Phillip Hartley (a pseudonym)[1] v The Queen - [2020] VSCA 62

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0239

PHILLIP HARTLEY (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES:	BEACH and HARGRAVE JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 March 2020
DATE OF ORDERS:	5 March 2020
DATE OF REASONS:	23 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 62
JUDGMENT APPEALED FROM:	DPP v Hartley (Unreported, County Court of Victoria, Judge Montgomery, 19 September 2017 (conviction))

---

CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of culpable driving causing death following trial – Two heads of culpability alleged: gross negligence based principally on excessive driving speed (plus intoxication); and intoxication rendering driver incapable of having proper control of vehicle – Trial counsel not briefed with, and unaware of, expert report commissioned by trial solicitor challenging Crown case on excessive speed of driving – Whether substantial miscarriage of justice – Expert gave viva voce evidence before Court of Appeal – Evidence important to defence case – No rational forensic reason not to call expert – Alternative basis for conviction unaffected by report not inevitable – Appeal allowed – Retrial directed – Criminal Procedure Act 2009, s 276(1)(c); Crimes Act 1958, ss 318(1) and (2)(b) and (c).

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr L Howson	Tony Danos Lawyers
For the Respondent	Mr C Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

I agree with Croucher AJA.

HARGRAVE JA:

I agree with Croucher AJA.

CROUCHER AJA:

Overview

Despite the extensive safeguards in place for criminal trials, every now and then, things still can go fundamentally wrong in a most unexpected way. In some of these cases, the consequence is a substantial miscarriage of justice, which can be remedied only by setting aside the conviction and directing a new trial. That is what happened in this case.

‘Phillip Hartley’[2] was the driver of a car that struck and killed seventeen-year-old ‘AB’. In September 2017, Mr Hartley was convicted after a trial in the County Court of culpable driving causing the death of AB.[3] He was sentenced to ten years’ imprisonment with a non-parole period of seven years.

[2]In order to avoid any risk of prejudice to the proper administration of justice at any retrial, this judgment has been anonymised by the adoption of a pseudonym for the applicant and initials for some of the witnesses, and some of the details of the case that ordinarily would be included (including the location of the accident) have been omitted.

[3]Contrary to s 318(1) of the Crimes Act 1958 (Vic) (‘the Crimes Act’).

As a result of a series of unfortunate events, it was not until after the conviction and sentence that Mr Hartley’s trial counsel became aware of the existence of an accident reconstruction report that had been commissioned by…

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.

Keep reading for free

Create a free CaseChat account to read Phillip Hartley (a pseudonym)[1] v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] VSCA 62
Decision Date: 23 March 2020

CaseChat Overview and Summary

The case of Phillip Hartley (a pseudonym) v The Queen involved an appeal against the applicant's conviction for culpable driving causing death. The applicant was found guilty following a trial and was convicted on two heads of culpability: gross negligence based on excessive driving speed and intoxication, and intoxication rendering the driver incapable of having proper control of the vehicle. The applicant sought leave to appeal against his conviction, arguing that there had been a substantial miscarriage of justice as his trial counsel was not briefed with, and was unaware of, an expert report commissioned by the trial solicitor that challenged the Crown's case on the excessive speed of driving. The expert gave viva voce evidence before the Court of Appeal, which was important to the defence case.

The legal issues before the court included whether the failure to call the expert as a witness constituted a substantial miscarriage of justice and whether the alternative basis for conviction was unaffected by the expert report. The court found that there was no rational forensic reason for the trial counsel not to call the expert, and that the alternative basis for conviction was not inevitable. The court held that the failure to call the expert witness resulted in a substantial miscarriage of justice and granted the applicant leave to appeal.

The court allowed the appeal and directed a retrial, stating that the failure to call the expert witness had a significant impact on the outcome of the trial. The court emphasised the importance of the expert's evidence in challenging the Crown's case on excessive speed, and found that the failure to call the expert resulted in a substantial miscarriage of justice. The court also noted that the alternative basis for conviction was not inevitable and that the applicant's trial counsel had no rational forensic reason not to call the expert. This case highlights the importance of ensuring that all relevant evidence is properly considered and presented in a criminal trial.

[1] The name has been changed to protect the anonymity of the applicant.

Orders