Phair, R. v

Factual and Procedural Background

This appeal arises from the conviction of the Appellant on 23 September 2019 for nine offences related to a fatal car chase following a failed drug transaction. The offences included causing death and grievous bodily injury by dangerous driving, driving while unlicensed and uninsured, and drug supply offences involving cocaine. The incident occurred on 7 October 2017 when the Appellant, driving a vehicle owned by the deceased, lost control and crashed after being pursued by another driver, resulting in the death of the deceased passenger and serious injury to another passenger.

The pursuit was triggered by a failed cocaine transaction between the Appellant and another man, who pursued the Appellant in a separate vehicle, striking the Appellant’s car multiple times during the chase. The Appellant was seriously injured and hospitalised, during which he sent messages referring to the incident. Both the Appellant and the other man were convicted of various offences related to the incident and drug dealings, with the Appellant receiving an 11-year custodial sentence.

This appeal challenges the safety of the convictions and the directions given at trial, including the admission of bad character evidence, limitations on the defence of duress of circumstances, hearsay evidence, and the refusal to leave self-defence to the jury.

Legal Issues Presented

1. Whether the trial judge erred in admitting bad character evidence relating to the Appellant’s Facebook messages and subsequent convictions.
2. Whether the trial judge erred in limiting the defence of duress of circumstances by including a voluntary association limitation and whether this limitation was properly left to the jury.
3. Whether the trial judge erred in admitting hearsay evidence and in refusing to grant a no case to answer direction on the drug offences.
4. Whether the trial judge erred in declining to leave self-defence as a defence to the jury.

Arguments of the Parties

Appellant's Arguments

• The admission of bad character evidence, particularly Facebook messages and subsequent convictions, was improper and prejudicial.
• The limitation on the defence of duress by circumstances, specifically the voluntary association limitation, was incorrect in law or lacked evidential basis.
• The hearsay evidence of a prosecution witness was inadmissible due to procedural non-compliance and surprise to the defence, warranting a discharge of the jury on drug offence counts.
• The trial judge should have left self-defence as a defence to the jury.

Respondent's Arguments

• The bad character evidence was properly admitted to correct a false impression and was relevant to issues between the parties.
• The voluntary association limitation on the defence of duress applies equally to duress of circumstances, supported by binding authority and public policy considerations.
• The hearsay evidence was implicitly agreed to by the defence, no objection was raised at trial, and sufficient evidence existed to support a case to answer on the drug offences.
• There was no factual basis for self-defence; the proper defence was duress of circumstances, and the trial judge correctly exercised discretion in leaving only that defence to the jury.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court applied the established appellate test from R v Pollock focusing on whether the convictions were safe without retrying the case or speculating on jury influence.

Regarding bad character evidence, the Court accepted the trial judge’s discretion in admitting Facebook messages to correct a false impression created by the Appellant’s emotional testimony. The Court found the admission of subsequent convictions relevant to the defence of duress, specifically the voluntary association limitation, and concluded that the trial judge correctly admitted this evidence and adequately directed the jury.

On the defence of duress of circumstances, the Court examined binding authority, notably R v Hasan, to conclude that the voluntary association limitation applies equally to duress by threats and duress of circumstances. The Court found the limitation properly left to the jury given sufficient evidence that the Appellant voluntarily associated with others engaged in criminal activity and foresaw or ought to have foreseen the risk of compulsion.

In relation to hearsay evidence, the Court held that the absence of an express objection and the implied agreement to its admission, coupled with supporting evidence, meant no unfairness arose. The Court rejected the submission that a no case to answer direction was warranted on the drug offences.

Lastly, the Court addressed the new ground of appeal concerning self-defence. It found no factual basis to raise self-defence as the Appellant’s conduct did not involve use of force against the pursuer, but rather an attempt to escape. The trial judge’s decision to leave only the defence of duress of circumstances to the jury was upheld as a proper exercise of discretion.

Holding and Implications

The Court DISMISSED all grounds of appeal and upheld the convictions and sentence imposed on the Appellant.

The decision affirms the trial judge’s exercise of discretion in admitting bad character evidence and directing the jury on the defence of duress of circumstances, including the voluntary association limitation. It clarifies that this limitation applies equally to duress by threats and duress of circumstances, reinforcing public policy against allowing criminal associates to evade liability by invoking duress. The ruling also confirms the principles governing hearsay evidence admission and the requirements for self-defence to be left to the jury in dangerous driving cases.

No new precedent beyond the application of existing authority was established; the Court’s ruling primarily confirms the safety of the convictions based on the facts and law as applied.