We note for completeness that Kirby, J. expressed his concerns about the application of the proviso in the context where it had not been applied in that case by the intermediate court of appeal - which dismissed the appeal - so that its application was considered only for the first time when the matter came before the High Court which, his Honour said, did not have "the benefit of assistance of the intermediate court's analysis of the evidence".[116] Moreover, in that case the credibility of an important Crown witness was in issue. None of these matters arises here.
110 It was submitted for the applicant that, having regard to the above principles and the failure by his Honour to give the jury an Edwards direction, and bearing in mind the significance of the evidence as to the applicant's post offence conduct, the "limitations" inherent in an appellate court reviewing the evidence wholly or substantially on the record mean that this Court should not conclude that it can reach satisfaction beyond reasonable doubt as to the applicant's guilt. Alternatively, it was claimed, even if we were persuaded on the evidence of the applicant's guilt, we should nevertheless allow the appeal because, given the significance of the consciousness of guilt evidence and that the jury were "misled" as to the necessary process of reasoning in relation to it, his Honour's error resulted in a trial that was "tantamount" to one that was not conducted "according to law" thereby producing a "substantial miscarriage of justice". It was said that the error was of such seriousness that it "should ... be marked by the provision of relief and an order for a new trial".[117]
111 We do not accept Mr Priest's submission that it would only be in a rare case that it would be appropriate for the appellate court to apply the proviso in a case where the Crown relied on consciousness of guilt evidence and the trial judge has misdirected the jury on how they should deal with it. We think that it is one thing to argue that, in the particular circumstances of a case, where the Crown relies on consciousness of guilt evidence and there has been a misdirection on the issue, the proviso cannot be properly applied because, say, of the operation of the "natural limitations" of which the High Court spoke in Weiss. Thus, for example, where the Crown case on consciousness of guilt relied heavily on the evidence of a witness whose credibility was in issue and the resolution of that question depended, to a material extent, on seeing and hearing him or her in the witness box, it may be appropriate for the proviso to be applied.[118] Similarly, there may be consciousness of guilt cases where the insufficiency in the direction to the jury was so significant that it can be said that the offender did not receive a trial "according to law". But it is another thing altogether to contend, as was done here for the applicant, that a misdirection as to the use of consciousness of guilt evidence generally amounts to a "substantial miscarriage of justice" such as to preclude the application of the proviso. We consider that the underlying basis for such a submission is flawed.
112 As we have already explained, evidence of post offence conduct forms part of the facts and circumstances from which the jury is asked by the Crown to draw the inference of guilt of the offender. The reason why a direction along the lines stated in Edwards is necessary, is to avoid the risk of a miscarriage of justice occasioned by the jury impermissibly jumping to the conclusion that merely because, for example, the offender lied about an aspect of the case, he or she necessarily did so because of a recognition of guilt and a fear of the truth. But otherwise the treatment of consciousness of guilt evidence is relevantly no different from that of other circumstantial evidence in that the jury may be asked to infer from it the conclusion for which the Crown contends. A failure to direct sufficiently on consciousness of guilt will often, if not usually, result in a miscarriage of justice, but it will not amount to a "substantial miscarriage of justice" just because the misdirection related to consciousness of guilt evidence. The nature of the case made against an appellant may be such that the appellate court will be well placed to make its own evaluation of the evidence and a determination as to the guilt of the appellant. This is often likely to be so where the Crown relies principally upon circumstantial evidence. Furthermore, the appellate court may also be in as good a position as the jury to assess the post-offence conduct in conjunction with the rest of the circumstantial evidence, to determine whether it gives rise to the inference that the post offence conduct exhibited consciousness of guilt by the offender and whether, in the circumstances, he or she is guilty of the offence in question. Thus, subject to the qualifications stated in Weiss, and the necessity to bear in mind the matters of principle that were articulated by Kirby, J. in Darkan to which reference has been made, we consider that, ordinarily, the mere fact that the misdirection relates to consciousness of guilt evidence does not mean that the resulting miscarriage of justice must be treated as "substantial miscarriage of justice" such as to preclude the application of the proviso.
113 In the present case the resolution of such issues of credit as may have arisen relating to the applicant's claims concerning the drinking of the whisky did not depend on the court seeing and hearing him or any other witness, such as Dr Odell, give evidence. In our view, there were no other "natural limitations" that would preclude the proper application of the proviso. In the circumstances, it is appropriate for us to analyse the whole of the evidence for the purpose of determining whether the applicant was proved guilty of the offence in question. Before proceeding to analyse the material, we note two matters for completeness. The first is that, although the applicant did not contend before us in terms that the totality of the evidence cannot properly lead to the conclusion that the applicant was guilty of culpable driving, we must, as was made plain in Weiss, nevertheless review the whole of the evidence for ourselves for the purpose of determining the ultimate issue. The second matter is that, although it was said in Weiss that the jury's verdict is one of the matters to be taken into account in determining whether or not the offender was proved guilty of the offence beyond reasonable doubt, we give little weight to the verdict here because, given the absence of the Edwards direction, the verdict may have been affected by impermissible reasoning.
114 We have earlier identified the context in which we are to undertake our task and we now proceed to analyse the relevant evidence, possibly in more detail than is strictly necessary, to make the determination required of us.
The evidence given at trial
115 Zoe Ariel Taylor gave evidence that in October 2003 she was living with the applicant in a flat in East St Kilda near Chapel Street and that he had recently begun work in a dairy. She owned a dark blue Honda City motor car and the applicant sometimes used it. She said that on Saturday 11 October 2003 she left the flat relatively early to visit their friend, Felix Telford, who lived in Hotham Street, St Kilda. She said that they were all going to the races at Caulfield that day and she wanted to wake up their friends.
116 Ms Taylor said that she later returned to the flat to collect the applicant and that the applicant then drove her back to Hotham Street to pick up their friends Felix, Hayley, and Frank, and then another four blocks down Hotham Street to pick up another friend, Mark Carroll. It took two trips to take these people, as well as another friend Clare, to Caulfield Racecourse.
117 Ms Taylor said that she was in the first group to arrive with Felix and Mark, before lunch, and that the applicant arrived about an hour later with the others. He telephoned her and she met him at the main entrance. For the rest of the afternoon they all watched the races and placed bets while drinking beer and champagne.
118 Ms Taylor said that they stayed till the last race at about 5.00 p.m., by which time her friend Hayley was quite drunk, although she said that she did not notice anyone else being "overly drunk". They walked to the car but then remembered that they had left the keys with Clare. They telephoned her and got the keys. The applicant then drove them either to Felix's place or their place.
119 Ms Taylor said that they later went out to dinner at La Porchetta Restaurant in Acland Street. She said that they continued to drink, wine and some shots. Afterwards, she went home to the applicant's house with Hayley in her car, leaving the applicant with his friends, Mark Frank and Felix, to walk home. They arrived home later.
120 She said that at some stage that evening the applicant went out again in the car and he did not come back for some time. He later telephoned her on his mobile phone in the early hours of the morning and told her that he had been in an accident and that a pedestrian had been killed. She said that she walked up Inkerman Street to Felix's house. She passed an accident site near the corner of Chapel Street and Inkerman Street. There was no car there. She said that when the applicant later returned home he was extremely upset. He told her that he had left the scene of the accident rather than stop, because he was in a panic and had gone to his father's house.
121 Felix William Telford, a carpenter, gave evidence that at the relevant time he lived in Hotham Street, St Kilda about 15 metres from Inkerman Street. He was a friend of the applicant. He said that the applicant and Zoe Taylor had come to his house on the morning of 11 October 2003 to collect him to take him to the races. He recalled that it took several trips to get everyone there. They gathered near the rail and all went and got drinks and placed bets. He said that he drank beer and champagne and that the applicant did too. He said that they were all "pretty happy" having a good time, coming and going from the spot where they gathered near the rail on the track. He said that he thought that he might have gone home in a taxi and that he later walked down to the La Porchetta Restaurant in Acland Street, St Kilda. He said that they ate food and that he had a beer and a shot as well. They left around 11.00 p.m. He walked back to the applicant's house with the applicant, Mark and Frank. Zoe and Hayley took the car. It took about 15 minutes. He said that they lost Frank on the way and so the applicant went to pick him up. Frank then came back and told them that the applicant wanted a cigarette. Telford said that he did not go outside but that he could hear the engine running and that someone took a cigarette out to the applicant. The applicant did not come back inside again. Hayley went downstairs to talk to the applicant because she was wondering why the applicant had not come back in himself to get a cigarette. He then heard the car drive off and he did not see the applicant again after that. About an hour later, when the applicant had still not come back, he became worried and decided to walk home. He was concerned because he knew the applicant had been drinking and he was in the car. On the way home along Inkerman Street, he saw an ambulance and someone lying on the street but he did not recognise the person. He arrived home after midnight. He said that he was aware that the applicant had a new job doing milk deliveries and he believed that he started work at about 3.00 a.m.
122 Mark Allen Carroll was a chef who in October 2003 was working at the Inkerman Hotel. He said that he got to know the applicant and his girlfriend, Zoe, and Felix Telford, while he was working there. He said that the night before the races he had drinks with Felix and Frank, and stayed the night at Felix's place, and that Zoe picked them up in the morning and took them to Caulfield Racecourse. They gathered at the start/finish line. They bet, had drinks and watched the races. He said that he thought that he drank champagne and beer and that he saw the applicant drinking alcohol. At the end of the day they went to the La Porchetta Restaurant for something to eat but he said that he did not remember much because he was "pretty consumed with alcohol at that stage". He said that he remembered being at Fiona Court after leaving La Porchetta, but he could not remember how he got there, and that his next memory was walking from Fiona Court to Hotham Street to Felix's house. He saw an ambulance and someone out front of the service station. After that he went back to the applicant's place for a while before returning to Felix's house in Hotham Street.
123 Later, after Mr Carroll was declared to be a hostile witness, he agreed that he had said in his statement to the police that the applicant was tipsy by the time they left La Porchetta and that he should not have been driving and that he had said that "I thought that he had had enough to drink, that he shouldn't have been driving" but that he was in no condition to judge whatever anyone else's condition was.
124 Tegan Duncan worked as a waitress in Fitzroy Street. On Saturday 11 October 2003 she finished work at about 10.00 p.m. and had a beer and then at about 11.00 p.m. was driven home by one of the people with whom she worked, Chris Glover. They were travelling along Inkerman Street in an old white Nissan Skyline east towards St Kilda East at about 50 kph and they slowed down well before the traffic lights at the intersection with Chapel Street as they turned amber. She looked out of the right hand side window as she was talking to Chris and saw a man walk out of the petrol station on the corner. He was walking down one of the driveway exits and she said that she just saw him take a couple of steps onto the road and then pick up into "a lighter sort of jog". She said that he just picked up the pace a bit and took just a couple more steps and then a car hit him. It was coming from the opposite direction travelling on the other side of the road. She momentarily looked away and yelled that someone had been hit and then Chris did a u-turn short of the traffic lights and pulled up in front of the man, and that is when she saw him lying face down on the road in front of the petrol station. She ran to the petrol station where someone was calling an ambulance. The car that hit the man was a dark colour with a silver badge on the back. It continued on its way. It did not stop. It did not slow down or speed up at all. It appeared to be going fast. She believed it was going well over the speed limit which at that point was 60 kph. In cross-examination she accepted that it was possible that it was not exceeding the speed limit.
125 Christopher Charles Glover was a waiter and a student. He confirmed that he had driven Tegan Duncan home on the night of Saturday 11 October 2003. He said he was doing about 40 kph as he approached the intersection and when he saw the lights change to amber he slowed down even more. He said that Tegan was talking to him and then that she screamed that someone has been hit. He said that he heard a thump and a sound like breaking glass and lots of screaming from Tegan. He said that he checked the traffic on the Chapel Street side and did a u-turn through the intersection and came around to park on Inkerman Street facing west. He said that he did not see the accident but saw a man lying in the street and pulled up behind him so that no one else could hit him. He was about a metre and a half out from the kerb in the traffic lane. He called out for someone to dial 000 and talked to the man on the ground. He felt for his pulse which was light and kept fading in and out. The roads were dry and visibility was good.
126 Jason Mathew Scheppers, a cartographer, gave evidence that he was on his way home on Saturday night 11 October 2003 after being out for the evening. On the way home he stopped at the Mobil service station on the corner of Inkerman Street and Chapel Street, St Kilda to buy some LP gas for his car. While using the pump or finishing using the pump, he heard the sound of a car accelerating enough to make him look up. It was the sound of a revving engine, more than normal. The car he saw was moving fast. It was a small dark car coming from the east along Inkerman Street. He first saw it as it was entering the intersection. He said he saw what he took to be a white Mitsubishi travelling in the opposite direction. They crossed in his line of vision. He heard quite a loud crash, thump, sound of breaking glass and he presumed that the two cars had hit each other. He saw something fly onto the road, some dark object. It came around from the right side of the dark car around the back of the car, which continued on. The white car had done a u-turn. He ran towards it but they appeared to be fine. There was no damage to the car, which confused him, and then he looked to his left and saw a man on the road about 5 metres from the exit ramp from the service station.
127 Adrian Ricks, a performer, gave evidence that he was visiting a friend, Sarah, in a block of flats in Inkerman Street on the night of 11 October 2003. They were sitting on the balcony which overlooked Inkerman Street having a cigarette. As he turned to go inside to get ready to go out, he heard a loud thud - "quite deafening and that's what made me actually...it made me jerk" - and looked onto the street. He said that he saw a car travelling towards St Kilda coming from Chapel Street with a guy on the bonnet of the car and then he proceeded to roll off the car and onto the ground. The car was in the right hand lane of Inkerman Street going towards St Kilda with its wheels on the side where the lane starts turning into a right turn lane. The car did not stop. He heard a rev and it kept speeding off "and it didn't brake or anything". He had a feeling that the speed of the car was a bit over the speed limit.
128 Andrew Justin Potger, a cook with McDonald's Restaurants, gave evidence that in October 2003 he was living in a block of apartments in Inkerman Street, St Kilda. The nearest crossroad was Chapel Street. On the night of 11 October 2003 he was at home watching DVD's when he heard a loud noise like two cars having an accident. He ran out into the street to see if he could be of assistance. He did not see any vehicles but saw a person lying on the road and another person running towards him. He attempted to find a pulse and it was very faint at the time. Then in due course the ambulance and police arrived. It was around 11.00 o'clock.
129 Anthony Joseph Ciantar, the applicant's father, gave evidence that his son arrived at his unit at about 11.00 p.m. on Saturday 11 October 2003 in a distressed state. He looked to be all at sea. He was having trouble getting his words out and the witness said that he asked the applicant if there had been an accident and that the applicant nodded his head. The applicant said: "I think I've hit someone" or "hit something" and "what am I going to do? What do I do dad? What do we do now?" The witness told the applicant that he had to go to the police and front up to what had happened, and the witness himself telephoned the police within five minutes of the applicant's arrival, after extracting the details of the accident. He then got dressed - it took him two to three minutes - and they went straight to the St Kilda police station, which took another five minutes. That would have been within about 15 or 20 minutes of the applicant first arriving. They arrived there at about 11.25 to 11.30 p.m. He said that he told Senior Constable Larkin that his son had had an accident. He saw Senior Constable Larkin administer the preliminary breath test with what he described as a little hand held device. He rang a solicitor and his daughter. Later his daughter came to the police station to get the keys to his flat. He stayed at the police station with his son. Before the final interview with his son the witness went with police to his flat in the early hours of the morning and they executed a search warrant. The police took a bottle of Black Douglas from the flat. He had not seen his son consume any whisky. But he said that he believed that his son had a drink of whisky while the witness was in the toilet. He noticed a smell of whisky then. He said that the applicant had told him he needed a drink to calm down. The bottle had been about half full, probably not even that, when it was in the pantry_._ The lid to the bottle was in a box on the pantry floor where the bottle was usually kept. When he left for the police station the bottle was not in the pantry. He said that he told his son he was a "dickhead" for drinking the whisky.
130 Aimee Ciantar, the applicant's sister, gave evidence that she spoke to her father just before midnight. She said that he telephoned her while she was at her friend's house in Newport. She had gone there by train and intended either to stay the night with her friend or to stay at her father's house. He telephoned her again later to tell her that he had not left the keys out for her and to go to the police station to collect the keys. He told her then that her brother had hit somebody, but she did not know what had happened to that person. She said that she caught a taxi to the police station. She did not have enough money on her to pay for it and so her father gave her some money. She said that the police were already at her father's flat in Elwood when she arrived there. She stayed alone in the flat until some other police arrived to search the place. She said that she moved the bottle of whisky from the table to the bench because there was no lid on it and there were kittens in the house. It looked like it should be thrown out as there was only a tiny bit left in it.
131 Senior Constable Stephen Hillman gave evidence that he was on mobile regional duties on the night of 11 October 2003. He received a call while he was on Kings Way. He said that it was about 11.12 p.m. when he arrived at the scene. The ambulances were already there. He and his partner Senior Constable Ingram preserved the scene and put up a road block. Other officers arrived just after 11.30 p.m.
132 Senior Constable Kate Marten gave evidence that she arrived at the scene at 11.20 p.m. She said that she did not see any skid marks. She spoke with potential witnesses. At 11.40 p.m. she was instructed to attend in Glenhuntly Road to view a vehicle at a block of flats. She said that she and a Constable Barter arrived at the premises at 11.55 p.m. and located a blue Honda registration number CHS-966 at the rear of the driveway in the visitor's car parking bay. There appeared to her to be blood and flesh matter in the middle of the windscreen near the top. Senior Constable Marten said that at about 1.40 a.m. the applicant's sister, Aimee, arrived at the flat. She said she had lost her keys and was staying at her father's house for the evening. There was no-one at her father's place. They took her inside and remained outside the flats until Sergeants Cripps and Shiell arrived from the Major Collision Unit.
133 Constable Walter Gerrard Larkin gave evidence that he was on duty at the St Kilda police station on the night of 11 October 2003. He said that at 11.15 p.m. he received a call from Tony Ciantar, the applicant's father, who told him that his son had just come around to his place and that his son had been involved in some sort of collision just prior to that. He asked a few questions then told him to bring his son straight to the police station. They arrived at 11.35 p.m. He noticed a small amount of blood on the applicant's cheek. He was quite upset, very agitated. At 11.38 p.m. he conducted a preliminary breath test with the Lion Alcolmeter, type SD400PA, serial number 040414D. The reading he obtained was 0.159%.
134 Acting Sergeant Stuart Keighley gave evidence that he conducted a formal breathalyser test at 12.29 p.m. The reading at that time was 0.136%.
135 Acting Senior Sergeant Paul Andrew Cripps was at relevant times attached to the Brunswick Major Collision Unit and on the night of 11 October 2003 was informed of a fatal pedestrian collision in Inkerman Street, St Kilda. After arriving at the St Kilda Police Station he observed the applicant and his father in the interview room after the preliminary breathalyser test had been conducted. When he entered the room, he smelt an overpowering smell of intoxicating liquor. He conducted an interview of the applicant in company with Sergeant Keighley. The interview was interrupted for the formal breath test. The reading was 0.136%. He then attended at the applicant's father's home to execute a search warrant. He saw the car which the applicant had been driving and noted damage to various parts of the car. He observed blood on the windscreen and a shattered part consistent with the impact on the deceased's head and took a number of photographs of the car in its damaged condition. The applicant's father later took him into the premises, and he noticed a bottle of Black Douglas whisky on the bench. It only had a centimetre in the bottom of the bottle. It did not have a cap on it. The applicant's father found the lid in the bottom of the pantry and gave it to him. At 6.25 a.m. the same morning, he took part in a further interview with the applicant and Senior Constable Collins.
136 Senior Constable Gerard Maddon gave evidence that he attended the scene at about 11.30 p.m. on the night of 11 October 2003. He did not locate any tyre or skid marks indicative of an attempt to evade or brake. A point was marked on the road where there was a fan of debris in a westerly direction. This was a basis for concluding that the point of impact had occurred at that point. He took measurements with the geodometer and later made a scale plan.
137 The applicant's car was subsequently mechanically examined and was found not to have any mechanical faults which may have caused the collision.
138 Senior Constable Glen Stewart Urquhart, of the Major Collision Unit, was a member of the Society of Automotive Engineers of Australasia and a member of the Australasian and South Pacific Association of Collision Investigations. He had completed the course in technical accident investigation and reconstruction conducted by the Society of Automotive Engineers and the Victoria Police Major Collision Investigation Unit course. He gave evidence that, based upon his observations and calculations, he estimated the distance between the approximate point of impact and the rest position as being in the vicinity of 25 metres and the speed range was between 55 kph and 68 kph. He said that the evidence from dealing with many pedestrian collisions within his unit and also through Monash University Accident Research Centre was that few pedestrians survive an impact with a car at speeds greater than 50 kph. The point of impact on the vehicle was on the front passenger side of the vehicle. There was damage also on the front passenger side quarter panel and to the windscreen.
139 In cross-examination it was put to him that the deceased may have darted out from behind a parked car and in effect left the applicant with no opportunity to avoid him. In re-examination he said that he had undertaken an analysis, on the basis of information that when the applicant first saw the deceased he was walking and that the deceased then sped up into a jog, and that 85 per cent of people unaffected by fatigue, drugs or alcohol will respond within one and a half seconds to a perceived threat of collision. Accordingly, he calculated that whatever the speed at which the applicant was travelling, be it 55 kph or 68 kph, the accident would not have happened if the applicant had been unaffected by alcohol, fatigue or drugs.
140 Constable Trevor John Collins, the informant, also attached to the Major Collision Investigation Unit, gave evidence that he observed the injuries on the deceased. They were significant. The intersection was well lit and the speed limit was 60 kph. The fingerprints taken from the whisky bottle were not those of the applicant but of his sister. The blood sample taken from the deceased was tested and revealed a blood alcohol reading of 0.26%.
141 We have already referred to the evidence given by Mr Ducza and Dr Morris Odell and there is no need to repeat it.
Application of the proviso
142 As we have said, we do not consider that the natural limitations faced by this court in the circumstances of this case are such as to preclude us from coming to the view that the applicant was proved beyond reasonable doubt to be guilty of the offence of culpable driving on which the jury returned its verdict of guilty. The applicant did not give evidence, and hence this Court is substantially in as good a position as the jury to assess the credibility of the answers that he gave to police in his record of interview. As has been noted, the assessment of the expert evidence of Mr Ducza and Mr Odell would not be greatly assisted by seeing them in the witness box. There was no attack made upon their credit or upon the credit of any of the other witnesses, except for Mr Carroll, and, as we have noted, that resulted in him agreeing with the contents of his statement.
143 We are also satisfied that there was not such a denial of procedural fairness at trial that a new trial should be had. It is plain enough, as we have earlier accepted, that it was necessary for the judge to give the jury the Edwards directions. The judge's failure in that regard gave rise to the risk of miscarriage of justice because the jury may have proceeded improperly on the basis that merely because the applicant lied about drinking whisky after the accident, or alternatively drank whisky after the accident, he was conscious of his guilt of the offence of culpable driving with which he was charged. We do not need to consider whether, as was suggested, it is arguable that if we were still operating under "this jury test", which was disapproved of in Weiss, that may have meant that the proviso could not be applied Strictly, it would not be impermissible for us to consider, in the context of our analysis of the whole of the evidence and bearing in mind what was said in Edwards, whether the applicant's lies about the whisky or, the drinking of it, disclosed a consciousness of guilt on his part. But we consider that, in the circumstances, it would be appropriate to assume favourably to the applicant that the lie or the fact of drinking the whisky was not sufficient to establish consciousness of guilt.
144 Based upon our assessment of the whole of the record, we are satisfied of the following: