Bushby v The Queen

[2016] NSWCCA 205

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Bushby v R [2016] NSWCCA 205
Hearing dates:	5 September 2016
Date of orders:	28 September 2016
Decision date:	28 September 2016
Before:	Gleeson JA at [1]; Price J at [2]; Hidden AJ at [99]
Decision:	Appeal dismissed
Catchwords:	CRIMINAL LAW – conviction appeal – dangerous driving causing grievous bodily harm – failing to stop after an impact which caused grievous bodily harm – whether the verdict of the jury was unreasonable and could not be supported by the evidence – whether the Crown established beyond reasonable doubt that the appellant was driving the vehicle at the time of impact – identification evidence – post-offence conduct – lies – consciousness of guilt
Legislation Cited:	Crimes Act 1900 (NSW), ss 52A, 52AB Evidence Act 1995 (NSW), ss 165, 191 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 14
Cases Cited:	Libke v R (2007) 230 CLR 559; [2007] HCA 30 Sio v R [2015] NSWCCA 42
Category:	Principal judgment
Parties:	Brooke Bushby (Appellant) Regina (Respondent)
Representation:	Counsel: P Skinner (Appellant) N Williams (Respondent )   Solicitors: Armstrong Felton (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/94967
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 13 July 2015 Before: Blackmore SC DCJ File Number(s): 2014/94967

Judgment

1. GLEESON JA: Having reviewed the evidence, including in particular the matters to which attention was drawn by counsel for the appellant, I agree with Price J, for the reasons his Honour gives, that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the two offences charged. I agree that the appeal should be dismissed.

2. PRICE J: On 13 July 2015, following a trial in the District Court at Sydney before Blackmore SC DCJ (“the trial judge”) and a jury, Brooke Bushby (“the appellant”) was found guilty of one count of dangerous driving causing grievous bodily harm contrary to s52A(3)(c) Crimes Act 1900 (NSW) (“Crimes Act”) and one count of failing to stop after an impact which caused grievous bodily harm contrary to s52AB(2) Crimes Act.

3. It was an agreed fact at trial that Bhuman Soni (“the victim”) was struck by a Holden Calais motor vehicle registration number BF-44-NN as he was crossing a pedestrian crossing at the intersection of Maroubra Road and Garden Street, Maroubra on 19 October 2013. The central issue at trial was the identity of the driver of the car when it impacted with the victim. The question for the jury was whether the Crown had established beyond reasonable doubt that the appellant was driving the car at the time it hit the victim.

4. The appellant appeals her convictions on the ground that the verdict of the jury was unreasonable and cannot be supported by the evidence.

The trial

Agreed facts

5. Agreed facts were tendered pursuant to s191 Evidence Act 1995 (NSW) (“Evidence Act”) (Ex O).

6. In addition to the agreed fact referred to in [3] above, the parties agreed that as a result of the impact, the victim suffered a serious brain injury including a subarachnoid haemorrhage, a fractured knee, multiple lacerations and grazing. He was treated in the intensive care unit of St Vincent’s Hospital and was discharged on 18 November 2013.

7. The victim suffered significant cognitive function and body movement impairment requiring intensive rehabilitation, including physiotherapy, speech therapy, occupational therapy and cognitive assessments from 18 November 2013 to 11 December 2013. He continued to have problem solving skills, memory issues and issues with body movement. The victim’s speech was affected to the extent that he could not speak as fast as he used to and has trouble pronouncing some words.

Evidence of police officers

8. At about 6:00pm on 19 October 2013, Senior Constable Rowan and Constables Meredith, James and Murrell attended Marine Parade, Maroubra Beach in response to a radio broadcast regarding the behaviour of a number of males at the beach. Approximately 12 men were standing around a number of parked cars consuming alcohol. The four constables approached the men and Constable Rowan spoke to them about their behaviour. One male, James Rowley (also known as James McCarthy) (“Rowley”), appeared to be significantly more intoxicated than the other males. Rowley became argumentative with Constable Rowan and the other males in the group. Constable Rowan told the group to leave and one male responded that they were leaving now.

9. The four constables then observed an altercation between Rowley and another male. They separated the men and were speaking to Rowley when the appellant and Louise Bodeker (“Bodeker”) approached Constables Rowan and Meredith. The appellant appeared to be “well affected” by alcohol, had bloodshot eyes, smelt strongly of alcohol, was unsteady on her feet and was slurring her words. Bodeker was standing next to the appellant and did not say anything. She appeared to be sober, was approximately 30 years old, five foot three and of skinny build with long, sandy blonde hair tied back in a ponytail.

10. The appellant repeatedly stated to Constable Rowan, “He’s my husband. I’ll take care of him. I’ll make sure that he gets home.” She added that her friend was driving her car and that she would get her husband home in that. Not long afterwards, a gold-coloured Holden Commodore with registration number BF-44-NN stopped on the southbound side of Marine Parade. Constable Meredith heard Bodeker, who was driving, yell out to the appellant and Rowley to get into the car. Bodeker appeared to be angry with Rowley. At that time, the front passenger side window was down. Constable Rowan told the appellant to get in the car and leave the area. Constable Meredith then saw the appellant get into the front passenger seat while Rowley got into the rear passenger seat. Two young children were also in the rear of the car. The car drove south along Marine Parade before completing a U-turn about fifty metres away and heading north along Marine Parade.

11. While the four constables were waiting at Marine Parade to ensure the remaining men were leaving the area, they received a radio broadcast regarding a pedestrian being hit by a motor vehicle on Maroubra Road. In his statement, Constable Murrell said, “police radio then described a vehicle matching the description of the gold Commodore that we had only dealt with moments earlier to have collided with a pedestrian” (Tcpt, 7 July 2015, p 83(13-15)). Attending Maroubra Road, the constables observed an unconscious man being attended to by a doctor and a bumper bar on the road with registration number BF-44-NN. Constable Meredith was approached by a man at the scene who informed him that the car they were concerned with was parked in Astoria Circuit, Maroubra.

12. Constables Abela and Schofield drove to Astoria Circuit where they saw a gold-coloured Holden Commodore with registration number BF-44-NN. The car had extensive damage to its front and was missing its front bumper bar. The car was unattended but shortly after police arrived, Rowley walked up to the car and started looking at it. He appeared to be intoxicated, smelling of alcohol and slurring his words. Constable Abela was speaking with Rowley when the appellant and Bodeker appeared. She heard Rowley speaking aggressively towards the women, swearing and telling them to go away.

13. Constable Smith, who arrived at the scene after Constables Abela and Schofield, heard Rowley say to the appellant, “I’ll cop the blame, don’t tell them anything”. At this, the appellant yelled, “It wasn’t even us driving the car, it was… some Abo cunt.” Constable Smith thought that the appellant was affected by alcohol; in cross examination, he agreed that it was possible that the appellant was intoxicated by something other than alcohol.

14. Constable Abela spoke with Bodeker and the appellant, who had two small children with her. The appellant was wearing a white t-shirt and shorts and had dark coloured hair tied back in a ponytail.

15. Approximately 30 minutes later, Constables Rowan and Meredith joined Constables Abela and Schofield. Constable Rowan told the appellant that they were there because they suspected her car had been involved in a collision at Maroubra Road. The appellant replied, “I don’t know what you’re talking about. I was at Bondi Junction and I just got back here.” Constable Rowan pointed out that he had been at Maroubra earlier and had seen her in the car, to which the appellant replied, “I was at Bondi Junction. I don’t know what you’re talking about”, adding, “You guys are all fucked. I don’t fucking know what you’re all about.”

16. The appellant was extremely argumentative, swore at and abused police. After a number of warnings about her behaviour, Constables Abela and Schofield forced her to the ground and restrained her. The appellant kicked and spat at them before being arrested and placed in a caged police truck. She appeared to be intoxicated, was unsteady on her feet, with bloodshot eyes and was slurring her words.

17. Constable Smith also attended the scene and spoke to the appellant about her movements that day. The appellant said that she had been at Bondi with her kids and then said something about being in Maroubra with the boys and giving one of the boys the keys. Asked by Constable Smith to whom she gave the keys, the appellant replied, “I’m not ratting on them, I’m not telling you.”

18. Constable Rowan spoke with the appellant when she was in the back of the caged police truck. He informed her that he needed to obtain a form of demand from her regarding a motor vehicle collision on Maroubra Road. The appellant replied, “Well I don’t fucking know anything, so let’s get it over and done with.” She was read a form of demand pursuant to s14 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) in relation to the collision requesting that she identify the driver of the car. The appellant said, “I wasn’t driving the car. Me and Louise went and met them. Don’t ask me who was driving the car because I don’t know...” Constable Rowan said that the appellant was more sober than when he saw her at Marine Parade; she was not slurring her words when she was yelling, although her eyes may have been bloodshot.

19. The appellant was taken to Prince of Wales Hospital where blood and urine samples were taken before being conveyed to Maroubra Police Station where she was placed in custody in relation to an offence of offensive language.

20. Exhibits U and V were tendered. Exhibit U is a full face photograph of the appellant taken when she was in custody on 19 October 2013. The photograph was shown to various witnesses during police photographic identification procedures. Exhibit V contains two stills of the appellant taken from CCTV footage near the cell area at Maroubra Police Station on 19 October 2013. The photograph shows the appellant wearing the same clothes she was wearing at the time of her arrest, shorts and a white shirt, and she appears to have dark brown hair tied in a ponytail.

21. A photograph of Bodeker taken by Constable Abela at Astoria Circuit on the evening of 19 October 2013 was tendered and marked Exhibit 2.

Louise Bodeker’s evidence

22. On 19 October 2013, Bodeker saw the appellant in her car with her two children at South Coogee. The appellant and Bodeker decided to join their partners at Maroubra Beach and the appellant drove them there.

23. At Maroubra Beach, Bodeker drank something in a blue can; she thought she had one or two drinks. The appellant drank a “small amount”; they were not there for long. In cross-examination, Bodeker said that she did not know that the appellant had had more than one can and did not see her take Xanax.

24. After police arrived at the beach, the appellant, Rowley and the appellant’s children left with Bodeker. The appellant drove with Bodeker seated in the front passenger seat.

25. When the car was on Maroubra Road, Bodeker thought there was a green light and heard a thump. She could not recall anyone saying anything in the car afterwards.

26. The appellant drove on to Anzac Parade where she stopped the car and got out of the driver’s seat. Rowley then drove the car to Astoria Circuit where everyone got out of the car. The same police who had been at Maroubra Beach earlier arrived at Astoria Circuit shortly afterwards.

27. In cross-examination, Bodeker said that she did not pay any notice to the thump; she wasn’t driving at the time. She denied driving the car, hitting the pedestrian and hitting another car. She said, “we apparently hit a car and I don’t recall running into a pedestrian, and I don’t recall any green or red light.” She agreed that the car was stopped in Astoria Circuit and that she used to live there but denied driving there. She said her sunglasses were found on the passenger floor side of the car. She agreed that both the appellant and Rowley were intoxicated but denied driving the car. She said that there had been an argument at the beach “between the boys” who had tried to stop the appellant from driving but the appellant would not do so and “they let it go”; the appellant wasn’t listening to anybody.

Eyewitness evidence

Joshua Matthew and Kaitlin Inkley’s evidence

28. Just before dusk, at around 6:30pm, Joshua Matthew (“Matthew”) and Kaitlin Inkley (“Inkley”) were driving from Maroubra Beach towards Maroubra Junction. They had stopped at a set of traffic lights at the intersection of Maroubra and Malabar roads when they saw a beige-coloured Holden Commodore drive very fast through a red light and almost collide with a truck driving along Malabar Road towards him. Part of the Holden’s bumper bar appeared to be loose. Both the Holden and the truck braked and the truck honked its horn.

29. Matthew noticed two people seated in the front of the Holden: a female driver with slightly curly, light brown or blond streaked hair and possibly a male in the passenger seat, whom he did not take notice of. In cross-examination, Matthew agreed that he did not tell police that he thought the front passenger was male, adding that he could not confidently say that it was a male, but thought it was.

30. Inkley saw the driver and passenger of the Holden, which was in front of them, in the middle of the intersection with its front windows down. The Holden had slowed down as it had almost hit the truck. Inkley saw that the driver was female with brown hair with blonde streaks, tied back in a ponytail that reached to her shoulders and was wearing sunglasses. The passenger in the Holden, who was closest to Inkley, was a white male, possibly with black hair, wearing a white top, possibly a singlet. In cross-examination, Inkley agreed that her view of the male passenger happened fast, and that she was confident that she saw black hair and a white top. She saw the front bumper bar of the Holden was loose and flapping about.

31. Both Matthew and Inkley lost sight of the car as it travelled along Maroubra Road towards Anzac Parade at a faster rate than their car.

32. Passing an intersection at Maroubra Road, Inkley saw that there appeared to have been an accident and a person was lying on the road. Inkley saw a bumper bar lying across two lanes, near the intersection. On Maroubra Road near Anzac Parade, she also saw a Toyota that appeared to have been in an accident. Matthew and Inkley spoke with the driver of the Toyota. Inkley then telephoned the police.

33. On 18 December 2013, Matthew and Inkley participated in separate police photographic identification procedures. Both selected photographs which they thought looked like the driver, but did not identify the appellant.

Silvia Macchi’s evidence

34. At about 6:30pm on 19 October 2013, Silvia Macchi (“Macchi”) was approaching the intersection of Maroubra Road and Garden Street when she saw a man crossing the road. The man was walking inside the pedestrian crossing area and stopped for a fraction of a second in the middle of the road before continuing to cross. As the man stepped past the middle of the road, Macchi saw him get hit by a car, flying in the air and landing on Macchi’s side of the road. She recalled seeing cars coming towards her in the opposite direction but did not remember what colour the traffic light was for the oncoming traffic. She assumed that the light was green because the cars were coming towards her when the man was hit. Stopping to provide assistance, Macchi observed that the man appeared to be unconscious and was bleeding from the back of his head with fluid coming from his mouth and possibly his ears.

Niklas Larsson’s evidence

35. On 19 October 2013, Niklas Larsson (“Larsson”) stopped at traffic lights on Maroubra Road and was waiting to turn left onto Garden Street when he saw a metallic beige-gold coloured Commodore driving west along Maroubra Road drive through a red light. The car did not appear to be speeding but was travelling at a steady speed. A man crossing the intersection had stepped off the median strip when the Commodore drove through the red light and hit him, causing him to fly through the air and land on the other side of the road. The car’s brakes came on briefly but the car continued to drive, driving over its own bumper bar. Larsson saw the car’s brakes go on again before it drove off. His view of the accident was unobstructed.

Danielle Galea’s evidence

36. Danielle Galea (“Galea”) was parked on Maroubra Road when she heard a “big bang” coming from the direction of the traffic lights across the road. Looking towards the direction of the noise, Galea saw a Commodore travelling along Maroubra Road towards Anzac Parade. She saw that the car’s bumper bar was missing and an airbag had gone off in the driver’s face. She placed the car about 500 metres to her left. The front windows of the car were open, a woman was driving the car with a passenger in the front and there were two figures in the rear of the car.

37. The driver appeared to be an Islander of medium build with olive skin and longish black, straight hair reaching to the middle of her back. She was wearing silver and black bracelets/bangles on her right arm which was resting on the edge of the door. The passenger was a male with short black hair, muscular build and wearing a singlet, possibly black.

38. In cross-examination, Galea said that she did not see anyone wearing white. She agreed that she observed the occupants of the car for a couple of seconds. Galea disputed the proposition put to her in cross-examination that the male person was not in the rear passenger seat but the front seat.

39. Galea saw the car move into the left lane as it drove towards Anzac Parade. It did not slow down and crashed into a car at the lights on Anzac Parade which were red at the time. Galea estimated that the car was travelling between 40-50km/h. She saw a man lying on the road and called Triple zero.

40. In early December 2013, Galea participated in a police photographic identification procedure but was unable to recognise the driver of the car.

David Halcro’s evidence

41. Sometime after 6:00pm on 19 October 2013, David Halcro (“Halcro”) was crossing Maroubra Road, close to the median strip, when he saw a gold-coloured Holden with its fender hanging off hit another car, then reverse backwards and turn into Anzac Parade heading towards La Perouse. Halcro thought the car’s windows were down as it passed him. He saw that there were about five people in the car, that a young teenage boy was in the back seat and that the driver had dark hair and a dark complexion. He did not see if the driver was male or female.

42. In early December 2013, Halcro participated in a police photographic identification procedure but was unable to recognise the driver of the car.

George Ku’s evidence

43. At about 6:40pm on 19 October 2013, George Ku (“Ku”) was driving his Toyota Echo along Maroubra Road, approaching Anzac Parade. As Ku slowed to turn into Anzac Parade, he looked through his rear view mirror and saw a Commodore that appeared to be driving too fast. The Commodore collided with the rear of his car, drove around him then turned left into Anzac Parade. The car’s registration number was BF-44-NN. Ku did not see who was driving or how many passengers were inside.

Telephone call to the Police Assistance Line

44. On 21 October 2013, a caller identifying herself as the appellant telephoned the Police Assistance Line. A CD recording was played in court and a transcript of the telephone call was provided to the jury (Ex Q).

45. The caller advised that she had been in custody over the weekend and that her car (a Holden Calais with registration number BF-44-NN) had been stolen while she was in custody. The caller said that the last time she saw her car was at Maroubra Beach at about 3:00pm on 19 October 2013, when she left it parked on Marine Parade.

46. The caller was asked if she was involved in an accident, and she replied, “No, no, no, I, I just that, my car wasn’t there. I was in custody and then when I got out I went to go back to the car and it wasn’t there.” She was asked when she was taken into custody and replied that it was about 5:00pm that day. The caller was advised that she would need to report this to the police station; she said that she would report the matter to Maroubra Police Station.

The appellant’s attendance at Maroubra Police Station

47. Around 12:00pm on 21 October 2013, the appellant attended Maroubra Police Station, spoke with Constable Donoghue and reported her 2001 champagne-coloured Holden Calais with registration number BF-44-NN stolen. She made the following statement which was recorded by Constable Donoghue in his official notebook:

“… (3) About 11am on Saturday 19th October 2015 I parked my vehicle on Marine Parade Maroubra. I am not sure whether I locked the vehicle or not.

(4) About 5pm on the same day I returned to the car park where I had parked my car and I could not find my car.

(5) I have one spare key for the vehicle which no one has access to because it is my only key to the vehicle.

(6) After I had realised the car was gone I rang my father to come pick us up.

(7) I do not have insurance for the vehicle. I did not give anyone permission to take my car from the car park.

(8) I have not located the car. I had a look around the area but could not find the car…”

Police investigation

48. On 19 October 2013, police employed with the crash investigation unit were called out to the scene of the accident. Senior Constable Rugendyke attended the scene as part of the crash investigation unit. She observed that Maroubra Road was well lit with a 60km/h speed limit, conditions at the time were dry and the traffic signals were operating in proper sequence.

49. The following observations were made in relation to the appellant’s car:

1. There was no airbag installed in the car.

2. The front driver’s side window was about three quarters down.

3. There was dried fluid on the lower section of the front driver’s window running onto the window and door rim. Constable Rugendyke concluded that the dried fluid (possibly saliva) had most likely come from the victim after the head strike to the windscreen and that the window was in the open position at the time of the accident as there was no break to the line of fluid.

4. The car, which was fairly dirty on the outside, had an area of paint where the dirt had been smeared due to the impact of someone or something hitting the car’s bonnet.

5. The rear near side window was almost fully wound down and the rear off side window was wound down approximately halfway. The front near side (passenger) window was fully closed. It was not possible to comment on the positions on those windows at the time of the collision.

6. A subsequent inspection of the vehicle in a police holding yard failed to find any apparent defect which could have contributed to the accident.

50. The front bumper bar (registration number BF-44-NN) located at the scene of the accident was taken by the crash investigation unit to Astoria Circuit and fitted to the Holden bearing that registration plate.

51. Some days after the accident, Constable Rugendyke drove a police station wagon through the traffic lights at approximately the same time as the collision and came to the conclusion that the sun was not a factor which would hinder a driver’s vision at that time.

52. At trial, the Crown tendered a map of Maroubra Junction and Maroubra Beach (Ex A). The map was marked with a red line to indicate the path the appellant’s car took and six highlighted points to indicate where certain events happened.

The appellant’s closing address

53. The appellant did not give or call evidence at the trial. Her case was that she was not the driver of the car at the time of the accident and that Bodeker was driving.

54. In his closing address, the appellant’s counsel told the jury that Bodeker’s evidence that the appellant was the driver could not be relied upon. He pointed to the discrepancy between Bodeker’s evidence that the appellant drove from Maroubra Beach and the evidence of the police officers present at the beach that Bodeker was driving as the car left the beach. He also pointed to the evidence that the appellant sat in the front passenger’s seat and Rowley sat in the rear passenger’s seat.

55. The appellant’s counsel noted the lack of evidence as to the passengers and the driver swapping seats between when the car left the beach and when Matthew and Inkley saw it drive through the intersection of Maroubra and Malabar roads. He put to the jury that there was insufficient time or distance for the passengers and driver to swap seats.

56. The appellant’s counsel conceded that parts of the identification evidence were not favourable to his client’s case. However, he referred to other matters which included:

1. Bodeker’s sobriety, Rowley’s intoxication and the presence of their children in the car;

2. the failure of any eyewitness to identify the appellant;

3. the evidence as to the driver’s race, hair, hair colour and skin colouring;

4. Inkley’s evidence that the front passenger, whom she thought was male, was wearing a white top which coincided with the clothing worn by the appellant on the night; and

5. inconsistencies in Bodeker’s evidence, including her statement that she never drove the car and that she did take any notice of the victim hitting the car nor the bumper bar being torn off the car.

57. The appellant’s counsel referred to Galea’s evidence that the driver was wearing bangles. He pointed out that Bodeker was wearing bangles on the night but the appellant was not.

58. He argued that the lies the appellant told after the accident could as easily be lies arising from a consciousness of Bodeker’s guilt, rather than her own.

Summing up

59. Although there is no criticism of the trial judge’s directions to the jury, it is useful to summarise his Honour’s summing up.

60. The trial judge instructed the jury that they were the sole judges of the facts, that it was a matter for them to decide who was telling the truth and they were not obliged to accept the whole of a witness’ evidence but could accept part and reject part of that evidence.

61. The trial judge told the jury that the onus to prove the guilt of the appellant was placed firmly on the Crown beyond reasonable doubt and it was not for the appellant to prove her innocence. He pointed out that the question for the jury was whether the appellant actually got behind the wheel of the Calais and drove it to the point of impact with the victim. His Honour said: “Putting it another way, is it reasonably possible on the evidence that someone other than the [appellant] was driving that vehicle?” (Tcpt, 13 July 2015, p 21)

62. His Honour referred in some detail to the eyewitness evidence. He said there was only limited evidence of witnesses who purport to see the driver. Whilst reminding the jury of Galea’s evidence, his Honour noted that there was no contest that a photo indicated that the airbag of the Calais had not gone off (Ex S) .

63. When referring to the evidence of Bodeker, his Honour emphasised that the jury should consider whether she was, in fact, the driver of the vehicle, and that if Bodeker was driving then she might have reasons for not telling the truth. His Honour told the jury that they needed to exercise caution in accepting Bodeker’s evidence. The trial judge reminded the jury of Bodeker’s evidence that she had little actual memory of the impact itself and to the appellant’s submission that this lack of memory was suspicious and Bodeker’s evidence would not be accepted.

64. The trial judge reminded the jury that the Crown accepted from the police evidence that Bodeker drove away from the beach and not the appellant, that it was the Crown’s case that Bodeker got out of the driver’s seat at some point and that the appellant got into the driver’s seat.

65. His Honour referred to Constable Murrell’s statement that the impact happened only a few moments after police had seen the vehicle leave the beach and the appellant’s submission that there was no time to do the swap. His Honour said that the descriptions relied on by the Crown did make the swap possible, that they were talking about someone with dark hair, but there was also powerful evidence to the contrary.

66. His Honour went on to refer to the statements made by the appellant. He referred to Constable Meredith’s evidence of the appellant’s response to his request to disclose the identity of the driver and to Constable Smith’s testimony of the conversation between Rowley and the appellant. The trial judge then referred to the recording of the appellant’s telephone call to the Police Assistance Line (Ex Q), that it was the Crown case that the appellant was telling the police a deliberately false story, and that she made that call and later made a statement to the same effect to the police because she was the driver of the vehicle.

67. The trial judge gave the jury a direction about lies. His Honour explained what a lie was. He then warned them about the care with which they must approach the task of deciding what significance, if any, that lie has, if they found that the appellant made the statement he had referred to earlier and they found it was a lie. His Honour went on to say (Tcpt, 13 July 2015, p 24-25):

“You may take this lie into account as evidence of the accused’ [sic] guilt, but you can only do it if you find two further things which I will refer to shortly.

When I say you can take it into account as evidence of the accused’ [sic] guilt, I am not suggesting that you could use it to prove guilt alone. What I mean is that it can be considered along with all of the other facts in the Crown case which ultimately you find established by the evidence.

A lie on its own can never prove the guilt of the accused to the standard beyond reasonable doubt. Apart from the fact that the accused made the statement, and that it amounted to a deliberate lie, the two further things you must decide are these.

First you must find that what the accused said that amounts to a lie relates to an issue that is relevant to the offence the Crown alleges that the accused committed, it must relate to some significant circumstance or event connected with the alleged offence. The Crown says that it is relevant here because there could have been no other purpose in lying about the car being stolen other than the accused attempting to distance herself as the person driving it.

Secondly you must find the reason the accused told this lie is because she feared that telling the truth might reveal her guilt in respect of the charge. In other words she feared that telling the truth would implicate her in the commission of the offence.

The Crown says you would be satisfied of that because if she was not driving there was simply no reason to speak to the police at all about this.

You must remember however that people do not always act rationally and that conduct of this sort, that is telling a lie, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal their own guilt. For example to protect some other person, alternatively perhaps due to her level of intoxication on the night of the 19th, she might genuinely have believed that the car had been stolen.

If you think that the lie may have been told for some reason other than to avoid being implicated in the commission of the offence for which the accused is now on trial then it cannot be used as evidence against the accused in deciding whether she is guilty or not. If that is the case you should simply put it to one side and focus on your deliberations in respect of the other evidence in the case.”

68. His Honour referred to the Crown’s submission that the appellant’s statement, “some Abo cunt”, was clearly a lie and an attempt to nominate someone else, other than herself, as the driver of the car. He emphasised that before the jury could take the statement into account as a lie and use it in respect of guilt, they needed to bear in mind the directions he had already given.

69. His Honour reminded the jury of the Crown’s submission that when you add the lies told with the identification of a woman with dark hair driving the car, with the evidence of Bodeker, there was no reasonable doubt that the appellant was driving the car at the point of impact, and consequently, they should find the appellant guilty of both charges.

70. His Honour then reminded the jury of the appellant’s submission that the evidence of identification was so weak that they could not be satisfied beyond reasonable doubt that it was the appellant who was driving the car at the time of impact and any statements made after the event did not change the fact of what was actually seen in the car at the time.

71. His Honour directed the jury that the appellant’s silence in court and her election not to call evidence could not be used against her in any way. His Honour warned them about speculating what the appellant might have said had she given evidence or what somebody else might have given in evidence had they been called. He emphasised that the Crown bore the onus of proof beyond reasonable doubt for both charges.

72. At the request of the appellant’s counsel, the trial judge reminded the jury that none of the witnesses positively identified the appellant from any of the photographs.

Submissions

Appellant’s submissions

73. The appellant submitted that the identification evidence from the Crown’s civilian witnesses was dangerously weak and not enough on its own to prove beyond reasonable doubt that the appellant was the driver of the car. The appellant contended that the descriptions, particularly of the wrist bangles (Galea), the brown/blonde hair (Matthew and Inkley) and the dark complexion (Halcro), were more consistent with Bodeker being the driver. The photo array procedure used with Matthew, Inkley, Galea and Halcro did not identify the appellant.

74. As to the Crown case that Bodeker drove away from the beach and a short time later, the car pulled over and Bodeker swapped with the appellant, it was submitted that there was no direct evidence supporting a swap and the Crown was obliged to establish beyond reasonable doubt that there had been. The appellant argued that there was neither the opportunity nor the time to pull over and swap drivers. The appellant referred to the map (Ex A) and to Constable Murrell’s evidence that the accident occurred on Maroubra Road after the car left the beach “moments earlier.” The appellant questioned why Bodeker, the only sober adult in the car, would let the appellant take over driving to the risk of herself and the other passengers (including children).

75. Bodeker’s evidence that she “sort of, heard a thump” when the car collided with the victim was described by the appellant as “quite unbelievable”. The car’s front windscreen was smashed, the front bumper was torn off and bystanders within earshot were alerted to the collision. The appellant submitted that Bodeker had been lying and her credit could not be relied upon.

76. It was submitted that the jury must have been convinced beyond reasonable doubt that the appellant was the driver almost solely because of the appellant’s statements to the Police Assistance Line and to Constable Donoghue. The only rational explanation for the appellant’s attendance at Maroubra Police Station on 21 October 2013 was said to be that she was in such a state at the time of the collision that “she really had zero memory.” The appellant referred to Constable Smith’s evidence which suggested that she was intoxicated and perhaps affected by something else on the night of the collision.

77. Another argument was that the alleged false statement to Constable Rowan was much less inculpatory; the appellant was intoxicated and she was undoubtedly aware that she and Bodeker were in trouble and she was trying to protect everyone involved. It was submitted that her “supposed adoption” of the statement in Constable Donoghue’s official notebook, given her state at the time, was extremely fragile.

78. The appellant argued that the jury must have ignored or been confused by the trial judge’s direction that an alleged lie used by the Crown to infer consciousness of guilt cannot prove guilt on its own. It was submitted that this was a clear case of a verdict that cannot be supported to the required standard upon the evidence and was unreasonable. The appellant submitted that the appeal should be allowed and the convictions quashed.

Crown submissions

79. The Crown submitted that in looking at the totality of the evidence, its nature and quality, the jury ought not to have experienced a reasonable doubt as to the guilt of the appellant.

80. It was submitted that the Crown’s case of identification was based on a combination of the sworn evidence of Bodeker, a direct eyewitness who squarely placed the appellant as the driver of the car at the time of the collision, and other witnesses who gave brief descriptions of a female driver, largely focusing on the colour of her hair. That evidence was supported by the appellant’s false statements to police about her car having been stolen at the time of the collision.

81. The Crown submitted that it was of paramount importance that the various eyewitnesses identified the driver at the time of the collision as female. Bodeker and the appellant were the only two females in the car; the driver at the time of the collision was either one or the other.

82. The jury had the benefit of the sworn testimony of Bodeker who repeatedly denied that she was the driver; rather, she said that she was seated in the front passenger seat. She supported her position by the fact that her sunglasses were found in the foot well of the front passenger seat.

83. The Crown pointed to the eyewitness evidence:

1. Matthew’s description of the driver was more consistent with the appellant, particularly in combination with the photo of the appellant taken later on the evening of the collision (Ex U).

2. Inkley’s description of the driver as having brown/blonde hair was inconsistent with the appearance of Bodeker on the evening of the collision as having blonde hair, as her hair could not be described as brown.

3. Inkley’s description of the driver’s brown shoulder length hair in a ponytail was more consistent with the appellant’s appearance than Bodeker’s appearance.

4. Police described the appellant as wearing her hair in a ponytail when they spoke to her at Astoria Circuit. The appellant’s arrest involved significant resistance, and this may explain why the appellant’s ponytail appears partly up and loosely sitting around her shoulders by the time her photograph was taken.

5. Bodeker appears to have a very fair complexion in the photograph taken at Astoria Circuit (Ex 2). Galea described the driver as having an olive complexion and to be of Islander appearance. Halcro described the driver as having dark hair and a dark complexion. Bodeker could not be described in this way, and there was accordingly strong evidence to discount Bodeker as the driver.

84. The trial judge directed the jury that it was their task to assess the witnesses and to decide if they accepted a witness’ evidence or not. They were told by the trial judge that they could accept part or reject part of a witness’ evidence. The Crown submitted that this direction assumed particular importance in that some aspects of the various eyewitnesses’ accounts were mistaken. It was submitted that the jury was alive to this direction and appropriately complied with it.

84. In addition, the appellant had the advantage of a direction made by the trial judge in accordance with s165 Evidence Act. His Honour told the jury that if Bodeker was the driver, she may have reasons for not telling the truth; the jury would need to exercise caution in accepting Bodeker’s evidence in that regard. The trial judge also pointed out some of the frailties in Bodeker’s evidence, including that she had little memory of the collision and the submission of the appellant’s counsel that this was suspicious.

85. As to the appellant’s contention that there was no evidence to support the Crown’s submission that there was a swap between Bodeker and the appellant, the Crown pointed to the map of the area which showed a distance of approximately 1.6 kilometres from the point where the car left the beach until the point of impact with the victim (Ex A). There was a sharp left hand turn in the road approximately 150 metres north-east of the point where the car left the view of police and a further 600 metres of relatively straight road before the point of impact. This would have allowed any subsequent change of drivers to take place out of sight of the police and well before Matthew and Inkley observed the driver and a male in the front passenger seat.

86. The Crown argued that the appellant’s lies enhanced the eyewitnesses’ identification evidence. The Crown pointed to the appellant’s assertion that an unidentified third party had stolen and was driving the car when questioned by police officers at Astoria Circuit. That lie was, according to the Crown, emboldened when the appellant soberly repeated the lie to the Police Assistance Line and to Constable Donoghue. It was those matters that the jury had the opportunity to assess in accordance with the trial judge’s lies direction.

Consideration

88. In Sio v R [2015] NSWCCA 42, Leeming JA summarised the legal principles applicable to an unreasonable verdict ground of appeal. His Honour said at [40]:

“This proposed ground of appeal invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question on appeal is whether “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen [1994] HCA 63; 181 CLR 487 at [7]; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]; Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 at [31]-[34]. This being a question of fact, it is necessary for the Court to decide by making its own independent assessment of the whole of the evidence: M v The Queen at [63]; SKA v The Queen at [14] and [20], while having regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and which has had the benefit of having seen and heard the witnesses: M v the Queen at [7]; SKA v The Queen at [13].”

89. In Libke v R (2007) 230 CLR 559; [2007] HCA 30, Hayne J (with whom Gleeson CJ and Heydon J agreed) emphasised (at 596-597) that the question is whether the jury must, as distinct from might, have entertained a reasonable doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

90. It is true that apart from Bodeker, the identification evidence was not enough to establish that the appellant was driving the car at the time of impact. None of the witnesses who participated in the police photographic identification procedure were able to recognise the driver of the vehicle. However, Matthew, Inkley and Galea testified that the driver was a female, whereas Halcro and Ku were unable to say if the driver was male or female. It is common ground that the only females in the car were Bodeker and the appellant. Bodeker told the jury that the appellant was the driver.

91. The jury needed to exercise caution before accepting Bodeker’s evidence for the reasons given by the trial judge. An important consideration for the jury in assessing the honesty and reliability of her evidence was the Crown’s acceptance that she was not telling the truth when she said that she had not driven the vehicle away from the beach. However, the jury not only had the benefit of assessing her evidence but there was support for her testimony that the appellant was the driver from descriptions given by Galea and Halcro. It was open to the jury to conclude that this evidence pointed to the appellant and not to Bodeker. The jury had the photograph of Bodeker that was taken at Astoria Circuit (Ex 2) and the photographs of the appellant taken whilst she was in custody (Exs U and V). Moreover, the jury had the opportunity of closely observing Bodeker and the appellant during the trial. The evidence of Bodeker could not be said to be wholly unreliable.

92. Furthermore, these descriptions of the driver provide support for the Crown case that Bodeker and the appellant swapped after Bodeker drove from the beach and prior to the impact with the victim.

93. It was the Crown case that this evidence was not to be viewed in isolation but in combination with the appellant’s conduct after the vehicle hit the victim.

94. The appellant’s responses to the police officer’s request to disclose the identity of the driver and her statement that “some Abo cunt” was the driver were capable of being regarded by the jury as deliberate lies to conceal from police the fact that she had been the driver. Even if the jury considered that the appellant’s conduct shortly after the offence might have been explained by her level of intoxication, there remained the telephone call to the Police Assistance Line and her attendance at Maroubra Police Station three days after the accident.

95. It was open to the jury to conclude that the efforts she made to establish that the car had been stolen prior to the accident arose out of a consciousness of being the driver and were lies told to avoid being charged with the offences for which she stood trial.

96. The jury had the advantage of seeing all of the witnesses who gave evidence in the trial. They were in a position to assess the honesty and reliability of Bodeker’s evidence, knowing that the Crown accepted that she had driven the car away from the beach. In accordance with the trial judge’s directions, it was for the jury to assess the evidence of a witness and to accept or reject what a witness told them either in whole or in part. It was not unreasonable for the jury to accept Bodeker’s evidence that the appellant was the driver at the time of impact.

97. Upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of dangerous driving causing grievous bodily harm contrary to s52A(3)(c) Crimes Act and one count of failing to stop after an impact which caused grievous bodily harm contrary to s52AB(2) Crimes Act. I am not persuaded that the jury must have been left with a reasonable doubt as to the appellant’s guilt.

98. For these reasons, I propose that the appeal be dismissed.

99. HIDDEN AJ: I also agree with Price J.  Undoubtedly the prosecution case was not without its problems but, examining the evidence as a whole, I am not persuaded that they were such as to warrant the conclusion that the jury should have had a reasonable doubt.

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Decision last updated: 28 September 2016