R v Scholl (Ruling No 2)
[2009] VSC 237
•4 June 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1348 of 2008
| THE QUEEN | Plaintiff |
| v | |
| CHRISTIAAN BERNARD SCHOLL | Defendant |
---
JUDGE: | KAYE J | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 3 June 2009 | |
DATE OF RULING: | 4 June 2009 | |
CASE MAY BE CITED AS: | R v Scholl (No 2) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 237 | |
---
CRIMINAL LAW – Culpable driving – No case submission – Inferences.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose SC with Mr A Grant | The Solicitor for Public Prosecutions |
| For the Accused | Mr T Forrest QC with Mr P Higham | Andrew George Solicitors |
HIS HONOUR:
In this matter the accused man, Christian Scholl, is charged with 11 counts of culpable driving causing death and eight counts of negligently causing serious injury. Those charges arise out of a collision on 5 June 2007 between a prime mover and trailer driven by Mr Scholl and a passenger train at a level crossing on the Murray Valley Highway some 6.1 kilometres north of Kerang. The Crown has closed its case. Mr Forrest Queen’s Counsel who, with Mr Higham, appears for the accused, has submitted that there is no case to answer both on the 19 charges on the presentment and also on the alternative charges of dangerous driving causing death or serious injury under s 319 of the Crimes Act.
The collision occurred shortly after 1.30 pm on 5 June 2007. Immediately before the collision, Mr Scholl was driving away from Kerang in a broadly northerly direction on the Murray Valley Highway. The train with which he collided was travelling in an easterly direction from Swan Hill to Melbourne. At the time of the collision there were flashing red incandescent stop signs operating at the level crossing. The train was travelling at about 95 kilometres per hour. On his approach to the level crossing, Mr Scholl had been driving at just over the speed limit of 100 kilometres per hour. The flashing lights had been activated almost 25 seconds before the train entered the crossing. At that stage, the train was 665 metres west of the level crossing and the accused’s vehicle was a little more than that, south of the crossing.
It is common ground that the accused did not see the flashing lights or the approach of the train until shortly before he reached the crossing. He then applied his brakes and veered to the left. The front right corner of the trailer collided with the second and third carriage of the train. As a result, 11 passengers on the train died and a number were injured, eight of them seriously.
As a result of the application of the brakes, the trailer on the prime mover left 50 metres of skid marks up to the point of impact. Allowing for reaction time, Sergeant Bellion has estimated that Mr Scholl first saw the lights and the train at least 91 metres from the crossing. In cross‑examination, allowing for longer reaction and perception time and for a delay between the application of the brakes and the prime mover skidding, Mr Bellion stated that the first perception could have been some 140 metres south of the crossing.
On the evening of the accident, Mr Scholl was interviewed in the Alfred Hospital where he was an in-patient. He told investigators that he did not see the flashing lights at the crossing until it was too late for him to stop.
The Crown case is that the accused did not observe the approach of the train and the warning lights at the crossing because he had failed to keep a proper lookout. Further, the Crown alleges that that failure by the accused occurred over such a period of time on his approach to the crossing that it constituted criminal negligence as explained by the Court of Appeal in R v Da Silva[1]; or alternatively that that failure constituted dangerous driving under s 319 of the Crimes Act.
[1][2002] 5 VR 408 at 423 Charles JA.
Mr Forrest has submitted that there is insufficient evidence upon which the jury could be satisfied beyond reasonable doubt that the accused failed to keep a proper lookout for such a substantial period of time as to constitute either criminal negligence, which is an element of the 19 charges on the presentment, or to constitute dangerous driving.
Mr Forrest’s submission focussed largely on the evidence of Sergeant Exton and Sergeant Bellion of the Major Collision Investigation Unit as to site tests conducted by them at the scene of the collision on 13 June 2007. On that day Sergeant Bellion and Sergeant Exton drove a prime mover similar, to that driven by the accused man at the time of the accident, over a distance of 1000 metres in a northerly direction to the crossing.
They first drove over that stretch of the roadway at ten kilometres per hour and that drive-through was filmed. They then drove on a second occasion over the same stretch of highway at ten kilometres per hour, and at the same time a train was approaching from the west, from the same distance at ten kilometres per hour. That approach was also videoed.
At the time of those tests, the red lights at the crossing were activated. Both Mr Bellion and Mr Exton gave evidence that they could see the flashing lights and the train on its approach, on the second run, over one kilometre. Mr Baiguerra and Mr Murfitt of the Multimedia Unit of Victoria Police also gave evidence as to their ability to see the red lights on their approach to the crossing.
Mr Forrest has submitted that the Crown case as to the failure of Mr Scholl to keep a proper lookout, depends almost entirely on the evidence of Mr Bellion and Mr Exton. He submitted that the circumstances of the test runs on 13 June were so different to those under which the accused approached the crossing on the day of the accident, that the jury could not conclude beyond reasonable doubt from the evidence of the site tests, that the accused had failed to keep a proper lookout on his approach to the crossing over such a substantial period as to constitute either criminal negligence or dangerous driving.
In support of this submission, Mr Forrest also referred to the evidence of witnesses who had been travelling in a northerly direction on the Murray Valley Highway behind the accused shortly before the collision. He referred to the evidence of Mr Lynch whose statement to the police and whose evidence at the committal proceeding was read into the evidence of this trial. Mr Lynch stated in that evidence that he only saw the lights and the train after he saw smoke from the accused’s tyres. At that stage Mr Lynch was travelling behind the accused’s vehicle, some 50 to 80 metres back.
Mr Forrest referred to the evidence of Mr Scott, who was also travelling behind the accused. He stated that he only saw the lights at the crossing when he was some 100 metres from them. Mr Charleson who arrived at the scene very shortly after the accident, gave evidence that he first saw the lights approximately 200 metres from the crossing. However, in cross-examination Mr Forrest contended that Mr Charleson had accepted that he only saw the lights after he appreciated that a collision had occurred, which was when he was some 100 metres from the impact.
Mr Forrest submitted that there were significant differences between the conditions of the test runs on 13 June and the conditions in which Mr Scholl approached the crossing on 5 June. In summary he referred to the differences in the weather conditions on the two days. The evidence is that on 5 June there was bright sunshine; whereas on 13 June the weather somewhat overcast with intermittent sunshine.
He further referred to the fact that the test conditions occurred eight days closer to the winter solstice and therefore the sun was in a different alignment and orientation to the approach of Mr Scholl to the collision than it had been on the day of the accident.
He also referred to the fact that the test itself was conducted under very different conditions to those in which Mr Scholl approached the crossing on the day of the accident. In particular, at the time of the test the road was closed to traffic and therefore those conducting the tests did not have to focus any attention on oncoming traffic or traffic going in the same direction. In addition, both Mr Bellion and Mr Exton knew that the lights were flashing and the train was approaching, before they commenced their runs, and indeed both of them gave evidence that they had sighted the flashing lights and the approach of the train at the very commencement of their runs.
In response, Mr Rose of senior counsel, who appears with Mr Grant for the Crown, has submitted that there is evidence from which the jury might reasonably conclude that the accused failed to keep a proper lookout for such a period of his approach to the crossing, as to constitute criminal negligence or dangerous driving.
First, he submitted that it is a jury question as to the weight to be given to the site tests and the evidence of Mr Bellion and Mr Exton. Whilst Mr Rose acknowledged there were some differences in the conditions prevailing on 5 June to those under which the tests were conducted, he submitted it was for the jury to determine what weight was to be given to those differences and how those differences impacted on the evidence of Mr Bellion and Mr Exton.
In addition Mr Rose referred to the evidence of other witnesses who he submitted, supported the proposition that on the day of the accident the flashing red lights could be seen from the south at a distance further than they were appreciated by the accused man on that day. He referred to the evidence of Mr Peacock, a local farmer who attended the scene after the collision and said that he saw the flashing red lights approximately halfway between House Lane and the level crossing.
He referred to the evidence of Mr Charleson in chief, in which Mr Charleson stated that he first saw the lights some 200 metres from the crossing.
Mr Rose relied on the evidence of the train driver, Mr Lidster, who stated that he saw the truck driven by Mr Scholl approach when the train was some 500 metres from the crossing. Further Mr Rose also referred to the evidence that vehicles, which were oncoming to Mr Scholl and travelling south, had either stopped or were coming to a stop shortly before the collision, and he submitted that the conduct of those vehicles should have alerted the accused man to the fact that a train was approaching the level crossing.
The principles which are relevant to the application made by Mr Forrest are now well-established and not controversial. The test which I must apply is not whether the accused man should be convicted. Rather, the test for me is whether, on the evidence, the jury could lawfully convict the accused, see May v O’Sullivan[2]. In particular, the test is not whether a verdict of guilty would be unsafe and unsatisfactory and thus liable to be set aside on appeal. Even if the Crown case is weak it must be left to the jury, unless on the evidence the accused man could not lawfully be convicted, see R v Doney[3]; Attorney General’s reference No.1 of 1983[4].
[2](1955) 92 CLR 654 to 658.
[3](1990) 171 CLR 207 to 215.
[4](1983) 2 VR 410 at 417.
In this case, the Crown in effect will be inviting the jury to infer that the accused did not see the train and the lights until it was too late, because he failed to keep a proper lookout. In a case in which the Crown essentially relies on an inference, the trial judge is not entitled to direct an acquittal where at the end of the Crown case he considers there is still open and not excluded a reasonable hypothesis consistent with innocence; see Attorney General’s reference No.1[5].
[5]Above at 416.
In such a case, the applicable test for the trial judge is whether the jury could rationally conclude that any inference or hypothesis consistent with innocence is not reasonably open on the evidence. In applying that test, it is important to bear in mind that the drawing of inferences is quintessentially the province of the jury as the sole judges of the fact in the trial, see R v Cengiz[6].
[6](1998) 3 V R 720 at 721, Ormiston JA, and 735 Harper AJA.
In applying those principles to this case, it is appropriate for me to commence with the evidence of Sergeant Bellion and Sergeant Exton as to the sight tests which they conducted on 13 June 2007. In my view, at the least the jury is entitled to, and could, act on that evidence for the conclusion that at or about the time of the accident, it was physically possible for the human eye to see the lights flashing and the train on its approach from the west for a greater part of the approach of the accused man over the last 670 metres to the level crossing. I do not consider that the differences between the tests conditions and the day of the accident are such that a jury could not lawfully reach that conclusion.
Furthermore, and notwithstanding those differences, I consider that a jury would be entitled to rely on the sight tests as a piece of evidence in support of the conclusion contended for by the Crown that the accused would have seen the approach of the train and the flashing lights at the crossing, if he had been keeping a proper lookout over the last half kilometre or so of his approach. That is, the evidence of the sight tests is admissible and, depending on the weight given to it by the jury, capable of being probative towards that conclusion.
In saying that, I accept that there are quite substantial differences in the conditions prevailing on the test of 13 June and those which prevailed when Mr Scholl drove his vehicle towards the intersection on 5 June. There were visual differences. The orientation of the sun and the weather were different. Those factors would affect issues such as the surface glare and the extent to which the flashing lights stood out against the background. Pausing there, while those differences are not inconsequential, those differences essentially go to issues of weight and do not exclude the potential of the tests to be probative of the conclusion contended for by the Crown.
There were also significant differences in the circumstances of those who made their observations on the test on 13 June, and the position of Mr Scholl on 5 June. On that day, Mr Scholl was driving in traffic. As a driver he was obliged to keep a lookout for a host of factors including traffic going in both directions, side roads, road curves and the like. By contrast, Mr Exton and Mr Bellion were not troubled by traffic, they knew before they started the test that the train was approaching from their left. They knew that the flashing lights were already engaged. They were conscious when the commenced their tests that those were matters in respect of which their observations were to be directed. In addition, the first two tests were conducted at slow speeds which gave them, quite clearly, a much better opportunity to make observations than a truck driver driving at the lawful speed limit.
Those differences, all cogently pointed out by Mr Forrest, are not insubstantial, but ultimately they go to matters of weight which, as such, are matters for the jury as judges of the fact and not from myself as the presiding trial judge. In my view, while not unsubstantial, they do not negate entirely the potential of the site tests to support the Crown case as to what the accused man should have observed if he had kept a proper lookout.
I also agree with Mr Rose that there are other pieces of evidence which the jury could use in conjunction with the evidence of Sergeants Bellion and Exton. First, the evidence of Mr Peacock and Mr Charleson provides some support for the evidence of Sergeants Bellion and Exton, in that each gave evidence that they saw flashing lights at least 200 metres from the crossing on the day of the accident. There are limitations relating to the evidence of both witnesses. When he approached, Mr Peacock knew a collision had occurred at the intersection and he was focussed on that. Mr Charleson, in cross‑examination, appeared to alter his evidence in the manner contended for by Mr Forrest. But again, those matters are matters of weight for the jury and it is not for me to trespass on their domain.
Finally, the evidence of on-coming cars travelling south, which had either slowed substantially or stopped before the arrival of the train, are relevant to the application by Mr Forrest. Again, it is a matter for the jury to determine whether those vehicles had stopped or slowed down in a manner and to an extent to which their conduct might have alerted the accused to the approach of the train if he had been keeping a lookout.
Thus there are a number of pieces of evidence which at the least could be relied on and used by the jury in supporting the conclusion contended for by the Crown, that is that the accused man failed to keep a proper lookout for a substantial part of his approach. I acknowledge that there are real issues of weight affecting each of those items of evidence, however, it is not for me to assess the weight to be given to the evidence. Taken together, the evidence of sight tests, the evidence of Messrs. Peacock and Charles on, and the evidence of the conduct of the southbound vehicles on their approach to the crossing, in combination, is such that in my view the jury could conclude beyond reasonable doubt that the accused man did fail to keep a proper lookout for such a substantial period on his approach to the crossing as to constitute either criminal negligence or dangerous driving.
Thus, bearing in mind the principles which apply in determining the submission made by Mr Forrest, there is evidence on which a jury could lawfully convict the accused on the charges on the presentment or on the alternative charges of dangerous driving causing death or serious injury. That conclusion does not reflect at all on the strength or weakness of the Crown case or its merits. For, as I stated, that is not my domain. But the evidence is such that at law it is for the jury to determine whether the Crown has made out its case against the accused.
For those reasons I do not uphold the no case submission made on behalf of the accused man.
3
0