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Court of Criminal Appeal 17 April 2023

Al-Salmani v R

[2023] NSWCCA 83

Traffic & driving
CRIMINAL PROCEDURE TRIAL JURY WHETHER DENIAL OF PROCEDURAL FAIRNESS WHERE MULTIPLE JURORS DISCHARGED WHERE LENGTH OF TRIAL PROLONGED

Citation: Al-Salmani v R [2023] NSWCCA 83
Court: Court of Criminal Appeal
Date: 17 April 2023
Judges: Bell CJ (with Walton J and Davies J agreeing)

Background

The appellant was convicted by jury on 20 December 2019 of three counts of aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900 (NSW). He was sentenced to 12 years' imprisonment with a non-parole period of 8 years. The Crown's case was that on 18 January 2017 the appellant drove dangerously while under the influence of methylamphetamine, causing his vehicle to enter a "critical speed yaw" (a loss of traction resulting in the vehicle spinning out of control), cross into oncoming traffic, and collide with another vehicle, killing all three of its occupants.

The appellant's defence was that a passenger had suddenly applied the handbrake, causing the collision. Images taken after the crash showed the handbrake engaged, but the passenger denied applying it. The Crown's crash reconstruction expert, Mr Lennon, gave opinion evidence that the handbrake had not been engaged prior to the collision, and speculated during cross-examination that a first responder may have applied it afterwards. The Crown was then permitted to cross-examine the appellant about whether he had applied the handbrake post-collision, which he denied.

The trial, originally listed for two weeks, ran for nearly six weeks and concluded just before Christmas. Several jurors raised concerns about pre-existing commitments, two were discharged, sitting hours were extended, and the jury ultimately delivered its verdict after deliberating for less than two hours. Defence counsel applied to discharge the jury on the basis of undue time pressure, but the trial judge declined to rule on the application at that stage and instead directed the jury it should not feel pressured.

  • Whether the Crown breached the rule in Browne v Dunn by failing to question first responders about whether they had engaged the handbrake after the collision
  • Whether the Crown breached its obligation to present the whole case fairly by not calling first responders to give evidence on that issue
  • Whether improper cross-examination of the defence toxicologist (Dr Robertson) about his credibility, without first obtaining the court's leave under s 103 of the Evidence Act 1995 (NSW), caused a miscarriage of justice
  • Whether the Crown's forensic pharmacologist (Dr Perl) gave opinion evidence outside her area of expertise in breach of s 79(1) of the Evidence Act 1995 (NSW)
  • Whether the jury was subject to undue time pressure that denied the appellant a fair trial
  • Whether the trial judge erred by declining to rule on the discharge application before the jury returned its verdict
  • Whether the cumulative effect of all alleged irregularities amounted to a miscarriage of justice

Decision

Browne v Dunn and the handbrake issue. The Court found no breach of the rule in Browne v Dunn. The Crown had cross-examined the appellant about whether he applied the handbrake after the collision, fairly putting to him the inference it later advanced in closing address. The primary issue at trial was whether the passenger or the dangerous driving caused the collision, not whether a first responder engaged the handbrake. A fair presentation of the Crown case did not require the first responders to be called to address that secondary question. Even if some irregularity existed, there was no "real chance" it could have affected the verdict or caused practical injustice.

Dr Robertson cross-examination. The Court accepted that the prosecutor erred in asking questions about Dr Robertson's and a subordinate's prior employment without first seeking leave under s 103 of the Evidence Act 1995 (NSW). However, counsel promptly objected, the questions were disallowed, and the trial judge directed the jury to disregard them entirely. In those circumstances, no miscarriage of justice arose.

Dr Perl's opinion on shock symptoms. The appellant failed to demonstrate that Dr Perl's evidence about the time required for shock symptoms to manifest fell outside her expertise under s 79(1) of the Evidence Act 1995. The Court also noted that defence counsel had elicited similar evidence from Dr Robertson in cross-examination, which diminished any suggestion of practical injustice. The Court characterised the eliciting of Dr Perl's evidence as a forensic choice by defence counsel, rather than an irregularity by the Crown.

Jury time pressure and the discharge application. The Court found no proper basis to conclude the jury was under undue time pressure. The trial judge had directed the jury not to feel pressured, extended sitting hours in consultation with jurors, and the jury was unaware that the discharge of a third juror before verdict would have ended the trial. No notes expressing time pressure were handed up immediately before the verdict. The two-hour deliberation period, standing alone, supported no adverse inference. The trial judge's decision to defer ruling on the discharge application until later in the day of the verdict was also found to be within his broad discretion and appropriate in the circumstances. On the cumulative ground, the Court dismissed the contention that the aggregated irregularities, none of which individually had been made out with any real force, combined to produce an unfair trial.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that Browne v Dunn is not breached where the Crown cross-examines the accused directly on an inference it later relies upon in closing, even if other witnesses who might theoretically have relevant information were not questioned on that topic.
  • A breach of s 103 of the Evidence Act 1995 (NSW), which prohibits cross-examination about a witness's credibility without leave, will not automatically give rise to a miscarriage of justice where the impugned questions are promptly disallowed and the jury is directed to disregard them.
  • Where a party elicits evidence through its own forensic choices at trial, it faces significant difficulty arguing on appeal that the same evidence caused a miscarriage of justice.
  • In dismissing the appeal, the Court reaffirmed that decisions about when to hear a jury discharge application fall within the broad discretion of the trial judge, consistent with the approach in Crofts v The Queen.
  • Under the cumulative irregularities ("omnibus") ground, the fact that multiple alleged errors are of markedly different character from one another makes it less likely their combination will amount to an unfair trial, particularly where none of the individual grounds is made out with any real strength.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 52A(2)
- Evidence Act 1995 (NSW) ss 79(1), 103

Cases:
- Browne v Dunn (1893) 6 R 67
- Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
- Hofer v The Queen (2021) 395 ALR 1
- Edwards v The Queen (2021) 393 ALR 368
- Gilham v R (2012) 224 A Crim R 22
- MG v R (2007) 69 NSWLR 20
- Fadel v R (2017) 94 NSWLR 670
- Anderson v R (2010) 202 A Crim R 68
- Crofts v The Queen (1996) 186 CLR 427
- Perish v R; Perish v R; Lawton v R (2016) 92 NSWLR 161
- Libke v The Queen (2007) 230 CLR 559
- Montgomery v The Queen [2013] NSWCCA 73
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
- Filippou v The Queen (2015) 256 CLR 47
- El Hassan v R [2007] NSWCCA 148
- Gilbert v The Queen (2000) 201 CLR 414
- AK v The State of Western Australia (2008) 232 CLR 438
- Issakidis v R (2019) 379 ALR 292