Citation: El Seidi v R [2021] NSWCCA 303
Court: NSW Court of Criminal Appeal
Date: 17 December 2021
Judge(s): Brereton JA; Wilson J; Ierace J
Background
The appellant was an eighteen-year-old provisional driver who, in the early hours of 1 January 2018, was driving along Brunker Road, Yagoona, when his vehicle struck a parked utility truck. One passenger died and another suffered a traumatic brain injury. He was subsequently convicted in the District Court of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm, and sentenced to an aggregate term of five years' imprisonment with a non-parole period of three years and three months.
The Crown's case rested on evidence of speeding, failure to keep a proper lookout, and impairment from Tramadol and Diazepam detected in the appellant's blood. The appellant's defence was that he had suffered an epileptic seizure immediately before the collision, raising the question of whether his driving at the time of impact was involuntary. Contested expert evidence was called on both sides: the Crown's expert considered a seizure possible but unlikely, while the defence expert considered post-accident observations consistent with a seizure.
The sole ground of appeal was that the trial judge misdirected the jury on the onus and standard of proof concerning involuntariness. The Crown conceded the error.
Legal Issues
- Whether the trial judge correctly directed the jury on which party bore the onus of proving that the appellant's driving was voluntary or involuntary at the time of impact.
- Whether the misdirection occasioned a miscarriage of justice sufficient to warrant the convictions being quashed.
- Whether bail should be granted pending retrial.
Decision
The Court of Criminal Appeal found that the trial judge's oral directions to the jury were incorrect and confusing in a material respect. The directions suggested that, before the jury could proceed to consider whether the appellant was driving involuntarily, they first had to be satisfied beyond reasonable doubt that he had suffered an epileptic seizure. That formulation effectively reversed the onus of proof: it was for the Crown to prove beyond reasonable doubt that the appellant was driving voluntarily at the time of impact, not for the appellant to establish involuntariness to any standard.
The written directions provided to the jury compounded the problem. They directed the jury to consider the involuntariness path only "if the Accused was driving involuntarily," without clearly articulating that the Crown bore the burden of disproving involuntariness. The oral directions, in using the phrase "if you are satisfied beyond reasonable doubt that he lost control of the car because he lost consciousness by suffering a seizure," reinforced the erroneous impression that the defence bore that burden.
The Crown accepted that there was a real prospect the jury had not properly considered whether the Crown had proven beyond reasonable doubt that the appellant was not driving involuntarily due to an epileptic seizure. Given that concession, the Court found that a miscarriage of justice had occurred. Leave to appeal was granted, the convictions and sentence were quashed, and a retrial was ordered.
On the question of bail, the Court noted the appellant had no prior convictions, was not on bail or parole at the time of the offending, and that the Crown did not oppose bail. Bail was granted subject to conditions.
Orders Made
- Leave to appeal granted.
- Appeal allowed.
- Convictions and sentence imposed in the District Court quashed.
- Retrial ordered; matter listed for arraignment in the District Court.
- Bail granted pending retrial, subject to the following conditions:
- Daily reporting to Bass Hill Police Station between 6:00am and 8:00pm.
- Residence at a specified Sefton address, not to be left except in the company of the appellant's father, and not to be left at all between 8:00pm and 6:00am.
- Good behaviour.
- No contact with, or proximity to, specified persons connected to the victims (except through a legal representative).
- No consumption of non-prescribed drugs.
- Not to drive any vehicle or operate any machinery, or be seated in the front seats of any vehicle.
- Appellant's father to provide a $4,000 surety.
Key Takeaways
- Where a defendant raises involuntariness (such as an epileptic seizure) as an answer to a driving charge, the onus lies on the Crown to disprove involuntariness beyond reasonable doubt, not on the accused to establish it.
- Directing a jury in terms suggesting they must be "satisfied beyond reasonable doubt" that the accused suffered a seizure before considering the involuntariness pathway misallocates that burden and constitutes a misdirection.
- A miscarriage of justice arises where there is a real prospect that a misdirection on onus of proof caused the jury not to properly consider a live issue going to guilt, even if the Crown did not intend to reverse the burden.
- The Court of Criminal Appeal confirmed that where the Crown itself concedes both the misdirection and the resulting miscarriage of justice, the appropriate remedy is to quash the convictions and order a retrial rather than enter a judgment of acquittal.
- Under the Bail Act 2013 (NSW), bail following a successful conviction appeal may be granted on conditions tailored to the circumstances, including restrictions on driving where the retrial concerns driving offences.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 18, 22
- Crimes Act 1900 (NSW), s 52A (dangerous driving occasioning death and grievous bodily harm)
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases:
- Hadchiti v The Queen (2016) 93 NSWLR 671; [2016] NSWCCA 63
- Lin v Tasmania (2015) 252 A Crim R 64; [2015] TASCCA 13
- R v Gillett [2005] NSWDC 20
- R v Holman [1997] 1 Qd R 373; [1996] QCA 262