The Queen v Hayes[1998] QCA 415

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 319 of 1998

Brisbane

[R v Hayes]

THE QUEEN

v.

ANDREW CRAIG HAYES

(Applicant)Appellant

Pincus JA

Thomas JA

Chesterman J

Judgment delivered 11 December 1998.

Joint reasons for judgment of Thomas JA and Chesterman J; separate reasons of Pincus JA concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 11 December 1998

1. I have read the joint reasons of Thomas J.A. and Chesterman J. and am in substantial agreement with them.  I am of opinion that the orders which their Honours propose should be made.  In situations such as that in which the appellant was interviewed at the hospital, commonsense dictated that the police interview be properly - i.e. electronically - recorded.  It must have been evident that there was a prospect that the appellant would be charged with dangerous driving causing grievous bodily harm.  Why police, in such circumstances, persist in the unsatisfactory practice of relying on a recollection of the incriminating conversation written in a note book is not easy to understand.  Apart from the uncertainty as to whether this appellant was fit to be interviewed, the failure properly to record the incriminating interview should in my view have been taken into account in favour of the appellant in considering whether the evidence could fairly be let in.

2. With respect to the sentence, the range of periods of imprisonment which may properly be imposed for this offence extends up to 14 years, that being the maximum prescribed by the Code:  s. 328A(4)(b).  This was not a case in the worst category of offences caught by that provision:  there was no evidence of persistent dangerous driving, nor any history of criminal behaviour.  But unless the statutory maximum is to be treated as a dead letter it seems to me impossible to hold that the 3 year sentence imposed was not warranted.

JOINT REASONS FOR JUDGMENT - THOMAS JA AND CHESTERMAN J

Judgment delivered 11 December 1998

1. The appellant was convicted in the District Court of dangerous driving causing grievous bodily harm with a circumstance of aggravation (blood alcohol of .157%).  The primary issue at trial was whether the appellant was the driver of a Commodore motor vehicle which had collided with another vehicle driven by one of the complainants.

2. The appellant (who gave evidence) conceded that he had been drinking heavily over a number of hours preceding the incident, which would seem to have occurred shortly before 9.30 p.m.  No issue existed in relation to his intoxication or the level thereof, or of the fact that the Commodore in which he was travelling had been driven dangerously across double lines resulting in collision with another vehicle and grievous bodily harm to two complainants.  It was however clearly demonstrated that the appellant also was injured in the incident.  He was observed to be lying unconscious or comatose in a ditch by the first witness upon the scene and was later observed to be vomiting and shaking and then staggering at the scene.  He was taken to hospital where the notes indicate, “No recollection of event.  Total amnesia.”  He was placed on intravenous saline at 2230 hours and on intravenous morphine at 1.05 a.m.  When his wife saw him in hospital she had to bend down to hear him and had difficulty in understanding what he was trying to say.

3. The appellant’s version is that after telephoning his wife at about 7.30 p.m. to arrange transport home, he has only a vague recollection of having been in the back of the Commodore, and that his companion Ellerton was in the front in a position where he had to “turn over his shoulder” in order to speak to the appellant.  His next recollection is of waking up in a hospital bed.

4. There were no eyewitnesses identifying the driver of the Commodore and Ellerton was not called as a witness.  There was no suggestion of any third person being in the Commodore at any material time, and there is nothing in the evidence that gives any reason to think that someone else may have been with them.  The only persons at the scene when the first witness (Ms Pearce) arrived were the appellant (lying in the ditch) and Ellerton who was sitting in the front passenger seat unable to move.  He was eventually cut out of the car from that position.  There is also uncontradicted evidence from a policeman who came to the scene that while Ellerton was in that position he was restrained by a seatbelt.

5. The principal ground on which the appeal is based concerns the admission of evidence of Constable Brown, one of the police officers who went to the hospital to obtain a sample of blood.  Over defence objection he was permitted to give evidence of alleged oral admissions by the appellant to two leading questions addressed to him in hospital by one of the policemen.  The questions were respectively “Were you involved in this incident?” and “Were you the driver of the maroon Commodore sedan?”.  To each the accused is said to have replied, “Yes”.  This conversation was not recorded, but the police evidence was that it was later written into the notebook of one of the police officers concerned, and initialled by the other.

6. Objection was taken to the admission of such evidence and his Honour, after a voir dire, permitted the evidence to be called.  It is not necessary to discuss the matter at length, as Mr Meredith, counsel for the Crown on the appeal, fairly (and correctly in our view) conceded that there was no sufficient evidence before the learned judge that the appellant was in an appropriate condition to be interviewed at the time when the alleged admissions were made or to discharge the onus that lay on the Crown in the voir dire.  Although the hospital notes were placed before the judge, no medical evidence was called to discharge the Crown’s acknowledged onus of showing that the statements were voluntary or to permit a court to make a reliable finding that he was in a condition to know what he was saying.  In a situation like the present, factors of voluntariness, fairness, reliability, and other factors that might call for an exercise of discretion to exclude such statements tend to overlap.

7. It is unnecessary to discuss any concern that might otherwise be felt by the court from the failure of the police to make any attempt to record the conversation by means of a recording device, as it is conceded the evidence ought to have been excluded in the absence of medical evidence of his capacity to give reliable responses.  The basic evidence of his intoxication, of his behaviour at the scene and so far as it is known of his injured state made this necessary.  It is difficult to see how in the state of the evidence the learned judge could draw any reliable conclusion on that subject.  It should have been excluded on the grounds of involuntariness, unfairness and significant potential unreliability.

Proviso

8. The question is whether despite the reception of this evidence the proviso should be applied on the ground that no substantial miscarriage of justice could have resulted.

9. The wrongful reception of evidence is an error that may range from the trivial to the crucial.  In most cases we should think that the improper reception against an accused person of his admission of a fact that is of primary importance in the case would render the application of the proviso highly unlikely.  However the present case would seem to be exceptional in that the other evidence tendered by the Crown indicating that the appellant was the driver really admits of no doubt that he was.  There is no evidence capable of raising a reasonable doubt that some other person was in the car at the time; and the evidence that after the collision the seriously injured Mr Ellerton was found strapped into the passenger side seat by that seatbelt really leaves no other reasonable inference open than that the appellant was the driver.  The above evidence was not challenged.  In these circumstances it is impossible to think that any reasonable jury, properly directed and acting only on the admissible evidence, could have come to any different conclusion other than the guilt of the appellant.  In other words, in this particular case, the wrongly admitted evidence could not be regarded as having possibly tipped the scales against the appellant.

10. We would therefore dismiss the appeal.

Sentence

11. There is also an application for leave to appeal against the severity of the sentence.  The penalty imposed was three years imprisonment and the appellant was disqualified from holding or obtaining a driver’s licence for two years.

12. The applicant was guilty of dangerous driving when he was grossly under the influence of alcohol, causing severe injury to two young women.  The impact statements show a very substantial effect upon the lives of the victims with every prospect of the continuation of such effects.  The injuries of one are described as including facial lacerations, broken right ankle, severe laceration of left knee, deafness in right ear, disruption of sight in left eye, severe laceration to the tongue, whiplash injury, perforated duodenum and damage to liver, bowel and kidneys.  There is no medical report or prognosis before the court, but it is a clear case of grievous bodily harm having been caused and of long term injuries.  The other complainant sustained major chest injuries, injury to the cervical spine (whiplash), seatbelt related injuries to the left shoulder, dental injuries and various contusions including lung contusions.  Laparoscopy and peritoneal lavage were necessary.

13. As is often the case in these matters the applicant was a person of generally good character.  He had served in the New Zealand police force for eight years before resigning for medical reasons and coming to Australia.  He is now 35 years old and has a good work history.  He is a man who supports his family.

14. The learned sentencing judge was not supplied with any comparable cases by either the Crown prosecutor or defence counsel, but heard a submission from defence counsel that the three year sentence suggested by the Crown prosecutor as appropriate, was “the top of the appropriate range of sentencing”.  His Honour remarked, “I am by no means convinced that that is so”.  Having examined a number of sentences for such offences we are inclined to think that his Honour was correct in that observation.

15. It is difficult to identify a clear sentencing pattern in the cases to which we were referred and it must be admitted that there is a considerable variation between the sentences which have been imposed by or permitted to stand by this court.  It is enough to say that sentences in the region of three years are not uncommon for dangerous driving causing grievous bodily harm or death associated with significant blood alcohol content on the part of the driver.  Antecedents, including previous criminal history naturally may exert an upward or downward effect on the sentence.  Some cases referred to by counsel for the applicant, notably Wurzbacher (CA No 264 of 1996, 20 September 1996) and Ryan ex parte Attorney-General (CA No 367 of 1996, 8 November 1996) show that lower sentences may properly be given in circumstances where some broad comparison may be made with the present matter.  Equally some other decisions including Byrne (CA No 3 of 1995, 22 March 1995) and Ekstrom (CA No 229 of 1997, 23 September 1997) show that higher sentences are possible in cases where some comparison may be made, although it is fair to say that the circumstances in those cases were overall more serious than those in the present case.  Even so it may be noted that in Byrne a sentence of five years imprisonment with a recommendation after two years and a disqualification for seven years was upheld.

16. In all the circumstances we do not think that the sentence here could be regarded as manifestly excessive although, as noted above it would have been within the discretion of the learned sentencing judge to have made a recommendation for consideration of parole earlier than the statutory halfway mark.  However his Honour was by no means bound to do so and the application should be refused.