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LAW350 : Culpable Homicide not amounting to Murder

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What issues are they with the boy’s evidence? He was pretty young and I don’t know that he will remember it that well.

Can the police give evidence of what he told them or would that be hearsay? If it is would it go in anyway?

Will the police be able to lead Ken’s prior convictions under S32A?

Can we challenge the evidence about the skidmarks from Sargent Whittle?  I acted for him years ago when he was on a disciplinary charge for drinking on duty (Williams is pretty dull). I figure that if we cannot stop his testimony I can discredit him as a drunk anyway but it would be better if we could stop him testifying at all.



Our Client Ken Daon, a truck driver who was involved in a motor vehicle accident dated 23rd October 2015 which resulted in the death of Mellisa Orr. Mellisa was a long-distance truck driver who was at the time of the incident driving between the stretch from Perth to Albany. Her truck collided with Ken’s truck 35 km south of Williams on the Albany Highway. The other truck was driven by Ken Daon and it pulled up from Arthur River by loading large consignment of wheat. The police were initially unable to obtain a statement from Ken as he was too distraught following the accident. However, when the police came to obtain his version of the events that transpired on that fateful day, his legal counsel prevented him from divulging too much information. Being a representative of SBM Legal we have been requested to act on behalf of Ken Daon who might be facing charges of involuntary manslaughter. 

Issues arising out of the boy’s evidence:

The most important issue is the admission of the statements made by the boy in a court of law. The boy was in a traumatised condition when he recorded his statement with the police. Moreover, he was only 6 years old during the time when he witnessed the accident and this has a deep and everlasting impact on his mind. If the boy is brought to the court as a witness for the case, it is highly unclear whether he would be able to remember everything that happened on that day. There is a lot of doubt and apprehension about whether the boy would be able to present all the facts in a correct and truthful manner that was recorded earlier by the police as evidence. Any mismatch between the two statements and the court would be able to dismiss the evidence terming it inadmissible. The boy could be considered to be a person of defective intellect as was witnessed in Toohey v Metropolitan police Commissioner [1965] AC 595. In the Toohey v Metropolitan police Commissioner [1965] AC 595 the jury held that it was eventually up to the judge to decide whether the witness is able to understand the nature of an oath and if he/she is able to admit to his testimony (Toohey v Metropolitan police Commissioner [1965] AC 595).

Possibility of the police providing evidence of what he told them or the evidence being considered hearsay:

The police in their initial investigation have found that the eye witness accounts provided by the boy were fairly cogent. This police arrived at this conclusion by obtaining the other eye witness account in the case (the boy’s father) which was also found to be matching with the boy’s statement. It eventually depends on the police team instigating the case whether they have recorded the statements made by the boy and eventually want to present in a court of law. The aspect of hearsay would not arise in this case as there was not to many eye witness accounts who would have provided their own versions of the incident to the investigating authorities (Subramaniam V Director Of Public Prosecutions: PC 1956 - Swarb.Co.Uk, 2018). The accident took place in a highway where there was not too many people who stood witness to the events that transpired on that fateful day. Moreover, the fact that boy’s father Tony Hall was also killed in a farm accident in 2016 essentially made the boy the sole witness. The court has the liberty of deciding whether the accounts provided by the boy would be admissible as direct evidence in this case.

Possibility of the police in leading Ken’s prior convictions under S32A:

The police will be able to lead Ken’s prior convictions under S32A. According to the police records, Ken has had a dubious history in the past and this makes him a habitual offender. He was previously also involved in a case of dangerous driving which caused death. This incident occurred ten years back and in this incident his truck collide with a car which resulted in the death of four law graduates who were travelling in that car. During the trial, Ken had confessed that he was changing the cassettes in his truck when his truck suddenly drifted towards the central line in the road and eventually collided with the car. The judge at the time of announcing the verdict in the case did not consider Ken’s offence to be too serious to deserve a custodial sentence. Eventually, Ken was let away lightly with signing a good behaviour bond.  Ken had been known to over speed while driving and there were a couple of times when he had failed to stop at a stop sign. All these past records clearly indicate that Ken has not learnt from his past mistakes and this makes him a habitual offender. It is likely that Ken would be getting a harsh sentence as all the evidences are clearly stacked up against him in this case.

Possibility of evidence about the skidmarks from Sargent Whittle being challenged in the court:

The evidence about the skidmarks as found by Sargent Whittle could be challenged by the counsel representing Ken but whether or not it would be acceptable by the court remains to be seen. The counsel for Ken was previously associated with Sargent Whittle and has represented him while he was facing disciplinary charges for drinking while on duty. According to Ken’s counsel in the case, Sargent Whittle was a fool and that it would be relatively easy for them to discredit the statements made by Whittle due to the fact that he has had a past record of drinking on duty. But, in the present existing case there is no proven account of the fact that Whittle was drunk while carrying out the investigation, so it could not be proved in the courts. Moreover, in the case of Hollingham v Head (1858) 140 ER 1135 the court has clearly held that a person having once or many times in their life committed a particular act in a particular way cannot be considered to have done the same thing in the same way on another different occasions as well. Under this provision, the counsel of Ken would not be able to challenge the evidence presented by Sargent Whittle (Hollingham v Head (1858) 140 ER 1135).


Looking at the given scenario, it can be clearly stated that all the evidences are highly stacked up against Ken and he is likely to face a conviction in the case for culpable homicide not amounting to murder resulting out of careless driving. Ken’s previous history is also an important factor which further weakens his case and makes him a habitual offender. Ken has had a dubious past record in matters concerning improver driving. He was extremely lucky to have escaped severe punishment when his negligence resulted in the death of four young law graduates 10 years back. Thus, it is advisable to the counsel of Ken to consider the following:

1) The evidence brought forward in the case needs to be thoroughly evaluated in order to determine whether they could be actually admissible in a court of law. The counsel for Ken needs to clearly emphasise on the fact that there is no evidence to suggest that Ken was driving under the influence of alcohol when the accident took place.

2) There is also a lot of doubt about the fact that whether the eye-witnesses presented in the case would be able to remember the sequence of events that took place on that fateful night and present in an accurate manner or not. The counsel for Ken could challenge the eye witness accounts and cross question them in order to confuse them in their statements.

3) The fact that Mellisa was suffering from ADHD and was on medication needs to be presented as a strong and substantial before the court. In that coroner’s report, evidence has been found regarding the presence of amphetamine in Mellisa’s blood and this has been further corroborated by Mellisa’s partner. The counsel for Ken need to clearly corroborate before that courts about the possibility of Mellisa being at fault in this case and for which the accident has taken place. This would help to shift the responsibility of the accident from Ken to Mellisa and this could help Ken defend his position.     

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