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Queensland Judgments

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R v Ferri  
Unreported Citation: [2019] QCA 67
EDITOR'S NOTE

The appellant successfully appealed his conviction for dangerous operation of a motor vehicle causing grievous bodily harm. The court identified two errors of law. First, the trial judge erred in deciding that exculpatory statements made by the appellant during a police record of interview should be excluded on the basis that those statements were inadmissible hearsay. Second, the trial judge erred by directing the jury not to consider the question whether the effects of the accused’s coughing fit had persisted so as to deprive the appellant of control of the car on the basis that she thought the defence case was weak. As the court explained, that was the only question for determination and matters of fact are entirely for the jury to decide.

Sofronoff P, McMurdo JA, and Bradley J

18 April 2019

The applicant was convicted after trial of dangerous operation of a motor vehicle causing grievous bodily harm. The circumstances of the offence concerned the appellant driving at Surfers Paradise, veering into oncoming traffic and crashing into a van injuring its driver. [2]. The issues for the jury’s consideration centred around whether the Crown had proved the voluntariness of the appellant’s actions and the defence of automatism in light of evidence that the appellant had suffered a coughing fit just prior to the crash.

The first ground of appeal relied upon was that exculpatory portions of the appellant’s record of interview were improperly excluded by the trial judge. [36]. Objection was taken at the commencement of the trial to the Crown’s editing of the record of interview to remove perceived hearsay statements made by the appellant from a conversation with his wife who was a witness to the incident. President Sofronoff allowed this ground and revisited the settled law which required the Crown to lead evidence of a confession in its entirety to ensure that the jury had the whole sense of it. [44]–[47].

The second ground of appeal, also allowed, was that the trial judge had incorrectly directed the jury that they could not consider a defence based upon evidence of the defendant having lost consciousness. The jury was invited by defence Counsel to consider both an involuntary act resulting from a coughing fit and a loss of consciousness which caused the crash. [20]. The former basis was left to the jury but they were directed not to consider the latter. Relevant evidence of this had arisen from the evidence of the appellant’s wife and was also the subject of the excised portions of the record of interview.

President Sofronoff was of the view that the Prosecutor misled the trial judge with the proposition that because the evidence of a loss of consciousness was weak then it should not be left for the jury’s consideration. [58]. As the President explained there is binding authority that even a factually weak Crown case ought to be left to a jury as they are the arbiters of fact. And no authority is necessary that this principle is “a fortiori applicable to the defence case.” [58]–[60]. Separately, the Prosecutor also made submissions in closing as to the appellant’s credit which related to the improperly excised portions of the record of interview and, it was found, unfairly constrained the defence case. [69]–[70].

The appeal was allowed, the conviction quashed, and a re-trial ordered.

J P Feely of Counsel