Hartley (a pseudonym) v The Queen [2020] VSCA 62 (23 March 2020)

Last Updated: 24 March 2020

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0239

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of culpable driving causing death following trial – Two heads of culpability alleged: gross negligence based principally on excessive driving speed (plus intoxication); and intoxication rendering driver incapable of having proper control of vehicle – Trial counsel not briefed with, and unaware of, expert report commissioned by trial solicitor challenging Crown case on excessive speed of driving – Whether substantial miscarriage of justice – Expert gave viva voce evidence before Court of Appeal – Evidence important to defence case – No rational forensic reason not to call expert – Alternative basis for conviction unaffected by report not inevitable – Appeal allowed – Retrial directed – Criminal Procedure Act 2009, s 276(1)(c); Crimes Act 1958, ss 318(1) and (2)(b) and (c).

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Appearances : Counsel Solicitors For the Applicant Mr L Howson Tony Danos Lawyers For the Respondent Mr C Boyce QC Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

1 I agree with Croucher AJA.

HARGRAVE JA:

2 I agree with Croucher AJA.

CROUCHER AJA:

Overview

3 Despite the extensive safeguards in place for criminal trials, every now and then, things still can go fundamentally wrong in a most unexpected way. In some of these cases, the consequence is a substantial miscarriage of justice, which can be remedied only by setting aside the conviction and directing a new trial. That is what happened in this case.

4 ‘Phillip Hartley’[2] was the driver of a car that struck and killed seventeen-year-old ‘AB’. In September 2017, Mr Hartley was convicted after a trial in the County Court of culpable driving causing the death of AB.[3] He was sentenced to ten years’ imprisonment with a non-parole period of seven years.

5 As a result of a series of unfortunate events, it was not until after the conviction and sentence that Mr Hartley’s trial counsel became aware of the existence of an accident reconstruction report that had been commissioned by his instructing solicitor’s firm prior to the trial. Counsel was neither provided with the report in his brief nor told of its existence. The report, authored by Dr Shane Richardson, challenged a major plank of the Crown case against Mr Hartley on culpable driving causing death — namely, that he was driving at 96 kph (in a 60 kph zone) when he lost control of his car after swerving to avoid AB as he crossed the street. Moreover, the report was capable of supporting the defence case on this point — which was to the effect that his true speed was about 60 to 65 kph.

6 In my view, it is plain, from the contents of the report and from hearing viva voce evidence from him on this application, that evidence from Dr Richardson at trial could have assisted Mr Hartley in a material way in defending the case, and would have been led had trial counsel been apprised of the report. There could be no sound forensic reason for taking any other course at trial. Moreover, I am satisfied that Mr Hartley has been deprived of a chance of acquittal that was fairly open to him as a result of the fact that trial counsel was not provided with the report, and that there has been a substantial miscarriage of justice in consequence.

7 That, in a nutshell, is why, at the hearing of this matter, I joined in the making of orders granting the application for leave to appeal, allowing the appeal, setting aside the conviction and sentence for culpable driving causing death, and directing that there be a new trial.[4]

8 My more detailed reasons for joining in those orders follow.

Background

The accident and subsequent events

9 Just after midnight on the night in question, a Holden Commodore sedan driven by Mr Hartley struck AB. According to the Crown’s accident reconstruction expert Dr Janelle Mehegan, Mr Hartley lost control of his car as he rounded a left-hand bend and swerved to the left to avoid AB, who was crossing the road on foot from right to left. Unfortunately, however, as the car spun in an anticlockwise direction, its rear end collided with AB, who was thrown quite a distance. In particular, it was said that he came to rest nearly 23 metres from the point of impact. The car stopped only after it also hit a road sign and then struck a tree nearby.

10 In the course of seeking assistance (via a triple-zero call) for the then seriously injured pedestrian, Mr Hartley, when asked by the operator, said that, as he rounded the bend, the pedestrian was in ‘the middle’ of the road. He said that he tried to ‘dodge’ him, but instead hit him. His car then went off the road and into a tree. Mr Hartley continued to assist AB as instructed by the operator until the ambulance officers arrived. The transcript of the call makes for harrowing reading.

11 Sadly, the circumstances worsened, because AB’s brother ‘CD’ attended the scene and saw his loved one in a parlous state as a result of the accident. Worse still, AB ultimately died as a result of his injuries, at about 2:25 a.m.

12 A police officer who attended the scene soon after the accident detected alcohol on Mr Hartley’s breath. He administered a preliminary breath test (‘PBT’), which produced a blood alcohol concentration (‘BAC’) reading of 0.086. Mr Hartley was arrested and taken to the local police station.

13 Mr Hartley gave an account of the accident, and of his alcohol consumption, to police on the way to the station and in two formal taped interviews once there. He said that he was travelling at about 60 kph, perhaps 65 kph, along the street in question. When he rounded the left-hand bend, he saw someone on the road. As he went to swerve to miss him, he lost control and ended up against a tree.

14 As for his alcohol consumption, Mr Hartley said he had drunk a schooner of beer at a hotel; then ‘two or three’ stubbies of beer at a pool hall; and finally two more beers at the home of his friend ‘EF’. The first three or four beers were full-strength, whereas the last two were mid-strength. He had his first drink at about 5:45 pm the previous evening, and his last about five minutes before the accident.

15 During the first recorded interview at the police station, police conducted a breathalyser test, which produced a BAC reading of 0.101. Mr Hartley said he did not think it would be anywhere near that high, ‘otherwise [he] wouldn’t have got behind the wheel of the car’.

16 Police charged Mr Hartley with culpable driving causing death. As is commonplace nowadays, he was also charged with the alternative offence of dangerous driving causing death.[5]

17 Subsequently, he was committed for trial in the County Court, where his trial was conducted before Judge Montgomery and a jury of twelve.

Crown case at trial

18 The Crown case on culpability was put on two bases, either of which would suffice for liability.[6] First, reliance was placed on ‘gross negligence’,[7] based principally on Mr Hartley’s alleged excessive speed in the circumstances (but also on alcohol consumption). Secondly, it was alleged that, given his BAC reading, he drove ‘under the influence of alcohol to such an extent as to be incapable of having proper control of the [car]’.[8]

19 As I indicated earlier, Dr Mehegan gave evidence to the effect that, in her view, Mr Hartley’s car was travelling at about 96 kph when it commenced to yaw. (A yaw is a scuffmark made on a surface by a rotating tyre which is slipping more or less parallel to its axis.) Dr Mehegan also opined that, based on the ‘throw distance’ of AB’s body as calculated, the car was travelling at about 71 kph when it impacted with him. Further, in her view, the car commenced to yaw as a result of an excessive left steering input, which is consistent with facing a threat from the right, such as a pedestrian moving from the right to the left, as occurred in this case.

20 There was some support in the Crown case for Mr Hartley’s account of a much lower speed, albeit not of an expert kind. ‘GH’ was Mr Hartley’s housemate, and had been with him for part of the evening leading up to the accident. Also, he was following Mr Hartley in another car at the time of the accident. GH said that he left EF’s house at the same time as Mr Hartley and followed him up the street. GH believed his car was travelling at 50 or 60 kph, but his speed was rapidly declining as he went up the hill because of a problem with his car. He believed that Mr Hartley’s car was travelling at about ten to 15 kph faster than his. (This might suggest that Mr Hartley’s car was travelling at no more than 60 to 75 kph at that point.) GH lost sight of Mr Hartley’s car as it went around the bend. As he rounded the bend, GH saw something bouncing across the road, which, he came to realise later, was AB.

21 Dr Angela Sungalia, a forensic physician, gave evidence that, in her opinion, given the usual ranges for bodily excretion and absorption rates of alcohol over time, and assuming his body weight to be somewhere between 70 and 90 kilograms, it is highly likely that Mr Hartley consumed more alcohol than he remembered in order to end up with a BAC reading of 0.101. Her rough calculation was that he must have consumed three standard drinks more. Dr Sungalia also gave evidence that studies reveal that higher blood alcohol concentrations can impair reaction time, tracking ability, attention span, divided attention, vision and perception, with some of these skills being more impaired by alcohol than others.

22 There was evidence from several other witnesses in the Crown case which, for the purposes of this application, it is unnecessary to detail.

Defence case at trial

23 Mr Hartley did not give or call any evidence at trial.

24 As I read his counsel’s address, Mr Hartley’s defence at trial appeared to be threefold. First, counsel disputed the gross negligence limb of culpable driving. This, he sought to do, principally, by challenging Dr Mehegan’s evidence that Mr Hartley was driving at 96 kph at the commencement of the yaw. Apart from criticisms of aspects of her science, counsel relied mostly on Mr Hartley’s accounts to police and GH’s evidence concerning speed. He also relied on GH’s evidence about where AB was placed, which, in his submission, undermined the assumptions underpinning Dr Mehegan’s opinion regarding the throw distance.

25 Secondly, counsel also put in issue the alternative head of culpability based on intoxication to the point of being incapable of having proper control of the car. On this issue, counsel was critical of the evidence of Dr Sungalia in several ways that need not be detailed here.

26 Thirdly, counsel put causation in issue. In his submission, it was unclear as to ‘how the accident played out’. He asked, rhetorically, how did AB come to be in the path of the oncoming car?

27 Counsel also submitted to the jury that they should not be satisfied of guilt of the alternative offence of dangerous driving causing death — again, because either or both of dangerousness and causation had not been established beyond reasonable doubt.

Verdict, plea and sentence

28 On 19 September 2017, the jury returned a verdict of guilty of culpable driving causing death. On 30 October 2017, the judge heard a plea in mitigation. The next day, his Honour imposed a sentence of ten years’ imprisonment with a non-parole period of seven years.[9]

Background to the application in this Court

Ground of appeal

29 Mr Hartley relied on a single ground of appeal, which reads in this way:

By reason of trial counsel’s ignorance of the Report on Collision dated 29 August 2017 by Dr Shane Richardson there has been a substantial miscarriage of justice.

30 It is necessary to summarise the circumstances giving rise to that ground of appeal, including the accounts of those who provided affidavit or other material on this application, before turning to the viva voce evidence of Dr Richardson in this Court, the submissions of the parties and my analysis and conclusions.

Dr Richardson’s affidavit and report

31 It is convenient to begin with the affidavit and report of Dr Richardson.

32 In his affidavit in this Court (sworn on 27 August 2018), Dr Richardson deposed that, on 4 August 2017 (which was about six weeks prior to the commencement of the trial), Mr Hartley’s trial solicitor’s firm engaged Dr Richardson to provide a report in this matter. On 14 August 2017, the report was completed and a link to it was emailed to the solicitor’s firm. Dr Richardson received no further contact in relation to this matter until he received an email, on 7 June 2018 (nearly nine months after the trial), from Mr Hartley’s (new) appeal solicitor.

33 In his report, Dr Richardson disagreed in material respects with Dr Mehegan’s methods and conclusions. For example, he was critical of her for inflating her ‘throw calculation’ from 58 kph to 71 kph without any factual or scientific basis. In contrast, Dr Richardson’s analysis yielded a likely range of 46 kph to 68 kph for ‘a wrap trajectory’ and 43 kph to 66 kph for ‘a forward projection’. As for Dr Mehegan’s opinion that the speed of Mr Hartley’s car at the commencement of the yaw was 96 kph, in substance, Dr Richardson’s opinion was that, although 96 kph was at the upper limits of possibility, the minimum provable speed was 55 kph. By this, I understood him to mean that there was a reasonable possibility that Mr Hartley’s speed was only 55 kph at the relevant time.

Mr Hartley’s trial counsel

34 I turn next to Mr Hartley’s trial counsel.

35 In his affidavit (affirmed on 2 October 2018), trial counsel deposed that, on 7 or 8 September 2017, he was briefed through his clerk to appear for Mr Hartley on Tuesday 12 September 2017 in the County Court. The brief was not with his clerk but instead was with previous counsel, who was then in a trial away from Melbourne. Trial counsel then made arrangements to collect the brief from a family member of previous counsel at her home in Melbourne on Saturday 9 September 2017. After the brief was collected, trial counsel spoke to Mr Hartley by telephone and then met him at court on Tuesday 12 September 2017. He tried to speak to his instructing solicitor as well, but could not recall whether he was successful. During the course of the trial, counsel had an instructor only for the jury empanelment.

36 There was no defence expert witness report on the brief. At no time was trial counsel told by his instructor or his client that there had been an expert opinion or report sought or obtained by the defence.

37 Following the trial and sentence, Mr Hartley instructed trial counsel that he wished to appeal conviction and sentence. Trial counsel requested the trial solicitor, through the latter’s assistant, that the necessary materials be obtained. His messages to the firm when following up that request went unanswered. It was not until 2018 that he learned that the firm had closed in the interim.

38 In the course of discussing the case with Mr Hartley’s new appeal solicitor, trial counsel learned that, at the time of the trial, there had been in existence a report by Dr Richardson concerning the ‘pre-skid’ (i.e. pre-yaw) speed of the vehicle. In his view, this opinion would have been of high significance in the trial as it contradicted Dr Mehegan’s opinion on the same topic to a great extent, and the Crown case was that the gross negligence was constituted by a combination of speed and alcohol.

Mr Hartley’s trial solicitor

39 The Registry of the Court forwarded to Mr Hartley’s trial solicitor the written cases of the parties and the affidavits of trial counsel and Dr Richardson, and asked whether he wished to file any affidavit material or make any submission concerning the matters raised. On 3 February 2020, the trial solicitor advised that he did not wish to make any submission.

Mr Hartley’s previous counsel

40 In her affidavit (affirmed on 3 March 2020), previous counsel for Mr Hartley said that she was briefed for the committal hearing on 7 March 2017. She advised the trial solicitor that an expert should be engaged to assess the conclusions reached by the Crown’s expert. Dr Richardson’s report was emailed to her at some point after 29 August 2017.

41 Previous counsel never held the trial brief, but she did retain the hand-up brief from the committal hearing. She had discussions with the trial prosecutor prior to the commencement of the County Court list, which included the findings of Dr Richardson. She took instructions about a possible settlement. On 6 September 2017, she advised the trial solicitor about an in-principle resolution but also that she was unavailable to appear and that new counsel would have to come into the matter.

42 Previous counsel was not aware that trial counsel was given instructions to run a trial. She organised for trial counsel to collect the hand-up brief from her home. She was not aware that the trial solicitor failed to provide trial counsel with the report of Dr Richardson.

Crown trial solicitor

43 I turn now to the Crown solicitor handling the matter at trial.

44 In his affidavit (sworn 27 February 2020), the Crown solicitor deposed that, on 6 September 2017, he scanned Dr Richardson’s report and sent it to the informant, the ‘file solicitor’ and Dr Mehegan. Later that day, he sent an email to the defence solicitor asking for a copy of the report, as his scanned copy was of poor quality. Soon afterwards, the Crown solicitor received a copy of the report by email from the defence solicitor’s assistant.

45 The Crown solicitor understood that there were settlement discussions afoot based on consideration of the competing expert reports. He believed that Mr Hartley’s previous counsel was still counsel for the defence at this stage.

46 On 8 September 2017, the Crown solicitor became aware that new trial counsel would replace previous counsel, as the latter was unavailable for the trial.

47 On the evening of 11 September 2017, trial counsel sent a defence response to the Crown solicitor.

48 The Crown solicitor does not recall any specific conversations about Dr Richardson’s report after the change of counsel.

Crown Prosecutor at trial

49 I turn now to the final affidavit, that of the Crown Prosecutor at trial.

50 In his affidavit (sworn 27 February 2020), the Crown Prosecutor confirmed that he was aware of the existence of Dr Richardson’s report prior to the trial. He also believes that he had discussions with previous defence counsel concerning Mr Hartley’s speed which, presumably, involved considering the opinions of Dr Mehegan and Dr Richardson.

51 While the Crown Prosecutor has little recollection of the trial itself, he recalls no discussion with trial counsel as to the existence or contents of the report by Dr Richardson.

52 The Crown Prosecutor said, however, that he does not recall being surprised when Dr Richardson was not called to give evidence. He suggested that this may have been as a result of his earlier discussions with previous counsel concerning ‘the convergence of the speed range opined by Dr Richardson and Dr Mehegan’.

Parties’ submissions in this Court

Mr Hartley’s revised written case

53 In his revised written case,[10] counsel for Mr Hartley in this Court (who did not appear at trial) submitted that the adversarial process broke down in this case. Further, the focus of the inquiry, in his submission, should be on whether the process failed so as to result in a miscarriage of justice rather than upon why the process failed.[11]

54 In counsel’s submission, it is plain that trial counsel’s ignorance of the report resulted in a substantial miscarriage of justice. The report went to a matter critical to the case against Mr Hartley on gross negligence. If trial counsel had been in possession of the report, a failure to cross-examine Dr Mehegan on the issues the report identified, or a failure to call Dr Richardson to give evidence, would have amounted to incompetence.

55 Further, while, consistently with authority,[12] the jury were directed that they must be unanimous on a head of culpability in order to return a guilty verdict, it remains unknown which head in fact founded the verdict. Thus, since it is also clear that a verdict of guilty was not inevitable on the alternative head of culpability, the Court must act on the basis that the gross negligence head may well have founded the verdict.

The Director’s written ‘response’

56 In his written ‘response’,[13] senior counsel for the Director in this Court (who did not appear at trial) sought to classify the case as one relying on either ‘new evidence’ or ‘fresh evidence’. It was submitted that, because it had not been established (on the affidavit material filed to that point) that the report could not have been discovered at trial with reasonable diligence, it must be regarded not as fresh evidence but as new evidence. In that case, the conviction would only be set aside, the submission continued, if the new material showed Mr Hartley to be innocent, or raised such a doubt about his guilt in the mind of this Court that the verdict should not be allowed to stand.[14] And yet the new evidence could not go that far.

57 Alternatively, it was submitted that, if the case were regarded as one of ‘incompetence’, the same result should follow. This was because, it was submitted, there were very good reasons why defence counsel would not have wanted to call Dr Richardson at all, including the fact that his opinion allowed for the possibility that Mr Hartley was travelling at 96 kph at the critical time.

58 It was also submitted that the evidence of intoxication was such that, even if Dr Richardson’s opinion had been before the jury, it still would have been reasonably open to the jury to have been persuaded to the required standard of the Crown’s alternative case on culpability.

The Director’s submissions at the hearing

59 Quite properly, after the further affidavit material set out earlier had been received following the drafting of the response to the written case, the Director’s approach to this matter altered somewhat. In particular, at the outset of the hearing, senior counsel indicated that it was expressly accepted by the Director that Mr Hartley’s trial counsel did not have Dr Richardson’s report at the time of the trial.

60 When asked, in those circumstances, why the Court should not conclude that there has been a substantial miscarriage of justice, senior counsel nevertheless raised two main points. First, he submitted that there may have been a forensic decision by someone other than trial counsel — namely, previous counsel — to refrain from using the report, which, as I understood his submission, would have the effect of denying the conclusion that there was a substantial miscarriage of justice. Secondly, in his submission, parts of Dr Richardson’s opinion may have been inadmissible.

61 Senior counsel then indicated that he wished to cross-examine Dr Richardson briefly before taking his submissions any further. The Court allowed that course.

Dr Richardson’s viva voce evidence

62 In his cross-examination of Dr Richardson, the two main areas on which senior counsel for the Director focused were as follows.

63 First, senior counsel had Dr Richardson concede that an important difference between his opinion and Dr Mehegan’s concerns the point at which it can be demonstrably proven that the car was in a critical speed yaw, which in turn is affected by the visible tyre markings on the road. Further, Dr Richardson accepted that, unlike Dr Mehegan, he had not gone to the scene of the accident to observe those tyre markings.

64 Nevertheless, Dr Richardson disputed that it was accurate to describe as a yaw a particular point on the road markings which Dr Mehegan had identified as the commencement point of the yaw. Instead, in his view, the tyre had rotated too far to be applying, reliably, the criteria for yaw calculations as applied by Dr Mehegan.

65 The second concession made by Dr Richardson was that part of the critique in his report of Dr Mehegan’s opinion did not take account of the fact that the car hit a sign pole and a tree before coming to a stop.

66 That said, Dr Richardson disagreed with the suggestion that those concessions rendered his opinion ‘virtually useless’. On the contrary, in his opinion, given its structure, the sign pole would have had only a minor impact on velocity. Secondly, the damage to the car indicates that it struck at a relatively low speed, not at the 50 kph or more required for the maths suggested in Dr Mehegan’s analysis to work.

The Director’s further submissions and the course adopted

67 Senior counsel for the Director then submitted that, given Dr Richardson’s concessions (such as they might have been), his opinion lacked sufficient weight, especially when his opinion also permitted a speed of 96 kph at the top end of his range, to do any damage to the Crown case. Secondly, it was submitted, it could be seen how previous counsel could have detected those weaknesses by examining the report and, as a result, might have formed a rational forensic judgment not to call Dr Richardson in those circumstances.

The Court’s indication

68 After further discussion of the foregoing points, in response to a query from the Court, senior counsel reiterated the Director’s concession that Mr Hartley’s trial counsel did not have access to Dr Richardson’s report. He then indicated that trial counsel was not required for cross-examination.

69 The parties were also asked whether it would assist if the Court expressed some preliminary views about the importance of Dr Richardson’s evidence and whether or not any decision by previous counsel not to call him could have been a rational forensic decision. As I understood him, senior counsel for the Director accepted that that would assist. Counsel for Mr Hartley took no objection to this course. The Court then retired briefly to consider the matter.

70 Upon the resumption, the Court indicated that its current view was that Dr Richardson’s evidence was of great importance to Mr Hartley’s trial, that it could not be considered a rational forensic decision by previous counsel to decline to call Dr Richardson at that trial, and that, in those circumstances, the Court would contemplate making orders setting aside the conviction and directing a retrial. When asked whether he wished to be heard further, senior counsel for the Director indicated that, while he maintained his submissions, he did not press the application to cross-examine previous counsel and he had nothing further to say. Counsel for the applicant made no submission against that course.

Discussion

71 In my view, and as I understood senior counsel for the Director to accept by the time of the oral hearing, this was not a case to be resolved by reference to the principles concerning ‘new’ evidence. This is because, while the report was obviously capable of being discovered with reasonable diligence by those who knew of its existence, the person tasked with running the trial — namely, trial counsel — had no reason to believe that any such report existed. Nor was it his task to go scratching around to see what he might find, whether via the solicitor or previous counsel or his client. He would be entitled to expect that any such report would be in his brief or, at the very least, that, if anything like that existed, he would be alerted to it by his instructing solicitor. But, for whatever reason, neither of those things occurred.

72 Nor is it any answer to suggest (and it was not suggested) that Mr Hartley himself might have alerted trial counsel to the report. While there may be cases in which an applicant’s knowledge, before or at trial, of a report or a statement or a potential witness (on which he or she seeks to rely later) is a relevant consideration, that is not this case. For there was no evidence that Mr Hartley was aware of the report or that, if he were, he would have the least idea about whether it was something to which he should be alerting trial counsel. The reality of large swathes of criminal trial practice at the Bar is that, as seems to have happened in this case, counsel is often briefed late, and then does his or her best hurriedly to digest the brief and take instructions from the accused about factual matters, including the alleged incident or incidents. Thereafter, apart from issues such as whether the accused might give evidence or not, questions concerning the running of the trial — such as the calling of an expert witness or the like — are usually left to the judgment of counsel, without any input from the accused. There is no reason to think that this case was conducted any differently.

73 Moreover, as trial counsel explained in his affidavit, the only point at which he had an instructor at trial was during jury empanelment. Regrettably, this is commonplace nowadays, as legal aid funding usually does not extend to having an instructor throughout the trial. This is particularly unfortunate in the present case, as there might have been a greater chance of trial counsel learning of the existence of report had he had an instructor assisting him throughout the trial in the more conventional and appropriate way.

74 In any event, instead of new evidence principles, it might be said that the unfortunate turn of events that unfolded in this case is more aptly addressed by reference to the principles of the kind applicable in fresh evidence cases[15] or ‘incompetence’ cases.[16] There are helpful parallels between those cases and the present, but, strictly speaking, this case fits neither of those categories perfectly. While it could not be held against trial counsel (or Mr Hartley) that the evidence existed and was in the possession of his solicitor, and while trial counsel’s innocent ignorance of the report might suggest the evidence should be treated as if it were ‘fresh’, it also seems wrong to label it in that way (perhaps if for no other reason than the fact that it was discoverable by Mr Hartley’s trial solicitor). Similarly, while the ‘incompetence’ ground tends to incorporate ideas of rational or irrational forensic judgment (which was an issue raised by the Director here), the allegation of incompetence is usually directed at trial counsel. But it cannot sensibly be said that trial counsel was incompetent for failing to find out about the report. If there be any incompetence in this case, it must be sheeted home to the trial solicitor for failing to ensure that trial counsel was provided with the report.

75 Instead, in the end, I think that the better way to approach the matter is to ask, by reference to the relevant statutory text in s 276(1)(c) of the CPA, whether Mr Hartley ‘[has] satisfie[d] the court that ... for any other reason there has been a substantial miscarriage of justice’.[17] In my view, the emphasised words, particularly when read with the requirement of ‘a substantial miscarriage of justice’, are capable of catching what went wrong here.

76 They are also capable of incorporating the types of safeguard implicit in the Director’s submissions concerning both the weight of the proposed evidence and whether previous counsel might have formed a rational forensic judgment not to call Dr Richardson, as well as the concession that trial counsel had no knowledge of or access to the report. Safeguards of some description are, of course, necessary to prevent the Court from impermissibly allowing an appeal that involves some unfortunate happening that falls short of a substantial miscarriage of justice.

77 But when, as here, a solicitor’s failure to apprise trial counsel of a report which, on any rational forensic view, would have led to counsel calling its author to give evidence at trial and thereby assist materially in his client’s defence against a major plank of the Crown case, it can be said, conclusively I think, that his client has been deprived, wrongly, of a chance of acquittal that was fairly open to him. This, in turn, is the very definition of a substantial miscarriage of justice necessitating the setting aside of the conviction.

78 This construction is also consistent with the way in which the High Court in Baini v The Queen[18] discussed the contours of what might amount to a substantial miscarriage of justice for the purposes of s 276, as well as the way in which this Court has understood that aspect of Baini. Thus, in Bass (a pseudonym) v The Queen,[19] when considering s 276 and a ground of alleged ‘flagrant incompetence’ of counsel, in their joint judgment, Maxwell P, Weinberg and Santamaria JJA said this:[20]

[123] In Baini, the High Court analysed the effect of s 276. By majority, the Court held that on its proper construction, this Court, when applying that section, could only be satisfied that an error of the kind that had occurred in that case (a wrongful refusal to sever certain counts from the indictment) did not amount to a substantial miscarriage of justice if it concluded from its review of the record that conviction was inevitable. [124] In Andelman v The Queen, this Court identified some of the salient features in what the majority had said in Baini. This Court said:

Section 276 is not to be interpreted solely by reference to the interpretation given to the common form criminal appeal proviso in Weiss v The Queen . Comparing ‘a statute with its legislative predecessor ... is only a useful exercise if doing so illuminates the actual text of the new provision’.

. Comparing ‘a statute with its legislative predecessor ... is only a useful exercise if doing so illuminates the actual text of the new provision’. There is no ‘single universally applicable’ definition of a ‘substantial miscarriage of justice’. That is because the possible kinds of miscarriage of justice dealt with by s 276(1) are ‘too numerous and too different to permit prescription of a singular test’ .

. With respect to ss 276(1)(b) and (c) (with which this appeal is concerned), the types of substantial miscarriage of justice include cases where ‘there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial’.

Those paragraphs also cover cases where ‘there has been a serious departure from the prescribed processes for trial’.

A ‘substantial miscarriage of justice’ may occur where there has been a ‘departure from process’ even if the ‘verdict was open or it is not possible to conclude whether the verdict was open’.

The question whether there has been a ‘substantial miscarriage of justice’ ‘may be affected by the strength of the prosecution case’. In such cases, however, the Court of Appeal must be aware of the ‘natural limitations that attend the appellate task’.

A finding that the conviction was ‘inevitable’ is merely ‘relevant’ to the Court’s determination of whether there has been a substantial miscarriage of justice. It does not conclude the issue.

If it is submitted that the verdict was inevitable, the appellant need show ‘no more than that, had there been no error, the jury may have entertained a doubt’.

In assessing ‘inevitability’, the Court of Appeal must ‘decide that question on the written record of the trial’.

In cases such as Baini where evidence has been wrongly admitted or excluded, the Court cannot determine that there has been no substantial miscarriage of justice ‘unless it determines that it was not open to the jury to entertain a doubt as to guilt. Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made’.

This reading of the majority’s reasons in Baini demonstrates that s 276 is to be applied on a case-by-case basis, having regard to the particular nature of the error made in the trial. Further, whereas the strength of the Crown case may well be a relevant factor, it is not necessarily determinative. ... [126] The critical question, however, is whether there was, relevantly, a substantial miscarriage of justice. Put another way, was the appellant deprived of a chance that was fairly open to him of acquittal?

79 As I see it, this construction of s 276(1)(c) is also consistent with the way in which appellate courts have approached the construction of the previous common form criminal appeal provisions, which, while different from s 276, also have many similarities. As Winneke P said in R v AHK[21] when considering the principles concerning appeals based on fresh evidence under s 568 of the Crimes Act and some of the different ways in which those principles have been expressed:

However, at the end of the day, it should not be forgotten that the expressions of judicial opinion to which I have referred are practical guidelines which do not detract from the force of the fundamental principle that an appellate court must allow an appeal if a miscarriage of justice is shown to have occurred. An appellate court will always receive “fresh evidence” if it can be clearly shown that the failure to receive it might have the result that an unjust conviction is permitted to stand.

80 Turning back to the present case, I was persuaded that, had Dr Richardson’s evidence been given at trial, Mr Hartley could well have been acquitted. While senior counsel for the Director was right to point to the concessions made in cross-examination as potentially undermining the worth of his evidence, it struck me that Dr Richardson responded with arguably compelling answers or qualifications to those concessions. What a jury might make of the evidence would be a matter for them, of course. But it cannot be gainsaid that Dr Richardson’s proposed evidence is well capable of persuading a jury to quite a different view of the speed at which Mr Hartley was driving at the critical time, which in turn would be likely to be crucial to whether the gross negligence head of culpability might be established.

81 As for the Crown’s alternative head of liability based on excessive intoxication, it is sufficient to say that, on my examination of the evidence, I think a conviction on that basis, while open, was not inevitable. Accordingly, that Dr Richardson’s evidence does not go to the Crown case on intoxication cannot deny counsel’s submission that there has been a substantial miscarriage of justice.

82 As I have said, senior counsel for Director also submitted that previous counsel may have made a rational forensic decision to decline to rely on the report or the witness. I have at least two difficulties with that submission. First, previous counsel was not tasked with running the trial that eventuated. Any suggestion that she might have done things differently is therefore not to the point. It also amounts to speculation anyway. She said nothing in her affidavit to support that assertion. That she was involved in discussions concerning a possible settlement is neither here nor there, for Mr Hartley ultimately pleaded not guilty and ran a trial. In those circumstances, once senior counsel for the Director withdrew his application to cross-examine previous counsel, that had to be the end of this branch of his argument.

83 Secondly, however, even if, contrary to the forgoing, it could be said that previous counsel made, or might have made, such a decision and even if her decision were thought to be relevant to the question under s 276(1)(c), I am satisfied that that could only be an irrational forensic decision. Mr Hartley had everything to gain and nothing to lose if Dr Richardson had been called. The only evidence to the contrary of Dr Mehegan’s opinion (that Mr Hartley was driving at 96 kph at the crucial time) was his account to police and, to a lesser extent, the evidence of GH. The jury had no other expert challenging what, on the face of it, would have appeared to those unschooled in accident reconstruction as compelling evidence from a well-qualified expert capable of reconstructing an accident with scientific precision. The contrary evidence of Dr Richardson — an equally well-qualified expert — is likely to have changed the substance, and complexion, of the trial completely.

84 While senior counsel was correct in pointing out that the upper limit of Dr Richardson’s estimated speed range was coextensive with Dr Mehegan’s (singular) figure of 96 kph, the major import of his conclusion was that the minimum provable speed was 55 kph. And while that lower estimate may have been altered by the concessions gained in cross-examination, as indicated earlier, Dr Richardson qualified each of those concessions with an arguably cogent alternative point.

85 Finally, in my opinion, senior counsel’s submission fails to take proper account of the burden and standard of proof. It is the Crown who must prove gross negligence beyond reasonable doubt. If, having heard Dr Richardson’s evidence, the jury were satisfied, or could not exclude the reasonable possibility, of a much lower speed at the critical time, it is rather unlikely that they would reach the level of satisfaction required with respect to the element of gross negligence (even allowing for the additional factor of intoxication relied on by the Crown). For it is difficult to imagine that a jury would be likely to convict a person of culpable driving causing death based on gross negligence in circumstances where they accepted, or could not exclude the reasonable possibility, that Mr Hartley was driving, not at 96 kph, but only at about the speed limit of 60 kph or perhaps five or so kph above that limit.[22]

Conclusion

86 It is for the foregoing reasons that I concluded at the hearing that Mr Hartley lost a chance of acquittal fairly open to him as a result of the fact that trial counsel was not provided with the report (and thereby lost the opportunity to call Dr Richardson before the jury), and that there has been a substantial miscarriage of justice in consequence. Adapting the language of Winneke P in AHK set out earlier,[23] to have failed to set aside this conviction, and to have deprived a fresh jury of hearing Dr Richardson’s evidence on a retrial, ‘might have [had] the result that an unjust conviction [was] permitted to stand’.

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[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] In order to avoid any risk of prejudice to the proper administration of justice at any retrial, this judgment has been anonymised by the adoption of a pseudonym for the applicant and initials for some of the witnesses, and some of the details of the case that ordinarily would be included (including the location of the accident) have been omitted.

[3] Contrary to s 318(1) of the Crimes Act 1958 (Vic) (‘the Crimes Act’).

[4] See ss 274, 276(1)(c) and 277(1)(a) of the Criminal Procedure Act 2009 (Vic) (‘the CPA’).

[5] Contrary to s 319(1) of the Crimes Act.

[6] Provided the jury were unanimous as to at least one head (R v Beach (1994) 75 A Crim R 447).

[7] See s 318(2)(b) of the Crimes Act.

[8] See s 318(2)(c) of the Crimes Act.

[9] His Honour also cancelled Mr Hartley’s driving licence and disqualified him from obtaining another for six years.

[10] The revised written case was filed on 14 March 2019. This Court was not provided with the original written case.

[11] Citing Knowles v The Queen [2015] VSCA 141, [131] (wherein reference was made to TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 and Gleeson CJ’s remarks about ‘flagrant incompetence’ in R v Birks (1990) 19 NSWLR 677).

[12] See R v Beach (1994) 75 A Crim R 447.

[13] The Director’s response was filed on 11 February 2019, presumably in response to the applicant’s original written case, with which the Court was not provided, instead of the applicant’s revised written case, which was not filed until later, on 14 March 2019.

[14] Reference was made to Bowden (a pseudonym) v The Queen (2017) 54 VR 135, 144[36] (Priest JA).

[15] See, for example, Bowden (a pseudonym) v The Queen (2017) 54 VR 135, 144[36], where Priest JA (in whose judgment Maxwell P and Kidd AJA agreed) sets out the essential differences between the tests for a miscarriage of justice in ‘fresh’ evidence cases contrasted with those involving ‘new’ evidence.

[16] See, for example, Knowles (a pseudonym) v The Queen [2015] VSCA 141, [127]-[146], where, in a joint judgment, Ashley, Redlich and Priest JJA survey the law and procedural practices in cases alleging incompetence of counsel; and Saricayir v The Queen [2018] VSCA 319, [82]-[88], where, in a joint judgment, Kaye, T Forrest and Ashley JJA conduct a similar survey.

[17] See s 276(1)(c) of the CPA (emphasis added). While the terms of s 276(1)(b) (‘as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice’) might be capable of extending to this situation, in the sense that it could be said to involve an ‘irregularity ... in relation to ... the trial’, I think the words in paragraph (c) are more apt.

[18] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469.

[19] Bass (a pseudonym) v The Queen [2014] VSCA 350.

[20] Bass (a pseudonym) v The Queen [2014] VSCA 350, [123]-[124], [126] (footnotes omitted; emphasis added — in bold and italics); see also [113]-[122] under the headings ‘Flagrant incompetence and miscarriage of justice’ and ‘Substantial miscarriage of justice’.

[21] R v AHK [2001] VSCA 220, [8].

[22] While it is unnecessary for the purposes of making good the same point, I venture to say that such a conviction is all the less likely if the jury accepted, or could not exclude, such a low speed in circumstances where the unfortunate AB was crossing the road where he might not have been when Mr Hartley rounded the corner.

[23] R v AHK [2001] VSCA 220, [8].