Stocks v Johns (No 2)
[2019] VSC 854
•20 December 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 00516
| ROBERT STOCKS | Appellant |
| -and- | |
| SAMANTHA JOHNS | Respondent |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 2019 | |
DATE OF JUDGMENT: | 20 December 2019 | |
| DATE OF PUBLICATION OF DETAILED REASONS: | 27 December 2019 | |
CASE MAY BE CITED AS: | Stocks v Johns (No 2) | |
MEDIUM NEUTRAL CITATION: | [2019] VSC 854 | |
JUDGMENT APPEALED FROM: | Stocks v Johns [2019] VSC 584 (Clayton JR) | |
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APPEAL — PRACTICE AND PROCEDURE — Appeal (de novo) against judicial registrar’s order staying appellant’s civil action for damages for personal injury arising out of motor vehicle collision pending outcome of respondent’s application for leave to appeal to Court of Appeal against her criminal convictions for recklessly causing serious injury in circumstances of gross violence and criminal damage arising out of same collision — Appellant, now aged 70, very seriously injured and unable to work since collision in May 2014 — Criminal trial conducted in October 2018 and respondent sentenced in February 2019 — Civil action commenced in 2018 — Whether civil action should be stayed pending finalisation of criminal appeal and possible retrial — Whether refusal to stay civil proceeding would create risk of prejudice to respondent in criminal proceedings by way of risk of self-incrimination — Whether appellant’s interest in pursuing civil action should prevail — Whether in the interests of justice to stay civil proceeding — Appeal allowed — Stay lifted — Further application for stay may be brought if criminal appeal succeeds and retrial ordered.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr A T Broadfoot QC with Mr L B R Allan | Henry Carus + Associates |
| For the Respondent | Mr D J Wallis | DLA Piper |
HIS HONOUR:
Overview
On 14 November 2019, I heard an appeal against a judicial registrar’s order staying a civil action, brought by Robert Stocks against Samantha Johns, for damages for personal injury arising out of a motor vehicle collision.[1] The order was that the proceeding be stayed “pending the outcome” of Ms Johns’ application for leave to appeal to the Court of Appeal against her criminal convictions. Those convictions, for recklessly causing serious injury in circumstances of gross violence and criminal damage, were sustained in the County Court, and arose out of the same collision as gives rise to the civil action.
[1]Stocks v Johns [2019] VSC 584.
This appeal is brought pursuant to rule 84.05(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). Such an appeal is to be conducted by way of a hearing de novo.[2] In those circumstances, in order to succeed, Mr Stocks need not show any error in the judicial registrar’s reasons or even that her decision was wrong. Further, the parties agreed that it was for Ms Johns to persuade me to grant a stay, and not for Mr Stocks to persuade me that a stay should be refused.
[2]See rule 84.05(4) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
The material before me was more extensive than that which was before the judicial registrar. That additional material included transcript of Ms Johns’ record of interview with police following the collision, the recording of which was relied on at her criminal trial; transcript of her counsel’s final address at trial; her applications for leave to appeal against conviction and sentence and the accompanying written cases; and affidavits updating Mr Stocks’ condition and financial circumstances.
Having considered all of the material and the submissions of counsel on the appeal, I am not satisfied that the interests of justice require that there should be a stay of the civil action pending the outcome of the application for leave to appeal against conviction. On the contrary, I think that, on balance, the interests of justice require the civil action to take its course.
Accordingly, I would allow the appeal, set aside the judicial registrar’s order and thereby lift the stay.
On 20 December 2019, I made orders in this appeal (including directing the parties to engage in judicial mediation and as to costs) and gave a summary of my reasons for decision. I said I would provide detailed written reasons at a later time. These are those reasons.
Criminal trial and sentence
The collision
At about 5:30 p.m. on 23 May 2014, the right-hand side of a blue Camry sedan driven by Ms Johns collided with the right-hand front wheel of a truck driven by Mr Stocks on the Wimmera Highway about 17 kilometres east of Edenhope. The truck rolled over at least once. Mr Stocks suffered serious injuries. He spent a long time convalescing in hospital and has not worked since. Ms Johns sustained only minor injuries.
Charges, trial and verdicts
Over two years later, in July 2016, Ms Johns was charged with criminal offences arising out of the collision. At her trial by jury in the County Court, which ultimately did not commence for another two years or so (in particular, in October 2018),[3] Ms Johns was found not guilty of intentionally causing serious injury to Mr Stocks in circumstances of gross violence[4] but guilty of the alternative offence of recklessly causing him serious injury in circumstances of gross violence[5] and of intentionally damaging the truck he was driving.[6] No verdict was taken on the further alternative offence of negligently causing serious injury.[7] Ms Johns was taken into custody following the verdicts and has remained there ever since.
[3]An earlier trial was commenced in October 2017 but was aborted because Mr Stocks was so unwell or afflicted, as a consequence of his injuries, that he was unable to give evidence. Ultimately, his evidence was pre-recorded for the second trial, in October 2018. (See DPP v Johns [2019] VCC 131 at [2]-[4].)
[4]Contrary to s 15A of the Crimes Act 1958 (Vic).
[5]Contrary to s 15B of the Crimes Act 1958 (Vic).
[6]Contrary to s 197 of the Crimes Act 1958 (Vic). The truck belonged to Mr Stocks’ employer.
[7]Contrary to s 24 of the Crimes Act 1958 (Vic).
Sentence
On 8 February 2019, Judge Ryan, who had presided over the trial, sentenced Ms Johns to a total effective sentence of seven years’ imprisonment with a non-parole period of five years.[8] His Honour declared 114 days of pre-sentence detention as already served under the sentence.[9] Thus, as things presently stand, Ms Johns would not become eligible for parole until about October 2023.
[8]DPP v Johns [2019] VCC 131 at [43]-[47].
[9]DPP v Johns [2019] VCC 131 at [48].
Evidence and findings at trial/on sentence
At the time of the collision, Mr Stocks, who was then aged 65, lived in Naracoorte and worked as an interstate truck driver for Gericke Transport. He had worked for that business for 15 years. Ms Johns, who was then aged 41, was living in Murray Bridge, but would travel to Naracoorte for her work in aged care. She often stayed overnight with Mr Stocks at his home, as they had been in a relationship since about 2011 or 2012.[10]
[10]DPP v Johns [2019] VCC 131 at [5]-[6].
At trial, however, there was evidence that the relationship was in the throes of breaking down, or that it had disintegrated, in the lead-up to the collision. In his reasons for sentence, Judge Ryan indicated that he accepted that Ms Johns’ affection for Mr Stocks was not reciprocated, and that he (Mr Stocks) considered the relationship only a sexual one, which caused her great hurt and frustration. His Honour found that Ms Johns had made threats to Mr Stocks and his daughter, including: “I’ll take you out. I’ll wait until you’ve got a load of petrol and I’ll take you out”; “I’ll take you out and will kill you”; and, “If I can’t have you [or him] no one will.”[11]
[11]DPP v Johns [2019] VCC 131 at [9].
The judge also found that Ms Johns was known to have followed Mr Stocks’ truck as he was going about his work. On the day before the collision, she had followed him to Melbourne, and waited overnight for him at a truck stop near Rockbank. As Mr Stocks passed by the next day, his Honour found, Ms Johns followed him on his trip back to Naracoorte. She overtook his truck and, at some time soon before the collision, did a U-turn and headed back east towards Horsham along the highway. She approached Mr Stocks while he was stopped at a parking bay, threw his garage controller at him, told him she was pregnant to him, threatened to kill him and then sped away west, towards Naracoorte.[12]
[12]DPP v Johns [2019] VCC 131 at [10]-[11].
Mr Stocks resumed his trip west. At what must have been about 5:30 p.m., he saw two vehicles coming towards him. The first was a police vehicle driven by S/C Darren Ferluga. The second was Ms Johns’ blue Camry.[13]
[13]DPP v Johns [2019] VCC 131 at [12].
Against that background, it was the prosecution case, which appears to have been accepted by the jury, and the judge, that Ms Johns then intentionally drove her car onto the wrong side of the road and into the path of the oncoming truck that Mr Stocks was driving, and that she did so with the intention of colliding with the truck and so causing it damage, while foreseeing the probability that, by her deliberate action, she would cause serious injury to Mr Stocks.[14]
[14]DPP v Johns [2019] VCC 131 at [7]. These findings might be thought to be consistent with proof of the elements of the two offences of which Ms Johns was found guilty.
Ms Johns’ Camry was extensively damaged. The front right wheel and suspension were missing, and the driver’s side panels and doors had been peeled away from the vehicle. The semi-trailer towed by Mr Stocks was on its side. The prime mover was on its wheels but was badly damaged, including the fact that the tyre from its front right steering wheel was missing.[15]
[15]DPP v Johns [2019] VCC 131 at [13].
Ms Johns suffered only minor injuries, which the judge found to be “miraculous”. As I said earlier, Mr Stocks sustained severe injuries, lost his job as a truck driver and no longer works.[16]
[16]DPP v Johns [2019] VCC 131 at [3]-[4], [14] & [16].
Interview with police
Ms Johns was interviewed by police at Horsham in the early hours of the morning after the collision. As I mentioned previously, I understand that a recording of that interview was before the jury (although I do not know whether it was edited in any way). Among other things, transcript of the interview was placed before me on this appeal. The following things may be noted:
(a)Ms Johns denied that she had been following Mr Stocks in the days leading up to the collision. On the other hand, she admitted that she had followed him to Melbourne and back.
(b)Ms Johns admitted that she was involved in the collision but said that she did not know, and could not remember, how it happened.
(c)She said she believed she was doing 100 kph prior to the collision. She denied that she was doing 140 kph (which was the approximate speed at which the speedometer needle in her car was fixed when examined after the collision).
(d)She said was heading to Dimboola, via Horsham, at the time of the collision, as she was intending to see relatives there.
(e)She denied deliberately swerving onto the wrong side of the road.
(f)She denied any intention to “have a crash with him” or “deliberately try[ing] [to] run into [him]”.
(g)She suffered an injury to her ankle and a bump on the head.
(h)She denied braking in front of Mr Stocks in an erratic fashion at an earlier time.
Clearly enough, the jury’s verdicts imply that they must have rejected, beyond reasonable doubt, Ms Johns’ denials of deliberately swerving onto the wrong side of the road or of having any intention to “have a crash with him” or of “deliberately try[ing] [to] run into [him]”.
Counsel’s final address
While I was not given transcript of the whole trial, as I have said, I was given transcript of defence counsel’s closing address to the jury.
Counsel focussed on what he submitted was an absence of the necessary mens rea, whether it be an intention to crash into the truck or an intention to cause (or being reckless or negligent as to causing) Mr Stocks serious harm. He submitted that it was implausible that a “single mother would drive her Camry into a 45-tonne Mack truck [with a bull bar] with the intent to cause serious injury … [because a] Camry should have no chance against the truck”.[17] Counsel made similar points with respect to recklessness and negligence.[18]
[17]T 247 (16/10/18).
[18]See, for example, T 250, 254 & 257 (16/10/18).
As to the point of impact between the vehicles, among other things, counsel said this:[19]
[19]T 268-269 (16/10/18) (my emphasis).
This point of impact. If you accept that the collision was on the wrong side of the road, that’s one thing. Perhaps the dispute here is not so much the what but the how. …
The prosecution case is … that [Ms] Johns intentionally drove there, and this is based on the evidence of Robert Stocks. And you can’t look at this piece of evidence, this point of impact, in isolation from the alleged threats to support an inference of intent.
…
Without those threats, you really struggle to have any intent by [Ms] Johns to drive at [Mr] Stocks. What was her car doing on the wrong side of the road? …
We know that [Mr] Stocks was distracted by this first car that went past. We know that he’s just been told, if not that day, then the day before, by [Ms] Johns that she was pregnant. There was, I would suggest, a lot going through his mind at that time …
…
So you can’t just look at the point of impact in isolation to establish intent. It’s a physical piece of evidence. You need to have the mental component of it too.
Later in his address, counsel turned to what he submitted was an absence of analysis or reconstruction of the collision:[20]
No analysis or reconstruction of the collision has been carried out. Major Collision Investigation Unit does these. They didn’t attend the collision. The reconstruction might have put blame one way or the another. We just don’t know. It wasn’t done. And it’s not good enough that this technical evidence isn’t here, and that instead you’re being asked to rely upon these two sketches by Leading Senior Constable Perry, with all respect to him. He’s not a reconstructionist.
[20]T 272 (16/10/18) (my emphasis).
I shall return to these issues later, as they featured among the submissions on the appeal before me.
Application for leave to appeal conviction and sentence
On or about 14 March 2019, Ms Johns filed with the Court of Appeal applications for leave to appeal against her conviction and sentence and accompanying written cases.
Ms Johns’ grounds of appeal against conviction challenge, first, the trial judge’s ruling as to the admissibility of the evidence of the police officer who attended the scene in the aftermath of the collision and, secondly, the safety of guilty verdicts on the issue of the required mens rea for each offence.
The first of those grounds, if successful, may impact on the evidence concerning on which side of the road the vehicles collided. On the other hand, the evidence of physical observations and photographs, shorn of any opinion, would not be likely to be impacted.
At the time of the hearing of this appeal, those applications had not been listed for hearing in the Court of Appeal. As I understood it, it was accepted by the parties that the matter was unlikely to be listed until at least the second term in 2020.
I was not asked to make any assessment of the prospects of Ms Johns’ proposed appeal against conviction. And I make none.
Civil proceedings
In 2018, Mr Stocks issued civil proceedings against Ms Johns in this Court for damages for pain and suffering and economic loss. The particulars of injury alleged in the statement of claim include injury to the head, injury to the cervical spine, a C2 fracture, loss of hearing, dizziness, tinnitus, bilateral shoulder injuries, cognitive impairment, post-traumatic stress disorder and depression.
Mr Stocks alleges that his injuries were caused by the negligence of Ms Johns in the driving, management and/or control of her vehicle. He alleges that Ms Johns travelled at excessive speed, drove her vehicle on the wrong side of the road, deliberately attempted to collide with his vehicle, attempted to force his vehicle off the road, drove in a reckless manner, drove in a dangerous manner and failed to comply with the relevant road safety legislation and the regulations made thereunder.
Ms Johns has not filed a defence in the civil action.
By consent, the parties sought and obtained orders on 5 October 2018 setting a timetable, including orders for discovery, interrogatories, exchange of evidence and a trial date. The first step in that timetable was not to occur until January 2019. At the time that that timetable was made by consent, Ms Johns’ criminal trial was fixed for hearing in the County Court circuit in October 2018. Her trial proceeded in that circuit and concluded with her conviction on 18 October 2018. Had she not sought to appeal her conviction, she would have been in a position to proceed with her defence in the civil action.
However, after sentencing in February 2019, Ms Johns elected to pursue her rights on appeal.
As a result, she sought a stay of the civil proceedings until after the determination of her appeal and, if successful, her re-trial in the County Court.
As I have said, the judicial registrar granted the application and ordered a stay.
Given that this appeal is by way of a hearing de novo, it is unnecessary to set out the judicial registrar’s reasons for her decision.[21]
[21]Stocks v Johns [2019] VSC 584.
Submissions
Appellant’s submissions
Mr Broadfoot QC, who appeared with Mr Allan for Mr Stocks on the appeal, accepted that it is appropriate to stay civil proceedings pending extant related criminal proceedings where the interests of justice require it. That test entails a balancing of the prejudice to and interests of the plaintiff, who is ordinarily required to have his or her case heard without delay, and any prejudice to and interests of the defendant, particularly with respect to the issue of possible self-incrimination vis-à-vis the criminal matter.
He submitted that, in the present case, the most telling factors against a stay concern the reality that the trial has already been run and concluded with convictions. He pointed to what he termed subsidiary factors related to that submission:
(a)First, the convictions are not provisional. The fact that Ms Johns has exercised her right to apply for leave to appeal does not deny the fact that those convictions are valid unless and until set aside on appeal.
(b)Second, neither the appellant nor the respondent’s lawyers could find a single case where a stay of civil proceedings had been ordered on the basis of a pending related criminal appeal where the trial had already concluded.
(c)Third, because Ms Johns has already informed the prosecution of her defence in the criminal proceeding, the rationale for staying the civil action (namely, that the civil action acts as a ‘dress rehearsal’ for the criminal trial) either evaporates or is of much less force.
(d)Finally, while she did not give evidence at trial, soon after the accident, Ms Johns chose not to exercise her right to silence and instead answered the numerous questions asked of her by police in a formal interview. As we have seen, that interview was played at her trial. It contained both admissions and protestations of innocence. Thus, again, the rationale for staying the civil action is even further diminished.
Secondly, Mr Broadfoot submitted, in the alternative, that any prejudice to Ms Johns in proceeding with the civil action is no more than potential or notional, and is outweighed by the prejudice to Mr Stocks in delaying the matter.
In particular, he submitted that nothing in the material lodged on behalf of Ms Johns on the appeal explained why having to file a defence or otherwise defend the civil action would cause any prejudice to her. For example, she did not suggest that there was something that had been withheld in her police interview that might be disclosed in the civil action. Her defence, as reflected in counsel’s final address at trial, was really to put the prosecution to its proof as to which side of the road the accident occurred and to argue positively about a lack of the requisite mens rea. Thus he submitted, since the defence was well and truly telegraphed at trial, there could be no prejudice to Ms Johns, in the civil action, in simply not admitting whether she was on the wrong side of the road and denying the requisite intention or negligence.
Equally, in his submission, if the matter were either to settle on confidential terms on liability and just proceed as an assessment of damages, or to settle holus-bolus on confidential terms, each of which outcomes would be commonplace, there could be no realistic prospect that Ms Johns’ prosecution of her proposed appeal or defence at any possible retrial would be prejudiced.
Yet the prejudice to Mr Stocks is plain. He is aged 70. The collision occurred in May 2014. The criminal proceedings were delayed. Mr Stocks has suffered serious injuries of a permanent nature, is in pain and is unable to work. His condition is progressively deteriorating. He is now at the point of needing to rely on his former partner to assist him with the activities of daily living, such as cooking, cleaning, general housekeeping and monitoring of his numerous different medications.
He is also in difficult financial circumstances. His entitlements to workers compensation payments were redeemed, and he received a lump sum of $15,000 in March 2016. He is now on Centrelink benefits of $450 per fortnight and owes over $140,000 on his mortgages and about $25,000 on a line of credit. As a result, he is heavily reliant on financial assistance from his brother.
Mr Stocks’ psychological condition is also deteriorating as a result of a combination of his financial woes (including the prospect of having to sell his home) and the uncertainty and delay concerning the civil proceedings.
In Mr Broadfoot’s submission, the foregoing matters compel the view that the interests of justice favour allowing the appeal, dismissing the stay application and allowing the civil action to take its usual course.
He also accepted, however, that, if the Court of Appeal set aside the convictions and directed a retrial, Ms Johns would be entitled to bring a further application to stay the matter pending the completing of that retrial.
Respondent’s submissions
Mr Wallis, who appeared for Ms Johns on the appeal, submitted that his client would suffer severe prejudice to her right to silence, and thereby compromise the defence of her criminal proceedings, if the stay were lifted.
Mr Wallis accepted that his client’s position on the stay would be stronger if there had not been a concluded trial. Nevertheless, he submitted that the certainty that there is an application for leave to appeal lodged, coupled with the possibility that there might be a retrial, was enough to engage the principles concerning the staying of a civil action pending resolution of a pending criminal matter.
He pointed to the fact that both the civil and criminal matters arise out of the same collision and raise essentially the same factual disputes. As I understood his submission, it followed that, in so far as the civil action and its pleading process would involve disclosing Ms Johns’ account on matters not the subject of admission or concession at the criminal trial already completed, his client’s defence of any future retrial would (or at least could) be compromised.
While Mr Wallis accepted that Ms Johns did make admissions and give an account in her police interview, he also pointed out that she did not give evidence at the criminal trial, which, if that course were taken in the civil action, might turn out to be different from the interview in one respect or another. Yet engaging in pleadings in the civil action — whether by filing a defence or answering interrogatories or the like — would risk undermining her right to silence vis-à-vis her criminal proceedings at least in as much as she has not given evidence previously.
Mr Wallis submitted that, while Mr Broadfoot makes the criticism that nothing has been put forward to explain just how it is that Ms Johns’ defence might be compromised, it is impossible to do so without defeating the purpose of the right to silence in the first place.
As Mr Wallis rightly pointed out, filing a defence or other aspects of the pleadings would require Ms Johns’ lawyers to provide a ‘proper basis certification’ pursuant to the provisions of the Civil Procedure Act 2010 (Vic). He submitted that, if Ms Johns were to deny liability, that would create a difficulty, because it would be inconsistent with the criminal convictions of which her solicitors are aware. Equally, he submitted, the solicitors could not admit liability in a setting where Ms Johns has given instructions to pursue an appeal alleging a miscarriage of justice and not conceding that she was reckless or that she crossed onto the other side of the road. He submitted that even a mere non-admission is also arguably inconsistent with the convictions.
Mr Wallis also submitted that Ms Johns would face another dilemma in deciding whether or not to give evidence in the civil action. If she were to do so, she may reveal matters that go to the criminal dispute as well, and thereby undermine her right to silence. If she were to decline to give evidence in order to avoid that consequence, then her defence of the civil action may also be compromised. Even if she were to give evidence with the protection of a certificate under s 128 of the Evidence Act 2008 (Vic), such that that evidence could not be used directly against her in any retrial, the knowledge gained by others of what she had said may well compromise her possible future criminal trial.
Mr Wallis also alluded to uncharged allegations that were mentioned at the criminal trial that might well surface in cross-examination if she were to give evidence at the civil action, which were not the subject of any verdict.
In Mr Wallis’s submission, Ms Johns ought to be able to participate in the civil action free of the constraint of having an eye to her criminal proceedings as well, and that that can be achieved only if the civil action remains stayed pending the resolution of the criminal matters.
For the purposes of this application, Mr Wallis did not dispute the force of Mr Stocks’ position in terms of injury and difficult financial and living circumstances. However, he also pointed to the significance of the fact that Ms Johns is serving a sentence of seven years’ imprisonment.
Possible resolution raised but ultimately failed
During the hearing of the appeal, the parties agreed to adjourn the matter and take instructions in the interim on whether the appeal might resolve. Initially, there seemed to be some prospect that the matter would resolve on the day of the hearing. Later, however, it was thought preferable to adjourn the matter for more careful consideration to occur. In the end, however, sometime after the adjournment, the parties advised that the appeal had not resolved and that my decision on the appeal was required.
Authorities
I turn now to the applicable law.
Counsel for each party helpfully referred me to several authorities on the topic. They included McMahon v Gould (“McMahon”); Philippine Airlines v Goldair (Aust.) Pty Ltd & Ors; Yuill v Spedley Securities Ltd (in liq) (“Yuill”); DPP (Cth) v Jo; Lee v NSW Crime Commission; Zhao & Anor v The Commissioner of the Australia Federal Police (“Zhao – COA”); Flegg v Hallett; Commissioner of the Australian Federal Police v Zhao & Anor (“Zhao – High Court”); and Crespin v Francis & Anor (“Crespin”).[22]
[22]McMahon v Gould (1982) 7 ACLR 202; Philippine Airlines v Goldair (Aust.) Pty Ltd & Ors [1990] VR 385; Yuill v Spedley Securities Ltd (in liq) (1992) 8 ACSR 272; DPP (Cth) v Jo (2007) 176 A Crim R 17; Lee v NSW Crime Commission (2009) 75 NSWLR 581; Zhao & Anor v The Commissioner of the Australia Federal Police (2014) 43 VR 187; Flegg v Hallett [2015] 1 Qd R 191; Commissioner of the Australian Federal Police v Zhao & Anor (2015) 255 CLR 46; and Crespin v Francis & Anor [2016] VSC 277.
In the last case in that chronological line, Crespin, in the course of considering the leading cases on the matter (including McMahon, Yuill and Zhao, in both the Court of Appeal and the High Court), J Forrest J summarised “the principles relevant to concurrent civil and criminal proceedings” in the following way:[23]
[23]Crespin v Francis & Anor [2016] VSC 277 at [22]-[27] (footnotes omitted).
[22] In a general sense and, subject to one important qualification, the guidelines set out by Wooten J in McMahon … describe the manner in which an application such as this is to be determined. [His Honour then set out those guidelines.] …
[23] The qualification is significant. It is that, as was recognised by the Court of Appeal in Zhao, and impliedly on the appeal in the High Court, the McMahon guidelines arguably failed to account sufficient primacy to the accused’s right to a manifestly fair criminal trial.
…
[25] On appeal in Zhao, the High Court reaffirmed the principle that there must not merely be a link between the civil and criminal conduct, rather, the accused must demonstrate there is a real risk of prejudice. …
[26] In my opinion, the High Court and the Court of Appeal have made it clear that where a civil proceeding creates a real risk of prejudice to the defence for the criminal charges — which I infer to be one that is not fanciful or remote — then the applicant should, absent a dominant contradictory consideration, be entitled to a stay of the proceeding.
[27] Moreover, both decisions demonstrate that there should be a focus in an application such as this on the risk of prejudice (and whether it is real) to the accused in the criminal trial in determining whether to grant a stay or not.
His Honour’s approach, with which I respectfully agree, is also consistent with what I understood the parties took to be the applicable law on the topic.
Discussion
I turn now to my reasons for concluding that the appeal should be allowed.
Several matters, in combination, have driven me to that position. Broadly, in my opinion, these matters show, on the one hand, that the risks of prejudice to Ms Johns’ legitimate interests in protecting her right to silence in the criminal proceedings and preserving her associated privilege against self-incrimination are not as great as they might seem and, on the other, that the prejudice to Mr Stocks in delaying his civil action is quite significant. Further, they show that the interests of justice require that the civil action should be allowed to take its usual course, at least for the moment. Let me turn to some of those matters.
First, Ms Johns has already been convicted after a trial. Thus, as things stand, unless and until her convictions are set aside and a retrial is ordered, there is no meaningful sense in which participating in the civil action can incriminate her. While it may be theoretically possible that admissions made in defending the civil action could be used by the Director of Public Prosecutions to argue that the appeal against conviction should fail, that prospect strikes me as fanciful. Of course, it would be different if Ms Johns were still awaiting trial or, perhaps, a retrial, which I’ll return to shortly.
Secondly, as we have seen, in the hours soon after the collision, Ms Johns put a version of events to police in an interview, including some admissions. As I have said, that interview was led in evidence at the trial. In essence, Ms Johns admitted the collision, but said that she did not know how the collision occurred and denied that she intentionally collided with Mr Stocks’ truck. While it is perhaps a little unclear as to whether Ms Johns’ counsel, in his final address, conceded, contested or just left vague the question of whether the collision occurred on Mr Stocks’ side of the road (as asserted by the Crown), there was evidence from a police officer who described the aftermath at the scene in a way that suggested the collision did occur on Mr Stocks’ side of the road. While it would be a matter for Mr Stocks as to what evidence he might seek to lead or elicit in the civil action, it seems to me that Ms Johns’ admissions (which are admissible in the hands of Mr Stocks), when considered against the other available evidence, are very likely to be sufficient to make out a case against her in negligence in any event. Thus, if Ms Johns were to maintain the stance taken in her police interview in defending the civil action, she would not be incriminating herself any more than she has already.
Thirdly, in those circumstances, it strikes me as highly probable that the statutory insurer, who enjoys a right of subrogation, would not contest liability in any event and that the matter would proceed instead on an assessment of damages. Indeed, I should have thought it would be very likely that the matter would settle, as many such cases do. A settlement could be reached without a formal admission of liability and could be kept confidential. The prospect that such a settlement could come out in evidence before a jury is extremely remote in circumstances where the settlement would not have any probative value in a criminal case. In fact, I would go as far as to say that that prospect would be fanciful.
Fourthly, I do not accept Ms Johns’ submission to the effect that, should the civil proceeding not be stayed, she would be forced to choose between defending the civil claim, thereby allowing a sort of ‘dress rehearsal’ for the Crown in any possible retrial and potentially compromising her criminal defence, and maintaining her right to silence and leaving the civil claim undefended. There are three reasons.
(a)First, as I mentioned a moment ago, given what she has already told the police, to run a similar defence to the civil claim could not amount to self-incrimination, because she would be saying no more than is already available to be used against her.
(b)Secondly, and in any event, Ms Johns could make it clear that she claims the privilege against self-incrimination in anything she says in defence of the civil proceedings. I cannot imagine that any judge of this Court would refuse Ms Johns a certificate, pursuant to s 128 of the Evidence Act, whenever it might be available, whether in viva voce evidence or in answering interrogatories or engaging in other pre-trial steps.
(c)Finally, even if such a certificate were not available, other than in the rarest of circumstances (such as, for example, if she turned around and denied being the driver of the Camry), I cannot imagine any judge of the County Court considering it fair or appropriate to allow such evidence to be admitted in a retrial when Ms Johns was effectively compelled to go into evidence in some fashion to defend the claim against her.
Fifthly, I reject the submission to the effect that, if Ms Johns were required to file a defence in these proceedings, her solicitors would potentially be placed in a difficult position in respect of their obligations under the Civil Procedure Act, in that they would be required to confirm that there was a proper basis for each pleading, which might include a denial or non-admission, in relation to allegations about which the jury had made findings of guilt. If the solicitors’ instructions turn out to be different from allegations about which the jury have made findings of guilt, then so be it. Given that Ms Johns is seeking leave to appeal her convictions and the present bases for that appeal, she is necessarily challenging certain matters decided against her by the jury. It is a matter for the solicitors’ judgment as to whether they have complied with the relevant obligations.
Finally, in so far as there were uncharged allegations made in the criminal trial, and therefore there are no existing verdicts concerning those allegations, again, I do not think that engaging in the civil action creates a real risk of prejudice to Ms Johns. The uncharged allegations included other dangerous driving behaviour, threats and stalking. It is true that, unlike the situation that obtains with respect to the charged allegations, there are no verdicts in respect of which it can be said that there is no longer any basis for self-incrimination in respect of the uncharged allegations. That said, a trial having been conducted in which those uncharged allegations were relied on by the prosecution as part of the proof of motive and/or animus that led to the charged behaviour, at which trial verdicts were returned, in my view, it would be unthinkable — indeed, fanciful — that the police or the Director of Public Prosecutions (of either Victoria or South Australia) would seek to lay or prosecute charges based on that previously uncharged behaviour. Even if, contrary to common sense and decency, such charges were in fact laid, Ms Johns would have an extremely powerful argument that to persist with such a prosecution would be an abuse of process. Thus, again, I can see no real risk of prejudice to Ms Johns on this basis, were the civil action to resume. In any event, if these matters were raised by the plaintiff in civil proceedings (whether in pre-trial steps or in cross-examination at trial, were she to give evidence), then, to the extent that she has not already made admissions in her police interview, Ms Johns could invoke her privilege against self-incrimination and obtain a certificate pursuant to s 128 of the Evidence Act.
Turning now to the prejudice to Mr Stocks in staying the civil action, I think there are important interrelated matters to consider. First, it is now over five-and-a-half years since the collision and the injury and suffering it has caused Mr Stocks. That is a substantial delay and time is getting away.
Secondly, the material before me indicates that Mr Stocks is in a parlous state. He was very seriously injured, is in pain and is unable to work. He is now 70 years of age and is, to some extent, having to rely on family to support him. He appears to be at risk of losing his home. In those circumstances, any further delay in the civil action is particularly stressful.
For all of these reasons, I think that the interests of justice require that Mr Stocks’ civil action should be allowed to proceed.
Of course, if the application for leave to appeal against conviction succeeded and a retrial were ordered, then it may be appropriate to revisit the question of a possible temporary stay at that time.
Orders
Accordingly, I shall order that the appeal be allowed and that the order made by the judicial registrar staying the civil action be set aside.
(As indicated earlier, I went on to direct that the parties are to engage in judicial mediation. I also made orders for costs in favour of Mr Stocks.)
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