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Court of Criminal Appeal 21 April 2011

Wong v R

[2011] NSWCCA 94

HomicideTraffic & driving
CRIMINAL LAW CONVICTION APPEAL DANGEROUS DRIVING OCCASIONING DEATH WHETHER JURY VERDICT UNREASONABLE CONVICTION QUASHED

Citation: Wong v R [2011] NSWCCA 94
Court: NSW Court of Criminal Appeal
Date: 21 April 2011
Judge(s): Macfarlan JA, Hoeben J, Garling J

Background

A fatal collision occurred at a Pennant Hills intersection in August 2006 when a southbound BMW driven by the appellant struck a red Mazda whose driver was turning right across his path. The Mazda driver died from her injuries. The critical question at trial was whose traffic signal authorised the right turn and which driver faced a red light.

The appellant was charged with dangerous driving occasioning death under the Crimes Act 1900. A jury convicted him at his first trial in 2008, but the Court of Criminal Appeal quashed that conviction and ordered a new trial. A second jury again found him guilty at a retrial in early 2010.

The Crown accepted at the retrial that a conviction could only stand if the jury was satisfied beyond reasonable doubt that the appellant drove through a red light. There was some evidence of speeding, but it was insufficiently clear to found a conviction on that basis alone. The appeal turned entirely on whether that red light finding was reasonably open to the jury.

  • Whether the jury's verdict of guilty was unreasonable within the meaning of s 6 of the Criminal Appeal Act 1912, specifically whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant entered the intersection against a red light.
  • Whether any advantage the jury held from seeing and hearing witnesses could explain the jury's failure to experience the same reasonable doubt as the appellate court.

Decision

Macfarlan JA (with whom Hoeben J and Garling J agreed) applied the principles from M v R, confirmed by the High Court in R v Nguyen. The Court first asked whether it harboured a reasonable doubt about the appellant's guilt on the whole of the evidence, and then considered whether any advantage the jury enjoyed from observing witnesses could resolve that doubt.

The intersection's traffic light sequence was central to the case. There were two competing scenarios: either the deceased turned with the authority of a green right-turn arrow (in which case the appellant must have faced a red light), or the turn was made during a phase when only a round green light was displayed and no arrow governed the right turn (in which case the appellant's green light would have authorised his southbound travel). Expert evidence from the Roads and Traffic Authority about light sequencing was complex but did not expressly answer how long the "no arrow" phase lasted or whether it was long enough for the turn to have been completed within it.

Macfarlan JA concluded that the evidence was consistent with the deceased having turned without an arrow, in a situation where both drivers held green lights and the collision was caused by the appellant failing to give way, not by running a red. His Honour noted that a sober driver proceeding past stationary vehicles in adjacent lanes and through a red light was a less ordinary scenario than a right-turn accident occurring during an unprotected green phase. The Court found it could not eliminate, to the required standard, the hypothesis that the appellant held a green light.

The Court also found that the jury's advantage in observing witnesses did not explain the discrepancy. The highly technical evidence about light sequences had been given largely orally, and the Court of Criminal Appeal, with access to the transcript, was actually better placed than the jury to analyse it carefully. On that basis, the verdict was unreasonable and could not stand.

Orders Made

  • Leave granted to the appellant to appeal against his conviction under Crimes Act 1900 s 52A(1)(c).
  • Appeal allowed.
  • Conviction quashed.
  • Judgment and verdict of acquittal entered.

Key Takeaways

  • The Court of Criminal Appeal confirmed the two-step approach from M v R: first, assess whether the appellate court has a reasonable doubt; second, determine whether the jury's failure to share that doubt can be explained by its advantage in seeing and hearing witnesses.
  • A jury's observational advantage is not limited to questions of witness honesty; it can also bear on witness reliability. However, that advantage has limits where the critical evidence is highly technical and the appellate court has the benefit of a transcript for careful analysis.
  • Where two plausible factual scenarios exist and the evidence does not clearly eliminate the one consistent with innocence, a conviction resting on the less ordinary scenario may not be reasonably open to the jury.
  • After two trials and no prospect of additional Crown evidence, the Court directed a verdict of acquittal rather than ordering a third trial, reflecting the court's discretion to end proceedings in appropriate circumstances.
  • Under s 6 of the Criminal Appeal Act 1912, an unreasonable verdict is a recognised ground of appeal, though it requires leave because it does not raise a question of law alone.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6

Cases:
- M v R [1994] HCA 63; (1994) 181 CLR 487
- R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8
- Rasic v R [2009] NSWCCA 202
- Wong v R [2009] NSWCCA 101 (first appeal, not reported in full in this judgment)