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Legislation Cited: Crimes Act 1900 (NSW), s 52A
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), s 133
Evidence Act 1995 (NSW), s 191
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pt 9

Cases Cited: BK v State of New South Wales [2026] NSWCA 6
CCL Secure Pty Ltd v Berry [2019] FCAFC 81
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Dawson v R [2024] NSWCCA 98
Director of Public Prosecutions v Roder (a pseudonym) (2024) 281 CLR 18; [2024] HCA 15
Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155
El Seidi v R [2021] NSWCCA 303
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fuller v R [2024] NSWCCA 106
Gardiner v R [2023] NSWCCA 89
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57; [2001] HCA 22
Jameel v R [2026] NSWCCA 91
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844; [1985] HCA 58
Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
The King v AR (2026) 100 ALJR 545; [2026] HCA 10
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4
Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174
Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23

Category: Principal judgment

Parties: Yassin Hussein El Seidi (Applicant)
Rex (Respondent)

Representation: Counsel:
T Ramrakha (Applicant)
E Jones (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/504

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Yassin Hussein El Seidi, seeks leave to appeal against his convictions of one count of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm which were ordered by Culver SC DCJ on 15 March 2024 following a judge alone trial in the District Court. The applicant’s case at trial was that the Crown could not prove that it was not reasonably possible that he had experienced an epileptic seizure immediately prior to the collision and, therefore, he did not have voluntary and conscious control of the vehicle he was driving.

The only question to be determined at trial was whether the Crown had excluded the defence hypothesis beyond reasonable doubt.

On appeal, the applicant alleges that the trial judge erred by reversing the onus of proof by requiring the applicant to prove he had suffered a seizure of a type not previously experienced; by failing to accord procedural fairness to the applicant in particular findings that were germane to her Honour being satisfied that the applicant had not experienced a seizure immediately prior to the collision; and that the verdicts were unreasonable and could not be supported having regard to the evidence.

The Court (Adamson JA, Lonergan and Roberts JJ agreeing) held granting leave to appeal and dismissing the appeal:

Ground 1 – alleged reversal of the onus of proof by trial judge taking into account an absence of evidence from the applicant’s version of events

Ground 2i – alleged denial of procedural fairness arising from the significance placed on the absence of evidence

(1) In the verdict judgment, the trial judge correctly directed herself as to the onus of proof, including that it was not for the applicant to prove the possibility of a seizure and that no adverse inference could be drawn against him for choosing not to give evidence: [137].

(2) As part of the trial judge’s assessment of the whole of the evidence, her Honour was entitled to have regard to the versions of events which the applicant had given post-collision and to assess their support for the applicant’s case. It was also open to her Honour to give weight to the experts’ evidence including that seizures in any given individual tend to be stereotypical and that the applicant’s manner of driving immediately prior to the collision was inconsistent with his stereotypical seizures: [138]-[141], [149].

(3) It is not necessary for the Crown in its opening to outline all the evidence which is to be adduced if the forensic purpose of the evidence is obvious, or its tender could not reasonably take the accused by surprise. At the trial, the significance of such evidence was adequately foreshadowed and ventilated so as to put the applicant on notice of its potential forensic significance: [145], [149]-[150].

Gardiner v R [2023] NSWCCA 89 distinguished.

Re Minister for Immigration and Multicultural and Indigenous Affairs*;* ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 applied.

Ground 2ii – alleged procedural unfairness in the way the trial judge dealt with the position of the applicant’s car at the time of collision

(4) The position of the applicant’s car at the time of the collision was an agreed fact. Thus, there can have been no denial of procedural fairness in her Honour’s finding of this agreed fact: [151].

(5) The Crown made clear the way in which it put its case, and it was not necessary for the trial judge, during the trial, to give any indication of her reasoning process nor forewarn the parties of all possible reasons for failure: [152]-[155].

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Jameel v R [2026] NSWCCA 91; Fuller v R [2024] NSWCCA 106; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63; Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57; [2001] HCA 22 applied.

Ground 3 – alleged unreasonable verdict

(6) The Crown need only exclude beyond reasonable doubt that it was reasonably possible that the applicant’s driving could be explained by a seizure. A possibility which was no more than fanciful would still result in reasonable verdicts of guilt. It was for the trial judge to determine that question in light of the whole of the evidence: [158].

(7) The trial judge was not obliged to adjudicate between the different expert assessments of the prospect of the applicant having had a seizure pre-collision. The trial judge was obliged to take the experts’ opinions into account in her process of having regard to the evidence as a whole but was not bound by the view of the facts or the assumptions which the experts had been asked to make. The task of making findings of fact was for the trial judge and not the experts: [160]-[168].

Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65 applied.

Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174; Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4 distinguished.

Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844; [1985] HCA 58; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 cited.

(8) Having regard to all of the evidence in the trial, the verdicts of guilty were not unreasonable; the evidence is sufficient to exclude as a reasonable possibility that the applicant suffered a seizure immediately prior to the collision: [167]-[184].

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; Dawson v R [2024] NSWCCA 98; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155; CCL Secure Pty Ltd v Berry [2019] FCAFC 81; BK v State of New South Wales [2026] NSWCA 6 cited.

Director of Public Prosecutions v Roder (a pseudonym) (2024) 281 CLR 18; [2024] HCA 15; The King v AR (2026) 100 ALJR 545; [2026] HCA 10 cited.

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20; The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 applied.

JUDGMENT

1. ADAMSON JA: Yassin Hussein El Seidi (the applicant) seeks leave to appeal against his convictions of one count of dangerous driving occasioning death (contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW)) and one count of dangerous driving occasioning grievous bodily harm (contrary to s 52A(3)(c) of the Crimes Act). These convictions were ordered by Culver SC DCJ (the trial judge) on 15 March 2024 following a trial by judge alone which occurred on 7, 9, 12 and 14 February 2024. Her Honour’s reasons were delivered on 15 March 2024 (the verdict judgment).

2. The applicant had previously been convicted of both counts following a trial by jury in 2020 (the 2020 trial) but the convictions were quashed by this Court on 26 November 2021 and a retrial ordered: El Seidi v R [2021] NSWCCA 303. A further trial by jury took place in December 2022 (the 2022 trial) which resulted in a hung jury for both counts. The judge-alone trial conducted by the trial judge in February 2024 was the third trial. In the third trial, the transcript of some of the evidence which had been given at the earlier trials was tendered by the Crown without objection. A statement of agreed facts was also tendered.

3. On 2 August 2024, her Honour imposed an aggregate sentence on the applicant for a term of 5 years imprisonment, commencing on 28 February 2022 and expiring on 27 February 2027 with a non-parole period of 3 years and 3 months which expired on 27 May 2025. The applicant does not seek leave to appeal against his sentence.

4. Leave to appeal against conviction is required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on each of the grounds as none involves a question of law alone. The applicant also requires an extension of time as although a notice of intention to appeal was filed on 5 August 2024, the notice of appeal was not filed until 9 April 2026.

5. The proposed grounds of appeal (derived from the amended notice of appeal filed in Court at the hearing of the appeal) are:

1. The trial judge reversed the onus of proof by requiring the applicant to prove that he suffered a seizure of a type that he had not previously experienced.

2. The trial judge failed to accord the applicant procedural fairness in relation to:

i the finding that he had failed to mention certain facts in the accounts he gave following the accident; and

ii the finding that he must have veered from the middle of the left lane to the right-hand side of the left lane in order to collide with the rear right-hand side of the caged utility vehicle.

3. The verdicts are unreasonable and cannot be supported, having regard to the evidence.

Relevant statutory provisions

6. Section 133 of the Criminal Procedure Act 1986 (NSW) provides:

133 Verdict of single Judge

(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

Conclusion

7. For the reasons which follow, an extension of time and leave to appeal ought be granted but the appeal ought be dismissed.

The Crown case

8. The Crown case can be shortly summarised, although more detail will be provided later in these reasons, having regard to ground 3, which requires a consideration of all of the evidence, save that which was not accepted by the trial judge.

9. The Crown case was that at 12.10am on 1 January 2018, the applicant was driving his red 1998 Toyota Starlet (the Toyota) in a westerly direction on Brunker Road, Yagoona, from Rookwood Road towards Anthony Street. He had two passengers: Tegan Galea-Elson, who was seated in the front passenger seat, and Tahlia Mardini, who was seated in the left rear passenger seat. He overtook a Range Rover (the Range Rover) by passing it on the kerbside lane. Within a short distance of overtaking that car, he struck a Mazda caged utility vehicle (the utility) that was parked legally in the kerbside lane on the eastern side of Nelson Short Street. Ms Galea-Elson died as a result of injuries caused by the impact and Ms Mardini suffered injuries which amounted to grievous bodily harm, including a traumatic brain injury. Neither the driving conditions nor any mechanical defect or component failure of the applicant’s car contributed to the accident.

10. There was no issue at trial that if the applicant was driving voluntarily and consciously, he was driving dangerously. The defence hypothesis was the applicant had experienced an epileptic seizure and did not have voluntary and conscious control of the vehicle when it collided into the utility. The Crown accepted that the applicant had a history of epilepsy but submitted that the applicant did not suffer from a seizure at the time of the crash. The trial judge concluded that the prosecution had excluded the defence hypothesis as a reasonable hypothesis.

The trial

11. The only issue in the trial was whether the collision could reasonably be explained, having regard to the whole of the evidence, by involuntary driving caused by the applicant suffering an epileptic fit immediately prior to impact. The Crown was obliged to exclude this hypothesis beyond reasonable doubt.

The Crown opening

12. In addition to outlining other evidence in the Crown case, the prosecutor said of the evidence immediately pre- and post-collision:

So when it comes to what happened immediately before the impact, the Crown relies on the direct evidence of the two women in the Range Rover, and also that evidence of Ms Mardini. Those two women driving along Brunker Road, as you heard, were driving at about 10 kilometres below the speed limit in the outside lane. They had two toddlers in the back seat, and, as we’ve noted, they state that they noticed the Toyota Starlet just before those traffic lights at Nelson Short Street. You’ll also hear, your Honour, the evidence of the driver of the Range Rover [Ms Manase]****, that she observed, just before the Toyota Starlet impacted with the Mazda, that the Toyota Starlet veered right, so veered right from lane one to lane two.

Now, we say this was a conscious attempt to avoid the Mazda, veering right, but the reality was he clipped the passenger side of the Starlet on the back of the ute, and that impact resulted in the injuries and death. The other evidence we also rely on is those of the police who attended the scene. They spoke to the accused, the accused said things to them, and they also made observations of the accused which we say are significant when your Honour is considering whether there is a reasonable possibility that he had some type of epileptic seizure at the time.

(Emphasis added.)

13. The prosecutor also indicated in opening that the Crown would rely on the applicant’s words and conduct after the collision as follows:

What we will rely on is the accused’s actions and words immediately after the impact, the comments made to his doctor to the effect that he had been driving recklessly at a later date, evidence of Ms Mardini that Ahmed Issa, a friend of the accused, had told her that the accused was driving like an idiot that night. Of course, at the time of the impact there were no claims by the accused that he had a seizure or in the 12 months post the impact. Further, there are no medical records that would indicate that. The Court will hear from Professor Mark Cook as to his opinion that it’s unlikely that the accused did have a seizure at the time of the impact.

Ultimately, we say when the Court takes into account the evidence of the accused’s manner of driving immediately before the impact, a particular manner of driving that we say the accused had a tendency to do, the evidence of the accused’s actions and words immediately after the impact, the evidence of the expert, of the physical possibility that he may or may not have had a seizure, and evidence that he told a doctor words to the effect that he had been driving recklessly, we would say after considering all of that evidence that the Court will find that on the 1 January 2018 the accused was driving in a manner dangerous, that there was an impact and as a result of that impact and the accused driving Ms Galea-Elson died and Ms Mardini was left with permanent injuries.

The prosecution evidence at the trial

14. Many of the facts were agreed and set out in a statement of agreed facts which was tendered pursuant to s 191 of the Evidence Act 1995 (NSW). The applicant accepts many of the trial judge’s findings for the purposes of this appeal, including for the purposes of determining the unreasonable verdict ground. The narrative set out below is not a summary of the transcript but rather a narrative drawn from the significant amount of evidence in the trial, including the agreed facts (AF).

15. In the judge-alone trial, the following witnesses were called to give oral evidence in the Crown case:

16. Sergeants Brett Samuel and Derick Fenton, police officers; and

17. Professor Mark Cook, neurologist, who gave expert evidence.

18. Transcripts of the oral evidence given by the following witnesses at the 2020 trial were tendered as evidence in the judge-alone trial: Senior Constable Ricky Merz (who came to the scene of the collision) and Sally Forrest-Horder (a clinical nurse specialist at Liverpool Hospital).

19. Transcripts of the oral evidence given by the following witnesses at the 2022 trial were tendered as evidence in the judge-alone trial:

20. passengers in the Toyota: Ahmed Issa (the applicant’s cousin, who was a passenger in the Toyota for part of the journey but who was dropped off prior to the collision) and Ms Mardini (the passenger in the applicant’s vehicle who suffered grievous bodily harm);

21. occupants of the Range Rover: Ms Manase (the driver of the Range Rover) and Esther lnukihaangana (Ms Manase’s sister, who was the front-seat passenger in the Range Rover);

22. police officers and paramedics who attended the collision: Senior Constable Shazhad Jamal; Senior Constable Natalie Barrett and Sophia Dyson (a paramedic);

23. Dr James Kokkinos, a neurologist to whom the applicant was referred by his general practitioner, Dr Aladdin Matter; and

24. Dr Judith Perl, a clinical forensic pharmacologist.

25. The following witness statements were tendered or read onto the transcript as their evidence in the judge-alone trial:

26. Dr Matter (the applicant’s general practitioner) dated 28 November 2022;

27. Renee Craft (Custodial Corrections Branch) dated 2 March 2020 (to prove the absence of any indication of epilepsy while the applicant was in gaol); and

28. police officers who came to the scene of the collision: Senior Constable Brendan Small dated 1 January 2018, whose notebook was also tendered; Senior Constable Giovanni Banorcas dated 28 November 2022; and Constable Jessica Bruce dated 27 January 2018.

Before the collision

19. As at 1 January 2018, the applicant held a P2 Provisional Driver’s Licence in NSW which had been issued on 21 December 2017 (AF 1). On 31 December 2017 Ms Galea-Elson and Ms Mardini attended a party at Catherine Street, Punchbowl (AF 2). They arrived at the party between 7.30pm and 8pm. Ms Mardini did not drink at the party.

20. At around 11pm, the applicant collected Ms Galea-Elson and Ms Mardini from that party to give them a lift to another party in Chester Hill (AF 3). The applicant drove the Toyota (AF 4). Ms Mardini recalled that it was a two-door car. Ms Galea-Elson pushed the front passenger seat forward so that Ms Mardini could get into the back, before sitting in the front passenger seat herself. Ms Mardini introduced herself to the applicant who did not respond verbally but “looked [her] up and down”. Ms Mardini gave the following evidence:

And then [Ms Galea-Elson] pushed the seat back and jumped in and she was giggling sort of at the car that he was driving and she turned around and said, “It’s a mad car hey”. And I was like, “Mad car” and he just looked at us with a bad look on his face and he was like, “Yeah you know it’s a shit box but it still goes fast. Like it still flies” and then he was, we flew off from there.

21. Ms Mardini said in evidence that she could hear the applicant “revving through the gears” as the Toyota was a manual car and that “[i]t didn’t really look like he knew how to drive a manual car”. When asked to describe his speed, she said:

When you put your foot flat down if you’re going from zero to whatever. We were about 50 metres, 100 metres away from the roundabout at the end of the street so it was just a quick put his foot down and then we went around the bend. … he was flying around like he was, wasn’t slow, wasn’t the speed limit.

22. In the witness box, Ms Mardini demonstrated her movements in the car by rocking from left to right in her chair. She said, “it was a rocky ride” and “we weren’t comfortable”.

23. The applicant drove to a BP service station on King Georges Road in Wiley Park, where Ms Galea-Elson and Ms Mardini used the bathroom at the service station (AF 5). He then drove to a Pharmacy 4 Less in Lakemba, where he picked up Ahmed Issa (AF 6). Ms Mardini recalled going to these locations but did not recall what had happened after the stop at the pharmacy (due to traumatic amnesia). She recalled that the applicant had gone to a location where there was a Hungry Jacks and a BP service station. Ms Mardini and Ms Galea-Elson jumped out and used the bathroom at the service station while the applicant stayed in the car. She described the trip between the service station and the pharmacy as follows:

Again like we flew out and it was like, it was very, I just remember he, he was like cutting, when you’re flying in front of cars, it was just very in and out, in and out.

24. Ms Mardini explained that she was referring to going in and out of the lanes when she said, “in and out” and that they were on a main road (King Georges Road) for most of the time. When asked to estimate the applicant’s speed when driving down King Georges Road, Ms Mardini said:

I don’t want to sit here and say he was doing 100 kilometres just because that’s what it looked like, probably like 70, 80. … It wasn’t slow but.

25. Ms Mardini agreed that the applicant was “weaving in and out of cars” and did so more than once and said that he was “swerving”. She could not say whether he was using his indicator because she “wasn’t paying that much attention”. She recalled that the applicant pulled into a little side street behind the chemist, told them that he was going to see his cousin, slammed the door and got out of the car.

26. The applicant then drove to an address in Greenacre where he dropped off Mr Issa (AF 7).

27. Mr Issa said in evidence that his recollection was that the applicant “was driving just fine to be honest”. He recalled telephoning Ms Mardini, whom he knew had been involved in the collision, some months after the collision. However, he did not recall what he said to her and did not believe that he had said that the applicant was “driving like an idiot”. Ms Mardini’s evidence was that Mr Issa called her on 2 May 2018, after she had been discharged from hospital. Her evidence of the conversation was as follows:

He said, it was like “I’m Yassin’s cousin that you came to see at the chemist. My cousin[’]s very sorry”. He told [me] certain things I probably shouldn’t say that he told me. He said[,] “I know my cousin was driving like an idiot that night”. He said, like “He was driving silly but he didn’t mean to kill your best friend”.

28. Ms Mardini agreed that she had not mentioned this conversation when she first spoke to Sergeant Samuel on 24 August 2018.

The location of the collision

29. Brunker Road runs in an east-west direction where the applicable speed limit was 60km/h (AF 8-10). It was well lit with overhead lights and the bitumen road was in good condition (AF 11). The weather was fine and the road was dry (AF 12).

30. Brunker Road intersects with the larger Rookwood Road which runs north-south. There is a sign indicating a speed camera located on the eastern kerb of Rookwood Road facing south at the intersection of Brunker Road for northbound traffic. The speed camera only captures vehicles travelling in a southerly direction out onto Rookwood Road. The applicant was not detected by the speed camera, which is consistent with his passing the camera when he was not speeding or his not passing the camera. Sergeant Samuel considered that the applicant would have passed that speed camera on his route from Wangee Road to the location of the collision. Sergeant Samuel believed that the applicant was travelling to another party in Bass Hill and was therefore travelling in a westerly direction down Brunker Road.

31. Photos of the scene taken in daylight and downloaded from Google Earth depicted Brunker Road at the scene of the collision as an undivided carriage way with two lanes in either direction passing through a residential area with power poles and street trees and driveways from the carriageway which led to the residences. There were restrictions on parking in the kerb-side lane in both directions, signified by “no stopping” and “no parking” signs.

The applicant’s overtaking of the Range Rover in the kerbside lane

32. As the Toyota approached the intersection of Brunker Road and Nelson Short Street, the applicant overtook, in the kerbside lane (also referred to as Lane 1), a Range Rover which was travelling at about 50km/h in the outside lane (also referred to as Lane 2) (AF 13-14). Ms Manase was the driver of the Range Rover and had been driving for about 17 years. Her sister, Esther lnukihaangana, was seated in the front passenger seat. There were two young children, who were still toddlers, in the back of the Range Rover.

33. Ms Manase saw a “little red car” (the applicant’s Toyota) driving on her left side. She estimated her own speed to be 50km/h and the speed of the Toyota to be “at least 80 kilometres, 80 to 90”. She agreed that on 4 January 2018, she had made a police statement in which she had estimated the applicant’s speed as being “[a]round 80 at least”. In re-examination, she agreed that she had estimated that the applicant was travelling at about 90km/h when he first “came speeding past [the Range Rover] in lane 1 [the kerbside lane]”.

34. Ms lnukihaangana said that the Range Rover was driving along Brunker Road “at a low speed”. She heard the sound of a car engine and agreed that “within a matter of seconds of hearing the engine [she noticed] a car come out of nowhere and speed past the side of [the Range Rover]”. She said that the car was travelling “more than 60, 70-80”. At the time of the collision Ms lnukihaangana had been driving for five years (10 years by the time of the trial in December 2022). She noticed that the car was red and that its driver was male.

35. The intersection between Brunker Road and Nelson Short Street is controlled by traffic lights. The collision occurred 70m after these traffic lights and more than 400m away from the intersection between Brunker Road and Rookwood Road.

The collision

36. The utility was legally parked outside 73 Brunker Road (AF 15), about 40m east of Anthony Street (and west of Nelson Short Street), having been parked by its owner outside his residence near a tree. After the Toyota had overtaken the Range Rover from the kerbside lane, the front portion of the Toyota collided with the rear offside of the utility (AF 16).

37. Ms Manase’s recollection was that the Toyota was driving past her in the middle of the left (kerbside) lane and, as it approached the utility which was parked in the kerbside lane, it moved to the right and the front left hand side of the Toyota hit the back of the right corner of the utility. The impact made the Toyota spin and the utility was pushed up onto the kerb. This sequence of events took place after the intersection with Nelson Short Street (which was controlled by traffic lights). The Range Rover went through this intersection. Ms Manase agreed that the Toyota did not get into her lane in front of her before the collision.

38. Ms Manase said that the Toyota had made its way partly back into her lane (behind her) before the collision. She estimated that by the time of the collision the Toyota was halfway into her lane. The trial judge did not accept this aspect of Ms Manase’s evidence, on the basis that it was an inference as opposed to direct observation and was at odds with Sergeant Fenton’s assessment of the physical markings on the road. This aspect will, accordingly, not be taken into account on ground 3.

39. Ms Manase stopped her vehicle and tried to call Triple-0. However, as her phone was not working she used Ms lnukihaangana’s phone to call Triple-0. As she approached the Toyota, she saw that the applicant appeared to be unconscious and was slumped back to the right behind the steering wheel. Shortly afterwards, within a minute, the applicant started to scream. Ms Manase observed three other males pulling the applicant out of the vehicle. She recalled police and ambulance attended the scene.

40. Ms lnukihaangana recalled that the Range Rover went through the intersection (of Brunker Road and Nelson Short Street) and came to a stop on the other side. Ms lnukihaangana got out of the car to go to the site of the collision and call Triple-0.

The damage to the vehicles and the physical evidence of the collision

41. All of the damage to the utility was on the rear right hand side of the central tow bar (which was bent by the impact) below the cage on the tray of the utility. The location of the damage indicated that the Toyota went under the right side of the utility. As a result of the impact, the utility was propelled 10m (AF 17). It mounted the gutter, collided with a timber power pole on the southern kerb of Brunker Road and came to rest 1m from the power pole (AF 17). The impact between the front of the utility and the power pole caused the bull bar at the front of the utility to be bent and the bonnet of the utility to be forced backwards and upwards.

42. The Toyota spun in an anticlockwise direction and stopped in the middle of the roadway (AF 18).

43. There were gouge marks on the road which Sergeant Samuel ultimately considered could have been caused by either the utility or the Toyota.

44. The location of the collision was about 420m from the intersection of Brunker and Rookwood Roads. At this location, the camber (the slope from the middle of the road to the gutter) of Brunker Road on the side on which the applicant was travelling was 22cm. The effect of such a camber is that if a driver took his or her hands off the steering wheel, the vehicle would naturally veer to the left towards the kerb.

45. Mr Carroll, who appeared for the applicant in the judge-alone trial as well as the 2022 trial, objected to the evidence given by Sergeant Samuel as to the path of an uncontrolled vehicle on Brunker Road on the basis that it had not been foreshadowed. The trial judge rejected the objection and observed that the questioning about the camber of the road “naturally leads to this point” and allowed the evidence which was given on the voir dire to be admitted as evidence in the trial. This matter is relevant to amended ground 2ii (alleged denial of procedural fairness).

46. Further down Brunker Road in the applicant’s direction of travel, there is a sign which says, “[f]orm one lane”.

47. As referred to above, there were no mechanical defects or component failure which may have contributed to the collision (AF 19).

The immediate aftermath

48. Police and ambulance services arrived at the scene in response to a call or calls to Triple-0. The first police officer on the scene was Senior Constable Small, who arrived in a highway patrol vehicle some time between two minutes (12.13am) and six minutes after the impact (12.17am). A number of police officers arrived on the scene shortly afterwards.

49. The call to ambulance services went out at 12.13am. An ambulance was despatched and arrived at the scene at 12.33am.

50. Constable Bruce spoke with Ms Manase at the scene. Ms Manase told her:

We were travelling in the right lane towards Yagoona when the red car tried to overtake me on the inside lane. I don’t think he saw the parked ute until the last second and he tried to swerve to miss it, but the passenger side still hit it very hard and then it spun around and landed there.

51. Ms Manase also told Constable Bruce that the Toyota did not hit the Range Rover at all.

52. Senior Constable Barrett also spoke with Ms Manase who told her:

I was driving along Brunker Road when that car [she indicated the Toyota] undertook [sic] me and sped up to try and get past me but he misjudged it and slammed into the back of the ute.

Observations of the applicant after the collision

53. Ms lnukihaangana observed three or four males pull the applicant out of the Toyota. When he got out of the car he was “stumbling around and trying to walk and keep his balance”.

54. Senior Constable Merz saw the applicant leaning against a fence, surrounded by a group of males who were speaking in Arabic to him. He appeared to be conversing “normally” and was also on his mobile phone. Although he winced as he moved because he was injured, he was not impeded and “[h]is movements appeared to be sharp and deliberate [and] to the point”. Senior Constable Merz asked him to get off the phone. He complied with that request. Senior Constable Merz was concerned that the applicant might have suffered a neck injury. He asked the applicant not to move his head around but the applicant continued to look around and move his neck. It was the police officer’s impression that the applicant “appeared to understand … he didn’t present like someone who didn’t know what was going on”.

55. Senior Constable Barrett spoke to the applicant about 10 or 15 minutes after she arrived. At that time the applicant was sitting on the ground against the front fence of a house on Brunker Road. She observed that he had a bandage around his upper left arm and a gash to the top of his forehead. When she asked his name, he gave his first name. She recorded the following exchange in her police statement made on 20 January 2018:

The accused said, “What happened? Was I driving?” I said, “Can you tell me what day it is?” the accused said, “I don’t know. What happened?” I said, “Do you know where you were driving to?” The accused said, “I don’t know. Was I driving? Is anyone hurt?”

56. According to Senior Constable Barrett, the applicant continued to ask the same questions at least a couple of times for the short period of time during which she was with him. She agreed that her statement also included the following:

The accused continued asking the same questions and complained of severe pain to his left leg and after speaking with him for about five minutes and ensuring he remained conscious … whilst ambulance staff approached and assessed his injuries.

57. Senior Constable Barrett explained in her evidence that she engaged with the applicant because she needed to make sure that he did not lose consciousness because he had not yet been seen properly by the ambulance officers. In re-examination, Senior Constable Barrett said:

[The applicant] just appeared “zoned out.” I suppose just kind of staring straight ahead because he was facing where the vehicle had crashed, basically, so yeah, he just seemed very zoned out.

58. Ms Dyson, who was on duty as a paramedic on 1 January 2018, was with the applicant at 12.36am. By that time, he was out of his vehicle and was sitting with his back against the fence of a house with the police in attendance. The ambulance officers performed an initial assessment on the applicant to make sure that he was conscious and breathing. The officers then went to attend to the passenger who was more in need (the other passenger having already been “taken”). They confirmed with police that the applicant had been conscious throughout.

59. About 10 minutes after their initial assessment of the applicant, the ambulance officers returned to him and moved him into the ambulance so that they could assess him again with more light. Ms Dyson did not observe any signs which would be consistent with the applicant suffering an active seizure. She said in her police statement:

[The applicant] denied alcohol or drug use when questioned and did not display obvious signs of drug use. His vital signs (example skin colour and appearance, respiration, temperature, heart rate (pupil size) did not raise any suspicion of drug use. Behaviourally he was lucid, orientated and displayed normal speech patterns. The only unusual points were lack of emotion and apparent amnesia to events surrounding the crash. Emotionally he was flat in his response.

60. Ms Dyson confirmed in her evidence that there was “certainly nothing on that … night that made it really obvious that he’d taken any specific form of drug”.

The consequences of the impact

61. Ms Galea-Elson was pronounced dead at the scene as a result of injuries sustained in the impact (AF 20). Ms Mardini was conveyed to Liverpool Hospital in critical condition. The impact caused injuries amounting to grievous bodily harm, including: an extremely traumatic brain injury resulting in memory deficits and reduced information processing speed; facial, dental and eye orbit fractures; nerve damage to the left eye resulting in severe visual impairment; hearing impairment of the right ear; and substantial facial scarring (AF 21).

The applicant’s journey to and admission at Liverpool Hospital

62. The applicant was taken to Liverpool Hospital by ambulance where he was treated for lacerations. Ms Dyson confirmed that the applicant was loaded into the ambulance at 1.03am. The ambulance arrived at Liverpool Hospital at 1.24am.

63. Senior Constable Jamal and Ms Dyson accompanied the applicant in the ambulance to Liverpool Hospital. The applicant had a deep gash to his left arm close to his shoulder and was complaining of severe pain in his leg. On the way to the hospital, the applicant gave the paramedic his full name and address in response to her inquiry. The applicant asked what happened, whether anyone was hurt, whether he was at fault and about his car. In response to his question whether anyone was hurt, the paramedic told the applicant that someone had died. The applicant started to breathe heavily and was silent before asking repeatedly, “someone died, is that right?”. The applicant was given a bed in the Emergency Department of Liverpool Hospital. From that time, the involvement of the ambulance officers ceased.

64. Subsequently, after the applicant had been admitted to Liverpool Hospital, Senior Constable Jamal was asked by another officer to find out from the applicant who the passengers in the car were and what the password to the applicant’s phone was. The applicant gave him the names of the passengers and said that he did not know them well and had met them on Instagram. He also gave him the four-digit code for his phone.

The applicant’s arrest

65. At Liverpool Hospital the applicant was placed under arrest and his rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) were read and explained to him by Liverpool Custody Manager Sergeant MacDonald, following which he took part in a voluntary recorded interview (AF 23-24).

66. A blood sample was taken from the applicant at 2am on 1 January 2018 which analysis identified the following drugs, including Tramadol:

Codeine (free) 0.05mg/L

Benzoylecgonine 0.03mg/L

Delta-9THC acid 0.003 ml/L

Diazepam 0.05mg/L

Nordiazepam 0.03mg/L

Tramadol 0.64mg/L

67. The Tramadol had been purchased on 18 December 2017 from Bassam’s Pharmacy at Campsie and had been prescribed for the applicant by Dr Matter, the applicant’s general practitioner, for pain in the applicant’s right foot and ankle which had been injured and x-rayed on 24 November 2017. One script for 30 x 50mg capsules had been prescribed, without repeats. Dr Matter was unable to give further detail as his practice computer system had been affected by a virus.

The applicant’s recorded interview

68. Prior to the commencement of the applicant’s recorded interview, Senior Constables Banorcas and Arash Hashimi visited him in Liverpool Hospital. Senior Constable Banorcas’ evidence included the following:

I spoke with [the applicant] about how he came to be in hospital and how the crash happened. [The applicant] told me that he did not remember the crash but could not believe that he had hit a parked car. [The applicant] told me that he was driving the girls that he knows very well to a party in Chester Hill and that he remembers going through the red light camera on Brunker Road, Yagoona, and then lying on the foot path after the crash.

69. The applicant was interviewed by police in Liverpool Hospital. He said that all he remembered was that he was “dropping off the two girls to a party” and that he was driving along Brunker Road. He said that he remembered “waking up on the side of the road”, not being able to “get up [his] leg” and “end[ing] up in an ambulance”. He confirmed that the Toyota was his car and that he had recently passed the test for his P2 licence. He confirmed that he had two passengers in the car and that he was driving them from a party in Punchbowl and taking them to Chester Hill. He said that he did not recall what lane he was in or how fast he was driving. However he did recall that he was driving towards Potts Hill.

70. The applicant said, “[o]bviously [he] was travelling at the speed limit”, which he identified as being 50km/h. He denied having consumed any alcohol or drugs.

The applicant’s period in Liverpool Hospital after being interviewed

71. Ms Forrest-Horder was a registered nurse on duty at the Liverpool Hospital on 1 January 2018 when the applicant was an in-patient. She made the following clinical note at 7.42pm:

Patient requesting tramadol. Asked if he takes any illicit drugs, illegal drugs, ie. Heroin, ice, ecstasy et cetera. Denied same although questioned about taking tramadol. States takes once a week times two tablet. Asked patient if he takes them for pain or fun. Relied pain although unable to inform me of what type of pain.

Tendency evidence

72. The prosecution tendered a summary of the applicant’s traffic record up to the date of the collision to prove that the applicant had a tendency to drive at an inappropriate speed and to make inappropriate lane changes, weaving around other vehicles without leaving sufficient room. The line which reads “DEMERIT POINT SUSPENSION” indicates that the applicant was prohibited from driving from 21 July 2017 until 20 October 2017 as the demerit points he had collected resulted in a suspension for that period.

| Location | Date/ Time | Speed limit | Speed detected | | Hume Highway, Bankstown | 27 September 2016, 5.50pm | 60km/h | 92km/h | | Cross City Tunnel, Eastern Sydney | 28 October 2016, 1am | 40km/h | 55km/h | | Parramatta Road, Haberfield | 29 October 2016, 9.03am | 60km/h | 72km/h | | DEMERIT POINT SUSPENSION: Commencing 21/07/2017 to 20/10/2017 | | King Georges Road, Beverly Hills | 28 October 2017, 9.58pm | 60km/h | 76km/h | | Eastern Distributor, Darlinghurst | 31 October 2017 2.18am | 40km/h | 50km/h | | Cabramatta Road, Bonnyrigg | 1 November 2017, 7.25am | 60km/h | 73km/h | | Cabramatta Road, Bonnyrigg | 4 November 2017, 6.42am | 60km/h | 77km/h | | Ashford Ave, Milperra | 7 November 2017, 10:15pm | Proceed through red traffic light | | MacPherson Street, Mosman | 26 November 2017, 6.50am | 50km/h | 60km/h | | Woodville Road, Chester Hill | 28 November 2017, 12:14am | 40km/h | 51km/h | | Pacific Highway, Crows Nest | 8 December 2017, 11.50pm | 60km/h | 72km/h | | James Ruse Drive at Kissing Point Road, Oatlands | 20 December 2017, 3:12pm | Not give right change of direction signal with lights |

73. Police dashcam video footage of the last-mentioned entry on the table (which related to changing lanes without indicating) was tendered. It showed the applicant driving a red car along James Ruse Drive and overtaking from an outside lane into an inside lane and returning to the outside lane without indicating his change of lanes with the car’s indicator. The video showed that the brake lights of the vehicle in front of which the applicant entered the lane were illuminated when the applicant entered the lane. The audio of the footage recorded the police telling the applicant that his manner of driving was dangerous because he was changing lanes without indicating and not leaving enough room between cars to overtake safely.

74. In addition to the infringements shown on the table, there was evidence of the following further infringements.

75. At 1.35am on 24 September 2016, the applicant was driving a black Subaru when he was pulled over for a random breath test. At that time his provisional licence was subject to restrictions that he not drive between 11pm and 5am and that he not have more than one passenger under the age of 21 years. There were three passengers in the vehicle which the applicant was driving, a male and two females each of whom was under the age of 21 years. When asked by the police officer why he was not abiding by the conditions of his licence, the applicant responded that his passengers needed a lift home. He was issued with an infringement notice for driving between 11pm and 5am and carrying more than one passenger under the age of 21 years.

76. On 22 November 2016, the applicant was driving a Nissan Pathfinder. He was observed by police who stopped the vehicle because of his manner of driving which involved causing the wheels of the vehicle to undergo sustained loss of traction. There was a male passenger and a female passenger in the car at the time. The police issued an infringement notice to the applicant for causing sustained loss of traction.

Evidence relating to epilepsy suffered by the applicant

Medical records

77. The Justice Health records for the period during which the applicant was incarcerated do not indicate any episodes of epilepsy.

Evidence of Dr Kokkinos

78. On 1 April 2019, Dr Kokkinos, neurologist, saw the applicant, following a referral from Dr Matter which was made on the basis the applicant was “reported to be having turns”. The applicant told Dr Kokkinos that he had “averaged a turn every two or three months in recent times”; that he felt that he “has been having these turns since childhood” and that the “turns last between 20 and 60 seconds and are followed by a few more minutes during which he is not his normal self”. The applicant told Dr Kokkinos that the turns are heralded by a buzzing noise that no one else could hear and that he only had a partial recollection of what was occurring around him at the time of the turns, which were all similar, although they varied in intensity and duration.

79. Dr Kokkinos’ letter to Dr Matter also recorded the following (which was derived from speaking with the applicant’s father):

The father, however, never noticed turns in the past but has witnessed several turns since a motor vehicle accident on 1 January 2018.

…

Both the eyewitnesses and the patient feel that the turns are stereotyped in that they are similar but that they vary in intensity and in duration and that they are in general getting worse.

80. Dr Kokkinos also said:

I do recall him telling me that there was a time that he took some drugs, some illicit drugs. I think it was implied, and he drove a car with other people in the car and there was an accident and someone was killed.

81. Although Dr Kokkinos wrote in his letter to Dr Matter that on 1 January 2018, “he had taken some illicit substance, some illicit substance and was driving recklessly,” Dr Kokkinos could not recall whether the applicant had actually used the word “recklessly” or whether it was an assumption that the doctor made because the applicant had taken drugs.

82. Dr Kokkinos saw the applicant four times in 2019. He did not recall the applicant telling him that he had a seizure before the collision. Following an application by the prosecutor, the prosecutor put to Dr Kokkinos the following evidence which he had given in the 2020 trial in which the following exchange occurred:

Q … Doctor, did he ever tell you that he’d had a seizure immediately before the collision?

A No he didn’t state that.

83. Dr Kokkinos was asked about this evidence in the judge-alone trial in the following exchange:

Q. Were you telling the truth [when you gave that evidence]?

A. Well I’d like to think I tried to, I would say the truth.

Q. And the position is, isn’t it, that he never told you he had had a seizure before the collision in any of your consultations. Is that right?

A. Before the collision? I mean it’s a few years have passed so my memory isn’t as good as it was then. I don’t remember him saying that but I, it, it, it’s not something I think about every day. I, I don’t remember him saying there was, I don’t think he said he had a seizure before the collision. I, I would have thought I would have remembered that.

84. In cross-examination, Dr Kokkinos said that after receiving the results of an MRI scan and a four-hour EEG at Bankstown Hospital, he was “completely convinced [the applicant] had epilepsy”. Dr Kokkinos was also shown a video of the applicant’s turns, which he regarded as “highly characteristic for two seizures”. This led to Dr Kokkinos treating the applicant with Tegretol for epilepsy, which suppresses seizures.

Expert evidence of Professor Cook

85. Professor Cook’s letter of instruction and his two reports were tendered in evidence. He is a neurologist who, as at 2024, had been working in epilepsy for about 35 years. He said:

… I’m chiefly a practising neurologist, running a hospital epilepsy department and managing diagnostic and surgical decision-making processes around them. And I’m very closely involved with the roads authorities’ driving assessment committee down here, which I’ve been doing for about 30 years or so.

86. Professor Cook distinguished between “general epilepsies”, which refer to the onset of a seizure featuring electrical activity commencing simultaneously in all parts of the brain which “usually causes a blank spell or a major convulsive episode”, and “focal seizures” which begin in one area of the brain and may spread to other, nearby areas.

87. Either type can produce a tonic-clonic convulsion, which is when the patient blacks out, goes stiff and shakes. When a patient is in the tonic-clonic phase of a seizure (accompanied by convulsive jerking movements), the patient might turn blue, produce copious amounts of saliva and be unresponsive. This phase typically lasts for 40-60 seconds, after which patients are usually “quite confused for some time”.

88. Focal seizures may be quite subtle and may feature a warning of which a patient might be aware in the form of a sensory disturbance such as a smell, taste, auditory illusion or the sensation of tingling in one part of the body or movement. This can progress to loss of awareness, which is not necessarily complete. A patient may appear incompletely aware or a little confused to those around them for a period of 30-120 seconds, after which the patient makes a gradual recovery. Where a patient loses awareness and displays blank staring spells, they might behave in an unusual manner, often chewing, swallowing, fidgeting aimlessly with things or posturing with one arm. There can also be posturing with both arms, depending on the origin of the seizure and which parts of the brain are affected.

89. When asked whether the character of a patient’s focal seizure can change, Professor Cook said:

Well, generally they stay pretty much the same in character. This gentleman has pathology on either side of his brain, so it’s possible that some seizures might appear from one side and on other occasions from the other, but - but generally, they arise from one location fairly consistently, and their appearance is broadly similar. So there might be small variations. It’s also possible for the focal seizure to progress to a generalized tonic-clonic seizure. I think I - I mentioned that that’s unlikely to have occurred here because, one, it wasn’t witnessed, and it had a result in the accident, and that almost certainly would have been apparent when people attended the vehicle immediately after.

(Emphasis added.)

90. Professor Cook addressed the effects of seizures on a patient’s memory as follows:

… the parts of the brain that become involved in the seizure activity are intimately associated with the formation of memories typically, and so when patients lose contact, as we saw in the video, during that phase, they generally don’t have recollection of exactly what was going on, or they might have patchy and incomplete recollection of that component during the seizure itself, and then in the period afterwards they can be briefly very confused, and that smoothly recovers typically over minutes. Usually a few minutes; maybe five or ten minutes on occasion; rarely hours, but the patient’s recovery is a gradual process.

Now, afterwards the patient might be amnestic regarding the event, so even when a seizure has occurred, and even in the presence of others, they might later have no recollection of that because, again, the brain components required for storing the memory were abnormally affected by the seizure, and they’re not able to form a reliable memory of it. So it’s a very striking feature of seizures that - that people often have no awareness of it.

91. Professor Cook said that if a patient has a focal seizure in his consulting rooms he can generally continue the conversation with the patient after a few minutes.

92. Professor Cook accepted that the applicant had an unequivocal diagnosis of epilepsy (based on abnormalities revealed by MRI scan and EEG) and that he may have been suffering from seizures from childhood, although they were not noticed. He described it as “strange” that the applicant’s father had not noticed the seizures at any time before the collision but accepted that seizures may be “very subtle and may not be noticed by even those close by”.

93. Professor Cook acknowledged that it was possible that the applicant suffered a focal seizure prior to the collision but considered this to be unlikely having regard to his being able to drive in a complex manner. He accepted that the substances consumed by the applicant might have increased the risk of a seizure if they were accompanied by sleep deprivation.

94. In his oral evidence, Professor Cook explained that any focal seizure would have had to have been immediately prior to the collision because the applicant was driving in a “fairly complex manner immediately prior”. This assessment was “based on the witness descriptions”. Professor Cook said that “within the time frame here, you might have expected to see that the seizure was still continuing, had it occurred immediately prior to the accident”. He also considered it to be significant that the applicant was able to tell police that there were two girls in the car and explained:

… when you speak to people immediately after they’ve had a seizure, they’re typically far more confused than that. So often they are unaware of their own identity, for instance, much less who they’re with and where they are. That’s often a very striking feature.

95. Professor Cook also opined that the applicant’s conduct with Ms Dyson when he was “repeating things and asking questions” was significant “because the recovery is typically smooth, and to suddenly forget things that were earlier remembered, it would be an unusual feature, I think”.

96. Professor Cook was asked to address the opinion of Professor Ernest Somerville (a neurologist called in the applicant’s case, see below) in the following exchange:

Q. Professor Somerville, in his report, also stated that it was possible there was an epileptic seizure prior to the impact. Later in testimony you would have read he goes further and says it’s actually likely. Do you agree with him or disagree with him?

A. Well, I disagree that it was likely. I think, as I mentioned at the - in the previous report, I don’t think it could be completely excluded, but I don’t think there’s any basis on which to make that decision on the information available.

97. Professor Cook also said:

Q. … Now, finally, you’ve said in your report that it’s possible that the accused had an epileptic seizure leading up to the impact. Based on the information you’ve reviewed, and obviously the opinion of your colleagues, are you still of the view that it’s possible?

A. I think it’s always possible, but I think unlikely, based on the information that we have. And I think, you know, often when collisions occur as a result of seizures, we don’t have the advantage of witnesses available immediately at the scene - able to report people’s responsiveness and interaction. So we’re in an unusual situation here, where he was able to, and we have good witness accounts. And more often, the people are found after the accident sometime later, and there’s no way of determining exactly how interactive or how confused people were after the event. So here - here is a well-observed situation with good witnesses, and I think that impressed on me that this was less likely to have resulted from a seizure.

98. Professor Cook was asked whether the veering of the applicant’s car to the right at the last minute before the collision could be accounted for by a seizure. He said:

[There are] two categories of seizures. So the generalized seizure syndromes sometimes feature very brisk jerks of the limbs, similar to what you get when you’re drifting off to sleep at night. You have one of those jerks, and they can - it’s called a myoclonic jerk. They’re very brief, very high amplitude jerks. The movements that occur with focal seizures, as we saw in the video [taken at Royal Prince Alfred Hospital on 19 August 2019], with the posturing, are typically very slow, and I don’t think the posturing movement that occurred with the focal seizure that we saw could account for the very abrupt right turn that was executed at speed, to apparently avoid a vehicle. So again, I don’t think that’s likely to have resulted from the motor activity: the limb movement that we saw with the event.

99. In cross-examination, Professor Cook agreed that he had been provided by the prosecutor with a table entitled, “Summary of the accused’s actions after the alleged offence, timing, acts of the accused” and that it was a document on which he relied to provide his opinion. Professor Cook accepted in cross-examination that he had said in his first report:

I don’t think his behaviour immediately after the collision would necessarily suggest that he had a seizure immediately prior. As he is described by eyewitnesses as having been briefly unconscious and had head lacerations, so he obviously had a head injury, but recovered … quickly. A head injury like this might also account for repeated questioning and other features of his behaviour reported. But again, this is something which usually and gradually smoothly recovers. Given his rapid recovery from these behaviours, it seems unlikely that ingestion of substance or misrepresentation by the accused are responsible. I think the fact that he was able to report (as reported by witness, Inukihaangana) to the young men who assisted him getting out of the car immediately after the accident, that there were two girls in the car, suggests that he recovered awareness pretty quickly. This might occur with a seizure, but I don’t think there’s anything else [to] suggest that it was a cause. I don’t think there’s any other evidence that might suggest that the conduct is inconsistent with the accused having suffered the effects of a seizure.

100. Professor Cook agreed that the fact that the applicant was able to tell police that there were two girls in the car was a significant piece of information in coming to his opinion that the applicant was unlikely to have suffered a seizure immediately prior to the collision.

The video recording taken at Royal Prince Alfred Hospital on 19 August 2019

101. A video recording was taken at Royal Prince Alfred Hospital on 19 August 2019 which demonstrated the applicant having an epileptic seizure. Tests taken at the hospital indicated that the seizure that was captured in the video had originated in the right side of the brain.

102. Professor Cook noted that the applicant did not appear to be able to respond. He noted some movements and marked posturing of the left arm but no posturing of the right arm. Professor Cook considered that the video was “an excellent demonstration” of the loss of awareness, fidgeting and gradual recovery which were characteristic of focal seizures. He said:

… he’s not able to respond completely, though he might have some awareness of his surroundings because he appears to look towards those addressing him during the episode, but he’s not able to respond in any more complex manner, and then as it finishes, he gradually recovers after an initial period where he can’t respond at all, he’s then able to communicate.

103. Professor Cook agreed that the video depicted that the applicant gradually went from not being able to speak to being able to speak and to regaining control of his left arm which had been stiffening in an abnormal position during the seizure.

Expert evidence of Dr Perl regarding the blood sample taken from the applicant following the collision

104. Dr Perl explained that Tramadol is a synthetic drug with opioid-like effects, similar to those produced by morphine. It affects the serotonin system by making a user feel better and also has an analgesic effect as a pain killer. She regarded a result of .64mg/L as indicating high dose usage, such as might be used for extreme pain or cancer therapy, which would involve a dose of 400mg twice a day, which was significantly in excess of the dose prescribed by Dr Matter. Dr Perl confirmed that such a level could not be achieved by taking two capsules of 50mg twice weekly and that it would be necessary to take eight capsules every day to achieve such a level.

105. The effect of a particular dose of Tramadol on a user would depend on the user’s past use and whether the user had developed a tolerance for the drug. Dr Perl said:

When you use an opiate type drug on a regular basis then the sedating effects tend to diminish as do a lot of the impairing effects. There have been studies with tramadol in terms of performance impairment and certainly [a] dose of 100 to 200 milligrams would produce impairment but there have been no studies of people who chronically use it - that is, high doses daily - in terms of whether or not their performance, skilled performance is impaired to a significant degree. But I would expect with a blood level of 0.64 milligrams I would expect there to be drowsiness, sedation, slower speech, possibly slurring of speech, slower actions, less coordinated actions, slower reactions, your perceptions and judgment would be impaired so they are the expected effects at that sort of blood level.

… There's no study that has looked at the chronic usage of high doses and performance impairment. Certainly with some other opiates it has been shown that daily heavy users of opiates do develop enough tolerance so that there may be minimal impairment.

106. Dr Perl described the effect of that concentration of Tramadol on a user who was not a heavy user:

… tramadol has central nervous system depressant effects as alcohol does and it impairs things such as your perceptions, your judgment, your decision-making, things like your vigilance would be impaired, your reaction times would be a lot slower and all of those functions are very important in driving ability because driving is a very complex task and every aspect of it is required to minimise any collision occurring. So with that sort of level I would expect impairment of at least most of the functions if not all of the functions.

107. Dr Perl gave evidence about the other drugs found in lesser concentrations in the applicant’s blood but considered that Tramadol was the predominant factor in any impairment.

108. In cross-examination, Dr Perl confirmed her conclusion:

Therefore, based on the lack of signs and symptoms and lack of information relating to his drug use, I am unable to form a firm opinion relating to the effects of drugs.

109. She also said:

There's no defined concentration for any drug other than alcohol at which you can say every persons going to be impaired. So it's not like alcohol in that regard. With any other drug there is a range of, of responses to that drug dependent on things such as your dosage, your blood concentration, interactions with other drugs and your experience with the drug. So there are many factors that can impact on whether or not you experience impairment at all or a significant impairment or possibly no impairment.

110. Dr Perl accepted that one of the contraindications for Tramadol is epilepsy because it can produce seizures or trigger seizures in someone who is prone to seizures.

111. Dr Perl said that Tramadol has a half-life of about four to seven hours: that is, every four to seven hours the blood concentration of Tramadol will halve. She agreed that if a person was substantially impaired as a result of using Tramadol at 12.10am, they would also be substantially impaired at 12.30am, 1.30am and 2.30am.

Evidence of Sergeant Fenton on incident reconstruction

112. Sergeant Fenton was in charge of incident reconstruction with the Forensic Imaging Section in the Forensic Evidence and Technical Support Command of the NSW Police Force. His measurements established that 30% of the Toyota (its front left side) came into contact with 27.5% of the utility (its rear right side). Sergeant Fenton’s measurements established that it was possible for both the Toyota and the utility to fit side-by-side in the kerbside lane. Sergeant Fenton accepted that his diagrams depicted the vehicles parallel to the kerb and explained that he depicted them in that way because he was unable to ascertain from the evidence which was available to him what their angles were prior to collision.

113. It was an agreed fact that the Toyota was travelling down the middle of the kerbside land (AF 9). This fact was consistent with the evidence of Ms Manase. That agreed fact together with the gouge marks on the road and the location of the collision damage indicated that the Toyota must have swerved to the right or the collision damage would have been closer to the centre line of the utility (this was the way in which the trial judge reasoned, although her Honour found that she could not say how sharp or abrupt that righthand movement was). This was important evidence in the Crown case since a righthand movement to avoid the utility was consistent with voluntary driving and inconsistent with a seizure.

The evidence in the defence case

Professor Somerville

114. Professor Somerville’s report of 22 August 2019 was tendered in the defence case. He also gave oral evidence and was cross-examined.

115. Professor Somerville said that patients are unreliable in their assessment of their own memory during a seizure and said that it was likely that the applicant would not be able to remember whether he had a seizure immediately prior to the collision.

116. Professor Somerville gave the following evidence about seizures:

… a focal seizure … will start in one part of the brain, the rest of the brain is still functioning. If that’s a small area that - where the seizure initially involves, then the patient may be perfectly awake, is aware that something is going on. In this case I think the accused was aware of a buzzing sound. They can remember that. They can maybe even tell people about it while it’s happening. But at that point it’s called a focal aware seizure.

What can then happen is the abnormal electrical activity in the brain will then spread to involve larger parts of the brain, including the other side of the brain. And at that point, the person will tend to go into a trance-like state, become unresponsive, may have some automatic movements, and won’t remember it afterwards. At that point, it’s called a focal impaired awareness seizure.

What can then happen, which I don’t think has happened in this case, is that the seizure can spread through the rest of the brain, and the person will then have a tonic-clonic, or what’s often called grand mal seizure, where they develop severe stiffening and jerking of the whole body, turn blue, often bite their tongue, often wet themselves, and then afterwards are profoundly confused.

(Emphasis added.)

117. Professor Somerville was asked about two scenarios in the following exchange:

Q. … if the car proceeded in a straight line at high speed without braking, how does that inform your opinion as to the likelihood of a seizure as being an explanation?

A. Well, it makes it more likely.

118. Professor Somerville opined that steering input was not inconsistent with a seizure although it occurred in the minority of cases. Indeed, he opined that it was more likely than not that the applicant had a seizure immediately prior to his veering right. He said that in any given patient seizures tend to be “stereotyped” in that they “tend to follow the same pattern”:

Q. And on an alternate scenario, being that the car was subject to a movement to the right, but again without braking, how does that impact upon your opinion as terms of likelihood?

A. So if there was movement in a direction that might have reduced the chance of a crash, then that would reduce the likelihood of it being a seizure, but certainly doesn’t exclude it.

The Crown closing

119. The prosecutor accepted that the Crown was obliged to exclude as a reasonable possibility that the applicant had an epileptic seizure immediately prior to the collision (with the consequence that his driving was involuntary). The prosecutor continued:

The Crown says, firstly, there’s no reasonable possibility that the accused was having an epileptic seizure at the time of the impact, but instead that the accused was driving in a manner that was objectively dangerous at the time he impacted the [utility] killing Ms Galea Elson and harming Ms Mardini. And the actions after the crash can be explained by either a head injury or that the accused was pretending to be disorientated. Not, as has been suggested, post-ictal behaviour after an epileptic seizure.

The key evidence that we do rely on are the accused’s actions and words immediately after the impact, comments made to his doctor, the accused’s doctor, to the effect that he had been driving recklessly, and the evidence of Ms Mardini as to his driving prior to the impact, and we also say that that’s supported by Mr Issa’s evidence, her evidence that Mr Issa had told her that the accused was driving like an idiot that night.

Of course, at the time of the impact, there were no claims by the accused that he had had a seizure or in at least the 12 to 18 months post the impact. In the expert evidence in this case, the experts are considering the question as to whether it’s possible that, in the precise moments leading up to the impact with the Utility, that the accused suffered a seizure that caused involuntary movements. The specific involuntary movements that could cause such an impact was the stiffening of the right leg, such that the accelerator was depressed. And if you accept the evidence of Ms Manase, that he involuntarily also moved his arms or hands to steer to the right of the Utility just before the impact.

As you heard both experts agree that the accused has an anomaly in his brain that can cause epilepsy and that he does have epilepsy. You also heard there’s no evidence to suggest that anyone had noticed any seizure-like actions until 2019. The experts agree that it’s possible that the accused was having an epileptic seizure at the time of the impact. However, Professor Somerville, in his evidence in 2022, went so far as to say that it was not just possible, but it was probable. We would say that Professor Cook, however, has consistently stated that it is possible but unlikely that the accused had an epileptic seizure at that time. Both experts relied heavily on the evidence of driving just prior to the impact and the accused’s actions in the period a few hours after the impact.

Ultimately, your Honour’s findings of fact will inform whether you form the view that the accused has raised on the balance of probability that there is a reasonable possibility that the accused was affected by an epileptic seizure and such not the driver of the car at the time of the impact. Once that is raised, we would say that the Crown has excluded that reasonable possibility beyond reasonable doubt.

(Emphasis added.)

120. As to the last-minute movement of the Toyota to the right immediately before the impact, the Crown said:

Now, Ms Manase gave a clear description of what happened. And we would say that she is the best placed person to say what occurred. She saw the accused drive past at speed. The speed made her slow to almost a stop, and she watched. She watched from a distance of about 15 metres as the accused’s vehicle moved from the middle of the inside lane to the right of that lane as it neared the parked Mazda. That is, we say, it veered right. She then watched the impact unfold as the accused passenger side impacted with the rear driver side of the Mazda. She also recalled this almost instantly to Constable Bruce and that’s in the MFI bundle at page 83.

(Emphasis added.)

The defence closing

121. The defence closing highlighted the evidence of Professor Somerville. No details are germane to the grounds of appeal.

The verdict judgment

122. The verdict judgment is relevant to the grounds of appeal in a limited way. First, it is relied on to support grounds 1 and 2. Secondly, where evidence in support of the Crown case was not accepted by the trial judge, it ought not be taken into account in an assessment of whether the verdicts were unreasonable.

123. The following extracts from the verdict judgment are germane to one or more of the grounds:

ONUS AND STANDARD OF PROOF

…

The fact the accused has given an account to the police, to the effect that he does not remember what was happening just before and at the time of the collision, does not alter the burden of proof. There is expert evidence in the trial that there is a possibility the accused suffered from a seizure, just before and at the time of the collision, such that he was not voluntarily driving the vehicle. It is not for the accused to prove that possibility is true.

…

The accused has not given evidence in the trial proceedings. As the accused bears no burden of proof in respect of any fact that is in dispute, there is no obligation on the accused to give evidence. His decision not to give evidence cannot be used against him in determining the appropriate verdict. That decision cannot be used as amounting to an admission of guilt. There can be no inference or conclusion based upon the fact that the accused decided not to give evidence. That decision cannot be used to fill any gaps that might exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case, or in assisting the Crown to prove its case beyond reasonable doubt. The Court cannot speculate about what might have been said by the accused if he had given evidence. After all, the accused did give an account in his interview with police.

…

TENDENCY EVIDENCE

…

There is no challenge to the circumstance that the accused did drive in these instances that the Crown relies upon as tendency evidence, transcript 14 February 2024, p 242. It furthermore is not challenged that the accused has previously been speeding and changing lanes inappropriately, transcript 14 February 2024, p 242. The combination of these instances does establish that the accused had a tendency to drive while speeding and to change lanes inappropriately, including by weaving around other moving vehicles without leaving sufficient room.

…

DIAGNOSIS OF THE ACCUSED’S SEIZURE DISORDER POST-IMPACT

…

Dr Kokkinos at first said that the accused did not tell him that he had a seizure before the impact. Upon further questioning about this, Dr Kokkinos stated,

“I mean, it’s a few years have passed, so my memory isn’t as good as it was then. I don’t remember him saying that. I don’t think he said he had a seizure before the collision. I would have thought I would have remembered that,”

Exhibit C, tab 24. MFI 2, page 103.

It can reasonably be concluded that the accused did not tell Dr Kokkinos that he had a seizure just before the impact. As a matter of common sense, given the gravity of such a representation, one would infer that Dr Kokkinos would have written it down or would have remembered that, but that did not happen. This is relevant, because the accused did tell Dr Kokkinos that his turns are heralded by a buzzing noise and that he later has a limited recollection of what was occurring around him at that time and can remember some parts of the period of the turn.

With respect to the time of the impact, the accused has never spoken of hearing a buzzing noise or of remembering any part of a turn. Instead, his account is that he simply remembers nothing of the journey from the intersection of Brunker and Rookwood Roads or the impact. I wish to be very clear. The accused has the right to silence. He is not obliged to give an account, but to the extent he has given an account, it is noted what was not included in his account.

…

THE SUBMISSIONS CONCERNING THE EXPERT EVIDENCE

…

Ultimately, it is difficult to discern whether either professor is more accurate as to the degree of likelihood or otherwise of the seizure. Significantly, both experts agree it is at least possible the accused had a seizure or that he drove consciously and then experienced a head injury. His post-impact conduct might even render the existence of a seizure likely, as opined by Professor Somerville was the case. This court, however, as the tribunal of fact, must consider all findings of fact made in this circumstantial case. That includes the expert evidence and post-impact conduct, but does not stop at the expert evidence.

(Emphasis added.)

124. The trial judge set out her reasoning to verdict in the following concluding passage of the verdict judgment:

RESOLUTION

The evidence in this case includes the following established findings of circumstantial evidence as outlined above:

1. The accused had a tendency to drive by speeding and inappropriately changing lanes. This includes the driving conduct of this nature as depicted in the video in exhibit C, tab 6. In that video, the accused can be seen just 11 days before the impact driving at an inappropriate speed and inappropriately changing lanes, weaving around fast-moving vehicles without indicating and causing one car to suddenly apply its brakes when the accused went in front of it.

2. Earlier on the evening of impact, the accused was saying that his car “still goes fast, flies.” It was New Year’s Eve and he had two young women in his car. He then drove in a way consistent with showing off, cutting in and out of lanes, swerving between cars, flying in front of cars. This driving conduct is entirely consistent with the tendency evidence.

3. Just prior to the impact, the accused’s vehicle was speeding excessively in a 60 kilometre per hour zone, at least at 70 kilometres per hour, but more likely 80 kilometres per hour or more, enough to make Ms Manase’s Range Rover shake as the accused’s car went by. The accused’s vehicle was travelling straight in the centre of its lane on the left-hand side of the roadway and undercutting Ms Manase’s vehicle, and in a short distance from the parked ute, it veered right in a manner consistent with an inadequate and belated attempt to avoid the parked ute. This excessive speed of the accused’s car and movement right in the short distance between the parked ute and Ms Manase’s vehicle did not leave adequate room to adequately manoeuvre around the parked ute. This movement of the accused’s vehicle is consistent both with the tendency and the evidence of how the accused was driving earlier that evening as observed by Ms Mardini. The accused’s answer in his ERISP that he was driving at the speed limit is unreliable, as his credibility is weakened by the lies he told concerning his use of tramadol and drugs. Accordingly, the accused’s response in this regard is put to one side.

4. Whilst both Professors Cook and Somerville disagreed about the likelihood or unlikelihood of the accused having had a seizure just prior to the impact, both agreed that:

a) it was at least possible the accused had a seizure, with Professor Somerville opining it was likely; and

b) the accused’s post-impact behaviour could also be accounted for by head injury of the accused; and

c) the accused is reported to generally have stereotypic seizures.

In this regard, it is found that the accused reported to Dr Kokkinos that he typically would hear an auditory buzzing just prior to experiencing a seizure and that he would remember parts of the period of the seizure. Whilst there is no onus on the accused to give any account of the incident, he did say in his ERISP that he did not remember anything after the intersection of Brunker and Rookwood Roads until he woke up at the side of the road. He did not say anything about hearing a buzzing sound or remembering any part of the period up until impact. This is not consistent with his stereotypic seizures as recorded by Dr Kokkinos, but is consistent with head injury.

In light of all these circumstances, it is a very remote possibility to consider that, despite the accused’s tendency to drive in a particular way and despite him driving in that same way earlier in the journey undertaken by him that evening, the accused should, instead of driving in that same way, experience a seizure previously unobserved in him and not observed by the authorities in his time in custody for the following six months, and drive involuntarily in exactly that same way, but without his usual experience of his later stereotypical seizures as described by Dr Kokkinos. That is not a reasonable possibility.

In the combination of all the findings in this circumstantial case, there is only one available rational or reasonable inference, namely that the accused did not have a seizure whilst driving. That is, the possibility of him having had a seizure is not a reasonable possibility in the circumstances. It is found beyond reasonable doubt he was voluntarily and consciously driving in a manner dangerous to other persons. It, therefore, is found that all of the elements of the two charged offences are proved beyond reasonable doubt.

Contested evidence accepted and not accepted by the trial judge

The contest between Ms Mardini and Mr Issa

125. The trial judge noted that Ms Mardini’s evidence of the manner of the applicant’s driving in the earlier part of the night’s journey was not disputed. Her Honour considered that the absence of speed camera detection did not undermine the reliability of Ms Mardini’s evidence. Her Honour accepted Ms Mardini’s evidence that the applicant was “flying in front of cars” and “cutting in and out”. The trial judge did not accept Mr Issa’s evidence that he was definite that the applicant was not driving like an idiot or that he did not believe that he had told Ms Mardini that the applicant was driving like an idiot.

The use which could be made of the applicant’s lies

126. The trial judge accepted that the applicant lied about not having taken drugs on the evening of the collision but noted that the Crown had not relied on this as a lie amounting to a consciousness of guilt. Accordingly, the trial judge confirmed that this lie could only be used in assessing the credibility of the applicant’s account. Her Honour found that this did not amount to a consciousness of guilt but that evidence of his post-accident conduct was relevant to whether he had suffered a seizure.

127. The trial judge rejected the Crown’s submission about the use which could be made of the applicant’s statements post-accident that he did not know where he was or what was going on. Her Honour considered that these statements could be explained by a head injury.

Whether the applicant told Dr Kokkinos that he had driven recklessly

128. The trial judge did not made a finding which accepted the Crown’s submission that the applicant had told Dr Kokkinos that he had driven recklessly.

The grounds of appeal

Grounds 1 and 2: alleged reversal of onus and denial of procedural fairness

129. Both grounds 1 and 2 challenge what the applicant said about the collision in accounts given post-collision. Mr Ramrakha, who appeared on behalf of the applicant, addressed these grounds together.

130. He submitted that in circumstances where there was a wide range of possible seizures, the Crown was obliged to exclude every possible seizure. He submitted that the defence hypothesis was, ultimately, that the applicant had experienced a focal impaired seizure, which was of the variety which had been seen and recorded in Royal Prince Alfred Hospital some years after the collision. He further submitted that her Honour was not entitled to take into account the absence of evidence of typical symptoms of a seizure (which was heralded by a buzzing sound) in circumstances where the absence of such evidence may have been the result of the applicant’s choice not to give evidence.

131. Mr Ramrakha also submitted that there was a denial of procedural fairness in the trial judge taking into account the absence of a history from the applicant about a buzzing noise (a typical symptom of his seizures) immediately prior to the collision in circumstances where the Crown had not placed any express reliance on the absence of a buzzing noise in the applicant’s post-collision representations. This matter will be separately addressed after the other matters regarding grounds 1 and 2 have been considered.

The applicant’s versions of the collision and his conduct

132. The evidence of what the applicant said about the collision was significant to the question whether the reasonable possibility of a seizure had been excluded by the Crown beyond reasonable doubt and will therefore be addressed in the context of ground 3 (see below).

133. However, for present purposes, it is helpful to collate the evidence (much of which is referred to above) as to the applicant’s versions.

| Date, time | Location | Applicant’s version | | 1.1.2018, 6.45am | Liverpool Hospital (to Officer Banorcas) | Recalled driving girls he knew to a party in Chester Hill, going through red light camera on Brunker Road and then lying on the footpath after the collision. | | 1.1.2018, later | Liverpool Hospital (in ERISP) | He was dropping off two girls and going along Brunker Road. He woke up on the side of the road subsequent to the collision. | | 1.4.2019 | To Dr Kokkinos | He experienced “turns” (not associated with the collision at that stage) which were heralded by a “buzzing noise” which as part of the turn that the applicant could remember. Dr Kokkinos indicated that an important feature of true seizures is that they are stereotyped. | | He did not give any history of having a seizure before the collision. | | He took drugs, drove a car, was involved in a collision and someone died. |

Expert evidence of what was depicted in the footage taken when the applicant was experiencing a seizure on 19 August 2019 at Royal Prince Alfred Hospital

134. As set out above, Professor Cook said that the video indicated that the applicant displayed marked posturing of the left arm in circumstances where the seizure originated in the right side of his brain and that he was not able to respond although he may have some awareness of his surroundings. The applicant recovered gradually to a point where he was able to communicate again.

Other relevant evidence

135. Ms Craft said that there were no relevant medical issues related to a seizure which had been recorded for the purposes of Justice Health while the applicant was in custody.

Consideration

The absence of evidence of the applicant hearing a buzzing sound prior to the putative seizure

136. Mr Ramrakha submitted that, by taking into account the absence of evidence from the applicant of a buzzing sound prior to the collision, the trial judge had, in effect, reversed the onus of proof.

137. The extracts from the verdict judgment that appear under the heading “Onus of proof” demonstrate that her Honour was conscious that the Crown bore the onus of proof and that no adverse inference could be drawn against the applicant from his not giving evidence at the trial in the exercise of his right to silence. Her Honour expressly said that it was not for the applicant to prove the possibility of a seizure. Further, the trial judge said that the fact that the applicant did not give evidence could not be used to fill in gaps in the Crown case or strengthen the Crown case. It was common ground that these principles were correctly stated.

138. The trial judge was entitled as part of the assessment of the whole of the evidence in the trial to have regard to the versions which the applicant had given and to assess their consistency and support for the hypothesis that he had experienced a seizure immediately prior to the collision (with the consequence that his driving was involuntary). In this context, it was open to her Honour to have regard to the circumstance that the applicant neither attributed his conduct immediately pre-collision to a seizure, nor said that he recalled experiencing any buzzing sensation (which he subsequently found was an indication that he was about to have a seizure). I do not accept Mr Ramrakha’s submission that her Honour treated the applicant’s failure to mention a buzzing sound as an implied admission (in the Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23 sense) that he had not had a seizure prior to the collision. This construction is not open on her Honour’s reasons in the verdict judgment.

139. It was also open to her Honour to have regard to the circumstance that when the applicant was consulting with Dr Kokkinos about his seizures in 2019, he mentioned the collision but did not attribute the collision to a seizure and did not say that he had had any seizures at the time of the collision or at any time prior to the collision.

140. Further, it was open to the trial judge to regard the applicant’s alleged memory loss (from the intersection between Rookwood and Brunker Roads to his waking up on the footpath after the collision) over a distance of more than 400m as inconsistent with the applicant having a seizure which was typical of the seizures he experienced post-collision. The applicant usually had some recollection of a typical seizure, including the recollection of a buzzing sound. Her Honour was entitled to give weight to the common ground between the experts that seizures in any given individual tend to be stereotypical: that is, they follow the same pattern. Further, it was open to the trial judge to reject a suggestion that the applicant was in a seizure state (and therefore unable to remember) from the intersection between Rookwood and Brunker Roads and the area proximate to the collision.

141. While her Honour was entitled to take into account the evidence that a person experiencing a seizure may continue to drive, the trial judge was entitled to accept Professor Cook’s evidence that the applicant’s manner of driving was inconsistent with his stereotypical seizures, such as the one depicted in the video. The trial judge was also entitled to regard as objectively improbable the hypothesis that the applicant was not in control of the manual car which he was driving at the speed of 70 to 80km/h in the middle of the lane overtaking another car on a road that had a camber to the left, which would have caused a car to move to the left, but which swerved to the right immediately prior to impact with the utility. Her Honour was also entitled to regard as significant that the seizures which had been witnessed depicted the applicant posturing with the left side of his body (whereas an involuntary swerve to the right would have required posturing on the right side of his body).

Alleged denial of procedural fairness arising from the significance placed on the absence of evidence of a buzzing sound

142. As referred to above, there is a further aspect to the applicant’s complaint about what the trial judge made of the absence of a history of the buzzing noise being given by the applicant in his post-collision statements about what had occurred. It was submitted on behalf of the applicant that the trial judge attributed a forensic significance to the absence of evidence of buzzing which went beyond the Crown case as opened and closed and therefore amounted to a denial of procedural fairness.

143. In support of this submission, Mr Ramrakha relied on the following passage from Gardiner v R [2023] NSWCCA 89 (Gardiner) at [134] (Adamson JA, Button and McNaughton JJ agreeing):

A trial judge’s obligation to raise with a party a matter, adverse to that party, arising from the demeanour or conduct of that party or of a witness called by that party, is part of the duty to accord procedural fairness. As with other matters of fairness, it is not necessary to raise a matter which is clearly in issue. Thus, a trial judge is not obliged to alert a witness to the possibility that the witness’s evidence will not be accepted, when there is other evidence in the trial contrary to that witness’s evidence. However, when the trial judge proposes to take into account a matter for which there may be an answer and which the party affected is unlikely to appreciate will be taken into account adversely, it is incumbent on the judge to raise it with that party, so that the party has an opportunity to be heard.

144. In Gardiner, the trial judge (in the context of a judge-alone trial) took the applicant’s demeanour in the dock into account against the applicant in assessing his credibility. Further, her Honour’s reasons did not identify what aspect of his demeanour was taken into account and when that demeanour had been exhibited, which also led to a ground that her reasons were inadequate. This Court held that taking into account an unspecified aspect of the applicant’s demeanour which had not been identified to the parties when it occurred amounted to a denial of procedural fairness and said:

137 The general principle is that the tribunal of fact (in this case, the trial judge) is to decide the case solely on the basis of the evidence. Nevertheless, it has been accepted that it would be unreal to expect a tribunal of fact to exclude from consideration the demeanour of witnesses in the well of the court. If a matter is to be taken into account which is not evidence (such as demeanour in the dock or the well of the court), then procedural fairness requires the trial judge to draw it to the attention of the parties in a timely manner so that the party affected can have an opportunity to address that matter. This is particularly so as the attention of counsel is usually, and necessarily, on the witness box and the bench and not on the behaviour of the accused person in the dock. By contrast, the trial judge can see the whole court and is in a good position to see the accused in the dock and make observations as to the person’s demeanour.

138 A trial judge’s observation as to the matter observed (if there is a possibility of its being significant) ought be disclosed to the parties as soon as the relevant observation has been made so that the party affected can obtain instructions and respond to the suggestion.

145. In the present case, the matter consideration of which was said to amount to a denial of procedural fairness was, unlike in Gardiner, the evidence of the significance of the buzzing sound and the evidence that seizures tend to be stereotypical. This is an important difference since parties (and the tribunal of fact) ought assume that evidence has been adduced because it is relevant to an issue in the trial. If its forensic significance is unclear or could take a party by surprise, it is necessary for the tendering party, particularly when it is the Crown in a criminal trial, to indicate what use is sought to be made of it. This is usually done in the Crown opening. However, it is not necessary for the prosecutor to outline all of the evidence which is to be adduced in the Crown case as long as the forensic purpose of the evidence is obvious or its tender could not reasonably take the accused by surprise. The boundaries of these general principles will depend on the facts and circumstances of the particular case.

146. Professor Somerville, who gave evidence in the defence case noted that the applicant was, prior to a stereotypical seizure, aware of a buzzing sound as heralding a focal aware seizure (which may turn into a focal impaired awareness seizure). Similar evidence was given by Dr Kokkinos in his letter of 1 April 2019 to Dr Matter. As referred to above, it was common ground between Professor Cook and Professor Somerville that seizures in a given person tended to follow the same pattern. The reports of these experts and Dr Kokkinos’ reporting letter had been exchanged before the 2020 trial.

147. Although the Crown did not expressly open or close its case by reference to the buzzing noise which typically heralded the applicant’s seizures, it did place emphasis in opening and closing on the stereotypical nature of seizures in a particular patient. There was no objection to the evidence about the buzzing sound which typically heralded a seizure in the applicant: indeed, both parties relied on such evidence.

148. It is also important to note that the trial judge simply recorded the absence of evidence that the applicant heard buzzing associated with the pre-collision period. Her Honour also noted that the period of amnesia (from the intersection between Brunker Road and Rookwood Road to waking up on the footpath) was consistent with the applicant having suffered a head injury in the collision (as evidenced by a gash to his head) but not consistent with a stereotypical seizure (following which he tended to recall the buzzing noise which preceded it).

149. I consider that the significance of a buzzing noise was adequately foreshadowed and ventilated in the evidence to put the applicant on notice of the potential forensic significance of his not reporting any buzzing noise prior to the collision. The evidence of a buzzing noise was a typical indicator of the applicant’s seizures and the stereotypical nature of seizures had no other relevance in the trial than to the issue whether the applicant suffered a seizure pre-collision. I am not persuaded that there was any practical injustice which arose from the evidence of buzzing not having been referred to in the Crown opening: see Re Minister for Immigration and Multicultural and Indigenous Affairs*;* ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 (Lam) at [38] (Gleeson CJ).

150. For these reasons, I am not persuaded that ground 1 or ground 2i have been made out.

The significance of the pre-collision movement of the Toyota

151. Ground 2ii is in a slightly different category since it relates to the position of the Toyota in the kerbside lane. As referred to above, it was an agreed fact that the applicant was travelling in the middle of the kerbside lane as he approached the utility. It follows that evidence was not required to prove the existence of that fact and could not be adduced to contradict or qualify that fact: s 191 of the Evidence Act. Thus, there can have been no denial of procedural fairness in her Honour finding that prior to the collision, the applicant’s vehicle was driving in the middle of the kerbside lane.

152. The basis for the allegation of denial of procedural fairness, which was developed by Mr Ramrakha in the course of oral argument, appears to be that the Crown opened on the Toyota veering right from the kerbside lane to the centre lane and yet closed on the Toyota veering from the middle of the kerbside lane to the right of the kerbside lane. He argued that the case which was put to the experts was that the applicant had performed a “complex” driving manoeuvre, which depended on his actively steering towards the right.

153. Her Honour’s finding that the applicant must have veered from the middle of the kerbside lane to the right side of that lane in order to have collided with the rear right-hand side of the utility is a necessary inference from the measurements taken by Sergeant Fenton of the lane width, the width of the respective vehicles, the camber of the road (which had the effect that if a vehicle was uncontrolled, it would tend to veer towards the kerb rather than to the centre of the road) and the eyewitness evidence, particularly that of Ms Manase.

154. In order for a denial of procedural fairness to be made out, there must be “practical injustice” (in the sense used in Lam at [38] (Gleeson CJ)). The difference between a rightward movement from the kerbside lane to the right edge of the kerbside lane and a rightward movement from the kerbside lane which impinges on the centre lane is a matter of degree. I do not discern anything in the expert opinion evidence which indicates that this difference would have any practical consequences. The reason for this is that the swerving action, which overrides the effect of the camber of the road, is inconsistent with a seizure and consistent with a voluntary act of driving to avoid an obstacle.

155. Further, the Crown having made clear the way in which it put its case concerning the position of the vehicles and the use to be made of the applicant’s post-collision statements, it was not necessary for the trial judge in the course of the trial to give any indication of her eventual reasoning process. Indeed trial judges in criminal judge-alone trials ought generally refrain from giving a running commentary. Like the jury, such trial judges are required to decide the case on the whole of the evidence and ought refrain from any prejudgment before the cases have been closed and the final addresses have been delivered. While the authorities for the proposition that a decision-maker is not obliged to give a running commentary in real time of the reasoning process tend to come from civil jurisdictions, they are also applicable to trials by judge alone: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592, applied in Jameel v R [2026] NSWCCA 91 at [73] (Weinstein J, Kirk JA and Lonergan J agreeing); Fuller v R [2024] NSWCCA 106 at [41] (Mitchelmore JA, Sweeney and Huggett JJ agreeing); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48]-[49]. Nor is a decision-maker required to forewarn a party of all possible reasons for failure: Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [31].

156. The allegation of procedural unfairness in ground 2ii has not been made out.

Ground 3: alleged unreasonable verdict

157. The approach to be taken when assessing the reasonableness of a conviction by a judge alone is the same as that after a jury trial: to determine whether it was open to the tribunal of fact to be satisfied of the applicant's guilt beyond reasonable doubt. So as not to divert itself from that task, the appeal court is to view the trial judge's reasons for verdict with circumspection: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [83]; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [16]; Dawson v R [2024] NSWCCA 98 (Dawson) at [153]-[154]. The approach to be adopted is that adopted in Dawson: this Court ought not accept evidence in the Crown case which was rejected by the trial judge.

158. The Crown case was circumstantial. The following passage from The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (Baden-Clay) at [47] is apposite:

For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.

(Emphasis in original and footnotes omitted.)

159. As referred to above, the competing hypotheses were:

160. the applicant drove the Toyota voluntarily up until the time of the collision; and

161. the applicant had a seizure immediately prior to the collision which rendered his driving at that time involuntary.

162. The applicant submitted that it was not reasonably open to the trial judge to be satisfied beyond reasonable doubt that the Crown had excluded hypothesis (2). Mr Ramrakha relied principally on the evidence of the experts to the effect that it was “possible” that the collision could be explained by a seizure sustained by the applicant immediately prior to the collision. Further, he submitted that the trial judge failed to resolve the difference of opinion between the experts as to the prospects of the applicant having suffered a seizure immediately prior to the collision. He submitted that, in these circumstances, the Crown had not discharged its onus.

163. Two initial observations may be made. First, the Crown need only exclude beyond reasonable doubt that it was reasonably possible that the applicant’s driving could not be explained by a seizure. A possibility which was no more than fanciful would still result in reasonable verdicts of guilt. Secondly, as is evident from the passage extracted from Baden-Clay above, it was for the trial judge to determine that question in light of the whole of the evidence in the trial and not for the experts to determine the question dispositively on the basis of the material with which they had been briefed.

Alleged failure to give reasons for adjudication between expert opinions

162. The submission regarding the trial judge’s alleged failure to adjudicate between the two experts and give reasons for the adjudication will be dealt with first. Mr Ramrakha relied on Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174 (Wiki) in which this Court upheld an appeal based on the trial judge’s failure to give adequate reasons for preferring one expert over another. He submitted, in substance, that the trial judge must have rejected Professor Somerville’s opinion that it was likely that the applicant had suffered from a seizure immediately prior to the collision but that the trial judge had not explained in the verdict judgment why his opinion was rejected or the opinion of Professor Cook preferred.

163. Mr Ramrakha also submitted in writing, in support of this aspect of ground 3:

Issue in the applicant’s trial was not joined on whether there was a possibility that the accident was caused by the applicant’s experience of a seizure. Issue was joined on the likelihood of that possibility, with Professor Cook opining that it was unlikely and Professor Somerville opining that it was likely. It was never suggested that the hypothesis was fanciful or a matter of conjecture: Barca v The Queen [1975] HCA 42, (1975) 133 CLR 82 at 104. Accordingly, unless there was a good reason to reject the possibility, verdicts of not guilty should have been returned: Velevski v The Queen [2002] HCA 4.

The Court should find that upon a proper analysis of the evidence, there was no good reason to reject the possibility, such that the Crown had not negatived the reasonable possibility that the accident had been caused by a seizure.

164. In Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4 (Velevski), the prosecution case was that the appellant had murdered his wife and children. The defence case was that the hypothesis that his wife had murdered their children and killed herself could not be excluded. The appellant was convicted at trial and his appeals to this Court and the High Court were dismissed. Experts who gave evidence at the trial opined as to the two hypotheses and to the consistency of particular items of evidence with each of the hypotheses. One of the experts, Dr Bradhurst opined that the applicant’s wife could have inflicted wounds on the twins. Gleeson CJ and Hayne J said:

32 … If [the jury] accepted Dr Bradhurst’s evidence on these matters they then had to consider whether the possibility that Mrs Velevska had in fact done these things had been excluded beyond reasonable doubt. That was a question which required consideration of human behaviour, not scientific analysis. It depended upon much more than what Dr Bradhurst said in evidence. It was a question to be assessed on the whole of the evidence against the appellant. Perhaps most importantly, it was a question which could properly be affected by the jury’s assessment of the evidence which the appellant gave, and the explanation he offered of his conduct during and after the time his children had undoubtedly been murdered.

…

34 It is apparent, then, that the two questions we have identified as central did not turn only upon matters requiring expertise. The jury’s acceptance of the evidence which did require expertise by no means compelled a verdict of acquittal. In particular, accepting that a person could effect the various manoeuvres that Mrs Velevska would have had to undertake if she had murdered the children did not require the jury to conclude that this was a reasonably possible explanation of what had happened.

(Emphasis in original.)

165. Of the nature of expert evidence, their Honours said at [47]:

… it is to be recalled that the evidence now in issue is expert evidence of opinion. It is not evidence of facts. … Other considerations intrude in relation to expert evidence, not least being the consideration that such a witness can give evidence only by reference to facts which will have to be established otherwise. …

(Emphasis in original.)

166. In the present case, the expert evidence depended on the facts by reference to which the experts formed their opinions. The facts on which opinion evidence is based must be proved by admissible evidence: Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65. The correlation between the facts on the basis of which the opinions were based and the facts as found by the tribunal of fact affects the weight to be given to the opinions: Paric v John Holland (Constructions) Pty L**td (1985) 59 ALJR 844; [1985] HCA 58; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [85] (Heydon JA).

167. As her Honour noted in the verdict judgment, it was common ground that it was at least possible, from a medical standpoint, that the applicant had a seizure pre-collision which had rendered his driving involuntary. Whether this possibility remained a reasonable possibility or had been excluded beyond reasonable doubt depended on the trial judge’s findings in relation to the evidence of fact in the trial. As was said in Ramsay v Watson (a civil trial) at 645:

The jury were entitled in considering this aspect to give weight to the opinion of an experienced physician skilled in the relevant branch of medicine who had examined the patient. He gave his opinion as his inference of probability rather than as a logically established certainty. But to argue in the circumstances that it offended against the rules of logic is to mistake the nature of rational inference and of intellectual persuasion as to probability in the attribution of events to causes. That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves “Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?”. In this case his Honour in his summing-up instructed the jury that this was their task; and no ground is shown for impugning their conclusion.

(Emphasis added.)

168. In these circumstances, it was not necessary for her Honour to “adjudicate” between the different expert assessments of the prospects of the applicant having had a seizure pre-collision. The trial judge was obliged to take the experts’ opinions into account but was not bound by their view of the facts or the assumptions which they had been asked to make as her Honour was entrusted with the finding of facts and not the experts. The applicant has not identified any inadequacy in her Honour’s reasons.

169. For these reasons, this aspect of ground 3 has not been made out.

Whether the Crown was required to prove beyond reasonable doubt that the applicant had completed a complex vehicular manoeuvre by steering to the right prior to impact

170. The applicant submitted that it was fundamental to the Crown case that he had not suffered a seizure immediately prior to impact, that he had steered right prior to the collision and that, as such, the Crown was required to prove that fact beyond reasonable doubt. Mr Ramrakha relied on Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 (Shepherd) in support of this proposition. I do not accept this submission. The evidence (direct eyewitness and inferences from damage to the vehicles) which tended to prove that the applicant had swerved to the right to avoid the utility was, to borrow the analogy used in Shepherd, a strand in the cable and not a link in the chain. Its probative force, if established, was to exclude the hypothesis that the applicant had suffered a seizure immediately prior to the collision. However, there was a wealth of other evidence, which was relied on by the Crown, which tended to exclude this hypothesis, including the applicant’s statements and conduct (referred to below) post-accident. I am not persuaded that the right hand manoeuvre of the Toyota had to be proved beyond reasonable doubt.

Consideration of the whole of the evidence relevant to the critical issue

171. The applicant submitted in this Court that the question whether the Toyota moved rightward prior to the collision was crucial. Mr Ramrakha submitted that the trial judge’s finding that it did was not reasonably open in light of the following: alleged deficiencies in Ms Manase’s evidence; an alleged concession obtained from Ms lnukihaangana about the lack of movement of the Toyota; Sergeant Fenton’s evidence about the location of the vehicles prior to impact; and inferences to be drawn about the position of the Toyota in the kerbside lane from Ms lnukihaangana’s evidence about her feeling the Range Rover shake while the Toyota was overtaking it. These matters will be addressed in turn.

Ms Manase’s evidence of the position of the Toyota and the utility

172. Mr Ramrakha submitted that Ms Manase’s observations of the rightward movement were unreliable because she could not have seen the manoeuvre and was not entirely focused on the events on the road. However, she was not cross-examined on that basis and therefore did not have an opportunity to respond to such a submission.

173. Further, her capacity to observe what had occurred was demonstrated by her evidence of the point of impact between the Toyota and the utility (on the left side of the Toyota and the right side of the utility) which accorded with the physical evidence as depicted in police photographs. Ms Manase also gave accurate evidence as to the resting points of both vehicles following the impact.

174. There was no suggestion in Ms Manase’s cross-examination that her evidence was either a reconstruction or untruthful. Although Ms Manase’s evidence as to the proportion of the applicant’s car that was in the middle lane after veering to the right was not accepted by the trial judge, this was insufficient to impugn the balance of her evidence. As the tribunal of fact, the trial judge was entitled to accept part of Ms Manase’s evidence and reject another part of it: Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201 (Lord Blackburn), followed in CCL Secure Pty Ltd v Berry [2019] FCAFC 81 at [94] (McKerracher, Robertson and Lee JJ); BK v State of New South Wales [2026] NSWCA 6 at [232] (Adamson JA).

Alleged concession from Ms lnukihaangana about the lack of movement of the Toyota prior to the collision

175. Mr Ramrakha submitted that Ms lnukihaangana’s evidence that she could not say whether the Toyota moved to the right before the collision because it happened too fast amounted to a denial that it had moved to the right before the collision. This conclusion does not follow. Further, Ms lnukihaangana described the Toyota “clipping” the utility, which is consistent with the Toyota moving to the right before impact (having regard to the agreed fact that, immediately prior, it had been travelling down the middle of the kerbside lane). Her Honour was entitled to regard Ms lnukihaangana’s evidence as supporting the Crown case that the Toyota had veered to the right before impact.

Sergeant Fenton’s evidence of the position of the vehicles

176. Mr Ramrakha submitted that Sergeant Fenton’s expert opinion was that the Toyota had been travelling parallel with the road markings at the point of impact and that this evidence was inconsistent with the Crown case that the Toyota veered to the right before impact. I reject this interpretation of Sergeant Fenton’s evidence. Sergeant Fenton stated that he had depicted the vehicles in positions parallel to the kerb because he had to make some assumption as to their position (in the absence of other evidence) and that he had made that assumption because it was “neutral”, not because it was correct. Sergeant Fenton’s evidence was based on the position of the vehicles post-collision and the road markings. It did not take account of the eyewitness evidence of Ms Manase or Ms lnukihaangana. Thus, the “assumption” made by Sergeant Fenton for the purposes of the diagrams he prepared to be tendered in the trial could not form a basis for rejecting the inference that the Toyota had veered to the right immediately prior to impact with the utility.

The position of the Toyota in the kerbside lane when overtaking the Range Rover

177. Mr Ramrakha sought to challenge the agreed fact that the Toyota was in the middle of the kerbside lane when it was overtaking the Range Rover. For the reasons given above, s 191 of the Evidence Act precludes that submission, which ought be rejected. Further, the agreed fact was supported by the evidence of Ms Manase and Ms lnukihaangana, who were not cross-examined about that aspect of their evidence.

178. The basis for Mr Ramrakha’s challenge in this Court was that it could be inferred that the Toyota was closer to the right hand side of the kerbside lane than the middle of that lane from Ms lnukihaangana’s evidence that she felt the Range Rover shake as it was overtaken by the Toyota. However, the shaking was consistent with the high speed of the Toyota as it overtook the Range Rover, as Ms lnukihaangana observed.

The acceptance by Professor Cook that a person suffering from a seizure could drive imperfectly

179. Mr Ramrakha submitted that the evidence that a person suffering from a seizure could continue to drive, albeit imperfectly, with apparent deliberation, was sufficient to overcome the evidence of the Toyota moving to the right immediately prior to impact.

180. I reject that submission. The strength of the Crown’s circumstantial case is to be adjudged as a whole in order that the weight of the evidence can be assessed. In The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 it was said at [48] (Gummow, Hayne and Crennan JJ):

Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.

181. As referred to at length in the discussion of grounds 1 and 2, the expert evidence as to seizures did not determine the question whether the applicant was suffering a seizure immediately prior to the collision. The effect of the expert evidence was that it was, having regard to the applicant’s subsequent experience of seizures which were accepted to arise from a brain abnormality which had been present since childhood, possible (Professor Cook) or likely (Professor Somerville) that he had suffered a seizure immediately prior to the collision. Whether the Crown had excluded this as a reasonable possibility was a matter for the trial judge on the basis of the whole of the evidence.

The probative value of the tendency evidence

182. Tendency evidence is a species of circumstantial evidence: Director of Public Prosecutions v Roder (a pseudonym) (2024) 281 CLR 18; [2024] HCA 15 (Roder) at [23]. Accordingly, it can be taken into account with other evidence once the tribunal of fact is satisfied of the tendency alleged: Roder at [24]; see also The King v AR (2026) 100 ALJR 545; [2026] HCA 10.

183. Mr Ramrakha’s submission that the tendency evidence by itself cannot exclude the possibility of seizure may be accepted but it is not to the point. The tribunal of fact is to have regard to the tendency evidence (assuming that the tendency is established, which the trial judge considered it was, and I agree) and adopt the process applied by the majority in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [16] and [64] as described in Roder at [24] as follows:

In Hughes v The Queen, the majority in this Court explained that with tendency evidence, "[t]he trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to [determining] the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue" (emphasis added). The process of reasoning involved is similar to the manner in which an assessment of the significant probative value of the evidence is undertaken by the trial judge for the purpose of determining its admissibility, namely, by first assessing the strength of the evidence in establishing the tendency and then considering "the extent to which the tendency makes more likely the elements of the offence charged". In the language of Shepherd, the tendency is an “intermediate fact” that the prosecution seeks to establish and rely on as circumstantial proof of the elements of the offence. Unless the tendency is an “intermediate fact” which is “indispensable” to proof of guilt, it need not be proved beyond reasonable doubt.

(Footnotes omitted.)

184. The tendency evidence was highly probative in the present case since it established the tendency for which the Crown contended in the recent past which was replicated in the applicant’s manner of driving on the night of the collision. Indeed it was open to the trial judge to regard the collision itself as a consequence of the applicant’s tendency to drive at an inappropriate speed and to make inappropriate lane changes, weaving around other vehicles without leaving sufficient room.

Conclusion on ground 3

185. Having reviewed all of the evidence in the trial, I am not persuaded that the verdicts of guilty were unreasonable. The evidence of Ms Mardini concerning the applicant’s driving shortly before the collision; the evidence of Ms Manase and Ms lnukihaangana of the position of the Toyota and its speed and the applicant’s manner of driving; the rightward movement of the Toyota within the kerbside lane immediately prior to the collision; the respective positions of the damage to the Toyota and the utility; the camber of the road; the nature of the applicant’s post-collision seizures; and the tendency evidence of the applicant’s manner of driving, when taken together, are sufficient to exclude as a reasonable possibility that the applicant suffered a seizure immediately prior to the collision.

186. None of the arguments advanced on behalf of the applicant by Mr Ramrakha causes me to doubt the applicant’s guilt of the offences charged. Ground 3 has not been made out.

Extension of time and leave

187. As the appeal was fully argued, I am disposed to grant an extension of time to appeal and leave to appeal although I regard the grounds of appeal as no more than arguable.

Proposed orders

188. For the reasons given above, I propose the following orders:

189. Extend the time for filing the application for leave to appeal and the draft notice of appeal to 9 April 2026.

190. Grant leave to appeal.

191. Dismiss the appeal.

192. LONERGAN J: I agree with Adamson JA that grounds 1 and 2(i) and 2(ii) of the appeal should be dismissed for the reasons given by Adamson JA. With respect to ground 3, the alleged unreasonable verdict ground, having carried out my own assessment of the evidence, its nature and sufficiency, and having considered the subsidiary arguments raised by the applicant on this ground, I am satisfied, for the reasons articulated by Adamson JA, that this ground is not made out. I agree with the orders proposed by Adamson JA.

193. ROBERTS J: I have had the benefit of reading in draft the judgment of Adamson JA. I agree that grounds 1 and 2 should be dismissed for the reasons expressed by her Honour. As to ground 3, as explained by Adamson JA, it is critical to bear firmly in mind the principles applicable to the assessment of a circumstantial Crown case. I agree with and respectfully adopt the reasoning and conclusions of Adamson JA concerning the evidence, taken together, which is sufficient to exclude as a reasonable possibility that the applicant suffered a seizure immediately prior to the collision. Upon my own independent assessment of that evidence, I am satisfied that it was open to the trial judge to be satisfied of the applicant’s guilt beyond reasonable doubt. Accordingly, I agree with the orders proposed by Adamson JA.

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