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

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.
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.
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.
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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bushby v The Queen

Details

AGLC: Bushby v The Queen [2016] NSWCCA 205
Case: [2016] NSWCCA 205
Decision Date: 28 September 2016

CaseChat Overview and Summary

The appeal by the appellant, Bushby, against his conviction for dangerous driving causing grievous bodily harm and failing to stop after an impact which caused grievous bodily harm was heard in the High Court of Australia. The central issues in the appeal were the reliability and sufficiency of the evidence presented by the Crown to establish the appellant's identity as the driver and his post-offence conduct. The appellant contested the reliability of the identification evidence, particularly the identification by a witness who claimed to have seen the appellant driving the vehicle. Additionally, the appellant argued that his failure to stop and provide assistance to the injured party was not evidence of his guilt but rather a result of his post-traumatic shock and confusion.

The court examined the identification evidence closely, considering the circumstances under which the witness identified the appellant and the potential for misidentification. The court also analysed the significance of the appellant's post-offence conduct, including his departure from the scene and subsequent lies about his involvement. The court concluded that the jury's verdict, while not without difficulty, was not unreasonable and was supported by the evidence. The court found that the Crown had established beyond reasonable doubt that the appellant was the driver of the vehicle at the time of the impact, despite the challenges to the identification evidence. The court also considered the appellant's post-offence conduct, including his lies and consciousness of guilt, which contributed to the overall reliability of the evidence against him.

Ultimately, the appeal was dismissed, and the conviction was upheld. The court found that the evidence, when considered in its entirety, was sufficient to support the jury's verdict. The court emphasised the importance of the identification evidence and the appellant's post-offence conduct in reaching its decision. The final orders of the court were that the appeal be dismissed, and the conviction and sentence imposed by the lower court were to stand.

Orders