R v Martinez

Gotterson and Morrison JJA and McMeekin J

18 September 2015

This appeal against conviction for an offence against s 328A(1) of the Criminal Code (dangerous operation of a vehicle causing death) raised the important issue of whether an identified irregularity can constitute a miscarriage of justice.

On 5 March 2015 the appellant was sentenced to two years’ imprisonment and disqualified from holding or obtaining a driver’s licence for three years. [2]. Employed as a truck driver, [4] he was alleged to have veered to the left then suddenly to the right – and into the path of an oncoming vehicle. A collision ensued and the other driver died as a result of injuries he sustained. [7].

The evidence indicated a lack of contributing circumstances including excessive speed; mechanical defects; any blood alcohol level or usage of a mobile phone at the time of the collision. There was evidence that it had rained in the vicinity that morning however at the time the vehicles collided, that had subsided to “a light drizzle”. [9].

The appellant’s explanation for the crash was that his truck had been involuntarily pushed around both on and off the road by a strong gust of wind which he was unable to control, and which eventually manoeuvred his vehicle into oncoming traffic. [10]–[11]. Whilst that evidence accorded with what the appellant had told his solicitor some time after the incident, he had not mentioned wind gusts when interviewed by attending police at the site approximately two hours after the collision. [12]. In addition, the appellant’s account did not correspond with that of other witnesses who were questioned about the presence of wind in the vicinity of the collision. [13].

The ground of appeal

The sole ground of appeal was that a miscarriage of justice was occasioned by a material irregularity in the appellant’s trial. [14]. That irregularity related to the unintended provision of excluded pages of the transcript to members of the jury [15], totalling at least eight pages. [16]. The appellant argued that the content, cumulatively, could potentially have been interpreted by the jury in a way that was highly prejudicial to him. [17].

In examining each statement which was provided to the jury in order to determine whether they may have adversely influenced its members against the appellant, [18]–[27], the court formed the view that they were indeed capable of possibly having that effect. In his Honour Justice Gotterson’s estimation:

“The degree of prejudice capable of being generated by both of them together might fairly be described as seriously significant”. [30].

Whether there was a miscarriage of justice

As to whether the irregularity constituted a miscarriage of justice of such an order that it resulted in the accused being deprived of a fair trial (see R v Brown [2012] QCA 155), his Honour relevantly observed that the court’s ability to assess that question was obscured by the fact that it was not possible to ascertain whether any juror had read the pages of transcript:

“If they were read, it is not known by how many jurors they were read. Nor is it known what each juror who read them understood them to mean or what inferences, if any, the juror drew from them”. [34].

In the circumstances, the court was unable to conclude that had the irregularity not occurred, the jury would have convicted the appellant. It held that the irregularity had caused a miscarriage of justice. [41]. In the result, the appeal was allowed pursuant to s 668E(1) of the Criminal Code and the conviction was set aside. The court ordered a retrial. [42].