R v Walker

[2001] VSCA 28

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 242 of 2000

THE QUEEN

v.

DAVID CHRIS WALKER

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JUDGES:	WINNEKE, P., BROOKING and CHARLES, JJ.A.
WHERE HELD:	BALLARAT
DATE OF HEARING:	21 March 2001
DATE OF JUDGMENT:	21 March 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 28

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Criminal law – Culpable driving causing death – Admissibility of evidence of near collision and speeding at time before fatal incident.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. P.G. Priest, Q.C. with Mr. M. Croucher	Capell Burke

BROOKING, J.A.: 

1. On 12 December 1997, David Chris Walker was driving a car along the Murray Valley Highway at East Tallangatta when it collided with a motor cycle ridden by Andrew Charles Barton, killing him.  Walker was presented in the County Court at Wangaratta in August 2000, charged with culpable driving causing death, Count 3, and with two counts of reckless conduct endangering a person, Count 1 relating to Leanne Wilkinson and Count 2 to Adrian Seaton.  These other two counts arose out of a near accident some hours earlier on the same day, when a car driven by Seaton, in which Wilkinson was a passenger, narrowly avoided colliding with a car being driven in the opposite direction, allegedly by Walker.  This near accident occurred at about 9.30 a.m., when Seaton was driving east along the Murray Valley Highway from Wodonga to Corryong and was negotiating a sweeping bend not far from Koetong, when he and Wilkinson saw a car coming around the bend towards them.  It was half or two thirds on its wrong side of the road, the centre of the road being marked by double lines.  It did not alter course or speed and a collision was averted only by Seaton's veering to the left onto the shoulder of the road.  The other car was travelling at between about 120 and 130 kilometres per hour.

1. Seaton and Wilkinson reached Corryong and at about 11.30 a.m. left there to return to Wodonga.  They went through Koetong and, at a time when Wilkinson was driving, went through an extended area of road-works, which was subject to a reduced speed limit.  Wilkinson slowed down to about 60 kilometres per hour.  As their car emerged from the road-works section, travelling west, an oncoming car went past them into the road-works section, travelling at about 120 kilometres an hour.  Wilkinson said that this was the same car as the one that had nearly collided with their car about two hours earlier.

1. At this time Seaton's car was travelling towards Wodonga and the other car towards Corryong, whereas in the earlier incident the directions of travel were reversed. 

1. The collision in which Barton was killed occurred when his motorcycle was struck by a car which Walker was admittedly driving in an easterly direction along the Murray Valley Highway towards Corryong.  The motorcycle was admittedly travelling west towards Wodonga.  The collision occurred on a bend in the highway where there were double white lines and the speed limit was 100 kilometres per hour.

1. Walker is the only known eye-witness to the collision.  His car ended up in a ditch on the south side of the highway, partly at least on private property.  According to expert police evidence, what was found at the scene showed that Walker's car had crossed the double lines while negotiating a bend to the left and its driver had tried to correct its course of travel, resulting in over-steering to the left, and, while over-steering, the car was in the centre of the west-bound lane at the time of the collision.

1. The applicant told police he had been travelling at about 100 kilometres per hour and could offer no explanation for the collision.  Later he told them he might have been on the wrong side of the road at the time of the collision.

1. The judge severed from the presentment the first two counts, on the basis that the jury might be confused by the different directions that would have to be given to them about the two different offences charged on the three count presentment.  We are not called upon to consider the soundness of this ruling.

1. The trial of Walker on the count of culpable driving proceeded and he was convicted.  Now he seeks to appeal against conviction and sentence.

1. The applicant accepted that he alone had been driving his car on the day in question, but told police he had not been in any near collision that morning and had not driven at speed through the area of road-works.

1. The judge allowed the Crown, notwithstanding the defence objection, to lead evidence of the near collision with Seaton's car at about 9.30 a.m. and the subsequent sighting and behaviour of a car near the commencement of the road-works.  The Crown invited the jury to find that the applicant was the driver of the car which passed Seaton's car on the two occasions before the fatal accident.  The judge told the jury that they could not make any use of the evidence of the speed of the other car in the road-works area and told them that the evidence of observations there was for their consideration only as bearing on whether the applicant was shown to have been the driver of the car which nearly collided with Seaton's car at about 9.30 a.m.

1. The Crown cited three decisions to the Judge as bearing on the admissibility of the evidence of the near collision, the reception of which is the main subject of complaint on the application for leave to appeal against conviction, an application, I might say, which Mr Coghlan told us this morning he could not really resist.

1. The three decisions cited were R. v. Lewis[1], R. v. Buchanan[2] and R. v. Horvath[3].

   [1][1913] V.L.R. 227.

   [2][1966] V.R. 9.

   [3][1972] V.R. 533.

1. Most emphasis was placed by the Crown at the trial on the question left open in Buchanan and mentioned by Winneke C.J. at 12 to 13 and Sholl J. at 16, namely, whether the evidence of how the applicant had been driving some 35 or 40 minutes before the collision, held to be admissible as bearing on whether his driving at the time of the collision was affected by liquor, was admissible on the further ground that, having narrowly avoided a collision on the earlier occasion when driving very fast on the wrong side of the road, he had been forewarned by that incident and was driving with indifference to the consequences that might follow if he pursued a similar course of driving thereafter.

1. This was the basis on which the judge determined to admit the evidence of the near miss in the present case, following the invitation of the Crown to do so.  It is unnecessary to summarise the Crown's submission at the trial as it developed in the course of argument.  The judge gave a preliminary ruling on admissibility on 3 August.  He gave a final ruling on 9 August, in which he said:

"The relevance of the evidence is said to be that the driver of the sedan car, alleged to be the accused, would as a result of the 9.30 incident, have been forewarned of the consequences of travelling on the wrong side of the road and so have received on the day of the fatal accident, albeit about three and a half hours before, a clear warning of the potential consequences of such driving."

1. I had better set out quite a long passage from his Honour's charge, given consistently with his ruling:

"Now, if, but only if, you are satisfied beyond reasonable doubt it was the accused's car that forced the car driven by Wilkinson-Bosher and Seaton off the road in the way that Wilkinson-Bosher and Seaton say, then and only then may you use that finding in relation to the 9.30 incident for one purpose and one purpose only in this trial; namely, that on this day the accused had knowledge of the consequences that were likely to flow if his car moved onto its wrong side of the highway at or in close proximity to a bend;  that is, he had been forewarned of that at about 9.30 the very morning of the fatal accident.  That is, it is relevant to his state of mind in driving his car at the time.

From a repeat movement of his car onto its wrong side some three and a half hours later, the prosecution submit it is open to you to find his driving at the time of the fatal collision displayed an indifference by him to the consequences that might follow and in relation to which he had been forewarned of his car travelling on its wrong side of the road, and is a relevant factor to weigh in the balance in considering whether he departed to a gross degree from the standard of care of a reasonable driver in all the circumstances.  So there that evidence can go to his state of mind.

You recollect when I was defining the elements of the offence to you I said there was one further matter in this particular trial that it was necessary to give you directions in relation to.  This evidence relates to that.  So is that clear?  This is the only way, a limited way, in which the evidence could be used, if you accept it.

If you accept the prosecution case of the 9.30 incident and you are satisfied of the identity of the car and the similarity of the topography of the area - and this also is important - it would be open to you on the basis of the earlier driving of his car by the accused as evidence which it would be open to you to use to draw an inference as to his state of mind at the time of the collision.  You do not have to, but it would be open to you to so proceed.

Now the mere fact the car went onto its wrong side at about 9.30 a.m. at a different spot on the highway to where the fatal collision occurred would not of itself be sufficient to support the Crown contention.  Before you could even consider the way in which the prosecution presents its case on this aspect, you would have to be satisfied the topography of the highway in both areas was similar;  that is, there was a nexus between the two.  You would need to be satisfied there was no marked dissimilarity between the topography of the highway in both areas."

1. Other passages in the charge might be cited, it being indeed a charge which might be said to have been preoccupied with the matter of the earlier 9.30 incident, but the passage cited is enough for present purposes.

1. I have a clear view that the evidence of what took place in the incident at about 9.30 a.m. was not admissible on the applicant's trial on Count 3 and that the result of the reception of that evidence is that the verdict cannot stand. 

1. The Crown should not have been allowed to lead evidence of that incident, and accordingly should not have been allowed to lead evidence of the observations of the car in the vicinity of the road-works, which latter evidence was left to the jury as bearing only on whether the applicant was the driver of the car which had almost collided with Seaton's car earlier that day.

1. It is unnecessary for us to consider the question left open by the Court of Criminal Appeal in Buchanan and unnecessary and undesirable for us to attempt to lay down a set of propositions about the circumstances in which, on a charge of culpable driving, evidence may be received of the way in which the accused was

driving at a time or times before the particular incident in which the victim was killed.

1. It is enough to say that in the present case, where there was no suggestion of intoxication by drink or drugs, evidence that the applicant, three and a half hours before the collision, came round a bend partly on the wrong side of the road, forcing another motorist to take action which narrowly averted a collision, ought not to have been received.  If this piece of evidence was admissible, then I see no reason why evidence could not have been led to show that the applicant had been on the wrong side of the road at the bend in question, the bend of the 9.30 a.m. incident, and almost collided with another car, at, say, 4.30 p.m. on the day before the fatal accident.

1. Evidence of similarities between the bend in the highway where the 9.30 a.m. incident occurred and the bend at which the fatal accident occurred certainly does not meet the difficulty.  The evidence presently in question added nothing to the Crown case; it did not bear on whether the applicant was driving negligently at the bend at which the fatal accident occurred and ought not to have been received.

1. I would grant the retrial sought.

WINNEKE, P.: 

1. I agree.

CHARLES, J.A: 

1. I also agree.

WINNEKE, P.: 

1. The formal order of the court will be that the application for leave to appeal against conviction is granted.  The appeal is treated as having been instituted and heard instanter.  It is allowed.  The conviction and sentence below is quashed and in view thereof, the Court orders that there be a retrial upon the count of culpable driving.