Kennett v The King
[2022] VSCA 202
•19 September 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2022 0070
| DALE LESLIE KENNETT | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 September 2022 |
| DATE OF JUDGMENT: | 19 September 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 202 |
| JUDGMENT APPEALED FROM: | DPP v Kennett (Unreported, County Court of Victoria, 12 August 2021, Judge Dalziel) |
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CRIMINAL LAW – Appeal – Conviction – Dangerous driving causing death – Judge misdirected jury on causation – Verdict unreasonable and cannot be supported by the evidence – Appeal allowed – Judgment of acquittal entered.
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| Counsel | |||
| Applicant: | Mr D Sala | ||
| Respondent: | Mr C Boyce KC | ||
Solicitors | |||
| Applicant: | Emma Turnbull Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
BEACH JA:
Introduction
On 12 August 2021, a jury empanelled in the County Court to try the applicant found him guilty of one charge of dangerous driving causing death[1] (charge 1), but acquitted him of failing to stop after a motor vehicle accident[2] (charge 2). Following a plea, on 3 March 2022 the judge sentenced the applicant to be imprisoned for three years and six months, and fixed a non-parole period of two years and six months.
[1]Crimes Act 1958, s 319(1). The maximum penalty is 10 years’ imprisonment.
[2]Road Safety Act 1986, s 61,
The applicant now seeks leave to appeal against his conviction, relying on four grounds as follows:[3]
1 A substantial miscarriage of justice occurred as a result of self-defence not being left to the jury.
2 A substantial miscarriage of justice occurred by virtue of the admission of expert evidence by Doctor Jason Schreiber about Methamphetamine.
3 The verdict of the jury on charge one is unreasonable and/or cannot be supported by the evidence.
4 A substantial miscarriage of justice occurred as a result of the manner in which the Learned Trial Judge directed the jury in respect of the issue of causation (the third element of charge 1).
[3]Leave was granted to add ground 4 on the hearing of the application.
Very fairly, the respondent’s counsel conceded that there is substance in grounds 3 and 4. Indeed, the genesis of ground 4 undoubtedly lies in the scrupulously fair written submissions made by the respondent’s counsel in response to the applicant’s written case.
In our view, the respondent’s concessions were properly made. We consider that leave to appeal against conviction should be granted and the appeal allowed. The applicant’s conviction for dangerous driving causing death should be set aside, and a judgment of acquittal entered in its stead. Our reasons follow.
The factual background
Evidence in the applicant’s trial disclosed that, during the evening of 9 March 2020, the applicant visited a friend living at 3 Henry Court, Hamilton. At some point, he decided to sleep in his Nissan Pulsar motor vehicle, which was parked on the front lawn of the premises.
At about 2.45 am on 10 March 2020, a taxi driven by John Mirtschin (for convenience, ‘Mirtschin’) pulled up across the driveway of the property. Kenneth Kelly (‘Kelly’), who was staying in the house at the address, and Jason Young, both got out of the taxi. Mr Young leaned on the taxi for some time, before, for an unknown reason, he came to be lying on the roadside, close to where the rear of the taxi had been. His feet were near the gutter and his body was approximately at a right angle to the gutter, extending onto the road.
We pause to note that Henry Court is of bitumen construction and is aligned straight with a ‘bulb’ at the end. It has a roughly southwest to northeast orientation, and runs off Dempster Drive, which itself runs roughly southeast to northwest. Turning into Henry Court from Dempster Drive, the property at number 3 is on the left (roughly the southern side). It has a concrete driveway. The evidence suggested that, when
Mr Young lay down, his feet were in the gutter of Henry Court, adjacent to the edge of the driveway nearest the intersection with Dempster Drive, roughly 90 degrees to the gutter. Hence, if one imagines Henry Court to be orientated more east to west,
Mr Young’s feet were in the gutter of the southern side, his body lying approximately south to north.
Returning to the narrative, the evidence suggested that Kelly bore the applicant animosity. When he realised it was the applicant’s car on the lawn, he began demanding money, screaming and pounding on the car, thereby waking the applicant. Kelly kept banging on the car and trying to open the doors.
The applicant told police that Kelly had confronted him two or three times that week, and that he was scared that Kelly wanted to give him a hiding. Afraid that Kelly was going to smash his car’s windows and assault him, the applicant put the car into reverse and backed out of the driveway. He then drove off – at a pace sufficient to leave tyre marks on the road – in order to get away from Kelly. In so doing, the applicant drove over Mr Young, lying on the road. Although, so he told police, the applicant realised that he had hit something, he did not realise it was a person. At the time, the windows of the car were fogged up, he having just roused from sleep.
After driving a short distance, the applicant encountered police, who signalled him to pull over because his vehicle had an inoperative headlight. He pulled over as directed, and told police that someone had attacked his car. The applicant said he had driven away and may have run over a wheelie bin or a box. He did not realise at that time that he had run over Mr Young. Whilst the applicant was speaking to police, Mirtschin pulled up in his taxi and alerted police to the incident. The police went to Henry Court, leaving the applicant near his car, with Mirtschin.
Jason Young died from multiple injuries to his thoracic region, caused when the applicant’s car drove over him.
Police arrested the applicant. He was taken to Hamilton Hospital where a sample of his blood was taken at 4.19 am. Analysis of the sample showed the applicant to have methylamphetamine, amphetamine, THC (the active ingredient of cannabis) and Aripiprazole (an anti-psychotic drug used to treat schizophrenia), in his blood. It is unclear precisely when the applicant had ingested the relevant drugs.
The prosecution case
When opening the case to the jury, the prosecutor relied on the following matters to establish that the applicant’s driving was dangerous: the manner and degree of acceleration; failure to keep a proper lookout; having fogged windows and one headlight operating; and the ingestion of drugs (methylamphetamine in particular).
In his closing address, the prosecutor relied on four, slightly different, ‘points’:[4]
[P]oint 1, [the applicant] should not have been driving at all. He had other options other than to speed away. He had a phone next to him. The car doors were locked. Kelly hadn’t breached the car. In fact, doesn’t seem there was much damage that he did to the car at all, which wasn’t already there. The windows weren’t broken or anything like that. He could’ve sounded the horn, called for help, rung for help. He shouldn’t have been driving that vehicle at all.
Two, he knew that he shouldn’t have been driving that vehicle at night. He knew because he told the police that afterwards. It was dark that night. He only had one headlight and if, indeed, the windows were fogged up, this would mean that he was effectively driving blind. Even taking into account the street lighting and the headlights of the taxi illuminating the body, if indeed he was looking where he was going, his ability to see the deceased was going to be seriously, and the Crown submits, fatally compromised.
Three, the accused both reversed and drove away at speed. That is the evidence. He admits that. Even he admits that. The wheels were spinning, the front wheels of his motor vehicle or at least the left hand wheel and he continued to accelerate away even after experiencing what would’ve been a significant impact on Mr Young’s body. This was a large man, the deceased. [It] was different to a speed hump, which you go over in some of those quiet, private court roads. Far different to a wheelie bin, you might well think which might, it’s a matter for you, be difficult to run over a wheelie bin, that’s where you might expect something more bulldozing. But this was a significant impact between his car and Mr Young’s body, which was, it occurred while he was reversing, spinning the wheels.
Four, the high reading of methylamphetamine. Other drugs in the system, acquired brain injury of which he was aware, mental health issues of which he was aware. Methylamphetamine in that context with this man, this is the evidence, presented a significantly increased risk of a serious collision occurring. There existed, the Crown respectfully submits, and your common sense will tell you, a real prospect that his ability to see, his ability to make sensible decisions to react appropriately to the situation and to properly process what was happening around him would’ve been severely adversely impacted by his ingestion of the methylamphetamine.
So that’s the combination of circumstances, ladies and gentlemen, that the prosecution relies on. This combination of circumstances meant that the actions of the accused created all these ingredients for the disaster which followed, deadly ingredients. The fault for the collision lies squarely with him, it’s respectfully submitted, and no one else. No one else. Him.
[4]Emphasis added.
Discussion
Dangerous driving causing death is criminalised by s 319(1) of the Crimes Act 1958, which, so far as relevant, provides:
(1) A person who, by driving a motor vehicle … in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence …
Thus, for the purposes of the present case, the prosecution was required to prove that: first, the applicant was driving a motor vehicle; secondly, he was driving in a manner that was dangerous to the public in all the circumstances; and thirdly, the death of
Mr Young was caused by the applicant’s dangerous driving (in the sense that it was a substantial and operative cause of death).[5] As the language of the section makes clear, the prosecution needed to prove that the death was caused by the applicant’s dangerous driving. It was not sufficient for the prosecution to prove that death occurred while the applicant was driving in a manner that was dangerous, but that the death was not due to his dangerous driving. There needed to be a causative relationship between the dangerous driving and the death.[6]
[5]R v Rudebeck [1999] VSCA 155, [66]; Dunkley-Price v The Queen (2015) 73 MVR 450, 458–9 [38]; Arpaci v The Queen (2020) 91 MVR 414, 449 [137].
[6]In the present case, the defence conceded that the applicant’s driving caused the deceased’s death, but did not concede that the applicant’s driving was dangerous.
As we have indicated, the evidence established that the applicant’s vehicle reversed out of the driveway – so that the rear of the vehicle was toward the ‘bulb’ of Henry Court, and its front was toward the intersection of Dempster Drive – and straightened up. At that point, Mr Young was lying on the road in front of the vehicle. The applicant then drove in the direction of Dempster Drive, running over the prostrate Mr Young in the process.
In his record of interview with police, the applicant said that he did not see Mr Young lying on the road prior to commencing to move forward (or at all). He said that he thought that he had run over a wheelie-bin or a box.
Apart from the applicant’s statement to police that he did not see Mr Young on the road after reversing out of the driveway and before driving forward, other evidence was adduced at trial directed to the question whether a driver in the applicant’s position – keeping a proper lookout – could have seen Mr Young’s body on the road at the moment he was about to drive forward after having reversed from the driveway. At issue was whether Mr Young’s body was visible as he lay on the road having regard to the distance of the body from the front of the applicant’s car given the length of the vehicle’s bonnet.
Under cross-examination, Mirtschin, the taxi driver, gave evidence that the applicant would not have been able to see Mr Young’s body on the road. He said that the applicant reversed his vehicle out of the driveway of 3 Henry Court, and swung ‘on an angle back towards the bulb of the court’. Following that manoeuvre, all of the applicant’s vehicle was on the road save for the front driver’s side wheel, which was on a circular piece of kerb (the circular piece of kerb being located on the western side of the driveway, nearer the ‘bulb’). At that point, Mirtschin agreed, Mr Young was ‘lying just out from the end of the driveway’. Mirtschin then gave the following evidence:[7]
All right. So, when the Nissan has straightened up I suggest there’s only two or 3 metres at most from the body, correct?---That is correct.
You wouldn’t have been able to say whether or not anybody driving the Nissan could have seen the body on the roadway at that moment or whether it was under the line of sight under the bonnet?---I reckon it was under the line of sight.
Okay?---The body was too close to the car.
You can see the body because you’re at an angle?---Yes.
With your head lights shining directly on it?---Yes.
But your perception of the time was that the body was too close in the car for someone sitting in the driver’s seat to have been able to see it, is that right?---Yep.
[7]Emphasis added to this and following passages.
Furthermore, Dr Jenelle Hardiman, an accident reconstructionist who has a PhD in mechanical engineering and holds the rank of Detective Sergeant in the Major Collision Investigation Unit of Victoria Police, gave evidence that she had been asked to determine whether ‘the driver of the Nissan Pulsar’ – the applicant – could have seen the ‘pedestrian’ lying on the road at the point where the tyre marks left by the vehicle begin. Her evidence included the following:
So first thing I tried to do was determine whether the driver could from his position in the seat, when the front axle was on one end of the tire mark, could he see a pedestrian on the road at the end of the tire mark. And my findings were that there was just essentially too many variables to be able to determine that, because it’s dependent on how far off the ground the pedestrian was – so obviously the higher, the greater visibility.
It was dependent upon how the pedestrian was actually lying. So if the first part of him that was impacted was at the end of the tire mark, were his feet a whole body length further away, so I couldn’t determine that.
It’s also dependent on how the driver is seated in the vehicle. So he has the seat very reclined back, uh, the seat base is very low, then what he can see and how far out the front of the vehicle he can see will be different to if the seat back is upright, is further forward. So everybody sits differently in a car. As soon as we get in, we position the seat, and I can’t determine with any certainty how that driver was seated in the vehicle on that day.
And it was such in this case that by varying different aspects a little bit varied what the answer to that question was. So, in some positions, he could have been able to see the pedestrian. In other positions, he couldn’t. It all depended on where we put what, where, and none of those things could I be certain about, and therefore I was unable to conclude whether the driver could or couldn’t see 4.7 metres in front of the vehicle.
In this Court, the respondent’s counsel acknowledged that, in light of the evidence of Mirtschin and Dr Hardiman, there was a real issue whether the prosecution had established beyond reasonable doubt that a ‘non-dangerous’ driver could have seen
Mr Young prior to the collision. Thus, the respondent’s counsel accepted that it was crucial that the jury be directed clearly on the need for a causative relationship to be proved between the particularised dangerousness and death. As the respondent conceded, however, it appears that the jury at no stage were instructed in clear terms of the need to find a causative relationship between the applicant’s dangerous driving and Mr Young’s death.
During her charge to the jury, the judge provided the jury with a written ‘handout’. It directed the jury specifically that the only element of the charge of dangerous driving in issue was whether the applicant ‘was driving in a manner that was dangerous to the public having regard to all the circumstances of the case’. The handout was in the following terms:
Charge 1 – Dangerous Driving Causing Death
To prove this charge the prosecution must prove the following three elements, beyond reasonable doubt:
1. at the time of the offence, [the applicant] was driving a motor vehicle;
2. [the applicant] was driving in a manner that was dangerous to the public having regard to all the circumstances of the case; and
3. the dangerous driving caused the victim’s death.
In respect to Charge 1 it is element two which is in issue.
In order to be dangerous, for the purposes of this charge, the driving must have involved a serious breach of the proper management or control of a vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured.
In determining whether this was the case, remember that people do not always drive as they should. Even the best drivers occasionally lose attention for a moment, or make minor mistakes.
For this element to be satisfied, the accused must have driven in a manner which significantly increased the risk of serious injury or death, over and above the ordinary risks of the road. This could be because [the applicant’s] driving increased the likelihood of a collision, or because it made it more likely that any injuries suffered in a collision would be serious.
In respect to Charge 1, the prosecution do not have to prove that:
– [the applicant] was aware that Mr Young was lying on the road at the time he drove over him;
– [the applicant] knew or realised that his driving was dangerous.
Charge 1 requires you to analyse the driving of [the applicant] and the surrounding circumstances at the time of this event, and to form your own conclusion about the nature of his driving and whether it was dangerous in the way set out above.
The judge’s oral directions in her charge included the following (among other things):[8]
All right, I have got a handout for [you]. I wonder if that could be distributed? So I am starting with Charge 1, which is the charge of dangerous driving causing death. I will just wait for that to get down the row.
To prove Charge 1, the prosecution have to prove the following three elements beyond reasonable doubt. The first element is at the time of the offence or the events, [the applicant] was driving a motor vehicle. The second element is that [the applicant] was driving in a manner that was dangerous to the public, having regard to all the circumstances of the case. And the third element is that the dangerous driving caused Mr Young’s death.
Now as I think will probably be pretty clear to you, element 1 and element 3 are not in issue in the trial. You still have to be positively satisfied of them, but there is no issue taken with those elements by the defence. The element which is in issue in respect to Charge 1 is element 2, that is whether [the applicant] was driving in a manner that was dangerous to the public having regard to all the circumstances of the case.
[8]Emphasis added to this and passages following.
Although the judge was correct to say that the third element that the prosecution needed to prove was ‘that the dangerous driving caused Mr Young’s death’, it was incorrect to say that the third element was ‘not in issue in the trial’. Remarkably, these directions did not provoke any exception from counsel. Moreover, the problem created by the trial judge’s misdirection was subsequently exacerbated by her answer to two questions asked by the jury during deliberations.
By their first question, the jury asked for the ‘exact wording’ of s 319(1) of the Crimes Act 1958. And, significantly, by their second question, the jury asked for ‘clarification’ of the element that ‘the dangerous driving caused the death of Jason Young’: did ‘caused’ mean that it had to be ‘the only contributing factor causing death … the absence of which would have avoided the accident’.
In the discussion between judge and counsel that followed, the judge observed:
I think where they might be getting in a pickle is told them Element 3 isn’t in issue but I’ve set out Element 3 as the dangerous driving caused the victim’s death and they may be thinking well hang on a second, how does that follow? Has the defence conceded that it was dangerous driving then? So I’m wondering whether I might have led them into a trap but I think it was made pretty clear to them, wasn’t it, that it’s not disputed that the cause of the death was being run over by the vehicle driven by [the applicant].
Unhappily, the judge got little assistance from the applicant’s counsel, who submitted:
I agree that causation – you should stress to them that causation is not in issue. It’s whether [the applicant’s] driving was dangerous that’s the issue. That’s for them to decide in all the circumstances of the case. They shouldn’t be distracted by the phrase contributing factors …
In answer to the jury questions, the trial judge read s 319 to them (absent any reference to the prescribed penalty) and gave further directions, which included the following:
Now this question relates really to Element 3 of the charge. You were told throughout the trial and I reminded you in my remarks to you that [the applicant] doesn’t dispute that his driving caused Mr Young’s death. So he’s not disputing that because he drove over Mr Young, that’s why Mr Young died.
Now, the law says that the cause of death doesn’t need to be the sole cause of a person’s death. The question at law is whether the driving was a substantial or significant cause of Mr Young’s death. So substantial or significant. You don’t need to consider the issue of whether the driving caused Mr Young’s death because the parties agree and particularly, [the applicant] agrees that his driving was a significant or substantial cause of Mr Young’s death.
In respect of Charge 1, as I’m sure you understand, the central issue for you to decide is Element 2. That is whether the driving was dangerous. If you’re not satisfied that the driving was dangerous, then you would find [the applicant] not guilty. If you are not satisfied of Element 2, that is that the driving was dangerous, then it follows that you would not have factually found that there was dangerous driving which caused Mr Young’s death. I suspect, part of the confusion or issue might be is that in my handout to you, I said that Element 3 was the dangerous driving caused the victim’s death. I told you that that element wasn’t in issue. Well what’s not in issue is that the driving caused the death. You still have to be satisfied that it was dangerous driving and that is all considered under Element 2.
Twenty minutes after the further directions set out immediately above the jury found the applicant guilty of dangerous driving causing death.
In this case there was a real issue on the evidence whether the prosecution could establish that it was the dangerousness of the applicant’s driving that caused
Mr Young’s death. Notwithstanding that this is so, that issue appears effectively to have been withdrawn from the jury’s consideration. Thus, it is clear the jury ultimately were instructed that, so long as element 2 was satisfied (that is, that the applicant’s driving was dangerous), then that would be enough to conclude satisfaction of element 3, since, insofar as element 3 referred to dangerous driving, ‘that is all considered under element 2’. At the very least, the true position was left quite unclear. At no stage were the jury directed in clear terms of the need to find the existence of a relationship between the applicant’s dangerous driving and the putative victim’s death.
The respondent’s counsel fairly conceded in this Court that the judge’s misdirection constituted a material error sufficient to warrant the quashing of applicant’s conviction. We consider that concession to have been properly made. It should be accepted.
In our view, the judge’s directions resulted in a substantial miscarriage of justice. The jury’s questions demonstrate that they were troubled by the very matter upon which they were misdirected. In those circumstances it is impossible to say that, absent the misdirection, conviction was inevitable. Ground 4 must therefore be upheld.
We are also of the view that ground 3 – which was also the subject of a responsible concession by the respondent’s counsel – must be upheld. We venture to repeat the written submissions of the respondent’s counsel, in which he submitted that, having regard to the evidence
and after careful consideration, the respondent would concede that while it could establish beyond reasonable doubt that the applicant was driving dangerously and that the driving was a significant and substantial cause of the deceased’s death, it could not establish beyond reasonable doubt the necessary relationship of cause between the particularised dangerousness and the death. From the point at which the applicant’s car had ceased reversing and was about to move forward the evidence given by the witnesses Mirtschin and Hardiman simply did not allow for the existence of this relationship to be proved beyond reasonable doubt. Moreover, there was no viva voce or expert evidence that bore directly upon whether the deceased could have been seen by an attentive driver who was reversing out of the driveway in the direction followed by the applicant. The jury here were left to draw what inferences they could draw from the photos and other depictions of the scene. No argument it appears was made concerning whether it was possible to see the deceased while the car was reversing. Quite simply, it seems on the strength of the relevant evidence rather speculative to suggest that the deceased could have been seen by an attentive driver carrying out the reversing manoeuvre adopted by the applicant. Again, it is difficult to see how the necessary relationship [between the applicant’s dangerous driving and Mr Young’s death] could be made good beyond reasonable doubt.
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It can be inferred from the jury’s verdict on Charge 2 that the prosecution failed to prove beyond reasonable doubt that the applicant knew or ought reasonably to have known that the accident had occurred and had resulted in a person being killed or suffering serious injury. Assuming that if a person knew that they had run over another person in a car the driver would know, or ought to know, that they had caused another person serious injury, the verdict of acquittal on this charge may translate as dissatisfaction on the jury’s part that the applicant ought reasonably have known that he had run over another person. Once that is understood, such dissatisfaction may roughly translate as the Crown having failed to establish beyond reasonable doubt that the applicant ought reasonably to have known that the deceased was lying on the road in the position that he was prior to being run over.
We agree with these submissions.
Essentially for the reasons set out in the respondent’s written submissions, we consider that a properly instructed jury ought, on all of the evidence, to have entertained a reasonable doubt about the applicant’s guilt.[9]
[9]M v The Queen (1994) 181 CLR 487; Pell v the Queen (2020) 268 CLR 123.
Conclusion
Given our conclusions on ground 3, we will grant leave to appeal against conviction; allow the appeal; set aside the applicant’s conviction for dangerous driving causing death; and order a judgment of acquittal.[10]
[10]Criminal Procedure Act 2009, s 277(1)(b).
In light of our conclusions on ground 3, it is unnecessary to consider grounds 1 and 2.
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That situation may be contrasted with that of a person facing a charge of culpable driving under
ss 318(2)(c) or (d) of the Crimes Act 1958; that is, driving a motor vehicle whilst under the influence of alcohol or a drug ‘to such an extent as to be incapable of having proper control of the motor vehicle’. In such a case, the prosecution need only prove that the accused person’s driving caused the death, and that at the relevant time he or she was under the influence of alcohol or a drug to the requisite extent. It is not necessary for the prosecution to prove a causal connection between the fact that the accused was under the influence of alcohol or drug (so as to be incapable of having proper control of his or her motor vehicle) and the death. See R v Feketa (1982) 10 A Crim R 287, 289–90; R v Ciantar (2006) 16 VR 26, 34–38 [24]–[31] (Warren CJ, Chernov, Nettle, Neave and Redlich JJA).
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