R v Carberry

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 of miscarriage of justice.
4. There was no evidence in the trial that the deceased’s state of intoxication was such as would allow him to be equated to a child, to the mentally retarded, or to a dog. The evidence did not permit such emotive expressions or analogies to be fairly used. They were unhelpful, liable to distract and had the capacity to mislead.
5. It is unnecessary to reach an ultimate conclusion as to whether the language used by the Judge gave rise to a real risk of a miscarriage of justice.
5. Verdicts of guilty on both counts set aside.
6. Matter remitted to the District Court for a retrial before a differently constituted court.
Criminal Law Consolidation Act 1935 (SA) s 19A(1) and s 19AB(1), referred to.
The Queen v Perks (1986) 43 SASR 112, considered.

R v CARBERRY
[2014] SASCFC 78
Court of Criminal Appeal: Gray, David and Peek JJ
GRAY J.

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.
Initially, the defendant and four others entered the cabin occupying the five seats. The deceased climbed into the tray. One person left the vehicle, leaving an empty seat. The deceased turned down an offer of using the empty seat and instead remained in the tray. The witnesses called by the prosecution, including the other passengers in the vehicle, were unable to recall whether the lid and the tailgate were closed after the deceased entered the tray. The defendant then drove from the tavern through the general township of Roxby Downs to a home at 70 Pioneer Drive. On the prosecution case, it was a short distance, about one minute’s drive away. There was a dispute about the manner of driving as the vehicle drove along Pioneer Drive. On the prosecution case, a stop-start process was undertaken. Eventually, the vehicle arrived at 70 Pioneer Drive and at that time the defendant and his three cabin passengers became aware that the deceased was no longer in the tray. The tailgate was down and the lid open. They returned along the road and found the deceased lying on the roadway about 50 metres short of 70 Pioneer Drive. The tailgate of the vehicle was down and the lid was closed. Evidence led by the prosecution from a number of residents on Pioneer Drive confirmed that it was a stop-start trip. On the prosecution case, there was no direct evidence as to what had caused the deceased to be on the road.
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.
The Judge’s summary of the defence case included the following:
No-one really knows how the deceased came to be out of the utility. He may have simply got out on his own when the vehicle was near home, on one of those stops, might have thought ‘I am home or I am near enough to home’, got out himself and fallen over and hurt himself not because the vehicle has taken off quickly but because he is already out of the vehicle and he is drunk and he is clumsy and he falls over.
If that happened, one could hardly say the driving of the accused was responsible for that if he is out of the car about to walk home and he has just fallen over.
No-one really knows how he came to be outside of the utility. He may have been doing something stupid in the utility of his own accord, something incredibly stupid that takes it outside of the chain of causation.
So essentially the defence is disputing the dangerous driving and they are saying ‘I have an honest belief and that has not been disproved beyond reasonable doubt. I have an honest belief that he is in the ute safe. And, in any event, it has not been proved that my driving caused the death of the deceased’. You should not be satisfied beyond reasonable doubt that the driving was dangerous, that means you cannot convict on count 1, or the alternative of driving in a manner dangerous. You could not be satisfied beyond reasonable doubt that his driving was a substantial cause of the death of the deceased, that means you could not return a verdict of count 1 or count 2, or the first alternative to count 1 of aggravated driving without due care with the circumstance of aggravation that the driving caused the death of the deceased.
The Verdicts
At the conclusion of the trial, a verdict of guilty of the offence of causing death by dangerous driving was returned by the jury. In relation to that offence, the jury concluded that the circumstance of aggravation that at the time of the offence there was present in the blood of the defendant a concentration of more than 0.08 grams of alcohol per 100 millilitres of blood had been proved. The jury further concluded that the circumstance of aggravation that at the time of the offence the defendant was driving the vehicle knowing that he was disqualified from holding or obtaining a driver’s licence had not been proved.
The jury also returned a verdict of guilty in respect of the charge of leaving an accident scene after causing death by careless driving.
The Appeal
Submissions
The primary submission advanced on the appeal was that the verdict was unreasonable and could not be supported having regard to the evidence. It was submitted that the verdict of aggravated causing death by dangerous driving was unsafe and unsatisfactory. It was complained that the Judge erred in his directions to the jury on the topic of causation. Finally, it was said that the Judge had imposed his own views of the facts in such a way as to overawe the jury or, alternatively, to convey the impression that there was really nothing for them to decide.
The Director submitted that the verdicts of guilty were open to the jury on the evidence and that there had been no misdirection by the Judge or any imposition of the Judge’s own views in a way that overawed the jury.
A Reasonable Hypothesis Consistent With Innocence
As discussed above, the defendant and his cabin passengers were unaware that the deceased had in some way left or got out of the tray of the vehicle until they stopped at 70 Pioneer Drive. There was no eyewitness as to what had occurred to the deceased. However, there was evidence from which inferences could be drawn. Observations made by investigating police officers confirmed the position of the deceased on the road and its proximity to neighbouring premises. Medical evidence as to the nature and extent of injuries sustained had been led by the prosecution. A number of residents in properties along the path travelled by the defendant gave evidence about hearing the vehicle and hearing noises consistent with a stop-start trip.
Anna Andrasic, a resident in close proximity to the position where the deceased was found on the road, gave evidence of hearing a vehicle stopping, a crash or metallic sound, followed by the sound of a thud and then the sound of a vehicle accelerating away. On the defence case, this evidence was consistent with the stopping of the defendant’s vehicle, the opening of the tailgate, then the body of the deceased falling to the ground, followed by the noise of the defendant’s vehicle starting and departing. This evidence was central to the defence submissions, but received little attention during the summing up. It was contended by the defendant on the appeal that the failure of the Judge to remind the jury of the substance of the evidence and, in particular, its relevance to the issues in the trial, led to a risk of a miscarriage of justice. It was said that, because of the significance of this evidence, this failure by the Judge would, of itself, lead to a setting aside of the convictions.
Ms Andrasic gave evidence of having been awake in bed in a room close to Pioneer Drive. She became aware of the noise of a motor vehicle coming in her direction from the west. She described the noise when she first heard it as an engine noise, operating at an unnecessarily fast speed, and as the sort of noise when a driver’s foot is pressed hard on the accelerator. She next heard the noise of sudden braking but without the squealing of brakes. Then, after a pause, she heard the noise of the vehicle taking off again, accelerating, and then the noise of braking. She estimated that she first heard the vehicle near the turn off at Arcoona Street in Pioneer Drive. The second time she heard the vehicle, that is the braking and acceleration, was in the vicinity of an intersection of Pioneer Drive and Mirra Street.
Ms Andrasic heard the vehicle a third time, which she described as being “just past my place around about Hamilton Court”. Ms Andrasic’s home was very close to the position of the body of the deceased when discovered on the roadway. She described the noise of the vehicle driving past her home and on this occasion Ms Andrasic heard the vehicle braking and coming to a sudden stop. She then heard a crash, a metal sound, followed by a noise like a thud. It is convenient to set out the text of relevant extracts from Ms Andrasic’s evidence in chief:
Q.    Just describe the noise you heard on the third occasion.
A.Well, on the third occasion there was the same sudden stopping and braking but then there was like a crashing sound and then following that there was like a thud.
Q.You heard the acceleration, what point did you hear the crashing and the thud sound in relation to accelerating and braking.
A.    Well, there was like the accelerating.
Q.    Yes.
A.    The sudden braking.
Q.    Yes.
A.    And then there was like a crash sound. …
…
Q.Can you describe the crash sound, what it sounded like, what sort of thing or things it sounded like. Can you help us there.
…
A.    It was like a metal sound.
Q.      A metal sound.
A.Yeah, a metal sound. It didn't sound like a crash, like a side-swipe to a car, but a metal sound, but I wasn't clear exactly what it was.
Q.Then you described a thud sound, how do you describe that as different to a crashing sound.
A.    I don't know, it was just different, it was just -
Q.    Was it a metallic sound.
A.    No, not a metallic sound, no, just a thud, an unusual sort of - I just.
Q.    Like something non-metallic.
A.    Yeah, non-metallic, like a soft sort thud sort of sound.
Q.Can I pick it up from the sound you just described, the thud sound, what did you hear after that.
A.    It was just quiet for a while, then the vehicle took off again.
Q.    Did the vehicle take off - anything about the sound of it taking off.
A.    Similar to before, just accelerated and took off again.
[Emphasis added.]

In cross-examination, Ms Andrasic confirmed her evidence in chief:
Q.You told the members of the jury that after the braking you then hear - I think you said - a crash and a thud.
A.    Yes.
Q.    You've told us that you, in effect, are explaining two sounds you heard, yep.
A.    Yeah.
Q.    One just, to use your words, was a metal sound.
A.    Yep.
Q.    And you heard that first.
A.      Yes.
Q.      And after that you think you heard some sort of thud.
A.      Yes.
Q.      A different sound to a metal sound.
A.      Yes.
Q.      After you hear that you then hear the car accelerate off.
A.      That's correct.
[Emphasis added.]
In the course of cross-examination, Ms Andrasic gave evidence that she heard the car stop finally further down the road and she agreed that this might have been near 70 Pioneer Drive.
The position of the body of the deceased on the roadway was not in dispute. There was evidence of witnesses attending the deceased in that general location, but more particularly there was evidence of blood on the road surface, which provided clear evidence of where the deceased’s head had come into contact with the road. It was the defence case that the noises heard by Ms Andrasic were, first, the vehicle braking, then the metallic sound of the tailgate, having been opened by the deceased, freefalling and crashing, and then, after the deceased had left the vehicle or as he was leaving the vehicle, the noise of the thump that follows was the deceased striking the ground. It was the defence case that this evidence strongly supported a reasonable hypothesis consistent with innocence. That hypothesis was that the deceased determined to leave the vehicle while it was stationary in the vicinity of Ms Andrasic’s home, that he did so by unlatching the tailgate, leaving it to freefall causing a metallic noise, and, as he left or after he left the vehicle, he fell to the bitumen road surface sustaining the fatal injury to his head. This, it was contended, was the thud heard by Ms Andrasic and it was some moments after the thud that Ms Andrasic heard the vehicle accelerate away.
It was said to be relevant in considering this hypothesis to also have regard to the state of intoxication of the deceased. It was agreed that his blood alcohol concentration was 0.129 grams of alcohol per 100 millilitres of blood when a reading was taken at the hospital some time later.
It was emphasised on the appeal that there was no reason to doubt the credibility and the reliability of Ms Andrasic’s evidence. It was contended that the inferences discussed above were plainly open to be drawn from her evidence. This Court’s attention was also drawn to the evidence in the trial that the opening of the tailgate and it freefalling to its opened position would cause the metallic or crashing sound described by Ms Andrasic. The Court’s attention was further drawn to the medical evidence concerning what were said to be the relatively contained injuries to the deceased.
The evidence of Ms Andrasic and the relevance of it to the issues before the jury were briefly addressed by the prosecutor in his final submissions. The prosecution address proceeded on the basis that the vehicle Ms Andrasic referred to as making the noises was the vehicle of the defendant. The prosecution also accepted that the metallic sound followed by a thud did suggest that it was at this point that the deceased left the vehicle. The prosecution also accepted that the vehicle accelerated away after the noise of the thud. As the prosecutor put it:
What does she say about the third time braking and accelerating? What does she say about that? 'Same sudden stopping and braking, then there was like a crushing sound and then followed by a thud'.
Crushing sound, metal sound, thud sound, non-metallic. I suggest that was the point where Mr Fraser came out of that ute.
She said it went quiet for a while - we know that, don't we? 'Then it accelerated as before'. So after Mr Fraser had come out they'd gone.
[Emphasis added.]
Defence counsel, in the course of his final address, referred to Ms Andrasic’s evidence and said, “So if Ms Andrasic was right and the prosecution put her forward and say you should rely on her and, frankly, so do I.” Counsel returned to Ms Andrasic’s evidence later in the summing up, noting that she gave evidence of having heard the thud at some time prior to the vehicle accelerating away. Counsel suggested that this evidence was consistent with the deceased having opened the tailgate and exited the tray at a time when the car was stationary. It was said that the acceleration of the vehicle may have had nothing to do with the deceased’s death. Counsel suggested that if this version of events remained reasonably open, then the prosecution had failed to prove that the dangerous driving was the substantial cause of death.
The Judge in summing up, as discussed above, made a possible brief reference to the evidence of Ms Andrasic. His Honour did not refer to her by name, but did make the following apparent reference to her evidence when discussing the defence case:
Ms Thomas, who was the pedestrian walking and passed by the car did not notice anything odd about the ute like the lid up or the tailgate open. The deceased must have intervened himself and opened the tailgate, that is the only explanation for how the tailgate got open. That may have been the metallic noise that one resident said he heard before the thud. For most of the trip the tailgate must have been up. If the metallic noise was the tailgate coming down it must have been up for all the trip before that.
[Emphasis added.]
In this passage of the summing up, the Judge was summarising the defence case. This would appear to be an oblique reference to the evidence of Ms Andrasic. The Judge appears to have made a slip when he referred to the resident that heard the metallic sound as “he”. The Judge was correct to make reference to the metallic noise as being consistent with the opening of the tailgate.
In my view, this was a wholly inadequate treatment of important evidence in the case. Both parties accepted Ms Andrasic as an apparently credible and reliable witness. Both relied on her evidence in the course of their final submissions. Given the proximity of her home to the position at which the deceased fell to the road, her evidence, although only of the hearing of noises, was cogent evidence. Her evidence allowed the clear inference to be drawn that the deceased left the vehicle and fell to the road at a time when the vehicle was stationary. Her evidence both in chief and in cross-examination is clear; a metallic or crashing sound followed by a thud, followed by the sound of acceleration. The drawing of such inferences by the jury would provide substantial support for the proposition that the prosecution had not excluded a reasonable hypothesis consistent with innocence, namely, that the manner of the defendant’s driving was not a substantial cause of the death of the deceased.
In these circumstances, the Judge, to my mind, was required to address the evidence of Ms Andrasic in some detail. The Judge was required to inform the jury of the inferences that they may choose to draw from that evidence, the relevance of those inferences to the issues in the case and, in particular, their relevance to the jury’s consideration of whether the prosecution had excluded the earlier referred to hypothesis as a reasonable hypothesis. By way of contrast, the only allusion made by the Judge to Ms Andrasic’s evidence was in the brief passage referred to above where he incorrectly described her gender and where that reference was only in the context of his summarising the defence case.
In Perks, King CJ discussed the obligation of a judge to sum up on the substance of the defence case:[1]
Each judge has his own style of summing up. It is always possible to criticise the omission of reference to some piece of evidence or argument relevant to a defence. But it is no part of the duty of the trial judge to argue the case for the defence any more than it is his function to argue the case for the prosecution. What is required is that the judge put the substance of the defence to the jury and explain its bearing upon the elements of the charge. Generally an adequate presentation of the defence will require some reference to the version of the critical incidents given by an accused person who has given evidence. In the more complex cases, it may also require some reference to other evidence and the bearing of that evidence upon the issues of the case and the defence to the charge. Just how far it is necessary to go must depend upon the circumstances of each case and upon the judgment of the trial judge. In the present case the learned Judge explained the defences of self-defence and provocation to the jury. He quoted at length the appellant's version of what occurred, both in the form of what the appellant said to the police and what he said in the witness box. He referred to a number of leading arguments put by counsel for the defence. The points in favour of the defence and the evidence which tended to support them were put fully and clearly by counsel for the defence and the judge was not required to repeat counsel's arguments. I think that the defence was adequately and fairly put to the jury.
[1] The Queen v Perks (1986) 43 SASR 112, 116-7.
Aspects of this trial were unusual and complex. As King CJ pointed out, such a case may require reference to evidence from witnesses other than the defendant bearing upon issues of the case and the defence to the charge. In the present trial, the need to address Ms Andrasic’s evidence during the course of summing up was paramount. The defendant was unaware until after he had ceased driving that the deceased was no longer in the back of the vehicle. He had no knowledge as to how the deceased came to be on the roadway. Ms Andrasic’s evidence was the only evidence from which inferences could be drawn.
There remains one further consideration on this topic. Earlier in these reasons, reference has been made to the Judge’s description of the prosecution case. It is to be recalled that the Judge described the prosecution surmise as follows:
… [T]he 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.
This proffered analysis by the prosecution is unsupported by any direct evidence. At most, the evidence could be said to leave open the inference that these events may have occurred in the manner described by the Judge. However, the scenario could be fairly described, in my view, as speculation. This analysis of the prosecution case is in direct conflict with the evidence of Ms Andrasic, as discussed above. It is to be recalled that she described hearing close to her home a vehicle come to a stop, then a crash, later a thud and then later still the vehicle accelerating away and then coming to a stop in the vicinity of 70 Pioneer Drive. There can be little doubt that she was hearing the noises made by the defendant’s vehicle. There can be little doubt that the vehicle stopped in the vicinity of her home. There can be little doubt that the metallic noise or the crash came from the defendant’s vehicle. The noise of the thud is consistent with the body of the deceased coming into contact with the bitumen. As earlier discussed, this was evidence led by the prosecution and confirmed in cross-examination. There was no suggestion by either counsel that the evidence was other than credible and reliable. This evidence directly conflicts with the prosecution analysis, as discussed above.
In my view, the Judge was obliged to point to these difficulties confronting the prosecution analysis. The jury should have been told that if they accepted Ms Andrasic’s evidence and considered that it was to the effect as summarised above, then the prosecution analysis was directly contradicted by the evidence and, in the absence of any other evidence to support the analysis, they should have been directed that it was no more than a surmise or speculation. Instead, the Judge simply left it open to the jury to proceed to a finding of guilt based on the prosecution analysis. In these circumstances, the Judge’s summing up to the jury was flawed, giving rise to a risk of a miscarriage of justice.
In summary, the Judge’s incomplete and inaccurate references to Ms Andrasic’s evidence were wholly inadequate. The jury should have received assistance from the Judge in summing up in the use that they might make of her evidence in regard to the issues in the trial, both in respect of the prosecution case and the defence to the charges.
Inappropriate Expressions
It is to be accepted that a Judge is entitled to sum up to the jury in language considered appropriate in the circumstances of the case. Frequently, judges make use of analogies, examples, rhetorical questions or other techniques to illustrate the point being made to the jury. Examples abound. However, there is always a danger that in using examples and analogies, a situation may arise where that use could be counterproductive and misleading. It was the defence submission that language used by the Judge during the summing up had the effect of revealing the Judge’s own views and was prejudicial.
On the appeal, attention was drawn to the following observations made by the Judge during his summing up:
Ladies and gentlemen, would you drive around town with your neighbour’s six-year-old son in the back of a ute? If not, why not? Would you drive around town with your 30-year-old mentally retarded brother in the back of the ute? If not, why not? Would you drive around town at about 50 km/h with your dog in the back of the ute if the dog had not been trained to sit in the back of the ute? Why not?
Is it because none of the three things that I mentioned - the kid, the mentally retarded person, the dog - could be trusted to just sit safely and do nothing? You can foresee that they might do something silly or dangerous. If you would not do it with your neighbour’s six-year-old, you would not do it with your mentally retarded brother and you would not do it with your dog, why would you do it with the drunk fellow that you had met at the pub who was intoxicated to a degree you are not sure about?
If you would not do it with these people and the dog driving normally would you do it with these people and the dog starting and stopping to bounce them around in the back? The Crown says ‘No, you would not because it is dangerous’. …
The defendant submitted that, in using those expression, the Judge was summarising the prosecution position in a manner in which it was never put by the prosecution. The defendant further submitted that the comments revealed the Judge’s own views and were prejudicial. It was argued that the likening of the deceased to a 30 year old retarded person or a six year old child were unhelpful examples and unlikely to assist the jury in determining the issue. It was contended that the jury may have understood the Judge to be inviting them to treat the deceased as being in the same position as a neighbour’s six year old son, a mentally retarded brother, or a dog. It was suggested that the Judge had injected his own views into the issue of causation, conveying the impression that there was really no issue to decide in relation to causation.
There was no evidence in the trial that the deceased’s state of intoxication was such as would allow him to be equated to a child, to the mentally retarded, or to a dog. The deceased had a blood alcohol reading of 0.129 grams of alcohol per 100 millilitres of blood when tested some time later at the hospital. It may be accepted that the deceased’s faculties would have been impaired to some degree. However, to equate his position to that of the mentally retarded was not open on the evidence, was inappropriate and was liable to deflect the jury from a fair and balanced consideration of the evidence and, in particular, the evidence relating to the issue of causation. The same can be said equally of the comparison to a six year old child or a dog. It is significant that the three expressions chosen by the Judge involved those with an inability to make a decision as to whether to travel and where to travel in a vehicle. The deceased, on the other hand, was quite capable of making those choices and did so. One cannot conclude that the deceased was not able to make the decision to leave the vehicle by lowering the tailgate when the vehicle had stopped and to leave the vehicle while it remained stationary.
On the topic of causation the Judge said:
Whether the deceased was locked in or not he was a 25-year-old man he’s not going to submit like the Christmas turkey to just sitting there in the dark until the end of the journey, he’s likely to do something. He’s highly intoxicated, he’s probably clumsy but he’s going to do his best to get his head up and see what’s going on, at least. That is not a break in the chain of causation, that is entirely would you would expect. There is a reason you do not drive around in the ute with a 6-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.
To my mind, it is difficult to understand why the Judge would liken the deceased to a Christmas turkey. To use that expression at the same time as the reference to the six year old child, the retarded person and the dog may be understood to emphasise the lack of capacity of those persons and those animals to make any meaningful decision about their circumstances. The evidence did not permit such emotive expressions or analogies to be fairly used. They were unhelpful, liable to distract and had the capacity to mislead.
Counsel for the Director acknowledged that the terminology used by the Judge differed to that used by the prosecutor. A review of the prosecutor’s address reveals that he did not at any time use the examples that were ultimately used by the Judge. The Director conceded that the Judge’s language was intemperate, but contended that the jury would have understood that the Judge was putting the prosecution case rather than expressing his own views.
Little reference was made by the prosecutor to the state of intoxication of the deceased during his summing up. Reference was made to his blood alcohol reading of 0.129, but the prosecutor left to the jury the question of the extent of the intoxication of the deceased. More specifically, the prosecutor did not suggest that the deceased’s incapacity as a result of intoxication could be equated to a person suffering from mental retardation, a Christmas turkey, a dog, or a six year old child.
I do not accept the submission that the jury would have understood that the Judge was doing no more than summarising the prosecution case in the impugned paragraphs.
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.

[2014] SASCFC 78

18 July 2014

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Causation

Charge

Appeal