R v Bozzola

Case [2001] NSWCCA 8

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION:     R v Bozzola [2001]  NSWCCA 8

FILE NUMBER(S):
60222/00

HEARING DATE(S): 07/02/00

JUDGMENT DATE:    06/03/2001

PARTIES:
Regina v Peter Anthony Bozzola

JUDGMENT OF:        Giles JA James J Hulme J   

LOWER COURT JURISDICTION:    District Court

LOWER COURT FILE NUMBER(S):             96/31/0428

LOWER COURT JUDICIAL OFFICER:        Christie DJC

COUNSEL:
H Dhanji - Appellant
LMB Lamprati - Crown

SOLICITORS:
DJ Humphreys - Appellant
SE O'Connor - Crown

CATCHWORDS:
Proviso to s6 of the Crimes Act

LEGISLATION CITED:

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60222/0l

GILES JA
JAMES J
HULME J

Tuesday 6 March 2001

REGINA v Peter Anthony BOZZOLA

JUDGMENT

  1. GILES JA.  I agree with James J.

  2. JAMES J:  This is an appeal by Peter Anthony Bozzola against his conviction, after a trial in the District Court before his Honour Judge Christie and a jury, on two charges under s52A of the Crimes Act, that on 30 May 1995 near Narrabri he was driving a vehicle (which was a Mack Prime Mover), when it was involved in an impact which occasioned the death of James Lindsay Dovey (the first count in the indictment) and grievous bodily harm to Laura Edith Dovey (the second count in the indictment), the appellant at the time of the impact driving his vehicle in a dangerous manner.

  3. Although it was alleged that the offences had been committed on 30 May 1995, the trial did not take place until February last year.  After the jury had returned its verdicts of guilty on 16 February, no application was made to continue the appellant’s bail and the appellant went into custody on 16 February 2000.  On 4 May 2000 Judge Christie sentenced the appellant on the first count in the indictment to a term of imprisonment for two years, with a minimum term of one year commencing on 16 February 2000 and expiring on 15 February 2001 and on the second count in the indictment to a fixed term of imprisonment of six months commencing on 16 February 2000.

  4. At the trial there was no dispute that at about 2.30 in the afternoon of 30 May 1995 the truck which the appellant was driving in a northerly direction on the Newell Highway between Coonabarabran and Narrabri ran into the back of a stationary, or almost stationary, Kenworth truck which was being driven by a Mr Smith.  Mr Smith had stopped his truck just before some road works on the Highway.  Another vehicle, a car, had stopped at the road works in front of Mr Smith’s truck.  A car, which was being driven by the male victim and in which the female victim was a passenger and which had been travelling in a northerly direction on the Highway, ran into the back of the appellant’s truck.  The male victim was killed instantly and the female victim was seriously injured.

  5. At the trial the appellant made formal admissions of a number of the elements of the offences charged, so that…

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Details
AGLC
R v Bozzola [2001] NSWCCA 8
Case
[2001] NSWCCA 8
Decision Date

CaseChat Overview and Summary

In the case of R v Bozzola, the appellant, Bozzola, contested his conviction in the Court of Criminal Appeal. The primary issue revolved around the directions given by the trial judge to the jury concerning Bozzola’s decision not to testify during the trial. The central legal question was whether the trial judge’s instructions to the jury regarding the appellant's failure to provide evidence contravened section 20(2) of the Evidence Act.

The Court of Criminal Appeal reviewed the trial judge's directions to determine if they aligned with the statutory requirements and if they correctly balanced the rights of the accused under the law. The trial judge had informed the jury that Bozzola was not obligated to give evidence and that his silence could be considered in their deliberations. However, the trial judge also suggested that the jury might more readily accept the prosecution's evidence on specific matters where Bozzola could have provided first-hand knowledge, such as his travel movements, drug use, rest periods, and motives for lying. The appellant's counsel argued that this direction amounted to an improper inference of guilt from silence, in violation of section 20(2) of the Evidence Act. The court needed to assess whether this direction improperly influenced the jury's perception of the appellant's silence.

The Court of Criminal Appeal concluded that the trial judge's directions did not contravene the statutory provisions. The court found that the judge's remarks were an appropriate reflection of the legal principles that an accused person is not compelled to testify and that silence cannot be construed as an admission of guilt. The directions provided to the jury were deemed to be consistent with the legislative intent of section 20(2) of the Evidence Act, as they did not suggest that the jury could infer guilt from the appellant's silence. The court upheld the conviction, finding that the trial judge's instructions were within permissible bounds and did not prejudice the appellant's right to a fair trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The only ground of appeal against conviction which was relied on was:-His Honour contravened s20(2) of the Evidence Act in the directions he gave the jury concerning the appellant’s failure to give evidence. In a break in the summing-up there was some discussion between the trial judge and counsel, in the absence of the jury, about whether the trial judge should give a “Jones v Dunkel” direction about the failure of the appellant to give evidence. In this discussion brief reference was made to s20 of the Evidence Act and to the decision of the High Court in RPS v The Queen which is reported at 74 ALJR 449. His Honour concluded that he would give the jury directions to the effect that, the appellant not having given evidence, the jury might more readily accept prosecution evidence in relation to matters of which the appellant would have had first hand knowledge and his Honour listed as such matters “his travel movements, his drug taking, his rest times and his motivation to lie”. After he had resumed summing-up, the trial judge told the jury that the appellant had not given evidence at the trial; that the appellant had been interviewed by police on the day of the collision and that evidence of the interview was before the jury; and that it had been submitted on behalf of the appellant that in the interview the appellant had told the police all he could remember about the collision. The trial judge then told the jury that, because the appellant had not given evidence, there were a number of directions he was required to give the jury. The trial judge began by telling the jury that an accused person may give evidence in a criminal trial but is not obliged to do so and is entitled to remain silent. On the hearing of this appeal no complaint was made about any of those directions. However, the trial judge proceeded to say to the jury:-“You may however, as a matter of common sense and in accordance with the law, you may take the view that where a fact is disputed between the Crown and the Accused and the Accused is in a particular position to respond or deny any particular assertion by the Crown, then you may as a matter of law more readily accept that evidence of the Crown as being truthful in the absence of the Accused having elected to respond to matters about which you would expect him to have first hand knowledge.Now those matters in this particular trial, not exhaustively but probably, include the following. Indeed I tell you as a matter of law they do include the following. His movements on the day and the night before the event and the morning thereof. The rest periods he took, if any, during that time. The question of whether he took any drugs and, if so, what and how much.Finally, but possibly not exhaustively, any reason he might advance for having told the police a number of untruths.Now they are matters about which you would expect the Accused to have first hand knowledge. The Crown, of course, have led evidence about all of those matters and I tell you as a matter of law that you would more readily, if you wish, accept the Crown evidence, it having not been the subject of any denial by the Accused, at least in regards to those matters to which I have just alluded”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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