Director of Public Prosecutions v Carletti (Ruling No 2)
[2013] VSC 303
•24 May 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. S CR 2012 0095
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL CARLETTI |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 May 2013 | |
DATE OF JUDGMENT: | 24 May 2013 | |
CASE MAY BE CITED AS: | DPP v Carletti (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 303 | |
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CRIMINAL LAW – Evidence – Culpable driving causing death – Flight – Consciousness of guilt.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr D Brown | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr C Dane QC | Ian Hone |
HIS HONOUR:
The accused is charged with culpable driving causing the death of Gavin Dunne on 1 January 2011. The charge of culpable driving has been laid on the basis that the accused drove his vehicle negligently, pursuant to s 318(2)(b) of the Crimes Act 1958. Pursuant to s 422A(1) of the Crimes Act, an alternative charge of dangerous driving causing death will also be left to the jury. In addition, the accused is charged with the indictable offences of failing to immediately stop his vehicle, and failing to render assistance, when he knew, or ought to have known, that the accident had occurred and had resulted in the death of or serious injury to a person.
An issue has arisen as to whether the prosecution should be permitted to rely on the accused’s immediate departure from the scene of the collision as evidence of consciousness by the accused man of his guilt of either culpable driving or the alternative charge of dangerous driving causing death. Mr Dane QC, who appears on behalf of the accused, has submitted that the prosecution should not be entitled to rely on the departure of the accused from the collision, for that purpose, and that I should direct the jury accordingly.
The accident, which resulted in the death of Mr Dunne, occurred at approximately 1.15 am on 1 January 2011 on the Calder Alternative Highway, Marong, a short distance south of the intersection of that highway with the Calder Highway. Approximately 45 minutes earlier, Mr Dunne and the accused, who were friends, had attended the Marong Family Hotel which was situated on the north east corner of the highway. After they left the hotel, the two men had a dispute, and Mr Dunne drove the accused’s Ford utility vehicle south along the Calder Alternative Highway. The accused followed him on foot. Mr Dunne then returned, and stopped his vehicle, facing north, a short distance south of the intersection of the Calder Highway. An argument then ensued between the two men, in the course of which some physical contact was made between them. Mr Dunne then walked across the highway to the southbound lane of the highway. The accused entered the vehicle, and drove it a short distance. In doing so, the front right hand corner of the vehicle came into contact with Mr Dunne’s leg. There is some dispute as to the precise mechanism of the impact, but it is common ground that, as a consequence, Mr Dunne ultimately came to rest on the eastern edge of the bitumen of the Calder Alternative Highway. The accused did not stop his vehicle. Instead, he immediately drove off, turning east onto the Calder Highway through the slip lane which was applicable to vehicles turning in the opposite direction, that is, turning from the Calder Highway into the Calder Alternative Highway. The accused then drove the vehicle approximately 7 kilometres to premises at Maiden Gully. He drove down the driveway of those premises, and left the vehicle behind a caravan at the rear of it. The accused then made his way to the property next door. At approximately 5.45 pm, he was located on those premises, underneath a thick bush, by a police dog.
In the meantime, Mr Dunne was conveyed to the Royal Melbourne Hospital. He died at the hospital later that morning.
There are a number of issues in the trial. In particular, there is an issue as to whether the accused’s actions in driving his vehicle were conscious and voluntary. The accused has also put in issue the question whether his driving constituted gross negligence for the purposes of culpable driving, and whether, alternatively, it fulfilled the definition of dangerous driving causing death. In addition, there is an issue as to whether Mr Dunne died as a result of the collision, or as a result of some other cause.
At an early stage in the trial, I invited the prosecutor, Mr D Brown, to specify whether, and how, the prosecution would seek to rely on the accused’s flight from the scene as demonstrating a “consciousness of guilt” by the accused. In response, Mr Brown has stated that the prosecution intends to rely on the accused’s flight from the scene for two purposes, namely:
(1)The accused fled the scene because he realised that his driving involved a serious breach by him of the criminal law, and accordingly he fled the scene to avoid the legal consequences of his actions.
(2)The accused fled the scene because he knew that his ability to drive was impaired by the amount of alcohol he had consumed, and he fled the scene in order to avoid that fact being detected by the police.
In oral submission, Mr Brown amplified the first proposition by stating that the prosecution would not be able to rely on the accused’s departure from the scene to establish a consciousness by the accused that he was guilty of culpable driving, as distinct from dangerous driving. Rather, he submitted that the flight of the accused from the scene implied a consciousness by the accused that he had driven the vehicle in such a manner that would either amount to culpable driving or dangerous driving, if his driving had resulted in death.
In response, Mr Dane QC submitted that the prosecution should not be permitted to rely on the accused’s departure from the scene for the two purposes specified by Mr Brown. Mr Dane relied on two arguments to support that submission. First, he pointed out that at the time at which the accused departed from the scene, Mr Dunne had not died. Thus, he submitted that the accused could not have known that his driving had resulted in the death of Mr Dunne, and thus his flight could not constitute an admission by him of his guilt of the completed crime of either culpable driving or dangerous driving causing death. Mr Dane submitted that conduct by an accused could only amount to his consciousness of guilt, if it constituted a consciousness by the accused that he had committed the completed crime with which he was charged.
Secondly Mr Dane submitted that the determination of whether the accused man’s driving, if it resulted in death, was such as to constitute either culpable driving, or dangerous driving, involved a qualitative assessment by the jury. He submitted that it was not a matter for judgment or assessment by the accused, and that the accused’s assessment of his driving could not be probative of his guilt of either the charge of culpable driving or dangerous driving causing death.
The principles, relating to the use by juries of post offence conduct, such as flight, as evidence of “consciousness of guilt”, have been the subject of a number of appellate decisions in recent years. Essentially, the prosecution seeks to invite the jury to draw an inference, from the evidence of the flight by the accused from the scene of the collision, that the accused knew that his driving had involved a serious breach by him of the criminal law, of the type contemplated by the charge of culpable driving or the alternative charge of dangerous driving causing death, and that he also knew that he had driven his vehicle while affected by the consumption of alcohol. It is put on behalf of the prosecution that, with that awareness, the accused fled the scene in order to avoid detection by the police.
The question, whether a jury should draw a particular inference, is essentially a question of fact for the jury. My role, as the trial judge, is not to determine whether the jury should draw such an inference. Rather, my task, at this stage, is to determine whether the jury, acting rationally, could (not should) conclude that the inference, which is contended for on behalf of the prosecution, is the only reasonable inference to be drawn from the flight of the accused from the scene of the collision.[1]
[1]R v Cengiz [1998] 3 VR 720, 721 (Ormiston JA), 735, 738 (Harper AJA).
Mr Dane did not specifically make any submission to the effect that the jury could not, rationally, infer that the accused had fled the scene of the collision for the reasons specified by the prosecution. In any event, I am satisfied it is open to the jury to conclude that the inference, contended for by the prosecution, is the only reasonable inference available from the circumstances of the case.
Rather, the submissions by Mr Dane raise two other questions. First, as I stated, it is submitted that the evidence of flight is not capable of constituting consciousness of guilt of either culpable driving causing death, or dangerous driving causing death, because Mr Dunne had not died at the scene. In that respect Mr Dane’s submission is, of course, perfectly correct. However, Mr Dane further submitted that the concept of “consciousness of guilt” is only available where the post offence conduct of the particular accused involves an admission by the accused of the whole of the offence charged. Mr Dane did not refer me to any authority in support of that proposition. In my view, that proposition is contrary to both authority and principle.
In essence, the inference, sought to be relied on by the prosecution, is an inference involving an implied admission by the accused as to a particular matter. It is trite law that an accused may admit the existence of one or more of the elements of the crime charged, and that admission may be relied upon by the prosecution as evidence in support of the proof of the particular element or elements. A fortiori, equally, an accused, by his or her conduct, may impliedly admit one or more of the elements of the offence charged, and the prosecution may rely upon that implied admission as proof of that element or elements.
Further, the submission made by Mr Dane is contrary to authority. In R v Ciantar[2], the Court of Appeal quoted, with approval, a passage from the decision of the English Court of Appeal in R v Miah,[3] in which that court recognised that the prosecution may rely on post offence conduct or lies of an accused in support of an element or elements of the crime charged, without relying on that conduct as an implied admission of the whole of the crime charged. Having referred to that passage in R v Miah, the Court of Appeal, in R v Ciantar[4] stated that where the prosecution seeks to rely on post offence conduct as evidence of consciousness of guilt for the purposes of one or a number of issues, the prosecution must specify (inter alia) the particular issue or issues which the prosecution will submit were the subject of the implied admission by the accused’s post offence conduct.
[2](2006) 16 VR 26, 50; [2006] VSCA 263, [80].
[3][2003] EWCA Crim 3713 [46]-[49].
[4]Above n 2, 51 [81].
The second submission by Mr Dane was to the effect that the decision, whether the manner of the accused’s driving constituted gross negligence for the purposes of the charged offence of culpable driving, or whether if it was of such a character as to constitute dangerous driving for the purpose of the alternative charge, was a matter solely for the qualitative assessment of the jury. He submitted that any implied admission by the accused to that effect would not be relevant to the jury’s determination.
In my view, the submission made by Mr Dane is contrary to both authority and to principle. In R v Dickinson,[5] the Court of Appeal held that the trial judge, in a trial of culpable driving, did not err in leaving to the jury the issue of the accused’s flight as demonstrating his consciousness of guilt of that charge.
[5][2007] VSCA 11.
As a matter of principle, in my view, it is clear that the belief or awareness of the accused, of the manner in which he had been driving, is a relevant fact in the case. In particular, a jury is entitled to consider that a person would not intentionally depart from the scene of an accident, if the person’s driving had only involved a lack of reasonable care by that person. Rather, a jury would be entitled to consider that the accused fled the scene because he realised that his driving had involved such a serious breach of the criminal law, that it was in his best interests not to remain there, and to have to thus face the legal consequences. Further, in my view the jury would be entitled to infer that the accused left the scene because he knew or was aware that his driving had been of such a character that it would amount to either culpable driving or dangerous driving. While that belief would not of course dictate the ultimate conclusion by the jury, it is clearly relevant to the deliberations of the jury.
Accordingly, I reject the submission by Mr Dane that the prosecution should not be permitted to rely upon the accused’s flight from the scene for the purposes proposed by Mr Brown. As I have already stated to counsel, in giving the usual Edwards directions to the jury, I shall instruct the jury that the jury would only be permitted to rely on the evidence of the accused’s departure from the scene, for the purposes contended for by the prosecution, if the jury were satisfied beyond reasonable doubt that the accused’s actions in driving from the scene were conscious and voluntary, and that the accused was aware when he drove from the scene that the collision had occurred.
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