[2016] NSWCCA 37
Bussey v R [2020] NSWCCA 280
CTM v The Queen (2008) 236 CLR 440
Source
Original judgment source is linked above.
Catchwords
[1990] HCA 33
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bell v Tasmania (2021) 274 CLR 414[2021] HCA 42
Bruce v Cole (1998) 45 NSWLR 163[1998] NSWCA 45
Bulga Underground Operations Pty Ltd v Nash (2016) 2016 NSWLR 338[2016] NSWCCA 37
Bussey v R [2020] NSWCCA 280
CTM v The Queen (2008) 236 CLR 440[2008] HCA 25
D'Amore v Independent Commission Against Corruption (2013) 303 ALR 242[2013] NSWCA 187
Director of Public Prosecutions (NSW) v Yeo (2008) 188 A Crim R 82[2008] NSWSC 953
DL v The Queen (2018) 266 CLR 1[2018] HCA 26
Douglass v The Queen (2012) 86 ALJR 1086[2012] HCA 34
Ganiji v R [2019] NSWCCA 208
Gilham v R (2012) 224 A Crim R 22[2012] NSWCCA 131
Gillett v R (2006) 166 A Crim R 419[2006] NSWCCA 370
Gilmour v Environment Protection Authority (2002) 55 NSWLR 593[2002] NSWCCA 399
Harris v Natural Resources Access RegulatorTimmins v Natural Resources Access Regulator [2023] NSWCCA 16
Hopgood v R [2019] NSWCCA 246
Jiminez v The Queen (1992) 173 CLR 572[1992] HCA 14
King v The Queen (1986) 161 CLR 423
In order to understand the issues that arise in the appeal, it is necessary to provide an outline of the essential facts in connection with the collision and an explanation of the manner in which the offences were prosecuted in the Court below. The facts that follow were either agreed, not in issue or the subject of findings by Payne DCJ.
At around 4:40am on 19 December 2019, the appellant, then a 19 year old first year apprentice electrician, left his home to drive to his place of work.
The appellant held a P2 provisional drivers licence - which had been granted three months prior.
In the vicinity of the collision, Kurrajong Road runs in a roughly east/west direction, and the roadway is generally straight in alignment and level. The road pavement was sealed bitumen, and on each side of the road there was a sealed bitumen shoulder. The road itself was two lanes - one in each direction - separated by a single broken white painted line. The roadway and shoulder were in good condition. The speed limit was 80 km/h.
There was no street lighting in or around the location of the collision, and at the time of the collision the area was described as "dark". There was no suggestion that the weather conditions were a factor in the events that occurred: although dark and overcast, the weather was described as "fine and dry", and visibility was "good being a couple of hundred metres".
As earlier noted, the appellant's vehicle, whilst travelling in an easterly direction along Kurrajong Road, Richmond, crossed to the incorrect side of the road and onto the shoulder of the westbound lane - initially making contact with the steel Armco rail on the side of the roadway and, thereafter, colliding "head on" with the first rider and then the second rider. The riders were riding "single-file" in a westerly direction on the shoulder of Kurrajong Road, and heading towards North Richmond. Each rider had bright lights attached to their bicycle.
The accident scene underwent police forensic examination, and the road surface revealed no skid marks that would indicate that the appellant's car underwent any form of emergency braking. An examination of the vehicle driven by the appellant revealed no mechanical defect or component failure which might have contributed to the accident occurring. The appellant underwent a roadside breath test for alcohol, which produced a negative result and subsequent blood testing also excluded the presence of any alcohol or drugs.
Both before, and after, the collision there were other vehicles travelling in the same direction as the appellant.
Rebecca Patterson was driving a car in front of the appellant's car. (Her evidence - which involved the Crown reading onto the record her interview with police on 29 December 2019 - did not identify the distance between her car and the appellant's car in the moments before the collision). She noticed that the car behind her - the appellant's car - "sort of went over and back again. I didn't think it had been that bad. I heard the thud ... and I thought he'd hit the guardrail and he went back". After observing these matters, she looked in her side mirror and following "a bang" noticed that the "lights came back behind me. And there was only one headlight working, and then it put on its hazard lights and moved from - off to the side of the road".
Karl Reilly was driving a truck, with two passengers - Matthew Andrews and Cameron Cox - approximately 50-100 m behind the appellant's car.
Matthew Andrews was not called to give evidence, but his statement, dated 24 July 2021, was read onto the record. In that statement, Mr Andrews said that his attention was drawn to the appellant's car by Karl Reilly and that when he looked up he "saw that the centreline of the road was down the middle of the car and the car was drifting towards the right. It was a really slow drift", following which the car hit the guardrail.
Karl Reilly was interviewed by police on 29 December 2019, and he was called to give evidence by the Crown. When asked by the Crown to indicate "how many times the car veered", Mr Reilly's response was: "Just continuously veered. Didn't like deviate or swerve, it just continuously veered". Mr Reilly contacted emergency services following the collision. When asked to advise the operator what had occurred, he said:
Um, I seen, we were following a car and he must have fallen asleep. He's crossed over the other side of the road and he's hit two bike riders and I don't think they're very good.
…
It's like he fell asleep and veered onto the other side of the road. They were riding down and he's hit 'em head on.
Mr Andrews went to stop the oncoming traffic. He observed the appellant had driven his car back to the correct side of the road, stopped and activated the hazard lights. The appellant's car came to a stop approximately 170 m from the first impact with the Armco rail. Mr Andrews went up to, and spoke with, the appellant: he asked the appellant whether he was "OK" - to which the appellant said: "I fell asleep. Did I hit any other cars?".
Cameron Cox was called to give evidence by the Crown, but he was not interviewed by police until "[a]bout two weeks" prior him giving evidence. His evidence was that he observed that the appellant's vehicle "drifted onto the other side of the road about halfway and then he swerved back once or twice". When asked to clarify the "once or twice", Mr Cox said: "I'll go with - I'll go with twice" and on a subsequent occasion, when asked how many times the car "went over the road", Mr Cox said: "I would say twice. I'm definitely clear that he done it - yeah. Twice". On a subsequent occasion, he observed the car:
… suddenly drifted off to the wrong side of the road, and he'd come back and then he drift off again, but he just continued - like yeah, so the time he just continued to go in the other direction on to the other side of the road … and he hit these two bike riders.
When approached by police, the appellant advised an attending police officer, Constable Mannix, that he "was on my way to work, next thing I know I hit the guardrail. I pulled over and stopped the car. I must have fallen asleep". Following his arrest, Constable Mannix again asked the appellant what had happened, and he replied: "Not sure, fell asleep, I think. I woke up on the other side of the road, I pulled back to the other side of the road".
The appellant was taken to Windsor Police Station and interviewed, but he declined to answer any questions after receiving legal advice. In that interview, the appellant indicated "that he had given his account during his interview with Constable Elizabeth Mannix earlier that morning (at the scene by way of body worn video)".
On 5 February 2021, the appellant attended Fairfield Police Station and provided police with a typed twelve paragraph statement bearing that date. That statement was tendered and admitted without objection by the Crown.
Relevantly, that statement included the following account:
4. Shortly after the collision I spoke to a Police Officer and I said that I had fallen asleep. I do not remember the Police officer asking me any questions about my fitness to drive when either commencing my journey or before the impact.
5. I worked on the 18 December 2019 and later drove home. I arrived home at about 6pm. I had dinner that evening. I went to bed about 10:30pm.
6. I felt that I had a good sleep that night.
7. I got out of bed about 4am the following morning on the 19 December 2019. I had a shower. I had breakfast. I was refreshed and alert before leaving home.
8. I left my home about 4:40am on the 19 December 2019. I commenced driving to work which was located at Richmond that day.
9. When I commenced driving to work, I was refreshed and alert and I was in a fit state to drive safely to work.
10. During December 2019 this was my normal morning routine. I usually drove to work in the early hours of the morning around the same time. In all of my previous morning drives to work I never had any problems driving.
11. On this date I was in the same mental and physical condition as my previous driving journeys to work in the mornings. There was nothing different to this journey as compared to any other early morning journeys when I was driving my car to work.
12. I agree that at the roadside that I said to Constable Mannix that "I was on my way to work, next thing I know I hit the guardrail. I pulled over and stopped the car. I must have fallen asleep". I told Constable Mannix the truth.
It should be noted that Payne DCJ, in the dangerous driving judgment, accepted that the effect of this evidence was to establish that the appellant "had no reason to believe he might fall asleep at the point before losing control of the vehicle. The [appellant] contends that he honestly believed it was safe to drive".
The Crown also relied upon evidence from Professor Ronald Grunstein, a Professor of Sleep Medicine - across a range of issues, including the propensity of a person to fall asleep without warning; whether, based upon what was assumed to be the amount of sleep that the appellant had in the days prior to 19 December 2019, that amount of sleep was sufficient and whether the appellant "may have felt tired"; whether, based upon the evidence given by Mr Cox, the appellant had experienced a series of microsleeps "with probable brief awareness in-between events allowing the correction of steering on two occasions but not the third". It will be necessary to return to some of the detail of Professor Grunstein's evidence later when dealing with the grounds of appeal.
[2]
The offences: the statutory provisions and background principles
[3]
The statutory provisions
The appellant was charged with the offences of dangerous driving occasioning death (an offence under s 52A(1)(c) of the Crimes Act), and negligent driving occasioning death (an offence under s 117(1)(a) the Road Transport Act).
Section 52A provides:
(1) Dangerous driving occasioning death A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle -
(a) under the influence of intoxicating liquor or of a drug, or
(b) at a speed dangerous to another person or persons, or
(c) in a manner dangerous to another person or persons.
Section 117 of the Road Transport Act relevantly provides:
117 Negligent, furious or reckless driving
(1) A person must not drive a motor vehicle on a road negligently.
Maximum penalty -
(a) if the driving occasions death - 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence),
…
(2) …
…
(3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following -
(a) the nature, condition and use of the road on which the offence is alleged to have been committed,
(b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road,
(c) any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes).
(4) …
[4]
Background principles: dangerous and negligent driving occasioning death
There is a well-recognised structure of offences where death is occasioned through driving. Manslaughter stands at the pinnacle of that hierarchy and is the most serious offence: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [58]. There is, then, the less serious offence of dangerous driving occasioning death, under s 52A of the Crimes Act. The offence of negligent driving causing death, under s 117(1) of the Road Transport Act, sits beneath each of these offences: Borkowski at [58]; Director of Public Prosecutions (NSW) v Yeo (2008) 188 A Crim R 82; [2008] NSWSC 953 at [27] ('Yeo').
In relation to the offence of dangerous driving occasioning death, two features of the offence warrant emphasis. The first is the requirement there be precise identification of the manner of driving alleged to be dangerous: the offence "requires some serious breach of the proper conduct of a vehicle" McBride v The Queen (1966) 115 CLR 44, 50; [1966] HCA 22 - a matter that is objectively assessed. The offence focuses upon whether the manner of driving, as an objective fact, made the driving dangerous to another person or persons: the offence is committed where the quality in the "manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous": McBride at 49; Gillett v R (2006) 166 A Crim R 419; [2006] NSWCCA 370 at [27]. That involves demonstrating that the driving subjected another person or persons to a level of risk greater than "that ordinarily associated with the driving of a motor vehicle": Jiminez v The Queen (1992) 173 CLR 572, 579; [1992] HCA 14 ('Jiminez'); King v The Queen (2012) 245 CLR 588; [2012] HCA 24 at [34] ('King'). The offence, however, does not involve demonstration of a "species of criminal negligence": negligence "may and, in many if not most cases will, underlie dangerous driving", but it is not a necessary element of dangerous driving: King at [34], [38].
The second feature warranting emphasis is the need for contemporaneity between the dangerous driving and the death: the impact must occur whilst the vehicle is being driven dangerously: McBride at 47 and 51. Nevertheless, being a question of fact, this requirement can be demonstrated even if the vehicle was not being driven dangerously at the precise moment of impact: that is because "a preceding period of driving in a dangerous manner may be so nearly contemporaneous with the impact as to satisfy this element of the offence": Jiminez at 578.
[5]
Honest and reasonable mistake of fact
Notwithstanding the limited form of statutory defence in s 52A(8), and the absence of any equivalent to the offence under s 117(1) of the Road Transport Act, a person who falls asleep at the wheel of a car is not necessarily guilty of dangerous driving, or negligent driving. That is because each offence is one involving strict, and not absolute, liability: thus, it is an "excuse" to each of the offences to which the appellant was charged to for there to exist an honest and reasonable mistake as to the facts which, if true, would make the act of the driver "innocent": Proudman v Dayman (1941) 67 CLR 536, 540; [1941] HCA 28; Jiminez at 581 and 583; CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 at [8] ('CTM').
In Proudman v Dayman, the principle was stated by Dixon J in these terms (at 540):
… As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence.
In relation to honest and reasonable mistake, a number of matters should be noted. First, although the matter is often referred to, or described as, a "defence", it is a principle of criminal responsibility that informs the interpretation of the criminal law - a principle that can be negated by contrary legislative expression: CTM at [5] and [200]. Secondly, it is a ground of exculpation: it is a requirement that the "honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word 'innocent' means not guilty of a criminal offence": CTM at [8]; Bell v Tasmania (2021) 274 CLR 414; [2021] HCA 42 at [10]-[11], [28]-[30], [46] and [105]. Thirdly, even where the ground of exculpation is not, as a matter of construction, displaced for a particular offence, the requirement to consider it only arises "if the issue is alive" or "sufficiently raised" at the trial: CTM at [179]. An evidentiary onus of raising the ground is upon the accused but, "once that occurs, the ultimate legal onus of displacing the ground lies on the prosecution": CTM at [8] - that is, once evidence has been adduced to that effect, the onus lies on the prosecution to prove, beyond reasonable doubt, either that the accused did not honestly hold the belief, or that any such belief was not reasonable: Jiminez at 584; Rummukainen v The Queen (2021) 97 MVR 134; [2021] NSWCCA 188 at [30]-[31].
[6]
The trials and judgments
For each offence, before setting out the key parts of each judgment, I will set out the case advanced by the Crown - in opening, and in closing, submissions.
[7]
The Crown case
In relation to the offence of dangerous driving occasioning death, the trial was conducted on the basis that there were five elements to this offence, each of which the Crown was required to prove beyond reasonable doubt - being: first, that the appellant was the driver of a vehicle; secondly, that the vehicle was involved in an impact; thirdly, the impact occasioned the death of the cyclists; fourthly, at the time of the impact the appellant was driving the vehicle in a manner dangerous to another person; and, fifthly, at the time of the driving the appellant did not have an honest and reasonable belief that it was safe to drive.
The appellant accepted that the first three elements were not in dispute, but contested the fourth and fifth elements.
The Crown opening was relatively brief - no doubt because the contest at trial was confined to two elements of the offence: those identified as the fourth and fifth elements, above.
In relation to the element requiring demonstration of dangerous driving, the Crown pointed out that although there were "different versions as to how many times [the appellant's] car drifted across the wrong side of the road", the Crown case was anchored in the evidence of one of those versions - that it anticipated to be given by Cameron Cox: it was said that on Mr Cox's version, the appellant "was observed - or the car was observed to correct two of the three times that it drifted into the wrong side of the road". Based upon this evidence, the Crown indicated that even if the appellant had fallen asleep, the appellant "would have been well aware that he was about to fall asleep" - this was the manner of driving that was alleged to constitute the dangerous driving. The relevant period of driving during which the Crown alleged that the driving was dangerous was the "period of drifting before the collision itself".
In relation to honest and reasonable mistake of fact, the Crown case was that the appellant's statements variously given in the aftermath to the collision, to the effect that he had "fallen asleep" were implausible and that the evidence was unlikely to demonstrate the "defence", on the balance of probabilities, such that it would not be available. (Given the issues on appeal, it is unnecessary to dwell upon whether this submission misapprehends the onus of proof - as explained in [48], above). Undoubtedly what underpinned that submission was the evidence of Mr Cox: if that evidence were accepted, then findings and conclusions in the terms advanced by the Crown may well have eventuated. However, as I will shortly outline, that evidence was not accepted by Payne DCJ.
[8]
The dangerous driving judgment
On 11 August 2021, Payne DCJ orally delivered her reasons for judgment. The key parts of the judgment are as follows.
Payne DCJ noted the only elements of the offence that were in issue were the fourth and fifth elements - namely, whether at the time of the impact the appellant was driving in a manner dangerous to another person and whether the Crown had proved, beyond reasonable doubt, "that at the time of the driving the [appellant] did not have an honest and reasonable belief that it was safe to do so".
In relation to honest and reasonable mistake of fact, Payne DCJ noted that the Crown's case was "that at the time of the driving the [appellant] did not have an honest and reasonable belief that it was safe to drive". That was because, according to the Crown, the appellant "knew it was not safe to drive or [ought] to have known it was not safe to drive".
When dealing with the fourth element - whether the appellant was driving the vehicle in a manner dangerous to another person or persons - Payne DCJ recorded the Crown's case in these terms:
… I am entitled in determining the manner in which the vehicle was driven at the time of impact to consider the manner in which it was being driven at a point before the impact. Here the Crown relies upon the evidence of what took place in the four minutes and 54 seconds from when the [appellant] left his home to the point of his traversing the middle line and proceeding to twist and veer to the right-hand side of the dual carriageway and collided head on with two cyclists …
Two matters should here be noted. The first is that the reference to "four minutes and 54 seconds" from when the appellant left home is accepted by the appellant and Crown to be a slip: that period of time was, in fact, a reference to the period that had elapsed following the appellant's mobile telephone being recorded, which it was at 4:46am, as searching using a map application for an address in Richmond (which was where the appellant was required to work that day) and the time of the collision. Nothing turns on this misdescription by the trial judge. The second matter to note is that Payne DCJ's summary of the Crown's case confirmed it to be confined to what her Honour described as the period of "four minutes and 54 seconds" to the point where the appellant proceeded "to twist and veer to the right-hand side of the dual carriageway". That case, as I have already noted, was reliant upon the evidence from Mr Cox.
[9]
The negligent driving hearing
The hearing of the negligent driving offence proceeded on the basis of the evidence given in the dangerous driving trial, supplemented by written submissions by the Crown and the appellant, as well as brief oral submissions from the parties.
[10]
The Crown case
The Crown's opening submissions commenced by noting a number of matters that flowed from the dangerous driving judgment - namely: (a) that the Court did not accept the evidence of Mr Cox; (b) that the Court found that there was a "reasonable possibility the account given by the [appellant] was correct and raised a reasonable doubt as to his guilt"; and, (c) that the Crown was found not to have proved the fourth or fifth element of the offence of dangerous driving and "that there was an inference that could be drawn inconsistent with that conclusion".
The Crown accepted that Payne DCJ found that the Crown did not establish by proof beyond reasonable doubt that the appellant "did not honestly believe he was safe to drive nor this belief is not reasonable".
In relation to the negligent driving charge, the Crown case was essentially that the appellant was so tired, in the circumstances, that his driving was a danger to the public. The Crown submitted that, "having regard to the evidence that the car veered or drifted", as the appellant "was driving in the early hours of the morning", and because in the proceeding days the appellant "did not have adequate sleep" meant that the Court would be satisfied beyond reasonable doubt that the appellant drove negligently. In this regard, the Crown placed considerable emphasis upon the decision in Kroon at 19, where King CJ stated that the "cases must be rare in which a driver who falls asleep can be exonerated of driving without due care at least, in the moments preceding sleep".
The focus of the Crown case, as Payne DCJ recorded in the negligent driving judgment, was upon "the very short period of time", immediately prior to the appellant's car veering across Kurrajong Road: it was during this period of time, prior to the appellant falling asleep, that the negligent driving occurred. As to the Crown case, two matters should be noted. The first is that that negligent driving case - that is, the conduct giving rise to the offence, and the time period involved - was not, in my view, materially different to the dangerous driving case. The second is that the ready explanation for the Crown's reliance upon the same conduct over the same period almost certainly lies in the fact that the negligent driving trial was conducted on the same evidence as the dangerous driving trial.
The appellant disputed that he drove his car negligently submitting that the Crown was required to prove beyond reasonable doubt that the appellant "did not believe on reasonable grounds that his driving was negligent". Further, in relation to this matter, the appellant drew attention to the findings made by Payne DCJ - in connection with the defence of honest and reasonable mistake - and submitted that as the Court had found "that the honesty of the [appellant's] account cannot be discounted and as the Crown have not proved it was not reasonable for him to hold that belief, the Crown has not established this element". That is, the appellant argued that the findings in connection with honest and reasonable mistake of fact were exculpatory of the negligent driving offence.
[11]
The negligent driving judgment
Following oral submissions, Payne DCJ delivered brief ex tempore reasons.
The structure of the reasons, to a large degree, adopted what was argued by the Crown. Thus, in what follows, it is necessary to set out the Crown's submissions, as recorded in Payne DCJ's judgment.
The judgment commenced by recording that, as a consequence of the dangerous driving judgment, the Crown "correctly says the Court ultimately did not accept the evidence of Mr Cox" and that the Court also "found that the Crown did not satisfy by proof beyond reasonable doubt that the [appellant] did not honestly believe he was safe to drive nor this belief was not reasonable".
Payne DCJ then went on to outline the Crown case - being: (a) the "fact of veering and that the car drifted means the [appellant] was tired"; (b) that during the veering "which clearly happened in this case, just prior to it, there must have been a period or even the period when he was veering, that he was not in a fit state to drive at that time": this submission relied upon the evidence of Professor Grunstein which was to the effect that "it would be a rare occasion that somebody just fell asleep"; (c) although the Court is only concerned "with one microsleep", there "would have been warning to [the appellant] prior to that microsleep, a warning of driving negligently just before, which is a different circumstance of what his state was when he set out to drive; that is, that he was in a fit and proper state to drive"; and (d) relying upon what was said by King CJ in Kroon, referred to in [78], above, submitted that this was not a "rare" case where the driver could be exonerated: "having regard to the evidence that the car veered or drifted, that the [appellant] was driving in the early hours of the morning, that the preceding date he did not have adequate sleep, the Court would be satisfied beyond reasonable doubt that at the time of this" collision the appellant drove negligently causing the death of the two cyclists.
Having set out the Crown's submissions, Payne DCJ then dealt with honest and reasonable mistake, and rejected a submission made by the appellant that the finding that was made in the dangerous driving judgment carried through to the negligent driving offence:
That was clearly, though, in the context of dangerousness and not negligence, and the focus here is in the very short period before which he veered and was veering.
[12]
The grounds of appeal
The appellant, by amended notice of appeal filed with leave at the hearing, raises the following grounds:
1. The conviction "is unreasonable or cannot be supported" having regard to:
1. the erroneous finding of fact of the trial judge that there was "no evidence to indicate that [the appellant] just spontaneously fell asleep";
2. the erroneous finding of fact of the trial judge that the appellant "'had some warning' that he would end up on the opposite side of the road".
1. The trial judge failed "to provide reasons, or adequate reasons by which the prosecution proved":
1. that the appellant was driving negligently at the relevant time; and/or,
2. that the prosecution "had negatived the honest and reasonable ground of exculpation beyond reasonable doubt".
The amended notice of appeal was filed to reflect the limited nature of the appeal conferred by s 5AA(1) of the CAA. In relation to ground 1, although the chapeau to the ground refers to the conviction being "unreasonable" or unsupported (which adopts a formulation for an appeal against conviction under ss 5(1) and 6(1) of the CAA), the appellant did not argue that this formulation was itself a ground within s 5AA(1) of the CAA; rather, the argument was that each sub-ground reflected a discrete error of law. I have approached the matter on that basis.
[13]
Introduction
There are two parts to the appellant's first ground of appeal. The first part is that Payne DCJ erred in finding that there was no evidence to support a finding that the appellant "just spontaneously fell asleep" (ground 1(a)). The substance of the appellant's complaint is that Payne DCJ erred in determining there was no evidence of that fact when there was. The second part of the ground of appeal is that Payne DCJ erred in finding that the appellant "'had some warning' that he would end up on the opposite side of the road" (ground 1(b)).
[14]
Ground 1(a): the finding that there was no evidence the appellant "just spontaneously fell asleep"
As developed during submissions, the essential argument of the appellant was that, contrary to the finding made by Payne DCJ, there was evidence capable of supporting a finding that the appellant "just spontaneously fell asleep". This included evidence from those drivers who observed the appellant's car in the moments before the collision, as well as evidence from the appellant and Professor Grunstein.
There is no doubt that it is an error of law to make a finding of fact for which there is no evidence: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [90]-[91] ('Kostas'); Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 155 ('Azzopardi'). It is equally an error of law to determine that there is no evidence of a fact when the contrary is so. That is because "what amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law": Kostas at [91]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355; [1990] HCA 33.
In my respectful view, the finding made by Payne DCJ - that there was no evidence to indicate that the appellant just spontaneously fell asleep - was erroneous: contrary to that finding, there was evidence capable of supporting that inference and finding, and to hold otherwise was an error of law.
That evidence includes the following:
1. The evidence of the appellant immediately after the collision: the appellant, immediately following the collision, said to Mr Andrews was that the appellant said: "I fell asleep". When approached by Constable Mannix, the appellant advised her that he "was on my way to work, next thing I know I hit the guardrail. I pulled over and stopped the car. I must have fallen asleep". Following his arrest, Constable Mannix again asked the appellant what had happened, and he replied: "Not sure, fell asleep, I think. I woke up on the other side of the road, I pulled back to the other side of the road".
2. The evidence of the appellant in his statement dated 5 February 2021: the appellant's evidence, in pars 9-11 of his statement, was to the effect that when he commenced driving to work he was "refreshed and alert" and in a "fit state to drive safely to work"; that he usually drove to work at around the same time each morning, and had never had any "problems driving" when doing so; on the date of the collision he was "in the same mental and physical condition as my previous driving journeys to work in the mornings", and that there was "nothing different" when compared to those other early morning journeys.
3. The evidence of Rebecca Patterson, Matthew Andrews and Karl Reilly: their evidence (earlier set out see [24]-[28], above), which was accepted by Payne DCJ, was: according to Ms Patterson, "there was nothing out of the ordinary or unusual in the [appellant's] driving before the [appellant's] car moved onto the incorrect side of the road"; that Mr Andrews "only saw one drift"; and, in relation to Mr Reilly, his observation was that "it was like [the appellant] fell asleep".
4. The evidence from Professor Grunstein: Professor Grunstein relevantly gave evidence as follows:
1. that "it is possible for a person to fall asleep without warning";
2. "… there are research studies which suggest that some people are poor predictors of their ability to fall asleep … there are people who can fall asleep without what we would sort of consider sort of warning. I mean, most people would perceive sleepiness, but I would not say that that occurs in every person";
3. "… the perception of sleepiness can occur … may not occur in a classical fashion. People may be unaware … I just think it's important to understand that there's a fair amount of variation in the population" and, later, that research had demonstrated "variation amongst individuals' ability to predict sleepiness".
[15]
Ground 1(b): the finding that the appellant "'had some warning' that he would end up on the opposite side of the road"
The appellant submitted that the evidence did not, and could not, support a finding that the appellant "had some warning" that he was about to fall asleep: as was put during submissions, the appellant argued that there was "no evidence, let alone any clear evidence that he had some warning".
The Crown sought to uphold the finding, submitting that the circumstances of the accident, what the appellant said to Mr Andrews following the collision - "I fell asleep" - and the evidence of Professor Grunstein were, in combination, capable of supporting that finding.
The evidence about what "warning" a tired driver might receive before they fall asleep was, to a degree, conflicting. That this was so is evident from the dangerous driving judgment, where Payne DCJ noted that "Professor Grunstein said it is possible for a person to fall asleep without warning". Nevertheless, in my view there was evidence - particularly from Professor Grunstein - capable of supporting the finding made by Payne DCJ. That evidence was to the effect that "most people" can perceive when they are becoming "sleepy". In my view, and as the Crown submitted, the evidence from Professor Grunstein to that broad effect, together with the circumstances of the collision and what the appellant said to Mr Andrews following it were capable of supporting the finding that the appellant did have some warning.
I do not accept, therefore, that there was no evidence to make the finding. Further, I do not accept the submission that, in terms, there was an absence of "clear evidence": an error of that kind would not be an error of law (or an application of wrong principle). That is because a finding that "is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way" is an error of fact, not of law: Azzopardi at 156. Moreover, "no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another": Azzopardi at 151. That is the position here. To the extent that the submission was possibly wider - viz., extending to an argument that there was no probative evidence (Bruce v Cole (1998) 45 NSWLR 163, 188-189; [1998] NSWCA 45 ('Bruce')), I do not accept it. In my view, assuming that formulation is appropriate when dealing with a statutory appeal confined to an error of law in a judicial context (an assumption that may be doubted: Bruce at 189), the evidence did not lack that character, and the submission did not extend to explaining why that was not so. The fact there was a degree of conflict in the evidence does not, in my view, equate to the evidence having "no probative force".
[16]
Ground 2: the failure to provide legally sufficient reasons in connection with the defence of honest and reasonable mistake
[17]
Introduction
By this ground of appeal, the appellant argued that the logic of the finding in connection with honest and reasonable mistake of fact in the dangerous driving judgment was required to be carried forward into the negligent driving judgment, but that it was not - with the consequence that there was an inconsistency between the two verdicts. And, to the extent that it was not, Payne DCJ failed to provide legally sufficient reasons because they failed to engage with, and resolve, what the appellant argued was the inconsistency between the verdicts. This inadequacy with the reasons, the appellant argued, was an error of law.
The Crown submitted that Payne DCJ's reasons explained the precise basis for which Payne DCJ found the negligent driving offence proven beyond reasonable doubt: the Crown argued that there was no relevant inconsistency between the verdicts, but they were readily explicable - and explained as such by Payne DCJ.
The ground thus involves consideration of whether there is inconsistency in the way argued by the appellant, and the manner in which Payne DCJ addressed honest and reasonable mistake of fact in each judgment. The ground was argued on the basis that demonstration of inconsistency would constitute error in the way alleged by the appellant.
[18]
Principles: factual inconsistency and reasons
The first part of the appellant's argument involved a complaint about factual - as opposed to legal (or technical) - inconsistency. In that situation, inconsistency imposes "a test of logic and reasonableness": the Court must be satisfied that the two verdicts cannot stand together: Mackenzie v The Queen (1996) 190 CLR 348, 366; [1996] HCA 35 ('Mackenzie'). (When raised as a ground in a conviction appeal under s 5(1) of the CAA, inconsistent verdicts render the resulting convictions unsafe or unsatisfactory; they are "unreasonable, or cannot be supported, having regard to the evidence" (s 6(1) of the CAA): here, as noted, the appellant relies upon inconsistency as a step in his challenge to the reasoning of Payne DCJ).
Some further principles should also be noted about factual inconsistency. First, conviction on one count on an indictment, with an acquittal on another (or others) does not, without more, demonstrate inconsistency: Ganiji v R [2019] NSWCCA 208 at [13]. Secondly, it has been emphasised that an appellate court should not too readily assume inconsistency where there are mixed verdicts, and if there is a "proper way" to reconcile verdicts, by allowing an appeal court "to conclude that the jury performed their functions as required, that conclusion will generally be accepted": Mackenzie at 367; Bussey v R [2020] NSWCCA 280 at [61]. Although these decisions concern inconsistency in the context of verdicts returned by a jury, the principles apply equally to a judge alone trial - albeit that, in such a situation, the process of determining inconsistency involves an examination of the evidence and the reasons of the trial judge. Thirdly, "the obligation to establish inconsistency of verdicts rests upon the person making the submission" - here the appellant: Mackenzie at 368.
In relation to reasons (the second part of the appellant's argument), the appellant's complaint is directed to their sufficiency: specifically, in relation to honest and reasonable mistake of fact, the way in which the reasons of Payne DCJ recorded the steps taken to arrive at the result: Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 at [130].
The extent and content of the reasons required in a given case turns upon the particular circumstances, and the matters in issue. The basic requirement was explained in Hopgood v R [2019] NSWCCA 246 at [47] as follows:
Reasons for verdict following a Judge-alone trial must be such as to enable a proper understanding to be gained of the basis upon which the decision has been reached. The trial Judge must expose his or her reasoning process by identifying the principles of law applied and the findings of fact made and the reasoning process by which those matters are linked: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [28]; AK v The Queen (2008) 232 CLR 438; [2008] HCA 8 at [85]. In determining an appeal against conviction from a trial by Judge alone, this Court should read the reasons of the trial Judge fairly and as a whole.
[19]
Discussion and consideration
The Crown accepted that the reasons of Payne DCJ were required to deal with the honest and reasonable mistake of fact finding made in the dangerous driving judgment, but submitted that the reasons did this in two ways: first, the reasons distinguished the materiality of that finding which, as Payne DCJ stated, was made "in the context of dangerousness and not negligence"; and, secondly, the reasons distinguished between the underlying facts giving rise to each of the offences - which, as Payne DCJ explained, "the focus [in the negligent driving offence] is in the very short period before which he veered and was veering". The Crown thus argued that these two reasons not only explained why Payne DCJ did not carry through the honest and reasonable mistake finding, but that Payne DCJ was correct not to do so: the verdicts were consistent and reconcilable. It also followed, in the Crown's submission, that there was no deficiency in the reasons given by Payne DCJ.
In my respectful view, neither of the two reasons - nor their combination - justify the distinction made by Payne DCJ: I consider the verdicts to be inconsistent. Shortly stated, that is because a careful comparison between the Crown cases for each offence demonstrates that those cases were relevantly indistinguishable - each case propounded the same underlying conduct having occurred over the same period. I explain this further in what follows.
The Crown case, for the dangerous driving offences, was based upon the fact that the appellant drove his car whilst tired, and at risk of falling asleep: specifically, the case was that there were three "microsleep" episodes, and during the period of the third microsleep the appellant's car veered onto the incorrect side of the road and collided with the Armco rail and the cyclists riding in the opposite direction. That case, it is to be remembered, was reliant upon the evidence of Mr Cox and critically had as its focus the short period of time before the collision. That conduct - continuing to drive the car in that state of tiredness - was alleged to be the dangerous driving.
The "time period" over which the Crown case was put was from the time the appellant searched for an address using an 'app' on his mobile telephone until the time of the collision - described by Payne DCJ as the period involving "four minutes and 54 seconds", but the case substantively advanced was that the period of the dangerous driving was the period of driving covering the microsleeps. So much is evident from Payne DCJ (in the dangerous driving judgment) focusing upon "the position just before the [appellant] lost consciousness by falling asleep", because what was dangerous was for the appellant "to be driving the vehicle when he was about to lose consciousness". The identification of the period during which it is alleged the driving was dangerous is, of course, "essential": Jiminez at 584.
[20]
Orders
Having demonstrated legal error in the ways identified, this Court can "order that the determination made … be vacated" (s 5AA(4)(b)) and, thereafter, make any determination that the Court "could have made on the evidence heard on appeal" (s 5AA(4)(b)(i)) or order a new trial (s 5AA(4)(b)(i)). (The power to order a new trial, it should be noted, was introduced by amendments contained in the Justice Legislation Amendment Act 2017 (NSW): the conclusion in Bulga at [103]-[104] to the effect that, upon demonstration of error, this Court does not have power to order a retrial was based upon the terms of s 5AA(4) prior to those amendments).
The appellant sought an acquittal, rather than a retrial. The overriding consideration is whether the interests of justice require a new trial: Gilham v R (2012) 224 A Crim R 22; [2012] NSWCCA 131 at [648]-[649]. Matters that favour a retrial include the public interest in the prosecution and conviction of offenders, and the undoubted seriousness of the events giving rise to the charges: The Queen v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [49].
Notwithstanding these matters, I consider that an order should be made acquitting the appellant of the negligent driving charge. The matters that, in my view, favour that order, rather than a retrial, are as follows. First, the collision occurred nearly 4 years ago, when the appellant was 19 years old (he is now 23 years old). Secondly, the Crown case was not, in my view, overwhelming or compelling: Jiminez at 585. Thirdly, the appellant has already served the entirety of the sentence imposed upon him by Payne DCJ and, further, it is "unthinkable" that the appellant could, if convicted, be subjected to any additional punishment: Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [103]. Fourthly, it is important to emphasise that there was no Crown appeal from the dangerous driving judgment insofar as Payne DCJ dealt with the ground of exculpation being honest and reasonable mistake of fact. A consequence of this, and my characterisation of how the Crown advanced the dangerous driving case and the negligent driving case, is for there to be a different outcome upon any retrial, the Crown would need to advance a case not put at the trial of the negligent driving offence. To allow that to occur would be contrary to the general rule against ordering a retrial so as to enable the Crown to make a new case at that further trial: King v The Queen (1986) 161 CLR 423, 433; [1986] HCA 59; Jiminez at 590-591.
[21]
Endnote
The appellant was initially charged with two negligent driving offences (sequences 3 and 5), but it was accepted that sequence 5 was laid in error and withdrawn.
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Decision last updated: 25 September 2023
HEADNOTE
[This headnote is not to be read as part of the judgment]
Nicholas Parker ('the appellant') was charged with two counts of dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW), one count of negligent driving occasioning death contrary to s 117(1)(a) of the Road Transport Act 2013 (NSW), and a driving offence under s 132(2) of the Road Rules 2014 (NSW). The appellant was found not guilty of the two dangerous driving offences but guilty of the negligent driving offence following judge-alone hearings before Payne DCJ on 11 August 2021 and 21 January 2022 respectively. The appellant pleaded guilty to the driving offence contrary to s 132(2) of the Road Rules and was convicted of that offence by Payne DCJ on 1 April 2022.
The circumstances of the offending were not in dispute. On 19 December 2019 the appellant was driving along Kurrajong Road, Richmond when he fell asleep and veered to the opposite side of the road colliding with two cyclists riding on the shoulder of the road. Both cyclists died due to injuries sustained in the collision. At neither hearing did the appellant dispute that he had fallen asleep, nor that he had veered across the road and collided with the cyclists: the appellant relied upon his honest and reasonable - albeit mistaken - belief that it was safe for him to drive.
The appellant advanced two grounds against his conviction for the negligent driving offence: first, that the conviction was unreasonable or could not be supported because there were material errors in connection with two key findings by Payne DCJ; and secondly, that Payne DCJ failed to provide legally sufficient reasons in connection with the ground of exculpation, honest and reasonable mistake of fact.
The Court (Chen J, Beech-Jones CJ at CL and Dhanji J agreeing) held, granting the appeal and quashing the conviction:
As to ground 1:
Per Chen J (Beech-Jones CJ at CL and Dhanji J agreeing):
1. The finding made by Payne DCJ that there was no evidence that the appellant "just spontaneously fell asleep" constituted an error of law in circumstances where there was evidence capable of supporting that inference and finding: at [91], [94].
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR; [2010] HCA 32 at [90]-[91]; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 155, applied.
1. The evidence about whether the appellant "had some warning" that he was about to fall asleep whilst driving was conflicting. Nevertheless, there was evidence available to Payne DCJ that was capable of supporting that finding. That Payne DCJ preferred one version of evidence to another does not mean that no such evidence was available, nor does it amount to an error of law: at [99].
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 155, applied. Bruce v Cole (1998) 45 NSWLR 163, 188-189; [1998] NSWCA 45, considered.
As to ground 2:
Per Chen J (Beech-Jones CJ at CL and Dhanji J agreeing):
1. Where there was no material factual distinction between the underlying conduct and time period of the dangerous driving and negligent driving offences, Payne DCJ should have carried through the finding of honest and reasonable mistake of fact. Failure to do so rendered the verdicts inconsistent: at [113].
Prineas v R (2018) 86 MVR 148; [2018] NSWCCA 221 at [70]; Jiminez v The Queen (1992) 172 CLR 572, 584, considered.
1. The reasons of Payne DCJ in the dangerous driving judgment and the negligent driving judgment did not adequately deal with what was an indistinguishable Crown case in respect of the different offences: at [124].
Prineas v R (2018) 86 MVR 148; [2018] NSWCCA 221 at [70] considered.
The nature of the appeal
Given that the negligent driving offence was dealt with as a backup offence in accordance with Chapter 3, Part 3, Division 7 of the Criminal Procedure Act, and involved the District Court exercising summary jurisdiction, an appeal against conviction is to the Court of Criminal Appeal: ss 5AA(1) and (7) and 5AD(1) of the Criminal Appeal Act 1912 (NSW) ('the CAA'). In that situation, however, the power of the Court to hear and determine such an appeal is to be exercised by a single judge of the Court as the Chief Justice may direct, unless the judge considers that the appeal "should be dealt with by the full court and notifies the Chief Justice accordingly": s 5AD(3)(a) of the CAA.
The Chief Justice directed that the appeal be heard by Beech-Jones CJ at CL. His Honour advised the Chief Justice that he considered that the matter should be dealt with by a full court and accordingly the Chief Justice determined it would be heard by the Court of Criminal Appeal as constituted.
Section 5AA of the CAA relevantly provides:
5AA Appeal in criminal cases dealt with by courts in their summary jurisdictions
(1) A person -
(a) convicted of an offence, or
(b) against whom an order to pay any costs is made, or whose application for an order for costs is dismissed, or
(c) in whose favour an order for costs is made,
by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.
(1A) ...
(2) …
(3), (3A) (Repealed)
(4) The Court of Criminal Appeal in proceedings before it on an appeal under this section may -
(a) confirm the determination made by the Supreme Court in its summary jurisdiction, or
(b) order that the determination made by the Supreme Court in its summary jurisdiction be vacated and -
(i) make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal, or
(ii) order a new trial in such manner as the Court of Criminal Appeal thinks fit.
(5) Section 7 (4) applies to an appellant on an appeal under subsection (1) in the same way as it applies to an appellant on an appeal under section 5 (1).
(6) ...
(7) This section applies to and in respect of the District Court in its summary jurisdiction in the same way as it applies to and in respect of the Supreme Court in its summary jurisdiction.
The following three matters should be noted in relation to an appeal under s 5AA(1) of the CAA. First, the negligent driving proceedings conducted before Payne DCJ were an exercise of the summary jurisdiction of the District Court, thereby engaging s 5AA(7) of the CAA. Secondly, there is no requirement for leave; the appeal is as of right. Thirdly, an appeal under s 5AA is an appeal in the strict sense, and not by way of rehearing - that is, it is necessary to demonstrate error as a threshold point: Gilmour v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399 at [19]-[20]. Thus, an appeal under this section "can only succeed if the trial judge committed an error of law or applied the wrong principles in his or her fact finding exercise": Bulga Underground Operations Pty Ltd v Nash (2016) 2016 NSWLR 338; [2016] NSWCCA 37 at [96]; Harris v Natural Resources Access Regulator; Timmins v Natural Resources Access Regulator [2023] NSWCCA 16 at [34].
As to this requirement, in a case involving a driver who falls asleep at the wheel, the driver cannot be convicted of dangerous driving in respect of a period during which they are asleep because driving while asleep does not constitute a conscious and voluntary act: Kroon v R (1990) 52 A Crim R 15, 19 ('Kroon'). Nevertheless, in that situation, for the purposes of determining whether the driver is guilty of driving in a manner dangerous (and the requirement to establish contemporaneity between the dangerous driving and the death), "the relevant period of driving is that which immediately precedes [their] falling asleep": Jiminez at 578.
Section 52A(8) of the Crimes Act provides a limited number of defences to the offence of dangerous driving occasioning death. Those defences include where the death or grievous bodily harm occasioned by the impact was not attributable to (as relevant) the fact that the driver was under the influence of alcohol or drugs (s 52A(8)(a)); or the speed at which the vehicle was driven (s 52A(8)(b)); or the manner in which the vehicle was driven (s 52A(8)(c)). As none of these defences were raised as relevant by the appellant at trial, they can be put to one side.
In relation to the offence of negligent driving occasioning death, there are two elements: the driving was negligent and that driving occasioned death. As to the first element, negligent driving "is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances": Yeo at [27]; Prineas v R (2018) 86 MVR 148; [2018] NSWCCA 221 at [76]. When considering whether an offence has been committed, the Court is required to have regard "to all the circumstances", including the matters in ss 117(3)(a)-(c) of the Road Transport Act.
There are no statutory defences under the Road Transport Act to the offence of negligent driving.
Here, the ground of exculpation was clearly raised at both trials. The "fact" relied upon as negating the guilt of the appellant was his honest and reasonable belief that it was safe for him to drive - a belief that was set out in the statement from the appellant that was admitted into evidence without objection (see [33], above). As I will shortly explain, it provided the basis for the appellant's acquittal in the dangerous driving trial, but it failed to exculpate the appellant in connection with the negligent driving offence. The manner in which Payne DCJ dealt with honest and reasonable mistake of fact in the negligent driving judgment is a - possibly the - central basis for the appellant's challenge to his conviction in this Court: the appellant's essential argument is that the finding made in the dangerous driving judgment in connection with honest and reasonable mistake of fact should have been, but was not, carried forward by Payne DCJ when dealing with that issue in connection with the negligent driving offence.
Given the argument raised, it is necessary to set out - in some detail - the way in which the trial was conducted, and the manner in which Payne DCJ resolved the contested issues to acquit the appellant in relation to the dangerous driving charges, but convict him of the negligent driving charge. The appellant and the Crown, it should be noted, accepted that the reasons for judgment - those delivered in relation to the dangerous driving offences and those delivered in relation to the negligent driving offence - should be read together.
The appellant, although invited to do so by Payne DCJ, did not provide an opening of his case.
The Crown's closing submissions were largely in line with the way the Crown case was opened: the central thesis of the Crown case was that the appellant did not fall asleep as a result of a rapid onset of sleep, but rather the appellant persisted in driving following two microsleeps - where the car veered onto the wrong side of the road, which the appellant was able to correct following a return of function. However, it was during the third microsleep that the collision occurred.
As it did during opening submissions, the Crown invited the Court to accept the evidence of Mr Cox - which was to the effect that he observed the appellant's car swerve onto the incorrect side of Kurrajong Road on three occasions in the moments leading up to the collision: on the first two occasions, the car was able to be corrected, but on the third occasion the collision occurred.
The Crown submitted that the Court would find beyond reasonable doubt that leading up to the swerving and immediately prior to the swerving, the appellant was tired and that he would have been aware that he was tired. That conclusion was said to follow, the Crown argued, by reason of the combination of the following strands of evidence: first, the episodes of veering demonstrated that the appellant had undergone several microsleeps (three in total), but had returned to a state of vigilance or return of function after the first and second, but not the third; secondly, the evidence demonstrated that the appellant had, over the two days prior to the collision, insufficient sleep - with the consequence that the appellant would have been tired in the period of the dangerous driving, and before it; and, thirdly, between 4am and 5am, most people have a "propensity to be sleepy". Given those circumstances, there was a period during which the appellant knew or ought to have known that there was a significant risk of him falling asleep at the wheel and that continuing to drive in those circumstances meant that he was driving in a manner that was dangerous to the public.
In relation to the appellant's evidence, contained in his statement dated 5 February 2021, the Crown argued that although the Crown "cannot speak to how honest the belief the [appellant] held that he was in a proper state to drive", the Crown nevertheless submitted "that it was not a reasonably held belief". Although this was not the subject of explicit elaboration, it is clear given the way the Crown argued its case, that the submission was to the effect that the appellant could not have reasonably held any belief that it was safe to drive given the multiple microsleeps - with the consequence that the Crown had demonstrated, beyond reasonable doubt, that the appellant did not honestly believe on reasonable grounds that it was safe for him to drive.
Given the allegation that the appellant "fell asleep and so lost control of the vehicle", Payne DCJ considered "the position just before the [appellant] lost consciousness by falling asleep. What is dangerous is for the [appellant] to be driving the vehicle when he was about to lose consciousness". As to this, Payne DCJ noted that the appellant's case is that "he had no reason to believe he might fall asleep at the point before losing control of the vehicle. The [appellant] contends that he honestly believed it was safe to drive". In those circumstances, Payne DCJ held that it was for the Crown to prove, beyond reasonable doubt, that the appellant "did not hold such a belief. Or if he did, it was not reasonable to hold that belief in all the circumstances, as known to him". As earlier noted (see [61], above), the Crown ultimately did not challenge the appellant's belief; rather, it argued it was not reasonably held.
Payne DCJ referred to Mr Cox's evidence (which is summarised at [29], above) - to the effect that he observed the appellant's car swerving on three occasions leading up to the collision - something that the Crown argued was consistent with the appellant having "microsleeps". However, Payne DCJ did not accept the evidence of Mr Cox: although finding that he was an honest witness, Payne DCJ had concerns about the reliability of his evidence given that the events themselves were traumatic and that the first occasion that he made a statement was on 24 July 2021 - one year and seven months after the accident. (It should be noted that Payne DCJ, in the negligent driving judgment, confirmed that Mr Cox's evidence in relation to the previous episodes of veering, was not accepted).
Payne DCJ accepted the evidence of Ms Patterson, Mr Reilly and Mr Andrews. Their evidence has been earlier set out: see [24]-[28], above. The specific findings made by Payne DCJ were as follows: that according to Ms Patterson, "there was nothing out of the ordinary or unusual in the [appellant's] driving before the [appellant's] car moved onto the incorrect side of the road"; that Mr Andrews "only saw one drift"; and, in relation to Mr Reilly, his observation was that "it was like [the appellant] fell asleep".
In relation to these three witnesses, Payne DCJ found that their evidence "raises in my mind a possibility of there being no prior veering and that Mr Cox was, although an honest witness, not reliable".
In relation to what was described as the "fifth element" - honest and reasonable mistake of fact - Payne DCJ made a number of findings:
I cannot completely discount or reject the honesty and reliability of the account of the [appellant]. It raises a reasonable possibility in my mind, he may be telling the truth. Put another way, the contents of the account may be accurate and he had an honest and reasonable belief that he was in a fit state to drive.
…
… in my view there is a reasonable possibility the account given by the [appellant] is correct and raises a reasonable doubt in my mind as to his guilt. I cannot be satisfied beyond reasonable doubt that the Crown has proved the fourth or fifth element …
The Crown has not satisfied me by proof beyond reasonable doubt that the [appellant] did not honestly believe he was safe to drive nor this belief is not reasonable.
Accordingly, Payne DCJ found the appellant not guilty on both counts.
Following the verdicts, the Crown indicated that it proposed to proceed with the backup and related offences - being: first, negligent driving, contrary to s 117(1)(a) of the Road Transport Act; and, secondly, without lawful excuse, failing to drive to the left of a dividing line on Kurrajong Road, Richmond contrary to s 132(2) of the Road Rules.
The appellant entered a plea of not guilty to the negligent driving charge, but a plea of guilty in relation to the offence under s 132(2) of the Road Rules.
Payne DCJ then concluded:
There is no evidence to indicate that he just spontaneously fell asleep, and the clear evidence is that he ended up on the opposite side of the road and had some warning in that regard.
Accordingly, applying those principles, as stated by the Crown, and giving careful consideration to the defence submissions, I am satisfied beyond reasonable doubt that the offence of negligent driving, albeit that the driving was for a very short period, I am satisfied beyond reasonable doubt the offence of negligent driving is made out by the Crown and I find him guilty of this offence.
In this respect, it is important to emphasise a number of matters. First, in this context, "evidence" simply means "material which could rationally affect the decision-maker's assessment of the probability of the facts in issue": D'Amore v Independent Commission Against Corruption (2013) 303 ALR 242; [2013] NSWCA 187 at [235]. The evidence in my view is clearly of that kind. Secondly, identifying evidence that is capable of supporting a finding says nothing about whether that evidence, in whole or part, should be accepted or, less still, be accepted as sufficient to warrant the finding - they are matters for the tribunal of fact: Azzopardi at 155.
In my view the evidence was unquestionably capable of supporting an inference, and finding, that the appellant did spontaneously fall asleep: to find, as Payne DCJ did, that there was "no evidence to indicate that he just spontaneously fell asleep" was, therefore, an error of law.
For those reasons I would uphold ground 1(a) of the amended notice of appeal.
I would not uphold ground 1(b) of the amended notice of appeal. However, the following three matters should be noted.
First, in dismissing this ground of appeal, I have not overlooked that, having found that there was no evidence that the appellant "just spontaneously fell asleep", the related finding - that the appellant "had some warning" - appeared all but inevitable. However, the ground of appeal and the submissions were not directed to such a complaint. It is, therefore, unnecessary to consider this further and, in particular, whether the finding the subject of this ground was undercut based upon the error the subject of ground 1(a).
Secondly, there is, to my mind, a question about the sufficiency of the reasons in respect of this critical finding: there was, as I have indicated above, undoubtedly evidence that might, on its own, or with other evidence, justify and support that finding. But the evidence was not all one way, and the particular relationship of that evidence to the specific circumstances of the appellant was by no means clear. Nevertheless, given the ground of appeal, it is unnecessary to consider the sufficiency of the reasons further.
Thirdly, I have also not overlooked Payne DCJ's reference to "applying those principles" in the dispositive conclusion of the judgment: see [86], above. Aside from setting out the terms of s 117 of the Road Transport Act, the only 'principles' identified were those drawn from the decision in Kroon. Payne DCJ recorded the submissions of the Crown which placed some emphasis upon two aspects of that decision: where King CJ (at 19) stated that the "cases must be rare in which a driver who falls asleep can be exonerated from driving without due care at least, in the moments preceding sleep"; and where King CJ (at 19) said that there "must be very few cases in which a normal healthy person falls asleep at the wheel of a vehicle without any prior warning". It is difficult, given the Crown's submission that the present case was "not one of those rare cases" of the kind referred to in Kroon and Payne DCJ's reference to "applying those principles", not to arrive at a view that Payne DCJ was not only significantly persuaded by the Crown submission, but considered the remarks of King CJ to be 'principle' informing Payne DCJ's approach when making this finding. In my view, the decision in Kroon, although highly instructive in terms of first principle, does not seek to establish a series of presumptions, less still legal principles, about when a person who falls asleep at the wheel of a car might have warning that that is about to occur - nor, in my respectful view, did it purport to do so. The decision in Jiminez at 581 confirms as much. Again, given the ground of appeal and submissions were not directed to such a complaint, it is unnecessary to consider the issue further.
Although the decision in Hopgood (and the authorities referred to) concern the obligation upon a judge sitting without a jury to provide reasons, and the content of those reasons, under s 133 of the Criminal Procedure Act (or the statutory predecessor or statutory equivalent), there is no reason to doubt their general application to a judge alone hearing under s 168 of the Criminal Procedure Act. That is because, in the absence of express statutory provision, "a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied": Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34 at [8]; DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [32].
Given the above, in relation to honest and reasonable mistake of fact, Payne DCJ was required to determine whether, as the appellant argued, the evidence demonstrated that the appellant "had no reason to believe he might fall asleep at the point before losing control of the vehicle" and that the appellant "honestly believed it was safe to drive". It was, therefore, in that context - and upon that case - that Payne DCJ concluded that the Crown did not negative that the appellant "did not honestly believe he was safe to drive nor this belief is not reasonable".
Notwithstanding this finding, and the context (being the Crown case) in which it was made, Payne DCJ held that the finding made in connection with honest and reasonable mistake was not required to be carried through to the negligent driving offence because the finding was "in the context of dangerousness and not negligence, and the focus here is in the very short period before which he veered and was veering".
It is, of course, correct, as Payne DCJ observed, that the finding was in the context of the dangerous driving offence "and not negligence". And, of course, in a given case, there may well be a distinction between the conduct said to give rise to dangerous driving, and the conduct said to give rise to negligent driving. But that is not this case. The conduct that underlay the dangerous driving charge also underlay the negligent driving charge; that is, the Crown case in respect of each offence rested on the same essential facts - being, that the appellant continued to drive when there were signs and symptoms of tiredness in the period leading up to the appellant falling asleep whilst driving the car involving the same period of time ("four minutes and 54 seconds" although again, critically, the focus was upon the short period of time immediately prior to the collision). The serious breach of the proper conduct of the vehicle, or the negligent driving of it, was thus the same.
In relation to the finding made by Payne DCJ - viz., that it was made "in the context of dangerousness and not negligence" - the Crown sought to emphasise and uphold that finding, submitting that "was made in the context of the higher standard required to establish dangerous driving" - that is, so it was argued, the appellant's "subjective belief that it was not dangerous to drive and the reasonableness of that belief in the context of the serious offence of dangerous driving" (Crown submissions at [37]). I do not accept that submission, given what I consider to be the relevantly indistinguishable Crown cases advanced in connection with the offences and the fact that the appellant's evidence (unsurprisingly) did not distinguish between the respective offences.
The Crown also submitted that the circumstances giving rise to the negligent driving were "different circumstances" from those when the appellant "set out to drive". That may be accepted, but it is not a basis for differentiation. That is because the period of driving alleged to constitute the offending conduct did not include the driving at that point in time but only, in general terms, covering the period commencing "four minutes and 54 seconds" prior to the collision but, more specifically, it involved the moments just prior to the appellant losing consciousness on Kurrajong Road.
It follows, from what I have set out above, that the further reason given by Payne DCJ to explain why the honest and reasonable mistake finding should not be carried forward - "the focus here is in the very short period before which he veered and was veering" - is not, in my respectful view, a point of distinction given the Crown case for each offence. In my view, the exculpatory finding made by Payne DCJ in relation to honest and reasonable mistake necessarily covered not only the "four minutes and 54 seconds" period the subject of the dangerous driving case, but the "very short period" of time before the "veering" as found by Payne DCJ.
The Crown sought to uphold the reasoning of Payne DCJ based upon what was said in Prineas. The decision in Prineas illustrates that, in a case involving a driver falling asleep at the wheel, an acquittal of a dangerous driving offence, based on honest and reasonable mistake of fact, does not mandate a conclusion that the driver cannot be guilty of the lesser charge of negligent driving. Nevertheless, the decision also emphasised that whether that can, or should, result is a question of fact and, further, that any exculpatory finding in connection with honest and reasonable mistake of fact in relation to the dangerous driving offence would need to be reconcilable with the negligent driving offence: at [70]. The decision in Prineas also confirmed that, "given the difference in the seriousness of the two offences and the lesser test required to establish negligent driving", there would not necessarily be conflict in finding honest and reasonable mistake in relation to the more serious charge, but not the lesser one: at [70].
In my view, the reliance upon Prineas only goes so far. That is because, ultimately, this case turns upon its own facts and, importantly, the Crown case in connection with the respective offences. Once it is recognised that there was no material difference between the Crown cases for each offence, then the fact there is a "lesser test" is of no moment, and cannot in and of itself explain, nor justify, the inconsistency between the outcome in the dangerous driving judgment - based upon the specific finding made in connection with honest and reasonable mistake of fact - and the outcome in the negligent driving judgment.
In my respectful view, the trial judge's reasons did not adequately deal with the consequences of what was, relevantly, an indistinguishable Crown case in respect of the different offences. In relation to the first reason - that the honest and reasonable mistake finding was "in the context of dangerousness and not negligence" - it did not address why the different offences meant that there was a distinction to be made in connection with that finding, nor what that distinction was. In relation to the second reason - that the focus for the negligent driving offence was "in the very short period before which he veered and was veering" - it proceeded upon what I consider to be an erroneous basis: namely, that the respective offences had a different "focus" when, in my view, they did not. Seen in this way, the complaints of the appellant relate to the failure of Payne DCJ to correctly identify and characterise the two key elements of the Crown cases - being the nature of the conduct that underlay each offence, and the relevant period of time to consider whether that offence had occurred.
For those reasons I would uphold ground 2 of the amended notice of appeal.
For the above reasons, I propose the following orders:
1. Appeal allowed.
2. Quash the appellant's conviction for the offence of negligent driving occasioning death.
3. In lieu thereof, order that the appellant be acquitted.