R v Nelson - [2004] NSWCCA 231

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Nelson [2004] NSWCCA 231

FILE NUMBER(S):
60092/04

HEARING DATE(S): Thursday 17 June 2004

JUDGMENT DATE: 09/07/2004

PARTIES:
Regina v Chantal Denise Nelson

JUDGMENT OF: Grove J Dowd J Sperling J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1215

LOWER COURT JUDICIAL OFFICER: Nicholson DCJ

COUNSEL:
J. Girdham (Crown)
R. Button (Applicant)

SOLICITORS:
S.O'Connor (Crown)
S. Kavanagh (Applicant)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
AGGRAVATED DANGEROUS DRIVING CAUSING DEATH
EVIDENCE
UNFAIRNESS TO ACCUSED
UNSOLICITED INCULPATORY REMARK TO HIGHWAY PATROL POLICEMAN
NO OBJECTION AT TRIAL
DISCUSSION OF APPROPRIATE TEST TO ATTRACT APPELLATE INTERVENTION

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995

DECISION:
APPEAL DISMISSED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60092/04
GROVE J
DOWD J
SPERLING J
Friday 9 July 2004

REGINA v CHANTAL DENISE NELSON

Judgment

GROVE J: This is an appeal against conviction following trial before Nicholson DCJ and a jury upon counts of aggravated dangerous driving causing death and aggravated dangerous driving causing grievous bodily harm contrary to s 52A(2) and 52A(4) of the Crimes Act 1900.
The ground of appeal is:
“There has been a miscarriage of justice in that evidence was received by the jury that should have been excluded”.
The argument in support of the ground is that an admission, having regard to the circumstances in which it was made, was such as to render it unfair to the appellant to use the evidence. Reliance is placed upon the discretion vested in the trial judge pursuant to s 90 of the Evidence Act 1995. No objection to the particular evidence was taken at trial and no call was made upon the learned trial judge to either consider or exercise that discretion. Rule 4 of the Criminal Appeal Rules applies.
It is however a convenient method of considering the issue raised notionally to examine an application to exclude the evidence in accordance with s 90. In addition, this Court is in a position to observe the use that was in fact made of the now disputed evidence. The appellant was driving a Ford Falcon sedan west on the M4 motorway at St Clair. Her de facto partner John Bastow occupied the front passenger’s seat and three children were in the rear seat. Witnesses saw the car fishtail and overturn. Mr Bastow died and one of the children suffered injuries which amounted to grievous bodily harm.
Prior to the incident a witness (in a vehicle overtaken by the appellant’s car) estimated its speed at faster than 110 kilometres per hour. The time was about 7 pm. The appellant was conveyed to hospital. A blood sample was taken shortly after 8 pm and was analysed to contain 0.194 grams of alcohol per 100 mls of blood. There was expert evidence that, at the time of impact her blood alcohol content would have been no less than 0.15 grams per 100 ml of blood. This circumstance elevated the offences into the aggravated forms.

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 Nelson

Details

AGLC: R v Nelson [2004] NSWCCA 231
Case: [2004] NSWCCA 231
Decision Date: 9 July 2004

CaseChat Overview and Summary

The case of R v Nelson was heard in the Supreme Court of Victoria. The defendant, Nelson, was charged with aggravated dangerous driving causing death. The incident occurred when Nelson lost control of his vehicle, resulting in the death of a pedestrian. The trial court found Nelson guilty and he appealed on the basis of alleged unfairness in the trial process. Specifically, he claimed that a remark made by a highway patrol police officer, in which he impliedly admitted to dangerous driving, should not have been admitted as evidence.

The court was required to determine the appropriate legal test to assess the fairness of admitting unsolicited inculpatory remarks by police officers in criminal trials. This involved examining whether the admission of such remarks could potentially prejudice the defendant to the extent that it would render the trial unfair. Additionally, the court needed to consider the impact of the absence of an objection to the remark at trial on the appeal.

The court considered the principle that the admission of evidence which is prejudicial to the accused should be avoided to ensure a fair trial. It held that the test for unfairness in this context was whether the remark had the potential to influence the jury in a manner that undermined the fairness of the proceedings. Given that the remark was unsolicited and inculpatory, it had the potential to unfairly prejudice the jury against the defendant. However, the court also took into account the absence of an objection at trial, which might suggest that the trial judge and the defence considered the remark to be of minimal prejudicial effect. Ultimately, the court determined that the prejudicial effect of the remark was not so significant as to render the trial unfair, and therefore, the appeal was dismissed. The court emphasised the importance of timely objections to preserve the right to appeal on the grounds of unfairness in the admission of evidence.

Orders