New South Wales Court of Criminal Appeal CITATION : R v Van Den Broek [2000] NSWCCA 10 revised - 29/02/2000 FILE NUMBER(S) : CCA 60081/99 HEARING DATE(S) : 10/02/00 JUDGMENT DATE : 10 February 2000 PARTIES : Regina Martin Gerritt VAN DEN BROEK JUDGMENT OF : Spigelman CJ at 1; Hulme J at 2; Carruthers AJ at 18 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL Twigg DCJ OFFICER : COUNSEL : Crown: M Grogan Appellant: GP Craddock SOLICITORS : Crown: SE O'Connor Appellant: TA Murphy DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL No: 60081/99 SPIGELMAN CJ HULME J CARRUTHERS AJ Thursday, 10 February 2000 REGINA -v-Martin Gerrit VAN DEN BROEK JUDGMENT 1 SPIGELMAN CJ : I will ask Hulme J to deliver the first judgment. 2 HULME J : The appellant was convicted before his Honour Judge Twigg and a jury in February of last year of dangerous driving causing death. He was sentenced to imprisonment for a minimum term of three years commencing on 4 February 1999 and an additional term of three years commencing on 4 February 2002. He has appealed against his conviction and against sentence, although the latter aspect has not been pursued. 3 The basis of the appeal against conviction was the admission into evidence by the trial Judge of evidence from two police officers to the effect that the appellant had admitted to them that he was the driver of the motor vehicle. 4 One of the police officers gave evidence of attending at the scene of the accident at a time when the person killed was still trapped in the passenger side of the vehicle, trapped by his legs jammed under the glove box and his torso and head jammed between the seat and the roof. He said he had spoken to the appellant, who was then a little distance away from the vehicle and the appellant had admitted being the driver. 5 The second police officer attended the scene but it was some hours later that he spoke to the appellant while the latter was in hospital that night. The witness also gave evidence that the appellant had admitted being the driver. 6 His Honour was asked to exclude the evidence of these admissions pursuant to the terms of s 424A of the Crimes Act. 7 The Crown submits that particularly the evidence of the admission to the first police officer, to whom I have referred, Const Gibbs, was admissible and, in any event, the proviso to s 6 of the Crimes Act should be applied if the court took the view that the evidence of neither police officer was admissible. 8 A consideration of the application of the proviso requires attention to other evidence in the trial to the effect that the appellant was the driver of the motor vehicle. 9 There was evidence from two lay witnesses that in the preceding hour or so the appellant was in the passenger seat of the motor vehicle involved. One of those witnesses said that he had so observed the appellant about one kilometre away from where the accident occurred while both vehicles were stopped, that witness then saying he had driven off. 10 Evidence was given by a Dr Henderson who had treated the appellant in hospital to the effect that the appellant had also told him he was the driver of the motor vehicle. 11 Other evidence tending in a similar direction was of observations at the scene. The first person who came upon the scene described the deceased as, in summary, in the passenger side of the front of the vehicle with the appellant up against the deceased. There was other evidence which was uncontroverted to the effect that the deceased was jammed in as I have indicated earlier and had to be cut out. 12 I should add that the vehicle had left the road for no apparent reason and run into one or more trees. There was evidence that it had not rolled over in the course of the accident. Photographs satisfy me of the accuracy of that evidence. They indicate that apart from some areas of substantial damage, there were significant parts of the car which had not been in untoward contact with anything. 13 Counsel for the Appellant has theorised that one cannot be sure that the appellant and the deceased had not in the course of the accident been thrown around inside the vehicle, effectively changing places. 14 However, in my view, the evidence to which I have referred leads inevitably to the conclusion that no roll over occurred, the location of the two persons immediately prior to the accident was the same as that seen immediately afterwards. 15 Thus, even without the evidence of the two police offices which is the subject of objection, the jury must inevitably have come to the conclusion that the appellant was the driver. 16 In that situation I do not find it necessary to embark upon a consideration of whether the challenged evidence of admissions to Consts Gibbs and Hadley was admissible. It is a case where the proviso should be applied and the appeal be dismissed. 17 SPIGELMAN CJ : I agree. 18 CARRUTHERS AJ : I also agree. 19 SPIGELMAN CJ : The order of the court is that the appeal is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.