Dunkley-Price v The Queen
[2015] VSCA 310
•23 November 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0006
| TRAVIS DUNKLEY-PRICE | Applicant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH, KAYE JJA and GINNANE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 October 2015 (Further submissions by appellant on 11 November 2015. Response to further submissions by respondent on 17 November 2015). |
| DATE OF JUDGMENT: | 23 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 310 |
| JUDGMENT APPEALED FROM: | DPP v Dunkley-Price (County Court of Ballarat, Judge Pullen, 25 September 2013). |
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CRIMINAL LAW – Culpable driving – Negligently causing serious injury – Causation – Applicant’s vehicle stopped in left lane of busy highway to make telephone calls – Victim’s vehicle blocked behind applicant’s vehicle – Co-accused’s vehicle collided with rear of victim’s vehicle – Co-accused convicted of dangerous driving causing death and dangerous driving causing serious injury – Whether open to jury to be satisfied beyond reasonable doubt that applicant’s driving was a substantial and operative cause of accident.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Dann | Ms M Walker |
| For the Crown | Mr R Gibson | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA:
I have had the benefit of reading in draft the reasons of Kaye JA and for those reasons agree that leave should be refused.
KAYE JA:
The applicant was convicted, by the jury empanelled on his trial, of one charge of culpable driving, and one charge of negligently causing serious injury. He also pleaded guilty to a summary charge of driving while his licence was suspended. The applicant was sentenced to a total effective term of 7 years and 3 months’ imprisonment, with a non-parole period of 5 years and 3 months.
The applicant’s co-accused, Brett Stevenson, was also found guilty, by the same jury, of one charge of dangerous driving causing death, and one charge of driving causing serious injury. He was sentenced to a total effective term of 2 years and 6 months’ imprisonment, with a non-parole period of 18 months. Mr Stevenson’s appeal against his conviction was dismissed in a separate appeal.[1]
[1]Stevenson v R [2014] VSCA 247.
The applicant seeks leave to appeal against his convictions on one ground, namely, that the guilty verdicts of the jury on the charges of culpable driving and negligently causing serious injury are unsafe and unsatisfactory, in that a jury, acting reasonably, must have had a reasonable doubt that it was the driving of the applicant, as opposed to the driving of Mr Stevenson, that caused the death and serious injury.
The accident, which was the subject of the charges, occurred at 6.15 pm on 19 July 2010 on the Western Highway at Myrniong, a short distance before the Myrniong exit. At that point, the Western Highway was a divided road. The highway consisted of an emergency lane, and two parallel running lanes, on each side. The speed limit applicable to that section of the Western Highway was 110
kilometres per hour. The accident happened shortly after it had become dark.
At the time of the collision the applicant was the driver and sole occupant of a black Holden Commodore utility vehicle. He was driving his vehicle on the highway towards Ballarat. A short distance before the Myrniong turnoff, the applicant stopped his vehicle in the left hand running lane, either to receive or to make a telephone call from his mobile telephone.
The deceased, Breanna Willmott, was driving a Mitsubishi Magna vehicle in the left hand lane of the highway approaching the Myrniong off-ramp, immediately behind the applicant’s vehicle. Stephanie Bewley was a front seat passenger in the vehicle. As Ms Willmott’s vehicle approached the exit, it came to a stop behind the applicant’s vehicle. She was unable to overtake it, because other vehicles were travelling in the same direction in the right hand running lane. A short time after Ms Willmott stopped her vehicle, Mr Stevenson, who was driving a Holden Commodore in the left hand running lane, collided with the rear of the Mitsubishi Magna, forcing it to collide with the rear of the applicant’s vehicle. As a result of the force of the collision, Ms Willmott suffered injuries from which she died. Ms Bewley suffered serious injuries.
Expert evidence obtained in part from the crash data retrieval log from Mr Stevenson’s vehicle indicated that, in the two and one half to five second period immediately before the collision, Mr Stevenson’s vehicle increased speed from 106 kilometres per hour to 109 kilometres per hour, and that there was an increase in the throttle percentage and engine revolutions during that time. The evidence also indicated that there was no breaking or evasive steering action taken by Mr Stevenson before the collision.
The prosecution case was that the applicant’s conduct in stopping his vehicle in the left hand running lane of the Western Highway, when other traffic was travelling along it at the speed limit, was grossly negligent, and was a substantial and operating cause of the death of Ms Willmott, and of the injuries sustained by Ms Bewley. In response, it was submitted that the applicant’s conduct was not grossly negligent, and it was not a substantial or significant cause of Ms Willmott’s death or Ms Bewley’s injuries. At trial there was an issue as to whether the applicant’s vehicle had stopped in the emergency lane or the left hand running lane. It is accepted that, by its verdict, the jury was satisfied beyond reasonable doubt that the applicant stopped his vehicle in the left hand running lane. It was submitted, on behalf of the applicant, that even if his vehicle was stopped in that lane, his driving could not be said to have been the cause of the death of Ms Willmott or the serious injury suffered by Ms Bewley. It was submitted that the driving of Mr Stevenson was the sole cause of the death of Ms Willmott and Ms Bewley’s injury.
The prosecution evidence
Jake Warren was a passenger in a vehicle driven by Dave Dobie towards Ballarat on the Western Highway in the evening of 19 July 2010. Stephen Harrison was a passenger in the back seat of the vehicle. Mr Warren saw two vehicles, travelling ahead of him, also in the left lane. They were very close together as if the first vehicle was towing the second vehicle. At that stage they were about 300 metres in front of Mr Dobie’s vehicle. Mr Dobie moved his vehicle into the right hand lane. As they drove past the two vehicles, Mr Warren saw the driver’s arm outside the dark utility vehicle’s window.
In cross-examination, Mr Warren stated that Mr Dobie did not need to take emergency action to move over to the right lane and that he was able to move over to the right hand lane easily to avoid colliding with the two vehicles ahead of him. Later, in cross-examination by Mr Stevenson’s counsel, he agreed that Mr Dobie had to swerve to avoid the two vehicles, and that it was a ‘close call’. In re-examination, Mr Warren stated ‘… we were coming close and then we had to move across quite swiftly in a sense like to get around the car’. Mr Warren said that when he first saw the vehicles, he thought they were moving, but as they passed the vehicles, he realised they were stationary. Mr Warren was then further cross-examined by counsel for the applicant. He said that while the manoeuvre by Mr Dobie to the right hand lane was not a gradual one, nevertheless it was not an emergency action by him.
Stephen Harrison, the rear seat passenger in Mr Dobie’s vehicle, stated that he first saw the two vehicles in the left hand lane. They were not in the emergency lane, and were about half a car length from each other. Mr Dobie moved into the right lane when he was about 40 metres from those two vehicles. They were then stationary. The move to the right was not urgent, but it was gradual. As they drove past, Mr Harrison saw the front door of the utility open, and the driver about to get out. In cross-examination, Mr Harrison said that Mr Dobie’s vehicle did not come close to hitting the other two vehicles.
Todd Shillito was driving the vehicle in front of Mr Stevenson’s vehicle as he approached the two stationary vehicles in the left hand lane of the Western Highway. He first saw the vehicles when he was about 300 metres away. He saw the brake lights in front of him. Mr Shillito stated that he struggled to get around the vehicles. He had to veer into the right lane. As he was doing so, he thought that he could have gone off the road as well, and he was angry about that. At the time Mr Shillito was driving at about 110 kph, but he slowed to less than 100 kph as he veered to the right. As he passed the cars, Mr Shillito saw the driver of the front vehicle ‘hanging out of the door of the vehicle’. After he passed the vehicles, Mr Shillito thought ‘that’s going to be close for the next vehicle’. He then looked in his rear vision mirror, and saw a third vehicle hit the rear of the second vehicle, and the rear of that vehicle lifting into the air.
In cross-examination, Mr Shillito repeated that he considered that he was lucky to have been able to get around the vehicles in the left lane. He said that the accident occurred an instant after he passed the vehicles. He looked in his rear vision mirror for about a second or two, and then the collision occurred. He acknowledged, to counsel for the applicant, that when he made his statement to the police, he did not say that he struggled to get around the vehicles. However, in cross-examination by Mr Stevenson’s counsel, he agreed that at the committal proceeding he gave evidence that he swerved out of the left lane. He said:
I knew instantly when I went past that it was going to be close for whoever was coming behind me, because it was an accident waiting to happen, it was two cars stationary on the left hand lane of a highway’.[2]
[2]T 261.
Richard Ryan was driving his truck in the same direction as the applicant’s vehicle. He saw the applicant’s utility vehicle, and the vehicle driven by Ms Willmott, move to the left hand side of the road as if they were moving into the emergency lane. His view became obscured. The next thing he saw was Ms Willmott’s vehicle spinning backwards towards him in the middle of the road. In cross-examination by Mr Stevenson’s counsel, he agreed that he never saw the utility vehicle in the emergency lane, and he did not know what lane they were in.
Kate Vesty was a passenger in a vehicle driven by her partner, Mark Phelan, that was also travelling in the same direction. It was dark at the time. She saw two vehicles stationary in the left lane, about 100 metres ahead. The rear vehicle had its right hand indicator on. Mark Phelan moved his vehicle from the left lane into the right lane to avoid those cars. After he had done so, Ms Vesty realised that the two vehicles ahead of them were stationary, about half a car length apart. In cross-examination, Ms Vesty said that Mark Phelan overtook the two stationary vehicles easily, and that he did not have to perform any emergency or jerking manoeuvre in order to avoid colliding with them. She disagreed with the suggestion that those vehicles were in the emergency lane.
Mark Phelan said that he saw the two vehicles, which were practically stopped, approximately 200 to 300 metres in front of him. He put his right hand indicator on and moved into the right lane. He was able to do so, because there were 200 metres between his vehicle and the vehicle which was travelling behind him in the right hand lane. He said that the right hand indicator of the rear vehicle was on, and it looked as if that vehicle was trying to get around the front vehicle.
Graeme Cahill was also driving his vehicle in the same direction. He closed in on the vehicles ahead of him fairly quickly, and had to overtake them in a controlled evasive move, when he was a couple of hundred metres behind them. He had the impression that the rear vehicle was merging out to the right. In cross-examination, he said that he closed in on the two cars a bit quicker than he had expected, and so he had to change lanes a bit sooner than he thought he would. He said, however, he was not afraid that he was about to collide with the rear of the vehicles. He did not see the front vehicle merging into the emergency lane.
Stephanie Bewley, the passenger in Ms Willmott’s vehicle, said that as they were driving along the highway, the brake lights on the black utility in front of them were flashing on and off. It kept driving for a bit, then it would continue to do that again. Eventually it came to a stop. At the point at which the brake lights were flashing off and on, Ms Willmott remarked to Ms Bewley that the vehicle ahead was travelling at 60 kph on a freeway. Ms Bewley stated that Ms Willmott stopped her vehicle, and there was no safe opportunity to get around the utility in front because other cars were passing their vehicle. She said that the utility did not come to a normal stop, but rather it was jerking along as if it was running out of petrol. She said that the utility stopped in the left hand lane of the freeway, and not in the emergency lane.
Ms Bewley further stated that after they had stopped, she could see the leg of the driver of the utility come out and touch the ground. As a result, both Ms Willmott and she became quite scared. They were stationary behind the utility for about 30 seconds to one minute before the collision occurred. Ms Bewley then saw lights behind her, and then she remembered everything flying in the car. She was unable to recall anything else.
In cross-examination, Ms Bewley repeated that there was a lot of rapid jerking of the brakes of the utility before it came to a stop.
Darren Power was the last of the lay witnesses to give evidence. He said that he was driving in the left hand lane. It was dark at the time. A vehicle travelling in front of him moved to the right to overtake some vehicles. Mr Power then observed two vehicles travelling very slowly in the left hand lane, at about 50 kph. Mr Power was then 200 metres from them. He quickly applied his brakes, moved to the right, and overtook them fairly comfortably. His first impression was that the leading vehicle might have been towing the second vehicle. When he overtook them, Mr Power, who was travelling at about 90 kph, was driving at about twice the speed of those two vehicles.
In cross-examination, Mr Power said that there was no special urgency in his overtaking of the vehicles. He did apply his brakes fairly heavily at first, checked his mirror, and moved fairly comfortably into the right hand lane.
Peta Owen, a paramedic, attended the scene of the accident at 6.30 pm on 19 July 2010. She spoke to the applicant and to Mr Stevenson. The applicant told her that he was pulling into the left emergency lane, that he was almost stopped, he saw a car come up quickly behind him, and at the last second put its right hand indicator on to pull out, then the collision occurred. Mr Stevenson told Ms Owen that the driver of the utility was in the left hand side of the lane, and the vehicle just pulled out, and he went up the back of them, because he had nowhere to go.
Leading Senior Constable Rod Oppenhuis attended the scene shortly after the collision. He had a conversation with Mr Stevenson, in which Mr Stevenson said that he noticed two vehicles ahead of him approximately 50 metres away, and that he could not pull up in time. Mr Stevenson said that he was travelling at 110 kph before the collision.
Leading Senior Constable Shaun Woodhouse also spoke to the applicant and Mr Stevenson at the scene. The applicant said that while he was driving in the right hand lane, he had to answer the telephone, so he slowed down and moved into the left lane and the emergency lane. He was travelling at 10 kph to 15 kph, or ‘maybe walking pace’. He said that he would have been nearly three quarters in the emergency lane, he saw the vehicle behind him, and then he got hit. Mr Stevenson told Senior Constable Woodhouse that he was travelling in the left lane towards home, the next thing he knew was that there was a car in front of him and he hit it. Mr Stevenson was travelling at 110 kph.
Leading Senior Constable Cusack produced the applicant’s mobile telephone records, which disclosed telephone calls made and received by the applicant in the period leading up to the collision until shortly after it. Mr Cusack also conducted an interview with the applicant, in which the applicant stated the following:
•As he was driving along the highway, he either received or made a couple of telephone calls. He had bad reception for his telephone at Blackwood, so he decided to stop on the freeway to make his calls before he got there. (Question 45).
•As he went over the rise, he pulled into the emergency side, to make his telephone calls, and he noticed a car pulling up behind him. The right hand indicator of that vehicle was operating. He put his arm out of the window and waved for that vehicle to go around him. He then saw the indicator come on as if the vehicle was going to pull out of the emergency side back into the traffic. (Questions 47 to 49). So he then continued his telephone call.
•He was in the left hand emergency lane, not the left hand lane (question 55). Later in the interview he said he could be mistaken but he intended to be in the emergency lane (question 117). Subsequently he agreed that there was a chance he could be mistaken about that (questions 242 to 245).
•He said he pulled over because he did not get reception in the town, so he thought he would finish his telephone calls off before he got there. When he pulled over he was going to telephone someone. He had a hands free telephone.
•He said that he saw the indicator on the vehicle behind him on, and that was the last thing he had seen before the impact. (Question 212).
Detective Sergeant Peter Bellion attended the scene shortly after 8.20 pm. He reconstructed the accident. He formed the view that the utility had stopped in the left lane, not in the emergency lane. In relation to Mr Stevenson’s vehicle, crash data retrieved from it showed that the cruise control was not active at the time of the collision, and that the vehicle speed was recorded as increasing from 106 kph to 109 kph in the two and a half seconds before the collision. During that period the engine speed increased, the accelerator pedal was depressed slightly more, and throttle percentages were increasing. The brakes were not applied before impact. The speed at impact was 109 kph.
Sergeant Bellion further stated that Mr Stevenson’s vehicle had an ABS braking system which would have enabled the vehicle travelling at 110 kph to stop in 47.6 metres to 52.9 metres if the brakes had been engaged, taking into account the average perception and reaction time of a motorist, at 110 kph, a vehicle such as Mr Stevenson’s could have been stopped between 93 metres and 99 metres from the time an obstacle was first sighted by the driver.
In response, the applicant led evidence of a senior forensic engineer, which was not related to the ground of appeal. He also called evidence from his father, Trevor Stanley Dunkley-Price, in relation to telephone calls made and received on the night of the collision.
Submissions
Counsel for the applicant accepted that the jury found, and was entitled to find, that at the relevant time the applicant’s vehicle was stopped in the left hand running lane of the highway, and not in the emergency lane. Consistently with the ground of appeal contained in the application for leave, counsel accepted that it was open to the jury to be satisfied beyond reasonable doubt that the action of the applicant in stopping his vehicle in the left hand running lane constituted gross negligence as that term is understood in the definition of culpable driving. Rather, it was submitted that it was not open to the jury to be satisfied beyond reasonable doubt that that action of the applicant caused the death of Ms Willmott and the serious injuries sustained by Ms Bewley.
In support of that submission, it was contended that, in practical terms, the most direct and obvious cause of the accident was the driving of Mr Stevenson. Counsel relied on the evidence of Sergeant Bellion, to the effect that there was no evidence that Mr Stevenson took any evasive action before colliding with the rear of the Magna vehicle. In addition, there was no evidence that he applied the brakes of his vehicle before the collision. On the contrary, there was evidence that the speed of Mr Stevenson’s vehicle increased in the immediate lead up to the collision with the Magna. There was no evidence that there was any other vehicle, or object, which prevented or impeded Mr Stevenson from diverting into the right hand lane to avoid colliding with the Magna. Thus it was submitted that the direct and immediate cause of the accident was the action of Mr Stevenson in ‘ploughing’ into the rear of the Magna.
On the other hand, it was pointed out that Ms Willmott was able to stop her vehicle behind the applicant when he brought his vehicle to a halt. All of the other vehicles, which approached from the same direction, were able to diverge around the two stationary vehicles. In that respect, counsel referred to the evidence of Messrs Cahill, Power, Warren, Harrison, Vesty, and Phelan. He submitted that while Mr Shillito may have experienced some difficulty, nevertheless he was able to negotiate around the stationary vehicles with safety.
In those circumstances, it was submitted that the jury could not have been satisfied beyond reasonable doubt that the conduct of the applicant, in stopping his vehicle in the left hand running lane, was more than the setting in which Mr Stevenson, through his dangerous driving, caused the accident by colliding at a high speed into the rear of the Magna, in circumstances when other vehicles had been able to safely avoid any impact with the two stationary vehicles. Accordingly, it was submitted that it was not open to the jury to conclude beyond reasonable doubt that the action of the applicant was a substantial and operative cause of the accident as a result of which Ms Willmott died and Ms Bewley sustained serious injuries.
In response, it was submitted that it was open to the jury to conclude beyond reasonable doubt that the action of the applicant, in stopping his vehicle in the left hand running lane of the highway, was a substantial and operative cause of the accident. Counsel for the respondent pointed out that the applicant stopped his vehicle, in the evening, on a busy highway, which had a maximum speed limit of 110 kph. In doing so, the applicant thereby created a real risk that other vehicles, travelling in the same direction behind him, might collide with his vehicle, or any vehicle that came to a halt behind him.
Counsel for the respondent pointed to the evidence of Ms Bewley that both she and Ms Willmott were very anxious, because Ms Willmott was not able to navigate around the stationary vehicle ahead of them. They were both nervous because that left them in a vulnerable position. It was the obstruction, caused by the applicant stopping his vehicle on the highway, that was an operative cause of the accident that subsequently ensued. Counsel pointed to the evidence of Messrs Shillito, Power and Warren, to the effect that the three vehicles, in which they were each either passengers or drivers, each had to take swift evasive action in order to avoid colliding with the vehicles that were stationary in the left hand lane. Thus, it was submitted that the applicant created a significant danger, which caused the Magna, driven by Ms Willmott, and in which Ms Bewley was a passenger, to be stranded behind him. In those circumstances, it was submitted that it was well open to the jury to be satisfied beyond reasonable doubt that the conduct of the applicant was a substantial and operative cause of the accident in which Ms Willmott died and Ms Bewley sustained serious injuries.
After the conclusion of oral argument, counsel, with the leave of the court, provided references, and brief further written submissions, as to the authorities on which they each relied in support of their submissions on the issue of causation. I refer to a number of those cases in the discussion that follows.
Causation — legal principles
The question, whether the driving of the applicant caused the death of Ms Willmott and the injuries sustained by Ms Bewley, was a question of fact for the jury, and not a question of law for the judge.[3] The question is to be approached by the jury as an exercise of common sense, and not by resort to philosophical or scientific theories.[4] It is recognised that there may be more than one cause of death. It is not necessary that the driving or conduct of the applicant be the sole or even the principal cause of the collision.[5] Ordinarily, the test to be applied by the jury is whether it is satisfied beyond reasonable doubt that the driving or conduct of the applicant was a substantial and operative cause of the accident.[6]
[3]R v Evans & Gardiner (No 2) [1976] VR 523, 527 (Young CJ, Gillard and Anderson JJ); R v Heron [2003] VSCA 76, [22] – [23] (Buchanan JA).
[4]Campbell v The Queen [1981] WAR 286, 290 (Burt CJ); Royall v R (1991) 172 CLR 378, 387 (Mason CJ), 411–12 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ).
[5]Royall v R (1991) 172 CLR 378, 398 (Brennan J), 425 (Toohey and Gaudron JJ).
[6]R v Evans & Gardiner [1976] VR 523, 528–9; R v Rudebeck [1999] VSCA 155, [66] (Ormiston JA); R v Heron (2003) 39 MVR 117, [20] (Buchanan JA); Guthridge v R (2010) 27 VR 452, 465 [114]–[115] (Neave and Redlich JJA, Coghlan AJA); R v Lee (2005) 12 VR 249, 250 [7] (Coldrey J); see also Royall v R (1991) 172 CLR 378, 411 (Deane and Dawson JJ); but cf 449, 451 (McHugh J); R v Moffatt [2000] NSWCCA 174, [71] (Wood CJ at Cl); Reynolds v R [2015] NSWCCA 29, [40] – [44] (Hall J).
The principles, relating to the law of causation in criminal cases involving a homicide, were conveniently stated by Brooking JA in R v Franklin in the following terms:
It is clear that for the purposes of the law of homicide there may be more than one cause of death and that criminal liability may attach to an actor even though the act was not the sole or even the ‘main’ or ‘most substantial’ cause of death. On the other hand, it is also clear that criminal liability will not attach unless the act was a ‘significant’ or ‘substantial’ cause of death. … The issue of the cause of death is of course one of fact for the jury … Putting to one side pure questions of fact (for example, which of two bullets struck the body, or whether death was due to trauma or some unrelated cause), there remains a wide variety of situations in which juries will need assistance from the judge when they come to consider what caused or contributed to the death. … The possible factual situations are infinite and even the categories to which they may be sought to be assigned are numerous.
One such category is that of the infliction of injuries by two or more assailants, acting independently and at substantially the same time. In such a case, where there is no complicating factor which may be put forward as ‘breaking the chain of causation’, it is enough for the jury to inquire whether the attack of the accused made a substantial contribution to the death. … .[7]
[7](2001) 3 VR 9, 28-29 [54]–[55]; see also R v Lam (2008) 185 A Crim R 453, 467–9 [61]–[64]; R v Withers [2009] VSCA 306, [135]–[136]; Aidid v R (2010) 25 VR 593, 602 [61] (Ashley JA).
In cases in which the question arises whether an action of the victim or the third party, subsequent to the action of the accused, has the effect of breaking the chain of causation between the accused’s action and the death or injury of the victim, different formulations of the applicable principles have been proffered in the cases, often depending on the specific factual issues that gave rise to that question. However, in essence, as Brooking JA stated in Franklin, the test, in such cases, remains the same. The question is whether, notwithstanding the subsequent action of the victim or the third party, the action of the accused remains a substantial and operative cause of the victim’s death or injury.[8]
[8]See for example R v Lam (2005) 15 VR 574, 578–9 [13]–[16], 581 [23] (Redlich J); R v Lam (2008) 185 A Crim R 453, 467 [58]–[59] (Buchanan, Vincent and Kellam JJA); McAuliffe v R (1995) 183 CLR 108, 118–19 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ).
In R v Smith,[9] the accused, a private soldier, was charged with the murder by stabbing of another soldier in his regiment, during a barrack room fight. The deceased man received two bayonet wounds, one of which pierced the lung and caused a haemorrhage. He was conveyed to a medical reception station, where he received treatment that was demonstrated to be ‘thoroughly bad’ and that ‘might well have affected his chances of recovery’.[10] It was contended on behalf of the appellant that as a result of that treatment, the victim’s death did not result from the wounds inflicted by him. Lord Parker CJ, delivering judgment for the Court Martial Appeals Court (which also comprised Streatfield and Hinchcliffe JJ), rejected that contention in the following terms:
It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.[11]
[9][1959] 2 QB 35.
[10]Ibid, 42.
[11]Ibid 42–43.
In R v Evans & Gardiner (No 2),[12] the deceased was stabbed in the stomach by the two applicants in April 1974. A bowel resection operation was successfully performed on him and he resumed an apparently healthy life. Eleven months later, he suffered abdominal pain. He received medical treatment but died eight days later. An autopsy showed that the cause of death was a fibrous ring causing a stricture in the small bowel at the site of the resection operation. Medical evidence was adduced on which it was open to the jury to find that the doctors, who performed the bowel resection operation in April 1974, should have diagnosed that condition, and that operative treatment would have rectified it. The Full Court (consisting of Young CJ, Gillard and Anderson JJ) held that it was open to the jury to be satisfied that the action of the applicants in stabbing the deceased caused his death. The court quoted with approval the passage from the judgment of the Court Marshall Appeals Court in R v Smith, to which I have referred, stating that that passage was ‘the most satisfactory expression of the law’ to be found in the authorities, with the qualification that the jury should be instructed that the burden was on the prosecution to prove that the act of the accused caused the death, despite the presence of another cause which the defence might claim was overwhelming.[13]
[12][1976] VR 523.
[13]Ibid, 529.
Analysis
In this case, the judge directed the jury in accordance with the principles just stated. Her Honour instructed the jury that the applicant’s driving did not need to have been the only cause of death, or the direct or immediate cause of death, provided that the jury was satisfied that the negligence of the applicant was a ‘substantial or significant’ cause of that result. Her Honour told the jury that it should approach that question in a common sense way, bearing in mind that its answers affected whether or not the applicant was to be held criminally responsible for his actions. The judge summarised the competing positions of the parties. In particular, her Honour told the jury that the prosecution had submitted that the applicant caused the death of Ms Willmott because he started the events by stopping in the left hand running lane, and Mr Stevenson finished it off when he came into collision with the rear of Ms Willmott’s vehicle. On the other hand, counsel for the applicant at trial had submitted that the death of Ms Willmott was caused by the driving of Mr Stevenson, who ‘slammed’ into the back of the Magna at 109 kph. In that respect, the judge reminded the jury of the evidence of Sergeant Bellion that if, 50 metres before impact, Mr Stevenson had applied his brakes, he would have stopped short of the stationary Magna vehicle occupied by Ms Willmott and Ms Bewley.
No exception was taken, at the trial or before this court, to the directions so given by the judge to the jury, on the issue of causation.
The question on this application is whether the verdict of the jury, that the negligence of the applicant caused the death of Ms Willmott, and the injuries of Ms Bewley, was unsafe and unsatisfactory. To establish the ground of appeal relied on, the applicant must demonstrate that it was not open to the jury, applying the directions given to it by the judge, to be satisfied beyond reasonable doubt that the negligence of the applicant was a substantial and operative cause of the death of Ms Willmott and the injuries of Ms Bewley.[14]
[14]M v The Queen (1994) 181 CLR 487, 493–4 (Mason CJ, Deane, Dawson and Toohey JJ); Libke v The Queen (2007) 230 CLR 559, 596–‘7 [113] (Hayne J); R v Klamo [2008] 18 VR 644, 653–‘4 [38]–[40] (Maxwell P); SKA v R (2011) 243 CLR 400, [21]–[22].
The courts have emphasised that the determination of questions of fact such as causation, is essentially the function of the jury.[15] The appellate court may only intervene where it concludes that the jury, acting reasonably, must have entertained a reasonable doubt as to an element of the offence for which the applicant has been convicted.[16]
[15]M v R (1994) 181 CLR 487, 493.
[16]Libke v The Queen (2007) 230 CLR 559, 597.
In this case, the starting point, for considering the issues raised by the applicant, is that, by its verdicts, the jury was satisfied beyond reasonable doubt that the action of the applicant, in stopping his vehicle in the left hand running lane of the highway in order to make and receive telephone calls, was an act of gross negligence constituting culpable driving by him. The judge, consistent with the definition of culpable driving prescribed by this Court in R v De’Zilwa,[17] instructed the jury that in order to constitute gross negligence, the driving of the applicant must have fallen so far short of the standard of care a reasonable person would have exercised, and involved ‘such a high risk of death or really serious injury’, that it deserved criminal punishment.
[17](2002) 5 VR 408, 423 [46] (Charles JA).
Thus, an essential component of the jury’s verdict, that the applicant was guilty of culpable driving, was the satisfaction of the jury beyond reasonable doubt that the action of the applicant, in stopping his vehicle on the highway, involved such a high risk of death or really serious injury to another that it merited criminal punishment. Self-evidently, the risk, constituted by that action of the applicant, in placing his stationary vehicle in the path of other vehicles proceeding in the same direction on the highway was that, in view of the lighting conditions and the speed limit applicable to those vehicles, they may not be able to avoid colliding with the applicant’s vehicle, or with any vehicle forced to stop behind the applicant’s vehicle, whether through error of judgment, inattention, or carelessness, or because the other vehicle’s view of the stationary vehicle might be impeded.
In this case, it is understandable that the jury would have reached such a conclusion. At the time of the accident, the highway was reasonably busy. Mr Warren gave evidence that the traffic conditions were quite busy, because people were then returning home from work. It was dark. The applicable speed limit was 110kph. On the evidence of Ms Bewley, the applicant’s vehicle was stationary for some time. At that point, motorists approaching in the same direction would ordinarily not expect to come upon a vehicle or vehicles that were stationary in the running lane of the highway.
It is correct, as counsel for the applicant pointed out, that the vehicles driven by Messrs Dobie, Shillito, Phelan, Cahill and Power all managed to avoid coming into collision with the applicant’s vehicle or Ms Willmott’s vehicle. Nevertheless, Mr Shillito said that he only narrowly missed colliding with those vehicles. Mr Warren stated that Mr Dobie had to swerve quite quickly in order to avoid the stationary vehicles. Mr Power described having to ‘quickly hit the brakes’ and check his mirrors, in order to be able to diverge into the right hand lane.
It is of course relevant, as counsel for the applicant points out, that Mr Stevenson was convicted of dangerous driving causing death and serious injury. The judge instructed the jury that, in order to convict either accused of such a charge, the jury must be satisfied beyond reasonable doubt that the particular accused’s driving involved a serious breach of the proper management or control of his vehicle which created ‘a real risk that members of the public in the vicinity would be killed, or seriously injured’.
Nevertheless, notwithstanding the jury’s verdict that Mr Stevenson was guilty of dangerous driving according to that definition, it was well open to the jury to be satisfied beyond reasonable doubt that the actions of the applicant, in stopping his vehicle on the highway, went well beyond being the mere ‘setting’ in which Mr Stevenson’s driving was the sole, substantial and operative cause of the accident. As I stated, the high risk of death or really serious injury, found by the jury to have been created by the applicant’s culpable driving, was that of a collision by vehicles travelling along the highway with the applicant’s vehicle, or any other vehicle forced to stop behind him. That risk, and the danger it posed to motorists travelling along the highway, or to any vehicle forced to stop behind the applicant, continued up to the time of the collision which ensued in this case. Ms Willmott was forced, by the applicant’s action, to stop her vehicle behind the applicant, and was not able to safely negotiate her vehicle around it. The actions of the applicant left her exposed and vulnerable to the type of collision that occurred. The fact that Mr Stevenson drove his vehicle in a manner that was dangerous, in accordance with the directions given to the jury, was not such as to necessarily ‘break the chain of causation’. Rather, the jury was entitled to be satisfied that the actions of the applicant, and the actions of Mr Stevenson in driving his vehicle, were co-existent substantial and operating causes of the collision that occurred.
In my view, as a matter of common sense, the jury was entitled to conclude beyond reasonable doubt — as it did — that there were two substantial and operative causes of the collision, namely, the action of the applicant in stopping on the highway (which constituted gross negligence as defined by the judge to the jury), together with the dangerous driving by Mr Stevenson of his vehicle. The jury was entitled to consider that those actions of the applicant, and that driving by Mr Stevenson, were each substantial and operative causes of the collision.
For those reasons, I consider that it was well open to the jury to be satisfied beyond reasonable doubt that the actions of the applicant in stopping his vehicle on the highway, which constituted gross negligence, was a substantial and operative cause of the accident as a result of which Ms Willmott died and Ms Bewley suffered serious injuries.
For those reasons, the application for leave to appeal against conviction should be refused.
GINNANE AJA:
I have had the benefit of reading in draft the reasons of Kaye JA and for those reasons agree that leave should be refused.
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