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[2005] NSWCCA 425
Court of Criminal Appeal (NSW)
2005-08-31
Kirby J, Smart AJ, Patten AJ
Original judgment source is linked above.
Two grounds of appeal are relied on: 1) The judge erred in admitting evidence of identification of the BMW by Messrs O'Toole and Morris 2) There has been a miscarriage of justice in that the verdicts of the jury are unsafe and unsatisfactory, as it was not upon the whole of the evidence, open for the jury to be satisfied beyond reasonable doubt that the accused was guilty.
Q174: And you've always known him as Danny Jenkins? A: It's all, it's all I've ever known him as
Q 175: Have you associated with him anywhere else? A: Not really, no, only a few times, only, only, only on three or four occasions
Q 176: Did you drive any of the vehicles at all? A: No" 15. Later the applicant said originally he had met Danny at Cabramatta and that he had also met Danny at the Fairlight Clinic. The applicant said that he did not know where Danny lived nor how the police could contact Danny. The applicant asked the police to give him 48 hours to contact (or find) Danny. The applicant said that he was going to Cabramatta the following day to try and find him.
The applicant described his mother's 5 Series BMW as magnificent and worth $170,000. Later he said it was worth $70,000. When asked why he had let Jenkins drive after taking heroin the applicant responded "… he's a hard core junkie, to have rohy and a shot to him is nothing."
The applicant gave this description of the incident in answer to Q 80 "Danny was in the outside lane for some reason, he went back to the middle lane, that's when he collided with the bloke… I said, 'Pull up, we'll get insurance you've got a licence there's nothing to worry about. He turned around, I've got to be honest with you mate, I've got no licence, it's a bodgie. So I just said, chuck a right, get right down the end of this street, because last week I took Tyrone there… to take him BMX riding in the BMX track"
and in answer to Q 81 "… we just drove straight down the bottom, straight down to the bush. We both got out of the car, we split up"
In a slightly different version the applicant said in answer to Q115 "Pull over, we've got full insurance, cause it's owned by a company it's fully insured. And that's when he said… 'I've got to be honest with you mate, my licence is a bodgie'"
The applicant said he was concerned about his mother finding out that he had let someone else drive that car without a licence.
The applicant's recorded interview is far from convincing and I doubt if it would cause any jury to entertain a reasonable doubt that the applicant was driving the BMW at the time of the accident.
I return to the other evidence led by the Crown. Sgt Pearsall gave evidence that he was called to Lansvale McDonalds to check on an unconscious male about 8am on 23 July 2000. He found the applicant asleep in the driver's seat in Mitsubishi AFX 56D, felt the bonnet which was cold and banged on the window until the applicant woke up. The piece of newspaper on the applicant's lap contained 9 white tablets which the applicant, on being asked, stated were Rohypnol. When asked he said that he had not used any other drugs, "just the rohies" the applicant stated that his girlfriend Anne had driven him there a short time ago and that she had gone to see a friend. The friend was in a house over the road. The applicant was unable to be more specific. The applicant was alone the entire time Sgt Pearsall was there.
Sgt Pearsall formed the opinion that the applicant was under the influence of a drug, he was sleepy, very groggy, "on the nod." Sgt Pearsall confiscated the keys to the Mitsubishi as the applicant was not in a fit state to drive. The applicant was told the keys would be available for collection by the owner of the vehicle at the police station.
About 9.30am Sgt Pearsall attended Lansvale McDonald's again, but for an unrelated matter. The applicant was there and indicated that he was still waiting for his girlfriend.
About 11am Ms Heidemann attended Cabramatta Police Station and collected her keys. Sgt Pearsall thought the applicant was with her. On being asked as to her whereabouts earlier in the morning, Ms Heidemann indicated she had argued with the applicant and then gone to see a friend to cool off.
Ms Heidemann stated that she had known the applicant since 1998. She made her first statement on the evening of the collision and her second statement on 19 June 2002. She said that her first statement was false. She gave this explanation: "Gerald and I had been friends for a long time and he was helping me with a lot of things and I didn't realise someone had been killed at the time at first, I was just protecting a friend."
Ms Heidemann stated that on the night of 22 July 2000 she went to bed before her daughter and her friends and the applicant. The next thing she remembered was being woken by her daughter with the applicant on the telephone. He informed her that he had taken her car to Cabramatta, that the police had taken the keys off him and that she had to get the keys back from the police and say she had driven. Arrangements were made with the applicant's mother for Ms Heidemann to use Mrs Docker's BMW. Ms Heidemann drove to Cabramatta. The applicant told her to tell his mother that he had to be collected from the city, not Cabramatta.
When Ms Heidemann arrived at Lansvale/Cabramatta she went to McDonald's. The applicant was in her car. There was no one else with him. She tried to have a conversation but he was under the influence of something. Ms Heidemann said that she drove the BMW to Cabramatta Police Station and collected the keys to her car. She drove back in the BMW to the applicant at McDonalds and asked him to hop into the BMW. He did so. She made arrangements with people across the road in a side street to leave the Mitsubishi in their front yard while she drove the BMW back to Mrs Docker in Newport.
On returning to the BMW to speak to the applicant they had an argument as to driving the car. She did not want him to drive the BMW. He became very angry and was under the influence of something. After quite a lengthy argument she threw the keys at him and told him that she would follow him back to Newport. He was to wait outside his mother's place so Ms Heidemann could drive the car into his mother's property and she would not know he had driven the car.
Ms Heidemann stated that the applicant occupied the driver's seat of the BMW and she went to her Mitsubishi. She said that no-one else was in the BMW other than the applicant. They both began the drive back to Newport. She followed him along Mona Vale Road. She said that the applicant stopped at a service station and she pulled in behind him. No-one else got into the BMW at the service station. Ms Heidemann stated that she lost track of the BMW at the intersection of Mona Vale Road and Forest Way and did not see it again. She recalled that after going through the lights she saw "a black flash sort of go across the other side of the Highway". She did not even consider that this was the BMW. She continued to proceed along Mona Vale Road. She said that she did not see the applicant. After seeing the black flash go off to the right (across the other side of the highway) she did not see the BMW again. She drove to and arrived at Mrs Docker's house.
I will return to the evidence given by Ms Heidemann.
In July 2000 Brendan Morris worked for Flannagans Mortuary Transfers His job involved removing deceased persons from crime scenes, motor vehicle accidents and other places to the mortuary as required by the Coroner. He was also involved in "doing funeral transfers for private companies." On the morning of 23 July 2000 he was travelling in the passenger seat in a specially equipped panel van with Mr Fred O'Toole, his co-worker and the driver.
On 23 July 2000 Messrs Morris and O'Toole were travelling in the middle lane of Ryde Road eastbound, heading towards the Pacific Highway and about four to five kilometres from that intersection. It was between 12.20 and 12.30pm. He saw a black BMW overtake them on their right hand side, that is the BMW was in the lane closest to the median strip. The BMW was travelling slightly faster than the van. Mr Morris continued, "as it was coming probably past our bonnet it moved into our lane when the driver next to me (O'Toole) had to take - well evasive action not to get hit by it" and "When I say it moved into our lane it - it didn't actually indicate and move into our lane, it swerved into our lane and then back again," [into its own lane].
Mr Morris was interested in and liked BMWs. He described the vehicle as "a nice looking black five Series BMW, and said "I observed it was a five Series by its shape and size … and appeared to have non-factory standard wheels."
Mr Morris stated that the van caught up with the BMW approximately twice. The BMW was in the lane next to the median strip. Mr Morris said that the BMW was being driven in an erratic manner - "it was not staying inside the lines." Mr Morris asserted that there was one person travelling in the car; that person was in the driver's seat. He did not see any person in the front passenger seat or the rear seat. He said that the driver's head was over the top of the headrest and the haircut looked like a male haircut. The hair was not long - it was shorter than shoulder length. In his ERISP the applicant said he was 6 feet 2 inches in height and that Danny was three or four inches shorter, but well built.
Mr Morris said that he memorised the registration number of the BMW as he observed it on Ryde Road, but did not write it down. On 27 July 2000 when he made his statement to the police and was asked for the BMW's registration number all he could remember was that it contained a one and a five.
Mr Morris and the van arrived at the mortuary of Gregory & Carr at Gordon about 12.40pm, or a little later. The mortuary register shows that the body was received at 1.00pm.
Later he received a call to attend a motor vehicle accident scene at Mona Vale Road at Terrey Hills. When he arrived he saw a blue Subaru wrapped around a telegraph pole. He spoke with the fire officer at the scene and also a police officer called "Brendan". He and Mr O'Toole went down Kamber Road. They saw a black BMW on the back of a tow truck down the end of that road.
Mr Morris said that he formed the view that the car on the back of the tow truck looked very similar to the car he saw on Ryde Road earlier that day. It was similar in colour , or the same colour. It appeared to be a Series 5 like the one he had seen earlier and the wheels looked similar. He remembered "the partial registration". The BMW on the tow truck was damaged, whereas the BMW he had seen on Ryde Road was not.
In cross-examination Mr Morris agreed that in his statement to the police on 29 July 2000 it was stated: "I saw a black BMW … which was either a 5 series or a 7 series. I was quite sure it was a 5 series and not a 3 series because it was bigger."
In the committal proceedings he said, "I thought it was, I'm sure it was a 5 Series but it could have been, it may be a 5 Series or a 7 Series BMW" and "I could not state for a certainty that it was a 5 Series … it was either a 5 Series or a 7 Series BMW."
Mr Morris agreed that black was a fairly common colour for BMWs and that he had seen similar optional different wheels on many black BMWs. Mr Morris agreed that he lost sight of the black BMW about a kilometre before the Pacific Highway exit.
Mr Morris agreed that he told the police that he could not see anyone's head over the front seat headrest of the BMW. He remembered seeing the headrest.
Mr Morris agreed that when he left the accident scene and was travelling down Kamber Road he expected to see a black BMW. In the discussion with the police beforehand, his co-worker, Mr O'Toole, had introduced the subject of a black BMW.
In re-examination Mr Morris confirmed that when making his statement to the police he told the police that during the time the BMW was in his sight he was able to see inside that vehicle and that he was positive that there was only one person in the car, being the driver.
Mr Free O'Toole was the driver of the panel van. He recalled driving along Ryde Road heading for Gregory and Carr, the funeral directors at Gordon. About 12.20 to 12.30pm he was driving along Ryde Road in the centre lane when a black BMW which was travelling in the lane next to the median strip overtook the panel van and swerved into the centre lane about a car length or so in front of him. It was about halfway across the lane markings and then swerved back into its own lane. The BMW's indicators were not flashed. Mr O'Toole said that he slowed down. He kept an eye on it and "it swerved here and there in its own lane and it slowed down a bit later times (sic) and drove kind of erratically." Although he had the opportunity he did not take notice of who was inside the BMW. Mr O'Toole described the BMW as a black 5 Series with nice mag wheels. Mr O'Toole had previously worked as a tyre fitter. He said he had the BMW under observation for about the 10 or 15 minutes it took until he turned off Ryde Road at the Pacific Highway and that the BMW continued along Ryde Road under the Pacific Highway. That leads onto Mona Vale Road. Mr O'Toole did not pay any attention to the registration number of the BMW. He was later called to an accident scene in Mona Vale Road where he saw a blue Subaru had impacted with a pole. After some discussion he went down a road and viewed a vehicle on the back of a tow truck. The vehicle was a black 5 Series BMW. He thought it was the same vehicle as the BMW which he saw earlier. Mr O'Toole had a keen interest in fast cars.
Mr O'Toole accepted that in his statement of 29 July 2000 he told the police, "the black BMW was in my view for approximately 5 minutes" and that that was correct. When he made his statement he was reasonably certain that it was a 5 Series BMW, but he could not be 100 per cent sure. Mr O'Toole said the BMW could have been a 7 Series, but he did not think so as the 7 Series had a differently shaped boot. It was "a lot curvier."
Mr O'Toole said that there had been some conversation at the accident scene before he went down the road (Kamber Road) and that when he went down the side road he expected to see a black BMW. He thought there was a chance that it might be the same BMW as he had seen on Ryde Road. When he went down the side road and looked at the BMW there "it just looked like the same car" he had seen on Ryde Road. It had the same shape boot and back. It had "mag wheels that were shinier than most." They looked like after market wheels.
Mr O'Toole said he was fairly familiar with BMWs. He had seen many black BMWs with mag wheels around Sydney. Mr O'Toole agreed that in the committal proceedings he had told the magistrate that he always stayed at least 15 to 20 metres away from the BMW. At the trial he said that was what he tried to do but he could not be sure that he always achieved that aim.
Vinetu Gracanin with his partner was driving west along Mona Vale Road in the lane closest to the median strip at a speed of 80-90 kph. He told the police about 90 kph. He said that he saw an object sliding down the road, that instinctively he looked to the right, that he saw a black BMW fishtailing out of control, heading towards his vehicle, that he sped up thinking it was going to hit his vehicle. On looking quickly to his right he saw some dust and a blue coloured car wrapped around a pole.
Mr Gracanin said that as he looked at the black BMW he saw the silhouette of a person on the driver's side trying to correct a vehicle which was fishtailing out of control. Mr Gracanin could see no other silhouettes in the BMW. There was just one person, being the driver. After realising that there had been an accident he asked his partner to ring 000 and mention that there may be a fatality. She did so.
Mr Gracanin said that at one point he had a head-on view into the BMW and that it was where he took a mental snapshot of it. He could see right through the vehicle. In his rear vision mirror he picked up that the BMW had stopped.
In cross-examination he said that the sliding object caught his eye through his peripheral vision. He estimated that this was probably at 3 o'clock. The BMW came to his attention via his peripheral vision and that was at 2 o'clock. Mr Gracanin disagreed that when he saw the vehicle it was almost past him. He reiterated that he obtained a "snapshot". He estimated that to be about a second. He agreed that events happened very quickly. He disagreed that events happened so quickly that he could not see what was happening. Mr Gracanin said that he sped up because he thought the BMW might cross the median strip and collide with his vehicle. He agreed that it was only in the snapshot that he was able to see inside the vehicle out of control. Mr Gracanin rejected the suggestion that if there had been somebody in the passenger's seat or if that seat had been a bit reclined he would not have been able to see that during his snapshot. Mr Gracanin was adamant that there was clear vision through the passenger's seat and that there was only one person in the BMW.
In his ERISP the applicant said, after securing the BMW he walked through "about two, three kilometres of solid bush" arriving at Kimbriki Tip at Terrey Hills just after 1.00pm. He telephoned Anne Heidemann and asked her to collect him. He also telephoned his mother to inform her that she would be contacted by police in relation to a collision.
I return to the evidence of Anne Heidemann. She said while she was waiting outside Mrs Docker's house she received a telephone call from the applicant, whom, she stated, said "he'd had an accident he may perhaps go to gaol for it and had I seen it". He asked her to come and pick him up from Terrey Hills Tip. She drove there and collected him.
On the drive back to the Docker house, the applicant and Ms Heidemann formed a plan to say someone other than the applicant was driving and they made up a name Jenkins, and also his description. They agreed to say Jenkins had a licence and that the applicant would say that Jenkins showed him the licence.
Mrs Docker was told the story of Jenkins driving. Ms Heidemann said that she and Mrs Docker went in the former's Mitsubishi to where the BMW had been left. The applicant remained at the Docker house. Ms Heidemann and Mrs Docker remained in the area where the BMW had been left for about half an hour.
Ms Heidemann was unsure whether she went back to the Docker house or to the Mona Vale Police Station. She thought that they were notified that the applicant had been picked up at the Docker house and taken to Mona Vale Police Station. She went to Mona Vale Police Station, sat with the applicant and discussed what they had talked about earlier regarding the driver. After she had spoken with the applicant she left the police station. She believed that she made her statement later that day.
Ms Heidemann agreed that before she made her first statement to the police she knew that the BMW had been involved in a fatal collision. She agreed that when she saw a police officer in March 2001 she told him that she did not know there was someone killed when she made her first statement that was wrong. (Cons Boon gave evidence that this is what she said). She accepted that she told the police on 19 June 2002 that she would not have made the original statement if she had found out that the driver had died. She agreed that that was not correct at the time.
Ms Heidemann said that she did not bring her mother into supporting the false story as to Jenkins and accepted that on 23 July 2000 she told the police "My mother then told me that she heard Gerald out the front of my house about 3am this morning talking to a male person. Her window's right near where my car was parked", and "Mum further stated that she heard my car leaving shortly after hearing Gerald talking to the male out the front." Ms Heidemann said that she said this to bolster the lies she had told. She said she could not remember whether she discussed with her mother where she was going after she received the telephone call from the applicant asking her to come out to McDonald's, Lansvale.
Ms Heidemann agreed that when she told the police on 23 July 2000 that the applicant had left a note saying, "Jenkins and I have taken the car and its safe" that was a false statement.
Ms Heidemann agreed that before she went to the police in March 2001 she had requested the applicant to pay a particular cheque for $250, the applicant having stopped payment of the cheque. She left this message to be passed on to him "I've given the cheque to the real estate agent. I understand there's a problem with it. As I told Gerald the money will be paid back by the weekend. If he does not want to give me the money I will withdraw my statement" (her statement to the police of 23 July 2000).
Ms Heidemann admitted to being dealt with by the Supreme Court in Brisbane in 1993 for supplying a dangerous drug for which she received a community service order. In 1994 and 1997 she was dealt with by the Courts for dishonesty offences. On a number she was fined; she was also placed on a good behaviour bond. On 30 August 2001 she was arrested and charged with receiving, goods in custody and making a false statement. These charges were not dealt with until 23 May 2003. There were further dishonesty offences in late August and early September 2001. These matters were not finalised until 23 May 2003. In September 2001 she was arrested and charged with two drug offences. She was dealt with for having two lots of drugs in her possession about 11 September 2001. She had been arrested on 30 August, 5 and 11 September and 16 October 2001. She was refused bail initially and was in gaol at Mulawa. She disliked gaol. She had a drug problem. In January 2002 she was charged with two further dishonesty offences. She was committed for trial to the District Court on 17 April 2002.
On 5 March 2002 she telephoned Mr Brett Samuel, the police officer in charge of the case against the applicant, told Mr Samuel that she could give him information in relation to Mr Docker, and requested assistance from him (Samuels) as to her matters.
After she had been committed for trial and a trial date of 22 July 2002 was set on 26 April 2002, she went, on 19 June 2002, to the police and made a further statement. On 22 July 2002 she pleaded guilty to a charge of attempt to destroy evidence knowing that it might be required as evidence in certain court proceedings. The other matters were still outstanding. The sentencing proceedings were stood over on a number of occasions while she and her solicitor unsuccessfully sought to obtain a letter of comfort. She understood before she made her statement on 19 June 2002 that if she made a statement in another criminal matter, supporting the Crown case, she could expect a substantial discount from any sentence that might otherwise be imposed. She would do anything she could to stop going to gaol.
On 19 June 2002 Ms Heidemann thought she was going to get a letter of comfort. On 2 May 2003 she was sentenced to two years gaol, suspended on her entering a bond. On 20 May 2003 the Local Court dealt with the remaining matters. Ms Heidemann rejected the proposition that she was prepared to tell lies in Court. She agreed she had a history of drug dependency.
Ms Heidemann agreed that when at the committal proceedings she told the magistrate that she did not ascertain that there had been a fatality in the accident until one or two days after the accident it was a lie.
Ms Heidemann also told lies in those proceedings when she denied she had sought help from the police prosecutor with her sentence proceedings in return for her assisting the prosecution case against the applicant. She accepted that she had told lies in the committal proceedings.
Ms Heidemann rejected the suggestions that she had changed her story because she was worried about going to gaol and that her original story was the truth. She denied that she had prevailed upon her daughter, Rebecca, to help her with her lies. Ms Heidemann said that she received no benefit from changing her statement and giving evidence.
Rebecca Gates, Ms Heidemann's daughter, born 14 March 1986, gave evidence that on the night before the incident in Mona Vale Road the applicant stayed at her mother's house. Some of her friends, her younger brother and her grandmother were also staying there. About 4am on the day of the incident she heard her mother's car start and this alarmed her. She thought that her mother was leaving so, as the car drove up the driveway she looked in the car and noticed that Mr Docker was in the Mitsubishi and her mother was not there. She could not see any person other than the applicant in the car. Ms Gates said that from the window of her bedroom she could see through the front window screen as the car went reversing up the driveway which is on an incline. Ms Gates said that she went back to bed. She was awoken later in the morning by a telephone call from the applicant. She said that he said that the police had picked him up with her mother's car and that he needed her to come out there because the police had taken the keys off him and he was not allowed to drive the car, and the owner had to pick up the keys. Ms Gates woke her mother and handed her the telephone. The applicant was still on the telephone.
Ms Gates said that since the incident she had numerous telephone conversations with the applicant, the contents of which were to the same effect. The applicant told her that she had to say that someone was driving the car when he was in it and that the applicant was not driving the car. Ms Gates said that she thought that her grandmother was sleeping in her brother's room, but her grandmother said that she was in Ms Gates' room She could not remember. She first conveyed this information to the police about two weeks previously.
Miss Gates said that she and her friends were in her bedroom talking and that her friends left after she heard the car. Her mother was in her own bedroom and Miss Gates believed she was asleep. When she heard the car she was alarmed that her mother was getting out of bed at 4am. She imagined it must be for a serious reason. When she saw the applicant in the car she assumed that he must be going to his house which was nearby.
Miss Gates said the car lights were not on but the side light underneath and where the car is parked comes on automatically. She was unable to say whether the light helped her to see inside the vehicle. However, the light from her bedroom helps to light up the driveway. There was also an upstairs light in the house.
Later Miss Gates said that she did not remember what time she heard the car start up, but it was in the early hours of the morning.
Miss Gates said that she saw the whole of the applicant's face. He was looking up and forward as he reversed up the driveway. When she noticed her mother was not with him she went back and talked with her friends.
Miss Gates said that the applicant told her that if anyone ever asked her she should say that someone other than the applicant was driving the BMW.
Miss Gates said that you could see the driveway from her bedroom, her mother's bedroom, the kitchen (if you got up a bit), or where the sliding glass door is downstairs. She did not know where her mother was sleeping in July 2000. Her grandmother stayed with them for a period of about two weeks, but she did not remember precisely how long.
Miss Gates thought, but was not sure, that her grandmother slept in the lounge room. She said that usually she was the only one upstairs and she had a vague recollection of having to be quiet because her grandmother was upstairs. Miss Gates said that her grandmother might have slept in her (Miss Gates') room, but that she did not remember where her grandmother stayed in the house.
Mrs B Cleary, the mother of Anne Heidemann, and the grandmother of Rebecca and Tyrone, gave evidence that in July 2000 she was visiting her daughter and her grandchildren. Mrs Cleary said that she slept in Rebecca's room upstairs, and that Rebecca and her friend, Sarah, slept in the lounge room (or living room) which was also upstairs. Mrs Cleary said that she went into the kitchen about 3.30am and took some Panadol. The applicant came upstairs and was dressed. In response to a question from Mrs Cleary, the applicant said, "I've got to go out for a while." Mrs Cleary did not hear or see anybody with him. The applicant went downstairs. Mrs Cleary returned to Rebecca's room. She was not sleeping very well and was standing at the window. She heard one car door shut but nothing else. She did not hear any voices. Her daughter's car was "revved up". That was necessary because of the steep slope of the driveway. After she saw her daughter's car going up the driveway Mrs Cleary went back to bed. The next thing that happened was her daughter came upstairs and told her she had just received a phone call from the applicant to go and pick up his mother's car and pick him up because the police would not let him drive her car home.
Mrs Cleary said that after lunch on Sunday, 23 July 2000, the applicant telephoned her and asked if she had heard from her daughter. On Mrs Cleary replying, "No", the applicant said, "Well, I'm at home and she's just taken my mother up to get the car there's been an accident. Mrs Cleary said that later that evening when both her daughter and the applicant came back to her daughter's house the three of them were talking about the accident. Mrs Cleary said that she asked, "Well, how did it happen?" The applicant replied, "I clipped a car and went across the median strip and down a bike track.
Mrs Cleary said that the applicant and her daughter were talking together and just made up a name and that when she (Mrs Cleary) asked, "Who's that", they said, "It's nobody, they'll never find him, it's nobody." Mrs Cleary said that she asked, "But what about the fingerprints?" The applicant replied, "They won't finds any fingerprints on it," explaining that they had all been wiped off. When Mrs Cleary queried this her daughter explained that the fingerprints would have been wiped off with a glove.
Mrs Cleary said that she had first made a written statement that day and that she did not know until 5pm the previous day, when Sgt Samuels telephoned her, that she was to come to court. She lived on the Sunshine Coast and said that they had driven all night, arriving in Sydney about 6am. She had spoken to her daughter. Rebecca had sent her a message that she (Rebecca) was in her (Rebecca's) bedroom, but she (Mrs Cleary) said that she had no knowledge of Rebecca being in that room. Rebecca had sent this message to her after Mrs Cleary had made her statement to the police. The message was sent via Mrs Cleary's friend.
Mrs Cleary said that she did not pay much attention to the vehicle reversing up the drive, her daughter's car being the only one down there (at the foot of the drive). She was asked by the police that morning if she heard voices and she had not heard any voices.
Mrs Cleary said that at the time of the accident or shortly thereafter, she knew that her daughter had told the police that she had been told by her (Cleary) that she (Cleary) had heard voices. She had not read her daughter's statements until that day, that is the day she gave evidence. Her daughter had given her the two statements and some newspaper clippings. She had read those statements that morning.
Mrs Cleary said that her daughter handed to her the statements which she had made after she (Mrs Cleary) had seen Det Samuels and he had obtained a statement from her. She had no discussions with either her daughter or Rebecca before she made her statement that day.
Mrs Cleary affirmed that Rebecca was not standing beside her at her bedroom window looking up the driveway as her daughter's vehicle was driven up the driveway by the applicant. Mrs Cleary said that she did not specifically attend to look at the vehicle. She just happened to be at the window. She saw it go up the driveway.
Mrs Cleary said that during the conversation on the Sunday evening the applicant did not say in as many words that he was driving. She said that there was some discussion as to who had been driving and her daughter and the applicant both said it was a made up name.
The overall impression gained on reading Mrs Cleary's evidence is that it was credible and reliable evidence. It was open to the jury top take such a view and it would be surprising if they took any other view.
Mrs J E Docker, the applicant's mother, gave evidence that he lived with her in Barrenjoey Road, Newport and had done so for quite a while. She said that a black BMW was registered in the name of Mullingeen [Pty Ltd,] the family company. She recalled that in July 2000, and she thought it was a Sunday, the applicant telephoned her and asked her to give Anne Heidemann the BMW to come and pick him up from the city. He explained that Ms Heidemann's car was with him. They did not discuss how he came to be in the city. She thought it was about 10 or 11 in the morning. She allowed Ms Heidemann to take her black BMW. Mrs Docker said that the applicant telephoned later, about 1.00pm, and told her, "We've had a prang." Mrs Docker asked, "Is Anne all right?" He replied, "Anne wasn't driving." The applicant told her that "his mate" was driving and "he showed me a licence but when we had the prang I woke up and we'd had a prang." Mrs Docker stated that she said, "Don't worry the car's insured." The applicant replied, "… I think it was a bodgie licence." Mrs Docker thought he said. "I'll get Anne to come and get me." This passage appears: "Q. Did Gerald tell you the name of the mate? A. Yes J - Peter Jenkins.
Q. Had you heard the name Peter Jenkins before? A. I an not sure. I am not sure."
She described the applicant as sounding agitated and upset. Mrs Docker had no idea from where the applicant was telephoning, save that she knew that "he was off a street off Mona Vale Road".
Miss Heidemann brought the applicant home. Mrs Docker said that later Miss Heidemann, in her car, came and collected Mrs Docker and drove her to the place where the BMW was parked. There, according to Mrs Docker, she and Ms Heidemann found out that the accident had given rise to a fatality. Mrs Docker said that she told the police that the applicant was at home and that they went and brought him to the police station.
Mrs Docker was pretty sure that she made a statement at Mona Vale Police Station. She said that the applicant was very distressed when she told him that there had been a fatality. Mrs Docker did not have a clear recollection of the sequence of events from shortly after lunch on the day of the accident.
Mrs Docker, while acknowledging that in her statement she said that the applicant had mentioned something about changing lanes, had no recollection of him saying so.
Mrs Docker said that when her son referred to the name of the individual driving the BMW he used the initials J and D, either JD or DJ. She said that he used the initials. She could not remember whether the name "Jenkins" was mentioned in the initial conversation with the applicant or later.
Mrs Docker stated she was feeling very distressed when she made her statement to the police. She said that she had made a mistake when she referred to Peter Jenkins. She stated that she knows now it was Danny Jenkins. Mrs Docker did not think that she read her statement when she signed it. She did have a memory of the applicant when he rang her, using the initials "DJ".
The judge gave the Crown Prosecutor leave to cross-examine Mrs Docker about the use of the name Peter Jenkins and her state of mind when she made her statement. Mrs Docker said that a male police officer told her she could not collect her BMW, as it had been involved in a fatal accident.
Mrs Docker agreed that on the day of the accident the police did not force her to make a statement or pressure her and that, on the police asking, she agreed to make a statement. She thought her memory was probably better when she made her statement, as she had since had a lot of health problems. Mrs Docker said that she must have got confused when she told the police that her son had told her that the name of the driver was Peter Jenkins. She did not know how she had got confused about that.
Mrs Docker agreed that although she had conferred with the Crown Prosecutor and her instructing solicitor she (Mrs Docker) did not tell them she wished to change her statement in relation to the name Peter Jenkins. She had mentioned other changes.
William Lake was a customer at Kimbriki Tip. He arrived there about 12.50pm. As he left one section of the tip and was driving up the road a man ran out of the eco section and flagged him down. The man was sweating, dripping, panting, scruffy, with his shirt hanging out and he was in a panicked state. He asked for a lift up to the top of the road, meaning Mona Vale Road., He wanted to get to a phone. Mr Luke explained that he was not going in that direction. The man asked to use Mr Lake's mobile phone and to pay for such use, but Mr Lake explained that he did not have his mobile phone. He said that the man was a tall, skinny type of fellow. That incomplete description is consistent with the general build of the applicant.
Mr Stephen Love was employed by the Warringah Shire Council as a worker at Kimbriki Tip on 23 July 2000 when a man walked into the small office. Mr Love stated that the man said that he needed to make a telephone call and handed him some coins to cover the cost. The man said, "I've broken down, I need to make a phone call, I need to ring my wife." The man had a thinner build, black, scruffy longer hair and was hot sweaty and flushed. He allowed the man to dial a mobile telephone number. When he got through the man was forceful, advising that he had broken down and insisting on being picked up. The man made a second local call. He crouched down and adopted a position where it was harder for Mr Love to hear what the man was saying. His tone of voice was a lot quieter. Mr Love listened more intently, but only heard pieces of the conversation. The man said, "There's been an accident they'll contact you first, the car's not registered in my name." The man was under stress; his breathing was changing. He was a lot softer, quieter and not so demanding during the second telephone call. Later, when he (Love) pressed the redial button an older lady with a soft voice answered. The CCTV footage revealed that the man had entered the office at 1.11pm.
Katrina Nicole Ray was a passenger in the Subaru and suffered serious injuries including fractured pelvis, ruptured liver, ruptured spleen, bleeding from the right lung and bruising. She recalled an impact from behind and the Subaru spinning out of control. Her recollection of the details of the accident are "blurry". There was nothing about the deceased's driving at the time which concerned her.
Mr Brian Agnew was waiting to turn right from Aumuna Road into Mona Vale Road. It was approximately 1.05pm. He observed two cars coming towards him and the car nearest the centre of the road touch the other car which then lost control, skidded towards him and collided with the pole.
Det Snr Cons S Ell attended the applicant's home about 2.30pm on 23 July 2000. He was slouched over in a chair. She called out "police" on a number of occasions, but he did not respond. She entered through an open front door and spoke to him. He was not totally coherent, he was definitely under the influence of a drug. (T167.37) As he was arrested he said, "I wasn't driving; it was my mate." (T167.54) When he was asked who his mate was, he replied, "You know I can't tell you that." (T168.4) When asked where his mate was the applicant responded, "I don't know." The applicant was taken to Mona Vale Police Station.
Det Snr Cons M Bosworth accompanied Det Ell. Det Bosworth also formed the opinion that the applicant was "under the influence of drugs at the time. His speech was slurred and his eyes were glazed, yeah, he'd sort of gone on the nod". (T174.49) At the police station the applicant asked, "What am I doing here?" Det Bosworth responded, "You left the scene of a serious accident." (T175.20) The applicant stated, "We pulled up, it was only the left hand panel." The applicant declined to believe that the driver of the other car died. When asked who was driving he said, "I'm not saying anything else." (T176.6) Det Bosworth said that Ms Heidemann, Mrs Docker and the applicant were speaking together in the charge room at Mona Vale Police Station.
Snr Cons Brendan Smith took Messrs Morris and O'Toole down Kamber Road to look at the BMW. Cons Smith gave evidence of the location and identity of buildings on Kamber Road and the location of the tip. He took the second statement from Ms Heidemann on 19 June 2002. When challenged in cross-examination as to why he did not conduct "photographic line-up of BMWs rather than taking Messrs Morris and O'Toole to see the applicant's BMW, Cons Smith indicated that a particular model of BMW had been identified and said, "As far as I could see if you did a line-up of all 5 Series black BMWs they would be identical." That was a compelling answer.
Sgt Jeffrey Boon attended the collision scene. On 18 March 2001 Ms Heidemann attended at Mona Vale Police Station and told him that she wanted to withdraw her statement. She said she only gave the statement because the applicant and his family were good to her. (T259-260), and "I wouldn't have given the statement if I knew someone was killed. Now I don't want anything more to do with it and I want to withdraw my statement." (T259.53) Ms Heidemann continued, "Well he took my car out to Cabramatta and then police rang me up and told me to come and get it. I borrowed Docker's Mum's BMW and drove to Cabramatta. I got my car back and gave the keys to the BMW to Docker. He drove the BMW and I followed him, I mean them back (261.14). Sgt Boon was not cross-examined.
During the conversation with Sgt Boon Ms Heidemann said that she did not speak to the applicant any more.
Sgt Brett Samuels said that he made enquiries at the Fairlight Clinic and they had no record of a Danny, David or Peter Jenkins. (T 423.33) They did, however have a record of the applicant attending. (T423.40) Sgt Samuels tried to locate Jenkins through the RTA computer system but the search called up about 40 Danny's, 40 Daniel's, 210 David's and 120 Peter Jenkins. (T423.45) Without an address he was unable to take the search any further.
Sgt Samuels stated that no fingerprints could be found on the BMW. On 5 March 2002 he was contacted by Ms Heidemann who indicated that she did not want to perjure herself in court and that she knew the applicant was driving. She also asked for some assistance with some matters of her own. At the time Ms Heidemann contacted him he did not know that a letter of comfort could be provided. When Ms Heidemann approached him asking if the police could assist with her matters Sgt Samuels said they could not.
Mona Vale Road has 60, 70 and 90 kmph speed zones on various stretches between the Pacific Highway and the scene of the collision and if a vehicle was averaging 60 kmph it would take 12 minutes to cover the 12 kilometres between those points. It was about 9 kilometres from Kimbriki Tip to Mrs Docker's house..
The applicant declined to supply a blood sample when requested to do so.
Snr Cons Mills gave expert collision reconstruction evidence based solely on the photographs, photogrammetry plan and the statements produced during the investigation of the collision. Based on the yaw marks visible in the photographs and marked on the photogrammetry plan, Cons Mills formed the opinion that the Subaru was in the kerbside through lane when it was hit. Cons Mills did not think it was possible that the Subaru could have moved into the lane in which the BMW was travelling, collided with the BMW, steered back into its own lane and then, through a sudden steering movement, begun to yaw and thus left the yaw marks in the original lane in which the Subaru was travelling. Snr Cons Mills agreed that he could unequivocally rule out the scenario. That scenario does not sit comfortably with the eye witness accounts.
Dr J Perl, a pharmacologist qualified to give expert evidence on the effect drugs have on human physiology, perceptions and behaviour, said that Rohypnol induces sleep. In 2000 Rohypnol was available as a prescription drug in a 2mg tablet and on the black market. A normal dose was half a tablet; in a tolerant user sometimes a full tablet. Two tablets (the amount the applicant said he consumed, is a high dose. Of that dose, taken about 7.30-8.00am after limited sleep, Dr Perl said: "…I would certainly expect impairment … Two tablets is more than a prescribed dose would be … I would expect the person to appear drowsy, … drooping eyelids, probably glazed, reddish eyes, poor co-ordination, slow movements, slow actions, speech may be slurred, it may just be slow. In terms of driving ability there would definitely be impairment of things like their perceptions, their judgment, reaction skills, co-ordination functions, all the important functions that would be involved in the driving task."
As to driving, Dr Perl stated, "Generally I would expect weaving, drifting on the roadway." A fairly traumatic event such as a collision could cause an adrenalin rush that temporarily replaced the effects of the Rohypnol, however the Rohypnol would outlast the adrenalin rush. (T100-101) A dose of two tablets would produce an observable effect for at least six to eight hours.
Dr Perl said that every individual does not experience the same intensity or degree of effect, but that all individuals are affected in the same way. She agreed that a 1 mg tablet was available towards the end of 2000. Regular users develop a tolerance and it is possible to develop a cross-tolerance from other drugs in the same class as Rohypnol.
Fatigue combined with Rohypnol produces an additive effect resulting in greater impairment of driving skills. Drivers affected by Rohypnol tend to drive at slower speeds, are frequently involved in crashes and are sometimes found asleep at traffic lights. Dr Perl said that the taking of Rohypnol always has an impact on performance.
The applicant did not give evidence at the trial and no evidence was called on his behalf. His case appeared from the answers he gave during his ERISP, parts of which have earlier been mentioned. He contended: (a) He was not driving the BMW; a man called Jenkins was
(c) On the keys to Heidemann's car being taken by the police she, at his request and pursuant to arrangements he initiated, drove to Cabramatta in the BMW. She retrieved her keys and her car
(d) Jenkins drove the BMW back to Mona Vale and on the way clipped the blue Subaru on the driver's side rear area. Jenkins said his licence, which he had produced earlier, was a bodgie. After the BMW had been driven to the end of Kamber Road, Jenkins bolted
(e) It was not open to the jury to be satisfied beyond a reasonable doubt that the BMW Messrs Morris and O'Toole had seen was the BMW that the applicant was in or that Mr Morris had correctly observed only one person in the BMW.
(f) It was not open to the jury to be satisfied that Mr Gracanin could be certain there was only one person in the BMW.
(g) Ms Heidemann was an unreliable witness. She had a motive to lie because of a disagreement with the applicant over money and she was seeking police assistance with her own charges to avoid being sent to gaol. She had a record for dishonesty. Her initial statement was true. It was the second one which contained the lies.
(h) The evidence of Ms Heidemann's mother and daughter was inconsistent and unreliable and provided in an effort to assist Ms Heidemann I now turn to the grounds of appeal.
Admissibility of The Evidence of Messrs Morris & O'Toole
The applicant contended that the probative value of their evidence of identification of the BMW was extremely slight and should not have been admitted. Reliance was placed on s 137 of the Evidence Act 1995.
It was further submitted that in Snr Cons Smith taking Messrs Morris and O'Toole to the end of Kamber Road what occurred was akin to a dock identification. They expected to see a black Series 5 BMW.
The applicant's approach to the evidence of Messrs Morris and O'Toole is unsound; it is too compartmentalised and does not allow for the totality of the evidence.
It is plain that a black Series 5 BMW, with non-factory wheels, was proceeding along Ryde Road and then under the Pacific Highway and along Mona Vale Road. Ms Heidemann was following it. She said that the applicant drove the car from Lansvale. She did not see Mr Jenkins. He was not around when Sgt Pearsall took the keys to the Mitsubishi, although he had allegedly driven the Mitsubishi from the Newport-Mona Vale area to Cabramatta-Lansvale.
A BMW was being driven along Ryde Road in a somewhat erratic fashion consistent with the driver having taken Rohypnol. When arrested later at his home the applicant was under the influence of a drug. Holding an identification parade with a number of black Series 5 BMWs with non-factory wheels would have been an arid exercise. All that Messrs Morris and O'Toole could say was that the black Series 5 BMW they saw at the bottom of Kamber Road had the same appearance as the one that was seen on Ryde Road. As was pointed out black Series 5 BMWs with non-factory wheels are quite common.
The nature of the collision on Mona Vale Road was consistent with the BMW driver being under the influence of Rohypnol.
While the evidence of Ms Heidemann and Ms Rebecca Gates was fairly open to criticism the evidence of Mrs Margaret Cleary as to speaking to the applicant just before he left her daughter's house and drove away in her Mitsubishi and not hearing voices was not. Mrs Cleary demonstrated that she was not prepared to tailor her evidence to fit in with that of her daughter and granddaughter.
There was also the evidence of Mr Gracanin and Mr Morris that they saw only one person in the BMW.
The inconsistencies in the account given by the applicant in his ERISP as to the first name of Jenkins and where he allegedly met him were telling, as was the absence of reasonable details as to Jenkins. The version of events given by the applicant in his ERISP was not credible.
The Crown relies on the evidence of Messrs Morris and O'Toole not as proving by itself that the applicant was driving the BMW when the accident occurred, but as part of the overall circumstances from which an inference to that effect can be drawn. The jury would have appreciated this. So much was obvious.
The judge did not err in admitting the evidence of Messrs Morris and O'Toole. Appeal Ground 1 should be rejected. Were the Verdicts reasonable and supported by the evidence
The applicant submitted that it was not upon the whole of the evidence open to the jury to be satisfied beyond reasonable doubt that he was guilty.
The applicant subjected the evidence of the Crown to a detailed and critical evaluation and pointed to alleged deficiencies and the unsatisfactory features of the conduct and evidence of Ms Heidemann and Rebecca Gates. I have examined the whole of the evidence and paid particular attention to the many detailed criticisms of the applicant.
This Crown case was a circumstantial one. When all the circumstances are combined this was a strong Crown case. It was reasonably open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt of the guilt of the of the applicant. I follow and apply M v The Queen (1994) 181 CLR 487 at 493-4, Jones v The Queen (1997) 191 CLR 439 at 452 and MFA v The Queen (2002) 213 CLR 606 at 614-615 and 622-624. Appeal Ground 2 should be rejected.
Is Sentence Manifestly Excessive Did the judge err in failing to find special circumstances?
(b) The applicant told a psychologist that he "enjoyed being off the drugs now I am in here"
(c) The report of the consultant psychologist stated "he would benefit from available courses and programs to this end but would be more suited to continual one to one counselling with a clinical psychologist. (This would require follow up after his eventual release to help prevent relapse)."
(d) The applicant had not previously served any sentence in excess of eight months 133. In his Remarks on Sentence the judge noted that the maximum penalty as to Count 1 (dangerous driving occasioning death) was 10 years and as to Count 2 (dangerous driving occasioning grievous bodily harm) was 7 years and that there was an automatic period of disqualification of 5 years which he ordered to start from 5 December 2003. The judge relied principally upon the decisions of this Court in Jurisic and Whyte.The judge took into account: (i) the death of Mr Flanagan, the driver of the Subaru and the serious injuries suffered by Ms Ray
(ii) the number of people put at risk - the journey from Lansvale to the place of collision covered a significant distance in excess of 20 kilometres. Much, if not all, of this journey was along major roads. The BMW drifted in and out of lanes on Ryde Road so that Messrs Morris and O'Toole decided to keep clear of it. The best estimate of the time this took was five to fifteen minutes. People were put at risk
(iii) the applicant was significantly and adversely affected by substance abuse
(v) the applicant failed to stop. He drove off down Kamber Road and then made off through the bush
In lieu thereof the applicant is sentenced to imprisonment for 5 years commencing on 4 August 2004 and expiring on 3 August 2009 with a non-parole period of 3 years 6 months commencing on 4 August 2004 and expiring on 3 February 2008. 6. The applicant will be eligible for release to parole on 3 February 2008. In setting the parole conditions consideration should be given to measures designed to prevent a drug relapse by the applicant.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Regina
Docker
CITATION: Regina v Docker [2005] NSWCCA 425
(1998) 45 NSWLR 209
(2002) 213 CLR 606
(1998) 194 CLR 610
(2002) 55 NSWLR 252
(1994) 181 CLR 487
(1997) 191 CLR 439