Semaan v The Queen
[2013] VSCA 134
•3 June 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0215
| BAKHUS SEMAAN | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN, ASHLEY and PRIEST JJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 23 May 2013 |
DATE OF JUDGMENT: | 3 June 2013 |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 134 |
JUDGMENT APPEALED FROM: | The Queen v Semaan (Unreported, County Court of Victoria, Judge Smallwood, Date of Conviction, 3 September 2012) |
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CRIMINAL LAW – Appeal – Conviction – Appellant convicted of one charge of dangerous driving causing death and five charges of dangerous driving causing serious injury – Whether trial judge erred in admitting the earlier driving of the accused – Whether trial judge erred in directions to the jury concerning the purpose to which the jury might use the evidence of the appellant’s earlier driving – Appeal allowed – Convictions quashed and retrial ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr O P Holdenson QC | David Barrese & Associates |
| For the Respondent | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Priest JA.
ASHLEY JA
I agree in the reasons of Priest JA, and with the order which he proposes.
PRIEST JA:
Introduction
By leave granted 11 April 2013, the appellant appeals against convictions following trial in the County Court in which the appellant was found guilty by the jury of one charge of dangerous driving causing death (charge 5), and five charges of dangerous driving causing serious injury (charges 7, 9, 11, 13 and 15).
In my opinion, for the reasons that follow, the appeal should be allowed and the convictions quashed. I would order a retrial.
Convictions and grounds of appeal
The charges on the Indictment related to two separate occasions of driving. Charges 1 to 3 related to driving at Mount Hotham ‘between the 29th day of June 2010 and the 30th day of June 2010’. Each of the charges upon which the appellant was convicted related to driving at Cobungra on ‘the 2nd day of July 2010’.
At the end of the prosecution case the trial judge entered verdicts of not guilty[1] on three counts of reckless conduct endangering a person[2] (charges 1, 2
and 3). The jury found the appellant not guilty of one charge of culpable driving[3] (charge 4), but guilty of the lesser alternative charge of dangerous driving causing death[4] (charge 5). He was also found not guilty on five charges of negligently causing serious injury[5] (charges 6, 8, 10, 12 and 14), but guilty of the lesser alternatives of dangerous driving causing serious injury[6] (charges 7, 9, 11, 13 and 15).
[1]Criminal Procedure Act 2009, s 241.
[2]Crimes Act 1958, s 23.
[3]Crimes Act 1958, s 318.
[4]Crimes Act 1958, s 319(1).
[5]Crimes Act 1958, s 24.
[6]Crimes Act 1958, s 319(1A).
There are two grounds of appeal. By the first it is contended that the trial judge ‘erred in admitting the earlier driving of the accused’; and by the second that the trial judge ‘erred in his directions to the jury concerning the purpose to which the jury might use the evidence of the appellant’s earlier driving’.
In my opinion both grounds have substance.
Overview of the offending
The appellant was employed as a manager for a cleaning company, ‘A Better World’, at Mount Hotham ski resort. Part of his role involved driving cleaners back and forth from accommodation at Dinner Plain and Omeo to their work at Mount Hotham. Dinner Plain is approximately ten kilometres from Mount Hotham, and Omeo 40 kilometres further on. Being June, it was winter and it was cold.
Charges 1 to 3, reckless endangerment, related to driving late on 29 June or in the early hours of 30 June 2010. The appellant was driving in the Mount Hotham ski village when his vehicle skidded on snow and cane to rest near the edge of the road. At the end of the prosecution case the trial judge entered verdicts of not guilty on these charges.
The events leading to convictions for dangerous driving causing death, charge 5, and dangerous driving causing serious injury, charges 7, 9, 11, 13 and 15, occurred on 2 July 2010. That day the appellant drove some of the cleaners from Mount Hotham to Dinner Plain. One passenger described the appellant’s driving as ‘fine’ during that trip, while others said that it was ‘frightening’, stating that the appellant was asked to slow down. The trip leading to the death and serious injuries commenced when the appellant left Dinner Plain in a seven seater vehicle with six passengers on board. It was in the evening.
According to a witness, for about the first ten kilometres the appellant drove without incident. He then began to drive at excessive speed and was cutting corners and crossing onto the wrong side of the road. Some of the passengers asked the appellant to slow down and be careful. The appellant did not comply. All but one in the car spoke Punjabi, and little English was spoken. After a time the appellant lost control of the vehicle and it rolled three or four times. One passenger was killed. Another five suffered serious injuries. Speed was not, however, alleged to be a factor in the accident.
The evidence
Driving on 29 and 30 June 2010
Jashvinder Singh was a passenger in a vehicle driven by the appellant on the Great Alpine Road. It was morning, either 29 or 30 June 2010. The ‘road was wet and there was snow on it’. Another of the passengers, ‘Ash’, said to the appellant, ‘I’m feeling scared. Please drive slowly’. Mr Singh himself said nothing, but it looked to him that the appellant ‘was driving fast’. On a bend, the car started fishtailing, and then stopped very close to the edge of the road and the drop into the deep valley. Mr Singh grabbed another passenger, ‘Simmi’ (Jasvirkau Sandhu), and jumped out of the car.
Jasvirkau Sandhu was also a passenger. It was about 6.30am and dark. Ms Sandhu described the car ‘slipping’ and ‘skidding backwards’ before it came to a stop just right on ‘the edge of the deep down valley’. In cross-examination she agreed that there was snow on the road, and that the car had skidded because of the snow.
Agyapal Kaur was the third passenger. At 6.30am they set off from Dinner Plain for Mount Hotham. She described the vehicle as going ‘fast’, and then it started to ‘fishtail’. It moved onto the wrong side of the road three or four times. She thinks she heard someone say, ‘Slow down the car’. The appellant stopped the vehicle after it swerved. It was stopped on the side near the valley. Ms Kaur and the appellant were both scared. When he started driving again, the appellant drove ‘very slow’.
Driving on 2 July 2010
Amandeep Kaur Grewal is the wife of the deceased, Amandeep Singh. On the Tuesday preceding 2 July 2010,[7] in the middle of the day, she was with several others in a vehicle driven by the appellant. He was driving ‘very fast and he was going from one side [of the road] to the other side’, ‘crossing the white line’ to the incorrect side and ‘cutting corners’. She and others were scared. Ms Grewal said that the passengers were talking amongst themselves, saying that the appellant was driving in a ‘very wrong manner and … very fast’. The appellant asked her jokingly, ‘Are you scared?’. Although she in fact was very scared, she said she was not. In the evening of Friday 2 July 2010, at about 7.30pm, the appellant was driving her and others back to Omeo from Mount Hotham. It was dark. She put her head on her husband’s shoulder and slept. In the course of the trip, Ms Grewal recalled all the passengers in the car talking very loudly in Punjabi, and some were abusing the appellant. She was ‘fully sure’ that after she woke up she told the appellant to slow down. The car was ‘going very fast’. She was ‘feeling very scared’, and she ‘started crying and … saying prayers’. The car was ‘going zigzag’, crossing into the ‘opposite direction lane’. She saw the front of the car ‘tipping down’, and then her head banged on the window and she lost consciousness. The next thing Ms Grewal recalled was being on the ground. An ambulance arrived. She was told that both her legs were fractured. She was flown to hospital in Melbourne by helicopter.
[7]29 June 2010.
Gurmit Singh, another passenger, also gave evidence about the appellant’s driving on 2 July 2010. He has some ‘memory loss’, but he recalled the appellant ‘driving fast, like he was doing some stunts’ after driving ‘slowly’ for about the first 10 kilometres. By ‘stunts’, Mr Singh meant that the appellant was moving from one side of the road to the other and ‘cutting corners’. He was, Mr Singh thought, ‘showing off’. Mr Singh could feel the car ‘skidding’ and ‘slipping’. He and the other passengers asked the appellant to drive slowly. The appellant told the passengers to do their prayers, and said he would do his prayers, and he turned music on. He said to the passengers to, ‘Shut the fuck off’ (sic.), in English. The appellant then applied his foot to the brake very hard. The car had been ‘going very fast’ and then rolled three to four times. Mr Singh then lost consciousness. Later he was flown by helicopter to hospital.
Varinder Singh was a passenger whom the appellant drove from Mount Hotham to Dinner Plain. During that trip the appellant was ‘rushing’. After waiting at Dinner Plain, they set off for Omeo. Mr Singh did not notice the speed that the appellant was driving, but saw that the speedometer lights were not working. The appellant was driving ‘quite fast’, was ‘very careless’, was driving in both lanes, ‘was not slowing down at corners’ and ‘was driving as if he was in a rally car’. The appellant told the passengers, ‘Don’t worry. I know this road really well and this is my everyday job’. Mr Singh was feeling ‘very scared’. Passengers were asking the appellant to slow down but he did not slow down. When the appellant turned, the vehicle ‘was going zigzag, he was not able to control it and it just kept skidding’. The vehicle rolled over and Mr Singh was seriously injured.
Pankajkumar Patel was a witness who said that the other passengers were speaking Punjabi in the car, but that this is not his native language. He said he recalled a ‘sudden jerk’ and then the car rolled three or four times. In cross-examination he agreed that in a statement to police he said that the appellant’s driving was ‘fine’. Mr Patel did not hear anyone ask the appellant to slow down. As a guess he would say the speed of the vehicle was ‘maybe around 80 to 90 ks’. Mr Patel held an Indian driver’s licence. Before the car rolled, he recalled the car had been travelling on both the left and right sides of the road. Until the sudden jerk he was not scared.
Jose Santaella was a manager of the cleaning company employing various Indian nationals. Some days before the ‘rollover’ on 2 July 2010, one of the workers, ‘Ashley’, told him that the appellant was driving, and as they were ‘coming up the mountain, the back side of the car did slide out’. She was ‘jolly’ when she told him that.
In his record of interview with police, the appellant said that he is an ‘average’ or ‘normal’ driver, that he had driven the vehicle involved in the collision a ‘few times’ previously, and that he was used to the road. At the time of the accident the appellant recalled driving at ‘medium speed’, being about 60 kilometres an hour. He was aware the speed limit in that area was 100 kilometres per hour. The appellant recalled losing control around a bend ‘in the blink of an eye’. He was travelling in the correct lane at the time. The appellant had no recollection of what occurred after he lost control, and speculated that it may have been due to ice on the road. The appellant denied allegations of having been driving from side to side or driving too fast.
Evidence of the earlier driving was inadmissible – ground 1
Prior to trial, the prosecution had served and filed a Notice under s 97(1) of the Evidence Act2008 (‘the Act’) that it intended to rely on tendency evidence. The Notice contained the following:
3. The tendency sought to be proved is the tendency of [the appellant] to:
(a) act in a particular way, namely:
Driving a motor vehicle containing A Better World Employees from Mt Hotham to Omeo (or vice versa) recklessly, negligently or dangerously (as appropriate), in particular:
·Driving too fast for the conditions
·Driving too fast for the roads
·Cutting corners and/or travelling on the wrong side of the road when going around corners
·Continuing to drive recklessly or negligently in the face of being asked to slow down
·Deliberately swerving from side to side; or
·Asking his passengers if they were scared and continuing to drive in this way
Set out thereafter in the Notice was a table containing Particulars of Conduct.
In discussion between the trial judge and counsel, the prosecutor described the tendency evidence upon which it was sought to rely as ‘four separate incidents of the accused driving, all of which occurred within a few days of each other in similar circumstances’. Although the prosecutor did not spell them out with particularity, I take the four separate incidents of driving probably to be, first, that in the morning of either 29 or 30 June 2010, described by Jashvinder Singh, Jasvirkau Sandhu and Agyapal Kaur; secondly, that which occurred in the ‘middle of the day’ on the Tuesday preceding the ‘rollover’, described by Amandeep Kaur Grewal; thirdly, that described in the evidence of Varinder Singh, suggesting that on the first leg of the trip on 2 July 2010 the appellant was ‘rushing’; and, fourthly, the driving in the immediate lead-up to the rollover. (There was also the hearsay evidence of Mr Santaella, of what he was told by Ashley.)
The trial judge did not deliver a detailed ruling, but it seems that he admitted the evidence of prior driving ‘as effectively rebuttal of innocent explanation in terms of attacks on witnesses’. Although the meaning of this statement is obscure, other passages of discussion, and his Honour’s charge to the jury, strongly suggest that he was admitting the evidence of the earlier driving as evidence of ‘context’.
It is doubtful that charges 1 to 3 – which related to the driving on 29 and 30 June 2010 – were properly joined in the one indictment with charges 4 to 15.[8] No application for severance was, however, distinctly made by counsel for the appellant at trial. That was regrettable. On the hearing of the appeal, Mr Holdenson QC sought to explain the absence of an application for severance on the basis that, the judge, having ruled the evidence relating to charges 1 to 3 admissible in relation to the driving embraced by other charges in the Indictment, such an application would have been foredoomed to fail. Be that as it may, in my view such an application should have been made. It might have had the advantage of galvanising all involved into a proper consideration and analysis of the admissibility of the evidence.
[8]Clause 5(1), Schedule 1 of the Criminal Procedure Act2009, provides that an indictment may contain charges for ‘related offences’. By s 3, related offences means offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character.
Moreover, I am in no doubt that the evidence relating to the driving on 29 and 30 June 2010 (both the driving in the morning and the middle of the day) should not have been admitted – whether as tendency evidence or otherwise – with respect to the driving which was foundational of the counts upon which convictions resulted.
To summarise the conclusions that follow, in my opinion the evidence was not, as required by s 55(1) of the Act, probative of any fact in issue. Moreover, if it was tendency evidence, it did not ‘have significant probative value’ as required by s 97(1)(b) so as to prove that the appellant had a ‘tendency … to act in a particular way, or to have a particular state of mind’. It could not have properly been admitted as evidence of context.
The language of s 55(1) is redolent of the common law’s notions of relevance.[9] By s 55(1), ‘evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’.[10] In Chee[11] the Full Court (McInerney, Anderson and Brooking JJ) said:[12] ‘Putting aside exclusionary rules, the test of admissibility of evidence is whether it is probative: ie whether it increases or diminishes the probability of the existence of a fact in issue’.[13] Thus, whilst appreciating that admissibility of the instances of earlier driving is governed by the Act, in my view significant guidance is to be derived from similar cases decided under common law rules.
[9]See Washer v Western Australia (2007) 234 CLR 492, 498 [5] (n 18).
[10]By s 56(2) evidence ‘that is not relevant in the proceeding is not admissible’.
[11]R v Chee [1980] VR 303.
[12]Ibid 308. See also Director of Public Prosecutions v Kilbourne [1973] AC 729, 757; R v Stephenson [1976] VR 376, 380–1; Goldsmith v Sandilands (2002) 76 ALJR 1024, 1025 [2]; 190 ALR 370, 371; R v Priest (2002) 137 A Crim R 133, 140 [19].
[13]Other aspects of Chee were disapproved of by the High Court in Perry v The Queen (1982) 150 CLR 580, and the decision was not followed in R v Clune [1995] 1 VR 489, but the correctness of this statement of principle remains unchallenged.
A little over a century ago, in Lewis[14] the Full Court (a’Beckett, Hodges and Cussen JJ) were of the opinion that on a trial of manslaughter by the negligent driving of a motor car, evidence of the excessive speed of the accused’s vehicle a short distance from the scene of a fatal collision was correctly admitted, holding that ‘the rate the car was travelling prior to the accident, half a mile from the scene of the accident, bears directly on the probabilities as to the rate of speed at which the car was travelling when the accident occurred’.[15] The finding that the evidence of earlier driving was admissible turned on a close temporal and geographical connection between the earlier instance of driving and that which led to conviction.
[14]R v Lewis [1913] VLR 227.
[15]Ibid 229–30.
By way of contrast, Horvath[16] was a case of culpable driving, where evidence had been admitted of bad driving by the applicant some 45 or 50 minutes before, and 30 miles or more from, the fatal collision. The Full Court (Winneke CJ, Little and Stephen JJ) held that the evidence should not have been admitted. The Court observed:[17]
Where acts of driving are substantially separated in time and place, evidence of one is not, in our opinion, evidence of negligence of the other, in the absence of some connecting link, such as existed in R v Buchanan, [1966] VR 9, or in R v Lewis, [1913] VLR 227; 19 ALR 107. Failure to exercise care, depending, as it does, on the particular circumstances of the occasion is, in our view, not a constant feature of human behaviour and, accordingly, failure at one place and time not forming part of the occasion in issue does not, in itself, tend to prove failure at another time and place.
[16]R v Horvath [1972] VR 533.
[17]Ibid 538.
Similarly, in Walker[18] the Court of Appeal (Winneke P, Brooking and Charles JJA) held that on a charge of culpable driving, evidence of bad driving by the applicant some two hours before a fatal accident at another area of the highway should not have been admitted.[19]
[18]R v Walker [2001] VSCA 28.
[19]Ibid [18].
It is clear, in my view, that evidence of the manner of driving of a person prior to an accident in relation to which they are charged is relevant (and thus, subject to exclusionary rules, admissible) only if there is a sufficient relationship between that earlier driving and the driving which is the subject of the charges.[20] The general principles were set out by Winneke P in Scott:[21]
There is no magic about this type of evidence. Whether the lack of care and attention in driving at one point can be logically probative of lack of care and attention at another point must ultimately depend upon whether the two points are so closely related in time, distance and circumstance to allow the tribunal of fact to draw an inference that the manner of driving at the second point was of the same character as the manner of driving at the first point.
[20]R v Buchanan [1966] VR 9, 12; R v Scott (2003) 141 A Crim R 323, 329 [11]; R v Duryea (2008) 103 SASR 70, 83 [56]; R v Fischer (1996) 23 MVR 507.
[21]R v Scott (2003) 141 A Crim R 323, 329 [11] (emphasis added).
In my opinion, in this case the evidence of the two instances of driving days before that which ultimately led to the death and injuries was too remote in time and circumstances to be relevant to the driving which led to the convictions. I take the same view of the evidence of the driving on the first leg of the trip on 2 July 2012. And for the sake of completeness, I should say that the admissibility of the evidence of Mr Santaella as to what he was told by ‘Ashley’ completely eludes me.[22]
[22]No ground distinctly raised the admissibility of this hearsay evidence. Quite apart from the fact that it was irrelevant, I very much doubt that it was admissible under s 65(2)(b) or (c) of the Act.
As I earlier observed, the prosecution apparently sought admission of the earlier incidents of bad driving as tendency evidence – which is admitted to show that an accused has a tendency to act in a particular way or have a particular state of mind – yet the judge seems to have admitted the evidence in ‘rebuttal of innocent explanation’. This suggests that the judge may not have paid adequate attention to the high threshold of admissibility that s 97 of the Act demands.
Section 97(1) relevantly provides:
97. The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless –
…
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
The Dictionary to the Act defines the probative value of evidence as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. Section 97 provides a threshold to admissibility in that it is not enough for tendency evidence[23] merely to have probative value – the probative value must be significant. No definition or explicit guidance is provided in the Act, however, as to the meaning of the adjective significant, but it is plain that it must have some work to do. Hence according to ordinary canons of construction, significant falls to be interpreted according to its ordinary usage.[24]
[23]The Dictionary defines tendency evidence as ‘evidence of a kind referred to in subsection 97(1) that a party seeks to have adduced for the purpose referred to in that subsection’.
[24]Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289, 297 (Hill J); Federal Commissioner of Taxation v Hamersley Iron Pty Ltd(1980) 48 FLR 134, 156–8; (1980) 33 ALR 251, 271-3 (Gobbo J).
There have been judicial attempts to ascribe a meaning to significant for the purposes of s 97. Thus, Hunt CJ at CL in Lockyer[25] and in Lock[26] expressed the view that one of the primary meanings of ‘significant’ is ‘important’ or ‘of consequence’. His Honour also expressed the opinion,[27] drawing on implications of the rejection of certain recommendations of the Australian Law Reform Commission,[28] that ‘significant’ probative value must mean something more than mere relevance but something less than a ‘substantial’ degree of relevance.[29]
[25]R v Lockyer (1996) 89 A Crim R 457, 459.
[26]R v Lock (1997) 91 A Crim R 356, 361.
[27]Ibid. Compare Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51, 63–4 [50]–[53].
[28]ALRC, Evidence – Vol 1, No 26 (Interim), 463 [810].
[29]See also R v AH (1997) 42 NSWLR 702, 709; R v Fordham (1997) 98 A Crim R 359, 370; R v F (2002) 129 A Crim R 126, 137 [22]; AW v R [2009] NSWCCA 1, [47]; JLS v R (2010) 28 VR 328, 333 [18]; KRI v R (2011) 207 A Crim R 552, 558 [28]; Dupas v R [2012] VSCA 328, [154].
In my opinion, attempts at reformulation of the statutory language are unlikely to be productive of much in the way of enlightenment;[30] but to my mind (and with respect to those views which coincide with that of Hunt CJ at CL) in context ‘significant’ must bear a meaning closer to ‘substantial’ than to ‘important’ or ‘of consequence’ which, as synonyms, to me do not adequately convey the import of ‘significant’. Three observations may, however, safely be made. First, s 97 is designed to impose a high (or, at least, higher) threshold of admissibility than for evidence which has ‘mere’ probative value. Secondly, the adjective ‘significant’ is directed to the quality of the evidence, rather than to its quantity. Thirdly, it is plain that the court is required to make an assessment of the quality of the evidence, since it is only if the court ‘thinks that the evidence will … have significant probative value’ that it may be admitted. In every case this will be a matter of fact and degree, and will be influenced by the nature of the fact in issue sought to be proved (or disproved).
[30]See Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51, 69 [74].
That tendency evidence must reach a high threshold of admissibility is emphasised by s 101(2) of the Act, which provides that in criminal cases, tendency evidence adduced by the prosecution cannot be used against him or her ‘unless the probative value substantially outweighs any prejudicial effect it may have’. Read together, the provisions of s 97(1) and s 101(2) make it abundantly clear that tendency evidence must carry a high degree of cogency before being admitted.[31]
[31]Compare R v Tektonopulos [1999] 2 VR 412, 417–8 [20]–[25].
In my view, a non-exhaustive list of factors which may bear upon whether evidence has significant probative value in proof of an alleged tendency might include the number of occasions that the conduct displaying the alleged tendency have occurred; the temporal (and, perhaps, geographical) connection of such conduct with the charged conduct; the degree of similarity between the evidence of tendency and the charged conduct on the various occasions alleged (for example, its distinctiveness, such as showing a particular pattern or modus operandi);[32] and whether the circumstances of occurrence of the conduct and charged conduct are similar.
[32]CGL v DPP (2010) 24 VR 486, 495 [30], 497 [40].
In this case, the prosecution’s Notice asserted that the ‘tendency that [the appellant] has or had’ was ‘a tendency … to act in a particular way’, namely ‘[d]riving a motor vehicle containing A Better World Employees from Mt Hotham to Omeo (or vice versa) recklessly, negligently or dangerously’. For the reasons earlier expressed, whatever the precise meaning might be assigned to ‘significant probative value’, the incidents of earlier driving sought to be relied upon in order to prove charges 5, 7, 9, 11, 13 and 15 were so separated in time and circumstance as to be lacking the necessary degree of probative value to be admissible.
I should not leave discussion on ground 1 without saying something about the basis upon which the trial judge admitted the evidence. He did so, as I have said, as ‘context’, drawing a distinction between context evidence (so called) and tendency evidence. The evidence of prior driving was not, however, admissible under the rubric of context evidence.
Evidence of ‘context’ – often, but not always, of a sexual relationship with, or interest in, a complainant, sometimes called ‘guilty passion’ – has long been admitted in trials of sexual offences. Relationship evidence has also been admitted in, for example, cases of violent offences, to show the antecedent relationship between victim and alleged perpetrator.[33] Such relationship evidence – whether sexual in nature or not – has been distinguished from tendency evidence under s 97, and owes its admissibility to different considerations.[34] Evidence of context is often in the form of ‘uncharged acts’. In cases of sexual offences, the reasoning underpinning its admission is that it may tend to explain the relationship between the accused and the complainant and explain why the complainant did not rebuff the accused or show distress or resentment. It has also been admitted to show it to be more probable that the charged acts occurred. When admitted for that purpose, such evidence may prove that the accused had an unnatural interest in, or passion for, the complainant. A preparedness to give effect to that kind of interest has been regarded as having a sufficiently high degree of relevance to justify its admission, as making it more likely that the offence charged was committed.[35]
[33]R v Anderson (2000) 1 VR 1; R v Gojanovic (2002) 130 A Crim R 179 (Coldrey J).
[34]Conway v R (2000) 98 FCR 204.
[35]JLS v R (2010) 28 VR 328, 334 [19].
I need not pause to consider whether the distinction that is drawn between the heads of admissibility of evidence of context and of tendency is a proper one. Where context evidence is admitted, however, it is exclusively to show the relationship between the accused and a victim from which certain inferences bearing on the charged conduct might be drawn. That kind of evidence could have had no place in the present case.
The first ground is made out.
Wrong directions on use of the evidence of prior driving – ground 2
The trial judge directed the jury that the evidence of earlier driving was to put the charged driving into ‘context’. Since the evidence was not admissible as context, he was wrong to do so. His later instructions not to act on ‘propensity reasoning’ could not have ameliorated the unacceptable prejudice flowing to the appellant from the wrongful admission of the evidence.
Not only would the jury not have derived any assistance from the directions on context to which our attention was drawn by counsel, but they would positively have been misled by them. It is probable that the jury – who were very much left without adequate assistance – would have misused the evidence. To illustrate the point it suffices to take notice of one of the directions given to the jury:
In the context of what the witness was describing in the context of what he had been doing previously, you could find their version of events are not out of the blue or are not unusual and that he has been driving in that way, that is that it is a situation when what he is doing results in an extreme, is the word the expert used, whatever that means, all right, oversteer, and that has killed somebody and seriously injured a number of others.
What the jury were meant to draw from these instructions is far from perspicuous. Having given this and other passages much reflection, I am of the view that the jury would have struggled to understand what was being conveyed. The comments were clothed as directions of law. Thus at the very least, this (and other directions) would have left the jury thinking that the earlier driving was, in some way or another, relevant to a consideration of the latter.
As I have said, the evidence of the earlier driving should not have been admitted. It having been admitted, however, it is plain that the jury were left without proper guidance as to its use[36] and, more importantly perhaps, its non-misuse.[37]
[36]By way of example, where evidence is admitted as tendency evidence by way of ‘similar fact’, among other things a judge is required to direct the jury not only as to the similarities, but also as to the dissimilarities, revealed by the evidence – R v Dupas(No 2) (2005) 12 VR 601, 629–30 [87]–[88], 636 [112].
[37]R v Conley (1982) 30 SASR 226, 231; R v Dolan (1992) 58 SASR 501, 503; BRS v The Queen (1997) 191 CLR 275, 305; R v Papamitrou (2004) 7 VR 375, 394–5 [40].
Ground 2 should be upheld.
Conclusion
In circumstances where the evidence was wrongly admitted, and the jury were then left without adequate instructions on its use (and non-misuse), it could not sensibly be contended that there has been other than a substantial miscarriage of justice.
The convictions on charges 5, 7, 9, 11, 13 and 15 must be quashed. I would order a retrial.
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