R v Perham - [2016] QCA 123

SUPREME COURT OF QUEENSLAND

CITATION:

R v Perham [2016] QCA 123

PARTIES:

R
v
PERHAM, Gary Warren
(appellant)

FILE NO/S:

CA No 299 of 2015
DC No 269 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 4 December 2015

DELIVERED ON:

6 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2016

JUDGES:

Gotterson and Morrison JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty of dangerous operation of a vehicle causing death arising from a collision between the appellant’s truck and a motorcycle – where the issue for the jury was whether the appellant failed to keep a proper lookout – where the trial judge also directed the jury on mistake of fact under s 24 of the Criminal Code (Qld) on the basis of the appellant’s evidence that he had looked and not seen any oncoming vehicle – where the trial judge posing the question to the jury on mistake of fact referred to the motorcycle approaching with its headlight on – where that misstated the evidence, but the misstatement was corrected by redirections – whether there was a misdirection

Criminal Code (Qld), s 24

R v Plath[2003] QCA 567, considered
R v Wilson [2009] 1 Qd R 476; [2008] QCA 349, considered

COUNSEL:

M J Copley QC for the appellant
V A Loury for the respondent

SOLICITORS:

Arthur Browne & Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: I agree with the order proposed by Mullins J and with the reasons given by her Honour.
MORRISON JA: I have read the reasons of Mullins J and agree with those reasons and the order her Honour proposes to dismiss the appeal.
MULLINS J: The appellant was found guilty by a jury after trial in the District Court of dangerous operation of a vehicle causing death arising from a collision that occurred on 14 October 2013 on the Flinders Highway. The appellant was turning his truck from the westbound to the eastbound side of the highway, when the truck and the motorcycle travelling in an eastbound direction that was being ridden by Mr Stephen Smith collided. Mr Smith died at the scene due to head and chest injuries sustained in the collision. The principal issue for the jury was whether the appellant failed to keep a proper lookout.
The jury were directed on mistake of fact under s 24 of the Criminal Code (Qld), at the request of both counsel on the basis of the similarity between the circumstances in the appellant’s case and those that were the subject of R v Wilson [2009] 1 Qd R 476. There is only…

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 Perham

Details

AGLC: R v Perham [2016] QCA 123
Case: [2016] QCA 123
Decision Date: 6 May 2016

CaseChat Overview and Summary

The appellant, Perham, appealed against his conviction for dangerous operation of a vehicle causing death, following a collision between his truck and a motorcycle. The case was heard in the Queensland Court of Appeal. The central issue in the appeal was whether the jury was misdirected or failed to be directed on the issue of whether Perham failed to keep a proper lookout, and whether the mention of the motorcycle’s headlight being on in the trial judge’s direction to the jury constituted a misdirection.

The court examined whether the trial judge’s direction to the jury regarding a mistake of fact under section 24 of the Criminal Code (Qld) constituted a misdirection. The trial judge referred to the motorcycle's headlight being on, which was a misstatement of the evidence. However, this misstatement was subsequently corrected by the trial judge’s redirections. The court assessed whether this misdirection was significant enough to have led to a miscarriage of justice. The court concluded that the misdirection was corrected by the redirections, and therefore did not amount to a miscarriage of justice.

The Court of Appeal found that there was no miscarriage of justice and dismissed the appeal against the conviction. The reasoning was that any misdirection was corrected by the redirections, and thus did not affect the outcome of the trial. The appellant’s conviction for dangerous operation of a vehicle causing death was upheld.

Orders

Orders of the court

Appeal against conviction dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The jury were directed on mistake of fact under s 24 of the Criminal Code (Qld), at the request of both counsel on the basis of the similarity between the circumstances in the appellant’s case and those that were the subject of R v Wilson [2009] 1 Qd R 476. There is only one ground on which the appellant relies to appeal against the conviction which is that a miscarriage of justice occurred because the jury was asked to consider whether a mistaken belief was honest and reasonable by reference to a fact not established on the evidence.The evidence The collision occurred at about 9.45 am. It was a fine and clear morning. The road was a two lane highway with one lane for each direction of travel. The speed limit was 80 kilometres per hour. The road was straight and flat and from the collision point a driver travelling westbound had in excess of one kilometre of straight road ahead. The appellant was driving a Kenworth Prime Mover with a Tefco tipper semi-trailer. Mr Deemal was driving his HiLux twin cab vehicle behind the appellant’s truck in a westerly direction, after the truck had entered the westbound lane from the left and where traffic had been slowed to 40 kilometres per hour due to roadworks. Mr Deemal followed the truck and about 200 metres past the end of the roadworks he observed the truck indicate to turn right. The truck was travelling at approximately 10 kilometres per hour and did not stop before turning. Mr Deemal then turned on his left hand indicator to pass the truck on its left hand side which he did. Mr Deemal described what he saw when he was to the left of the truck:“As I came up beside the prime mover itself, as it was turning right, I noticed a motorbike that was around about 20 metres in front on the right-hand lane.” Mr Deemal observed that the motorcycle had its headlight on and was travelling in the middle of the right hand lane. (Mr Deemal was the only witness who gave evidence of observing the headlight being illuminated on the motorcycle.) The motorcycle looked like it was slowing down and Mr Deemal then saw the motorcycle drop to its right hand side and the rider leave the motorcycle. Both the motorcycle and the rider went under the truck. Mr Smith went under the front left hand steer tyre. The truck was still moving forward at that stage. Mr Deemal veered his vehicle to the left hand side of the shoulder about 20 metres ahead and got out of his vehicle to help. The truck had stopped. Mr Deemal saw the appellant jump out, come around to the front side of the truck to have a look, and then jump back in and reverse the truck back at least two metres. Mr Poole was driving his Nissan Patrol vehicle behind Mr Deemal’s vehicle which was behind the truck. They were coming out of the roadworks and Mr Poole estimated he was travelling at 80 kilometres per hour. Mr Poole moved his vehicle over to near the centre of the road to see if it was safe to overtake the truck and the HiLux and saw the motorcyclist coming from the other direction. He could not say precisely how far ahead the motorcycle was, but estimated 200 to 300 metres and decided he could not overtake. The motorcycle was black. He moved his vehicle back into the lane and continued driving, waiting for the motorcyclist to pass. The truck turned off to the right across the lane and braked and the HiLux and Mr Poole’s vehicle pulled off to the left onto the shoulder. Mr Poole saw the truck had stopped quickly. Mr Poole stopped at the scene. It was a very quick sequence of events. Mr Poole eventually had a conversation with the appellant. Mr Poole asked him what happened and the appellant told him “that he’d never seen – never – didn’t see him … it must have been a blind spot”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Perham [2016] QCA 123
PARTIES:	R v PERHAM, Gary Warren (appellant)
FILE NO/S:	CA No 299 of 2015 DC No 269 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 4 December 2015
DELIVERED ON:	6 May 2016
DELIVERED AT:	Brisbane
HEARING DATE:	7 April 2016
JUDGES:	Gotterson and Morrison JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty of dangerous operation of a vehicle causing death arising from a collision between the appellant’s truck and a motorcycle – where the issue for the jury was whether the appellant failed to keep a proper lookout – where the trial judge also directed the jury on mistake of fact under s 24 of the Criminal Code (Qld) on the basis of the appellant’s evidence that he had looked and not seen any oncoming vehicle – where the trial judge posing the question to the jury on mistake of fact referred to the motorcycle approaching with its headlight on – where that misstated the evidence, but the misstatement was corrected by redirections – whether there was a misdirection Criminal Code (Qld), s 24 R v Plath[2003] QCA 567, considered R v Wilson [2009] 1 Qd R 476; [2008] QCA 349, considered
COUNSEL:	M J Copley QC for the appellant V A Loury for the respondent
SOLICITORS:	Arthur Browne & Associates for the appellant Director of Public Prosecutions (Queensland) for the respondent