Cvetjovski (Cvetkovski) v R

Court of Criminal Appeal (NSW)|2019-03-11|Before: Payne JA, Bellew J, Campbell J

Before: Hock DCJ File Number(s): 2015/00328262

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Mr Cvetjovski, was convicted in the District Court of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900 (NSW) following a trial by jury. A truck that the appellant was driving veered into oncoming traffic and killed another driver. The appellant maintained that he had hit a pot hole in the road which caused him to lose control of the vehicle. The appellant was sentenced to 3 years imprisonment with a non-parole period of 2 years. Mr Cvetjovski appealed against his conviction and sentence on three grounds:

The primary judge erred in failing to exclude the evidence of Dr Perl;
The verdict of the jury should be set aside on the basis that it is unreasonable, and is not supported by the evidence; and
The primary judge imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be discernible) and the sentences are manifestly excessive. An additional ground of appeal against conviction was later filed:

Judgment

PAYNE JA: On 11 August 2015, Mr Cvetjovski [1] was driving a rigid 10 tonne Nissan truck over the Woronora River Bridge at Heathcote. The truck veered into oncoming traffic and collided with a Holden SS utility vehicle being driven in the opposite direction by Mr Drew Cullen, who was killed. Although leave to appeal is required in relation to each ground of appeal I will nonetheless refer to Mr Cvetjovski as "the appellant".
On 26 July 2017, the appellant was indicted under s 52A(1)(c) of the Crimes Act 1900 (NSW) for driving in a manner dangerous to other persons which resulted in the death of the deceased. On 2 August 2017, a jury found the appellant guilty of dangerous driving occasioning death.
On 20 October 2017, Hock DCJ sentenced the appellant to a non-parole period of 2 years and an additional term of 1 year being an overall sentence of 3 years, to commence from 6 January 2018. The reason for the delay in commencement of the sentence was that on 20 October 2017 the appellant was serving a sentence of imprisonment for unrelated offences. Having regard to the totality of the periods of imprisonment imposed on the appellant, his non-parole period will expire on 5 January 2020. Hock DCJ directed that the appellant be released on that day.
On 24 September 2018, the appellant filed a notice of appeal, seeking to appeal against his conviction and sentence on three grounds. An additional ground of appeal was filed on 7 March 2019. The grounds are: 1. her Honour erred in failing to exclude the evidence of Dr Judith Perl; 2. her Honour erred in failing to exclude the admissions of the appellant that he had used illicit drugs in the past and [as to] when that occurred; (the additional ground of appeal styled as ground 4); 3. the verdict of the jury should be set aside on the basis that it is unreasonable, and is not supported by the evidence; and 4. her Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be discernible) and the sentences are manifestly excessive.
The trial judge summarised the agreed facts as follows: 1. the appellant was the driver of the truck; 2. the truck was involved in an impact on 11 August 2015 at Heathcote; and 3. as a result of that impact, the death of Mr Drew Cullen was occasioned.
It was agreed that, as the vehicles crossed the single carriageway bridge over the Woronora River, the truck driven by the appellant impacted the vehicle driven by the deceased, who died instantly as a result of the impact. The impact was caused by the appellant's truck crossing over into the incoming lane of traffic on the narrow bridge.
In the trial judge's summing up, her Honour observed that the "live issue" for the jury was whether the Crown had proven beyond reasonable doubt that the appellant was driving in a manner dangerous to other persons at the time of the collision.
The critical issues were whether, as the Crown contended, the appellant was driving a heavy vehicle over a crowded narrow bridge without sufficient awareness or alertness and/or control over his vehicle or whether, as the appellant contended, the truck veered unexpectedly and uncontrollably into the oncoming traffic on the bridge as a result of a problem in the road surface.

Ground 1 - failure to exclude Dr Perl's evidence

At 5.30pm on the day of the collision (11 August 2015), blood testing of the appellant showed 0.03 milligrams per litre of methylamphetamine in the appellant's blood and 0.01 milligrams per litre of amphetamine. The Crown proposed to call Dr Judith Perl, an expert pharmacologist, to give evidence about the appellant's results and the likely impact on the appellant from these drugs at the time of the collision. The appellant objected to Dr Perl's evidence.

Dr Perl's evidence

Dr Perl's certificate of expert evidence, dated 16 January 2016, contained the following conclusions: "[1] Based on my specialised knowledge, and relying on the above information, I cannot form a firm opinion that at the time of driving, Albert CVETKOVSKI was under the influence of methylamphetamine to an extent that there was any impairment of his driving ability, however it is certainly possible. … [6] … Mr CVETKOVSKI's stated time of last use of methylamphetamine is not possible given the level found in his blood. The presence of the drug and its metabolite in his blood indicates he used the drug within 24 hours of the blood sample and therefore, as indicated above, it is certainly possible that there was some impairment present but I cannot offer a firm opinion in relation to impairment. … [14] Given the absence of any signs or symptoms displayed by Mr CVETKOVSKI or any information in relation to the regularity and time of last usage of methylamphetamine, I would be unable to form a firm opinion that there was impairment, however, given the low level of methylamphetamine, any impairment which may have been present would have been expected to be due to the methylamphetamine-induced withdrawal state of fatigue. This may in fact explain why Mr CVETKOVSKI appeared to have lost concentration and crossed to the incorrect side of the roadway."
Immediately after the appellant was arraigned, the trial judge was asked to rule on the appellant's objection to the admission of Dr Perl's evidence on the basis that it should be excluded pursuant to s 137 of the Evidence Act 1995 (NSW). A voir dire was conducted.
There was no issue that Dr Perl's evidence was not excluded by the opinion rule in s 76 of the Evidence Act by reason of s 79. On the voir dire, Dr Perl gave evidence that methylamphetamine has a biphasic effect on a user, meaning that it has a stimulant effect on the central nervous system followed by a depressed state which may be described as withdrawal. The usual impact of the withdrawal state on a person's driving included drifting off to sleep, veering off the road, an inability to maintain the position of the vehicle on the road and a lack of concentration. By comparison, a person affected by the acute phase of methylamphetamine would generally be expected to drive aggressively or at excessive speeds.
Dr Perl said that, based on the ratio of amphetamine to methylamphetamine in the appellant's blood, it was "much more probable than not that it was in the withdrawal" stage at the time of the collision. She considered the blood test results to be "highly suggestive" of the withdrawal phase. In Dr Perl's opinion, the appellant took methylamphetamine within three days, and "most likely" within 24 hours, of the collision.
Dr Perl concluded that, without further information, she could not give a "definitive opinion about whether there was impairment" and she could not exclude other possibilities as causes of the collision.
For the purposes of the objection under s 137 of the Evidence Act, the appellant contended before the trial judge that the probative value of Dr Perl's evidence was "virtually nil", whereas there was a significant risk that the jury would misuse her evidence by reasoning that, because the appellant was the type of person to take illicit drugs, he was also the type of person to drive dangerously.
In ruling that Dr Perl's evidence was admissible, the primary judge concluded: "In my view, the evidence of Dr Perl does have probative value in respect of the fact in issue, namely, whether the accused was driving in a manner dangerous to other persons. Even though Dr Perl cannot be definitive, any danger that the jury might misuse the evidence may be able to be cured by a direction to be given at the time the evidence is admitted and repeated in the summing up."
Before the jury, Dr Perl gave evidence about the biphasic effect of methylamphetamine. Asked about the appellant's blood test results and what the results indicated about the effect of the drugs detected on the appellant at the relevant time, she said: "I'd have to say that in terms of my experience with blood levels I would be 99 percent sure that it was withdrawal. The exception to that would be if there had been very frequent usage and there was some recent usage as well of a very small dose, but that's only a very small possibility."
Dr Perl observed that the amount of methylamphetamine in the appellant's blood was not high. But she noted that the manner in which the blood had been taken would result in "a very conservative concentration that is presented on the certificate". The effect of her evidence was that the appellant must have taken methylamphetamine within three days of the collision, and "more likely" took it within 24 hours of the collision, but was unlikely to have taken it on the day of the collision.
Dr Perl gave evidence that the likely effects of a withdrawal state can be "[e]xtremely important" to a person's driving. Dr Perl indicated that she would expect a person experiencing a withdrawal state to react more slowly, to be more easily distracted and to drive less accurately. Dr Perl emphasised that the manifestations of a withdrawal state are extremely variable and, while she would expect those manifestations to be evident, that would not always be the case.
Dr Perl confirmed that she could not provide a "firm opinion" as to whether the appellant was, in fact, impaired in his driving at the time of the collision on account of the methylamphetamine in his blood.

Appellant's submissions

The appellant submitted that the evidence had no relevance to the issue of dangerous driving or, alternatively, if it was relevant it had limited probative value, and if it did have probative value that value was outweighed by the prejudice to the appellant.
The appellant submitted that the prejudice came from the weight that an expert's opinion would lend to the evidence, and that it invited erroneous reasoning that because the appellant was a person who used illicit drugs he would thus be irresponsible and drive dangerously.
The appellant submitted that the evidence that the appellant had used methylamphetamine in the days before the collision was not capable of establishing any effect on the driving.
The appellant submitted that the evidence was highly speculative and did not establish: 1. that the methylamphetamine readings were other than minimal; 2. that there was any "withdrawal effect" in the instant circumstances; 3. that any such "withdrawal effect" had any effect upon the appellant's driving; or 4. that this extinguished the explanation provided by the appellant in his interview with police.
The appellant submitted that the relevant questions were: 1. did the evidence have sufficient cogency to be considered relevant to a fact in issue?; and 2. was the speculative "possibility" of such weight sufficient to permit admission against the identified prejudice to the appellant pursuant to s 137?
The appellant submitted that the correct test was described in Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72: "[51] It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. … It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task."

Crown submissions

The Crown submitted that Dr Perl accepted and made clear the limitations of her evidence. She specified that she could not conclude that the appellant was, in fact, impaired by methylamphetamine. The Crown submitted that the jury must be taken to have understood those express limitations.
The Crown submitted that it is to be assumed that juries obey a trial judge's directions. Here, the primary judge made plain that the jury could not use Dr Perl's evidence in the manner that the appellant now asserts was likely: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31] per McHugh J.
The Crown submitted that the trial judge correctly assessed the probative value of the evidence by reference to its capability to explain factual issues in the trial and taking into account its limitations. Her Honour considered that the risk of unfair prejudice could be satisfactorily resolved by careful directions to the jury.

Consideration of ground 1

Evidence that is relevant in a proceeding is (subject to the operation of any exclusionary rule) admissible: Evidence Act, ss 55, 56. Evidence that is of "only some, even slight, probative value will be prima facie admissible" by this standard: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [40] (French CJ, Kiefel, Bell and Keane JJ). Section 137 of the Evidence Act requires the exclusion of otherwise relevant evidence in certain circumstances: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
The "probative value" of evidence is defined in the Dictionary to the Evidence Act to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". The majority in IMM stated: "[45] The use of the term 'probative value' and the word 'extent' in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various."
The majority in IMM went on to state: "[47] … the requisite probative value of the evidence is not spelled out in s 137. It requires the "probative value" of the evidence to be weighed against the danger of unfair prejudice to the defendant. This again requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue. [48] It has been explained that the basic inquiry as to whether evidence "could rationally affect […] the assessment of the probability of the existence of a fact in issue", which appears in both s 55 and the definition of "probative value" of evidence, is not altered by the further inquiry required by the definition as to the extent to which the evidence could have the effect stated. The assessment of extent does not import new and different considerations, such as might affect whether the evidence is accepted as credible or reliable. [49] The same construction must be given to the words "could rationally affect […] the assessment of the probability of the existence of a fact in issue" where they appear in the definition of "probative value" as is given to those words in s 55. This requires an assessment of the capability of the evidence to have the stated effect. And because the question to which those words give rise remains the same for the passages of the definition of "probative value", that inquiry must be approached in the same way as s 55 requires: on the assumption that the jury will accept the evidence. The words "if it were accepted", which appear in s 55, should be understood also to qualify the evidence to which the dictionary definition refers. It is an approach dictated by the language of the provisions and the nature of the task to be undertaken." (Italics added.)
The unanimous judgment of the High Court in R v Bauer [2018] HCA 40; 92 ALJR 846 described the task of assessing probative value for the purposes of s 137 of the Evidence Act as follows: "[95] … it is not for the trial judge to say what probative value a jury should give to evidence but only what probative value the jury acting rationally and properly directed could give to the evidence. Hence, unless evidence is so lacking in credibility or reliability that it would not be open to a jury acting rationally and properly directed to accept it, the probative value of the evidence must be assessed, for the purposes of s 137, at its highest."
There were essentially three aspects of Dr Perl's evidence that were relevant to the issues in the trial: 1. Dr Perl's evidence that the appellant was in the withdrawal or fatigue state associated with methylamphetamine use at the time of the collision; 2. Dr Perl's evidence of the effects of methylamphetamine use on a person in the withdrawal stage, namely that one might experience slower reaction times and less acute motor functions. Dr Perl noted that it was "possible" that the driving behaviour could be related to the methylamphetamine. Dr Perl noted that she would expect the appellant to be suffering from such symptoms given the level of amphetamine in his blood, but that she could not give a firm opinion; and 3. Dr Perl's evidence that the appellant had been untruthful about his drug use when speaking with police.
The onus lay on the Crown at all times to prove beyond reasonable doubt that the appellant had been engaged in dangerous driving. The first two aspects of Dr Perl's evidence were relevant to and probative of the question of whether the Crown had established that the withdrawal state would manifest in symptoms that would affect the appellant's driving ability. This was evidence highly relevant to critical facts in issue: whether the appellant had been inattentive and whether the appellant was sufficiently in control of the vehicle. Both matters were crucial building blocks in the ultimate conclusion the Crown submitted the jury should draw, that the appellant had engaged in dangerous driving. Dr Perl's evidence strengthened the Crown case that there was a lack of concentration and a lack of proper control of the truck by the appellant at the time of the collision.
The third matter in Dr Perl's evidence was relevant to the appellant's credibility and whether the jury should be cautious in accepting his explanation of how the accident occurred. On the assumptions required to be made for the purposes of s 137, I am satisfied that despite its express limitations Dr Perl's evidence had significant probative value.
Turning to the question of prejudice, in R v Dickman (2017) 261 CLR 601; [2017] HCA 24, the High Court said: "[48] Unfair prejudice may be occasioned because evidence has some quality which is thought to give it more weight in the jury's assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence."
The allegedly prejudicial effect of Dr Perl's evidence was that it invited the jury to reason that, because the appellant used illicit drugs, it was more likely that he drove in an irresponsible or dangerous manner.
This possible prejudice was acknowledged and addressed by the trial judge. The trial judge at the outset directed the jury that any evidence about the presence of methylamphetamine in the accused's blood could not be used to say that the accused is a person of bad character because he took an illegal drug. Immediately after the openings, the trial judge directed the jury this way: "HER HONOUR: Ladies and gentlemen, I just want to emphasise that the Crown Prosecutor said to you in his opening that you are going to hear evidence that there was when the accused's blood was tested a low level of methylamphetamine in his blood. That evidence is going to be placed before you because it is relevant to the issue that you have to decide on the Crown case, it is relevant on the Crown case, namely, whether the accused was driving dangerously at the time of the impact. It is not being placed before you to establish that the accused is a person of bad character because he took an illegal drug. It is very important that you understand that direction. The evidence is before you because it is relevant to the issue that you have to decide and it cannot be used in any other way."
No complaint was made by the appellant at the time or on the appeal about the content of that direction. To the contrary, the following exchange occurred in the absence of the jury immediately before Dr Perl was called to give evidence: "HER HONOUR: … I've already given the jury a direction about how they shouldn't use the evidence of methylamphetamine. Do you want me to say it again after Dr Perl has given her evidence or do you think just in the summing-up? CLARKE: I am content it is dealt with in the summing-up. HER HONOUR: All right."
No complaint is made about what her Honour said to the jury in the summing up which, in the context of a careful and thorough explanation of expert evidence, directed the jury that Dr Perl's evidence: "… was not placed before you to establish that the accused is a person of some sort of bad character because he took an illegal drug, or you might find that he took an illegal drug at some time. It is very important that you understand that direction that that evidence is only relevant to the issue that you have to decide and it cannot be used in any other way. … Dr Perl's expert evidence was admitted to provide you with pharmacological information and an opinion about methylamphetamine and its effects, which was within her expertise and which is likely to be outside the experience and knowledge of the average layperson. The expert evidence is before you as part of all the evidence to assist you in determining whether the accused was driving in a manner dangerous to other persons."
Later in the summing up her Honour returned to this topic: "The Crown Prosecutor accepted, as he must, that Dr Perl was only able to put impairment of driving ability by the accused as a result of the methamphetamine as a possibility. However, the prosecution relied on Dr Perl's evidence that a person in the withdrawal stage is slower to react and the action time to perform an action such as braking, steering, or whatever you choose to do will also be slower … The Crown Prosecutor argued that you can and should factor this evidence into the overall evidence that has been placed before you."
The trial judge was correct to conclude that any danger that the jury might misuse the evidence could be cured by a direction given at the time the evidence was admitted and repeated in the summing up. The probative value of Dr Perl's evidence was not outweighed by the danger of unfair prejudice to the appellant.
Ground 1 is not made out. The evidence had significant probative value and, in the circumstances of clear and repeated directions, there was no danger that the jury would misuse the evidence. Dr Perl's evidence was relied on essentially as a piece of circumstantial evidence to explain, or go to explain, the cause of this collision. Dr Perl's evidence was not inadmissible by reason of s 137 of the Evidence Act. Leave should be granted under ground 1, but ground 1 should be dismissed.

Ground 4 - failure to exclude the admissions of the appellant regarding illicit drug use

It is convenient to address the additional ground, ground 4, at this point as it is closely related to ground 1. The appellant submitted that the accused was not cautioned by the police at the beginning of his ERISP that his answers to questions might potentially subject him to further criminal sanction.
During the course of the ERISP, the following exchange occurred: "Q241: all right. Have you taken any sort of other… A: no. Q242: - illicit drugs? Do you ever use drugs? A: no. Q243: OK. A: not for a long time. Q244: OK. A: when I was young and dumb."
Later in the interview, a further exchange occurred: "Q265: are you aware that, um, when you were taken to hospital that a blood sample was taken? A: yep. Q266 yep. Have you any idea why there would be a return for meth[yl]amphetamine in your system? A: no. Q267: No, you've never taken meth[yl]amphetamine? A: I've taken it yeah. Q268: yep, how long ago? A: um, I don't know, maybe four or five months ago. Q269: OK, alright. Yep, but nothing since then? A: no."
The appellant submitted that these questions and answers were effectively used by the Crown as an admission against his interests and a plank upon which the jury could reject his evidence and explanations in the ERISP: R v Horton (1998) 45 NSWLR 426; R v Esposito (1998) 45 NSWLR 442.
The appellant accepted that no application was made at the trial by the appellant to exclude the evidence. In the view of the context of the questions, the appellant submitted that the admissions should have been excluded pursuant to s 85 of the Evidence Act, or, alternatively, pursuant to s 138.
The appellant submitted that the statements made in the interview, which were made in the context of possible affectation of his driving, were admissions of drug usage and were ultimately adverse to his interests.
The appellant submitted that these representations were made in circumstances which made it likely that the truth of the admissions was adversely affected.
The appellant submitted that, even if the statements were not inadmissible under s 85, they should have been excluded under s 138(1)(a) as they were improperly obtained in that the appellant was not separately cautioned in relation to possible criminal liability for taking an illicit substance.
The appellant submitted that the failure of counsel at trial to object to the admissibility of these representations stemmed from the Crown's failure to articulate which of the statements were admissions, and what use was to be made of the representations.
The appellant submitted that, because this evidence was admitted, the appellant lost a real chance (or a chance fairly open) of being acquitted.

Consideration of ground 4

Section 85 of the Evidence Act provides: 85 Criminal proceedings: reliability of admissions by defendants (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. Note. Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216. (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and (b) if the admission was made in response to questioning: (i) the nature of the questions and the manner in which they were put, and (ii) the nature of any threat, promise or other inducement made to the person questioned.
In Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 the Court (Gleeson CJ, Hayne and Heydon JJ) said: "[21] One other potential controversy may be excluded from consideration. The trial judge had entertained doubt whether the impugned statement was a ''confession or admission'', on the ground that it was not an admission of guilt, but only an admission of making false allegations against the police in the video-recorded interview. In the course of argument in this Court a question was raised as to whether that doubt was soundly based. There is a debate as to whether the expression ''confession or admission'' includes, in addition to statements which are apparently intended to be inculpatory, those which are apparently intended to be exculpatory. The point is important not only in various legislative contexts, but also in relation to the common law voluntariness rules. If it is possible that an exculpatory statement can be characterised as an admission, it is also possible that the impugned statement, which is not in terms inculpatory but which casts doubt on the exculpatory explanations offered during the video-recorded part of the interview of 4 March 2000 to account for the making of the confession of 25 November 1999, can also be characterised as an admission. Since this important point was not argued in the Court of Criminal Appeal or in this Court however, and since the appeal fails on other grounds, it is undesirable to decide it one way or the other." (Footnotes omitted.)
I will assume, for the purposes of argument, that the appellant's statements were "admissions" for the purposes of the Evidence Act. On this assumption, the appellant's submission about s 85 of the Evidence Act should nevertheless be rejected. The circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. The ERISP contains a warning to the appellant in these terms: "Q33: … But as I said, you don't have [to answer] any of those questions. Do you understand that? A: Yep. Q34: And anything you say is recorded and we can use. Do you understand that? A: O.K. Yep."
The appellant was also given the following warnings: "Q13: Do you agree to be interviewed today electronically? A: Yes, I do. Q14: And has any threat been held out to you to take part in this interview? A: No, it hasn't. Q15: Has any promise been held out to you to take part in this interview? A: No, it hasn't. Q16: All right. And has any offer of advantage been held out to you to take part in this interview? A: No, it hasn't."
In these circumstances, where clear warnings were given to the appellant and there are no other circumstances pointing to possible unfairness, it is unlikely that the truth of any admission was adversely affected.
On the same assumption about the characterisation of the impugned evidence as an "admission", s 138 does not assist the appellant. The appellant was cautioned in the interview and agreed, twice, in the course of that interview that he had given answers of his own free will. There was no impropriety or contravention of an Australian law here engaged. No separate or different form of caution was required. At least in the circumstances of this case, the investigating officials were not required, for the purposes of cautioning the appellant, to nominate an offence or offences that were the subject of their investigation. No question of the operation of s 138 of the Evidence Act thus arises in this case.
Although I have dealt with the substance of the appellant's complaint on the assumption described at [57] and rejected it, it will be recalled that no objection was made at the trial to this evidence by experienced counsel then appearing for the appellant. In those circumstances, I would refuse leave to appeal under Rule 4 of the Criminal Appeal Rules (NSW) on this ground.

Ground 2 - unreasonable verdict

As I have earlier explained, the critical issues in this case were whether, as the Crown contended, the appellant was driving a heavy vehicle over a crowded narrow bridge without sufficient awareness or alertness and/or control over his vehicle and thus dangerously, or whether, as the appellant contended, the truck veered unexpectedly and uncontrollably into the oncoming traffic on the bridge as a result of a problem in the road surface. The appellant gave evidence, fairly and accurately summarised by the trial judge in the summing up, that the steering wheel had bounced out of his hand when he hit the pot hole.

Appellant's submissions

The appellant submitted that it was not open to the jury acting reasonably to be satisfied of guilt beyond reasonable doubt: M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63.
The appellant submitted that, therefore, the task of this Court is to review the whole of the record of the trial and make its own independent assessment of the evidence in determining whether the accused was proved beyond reasonable doubt to be guilty of the offence: Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81.
The appellant submitted that the Crown had to show that the appellant was guilty of more than want of due care. The evidence clearly established that there was no indiscretion in the appellant's driving in the moments preceding the collision: there was no speeding, inattention or symptoms of fatigue. The pot hole was capable of interfering with the progress of the vehicle preceding the collision. There was no evidence that negatived the conclusion that the collision was caused by the circumstances described by the appellant.

Crown submissions

The Crown submitted that the critical issue for the jury was whether the Crown had proved beyond reasonable doubt that the appellant "was, at the time of the impact, driving the vehicle … in a manner dangerous to another person or persons", in the terms of s 52A(1)(c).
The Crown submitted that, by their verdict, the jury clearly rejected the appellant's explanation of the collision as being caused by the depression and expansion point in the road and it was open to the jury to do so. The conclusion that such an explanation was not a reasonable hypothesis consistent with innocence was supported by the evidence. The Crown adduced evidence that the depression in the road was only 55 millimetres in depth and was not such as to require repair by usual standards (in the view of Mr McArthur, who inspected the road surface on the bridge). There was further evidence showing that other motorists did not experience similar difficulty in navigating the depression and expansion point.
The Crown submitted that it was open to the jury to make an adverse finding as to the appellant's credibility in offering the "pot hole" explanation of the collision given that he had lied to police, in the same ERISP, about his recent drug use.
The Crown submitted that it was open to the jury to be satisfied that the appellant was inattentive to his responsibility to drive his heavy vehicle in a manner that avoided danger to other motorists on the narrow single-carriageway bridge. The evidence supported the view that the appellant was unable, and in fact did not, exercise the control and management of the truck required to avoid danger to others. The tragic result of the appellant's driving is further evidence from which the quality of his driving may be inferred: McBride v The Queen (1966) 115 CLR 44 at 50; [1966] HCA 22.
The Crown submitted that the appellant has not shown reason for this Court to conclude that the jury must have entertained a doubt about the appellant's guilt.

Consideration of ground 2

The uncontroversial legal principles relevant to the determination of this ground were stated by Meagher JA (McCallum and Button JJ agreeing) in Elwood v R [2016] NSWCCA 18: "[21] The question for this Court is whether it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt; in other words, 'whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt': Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113] (Hayne J, Gleeson CJ and Heydon J relevantly agreeing), citing M v The Queen [1994] HCA 63; 181 CLR 487 at 492-493. [22] In answering that question the Court has to make its own independent assessment of the sufficiency and quality of the evidence: SKA v The Queen [2011] HCA 13; 243 CLR 400. In doing so, it is required to give full weight to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, and has had the advantage of having heard and seen the witnesses: M v The Queen at 493. Ordinarily a reasonable doubt entertained by this Court would be one which the jury also ought to have experienced, except where the jury's advantage in seeing and hearing the evidence could have resolved that doubt. The jury's advantage is diminished but not removed where that evidence is or includes, as it does here, video recordings of police interviews given by the accused."
In Jiminez v The Queen (1992) 173 CLR 572 at 579; [1992] HCA 14, Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ described the exercise of determining whether driving is "dangerous" as follows: "The manner of driving encompasses 'all matters connected with the management and control of a car by a driver when it is being driven'. For the driving to be dangerous for the purposes of s 52A there must be some feature which is identified not as want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention. Although a course of conduct is involved it need not take place over any considerable period. Nor need the conduct manifest itself in the physical behaviour of the vehicle. If the driver is in a condition while driving which makes the mere fact of his driving a real danger to the public, including the occupants of the motor vehicle, then his driving in that condition constitutes driving in a manner dangerous to the public." (Footnotes omitted.)
The essence of the Crown case at trial was that the appellant was driving at the time of the collision without sufficient awareness and alertness and/or without sufficient or proper control of the truck in the circumstances.
I have read the whole of the evidence and made an independent assessment of the sufficiency and quality of the evidence, giving full weight to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt and has had the advantage of having heard and seen the witnesses.
The following people gave evidence: SC Brett Hobbins, who inspected the traffic collision site; Mr Arthur, Mr Aldus and Ms Harding, who were driving in the opposite direction to the appellant's truck; Mr Hatton, who had pulled over just before the collision and attended the scene; Mr Kleinig, an Roads and Maritime Services-authorised vehicle examiner; Mr McArthur, who was an inspector providing road maintenance services to Roads and Maritime Services; Mr Lwin, who was eating his lunch in the front passenger seat of the appellant's vehicle at the time of the collision; and Dr Perl. The ERISP involving the appellant was also before the jury.
The evidence regarding the condition of the road was that it was constructed of sealed bitumen and was dry at the time, and there were no contaminants or obstructions on the road surface. There was a metal expansion joint running across the bridge, with an indentation that was, on Mr McArthur's evidence, about three metres long behind the metal expansion joint. The indentation was 55 millimetres deep. It was established that the level at which Roads and Maritime Services deems depressions in a road to require maintenance or repair work is 60 millimetres.
Mr Arthur gave evidence that the truck that the appellant was driving quickly "veered" across double white lines into the lane of oncoming traffic, and appeared to lift or jump up onto the deceased's car after it had veered into the other lane. Mr Aldus' and Ms Harding's statements proved that the truck crossed suddenly onto the wrong side of the road. Ms Harding, who was not cross-examined, said "I saw the truck at the start of the bridge before all of [a] sudden he just came straight across the road in front of the black ute. The truck was completely on our side of the road".
Mr Kleinig gave evidence that the brakes and steering of the truck appeared to have been in working order prior to the collision, and that there were no mechanical defects or faults with the vehicle that might have contributed to the collision.
Mr Lwin, who was in the cab of the heavy vehicle, was eating his lunch and looking down at the time of the collision and did not observe the accident. He said that the appellant appeared normal and was not speaking slowly or falling asleep. Dr Perl gave evidence that a withdrawal state from methylamphetamine usually results in fatigue or drowsiness. The level of methylamphetamine in the appellant's blood suggested that he was in the withdrawal stage. This could cause slower reaction times when driving.
It was established that the appellant was an experienced driver who was familiar with the road. The heavy vehicle he was driving was equipped with power steering. It was open to the jury to take an adverse view about the appellant's credibility. The "pot hole" explanation for the collision was contained only in the appellant's ERISP. It was open to the jury to conclude that the appellant had lied to police, in the same ERISP, about his recent drug use.
It is unnecessary in the circumstances of this case to rely on the remarks of Barwick CJ in McBride at 50, namely that the immediate result of the appellant's driving is further evidence from which the quality of his driving may be inferred. The critical issue for the jury was whether the Crown had proved beyond reasonable doubt that the appellant "was, at the time of the impact, driving the vehicle … in a manner dangerous to another person or persons", in the terms of s 52A(1)(c). By their verdict, the jury clearly rejected the appellant's explanation of the collision as being caused by the depression and expansion point in the road. It was open to the jury to do so. The conclusion that such an explanation was not a reasonable hypothesis was supported by the evidence. The Crown adduced evidence that the depression in the road was only 55 millimetres in depth and was not such as to require repair by usual standards. There was further evidence showing that other motorists did not experience similar difficulty in navigating the depression and expansion point.
The appellant has not shown reason for this Court to conclude that the jury must have entertained a doubt about the appellant's guilt.
Leave to appeal should be granted on ground 2 but the appeal dismissed.

Ground 3 - unreasonable, unjust or manifestly excessive sentence

The trial judge summarised the seriousness of the offending in this way: "In view of Dr Perl's evidence that it was only a possibility that the offender was suffering any symptoms from withdrawal at 4.10pm on 11 August 2015 I am unable to be satisfied beyond reasonable doubt that the offender was in fact impaired in his driving ability at the time of the impact. However, his inattention to his responsibilities as a driver of a heavy vehicle on a narrow bridge brought about the catastrophic consequences I have outlined."
The trial judge made a series of findings regarding the appellant's subjective circumstances: 1. he came from a close and supportive family; 2. he has been generally employed since he left school after Year 11 (and has worked for the last 10 years as a truck driver); 3. he began using marijuana daily at age 19 and continued for 10 years, and from age 21 he started using amphetamines, which he smoked daily; 4. he was injured in the collision and has sleep disturbance and post-traumatic stress disorder; 5. he maintains his innocence and is thus denied the leniency that a plea of guilty attracts; 6. he is remorseful for the consequences of the collision and its impact on the deceased and his family (although this remorse is not a mitigating factor that can be taken into account under the Crimes (Sentencing Procedure) Act 1999 (NSW) as he does not accept responsibility for the offence); 7. he has reasonable prospects for rehabilitation.
The trial judge concluded her sentencing remarks as follows: "The offender is to be sentenced on the basis that he failed to manage his heavy vehicle in a manner so as to maintain the correct side of the roadway on a two-lane bridge in circumstances where it was imperative that he do so because of the dire consequences which could and did, in fact, result if he did not. The circumstances of the offence are such that the offender's moral culpability is significant and a full-time custodial sentence must be imposed. The sentence must deter other drivers, and truck-drivers in particular, from not attending to their obligation to avoid creating a risk of injury or death to other road-users."

Appellant's submissions

The appellant submitted that, whilst her Honour did not describe the appellant's moral culpability as high, the resultant sentence is higher than would be expected in relation to "momentary inattention" cases. The appellant attached a lengthy list of what were allegedly comparable cases.
The appellant submitted that it was common ground that the sentencing exercise had to take account of the guideline judgments in R v Jurisic (1998) 45 NSWLR 209; R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343. It was therefore incumbent upon the judge to form her own opinion consistent with the jury's verdict about the level of moral culpability involved, having regard to all the circumstances of the case.

Consideration of ground 3

To make good this ground, the appellant must satisfy the Court that the sentence imposed is manifestly excessive in the sense that it is unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321 at 325; [2000] HCA 54 (Gleeson CJ and Hayne J); Markarian v The Queen (2005) 228 CLR 357 at 370-371; [2005] HCA 25 (Gleeson CJ, Gummow, Hayne and Callinan JJ).
This Court would not substitute its own opinion for that of the primary judge merely because it would have exercised the sentencing discretion differently: Hughes v R [2018] NSWCCA 2 at [86]. As this Court said in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] per R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing): "Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error."
The maximum penalty for the offence acts as a legislative guidepost for an appropriate sentence: Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27]. The maximum penalty for the offence in this case was 10 years' imprisonment.
The trial judge sentenced the offender on the basis that he failed to manage his heavy vehicle in a manner so as to maintain the correct side of the roadway on a two-lane bridge in circumstances where it was imperative that he do so because of the dire consequences which could and did, in fact, result if he did not. When sentencing the appellant, the trial judge found that the verdict of the jury established that the appellant's account of why he had lost control of the truck had been eliminated by the prosecution as a reasonable possibility. Her Honour found that the appellant took an illegal drug on the day or days prior to driving on 11 August 2015, but was unable to be satisfied beyond reasonable doubt that in fact he was impaired at the time of the collision.
The trial judge found that the appellant's criminal history was minor, although the breaching of his section 9 bonds for prior criminal activity by committing this offence was an aggravating factor to be considered in sentencing. Her Honour was correct so to conclude. The appellant started using amphetamines and "ice" (methylamphetamine) when he was 21, which he smoked daily. The offences for which he was placed on bonds were stealing in order to obtain money for "ice".
The trial judge made a finding of special circumstances because of the accumulation of sentences (for the offences for which he was on bonds at the time of the collision), and because the appellant would benefit from a longer period of supervision on parole after his lengthy period in custody.
Having regard to the maximum penalty and all the circumstances of the case, the sentence imposed, a 2 year non-parole period and a 1 year additional term, was not manifestly excessive. It was neither unreasonable nor plainly unjust. To the contrary, it was well within the sentencing discretion of the trial judge. None of the many cases cited by the appellant establish the contrary.
Leave should be granted in relation to ground 3 but the appeal should be dismissed.

Conclusion and proposed orders

For the foregoing reasons I propose the following orders: 1. Leave to appeal granted on grounds 1-3. 2. Appeal dismissed on grounds 1-3. 3. Leave to appeal under Rule 4 of the Criminal Appeal Rules (NSW) refused on ground 4.
BELLEW J: I have had the advantage of reading the judgment of Payne JA in draft. I agree with the orders proposed by his Honour.
CAMPBELL J: I have had the considerable advantage of reading the judgment of Payne JA in draft. I agree with what his Honour has written concerning Grounds 1, 3 and 4.
I also agree with what his Honour has written in relation to Ground 2. I wish to add, however, that my own review of the evidence led, arguments made and directions given at trial did not leave me with the impression of a compelling Crown case. My reservations about the sufficiency and quality of the evidence supporting the appellant's conviction are assuaged by the consideration that the jury had the advantage that cannot be recreated in the Court of Criminal Appeal of seeing and hearing the witnesses give evidence first hand. Bearing this firmly in mind, I am not persuaded that the verdict of guilty was not open to the jury.

Endnote

The appellant's surname is also apparently spelt "Cvetkovski".

Amendments 24 May 2019 - Coversheet: added details of respondent's junior counsel, "E Jones". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 May 2019

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