R v Crandall[2001] QCA 409

COURT OF APPEAL

de JERSEY CJ

JONES J

DOUGLAS J

CA No 74 of 2001

THE QUEEN

v.

BRADLEY KARL CRANDALL Respondent

BRISBANE

DATE 26/09/2001

JUDGMENT

THE CHIEF JUSTICE: I will ask Justice Jones to deliver the first judgment.

JONES J: Bradley Karl Crandall appeals against his conviction upon trial of the offence of operating a motor vehicle dangerously and thereby causing the death of Susan Eileen Lewis. 

The incident giving rise to the charge occurred on 20 June 1999 on the Pumicestone Road at Toorbul. The vehicle was a single cab, 1985 model Toyota Land Cruiser owned by the accused. The prosecution relied on speed as the element which constituted the dangerous operation. The two essential issues litigated at trial were who was driving the vehicle and whether there was evidence that it was driven at such a speed as to be operated dangerously. 

The principal witness on both these issues was one, Simon Cope, who said he was a passenger in the vehicle which at the time was being driven by the appellant.  There were two other passengers; Jodie Turnbull and the deceased woman. The latter was sitting on Mr Cope's lap in the middle of the vehicle's cab.  None of the vehicle's occupants were wearing seat belts. 

The defence case was that it was Mr Cope and not the appellant who was driving the vehicle. The jury by its verdict was clearly satisfied that it was the appellant who was doing the driving. 

The notice of appeal raised two matters but the first of these is abandoned. The remaining point on this appeal is a short one.  It is whether the conviction is unsafe and unsatisfactory having regard to the evidence of the speed of the vehicle. 

The evidence discloses that in the early hours of 20 June 1999 the party set out from a residential address to go to a shop. The vehicle went out of control on an S-bend which is located at the end of a straight section of road approximately one kilometre long. The speed limit on this straight section is 100 kilometres per hour but at the bend there is an advisory sign denoting 70 kilometres per hour.

The weather conditions were fine and the road surface was dry. 

After the loss of control of the vehicle along the S-bend it came to rest lying on its side against a clump of trees beyond the edge of the roadway. Photographs of the scene were tendered which depicted various tyre marks on the road and these were reproduced on the sketch plan. 

The only direct evidence of speed of the vehicle came from Mr Cope. He spoke of the vehicle being driven "aggressively" when it negotiated the first corner on its journey some distance before the loss of control. Thereafter he estimated the changing speed of the vehicle until it reached the S-bend where it went out of control. He did not look at the speedometer. As the vehicle progressed along the straight section of road prior to the S-bend Mr Cope assessed the speed at 120 to 130 kilometres per hour.  In cross-examination he said, "As it entered the bend the speed was 110 to 120 kilometres an hour", and at one other time suggested 100 to 110 kilometres per hour.

As the vehicle was exiting the first bend the back of the vehicle slid out to the right and the vehicle then followed an erratic course out of control. When asked what he based his estimates on Mr Cope said "engine noise" by which he meant to indicate that the diesel engine of the vehicle was "working hard".

Obviously engine noise would be but one factor in making the assessment but it was suggested that the estimate was based on noise alone. Such an assessment of speed would inevitably have involved other sensory inputs such as the visual perception of the passing landscape and the movement of the vehicle, in particular, the swaying of the back of the vehicle as it attempted to negotiate the first curve on the S-bend. It is not necessary and, indeed, somewhat artificial to analyse all the factors which might cause a variation in engine noise which were referred to in the appellant's written submission.

On the subject of familiarity with the vehicle noise Mr Cope conceded that he had not previously driven in that particular vehicle though he had experience with light vehicles owned by his family and friends.

Given the issues at trial it is not surprising that Mr Cope was subjected to close cross-examination about his recall of the events and about the inconsistencies between his evidence and the statements he had earlier made to police officers. But there was no questioning of him relating to any other indicators of speed nor was he cross-examined about the possible causes of variation in engine noise such of the kind which have been put in the appellant's outline.

The highlights in his evidence in cross-examination from the defence perspective were drawn to the attention of the jury by the learned trial Judge during her summing-up. In the end it was a matter for the jury whether its members accepted Mr Cope as a reliable witness on the question of the speed of the vehicle. 

The appeal raises questions about both the nature and quality of this evidence.

On the question whether it was direct evidence or expert evidence, reference was made in the appellant's outline to cases concerning the reception of evidence of a non-expert and to the principle set out in Cross on Evidence, Australian edition, which is expressed as non-expert evidence "not ordinarily being allowed when the inferences are such that the jury can be put in a position of equal vantage for the drawing of them". 

Reference is made to the case of The Queen v. Griffith (1997) 2 QdR 524 and R v. Palmer (1981) 1 NSWLR 209. 

Mr Cope's evidence, in my view, is not opinion evidence.  It is no more than his expression of an assessment of speed of the vehicle. The actual speed, whether it be of a hundred kilometres per hour or 120 kilometres per hour, is not particularly important. The question for the jury was whether the speed, whatever it was, constituted operating the vehicle dangerously in the circumstances.

Those circumstances included a number of unsecured passengers, the fact that it was night time, and the absence of any other explanation for the loss of control of the vehicle which is illustrated by its swaying and its course as it went out of control.

For these circumstances it was not necessary for the usual direction on circumstantial evidence to be given as it was not suggested that inferences leading to guilt arose on this material. 

The appellant argues that the verdict is unsafe and unsatisfactory. The question which this Court must pose for itself in terms of the decision of M v. The Queen (1994) 181 CLR 487 is whether it thinks on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In my view it was open to the jury to accept that evidence of Mr Cope as reliable and that justified a conclusion that the appellant's operation of the vehicle was in fact dangerous. The jury clearly accepted Mr Cope's evidence on the driver issue in which he was supported by evidence of Mr Lewis. 

In those circumstances I do not come to the view that the verdict was unsafe and unsatisfactory and I would dismiss the appeal.

THE CHIEF JUSTICE: I agree. There was enough evidence to sustain the conviction. Many of the points raised now for the appellant could have formed the subject of cross-examination of Mr Cope at the trial but they did not. Mr Cope's evidence about speed therefore remained substantially unchallenged. That being so, notwithstanding the criticisms now raised, the conviction based on that sufficient evidence should, in my view, be sustained.

DOUGLAS J: I agree in the reasons of Justice Jones and the Chief Justice.

THE CHIEF JUSTICE: The appeal is dismissed.

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