R v Sullivan

COUNSEL : AC Haesler - Appellant PE Barrett - Crown SOLICITORS : DJ Humphreys - Appellant SE O'Connor - Crown CATCHWORDS : Criminal law - conviction appeal - s 20(2) Evidence Act - Comment made by trial judge - accused not giving evidence - application of proviso. DECISION : Appeal against conviction dismissed

IN THE COURT OF CRIMINAL APPEAL 60256/02

GILES JA JAMES J HIDDEN J

MONDAY 16 DECEMBER 2002 REGINA v KYLE SULLIVAN Judgment

1 JAMES J: Kyle Terrence Sullivan has appealed against his conviction, after a trial in the District Court before his Honour Judge Gibson QC and a jury, on three counts of dangerous driving occasioning grievous bodily harm, an offence under s 51A (3)(c) of the Crimes Act. An application for leave to appeal against the sentences imposed by Judge Gibson was filed, but was subsequently abandoned. 2 The trial at which the appellant was convicted was a joint trial of the appellant and another man named Browning, who was also charged with three counts of dangerous driving occasioning grievous bodily harm arising out of the same incident. At the conclusion of the Crown case, his Honour Judge Gibson directed the jury to return verdicts of not guilty on all three charges against Browning and the jury returned verdicts of not guilty in accordance with his Honour's directions. 3 The Crown case against the appellant at the trial can be briefly summarised as follows. 4 At about 8.30pm on the evening of 1 June 2000 the appellant and Browning, who did not know each other, were each driving vehicles in a north-westerly direction in Richmond Road between Blacktown and Richmond. In this section of Richmond Road there are two marked lanes in each direction with a raised median strip about three metres wide. The appellant was driving a Holden utility and Browning was driving a Pontiac Transam car. The appellant and Browning were observed by a number of other road users to be travelling fast, to be travelling close together and to be weaving in and out of other traffic, and they appeared to be racing each other. The two vehicles stopped at the traffic lights at the intersection of Richmond Road and a road called Breakfast Road, and, when the lights turned green, the two vehicles moved off together. 5 At a point in Richmond Road, somewhere between the cross streets of Breakfast Road and Falmouth Road, the utility being driven by the appellant was in the lane closer to the median strip and the Transam was in the lane closer to the kerb. The utility was slightly in front of the Transam, but the two vehicles were close together. The appellant attempted to move into the lane closer to the kerb, so as to overtake a vehicle travelling in front of the utility in the lane closer to the median strip. The utility collided with the front offside of the Transam. The utility then collided with the vehicle travelling in front of it in the lane closer to the median strip, a Hyundai, in which one of the victims who sustained grievous bodily harm was a passenger. As a result of this collision, the Hyundai was forced across the median strip onto the top of another vehicle, a Daihatsu, which was travelling in the opposite direction, that is, in a south-easterly direction. The other two victims who suffered grievous bodily harm were occupants of the Daihatsu. 6 The appellant regained control of the utility, re-crossed the median strip, and drove off in a north-westerly direction. He was followed for some distance by another motorist. Mr Browning stopped his vehicle on the side of Richmond Road at the scene of the accident. The motorist who followed the appellant and some other motorists who witnessed the accident reported the accident to the police. The appellant was spoken to by police the following day and he participated in an electronically recorded interview. The recording of the interview was admitted into evidence at the trial. 7 The Crown case against the appellant was based on two grounds: (1). that the appellant had engaged in a course of competitive driving with Browning which had culminated in the accident. (2). that the appellant was guilty of dangerous driving in attempting to change lanes immediately before the collision. 8 At the trial the appellant made a number of admissions, including that he had been driving the Holden utility that had collided with each of the Transam and the Hyundai and that the Hyundai had collided with the Daihatsu and that as a result of the collisions an occupant of the Hyundai and that two occupants of the Daihatsu had sustained injuries which could be regarded as grievous bodily harm. 9 The appellant did not give evidence at the trial and did not call any witnesses. In answers in the interview the appellant admitted that he had been the driver of the utility and that he had been travelling in the lane closer to the median strip. He said that the exit to the left, which he wished to take, was coming up, and the appellant had attempted to move into the lane closer to the kerb but "I got clipped by another vehicle. From where it came, I don't know". He said that he had not seen the other vehicle with which he had collided. If he had, he would not have attempted to change lanes. He denied that he had been racing with any other vehicle. In another answer the appellant said, "Had I noticed the vehicle on my left, there is no way I would have attempted to change lanes at all. I didn't even see him then". In another answer he said, "I'd say I am partially negligent for not checking if I had clearance to change lanes, which is what started it". 10 There were three grounds of appeal which I will deal with in turn.

His Honour erred in admitting evidence of the earlier course of driving, as that driving was too remote, and there was no nexus with the manner of driving at the time of the collision . 11 It was not disputed that evidence could properly be given as to the manner in which the appellant had driven his vehicle from the time it moved off after stopping at the traffic lights at the intersection of Richmond Road and the cross street, Breakfast Road. However, it was submitted that evidence which had been given of the manner in which the appellant and the co-accused Browning had driven their vehicles over a distance of two to three kilometres before reaching Breakfast Road, that is, that both vehicles were travelling fast; that they were travelling close together; that they were weaving in and out of traffic and that that they appeared to be racing each other; was irrelevant and prejudicial and should have been excluded. It was submitted that there was no sufficient nexus between the driving before the appellant's vehicle moved off from the lights at the Breakfast Road intersection and the driving at or about the time of the collision. Counsel for the appellant referred to the decision of the Full Court of the Supreme Court of Victoria in R v Horvath (1972) VR 533. 12 I consider that this ground of appeal should be rejected. In my opinion, there were a number of bases on which the evidence of the earlier driving was admissible and should not have been excluded. 13 One way in which the Crown case was put was that the appellant and Browning, over the whole distance of approximately three kilometers up to the place of the collision, were racing each other and the appellant's action immediately before the collision with Browning's vehicle, in attempting to change lanes so as to pass a slower moving vehicle travelling in front of his vehicle in the same lane, was part of this course of competitive driving. 14 Furthermore, it was the manner of driving by the appellant and Browning, before their vehicles arrived at the lights at Breakfast Road, which had attracted the attention of the other road users who gave evidence for the Crown at the trial and explained why they were paying attention to, and were able to give evidence of, the appellant's manner of driving at the time of the collision. 15 In answers given when he was interviewed, which I have already referred to, the appellant asserted that he had not seen the vehicle with which he had collided, that is, Browning's vehicle, and that if he had seen it, he would not have attempted to change lanes. Evidence tending to show that the appellant had been racing Browning's vehicle and had been traveling in very close proximity to it over a distance of approximately three kilometres, would, if accepted, tend to rebut the appellant's assertion that when he attempted to change lanes, he was not aware of the presence of Browning's vehicle in the adjacent lane.

Ground 2 16 His Honour erred in not discharging the jury at the conclusion of the Crown case (and directed verdicts of acquittal in relation to the co-accused). 17 At the conclusion of the Crown case the trial judge directed verdicts of acquittal in favour of the co-accused Browning, on the grounds that the only evidence against Browning was that he had been driving at a speed in excess of the speed limit and had overtaken a number of other vehicles. The appellant's vehicle had then cut across Browning's vehicle and collided with it. In deciding whether he should direct verdicts of acquittal in favour of Browning, the trial judge said at one stage that, in his opinion, there was no evidence that the appellant and Browning had been racing each other. 18 After the trial judge announced that he would direct verdicts of acquittal in favour of Browning, counsel for the appellant, while accepting that a verdict could not be directed in favour of his client, because of the evidence about the appellant's manner of driving at the time he attempted to change lanes, applied for a discharge of the jury on the grounds that because the trial judge had stated a view that there was no evidence of racing, the evidence of the appellant's manner of driving up to the intersection with Breakfast Road was irrelevant, but the evidence was prejudicial because "the spectre" of racing had been raised before the jury. The trial judge refused the application for a discharge of the jury on grounds including that there was a clear difference between the appellant's manner of driving and the co-accused Browning's manner of driving. "Browning", the trial judge said, "was just sitting there going straight. Your client made a movement and cut across in front of him". The trial judge also said that the jury, in the case of the appeallant, would be entitled to look at the totality of the appellant's driving, and his Honour retreated from the view earlier expressed by him that there was no evidence of racing. 19 I do not consider this ground of appeal should be upheld. As I have already held, evidence of the appellant's manner of driving before the intersection at Breakfast Road was admissible for a number of reasons and not merely on the ground that it was evidence of racing or competitive driving between the appellant and Browning. As regards racing, his Honour, as I have said, retreated from the view first expressed by him in argument that there was no evidence of racing, and, from my own reading of the transcript of the trial, I would consider there was some evidence on which the jury could find that the appellant and Browning had been racing each other, and that the appellant's action in attempting to change lanes so as to pass a slower-moving vehicle was part of this course of competitive driving.

His Honour erred in his directions to the jury in relation to the appellant's failure to give evidence by making an impermissible comment . 20 The appellant did not give evidence at the trial. In his summing-up, the trial judge said:- "The accused did not give evidence, and neither does he have to, and because he does not give evidence, you do not say 'Ah well he must be guilty'. You do not draw any inference against him as to his guilt because he doesn't give evidence. The Crown have to prove the case. There are lots of reasons why a person might not give evidence. He might think the Crown's case is too weak. He might not want to fill in some gaps that they might think would be filled in if he went into the witness box. But the Crown cannot fill in weaknesses in their case from an accused by saying his silence fills them in - it does not. He does not have to give evidence and you draw no inference against him and it is no admission on his part in any way that he is guilty.. He says to the Crown 'you prove your case because you're the one that brings the case, you prove it'".

After the jury had retired, counsel for the appellant at the trial applied for a discharge of the jury based on the trial judge having said that a reason why an accused person might not give evidence is "he might not want to fill in some gaps that they might think would be filled in if he went into the witness box". The trial judge declined to discharge the injury. 21 S 20 of the Evidence Act applies in criminal proceedings for an indictable offence. S 20 subs (2) provides:- "The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned". 22 The leading authorities on s 20 are the decisions of the High Court in RPS v The Queen (2000) 199 CLR 619, and Azzopardi v The Queen (2001) 205 CLR 50. In these cases the majority of the High Court placed strict limitations on the extent to which a trial judge is permitted by s 20 subs (2) to comment on a failure of an accused person to give evidence. In paragraph 43 of their joint judgment in RPS v The Queen Gaudron ACJ, Gummow, Kirby and Hayne JJ said:- "To attempt to instruct the jury about how they may reason towards a verdict of guilt (as distinct from warning the jury about impermissible forms of reasoning) leads only to difficulties of the kind that have arisen in the present case. Had the judge's instructions about the significance of the appellant not giving evidence stopped at pointing out that he was not bound to do so, that there may have been many reasons why he did not do so (and the jury should not speculate about those reasons), that it was for the prosecution to prove its case beyond reasonable doubt, and that the jury should draw no inference from the appellant not having given evidence, no complaint could be made. Because the charge in this case went beyond these matters, the jury were misdirected". 23 In paragraph 51 of the their joint judgment in Azzopardi v The Queen Gaudron ACJ, Gummow, Kirby and Hayne JJ said:- "In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence". 24 It was clear that it was these passages in the judgments of members of the High Court in RPS v The Queen and Azzopardi v The Queen, that his Honour, Judge Gibson, had in mind, in saying what he did to the jury in the part of the summing-up which I have quoted. What his Honour said was in accordance with what was said in RPS and Azzopardi, apart from his Honour saying that a reason why an accused person might not give evidence is "He might not want to fill in some gaps that they (query "he") might think would be filled in if he went into the witness box". 25 In paragraph 20 of their joint judgment in RPS v The Queen Gaudron ACJ, Gummow, Kirby and Hayne JJ said, "Section 20(2) should be given no narrow construction inviting the drawing of fine distinctions. In particular, the prohibition contained in the second sentence (forbidding the judge making a comment that suggests the accused failed to give evidence because he or she was, or believed that he or she was, guilty) must be given full operation". 26 In paragraph 54 of their joint judgment in Azzopardi v The Queen, Gaudron ACJ, Gummow, Kirby and Hayne JJ said:- "The effect of the sub-section is that the judge, the accused and any co-accused may comment on the fact that the accused did not give evidence, but the judge may not, by that comment, 'suggest' that the accused failed to give evidence because he or she was guilty, or believed that he or she was guilty, of the offence charged". 27 At paragraph 56 their Honours said:- "'Suggest' is a word of very wide application. It was held in RPS that the prohibition in s 20(2) should be given no narrow construction, that 's 20(2) requires a line to be drawn and it should be drawn in a way that gives the prohibition against suggesting particular reasons for not giving evidence its full operation'… If s 20(2) is not interpreted in that way, the opportunity to exculpate has become an obligation to self-incriminate'. 28 His Honour's statement that a reason why an accused person might not give evidence is that "he might not want to fill in some gaps that they (query "he") might think would be filled in if he went into the witness box", clearly amounted, in my view, to suggesting that a reason why a person might decide not to give evidence is that he is guilty of the offence, or at least believes that he is guilty of the offence, and believes that, if he were to give evidence, his evidence might fill in gaps in the Crown case. What his Honour said, that an accused person might fail to give evidence because he believes that, if he gave evidence, his evidence might fill in gaps in the Crown case, (which is an impermissible comment), is quite different from saying that the jury could not use a failure of the accused to give evidence to fill in gaps in the Crown case, which is a permissible, and indeed desirable, comment. I would uphold this ground of appeal. 29 I have held that the third ground of appeal has been made out However, it does not necessarily follow that the appeal against conviction should be allowed. It is necessary to determine whether the proviso under S 6(1) of the Criminal Appeal Act should be applied on the basis that no substantial miscarriage of justice actually occurred. In order to determine whether the proviso should be applied, it is necessary to assess the strength of the Crown case, the strength or weakness of the defence case and the significance of the error, and to inquire whether the appellant lost a chance, which was fairly open to him, of being acquitted. 30 In my opinion, this is a proper case for the application of the proviso. At least that part of the Crown case which was based on the appellant trying to change lanes when there was insufficient room to do so, was very strong. The appellant had admitted in his interview that he had attempted to change lanes and had been at fault in doing so. As regards the significance of the error, the other things said by his Honour about the failure of the accused to give evidence were correct, and what his Honour said, taken as a whole, amounted, in my view, to strong directions to the jury not to draw any inference adverse to the accused because he did not give evidence. 31 I would propose that the appeal against conviction be dismissed. 32 GILES JA: I agree. 33 HIDDEN J: I agree. 34 GILES JA: That will be the order of the Court.

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