R v Carberry

Case [2014] SASCFC 78

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CARBERRY

[2014] SASCFC 78

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Peek)

18 July 2014

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - CAUSATION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EXPRESSION OF JUDGE'S OWN OPINION - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE

Appeal against conviction.  The defendant was convicted following a trial before Judge and jury of the offences of aggravated causing death by dangerous driving and leaving an accident scene after causing death by careless driving.  The deceased died as a result of injuries that he sustained when he fell from the tray of a utility vehicle driven by the defendant in which the deceased had been travelling.  At the time of his death, the deceased was intoxicated.  There were no eyewitnesses as to what had occurred to cause the deceased to fall from the tray of the vehicle and to come into contact with the roadway.  It was the prosecution case that the defendant drove the vehicle in a stop-start manner, causing the deceased to fall from the tray.  A witness, Ms Andrasic, who lived in close proximity to the location where the deceased was found gave evidence that she heard noises of the car suddenly braking, followed by a crashing sound, followed by a thud, followed by the car accelerating away.  It was the defence case that this evidence strongly supported a reasonable hypothesis consistent with innocence, namely, that the deceased determined to leave the vehicle while it was stationary, that he did so by unlatching the tailgate, and that as he left the vehicle, he fell to the bitumen road surface sustaining the fatal injuries.  Accordingly, the defendant submitted that the prosecution had failed to establish that the defendant’s dangerous driving had caused the death of the deceased. 

Whether the Judge erred in failing to adequately address the evidence of Ms Andrasic in his summing up to the jury. Whether the Judge erred in making comments equating the deceased’s intoxication to the position of a retarded person, a child, or an animal. 

Held per Gray J (David and Peek JJ agreeing) allowing the appeal:

1.  The Judge’s incomplete and inaccurate references to Ms Andrasic’s evidence were wholly inadequate. 

2.  The jury should have received assistance from the Judge in summing up in the use that they might make of Ms Andrasic’s evidence in regard to the issues in the trial, both in respect of the prosecution case and the defence to the charge.

3.  The Judge’s summing up was flawed, giving rise to a risk…

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R v Carberry [2014] SASCFC 78
Case
[2014] SASCFC 78
Decision Date

CaseChat Overview and Summary

The appellant, Anthony Phillip Carberry, appealed his conviction and sentence for aggravated causing death by dangerous driving and leaving an accident scene after causing death by careless driving, contrary to the Criminal Law Consolidation Act 1935 (SA). The charges arose from an incident where Dylon Bradie Fraser died after falling from the tray of the appellant's vehicle. The prosecution alleged the appellant drove dangerously while intoxicated and disqualified, causing the deceased's death, and subsequently failed to stop and report the accident.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the trial judge had misdirected the jury on the issue of causation, particularly concerning the deceased's actions, and whether the judge had adequately presented the defence's case. The appeal also concerned the judge's summing up, specifically whether it conveyed the judge's personal opinion on the evidence and whether the defence's explanation of the deceased's presence in the tray and the appellant's belief about his safety had been properly considered.

The Court found that there was a risk the jury might have understood the trial judge as expressing his own views on how the deceased's intoxication related to causation, rather than leaving that determination to the jury. Furthermore, the judge was found to have erred in failing to adequately address the evidence presented by the defence, particularly regarding the appellant's belief that the deceased was safely secured in the vehicle's tray. The Court concluded that these errors created a real risk of a miscarriage of justice.

Consequently, the Court allowed the appeal, set aside the verdicts of guilty on both counts, and remitted the matter to the District Court for a retrial. The appeal against sentence was not addressed due to the outcome of the conviction appeal.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against conviction and sentence.Background The defendant and appellant, Anthony Phillip Carberry, was charged with the offence of aggravated causing death by dangerous driving contrary to section 19A(1) of the Criminal Law Consolidation Act 1935 (SA). The particulars of the offence included an allegation that, on 8 June 2012, at Roxby Downs, the defendant drove a motor vehicle in a manner which was dangerous to the public and thereby caused the death of Dylon Bradie Fraser. It was alleged as a matter of aggravation that, at the time of the offence, the defendant had a blood alcohol reading of more than 0.08 grams of alcohol per 100 millilitres of blood. It was further alleged that the defendant drove the motor vehicle knowing that he was disqualified from holding or obtaining a driver’s license. The defendant was further charged with the offence of leaving an accident scene after causing death by careless driving contrary to section 19AB(1) of the Criminal Law Consolidation Act. The particulars were that, on 8 June 2012, at Roxby Downs, the defendant drove a motor vehicle without due care or attention thereby causing the death of Dylon Bradie Fraser, and that the defendant failed to satisfy his statutory obligation as a driver by failing to, not more than 90 minutes after the accident, present himself to a police officer at the scene of the accident or at a police station for the purposes of providing particulars of the accident and submitting to any requirement to undergo a test relating to the presence of alcohol and drugs in his blood or oral fluid. The Prosecution Case The prosecution case was that the defendant had been drinking at a tavern at Roxby Downs until closing time. He had had a significant amount of alcohol to drink and was acting in a disinhibited manner. The defendant offered a lift to friends who had also been at the tavern drinking. It was said that he must have been aware that there was a fair chance that any member of the group that night would have been affected by alcohol when they left the tavern. In particular, the defendant was aware that the deceased was probably intoxicated to some degree. The defendant’s vehicle was a twin cab SUV with a tray. Evidence was given at the trial by Christopher Andrew Graham, a mechanic employed by the Major Crash Investigation Unit, who conducted an inspection of the defendant’s vehicle. The vehicle had a lid that closed and a tailgate that could be closed and secured. When both were closed, the tray was completely enclosed. The lid could be opened through the use of a release button located on the outside of the lid. The lid could also be opened from within the tray through the operation of a safety latch on the underside of the lid that was connected to the release button. Once the release button was activated, two gas struts would assist the person opening the lid by reducing the amount of force required to lift the lid to the open position. Once opened, the gas struts would also keep the lid in the open position without it being held up. The tailgate could be opened by the operation of a release lever on the outside of the tailgate. In contrast to the lid, the tailgate could not be opened from within the enclosed tray. However, it would be possible for a person inside the enclosed tray to open the lid, reach over to the outside of the tailgate and operate the release lever to open the tailgate. The tailgate did not have any gas struts. Mr Graham gave evidence that the tailgate was reasonably heavy, and agreed that if a person were to open the tailgate and let it fall under its own weight, it would bang open. Mr Graham gave evidence that he did not find any faults in the locking mechanisms of the lid and the tailgate.

Evidence

Evidence Before The Court

The trial Judge, in his summing up, described the prosecution case as follows:Whether the deceased was locked in or not, he is a 25-year-old man, he is not going to submit like the Christmas turkey to just sitting there in the dark until the end of the journey, he is likely to try and do something. He is highly intoxicated, he is probably clumsy but he is going to do his best to get his head up and see what is going on, at least. That is not a break in the chain of causation, that is entirely what you would expect. That is the reason you do not drive around in the ute with a six-year-old boy, a retarded person, a dog or an intoxicated person. They may fiddle with things, they may be inquisitive, they may be clumsy, they may not appreciate any danger.What happened is just what one would expect to happen: the deceased probably opened the tailgate to look out or it was left open, the accused accelerated rapidly and the deceased fell out of the back of the ute through the now open tailgate. Terribly, unfortunately, he hit his head in the wrong way and he has now died.The accused was driving dangerously because he had a vulnerable person in the back and because his driving was throwing this vulnerable person around, the vulnerable person was going to react in some way, the vulnerable person fell out when the vehicle started suddenly. There is other independent evidence that around about the place where the deceased’s body was found the vehicle did stop and start suddenly. The dangerous driving of the accused with a vulnerable person in the back was a substantial cause of the death of the deceased.At least one circumstance of aggravation was made out, namely that he was driving at in excess of .018 g of alcohol. All the elements have been established beyond reasonable doubt in relation to count 1.[Emphasis added.]The Defence Case The defendant gave evidence in his defence. He acknowledged that he had been drinking at the tavern. When he came to leave, he offered a lift home to two men whom he knew. A woman also took seats in the cabin of his vehicle. The deceased also sought a lift. On the defendant’s case, he was not aware of where his passengers wanted to go, but as Roxby Downs was a small town, he was content to follow their directions to give them lifts to their homes. On his case, his passengers were providing confusing directions, in the process of which he slowed down for pedestrian crossings. On several occasions, he stopped the vehicle to try to get instructions from his passengers as to where they wanted to go. On the defendant’s case, the deceased of his own volition got into the tray of the vehicle. Before leaving the tavern, the defendant closed the tailgate and the lid and, as a consequence, he claimed that the deceased was locked in and safe. The defendant claimed this to be an honest and reasonable belief and that his manner of driving was to be assessed against the basis of this belief. The defendant gave evidence that he remained of the belief that the deceased was safe and did not learn that anything was amiss until he arrived at his final destination. It was the defence case that his manner of driving did not cause the death of the deceased.

Decision

Reasons for decision

GRAY J
I consider that there is a risk that the jury may have understood that the Judge was expressing his own views as to how the evidence of the deceased’s intoxication bore upon the issue of causation. However, having regard to my earlier conclusion that the Judge erred in failing to adequately address the evidence of Ms Andrasic in his summing up, it is unnecessary to reach any ultimate conclusion as to whether the language used by the Judge gave rise to a real risk of a miscarriage of justice. Conclusion I consider that for the above reasons, there is a real risk that a miscarriage of justice has occurred. I would set aside the verdicts of guilty on both counts and remit the matter to the District Court for retrial before a differently constituted court. In these circumstances, there is no need to address the issues raised in relation to the appeal against sentence. DAVID J: I would allow the appeal. I agree with the orders of Gray J. PEEK J: I agree with the orders proposed by Gray J and with his reasons.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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