NSW Court of Criminal Appeal Overturns Directed Acquittal Due to Trial Errors

The Court of Criminal Appeal quashed an acquittal and ordered a retrial due to serious errors in the original trial judge's decision-making process, including failing to apply the correct principles and considering the prosecution case at its highest.

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v [NAME] [2013] NSWCCA 285 Hearing dates: 29 October 2013 Decision date: 14 November 2013 Before: [NAME] at [1] [NAME] at [2] [NAME] at [60] Decision:

1. Quash the acquittal of the respondent.

2. Order that the respondent be retried in the District Court before a different judge. Catchwords: [NAME] appeal - directed acquittal - failure by trial judge to apply correct principles - failure to take [NAME] case at its highest - direction made before conclusion of [NAME] case - appropriate case for exercise of residual discretion to quash verdict and order new trial Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Road Rules 2008 (NSW) Cases Cited: [NAME] v O'Sullivan (1955) 92 CLR 654 R v PL [2009] NSWCCA 256; (2009) A Crim R 199 R v R (1989) 18 NSWLR 74 Category: Principal judgment Parties: [NAME]: Counsel: [redacted] [NAME] (Respondent) Solicitors: [redacted] Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-05-15 00:00:00 Before: Maiden SC DCJ File Number(s): 2011/406314

Judgment 1LATHAM J: I agree with [NAME]. 2R A [NAME] J: This is an appeal pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) against the acquittal of the respondent by a [NAME] at the direction of a judge of the District Court. 3On 13 [NAME] 2013, the respondent was arraigned and pleaded not guilty to a single count of dangerous driving causing death. A [NAME] was empanelled and a trial proceeded. But on the third day, while the [NAME] was still presenting its case, his Honour Judge Maiden SC declared, "it ends now". After giving a short judgment he directed the [NAME] to deliver a verdict of not guilty. 4Serious errors attended his Honour's decision to direct the respondent's acquittal. The acquittal must be quashed and the respondent returned to the District Court for further trial.

The [NAME] case 5At about 8.30pm on 19 August 2011, the respondent was driving a car on [ADDRESS] approaching Clarence Town (which is a little inland from the highway between [ADDRESS] and Karuah). [NAME], his girlfriend, was sitting in the front [NAME]'s seat. 6Just before leaving generally rural terrain and entering Clarence Town, the road bends to the left and then immediately crosses the Williams River Bridge. There is no street lighting in the area. The speed limit is 50 km/h. The [NAME] case was that the respondent lost control of the car when he came to the bend in the road and in the course of trying to regain control he collided with the bridge. The car went through a wooden railing and ended up in the river. Sadly, Ms [NAME] died as a result. 7In a subsequent police interview the respondent gave an account that was to the following effect. He was unfamiliar with the road. The road surface was wet from earlier rain. There was thick fog. The car's headlights were on high beam and the light was reflecting back off the fog. He could only see about two car-lengths in front. He was travelling at 60 km/h but slowed down due to the fog to 50-55 km/h. He did not see the bend in the road until he arrived at it. The car was beginning to cross to the wrong side of the road and he panicked. He pulled the steering wheel in the direction of the bend but lost control. The car slid back and forth across the road. It hit one side of the bridge and then went through the railing on the other side and plunged into the river. 8The interviewing officer, [NAME], asked the respondent how he thought the collision occurred. He replied, "I think just lack of vision. Like I said earlier on in the interview, lack of vision and the fog. Panicking." He was asked a similar question a short time later and he replied, "The fog and the conditions of the road".

The course of the trial 9The [NAME] told the [NAME] in his opening address, "if the fog was as thick as he says, that he could not see more than two car lengths in front of his vehicle, he was going much too fast for the conditions". The prosecutor told the [NAME] that there was no sign warning a driver of the bend in the road and not much warning of the bridge aside from one that indicated a load limit of 40 tonne and a width of 3 metres. Nevertheless, it was the [NAME] case that "the accused was driving too fast for the prevailing conditions and that the accused was sufficiently inadvertent, that is, not looking properly for his driving to be in a real sense dangerous". 10There were agreed facts that the respondent was the driver when the car was involved in an impact whereby the death of Ms [NAME] was occasioned. It was also agreed that neither alcohol nor drugs were a factor in the respondent's driving.

Accordingly, the sole issue for the [NAME] to determine was whether the respondent's driving was objectively dangerous. 11The [NAME] called a number of witnesses on the first day of the trial and the following morning. Most of them were civilians and police officers who responded to the incident. None of them were in a position to give any direct evidence as to the manner of the respondent's driving, although one of them, [NAME], said that the respondent told him that it was foggy and that he did not see the bridge for that reason. 12The [NAME] called [NAME] just after midday on the second day. He was attached to, indeed in charge of, the Newcastle Crash Investigation Unit. He had been a police officer for some 27 years and involved in crash investigation for about 10 years. There was no dispute about his expertise. 13Sergeant [NAME] was called out on the night of the incident and arrived at the scene at about 10.40pm. He provided the [NAME] with a description of the roadway in the vicinity of the incident and of the bridge. Photographs were used as an aid to his descriptions. 14His Honour began to question the officer when he was in the middle of explaining the nature and location of various signs that were visible for a driver proceeding in the respondent's direction of travel. The questioning occupies some three pages of transcript. His Honour asked about signs that were not present: signs that would indicate a bend in the road ahead; the presence of a single lane bridge; and that there should be no passing or overtaking on the bridge. He asked about why the absence of such signs was not mentioned in the officer's "report" (a reference to his first statement). 15The judge sent the [NAME] out for the luncheon adjournment a short time later. He then began to express his concerns to the [NAME] about the signage issue and whether the officer had been derelict in his compliance with the expert witness code of conduct by not including certain matters in his "report". He was critical of the officer for not including "all material facts relevant to the investigation and to any opinion drawn". 16The [NAME] pointed out that the signage that was present or absent was clearly depicted in the photographs the officer had taken and which had been incorporated within his statement. He reminded the judge that the nature of the signage, present and absent, had been referred to in his opening address to the [NAME]. 17The judge then suggested that the signage issue was relevant to the decision to prosecute the respondent in the first place. He expected that [NAME] would have included "comment about the signage or lack of signage there and not just to put matters material to the [NAME] case and leave out matters that [NAME] not support that case". 18The judge required the [NAME] to obtain instructions as to whether [NAME] was still to be relied upon as an expert witness where, "on the face of it" he had not complied with the expert witness code of conduct. 19Upon resumption, and still in the absence of the [NAME], the [NAME] sought to call some evidence on the voir dire. He did not indicate the nature of that evidence but it would obviously have been his intention to call [NAME] and invite him to explain the matters that were concerning his Honour. But the judge then changed tack and asked the [NAME] "what are the particulars of the manner of driving here?" 20After some further exchange, the judge indicated that "in respect of the signage I would have thought that's entirely relevant to the question of whether or not he, the accused, noticed or didn't notice the corner". The [NAME] inquired whether his Honour was returning to "the issue about the expert". The judge said that he would not call him "the expert"; he would call him "the [NAME]". The [NAME] said he wished to be heard about this but was cut off. 21The judge then moved to expressing concern about what [NAME] had put to the respondent in the interview and to the admissibility of the interview. I interpolate that the judge had not read (and never did read) the transcript of the interview. Moreover, there had been no suggestion of any objection to the interview going into evidence; the [NAME] case had not yet progressed to that point. 22The discussion then returned to the subject of the signage, present and absent. The judge referred to certain provisions of the Road Rules 2008 (NSW) and to literature, text books and Australian Standards concerning signs. He inquired "why isn't the Road Authority brought into this case?" 23The discussion came to an end with the judge adjourning the matter to the following day. He expected that the [NAME] would provide to the defence by 8am "full particulars of those matters relevant to the signage on this road, and also an investigation at least into the appropriateness of the signage. That is, each sign should be checked as to whether it is appropriate, whether it complies with the Road Rules 2008, and/or with the Australian Standard for such signage. And that's a minimum." His Honour also asked for the Newcastle City Local Area Police Commander to be present the next day. 24Day 3 of the trial commenced with the [NAME] not conceding the judge's concern about [NAME]'s compliance with the expert witness code of conduct but indicating that he would not lead expert evidence from him in any event. The judge's response was to the effect that it was too late; he had already given expert evidence; he had not complied with the code of conduct; his evidence was therefore inadmissible. 25Discussion moved to what the [NAME] case was. His Honour referred to the estimate of speed he had been told the respondent had provided in the police interview and asked what speed the [NAME] contended he should have been doing. The [NAME] then advised that [NAME] had calculated the "critical speed for the corner" as 67 km/h; thus indicating that he should not have lost control if he proceeded around the corner at his estimated speed of 50-55 km/h. 26The judge then said he had a concern about the officer's competence. In this context his Honour indicated his understanding (more a misunderstanding) of the [NAME] case was that the respondent had safely negotiated the corner but had lost control when, without warning, he was confronted by a bridge that suddenly narrowed to a single lane. The [NAME] explained once again the way he was putting the case: in short, travelling too fast when vision was limited; seeing the corner too late to safely negotiate it; losing control; and colliding with the bridge. 27Senior counsel for the respondent, [NAME], then entered the discussion with reference to some of the evidence and the history of the matter. Then the [NAME] made a concession that an additional basis for the [NAME] case he had earlier relied upon (inadvertence) would be abandoned and the case would be confined to the "too fast for the conditions" basis. He indicated that the [NAME] would be relying upon what the respondent had said in the police interview. 28There was then this exchange: [NAME]: ... Could I make it perfectly clear that the [NAME]'s complaining in this case that it is a matter, it's driving dangerously to proceed on a road when you can't see what's in front of you caused either by smoke or fog. That's the [NAME] case. HIS HONOUR: Well, if that's the [NAME] case, it ends now. [NAME]: [NAME] it please your Honour. HIS HONOUR: Because you, the [NAME] is required to particularise that driving with, causally with the accident, and that's what you haven't done. [NAME]: Well the [NAME] says if you drive at twice the speed that you can see, when you get to a corner it's inevitable that you will crash and that's what happened here. That's the [NAME] case. HIS HONOUR: Well where's the evidence of that? [NAME]: I just handed it up to your Honour. [Undoubtedly a reference to a transcript of the police interview]. HIS HONOUR: That is, matters said by the accused four months after the event-- [NAME]: Yes your Honour. HIS HONOUR: --in circumstances where he's in shock at the time-- [NAME]: No your Honour. It's four months after the event when he's there with his mother-- HIS HONOUR: No, when he's in shock at the time of the accident site and-- [NAME]: Yes your Honour-- HIS HONOUR: --taken away, on a road that he's never been. [NAME]: Yes your Honour. HIS HONOUR: And that's your case against him? [NAME]: That's the case that I'm directed to proceed with-- HIS HONOUR: Inconsistent with the measurements taken by the officer. Any application? [NAME]: Yes, we make an application that the [NAME] case be dismissed on the basis that there is just no evidence of danger in accordance with the indictment, your Honour. HIS HONOUR: Yes, thank you. FOR

JUDGMENT SEE SEPARATE TRANSCRIPT

The judge's ex tempore judgment 29As the above transcript extract reveals, the judge delivered judgment immediately without hearing anything from the [NAME]. The judgment traversed the following matters (but I will exclude reference to a number of matters that were entirely irrelevant): What is clear to the court is this, that on this night a P-plate driver drove along a road where there was fog from time to time and, as he approached a corner which, in the court's mind, should have been signposted with at least a sign saying or indicating a sharp turn to the left and a sign indicating that the two lanes on the roadway converged into one, that that warning should have been given. There was an earlier warning, perhaps for local truck drivers, which indicated three metres, but it does not appear to be a sign, that one would see in a traffic handbook given to drivers from the RMS. 30His Honour then referred to the "report" by [NAME] and its reference to compliance with the expert witness code of conduct. He asserted there were a number of "failures" on the officer's part: a failure to take photographs of the scene on the night; and making no comment about the adequacy of the signage. A third "failure" was to not make reference in "the report" to the following: [T]his particular corner is without a left-hand turn sign, and one would have thought that where traffic is not warned that two lanes become one lane in a relatively short space and on a corner not lit, not signposted, and in circumstances on this country road where a person who is unfamiliar with the road, their headlights would not be focused to the left that is where the bridge was. This was a dangerous corner and situation for any driver, let alone one who had not travelled along it and perhaps one who was not experienced. 31His Honour referred to a second "report" by the officer in which he included his critical speed estimate for the corner of 67 km/h. 32His Honour then indicated his theory of what happened, reiterating his earlier mentioned misunderstanding of the [NAME] case: The unfortunate accident occurred as, presumably, as the lights of the vehicle came upon the narrow part of the bridge and, arguably, at that point of time, the road narrowing, it required the person to react quickly. That unfortunately ended in the [back] left-hand part of the vehicle hitting what was the wooden railing and the vehicle then proceeding across to the opposite side of the roadway through the old wooden railing, the vehicle ultimately ending up in the river and the death of the [NAME]. 33His Honour indicated that if there had been a guard rail on the side of the approach to the bridge there likely would not have been injury to anyone. Having regard to what he considered to be the danger that this bridge provided, his Honour opined: [I]t could and should have been anticipated by the authority [presumably a reference to the Roads and Maritime Service] and by [NAME] to consider the question of the illumination of the accused's vehicle's headlights with what confronted him. 34After reference to an irrelevant consideration, his Honour turned to the respondent's police interview (which was the basis of the [NAME] case): The [NAME] relied upon what was seen to be admissions made by the accused in an interview with [NAME] four months after the accident. I am unaware as to why, in the circumstances of this matter, the accused was interviewed four months after the event. Obviously questions of memory, reconstruction and other matters come into play when looking at this sort of interview, but I do not understand any direct question in respect of the manner of driving on the corner or in relation to the bridge being asked in the record of interview. Clearly, if I am wrong on that I stand corrected, I have just been given the record of interview, which I have not read, however, what I do say is that this matter should not have proceeded from the outset on the particulars provided or as I understand them given by the [NAME]. This accident occurred either in or at the end of the corner, and, for those reasons, I propose to indicate to the [NAME] direct a verdict [sic]. 35Having announced his ruling and the reasons for it there was no need to say more. But the judge did say more by continuing to make criticisms of [NAME]. He referred to having been told that the officer had calculated a coefficient of friction in order to calculate the critical speed of the corner. He said: There are many cases, and there is a great amount of literature, to do with coefficients of friction and usually, in respect of expertise, the standard requires the person, if they have not tested the surface themselves to gain that coefficient, for that to be expressed expressly in the report with qualification. I do not understand such qualification being made. Again it is another serious matter that led to the events of the officer initially charging this matter. These are matters that should, in respect, that should be known to crash investigators and ordinarily are and can be checked in the literature available to all, let alone to crash investigators. I see that the [NAME] is also a mentor to other crash investigators. I draw that to his superiors' attention. 36In relation to this final disparagement of [NAME]'s competence, I note that he referred in both his first statement (which the judge had) (at [108]-[110]) and his second statement (which the judge did not have) (at [13]) to the precise manner in which he derived the coefficient of friction of a "travelled wet bitumen surface". 37Another matter to note about that last criticism of [NAME] is that the judge had been told that the calculation of the critical speed of the corner was carried out at the request of the respondent's counsel prior to the trial; that is, it had no relevance to the respondent being charged.

The appeal 38It has been mentioned that this appeal was brought pursuant to s 107 of the Crimes (Appeal and Review) Act. It provides that the Attorney-General or the Director of [NAME] appeal to this Court against an acquittal by a [NAME] at the direction of the trial judge (or an acquittal in a judge-alone trial, or in a summary trial in the Supreme or Land and Environment Courts). The appeal must be "on any ground that involves a question of law alone": s 107(2). 39A question was raised at the hearing as to the identification of the "question of law alone". With leave, the [NAME] filed after the hearing an amended notice of appeal with the ground identified as follows: In determining whether there was a case to answer, his Honour erred by failing to deploy the correct legal test in: (i) Making the determination to direct an acquittal prior to the completion of the [NAME] case (ii) Failing to take the evidence in the [NAME] case at its highest (iii) Making a determination that the evidence was incapable of supporting a verdict of guilty 40With his customary frankness and candour, [NAME], counsel for the respondent, accepted that an assertion that the trial judge had failed to apply correct principles in directing a verdict of acquittal constituted a question of law alone. That concession should be accepted. It was also conceded, as it had to be, that the trial judge had erred in this respect. 41A convenient and concise summary of the principles that apply to the determination of a question as to whether there is a case to answer (or that there is no prima facie case) was provided in [NAME]'s written submissions: (a) A judge [NAME] direct a verdict of acquittal only if there is a defect in the evidence in the [NAME] case such that, taken at its highest, it will not sustain a verdict of guilty; if there is evidence, though tenuous or inherently weak or vague, that is capable of supporting a verdict of guilty, it must be left to the [NAME]: Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207. (b) In a case based on circumstantial evidence, a judge cannot direct a verdict of acquittal if there is evidence in support of the [NAME] case even though a reasonable hypothesis consistent with innocence can be formulated: R v [NAME] (1991) 57 A Crim R 39. (c) There is no power to direct an acquittal on the basis that any resultant conviction would be unreasonable or unsupported by the evidence: R v R (1989) 18 NSWLR 74; [NAME] v The Queen.

Errors by the trial judge 42The judge made no reference to any of these well known and long-established principles. And he certainly did not apply them. For that reason, the appeal should be allowed unless there are discretionary factors militating against that course. 43Whilst the Court's jurisdiction to intervene is constrained by the requirement for there to have been an error of law, not an error of fact, or mixed errors of law and fact, it is worth noting some of the factual errors as well. 44The first misapplication of principles was to direct a verdict of guilty before the end of the [NAME] case. As counsel for the respondent observed, statements of principle regarding the power of a trial judge to determine whether there is a case to answer are universally expressed in terms that it arises only at the close of the [NAME] case: see, for example, [NAME] v O'Sullivan (1955) 92 CLR 654 at 658; R v R (1989) 18 NSWLR 74 at 76-77. It is impossible to take the [NAME] case at its highest when the case is still being presented and the trial judge is not properly acquainted with the detail of the evidence yet to come. 45Even with the partially presented [NAME] case, the judge did not assess it in its most favourable light for the [NAME]. Indeed, he continually failed to come to grips with what the case was, despite repeated explanations by the [NAME]. 46The [NAME] relied heavily upon the respondent's interview with the police. The judge had been provided with a transcript but he did not pause to read it. Moreover, what he had been told were some of the admissions made by the respondent he sought to downplay in their significance by reference to the four month delay until the interview took place. His Honour's reference to "questions of memory, reconstruction and other matters come into play when looking at this sort of interview" is the antithesis of taking the [NAME] case at its highest; and the observations were not based upon evidence in any event. 47The judge appears to have assessed the case in a light most favourable to the respondent. In fact, he developed his own theory of the case that virtually exonerated the respondent; a theory that was hypothetical and not based upon the evidence (presented and yet to be presented). 48The judge appears to have become distracted by the signage issue and this fed into his unwarranted and unfair criticism of [NAME]. It was unwarranted and unfair because (a) his Honour had not read all of the statements made by the officer; (b) his Honour misunderstood parts of what he had read; and (c) there was a denial of fairness in not giving the officer an opportunity to explain. The proposal of the [NAME] to call evidence on the voir dire for that purpose was seemingly ignored.

Discretion 49Notwithstanding that the [NAME] has made good its contention that there was an error of law alone there remains a question as to whether the Court should intervene. Section 107 includes: (5) [ADDRESS] of Criminal Appeal [NAME] affirm or quash the acquittal appealed against. (6) If the acquittal is quashed, the Court of Criminal Appeal [NAME] order a new trial in such manner as the Court thinks fit. ... 50In R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199, Spigelman CJ discussed the discretion thereby reposed in the Court. He concluded (at [90]) that the Court should not order a new trial if satisfied that a conviction would be overturned as unreasonable, or on any other basis which would not warrant a retrial being ordered on a successful conviction appeal. 51In the present case, [NAME] focused his submissions on this question. It was his contention that "the whole of the evidence available to the [NAME] cannot establish beyond reasonable doubt that the respondent was driving the vehicle in a manner dangerous to another person immediately before he lost control". In support of this contention he identified the following matters: The speed at which the respondent was driving was not inherently dangerous and he said he had reduced his speed because of the conditions. The respondent's estimate of how far he could see ahead (two car lengths) could not be reliable. It was provided four months after the event and his response was preceded with some uncertainty. The fact that the respondent did not see the upcoming left-hand curve earlier did not of itself demonstrate that his driving was dangerous. There was no viable circumstantial case arising from the objective circumstances of the incident independent of the respondent's account to the police. 52It was submitted that the central issue in the case did not depend upon the credibility of witnesses.

Accordingly, it was submitted that the Court could, and should, conclude that the evidence at any new trial would leave a reasonable doubt as to the respondent's guilt.

Determination 53I am satisfied that the evidence available to the [NAME], together with the inferences that could be drawn, amount to a viable case. 54I accept that the speed at which the respondent was driving would not in normal conditions be regarded as dangerous but there is a very real question of it being so in circumstances where, on any view, his forward vision was substantially impaired. 55No doubt some advantage will be sought before the [NAME] about the absence of a sign warning of a forthcoming bend in the road. But against that, the respondent's unfamiliarity with the road and his restricted forward vision might well be regarded as making all the more important that he slowed the car sufficiently to enable a safe response to anything unexpected. 56There was an issue between the parties in their submissions about the availability to the [NAME] of a circumstantial case independent of the respondent's account in his police interview. That is not an issue that needs to be determined; my conclusion concerning the viability of the [NAME] case does not depend upon it. 57The [NAME] read two affidavits by [NAME] that were accompanied by extensive annexures. It is unnecessary to explore the detail; I simply note that there is some material within those annexures that might serve to allay the types of concerns about the signage issue that seemed to weigh so heavily with Maiden DCJ. 58A final matter is that there was discussion at the hearing of the appeal about the appropriateness of Maiden DCJ presiding at any retrial. The [NAME] sought an order that the matter be remitted to another judge. [NAME] did not oppose that course. I have earlier referred to some very strong views expressed by his Honour, including criticism of the police officer in charge of the case that I have characterised as unwarranted and unfair. In my view, for the sake of the appearance of justice being done, this Court should accede to the [NAME]'s request.

Orders 59I propose the following orders: 1. Quash the acquittal of the respondent. 2. Order that the respondent be retried in the District Court before a different judge. 60BARR AJ: I agree with [NAME].

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Amendments 21 March 2014 - Party name amended Amended paragraphs: Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that [NAME] 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 [NAME] be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 March 2014