El Seidi v R

BRERETON JA: Upon the hearing of this appeal on 26 November 2021, the Court made orders, which were not opposed by the Crown, granting leave to appeal, allowing the appeal, quashing the conviction and sentence imposed on the appellant in the District Court and ordering a retrial, and granting bail upon certain conditions pending the retrial. The Court indicated that it would in due course deliver short reasons for those orders. These are those reasons.

On 12 March 2020, following a trial by jury which commenced on 3 March 2020, the appellant was convicted in the District Court of dangerous driving occasioning death (Crimes Act 1900 (NSW) [“Crimes Act”], s 52A(1)), and dangerous driving occasioning grievous bodily harm (Crimes Act, s 52A(3)), and later sentenced to an aggregate term of imprisonment of five years with a non-parole period of three years and three months. He seeks leave to appeal to this Court, pursuant to Criminal Appeal Act 1912 (NSW) (“Criminal Appeal Act”), s 5, against his conviction, his sole ground of appeal being that the trial judge erred in failing adequately to direct the jury as to the onus and standard of proof, occasioning a miscarriage of justice. The respondent Crown concedes that there was such error, and that a miscarriage of justice ensued.

On 1 January 2018, at about 12:10 am, the applicant, who then was eighteen years old and held a provisional driver’s licence, was driving a red Toyota Starlet in a westerly direction in the kerbside lane of Brunker Road, Yagoona, which had two lanes in each direction. The deceased and the surviving victim were his passengers. He began to merge into lane two, but struck the rear of a parked utility truck. One passenger lost her life, and another suffered a traumatic brain injury.

There was evidence that the applicant was speeding, and tendency evidence that he had a tendency to speed and overtake dangerously. There was also evidence that Tramadol and Diazepam, which was detected in his blood, would be expected to occasion significant impairment. However, his case was that he suffered from an epileptic seizure immediately prior to the accident.

There was undisputed evidence that, after the accident, he suffered from epilepsy. Whether he had an epileptic seizure immediately prior to the collision was the subject of contested expert evidence at the trial. The Crown’s expert witness Professor Cook opined that it was possible but unlikely that the accident was explained by a seizure, whereas the defence’s expert Professor Somerville opined that observations of the appellant after the accident were consistent with an epileptic seizure.

The Crown put its case primarily on the basis that the applicant drove dangerously through a combination of speed, failing to keep a proper lookout, and ingesting of a combination of drugs. The applicant’s case that he suffered an epileptic seizure at the time of the impact raised the issue of whether he was driving voluntarily, in response to which the Crown advanced alternative cases that:

In summing up, the trial judge appropriately referred to the need for the Crown to prove the elements of the offence, and correctly directed the jury that the applicant bore no onus, notwithstanding that he had called evidence from Professor Somerville, but that it was for the Crown to satisfy them that Professor Sommerville’s evidence “should not be accepted as a version which could be true”. In connection with the elements of the offence, the jury were provided with a document, relevantly as follows:

A relevantly identical document was provided in connection with Count 2, save that paragraph 4 referred to grievous bodily harm to the other victim.

The extended unanimity direction which preceded paragraph 5 was inapt: it was open to leave the Crown’s alternatives to the jury as alternative bases for conviction without the need for unanimity as to which basis, so long as there was unanimity as to the verdict. However, so far as it went, this was if anything favourable to the applicant. As set out above, the written direction which preceded paragraph 6 did not include a requirement for unanimity as to whether driving was involuntary.

Orally, after discussing the first four elements, his Honour said (emphasis added): [1]

In respect of the Crown’s alternative case (on the theory that at the time of the impact the applicant was driving involuntarily), his Honour directed the jury that they must consider the position just before the accused had a seizure, “if you do find that he had a seizure”. [2] His Honour then proceeded to direct the jury (emphasis added): [3]

Those directions were, with respect, incorrect and confusing. The emphasised passages suggest that to find that the applicant was driving involuntarily, he had to prove beyond reasonable doubt that he suffered from a seizure and lost control as a result. However, it was for the Crown to prove that the driving was voluntary at the time of the impact, and if not, to prove that the driving was voluntary and dangerous immediately before it became involuntary. The jury should not have been directed in terms that suggested that, before proceeding to consider the question of driving involuntarily, they had to be satisfied beyond reasonable doubt that he suffered a seizure.

After retiring, the jury sent a note asking, “DO WE NEED TO BE UNANIMOUS THAT THE ACCUSED WAS DRIVING VOLUNTARILY OR INVOLUNTARILY?”. An exchange between the jury and his Honour ensued, the effect of which was that the jury were directed that they were required “to reach a unanimous verdict that he is driving voluntarily or involuntarily”, and to indicate the answer to that question in their verdict. [4] The jury did so, advising in delivering their verdict that the applicant’s driving at the time of the impact was voluntary.

That direction presented the jury with a false dichotomy which required them to be satisfied, beyond reasonable doubt, either that he was driving voluntarily or that he was driving involuntarily, whereas, it was for the Crown to exclude, on its primary case, that he was driving involuntarily at the time of the impact. If they were not satisfied beyond reasonable doubt that he was driving voluntarily, the default position was that he must be taken to have been driving involuntarily. Appropriate directions would have been to the effect of the questions posed by Berman SC DCJ sitting as a judge alone in R v Gillett: [5]

His Honour posed the crucial question: [6]

The effect of the directions given by the trial judge to the jury, reinforced by the further directions given following the question from the jury, in the instant case, was that the jury were required to choose between the competing submissions, whether the applicant was driving voluntarily or involuntarily. The question should have been whether the jury was satisfied beyond reasonable doubt that he was driving voluntarily. An appropriate direction would have been: [7]

In my opinion, there was a real prospect that the jury, being required to choose between competing contentions each beyond reasonable doubt, did not properly consider whether the Crown had proved beyond reasonable doubt that the applicant had not suffered from an epileptic seizure immediately prior to the accident such that he was driving involuntarily.

The Crown properly conceded that Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15, should not be applied, as the error was one in respect of the onus and standard of proof and was thus apt to go to the root of the proceedings, so that leave should be granted despite no exception having been taken at trial. [8]

The appellant did not contend that the verdict was unreasonable, and accepted that it would have been open to the jury to accept the evidence of Professor Cook to the effect that an epileptic seizure was not a reasonable possibility. However, as the Crown accepted, such a conclusion was not inevitable, and the trial judge’s directions to the jury did not direct them in those terms. This is not an occasion for application of the proviso in Criminal Appeal Act, s 6.

The appeal having succeeded and the conviction having been quashed, Bail Act 2013 (NSW), s 22, is no longer applicable, and it is s 18 that is relevant. The applicant does not have to show cause to obtain bail on the charges he faces. Although he was on probation at the time of the offences, he was not on bail or parole. The Crown did not oppose bail subject to certain conditions, to which the appellant agreed.

It was for the foregoing reasons that on 26 November 2021 I proposed the following orders:

WILSON J: For the reasons given by Brereton JA I joined in the orders of the Court announced on 26 November 2021.

IERACE J: I also agree with Brereton JA.