Severino v R

Court of Criminal Appeal (NSW)|2016-09-23|Before: Payne JA, Campbell J, Wilson J

headnote [This headnote is not to be read as part of the judgment] On 4 August 2015, a jury found Michael John Severino guilty of aggravated dangerous driving causing death. The Crown case was that on 9 April 2014, Mr Severino lost control of his car while driving on Mona Vale Road. The car rolled at least twice, during which both Mr Severino and his passenger, Ms Kaleigh Fryer, were thrown from the vehicle. Ms Fryer died at the scene. At the time of the crash, Mr Severino was intoxicated and the car was travelling at 105km/h in a 90km zone. The sole issue at trial was the identification of the driver. The prosecution relied upon a number of conversations between Mr Severino and police officers, paramedics and members of the public at the scene of the crash to prove that he was the driver. In the course of these conversations Mr Severino said, among other things, "I don't want to incriminate myself", "I was the driver" and that "his mates told him he was right to drive". He also denied that he was the driver of the crashed car. The prosecution also relied on circumstantial evidence in support of its case. Mr Severino sought leave to appeal against his conviction. Leave was required under r 4 of the Criminal Appeal Rules as none of the points advanced on appeal were raised at trial. The application raised the following issues: (1) were the admissions and representations made by the applicant inadmissible? The relevant arguments made were that: (a) the admissions made to police officers inadmissible under s 85 of the Evidence Act; and / or (b) the statements made to police officers have been excluded under s 138 of the Evidence Act as they were improperly obtained; and in any event (c) even if the evidence was admissible after considering the matters in (a) and (b), the representations have been inadmissible under s 137 due to the danger of unfair prejudice to the applicant outweighing their probative value. (1A) was a miscarriage of justice occasioned by inadmissible evidence being admitted at trial where no objection was made by counsel for the defendant? (2) did the prosecution misuse this evidence, by using it to prove consciousness of guilt? (3) should the trial judge's summing up have included a direction that this evidence should not be used to prove consciousness of guilt? The Court held, refusing leave to appeal: (1) Regarding the admissibility of the admissions and representations made by the applicant: (a) The circumstances in which admissions were made to the police as a whole demonstrated that it is unlikely that the truth of those admissions was adversely affected. Therefore those admissions were not inadmissible by reason of s 85 of the Evidence Act: [75] (b) The applicant was deemed to be under arrest at the time he made representations to the police officers. In this case, however, the desirability of admitting the evidence of the applicant's representations to police outweighed the undesirability of admitting improperly obtained evidence. Therefore, those representations were not inadmissible by reason of s 138 of the Evidence Act: [90] ‑ [92] (c) None of the representations made should have been excluded under s 137 of the Evidence Act: [94] -[104] (1A) The fact that the representations were admitted into evidence does not show that the applicant has lost a real or fairly open chance of being acquitted at trial: [109]. (2) The prosecution did not invite the jury to use consciousness of guilt reasoning, nor did it suggest that the applicant was lying. Viewed in context, the prosecution was addressing the reliability of the applicant's responses in the conversations that occurred in the aftermath of the crash, seeking to show that he was able to understand the questions being put to him and formulate coherent answers to particular questions: [117]. (3) Given the manner in which the prosecution relied on the representations, no arguable miscarriage of justice arose by reason of the trial judge not giving a direction about lying or consciousness of guilt: [129].

Judgment

THE COURT: On 4 August 2015, following a 7 day trial before Woodburne SC DCJ, the applicant was found guilty by a jury of one count of aggravated dangerous driving causing death contrary to s 52A(2) of the Crimes Act 1900 (NSW).
On 25 August 2015, the applicant was sentenced to a non-parole period of four years with a balance of term of two years and nine months, commencing on 17 August 2015. The applicant will therefore be eligible for parole on 16 August 2019. As the applicant does not appeal his sentence it is unnecessary to consider this issue further.
The applicant seeks leave to appeal to this Court on conviction. Leave is required under Rule 4 of the Criminal Appeal Rules (NSW) as none of the points that are the subject of the grounds of appeal were raised at trial.

Background

At about 4.13am on 9 April 2014, the applicant was involved in a motor vehicle crash. The Crown case at trial was that the applicant, who was driving his red Toyota Corolla, lost control of the car while making a slight left-hand turn along Mona Vale Road near Terry Hills. The car rolled at least twice before coming to rest, during which both occupants of the car, the applicant and Ms Kailegh Fryer, were ejected from the vehicle. Ms Fryer died at the scene from the injuries she sustained in the crash.
The speed limit on this stretch of Mona Vale Road is 90km per hour. The uncontested evidence at trial was that the car was travelling at 105km per hour when the crash occurred, and 70km per hour when it began to roll.
Both the applicant and Ms Fryer were intoxicated at the time of the incident. The applicant's blood-alcohol concentration at 4.55am on the day of the crash was 0.161 grams per 100 millilitres. It was agreed that the applicant's blood-alcohol concentration at the time of the crash was likely 0.170 grams per 100 millilitres. The deceased's blood-alcohol concentration at the time of the crash was likely 0.157 grams per 100 millilitres.
The sole issue at trial was whether the applicant was driving the car at the time of the crash.

Statements made at the scene of the accident

There were no eye witnesses to the crash. The Crown adduced evidence of a number of conversations and interactions between the applicant and people who attended the scene of the crash. The Crown relied on three of those interactions as admissions by the applicant that he was driving the car.

Mr Sharkey

The first person to come across the crashed vehicle was Mr Peter Sharkey who, at about 4.15am, was driving to work and saw the applicant lying across the grass and gutter about 3‑4 metres from the passenger side of the car. Mr Sharkey dialled triple 0. The applicant was face down and appeared to be unconscious. Mr Sharkey pushed or shook the applicant and about 20 or 30 seconds later the applicant responded. Mr Sharkey heard the applicant call out the deceased's name. He thought the applicant had been drinking; he could smell alcohol on his breath and his speech was slurred. The applicant was also possibly in shock. Mr Sharkey agreed in cross-examination that he did not see the applicant in the car, opening the car door or doing anything near the car.

Mr Lala

The first admission relied upon by the Crown was made by the applicant to Mr Timothy Lala, who was a passenger in a car being driven by Mr Paul Talbot. Mr Lala and Mr Talbot were next to arrive at the scene. Mr Lala gave evidence that he saw the applicant get out of the driver's side and stumble around the back of the car. Mr Lala asked the applicant what day it was and the applicant responded, "Tuesday night". Holding up five fingers, he asked the applicant how many fingers he was holding up. The applicant responded, "Five". Mr Lala then asked the applicant whether there was anyone else in the car with him, and he responded "No". He asked if the applicant had been drinking and how many drinks he had had. Mr Lala gave evidence that "all he said to me was his mates told him he was right to drive".
In cross-examination, Mr Lala agreed that he had had four scotch and cokes that night. He agreed that he was shaken and in shock and had difficulty breathing at one stage. Mr Lala suffers from anxiety and the police arranged for a paramedic to examine him at the scene.

Mr Talbot

Mr Talbot was driving himself and Mr Lala along Mona Vale Road. When they stopped at the scene, Mr Talbot saw Ms Fryer lying half on the road and half on the gutter. He attended to her and did not speak directly to the applicant. He heard the applicant yelling out Ms Fryer's name.

Constable Doroszuk

Constables Leanne Doroszuk and Clinton Whatman were the first police to arrive at the scene at 4.18am. A minute later Constables Bradley Curle and Matthew Shaw arrived.
Constable Doroszuk gave evidence that she saw a woman lying on her back on the side of the road. The applicant was sitting next to the woman and shaking her arm. Constable Curle checked the woman's pulse.
Constable Doroszuk introduced herself to the applicant and asked his name. The applicant responded, "I'm not telling you anything". She then asked if he was involved in the car crash, and the applicant responded, "No comment". Constable Doroszuk asked the applicant whether he was ok, and the applicant responded, "I'm not going to say anything. I'm not going to incriminate myself". The applicant's breath smelt of alcohol and his speech was slow and slightly slurred. In cross-examination, Constable Doroszuk said that despite this, the applicant "calculated his responses to me". She agreed that she was concerned that the applicant was a flight risk.

Constable Curle

When Constable Curle arrived on the scene, he checked Ms Fryer's pulse and determined that she had died. He then walked to the applicant, who smelt of alcohol and was walking around. The second admission that the Crown relied upon occurred in a conversation between the applicant and Constable Curle as follows: "Curle: You were driving? Applicant: No Curle: You sure? Applicant: I don't know. Curle: Were you or not? Applicant: Yes Curle: Where was she? Applicant: I don't know, she wasn't in my car. Curle: Well where was she then, tell me? Applicant: I don't know. Curle: Have you been drinking? Applicant: Yes Curle: How much? Applicant: A fair bit. Curle: You are under arrest for blood and urine sample. Applicant: Okay."

Constable Shaw

Constable Shaw spoke with Mr Talbot and Mr Lala. When the applicant had finished speaking with Constable Curle, Constable Shaw approached him and asked, "What happened to her?", referring to the deceased. The applicant responded, "I know her, I was with her earlier." Constable Shaw then said, "We need to know what happened to her." The applicant responded, "I was with her earlier". Constable Shaw then said, "Mate, look at her. She's dead. She was either in the car or you hit her with it" and the applicant replied, "I know her. She was with me".
Constable Shaw gave evidence that there was a strong smell of alcohol on the applicant's breath and that he appeared to be in shock, not grasping the severity of the situation.

Brian Joyce

At 4.23am, paramedics Brian Joyce and Daniel Simpson arrived at the scene. Mr Joyce asked the applicant, who was standing with police, if he was involved in the crash or was a bystander. The applicant responded, "I was the driver". This was the third admission relied upon by the Crown.
Mr Joyce assessed the applicant, including asking him what day, month and year it was. The applicant was unsure of the date. He scored 14 out of 15 on the Glasgow Coma Scale, a scale where 15 represents the highest level of consciousness, based on an assessment of motor responses, verbal responses and eye opening. Being affected by alcohol is irrelevant to the scale. Mr Joyce stated that he told police that the applicant seemed to be amnesiac about the event.

Cameron Marks

Mr Cameron Marks is an intensive care paramedic. He attended the scene of the crash, arriving separately to Mr Joyce and Mr Simpson. Shortly after Mr Joyce assessed the applicant, Mr Marks asked him some questions to assess his clinical condition. He gave evidence that the applicant was able to comply with his requests to, e.g., squeeze his hand. He said that the applicant was "a poor historian" and not able to understand what was happening or where he was going once he was put in the ambulance to go to the hospital.

Circumstantial evidence

The Crown relied upon six pieces of circumstantial evidence to support its case: 1. the fact that the applicant was the registered owner of the car; 2. a partial DNA profile matching the applicant was found on the gearstick; 3. the car was found in 5th gear, meaning that it had been taken up through 1st, 2nd, 3rd and 4th gears, a matter of significance in light of the deceased's inability to drive a manual car; 4. the fact that the deceased was only ever licensed to drive an automatic car; 5. the deceased's blood alcohol content at the time of her death was 0.157 per 100 millilitres. Given her inexperience in driving a manual car, it was unlikely that she would attempt to put a manual car in motion in circumstances where the car was not hers, it was 3 or 4am and at a time when she had drunk so much alcohol as to be in the high range of prescribed concentration of alcohol; and 6. the fact that a woman's shoe and clutch handbag were found in the footwell of the passenger seat of the vehicle.

The defence case

The applicant did not give evidence at trial. The statement he gave to police 30 days after the crash was tendered in which he stated he had no recollection of whether he was the driver of the car on the night of the crash.
The defence relied upon three pieces of evidence in particular: 1. that all but one of the applicant's injuries were to the left (passenger) side of his body; 2. that he was found by Mr Sharkey to be lying on the grass on the passenger side of the vehicle; and 3. that the blood on the interior passenger-side of the windscreen had the same DNA profile as the applicant.
Regarding the three admissions said to have been made by the applicant, the defence contended that anything said by him in the immediate aftermath of the crash was unreliable because of the combined effects of his blood-alcohol level, the injuries he suffered as a result of the crash, and shock.
Senior Counsel then appearing for the applicant submitted at trial that Mr Lala's evidence was so unreliable that it could not be accepted. It was also submitted that the inconsistencies in the interactions between the applicant and those attending the scene of the accident made any admission totally unreliable.
The defence also relied on the expert evidence of a neurologist, Professor Brew. Professor Brew did not examine the applicant. He expressed the opinion that because of the applicant's blood-alcohol concentration and his head injury, his memory of the events would have been impaired.
In cross-examination, Professor Brew agreed that: 1. although affected by alcohol the applicant may still have been oriented in time and place and "be giving responsive answers to questions"; 2. the use of the word "incriminate" by the applicant in the conversation with Constable Doroszuk shows a particular reasoning process, and that the applicant was thinking about the consequences when answering the question. The applicant was "alive to what he is being asked"'; 3. it was possible that the applicant's answers of "I don't know" and "I don't remember" were calculated to avoid answering the question by the police officer; 4. the applicant's answer to Mr Joyce that "he was the driver of the vehicle" was responsive to the question asked and "there was no way he was hedging when he gave that one [answer]".

Grounds 1 - 5

Grounds 1 to 5 of the appeal concern the adducing of evidence about various representations made by the applicant. These provided: "1. A miscarriage of justice has occurred as a result of the prosecution adducing evidence of representations said to have been made by the Appellant to Constable Doroszuk. The evidence of those representations was inadmissible and/or ought to have been excluded in the exercise of the trial judge's discretion; 2. A miscarriage of justice has occurred as a result of the prosecution adducing evidence of representations said to have been made by the Appellant to Constable Curle. The evidence of those representations was inadmissible and/or ought to have been excluded in the exercise of the trial judge's discretion; 3. A miscarriage of justice has occurred as a result of the prosecution adducing evidence of representations said to have been made by the Appellant to Constable Shaw. The evidence of those representations was inadmissible and/or ought to have been excluded in the exercise of the trial judge's discretion; 4. A miscarriage of justice has occurred as a result of the prosecution adducing evidence of representations said to have been made by the Appellant to Ambulance Officer Joyce. The evidence of those representations was inadmissible and/or ought to have been excluded in the exercise of the trial judge's discretion; 5. A miscarriage of justice has occurred as a result of the prosecution adducing evidence of representations said to have been made by the Appellant to Ambulance Officer Marks. The evidence of those representations was inadmissible and/or ought to have been excluded in the exercise of the trial judge's discretion."

Applicant's submissions

The applicant advanced three arguments as to why the representations the subject of appeal grounds 1 - 5 were inadmissible.
First, the applicant submitted that all of the representations made to the police constitute admissions, and should have been excluded under s 85 of the Evidence Act 1995 (NSW). Section 85 provides: (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and (b) if the admission was made in response to questioning: (i) the nature of the questions and the manner in which they were put, and (ii) the nature of any threat, promise or other inducement made to the person questioned.
The following definitions in the Dictionary to the Evidence Act are also relevant: Admission means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding. Previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced. Representation includes: (a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or (c) a representation not intended by its maker to be communicated to or seen by another person, or (d) a representation that for any reason is not communicated.
The applicant noted that the Crown relied on the representation to Constable Curle as an admission. He submitted that the other representations also constituted admissions for the purpose of s 85, as the Crown argued that the applicant's denials to Constable Doroszuk and Constable Shaw were deliberate lies to avoid admitting he was the driver and thus adverse to his interest; relying on R v Horton (1998) 45 NSWLR 426, which was later applied in R v Kaddour (2005) 156 A Crim R 11; [2005] NSWCCA 303.
The applicant submitted that these representations were made in circumstances which made it likely that the truth of the admissions was adversely affected; specifically, that the applicant had been unconscious in the immediate aftermath of the crash, had an apparent head injury, appeared to be in shock, was affected by alcohol, appeared to be disoriented and gave inconsistent answers in a short time frame (including in the course of the conversation giving rise to the admission to Constable Curle). The applicant submitted that the evidence of Professor Brew that the applicant's mental state was not normal in the course of this conversation also indicates that the admissions are unreliable.
The applicant also emphasised that the questions asked by Constable Curle were accusative and that the Constable did not caution the applicant.
Secondly, the applicant submitted that if the statements were not inadmissible under s 85, then they should be excluded under s 138(1)(a) as they were improperly obtained. This is because the statements were made by the applicant at a time when, for the purposes of s 139, he was under arrest, and none of the police officers cautioned him in accordance with s 139(1)(c). Section 138 of the Evidence Act provides: (1) Evidence that was 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, is not to be admitted 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. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Section 139 of the Evidence Act provides: (1) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a) the person was under arrest for an offence at the time, and (b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and (c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. (2) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a) the questioning was conducted by an investigating official who did not have the power to arrest the person, and (b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and (c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. (3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately. (4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official. (5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if: (a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or (b) the official would not allow the person to leave if the person wished to do so, or (c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so. (6) A person is not treated as being under arrest only because of subsection (5) if: (a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth, or (b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.
The applicant submitted that the evidence at trial established that each of the police officers must have either believed there was sufficient evidence to establish that the applicant was criminally involved in the crash (s 139(5)(a)), or would not have allowed him to leave if he wished to do so (s 139(5)(b)). Constable Doroszuk accepted that she was concerned the applicant was a "flight risk". Constable Curle accepted that he stayed with the applicant before speaking with him, presumably, the applicant submitted, to prevent him from leaving the scene. It was submitted that the nature of Constable Curle's questions, including the use of questions like "You were driving?", were accusatory and demonstrated that he believed there was sufficient evidence to establish that the applicant was criminally involved in the crash.
The applicant was formally arrested at the conclusion of his conversation with Constable Curle and was therefore under arrest when speaking with Constable Shaw. At no point at the scene was the applicant cautioned or told under what power the police could ask questions of him.
On appeal, the Crown identified ss 11 and 14(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and s 177 of the Road Transport Act 2013 (NSW), which respectively empower a police officer to request that a person disclose their identity, the identity of a passenger in a car and give the name and address of the driver of a car.
The applicant submitted that the questions asked of him after the crash went beyond the identity of the occupants of the car. Further, it was submitted that the police did not explain the reason for requesting that information (as they are required to do under s 201 of the Law Enforcement Powers and Enforcement Act).
The applicant further submitted that it was improper for the police to question the applicant when he had been observed to be affected by alcohol, he had just minutes prior been involved in the crash and he was confused and disoriented.
The applicant submitted that the desirability of admitting this evidence did not outweigh the undesirability of admitting the evidence given the way it was obtained, taking into account the prescribed factors in s 138(3): 1. the proceedings involved a very serious offence, with a maximum penalty of 14 years imprisonment; 2. the probative value of the admission said to be made to Constable Curle was, if accepted as reliable, significant. However, the statements made to Constables Doroszuk and Shaw were not as significant; 3. it is a grave impropriety to fail to caution a person suspected of being involved in a serious criminal offence; 4. there would have been no difficulty in any of the officers cautioning the applicant before asking him questions.
On this basis, the applicant submitted that the evidence should have been excluded under s 138.
Thirdly, the applicant submitted that even if the evidence was admissible after a consideration of s 85 and s 138, the representations to Constable Doroszuk, Constable Shaw, and those said to be made to the ambulance officers Mr Marks and Mr Joyce, were inadmissible by reason of s 137, i.e., that the probative value of the admissions was outweighed by the danger of unfair prejudice to the applicant.
The applicant submitted that there was a real risk that the jury might have used the evidence for an improper purpose, namely to draw an inference of consciousness of guilt on the part of the applicant. Further, this reasoning was forbidden in relation to the applicant's statements to Constable Doroszuk by reason of s 89 of the Evidence Act, which provides that evidence of silence cannot be used to draw an unfavourable inference.
The applicant submitted that the risk of unfair prejudice to him regarding the admission said to be made to Mr Joyce was particularly significant given that his evidence was not given in direct speech. This left open the possibility that Mr Joyce had misinterpreted the words said by the applicant, particularly given that Mr Joyce had asked the applicant if he was involved in the accident or a bystander, not whether he was the driver of the car and that Mr Marks, who spoke with the applicant shortly after Mr Joyce, gave evidence that the applicant was confused and a "poor historian".
The applicant did not advance an appeal ground directed to the evidence of Mr Lala. The applicant asserted that this evidence was not relied upon by the Crown at trial. On appeal, the Crown indicated that Mr Lala's evidence was relied upon as an admission. At the hearing, the applicant indicated that if necessary leave was sought to add a ground in the same terms as grounds 1 to 5 dealing with the representations made to Mr Lala. It was submitted that, while ordinarily evidence is taken at its highest, Mr Lala's evidence was so incredible that it was not relevant: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 per French CJ, Kiefel, Bell and Keane JJ at [54], [58].
In oral submissions in this Court, the applicant submitted that the failure of counsel at trial to object to the admissibility of these representations (on any of the grounds identified above) stemmed from the Crown's failure to articulate which of the statements were admissions, and what use was to be made of the remaining representations.
On the hypothesis that the admissions and representations made to the police officers were inadmissible under either s 85 or s 138 and in fact not admitted, it was submitted that the admission made to Mr Joyce should have been excluded under s 137 of the Evidence Act, as the jury would not have had the benefit of the other representations to assess the reliability of the admission. It was submitted that there would have been no forensic advantage to the applicant at trial to have allowed evidence of all the representations to be adduced, particularly inadmissible representations, just to illustrate the context of the one admission made to Mr Joyce.

Crown submissions

Regarding admissibility under s 85, the Crown accepted that the applicant's statement made to Constable Curle was an admission, and submitted that it was made in circumstances that were such as to make it unlikely that the truth of the admission was adversely affected.
The Crown submitted that the applicant's statements to Constables Doroszuk and Shaw were not admissions. It has been doubted whether exculpatory statements may properly be classified as admissions within the meaning of the Evidence Act: Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12; The Queen v GH (2000) 105 FCR 419; [2000] FCA 1618.
The Crown submitted that the applicant's statement to Constable Doroszuk was admissible to demonstrate that the applicant was conscious, able to recognise a police officer and apparently capable of cogent thought.
As to the s 138 issue, the Crown submitted that none of the statements taken were improperly obtained and therefore they were not liable to be excluded by reason of this section. In particular, the Crown argued that the statements said to have been made to Constables Doroszuk and Curle were not made when the applicant was "under arrest" (s 139(5)) or in the course of "questioning" (s 139(1)). The Crown relied on R v Naa (2009) 76 NSWLR 271; [2009] NSWSC 851, in which Howie J considered the meaning of "questioning" under s 139(1). His Honour said: "[98] The first question is whether the section applies to the situation in which the police were involved. It depends upon whether the police were engaged in "questioning" the accused. The word is not defined in the Act. In general parlance it means "asking questions of someone" or "interrogating". I do not believe that the word means "a conversation during which questions are asked". Clearly to my mind the section was aimed at formal or informal interrogation of a suspect by a police officer for the purpose of the officer obtaining information, whether or not at the time of the interrogation the suspect was formally under arrest."
With regards to Constable Doroszuk, the Crown submitted that her evidence that she thought the applicant was a flight risk did not support the inference that she would not have allowed the applicant to leave, and therefore that he was under arrest. The nature of the conversation between the applicant and Constable Doroszuk was a police officer trying to find out who the applicant was and whether he needed help, not questioning the applicant as a suspect.
It was submitted that Constable Curle asked repetitive, but neutral, questions of the applicant, which did not establish that he believed the applicant had committed an offence. This was reflected in the fact that Constable Curle did not arrest the applicant until after he had admitted he was driving.
It was submitted that if this Court was persuaded that these statements were improperly obtained, the desirability of admitting the evidence outweighed the undesirability of admitting improperly obtained evidence.
Regarding the applicant's s 137 objections to the statements, the Crown submitted that Constable Doroszuk's evidence had significant probative value as it indicated that the applicant was sufficiently poised and cognitively competent to assert his right to silence. Thus the danger that the jury may have drawn an adverse inference from his exercising his right to silence, particularly since the trial judge gave directions about that, did not outweigh its probative value. Constable Shaw's evidence was only relied upon to show that the applicant knew what was going on. Since it was not used to support consciousness of guilt reasoning, there was no risk of unfair prejudice to the applicant. The evidence given by Mr Marks demonstrated that the applicant could follow instructions. There was no real danger that the jury would misuse that evidence.
As to the admission made to Mr Joyce, the Crown submitted that the reliability of the applicant's admissions was the main issue at trial, and the jury had the benefit of expert evidence, Senior Counsel's closing address and the trial judge's directions. The fact that the evidence was initially given in indirect speech is not relevant. No objection was made to the evidence by experienced counsel. Mr Joyce's evidence in cross-examination was given in direct speech. There was no danger that his evidence would have been misused in the way asserted by the applicant.

Consideration of grounds 1 - 5

None of the evidence the subject of grounds 1-5 of the notice of appeal was objected to by Senior Counsel who appeared for the applicant at trial.
Rule 4 of the Criminal Appeal Rules provides: 4 No direction, omission to direct, or decision as to the admission or rejection of evidence given by the Judge presiding at the trial, shall without the leave of the Court, be allowed as a ground of appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.
The applicant's submission that the Crown was obliged to identify all of the ways under the Evidence Act in which the evidence was admissible should be rejected. A feature of the adversarial criminal justice system is that in a case where both parties are competently represented, absent objection by the defendant or in response to an enquiry from the bench, the Crown is not required to identify the technical basis for the admission of all of its evidence under the Evidence Act at the outset of the trial. Evidence which is "not admissible" under the Evidence Act is to be construed as "not admissible over objection": Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 at [261]-[271]. The trial judge was, subject of course to ensuring a fair trial according to law (Pemble v The Queen (1971) 124 CLR 107 at 117-8), under no obligation to reject evidence where no objection was taken and the defendant was legally represented. This is particularly so where, as here, the applicant was represented by Senior Counsel with long experience in criminal matters.
We will return to this issue in the context of Rule 4 after addressing the objections made on this appeal to the admissibility of those pieces of evidence.

Section 85 of the Evidence Act - representations to the police

It was the applicant's argument that a miscarriage of justice occurred because the representations made by the applicant to Constables Doroszuk, Curle and Shaw were inadmissible by reason of s 85 of the Evidence Act, on the hypothesis that Senior Counsel for the applicant at trial had objected to that evidence.
There was little dispute between the parties on the appeal about the relevant principles which govern this issue. Rather, the dispute was about the application of the relevant principles. Section 85 is concerned with two important concepts; the circumstances in which an admission is made and the likely effect of those circumstances upon the truth of the admission.
The question posed by s 85 is the unlikelihood, or otherwise, that the circumstances in which the admission was made adversely affected the truth of the admission: R v Douglas [2000] NSWCCA 275 (Mason P, Sully and Sperling JJ agreeing). Whether an admission was in fact made or whether an admission was actually true or untrue are matters for the tribunal of fact (unless the defence raises truth or untruth as an issue): s 189(3), see R v Esposito (1998) 45 NSWLR 442; (1998) 105 A Crim R 27; R v Ul-Haque (2007) 177 A Crim R 348; [2007] NSWSC 1251 at [102].
Section 85(3) makes it clear that the range of circumstances relevant for the purposes of s 85(2) include the physical and mental characteristics of the interviewee: R v Clarke (1997) 123 A Crim R 506; [2001] NSWCCA 494; R v Phan (2001) 35 NSWLR 480; (2001) 123 A Crim R 30; [2001] NSWCCA 29.
All three previous representations made to the police contained admissions that, at least in part, were "adverse to the person's interest in the outcome of the proceeding" and thus s 85(1)(a) was satisfied (there being no dispute about the other elements of s 85(1)(a)).
So far as the representations made to Constable Doroszuk was concerned, the following answer amounted to an admission for the purposes of s 85: "I'm not going to say anything. I'm not going to incriminate myself."
This is because that evidence was a previous representation adverse to the applicant's interest in the outcome of the proceeding as it was evidence of an implied representation available to the Crown to demonstrate awareness and cogency of the applicant's state of mind at about the time he made admissions to persons other than the police.
So far as Constable Curle is concerned, the following evidence amounts to an admission for the purposes of s 85: "Curle: You were driving? Applicant: No Curle: You sure? Applicant: I don't know. Curle: Were you or not? Applicant: Yes Curle: where was she? Applicant: I don't know, she wasn't in my car. Curle: Well where was she then, tell me? Applicant: I don't know. Curle: Have you been drinking? Applicant: Yes Curle: How much? Applicant: A fair bit."
Everything from the second question and answer was plainly adverse to the applicant's interest in the outcome of the proceeding as it went directly to the critical issue. The admissions (both direct and indirect oral representations) are only understandable in the light of the first question and answer which contained the only evidence available to the applicant of an express denial that he had been the driver.
So far as the evidence of Constable Shaw is concerned, the following representations were admissions for the purposes of s 85: "Shaw: What happened to her?, Applicant: I know her, I was with her earlier. Shaw: We need to know what happened to her. Applicant: I was with her earlier. Shaw: Mate, look at her. She's dead. She was either in the car or you hit her with it Applicant: I know her. She was with me."
That evidence was a previous representation adverse to the applicant's interest in the outcome of the proceeding as it was evidence of implied representations available to the Crown which tended, at least arguably, to suggest that the applicant was sufficiently aware of his position at the relevant time to give responsive answers to questions. This was a subsidiary but very important issue in the case. A determination that he was responsive in answer to questions was a conclusion adverse to the applicant's interest in the outcome of the proceeding.
On the hypothesis we are addressing (all the other possible preliminary hurdles to a successful objection being satisfied here), the relevant question is whether the Crown proved that the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admissions was adversely affected within the meaning of s 85(2) as amplified by s 85(3).
No miscarriage of justice can be shown so far as admission of these representations under s 85 of the Evidence Act is concerned. While the circumstances to be taken into account included the applicant's level of intoxication, the evidence of at least one of the ambulance officers of a degree of disorientation, Professor Brew's initial opinion and the undoubted shock the applicant felt as a result of the crash and its aftermath, the circumstances in which the admissions were made as a whole persuade us that the Crown demonstrated that it is unlikely that the truth of the admissions was adversely affected. That is for these reasons: 1. the relevant events took place over a few minutes in the immediate aftermath of the crash. The answers given by the applicant to the police demonstrated a sufficient degree of awareness in his surroundings and the need to protect his legal interests to make it unlikely that the truth of the admissions was adversely affected; 2. the nature of the police questioning was neither threatening nor persistent. No promises or inducements were held out; 3. the applicant was able to understand and respond to the various other people he spoke to in the few minutes after the crash; 4. some of the applicant's responses to the police, in particular that he did not wish to incriminate himself, demonstrated a degree of sophisticated reasoning and an understanding of his position. Professor's Brew's evidence in cross-examination set out at [28] above, illustrates that this answer in particular, given in this very short time period, tended to demonstrate that the applicant was "alive to what he is being asked", making it likely that the truth of the admissions was not adversely affected; 5. the applicant was oriented to time and place; 6. the applicant was assessed as stable by the ambulance officers and scored 14 out of 15 on the Glasgow Coma Scale; [see above at [20]] 7. the applicant's admission to Constable Curle is consistent with what he said immediately prior to Mr Lala and immediately after to Mr Joyce.
For these reasons the admissions made by the applicant to the police were not inadmissible under s 85 of the Evidence Act.

Section 138 of the Evidence Act - representations to the police

As to the second basis on which the applicant challenged the admissibility of representations he made to the police officers, in our view none of the representations should have been excluded by reason of s 138 of the Evidence Act.
While this issue was not explored at trial (and thus the Crown lost an opportunity to lead evidence directly about the relevant issues under this section and s 139), it is likely, subject to an argument raised by the Crown and not addressed below, that s 139(5)(b) of the Evidence Act was satisfied here. On the evidence that is available, and for the purpose of addressing the hypothesis that a miscarriage of justice occurred by reason of the failure of Senior Counsel for the applicant before the trial judge to object to the evidence, we would infer that the police would not have let the applicant leave and he was thus deemed to be under arrest under s 139(5)(b). We do not accept that the applicant was not subject to "questioning" for the purposes of s 139. In this regard what Howie J said in Naa, which was relied upon by the Crown, is distinguishable as the following passage makes clear: "[101] I do not believe that the conversation between officer McCarthy and the accused amounted to "questioning" for the purpose of s 139. The questions asked by McCarthy were completely incidental to what she was trying to achieve: to convince the accused to put down the weapons for the safety of himself and others. She was not seeking information from him. She was seeking to distract him, to mollify him and ultimately to persuade him to disarm. No bystander watching the incident would have considered that the officer was questioning the accused. The section was never intended to apply to a siege situation where the police were involved in negotiation rather than investigation." (italics added)
We would regard the questions asked by the police here as meeting the description of "questioning" within the meaning of s 139. Thus, subject to the issue raised by the Crown on the appeal addressed immediately below, s 139(5)(b) of the Evidence Act was satisfied here.
The issue raised by the Crown on this appeal, adverted to above, concerns the police exercising powers under ss 11 and 14(1) of the Law Enforcement Powers and Responsibilities Act 2002 (NSW) and s 177 of the Road Transport Act 2013 (NSW). Those provisions should be set out in full: Law Enforcement (Powers and Responsibilities) Act 2002 11 Identity may be required to be disclosed (1) A police officer may require a person whose identity is unknown to the officer to disclose his or her identity if the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred. (2) A police officer may require a person whose identity is unknown to the officer to disclose his or her identity if the officer proposes to give a direction to the person in accordance with Part 14 for the person to leave a place. 14 Power of police officer to require disclosure of driver or passenger identity (1) A police officer who suspects on reasonable grounds that a vehicle is being, or was, or may have been used in or in connection with an indictable offence may do any one or more of the following: (a) require the driver of the vehicle to disclose his or her identity and the identity of any driver of, or passenger in or on, the vehicle at or about the time the vehicle was or may have been so used or at or about the time the vehicle last stopped before the requirement was made or a direction was given to stop the vehicle, (b) require any passenger in or on the vehicle to disclose his or her identity and the identity of the driver of, or any other passenger in or on, the vehicle at or about the time the vehicle was or may have been so used or at or about the time the vehicle last stopped before the requirement was made or a direction was given to stop the vehicle, (c) require any owner of the vehicle (who was or was not the driver or a passenger) to disclose the identity of the driver of, and any passenger in or on, the vehicle at or about the time the vehicle was or may have been so used or at or about the time the vehicle last stopped before the requirement was made or a direction was given to stop the vehicle. Road Transport Act 2013 177 Requirement for responsible person to disclose driver identity (1) If the driver of a motor vehicle is alleged to have committed an offence against the road transport legislation: (a) the responsible person for the vehicle, or the person having the custody of the vehicle, must, when required to do so by an authorised officer, immediately give information (which must, if so required, be given in the form of a written statement signed by the responsible person) as to the name and home address of the driver, and (b) any other person must, if required to do so by an authorised officer, give any information that it is in the person's power to give and that may lead to the identification of the driver. Maximum penalty: 20 penalty units.
It was permissible under these provisions, subject only to the requirements of s 201 of Law Enforcement Powers and Enforcement Act, for all but two of the questions asked by the three police officers here in issue to be asked. Those questions each went to matters specifically addressed by ss 11 and 14(1) of the Law Enforcement Powers and Responsibilities Act 2002 (NSW) and s 177 of the Road Transport Act 2013 (NSW).
The sole exception is the following two questions and answers which immediately preceded the applicant's formal arrest. "Curle: Have you been drinking? Applicant: Yes Curle: How much? Applicant: A fair bit. Curle: You are under arrest for blood and urine sample. Applicant: Okay."
If objection had been taken to these questions and answers, or the admissibility of this limited evidence were controversial on this appeal, difficult questions may arise, however on the appeal it was common ground that the applicant was intoxicated at the time of the accident so nothing turns on these questions being asked prior to arrest in the absence of specific statutory authority.
Other than in the respects just addressed, the questions asked by the police of the applicant after the accident did not go beyond seeking to establish the identity of the driver and passenger of the car.
Accordingly, by reason of s 139(6) of the Evidence Act, the applicant was not treated as under arrest only by reason of s 139(5) as (subject only to the requirements of s 201 of Law Enforcement Powers and Enforcement Act) the police were at the relevant time exercising a power under an Australian law to require a person to provide information or to answer questions.
The extent to which compliance with s 201 of the Law Enforcement Powers and Enforcement Act as it appeared at the time was a necessary precondition to exercise of the powers in ss 11 and 14 Law Enforcement Powers and Enforcement Act and s 177 of the Road Transport Act, as was submitted by the applicant, was controversial. Section 201 of the Law Enforcement Powers and Enforcement Act as it appeared at the time provided: 201 Supplying police officer's details and giving warnings (1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following: (a) evidence that the police officer is a police officer (unless the police officer is in uniform), (b) the name of the police officer and his or her place of duty, (c) the reason for the exercise of the power. (d) (Repealed) (2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3) (g), (i) or (j)): (a) if it is practicable to do so, before or at the time of exercising the power, or (b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power. (2A) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (g), (i) or (j) before exercising the power, except as otherwise provided by subsection (2B). (2B) If a police officer is exercising a power to give a direction to a person (as referred to in subsection (3) (i)) by giving the direction to a group of 2 or more persons, the police officer must comply with subsection (1) in relation to the power: (a) if it is practicable to do so, before or at the time of exercising the power, or (b) if it is not practicable to do so, as soon as is reasonably practicable after exercising the power. (2C) If a police officer exercises a power that involves the making of a request or direction that a person is required to comply with by law, the police officer must, as soon as is reasonably practicable after making the request or direction, provide the person the subject of the request or direction with: (a) a warning that the person is required by law to comply with the request or direction (unless the person has already complied or is in the process of complying), and (b) if the person does not comply with the request or direction after being given that warning, and the police officer believes that the failure to comply by the person is an offence, a warning that the failure to comply with the request or direction is an offence. (2D) In addition, if a police officer exercises a power that involves the making of a direction under section 198 on the grounds that a person is intoxicated and disorderly in a public place, the police officer must provide the person the subject of the direction with a warning that it is an offence to be intoxicated and disorderly in that or any other public place at any time within 6 hours after the direction is given. (3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act): (a) a power to search or arrest a person, (b) a power to search a vehicle, vessel or aircraft, (c) a power to enter premises (not being a public place), (d) a power to search premises (not being a public place), (e) a power to seize any property, (f) a power to stop or detain a person (other than a power to detain a person under Part 16) or a vehicle, vessel or aircraft, (g) a power to request a person to disclose his or her identity or the identity of another person (including a power to require the removal of a face covering for identification purposes), (h) a power to establish a crime scene at premises (not being a public place), (i) a power to give a direction to a person, (j) a power under section 21A to request a person to open his or her mouth or shake or move his or her hair, (k) a power under section 26 to request a person to submit to a frisk search or to produce a dangerous implement or metallic object. (3AA) Despite subsection (3), this section does not apply to the exercise of a power to enter premises or to search premises or a vehicle, vessel or aircraft that is conferred by a covert search warrant. (3A) If a police officer is exercising more than one power to which this section applies on a single occasion, and in relation to the same person, the police officer is required to comply with subsection (1) (a) and (b) in relation to that person only once on that occasion. (4) If 2 or more police officers are exercising a power to which this section applies, only one officer present is required to comply with this section. (5) However, if a person asks another police officer present for information as to the name of the police officer and his or her place of duty, the police officer must give to the person the information requested. (6) This section does not apply to the exercise of a power that is conferred by an Act or regulation specified in Schedule 1.
The obligation in most cases on the police is to "provide the person" with the three matters in s 201(1) "if it is practicable to do so before or at the time of exercising the power": s 201(2)(a). We accept that the powers under consideration on this appeal meet the description in s 201(3)(g) and thus compliance with s 201(1) was required "before exercising the power": s 201(2A).
Each of these officers was in uniform. Section 201(1)(a) is thus satisfied. The police officers may have had name tags, although there was no specific evidence of this. Section 201(1)(b) may or may not have been satisfied. It seems, before or at the time of exercising the power, the police did not specifically provide the applicant with "the reason" for the exercise of the power. Constable Doroszuk, however, the first officer to interact with the applicant, introduced herself to the applicant asked if he was involved in the car crash. That was the reason for the exercise of the power, although it may be correct that the information was insufficient to "provide" the applicant with the reason for the exercise of the power.
With considerable hesitation, given that the issue was not litigated at the trial and the substance of any evidence the Crown may have called relevant to the issue is not known, we have concluded on the assumptions necessary to address grounds of appeal 1-5, that there was a breach of s 201(1) and (2A) of the Law Enforcement Powers and Enforcement Act, in the police officers seeking to exercise their powers under ss 11 and 14 of the Law Enforcement Powers and Enforcement Act and s 177 of the Road Transport Act. Thus s 139(6) of the Evidence Act did not affect the operation of the provisions of s 139(5) and the applicant was under arrest at the time the admissions were made to the police officers.
We have nonetheless concluded that, on the assumption favourable to the applicant that the admissions made to the police were improperly obtained within the meaning of ss 138 and 139 of the Evidence Act as s 201(1) and (2A) had not been complied with prior to him being asked questions, the correct exercise of discretion under s 138(1)(b) of the Evidence Act would be to permit the evidence to be given.
In this case, the desirability of admitting the evidence outweighs the undesirability of admitting improperly obtained evidence. This is because: 1. the offence was extremely serious and the relevant evidence was of great significance in the trial, going to the sole issue in dispute: s 139(3)(a)-(c); 2. the three police officers each effectively asked the applicant his name, whether and in what capacity he was involved in the accident and whether he had been drinking. They were entitled to do so under ss 11 and 14 of the Law Enforcement Powers and Enforcement Act and s 177 of the Road Transport Act, subject only to the requirements of s 201 of the Law Enforcement Powers and Enforcement Act. The non- compliance with the matters required by s 201(1)(c) and perhaps s 201(1)(b) of the Law Enforcement Powers and Enforcement Act as it appeared at the time was apparently inadvertent (there being no reason to think that identification of the matters in s 201(1)(c) and s 201(1)(b) of the Law Enforcement Powers and Enforcement Act went beyond what was otherwise completely obvious to the applicant in the circumstances at the scene of the collision on that morning) and, in any event, the improper conduct was very much at the lower end of the scale: s139(3)(d)-(g).
No miscarriage of justice occurred by reason of the admission of these representations, having regard to s 138 of the Evidence Act.

Section 137 of the Evidence Act- police evidence

As to the third basis on which the applicant challenged the admissibility of representations he made to the police officers, none of the representations were liable to be excluded by reason of s 137 of the Evidence Act: 1. Constable Doroszuk's evidence had significant probative value as it indicated that the applicant was sufficiently poised and competent to assert his right to silence. Thus the danger that the jury may have drawn an adverse inference from his exercising his right to silence, particularly since the trial judge gave directions about that, did not outweigh its probative value; 2. Constable Shaw's evidence was only relied upon to show that the applicant knew what was going on. Since it was not used to support consciousness of guilt reasoning, there was no risk of unfair prejudice to the applicant; 3. Constable Curle's evidence was highly probative about the critical issue in the case. There was no danger that the jury would misuse that evidence.
No miscarriage of justice can be shown so far as admission of these representations under s 137 of the Evidence Act is concerned.

Section 137 Evidence Act- Mr Lala's evidence

In our view, Mr Lala's evidence was admissible. It was not so lacking in credibility that it could be put to one side: IMM v The Queen.
While it was true that there were aspects of the evidence which were inconsistent with the other witnesses, in particular his evidence that he saw the applicant leaving the car via the driver's side door, whether to accept some or all of Mr Lala's evidence was a jury issue.
Taken at its highest, as it must be for these purposes, Mr Lala's evidence of his conversation with the applicant was highly probative. There was no significant prejudice which could not be cured by jury direction. Adequate directions were given in this case to ensure that the jury did not misuse the evidence of Mr Lala.
No miscarriage of justice can be shown by reason of admission of these representations having regard to s 137 of the Evidence Act.

Ambulance Officer Joyce's evidence

Mr Joyce's evidence was highly significant in the trial. At 4.23am, only a few minutes after the crash, Mr Joyce spoke to the applicant and asked if he was involved in the crash or was a bystander. The applicant responded, "I was the driver".
This was a clear and unequivocal contemporaneous admission made to a person who was not a police officer or an investigator in answer to an open ended question. It was highly probative about the main issue in the case.
The applicant's submission that this evidence would not have been admissible if objection had been taken under s 137 should be rejected. Even if, contrary to this conclusion, the trial judge had been persuaded to reject the evidence of the police officers, it is clear that the admission made to Mr Joyce by the applicant was admissible. There was no realistic prospect of misuse of this evidence by the jury, even in that circumstance. The reliability of the applicant's admissions was squarely addressed at the trial and the jury had the benefit of expert evidence, Senior Counsel's closing address and the trial judge's directions.
The fact that the evidence was initially given in indirect speech is also irrelevant as Mr Joyce's evidence in cross-examination was given in direct speech. Had objection been taken to Mr Joyce's evidence it would have been admissible.
No miscarriage of justice can be shown by reason of the admission of this representation having regard to s 137 of the Evidence Act.

Application of Rule 4 to grounds 1-5

In ARS v R [2011] NSWCCA 266, Bathurst CJ summarised the relevant authorities regarding the effect of Rule 4 and observed the following at [148]: "… the following matters are important in considering the operation of r 4: The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. The applicant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21]. A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61]. An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]."
In the present case, very experienced Senior Counsel did not object at trial to any of the evidence the subject of grounds 1-5. There was a rational basis for that decision. That basis was that the evidence was admissible.
Even if, contrary to the conclusions we have reached, in the exercise of discretion, the trial judge could have been convinced to reject some or all of the evidence of the police officers, the evidence of Ambulance Officer Joyce was clearly admissible. Senior Counsel for the applicant at trial made a legitimate forensic choice not to object to any of the representations to attempt to engender, by all of the evidence, a reasonable doubt in the reliability of the applicant's admission to Ambulance Officer Joyce. Absent the context provided by the police evidence, that would have been an even more forensically challenging exercise for the applicant's counsel at trial.
For the reasons given in relation to each of the separate complaints made about the evidence at the trial, we are of the view that if objection had been taken, each of those pieces of evidence would have been admissible. In any event, it was clearly a legitimate forensic choice open to Senior Counsel for the applicant to conclude that, given that the jury would certainly hear the applicant's unequivocal admission made to Mr Joyce, the better course was not to object to the police evidence, or that of Mr Lala, and seek to demonstrate to the jury that the applicant was confused and thus an unreliable reporter about the critical issue in the case.
We are not satisfied that the applicant has lost either a real chance or a chance fairly open of being acquitted at trial by reason of the matters raised in grounds 1-5. No miscarriage of justice can be shown by reason of the admission of these representations. Accordingly, leave to rely upon grounds 1- 5 under Rule 4 of the Criminal Appeal Rules should be refused.

Grounds 6 and 8

Grounds 6 and 8 concern the conduct of the prosecutor in allegedly misusing the representations referred to in grounds 1 to 5, and stated: "6. A miscarriage of justice has occurred as a result of the prosecution inviting the jury to reason that the representations said to have been made by the Appellant to Constable Doroszuk (to the effect that he did not wish to say anything and that he would not say that he was the driver of the Corolla or incriminate himself) were evidence of a consciousness of guilt; … 8. A miscarriage of justice has occurred as a result of the prosecutor's cross-examination of Professor Brew and his closing address which suggested that certain representations said to have been made by the Appellant were calculated to avoid incriminating himself and thereby invited the jury to reason the representations were evidence of a consciousness of guilt."

Applicant's submissions

The applicant submitted that the Crown invited the jury to reason impermissibly from the representations made to Constable Doroszuk and others which denied or prevaricated about whether he was the driver of the vehicle were, in effect, representations made out of a consciousness of guilt.
The applicant drew particular attention to the Crown's use of the evidence that the applicant had denied or prevaricated about whether he was the driver and the cross-examination of Professor Brew.
Particularly regarding the representations made to Constable Doroszuk, the applicant emphasised that the Crown invited the jury to "note these things", despite the applicant's exercising of the right to silence.
The applicant submitted that the representations were not capable of being relied on as establishing a consciousness of guilt. This is because a representation can only be relied on for consciousness of guilt reasoning if it is capable of being established to be a lie by some evidence independent of proof of guilt of the offence (Edwards v R (1993) 178 CLR 193; [1993] HCA 63), and that could not be done in this case.

Crown's submissions

The Crown submitted that when the entirety of the Crown address about the witnesses Constable Doroszuk, Constable Shaw and Mr Marks is considered, it is apparent that the only way in which the Crown sought to rely on their evidence was in relation to the reliability of the applicant's representations. The Crown submitted that there was no invitation made to the jury to use that evidence as indicating a consciousness of guilt.

Consideration of grounds 6 and 8

No complaint was made by Senior Counsel for the applicant at the trial about these matters. Accordingly, leave is required under Rule 4.
Having considered the trial transcript referred to by the applicant, including the addresses of the Crown at trial and the cross-examination of Professor Brew, we have reached the conclusion that the only way in which the Crown sought to rely on the evidence of the witnesses Constable Doroszuk, Constable Shaw and Mr Marks and the expert Professor Brew, was in relation to the reliability of the applicant's representations at the scene of the accident. The Crown did not invite the jury to use that evidence as consciousness of guilt. Rather, what the Crown was seeking to do was to address the reliability of the applicant's answers by demonstrating that he was able to understand the questions being put to him and formulate coherent answers to particular questions.
In considering these grounds, the absence of complaint by Senior Counsel at trial and the absence of any remarks on the subject by the experienced trial judge is significant. If the Crown at trial was relying on the applicant's assertion of the right to silence as evidence of consciousness of guilt, the applicant's counsel would have complained and it is also likely that the trial judge would have raised the issue with the parties. The absence of such complaint or suggestion indicates that in the atmosphere of the trial, neither Senior Counsel for the applicant nor the trial judge understood the Crown to be relying on the applicant's assertion of the right to silence as evidence of consciousness of guilt. This accords with our conclusion having read the available material.
We are not satisfied that the applicant has lost either a real chance or a chance fairly open of being acquitted at trial by reason of the matters raised in grounds 6 and 8.
Leave to rely on those grounds should be refused under Rule 4.

Grounds 7, 9 and 10

Grounds 7, 9 and 10 are a corollary of grounds 6 and 8, addressed to the trial judge's summing up. No complaint was made by Senior Counsel for the applicant at trial about this aspect of the summing up and, accordingly, leave is required under Rule 4.
Grounds 7, 9 and 10 state that the trial judge failed to give appropriate directions in light of the prosecution's use of the representations said to have been made by the applicant. Those grounds provided: "7. The learned trial judge erred in failing to direct the jury that they were not entitled to reason that the Appellant made the Doroszuk representations because of a consciousness of guilt; … 9. The learned trial judge erred in failing to direct the jury that they were not entitled to reason that the Appellant made the Shaw representations or the Marks representations because of a consciousness of guilt; 10. In the alternative to ground 9, if the prosecution were entitled to rely on those representations as evidence of a consciousness of guilt, the learned trial judge erred in failing to give an Edwards v The Queen (1993) 198 CLR 193 direction (or any direction at all as to lies)."
The applicant identified three paragraphs in the trial judge's summing up which illustrate, it was submitted, that consciousness of guilt reasoning was referred to by the Crown, but not the subject of specific directions: "Mr Crown submitted to you that whenever the accused said something like, "I don't know", or "I don't remember", or "I'm not sure", you have to consider the fact that on the one hand that may be a genuine response but on the other hand it may be a calculated response of his not to answer the question that has been put to him. … As to questions about whether he was the driver, the initial answer, "No", it was submitted, coming as it did, after the conversation with Constable Doroszuk was, it was submitted, you might think simply a follow on from him not wanting to incriminate himself. … Mr Crown submitted to you that in dealing with Mr Marks, the accused appeared to understand what he was saying, he was obeying his questioning and doing what he was asking him to do… In relation to his answers about the mechanism of the incident, him saying he could not remember, Mr Crown submitted that that was a long time after, and whether or not [t]he accused at that stage was hedging his bets, or was in fact giving proper answers because at that point he was confused, the Crown could not say."
The applicant submitted that, given the manner in which the Crown relied on the representations, the absence of appropriate directions as to their use gave rise to a miscarriage of justice.

Consideration of Grounds 7, 9 and 10

As we have earlier found, when the whole of the Crown's closing address is considered, it is apparent that the Crown did not suggest that the applicant was lying, much less that he lied out of a consciousness of guilt.
None of the passages pointed to by the applicant, set out above, contain that suggestion. In the first passage, in context, the trial judge is addressing the jury about whether representations made by the applicant were sufficiently reliable to be taken into account. In the second passage, in context, the trial judge is addressing the ability of the applicant to understand and deal with the questions he is being asked. The third passage is, in context, addressing the evidence of Mr Marks, which was important to the case advanced on behalf of the applicant below about the unreliability of the answers he was giving to questions. The trial judge was not required to give an Edwards (or Zoneff v R (2000) 200 CLR 234; [2000] HCA 28) direction.
Even if the view were taken that a possible reading of the three passages above demonstrated that an Edwards or Zoneff direction could be given, no such direction was sought by experienced trial counsel. There was good reason for Senior Counsel taking that course. Defence counsel's address to the jury in this case is a powerful and cogent illustration of persuasive jury advocacy. The entire address focussed on the question of the unreliability of the representations made by the applicant and the dangers of too quickly rushing to convict her client. Perhaps the last thing, it may be inferred, that experienced defence counsel would want in the context of such an address is to have the trial judge give the jury a warning about what they must be satisfied of before finding that the applicant had lied and the use they could make of any lies they concluded had been told in reaching their decision. Such a warning, in the context where the Crown had not suggested that the jury should find that the applicant had lied at all, may have had very disadvantageous forensic consequences for the applicant's case by directing the jury's attention to the possibility that they should treat certain representations made by the applicant as lies.
If the Crown had raised the possibility that the applicant had lied at the scene of the accident, Senior Counsel for the applicant at trial would have addressed that topic in her address, as no doubt would the trial judge. The failure of Senior Counsel to raise the issue seems to have been appropriate or, at the very least, an available forensic choice.
Given the manner in which the Crown relied on the representations, the absence of an Edwards or Zoneff direction did not give rise to an arguable miscarriage of justice.
We do not consider that leave should be granted to raise this ground of appeal as we are not persuaded that there was such a departure from the essential requirements of the law that it goes to the root of the proceedings.
Leave to rely on grounds 7, 9 and10 should be refused.

Conclusion and orders

None of the matters agitated on this appeal had been the subject of objection or submission by Senior Counsel for the applicant at trial. Accordingly, Rule 4 of the Criminal Appeal Rules posed a hurdle for those matters being considered on appeal. For the foregoing reasons, we are not satisfied that the applicant lost either a real chance or a chance fairly open of being acquitted at trial by reason of the any of the matters raised in grounds 1-10. No miscarriage of justice can be shown in relation to the admission of these representations.
Accordingly, the order of the court is: Leave to appeal refused.

Amendments 09 May 2017 - Typographical error corrected in [16]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 May 2017

Law Enforcement Powers and Responsibilities Act 2002(NSW)

Crimes Act 1900(NSW)s 52A(2)

Evidence Act 1995(NSW)ss 85, 137, 138, 139

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