Citation: Regina v Nelson [2004] NSWCCA 231
Court: NSW Court of Criminal Appeal
Date: 9 July 2004
Judge(s): Grove J, Dowd J, Sperling J
Background
The appellant was convicted in the District Court of aggravated dangerous driving causing death and aggravated dangerous driving causing grievous bodily harm. The charges arose from an incident on the M4 motorway at St Clair, where her vehicle fishtailed and overturned, killing her de facto partner and injuring one of three children travelling in the rear seat. A blood sample taken shortly after the crash showed a blood alcohol content of 0.194 grams per 100 ml, with expert evidence placing her level at no less than 0.15 at the time of impact.
The central factual contest at trial was whether the appellant was in control of the vehicle at the critical moment. She argued that her de facto partner had seized the steering wheel, meaning she was not the "driver" for the purposes of the offences. She also sought to rely on a statutory defence that the death and harm were not attributable to her intoxication.
At Nepean District Hospital, a highway patrol constable spoke to the appellant in connection with gathering details about those involved in the accident. During that conversation, after being told her partner had died, the appellant made an unsolicited remark to the effect that her ex-husband might come to the hospital "and finish what I tried to do, kill myself." The Crown relied on this statement at trial as evidence that the appellant was accepting responsibility for the crash, rather than attributing it to her partner.
Legal Issues
- Whether the admission made to the constable at hospital should have been excluded under section 90 of the Evidence Act 1995 as unfair to the appellant in the circumstances in which it was made.
- Whether the failure to exclude that evidence constituted a miscarriage of justice, notwithstanding that no objection was raised at trial.
- What standard of appellate intervention applies where no objection to the admission of evidence was taken at trial.
Decision
The Court noted at the outset that no objection to the evidence had been taken at trial and no application was made to the trial judge to exercise the discretion under section 90 of the Evidence Act 1995. Rule 4 of the Criminal Appeal Rules accordingly applied, raising the threshold the appellant needed to meet on appeal.
The Court examined section 90 notionally, considering whether the circumstances of the admission rendered it unfair to use the evidence. The appellant was distressed and intoxicated when she made the remark, and the constable had approached her in the context of gathering accident details rather than conducting a formal investigation. The Court acknowledged these as relevant factors but found them insufficient to compel exclusion. Both the appellant's distressed state and her intoxication were matters the jury could weigh for themselves when assessing the significance of the statement.
On the standard for appellate intervention, the Court held that where no objection was taken at trial, an appellant must establish that the trial judge could not reasonably have refused to exclude the evidence had the point been raised. The appellant did not reach that threshold. The Court found it had not been demonstrated that refusing exclusion would have been manifestly wrong.
Even if exclusion had been required, the Court found no miscarriage of justice would follow. The disputed remark was of relatively minor significance alongside a sequence of other statements made by the appellant at and shortly after the crash. The appellant could not demonstrate that she lost a genuine chance of acquittal by reason of the statement going before the jury.
Orders Made
- Appeal dismissed.
Key Takeaways
- Where no objection to the admission of evidence is taken at trial, the threshold for appellate intervention is high: the appellant must show the trial judge could not reasonably have refused to exclude the evidence had the objection been raised.
- Under section 90 of the Evidence Act 1995, a court may exclude an admission where it would be unfair to the accused having regard to the circumstances in which it was made, but distress and intoxication at the time of the statement do not automatically compel exclusion.
- An unsolicited remark made to a highway patrol officer gathering accident details, rather than in the course of a formal record of interview, does not by itself render admission of that statement unfair under section 90.
- Even where a ground of appeal relating to improperly admitted evidence is arguable, no miscarriage of justice arises if the disputed evidence was of minor significance relative to the other evidence adduced at trial and the appellant cannot show a lost chance of acquittal.
- In dismissing the appeal, the Court confirmed that the proviso to section 6 of the Criminal Appeal Act 1912 operates as an independent barrier where an alleged error had no material impact on the verdict.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), sections 52A(2), 52A(4), 52A(8)
- Criminal Appeal Act 1912 (NSW), section 6
- Evidence Act 1995 (NSW), section 90
- Criminal Appeal Rules, Rule 4
Cases
- R v Dutton (unreported, NSWCCA, 7 December 1990)
- Foster v The Queen (1993) 113 ALR 1
- Papakosmas v The Queen (1999) 196 CLR 297
- The Queen v Swaffield & Pavic (1998) 192 CLR 159