R v Lee [2005] VSC 167

2 No specific submissions were directed to the other counts on the presentment, although, insofar as the Crown was required to demonstrate a causative link on those charges, I assume a submission would have been couched in similar terms.

3 Due to circumstances which are not now relevant the original submission of 10 May 2005 was renewed on 12 May. In rejecting the submission on each occasion I indicated I would later provide written reasons for my decision. These are those reasons.

4 In R v Smith[1] I endeavoured to set out the principles applicable to such a submission. It is not necessary to repeat them for the purposes of this ruling. Nor do I intend to set out chapter and verse the arguments advanced by the parties. These are contained in the trial transcript.

5 Central to the defence submission was an analysis of the High Court judgments in Royall v R[2] insofar as they related to causation. This was a somewhat unique case involving an attack on the deceased by the accused in a sixth floor flat. On one possible view of the facts advanced by the Crown, this attack resulted in her jumping from the window, having, at the time, a well-founded and reasonable apprehension of life-threatening violence.

6 In considering the test of causation propounded by the various judges in Royall it is well to remember that it involved a homicide prosecution. There is, I think, no simple transition to what may constitute causation in a case of culpable driving.

7 The time honoured jury direction on causation in a culpable driving case, is in these terms:

"The Crown must prove that the driving of the accused was a substantial cause of the death of [the deceased]. It is sufficient if the driving was a substantial and operative cause of the death. It does not have to be the sole cause of the death, but it must contribute significantly to it. A mistake made by the other driver, or some other circumstance or circumstances, might be part of the totality of the events which led to the occurrence of the death. But if the driving of the accused was one of the substantial and operative causes of the death of the deceased then, in law, the death has been caused by that driving."

"It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter."

9 It appears to be common ground in the instant case that in the circumstances where the Crown allege pursuit and flight, more than the standard charge on causation is required.

10 It was suggested by the Crown Prosecutor that this aspect of the charge should be fashioned having regard to the pronouncements of Deane and Dawson JJ in Royall's case[4]:

"If, in a case of fright or self-preservation, the victim over-reacts to the threatening acts or words of the accused, that may be sufficient to break the chain of causation. That proposition is sometimes put in terms of reasonable foreseeability: when the act done in self-preservation is 'unreasonable' it negatives causal connection: ...

but in a fright or self-preservation case, where the question is whether the victim's reaction was an over-reaction and therefore a coincidence, the matter is best dealt with in terms other than those of foreseeability. A direction that the victim's fear or apprehension must be well-founded or well-grounded or reasonable in all the circumstances will adequately raise the issue, as will a direction that the act of escape or self-preservation must be the natural consequence of the accused's behaviour."

11 As can be seen, the desirability, in general, of avoiding the introduction of questions of foreseeability in relation to causation is adverted to in the joint judgment.

12 A similar approach is advocated in the joint judgment of Toohey and Gaudron JJ[5]:

"... we are nevertheless of the opinion that the members of the jury are less likely to be confused if foreseeability is not introduced into the direction on causation and if the jury are told that whether an act of the accused caused the death is 'a question to be determined by them applying their common sense to the facts as they find them.' [Campbell cited]. Consistent with this approach, the jury may be told that, if the victim's reaction to the act of the accused said to have caused the death was quite disproportionate to the act or was unreasonable, the chain of causation was broken."

13 On the issue of causation Mason CJ had this to say[6]:

"It seems to me that, in the context of causation, the principle is best formulated as follows: where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused's conduct. Whether it is necessary for the prosecution to establish also that the mode of escape adopted is a natural consequence of the victim's apprehension for his or her safety does not arise here for the deceased had no means of escape other than jumping out of the window in the situation posited. The question could arise only in circumstances where the victim does something irrational or unexpected, in which event it might be more difficult to establish that the injury sustained was a consequence of the accused's act and not the product of the victim's voluntary act. In such a situation much may turn on the nature and extent of the well-founded apprehension of the victim; and it is to be expected that persons fearful for their own safety forced to react on the spur of the moment will not always make a sound or sensible judgment and may act irrationally."

14 On the issue of foreseeability the judge commented[7]:

"... in my view, to invite the jury to consider foreseeability would be more likely, at least in the majority of cases, to confuse them than to clarify the issue of causation."

Again, on the question of causation, Brennan J (as he then was) states[8]:

"The basic proposition relating to causation in homicide is that an accused's conduct, whether by act or omission, must contribute significantly to the death of the victim [case cited]. It need not be the sole, direct or immediate cause of the death. However, when the death is not caused directly by the conduct of the accused but by something done by the victim or by a third person in response to the conduct of the accused, there is a question whether the chain of causation has been broken. If the response is a reflex or automatic reaction to the conduct of the accused, the chain of causation is not broken. It is also well established that the death may be held to have been caused by an accused's conduct though the direct or immediate cause of death is a final fatal step taken by the victim where that step is taken in an attempt to preserve himself or herself from physical harm which unlawful conduct on the part of the accused has induced the victim to fear, provided the victim's attempt at self-preservation is reasonable having regard to the nature of the accused's conduct and the fear it was likely to have induced (or, as I would prefer, provided the attempt is proportionate to that conduct and the fear it was likely to have induced): [cases cited].

15 Whilst Brennan J, like McHugh J, incorporates foreseeability into the concept of causation their judgments may, for the purposes of this case, be regarded as representing the minority view.[9]

16 In the present case, it is my view that whatever test is applied, the actions of the ultimate victim are subsumed in the actions of the driver Gilliland.

17 On the basis of the principles advanced in Royall's case, I have concluded that any charge on the issue of causation should contain the following additional directions:

"You should approach the question of whether the driving of the accused caused the death of Ms Stevenson in a common sense manner. You will bear in mind that the answer to the question affects whether or not the accused may be held criminally liable for his actions.

If the Crown satisfy you beyond reasonable doubt that the driver of the Commodore was attempting to flee from the Nissan 4-wheel drive at the time of the fatal collision, you would also need to be satisfied beyond reasonable doubt of two further matters. First, that any fear or apprehension that the driver of the Commodore may have felt at the time was well-founded or reasonable in all the circumstances; and, secondly, that the act of driving to escape from the 4-wheel drive was a natural consequence of the driving of the accused. Or put another way that the driver of the Commodore was compelled to drive in the manner he did because of the conduct of the accused in his driving of the 4-wheel drive vehicle.

If the manner of driving of the Commodore was an over-reaction to the conduct of the accused in his driving of the 4-wheel drive, it may not be possible to conclude that the fatal collision was caused by the accused. Of course, if the manner of driving of the Commodore was totally independent of any act of driving by the accused, then it could not be said that the accused caused the fatal collision with the pole."

18 Against this background, what are the facts which the Crown may rely upon in seeking to demonstrate the causative link between the accused's driving and the deceased's death?

19 The Crown points to a pre-existing animus or antagonism between the occupants of the Commodore and the 4-wheel drive, stemming from an incident at McDonalds about one week prior to this night, and culminating in a confrontation earlier in the evening of 19 September. On the latter occasion the accused's friend, Brock Hutchison, was assaulted.

20 There is evidence of a search for, and eventual location of, the Commodore in Lindrum Road, Karingal by the accused who, together with his colleagues Hutchison and Kurtis Wilby wanted to "sort the matter out" with the persons in the Commodore. After a slamming on of the brakes and a U-turn, a persistent pursuit of the Commodore by the 4-wheel drive occurred both before contact with it was lost in Ashleigh Avenue and after contact was re-established in Beach Street. There is evidence of the dangerous nature of that pursuit in Ashleigh Avenue from the witness Freame.

21 Further, it is open to the jury to infer flight by the Commodore at least from the point where it left Ashleigh Avenue to take a devious rather than direct route to Beach Street.

22 Having done a further U-turn in Beach Street to re-engage in the pursuit, the 4-wheel drive closed in on the Commodore in Ashleigh Avenue at a speed in excess of the 50 kms per hour speed limit. On the Crown case it collided with the rear of the Commodore, either deliberately or negligently, in the vicinity of Woorilla Court. The jury need not accept the claim in the accused's record of interview that the collision was caused by the Commodore braking unexpectedly and unnecessarily, not only because that claim needs to be seen in the context of the accused's earlier lies and hence the credibility of his account, but also because the jury might take the view that Shannon Gilliland would not have risked damaging his recently purchased vehicle.

23 On the accused's own account, it was after the rear end impact, which was preceded by his tooting his horn and flashing his lights on high beam, that the Commodore "took off".

24 It must be acknowledged that there are considerable discrepancies in the evidence of the occupants of the Commodore as to the sequence of events and, indeed, between some of their evidence and that of the expert witnesses called on behalf of the Crown. Nonetheless, a jury could find that there was concern after the collision in Ashleigh Avenue regardless of the roundabout at which that collision had occurred. Indeed, the witness Coleman speaks of concern at the stage of that collision. The question of concern must also be seen in the context of the occupants of the Commodore subsequently expressing the belief that the 4-wheel drive vehicle had rammed them.

25 In the circumstances a jury might well be prepared to infer that such concern was linked to, and demonstrated by, the Commodore "taking off" after that incident - a manoeuvre which led to the ultimate loss of control.

26 It is arguable that the Crown need not demonstrate the close proximity of the vehicles at the Wangarra Road roundabout, and that it would be sufficient to fix the accused with criminal responsibility, if the jury were of the view that the manner of driving of the Commodore from the Woorilla Court roundabout was compelled by the prior conduct of the accused, up to and including that incident.

27 However, given the distances involved, the Crown has chosen to present its case on the basis that the pursuit of the Commodore by the 4-wheel drive vehicle continued up to the second roundabout relying upon this driving as founding the culpable driving and allied offences. In this regard the Crown seeks to have the jury draw the inference that, given the demonstrated determination of the 4-wheel drive to stop the Commodore, the accused would not be deterred by this collision. Indeed, whether the impact was accidental or deliberate, the failure of the Commodore to stop after it occurred, could arguably have exacerbated the situation.

28 Moreover, the Crown may point to the evidence of Nicole Harrison that the two vehicles were within 2.7 metres apart when they traversed the Wangarra Road roundabout, as indicating a continuing pursuit.

29 The defence submission that the evidence of the oncoming driver Beare, the bystander Jordan and the three young netball girls, Scott, Maurice and Perry undermines the Crown contention has merit, but, in each case, there are reasons which may be advanced by the Crown as to the unreliability of their observations.

30 Moreover, there are some passages in the accused's record of interview which are capable of supporting the Crown contention that the 4-wheel drive was still closing on the Commodore at the time the driver Gilliland lost control of it.

31 Even if it is possible to characterise the evidence as "tenuous or inherently weak or vague"[10] such evidence (including inferences) is nonetheless capable of supporting the necessary causal link between the accused's actions and the deceased's death. Since that issue is the basis of the defence "no case submission", that submission must fail.

32 The other matter for determination is whether the Crown should be permitted to use some admitted lies in the accused's record of interview, and the fact of the exchange of his Nissan 4-wheel drive vehicle for his Fairlane sedan subsequent to the collision, as demonstrating a consciousness of guilt.

33 The lies pointed to by the Crown are as follows:

(1) that whilst he was searching for the vehicle containing those persons who had assaulted Brock Hutchison he was unable to find it (R of I, Q.195);

(2) that he did not know that those persons who had assaulted Brock Hutchison were the occupants of the Blue Holden involved in the collision (R of I, Q.269);

(3) that as he drove north along Ashleigh Avenue he was not chasing anyone (R of I, Q.508);

(4) that as he was driving north along Ashleigh Avenue he did not flash his headlights at anyone (R of I, Q.667).

34 It was submitted that the jury would be entitled to reason that such lies related specifically to the manner of the accused's driving of the 4-wheel drive vehicle on the fatal evening and to the causal connection between that driving and the death of Ms Stevenson. It was put that no other interpretation of those lies was open.

35 Whilst the accused rectified the lies later in the record of interview, it was argued that consciousness of guilt does not have to exist for any lengthy period.

36 In my view it is necessary to proceed with caution where the accused disavows the falsehoods within a short period of time. Moreover, the youth and inexperience of the accused in a custodial situation, and the fact of serious allegations being made against him, point to fear and panic as reasonable explanations for these lies which, I note, were told prior to the receipt of legal advice.

37 Moreover, the lies must be placed in the context of the complete record of interview. Given these circumstances I do not think that the lies are capable of sustaining the proposition that they were told because the accused realised his guilt and feared that the truth would implicate him in the offence.[11] One might also ask guilt for which offence?

38 In the course of argument my attention was drawn to the case of R v Gane[12]. In it I ventured the following view in relation to the use of flight as demonstrating a consciousness of guilt (pp.2-3):

"In my view the primacy of the objective element in the offence of negligent culpable driving produces the result that it cannot be the subject of an implied admission of guilt pursuant to the doctrine of consciousness of guilt. This is because the attribution of criminal liability will necessarily depend upon a jury examining the driving itself to determine whether it constitutes a gross failure to observe the standard of care a reasonable man would have observed in all the circumstances.

That does not mean that the conduct of an accused in fleeing the scene could not be used by a jury in assessing the accused's credibility in the same way as lies may be so utilised [cases cited]. Specifically it may be relevant in determining whether or not to accept any evidence given or statement made by an accused in relation to the manner of his driving or any exculpatory explanations about such driving proffered by him - for example that the driving was the result of a mechanical fault or on-coming dazzling headlights or some involuntary physical disability. All these matters would be relevant to a consideration by a jury of 'all the circumstances of the case'. Moreover it may well be permissible to utilise such conduct as constituting an admission by the accused that his manner of driving was erratic or in breach of the traffic regulations or that he had failed to exercise proper care. However, it is one thing to employ evidence of flight in this manner and quite another to use it to found an admission of all the elements of the offence of culpable driving under the umbrella concept of consciousness of guilt."

39 I generally adhere to those views in cases where negligence is a particular of culpable driving. That is the present case. In any event for the reasons I have set out, I rule that the Crown should not proffer these lies as evincing any consciousness of guilt, as distinct from potentially affecting the credibility of the accused's account of the events of this evening.

40 Finally, I do not regard the act of exchanging vehicles as capable of demonstrating a consciousness of guilt, given the explanation of the accused as to the exchange, namely, the possibility of a mechanical fault as the result of the accident. This must be coupled with the accused's attendance at the Frankston Police Station within hours of the event where an admission of the driving of the Nissan vehicle on this evening was made. There is no evidence that the vehicle was hidden or that the fact of its utilisation on this night was being concealed.

41 In short the exchange of vehicles cannot sustain the implication sought to be drawn from it.

1. [1] (2000) 117 A Crim R 298
2. [2] [1991] HCA 27; (1991) 172 CLR 378
3. [3] [1981] WAR 286 at 290
4. [4] Ibid pp.412-13
5. [5] Ibid p.425
6. [6] Ibid pp.389-90
7. [7] Ibid p.390
8. [8] Ibid p.398
9. [9] A useful discussion of causation is found in Scott v Stamford 14 MVR 85 - a decision of Murray J in the Supreme Court of Western Australia.
10. [10] Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 214-15
11. [11] A formulation based upon Edwards v R [1993] HCA 63; (1993) 178 CLR 193
12. [12] An unreported decision of the Court of Criminal Appeal delivered on 17 December 1993