R v Mitchell

[2005] VSCA 304

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 65 of 2005

THE QUEEN

v.

ANITA MARIETTA MITCHELL

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JUDGES:	CALLAWAY, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 December 2005
DATE OF JUDGMENT:	15 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 304

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Criminal law – Culpable driving causing death – Negligently causing serious injury – Collision on straight stretch of road with clear visibility – Applicant travelling well within speed limit, not tired or under influence of drugs or alcohol – Accident reconstruction evidence – No evidence called for defence – Prosecution evidence nevertheless insufficient to establish criminal negligence – Judgments and verdicts of acquittal entered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P.G. Lacava, S.C. with Mr M.J. Croucher	Victoria Legal Aid
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

CALLAWAY, J.A.:

1. The applicant, who is now aged 24 and was 20 at the time of the alleged offences, pleaded not guilty in the County Court at Bendigo to one count of culpable driving (count 1) and one count of negligently causing serious injury (count 2).  The maximum custodial penalties for those offences are 20 years’ and five years’ imprisonment respectively.  She had no previous convictions or findings of guilt.  After hearing a plea for leniency on her behalf, the learned trial judge sentenced the applicant on 16^th February 2005 to four-and-a-half years’ imprisonment on count 1 and 18 months’ imprisonment on count 2.  His Honour directed that six months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of five years’ imprisonment.  A non-parole period of two years and three months was fixed, a declaration regarding seven days’ presentence detention was made and the applicant was disqualified from obtaining a driver licence for four years from the date of sentence.

1. The applicant seeks leave to appeal against both conviction and sentence.  There are five grounds of appeal against conviction.  The grounds of appeal against sentence are that the sentence on count 1, the total effective sentence and the non-parole period are manifestly excessive.  In the view I take of this case, it is enough to deal with the first ground of appeal against conviction, namely that the verdicts are unsafe and unsatisfactory in the sense that no reasonable jury, properly instructed, could be satisfied beyond reasonable doubt of the applicant’s guilt.

1. The essence of the case was as follows.  On 13^th April 2002 the applicant was driving a Holden Commodore sedan along the Murray Valley Highway near Patho.  The vehicle was owned by her then partner, Alexander Reid, who was the front seat passenger.  Ahead of her was a four-wheel drive Triton utility driven by Troy Douglas.  A Mercedes sedan was also travelling in the same direction.  It was driven by Alexander Riley, who was on his way to visit friends and intended to turn left into a gravel driveway. 

1. Some distance before the driveway Mr Riley moved his vehicle partly on to the gravel and partly off the bitumen.  He may have been as much as four-fifths off the road.  He slowed down and put his left-hand indicator on.  Mr Douglas, the driver of the Triton utility, indicated that he intended to overtake the Mercedes and did so.  At that time he saw the Ford station wagon driven by the deceased, Donald Major, approach from the opposite direction, but he had sufficient time and distance safely to pass the Mercedes.

1. The applicant was behind the Triton utility and decided to pass the Mercedes too.  She moved towards the centre broken line and part of her vehicle was across it, when she became aware of Mr Major’s vehicle and applied her brakes.  She lost control and skidded on to the wrong side of the road, where her vehicle collided with the Ford station wagon.  As a result of that collision, Mr Major sustained injuries from which he died.  Mr Reid suffered serious head injuries, including brain damage.

1. I shall refer to other facts later in these reasons and I append, as a schedule, an edited version of the Crown’s summary of the evidence prepared for  the hearing of the applications.

1. Mr Lacava submitted that, although the applicant stood mute, the evidence led at the trial was insufficient to establish the criminal negligence that was an element of both counts 1 and 2.[1]  Although I was at first reluctant to accept that submission, I am persuaded that it is correct. 

   [1]R. v. Shields [1981] V.R. 717; R. v. De’Zilwa (2002) 5 V.R. 408.

1. The accident occurred in broad daylight, on a straight stretch of road, with clear visibility.  The evidence of an expert in accident reconstruction showed that the distance between the two vehicles, the applicant’s and Mr Major’s, was insufficient for her safely to move on to the wrong side of the road.  She was not maintaining a proper lookout.  If, as Mr Lacava submitted, there was room to pass between Mr Riley’s vehicle and the centre broken line, there was no need to be on the wrong side of the road at all.  The jury did not know, and we must therefore ignore, that the applicant had never committed a driving offence or even received a traffic infringement notice.  Those points having been acknowledged, it must be remembered that the applicant’s vehicle was only a little over the centre line when it began to skid.  By that stage she was committed to passing the Mercedes.   The applicant was travelling well within the speed limit.  She was not driving whilst tired or under the influence of drugs or alcohol and her driving had not been erratic prior to the accident. 

1. I am acutely conscious that one man died, and another was seriously injured, as a result of the collision. The gross negligence required by s.318(2)(b) of the Crimes Act 1958 (culpable driving), which is also applicable to s.24 (negligently causing serious injury), imports a community standard. There should be a new trial unless this Court is satisfied that no reasonable jury, properly directed and attending to the evidence, could be satisfied of the applicant’s guilt. In my opinion, a jury would have little difficulty in being satisfied that she was negligent, but they could not be satisfied, beyond reasonable doubt, that there was “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 … merited criminal punishment”.[2]

   [2]R. v.De’Zilwa at 423 [46]. See also R. v. Shields at 724 and R. v. Wright [1999] 3 V.R. 355 at 356 [1] and 358 [9] – [12].

1. For these reasons I would grant the application for leave to appeal against conviction, allow the appeal, quash the convictions and the sentences passed thereon and direct that a judgment and verdict of acquittal be entered on each count.

SCHEDULE

1.The offences relate to a motor vehicle collision on the Murray Valley Highway about two hundred metres west of Torrumbarry Weir Road, Patho, at about 2.05 p.m. on Saturday 13^th April 2002.  On that day, Troy Geoffrey Douglas travelled from Cohuna to Echuca driving a Triton utility with Erin Jade Monro and Justin Lawrence Crawford as his passengers.  Prior to returning to Cohuna, they attended at the McDonald’s restaurant in Echuca at about 1.30 p.m.  As they proceeded though the drive-through service lane, Mr Douglas recognised a 1981 model white Holden Commodore sedan as a vehicle that he had sold to Alexander Christopher Reid about six months previously. 

2.Mr Douglas and his companions saw that the applicant was driving the white Commodore with Mr Reid as her passenger.  They briefly exchanged greetings with the applicant and Mr Reid.

3.Upon leaving the McDonald’s restaurant, Mr Douglas proceeded homeward to Cohuna along the Murray Valley Highway.  He recollected seeing the applicant’s car travelling about half a kilometre behind them on the same road.  He also recalled that he was travelling at about 100 kilometres per hour.  As they approached the Torrumbarry Weir turn off, Mr Douglas encountered a build-up of traffic with a number of cars turning off towards the Torrumbarry Weir.  The applicant’s vehicle had caught up and was about twenty metres behind him.  Ahead of him, Mr Douglas saw a 1970 model Mercedes Benz driven by Alexander John Riley.  He was on his way to visit his friends, the Fullertons, whose property was accessed by a gravel driveway off the south side of the highway.  About fifty metres before the Fullertons’ driveway, Mr Riley proceeded to slow down and he switched on his left turn indicator.  He moved leftward on to the gravel shoulder.  His recollection was that he was about half on the gravel and half on the main roadway.

4.Mr Douglas could see that Mr Riley was in the process of turning left off the road.  He recalled seeing the Mercedes Benz slowing down and travelling half off the tarmac and half on the gravel shoulder.  He did not actually recall seeing the Mercedes Benz’s indicators and brake lights operating.  Mr Crawford clearly recalled that the Mercedes Benz had the left-hand indicator and brake lights operating and saw that the vehicle was turning into the driveway off to the left.

5.Mr Douglas slowed down as he came up behind the Mercedes Benz.  He then switched on his right-hand turn indicator and overtook Mr Riley’s vehicle.  He recalled that he moved his vehicle halfway across the centre line on to the opposite side of the road before moving back on to the correct side of the road.  Mr Crawford had a similar recollection and noticed nothing unusual or worrying about the overtaking manoeuvre.  Ms Monro recalled that Mr Douglas performed a “normal overtake”.

6.While executing this manoeuvre, Mr Douglas saw an oncoming white Ford station wagon towing a trailer.  This vehicle was driven by the deceased, Donald Charles Major.  Mr Douglas recalled that the deceased’s vehicle was about 100 metres away when he moved back into the correct lane ahead of Mr Riley’s vehicle.  Mr Riley recalled being overtaken by the utility.  He had turned or was turning into the driveway when he heard a crunch behind him.  He then saw that the applicant’s vehicle had collided with the deceased’s vehicle on the northern side of the road.

7.The deceased’s vehicle careered off northward while the applicant’s vehicle rotated clockwise and came to rest on the south side of the road facing the opposite direction of its travel.  Mr Douglas looked in his rear vision mirror and saw that a collision had occurred behind him.  He turned around and returned to render assistance.  He and his companions used their mobile telephones to contact the emergency services.  Mr Douglas pulled up about 20 metres away from the crash scene.  He was going towards the deceased’s vehicle when the applicant shouted out to him to say that Mr Reid was hurt.  He went over to her.  The applicant told Mr Douglas that she thought that Mr Reid was not breathing.  Mr Douglas saw that Mr Reid was breathing but that he “was in a bad way”.  The applicant was injured and in pain.  Mr Douglas did not clearly recall what the applicant said to him about the accident save that she said something about not seeing the other car.

8.A registered nurse, Margaret Beverley Hulbert, was one of the passers by who stopped to render assistance.  She parked her car and approached the people present.  She saw the applicant lying prone on the gound near the car.  She found that the applicant was hysterical and in pain.  The applicant said that her ankles felt that as if they were about to explode. She recalled that the applicant said, “That bloody Mercedes, it wasn’t indicating, I didn’t know what to do,” or similar.  [At the trial, Mr Riley denied that he moved back towards the right.]  Sergeant Nicoll arrived at 2.21 p.m.  He saw Mr Reid in the front passenger seat of the applicant’s car.  The applicant lay on the grass verge beside the open driver’s door.  Ambulance officer Joanne Kerr arrived at 2.24 p.m. and attended to the applicant who was crying out in pain.  She told Ms Kerr that her name was Anita and confirmed that she was the driver of the vehicle.  When Ms Kerr asked the applicant what had happened, she said, “I don’t know what’s happened.”  Ms Kerr asked whether the applicant had lost consciousness and she said”No”.  From her observations, she concluded that the applicant was fully alert.

9.An air ambulance helicopter carrying flight paramedic Kelvin Charleton Walsh arrived at 2.38 p.m.  Mr Walsh was informed that the deceased was dead.  He saw that other ambulance officers were in the process of extricating Mr Reid from the applicant’s car.  Mr Walsh spoke to the applicant to ascertain her level of consciousness.  He asked her whether she remembered what happened and she said that she did.  She told him that she was overtaking a vehicle and collided with another vehicle.  She thought that she might have been unconscious for a short while but she wasn’t sure.  She recalled falling out from the vehicle and lying there until the ambulances arrived.  She confirmed that she was the driver of the vehicle.  The applicant and Mr Reid were flown by air ambulance to the Alfred Hospital.

10.Senior Constable Dettmann and Senior Constable Mears of the Major Collision Unit, attended the scene about 5.23 p.m.  Senior Constable Dettmann found that the deceased’s vehicle had sustained heavy damage to the driver’s side commencing at the front driver’s corner and continuing along the driver’s side.  The air bag had deployed but partially missed the deceased because of the angle at which the car had been struck.  Tyre marks indicated that the deceased’s vehicle had moved out on to the gravel shoulder and braked heavily to avoid collision with an oncoming vehicle.

11.Senior Constable Mears recalled that the main impact to the applicant’s vehicle was on the front passenger side, forcing the bodywork across towards the driver’s side.  On the deceased’s car the main impact was to the driver’s side, consistent with the passenger side of the applicant’s vehicle colliding with the driver’s side of the deceased’s vehicle while travelling at an angle across the roadway.

12.The applicant’s motor vehicle was subsequently examined by Senior Constable Borg of the Mechanical Investigation Unit.  He found that the vehicle was unroadworthy due to perished stabiliser bar brushes, but that was not a defect which would have contributed to the accident.  He examined the deceased’s vehicle and found it to be roadworthy and free of any fault which could have contributed to the collision.  There was oil splatter on Mr Riley’s vehicle consistent with the collision occurring as he was turning into the Fullertons’ driveway.

13.Expert evidence was given by Sergeant Bellion.  After analysing the data gathered by the investigating police, he reached a number of conclusions which are set out as follows:

(a)at the time of impact, the deceased’s car was travelling north easterly at 91 kilometres per hour;

(b)at the time of impact, the applicant’s vehicle was travelling at 62 kilometres per hour in a diverged right attitude towards the south west;

(c)at the commencement of its four-and-a-half metre long skid, the deceased’s car was travelling at 94 kilometres per hour;

(d)at the commencement of its 16.2 metre long skid, the applicant’s car was travelling at 83 kilometres per hour;

(e)         the duration of the skid of the applicant’s vehicle was about 0.8     of a second;

(f)the duration of the skid of the deceased’s vehicle was 0.17 of a second;

(g)after factoring in the normal reaction times of the average driver unaffected by alcohol or drugs, Sergeant Bellion calculated that the deceased’s perception and reaction response leading to braking as having commenced at 44 metres and 1.67 seconds prior to impact;

(h)he calculated the applicant’s perception and reaction response leading to braking as having commenced about 15 metres and 2.3 seconds prior to impact;

(i)at the calculated times of reaction, the vehicles would have

been about 111 metres apart.

14.Sergeant Bellion stated that, on a 100 kilometres per hour speed limited roadway, the overtaking sight distance for safe overtaking is 750 metres, which allowed a two-and-a-half second perception and reaction response time for a vehicle travelling at the speed limit to overtake a vehicle that is travelling about twenty kilometres per hour slower.  He stated that 360 metres was the intermediate overtaking sight distance for a vehicle travelling at 100 kilometres per hour to safely brake and avoid a head-on collison.  If a driver pulled out to overtake with a separation distance less than the intermediate overtaking sight distance, where both vehicles were travelling at about 100 kilometres per hour, there was a risk of a head-on collison.

15.The applicant stood mute and did not call any evidence.

BUCHANAN, J.A.:

1. I have had the advantage of reading the draft reasons for judgment prepared by Callaway, J.A.  I agree, for the reasons stated by his Honour, that the appeal should be allowed, the verdicts set aside and verdicts of acquittal entered, on the ground that the verdicts are unsafe and unsatisfactory. 

1. Immediately prior to the collision that caused the death and serious injury the applicant’s motor car was neither exceeding the speed limit nor being driven at a speed that was inappropriate in the circumstances.  The applicant was not affected by drink, drugs or tiredness.  She was not driving aggressively or erratically.  The applicant made an error of judgment in a situation of sudden crisis.  In my view a reasonable jury properly instructed could not be satisfied beyond reasonable doubt that the applicant’s decision to overtake Riley’s motor car and her panicked reaction to the sudden presence of the deceased’s station wagon constituted criminal negligence as that term was described in R. v. De’Zilwa[3].

VINCENT, J.A.:

[3](2002) 5 V.R. 408 at 423 per Charles, J.A.

1. I agree, for the reasons advanced by Callaway, J.A., that this appeal should be allowed, the verdicts set aside and verdicts of acquittal entered.

1. As Charles, J.A. pointed out in R. v. De’Zilwa[4]:

   [4](2002) 5 V.R. 408 at 422.

“In recent years judges of this court have on numerous occasions stated that culpable driving is a species of involuntary manslaughter, and is punishable as such, emphasising that the gross departure from the standard of reasonable care of which the section speaks is the equivalent of criminal negligence sufficient to support the crime of manslaughter.”

There was, in my opinion, nothing in the evidence capable of supporting such a finding.

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