R v Leusenkamp - [2003] VSCA 193

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 40 of 2002

THE QUEEN
	v.
STEVEN HENDRIKUS LEUSENKAMP

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JUDGES:	CHARLES, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 November 2003
DATE OF JUDGMENT:	27 November 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 193	1^st Revision – 9 December 2003

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Criminal law – Conviction – Culpable driving causing death – “Gross negligence” – Charge given before decision in R. v. De’Zilwa (2002) 5 V.R. 408 – Explanation of gross negligence required – Causation – Failure of judge to relate the facts and issues raised to the charge – Appeal allowed.

Criminal law – Evidence – Witness cross-examined as to credit – Whether honesty of witness questioned in other trials – Unverified document tendered by prosecution through defence witness after prosecution case closed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G.J. Thomas, S.C.	Victoria Legal Aid

CHARLES, J.A.:

On Friday 9 June 2000 at 5.20 p.m. a three-car accident occurred on the Western Highway near Armstrong, involving a Mitsubishi sedan driven by Steven Leusenkamp (the applicant), a Holden Rodeo utility driven by Kenneth Sparrow and a BMW sedan driven by Mrs Eleonora Regina Nuske. Mrs Nuske died at the scene of the collision.

The applicant, who was born on 29 July 1971, was charged with one count of culpable driving of a motor vehicle causing the death of Mrs Nuske, and on 4 February 2002 his trial proceeded in the County Court at Ballarat. The applicant pleaded not guilty and the trial lasted some eight sitting days. On 13 February the jury returned a verdict of guilty. After a plea in mitigation the judge on 5 March sentenced the applicant to 5 years' imprisonment and fixed a non-parole period of 3 years.

The applicant now seeks leave to appeal against conviction on the grounds that –

“1.The trial miscarried because the judge failed to discharge the jury following the attack upon the honesty of the only defence witness, as that attack caused unfair prejudice to the defence case which would not be cured by a direction to the jury.
2.The trial judge erred in his directions concerning the elements of negligence in that –
(a)he failed to direct sufficiently or at all that the negligence to be proven was the same as for manslaughter; and
(b)he failed to direct sufficiently or at all that the Crown must prove such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances as the jury found them to be, involving such a high risk that death or serious injury would result, that the driving causing death merited criminal punishment.

3.The judge erred in that he did not sufficiently or at all apply the law to the facts of the case in his charge particularly as to –
(a) the differing facts contended for by the parties; and
(b)causation…

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 Leusenkamp

Details

AGLC: R v Leusenkamp [2003] VSCA 193
Case: [2003] VSCA 193
Decision Date: 27 November 2003

CaseChat Overview and Summary

Leusenkamp was charged with culpable driving causing death. The case came before the court prior to the decision in R. v. De’Zilwa, which clarified the meaning of "gross negligence" in the context of culpable driving causing death. The defendant appealed against his conviction, arguing that the trial judge had not properly explained the concept of gross negligence to the jury and had failed to adequately relate the facts of the case to the charge. The defendant also claimed that the judge erred in allowing cross-examination of a witness as to credit and that the prosecution's introduction of an unverified document through a defence witness after the prosecution case had closed was improper.

The court examined the legal issues surrounding the explanation of gross negligence to the jury and whether the judge's instructions adequately covered the concept. The court also considered whether the trial judge erred in permitting the cross-examination of a witness as to credit and whether the admission of an unverified document through a defence witness after the prosecution case had closed was a miscarriage of justice. The court held that the judge's failure to properly explain gross negligence to the jury and to relate the facts and issues raised to the charge resulted in a miscarriage of justice, and that the admission of the unverified document was also improper. Consequently, the appeal was allowed, and the conviction was quashed.

The court ordered that the conviction be quashed and that a new trial be conducted. The court emphasised the importance of correctly instructing juries on the legal standards applicable to the charge and the need for careful consideration of evidence adduced during the trial. The court also noted that the introduction of unverified documents through a defence witness after the prosecution case had closed could prejudice the defendant and undermine the fairness of the trial. The court's decision in this case highlights the importance of ensuring that the trial process is fair and that the jury is properly instructed on the legal standards applicable to the charge.

Orders