New South Wales Court of Criminal Appeal CITATION : REGINA v KINNY [2000] NSWCCA 278 FILE NUMBER(S) : CCA 60422/99 HEARING DATE(S) : 5 July 2000 JUDGMENT DATE : 5 July 2000 PARTIES : REGINA v MARK IVAN KINNY JUDGMENT OF : Mason P at 1; James J at 39; Whealy J at 40 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0026 LOWER COURT JUDICIAL Nield J OFFICER : COUNSEL : Appellant: R J Button Crown: W G Dawe QC SOLICITORS : Appellant: T A Murphy Crown: S E O'Connor CATCHWORDS : Driving in a manner occasioning death - driving in a manner dangerous to other persons - driving under the influence of alcohol and drugs - two vehicles in a collision at an intersection - issue as to driver. DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL CCA 60422/99 MASON P JAMES J WHEALY J Wednesday 5 July 2000 R v Mark Ivan KINNY JUDGMENT 1 MASON P: The appellant was convicted in the District Court on two charges. Count 1 was that he on 11 October 1998 at Turramurra did drive a vehicle, namely, a Toyota Dyna truck registered number TDK 208 when it was involved in an impact occasioning the death of Blair McEwen and at such time of impact he was driving in a manner dangerous to other persons. Count 2 was that he on 11 October 1998 at Turramurra did drive the said vehicle when it was involved in an impact occasioning grievous bodily harm to Tracy Bradley and at the time of the said impact he was driving a vehicle in a manner dangerous to other persons. 2 The appellant appeals against conviction on the ground that the verdict is unreasonable or not supportable on the evidence. The relevant principle is not in dispute. The appellant has cited the recent formulation in The Queen v Mitchell (2000) NSW CCA 188 a [5], per Sperling J, with whom Spigelman CJ and James J agreed: The ultimate question is whether there has been a miscarriage of justice. Where the ground of appeal is that the jury's verdict was unreasonable, the test promulgated in M (1994) 181 CLR 487, as explained in Jones (1997) 191 CLR 439 is whether it was open to the jury to be satisfied of the necessary elements of the charge beyond reasonable doubt, making due allowance for the advantage of the jury in seeing and hearing the witnesses. 3 Two vehicles were involved in a collision at an intersection at Turramurra. It was about it was about 1.50 am. One vehicle was a Ford in which the passenger was Blair McEwen, the deceased referred to in the first count that I have quoted. The other vehicle was a Toyota Dyna truck. The occupants were the appellant and his defacto wife Tracy Bradley. Ms Bradley is the victim mentioned in the second count that I have set out. 4 There was a formal admission that the collision caused the death of the deceased and grievous bodily harm to Ms Bradley, and that at the time of the impact the vehicle was being driven in a manner dangerous to other persons. 5 The issue at trial was, who was the driver of the truck? The Crown case included the following. 6 Ms Bradley said that she and the appellant drank quantities of wine and injected a cap of cocaine each. The appellant had access to the truck, which he brought home from his work. They got into the truck with the appellant driving. The appellant was driving when the collision occurred with Ms Bradley in the passenger seat. Ms Bradley said that she cannot drive a truck, she had no licence to do so and all she can drive is an automatic. The truck was not an automatic. 7 After the collision, she found that neither passenger nor driver door would open. She was stunned and herself very drunk. Eventually someone opened the passenger door for her. She suffered an injury to her left elbow and bruising to her left shoulder and neck. The bruising in her words, "would have been caused by the seat belt" that she was wearing. The appellant was not wearing a seat belt. 8 After she got out of the truck, she saw the appellant trying to start it and the appellant then told her: "start walking". They walked to their home nearby. When they got inside, she said to the appellant that she would say she was driving because, "I just thought they'd go easier on me". She told the police, who arrived soon after that, that she was the driver. Shortly afterwards, she was taken to the hospital. She initially told the nurse that she was the driver. At the hospital, not long afterwards, she learned that someone in the other vehicle had died. She then told the nurse, and subsequently a police officer at the hospital, that the appellant was the driver. 9 Ms Bradley denied in cross-examination that she had switched from the passenger's to the driver's seat shortly before the accident, when the couple were at a bottle shop and she denied vehemently that the appellant had then shown her how to go through the gears (Tr p69). She agreed that a spot of blood on the driver's door, near the handle of the door, was probably hers. Later medical evidence effectively established the same. She explained the blood by her own attempt to get out of the truck through the driver's door when she found the passenger door would not open. 10 The evidence of Ms Delaforce, a nurse, corroborated Ms Bradley's account of bruising to the left side of the neck and bruising and tenderness to the left collarbone. Notes of ambulance officers and a Dr Milligan were to the same effect. 11 Obviously these injuries were consistent with Ms Bradley's evidence about having her sash seat belt as the passenger and not as the driver. 12 Ms Delaforce also corroborated Ms Bradley's evidence that the latter switched her account of who was the driver when she was told that someone had been killed in the accident. 13 Mr Steven Dixon lived near the site of the accident and he was woken by the crash. He observed a woman in the passenger side of the truck screaming for help. The passenger door was jammed but he eventually managed to yank open the passenger door and help the woman out of the passenger seat. Mr Dixon saw the appellant lying across the bench seat to the right of the woman, with his bottom towards the driver's seat. He felt the man's pulse. Mr Dixon was not cross-examined on these aspects of his evidence. 14 Ms Dooley was another local resident. She heard a loud bang and went out to observe the crash. She saw Mr Dixon trying to get a woman out of the passenger side of the truck where the door was jammed. 15 Mr Smith was another resident who was awoken by the crash. When he arrived at the scene, he saw a girl at the truck crying, "Get me out", and throwing her arms about. She was on the passenger's side. After checking the other vehicle and returning from home with some secateurs, he saw the profile of a male on the driver's side slumped over the wheel. The cross-examiner got this witness to confirm that it was dark at the time but otherwise did not seek to challenge the substance of this evidence. 16 Mr Escott was another witness awoken by the crash. He arrived at a time when Miss Bradley had got out of the truck. However, he saw a man in the cabin leaning on the dash board and around the steering wheel. 17 A police officer conducted an electronically recorded interview with the appellant at about 8am on the morning of the accident. The appellant denied being the driver of the truck (Q & A 20). Later he said that he did not remember anything about the collision and that he did not know who was driving the truck (Q & A 25, 26). Later, when told that Ms Bradley had said that she was the driver and asked whether there was anything he would like to say about that, he said: "No, I do not know. Don't know what to say". (Q & A 52). 18 He was shown a bunch of keys, which had come from the pocket of the jeans he was wearing at the time of the accident and he acknowledged, in effect, that they were his (Q & A 63 - 64 Q & A 75-89). Other accepted evidence at trial, established that one of the keys could activate the engine of the truck. 19 Other Crown evidence established that the appellant was considerably affected by alcohol and that a drug, which was the primary metabolite of cocaine, was in his blood stream. 20 A police officer gave evidence that when he attended the appellant's home, within an hour of the accident, the appellant said that he could not remember the accident, that Tracy was driving and that he knew this only because she had told him. 21 The appellant's case at trial was his own sworn evidence. He denied that he was the driver. He said that Tracy climbed in the driver's seat when he stopped off at a liquor store. He got in and sat on the bench seat next to the driver's seat and he helped her adjust the driver's seat. He went through the gears with her, because in his words, "Tracy hadn't driven a vehicle with a column floor shift" (Q & A 85). He said that she was driving at the time of the accident. He was knocked out in the accident but remembers recovering the keys from the truck and putting them in his jeans. 22 He said that it was Tracy who first moved off home from the accident scene. At home he said to her, "You didn't even try and stop" and she replied, "I know. I know". She was swearing and hysterical. 23 In his sworn evidence, he admitted that Answer 26 in the ERISP was a lie. He said that he lied about not knowing who was driving the truck because he didn't want to be the one to dob in Tracy. Other answers in the ERISP were said to be untrue. 24 There is no complaint made about the summing up and it should be observed that it did not contain an Edwards direction about lies. 25 In my view this was a very strong Crown case. I do not consider that the appellant has established a basis for interfering with the verdict of the jury. 26 Prominent aspects of the case include the unchallenged evidence of the disinterested eye witnesses and the corroboration provided by the left neck injury suffered by Ms Bradley, being an injury consistent with her version of the events and not with that of the appellant. 27 Ms Bradley's evidence that she was unfamiliar with driving a truck with gears is corroborated by the appellant's own evidence that he had to teach her about gears when she, according to him, sat in the driver's seat. That, coupled with the fact that the truck belonged to the appellant's employer and the evidence about the keys, makes it all the more improbable that she would have driven. 28 It was not as if either of the two occupants of the truck were concerned about one being in a more intoxicated state than the other. There were significant inconsistencies in the appellant's accounts of what he recollected and said about the critical issues, some of them being admitted lies on the appellant's part. 29 In his written submissions and developed orally, counsel for the appellant points to eight aspects of the evidence which were said to create a sufficient doubt, particularly when considered together. 30 First, the early admissions of Ms Bradley, that she was the driver, being admissions made to a nurse, a doctor and police, which were recanted later in the morning, when she learnt that the passenger in the other car had been killed. In my view, the jury were entitled to accept her account of why she lied initially and why she switched when she did. I find it quite understandable, not necessarily commendable. 31 Secondly, the appellant relies upon the fact that the driver's seat, which was a bucket seat, appeared to be moved forward relative to the adjacent bench seat. This was said to corroborate the appellant's evidence that he had moved the seat forward for Ms Bradley, when she placed herself in the driver's position. In the absence of evidence that the appellant was unable to fit in the seat, or evidence to negate the distinct possibility that the crash had jolted the driver's seat forward, this does not strike me as a particularly convincing argument. 32 Thirdly, the appellant relies upon the discovery of Ms Bradley's blood on the driver's side door. In my view, this is explained, quite satisfactorily, by the evidence coming, not just from Ms Bradley, that she was trapped in the vehicle for a time, in a distressed state. She said that she tried unsuccessfully to get out of both doors and this explains the presence of her blood on the inside of the driver's door near the handle (See Ex 0). 33 Fourthly, it is suggested that the evidence from the neighbours Dickson and Smith was equivocal, or inconsistent in essentials. I disagree and reiterate that the evidence was effectively unchallenged at trial. There was also the evidence from the other two neighbours, to which I have made reference. 34 Fifthly, the evidence about Ms Bradley and the appellant decamping from the scene, was said to support Ms Bradley's consciousness of guilt, as much as that of the appellant, indeed more so. Again, I disagree. There was ample material to suggest that the appellant was more in control of the situation. In any event, nothing turns upon who thought of the idea first. Each occupant of the truck had things to be sorry about and they were both in a confused state. 35 Sixthly, it is suggested that Ms Bradley's injuries to her left side and arm could have occurred as she was thrown to the left against the appellant as her passenger. I think it more likely that hitting the left side of the cabin would have been the cause of major injury to the left elbow. In any event, there is the left neck and clavicle injury, which is consistent with the seat belt injury, which points to Ms Bradley being the passenger. 36 Seventhly, Ms Bradley admitted in cross-examination to having learnt to drive on a car with column shift gears. That may be. But according to her evidence, "That was years and years ago", when she learnt to drive. She was aged 37 at the date of trial. 37 Eighthly, the appellant relies upon his own sworn evidence and his consistent denials that he was the driver. As a general proposition and as a proposition related to the appellant's specific testimony, the jury were not bound to believe this evidence. Even without the competing Crown evidence, there were inconsistencies and improbabilities, to which I have already drawn attention. 38 I have considered these matters severally and in combination. They do not lead me to the view that the jury ought to have entertained a reasonable doubt as to guilt. I would dismiss the appeal. 39 JAMES J: I would agree with the judgment of the President and the order proposed by his Honour. 40 WHEALY J: I also agree. 41 MASON P: 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.