Langan v White

[2006] TASSC 83

[2006] TASSC 83

CITATION:                 Langan v White [2006] TASSC 83

PARTIES:  LANGAN, Yvonne Millicent
  v
  WHITE, Graham Ross (Sergeant)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LDR LCA 22/2006
DELIVERED ON:  19 October 2006
DELIVERED AT:  Hobart
HEARING DATE:  13 October 2006
JUDGMENT OF:  Underwood CJ
CATCHWORDS:

Criminal Law – Evidence – Matters relating to proof – Standard of proof – Circumstantial evidence – Reasonable hypothesis consistent with innocence – Generally – Intermediate fact essential to chain of reasoning not proved beyond reasonable doubt.

Shepherd v R (1990) 170 CLR 573, applied.
Levy v Gray A11/1996, referred to.
Aust Dig Criminal Law [448]

Criminal Law – Appeal and new trial and inquiry after conviction – Particular grounds – Unreasonable or insupportable verdict – Where evidence circumstantial – Circumstantial evidence – Reasonable hypothesis consistent with innocence not considered.

Kelly v O'Sullivan (1995) 4 Tas R 446, applied.
Aust Dig Criminal Law [966]

REPRESENTATION:

Counsel:
             Applicant:  D J Porter QC
             Respondent:  D J Coates SC
Solicitors:
             Applicant:  Douglas & Collins
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2006] TASSC 83
Number of paragraphs:  21

Serial No 83/2006
File No LDR LCA 22/2006

YVONNE MILLICENT LANGAN v SERGEANT GRAHAM ROSS WHITE

REASONS FOR JUDGMENT  UNDERWOOD CJ

19 October 2006

1. The applicant seeks a review of an order of conviction for causing death by negligent driving contrary to the Traffic Act 1925, s32(2A).

1. At about 2.25pm on Wednesday 10 November 2004, the applicant was driving her Toyota Landcruiser station wagon along the East Tamar Highway towards Launceston.  At the same time, Mr Tony McMullen was driving a sedan in the opposite direction.  It was a fine day.  The road was dry and the visibility was good.  At Dilston there was a collision between the two vehicles.  Mr McMullen died from injuries he sustained in that collision.  The evidence of the events leading up to that collision went unchallenged.

1. At the point of collision, the East Tamar Highway was, and probably still is, divided into four lanes.  There was a speed limit of 80 kilometres per hour.  Expert opinion evidence was adduced that the applicant was travelling at about 85 kilometres per hour when her vehicle moved so far onto the incorrect side that it entered the far left lane for vehicles travelling in the same direction as Mr McMullen.  Marks on the road indicate that just before impact, the applicant pulled the wheel of her vehicle hard left and braked.  Marks indicate that Mr McMullen also braked, but by then the  collision was unavoidable.  The impact was described as an "offset head-on", that is, right front to right front.

1. The applicant was taken to hospital.  She has made a full physical recovery from her injuries but has no recollection of the accident at all.  She was interviewed by police officers and told them that she was alone in her vehicle.  She said that prior to the accident she was in good health and not taking any medication.  She told police that she had a good sleep the night before the accident, was not tired and was not in a hurry to get to Launceston.  Her first post-accident memory was of being in her car and speaking to someone who had approached her. 

1. Post-accident inspection of the applicant's vehicle disclosed that it had no defects and that the heater was on cold and the fan turned off.  There was no alcohol in the sample of blood taken from the applicant on her admission to hospital after the accident. 

1. In her evidence, the applicant told the learned magistrate that she had had "just about every test you can have" to see if there was any medical explanation for her being on the wrong side of the road, but no possible explanation was apparent.  She told the learned magistrate that she had never previously felt drowsy, fallen asleep or had a blackout when driving the car.  She had no recollection of the events immediately preceding the accident.

1. Mr Michieletto was the only independent witness to the accident.  He was travelling behind Mr McMullen and saw the accident.  He said that his attention was directed to the applicant's vehicle when it "started to move rather erratically in the traffic".  He was unable to recall if the road at the place of the accident was divided into three or four lanes, nor whether the applicant was driving in the inside or outside lane for Launceston-bound traffic.  With respect to his description of the applicant's vehicle driving erratically, Mr Michielleto said:

"It started to move like when a vehicle, say, goes to overtake and then shoot back, it was that sort of motion."

"It then just veered in a sharp angle across the highway."

"Basically towards the houses on the other side of the highway."

"It just went, it went on an angle across the highway.  Right across."

"It appeared at the last instant that it may have tried to avoid coming in contact with [Mr McMullen's] vehicle, however, I don't know whether that may have just been from the impact made it look as though it was veering back"

"It just, the movement of the vehicle, sort of tended to swerve back towards the correct side of the road."

1. The following is extracted from the cross-examination of Mr Michieletto:

"And there wasn't any delay then was there, [after it "shot back"] before it then just veered suddenly across the road? … Seemed to be probably a delay of less than a second I'd say and then it just veered violently to the right. 

Violently to the right? … Yep very quick.

And I think you said in your statement that this violent movement to the right was as if it were out of control.  Do you remember saying that in your police statement? … Yeah probably.

All right.  Can you remember what it was that made you think that it was out of control, was it just the violence of the movement across the lane? … Um, yeah I guess and the fact that it was heading in a direction that it shouldn't been heading in. 

From where you were able, from where you were on the roadway it appeared to you as if the angle across the lanes was very sharp? … Yeah."

1. Counsel for the applicant in the court of petty sessions submitted that there was no evidence that the applicant's driving was negligent as particularised in the complaint, viz:

"(a)      failed to keep a proper lookout.

(b)failed to exercise reasonable care and skill in the handling of the vehicle; failing to take reasonable precautions to avoid a collision [sic].

(c)       fail to keep as near as practicable to the left side of the road."

1. The learned magistrate reserved his decision and handed it down six weeks later.  He made no express finding with respect to any of the particulars of negligence, but found the charge proved.  Mr Michieletto's evidence was central to his conclusion.  In his reasons for judgment the learned magistrate approached his task upon the basis that the circumstantial evidence admitted only two rational hypotheses for the applicant being completely on the wrong side of the road.  The first was that the applicant had been "distracted" by some unidentified cause, but her driving was a conscious act or acts.  The second was that the applicant's driving was not a conscious act or acts, as she may have fallen asleep.  The learned magistrate surveyed Mr Michieletto's evidence and said, with respect to it:

"… there are only two rational inferences or rather hypothesis that arise from it.  The first that the driver was distracted by something that she was doing or by something causing the vehicle to veer to the right in the line of travel on two occasions observed, the defendant being able to correct the first time and this inference supports the conclusion that the acts were conscious, done with the realisation that the defendant's vehicle was behaving inappropriately and on that moment correcting immediately.  And then almost immediately after that correction the vehicle again veered out of the line of travel and across the two westbound lanes into the path of the defendant's [sic] vehicle."

1. The learned magistrate then referred to the expert opinion evidence concerning the very short time it would have taken for the applicant to have travelled from her correct side to the point where the marks on the road and Mr Michieletto's evidence indicate she made a conscious attempt to avoid the impact.  He said that both "acts of correction" occurred within a very short space of time.  The learned magistrate proceeded from that finding to make this critical finding:

"... but the acts of correction cannot be explained on the evidence by anything other than conscious acts of driving, which one could reasonably conclude are inconsistent with falling asleep.  The falling asleep hypothesis, although a possibility, is not one on the evidence that has any rational force."

1. Counsel for the applicant on the motion to review, Mr Porter QC, submitted that the learned magistrate's reasoning process was flawed and consequently the conviction was unsafe and unsatisfactory.  Mr Porter made a number of submissions in support of this proposition and the grounds of appeal, but it is unnecessary to canvass all of them due to the most helpful and proper concessions that were made by Mr Coates SC, who appeared for the respondent, namely:

·the mere fact that the applicant's vehicle crossed onto the wrong side of the road is not, in the circumstances of this case, evidence of negligent driving;

·the following principles, set out in Mr Porter's written submissions, are the principles that the learned magistrate was bound to apply:

"(a)the doctrine of res ipsa loquitur has no application, and the mere happening of an accident does not give rise to a presumption of negligent driving; R v Hinz [1972] Qd R 272, Waldie v Cook (1988) 91 FLR 413, and Brown v Baker [2001] TASSC 113;

(b)the facts and circumstances of the case may be such that an inference of negligence is the only one reasonably open unless an explanation is offered; ie where a defendant offers no explanation that may be sufficient to convert a prima facie case into one proved beyond reasonable doubt; Kiernan v Pierce [1933] SASR 137, Police v Chappell [1974] 1 NZLR 225, Brown v Baker, Sanders v Hill [1964] SASR 327;

(c)where a defendant offers an 'explanation' in the sense of establishing that there is no explanation within his present knowledge, the prosecution case does not go unanswered in that sense; Sanders v Hill at 329;

(d)where there is no explanation offered, the court must consider all reasonable possibilities; Sanders v Hill and Police v Chappell."

1. Mr Coates submitted, correctly in my view, that in a case such as this, in which all the evidence against a defendant is circumstantial, the prosecution does not have to prove beyond reasonable doubt each of the circumstantial facts relied upon, but in some cases there may be a fact or facts that is, or are, so critical to the chain of reasoning that it or they must be proved to that standard.  Authority for this proposition is to be found in the judgment of Dawson J (with whose reasons Mason CJ, Toohey and Gaudron JJ agreed) in Shepherd v R (1990) 170 CLR 573 at 579. Mr Coates accepted that in this case a fact that was critical to the chain of reasoning, and therefore had to be proved beyond reasonable doubt, was that the first movement of the applicant's vehicle as witnessed by Mr Michieletto was the result of a conscious act of driving. This was so even if the last minute attempt to avoid the collision, made when the applicant's vehicle was on the wrong side of the road, was the product of a conscious act. That conscious act was not evidence of negligence because it does not explain why the vehicle was on its incorrect side of the road in the first place.

1. The issue on this motion to review is whether the finding that the first movement of the applicant's vehicle was the product of a conscious act of driving was unsafe or unsatisfactory in the sense that it is unreasonable or cannot be supported by the evidence, and in all the circumstances it would be dangerous to allow it, and consequently the conviction, to stand.  Authority for that proposition is Kelly v O'Sullivan (1995) 4 Tas R 446, applied in Levy v Gray A11/1996.

1. It would be unsafe or unsatisfactory if it was reasonably possible that the movement of the applicant's vehicle, as described in Mr Michieletto's evidence, was due to an unconscious act or acts.  Mr Coates submitted that the finding was not unsafe or unsatisfactory in that sense.  The submission was that it was reasonable to find, as the learned magistrate did, upon the basis of the expert opinion that the marks on the road at, or very close to, the point of impact showed that the applicant consciously applied the brake and turned the wheel hard left at the last instant to try and avoid the collision.  I accept that submission.  Mr Coates submitted that the time interval between the first movement and that last instant conscious attempt to avoid the accident was so short that the likelihood of the applicant falling asleep, suffering a sneezing or coughing fit or the like in the second or two between the two events was fanciful.

1. The problem with the learned magistrate's reasons for judgment is that he makes an assumption that the first movement of the applicant's vehicle, witnessed by Mr Michieletto, involved a "correction".  Mr Michieletto did not use the word "correction" in his evidence.  The learned magistrate gave no basis for his use of that word.  He just assumed that the movement that Mr Michieletto first witnessed was a correction, for he said:

"The first [possibility] was that the driver was distracted by something that she was doing or by something causing the vehicle to veer to the right in the line of travel on two occasions observed, the defendant being able to correct the first time …" [emphasis added.]

1. Mr Coates submitted that the description given in evidence by Mr Michieletto entitled the learned magistrate to reach that conclusion, but this submission will not stand if there are other rational explanations for that first movement.  In my opinion there are other rational explanations.

1. It is reasonably possible that the applicant unexpectedly suffered a severe coughing or sneezing fit and in consequence, "started to move like when a vehicle goes to overtake" but was able to realise the danger and pull back.  The fit may have continued immediately thereafter and to such a severe degree that the applicant was unable to control her vehicle and it crossed onto the incorrect side.  Similar scenarios can be envisaged in the case of an unexpected fainting fit or giddiness or even falling asleep, half waking, correcting the vehicle and then immediately falling asleep again.

1. Further, it seems to me that the words Mr Michieletto used to describe the event should not be construed like a deed from which precise inferences might be drawn.  All the events happened very quickly.  He was unable to recall the lane configuration at the point of the accident, nor the position of the applicant's vehicle in any lane.  His evidence is reasonably consistent with the proposition that the first movement was not a correction at all, but an unconscious movement made whilst falling asleep ("nodding off") or whilst in the grip of a fainting spell or during, and as a result of a continuous, uncontrollable fit of coughing.

1. The learned magistrate failed to consider these matters at all because he made an assumption that the first movement was an act of conscious driving.  Had he considered the matters to which I have just referred, he would, or ought to, have considered them to be reasonably possible explanations for the movement that Mr Michieletto first observed and consequently concluded that he could not be satisfied beyond reasonable doubt that the vehicle's movement right across to the wrong side of the road was a conscious, and therefore, negligent act.

1. Counsel were agreed that in the event of a determination that the conviction was unsafe or unsatisfactory there should be no rehearing.  Accordingly, the orders on the motion to review are that the conviction is quashed and the orders of sentence, and costs set aside.