R v Fennell [2019] NSWDC 397

R v Fennell [2019] NSWDC 397

Because s52A(8) Crimes Act (NSW) creates a statutory defence rather than an additional element of the offence, the prosecution must prove beyond reasonable doubt the elements in s52A(1), including dangerous driving at the time of impact, but the accused bears the onus of proving on the balance of probabilities that the death was not in any way attributable to the manner in which she drove. The jury was therefore to be directed accordingly.

Jurisdiction
Australia
Judgment Date
07 August 2019
Procedural Posture
Criminal Proceeding for Dangerous Driving Occasioning Death Under S52 a Crimes Act (nsw) 1900 / Procedural Ruling on Written Jury Directions During Trial
Outcome
Written jury direction given on the s52A(8) defence and onus of proof.
Legal Topics
['dangerous Driving Occasioning Death' 'causation' 'statutory Defence' 'onus of Proof' 'balance of Probabilities' 'jury Directions']
['criminal Law' 'criminal Procedure' 'evidence'] ['dangerous Driving Occasioning Death' 'causation' 'statutory Defence' 'onus of Proof' 'balance of Probabilities' 'jury Directions']

Case Brief

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Procedural Posture

Criminal Proceeding for Dangerous Driving Occasioning Death Under S52 a Crimes Act (nsw) 1900 / Procedural Ruling on Written Jury Directions During Trial

Legal Issues

  1. 1 ['Whether causation was an element the prosecution had to prove beyond reasonable doubt beyond the matters in s52A(1) Crimes Act (NSW) 1900.' 'Whether the defence in s52A(8) Crimes Act (NSW) 1900 placed an onus on the accused to prove that the death was not in any way attributable to the manner of driving.' 'What direction should be given to the jury where the statutory defence under s52A(8) is raised.']

Ratio Decidendi

Because s52A(8) Crimes Act (NSW) creates a statutory defence rather than an additional element of the offence, the prosecution must prove beyond reasonable doubt the elements in s52A(1), including dangerous driving at the time of impact, but the accused bears the onus of proving on the balance of probabilities that the death was not in any way attributable to the manner in which she drove. The jury was therefore to be directed accordingly.

Court Disposition

Written jury direction given on the s52A(8) defence and onus of proof.

Orders

  • ['The jury was directed that the prosecution must prove each element of the offence beyond reasonable doubt.' 'The jury was directed that the accused does not have any obligation or onus of proving her innocence in relation to the prosecution case.' 'The jury was directed that if all four prosecution elements were...