Parker v R

Background

1. 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.
2. 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.
3. The appellant held a P2 provisional drivers licence - which had been granted three months prior.
4. 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.
5. 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".
6. 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.
7. 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.
8. Both before, and after, the collision there were other vehicles travelling in the same direction as the appellant.
9. 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".
10. Karl Reilly was driving a truck, with two passengers - Matthew Andrews and Cameron Cox - approximately 50-100 m behind the appellant's car.
11. 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.
12. 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.
13. 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?".
14. 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.
15. 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".
16. 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)".
17. 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.
18. 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.
19. 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".
20. 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.

The offences: the statutory provisions and background principles

The statutory provisions

1. 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).
2. 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.
3. 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) …

Background principles: dangerous and negligent driving occasioning death

1. 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').
2. 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].
3. 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.

Honest and reasonable mistake of fact

1. 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').
2. 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.
3. 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].

The trials and judgments

1. 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.

The Crown case

1. 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.
2. The appellant accepted that the first three elements were not in dispute, but contested the fourth and fifth elements.
3. 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.
4. 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".
5. 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.

The dangerous driving judgment

1. On 11 August 2021, Payne DCJ orally delivered her reasons for judgment. The key parts of the judgment are as follows.
2. 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".
3. 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".
4. 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 …
5. 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.

The negligent driving hearing

1. 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.

The Crown case

1. 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".
2. 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".
3. 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".
4. 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.
5. 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.

The negligent driving judgment

1. Following oral submissions, Payne DCJ delivered brief ex tempore reasons.
2. 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.
3. 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".
4. 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.
5. 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.

The grounds of appeal

1. 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".
2. 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.

Introduction

1. 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)).

Ground 1(a): the finding that there was no evidence the appellant "just spontaneously fell asleep"

1. 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.
2. 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.
3. 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.
4. 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".

Ground 1(b): the finding that the appellant "'had some warning' that he would end up on the opposite side of the road"

1. 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".
2. 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.
3. 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.
4. 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".

Ground 2: the failure to provide legally sufficient reasons in connection with the defence of honest and reasonable mistake

Introduction

1. 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.
2. 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.
3. 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.

Principles: factual inconsistency and reasons

1. 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).
2. 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.
3. 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].
4. 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.

Discussion and consideration

1. 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.
2. 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.
3. 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.
4. 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.

Orders

1. 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).
2. 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].
3. 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.

Endnote

1. 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. 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: 25 September 2023