Jarratt Keith Swan v The Queen - [2013] VSCA 226

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0236

JARRATT KEITH SWAN	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, BONGIORNO and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 August 2013
DATE OF JUDGMENT	30 August 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 226
JUDGMENT APPEALED FROM	DPP v Swan (Unreported, County Court of Victoria, Judge Cannon, 4 March 2011)

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CRIMINAL LAW — Appeal — Conviction — Culpable driving causing death — Appellant pleaded guilty to alternative charge of dangerous driving causing death — Crown led evidence of appellant using heroin prior to offending and history of appellant’s heroin addiction — No evidence led to show causal link between taking heroin and offending — No tendency notice filed or application to dispense with filing of notice to lead evidence of appellant’s history of heroin addiction — Evidence irrelevant and highly prejudicial — Substantial miscarriage of justice — Appeal allowed – Retrial ordered – Patel v The Queen (2012) 86 ALJR 954 applied

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Respondent	Mr T Gyorffy S.C.	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:
BONGIORNO JA:
COGHLAN JA:

At about 8.30 am on 14 January 2009 a motor vehicle driven by Jarratt Keith Swan struck a pedestrian on a pedestrian crossing controlled by traffic lights in Stud Road, Dandenong. The pedestrian was killed. Swan did not stop after the accident but was subsequently identified and charged with culpable driving causing death, failing to stop after an accident and failing to render assistance, as well as with the summary offence of unlicensed driving. He was committed for trial in the County Court.

Upon arraignment Swan pleaded not guilty to culpable driving but guilty to dangerous driving causing death, a statutory alternative to the former offence, thereby reducing his trial to a single issue – whether at the relevant time he drove his vehicle ‘culpably’ or merely ‘dangerously’. He also pleaded guilty to failing to stop, failing to render assistance and to the summary offence. Swan was found guilty by the jury of culpable driving and of the two indictable offences to which he had pleaded guilty. On 4 March 2011 he was sentenced by the trial judge to a total effective sentence of eight years imprisonment with a non-parole period of six years. He now appeals his conviction to this Court, pursuant to leave granted by Tate JA on 5 March 2013, on one ground: that his trial had miscarried:

…as the result of the admission of a large body of highly prejudicial evidence relating to whether the applicant had used heroin prior to the collision when that evidence had no relevance to any issue in the trial.

The offence of culpable driving causing death is created by s 318(1) of the Crimes Act 1958 in the following terms:

(1) Any person who by the culpable driving of a motor vehicle causes the death of another person shall be…

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.

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Details

Case: [2013] VSCA 226
Decision Date: 30 August 2013

CaseChat Overview and Summary

The appellant, Jarratt Keith Swan, was convicted of culpable driving causing death, to which he pleaded guilty on an alternative charge of dangerous driving causing death. The respondent, the Crown, led evidence of the appellant’s heroin use prior to the offence and his history of heroin addiction. The appellant's legal representatives objected to this evidence, arguing it was irrelevant and highly prejudicial. The appellant contended that the evidence of drug use was not relevant to the issue of dangerous driving, and that there was no evidence to suggest a causal link between the heroin use and the offending. Furthermore, no tendency notice was filed, nor was there an application to dispense with the requirement of filing a tendency notice to lead evidence of the appellant’s heroin addiction.

The legal issues for the court to determine included the admissibility of the evidence of the appellant's heroin use and addiction, whether such evidence was relevant to the charge, and if its admission resulted in a substantial miscarriage of justice. The court considered whether the prejudicial effect of the evidence substantially outweighed its probative value and whether the failure to give a tendency notice or apply to dispense with such a notice resulted in a miscarriage of justice. The court applied the principles from Patel v The Queen (2012) 86 ALJR 954 in its reasoning.

The court found that the evidence of the appellant's heroin use and addiction was irrelevant to the charge of dangerous driving causing death and that its prejudicial effect substantially outweighed its probative value. The court concluded that the absence of a tendency notice or an application to dispense with such a notice constituted a substantial miscarriage of justice. Consequently, the appeal was allowed, and a retrial was ordered. The court's decision emphasised the importance of adhering to evidentiary rules to prevent the admission of irrelevant and prejudicial evidence in criminal trials.

Orders