R v Leusenkamp [2003] VSCA 193

13. The Crown case was that the applicant's car, which was travelling north along the Western Highway, understeered through a sweeping left-hand bend and crossed double white lines into the opposing southbound lane. The applicant then overcorrected the steering and the vehicle commenced to broadside out of control, with its driver-side leading, back into the northbound lane. At this time the Holden Rodeo utility driven by Kenneth Sparrow was travelling north at about 100 kph ahead of the Mitsubishi. As Mr Sparrow approached the sweeping left-hand bend, he checked his rear vision mirrors and observed the Mitsubishi travelling sideways behind him, it then being partly over the white lines in the centre of the road. Mr Sparrow then accelerated in an attempt to speed up, checked his mirrors again and saw that the Mitsubishi had caught up to his vehicle. Mr Sparrow said that the effect of the broadsiding action of the Mitsubishi increased and that it collided with the rear of the Holden utility, virtually side on, the impact happening behind the driver's door. The impact then caused the Mitsubishi to proceed back across both lanes onto the grass verge off the southbound lane, rotating one and a quarter times clockwise before coming to rest. The Holden utility, after having been hit from behind by the Mitsubishi, was then pushed across the road onto the wrong (southbound) side of the road. Mr Sparrow attempted to correct his vehicle which was travelling at a 45 degree angle over the white line but was unable to do so. The front of his vehicle then collided with the front driver's side corner of the BMW sedan driven by Mrs Nuske, which had been travelling correctly in a southbound direction at about 100 kph. Just prior to this collision, the BMW had slowed down considerably as Mrs Nuske apparently perceived the threat that lay ahead. The BMW after the collision rotated in an arc leaving tyre scuff marks on the edge of the bitumen. After impact the BMW travelled a very short distance, having been pushed backwards before coming to a rest. Mr Sparrow's vehicle stopped in the middle of the road. The trailer tray of the utility was detached in the accident and came to rest further down the road.

16. After the collision, the applicant and his front seat passenger, Tanya Rose, suffered shock and minor injuries. They were cared for by Michelle O'Neill, a nurse, and Ronald Brown, an officer of the Country Fire Authority. Ms O'Neill said in evidence that the applicant said that he was looking down to do something in the vehicle on the left-hand side, and when he looked up he was on the wrong side of the road and tried to correct but oversteered. Mr Brown said that the applicant told him that he was looking down at the cruise control and had run off the side of the road, and tried to correct the car but lost control of it. The applicant said to Mr Brown that his car had lost control on the gravel on the side of the road. Under cross-examination Mr Brown also said that the applicant had said that he had "looked down to adjust [the cruise control] and the next thing I was out wide. When I got back on the road I was sideways."

19. Kenneth Sparrow suffered minor injuries in the accident and was taken to hospital for treatment. In his evidence he said that he hit the BMW sedan as a result of being hit from behind by the applicant's car and forced over the white line. Mr Sparrow said that at the time of the collision he had been driving in the far left lane. He described the bend as a bad corner, and "not one that you tend to want to speed around too much because ... it hasn't got a lot of camber on it."

22. There were two people in the BMW. Mrs Nuske, who was driving, sustained serious head and chest injuries and, as I have said, died at the scene. Clay Nuske, who was eight years old, and seated in the front passenger seat, received minor injuries and was taken to hospital for treatment.

25. Evidence was given as to the movements of the applicant prior to the collision. The applicant and Tanya Rose shared a house in Kilsyth, and he worked as a carpet layer. He had planned to travel to Adelaide at this time, to meet his natural mother for the first time, leaving in the afternoon of Friday 9 June. He picked up the Mitsubishi from a rental company that morning, it being the first time the applicant had hired or driven this make of vehicle. The applicant and Ms Rose left Kilsyth shortly after 2 p.m. The journey to Adelaide took them north along the Western Highway past Ballarat, which has a 110 kph speed limit. In an interview conducted by police after the collision, the applicant said he had been told by a friend that the speed limit all the way to Adelaide on the open highway was 110 kph. He had gone past an overhead speed check near Ballan, that check showing that he was travelling at 112 kph when his speedometer was reading 116. He said he then set the car's cruise control at that speed. The cruise control was located at the end of a lever in the controls of the Mitsubishi, that lever also controlling the turning indicator and lights. There was a push button to engage the cruise facility, and the cruise control would be automatically disengaged by applying the brakes or pulling the lever towards the driver. The most usual way to disengage the cruise control was by applying the brakes. However the control was operated manually with the right hand. The applicant's car also had a speed alert set at 135 kph.

28. Past Ballarat the open highway speed limit dropped from 110 to 100 kph. The applicant said in his record of interview that he had stopped for a toilet break at Ararat and then continued north along the Western Highway. Evidence was given by Amanda Paull and David Viet that a few kilometres out of Ararat where the speed limit was 100 kph, the applicant's vehicle overtook theirs, travelling at about 120 kph. Ms Paull said she was driving at approximately 100 kph. Her evidence was that the applicant's car "overtook fast" but otherwise safely. This evidence was confirmed by her passenger, Mr Viet, who however estimated the speed of the applicant's vehicle at approximately 120-130 kph. Both these witnesses said in cross-examination that it would be difficult to tell whether the applicant's car had been travelling at 116 kph as opposed to the higher speed they had estimated.

31. Some three kilometres after passing Ms Paull's car, the applicant drove past a marked police vehicle which was stationary at the side of the highway. Senior Constable Denis McAdie of the Ararat Traffic Management Unit was conducting radar checks on passing traffic. The applicant's car came into view and Senior Constable McAdie checked its speed on the radar at 116 kph. He then drove on to the highway with the intention of pulling over the applicant, but by the time the police car had made its way onto the road, the applicant's vehicle was out of sight. Senior Constable McAdie then travelled 1.5 kilometres before coming upon the accident site.

34. Senior Constable McAdie administered a preliminary breath test to both the applicant and Mr Sparrow, but both showed no sign of alcohol. The applicant was then taken to the Ararat police station for an interview. During the interview the applicant said that in the moments before the collision he had been travelling at the same selected cruise control speed of 116 kph. He said that as he rounded the left-hand bend, he looked down to adjust the cruise setting as he felt his speed was too high for the bend. Then when he looked up he was on the wrong side of the road and swerved back to the left and lost control and the collision occurred.

37. Evidence was given by various police officers as to tyre yaw marks on the road surface, which were said to be consistent with the applicant having crossed onto the incorrect side of the road before swerving back into the left-hand lane. The total distance covered by the skid-marks was said to be over 180 metres. Sergeant Michael Talbot said in evidence that it was possible to reconstruct the sequence of collisions. He said the damage to the Mitsubishi indicated that it had hit the Holden utility. This evidence was supported by that of Senior Constable Leigh Booth, who said that at the point of collision the applicant's vehicle was completely sideways, rotating in an anticlockwise direction prior to impact.

40. Sergeant Peter Bellion, an accident investigator and reconstructionist with the Major Collision Investigation Unit, examined the physical circumstances of the collision and calculated that just before the impact the Mitsubishi was travelling at not less than 146 kph, and possibly up to 159 kph. Sergeant Bellion said the lower figure was a conservative estimate, the car's speed could not have been less, and that the radius of the yaw marks was inconsistent with a speed of 116 kph when the vehicle was travelling sideways. His evidence was that the applicant's car was in the process of negotiating a left-hand horizontal curve in the roadway, that the driver had understeered which caused the vehicle to come out over the double centre white line. In his opinion the driver had tried to correct by steering the car back to the left, and the car had then commenced to go into a yawing action where the centrifugal force of the vehicle had taken over, exceeding the tractive forces of the tyres on the road surface. The car then commenced to rotate in an anticlockwise direction, leaving tyre marks and becoming progressively more and more sideways. Sergeant Bellion said that at the point of impact the Mitsubishi was 90 degrees to the direction in which it was travelling.

43. Sergeant Bellion said that in relation to Mr Sparrow's Holden utility, the rear tray on the vehicle had sustained an impact consistent with hitting the right rear panels of the Mitsubishi. The Holden utility had also sustained a frontal impact associated with a collision with the BMW. He said that when the Holden utility had been struck it had travelled onto the incorrect side of the road. The yaw marks then indicated that the driver of the Holden utility had tried to steer his vehicle back towards the left-hand side of the road, but the vehicles had commenced to yaw. The Holden utility had then rotated in an anticlockwise direction. The driver had tried to correct to the right side but then the Holden utility had collided with the BMW.

46. Sergeant Bellion said that the Holden utility's speed at the point of impact was approximately 93 kph.

49. Sergeant Bellion also said in evidence that he did not agree with the conclusions expressed in the report prepared by the defence expert, Andrew Enkelman. Mr Enkelman's report had relied on the theory of conservation of energy, and Sergeant Bellion stated that the author had not considered all aspects of the energy involved in the collision. In his view that theory traditionally resulted in values about 20% less than any other methodology used because there were things that could not be accounted for.

53. The applicant did not give evidence at the trial. The only witness called on his behalf, Mr Enkelman, gave expert evidence.

56. Mr Enkelman disagreed with Sergeant Bellion that the photographs of the scene indicated a change in direction in relation to the yaw marks left by the Mitsubishi. In his view no collision had taken place between the applicant's car and the Holden utility. Mr Enkelman stated his opinion that the collision between the Holden utility and the BMW was a separate event, which had occurred before the collision between the Mitsubishi and the Holden utility. Mr Enkelman said that had the Mitsubishi made contact with the Holden utility, there would have been evidence of discernible tyre traces. Furthermore any collision between the Mitsubishi and the Holden utility would have forced the utility to the left as the wheels were being steered in a left turn attitude. In his opinion the impact damage on both vehicles would tend to suggest that the vehicles would turn to the left and not to the right. Mr Enkelman stated his opinion that if the Mitsubishi had collided with the Holden utility then the tray would have been propelled in line with the utility, which had not happened. Mr Enkelman further stated his opinion that at an estimated speed of 146 kph the Mitsubishi would have flown off the road into the bushes on the opposite side of the road. He said the Mitsubishi sedan had spun because the rear tyre was deflated well below the normal operating pressure. In his opinion the under-inflated tyre accounted for the motion of the applicant's car.

59. In Mr Enkelman's opinion the methodology adopted by Sergeant Bellion was flawed as it relied upon three major factors, first, the speed of the vehicle being constant, secondly, the radius being a constant circular radius and thirdly, the friction factor remaining constant through the travel. Mr Enkelman said that if any of these three failed to be constant, then the formula could not be used effectively. In his opinion the speed had not been constant, the radius was not a constant circular and the friction varied. His view was that the principles of circular motion were inappropriate unless these factors held true.

62. Mr Enkelman said that he had instead used a method of energy dissipation, and that by adding all the energies together a vehicle's speed could be arrived at. He calculated the speed of the Mitsubishi at approximately 120 kph. The major dispute between the two experts centred upon that part of the equation dealing with energy loss in the rotation of the Mitsubishi. According to Sergeant Bellion the rotation was 1.75, whereas according to Mr Enkelman the rotation was between 1.25 and 1.50.

65. Under cross-examination it was put to Mr Enkelman that if he had appropriately calculated the speed of the vehicle using dissipation of energy, then a value of 155 kph would have been obtained, which Mr Enkelman categorically denied. He conceded that his conclusions depended upon the sequence of the collision events, and rejected the evidence of this sequence as provided by Mr Sparrow. Mr Enkelman conceded that if the evidence of Mr Sparrow as to sequence were correct, then his scenario could not stand. Mr Enkelman could not explain why the Mitsubishi finished in the resting place that it had. According to Mr Enkelman's theory the Mitsubishi should have finished up on the left-hand side of the road, and it had not done so. Furthermore, if Mr Enkelman's theory were correct, this would have meant that two driving incidents had occurred simultaneously at the same place, first, Mr Sparrow's vehicle losing part of its load and then moving over to the wrong side of the road thereby colliding with the BMW; and secondly, the Mitsubishi then also moving over onto the wrong side and then oversteering to correct and thereby colliding with the Holden utility, after the utility had already collided with the BMW.

68. The prosecution case was, of course, that the version of events given by Mr Sparrow was correct and that his version had been verified by the physical evidence of the yaw marks, the vehicle deformations, the vehicle resting positions and the admissions from the applicant.

71. Investigations had revealed that the rear tyre of the Mitsubishi was inflated at a lower pressure than the other tyres. According to the evidence of Senior Constable Booth, the fact that the tyre was deflated would not have had a significant effect on the drivability of the Mitsubishi, and in any event he suggested that the deflation was probably due to the accident. This evidence was in conflict with that of Mr Enkelman.

75. It is convenient to take grounds 2 and 3 together. The judge charged the jury in relation to the element of gross negligence in the following terms -

"Indeed, the law requires all owners of motor cars to insure against the risk of such an action for damages, so that injured persons will be compensated. This is very briefly the civil law of negligence on the highway. However, this is not a civil case in which plaintiff claims damages, this is a criminal trial. In this case the Crown must prove that the accused failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case. To prove the forbidden act of driving in this case, the Crown must prove not merely that the accused failed to exercise reasonable care for the safety of others, but that this departure from the standard of care owed to others was such that it deserves to be called a gross departure from that standard. The Crown must prove that the accused was negligent to a gross extent, that he departed to a gross extent from the duty he owed to exercise reasonable care for the safety of others. It is for you, the jury, to determine whether the facts of the accused's driving in this particular case are such that they deserve to be described as a gross departure by the accused from the standard of care which he owed to other users of the road. Each of these elements must be proved beyond reasonable doubt. So the Crown must prove, must prove that in driving his motor vehicle, the accused, one, departed to a gross degree from the standard of care that he owed to others, that the death of another person occurred, and that has been admitted, of course, and that the accused's gross departure from that standard of care he owed to others caused that death. It must prove each of those elements to your satisfaction beyond reasonable doubt."

79. Mr Thomas, who appeared for the applicant in this Court, accepted that the trial judge had charged the jury on gross negligence in a manner consistent with the line of authorities running from R. v. Horvath[1] to R. v. Shields[2]. Then, in R. v. De'Zilwa[3] this Court had held that where a person was charged with culpable driving under s.318(2)(b) of the Crimes Act 1958, the judge should direct the jury that the jury were required to find that the driving of the accused involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, and which involved such a high risk that death or serious injury would follow, that the driving causing death merited criminal punishment. The Court had made it plain, however, that the proposed directions in relation to culpable driving were not intended to be retrospective[4]. Mr Thomas none the less argued that the particular circumstances of a case involving a charge of culpable driving by negligence might make it necessary for the trial judge to do more than simply charging the jury in terms of "gross negligence", relying on R. v. Heron[5]. He submitted that the circumstances in the present case included a serious conflict between the evidence of the two experts as to the speed of the applicant's car based upon their reconstructions; direct evidence from Mr Sparrow as to the sequence of the collisions in conflict with the evidence of Mr Enkelman; conflict in the evidence as to the significance of the low pressure of one tyre of the applicant's car; and evidence as to the applicant being distracted by the cruise control mechanism on the Mitsubishi with which he was unfamiliar. In his submission a direction of law was in the circumstances required which made it clear that the standard of care required was that relevant to manslaughter through criminal negligence. Mr Thomas conceded that the jury was likely to have accepted the evidence of Mr Sparrow as to the sequence of events, and thus to have rejected the evidence of Mr Enkelman as to his theory of the order in which the collisions occurred. The jury however had had a very difficult task. He submitted that the critical elements in the present case were speed and which vehicle hit the other first. He argued that the judge's charge in relation to gross negligence had been very short, and had not related the facts to the law in any respect.

82. Mr McArdle for the Crown argued that the redirections which had been suggested in De'Zilwa had never been intended to be retrospective, and argued that this was not an unusual case. He put it that the applicant said he had lost control of the car when fiddling with the cruise control mechanism and that it was open to the jury to say that he was well over the speed limit. He was fiddling with the cruise control, being unfamiliar with the vehicle. He argued that no exception had been taken to the judge's directions on this issue by counsel and that there had been no miscarriage of justice arising from them. In his view the contentions of counsel concerning speed and tyre pressure as a contribution to the accident had been put to the jury in the course of the charge. Mr McArdle did not contest, however, that the charge had been a very short one in so far as directions on gross negligence were concerned, or that the judge had said very little to relate the facts of the case to the law.

85. In Heron[6] an accident had taken place between two cars at an intersection of a major road, the car in which the victim was a passenger having waited and then commenced to make a right-hand turn. The allegation of negligence was based on the speed at which the applicant's car was travelling. The estimates given of the speed of the car varied dramatically, and it would have been open to the jury to conclude that the speed was anywhere between 90 and 140 kph. The speed limit in the area was 80 kph. If the jury had not been satisfied beyond reasonable doubt that the applicant was driving at more than 95 kph, it was doubtful that the applicant's driving approached the level of negligence sufficient to warrant the intervention of the criminal law. Accordingly, the Court took the view that the jury should have been given a direction such as that suggested in De'Zilwa to enable them adequately to consider the applicant's guilt or innocence, notwithstanding that the trial had been heard before De'Zilwa was decided. Mr Thomas's argument was that the present was a case with strong similarities to the circumstances in Heron.

88. Much of Mr Enkelman's evidence, including his reconstruction of the sequence of events, was in conflict with the eyewitness evidence of Mr Sparrow. As Mr Thomas conceded, it is likely that the jury would have accepted Mr Sparrow's evidence. But in the present case, as also with Heron, speed was a critical factor. Sergeant Bellion's opinion (as I have said) was that the applicant's car was travelling at the point where it first began to leave yaw marks on the roadway at a speed not less than 146 kph and possibly up to 159 kph. Mr Enkelman's evidence was that the car was travelling at 120 kph, but it was likely to be discounted by the jury because of the conflict with Mr Sparrow's direct evidence. But the judge did not remind the jury that there remained nevertheless a body of evidence which supported the applicant's assertion that he was only travelling at 116 kph when he started to lose control. He had been using the cruise control, which should have kept his car travelling at a constant speed. He had been seen by Ms Paull and Mr Viet travelling at a speed which was close to 116 kph and then, shortly afterwards, his speed had been checked by radar at 116 kph, only one and a half kilometres before the scene of the collision. The evidence of his passenger, Ms Rose, was that his car had not increased in speed shortly before the accident.

91. In these circumstances the speed range calculated by Sergeant Bellion (146 to 159 kph) is somewhat surprising, suggesting that the applicant, notwithstanding that he was using a cruise control, had somehow increased the speed of his car by between 30 and 43 kph in only one and a half kilometres, having beforehand maintained a reasonably constant speed of around 116 kph. The applicant had always maintained he was using the cruise control, and the speed alert (fixed at 135 kph) had, according to Ms Rose, not sounded before the collision. The evidence also left open the possibility that the reduced pressure of one of the Mitsubishi's tyres had caused it to yaw; or that the applicant had lost control when distracted by attempting to use the cruise control lever on a car with which he was unfamiliar.

94. It was, in my view, critical in the circumstances that the facts and issues in the case be related to the actual charge[7]. The judge recited a proportion of the evidence of the two expert witnesses and of the other prosecution witnesses in his charge. But, with great respect, his Honour, in what was a very short charge having regard to the length of the trial, said very little to relate the facts to the law either as to gross negligence or to causation. The significance of this is that if the jury accepted beyond reasonable doubt that the applicant was driving at no less than 146 kph before losing control, they may well have had little difficulty in finding him guilty of culpable driving and that his gross negligence caused the death of Mrs Nuske. On the other hand, if they were not satisfied that he was travelling at more than 116 kph, and in circumstances where one of his car's tyres may have been under-inflated, or his attention may have been suddenly distracted by an unfamiliar cruise control, their consideration of the question of guilt or innocence must have been quite different, and a verdict of guilty of culpable driving much harder to sustain beyond reasonable doubt.

97. It was in my view therefore essential in the interests of a fair trial that the judge give the jury more assistance in the charge both as to the law, and in relating the evidence to the issues in the trial and to the offence charged. His Honour did not, as judges of the County Court commonly did where the circumstances warranted it, before De'Zilwa was decided, tell the jury that a conviction for culpable driving on the ground of gross negligence required them to be satisfied that the accused's driving was of such a nature as to justify the intervention of the criminal law. No exception was taken by defence counsel to the terms of the charge, but in the circumstances this should not prevent these grounds now being taken.

104. It is unnecessary to deal at length with grounds 1 and 4. Ground 1 arose from an attack made upon the honesty of the only defence witness. Mr Enkelman was asked a number of questions in cross-examination about whether he had given evidence in other cases. He had first responded that his evidence "had always been accepted" in other cases, which no doubt entitled the prosecutor to challenge that answer. The prosecutor then, however, proceeded to ask him a series of questions suggesting that his honesty had been called into question in other courts and that in a particular case in Tasmania the judge had questioned the honesty of his evidence.

107. In my opinion these questions should not have been asked.[8] Objection was taken to this line of questioning and the judge at the start of the next day's hearing gave the jury a direction to ignore these questions and to dismiss this passage of evidence from their consideration. Although the jury might have been expected to obey the judge's direction, the attack on the honesty of the defence's sole witness may well have done some damage to the defence case. Counsel did not however ask for a discharge of the jury.

110. Ground 4 complained of the fact that during cross-examination of Mr Enkelman, some four pages of calculations made by Sergeant Bellion relating to dissipation of energy were put to Mr Enkelman, the intent of the questions and the use of the calculations being to demonstrate that even using this witness's method, properly applied it led to a calculation of the speed of the Mitsubishi at 155 kph. After putting some questions about these calculations to Mr Enkelman, the prosecutor asked him whether he accepted that they came from Sergeant Bellion, which the witness accepted. The prosecutor then tendered the calculations without objection, and they were admitted in evidence.

113. 36 In my view the prosecutor should not have been permitted to tender these calculations. They had not been verified by any witness, indeed Mr Enkelman had expressed his complete disagreement with them. They were capable of causing considerable prejudice to the applicant's defence, since the calculations on their face purported to demonstrate that on Mr Enkelman's method, the speed of the Mitsubishi was more than 155 kph. Mr Thomas argued that in permitting the prosecutor to tender these documents, the prosecution was allowed both to split its case, and also that the tender of the document was inconsistent with various sections of the Crimes (Criminal Trials) Act 1999. It is unnecessary to consider whether these submissions are correct.

116. The application for leave to appeal against conviction should, in my opinion, succeed on grounds 2 and 3 and the conviction should be set aside and a retrial ordered.

128. The order of the Court is that the application for leave to appeal against conviction is granted. The appeal is treated as instituted and heard instanter and is allowed. The conviction of the applicant on the charge of culpable driving is quashed. The Court directs that the applicant be retried on this charge.

[1] [1972] VicRp 60; [1972] V.R. 533.

[2] [1981] VicRp 68; [1981] V.R. 717.

[3] [2002] VSCA 158; (2002) 5 V.R. 408.

[4] De'Zilwa at [2], [46] and [55]; see also R. v. Scott [2003] VSCA 55.

[5] [2003] VSCA 76.

[6] [2003] VSCA 76.

[7] De'Zilwa per Ormiston, J.A. at [4]; Alford v. Magee [1952] HCA 3; (1952) 85 C.L.R. 437 at 466; R. v. Anderson [1996] VICSC 17; [1996] 2 V.R. 663 at 666-667.

[8] Seaman v. Netherclift (1876) 2 C.P.D. 53, at 59 and 61; Frost v. Fuller [1999] S.A.S.C. 93 per Debelle, J. at [20]; Cross on Evidence, Aust. Ed., par. [17510]; Phipson on Evidence (12th ed.) par. [1601] note 9.