Owen Allen v The Queen
[2014] VSCA 180
•20 August 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0003
| OWEN ALLEN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, NEAVE and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 May 2014 |
| DATE OF JUDGMENT: | 20 August 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 180 |
| JUDGMENT APPEALED FROM: | DPP v Allen (Unreported, County Court of Victoria, Judge Bourke, 19 September 2013) |
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CRIMINAL LAW – Application for leave to appeal conviction – Dangerous driving causing death and serious injury – Applicant failed to give way, causing the collision of two other vehicles – Whether verdict unsafe and unsatisfactory – Whether evidence of child witnesses unreliable – Jury entitled to accept part of the evidence and reject other parts – Open to the jury to convict – Application for leave to appeal granted – Appeal heard instanter and dismissed – M v The Queen (1994) 181 CLR 487 – Road Safety Act 1986 (Vic) s 61.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Dann | Kerry Clancy Solicitors |
| For the Crown | Mr T Gyorffy QC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
NEAVE JA
KYROU JA:
The applicant was found guilty by a County Court jury of dangerous driving causing death, dangerous driving causing serious injury, failing to stop after an accident and failing to render assistance after an accident. He was sentenced to a total effective sentence of three years’ imprisonment, with a non-parole period of 18 months. He now seeks leave to appeal against his convictions for dangerous driving causing death and dangerous driving causing serious injury on the sole proposed ground that they are unsafe and unsatisfactory. If that appeal were to succeed, the convictions on the other two charges would also have to be set aside.[1]
[1]See Road Safety Act 1986 (Vic) s 61.
The accident
At dusk on 14 August 2010, the applicant was driving his blue utility down Docking Street, Wodonga, towards an intersection with Thomas Mitchell Drive. Thomas Mitchell Drive is a straight road running south east-north west, which has a slight gradient for vehicles travelling south east. At the same time, a four-wheel drive was being driven in the south east bound lane of Thomas Mitchell Drive by Mr David Grieg. His vehicle crossed double lines into the north west bound lane and collided head on with a truck driven by Ms Gabrielle Pirpinias. Ms Pirpinias died at the scene of the accident.
Mr Grieg was unable to remember what happened before the accident. He did not give evidence at the trial, but the jury heard a recording of the evidence he had given at a previous trial of the applicant,[2] about the health conditions from which he suffered and his use of prescribed drugs and alcohol prior to the accident. No detectable level of alcohol was found when Mr Grieg’s blood was tested after the accident.[3]
[2]The outcome of the previous trial referred to is not relevant to the present application.
[3]Evidence of Dr Dimitri Gerostamoulos. A very small amount of alcohol was registered by the police blood test at the scene, which was consistent with Mr Grieg’s evidence that he had about three-quarters of a plastic cup of white wine about 20-35 minutes before the collision.
The police evidence indicated that both Mr Grieg’s and Ms Pirpinias’ vehicles were travelling within the speed limit when they collided. The jury viewed the scene of the accident on 4 June 2013.
The Crown case was that the applicant turned left into Thomas Mitchell Drive, and failed to give way to Mr Grieg, who was travelling in the same direction down Thomas Mitchell Drive. Mr Grieg swerved on to the other side of the road to avoid the applicant. The Crown relied on the evidence of four children who said they had observed the applicant’s driving in Docking Street and/or saw him round the corner into Thomas Mitchell Drive. It was accepted by the Crown that the applicant stopped his car in Thomas Mitchell Drive a short distance beyond the scene of the accident, but then drove on without attempting to assist the drivers of the two vehicles that had collided.
The defence case was that there was insufficient evidence to support the conclusion that the accident was caused by the applicant’s dangerous driving. The defence raised the alternative hypothesis that Mr Grieg had fallen asleep at the wheel and had veered onto the wrong side of the road, where he collided with Ms Pirpinias’ vehicle. The defence argued that the Crown witnesses did not see the actual collision, and that their description of the applicant’s driving in Docking Street did not support the allegation that the applicant’s entry into the intersection caused Mr Grieg to swerve into the oncoming traffic.
Relevant prosecution evidence[4]
[4]No reference is made to the evidence of Leading Senior Constable Kylie Clarkson, Detective Sergeant Courtis, Dr Hamid Golshan, Natalie Watson, Patrick Williams, Damien Ward and Edward Fergus.
The child witnesses
The Crown relied on the evidence of four child witnesses, Eric Chew, Ryan Crane, Natalie Crane and Hudson Smith, who saw the applicant driving his utility in Docking Street just before the accident. The children’s VATE evidence was recorded very shortly after the accident and some additional evidence-in-chief was called at the trial. The cross-examination of the children sought to demonstrate inconsistencies in the evidence led from them at the trial, and between that evidence and the evidence they had given at a previous trial.
As we explain below, the applicant now argues that the evidence given by these witnesses was so unreliable that it was not open to the jury to find the applicant guilty.
In broad terms, the children’s evidence was that their attention was drawn to the applicant when he stopped to drop off a passenger at 109 Docking Street, approximately 120 metres from the intersection with Thomas Mitchell Drive, and then accused them of spitting on his vehicle.[5] He immediately drove off towards Thomas Mitchell Drive.[6] The children variously described the applicant’s vehicle as speeding, skidding or fish-tailing in Docking Street.
Eric Chew
[5]The distance appears to have been conceded.
[6]Only Hudson Smith failed to mention this incident.
Eric Chew was 12 years old at the time of the accident and 15 years old at the trial. In his VATE he described events involving a utility. He said he saw a utility pull out in Docking Street. The driver had yelled at the children for allegedly spitting on his car:
And then he went out and he did, like, went really fast round the corner … Probably 90 or 100. Then the truck kind of went downwards, the car was at an angle and the car kind of went up on an angle, and they crashed.
Eric Chew then said that he quickly went to the corner, where Hudson Smith and Ryan Crane were already standing; and that the applicant got out of his car, saw what had happened, got back in and drove off. After the interviewer took him through the details of the accident, Eric Chew said that he, Ryan and Natalie Crane, and Hudson Smith were probably at the front of 112 Docking Street when the utility drove off and went on to say:
And then he reversed out, probably 10 metres, reversed down off the road and nearly hit the new sand that just got put in on the road … And then he done a U-turn and went that way where the crash happened, and then he swerved out in front of the cars and then the crash. Then he drove off and then we went to the corner.
He said that the children had begun walking down the street towards Thomas Mitchell Drive. The applicant had reversed having dropped off his passenger. After the applicant had done a U-turn ‘he just floored it down the street’ and ‘snaked the two cars that was coming … the truck thing and the four-wheel drive’. He said that snaking meant ‘cutting them off and stuff … like making them go in all different directions’.
When asked whether he had actually heard or seen anything, he said ‘we seen and hear [sic] the crash’. Asked what happened after the collision, he said that after the cars collided with a big crash he had taken off quickly but Ryan Crane and Hudson Smith got to the corner first. When he got there, he saw the truck and the car ‘really close together, really they were squishing together’. He then referred to the utility driven by the applicant as ‘like a bluey darky green, but it was mostly blue’.
At the trial Eric Chew gave additional evidence-in-chief. He clarified a statement in his VATE that he was walking up Docking Street towards Thomas Mitchell Drive when he saw the applicant’s utility. He said that he had been walking in the other direction at that time but had turned around when one of the children dropped his phone and began walking towards the intersection.[7] He said that he, Ryan Crane and another boy were towards the end of Docking Street near the intersection with Thomas Mitchell Drive.[8]
[7]Early in his VATE he in fact said that another boy had dropped a phone and they had walked back to get it.
[8]He confirmed that his location was as he had marked on a photograph which became Exhibit D.
In cross-examination, Eric Chew said that he had first seen the utility parked outside 109 Docking Street. After the utility drove past them, it ‘slid out at the corner … like he tried to turn the corner fast, but he drifted, like he did a skid. … the back of the ute slid out more’.
Eric Chew said that the utility did not make a noise when it rounded the corner, but that he had heard screeching of tyres when it first took off. Eric Chew said that he did not look for skid marks before the crash happened. It was put to him that in the previous trial he had said he had done so. The relevant passage in cross‑examination was as follows:
Can I just ask something, Eric, did you go down or did you look on the roadway for some skid marks before you heard the crash?---By the time I looked up the road, as soon as I looked up the road, the two cars crashed.
Yes, but had you had a look for the skid marks by then?---That's what I just said, like, when, when, like, I went to look for the skid marks, I went to see if there were any, that's when the two cars crashed, straightaway.
So you were looking at the skid marks because you said you saw some, didn't you?---Yeah.
So you were on the roadway looking at skid marks?---And then the crash happened?---Nuh, the crash happened as soon as he was on the slide.
It was also put to him that he had said in his VATE that the utility had reversed out of the driveway after the passenger had been dropped off and he said he meant it had reversed out of a court at the end of the street. He said that he did not see it park in the driveway at 109 Docking Street.
Eric Chew said he did not see the utility dodge any other cars, but that ‘as soon as [it] slid out, the cars crashed’.
It was put to him that his evidence — that he was ‘pretty sure’ that he, Ryan Crane and another boy, Lincoln, were closest to the corner when the crash occurred — was inconsistent with the statement in his VATE that Hudson Smith and Ryan Crane went to the corner first and then he came to the corner with Lincoln and Natalie Crane.[9] At this point, Eric Chew became agitated and said that he was about 10 steps away from the corner. He said that ‘we seen [sic] it crash’. It was put to him that, in another interview with the police, he had said that he ‘just heard a big bang’ and that this was inconsistent with his evidence at the trial that he had seen the accident. He affirmed his evidence-in-chief that he had seen the collision. He denied having talked to his friends about how the accident had happened after they went home, and said that they were all looking at the same thing.
Ryan Crane
[9]The trial judge also sought to clarify this issue.
In his VATE, Ryan Crane, who was aged 13 at the time of the accident, said that they were walking home down Docking Street and away from Thomas Mitchell Drive when he saw a dark green utility come around the corner and stop. The driver got out and asked if any of them had spat on his car. He said:
And then he sped off, like, he looked like he was quite angry but he sped off and then about, like, probably five seconds after that, he, like, he skidded round, well, I didn’t see it but I heard him skid round the corner and then about two seconds after that I heard a big bang.
Ryan Crane described the applicant’s vehicle as screeching its wheels, ‘wobbling’ a little bit and ‘fishing’ all over the road, after the passenger had been dropped off. He said that the car was ‘speeding fast’ ― ‘extremely fast’ ― and that he thought the driver was ‘an idiot’. Although he had not seen the collision, he had heard the car skid around the corner ‘and then, like, probably two to five seconds later I heard a big bang’. He described the utility as ‘dark green’. Asked how the car had sounded when it went up the road, he said that it was ‘revving,’ that he ‘heard it skidding and drifting around the corner’ and then he heard the bang. Docking Street was dry when the utility drove off but it had started raining very shortly after he heard the noise of the collision. After the accident the children ran to the curve of the road and, after they were told to step back, they sat there talking and thinking about what had happened.
In cross-examination, Ryan Crane said that the children were not together in a group but were spread out. At that time the road was ‘a bit slushy’. It was put to him that the tyres of the car could not have screeched, as he had said in his VATE, because Docking Street had a gravel surface. He said that the car had skidded. Ryan Crane accepted that he had not seen the car go around the corner into Thomas Mitchell Drive but had heard a skidding sound and the sound of the collision very shortly afterwards. He agreed that, at the committal, he had said that he had ‘figured out’ that what must have happened was that the four-wheel drive had swerved to avoid the utility, rather than observing this occur.
Natalie Crane
Natalie Crane, who was 10 years old when she gave her VATE, said that the children were walking back from the vet where they had gone to drop her dog off. A green utility pulled up at a house, a man got out and accused them of spitting on his car. In her VATE she said that:
[the vehicle] sped off and they do, done a skid around the corner. And then the four-wheel drive swerved, and the truck was going this way, the four-wheel drive swerved into the truck, and there was a lot of screaming.
Natalie Crane said she saw the utility do a skid after it had left the driveway and that the vehicle skidded around the corner. The utility had turned left into Thomas Mitchell Drive and ‘then this car was coming forwards and he … went out, and then the car swerved around it … and hit into the truck’. In answer to questions put to her by the police, Natalie Crane said a number of times that the vehicle had skidded around the corner.
In cross-examination, Natalie Crane said the children were walking away from Thomas Mitchell Drive when the applicant asked them if they had spat on his car. The children had got a little further up the street when she heard the big smash. She said she had turned around to see the utility leave the driveway and had seen the utility doing fishtails. She had heard the crash shortly after she heard the skidding. Her VATE was put to her and she said that she had turned around when she heard the smash and had then seen there was a car accident at the end of Docking Street. The applicant relied on the following passage in cross‑examination:
Did you tell the policewoman that you heard it because that's how you knew that the smash had happened?---Yeah.
When you heard it, did that then make you look - turn around and look to see where the noise had come from?---Yeah.
When you turned and looked to see what had made the noise, you saw that there'd been a car accident down the end?---Yeah.
Of Docking Street?---Yeah.
And you could see when you looked that - the Toyota, a white Toyota four-wheel drive?---Yeah.
When you saw it, it looked like it had been in an accident?---Yeah.
When you saw that Toyota four-wheel drive that had been in the accident?---M'mm.
Looking at Photo No 4 that you have there, am I correct if I say this, you could see the four-wheel drive Toyota and you could see that there was something that made it look like it had been in an accident?---Yeah.
But when you were looking at first you couldn't see what the other vehicle was. You couldn't see the truck at that stage?---Yeah.
So when you first hear the smash and you looked down, you knew it was a smash by the noise and everything?---Yeah….
You could tell the Toyota was stopped in the middle of the road and everything?---Yeah.
And so you knew it was a smash, but you and your friends were wondering [if] the Toyota four-wheel drive had hit a tree?---Yeah.
That wasn't just a thought in your head, that's what you and your friends were talking about. People said, someone said, ‘I think it's hit a tree,’ is that correct?---Yeah.
What happened after that is that you and your friends then walked down the street, I suppose like most people because you were curious?---Yeah.
As to what had happened. As you walked down the street you could see more and more the further down the street you got?---Yeah.
She was then asked about the conversation between her and her friends after they heard the crash and the fact that someone had said that the Toyota four-wheel drive might have crashed into a tree. She said:
I suggested that it might have been the ute because of the skidding and everything.
[DEFENCE COUNSEL]: You said it might have been the ute because of the skidding. When you talk about the skidding, are you talking about the skidding on the road as it drove away from the driveway?---And as he went around the corner out of Docking Street.
And around the corner into Thomas Mitchell Drive?---Yeah.
When you say that it's skidding around the corner into Thomas Mitchell Drive, is that because you heard it doing the skidding?---Yeah, and I saw it turn around.
You saw it? What did you see?---I saw it swerve and then - - -
You saw what?
[PROSECUTOR]: Swerve?---I saw the ute swerve into Thomas Mitchell Drive. Then I think the Toyota tried avoiding it.
[DEFENCE COUNSEL]: Yeah?---Avoiding it - hitting it, so it's swerved on to the other side of the road.
The ute swerved into Thomas Mitchell Drive?---Yeah.
By swerved do you mean turned left?---Um yeah, turned left.
And apart from turning left, was there anything else about the way it went into Thomas Mitchell Drive, apart from it had to change direction to the left?----Um it swerved out onto the – like middle of the road and did a skid.
I see?---Because you could hear the squeaking of the tyres and everything so - - -
You could hear the screeching of the tyres, could you?---Yep.
Did the screeching of the tyres go for a long time or a short time?---Um a short time and then it stopped.
Later in cross-examination she agreed that she did not actually see the collision, and said that it was one to two minutes between the time she saw the utility turn the corner and when she heard the collision. She also agreed that she and her friends talked about how the accident occurred and that no-one in the group actually said they saw the collision. In re-examination she again said that she saw the utility swerve around the corner.
Hudson Smith
In his VATE Hudson Smith, then aged 11, said that he, Ryan Crane and Eric Chew were on their bikes on the way home from the vet. He described the ‘green ute’ as dropping someone off, and starting to do ‘burnouts on the road’. Hudson Smith said that ‘five seconds later, I heard a, well, I saw a bang and then I said to my friends, ‘There’s been a car accident’, and we started riding over and we went to the car, the four-wheel drive, to see if they were OK’.
He said that the police had come and he told them he had seen the accident. When asked to clarify what the vehicle did, Hudson Smith said that ‘it just looked like it was doing burnouts ‘cause the wheels were spinning. And then it sped off, like really quick around the corner’. Hudson Smith said that the road could have made the wheels spin, ‘cause it was pretty muddy and I got sprayed a bit by the mud’. He repeated his earlier statement that the wheels on the ute were spinning, but did not recall which way it turned into Thomas Mitchell Drive. He said he had seen the car hit the truck ‘just a little bit’ and he said he thought the driver of the car had ‘let go of the steering wheel. I’m not sure because the car … was on the wrong side of the road at the time’.
In cross-examination Hudson Smith said that the utility’s wheels spun when the driver took off but ‘[w]hen he took the corner I didn’t see him, because you can’t see when he takes the corner because there’s houses’. He said that although he did not see the applicant’s car drive all the way down the street he had heard him take the corner. He explained that in his VATE he had been unable to say whether the car had gone left or right, because his left and right was ‘not very good’, but that the utility was going in the same direction as the four-wheel drive vehicle.[10]
[10]During the trial it became apparent that an answer to that effect had been edited out of the VATE. The jury were informed of that fact, but told not to speculate on what had been edited out.
Other witnesses close to the accident scene
The Crown called Mr Joel Foster, who was driving along Thomas Mitchell Drive shortly before the accident. His evidence did not elucidate the cause of the accident. Ms Jemma Spear, who lived in a unit on Thomas Mitchell Drive directly behind the point where the collision occurred, was also called and said she had not heard any noise before the collision.
Evidence was also given by Mr Shawn Lawler, who was standing on the verandah of the same unit. He was smoking a cigarette and watching the traffic. Mr Lawler gave evidence that he saw the truck driven by Ms Pirpinias on the far side of the road travelling back into Wodonga. His evidence about the moments leading up to the accident, and about the accident itself, was as follows:
And can I just ask you this, when you were out there having a smoke looking around, what was the state of the light?---Um, it was, coming on dark I think, like it was pretty dark.
Were there any street lights on? Or didn't you notice?---I didn't really pay attention, but I think there was cause it was sort of lit up.
All right, could you just tell us what you saw after you first saw the truck, the Isuzu truck with the box on the back heading towards Wodonga, what happened?---Ah, well I seen that, and then, sort of, like turned a little bit and looked back again, and just as I've looked back a Landcruiser four-wheel drive had run into the truck.
And we've heard that that was practically head-on, is that right?---Yeah, pretty much.
How far approximately would you say you were from the point where the collision happened, approximately?---Ah, maybe 30 metres, 40 metres.[11]
All right, now, did you see any other vehicles on the road around that time?---Oh, I seen them going up and down, but, when I seen that I didn't really take any notice of other vehicles then.
Had you taken any notice of any other vehicles before your eyes were following the truck?---No.
[11]According to police evidence the distance between the unit and the collision was 54.9 metres.
He then went on to say:
I understand you've said that you were looking at cars, looking at the traffic, because that was just right in front of you?---Yep.
Is it fair to say this, that when you're there, and not much to do, if you'd heard any screeching of tyres, of car tyres, that you would have looked?---Yep.
You've been asked the question, you didn't hear any screeching?---No I didn't hear any.
All right. Are you able to say this, did you see, did you actually look at these two vehicles, the Isuzu truck and the Toyota Land Cruiser, did you actually look at them before they collided?---Yeah well it was sort of simultaneously, as I looked up they've hit.
So I take it what you're saying is that you're not sure if you actually saw them, or if you saw them before, or as they collided, but about that time?---Yeah.
Am I putting it right?---Yeah I guess so.
That is that you've seen them and they've collided, those two, the looking at them and the colliding, happen about the same time?---Yep.
Perhaps if I can draw a comparison, did you hear the noise that made you look, and then you saw the Isuzu and the Toyota?---No, I seen them hit.
You've seen it hit, all right. I take it you didn't hear any noise - obviously I've asked you about screeching, that caught your attention before the two vehicles collided with each other?---No.
At the time that you see the two vehicles collide with each other did you see any other activity on the road that you in any way connected or associated with the collision?---No.
Not even that you thought might have been associated with the collision?---No.
From where you were standing did you have a view of the intersection where the main road intersected with the side street that's just slightly to the west of where you were?---Um, I can't really remember the streets at all. Like I'd been there once, I wasn't paying attention.
Let me ask you this, the collision between the Isuzu truck and the Toyota four-wheel drive, that occurred at an intersection didn't it?---Um, I'm not too sure. I think it's where it turns into the - like the side street near the houses, in front of the houses.
Sorry, if you could repeat that please?---The street that turns into the houses, off the main road, I think it's there, I think that's about where it was.
Were you able to remember or are you able to remember whether the two vehicles, in the collision, had their lights on?---I'm pretty sure the lights were on.
Mr Lawler’s partner, Ms Sherren Cheng, was inside the unit. She also gave evidence that she did not hear any sound or screeching tyres.
Ms Katrina Evans was driving in the same direction as the truck driven by Ms Pirpinias. She said she saw a four-wheel drive coming towards her that came onto her side of the road by ‘about half a tyre width’ or by ‘a tiny bit’. The four-wheel drive drifted gently but did not swerve sharply. After the four-wheel drive had passed her and she had just gone past Docking Street, she heard the sound of the collision but could not say whether the four-wheel drive vehicle, driven by Mr Grieg, was the one which had passed her. She saw a truck behind her in her rear vision mirror and the collision occurred a split second later, at the intersection between Docking Street and Thomas Mitchell Drive.
Police evidence
Leading Senior Constable Allerdice said he was called to the scene of the accident shortly after it occurred, to take photographs, but did not go there to conduct investigations as to the cause of the accident. He said that Mr Grieg’s vehicle was completely on the wrong side of the road at the time of impact, and there were no marks on the road indicating that its brakes had been applied heavily or that it had swerved or been manoeuvred violently prior to impact. Nor did any scuff or skid marks (meaning rubber on the road) stand out in the area which might have been covered by a vehicle turning from Docking Street into Thomas Mitchell Drive. However, he said that he was not qualified to express a view about whether such marks would necessarily have been present in the case of a tyre screeching on the road surface. He said he did not think the road was wet when he took the photographs.
Constable Owen Clark also inspected the road surface after the accident. At that time it was dry. He said he could see no sign of pre-impact braking, steering or skid marks on Thomas Mitchell Drive. Nor could he see anything of relevance to the investigation on the road surface where Docking Street led to Thomas Mitchell Drive.
Senior Constable Janelle Mehegan, an expert crash reconstructionist, gave evidence that there were no markings on the road indicating that the vehicle driven by Mr Grieg had braked heavily, but said it was possible that the drivers of the colliding vehicles took their feet off the accelerator or applied the brakes, without leaving any marks on the road surface.
Medical evidence
Dr Rebecca McGowan, Mr Grieg’s general practitioner, gave evidence about medical conditions for which she had prescribed medication for Mr Grieg. This included Sifrol, which could cause daytime sleepiness if prescribed in a higher dose or if combined with alcohol. Neither of these factors applied.[12] He was also prescribed a low dose of Endep, to take when needed, for his restless legs syndrome. In 2009 he had been tested for sleep apnoea, but was not suffering from this condition.
[12]This side effect was said to apply to people receiving 500-750 micrograms of the drug, not 125 increasing to 250, as prescribed to Mr Grieg.
At the previous trial, Mr Grieg’s evidence was that he had begun to scale down his medication from about two weeks before the accident and Dr McGowan agreed he had done this under her instructions. She said that he had not given her any history of suddenly falling asleep. When she last saw him, about four months before the accident, he had said that his energy levels were the best they had been for some time and he was feeling well. She considered it ‘very unlikely’ that he would have fallen asleep behind the wheel.
Dr Dimitri Gerostamoulos, a toxicologist, said that on the basis of Mr Grieg’s evidence[13] ― that he had taken Sifrol at about 8:00pm on the evening before the accident ― he would have had a very low level of the drug in his blood 24 hours later. But the blood had not been tested for it. Dr Gerostamoulos considered there was a very low probability that this could have caused sleepiness. No Endep was found in Mr Grieg’s blood sample, which was consistent with his evidence that he had stopped taking it about a week before.
[13]At the previous trial.
In cross-examination, Dr Gerostamoulos conceded that if Mr Grieg had been seriously sleep‑deprived before the accident, a low concentration of Sifrol and/or alcohol could possibly have made him sleepy. However, he did not consider that the small amount of alcohol and the Sifrol Mr Grieg said he had taken the night before were likely to have brought on a sudden onset of sleep.
Other evidence
The Crown also called Mr Walter Cox, one of the applicant’s friends, and Ms Lisa Restall, who was the applicant’s girlfriend at the time of the accident. Both witnesses had seen the applicant on the evening of the accident and noted that he was upset. The Crown had described the accident to both of them in a manner which did not implicate him. It is unnecessary to describe this evidence, except to refer to the cross‑examination of Ms Restall about what she told the police about the applicant’s description of the accident. It was put to her in cross‑examination that she had initially told the police that the applicant had come into the house in a distressed and shaken state and said that an accident had occurred ‘right in front of his face’. As we discuss below, this was consistent with what the applicant told the police in his record of interview. She was cross-examined about her second statement in which she initially repeated this account. Later in that statement she said that the applicant had told her that he had stopped at the end of Docking Street and then turned the corner into Thomas Mitchell Drive. When he saw the crash behind him he had pulled over in Thomas Mitchell Drive.[14] In re-examination Ms Restall said she could not be sure whether the applicant had said the accident occurred in front or behind him.
[14]It is unnecessary to refer to the evidence of a number of other witnesses.
The applicant’s record of interview
The applicant did not call any witnesses, but relied on his record of interview. In that interview he claimed that he stopped at the ‘Give Way’ sign at the intersection between Docking Street and Thomas Mitchell Drive. He ‘looked up and the crash was right in front of me’. After seeing the crash, he ‘just sort of … took off, just to sort of get out of the way of what was going on’. He had turned left into Thomas Mitchell Drive, driven past the accident, and down the road for about 100 metres before stopping again. Seeing people come to the assistance of the people in the accident, he had then driven away. The applicant claimed that he did not stop because a friend died in a car accident a few weeks before and he could not deal with the situation.
The appeal
The applicant submits that it was not open to the jury, on the evidence before them, to find that the applicant’s driving caused the accident which killed Ms Pirpinias and seriously injured Mr Grieg. Acceptance of that submission would also mean that the applicant’s other convictions were also unsafe and unsatisfactory.
The applicant argued that the evidence of the children was the central plank of the Crown case and, on the basis of that evidence, it was not reasonably open to the jury to find the applicant guilty of the relevant offences. There was confusion in the VATEs about whether the children’s account of the accident had been based on direct observation of the accident, and Natalie Crane had withdrawn the suggestion that she had seen it occur, after being cross-examined. Although Eric Chew said that he had actually seen the collision, his evidence was unreliable and internally inconsistent. Although the children had said they had observed the applicant driving around the corner, this was based on a reconstruction reflecting their conversation immediately after the accident.
Eric Chew’s evidence ― that he heard screeching or skidding immediately before the accident ― was said to be undermined by the police evidence that there were no skid marks on the road in Docking Street. None of the other children gave evidence of skidding or screeching. Although Eric Chew said he was looking at skid marks before the accident occurred, he had not referred to them when the police spoke to him immediately after the accident. There was also an inconsistency between his evidence in cross-examination — that he and Ryan Crane were the children standing closest to the corner of Thomas Mitchell Drive — and his VATE statement that Hudson Smith and Ryan Crane were closest to the corner and he was standing further back. His evidence that the children had not discussed the accident immediately after it had occurred was inherently improbable. It was submitted that Eric Chew’s evidence was unreliable and could not have been properly relied upon by the jury.
The applicant made a similar submission about the evidence of Natalie Crane. In her VATE, Natalie Crane said that the driver skidded into Thomas Mitchell Drive and a car swerved around it and hit a truck, but her cross-examination suggested that this was based on reconstruction.
In his conversation with the police officer immediately after the accident, Hudson Smith said he had not seen the collision but had heard it. He said that he was standing next to Eric Chew when the accident occurred. However, he expressed uncertainty about whether the applicant had turned left or right.
Ryan Crane, Natalie Crane and Hudson Smith incorrectly described the vehicle as ‘green’ when it was in fact blue. There were also inconsistencies between the children about where they were standing in Thomas Mitchell Drive when the accident occurred. Their evidence about the way the applicant turned the corner was not reliable and their description of the events preceding the accident was based on their reconstruction of events which they believed had caused the collision.
The applicant also relied on the fact that the police officers did not see any tyre marks in Thomas Mitchell Drive, indicating that Mr Grieg had not braked before the accident occurred. He submitted that, if Mr Grieg had suddenly swerved in order to avoid the applicant’s car, there would have been some evidence of pre-impact braking.
The applicant argued that the evidence of Ms Cheng — that she had not heard any sound of skidding prior to the accident — supported the argument that Mr Grieg had not swerved to avoid colliding with the applicant. Further, Mr Lawler, who had an unobstructed view of Thomas Mitchell Drive, had not seen the applicant driving in a manner which would have forced Mr Grieg to swerve in order to avoid him.
Finally, the applicant relied on the evidence of Ms Evans, who observed Mr Grieg’s car coming towards her shortly before the accident and said that it had veered into her lane. He argued that there was a strong alternative hypothesis, to the effect that Mr Grieg had gradually drifted onto the wrong side of the road after being observed by Ms Evans and had collided with the truck driven by Ms Pirpinias. This might have occurred because Mr Grieg had briefly fallen asleep. The applicant alleges that the evidence presented at the trial was capable of exculpating the applicant and that the guilty verdict was therefore unsafe and unsatisfactory.
Counsel for the Crown submitted that the failure of the children to see the collision was not fatal to its case. The children had given consistent evidence that the applicant was driving erratically shortly before they heard or saw him turning the corner. The crash occurred at the point right on the corner of Docking Street. The evidence of Ms Evans was that, just after she had passed Docking Street, she had heard a bang and had seen a puff of smoke, a split second after she had seen a truck behind her, which was the truck driven by Ms Pirpinias.
Her evidence about the location of the crash was consistent with the photographic evidence of the site of the collision. The evidence was that Mr Grieg’s four-wheel drive vehicle could not have ended at the point of collision merely by drifting on to the wrong side of the lane. In order to end up at the collision point, he must have swerved sharply and the jury were entitled to conclude beyond reasonable doubt that the swerve occurred in order to avoid the applicant.
Ms Evans’s evidence was that Mr Grieg’s car was only about half a tyre width into the oncoming lane and did not support the defence hypothesis that he was swerving across the road when she saw him.
The Crown submitted that it was open to the jury to convict the applicant, and Mr Lawler’s evidence did not require the jury to find the applicant not guilty. Mr Lawler said he did not take any notice of other vehicles on the road at the time of the collision and would not necessarily have been alert to sounds or activities on the road until the crash actually occurred. The evidence of the children supported the conclusion that the applicant was driving dangerously prior to the accident and they maintained their account of their observations of his driving, despite extensive cross‑examination. The children were in a better position than Mr Lawler to observe the applicant’s driving behaviour immediately before the accident and the fact that they may have discussed the cause of the accident shortly after it occurred did not make their evidence inherently unreliable.
The Crown contended that the absence of brake marks on Thomas Mitchell Drive did not require the jury to experience a reasonable doubt as to the applicant’s guilt. Mr Grieg may have taken his foot off the accelerator and may not have had time to brake before he swerved to avoid the applicant. Nor was the verdict unsafe because of the absence of any markings on Docking Street showing that the applicant had swerved or skidded around the corner. At the time of the accident Docking Street was under repair and there was evidence that the road surface was muddy and wet.
Conclusion
In M v The Queen,[15] a plurality of the High Court said that the test to be applied in deciding whether a jury verdict of guilty can be set aside was
whether [the court] thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.[16]
[15](1994) 181 CLR 487, 493.
[16]Ibid (citations omitted).
The case against the applicant was not an overwhelming one. However, the test to be applied in deciding whether a verdict is unsafe is not whether the jury might have entertained a doubt about the applicant’s guilt, but whether, an appellate court having considered all of the evidence, concludes that the jury must have had such a doubt.[17] In our view, it was properly open to the jury to reject the applicant’s statement in his record of interview that he had stopped at the ‘Give Way’ sign at the entrance to Thomas Mitchell Drive. They could also properly conclude, beyond reasonable doubt, that the applicant drove into Thomas Mitchell Drive quickly and without keeping a proper look out, so that he failed to give way to Mr Grieg’s vehicle which was approaching him on the right. This caused the collision which killed Ms Pirpinias and seriously injured Mr Grieg.
[17]Libke v The Queen (2007) 230 CLR 559, 596 (Hayne J); R v Klamo (2008) 18 VR 644.
The children were interviewed by the police very soon after the accident, shortly after they had observed the applicant’s driving. The applicant’s behaviour in Docking Street had attracted their direct attention when he got out of his car and accused them of spitting on it. None of the children observed him stopping at the ‘Give Way’ sign at the end of the street, and Eric Chew, Natalie Crane and Hudson Smith all said they had seen him turn the corner.[18] All of them said that he was driving fast or skidding or fish-tailing as he approached the corner. Ryan Crane was the most impressive witness. Although he conceded that he had not seen the car go around the corner, he was unshaken in his evidence that he had heard a skidding sound as the applicant rounded the corner and the sound of the collision very shortly afterwards. Similarly, Natalie Crane maintained her evidence that she had seen the applicant ’swerve’ around the corner.
[18]Eric Chew said that ‘it slid out at the corner … [c]ause me and Ryan watched it’. Natalie Crane said she saw the car turn the corner, but did not see the collision. Hudson Smith said he saw the car turn the corner but in cross examination agreed that he had seen the car drive down the road to a certain point… but not all the way.
Clearly, there were some inconsistencies between the evidence given by Eric Chew in his VATE, in his later police interview, and at the applicant’s previous trial, but the judge gave an appropriate direction to the jury about the use of prior inconsistent statements for the purposes of assessing a witness’s reliability and credibility. He illustrated that proposition by giving a number of examples from Eric Chew’s evidence.
It was open to the jury, in our view, to consider that these inconsistencies did not cast doubt on Eric Chew’s credibility as to the manner in which the applicant was driving before the accident occurred. They might well have attributed Eric Chew’s confusion about inconsequential details to the three year time gap between the accident and the trial and to his evident lack of verbal sophistication in responding to rigorous cross-examination.
In assessing Eric Chew’s reliability, the jury were reasonably entitled to regard the inconsistency between his statement to the police — that the applicant parked in the driveway of 109 Docking Street — and his evidence at trial, that the applicant parked his car in the street close to or over the driveway outside 109 Docking Street, as being of little significance. The same applied to the inconsistency between that evidence and the evidence of the other children that the applicant had driven into that driveway and reversed out of it. Nor was it of any great moment that at one point Eric Chew said he was standing at the corner of Docking Street along with Ryan Crane, but later conceded that he was a little further back in the street.
The inconsistency between Eric Chew’s initial statement that he had only heard the collision and his later claim that he saw it occur might well have caused the jury to reject his evidence in its entirety, but that rejection would not have been fatal to the Crown case. It was reasonably open to the jury to accept Eric Chew’s evidence about the way the applicant drove in Docking Street and rounded the corner, whilst rejecting his evidence that he had observed the collision occur.[19] The judge directed the jury’s attention to this inconsistency.
[19]Cubillo v The Commonwealth (No 2) (2000) 103 FCR 1, 456 [118].
It would also have been open to the jury to reject Eric Chew’s evidence as a whole, but to accept the account of the other children, particularly Ryan Crane, as to the applicant’s erratic driving in Docking Street and in rounding the corner, and as to the time between the applicant approaching the corner of Docking Street and the occurrence of the collision. All of the children described the crash as occurring very quickly after the applicant turned the corner.
We are not persuaded that the jury must have had a reasonable doubt because of the children’s discussion of the accident immediately after it occurred. The jury were warned to scrutinise the evidence of the children carefully. In their VATE evidence and in cross-examination, each used different terms to describe the applicant’s driving while he was in Docking Street, which counted against any inference of collusion. The jury observed them being cross‑examined about whether they had been influenced by their friends. Based on their general experience of children, the jury were in a position to assess the reliability of the evidence given by these children.
The children gave consistent evidence about the applicant’s driving in Docking Street as he approached and rounded the corner. The internal inconsistencies in the evidence of the three other children, relied upon by the applicant, did not preclude the jury from being satisfied beyond reasonable doubt of the applicant’s guilt. The jury were entitled to consider that the description of the applicant’s car as green, when it was blue (or according to Eric Chew ‘bluey darky green’), was attributable to the fact that the accident occurred at dusk.
No witness saw the applicant’s vehicle in Thomas Mitchell Drive, or Mr Grieg being forced to swerve, but the cause of a motor vehicle accident must often be inferred from previous events. The jury was properly directed that they could only rely on an inference to prove an element of the offence of dangerous driving causing death if they were satisfied as to the facts on which the inference was based and were satisfied beyond reasonable doubt that the inference should be made.
The fact that all of the witnesses to the applicant’s driving before the accident were children is not sufficient of itself to make the verdict unsafe, although some of the submissions made on the applicant’s behalf came close to asserting that proposition. In our view, it was open to the jury to accept the evidence of the children that the applicant was driving erratically in Docking Street shortly before he entered the intersection. They were entitled to infer from this fact that his driving behaviour persisted when he drove into Thomas Mitchell Drive and that he did so too fast and without keeping a proper lookout. They were also entitled to infer that, as a consequence of that behaviour, the accident occurred because Mr Grieg had to swerve to avoid him.
The inference was reinforced by the very short time which elapsed between the children seeing the applicant driving in Docking Street and them hearing the collision, which occurred at the entry and exit point into Docking Street. Further support was provided for this inference by the fact that both the vehicles involved in the collision were travelling below the speed limit and neither driver was affected by alcohol.
Of course, the applicant was not required to establish an alternative explanation for the collision. But there was simply no evidence supporting the defence hypothesis that the accident was caused by Mr Grieg falling asleep at the wheel. Although Mr Grieg did tell the police shortly after the accident that he did not sleep well, he also said that he was feeling well and energetic as he was driving home from work.
The police witnesses agreed that there were no skid marks in Docking Street, and no marks in Thomas Mitchell Drive showing that Mr Grieg had braked before the collision. However, Senior Constable Janelle Mehegan said that such marks would not necessarily be present. Mr Lawler said he was not carefully looking at the surrounding streets or at the other vehicles on Thomas Mitchell Drive before the collision. Nor did Senior Constable Mehegan support the view that Mr Greig’s vehicle continued to veer across the road after it was observed by Ms Evans. When asked whether this was a possibility she said it ‘could be’, but that her view was that Mr Grieg’s vehicle came back to the correct side of the road before the subsequent impact.
The jury were also entitled to have some doubts as to the credibility of the applicant. In his record of interview, he denied having a passenger in his car or dropping anyone off in Docking Street, though this was clearly false. There was, moreover, room for serious doubt about his account that he turned into Thomas Mitchell Drive after seeing the accident occur, ‘just to get out of the way’. Having (in his version) stopped at the intersection, before turning into Thomas Mitchell Drive, he was not ‘in the way’ at all. Entering the carriageway where the accident had just occurred was hardly ‘getting out of the way’.
There were also inconsistencies in Ms Restall’s evidence about what the applicant had told her. In cross-examination Ms Restall explained why she changed her account. But the jury was entitled to consider that the change in Ms Restall’s account of what the applicant told her about seeing the accident was intended to support the applicant’s claim that he had not been involved in it. The judge correctly instructed the members of the jury that they could take prior inconsistent statements into account in assessing the applicant’s and Ms Restall’s credibility.
We were initially concerned that the jury might have reasoned illegitimately that the applicant was guilty of dangerous driving because he did not stop after the accident and gave a number of explanations to friends as to why he did not do so. However, the prosecutor did not rely on consciousness of guilt and the jury were cautioned against using this type of reasoning.
Although the jury might well have acquitted the applicant, we consider it was reasonably open to the jury on the whole of the evidence to find him guilty of the offences. For these reasons, we would grant leave to appeal but dismiss the appeal.
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