Prineas v R

Consideration

There was no issue between the parties as to the correct test to be applied by this Court. SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]-[14] restates the principles in M v The Queen and it was common ground that the same principles apply to a judge alone trial. Accordingly, the essential question under Ground of Appeal 1 is whether it was open to the trial judge to find beyond reasonable doubt that the applicant's manner of driving involved a departure from the standard of care which an ordinary prudent driver would observe in the circumstances (Director of Public Prosecutions (NSW) v Yeo and Anor at [27]).
It was also common ground between the parties that in circumstances in which a driver falls asleep while driving the relevant period of driving to consider is that which precedes the driver falling asleep. This was made clear in Jiminez v The Queen. There the High Court (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) referred with approval to the decision of Kroon v R (1990) 55 SASR 476 in which King CJ said at p480: "Every act of falling asleep at the wheel is preceded by a period during which the driver is driving while awake and therefore assuming the absence of involuntariness arising from other causes responsible for his actions. If a driver who knows or ought to know that there is a significant risk of falling asleep at the wheel continues to drive the vehicle he is plainly driving without due care and maybe driving in a manner dangerous to the public. If the driver does fall asleep and death or bodily injury results, the driving prior to the falling asleep is sufficiently contemporaneous with the death or bodily injury to be regarded as the cause of the death or bodily injury …"
Both Kroon v R and Jiminez v The Queen involve consideration of the offence of dangerous driving rather than negligent driving. As his Honour appreciated in this case, the distinction is an important one. This was made clear in R v Robert Borkowski [2009] NSWCCA 102 where Howie J (with whom McClellan CJ at CL and Simpson J agreed) said: "56 As the law presently stands, there is a rational, logical and cohesive hierarchy of offences concerned with the infliction of death or serious injury by the use of a motor vehicle. The offences range from negligent driving causing grievous bodily harm (s 42(1)(b) of the Road Transport (Safety and Traffic Management) Act with a maximum penalty of 9 months imprisonment) through the driving offences in the Crimes Act to manslaughter by gross criminal negligence. All of these offences involve varying degrees of negligence, however the actual conduct may be described, ranging from a lack of care and proceeding through dangerousness to culpable negligence: R v Buttsworth [1983] 1 NSWLR 658. …"
This distinction was recognised by Barwick CJ in McBride v The Queen [1966] HCA 22; 115 CLR 44 at 49-50 in the context of a discussion of "speed or in a manner dangerous to the public" where his Honour said: "14 This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby. …"
The trial judge accepted that the applicant had an honest belief that he was not too tired to drive. His Honour also found that: 1. During the preceding five days the applicant had worked a "day shift" Monday to Thursday. 2. Although he had not worked the Friday preceding the collision, the applicant had slept at night on the Thursday but had not slept during the day before he attended work, i.e. he had been awake for 20-21 hours by the time of the collision after working. 3. He was very familiar with the road and route. 4. The distance he had to travel and had travelled was almost 40km and usually took 40 minutes. 5. He had implemented precautions to increase alertness.
In relation to (5), the applicant had consumed coffee during his shift before he left to drive home, had the radio on loudly and the driver's window down as he drove in the lower Blue Mountains area at 4am on an August night, which must have provided cold air. In the context of the offence of negligence, it was open to the trial judge to draw the inference which he did, that these actions were precautions against tiredness.
Although the Crown failed to establish to the satisfaction of his Honour that the applicant experienced any warning that he was tired or likely to fall asleep, the basis for his Honour's finding of guilt of negligent driving was that the circumstances were such, looked at objectively, that the applicant was driving while affected by tiredness. This carried a risk that he might fall asleep. The issue was not whether there was or was not a warning of the onset of sleep but whether, looked at objectively, it was reasonable for the applicant to hold the belief which he did in the particular circumstances which then prevailed, i.e. not having slept for 21 hours after a heavy week of work and given the distance and length of the journey undertaken.
In the context of the lower standard required to establish negligent driving, there was ample evidence for his Honour to conclude that honest and reasonable mistake was negatived in that it was unreasonable for him to believe that he was fit to drive home and that driving in those circumstances was negligent. Ground of Appeal 1 has not been made out.
While pleaded as a separate ground of appeal, Ground 2 also contends that the verdict of guilt was unreasonable. In MC v R [2017] NSWCCA 274 Hoeben CJ at CL (with whom Davies and Bellew JJ agreed) said: "90 Under the single ground of appeal, the applicant contends that the guilty verdicts on Counts 1 - 4 are also unreasonable because they are inconsistent with the not guilty verdicts returned by the jury in respect of Counts 5 - 6. The approach to be taken by this Court when such an assertion is made is well established: Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 at 366 [31] - [32]; R v Markuleski at [219] - [221]; TK v R [2009] NSWCCA 151; 74 NSWLR 229 at [2] - [8]; Peiris v R [2014] NSWCCA 58; 240 A Crim R 114 at [1] - [24]; Lepine v R [2017] NSWCCA 83 at [31]; Abbey v R at [38] - [40]; Nguyen v R [2017] NSWCCA 145 at [34] - [47]. 91 Ultimately, the test is one of logic and reasonableness. The applicant must establish that the different verdicts cannot stand together in the sense that no reasonable jury that applied their minds properly to the facts could arrive at that conclusion. If there is a proper way by which the verdicts can be reconciled, assuming a conclusion that the jury performed their functions as required, that conclusion will generally be accepted (MG v R [2017] NSWCCA 14 at [88])."
When considering this ground of appeal, it is important to keep in mind the distinction between the seriousness of the offending in the offences of dangerous driving and negligent driving. The departure from the standard of driving required to make out the offence of dangerous driving needs to be significantly more serious than that required to make out the offence of negligent driving. This was made clear by Johnson J in Director of Public Prosecutions (NSW) v Yeo and Anor when his Honour referred to "the degree of negligence appropriate to the offence" when dealing with the hierarchy of driving offences. A similar observation was made by Barwick CJ in McBride v The Queen when his Honour referred to a "serious breach of the proper conduct of a vehicle upon a highway …" in the context of an offence of "speed in a manner dangerous to the public".
Accordingly his Honour's findings that the applicant honestly believed that he was safe to drive in the context of the dangerous driving trial and that this was a reasonable belief in the circumstances do not preclude a conclusion that his driving was negligent in all the circumstances. This is because the finding by his Honour in the trial that the applicant honestly believed it was "safe" to drive and that this was reasonable in the circumstances (i.e. the Crown failed to negative either limb of the "defence") had nothing to do with whether the applicant's driving "was negligent in all the circumstances". Whether the driving was negligent was a separate issue to what the applicant's belief was and whether such belief was reasonable.
As was made clear in R v Buttsworth [1983] 1 NSWLR 658 at 669 (O'Brien CJ of Cr D with whom Street CJ and Nagle CJ at CL agreed) the test for negligent driving is an objective one: "As to the second contention for the appellant that the negligence must be proved to have been wilful or intentional his Honour was equally of the view that it could not be sustained for as he said (at 64): ' Intention need not be shown at common law, either civil or criminal, unless for instance the charge is murder but of course it may be made essential by statute. However, this statute does not use any term indicating that intention must be proved, the context does not require that it should be implied, and, seeing that the safety of the people using the public roads, which it is the main object of the statute to secure, is as much menaced by unconscious as by intentional negligence, there is no reason why any word should be inserted or understood in the section which is not there already.'"
The issue on which the applicant succeeded was that he had an honest and reasonable belief that it was not dangerous for him to drive in the context of the prosecution failure to negative the reasonableness of that belief as applicable to the dangerous driving charge. The issues upon which the applicant succeeded were his 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. He succeeded on both issues or both limbs in relation to that defence.
In relation to negligent driving, the question strictly formulated is whether in that context, in the particular circumstances prevailing, it was reasonable for him to hold a belief that driving home did not involve a lack of care. His Honour found that such a belief was not reasonable. That finding was well open to his Honour on the facts and was not in conflict with his earlier finding in relation to the dangerous driving charge given the difference in the seriousness of the two offences and the lesser test required to establish negligent driving. Ground of Appeal 2 has not been made out.
The orders which I propose are: 1. Leave to appeal against conviction is granted. 2. The appeal against conviction is dismissed.
FULLERTON J: I agree with Hoeben CJ at CL that leave to appeal should be granted but the appeal dismissed. I also agree with R A Hulme J that the grounds of appeal raised distinct issues.
The first ground of appeal obliges this Court to undertake an independent assessment of the evidence and to determine for itself whether, upon the whole of the evidence, it was open to the tribunal of fact (in this case the judge sitting alone) to find the offence of negligent driving contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW) proved beyond reasonable doubt, that is whether it was open to the trial judge to be satisfied beyond reasonable doubt that the applicant was driving in a manner which involved a departure from the standard of care expected of an ordinary prudent driver in the particular circumstances of the driving episode under consideration. I agree with the conclusion reached by Hoeben CJ at CL and R A Hulme J that there was ample evidence to support a finding that the applicant drove negligently and to find that fact proved to the criminal standard including his Honour's further finding that it was not reasonable for the applicant to hold a belief that driving in all the circumstances did not involve a lack of care.
I agree with R A Hulme J that the separate question raised by the second ground of appeal does not give rise to any relevant inconsistency. I gratefully adopt the reasoning of Hoeben CJ at CL at [67]-[70] in also agreeing with his Honour that the second ground of appeal has not been made out.
R A HULME J: I agree with Hoeben CJ at CL that leave to appeal should be granted but the appeal be dismissed.
In order for there to be a conviction on the charge of negligent driving causing grievous bodily harm, it was necessary for there to be proof in accordance with the terms of s 117(1)(b) of the Road Transport Act 2013 (NSW) and, in the circumstances of this case where the "defence" was raised for which Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28 is usually cited, that: (1) the applicant drove a motor vehicle on a road negligently, (2) that the driving occasioned grievous bodily harm, and (3) that the applicant did not believe on reasonable grounds that his driving was not negligent.
The applicant has abandoned any contest as to the second element. Accordingly, the elements the prosecution was required to prove that are relevant in this Court are whether the applicant drove negligently and whether the prosecution disproved the honest and reasonable mistake of fact "defence".
The fact that these are distinct issues, both of which the prosecution was required to prove to the criminal standard, is made clear in the judgment of the plurality in Jiminez v The Queen, (1992) 173 CLR 572; [1992] HCA 14 at 582: "If honest and reasonable mistake is not excluded in the case of a statutory offence, it will afford an excuse for what would otherwise be an offence, although the burden of establishing the excuse will in the first place be upon the defendant. The burden on the defendant is evidentiary only, and the prosecution retains the burden of proving guilt by establishing beyond reasonable doubt that the defendant did not honestly believe on reasonable grounds in the existence of facts which, in the circumstances, would take his act outside the operation of the statute."
Unfortunately, I cannot agree with the reasoning of Hoeben CJ at CL in that his Honour considers that Grounds 1 and 2 "essentially raise the same issue and can be dealt with together" (above at [50]). The conflation of the two issues can be seen, for example, at [63]-[64] of the judgment. As I see it, Ground 1 raises a distinct question as to whether it was open to the trial judge to be satisfied beyond reasonable doubt that the applicant was driving negligently. Ground 2 raises a quite different issue which concerns the trial judge's consideration of whether the prosecution had disproved (or negatived) the "defence" of honest and reasonable mistake of fact.
To be clear, the applicant's submissions involve the following contentions: Ground 1: the evidence was insufficient to prove negligent driving beyond reasonable doubt. (AWS [7]-[8]) Ground 2: there was inconsistency in the reasons for finding that the Crown had not negatived the honest and reasonable mistake "defence" on the dangerous driving charge but had done so on the negligent driving charge. (AWS [11]-[14])
The trial judge did not explicitly state that he was satisfied that the applicant was driving negligently. (Nor did he state a finding of driving in a manner dangerous to a person in relation to the dangerous driving charge, but nothing presently turns on that.) The applicant makes no criticism of that and I take this to be because it is implicit in the manner in which his Honour addressed the honest and reasonable belief "defence" that he was satisfied of the more fundamental element that there was negligent driving. There was no sensible reason for him to be even considering the "defence" if he had a reasonable doubt about the quality of the driving.
I am satisfied that it was well open to the judge to be satisfied beyond reasonable doubt that the applicant's driving was negligent. The fact of the matter is that the applicant fell asleep and, in all of the circumstances, that was not a surprising occurrence. Driving in such a state of tiredness that sleep could suddenly occur is clearly something that the judge was entitled to regard as negligent. The Crown concisely put it in a manner with which I agree as follows (CWS at [21]): "Whilst the Crown may not have been able to establish to the satisfaction of the trial judge that the applicant himself experienced any warning of the onset of sleep, nevertheless the circumstances were such that, objectively speaking, the applicant was driving whilst affected by tiredness which carried a risk that he may fall asleep. That risk increased with the length of the journey. The issue is not specifically whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that in the circumstances, his driving was negligent: Jiminez at 580."
For these reasons I agree that Ground 1 was not made out.
As to Ground 2, I agree with what appears in the judgment of Hoeben CJ at CL at [70] and therefore that this Ground is not made out as well.

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