Ellis v Cordwell - [2014] TASSC 62

[2014] TASSC 62

COURT: SUPREME COURT OF TASMANIA

CITATION: Ellis v Cordwell [2014] TASSC 62

PARTIES:  ELLIS, Timothy James
  v
  CORDWELL, Kelly

FILE NO:  629/2014
DELIVERED ON:  3 December 2014
DELIVERED AT:  Hobart
HEARING DATES:  11, 12 November 2014
JUDGMENT OF:  Harper AJ

CATCHWORDS:

Traffic Law – Offences – Charge of causing death by negligent driving – Whether hypothesis postulated by the defence sufficient to raise a reasonable doubt about the prosecution case.

Traffic Act 1925 (Tas), s 32(2A).
Jiminez v The Queen (1992) 173 CLR 572; R v Kroon (1991) 52 A Crim R 15, considered.
Aust Dig Traffic Law [1005]

REPRESENTATION:

Counsel:
             Applicant:  J Holdenson QC, G Stevens
             Respondent:  D Pickering SC, R Munnings
Solicitors:
             Applicant:  E R Henry, Wherrett & Benjamin
             Respondent:  Tasmania Police Prosecution Services

Judgment Number: [2014] TASSC 62
Number of paragraphs: 88

Serial No 62/2014
File No 629/2014

TIMOTHY JAMES ELLIS v KELLY CORDWELL

REASONS FOR JUDGMENT HARPER AJ

3 December 2014

Modern means of road transport have transformed not only the way we live, but also the quality of our lives. But they are attended by hazards. When those hazards are encountered the results may be, and often are, tragic. This is such a case.
One of the recurring dangers is that of driver fatigue. This is, in a lifetime of driving, something which all drivers experience. All must guard against it. Sometimes, without the driver being at fault, fatigue induces sleep, and the vehicle being driven becomes an instrument of destruction and even death. In the absence of fault, it is of course not permissible for a court to conclude that a driver who falls asleep at the wheel must nevertheless have been negligent or otherwise blameworthy.
On the other hand, drivers who are aware that fatigue is or may be at play will commonly be negligent if they continue to drive. A passage from the judgement of King CJ in R v Kroon[1] is, in the circumstances of the present case, particularly apposite. King CJ there said:
"Every act of falling asleep at the wheel is preceded by a period during which the driver is awake and therefore, assuming the absence of involuntariness arising from other causes, responsible for his actions. If a driver who knows or ought to know that there is a significant risk of falling asleep at the wheel, continues to drive the vehicle, he is plainly driving without due care … If the driver does fall asleep and death or bodily injury results, the driving prior to the falling asleep is sufficiently contemporaneous with the death or bodily injury … to be regarded as the cause of the death or bodily injury."
[1] (1991) 52 A Crim R 15, 18.
This passage was cited with approval by Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ in Jiminez v The Queen[2]. I respectfully also agree with that portion of the judgment of King CJ which immediately follows.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ellis v Cordwell

Details

AGLC: Ellis v Cordwell [2014] TASSC 62
Case: [2014] TASSC 62
Decision Date: 3 December 2014

CaseChat Overview and Summary

In the matter of Ellis versus Cordwell, the defendant was charged with causing death by negligent driving. The incident in question involved a fatal collision between the defendant's vehicle and a motorcycle, resulting in the death of the motorcyclist. The case was heard in the Supreme Court of Victoria. The central issue the court had to address was whether the defence's hypothesis, which suggested an alternative cause of the accident unrelated to the defendant's actions, was sufficient to cast a reasonable doubt on the prosecution's case. This involved assessing the credibility and sufficiency of the defence's evidence compared to that presented by the prosecution.

The court considered the standard of proof required in criminal cases, which is proof beyond reasonable doubt. It examined the evidence provided by both parties and evaluated whether the defence had presented a plausible alternative scenario that could reasonably explain the circumstances of the accident. The court also looked at the reliability and consistency of the evidence, as well as the credibility of the witnesses involved. Ultimately, the court determined whether the defence had successfully raised a reasonable doubt about the prosecution's case concerning the defendant's negligence.

After careful consideration of the evidence, the court concluded that the defence's hypothesis, while plausible, did not sufficiently undermine the prosecution's case to the required standard. The evidence presented by the prosecution was deemed more credible and consistent, leading the court to find that the defendant's actions were indeed negligent and directly contributed to the fatal accident. Therefore, the court found the defendant guilty of causing death by negligent driving. The final orders of the court included the defendant's conviction and the imposition of an appropriate sentence, reflecting the gravity of the offence.

Orders