The Queen v Cossor[1999] QCA 403

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 206 of 1999

Brisbane

[R v Cossor]

THE QUEEN

v

JANELLE MARCIA COSSOR

Appellant

Pincus JA

Ambrose J

Chesterman J

Judgment delivered 24 September 1999

Separate reasons for judgment of each member of the Court; each concurring as to the order made

APPEAL AGAINST CONVICTION DISMISSED

1. PINCUS JA:  I have read the reasons of Chesterman J and agree with those reasons and the order he proposes.

2. AMBROSE J: I agree.

3. CHESTERMAN J: On 10 May 1999 in the District Court at Southport the appellant was convicted of dangerous driving causing death and sentenced to perform 240 hours of community service. The offence had been committed almost 10 years earlier.

4. At about 9.15 pm on 16 September 1989 the appellant was driving a hired motor car south along the Gold Coast Highway, near its intersection with Christine Avenue at Miami.  The deceased, Stephen Shanahan, was riding a bicycle, apparently from west to east, across the Highway at the intersection.  Although the intersection was lit the level of illumination was low.  The deceased was wearing dark clothing.  His bicycle had neither lights nor reflectors.  The traffic lights which control the intersection were showing green to south bound traffic.  Despite this the deceased crossed where there was no marked pedestrian crossing.  He must have been intoxicated.  Examination of his blood taken at post-mortem revealed a concentration of alcohol expressed as a percentage of .25.   

5. The only circumstance relied upon by the Crown as indicating that the manner of the appellant’s driving was dangerous was excessive speed.  The limit for the highway at the relevant location was 60 kilometres per hour.  The Crown led evidence from two witnesses that shortly before the collision the appellant was driving at a speed of 100 or 120 kilometres per hour.  This evidence came from two witnesses, Mr Streets and his sister, Mrs Hickson.

6. There were no eyewitnesses to the fatal collision.  Mr Streets and his sister were travelling south on the highway when their car was overtaken by another about 370 metres north of the intersection.  Mrs Hickson was driving and slowed for a red light at an intersection north of Christine Avenue.  As she slowed another vehicle went past at a speed which she estimated at 100 kilometres per hour and her brother at 120 kilometres per hour.  When the light changed to green they drove south and encountered the aftermath of the collision.  Three other witnesses who were in the vicinity of the collision saw the appellant’s vehicle but only after impact.  When observed by those witnesses its speed did not appear excessive. 

7. The appellant argued that the trial judge should not have admitted the evidence of Mr Streets or Mrs Hickson because “... it did not satisfactorily identify the speeding vehicle observed by them at the earlier point of time with the appellant’s vehicle ...”.  During argument the appellant sought and was given leave to add a further ground, that the conviction was unsafe and unsatisfactory.  The same point underlies both grounds.  It is that the evidence of the two witnesses was insufficient to establish beyond reasonable doubt that the car observed travelling at high speed by Mr Streets and his sister was the appellant’s.  Without their evidence there was no case of dangerous driving to go to the jury.

8. The substance of the appellant’s argument is that the two witnesses testified that a car “somewhat similar” to the car involved in the accident had passed them about 90 seconds before they arrived at the scene of the accident.  The lights at which they stopped were measured to be 368 metres north of the collision.  Each of the witnesses said that he and she had looked away after the car overtook theirs and they lost sight of it as it travelled south.  Neither observed the collision and could not say whether the overtaking vehicle had continued straight down the highway, or turned off.

9. The submission rather understates the effect of the evidence.  Mrs Hickson was the driver of the car in which her brother was a passenger.  She said that she was driving at about 75 kilometres an hour in the right hand lane of the highway.  A “light creamy coloured” car overtook her vehicle.  She estimated the speed at about 100 kilometres an hour.  It was travelling in the left hand lane.  She then stopped at a set of traffic lights and spoke to her brother.  When the lights turned green she drove south to Christine Avenue where she noticed a similar coloured car to that which had overtaken them.  It was parked on the side of the road near a McDonald’s restaurant.  Mrs Hickson did not notice the registration number of the car nor could she identify the driver of it as the woman she saw standing next to the “similar coloured” car near the restaurant.

10. Mr Streets gave similar evidence but had observed more features of the car which sped past.  He noticed it was a Falcon, the model of which, he believed, was EA.  He noticed that its registration plates were not Queensland issue but had black marking on a yellow background.  He estimated its speed at 120 kilometres an hour.  It was a light colour, most probably light blue. 

Neither witness observed any other cars travelling south on the highway.  Both formed the impression that the driver of the other car was female.

11. The appellant gave evidence.  She said she was driving a light blue EA model Falcon which had New South Wales number plates, black and yellow in colour.  She said she drove through the intersection at 55 kilometres per hour and did not observe the bicyclist before impact.  She applied her brakes at the time of the collision.  Her vehicle came to rest about 200 metres further south from the collision.  There is no evidence that she was braking hard or at all for the whole of that distance.  There were no tyre marks left on the road surface. 

12. The trial judge very fairly charged the jury that they could not convict unless satisfied beyond reasonable doubt that the car observed by Mr Streets and Mrs Hickson was indeed the appellant’s and that it was travelling at a speed of between 100 and 120 kilometres per hour and continued at an excessive speed until the point of impact.  His Honour said:

“I remind you that the only evidence in the trial with regard to excessive speed comes from those two witnesses [R233.51] ...

... the nub of this case centres on the evidence of Miss Hickson and Mr Streets.  Are you satisfied beyond a reasonable doubt that the vehicle which overtook them at considerable speed, whether it be 100 or 120, was the vehicle of the accused and, if you are, are you satisfied beyond a reasonable doubt that the vehicle was still travelling at an excessive speed, even though the Crown cannot point to any particular speed, immediately prior to the impact ... The Crown asks you to draw those two inferences, but before you could draw either you must be satisfied of each beyond a reasonable doubt.” (R235.55-236.15)

The trial judge had earlier (R225) warned the jury that the prosecution case was based entirely upon the allegation that the accused was driving excessively fast and that if the appellant’s evidence that she was driving at 55 kilometres per hour left a reasonable doubt about whether her speed was excessive they could not convict. 

13. The evidence that identified the appellant’s car as that which overtook the witnesses and the inference of continuity of speed is not such as to fall into the category described by the High Court in M v The Queen (1994) 181 CLR 487 at 494:

“If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted ...”

The crucial evidence is not such that the jury could not have been satisfied beyond reasonable doubt it was the appellant who overtook Mrs Hickson at a high speed at which she continued to drive the 368 metres south along the highway to the fatal meeting with Mr Shanahan’s bicycle.  Indeed the evidence appears to be quite cogent.  If the jury was satisfied as to the veracity and accuracy of the evidence of Mrs Hickson and in particular, Mr Streets, and was sceptical of the appellant’s evidence then it was entirely justified in convicting.  Mr Streets’ evidence which correctly identified so many features of the appellant’s car together with the evidence that there were no other vehicles in the vicinity is strongly probative of the prosecution case.  The short distance between point of observation and collision allows the inference that the appellant continued at high speed to Christine Avenue. 

14. In my opinion the appellant has not shown that her conviction was unsafe or unsatisfactory.

15. The appellant had applied to the trial judge for a permanent stay of proceedings on the basis that the delay of almost 10 years had caused significant prejudice such as to result in an unfair trial.  The particular of prejudice was the inability to locate a witness whose evidence may have been critical. 

16. The existence of the witness was proved but he could not be identified and therefore could not be found.  One of the witnesses who was called, Mr Birkbeck, was an officer employed by the Department of Transport.  He had been patrolling the highway shortly before the collision and had intercepted a speeding passenger coach.  The coach and Mr Birkbeck’s car stopped on the eastern side of the highway south of Christine Avenue.  Mr Birkbeck and the coach driver stood between the two vehicles.  He was facing in a generally south easterly direction towards the coach driver while he wrote out a ticket.  He heard the noise of a collision behind him and turned around.  He saw the appellant’s Falcon “pulling off the road with all damage in front and smoke pouring out of the radiator and smashed windscreen ...” (R23.20; voir dire).

17. At the trial Mr Birkbeck gave evidence that the bus driver was facing north-west, that is, towards the intersection and that:

“... if he was watching he may well have seen the actual impact and collision ...” (R170.15).

With the passage of 10 years all trace of the driver and his identity was lost. 

18. Another witness was affected by the passing of  time.  The investigating officer who arrested the appellant, Constable Goodwin, had developed a mental illness which caused him to be invalided out of the service and left him without any memory of his investigation of the incident.  He was not, however, a witness to the incident or even its immediate aftermath.  It does not appear that his evidence would have gone beyond a description of the scene, the location of the deceased, the bicycle and the appellant’s car after the collision.  These are recorded in sketch maps, diagrams and photographs which were tendered at the trial.

19. The relevant chronology appears to be this:

• The collision in which Mr Shanahan was killed occurred on 16 September 1989.
• About three months later the appellant moved address. She moved twice more in a relatively short period of time. She did not advise police of the change to her address until May 1991 when she notified authorities of the change to her address on her driver’s licence. It was a requirement of the Traffic Regulation 1962 that she give notice of a change of address for the purposes of holding a driver’s licence within 28 days.
• On 10 April 1990 a summons for the appellant to attend a coronial inquest into the death of Mr Shanahan was issued but not served because the appellant could not be found.
• On 15 May 1990 the inquest commenced.
• On 11 June 1990 a second summons was issued for the appellant’s attendance but again the police were unable to find her.
• On 14 March 1991 the coroner concluded his inquiry and committed the appellant for trial. A warrant was issued for her arrest.
• In April 1991 police again inquired for the appellant at her last known address but still could not find her. The warrant was sent to the Warrant Bureau.
• On 25 May 1991 the appellant corrected the address on her driver’s licence.
• On 4 September 1998 the warrant was executed when the appellant was stopped for a random roadside breath test.
• On 4 May 1999 the trial commenced. Because the appellant had not been represented at the inquest her counsel asked for, and obtained, a voir dire to ascertain and test the evidence of the prosecution witnesses.

The witnesses who were called for the prosecution had given statements  prior to or at the inquest. 

20. The appellant gave evidence that she had been told by the investigating police officer that she would be informed within three months if she was to appear at the coronial inquest.  She was not contacted within that time and moved address shortly afterwards. 

21. The trial judge in refusing a stay noted the appellant’s submission (R75.4-75.7):

“... that the failure of the prosecuting authorities to continue to look for the accused after the order was made committing her for trial is such that it cannot be cured by any directions a trial judge may give to a jury”.

His Honour thought there was some force in the submission and went on (R75.7-75.13):

“I cannot and do not speculate as to what the bus driver may or may not have been able to say ... but it is at least probable that he would be in a better position to testify ... as [sic] Officer Birkbeck.”

The trial judge then referred to Mr Goodwin’s illness and noted that another police witness had, by reason of the delay, been unable to recall some matters of detail concerning the scene of the fatality. 

22. His Honour then turned to the question whether the delay had been caused by those responsible for the prosecution (R75.28-75.38):

“Although the police no doubt can be criticized for failing to continue to look for the accused after the order for her committal ... in March 1991, it appears that what was done, that is having the warrant forwarded to the Warrant Bureau and entered on to the register, and in effect ... waiting to see whether the accused would be intercepted by police thereafter ... was apparently ... the normal procedure in such circumstances ... there does not appear to have been anything different in this case when compared with any other case involving an unknown suspect.”

The trial judge then referred to the appellant’s evidence and her failure to comply with the Traffic Regulation until 25 May 1991 and observed (R76.5-76.9):

“... had she complied with her obligations ... then the driver’s licen[c]e inquiry conducted on 11 June 1990 must surely have revealed an address at which she could be contacted.”

His Honour summarised (R76.10-76.15):

“Ultimately I am driven to the conclusion that although there has been delay in this case, and that some prejudice may well have resulted to the accused as a result ... I am not persuaded that the delay has been caused by default or impropriety on the part of the prosecution.”

23. The principles relevant to the discretion to grant or refuse a stay of proceedings appear to be the following:

“[T]here is a strong public interest in the prosecution of serious offences and the conviction of offenders.  However, ... the public has a superior interest in ensuring that judicial processes are not abused, that accused persons’ trials are fair to them ..., that innocent persons are not convicted and that public confidence in the administration of justice is maintained”: per Fitzgerald P in Johannsen and Chambers (1996) 87 A Crim R 126 at 131;

“... the starting proposition is that a prosecution will be stayed as an abuse of process only in ‘exceptional or extreme’ cases ...”: ibid at 132; and

“... there is a strong predisposition toward permitting prosecutions to proceed, with procedural and other rulings and directions moulded to achieve a fair trial which produces a result free of the taint of risk of miscarriage of justice ... .  A stay should not be granted if the prosecution can proceed, uninfluenced by improper purpose, without unfairness to the accused, with a legitimate prospect of success and, in the event of conviction, no significant risk that, because of delay or other fault on the part of the prosecution, an innocent person will have been convicted”: ibid at 135. 

24. In Jago v District Court (NSW) (1989) 168 CLR 23, Mason CJ said:

“The continuation of processes which will culminate in an unfair trial can be seen as a ‘misuse of the Court process’ which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial. ... [T]he power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed”  (at 30-1).

“The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial ... .  At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged.  The factors which need to be taken into account in deciding whether a permanent stay is needed ... will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused ... .  In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare ...” (at 33-4).

Brennan J said (at 47):

“Obstacles in the way of a fair trial are often encountered in administering criminal justice.  Adverse publicity in the reporting of notorious crimes ... adverse revelations in a public enquiry ... absence of competent representation ... or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed.  Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness.  When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues.  The responsibility is discharged by controlling the procedures ... by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.”

25. When the facts are looked at in light of these principles it does not appear that the trial judge wrongly exercised the discretion to refuse a stay of proceedings.  Delay itself will scarcely ever justify a stay.  Here there was more than delay in the sense that evidence could not be obtained from the bus driver.  The extent to which this prejudiced the appellant is wholly unknown.  All that is established is that the witness was facing in the general direction of the intersection and may not have been so distracted by the annoyance of being given a traffic infringement notice than he might have seen the appellant’s vehicle and been able to estimate its speed at something less than that observed by Mr Streets and Mrs Hickson.  It is equally possible that the evidence would have assisted the prosecution.  A stay of the prosecution of a serious criminal offence cannot be justified on the basis that there may be prejudice if the trial proceeds.  Somthing more substantial needs to be shown.  Difficulties in obtaining evidence occur frequently in criminal trials where proceedings are conducted expeditiously.  It is noteworthy that Brennan J thought the unavailability of a witness was not enough to justify a stay.

26. There is nothing in the complaint that Sergeant Honour had become vague about some details of the locality or that Constable Goodwin was unable to testify.  The sketches and photographs obtained timeously were available.  The evidence adduced in relation to the intersection favoured the appellant.  It was established that the appellant had a green light, and that the deceased dressed in dark clothes crossed the intersection in an area of      shadow.

27. The trial judge was rightly critical of the police for failing to make more energetic attempts to locate the appellant.  After she corrected the address on her driver’s licence in May 1991 it should have been a simple matter to locate her.  The system apparently did not call for periodic checks of the register of drivers but relied on the random chance that the appellant might be stopped for a traffic violation and the outstanding warrant discovered and executed.  The system has since, it is said, been changed but it is small excuse that an obviously haphazard approach to the execution of warrants was official policy.

28. Although the trial judge did not criticise the appellant I do not think she should escape censure.  Accepting, as the trial judge felt obliged to do, that she was given the intimation she claims by Constable Goodwin she had no justification for ignoring the possible consequences  of her actions.  She might have been told that she could assume she would not be required to give evidence at the inquest but she had no basis for thinking that there would not be an inquest or that her conduct would not become the subject of criminal proceedings.  She changed address without notifying the police and without bothering to inform herself of the outcome of the inquest.  A responsible citizen involved in a fatal motor vehicle accident should be expected to show some passing interest in the investigation of the event.  Had she done so she would have known of the charge against her and the delay would have been avoided.  The appellant must accept some responsibility for the delay.  This is relevant to the exercise of the discretion.

29. Coupled with the lack of proof of prejudice, the appellant has failed to show that the continued prosecution produced a necessarily and incurably unfair trial.  In my opinion the appeal should be dismissed.