Ogden v The Queen
[2011] VSCA 181
•31 May 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0580
| KERRY LEE OGDEN |
| v |
| THE QUEEN |
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| JUDGES | NEAVE, REDLICH JJA and LASRY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 11 May 2011 |
| DATE OF ORDERS | 31 May 2011 |
| DATE OF REASONS | 30 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 181 |
| JUDGMENT APPEALED FROM | R v Ogden (Unreported, County Court of Victoria, Judge Murphy, Date of Verdict: 17 March 2009, Date of Sentence: 31 March 2009) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Culpable driving – Evidence of intention – Hearsay – Direction on how evidence could be used – Whether to apply the Proviso – Dangerous driving causing death – Directions based on Director of Public Prosecutions vMontero (2009) 198 A Crim R 68 – Application granted and appeal allowed – Re-trial ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C B Boyce | Victorian Legal Aid |
| For the Respondent | Mr J D McArdle QC with Mr C Carr | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
I have had the advantage of reading the draft reasons of Lasry AJA. I agree with his Honour that the application for leave to appeal against conviction should be granted and the appeal allowed, the convictions be quashed, and the matter be remitted for re‑trial in the County Court. I wish only to make a brief comment about grounds of appeal 1 and 6.
The source of his Honour’s error may have been his attempt to instruct the jury on the nuances of the hearsay rule, when it was unnecessary to do so. Having satisfied himself that the evidence of the applicant’s and Mr Bothe’s intention was admissible under the principle in R v Walton[1] and Bullv The Queen,[2] the judge could simply have told the jury that, if they accepted that these statements had been made, the applicant and Mr Bothe’s intention that Mr Bothe would drive to the hospital should be taken into account in deciding whether there was a reasonable doubt about who was driving the car at the time the accident occurred.
[1](1989) 166 CLR 283.
[2](2000) 201 CLR 443.
In MG v The Queen,[3] this Court referred to the simpler approach which New Zealand court take in directing juries, commenting that:
In New Zealand, trial judges sometimes instruct the jury by way of a ‘question trail’ in which a series of factual questions are posed for the jury which are the product of the obligation to relate the law to the issues in this case.’[4]
[3](2010) 200 A Crim R 433.
[4]Ibid 441 [29].
In this case, the main factual question to be determined was whether the applicant was driving the car. The evidence of intention bore directly on that question. There was no need to complicate the jury charge by directing the jury on the admissibility of the intention evidence.[5]
[5]See also Justice Geoffrey Eames, ‘Towards A Better Communication With Jurors’ (2003) 24 Australian Bar Review 35; Victorian Law Reform Commission, Jury Directions: Final Report (2009) Chapter 2.
REDLICH JA:
I agree with Lasry AJA that there was a misdirection to the jury. The evidence of the applicant’s statements to various witnesses that she intended that Mr Bothe would drive to the hospital were admitted as evidence of the applicant’s intention at the time those statements were made. Her state of mind at those times was a fact relevant to the fact in issue of whether it was the applicant who was driving the car at the time of the accident.[6] As a consequence of the directions given by the trial judge, there is a perceptible risk that the jury may not have understood that the evidence could be used in this way.
[6]Walton v The Queen (1989) 166 CLR 283, 288, 302.
The trial judge told the jury that out of court statements by a witness who does not give evidence are hearsay and are not admitted as to the truth of their contents. That was incorrect, as the fact asserted by the applicant that she did not intend to drive the car was a matter that the jury was entitled to take into account on the issue of whether the applicant was later driving the car. Neither was it appropriate to describe the evidence as hearsay. It was not evidence that fell for exclusion on the basis of the hearsay rule. Even allowing for the view that it contained an element of hearsay,[7] to so describe the statements to the jury may of itself have detracted from any probative value which the jury would otherwise have attached to such statements. As the trial judge did not instruct the jury as to how the evidence of the applicant’s intention could bear upon the fact in issue, the misdirection was significant as the primary question at trial was whether the evidence was sufficient to establish beyond reasonable doubt that the applicant was the driver of the car.
[7]Cross on Evidence (Australian edition) [31065].
I agree with Lasry AJA for the reasons he gives that the proviso to s 568(1) of the Crimes Act 1958 cannot be applied, that leave should be granted, the appeal allowed, the convictions quashed and an order made for a re-trial.
LASRY AJA:
On 31 May 2011, orders were made granting leave to appeal, allowing the appeal and ordering a new trial. These are my reasons for joining in the making of those orders.
On 17 March 2009, the applicant was found guilty by a County Court jury of two counts of culpable driving. Those verdicts arose out of a motor vehicle collision on Monday 10 July 2006, some time between 3:50 am and 6:55 am, which resulted in the deaths of Murray Winton Bothe and Neil William Dunstone.
On each of the two counts of culpable driving the applicant was sentenced to be imprisoned for a period of seven years. The sentencing judge ordered that three years of the sentence imposed on count two be served cumulatively on the sentence on count 1, resulting in a total effective sentence of ten years’ imprisonment. His Honour ordered that 7½ years imprisonment be served before the applicant was eligible to apply for parole. His Honour further ordered that all licences held by the applicant be cancelled, that she be disqualified for a period of nine years from obtaining a licence and that she not be re-licenced except by order of a Magistrate.
The applicant now seeks leave to appeal against her conviction and sentence.
Background
At the trial of the applicant, the main issue was whether or not she, or one of the two deceased men who were in the vehicle with her, was driving the vehicle at the time of the collision. Realistically the only other person who could have been driving was the deceased Murray Bothe, as the deceased Neil Dunstone had injured
his hand and, at the time, was being driven to hospital. The case against the applicant was circumstantial. The factual background to the offence was as follows.
At the time of the accident, the applicant was aged 33 years and resided in Glenorchy with her child Cameron Winnick. Late on Sunday 9 July 2006, the deceased man Neil Dunstone, a woman named Sue Gillon, who was Dunstone’s former wife, and Murray Bothe, who was in a relationship with the applicant, were at the applicant’s home. Sue Gillon left at approximately 1 am that morning.
Alcohol was being consumed and at some stage in the evening Dunstone had possession of a chain saw and, in the course of touching the moving chain, cut his hand. All present agreed that his injury required medical treatment. There was some discussion about whether an ambulance was to be called but, ultimately, in the early hours of the morning of Monday 10 July, the applicant, Murray Bothe and the injured Neil Dunstone got into Bothe’s Ford Utility and headed for the Wimmera Base Hospital at Horsham. It was during this drive that the fatal incident occurred on the Glenorchy Roses Gap Road.
During the evening and prior to leaving for the hospital, Ms Ogden and the two men who died had all been drinking although the amounts varied. Ms Ogden’s blood alcohol reading taken at 9:50 am on 10 July 2006 at the Alfred Hospital was 0.187%. The autopsy evidence appears to show that the deceased man Dunstone had a blood alcohol reading of 0.25% and the deceased man Bothe a reading of 0.05%, at the time of their death.
Between 3.50 am and 6.55 am on 10 July 2006, the Ford Utility veered off the road and collided with three trees. During the impacts Bothe and Dunstone were killed. On the Crown case the utility was driven by the applicant. The defence case was that it was driven by Bothe. When police observed the bodies after the incident neither Bothe nor Dunstone was wearing a seat belt. The police reconstruction evidence indicated that the incident commenced with the vehicle starting to leave the road. The person steering the car over-corrected, the vehicle began to ‘yaw’ and then struck three trees and came to rest facing back in the direction from which it had come. When civilian and police witnesses arrived on the scene, the two deceased men were in the vehicle near the passenger side door and the applicant was lying on the ground near the driver’s side door. She was observed to be unconscious but was roused. I will return later to the detail of the reconstruction of the accident, which is relevant to the issue of who was driving the vehicle.
At the trial, as I have said, the primary issue, apart from the need for the prosecution to prove that the driving was culpable, was whether or not the applicant could be proved to have been the driver of the vehicle.
I turn then to the grounds of appeal.
Grounds 1 and 6 - Directions on the VATE evidence of the child Cameron Winnick and the evidence of the witnesses Bassin and Young
The original formulation of ground 1 and ground 6 has caused some level of confusion. These grounds can best be described as complaints about the directions given to the jury by the trial judge as to how they might use, or not use, certain evidence that was before them. In summary that evidence suggested that prior to the driving which resulted in this fatal incident, the applicant and the deceased, Murray Bothe, had both stated an intention that Bothe would drive his own car to take the injured man Dunstone to the hospital in the early hours of the morning. Since the central issue in the case was the identity of the driver and the evidence was relevant for that purpose, in this Court it was submitted on behalf of the applicant and accepted by senior counsel for the Crown that this evidence of intention fell into the category of evidence held to be admissible by the High Court in R v Walton[8] and more particularly in Bull v The Queen.[9]
[8](1988-1989) 166 CLR 283 at 302.
[9](2000) 201 CLR 443 at 479-480.
The applicant has a son, Cameron Winnick. He was aged 10 years at the time of the trial. Cameron was at the premises on the evening of these events and had some knowledge about whether, in the ordinary course of events his mother drove Murray Bothe’s car, and whether she had expressed any intention that night about who should drive. On Monday 10 July 2006, Acting Sergeant Brooke Walker interviewed Cameron and the transcript of that interview was read to the jury by the prosecutor by agreement. In his answers to the questions asked of him Cameron described being aware of the injury to Dunstone’s hand and, in particular, he said he heard his mother say that Murray Bothe was not allowed to have too many drinks because he had to drive to Horsham Hospital. At one stage he was in the kitchen and noticed that the time was 10:30 pm. He heard the vehicle start up at what he thought was around midnight and he assumed Mr Bothe was driving because he always drove his own vehicle except on occasions when his mother’s car was being fixed and she borrowed Bothe’s car.
A statement to the police from Dr Yvonne Bassin, an Intern doctor at the Wimmera Base Hospital Horsham, was also read to the jury as part of the prosecution case. Dr Bassin was at the hospital and spoke to the applicant by phone at about 3:50 am on the morning of 10 July about the prospect of bringing Mr Bothe into the hospital. The passage relevant for this ground of appeal is as follows:
She said, ‘I just want to know if I can bring my friend in to hospital, he has cut his finger with a chain saw, and I've been holding it together for an hour now. I said, ‘of course you can bring him in. What was he doing chain-sawing in the middle of the night?’ She said, he wasn't being an idiot or anything, he was just out with the spotlight and hurt himself.’ I said, ‘well, it sounds like it would be a good idea to get an ambulance’, she said, ‘no, it will be all right, I will get my boyfriend to drive me in.’
Malcolm Bradley Young was called in the defence case. He is a friend of the applicant and spoke regularly on the telephone to her. Among his other evidence he said that on the night of the accident he had spoken to the applicant and Bothe on the phone about the injury to Dunstone’s hand at about 1:00 am. The evidence about the conversation with Bothe was as follows:
How did you know - did you speak to a person?---I recognised Murray's voice.
Yes, go on?---It had been suggested that they drive Neil to the hospital and between a consensus of agreement between Kerry and myself that as she had been drinking, Murray would drive. I enquired with her what was Murray's status regarding the amount of alcohol he had consumed.
I will just stop you there. You spoke to Murray, what did you say to Murray?---I confirmed the fact with Murray that he had not - that he had only consumed a couple of drinks earlier in the night and then they would, indeed, wait another hour before proceeding to the hospital, and that Murray would, indeed, drive them.
When was the next time you spoke to Kerry?---Well, the last call was at approximately 3 am, and those facts were confirmed at that stage that Murray would drive and they would be proceeding to the Horsham Hospital.
No challenge was made to this evidence by the prosecutor in cross‑examination. During the course of the trial a number of issues arose about the admissibility of the evidence that it was intended that Murray Bothe would drive Dunstone to hospital in Bothe’s car.
Initially the prosecutor informed the trial judge that there was a VATE tape of Cameron Winnick’s interview which the defence wished to be presented in the Crown case. Counsel for the applicant said that he preferred the transcript to be read to the jury rather than the tape played and that is what occurred. Immediately before it was read, the trial judge told the jury that it was to be treated as though it was evidence from the witness box.
The following Monday the trial judge then raised issues about the fact that Cameron was a child, his evidence was unsworn and not tested by cross examination. In the discussion that followed, the judge raised issues about the parts of the statement that were hearsay and asked counsel to tell him how those statements could be used. Although there was some discussion about the matter, ultimately counsel agreed that the child should not be called.
The judge then appeared, at least informally, to rule as follows:
That's my ruling. Unless you make some further application, I'll make whatever - give whatever direction I need to give them on the basis, on the status of unsworn evidence as distinct from sworn evidence, about that evidence; and insofar as it contains hearsay statements, they are not to prove the proof of the statement, they are merely to prove that they were being led to prove that the statements were made.
That having been said, counsel for the applicant then continued to make submissions about whether it was capable of being treated as sworn evidence. His Honour then observed:
But it doesn't get better than hearsay. It doesn't get better than an out-of-court statement proved that the statement were to - led to prove the statement that was made not for the truth of it. It doesn't go to who was driving the car.
He then said:
… the second hand statements of the accused as to who was to drive the car and why Murray was not drinking, are again matters that they’re being led to prove the truth of their contents, but merely to being led as evidence of her state of mind, at that time or as the statements were made. And they can’t – they’re not leading us to the proof as to that he did in fact drive the car. (emphasis added)
The Crown case closed and on behalf of the applicant, the witnesses Malcolm Young and Mark Dohrmann, an expert witness, were called in the defence case. In their final addresses, nothing was said by either counsel to the jury about the evidence of the child Cameron, the Crown witness Bassin or the defence witness Young, including how their evidence might be used or why it was put before the jury.
However, it is significant that in the course of the address on behalf of the applicant it was suggested that a reason why the jury should not be satisfied that the applicant was the driver of the vehicle was because the owner of the vehicle, Mr Bothe, had a blood alcohol reading of 0.05% and, of course, it was his car. Why, counsel asked rhetorically in the course of argument, would he permit the applicant to drive the vehicle when he was the least affected by alcohol and it was his vehicle? To that argument might have been added the further point that the intention of both the applicant and Mr Bothe as described by the relevant witnesses was that the latter would drive the car because he was not intoxicated and that this very issue had been discussed on the phone with Young not long before the driving that led to the incident.
In his directions to the jury, the trial judge, dealing with the evidence of the child Cameron, Dr Bassin and Malcolm Young said:
You have the evidence of the boy, Cameron. He was aged 10 at the time of this statement that was read into evidence on Friday. His evidence is not sworn. Children often give unsworn evidence in criminal trials. You can take into account the fact that it is not sworn and determine what weight you attribute to the fact that he has not sworn that evidence like the other witnesses. You also take into account that the VATE tape was not the subject of cross-examination and thus not tested. Take those matters into account when assessing the reliability of his evidence.
Take into account, within the VATE tape as read out by Mr Johnson, he indicated that he knew the difference between truth and lies, and promised to tell the truth.
Cameron makes a number of statements in his statement, of what his mother, the accused woman, said to him during that evening, particularly as to who was going to drive Mr Dunstone to hospital. Similarly, Mr Bourke, who gave evidence yesterday, gave evidence as to what he had been told on the phone as to the arrangements of who was to drive to hospital, namely Mr Bothe.
Those statements are described as hearsay, namely an out of court statement by a witness who does not give evidence. Those statements are only given in evidence as proof that they were made by Ms Ogden. They are not admitted as to the truth of their contents. So in other words Cameron said that he was told by Ms Ogden that Murray was going to drive. That statement is not led in evidence of proof that in fact Murray Bothe did drive the car. So the statements of what a witness has been told cannot be used by you as to the truth of the contents of the statement. (Emphasis added)
There are several aspects of these directions that require comment. First, it was appropriate for the jury to be reminded that the evidence was unsworn and that the child’s evidence was not tested. However, it was agreed by counsel that this evidence was evidence the jury could act on.[10] If the child had been called to give evidence, it would have been in the Crown case and cross examination would have been on behalf of the applicant.
[10]See Evidence Act 1958, s 23(2A)-(2B).
Second, having raised the concept of ‘hearsay’ his Honour gave no explanation of the use that could be made of the evidence notwithstanding its apparent hearsay nature. Third, his Honour’s directions about why the evidence was admitted was incorrect. The direction was wrong because in effect it misled the jury as to how it could be used. In the way that it was phrased it, in a sense, reversed the onus of proof by directing the jury that it could not be used as ‘proof that in fact Murray Bothe did drive the car’. Nor did his Honour tell the jury that it was evidence which could be taken into account in deciding whether the applicant had in fact driven the car. Fourth, it would appear that the reference to the evidence of ‘Mr Bourke’ was intended to be a reference to the evidence of Malcolm Young.
His Honour immediately followed with a reference to the evidence of one person who described a pre-accident conversation and two people who gave evidence about what the applicant had said after the incident:
You also have the statement from the doctor who was a registrar at the hospital. Her statement was admitted by consent. You are to treat it as though it was sworn. You will also have evidence from Officer Cosgriff as to what he noted was the conversation between Ambulance Officer Rice and Ms Ogden. So he took a note, he says, of what Rice asked Ms Ogden, and her response.
I assume his Honour’s reference to the ‘statement from the doctor’ refers to the witness Bassin to whom I have referred above. His Honour did not explain the way in which the evidence could be used.
As I have said, the primary issue before the jury was whether the applicant was the driver of the car. The jury heard evidence from three separate witnesses (Winnick, Bassin and Young) that the intention of both the applicant and Bothe was that he would drive the vehicle. The jury received no clear indication as to why that evidence was before them and how it might be used. The evidence was described as limited to establishing that certain things were said. All of these witnesses gave evidence or statements of the intention of both the applicant and the deceased man Bothe that the latter drive the car. Although the applicant and Bothe might later have changed their intention, it was never properly explained to the jury that this evidence was relevant and admissible in determining who was actually driving the car at the time the accident occurred.
In this case, the legitimate purpose of the evidence of the representations of the applicant and the deceased man Bothe was to enable the rational drawing of inferences about their intention as to who would drive the vehicle. Those intentions were a fact relevant to the central fact in issue. Given that the applicant denied being the driver of the car, it was relevant for the jury to know what the pre-accident intentions of both the applicant and the owner of the car were. Those intentions that she was not to be the driver can be relied upon as being relevant to and consistent with her position at trial that she was not driving.
It is to be noted in passing that no counsel took any exception to his Honour directions on these matters.
In Bull v The Queen,[11] McHugh, Gummow and Hayne JJ discussed the admissibility of evidence about intention, in that case the intention of the complainant in a case concerning sexual offences. Their Honours held in that case that evidence of a telephone conversation was admissible on the grounds that the conversation tended to prove the complainant’s state of mind, and was therefore relevant to a key fact issue, that of consent. Applying their Honours’ analysis in this case, evidence of what was said by the applicant and by Mr Bothe as to their intention about who would drive the vehicle ‘…was relevant to, in the sense of being rationally probative of, a fact…’ being the intention of the applicant and Mr Bothe about who would drive the car ‘…which is itself relevant to a fact in issue….’ being whether or not the prosecution could prove beyond reasonable doubt that the applicant was driving the car when the fatal collision occurred. As noted, above, in Bull the High Court was concerned with whether the evidence was admissible. In this case, the evidence was admitted with inadequate directions on the use the jury could make of it.
[11](2000) 201 CLR 443 at 477.
In this Court, the Crown accepted that it would have been ‘preferable’ for the jury to be properly instructed as to how this evidence might be used. However, it was then submitted that given that there was no logical use for the evidence except to enable the jury to infer that the applicant acted in accordance with her intention, if they accepted the evidence then they must necessarily have understood its purpose. I would not accept that submission. Endeavouring to consider the judge’s directions as a juror may have, the logical consequence of his Honour’s instructions was that the evidence was admitted to establish that she stated what her intention was. Beyond that, however, they were told, at least in relation to the transcript of the child’s interview that the ‘…statement is not led in evidence of proof that in fact Murray Bothe did drive the car.’ Leaving aside the fact that the proper question is whether such evidence raised a reasonable doubt on the issue of whether the Crown had proved the applicant was driving, that direction left no use for the evidence. Although it was relevant to that central fact in issue this was never explained to the jury. Indeed, in my opinion, the effect of the direction was to denigrate the relevance of the evidence.
If the jury had been properly directed on the use they could make of the transcript of the interview with Cameron Winnick, the extract of the evidence of Dr Bassin at the Hospital and the sworn evidence of Malcolm Young, their view of the events which resulted in these deaths might well have been different. The jury were entitled to be told that this evidence did not, of itself and bearing in mind the onus of proof, establish that Murray Bothe was the driver of the car. It was evidence that established that both he and the applicant intended that he would drive. That evidence was clearly relevant to the central issue in the trial. As such, that evidence could be used, with other evidence including the evidence of Mr Dohrmann and the witnesses to whom the applicant spoke immediately after the incident, for the purpose of raising a reasonable doubt as to whether the applicant was in fact the driver of the car. It is true that the evidence was before the jury[12] but, in my opinion, the effect of the judge’s directions was to render the evidence unusable.
[12]Unlike the circumstances in Bull v The Queen (2000) 201 CLR 443.
In the form in which they were argued I would uphold ground 1 and ground 6 of the appeal.
The Proviso
That is not the end of the matter. The Crown has submitted that even if these grounds succeed, what is referred to as ‘the proviso’ should be applied. The legislation relevant to this application[13] is section 568(1) of the Crimes Act 1958, which is as follows:
(1)The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal:
Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
As the proviso was then expressed, it was for the Crown to establish that the error in the judge’s jury direction did not result in any substantial miscarriage of justice.
[13]See now Criminal Procedure Act 2009, s 276.
In Weiss v The Queen[14] the High Court said:
It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.
[14](2005) 224 CLR 300 at [44].
The requirement imposed on this Court by the High Court in Weiss[15] is that the task must be undertaken in the same way that an appellate court decides whether the verdict of a jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. In summarising the task that confronts us in this case, this Court said in R v Weiss (No 2):[16]
To summarise, therefore, our task in considering the application of the proviso in the present case is to review the record for ourselves and decide whether, on the evidence at the trial, Weiss was proved beyond reasonable doubt to be guilty of murder. Only if we reach an affirmative conclusion on that question can it be said that no substantial miscarriage of justice has occurred. In considering that question, we are to take account of the fact that the jury convicted him, and to give due weight to the advantage which the jury had in seeing the witnesses and assessing their credibility. We are also to bear in mind that there are some cases where it is possible to conclude that an error made at trial would, or should, have had no significance in determining the verdict that was returned by the trial jury.
[15](2005) 224 CLR 300 and applied by the Court of Appeal in R v Weiss (no 2) [2006] VSCA 161.
[16][2006] VSCA 161 at [115].
I will turn now to the evidence and those parts of it that were in contention. After being roused from unconsciousness the applicant said that she was a passenger, and she maintained that position in the course of her record of interview. The other two important parts of the evidence were the descriptions of the scene as it was discovered and later attended by police, and the competing opinions of Dr Odell and Mr Dorhmann who gave expert evidence.
In support of the conclusion that the applicant was the driver of the vehicle, the Crown relies on the following evidence:
(a) When the scene was discovered by the witness, Mark Ervin, in the early hours of 10 July 2006, the applicant was found lying beside the driver’s door of the vehicle;
(b) The driver’s door appeared to him not to be distorted and was ajar or resting on the striker plate;
(c) The applicant was wearing an ‘Ugg’ boot when she was found lying beside the car. (This was in dispute). There was also evidence that another similar boot was seen in the vicinity of the foot-well on the driver’s side of the vehicle near the pedals;
(d) From that evidence it was open to be inferred that the applicant had been the driver and left the vehicle through the driver’s door after the collision. She had been wearing two ‘Ugg’ boots, one of which remained on the driver’s side of the vehicle. One witness, Detective Sergeant Walker, said that the applicant was wearing one ‘Ugg’ boot and the other was in the vicinity of the pedals on the driver’s side of the vehicle;
(e) The driver’s side airbag deployed and a blood stain and trace DNA sample were located. The blood stain was of male origin and the DNA sample was female and was 310 times more likely to have come from the applicant and another person than from two persons chosen at random from the Caucasian population. No analysis was done based on samples from Bothe or Dunstone. That evidence was said to support the conclusion that the applicant, as the driver, came into contact with the airbag when it deployed after the first impact with the first tree;
(f) Bothe and Dunstone were found without seat belts in the middle and on the passenger side of the vehicle; and
(g) Dr Morris Odell gave evidence as to where the occupants of the car were at the time of collision. Based on his opinion about the behaviour of the vehicle and the injuries suffered by its occupants, he concluded that Dunstone, who was the most seriously injured, was next to the door, that Bothe was next to him and the applicant, who had the least serious injuries, was the driver.
In considering whether the proviso can be applied it is necessary to analyse the competing expert evidence relevant to the identity of the driver. Dr Odell had degrees in engineering and medicine and expertise on the effects of ingestion and elimination of alcohol. His evidence in that area was not in contention.
Dr Odell said he had examined a ‘significant part’ of the brief in the matter and looked at photographs of the injuries to the deceased men and the applicant. The applicant had a fractured collarbone, rib fractures on the left side and bruising on her left thigh. He was not able to draw conclusions from the injuries about whether they were caused by a seat belt or whether the applicant was travelling in the passenger seat on the left hand side of the car, as she asserted. He said that if the applicant had been sitting in the passenger seat wearing a seat belt over the left shoulder it is ‘conceivable’ that the bruising that could be seen could have been caused in that way. However he suggested that possibility gave way to his interpretation of her other injuries and those of the other two occupants of the car.
Dr Odell then described the severe crush injury to Dunstone’s chest, and his severe head injury, the similar although slightly less serious injuries to Bothe and the least serious injuries to the applicant, all of which were on the left hand side of her body. He said that this pattern of injuries suggested that, given the nature of the incident and the location of the impacts on the vehicle, she was ‘the most likely’ to have been the driver. Had she been at the extreme left of the car Dr Odell said that she would have been killed. He thought that if she was on the passenger side and wearing a properly designed and applied seat belt it was ‘virtually impossible’ for her to have been thrown out of the car.
When cross-examined, Dr Odell said that his knowledge of the crash was that the vehicle left the road at about 100 kmh and ‘hit some trees’. He did not know how many trees the car had hit and was not aware that the vehicle had become airborne as the police accident reconstruction witnesses suggested. He had not examined the applicant and he had not been to the scene or inspected the motor vehicle, although he had seen photographs of the vehicle indicating the areas of impact. He later agreed that he was not in a position to determine whether or not the seat belts were functioning. He agreed that much of his opinion was based on the fact that there was a side impact. If the vehicle was airborne and the occupants were not wearing seat belts the movement of the occupants would depend on where the vehicle hit the tree. He agreed that it was hard to be precise because what ‘exactly’ happened is unknown.
Dr Odell accepted that it would be useful to have examined the deflated airbag in the vehicle and to compare it with bleeding injuries to establish where the blood on the airbag might have come from. He agreed that it appeared the applicant suffered no facial injuries, but suggested that given that an airbag was meant to work in conjunction with a seat belt he would not expect blood staining from injuries to have occurred on deployment of the airbag. However, he accepted that if the airbag deployed when the vehicle struck the first tree, by the time the vehicle hit the third tree a person in the driver’s seat could have had an impact with the by then deflated air bag leaving a blood stain. He also agreed it was possible that when the vehicle was airborne, if the driver was not wearing a seat belt, that person could be ‘thrown around’ in the cabin.
Dr Odell was then questioned about the injuries to the applicant which were shown in photographs tendered as Exhibit 1. During that part of the cross‑examination he gave the following evidence:
……but, Doctor, what I'm suggesting to you is that the injury to the clavicle left shoulder is consistent with a seatbelt injury on a passenger side. What do you say to?---That's a, that's a possibility.
HIS HONOUR: Seatbelt injury. You gave evidence earlier that it seems as though there was a number of breaks to the collar bone, is that right?---That's right. The collar bone's been shattered.
Does that happen in a seatbelt injury, does it?---Ah, look, I think that's possible. You can't exclude it from happening that way.
His Honour asked Dr Odell whether the hospital record noting ‘seat belt injury, left flank’ would be consistent with the applicant being the driver and he answered ‘well possibly,’ and then said that he had used the record to indicate the location of the injury, rather than its cause.
It was put to Dr Odell that the injuries the applicant suffered were equally consistent with her having been thrown out of the vehicle as a result of its ‘out of control’ movements. It was suggested that when the vehicle hit the first and second trees the passenger door opened and the applicant ‘flew’ out and landed on the ground. It was put that the vehicle then hit the third tree, swung around and landed near where she was lying. In answer to that proposition, Dr Odell said ‘I don’t think so’. He was later asked whether the fact that the applicant had a clean top with no blood staining supported the conclusion that she had been thrown from the car, given that there was blood around the inside of the car, Dr Odell said that was ‘one way of looking at it’. However he said that most of the blood came from the impact of Dunstone’s head with the door and if the applicant had exited the vehicle through the driver’s side door there would be no reason for her to have blood on her.
The other expert witness, Mr Mark Dohrmann, was called in the defence case. He is a mechanical engineer with post graduate qualifications in ergonomics and, based on his qualifications and experience, was able to give evidence about accident reconstruction. He had been to the scene of the accident and had read the brief, committal transcript, medical records and the statement of Dr Odell and seen relevant photographs. His opinion expressed on the balance of probabilities, was that the applicant was not the driver. His reasons included the following :
(a) when the car hit the second tree just in front of the passenger door it probably opened. The car continued to rotate and the person who was in the passenger seat was thrown out of the vehicle;
(b) when a side window was smashed the glass hit the driver’s seat, suggesting that at the time, no-one was sitting in the driver’s seat. There was also glass behind the cabin, indicating that glass flew backwards when the door was open. This reinforced the view that on the first impact the three people slid across the seat and the open door allowed the person next to it to slide out.
He concluded that:
For those and some other reasons which no doubt we'll get into I formed the view that the three people who were in the front seat slid across, the first person out was found on the ground, and that was Ms Ogden, the other two who were there went from driver middle to middle passenger, and that's how they were found.
Mr Dohrmann accepted that if the applicant had been sitting on the passenger side and wearing a functional seat belt she would not have been thrown out. He said he had not seen the vehicle and that it was unavailable. He said his calculations and conclusions took into the account the likelihood that the vehicle had been airborne and he concluded that there must have been a significant amount of movement in the vehicle. He said the combination of forward motion, rotation, hitting a tree and bouncing would cause life threatening injuries. He said that in his opinion, at the time that Dunstone’s head hit the passenger side, the door was open. He thought his head was hit between the closing door and the frame of the vehicle. He also concluded, although not with certainty, that on the balance that the blood on the air bag was the blood of the driver. Mr Dohrmann thought that the applicant may have been lying where she fell or had staggered some distance after she was thrown out of the car. He said that her position was consistent with her having been thrown out of the passenger’s door as the car rotated before it came to rest against the third tree.
In cross-examination the witness accepted that the vehicle was less than 18 months old at the time of the accident. He thought the vehicle may have travelled between 8 and 12 metres in the air. He was challenged about that and whether the plan and the photographs supported his opinion. He said that because of the slope of the terrain it was impossible for the vehicle to leave the road at the speed that it did and maintain contact with the ground to the point of impact with the first tree the vehicle hit. Mr Dohrmann agreed that the applicant’s DNA being on the airbag was consistent with her head coming into contact with it. He accepted that the glass which was on the driver’s seat might have got there by falling between the driver’s legs or down at the back. He agreed that if the applicant was the driver one of her boots might have got pushed off in the collision or after it. Asked about the injuries to Mr Bothe’s right hand side he accepted that they were consistent with the suggestion that he had been pushed to the left by the applicant who was sitting in the driver’s seat.
Asked about the injuries that suggested the applicant had been thrown from the car he referred to the knees, the bruise on the right hand side and the hip and the shoulder. Mr Dohrmann said that if the person in the passenger seat had been wearing a seat belt, on the balance of probabilities they would not have been thrown out. However in re-examination he said, among other things, that the effectiveness of a seat belt depended on it being properly deployed and working.
Through no fault of Dr Odell there were shortcomings in his evidence which might have raised a reasonable doubt on the central issue. They included:
(i) He had not had the opportunity to examine the vehicle;
(ii) He had not examined the applicant;
(iii) He accepted that the alternative explanation for the applicant’s injuries was possible;
(iv) He had not been to the scene and conducted an inspection;
(v) His thesis had been formulated without knowing that during its course the vehicle had been airborne; and
(vi) His evidence on the blood staining on the airbag left open the defence alternative, although he could not have been taken to accept it.
Likewise Mr Dorhmann’s evidence also had some shortcomings:
(i) Although he had visited the scene, he also had not seen the vehicle;
(ii) If the applicant had been wearing a seat belt as she had told the police she had put on, she would not have been thrown out of the vehicle;
(iii) His opinion about whether the vehicle was airborne and the location of the broken glass was open to question. As was demonstrated in the cross‑examination some of that evidence was at odds with the observations of police who went to the scene and charted the course of the vehicle;
(iv) He accepted that the injuries to the right side of Mr Bothe were consistent with the alternative account of who was driving; and
(v) Unsurprisingly, he could not give an explanation in relation to the boots said to have been worn by the applicant.
Given the emphasis on these two witnesses, in my opinion a careful reading of their evidence does not demonstrate that the opinion of one would have to be preferred over the other. Given the onus of proof, that is significant. Both witnesses were required to make concessions that there was a basis on which different conclusions could have been reached, though neither accepted the respective alternatives that were put.
In putting the Crown case to the jury, and thus relying heavily on the evidence of Dr Odell, the prosecutor suggested the key to the case was the nature of the injuries suffered by the three occupants of the car. The prosecutor also relied on the evidence of the police officer Walker who saw the boot on the foot of the applicant. He submitted that because the applicant had told police she got into the vehicle and put her seat belt on and was holding Dunstone’s injured hand, it would be most unlikely that she was thrown out of the car. Such a conclusion is consistent with all the injuries, the location of the boots and the location of the applicant outside the driver’s side door of the vehicle.
Among other considerations, counsel for the applicant put the case on the basis that of the three participants, Bothe was least affected by alcohol and it was his vehicle. There would be no reason why he would have allowed the more intoxicated applicant drive the vehicle. He relied on the fact that the blood stain on the deployed airbag was from a male and not the applicant. No fingerprints were taken from the steering wheel. He made submissions about the limitations on the evidence concerning the ‘Ugg’ boots and the fact that there is no photograph of the applicant with the boot on her. Bearing in mind the competing expert opinions it was submitted that the jury could not be satisfied beyond reasonable doubt that the applicant was driving the vehicle.
Conclusion on the application of the proviso
In my opinion, if the jury had been properly assisted by counsel in anticipation of an appropriate direction from the trial judge, they would have understood the following in a proper context. The applicant had declared her intention that Bothe would drive the vehicle in the presence of her son earlier in the night. She had expressed the same intention to the doctor on the phone to Horsham Hospital. Both she and, importantly, Bothe had declared that intention to Malcolm Young on the phone not too long before leaving the house. Whilst people may change their mind about their plans, and may be more inclined to do so when their judgment is affected by excessive alcohol consumption, there was no evidence as to why the change of intention might have occurred and two reasons why they might have stuck to their original plan. First, the vehicle belonged to Bothe. Second, on the basis of the amount alcohol consumed, he was by far the least intoxicated. Finally, such statements of intention are consistent with what the applicant said at the scene of the accident after recovering from unconsciousness and what she later told the police in the record of interview.
The evidence of intention described above was important. The trial judge should have referred to that evidence and given the jury an explanation of its use and its significance, reminding them of the competing arguments. None of that occurred. The applicant has satisfied me that there has been a substantial miscarriage of justice and I am positively of the view that as a result of what occurred, the applicant thereby lost ‘a chance which was fairly open to [her] of being acquitted’.[17]
[17]Wilde v The Queen (1988) 164 CLR 365 at 371.
I would allow the appeal and order that the matter be remitted to the County Court for re-trial.
Ground 2 – The alternative offence of dangerous driving
This ground complains that the learned trial judge erred in his directions to the jury as to the alternative offence of dangerous driving causing death. In view of my conclusion I on grounds 1 and 6, it is unnecessary to deal with this ground. However since there will be a re-trial of this matter, I will make some observations about the appropriate jury directions, to assist the judge below.
Counsel for the respondent conceded that the trial judge’s direction did not comply with the guidelines identified by this Court in Director of Public Prosecutions v Montero.[18] In my opinion the concession was properly made. It should be noted that Montero was decided after the applicant’s trial was conducted. It is sufficient to say that in the re-trial of this matter the jury should be directed in accordance with the principles in that case.
[18](2009) 198 A Crim R 68 at [80].
In view of the conclusion I have reached on grounds 1 and 6, the remaining grounds of appeal do not require consideration.
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