Jarratt Keith Swan v The Queen
[2013] VSCA 226
•30 August 2013
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 guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both.
In an indictment alleging culpable driving the form of culpability alleged must be pleaded specifically. In this case the culpability alleged was that Swan drove his vehicle negligently:
(b)…that is to say, (he failed) unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; …
Relevantly for present purposes, the indictment did not allege that Swan drove his motor vehicle:
(d)whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.
— one of the other forms of culpability specified in the legislative provision. However s 318(2A) provides that negligence may be established by proving that:
(a)a person drove a motor vehicle when fatigued to such an extent that he or she knew, or ought to have known, that there was an appreciable risk of him or her falling asleep while driving or of losing control of the vehicle; and
(b) by so driving the motor vehicle the person failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case.
The Crown case at trial was that the appellant had failed to obey a red light applicable to him at the pedestrian crossing, he was driving too fast and/or not paying proper attention to his driving because he was sleep deprived and/or fatigued. This fatigue, argued the Crown, was caused or contributed to by his having ingested the drug heroin in the period leading up to the accident. He was not alleged to have been under the influence of heroin at the relevant time.
There were a number of eye witnesses to the accident called by the Crown. Although there were the usual expected discrepancies in their various accounts, they were generally agreed that the traffic lights controlling vehicular traffic at the pedestrian crossing were red at the time the appellant’s vehicle struck the deceased and had been so for some time before. There was evidence that the vehicle was travelling fast and had not slowed at all before the pedestrian crossing. Expert evidence suggested that at the point of impact the appellant’s vehicle was travelling at about 68 kph. The relevant speed limit was 60 kph. There was no dispute as to most of this evidence. Nor was there any issue that the appellant failed to stop after the accident and failed to render assistance as required by law.
There was considerable evidence as to the appellant’s activities in the period before the accident which, themselves, would have been a basis for inferring that he was sleep deprived and/or fatigued at the time of the accident. There was also evidence, which he disputed, that he had self injected heroin in the early hours of the day of the accident.
The appellant gave evidence that he was neither fatigued nor sleep deprived at the relevant time and he denied using heroin on the morning of the accident. His brother supported the appellant in this denial, saying that he had not used heroin for some years. The brother also accepted responsibility for a used syringe found in the appellant’s car by police after he was apprehended. He said that he had used it, not the appellant. The appellant’s brother also said that at the relevant time the appellant was on a heroin replacement program involving a drug called Suboxone of which a quantity was kept in the house he, the brother, shared with the appellant and the appellant’s girlfriend.
It is clear from the way the evidence was led at trial that the Crown was seeking to prove the ingestion of heroin by the appellant at the relevant time in two ways: by direct evidence of a witness, AS, who said that the appellant had bought heroin and that they had both injected it in the early hours of the morning of 14 January, and by evidence from her and a number of others of his having been a heroin addict for many years. In the latter category was a large amount of detailed evidence about his having been on a Suboxone program, a treatment regime for heroin addicts. As described by the pharmacist who gave evidence, this program, which the appellant had been on since December 2007, required him to attend at a specific pharmacy regularly where he would be administered the appropriate sublingual dose of Suboxone under supervision. From her records she was able to depose to his not having been supplied with any Suboxone for some seven days prior to the accident. This evidence was intended, it would seem, to support an argument that because the appellant had not attended the pharmacy for a week before the accident his addiction to heroin made it more likely that he would have taken heroin on the morning of the accident as AS said she had seen him do.
The defence case on this issue was that the appellant would not have taken heroin on the morning of the accident because he was regularly taking Suboxone which has the effect of making heroin ineffective. He did not need to attend the pharmacy regularly to have access to Suboxone however because, by some means, he had illegally stockpiled enough at home to enable him to self‑medicate without recourse to a regular and legal source of supply. Thus, even if he had taken heroin (which he denied) it would have had no effect because he had taken Suboxone.
Following the accident the appellant was examined on two occasions, in custody, by medical practitioners to determine his fitness to be interviewed by police. Each of them gave evidence (either directly or by necessary implication) of the appellant’s long term drug abuse. The first doctor to examine the appellant did so at about 2.00 pm on the day of the accident. He found no evidence of drug withdrawal, although the appellant was fatigued and, on that account, unable to be interviewed.
The second doctor, who examined the appellant at about the same time the following day, found him to be suffering withdrawal symptoms from lack of Suboxone. He suggested to the police that he be treated with that drug. A pharmacist administered that drug to him about 6.00 pm that night. That pharmacist (not his regular pharmacist) gave evidence that the appellant told him he had used heroin recently.
The question raised by the appellant’s sole ground of appeal is whether the evidence of his having used heroin shortly before the accident was relevant and admissible in proof of the Crown case. Of necessity this question requires consideration of the direct evidence of heroin use on 14 January prior to the accident and the evidence of addiction to heroin from which an inference of use at the relevant time might be rendered more likely. For any of this evidence to be relevant to the only issue in the trial the Crown was also required to prove that the ingestion of heroin prior to the accident caused or contributed to the appellant’s fatigue at the relevant time; that is to say, it was necessary for the Crown to prove not only the fact of ingestion but also its likely effect on the appellant in the particular circumstances.
AS was a street prostitute and heroin user who went with the appellant to St Kilda on the evening of 13 January to engage in prostitution under his protection. She said she paid the appellant $100 from her earnings of $600 on that night. At about 4.30 the following morning, after she finished working, she and the appellant obtained 1 gram of heroin from his dealer for which she paid $300. She shared the heroin equally with him. She said that they injected it using separate syringes. AS gave no evidence as to the purity of the heroin which was used. She estimated that they injected the heroin at about 5.30 am to 6.00 am. In the course of AS’s evidence she referred to the appellant’s drug use, that he was a regular user and that he had a dealer. Her evidence clearly implicated the appellant as a regular user of heroin.
Dr Maurice O’Dell, a toxicologist, gave extensive expert evidence on a number of matters. He said that heroin is a narcotic, that taking it would aggravate the effect of fatigue or lack of sleep, but that, in the absence of evidence as to the amount ingested and its purity, it would be impossible to say whether, in the instant case, such ingestion, if it occurred, had any consequence in respect of the appellant’s driving at the relevant time. He also referred to individual tolerance for heroin as a variable which added to the uncertainty of its effect in any given case and to the fact that, if (as the appellant asserted) he was taking Suboxone at the relevant time, any heroin injected would have had no effect. Thus, far from assisting the Crown case, Dr O’Dell’s evidence rendered the evidence of AS as to the appellant’s ingestion of heroin, and the large body of evidence from various sources going to his longstanding drug addiction, incapable of rationally affecting the probability of the appellant’s driving being detrimentally affected at the time of the accident by the ingestion of heroin. Accordingly, there was no evidence before the jury which would entitle it to consider heroin use as being in any way connected with the culpability of the appellant for the death of the deceased.
It follows from the above that not only was AS’s evidence of the appellant’s taking heroin before the accident irrelevant, but the evidence as to his longstanding drug addition was likewise irrelevant. It was, accordingly, inadmissible. But irrelevance was not the only problem associated with the Crown evidence as to the appellant’s drug addiction. Evidence that a person engages in a particular habit (scil. acts in a particular way), tendered to prove that he pursued that habit (scil. acted in a particular way) on a particular occasion, is tendency evidence, the admissibility of which is governed by s 97(1) of the Evidence Act 2008. As such it is inadmissible unless the conditions precedent to its admissibility set out in ss 97(1)(a) and (b) and 101(2) are satisfied. It was required to be the subject of a notice to the appellant that the Crown would seek to rely upon it, it must have had significant probative value and that probative value must have substantially outweighed any prejudicial effect it may have had on the appellant.
The evidence as to the appellant’s drug habit was never the subject of a tendency evidence notice, nor was it the subject of any application by the Crown under s 100(1) of the Act for dispensation from that requirement. It was, on that score alone, inadmissible. This would have been so even if Dr O’Dell had proffered an opinion, concerning the effect upon the appellant’s driving of heroin use shortly before the accident, which supported the Crown case. In the circumstances the evidence of the appellant’s drug habit should not have been admitted to prove the likelihood of the appellant having taken heroin in the period immediately before the accident.
Although some of the evidence going to the use of heroin by the appellant was the subject of objection by defence counsel, and the possibility of its being tendency evidence was mentioned, no attempt appears to have been made to subject the evidence of Dr O’Dell, which was the key to the admissibility of all of the evidence concerning heroin use, to scrutiny on the voir dire. Indeed defence counsel appeared to be content to wait until Dr O’Dell had given his evidence or at least to wait until ‘there is a proper basis for his opinion’ to object to the admission of that evidence. In the event, Dr O’Dell gave his evidence without objection, including evidence that the appellant was on a Suboxone program, how that program was administered, the relationship between Suboxone and heroin and, of course, that it would be impossible to determine the effect of any heroin he had ingested unless a number of variables were eliminated.
The effect of Dr O’Dell’s evidence was that, after it was given, there was a significant body of irrelevant and highly prejudicial evidence before the jury. All of that evidence was subsequently summarised at length by the trial judge in her charge to the jury. No application was made by defence counsel to have the jury discharged or to deal with this problem by appropriate directions or otherwise. The Crown submitted in this Court that the fact that no such application was made suggested that defence counsel had seized on what he perceived to be a forensic advantage arising from his cross-examination of Dr O’Dell. It argued that the Crown case was overwhelming so that no substantial miscarriage of justice had been demonstrated, necessitating a dismissal of this appeal.
Once Dr O’Dell’s evidence demonstrated that the appellant’s ingestion of heroin on the morning of the accident and his prior drug history could not be used legitimately by the jury to determine whether his admittedly dangerous driving was in fact ‘culpable’ within the meaning of s 318(1) of the Crimes Act 1958, his trial became unfair. That this unfairness may have been caused or contributed to by the failure of his counsel to handle the evidentiary issues surrounding his drug use appropriately – including his adoption of a ‘wait and see’ attitude to Dr O’Dell’s evidence and the material upon which it was based – is not to the point. The appellant was entitled to have the narrow issue of whether his driving was culpable or merely dangerous determined by the jury without the prejudice inherent in the large quantity of inadmissible evidence which was admitted.
The problem created by the inadmissible evidence was not entirely attributable to the appellant’s counsel’s failure to object. The Crown led the evidence of the appellant’s drug taking and of his addiction when it ought to have been aware that it would need expert evidence as to the effect of the heroin upon his driving at the relevant time to make that evidence relevant. It ought to have known Dr O’Dell’s opinion before the appellant’s heroin addiction and his use of heroin shortly before the accident became the subject of evidence. If defence counsel’s failure to object was one factor contributing to an unfair trial, the Crown’s leading of this evidence, when its expert witness held the opinion which he subsequently expressed, also contributed to the unfairness to which the appellant was subjected.
The admission of the large body of inadmissible evidence in this trial constituted an error or an irregularity in the trial such that this Court could not be satisfied that that error did not make a difference to the outcome of the trial. It certainly could not find that a conviction would have been inevitable had that evidence not been before the jury.[1] The extensive nature of the impugned evidence, and the fact that it branded the appellant as a disreputable person and as a pimp or a bludger, lead inexorably to that conclusion. No directions from the trial judge could have cured the defect in the trial caused by its admission.
[1]Baini v R (2012) 146 CLR 469.
The conduct of the Crown in leading the heroin evidence in this case is, in some respects, analogous to the situation which arose in Patel v R[2] where a large body of prejudicial material which was before the jury became irrelevant when the prosecution case was revised in the course of the trial. In allowing Patel’s appeal the majority in the High Court referred to Wilde v R,[3] A.K. v Western Australia[4] and Cesan v R[5] in the context of an examination of the nature and extent of the departure from proper process which has been held to enliven appellate intervention. In Patel the Court held that in that case:
The miscarriage of justice was grounded in the nature, significance and extent of the evidence to which the jury had been exposed.[6]
[2](2012) 86 ALJR 954.
[3](1988) 164 CLR 365 at 373.
[4](2008) 232 CLR 438 at [54].
[5](2008) 235 CLR 358 at [126].
[6](2012) 86 ALJR 954, 975 [128].
In that case, as in this, defence counsel had not objected to the evidence in question. In that case, as in this, it could not be inferred that the failure to object was a rational, tactical decision, such as would otherwise have removed the unfairness.[7] For these reasons, there has been a substantial miscarriage of justice so as to satisfy s 276(2)(b) of the Criminal Procedure Act 2008 and entitle the appellant to a new trial.
[7]Ibid, [114], [117].
Disposition
The appellant’s appeal against his conviction for culpable driving should be allowed, the sentence thereon set aside and a new trial ordered. As the appellant pleaded guilty to the two other charges on the indictment the convictions on those charges should stand. The sentences on those convictions pose a different problem. Were it not for the fact that the appellant has already pleaded guilty to dangerous driving causing death, this Court would have reconsidered these sentences consequent upon the appellant’s success in respect of his trial on the culpable driving charge. As things stand it has no material before it upon which to do so and, in any event, a reconsideration now would be temporary and somewhat artificial. We reserve that question for further consideration, as may be necessary.
Whatever course the Director of Public Prosecutions takes as to a new trial, a further sentencing exercise will be necessary, at least in respect of the dangerous driving charge. Whether the DPP proceeds to a new trial on the culpable driving charge or accepts a plea of guilty to a charge of dangerous driving causing death will, of course, be a matter for him to determine. To achieve expeditious finality to this matter it is imperative that the DPP make that determination as soon as possible. In the meantime, the appellant should be remanded in custody pending any retrial.
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