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Judge’s ‘rubbish’ analogy prompts retrial

A driver’s conviction for hitting and killing an 85-year-old Victorian man in the pouring rain has been quashed on appeal because of an erroneous trial analogy about a garbage bin.

Ankur Ankur was jailed in December 2019 for up to five years and three months after being found guilty of dangerous driving causing former VFL player Patrick Deagan’s death.

Ankur argued his cruise control had malfunctioned and he tried to slow down but couldn’t when he hit a guard rail and smashed into Mr Deagan’s car in Geelong in August 2016.

Victoria’s Court of Appeal on Tuesday quashed the 32-year-old’s conviction and ordered he face retrial.

The appeal judges found County Court Judge Gerard Mullaly’s comments during the trial amounted to a miscarriage of justice.

In instructing the jury about evidence regarding the speed of Ankur’s vehicle, Judge Mullaly used the example of council bin collections.

Was it possible, the judge hypothesised, that instead of the council collecting the bins, “someone came in the middle of the night and stole my garbage and all of my neighbour’s garbage, put it in their ute and drove away”.

“I’d have to say well, it is possible but it is so very unlikely or fanciful in all the circumstances that it is not a reasonable or rational explanation for my empty bins,” the judge concluded.

Appeal Justices Phillip Priest, Stephen Kaye and Terence Michael Forrest found the garbage bin example likely gave the jury the impression the judge considered Ankur’s explanation fanciful and unreasonable.

“The implied comment by the judge was directed to the heart of the defence of the applicant to the charge against him,” the appeal judges said.

“It could not be concluded that the conviction of (Ankur) was inevitable.

“(The garbage bin comment) had the capacity to undercut the central defence relied on by (Ankur) at the trial.”

Ankur had been driving in heavy rain when he lost control of his car, rebounded off a guard rail, became airborne and careered into ongoing traffic.

Mr Deagan died 13 days later in hospital.

Ankur was stopped at the airport in 2017 on his way back to India to see his ill father.

The Court of Appeal set aside the man’s conviction and sentence, including his three-and-a-half year non-parole period.

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