Ferguson v The Queen - [2020] VSCA 166

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0033

GEOFFREY FERGUSON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KAYE and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 June 2020
DATE OF JUDGMENT:	19 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 166
JUDGMENT APPEALED FROM:	DPP v Ferguson (County Court of Victoria, Judge Mullaly, 15 August 2018)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of one charge of culpable driving causing death, two charges of negligently causing serious injury and three charges of reckless conduct endangering life – Applicant’s vehicle moved onto incorrect side of the road and collided with another vehicle – Applicant engaged in a telephone conversation with his brother prior to and at the time of the collision using a hands-free Bluetooth device – Evidence of applicant’s brother that immediately before the collision applicant had a sustained and prolonged bout of coughing after which applicant was unresponsive – Evidence that applicant suffered from bibasal pneumonia at the time – Whether applicant’s driving at the time was conscious or voluntary – Whether verdict unreasonable or not supported having regard to the evidence – No evidence that applicant was not in a fit condition to safely drive the vehicle – Evidence that applicant was well rested – Expert evidence that applicant suffered an episode of unexpected loss of consciousness of brief duration immediately before the collision – Applicant’s driving of the vehicle at the time of the collision neither conscious nor voluntary – Leave to appeal granted – Appeal allowed – Applicant’s convictions on each charge quashed – Sentences imposed on applicant set aside – Verdicts of not guilty entered on the record.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J D Williams with Mr P J Smallwood	Doogue & George Pty Ltd
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA

EMERTON JA:

The applicant was convicted, by the jury empanelled on his trial in the County Court, of one charge of culpable driving causing death, two charges of negligently causing serious injury, and three charges of reckless conduct endangering life. The charges arose from a collision involving a vehicle driven by the applicant, and two other vehicles, on the Katamatite-Shepparton Road, Invergordon, on 26 October 2015. Very shortly before the collision, the vehicle driven by the applicant had moved onto the incorrect side of the road into the path of oncoming traffic. The applicant seeks leave to appeal against his conviction on the ground that each of the verdicts was unsafe and unsatisfactory in that it was not open to the jury to reject the defence that the applicant had suffered from an unforeseen syncopal episode immediately before his vehicle moved onto the incorrect side of the road.

At the time of the accident, the applicant was employed as a driver by Jeftomson Transport. The applicant had suffered from a chest infection and had been unwell for some days.…

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 Ferguson v The Queen

Details

AGLC: Geoffrey Ferguson v The Queen [2020] VSCA 166
Case: [2020] VSCA 166
Decision Date: 19 June 2020

CaseChat Overview and Summary

In the case of Ferguson v The Queen, the applicant appealed against his conviction for one charge of culpable driving causing death, two charges of negligently causing serious injury, and three charges of reckless conduct endangering life. The incident arose from the applicant’s vehicle moving onto the incorrect side of the road and colliding with another vehicle. The applicant had been engaged in a telephone conversation with his brother using a hands-free Bluetooth device at the time of the collision. The key issue before the court was whether the applicant's driving at the time of the collision was conscious and voluntary, given the evidence presented.

The court examined the evidence of the applicant’s brother, who testified that immediately before the collision, the applicant had a sustained and prolonged bout of coughing after which he was unresponsive. Additionally, it was established that the applicant suffered from bibasal pneumonia at the time of the incident. The court also considered expert evidence indicating that the applicant experienced an unexpected loss of consciousness of brief duration just before the collision. The court found that there was no evidence suggesting the applicant was not in a fit condition to safely drive the vehicle, nor that he was not well rested. However, the court concluded that the applicant's driving was neither conscious nor voluntary due to the unexpected loss of consciousness.

Given these findings, the court granted leave to appeal and allowed the appeal. The applicant's convictions on each charge were quashed, and the sentences imposed were set aside. The court entered verdicts of not guilty on the record, emphasising that the applicant's actions at the time of the collision were not the result of a conscious and voluntary decision.

Orders