R v Duryea

Case [2008] SASC 363

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DURYEA

[2008] SASC 363

Judgment of The Court of Criminal Appeal

(The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice Kelly)

23 December 2008

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PROCEDURE - DIRECTIONS TO JURY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

Appeal against conviction – appellant convicted of two counts of causing grievous bodily harm by dangerous driving and two counts of causing harm by dangerous driving – appellant had been awake for 24 hours prior to the accident, and had consumed alcohol, ecstasy and amphetamine – car ran off road and collided with a tree, injuring passengers – whether directions to jury were correct and sufficient.

Appeal allowed – four grounds of appeal upheld – retrial ordered.

Whether jury was properly directed on the meaning of “driving in a manner dangerous to the public.”

Held: Directions inadequate – jury was informed that manner of appellant’s driving was to be assessed objectively, but not that that assessment had to be from the standpoint of a reasonable person in the situation of the appellant at the relevant time.

Whether directions in respect of appellant’s impaired ability to drive due to alcohol, drugs or fatigue contained error.

Held: Judge erred in suggesting that driving while faculties impaired by alcohol, drugs or fatigue amounted by itself to driving in a manner dangerous to the public.

Whether propensity warning should have been given in respect of evidence that appellant had used illicit drugs.

Held: deficiency of directions did not in itself cause a miscarriage of justice but is to be taken into account when considering adequacy of directions as a whole.

Whether evidence of earlier acts of untoward driving was properly left to the jury – whether adequate directions given on that evidence – consideration of permissible uses of such evidence.

Held: evidence correctly left to jury – sufficient relationship existed between appellant’s earlier driving and his driving at the time of the accident. Directions inadequate – Judge ought to have explained in more detail the permissible and impermissible uses of the evidence – jury should have been warned against engaging in propensity reasoning.

Criminal Law Consolidation Act 1935 (SA) ss 19A, 19B; Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA) s 9; Road Traffic Act 1961 (SA) s 45; Australian Road Rules r 132, r 134, referred to.
R v Coventry [1938] SASR 79; R v Mayne (1975) 11 SASR 583; R v Kamleh (1990) 159 LSJS 268; R v Greenham (1997) 25 MVR 495; R v Buchanan [1966] VR 9; R v D (1997) 58 SASR 571; R v Scott (2003) 141 A Crim R 323; R v Fischer (1996) 23 MVR 507, applied.
R v Hendriksen (2007) 98 SASR 571; R v…

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R v Duryea [2008] SASC 363
Case
[2008] SASC 363
Decision Date

CaseChat Overview and Summary

In the case of R v Duryea, the appellant was convicted of two counts of causing grievous bodily harm by dangerous driving and two counts of causing harm by dangerous driving. The appellant had been awake for 24 hours prior to the accident, and had consumed alcohol, ecstasy, and amphetamine. The car ran off the road and collided with a tree, injuring the passengers. The appellant appealed against his conviction, arguing that the directions to the jury were incorrect and insufficient. The appeal was heard in the Queensland Court of Criminal Appeal.

The court was required to decide whether the directions to the jury were correct and sufficient. The court considered whether the evidence of the appellant's earlier "untoward driving" should have been separated from his driving around the time of the accident. The court also considered whether the jury should have been directed not to engage in a form of propensity reasoning. Additionally, the court examined whether the jury should have been given directions concerning the expert evidence and the use of illicit substances.

The court found that the directions to the jury were not sufficient. The court held that the evidence of the appellant's earlier "untoward driving" should have been separated from his driving around the time of the accident. The court also held that the jury should have been directed not to engage in a form of propensity reasoning. Furthermore, the court held that the jury should have been given directions concerning the expert evidence and the use of illicit substances. The court concluded that the appeal should be allowed and the convictions set aside, with a retrial ordered.

The court's decision was that the appeal should be allowed and the convictions set aside, with a retrial ordered. The court held that the directions to the jury were not sufficient, and that the evidence of the appellant's earlier "untoward driving" should have been separated from his driving around the time of the accident. The court also held that the jury should have been directed not to engage in a form of propensity reasoning, and that the jury should have been given directions concerning the expert evidence and the use of illicit substances. The court concluded that the appeal should be allowed and the convictions set aside, with a retrial ordered.

Orders

Orders of the court

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Background

Background to the litigation

The Queensland Court of Criminal Appeal held that this direction was, if anything, too favourable to the defendant.[49][49] Ibid at 304.Application of these principles to the facts of this case On the authority of Fischer, Buchanan and Scott, I consider that the impugned evidence of Ms O’Reilly and of Ms Papadoulis was properly left to the jury. It was relevant to the extent to which the appellant’s driving was impaired by alcohol, and to the appellant’s general manner of driving around the time of the accident. The witnesses described aspects of the appellant’s driving during what was in effect, one trip. There was no need to separate the appellant’s driving in the city and suburban areas from his driving in the hills. Horsnell Gully is quite proximate to suburban Adelaide. A common feature of the evidence of both witnesses was the descriptions of the appellant going into corners or bends at a fast speed, or at least sharply, and it was open to the jury to conclude that that is what he did on Woods Hill Road. These features suggested a sufficient relationship between the appellant’s earlier driving and his driving when his car ran off the road. The Judge’s directions with respect to the evidence of the appellant’s earlier “untoward driving” appeared in the settled form of the summing up under the heading “Other Bad Driving”. However, it was common ground that none of the headings in the settled version of the summing up had been used in the oral directions to the jury. The Judge reminded the jury of the evidence of Ms O’Reilly and Ms Papadoulis and also of the evidence of Mr Randle to the effect that the appellant had crossed the double continuous lines in order to effect the overtaking manoeuvre. The Judge then said:Other untoward driving, if there was any – and I am not suggesting there was in this case – on, for instance, the previous day would, of course, be irrelevant. Because it has no temporal or other connection of the driving which caused the harm here. But here in this case the witnesses are describing what happened on a single driving excursion into the hills that morning. So this other driving, just highlighted by me is, to the extent that you accept it – and it is a matter for you – relevant. It is one part of the course of driving which culminated in the collision with the tree or put another way it is part of the circumstances surrounding the final driving incident when the car collided with the tree. In my respectful opinion, this was an appropriate direction, but it would have been desirable for the Judge to have gone further and to have explained in more detail the permissible and impermissible uses of the evidence. Counsel for the appellant accepted that the evidence of the previous driving could properly have been used by the jury to conclude that a reasonable person in the position of the appellant would have realised from the driving itself, and from the reactions of his passengers, that the manner of driving was inappropriate and, or in the alternative, that his faculties may have been impaired by his consumption of the ecstasy. The jury could also have used the evidence when considering the submission of defence counsel that the loss of control of the car was attributable to a momentary loss of concentration. It was desirable that the jury be directed about these permissible uses. I also consider that it was appropriate for the jury to be instructed not to engage in a form of propensity reasoning, ie, that if they were satisfied that they appellant had been taking bends too fast earlier in the journey it was likely that he had entered this particular bend too fast as well.

Evidence

Evidence Before The Court

I would not uphold this ground of appeal. Ground Five: Absence of directions concerning the expert evidence The prosecution led expert evidence from Professor White concerning the effects of ecstasy, and from Mr Mitton, the accident investigator. I have referred earlier to relevant aspects of the evidence of Professor White. In addition to expressing his opinion as to the cause of the car running off the road, Mr Mitton suggested that the appellant’s car had commenced its turn into the bend from a position on its incorrect side of the road. This could only have occurred if the appellant had turned into the bend before returning to his correct side of the road after overtaking the other vehicle or if, having returned to the correct side of the road, it veered onto the incorrect side of the road. Mr Mitton seems to have thought that it was the former, and suggested that commencing the turn on the incorrect side of the road had had the effect of making the turn tighter than would have otherwise been the case. As I understand it, Mr Mitton’s opinion in this respect derived principally from his assessment of certain tyre marks on the road surface shown in photographs taken by a police accident investigator. Although there was no other expert evidence contradicting that of Mr Mitton, his opinion that the appellant had commenced the turn while on the incorrect side of the road was not supported by the evidence of either Mr Randle or the appellant. The Judge did not give the jury any specific directions relating to their assessment or use of the expert evidence. The appellant contended that the directions were not sufficient in this respect. The respondent accepted that it would have been desirable for the Judge to have given the jury directions concerning the expert evidence. I respectfully agree. It was appropriate for the jury to be instructed that it was not bound to accept the evidence of either Professor White or Mr Mitton simply because of their expertise. It was also appropriate for the jury to be directed that they should be satisfied that the factual basis for the experts’ opinions had been established by other evidence, whether their own or the evidence of others. In his general directions, the Judge had told the jury that it was for them to assess what evidence they regarded as truthful, and what evidence they regarded as reliable and accurate. Nevertheless it would have been desirable for the Judge to have given explicit directions of the kind outlined earlier. Neither counsel addressed the question of whether a failure to give directions concerning the manner of assessment and use of expert evidence amounted to an error of law. In these circumstances and because I consider that the appeal must be allowed on other grounds, I will refrain from addressing that issue. For similar reasons, it is also unnecessary to consider whether this particular omission in the directions by itself occasioned a miscarriage of justice in the trial. Ground Six: Absence of directions concerning use of illicit substances

Decision

Reasons for decision

As I am satisfied that the appeal should be allowed on other grounds, it is not necessary to address this ground in detail. Conclusion For the reasons given above, I consider that Grounds one, three, seven and eight should be upheld. I also conclude that it was desirable that more extensive directions be given, as complained of in Grounds five and six. Accordingly, I would allow the appeal and set aside each of the convictions. I would order a retrial. KELLY J: I agree with the reasons given by White J.

Ratio Decidendi

Legal Principle Established

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