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7
Court of Criminal Appeal 6 March 2001

R v Bozzola

[2001] NSWCCA 8

Also reported as 122 A Crim R 453
Traffic & driving
PROVISO TO S6 OF THE CRIMES ACT

Citation: R v Bozzola [2001] NSWCCA 8
Court: New South Wales Court of Criminal Appeal
Date: 6 March 2001
Judge(s): Giles JA, James J, Hulme J

Background

The appellant was a truck driver convicted in the District Court on two charges under s 52A of the Crimes Act arising from a collision on the Newell Highway near Narrabri on 30 May 1995. He was driving a Mack prime mover northbound when it struck the rear of a stationary Kenworth truck that had stopped ahead of road works. A car travelling behind the appellant's truck then crashed into the rear of his vehicle, killing the male driver and seriously injuring the female passenger.

The only live issue at trial was whether the appellant had been driving in a dangerous manner at the time of the impact. The appellant also relied on a statutory defence under s 52A(8) of the Crimes Act, arguing the death and grievous bodily harm were not attributable to his manner of driving. The jury rejected both arguments and returned guilty verdicts on both counts.

Following conviction, the appellant was sentenced to two years' imprisonment with a minimum term of one year on the first count, and a fixed term of six months on the second count, both commencing from 16 February 2000. He appealed against his conviction.

  • Whether the trial judge gave erroneous directions to the jury in accordance with the principles in RPS, by creating a risk of inverting the onus of proof through comments about matters the appellant had not addressed in evidence
  • Whether any error in those directions was sufficiently serious to warrant allowing the appeal, or whether the proviso to s 6 of the Crimes Appeal provisions should be applied on the basis that no substantial miscarriage of justice had occurred

Decision

James J (with whom Giles JA and Hulme J agreed) found that the trial judge had given impugned jury directions that mirrored the error identified in RPS. Those directions risked the jury reasoning that the appellant was more likely to be guilty because he had not come forward to address certain matters, thereby inverting the onus of proof. The ground of appeal on this basis was established.

However, James J concluded that the error was not sufficiently significant in the context of this trial to constitute a radical or fundamental defect. The matters singled out in the impugned directions were, in substance, not genuinely in dispute at trial. The appellant's log book entries and interview answers were demonstrably inconsistent with formal admissions he had made, and the evidence that he had consumed drugs was admitted by certificate without objection or challenge.

Given that there was no real prospect of the jury reasoning in a manner that inverted the onus of proof on those matters, the error carried little practical weight in the overall trial. James J determined the proviso should be applied: the error did not give rise to a substantial miscarriage of justice, and the appeal against conviction was dismissed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a flawed jury direction does not automatically warrant a new trial where the error had no realistic capacity to affect the verdict.
  • The proviso to s 6 of the Crimes Act was applied because the matters affected by the erroneous directions were not genuinely in dispute at trial, removing any real risk that the jury had reasoned improperly against the appellant.
  • A conviction under s 52A of the Crimes Act requires proof that the accused was driving in a dangerous manner at the time of the impact; where this is the only contested element, the strength of the uncontested evidence is relevant to whether a jury direction error warrants intervention.
  • Where a defendant's own admissions and unchallenged certificate evidence effectively resolve the disputed matters, the court may find that erroneous directions on those matters lacked any practical significance.
  • No error was established that rose to the level of a radical or fundamental defect depriving the appellant of a proper trial, which was the threshold the court applied before declining to invoke the proviso.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A (dangerous driving occasioning death or grievous bodily harm)
- Crimes Act 1900 (NSW), s 52A(8) (statutory defence)
- Proviso to s 6 of the Crimes Appeal provisions (no substantial miscarriage of justice)

Cases:
- RPS (cited in relation to the risk of inverting the onus of proof through adverse jury directions on matters not addressed by the accused)