R v Hayes - [1998] QCA 415

IN THE COURT OF APPEAL
[1998] QCA 415
SUPREME COURT OF QUEENSLAND
C.A. No. 319 of 1998
Brisbane
[R v Hayes]
THE QUEEN
v.
ANDREW CRAIG HAYES

(Applicant) Appellant

Pincus JA
Thomas JA
Chesterman J

Judgment delivered 11 December 1998.
Joint reasons for judgment of Thomas JA and Chesterman J; separate reasons of
Pincus JA concurring as to the orders made.
APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:

CRIMINAL - dangerous driving causing grievous bodily harm - admissibility of evidence taken by police while in hospital with head injuries - insufficient evidence to discharge Crown's onus on voir dire - application of proviso.
Counsel: Mr P. Sacre for the applicant/appellant.
Mr D. Meredith for the respondent.
Solicitors: Noel Woodall & Associates for the applicant/appellant.
Director of Public Prosecutions (Queensland) for the
respondent.
Hearing Date: 26 November 1998
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 11 December 1998

I have read the joint reasons of Thomas J.A. and Chesterman J. and am in substantial agreement with them. I am of opinion that the orders which their Honours propose should be made. In situations such as that in which the appellant was interviewed at the hospital, commonsense dictated that the police interview be properly - i.e. electronically - recorded. It must have been evident that there was a prospect that the appellant would be charged with dangerous driving causing grievous bodily harm. Why police, in such circumstances, persist in the unsatisfactory practice of relying on a recollection of the incriminating conversation written in a note book is not easy to understand. Apart from the uncertainty as to whether this appellant was fit to be interviewed, the failure properly to record the incriminating interview should in my view have been taken into account in favour of the appellant in considering whether the evidence could fairly be let in.
With respect to the sentence, the range of periods of imprisonment which may properly be imposed for this offence extends up to 14 years, that being the maximum prescribed by the Code: s. 328A(4)(b). This was not a case in the worst category of offences caught by that provision: there was no evidence of persistent dangerous driving, nor any history of criminal behaviour. But unless the statutory maximum is to be treated as a dead letter it seems to me impossible to hold that the 3 year sentence imposed was not warranted.
JOINT REASONS FOR JUDGMENT - THOMAS JA AND CHESTERMAN J
Judgment delivered 11 December 1998
The appellant was convicted in the District Court of dangerous driving causing grievous bodily harm with a circumstance of aggravation (blood alcohol of .157%). The primary issue at trial was whether the appellant was the driver of a Commodore motor vehicle which had collided with another vehicle driven by one of the complainants.
The appellant (who gave evidence) conceded that he had been drinking heavily over a number of hours preceding the incident, which would seem to have occurred shortly before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hayes

Details

AGLC: R v Hayes [1998] QCA 415
Case: [1998] QCA 415
Decision Date: 11/12/1998

CaseChat Overview and Summary

The District Court was called upon to determine whether the appellant, Hayes, was the driver of a Commodore vehicle involved in a dangerous driving incident causing grievous bodily harm to two complainants. The appellant was convicted, but the conviction was appealed on the grounds of admissibility of evidence taken by police while the appellant was hospitalised with head injuries. The primary issue was whether the appellant was indeed the driver of the Commodore at the time of the collision. The appellant conceded his intoxication and the dangerous driving but denied being the driver. The court was required to decide if the evidence obtained while the appellant was in hospital was admissible and if there was sufficient evidence to establish that the appellant was the driver.

The court found that the evidence obtained from the appellant while he was in hospital was inadmissible due to insufficient evidence to discharge the Crown's onus on a voir dire. The court considered the circumstances and noted that the appellant had total amnesia and was heavily medicated, which affected his ability to provide reliable statements. The court also considered that the circumstances of the incident did not suggest any other person was involved in the Commodore at the material time. The appellant’s companion, Ellerton, was restrained by a seatbelt and could not have been the driver. The court concluded that there was insufficient evidence to establish that the appellant was the driver.

Given the findings, the court determined that the sentence imposed, which was within the statutory maximum of 14 years, was warranted. The court noted that while the case was not in the worst category of dangerous driving offences, the sentence was appropriate given the nature of the offence and the absence of any mitigating factors. The court upheld the conviction but acknowledged the complexities in determining the driver based on the available evidence.

The court ordered that the conviction be upheld, but the sentence would be subject to review in light of the evidence and circumstances of the case. The court emphasised the importance of ensuring that sentences are proportionate and reflect the seriousness of the offence. The decision highlights the challenges in obtaining admissible evidence from an injured party and the necessity of clear identification of the driver in such cases.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JA AND CHESTERMAN J

With respect to the sentence, the range of periods of imprisonment which may properly be imposed for this offence extends up to 14 years, that being the maximum prescribed by the Code: s. 328A(4)(b). This was not a case in the worst category of offences caught by that provision: there was no evidence of persistent dangerous driving, nor any history of criminal behaviour. But unless the statutory maximum is to be treated as a dead letter it seems to me impossible to hold that the 3 year sentence imposed was not warranted. JOINT REASONS FOR JUDGMENT - THOMAS Judgment delivered 11 December 1998 The appellant was convicted in the District Court of dangerous driving causing grievous bodily harm with a circumstance of aggravation (blood alcohol of .157%). The primary issue at trial was whether the appellant was the driver of a Commodore motor vehicle which had collided with another vehicle driven by one of the complainants. The appellant (who gave evidence) conceded that he had been drinking heavily over a number of hours preceding the incident, which would seem to have occurred shortly before 9.30 p.m. No issue existed in relation to his intoxication or the level thereof, or of the fact that the Commodore in which he was travelling had been driven dangerously across double lines resulting in collision with another vehicle and grievous bodily harm to two complainants. It was however clearly demonstrated that the appellant also was injured in the incident. He was observed to be lying unconscious or comatose in a ditch by the first witness upon the scene and was later observed to be vomiting and shaking and then staggering at the scene. He was taken to hospital where the notes indicate, “No recollection of event. Total amnesia.” He was placed on intravenous saline at 2230 hours and on intravenous morphine at 1.05 a.m. When his wife saw him in hospital she had to bend down to hear him and had difficulty in understanding what he was trying to say. The appellant’s version is that after telephoning his wife at about 7.30 p.m. to arrange transport home, he has only a vague recollection of having been in the back of the Commodore, and that his companion Ellerton was in the front in a position where he had to “turn over his shoulder” in order to speak to the appellant. His next recollection is of waking up in a hospital bed. There were no eyewitnesses identifying the driver of the Commodore and Ellerton was not called as a witness. There was no suggestion of any third person being in the Commodore at any material time, and there is nothing in the evidence that gives any reason to think that someone else may have been with them. The only persons at the scene when the first witness (Ms Pearce) arrived were the appellant (lying in the ditch) and Ellerton who was sitting in the front passenger seat unable to move. He was eventually cut out of the car from that position. There is also uncontradicted evidence from a policeman who came to the scene that while Ellerton was in that position he was restrained by a seatbelt.

Ratio Decidendi

Legal Principle Established

Established by: JA AND CHESTERMAN J

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CATCHWORDS:	CRIMINAL - dangerous driving causing grievous bodily harm - admissibility of evidence taken by police while in hospital with head injuries - insufficient evidence to discharge Crown's onus on voir dire - application of proviso.
Counsel:	Mr P. Sacre for the applicant/appellant. Mr D. Meredith for the respondent.
Solicitors:	Noel Woodall & Associates for the applicant/appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	26 November 1998