Stevenson v The Queen
[2014] VSCA 184
•22 August 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0050
| BRETT STEVENSON |
| v |
| THE QUEEN |
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
| JUDGE | ASHLEY JA |
| WHERE HELD | MELBOURNE |
| DATE OF JUDGMENT | 22 August 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 184 |
| JUDGMENT APPEALED FROM | DPP v Stevenson (Unreported, County Court of Victoria, Judge Pullen, 16 December 2013) |
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DETERMINED ON THE PAPERS
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| Appearances: | Counsel | Solicitors |
| No Appearances |
ASHLEY JA:
The applicant, Brett Stevenson, was convicted after trial in the County Court in September 2013 of dangerous driving causing death[1] and dangerous driving causing serious injury.[2] In December 2013, the trial judge imposed upon him a total effective sentence of two years and six months’ imprisonment. She fixed a non-parole period of 18 months’ imprisonment.
[1]Crimes Act1958 (Vic) s 319(1).
[2]Crimes Act1958 (Vic) s 319(1A).
Grounds
The applicant seeks leave to appeal against his conviction, relying upon these grounds:
(1)the trial judge erred in failing to discharge the jury in the applicant’s trial following the closing address of counsel for the co-accused;
(2)the verdict is unreasonable or cannot be supported having regard to the evidence.
Circumstances
The Western Highway in the vicinity of Myrniong is a divided road. As at July 2010, it consisted of an emergency lane and two running lanes.
The permissible speed on that section of the roadway at the relevant time was 110 kilometres per hour.
Shortly after 6.00pm on 19 July 2010, a motor vehicle driven by a co-accused, Travis Dunkley-Price, stopped in the left hand running lane of the west-bound section of the highway. That is the conclusion evidently reached by the jury, although the co-accused contended that he had brought his vehicle to a stop in the emergency lane.
A second vehicle (“the victims’ vehicle”) stopped behind the co-accused’s vehicle.
A number of vehicles evaded the obstruction which was thereby created.
The applicant’s vehicle did not do so. It drove into the rear of the victims’ vehicle. The driver of that vehicle was killed and a passenger was seriously injured.
At the time of the collision, it was dark, or nearly so.
There was evidence that the tail lights of the co-accused’s vehicle and the victim’s vehicle were illuminated.
Investigations showed that the applicant
(1)was not alcohol or drug affected at the time of the collision;
(2)was driving his vehicle within the permitted speed limit of 110 kilometres per hour;
(3)did not take evasive action or apply the brakes of his vehicle before the collision.
The applicant told a police officer at the scene:
I noticed two cars up ahead approximately 50 metres in front of me, and I couldn’t pull up in time. I wasn’t sure how fast they were going.
The applicant told another police officer at the scene:
I was driving in the left lane, towards home. Next thing I know is a car in front of me and I hit it.
The applicant told a paramedic who attended at the scene:
They were in the left hand lane and just pulled out. I went straight up the back. I had nowhere to go.
The co-accused told the ambulance officer at the scene:
I was pulling into the left side emergency lane. I was almost stopped. That car came up behind quick then pulled out … then put their right indicator on to pull out and, bang, that’s it.
The co-accused told a policeman at the scene that he slowed down and moved into the left hand emergency lane to answer his phone. His vehicle would have been nearly three quarters in the emergency lane. He saw a car behind him and then got hit.
The co-accused was interviewed by the police. In his record of interview, he referred to a conversation which, he said, he had had with the applicant at the scene. Thus:
He told me that he thought that she pulled out. I said, ‘Didn’t you see her indicating, mate, because I seen her indicating’, and I said, ‘Didn’t you see her stop? Didn’t you see her indicator?’ and he said, ‘Yeah, I’m pretty sure she pulled out’, and I said, ‘Well, I don’t know if she pulled out, but I know that her indicator was on cause that’s the last thing I’d seen pretty much before the impact’.
The case against the applicant was that he had been seriously inattentive. The prosecution relied upon the evidence of drivers whose vehicles had successfully negotiated the obstruction, and upon the evidence of a police expert as to reaction time and braking distances.
The applicant’s case, not that he carried any onus of proof, was that a vehicle travelling not far in front of his vehicle had obstructed his view. It had pulled out and avoided the obstruction. But he was left with insufficient time to take evasive action
Ground 1
Senior counsel for the co-accused, in her final address, referred to her client’s record of interview with the police. Counsel submitted that there was a consistency between (1) what the applicant had said to her client (see [17] above); and (2) what the applicant had said to the ambulance officer. The obvious purpose of the submission was to persuade the jury that her client, as he claimed, had stopped in the emergency lane; that the victims’ vehicle, after pulling up behind his vehicle, had pulled out; that it had then been struck by the applicant’s vehicle; and that his stopping in the emergency lane had not contributed to the accident.
Both before and after the submission just mentioned, counsel for the co-accused told the jury that what the applicant had allegedly said to her client was not evidence against the applicant in his trial. Nonetheless, counsel went book, line and verse into why the jury should conclude that the applicant had made admissions which were consistent with the collision being entirely his fault.
The evidence of what the applicant said to the ambulance officer admitted, arguably, of two possible meanings. First, that his mention of a vehicle ‘just pulling out’ was a reference to the motor vehicle which he said had blindsided his view of the victims’ vehicle;[3] and second, that he was referring to the victims’ vehicle. If it was the latter, it was well capable of telling against him on the issue of inattention. Either way, the evidence was admissible.
[3]Whilst his reference to ‘going straight up the back’ was, by contrast, a reference to the victims’ vehicle.
According to the co-accused’s account of his conversation with the applicant, there was no room for doubt that the applicant was referring to the victims’ vehicle pulling out. That account, which was inadmissible in the applicant’s trial, was inculpatory. The jury apparently found that the victims’ vehicle was stationary at the time of the collision, in the left hand running lane, positioned behind the co-accused’s vehicle. In that event, the applicant’s account of events, as described by the co-accused, bespoke confusion and, by inference, inattention at the pertinent time.
At the conclusion of the address of counsel for the co-accused, counsel for the applicant applied for the jury to be discharged. The judge was critical of what counsel for the co-accused had submitted. In argument, her Honour observed that counsel had been very specifically ‘trying to put the boots in’ to the applicant in what was a ‘cut-throat defence’; and that counsel had done so by inadmissibly attempting to link the applicant’s alleged statement to the co-accused with his statement to the ambulance officer.
Her Honour nonetheless rejected the application because, as she concluded, there was not a ‘high degree of necessity’ to discharge the jury.[4] The trial was at a late stage and any prejudice to the applicant, she considered, could be cured by a direction.
[4]See, for example, Crofts v R (1996) 186 CLR 427 and R v Halliday (2009) 23 VR 419.
After the application was refused, counsel for the applicant addressed the jury. He submitted that what I have described at [22] as the first possible meaning of what his client said to the ambulance officer was ‘plausible’. He did not comment upon the submission for the co-accused which had led to the discharge application.
Both closing addresses were made on Friday 20 September 2013. The judge charged the jury on Monday 23 September.
In giving a separate consideration direction, the judge said this:
Now in this trial, that applies to the record of interview conducted with Mr Dunkley-Price. That record of interview is only part of the evidence in relation to his case. The content of that record of interview including anything attributed by him to any conversation he had with Mr Stevenson is not admissible. It is inadmissible against Mr Stevenson.
You cannot use anything said by Mr Dunkley-Price in his record of interview when considering the evidence that relates to Mr Stevenson, you cannot do it. If you think about it, that is unfair if you did because Mr Stevenson was not there at the time the record of interview was conducted with Mr Dunkley-Price and therefore he did not have the chance to say that is not what I said, or that is not what happened or - you know did not have a chance to correct anything, if it needed correcting.
So it is very important that anything said by Mr Dunkley-Price in his record of interview is only relevant to him alone. In her closing address, Ms Randazzo made to [sic] a conversation between Mr Dunkley-Price and Mr Stevenson that was referred to by Mr Dunkley-Price in his record of interview. I direct you that that alleged conversation as described by Mr Dunkley-Price is not admissible against Mr Stevenson at all.
Mr Stevenson as I said was not present when Mr Dunkley-Price said those things to police. It would not only be unfair, but also wrong in law to attribute that discussion to Mr Stevenson, consistent with the directions that I have given to you about that.
In support of Ground 1, counsel submitted that the prejudice to the applicant of what senior counsel for the co-accused said in her closing address was incalculable. The jury was provided with a pathway of reasoning to which it should never have been exposed. Trial counsel for the applicant had been placed in an invidious position. To have commented upon the submission made for the co-accused ran the risk of highlighting it. Not to do so ran the risk that the jury would act upon it. Not until the charge, days later, did the judge address the matter. The balance of the trial was affected. Further, the lateness in the trial at the time when the issue arose, though relevant, was not decisive.
For the Crown, counsel submitted that only rarely will a miscarriage of justice result from the risk of a jury using evidence not admissible against one accused to corroborate the evidence of a prosecution witness. This was not that rare case. The judge’s separate consideration directions were clear and there was no reason to think that the jury disobeyed them. Further, the judge specifically referred to the impugned passage in the co-accused’s record of interview in her charge, and said that it could not be used against the applicant.
After the judge refused the discharge application, the jury found the applicant guilty. Ground 1 necessarily challenges the conviction, not the refusal to discharge.[5] A jury is assumed to obey instructions given it by a trial judge. Those matters, singly and in combination, tell against the applicant establishing a substantial miscarriage of justice.
[5]Maric v R (1978) 52 ALJR 631, 635; R vHalliday (2009) 23 VR 419, 437 [71].
But in my opinion it is reasonably arguable, in the circumstances, that such a miscarriage eventuated. The case against the applicant was one of inattention for a very few seconds whilst driving. It was said by the prosecution, in reliance upon the evidence of the expert police witness, and by reference to the success of others in avoiding collision with the stationary vehicle, that the applicant could successfully have taken evasive action had he been appropriately attentive. The applicant’s ‘case’ was that his clear vision had been obstructed by the vehicle travelling not far ahead of his vehicle. Any comment attributed to him which implied that he had not the faintest idea about what the victims’ vehicle was doing immediately before the collision was very damaging to his defence. What might be regarded as consistency between his alleged remarks to the co-accused and one meaning which could be given to his statement to the ambulance officer was arguably of very considerable importance in that connection. That meaning stood in contrast, I add, to his statements at the scene to the police officers.
In concluding that Ground 1 is reasonably arguable, I have not ignored several matters which I should now mention. Their possible significance requires full examination.
First, I think that counsel for the applicant, once the discharge application was refused, should have sought an immediate direction from the judge. But he made no such application. One consequence of him not seeking such a direction – although one cannot be confident the judge would have acceded to it – was that three days elapsed before the judge gave her charge. The prospect of the jury directing its mind along an impermissible path of reasoning which favoured guilt cannot simply be ignored. There is a question whether the judge’s charge was capable of remedying the problem which had been created and which had persisted without correction for some days.
Second, the judge’s separate consideration direction made it clear that what the applicant had allegedly said to the co-accused was not evidence against the applicant in his trial. But the direction did not address, squarely, the consistency argument which counsel for the co-accused had advanced. On the other hand, no redirection was sought by applicant’s counsel.
Ground 2
Counsel for the applicant submitted, in effect, that the jury was obliged to conclude that his client had been ‘blindsided’ by the vehicle travelling immediately in front of his vehicle. In consequence, the applicant had insufficient time to take evasive action. The ability of other drivers to avoid a collision was not instructive. Their respective forward vision had not been impaired. The applicant’s statement to the ambulance officer was consistent with his account that he had been blindsided. His statement to the policeman that he had seen the victim’s vehicle when it was 50 metres ahead of him fitted that hypothesis. So did his failure to take any evasive action.
It was submitted for the Crown that the jury was not precluded from returning a guilty verdict. Counsel argued that the jury was entitled to conclude that the applicant was not blindsided by the vehicle which was immediately ahead of him. He argued that the jury was able to act on the evidence of the police expert witness. He contended also that there was some evidence that the applicant’s vehicle had accelerated shortly before impact, and that this supported an inference of inattention. He referred also to the success of other drivers in avoiding collision, to the fact that the tail lights of the two stationary vehicles had been illuminated, and to evidence which left it open to the jury, he argued, to infer that the applicant was distracted by receiving and making calls on his mobile phone at times proximate to the happening of the collision.
In my opinion, this ground is not reasonably arguable. The test whether it can be established that a verdict was unsafe and unsatisfactory is a strict one. It stands distinct from a ground which argues that the jury arrived at its guilty verdict by an impermissible path of reasoning. So far as Ground 2 is concerned, it is enough to say that whilst, in my opinion, the verdict might be accounted harsh, it was not precluded on a consideration of all the evidence.
Orders
I grant the applicant leave to appeal against conviction on Ground 1, but refuse him leave to appeal against conviction on Ground 2.
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