Wong v R - [2009] NSWCCA 101

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: Wong v R [2009] NSWCCA 101

HEARING DATE(S): 16 December 2008

JUDGMENT DATE:
15 April 2009

JUDGMENT OF: Campbell JA at 1; Grove J at 151; Howie J at 152

DECISION: 1. Quash the conviction of the appellant on the charge of driving in a manner dangerous causing death.
2. There be a new trial.

CATCHWORDS: CRIMINAL LAW – evidence – admission of new evidence on appeal – whether or not it was open for the jury to be satisfied beyond reasonable doubt that the accused was guilty when new evidence contracted the testimony of one eyewitness – whether contradictory witness testimony raises reasonable doubt that the accused was not guilty – whether new evidence is likely to lead to acquittal or a significant possibility of acquittal - CRIMINAL LAW – trial – direction to the jury – failure by trial judge to put the defence case to the jury – whether trial judge is required to put case to the jury in light of section 161 Criminal Procedure Act 1986 – distinction between obligation to summarise evidence and obligation to put the defence case to the jury - CRIMINAL LAW – trial – Rule 4 Criminal Appeal Rules – whether leave should be granted by the Court when no objection to the trial judge’s summing up was taken at trial – whether a failure to put the defence case to the jury is such a departure from the essential requirements of the law that it goes to the root of the proceedings - CRIMINAL LAW – appeal and new trial – whether an order for retrial should be made when the accused has served approximately one quarter of the total head sentence, and less than half the non-parole period

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Appeal Rules
Criminal Procedure Act 1986
Criminal Procedure Legislation (Amendment) Act 1990

CATEGORY: Principal judgment

CASES CITED: Alford v Magee (1952) 85 CLR 437
Cleland v The Queen (1982) 151 CLR 1
Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467
Kim Williams v R [1999] NSWCCA 9; (1999) 104 A Crim R 260
M v The Queen (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
R Katsidis; Ex parte AG (Qld) [2005] QCA 229
R v Abbas [2006] NSWCCA 331
R v Bikic [2002] NSWCCA 227
R v Meher [2004] NSWCCA 355
R v Zorad (1990) 19 NSWLR 91
Ratten v R (1974) 131 CLR 510
RPS v R [2000] HCA 3; (2000) 199 CLR 620
Ward v R (1996) 88 A Crim R 159

PARTIES: Thomas See Yue Wong (Applicant)
The Crown

FILE NUMBER(S): CCA 2008/486

COUNSEL: SJ Odgers SC (Appellant)
D Arnott SC (Crown)

SOLICITORS: Legal Aid Commission (Appellant)
Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0281

LOWER COURT JUDICIAL OFFICER: Williams DCJ

LOWER COURT DATE OF DECISION: 15/1/08

CCA 2008/486

CAMPBELL JA
GROVE J
HOWIE J
15 April 2009

Thomas See Yue WONG v The Queen

Judgment

1 CAMPBELL JA: On 31 October 2007 a jury found the Appellant guilty of a charge of driving a vehicle in a manner dangerous to another person or persons resulting in death. The incident from which the charge arose happened at about 3:15pm on 29 August 2006 when a black BMW sports car driven by the Appellant collided with a red Mazda MX 6 driven by Ms Kate Dodd. The collision occurred when Ms Dodd, who had been travelling north along Pennant Hills Road, West Pennant Hills was in the process of making a right-hand turn to go into Copeland Road, West Pennant Hills. The Appellant was driving south on Pennant Hills Road at the time, and collided with Ms Dodd’s vehicle as it turned. Ms Dodd was killed instantly, or virtually instantly.

2 The weather at the time of the collision was fine and dry. The road itself was dry and in good condition.

3 The Appellant appeals against his conviction. He relies on three grounds. The first relates to whether the jury’s verdict was justified by the evidence. The second alleges that the trial miscarried because the trial judge failed properly to put the defence case to the jury. The third is that a miscarriage of justice resulted from the absence of certain evidence relating to the manner in which traffic lights at the intersection operated.

Configuration of the Intersection

4 At the site of the accident, Pennant Hills Road runs in a north-south direction. From the intersection Copeland Road leads off in an easterly direction, while Eaton Road leads off in a westerly direction.

5 Pennant Hills Road carries traffic travelling in a northerly direction, and also traffic travelling in a southerly direction.

6 In Pennant Hills Road on both the northern side and the southern side of the intersection a wide raised concrete median strip in the centre of the road separates the northbound lanes from the southbound lanes. As one approaches the intersection travelling north on Pennant Hills Road there are three lanes for through traffic. There is also, as one nears the intersection, a fourth lane closest to the centre of the road formed by reducing the width of the median strip, which acts as a turning lane for vehicles wanting to turn right into Copeland Road. The evidence referred to these lanes by consecutive numbers going out from the kerb, so that the lane closest to the kerb was lane one, and the through-lane closest to the median strip was lane three.

7 As one approaches the intersection travelling south on Pennant Hills Road, one negotiates a slight left curve and goes down a slight hill. Aiken Road intersects with Pennant Hills Road on its westerly side, at an intersection that is itself controlled by traffic lights. The intersection with Copeland Road and Eaton Road is the next intersection to the south.

8 At the intersection, there are three lanes for southbound through traffic, and no separate turning lane into Eaton Road. Those lanes were also identified in the evidence by numbers, with lane one being closest to the kerb and lane three closest to the median strip.

9 Copeland Road near the intersection has two lanes heading west. Eaton Road near the intersection has two lanes heading east.

10 The passage of traffic in all directions through the intersection is controlled by traffic lights.

11 At the boundaries of the intersection there are pedestrian crossings with walk/don’t walk indicators across Copeland Road, across Eaton Road, and across Pennant Hills Road at the northern boundary of the intersection. There is no pedestrian crossing over Pennant Hills Road at the southern boundary of the intersection.

12 On the median strip in Pennant Hills Road, north of the intersection, is a sign that faces the traffic heading south. It has a picture of traffic lights on it, underneath which is written “prepare to stop”. On top of that sign are two yellow lights that are activated and start flashing alternately as soon as the traffic lights at the intersection of Pennant Hills Road and Copeland Road go to yellow or red for southbound traffic. When the southbound traffic light goes to green the warning signs stop flashing. Somewhat closer to the intersection, on the left-hand kerb, is a sign saying “red light camera ahead”. There is a “no right turn” sign facing the southbound traffic, so it is not permitted for southbound traffic to turn right from Pennant Hills Road into Eaton Road.

13 The only element of the offence that was in dispute at the trial was whether the Appellant was driving the vehicle in a manner dangerous to another person or persons. The Crown case was that this element of the offence was satisfied because the Appellant was driving at a speed that was excessive in the circumstances and entered the intersection after failing to stop at a red light. The trial proceeded on the basis that the jury would be justified in convicting only if it found both that he was driving at an excessive speed and also that he had gone through a red light. In that forensic context evidence about the sequence in which the lights were programmed to operate, and about what various eyewitnesses observed concerning the lights at the intersection, assumed particular importance.

The Sequencing of the Traffic Lights

14 The traffic lights that face northbound traffic on Pennant Hills Road contain two banks of red, orange and green lights. Each of the lights in one of those banks illuminates a circle. Each of the lights in the other bank illuminates a right-turn arrow.

15 Mr Adrian Paul, the officer of the Roads and Traffic Authority (“RTA”) who is responsible for the operation of about 2,000 sets of traffic lights around Sydney, gave evidence about the sequence in which the traffic lights were programmed to operate on the day of the accident. The accuracy of his evidence was not questioned. Through him, an internal document of the RTA that set out in detail the configuration of the intersection and its approaches, and the phasing of the lights, was tendered.

16 There are four phases in which the traffic lights controlling the intersection can operate. The A phase displays a green circle light to traffic proceeding in both directions on Pennant Hills Road, and red lights to traffic approaching the intersection in both Copeland Road and Eaton Road. During the A phase a car travelling north on Pennant Hills Road and wishing to turn right into Copeland Road can do so if there is a sufficient gap in traffic heading south on Pennant Hills Road.

17 There are sensors in the roadway near the intersection in each lane that traffic can travel on Pennant Hills Road, Copeland Road and Eaton Road. The A phase can be departed from if one or other of the sensors in Copeland Road, Eaton Road, or the turning lane in Pennant Hills Road is activated.

18 A call is made for the B phase to be activated if a car stands on the sensor in the right hand turning lane for cars heading north in Pennant Hills Road, and does not move off within a “preset period of time”. In the B phase, a green circle light and a green right turn arrow is displayed to traffic heading north on Pennant Hills Road, and a red light is displayed to traffic heading south on Pennant Hills Road. A green left turn arrow is also displayed to traffic approaching the intersection on Copeland Road. Red circle lights are also displayed to traffic approaching the intersection on both Copeland Road and Eaton Road.

19 During the C phase, red circles are displayed to both northbound and southbound traffic on Pennant Hills Road, and to all traffic approaching the intersection in Copeland Road. Traffic approaching the intersection from Eaton Road has displayed to it a green circle, and a green right turn arrow.

20 During the D phase, red circles are displayed to both northbound and southbound traffic on Pennant Hills Road. Southbound traffic on Pennant Hills Road also has displayed to it a green left turn arrow. Traffic approaching the intersection from Copeland Road is free to move straight ahead, to left or to right, while traffic approaching the intersection from Eaton Road faces a red circle.

21 Mr Paul gave evidence:

“Q. Can you tell the members of the jury how long would it take once the request for the green right signal heading in that right hand turning lane is made. How long would it take from the request being made until the arrow being illuminated?

A. Once the call has been made to run the B phase at an the appropriate time between the signal cycle determined by the computer, the southbound Pennant Hills Road traffic would face a four and a half second yellow signal, followed by a one and a half second or – red signal. After the termination of the combination of those two times, six seconds, the right turn green arrow would be displayed for traffic turning right into Copeland Road.”

22 There are occasions when a red right turn arrow is displayed to traffic heading north in Pennant Hills Road. Mr Paul’s evidence was that such an arrow:

“… is displayed when the entire approach northbound on Pennant Hills Road is facing a red signal, so it is a red round signal with a red right turn arrow.”

23 The RTA plan tendered through him, stated that there were times when there was “timed red arrow protection for A phase pedestrians”, but examination of the plan did not make clear exactly which direction or directions the red arrow or arrows faced, or how that red arrow protection interrelated with the other sequencing of the lights. Nor did the oral evidence make those matters completely clear.

24 However, Mr Paul’s evidence about sequencing included:

25 Mr Paul explained the sequence in which the different phases of the lights operated:

“… if there was a demand for all four phases, yes, they would run in sequence, but if they’re not all demanded they can vary. You know, you can go from A to C or A to D, but they must always go back to A, but if they’re all demanded it would be A, B, C, D back to A.”

26 Mr Paul gave express confirmation that if there were vehicles on Pennant Hills Road travelling north, vehicles in Pennant Hills Road waiting to make a right-hand turn, cars stationary in Copeland Road and Eaton Road, and traffic coming south in Pennant Hills Road, that would mean that all phases would be demanded, and hence would run in the A, B, C, D sequence.

The Witnesses Called

27 Nine witnesses who were present at or near the intersection at the time of the collision gave evidence for the prosecution. The prosecution also called police officers who made observations and measurements at the crash scene, including senior constable Aram Kraefft, an expert crash investigator. The Appellant gave evidence in his own defence, and also called Mr Mark George, a crash investigator.

28 Of the witnesses present at the scene who were called by the Crown, five were drivers of vehicles heading north on Pennant Hills Road at the time, two were drivers of vehicles heading west in Copeland Road, one drove a vehicle heading east in Eaton Road, and one drove a vehicle heading south on Pennant Hills Road.

The Additional Evidence on Appeal

29 The basis for the third ground of appeal arises from an affidavit that the Appellant sought to read on the appeal. The affidavit was made by Mr Frank Cavaleri, a senior network operational officer employed by the RTA. He gave some further evidence about the manner in which the sequencing of the lights at the intersection operated on the day of the collision. That evidence was:

“The minimum period of time that must pass between a green signal being displayed to northbound traffic in Pennant Hills Road (in “A” phase) and a right turn green arrow being displayed for the same traffic (in “B” phase) would be 14 seconds.”

30 On the hearing of the appeal the Crown read without objection an affidavit of a solicitor in the office of the DPP that attached Mr Paul’s proof of evidence, and deposed to that proof having been sent to the Appellant’s solicitor more than 10 months before the trial started. In the usual way, Mr Paul’s evidence at the trial was given orally and his proof of evidence was not put before the jury. Mr Paul’s proof of evidence included some detail that was not covered by his oral evidence, about how the light sequence in A phase could be affected by pedestrian movement:

“Pedestrian movement is permitted across both Copeland Road and Eaton Road subject to pushbutton demand. If the pedestrian feature across Copeland Road has been demanded, then a left turn red arrow will be displayed to southbound traffic and a right turn red arrow will be displayed to northbound traffic in Pennant Hills Road at the commencement of the phase for a period of 6 seconds after which time the both arrows are extinguished. All other controlled movements are held by a red signal.”

Witnesses Heading North on Pennant Hills Road

31 The five eyewitnesses who were heading north on Pennant Hills Road were Mr Neville Conway (a semi-trailer driver, who was in lane two or perhaps lane one), Mr Ryan Lawes (driving a car in lane three), Mr Scott Matheson (driving a van in lane three), Mr Darryl Davison (driving a car that went into the turning lane immediately behind Ms Dodd’s car), and Mr Stephen O’Neill (driving a car that was two cars behind Ms Dodd’s car, in the turning lane).

Mr Conway’s Evidence

32 Mr Conway’s evidence was that he had used the road regularly for about 12 years, and was familiar with the intersection in question. As he drove towards the intersection he noticed a small red sports car heading in the same direction, and admired it because his daughter had always wanted a car like that. As the traffic approached the intersection it slowed down “to probably 50”. Mr Conway thought the traffic was going to stop, but the light on the northbound side of the road “… stayed green first and the traffic was stopped on the other side, so I knew we had the green light, the green arrow come over …”. On his account, in the turning lane there was one car in front of the red car he had been admiring, and another couple of cars behind. He said that the green arrow came on, and one car went through. He said that the southbound traffic was stopped at the intersection, and there was a semi-trailer in the lane closest to the median strip:

“It was a western steer prime mover semi-trailer letter custom painted. I remember that much. I don’t remember the name on the truck unfortunately, and there was a car next to him in the centre lane.”

33 At that stage there was nothing in lane one (closest to the gutter) going southbound. He said that in the northbound turning lane one car went through, then the red car went through, then:

“All of a sudden the black car come out from the gutter lane, from nowhere, everybody was stopped just like a horror movie. There was an explosion. I saw the black car drive into the passenger side of the red car. Then it somersaulted in the air one hundred yards before it landed bouncing off the gutter five or six times.”

34 He immediately stopped his vehicle, ran to the red car and ascertained that the driver was badly injured but there was nothing he could do because she was trapped. He then went to the black car. He heard the driver of the black car talking to another man:

“A. He said something, someone said something to him – why didn’t you stop. He said something like that, he said ‘I had a green light’.

35 He described the black car when he first saw it coming out of lane one as “like an airplane taking off from the gutter lane”. He said he was one or two semi-trailer lengths back from the intersection when he observed this.

36 In cross-examination he rejected a suggestion that the black car had never rolled after the collision, and said that it rolled over five or six times.

37 In his evidence in chief Mr Conway had said he was driving in lane number two. It was suggested to him that he had told a police officer soon after the accident that he had been driving in lane number one, and that was different to his evidence in the court. His response was:

“ … maybe it was but my memory doesn’t remember back that far except – I’ll know for definite there was a green arrow and the green light to my dying day. I can still see it, the car flying through when everything was stopped on the southbound side. So what lane I was driving was irrelevant to me. It was the red light – and the green light that I saw.”

38 The totality of his cross-examination concerning his recollection about the semi-trailer was:

39 Mr Conway rejected, in cross-examination, suggestions that the semi-trailer heading south was not stopped, and that the car in lane two southbound was not stopped.

40 He said that the car in front of the Mazda (which was “an oldish one”) and the Mazda were able to make their turn without stopping because they had a green arrow.

41 His evidence in chief about how he drove as he approached the intersection was:

“A. I would have got down to probably 50 – slowing down – stopping for the light because it looked like they were going to stop – I was watching because you can get the arrow and go ahead and other cars southbound get the red.

42 In cross-examination he gave further evidence about how he drove as he approached the intersection. He said he always changed gears at that place, and continued:

43 He denied that the black car came out of lane number two. The cross-examination established that Mr Conway’s statement to the police had asserted that the black car “came flying through southbound lane number 1”.

Mr Lawes’ Evidence

44 Mr Lawes gave evidence that he was travelling north in lane three. There were a couple of trucks in front of him and about five cars stopped in the right-hand turn lane. He noticed that the southbound traffic was slowing down, and when he was slowing to the intersection the southbound was stopped. He said that lane three southbound had a truck stopped in it, that was “one of those landscaping type tipper trucks that carries a lot of dirt in them” and lane two had a car in it. As he approached the intersection the situation concerning the traffic lights was:

“Well, the northbound was green, the right-hand turn light was red arrow on the approach. When I got closer it did change to green when the southbound traffic was stopped.”

45 According to Mr Lawes, there were about five cars in the right-hand turning lane, all stopped. As he came up the hill the arrow changed. The first car in the turning lane was a red Mazda MX6. He saw that car turn off to Copeland Road after the arrow had turned. The traffic light for northbound traffic at that stage was such that he “still had a green light”. When the red car moved off to go into Copeland Road:

“… it was halfway into the intersection and I heard this loud noise coming out of nowhere and all of a sudden this black sports car appeared and ran straight into the side of it, and the red car was in the middle of the intersection and the black car just rammed into the side of it, pushed it back towards the lights going further down the intersection.”

46 He said the black car came out of lane one southbound, and was “travelling probably about 100 kilometres, maybe more”.

47 After the collision:

“The black sports car then went up, flipped over the car in the air, flew through the air for about two metres or – two metres, and then landed on its roof and then slid down the road southbound.”

48 Mr Lawes immediately stopped his car on the median strip, and called emergency services. He said he heard the man who got out of the BMW say “that he had a green light and that he was in the right”, that “he was being adamant that he had the green light”.

49 In cross-examination he said that as he approached the intersection “we had the green light and I could see that the southbound traffic approaching Copeland Road was slowing down”. The northbound traffic in Pennant Hills Road had a green circle light, and a red arrow, and “when I got closer to the intersection about three or four cars off the actual intersection, the red arrow did turn to green arrow.” He drove through that intersection frequently, and “I have never seen it change any other way”. He drove through that intersection up to 10 times a day, and he had never seen a phase where the green circle would come on and there would be no arrow. He was clear that the truck he saw stopped in lane three southbound was a tipper truck, not a semi-trailer. He rejected the suggestion that when the Mazda turned towards Copeland Road there was just a green circle showing for northbound traffic.

Mr Matheson’s Evidence

50 Mr Matheson was driving north in lane three. His evidence was that he was familiar with the intersection. He said that as he drove north up the hill towards Copeland Road, “the lights were red, so I just pulled up. I was about the fourth or fifth car in that third lane pulled up to a stop”. The southbound traffic was stopped as well. There were two or three cars in the turning lane. He said,

“I noticed the green arrow come on and the cars started to take off. At this point I put me van into gear ready to take off because I know that on most intersections after you’ve had your people turning right you can go straight ahead after that because you’ll get your green light.

51 It was as he was waiting in the traffic at the intersection that “I heard a loud bang and as I looked over a car came flying past the van window on the other side of the road”. He could not remember the make and model of the car that was hit.

52 In cross-examination, Mr Matheson said that when he was stopped at the intersection there was a red circle signal in the traffic lights, and also a red arrow going to the right. He said he saw the green arrow come on “after the other cars from other direction had gone through, I suppose”. He agreed that by “other direction” he meant out of Eaton Street and Copeland Road. According to him, both southbound and northbound traffic was completely stopped, and then a green arrow came on and vehicles in the northbound right hand lane proceeded to turn right.

53 Mr Matheson had given a statement to the police soon after the accident, in which he said that as he approached the intersection he saw a red round circle and a red right turn arrow, and that it was because he saw the northbound right turn line of traffic beginning to move forward that he put his van into gear. He had not mentioned in the police statement that he had actually seen a green right turn arrow. When asked for an explanation of this omission he said:

“There was a lot of things that – when everything happened so quick there was a lot of things that you can’t get your brain around.”

Mr Davison’s Evidence

54 Mr Davison had started to live in Australia in July 2006 (ie one or two months before the accident), and was not familiar with Sydney roads. As he drove north towards the intersection with Copeland Road he moved into the turning lane. He was “pretty sure” the traffic lights facing him were green. There was a small red sports car immediately in front of him, stopped in the right turn lane, so he also stopped. At that stage there was no green arrow, just a green light for northbound traffic. He said “once there was no cars coming through heading south the red car pulled out to make its way over to Copeland”. He saw a black car coming from the north heading south, that looked like it was in the lane closest to the kerb, and was being driven “very fast”.

55 His evidence in chief made no mention of seeing a green right turn arrow before the red car moved off. In cross-examination he said:

“Q. And at that time when the red car moved forward and began to make its turn the only traffic light signal that is showing against you or the red car was the green circle signal.

A. That is right.”

Mr O’Neill’s Evidence

56 Mr O’Neill travelled through the intersection about once a week. As he approached the intersection he pulled into the turning lane to go into Copeland Road. There were two cars in front of him. After he moved into the right hand turning lane,

“A. We were stationary on red, traffic in both directions was stationary red. Traffic from Copeland Road started to move and once that had happened, we then got the northbound and southbound got a green light go. We still had a red marker for the right-hand turn.

57 He said that, at the time he moved into the right hand turning lane, the right hand turning arrow:

“A. … was not lit at that stage. It was red – yes, sorry, it was red in colour.

58 Concerning the traffic on the other side of the intersection heading south, he recalled there was a “big truck” in lane three, a vehicle the nature of which he could not remember in lane two and nothing in lane one.

59 He said that the red arrow signal went out for “about a minute” so there was no arrow at all. He said:

60 He described the BMW as “a black flash pretty much”, “absolutely flying”. He said:

61 In cross-examination he reiterated that when he pulled into the right-hand turn lane the two vehicles in front of him were stationary, and that all northbound traffic was stopped by a red circle. He could not say whether there was a red arrow or not, “I just know that the lights that I was facing everybody was stopped because of the red”. It was only when he pulled up that he noticed the vehicles coming out of Copeland Road, and “turning either into Pennant Hills north or south bound”. He disagreed with the suggestion that the Mazda paused, then turned right on a green circle light. He rejected the suggestion that the southbound traffic did not stop at the lights. He described the truck in lane three as one that “… looked to me like a very large B-double or a big truck.” Also, he rejected the proposition that the BMW came from lane two.

Witnesses Heading West in Copeland Road

62 The witnesses who were driving west in Copeland Road were Ms Yan Oito (who gave some of her evidence through a Vietnamese interpreter), and Mr Jeremy Hampson.

Ms Oito’s Evidence

63 Ms Oito was driving west along Copeland Road, intending to proceed across Pennant Hills Road. Copeland Road has two lanes proceeding westward at that point, and she was in the left-hand lane. As she arrived at the intersection the lights facing her turned red, so she stopped. She thought, but was not sure, that at that time there was another car in the right-hand turning lane of Copeland Road. Traffic heading south on Pennant Hills Road was proceeding through the intersection. She saw a red car waiting in the right-hand turning lane on Pennant Hills Road. When asked whether she could see any traffic in the lanes heading down Pennant Hills Road for traffic going south, she replied, “I feel the movement of the car”. When asked that question again, she said, “I didn’t pay attention, yep”. When asked in substance the same question again, she said once more “Yeh, I feel them”. When asked what she meant by that, she said “I feel the movement of the car”. She said she was stopped there for “about one or two minutes”. She continued:

“… when I was waiting for the traffic light turn green, suddenly the crash was happened – and dark shadow passed through me, very fast, and the red car was crashed, yeah, and red car stopped in the intersection and – and the dark car, I don’t know where it is.”

64 Before she saw the shadow,

“The red car was going to turn right, yeah. I think the traffic light – (Through interpreter). Well, I think that the red arrow actually have turned green. (Not through interpreter) Yeah, because at that time I – I – I – I – could see truck and a car stopped in front of the southbound lane Pennant Hills Road, yeah.

…

The truck was on the fast lane and another car in the middle lane. I think the dark car was on the – (Through interpreter) Closest.”

65 The car that was stopped going southbound was in the “middle lane”. In cross-examination she confirmed that she could not see the traffic lights facing either traffic travelling south, or traffic travelling north, in Pennant Hills Road. The cross-examination included:

66 In re-examination the prosecutor was permitted to ask, over objection:

67 That evidence was immediately followed by a Delphic exchange:

“CROWN PROSECUTOR: Your Honour, there is a matter I need to raise before I can finish with the witness.

HIS HONOUR: No.

CROWN PROSECUTOR: I have no further questions of the witness, your Honour.”

68 While that exchange might make someone familiar with court process wonder whether Ms Oito had departed from her proof, a reasonable jury would not be justified in inferring that she had departed from it, so I leave that exchange out of consideration.

Mr Hampson’s Evidence

69 Mr Hampson was “very familiar” with the intersection. He drove west down Copeland Road, intending to turn right into Pennant Hills Road, “the light had turned just before I got there so I was sitting – as the first car in the right turning lane”. There was another vehicle in lane one, that he identified as a white Holden Commodore. (Ms Oito had said she was driving a Ford Laser.) His observation of the accident was:

“… I was sitting there waiting for the light and there was – I was looking towards light, as there was a break in the traffic, so from the corner of my eye, half looking towards the road, and I saw a flash, a black flash coming through.”

70 His first saw the “black flash” in the middle of the intersection. “It seemed to be going very fast”.

71 He saw the black car collide with a red car, but did not notice the red car before the collision. He noticed “an Asian guy” walking up from the vicinity of the black car towards the collision shortly after it had happened, and heard him say, “the light was green”.

The Witness Heading East in Eaton Road – Ms Bianchini

72 Ms Jane Bianchini was driving east in Eaton Road intending to cross the intersection into Copeland Road. When she arrived at the intersection the lights facing her were red, and she stopped in the kerbside lane. She was the first car stopped at the intersection in that lane. She said:

73 Once the system of numbering road lanes was explained to her, she identified the lanes that the southbound vehicles were stopped in as being lanes two and three. Concerning the vehicle stopped in lane three, she said “I believe it was a semi-trailer or a large truck”. She could not recall what type of vehicle she saw in lane two, and did not notice any vehicles in lane one of the southbound carriageway. She was waiting at the red stop signal for “probably a couple of minutes” when she saw the collision. One of the cars involved:

“… came from the south, was heading south from my left – on my left and it was on the kerbside, in the kerbside lane and it came through the light and collected the red car.”

74 She said she thought it was travelling “very fast. It seemed a lot faster than the other cars that had been going through that intersection”. She became aware of the red car “pretty much on impact”. She said that she was sure that the vehicle that was stopped closest to her on the southbound carriageway of Pennant Hills Road was a semi-trailer. She rejected a suggestion that there was no car stopped in lane two heading south in Pennant Hills Road. In the statement she made to the police on 8 September 2006 she had said “there were definitely a number of cars stopped in Copeland Road, and I think there were vehicles stopped in the southbound lanes of Pennant Hills Road”. The cross-examination included:

The Witness Heading South In Pennant Hills Road – Ms Rice

75 Ms Donna Rice lived on Pennant Hills Road north of the intersection in question. Her house was near the next intersection to the north (that of Pennant Hills Road and Aiken Road), and on the eastern side of Pennant Hills Road. Thus it was the southbound carriageway of Pennant Hills that ran in front of her home. On the afternoon in question she set off by car from her home on a journey that was intended to take her southward on Pennant Hills Road, then left into Copeland Road. She said she reversed out from her driveway onto Pennant Hills Road at a time when “there wasn’t a single car coming down”. She says she was travelling “about 40, 50ks down to the intersection and I got to about Aiken Road when the black BMW passed me.” It was travelling “very fast”. Ms Rice was on the lane closest to the kerb. She was “very shocked at the speed it was going”. In a period of “less than a minute” after the black car had passed her, she saw it “slammed into the car that was turning right into Copeland Road”. She gave two estimates of where she was when the collision occurred – one was “about 25, 30 metres back from the intersection”, the other that she was just a bit past the bus stop on the left-hand side. When she saw the collision:

“I then crawled down to the lights and stopped at the light and only – a car came up behind me and beeped me then I looked up at the light and then proceeded to turn left into Copeland Road.”

76 At the time of the collision she did not see any other traffic in any of the southbound lanes of Pennant Hills Road:

“… there were no cars at that time. Only when I crawled down to the lights and stopped did then cars come up behind me.”

77 The accident took all her attention, so she did not see what the traffic lights controlling southbound traffic were at the time.

78 In cross-examination she said that after the BMW had passed her, it never changed lanes into lane one. She said that as she was travelling along Pennant Hills Road between Aiken and Copeland Roads she did not see the warning lights that are in the median strip in Pennant Hills Road flash.

79 She rejected a suggestion that the BMW appeared to her to be going fast only because she was driving so slowly, saying:

“No, because cars normally are travelling 80 down that road. They are normally speeding, going fast and having lived there for 11 years and when that black BMW passed me and I made a mental note to myself that that was shocking of the speed that that car was going, that was just, you know, insane.”

80 In response to a question from the judge, she identified the location of her house by reference to a photograph taken from just north of the Aiken Road intersection. That photograph itself shows that the warning sign with flashing lights on the median strip is just a little to the south of the Aiken Road intersection.

81 A police witness gave evidence that from the centre of Mrs Rice’s driveway to the northern side of Copeland Road was 232m, from the southern side of Aiken Road to the northern side of the intersection with Copeland Road was 93m, and the distance from the southern end of the bus stop to the northern side of the intersection with Copeland Road was 51m. The RTA plan shows the sign with flashing lights is 71m north of the intersection with Copeland Road. It follows from these figures that Mrs Rice would have travelled of the order of 150m from her home before the sign with flashing lights passed from her field of vision.

The Expert Witnesses

82 While there was a great deal of complex expert evidence, nearly all of it attempted to deduce the speed at which the Appellant's vehicle was travelling when it entered the intersection. The only evidence that bears upon the question of whether the appellant went through a red light is some expert evidence given by Senior Constable Kraefft.

83 He observed, measured and photographed various marks on the road surface, including a gouge mark that he identified as made by the rear passenger side wheel of the Mazda at the time of impact with the BMW. That gouge mark was approximately 5m west of the eastern kerb alignment of Pennant Hills Road. He measured southbound lane one in Pennant Hills Road as being approximately 3.6m wide, and the other southbound lanes are approximately 3.2m wide. Thus the gouge mark occurred marginally to the east of the centre of lane two. The impact was to Ms Dodd’s passenger side front door, and thus occurred a little further towards the east of the gouge mark.

The Appellant’s Evidence

84 The Appellant’s evidence about the accident was:

“I was travelling in lane 2 of Pennant Hills Road and as I approached Aiken Road. As I went past the intersection I glanced down at the speedometer and it showed somewhere around 70 kilometres an hour. And then I continued onwards and then I saw the Mazda somewhere past, just past the bus stop and it appeared to have stopped on its side of the intersection. And so I thought, okay, well I will continue going at the same pace. And once I was almost entering the intersection it turned in front of my vehicle and we collided.”

85 He said he believed he was the only vehicle coming south, “with the exception of another car that just exited its roadway in lane 1”.

86 He said the traffic lights facing him were green, and the warning sign between Aiken Road and Copeland Road was not flashing. He said he did not apply his brakes because he believed he was the only vehicle coming down his way with the exception of another car that just exited the roadway in lane one. He said there were no vehicles stationary at the intersection.

87 In cross-examination he denied that he had been travelling at speed, and that he went through a red light. He said he did not recall Mr Conway contradicting his statement about having had a green light. He accepted that his statement to the police differed from his evidence in court because in his statement to the police he had said he was travelling below the speed limit, and had not said anything about glancing at his speedometer. His explanation for the difference was that his recollection had improved.

88 He accepted that in his statement he said nothing about seeing a car as he came down Pennant Hills Road. He accepted that his police statement had said nothing about him seeing the Mazda as he approached the intersection.

Grounds 1 and 3

89 It is convenient to deal with these grounds together.

90 The principles concerning reception on a criminal appeal of evidence that was not before the jury are laid down the High Court in Ratten v R (1974) 131 CLR 510; by this Court in R v Bikic [2002] NSWCCA 227 (special leave to appeal refused 11 April 2003) and by the Queensland Court of Appeal in R Katsidis; Ex parte AG (Qld) [2005] QCA 229. Those principles arise in the context where the jurisdiction of a court of criminal appeal is statutory, and the relevant statutory provision, section 6 Criminal Appeal Act 1912, empowers the court to allow an appeal when there is a miscarriage of justice.

91 In Ratten Barwick CJ, at 516, identified one of the situations where there could be a miscarriage of justice in a criminal trial as being when:

“… the jury did not have before it evidence not available to the appellant at the time of his trial which, if believed by the jury, was likely to lead to an acquittal, the jury not being satisfied beyond reasonable doubt of guilt.”

92 His Honour adverted to the distinction between “fresh evidence” and “further evidence” that is drawn in appeals from a civil trial, saying, at 516-517:

“The rule in relation to civil trials is that evidence, on the production of which a new trial may be ordered, must be fresh evidence; that is to say, evidence which was not actually available to the appellant at the time of the trial, or which could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case. However, the rules appropriate in this respect to civil trials cannot be transplanted without qualification into the area of the criminal law. But the underlying concepts of the adversary nature of a trial, be it civil or criminal, and of the desirable finality of its outcome are valid in relation to the trial of a criminal offence.”

93 He identified one difference between the circumstances in which further evidence will be received on appeal in criminal trials, by comparison to civil trials, at 517:

“Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial.”

94 He concluded, at 517-518:

“Thus, there will be no miscarriage simply because evidence which was available to him actually or constructively was not called by the accused, even though it may appear that if that evidence had been called and been believed a different verdict at the trial would most likely have resulted. The accused, nevertheless, will have had a fair trial. But if the new evidence does qualify as fresh evidence it can be said that the trial was not fair. Of course, if by reason of new evidence accepted by it though it may not be fresh evidence, the court is either satisfied of innocence or entertains such a doubt that the verdict of guilty cannot stand, the fact that the trial itself has been fair will not prevent the court upon that evidence quashing the conviction.”

95 The course I shall follow in the present case is to consider first whether there is a basis for setting aside the conviction without any reliance on Mr Cavaleri’s evidence, and then what the outcome of the appeal might have been if the evidence were to be admitted.

96 The legal test that Mr Odgers SC, counsel for the appellant, asks this court to apply in overturning the jury verdict is that articulated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487. Their Honours said, at 493:

97 At 494 their Honours referred to previous cases that had discussed whether the appropriate test for setting aside a verdict on the ground that it is unsafe or unsatisfactory is whether there is reasonable doubt in the mind of the court, or whether it is for the court to decide whether there is a doubt that a reasonable jury ought to entertain. Their Honours said:

“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 ought 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.” (citations omitted)

98 That test was reiterated in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [25] per Gleeson CJ, Hayne and Callinan JJ, and at [59] per McHugh, Gummow and Kirby JJ.

99 Mr Odgers seeks to deploy Mr Cavaleri’s evidence to ground a submission that, given Mr Matheson’s evidence that he had stopped at a red light (which would happen for cars travelling in the northbound direction only during C or D phases) and that it was 14 seconds after the green light for northbound traffic came on at the start of A phase, until a green arrow was shown to northbound traffic in B phase, it was inconceivable that he would have been sitting there for 14 seconds, facing a green light, and with no one behind beeping him to move. As Mr Matheson saw the collision, it would follow, Mr Odgers submits, that Ms Dodd turned on a green circle, not on a green arrow.

100 Considering the matter without Mr Cavaleri’s evidence, in my view it was well open to the jury to take the view that Mr Matheson was mistaken in his evidence about the lights facing him being red, and that he stopped.

101 It should first be recognised that there is some evidence that is consistent with Mr Matheson’s evidence that he stopped at a red light. The only circumstance in which the lights facing him would be red was if there was a green light for traffic approaching the intersection in either Copeland Road or Eaton Road. The evidence of both Ms Oito and Mr Hampson was to the effect that there was a green light for traffic in Copeland just before they arrived at the intersection, so Mr Matheson’s evidence about stopping at a red circle light is consistent with that evidence. As well, the evidence of Mr O’Neill is a coherent account of observations of the changes in the lights that would follow one another if he had arrived in the northbound turning lane during the D phase, when there was both a red arrow and a red circle facing the northbound traffic, then of there being a green circle facing northbound traffic (the A phase), and then of there being a green arrow facing the northbound traffic (the B phase). That evidence is consistent with it having been possible that Mr Matheson arrived at the intersection during the D phase and for that reason needing to stop even though he, unlike Mr O’Neill, was seeking to go straight ahead rather than turn right. Further, Ms Oito’s evidence of thinking that she saw the red car pulled up when she (Ms Oito) pulled up at the intersection is consistent with there having been a D-A sequence, and to that extent consistent with Mr Matheson’s evidence of having pulled up at a red light.

102 However the sequence of lights that Mr Matheson said he saw facing the northbound traffic in Pennant Hills Road, namely a red circle light followed by a green arrow, never occurs – the only time the green arrow occurs is in the B phase, and if the B phase happens at all it happens immediately after the A phase, in which a green circle is displayed to northbound traffic. The tenor of his evidence was that there was a red circle followed immediately by a green arrow – it was not (as would be necessary if Mr Odgers’ submissions were correct) that he stopped at a red circle, failed to notice for 14 seconds that the light facing him had turned to a green circle, and then saw a green circle facing him, and no green arrow. It was comfortably open to jury to regard this objective evidence about the light sequence, which directly contradicted Mr Matheson’s evidence, as being far more significant than any inferential support for Mr Matheson’s evidence that might be derived from the matters I have referred to in the previous paragraph. A fatal weakness in seeking to derive inferential support from the matters in the previous paragraph is that there is no evidence that relates the time that Mr Matheson arrived at the intersection to the time that Ms Oito, Mr Hampson and Mr O’Neill respectively arrived at the intersection. If they arrived before Mr Matheson, their evidence would not support him. For evidence to be consistent with some state of affairs means only that the evidence could be true in that state of affairs. That falls short of the evidence justifying, or supporting, an inference that that state of affairs actually exists.

103 As well, there was considerable evidence of Ms Dodd turning on a green arrow – from Mr Conway, Mr Lawes, Mr Matheson himself, and Mr O’Neill. There was evidence of northbound traffic having a green light from Mr Conway, Mr Lawes, Mr Davidson (direct evidence), and Ms Bianchini (evidence of northbound through traffic moving through the intersection). For the jury to accept that Mr Matheson’s evidence provides a basis for having a reasonable doubt about whether Ms Dodd turned on a green arrow would involve the jury in not being sufficiently persuaded by the evidence about her turning on a green arrow. The jury would have been entitled to take the view that an unattractive feature of reasoning that Mr Matheson’s evidence about stopping on a red circle raised a doubt about whether Ms Dodd had turned on a green arrow, is that reasoning in that way is contrary to Mr Matheson’s own evidence that she turned on a green arrow.

104 In deciding whether Mr Matheson’s evidence about stopping on a red circle raises a reasonable doubt, it is important, in my view, that the observation evidence of the witnesses in the present case is a type of evidence concerning which a jury who actually sees the witnesses giving evidence has a considerable advantage over an appellate court reading a transcript. The evidence that a jury accepts concerning matters of observation can be very much affected by matters that do not readily show on the transcript, like whether one witness gave evidence in a confident and clear manner, while another appeared dithery or uncertain. In assessing the evidence, a reasonable jury would be entitled to take into account that the eyewitnesses were all independent of the Appellant, independent of Ms Dodd, and independent of each other. Here, the weight of evidence on the transcript favours the view that Ms Dodd turned on a green arrow, and the persuasiveness of evidence that is directly to the contrary (Mr Davidson, and the Appellant), or that is to the contrary if one prefers an inference open from part of it to a direct statement in another part of it (Mr Matheson) could be affected by the jury’s impression of the witnesses.

105 It will be recalled that both Mr Lawes and Mr Matheson were heading north in lane three, and both were in a position to see the accident when it happened. The accounts that they give of the manner in which the traffic lights changed are quite different. Seeing the witnesses could be a real help to a jury in resolving that difference.

106 Mr Odgers had placed reliance in his written submissions on the unacceptability of Mr Lawes’ testimony that the northbound traffic had a red arrow followed by a green arrow. Mr Arnott SC, counsel for the Crown, submitted that the evidence showed that a possible sequence of lights facing northbound traffic in Pennant Hills Road was that there was first a red circle and a red arrow, then a green circle and a red arrow, then a green circle, then a green circle and a green arrow. That followed, he submitted, both from the evidence of Mr Paul about sequencing (set out at para [24] above) and from the way that the operation of the pedestrian lights across Copeland Road could trigger a right turn red arrow being displayed to northbound traffic in Pennant Hills Road. Mr Odgers accepted, on the appeal, that this submission of Mr Arnott about the sequencing of the lights was correct. When that sequence of lights is possible, Mr Lawes’ evidence about his observations first as he approached the intersection, then as he got close to it (set out at para [44]-[45] above) is not one that is impossible in light of the objective evidence about the sequencing of the lights.

107 As it is only during the B phase of the lights that a green right turn arrow is displayed to traffic heading north on Pennant Hills Road, and the B phase involves a red light being displayed to southbound traffic on Pennant Hills Road, evidence about whether southbound traffic was stopped on Pennant Hills Road is directly relevant to whether the lights were in B phase. The witnesses who said there was a truck (of some sort) and another vehicle stopped at the southbound lights were Mr Conway, Mr Lawes, Mr O’Neill, and Ms Bianchini. While Ms Oito saw the vehicles stopped there, she first saw them stopped only after the accident. At least on paper, she does not present the appearance of being an attentive and careful witness, and in particular, from the fact that it was only from the movement of her car caused by passing traffic that she knew that there was southbound traffic, there is a basis on which a jury might have been concerned about whether she was looking outside the car at all. Mr Hampson did not notice anything stopped there, but neither did he deny that there was anything stopped there. (His rather uncertain evidence in cross-examination was “there seemed to be a period where cars slowed down or weren’t going through, so, from the corner of my eyes I started watching for the light to change and at that time the black car came through”.) While Ms Rice says that there were no southbound vehicles other than herself and the Appellant, it was open to a jury to reject her evidence on that point.

108 A distinct category of evidence supportive of the Appellant having gone through a red light, was Mr Conway’s unchallenged evidence concerning how, immediately after the accident, he emphatically contradicted the Appellant’s statement that he had had a green light.

109 Clearly, there were some aspects of evidence of some of the Crown witnesses that could not be accepted. Mr Conway’s evidence about there being another car stopped in front of Ms Dodd’s car is out of line with all the other witnesses. Mr Conway’s dramatic account of how the BMW moved after the collision is inconsistent both with other eyewitnesses and with the expert testimony. There was some diversity of evidence about the type of truck that was stopped in lane three southbound. The evidence about the precise sequence of lights that was displayed to northbound traffic in Pennant Hills Road was not all consistent. Mr Lawes’ evidence that he had never seen the lights at the intersection change in any other way than from a red arrow to a green arrow does not sit well with Mr Paul’s evidence about the sequencing. The objective evidence about where the rear wheel of Ms Dodd’s car was at the point of impact raises a possibility that the Appellant’s vehicle was at least partly in the prolongation of lane two into the intersection at the instant of collision, which would be consistent with the evidence from some of the Crown witnesses about a car being stopped at the lights in lane two only if the Appellant had moved somewhat to the right while driving through the intersection.

110 However, the fact about which the jury had to be satisfied beyond reasonable doubt before it could convict was that the Appellant had gone through a red light. On the evidence, if Ms Dodd had turned on a right hand green arrow, not on a green circle, it was inevitable that the Appellant had gone through a red light. I am not persuaded that it would not have been open to a properly instructed jury to be satisfied beyond reasonable doubt that Ms Dodd had turned on a green arrow. I say that even bearing in mind Mr Davidson’s evidence that Ms Dodd had turned when the lights facing her were a green circle only.

111 What difference might Mr Cavaleri’s evidence have made to this? The jury already had evidence before them that the only time there was a red light facing northbound traffic in Pennant Hills Road was when the lights were in either C or D phase, and that the lights always returned to A phase before the B phase was triggered. It had evidence that the B phase was triggered only after a car had stood on the sensor in the right-hand turning lane for a “preset period of time” without moving off, and that even when the call was made to run the B phase it was only “at an appropriate time between the signal cycle determined by the computer” that the southbound traffic in Pennant Hills Road would face an orange signal, and six seconds after that orange light had come on the green right turn arrow would be displayed to traffic in the turning lane. Thus, the jury already had evidence that it was at least something more than six seconds after the call was registered that the green arrow was displayed. What Mr Cavaleri’s evidence did was to tell them what that “something more” was, as it related to the start of the A cycle.

112 There is no occasion on the present appeal to enter into the difficulties discussed by Giles JA in Bikic at paras [241]–[283] concerning whether it is properly part of the task of a court of criminal appeal to decide for itself whether to accept the new evidence. That is because in the present case the additional material sought to be deployed in evidence has been treated by all concerned as a simple matter of fact, concerning which no question of credibility arises for decision. It is, however, necessary to observe the distinction that Giles JA drew between the ways in which additional evidence sought to be admitted on appeal is treated depending on whether it shows either (1) that the accused is innocent, or else that there is a reasonable doubt about his guilt such that it would be a miscarriage of justice to allow the guilty verdict to stand, or (2) that the accused has not had a fair trial, such that it would be a miscarriage of justice to allow a verdict arrived at through such an unfair process to stand. To decide whether the additional evidence shows that this is a type (1) case, Giles JA said in Bikic at [283]:

“I must decide whether I believe the evidence and, acting on that belief and my own view of the evidence at the trial, whether I am satisfied that the appellant was innocent or whether there is such doubt as to his guilt that the verdict of guilty cannot stand.”

113 Accepting Mr Cavaleri’s evidence as fact, I am neither satisfied that the appellant was innocent, nor in a situation where there is such doubt about his guilt that the verdict of guilty cannot stand. The reasons I have previously given at paras [101]–[107] why it was well open to a jury to take the view that Mr Matheson was mistaken in his evidence about the lights facing him being red, and that he stopped, are, to the extent that they are not ones relating to the advantage that a jury would have over me, reasons that lead me to not accept his evidence in those respects.

114 Turning to whether this is a type (2) case, and assuming for the moment that Mr Cavaleri’s evidence counts as fresh evidence, the test to apply is:

Katsidis

115 I do not accept that if Mr Cavaleri’s evidence was accepted by the jury (as there was every reason for it to be) it was likely to lead to an acquittal, or that there was a significant possibility of an acquittal. The jury had ample ground to reject Mr Matheson’s evidence that he had stopped at a red light and then seen a green arrow, and Mr Cavaleri’s evidence in no way qualifies or lessens that ground.

116 It follows that, even if the evidence of Mr Cavaleri were to be allowed on the appeal, ground 1 would not be upheld.

117 In that circumstance it is unnecessary to consider whether Mr Cavaleri’s evidence surmounted the hurdle of being evidence not available to the Appellant at the time of his trial.

118 I would hold Mr Cavaleri’s evidence not admissible, and reject grounds 1 and 3.

Ground 2 – Inadequate Instruction of the Jury

The Summing Up

119 The proceedings before the jury involved evidence being taken on five days that were not consecutive, namely 23, 24 and 25 October 2007, and 29 and 30 October 2007. The addresses of both counsel and the summing up were given in the morning of 31 October 2007.

120 At the outset of the summing up the judge said to the jury:

“… the legal issue has been simplified but of course as you probably appreciate from counsel’s addresses, the factual situation is perhaps anything but.”

121 When instructing the jury about the elements of the offence, the judge told them that “there is only one element that is really in contention here”. He identified that element as “that at the time of the impact, Mr Wong was driving the vehicle in a manner dangerous”. He told them “the Crown says that Mr Wong was driving at an excessive speed in the circumstances and two, that he failed to stop at a red light … They are the two principal facts that the Crown will have to prove to you beyond reasonable doubt.”

122 He stated:

“There are probably three factual matters that are going to be the most important ones that you are going to have to determine, and counsel have referred to this. The first is, the speed of the vehicle that was being driven by Mr Wong. Now, the evidence in respect of the speed comes from eyewitnesses and, to some extent, from the experts. They have given estimations as to speed. The next thing is the lane that the BMW entered the intersection from, was it lane 1, lane 2, lane 3? Now, the only evidence about that is, comes from some of the eyewitnesses. The third thing is the traffic light signal that was facing Miss Dodd. Again, you have got some eyewitness accounts of what the traffic light signal was, people who have actually observed the light itself and people who observed what the traffic was doing travelling south in Pennant Hills Road.”

123 He mentioned to the jury how, immediately after the accident, “the accused maintained to a number of people that he had a green light. Mr Conway disputed that. Well, that dispute of facts is one that you are going to have to resolve.”

124 He said to the jury:

“The phasing of the lights is obviously an important matter that you will have to have regard to. Again, different witnesses have seen different things there, and [counsel for the appellant] says to you that well, you know, okay, so they did see different things, maybe that’s understandable, but can you be satisfied beyond reasonable doubt of what the situation was in those sorts of circumstances.”

125 He also said to the jury:

“If you find or if you are not satisfied beyond a reasonable doubt the accused went through a red light, then really the Crown says that they cannot support a case of driving in a manner dangerous to you, because if you accept Mr Paul’s evidence as to the configuration of the lights and how the phasing operated, if there was not a red light facing the accused, well there would not have been a green arrow facing Ms Dodd when she made her turn.”

126 At the conclusion of the summing up the judge asked counsel whether there was anything further they would like him to say to the jury. Counsel for the Appellant (who was not Mr Odgers) answered in the negative.

127 The jury were comparatively quick in arriving at their verdict. They retired at 12:47 pm, and came back with a guilty verdict at 3:05 pm.

The Appellant’s Submission

128 The Appellant submits that the judge failed properly to put the defence case to the jury. At the hearing of the appeal, the focus of Mr Odgers’ submission was that the judge simply said nothing about what the defence case was. The Appellant had a positive case at the trial, namely that he was driving at the speed limit, or perhaps a little bit over, that Ms Dodd turned when she was facing a green circle light, but not a green arrow, and that when the Appellant entered the intersection he was facing a green circle light. The Appellant himself gave evidence in support of that case. There was clear direct evidence to support it from Mr Davison. The evidence of Ms Rice also tended to support it because, even though Ms Rice did not say she observed the state of the traffic lights at the intersection, her evidence about there being no cars in any of the southbound lanes at the time of the collision was inconsistent with the light facing southbound traffic at the time being red. There were various criticisms that could be made of the evidence of some of the Crown witnesses (some of which I have mentioned in para [109] above), yet the judge referred to none of them. The only reference that the judge made to the extremely complex topic of the phasing of the lights was the passage I have set out at para [124] above. Mr Odgers submits that the trial judge made no reference to the evidence given by Mr Davison, Ms Rice and Mr Hampson, that he made no reference to the defence submission that the witnesses would have had no reason to concentrate on what happened until after the collision.

The Law

129 In RPS v R [2000] HCA 3; (2000) 199 CLR 620 Gaudron ACJ, Gummow, Kirby and Hayne JJ at [41]:

will require

130 In Alford v Magee (1952) 85 CLR 437 at 466 Dixon, Williams, Webb, Fullaghar and Kitto JJ said:

“… the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are.”

131 Though Alford v Magee was a civil case, it was cited by the High Court in RPS at [41] as authority for the proposition that “Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues”.

132 In R v Meher [2004] NSWCCA 355 at [76] Wood CJ at CL said that the task of a judge:

Pemble v The Queen

133 Wood CJ at CL went on, at [82]-[86] to say:

“It is essential, if a summing up is to be fair and balanced, that the defence case be put to the jury.

Regina v Schmahl

R v Wilson

Raspor v R

Regina v Tomazos

‘In the result the conclusion appears to me to be inevitable that not only has there been a miscarriage of justice but a substantial miscarriage. The Appellant has not had what in law he is entitled to have, and that is a trial according to law. A trial according to law includes as an essential prerequisite that the trial judge has put fairly, cogently and with clarity to the jury the accused’s defence. The weaker the defence the more essential it is for his defence such as it is to be put to the jury so that they can consider it in the light of the Crown case and evaluate it as part of their assessment together with the Crown evidence to see whether the Crown has discharged its onus of proof.

[…]

It can properly be said that the accused fairly lost a chance of acquittal because his case was never put to the jury by the trial judge. It is completely insufficient for a trial judge simply to say to the jury in effect, “Well, you have heard all that has been said on behalf of the accused by his counsel; it is unnecessary for me to say anything more”. The trial judge must lend the weight of his judicial position and authority to putting before the jury himself the case for the accused.’

R v Malone

Van Leeuwen v The Queen

‘A trial judge is not bound in his summing up to comment on all of the evidence or to refer to all of the contentions on which the accused has relied. The adequacy of a summing up in its references to questions of fact must depend upon the circumstances of the particular case. In the present case the learned trial judge not only failed to indicate to the jury the significance of the important piece of evidence but by stating that he did not follow the argument of counsel might have been [thought] by the jury to be depreciating its importance.’’

R v Courtney-Smith (No 2)

‘… It is not the length of the time devoted to the case of the Crown or the accused which is in issue. It is the fairness, balance and impartiality of the summing up which the appellate court must review and safeguard.’”

134 In R v Zorad (1990) 19 NSWLR 91 at 105 Hunt, Enderby and Sharp JJ said:

each

135 That statement would now need to be read in the light of section 161 Criminal Procedure Act 1986. The predecessor of section 161 Criminal Procedure Act, namely section 405AA Crimes Act 1900, was first inserted in the Crimes Act in 1990 by Criminal Procedure Legislation (Amendment) Act 1990 and commenced 17 March 1991, hence was not in effect at the time of the trial considered by this Court in Zorad.

136 Section 405AA Crimes Act 1900 was in substantially the same terms as section 161 Criminal Procedure Act 1986, which says:

“(1) At the end of a criminal trial before a jury, a Judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary.

(2) This section applies despite any rule of law or practice to the contrary.

(3) Nothing in this section affects any aspect of a Judge’s summing up function other than the summary of evidence in a trial.”

137 The manner in which section 405AA affected the duty of a judge in summing was considered by this Court Condon v R (1995) 83 A Crim R 335. Allen J (with whom Newman and Simpson JJ agreed) said, at 347-348:

“… it is the task of the trial judge not merely to give formal directions of law as to the legal elements of the offence charged but to explain to the jury the application of those elements to the respective cases of the Crown and of the accused. In short, it is his duty to give them assistance so that they understand what the critical issues of fact are upon application of the law to the particular case. The trial judge is not relieved from that duty by the arguments of counsel. Indeed … it would not be enough even for the trial judge accurately to state what the case for the accused is as it has been presented … s 405AA does not relieve a trial judge of the duties to which I have referred. The fulfilment of those duties does not require that the evidence be summarised as distinct from the respective cases being stated and the jury instructed as to the application of the law to those cases.”

Crimes Act

Criminal Procedure Act

138 We were referred to a judgment that is presently the subject of a non-publication order, but which will, when that non-publication order is lifted, be identifiable from its citation as [2006] NSWCCA 235, and in particular to paras [59]–[65] of the judgment of Smart AJ (with whom McClellan CJ at CL and Rothman J agreed). It suffices to say that there is nothing in those paragraphs that is inconsistent with the principles I have cited at paras [129]–[137] of this judgment. We were also referred to the decision in R v Abbas [2006] NSWCCA 331, but that case does not purport to state any new legal principle, or to be anything other than an application, to the facts of the particular case, of the decision of the High Court in M v The Queen.

139 The Crown drew our attention to Cleland v The Queen (1982) 151 CLR 1 at 10, where Gibbs CJ (with whom Wilson and Dawson JJ agreed on this point) said:

“It is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence. In what manner, and in what detail, this should be done must of course depend on the circumstances of each case.”

“must fairly direct the consideration of the jury to the matters raised by the accused in his defence.”

140 The Crown also drew attention to Kim Williams v R [1999] NSWCCA 9; (1999) 104 A Crim R 260 at [37], where Wood CJ at CL (with whom Spigelman CJ and McInerney J agreed) said:

Crimes Act

141 As Condon makes clear, when section 405AA Crimes Act (or, now, section 161 Criminal Procedure Act) relieves the judge of a positive obligation to summarise the evidence if the circumstances of the particular trial make that not necessary, it does not relieve the judge of the obligation to put the case of the accused to the jury, and instruct the jury about how the law applies to that case. The way in which the accused’s case is put to the jury must make it clear that the onus of proof remains on the prosecution, but the case must still be put.

142 Here, there was neither a putting of the defence case to the jury, nor an application of the law to that case. However, even when asked if there were any supplementary directions requested, counsel for the appellant at the trial did not ask for this deficiency in the summing up to be remedied. Rule 4 of the Criminal Appeal Rules says:

“No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission or decision by the party appealing or applying for leave to appeal.”

143 In Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13], Giles JA said:

R v Abusafiah

R v Tripodina

‘… It is the duty of counsel appearing at the trial to take objection to matters which, in their view, are irregular, or which might be unduly prejudicial to their client, and in particular to raise, in relation to the summing up, any matters which the trial judge may have overlooked or which, in their view, he has put erroneously.’

A failure by counsel to perform this duty may be explicable because:

(a) he overlooked the point or was unaware of the law on the subject;

(b) he deliberately said nothing hoping to gain a tactical advantage at a later stage; or

R v Tripodina

R v Jeffrey

R v DH

‘… unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level.’”

144 An example of an irregularity that goes to the root of the proceedings, and hence is such that a conviction cannot be saved by an application of Rule 4, is the failure of the judge to direct the jury about an essential element of the Crown case: Ward v R (1996) 88 A Crim R 159 at 164.

145 No explanation was provided, at the hearing of the appeal, as to why the objections were not taken at trial. Counsel for the appellant at the trial was an experienced criminal lawyer. Those two matters are ones that frequently count against leave being granted under Rule 4. Even so, the deficiency in the summing up in the present case is, in my view, one that is such a departure from the essential requirements of the law that it goes to the root of the proceedings. There are repeated statements of high authority that the defence case must be put to the jury, and the jury must be instructed about how the law applies to that case.

146 It follows that the summing up had such a deficiency that leave should be granted under Rule 4, and the conviction should be quashed.

147 Mr Odgers’ submission that the judge made no reference to the evidence of Mr Davison, Ms Rice and Mr Hampson is not strictly correct, in that the judge mentioned their names in the course of a listing of all the witnesses in the case, but is correct in the sense that the judge said nothing about the substance of their evidence. This is one of several more specific criticisms that Mr Odgers made of the failure of the judge to refer to particular pieces of evidence that the jury might regard as weaknesses in the Crown case. In the light of section 161 Criminal Procedure Act, a trial judge has a significant discretion about the extent to which evidence needs to be summarised. While there are circumstances in which this court might decide that the failure of a trial judge to refer to certain items of evidence, or to relate certain items of evidence to the accused’s case, was so serious that the judge could not have validly exercised his or her discretion under section 161, it is not necessary to decide whether the present case is such a case. That is because the failure to put the accused’s case to the jury at all, and to apply the law to that case, is a sufficient reason why the conviction cannot stand.

148 There remains a question of what order is the appropriate one to make. The Appellant has been in custody since 14 December 2007. He was sentenced on 15 January 2008. His sentence was to five years imprisonment, dating from 14 December 2007, with a minimum period in custody of three years, and disqualification from holding or obtaining a licence for a period of five years from 31 October 2007 to 30 October 2012. Thus he has now served a little less than half of the minimum period in custody, and a little more than a quarter of the total head sentence. In light of those facts, and of the first and third grounds of appeal not having been upheld, this is not a case in which it would be appropriate to quash the conviction without making an order that there be a new trial.

149 There was another charge against the Appellant concerning which the judge imposed a penalty at the same time as sentencing the Appellant for the offence of driving in a manner dangerous causing death. The penalty imposed was of disqualification for a period of two years concurrent. It is inappropriate to give any more details concerning that charge in this judgment. There has been no appeal relating to that other charge. Quashing the conviction on the charge of driving in a manner dangerous causing death will not have any effect on the penalty concerning that other charge.

150 The orders I propose are:

1. Quash the conviction of the appellant on the charge of driving in a manner dangerous causing death.

151 GROVE J: I agree with Campbell JA.

152 HOWIE J: I agree with Campbell JA.

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Citations

Wong v R [2009] NSWCCA 101

Most Recent Citation

Wong v The Queen [2011] NSWCCA 94

Cases Citing This Decision

11

FH v Regina [2014] NSWCCA 231

Trevascus v R [2021] NSWCCA 104

Keen v R [2020] NSWCCA 59

Cases Cited

16

Statutory Material Cited

5

R v Bikic [2002] NSWCCA 227

R v Katsidis; ex parte A-G (Qld) [2005] QCA 229

Ratten v The Queen [1974] HCA 35

CITATION:	Wong v R [2009] NSWCCA 101
HEARING DATE(S):	16 December 2008
JUDGMENT DATE:	15 April 2009
JUDGMENT OF:	Campbell JA at 1; Grove J at 151; Howie J at 152
DECISION:	1. Quash the conviction of the appellant on the charge of driving in a manner dangerous causing death. 2. There be a new trial.
CATCHWORDS:	CRIMINAL LAW – evidence – admission of new evidence on appeal – whether or not it was open for the jury to be satisfied beyond reasonable doubt that the accused was guilty when new evidence contracted the testimony of one eyewitness – whether contradictory witness testimony raises reasonable doubt that the accused was not guilty – whether new evidence is likely to lead to acquittal or a significant possibility of acquittal - CRIMINAL LAW – trial – direction to the jury – failure by trial judge to put the defence case to the jury – whether trial judge is required to put case to the jury in light of section 161 Criminal Procedure Act 1986 – distinction between obligation to summarise evidence and obligation to put the defence case to the jury - CRIMINAL LAW – trial – Rule 4 Criminal Appeal Rules – whether leave should be granted by the Court when no objection to the trial judge’s summing up was taken at trial – whether a failure to put the defence case to the jury is such a departure from the essential requirements of the law that it goes to the root of the proceedings - CRIMINAL LAW – appeal and new trial – whether an order for retrial should be made when the accused has served approximately one quarter of the total head sentence, and less than half the non-parole period
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Appeal Rules Criminal Procedure Act 1986 Criminal Procedure Legislation (Amendment) Act 1990
CATEGORY:	Principal judgment
CASES CITED:	Alford v Magee (1952) 85 CLR 437 Cleland v The Queen (1982) 151 CLR 1 Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 Kim Williams v R [1999] NSWCCA 9; (1999) 104 A Crim R 260 M v The Queen (1994) 181 CLR 487 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 R Katsidis; Ex parte AG (Qld) [2005] QCA 229 R v Abbas [2006] NSWCCA 331 R v Bikic [2002] NSWCCA 227 R v Meher [2004] NSWCCA 355 R v Zorad (1990) 19 NSWLR 91 Ratten v R (1974) 131 CLR 510 RPS v R [2000] HCA 3; (2000) 199 CLR 620 Ward v R (1996) 88 A Crim R 159
PARTIES:	Thomas See Yue Wong (Applicant) The Crown
FILE NUMBER(S):	CCA 2008/486
COUNSEL:	SJ Odgers SC (Appellant) D Arnott SC (Crown)
SOLICITORS:	Legal Aid Commission (Appellant) Solicitor for Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0281
LOWER COURT JUDICIAL OFFICER:	Williams DCJ
LOWER COURT DATE OF DECISION:	15/1/08