Dean Girdler v The Crown
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOOPER,MR JUSTICE RAMSEY |
| Judgment Date | 05 November 2010 |
| Neutral Citation | [2010] EWCA Crim 2775,[2009] EWCA Crim 2666 |
| Docket Number | Case No: 200904128 B2,No: 201001718/A3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 05 November 2010 |
[2009] EWCA Crim 2666
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM the Crown Court sitting at Kingston on Thames
Her Honour Judge Matthews QC
T20087418
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hooper
Mr Justice Langstaff
and
Mr Justice Wyn Williams
Case No: 200904128 B2
Mr Charles Royle for the Appellant
Mr Simon Connolly for the Respondent
Hearing date: 25 November 2009
This appeal raises the issue of what directions should be given to the jury when a defendant charged with causing death by dangerous driving in one count submits that he did not cause the death of a person, but that a driver in another vehicle, whose death the defendant is also said to have caused in another count, did. Lawyers have traditionally used the rubric "novus actus interveniens" to describe the issue raised in this case. We shall use those words or translate them as new and intervening act or event.
The appeal also raises the issue of whether, in these circumstances, the verdicts on the two counts would have to be the same.
On 22 July 2009 in the Crown Court at Kingston-upon-Thames (Her Honour Judge Matthews QC) the appellant was convicted unanimously of causing the death by dangerous driving of Mr Preston Trewick, count 1. The jury were unable to reach a verdict on count 2, causing the death by dangerous driving of Catherine Cunningham. A retrial on count 2 has been ordered by the Crown Court.
At the conclusion of the hearing we announced that we were allowing the appeal, quashing the conviction and ordering a retrial. Mr Royle accepted that the retrial which we have ordered would be heard together with the retrial which the Crown Court has ordered.
Because we are ordering a new trial, it is not necessary to go into the facts in any detail. The unchallenged case was that the appellant's vehicle collided with a black taxi cab driven by Mr Preston Trewick at shortly after midnight on an unlit stretch of the west bound A3. There was an issue as to whether both rear lights of the taxi were illuminated (not an issue, however, about which the judge was to give specific directions). The weather was clear and the road damp. At the point of the collision the west bound A3 consists of three lanes with a slip road joining the A3, making four lanes. There is also a hard shoulder. The jury found, contrary to the appellant's case, that he was driving dangerously.
The collision propelled the taxi into the fast lane leaving it broadside on to the traffic going in the same direction. There was an issue as to how visible the taxi was to oncoming traffic. It was accepted that Mr Trewick was alive and moving at this time. Following the collision some cars passed the taxi, with or without difficulty, and some at least stopped and displayed hazard lights. The appellant's car was also there. There was debris in all three lanes. Not long after the collision between the appellant's car and the taxi and whilst the taxi remained broadside in the fast lane, the car which Catherine Cunningham was driving collided with the taxi killing both her and Mr Trewick. Samples of Catherine Cunningham's blood showed that it contained 55 milligrams of alcohol in 100 millilitres, less than the legal limit.
As to the cause of the death of Mr Trewick and Catherine Cunningham the defence case was, in the words of the judge when summing up the case to the jury:
But what the defence say – and you'll clearly have to think about it carefully – is that other drivers managed to steer round the taxi in their path and it was the fact that Miss Cunningham did not manage to steer round the taxi in her path that was the cause of the deaths. You'll have to give this careful consideration, and you'll be looking at the time, the circumstances, the location, what other witnesses have said about the unexpectedness of coming on the scene and finding that in front of them. The prosecution word used on Friday was the mayhem in front of them. But you're going to have to grapple with the fact that some drivers did escape colliding with the taxi, at least in the way that Miss Cunningham did, and consider what the reason and the explanation for that is. I remind you the defence have said that Miss Cunningham was shown to have had something to drink but was certainly not over the drink/drive limit, but that her driving, her reactions, may have been impaired. It may be that those who were passengers in vehicles were able to take on board more of what was in front of them than drivers who told you that they were distracted by the, what was going on to the left of the scene with the Audi and its lights flashing. So all those kind of considerations you're going to have to take on board when considering where the cause lies.
It follows that the defence case was that Miss Cunningham should have seen what the other drivers saw and that she was therefore solely responsible for the accident and for the death of Preston Trewick and herself. It seems likely that at least some members of the jury decided that she was or may have been responsible for her own death otherwise the jury would have convicted on both counts.
Mr Connolly accepts that there was evidence that she and not the appellant was responsible for both deaths such that the issue had to be left to the jury and appropriate directions given. Mr Connolly, unsurprisingly, submitted that the judge should direct the jury that they could not as a matter of law come to different verdicts. The judge accepted that it was highly unlikely that the jury could come to different verdicts but decided, with the concurrence of Mr Royle, not to give the jury the direction which Mr Connolly was seeking. Mr Royle now agrees with Mr Connolly.
The judge directed the jury that they "must consider the case for and against the defendant on each of those counts separately".
Mr Connolly submitted that the judge gave the appropriate directions to the jury to apply when considering the defence case on causation. She did so, he submits, in the passage set out in paragraph 6 above and in her general direction on causation in which she said:
If you are sure that the driving was dangerous, then go on to consider whether that caused the deaths in Count 1 of Mr Trewick and in Count 2 of Miss Cunningham. As I've said, and it's on the handout, you do not have to be sure that the dangerous driving was the principal or substantial cause of the death, as long as you are sure that there was something more than a slight or trifling link.
Mr Connolly rightly did not dispute that this passage by itself was insufficient guidance for the jury when the issue of novus actus interveniens is raised. A person's driving could have caused the death of another applying this test albeit that there was a clear novus actus interveniens.
Mr Connolly accepted that a further direction was necessary to guide the jury about this issue. He submitted that the passage set out in paragraph 7 above was sufficient. We do not agree. It is not enough, in a case of this kind, to say what the defence case is without giving the necessary legal directions for resolving the issue.
The jury sent a note after about a day and a half from the start of their deliberations. The note read:
Please can we have paragraph four, the last paragraph of the legal directions, clarified?"
The fourth paragraph read:
You do not have to be sure that his dangerous driving was the principal or substantial cause of death, as long as you are sure that it was a cause and that there was something more than a slight or trifling link.
The matter was discussed with counsel. Mr Royle submitted to the judge unsuccessfully (as he had earlier before the start of the summing up) that she should direct the jury in accordance with Skelton [1995] Crim LR 635 (CA). The facts of that case have some similarity with the facts in the present case. The dangerous driving in that case consisted of driving an unroadworthy lorry on a motorway. The hand brake system was activated due to lack of pressure and the vehicle came to a halt in the near side lane of the motorway. A number of vehicles avoided the lorry but 12 minutes later another lorry crashed into the stranded lorry and the driver, S, was killed. The appellant was convicted of causing death by dangerous and driving. It was submitted on appeal that the danger in the driving was spent by the time that S was killed. Sedley J giving the judgment of the court said that although there may come a point in which the appellant's driving was too remote, that point had not been reached. Sedley J said, in a passage relied upon by Mr Royle, that the dangerous driving must have played a part, not simply in creating the occasion of the fatal accident but in bringing it about. Mr Royle told the judge that Skelton had been approved in Barnes [200] EWCA Crim 2726; [2009] RTR 21. We shall look at Barnes a little later.
Mr Connolly opposed the submission that the judge should direct the jury in accordance with Skelton on the grounds that such a direction would mislead the jury and lead to a wrongful acquittal. The judge agreed with Mr Connolly.
After reminding the jury of the contents of the note and the fourth paragraph, the judge said this:
The prosecution do not have to make you sure that it was his driving which literally killed them. By that I mean that it was his car that caused the injuries. They don't have to make you sure about that. But they do have to make you sure that it was the manner of his...
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