R v Mazza - [2017] QCA 136

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mazza [2017] QCA 136

PARTIES:

R
v
MAZZA, Fabio Armando
(appellant)

FILE NO/S:

CA No 335 of 2016
DC No 11 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Roma – Date of Conviction: 24 November 2016

DELIVERED ON:

20 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2017

JUDGES:

Gotterson and McMurdo JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by a jury of dangerous operation of a vehicle causing death and grievous bodily harm – where the appellant was an on-duty police officer who executed a U-turn on a highway to pursue a speeding vehicle – where, at the time the appellant made the U-turn, a motorcycle travelling behind braked heavily, skidded and flipped, causing the grievous bodily harm of the driver and the death of the pillion passenger – where the motorcycle driver had no recollection of the incident – where a number of witnesses provided conflicting accounts of the offending – where the appellant submits that the heavy braking of the motorcycle driver did not necessarily mean that he did so in order to avoid a dangerous situation created by the appellant – where the appellant further submits that the jury could not have excluded the possibility that what happened had been an overreaction by the motorcycle driver – whether it was open to the jury to have been satisfied beyond reasonable doubt of the appellant’s guilt – whether the verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – MATTERS AVAILABLE TO JURY IN JURY ROOM – where the learned trial judge instructed the jury at the beginning of the trial not to conduct their own investigations and to inform the bailiff if any member were to bring in “external information” – where on the last day of the trial, after verdict had been delivered and after the jury had been discharged, the bailiff located printed pages in the jury room from legal resources websites concerning serious traffic offences and the concept of reasonable doubt – where, although the material relating to reasonable doubt referenced United States jurisprudence, the information accorded with orthodox principles – where the material concerning dangerous driving referenced Queensland legislative provisions, but did not refer to conduct going “beyond mere want of care” – where, after the jury retired to consider their verdict, they asked the learned trial judge for a written definition of the charge, which was provided after consultation with counsel – where the appellant contends that it cannot be assumed that the jury gave greater weight to the document provided by the…

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 R v Mazza

Details

AGLC: R v Mazza [2017] QCA 136
Case: [2017] QCA 136
Decision Date: 20 June 2017

CaseChat Overview and Summary

In R v Mazza, the appellant was convicted by a jury of dangerous operation of a vehicle causing death and grievous bodily harm. The appellant was an on-duty police officer who executed a U-turn on a highway to pursue a speeding vehicle. This action led to a motorcycle, travelling behind the police vehicle, braking heavily, skidding, and flipping, resulting in the grievous bodily harm of the driver and the death of the pillion passenger. The case came before the court on appeal, with the appellant contending that the verdict was unreasonable or insupportable having regard to the evidence, and that there were irregularities in relation to the jury that called into question the fairness of the trial.

The court was required to determine whether the evidence supported the jury's verdict that the appellant's actions constituted dangerous operation of a vehicle. The appellant argued that the heavy braking of the motorcycle driver did not necessarily mean that he did so to avoid a dangerous situation created by the appellant, and that there was a possibility of an overreaction by the motorcycle driver. Additionally, the appellant raised concerns about irregularities during the trial, including the presence of external information in the jury room that might have influenced the jury's decision.

The court found that the evidence was sufficient to support the jury's verdict that the appellant's actions were dangerous and caused the motorcycle to crash. The court rejected the appellant's argument that the heavy braking of the motorcycle driver could have been an overreaction, stating that the jury was entitled to consider the totality of the evidence and the circumstances of the incident. Regarding the irregularities in the jury room, the court concluded that the presence of the external information did not prejudicially affect the outcome of the trial, and that the jury was properly directed to consider only the evidence presented in court. The appeal was dismissed.

The court's final order was that the appeal against conviction and sentence was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The evidence at trial: Mr Bell, who was 87 years old at the time when the incident took place, gave evidence by telephone. He said that he knew the Smiths and that he was travelling with them to Alice Springs. They had left Dalby that morning. They passed through Yuleba and were travelling towards Wallumbilla. He was following Mr Smith’s motorcycle at a distance of about 40 to 50 metres. According to Mr Bell, he first saw the police vehicle that the appellant was driving when it was “parked off the road [and] on the left”. It was about “60 centimetres below the road level” and facing in the same direction of travel as he was. He was about 60 or 70 metres from the police vehicle when he first saw it. He did not pay much attention to the police vehicle because he was watching Mr Smith and the traffic coming the other way and behind him. At the time he first saw the police vehicle, he was travelling behind Mr Smith and had caught up a little to be about 30 to 35 metres behind him.[4][4]AB21 Tr2-5 l37 – AB22 Tr2-6 l40. Next, he saw the police vehicle across the lane in which he and the Smiths were travelling. He estimated that, at that time, Mr Smith’s motorcycle was about three or four metres away from the police vehicle. The motorcycle braked and skidded. Mrs Smith suddenly went into the air and the motorcycle went sharply to the right across the roadway. In all, no more than 10 or fifteen seconds elapsed between when he first saw the police vehicle stationary on the left and when it was across the lane. He skidded to a halt to render assistance to Mrs Smith.[5][5]AB22 Tr2-6 l45 – AB24 Tr2-8 l8. Mr Bell said that he had not been in a position to observe the front wheel of the motorcycle and hence did not know if there had been any contact between it and the police vehicle. However, he was sure that the motorcycle was going to hit the police vehicle.[6] The police vehicle completed the U-turn, travelled for about 70 or 80 metres in an easterly direction and then stopped. He did not see any flashing lights on the police vehicle.[7][6]AB24 Tr2-8 ll10-17.[7]AB24 Tr2-8 l33 – AB25 Tr2-9 l20. In cross-examination, Mr Bell did not accept a proposition that the police vehicle, the Smiths and he had been travelling “in convoy” at the same speed and the same distance apart “over quite some kilometres” before the incident.[8] Nor did he accept a proposition that the police vehicle was at no time stationary beside the road or below the road level.[9] He maintained that Mr Smith’s motorcycle was three to four metres from the police vehicle when he saw the brake lights on the motorcycle illuminate,[10] and rejected a suggestion that Mr Smith’s motorcycle skidded for about 30 metres before Mrs Smith came off it.[11] He also maintained that his motorcycle had made skid marks on the road surface which he saw,[12] and that he had not seen any flashing lights on the police vehicle.[13][8]AB26 Tr2-10 lll5-34.[9]AB27 Tr2-11 ll42-45. Later, he conceded that he had told police on an earlier occasion that the police vehicle was about 90 cms below road level but said that he realised later that it was less than that: AB29 Tr2-13 ll7-26.[10]AB28 Tr2-12 ll7-15.[11]Ibid ll31-37.[12]AB29 Tr2-13 ll1-5.[13]AB30 Tr2-14 ll1-2.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Mazza [2017] QCA 136
PARTIES:	R v MAZZA, Fabio Armando (appellant)
FILE NO/S:	CA No 335 of 2016 DC No 11 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Roma – Date of Conviction: 24 November 2016
DELIVERED ON:	20 June 2017
DELIVERED AT:	Brisbane
HEARING DATE:	3 April 2017
JUDGES:	Gotterson and McMurdo JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by a jury of dangerous operation of a vehicle causing death and grievous bodily harm – where the appellant was an on-duty police officer who executed a U-turn on a highway to pursue a speeding vehicle – where, at the time the appellant made the U-turn, a motorcycle travelling behind braked heavily, skidded and flipped, causing the grievous bodily harm of the driver and the death of the pillion passenger – where the motorcycle driver had no recollection of the incident – where a number of witnesses provided conflicting accounts of the offending – where the appellant submits that the heavy braking of the motorcycle driver did not necessarily mean that he did so in order to avoid a dangerous situation created by the appellant – where the appellant further submits that the jury could not have excluded the possibility that what happened had been an overreaction by the motorcycle driver – whether it was open to the jury to have been satisfied beyond reasonable doubt of the appellant’s guilt – whether the verdict was unreasonable or insupportable having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – MATTERS AVAILABLE TO JURY IN JURY ROOM – where the learned trial judge instructed the jury at the beginning of the trial not to conduct their own investigations and to inform the bailiff if any member were to bring in “external information” – where on the last day of the trial, after verdict had been delivered and after the jury had been discharged, the bailiff located printed pages in the jury room from legal resources websites concerning serious traffic offences and the concept of reasonable doubt – where, although the material relating to reasonable doubt referenced United States jurisprudence, the information accorded with orthodox principles – where the material concerning dangerous driving referenced Queensland legislative provisions, but did not refer to conduct going “beyond mere want of care” – where, after the jury retired to consider their verdict, they asked the learned trial judge for a written definition of the charge, which was provided after consultation with counsel – where the appellant contends that it cannot be assumed that the jury gave greater weight to the document provided by the…