R v Taylor

Case [2019] QCA 263

SUPREME COURT OF QUEENSLAND

CITATION:

R v Taylor [2019] QCA 263

PARTIES:

R
v
TAYLOR, Brock Roy
(appellant)

FILE NO/S:

CA No 72 of 2019
DC No 492 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 14 March 2019 (Muir DCJ)

DELIVERED ON:

22 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2019

JUDGES:

Morrison and McMurdo JJA and Bradley J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted by a jury of one count of dangerous operation of a motor vehicle causing grievous bodily harm, before leaving the scene – where the appellant was cross-examined at trial on his failure to provide an expert briefed on his behalf with his version of events prior to trial, suggesting recent invention of that version of events – where the appellant contends that the learned primary judge erred in allowing the cross-examination of the appellant on that point, on the basis that the line of questioning infringed the appellant’s right to silence – whether the cross-examination resulted in a miscarriage of justice

Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14, cited
Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34, applied
R v Vannatter [1999] QCA 104, applied

COUNSEL:

I A Munsie for the appellant
J A Geary for the respondent

SOLICITORS:

Australian Law Partners for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I have read the reasons of Bradley J and agree with those reasons and the order his Honour proposes.

  2. McMURDO JA:  I agree with Bradley J.

  3. BRADLEY J:  On 14 March 2019, a jury in the District Court at Southport returned a verdict finding the appellant Brock Roy Taylor guilty of dangerous operation of a motor vehicle causing grievous bodily harm, before leaving the scene.  The essence of the offence is the operation of the vehicle in a way that is potentially dangerous to members of the public by presenting a risk over and above that ordinarily associated with driving.[1]  The appellant leaving the scene before a police officer arrived was an aggravating circumstance, because the appellant ought reasonably to have known that a person had been injured.

    [1]Jiminez v The Queen (1992) 173 CLR 572 at 579 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ), citing Barwick CJ in McBride v The Queen (1966) 115 CLR 44 at 49-50.

  4. On 27 March 2019, the appellant appealed against his conviction.  The sole ground of appeal is that the learned primary judge erred in allowing cross-examination of the appellant in relation to recent invention.

    Summary of facts

  5. The relevant circumstances may be briefly stated.  On 8 March 2017 at about 8.50 pm, the appellant was driving a Toyota Hilux Utility northbound on Marine Parade between Coolangatta and Kirra.  The…

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Details
AGLC
R v Taylor [2019] QCA 263
Case
[2019] QCA 263
Decision Date

CaseChat Overview and Summary

The appellant was convicted by a jury of one count of dangerous operation of a motor vehicle causing grievous bodily harm, before leaving the scene. The sole ground of appeal is that the learned primary judge erred in allowing cross-examination of the appellant in relation to recent invention. The appellant contends that the line of questioning infringed the appellant’s right to silence.

The court considered whether the cross-examination resulted in a miscarriage of justice. The court noted that the common law’s traditional objection to any form of compulsory interrogation finds expression in the principle that a person, who reasonably believes he or she is suspected of having committed an offence, is entitled to remain silent when questioned or asked for information about the offence by any person in authority. It cannot be suggested, by questions asked or comments made by the Crown or the trial judge or by evidence led by the Crown, that a defendant’s consciousness of guilt may be inferred from his or her exercise of the right to silence. However, the court found that it was not suggested in cross-examination that the fact the appellant did not tell the police about hitting the brakes “hard” was a basis to conclude he had recently invented his evidence, or embellished or tailored it. The court also found that the cross-examination about the appellant’s failure to communicate his version was limited to his failure to speak to Dr Casey. The decision not to give Dr Casey a version of events different from that found in the police and prosecution materials was not an exercise of any common law right to silence. It was a forensic decision relating to the conduct of the appellant’s defence at trial.

The court dismissed the appeal and affirmed the conviction and sentence.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

On 27 March 2019, the appellant appealed against his conviction. The sole ground of appeal is that the learned primary judge erred in allowing cross-examination of the appellant in relation to recent invention.Summary of facts The relevant circumstances may be briefly stated. On 8 March 2017 at about 8.50 pm, the appellant was driving a Toyota Hilux Utility northbound on Marine Parade between Coolangatta and Kirra. The vehicle he was driving suddenly crossed the double white lines and a painted traffic island into the path of a southbound Toyota Corolla hatchback. The two cars collided head on. The three occupants of the Corolla were injured; one of them required surgery to save his life. The appellant reversed the Hilux backwards from the other vehicle, leaving his car’s front grill behind, and drove away from the scene. The Hilux was found the following day in Tweed Heads, where it had been driven along a dirt road and into a cyclone wire fence. On 13 March 2017, the appellant attended the Coolangatta Police Station with his lawyers and read a prepared statement, in which he admitted he was the driver of the Hilux at the time of the collision. The trial was conducted over four days from 11 March 2019. The appellant pleaded not guilty. The Crown prosecutor called one of the passengers and the driver of the Corolla, a senior constable who attended the scene shortly after the collision and a Queensland Police Service vehicle inspection officer. The appellant’s defence called Dr Robert Casey, a mechanical engineer, the appellant himself and a person in a relationship with the appellant who had dinner with him at a nearby hotel on the night of the collision. The jury retired at 12.54 pm on 14 March 2019 and returned at 3.42 pm with the verdict of guilty. On 18 March 2019, the appellant was sentenced to imprisonment for two years, to be suspended after serving eight months, with an operational period of two years. He was disqualified from holding or obtaining a driver’s licence for a period of two years from that date.The trial and the cross-examination At the trial, the defence counsel called Dr Casey as a witness. Dr Casey was a mechanical engineer with many distinguished academic qualifications, membership of the Institute of Engineers Australia and a substantial history of publication and work in the field of automotive forensics. Two reports by Dr Casey were admitted into evidence. In the course of cross-examination by the Crown prosecutor, Dr Casey agreed that when briefed for his first report, he was not provided with an account by the appellant of the collision. A little later, he volunteered that he “never got the opportunity to ask Mr Taylor about the circumstances.” The next day, when the appellant was cross-examined, there was an objection to the Crown prosecutor’s comment to the effect that the appellant had not told Dr Casey about the position of the Hilux at the time of the collision. This is recorded in the following passage from the transcript:[2]“Well, you could have reversed out and gone north as well, couldn’t you, just as easily?--- I was on the other side of the road already, so I didn’t want to do another U-turn over double white lines.No, but I’m saying you could have reversed back into the lane that – on – from which you crossed and then gone north?--- No, I was already sp – pretty much spun the other way.So we haven’t heard this before, have we?--- What’s that?The position of your vehicle?--- No. No, I don’t think - no. No.No. In fact, you didn’t even tell your expert report writer, Dr Casey, did you?--- No, I didn’t.MR MUNSIE: Objection. I ask the jury be excused.”[2]The questions were put by the Crown prosecutor, Mr Churchill, and the objection was taken by the defence counsel, Mr Munsie.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Although the learned trial judge had given the direction to the jury, extracted above, the appellant contended the direction could not cure the prejudice caused to the appellant’s case by the cross-examination. On this basis, it was submitted, it was not possible for this court to conclude that no miscarriage of justice had occurred.Consideration of the appellant’s submissions The common law’s traditional objection to any form of compulsory interrogation finds expression in the principle that a person, who reasonably believes he or she is suspected of having committed an offence, is entitled to remain silent when questioned or asked for information about the offence by any person in authority. This right to silence is protected in a number of ways. No adverse inference can be drawn against such a person by reason of his or her failure to answer the questions or provide the information. It cannot be suggested, by questions asked or comments made by the Crown or the trial judge or by evidence led by the Crown, that a defendant’s consciousness of guilt may be inferred from his or her exercise of the right to silence. It cannot be suggested that a defence raised at the trial is a new invention or is suspect or unacceptable because the defendant, exercising the right, was previously silent about it.[5] Nor can such a submission be put simply because a defendant did not disclose his or her defence until the appropriate stage of the trial.[6][5]Petty v The Queen (1991) 173 CLR 95 at 99 (Mason CJ, Deane, Toohey and McHugh JJ).[6](1991) 173 CLR 95 at 111 (Brennan J). It is well-established that questions and submissions inferring recent invention cannot be put based on a failure of an accused to provide an explanation to the police or a failure to notify the prosecution about a defence before the appropriate time at the trial. The appellant’s contention that a miscarriage of justice could have occurred, by reason of the cross-examination, cannot be accepted. There are three reasons. First, it was not suggested in cross-examination that the fact the appellant did not tell the police about hitting the brakes “hard” was a basis to conclude he had recently invented his evidence, or embellished or tailored it. The Crown prosecutor did not attack the appellant’s exculpatory evidence simply because he exercised his right to remain silent about it when he was questioned by police. It was put to the appellant that fleeing the scene of the collision was not consistent with his evidence being truthful. However, no link was drawn between that part of his conduct and his decision, some days later, to make only a limited and pre-prepared statement to the police. Second, the cross-examination about his failure to communicate his version was limited to his failure to speak to Dr Casey. No relevant right to silence operated with respect to the decision to brief Dr Casey. The decision not to give Dr Casey a version of events different from that found in the police and prosecution materials was not an exercise of any common law right to silence. It was a forensic decision relating to the conduct of the appellant’s defence at trial.