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Court of Criminal Appeal 5 September 2007

R v Pisciuneri; Pisciuneri v R

[2007] NSWCCA 265

Traffic & driving
CRIMINAL LAW DRIVING IN MANNER DANGEROUS APPEAL AGAINST CONVICTION JURY VERDICT NOT UNREASONABLE CROWN APPEAL AGAINST SENTENCE APPELLATE DISCRETION.

Citation: R v Pisciuneri; Pisciuneri v R [2007] NSWCCA 265
Court: Court of Criminal Appeal, New South Wales
Date: 5 September 2007
Judge(s): Spigelman CJ, Hislop J, Harrison J

Background

The appellant was convicted by a District Court jury of driving a motor vehicle in a manner dangerous to another person, contrary to s 52A(1)(c) of the Crimes Act 1900, following a fatal collision on a rural road in Camden on 28 March 2005. The appellant's Monaro veered off the bitumen surface at a bend, overcorrected, and collided with an oncoming Kia driven by the deceased. The deceased died as a result of the collision.

The central factual dispute at trial was why the Monaro's wheels left the sealed road surface. The appellant gave evidence that he steered left to avoid the Kia, which he said had crossed onto his side of the road. The Crown contended the cause was dangerous driving, including excessive speed, inattention, or deliberate movement onto the wrong side.

Following conviction, the sentencing judge imposed a non-custodial sentence. The Crown appealed against that sentence as inadequate, while the appellant separately appealed against the conviction as unreasonable.

  • Whether the jury's verdict of guilty was unreasonable or could not be supported by the evidence
  • Whether the jury failed to give proper consideration to conflicting expert evidence on traffic accident reconstruction methodology
  • Whether the sentencing judge made a material error of fact such that the Court of Criminal Appeal should intervene and increase the sentence

Decision

On the conviction appeal, the Court applied the well-established test from M v The Queen (1994) 181 CLR 487, asking whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of guilt. The Court emphasised that the jury holds primary responsibility for determining guilt and has the advantage of seeing and hearing witnesses directly. The Court was not persuaded that the verdict was unreasonable or unsupported by the evidence.

The appellant's alternative ground, that the jury failed to give proper consideration to the competing expert evidence on accident reconstruction, was also rejected. The Court found no basis for concluding that the jury had not properly engaged with that technical evidence.

On the Crown's sentence appeal, the Court found that the sentencing judge's factual findings did not involve material error. The sentencing judge had treated the offence as falling at the lower end of the range of seriousness, characterising it as involving little more than momentary inattention or misjudgement. The Court noted that non-custodial sentences in s 52A cases are almost invariably confined to such circumstances, consistent with R v Whyte and R v Jurisic.

The Court declined to intervene in the sentence, applying the recognised constraints on Crown appeals set out in R v Wall. Those constraints include the requirement that Crown appeals be rare, that the Court maintain a lively discretion to refuse intervention even where error is shown, and that double jeopardy faced by the convicted person be taken into account. Given the offence was at the lower end of the sentencing range and the appellant had a strong subjective case, intervention was held to be inappropriate.

Orders Made

  • The appeal against conviction is dismissed.
  • The appeal against sentence is dismissed.

Key Takeaways

  • A conviction will not be disturbed on appeal merely because competing expert evidence was complex; the Court of Criminal Appeal confirmed it is the jury's role to weigh such evidence, and appellate intervention requires more than a disagreement with how that evidence was assessed.
  • Under the M v The Queen test, the relevant question is whether it was open to the jury to be satisfied beyond reasonable doubt, with full regard given to the jury's primary fact-finding function.
  • Non-custodial sentences for dangerous driving causing death under s 52A of the Crimes Act 1900 are almost invariably limited to cases involving momentary inattention or misjudgement, consistent with the guidance in R v Whyte and R v Jurisic.
  • Crown appeals against sentence face significant restraints: the Court must identify clear error, must account for double jeopardy, and retains a broad discretion to refuse to intervene even where some error is demonstrated.
  • Upholding the sentence in this case, the Court of Criminal Appeal found that the combination of a lower-end factual finding and strong subjective circumstances did not warrant appellate interference.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Crimes (Sentencing Procedure) Act (NSW)
- Road Transport (General) Act (NSW)

Cases
- Cheung v The Queen (2001) 209 CLR 1
- M v The Queen (1994) 181 CLR 487
- Markarian v The Queen (2005) 215 ALR 213
- R v Davies [2000] NSWCCA 84
- R v Isaacs (1997) 41 NSWLR 474
- R v Jurisic (1998) 45 NSWLR 209
- R v Martin (1981) 2 NSWLR 640
- R v Wall [2002] NSWCCA 42
- R v Whyte (2002) 55 NSWLR 252