Court of Appeal (Vic)|2010-11-04|Before: ASHLEY, REDLICH and WEINBERG JJA

Wells v The Queen (No 2) [2010] VSCA 294 (4 November 2010)

R v Wells (Unreported, County Court of Victoria, Judge Murphy, 1 October 2010)

1 The applicant seeks a review of a refusal by a judge in the County Court to issue him a certificate pursuant to s 295(3) of the Criminal Procedure Act 2009 (Vic) ('the Act') for leave to appeal against a number of interlocutory pre-trial rulings in proceedings in which he is charged with one count of culpable driving.

2 This is the second application for review that the applicant has made to this Court. In the previous application, which was heard and refused by this Court on 30 April 2010,[1] Ashley JA summarised the facts as follows:

The applicant was driving a utility vehicle along the Hume Hwy on the afternoon of 13 April 2007. Having diverged [to the left] to pass another vehicle, his utility, it seems, did not straighten, but instead travelled wholly or partly into the emergency lane and collided, generally nose to tail, with a stationary Ford sedan. The impact was very forceful. Both vehicles were extensively damaged. An occupant of the stationary vehicle was killed.

There was no evidence that the utility's brakes had been applied before the collision. Nothing indicated that the applicant had swerved in an attempt to avoid the collision.

The applicant was injured in the collision. On his account, not conceded by the Crown, he has no recollection of the collision, and so can cast no light on how it came about.[2]

3 The prosecution alleges that the applicant culpably drove his vehicle causing the death of George Bellikoff by driving the vehicle (a) negligently, or (b) whilst under the influence of a drug (namely, 'THC'/cannabis) to such an extent as to be incapable of having proper control of the vehicle. The prosecution case against the applicant is circumstantial.

4 Subsequent to the previous application being refused, the judge conducting the trial was called upon, before empanelment, to make numerous further rulings as to the admissibility of certain evidence; and further stay applications were made. Given the interruption to the trial which inevitably results if there is an interlocutory appeal, and the strain which is imposed on the limited resources of this Court when such appeals are pursued, the Court expressed its concern to applicant's counsel that his client did not wait until all issues had been raised with the trial judge, and rulings obtained, before making an application. All of the pre-trial rulings could have been sought and obtained before any interlocutory appeal was undertaken. In another case, it may well be necessary for this Court to consider whether the interests of justice would be served by granting leave where compelling reasons were not present which justified pursuit of pre-trial issues in a fragmented and disruptive way.

5 The rulings in relation to which the applicant (unsuccessfully) sought certification from the trial judge and in respect of which he seeks leave to appeal to this Court are:

(1) A ruling that two witnesses, Drs Odell and Chu, were qualified so as to be able to give expert evidence.

(2) Two rulings with the combined effect that evidence relating to:

(a) the applicant's epilepsy, the levels of phenytoin (an anti-convulsion medication) in blood samples taken from the applicant after the collision, and the applicant's history of non-compliance in relation to taking the phenytoin; and

(b) the levels of THC (cannabis) in the applicant's blood, and what effect that has on psychomotor functions,

was relevant and therefore admissible, and should not be excluded in the exercise of discretion under s 135 or s 137 of the Evidence Act 2008 (Vic).

(3) A ruling that the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('the Charter'), specifically s 25(2)(h), is to be interpreted as replicating the common law rules relating to avoiding unfairness of trials, and not as creating new 'positive' rights to a fair trial.

(4) A ruling that a permanent stay of proceedings was not warranted, either under common law principles or s 25(2)(h) of the Charter, by the combination of the destruction of the applicant's vehicle, the cross-examination of the expert who examined his car, the need to rely on the Crown assessment of the blood samples, the finding by police officers of a taillight, and the applicant's loss of memory.

6 In considering an application for review of a decision by a trial judge not to certify, the Court must consider for itself whether the criteria for certification in s 295(3) are satisfied.[3]

7 In McDonald v DPP[4] it was said that if the judge who makes the interlocutory decision considers that the rejected argument is without merit, so that the appeal would be hopeless, or does not regard the decision made as being attended by sufficient doubt, the issue will not possesses the quality of 'sufficient importance to the trial' to warrant certification as required by s 295(3) (b) of the Act.[5] That principle is squarely relevant to one aspect of the present application; and it is relevant by analogy with the other aspect.

The threshold question - Would the prosecution case be substantially weakened if the evidence was excluded?

8 Under the Act, certification of rulings concerning the admissibility of evidence may only be granted if it is established that the evidence, the subject of the rulings, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.[6]

9 One of the bases upon which the trial judge refused to certify was that even if the evidence concerning the influence of cannabis on the applicant's driving or his under-medication for his epileptic condition was all inadmissible, the exclusion of that evidence would not substantially weaken the prosecution case. Counsel for the Crown maintained that argument before this Court. He submitted that, if all the evidence concerning epilepsy, phenytoin and cannabis was to be excluded, the Crown case, based upon the following particulars of negligence remained a strong one:

(i) Failing to keep a proper look out for the stationary vehicle in the emergency lane; and/or

(ii) Failing to steer his vehicle so as to remain within the marked carriageway; and/or

(iii) Failing to maintain a proper control of his vehicle so that it did not enter the emergency lane when travelling at an unsafe speed; and/or

(iv) Failing to maintain a proper control of his vehicle so as to avoid a collision with a stationary vehicle in the emergency lane; and/or

(v) Failing to brake or manage his vehicle to avoid a collision with a stationary vehicle in the emergency lane.

10 Counsel submitted that the objective facts that the applicant's vehicle, in respect of which there was no evidence of mechanical fault, without apparent cause diverged into the emergency lane whilst travelling at between 93 and 106 kilometres per hour, and there collided with a stationary vehicle, supported the inference that the applicant was grossly negligent in his driving in at least one of the ways alleged in the particulars just noted. That may be so, but were the challenged evidence which bears upon the applicant's under-medicated state for his condition of epilepsy and the influence of cannabis on his driving removed from the case, the prosecution case would in our view be 'substantially weakened'. Accordingly, this Court must consider whether the admissibility rulings made by his Honour were attended with sufficient doubt as to warrant this Court granting leave to appeal.

Ruling 1 - The expertise of Dr Odell and Chu

11 The judge gave detailed reasons for his ruling that the Drs Odell and Chu were adequately qualified to give evidence as experts with respect to (1) the effect of cannabis, and (2) the low level of anti-convulsive medication in the applicant's blood samples, upon the applicant's ability to control his vehicle at the time of the collision. The applicant has failed to show any error in his Honour's comprehensive approach to the question of their expertise

Ruling 2 : (a) The relevance of epilepsy, phenytoin and history of non- compliance with medication evidence

12 A number of issues were raised in connection with what we have called Ruling 2(a).

13 First, counsel for the applicant submitted that the evidence of his client's epilepsy, the levels of phenytoin in his blood around the time of the collision, and his failure to consistently take his anti-epileptic medication was irrelevant to the Crown case as pleaded on the presentment. He submitted that, as the Crown was not specifically alleging that the applicant suffered an epileptic seizure which caused or contributed to the collision, it should not be permitted to allege that the applicant was negligent by driving whilst not having taken his prescribed level of anti-epileptic medication.

14 Those submissions were inconsistent with the applicant's 'summary of contentions and outline of submissions' filed in support of the present leave application, which recognised that the Crown in pre-trial argument had advanced an alternative case - that is, that the applicant had suffered an epileptic seizure immediately before the collision.

15 Counsel for the Crown conceded at the outset of the hearing in this Court that the presentment required amendment, as did the draft opening, in order to particularise the prosecution's alternative allegation that the applicant was negligent because he drove his vehicle when knowing that he was under-medicated. Counsel acknowledged that such a contention should have been separately particularised in the presentment. But he observed that the prosecution draft opening at the time of the ruling included particulars that the applicant drove the vehicle when it was unsafe to do so due to his non-compliance with anti-convulsant epilepsy medication. Counsel submitted that the trial judge had ruled the evidence relevant to the alternative case which the prosecution intended to mount.

16 Oral argument thereafter proceeded on the assumption that the presentment would be amended. The Crown was given leave to file an amended draft opening and both parties were given leave to file supplementary submissions directed to the amendments to the draft opening.

17 A proposed amended opening was filed. It states, in the alternative to the case that the applicant's grossly negligent driving brought about the collision and the victim's death, that the applicant 'had an epileptic seizure which caused him to lose control of his vehicle resulting in the collision'. It further states, somewhat more expansively than before, that 'the accused man was grossly negligent by driving his vehicle that afternoon up to the point of his epileptic seizure because it was unsafe for him to drive at all due to his non-compliance with anti-convulsion epilepsy medication resulting in an increased risk of seizure and he knew this to be the case'. The amended opening also states that there is no direct evidence of those facts. But it is clear from the opening, and from submissions made both before the trial judge and in this Court, that the prosecution relies upon inferential reasoning from circumstantial evidence to establish those facts.

18 In a variant of his first submission, counsel for the applicant contended that the prosecution had hitherto only sought to adduce evidence of his client's knowing non-compliance so as to exclude the possibility of an acquittal on the basis that he had suffered an epileptic seizure; and that it was not the prosecution's case that the applicant had in fact suffered a seizure - in which circumstances such evidence was irrelevant. But that contention was inconsistent with the trial judge saying this in a pertinent ruling:

The Crown in response submitted that it was relevant because the non-compliance with the phenytoin regime was of long standing, and that was relevant to the Crown's pleading that in the event that the accused did have a seizure, then there was gross negligence because the accused was aware that when he was non-compliant he faced the a risk of seizure. The Crown case is being put as one in the alternative as to gross negligence. The driving failures constituted by sub paragraphs (i) to (v) are the first point. The Crown in the alternative puts that if the accused did have an epileptic event, then by reason of the matters alleged in (vi) to (vii), he was negligent because he was on notice of his failure to comply with his anti- convulsant medication and that went back to the year 2000. The Crown in this sense is putting a case in order to close a hypothesis consistent with innocence, analogous to a case where the defence is alleging or when it was open for the jury to find that a driver has gone to sleep.

19 In the event, the argument advanced for the applicant was misconceived. It focussed upon the prosecution's motive for advancing an alternate hypothesis and not upon the fact that the prosecution by advancing the alternate case was stating its intent to establish that there was a seizure and the applicant's knowing non-compliance with medication.

20 Second, counsel for the applicant submitted that the prosecution could not be permitted to allege that it has evidence capable of establishing to the criminal standard that the applicant suffered a seizure. To do so would be an abuse of process because the prosecutor told the trial judge that there was no evidence that the applicant had a seizure before the collision. Counsel submitted that there should be a partial stay - that is, in respect of this aspect of the Crown case.

21 In oral argument, counsel submitted that the prosecution had not acted in good faith by seeking to advance an alternative case before the trial judge which would require proof of a fact of which the prosecutor had stated that there was 'no evidence'. He submitted that this part of the proposed Crown case should be permanently stayed. Again this misconceives the prosecution's apparent position. It seeks to rely upon circumstantial evidence to support such an inference. As the Crown now makes clear by its amended opening, the statement made to the trial judge about there being 'no evidence' was a reference to the absence of any direct evidence.

22 A partial stay of the prosecution case could only be justified if it could have been shown to the trial judge or this Court that the alternate basis for gross negligence was foredoomed to fail.[7] We do not understand the applicant to have advanced such an argument before the trial judge. Counsel for the Crown submitted before this Court that there is evidence from which it can be inferred that an epileptic seizure took place. He further submitted that the question was an evidentiary one, which it was premature for the trial judge to consider.

23 It is clear enough from the judge's rulings that he did consider that there was evidence, which could support such an hypothesis. We see no reason to disagree.

24 Third, counsel for the applicant submitted that the proposed evidence was irrelevant because - either during argument, or else after his Honour's ruling on this issue - he had eschewed any suggestion that his client would suggest that an epileptic fit was an explanation for the collision.

25 This further contention, advanced below, was but faintly pressed during argument before us. The judge rejected it in a supplementary ruling. We see no error in him doing so. He adverted to some of the evidence that bore upon the applicant's condition of epilepsy, the finding that the phenytoin was at a sub-clinical level, and the obligation of the prosecution to exclude all hypotheses consistent with innocence. His Honour rightly perceived that an admission by the applicant that his driving was voluntary at the time of the collision would be of very limited assistance. The applicant claimed he had no memory of the collision or the events which immediately preceded it. But he also claimed that he did not have a seizure. The trial judge was right to conclude that the prosecution was not relieved of its obligation to prove the applicant's guilt by excluding all innocent hypotheses. Moreover, the prosecution remained entitled to pursue its alternative case that the applicant's driving, though not voluntary at the time of the collision was the result of a seizure; and that the evidence of his history of failing to take the phenytoin was relevant to whether the applicant had been knowingly non compliant.

26 Fourth, applicant's counsel contended before this Court that the prosecution was not entitled to posit particulars of negligence that were 'mutually exclusive' and which would enable the prosecution to pursue inconsistent cases in which it was said, on the one hand, that the applicant's manner of driving[8] was grossly negligent and, on the other hand, that he had suffered an epileptic fit and that his negligence was in driving while knowingly non-compliant with medication. That submission cannot be sustained. The prosecution is not precluded from pleading alternative or mutually exclusive negligent acts or omissions.[9]

27 Whatever the forensic disadvantages in doing so, the prosecution is presently entitled to pursue more than one hypothesis which is supported by some evidence. Either hypothesis, if accepted, is arguably sufficient to establish the prosecution case that the applicant drove in a grossly negligent manner, and that the driving was causative of death. His Honour was not at this point of the trial concerned with the sufficiency of the evidence, or whether it could withstand a 'no case' submission.

28 We should, for completeness, add this. If the jury remains charged with the alternate hypotheses as to how the applicant was grossly negligent, they may have to be instructed that they could only convict the applicant if they were unanimous about the manner in which the applicant was negligent.[10] In that case, the basis for a guilty verdict would not be apparent, so that a conviction might be vulnerable on appeal if one of those bases was unsafe and unsatisfactory.

29 It has not been shown that his Honour erred in ruling the proposed evidence relevant and admissible.

30 Counsel for the applicant submitted that the Crown should not be permitted to argue negligence on the basis of the applicant's use of cannabis and the effect that could have on his ability to properly control a vehicle. It was said that Drs Odell and Chu could not give evidence as to the ultimate issue - that ingestion of cannabis prior to the time of the collision would have influenced the applicant's behaviour to such an extent that he was incapable of having proper control of his motor vehicle.

31 That submission cannot be upheld. Regardless whether the doctors would be permitted to give evidence as to the 'ultimate issue', the judge's findings showed that there was a basis for receiving their evidence. They had apparently given evidence that it was extremely likely that the level of cannabis in the applicant's blood (11 mg) would have adversely affected his driving skills. His Honour referred in the pertinent ruling to the fact that Dr Odell had given evidence that THC does have an effect on psychomotor functions and that both doctors had given evidence that due to the level of cannabis in the blood sample, read back to the level at the time of driving, it was highly likely that applicant would have been under the influence of cannabis.

32 An attempt was made by counsel for the applicant to raise for the first time on the hearing in this Court an argument that these and other factual findings on which his Honour rested his rulings were not supported by the evidence. As counsel conceded, that argument was not specified by a ground of appeal, nor was it advanced in the applicant's written submissions. It was not raised with the trial judge when his Honour was asked to grant a certificate. During the hearing, the Court indicated its reluctance to entertain arguments that had not been raised before the trial judge, the Court being denied the benefit of his Honour's views as to the matters about which complaint was sought to be made.

33 As we have pointed out, the necessary expedition of interlocutory appeals depends upon the issues having been precisely identified in the material filed in support of the application. This alone would have been sufficient reason to refuse to entertain the submissions. But the applicant has in any event failed to provide the Court with any material which would enable it to assess the merit of the argument. Counsel ultimately acknowledged that it was therefore impossible for the Court to entertain the submission. In the event, no reason to doubt the correctness of the particular findings has been demonstrated.

34 Counsel further submitted that, even if the evidence concerning cannabis and its potential effect upon the applicant was admissible, it ought to have it excluded on the basis that its prejudicial effect outweighed its probative value.[11] The submission is without merit. The evidence was probative of the second limb of the Crown's case against the applicant. The risk of any prejudicial effect could be adequately addresses by an appropriate direction to the jury. No error is disclosed by the trial judge's refusal to exclude this evidence on a discretionary basis.

Ruling 3: The Charter and the application for a permanent stay

35 Application for a permanent stay was made on the basis that, as the evidence currently stands, the applicant will be disadvantaged in responding to the prosecution's allegations due to the destruction of 'critical physical evidence' - that is, the applicant's vehicle, the stationary vehicle with which it collided, and blood samples taken from him.[12] Counsel also relied upon his client's loss of memory as to the events in question as a factor requiring a stay of the proceedings against him.

36 These arguments in support of a stay are very similar to the arguments determined adversely to the applicant by this Court in his previous interlocutory application.[13] The contention that his memory loss and the destruction of his vehicle would make it unfair for him to have to answer the prosecution case was specifically rejected by this Court in that earlier proceeding. In the present application, counsel again relied upon these matters, but additionally upon the unavailability of blood samples for testing by an expert of the applicant's choice, and the destruction of the other vehicle.

37 As this Court said on the previous occasion,[14] disadvantage to an accused because of the destruction of evidence can be remedied by appropriate directions to the jury. There is no reason why the destruction of the other vehicle and the blood sample cannot be remedied in that way. Further, there appears to be some evidence that the applicant was in fact given a blood sample and that he failed to utilise the opportunity to have it tested. Finally, it remains open to the applicant to show through cross-examination that the sample tested by the prosecution witness was unreliable because of degradation of the levels of phenytoin said to be caused by lack of refrigeration.[15]

38 Further in support of his application for a permanent stay, counsel for the applicant submitted that Charter provisions intended to ensure that an accused receives a fair trial,[16] provide greater protection to the accused against an unfair trial than do the common law principles applicable to a stay application. Counsel did not proffer any authority for that proposition to the trial judge, nor did he do so before us. In short, counsel advanced no reason, as distinct from mere assertion, in support of his submission that the Charter confers a right more extensive than the common law right that, so far as possible, the accused be afforded a fair trial.

39 This Court should generally not be expected to entertain arguments involving the application of the Charter on interlocutory appeals. As counsel for both parties to this application conceded, such arguments will usually involve complex questions. The construction of the provisions of the Charter often require substantial

research of international jurisprudence and resulting lengthy consideration. The raising of a Charter issue requires the notification, and the possible involvement, of additional entities (including the Attorney-General); and most often significant delay in the trial below. For these reasons, it can be expected that arguments involving the Charter will rarely be appropriate for determination on an interlocutory appeal. The fragmentation of individual trials should be avoided unless there is a compelling reason to the contrary.

40 Further, in circumstances where it is not perfectly plain that a fair trial cannot be had, assessment whether there was not in fact a fair trial - by reference to the common law, or to the Charter if and insofar as applicable principles differ - is best undertaken by reference to the trial as a whole. In this case, it was not demonstrated to be perfectly plain that a fair trial could not be had. None of the factors relied upon by the applicant, either individually or in combination, justified a permanent stay of proceedings. The trial judge was right to conclude that he should not certify that his decision to refuse to grant a permanent stay was of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

41 No error having been demonstrated in any of the trial judge's rulings or in his refusal to grant a certificate, the interests of justice do not require a grant of leave to appeal. The application should be refused.

42 I have had the advantage of reading in draft the joint reasons for judgment prepared by Ashley and Redlich JJA. I agree with those reasons, and with the disposition of this matter that their Honours propose.

43 I would add only the following. Section 295(2) of the Criminal Procedure Act 2009 (Vic) allows either party to an indictable proceeding to appeal to this Court,

with leave, against an 'interlocutory decision' made in that proceeding. The term 'interlocutory decision' is obviously one of wide import.

44 In New South Wales, s 5F of the Criminal Appeal Act 1912 (NSW) is, in my opinion, more sensibly drafted. Section 5F(2) confers upon the Attorney-General, or the Director of Public Prosecutions, a right to appeal to the Court of Criminal Appeal against 'an interlocutory judgment or order' given or made in proceedings to which the section applies. Section 5F(3A) allows the Attorney-General, or the Director of Public Prosecutions, to appeal to that Court 'against any decision or ruling on the admissibility of evidence', but only if that decision or ruling 'eliminates or substantially weakens the prosecution's case'.

45 Section 5F(3) applies to accused persons. An accused can appeal against an interlocutory judgment or order, but only if the Court of Criminal Appeal gives leave, or the trial judge certifies that the judgment or order is a proper one for determination on appeal. An accused cannot challenge, by way of interlocutory appeal, a decision or ruling on the admissibility of evidence.

46 In my view, the New South Wales approach is greatly to be preferred because it accords due weight to the need to prevent fragmentation of the criminal trial process. Moreover, the narrower formulation provides a significantly greater hurdle for those who might be minded to seek forensic advantage merely through delay. To allow those accused of indictable offences (as distinct from the Crown, which has no other recourse) to bring interlocutory appeals against evidentiary rulings of a kind which are routinely made every day provides a strong incentive to systemic abuse, and is in no way beneficial to the public interest. While it is true that such appeals can only be brought with the leave of this Court, that filter may well be more illusory, in many cases, than real.

47 In my opinion, although the Court, but not the applicant, identified a deficiency in the manner in which the Crown's case was particularised, and in the way in which the prosecutor's opening statement was formulated (a deficiency, I might say, that was easily cured), that did not warrant the applicant's having embarked upon a second excursion into this Court, even before his trial began. All that has been achieved is unwarranted and additional delay and, no doubt, a good deal of inconvenience to witnesses and others. None of the other matters that the applicant sought to raise, including the various challenges mounted to evidentiary rulings, and the spurious Charter point advanced, had any merit whatsoever. They should not responsibly have been argued.

48 I would specifically align myself with the comments made in the joint judgment regarding the unsuitability of Charter points as the basis for interlocutory appeals. That is particularly so when, as appears in this application, little or no thought has been given to whether the particular point sought to be agitated can in any way be supported.

[1] R v Wells [2010] VSCA 100 (Unreported, Ashley, Redlich and Weinberg JJA, 30 April 2010).

[5] McDonald v DPP [2010] VSCA 45) [13]-[17](Ashley JA), [21] (Redlich JA); R v Wells [2010] VSCA 100 (Unreported, Ashley, Redlich and Weinberg JJA, 30 April 2010) [16]-[19]; Stannard v Director of Public Prosecutions [2010] VSCA 165 (Unreported, Redlich and Bongiorno JJA and Hansen AJA, 23 June 2010) [27].

[7] Walton v Gardiner (1993) 177 CLR 378; Doney v The Queen (1990) 171 CLR 270.

[8] Including the allegation that the applicant was adversely affected by consumption of cannabis.

[9] See for example Beach (1994) 75 A Crim R 447.

[12] A sample was analysed at the Royal Melbourne Hospital. It seems that the applicant wishes to challenge the reliability of that analysis.

[13] R v Wells [2010] VSCA 100 (Unreported, Ashley, Redlich and Weinberg JJA, 30 April 2010).

[14] Transcript p 943; R v Wells [2010] VSCA 100 (Unreported, Ashley, Redlich and Weinberg JJA, 30 April 2010) [22].

[16] Particularly s 25(2)(h) - which counsel described as an 'equality of arms' provision.

Human Rights and Responsibilities Act 2006

Wells v The Queen

At a glance

Court

Decision date

Before

Source

Judgment (76 paragraphs)

Wells v The Queen (No 2) [2010] VSCA 294 (4 November 2010)

Parties

Legislation Cited (3)

Cases Cited (2)