R v Bozzola

COUNSEL : H Dhanji - Appellant LMB Lamprati - Crown SOLICITORS : DJ Humphreys - Appellant SE O'Connor - Crown CATCHWORDS : Proviso to s6 of the Crimes Act DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60222/0l GILES JA JAMES J HULME J

Tuesday 6 March 2001 REGINA v Peter Anthony BOZZOLA

1 GILES JA. I agree with James J. 2 JAMES J: This is an appeal by Peter Anthony Bozzola against his conviction, after a trial in the District Court before his Honour Judge Christie and a jury, on two charges under s52A of the Crimes Act, that on 30 May 1995 near Narrabri he was driving a vehicle (which was a Mack Prime Mover), when it was involved in an impact which occasioned the death of James Lindsay Dovey (the first count in the indictment) and grievous bodily harm to Laura Edith Dovey (the second count in the indictment), the appellant at the time of the impact driving his vehicle in a dangerous manner. 3 Although it was alleged that the offences had been committed on 30 May 1995, the trial did not take place until February last year. After the jury had returned its verdicts of guilty on 16 February, no application was made to continue the appellant's bail and the appellant went into custody on 16 February 2000. On 4 May 2000 Judge Christie sentenced the appellant on the first count in the indictment to a term of imprisonment for two years, with a minimum term of one year commencing on 16 February 2000 and expiring on 15 February 2001 and on the second count in the indictment to a fixed term of imprisonment of six months commencing on 16 February 2000. 4 At the trial there was no dispute that at about 2.30 in the afternoon of 30 May 1995 the truck which the appellant was driving in a northerly direction on the Newell Highway between Coonabarabran and Narrabri ran into the back of a stationary, or almost stationary, Kenworth truck which was being driven by a Mr Smith. Mr Smith had stopped his truck just before some road works on the Highway. Another vehicle, a car, had stopped at the road works in front of Mr Smith's truck. A car, which was being driven by the male victim and in which the female victim was a passenger and which had been travelling in a northerly direction on the Highway, ran into the back of the appellant's truck. The male victim was killed instantly and the female victim was seriously injured. 5 At the trial the appellant made formal admissions of a number of the elements of the offences charged, so that the only element of each offence which was left in issue was whether at the time of the impact the appellant had been driving his vehicle in a dangerous manner. The jury were also required to determine whether the appellant had established a defence under ss(8) of s52A, that the death or grievous bodily harm occasioned by the impact was not in any way attributable to the manner in which the appellant had been driving his vehicle.

The Evidence in the Crown Case 6 A large number of witnesses gave evidence in the Crown case. I will briefly summarise some of the evidence of these witnesses. 7 Andrew Klaasen gave evidence that he had been driving a truck in a southerly direction on the Newell Highway, that is in the opposite direction to that in which the appellant had been driving. Where the road works were, only one side of the Highway was open to traffic (the south bound lane). As Mr Klaasen proceeded slowly in the south bound lane past the road works, he noticed a car and a truck (that is the Kenworth truck driven by Mr Smith) in the north bound lane just south of the road works. The car and the truck had been stopped by an R.T.A employee with a stop/go sign. This employee was sometimes referred to in the evidence at the trial as "the lollipop man". After Mr Klaasen had completed passing the road works, the lollipop man reversed the stop/go sign and the car which had been stationary in the north bound lane moved off. 8 Mr Klaasen saw the appellant's truck, which was travelling in a northerly direction at a speed estimated by Mr Klaasen to be 90-100 kilometres per hour, veer out about one foot on to its incorrect side of the roadway. Mr Klaasen saw the appellant look at him (Mr Klaasen) and the appellant's truck then moved back on to its correct side of the roadway. At that point, the appellant's truck was about ten metres behind the rear of the Kenworth truck. A Commodore sedan (the victims' vehicle) was about thirty to thirty-five metres behind the appellant's truck. The appellant's truck ran into the rear of the stationary (or almost stationary) Kenworth truck. The nose of the Commodore sedan pitched, as if the brakes were being heavily applied, and the Commodore crashed into the rear of the appellant's truck. 9 Mr Peter Smith gave evidence that he had been the driver of the Kenworth truck. Mr Smith had been driving his truck in a northerly direction on the Highway. As Mr Smith had approached the area of the road works from the south, he had noticed four or five R.T.A signs warning of the road works, beginning with a sign about two to three kilometres from the road works and ending with a sign about 500 metres from the road works. Mr Smith had had no difficulty in seeing the warning signs and had slowed down. He had been able to see the road works, when he was at the top of a hill about one and a half kilometres south of the commencement of the works. Upon reaching the vicinity of the road works he stopped his truck about ten metres behind the car in front of him and his truck remained stationary for about two minutes. 10 While his truck was stationary, Mr Smith noticed the appellant's truck, in the rear vision mirror of his vehicle, when the appellant's truck was about two kilometres away. Mr Smith estimated that the appellant's truck was travelling at about 100 kilometres an hour. The appellant's truck did not slow down as it approached Mr Smith's truck and the road works. Mr Smith tried, unsuccessfully, to contact the appellant on his truck radio. 11 The appellant's truck "put out his nose a bit", that is moved out slightly to its right, as if to overtake Mr Smith's vehicle, and then moved back in, apparently because of the oncoming truck driven by Mr Klaasen. The appellant's truck ran into the back of Mr Smith's truck and Mr Smith's truck was shunted about twenty-five to thirty metres by the force of the impact. After the collision Mr Smith observed the appellant collect some items, including his log book, from the cabin of his truck. 12 Mr Colin Wiggins gave evidence that he had been the driver of the car which had stopped at the road works in front of Mr Smith's truck. The section of the Highway to the south of the road works was a long, straight section. The 30 May 1995 was a dry, clear day. Mr Wiggins had seen the road works, when he was a kilometre or more from them. Mr Wiggins was unable to say whether there had been any signs on the Highway warning of the road works. 13 At the trial a large number of R.T.A employees gave evidence to the effect that signs warning of the road works had been in position along the Highway to the south of the road works, before the collision happened. On the other hand, some defence services personnel gave evidence in the Crown case that on 30 May 1995 they had been travelling in a coach in a northerly direction on the Newell Highway, some distance behind the appellant's truck, and had not noticed any warning signs. 14 Detective Peter Ryan, who was attached to a police crash investigation unit and who was the officer in charge of the police investigation into the collision, gave evidence that he had attended the scene of the collision on the afternoon of 30 May, arriving at about 4 o'clock. 15 Detective Ryan measured skid marks on the roadway at the scene of the collision. He said that the victims' vehicle had made skid marks measuring 18.3 metres in length and that the appellant's truck had made skid marks measuring 10.9 metres in length. Detective Ryan expressed the opinion that the appellant's truck had been travelling at a speed of 100 kilometres per hour and had gone from that speed to being stationary (immediately after the impact of the appellant's truck with Mr Smith's truck) within a distance of only 10.9 metres. 16 Detective Ryan also gave evidence that, if the victims' car had been travelling behind the appellant's truck at what is regarded by various motoring bodies as a safe distance, being "a 2 second gap", which in the case of a following vehicle travelling at 100 kilometres per hour is fifty-six metres behind the vehicle in front of it, the victims' car would still have collided with the appellant's truck, having regard to the suddenness with which the appellant's truck had come to a halt. 17 Detective Ryan drove in the same direction as that in which the appellant had driven and saw five R.T.A signs at various points warning of the road works. 18 At 6.30pm on 30 May 1995 a sample of the appellant's blood was taken and this sample was submitted for analysis. An analysis showed that there were present in the appellant's blood certain quantities of Delta 9 THC (a metabolic product of Tetrahydrocannabinol, which is the major drug in cannabis) methylamphetamine, amphetamine and ephedrine. 19 On the basis of the analysis of the sample of the appellant's blood and certain information provided about the accident, a pharmacologist Dr Pearl expressed the following opinion:- "I am of the opinion that at the time of driving (the appellant) was under the influence of methamphetamine and ephedrine and most likely also cannabis, to the extent that his driving ability would have been impaired". 20 Dr Pearl explained in her evidence that the taking of drugs of the types found in the sample of the appellant's blood can initially mask the effects of driver fatigue but that, when the masking effect wears off, the driver experiences, in addition to the fatigue already present which is no longer being masked by the drugs, a drug induced fatigue and that the driver would experience drowsiness, a slowing of reactions and impairment of perception and judgment. 21 The Crown adduced a body of evidence about the movements of the appellant in the period leading up to the collision. 22 The pages in the appellant's log book for 29 and 30 May 1995 were admitted into evidence. According to the entries made by the appellant appearing on those pages, the appellant had left Melbourne at 7am on 29 May, had taken rest breaks at Yarrawonga in Victoria from 10.30am to noon, at West Wyalong in New South Wales from 2.30pm to 3.30pm and at Dubbo from 6.30pm to 7pm, had arrived at the township of Collie at 8pm on 29 May and had not left Collie until 11am on 30 May. There were bloodstains, not only on the page of the log book for 30 May, but also on the page of the log book for 29 May. 23 The Crown adduced other evidence for the purpose of showing that these entries made by the appellant in his log book were false. 24 Mr Spencer Harding, an employee of a fertiliser company at Geelong in Victoria, produced a dispatch document, indicating that the appellant's truck, having been loaded with fertiliser, had left the fertiliser company's premises in Geelong in Victoria no earlier than 3.11pm on 29 May, when, according to the entries in the appellant's log book, the appellant was resting at West Wyalong in New South Wales. 25 Mr Richard Mears, a farmer with a property near Collie, who had ordered the fertiliser which was being carried on the appellant's truck, gave evidence that he had received a telephone call at about 8pm on 29 May, in which a truck driver, who he could not definitely specify as having been the appellant, had told him that he would be delivering the fertiliser which Mr Mears had ordered, at 9am the next morning. In the course of the conversation the truck driver had said that he was then passing through Shepparton in Victoria. 26 Mr Andrew Burgess, an employee of Mr Mears, gave evidence that he had taken delivery of a load of fertiliser at Mr Mears' farm. The truck carrying the fertiliser had arrived at about 11.30am on 30 May and had not left the farm before 12.30. 27 At the trial the appellant made formal admissions pursuant to s184 of the Evidence Act that he had placed calls on a mobile telephone in the vicinity of Altona North in Victoria at 3.55pm on 29 May, in the vicinity of Yarrawonga in Victoria at 12.46am on 30 May, in the vicinity of Narrandera in New South Wales at 2.41am on 30 May and in the vicinity of Parkes in New South Wales at 7.19am on 30 May. 28 Evidence was given that the approximate distance by road from Melbourne to the scene of the collision is 1098 kilometres. Geelong is to the south-west of Melbourne and hence the distance from Geelong to the scene of the collision would be more than 1098 kilometres. Altona North from the vicinity of which the appellant had placed one of his mobile telephone calls is close to Geelong. 29 Detective Ryan spoke to the appellant on 31 May 1995 as part of the investigation. When asked by Detective Ryan how the accident had occurred, the appellant said "I haven't really got any memory of the accident. I belted my head on something, don't know. The truck was on cruise control with the music going and the next thing there was a truck just parked on the road, so I wheeled out to go around him. There was a truck coming the other way, so I wheeled it back in and then nothing. I woke up with blokes looking in the window at me". 30 The appellant was formally interviewed in an electronically recorded interview on 31 May. 31 In answers in the interview the appellant said that he had picked up a load of fertiliser from Melbourne on 29 May, had stopped at Collie in his truck on the night of 29 May and had delivered the fertiliser on the morning of 30 May. These answers were in accordance with the entries made in his log book. 32 When asked in the interview what stops he had made, the appellant, proceeding backwards, said, "I think I had an hour at Dubbo. I think I had a couple of hours at West Wyalong, I think, Yarrawonga, then I think just Melbourne". Later in the interview, when asked what sleep he had had, the appellant said, "I pulled up at Collie and I reckon I had - oh, it would have been ten to eleven, eleven hours there for sure and I had slept in Melbourne". The appellant said that he had got into Collie at 8 o'clock on the night of 29 May. These answers were in accordance with the entries the appellant had made in his log book. 33 When asked in the interview whether he had any memory of the events leading up to the accident, the appellant said "not really, no". He gave a similar account in the interview to the account he had given in the conversation with Detective Ryan which had preceded the interview. He said that he had been coming up to the back of a parked truck, he had steered out, there was a truck coming the other way and he had steered back in. He had been travelling at 100 kilometres per hour, with the cruise control mechanism on. 34 The appellant said in the interview that he had no recollection of whether he had seen signs, warning north bound traffic of the road works. He was not sure whether he had applied the brakes of his truck before the collision. 35 The appellant said that after the accident he had taken his log book out of the cabin of the truck "(be)cause they could smell diesel or something". He denied having made any entry in the log book, after the collision and before he left the cabin of the truck. He agreed that there was blood on the pages of the log book for both 29 May and 30 May. The presence of blood on the page of the log book for 29 May was, of course, relied on by the Crown as evidence that he had made the entries on that page after the collision happened. 36 In the interview the appellant was asked "do you take any drugs" and he replied "no". 37 The Crown relied on the assertions made by the appellant in the entries in the log book and in the answers in the interview about his travel movements and the rest periods he had taken and that he did not take drugs, as being lies told out of a consciousness of guilt.

The Defence Case at the Trial 38 The appellant did not give evidence at the trial. 39 The only witness called in the defence case at the trial was Mr Robert Casey, a consulting engineer. Mr Casey had not inspected the scene of the collision and based his evidence on an examination he had made of photographs and diagrams. Mr Casey disagreed with some of Detective Ryan's interpretations of the tyre marks Detective Ryan had observed on the roadway. Mr Casey expressed the opinion that the victims' vehicle had been only 6.8 metres behind the appellant's truck, when the brakes of the victims' vehicle were first applied. Mr Casey also expressed the opinion that part of the tyre mark left by the appellant's truck, which Detective Ryan had referred to as a deceleration mark, indicated that the appellant had lightly touched the brakes of his vehicle before the collision. However, Mr Casey accepted that there had been no significant lessening of the speed of the appellant's truck before the impact. 40 The only ground of appeal against conviction which was relied on was:-

His Honour contravened s20(2) of the Evidence Act in the directions he gave the jury concerning the appellant's failure to give evidence. 41 In a break in the summing-up there was some discussion between the trial judge and counsel, in the absence of the jury, about whether the trial judge should give a "Jones v Dunkel" direction about the failure of the appellant to give evidence. In this discussion brief reference was made to s20 of the Evidence Act and to the decision of the High Court in RPS v The Queen which is reported at 74 ALJR 449. His Honour concluded that he would give the jury directions to the effect that, the appellant not having given evidence, the jury might more readily accept prosecution evidence in relation to matters of which the appellant would have had first hand knowledge and his Honour listed as such matters "his travel movements, his drug taking, his rest times and his motivation to lie". 42 After he had resumed summing-up, the trial judge told the jury that the appellant had not given evidence at the trial; that the appellant had been interviewed by police on the day of the collision and that evidence of the interview was before the jury; and that it had been submitted on behalf of the appellant that in the interview the appellant had told the police all he could remember about the collision. The trial judge then told the jury that, because the appellant had not given evidence, there were a number of directions he was required to give the jury. 43 The trial judge began by telling the jury that an accused person may give evidence in a criminal trial but is not obliged to do so and is entitled to remain silent. On the hearing of this appeal no complaint was made about any of those directions. However, the trial judge proceeded to say to the jury:- "You may however, as a matter of common sense and in accordance with the law, you may take the view that where a fact is disputed between the Crown and the Accused and the Accused is in a particular position to respond or deny any particular assertion by the Crown, then you may as a matter of law more readily accept that evidence of the Crown as being truthful in the absence of the Accused having elected to respond to matters about which you would expect him to have first hand knowledge. Now those matters in this particular trial, not exhaustively but probably, include the following. Indeed I tell you as a matter of law they do include the following. His movements on the day and the night before the event and the morning thereof. The rest periods he took, if any, during that time. The question of whether he took any drugs and, if so, what and how much. Finally, but possibly not exhaustively, any reason he might advance for having told the police a number of untruths. Now they are matters about which you would expect the Accused to have first hand knowledge. The Crown, of course, have led evidence about all of those matters and I tell you as a matter of law that you would more readily, if you wish, accept the Crown evidence, it having not been the subject of any denial by the Accused, at least in regards to those matters to which I have just alluded". 44 His Honour then referred to the log book entries and some answers given by the appellant in the interview which I have summarised earlier in this judgment and his Honour compared what the appellant had asserted in the log book entries and in his answers in the interview with the formal admissions the appellant had made at the trial about the mobile telephone calls he had placed and evidence of calculations of distances between various places in Victoria and New South Wales through which the appellant had passed on 29 or 30 May. 45 His Honour told the jury that they could conclude that the appellant had been telling lies in the entries he had made in the log book and in some of the answers he had given when he was interviewed. His Honour then gave the jury directions about the circumstances in which the telling of lies by an accused person may be used in aid of other evidence in the Crown case as pointing to the guilt of the accused. 46 Towards the end of the summing-up the trial judge told the jury:- "Finally may I say this because it has loomed fairly importantly in this case and certainly has loomed with some importance in what I have said to you concerning what you might perceive to be lies by the Accused. You cannot use those lies as an admission of guilt. You can use those lies if you find they were deliberate lies and related to a material issue and told to avoid detection in relation to this matter. If you find all those things you can use those lies to more readily accept the contrary evidence led by the Crown as being the more likely scenario. Now similarly the Accused having elected not to give evidence about matters which you may feel were within his personal knowledge. Certainly about his movements the day before, certainly about his drug taking, certainly about the fibs he told the police. You may use that information if you take it to be a reluctance to respond to those matters. You may take that factor as being a circumstance which leads you to more readily accept the evidence given by the Crown witnesses in relation to those issues. That is perhaps particularly Judith Pearl as to the effect of those substances upon him. And bear in mind this, that to various witnesses including Judith Pearl, was put various scenarios. I suggest to you that if he took such and such on the Saturday morning or such and such on Sunday afternoon, or whatever, and it was in relation to some such scenarios that Judith Pearl was persuaded to modify her view slightly in relation to some matters. But those matters put to her as scenarios were never the subject of any evidence, so that they remain exactly what they were then, submissions by counsel. They are not proven facts and they cannot be regarded by you as facts proved and contrary to the facts proved by the Crown. They are not facts upon which the Accused can rely because he has not attempted to prove them". 47 It was submitted by counsel for the appellant that in giving the directions which I have quoted or summarised the trial judge had contravened s20(2) of the Evidence Act, as interpreted by the High Court in RPS v The Queen. It was submitted that a number of the elements which Gaudron ACJ, Gummow, Kirby and Hayne JJ had identified in par17 of their joint judgment as appearing in the summing-up which the trial judge had given in RPS and which they had criticised in par22 of their joint judgment were also to be found in the passages in the summing-up given in the present case which I have quoted or referred to. 48 It was further submitted by counsel for the appellant that the trial judge had erred in not precisely identifying the matters in relation to which the jury might more readily accept the prosecution evidence, in the absence of evidence from the appellant. It was true that the trial judge had told the jury that the disputed facts "included" (i) the appellant's movements on 29 May and 30 May (ii) the rest periods the appellant took on 29 May and 30 May and (iii) whether the appellant had taken any drugs and, if so, what drugs and how much and (iv) any reason the appellant might have had for telling lies. However, the trial judge more than once told the jury that this list given by him of matters on which the jury might more readily accept the prosecution evidence might not be exhaustive. It was submitted that the directions given by the trial judge would have permitted the jury to reason that they might more readily accept the prosecution evidence on some other matter of fact, because it appeared to the jury that it was a matter of which the appellant would have had first hand knowledge. 49 In his written submissions and on the hearing of the appeal counsel for the Crown conceded that the directions given by the trial judge about the failure of the appellant to give evidence were not in accordance with the principles laid down by the majority of the High Court in RPS, particularly insofar as the directions indicated that the jury could, in the light of the appellant's failure to give evidence on certain matters, more readily accept the prosecution evidence on those matters and that, therefore, the ground of appeal against conviction had been established. 50 No attempt was made by the Crown to submit that the present case was one of the rare cases referred to in par(27) of the joint judgment of the majority in RPS in which evidence contradicting an apparently damming inference to be drawn from proven facts could come only from the accused. It is apparent from the general tenor of the judgment of the majority in RPS and the terms of par(27) itself, that such cases, if they exist at all, will be rare. 51 In my opinion, having regard particularly to what was said by the majority of the High Court in RPS and to the Crown's concession, this Court should hold that the ground of appeal has been established. 52 Although the Crown conceded that the trial judge in his summing-up had contravened s20(2) of the Evidence Act and hence the ground of appeal relied on by the appellant had been established, the Crown nevertheless submitted that the appeal should be dismissed pursuant to the proviso to s6(1) of the Criminal Appeal Act, that is on the ground that no substantial miscarriage of justice had actually occurred. 53 It was submitted by the Crown that the appellant had not, by reason of the trial judge's error, lost a chance which was fairly open to him of being acquitted (see Mraz v The Queen (1955) 93 CLR 493 at 514 per Fullagar J). If there had been no blemish in the trial, an appropriately instructed jury acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the appellant (see Wilde v The Queen (1987-1988) 164 CLR 365 at 372 per Brennan, Dawson and Toohey JJ.) 54 These submissions on behalf of the Crown were developed as follows. As a result of the admissions made by the appellant at the trial, the only element of each offence charged which was in issue was whether the appellant had been driving in a dangerous manner. Whether the appellant had been driving in a dangerous manner was to be determined by the jury by applying an objective test to the actual driving behaviour of the appellant and the Crown was not required to prove any particular state of mind on the part of the appellant. R v Coventry (1938) 59 CLR 633 at 638; R v Hain (1966) 85 W.N. (Pt1)(NSW) 7 at 10-11. Quite apart from any fatigue from which the appellant might have been suffering (from driving too far or from having had insufficient rest) or the effects of any drugs he might have taken, the bare facts of the collision, that in broad daylight on a fine day on a straight stretch of a highway the appellant drove his vehicle at a speed of 100 kilometres per hour, or only slightly less, into the back of another vehicle, which was stationary or almost stationary, were such that an appropriately instructed jury, acting reasonably on the evidence and applying the correct onus and standard of proof, would inevitably have found that the appellant had been driving in a dangerous manner. The appellant bore the onus of establishing a defence under s52A(8) and an appropriately instructed jury acting reasonably on the evidence properly before them, including the evidence of Detective Ryan and the evidence of Mr Casey, would inevitably have held that the appellant had failed to discharge the onus. Accordingly, a jury acting in accordance with the conditions stated in Wilde would inevitably have convicted the appellant. 55 Counsel for the appellant did not really contest that the appellant had not, by reason of the trial judge's error, lost a chance of acquittal which would otherwise have been fairly open to him or that a jury acting in accordance with the conditions stated in Wilde would, even if there had been no error, still, inevitably, have convicted the appellant. However, counsel for the appellant submitted that the proviso to s6(1) could not be applied in favour of the Crown, unless a further condition for the application of the proviso which was stated in Wilde was satisfied, that the error of the trial judge should not have been fundamental, and he submitted that the error which had occurred in the present case had been fundamental, with the consequence that the proviso could not be applied. It was submitted that an accused person's right to silence is so fundamental that a trial in which that right is infringed departs from the essential requirements of a criminal trial. It was pointed out by counsel that in RPS the part of the judgment of the majority commencing at par(22) is headed "Directions contrary to fundamental features of criminal trials" and in par(22) their Honours said that there were "fundamental" reasons why none of the five elements which had been identified in par(18) should have appeared in the trial judge's summing-up. It was further submitted that, although the trial judge in his erroneous directions had listed some matters to which he told the jury those directions could be applied, he had also told the jury that the list he had provided might not be exhaustive, thereby permitting the jury to apply the erroneous directions to other matters. The erroneous directions about more readily accepting the evidence of the prosecution had led to the further directions about lies told in consciousness of guilt. It was pointed out that evidence relevant to how far the appellant had driven, what rest periods he had taken and what drugs he had taken had occupied quite a large part of the trial and his Honour's directions about the failure of the appellant to give evidence and his further directions about lies had taken up several pages of the transcript of his Honour's summing-up. 56 It is convenient, at this stage, to quote a passage in the joint judgment of Brennan J, Dawson J and Toohey J in Wilde at pp372-3, which was frequently referred to on the hearing of the appeal. Their Honours said:- "However, it was submitted that the question whether a reasonable jury would inevitably have convicted does not arise where the error in the conduct of the trial is fundamental. In such a case, it was submitted, it does not matter what the strength of the prosecution case or the weakness of the defence case was. Reliance was placed upon what was said by Gibbs J in Quartermaine v The Queen (1980) 143 CLR 595 at 600-601). 'Ordinarily, when there has been a misdirection of law, the proviso to s689 [ Criminal Code (W.A)] will be applied if the Crown establishes that if there had been no misdirection the jury would (or must) have come to the same conclusion. However, Wickham J, who delivered the judgment of the Court of Criminal Appeal in the present case, recognised that even if this were established 'there might still be a substantial miscarriage of justice if the trial was so irregular that no proper trial had taken place, in that "there had been a serious departure from the essential requirements of the law'". The Court of Criminal Appeal was right in taking that view of the law…" This view is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' (the phrase of Barwick CJ in Driscoll v The Queen (1977) 137 CLR 517); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: …. There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo. They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial:…. But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances". 57 In Wilde evidence had been wrongly admitted on the counts on which Wilde had been convicted. In their joint judgment Brennan, Dawson and Toohey JJ observed at p 374 that it was the significance of the evidence wrongly admitted, in the context of the trial, which must determine whether the error was of a fundamental kind. Their Honours carried out an examination of the significance at the trial of this wrongly admitted evidence. Their Honours concluded at p374:- "When viewed in context, it does not appear that the evidence wrongly admitted in relation to the counts upon which the applicant was convicted can have carried any significant additional weight having regard to the other evidence. This is, of course, to take into account the strength of the prosecution case upon those counts and the weakness of the defence, but it is to do so for the purpose of determining the gravity and significance of the error and not for the purpose of determining whether the jury would inevitably have convicted notwithstanding the error".

58 Transposed to a case in which there has been a misdirection, this reasoning calls attention to the significance of the misdirection in the circumstances of the trial, which circumstances include having regard to the strength of the prosecution case and the weakness of the defence. 59 he later decision of the High Court in Glennon v The Queen (1993-4) 179 CLR 1 is of particular importance, because the High Court had to consider whether the Victorian Court of Criminal Appeal had correctly applied the corresponding proviso in s568(1) of the Crimes Act (Victoria) in a case where the error made by the trial judge was a misdirection about the accused's right to silence. On the appeal to the High Court it was submitted that the Victorian Court of Criminal Appeal had erred in applying the proviso, both because the trial judge's error was so fundamental that an essential requirement of a fair trial had not been satisfied and because it could not be said that the jury, if the misdirection had not occurred, would inevitably have convicted the appellant. In regard to the first of these submissions Mason CJ, Brennan and Toohey JJ said at p8:- " Fundamental error According to the approach of the majority in Wilde , the proviso cannot be applied 'where proceedings have so far miscarried as hardly to be a trial at all'. But that is a particular situation arising only 'where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings'. In such a case the accused 'has not had a proper trial and… there has been a substantial miscarriage of justice'. But the majority stressed that there is no mechanical formula or rigid test to be applied to determine whether an irregularity is of this nature; each case will depend on its own circumstances and, in determining the question, it will be appropriate to have regard to the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error. In the circumstances of this case, it cannot be said that the trial judge's misdirection on the applicant's right to silence was 'so fundamental' that the trial was 'hardly a trial at all'. Although the right to silence is a fundamental right of any accused person, it cannot be said that any misdirection on that subject is a fundamental irregularity of the kind discussed in Wilde . In this case, the trial judge directed the jury that they were not to use the applicant's exercise of his right to silence in a manner adverse to him. This direction was perfectly proper. However, the trial judge then qualified the direction by informing the jury that they might use the applicant's silence to test the veracity of the applicant's defence. This subsequent direction was clearly erroneous. However, in the context in which it appeared and at a trial in which there was other evidence on which the applicant could be convicted and in which there was no other misdirection by the trial judge, the trial judge's misdirection was not a fundamental irregularity. We would reject the applicant's submissions in so far as they are based on this approach to the proviso". 60 The decision of the majority of the High Court in Glennon shows that, while the right to silence of an accused person is "fundamental", not every misdirection about the right to silence will be such a fundamental irregularity that no proper trial should be regarded as having taken place, with the consequence that the proviso cannot be applied. In accordance with what was said in both Wilde and Glennon, the question of whether the proviso can be applied in the present case is to be determined, having regard to the circumstances of the present case. It is legitimate to take into account the comparative strengths of the Crown case and the defence case, not for the purpose of determining whether the jury would inevitably have convicted, notwithstanding the error, but for the purpose of determining the gravity and significance of the error. 61 Earlier in this judgment I outlined the submissions made by the Crown about the strength of the Crown case, in support of its contention that the appellant had not, by reason of the trial judge's error, lost any chance of an acquittal. As I have already noted, counsel for the appellant did not seriously contest any of these submissions. I accept that, as a result of the formal admissions made by the appellant at the trial, the only element of the offences charged which was in issue was whether the appellant had driven in a dangerous manner, that that issue was to be determined objectively and that the simple facts of the collision would have satisfied any jury properly instructed and acting reasonably that the appellant had been driving in a dangerous manner. I accept also the Crown submissions about the defence under s52A(8), that the appellant bore the onus of establishing the defence and any jury properly instructed and acting reasonably would have held that the appellant had failed to establish the defence. 62 Whether the appellant was fatigued from driving too far or from having had insufficient rest and whether he was affected by the taking of drugs, while offering possible explanations of his manner of driving, were not really material to whether his manner of driving, judged objectively, had been dangerous. Even if the appellant had not driven far and had been well rested and had been drug free, his manner of driving would still have been dangerous. 63 Moreover, there was no real issue at the trial about the matters which the trial judge had listed in giving his erroneous directions. The formal admissions made by the appellant at the trial about the times at which and the areas in which he had placed mobile telephone calls necessarily entailed that what he had asserted in entries he had made in the log book and in answers he had given in the interview about his travelling times and rest periods was untrue. Those assertions could not possibly be true, in the light of the formal admissions he had made at the trial. The assertion the appellant made in the interview that he did not take drugs was contradicted by the certificate by the analyst, who had analysed the sample of blood taken from him. The analyst's certificate was admitted into evidence without objection and the analyst was not required to attend for cross-examination. There was no real issue that the appellant had taken drugs, although counsel for the appellant at the trial put to Dr Pearl various scenarios about when he might have taken the drugs. 64 The vice in the impugned directions in RPS was that they risked inversion of the onus of proof: risked the jury reasoning that the accused was or was more likely to be guilty because the accused had not come forward to prove something. That there was really no issue about the listed matters made the erroneous directions as to those matters of little significance in the context of this trial. There was realistically no room for the jury to reason in a manner which inverted the onus of proof. 65 It is true that the trial judge in the impugned directions told the jury that the list of matters he supplied might not exhaust the matters on which the jury could more readily accept the prosecution evidence, in the absence of evidence from the appellant. However, on the hearing of the appeal no other matter was suggested to us as being a matter to which the jury might have applied the impugned directions. In both the conversation with Detective Ryan before the interview and in the interview itself the appellant claimed not to have a full recollection of the collision. To the extent to which he had a recollection, his recollection was in accordance with, and did not conflict with, the evidence of the prosecution. 66 Having examined the circumstances in which the erroneous directions were given, I have concluded that the error was not such a radical or fundamental error that no proper trial should be regarded as having taken place. Accordingly I am of the opinion that, although the ground of appeal has been established, the proviso should be applied and the appeal against conviction should be dismissed. 67 HULME J: I agree with the orders proposed and with the reasons of James J.

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