Parachoniak v The Queen - [2017] VSCA 347

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0009

NICOLE PARACHONIAK Appellant v

THE QUEEN Respondent

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JUDGES:	MAXWELL P, PRIEST and KYROU JJA
WHEREHELD:	MELBOURNE
DATEOFHEARING:	1 November 2017
DATEOFJUDGMENT:	1 November 2017
DATEOF REASONS:	27 November 2017
MEDIUMNEUTRALCITATION:	[2017] VSCA 347
JUDGMENTAPPEALEDFROM:	DPP v Parachoniak (Unreported, County Court of Victoria, Judge Parsons, 11 October 2016 (Conviction))

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CRIMINAL LAW — Appeal — Conviction — Culpable driving causing death and other motor vehicle offences — Evidence — Admissibility — Tendency evidence — Earlier driving behaviour — Evidence inadmissible as tendency evidence — Evidence inadmissible as context evidence — Whether evidence alternatively admissible as going to state of mind -- Whether inference of continuance available — Evidence inadmissible — Appeal allowed — Evidence Act 2008 ss 97(1), 101(2) — Elomar v The Queen (2014) 300 FLR 323 distinguished.

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APPEARANCES: Counsel Solicitors

For the Appellant Mr P Tehan QC

with Mr C T Farrington

Matthew White and

Associates

For the Respondent Mr C B Boyce SC Mr J Cain, Solicitor for

Public Prosecutions

COURT OF APPEAL

459 Lonsdale Street, Melbourne, VIC 3000

MAXWELL P:

I have had the advantage of reading in draft the reasons of Priest JA. I gratefully adopt his Honour’s comprehensive account of the relevant facts and circumstances, and of the arguments raised on the appeal, which enables me to state quite shortly my reasons for joining in the orders made at the conclusion of argument.

As his Honour explains, the prosecution sought to rely on the evidence of Tahuriorangi and two other witnesses as tendency evidence, pursuant to s 97(1) of the Evidence Act 2008. In the alternative, the prosecution contended that the evidence was relevant and admissible ‘as evidence of the accused’s intent at the time of the driving’. The two bases of admissibility were separately identified, and argued, in an outline of submissions provided to the trial judge.

The alternative argument relied on the evidence which Tahuriorangi would give regarding the appellant’s earlier driving, in combination with the text message sent by the appellant to Sunday Naylor, which read in part:
Walk to somewhere I know. … We are drifting. … You will have so much fun.

In combination, this evidence was said to reveal that

the accused was driving on the night of the alleged offence for her entertainment and the entertainment of the other occupants of the vehicle.

The prosecutor’s written submission relied on the following passage from the judgment of Winneke P in R v Scott:
There is no magic about this type of evidence. Whether the lack of care and attention in driving at one point can be logically probative of lack of care and attention at another point must ultimately depend upon whether the two points are so closely related in time, distance and circumstance to allow the tribunal of fact to draw an inference that the manner of driving at the second point was of the same character as the manner of driving at the…

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 Parachoniak v The Queen

Details

AGLC: Parachoniak v The Queen [2017] VSCA 347
Case: [2017] VSCA 347
Decision Date: 27 November 2017

CaseChat Overview and Summary

Parachoniak appealed against his conviction for culpable driving causing death and other related offences, arguing the trial judge had erred in admitting certain evidence. The Crown argued the evidence was relevant to the accused's state of mind at the time of the offence. The High Court considered the admissibility of evidence under the Evidence Act 2008 (Cth). The court examined the nature of the evidence in question, which related to the accused's earlier driving behaviour, and whether it was admissible under the tendency or context exceptions, or alternatively, as evidence going to the accused's state of mind. The court held that the evidence was inadmissible under all possible legal bases. It was not admissible as tendency or context evidence because it did not have substantial probative value and was likely to cause unfair prejudice. The court also held that the evidence was not admissible as going to the accused's state of mind because it did not establish a relevant state of mind at the time of the offence. The court found that the evidence was not capable of supporting an inference of continuance, and therefore, it was not admissible. The appeal was allowed, and the convictions were quashed. The court distinguished Elomar v The Queen, holding that the evidence in this case was distinguishable on the facts and did not meet the requirements for admissibility under the Evidence Act.

Orders