- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Taylor  QCA 263
TAYLOR, Brock Roy
CA No 72 of 2019
DC No 492 of 2017
Court of Appeal
Appeal against Conviction
District Court at Southport – Date of Conviction: 14 March 2019 (Muir DCJ)
22 November 2019
25 July 2019
Morrison and McMurdo JJA and Bradley J
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted by a jury of one count of dangerous operation of a motor vehicle causing grievous bodily harm, before leaving the scene – where the appellant was cross – examined at trial on his failure to provide an expert briefed on his behalf with his version of events prior to trial, suggesting recent invention of that version of events – where the appellant contends that the learned primary judge erred in allowing the cross-examination of the appellant on that point, on the basis that the line of questioning infringed the appellant’s right to silence – whether the cross – examination resulted in a miscarriage of justice
Jiminez v The Queen (1992) 173 CLR 572;  HCA 14, cited
Petty v The Queen (1991) 173 CLR 95;  HCA 34, applied
R v Vannatter  QCA 104, applied
I A Munsie for the appellant
J A Geary for the respondent
Australian Law Partners for the appellant
Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: I have read the reasons of Bradley J and agree with those reasons and the order his Honour proposes.
McMURDO JA: I agree with Bradley J.
BRADLEY J: On 14 March 2019, a jury in the District Court at Southport returned a verdict finding the appellant Brock Roy Taylor guilty of dangerous operation of a motor vehicle causing grievous bodily harm, before leaving the scene. The essence of the offence is the operation of the vehicle in a way that is potentially dangerous to members of the public by presenting a risk over and above that ordinarily associated with driving. The appellant leaving the scene before a police officer arrived was an aggravating circumstance, because the appellant ought reasonably to have known that a person had been injured.
On 27 March 2019, the appellant appealed against his conviction. The sole ground of appeal is that the learned primary judge erred in allowing cross-examination of the appellant in relation to recent invention.
Summary of facts
The relevant circumstances may be briefly stated. On 8 March 2017 at about 8.50 pm, the appellant was driving a Toyota Hilux Utility northbound on Marine Parade between Coolangatta and Kirra. The vehicle he was driving suddenly crossed the double white lines and a painted traffic island into the path of a southbound Toyota Corolla hatchback. The two cars collided head on. The three occupants of the Corolla were injured; one of them required surgery to save his life. The appellant reversed the Hilux backwards from the other vehicle, leaving his car’s front grill behind, and drove away from the scene. The Hilux was found the following day in Tweed Heads, where it had been driven along a dirt road and into a cyclone wire fence. On 13 March 2017, the appellant attended the Coolangatta Police Station with his lawyers and read a prepared statement, in which he admitted he was the driver of the Hilux at the time of the collision.
The trial was conducted over four days from 11 March 2019. The appellant pleaded not guilty. The Crown prosecutor called one of the passengers and the driver of the Corolla, a senior constable who attended the scene shortly after the collision and a Queensland Police Service vehicle inspection officer. The appellant’s defence called Dr Robert Casey, a mechanical engineer, the appellant himself and a person in a relationship with the appellant who had dinner with him at a nearby hotel on the night of the collision. The jury retired at 12.54 pm on 14 March 2019 and returned at 3.42 pm with the verdict of guilty.
On 18 March 2019, the appellant was sentenced to imprisonment for two years, to be suspended after serving eight months, with an operational period of two years. He was disqualified from holding or obtaining a driver’s licence for a period of two years from that date.
The trial and the cross-examination
At the trial, the defence counsel called Dr Casey as a witness. Dr Casey was a mechanical engineer with many distinguished academic qualifications, membership of the Institute of Engineers Australia and a substantial history of publication and work in the field of automotive forensics. Two reports by Dr Casey were admitted into evidence.
In the course of cross-examination by the Crown prosecutor, Dr Casey agreed that when briefed for his first report, he was not provided with an account by the appellant of the collision. A little later, he volunteered that he “never got the opportunity to ask Mr Taylor about the circumstances.”
The next day, when the appellant was cross-examined, there was an objection to the Crown prosecutor’s comment to the effect that the appellant had not told Dr Casey about the position of the Hilux at the time of the collision. This is recorded in the following passage from the transcript:
“Well, you could have reversed out and gone north as well, couldn’t you, just as easily?--- I was on the other side of the road already, so I didn’t want to do another U-turn over double white lines.
No, but I’m saying you could have reversed back into the lane that – on – from which you crossed and then gone north?--- No, I was already sp – pretty much spun the other way.
So we haven’t heard this before, have we?--- What’s that?
The position of your vehicle?--- No. No, I don’t think - no. No.
No. In fact, you didn’t even tell your expert report writer, Dr Casey, did you?--- No, I didn’t.
MR MUNSIE: Objection. I ask the jury be excused.”
The Crown prosecutor submitted those decisions protected a right to remain silent “when questioned or asked to supply information by a person in authority, such as the police.” He submitted they have “no relevance … to an expert report” commissioned by the appellant. As he put it, “Dr Casey is not a person in authority” and the appellant “doesn’t have a right to silence in relation to the author of a report he’s commissioned himself.”
In reply, the defence counsel submitted, “I don’t accept for a moment that his right to silence doesn’t extend to those in the community who are not police officers.”
The learned primary judge allowed the Crown prosecutor’s question, ruling that it did not offend against the law as stated in Petty and Vannatter or the principles in the Director’s guidelines.
The cross-examination resumed, in the course of which the Crown prosecutor put the following questions:
“Now, you’ve heard the evidence of Dr Casey yesterday here in court?--- Yes.
You’ve read his two reports, no doubt?--- Yes. Yeah.
You didn’t really provide him, did you, any real detailed instructions about what you say happened in this collision?--- I can’t really recall, no.
Well, you heard him say he hadn’t received any. Do you accept that?--- Yes.
Now, you saw, no doubt, following the police investigation, the report of Andrew McLaren?--- Yes.
And he found that your right rear brake had some kind of oil leak?--- Yes.
Yeah. See, and I suggest that you picked that up and ran with it and commissioned a report from Dr Casey?--- No, not at all. I – I felt like the car did at the time before the crash and I just truly strongly believe it that was – I tried to correct the car when it turned to the – the left. I’ve overcorrected and then impacted straight into the other car coming the other way.
But you never really told Dr Casey what happened prior to seeing his report or hearing his evidence, did you?--- No.
All right. And you still haven’t?--- No.
In fact, you heard him say it would have been helpful if you had, in fact, provided instructions for him to be able to give a perhaps more accurate comment on the circumstances of this collision?--- Say that again, sorry.
Well, you heard him say and in evidence and you’ve read his report where he says it would have been very helpful for you to have provided him some more detailed instructions about what you say happened so that he could write a more proper, I suppose, and informed opinion about the course of this collision?--- Yes, and - - -
See, because he was then left without your instructions, I suggest, with putting forward possibilities to explain this collision?--- Yeah. Yeah, I suppose, yeah.
And what I’m suggesting now is that you’re now tailoring your evidence here today with details about brake pressure, vehicle positioning and what-not after being alerted to it by Dr Casey as a distinct possibility for the cause of this collision?--- No, I don’t think that at all.
You dispute that?--- Yes.
Otherwise, I suggest you would have told him these kinds of details before he wrote his report?--- No.
And one particular example of tailoring your evidence, I suggest, is that you now say that you applied those brakes hard?--- Yeah. I’d said that from the start, yeah.
But you never told Dr Casey that, I suggest?--- No, I didn’t.
Right. And you realise now that that’s a very important variable in how much your case veers to the left?--- Now I know that, yeah, after, yeah.
And that’s why I’m suggesting you’re now claiming that you hit the brakes hard, despite only travelling at 40 to 50 kilometres an hour?--- Yeah.
MR MUNSIE: Sorry, your Honour. I’m just not too sure which proposition the witness has answered yes to there. I don’t want it to be inferred that, well, just I think it needs clarification.
HER HONOUR: Yes. Mr Churchill, I’ll have you ask the question again to the witness because it wasn’t clear whether he was – he seemed to be agreeing to a proposition that, clearly, he wouldn’t be agreeing to.
MR CHURCHILL: I can’t recall how I stated – phrased the question, your Honour.
Well, I suggest that you’re adding in this extra detail of brake pressure being hard after you’ve heard Dr Casey say that it’s an important variable in your vehicle veering vigorously to the left?--- No. I think I didn’t know how it was – important it was until he asked me, and then I – and then I strongly, like, told him that I did, well, was on the brakes hard, yes.
So you – now you say you did tell him that?--- No, I didn’t, no.
Well, did you or didn’t you?--- No, I didn’t.
At the time of this collision, I suggest to you you would have known, given what you say happened to your vehicle and your driver reaction, that this was a complete accident beyond your control?---Yes, I tried to – tried to correct the car. I’ve over-corrected and then that was when that incident happened.
Yeah. And you would have known at the time that you couldn’t possibly have been blamed for what is an accident beyond your control?--- I’m not too sure about that question, so can you say that again, sorry? I just - - -
Well, you would have known at the time you couldn’t have been blamed for an accident?--- I – I don’t know what happened after that. Like – like I’ve said, I’ve freaked out. I’ve left the scene and I don’t really remember what happened.
Well, what I’m suggesting is at the time you would have known this wasn’t your fault?--- That it – it’s – I, yeah. I’m not sure how to answer that question, sorry.
Surely you would have, I suggest, given your scenario, felt terrible about those inside the other vehicle?--- Yes, I did, yes.
And you felt that at the time?--- I – I – yeah, well, I’ve crashed into someone. Of course, I think anyone would, yeah.
But you still decided to drive away?--- Yeah.
So you couldn’t have been concerned about their welfare then that much, could you?--- No, I did – definitely was, yes.
See, I’m suggesting to you if your version of events, in fact, be the truth, there would have been no need whatsoever for you to then leave the scene, dump your car in bushland, where I suggest - - -?--- It was on the side of the road.
Well, I’m suggesting it was dumped in an area of bushland, where it would have been hard to locate?--- No, it was just at the end of a street. It wasn’t hard to find at all.
I’d suggest there’d be – there’s no need to do either of those things, all or either of those things if you’d – you know, if your version of events had been, in fact, the truth, then you would have known it was not your fault?--- Yeah. Like I said, I – I honestly panicked. I’ve never been in that situation before and I’m very, very sorry for the other people in the car that got injured and I – yeah, I don’t know. Yeah, I don’t know what else to say.
Well, I’m suggesting your story is a complete and utter nonsense. What do you say to that?--- No, I don’t think – I mean, it’s quite true.
Well, I’m suggesting, in fact, it’s a tissue of lies?--- I don’t think that at all because I know. I was there and I know what happened.
It’s the case, isn’t it, you did a U-turn to avoid police?--- I didn’t do a U-turn. My car was already spun around.
No, but I’m suggesting you did a U-turn prior to the collision to avoid police?--- No, I didn’t do a U-turn.
Either that or you weren’t paying proper attention to what you were doing?--- I was paying proper attention, yes.
Or, alternatively, you came around that corner way too fast and had to hit the brakes really hard?--- There was no chance. Like, you’ve seen in the video footage there was two cars right in front of me and we were just – I was following them.”
The Crown prosecutor’s address
In his address to the jury, the Crown prosecutor referred to the evidence of Dr Casey and made the following remarks:
“… It’s a distinct or a significant disadvantage for Dr Casey and his – and with all due respect to him, not being critical of him – but it’s a distinct disadvantage to him and his ability to form a proper opinion, and because he didn’t inspect – physically inspect that vehicle and you might have seen – he basically conceded as much in cross-examination – he can only operate on what information he’s provided with and clearly he wasn’t told by the defendant, the details, or the finer details, of what actually happened from the defendant’s perspective.”
Later in his address, the Crown prosecutor told the jury the following about the appellant’s evidence:
“In terms of the defendant’s evidence, I mean, make what you like, ladies and gentlemen, of his. The – no prizes for guessing the Crown says it’s a complete fabrication, I mean, there was no braking issue, we say, and even if there was, it had absolutely no effect.
Now, he’s now added some significant details into his version, having considered his own expert’s report, and listened to his expert’s evidence – particularly a part about braking hard – to give pretence to why his car veers so suddenly and violently to the left at 40 k – 45 k an hour – which required such an equally and violent oversteer correction.”
The summing up
In her summing up, the learned primary judge told the jury:
“You may think it is a matter of weight, insofar as it concerned Dr Casey’s evidence, but, I also direct you, that, you cannot draw any adverse inference against the defendant, because he did not tell the expert Dr Casey his version of what happened.”
The appellant’s submissions
The appellant contended that the learned primary judge erred in permitting the Crown prosecutor to cross-examine the appellant on his failure to provide Dr Casey with his version of events prior to trial, suggesting recent invention. This was because the line of questioning had infringed the appellant’s right to silence.
Although the learned trial judge had given the direction to the jury, extracted above, the appellant contended the direction could not cure the prejudice caused to the appellant’s case by the cross-examination. On this basis, it was submitted, it was not possible for this court to conclude that no miscarriage of justice had occurred.
Consideration of the appellant’s submissions
The common law’s traditional objection to any form of compulsory interrogation finds expression in the principle that a person, who reasonably believes he or she is suspected of having committed an offence, is entitled to remain silent when questioned or asked for information about the offence by any person in authority. This right to silence is protected in a number of ways. No adverse inference can be drawn against such a person by reason of his or her failure to answer the questions or provide the information. It cannot be suggested, by questions asked or comments made by the Crown or the trial judge or by evidence led by the Crown, that a defendant’s consciousness of guilt may be inferred from his or her exercise of the right to silence. It cannot be suggested that a defence raised at the trial is a new invention or is suspect or unacceptable because the defendant, exercising the right, was previously silent about it. Nor can such a submission be put simply because a defendant did not disclose his or her defence until the appropriate stage of the trial.
It is well-established that questions and submissions inferring recent invention cannot be put based on a failure of an accused to provide an explanation to the police or a failure to notify the prosecution about a defence before the appropriate time at the trial.
The appellant’s contention that a miscarriage of justice could have occurred, by reason of the cross-examination, cannot be accepted. There are three reasons.
First, it was not suggested in cross-examination that the fact the appellant did not tell the police about hitting the brakes “hard” was a basis to conclude he had recently invented his evidence, or embellished or tailored it. The Crown prosecutor did not attack the appellant’s exculpatory evidence simply because he exercised his right to remain silent about it when he was questioned by police. It was put to the appellant that fleeing the scene of the collision was not consistent with his evidence being truthful. However, no link was drawn between that part of his conduct and his decision, some days later, to make only a limited and pre-prepared statement to the police.
Second, the cross-examination about his failure to communicate his version was limited to his failure to speak to Dr Casey. No relevant right to silence operated with respect to the decision to brief Dr Casey. The decision not to give Dr Casey a version of events different from that found in the police and prosecution materials was not an exercise of any common law right to silence. It was a forensic decision relating to the conduct of the appellant’s defence at trial.
Third, the appellant gave evidence at the trial. Where an accused person gives evidence, the jury will usually have to consider the truth or falsity of that evidence as it relates to the facts in issue. In making an assessment – and in deciding the weight to give to the accused’s evidence – the jury can consider the accused’s failure to take an earlier opportunity to give his or her version of events to a person, not in authority, to whom the accused might reasonably have been expected to give the version. As Brennan J explained in Petty v The Queen:
“The rule is designed to prevent oppression by the police or other authorities of the State; it is not designed to preclude a jury from drawing inferences from silence when a response might reasonably have been expected, the response not being sought by or on behalf of a person in authority.”
It follows that the appeal proceeded on a mistaken view about the nature and extent of the appellant’s right to silence.
Disposition of the appeal
I would dismiss the appeal.
Jiminez v The Queen (1992) 173 CLR 572 at 579 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ), citing Barwick CJ in McBride v The Queen (1966) 115 CLR 44 at 49-50.
The questions were put by the Crown prosecutor, Mr Churchill, and the objection was taken by the defence counsel, Mr Munsie.
(1991) 173 CLR 95.
 QCA 104.
Petty v The Queen (1991) 173 CLR 95 at 99 (Mason CJ, Deane, Toohey and McHugh JJ).
(1991) 173 CLR 95 at 111 (Brennan J).
(1991) 173 CLR 95 at 107.
- Published Case Name:
R v Taylor
- Shortened Case Name:
R v Taylor
 QCA 263
Morrison JA, McMurdo JA and Bradley J
22 Nov 2019
No Litigation History