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Court of Criminal Appeal 28 September 2016

Bushby v R

[2016] NSWCCA 205

Assault & violenceTraffic & driving
CRIMINAL LAW CONVICTION APPEAL IDENTIFICATION EVIDENCE POST OFFENCE CONDUCT LIES

Citation: Bushby v R [2016] NSWCCA 205
Court: NSW Court of Criminal Appeal
Date: 28 September 2016
Judges: Gleeson JA at [1]; Price J at [2]; Hidden AJ at [99]

Background

The appellant was convicted after a jury trial in the District Court of dangerous driving causing grievous bodily harm and failing to stop after an impact causing grievous bodily harm. The charges arose from an incident on 19 October 2013, when a pedestrian was struck by a Holden Calais at a pedestrian crossing in Maroubra, suffering a serious brain injury, a fractured knee, and multiple lacerations. The parties agreed at trial that the vehicle in question was registered to the appellant.

The central dispute was not whether the collision occurred, but who was driving the car at the moment of impact. The appellant maintained she was not driving. Her friend, Louise Bodeker, had been seen driving the car away from a nearby beach shortly before the collision.

The Crown's case was that the appellant and Bodeker had swapped driving positions between leaving the beach and the moment of impact. The appellant appealed her convictions on the ground that the jury's verdict was unreasonable and could not be supported by the evidence.

  • Whether the jury's verdicts on both counts were unreasonable and unable to be supported by the evidence, applying the principles from Libke v R (2007) 230 CLR 559
  • Whether the Crown had established beyond reasonable doubt that the appellant, rather than Bodeker, was the driver of the vehicle at the time it struck the pedestrian
  • Whether the jury was entitled to rely on identification evidence, post-offence conduct, and lies told to police as consciousness of guilt

Decision

Price J (with whom Gleeson JA and Hidden AJ agreed) dismissed the appeal, finding it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on both counts.

The court reviewed the sequence of events leading to and following the collision. Police officers who had spoken to the appellant at the beach shortly before the impact gave evidence about her appearance and behaviour, and identified her as the front passenger when the car departed. Bodeker herself gave evidence that the appellant had been driving at the time of the collision.

The court treated the appellant's conduct after the offence as significant circumstantial evidence. Her denial to police that she knew anything about a collision, her racially offensive claim that an unknown person had been driving, her statement "I'm not ratting on them", and her subsequent report to the Police Assistance Line and attendance at Maroubra Police Station three days later to suggest the car had been stolen were all capable of being treated by the jury as deliberate lies reflecting a consciousness of guilt.

Hidden AJ acknowledged that the prosecution case was "not without its problems" but agreed that, examining the evidence as a whole, the difficulties did not warrant a conclusion that the jury should have harboured a reasonable doubt. The court found it was not unreasonable for the jury to accept Bodeker's evidence as to who was driving at the time of impact.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the applicable test is whether it was open to the jury to be satisfied beyond reasonable doubt of guilt, not whether a different verdict was also reasonably open.
  • Post-offence conduct, including lies told to police and steps taken days after an incident, can constitute circumstantial evidence of consciousness of guilt capable of supporting a jury's finding on identity.
  • A jury is entitled to accept or reject a witness's evidence in whole or in part, and was here entitled to accept a co-occupant's testimony identifying the driver even where that witness had herself driven the vehicle at an earlier point in the same journey.
  • The existence of difficulties or weaknesses in a Crown case does not in itself render a guilty verdict unreasonable, provided the whole of the evidence, assessed together, could rationally support the verdict beyond reasonable doubt.
  • Under ss 52A and 52AB of the Crimes Act 1900 (NSW), the identity of the driver at the precise moment of impact is a critical element the Crown must establish; agreed facts about the vehicle involved do not resolve that question.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(3)(c) (dangerous driving causing grievous bodily harm), 52AB(2) (failing to stop after impact causing grievous bodily harm)
- Evidence Act 1995 (NSW), ss 165 (unreliable evidence direction), 191 (agreed facts)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 14 (form of demand to identify driver)

Cases:
- Libke v R (2007) 230 CLR 559; [2007] HCA 30
- Sio v R [2015] NSWCCA 42