Regina v Nelson

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1215 FILE NUMBER(S) : LOWER COURT Nicholson DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60092/04

GROVE J DOWD J SPERLING J

Friday 9 July 2004 REGINA v CHANTAL DENISE NELSON Judgment 1 GROVE J: This is an appeal against conviction following trial before Nicholson DCJ and a jury upon counts of aggravated dangerous driving causing death and aggravated dangerous driving causing grievous bodily harm contrary to s 52A(2) and 52A(4) of the Crimes Act 1900. 2 The ground of appeal is: "There has been a miscarriage of justice in that evidence was received by the jury that should have been excluded". 3 The argument in support of the ground is that an admission, having regard to the circumstances in which it was made, was such as to render it unfair to the appellant to use the evidence. Reliance is placed upon the discretion vested in the trial judge pursuant to s 90 of the Evidence Act 1995. No objection to the particular evidence was taken at trial and no call was made upon the learned trial judge to either consider or exercise that discretion. Rule 4 of the Criminal Appeal Rules applies. 4 It is however a convenient method of considering the issue raised notionally to examine an application to exclude the evidence in accordance with s 90. In addition, this Court is in a position to observe the use that was in fact made of the now disputed evidence. The appellant was driving a Ford Falcon sedan west on the M4 motorway at St Clair. Her de facto partner John Bastow occupied the front passenger's seat and three children were in the rear seat. Witnesses saw the car fishtail and overturn. Mr Bastow died and one of the children suffered injuries which amounted to grievous bodily harm. 5 Prior to the incident a witness (in a vehicle overtaken by the appellant's car) estimated its speed at faster than 110 kilometres per hour. The time was about 7 pm. The appellant was conveyed to hospital. A blood sample was taken shortly after 8 pm and was analysed to contain 0.194 grams of alcohol per 100 mls of blood. There was expert evidence that, at the time of impact her blood alcohol content would have been no less than 0.15 grams per 100 ml of blood. This circumstance elevated the offences into the aggravated forms. 6 At Nepean District Hospital a Constable Moir, a highway patrol officer, approached the appellant. He specifically told her that he was seeking details of all people involved in the accident. The appellant produced her driver's licence. There was discussion about change of address from that indicated on the licence. Constable Moir asked whether the appellant could remember anything about the accident and she answered in the negative. She described, however, some memories she did have. During the discussion the appellant was seen to take some substance from a bottle with a medical dropper and a nurse took it away. In resumed conversation the appellant stated that she could not remember whether she was driving the car. After the blood sample was taken the appellant asked the constable about Mr Bastow. He told her that unfortunately he had passed away as a result of the accident. She asked him where his body would be taken and he told her. 7 The appellant then raised a subject with Constable Moir saying, "Will I get charged for driving?" And he replied, "I cannot answer that as this matter is under investigation by crash investigation officers". He added, "Have you got a contact number that you can be contacted on?" The appellant replied in the affirmative and supplied a number. She then said, "Can you see if my mobile phone is in the car? I need that to get a phone number to call the kid's father to tell him what's happened. He might then come here and finish what I tried to do, kill myself". 8 Afterwards Constable Moir left the hospital. He entered his recollection of the conversation into a word processor about forty minutes after that departure. It is the final remark above quoted upon which the ground of appeal is focussed. 9 Trial counsel (who did not appear in the appeal) cross examined Constable Moir to suggest, relevantly, what the appellant said was "He might come here and kill me himself." Constable Moir did not agree with that proposition. The appellant in her evidence denied saying the words attributed to her by Constable Moir and testified that she said words to the effect, "My ex husband will come and kill me himself". She explained that she "desperately" wanted to telephone the boy's father because the seriously injured lad was being transferred to Westmead Hospital while she expected that she might have to remain at Nepean District Hospital. 10 The evidence of the essential ingredients of the charges was overwhelming and was not the subject of serious challenge, save that the appellant denied that she had control of the car at the critical time because Mr Bastow had seized the steering wheel. Accordingly, she argued that she was not the driver of the vehicle. The Crown called evidence of earlier assertions by the appellant to this effect including a conversation with one of the children and she testified herself to the circumstance. She also relied upon the statutory defence (in respect of which the onus lay on her) that the death or harm was not in any way attributable to the fact that she was under the influence of intoxicating liquor. 11 The final addresses of counsel have been transcribed and it is plain that the disputed remark to Senior Constable Moir was relied upon by the Crown in the context of meeting the challenge to proof that, at the relevant time, the appellant was indeed the driver of the car. Specifically the Crown Prosecutor said that the jury would have conveyed to it that she was blaming herself and not Mr Bastow for the accident. It is apparent that the issue of whether the Crown had proved the appellant was the driver of the car at the relevant time was the principal matter of contest at trial. The reliance by the appellant on the possible defence vested by s52A(8) essentially involved the same evidence. 12 It was not the Crown case that the impact was the result of any attempt by the appellant to kill herself. The Crown submitted that the remark now contended to have required exclusion was a relevant comment among a number of escalating versions given by the appellant concerning the alleged actions of Mr Bastow and the causative effect they might have had in bringing about the impact. In the sense of who was controlling the car, the issue was the identity of the driver. 13 The jury had available for consideration evidence of the following sequence of utterances by the appellant. 14 At the scene she stated to one person (David Williams) that, "The man in the car reached to get a cigarette and grabbed the wheel". To another (Brendan McEntee) that, "He wanted a cigarette and I would not give him one so he shook the wheel". At hospital she told Constable Moir when asked if she was driving that, "I can't remember. I think so, or was it John?" Thereafter she made the comment now in issue. Later she acknowledged to a Constable Bain that she was the driver (occupying the relevant portion of the car) but said, "I am pretty sure that he was grabbing at the wheel because the car was going zoom, zoom". This was accompanied by a gesture describing movement from side to side. The day after the incident, the appellant told a Ms Reid that she was unable to control the car and Mr Bastow tried unsuccessfully to help her regain control. 15 Thus the essential question becomes whether it was unfair not to exclude the comment made to Constable Moir in that sequence. 16 Section 90 of the Evidence Act provides: "In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence." 17 Counsel for the appellant has tabulated the circumstances upon which reliance is placed as relevant to unfairness in admitting the evidence. They are, first, that the appellant was:

(a) drunk (b) in shock (c) at a hospital (d) had just been in a serious car accident that featured the car rolling end over end a number of times (e) was aware that her child was very badly injured, and (f) had been told moments before that her partner was dead. 18 Second, that Constable Moir:

(a) did not caution the appellant at any stage, even though he must have suspected her of a serious driving offence (b) did not take steps to corroborate the admission by way of having another officer with him (c) did not take steps to record admission in any way, either by a hand held recorder or by a notebook or any other document

(d) did not take steps to have the appellant adopt a record of the admission (e) did not cause the admission to be put to the appellant in the later interview on the same evening. 19 Before dealing with these explicit matters, it is apt to consider the notion of unfairness encapsulated in s 90. Although the issue did not relate directly to that statutory provision, there is useful guidance to be extracted from observations in The Queen v Swaffield and Pavic 1998 192 CLR 159. As noted by Brennan CJ (@ p 171) it was a discretionary category of exclusion which arose after the rule against admission of involuntary admissions was established which came to be known as the discretion to exclude for "unfairness". The joint judgment (Toohey, Gaudron and Gummow JJ) having noted that "unfairness" necessarily lacks precision and involves evaluation of circumstances, inter alia, adverted to s 90 as an exemplar (@ 193-194): "It has been said, rightly, that fairness is a vague concept. It has also been said that the application of the unfairness discretion is uncertain because courts have failed to define the policy behind the discretion or considerations relevant to it. This, it is argued, makes satisfactory appellate review of the discretion difficult. The criticism has force though the very nature of the concept inhibits great precision. An approach to unfairness which focuses on whether reception of the evidence in question may have jeopardised the accused's right to a fair trial because the statement was obtained in circumstances affecting its reliability does admit of application by a trial judge and review on appeal. However, the unfairness discretion would achieve nothing beyond what is already required by the general law if it were concerned solely to ensure a fair trial. The concept of unfairness has been expressed in the widest possible form in the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). Section 90 of both Acts reads: 'In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution; and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.' Neither in s 90 nor anywhere else in either Act is there to be found a definition of unfairness. Part 3.11 - 'Discretions to Exclude Evidence' contains a number of provisions of a general nature empowering the court to refuse to admit evidence or to limit its use. In particular s 138(1) prohibits the admission of evidence obtained '(a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; ….. unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained'. This expresses in the widest terms the policy discretion developed by the common law. It is true that an approach, expressed in such terms, lacks certainty. But as the Law Reform Commission of Canada has said: 'there is an undeniable advantage in granting judges discretionary power, since it keeps the courts continually in touch with current social attitudes and may lead to the eventual evolution of the rules as the courts adapt them to changing social realities'." 20 So far as the conduct of Constable Moir is concerned, in the present case, there was nothing in the nature of misrepresentation, trickery or the like which led to the appellant's statement. He had told her that others were investigating the matter and he was seeking particulars appropriate to his status as a highway patrol officer. A reading of the context shows that the appellant's statement was volunteered as an entirely unresponsive utterance to a request by him to advise if she could be contacted by telephone. No conduct of Constable Moir could reasonably be regarded as unfair or to have contributed to any notion of unfairness relating to the making of the statement by the appellant. 21 I turn to the tabulated matters advanced by counsel. 22 That the appellant was drunk, in shock and had been in a serious car accident were all factors equally applicable at the time that she spoke to Mr Williams and Mr McEntee. What was said to them was relied upon by her to support argument that she may not have been the driver. It would create something of a paradox if those statements were admitted in her favour but, in the very same circumstances, what she said to Constable Moir was rejected as unfair. 23 The appellant was, at the time she spoke to him, at hospital, was aware of serious injury to her child and that her partner was deceased. What was being sought was a contact telephone number and it might be inferred from that that the appellant's situation did not manifest a likelihood that she would be retained there. Her knowledge about her son and her partner would, no doubt, have contributed to her emotional state but, with the advantage of hindsight and in the context of all of the evidence, there is little, if anything, to suggest that her statement might be unreliable. Unreliability is not synonymous with unfairness but it is a relevant indicator of whether admission of particular testimony might be unfair. I am unpersuaded that his Honour's non-intervention to reject the evidence was unfair. 24 Neither do the specific complaints tabulated concerning Constable Moir so demonstrate. He had specifically told the appellant that he was not concerned with potential charging and there was no cause for him to administer a caution:cf R v Dutton (unrep) NSWCCA 7 Dec 1990. There was no reason for him to bring equipment to make a recording or to have a corroborating witness present given the extent of the enquiries which he was directing. It was the appellant who, absent any inspiration emanating from the constable, made the statement now asserted to be so damaging that it should have been rejected as unfair. See Foster v The Queen 1993 113 ALR 1. 25 The final complaint that the admission was not put to the appellant by investigators later that evening recognizes that Constable Moir was not conducting the investigation or the interview. There is no evidence that he was aware that the interview was taking place or that the interviewers at that time knew what the appellant had said to Constable Moir. 26 An evaluation of all of the circumstances does not lead to a conclusion that the admission of the evidence was unfair. 27 I have recorded that there was no objection taken at trial. An affidavit by counsel who appeared has been received. It would divert attention from the essential issue to seek now to analyse whether his reasons for not objecting were correct or not. Those reasons become irrelevant if it is determined that there was no miscarriage of his Honour's discretion and therefore no miscarriage of justice. 28 As observed, the challenge is made against a discretionary matter although, of course, in the absence of objection, the learned trial judge was not asked to exercise one. A question arose during the appeal as to whether it would be sufficient for the appellant to show that there was a reasonable possibility that the evidence would have been excluded if the objection had been taken or whether the appellant must show that it would have been excluded. 29 The question was addressed by counsel for the appellant by acknowledging that if the objection had been taken at trial and overruled, the appellant would need to establish error in order to attract intervention by this Court and, quite properly, conceded that the appellant cannot seek to be in a better position when no objection was taken. 30 It follows that the appellant would be required to show that, if the objection had been taken at trial, the evidence would have been excluded. 31 The matters raised do not fulfil that requirement. 32 I would dismiss the appeal. 33 DOWD J: I have read the judgment of Grove J in draft form. I agree with the proposed order and reasons therefore. 34 I have also read the additional observations of Sperling J in his draft judgment. I agree with those additional observations. 35 SPERLING J: I agree with the orders proposed by Grove J and with his reasons. I wish to add the following observations of my own. 36 I refer with gratitude to Grove J's judgment for the trial background of this appeal and the way the appeal was presented. 37 The case for the Crown was as follows. The appellant was driving the vehicle. Her front-seat passenger was Mr J Bastow. There were three children sitting on the rear seat. The car was seen by other drivers to commence to fish-tail, veer sharply to the right, collide with an embankment which formed a median strip in the centre of the road-way, and roll end over end several times. Mr Bastow was killed and one of the children suffered serious injury. The appellant had well over the prescribed concentration of alcohol in her blood at the time of the collision. 38 The appellant's case at the trial was that she was not in control of the vehicle at the time and therefore not the "driver" of the vehicle; and that, if it was found that she was the driver, the alcohol had not contributed to the casualty. 39 In both respects, the same issue of fact was proffered by the appellant. Her evidence was to the following effect: she was driving, there was an exchange with Mr Bastow over whether he could smoke in the car, the steering-wheel suddenly went to the left and she saw that his left hand was on the wheel, she corrected the wheel, the wheel was pulled to the left again, she tried to correct again, the car was then spinning and tumbling. 40 Some support was given to the appellant's version of events through the evidence of Senior Constable Moir who said that, at the scene of the accident, he heard one of the children say to the appellant, "Mummy, John was trying to lean over and drive the car. We then had a crash", to which he heard the appellant say "Yes, sweetie, that's right". 41 In addition to evidence of eyewitnesses concerning the accident itself, evidence was led in the Crown case, of conversations between the appellant and others, including the police, occurring shortly after the accident. The conversations, as given in evidence were as follows. 42 Immediately after the event, the appellant spoke to two persons who had witnessed the accident. According to Mr D Williams, the appellant told him that her passenger reached to get a cigarette and grabbed the wheel. 43 The other person who witnessed the accident was Mr B McEntee. He said that the appellant told him that her passenger wanted a cigarette, that she would not give him one, so he shook the wheel. 44 Senior Constable Moir attended the scene of the accident. He asked her if she was driving the car. She said, "I can't remember. I think so, or was it John?" Later in the conversation, the appellant said she needed to telephone the children's father to tell him what had happened and that "he might then come here and finish what I tried to do, kill myself". (The evidence of this statement by the appellant gives rise to the appeal.) 45 The accident was investigated by Senior Constable Bain. He spoke to the appellant at the hospital soon after the accident. According to him, the appellant acknowledged that she was the driver. Asked if she remembered what had happened, she first said "Not really" and then went on to say "I'm pretty sure that he [Mr Bastow] was grabbing at the wheel because the car was going zoom, zoom", indicating left and right with her hands. She went on to say that she and Mr Bastow were arguing over cigarettes. (This was relied on by the Crown as evidence that Mr Bastow took hold of the wheel, if he did , only after the car went out of control.)

46 On the day following the accident, the appellant spoke to Ms Reid. According to her, the appellant said that she was driving, that she was unable to control the car, so Mr Bastow lent over and helped her to do so, but the two of them were unable to control it together, and that she believed, or that someone had advised her on the site, that the steering-arm had broken. (That was consistent with the implication which the Crown said arose from the statement to Senior Constable Bain.) 47 In his address to the jury, the Crown prosecutor referred to this body of evidence in some detail, pointing out the inconsistencies between the various versions given by the plaintiff shortly after the accident and the inconsistencies with the plaintiff's account given in evidence by her. He invited the jury to reject the appellant's evidence of interference by Mr Bastow altogether. He also submitted that, if Mr Bastow did take hold of the wheel, that occurred after the car went out of control or the appellant remained sufficiently in control of the vehicle to continue to be the "driver". He further submitted that the jury would not be satisfied that the alcohol had not contributed to the accident in any event. 48 With regard to the statement to Senior Constable Moir, the Crown prosecutor submitted that the appellant was blaming herself and thereby implying that she was in control of the vehicle at the time of the accident. It was not suggested that her statement to Senior Constable Moir should be taken literally, to the effect that the appellant was endeavouring to commit suicide. The Crown prosecutor put no more emphasis on the evidence of this statement by the appellant than on the evidence of other statements made by her shortly after the accident. 49 In his address to the jury, counsel for the appellant dealt with this body of evidence by arguing that the accounts of the conversations given by the various witnesses were, for various reasons, unreliable and that, if the accounts were correct, the statements by the appellant were made by her when she was upset and ought not accordingly to be held against her. The statement to Senior Constable Moir which is the subject of this appeal was dealt with in that way, along with the others. 50 In his summing up, the trial judge gave general directions concerning the assessment of witnesses by the jury. He did not review the evidence of statements made by the appellant to the various witnesses shortly after the event nor the arguments which had been advanced in relation to that evidence. His Honour was not asked to supplement his summing up in that regard either by the Crown or by counsel for the appellant. 51 It is apparent from the course of the trial (including the evidence, the addresses and the summing up) that the statement by the appellant to Senior Constable Moir, which is the subject of this appeal, was not a major feature of the trial. It was one of several statements relied on by the Crown as evidence of inconsistency in accounts of the accident given by the appellant shortly after the event and of inconsistency between such accounts and the account of the accident given by the appellant in her evidence. The conversation with Ms Reid, on the day following the accident, was far more damaging to the appellant than her statement to Senior Constable Moir. No special significance was attributed to the evidence of the statement to Senior Constable Moir by counsel or by the trial judge, relative to other accounts in that body of evidence. 52 There having been no objection to the evidence, there is no question of error on the part of the trial judge. In these circumstances, to succeed in the appeal, the appellant must demonstrate a miscarriage of justice: Criminal Appeal Act 1912, s 6(1) and Papakosmas (1999) 196 CLR 297, per McHugh J at [319]. 53 The appellant invokes s 90 of the Evidence Act 1995. That section invests the trial judge, in criminal proceedings, with a discretion to exclude evidence of an admission by the accused if, having regard to the circumstances in which the admission was made, it would be unfair to the accused for the evidence to be used. 54 No application was made to the trial judge to exclude the evidence pursuant to s 90. In these circumstances, what holding must the appellant obtain from this court in order to establish a miscarriage of justice? According to the appellant, the necessary holding is that, if the point had been taken, the evidence should have been excluded or, to put it another way, that a refusal to exclude the evidence would have been manifestly wrong. According to the Crown, the necessary holding is that a proper exercise of discretion would require the evidence to be excluded. There is no material difference between these two formulations. They amount to a common position that this court must be satisfied that the trial judge could not reasonably have refused to exclude the evidence if the objection had been taken.

55 Insofar as the relevant statement was made by the appellant when she was distressed, that was a factor which the jury was well able to assess and evaluate in weighing the evidence of statements made by the appellant shortly after the accident. The appellant's intoxicated state is also relied upon in the appeal as a further reason for it being unfair to the appellant for the evidence to be used against her. That also was a factor which the jury was well able to take into account. 56 In view of this consideration and the considerations mentioned by Grove J bearing upon this question, it has not been established to my satisfaction that the trial judge could not reasonably have refused to exclude the evidence of the statement to Senior Constable Moir if the objection had been taken at trial. 57 Furthermore, the proviso to s 6 of the Criminal Appeal Act 1912 and r 4 of the Criminal Appeal Rules stand in the way of this appeal. Even assuming, in favour of the appellant, that, if objection had been taken, the evidence would necessarily have been excluded, there was no miscarriage of justice. The evidence was of relatively minor significance in the context of the evidence of other statements made by the appellant shortly after the accident and in the context of the evidence as a whole. It cannot be said that the appellant lost a chance of acquittal by reason of the evidence of this statement having been placed before the jury. For that reason also, there was no miscarriage of justice. **********

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