R v Colbert

Case [2016] SASCFC 12

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v COLBERT

[2016] SASCFC 12

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Lovell)

24 February 2016

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE

Appeal against convictions and sentence.  The appellant was convicted by unanimous jury verdict for the offences of endanger life and manslaughter by gross negligence.  The appellant owned and operated a trucking company.  In March 2014, the brakes on a particular truck failed on two occasions.  The first occasion resulted in a “near miss”.  The second occasion resulted in an accident, in which the driver of the truck suffered injuries that caused his death.  It was the prosecution case that the evidence established that the appellant had been made aware that the truck’s brakes were not functioning properly prior to the incidents.  The appellant was sentenced to a term of imprisonment of 13 years and 6 months, reduced to 12 years and 6 months on account of time spent in custody and on home detention bail, with a non-parole period of 10 years.

Whether the summing up lacked balance.  Whether the Judge properly directed on the burden of proof.  Whether the Judge properly directed on the meaning of gross negligence.  Whether to apply the proviso.

Held per the Court (allowing the appeal):

1.       There should be a retrial on the charges.  Appeal against sentence not considered.

2.       The Judge properly directed the jury on the meaning of gross negligence.

3.       This is not a case for the application of the proviso.

Per Gray and Sulan JJ:

1.       Appeal allowed on the basis that the Judge’s summing up lacked balance.

2.       The Judge properly directed the jury on the burden of proof.

Per Lovell J:

1.       In the circumstances of the case a “Liberato” direction was required.  Appeal allowed on grounds 2, 4 and 6.

2.       The summing up was fair and balanced.  Grounds 1 and 3 dismissed.

Criminal Law Consolidation Act 1935 (SA) s 13, s 29(1) and s 353(1), referred to.
Cleland v The Queen (1982) 151 CLR 1; R v Courtney-Smith (No 2) (1990) 48 A Crim R 49; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Weiss v The Queen (2005) 224 CLR 300; Baini v The Queen (2012) 246 CLR 469; Nydam v R [1977] VR 430; Liberato v The Queen (1985) 159 CLR 507; McKenzie v Police [2015] SASC 78; Wilde v The Queen (1988) 164 CLR 365; AK v Western Australia (2008) 232 CLR 438; Fleming v The Queen (1998) 197 CLR 250; Gassy v The Queen (2008) 236 CLR 293; Lindsay v The Queen (2015) 89 ALJR…

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R v Colbert [2016] SASCFC 12
Case
[2016] SASCFC 12
Decision Date

CaseChat Overview and Summary

The appellant, Peter Francis Colbert, appealed his convictions for endangering life and manslaughter, as well as his sentence, following a trial in the Supreme Court of South Australia. The charges arose from two separate incidents involving a Mitsubishi Tautliner truck owned by Colbert Transport Pty Ltd, a company of which the appellant was the sole director and shareholder. The first incident involved a brake failure while being driven by Shane Bonham, and the second involved a fatal brake failure while being driven by Robert Brimson.

The central legal issues before the appellate court concerned alleged misdirections and non-directions by the trial judge in his summing-up to the jury. Specifically, the appellant argued that the judge failed to adequately direct the jury on how to treat the appellant's evidence and failed to provide a direction in line with the authority of *R v Liberato*. Furthermore, the appellant contended that the judge should have instructed the jury to consider each of the two counts separately, given that evidence admissible for one count might not have been admissible for the other.

The appellate court allowed the appeal, setting aside the convictions and sentence, and ordered a retrial. The court found that the trial judge had failed to give the necessary directions regarding the consideration of the appellant's evidence and the separate treatment of the two counts. The court emphasised the fundamental requirement for clear and correct directions on the onus and standard of proof, particularly in cases involving a conflict between prosecution witnesses and the accused. The court noted that the failure to raise these matters at trial did not preclude the grounds of appeal from succeeding, as the issues related to fundamental aspects of the summing-up.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against convictions and sentence.Background On 17 June 2015, the defendant and appellant, Peter Francis Colbert, was convicted of the offences of endangering life[1] and manslaughter[2] following a trial before a Judge and jury. Both verdicts were unanimous. [1] Criminal Law Consolidation Act 1935 (SA) section 29(1).[2] Criminal Law Consolidation Act 1935 (SA) section 13. The defendant was the sole director and shareholder of a trucking company, Colbert Transport Pty Ltd. The defendant purchased the business from Dean Sellars. Prior to purchasing the business, the defendant was an employee of Mr Sellars. The company had a fleet of 11 trucks, which were owned by the wife of the previous owner of the business. After purchasing the business, the defendant managed the day-to-day affairs of and the business of the company. He was responsible for the maintenance and upkeep of the fleet of trucks and the allocation of driving jobs to employed drivers. The company’s fleet of trucks included a Mitsubishi Tautliner truck, registered number SB49DY, which was known as the “Big Girl”. The truck was permitted to weigh not more than 22.5 tonnes, including its load. Shane Bonham was employed by the company as a truck driver. On 5 March 2014, he was driving the Mitsubishi truck south on Dyson Road. He attempted to apply the brakes to bring the truck to a halt at an intersection, but the brakes failed. This incident gave rise to the count of endanger life. Robert Brimson was employed by the company as a truck driver. On 7 March 2014, he was driving the Mitsubishi truck on Main South Road in the course of his employment. The brakes failed and the truck collided with the support column of an overhead advisory road sign. Mr Brimson died as a result of injuries sustained in the crash. The truck and load weighed 18.2 tonnes at the time of the collision. This incident gave rise to the count of manslaughter. On 21 August 2015, the Judge sentenced the defendant to a term of imprisonment of 13 years and six months. This was reduced to 12 years and six months to take account of time spent in custody and on home detention bail. A non-parole period of 10 years was fixed. The sentence commenced on 13 August 2015, the date on which the defendant’s bail was revoked. The defendant was disqualified from holding or obtaining a driver’s licence until further order.The Prosecution Case on the charge of Endanger Life It was the prosecution case that the defendant owed a duty of care to the truck drivers employed by Colbert Transport to properly maintain the braking systems of the trucks so that they could be safely driven on public roads with loads up to the relevant maximum. It was said that the defendant permitted Mr Bonham to drive the Mitsubishi truck with its load on public roads on 5 March 2014 in circumstances where the truck’s braking system was in such a state that it was likely to endanger the life of Mr Bonham. In respect of this element of the offence, the jury needed to be satisfied that a reasonable person in the position of the defendant, with his knowledge and who engaged in the same conduct, would have foreseen that his conduct carried with it and appreciable risk of death to a person driving the truck with its loads on public roads on 5 March 2014.

Evidence

Evidence Before The Court

Finally, it was the prosecution case that the defendant’s failure to maintain the truck’s braking system was grossly negligent. To be satisfied that the defendant’s conduct amounted to gross negligence, the jury needed to be satisfied that a reasonable person in the position of the defendant, with his knowledge and who engaged in the same conduct, would have foreseen that his conduct carried with it a high risk that death or really serious bodily harm would follow. The jury needed to be further satisfied that the defendant’s conduct involved such a great falling short of the standard of care that a reasonable person would have exercised, and involved such a high risk of death or really serious bodily harm, that it warranted criminal punishment. The Evidence at Trial A number of current and former employees gave evidence. The effect of this evidence was that, at times leading up to 7 March 2014, they had driven, or had been a passenger of, the truck the “Big Girl” and each had experienced problems with the braking system. They gave evidence that the defendant was aware that the brakes did not function satisfactorily and that he failed to adequately maintain the truck, in particular the braking system. Kevin Bonham worked for Mr Sellars. He gave evidence that when he first commenced employment with Mr Sellars the Mitsubishi truck was having work done on it. About two months after Mr Bonham started, the defendant joined the business and became the most frequent driver of the truck. Mr Bonham said he had driven the truck on eight or ten occasions. When he drove the truck, he found that he would sometimes have problems with the air pressure associated with the brakes. He noticed the problem on the second occasion on which he drove the truck, prior to about October 2013. He told the defendant about the problem. The defendant agreed that the air pressure did drop on occasion and advised Mr Bonham to keep the revolutions up at around 1,000 to 1,200 to keep enough air in the tanks. Donna Miles worked for Mr Sellars for a couple of weeks in late 2013. She gave evidence that, on her first day, she drove as a passenger in the Mitsubishi truck with the defendant. She also drove the truck. In her assessment, the brakes were not stopping the truck as quickly as they should have. She told the defendant and he took over as the driver. Later in the week, she again drove the truck and had difficulty with the brakes. On that occasion she drove with another employee, Dale Dahlhelm. During the course of that trip Mr Dahlhelm had to attend to what appeared to be a fuel blockage. Mr Dahlhelm worked for Mr Sellars in 2013. He gave evidence about driving the Mitsubishi truck on one occasion with Ms Miles. He described the brakes as poor and found it difficult to pull up, particularly with a full load. The truck was slow to slow down and he needed to use the gears in addition to the brakes in order to slow down. Mr Dahlhelm said that, at one point during the trip, he had to swerve to miss a car that had pulled out in front of him because the brakes did not slow the truck down in time. He spoke to Mr Sellars about the truck in the presence of the defendant, who said that the vehicle was fine.

Decision

Reasons for decision

GRAY AND SULAN JJ
The defendant accepted that the Judge correctly directed the jury on the meaning of gross negligence.21 It was said, however, that the Judge’s reference to other types of dispute were confusing and unhelpful. In our view, there is no substance to this complaint. The Judge’s reference to negligence in the civil litigation context did no more than illustrate the Judge’s direction about the high standard to which the jury needed to be satisfied to find that the defendant was grossly negligence. 21 See Nydam v R [1977] VR 430, 445.Conclusion We would allow the appeal, set aside the convictions and sentence imposed and order a retrial. In the circumstances, it is unnecessary to address the appeal against sentence. The facts relating to this matter are set out in the joint judgment of Gray and Sulan JJ and I gratefully adopt their summary.Grounds 2, 4 and 6 It is convenient for me to deal with these three grounds first. The appellant complained that the Judge failed to direct the jury as to the manner in which they should treat the evidence of the appellant.22 Further, the appellant complained that the Judge failed to give a direction in line with the authority of R v Liberato.23 The need for such a direction, it was submitted, was heightened by the way in which the Judge structured his summing-up. Further, it was submitted that as the appellant was charged with two separate counts the Judge was required to instruct the jury that they should consider each count separately in light of the evidence that applied to each count. Whilst the evidence relevant to count 1 was generally admissible in relation to count 2 there was evidence given in relation to count 2 that was not admissible in relation to count 1. It was accepted by the prosecution on appeal that the Judge failed to give such a direction. 22 Murray v The Queen (2002) 211 CLR 193.23 (1985) 159 CLR 507. I note that neither counsel at trial brought these matters to the attention of the Judge after his summing-up had concluded. The failure to raise the matters does not mean the grounds cannot succeed. It is a fundamental requirement of a summing-up that it contain clear and correct directions to the jury upon the onus and standard of proof. Where a case involves a conflict between the prosecution witnesses and the accused (and any witnesses) it is essential to ensure that a finding of credit adverse to an accused does not conclude the issue whether the prosecution has proved the issues beyond reasonable doubt that it bears the onus of proving.24 The issue in this case for the jury was not whether it should accept the appellant’s version of events but whether the prosecution had negatived it as a reasonable possibility.2524 Liberato v the Queen (1985) 159 CLR 507.25 Murray v The Queen (2002) 211 CLR 193. As can be seen from the factual summary referred to above, the main issue at the trial in relation to both counts was the knowledge of the appellant as to the defects in the braking system of the truck. The incidents were separated in time by two days. The prosecution called evidence which if accepted by the jury established that the appellant had failed to maintain properly the brakes on the truck. Further, in relation to count 2 the prosecution relied on the statement of the alleged victim of count 1 Mr Bonham that he told the appellant of his “near miss” the subject of count 1.

Ratio Decidendi

Legal Principle Established

Established by: GRAY AND SULAN JJ

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