with the Appellant's vehicle as she drove into the intersection, or whether this vehicle's veering to the left was independent of the Appellant's manner of driving;
(e)	The deposition of Senior Constable Troy Pillage, the investigating officer from the Major Crash Investigation Unit, was part of the prosecution brief. His deposition referred to the tyre marks on the road left by the vehicle that the deceased was in as having appeared to be made by 'rolling tyres'. This was the evidence he gave in-chief at the trial. It was only when he was cross-examined that he explained that these tyre marks had been left because the vehicle had reached 'critical speed', causing the vehicle's tyres to lose traction and slide sideways;
(f)	Significantly there was no disclosure by the prosecution either prior to, or during the trial, that the driver of a vehicle that had reached 'critical speed' is unable to steer the vehicle as it is effectively out of control.
(g)	At the Appellant's trial in February 2008 in the Magistrates Court where she was facing, inter alia, a dangerous driving causing bodily harm charge arising out of the same incident, the Appellant called Mr Robert Davey, a motor vehicle crash expert, to testify that the vehicle the deceased was in had reached 'critical speed' and was therefore 'out of control' some distance before the tyre marks as depicted on a plan tendered at the District Court trial ('the plan'). If this evidence was presented in conjunction with other evidence led by the prosecution at the District Court trial it was open to find that the vehicle the deceased was in was out of control before the Appellant had stopped at the intersection;
(h)	In his evidence at the Magistrates Court trial Senior Constable Pillage agreed with the above proposition advanced by Mr Davey and also agreed that the plan did not depict the full length of the

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tyre marks left by the vehicle that the deceased was in by
somewhere between 35 to 40 metres;

(i)         Had the evidence been available to the jury that the vehicle the deceased was in was 'out of control' at a point some distance from the intersection there was a significant possibility that the Appellant would have been acquitted.

1. At the hearing of the appeal, leave was granted to add a further ground, as follows:

   Ground 2

   The prosecution case was presented on a particular factual basis that was not supported by the evidence and as a result a miscarriage of justice has occurred by reason of the jury's finding of guilt.

74            Because this ground was only advanced towards the end of the

hearing (and as a result of interchange between the bench and bar), orders were made that written submissions in support of it should be filed by the appellant by 24 February and responding submissions should be filed by the respondent by 27 February. Those submissions have been received.

The course of the trial

75            To understand the grounds of appeal, it is necessary to describe in

some detail the prosecution case against the appellant and the evidence adduced in support of it. I will refer also to the case advanced for the appellant and the evidence adduced in support of that case.

The prosecution case

76            At the outset of the trial, the prosecutor outlined to the jury the case

which it would seek to prove. It was that on 27 April 2002 the appellant, assisted by a neighbour, Roy Abell, had taken rubbish to the Roebourne rubbish dump, which is off Cherratta Road (also known as 'Dump Road'). This road terminated at North West Coastal Highway, where there was a T-junction. A plan of the location, which was tendered at trial, is annexed to these reasons (marked exhibit 1 at the trial). The reference to Cherratta Road on the plan is erroneous in the context of the evidence, because Cherratta Road was said to have been that which led to the tip and which formed a T-junction with North West Coastal Highway. In other words, Cherratta Road, as shown on the plan, should read North West Coastal Highway.

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77            A little after 6 pm, the appellant and Mr Abell drove away from the

tip. They were travelling in the appellant's Hilux utility. The appellant was the driver of the utility. The vehicle proceeded in a north-easterly direction along Cherratta Road (or Dump Road), towards its T-junction with North West Coastal Highway.

78            The prosecution case was that the appellant was driving slowly, but

at the same time talking to Mr Abell who was in the passenger seat. It was said that the appellant continually turned to look at Mr Abell whilst she was speaking. At the junction with North West Coastal Highway the appellant stopped, but it was said that she was still talking to Mr Abell and still looking to her left.

79            There was no stop sign at the junction of North West Coastal

Highway and Cherratta Road, but there was signage on the opposite side of the roadway indicating that drivers travelling north-east on Cherratta Road had to turn either left or right at North West Coastal Highway.

80            The prosecutor said that Mr Abell noticed, from the passenger seat,

lights approaching from his right-hand side. The prosecutor said that the appellant continued to talk to Mr Abell and continued looking at him as this vehicle got closer. It was contended that the appellant did not turn and look to the right at all, but pulled straight out into the intersection, looking at Mr Abell as she did so.

81            The prosecution case was that the vehicle travelling along North

West Coastal Highway started to move towards the right, or its wrong side of the road, in order to avoid a collision. Mr Abell was said to have braced himself for a crash. The appellant was said to have observed the approaching vehicle at the last moment and to have said, 'What do I do?' She had then driven straight across the highway onto the embankment, stopping just before she went over the embankment.

82            The prosecutor said that the other vehicle somehow missed the

appellant and drove around her. It was put that the vehicle had driven around the front of the appellant's vehicle as it travelled down North West Coastal Highway and that as it 'managed that manoeuvre and got passed and tried to [get] back on the road in the right place, the driver lost control and went into an embankment on what was effectively the south-western side of the highway'.

83            The other vehicle was a 1969 Land Rover, which was being driven

by Marshall Bobby. His de facto partner, Josie Tumbler, was in the front seat of the vehicle. The prosecutor said that Mr Bobby had seen the

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appellant's vehicle approaching the T-junction and, in recognition of that fact, had dipped the lights on the Land Rover. When the appellant's vehicle pulled out in front of him, he managed somehow to get around the front of it, but then went to the left down an embankment and rolled over. As a consequence, Ms Tumbler was thrown from the vehicle and sustained multiple injuries from which she died at the scene.

84            The prosecution case was that Mr Abell told the appellant to back up

because the other vehicle had rolled over, but she said, 'No'. It was the prosecution case that she reversed back onto the highway and then drove away, notwithstanding Mr Abell's pleas for her to return to see if anybody was hurt. It was contended that Mr Abell then prevailed upon the appellant to go to the police to report the accident and she did so. They then returned to Mr Abell's house and the prosecution case was that the appellant tried to persuade Mr Abell to give police a different and untruthful version of the events that had taken place. The prosecutor said:

The purpose [sic purport] of that or the effect of that, what she wanted him to say, was that she had to pull out to avoid the other vehicle which was driving straight at her. Mr Abell will say that simply wasn't the truth and he said that he would not lie for her.

85            The prosecutor told the jury that when later interviewed by police the

appellant had said that the accident was the fault of the other driver. He
said:

She basically told police the story that she had tried to get Mr Abell to tell, that is to say, that the accident was effectively the fault of the other driver, that he had driven directly towards her and she had to try and get out of the way; in other words, that it was the other driver's fault.

When she was asked by police, 'Why did you drive away without stopping to offer assistance?' she made what the state says to you is a quite extraordinary statement, 'As a medical doctor I know there would be a bad injury and I know it was a waste of time, so I go to the police so they can help.' The accused is a medical doctor.

What the state says to you is that you can and should take into account the fact that the accused not only failed to stop and render assistance, but she refused to stop and we say that you can take that into account when you are considering who was at fault in this particular incident. Not only did she refused [sic refuse] to stop and help; she did not want to report the matter to the police and she wanted the person with her to tell an untruth about what had happened. She then told police the story which the state says to you is false and they are matters which you can take into consideration.

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MILLER JA

So that is the story. That's what happened. She was not looking. She drove out. She caused this vehicle to run off the road and roll over which had caused the death, the state says, of Josie Tumbler in the circumstances that I have given you.

The prosecution evidence

86            Marshall Bobby gave evidence that late in the afternoon of 27 April

2002, he was returning from the Five Mile to Cheeditha. He was driving Ian Walley's Land Rover on North West Coastal Highway and was accompanied by Josie Tumbler. He gave his evidence in very simple terms. His primary evidence was as follows:

Just slowly. You were driving along the road. Then what happened?---Another car turning at - come from the T junction, from the turn.

Another car came from the turn?---Yeah, in front of me.

In front of you. All right. [W]here did the other car come from?---From
Cherratta Road.

87            Mr Bobby said that his lights had been on high beam, but that he had

changed to low beam when he saw 'the car close'. He did not know at
what speed he was travelling. He then said:

You saw this other car come out in front of you. What did you do?---I tried to - went around it.

You went around it?---I ended up in a ditch.

Yes. You went around the other car and ended up in a ditch. When you went around the other car did you go in front of the other car or behind the other car?---Behind.

Behind, so when you went past the other car, was it on your right hand side or on your left hand side?---It was on my right hand side.

88            When cross-examined by defence counsel, Mr Bobby admitted that

he was driving without a licence and that he was driving a vehicle which
was not 'much good'. It had no seatbelts and bad steering.

89            It was put to Mr Bobby that he was travelling pretty fast, but he

estimated his speed at 'about 60'. It was put to him that he was on the wrong side of the road, but he said that he was not. He said that he was travelling on the left-hand side. The following exchange occurred:

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MILLER JA

If I'm wrong, you tell me, but I'm putting to you that you were on the right hand side of the road. No?---No.

No? Okay. And you started to drive towards the other car, didn't you, started to head straight for it?---There's a T junction there.

There's a T junction. Didn't you start driving towards the other car?---(indistinct)

Were you looking where you were going?---Yeah, straight ahead.

You were just going straight ahead?---Yeah.

And you say the other car just pulled out in front of you, did he?---Yeah, in front of me, yeah.

90            It was suggested to Mr Bobby that he was 'in a straight line on a

collision course with the other car' and he said 'Yeah, but I turned'. He was adamant that he had gone around the back of the vehicle, although he conceded that he had previously told police that he went around the front of it. This, he said, was wrong.

91            Mr Bobby was asked if he remembered what had happened on the

night in question, and he said that he did not clearly remember it. The
following exchange then occurred:

It all happened pretty quick, didn't it?---Yeah.

You really swerved to the left and went around the back of the car, didn't you?---Yep.

And you lost control. Is that right?---I don't

Did the stiffness of the steering have anything to do with that?---Turn the side on it.

Turned on the side?---On the cliff, yep.

92            Roy Frederick Abell said that he had been to the tip with the

appellant. On the return journey, as they came up towards the intersection, the appellant was talking to him and 'nearly all the time she was watching me'. When they got to the intersection she did not look. She just pulled straight out and the other car was coming down the highway. Mr Abell thought that the appellant had actually stopped at the intersection, but said that when she did so she was looking at him. That is, she was looking to her left. Mr Abell was asked whether he could see any other vehicle in the vicinity and he said as follows:

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MILLER JA

Okay, so she's looking at you. Could you see any other vehicles in the vicinity?---Yeah. I could see a vehicle. I could see the lights of a vehicle coming towards us.

From where on the plan?---From the top end of West Coast towards us.

All right, and where did appear to be on the road?---Well, when I first seen it, it appeared as though it was on the wrong side but I don't know because it all happened so quickly.

So on the wrong side, you say, of the North West Coastal Highway there over a bit, over to the right hand side some way?---Yeah.

In what line was it travelling? Could you see where it was going?---Yeah, straight ahead.

Straight ahead, all right, so straight past the intersection you were coming to?---Yes.

All right, and how far back from the intersection were you when you saw that vehicle?---Not that far.

93            Mr Abell was unable to estimate the distance away that the vehicle

was when he first saw it, but estimated it as being about the width of the courtroom in which he was placed. Nobody attempted to state what the width of the courtroom was.

94            Mr Abell said that after having stopped at the intersection, the

appellant just pulled out. He then said, 'Look out' and she 'sort of sped out to get out of the way and we nearly went over the bank on the other side'. He was asked where the appellant was looking as she went into the intersection and he said, 'Well, she was still talking to me and looking at me'.

1. Mr Abell was asked what happened to the other vehicle as the appellant moved into the intersection and he said:

   Well, it sort of swerved then to miss us and all I saw was a - well, I thought I heard the sound of a vehicle rolling down the bank. I assumed it had gone over the edge.

   Okay, so you tell us it swerved to avoid you. Which way did it swerve?---In towards the dump road.

   Did that mean it was passing in front of you or behind you?---Would've passed behind us.

   Behind you?---Yeah.

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MILLER JA

96            Mr Abell then gave evidence in terms of that predicated by the

prosecutor in his opening. It is unnecessary to go into the detail of that
evidence.

97            When cross-examined, Mr Abell rejected the proposition that he was

mistaken about the appellant looking at him and not at the intersection. He did say that the vehicle coming from his right appeared to be on the wrong side of the road. He added:

When I first saw the vehicle, it appeared to be on the wrong side. As it got closer to the intersection, you could see that it was on the correct side of the road.

That's the case, isn't it, that it had come from the incorrect side of the road and it started to come towards your vehicle?---No. It never swerved towards us at all. We - - -

It swerved. I'm putting to you it started to head in your direction?---Not until after she pulled out of the intersection.

98            Cross-examination of Mr Abell clearly proceeded on the basis that

the vehicle, when first seen, was on the wrong side of the roadway, but that the driver corrected the vehicle to bring it back onto the correct side. The thrust of the cross-examination was that the other vehicle was 'heading straight for' the vehicle in which Mr Abell was travelling. This he would not accept. He said that if the appellant had remained stationary the other vehicle would have gone straight ahead. He said that the vehicle, as it came towards the intersection, appeared to have changed to its correct side, but it was still travelling in a straight line.

99            Mr Abell was adamant in cross-examination that when the appellant

pulled 'off the intersection', she was still looking at him. He was
vigorously tested on the point, but held to it.

100          The evidence of Mr Bobby and Mr Abell was followed by that of

four police officers. The first of them was Denham John Delmore who was, in May 2002, an investigator attached to the Vehicle Investigation Unit of Traffic and Operations Support. On 1 and 3 May 2002, he went to the Roebourne Police Station and also the Karratha Police Station to examine two vehicles. One of them was a Land Rover, registration number 1APG 940. This was the vehicle which was being driven by Mr Bobby. Mr Delmore found a number of faults with the Land Rover. It was a 1969 two-door soft-top vehicle, which had a Holden motor and a four-speed, four-wheel drive manual transmission. There were a number of defects which were listed. A number were irrelevant to the case, but

[2009] WASCA 72

MILLER JA

there were some which were particularly relevant. The first was the steering. The left track rod ball joint and both front hub swivel bearings were worn. The result was that there would have been a little more travel at the steering wheel than normal. Mr Delmore said that 'it would take a little bit more to steer the vehicle but … it was only a slight bit of wear. It wasn't excessive'.

101          The second defect related to the tyres. The right front tyre was of an

incorrect size. It was three inches smaller than it should have been and, in addition, it was low in air pressure. The result was that the vehicle would have pulled to the right and the low pressure in the tyre would have made the steering heavier.

102          The third defect related to the brakes. When the foot brake was

applied, it travelled almost to the floor. All four wheels locked, however. A second application of the brake pedal gave a higher brake pedal. The brake booster was secured by wire and a number of defects were found upon inspection of the brake components. It is unnecessary to detail them all. The result was that stopping distance would be increased.

103          The fourth defect related to the absence of seatbelts and incorrect

securing of the front seat. The result of this was that the driver could be restricted from operating the brake and accelerator pedal. If, in an emergency, the driver attempted to apply the brakes and place pressure on the brake pedal all the way to the floor, whilst pushing backwards on the seat, the forward part of the seat would lift up.

104          Mr Delmore said that, given the condition of the vehicle, it would be

necessary to hold the steering wheel fairly firmly to keep the vehicle in a straight line. He described the vehicle as definitely unroadworthy and dangerous to be on the road.

105          Constable Bradley David Phillips gave evidence that he attended the

accident scene, arriving there at 6.57 pm on 27 April 2002. It was dark at the time he got there, but he described the general conditions to be fine and visibility to be good. He observed the Land Rover down an embankment on the south-western side of the intersection and observed that Josie Tumbler was lying beside the Land Rover. She was being attended by another officer. Mr Marshall Bobby was also there.

106          Constable Phillips marked tyre marks and other relevant things with

yellow chalk. The markings that he made are the subject of a photograph which was tendered in evidence as exhibit 4. An enlarged copy of the exhibit is annexed to this judgment. The photograph is a daytime

[2009] WASCA 72

MILLER JA

photograph, which shows yellow markings in an arc from about the centre of North West Coastal Highway to the northern side of the road, and then proceeding towards the southern side. The markings begin at or about a 60 km per hour sign which is erected on North West Coastal Highway.

107          Constable Phillips said that the chalk marks shown on the

photograph were of tyre marks. The constable began his marking where the tyre marks impacted guttering around the end of Cherratta Road, and he then worked backwards following the tyre marks. He described them as heading in an easterly direction on North West Coastal Highway in 'a sort of looping pattern'. He said that they seemed to go onto the wrong side of the road and then come back in again.

108          Constable Phillips was cross-examined about the tyre marks that he

marked. It was put to him that they did not appear to be skid marks and he agreed that they did not. He said that they just appeared to be tyre marks. It was put to him that they were 'rolling tyre marks of a vehicle in motion' and he said that that was what they appeared to be.

139          These conclusions are enlarged upon in affidavit evidence, but, in

essence, Mr Davey's thesis is that the Land Rover, having reached critical speed, was actually out of control at a point in the vicinity of the 60 km per hour sign on North West Coastal Highway.

140          The fresh evidence is therefore said to be that it is now clear from

Mr Davey's examination of the scene and assessment of the evidence, that Mr Bobby's vehicle was travelling out of control from the time it was observed on the incorrect side of the roadway by Mr Abell, which was at a time prior to the appellant's exit onto North West Coastal Highway.

141          The ground of appeal contends that this evidence is fresh evidence

which was not disclosed by the prosecution and not known by the
appellant at the time of the trial.

142          What was disclosed prior to the trial was a statement of

Constable Pillage dated 17 August 2002. It gave an account of Constable Pillage's attendance at the scene of the accident and his observations at that scene. Relevant extracts from the statement are as follows:

10.        I observed numerous tyre marks at this location.

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MILLER JA

11.        The first set of tyre marks appeared to be made by rolling tyres and travelled in a westerly direction and arched around to the south and down an embankment at the intersection of North West Coastal Highway and Cherratta Road.

12.        The second set of tyre marks were straight and appeared to have been made by locked tyres. These marks were travelling in a northerly direction from Cherratta Road across North West Coastal Highway and onto the road verge into the sand where they stopped.

143          It can be accepted that Constable Pillage's description of 'rolling

tyres' could have been the subject of greater elaboration. Constable Pillage ought, in the circumstances, to have explained what a rolling tyre mark was and how it related to the issue of critical speed and loss of control of a vehicle. This was material which was within his knowledge and therefore within the knowledge of the police.

144          It can be accepted that prosecuting counsel was unaware of what

Constable Pillage meant by his reference to 'rolling tyres'. It appears that, throughout the trial, prosecuting counsel remained unaware of the significance of the evidence, although it was fully explored at trial.

145          Because the material (expansion of what was meant by rolling tyre

marks) was available to the prosecution on the basis that it was known to the police, the applicant was entitled to that information whether or not its existence was known to prosecuting counsel: see Bradshaw v The Queen (Unreported, WASCA, Library No 970228, 13 May 1997), per Malcolm CJ at 11.

146          It is unnecessary to determine whether there was any fault on the part

of the prosecutor in failing to disclose the material. The question is whether the failure to disclose it led to a miscarriage of justice: Bradshaw (supra) per Malcolm CJ at 11 - 12; Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 per Malcolm CJ at 405 - 406.

147          I have quoted a number of extracts from the transcript of the trial of

the appellant. They reveal that counsel for the appellant became well aware of what rolling tyre marks meant. Constable Pillage, in both examination and cross-examination, explained how the tyre marks were referred to as 'critical speed marks', which meant that the vehicle had started to lose traction and had slid sideways, as well as rotating forward, thus leaving striations on the roadway. On any view of it, Constable Pillage made it clear that the striations indicated that the vehicle had lost traction on the road surface.

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MILLER JA

148          Any failure to disclose this position prior to the trial was soon

remedied at the trial. It must have been clearly understood by all present at the trial what Constable Pillage was talking about when he spoke of rolling tyres. Therefore, I do not consider that there can be said to have been any miscarriage of justice occasioned by failure to disclose, in Constable Pillage's original statement, the full explanation of what rolling tyres meant.

1. Counsel for the appellant was armed with the appropriate information, but he appears not to have grasped the obvious point; namely, that the striation marks from the tyre marks on the roadway (leading from a point at or about the 60 km per hour sign) meant that the vehicle driven by Mr Bobby must have been out of control from about that point.

150          In the circumstances in which the evidence became apparent at trial,

I cannot see any miscarriage of justice occasioned by failure to disclose it.

151          This raises the question whether the evidence now presented by

Mr Davey can be described as fresh evidence. To be fresh evidence, it had to be evidence which did not exist at the time of the trial, or which could not then, with reasonable diligence, have been discovered. There is a clear distinction between fresh evidence and new evidence. That distinction was pointed up by Pullin JA in de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 at [152], where his Honour said:

The distinction between 'fresh' and 'new' evidence continues to be of importance. The distinction is important because 'new' evidence, after all, is evidence which was available and known by the convicted person to be available at the time of the original trial, or alternatively, 'constructively' (Ratten v The Queen (1974) 131 CLR 510 at 517) known to be available at the time of the original trial. An accused will 'constructively' know about evidence if, although not actually aware of it, he or she could with reasonable diligence have discovered the evidence by the time of the original trial. Admittedly, 'great latitude' (Ratten (at 517)) must be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have been able to produce at trial. This is because an accused will often be disadvantaged in intellectual terms, or in terms of financial and legal resources in the conduct of the case. The fact that such latitude must be shown may be the reason why it has been said that the distinction between 'fresh' and 'new' evidence is not as significant as it once was: Nolan v The Queen (unreported, Court of Criminal Appeal, WA, No 99 of 1995, Malcolm CJ, Pidgeon and Murray JJ, 22 May 1997). The distinction does, however, remain and is soundly based in principle. See Mickelberg v The Queen (at [415]).

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MILLER JA

There will be many cases where no latitude should be granted because the accused is not disadvantaged in any way. [152]

152 Section 40(1)(e) of the Criminal Appeals Act 2004 (WA) gives the court power to admit 'any other evidence' and this, of course, includes either fresh or new evidence. However, the court has a discretion to refuse to admit further evidence for the reasons express by Pullin JA in de la Espriella-Velasco, at [153] - [154]:

The reason for continuing to distinguish between 'new' and 'fresh' evidence is not to re-establish a set of rules bordering on fixed rules but merely to recognise that, in many cases, the court is likely to exercise its discretion and refuse to admit further evidence - in circumstances where the convicted person chose not to lead the evidence at trial or did not lead evidence which was available on reasonable inquiry. The fact that a tactical decision was made not to lead evidence or the fact that there was a failure to make reasonable inquiry will be facts relevant to the court's decision about whether the convictions should be quashed and a retrial ordered. A decision made for tactical reasons is a decision which an accused person must live with. There will be no miscarriage of justice: Lawless v The Queen (1979) 142 CLR 659 at 675 - 676. As Barwick CJ said in Ratten v The Queen (at 517), a criminal trial is not an inquisition. It is a trial:

… in which the protagonist is the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in-chief or in cross-examination shall be asked … [c]onsequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings or by misconduct on the part of the jury, there has been a fair trial. It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial.

Barwick CJ, after mentioning the latitude which must be extended to an accused in determining what evidence by reasonable diligence the accused could have had available at the trial, then concluded that: ' ... he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial.' [153] - [154]

153          In the present case, the evidence of Mr Davey could not be

categorised as fresh evidence. It was evidence which existed at the time of the trial and which could, with reasonable diligence, have been discovered. The solicitors for the appellant could easily have

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MILLER JA

commissioned Mr Davey to have reported on the significance of the tyre marks at the scene of the accident. It is common for independent vehicle crash investigators to compile such reports for defence purposes. This is not to impose an onus upon an accused person. It is simply to recognise that, in many cases, it will be prudent to have an independent check of expert evidence tendered on behalf of the prosecution.

154          There was no issue in this case as to whether or not Constable Pillage

was an expert and able to express the opinions that he did. The question of the legal requirements in relation to expert evidence was examined by Pullin JA in Hillstead v The Queen [2005] WASCA 116 at [47] et seq, but the issue does not seem to arise in this case.

155          The evidence of Mr Davey is neither fresh nor new. There is nothing

new about the evidence contained within his report and affidavits. All of the relevant evidence was extracted at trial during the course of examination, cross-examination and re-examination of Constable Pillage. It was not fully understood by counsel, or perhaps by the trial judge, but it can be said that counsel for the appellant, in full knowledge of what Constable Pillage was saying, chose a particular tactical path in the defence of the appellant. That path was to pursue a case that the appellant was sitting stationary at the intersection of Cherratta Road and North West Coastal Highway, when she observed a vehicle coming from her right which was on the incorrect side of the roadway. That vehicle then drove directly towards her, causing her to accelerate straight ahead to avoid a collision. No attempt was made to present a case which asserted that, prior to the appellant's arrival at the intersection, the approaching vehicle of Mr Bobby was travelling out of control on North West Coastal Highway. All of the evidence to enable that proposition to be put was there in the form of Constable Pillage's testimony.

156          In my opinion, counsel for the appellant made a tactical decision

with which the appellant must live (de la Espriella-Velasco per Pullin JA at [153]). The trial was not rendered unfair by reason of the path pursued by counsel for the appellant. It does not matter that he has sworn that '[t]he issue of critical speed was never an issue at the trial because there was no disclosed evidence to that effect', or that the first he knew of there being any issue of critical speed tyre marks in relation to the case was when he was advised of it by counsel and solicitors instructed to act for the appellant in July 2008. The fact is that the evidence in relation to critical speed tyre marks was disclosed at trial. No issue was made of it by counsel for the appellant, but the appellant must live with that fact.

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157          In the circumstances, and for these reasons, I would refuse to

exercise my discretion to admit further evidence in relation to the issue. In particular, I would refuse to admit the evidence of Mr Davey, Mr Percy and Mr O'Sullivan (the affidavit of Mr O'Sullivan being to the effect that he can recall no disclosure by police before the trial of the issue of 'critical speed' and that he was unaware of the significance of the concept prior to trial' (my emphasis)).

1. In my opinion, ground 1 of the appeal must fail.

Ground 2

159          As I have made clear from the extracts of the transcript of the trial

which I have quoted, the prosecution approached this case on the basis that the appellant had pulled out from the intersection, causing Mr Bobby to drive around her vehicle to avoid a collision. In opening, it was contended that he had driven around the front of the vehicle and that, after he had managed this manoeuvre and tried to get back onto the roadway, he had lost control and gone on to an embankment on the south-western side of the highway. In closing, the prosecution case was advanced on the basis that, having seen the appellant's vehicle move into the intersection, Mr Bobby had tried to brake, causing the vehicle to pull to the right because of the faulty wheel, but he had then corrected this and 'gone in there to the left' to miss the appellant's vehicle. The prosecutor specifically said that Mr Bobby had 'managed to control the car so that he could do that'.

160          The prosecution case was thus put on the basis of Mr Bobby being in

control of his vehicle and driving deliberately around the rear of the
appellant's vehicle as it proceeded into the intersection.

161          The evidence did not support this contention. The evidence of

Constable Pillage was clear. Critical speed marks on the roadway meant that Mr Bobby's vehicle had started to lose traction and was sliding sideways as well as rotating forward. The photograph, exhibit 4, revealed that the tyre marks extended back as far as the 60 km per hour sign. They proceeded in what was described as an arc, positioned in about the middle of North West Coastal Highway towards the wrong side of the road, and then back to the correct side of the road, from the point of view of Mr Bobby's travel. Exhibit 4 was readily available at trial and the tyre marks were clearly marked in yellow chalk. Unfortunately, exhibit 1 did not reveal how far back those tyre marks extended.

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MILLER JA

162          Nobody at the trial appears to have appreciated that, from a point

somewhere near the 60 km per hour sign, Mr Bobby's vehicle must have been out of control. The importance of this is that Mr Abell said that he saw the vehicle on the incorrect side of the roadway at a time when the appellant's vehicle was stationary at the intersection. If that was so, Mr Bobby's vehicle must have been out of control at that point, and not after the appellant's vehicle proceeded into the intersection. Further, the critical speed marks on the roadway made it clear that Mr Bobby could not have deliberately driven around the back of the appellant's vehicle, as the prosecutor ultimately submitted. The proposition advanced in support of the prosecution case that Mr Bobby 'managed to control the car so that he could do that' (drive around the back of the appellant's vehicle) did not accord with the evidence.

163          Mr Bobby's evidence was that he saw the appellant's vehicle enter

the intersection and was forced to take evasion action. He denied that he
was at any time on the wrong side of the road.

164          On one view of it, the jury had conflicting prosecution evidence in

the form of Mr Abell's testimony and the testimony of Mr Bobby. But, in my opinion, it was not a case in which the jury could have elected to accept Mr Bobby's evidence. His evidence did not accord with the objective evidence in the form of tyre marks on the roadway. That objective evidence supported what Mr Abell said.

165          The prosecution case was thus predicated upon evidence that when

Mr Abell first saw the approaching vehicle it must have been on the incorrect side of the road. Mr Abell said that at this time the appellant's vehicle was stationary. On no account could Mr Bobby's evidence that he never deviated to the right be accepted.

166          This was not a case in which the prosecution case changed during the

course of the trial (see R v Tangye (1997) 92 A Crim R 545). To the contrary, the prosecution case remained constant. It was, however, a case which did not accord with the evidence.

167          A criminal trial does not have formal pleadings. In a criminal trial,

the prosecution is required to formulate the basis upon which it puts its case against the accused and essentially to adhere to that case (Tran v The Queen [2000] FCA 1888; (2000) 105 FCR 182 at [133]). Further, the prosecutor is not to invite the jury to proceed upon a theory which cannot properly be sustained. If he does so and a conviction results, the verdict may be set aside (see Tran at [135]).

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168          In the present case, the prosecutor did formulate the basis of the

prosecution case and he did adhere to it. There was no question of departing from that case. However, the prosecutor invited the jury to proceed on a basis which could not be sustained by the evidence (Tran at [135]). The evidence established something quite different from the case that the prosecutor was advancing. In my opinion, it was not open to the jury to convict the appellant on the case advanced by the prosecutor because that case did not accord with the evidence led at trial. The conviction was therefore unsafe and unsatisfactory. It was not a case where the verdict was unsafe or unsatisfactory, even though it was open to the jury to convict (cf Anderson (1991) 53 A Crim R 421 per Gleeson CJ at 449). Rather, it was a case in which it appears unjust or unsafe to allow the verdict to stand because it was not reasonably open to the jury to convict on the evidence which was led at trial.

169          Although he did not concede it in absolute terms, counsel for the

respondent accepted at the hearing of the appeal that the inescapable inference from the evidence was that the Land Rover was out of control before the appellant proceeded into the intersection. Her driving, therefore, had no bearing on the course taken by the Land Rover. Counsel conceded that, even if the appellant's driving was considered dangerous, the offence of dangerous driving causing death could only be made out if it was proven beyond reasonable doubt that her driving substantively caused the Land Rover to leave the road and thereby occasion the death of Ms Tumbler.

170          Counsel for the respondent also conceded in written submissions on

ground 1 that there was 'new evidence', but I have already dealt with and
refused to accept that contention.

171          In supplementary written submissions in response to submissions of

the appellant on ground 2, counsel for the respondent retreated from the position he adopted at the hearing of the appeal, contending that the jury was entitled to convict if satisfied that Mr Bobby lost control of his vehicle because the appellant pulled out into the intersection without looking. The submission is that the appeal can only succeed if it can be shown that the jury was unwittingly misled in a positive sense as to a material fact. That material fact is said to be the point in the road at which control was lost. The critical question is contended to be when and where Mr Bobby lost control.

172          However, as I have pointed out, the prosecution case was predicated

on Mr Bobby having control of his vehicle at all relevant times and having

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driven around the back of the appellant's vehicle. This was not what the evidence led by the prosecution established. It established that Mr Bobby's vehicle was out of control from a point near the 60 km per hour sign, when it was observed by Mr Abell on the incorrect side of the road. On the prosecution case, the appellant's vehicle was then stationary at the intersection.

173          It is unnecessary and inappropriate to conjecture why Mr Bobby may

have lost control of his vehicle. But lose control he did, and at a time when (on the prosecution case) the appellant's vehicle was stationary at the intersection.

1. The prosecution case proceeded on an incorrect thesis. The evidence did not support what the prosecutor said in opening and closing.

175          It is not a case of the defence being taken by surprise by a turn in the

case. There was no essential departure from the prosecutor's opening (cf the contention in Spiers v The Queen [1999] WASCA 206). Rather, it is a case in which the prosecution presented a case that did not accord with the evidence.

176          The fact is that, on the evidence led at trial, the evidence established

that the Land Rover was out of control before the appellant proceeded into the intersection. That being so, her driving, even if dangerous in the sense of driving into an intersection when a vehicle was approaching, could not be said to have been dangerous driving causing death because it could not be established beyond reasonable doubt that the cause of the Land Rover leaving the road and the consequential death of Ms Tumbler was substantively caused by the driving of the appellant.

177          The appellant's driving may have constituted dangerous driving

within the meaning of s 61 of the Road Traffic Act 1974. That section creates an offence of driving a motor vehicle in a manner that is, having regard to all the circumstances, dangerous to the public, or to any person. However, s 59 of the Road Traffic Act 1974 does not provide that, on a trial on indictment, a conviction under s 61 may be returned. It is only on the summary trial of a person charged with a person against the section that a person may be convicted of an offence under s 61.

Should there be a retrial?

178          There is ample authority that the prosecution should not be given an

opportunity to make a new case which was not made at the first trial. In R

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v Taufahema [2007] HCA 11; (2007) 228 CLR 232, Gummow, Hayne,
Heydon and Crennan JJ expressed the principle in the following terms:

Insufficiency of evidence at one trial does not justify an order for a second trial: In Gerakiteys v R [(1984) 153 CLR 317 at 321. See also at 322 per Murphy J; at 331 per Deane J.] Gibbs CJ, when considering what was a sound exercise of the power of a court of criminal appeal to order a new trial, said: 'It would conflict with basic principle to order a new trial in a case in which the evidence at the original trial was insufficient to justify a conviction.' [See Reid v The Queen [1980] AC 343 at 349 - 350 per Lords Diplock, Hailsham of St Marylebone, Salmon, Edmund-Davies and Keith of Kinkel; and see also R v Wilkes (1948) 77 CLR 511 at 518 per Dixon J and Andrews v The Queen (1968) 126 CLR 198 at 211 per Barwick CJ, McTiernan, Taylor, Windeyer and Owen JJ]. That proposition rests in part on the idea that if the evidence is unchanged at the second trial, accused persons should not be placed in jeopardy of conviction by a second jury where an appellate court has found that the evidence was insufficient at the first trial; and in part on the idea that a new trial should not be ordered merely to give the prosecution an opportunity of mending its hand and presenting new evidence at the second trial which it failed to present at the first [Reid v The Queen [1980] AC 343 at 349 - 350 per Lords Diplock, Hailsham of St Marylebone, Salmon, Edmund-Davies and Keith of Kinkel]. [52]

179          In the present case, the evidence was insufficient to justify a

conviction. That is because the evidence revealed a set of circumstances different from those which were advanced by the prosecutor at trial. It was not the case that Mr Bobby was in full control of his vehicle and drove around the rear of the appellant's vehicle. Rather, the evidence established that his vehicle was travelling out of control on the roadway from a point close to the 60 km per hour sign on North West Coastal Highway and at a time when the appellant (on Mr Abell's evidence) must have been stationary at the intersection. The principles expressed by the majority in Taufahema are therefore entirely applicable.

180          In the circumstances of the case, it seems to me that the appeal

should be allowed on ground 2 and the conviction of the appellant should
be quashed.

Conclusion

181          Because there would be a miscarriage of justice if an extension of

time within which to appeal was not granted, I would extend time for the
filing of the notice of appeal.

182          I would refuse leave to adduce fresh evidence in the form of the

affidavits of Mr Davey, the affidavit of Mr Percy and the affidavit of

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Mr O'Sullivan. I would refuse leave to appeal in relation to ground 1 of the grounds of appeal, but grant leave in relation to ground 2. I would allow the appeal on ground 2 and quash the conviction of the appellant. I would order that the amount of the fine imposed by the trial judge (if paid) be remitted to the appellant within 28 days.

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Exhibit 1:

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Enlargement of exhibit 4: