R v Dickinson

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 152 of 2006

THE QUEEN
	v.
HAYDEN JAMES DICKINSON

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JUDGES:	CHERNOV, EAMES AND NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 APRIL 2007
DATE OF JUDGMENT:	29 MAY 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 111

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CRIMINAL LAW – Culpable driving causing death – Driving at excessive speed – Adequacy of directions on negligence – Causation – Requirement for Crown to establish causal connection between negligent driving and death – Verdict not unsafe and unsatisfactory – No inconsistency in evidence on whether deceased would have been struck if vehicle driven within speed limit – Crimes Act 1958 s 318(1), (2)(b).

Criminal law – Consciousness of guilt – Departing scene of accident – Where applicant earlier identified himself to police – Whether conduct amounted to flight to avoid apprehension – Whether evidence capable of demonstrating consciousness of guilt – Whether evidence is likely to demonstrate consciousness of guilt of lesser offences – Adequacy of directions on consciousness of guilt.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions

For the Applicant

Mr D A Dann

Michael J Gleeson & Associates

CHERNOV JA:

On 11 May 2006, the applicant, Hayden James Dickinson, who is now aged 32 years, was convicted in the County Court at Melbourne of one count of culpable driving causing death, having been found guilty by a jury on 24 June 2006 after a trial that lasted four sitting days. He was sentenced to four years’ imprisonment and a non-parole period of two years was fixed. The applicant now seeks leave to appeal against conviction on grounds to which reference will be made later.

Circumstances of the offence

The driving, that gave rise to the offence charged, occurred in Hoddle Street, Collingwood, at approximately 3.00 am on Sunday, 22 February 2004. At the time, the weather was fine, the road was dry, and the area was well lit. The applicant’s vehicle, then driven by him north along Hoddle Street at a fast speed, struck and killed a pedestrian, Peter McLean, who was attempting to cross Hoddle Street in an easterly direction against red traffic lights that were located a little to the north of Gipps Street. Briefly, the circumstances leading to the collision were these. At approximately 2.00 am that morning, the applicant, then aged 29 years, was driving in the vicinity of Chapel Street, South Yarra. Having seen, it seems, a group of five people unsuccessfully attempt to hail a taxi, he pulled up and offered to drive them home to Collingwood for $15. The members of the group were friends. On the previous evening, they had gathered at the house of Matthew Demarchi, in Wellington Street, Collingwood, from where, at 9.00 or 9.30 pm, they caught a taxi to a nightclub in South Yarra. It was shortly after they left the nightclub that they came into contact with the applicant in the way described. In response to his offer, Demarchi and the others, three males and a female, all aged 22 years, entered the vehicle, Demarchi sitting in the front passenger seat.

At the trial, each of the group gave evidence as to the applicant’s demeanour and his driving up to and at the time of the collision, including the speed that each estimated the applicant was driving just prior to impact. Each of these witnesses had consumed a significant amount of alcohol during the evening and the descriptions of their respective levels of sobriety variously ranged from “not intoxicated”, to “tipsy but definitely not drunk”, to “pretty happy”. One member of the group described himself as being “not completely drunk but pretty inebriated”.

According to Demarchi, the applicant proceeded down Chapel Street in a manner that was “a bit erratic, but it was nothing out of control”, consisting of abrupt acceleration and braking. This was confirmed by other members of the group, including Ivan Clarke, who said that he thought that the applicant’s driving in this respect was “a bit strange”. Adam Isaacs, who was seated in the back seat directly behind Demarchi, said that the applicant was “tailgating” vehicles, while Cameron Box said that there was a lot of stopping and starting. Demarchi said that the applicant had mentioned that he had not slept for three days. While driving, the applicant was playing music on the CD player and it seems that at least on one occasion he threw a CD out of the window. When he turned off Chapel Street and into a side street that had speed humps, the applicant continued driving in an erratic manner. Demarchi said that the applicant drove over the first few speed humps at about 60 km per hour, but progressively sped up to 80-100 km per hour. He said that the applicant’s driving caused him some alarm. Ivan Clarke also said that the applicant was driving along that stretch of road at about 100 km per hour. Isaacs estimated the speed to be above 50 km per hour; it was, he said, “faster than I have ever been over a speed hump”. In any event, the speed was such that it made Melinda Fajerman, who was half-lying over Isaacs (to conceal the fact that there were five passengers in the car) “very nervous” and caused her back to hit the roof. It also caused some of the other passengers’ heads to hit the ceiling of the car.

The applicant made an illegal right-hand turn into Hoddle Street, causing a taxi driver to sound his horn, and then proceeded along Hoddle Street towards Clifton Hill at, by all accounts, a fast speed. Demarchi thought the applicant was driving between 80 and 100 km per hour; Isaacs thought 100 km per hour, while Clarke estimated he was travelling at 120 km per hour. Fajerman said the applicant was driving at or above 110 km per hour. Of these witnesses, only she maintained that she saw the speedometer. The vehicle was travelling north along Hoddle Street, in one of the lanes towards the right hand side, although there was differing evidence whether it was the third, fourth or fifth lane from the left. Evidence was also given by two witnesses who were passengers in a taxi that was travelling along Hoddle Street in the same direction as the applicant’s vehicle. One of the witnesses said that he saw the applicant’s vehicle overtake them and swerve to the right at a considerable speed. Another passenger said that she saw the applicant’s vehicle being driven “erratically”. She said that the applicant’s vehicle drove past them very fast and then changed across three lanes without indicating. This witness also said that, a short time later, she observed the applicant’s vehicle that was stopped at traffic lights to the left of the taxi accelerate rapidly when the lights changed and cut across three lanes to the lane furthest to the right. As to the speed of the applicant’s vehicle, one of the witnesses from the taxi said that it was travelling at approximately 100 km per hour when it changed across three lanes without indicating. The other witness from the same taxi said the applicant was doing 100 km per hour “if not a little bit more”.

As the vehicle approached the intersection of Gipps Street, where the traffic lights signalled green, the deceased walked out on to Hoddle Street from its western side, against a red light. It appears that, as he was about half way across the road, he hesitated momentarily, probably because he saw oncoming traffic, but then continued by running forward and collided with the front-left hand side of the applicant’s vehicle. The evidence of the applicant’s passengers was that, just prior to the collision, the applicant first took his foot off the accelerator but then accelerated, it seems after the deceased had hesitated, with the result that both accelerated at the same time. The applicant braked and swerved to the right in an attempt to avoid the deceased but was unable to do so.

After the collision, Demarchi, Isaacs and Box ran to the scene of the impact and called an ambulance. The applicant also went to the scene and became upset and agitated. He asked Issacs “what should I do”, to which the latter replied, “you can run or you can go”. The applicant replied that he would not run. It appears that the applicant’s question was preceded by the statement “It’s not my fault, is it … he should not have been on the road”. Fajerman said that he said to her “I wasn’t speeding, was I?” A witness who was travelling along Hoddle Street said that she observed a distressed male who she believed to be the driver of the car that struck the deceased yelling that he had not seen the deceased.

The applicant remained at the scene and was present when police and the ambulance arrived. By all accounts, he was distressed and emotional. He indicated to police that he was the driver of the vehicle and, when asked how the accident occurred, said that he was driving along when the deceased emerged from nowhere and he hit him. The applicant provided his details to police and underwent a preliminary breath test which was clear. A little later, he approached Detective Senior Constable Kelly, indicating to him that he was the driver, and asked him about the condition of the pedestrian. He was told that the pedestrian had died. About ten minutes later the applicant left the scene. At first he walked north along Hoddle Street and turned into Hood Street and then west to Islington Street, which runs parallel to Hoddle Street. Witnesses gave differing evidence as to the pace at which the applicant walked away from the scene. Isaacs, for example, said that the applicant did not look like he was attempting to evade the police but gave the appearance of wandering off in shock. There was police evidence, however, to the effect that the applicant walked away briskly and that the police followed him. A paramedic who attended the scene said that he saw the applicant running north up Hoddle Street, being pursued by two police officers. According to the police, when the applicant saw the two police officers coming after him in Islington Street, he broke into a sprint towards Gipps Street. The police had to sprint after him, and eventually apprehended him at or about the corner of Islington and Gipps Streets.

The applicant was charged with culpable driving causing death pursuant to s 318(1) of the Crimes Act 1958. The charge alleged that the culpable driving fell within s 318(2)(b) of the Act, namely that, at the time of the collision, he drove negligently, that is to say, he failed “unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case”. The particulars of negligence that were relied on were driving at an excessive speed at the time of the impact and driving in an erratic manner. One paramedic who attended the scene and inspected the car said that he was surprised by the amount of damage it sustained, from which he concluded that the vehicle was travelling very fast upon impact. Another paramedic also gave evidence that, in his 18 year experience, the damage to the car was consistent with a high speed impact. Senior Constable Glen Urqhuart, an investigator with the Major Collision Unit, attended the scene at about 5.30 am on the day in question in order to determine the speed at which the vehicle was travelling prior to the collision. He determined that the “throw-distance”, being the distance the deceased was thrown from the point of impact, was 47 metres and the damage to the vehicle was consistent with a high speed impact. The skid marks produced by the applicant’s vehicle were 21 metres in length pre-impact and 32.5 metres post impact. At 7.00 am that morning, he conducted a “skid –test” in a police vehicle to calculate the speed of the vehicle and concluded that the minimum speed at which it was travelling at the time that the brakes were applied was 109 km per hour and that the speed upon impact was 89-90 km per hour. It was the Crown case, said his Honour in his charge to the jury, that if the applicant had been driving within the speed limit just before the collision, the collision would not have happened at all. I will come back to this matter.

The deceased was Peter McLean, from New Zealand, who was staying at a hotel in Gipps Street. On the previous evening, before having dinner with his travel companion, Christopher Barry, he had been out shopping and sight-seeing. They had returned to the hotel and were intending to go out later that evening to a hotel in Collingwood. At approximately 2.00 am, Barry attempted to locate the deceased but could not find him so he headed out by himself. As I have said, the evidence indicated that the deceased was attempting to cross Hoddle Street against a red light. It seems that he walked out and then sought to dash across the road. At about halfway he hesitated, but then he accelerated and was struck by the applicant’s vehicle. A toxicological analysis of the deceased revealed that he had a blood alcohol content of .21 per cent.

I now turn to consider the respective arguments in relation to the grounds that were argued before us, and I do so broadly in the order in which they were pressed for the applicant.

Ground 2: consciousness of guilt

The first ground that was argued was ground 2. Under cover of it the applicant claimed that his trial has miscarried because evidence of his departure from the scene of the accident, and his subsequent apprehension by the police, was left with the jury as being capable of demonstrating consciousness of guilt on his part of the offence charged. His Honour essentially explained to the jury that it was the Crown case that this evidence established that flight on his part was undertaken in order to avoid apprehension and that his consciousness of guilt could be inferred from that conduct. It was the applicant’s case on appeal, however, that such evidence was incapable of giving rise to the inference of consciousness of guilt on his part of the offence charged. Mr Dann, for the applicant, pointed out that the trial judge was clearly troubled by the Crown’s reliance on the applicant’s departure from the scene as showing consciousness of guilt. Such concern, it was put, was well founded.

In support of the claim that the evidence in question was incapable of giving rise to the inference of consciousness of guilt as the Crown claimed, it was first argued that the evidence of the applicant’s movements after the collision, taken as a whole, was inconsistent with flight on his part. It was pointed out that, after the collision, he stopped the car, ran back to check on the welfare of the deceased, remained at the scene of the collision for some time and voluntarily approached the first police members to attend. He told the police he was the driver in question and supplied to them his correct name and address and took part in a preliminary breath test. Moreover, it was said, the evidence made it plain that the applicant was then in a highly distressed state. It was pointed out that the Crown claimed that what prompted the applicant’s so called flight was his being told by Kelly that the pedestrian was dead. Such a claim, however, was misconceived, it was submitted. The evidence made it more likely than not, it was said, that the applicant knew before he spoke with Kelly about the matter that the victim had died as a result of the collision. Counsel pointed to the evidence of the two passengers who said that when they saw the body of the pedestrian shortly after the collision they assumed that he was dead. Their evidence was, said Mr Dann, that the applicant saw the body of the pedestrian at about the same time as those passengers, so that it may be fairly assumed that he had drawn the same conclusion about his death. Thus, it was argued that Kelly’s answer to the applicant’s question would not have been such as to prompt him to flee. Consequently, it was submitted, when the applicant’s departure from the scene is considered in the context of the whole of the evidence, it is apparent that it is not capable of being characterised as flight.

It was next said that even if the conduct in question could be properly characterised as flight, it was nevertheless incapable of giving rise to the inference of consciousness of guilt by the applicant of the crime charged. Mr Dann argued that looking at the totality of the applicant’s conduct after the collision, it could not be said that his departure sprang from his fear of being apprehended as the Crown alleged because he was conscious of his guilt of the offence in question. Counsel submitted that the worst that could be said about the applicant’s departure was that it was undertaken because he felt guilty that his driving and excessive speed caused or contributed to the death of the pedestrian. Such conduct, it was said, does not amount to culpable driving. Counsel further argued that the applicant may also have left the scene because of his apprehension of guilt of lesser offences, such as dangerous driving or careless driving. Thus, it was claimed, the impugned conduct could not be said to give rise to the inference of consciousness of guilt of the offence charged any more than guilt of lesser offences, so that leaving the evidence of his departure to the jury on the basis that it was capable of establishing consciousness of guilt of the offence was a material error on his Honour’s part that caused the trial to miscarry. It was submitted that the finding of the Court in R v Ciantar[1] left open[2] the possibility that an offender’s conduct may be equally consistent with his or her realisation of guilt of lesser offences as it was of the offence charged. In such circumstances, the Court said, “the conduct is incapable of giving rise of consciousness of guilt of the offence charged”. That is the position here, so it was claimed.
[1][2006] VSCA 263.
[2]At [40].

In Ciantar, the Court accepted that evidence of flight can only give rise to the inference of consciousness of guilt if the jury were satisfied that it sprang from a realisation of guilt of the crime charged as opposed to guilt of a lesser offence. It was said that where, as here, consciousness of guilt – which is an implied admission of guilt – is only one of the circumstances on which the Crown relies to establish guilt, just as in the case of any other form of circumstantial evidence on which the Crown might rely, the existence of consciousness of guilt may be established without applying any particular standard of proof.[3] Nevertheless, to be satisfied that the post offence conduct gives rise to such an inference, the jury must be satisfied that there is no other explanation for the conduct that is reasonably open on the facts.[4] Thus, it was accepted in Ciantar[5] that there may be cases where the post offence conduct is equally consistent with consciousness of guilt of two or more offences or is otherwise intractably neutral and that, in such circumstances, an inference cannot be drawn from the post offence conduct that the offender had a consciousness of guilt of any particular offence. But, as their Honours made plain, that will not usually be so particularly where the impugned conduct is considered in the context of the totality of the evidence. The Court said:[6]

“… even allowing that a possible explanation of the applicant’s post-offence conduct was that he was conscious that he had committed one or more of the lesser offences, as opposed to the offence charged, it does not follow that the post-offence conduct could not be left to the jury as something which was capable of supporting an inference that the applicant was conscious that he committed ‘the offence charged’”.

[3]At [45]-[47].

[4]At [78], [87].

[5]At [40].

[6]At [39].

In that case the applicant was charged with culpable driving causing death whilst under the influence of alcohol contrary to s 318(1) and (2)(b) of the Crimes Act. It was argued on his behalf that evidence of his departure from the scene could not be used to establish consciousness of guilt of culpable driving as distinct from any of the lesser offences. This argument was rejected because, although it may have been possible that the applicant’s impugned conduct was explicable on the basis that he was conscious of having committed a lesser offence, it did not follow that the conduct was not capable of giving rise, in the context of the totality of the evidence, to the inference of consciousness of guilt of the offence charged.

As I have said, it was recognised in Ciantar that evidence of post offence conduct could not be left to the jury as going to consciousness of guilt unless the judge was satisfied that, in the context of the totality of the evidence, the conduct is capable of demonstrating such consciousness of guilt.[7] The Court said[8]:

“… if an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt. But where the judge is satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events so identified is capable of demonstrating such a consciousness of guilt, the post-offence conduct should be left to the jury to determine whether it has that effect. Similarly, where evidence of consciousness of guilt, which although by itself equally consistent with consciousness of guilt of … another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence.”

[7]At [71].

[8]At [72]; citations omitted.

The trial judge in this case, as the applicant submitted, had concerns as to whether the evidence of the applicant’s departure from the scene was capable of giving rise to the inference of consciousness of guilt on his part. Understandably, in the circumstances, his Honour asked the Crown whether it really wanted to “run flight and consciousness of guilt given all the evidence we’ve heard”. At one stage of the discussions his Honour said to the prosecutor that he would say to the jury that it might be very difficult to find that they could be satisfied beyond reasonable doubt that the only reason that the applicant left the scene could “possibly be treated as an inference of guilt”. It is plain enough that his Honour then thought that the Crown’s case on consciousness of guilt was not strong. Nevertheless, he came to the conclusion, as I have said, that, in the context of the totality of the evidence, it was capable of giving rise to that inference. And, in my view, his Honour made no material error in coming to that conclusion.

Evidence of post offence conduct may be properly regarded as being incapable of demonstrating consciousness of guilt if, for example, it is “intractably neutral” or if an innocent explanation for it is so inherently likely that a jury could not properly regard the conduct as evidence of guilt.[9] I consider that the evidence here relating to the applicant’s flight does not fall into that category. It is true that the evidence plainly established that, for some time after the collision, the applicant remained at the scene and fulfilled his obligation to provide police with relevant information. But there was also evidence on which the jury could have concluded that he was concerned, if not anxious, to ascertain, or have confirmed, whether the pedestrian had died and that, once he found out that he had, the pressure on him was such that he left the scene to avoid apprehension. That such motivation may have been inconsistent with common sense is not determinative of the matter. Importantly, the evidence showed that once he knew that the police wanted to speak further with him about the accident, he essentially tried to run away from them. These circumstances, it seems to me, were capable of being construed as amounting to flight and as demonstrating consciousness of guilt. The evidence of those matters and of the applicant’s driving shortly before the accident at a speed that was plainly excessive, and showing off to the passengers about his driving – veering across Hoddle Street and periodically slowing down and then accelerating to a significant speed – was capable of giving rise to the conclusion that his attempt to run away sprang from his realisation of his guilt of the offence with which he was charged.
[9]See Ciantar at [72].

That the impugned conclusion was reached by a very experienced trial judge is not without relevance in this regard. And the applicant’s experienced counsel also must have been of the view that the totality of the evidence was capable of demonstrating consciousness of guilt on the part of the applicant of the offence in question. There was no suggestion by him during the course of discussions between his Honour and the Crown about the matter, or at the end of it, that the totality of the evidence was incapable of giving rise to the inference of consciousness of guilt on the part of the applicant as the Crown contended.[10]
[10]See, for example, R v Clarke and Johnstone [1986] VR 643 at 662 per Crockett, McGarvie and Southwell JJ; R v Gallagher [1998] 2 VR 671 at 681 per Brooking JA; and R v Wright [1999] 3 VR 355 at 356 per Phillips CJ and Charles JA and 360-361 per Callaway JA.

In the circumstances, I consider that ground 2 should fail.

Proposed New Ground

Mr Dann next sought leave to add a further ground alleging that his Honour’s direction on consciousness of guilt was materially inadequate. No such ground was articulated in the applicant’s latest grounds of appeal. Nevertheless, given that the application was not opposed by Mrs Quinn, for the respondent, we granted Mr Dann leave to argue the proposed new grounds, reserving the decision as to whether to permit the amendment sought until the delivery of the reasons in this case.

The proposed ground, as formulated by counsel, alleged that his Honour erred in his directions on the issue of consciousness of guilt in that he failed to direct the jury to consider the possibility that the applicant fled the scene because:

(a)he may have wrongly believed himself to be guilty (for the death of the pedestrian);
(b)he believed that he may have been involved in some lesser form of driving offence than culpable driving.

It was essentially said that if the jury had been given such a direction and if they came to the conclusion that the applicant left the scene for one or other of the above reasons, they could not properly have concluded that the applicant’s flight sprang from his consciousness of guilt of the offence. Thus, it was said, the applicant was effectively deprived of a fair trial. Counsel submitted that in relation to the first matter, on which no direction was given, his Honour should have directed the jury in accordance with the directions set out in the Victorian Criminal Charge Book that relates to consciousness of guilt and flight. The relevant terms of the proposed model charge are these:
“… you must be satisfied that the cause of the accused’s flight was the accused’s desire to escape the consequences of this crime – not to escape the consequences of some other wrongdoing, or the problems which the accused’s life then contained, such as, a fear of being wrongly accused of this crime.
Were you satisfied beyond reasonable doubt that the accused did flee and did so because of a consciousness of guilt of this crime, 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 [herself] guilty. If you are able, on the whole of the evidence, to exclude that possibility beyond reasonable doubt, evidence of flight becomes evidence of this guilt.”

As to the second claimed omission, counsel argued that his Honour was required to draw to the jury’s attention the possibility that the applicant engaged in flight because of his fear of wrongdoing that did not amount to culpable driving, such as dangerous driving or careless driving, and that if they concluded that that was the case they could not properly take the view that the applicant’s flight sprang from his consciousness of guilt of the offence charged.

I consider that there is nothing in the proposed ground and, accordingly, I would refuse to grant leave to make the amendment sought. It is true that ordinarily consciousness of guilt need not be established to any particular standard of proof. But in order to avoid the possibility of unfairness it has been laid down that the jury must be directed as to the use to which they may properly put the offender’s post offence conduct and the limited circumstances in which they could find that it gives rise to an implied admission of guilt. Thus, for example, Winneke P pointed out in R v Nguyen[11]:

“The probative strength of post-offence conduct … will depend upon many factors including the circumstances in which the conduct occurred and the issue in proof of which the evidence is tendered. If it is open to be used by the jury for the purpose of drawing an inference as to the state of the accused’s mind at the relevant time, the conduct will have to be assessed in the light of the probabilities. But, because such evidence is capable of being misused by the jury, the interests of a fair trial to the accused require … a careful direction from the trial judge … Properly directed, the jury should … have been told that conduct such as that relied upon by the Crown could stem from reasons other than realisation by the accused of his guilt of the crime charged, what those other reasons might be, and that, if they accepted that a reason of that kind was the explanation for the conduct, they should not use the evidence as probative of guilt.”

[11](2001) 118 A Crim R 479 at 489-490; footnotes omitted. This passage was specifically approved by Kirby J in Conway v The Queen (2002) 209 CLR 203 at 237.

Similarly in Edwards v The Queen[12] the majority said this, in the context of the relevant post offence conduct being a lie:

“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because [of a realisation of guilt of the offence charged].
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.”

See also R v Ciantar[13]. Relevantly, for present purposes, the Court in that case said:[14]
“Trials which concern a one count presentment with lesser included offences, or a multiple count presentment or a case where the evidence adduced to prove a particular charge discloses the possible commission of other offences all raise the question of whether the post offence conduct relates to a particular offence charged or to “other offences”. Accordingly, in such cases the jury may have to be alerted to the fact that, before they can treat the post-offence conduct or lies as proof of guilt of the offence they are then considering, they must be satisfied, having regard to all the evidence, that a consciousness of guilt of such “other offence” does not provide a possible reasonable explanation for the lies.”

[12](1993) 178 CLR 193 at 210-211; footnotes omitted.

[13][2006] VSCA 263 at [74]-[87].

[14]At [78]; emphasis in original.

In examining whether the impugned charge is materially deficient in the way alleged, it must be borne in mind that the charge cannot properly be read independently of the context of the conduct of the trial and must be construed in light of the issues raised by the parties.[15] Thus, for example, in Doggett v The Queen[16] Gleeson CJ said: “Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties”.[17] And in Zoneff v The Queen, Kirby J said:[18] “There could be few developments more destructive to the character of a jury trial … than a minute and pernickety attention to the words of the judge’s charge, divorced from their context and expressed purposes. Legal accuracy is demanded. But in most cases, particular verbal formulae are not”. For completeness, I note that, unsurprisingly, the introduction to the Charge Book states: “The precise way in which these documents will be used remains at the judge’s discretion, and it is not anticipated that the documents will be used without modification.”
[15]R v Hartwick (2005) 14 VR 125 at 146.
[16](2001) 208 CLR 334 at 346.
[17]See also R v Gill [2005] VSCA 70 at [34] per Charles JA.
[18](2000) 200 CLR 234 at 256.

I consider that, in light of the way the case was presented to the jury, his Honour’s charged complied with the requirements in Edwards and the other relevant cases dealing with the proper direction that must be given in relation to the Crown’s claim that the offender’s post offence conduct sprang from consciousness of guilt of the offence. More particularly, I consider that it was made plain in the charge that if the applicant’s impugned conduct was motivated by reasons other than consciousness of guilt of the offence charged, such as by wrongful apprehension of guilt or apprehension of a lesser offence, such evidence could not be relied on to convict the applicant. So far as is relevant, the learned trial judge directed the jury that they must be satisfied that the applicant, in fact, fled and :

“that … the only cause of [the flight] was his desire to escape the consequences of this crime and was not for some other reason or purpose such as to a fear of being wrongly accused of something, or a panic or of emotion or whatever other reason there might be for fleeing.
Were you satisfied beyond reasonable doubt that he did flee the scene and that he did so only because of a consciousness of his own guilt of this crime, then you could use the evidence of his own consciousness of guilt as evidence of actual guilt, but you should be careful to consider the possibility that he may have had many reasons for leaving the scene, some of which have been dealt with, panic, believed that he would be charged wrongly with an offence when his state of mind was but it was not my fault, the fellow ran out, I did not have a chance, a panic or what was it put, unrestrained and uncontrollable emotion or whatever. Unless you can exclude all those and that type of reason for leaving the scene, so that you are satisfied beyond reasonable doubt that his only reason for leaving the scene was consciousness of guilt, then you cannot use the argument in the way that Mr Heath has urged upon you.
So in dealing with this Crown contention you must consider all the evidence which relates to his emotional state, what he did, what he didn’t do after the collision and so on, that includes the evidence that when his car stopped he immediately went back to the person who was on the road, that he continually stated his view that it was not his fault, that the deceased ran out in front of him, leaving him no time to do anything, that he was greatly distressed, upset, et cetera, that he did not immediately leave the scene in an endeavour to avoid identification and apprehension, that he remained in the vicinity until the ambulance and the police arrived, that he actually approached the policemen, identified himself, gave name and address, took the preliminary breath test and so on, that he was especially when he heard the man had died, that he was seriously agitated, pacing up and down, and so on and that sort of evidence.
Now it is a matter for you but you may have some difficulty thinking in all of those circumstances that his reason for leaving was only an attempt to avoid identification and apprehension, and unless that was his only reason in your mind, then you cannot use this argument that has been put forward by the Crown.”

In my view, as I have said, it would have been plain from this direction that the jury were required to consider whether the applicant fled for reasons such as those identified by Mr Dann and that if they concluded that this occurred they could not use the fact of the flight to convict the applicant of culpable driving.

In the circumstances, therefore, I consider that the ground would fail and consequently, I would not grant leave to make the amendments sought.

Ground 3: gross negligence

It was next argued, under cover of ground 3, that the trial miscarried because his Honour failed to direct the jury as to the elements of the charge of culpable driving by gross negligence by reference to the terms of the legislation. It was said that, although his Honour directed the jury on the meaning of negligence in s 318(2)(b) by following the form of the charge on this issue set out in the reasons of Charles JA in R v De’Zilwa,[19] he failed to tell them what the legislation said about the matter. It was contended that by not referring to the terms of the section the judge failed to identify sufficiently the offence that had to be proved by the Crown. In my view, this ground is also without merit.
[19](2002) 5 VR 408 at 423.

Section 318(2)(b) provides that “a person drives a motor vehicle culpably if he drives [it] … negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all of the circumstances of the case ...”. In De’Zilwa Charles JA, with whom Winneke P, Ormiston JA and O’Bryan AJA agreed, said:

“… where … a person is charged with culpable driving under s 318(2)(b), the judge should direct the jury that the jury are required to find that the driving of the accused involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, and which involved such a high risk that death or serious injury would follow, that the driving causing death merited criminal punishment. Consistently with Lucas, a reference to and comparison with civil negligence would, I think, also be helpful to the jury. With the consent of my colleagues, I have consulted the President as to the form of this suggested direction, and he has indicated his agreement with it.”

That such a direction is appropriate and sufficient in a case such as the present has been recognised in subsequent cases[20].

[20]See, for example, R v Heron [2003] VSCA 76 at [16] per Buchanan JA (with whom Vincent JA agreed); R v Mitchell [2005] VSCA 304 at [12] per Buchanan JA; and DPP v Johnstone [2006] VSCA 281 at [18] per Warren CJ.

Without restating the whole of his Honour’s charge on this matter, it is plain enough that it fell within the terms of the charge laid down by Charles JA. Thus, his Honour explained, in helpful and clear terms, the distinction between civil negligence and the criminal negligence contemplated by the provision, and what the Crown must establish in order to make out the latter. In this respect, his Honour’s explanation, as I have said, mirrored the De’Zilwa charge. His Honour then went on to relate the evidence to the requirements of the provisions.

As I have indicated, the applicant did not contend before us that his Honour failed to direct the jury in terms of the direction in De’Zilwa. Rather, it was said, such a direction was not sufficient. Counsel argued that the charge should have also referred to the very terms of s 318(2)(b). It was pointed out that prior to De’Zilwa the accepted direction on this issue was confined to highlighting to the jury the terms of the provision and, it was said, the direction set out by Charles JA did not replace that requirement. It was claimed that what Charles JA said in that regard was intended to be an additional requirement of the charge and not a substitution for the direction that referred to the terms of the legislation. Thus, it was submitted, his Honour’s failure to refer to the language of the provision denied the applicant the benefit of the direction to which he was entitled, thereby bringing about a miscarriage of justice.

But the whole point of the carefully worded direction in De’Zilwa was to explain to the jury the requirements of s 318(2)(b). Thus, by giving such an explanation to the jury the judge effectively tells them, in meaningful terms, the elements of the statutory offence and what the Crown must establish in that regard. Although an additional reference in the charge to the words of the legislation would not amount to a misdirection, it would not add anything to the substance of the required explanation.

Hence, I consider that, in light of his Honour’s comprehensive charge on this issue, no miscarriage of justice occurred by reason of his Honour’s failure to refer the terms of the legislation to the jury. A like view must have been taken by the applicant’s experienced trial counsel who did not take an exception to his Honour’s charge on this issue.

Ground 4: causation

It is plain that, when instructing the jury in a matter where culpable driving is said to have been caused by gross negligence for the purposes of s 318(2)(b) of the Crimes Act, the judge must tell the jury that the prosecution is required to establish a causal connection between the driver’s gross negligence and the victim’s death.[21] Moreover, in the charge dealing with this matter, the judge must identify the relevant facts and relate them to the issue of causation. Under cover of ground 4, it was argued that his Honour’s charge on this issue was materially deficient because he did not sufficiently deal with the requirement of causation but focused instead on general negligence to the exclusion of a proper examination of the causation issue. It was also said that, in his charge, his Honour failed to relate the relevant evidence to the causation issue. Thus, it was said, there was a risk that the jury would not have treated causation as being a critical aspect of the case that had to be established by the Crown.
[21]See Ciantar at [30] and R v Leusenkamp [2003] VSCA 193.

It was argued that, in this respect, the situation here was similar to that in R v Heron,[22] in that the charge steered the jury away from treating causation as a relevant consideration. But as Mr Dann acknowledged, in Heron the jury were effectively told that causation was not in issue, hence it is unsurprising that Buchanan JA in that case said[23] that “there was a real danger that the jury may have thought that the only issue in the case was whether the applicant’s driving was negligent to a gross degree, and that if they found that it was, they could assume that it was a substantial cause of death an injury. In fact, the jury were also required to decide the live issue whether, if the speed of the Commodore was excessive, that circumstance was a substantial and operative cause of the accident.” Here, on the other hand, the jury were not told that causation was not an issue. To the contrary, they were informed at the outset of the relatively short charge that it was a live issue between the parties and the Crown was required to establish causation. In the circumstances I consider the Heron does not assist the applicant.
[22][2003] VSCA 76.
[23]At [23].

It was nevertheless claimed that the dearth of reference in the charge to causation, and to the evidence relating to it, when compared with the emphasis on the issue of speed, had the effect of unduly undermining the importance of causation as an issue in the case. Mrs Quinn, however, submitted that his Honour’s charge on causation was more than adequate. It was pointed out that at the very beginning of the charge his Honour told the jury that causation was an issue between the parties and that it was an element of the offence that the Crown had to establish to the required standard. Counsel then pointed to his Honour’s charge where he summarised defence counsel’s argument on causation, including the reference to the evidence on which the applicant relied such as to highlight that the true cause of the accident was the deceased’s conduct and appearance. Thus, his Honour referred the jury to the submission of the applicant’s trial counsel that the deceased crossed the road against the red light, wore dark clothes and hesitated before dashing to get across the road. It is true that his Honour also highlighted the evidence of the speed at which the applicant’s motor vehicle was driven at the relevant time and said that this was a principal issue in the case, but this was accompanied by his Honour’s warning that the dispute between the parties was not “just about speed”. And as Eames JA pointed out in the course of argument, his Honour went on later to put this in context of the applicant’s case, as to what was “the real cause of this unfortunate collision”. It was the defence case, said his Honour, that it was the deceased “who was there, in dark clothing, affected by alcohol, ran across, against the red light, into the path, did all that unexpectedly and gave Mr Dickinson virtually no chance to avoid him, but nevertheless, Mr Dickinson did, at that point, do his best to avoid him, he braked, he veered or moved to the right to try to avoid him, but he really had no chance because it happened so unexpectedly and so quickly”.

It seems plain enough that the jury were told by the judge that causation was an issue as to which they must be satisfied beyond reasonable doubt before they could find the applicant guilty of culpable driving. It is also apparent that his Honour pointed out the applicant’s case by reference to the evidence concerning the state of the deceased’s appearance, sobriety, crossing against the red light and other relevant matters. In the circumstances, I consider that there is no real risk that the jury did not appreciate that causation was a live, and important, issue between the parties and that this had to be established by the Crown to the requisite standard.

Ground 1: unsafe and unsatisfactory

Prior to the hearing of the application before us the applicant intimated that ground 1, which alleged that the verdict is unsafe and unsatisfactory, would be abandoned. At the hearing before us, however, counsel sought to withdraw from this position and, in the result, we gave him leave to do so. With his customary frankness, Mr Dann said that the only basis on which it was contended that the verdict is unsafe and unsatisfactory is that there seemed to be a conflict in the evidence of the Crown expert as to whether the deceased would have been struck by the applicant’s vehicle had it been travelling within the speed limit. It was said that in one part of his evidence, Urqhuart, the Crown expert on this issue, said that the collision would have occurred in any event, albeit at 31 km per hour, while in another part of his evidence, it was claimed, the witness said in cross-examination that, had the applicant been travelling at 70 km per hour when he saw the pedestrian, he would have been able to stop his vehicle prior to the collision.

In my view, however, it is apparent that on a fair reading of the evidence the conflict for which the applicant contends does not exist. Relevantly, in his evidence in chief, Urqhuart said that, had the applicant been travelling at 70 km per hour when he first braked and had the vehicle struck the pedestrian, this would have occurred at 31 km per hour instead of 89 km per hour. The evidence was based on the witness’s simple calculation of the distance over, and the speed at, which the applicant’s vehicle would have travelled from the actual point at which he applied the brakes (as evidenced by the skid marks), assuming that he was then travelling at 70 km per hour, to the point of collision. In his cross-examination, however, Urquhart dealt with another matter, namely, whether there would have been a collision at all had the applicant applied the brakes of the car at 70 km per hour at the point at which he first saw the pedestrian. By reference to driver reaction time between when

the applicant first saw the pedestrian and his breaking, Urqhuart concluded that the applicant would have stopped prior to the collision. He explained that this is so because, based on the calculation of the distance a vehicle will travel in one second when travelling at 70 km per hour – 19.4 metres – even at the slower reaction time of 2.5 seconds between perception and response (the standard being 1.5 seconds), the applicant, all things being equal, would have started breaking 45 metres before the skid marks show that he did. At the faster reaction time of 1.5 seconds the applicant would have started braking 75 metres further south of the skid marks.

Thus, there is no relevant conflict between the two pieces of evidence. It was well open to the jury to take the latter evidence as establishing that, because the speed of the applicant’s vehicle was approximately 110 km per hour when he first saw the pedestrian, the brakes were first applied at a point some distance further north from where he first saw him than would have been the case had he been travelling at 70 km per hour at that time. In the latter situation there would have been a materially greater distance over which the braking would have operated, thus bringing the car to a halt before the collision.

In the circumstances, I think that this ground should fail.

Thus, notwithstanding Mr Dann’s comprehensive argument, I would refuse the application for leave to appeal.

EAMES JA:

I have had the advantage of reading in draft the reasons of Chernov JA and Nettle JA, and I gratefully adopt the analysis of the issues and evidence set out in the judgment of Chernov JA. Whilst I agree that the complaints raised under grounds 1, 3 and 4 should be rejected, substantially for the reasons given by Chernov JA, I have reached a different conclusion to that reached by their Honours with respect to the issues raised under both ground 2 and the proposed new ground, concerning consciousness of guilt. In the result, I would grant the application for leave to appeal

against conviction and allow the appeal, but direct a re-trial.
Ground 2 and proposed new ground 5.

The learned trial judge, one of the most senior judges in the State, expressed considerable doubt whether the evidence of flight was capable of supporting an inference that the accused had a consciousness of guilt of the offence of culpable driving. In the end, his Honour accepted that it was capable of bearing that inference. His Honour’s concern was understandable, and I find it difficult to understand why in the circumstances of this case a prosecutor would have pressed the judge to permit it to be so used.

There was an abundance of evidence concerning the speed of the car shortly before and immediately prior to impact. The evidence was unanimous that the applicant had been exceeding the speed limit but contradictory as to the extent to which the speed limit was exceeded. As I shall discuss, the evidence of flight was incapable of resolving that dispute. Thus, there was little, if any, probative value in the flight evidence, when closely analysed, whereas there was a very high likelihood that the evidence would be given inappropriate weight by the jury, and a considerable risk that an appeal court would later conclude that the admission of the evidence for this purpose caused the trial to miscarry as, in my opinion, did transpire.

In my view, the evidence was not capable of supporting the inference sought. If I am wrong in that conclusion – and my brother judges have concluded that I am –then the judge ought to have excluded it on the basis that its prejudicial effect far outweighed its probative value[24], but no application was made to the judge on that basis.
[24]As was the approach adopted by White J in R v Bridgman (1980) 24 SASR 278, albeit that there was the additional factor in that case that the accused man could not disclose what he claimed to be the alternative, innocent, explanation for flight without disclosing to the jury his prior convictions.

If the evidence was to be admitted in proof of consciousness of guilt then the dangers that accompanied it required particular care in the framing of directions to the jury. The judge gave directions that were plainly intended to caution the jury about the dangers of the evidence, and were very favourable to the applicant, but I am persuaded that, notwithstanding his Honour’s care, they were inadequate.

Was the evidence capable of bearing the consciousness of guilt inference?

In directing the jury as to this evidence his Honour said that the prosecutor characterised it as evidence of “flight from the scene” and that the jury could conclude that he fled “in order to avoid apprehension, and the Crown says you can infer guilt from that fact”. Later his Honour broadened the Crown contention, as being that the flight was an attempt to avoid “identification and apprehension”.

His Honour told the jury that, whilst it was a matter for them, there could be no doubt that the evidence was capable of demonstrating “flight” from the scene, in that the applicant was decamping and apparently not intending to return. That may be so, but given that he had waited at the scene for the arrival of police, and had given police his correct name and address, it seems to me to be fanciful to suggest that his “flight” was to avoid identification and/or apprehension. The fact that the prosecutor invited the jury to conclude that flight was to avoid “identification and apprehension” demonstrates to me that he had not thought through how, precisely, he intended the jury to use the evidence of flight.

The significant issue was, simply, the contention of the prosecutor that “he did flee the scene and that he did so only because of a consciousness of his own guilt of this crime”. Thus, irrespective of whether he thought he might avoid being identified or apprehended if he de-camped, the real question for the jury was whether his conduct was capable of leading to an inference that he departed the scene because he was conscious that he was guilty of culpable driving.

It was certainly open to the jury to infer from the applicant’s flight that he had “a guilty conscience”. In Woon v The Queen[25] Kitto J had used that expression interchangeably with “consciousness of guilt”, but as Kirby J observed in Zoneff v The Queen,[26] a person may have a guilty conscience without it amounting to an admission of having engaged in “the crime alleged, in manner and form alleged” (applying the words of Windeyer J in Woon[27]). Likewise, an accused person might respond out of a sense of shame, which does not necessarily equate with a consciousness of guilt of the crime charged. A sense of shame about one’s conduct might well be consistent with innocence of the offence charged. In Zoneff Kirby J[28] cited a paper by Andrew Palmer,[29] in which the author usefully analysed the research literature in which the two different emotions were distinguished. Palmer suggested that with shame it will generally be impossible to trace the emotion back to a single shaming event, such as the crime charged. He concluded that, “In short, with guilt the feeling is that I have done a bad act; with shame it is that I am a bad person”.
[25](1964) 109 CLR 529, at 535
[26](2000) 200 CLR 234.
[27]Woon, at 542.
[28]Zoneff, at 246 [29], 258-9 [61]-[62]
[29]“Guilt and the Consciousness of Guilt: The use of lies, flight and other ‘guilty behaviour’ in the investigation and prosecution of crime”, Andrew Palmer, (1997) 21 MULR 95, at 110-113.

Those distinctions were important in this case. On the Crown case the applicant fled only after he had learned that the pedestrian had died. Thus, so the prosecutor contended, it was only upon learning that he had caused death that the applicant became aware of his predicament and sought to flee the scene so as to avoid apprehension for such a serious offence. Before us counsel for the applicant sought to answer that contention by referring to evidence that suggested the applicant must have known the man was dead long before he was formally so advised by a police officer. In my opinion, the more likely explanation is that the formal announcement of death was, indeed, a significant precipitator for his running from the scene. That, however, is consistent with him having done so in an emotion of shame, but not as an admission of guilt of the offence (or of responsibility for conduct which, in fact, constituted the offence). The applicant might well have been conscious that his excessive speed and manner of driving was a cause of the death of the pedestrian. However, excessive speed, in the sense of exceeding the speed limit, would not have been sufficient to constitute the offence of culpable driving, and the prosecutor did not suggest otherwise.

Furthermore, causation was an issue in the trial. The applicant had claimed at the scene that it was not his fault: claiming that the behaviour of the pedestrian had been the effective cause of the collision. It was open to the jury to so conclude, by virtue of the pedestrian running into the path of the car, against a red light, and whilst heavily drunk. Thus, even if the applicant had been speeding, the jury might well have concluded that the real cause of the accident was not the applicant’s speed, and/or manner of driving, but the behaviour of the victim. Furthermore, even if the applicant’s speed had been one of the causes that contributed to the accident, it could not of itself amount to culpable driving unless the speed was so substantial, in the circumstances (and when taken with any other deficiencies in his driving), as to amount to gross negligence.

In summary, for the evidence of flight to be capable of demonstrating consciousness of guilt of the offence it must have been capable of constituting an admission of speeding and/or negligent driving to a gross degree on a dry, wide, road, with little traffic. Speeding at more than 100 kph might have satisfied a jury of guilt, but even then, not necessarily so, and given the way the case was fought, certainly not a speed of about 80 kph. In my opinion, in the circumstances of this case it could only be rank speculation on the part of the jury to conclude from the evidence of flight that the applicant had been driving at a speed constituting gross negligence. Indeed, the real danger was that the jury might, in fact, use the evidence of flight as providing the proof that the vehicle had been travelling at the highest speed estimated by witnesses, rather than at a speed in the order of 80 kph, when the flight evidence was simply incapable of demonstrating that. In other words, the jury might use the evidence of flight to establish that the speed was grossly excessive whereas the evidence of flight would only be capable of supporting a consciousness of guilt inference if the jury was first satisfied that the applicant thereby admitted that he was travelling at a grossly excessive speed. That would be a seductive, but flawed, process of reasoning, one redolent of circularity.

Directions as to consciousness of guilt

Given that the judges in the majority have concluded that the evidence of flight was neither intractably neutral nor equally consistent with an explanation other than one betraying consciousness of guilt of this offence, I turn then to the complaints about the directions that were raised by the additional ground of appeal, which Mr Dann sought the Court’s leave to add. The Court permitted counsel to argue that ground, while reserving its decision as to whether to grant leave. Having concluded that the argument had merit, I would have granted leave to add that ground.[30]
[30]The terms of the additional grounds of appeal do not precisely identify the deficiencies in the directions that I highlight, but those were discussed in exchanges between counsel and the Court.

His Honour directed the jury that they must be satisfied that “the only cause of that [flight] was his desire to escape the consequences of this crime and was not for some other reason or purpose such as to a fear of being wrongly accused of something, or a panic, or of emotion, or whatever other reason there might be for fleeing”. His Honour further told the jury that they should be careful to consider the possibility :

“ . . . that he may have had many reasons for leaving the scene, some of which have been dealt with, panic, believed that he would be charged wrongly with an offence when his state of mind was ‘but it was not my fault. The fellow ran out. I did not have a chance’, a panic or – what was it put – unrestrained and uncontrollable emotion or whatever. “

The range of alternative explanations for flight provided by the judge was deficient, in my view. Among the other explanations the jury would have to consider and reject before being satisfied that flight was evidence of the applicant’s guilt of culpable driving (by a process of consciousness of guilt inferential reasoning) were the following:

· that the applicant’s flight betrayed not a fear of being wrongly accused of something, but his belief that because he was driving at about 80 kph immediately before he struck the victim he would be rightly (he thought) accused of culpable driving, and yet, notwithstanding his belief to the contrary, his conduct could not constitute proof of the offence because his driving, viewed objectively by a jury, did not represent such a departure from the required standard as to constitute culpable driving;

· that the flight occurred because the applicant was wracked by a sense of responsibility, or shame, for having been the driver of the vehicle that killed the victim, whilst nonetheless believing that the victim was the author of his own misfortune, and would have been killed even if the applicant had been driving more slowly, or had not been negligent in any other way that might be attributed to him. Thus, he believed that it was not his own negligence that was a substantial and operative cause of the death.

I recognise that, as the Court held in DPP v Ciantar[31], evidence of flight does not have to be proved beyond reasonable doubt before the jury can act on it, treating it as being one piece of evidence among a range of evidence which they will consider, together, in determining whether the offence has been proved beyond reasonable doubt. Nonetheless, the judge, without objection from the prosecutor, took the precaution customarily taken by trials judges (for “prudential reasons”[32]) of in fact directing the jury that they had to be satisfied beyond reasonable doubt that he fled only because of his consciousness of his guilt of culpable driving. Having taken that course the applicant was entitled to have the jury consider all relevant alternative explanations for flight and the two highlighted above were in my opinion clearly open, but were not addressed by his Honour’s directions.
[31][2006] VSCA 263 at [45]-[46], [52].
[32]R v Kotzmann [1999] 2 VR 123 at 130 [21] per Callaway JA , cited in Ciantar at [52].

In Ciantar the Court held[33] that the trial judge should direct the jury on any alternative explanations suggested by the defence. Although similar matters were raised and dealt with by his Honour the two explanations I have suggested, above, were not raised by the defence, but they seem to me to have been so plainly open that the trial judge ought to have placed them before the jury, even if defence counsel did not raise them.
[33]At [86].

In Ciantar, which was also a culpable driving case, the applicant had fled the scene of an accident and then openly consumed alcohol. The Crown contended that he did so in an attempt to cover up the fact that he had consumed and been affected by alcohol before the accident. Among the possible explanations the judge put to the jury was the belief of the accused that he should not have been affected by alcohol to any extent at all, when driving, but without having a belief that he had committed the offence and would be apprehended if he remained at the scene. The matters highlighted in the two dot points, above, raise similar instances of explanations which do not amount to consciousness of guilt of the offence. His Honour’s general direction – to consider whether there may have been some explanations other than those specifically identified by him that might explain the flight – would not sufficiently draw the attention of the jury to the above possibilities. The direction having been deficient, this ground of appeal is made out.

Other grounds and Conclusion

As I have said, I am in substantial agreement with the reasons of Chernov JA as to the disposition of the other grounds. I would, however, observe that, in my opinion, notwithstanding the assistance provided by the model direction stated in

De’Zilwa[34] it would generally be of additional assistance to a jury for them to be told the terms of s 318(2)(b).

[34]R v De’Zilwa (2002) 5 VR 408.

Had grounds 2 and 5 attracted majority support in the Court, then, in my opinion, this would not have been an appropriate case in which to apply the proviso to s 568(1) of the Crimes Act 1958. For the reasons I have given, I do not consider that the evidence of flight was capable of supporting a conclusion of guilt, whether considered alone or taken in conjunction with other evidence. Upon an assessment of the whole of the evidence (whether excluding the flight evidence altogether, or admitting it but with the additional directions that I have identified) I could not be satisfied beyond reasonable doubt that the applicant’s guilt had been established. Thus, I could not be satisfied that there had been no substantial miscarriage of justice.[35]
[35]See Weiss v The Queen (2005) 224 CLR 300.

In my opinion, therefore, the conviction should be quashed and a re-trial be ordered.

NETTLE JA:

I agree with Chernov JA

The law relating to evidence of consciousness of guilt is not improved by metaphysical distinctions. At bottom it is as simple as that human beings sometimes tell lies or run away or engage in other forms of conduct because they are conscious that they are implicated in a crime.

The recognition of that phenomenon and the identification of its manifestations call for the application of common sense and ordinary human

experience, [36] not taxonomical dissection of the animus in quo. For that reason, cases in which wrongdoing may cover a number of possible charges are in principle no different to others.

[36]R v Perera [1982] VR 901 at 910.

Close now to twenty years ago, the Court of Criminal Appeal held in R v Woolley that there is no authority that the accused must be found to have acted out of a consciousness of guilty of a particular offence. As the court then said:

“[I]t would be fanciful to make possible resort to the conduct in question by the jury depend on whether the accused had a consciousness of guilt of particular offences such as causing grievous bodily harm, or actual bodily harm or common assault. It would in our opinion be equally fanciful to require as a precondition to possible use of the conduct that the accused had turned his mind to particular alternatives such as murder or various categories of manslaughter.”[37]

[37](1989) 42 A.Crim.R 418 at 423-4; see also R v Rice [1996] 2 VR 406 at 415.

Just as importantly for present purposes, the court observed that:

“[I]t is not always meaningful to ask whether the accused was betraying consciousness of guilt of the crime charged, for at the point of time when the conduct occurs the accused is presumably not thinking of guilt of a specific offence, much less of a series of alternatives. Rather the question is whether he is betraying a consciousness of being implicated in the actus reus, whether it be the killing or the robbery.”[38]

[38](1989) 42 A Crim R 418 at 424.

Despite this court’s brief dalliance with other, exotic, jurisprudence on the subject,[39] that remains the law.[40]
[39]See R v Heyes (2006) 12 VR 401; R v TY (2006) 12 VR 557.
[40]R v Ciantar [2006] VSCA 263 at [34]-[69].

It is unlikely that when the applicant fled from police he had in mind that he was guilty of the specific offence of culpable driving,[41] much less of the series of alternatives which range from exceeding the speed limit up to dangerous driving causing death.[42] But to adopt and adapt what was said in Woolley, it would be fanciful to require as a precondition to possible use of his flight that the applicant turned his mind to particular alternatives such as culpable driving or dangerous driving causing death. The question is whether by his flight he was betraying a consciousness of having caused the death of the victim by driving in a fashion which was reprehensible. That was a question for the jury.
[41]Crimes Act 1958, s. 318.
[42]Crimes Act 1958, s. 319.

As Eames JA observed in the course of argument, it is possible that the applicant was experiencing no more than a sense of moral responsibility for having caused the death of another man, maybe believing all the while that he was innocent of any criminal wrongdoing. It follows that, if there were no other evidence of his guilt, his flight from police may have been seen as intractably neutral.[43] But as Chernov JA has demonstrated in what is, with respect, a compelling analysis of the problem, there was extensive evidence of derelict driving right up to the point of impact. And in that context, in my view, there were powerful reasons to see his flight as an admission which was “probative of his guilt”.[44]
[43]cf. R v DAN [2007] QCA 66 at [124].
[44]Edwards v The Queen (1993) 178 C.L.R. 193 at 208-9.

In Ciantar the court attempted to provide some guidance as to the way in which a trial judge should go about the task of assessing the admissibility of evidence of consciousness of guilt and instructing the jury in its use.[45] As may be seen in Chernov JA’s judgment, the way in which the trial judge approached the task in this case was in some respects different to that. That is not intended as criticism of the judge or his approach; for, as Chernov JA has shown, the way in which the judge went about the task was in the end unexceptionable, and in any event the trial took place before the judgment in Ciantar was published. But for the future, it is perhaps to be hoped that the guidance which it offered might be slightly more closely adhered to.
[45][2006] VSCA 263 at [70]-[87].

I would refuse the application for leave to appeal.

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29 May 2007