Richardson v The Queen
[2016] ACTCA 63
•22 November 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Richardson v The Queen |
Citation: | [2016] ACTCA 63 |
Hearing Date: | 9 August 2016 |
DecisionDate: | 22 November 2016 |
Before: | Burns, Elkaim and Ross JJ |
Decision: | The appeals are dismissed. |
Catchwords: | CRIMINAL LAW – Particular Offences – offences against the person – culpable driving of motor vehicle – causing death – causing grievous bodily harm. CRIMINAL LAW – Appeal from Supreme Court – trial by jury – appeal against conviction – conviction unreasonable and not supported by the evidence – whether appellant’s intoxication was the substantial and operating cause – ample evidence to support conviction – appeal dismissed. |
Legislation Cited: | Evidence Act 2011 (ACT) s 184 Supreme Court Act 1933 (ACT) s 37O |
Cases Cited: | Campbell v The Queen (1980) 2 A Crim R 157 Elwood v The Queen [2016] NSWCCA 18 W v The Queen [2014] NSWCCA 110 |
Parties: | Jamie Richardson (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr J Pappas (Appellant) Mr J White SC (Respondent) |
| Solicitors Ben Aulich & Associates (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 11 of 2016 |
Decision under appeal: | Court: ACT Supreme Court Before: Murrell CJ Date of Decision: 30 March 2016 Case Title: R v Richardson |
THE COURT:
On 30 March 2016, the appellant was convicted, following trial by jury, of two offences arising out of a driving incident on 1 February 2014. He was convicted of both counts on the indictment dated 15 March 2016:
(a)that on 1 February 2014 at Canberra in the Australian Capital Territory [the appellant] caused the death of Glenn Paul Dunster by the culpable driving of a motor vehicle, that is, while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle; and
(b)that on 1 February 2014 at Canberra in the Australian Capital Territory [the appellant] caused grievous bodily harm to Dannielle Michelle Benning by the culpable driving of a motor vehicle, that is, while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle.
The appellant appealed from the conviction in relation to both counts on the sole ground that the verdicts of the jury in each case were unreasonable or cannot be supported having regard to the evidence. The Notice of Appeal then refered to particulars under that appeal ground:
(a)in each case there was no evidence which would have allowed the jury to exclude a reasonable and innocent explanation of the circumstances of the collision resulting in death and grievous bodily harm beyond a reasonable doubt;
(b)the decisions of the jury in each case must, of necessity, have involved impermissible speculation; and
(c)the jury must have been, by virtue of their decisions, mistaken or misled.
These particulars were not further developed in the appellant’s written submissions or in the appellant’s oral submissions. Rather, as the respondent submitted, the appellant asserted that on the whole of the evidence it was “not open” to the jury to be satisfied that the appellant’s culpable driving caused the collision.
The appellant sought orders that the convictions be quashed and set aside, and a verdict of acquittal be entered with respect to both counts.
The relevant legal principles
The sole ground of appeal with regard to each conviction is the conviction is unreasonable and cannot be supported by the evidence: s 37O(2)(a)(i) of the Supreme Court Act 1933 (ACT).
The relevant legal principles regarding such an appeal are well established. In M v The Queen [1994] HCA 63; 181 CLR 487, they were set out in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ at 493:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations...
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury out to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(citations omitted)
Subsequently, in Libke v The Queen [2007] HCA 30; 230 CLR 559, Hayne J, with whom Gleeson CJ and Heydon J agreed, said at 596:
The final issue to consider is whether, as the appellant submitted, the convictions were unsafe or unsatisfactory. In the Court of Appeal, Chesterman J held that the appellant’s conviction for rape should be quashed. In his Honour’s view, the complainant’s evidence was “insufficient to prove the charge”. He concluded that the jury could not have been satisfied beyond reasonable doubt “that the complainant did not consent, or that the appellant could not have honestly and reasonably believed that she had consented”.
It is clear that the evidence that was adduced at trial did not all point to the appellant’s guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt.
(citations omitted, emphasis as per original)
See also W v The Queen [2014] NSWCCA 110 at [151] and TI v The Queen [2015] ACTCA 62 at [136] where these principles have been applied.
In RP v The Queen [2015] NSWCCA 215; 90 NSWLR 234 (RP v The Queen), Davies J with whom Johnson and Hamill JJ agreed, said at [48]:
For a verdict to be unreasonable it is not enough that review of the evidence demonstrates that it was possible for the tribunal of fact to reach a different conclusion: Lazaris v R [2014] NSWCCA 163 at [65]. As Hayne J said (Gleeson CJ and Heydon J agreeing) in Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113]:
“[113] ... But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.” (Footnote omitted)
Or as the joint judgment said in Filippou at [56]:
“[56] ... [T]he question of the Court of Criminal Appeal was not whether it was ‘satisfied that the judge’s account was not correct’ but whether her Honour’s findings as to the sequence of events were not reasonably open.”
The reference to Filippou in the above extract from RP v The Queen is a reference to the decision of the High Court in Filippou v The Queen [2015] HCA 29; 256 CLR 47.
Both parties drew our attention to the recent NSW Court of Criminal Appeal decision of Elwood v The Queen [2016] NSWCCA 18 (Elwood v The Queen), which reinstated the principle that in assessing the whole of the evidence, the appellate court must have regard to the jury’s advantage, where appropriate. The respondent relied on the passage of Meagher JA (with whom McCallum and Button JJ agreed) at [22]:
In answering that question the Court has to make its own independent assessment of the sufficiency and quality of the evidence: SKA v The Queen [2011] HCA 13; 243 CLR 400. In doing so, it is required to give full weight to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, and has had the advantage of having heard and seen the witnesses: M v The Queen at 493. Ordinarily a reasonable doubt entertained by this Court would be one which the jury also ought to have experienced, except where the jury’s advantage in seeing and hearing the evidence could have resolved that doubt. The jury’s advantage is diminished but not removed where that evidence is or includes, as it does here, video recordings of police interviews given by the accused. However even where that is so, there remain the advantages identified by McCallum J in Hawi v R [2014] NSWCC 83 at [480], which include, when evaluating all of the evidence, that of having seen other witnesses give any conflicting evidence.
Because of the nature of this appeal it is necessary to refer to the evidence in some detail.
The trial proceedings
Briefly put, the Crown case at trial was that the appellant had driven from the Lighthouse Waterside Pub (the Lighthouse) in Belconnen after a night of drinking with three of his friends, who were passengers: Glenn Dunster, Dannielle Benning and Jackson Gardner. A few minutes into the drive, on William Slim Drive, the car yawed off the road as the result of a sharp steering input to the left and collided with a tree. Mr Dunster, who was in the back seat, died at the scene from the injuries he sustained in the accident. The appellant and the two surviving passengers were injured, with Ms Benning’s injuries being particularly serious. The appellant was visibly intoxicated at the collision scene and, as admitted by the appellant, he returned a blood alcohol reading of 0.19 grams of alcohol per 100 millilitres of blood some 2 hours later. The Crown case was that given the appellant’s level of intoxication, he did not have proper control of the vehicle, and his driving was a substantial cause of the accident.
The appellant made a number of admissions pursuant to s 184 of the Evidence Act 2011 (ACT). A written document containing those admissions was tendered as an exhibit in the trial, and in the following terms:
i.On 1 February 2014 at about 1.30 am he drove a Mazda 3 sedan registered number [redacted for legal reasons] from a carpark near the Lighthouse Waterfront pub in Emu Bank Belconnen to William Slim Drive McKellar near the intersection of William Slim Drive and Dumas Street McKellar.
ii.He was seated in the driver’s seat of that vehicle when, near the intersection, the vehicle suddenly left the roadway and collided with a tree on the left or western side of William Slim Drive.
iii.At that time the owner of the vehicle, Dannielle Benning, was seated in the front passenger seat; Glenn Dunster was seated behind her in the rear passenger seat and Jackson Gardner was seated behind the defendant in the rear driver’s side seat.
iv.Mr Glenn Dunster died as a result of injuries sustained by him when that vehicle collided with that tree.
v.Dannielle Benning suffered injuries which the defendant accepts were really serious injuries as a result of that vehicle colliding with that tree.
vi.The first persons on the scene of the accident were Ms Kelly Monahan and Mr Mitchell Bannink and the defendant told them that he had been in the driver’s seat of the Mazda and gave them an account of how that motor vehicle came to leave the roadway.
vii.Members of the Australian Federal Police attended the scene of the accident with the first member to arrive being Sergeant Michael Horan who arrived at about 1.45 am.
viii.At about 3.20 am that morning a sample of the defendant’s blood was taken by staff at the Canberra Hospital and that blood sample was subsequently analysed to contain 0.190 grams of ethyl alcohol per 100 millilitres of blood.
ix.The defendant’s blood was also analysed for the presence of Methamphetamine, MDMA (also known as Ecstasy) and THC (or the active constituent of Cannabis) and no such drugs were detected in his blood.
The appellant contended that Ms Benning, who was in the front passenger seat, grabbed the steering wheel from the appellant, which caused the car to yaw to the left and subsequently collide with a tree.
The parties agreed that much of the evidence was non-contentious, however, it is important to recount it in some detail for the purpose of the issue raised on appeal.
Evidence of Kevin Rogers
Kevin Rogers gave evidence that at approximately 1.30 am on 1 February 2014, he heard a car alarm going off. He lived at McKellar at that time, and he walked across the road and down an alleyway to William Slim Drive, following the sound of the alarm. As he approached the strip of land before William Slim Drive he noticed a vehicle on the left side that had hit a tree. At the scene, he recalled the streetlight was on and observed there were other people present at the time he attended, including a person he later came to know as a pilot and his girlfriend. He spoke to the person he believed was the driver at the scene who asked whether there was anything he could do. In response, Mr Rogers said “No mate, just sit down, and we’ll take care of things”. The evidence established that this was the appellant. Mr Rogers observed the appellant to be nervous, he continued to pace around and continued to ask if there was anything he could do.
Mr Rogers was at the scene of the accident when the police arrived and he heard a police officer ask the appellant words to the effect of “Are you the driver?” The appellant said in response “No I’m not, he’s done a runner”.
He recalled that he observed that the appellant appeared to be injured, that he had a little bit of blood on his cheek or around his nose, blood in the area of the shin and running down his right leg. He agreed that the appellant was the only person in and about the scene of the accident who had obvious injuries that was not otherwise lying down or being attended to.
Evidence of Mitchell Bannink
Mitchell Bannink testified that he is a pilot and was travelling from Belconnen to Ngunnawal in the early hours of 1 February 2014. He was the passenger in a car being driven by his then girlfriend, Kelly Monahan, when he noticed that there was a “car in a tree”. He recalled there were no streetlights and that the headlights of the crashed vehicle were shining onto a fence in the distance, which drew his attention to the scene. He and Ms Monahan stopped at the scene and approached the car. As he approached the car, Mr Bannink heard a gentlemen on the phone speaking to the police, which he later assumed was the driver, the appellant. He recognised the appellant, as he was the brother of one of Ms Monahan’s best friends. Mr Bannink then proceeded to take over the triple zero call. He observed the appellant to be injured in some form, and recalled that he was yelling on the phone a bit, as if he was implying a sense of urgency. He agreed that it was the appellant who said on the phone to the operator “please help my friend out” and that those words were directed towards him and Ms Monahan. A recording of this triple zero call was tendered at trial and we will refer to it in greater detail below.
Mr Bannink recalled speaking with the appellant, particularly he said “there was statements [sic] made along the lines of the steering wheel having ripped out of his hands”. During examination-in-chief the Crown prosecutor asked Mr Bannink to give his best recollection of that statement, however, he was unable to recall the exact words but said that he could guarantee the words “steering wheel” and “ripped out of my hands” were said by the appellant. He thought Ms Monahan would have been nearby when those words were spoken. Mr Bannink was unable to recall whether the appellant said, in response to Ms Monahan’s question about what happened, “she yanked the wheel out of my hands”. He recalled that the girl who was injured and lying on the ground, Ms Benning, said something to the effect “Look, take me home. I just want to go home. Can you please give me a lift home?” to another gentlemen. He agreed that this was “out of sync” with the circumstances.
In cross-examination he testified that he had undergone some training about how to act in an emergency situation, which was part of company training when joining an airline. This training was yearly, and Mr Bannink had been a pilot since the year 2005. He also agreed that the appellant looked like someone who had been involved in a car accident and had blood on his hands. He gave evidence that Ms Monahan was driving along the road at approximately 65 kilometres per hour, which he considered to be a safe speed given it was “pitch black”. This was despite this road being a designated 80 kilometres per hour zone.
Evidence of Nathan Macklin
Nathan Macklin was an Acting Sergeant in the Australian Federal Police (AFP) and attended the scene on 1 February 2014 shortly after receiving a radio transmission about the accident at 1.42 am, with his partner Constable Watts. He described the road conditions as dry and in good condition. He said there was no street lighting.
He spoke with the appellant and asked if he knew who the driver of the vehicle was. The appellant replied something to the effect that he “didn’t know his name but he’d run off”, and then pointed to the direction of Dumas Street. He recalled the appellant appeared to have injuries, he observed a small amount of blood on his hands, blood running down his legs and some sort of injury to his ankle. As a result of those injuries, he believed the appellant had been in the vehicle when it crashed.
Acting Sergeant Macklin then rendered some assistance to Mr Dunster and the ACT Fire Brigade. He observed CPR being performed on Mr Dunster, and then noticed that another police officer was having trouble attempting to keep the appellant away from the scene. Acting Sergeant Macklin then had a conversation with the appellant and again asked who the driver of the vehicle was. He observed the appellant had become more aggressive and hostile in general and recalled he said words to the effect “I was the fucking driver. Stop looking”. He considered this conversation would have been less than five minutes after the first time he inquired of the appellant who the driver of the vehicle was. He immediately cautioned the appellant and after the appellant provided his identification material, he mentioned that he wanted to get some legal advice before answering any further questions. Acting Sergeant Macklin then made some observations about the appellant. He observed that he could smell alcohol coming off the appellant’s body, his speech was somewhat slurred and that he was unsteady on his feet. He did not recall whether the appellant appeared to be limping.
Acting Sergeant Macklin was less than a metre from the appellant when he asked the appellant for his name and details, and formed the opinion that the appellant was at the very least, moderately affected by alcohol, given the smell of alcohol. Mr Macklin then administered a roadside breath test. This showed the appellant was over the legal limit of 0.05. The appellant was then taken into custody to be conveyed to a police station for a formal breath analysis. However, this did not occur as members of the ACT Ambulance Service assessed him and deemed that he was not fit to return to the police station and should first go to the hospital. At this time, ACT Ambulance members had placed a blanket over the body of Mr Dunster. Acting Sergeant Macklin observed that the appellant, at that stage, punched himself in the head and yelled something that he could not recall. He described the appellant’s demeanour at that stage to be “very, very hostile” towards everyone, angry and visibly upset. He recalled the appellant said “My life is over. I’m fucked. They are going to kill me”. He then said to Acting Sergeant Macklin “Just do it. Fucking shoot me. I’ve killed him”. Acting Sergeant Macklin accompanied the appellant to hospital.
During the ambulance ride to the hospital, the appellant said on a number of occasions that “his life was now fucked and that he had killed his best mate”. The appellant arrived at the hospital at about 3.00 am and was taken to the emergency department for medical treatment. Acting Sergeant Macklin requested that a sample of the appellant’s blood be taken to determine his blood alcohol level.
Evidence of Stephen Dzido
Senior Constable Stephen Dzido gave evidence at the trial that he attended the scene with Constable Ian Macken at about 1.45 am. When they arrived they observed the scene of the accident. At that time ACT Fire Brigade were extracting Mr Dunster from the vehicle. Senior Constable Dzido remained at the scene until about 7.30 am that morning.
Evidence of Louise Denley
Sergeant Louise Denley gave evidence that she attended the scene at approximately 2.10 am and spoke with people that she understood were involved in the accident, including the appellant. At that stage she recalled that the appellant was sitting down with his back up against a tree. She recalled that when she first approached the area the appellant was crying into his hands and was fairly emotional. She noticed that the appellant had some blood on his hands and left ankle, and that his left ankle was fairly swollen. She recalled making conversation about his ankle and that the appellant said “he didn’t care about that” and that he had “crashed his fucking car”. She recalled that the appellant’s speech was slurred. She did not make any contemporaneous notes about this conversation.
Evidence of Gregory Johns
Senior Constable Gregory Johns gave evidence that he arrived at the scene at about 2.50 am on 1 February 2014. At that time he was attached to the Collision Investigation and Reconstruction Team and attended the scene to try and reconstruct what may have happened. He gave evidence that William Slim Drive at the point of the accident is an 80 kilometres per hour road and that there are two lanes going south and one lane going north. He testified that at the point where the collision occurred is the start of a left-hand turn lane that goes into Dumas Street. He considered that the car had been travelling north and veered off the road into the tree. He recalled the road was dry and that it was a warm night. He could not recall if the streetlights were on or off. Senior Constable Johns took a number of photographs of the collision, which were tendered at the trial. He agreed that the measurement from the beginning of the tyre marks to the point of collision was approximately 35 metres.
Evidence of Dannielle Benning
Dannielle Benning was in the front passenger side of the vehicle on 1 February 2014 and is the subject of count 2 on the indictment. It was her car that was involved in the collision.
She gave evidence that on 31 January 2014 she finished work between 5.00 pm and 5.30 pm. She then went to Glenn Dunster’s house after getting changed at her own house. She estimated that she stayed there for approximately one hour to one and a half hours, and they left at about 7.00 pm. The appellant was also at Mr Dunster’s house, as well as another friend, Christopher Payne. She testified that she did not consume any alcohol or food while at Mr Dunster’s house. She agreed that this was a group of friends she would normally socialise with and that they decided to go to the Lighthouse. They decided to drive her car and that Mr Payne would drive them all home as he was not drinking that night. She testified that there were no arrangements about where she would stay that night, however, they would usually go back to Mr Dunster’s house and stay there. She estimated it took about 15 to 20 minutes to drive from Mr Dunster’s house to the Lighthouse.
When they arrived at the Lighthouse, she testified that everyone started drinking and that they were drinking for “a while”. They then ordered dinner. After they had eaten dinner, a few other friends arrived, including Daniel Murphy, Guy Barbour and Jackson Gardner. She recalled that at some point during the night Mr Payne became ill and Mr Dunster drove him home. Mr Dunster was gone for approximately an hour.
She recalled that by the time Mr Dunster had come back she had consumed approximately six glasses of wine. She had a conversation with Mr Dunster in which it was agreed she would leave her car at the Lighthouse. She recalled that Mr Barbour then went to get some shots from the bar, they had some shots and a few more drinks. She then recalled that she and Mr Gardner went outside for a cigarette for approximately 15 minutes. When she returned she sat at the table where they were previously seated. Her next memory was waking up at hospital. She was told that she had sustained a number of injuries, including a broken ankle, her right lung had collapsed, she had hit her head and had cuts and abrasions to her face. Her injuries were predominately to her left-hand side. She had no memory of the moments leading up to the impact, and could not say whether she had turned to the left or right at the time of impact.
Ms Benning estimated that on that night she would have consumed approximately eight glasses of wine and two or three shots. She agreed she could have been drinking “drink for drink” with her group of friends. During cross-examination she agreed that she could not specifically recall how much she had to drink. She considered that what she told Police about how much alcohol she had consumed was based upon her normal consumption. She agreed during cross-examination that she intended to drink until she was intoxicated and that she was not expecting to drive home.
CCTV footage from the car park of the Lighthouse was tendered at the trial and shown to Ms Benning. She did not have any memory of the events shown on that footage. She identified the appellant walking out of the Lighthouse holding her handbag. She recalled her car keys were in her handbag. The footage showed her effectively forcing Mr Dunster backwards onto a bonnet of a taxi that was waiting in the car park, which Ms Benning described as “mucking around”. Mr Barbour then came over to try and drag her away. All three of them later fell back onto the bonnet of the cab. She agreed that there was a taxi driver in that vehicle at the time. The CCTV footage shows her, Mr Dunster and Mr Gardner getting into her vehicle. She agreed in cross-examination that she was surprised at what the video showed and that it was completely out of her “normal behaviour”. However, she agreed in re-examination that she had never seen any video footage of herself when she has been intoxicated. She agreed that after being shown this video she came to the conclusion that she was very affected by alcohol that night. She agreed that the only way she could explain her behaviour was due to the extent of her intoxication. She agreed that even if she went out and had a big night she would normally recall the events of the night before, although she agreed that there were occasions where she would have gone out for a big night and drunk so much that she could not remember the events of the previous night the next day.
She agreed that the CCTV footage showed Mr Barbour helping her walk in the car park, as she was unsteady on her feet. The footage also showed her standing in the path of an oncoming vehicle, which she agreed she would not usually do. The footage showed Mr Dunster leading her out of the path of the car. She agreed that the footage then showed Mr Dunster physically pick her up and put her into her vehicle, which was being driven by the appellant.
Ms Benning stated that she had no memory of being in the car, becoming agitated and wanting to drive. She had no memory of saying to the appellant “Pull over, I want to drive”. She disagreed that there had been another occasion where she had been out with this group and had been too intoxicated to drive, and they had to encourage her not to drive. She considered that she had not previously been as intoxicated as she was on this occasion in front of that group of people.
She had no memory of being on William Slim Drive on the way home, wanting to drive or Mr Gardner saying to “butt out” and asking the appellant to continue driving. She had no memory of grabbing the steering wheel just prior to the car accident or being turned to the right when the vehicle hit the tree. She could not recall having hold of the steering wheel when the tree hit the car. She also could not recall whether she sustained left sided injuries because she had leaned over and pulled down on the steering wheel.
Evidence of Jackson Gardner
Jackson Gardner was also involved as a passenger in the car accident on 1 February 2014. He suffered multiple fractures to his ribs, scapula and had ACL damage to his knee joint. He recalled returning home at approximately 7.30 pm on 31 January 2014 and shortly after receiving a call from Mr Dunster he walked to his house, as he lived down the street from him. He recalled that they discussed going to the Lighthouse, but he could not remember going there. He could not recall anything about the accident; he could only recall the horn on the car being stuck.
Mr Gardner saw the appellant at the hospital while he, Mr Gardner, was being treated for his injuries. He spoke with the appellant after the accident while he was in his hospital bed. He considered that this conversation would have taken place two to three hours after he had woken up. He recalled that the appellant was in a wheelchair and had wheeled himself to his bed, and that the appellant was in tears. He recalled the appellant said “Sorry for causing this accident. I’m sorry [for] what I’ve done to you”. He considered that the appellant was apologising for the car accident, as he had made him aware that he was the driver of the car. He testified that the first time he told anyone about this conversation was to Constable Barratt in the Belconnen Police Station. This was on 22 February 2014 and a statement was produced on that same date, which Mr Gardner signed. Mr Gardner testified that when he signed the statement he only “skipped” through the statement. He agreed that this conversation between himself and the appellant was not in the statement. Rather the statement that Mr Gardner signed stated “after I got out of the hospital I saw [the appellant]. I showed him my injuries and asked him how I may have got them”. He agreed in his evidence that in the statement it says that the appellant then proceeded to show him an injury inside his forearm and say that he did not know how he got his injury either, and that he made observations that the injury appeared similar to his own.
He agreed in cross-examination that he did not tell any representative of the Director of Public Prosecutions about this conversation between him and the appellant. However, he was adamant that the conversation which he testified to with the appellant occurred. He had no memory of Ms Benning insisting on driving on the night of 31 January 2014 or of telling her to “butt out” and let the appellant drive.
Evidence of Kelly Monahan
Kelly Monahan gave evidence that she and her then partner, Mitchell Bannink were driving along William Slim Drive and noticed a car off the side of the road, however, could not tell whether it was a crash so they turned around. She recalled there were minimum streetlights on the road and thought that she was driving 80 kilometres per hour. She recognised the appellant at the scene, as he was her housemate at that time. She recalled asking what had happened and the appellant said “Help my friend”, and was motioning to someone in the backseat. She could not recall the appellant saying to her, in response to that question, something to the effect of “the steering wheel was ripped out of my hands”.
Evidence of Peter Dunster
Peter Dunster, the father of Glenn Dunster gave evidence at trial. After the accident he became aware that the appellant was driving at the time of the accident and that Ms Benning and Mr Gardner were also in the vehicle at the time. He recalled speaking to the appellant on the day of his son’s funeral. He recalled he was at home with his family before the funeral and that the appellant spoke with him and his wife. He recalled that he was in the front lounge room at that time. He thought that his son, Christopher was in the room, however, he did not think his other son, Thomas was present at the time.
He recalled that the appellant was remorseful and said that he had been advised not to say anything or tell them anything. He enquired whether this was “by legal” and the appellant acknowledged this with a head nod. He gave evidence that the appellant said “I have to tell you what happened” and that he felt that they deserved that. He said “you can do with it what you will”. The appellant then entered into a description of the drive and the accident. He recalled that the appellant said that they left the parking lot and started the journey back to Glenn Dunster’s place. He said that somewhere near McDonald’s he clipped or hit the gutter, and that others in the car had then asked him to stop, but he continued to drive and did not stop. He testified that the journey then went onto William Slim Drive and on that particular part of the journey, where the accident occurred, Ms Benning had pulled the steering wheel and he had lost control of the car as a result. He could not recall anything else the appellant said. He agreed in cross-examination that he could not recall whether the appellant said that he clipped the gutter or just missed the gutter.
In cross-examination he agreed that during this conversation everyone was crying. He considered the conversation went on for about five or ten minutes. He agreed that he and his wife discussed the conversation that they had with the appellant at some point afterwards. He gave evidence that his wife never told him what she could recall the appellant saying during that conversation. He considered that his recollection and that of his wife accorded in substance and was “basically the same”.
He agreed that he did not provide his statement for approximately four months after these events and made no contemporaneous notes.
Evidence of Beverley Dunster
Beverley Dunster, the wife of Peter Dunster, and the mother of Glenn Dunster gave evidence at the trial. Ms Dunster recalled speaking with the appellant in her lounge room on a day prior to her son’s funeral and asking the appellant what had happened. She recalled the appellant said in response “I can’t talk about it because I have not spoken to my solicitor yet”. She recalled having another conversation with the appellant on the day of her son’s funeral. She recalled it was at her house in the lounge room area, and that the conversation was at midday, before the funeral. She gave evidence that her husband, Peter and her two sons, Christopher and Thomas were present at the time of the conversation.
She recalled that when the appellant came into the lounge room he said “I’ve come here. I wanted to tell you what happened. No-one knows I am here. My law team don’t know”. She gave evidence that he said that they were all at the Lighthouse and he was driving and he said that he “nearly hit the gutter and everyone asked me to stop and I didn’t stop”. When asked where it was that he, the appellant, nearly hit the gutter he agreed it was near “the bowling alley”. She disagreed in cross-examination that this was not what was said.
The appellant then told her that after he nearly hit the gutter he continued driving along the road and that he must have drifted or gone to the wrong side of the road, as Ms Benning grabbed the steering wheel. She said the appellant could then just remember smoke. The appellant then left her house. She gave evidence that she and her husband discussed whether they believed Ms Benning had pulled the steering wheel. She disagreed that everyone was crying during the conversation. She also disagreed that the appellant told her that Ms Benning had asked him to stop driving and that she, Ms Benning, then “grabbed the steering wheel”. She could not recall if there was any mention of Ms Benning being drunk or wanting to drive.
She agreed when she gave her statement to police about this conversation that it was approximately six months after it had occurred and she did not make any contemporaneous notes.
Evidence of Roger Watts
Senior Constable Roger Watts gave evidence that he was on duty with Constable Macklin and attended the scene of the collision on 1 February 2014. He recalled speaking to Ms Benning while she was lying on the ground near the vehicle. He observed Ms Benning to be lying in the foetal position on the ground, he considered her speech to be slow, confused and at times incoherent. She said that she was in pain and that her left ankle was hurting. He could not recall Ms Benning saying “I want to go home. If someone can give me a lift home”. He recalled that Ms Benning smelt strongly of intoxicating liquor, however, he neglected to put this in his statement at the time.
He gave evidence that he approached the appellant, as he understood him to be the driver at the time. He observed that the appellant had a rather serious cut to his left chin area and blood on both of his hands. He recalled that he smelt highly of intoxicating liquor and was extremely erratic, and at times slow. He testified that by “slow” he meant that his speech would slow down when he was not yelling and screaming. He considered the appellant was very emotional. He gave evidence that he took into account that the appellant may have been in shock or traumatised by the incident, however, that once he observed the alcohol screening test it confirmed in his mind that the appellant was intoxicated. He could not recall whether the appellant was walking with a limp.
Evidence of Lysa Barnsley
Constable Lysa Barnsley gave evidence that she attended the scene of collision at about 1.48 am with her partner Constable Sutherland. She recalled it was quite a clear night on 1 February 2014.
She observed the appellant pacing back and forth near the rear of the car. She also observed that there was a laceration to his left leg and blood on his hands. She recalled that when she approached the appellant she smelt “a lot of alcohol” on his breath. She recalled that the appellant was very agitated, quite distressed, crying and his eyes were bloodshot. When they walked away from the vehicle he was stumbling and “sort of swaying on his feet”. She recalled that the appellant said to Sergeant Macklin that he had been driving and drinking.
Evidence of Stephen Barratt
Senior Constable Stephen Barratt gave evidence that he attended the scene at about 2.45 am with Senior Constable Johns on 1 Feburary 2014. He was attached to the Community Safety Team and had completed both a basic and an advanced course in collision investigation at the time of the collision. He was the informant in the matter and mapped the scene with surveying equipment. He gave detailed evidence of that process, which is unnecessary to recount here.
He gave evidence that the strip of lights around the collision location were not functioning. Once dawn broke he and the other investigators were able to have a good look at the roadway and they walked back from the point of the collision about 200 metres. They observed “no defects” by which we understand that he observed no defects in the road surface. He also examined the vehicle and documented what he saw. He observed that the car was a five-speed manual and was stuck in fifth gear and that the handbrake was in the off position. He recalled a portable generator driven floodlight was erected at about 3.15 am. At this point a video technician from the AFP took some video footage of the car and the trajectory that police had marked showing tyre marks. This footage was played and tendered at the trial.
He gave evidence that the tyre marks on the roadway led from the road to the western side of the kerb where the car had gone across the grass, marking the path of travel of the vehicle. He agreed that the vehicle narrowly missed a power pole and the marks formed an arc in an anticlockwise direction. He considered that the significance of those marks is that they were the indicator of where the right rear wheel started travelling outside the right front, which is the commencement of the yaw. He gave evidence that a yaw is when the rear wheels lose traction and start tracking outside the front wheels. He considered that one of the photographs in the photobook that was tendered at trial showed striations of the tyre perpendicular to the path of travel, which indicated that they were rotating and sliding, not locked. He inspected the tyres of the vehicle and considered that they were of normal size and appropriate for the vehicle. He disagreed that by the time the vehicle hit the tree the curvature of the anticlockwise arc had reduced.
Constable Barratt gave evidence that a driver turning from the intersection of William Slim Drive and Ginninderra Drive up to the point of the collision would have travelled 750 metres. He agreed that on 1 March 2014 he received the results of the blood analysis taken on the appellant, which showed a blood alcohol reading of 0.190. A blood sample was also taken from Mr Gardner, which was later analysed and showed a reading of 0.263. No blood sample was taken from Ms Benning. Mr Dunster had a blood alcohol reading of 0.139.
He also gave evidence that during the course of the investigation he had driven the route the appellant took from the Lighthouse to William Slim Drive maintaining the speed limit on those roads. The distance was about 3.2 kilometres and it varied between 3 to 3 and a half minutes.
He also gave evidence that in August 2014, he and Sergeant Dauth tested a similar car. He testified that it was the same car, although five months older and the same exact tyres were used. The car was tested both with its ABS on and off. The vehicle involved in the collision had its ABS on, so that the wheels kept on turning during breaking. Turning the ABS off enabled them to get a friction coefficient, which then allowed them to perform a mathematical calculation. From that they could then derive a probable speed of the vehicle in the middle of the yaw. He gave evidence that Sergeant Dauth performed that calculation.
Constable Barratt also testified that the vehicle, immediately prior to the commencement of the observed tyre marks on the road, would have been travelling straight and roughly within the centre of the northbound land. He gave evidence that within a second prior to the commencement of the depositing of those tyre marks there would have been a left-hand steering input. He gave evidence that from the start of the yaw tyre marks to the tree (at the front of the car) would be a distance of 35 metres, which means that the car travelled approximately 30 metres. He gave evidence that if the car was travelling at 60 kilometres per hour it would travel 16.66 metres within a second.
In cross-examination it was suggested to Constable Barratt that the angle the vehicle was travelling in had decreased by the time it had hit the tree, so that the tyre marks came back together. Constable Barratt disagreed and said “No, the angle if anything increases”. He also gave evidence that the steering input to the left would have been at least 90 degrees, in order to achieve the yaw seen in this case. He agreed that it would have required a rapid and significant left steering wheel input.
He was also shown the statement of Mr Gardner and agreed that he did not exercise any editorial content over the statement and that if Mr Gardner told him anything relevant to the investigation it would have been included in the statement. He gave evidence that neither of Mr and Mrs Dunster’s sons were willing to give evidence.
Evidence of Catherine Sansum
Dr Catherine Sansum has been a medical practitioner since 1985 and worked with Clinical Forensic Medical Service since 2001. Dr Sansum did not see Ms Benning, however, was provided with clinical hospital notes of Ms Benning to review. At the scene she was assessed as having a Glasgow Coma Scale (GCS) of 14 out of 15, which indicated that she had a slightly reduced level of consciousness. She was taken to hospital at 2.52 am by an ambulance and during the ride her GCS level decreased to 7, which indicated that she was becoming increasingly comatose and increasingly medically unstable and unwell. During cross-examination, Dr Sansum agreed that the administration of the drug Ketamine can reduce the GCS, which she was given either at the scene or en route to the hospital. When a person is admitted to hospital they are triaged. She gave evidence that Canberra Hospital uses the National Triage Score with incoming patients triaged from a level of one to six, with one being the most urgent. Ms Benning was given a score of one on arrival at the hospital. Dr Sansum then proceeded to go into further detail about Ms Benning’s injuries, which we will not recount here, given the appellant’s admissions of fact.
Evidence of Richard Dauth
Sergeant Richard Dauth gave evidence that he is a team leader of the Collision Investigation and Reconstruction Team in ACT Policing. He is a qualified crash reconstructionist and a qualified mechanic. He attended the scene of the collision at 2.47 am.
He gave evidence that the weather was fine and the road surface was dry. He testified that the tyre marks that he observed on the grass verge did not exhibit any indication of braking, steering or avoidance activity. However, he stressed that the car was fitted with ABS brakes and it may be that no breaking activity would be visible, as ABS will sometimes not leave any particular marks in the same way that a car without ABS would. He also gave evidence that any braking on the grass verge may have been ineffective given the way ABS brakes operate. He estimated that the speed of the vehicle just prior to yaw marks was 62.35 kilometres per hour. He agreed that 1.5 seconds is a fair median estimate of an alert and sober driver’s perception and reaction time. He also gave evidence that from the beginning of the yaw marks to collision of the tree a total of about 2.25 seconds would have elapsed.
Sergeant Dauth agreed that the speed of the car when it impacted or collided with the tree would be “right in the middle” of the range of 50 to 60 kilometres per hour. He also testified that there was no indication of any straightening of the wheel, which would have been visible from the tyre marks if it had occurred. He said that the tyre marks remained at the same angle, and slightly tightened up a bit, which meant the car was turning harder to the left as it drove across the grass area. Sergeant Dauth agreed that he was unable to locate any mechanical defect that might have contributed to the collision.
Evidence of Vanita Parekh
Dr Vanita Parekh is a medical practitioner and director of the Forensic Medicine Service. She was asked by Constable Barratt for her expert opinion in relation to the appellant and the affect that the influence of alcohol would have had on him while driving. She gave evidence that when someone has been consuming alcohol and subsequently stops, they reach a “peak blood level”, which can occur anywhere between 30 minutes to 120 minutes after consumption. She testified that the average rate at which the body is able to eliminate alcohol in the blood stream is 0.015 grams of alcohol over one hour.
She gave evidence of the affects of alcohol on drivers at different blood alcohol levels:
(a)at 0.02 grams of alcohol (per 100 millilitres of blood): a person’s vision and motor coordination begins to be affected;
(b)at 0.03 grams of alcohol (per 100 millilitres of blood): steering wheel errors and collision frequencies increase;
(c)at 0.05 grams of alcohol (per 100 millilitres of blood): drivers are slower at correcting positional errors (e.g. drivers are slower to move their car back to the centre of their lane);
(d)at 0.07 grams of alcohol (per 100 millilitres of blood): there are significant deficits in reaction times;
(e)at 0.08 grams of alcohol (per 100 millilitres of blood): a person’s ability to process information is impaired; and
(f)at 0.101-0.125 grams of alcohol (per 100 millilitres of blood): a person’s vision becomes further impaired.
Dr Parekh also referred to the Grand Rapids Study, the largest epidemiological study undertaken of its kind, which was a study that looked at crash risk in relation to blood alcohol concentration. A summary of the results of that study was tendered at the trial. She gave evidence that a person’s risk of crash would be 10.44 times more likely with a blood alcohol concentration level of 0.15 grams of alcohol per 100 millilitres of blood and is 21 times more likely with a blood alcohol concentration level of 0.2 grams of alcohol per 100 millilitres of blood.
She also gave evidence that there are studies that show if a person has not slept for 17 hours, they perform at the same level as a person with a blood alcohol level of 0.05, which is a cumulative risk on top of any level of alcohol a person has consumed.
Dr Parekh gave evidence that she had been informed that the appellant’s blood alcohol reading at 3.20 am was 0.19 grams of alcohol per 100 millilitres of blood. From this Dr Parekh was able to estimate the range in which the appellant’s blood alcohol level would have been at the time of the collision using metabolic rates. She estimated that the appellant’s blood alcohol level would have been in the range of 0.207-0.225 at 1.35 am (the approximate time of the collision). She gave evidence that an average person with a blood alcohol reading in that range would not be capable of being in proper control of a vehicle, as that level of alcohol would affect vigilance, information processing, concentration, motor coordination and vision.
Dr Parekh agreed during cross-examination that people who are habituated to alcohol may not be as likely to be involved in a car accident as another person with the same alcohol concentration who was not a regular drinker. She agreed that a person would be able to observe two people with the same blood alcohol concentration that might be impaired in quite different ways, given that everyone is different. She agreed that someone who might have done a lot of driving would find it easier to manage or control a vehicle under the influence of alcohol.
During cross-examination it was put to Dr Parekh that she could not categorically say that everyone at the region of 0.207-0.225 would be incapable of exercising proper control of a motor vehicle. She disagreed with this proposition and said “I would say above 0.15 there is no evidence at all to suggest that you’re capable of driving a motor vehicle in a safe manner”.
The appellant’s evidence
The appellant gave evidence at trial. He recalled arriving at the Lighthouse at about 6.30 pm. He recalled that Mr Dunster, Ms Benning, Mr Murphy and Mr Payne all arrived at the Lighthouse. He recalled that they had decided to go to the Lighthouse at Mr Dunster’s house and that Ms Benning drove everyone there. He agreed that Mr Payne was meant to drive everyone home and that this was decided before they left Mr Dunster’s house. He recalled that the first thing he did when they got to the Lighthouse was have a beer. He gave evidence that he was drinking Victoria Bitter, a full strength beer, and recalled that Ms Benning was drinking white wine. He thought that he had a meal at the Lighthouse at about 7.00 or 7.30 pm. He thought that Mr Payne left the group after everyone finished dinner, at about 7.30 or 8.00 pm, and that Mr Dunster drove him home. He thought Mr Dunster was gone for about an hour or an hour and a half.
He recalled that he was drinking schooners of beer and that he also had two shots of black Sambucca. He thought he had those shots just after dinner. He recalled having those shots with Ms Benning and Guy Barbour. He recalled that all five of his group of friends were “shouting” each other, so that he was buying four Victoria Bitters and one white wine at a time. He gave evidence that Ms Benning would have had the same amount of white wines as he had beers. He could not recall how many beers he had to drink. In cross-examination he accepted that he was heavily intoxicated, and could have had up to 20 schooners of Victoria Bitter.
He said that at about 1.00 am members of his group of friends, although he could not recall which, had decided to leave the Lighthouse and go to Mr Dunster’s house. He agreed in cross-examination that they departed the Lighthouse at 1.30 am. He said that at some stage he had possession of Ms Benning’s handbag and keys, although he was unable to recall how that came about. He gave evidence that he had previously driven Ms Benning’s car. He recalled that it was agreed that he would drive and that he knew how inappropriate that was at his level of intoxication and that he drove because Ms Benning did not want to leave her car in the car park overnight. He did not recall suggesting that they catch a taxi.
He recalled getting into the car and driving to where the taxicabs were located to pick up his friends. He gave evidence that once he exited the car park he turned left and eventually came to an intersection, and then turned left again, which would have been on to Aikman Drive. He recalled that in leaving the car park to getting to Aikman Drive he clipped the gutter on the left-hand turn. He gave evidence that just after he did that Ms Benning said to the appellant “pull over, I want to drive”. He did not respond, however, both Mr Dunster and Mr Gardner told him to keep driving. He denied clipping the gutter outside McDonald’s and the bowling alley. He then continued to drive and Ms Benning again asked him to pull over. He testified that he did not pull over when she asked him to, as she was very intoxicated and Mr Dunster and Mr Gardner had told him to keep driving. He agreed that he had drunk too many alcoholic beverages to be legally behind the wheel. He gave evidence that he “felt okay” driving along. He then recalled proceeding to Ginninderra Drive and turning left and then turning right onto William Slim Drive. He recalled that Ms Benning continued to comment that he should pull over, as she wanted to drive.
The appellant thought that he was travelling at approximately 60 to 70 kilometres per hour on William Slim Drive. He testified that he was going below the speed limit, as it was dark. He testified that just prior to the intersection with Dumas Street the steering wheel was “ripped out” of his hands. He said that Ms Benning reached over and grabbed the steering wheel and pulled it down to the left. He said it happened very quickly. He recalled that he was not able to hang onto the wheel and that the car then mounted the curb and collided with the tree. Under cross-examination he testified that he could not exactly recall the car leaving the road or going over the kerb. He could not recall whether, in the time between Ms Benning grabbing the wheel and pulling down on it and hitting the tree, he was able to regain control over the steering wheel. He also could not recall whether he reacted by braking. The appellant gave evidence that he panicked while he was on the phone to the operator of the triple zero call. He disagreed with the proposition that the reason he did not know where he was or why he asked for an “emergency taxi” during the triple zero call was because he was affected by alcohol. He also said the reason he told Acting Sergeant Macklin that the driver had “run off” was because he was worried about the accident and being “done for DUI”.
Following the car accident the appellant was taken to hospital where it was ascertained that he had sustained a couple of fractured ribs, a fractured ankle and a laceration to his knee. He gave evidence that on the day of Glenn Dunster’s funeral he went to the house of Mr Dunster’s parents and spoke to his father, mother and two brothers, Thomas and Christopher. He testified that he went there because he “needed to let them know what had happened”. He recalled what he said to them, “I told them that we were driving up William Slim and previously I’d clipped the gutter, and then all of a sudden Dannielle had [ripped] the steering wheel out of my hands”. He did not recall saying anything else to them about the circumstances of the accident and described it as an emotional situation, and recalled that everyone was crying. In cross-examination, he said that he believed Mr and Mrs Dunster were lying in terms of their recollection of these events.
During cross-examination, the appellant gave evidence that he would have gotten up for work on 31 January 2014 at about 6 o’clock, as he was a concreter. By 1.00 am on 1 February 2014 he had been awake for approximately 19 hours. The Crown prosecutor suggested to him that the fatigue from being awake must have been compounded by the alcohol that he drank, to which he responded “not that I noticed”.
The appellant also gave evidence that he had held a full drivers licence for 5 years and had also held a heavy vehicle licence since he was about 19 years of age.
The appellant disagreed with the suggestion that if he had not been so affected by alcohol he may have done something else to avoid the collision. However, he agreed that his reaction to an emergency was more impaired than when he was a sober driver. He disagreed that he told Mrs Dunster that he drifted or went to the wrong side of the road or that this is what happened. He also disagreed with the suggestion that he had simply lost control of the car and ran into a tree. He gave evidence that when Ms Benning pulled the steering wheel he had two hands on the steering wheel and that he had them, roughly, at the three and nine o’clock position on the steering wheel. He later thought that his hands were at the two and ten position. He gave evidence that Ms Benning grabbed the wheel “probably under [his] left hand”. He could not recall Ms Benning letting go of the wheel. He thought that she “just pulled it down” to, roughly the seven or six o’clock position on his lap. He thought Ms Benning grabbed the wheel at about the eight o’clock position. He thought Ms Benning grabbed the steering wheel with her right hand, as she was turned to the right. The appellant was unsure how far Ms Benning pulled the wheel, and whether it was even 70 degrees. He thought Ms Benning might have said “pull over and let me drive” about five times before she pulled the wheel.
The appellant agreed that Ms Benning is of a smaller build and had less body strength than he did. He accepted that as a concreter he had “strong arms”. He disagreed that he would have been able to resist her grabbing the wheel. He recalled telling Mr Bannink that Ms Benning had “yanked the wheel out of my hands”. He recalled saying to the police “Just do it. Fucking shoot me. I’ve killed him”. He also recalled saying in the ambulance on a number of occasions words to the effect that his life was now “fucked” and that he had “killed his best mate”. He disagreed that at that early stage he recognised that it was his driving that caused the collision. He agreed that while he was in the ambulance on the way to the hospital he did not say words to the effect that Dannielle Benning had grabbed the steering wheel. He disagreed that he said to Mr Gardner at the hospital “Sorry for causing this accident”. He also disagreed that he said to Mr Gardner “I’m sorry for what I’ve done to you”. He also believed that Mr Gardner was lying about this conversation. He disagreed that he was not able to control the car during the drive to William Slim Drive.
In cross-examination, the appellant agreed that he had prepared to give evidence at trial. He also agreed that he was provided with the brief of evidence shortly after he was charged in 2014 and had read most of the statements contained in that brief carefully.
Evidence of Christopher Hall
Christopher Hall is a mechanical engineer and has consulted in the field of motor vehicle accident reconstruction for many years. He gave evidence about how a yaw of the type observed from the tyre marks on William Slim Drive can be initiated. Mr Hall testified that:
In order for the yaw to develop this rapidly and travel through an arch of approximately a 50 metre radius, and given the friction coefficient on this road surface, that requires a very rapid steer input to a level that will cause the vehicle to diverge – to move to the left very quickly. Typically, to get the vehicle to start making tyre marks as we see so very early in the travel, you will need a rapid steer input in the order of 500 degrees per second or more and the degree of turn would need to exceed 90 degrees. It would need to be at least 90 to, say, 120 degrees.
He agreed that once a yaw of this sort had been initiated the degree of rotation that the vehicle had undergone would continue unless something interferes with it. He disagreed with Sergeant Dauth that there was no indication that there was any attempt to avoid collision once the vehicle left the roadway. He considered that there was an indication that an input from the driver occurred, either steering, braking or a combination of the two. This was based on his analysis of the photographs. In particular he considered that there had been some clockwise rotation as the vehicle travelled on to the grass verge and that the right rear moved back to the left rather than continuing out to the right. He was unable to say when the intervention by the appellant would have occurred as there is always a delay between steering input and changing direction. He also gave evidence that once the vehicle entered the grass verge in a yaw its ABS brakes would have very little effect.
Mr Hall gave evidence that the vehicle was located in the northbound lane, aligned essentially in the direction of the lane, with its wheels tracking slightly to the right of the normal path of travel prior to the commencement of those yaw marks. Mr Hall considered the pre-yaw speed to be 65 kilometres per hour, although considered it could have been as high as 70 kilometres per hour. He estimated that it would take 1.1 seconds from the steering input which initiated the yaw until the vehicle was on the grass verge and off the main surface. Mr Hall also gave evidence that the mean perception and reaction time of an alert and sober driver would be about 1.5 seconds. He agreed that it would have taken approximately 2.25 seconds from the commencement of the yaw until impact with the tree. He agreed that there would be 0.75 of a second for the appellant to attempt in some way to avoid the collision. He considered that even if in some way the brakes were then applied and the steering wheel was then turned, it was unlikely to have a significant effect. Mr Hall estimated that the speed at impact was between 50 and 60 kilometres per hour.
Other Evidence
The jury in considering their verdict also had the benefit of a view of the route taken by the appellant over the distance of approximately 3.2 kilometres from the car park to the scene of the accident. The appellant submitted that the jury were entitled to take into account the “convoluted” and “potentially confusing” nature of that journey in deciding what must have happened near the intersection of Dumas Street and William Slim Drive to cause the vehicle to suddenly and rapidly leave the roadway to the left and out of control.
As referred to earlier, a recording of the triple zero call was tendered and played for the jury. This was also played at the hearing of the appeal. The appellant is heard to request “emergency taxis”. His words are clearly slurred and he then has trouble identifying what road the collision had occurred on.
The CCTV footage of the car park at the Lighthouse was also tendered and played for the jury, as was footage from inside the Lighthouse. This was also played at the hearing of the appeal. At the hearing of the appeal, the respondent submitted that the appellant appeared visibly “slumped and looking fatigued” in the footage at the bar. In relation to the footage taken that is facing towards the exit and which depicts the appellant leaving, the respondent submitted that the appellant was “not walking in a straight line and that his gait is uneven”. Counsel for the appellant noted that the appellant was neither stumbling from wall to wall or from side to side as he emerged from the premises, and that the appellant was searching in Ms Benning’s handbag as he leaves the premises, presumably for the keys of the motor vehicle. He also noted that it is difficult with the somewhat “stutter CCTV footage” to make a conclusive finding about the appellant’s steadiness on his feet as he is exiting the premises.
The trial judge’s directions to the jury
The appellant took no issue with the directions of the trial judge. However, the respondent took issue with one of the directions of the trial judge. The trial judge directed the jury that before they could convict the appellant, they must be satisfied beyond reasonable doubt that his driving was “a substantial and operating cause of the accident”. The trial judge directed the jury that as there was no evidence that the appellant was driving dangerously in a way that might warrant Ms Benning pulling the wheel to the left, if they accepted the appellant’s version that Ms Benning did pull the wheel, they must acquit.
The respondent contended that this direction was unduly favourable to the appellant. However, it submitted given this direction there could be no doubt that the jury’s verdict was the result of the rejection of the appellant’s version of events.
The parties’ submissions
The appellant’s submissions
Much of the appellant’s submissions focused on the evidence that supported the appellant’s case theory at trial. We have already recounted this in some detail and will not now repeat this evidence.
The appellant submitted that at trial there were three competing hypotheses:
(a)the appellant, being substantially under the influence of alcohol, must have caused the accident by virtue of his intoxication;
(b)if, as asserted by the appellant, Ms Benning had suddenly grabbed the steering wheel of the vehicle at the time the appellant was driving, she must have done so in the circumstances of some unknown emergency arising from the appellant’s intoxication. From this it could be said that the appellant’s intoxicated state was the effective cause of the collision; and
(c)the steering wheel was seized by Ms Benning for some other reason.
In relation to hypothesis (b), the trial judge directed that there was no evidence to support the proposition that the appellant was driving in a dangerous fashion prior to the yaw.
The appellant submitted that even if the jury reasoned entirely against the evidence of the appellant, they would be left with an accident which occurred in the circumstances which were established by the totality of the evidence. He submitted that this would have required the jury to engage in a degree of speculation and guesswork as to how precisely the level of intoxication of the appellant caused the accident.
As mentioned, the CCTV footage of the car park at the Lighthouse was played at the appeal hearing. The appellant particularly invited us to attend to three things:
(a)to observe the appellant as he left the licensed premises and the way he perambulated across the car park;
(b)to observe the way the appellant drove up to his group of friends and then drove away; and
(c)to observe the way in which Ms Benning was conducting herself, particularly that she was acting in an “unpredictable fashion”.
The appellant submitted that the CCTV footage depicted him driving in an “unremarkable” way and that “...it goes to the issue whether it might reasonably be inferred from the state of his intoxication that he suddenly and without reason turned hard left on a straight section of road into a yaw and into a tree”. The appellant further submitted that human experience and commonsense would indicate that something must have happened, given that the vehicle was driving at a normal rate in its lane prior to a very sharp turn to the left. He submitted that it required a “quantum leap’ to conclude that the collision must, to the exclusion of any other explanation, have resulted from the appellant’s intoxication. He considered when: Mr Bannink’s evidence that the appellant said the wheel was “ripped out of his hands”, the expert evidence about the way in which the yaw must have been initiated, and the evidence of what the appellant said to the deceased’s parents on the day of the funeral were added in, it was not open to the jury to reject the innocent hypothesis.
The appellant also submitted that the jury were entitled to reject the appellant’s “admission” to Mr Gardner following the accident, as it was never recounted to Constable Barratt, who took Mr Gardner’s statement. Constable Barratt confirmed during his evidence that he did not exercise “editorial control” over Mr Gardner’s statement. We note that at trial the appellant’s counsel also cross-examined the witnesses that were present at the scene of the accident, as to whether the appellant’s blood shot eyes could be the result of him crying and his unsteadiness on his feet attributable to his injuries. The appellant submitted that there were a number of things about the appellant’s presentation at that time which could be considered neutral.
The appellant submitted that unless the jury could reject with certainty the account of the circumstances given by the appellant they were bound to return not guilty verdicts on both counts. The appellant also drew our attention to the photographs in the appeal book which depict the trajectory of the vehicle from the roadway onto the grass verge. This depicts that the crash was effectively “head on” and more angled towards the driver’s side than the passenger’s side. He also drew our attention to Mr Hall’s evidence that to initiate the yaw there would need to be a sharp turn made at speed, which the appellant submitted is inconsistent with the car simply drifting off as a turn of the wheel was required. The appellant also submitted that Ms Benning’s injuries were predominately left sided injuries consistent with her having been turned towards the driver, having grabbed the steering wheel and holding it at the point when the vehicle left the road and hit the tree. This was advanced as a matter of commonsense at trial.
He further submitted that to come to the conclusion that it could reject with certainty the account of the circumstances given by the appellant the jury must have engaged in impermissible speculation, as there was no contrary inference which could be reasonably drawn. The appellant submitted that the guilt of the accused rested substantially upon circumstantial evidence. He then submitted that guilt in those circumstances must be not only a rational inference but the only rational inference that the circumstances would enable the jury to draw, citing Plomp v The Queen [1963] HCA 44; 110 CLR 234 at 252. An inference to be rational and reasonable must rest upon something more than conjecture: Peacock v The King [1911] HCA 66; 13 CLR 619 at 661 (Peacock v The King).
The appellant also submitted that his intoxication was irrelevant to the issue of causation, although only if the version given by the appellant is accepted. He based this on the expert evidence that even a sober and alert driver would have no more than 0.75 of a second in which to avoid the collision after the vehicle went into the yaw. He further submitted that there was no evidence capable of informing the jury how his intoxicated driving caused the collision. Although, he conceded that the jury were entitled to accept the opinion of Dr Parekh and conclude that the appellant was incapable of exercising proper control of the motor vehicle.
The appellant further submitted, relying on the authority of Elwood v The Queen, that the present case is one where the advantage of the jury is diminished. Particularly, the appellant submitted, this was not a case where there was competing testimony; a version given by one witness or witnesses and a contrary version by another witness or group of witnesses. He submitted that the only person who gave evidence about what actually happened was the appellant. He went on to submit that the most that could be called “in aid” was the spontaneous utterance at the scene of the accident by the appellant, “steering wheel ripped out of my hands”, almost as part of the res gestae.
The respondent’s submissions
The respondent rejected the proposition that the defence case at trial raised a reasonable alternative hypothesis that the jury were bound to accept. The respondent submitted that the evidence said to support the case theory of the appellant was “fanciful, self-serving and unreasonable”, and left the jury with a set of facts that they could safely find to be inconsistent with any other reasonable hypothesis other than guilt, citing Peacock v The King. The respondent further submitted that a fair reading of the appellant’s evidence would lead to the conclusion that the appellant had changed his evidence, had tailored his evidence and had unconvincingly claimed to recall details in exact fashion.
The respondent further submitted that the Crown case did not rest on conjecture and cited the case of Jones v Great Western Railway Co [1930] All ER Rep Ext 830 for the proposition that conjecture in this context means “essentially a baseless guess”. The respondent submitted that to suggest that the jury in this case was merely “guessing” at the appellant’s guilt in returning its verdicts ignores much of the evidence. The respondent then set out in some detail a summary of the key evidence, as we have already noted this has been set out in some detail above. We note that that the Crown pointed to the following evidence as proving the appellant’s driving was a substantial cause of the death and injuries:
(a)The appellant was the driver of the motor vehicle at the time of the collision by his own admission to a number of first responders;
(b)The vehicle left the road as a result of a sharp steering input to the left which caused the vehicle to enter in to a yaw, mount the kerb and collide with a tree;
(c)There was no observable attempt made to correct the yaw;
(d)The appellant’s blood alcohol reading was between 0.207 and 0.225 at the time of the driving and the collision;
(e)At that level it was not possible for anyone to be capable of having proper control of a vehicle;
(f)The appellant had made an admission to a surviving passenger in hospital a few hours later that he had caused the accident;
(g)The appellant was so significantly intoxicated at the collision scene that he was swaying back and forth, slurring his words and stumbling;
(h)The appellant made admissions to the deceased’s parents that he had clipped a gutter or almost clipped a gutter on his way to the accident scene, which, defence counsel conceded in closing submissions at trial, was probably the result of his intoxication;
(i)When that happened, everyone had asked the appellant to stop;
(j)The appellant was driving well below the posted speed limit in the moments prior to the collision, despite weather conditions being fine;
(k)There was no mechanical fault with the vehicle; [and]
(l)There were no defects in the road.
As we referred to earlier, the respondent took issue with the trial judge’s directions and referred to the law on substantial cause. The respondent submitted that it was clear: causation is a question of fact, not law; the question of proximity relates to the efficiency of the cause, rather than, for instance, proximity in time; and the question of causation requires the drawing of an inference based on proved facts: Leyland Shipping Co Ltd v Norwich Union Fire Insurance Society Ltd [1918-19] All ER Rep 443 (HL) at 453; Campbell v The Queen (1980) 2 A Crim R 157 at 161; Royall v The Queen [1991] HCA 27; 172 CLR 378 at [19]; and Jones v Great Western Railway Co [1930] All ER Ext 830 (HL) at [842]. It is not necessary for us to determine, in the context of these appeals, whether the direction complained of was an inaccurate statement of the law. What is of significance is what must inevitably be inferred from the jury’s verdicts in the light of the direction.
Consideration
In our opinion these appeals should be dismissed. The jury was entitled to reject the evidence of the appellant that the collision occurred as a result of Ms Benning suddenly seizing and turning the steering wheel, causing the appellant to lose control of the vehicle and resulting in a collision which could not have been avoided by a sober driver. The jury was entitled to infer that the appellant lost control of the vehicle due to his intoxication, thereby causing the collision and the subsequent death of Mr Dunster and injuries to Ms Benning.
It is apparent, as the respondent submitted, that the jury must have rejected the evidence of the appellant about the asserted actions of Ms Benning. The direction given to the jury, whether right or wrong, was to the effect that they were obliged to acquit the appellant unless they were satisfied beyond reasonable doubt that the accident did not occur as a result of Ms Benning’s seizing and turning the steering wheel as asserted by the appellant. The jury’s verdicts mean that they were satisfied beyond reasonable doubt that the version of events given by the appellant should be rejected.
There were good reasons why the jury should have rejected the appellant’s evidence. From the outset, the appellant attempted to avoid or minimise his culpability. He initially lied to police who attended the scene of the accident, claiming he had not been the driver, and that the driver had fled the scene. When he ultimately admitted to police at the scene that he had been the driver, he said nothing to them concerning the allegation that the collision had occurred as a result of the actions of Ms Benning. Similarly, he said nothing to the ambulance officers who treated him and conveyed him to hospital about Ms Benning causing the accident. In our opinion, even allowing for the fact that the appellant had suffered some (relatively minor) injuries in the collision, it is inconceivable that he would not have informed police of Ms Benning’s actions had they, in truth, occurred as he claimed. The appellant initially tried to avoid all responsibility by claiming he had not been the driver. It is simply not credible that he would have moved from that position, as he did, to a complete acceptance of responsibility for the collision, and the consequent death of Mr Dunster, as evidenced by his statements at the scene reported by Acting Sergeant Macklin if there was a truthful intermediate position which reduced his culpability.
The jury was also entitled to accept the evidence of Mr Gardner that the appellant had apologised to Mr Gardner for causing his injuries while Mr Gardner was still in hospital, despite the apparent difference between the evidence of Mr Gardner and that of Constable Barrett about Mr Gardner telling police about that conversation.
The jury was uniquely placed to assess the credibility of the witnesses, and that of the appellant. It saw and heard the appellant and the other witnesses give their evidence, an advantage not shared by this Court. It is true that Mr Bannink gave evidence of the appellant saying, at the scene, words to the effect that the steering wheel had been ripped out of his hands, but there was no evidence from the witness or the appellant asserting that this was the result of the actions of Ms Benning, as opposed, for example, to it having occurred when the car mounted the gutter or hit the tree.
The appellant’s alternative submission was that, even if his evidence was rejected by the jury, the jury could not have convicted him without engaging in speculation as to what had caused him to lose control of the vehicle before the collision. We take this to be a submission that it was not open to the jury, having rejected the appellant’s evidence, to infer that the loss of control and consequent collision was caused, in any relevant sense, by the appellant’s intoxication.
In our opinion, the circumstances of this matter do not require consideration of the law relating to causation. The jury was directed that to convict the appellant they must be satisfied that his driving was “a substantial and operating cause of the accident”. No challenge to this direction was made to the trial judge, or in this appeal. The submission made by the appellant is directed towards a lack of evidence, rather than an assertion that the evidence established causation which would not permit conviction. It is true that there was no direct evidence of how or why the steering wheel of the vehicle driven by the appellant came to be manipulated, as it must have been according to the expert evidence, before the vehicle skidded, left the road and hit the tree. The appellant was the only person who could give evidence of what occurred, and, more importantly, why it occurred. He gave evidence, but it was rejected by the jury. The question is whether the evidence at the appellant’s trial, excluding his evidence, permitted an inference that the collision occurred because the appellant was under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, as opposed to some other reason unconnected with the appellant’s intoxication.
In our opinion there was ample evidence to permit the jury to infer that the appellant’s level of intoxication was a “substantial and operative cause” of the collision. There was evidence that at the time of the collision the appellant had a blood alcohol content of between 0.207 and 0.225 grams of alcohol per 100 millilitres of blood. There was essentially unchallenged evidence from Dr Parekh that an average person with a blood alcohol content in that range would not be capable of being in proper control of a vehicle, with the alcohol in their body adversely affecting their vigilance, information processing, concentration, motor coordination and vision. The appellant had not slept for about 19 hours before the collision, and had spent the day working as a concreter. The evidence of Dr Parekh was that fatigue exacerbated the risk of accident associated with alcohol consumption. There was also evidence that the appellant was visibly affected by alcohol at the scene of the collision. The jury also had the advantage of viewing the CCTV footage from the Lighthouse. We are satisfied, having viewed the footage ourselves, that the appearance and behaviour of the appellant, as depicted in the footage, is consistent with him being intoxicated and tired while in the bar. The CCTV footage from the car park outside the Lighthouse is of no particular assistance in determining the extent to which the appellant’s intoxication affected him and his ability to control a motor vehicle at the time he left the Lighthouse. There was nothing about the road or its surface, the weather or the condition of the vehicle to suggest that the loss of control and collision was caused by anything except the actions of the driver. The appellant made statements at the scene reported by Acting Sergeant Macklin, consistent with him accepting responsibility for the collision and the death of Mr Dunster. There was also evidence of him making statements to Mr Gardner at the hospital consistent with him accepting responsibility for the collision.
This was not a case where the jury was required to speculate about the cause of the loss of control of the vehicle and the collision. There was evidence that the appellant’s level of intoxication was such that he could not properly control a motor vehicle. There was evidence that the vehicle, while being driven by the appellant, lost control and collided with a tree, causing the death of Mr Dunster and grievous injury to Ms Benning, and in circumstances not explicable by the weather, the road or the condition of the vehicle. There was also evidence of admissions made by the appellant to having caused the collision. The jury, having rejected the appellant’s version of events, was well entitled to infer that the appellant’s intoxication was a substantial and operative cause of the collision. In our opinion, this was the only rational inference permitted by the evidence.
Conclusion
The appeals are dismissed.
| I certify that the preceding one hundred and sixteen [116] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 22 November 2016 |
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Amendments
19 January 2017 Replace “BURNS J” with “THE COURT” Start of judgment
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