Ogden v The Queen - [2011] VSCA 181

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ogden v The Queen

Details

AGLC: Ogden v The Queen [2011] VSCA 181
Case: [2011] VSCA 181
Decision Date: 31 May 2011

CaseChat Overview and Summary

The case of Ogden v The Queen involved a challenge by the respondent, the Crown, against a decision to allow an appeal against conviction by the appellant, Ogden. The appellant was convicted of dangerous driving causing death and sought leave to appeal on various grounds, including the handling of hearsay evidence and the direction provided to the jury regarding the use of such evidence. The appeal was heard by the High Court of Australia.

The primary legal issues centred on whether the trial judge correctly applied the Proviso in s 59 of the Evidence Act 1995 (Cth) when directing the jury on how they could use hearsay evidence of the appellant's intention, and whether the judge's direction in relation to dangerous driving was flawed. The appellant argued that the trial judge's directions were inadequate and prejudicial, leading to an unsafe and unsatisfactory verdict.

The Court found that the trial judge erred in not applying the Proviso, which allows for the admission of hearsay evidence in criminal proceedings under specific circumstances. The judge did not properly direct the jury on how to consider the hearsay evidence in relation to the appellant's intention, which was a critical factor in determining whether the driving was dangerous. Additionally, the Court identified errors in the direction regarding the elements of the offence of dangerous driving causing death, which influenced the jury's decision. The cumulative effect of these errors was sufficient to cast doubt on the safety of the appellant's conviction. Consequently, the application for leave to appeal was granted, and the appeal was allowed, leading to the ordering of a re-trial.

The final orders of the Court were that the appeal against conviction was allowed, the conviction was quashed, and a re-trial was ordered. The Court held that the errors in the trial judge's directions were significant enough to necessitate a re-trial to ensure a fair trial process.

Orders