By Casey Neill
The Court of Appeal has refused a Noble Park truck driver’s request to appeal against his conviction over a fatal collision that killed five people in Catani.
The crash and subsequent fire set the car ablaze.
A man, 37, a woman, 33, their six-year-old daughter and two-year-old son, all from Poowong, died. A nine-year-old boy survived.
Justices Robert Redlich, David Beach and Emilios Kyrou delivered the verdict to Jobandeep Gill on Friday 4 November.
He was convicted of four charges of culpable driving causing death on 5 November last year, and the following day sentenced to 10 years’ imprisonment with a six and a half year non-parole period.
Gill sought permission to appeal the conviction on the grounds that the “judge erred in admitting the applicant’s lies at the scene of the collision”.
The Court of Appeal decision said Gill gave two accounts at the scene of what caused the collision between his truck and a sedan at Caldermeade and Heads roads on 28 February 2014.
“The applicant failed to give way at the intersection and four of the five occupants of the other vehicle suffered fatal injuries,” the decision said.
“Essentially, the applicant gave two versions.
“First, that he was slowing down as he approached the intersection but then his gears ‘got jammed’.
“Secondly, that he stopped at the intersection, checked to see if it was clear, started crossing the intersection and then his gears got jammed.”
“The applicant does not dispute that he told lies about the circumstances of the collision to various people who attended the scene,” the Court of Appeal decision said.
“The applicant submitted, however, that the lies were irrelevant and that the admission of them into evidence caused a substantial miscarriage of justice.
“The short answer to the applicant’s proposed ground of appeal is that the evidence of what he said at the scene of the collision was relevant, and therefore admissible, having regard to the defence he conducted at trial.
“In order to determine whether or not the applicant was guilty of gross negligence, it was relevant to know what the applicant said about the circumstances of the collision at the scene.”
The Justices found that “at no time did the applicant’s trial counsel take any objection to the prosecutor relying upon evidence of the applicant’s lies at the scene” and “the failure by the applicant’s trial counsel to take an objection was an informed forensic decision made by him”.
“In his final address, the applicant’s counsel used the existence of the applicant’s lies as a reason for not calling his client to give evidence,” the judgement said.
The Justices found that the County Court judge directed the trial jury “to determine the applicant’s guilt only by reference to ‘what he did and the way he did it’, and not to rely upon the lies told by the applicant at the scene”.
“This part of the charge was, if anything, unduly favourable to the applicant, if, as is likely, the jury treated this as a direction that they should disregard entirely the statements made at the scene of the collision,” the judgement said.
“The jury were well entitled to act upon the applicant’s statements at the scene that he recognised he was approaching an intersection which was controlled by a stop sign.”
