Pesa v the Queen
[2011] VSCA 31
•11 February 2011
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 per hour and that the lights were red.
Before this Court the Crown conceded that the informant's evidence of the content of the conversations was hearsay and should not have been admitted by her Honour. The speed at which the applicant's car was travelling and the colour of the lights at the time he entered the intersection were central issues at the trial. Neither witness was given the opportunity to respond to the evidence given by the informant that they had made comments to him relevant to both of those issues, evidence which was inconsistent with the evidence that they themselves had earlier given. On this basis the Crown conceded a miscarriage of justice and that the appeal should be allowed.
The second error of which the applicant complained, and which the respondent conceded, was that her Honour had erred in the direction she gave to the jury as to the difference between the offences of culpable driving and dangerous driving. The applicant submitted that her Honour's directions may have impermissibly suggested that the threshold for a conviction on the count of dangerous driving was lower than that required by the Court in R v De Montero.[1] Her Honour had described the test for dangerous driving as driving that ‘significantly increased the risk of harming others’ rather than driving that created ‘a considerable risk of serious injury or death’,[2] and stated that the test for dangerous driving ‘does not require you to consider whether the driving is deserving of criminal punishment’. The respondent conceded that the directions that her Honour gave were the same as those held to be erroneous by this Court in Gutheridge v The Queen[3] as they did not conform with the principles set out in De Montero.[4] In Gutheridge the Court held that the erroneous directions resulted in a miscarriage of justice requiring the appeal to be allowed, and the respondent conceded that the same result must be produced in the present case.
[1](2009) 198 A Crim R 68.
[2]Ibid 93.
[3](2010) 55 MVR 548 (‘Gutheridge’).
[4](2009) 198 A Crim R 68.
Whether a retrial should be ordered
Given those concessions, I turn to the question whether a retrial should be ordered. The applicant submitted that an order entering an acquittal is the appropriate order which this Court should make. The respondent submitted that, there being no exceptional circumstances to justify the Court exercising its discretion to enter an acquittal, the decision whether to proceed with the trial should be left to the Director of Public Prosecutions and that this Court should make only an order for a new trial.
The Court has a discretionary power to order a new trial where it considers that the interests of justice require it.[5] When determining whether a new trial should be ordered, the Court should first consider whether there was sufficient cogent evidence at the trial to justify a conviction, and if so, whether there are any circumstances which might render it unjust to the accused to make him stand trial again.[6]
[5]DPP (Nauru) v Fowler (1984) 154 CLR 627, 630 (Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ)
[6]Ibid; Kotvas v R[2010] VSCA 309, [72].
The applicant abandoned a ground of appeal that the verdicts were incapable of being supported by the evidence and were unsafe and unsatisfactory. Counsel sought to resist the Crown's contention that a retrial should be ordered on the sole basis that as the applicant had served almost two‑thirds of the minimum term of 18 months fixed by the sentencing judge, an order of acquittal should be entered. He also relied on the fact that the alleged offences occurred nearly four years ago as a factor that was relevant to the exercise of the Court's discretion.
Counsel referred to the case of Gutheridge[7] in which this Court had ordered, following an extensive delay, that a verdict of acquittal should be entered on a count of dangerous driving causing death following a successful appeal against conviction, even though such a verdict was open on the evidence. In that case the applicant had served approximately 23 months of a 30 month minimum term.
[7](2010) 55 MVR 548.
In R v Hasenkamp,[8] a decision referred to by the Court in Gutheridge, Grove JA, sitting on the New South Wales Court of Criminal Appeal in a case where the appellant was only ten days short of having served his minimum term, stated:
It has been a longstanding practice of the Court not to exercise discretion to order a new trial where the sentence imposed as a result of the quashed conviction has been served. I would adopt a similar approach if substantially all of a sentence has been served or substantially all of the custodial portion of any such sentence…It was long ago said that the Court ought not lay down any general proposition to govern each class of case…and my observation as to practice is not intended to suggest that discretion is not to be exercised to meet each case individually. However I am unpersuaded that the interests of justice require a new trial to be had in the present circumstances.[9]
[8](Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Grove, James and Simpson JJ, 24 February 1998).
[9]Ibid (citations omitted).
In R v Nicoletti,[10] Maxwell P (with whom Neave and Bongiorno JJA agreed), citing Hasenkamp, stated that the fact that one appellant had served the whole of the custodial portion of his sentence and the other appellant had served almost the whole of his sentence was ‘highly significant’ to the decision to order that a verdict of acquittal be entered, although, as counsel for the applicant acknowledged, it was not the determinative factor.
[10](2006) 164 A Crim R 81, 91.
In Dyers v The Queen[11] in the joint judgment of Gaudron and Hayden JJ it was said that in circumstances where there is sufficient evidence to support a conviction
it would ordinarily follow that a new trial should be ordered, leaving it to the prosecuting authorities to decide whether to proceed with a new trial. In this case, however, the sentence imposed on the appellant has expired. The decision whether to continue a prosecution is ordinarily a decision for the executive, not the courts. There have, however, been cases where this Court has quashed a conviction, without either ordering a new trial or directing entry of a verdict of acquittal. To make an order that would preclude a new trial would constitute a judicial determination of the proceedings against the appellant otherwise than on trial by jury and in circumstances where it is not held that the evidence adduced at trial required the jury to acquit the appellant. That being so, there should be an order for a new trial despite it being probable that the prosecution will not proceed further.[12]
[11](2002) 210 CLR 285.
[12]Ibid 297 (citations omitted).
In my view the fact that the applicant has served approximately two‑thirds of the non‑parole period does not constitute an exceptional circumstance which would warrant entry of an acquittal. A retrial should, in my view, be ordered.
As there is to be a retrial it is necessary to refer only to one remaining ground of appeal. Under that ground the applicant submitted that the learned trial judge erred in admitting a DVD into evidence that depicted the Crown's version of how the collision had occurred. The reconstruction was created by Acting Sergeant Urquhart, who was appropriately qualified.
The basis upon which counsel for the applicant objected to the use of the DVD, both at trial and before this Court, was that it showed the colour of the traffic light facing the applicant's vehicle to be red. The colour of the light, counsel argued, was not based on scientific data. It was, Acting Sergeant Urquhart admitted, only an assumption. Counsel submitted that the visual depiction of the collision should have been excluded on the basis that it was unfair to the applicant for it to be shown to the jury, as there was an unacceptable risk that the jury would accept it as representing the true situation as to the lights rather than make their own assessment as to the reliability of the prosecution witnesses’ evidence.
The respondent submitted that the DVD was appropriately shown to the jury for the purpose of helping the jury understand the issues and that s 19 of the Crimes (Criminal Trials) Act 1999 warranted such a course. Counsel submitted that any risk the jury would be misled into thinking that the DVD was conclusive evidence as to the colour of the light was removed by the directions that her Honour gave to the jury. Immediately before the DVD was played to the jury, her Honour told the jury members that they ‘must bear in mind that the DVD is not evidence itself but merely
a means that the prosecution is using to present its case’. Furthermore, in charging the jury, her Honour reminded them that
the DVD shows the prosecution case. Mr Urquhart said it is a visual depiction of his opinion. Remember, what you accept and do not accept of expert opinion, is a matter for you members of the jury.
On appeal the applicant took issue with the reasoning employed by her Honour in ruling that the DVD should be admitted. However, in that ruling her Honour stated that the jury must be told that ‘the DVD itself is not evidence but merely an explanation of Mr Urquhart's evidence…with which the defence disagrees.’
Mr Urquhart's evidence in this trial was very similar to evidence that he gave in the trial of R v Farquharson.[13] In that case, in dealing with a very similar objection to his evidence, this Court said:
The second challenge [to the computer simulation] was that it contained assumptions made by Urquhart that were not established by evidence. On appeal, the applicant concentrated upon the assumption that the vehicle started from the left-hand lane. As we have explained above, that assumption was open on the evidence. Once articulated, the question whether that assumption was proven was a matter for the jury as was the weight to give to testimony including the result of the simulation that rested on that assumption.[14]
[13][2009] VSCA 307.
[14]Ibid [141].
Given the directions that should accompany the admission of this evidence there was, in my view, no error in her Honour's ruling that the evidence should be admitted. It would be a matter for the trial judge on a further trial, having regard to the position which the prosecution elects to adopt, whether the same course should be followed.
BUCHANAN JA:
I agree.
MANDIE JA:
I also agree.
BUCHANAN JA:
The orders of the Court will be as follows:
1. The application for leave to appeal against conviction is granted.
2. The appeal is treated as instituted and heard instanter and is allowed.
3. The convictions sustained by the appellant in the court below are quashed and the sentence passed thereon is set aside.
4. There shall be a new trial.
5. The Court directs the appellant to appear at the County Court on 9 March 2011.
6. The appellant is to be admitted to bail on the conditions fixed by Redlich JA on 6 December 2010 save for the requirement to report to the police.
It will be noted in other matters that the Court will grant a certificate to the appellant pursuant to s 14 of the Appeal Costs Act1998.
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