R v Cottell
[2012] QCA 243
•7 September 2012
SUPREME COURT OF QUEENSLAND
CITATION:
R v Cottell [2012] QCA 243
PARTIES:
R
v
COTTELL, Troy Anthony
(applicant/appellant)FILE NO/S:
CA No 193 of 2012
DC No 204 of 2011DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Townsville
DELIVERED ON:
7 September 2012
DELIVERED AT:
Brisbane
HEARING DATE:
5 September 2012
JUDGES:
Margaret McMurdo P, Fraser and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
Order delivered ex tempore on 5 September 2012:
1. Application for leave to appeal against sentence is dismissed.
Orders delivered on 7 September 2012:
1. Appeal against conviction allowed.
2. Verdict of guilty set aside.
3. Verdict of not guilty entered.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where appellant convicted of dangerous operation of a motor vehicle and sentenced to 15 months imprisonment suspended after six months with an operational period of three years and disqualified from obtaining a driver’s licence for three years – where appellant was owner of the registered vehicle, but denied being the driver at the time of the accident – where a witness saw an unidentified man leave the scene after the accident – where evidence was led that appellant was found unconscious, snoring in the backseat immediately after the accident – where appellant claimed he did not remember any of the relevant events – whether the evidence at trial was insufficient to prove guilt beyond reasonable doubt – whether jury verdict unreasonable
Criminal Code 1899 (Qld), s 328A
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, citedCOUNSEL:
M J Byrne QC, with G T Hansen, for the appellant
B J Merrin for the respondentSOLICITORS:
Lee Turnbull & Co for the appellant
Director of Public Prosecutions (Queensland) for the respondent
MARGARET McMURDO P: The appellant was charged with dangerous operation of a vehicle, whilst adversely affected by an intoxicating substance. After a two day trial in the District Court at Townsville he was convicted of dangerous operation of a motor vehicle. He was sentenced to 15 months imprisonment suspended after six months with an operational period of three years and was disqualified from obtaining a driver's licence for a period of three years. He appeals against his conviction contending that the jury verdict was unreasonable.
That ground of appeal requires this Court to review the whole of the evidence and determine whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty: M v The Queen;[1] SKA v The Queen.[2]
[1](1994) 181 CLR 487, 493–495.
[2](2011) 243 CLR 400.
The appellant contends that the evidence at trial was insufficient to prove beyond reasonable doubt that he was the driver of the vehicle whilst it was operated dangerously when driven from the Victoria Hotel, Ingham, until it collided with poles on the Bruce Highway about 500 metres away.
The evidence at trial
The appellant formally admitted (ex 26) that the motor vehicle involved in the accident was registered and belonged to him; it had some defects which did not contribute to the accident; and at 1.35 am on 19 March 2010 he had a blood alcohol concentration of .071 per cent.
Christopher Catchinda gave evidence that on the evening of 18 March 2010, he was at the Victoria Hotel, Ingham. He had had a fair bit to drink. He had poor eyesight but he could see. He was with his cousins, Les Seeton and Stafford Nemo. At about midnight, Les spoke to a man whom he knew. This man asked Les if he wanted to come for a ride in his car. Les asked Mr Catchinda to come. Mr Nemo told them not to and they did not accept the offer. The car drove off and was speeding and fishtailing as it headed north. Soon after, he heard a loud noise. He walked in the direction of the noise and saw that the car had hit a tree. He could not remember the colour of the car as he had been drinking wine. In cross-examination he said that he thought there were people in the back seat; more than one, he thought, but he did not really see who was driving the car.
Stafford Nemo gave evidence that he was drinking with Christopher Catchinda and Les Seeton that night at the Victoria Hotel. He had had "plenty to drink" but was not much affected by it. He saw a car arrive at the hotel after coming around the corner pretty fast. It picked up three people and took off again. Christopher and Les went to get into the car but he told them not to. The car took off with "wheels squeaking" and smoke coming from the tyres. He then heard a bang. In cross-examination, he confirmed that there were three passengers and a driver in the car.
Ms Kellie White was at her home on a service road about five metres from the Bruce Highway, Ingham reading a book in bed at about 11.10 pm on 18 March 2010, when she heard a car accelerate from traffic lights on the corner and then a loud thud. She opened her front door and looked about seven metres across the road to where a car had collided with street poles. She could hear muffled talking but no-one was getting out of the car. She called 000 for an ambulance. She saw a man jog down the street towards the car. (It is not contentious that this was another neighbour, Mr Darren Potts.) By the time she rang for the ambulance and arrived at the scene, people were sitting under a tree, although she had not seen anybody get out of the car. She saw a morbidly obese man across the road. (It is not contentious that this was neither Mr Bisson nor the appellant but rather some unknown man.) She did not know if this man came from the damaged car but he was walking slowly and with difficulty away from the accident scene. Shortly afterwards, ambulance and police officers arrived. In cross-examination, she agreed that the obese man whom she saw walking away looked a bit rattled and she apprehended that he had been involved in the accident. She agreed that there was a man called "Bisson" in the car. He was also walking away from the accident but the police called out to him to come back.
Sandra Burr was 18 at trial and 16 at the date of the accident. She was asleep in her home near the accident scene when she was awakened by a big thud. She was "a bit dazy" but got out of bed and ran straight to the crash site. She did not see anybody leave the damaged vehicle which was wrapped around a pole. A woman was hanging out of the front passenger seat window speaking on a mobile phone. Ms Burr enquired of this woman whether she was OK. The woman said she was calling an ambulance and the police. It is not contentious that this woman was Leah Gould (sometimes referred to in the transcript as Leah Goulder.) Ms Burr saw two unconscious males with their eyes closed in the back seat. One of them was the appellant and he was snoring. The driver's seat was down and resting on the appellant's knees so that "he was a bit cramped up". The other man in the back seat was Mr Bisson. Two men arrived and helped them out of the car. She did not see anybody walk away from the car. The lighting was "quite dim".
In cross-examination, she agreed there may have been some time lapse between when she heard the thud and when she and her mother walked outside. After she assisted the appellant, she noticed she had blood on her clothing. She tried to awaken the appellant by shaking his head but she could not rouse him and he was snoring. She was certain that she did not get into the vehicle.
She agreed that she gave a statement to police in June 2011 to the effect that she got onto the driver's seat through the front driver's window which was down, and reached around and undid a seat belt. She agreed that her memory of the incident in June 2011 would have been better than it was at trial. The crash happened so long ago and she had had a lot of vivid dreams about it as she was young at the time and traumatised by it. She wished she had done more to help the appellant and Mr Bisson get out of the car. She was still thinking about the accident at the trial.
The fact that the driver's seat was pushed so far back jamming the appellant's knees made her think that the driver must have been "rather large". The appellant was leaning back onto the back seat, sleeping, and looked "quite cramped up". His head was bleeding and next to a pole which had entered the vehicle. She pointed out in a photograph (ex 2) his position in the car and again stated that he was behind the driver's seat. She said she did not get into the car and undo any seat belts. She remembered a bald man (Mr Potts) dragging the appellant out of the back seat through the window behind the driver's seat, not through the driver's door. They could not get the rear door open but the rear window was down. She at first told the police that the appellant was the driver of the motor vehicle but that was not correct; this had been an assumption on her part.
In re-examination, she maintained that the appellant's legs were definitely behind the driver's seat. She had had quite a few dreams about the incident in which different things happened and she agreed she confused reality with her dreams because of the trauma and her youth. She was now able to differentiate between what she dreamt and what she saw. She repeated that she saw the appellant passed out in the back seat; no-one was in the driver's seat; she did not touch any seat belts and did not think anyone was wearing seat belts but it was dark and she could not see. The appellant's legs were quite firmly behind the driver's seat.
Mr Darren Potts also lived near the accident scene. He was awake at about midnight on 19 March 2010 when he heard a screeching of tyres, a loud thud and crash, and a female voice calling for help. He ran outside, surveyed the scene and told his partner to ring the police. He ran to the crash site about 700 or 800 metres away. He agreed that at this time he was bald. A woman was sitting on the ground. Another man was helping a male on the passenger side. He saw "a head sticking out the rear window. Or the top of a head." He marked with a Nikko pen on a copy of the photograph tendered as ex 2 the position of the appellant's head at the far rear window in the back seat on the driver's side. This marked photograph was tendered as ex 11. The driver's seat was reclined back as far as it could go. When asked the position of the appellant's legs, he replied, "I would imagine straight out, but I didn't take much notice, I was more concerned about getting [the appellant] out." He did not move the front seat in extracting the appellant from the car and did not notice that the appellant was caught up in anything.
The following exchange then occurred between the prosecutor and Mr Potts:
"Your Honour, this next part is led without objection from my learned friend.
HIS HONOUR: Yes.
[PROSECUTOR]: So you helped the driver get out of the car?-- Yep.
You try to open the rear driver's side door, but you couldn’t get it opened?-- No.
You were able to get the front door open and the driver was able to get out through the front door?-- Yep.
When he got out he said to you, and to the woman passenger who you didn't know, "Who was driving?"-----?-- Yes.
-----is that right? He then said to the woman, "Were you driving?" That's a yes?-- Yes.
And she said in response to him, "No, you were driving."?-- Yep.
He then asked you if you were driving?-- Correct.
And you said that you weren't driving?-- Yep.
He then told you, "Take the car down the side street, we've got to move the car, hide the car."?-- Yep.
Are you able to say whether this person, when his head was out the back window, had a seatbelt on?-- No, I couldn't tell."
In cross-examination, he stated that the appellant wanted to get out of the car but Mr Potts at first told him to remain still until the ambulance came. He then decided there was no point trying to stop the appellant getting out of the car. Mr Potts tried unsuccessfully to open the back door. He instead leant through the front door to assist him out. The appellant shuffled or dragged himself from the back seat across the centre console and out through the front door. It was possible that somebody else had put the front seat down before he assisted the appellant out of the back seat. When Mr Potts first looked into the car, the appellant was "basically just lying straight back". The driver's seat was not impeding or on top of his legs. He thought the appellant was lying on top of the driver's seat but he was not certain. His memory was a little vague. The appellant was dazed and confused. When he first saw him in the back seat he looked as if he was sleeping. He approached the appellant explaining, "I'm the first aid officer, I'm here to help, are you okay?" There was not much movement for a while and then the appellant began to say, "I've got to get out. Get me out." He agreed the appellant was unconscious at first; there was blood on his neck, arms and through his hair.
After he got the appellant out the driver's side door and onto the nature strip, he tried to get him to sit down and wait for the ambulance. He told police at the scene that the appellant was the driver of the motor vehicle but he agreed that, on reflection, this was an assumption on his part. He did not see anyone in the driver's seat of the motor vehicle when he arrived at the scene; the appellant was lying down in the back.
Mr Damien Jardine, an ambulance officer and advanced care paramedic, received a phone call on 19 March 2010 to attend the accident scene. When he arrived, he saw a Holden Commodore crashed rearwards into street poles, some injured people and bystanders milling about. The lighting was dim. He saw the appellant in a reclined position being supported by a woman. They were away from the vehicle near some trees. He asked the appellant some basic questions known as the Glasgow Coma Scale (GCS) with scores from 3 (unconscious) to 15 (fully conscious and alert). He noted that the appellant was at 15 on the GCS. He asked him where he was within the vehicle. The appellant stated that he was the driver.
In cross-examination, he agreed that he first made a note of his conversation with the appellant on 13 July 2010 (almost four months later). He gave another statement to police on 4 January 2011 where he used the phrase "I'm pretty sure" when describing events that night. When he asked the appellant if he was the driver, the woman present was "butting in", but he had been to many accident scenes in his 30 years with the ambulance service and was "used to that, though". He agreed the appellant was lying down when he conducted the GCS assessment, But the appellant was able to move all limbs equally, was responsive to questions and was coherent. He had abrasions to his face and arms but no life-threatening injuries. As he had been involved in a high speed incident, he was transported to hospital. He informed a doctor at the hospital that although the appellant's GCS was 15, he had suffered a head injury. He did not accept defence counsel's contention that he was mistaken about the appellant telling him he was the driver of the car.
Mr Bradley Bisson gave the following relevant evidence. On 18 March 2010, he was drinking at the Victoria Hotel where he saw the appellant and Leah Gould. He left at closing time (around about midnight) to wait for a taxi. The next thing he remembered was waking up looking at the stars with people milling around and over the top of him. He was tangled up in a car and the back passenger seat door was open. His back was half on the ground and his legs were up in the car. Once he extricated himself he saw that it was the appellant's car. When he stood up, he saw the appellant and Leah Gould standing off to one side behind the car. The appellant came over and turned off the ignition. Mr Bisson got his bearings and realised he was only about 80 metres from his home. He was shivering with cold and decided to walk home. It had not really sunk in what had happened. He walked across the road to a grassed area but could walk no further. The ambulance officers arrived, placed him on a stretcher and took him to hospital.
The following night at the hospital he saw the appellant and Leah (also patients) and walking around. The appellant brought over a newspaper with a picture of the car accident. Mr Bisson asked the appellant what happened. The appellant responded, "We came around … you left the hotel. Came around the corner where the Mitch's Mini Mart is. And did a … burnout round the corner there 'cause there was a lot of smoke everywhere." The appellant told him that he "spun out or something from there and kept pretty much accelerating hard from there all the way to … where we stopped". Mr Bisson asked the appellant his speed and he responded that the last time he remembered "it was just going over the 100 mark". The appellant said he thought something hit the car as it went through the lights. He said he was driving while Leah was in the passenger seat; she "ended up over on top of him and he let go of the wheel to push her back … by the time he grabbed the wheel again it was, well, pretty much hitting the post".
In cross-examination, he agreed he had been given injections of OxyContin (a painkiller) and valium (a muscle relaxant) at the hospital and was on that medication at the time of this conversation with the appellant. He did not find the medication a "real lot of use". He denied that the appellant told him these things on the basis that this was what others had told him. He agreed that he did not know whether the appellant was driving the car at the time of the accident. He denied disliking the appellant. Abusive and threatening text messages, including death threats, were sent to the appellant from his phone. But he denied that he was responsible for most of them; they had been sent by his girlfriend at that time. He had a criminal history for offences from 1996 to 2010 including wilful damage to property in the night-time, obstructing police, going armed in public in a manner to cause fear, serious assault of a police officer, dangerous driving, assault with intent to resist arrest and breach of bail. He agreed that he had contacted a lawyer about making a claim against the appellant as the driver of the vehicle for damages resulting from injuries he received in the accident. He denied making false claims against the appellant to get back at him for causing his relationship with his former girlfriend to end. He did not tell the police about his conversation with the appellant at the hospital until 5 August 2010, 17 months after the accident.
Thomas Zernike, a police officer when the accident occurred, arrived at the scene at about 12.15 am on 19 March 2010. He saw Mr Bisson walking down the road wearing only one shoe and yelled out to him to stop. He seemed to be in a lot of discomfort and limping. Mr Bisson sat down in the gutter and Mr Zernike approached him. He identified a photograph (ex 7) taken from the rear driver's side of the car which showed the position of the appellant's vehicle when he arrived at the scene. He looked into the car and saw the driver's seat was pushed backwards. It was pushed back a lot further than what was depicted in the photograph ex 1.
Sergeant Russell Smith was a senior constable on 19 March 2010 when he was conducting patrols with another officer in a police vehicle at about 11.50 pm on 18 March 2010. They drove past a large group of people outside the Victoria Hotel including Mr Bisson and the appellant. Someone yelled out "taxi". About 100 metres away he saw Stafford Nemo and Chris Catchinda seated at a picnic table. They continued on their patrol. Shortly afterwards, he attended the accident scene and about half an hour later took the photographs which were tendered at trial.
Senior Constable John Curry attended the accident scene just after midnight and took on the role of the investigating officer. He obtained CCTV footage (ex 22) from the Victoria Hotel and the intersection near the accident scene which was played to the court. It is not suggested that this had any relevance to the issue of the identification of the driver. He also obtained statements from witnesses. Leah Gould (or Goulder) was at the scene when he arrived but was not really cooperative and did not give him a statement.
In cross-examination, he said that his first contact with anyone at the scene was when Mr Potts pointed out as the driver the person (the appellant) who was being treated by the ambulance officer (Mr Jardine). Police officer Curry then spoke to the ambulance officer in the presence of the appellant who was in the rear of the ambulance on a stretcher. Ms Gould was also in the ambulance.
After the prosecution closed its case and the judge and counsel had discussions in the absence of the jury, the judge informed the jury that there was insufficient evidence to prove that the appellant was adversely affected by an intoxicating substance. This meant that the circumstance of aggravation, that he was adversely affected by an intoxicating substance, had not been established. The case continued only in respect of the charge of dangerous operation of a motor vehicle. No endorsement, however, was made on the indictment to that effect.
The appellant gave evidence. His first memory of the events after the accident was waking up in a hospital bed with doctors, nurses and police officers and seeing double. Everyone was talking to him at once and he did not really know what had happened. He had no memory of the preceding events at the Victoria Hotel. He had a really sore head and found it difficult to swallow and talk. He was in the same hospital ward as Mr Bisson. He told him what others had told him, namely, that he (the appellant) was driving the car at the time of the accident. He told Mr Bisson that he was told the car was travelling at over 100 kph at the time. He reconstructed the information he gave Mr Bisson from what others had told him and from reading the newspaper. At the time of the accident he was friends with Mr Bisson and his girlfriend, but they had subsequently fallen out. He had received a series of text messages from Mr Bisson's phone.
In cross-examination, he said he could not recall turning off the ignition or removing the car keys after the accident. Mr Bisson told him he did this. He did not know if he had the car keys at the hospital. When asked if he would let someone else drive his car and do "donuts", he responded that he would let anyone with a licence, certainly a friend, drive his car. He probably would not let them do "donuts", "burn-outs", screech around corners or do 100 kph in a 60 kph zone. If they did, he would ask them to settle down and stop driving like that. If he had been drinking, he would allow a stranger with a licence to drive him home in his car. He had no memory of telling anybody at the accident scene to hide his car. When the prosecutor suggested that he was driving the car at the time of the accident, he responded, "No, I wasn't driving the car."
The competing contentions
Counsel for the appellant contends that when Messrs Nemo and Catchinda's evidence is considered together with Ms White's evidence the prosecution could not negative the reasonable possibility that there were four people in the car at the time of the accident. Ms White saw an unidentified, morbidly obese man walking away from the accident scene. She apprehended that he had been involved in the accident. Ms Burr was adamant that the appellant was in the back seat with his legs jammed behind the front seat and noted that the driver's seat was positioned in a way to suggest that a very large person had been in it. Her evidence as to the position of the appellant received some support from the evidence of Mr Potts. Although the appellant had made admissions to others that he was the driver, Mr Potts's evidence and the circumstances surrounding those admissions supported the appellant's evidence that he was merely repeating what others had told him and that he had no independent memory of driving the vehicle that night. A review of the whole of the evidence left open the reasonable hypothesis that the appellant was not the driver of the vehicle.
The appellant contends that upon an independent assessment of the evidence, both as to its sufficiency and its quality, this Court would conclude that the verdict was unreasonable.
The respondent contends that the following evidence in combination was sufficient to support the jury's finding of guilt. The appellant owned the car. He made admissions to the ambulance officer, Mr Jardine, and to Mr Bisson that he was the driver. The jury could accept that these admissions were true. The evidence of Mr Catchinda and Mr Nemo was of little weight because they had been drinking for some hours. It did not seem plausible that there were already four people in the car when they were invited to get in. The jury were entitled to reject Ms Burr's evidence as unreliable as she was only 16 at the time, had been traumatised by the accident, had changed her evidence and had dreams about it. The jury were also entitled to reject the evidence of the appellant. The jury could have accepted that the obese man at the scene observed by Ms White was not the driver of the car but another neighbour or onlooker. Mr Potts did not see him.
The respondent submits that, after giving proper weight to the jury verdict and the fact that the jury saw and heard the evidence, the evidence was both sufficient and of a quality to allow the jury to conclude that the appellant was guilty. Their verdict was not unreasonable.
Conclusion
The jury had a formidable task in deciding whether the evidence in this case was sufficient to find the appellant guilty of dangerous operation of a motor vehicle. There was no direct evidence as to who was driving the appellant's vehicle at the time. Mr Bisson had no memory of this. Ms Gould did not give evidence. The appellant claimed he had no recollection of his movements from before he arrived at the Victoria Hotel until he awoke in hospital after the accident. This critical element of the offence turned on circumstantial evidence. The jury could only convict if there was no reasonable hypothesis consistent with innocence.
It is common knowledge that some loss of memory following a head injury often occurs. Both Ms Burr and Mr Potts gave uncontested evidence that when they arrived at the scene the appellant was unconscious in the rear of the vehicle. The ambulance officer, Mr Jardine, told the doctor at the hospital that the appellant had suffered a head injury. The appellant's conversation with Mr Potts after leaving the vehicle was also consistent with him having suffered a head injury and with him having no memory of the accident and events immediately preceding it. There was therefore a real possibility that the appellant had no memory of the accident. His positive assertion in cross-examination that he was not the driver, when the prosecutor put to him the Crown contention that he was the driver, was probably only an unsophisticated reaction to the question. I apprehend that his evidence was still no more than that he had no memory of being the driver.
The fact that the appellant was the owner of the car was not in itself a compelling piece of evidence for the prosecution. Of more concern was the evidence of the ambulance officer (Mr Jardine) and Mr Bisson of his admissions to them. But these must be assessed in context. Mr Potts's evidence was that when the appellant got out of the car after having been unconscious he was unaware of the circumstances of the accident or who was driving. Ms Gould told him he was the driver. His admissions to the ambulance officer (Mr Jardine) may well have been him repeating what he was told by Ms Gould rather than a truthful and reliable confession or admission against interest based on his own knowledge. Mr Jardine was unlikely to have given in evidence the exact wording of his conversation with the appellant as he made no written record of it until about four months later. The weight to be given to Mr Bisson's evidence of the appellant's admissions is also limited. He had a lengthy criminal history, although none for dishonesty. Of more concern, threats against the appellant, including death threats, were made from Mr Bisson's phone. And he had a motive in terms of a personal injuries claim against the appellant to falsely implicate him as the driver of the vehicle. He did not tell police about this conversation until 17 months later. In light of Mr Potts's evidence and Mr Bisson's reference to the appellant having a newspaper at the hospital, it was not beyond the realms of reasonable possibility that his conversation with the appellant at the hospital was based on the appellant's reconstruction of events from what he had been told by others and read in the newspaper rather than his memory of them.
It seems to me there was a very real danger in this case that the jury may have reasoned that if Ms Gould, who was a conscious passenger in the car at the time of the accident, told the appellant he was the driver of the vehicle, then he must have been. The evidence was not admitted as truth of Ms Gould's statement. The trial judge did not warn the jury not to reason in this fashion.
Ms Burr's evidence, despite its weaknesses, strongly suggested that the appellant was the rear passenger seated behind the driver in the vehicle at the time of the accident. Mr Potts's evidence was not inconsistent with this.
It is true that Mr Catchinda and Mr Nemo had been drinking, but their evidence, when considered with the evidence of Ms White, Ms Burr and Mr Potts, leaves open the real possibility that there were four people in the car and that the appellant was in the rear seat behind the driver. It was therefore reasonably possible that the morbidly obese person Ms White saw leaving the accident scene as she approached it was, as she apprehended, involved in the accident and, indeed, the driver of the vehicle.
The appellant may have been the driver, but I am not persuaded that the jury's advantage in seeing and hearing the evidence is capable of resolving the real doubts I have on this issue: M v The Queen.[3] After reviewing the whole of the relevant, admissible evidence, I am finally persuaded that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. I would allow the appeal against conviction, set aside the verdict of guilty and instead enter a verdict of not guilty.
[3](1994) 181 CLR 487, 494.
ORDER:
1. Appeal against conviction allowed.
2. Verdict of guilty set aside.
3. Verdict of not guilty entered.
FRASER JA: I agree with the reasons for judgment of the President and the orders proposed by her Honour.
GOTTERSON JA: I agree with the orders proposed by the President and with her Honour’s reasons for making them.
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