R v Guy
[2000] VSCA 143
•2 August 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 255 of 1998
| THE QUEEN |
| v. |
| KENNETH LEONARD GUY |
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JUDGES: | WINNEKE, P., BROOKING and PHILLIPS, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 August 2000 | |
DATE OF JUDGMENT: | 2 August 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 143 | |
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Criminal law – Culpable driving causing death – Identity of driver – Verdict not unsafe or unsatisfactory – Charge not unfair.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. J.D. McArdle, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | In person |
WINNEKE, P.:
I will invite Brooking, J.A. to give the first judgment in this matter.
BROOKING, J.A.:
This application relates to a conviction of culpable driving causing death sustained as the result of a verdict of a County Court jury given on 17 September 1998. Sentence (five years' imprisonment with a 3½-year non-parole period) was passed on 7 October 1998. An application for leave to appeal against that sentence has been abandoned and the applicant has appeared in person in support of his application for leave to appeal against conviction. The fatal collision occurred at about 1 a.m. on Sunday 9 July 1995, when a Commodore station wagon lent to the applicant by a repairer, travelling at high speed, ran into the rear of a car driven by the victim, which was stationary. Culpability in point of negligence and in point of driving under the influence was alleged in the presentment. The trial did not take place until more than three years after the death because it had been suggested by the applicant's legal advisers that the trial for perjury of a man named Brent Adamson should first take place.
The applicant was represented by experienced counsel at his trial, having also been represented at the committal. On the trial the only defence raised was that the driver of the Commodore was not the person to whom it had been entrusted - the applicant - but a man known only as "Scotty", who was driving the applicant as a passenger in the applicant's temporary car because the applicant was too drunk to drive. The man Adamson had been brought to the attention of the police by the applicant's solicitors as a person who could give material evidence. He swore at the committal that the applicant had been a visitor to his home in Ringwood on the night of Saturday 8 July 1995 and that he had himself seen the applicant driven away as a passenger by "Scotty" when the two men left his home. It was later proved, and indeed Adamson later admitted, that on 8 July 1995 he was not in Australia but in New Zealand. On his trial for perjury Adamson's defence was that he had given his sworn but untrue evidence believing it to be true, having been told by the applicant that the incident had taken place at the Ringwood home on 8 July 1995. He had, he claimed, made a genuine mistake about the date.
The applicant's grounds of appeal were originally the "unsafe and unsatisfactory" ground coupled with some unspecified complaint about circumstantial evidence. His substituted grounds are:
"1. That in all the circumstances there has been occasioned to the Applicant a miscarriage of justice in that the evidence was not reasonably capable of satisfying a reasonable and properly instructed jury of the Applicant's guilt beyond a reasonable doubt.
2. A miscarriage of justice resulted from the unfair and unbalanced nature of the summing up."
He has made a written submission to us but his case as presented to us is a simple one: that there was no evidence of sufficient cogency to show that he was the driver of the car, and that the trial was unfair because of comments by the judge (really he complained only of a single comment).
Since identity was the only issue, the first ground is necessarily limited to that issue. There was evidence that the applicant had admitted he was the driver to the police, but this evidence was excluded by reason of the provisions of the Crimes Act 1958 dealing with tape recording of confessions and admissions, and so the evidence led by the Crown to establish that it was the applicant who had been driving the Commodore was entirely circumstantial. The applicant gave evidence denying the fact. A "no case" submission had been rejected by the judge, his Honour observing that in his opinion there was ample evidence to support the inference that the applicant was the driver. The applicant gave evidence denying that he was the driver and saying that "Scotty" was the driver and that he had tried unsuccessfully to trace "Scotty" and indeed other persons who had been at the Ringwood house from which he had set off, driven by "Scotty". In his reasons for sentence the judge described the Crown case as overwhelming, a description which I do not think was too strong.
A variety of pieces of evidence pointed towards the applicant's guilt.
On the lay and police evidence called by the Crown, it was well open to the jury to infer that he had fled from the scene of the collision because of his awareness that his grossly negligent and drunken driving was the cause of it. Much was made on the applicant's behalf at the trial of the evidence of two local residents, Mr and Mrs Swift, that a long-haired man standing on a street corner close to where the applicant's car had come to rest after the collision had gone up to the applicant and told him to clear out, whereupon the applicant had walked off down a side street to a point in a driveway at which he was later apprehended by the police, who had been in pursuit of him. The applicant's evidence was that "Scotty" was tall, with long hair at the back, and that after they had both got out of the car, shortly after the collision, "Scotty" had said to him, "Let's get out of here." He swore that "Scotty" left the scene of the accident and that he had tried to follow him to stop him getting away. On the lay and police evidence, it was well open to the jury to conclude that the applicant never attempted to pursue a man named Scotty and that the applicant left the scene in the hope of avoiding apprehension for a serious criminal offence. No witness called by the Crown supported the suggestion that another man preceded the applicant down the side street in a driveway off which he was apprehended. It was open to the jury to conclude that, if "Scotty" existed, which was extremely doubtful, he was never in the Commodore. The cross-examination of the applicant about his car trip with "Scotty" at the wheel, and about other matters, may well have been regarded by the jury as very destructive of his credibility having regard to the probabilities. The Crown suggestion was that the long-haired man seen by the Swifts could have been a busybody who did not like the police and had told the applicant to clear out.
Complaint is now made, under the second ground, by the applicant of that suggestion, which was recorded by the judge not as a comment made by him (the judge) but merely as part of his summary of the addresses. There is, I think, no basis for this complaint. The judge was simply rehearsing the arguments of counsel. He had more than once given the jury adequate directions about the approach which they should take to the judge's comments and to the comments and submissions of counsel. The evidence of Mrs Swift was that the long-haired man showed no sign of injury. This is important in view of the evidence about damage to the Commodore's windscreen and related matters, to which I now turn.
This evidence was extensive and very important. I will, however, refer to it only briefly, by stating its effect rather than its detail. The evidence of police witnesses of observations made by them, and the expert opinions of police witnesses, afforded ample foundation for findings that two strike marks on the windscreen were both caused by the body of the driver (unrestrained by a seatbelt) as a result of the impact, the upper one being caused by the head and the lower one by the elbow; that it was the applicant's head that had caused the upper mark, resulting in the head injuries that he had undoubtedly sustained; that it was the applicant's elbow that had caused the lower mark, resulting in an injury to his elbow, damage to the left elbow part of his cardigan and its impregnation with glass particles; that the applicant's blood was found on the driver's seat but not found anywhere on the passenger side because he was the driver; that there had been no person seated in the front passenger seat at the moment of impact; that if Mrs Swift's evidence that the long-haired man showed no sign of injury was accurate he could not have been the driver of the Commodore.
The applicant's case underwent a sea change near the end of the trial. His counsel's cross-examination of prosecution witnesses had clearly been at all times on the basis that it was his case that he had been seated in a normal position in the front passenger seat and that the strike marks were caused by two different people. So Dr Nimorakiotakis was cross-examined with a view to showing that the applicant had suffered injuries to the chest and sternum as a result of wearing a seatbelt in the way in which a passenger would ordinarily wear one. Mr Crafti - for he it was who defended the applicant - sought to obtain from the witness Cleary the concession that the two strike marks may have been caused by different people. The witness Leason was cross-examined on the basis that there was a passenger seated in the front passenger seat. Similarly, Mr Crafti cross-examined the witness Keramidas on the basis that there was someone seated in the front passenger seat wearing a seatbelt in the usual position and on the basis that this passenger's body could have caused the lower strike mark on the windscreen. The witness Hodge was cross-examined so as to suggest that there were two persons, a driver and a passenger, both seated in the front of the Commodore and that the passenger's body must have been thrown to the right by the collision and itself have caused one at least of the strike marks on the windscreen.
The judge was startled, and said so, when this case seemed to be abandoned when the applicant gave evidence and replaced by a very different case, namely, that the applicant, being "blind drunk" and "legless", had not caused either of the windscreen strike marks and, instead of sitting up with his seatbelt on and in the conventional position, had curled up in the foetal position, leaning on the console between the two bucket seats, that he was none the less wearing a seatbelt, that he had injured his face not on the windscreen but when his knees struck it and that somewhat later, when he was leaving the car via the driver's door (the passenger side door having, as the Crown accepted, jammed) he must have brushed his elbow against the windscreen, which had already been damaged by the body of the driver, "Scotty".
This change of front was very striking and quite unexplained.
I do not summarise the evidence before the jury about the man Adamson and the role of the applicant and his advisers in relation to Adamson.
The place of the collision was on a route that the applicant could have followed if he had been driving not with "Scotty" from Ringwood but from the house in North Essendon, which he admitted he had visited, direct to his girlfriend's home in Williamstown.
An independent review of the evidence shows the "unsafe and unsatisfactory" ground to be quite untenable. Nor do I think that the charge was unfair or unbalanced. The judge made some comments on the facts but they were within proper limits. A number of times, as I have said, he gave the jury appropriate directions about their proper approach to the judge's comments on the facts. The supposed comment really complained of now by the applicant about the busybody who did not like the police was, as I have mentioned, not a judge's comment but part of the summary of the Crown submission. It was an obvious possibility to be advanced by the Crown, since, if "Scotty" was not someone from the Commodore, he would seem to have been a busybody and one who was suggesting that someone from the car involved in the collision should simply decamp.
In my opinion the applicant had a fair trial and one which resulted in a conviction which, rather than being unsafe and unsatisfactory, was well nigh inevitable. I would dismiss his application.
WINNEKE, P.:
I agree.
PHILLIPS, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court will be that the application for leave to appeal against conviction is dismissed.
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