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Court of Criminal Appeal 28 April 2017

Severino v R

[2017] NSWCCA 80

Traffic & driving
CRIMINAL LAW CONVICTION APPEAL ADMISSIBILITY OF REPRESENTATIONS CRIMINAL APPEAL RULES R 4 NO MISCARRIAGE OF JUSTICE SHOWN

Citation: Severino v R [2017] NSWCCA 80
Court: Court of Criminal Appeal, NSW
Date: 28 April 2017
Judge(s): Payne JA; Campbell J; Wilson J

Background

In the early hours of 9 April 2014, a Toyota Corolla travelling on Mona Vale Road near Terry Hills lost control, rolled multiple times, and ejected both occupants. The passenger, Ms Kaleigh Fryer, died at the scene. The driver had a blood-alcohol concentration of approximately 0.170 grams per 100 millilitres and the car had been travelling at 105km/h in a 90km/h zone.

The sole question at trial was whether the applicant was the driver. There were no eyewitnesses to the crash itself. The prosecution relied on statements the applicant made to bystanders, paramedics, and police at the scene, including "I was the driver", "I don't want to incriminate myself", and a remark that "his mates told him he was right to drive". The prosecution also placed circumstantial evidence before the jury.

A jury convicted the applicant of aggravated dangerous driving causing death under s 52A(2) of the Crimes Act 1900 (NSW). He was sentenced to a non-parole period of four years. He sought leave to appeal against the conviction only. Critically, none of the grounds raised on appeal had been the subject of any objection or submission by his senior counsel at trial, which meant leave was required under r 4 of the Criminal Appeal Rules.

  • Whether the admissions made to police were inadmissible under s 85 of the Evidence Act 1995 (NSW), because the circumstances in which they were made were likely to have adversely affected the reliability of those admissions
  • Whether the statements made to police should have been excluded under s 138 of the Evidence Act as improperly obtained evidence (the applicant was, on analysis, under arrest at the time but had not been formally cautioned or informed of his rights)
  • Whether the representations should have been excluded under s 137 of the Evidence Act because the danger of unfair prejudice to the applicant outweighed their probative value
  • Whether the admission of that evidence, without objection from trial counsel, occasioned a miscarriage of justice under s 6 of the Criminal Appeal Act 1912 (NSW)
  • Whether the prosecution improperly used the evidence to invite "consciousness of guilt" reasoning by the jury
  • Whether the trial judge was required to give a direction (commonly called an Edwards or Zoneff direction) warning the jury about the limited use it could make of any lies the applicant may have told

Decision

Admissibility under s 85 (reliability of admissions to police). The court considered the overall circumstances in which the applicant spoke to police at the crash scene, including his intoxication and possible shock, alongside the nature of his responses. Viewing the circumstances as a whole, the court was not satisfied that the reliability of the admissions was likely to have been adversely affected. The admissions were therefore not rendered inadmissible by s 85.

Exclusion under s 138 (improperly obtained evidence). The court accepted that the applicant was, in effect, under arrest when he made statements to police, even though no formal arrest had occurred, meaning the police had not complied with their obligations under the Law Enforcement (Powers and Responsibilities) Act and the Road Transport Act 2013 (NSW). The evidence had therefore been improperly obtained. However, applying the balancing exercise under s 138, the court held that the desirability of admitting the evidence outweighed the undesirability of admitting improperly obtained evidence. Exclusion was not warranted.

Exclusion under s 137 (unfair prejudice) and overall miscarriage of justice. The court found no basis for excluding any of the representations under s 137, as probative value was not outweighed by the danger of unfair prejudice. More broadly, because the applicant had not lost a real or fairly open chance of acquittal through the admission of this evidence, no miscarriage of justice was established under r 4 of the Criminal Appeal Rules.

Consciousness of guilt and the absence of an Edwards/Zoneff direction. The court examined how the prosecution actually used the evidence at trial. It concluded that the prosecution had not invited the jury to reason that the applicant's statements showed a consciousness of guilt, nor had it suggested he had lied. The Crown's purpose was to demonstrate that the applicant was capable of understanding questions and providing coherent responses, bearing on the reliability of the statements as a whole. Because the prosecution never put the case on a lies basis, no Edwards or Zoneff direction was required. The court also noted that an experienced defence senior counsel had made a forensic choice not to raise this issue, a choice the court considered at least open and possibly well-judged in the circumstances.

Orders Made

  • Leave to appeal refused

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that r 4 of the Criminal Appeal Rules imposes a real threshold: an applicant who raises evidentiary objections for the first time on appeal must demonstrate an actual miscarriage of justice, not merely an arguable error.
  • Under s 85 of the Evidence Act, admissions are not automatically excluded because a defendant was intoxicated or in shock at the time they were made; the court assesses the overall circumstances to determine whether reliability was likely to have been adversely affected.
  • Where police fail to comply with formal arrest obligations, resulting in improperly obtained statements, s 138 still requires a balancing exercise rather than automatic exclusion, and the probative significance of the evidence may tip the balance in favour of admission.
  • An Edwards or Zoneff direction about lies and consciousness of guilt is only required where the prosecution has actually invited the jury to reason that way; if the Crown uses a defendant's statements solely to demonstrate coherence and reliability, no such direction arises.
  • Forensic choices made by experienced trial counsel carry weight on appeal. The court observed that the absence of an objection, or of a request for a particular direction, may reflect a deliberate tactical decision rather than a failure, and appellate courts will take that into account when assessing whether a miscarriage of justice occurred.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 52A(2)
- Criminal Appeal Act 1912 (NSW) s 6
- Criminal Appeal Rules (NSW) r 4
- Evidence Act 1995 (NSW) ss 85, 137, 138, 139
- Law Enforcement (Powers and Responsibilities) Act ss 11, 14, 201
- Road Transport Act 2013 (NSW) s 177

Cases
- ARS v R [2011] NSWCCA 266
- Edwards v R (1993) 178 CLR 193
- IMM v The Queen (2016) 257 CLR 300
- Kelly v The Queen (2004) 218 CLR 216
- Pemble v The Queen (1971) 124 CLR 107
- Perish v R (2016) 92 NSWLR 161
- R v Clarke (1997) 123 A Crim R 506
- R v Esposito (1998) 45 NSWLR 442
- R v Horton (1998) 45 NSWLR 426
- R v Kaddour (2005) 156 A Crim R 11
- R v Naa (2009) 76 NSWLR 271
- R v Phan (2001) 35 NSWLR 480
- R v Ul-Haque (2007) 177 A Crim R 348
- The Queen v GH (2000) 105 FCR 419
- Zoneff v R (2000) 200 CLR 234