Director of Public Prosecutions v Tulloch (Ruling No 1)
[2021] VSC 648
•7 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0135
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| RYAN TULLOCH | Accused |
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JUDGE: | Niall JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 September 2021 |
DATE OF JUDGMENT: | 7 October 2021 |
CASE MAY BE CITED AS: | DPP v Tulloch (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 648 |
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CRIMINAL – Evidence – Admissibility – Culpable driving causing death and other motor vehicle offences – Admissibility of evidence of previous driving – Admissibility of evidence of accused being ‘drug affected’ and the speed at which the accused was travelling – R v Scott (2003) 141 A Crim R 323 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Dickie | Office of Public Prosecutions |
| For the Accused | Mr H Rattray | Stary Norton Halphen |
HIS HONOUR:
The accused, Ryan Tulloch, is facing trial on an indictment containing six charges. He is alleged to have stolen a Subaru sedan (charge 1)[1] and driven it in a manner and in circumstances that constituted conduct endangering persons (charge 2).[2] The conduct comprising charges 3 to 6 occurred a short time later, resulting in a collision with another motor vehicle driven by Mr Ian Sloan and in which his wife, Mrs Betty Sloan, and daughter, Ms Jennifer Sloan, were passengers. After the collision, Betty Sloan was conveyed to hospital by ambulance and later died. Jennifer and Ian Sloan sustained injury. Arising from the collision, in respect of Betty Sloan, Mr Tulloch is facing one charge of culpable driving causing death[3] (or in the alternative, negligently causing serious injury)[4] and two charges of negligently causing serious injury to Jennifer and Ian Sloan.[5] The culpable driving charge is put on the basis that the driving was negligent.
[1]Crimes Act 1958 s 74(1).
[2]Crimes Act 1958 s 23.
[3]Crimes Act 1958 s 318(1).
[4]Crimes Act 1958 s 24.
[5]Crimes Act 1958 s 24.
In his defence response, Mr Tulloch has indicated that he will plead guilty to charges 1 and 2. He contends that the evidence in support of charges 1 and 2 should not be admitted in the trial on the balance of the charges. In relation to charges 3 to 6, he denies that his driving was grossly negligent or that it caused the death of Betty Sloan or serious injury to Jennifer and Ian Sloan.
This ruling concerns the admissibility of certain evidence that the prosecution seek to adduce at trial. The first aspect concerns evidence of the manner in which Mr Tulloch was observed driving the Subaru in the period before the collision. The second aspect concerns evidence of some witnesses as to their assessment of the speed at which Mr Tulloch’s car was travelling and that, after the collision, Mr Tulloch was observed to be ‘drug affected’.
In order to understand the submissions, it is necessary to set out in some detail the prosecution case concerning Mr Tulloch’s driving on the morning of 17 June 2019.
Prosecution case
At about 10.30 am, Mr Tulloch drove the Subaru along Toorak Road, Camberwell. He passed another car driven by Ben Helweg on the left hand side, squeezing between Mr Helweg’s car and a parked car. Mr Tulloch then collided his vehicle into the rear of a utility driven by Alex Watson that was stationary at traffic lights. Mr Tulloch then reversed the Subaru, drove past the damaged utility on the wrong side of the road, and turned into a side street. Mr Watson and Mr Helweg followed Mr Tulloch in their vehicles but stopped due to the speed of Mr Tulloch’s vehicle which was seen driving on the wrong side of the road.
At 11.08 am, Mr Tulloch drove into a BP service station at the corner of Canterbury Road and Station Street, Box Hill South. He was observed by two police officers, Senior Constable Bower and Detective Senior Constable Coutts who, in an unmarked police car, were coincidently at the service station. Suspecting he was about to drive off without paying for fuel, one of the police officers, Senior Constable Bower, exited the front passenger seat and ran up to the accused’s driver’s door, yelling ‘Police! Stop!’
Mr Tulloch looked directly at the officer and, without looking behind him or in his rear mirror, reversed his car backwards onto Canterbury Road, directly over the petrol station’s forecourt and over the footpath. Senior Constable Bower tried to reach into the Subaru’s open window. He again yelled ‘Stop, Police!’ The driver’s side front guard of the Subaru brushed against Senior Constable Bower’s legs next to the bollards protecting the pumps as the Subaru drove off.
Mr Tulloch reversed the Subaru at speed down Canterbury road, swerving between lanes. About 100 metres along the road he turned the car. He reversed it into a concrete pole on the nature strip. He again turned to orient east and drove along Canterbury Road, accelerating to a high speed. He moved between lanes in an erratic and dangerous manner. Senior Constable Bower estimated the accused drove about 90 kilometres per hour. The applicable speed limit was 60 kilometres per hour. The two eastbound lanes were at the time clear with no traffic. However, the accused drove onto the wrong side of the road, which did have moderate traffic. The accused drove towards the oncoming traffic, weaving between cars. Some of the cars stopped or turned to avoid a head-on collision. The two police officers remained at the service station.
Mr Tulloch was seen at 11.12 am by an off duty police officer driving east along Canterbury Road. He was observed driving on the wrong side of the road at speed.
A short time later Mr Tulloch was seen by another policeman travelling south along Middleborough Road. The prosecution infer that Mr Tulloch had left the service station, travelled east along Canterbury Road, turned left at Middleborough Road driving north, and then did a U-turn so as to backtrack south along Middleborough Road towards Canterbury Road.
Leading Senior Constables Hernyak and Pugliese, who were on patrol duty, saw the accused speeding west along Canterbury Road, near Middleborough Road. The Subaru was estimated to be travelling at 80 to 90 kilometres per hour in a 60 kilometre per hour zone. The accused changed lanes at least once to pass other cars. He drove across the centre line onto the incorrect side of Canterbury Road. He turned left and drove south on Station Street against a red light, narrowly missing a pedestrian crossing the street. In doing so, Mr Tulloch had driven past the BP service station where officers Bower and Coutts had remained. They followed Mr Tulloch’s car.
Mr Tulloch’s car was observed to have damage to the front of the vehicle and the rear bumper was hanging off and protruding to the right.
Police estimated that Mr Tulloch was driving at about 100 to 110 kilometres per hour along Station Street. As Mr Tulloch approached Riversdale Road, he was observed to be driving on the wrong side of the road. He crossed onto the wrong side of the road and concrete median strip separating the traffic, turning right to go west on Riversdale Road. He drove the wrong way through a slip turning lane, which was dedicated to left-turning cars from Riversdale Road travelling north into Station Street. He turned right into Riversdale Road, driving west.
At the intersection of Station Street and Riversdale Road, the accused struck the rear of a white sedan driven by Edward Moore as Mr Moore was attempting to do a U-turn onto Riversdale Road. Mr Moore’s car was just to the left of the line dividing Riversdale Road. The accused continued to drive at about 90 kilometres per hour along Riversdale Road towards Elgar Road.
There is a downhill gradient along Riversdale Road as it heads west towards Elgar Road. Rodney Green was driving east along Riversdale Road and observed that Mr Tulloch’s car was sideways and out of control as it drove towards him. There was smoke coming off the front and left wheels. Mr Green attempted to avoid the collision but was unable to do so and the contact caused Mr Green’s car to hit a parked car.
Mr Tulloch’s car continued to slide out of control on the wrong side of the road and collided with the front of the car driven by Ian Sloan that was heading in an eastern direction behind Mr Green’s car. Betty Sloan was in the front passenger seat and Jennifer Sloan was in the rear seat behind her mother.
Betty Sloan sustained extensive injuries including fractures to her ribs and sternum and the second and third lumbar vertebrae. She was hospitalised and died on 19 July 2019 as a result of bronchopneumonia. Ian and Jennifer Sloan also sustained fractures and extensive bruising requiring hospitalisation. It is not presently necessary to recount the extent of their injuries.
In the immediate aftermath of the collision:
(a) Mr Tulloch was observed with blood coming from the rear of his head;
(b) Lauren Neilson, whilst driving, saw the accused’s car on the wrong side of Riversdale Road heading towards Elgar Road. She described it as ‘flying’ at a speed well above the 60 kilometres per hour speed limit while it was on the wrong side of the road. She saw it collide with Mr Green’s blue Kia and then the white VW. The impact was head-on. The VW was not travelling fast. It was just accelerating up the hill. Ms Neilson estimated it had not reached the 60 kilometre per hour speed limit. She heard a loud bang and saw lots of smoke and some debris. After impact, the Subaru spun with its back end spinning clockwise. It came to rest in the lanes that it should have been in had it not been driving on the wrong side of the road.
(c) Ms Neilson described the accused as seeming ‘a bit off or drug affected’. He was unsteady on his feet but had to keep on the move. It looked like he was trying to walk away but could not physically do so because of the people around.
(d) Emily Stockdale said the accused appeared very confused. She tried to tell him to sit down but he just appeared dazed and totally out of it, like he was under the influence of something;
(e) Police officers observed the accused mumbling to himself, scattered and thought he appeared drug affected; and
(f) The paramedic assessed the accused to be disorientated and unsure of events, and he was taken to the Alfred Hospital.
The prosecution case on culpable driving
The prosecution put its case on the charge of culpable driving on the basis that the accused drove the car negligently, in that he failed unjustifiably and to a gross degree, to observe the standard of care which a reasonable person would have observed in all of the circumstances. More particularly, it contends that Mr Tulloch’s failure is represented by the accused driving fast and erratically and, as a result, losing control and driving on the wrong side of the road into the path of his victims.
Mr Tulloch’s submissions
Mr Tulloch submits that the accounts of his driving that was antecedent to the collision are irrelevant or should be excluded under s 137 of the Evidence Act 2008. He submits that the critical issue is whether at the time of the collision he was driving negligently. He accepts that he had lost control of the vehicle at the point of impact but submits that his driving earlier that morning is irrelevant to the jury’s assessment of his driving at the time of the collision. He submits that the evidence should be confined to the period when he was driving along Riversdale Road up until the point of impact.
He accepts that the correct approach to the admissibility of the evidence of earlier bad driving was that explained by Winneke P in R v Scott[6] where the learned President said:
There is no magic about this type of evidence. Whether the lack of care and attention in driving at one point can be logically probative of lack of care and attention at another point must ultimately depend upon whether the two points are so closely related in time, distance and circumstance to allow the tribunal of fact to draw an inference that the manner of driving at the second point was of the same character as the manner of driving at the first point.[7]
[6](2003) 141 A Crim R 323; [2003] VSCA 55 (Winneke P, Phillips and Buchanan JJA) (‘Scott’).
[7]Ibid 329 [11].
Mr Tulloch submits that the earlier driving is not closely related in circumstance to his driving at the point of the collision because it may be inferred that his earlier driving occurred when he was being pursued by police whereas the pursuit had been called off by the time of the collision.
Even if relevant, he submits that the evidence should be excluded because of unfair prejudice on the basis that the jury would misuse the evidence as evidence of bad character or propensity evidence.
Analysis and conclusion
In my view, the evidence from the time Mr Tulloch is seen at the BP service station up until the collision is relevant and admissible. On the other hand, the evidence of Mr Helweg and Mr Watson[8] which concerned an earlier incident, is insufficiently connected to the driving at the time of the fatal collision and should be excluded.
[8]Paragraphs 8 and 9 of the Summary of Prosecution Opening.
The time between when Mr Tulloch was seen at the BP service station and the collision is brief, comprising about 22 minutes. The driving is continuous and not interrupted by any break or significant intervening event. It would be plainly open to the jury to conclude that reversing his car at speed and then speeding away from the service station was influenced by his desire to avoid apprehension. Throughout the next 22 minutes Mr Tulloch stayed within the same general area and would have had the opportunity to observe a police presence. I cannot accept the submission that because the police had terminated the pursuit at some point on Station Street that avoiding apprehension was no longer an operative factor in the mind of the accused. The timeframe is a matter of minutes.
When he doubled back a short time later and drove west along Canterbury Road, he drove past the two police officers who had remained at the service station. From Canterbury Road he turned left into Station Street going through a red light. He was observed to be speeding by very experienced police officers. He turned right into Riversdale Road after a relatively minor collision. The fatal contact occurred a short time later, on the wrong side of the road, when his car was careering out of control. His car was observed to have smoke coming out of the rear and CCTV footage shows either the rear bumper bar or exhaust being dragged along the road. Self-evidently, it would be open to conclude that driving off after the collision on the corner of Station Street and Riversdale Road, some 750 metres before the fatal collision, and driving when the exhaust had come loose and was being dragged along the carriageway, is evidence of driving with a lack of care and attention.
To accede to Mr Tulloch’s submission would be to sanitise the driving in a way that would give an entirely incomplete context in which the collision occurred. The fact that he was being pursued by police only a few minutes before the earlier collisions that resulted in the bumper and exhaust being damaged, and the array of driving misadventure, would all be obscured or omitted. The manner in which he drove the car once he left the BP service station rationally bears upon the manner in which he was driving at the time of the collision, including the level of care he was exhibiting as he drove along Riversdale Road. I do not accept the submission that in driving away from the BP service station the driving was different because he was then deliberately driving at speed and on the wrong side of the road to avoid detection, whereas at the point of impact, there is no suggestion he deliberately drove on the wrong side of the road and there is no explanation as to how he lost control of the car. As Winneke P explained in Scott, it is open to infer that the later driving had the same character as the earlier driving when it is viewed as an episode of driving connected by time, distance and circumstance.
The evidence is highly probative. The whole episode of driving from the BP service station is connected temporally and in circumstance. I do not accept that there is any real risk that the jury would misuse the evidence on the basis that Mr Tulloch is of bad character or has a general propensity to drive dangerously. To the extent that there is any risk, it could be addressed by appropriate directions.
Evidence as to speed
Objection is taken to the evidence of Ms Neilson that the Subaru was ‘flying’. Ms Neilson explained what she meant by that and the basis for her opinion as to the speed of the vehicle. The estimate of speed is a matter that can be given as lay opinion evidence when the basis for the opinion is explained.[9] The evidence is admissible.
[9]R v Panetta 91997) 26 MVR 332; Rodger v Wojcik [2014] 67 MVR 223.
Evidence that the accused was drug affected
In the usual course, and based on ordinary human experience, a witness can describe how a person appeared and whether they appeared to be affected by drugs or alcohol. However, the difficulty in this case, is that the witnesses observed Mr Tulloch immediately after a very significant collision at a time he had apparently sustained some head injury. He was observed to be bleeding from a wound on the back of his head. None of the lay witnesses who express the opinion that the accused appeared drug affected give any reason to believe that they could distinguish between the effects of drug and alcohol and the effects of a head injury, concussion or shock.
In the circumstances, the basis for the opinion is not established and the evidence is inadmissible. On the other hand, the witnesses can describe what they saw, including Mr Tulloch’s appearance and his movement. I note that methylamphetamine was found in Mr Tulloch’s blood (approximately 0.05 mg/l) when a sample was taken at the hospital on the morning of the collision. No objection is taken to the evidence of Dr Schreiber of the Victorian Institute of Forensic Medicine as to the effect of methylamphetamine, including at low levels, on concentration and performance.
Evidence that the accused wanted to flee the scene
Although the prosecution gave notice of an intention to lead evidence of incriminating conduct, constituted by a number of witnesses saying that Mr Tulloch wanted to flee the scene, the prosecution no longer seek to adduce that evidence and it need not be further considered.