JUDGES:	WARREN, C.J., CHERNOV, NETTLE, NEAVE and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	11 September and 3 November 2006
DATE OF JUDGMENT:	30 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 263

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CRIMINAL LAW – Evidence – Scientific matters and instruments – Blood alcohol concentration – Whether reading obtained with use of preliminary breath test device admissible as evidence of blood alcohol concentration - Road Safety Act 1986, ss.53, 55 and 58.

Criminal law – Culpable driving causing death – Driving under influence of alcohol to such extent as to be incapable of having proper control of a motor vehicle – Whether need for causal connection between alcoholic state of driver and death of victim – R. v. Feketa (1982) 10 A. Crim. R. 287, followed – Crimes Act 1958, ss.318(2)(c) and (d).

Criminal law – Evidence - Flight – Consciousness of guilt – Whether evidence of failure to stop at scene of accident causing death capable of being probative with respect to particular offence of culpable driving as opposed merely to involvement in unlawful activity – Directions to jury – R. v. Woolley (1989) 42 A. Crim. R. 418, considered; R. v. Angiocoli (1994) 87 C.C.C. (3d) 289 and R. v. Peavoy (1997) 117 C.C.C. (3d) 226, not followed; R. v. Heyes (2006) 12 V.R. 401, doubted.

Criminal Law – Evidence – Lies - Consciousness of guilt – Directions to jury – Failure to give Edwards direction – Whether productive of miscarriage of justice.

Criminal Law – Appeal – Proviso – Whether proviso able to be applied where miscarriage of justice caused by failure to give Edwards direction – R. v. Weiss (2005) 80 A.L.J.R. 444, applied – Crimes Act 1958, s.568(1).

Criminal Law – Procedure – Mistake by jury in delivering verdict – Correction of mistake before jury discharged.

Criminal Law – Sentencing – Crown appeal – Culpable driving (one count), failing to stop after motor accident (one count) and failing to render assistance (one count) – Total effective sentence of four years and one month’s imprisonment with non-parole period of 19 months – Head sentence and non-parole period remarkably lenient but not attracting appellate intervention.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. with Mr D.A. Trapnell	Ms A. Cannon, Solicitor for Public Prosecutions
For C.J. Ciantar	Mr P.G. Priest, Q.C. with Ms S. Leighfield	Galbally & O’Bryan

WARREN, C.J.
CHERNOV, J.A.
NETTLE, J.A.,
NEAVE, J.A.
REDLICH, J.A.:

On 18 October 2005 the applicant was arraigned before the County Court at Melbourne on one count of culpable driving, one count of failing to stop after a motor accident and one count of failing to render assistance. He pleaded not guilty to the count of culpable driving although guilty to the other two offences. After a trial which lasted 10 days, he was…

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 R v Ciantar

Details

AGLC: R v Ciantar [2006] VSCA 263
Case: [2006] VSCA 263
Decision Date: 30 November 2006

CaseChat Overview and Summary

The case of R v Ciantar involved a criminal prosecution where the defendant was charged with culpable driving causing death, failing to stop after a motor accident, and failing to render assistance. The matter was heard in the County Court of Victoria, and subsequently appealed to the Court of Appeal. The central issue before the Court was whether certain pieces of evidence were admissible in relation to the charges against the defendant. Specifically, the Court had to determine the admissibility of a blood alcohol concentration reading obtained via a preliminary breath test device, the relevance of the defendant's flight from the scene of the accident, and the admissibility of the defendant's lies regarding his actions post-incident. The Court also considered whether the failure to give an Edwards direction resulted in a miscarriage of justice and if the proviso in the Crimes Act 1958 could be applied in such circumstances.

The Court of Appeal found that the blood alcohol concentration reading was admissible as it was obtained in accordance with the Road Safety Act 1986. The Court held that a causal connection between the defendant's alcoholic state and the death of the victim was not required to satisfy the elements of the offence of culpable driving. The Court held that the evidence of the defendant's flight from the scene of the accident was relevant and admissible as it demonstrated the defendant's consciousness of guilt. However, the Court held that the failure to give an Edwards direction did not result in a miscarriage of justice and the proviso in the Crimes Act 1958 could not be applied in these circumstances. The Court also found that the total effective sentence of four years and one month's imprisonment with a non-parole period of 19 months was remarkably lenient but did not attract appellate intervention.

The Court of Appeal dismissed the defendant's appeal and upheld his convictions on all counts. The Court further held that the jury's mistake in delivering the verdict could be corrected before the jury was discharged. The Court of Appeal's decision highlights the importance of ensuring that evidence is properly admitted and that directions are given to the jury in criminal cases, particularly in cases involving culpable driving causing death.

Orders