CRIMINAL LAW - Sentence - Applicant re-sentenced due to successful appeal against conviction - Same sentences imposed on remaining counts.

PRACTICE AND PROCEDURE - Appeal - Substantial portion of non-parole period served - Verdict of acquittal entered.

1 The applicant, Shaun Ian Guthridge was presented on counts of culpable driving (count 1), failing to stop a vehicle after an accident (count 2) and failing to render assistance after an accident (count 3). He was convicted by a jury on the alternative offence to count 1 (dangerous driving causing death) and on the other two counts. After hearing a plea in mitigation of sentence, the judge sentenced him as follows:

2 This amounted to a total effective sentence of 3 years and 6 months' imprisonment. His Honour ordered a non-parole period of 2 years and 6 months and declared that the applicant had spent 56 days in pre-sentence detention.

3 The applicant sought leave to appeal against his conviction for dangerous driving causing death and against his sentence. On 25 March 2010 the Court of Appeal ordered that leave to appeal be granted and the conviction for dangerous driving causing death be quashed. Given that the applicant had served about approximately 1 year and 11 months in custody, the Court ordered that a verdict of acquittal on that count be entered.[1] The orders cancelling the applicant's licences and permits to drive and disqualifying the applicant from obtaining any such licence and permit for a period of four years under s 61(1) of the Road Safety Act 1986 were confirmed.[2] The applicant was re-sentenced to 12 months' imprisonment on each of counts 2 and 3, to be served concurrently, resulting in a total effective sentence of 12 months' imprisonment. These are our reasons for making those orders.

4 Guthridge and another man, Adrian Kevin Roast, were driving north along Sydney Road (or the Hume Highway) in separate vehicles on 5 December 2005, around midday. A young woman, Sharn Lesley Kelly, was attempting to make a right hand turn from Lydia Avenue onto Sydney Road, when her car was hit by Roast's car. She died from the injuries sustained in the collision.

5 Although the men did not know each other, the Crown alleged that they had agreed to participate in a race along Sydney Road, which involved driving at a high speed in an industrial and residential zone, weaving in and out of traffic and failing to keep a proper look-out, and resulted in the collision causing the victim's death. Although it was Roast, who collided with the victim's car, the Crown case was that by becoming involved in a race with Roast, the applicant had acted in concert with Roast or alternatively had aided and abetted Roast and that they were therefore both criminally liable for the death of the victim. The applicant's driving was thus said to be a substantial and operative cause[3] of the victim's death.

6 By engaging in the race, it was alleged that the applicant had agreed or encouraged Roast to drive dangerously and collide with the victim's car and '[i]t was just a matter of fortune that Guthridge's car missed Ms Kelly's car and that Roast's car collided with hers'. If Roast was convicted of dangerous driving causing death, rather than culpable driving, it was said that the applicant would be liable for that offence, on either one of these bases.

7 The defence case was that the collision was caused by Roast's dangerous driving and that there was no basis on which the applicant could be held criminally liable for Roast's acts. It could not be established beyond reasonable doubt that the applicant and Roast were racing. Even if the applicant was driving the Nissan Pulsar, observed speeding by a number of Crown witnesses before the collision, he did not act in concert with Roast because there was no agreement or understanding between him and Roast to engage in a race. Nor could he be found criminally liable on the basis that he had aided and abetted the principal offender. Even if he drove dangerously himself, that behaviour could not be regarded as having encouraged Roast to drive in a manner sufficient to give rise to criminal liability for the offence of culpable driving, or for dangerous driving causing death.

8 Leave was given to the applicant to add ground 8. Ground 8 alleged that the judge had misdirected the jury on the elements of the offence of dangerous driving causing death, by failing to direct them that:

to establish dangerous driving -

there had to be proved a 'serious breach of the proper conduct' expected of a driver in his circumstances;

the risk created by the departure must be one of 'serious injury or death'; and

the departure had to be sufficiently serious to warrant criminal punishment.[4]

9 We consider that this ground is made out. The trial judge directed the jury that this offence required proof beyond reasonable doubt that the accused was driving a motor vehicle, that he was driving dangerously and that his dangerous driving caused the victim's death. He then said:

The second element is that the prosecution must prove that the particular accused was driving dangerously. That is that he was not properly controlling his vehicle, thereby creating a real risk that somebody would be hurt. This element will only be met if you find that either the particular accused's manner of driving or his speed of driving was dangerous to the public. Manner of driving includes all matters concerned with the management and control of the vehicle such as the accused's technical driving skill and the condition of his vehicle. The law says that the risk of harm created by the accused's driving must have been greater than the risk of harm ordinarily associated with driving. So it would not simply be, for instance, careless driving on the road. This recognises the fact that driving is always a risky activity. Even if a person drives perfectly there is a change [sic] that he or she will have an accident and hurt somebody.

As you will be aware, people do not always drive perfectly. Even if the best drivers occasionally lose attention for a moment or make minor mistakes, increasing the risk to other road users, these ordinary risks of the road are not the focus of this element. For this element to be satisfied the accused must have driven at a speed or in a manner that has significantly increased the risk of harming others. This could be because it increased the likelihood of a collision or because it made it more likely that any injury suffered in a collision would be serious. For this element to be satisfied you do not need to find that a particular accused's driving put a specific identifiable person at risk of harm such as the victim. So this is an element which is not only related to putting at risk at the victim [sic]. It will be sufficient if you find that any actual or potential road users, including a particular accused's own passengers, would have been put at real risk by his speed or manner of driving. You also do not need to find that a particular accused realised that he was driving dangerously.

This element will be satisfied if a reasonable person in his situation would have considered his speed or manner of driving to be dangerous regardless of what he himself believed. So it is an objective test of what the reasonable person would think.

10 His Honour then sought to distinguish the offence of dangerous driving causing death from the offence of culpable driving:

While this test for dangerous driving is similar to the test for culpable driving there are two important differences that reflect the fact that culpable driving is the more serious offence. First, while the test for dangerous driving requires the accused to have driven in a way that significantly increased the risk of harming others, there does not need to have been a high risk of death or serious injury; that is only a requirement for culpable driving.

Secondly, unlike the test for culpable driving, the test for dangerous driving does not require you to consider whether the driving is deserving of criminal punishment which you will remember was one of the elements that needed to be satisfied for culpable driving. The second element for dangerous driving will be met as long as you find that the accused drove in a speed or manner that was dangerous to the public. In determining whether a particular accused's driving was dangerous you must once again consider all of the circumstances in which he was driving and I have already outlined these for you and I am not going to repeat them.

As with culpable driving causing death, you must not assume that simply because there was a collision, a particular accused's driving must have been dangerous. As I have told you genuine accidents happen for which no-one will be criminally liable. Similarly, if you find that the accused was driving above the speed limit, that does not necessarily mean that he was driving dangerously. It is merely one factor to take into account. Similarly, if you find that the accused was driving within the speed limit, that does not necessarily mean that he was not driving dangerously. It is merely one factor for you to take into account ...

The second element for this offence will only be met if you are satisfied beyond reasonable doubt that a particular accused drove at a speed or in a manner that created a real risk of danger to the public. (Emphases added.)

11 This appeal was heard a few days before the decision of this Court in R v De Montero,[5] which now sets out the matters to be dealt with in a direction to the jury where a count of dangerous driving causing death is to be considered. This makes it unnecessary to deal in detail with the submissions made by the applicant and the Crown as to the different views expressed in earlier decisions as to the elements of the offence.[6]

12 In De Montero the Court (Ashley, Redlich and Weinberg JJA) said that:

The guidelines cover the nature of the danger and the degree of risk which it creates. It is the minimum conduct sufficient to establish the offence of dangerous driving. It is of course a question for the individual trial judge as to how the matters are expressed. What is clear is that they should not be considered as some form of mantra that must be recited verbatim.

It must be made clear to the jury, in appropriate language, that before they can convict of dangerous driving, they must be satisfied:

1. That the accused was driving in a manner that involved a serious breach of the proper management or control of his vehicle on the roadway such as to merit criminal punishment. It must involve conduct more blameworthy than a mere lack of reasonable care that could render a driver liable to damages in civil law.
2. That the breach must be so serious as to be in reality, and not just speculatively, potentially dangerous to others who, as members of the public, may at the time be upon or in the vicinity of the roadway.
3. That the manner of driving created a considerable risk of serious injury or death to members of the public.
4. That the risk so created significantly exceeded that which is ordinarily associated with being on or near a highway.
5. That in determining whether the manner of driving was 'dangerous' the test is an objective one. Would a reasonable driver in the circumstances of the accused have realised that the manner of driving involved a breach of the kind discussed in paragraphs 1 and 2, and also gave rise to the risk identified in paragraphs 3 and 4.

In any case where dangerous driving causing death is left as an alternative to culpable driving, or where charges of dangerous driving causing serious injury and culpable driving are tried together, the offence of dangerous driving must be adequately distinguished from culpable driving. The jury should further be told that dangerous driving, though a serious offence, involves conduct which is less blameworthy than culpable driving. It should be told that while dangerous driving necessarily involves criminal negligence, it need not, like culpable driving, be grossly negligent, but as stated above, it must involve a serious breach of the proper management or control of the vehicle on the roadway. Unlike culpable driving it does not require proof of a high risk of death or serious injury, but rather only a considerable risk thereof.[7]

13 In De Montero the trial judge first directed the jury as to the level of negligence sufficient to amount to culpable driving in the terms required by R v De'Zilwa.[8] He differentiated between the level of negligence necessary for culpable driving 'namely a failure "unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of this case", [and] the duty of every person to take reasonable care for the safety of others'.[9] He emphasised that the offence of culpable driving required

the Crown [to] show that the riding in this case was a gross departure from the standard of care, a great falling short of that standard of care, which a reasonable person would have exercised in the circumstances, and involved the high risk of death or serious injury would follow.[10]

14 The judge in De Montero then directed the jury on the alternative count, stating that the question whether the driving was dangerous was to be determined objectively. He continued as follows:

The [crime is] committed by the act of driving or riding in a manner which any reasonable person in the situation of the rider would recognise as dangerous in the sense that it involved a risk of serious injury or death to others is one which exceeds the ordinary risks of the road and amounts to a real danger to the public. Ordinary risks of the road include those arising from the sort of faulty driving and lack of care which may be expected due to human frailty from time to time from ordinary drivers or riders.

The sort of driving or riding which constitutes this crime is more serious than that. It is driving or riding which a reasonable person in the situation of the rider would understand to be such as would give rise to a serious risk of death or injury to members of the public, going beyond the ordinary risks of the road. It is driving or riding which is therefore fit to be regarded as a serious crime.[11]

15 In De Montero, the Court of Appeal considered that the trial judge's reference to 'a serious risk of death or injury to the public, going beyond the ordinary risks of the road'[12] was sufficient to bring home to the jury that for the offence of dangerous driving causing death, the degree of risk must exceed the ordinary risks of the road.[13] The Court considered that the jury direction as a whole had adequately distinguished between

(1) the departure from the proper standard of care which may be regarded as an ordinary risk of the road, (2) driving in a manner dangerous to the public and (3) the gross negligence required for culpable driving.[14]

16 In the case before us his Honour correctly directed the jury that the risk of harm created by the applicant's driving 'must have been greater than the risk of harm ordinarily associated with driving'. No contrast with civil liability was made in the jury direction which was upheld in De Montero. Although it would have been preferable for the trial judge to have contrasted criminal liability with the negligence which could render a driver liable for damages in civil law, having regard to the charge as a whole, the fact that he did not do so did not give rise to appellable error.

17 The trial judge did not say that the breach must be so serious 'as to be in reality, and not just speculatively' dangerous to other road users, or that the driving must create a 'real and appreciable risk'. His Honour satisfied this requirement by instructing the jury that it had to be satisfied that the applicant drove at a speed or in a manner that created a real risk of danger to the public. When the entirety of the charge is considered, neither of these omissions should be viewed as an appellable error.

18 However his Honour also directed the jury that 'while the test for dangerous driving requires the accused to have driven in a way that significantly increased the risk of harming others, there does not have to have been a high risk of death or serious injury; that is only a requirement for culpable driving' and said that, unlike the situation for culpable driving, it was not necessary for the jury to be satisfied that the driving merited criminal punishment.

19 In conformity with the principles stated in De Montero, it must be concluded that the jury direction was inadequate, because it did not sufficiently bring home to the jury the level of dangerousness which must be demonstrated before a person could be convicted of the offence. The combination of his Honour's directions that there did not have to be 'a high risk of death or serious injury' and that it was not necessary for the jury to be satisfied that the driving merited criminal punishment, diluted the charge in a manner which was inconsistent with the requirements laid down in De Montero. It follows that the appeal against conviction must be allowed.

20 Because ground 8 is made out, the resolution of appeal against conviction does not require consideration of other grounds of appeal. However, because these grounds concern questions which may arise in future trials we now turn to grounds 1, 2 and 4. These grounds (particularly grounds 1 and 2) concern the applicability of principles of concert or aiding and abetting in the present circumstances. Is a person who races against or is otherwise engaged in a dangerous activity on the road with a principal offender, to be held complicit with him, where the principal offender's driving directly causes death or serious injury to a third party?

21 Grounds 1 and 2 allege that the verdict of guilty on the count of dangerous driving causing death was unsupported by evidence, or was contrary to the weight of the evidence. Counsel submitted that there was insufficient evidence to permit a jury to infer beyond reasonable doubt that the men were involved in a race when the collision occurred. Further, it was submitted that even if the men were racing when Roast's car collided with the victim's car, a jury could not find beyond reasonable doubt that the applicant was criminally liable for the death of the victim on the basis of complicity.

22 We now turn to the evidence relating to the applicant's participation in the events which culminated in the victim's death.

23 The applicant was driving a silver Nissan Pulsar and had a male and a female passenger in his car. Roast was driving a blue Holden VL Commodore sedan and had his 11 year old brother in the vehicle with him.

24 The car driven by the applicant was a hatchback with large shiny chrome wheels, an after-market muffler and slightly tinted windows. A large silver coloured tachometer was attached to the right side of the dashboard. P-plates were displayed on the windows. The car did not have a spoiler or any stickers on the rear window (except for the P-plate). Blue zigzag type stickers were affixed to the sides of the car.

25 The Crown called six witnesses - Tracey Korras, Goran Vukojevic, Lina Arena, Fawaz Saraya, Ahmed Saraya and David Faglioni - each of whom saw both the Commodore driven by Roast and a Nissan Pulsar or 'a silver car'. Most of the witnesses referred to features which corresponded with the description of the car driven by the applicant, though some mis-described the make of the car. As I explain below, only Ms Korras described features that did not match the applicant's car.[15]

26 In cross-examination, defence counsel challenged the witnesses' descriptions of the 'silver car' and put to a number of them that they had described the car differently in the initial statement that they made to the police. These witnesses were also challenged on their evidence about the speed at which the car allegedly driven by the applicant was travelling, before Roast collided with the victim's car.

27 Ms Korras was driving north along Sydney Road and saw a silver car 'in her rear vision mirror'. She later changed lanes and noticed the car 'changing lanes, weaving through the traffic'. Although she described the car as having a tachometer and displaying P-plates (both features of the applicant's car), she also said that it had a spoiler and Tweety Bird sticker affixed, neither of which were features of the applicant's car. Senior Constable Walter Siebold and Acting Sergeant Jamie Mitchell later gave evidence that after the accident she had described the car as being a Nissan Skyline.

28 Ms Korras said she stopped in the middle lane at the traffic lights at the intersection of the Hume Highway with Bolinda Road and noticed the same silver car on her left and a blue Commodore behind it. Both cars had tachometers installed. Bolinda Road was 1500 metres from the scene of the accident.

29 The silver car was jerking forward past the stop line and the Commodore was also moving forward. The silver car (which Ms Korras later said was a Pulsar hatch) moved so it was half a car's length past her car. When the traffic lights turned green, she began moving before the two cars as there was a two second delay before they took off.

30 While accelerating and in second gear,[16] the Commodore overtook her car without indicating, nearly clipping the front of her car and moving into the middle lane to be side by side with the Pulsar. The two cars then pulled away. Ms Korras said that they 'went flat out' and 'took off at a ... fast speed' into the clear traffic and estimated that they were driving at over 100 kilometres per hour. The speed limit on the road was 80 kilometres per hour. They continued travelling at a fast pace until she lost sight of them at the Sylvania Hotel, just before the McDonald's restaurant.

31 The next she saw of the Commodore was at the crash scene, where she stopped to provide assistance to the driver of that car, Roast. The Commodore was on a median strip facing south. The front of the car was smashed and the windscreen broken. She did not see the Pulsar at the scene. The police then arrived and took a statement from her about an hour later.

32 Counsel for the applicant cross-examined Ms Korras on a short statement she made to the police at the accident scene and a second statement she made 15 days later. Counsel for the applicant put it to her that in her first statement she had said there were four people of Middle Eastern appearance in the Pulsar, but that in her second statement she said there were at least three people and did not refer to their ethnicity. It was put to her that at the committal she said that the change was made because 'I was told by the police' that they had found the drivers. At the trial she said that she didn't 'know' or 'recall' why she had not mentioned that the men were of Middle Eastern appearance in her second statement.

33 Counsel for Roast cross-examined Ms Korras on her description of the cars involved in the accident. That cross-examination was based on notes taken by police who attended the accident as to what she had said to them.

34 Counsel put it to Ms Korras that she had previously told the police who attended the accident that the car was a Nissan Skyline, rather than a Nissan Pulsar. She said she did not know whether she had described the car as a Skyline or whether a Skyline was a Nissan car. She said she recollected the car as having a Tweety Bird sticker, a hot pink sticker and a spoiler on the boot.

35 In re-examination, counsel for the Crown attempted to clarify when Ms Korras was passed by the two cars. He read out the following statements from her second police statement, with which Ms Korras agreed:

The Pulsar eventually took off from the lights normally and it passed me in the left lane was I was going through the gears.

Although it took off normally, it was going faster than me because it created a gap between itself and the front of my car pretty quickly.

36 Mr Vukojevic was driving north along Sydney Road when he was overtaken by a light coloured car and Roast's car. He was driving a car with an empty trailer attached and had his wife, Ms Arena, in the car with him. He had entered Sydney Road from Fabio Court, looking to the right to check for oncoming traffic. Fabio Court was 710 metres from the scene of the accident. Mr Vukojevic did not see the Commodore or the Pulsar at that time.

37 He was driving at 80 kilometres per hour in the middle lane of the three lanes when he looked in the rear view mirror and saw two cars, one dark coloured and the other light coloured, approaching him. Mr Vukojevic said that the two cars 'were coming up behind me, and before I knew it they were next to me, and also the sounds of the engine was very - roaring, and they came up very quickly and passed very quickly'. The cars passed him on either side. He estimated that they were travelling at about 100 kilometres per hour.

38 Once they overtook Mr Vukojevic, the two cars were 'weaving in and out of traffic, in and out of lanes'. He described the traffic as moderate. He said that their speed seemed to be increasing as they were pulling away from him faster than they had approached him. He observed that both cars were displaying P-plates. He did not see them using their indicators at that time.

39 At the crash scene he saw a dark blue Commodore, which looked like one of the cars he had seen earlier, on the median strip facing south, the opposite direction it had been heading. He did not see the other car that had overtaken him with the blue Commodore.

40 Mr Vukojevic was cross-examined by the applicant's counsel on the statement he made to police on 27 or 28 December 2005. It was put to him that he had told the police he saw a blue Commodore racing 'a silver Commodore' and in response he said he did not recall.[17] He said he did not discuss the incident with his partner or anyone else.

41 Counsel for Roast put to Mr Vukojevic that the two cars had not overtaken him by a speed as great as he had believed because he was pulling out from Lydia Avenue and would have been in the process of accelerating. Mr Vukojevic responded that they overtook him when he was travelling at 80 kilometres per hour and that he knew this because he looked at his speedometer when this occurred.

42 Ms Arena's evidence was similar to that of Mr Vukojevic. She said that Mr Vukojevic was driving at about 80 kilometres per hour, having turned out of Fabio Court. She said that '[i]t wasn't too long after that I noticed two cars, one on the right and one on the left, and they passed us very fast, going very, very fast'. In cross-examination she said that she could not estimate the precise speed at which the cars were travelling but 'I know what 100 ... is like in a vehicle and I felt that they were going more than 100 ...'.

43 The dark car passed on the right and the silver car on the left. Apart from their colour and the fact that both cars were displaying P-plates, she did not identify any other features of the cars. The cars were even with each other when they overtook. After passing her car, the dark car moved into the middle lane, next to the silver car in the left lane. Seconds later she saw the smoke from the accident scene. She did not see the silver car at the scene of the accident.

44 Counsel for the applicant questioned Ms Arena about the features of the cars. She did not recall whether they had spoilers or seeing a large Tweety Bird sticker on the rear of the Pulsar. (Neither of these were features of the applicant's car).

45 Fawaz Saraya was sitting in his car with his brother, Ahmed Saraya, in the car-park of a McDonald's restaurant facing east onto Sydney Road. The restaurant was located 350 metres from the scene of the accident. He said he had an unobstructed view of about 100 metres to his right of the oncoming traffic travelling north and 180 metres to his left. The traffic was light.

46 He looked to the right after hearing 'two really loud sounds' coming from that direction. He saw 'two cars come side by side', both travelling at 'approximately about 120-130 kilometres per hour'. He recognised the cars as being a Nissan Pulsar, from the 'SSS badging', and a VL Commodore, from its likeness to a VL Commodore owned by his cousin. There was a passenger in the Commodore.

47 The Pulsar was a 'white, silverish pearl colour' with tinted windows, '15 inch rear mag wheels' and an after-market exhaust. (These were features of the applicant's car). The Commodore was a dark blue colour with silver lining on the bottom, did not have mag wheels and was displaying P-plates. The Pulsar was in the lane closest to him (i.e. the left lane) and the Commodore the middle lane.

48 After the cars passed his position, he watched them for a further 180 to 200 metres or about 20 seconds. He observed that '[t]hey kept on pulling back and forth like they kept on - one in front of the other' and that they 'kept on pulling away from each other'. He said that the driver of the Commodore turned his head to the left 'to probably see if he was in front or not'.

49 He left the car park two to three minutes later and drove up the road to make a U-turn. He then saw the Commodore on the median strip facing the opposite direction to which it was earlier travelling. He stopped his car to see if the driver was all right. On the road closest to where the Commodore was, he noticed skid marks approximately 50 metres long.

50 Ahmed Saraya looked up at the cars after his brother pointed them out to him. He heard a 'loud revving noise' coming from the cars which were about 50 metres away and 'travelling at a minimum of 120, 130 kilometres [per hour]'. His estimate was based partly on his previous experience of watching car races at Calder Park four to six times a year. It was put to him in cross-examination that he had told a police officer he had spoken to at the accident scene that the cars were travelling at 100 to 110 kilometres per hour and in response he said he did not recall saying that.

51 The car closest to him was a silver or grey Nissan Pulsar with 'mag wheels and a sticker on the flat back panel'. It was hard to tell what the sticker depicted because it changed colours. The Commodore was in the middle lane and had '[n]o rims, no ... pictures'. He could not recall its colour. He had an unobstructed view to the right of about 100 metres and a view of about 20 to 30 metres to the left which was obstructed by a high wire mesh fence. The cars continued at the same speed in the same lanes, until he lost sight of them.

52 Mr Faglioni was standing 110 metres from the scene of the accident on the east side of Sydney Road and saw the Commodore and the Pulsar travelling together before the accident. His attention was drawn when he heard the 'loud revving of an exhaust of a car'. He said he first saw something moving between the trees and then saw a dark green or blue Commodore emerge from a second group of trees about 300 to 400 metres away from him, travelling northbound. He considered himself to be familiar with Commodores through his job and identified the car as a mid 80s Commodore and either a VL or VK model. He said the Commodore was travelling very quickly and estimated its speed at between 130 and 140 kilometres per hour.

53 He then saw the victim's car coming out of a cross street. At that point, he also saw a silver or white 'late model ... Nissan Pulsar, late 90 model Nissan Pulsar' travelling side by side with the Commodore. He switched glances between the Commodore and Pulsar and the other car coming across the road, and swore aloud in fear. The Commodore and Pulsar were travelling at a constant speed, between 130 to 140 kilometres per hour. It was a split second after the Commodore and Pulsar passed the witness that he heard the cars braking. He lost sight of the Pulsar but saw the Commodore angle to the right lane before beginning to skid. Smoke started to come from the Commodore's tyres, causing him to lose sight of the Pulsar. The Commodore then collided with the white car.

54 In cross-examination by counsel for the applicant, Mr Faglioni said that his vision was initially obscured by the trees, but that as the Commodore moved down the road he could see it clearly. He only saw the rear part of the Pulsar up to the rear door and did not observe whether it had a spoiler. He did not see the Pulsar change lanes and lost sight of it at the time the Commodore started to skid.

55 At the accident scene, he spoke to a police officer and said he had seen the collision, but was not asked, and did not mention anything, about the Pulsar.

56 The Crown also called Wassim Gorgius, Waleed Jabou, Sinichi Nakayama, Stephen Bryant, Robert William Bryant, Peter Egan and Corey Daniel Hudson as witnesses. Each of them saw the Commodore before the accident and/or saw the accident but did not see a silver Pulsar. I refer only briefly to the evidence of these witnesses.

57 Mr Gorgius gave evidence through an interpreter. He was overtaken by Roast's car about 108 metres from the scene of the accident (i.e. about the same point in the road as Mr Faglioni) and saw Roast's car hit the victim's car. He estimated that Roast's car was travelling at about 120 kilometres per hour. In cross-examination, he said that he did not recall there being another car beside Roast's car at the point of overtaking or behind it at the point of impact. He also said that after he stopped at the scene of the accident, a little boy said that there was a silver car involved in the accident.[18]

58 Mr Jabou, who was a front seat passenger in Mr Gorgius' car, also gave evidence through an interpreter. He first saw the Commodore when it began skidding to avoid colliding with the victim's car. According to him, the Commodore was travelling 'above the legal speed [limit]'. He did not see another car in the left lane.

59 Mr Nakayama gave evidence through an interpreter, via a video link to Japan. He was travelling south in Sydney Road and saw the accident when he stopped in the right hand lane to make a u-turn. He noticed a car between 100 and 200 metres away. In his evidence-in-chief he said that it was travelling quite fast. In cross-examination by counsel for Roast, he agreed he had told the police that it was driving over 80 kilometres per hour, but that he could not be certain. After about three to four seconds, he heard 'a loud skid noise' and the car collided with another white car which he had not previously seen.

60 Mr Bryant was repairing the winch cable on his truck which was parked on the eastern side of Sydney Road opposite Lydia Avenue. He saw the collision between the Commodore and the victim's car. He said that the Commodore was 'travelling pretty quick'. He could not recall anything about the traffic other than the two vehicles on which his attention was focussed and said that he did not see any other car around the two cars involved.

61 Mr Barlow witnessed the collision from the middle of Sydney Road, where he was waiting to turn right. He heard a loud screeching sound and saw a Commodore skidding. It collided with a white car in between the middle and the right northbound lanes. He said that he did not see any other car around the two cars involved in the collision.

62 Mr Egan witnessed the accident, which occurred close to the front of his workplace on Sydney Road, as he was walking south on Sydney Road during his lunchtime break. Mr Egan heard a 'loud roaring sound' but could not attribute it to any particular car. He then noticed a Commodore driving at an 'excessive speed' about 35 to 40 metres away and realised that this was the source of the noise. After looking away, he heard skidding and looked up to see the Commodore collide with a white car he had previously seen driving towards Sydney Road along Lydia Avenue. He did not notice any other traffic travelling north on the road just before the collision.

63 Mr Hudson was driving north along Sydney Road (about 210 metres from the scene of the accident) when Roast's Commodore passed him and eventually collided with the victim's car. He was in the right lane and he heard a 'noise ... like a jet engine' from a VL Commodore which overtook him at 'roughly, double the speed limit'. In cross-examination by counsel for Roast, he conceded that he could not accurately assess the speed that the Commodore was travelling but in re-examination he said that he had previously observed different vehicles travelling at different speeds, having watched Formula 1 cars and motor bikes racing at Albert Park and Phillip Island, respectively, and watched touring cars. After the Commodore passed his car, he slowed down and focussed on it because it 'shocked' him. He did not see any other vehicle around the Commodore.

64 Senior Constable Ireland and Sergeant Peter Bellion were also called as Crown witnesses.

65 Senior Constable Ireland was stationed at the Wodonga Police Station. He gave evidence that at about 5.30pm on the day of the accident the applicant voluntarily attended the police station. Senior Constable Ireland took notes of the conversation. The applicant said that the purpose for his visit was to report an accident in Broadmeadows in which a person had died and that 'he was wanting to report it in case people were wondering why he'd left'. He observed that when the applicant began talking, he was pale, 'started fidgeting and started to perspire and his voice started to break'.

66 Senior Constable Ireland said that the applicant told him he was driving north along Sydney Road. He repeated what the applicant told him, reading from his notes. A couple of traffic lights after the Western Ring Road, the applicant said he had a truck on one side and a car towing a trailer on the other. Behind him was a car, possibly a Commodore, driven by a 'typical Melbourne driver right up my arse'. Senior Constable Ireland read from his notes: 'Car in front only going about 30 kilometres per hour so got out and around it when I could and kept going. The other car got past when it could and it was right up my arse, then it passed me and took off'. He continued: 'He was doing about 120 kilometres per hour. I know as I was doing 80 to 82 kilometres per hour. I saw a lady in a car on the road. She might have stalled and the car hit her'.

67 He then noticed that the applicant 'started fidgeting more, started perspiring more. He was sort of stepping from side to side'.

68 He asked the applicant how close he was to what happened. The applicant responded that he '[saw] it right in front of me as I nearly ran up the back of him. We all got out and started to walk over to the car and people who had also stopped were there. Someone said she's dead so my mate's girlfriend got really upset and [was] crying so we put her in the car and left. She was so upset, that's why we left. I just thought they might want to know'.

69 Senior Constable Ireland inspected the applicant's car after receiving a telephone call from Acting Sergeant Dean of the Major Collisions Unit. It was a silver Nissan Pulsar and was displaying P-plates. The car had a large silver coloured tachometer and lightly tinted windows. It did not have a spoiler. Blue 'zigzag ... graphic type stickers' were affixed to both sides of the car.

70 He then arrested the applicant and charged him with culpable driving.

71 The applicant was interviewed later that day by Senior Constable Schultz and Acting Sergeant Wilson. The answers he give in the interview were substantially the same as the statements he made to Senior Constable Ireland described above.

72 He said he was driving a light grey Nissan Pulsar and stopped at the traffic lights with a truck to his right and a car towing a trailer, in front of him. He was not sure whether the 'guy that had the collision' or a red car was behind him, but at times assumed that Roast was behind him. He denied that he made eye contact with Roast at the traffic lights, saying that 'I looked in my rear view mirror but I had my sunnies on, anyway, so he wouldn't have known if I was looking at him or not'. He overtook the car towing the trailer and was then himself overtaken by 'the other guy that was in the collision'. His reason for overtaking the car towing the trailer was because he was 'stuck behind that car for a while and he wasn't doing the speed limit'. He said that the vehicle involved in the collision was a dark 'bluey-black' VK Calais model Commodore.

He rushed around - I don't know where he was. Like, he - he might have been behind me at the traffic lights. And the - car that was in front of me - and then there was a truck. So, I went - once I could get through, I went out and around the car, accelerated up to the speed limit and then I was gonna turn back in when the Commodore come round me, come right up my arse and then ... the back of me and took over me.

And I was probably 20 metres in front of him before he come [sic] flying up - like - like, up behind me, so - then I saw him come up behind me and then must have moved into the other lane, I didn't see him for a second, then he just flew past me. So he must've just dropped back down, accelerated or something, and within no more than 5 seconds, he would've been, probably 20 to 30 metres away from me ...

75 The applicant said he 'accelerated hard to get up to 80 [kilometres per hour]' and was not speeding. Roast was 'flying'; travelling at between 100 and 200 kilometres per hour and 'pulling away' from the applicant. He said that Roast's car was about 20 to 30 metres away when it began moving into the right lane. He then saw the victim's white car and 'tried to slow down' to avoid hitting it. Roast's car was about 20 to 30 metres away when it began moving into the right lane. Roast's car hit the white car. The applicant then 'slowed right down and pulled over'.

76 The interviewer asked the applicant how his car could have been only 30 metres behind Roast's car if the applicant had been travelling at 80 kilometres per hour and, the applicant explained:

He must be picking up speed, he must be opening up that distance ... Once he probably figured that I wasn't gonna go with him, he probably slowed down ...

He probably figured because I was a P-plater as well, he probably thought that ... I was gonna go with him. Like, go - like, chase him. Try and keep up with him or whatever. But I was more thinking of the fuel to get home with the money I had, because if I rev out the car ... fuel, as you - as you know.

77 He denied that he had been travelling at the same speed as the Commodore and said that if that were so, he 'probably would've ran straight up his arse ... at the crash'.

78 He also tried to explain what might have been going through Roast's mind:

Probably wanted to prove his Calais is better than mine. I don't know. I couldn't tell you. Well, he's got a V6, I've got a V-4 cylinder. So, straight away, I thought I'm at a disadvantage, anyway, so there was no point in it. And plus, I had my best mates in the car, so I wouldn't've [sic] done anything stupid to harm them.

79 It was put to him that he and Roast had decided to have a race and he again said 'No. I wouldn't do that with mates in the car for starters, and plus I have a 4 cylinder'.

80 Sergeant Peter Bellion and Sergeant Gregory Dean were police members stationed with the Major Collision Investigation Unit at the time the accident occurred.

81 Sergeant Peter Bellion was the collision reconstruction team leader for that unit. He inspected the accident scene, and observed that Roast's Commodore had left 43.1 metres of pre-impact skid marks. His analysis of the skid marks indicated to him that prior to skid marks being left, the Commodore 'was in an orientation where it was steered slightly to the right of what would be when it was travelling parallel to those traffic lights, then the driver's applied the brakes heavily and the vehicle's gone into a skid as a result of that heaving [sic] braking force being applied and then from then on it skidded in practically a straight line through to where the impact occurred opposite Lydia Avenue'.

82 Sergeant Bellion calculated that the speed of the Commodore at the start of the skid marks was 122 kilometres per hour, and probably 130 kilometres per hour, given the slowing of the vehicle that would have occurred before the skid marks were made. He said that if the Commodore had been travelling at the speed limit of 80 kilometres per hour it 'would have ... well and truly stopped prior to the impact'.

83 In cross-examination by counsel for Roast, he conceded that if he allowed for variations in the speed that each tyre was travelling at the time of the skid, the speed of the Commodore at the start of the skid marks could have been as low as 119 kilometres per hour, but this still did not take account of any slowing of the car before it began skidding.

84 Sergeant Dean interviewed Roast with Senior Constable Ryan at the Royal Melbourne Hospital on 7 December 2005.

85 Roast said he did not remember if there were any other cars around him while he was driving on Sydney Road before the accident. He did not recall seeing a Nissan Pulsar and did not know anyone who owned a Nissan Pulsar. He said he was travelling at 80 kilometres per hour before the accident and knew this because he did not want to risk injuring his little brother or himself.

86 In answer to a question whether he tried to steer the vehicle while skidding, he answered that he tried, but 'couldn't go anywhere [because] there was obviously cars on the left and the right-hand side of me, so I would've caused an even bigger accident. He did not remember what type of cars were around him but said that they were travelling the same speed as him. He denied that he was 'racing or showing off'. He also denied having ever 'drag raced' any of his friends and said he did not have the money to 'write-off the car ... [o]r break any laws'.

Submissions and conclusion on grounds of appeal 1 and 2

87 The first and second grounds of appeal raise two inter-related issues. The first was whether the evidence was sufficient to permit the jury to infer that Roast and the applicant were involved in a race, which was still continuing when Roast collided with the victim's car. The second issue was whether, if they found that the men were racing, it was open to the jury to conclude beyond reasonable doubt that they were acting in concert or that the applicant aided and abetted Roast's dangerous driving, when Roast collided with the victim's car causing her death.

88 So far as the first issue was concerned, counsel for the applicant submitted that the evidence as a whole did not support the inference that the two men were racing when Roast's car collided with the victim's car. Ms Korras' evidence was simply that Roast's car was behind the applicant's car and that the applicant had inched forward at the intersection. It was submitted that the evidence of the other witnesses showed no more than that the driving of the applicant may have had some influence on Roast's behaviour or vice versa. In his police interview the applicant said that he was aware of the other vehicle, but that was all.

89 In his closing address at the trial, defence counsel said that that there was insufficient evidence to justify a finding beyond reasonable doubt that the men were racing. He did not point to any evidence suggesting that, even if they were doing so, the applicant had withdrawn from the race before the collision occurred.

90 The applicant could only be complicit in any offence committed by Roast if the men were still racing when the collision occurred. In our opinion it was open to the jury to reach that conclusion beyond reasonable doubt. As we have concluded that the conviction must in any event be quashed, it will suffice if we refer only briefly to the evidence that supports that conclusion.

91 As we have said, Ms Korras, Mr Vukojevic, Ms Arena and the Saraya brothers described a car similar to that which the applicant drove along the Hume Highway. Ms Korras initially identified the car as a Skyline and described it as having features which were not on the applicant's car (the Tweety Bird sticker and a spoiler). However, she also said that the car had a large tachometer and was displaying P-plates. The applicant's car had both of these features. Mr Vukojevic and his wife, Ms Arena, described the car as a light-coloured or silver car with P-plates on it[19] and the Saraya brothers and Mr Faglioni said it was a Nissan Pulsar.

92 Ms Korras gave evidence that at the traffic lights the silver car appeared to be edging forward and the Commodore was behind it. Shortly after the lights she was cut off by the Commodore which was behind the silver car and both cars travelled side by side at at least 100 kilometres per hour. Mr Vukojevic and Ms Arena described the two cars speeding past in the lanes on either side of them. Mr Faglioni saw the Pulsar next to the Commodore, while both cars were driving at a speed of between 130 and 140 kilometres per hour. The Saraya brothers saw them travelling up the road at a high speed and side by side, and Fawaz Saraya saw the two cars pulling back and forth as they drove along the road.

93 Although some of the witnesses who saw a second car described it as having features different from those of the car driven by the applicant, when all the evidence was taken into account such differences need not necessarily have given rise to a reasonable doubt in the mind of the jury as to the identity of the second car or as to whether the men were racing each other when they drove at a high speed along a highway used by other cars.

94 Our view on that issue is fortified by the fact that the applicant left the scene of the accident shortly after the collision, even though he had seen Roast's car and the collision which killed the victim. His Honour ruled that the Crown could rely on evidence that the applicant left the accident scene as indicating his consciousness of guilt. That ruling was not challenged on appeal.

95 The second question raised by these grounds of appeal was whether it was open to the jury to infer that the men were acting in concert at the time of the collision, or that the applicant aided and abetted Roast to commit the offence of dangerous driving causing death, by participating in a race along a busy highway.

96 We deal first with the issue of whether it was open to the jury to find that at the time of the collision the applicant had an understanding or agreement with Roast that the men would drive dangerously. Counsel for the applicant conceded that in some situations an agreement or understanding to commit a crime could be inferred from conduct. For example, where two men participate in an illegal prize fight, it may be inferred that there was a mutual agreement between them to commit the relevant offence. However he submitted that this principle did not apply in the circumstances of this case.

97 The men did not know each other, did not assemble at a place to participate in a race, did not have any conversation about participating in a race and did not agree to end the race at a particular point. There was no evidence that the men had signed to each other or called out to each other. Even if each was attempting to drive faster than the other, this was an entirely 'impromptu' activity from which no agreement or understanding could be inferred. It followed that the applicant could not be found guilty of the offence of dangerous driving causing death, of which Roast was convicted, on the basis that he had acted in concert with Roast. All the evidence showed was that the applicant may have decided to try to drive faster than Roast. The victim's death was caused by Roast's dangerous driving alone, in which the applicant did not agree to participate.

98 The Crown relied upon the evidence of the Saraya brothers, who were about 350 metres from the point of impact saw the cars travelling at about 120 to 130 kilometres per hour. Mr Faglioni, who was standing about 110 metres from where Roast collided with the victim's car, saw both men's cars travelling together at speed he estimated at 130 to 140 kilometres per hour and braking a split second afterwards, when the Commodore began to skid. It contended that if the cars were travelling at a high speed very shortly before the collision, it was open to the jury to infer that the men had an understanding to race which continued until the collision occurred. If the cars were travelling at 120 to 130 kilometres per hour when seen by Mr Faglioni it would have taken only 3.24 seconds for Roast's car to reach the collision point.

99 The principles which apply in deciding whether two or more people have acted in concert to commit a crime were summarised by the New South Wales Court of Appeal in R v Tangye:[20]

A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances.

...

If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.[21]

100 The agreement or understanding must precede the commission of the actus reus of the offence. As Smith J said in R v Lowery (No 2), '[t]he understanding or arrangement need not be of long standing: it may be reached only just before the doing of the act or acts constituting the crime'.[22]

101 If one person attempts to race another along a busy highway, without observing road rules, there may be circumstances in which it could be found that the participants in the race have implicitly agreed to drive dangerously. If a death occurs as the result of a collision between one of the drivers and another highway user while the understanding or agreement to race is still in force, each of the participants in the race may be held equally liable for culpable driving, dangerous driving causing death, or other relevant offence. In such circumstances, the Crown would not need to prove that those engaged in the race had agreed to cause death, but only that they had agreed to drive dangerously. The fact that the race was 'impromptu' and had no clear finishing point would not preclude a verdict of guilty of dangerous driving causing death, based on their participation in a joint criminal enterprise. Had there been an agreement to commit the offence, the co-offender would be criminally liable, both for the consequences of the crime which the parties have agreed to commit, and for consequences which were not agreed to, but which he or she could have foreseen.[23]

102 We consider it unnecessary to express a view as to whether concert was open in the present case. As we explain below, we consider that in the circumstances it would have been preferable if the Crown case was rested on accessorial liability - namely aiding and abetting. Whether in cases of this sort, concert should be left to a jury will depend upon whether the evidence is sufficient to enable an inference to be drawn beyond reasonable doubt that the drivers had entered into an agreement or an unspoken understanding that they would both drive dangerously and that such an agreement or understanding continued until the collision occurred.

103 We now turn to the alternative basis on which the jury could have held the applicant criminally liable, which was that the applicant aided and abetted Roast. The principles under which a person may be held liable for a crime as an aider and abettor were set out by Smith J in the frequently cited passage in Lowery (No 2).[24] He said that:

Now there is another aspect of the law relating to criminal responsibility which it is necessary for me to tell you about. Even if there is no prior understanding or arrangement that the crime shall be committed a person is guilty in law of a crime committed by the hand of another - another whom the law calls the principal in the first degree - if the person is present when the crime is committed and aids and abets the commission of it. In such circumstances he is called the principal in the second degree and he is equally guilty of the crime with the principal in the first degree. Aiding and abetting in this connexion means doing one or other of these three things while aware that the crime is being committed: first, intentionally helping the principal in the first degree to commit the crime, or, secondly, intentionally encouraging him by words or by your presence and behaviour to commit it, or, thirdly, intentionally conveying to him by words or by your presence and behaviour that you are assenting to and concurring in his commission of the crime. A person present at the scene of the crime and so aiding and abetting a person to commit a crime is in law a principal in the second degree and is guilty in law of the crime committed by the hand of the principal of the first degree. That doctrine applies to murder as it does to other crimes, and the Crown here is entitled to urge on you that even if for some reason you were not satisfied that there was an actual understanding or arrangement between the two accused that the girl should be killed, nevertheless you should at least be satisfied by the evidence admissible against each of the accused that the girl must have been intentionally killed by the conscious, voluntary act of one of them, no matter which, aided and abetted by the other.[25]

104 Mere presence at the scene of the crime is insufficient to support a conviction on the basis of aiding and abetting. In R v Coney,[26] the convictions sustained by spectators at a prize fight were quashed because of the erroneous direction of the trial judge that mere presence equated to aiding and abetting. Coney was distinguished in Wilcox v Jeffrey,[27] a case involving an appellant who attended a jazz concert being given by a saxophonist whom he knew had entered the country illegally. The appellant, who was the owner of a music magazine, was held to have been properly convicted of the immigration offence committed by the saxophonist, on the basis of aiding and abetting because he was not only present at the concert, but paid an admission fee and later published in his magazine an article and photos lauding the saxophonist's performance.

105 More recently, in R v Lam,[28] this Court again made it clear that mere presence of a person at the scene of a crime does not make them criminally liable as an aider and abettor:

The culpability which attracts the operation of the criminal law to an individual designated as an aider and abettor under those principles arises from the fact of his or her presence at the time that the crime is committed and behaviour whilst there and not by reason of any earlier agreement or arrangement with the perpetrator with respect to it. That situation is separately addressed. Whatever uncertainty may exist with respect to the limits of accessorial liability, it is crystal clear that simply being present at the scene of a crime being committed by another is insufficient to render an individual also guilty. Further, it is not enough that the person alleged to be aiding and abetting is present by reason of curiosity, a high level of interest or even because of the presence of strong approval of the principal's conduct. The justification for rendering the individual liable arises from the contribution that he or she intentionally makes to the commission of the crime. This, of course, can take different forms and these are encompassed by the broad descriptive notions of counselling, procuring, assisting or encouraging the principal offender. It is apparent that quite different questions will be thrown up according to the type of contribution alleged and the circumstances surrounding the particular offence. But whatever the form of contribution, in order to become a party to or participant in the commission of a crime by another, an aider and abettor must do something of a kind that can be reasonably seen as intentionally adopting and contributing to what is taking place in his presence. In this sense, the aider and abettor becomes linked in purpose with the principal actor.[29]

106 Counsel for the applicant submitted that the evidence that the applicant was driving at a high speed at the same time that Roast was doing so did not permit the jury to conclude beyond reasonable doubt that the applicant aided and abetted Roast by encouraging him to drive dangerously. While the applicant may have tried to drive faster than Roast, his actions did not encourage Roast to drive fast himself. Hence it was submitted that the learned trial judge had incorrectly told the jury that the applicant could be convicted, either on the basis that he had aided and abetted the principal offender, or on the basis of acting in concert. Counsel for the applicant submitted that it was not open to the jury to convict him on the basis of aiding and abetting. Because the applicant's conviction might have been based on aiding and abetting, rather than acting in concert, he said that the appeal must be allowed.

107 We do not accept that submission. A participant in a two person race is not simply 'present' in the race with the other participant but engages in a process in which each person attempts to outdo the other. Whatever the precise goal of the race between two participants, it necessarily involves a notion of mutuality. Each participant attempts to drive faster than the other. In turn, this may encourage the other participant to attempt to outperform their competitor. It was a matter for the jury whether the applicant's driving encouraged Roast to drive in the manner that he did at the time of the collision.

108 The view we have expressed has been accepted in England.[30] In R v Lee[31] witnesses had seen the appellant and the deceased driving their motor cycles at excessive speeds and doing 'wheelies' before the accident. The deceased was killed when the men collided and the deceased drove into a brick wall. The prosecution case was that the appellant could be convicted of dangerous driving causing death either on the basis that the death was caused by the dangerous driving of both men or on the basis that the appellant's dangerous driving encouraged the deceased to drive dangerously, even though the death may have been directly caused by the deceased hitting the back of the appellant's motor-cycle. The English Court of Appeal upheld the appellant's conviction for causing death by dangerous driving, having accepted that the question for the jury was 'whether each was, by his driving, encouraging the other to drive in a similar manner'.

109 In R v Haynes[32] a number of witnesses observed the deceased and the appellant, driving at high speeds, before one of the men was killed when he lost control of his car. The men did not know each other. The Crown case was that the men were racing each other and that the appellant had aided and abetted the deceased man's bad driving. The Court of Appeal refused to set aside the conviction of the uninjured man for causing the death of the other man by dangerous driving. One of the submissions of counsel for the appellant was that the men might have started off racing but by the time the man who was killed lost control of his car, the appellant had withdrawn from the race. Saunders J, who delivered the judgment of the Court, said that the incident of racing had lasted 'at most a minute. The idea that over part of it the appellant was racing and then withdrew from it towards the end, is in our judgement unrealistic'.

110 Liability on the basis of aiding and abetting was also assumed to apply in R v Milburn,[33] where the person who was killed was a third person who was hit by one of the two men who was racing.

111 We have already said that there was sufficient evidence for the jury to find beyond reasonable doubt that the men were racing, when Roast collided with the victim. We therefore consider that it was open to the jury to have convicted the applicant of the offence of dangerous driving causing death, on the basis that the applicant encouraged Roast to drive dangerously.

112 In our view, where an accused participates in a race on a public road in which another participant in the race directly causes the death of the victim, it is preferable that the Crown present the accused on the basis that he or she aided or abetted the principal offender. Accessorial liability of the non-colliding driver as an aider and abettor does not carry with it the artificiality of reliance on an implied agreement or understanding. It has the further advantage that it would simplify jury directions. The jury would only be required to consider whether they were satisfied beyond reasonable doubt that the actions of the accused encouraged the colliding driver to drive dangerously. As we have already stated, in a case where there is cogent evidence of an agreement or understanding, it will be appropriate for the Crown to rely upon concert.

113 Dangerous driving simpliciter is a summary offence.[34] Thus if the Crown relies upon the accused's dangerous driving as the means by which he encouraged the principal to drive dangerously, it cannot include an alternative count on the presentment alleging dangerous driving simpliciter by the accused. It may be desirable for the Government to consider whether statutory amendment would be desirable to allow this to be done.

114 Before leaving the question of the bases upon which criminal liability of the applicant may be founded, we should refer to the no case submission advanced at trial that the applicant's conduct could not be a substantial and operative cause of the fatal accident as there was no causal link between the applicant's driving and the victim's death. That submission rested upon the proposition that there was no evidence that the applicant's vehicle was in such proximity to the accident as to compel Roast's or the victim's vehicle to be driven in a particular manner. The submission was rejected because the prosecution case rested upon the applicant's complicity in the manner in which Roast drove his vehicle.

115 The arguments on the appeal did not address the question, if the applicant was not complicit with Roast, whether his dangerous driving could be a substantial and operative cause of the accident.[35] The criminal law does not necessarily require that it be the applicant's driving that is the sole, direct or immediate cause of the death. But, if it was not caused directly by the conduct of the applicant but by Roast, there is a question whether the chain of causation has been broken. It would be necessary to consider whether Roast's actions should be viewed as voluntary and independent of the conduct of the applicant or as part of his participation in a 'race' and in response to the conduct of the applicant.[36] As the matter has not been the subject of any argument, we express no view as to whether, in this case in the absence of complicity, the applicant's driving could in law be a cause of the victim's death.

The Learned Trial Judge erred in directing the jury as to the alternative count, in that His Honour failed to explain clearly:

• the mode of liability alleged against the Appellant; and
• the facts which had to be proved against the Appellant, and the evidence admissible to prove those facts.

117 Counsel for the applicant alleged that his Honour did not make it sufficiently clear to the jury that the Crown case against the applicant on the alternative to culpable driving (the count of dangerous driving causing death) was based either on his complicity with Roast or on the fact that he had aided and abetted him. It was submitted that his Honour had directed the jury that these were the two bases on which the applicant could be criminally liable on the culpable driving count, but had not given a similar direction as to the bases on which he could be convicted of dangerous driving causing death. It was submitted that his Honour's jury directions had emphasised the applicant's behaviour, for example, his failure to keep a proper lookout, whereas the Crown case was that it was not the applicant's own behaviour, but rather the fact that he had agreed to race Roast, or had encouraged Roast to drive fast, that was an essential element of the Crown case.

118 In his jury charge his Honour gave detailed directions on the basis on which the applicant could be held liable for culpable driving, either because he had acted in concert with Roast or aided and abetted him. He carefully instructed the jury on the law and related it to the facts. After directing the jury on the elements of the offence of culpable driving, he then gave them directions on the elements of the alternative count of dangerous driving causing death. He then referred again to the fact that the Crown case against the applicant was based on acting in concert or aiding and abetting. He said that:

Now I need to turn briefly to the particular counts involving the [applicant]. Just remember I explained to you in dealing with the [applicant] how the Crown has put its case, namely that he was acting in concert or in agreement with [Roast], but alternatively, that he was intentionally encouraging [Roast] in the racing of the cars and the driving along the highway in that particular manner. Remember, in regards to the concept of aiding and abetting, that the Crown needs to satisfy you beyond reasonable doubt as to the [applicant's] intent to encourage [Roast], and also that on his part he had an actual knowledge of the essential facts which constitute the elements of the grossly negligent driving, so he has to intend to encourage [Roast] and also have an actual knowledge of the essential facts which constitute the elements of the grossly negligent driving.

119 Counsel for the applicant contended that his Honour's reference to 'grossly negligent driving' at that point of his charge would have confused the jury, because he was then dealing with the basis on which the applicant could be found guilty of the alternative offence of dangerous driving causing death.

120 As the complaint was peculiar to the present trial we make only a few brief observations. It is apparent that his Honour misspoke when he referred to 'grossly negligent driving' immediately following the part of his charge explaining the elements of the alternative offence. As I have said, however, his Honour had previously explained the requirements of the two bases on which the applicant could be held criminally liable for the victim's death. In directing the jury on the offence of dangerous driving causing death his Honour told them that 'both the Crown and the defence rely upon all the evidence and the facts and circumstances which I have reminded you of that relate to the second element in relation to culpable driving'. This necessarily referred to the Crown case that the applicant was complicit in the offence committed by Roast.

121 When read in the context of the whole trial (including the fact that it was Roast, not the applicant who collided with the victim's car) and his Honour's earlier directions, we consider that it would have been abundantly clear to the jury that the applicant's criminal liability for the alternative offence was based on either concert or aiding and abetting.

123 As we have said, the Court re-sentenced the applicant to 12 months' imprisonment on each of the counts of failing to stop after an accident (count 2 ) and failing to render assistance after an accident (count 3) respectively. Although the grounds of appeal against sentence are not strictly applicable in re-sentencing, the submissions made on them have some relevance.

124 The maximum penalty for counts 2 and 3 is 10 years' imprisonment. The applicant was aged 21 at the time of these offences. He had no prior convictions or any problem with alcohol or drugs. Since leaving school he had been in full employment and had supported his partner while she was suffering from post-natal depression. A psychological report tendered on behalf of the applicant indicated that he was 'just within a severe range of depression' and that there was a history of depression in his family. His Honour noted that the applicant was not charged with the offences until 6 April 2006 and that there was a 28 month delay between his committal and commencement of the trial. The judge accepted that after the accident occurred the applicant had panicked and driven home to Wodonga, rather than stopping to render assistance.

125 The judge also noted that since the accident resulting in Ms Kelly's death the applicant had committed a number of driving and traffic offences. These were described by his Honour as follows.

[S]ince your offending in December 2005, you have persistently committed further driving and traffic offences. On 25 January 2006, less than two months after your involvement in this matter, you received a traffic infringement notice and a fine for speeding. At this time you were exceeding the speed limit in a 100 kph zone by between 15 and 25 kph.

Less than a month later, on 18 February 2006 at about 10.05pm, you committed the offence of careless driving when you executed a right-hand turn at an excessive speed and whilst revving your engine loudly, such that you lost control of your vehicle as it slid sideways into a marked bicycle and parking lane, before you regained traction and re-entered the correct laneway at a fast rate of speed. This extraordinary conduct occurred when you had a young female and two young males in the car with you. When apprehended by police, who correctly described you 'driving like an idiot', you said that you had got the car two days earlier and had overtaken a mate who had slowed down in front of you. You denied you had done anything wrong and when told that you would probably receive a summons for court, you demanded the police officer's badge number. In the result, on 31 May 2006, at the Wodonga Magistrate's Court, the matter was adjourned and you were released without conviction on a bond to be of good behaviour until 30 November 2006.

On 12 July 2006, whilst you were on that good behaviour bond which I have just mentioned, and whilst on bail for these matters, you received a traffic infringement notice for failing to carry your licence as a probationary licence holder, for which you were again fined.

Finally, on 6 March 2007 at about 4.40am, you exceeded the speed limit in a 50 kph zone by between 10 and 15 kph. For this matter you received yet another traffic infringement notice and fine.[37]

126 His Honour referred to a psychologist's report which said that the applicant 'still appears to fail to grasp the dangers inherent in speeding'. He found that the applicant was not remorseful and that his report to the Wodonga police occurred only because the believed that his registration number had been identified.

127 As the maximum penalty indicates, counts 2 and 3 are serious offences. In the circumstances of this case considerable weight must be given to both specific and general deterrence. It was for these reasons that we imposed the same sentences on counts 2 and 3 as were imposed by his Honour.

[1] R v Hasenkamp (Unreported, New South Wales Criminal Court of Appeal, Grove, James and Simpson JJ, 24 February 1998).

[2] Road Safety Act 1986, s 61(6).

[3] R v Lee [2005] VSC 167; (2005) 12 VR 249.

[4] It was also alleged that the judge failed to relate the modes of the applicant's liability to the elements of the offence. This will be dealt with under ground 4.

[5] [2009] VSCA 255 ('De Montero').

[6] R v Coventry [1938] SASR 79, 87 (Murray CJ, Angas Parsons and Napier JJ); R v Scholl [2009] VSC 198, [19] (Kaye J). See also McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44, 50 (Barwick CJ); Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, 579.

[7] Ibid [80]-[81] (citations omitted).

[8] [2002] VSCA 158; (2002) 5 VR 408, 410 (Ormiston JA).

[9] [2009] VSCA 255, [84] (citations omitted).

[12] Note that his Honour also referred to 'a risk of serious injury or death to others'. It was submitted by counsel for the applicant that by referring to a 'risk of serious injury' and to a 'serious risk of death or injury' at different points in the charge, the judge had not adequately differentiated between 'the high risk of death or serious injury' which the jury had been told was necessary for culpable driving. This argument was unsuccessful.

[13] [2009] VSCA 255, [90].

[15] Senior Constable John Henderson also gave evidence that Ms Arena had described two cars to him, a silver Commodore and a blue Commodore.

[16] She had earlier said during her examination-in-chief that the Pulsar and Commodore had pulled away a minute after the lights turned green and when she was travelling at 80 kilometres per hour.

[17] The question was framed in this way despite an earlier ruling by his Honour that witnesses could not give evidence of opinion based on their observations that 'the cars were racing' or that what they saw amounted to 'street racing' or as to exclamations which witnesses made to others describing the events they were observing.

[18] He said this in cross-examination and repeated it when counsel for the Crown was permitted to ask him about it in re-examination.

[19] As discussed above, Ms Arena was said to have described two cars, a silver Commodore and a blue Commodore: [25].

[20] (1997) 92 A Crim R 545.

[21] Ibid 556-7 (Hunt CJ at Common Law); see also McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 ('McAuliffe'), 113-4.

[22] [1972] VicRp 63; [1972] VR 560 ('Lowery (No 2)'), 561.

[23] McAuliffe [1995] HCA 37; (1995) 183 CLR 108, 117-8.

[24] [1972] VicRp 63; [1972] VR 560.

[26] (1882) 8 QBD 534 ('Coney').

[27] [1951] 1 All ER 464.

[28] [2008] VSCA 109.

[29] Ibid [92] (Buchanan, Vincent and Kellam AJA).

[30] The offenders in the following English cases were found guilty of causing death by dangerous driving on the basis of aiding and abetting. It was not an element of that offence that the death be of another. In Victoria the offenders in the first two of the following cases could not have been found guilty of culpable driving causing death or dangerous driving causing death, as an element of those offences is the death of another person: Crimes Act 1958, ss 318, 319.

[31] [2006] EWCA Crim 240.

[32] [2008] EWCA Crim 1218.

[33] [1974] RTR 431. In an appeal against sentence it was assumed that a driver who was racing another man, who had hit a pedestrian and killed him, was liable because he had aided and abetted the colliding driver.

[34] Interpretation of Legislation Act 1984, s 52; Road Safety Act 1986, s 64.

[35] Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 (per McHugh J); H L A Hart, Causation in the Law (2nd ed, 1985); R v Franklin [2001] VSCA 79; (2001) 3 VR 9.

[36] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.

[37] R v Guthridge (Unreported, County Court of Victoria, Judge Howard, 19 June 2008), [91]-[94].