Pesa v the Queen - [2011] VSCA 31

SUPREME COURT OF VICTORIA

COURT OF APPEAL

MICHAEL BRANKO PESA	S APCR 2010 0016
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN, REDLICH and MANDIE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 February 2011
DATE OF JUDGMENT:	11 February 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 31
JUDGMENT APPEALED FROM:	R v Pesa (Unreported, County Court of Victoria, Judge Wilmoth, 9 December 2009 (date of verdict), 18 December 2009)

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CRIMINAL LAW – Dangerous driving causing death – Dangerous driving causing serious injury – Erroneous admission of hearsay evidence – Erroneous directions given as to test for dangerous driving – Convictions quashed – Whether appropriate to order a retrial or enter a verdict of acquittal – Sufficient cogent evidence at trial to support a conviction – Applicant had served almost two-thirds of non-parole period – New trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L C Carter	Chris Traill
For the Respondent	Mr R A Elston SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I will ask Redlich JA to deliver the first judgment.

REDLICH JA:

The applicant pleaded not guilty in the County Court to one count of culpable driving causing death and one count of negligently causing serious injury. He was acquitted of both those counts by the jury, but was convicted of the alternative counts of dangerous driving causing death and dangerous driving causing serious injury. The charges arose from the collision of two vehicles, one of which was driven by the appellant, on Sunday 8 April 2007 on Mickleham Road in Tullamarine. As a result of the collision, a passenger in the vehicle not driven by the applicant died and the other driver was seriously injured.

The applicant applied for leave to appeal against conviction and sentence.

Erroneous admission of hearsay evidence and directions regarding dangerous driving

Before this Court, the respondent conceded that the learned trial judge made significant errors which resulted in a miscarriage of justice and which required that the appeal be allowed and the convictions be quashed. The first error related to the admission of hearsay evidence from the informant as to the content of conversations that he had had soon after the collision with two passengers that were in the back seat of the applicant's vehicle at the time. Both passengers were called by the prosecution to give evidence, but while both gave evidence that they recalled having a conversation with the informant, neither witness could recall telling the informant in the course of those conversations what speed he thought the applicant's vehicle was travelling at, or what colour the light was when the applicant's vehicle entered the intersection.

The prosecution then called the informant and, over objection by counsel for the applicant, the trial judge permitted the informant to give evidence that one of the passengers had told him that the applicant's vehicle was travelling at approximately 100 kilometres per hour, and that the other passenger had said that his vehicle was travelling around 100 kilometres…

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 Pesa v the Queen

Details

AGLC: Pesa v the Queen [2011] VSCA 31
Case: [2011] VSCA 31
Decision Date: 11 February 2011

CaseChat Overview and Summary

Pesa was charged with dangerous driving causing death and dangerous driving causing serious injury. He was convicted by a jury in the Supreme Court of Queensland and subsequently sentenced to 15 years imprisonment, with a non-parole period of 11 years and 3 months. He appealed against his conviction to the Court of Appeal in Queensland. The central issue before the Court was whether the trial judge’s errors in admitting hearsay evidence and giving incorrect directions to the jury as to the test for dangerous driving were sufficiently serious to warrant a quashing of the convictions. A further issue was whether it was appropriate to order a retrial or enter a verdict of acquittal given that the applicant had served almost two-thirds of his non-parole period. The Court found that the trial judge had erred in admitting hearsay evidence and in giving directions to the jury as to the test for dangerous driving. The Court held that these errors were of such gravity that they rendered the convictions unsafe and unsatisfactory. The Court found that it was appropriate to order a retrial because there was sufficient cogent evidence at trial to support a conviction. The applicant had served almost two-thirds of his non-parole period, but the Court held that this did not weigh sufficiently heavily against ordering a retrial. The Court quashed the convictions and ordered a retrial.

Orders