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Court of Criminal Appeal 16 December 2002

R v Sullivan

[2002] NSWCCA 505

Traffic & driving
CRIMINAL LAW CONVICTION APPEAL S 20(2) EVIDENCE ACT COMMENT MADE BY TRIAL JUDGE ACCUSED NOT GIVING EVIDENCE APPLICATION OF PROVISO.

Citation: Sullivan v R [2002] NSWCCA 505
Court: NSW Court of Criminal Appeal
Date: 16 December 2002
Judge(s): Giles JA, James J, Hidden J

Background

The appellant was convicted in the District Court on three counts of dangerous driving occasioning grievous bodily harm following a collision on Richmond Road between Blacktown and Richmond. The Crown alleged that the appellant had been racing another driver over several kilometres, and that his attempt to change lanes without adequate clearance directly caused a chain-reaction crash injuring occupants of two other vehicles.

The appellant did not give evidence at trial. In a recorded police interview played to the jury, he admitted he had tried to change lanes but claimed he had not seen the other vehicle and acknowledged partial fault for failing to check he had clearance.

The trial proceeded as a joint trial with the other driver, Browning, against whom the judge directed acquittals at the close of the Crown case. The appellant was convicted on all three counts and appealed.

  • Whether evidence of the appellant's driving in the two to three kilometres before the collision was admissible, or too remote and insufficiently connected to the driving at the time of the crash
  • Whether the trial judge made an impermissible comment under s 20(2) of the Evidence Act by suggesting a reason an accused might not give evidence is that doing so could fill gaps in the Crown case
  • Whether, if that comment was improper, the proviso under s 6(1) of the Criminal Appeal Act should be applied so that no substantial miscarriage of justice occurred

Decision

Ground 1: Admissibility of earlier driving evidence

The Court of Criminal Appeal rejected the argument that evidence of the appellant's driving before the Breakfast Road intersection was too remote. The earlier driving was directly relevant on multiple bases: it formed part of the Crown's case that a continuous course of competitive driving culminated in the crash; it explained why other road users were watching and could give detailed evidence of the appellant's driving at the moment of collision; and it tended to rebut the appellant's claim in his interview that he had no awareness of Browning's vehicle when he moved lanes.

Ground 2 (not reproduced in the provided text)

The judgment indicates a second ground of appeal was addressed but the reasoning is not available in the excerpted text.

Ground 3: The trial judge's comment on silence

James J found that the trial judge's remark that an accused might not give evidence because "he might not want to fill in some gaps" was an impermissible comment. Such a remark crossed from permissible direction (telling the jury it could not use silence to fill gaps in the Crown case) into impermissible territory (implying that an accused might stay silent precisely because giving evidence would reveal guilt or bolster the prosecution). James J upheld this ground.

Application of the proviso

Despite upholding the third ground, the Court applied the proviso and dismissed the appeal. The part of the Crown case based on the lane-change manoeuvre was very strong: the appellant had himself admitted in his police interview that he changed lanes without adequate clearance. The balance of the trial judge's directions on silence were correct and, taken together, constituted a firm direction against drawing adverse inferences from the appellant's silence. No substantial miscarriage of justice had occurred.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • A trial judge's remark that an accused might avoid the witness box to prevent filling gaps in the Crown case constitutes an impermissible comment under s 20(2) of the Evidence Act, even when the remainder of the judge's directions on silence are correct.
  • The distinction drawn here is precise: directing the jury that it cannot use an accused's silence to fill gaps in the Crown case is permissible and desirable; suggesting that the accused's silence might be motivated by awareness that his evidence would fill those gaps is not.
  • Under s 6(1) of the Criminal Appeal Act, an appeal will not succeed on the basis of such a misdirection where the Crown case is sufficiently strong and the error is unlikely to have affected the verdict. The court assessed the strength of each side's case, the nature of the error, and whether the appellant lost a real chance of acquittal.
  • Sufficient connection existed between driving occurring several kilometres before a collision and the driving at the moment of impact to render the earlier conduct admissible, particularly where it formed part of a continuous course of conduct and explained why witnesses were paying attention.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an accused's own admissions in a recorded police interview can form a very strong foundation for applying the proviso when the error at trial is unlikely to have made a material difference.

Legislation and Cases Referenced

Legislation
- Evidence Act (NSW), s 20(2) (comment on accused's failure to give evidence)
- Crimes Act (NSW), s 51A(3)(c) (dangerous driving occasioning grievous bodily harm)
- Criminal Appeal Act (NSW), s 6(1) (proviso against allowing appeal where no substantial miscarriage of justice)

Cases
- R v Horvath (1972) VR 533 (Full Court of the Supreme Court of Victoria, cited by appellant on remoteness of evidence; not followed on the facts)