Grewal v The Queen
[2011] VSCA 331
•2 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0338
| NAVDEEP GREWAL | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | REDLICH and MANDIE JJA, WHELAN AJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 27 September 2011 |
DATE OF JUDGMENT: | 2 November 2011 |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 331 |
JUDGMENT APPEALED FROM: | DPP v Grewal (Unreported, County Court, Judge Tinney, Date of Conviction: 9 September 2010); DPP v Grewal [2010] VCC 1330, Date of Sentence: 16 September 2010 |
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CRIMINAL LAW – Dangerous driving and failure to stop and assist – Application for leave to appeal against conviction – Whether trial judge should have given Edwards direction in relation to post-offence conduct (flight and later attendance at police station) – Whether trial judge advanced to the jury an alternative path to guilt – Whether trial judge erred in directions relating to admissions in the record of interview – Application refused.
CRIMINAL LAW – Sentencing – Whether sentencing judge erred by sentencing the applicant on a factual basis beyond that available having regard to the evidence, the conduct of the trial and the verdict of the jury – Whether the sentences for failure to stop and assist involved double punishment – Application granted, appeal allowed and appellant re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr O P Holdenson QC with Ms A Kapitaniak | Vernon Da Gama & Associates |
| For the Crown | Mr P B Kidd | Office of Public Prosecutions |
REDLICH JA:
I agree for the reasons stated by Mandie JA that the application for leave to appeal against conviction should be refused. I would allow the appeal against sentence and re-sentence the applicant in the manner proposed by Mandie JA.
MANDIE JA:
Introduction
The applicant was found guilty by a County Court jury on one count of dangerous driving causing serious injury (count 2),[1] one count of failing to stop his vehicle, a taxi, after an accident involving serious injury to a person (count 3)[2] and one count of failing to render assistance after an accident (count 4).[3] The applicant was acquitted of negligently doing an act that caused serious injury to another person (count 1).[4] On 16 September 2010, the applicant was sentenced to two years and six months’ imprisonment on count 2, two years’ imprisonment on count 3 and two years imprisonment on count 4. It was directed that nine months of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 2, resulting in a total effective sentence of three years and three months and a non-
[1]Section 319(1A) of the Crimes Act 1958 provides that a person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes serious injury to another person, is guilty of an indictable offence (5 years maximum).
[2]Sections 61(1)(a) and (3) of the Road Safety Act 1986 provide in substance that the driver of a motor vehicle who knows or ought reasonably to have known that an accident involving his motor vehicle had occurred and that the accident had resulted in a person suffering serious injury and who fails to immediately stop his vehicle is guilty of an indictable offence (10 years maximum).
[3]Sections 61(1)(b) and (3) of the Road Safety Act 1986 provide in substance that the driver of a motor vehicle who knows or ought reasonably to have known that an accident involving his motor vehicle had occurred and that the accident had resulted in a person suffering serious injury and who fails to immediately render such assistance as he can is guilty of an indictable offence (10 years maximum).
[4]Section 24 of the Crimes Act 1958 provides that a person who, by negligently doing or omitting to do an act, causes serious injury to another person is guilty of an indictable offence (10 years maximum).
parole period of 22 months was fixed.[5] The applicant seeks leave to appeal against conviction, or if the conviction is sustained, against sentence.
[5]An order was made for the cancellation of all of the applicant’s licenses and his disqualification from obtaining another license for driving in the State of Victoria for 18 months, pursuant to s 89 of the Sentencing Act 1991. The applicant’s license was also cancelled and he was disqualified from obtaining another license for driving in Victoria for a period of four years pursuant to s 61 of the Road Safety Act 1986.
Facts
The facts giving rise to these offences were as follows. In the early morning of Saturday 8 December 2007, three friends (Mr Chand, Mr Shresthra and Mr Regmi) hailed a taxi driven by the applicant outside a nightclub in Prahran and directed the taxi to take them to an address in The Avenue, Balaclava. When they arrived, there was an argument about the fare the details of which need not be stated, save that the applicant asked for $15 which Mr Chand thought was too much and Mr Shresthra eventually went into the house and returned with $10 which he gave to the applicant, after which the argument continued. Mr Chand was very drunk and all that he remembered about what happened next was that he saw the headlight of the taxi coming towards him and the taxi hit him – his next memory was being in an ambulance.
There was an independent eye-witness to what occurred. Mr Jeffs, an earth moving contractor, had parked his truck in The Avenue, facing east. He was sitting in the driver’s seat which was about 1.5 meters above street level and had a clear view of the relevant events. He saw one of the passengers get out of the taxi and go into some units and come back to pay the driver. He then saw two other passengers get out of the taxi and all three of them walked to the other side of the road. He testified that the taxi performed a three-point turn and that, as it was reversing backwards, one of the passengers walked back onto the road about five to ten meters in front of the taxi. Mr Jeffs said that the taxi driver ‘just put the foot down and hit him and I saw him flying from one side of the road to the other.’ Mr Jeffs said that he heard a thud and saw the man ‘flying across the road’. He used his phone to dial 000 and call for an ambulance. Mr Jeffs said that he saw the taxi continue at great speed up to the end of the street (i.e. in an easterly direction) and then turn left up Hotham Street. Mr Jeffs said that the taxi did not hesitate, did not stop, did not pull up at all or brake.
One of the passengers, Mr Shresthra, also gave evidence. He said that he was a little bit drunk. He was the one who went in to get the money to pay the fare and he testified that his friends were quarrelling with the applicant. He said that Mr Chand went onto the road and stood in front of the taxi and that, ‘then the taxi driver just, I don’t know, just bang him’ and then the taxi drove off very swiftly.
Mr Chand had abrasions to the left elbow and left flank, a skin defect over the left ankle approximately 5 cm in size, with tendons exposed, indicating that it was a full thickness skin defect. He also had some bruising over the left temporal frontal region of the skull and a fracture to the vault of the skull.
The applicant also gave evidence. He described the argument and remembered being called a ‘fucking Indian’. He said that Mr Chand came up to the passenger side bonnet of his taxi while it was stationary and banged his right hand or fist on it, swearing at the same time. The applicant said that Mr Chand then attempted to move across the front of his taxi to the driver’s side and that he moved his car as slowly as possible, to block him from doing so. He said that Mr Chand was able to move across to the driver’s side at which point he put his foot on the brake. He said that Mr Chand was ‘facing towards me and walking towards the other side trying to push the car with his legs towards the back’ and then ‘he just walks, he took three or four steps, stumbling … he fell towards me.’ The applicant said that he drove off at a normal speed. He denied accelerating his taxi directly into Mr Chand. The applicant said that he looked in his rear view mirror before turning out of the street and saw Mr Chand still on the ground. The applicant then took a radio booking that he had and, after delivering his next passenger, went to the South Melbourne police station to report the incident.
Grounds of appeal against conviction
The applicant relied on the following four grounds, contending that a miscarriage of justice was occasioned:
1.By reason of the trial judge’s failure at all to direct the jury on its treatment of that part of the applicant post-offence conduct capable of, and relied upon by the Prosecution as, evidencing on his part an implied admission or a consciousness of his own guilt. In particular, the judge erred by failing to direct the jury relevantly on the applicant’s
(a) flight following the alleged collision; and, in particular,
(b) voluntary attendance at the South Melbourne Police Complex.
2. By the trial judge charging in terms which invited the jury to reason toward guilt on counts 2, 3 and 4 upon a basis which was:
(a)neither relied upon nor urged by the Prosecution and Defence; and
(b)calculated or prone to elicit from the jury a guilty verdict on the lesser alternative (count 2)
3. By the trial judge’s directions on admissions. In particular, the judge erred by directing that answers to questions in the applicant’s record of interview which the jury could not be satisfied were either:
(a) said; or
(b) true
were capable of bearing upon the applicant’s credibility.
4. By accumulation of some or all the errors pleaded under cover of grounds 1, 2 and 3.
Implied admissions or ‘consciousness of guilt’ (ground 1)
The applicant submitted that the judge should have given directions to the jury concerning consciousness of guilt but had failed to do so. The applicant contended that, although the prosecution had not expressly relied upon any facts or matters as showing a consciousness or realisation of guilt, there was in the context of the case a real danger that the jury might have considered the applicant’s post-offence conduct as evidence of consciousness of guilt.[6]
[6]See Dhanhoa v R (2003) 217 CLR 1 [34].
The applicant referred to the evidence adduced from Mr Jeffs as to the applicant having departed at great speed after the impact and having failed to stop. The applicant submitted that that evidence of Mr Jeffs, coupled with the evidence of the applicant’s subsequent attendance at the police station, might well have been treated by the jury as being relevant to the applicant’s guilt in relation to an impact by his taxi with Mr Chand.
The applicant referred to what was said by the prosecutor in his closing address, as follows:
Well, ladies and gentlemen, it's an accident because even on his version of events he's got a fellow who's fallen on the ground and has stopped yelling, if you accept that he was, and is not moving.
And how does he react to that? He drives off. He sees the man lying next to him on the road and he drives off. Now, you might say, ‘Well, look, one of the factors I would take into account is whether I was scared and whether these other two fellows might come out and start fighting me, and I might be frightened of that and that might be a very sensible question to ask.’ But you've got in your car, being a taxi, you've got an alarm, which will tell people you're in trouble. You've got a global positioning system which will indicate your position. You've got a radio you can use. You've got your mobile phone. You've got electric windows which you can wind up and presumably lock the car to protect yourself and say, ‘Help. Dial 000. I need assistance. This man's trying to attack me and he's fallen down next to my car.’
He didn't do any of that. His evidence to you this morning was, ‘I don't care how seriously injured a person is; I'm not getting out and stopping.’ Let's just accept that. Just for the sake of this argument, let's just accept that that's right. Why don't you stop at the end of the street when you look in your rear vision mirror and you see a man who's down on the ground in the area where he fell next to your cab and his two friends are assisting him? You're now out of the immediate area of danger. You're not worried about the two other men coming to attack you, or even if you are, you're far enough away to move away again at a later stage. Why not then ring 000?
Mr Grewal's answers on this are important because they place him in a dilemma. His evidence was, ‘I didn't think there was anything wrong. Not a problem, so I can drive off.’ It's only when he's halfway to Port Melbourne with the fare from Hotham Street that he starts to think to himself, says he, ‘I wonder whether this fellow's hit his head.’ You've really got to ask yourself, why wasn't he thinking that back at the avenue with the bloke lying on the road next to him? Why not put your head out the window and say, ‘You OK mate? You all right?’ Not even that. Don't be involved in the minutiae of the facts that we do not have to prove. Look at the incident itself. Look at the surrounding circumstances. Mr Grewal says that in this situation, what he did was appropriate. We say it's not, we say that he was angry.
You saw how angry he got with me this morning, just asking questions which anyone would need to know, or you'd think, that the prosecutor is going to ask me these questions, and yet, Mr Grewal was getting, as he said, ‘I'm getting angry with you.’ As I perhaps too lightly replied, ‘Not the first.’ If he's getting that angry with me, what's he thinking with this bloke who's shouting abuse and insulting him? What's he thinking about this bloke who's mucked him around for the last ten minutes with the other two fellas? And when this bloke comes and stands in front of his car, how angry is he getting then? How angry is he getting with this fellow who's creating a real problem?
In our submission to you, he's getting angry enough to put his foot down on the accelerator to rev the engine of the car as described by Mr Jeffs and you'll find all of this at 71 and 74 of the transcript as you go through it. Getting angry enough to put his foot down on the accelerator and take off, and hit this bloke so hard as to catapult him across the street.
And angry enough not to care what happened and just take off around the corner. And angry enough, when he got to the corner, to look back and see this fellow is still on the road, to consciously choose not to do anything about it. This was not mere flight for flight's sake out of panic. ‘Oh my god, what have I done? I had better get out of here.’ This was ‘It's nothing wrong with him, just an incident, I'm going.’ According to Mr Grewal. And when he sees him on the road, back there, in his rear vision mirror when he's turning out of the avenue into Hotham street: ‘Who cares.’
I interpolate here that it appears that the prosecutor was seeking to rely on the applicant’s speedy departure from the scene as evidence of his angry state and as therefore relevant to counts 1 and 2 to that extent, and also, of course, seeking to rely on that conduct as being relevant to counts 3 and 4. The prosecutor expressly disclaimed any contention that the applicant’s flight was ‘out of panic’ and did not suggest that his flight arose from any realisation of guilt. That said, as was conceded by counsel for the respondent on the appeal, it is obvious that the prosecutor referred to the applicant’s anger in support of the contention that the applicant was sufficiently angry to depart the scene, while knowing that his vehicle had impacted with and seriously injured Mr Chand.
However, I also note that, in his opening address to the jury, the prosecutor said that, after the applicant had attended to his subsequent fare, he went to the South Melbourne Police Station and reported there to a Constable Caulfield who the prosecution would not be calling to give evidence. The prosecutor then said that, at that time, the applicant said to Constable Caulfield words to the effect that he thought the police might be looking for him in relation to an incident or an accident in Balaclava. Again, as conceded on the appeal, this reference by the prosecution was directed to showing that the applicant was aware that his vehicle had impacted with and seriously injured Mr Chand.
Returning to the applicant’s submissions, reference was also made to the cross-examination of the applicant on this topic and to questions asked by the trial judge during the course of that cross-examination. A number of pages of transcript were referred to but pertinent extracts are as follows:
HIS HONOUR:
Q: You didn't look at what?
A:As I was moving from - when he fell and I move off, I didn't look back again. I only looked when I stopped.
Q:You say you looked when you got to the end of The Avenue, though; you stopped your vehicle?
A:Yes, sir.
Q: And you looked back at that point?
A: I looked back at that point.
Q: And you have a man still on the ground?
A: Yes, sir.
Q: So that's what happened.MR HEVEY:
Q: Thank you, Your Honour. At that point did you think to yourself I wonder whether he might be hurt?
A: No, sir.
Q:Did you think to yourself: I had better get on the radio or my mobile phone or any system and tell someone there has been an incident?
A:Nothing came into my head at that time. The only thing that came into my head was a bit of relief moving off.
Q:So it was your personal relief of moving off after the incident and that was all that was concerning you at that time?
A:I was just referring to your question, you are referring to this accident as an incident, which I reckon this accident as an incident.
…
Q:So as far as you are concerned, this drunk has fallen over and that's his problem, isn't it?
A:Yes, sir.
Q: So you drive off?
A: Yes, sir.Q:So you go around and you pick up your next fare, you go and deliver your next fare to Williamstown Road and then you decide to go to the police station; why?
A:I told you as I was - I picked up the fare, I was still thinking of this incident what happened. The relief. I moved out of it. It's just rational behaviour.
Q: Sorry, it's just what behaviour?
A:It's just rational behaviour when someone says something to you, it keeps stuck in your head: why people do that? why people do that? I was just thinking and at that time it just - it came to my head. I am thinking that maybe he has hit his head and maybe he has some injury or something or maybe not or maybe yes but I should go and report this incident and if I go to the channel, the only advice I would have got from the channel was ‘report this incident to the police’. They wouldn't have suggested me to call an ambulance or something because I didn't know he has any injury. They ask me if the person has any injury. Only then they ask for ambulance. But I don't know what his injury is or if he has any injury or what he require or not. It's just like I think maybe he has banged his head.
…
Q:Let's go to what was said when you got to the police station?
A:Yes, sir.
Q:Didn't you say to the man at the counter, Constable Caulfield, that you thought ‘police might be looking for him’, that is, looking for you?
A:No, sir.
Q:Listen. You thought the police might be looking for you in relation to an accident in Balaclava?
A:No, sir. I didn't say those words and I objected to this statement. I happened to - I think I rang you - - -
HIS HONOUR:
Q: You have answered the question?
A: No, sir, those are not my words.…
(His Honour then asked a number of questions, after which his Honour asked:)
Q:Didn't this happen straight in front of you?
A:What thing, sir?
Q: Well, the person falling?
A:Yes, he did fall in front of me but, I don't know, I didn't think anything at that time. The only thing that was in my head was just getting off, moving off, leaving the situation, that's all I was thinking.
Q: So why did you go to the police station?
A:As I told you, sir, halfway, as I was thinking all the way when I picked up a passenger and the more I think of this thing, what has happened, why did I do that. Just this thing came in my head maybe he has hit his head and got an injury, I should have report anything. Anything happens in a cab you should report it so that's what I tried to do.
The applicant also referred to the passages in the judge’s charge in which his Honour summarised the evidence about the applicant’s post-offence conduct and his explanation for it.
The applicant submitted that, therefore, in all the circumstances of the trial, the judge should have given a direction about consciousness of guilt[7] in relation to the conduct of the applicant in driving from the scene and later attending the police station (‘post-offence conduct’). The applicant submitted, in the alternative, that a Zoneff direction[8] should have been given.
[7]That is, a direction as required by Edwards v R (1993) 178 CLR 193 and as adapted to post-offence conduct other than lies.
[8]Zoneff v R (2000) 200 CLR 234.
When asked from the bench precisely what direction the judge should have given, senior counsel for the applicant, Mr Holdenson QC, submitted that the jury needed to be told in clear and unequivocal terms of the matters to be taken into account in order to determine whether or not the evidence of the applicant’s post-offence conduct could be used as an implied admission. Mr Holdenson conceded that the facts constituting the applicant’s post-offence conduct were plainly identified during the course of the judge’s charge. Mr Holdenson further conceded that the judge had reminded the jury of what the applicant’s explanation was for his post-offence conduct. However, Mr Holdenson submitted that the judge should have told the jury that they could not use a finding that the applicant realised that his driving had caused the injury as evidence in support of counts 1 and 2, unless they were satisfied that the reason for his post-offence conduct was his consciousness or realisation of guilt in relation to the manner of his driving (being the alleged conduct comprising counts 1 and 2). In other words, as Mr Holdenson finally put it, the jury should have been told that they could not use the applicant’s post-offence conduct in relation to his guilt on counts 1 and 2 unless they rejected (as a reasonable possibility) his explanation for that post-offence conduct.
In response, the respondent submitted that the applicant’s post-offence conduct was not relied upon as an admission of guilt but only as being relevant to the question whether the applicant knew of an impact by his taxi with Mr Chand and of Mr Chand’s resulting serious injury. The Crown sought to prove that the applicant knew or ought reasonably to have known that the accident had occurred and had resulted in Mr Chand suffering serious injury, within the meaning of s 61(3)(b) of the Road Safety Act and the forensic investigation of his post-offence conduct was relevant to that question. Further, the respondent pointed out that the defence had adduced evidence in chief from the applicant as to what had happened, what he saw, why he did not stop and why he went to the police station. The respondent added that the judge’s questions were directed to the same aspect, namely, the reason why the applicant had gone to the police station if he was unaware of any impact with Mr Chand.
The respondent said that the judge had properly given the usual general instructions about the drawing of inferences[9] and about the onus of proof beyond a reasonable doubt remaining on the prosecution even if the jury rejected the applicant’s evidence.[10] Further, the judge had fairly summarised the prosecution and defence cases in that regard as follows:
The prosecution say as a judgment to that fact, look at the reaction of a person not behind the wheel of a vehicle but a person 150 metres down the road, who from his position, uninvolved in this scene, jumps from his rig runs, ringing Triple 0, how is it possible then in that setting for a driver some feet away not to be aware of the fact of the accident and the fact of serious injury being sustained? That is the argument. Of course the accused has a totally different argument and you will be the judge of the facts in this case, the accused man says through his counsel and indeed directly to you in his evidence, there was no impact. He fell, this was not an accident, it was not an accident involving a vehicle at all. Quite aside from that, ‘I didn't know that there was any serious injury, he fell over, I've fallen over myself, the most I expected was a bruise or a scratch’. The prosecution point to the evidence or his leaving the scene, getting to the end of it and looking back and still seeing the man on the ground. They rely upon that as further support for his knowledge of the serious injury.
Of course the accused man says in relation to that aspect, ‘I didn't think then that there were serious injuries at all. I just wanted to get away from the area. In any event it was not an accident.’ The prosecution point to the fact that he then goes to the police station and he knows what he is involved in is an accident, so the argument goes and one that supports the proposition that he was aware there was a serious injury. The defence have placed before you by way of the evidence of the accused man that process of thinking.
‘I was thinking it through with these events, not there and then at the scene, but as I was then involved in that journey down to Port Melbourne.’ His thought processes of thinking back, he did not get off the ground and then putting these things together as he leaves. It is not a recognition by him, he says, of an accident, ‘there wasn't one. But nor do I have any knowledge of there being a serious injury and I went to the police as a matter of completeness when I was thinking through these things.’
[9]T 293.
[10]T 302.
The respondent submitted that the judge had satisfied the requirements of Edwards in substance, and satisfactorily for the purposes of the case, by thus stating the competing hypotheses as to the reasons for the applicant’s post-offence conduct.
Finally, the respondent relied upon the fact that an Edwards direction had not been requested and that no exception was taken to the judge’s charge.
In R v Cuenco,[11] Nettle JA (with whom Maxwell P and Redlich JA agreed) said that the general rule was that an Edwards direction should only be given if the prosecution contended that specified post-offence conduct was evidence of consciousness of guilt and that, if the prosecution did not so contend, it was sufficient to guard against the possibility of the jury mistaking the effect of any post-offence conduct as evidence of consciousness of guilt to give a Zoneff direction.[12] Nettle JA went on to say that there were cases in which the risk of misunderstanding on the part of the jury as to the use which they might make of post-offence conduct was such that a judge should give an Edwards direction notwithstanding that the prosecution had not put that the post-offence conduct showed a consciousness of guilt.[13]
[11][2007] VSCA 41.
[12][2007] VSCA 41, [15], [16].
[13]Nettle JA referred to a number of authorities in addition to Edwards and Zoneff, namely Dhanhoa v R (2003) 217 CLR 1, R v Nguyen (2001) 118 A Crim R 479 and R v Chang (2003) 7 VR 236.
In my opinion, this ground should be rejected. I do not consider that there was any real danger that the jury would use the evidence of the applicant’s ‘flight’ from the scene as evidence of an implied admission of guilt in relation to count 1 or 2 in circumstances where the prosecution had not advanced such a specific contention. It had been relied upon for the reasons I have previously discussed.[14] Further, a judicial direction that the jury could not use the applicant’s ‘flight’ as an implied admission of his guilt on counts 1 and 2 unless they rejected (as a reasonable possibility) his explanation for his ‘flight’ would have been prejudicial to the applicant in circumstances where the prosecution did not contend that the jury should use the applicant’s flight in this way. Judicial directions of the kind advanced in argument on behalf of the applicant have the same vices and, in my view, would also have been likely to confuse the jury.
[14]See [11] above.
The applicant’s attendance at the police station potentially had a different quality – in the context, it was naturally capable of being treated by the jury as evidence of the applicant’s realisation, not only that there had been an impact and an injury, but also that his mode of driving was culpable, although this was not expressly contended by the prosecution.
In any event, I do not think that the judge’s directions were deficient either in relation to the aspect of flight or in relation to the applicant’s attendance at the police station. The jury was given appropriate directions about separate consideration of each count and about the onus of proof remaining on the prosecution even if the applicant’s evidence was rejected. More particularly, the judge directed the jury that they must not rely on an inference as proof of one of the elements of an offence or of a fact which was significant in establishing an element of an offence unless they were satisfied beyond reasonable doubt of the facts on which they based the inference and that the inference was the only reasonable inference to be drawn from those facts.[15] This direction was repeated by the judge, by way of example in relation to counts 3 and 4.[16] Then, later, the judge said:[17]
The prosecution point to the evidence of his leaving the scene, getting to the end of it and looking back and still seeing the man on the ground. They rely upon that as further support for his knowledge of the serious injury. Of course the accused man says in relation to that aspect ‘I didn’t think then that there were serious injuries at all. I just wanted to get away from the area. In any event it was not an accident.’ The prosecution point to the fact that he then goes to the police station and he knows what he is involved in is an accident, so the argument goes, and one that supports the proposition that he was aware there was a serious injury. The defence have placed before you by way of the evidence of the accused man the process of thinking: ‘I was thinking it through with these events, not there and then at the scene, but as I was then involved in that journey down to Port Melbourne.’ His thought processes of thinking back, he did not get off the ground and then putting these things together as he leaves. It is not a recognition by him, he says, of an accident. ‘There wasn’t one. But nor do I have any knowledge of there being a serious injury and I went to the police as a matter of completeness when I was thinking through these things.’ Now, I am paraphrasing obviously as you would be aware. Well, again it seems to me the outcome in relation to this matter will be driven by your finding as to the facts.
[15]T 293.
[16]T 297–8.
[17]T 361–2.
Thus, the judge identified, at some length, the applicant’s explanation for attending at the police station. When the charge is considered in its entirety, this issue, the competing explanations that were available and the need for the jury to exclude his explanation beyond reasonable doubt if they were to infer from this conduct that he was aware that he had struck the victim and caused him injury would have been apparent to the jury. Although it would have been preferable for the judge to have repeated his direction about inferences in the context of dealing with the post offence conduct, I am of the view that he sufficiently directed them about inferences (twice) as referred to earlier. In my view, no further direction was necessary whether of an Edwards or a Zoneff type.[18] That it was unnecessary to give any further direction is supported by the defence failure to take any exception, make any complaint or request any such further direction.
[18]Indeed, the applicant did not identify the form of Zoneff direction that would have been appropriate.
Introduction of alternative path to guilt (ground 2)
The applicant submitted that the judge had, in his charge, and without prior notice to the parties, impermissibly introduced an alternative factual basis for finding the applicant guilty on the driving charges, in particular on count 2. The judge contrasted the evidence of Mr Jeffs as to the applicant’s solid impact with Mr Chand and the evidence of the applicant that there was no contact at all. The judge said that if the jury was not satisfied beyond a reasonable doubt that there was an impact then there was ‘no obligation as a matter of law, and you have got no causation.’ The judge then said:
That is really effectively what is being run as part of the defence case. So that is on the one extreme, it is one end of the spectrum. On the other, of course, is Mr Jeffs, and the gunning of the engines. His back dips down and he takes off. Mr Brandon sensibly says I think in relation to that, and concedes as much in his address to you: ‘If you find beyond reasonable doubt that that is the position, then you won't have much difficulty in terms of the negligently causing serious injury.’ But he says to you ‘There are very many reasons why you should not act on Mr Jeffs' evidence.’
They are the extremes. I suppose there is a mid position and you have to reach your own findings, not us, at all. I suppose a mid position might be one where there is not the gunning of the engines, not driving from a distance, but moving forward slowly and striking him in that setting. All right. Well, if you find yourself in that position is that to be correctly classified as grossly negligent or dangerous driving as I have defined it? That is entirely for your consideration, but in that setting - and by the way it is not a setting that is urged upon you by the accused, of course, it is not the account that he provides, though you will see that there is an aspect of Mr Shresthra's evidence that perhaps is closer to that point than to the position of Mr Jeffs.
But if you find yourself in that position, again you will apply those directions of law to make some judgment about the departure or deviation from the standards. Is it to be correctly described as gross negligence? Is it correctly described as an act of dangerous driving? That would depend, no doubt, upon such findings as you make as to the standards of a reasonable and prudent driver. You would import into that factor, no doubt, the particular circumstances of the driver. In one particular circumstance in that setting, not the setting though that is advanced by the accused. There would be a level of hostility out on the street, the fact of there being quarrelling and the fact of there being people out on the street.
But of course, as I say, that is not the account urged upon you by the prosecution or indeed by the defence because they are poles apart when you examine it. You have Mr Jeffs on the one extreme, and you have the accused on the other.
I cannot guide in any particular direction. It is not my job to. You understand the arguments of the prosecution in support of the first two counts on the presentment, obviously Count 1 is the major way in which the prosecution cast their case. Count 2 is a lesser alternative. That is it is deliberate driving at pace striking him in that setting. ‘If that is not grossly negligent, what is?’ is the implied argument in the prosecution case. The defence argument, of course, is ‘It's stationery, this is a stationery car. This man was drunk, he fell over. There is no impact. What is grossly negligent about stopping and putting your foot on the brake; how can there be any breach in that setting, any deviation from a prudent standard?’ That is exactly what a prudent driver would do, put his foot on the brake and stop. So you see the different cases.[19]
[19]Emphasis added.
The applicant said that this ‘mid-position’ scenario was never put to the accused in cross-examination and the parties had been denied the opportunity to deal with it in their addresses to the jury. It was submitted that the judge should have warned the parties about it prior to closing addresses.
The applicant referred to R v Nguyen,[20] a case in which the judge had expanded the Crown case beyond the legal basis upon which the Crown had conducted the trial without giving the defence any prior warning. The applicant also referred to Robinson v R[21] in particular stressing the following passage:[22]
Unfairness to the accused in the conduct of the trial resulting from the trial judge's direction to the jury upon a basis for conviction not relied upon by the Crown may arise from a range of tactical disadvantages, including an inability to cross-examine Crown witnesses, adduce evidence in the defence case and make closing submissions to the jury on the matter ... Even if the prejudice to the accused was confined to the inability to address the jury upon the question, that itself is capable of being a most significant area of prejudice …
… where the trial judge raises in the summing up a basis for conviction which was not relied upon by the Crown, there is the added difficulty that the direction carries particular force because it is coming from the judge and not the Crown ... It may produce positive mischief if the judge raises arguments which could have been, but which were not put or requested by counsel …[23]
[20][2006] VSCA 293 [17]-[19], [28]-[30].
[21](2006) 162 A Crim R 88, [139]-[140], [145], [146], [148] (Supreme Court of New South Wales (Court of Criminal Appeal)).
[22](2006) 162 A Crim R 88, [146, [148].
[23]Citations omitted.
In answer, the respondent submitted that the judge had not advanced a new legal basis for conviction but had raised a factual matter or factual matters arising from the evidence, in particular the evidence of Mr Shresthra. The respondent further submitted that, in any event, defence counsel had anticipated the judge’s position in his own closing address (although the judge had not acknowledged this). The respondent said that defence counsel had told the jury that Mr Shresthra’s evidence was very largely consistent with that of the applicant and entirely inconsistent with Mr Jeffs’ account but that:[24]
[24]T 27.
[Unfortunately], in relation to Mr Shresthra, his memory gets quite vague as to how Mr Chand came to fall onto the road. He does not say that the taxi drove at any speed at Mr Chand. He does not say that after Mr Chand goes to the ground, that the taxi accelerates away. He doesn’t hear a thud. He doesn’t hear the engine accelerate heavily. All these matters are different to what Mr Jeffs told you. All of these matters are consistent with what Mr Grewal says…
and that later defence counsel said to the jury:[25]
This is not a case where a person should have known better in the sense that it was a very low impact event. There was no high speed impact with Mr Chand that would give the ordinary person cause to be concerned about whether there would be serious injuries.
…
In relation to Counts 3 and 4, you would not be satisfied beyond reasonable doubt that an accident had occurred based on the evidence that you've heard, but even if you were so satisfied of that, you would not be satisfied beyond reasonable doubt that Mr Grewal knew or ought to reasonably have known that any accident that had occurred had resulted in a person suffering serious injuries.
[25]T 31-32.
The respondent submitted that the ‘mid-position’ described by the judge was therefore in line with part of the defence argument and assisted the defence to that extent.
In my opinion, the respondent’s submissions are correct. The ‘mid-position’ described by the judge was inherent in the evidence and it had been anticipated and in substance put to the jury by defence counsel. The judge did not advance a new legal basis for conviction and, on the facts, did not take the defence by surprise. I would reject ground 2.
Direction in relation to record of interview (ground 3)
The judge gave the jury appropriate directions in relation to the record of interview and as to any admissions by the applicant contained therein but concluded these directions as follows:
But it is for you to determine based on all the relevant evidence whether he made the admission that you rely upon if you rely upon any and whether it was truthful. If you find that either of those matters are not proven beyond reasonable doubt and you disregard that evidence for these purposes, of course you can still consider it in terms of his credibility.
The applicant submitted that the words italicised above were clearly incorrect and were unfair and potentially prejudicial to the applicant in a case where his credibility was a central issue.
The respondent argued that the words complained of were an illogical slip that had no impact. No exception was taken. The judge had correctly charged the jury in relation to the credibility of witnesses and, in any event, the account of the applicant in his record of interview was consistent with his evidence at trial.
I would accept the respondent’s submission and reject ground 3. As, in my opinion, no material error or overall miscarriage of justice has been established, ground 4 fails.
Grounds of appeal against sentence
The applicant relied on the following two grounds:
1.The sentencing judge erred by proceeding to sentence the applicant on count 2 upon a view of the facts which impermissibly aggravated the culpability of the applicant beyond the scope of the parameters available having regard to the:
(a) evidence at trial and the findings made by the judge; and
(b) offence of dangerous driving causing serious injury.
2. In all circumstances,
(a) the sentence imposed on count 2, 3 and 4; and
(b) the orders for cumulation
were respectively manifestly excessive and such as to offend the principle of totality.
Under cover of ground 1, the applicant referred to what was said by the judge in his sentencing remarks where he accepted the evidence of Mr Jeffs, stating:
Though submissions have been put to me that I ought reject or not act on the account of Mr Jeffs, and that the jury must have taken that approach, I cannot agree with that submission. It is submitted that he exaggerated. Again, I am unable to agree or accept that submission. I found him to be a most impressive and truthful witness. His unchallenged, spontaneous, unvarnished reaction following his observation of the impact at the scene was virtually unanswerable.
You were acquitted of negligently causing serious injury. The dangerous driving causing serious injury was the alternative on the presentment. The prosecution, dealing with that aspect in the course of the opening address and closing address, submitted that the evidence would establish either one or the other. It was not suggested to be dependent on an acceptance of one witness or the other. When one examines the finding of guilt in relation to the failure to stop and render assistance, and what that means as a matter of law as to your awareness or constructive awareness, there is no doubt in my mind that the jury verdict is to be interpreted as an acceptance of the evidence of Mr Jeffs' account. I conclude that in that setting, as a driver of a commercial vehicle, you have driven rapidly, whilst in an angry state, at a pedestrian who was a short distance from your taxi and in full view.
The applicant submitted that the judge should not have wholly accepted the evidence of Mr Jeffs and should not have concluded that the jury’s verdict was to be interpreted as a wholesale acceptance of that evidence. The applicant pointed to his Honour’s own acknowledgment, when directing the jury, that there was a ‘mid position’ open on the evidence. More importantly, the applicant pointed out that defence counsel in his closing address to the jury made an important concession, as follows:
The defence concedes that if you were satisfied completely about what Mr Jeffs has said, that you would be satisfied beyond reasonable doubt about Count 1. So the defence says if you believe what Mr Jeffs says, if you believe that Mr Grewal essentially deliberately drove his car directly at Mr Chand standing on the road way, and hit him with the taxi, and he accelerated heavily from a distance of five to ten metres and struck Mr Chand and caused him to fly through the air, that you could be satisfied that Mr Grewal was guilty beyond reasonable doubt.
The applicant submitted that, in those circumstances, the acquittal on count 1 and the guilty verdict on the lesser alternative of count 2 showed that the jury had not wholly accepted Mr Jeffs’ evidence and that his Honour’s complete acceptance thereof was inconsistent with the jury verdict.
The respondent contended, in answer, that the judge was entitled to reach the view of the facts that he did. The respondent submitted that the jury’s verdicts on counts 3 and 4 involved a rejection of the defence argument (put in the alternative) that if there was a collision, it was a low impact one. Further, the respondent submitted that the verdicts of guilty on counts 3 and 4, involving serious injury of which the applicant knew or ought to have known, were inconsistent with a low-impact collision but consistent with Mr Jeffs’ evidence.
In my opinion, the applicant’s argument is correct. Given the defence concession that the jury would have to convict on count 1 if they wholly accepted Mr Jeffs’ evidence concerning the applicant ‘gunning’ his taxi and deliberately driving into Mr Chand causing him to fly into the air, the jury’s acquittal on count 1 and verdict of guilty on count 2 is consistent only with the view that the applicant’s conduct and the resulting impact was, at least to some extent, less serious than that described by Mr Jeffs. An impact less serious than that described by Mr Jeffs was capable of causing serious injury and I do not think that the convictions on grounds 3 and 4 necessitated or justified the conclusion that the jury wholly accepted Mr Jeffs’ evidence. Nor do those convictions mean that the jury was satisfied that the applicant ‘knew’ of the serious injury – that he ought to have known of the serious injury was sufficient for guilty verdicts. I consider that the judge made a material error by sentencing the applicant on the basis of complete acceptance of Mr Jeffs’ evidence and by disregarding the inference to be drawn from the jury’s acquittal of the applicant on count 1.
I therefore consider that it is necessary to re-sentence the applicant and it is unnecessary to consider ground 2. However, although not covered by the grounds of appeal, the applicant submitted that the sentences on counts 3 and 4 involved double punishment because they covered essentially the same conduct, citing R v Wei Tang.[26] In that case, the accused had been sentenced for the offences of ‘possessing a slave’ and ‘using a slave’ in circumstances where these offences involved almost completely overlapping conduct. The Court of Appeal referred to Pearce v R,[27] in which the High Court said that to the extent to which two offences of
which an offender stood convicted contained common elements, it would be wrong to punish that offender twice for the commission of the elements that were common and, further, that full concurrency was no answer to a complaint of double punishment. In my opinion, the applicant’s submission is correct and must be taken into account on the re-sentencing.
[26](2009) 23 VR 332, [22]-[35].
[27](1998) 194 CLR 610.
For the foregoing reasons, I would refuse leave to appeal against conviction and grant leave to appeal and allow the appeal in relation to sentence.
Apart from the errors mentioned above, I would otherwise endorse and adopt the reasons of the learned sentencing judge. I would sentence the applicant to two years and three months’ imprisonment on count 2, 18 months’ imprisonment on count 3 and six months’ imprisonment on count 4. I would direct that six months of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 2, resulting in a total effective sentence of two years and nine months imprisonment and I would fix a non-parole period of 18 months.
WHELAN AJA:
I agree with Mandie JA.
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