Regina v Kaddour

[2002] NSWCCA 112

CITATION:	Regina v Kaddour [2002] NSWCCA 112
FILE NUMBER(S):	CCA 60565/00
HEARING DATE(S):	4 March 2002
JUDGMENT DATE:	5 April 2002
PARTIES :	Kalid Kaddour (Appellant) The Crown (Respondent)
JUDGMENT OF:	Stein JA at 1; Dowd J at 49; Buddin J at 50

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0496
LOWER COURT JUDICIAL OFFICER :	Mahoney DCJ

COUNSEL :	S J Odgers (Appellant) L M B Lamprati (The Crown)
SOLICITORS:	Galloways (Appellant) S E O'Connor (The Crown)
CATCHWORDS:	CRIMINAL LAW - driving in a manner dangerous and causing grievous bodily harm - appeal against conviction - fresh evidence - whether evidence was available at the time of the trial - appeal against sentence - sentence excessive. - N/D
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Gallagher v The Queen (1986) 160 CLR 392 Mickelberg v The Queen (1989) 167 CLR 259 R v AT [2000] NSWCCA 342 R v Hemsley (Unreported, Court of Criminal Appeal, 8 December 1995) Ratten v The Queen (1974) 131 CLR 510
DECISION:	1) Appeal against conviction dismissed 2) Leave to appeal against sentence granted and the appeal allowed 3) Set aside the sentence imposed by the sentencing judge and, in lieu thereof, the appellant is sentenced to 4 years imprisonment to date from 3 March 2000 and to expire on 2 March 2004. A non-parole period of 3 years is set from the commencement of the sentence on 3 March 2000 to expire on 2 March 2003.

60565/01

STEIN JA
DOWD J
BUDDIN J

Friday 5 April 2002
REGINA v Kalid KADDOUR

Judgment

1 STEIN JA: This is a conviction appeal by Kalid Kaddour. On 3 July 2000 the appellant was found guilty of driving in a manner dangerous and causing grievous bodily harm. On 30 August 2000 he was sentenced to 6 years imprisonment with a non-parole period of 4 ½ years. He also seeks leave to appeal against sentence.

2 On 14 September 1998 the appellant drove a Lamborghini motor vehicle south in Barrenjoey Road, Mona Vale when it crossed a concrete medium strip into a north bound lane and collided with a Volvo being driven by Mrs Dexter, causing her injury. The accident occurred just south of the intersection with Phillip Road and close to the intersection with Grandview Parade. When it crossed the medium strip the Lamborghini was travelling at a high speed, somewhere between 100 and 105 kph. The speed limit was 60 kph.

3 Although there was evidence that the appellant’s speed at the time of the accident was in excess of 105 kph, the jury were unable to agree on the alternative charge of causing grievous bodily harm by driving at a speed dangerous, to wit, more than105 kph.

4 There was evidence that prior to the accident, and for a distance of approximately 6 km, the appellant had been seen by numerous witnesses to be driving at very high speeds. A Lamborghini is a very powerful high performance car, perhaps more suited to racetracks than suburban roads.

5 The defence case at trial relied essentially on the possibility of a mechanical defect explaining the accident. One possible hypothesis raised was that at some point before the accident, the accelerator cable jammed.

6 Eight days after the accident a prosecution expert, Constable Thompson, examined the vehicle. Although the car had suffered significant fire damage, he found no mechanical problems other than those caused by the collision. He examined the accelerator throttle assembly and found that the pedal was jammed due to the collision and fire damage. He also said that the offside fuel bank throttle was free at rest and under its own spring tension.

7 Constable Thompson said in evidence that:

… the throttle movement was normal, the spring made the throttle come back to rest when it was operated so that there was no sign of jamming or anything untoward on that side of the engine. So it effectively operated normally.

8 In cross-examination he said that the pedal was ‘jammed sideways against [a] side kick panel’.

9 The defence called an expert witness, Mr Colin Wingrove, who said that the accelerator cable was jammed and this could have caused the appellant to lose control of the vehicle. Mr Wingrove had examined the vehicle wreck in June 2000, 21 months after Constable Thompson. Unlike Constable Thompson he did not examine the engine, as it was not with the wreck.

10 Mr Wingrove removed part of the accelerator cable from the car, unfortunately damaging it in the process. Although he surmised as to the possible ways the cable could have become stuck, he said that he did not know what had caused the jamming.

11 It seems that the jury did not accept that the accelerator cable was jammed prior to the accident so as to cause the appellant to lose control of the vehicle.

12 When Mr Wingrove gave evidence at the trial he had already read a statement of Constable Thompson. He was cross-examined as to some of the officer’s evidence given at the trial, which was consistent with the statement. It appears that he was not present when Constable Thompson gave evidence.

13 Because of what Mr Wingrove had observed on his inspection of the wreck, sans the engine, and the contents of Constable Thompson’s statement, he says that it did not occur to him at the time of the trial that he should examine the engine. Mr Wingrove says that he did not seek to examine the engine because it did not, at the time, appear to be relevant to his inquiries.

14 After the trial was over Mr Wingrove says that he became aware that the Crown had submitted to the jury that the observation of Constable Thompson that the offside throttle assembly was in the closed position meant that the cable was not jammed at the time of the accident. As a consequence of this awareness, Mr Wingrove examined the fuel injection assembly which he understood had been taken from the engine of the vehicle. He did this in July and September 2001. It must be noted that this was in excess of a year after the jury verdict and almost three years after the accident.

15 In an affidavit sworn 6 December 2001 and read to the Court of Criminal Appeal, Mr Wingrove said that he examined the accelerator linkages and saw certain damage, which he described. From his observations he concluded that Constable Thompson’s evidence at the trial was erroneous. In short, he says that the nature of the collision damage occasioned to the entire accelerator linkage mechanism was sufficient to prevent Constable Thompson, during his examination of the engine after the accident, from confirming that the accelerator had returned to the closed position and therefore could not have jammed prior to the accident.

16 Also read upon the appeal was an affidavit of Senior Constable Lee sworn 28 February 2002. In his affidavit he disagreed with Mr Wingrove’s conclusion mentioned immediately above. He says that it is clear that Constable Thompson examined the engine on 22 September 1998, including the associated linkages, cables etc, albeit they were in a burnt and damaged state caused by the vehicle catching alight after the collision. Mr Lee says that from Constable Thompson’s statement it was plain that he carried out functionality tests on the accelerator linkages and found them to be intact, operating correctly and returning to rest.

17 After noting that Constable Thompson had examined the vehicle with the engine and accessories in situ, Mr Lee noted that Mr Wingrove had examined an inlet manifold assembly as a separate component. He says that the lack of an inlet manifold pivot at the end of the throttle shaft would have little significance to its operation. He says that the photographs taken by Mr Wingrove do not show any significant disturbance to the pivot at position ‘C’ marked on the photographs.

18 Mr Lee also examined the photographs tendered at the trial, including exhibit P5. He observed that only a small portion of the inner accelerator cable was protruding from the outer cable and the return spring was at rest. This was clearly indicative of a closed throttle, and if jammed, the cable was jammed at the closed throttle position. Further, the post impact fire, which melted the accelerator outer sheath, would have a gluing effect on the cable, meaning that the only way to determine throttle and cable position, was to measure the protruding inner cable. The photographs did not show any inner cable protrusion at the pedal end of the cable consistent with an open throttle.

19 On the hearing of the appeal the court permitted cross-examination of Mr Wingrove and Constable Lee. During Mr Wingrove’s evidence he agreed that he could have examined the engine prior to the trial but he had not been asked to do so by the defence. He said that originally he had not been retained to look at the engine. With reference to Constable Thompson’s statement (para 9) that the accelerator pedal was jammed against the kick panel, he said that he checked whether the pedal was jammed. He agreed that he did not check Constable Thompson’s statement that he found the offside fuel bank throttle assembly to be free, at rest and under its own spring tension. He did not check this until well after the trial concluded. He said that he could have checked this before the trial ‘if it was an integral part of what I was asked to investigate’. In cross-examination before us, Mr Wingrove also agreed that the cable could have been damaged by the fire. Indeed, he accepted that he was unable to say how the cable had been damaged.

20 Mr Wingrove also said that the fuel injection which he recently inspected, being part of the cylinder head, had been removed from the engine. He did not know when or how it was removed, or indeed why it was removed. He did not know whether the damage which he had seen had been caused by its removal from the engine. In further evidence about this, he said that the fire damage could be relevant in that it may indicate that the damage may have pre-dated the accident, although he added ‘I have got no clear idea’.

21 On behalf of the appellant Mr Odgers SC submits that the particular evidence of Mr Wingrove is fresh evidence. It was not evidence which was actually available to the appellant at the trial or which could have been available to the appellant by the exercise of reasonable diligence in the preparation of his case.

22 On the other hand, Mr Lamprati, on behalf of the Director of Public Prosecutions, submits that the particular evidence would have been available at trial if due diligence had been exercised.

23 In Ratten v The Queen (1974) 131 CLR 510 at 517 Barwick CJ said:

… It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial.

24 On behalf of the appellant it is submitted that Mr Wingrove only appreciated the significance of Constable Thompson’s evidence after the trial was over. He then suggested to the defence that it would be advisable for him to look at the engine.

25 Mr Odgers further submits that if the evidence had been available at the trial there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant (Mickelberg v The Queen (1989) 167 CLR 259 at 301). See also Gallagher v The Queen (1986) 160 CLR 392.

26 In Mickelberg Toohey and Gaudron JJ said that in essence the fresh evidence must be such that, viewed with the evidence given at the trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused. The rationale for the rule is a miscarriage of justice and it is for the appellant to persuade the court that the absence of the evidence led to a miscarriage, see R v AT [2000] NSWCCA 342 at [50] and R v Hemsley (Unreported, Court of Criminal Appeal, 8 December 1995).

27 In my opinion the particular evidence relied on by the appellant from Mr Wingrove was evidence which would have been available at the trial if due diligence had been exercised.

28 Mr Wingrove was an expert. He was retained by the appellant to provide a report and give evidence at the trial. Amongst the material he had in his brief was the statement by Constable Thompson, in particular paragraph 9. Constable Thompson’s evidence at the trial was in accordance with the statement. Constable Thompson testified that:

I examined the accelerator throttle assembly and found the pedal to be jammed due to collision and fire damage. I found the offside fuel bank throttle assembly to be free at rest and under its own spring tension. … I found that the throttle movement was normal, the spring made the throttle come back to rest when it was operated so that there was no sign of jamming or anything untoward on that side of the engine. So it effectively operated normally.

29 It was plain that Constable Thompson had carried out an inspection of the engine as well as all of the other parts of the vehicle. The constable’s statement and evidence should have alerted Mr Wingrove to inspect the engine. He did not do so and his reason for not so doing is unpersuasive.

30 By the time that Mr Wingrove did inspect the engine, or rather a part of it, another year had passed after the trial was over. Moreover, it is quite possible that the condition of the item in question had changed in the period which elapsed between the accident in September 1998, when Constable Thompson examined the engine, and July 2001 when Mr Wingrove saw it. The part had been dismantled from the engine under circumstances unknown to Mr Wingrove and he could not know if it had been damaged in that process.

31 The exercise of due diligence, it seems to me, would have required that the expert examine both the wreck and the separated engine prior to the trial. Without such, he was not in a position to meet Constable Thompson’s opinion mentioned above. It is very difficult to accept his ‘excuse’ that it was not a ‘live issue’ at the trial. The explanation provided by Mr Wingrove remains unconvincing.

32 I would reject the fresh evidence since, with reasonable diligence, it could have been available. However, even if the fresh evidence was permitted, it is doubted that it could be concluded that with it there was a significant possibility that the jury would have acquitted the appellant.

33 I say this because the fresh evidence is of doubtful quality. That much is apparent from the cross-examination of Mr Wingrove and the evidence of Constable Lee on the appeal. There is doubt as to whether the injection assembly part examined by Mr Wingrove last year was, leaving aside fire damage, in the same condition as it was when the accident occurred and when it was examined by Constable Thompson shortly thereafter. After all, the court (and Mr Wingrove) are not aware of the circumstances in which it had been dismantled from the engine. Mr Wingrove was candid in his evidence when he said that he really could not say when the damage was caused to it. As the Crown Prosecutor observed, we are not talking about comparing oranges with oranges, but oranges with apples.

34 It may also be observed that the vehicle was seen travelling at a very high speed for a considerable distance prior to the accident. It is difficult to see how the jury might have concluded that the appellant lost control because of a jammed accelerator cable.

35 I do not think that it may be concluded that, if the fresh evidence in Mr Wingrove’s affidavit had been before the jury, there was a significant possibility that the jury would have acquitted the appellant.

36 The appeal against conviction should be dismissed.

Appeal against Sentence

37 The appellant submits that the sentence of 6 years with a non-parole period of 4 ½ years was excessive. At the time of the offence the maximum penalty was 7 years.

38 According to the sentencing statistics provided to the court by the Crown, this was the highest sentence out of 22 convictions for the offence. Similarly the non-parole period was the highest. So, this was not a sentence at the top of the range, it set the range.

39 The court has been provided with a large number of judgments of the court for offences under this provision and also for dangerous driving occasioning death (maximum penalty 10 years). Many of them contain significantly aggravating features such as very high blood alcohol readings and ingestion of drugs.

40 Even allowing for double jeopardy aspects on appeals, it is impossible to comprehend how this case, serious as it is, was the worst or one of the two worst cases of its kind.

41 Although speed was an aggravating factor here, there was no involvement of alcohol or drugs. It is true that the applicant had a bad record for traffic offences over many years, including repeated speeding offences. Further, he was unlicensed at the time of the offence.

42 Although excessive speed aggravated the offence (and excessive speed seems to have occurred over a considerable distance of roadway) when all of the objective circumstances are taken into account, the sentence must be seen as a manifestly excessive one. Not only was there no involvement of drugs or alcohol, but this was not a case of competitive driving or of ignoring warnings. It was driving at a dangerous speed in the circumstances and it was the excessive speed which lead to the applicant losing control and crossing the medium strip to collide with the Volvo.

43 In my view, leave to appeal the sentence should be granted and the appeal against sentence upheld. Accordingly, it is necessary to re-sentence the appellant.

44 Taking account of the objective gravity of the offence and the subjective circumstances of the appellant, a sentence of 4 years imprisonment is appropriate.

45 There is a question as from what date the sentence should commence. His Honour commenced the sentence on 3 July 2000. However, it appears to be common ground that there were two periods prior to 3 July 2000 when the appellant was in custody on other charges with respect to which he was subsequently acquitted. The periods total 4 months. That custody was not related to the dangerous driving charge for which he was on bail. In the circumstances it would not be unreasonable to backdate the sentence to 3 March 2000. I do not understand the Crown to really oppose the backdating.

46 The next question is whether the non-parole period should be 3 years or whether there are special circumstances. The only circumstance relied on is that the appellant has been classified as an extreme high security inmate since mid 2001. This has significant consequences for access visits, employment and isolation. His access to prison facilities is severely restricted and there is no doubt that the experience is a harsher one than the normal situation. Nonetheless, the court does not know when the appellant might have his classification re-assessed.

47 I am not satisfied that his present classification constitutes a special circumstance under s 44 of the Crimes (Sentencing Procedure) Act 1999 such as to justify a non-parole period of less then three-quarters of the term of the sentence. I would therefore fix a non-parole period of 3 years so that the appellant will be eligible for release to parole from or after 2 March 2003.

48 I propose the following orders:

1. Appeal against conviction dismissed.

2. Leave to appeal against sentence granted and the appeal allowed.

3. Set aside the sentence imposed by the sentencing judge and, in lieu thereof, the appellant is sentenced to 4 years imprisonment to date from 3 March 2000 and to expire on 2 March 2004. I set a non-parole period of 3 years to date from the commencement of the sentence on 3 March 2000 and to expire on 2 March 2003.

49 DOWD J: I have read the judgment of Stein JA in draft form. I agree with the proposed orders and with his Honour’s reasons.

50 BUDDIN J: I agree with Stein JA.

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