R v Clark
[2005] VSCA 294
•9 December 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 68 of 2005
| THE QUEEN |
| v. |
| ANDREW PETER CLARK |
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JUDGES: | MAXWELL, P., CHARLES and NETTLE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 November 2005 | |
DATE OF JUDGMENT: | 9 December 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 294 | 1ST Revision 13TH December 2005 |
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Criminal Law – Appeal against conviction – Evidence – Admissibility of hearsay evidence – Waiver – Pre-trial procedure – Whether right to object to inadmissible evidence waived by defence counsel – Whether ample admissible evidence to uphold a conviction – Whether witness should have been recalled at end of trial – Application of proviso – No miscarriage of justice – Appeal dismissed.
Criminal Law – Appeal against sentence – Relevant matters taken into account – No manifest excess – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle Q.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions. |
| For the Applicant | No appearance. Submissions prepared by Mr O.P. Holdenson Q.C. | Tony Hargreaves & Partners. |
MAXWELL, P.:
This is an application for leave to appeal against conviction, and for leave to appeal against sentence. On 16 February 2005, the applicant was convicted on one count of negligently causing serious injury, contrary to s.24 of the Crimes Act 1958, and one count of having failed to render assistance immediately following an accident involving a motor vehicle of which he was the driver, in which a person suffered serious injuries, contrary to s.61(3) of the Road Safety Act 1986. On the first count, he was sentenced to imprisonment for two years. On the second count, he was sentenced to imprisonment for one year, of which six months was to be served cumulatively upon the sentence on the first count, giving a total effective sentence of imprisonment of two years and six months. One year and three months of that sentence was to be served immediately, the balance of 15 months being suspended for three years.
The applicant filed a detailed outline of submissions, prepared by Mr Holdenson, QC. The introductory note to the outline stated:
“This Outline of Submissions constitutes the Applicant’s case and argument in writing for the purposes of s.572 of the Crimes Act 1958 and Order 2.28.2 of Chapter VI – Supreme Court (Criminal Procedure) Rules, 1998.
No oral submissions will be made either by or on behalf of the Applicant on this Application.”
As the outline correctly stated, an application for leave to appeal may be dealt with on the papers. In this case, as previously in this Court,[1] the applications were heard in open court. The Court announced that written submissions had been received from the applicant, prepared by senior counsel, and from senior counsel for the Crown. Counsel for the Crown was invited to supplement his outline with oral argument, to the extent necessary. After hearing those submissions, the Court reserved its decision.
[1]See, for example, R v MG [2004] VSCA 239 (17 December 2004) at [62].
In my opinion, for the reasons which follow, each of the applications must be refused. I deal with the grounds in the order in which they appear in the outline filed on behalf of the applicant.
The conviction appeal
Ground 2
In relation to the count of negligently causing serious injury, the prosecution called as an expert witness Sergeant P Bellion. Sergeant Bellion gave evidence that the likely speed of the applicant’s vehicle on impact with the stationary vehicle - that being the impact which caused the injury - was 88 kilometres per hour. This was the “most probable” speed within a range of 81-95 kilometres per hour. Sergeant Bellion’s expert opinion was based, in part, on photographs taken and measurements made by another person, a Senior Constable Oldfield. Senior Constable Oldfield had taken detailed measurements of the height, length and width of the respective vehicles, as damaged. These measurements enabled a comparison to be made with the original condition of the vehicles, in order to determine the amount of deformation resulting from the collision.
The submission for the applicant was as follows:
“●Oldfield did not give evidence in the trial of the applicant. There was no explanation given in the evidence as to the whereabouts of Oldfield; nor was any explanation given concerning the failure of the Crown to call Oldfield to give evidence.
●It is trite law that evidence of opinion is inadmissible (or of no value whatsoever) if the facts upon which the opinion is based are not proved by admissible evidence.
●In this case, by reason of the failure of the Crown to call Oldfield to give evidence, there was no admissible evidence led of the measurements taken or done by Oldfield. This evidence was inadmissible hearsay.
●In these circumstances, the evidence of opinion of the likely impact speed given by Bellion was inadmissible.”
In my opinion, this ground must fail. As the applicant correctly points out, it is clear law that where the opinion of an expert witness is based on facts observed or ascertained by others, there will be unfair prejudice to the accused if the expert evidence is admitted, over objection, without the evidence of those other persons.[2] The objection, once taken, is irresistible. The absence of an evidentiary foundation for the expert opinion means that it should not be put before the jury.[3]
[2]R v Sing (2002) 54 NSWLR 31.
[3]The Queen v Ryan [2002] VSCA 176 (1 November 2002) at [9].
What makes those propositions inapplicable to the present case, however, is that the defence took no objection to the evidence of Sergeant Bellion until after the defence case had closed. At that point, the submission was made that the evidence as to the likely speed of the applicant’s vehicle should be excluded because the foundation for the opinion had not been established, the measurements having been taken by somebody else. The prosecutor responded by pointing out that Sergeant Bellion’s opinion was based also on photographs of the vehicles, and on data which he had received from manufacturers relating to the respective “stiffness” elements of the vehicles involved. The prosecutor pointed out, correctly, that not only had no objection been taken to the leading of the evidence (on the ground that the foundation for it had not been established) but defence counsel had proceeded to cross-examine Sergeant Bellion on his opinion. Counsel had sought, unsuccessfully, to suggest to Sergeant Bellion that, if the (Oldfield) measurements were wrong, it must follow that the calculations of speed would be wrong. In rejecting that suggestion, Sergeant Bellion said that the measurements simply enabled him to “refine” – that is, be more precise about – his conclusion as to the probable impact speed.
At no time, either before or during the trial, did the defence ask that the Crown call Mr Oldfield. In striking contrast, defence counsel made application for the learned trial Judge to compel the Crown to call three medical experts as witnesses. After hearing argument, his Honour ruled that he had no power to compel the Crown to call those witnesses and that, on the material presented, any failure by the Crown to call them would not give rise to any concern about a miscarriage of justice. No such application was made in relation to Mr Oldfield.
The history of the matter is important. The applicant was committed for trial on 10 September 2003, following a two day contested committal. On 18 May 2004, a directions hearing was conducted by Chief Judge Rozenes. Counsel appeared for the prosecution and the defence. Between 1 June and 7 September 2004, the trial hearing was adjourned on two occasions, the second as the result of an adjournment application by the defence.
I accept the submission of senior counsel for the Crown that modern criminal trial practice is quite deliberately directed at identifying, before the trial commences, matters of law or evidence which will be in issue at the trial. As counsel said, no longer is “trial by ambush” acceptable. In my view, if the defence had any intention of challenging the factual foundation of Sergeant Bellion’s opinion, there was ample opportunity for this to be raised, either at a pre-trial directions hearing or at the commencement of the trial.
As Gleeson, C.J. said in Doggett v R:[4]
“In the case of a trial by jury for an indictable offence, the presiding judge takes no part in the investigation of the alleged crime, or in the framing of the charge or charges, or in the calling of the evidence. Where the accused is represented by counsel, the judge’s interventions in the progress of the case are normally minimal. The prosecution and the defence, by the form in which the indictment is framed, and by the manner in which their respective cases are conducted, define the issues which are presented to the jury for consideration.”
[4](2001) 208 CLR 343 at 346.
Senior counsel for the Crown drew particular attention to the provisions of the Crimes (Criminal Trials) Act 1999, the purpose of which is stated (in s.1) to be –
“to increase the capacity for judicial management of criminal trials and make other changes for the purpose of improving the efficiency of criminal trials.”
Part 3 of that Act deals with pre-trial procedure. Of relevance for present purposes are the provisions which:
· enable the Court to hold directions hearings (s.5(1));
· enable the Court to require the parties to advise whether they are aware of any questions that require determination before the date for trial (s.5(5)(a));
· require the prosecution to file and serve a summary of the prosecution opening, and a notice of pre-trial admissions (s.6(1)), the latter being required to include a copy of the statements of witnesses whose evidence, in the opinion of the prosecutor, ought to be admitted as evidence without further proof (s.6(3));
· require the defence to respond to that summary and that notice and, in relation to the latter, to –
“indicate what evidence, as set out in the notice of pre-trial admissions, is agreed to be admitted as evidence without further proof and what evidence is in issue and, if issue is taken, the basis on which issue is taken.”
The Act applies to criminal trials in both the Supreme Court and the County Court (s.3).
As further evidence of what I have described as the “modern practice” in criminal trials, I should refer to the Supreme Court (Criminal Procedure) Rules 1998, which make provision (r.4.09) for pre-trial conferences to be conducted by the Criminal Trial Listing Directorate. At such a conference, “in order to facilitate an efficient trial”, the Directorate may enquire into any one of a range of matters listed in the Schedule, including the following:
“10. Is any point of law or of admissibility of evidence likely to be raised before a jury is empanelled? If yes, what are those matters and of what duration are the matters to be raised likely to take?”
By Practice Note No.1 of 2004,[5] the Supreme Court gave notice that the Criminal Division of the Court would, as from 3 May 2004 and until further notice, operate on a pilot basis a “Final Directions” variation of pre-trial procedure, to take place approximately a week before the fixed trial date. According to that Note:
“Prosecutors and Defence Counsel must prepare for such Final Directions. Preparation will necessitate prosecutors and defence counsel conferring, in the period of 7 to 10 days before the trial date, as to Final Directions particulars required by the Court, namely:
...
4. A statement of any matters to be resolved by the trial Judge before the empanelment of the jury;
5. A bullet point outline of arguments to be resolved by the trial Judge;
...”
[5](2004) 8 VR 475.
As noted earlier, a directions hearing was conducted in this matter by Chief Judge Rozenes on 18 May 2004. There were two subsequent adjournments of the trial. Each of those occasions afforded an opportunity for the defence to identify - as an issue requiring either remedial action by the Crown or a ruling on admissibility - the proposal by the Crown not to call Mr Oldfield to give evidence as to his taking of measurements and photographs at the collision scene. No such issue was raised nor, as I have pointed out, was it raised when the trial commenced or at any time during the evidence of Sergeant Bellion or otherwise before the conclusion of the defence case.
I now turn to consider the significance of the failure of the defence to object to the admissibility of the evidence. In my view, the failure to object has the consequence that the opinion evidence of Sergeant Bellion could properly be treated as evidence of the likely speed of the applicant’s vehicle at impact. By not objecting, the applicant waived the right which he undoubtedly had to object to the receipt of that evidence.
In arriving at that conclusion, I have been much assisted by the detailed consideration of these issues by Phillips, C.J. and Eames, J. (as his Honour then was) in Radford.[6] As noted by their Honours in that case, there are many instances in the context of civil litigation where the courts have held that hearsay evidence, once admitted without objection, may be treated as evidence of the facts asserted within its parameters.[7] As Gibbs, J. said in Hughes v National Trustees Executors and Agency Co. of Australasia Limited:[8]
“There are no doubt some cases in which inadmissible evidence, having been admitted, may be treated as evidence for all purposes; for example, where one party by his conduct of the trial has led the other to believe that evidence, although hearsay, may be treated as evidence of the facts stated, and the other in reliance on that belief has refrained from adducing proper evidence, the former party is precluded from objecting to the use of the evidence to prove the facts stated.”
[6](1993) 66 A Crim R 210 at 230-234.
[7]Re Lilley [19i53] VLR 98; Walker v Walker (1937) 57 CLR 630; Stunzi Sons Ltd v House of Youth Pty Ltd [1960] SR (NSW) 220; Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158; Jones v Sutherland Shire Council [1979] 2 NSWLR 206; Re Miller [1979] VR 381.
[8](1979) 143 CLR 134 at 153.
In Radford,[9] the Court held that it would be appropriate to apply in criminal cases the principle espoused in the civil cases. That is, hearsay evidence, once admitted in a criminal trial without objection, may be treated as evidence of the facts asserted. I see no reason not to apply that principle in the present case.
[9](supra) at 233.
There was, as I have said, ample opportunity to object. That being so, the failure to object constituted a waiver of the right to object, in my view.
The question of whether the doctrine of waiver applies in criminal cases was considered by the Court in Radford.[10]Phillips, C.J. and Eames, J. referred to an article by Mr Weinberg (written when his Honour was a senior lecturer in law at the University of Melbourne), entitled “The consequences of failure to object to inadmissible evidence in criminal cases.”[11] The learned author identified two conflicting lines of authority, respectively comprising cases which did, and cases which did not, support the applicability of “waiver theory” in criminal appeals.
[10](supra) at 230.
[11](1978) 11 MULR 408.
Victorian decisions up to that point (1978) were described in the article as having –
“embarked down the path of waiver without fully considering the consequences...”[12]
[12]at 425, referring to R v Matthews and Ford [1972] VR 3; R v Alexander and Taylor [1975] VR 741; R v Gay [1976] VR 577.
In R v Matthews and Ford,[13] the Court said that “mode or form” evidence was subject to waiver, while other rules of evidence were not. In R v Gay,[14] it was said that where there had been a “deliberate choice not to object” (for tactical reasons other than preserving an appeal point), this constituted waiver.
[13][1972] V.R. 3.
[14][1976] V.R. 577.
In his article, Mr Weinberg argued that the proper solution would be to deal with such issues not as a matter of waiver but by the use of the proviso in s.568(1) of the Crimes Act 1958, under which the Court of Appeal –
“may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismissed the appeal if it considers that no substantial miscarriage of justice has actually occurred.”
In the learned author’s opinion –
“The proviso ought to be used to uphold a conviction only where there is ample admissible evidence (apart from the inadmissible evidence received without objection) to sustain that conviction. In cases where the only evidence against the accused is the inadmissible evidence to which no objection was taken, the conviction should be quashed (subject to one slight modification discussed below).”
With respect, I think that the doctrine of waiver is properly applicable in a case such as this. My conclusion is strengthened by the very significant changes in criminal trial procedure which have taken place since that article was written. Given that the defence has both the opportunity and, to some extent at least, the obligation to identify in advance any disputes over admissibility, I think it can properly be said that there has been waiver when (as here) the point is not raised before trial or in the course of the evidence, and there is no cogent explanation for the failure.
Ground 4
Under this ground, the applicant contended that the direction to the jury in relation to count 2 (failing to render assistance) was deficient because the effect of the direction was –
(a) to reverse the burden of proof;
(b) to transfer to the applicant the onus of establishing the reasonable possibility that he did not have, at the relevant time, the requisite mens rea;
(c) to misstate the issue for determination by the jury on that count, such that the Crown was relieved of the obligation to prove its case beyond reasonable doubt; and
(d) to suggest that the jury was required to make an affirmative finding about the applicant’s state of mind before deciding that there was a reasonable possibility that, at the relevant time, he was not acting with the requisite mens rea.
In my view, this ground fails. The learned trial Judge correctly directed the jury, on a number of occasions during the charge, that the burden of proof at all times lay on the prosecution, to establish the elements of the offence beyond reasonable doubt. In relation to the applicant’s state of mind in particular, his Honour said:
“The accused has raised the issue of automatism and on the medical evidence that has been placed before you, has raised the issue as to the absence of any intent to commit this second count. And of course the fact that the accused has raised this issue places no onus on the accused to establish it. It is simply an issue [which] once it is raised is – it is for the prosecution to establish beyond – must establish that the accused, in fact, knew at the time what he was doing and that he was not subject to the medical conditions that you have heard evidence about.
The prosecution must establish, beyond reasonable doubt, that when the accused failed to render assistance he did so consciously and voluntarily. The prosecution must also establish, beyond reasonable doubt, that the accused was aware, at the time, that the accident was one in which an injury had occurred.
Now those issues are clearly contested by the defence. The defence rely on the evidence of, first of all, the evidence of the accused in the record of interview that you have heard played and a suggestion that he was suffering amnesia and concussion.”
In my view, this passage reflects – consistently with the effect of the charge as a whole – a correct delineation of where the onus lay.
Ground 3
Under this ground, the applicant contended that the learned trial Judge failed to direct the jury that, before the applicant could be convicted on count 2, it was necessary for the Crown to prove beyond reasonable doubt that –
(a) there was assistance which could have been given by the applicant;
(b) he was capable of giving that assistance;
(c) he knew or was aware that there was assistance which he could have given; and
(d) he knew or was aware that he was capable of giving that assistance.
In these circumstances, so it was argued, the applicant had in effect not been tried for the crime with which he had been charged.[15]
[15]cf. Andrews v R (1968) 126 CLR 198 at 209.
In my view, this ground also fails. In his direction on count 2, the learned trial Judge directed that the prosecution had to prove the following elements, namely that –
(a) the applicant was the driver of a motor vehicle on 12 March 2002;
(b) he was involved in an accident;
(c) a person suffered serious injury in that accident;
(d) the applicant was aware that a person had been injured;
(e) he failed immediately to render such assistance as he could; and
(f) such failure was “a conscious and voluntary” omission on his part.
As senior counsel for the Crown pointed out in this Court, in the course of the charge the learned Judge drew the attention of the jury more than once to the defence hypothesis that, because the applicant had suffered a head injury, his immediate post-collision conduct was involuntary and/or the product of impaired mental functioning. It appears to have been accepted on all sides that, if the jury concluded that the failure to render assistance had been conscious and voluntary, there was no issue but that the applicant could have provided assistance to the victim and was aware of his capacity to do so.
In my view, there was no error in the direction on this count.
Grounds 5 and 6
Under these grounds, the applicant contended that the charge was deficient in that the learned trial Judge failed to summarise the defence case with sufficient clarity and failed to relate the evidence which brought upon the issues in the trial to those issues. I reject these grounds. In my opinion, the charge was perfectly adequate in both these respects. The references his Honour made, in the course of the charge, to the defence case and to the evidence relied upon by the defence in relation to the issues – in particular, the medical evidence relating to the consciousness and voluntariness – were perfectly adequate to equip the jury for its task.[16]
[16]cf. R v Taylor (2004) 149 A Crim R 399 at [23] per Nettle, J.A.
Ground 9
Under this ground, the applicant contended that the jury’s verdict on count 2 (failing to render assistance) “was unreasonable and cannot be supported having regard to the evidence”. It is apparent from the particulars given of this ground that the complaint is, in substance, that the jury could not have been satisfied beyond reasonable doubt, in view of the medical evidence, that the applicant had the requisite state of mind.
The principles governing the approach by a court of criminal appeal to a ground of this kind were clearly set out by the High Court in M v The Queen,[17] as follows:
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining built or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”
[17](1994) 181 CLR 487 at 493.
Having approached the task in accordance with that prescription, I am satisfied, on the whole of the evidence, that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.
Ground 7
This ground concerned count 1 (negligently causing serious injury). The applicant contended that the Judge erred in directing the jury that there was evidence from which the jury could infer his guilt, namely, the evidence that he fled from the scene of the collision so as to avoid apprehension, investigation and/or a breathalyser test.
In his charge, the learned trial Judge reminded the jury of the Crown’s allegation that –
“the accused fled from the scene of the collision, so as to avoid apprehension or so as to avoid investigation and so as to avoid a breathalyser test, and the Crown says that you can infer guilt from that fact...”
His Honour went on to give a clear direction to the effect that, before the jury could infer consciousness of guilt from flight, the jury must be satisfied that –
(a) the accused did indeed flee; and
(b) the cause of his flight was his desire to escape the consequences of this particular crime.
His Honour went on:
“Were you satisfied, beyond reasonable doubt, that the accused did flee and did so because of consciousness of guilt of the offence charged in Count 1, you could use the evidence of the accused’s own consciousness of guilt as evidence of actual guilt. In doing so, however, you should be careful to consider the possibility that the accused may have wrongly believed himself to be guilty.
If you are able, on the whole of the evidence to exclude that possibility, beyond reasonable doubt, evidence of flight becomes evidence of guilt. However, there’s a further consideration which has been raised, quite properly, by the defence in this trial and that is, of course, that the defence suggests to you that immediately following the accident, (a) that the accused suffered from post-traumatic amnesia, the effect of which was that he was unable to form an intention to leave the scene without providing assistance to anyone injured, that he was unable to know that anyone was injured.
Or (b) that he suffered from post-accident epilepsy, again as a result, he wasn’t able to form an intention to leave without rendering assistance to persons who were injured. Or (c) that he suffered concussion with the same result, that he, as a result, could not form an intention to leave the scene without rendering assistance.”
The Crown submitted that it was clearly open to the jury to find that the applicant had his wits about him immediately after the accident and that his flight evidenced a consciousness of guilt. One of the witnesses heard a loud bang and, going outside immediately, observed that only two injured men were present. There was no sign of the applicant. According to the Crown’s submission, the disappearance of the applicant so soon after the accident undermined the defence contention that he was concussed by the collision or afflicted by a seizure. The Crown also referred to the evidence of the applicant’s –
· removal and discarding of his bloodstained T-shirt in a nearby side street;
· hiding in a garden;
· fleeing into parklands;
· accessing an autobank;
· catching a taxi into the city; and
· checking into a hotel in the early hours of the following morning.
In my view, the Crown’s submission should be accepted. There was evidence from which the jury, having been properly directed about consciousness of guilt, could have been satisfied beyond reasonable doubt that he did flee and did so because of consciousness of guilt.
Ground 8
This ground alleged that there had been a substantial miscarriage of justice “by reason of the combination or aggregation of the defects or errors” identified in the other grounds. In view of the conclusions I have reached on those other grounds, this ground also fails.
The sentence appeal
In his application for leave to appeal against sentence, the applicant relies on the following grounds, namely that the Judge to accord any or any sufficient weight to –
(a) his prospects of rehabilitation;
(b) his previous good character;
(c) the sentencing principle of totality.
A further ground was that each of the individual sentences, the total effective sentence and the non-parole period was manifestly excessive in all the circumstances.
The question of the weight to be given to particular factors is a matter for the sentencing judge. Unless it can be shown that a particular, relevant, consideration was ignored altogether, this Court will be very slow to intervene on the ground that insufficient weight was given to a particular matter. It is clear from the learned trial Judge’s sentencing remarks that each of the matters relied on was taken into account in the process of arriving at the sentencing decision.
Nor am I persuaded that the ground of manifest excess is made out. The learned trial Judge comprehensively examined the relevant circumstances, including the aggravating factor that the applicant was a serving Senior Constable of police. His Honour rejected the assertion that the applicant was remorseful for the injuries inflicted. His Honour also concluded that the applicant had squandered the leniency
extended to him by the Magistrates’ Court six months before the events with which these charges were concerned.
In my view, the sentence imposed by his Honour was well within the range open to him in the exercise of the sentencing discretion.
Conclusion
For the reasons given, both the application for leave to appeal against conviction and the application for leave to appeal against sentence must be dismissed.
CHARLES, J.A.:
I have had the advantage of reading a draft of the reasons for judgment prepared by the President. I agree with his Honour that the applications for leave to appeal against conviction and sentence should both be dismissed, and, save insofar as ground 2 is concerned, for the reasons given.
As to ground 2, I agree with the conclusion of the President that the doctrine of waiver is properly applicable in criminal proceedings. Where defence counsel makes a deliberate choice not to object to hearsay evidence adduced by the prosecution, there could be little ground for a later objection on appeal that the evidence was inadmissible. I agree with Nettle, J.A. that the reasoning in R. v. Radford[18] is compelling in this respect. Furthermore, the correctness of the conclusions in Radford as at today is reinforced by the changes in criminal trial procedure described by the President[19] and the observations of Gleeson, C.J. in
Doggett v. R.[20].
[18](1993) 66 A.Crim.R. 210 at 232-234. The criticism of Radford in Heuston (1995) 81 A.Crim.R. 387 at 394-5 is irrelevant to the conclusions on hearsay evidence.
[19]At pars.[13]-[15].
[20](2001) 208 C.L.R. 343 at 346, esp. [1]-[2].
I share, however, the reservations of Nettle, J.A. as to whether defence counsel could be said in the present case clearly to have waived any objection to the hearsay evidence given by Sergeant Bellion. During cross-examination, defence counsel had put to the witness on several occasions that his evidence of speed was based on the measurements made by Senior Constable Oldfield, and that if those measurements were wrong, there was a problem with his calculations of speed[21]. Sergeant Bellion did not accept this, claiming that his evidence based on Oldfield’s calculations amounted to a refining cross-check on another method of assessing the speed of the applicant’s car, which was based on photographs of both damaged vehicles and using material as to the stiffness properties of these vehicles supplied by the manufacturers. This was also, I should add, in strictness, hearsay but defence counsel deliberately excluded[22] from his later objection to hearsay the manufacturers’ data.
[21]See transcript of Sergeant Bellion’s cross-examination, at pp.268-270.
[22]Transcript, p.641.
No objection was taken by counsel to the reception of Sergeant Bellion’s evidence until after the close of the Crown case. Senior Constable Oldfield’s name had, nonetheless, been on the presentment as a witness to be called.
It may well be that counsel should be taken to have waived the objection to hearsay, and that his decision to object to Sergeant Bellion’s evidence was only made as a result of a change of mind at the end of the Crown case. I agree nevertheless with Nettle, J.A. that the proper course, in fairness, was for the judge to allow the prosecution to reopen its case and to call Senior Constable Oldfield, as the prosecutor proposed when objection was finally taken.
I also agree with Nettle, J.A., for the reasons he gives, that there has, however,
been no miscarriage of justice and that this is a clear case for the application of the proviso.
NETTLE, J.A.:
I have had the advantage of reading in draft the reasons for judgment of the President.
I agree with his Honour that the application for leave to appeal against conviction and the application for leave to appeal against sentence should be dismissed. But I wish to add some observations of my own concerning Ground 2.
The question of whether counsel’s failure to object to objectionable evidence may constitute a waiver of the objection is a vexed one.[23] Like the President, I take the view that an objection may be waived. With respect, I consider that the reasoning in R v Radford[24] is compelling. But it is to be noted that the analysis in that case goes only as far as that, if counsel makes a deliberate choice to refrain from objecting to hearsay evidence and addresses the jury on the assumption that they could, were they minded to do so, accept the truth of that which was asserted, he may be taken to have waived objection. This case is different. Although defence counsel did not at first object, and I think it is likely that he made a deliberate decision not to object, he later changed his mind and raised objection before final addresses.
[23]See for example, W.N. Harrison, Hearsay Admitted Without Objection, (1955) 7 Res Judicata 58 at 67; Mark Weinberg, The Consequences of Failure to Object to Inadmissible Evidence in Criminal Cases (1977) 11 MULR 408 at 424-426; and The Status of Hearsay and Other Evidence Admitted Without Objection, Note (1985) 1 ABLR 155 at 158.
[24](1993) 66 A.Crim. R 210 esp. at 232-233.
That being so, I am not sure whether counsel should be taken to have waived objection, and I am inclined to think that he should not be. While it seems likely that he made a deliberate decision not to object, and while one’s immediate reaction in those circumstances may be that his decision should be enough of itself to
constitute a waiver, it is possible that the decision was a mistake, or the result of overlooking the need to object, and, in any event, in the context of a criminal trial I remain to be convinced that an accused’s counsel should be prohibited from changing tack more than once before final addresses; so long as it is possible to achieve fairness for both sides.
In this case the objection could have been allowed, consistently with fairness for both sides, by allowing the prosecutor to call Senior Constable Oldfield as a rebuttal witness (as the prosecutor proposed to the Judge when the objection was taken). And, with respect, I think that is the course which the trial Judge should have followed. The failure to call Senior Constable Oldfield at an earlier stage could not have prejudiced other aspects of the Crown case (so long as he was able to be called once the objection was taken), and if once called it proved that Senior Constable Oldfield was unable to verify the information which he had passed to Sergeant Bellion, there is every reason why that should have been exposed.
As it appears to me, therefore, the circumstances of this case are a significant way from those in Radford which were held to amount to waiver, and hence to my way of thinking Radford should not be regarded as controlling.
But if the conduct of the applicant’s case at trial did not result in a waiver of objection to the Crown’s reliance on the measurements taken by Senior Constable Oldfield, this is plainly a case for application of the proviso. For in my judgment it cannot be supposed that the verdict would have been any different if the evidence of those measurements had been excluded. The President has referred to Sergeant Bellion’s evidence that without the measurements he would have been able to determine that the applicant’s car was travelling at between 81 and 95 kph at the time of collision. But in truth it went further than that. Sergeant Bellion said in cross examination that if he had used just the collision deformation classification number (about which there was no objection), the calculated figure might have come between 86 and 90 kph.
The overall effect of Sergeant Bellion’s evidence, therefore, was that, if he had not had Senior Constable Oldfield’s measurements available to him, he would have said that the actual speed could theoretically have been in the range of 81 to 95 kph but was most probably in the range of 86 to 90kph, but that because he had Senior Constable Oldfield’s measurements available to him he was able to say that the actual speed could theoretically have been in the range of 81 to 95 kph but was most probably 88 kph. In substance there is no difference between those two estimates.
Regardless of which of the competing views of the proviso one applies,[25] there has been no miscarriage.
[25]See R v Weiss (2004) 8 V.R. 388 at 397[62]–[67].
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