R v ARNOLD No. SCCRM-03-153 [2003] SASC 422 (18 December 2003)

[2003] SASC 422

Court of Criminal Appeal: Perry, Mullighan and Besanko JJ

1 PERRY J I agree with Mullighan J that the evidence amounted to a strong case of dangerous driving.

2 I agree that the appeal should be dismissed for the reasons given by him.

3 MULLIGHAN J The appellant was found guilty by verdicts of the jury of two counts of causing death by dangerous driving, one count of causing grievous bodily harm by dangerous driving and one count of causing bodily harm by dangerous driving. He was sentenced to imprisonment for three years with a non-parole period of one year and was disqualified from holding or obtaining a licence to drive a motor vehicle for five years. He appeals against the convictions.

4 The alleged offences all arise out of a road accident at about 1.30 pm on Sunday 3rd June 2001 on the Adelaide to Victor Harbor Road on a bend near Mount Jagged when a motor vehicle driven by the appellant collided almost head‑on with a motor vehicle driven by Ms Walford in the opposite direction. Two young persons, Ms Jessica Brown and Mr Craig Bailey, who were passengers in the rear of the appellant's vehicle, were killed. Ms Walford and her companion, Mr Cotton, who was a passenger in her vehicle, were injured. The appellant sustained severe injuries. Mr Phree Morter-Grant was a passenger in the front of the appellant's vehicle but he was not severely injured.

5 The appellant was driving his vehicle within the speed limit towards Victor Harbor. He approached a slight bend in the road to his left and crossed over on to his wrong side of the road into the path of Ms Walford's vehicle and the collision occurred. Marks on the road clearly indicate that the appellant's vehicle was totally on the wrong side of the road and the collision occurred as Ms Walford's vehicle was veering slightly towards the centre of the road.

6 This part of the road has one carriageway in each direction separated by double white centre lines. The appellant was prohibited by law to pass over the centre lines on to his wrong side of the road.

7 The mother of the appellant told the jury that he is aged 20 years and had been unemployed before the accident for about two or three months. He was living with her at Port Noarlunga and she and her husband were supporting him. He was not receiving unemployment benefits and she gave him pocket money as was required. He had often driven friends to and from Adelaide on a Saturday night and Sunday morning.

8 On the Thursday before the collision the appellant went out until the early hours of the next morning and slept until about 5.00 pm on the Friday afternoon. The evidence does not disclose what the appellant did on the Friday night or during Saturday. His mother told the jury that he went out on Friday night and did not arrive home during Saturday. On Saturday night he went to Victor Harbor and met Mr Morter-Grant. They went to a birthday party at Goolwa at about 9.00 pm. Mr Morter-Grant consumed amphetamine and smoked cannabis at the party. The evidence does not suggest that the appellant consumed any type of drug. He undertook the role of designated driver. The appellant and Mr Morter-Grant went to Victor Harbor at about 10.00 pm. According to Mr Morter-Grant, the appellant stayed in the motor vehicle. They eventually met up with Ms Brown, Mr Bailey and two other young persons, Ms Mulholland and Mr Lishmund. The appellant drove them to Adelaide arriving at the Rush Night Club in Pirie Street, having parked his vehicle on Hutt Street. There was a difference in the evidence of Mr Morter-Grant, who said they arrived at about midnight, and Ms Mulholland, who said they arrived at about 1.30 am-2.00 am. Mr Morter-Grant went into the nightclub where, he said, he consumed one tablet of the drug known as ecstasy between 2.30 am and 3.00 am. In cross-examination he said that he took the tablet sometime between 2.30 am and 4.30 am. He told the jury that he paid $50 for the tablet and that at 4.30 am he felt affected by ecstasy.

9 The appellant remained in his motor vehicle with Ms Mulholland who was waiting to meet a friend and she left with the friend about 15 minutes later. Mr Morter-Grant returned to the motor vehicle at about 4.30 am. The appellant was in the vehicle and Ms Brown, Mr Bailey and a Mr Lishmund were nearby. The appellant was speaking on his mobile telephone. Mr Morter-Grant told the jury that he was effected by the ecstasy tablet which he had taken. He had not seen the appellant during the period from when he had left the vehicle and had gone into the nightclub until he returned at about 4.30 am.

10 According to Mr Morter-Grant, after discussions among the group, they went to Light Square in the City and he and the appellant went into another nightclub shortly after 5.00 am. He told the jury that most drugs were available in that nightclub, including ecstasy. Mr Johnston is a friend of Mr Morter-Grant. He went to that nightclub at about 6.00 am on the Sunday morning. He saw Mr Morter-Grant at the nightclub who introduced him to the appellant. He told the jury that none of them consumed alcohol or drugs in that nightclub, however Mr Morter-Grant appeared to be affected by drugs or alcohol. He did not consider that the appellant was affected by drugs or alcohol. At about 10.30 am to 11.00 am he went outside and sat in a motor vehicle with Mr Morter-Grant and the appellant. He did not notice effects of alcohol or drugs on either of them. Eventually all three men were back in the nightclub and they left at about 11.30 am to 12 noon. At that time, according to Mr Johnston, Mr Morter-Grant appeared tired and drawn. He said that the appellant seemed to be fine but tired.

11 The appellant, Mr Morter-Grant and Mr Johnston drove to Mr Johnston's home at Mitchell Park. There was a dispute in the evidence as to who drove the vehicle to Mitchell Park but it is a matter of little significance. They went to a shop and had a drink and then went to a park. About half an hour later Ms Brown and Mr Bailey arrived in the appellant's motor vehicle. Mr Johnston described the appellant's condition at this time as much like that of the others. He looked tired but better than when he first left the nightclub.

12 The appellant then proceeded to drive them towards Victor Harbor, with the exception of Mr Johnston, at about 1.00 pm. Mr Morter-Grant was sitting in the front seat for the passenger and the others were in the rear seat.

13 The vehicle was stopped at the McLaren Vale Service Station for petrol where the appellant was seen by Mr Stopp who is a friend at about 12.30 pm to 1.00 pm. He recognised the others in the appellant's motor vehicle. He spoke to the appellant for about two minutes. He told the jury that the appellant appeared fine.

14 According to Mr Morter-Grant, he was feeling tired when the group set off in the appellant's motor vehicle for Victor Harbor as did the others. He said that they all had low energy levels. They stopped at the lookout at Willunga Hill. He told the jury that the appellant looked tired. Each of the group, except the appellant, smoked marijuana. According to Mr Morter-Grant, the appellant declined because, he said, it would put him to sleep. After about 15 minutes or so, the journey towards Victor Harbor resumed with the appellant driving his vehicle and the others in the same positions in the vehicle as when they set off on the journey.

15 Mr Morter-Grant fell asleep. He told the jury that he woke up about 10 seconds or so before the collision.

16 I have mentioned the location of the collision on the Victor Harbor road. Mr Morter-Grant told the jury that when he awoke shortly before the collision, it appeared that the appellant's vehicle was heading for pine trees on the side of the road. He looked at the appellant, who appeared not to have appreciated that the vehicle was heading for the trees. The vehicle was on the wrong side of the road and he saw Ms Walford's vehicle approaching. He called out to the appellant who then steered hard to his left and the collision occurred.

17 Ms Walford told the jury that she was driving back from Victor Harbor to Adelaide and that Mr Cotton was the only passenger. She said she could not remember if there was much traffic on the road travelling in either direction. It was not until shortly before the collision that she saw the appellant's vehicle and at that time his vehicle was at the bend in the road and not far from her vehicle. She said it was crossing the centre lines and it looked as though all of the appellant's vehicle had crossed on to the wrong side of the road. She braked hard and tried to turn her vehicle. Skid marks from her vehicle are shown in photographs taken after the collision. They are on her correct side of the road. A second or so later the collision occurred. Ms Walford suffered many serious injuries.

18 According to Mr Cotton, he first saw the appellant's vehicle when it was at the bend in the road and it was crossing the centre lines on the road surface. He said that by the time of the collision the appellant's vehicle was totally on the wrong side of the road. He estimated that the time between when he first saw the appellant's vehicle and when the collision occurred was five or less seconds. Observation of the photographs showing the bend in the road and the point of impact suggests that such period of time was much less than five seconds if the two vehicles were travelling at about 80 kph.

19 The appellant was severely injured in the accident. There was no medical evidence to describe his injuries and their effect upon him. However, it is clear from the evidence of his mother and facts agreed at the trial that he sustained a closed head injury and various fractures. He was in a coma for some weeks.

20 The appellant was interviewed by a police officer on 26th September 2001. He said that he could not remember if he was the driver of one of the vehicles involved in the collision. When asked the reason for this lack of memory, he said:

"A The amount of - like, they loaded me up with all sorts of drugs. They said medical amnesia. Like the furthest (sic) I can remember back is the Friday night before the accident."

The interview took place in the presence of the appellant's solicitor who, when asked if the appellant had any medical evidence or doctors' reports to support the assertion of medical amnesia as a result of the collision, he said that there were no medical reports in his or, he thought, the appellant's possession. The appellant was then asked if he was prepared to allow police to have access to medical reports and he agreed.

21 The appellant did not give evidence at the trial and did not call any medical evidence as to his injuries sustained in the accident and their consequences, including as to whether he did suffer amnesia and to what extent. The prosecution did not lead any medical evidence about the appellant.

22 I shall refer to the grounds of appeal in respect of which leave was granted.

23 The first ground of appeal is that the learned Trial Judge erred in admitting evidence of Mr Morter-Grant on the topic of the appellant having taken an ecstasy tablet during the morning before the accident.

24 The evidence is that at about 6.30 am to 7.00 am on the Sunday morning when Mr Morter-Grant and the appellant left the Rise nightclub in Light Square and went outside Mr Morter-Grant said to him, "You look off tap. What have you had?" The appellant said that he had taken a pill. He told the jury that the appellant appeared energetic, fidgety, agitated, bouncy and buzzing. He said that on previous occasions he and the appellant had referred to an ecstasy tablet as a "pill". In cross-examination he said that when he spoke to the appellant he said, "You look off tap. You appear messy. What do you want?" He again described the appellant's condition in much the same way as earlier in his evidence. He said that the appellant was under the influence of ecstasy. He described his own condition at that time as "starting to calm down" from the effects of the ecstasy tablet, which he took that night, as feeling pretty tired but he was "still okay and still awake". He said he could see things and he was moving around.

25 Later, at about 11.00 am, Mr Morter-Grant said that he noticed that the appellant was looking "pretty tired". He was pale and black around the eyes. His lips were all dry and he generally did not look energetic.

26 He was also asked about observations which he made of the appellant at about 12 midday. He said that he was pretty pale, he had dark rings around his eyes and he generally looked pretty tired. His energy levels appeared low.

27 I have mentioned the evidence of the drug taking of Mr Morter-Grant during the Saturday/Sunday night and his alcohol consumption and the effect it had upon him. Also, I have mentioned the evidence of Mr Johnston, Mr Stopp and Mr Morter-Grant as to the appearance of the appellant at various times. Leaving aside the evidence given by Mr Morter-Grant about the appellant saying that he had taken a pill, and the observations which he then made of him, the evidence before the jury was that the appellant's appearance was unremarkable, except that he appeared tired.

28 Mr Morter-Grant did not tell anyone connected with the prosecution or the appellant of this alleged conversation with the appellant or his observation that the appellant appeared affected by ecstasy until 12th February 2003, the day after the commencement of the trial. He had given a statement to the police on 5th August 2001. He was interviewed by the appellant's solicitor on 10th December 2002. He was proofed by the prosecutor on 7th February 2003 prior to giving evidence. On none of these occasions did he mention this conversation with the appellant or his observations of him in the context of ecstasy. He acknowledged that he said to the prosecutor on that occasion, "I did not see him taking ecstasy that night. He did not tell me that he had taken ecstasy that night". His explanation as to why he did not mention his alleged conversation with the appellant about the taking of the pill and his observations of the appellant, to the prosecutor, and presumably earlier, is that he did not want to say those things about the appellant.

29 At the trial, the prosecution called Professor White, who is the Professor of Addiction Studies in the Department of Clinical and Experimental Pharmacology at the University of Adelaide. He is highly qualified having an honours degree in science, a Doctorate of Philosophy in psychology and having undertaken extensive post-doctoral training in pharmacology, which he explained is the study of the effects and actions of drugs. He has also undertaken teaching and research in the area of psychology and with particular reference to the effects and actions of drugs. He holds a position with the Drug and Alcohol Services Council and is the Director of Treatment and Rehabilitation Services with the Council. He has responsibility for three clinics concerned with the treatment of drug dependence and undertakes clinical work. He is a member of the College of Problems of Drug Dependence which is based in North America. The members are researchers in the area of drug dependence. I need not mention all of his other activities in relation to the effects and actions of drugs of dependence as the jury were entitled to regard him as an expert well qualified to express the opinions which were the subject of his evidence. He has contributed to, and kept abreast of, the relevant scientific literature. Professor White was involved in a study concerning the rates of drugs present in the blood of injured drivers of motor vehicles and its relationship to aspects of the crashes in which they were involved. He has also undertaken study as to the adverse effects of ecstasy, particularly in high doses. He described ecstasy as a derivative of amphetamine and has effects similar to those caused by that drug as well as some effects like the drug known as LSD. It is usually available in the form of tablets. The most common dose is 100 milligrams to 150 milligrams of ecstasy.

30 According to Professor White, the effects of ecstasy usually commence after about 20 to 30 minutes of consuming the drug. It is a stimulant. One tablet may produce euphoria, feelings of energy and arousal. The person taking the drug is capable of significant physical exertion and prolonged mental effort so that the person may be able to concentrate for periods of time. There would be suppression of appetite and possibly some increase in libido and feelings of intimacy with others.

31 The effects usually last around four to six hours after which time the effects of the drug decrease to a minimal or zero level. The maximum effect would occur about one to two hours after taking the drug and after about another two hours, the decline in effect would commence. After the drug has worn off, the user may have difficulty in concentrating and problems with memory. The user may have a lower level of arousal than normal. He described this effect after the drug has worn off as "the rebound" effect which, he said, can last for several days so far as lack of concentration is concerned.

32 He also told the jury that if the user was deprived of sleep before taking ecstasy, the drug may reverse the effects of lack of sleep. The rebound effects of ecstasy are similar to the effects of sleep-deprivation. Professor White told the jury that if a sleep-deprived person takes ecstasy, the relevant effect is the two effects adding together. The rebound effect would make the effect of sleep deprivation worse. He went on to say that the major problems for a person suffering the rebound effect in driving a motor vehicle would be difficulty in concentration if the person had to drive for prolonged periods.

33 The evidence of Mr Morter-Grant as to the appellant having told him at about 7.00 am that he had taken a pill and his description of the appellant, as I have described, were put to Professor White. He said that those observations are consistent with the appellant having taken a pill of ecstasy and that if those observations are true, he was experiencing more than a mild effect. He said he would expect those symptoms to be at the peak effect, which, as has been mentioned, was about 30 minutes after taking the pill and lasts for the next four hours. Mr Morter-Grant's observations of the appellant at about 11.00 am on Sunday 3rd June 2001 were then put to Professor White. He said that if he was sleep-deprived from lack of sleep overnight, and the maximum effects of ecstasy had worn off, there may be a relevant effect from the ecstasy as well. The dry lips indicate dehydration which can be an effect of ecstasy and it adds to the problems of sleep deprivation on rebound because dehydration itself induces fatigue. He said the observations indicate that the person is no longer on the peak. Professor White said that these observations indicated that there was no effect of ecstasy in the sense of a peak effect. He said that it was not possible to differentiate between the effects of sleep deprivation alone or the combination of the rebound effect from ecstasy and sleep deprivation.

34 Professor White expressed the opinion that if a person had taken ecstasy at about 6.30 am to 7.00 am, there would be rebound effects at 12.00 noon which would include difficulty in concentrating, lower levels of arousal, memory impairment and possibly impairment in general thinking. Also, he said, that if the person had not slept since 9.00 pm the previous night, there would be significant sleep deprivation. If the person had been involved in physical activity, such as dancing between 5.00 am and 11.00 am, the degree of fatigue would be increased when the effects of ecstasy wears off.

35 I have mentioned this evidence in some detail because of its obvious significance in assessing the condition of the appellant when the collision occurred if he had taken an ecstasy tablet as stated by Mr Morter-Grant.

36 The first contention is that the learned Trial Judge erred in admitting the evidence of Mr Morter-Grant of what he said the appellant had told him about taking a pill and his evidence that he understood the pill was ecstasy and the appellant was suffering the effects of ecstasy. It is submitted by Mrs Shaw QC, who appeared with Mr Allen for the appellant, that the prejudicial value of this evidence outweighed any probative value in respect of which the inability of the appellant to answer the allegation was a critical matter.

37 It must be acknowledged at the outset that the evidence of Mr Morter-Grant as to what the appellant said to him and of his observations of the physical and mental condition of the appellant and his demeanour is plainly admissible. It was relevant as a possible cause of the manner of driving of the appellant when the collision occurred and to offer an explanation for the collision which was consistent with driving in a manner dangerous to the public. Also, I think that in the circumstances the opinion expressed by Mr Morter-Grant that the appellant was affected by ecstasy, whilst not of great weight, was of some weight because of the relationship between the two men, the prior use of ecstasy by them, and Mr Morter-Grant's knowledge and experience of ecstasy. It is not dissimilar to a lay person experienced in the consumption of alcohol and upon observing another person who had been drinking, expressing an opinion that the person appeared to be affected by alcohol. The evidence of Professor White was of more significance as he described the effects of ecstasy and sleep deprivation.

38 The precise reason why it is submitted that the prejudicial effect of the evidence outweighs the probative value is not entirely clear to me. The fact that Mr Morter-Grant may have been affected by ecstasy, cannabis and sleep deprivation, and possibly alcohol, may bear upon the probative value of the evidence, but that was a matter for the jury. As King CJ observed in The Queen v Duke (1979) 22 SASR 46 at 48:

"Generally speaking the fact that the weight to be attached to a piece of evidence is slight does not render its introduction to the jury dangerous. It must be assumed that the jury will give the piece of evidence the weight that it deserves. The danger arises only if there is something in the nature of the evidence or the manner of its presentation which would render it gravely prejudicial in the sense referred to above."

39 It is submitted that as the appellant told the police that he had no memory of the events after the Friday before the collision, he was not in a position to give evidence in answer to the evidence of Mr Morter-Grant. There was no evidence before the jury that at the time of the trial the appellant had no memory of the relevant events, but even if that is so, it is not a ground for the exclusion of the evidence in the exercise of this discretion. Later, I mention other contentions as to the appellant not having given evidence at the trial.

40 There was no error on the part of the learned Trial Judge in admitting this evidence.

41 It is also submitted that the learned Trial Judge erred in directions which he gave to the jury on the topic of whether the accused had taken an ecstasy tablet, even though there is no ground of appeal which is specific to that complaint.

42 He reminded the jury that there was evidence of the appellant having taken or consumed a tablet or pill, commonly referred to as ecstasy, as I have related. He said that he was referring to the evidence of Mr Morter-Grant. He went on to direct them as to the permissible and impermissible purpose of that evidence in the event that they were satisfied that the evidence was accurate and reliable. He said that if the jury were not satisfied as to two matters, that the appellant did take the pill and that it was ecstasy, the directions about propensity evidence could be ignored. He told the jury that if they were satisfied about those two matters, they could not reason that because he was involved in an illicit drug activity, he was guilty of the charges.

43 The complaint is that the learned Trial Judge did not direct the jury that there was no direct evidence that the appellant had taken a pill and a finding that he took an ecstasy pill depended upon the drawing of inferences. The learned Trial Judge should have directed the jury that it was necessary for them to find beyond reasonable doubt:

1 The appellant told Mr Morter-Grant that he had taken a pill.

4 The appellant was under the relevant effects of ecstasy immediately prior to the accident.

5 The rebound effect contributed to the appellant's fatigue.

6 His fatigue was a substantial cause of the accident.

44 It may be seen that when the learned Trial Judge gave the propensity direction, he told the jury that they had to be satisfied that the appellant did take a pill and that it was ecstasy. He reminded them that he was referring to the evidence of Mr Morter-Grant. Later in his summing up, the learned Trial Judge again mentioned the evidence of Mr Morter-Grant and Professor White. He told them that they should only consider the evidence of the latter if first satisfied that the appellant took the pill as Mr Morter-Grant said the accused had told him and that it was ecstasy. He said that if they were not satisfied of those matters, the evidence of Professor White was irrelevant. There can be no doubt that his directions embraced the first three of these matters.

45 The prosecution did not have to prove the cause of the dangerous driving of the appellant if it should be so categorised, only that such driving was a substantial cause of the collision and therefore the deaths and injuries which were alleged. It was sufficient for the prosecution to prove that the driving of the appellant was dangerous in the relevant sense. In my view, it was sufficient to prove that the appellant had driven his motor vehicle on the wrong side of the road at a sweeping bend in the road to his left in the presence of oncoming traffic. However, the prosecution was entitled to lead evidence from which it could be concluded beyond reasonable doubt that the appellant's capacity to drive a motor vehicle was diminished. The position is succinctly stated by Cox J in R v Greenham (1997) 25 MVR 495 at 497-498:

"So what the jury will be looking for in a prosecution under s19a is something potentially dangerous in the manner of driving itself or because of the particular circumstances surrounding the driving. The test in this respect is an objective one; whether the defendant realised that he was driving dangerously is immaterial. If, in the jury's judgment, his driving was dangerous, the next question will be whether it caused the death or bodily harm alleged in the information. It need not have been the sole cause; a substantial cause will do: R v Mayne (1975) 11 SASR 583.

Typically the prosecution will lead evidence about the way the defendant drove his car on the occasion charged, and they may also lead evidence about any impairment of the defendant's physical or mental faculties as tending to explain why he drove as he did. Being affected by alcohol will not in itself amount to dangerous driving, but being unable to exercise effective control of a vehicle because of the amount of alcohol the driver has drunk may well support a finding of dangerous driving. Evidence that a defendant was affected by alcohol will generally be admitted, therefore, as relevant to the issue whether he was driving dangerously: R v McBride [1962] 2 QB 167; Smith v R [1976] WAR 97; R v Leaf-Milham (1987) 47 SASR 499; R v Cornish (1988) 48 SASR 520, 6 MVR 419, Pfeiffer v R (CCA (SA), King CJ, Cox and Olsson JJ, No 680 of 1990, 11 December 1990, unreported). In Pfeiffer, King CJ said:

'To drive a motor vehicle on a road so affected by liquor as to be incapable of exercising effective control of the vehicle is itself driving in a manner dangerous to the public.'

46 It was not necessary for the prosecution to prove the last three of the six matters raised by the appellant but if the jury did reach those conclusions beyond reasonable doubt, a reason for the dangerous driving would be established. The learned Trial Judge reminded the jury of the evidence about those matters. He then said:

"The Crown ask you to infer, from the evidence, that the accused had become inattentive, tired, fatigued or had lost concentration. The Crown case is that the accused was driving in a manner dangerous to the public, because he must have been aware, or ought (as a reasonable, prudent driver) to have been aware that he had become, or was becoming, inattentive or tired, and was at risk of losing concentration but, nevertheless, kept driving and thereby drove in a manner dangerous to the public.

The Crown ask you to draw those inferences, because there is here no direct evidence to that effect. The only direct evidence in this case, about the accused's condition with regard to alertness or otherwise around the relevant time, is that of his then friend and passenger Mr Morter-Grant and Mr Stopp, who said that the accused appeared 'fine' to him at Morphett Vale [sic] some 30 or so minutes, it seems, before the collision occurred - I will come to the evidence later."

"Having regard to the evidence of Mr Morter-Grant that the accused told him at Rise night club that he had consumed a tablet or pill of ecstasy on the Sunday morning, it is necessary that you be directed with regard to that aspect and the evidence of Professor White as to the possible effects of the consumption of that drug upon a driver's ability properly to control a motor vehicle."

47 In my view, those directions were appropriate and this ground of appeal fails.

48 The second ground of appeal is that the learned Trial Judge erred in admitting the evidence of Professor White of his opinions as to the effects of the drug ecstasy.

49 It is submitted that the prosecution case was heavily reliant on the contention that the appellant took an ecstasy pill and that as a consequence of the rebound effect from such a pill, the appellant became extremely fatigued.

50 I do not think that is a correct description of the prosecution case. The case depended primarily upon the circumstances of the accident which have been described and to some extent upon the evidence of Mr Morter-Grant as to the lack of reaction of the appellant to his being on the wrong side of the road approaching a head-on collision.

51 However, Professor White's evidence was relevant for two purposes. If the jury accepted the evidence of Mr Morter-Grant as to his observations of the appellant at the times which have been mentioned, it assisted in proving that the appellant had taken an ecstasy tablet. The second purpose is that it provided to the jury an explanation of the effects of taking an ecstasy tablet at the various times the appellant was observed on the Sunday before the accident. Mrs Shaw referred to Bliss v R (1993) 173 LSJS 255, where I observed that if a finding of guilt of causing grievous bodily harm was based upon intoxication by alcohol, it had to be established that alcohol played a relevant part in the cause of the collision: see also R v Woodward [1995] 2 Cr App R 388 and R v McBride [1962] 2 QB 167. However, in the present case, the evidence of Mr Morter-Grant and Professor White is capable of establishing the amount of the drug consumed by the appellant, if he did take a pill, and its likely effect upon him, and it was for the jury to give due weight to that evidence. If the jury accepted the evidence of Mr Morter-Grant as to his observations of the appellant at various times, the evidence of Professor White, if accepted, could assist the jury in deciding if he had consumed ecstasy as his symptoms were similar to the effects of ecstasy.

52 In my view, the evidence was correctly admitted.

53 It was also submitted that the learned Trial Judge erred in failing to direct the jury that it was necessary for the prosecution to exclude certain hypotheses about which Professor White gave evidence before they could rely upon his evidence about the rebound effect of the drug ecstasy. I have mentioned the evidence of Professor White as to the most common doses of ecstasy in a pill. He did tell the jury that some ecstasy tablets have less than 100 milligrams and some have more than 150 milligrams of the drug but the average tablet has 100 to 150 milligrams. He said that the lesser amount of the drug in the tablet, the lesser the effect, including rebound effect. Also, he said a person's tolerance to the drug is important and effects vary from individual to individual. Experience with the drug may be important. He said that there can be a variation in the rebound effect from individual to individual but the reasons had not been established. However, he said that he expected that the lower the amount of the drug the less the rebound effect may be.

54 The learned Trial Judge did not remind the jury of this evidence. The evidence was given in general terms without reference to the appellant, including any of his physical characteristics. In the circumstances I do not think the failure to remind the jury of this evidence or to give any directions about it is significant. Professor White gave evidence specifically about the appellant on the basis of the evidence of Mr Morter-Grant. The evidence of Professor White in cross-examination, which I have mentioned, did not bear upon those matters

56 The fourth ground of appeal is that the learned Trial Judge erred in his directions to the jury as to the failure of the appellant to give evidence.

57 The learned Trial Judge reminded the jury of the course taken by the appellant at the trial, that is that he did not give evidence, he called his mother and Mr Stopp to give evidence and through his counsel cross-examined the witnesses for the prosecution. Also, in the presentation of his defence, he relied upon the final address of his counsel. The jury were also reminded of his response to the police which I earlier mentioned. The jury were directed that the appellant had exercised his right to silence according to law and no adverse inference could be drawn against him for exercising that right. The learned Trial Judge said that whilst the jury had not had the opportunity of seeing, hearing and assessing the appellant giving evidence and being tested in cross-examination, they must not assume that he was guilty because he did not give evidence. The learned Trial Judge went on to say that there may be reasons for which an accused person elects not to give evidence, to which the jury is not privy, and they should not speculate as to any such reasons.

"The consequence of the failure of the accused here to give evidence is that you do not have any evidence of the accused to explain, add to, vary or contradict the evidence presented against him by the prosecution. You do have the evidence elicited by Mr Cole in cross-examination of the prosecution witnesses, and you also have the evidence of the two witnesses called by the accused. You should have regard to all of the evidence, both oral and the exhibits, in considering whether the separately alleged offences have or have not here been established.

You also have the accused's limited answers to questions in the record of interview with the police officer in September 2001, to which answers you should give such weight or value as you see fit, bearing in mind that you did not have the opportunity to assess the demeanour of the accused when giving those answers."

59 The complaint is that the learned Trial Judge did not direct the jury as to the significance of the evidence as to the appellant's loss of memory.

60 The only evidence about loss of memory is what the appellant told the police and the learned Trial Judge specifically reminded the judge of that evidence.

61 Facts admitted at the trial included the nature of the injuries sustained in the collision and features of the appellant's treatment, including extensive fractures of his pelvis, a broken left hand, lacerations to the liver and spleen, a collapsed lung and a severe closed head injury. As has been mentioned, his mother told the jury that he was in a coma for two weeks.

62 Also, as has been mentioned, Mr Stopp said that he saw the appellant at the service station. In cross-examination he told the jury that shortly before the trial he had a conversation with the appellant. He asked him if it was the day of the collision that he had seen him and the appellant said that he did not know.

63 None of this evidence establishes that the appellant did not have any memory of the collision or the events of that weekend. The appellant did not give evidence and say that he had no memory. He did not call medical or other expert evidence regarding his memory and the possible effect his injuries could have had on his memory. His statement to the police, if accepted as a reasonable possibility, related to the state of his memory at that time. His statement to Mr Stopp is equivocal. This is not a case where loss of memory is proved or shown to be a reasonable possibility on the evidence.

64 It was submitted that during the trial defence counsel had asserted, in the absence of the jury, that he could not obtain instructions regarding the new statement by Mr Morter-Grant due to the appellant's loss of memory which assertion was not challenged by the prosecutor. There was no reason that the prosecutor would challenge such an assertion in that context and it is not evidence of lack of memory.

65 The medical notes from the hospital where the appellant was treated did not contain any medical opinion as to whether the appellant was suffering from amnesia.

66 It may be seen that the learned Trial Judge did not make any adverse observations about the appellant's failure to give evidence or give a direction to the effect that the prosecution case could be more readily accepted for that reason. We were referred to a number of cases where a comment of that nature was made but I do not regard them as of any assistance in the present case.

67 As I understand the complaints made by the appellant, the learned trial Judge erred in not directing the jury that if the prosecution failed to exclude memory loss as a reasonable possibility, it provided an explanation for his failure to give evidence. It was submitted that the judge was required to direct the jury that the appellant was unable to answer allegations through no fault of his own and that he suffered forensic disadvantages which required the jury to examine the prosecution evidence with those matters in mind.

68 Clearly there are cases where the accused has suffered a genuine loss of memory and the jury must be directed to take that matter into consideration carefully, eg Broadhurst v The Queen [1964] AC 441 at 459, R v Richards (1994-1995) 77 A Crim R 1 and R v Singh [2003] SASC 344 at paras 135-137. However, that is not the present case. As I have mentioned, loss of memory is not established even as a reasonable possibility. Even if it was, the directions of the learned Trial Judge were adequate. The cause of the alleged dangerous driving is not an element of the charge.

70 I turn to the sixth ground of appeal which is that the learned Trial Judge erred in failing to warn the jury as to the dangers of acting upon the evidence of Mr Morter-Grant.

71 The submission of the appellant expressed in brief terms is that because Mr Morter-Grant said that he took ecstasy during the night before the collision, he had smoked cannabis at Victor Harbor and at the party at Goolwa, consumed amphetamine at the party at Goolwa, consumed some alcohol and an ecstasy tablet at the nightclub, a warning should have been given to the jury in suitable terms of the dangers of acting upon his evidence. Mr Johnston told the jury that Mr Morter-Grant appeared affected by drugs or alcohol at the nightclub. It is also submitted that the failure by Mr Morter-Grant to tell the police, the appellant's solicitor and the prosecutor before the trial that the appellant had taken ecstasy is a reason to give the warning. There is inconsistency between the evidence of Mr Morter-Grant and the evidence of Mr Johnston as to the condition of the appellant at relevant times. The appellant submits this is another reason for a warning to be given. However, I mention that Mr Johnston told the jury that by 10.00 am to 10.30 am on the day of the collision Mr Morter-Grant appeared normal. Mr Johnston also gave evidence that he could not tell if the appellant appeared affected by drugs or alcohol but he went on to say that he knew Mr Morter-Grant better than he knew the appellant.

72 The learned Trial Judge did not give a warning as the appellant suggests should have been given and did not direct the jury to approach Mr Morter-Grant's evidence with caution. I briefly summarise the directions which he gave about Mr Morter-Grant.

73 He gave a typical direction about the assessment of witnesses which was unexceptional, including the need to assess any discrepancies between the evidence of a witness and other evidence. He directed the jury as to the significance of inconsistent statements of a witness and mentioned Mr Morter-Grant as an example and mentioned inconsistencies between his evidence and statements made by him before the trial. He reminded them of the evidence of Mr Morter-Grant as to the drugs he had consumed, including that at 4.30 am or 5.30 am he was affected by the ecstasy tablet which he had taken. He reminded them of the conflict in the evidence of Mr Morter-Grant and Mr Johnston as to who drove the latter's car to Mr Johnston's house. Also, he reminded them of Mr Morter-Grant's evidence of how he was feeling at various times.

74 Mr Morter-Grant was not a witness in a special category which required a warning to the jury that it was dangerous to convict the appellant on his uncorroborated evidence such as the evidence of an accomplice. However, as was acknowledged in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 the law requires that an appropriate warning be given whenever it is necessary to avoid "a perceptible risk of miscarriage of justice arising from the circumstances of the case: Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315 at 319, 323-325 and Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314 at 330", per Brennan, Dawson and Toohey JJ at 86, see also Deane J at 95-96 and McHugh J at 107.

75 It was submitted that Mr Morter-Grant was a critical witness in the prosecution case. I do not agree. His evidence about the appellant's lack of reaction to being on the wrong side of the road was important. If accepted, it was capable of showing that the appellant had lost concentration in his driving at that time, but there was the other evidence which I have mentioned as to the circumstances of the collision which justified a finding of driving in a manner dangerous to the public. The evidence does not suggest that Mr Morter-Grant was affected by a drug at this time as could cause his evidence to be suspect for that reason. His evidence about the appellant's statement to him that he had taken a pill and as to his observations of the appellant at that time and later in the morning should be regarded differently because of the real possibility that he was affected by drugs at the time. However, as I have said, the cause of the appellant's fatigue was not a critical, or even important part of the case, and he is likely to have been tried or fatigued shortly before the collision even without taking ecstasy.

76 The significance of Mr Morter-Grant having taken drugs would have been apparent to the jury. Also, the evidence of Mr Johnston was that by 10.00 am to 10.30 am, Mr Morter-Grant appeared to be normal. The learned Trial Judge directed the jury appropriately as to the relevance of prior inconsistent statements and mentioned Mr Morter-Grant's failure at any time before the trial to mention the appellant saying he had taken a pill, as an example. His direction was to the effect that inconsistencies may affect the accuracy and reliability of the evidence of a witness. He reminded the jury of the evidence of the drugs taken by Mr Morter-Grant and when he took them. Also, he directed the jury that they had to be satisfied that the evidence of Mr Morter-Grant was accurate and reliable before they could make any finding that the appellant took ecstasy.

77 As was made clear by Gibbs CJ in Bromley, where the evidence of a witness is potentially unreliable, the jury must be made aware of the dangers of convicting on that evidence and in a case where the jury may not understand that the evidence of the witness is potentially unreliable, it should be explained to the jury why that is so. However, in the same case Brennan J made the observation that if the danger of convicting on the evidence of a witness "is so obvious that the jury are fully alive to it without a warning, no warning need be given: 324". In the present case the jury would have been well aware in a general sense of any potential unreliability because the reason was intoxication and there was no evidence from Professor White or anyone else as to any added reason for unreliability due to the consumption of ecstasy.

78 I do not think any further directions were required, including in the nature of a warning.

80 The appellant complains that the trial miscarried because the prosecutor, in her address, commented upon the failure of the appellant to give evidence on three occasions.

81 Section 18(1) II of the Evidence Act 1929 provides:

"The failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution."

82 During her address, the prosecutor submitted to the jury that there were three matters which established the appellant's guilt of driving in a manner dangerous to the public: first, that the appellant was driving on the wrong side of the road, secondly, that he was doing so into the path of an oncoming vehicle and, thirdly, that he did so when overly fatigued. She addressed the jury on each of those matters separately. After completing her submissions on the first and second matters, she said that each of them when considered separately constituted dangerous driving and all the more so when considered together. She said the jury could stop there and find the appellant guilty. She then moved to the third matter and I set out this part of her address in full during which it is said the first two comments were made:

"Of course, there's more in this case, and I come to my third factor. That's fatigue. That, I suggest, is really the explanation for what occurred in this case, for the dangerous driving that I have referred to already. The Crown doesn't have to provide an explanation, but in this case the driving in a fatigued condition can also be dangerous in itself. I suggest at the time of the collision the accused was so fatigued that it was objectively dangerous for him to be driving. Put that together with the other two factors I have mentioned and they all add up to an overwhelming case, I'd suggest, of dangerous driving.

Of course, it's a matter for you to find as a matter of fact how tired the accused was at the time of the collision. He's not given evidence. That's his right. He does not have to prove anything. That is the case in all criminal trials, his Honour will tell you; an accused person is presumed innocent until proven guilty by the prosecution beyond reasonable doubt. The onus always rests on the prosecution and you can't draw any inference adverse to him for not giving evidence. It's his right.

He told the police back in September of 2001 that he could not remember anything past the Friday night. It's a matter for you as to what weight you put on that. Remember, it was said back in September of 2001. There's no evidence about what he can remember now.

Why I said that is because despite that, there is plenty of other evidence in this case from which you can infer that he was extremely fatigued at the time of the collision. As I've said, the prosecution case is not that he was so fatigued that he fell asleep; that's clearly not the case from Phree Morter-Grant's evidence." (my emphasis)

She then reminded the jury of Mr Morter-Grant's evidence of his observations of the appellant shortly before the collision. I have earlier mentioned this evidence.

83 Later in her address the prosecution reminded the jury of Mr Morter-Grant's evidence relating to whether the appellant had taken an ecstasy tablet. I mention one part of her address during which it is said she made the third comment:

"Phree told you of the conversation he had with the accused at the Rise nightclub around dawn. He saw the accused coming out. He said to the accused 'You look off tap; you look all messy, what have you had?' The accused said he had a pill and you know they had previously spoken about ecstasy, 'a pill' meant ecstasy and there was no evidence to the contrary." (my emphasis)

84 It is submitted that these submissions to the jury are comments and are in breach of the statute.

85 The first question is whether in either instance the prosecutor made a relevant comment. On the first occasion she said that the appellant had not given evidence.

86 In Bataillard v The King (1907) 4 CLR Pt 2 1282 the Court was concerned with a statutory prohibition of comment. In that case the prosecutor said that an accused had "refrained" from giving evidence on oath on his own behalf. Griffiths CJ, at 1288, expressed the view that the term "refrain" imports two ideas - opportunity to give evidence on oath and failure to take advantage of that opportunity. Isaacs J said at 1291:

"If, however, reference, direct or indirect, and either by express words or the most subtle allusion, and however much wrapped up, is made to the fact that the prisoner had the power or right to give evidence on oath, and yet failed to give, or in other words, 'refrained from giving', evidence on oath, there would be a contravention of the sub-section now under consideration. The question whether the law has been so contravened must depend in each case on the words used and the circumstances in which they are used."

87 In Siebel v The Queen (1992) 57 SASR 558 King CJ, with whom Bollen J agreed, said at 561:

"....... that any words which refer to the fact that an accused person has not given evidence or has not contradicted prosecution evidence or has not put forward an alternative version of events, is necessarily comment upon the failure of the accused person to give evidence."

"It is lawful, in my opinion, for counsel for the prosecution to make the point to the jury that the only version of the facts before them is that proved by the prosecution witnesses and, if counsel for the defence has engaged in speculation as to alternative scenarios, that there is no evidence to support such alternative scenarios. Any comment, however, that the accused person has failed to contradict prosecution witnesses or to provide an alternative version of events, or that he has not given evidence, must, in my opinion, amount to a prohibited comment.

.........

The comments made by counsel for the prosecution might quite justifiably have been made by the trial judge, but it is to be remembered that what is forbidden to the prosecution is any comment on the failure to give evidence, whether that comment is fair or unfair, balanced or unbalanced, favourable or unfavourable. The policy of the statute is to leave the decision as to what, if any, comment is to be made upon the failure to give evidence to the impartial judgment of the trial judge."

Even though the prosecutor made it clear to the jury that the appellant had told the police that he could not remember anything after the Friday before the accident, she did go on to say that there was no evidence about what he could remember at the time of the trial. I think that both the first submission by the prosecutor that the appellant had not given evidence and the second submission that there was no evidence about what the appellant could remember at the time of the trial were comments which are forbidden by the statute.

88 Also, I think the third submission by the prosecutor amounted to a prohibited comment. To say that there was no evidence to the contrary of Mr Morter-Grant's evidence about the appellant having said that he had taken a pill, necessarily was a reference to the appellant not having given evidence. Mr Johnston, who was called by the prosecution did not give evidence about this incident, but there was no evidence to suggest that he was, or could have been, present when the alleged conversation occurred. There was no other person who could have given evidence that the conversation did or did not occur. Consequently, the submission by the prosecutor to the jury that there was no evidence to the contrary in the context of the trial, meant that the appellant had not given evidence about the matter. I think it amounts to a prohibited comment for the same reason as I have expressed regarding the first and second comments.

90 It remains to consider whether it can be said that no substantial miscarriage of justice has occurred and that the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 should be applied.

91 I have mentioned the directions which the learned Trial Judge gave to the jury about the appellant not having given evidence. They were appropriate and sufficient directions. The learned Trial Judge did what the prosecutor told the jury he would do and he also gave necessary additional directions. For that reason I think an effect of those directions is that the prohibited comments made by the prosecutor were reduced to insignificance: see Siebel at 563.

92 Furthermore, the comments made by the prosecutor related to a matter which the prosecution did not have to prove, namely the reason for the dangerous driving. It was clearly established by other evidence that shortly before the collision the appellant drove his motor vehicle on the wrong side of the road into the path of the oncoming vehicle driven by Ms Walford. He had a clear view of her vehicle as it proceeded around the sweeping bend in sufficient time to react so as to avoid the collision. Why he did not do so is not an essential element of the charge.

93 Even without the evidence of Mr Morter-Grant about his conversation with the appellant about the pill, the evidence was capable of establishing fatigue on the part of the appellant. It seems clear on the evidence that he had not had any sleep since the early hours on the night before the collision when he met up with Mr Morter-Grant. If he did have any sleep it was only for a brief time in the City of Adelaide in the early hours of the morning of the collision. Mr Johnston and Mr Morter-Grant gave evidence that the appellant was tired an hour or so before the collision which is to be expected. The taking of an ecstasy tablet could have exacerbated his tiredness or fatigue but not necessarily so.

94 In my view, the evidence as to the circumstances of the collision clearly established that shortly before the collision the appellant drove in a manner dangerous to the public even without consideration of the evidence of Mr Morter-Grant. His evidence as to the demeanour of the appellant when on the wrong side of the road merely adds to the conclusion that he was driving in a manner dangerous to the public.

95 In my view, the proviso should be applied and I would dismiss the appeal.

96 BESANKO J In this matter a Judge of this Court granted leave to appeal in relation to five grounds of appeal. For the reasons given by Mullighan J, I agree that the challenges to the trial Judge's rulings and directions as set out in grounds 1, 2, 4 and 6 of the Grounds of Appeal must fail.

97 I add some observations of my own in relation to ground 9 that the trial miscarried as a result of the prosecutor commenting in her final address on the failure of the appellant to give evidence. Section 18(1) II of the Evidence Act 1929 provides as follows:

"The failure of any person charged with an offence to give evidence shall not be the subject of any comment by the prosecution."

98 In his reasons for judgment Mullighan J sets out the three statements made by the prosecutor in the course of her closing address which the appellant submits contravened s 18(1)II of the Evidence Act. He also sets out the relevant authorities.

99 In my opinion, the first comment by the prosecutor was a comment on the failure of the appellant to give evidence. The prosecutor said that the appellant had not given evidence on a matter he might have, namely, how tired he was feeling at the time of the accident. The prosecutor went on to say that the appellant had the right not to give evidence. It would have been clear to the jury that the appellant could have given evidence if he chose to do so. In light of the authorities referred to by Mullighan J (Bataillard v The King [1907] ArgusLawRp 65; (1907) 4 CLR 1282; Siebel v The Queen (1992) 57 SASR 558) the first comment was a comment prohibited by s 18(1)II. I would add that I do not think the first comment by the prosecutor was an unfair or an unbalanced one. However, the subsection applies whether the comment is fair or unfair, balanced or unbalanced. In Siebel v The Queen, King CJ (with whom Bollen J agreed) said (at 562):

"The comments made by counsel for the prosecution might quite justifiably have been made by the trial judge, but it is to be remembered that what is forbidden to the prosecution is any comment on the failure to give evidence, whether that comment is fair or unfair, balanced or unbalanced, favourable or unfavourable. The policy of the statute is to leave the decision as to what, if any, comment is to be made upon the failure to give evidence to the impartial judgement of the trial judge."

100 I do not think the second and third comments were comments prohibited by the subsection. In another important passage in Siebel v The Queen, King CJ said (at 562)

"It is lawful, in my opinion, for counsel for the prosecution to make the point to the jury that the only version of the facts before them is that proved by the prosecution witnesses and, if counsel for the defence has engaged in speculation as to alternative scenarios, that there is no evidence to support such alternative scenarios. Any comment, however, that the accused person has failed to contradict prosecution witnesses or to provide an alternative version of events, or that he has not given evidence, must, in my opinion, amount to a prohibited comment."

101 In making the third comment the prosecutor was doing no more than pointing out that the only version of the facts before them as to the meaning of "a pill" was that given by a prosecution witness. In my opinion, that is not a prohibited comment.

102 The second comment is borderline in terms of whether it falls within the subsection as no witness called by the prosecution had given evidence of what the appellant could remember at particular times and the most obvious person who could have given evidence on that topic was the appellant. However, I do not think that a statement to the effect that the appellant's statement to the police in September 2001 that he could not remember anything beyond the Friday night relates to his memory at that time is a comment by the prosecution about the appellant's failure to give evidence. Furthermore, it seems to me to be too artificial to say that an express statement of what is clearly implied by the statement, namely, that there is no evidence of what the appellant could remember at the time of the trial brings the prosecutor's comment within the terms of the section.

103 The first comment by the prosecution infringed the statutory prohibition and the complaint in ground 9 of the Grounds of Appeal has been made good. However, for the reasons given by Mullighan J, this is an appropriate case for the application of the proviso and the appeal should be dismissed.