Mansweto v R

Court of Criminal Appeal (NSW)|2018-08-10|Before: Meagher JA, Hoeben CJ, Fagan J

Date of Decision: 20 June 2017 Before: McLennan SC DCJ File Number(s): 2014/185147

Judgment

THE COURT: On 30 August 2016 the applicant pleaded guilty in the District Court to two counts of dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW). The offences occurred on 21 June 2014 when the applicant lost control of a car he was driving on Canoona Avenue, Windsor Downs. The vehicle came off the road to its right, failing to take a sharp left-hand bend, and ploughed into the residence at No 62. Mrs Vanessa Farrugia and Mrs Sylvia Vella were standing near the front entrance of the house. Both were seriously injured by the impact. Mrs Farrugia was 20 weeks pregnant and her baby died in utero as a result of the accident.

Detailed facts

Summarised from the Remarks on Sentence, the objective facts of the offences were as follows. The applicant qualified as a motor mechanic in 1991. He had conducted his own motor repair business for eleven years up to 2013 and had closed that business in about June of that year. In mid-March 2014 he bought the vehicle in question, a 1969 GT Ford Falcon XW sedan, in a dilapidated condition. The applicant restored the vehicle over the next three months. Part of the work was the replacement of the steering system, including the column, and rebuilding the brakes.
The restoration was carried out at the applicant's home located about 2.3 km south of the accident site. The applicant completed the work on the afternoon of 21 June 2014 and decided then to take the vehicle for a test drive with a friend, Mr Tooma, in the front passenger seat. The vehicle was not registered or insured. The applicant had fitted the steering wheel onto the spline at the top of the steering column the night before but he had not screwed on the retaining nut. He fitted a rubber cover over the centre of the steering wheel. This served as the horn pad. The retaining nut was in the console between the driver's seat and front passenger's seat. Throughout his rebuilding of the vehicle the applicant had never screwed on the nut. At the time of setting off for the test drive he had forgotten that it was not in place.
Prior to commencing the test drive the functioning of the brakes had not been rigorously tested in the workshop. They had been applied only when the vehicle was being moved at very slow speeds on the applicant's property. In the course of that minimal usage of the brakes no deficiency of function had been noticed by the applicant.
The applicant drove north on Canoona Avenue for over 1 km to a roundabout. He proceeded through the roundabout and travelled approximately 300 m further north to pass through a second roundabout. About 360 m further on from the second roundabout is the sharp left hand bend at which the accident occurred. After exiting the second roundabout the applicant accelerated towards the bend. Although he was test driving the vehicle it was not found by his Honour that this involved driving at or towards the limits of performance or control.
The applicant applied the brakes as he approached the bend but they did not work. He pumped the brake pedal and pulled on the steering wheel to gain purchase so that more foot pressure could be applied to the pedal. This did not achieve effective application of the brakes and merely brought the steering wheel off the column in his hands. He lost all steering control and could not slow the vehicle. It left the roadway to the right (or north), at the start of the bend.
The house at No 62 was set back 35 m from the edge of the road at this location. From the roadway the ground surface sloped gently downwards over a grassed embankment then upwards over another embankment towards the house. The two opposing embankments formed a shallow ditch. The surface levelled out towards the house, onto an area of grass with a single line of recently planted young trees. Beyond this there was a circular gravel driveway in front of the house with a slightly raised garden bed in the centre, edged with bush rocks.
The appellant's vehicle was travelling at 60-80 km/h when it left the road. It proceeded down the embankment into the shallow ditch and up the other side. It became airborne as it left the top of the embankment on the side of the ditch nearest to the house. The car crashed into the garden bed in the centre of the circular driveway, dislodging rocks in its path on both edges of the bed. It became airborne again briefly as it came off the garden bed before smashing into the front veranda of the house and stopping when it became wedged in the front door. The vehicle came to rest with its bonnet protruding about 1.5 m into the house. Debris from the garden bed and from the front of the building was thrown inside.
Mrs Farrugia, aged 26 years at the time, was struck by flying debris and knocked back into the house and to the floor. She was admitted to hospital that afternoon with multiple head injuries including a deep cut to the forehead, multiple fractures of the skull and facial bones and broken teeth. Mrs Farrugia's lower left leg also sustained multiple fractures. Whilst these injuries were attended to the foetal heart was monitored. Mrs Farrugia was informed the next day that her baby had died and that labour would have to be induced a few days later. This was her first pregnancy and the loss of her baby was emotionally devastating. She had to cope with that through the many months of painful recovery from her physical injuries and continues to be deeply affected.
The complex fractures of Mrs Farrugia's shin bone required reduction by multiple surgical interventions to fix a rod and screws. She underwent extensive plastic surgery to repair facial injuries. Initial hospitalisation was for ten days but after discharge Mrs Farrugia had to return for further procedures. Treatment for deep vein thrombosis, which developed during recovery, required ongoing treatment for several months. Complex head surgery had to be performed some months after the initial discharge to repair a cerebral spinal fluid leak which had been caused by the head trauma. Mrs Farrugia suffered extremely severe pain in the aftermath of this last-mentioned procedure and was in Intensive Care for a week. Later again surgery was required to remove a lump which developed in her left thigh as a result of the injuries to that leg. She has suffered permanent loss of her sense of smell due to severance of a nerve when her nose was broken. She has ongoing migraine, fatigue and other disabilities.
Mrs Sylvia Vella was aged 47 years when the accident occurred. She sustained a severely dislocated knee, torn ligaments and tendons in her left leg and severance of her Achilles tendon as well as numerous lacerations to her legs. She was hospitalised for three months and in a wheelchair for a further three months after that, requiring 24-hour care. Extensive physiotherapy was necessary to restore function in Mrs Vella's legs. After confinement to the wheelchair she was required to use crutches for a further nine months. Mrs Vella's mobility has been permanently compromised, she has early-onset arthritis and has been unable to return to work.
The victims of the two Form 1 offences, Kate Vella aged 22 years and her sister Terese aged 14, both suffered relatively superficial grazes and abrasions and some bruising and swelling.

The sentence proceedings

The applicant pleaded guilty on 30 August 2016 to both charges under s 52A(3). Sentence proceedings commenced the next day and continued, initially, for three days. From the outset of this hearing the applicant conceded that the steering wheel had not been properly secured. He contested two further particulars of dangerous driving, as alleged by the Crown: 1. The Crown asserted, on the basis of calculations made from the location of ground markings at the scene, that the vehicle's speed as it travelled up the embankment towards the house had been approximately 85 km/h. This speed was also imputed to the vehicle when it had been on the roadway. The speed limit on the road was 50 km/h. The applicant asserted his road speed had been "in the order of 60 or 70 km/h". 2. The Crown alleged the applicant knew the brakes were defective and he denied that.
The Crown tendered a report of Senior Constable Parker of the Forensic Services Group. In this report a speed of 85 km/h was derived from the horizontal airborne distance of the vehicle (inferred from ground markings) and the grade of the embankment which sloped up towards the house, viewed as a launch ramp. Part way through the Senior Constable's evidence, during an adjournment, he recalculated the take-off angle of the embankment as 3.3°, compared to the figure of 6.58° which he had calculated in his report. When this revision was factored in the inferred speed increased from 85 km/h to 121 km/h.
The applicant had obtained an expert report from Mr Nigel McDonald. He inferred the vehicle's speed by a similar method but interpreting the ground markings shown in police photographs differently. In particular he differed from Senior Constable Parker as to the distance over which the vehicle had been airborne. This led Mr McDonald to infer a speed of 60 km/h. One factual issue affecting the difference between these experts concerned a garden tap which was affixed to a short post on the level grassed area at the top of the up-sloping embankment. Senior Constable Parker proceeded on the assumption that the tap had been damaged as the vehicle passed over the top of it. Mr McDonald thought the tap would have been struck by the vehicle passing beside it. The difference was important to the inferred distance over which the vehicle was airborne.
On 3 September 2016 the sentence proceedings were adjourned part heard to 30 January 2017 for a further five hearing days. That date was selected specifically to suit the availability of defence counsel (who did not appear in this Court on the application for leave to appeal) and Mr McDonald. At 10:00 am on 30 January 2017 defence counsel told the court that a supplementary report had been requested from Mr McDonald in October but had only been received late on the preceding evening. He also advised that Professor Cross, of the Physics Department at Sydney University, had been engaged "before Christmas" to provide an additional opinion but had not been able to attend the scene until the preceding evening. Counsel said, "That report has only come through at 9.40 this morning". His Honour was understandably concerned as to whether the Crown would be able to deal with these additional reports, as to the contents of which there had been no notice.
His Honour said: There is a small matter of course of not only the addendum report from Mr McDonald which the Crown may have been able to meet by the expedient of having a conference with Mr Parker going through the material but there is an issue of a whole separate report from a whole separate person whose expertise seems to arguably lie in a different area and who, if I remember the judgment correctly, whose credibility is something that the Crown may wish to explore at some length because Mr Cross did not emerge unscathed from the last time the Court of Criminal Appeal reviewed his evidence in a murder trial, if I recall correctly.
His Honour shortly afterwards clarified that he was referring to this Court's decision in Wood v R [2012] NSWCCA 21, a conviction appeal following a murder trial in which Professor Cross had given expert opinion evidence. After concluding that the fixture would have to be vacated and the sentence proceedings adjourned to later in the year his Honour said to the applicant's counsel: [Y]ou are at the mercy … of your instructing solicitors and it causes you no [sic] inconvenience and embarrassment to be caught on the hop in the same way that the Crown has been. If anyone has thought that I would consider it acceptable that the Crown should be served complicated reports on the run in this hearing then they were sadly mistaken, and if they thought that I was going to allow the Crown to be sandbagged then they were sadly mistaken.
The five hearing days from 30 January 2017 were vacated. Thereafter a report of Professor Cross dated 8 February 2017 was served by the applicant on the Crown on 22 February 2017. The proceedings resumed on 5 June 2017 and Senior Constable Parker was recalled. In further examination in chief he was asked to respond to Professor Cross' report. During this evidence the Crown prosecutor indicated he would object to any expressions of opinion by Professor Cross on the subject of biomechanics. His Honour said: Professor Cross, at one stage, held himself out to be an expert in biomechanics, but I doubt very much that he would continue to do so.
I infer from the cross-examination of Senior Constable Parker that Professor Cross' report was in part concerned with the extent to which the wheels of the vehicle would drop towards the ground when the vehicle became airborne and when the suspension was therefore decompressed. Senior Constable Parker was questioned about this phenomenon. Defence counsel played to him a DVD which, so far as can be discerned from the transcript, showed measurements being taken of the distance by which the wheels of a similar vehicle dropped when the chassis and body were raised. The Crown objected to the DVD and to questions being asked on it, because it had not been served. There had been no opportunity for the Crown to pursue enquiries with respect to the subject matter.
This led to a heated exchange between his Honour and defence counsel. The latter advised that the DVD had been made on 22 May 2017. He submitted that the DVD of itself did not constitute expert evidence and that his client had been under no obligation to serve it. His Honour emphatically rejected that submission and said he thought he had "made it pretty clear a long time ago that the material the parties were going to be relying upon should have been served". His Honour pointed out that the DVD was "a fundamental, factual piece of information relevant to Professor Cross' … opinion. … It is an aspect of his opinion, why was not it served?"
Counsel maintained his defensive stance with respect to non-service. He complained that the learned judge was "screaming at me". His Honour said: I am not screaming at you, I am raising my voice, … because you have had ample opportunity to prepare these proceedings properly, and to give people proper notice of the material you that you are going to be calling. This matter was adjourned at the beginning of the year, when I had five days set aside, because you got a report at midnight and served it on the Crown. I did not expect to be coming here today to find you behaving in the same way in relation to different material. I do not regard it as acceptable.
Further his Honour said, "The days of sandbagging the Crown, …, are long over" and proceeded to direct that a copy of the DVD be made and provided to the Crown for consideration by Senior Constable Parker before his cross-examination continued. His Honour concluded the subject, before adjourning for lunch, with these words: Now is there any other material lurking around in your brief, that you intend to use, in the next few days, concerning these matters of fact that have not been served, because if there is, serve it. That is my order.
At the end of the day's hearing on 5 June 2017 his Honour, noting that the report of Professor Cross served on the Crown was dated 8 February 2017, enquired of defence counsel what report he had referred to on 30 January 2017 as having "only come through at 9.40 this morning". His Honour continued: If there is another report in existence, …, and it is dated 29 or 30 January and it is the one that you were referring to when you spoke to me and which was part of the basis on which the adjournment was granted, I am directing you to serve that upon the [Crown].
On the morning of 6 June 2017 defence counsel initially said he suspected the report of Professor Cross to which he had referred on 30 January 2017 was a draft. Shortly afterwards he confirmed that this was so. His Honour required that any draft report be produced. Counsel responded that he was not aware of any power in the court to give such a direction and sought "a proper discourse about the extent to which that is a power available to the court". His Honour invited argument, saying that if Professor Cross had made "previous representations" about the matters in issue, they would be treated no differently "from any other witness' previous representations".
If the draft was not privileged the Crown would have been able to call for it during cross examination of Professor Cross. Defence counsel said it was likely the professor would be called but a final decision would not be made until the defence case commenced. His Honour said that he wanted "proper disclosure" and that if Professor Cross was called he would question him as to the existence of any draft. Further, his Honour said that if the professor confirmed the existence of a draft, "I will be ordering him to produce it".
There was a long exchange, of approximately half an hour, between the bench and defence counsel on this subject. It ended with his Honour deferring resolution until Professor Cross was called. His Honour did not require immediate compliance with his direction for production. He continued to take evidence from the Crown's witnesses. During the long exchange defence counsel complained that his Honour had not enquired whether there existed any draft of Senior Constable Parker's reports nor sought production of any such draft. Counsel repeatedly asserted that his Honour's focus on a draft of Professor Cross' report gave rise to an apprehension of bias. His Honour rejected this and explained that his concern regarding disclosure in relation to Professor Cross arose from the Court having been told on 30 January 2017 that there then existed a report, which self-evidently was separate from the one dated 8 February 2017 (served on the Crown on 22 February). There was no similar circumstance in relation to Senior Constable Parker.
After some further brief evidence up to late in the morning of 6 June 2017, the balance of that day was taken up with an application by the applicant's counsel that his Honour recuse himself. It was submitted, first, that an apprehension of bias arose from the earlier direction for production of Professor Cross' draft report. Counsel said that a reasonable bystander would conclude that by this direction the learned judge was "assisting the Crown by seeking to forearm it with material that potentially, and can only be, for the purposes of prejudicing Mr Mansweto's defence".
Secondly it was submitted that an apprehension of bias arose from his Honour having indicated that if Professor Cross should be called the judge himself would ask whether he had a draft report. Counsel submitted that this indicated an "intention to enter the fray to take the domain of the advocate". Thirdly counsel submitted that his Honour's expressions of frustration concerning production of the DVD, without prior disclosure, during cross-examination of Senior Constable Parker the preceding day might lead a reasonable bystander to apprehend bias. Fourthly, counsel referred to questions his Honour had asked of Senior Constable Parker during cross-examination. It was submitted they were "Dorothy Dixers" which had "given [the witness] an out".
His Honour declined to recuse himself for reasons given orally the same day. After further evidence had been taken the following morning, 7 June 2017, the Crown and defence agreed that the vehicle had been travelling at 60-80 km/h. It became unnecessary for the applicant to call either Mr McDonald or Professor Cross. The balance of the Crown case extended through 8 June 2017. The defence case, including oral evidence from the applicant and submissions, occupied the final day of hearing on 9 June 2017.

Ground 1: apprehended bias

The principles applicable to the question whether his Honour ought to have recused himself on account of an apprehension of bias are those stated in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 as follows (citations omitted, emphasis added): [6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, …, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. [7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability… [8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits… .
The principles were expressed in very similar terms in Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]-[12] in a judgment joined in by five of the justices. The following extract from [12] is presently relevant: The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'.
In Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 Deane J (at 74) listed several categories of circumstances which might give rise to an apprehension of bias. His Honour's second category, which the applicant relies upon on this application, is disqualification by conduct where actions or statements of a judge in the course of proceedings give rise to the apprehension.
As the Court of Criminal Appeal said in Tarrant v R [2018] NSWCCA 21 at [9]: [U]se of the term "might" lowers the burden of proof below that of probabilities. Thus the court need not be satisfied that the fair-minded lay observer "would" have such an apprehension; nor need any apprehension in the mind of the observer itself involve a state of satisfaction on the probabilities.
In Isbester v Knox City Council [2015] HCA 20 at [59] Gaegler J noted that the test for the appearance of disqualifying bias is an objective test of possibility, as distinct from probability, and continued: [I]ts application necessarily involves three analytical steps. Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.
In this Court the applicant relied upon three aspects of his Honour's conduct of the proceedings, in combination, which were said to give rise to the possibility that a fair-minded lay observer might reasonably apprehend that the learned sentencing judge might not bring an impartial mind to the resolution of the issues on sentence. The three matters were as follows: 1. The learned judge's comments with respect to failure of the applicant's representatives to serve in advance the DVD upon which Senior Constable Parker was cross-examined. 2. His Honour's remarks concerning Professor Cross' standing as an expert witness and the direction that the professor's draft report be disclosed. 3. His Honour's interventions in the cross-examination of Senior Constable Parker.

The learned judge's reaction to tender of the un-served DVD

As to (1), his Honour's strong reaction to the tender of the DVD during cross-examination of the Crown's expert showed no trace of favouritism to the Crown, nor hostility to the defence, nor pre-judgment of any factual issue, in particular that on which the Senior Constable was being questioned. His Honour's statement and conduct were neutral in all of these respects. His strongly expressed criticism of the failure to serve the DVD was directed in clear terms solely to what his Honour perceived as a professional and procedural failure of the applicant's representatives. His Honour's reaction to the emergence of the DVD did not touch the merits of the applicant's case, either overall or in the weighing of evidence on any particular issue.
The fair-minded lay observer must in our view be taken to know of the procedural history of the matter and to appreciate the high risk that the tender of the DVD without notice would necessitate an adjournment. That would be a serious detriment to both parties, especially after the loss of a previous five-day fixture through similar cause, only four months earlier.
An adjournment would also have caused significant disruption to the Court's business. Judges of the District Court work under enormous pressure in their criminal lists, as is apparent from the significant delays in finalisation of charges in that Court. The forced vacation of the five-day listing in January 2017 was brought about by egregious default of the applicant's solicitors. They had had five months to obtain a supplementary report from Mr McDonald and a fresh report from a second expert. They produced the supplementary report on the evening before the hearing and a draft of the fresh report on the morning of it. There could be no excuse for this. If the experts whom they had engaged could not make time to prepare reports, other experts should have been qualified. Counsel did not suggest to his Honour that this failure was the fault of the applicant himself and the learned judge clearly did not make that assumption.
It was against this background that his Honour came to deal with the un-served DVD on 5 June 2017. It should have been apparent to the applicant's barrister and his instructing solicitor that if the Crown was not able to meet this evidence upon it being tendered without notice while the Crown's expert was under cross-examination, an adjournment would likely be granted. This would be necessary to enable the Crown to make enquiries into such matters as the specifications of the vehicle depicted, comparison with the specifications of the car involved in the accident and the significance of the wheel drop shown on the DVD when factored in to calculations of the distance over which the applicant's car was likely to have been airborne.
It was idle for defence counsel to argue that he had been entitled to hold back the DVD because "it's not expert evidence". It was going to be a foundation for an aspect of his own expert's opinion and it was being put to the opposing witness in circumstances which would dictate that the Crown have an opportunity to assess the validity of the technical information thereby presented. It is understandable (and would be to a reasonably informed fair-minded bystander) that his Honour reacted strongly to the risk, so unnecessarily created, that the surprise tender of the DVD would derail the sentence proceedings yet again.
Under the responsibility of trying to complete listed cases in the time allocated, few judges would be able to conceal considerable irritation at such a development in a case with this history. To an adequately informed and fair-minded bystander it would be obvious that his Honour's disapproval was directed solely at the appellant's lawyers for repeated shortcomings in their performance of professional duties to the Court and to their client. The attempt to characterise that criticism as a possible manifestation of bias against the applicant fails.
In this Court the applicant has deprecated his Honour's use of the term "sandbagging". In context it was a reference to taking the Crown by surprise with un-served material that could not reasonably be responded to within the time constraints of the hearing. Complaint is also made about his Honour's enquiry (quoted at [27]) as to whether any more such material was "lurking" in counsel's brief. But these were again solely professional criticisms of the approach by counsel and his instructing solicitor to procedural fairness and efficiency. A bystander with an understanding of the situation could not reasonably apprehend from these remarks that his Honour might favour the Crown's case, or be hostile to the applicant's case, such that he might not assess the evidence and arguments solely on their merits.

His Honour's remarks concerning Professor Cross

His Honour's reference to Professor Cross as a witness whose evidence was scrutinised in Wood v R and who "did not emerge unscathed" (see [21] above) merely identified that he was aware the witness had been found wanting in independence and integrity on a previous occasion by the Court of Criminal Appeal and that he expected there might therefore be cross-examination as to his credit in the present case. To a fair-minded observer that could not reasonably have raised the possibility that the sentencing judge might not bring an impartial mind to the evaluation of the evidence that would be given by the professor in the proceedings before him.
In Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 Brennan, Deane And Gaudron JJ said (at 570-571): The requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation. That requirement will not be infringed merely because a judge carries with him or her the knowledge that some medical witnesses, who are regularly called to give evidence on behalf of particular classes of plaintiffs (e.g. members of a particular trade union), are likely to be less sceptical of a plaintiff's claims and less optimistic in their prognosis of the extent of future recovery than are other medical witnesses who are regularly called to give evidence on behalf of particular classes of defendants (e.g. those whose liability is covered by a particular insurer). If it were so infringed, the administration of justice in personal injuries cases would be all but impossible. In that regard, both necessity and common sense require that a distinction be drawn between the case where a judge has some preconceived views about the expertise or reliability of the professional opinions of an expert medical witness and the case where a judge has preconceived views about the credit or trustworthiness of a non-expert witness "whose evidence is of significance on ... a question of fact" which "constitutes a live and significant issue" in the case (see Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 at p 300). Nor will that requirement of the reality and appearance of impartial justice be infringed if a judge with preconceived views about the general reliability of the evidence of a particular medical witness discloses the existence of such views in the course of the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case. In the course of an eloquent passage in his judgment in Reg v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39 at p 294, Jacobs J. expressed the view that judicial "silence" is a "counsel of perfection". We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated. On the other hand, there is an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice.
In Vakauta v Kelly a trial judge had stated, in effect, that based upon his experience of evidence given in earlier cases by certain doctors who were to be called by the defendant, he expected them not to give evidence in accordance with honestly held professional opinions but to deny that the plaintiff exhibited symptoms and disabilities. Those expressions of scepticism about prospective evidence were found to give rise to an apprehension of bias. In the present case the learned sentencing judge's comments concerning Professor Cross were a far cry from what had been said in Vakauta v Kelly. The learned judge expressed no view as to what evidence he expected the professor to give nor whether he would be inclined to accept it. His Honour's reference to what had occurred in Wood v R was appropriate in order to ensure the applicant's counsel was aware Professor Cross had there been found by this Court to have acted on a prior occasion without the integrity required of an expert witness. It was proper for the judge to declare his knowledge of that history. There was no impropriety or indication of a possibility of bias in the learned judge stating his expectation that a challenge to the witness' independence would be made in the sentence proceedings before him.
In Wood v R this Court received as fresh evidence on appeal a book which Professor Cross had written and a lecture which he had published, after the trial in which his expert opinion had been relied upon by the Crown. His evidence had been tendered in the trial to establish that it was possible the accused in that case could have thrown the deceased of a cliff at The Gap and that it was not possible for her to have reached the position in which her body was found by jumping. McClellan CJ at CL (with whom Latham and Rothman JJ agreed) found that the book disclosed the professor's perception of his task "as being to marshal the evidence which may assist the prosecution to eliminate the possibility of suicide and leave only the possibility of murder" (at [717]).
At [731]-[758] the Chief Judge quoted extensively from the book and the lecture to show that Professor Cross "involved himself in the [investigation] to an extraordinary degree", that he "actively promoted his own participation in the matter after he was not called to give evidence in the original inquest" and that in conducting a critical experiment he had sought to derive maximum values rather than a range. The Chief Judge identified a passage in the book in which Professor Cross described steps he had taken to resist production of relevant documents to the accused's solicitor. He wrote that he had ultimately copied them into an electronic form which was difficult to read "in order to obtain leverage to enable him to claim a larger fee" for production. At [752] the Chief Judge quoted an admission in the book that the professor had sought to influence a police officer as to where he may have observed the location of the deceased's body at the base of the cliff. That position was a key integer in the calculations as to whether the deceased could have jumped or must have been thrown.
At [753] the Chief Judge accepted a submission that Professor Cross' claim to have worked with a Detective Inspector to convince the prosecutor to file an indictment for murder exceeded "the role of an expert in a criminal trial and demonstrates active involvement in the decision to prosecute and a high level of partiality against the [accused]". At [758] the following conclusion was reached: A/Prof Cross took upon himself the role of investigator and became an active participant in attempting to prove that the applicant had committed murder. Rather than remaining impartial to the outcome and offering his independent expertise to assist the Court he formed the view from speaking with some police and Mr Byrne and from his own assessment of the circumstances that the applicant was guilty and it was his task to assist in proving his guilt. In my opinion if the book and the speech had been available to the defence and the extent of A/Prof Cross' partiality made apparent, his evidence would have been assessed by the jury to be of little if any evidentiary value on any controversial issue.
In these sentence proceedings the Crown said on 30 January 2017 "there are probably going to be some credibility issues in relation to Professor Cross". The applicant now submits that his Honour's response, "I would have thought so", might be taken by the reasonable bystander to indicate that his Honour might not evaluate the professor's evidence impartially. We do not accept that. With a reasonable appreciation of the context, the whole of his Honour's remarks about the standing of the professor as an expert witness disclose no more than a proper and necessary alertness to previous adverse findings about the witness and vigilance with respect to the reliability of evidence Professor Cross might give, rather than a pre-formed determination to discount it.
His Honour's expression of doubt that Professor Cross would hold himself out as an expert in biomechanics (see [23]) is also said to be a manifestation to the reasonable bystander of possible bias. To the contrary it was an appropriate response to the Crown's objection to the witness giving opinion evidence in that field. The learned judge was no doubt referring to the following statement by the Chief Judge at Common Law in Wood v R at [468]: A/Prof Cross' qualifications are in physics and his primary area of expertise is in plasma physics. He has spent some time since his retirement assisting the police in the investigation of incidents of persons falling and has published alone, or with others, some papers concerned with the physics of sport. In the course of these tasks he has applied his knowledge of basic physics. He has no qualifications or experience in biomechanics.

The direction that the professor's draft report be disclosed

The discussions between the bench and counsel concerning production of Professor Cross' draft report are summarised at [28]-[31] above. Given that a five-day fixture had to be vacated on 30 January 2017 largely because the Court was told the professor's report had only come to hand at 9:40 am that day, it was very conspicuous that the report ultimately relied upon was dated 8 February 2017 and had been served on 22 February 2017. In the context of the further recent disruption caused by the DVD not having been served, the learned judge's initial insistence on production of the 30 January 2017 draft is readily explicable as a measure to pre-empt another adjournment. An adjournment might be forced if the Crown should call for the draft and demonstrate an entitlement to examine it during cross-examination of the professor.
It would have been open to counsel to ascertain the circumstances in which the draft had been produced by Professor Cross to his instructing solicitor and to determine whether client legal privilege might be claimed. Draft expert reports supplied to solicitors for the purpose of clarifying factual assumptions and ensuring that relevant questions have been addressed are in many situations privileged: Australian Securities and Investments Commission v Southcorp Ltd (2003) 46 ACSR 438; New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258.
Instead of investigating whether it really served the applicant's forensic purposes to withhold the draft and, if so, citing law which would protect confidentiality, the applicant's counsel chose to characterise the judge's requirement as differentiation in treatment of the respective parties' experts and as a possible manifestation of bias. This ignored the fact that belated production of material by the applicant had by this stage caused or threatened major disruption of the proceedings, whereas there had been no such conduct on the part of the Crown. It ignored a more obvious explanation for his Honour's position regarding the draft, namely, that he had justifiably lost confidence in the judgment and diligence of the applicant's representatives with respect to production of material and that he was attempting to pre-empt a further default. In his reasons for declining to recuse himself (at 8) the learned judge expressly referred to the risk of delay in "the smooth running of the hearing" if there should be "service of draft reports on the run".
The judge's requirement that the draft be produced was neutral with respect to the substance of the professor's evidence and with respect to the outcome of the factual issues. Whether or not the applicant was bound as a matter of law to produce the document, it is clear the judge's order was driven by procedural considerations. A fair-minded bystander would not leap to the inference of possible bias. The fact that defence counsel at first instance made that leap is not a sound guide. Counsel appeared to lack insight into his own and his solicitor's responsibility for the disruption already caused.
In giving reasons for refusing to recuse himself his Honour also said he considered disclosure of experts' draft reports necessary as a matter of course in order to demonstrate independence of their opinions. His adoption of that view could not rationally be taken as an indication that he might pre-judge the acceptance or otherwise of a particular expert's evidence. With respect, his Honour's view fails to recognise the possibility that draft expert reports may be privileged. But that qualification does not transform his position into a manifestation of bias.
It is a reasonable inference that his Honour particularly wished to have Professor Cross' independence open to examination by consideration of his draft report. We reject the submission that his Honour "actively search[ed] for material to impugn the credit of [this] defence expert". Against the background of this Court's very strong findings of partisanship in Wood v R the learned judge's wish to verify that the witness had formed his opinions with detachment, so far as disclosure of his draft could provide such verification, does not indicate that his Honour might have pre-judged either the professor's independence or the substance of his evidence, in the case before him.
We do not consider that this aspect of the proceedings gave rise to an apprehension of bias according to the applicable principles.

Interventions in the cross-examination of Senior Constable Parker

In written submissions the applicant's counsel identified passages in the cross-examination of Senior Constable Parker where the learned judge asked questions. It was submitted that by doing so his Honour "effectively foreclosed attempts by defence counsel to pursue legitimate lines of examination". Having read the passages identified and surrounding questions and answers we reject this proposition. His Honour asked very few questions during the cross-examination of this witness, which extended over 81 pages of transcript on two separate days. Such questions as were asked by his Honour were not in leading form and appear to have been for the purpose of seeking clarification and understanding.
Having considered the "lines of examination" constituted by defence counsel's questions before and after those of his Honour, it is not apparent to us how any such "lines" were "foreclosed". From the learned judge's extremely limited contributions to the questioning we do not consider that a fair-minded bystander could infer a possibility of bias.
Taking all of the suggested indicia of possible bias in combination we do not consider that they might cause a reasonable and fair-minded bystander, properly informed, to apprehend that the learned judge might be biased against the applicant. Ground 1 is rejected.

Ground 2: penalty for the matters on the s 166 certificate

In view of the conclusion we have come to on ground 3 it is not necessary to consider ground 2. As explained below, it was not appropriate for his Honour to take into account the failure to register the vehicle and failure to insure it as bearing upon the objective seriousness of the offences against s 52A(3). Although his Honour said he did take those matters into account, it is difficult to see how, logically, they could have been factored into the gravity of the principle charges.
With respect to the two charges dealt with on the certificate under s 166 of the Criminal Procedure Act 1986 (NSW), of failure to register and failure to insure the vehicle, the applicant has had the benefit of his Honour recording convictions only. His Honour's express justification for this lenient treatment will be removed upon this Court resentencing the applicant for the s 52A(3) defences without purporting to treat them as aggravated by the vehicle being unregistered and uninsured. However we do not consider it warranted to reconsider his Honour's orders with respect to the s 166 charges in view of the term of full-time custody which he must serve on counts 1 and 2.

Ground 3: that the sentence is manifestly excessive

His Honour assessed the applicant's moral culpability as high. The applicant submits this finding was not open and that it has contributed to the imposition of a manifestly excessive aggregate sentence. The question under ground 3 is whether the sentence was unreasonable or plainly unjust: see House v The King (1936) 55 CLR 499; Hughes v R [2018] NSWCCA 2 at [86]. This can only be answered by considering all the circumstances of the offending and of the offender. Whether the offending involved "high moral culpability" is relevant to taking guidance as to the appropriate sentence as outlined in R v Whyte (2002) 55 NSWLR 252; [2005] NSWCCA 343.

Objective circumstances found by his Honour

The applicant was not affected by and had not consumed alcohol or drugs at the time of the accident. The dangerous manner of driving in this case had two components. The first was the failure to secure the steering wheel on its column and the second was the speed of between 60 and 80 km/h in a 50 km/h zone. His Honour found that the applicant was ignorant of the air in the brake lines which caused them to fail. There was no finding that the applicant had been in any degree negligent in his work on the brakes or in failing to identify the defect in them before commencing to drive. The learned judge apparently accepted the applicant's statements in his police interview to the following effect: He bled the brakes two weeks before the crash and tested them before this drive. On that occasion he had moved the car on his driveway so it could be loaded onto a trailer and was driving at about three kilometres an hour. There was nothing wrong with the brakes in the early stages of the drive after he left his house and drove approximately 2.3 km and went through several intersections before getting to Canoona Avenue.
As to the failure to secure the steering wheel, this was obviously a grave oversight with respect to a component which was critically important for safe management of the vehicle. His Honour found that in this regard the applicant: acted in a fundamentally selfish and irresponsible way because he could not contain his excitement at the prospect of driving his car.
The vehicle's speed was not found to have been, of itself, a contributory cause of the loss of control. The speed was between 10 and 30 km/h above the limit for the roadway. No doubt when the vehicle left the road that speed contributed to the momentum with which it passed through the ditch and over other obstacles to collide with the front of the house. But the cause of the car leaving the road was failure of the brakes and loss of steerage due to the steering wheel coming off the column.
His Honour noted that a test drive of any vehicle inherently involved the potential for failure. By test driving this vehicle for the first time on a public street the applicant necessarily subjected the public to some underlying risk. His Honour also stated that he took into account that the vehicle was unregistered and uninsured.
In assessing the objective seriousness of the offences his Honour of course took into account the grave and traumatising injuries to each of Mrs Farrugia and Mrs Vella.

Subjective circumstances considered by his Honour

The applicant was aged 41 years at the date of the offences. His working background has been referred to above at [6]. The evidence showed that the applicant has a brain tumour which has been treated with substantial success but has nevertheless caused at least one seizure and has compromised the applicant's visual memory. It was this medical history which caused the applicant to close his business as a motor mechanic 11 months prior to the incident which led to these charges. On the evidence before his Honour the applicant's future capacity for work is somewhat uncertain.
On the basis of strong character evidence the learned judge found that the applicant is "a fine and decent man" and that he is "unquestionably of good character". It was also found that he was "profoundly remorseful". The evidence showed that he had his own family and was deeply affected by his knowledge of the nature of the injuries his driving had caused. Consistently with authority his Honour recognised that "good character and genuine remorse are regular features of the subjective case of persons likely to commit this offence" and that only limited leniency could be accorded upon those considerations: R v Price [2004] NSWCCA 186 at [31] and [45].
The applicant had prior convictions for driving above the speed limit. His Honour considered that some measure of specific deterrence was therefore warranted because exceeding the speed limit was an aspect of the subject offences.

The relative seriousness of the offences

The first aspect of the applicant's carelessness, failure to secure the steering wheel, was a matter of omission and forgetfulness. It occurred before driving commenced. On the scale of lack of care which may be involved in offences against s 52A(3)(c), the applicant's oversight was far lower in moral culpability than, for example, ongoing reckless handling of a vehicle on the road (as in driving at excessive speed, overtaking unsafely or changing lanes aggressively). It was lower in moral culpability than continuing to drive when overtired and/or affected by drugs or alcohol. In any of those examples the risk arises from continuing reckless conduct of the offender. A careless mechanical error which occurred before the commencement of driving and sowed the seed of risk but had been forgotten is, in our view, markedly less culpable.
The excess of speed over the limit for the roadway cannot be excused. However, in relative terms it was by no means an extreme or gross departure from the requirements of safe vehicle handling. Absent the brake and steering failures there is no finding (and no evidentiary basis for finding) that the vehicle's speed created a risk of inability to negotiate the left hand bend.
The consideration that this was a test drive with the inherent potential risk of failure does not of itself materially increase the applicant's moral culpability. Fault on his part is concentrated upon his serious oversight with respect to securing the steering wheel. We do not consider that the applicant's failures to have the vehicle registered or insured are factors bearing upon the objective seriousness of the offences. These are regulatory infringements which were not causative of the accident or the injury to the victims.
On the other hand, there must be taken into account in assessing the gravity of the offence the fact that other road users and the applicant's front seat passenger were put at risk. The number of people exposed to danger from the applicant's conduct is a relevant consideration: R v Price at [36].
Most importantly, the grave injuries inflicted upon Mrs Farrugia and Mrs Vella have a bearing upon the objective seriousness of the matter. Whatever sentence the applicant serves may appear inadequate to these victims having regard to the serious damage gratuitously inflicted upon them, particularly through the death of Mrs Farrugia's baby in utero and the long convalescence and rehabilitation of both women. Whilst not intending to understate their loss and suffering by comparison with other victims of dangerous driving, it must be said that a sentence according to law is required to be fixed within a range up to the maximum of 7 years fixed by Parliament. In determining an appropriate penalty within that range consideration must be given to (a) the still more terrible injuries inflicted upon other victims of offences against this section (including tetraplegia and permanent severe brain damage, in some cases) and (b) the far more reckless and morally culpable driving which has been involved in other instances of offending against the section. R v AB [2011] NSWCCA 229 (to be read with R v AB (No 2) [2011] NSWCCA 256) is an example of greater seriousness of such an offence, in both respects.
Upon these considerations we are of the view that the aggregate sentence passed by his Honour was manifestly excessive. Where the applicant pleaded guilty, was genuinely remorseful and was unlikely to reoffend, the fundamental integers in determining his sentence were the gravity of his failure to take care in the use of his vehicle and the seriousness of the injuries inflicted. The former involved a relatively low degree of moral culpability whereas the injuries inflicted were relatively severe but by no means a worst case. These are "offsetting considerations", as in R v Whyte (at [205]). The indicative sentences nominated by his Honour and the aggregate he imposed would be appropriate to a case involving significantly more culpable mishandling of a motor vehicle. Ground 3 is upheld.

Orders

In resentencing the applicant, the Court has had regard to an affidavit read on the appeal which attests to the constructive use he has made of his time in custody. Taking into account the Form 1 offences in determining the sentence for count 1 (being the count relating to injury of Mrs Farrugia), we consider the indicative sentence for this count should be 1 year and 10 months. This reflects a discount of 10% from a starting point of 2 years. For count 2 the indicative sentence should be 1 year and 5 months at the same discount. We consider the 10% which his Honour allowed is appropriate for the limited utilitarian value of the applicant's plea of guilty. The aggregate head sentence for both offences should be 2 years and 4 months, incorporating a notional accumulation of 6 months.
His Honour found special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and fixed a non-parole period at 60% of the aggregate head sentence. We see no reason to make any different finding and will apply a ratio as near to 60% as the calculation of whole months will permit. The non-parole period of the aggregate sentence substituted by this Court will be 1 year and 4 months.
Pursuant to s 205, subs (2)(d)(i) and (4)(b)(i) of the Road Transport Act, upon conviction for the s 52A(3)(c) offences the applicant was automatically disqualified from holding a driver licence for 3 years. This could be reduced to a period as short as 12 months by order of the Court but there would be no justification for doing so in this case. Any period of disqualification dating from conviction would be extended by the length of the applicant's non-parole period, by force of s 206B.
At the conclusion of his remarks on sentence the learned judge informed the applicant: You are disqualified from holding or obtaining a driver's licence for a period of three years, which by operation of law will commence upon your release to parole.
This does not appear to have been entered as an order. It is common ground that the applicant's licence was suspended from the day the offences were committed (21 June 2014). That suspension had continued for 3 years by the date on which sentence was passed. The 3 year automatic disqualification was wholly satisfied by the period of suspension: see s 206B. His Honour was therefore in error to state that the applicant would be disqualified for 3 years from his release to parole. Although no disqualification order seems to have been entered, for clarity this Court should make an order pursuant to s 206B(5) that the period of automatic disqualification ended on 20 June 2017, being the end date of the 3 years' suspension.
The orders of the Court will be: 1. Leave to appeal granted. 2. The appeal is upheld. 3. The aggregate sentence imposed in the District Court on 20 June 2017 for counts 1 and 2 is quashed. 4. In lieu thereof the applicant is sentenced to an aggregate term of imprisonment comprising a non-parole period of 1 year and 4 months commencing on 20 June 2017 and expiring on 19 October 2018 and a balance of term of 1 year commencing 20 October 2018 and expiring on 19 October 2019. 5. The automatic 3 years' disqualification of the applicant from holding a driver licence pursuant to s 205 of the Road Transport Act is to be treated as having ended on 20 June 2017, having been fully satisfied by the suspension of the applicant's licence which was in effect from 21 June 2014 to that date.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 October 2018

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