R v De Montero; DPP v De Montero [2009] VSCA 255

JURY - Whether bias by juror - Whether a card received by applicant's counsel from one of the jurors gave rise to apprehension of bias against counsel and as consequence against the applicant - Outcome of investigation under s 78 of the Juries Act 2000 of no relevance to appeal.

CRIMINAL LAW - DPP appeal against sentence - All factors relevant to sentence considered by sentencing judge - Appeal dismissed.

1 Following a trial lasting some 10 days, a jury by a majority of 11 to 1 found the applicant guilty on one count of culpable driving causing death by gross negligence contrary to s 318(2)(b) of the Crimes Act 1958 ('the Act'). Following a plea the applicant was sentenced to a term of three years' imprisonment. Pursuant to s 27 of the Sentencing Act 1991, two years of that sentence were fully suspended for a period of three years. By the time of the appeal, the applicant had completed serving the portion of his sentence that had not been suspended. The applicant has appealed against his conviction while the Director of Public Prosecutions has appealed against the adequacy of the sentence.

2 The first two grounds of appeal against conviction relate to directions given to the jury concerning the alternate offence of dangerous driving causing death. In substance, the applicant complains that the directions did not correctly identify its essential character and failed to adequately distinguish between this alternative offence and driving which constitutes culpable driving.[1]

3 The combined effect of s 422A(1) and s 319 of the Crimes Act 1958 was that if the jury was not satisfied of the applicant's guilt on the count of culpable driving, it was required to go on and consider whether he was guilty of the lesser offence of dangerous driving causing death contrary to s 319(1) of the Act in its then form. With the agreement of both parties, the trial judge left the alternative lesser offence to the jury.

4 The grounds of appeal concerning the directions given as to the alternate offence are in these terms:

1. The trial judge erred by failing adequately or at all to define for the jury the elements of the offence of dangerous driving causing death pursuant to s 319(1) of the Crimes Act 1958; and in particular the trial judge failed to properly to discriminate between the level of fault necessary to prove the offence of culpable driving causing death by gross negligence and that required in order to prove the alternative offence of dangerous driving causing death, with the consequence that the latter offence's elements were conflated with that of the former.
2. The trial judge erred by failing properly to describe for the jury the manner in which they were to assess objectively whether the applicant had ridden in a manner that was dangerous to the public, and in particular, the judge erred by directing the jury that whether the applicant had ridden in a manner that was dangerous to the public was to be assessed by determining whether 'a reasonable person in the situation of the accused would have appreciated that he was riding at a speed dangerous to the public'.

5 Before we turn to examine these grounds of appeal it is convenient to set out in brief form the facts of the case. On 17 November 2004 the applicant rode his motorcycle south along Springvale Road, Mulgrave. At its intersection with Glenvale Crescent he collided with a motor car driven by a Mr Matthews. As a consequence of that collision, the passenger in Matthews' car, Ms Sarah Cates, was killed. Matthews' car was turning right across the southbound lanes of Springvale Road at the time of the collision. The speed of the applicant's motorcycle was such that Matthews did not see him until seconds before the collision. The applicant was unable to brake sufficiently to avoid the collision with Matthews' car.

6 The applicant's bike had been stationary at the intersection of Springvale Road with Wellington Road. While there was contradictory evidence, the trial judge, in sentencing the applicant, stated that the jury was entitled to have accepted that the applicant accelerated from that intersection at a very fast rate well ahead of the other traffic travelling in the same direction.

7 At the time of the collision the applicant had travelled a distance of approximately 500 metres from the intersection of Springvale Road with Wellington Road and his motorcycle was in the fifth of its six gears. It collided with the passenger side of Matthews' car causing it to move sideways, strike a gutter and roll over. The applicant himself sustained very serious injuries as a consequence of the collision.

8 The Crown adduced evidence, by way of calculations from an expert witness in reconstructing motor vehicle collisions, that the applicant must have been travelling at about 141 kph at a point some nine metres prior to the point of collision. That estimate of speed was challenged by an expert witness called on the applicant's behalf. He calculated that the applicant's bike's speed at collision would have been at between 90 kph and 107 kph. The speed limit applicable to that section of the roadway where the collision occurred was 80 kph. The expert evidence given was that had the applicant been travelling within the speed limit the collision would probably not have occurred.

9 The prosecutor, in his closing address, submitted to the jury that even if the applicant had only been travelling at the speed estimated by the defence expert, that speed was sufficient to found a verdict of culpable driving by reason of gross negligence.

10 The learned trial judge directed the jury as to the elements of the charge on the presentment, culpable driving, and also the elements of the statutory alternative, dangerous driving causing death. Later we must set out part of what he said. It was properly conceded by the applicant on appeal that it was appropriate that the alternative offence of dangerous driving causing death or serious injury be left to the jury.[2] Because of the issues raised by these grounds of appeal, it is necessary to first consider what constitutes the offence of 'dangerous driving causing death or serious injury' and the directions which a jury should be given including directions where it is an alternative to the charge of culpable driving.

11 Section 64 of the Road Safety Act 1986 provides as follows:

64. Dangerous Driving

(1) A person must not drive a motor vehicle at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case.

(2) A person who contravenes sub-section (1) is guilty of an offence and is liable to a fine of not more than 240 penalty units or to imprisonment for a term of not more than two years or both and on finding a person guilty of the offence the Court must, if the offender holds a driver licence or permit, cancel that licence or permit and must, whether or not the offender holds a driver licence or permit, disqualify the offender from obtaining one for such time (not being less than six months or, if the vehicle was driven at a speed of 45 kph or more in excess of that permitted, 12 months) as the Court thinks fit.

(3) If on a prosecution for an offence under this section the Court is not satisfied that the defendant is guilty of that offence but is satisfied that the defendant is guilty of an offence against section 65, the Court may convict the defendant of an offence against section 65 and punish the defendant accordingly.

12 Section 65 deals with the lesser offence of careless driving. The section is in the following terms:

65. Careless Driving

A person who drives a motor vehicle on a highway carelessly is guilty of an offence and liable for a first offence to a penalty of not more than 12 penalty units and for a subsequent offence to a penalty of not more than 25 penalty units.

13 A driver who fails to exercise the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances drives carelessly.[3]

14 Section 318 of the Act concerns the offence of culpable driving causing death and is in these terms:

318. Culpable Driving

(1) Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years' maximum) or a level 3 fine or both.

(2) For the purposes of sub-section (1) a person drives a motor vehicle culpably if he drives the motor vehicle -

(a) recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving; or

(b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; or

(c) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle; or

(d) whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.

15 When the offence of culpable driving was introduced into the Crimes Act by the 1967 amendment to s 318,[4] the offence of reckless or dangerous driving which had hitherto been the subject-matter of s 318 was removed and became s 80A(1) of the Motor Car Act 1958 (Vic). In due course, that section became s 64 of the Road Safety Act 1986.

16 Section 319 of the Act provided, when first introduced:[5]

319. Dangerous Driving Causing Death or Serious Injury

(1) A person who by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of, or serious injury to, another person is guilty of an indictable offence and liable to level 6 imprisonment (five years maximum).

(2) In this section 'serious injury' has the meaning given by section 15.

17 The new offence was first proposed in 1992 when the Law Reform Commission of Victoria ('the Commission') recommended the introduction of the offence of 'dangerous driving causing death or very serious injury' but also recommended that the existing offence of culpable driving causing death should be abolished. The Commission noted that one of the criticisms of its proposal was that it would be extremely difficult to direct juries on the difference between manslaughter by gross negligence and dangerous driving causing death. It was claimed that juries found it difficult enough to grasp the basic difference between criminal negligence and civil negligence and that it would be even more confusing if they also had to be directed about differing degrees of criminal negligence.[6] This criticism reflected a concern expressed by the Full Court in R v Shields[7] where the Court observed:

The suggestion of a half-way house, lying between civil negligence and the negligence of felonious homicide, while less obnoxious to the moral philosopher, presents the lawyer with difficulties ... Even at the present day it is impossible to draw the distinction [between civil negligence and negligence for the purpose of homicide] in terms which do not require a discretionary determination or value judgment on the part of the jury ... if the law is to recognise some tertium quid, lying somewhere between civil negligence and that which makes the actor guilty of manslaughter, the difficulty of drawing the lines of demarcation is increased. The negligence need not be 'gross' but must be 'serious'. What is the jury to be told if they ask where negligence ceases to be merely serious and becomes gross?[8]

18 It was the Commission's view that the difficulties in drawing such distinctions had been overstated. It thought that the confusion could be avoided by ensuring that the new offence was properly defined and an appropriate jury direction developed. Significantly, the Commission considered that juries, as the arbiters of community standards, were well suited to making discretionary or value judgments of such a nature.[9] Consequently, the Commission proposed the adoption of a definition for dangerous driving that the driving be of a manner 'that falls substantially below the level of care that a competent and careful driver would take in the circumstances'. It was thought that such a definition would make it clear that the degree of negligence required was less than that for manslaughter but 'considerably more' than for the minor offence of careless driving.

19 A Department of Justice discussion paper of 2004, which preceded the introduction of s 319, raised the question whether a distinction could be made between 'substantial' negligence, which the Commission had previously recommended, and 'gross' negligence, and whether it was feasible to instruct a jury as to degrees of negligence.

If 'gross' negligence is defined in part to mean negligence that is so bad as to merit punishment,[10] and if 'substantial' negligence is substantial enough to merit some form of punishment, then 'substantial' negligence appears to be no different to 'gross' negligence.[11]

20 The Commission had also suggested in 1992 that the jury could be told:

Clearly, it is not always easy to distinguish between driving which is so bad as to constitute manslaughter, that which is bad enough to make the accused guilty of the lesser offence of dangerous driving causing death, and that which is merely careless. However, it will help you to make up your mind if you think of a scale. At the bottom of this scale are cases of momentary carelessness - the kind of driving errors which most of us may make from time to time, when we are not concentrating as carefully as we should. At the top of this scale is driving which we would all agree is totally unacceptable. Driving of the kind required to prove manslaughter belongs near the top end of this scale - it is a gross departure from what we would expect of a careful and competent driver. Dangerous driving is driving which falls more towards the middle of the scale. It is driving which we would all agree is unacceptable and deserves to be punished, but it is not so bad as to warrant that person being convicted for manslaughter. On the other hand, it involves considerably more than just a momentary, perhaps excusable, mistake or error of judgment.[12]

21 The Commission had also proposed that the Crimes Act should be amended so as to permit the offence of dangerous driving contained in s 64 of the Road Safety Act 1986 to be left as an alternative to a charge of manslaughter or dangerous driving causing death where there was some uncertainty as to whether the driving was the cause of death. The Commission had thus proposed that the offence of 'dangerous driving' should have the same meaning as in the offence of 'dangerous driving causing death'.[13]

22 The offence created by s 319 came into operation on 13 October 2004.[14] It carried a maximum penalty of five years' imprisonment regardless of whether the driving caused serious injury or death. The new offence was created to fill a gap that was perceived to exist in seriousness between the offence of culpable driving causing death, which carried a maximum penalty of 20 years imprisonment, and the offence of dangerous driving contrary to s 64 of the Road Safety Act 1986 which carried a maximum penalty of two years imprisonment.

23 Section 319, as noted earlier, was amended in 2008 by dividing the new offence into two separate offences - dangerous driving causing death, and dangerous driving causing serious injury. The new offences carried a maximum penalty of 10 years' and five years' imprisonment respectively. This change commenced operation on 19 March 2008.

24 With the introduction of s 319, the offence of driving at a speed or in manner dangerous was both a summary offence and an indictable offence where death or serious injury was caused. Counsel for the Director initially argued that the meaning of 'dangerous' differed according to the consequences contemplated by the applicable section, or the penalty, or both. During the course of argument he resiled from this contention, correctly in our view, and submitted that the test must be the same for each type of offence. We do not doubt that the character of the driving necessary to constitute dangerous driving does not alter according to whether its consequence is death or serious injury, or whether the offence charged is a summary or an indictable one.

The minimum want of care required to establish the different offences. Preliminary observations

25 A direction was required in the present case which enabled the jury to adequately differentiate between different levels of negligence. The applicant complains that the learned trial judge failed to adequately differentiate between a want of care sufficient to establish dangerous driving and driving which amounts to culpable driving under s 318(2)(b). We turn then to a consideration of the minimum want of care which the law requires be proved in order that each offence be established.

26 In this connection, the law is quite clear at each extreme. That is, the extent of the want of care necessary to establish negligent culpable driving/manslaughter by gross negligence is not in doubt; whilst at the other extreme is the case in which a person suffers injury or death in consequence of the ordinary risks of road use. The latter case may give rise to a civil remedy, but nothing more.

27 The offence created by s 319(1) in its original form[15] is more complicated. As will be seen, in determining whether particular driving was of the prohibited kind involves consideration of the extent to which the driving departed from what should be expected of a reasonably prudent driver in the circumstances. That is informed by the extent of the risk of injury (not of a speculative kind) which a reasonable driver in the situation of the accused ought foresee was created by that driving. The extent of the risk of injury, in turn, has two aspects - the extent of the chance that injury might be suffered; and the extent of the injury which might ensue if the risk eventuated.

28 Now we must say something more about the position at the extremes; and say much more about the parameters of the s 319 offence.

29 The offence of culpable driving overlaps substantially with manslaughter by gross negligence, negligence as defined in s 318(2)(b) being negligence of the same degree as that which is required to support a charge of manslaughter.[16] The word 'unjustifiably' in s 318(2)(b) means 'without due cause' whilst the word 'gross' means 'glaring, flagrant, monstrous'.[17] The court in R v De'Zilwa,[18] drawing upon the experience gained in the 30 years since the offence of culpable driving had been introduced, considered that a direction for culpable driving, more in keeping with that given in a charge of manslaughter by criminal negligence, was warranted. Where the Crown alleges that the death was caused by negligent driving the direction required is that stated by Charles JA in De'Zilwa:

In my opinion where in future a person is charged with culpable driving under s 318(2)(b), the judge should direct the jury that the jury are required to find that the driving of the accused involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, and which involved such a high risk that death or serious injury would follow, that the driving causing death merited criminal punishment. Consistently with Lucas, a reference to and comparison with civil negligence would, I think, also be helpful to the jury. With the consent of my colleagues, I have consulted the President as to the form of this suggested direction and he has indicated his agreement with it.[19]

30 The model direction proposed in De'Zilwa drew upon the observations of the Full Court in Nydam v R[20] where manslaughter by gross negligence was described as 'such a great falling short of the standard of care which a reasonable person would have exercised and ... such a risk of death or grievous bodily harm that the doing of the act merited criminal punishment.'[21]

31 More recently, in R v Mitchell,[22] this Court again emphasised that there must be a 'gross departure' from the standard of reasonable care as would be sufficient to support the crime of manslaughter, involving such 'a high risk that death or serious injury would follow' that the driving merited criminal punishment.[23]

32 We should immediately state that driving which 'merit(s) criminal punishment' is not a basis for distinction between culpable driving and dangerous driving.[24] Driving which 'merit(s) criminal punishment' is apposite to describe the offence of dangerous driving created by s 319 because of its inherent quality, its potential consequences for other road users, and the maximum sentences for the two offences in s 319 which the legislature has fixed for such driving.

33 For completeness we should also refer to the offence of negligently causing serious injury contrary to s 24 of the Act, an offence which often appears on the same presentment as a count of culpable driving where one victim has been killed and another seriously injured. When a charge under s 24 is joined on the same presentment with a charge under s 318(2)(b) of the Act, the same direction as to criminal negligence will be given in respect of both counts.[25]

34 The concept of danger raised by the language of s 319, with its reference to driving at a speed or in a manner which is dangerous, has an in-built notion of exposure to the chance of harm or serious injury.[26] Danger has a meaning in the present context of 'liability or exposure to harm or injury; the condition of being exposed to the chance of evil; risk, peril' and is ordinarily construed with 'the evil that threatens or impends'.[27] Thus, speaking generally, to be exposed to dangerous conduct is to be put in the position of exposure to the chance, risk or peril of injury or death. This notion applies to other common law and statutory offences which involve a dangerous act. All that said, a question arises as to characterisation of the extent of the potential harm which must be established in order to make out the particular offence.

35 As we have already observed, the offence of culpable driving substantially overlaps with unlawful and dangerous act manslaughter. An act is dangerous for the purpose of manslaughter by unlawful and dangerous act if 'a reasonable man in the accused's position, performing the very act which the accused performed, would have realised that he was exposing another or others to an appreciable risk of really serious injury.'[28] The objective test stated in Wilson v R has a relevance to the objective element of the offence of dangerous driving. But characterisation of the extent of harm which is required to be foreseen in the case of unlawful and dangerous act manslaughter, or culpable driving, does not inescapably lead to a similar characterisation in the case of s 319 offences.

36 We turn to a consideration of the principal cases that inform the nature of dangerous driving. In Kane v Dureau,[29] Cussen J considered that driving fell within the offence of 'driving a motor car on a public highway, recklessly or negligently or at a speed or in a manner which is dangerous to the public having regard to all of the circumstances' under s 10 of the Motor Car Act 1900 if the circumstances were such 'that a substantial harm may happen to another person using the road.'[30]

37 In The King v Coventry[31] the defendant was convicted of 'causing death by driving in a manner dangerous to the public'. Complaint was made on appeal to the South Australian Court of Criminal Appeal that the nature of the charge had not been accurately or sufficiently explained to the jury in the trial judge's directions. At the outset, the court rejected a contention by the defendant that 'driving to the danger of the public' meant 'driving with culpable negligence' or that the jury must be directed in such terms. It referred to the following passage from the judgment of Lord Atkin in Andrews v Director of Public Prosecutions:[32]

I cannot think of anything worse for users of the road than the conception that no-one could be convicted of dangerous driving unless his negligence was so great that if he had caused death he must have been convicted of manslaughter.[33]

But in this state, Parliament has been fit to act upon the view that, in order to discourage dangerous practices by the drivers of motor vehicles, it is necessary to hold out the threat of serious punishment, whenever death is caused by a contravention of the prohibitions against driving at a speed or in a manner which is dangerous to the public. In our view of s 14 a charge of driving recklessly or in a culpably negligent manner must no doubt be supported by evidence which satisfies the jury that the defendant was guilty of a very high degree of indifference to the risk of injury to others. The charge is said to involve mens rea - some indeterminate state of the defendant's mind which no-one has so far been able to define ... but a proper charge of driving at a speed or in a manner which is dangerous to the public the prosecution is no so much concerned with the state of the defendant's mind as with his conduct. The essence of this charge is the objective fact - the risk of injury to others. In this form of the charge it alleges that the conduct of the defendant attained to a standard which is 'objective impersonal and universal, fixed in relation to the safety of other users of the highway' (McCrone v Riding [1938] 1 All ER 157.) As a matter of pure reason, we think that the difference between these two forms of offences is much more obvious in the approach than in the final result. A man can't be held to be driving recklessly or with culpable negligence unless the manner of driving involves 'danger to the public' and it is difficult to see how a jury, properly directed could hold that the defendant was driving at a speed or in a manner dangerous to the public, unless the evidence justifies the inference of a fairly high degree of indifference to the safety of others ...

The fact to be proved in this case was that the defendant was driving in a manner which was dangerous to the public, and if it is necessary to attempt a definition we should say that driving in a manner dangerous to the public means the act of driving in a manner which any ordinary person (in the situation of the driver) would recognise as dangerous, in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road - the common place incidents of the use of the highway in question under the conditions of modern transport by fast moving vehicles.[34] (Emphasis added)

39 The Court entertained a reservation as to whether the trial judge had sufficiently distinguished between 'mere negligence' and the offence of driving in a manner dangerous to the public. The trial judge had directed the jury as to the distinction between the crime of manslaughter and the offence of driving in a manner dangerous. The Court emphasised the importance of distinguishing for the jury between negligence involving civil responsibility, or that which merits a prosecution for driving without due care and attention, and a charge such as driving to the danger of the public. Dangerous driving was said to imply conduct which is open 'to grave censure as involving the plain threat of serious injury to other people'.[35] It was concluded that there was a distinct possibility that the jury may have misunderstood its duty and found the defendant guilty of this offence if he had caused the death of the deceased by driving without due care and attention.

40 The High Court refused an application by the Crown for special leave to appeal.[36] Kane v Dureau was referred to without criticism in the joint reasons of Latham CJ and Rich, Dixon and McTiernan JJ, who stated that the standard to determine whether the driving is in a manner dangerous to the public was one which, using the language of Lord Hewart CJ in McCrone v Riding[37] is 'impersonal and universal and fixed in relation to the safety of other users of the highway.'[38] Although there were passages in the reasons of the Court of Criminal Appeal which attracted some criticism, those passages to which we have referred were implicitly the subject of approval by the High Court in that and later decisions of the High Court to which we shall now turn.

41 In McBride v The Queen[39] Barwick CJ examined the quality of the driving which makes it dangerous and which distinguishes it from mere negligence as between the driver and the injured party. He said:

The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public, but the need for death or injury to a person to result from impact with a vehicle so driven may make that question unlikely to arise, though the possibility of its doing so must be acknowledged.

This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section.

This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others**.** This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby. These distinctions make it imperative that the jury be specifically directed as to the criteria to be applied and the distinctions to be observed in determining whether any particular speed or manner of driving can have the quality, intrinsic or occasional, of being dangerous to the public within the meaning of the section: and that the particular features of the driving charged as in breach of the section be isolated for the jury and related to these criteria. (Emphasis added)

42 The observations of Barwick CJ in McBride must be considered in their context and in conjunction with the exposition of dangerous driving discussed in Coventry. In Jiminez v R[40] Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ, said:

The manner of driving encompasses 'all matters connected with the management and control of a car by a driver when it is being driven'. For the driving to be dangerous for the purposes of s 52A there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention. Although a course of conduct is involved it need not take place over any considerable period. Nor need the conduct manifest itself in the physical behaviour of the vehicle. If the driver is in a condition while driving which makes the mere fact of his driving a real danger to the public, including the occupants of the motor vehicle, then his driving in that condition constitutes driving in a manner dangerous to the public. In the same way, driving a motor vehicle in a seriously defective condition may constitute driving in a manner dangerous to the public, even though the defect does not manifest itself until such time as the vehicle is out of the control of the driver. But it should be emphasized, and it must always be brought to the attention of the jury, that the condition of a driver must amount to something other than a lack of due care, before it can support a finding of driving in a manner dangerous to the public. Driving in that condition must constitute a real danger to the public.[41] (Emphasis added)

43 The plurality reasons then quoted a portion of the above mentioned passage from the judgment of Barwick CJ in McBride. Those reasons, and the reasons of McHugh J, also referred to the question of whether the driver ought to have known of 'the real risk' of him falling asleep.[42] The approach taken in Jiminez was to distil and combine critical aspects of the propositions stated in Coventry and McBride.

44 In the discussion paper circulated by the Department of Justice in 2004 entitled 'Culpable and Dangerous Driving Laws,' the passage from Jiminez which we have emphasised was understood to mean that 'negligence' is not an element of the offence of dangerous driving and that the offence contains no fault element.[43]

45 In the Second Reading Speech introducing the new offence the Minister said that the prosecution:

[w]ill not be required to prove criminal negligence, which is required to prove culpable driving causing death. Rather, ... the prosecution will have to prove that the accused drove at a speed or in a manner dangerous to the public having regard to all the circumstances of the case, and by doing so, caused the death of or serious injury to another person.[44]

Some other speakers during the Parliamentary debate expressed similar views.[45]

46 Counsel for the Crown drew upon the Department discussion paper, the Second Reading Speech and the passage from Jiminez and argued that the new offence was an offence of strict liability containing no fault element. But to so treat the offence would involve a fundamental shift from the view of the offence which was expressed by the Court of Criminal Appeal in Coventry and approved by the High Court. The submission misconceived the import of the observations in the passage from Jiminez. It also overlooked the supporting footnote to that passage, where reference was made to the observations of Barwick CJ in McBride[46] and to a passage in R v Buttsworth[47] in which O'Brien CJ of Cr D, with whom Street CJ and Nagle CJ at CL agreed, said:

driving 'in a manner dangerous to the public' is a definition of a degree of negligence for the safety of other road users and his Honour had in effect so defined it by treating it as an offence of criminal negligence but giving the jury the elements to be proved in order to convict of it ... It is of course true to say that it is not sufficient or appropriate simply to describe driving in a manner dangerous to the public as a degree of negligent driving. A direction to that effect would fail because it does not set out the specifics of the degree of fault appropriate to the offence of culpable driving. But to describe the driving as being that degree of negligence which amounts to a manner of driving which is dangerous to the public, as those terms are explained in McBride's case and those which precede it, is I think, correct, both logically and according to authority.[48]

47 Descriptions of a manner of driving a vehicle as careless, negligent,[49] dangerous or culpable have been employed at different times by the legislature, both in this State and in other jurisdictions to distinguish between degrees of disapprobation of the driving.[50] They are differences of degree and not kind. They are utilised to reflect the degree of departure from the standard of care and the degree of risk to the safety of others.[51]

48 In Andrews v Director of Public Prosecutions[52] Lord Atkin made a number of observations which remain highly relevant to the present issue. He drew a distinction between driving negligently, driving in a manner dangerous to the public and driving of a kind which justifies a conviction for manslaughter. His Lordship rested these distinctions on the degree of departure from the standard of care for other road users to be expected of the ordinary prudent driver. Referring to the various provisions of the United Kingdom Road Traffic Acts, Lord Atkin said:

Those Acts have provisions which regulate the degree of care to taken in driving motor vehicles. They have no direct reference to causing death by negligence. Their prohibition, while directed no doubt to cases of negligent driving, which if death be caused would justify convictions for manslaughter, extend to degrees of negligence of less gravity. Sect 12 of the Road Traffic Act 1930 imposes a penalty for driving without due care and attention. This would cover all degrees of negligence. Sect 11 imposes a penalty for driving recklessly or at a speed dangerous to the public. There can be no doubt that this section covers driving with such a high degree of negligence as that if death were caused, the offender would have committed manslaughter. But the converse is not true, and it is perfectly possible that a man may drive at a speed or in a manner dangerous to the public and cause death and yet not be guilty of manslaughter: and the legislature appears to recognise this by the provisions of s 134 of the road Traffic Act, 1934, that on an indictment for manslaughter a man may be convicted of dangerous driving. But apart altogether from any inference to be drawn from s 34, I entertain no doubt that the statutory offence of dangerous driving may be committed though the negligence is not of such a degree as would amount to manslaughter if death ensued.[53]

49 Then followed the passage that was quoted with approval by the Court of Criminal Appeal in Coventry to which we referred at [38].

It would therefore appear that in directing the jury in the case of manslaughter the judge should in the first instance charge them substantially in accordance with the general law, that is requiring the high degree of negligence indicated in Bateman's case (19 Cr App R 8) and then explain that such a degree of negligence is not necessarily the same as that which is required for the offence of dangerous driving, and then indicate to them the conditions under which they might acquit of manslaughter and convict of dangerous driving.[54]

51 R v Buttsworth[55] was concerned with the offence of culpable driving under s 52A of the Crimes Act 1900 (NSW). That section is the equivalent of s 319 of the Victorian Crimes Act, whilst negligent manslaughter in NSW is the same as the offence of culpable driving in this State. O'Brien CJ of Cr D observed that what was being punished was a neglect of duty, so that the primary distinction between the offence under s 52A and the more serious offence of manslaughter or the lesser offence of driving negligently was to be found in the culpability of the neglect. His Honour regarded it as necessary, where manslaughter by negligent driving and driving in a manner dangerous were both charged, that the jury be given a direction:

which distinguishes their gravity and the authorities establish that this may be done by contrasting their relative degrees of departure from the standard of the ordinary prudent driver. In this way the task of explaining gross negligence for manslaughter and danger to the public for culpable driving may be approached when going on to state the specific prescriptions of the

common law for manslaughter by negligence in driving and of the legislature for culpable driving by danger to the public in the manner of driving.[56]

52 In R v Duncan,[57] Napier CJ drew the distinction between driving without due care and attention and driving in a manner dangerous in directing the jury in these terms:

Our statute law provides for something like an ascending scale of offences. The least of these is the offence of 'driving without due care and attention'. That covers any material departure from the high standard of care which is due by anybody who drives a motor vehicle. It is the standard which gives a civil right of action for damages; but, over and above that, there is the more serious offence of driving in the manner alleged in the information in this case, namely, 'driving in a manner dangerous to the public'. I think that the distinction between these two offences is best explained by pointing out to you that all - or at any rate most - of us are liable at times to do things that we ought not to do, and to leave undone things that we ought to have done. When we use the public highway, we must expect to meet people like ourselves - people who are only human beings - with the human tendency to depart, at times, from the full standard of care and skill. That you may regard as negligence - 'driving without due care and attention' - but, nevertheless as an ordinary 'risk of the road'. If it is a case of 'You today, and me tomorrow', we have to accept the risk as one of the ordinary incidents of modern life. If we live in an age of aeroplanes and fast-moving traffic, we have to take things as they are - the thick with the thin, and you the pedestrian today and tomorrow the driver, are to say where the line should be drawn between a mere lapse from due care and attention and conduct which is plainly blameworthy.

If it is the sort of thing that any of us might be liable to do - although we might be sorry for it afterwards - you may regard it as driving without due care and attention, but, nevertheless, as an ordinary - and in one sense a necessary - risk of any road on which vehicles are driven by ordinary people like ourselves - people who mean well, but sometimes make mistakes. But over and above that, it must be a matter of common knowledge that there are some people who - at times - impose on other users of the road a risk which is by no means a fair or necessary risk of the road. They drive in a manner which imposes upon other users of the road a risk which a reasonable person, in the position of the driver, ought to recognise as a real danger to the public. That is what this charge means, when it charges the accused with driving in as manner dangerous to the public. It refers to the sort of risk which is in no sense an ordinary or necessary risk of the road, and to a manner of driving which is treated as a fairly serious crime.

53 Subsequently, in R v Mayne,[58] Bray CJ said this:

Thus it is customary to distinguish between such departures from the proper standard of care as may be regarded as ordinary risks of the road, even if they would found a civil action, and such a manner of driving exposing other road users to such a risk as 'any reasonable person in the situation of the driver ought to recognize as a real danger to the public' (Duncan's case). Moreover it is also customary and usual, and probably, in view of the provisions of s 14a, obligatory, to tell the jury of their power to convict of a lesser offence under that section and to invite them to consider in an ascending order of seriousness whether the manner of driving they find against the accused was not negligent at all or was such as to show merely that he was driving without due care or attention or such as to be dangerous to the public. If they are satisfied beyond reasonable doubt that it falls into the third category, they then have to consider further whether it caused the death alleged.[59]

54 In Pope v Hall,[60] Wells J spoke of dangerous driving as:

... pass(ing) beyond the point where it represented a mere departure - and nothing more serious - from the rules of the ordinary highway code, and became so serious a departure from those rules that the manner or speed of the driving (as the case may be) created a wholly unreasonable and unwarranted danger to the life or limb or both of other road users.[61]

55 The degree of risk or danger arising from the driving informs the characterisation of the driving. That is to say, the degree of turpitude of the driving will vary according to the gravity of the risk created by the driving.[62] Thus Wells J in

Pope v Hall considered that the combination of the following two factors determined how dangerous the driving was:

the degree of risk that something untoward will happen, and the degree of risk that if something untoward does happen, the damage caused will be more, rather than less serious.[63]

56 The quality of driving necessary to characterise it as dangerous to the public, has been described in many ways:

• 'substantial possibility of injury to persons who might reasonably have been expected to come upon the road';

• a 'real, although a potential danger to traffic';[64]

• 'one of substantial danger to the public' and the probability that, if injury had occurred, it would have been severe;[65]

• the 'potentiality of risk to the hypothetical public,'[66]

• an 'actual or potential danger'; [67] and,

• so serious a departure from the rules of the road as to 'create a wholly unreasonable and unwarranted danger to the life or limb or both of other road users'.[68]

57 McBride, Jiminez and other cases we have mentioned make clear that it is necessary to contrast dangerous driving with driving that is only sufficient to support a civil suit or a charge of careless driving. But in the present case, there was also a need to contrast the content of the dangerous driving offence with the content

of culpable driving, the count on the presentment.[69] Where driving is alleged to be culpable or, as in some jurisdictions, to constitute manslaughter,[70] the jury must be directed, as we have said, to consider whether the driving gave rise to a 'high risk of serious injury or death'.[71] Then, as to the alternative offence, the authorities to which we have referred show that the jury must be told that it involves a degree of risk of injury which exceeds the ordinary risks of the road. The question is just what formulation should be adopted.

58 In R v Lawrence,[72] Lord Diplock spoke of the driving creating 'a real risk of harmful consequences resulting' therefrom. He formulated a jury direction of the risk as 'obvious and serious' in dealing with the equivalent offence in England.[73]

59 The Privy Council in Brown (Uriah) v The Queen[74] more recently re-affirmed that formulation of the risk and distinguished it from the 'very high' risk of death in the context of 'reckless motor manslaughter'.[75] Again, as we have already noted, Bray CJ in Mayne, adopting the formulation of Napier CJ in Duncan, referred to it as 'the sort of risk which is in no sense an ordinary or necessary risk of the road' involving a manner of driving which is treated as a 'fairly serious crime'.

60 The majority in Wilson - which was, of course, a manslaughter case - observed that an act may be dangerous without carrying with it an appreciable risk of serious injury and that, unless the two elements were brought to the minds of the jury, there was a real danger that an accused might be wrongly convicted of manslaughter. The criterion of 'appreciable risk' formulated in Wilson may well have been derived from Lord Atkin's statement in Andrews v DPP[76] as to criminal negligence.

61 In the context of s 319, the degree of risk of injury needs to be carefully defined to ensure its differentiation from the ordinary risks of the road and the high risk of serious injury or death which is appropriate in a case of unlawful and dangerous act manslaughter (or culpable driving).

62 The trial judge employed the description 'serious' in directing the jury as to the relevant risk. His Honour was right to direct the jury as to the degree of risk required, for otherwise the jury might have concluded that any level of risk exceeding the ordinary risks of the road would suffice. We consider that, consonant with the objective test formulated in Wilson, the risk should also be described as something akin to appreciable, so as to adequately differentiate the ordinary risks of the road from conduct which is to be treated as dangerous.[77] Such an approach conforms with the view expressed by the Commission in 1992, to which we have referred, that the offence should involve a degree of negligence 'considerably more than for the minor offence of careless driving' and be 'substantially less' than the standard of care that would be exercised by an ordinary and prudent driver.[78]

63 As we have earlier observed, dangerousness of driving is informed by the degree of risk of harm being caused and the extent of potential harm. That was the point of the observation made by Wells J in Hall v Pope to which we referred at [54]. Thus far we have focussed on the first of those matters.

64 As to the second, the answer is not to be found simply in the fact that, where a charge is laid under s 319, or it is an alternative to a count on a presentment, there will have been death or serious injury. For it is the potential of harm which must be considered. Nonetheless, and given the wisdom of hindsight, the occurrence in fact of death or serious injury may be a pointer to the extent of potential harm which ought reasonably to have been in a reasonable driver's contemplation in the circumstances.

65 Although the extent of potential harm has at times been formulated in general language,[79] more often the extent of potential harm has been framed in the language of 'death or serious injury', 'threat of serious injury', and damage which, if it happened, would have been 'severe'. We are very conscious that the content of the s 319 offences must be distinguished from, on the one hand, the offence of culpable driving and, on the other hand, carelessness giving rise only to a civil claim, or to prosecution for the offence of careless driving. Even so, in the context of s 319 we see no justification for reducing the extent of foreseeable potential harm to less than the potential for death or serious injury.

66 Ground 2 asserts that the use by the trial judge of the ordinary or reasonable person test involved specific error. His Honour framed the necessary enquiry as being whether 'a reasonable person in the situation of the accused would have appreciated that he was riding at a speed dangerous to the public'; and that the question was whether 'the reasonable person in that situation would or should have appreciated that he was riding at a speed dangerous to the public'. He said also that 'the crime is committed by the act of ... riding in a manner which a reasonable person in the situation of the rider would recognise as dangerous in the sense that it involves a risk of serious injury or death to others.'

67 It was contended for the applicant, in writing, that the test for dangerous driving was 'wholly objective'. The applicant submitted that the judge had erred by directing the jury to have regard to whether the 'ordinary' or 'reasonable' man would have appreciated that his manner of riding the bike was dangerous. This had diluted what should have been an entirely objective test and did not accord with the law as expressed in R v Evans[80] and R v Ball.[81] The argument was advanced by the applicant because driving that was not objectively dangerous under the Australian test might be dangerous under the English approach.

It is quite clear from the reported cases that if a driver in fact adopts a manner of driving which the jury think was dangerous to other road users in all the circumstances, then on the issue of guilt it matters not whether he was deliberately reckless, careless, momentarily inattentive or even doing his incompetent best.[82]

69 There are further English cases, in addition to those relied upon by the applicant, that require no more than a breach of standards of 'reasonable prudence' for there to be dangerous driving.[83] According to the applicant, the English 'entirely objective' standard allowed the 'slightest negligence' - or even no departure from the standard of care of a reasonable driver - to amount to driving in a manner dangerous. So, the applicant submitted, the introduction of the concept of the ordinary or reasonable person in the situation of the driver meant that the threshold for an offence under s 319 was set too high. In consequence, the prospect of a guilty verdict on the alternative offence was prejudicially reduced.

70 The written submission that an 'entirely objective' test does not permit recourse to the ordinary person in the situation of the driver was not amplified in oral argument. The passage from Professor Street's Law of Torts[84] to which Owen J referred in McHale v Watson[85] quotes a passage from Lord Macmillan's statement in Glasgow Corporation v Muir[86] that the standard of foresight of the reasonable man 'in the circumstances', may prevent the test from being wholly objective because the boundary between the external facts and the qualities of the actor is ill-defined.[87] But the expressions 'entirely' or 'wholly' objective have been employed where the ordinary or reasonable person test applies. They were used in Stingel v The Queen in the circumstances of provocation[88] and in R v Wills[89] for unlawful and dangerous act manslaughter.

71 The objective test for criminal negligence, since Nydam v R,[90] has involved consideration of whether, inter alia, the act which caused the death involved such a great falling short of the standard of care which a reasonable man would have exercised that the doing of the act merited criminal punishment.[91] The Full Court considered that such a formulation was consistent with the objective test of manslaughter by unlawful and dangerous act approved by the House of Lords in DPP v Newbury.[92] The formulation of the objective test in Nydam's case is illuminating in part because of the importance that was attached to the need for correspondence between the tests for dangerousness for negligent manslaughter and unlawful dangerous act manslaughter.[93] The objective element in unlawful and dangerous manslaughter requires proof that a reasonable man in the accused's position engaging in the very conduct in which the accused engaged would have realised that he had placed or might have placed another in danger of death.[94]

72 The same objective test is to be applied to the offence of conduct endangering persons contrary to s 24 of the Act:[95] that is, would a reasonable person in the position of the accused engaging in the very conduct in which the accused engaged have realised that the conduct placed or might place the victim in danger of serious injury? The act must be one which exposes another to an appreciable risk of serious injury.[96]

73 In R v Mayne[97] Bray CJ, with whom Hogarth and Jacobs JJ agreed, touched on the English 'wholly objective' test in dealing with the question whether it was necessary to direct the jury that the essence of the offence of dangerous driving was 'the act of driving in a manner which any ordinary person in the situation of the driver would recognize as dangerous'. Bray CJ observed:

The quotation in the third ground of appeal comes from the judgment of the Full Court in R v Coventry. The High Court refused special leave to appeal from that decision. Some of the remarks of the learned Judges of this Court were criticized but not the passage in question. In this State it has been customary ever since to direct juries in the sense of that quotation; see for example Reg v Duncan. In England apparently the test of dangerous driving is entirely objective. The view taken there apparently is that even dangerous driving caused by the 'slightest negligence' (see Reg v Ball) is enough. That, however, has never been the rule here, and I think that when Parliament enacted s 14a in 1952 it impliedly accepted and adopted the rule laid down in Coventry's case.[98]

74 We agree that the 'objective' nature of the offence in Australia is to be contrasted with what Bray CJ described as the 'entirely objective' situation in England. At least since Coventry was decided, recourse to the ordinary person has been a part of the objective test. The approach in the United Kingdom is plainly inconsistent in principle with Coventry, McBride and Jiminez, with decisions of intermediate Courts of Appeal and with directions already given in a number of Supreme Court trials in this State. In Victoria the regime of statutory driving offences to which we have referred rests upon varying degrees of departure from the standard of care of a reasonable and prudent driver. In the case of dangerous driving, allowance is made for the 'ordinary risks of the road'. This approach reflects Parliament's intention. It is apparent in s 64(3) of the Road Safety Act, which permits the Court to consider the alternative lesser offence of careless driving contrary to s 65 where it is not satisfied of the guilt of a driver charged with driving in a manner dangerous contrary to s 64. The legislature contemplated that not all departures from due care and attention, are necessarily to be classified as dangerous.[99]

75 Since Coventry was decided, it has been customary to distinguish departures from the proper standard of care as may be regarded as ordinary risks of the road, even if they would found a civil action, and dangerous driving which exposes other road users to such risks, as 'any reasonable person in the situation of the driver ought to recognize as a real danger to the public.'[100]

76 In Kroon v The Queen[101] King CJ, with whom Mohr J agreed, also tested the character of dangerous driving by asking whether the driver 'ought to have appreciated the danger' or 'whether a reasonable person in the situation of the accused would have appreciated the danger'.[102] Kroon was referred to with approval in Jiminez on a related point. The objective test was implicitly engaged in both the plurality reasons[103] and those of McHugh J[104] where reference was made to what the driver 'ought to have known' as a basis for inquiry as to whether the driving was dangerous. The 'reasonable person in the situation of the driver' test was the subject of examination in R v Hendrikse.[105] The Court of Criminal Appeal approved the reasoning of White J in Kroon which referred to any ordinarily competent, alert and careful driver without idiosyncratic characteristics or physical or mental defects. And in the Victorian Supreme Court, Cummins J in R v Towle,[106] Kaye J in R v Scholl[107] and Weinberg JA in R v Kalwig[108] have each applied the standard of the ordinary or reasonable person driving in the same circumstances as the accused.

77 To determine whether driving was dangerous calls for the application of the objective test to all of the circumstances relevant to the manner of driving. Authority and principle dictate that the test remains an objective one which enquires whether an ordinary or reasonable person in the driver's situation would regard the manner of driving as creating an appreciable risk to the public. For example, the speed at which a motor vehicle is driven can itself constitute a danger to the public where it greatly increases the risk of accident. That will more likely be so where it is a speed greatly in excess of that permitted by law. But driving a vehicle within the speed limit prescribed by law will not necessarily mean that a reasonable person would not regard that speed or the manner of driving as dangerous.[109] Conversely, though members of the public generally do not anticipate that speed limits will be ignored, there may be circumstances where a reasonable person would not conclude that driving at a high rate of speed well in excess of the speed limit has created a real potential for danger.[110]

78 Thus for driving to be in 'a manner dangerous to the public', it must be such that an ordinary or reasonable (if there be any difference) person in the situation of the driver would recognise it as involving an appreciable risk of serious injury or death to other users of the road; a real and potential danger which exceeds the ordinary risks of the road which may include a lack of due care and attention. It involves a serious breach of the proper management and control of the vehicle, being more than an ordinary and everyday occurrence involving a breach of the road rules or a lack of due care sufficient for a civil negligence claim. But it involves less than the gross negligence and great falling short of the standard of care which a reasonable person would have exercised in the circumstances which is required for culpable driving.

79 We consider that each of the following matters should be dealt with in a direction to the jury where either the offence of dangerous driving causing death or serious injury is to be considered. The guidelines cover the nature of the danger and the degree of risk which it creates. It is the minimum conduct sufficient to establish the offence of dangerous driving. It is of course a question for the individual trial judge as to how the matters are expressed. What is clear is that they should not be considered as some form of mantra that must be recited verbatim.

80 It must be made clear to the jury, in appropriate language, that before the jury can convict of dangerous driving, it must be satisfied:

1. That the accused was driving in a manner that involved a serious breach of the proper management or control of his vehicle on the roadway such as to merit criminal punishment.[111] It must involve conduct more blameworthy than a mere lack of reasonable care that could render a driver liable to damages in civil law.
2. That the breach must be so serious as to be in reality, and not just speculatively, potentially dangerous to others who, as members of the public, may at the time be upon or in the vicinity of the roadway.
3. That the manner of driving created a considerable risk of serious injury or death to members of the public.[112]
4. That the risk so created significantly exceeded that which is ordinarily associated with being on or near a highway.
5. That in determining whether the manner of driving was 'dangerous' the test is an objective one. Would a reasonable driver[113] in the circumstances of the accused have realised that the manner of driving involved a breach of the kind discussed in paragraphs 1 and 2 , and also gave rise to the risk identified in paragraphs 3 and 4.

81 In any case where dangerous driving causing death is left as an alternative to culpable driving, or where charges of dangerous driving causing serious injury and culpable driving are tried together, the offence of dangerous driving must be adequately distinguished from culpable driving. The jury should further be told that dangerous driving, though a serious offence, involves conduct which is less blameworthy than culpable driving. It should be told that while dangerous driving necessarily involves criminal negligence, it need not, like culpable driving, be grossly negligent, but as stated above, it must involve a serious breach of the proper management or control of the vehicle on the roadway. Unlike culpable driving it does not require proof of a high risk of death or serious injury, but rather only a considerable risk thereof.

82 Any charge must be tailored to the particular circumstances of the case. Although strict adherence to the precise language used in these guidelines is not required, it is important that the jury has brought home to it the points set out above.

The trial judge's directions as to culpable driving and dangerous driving

83 We turn to an examination of the directions given by the trial judge. No complaint is made about his directions in relation to the count of culpable driving. They were given in the terms dictated by R v De'Zilwa.[114] But it is necessary to refer to some aspects of those directions because complaint is made that the jury was left unable to distinguish between the requirements of culpable driving and dangerous driving.

84 The learned trial judge contrasted the level of negligence necessary to constitute culpable driving, namely a failure 'unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case',[115] with the duty of every person to take reasonable care for the safety of others, which his Honour described as 'the civil law of negligence on the highway'. His Honour said:

In this case the Crown must prove that the accused failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all of the circumstances of the case. To prove the forbidden act of driving in this case the Crown must prove not merely that the accused failed to exercise reasonable care for the safety of others, but this departure from the standard of care owed to others [was] such that it deserves to be called a gross departure from that standard.

In order to prove a gross departure from the standard of care the Crown must prove that the driving or the riding of the accused involved a great falling short of the standard of care which a reasonable person would have exercised in the circumstances and involved a high risk [that] a death or serious injury would follow.

So that the Crown must prove a falling short of the standard of care of such a nature as to go beyond the matter of mere compensation by way of damages and to be so great as to amount to a crime against the state deserving of serious punishment. I gave you a shorthand version of that at the beginning of this trial but I emphasise that the Crown must show that the riding in this case was a gross departure from the standard of care, a great falling short of that standard of care, which a reasonable person would have exercised in the circumstances, and involved the high risk of death or serious injury would follow.

85 The learned trial judge then reminded the jury that it was the defence case that whatever the speed at which the jury found the applicant to be travelling, it did not involve a gross departure from the standard of care required of a motorcyclist. His Honour also reminded the jury that it was the Crown case that even the lower speed estimated by the defence expert was sufficient to establish a gross departure from the standard of care.

86 His Honour then gave the jury a direction in relation to the alternative count:

Section 319 is as follows:

A person who by driving a motor vehicle at a speed that is dangerous to the public, having regard to all the circumstances of the case, causes death to another person, is guilty of an indictable offence.

Again, an indictable offence merely means one trial before a judge and jury.

Section 422A of the Crimes Act so far as is relevant:

If on the trial of a person charged with an offence of culpable driving causing death the jury are not satisfied that he or she is guilty of the offence charged, but are satisfied that he or she is guilty of an offence against s 319

• that is dangerous driving causing death -

the jury may acquit the accused of the offence charged and find him or her guilty of the offence against s 319.

In other words if you were to acquit the accused of the charge on a presentment of culpable driving, you must then go on to consider the alternative count by statute of driving a motor vehicle at a speed that is dangerous to the public, having regard to all the circumstances.

So that the question in regard to this charge, that is driving at a speed dangerous to the public is whether in the judgment of yourselves as the jury the speed at which the accused was driving viewed objectively - I underline the word objectively - amounts to driving at a speed dangerous to the public. The question is not whether the accused intended to ride, or appreciated that he was riding at a speed dangerous to the public, but whether in your judgment, that is the judgment of the jury, a reasonable person in the situation of the accused would have appreciated that he was riding at a speed dangerous to the public. So that the test is an objective one, not what is sometimes called a subjective. It is what a reasonable person in the situation would or should have appreciated that he was riding at a speed dangerous to the public.

The [crime is] committed by the act of driving or riding in a manner which any reasonable person in the situation of the rider would recognise as dangerous in the sense that it involved a risk of serious injury or death to others is one which exceeds the ordinary risks of the road and amounts to a real danger to the public. Ordinary risks of the road include those arising from the sort of faulty driving and lack of care which may be expected due to human frailty from time to time from ordinary drivers or riders.

The sort of driving or riding which constitutes this crime is more serious than that. It is driving or riding which a reasonable person in the situation of the rider would understand to be such as would give rise to a serious risk of death or injury to members of the public, going beyond the ordinary risks of the road. It is driving or riding which is therefore fit to be regarded as a serious crime.

If the driving or riding, although negligent you might say, does not go beyond what might fairly be regarded as an ordinary risk of the road, a crime of causing death by dangerous driving or riding is not committed whatever else it might be said about it.

You will note that both s 319 [sic] that is the culpable driving section, and 319, the dangerous driving section, both refer to 'all the circumstances of the case'. Thus in assessing the evidence you need to give consideration to matters such as the road configuration, the state of the traffic, the time of the day, the general traffic situation at the time, the visibility, and any other matter which from the evidence you accept affects the circumstances of the case.

I should add in one respect that merely exceeding the speed limit need not of itself compel a finding of guilt of one or other or either of these alternative charges. But of course you will consider whether the extent of the excess speed, depending on your view of the evidence, satisfies you beyond reasonable doubt in the case of the count on the presentment as to whether there was gross negligence on the part of the accused or whether objectively speaking it was a speed dangerous to the public as I have sought to explain.

87 The trial judge drew attention to the fact that it was an objective test, explained the meaning of the term 'dangerous' and sought to contrast it with mere negligence or the ordinary risks of the road. Having immediately before given the jury a direction on the meaning of culpable driving, his Honour did not regard it as necessary to further contrast the differences in degree between the conduct constituting culpable and dangerous driving.

88 The applicant complains that the trial judge's explanation of the meaning of dangerous was confusing and erroneous and points to the different and inconsistent phrases employed by the trial judge of 'a risk of serious injury or death to others...[being] one which exceeds the ordinary risks of the road and amounts to a real danger to the public'; and 'a serious risk of death or injury to members of the public, going beyond the ordinary risks of the road'. The trial judge having transposed 'serious' from injury to conduct, counsel for the applicant submitted that either explanation of the risk, or the combination of the two, was virtually identical with 'the high risk of death or serious injury' which the jury had been told was applicable to culpable driving. Counsel contended that the explanation of the fault element for dangerous driving did not accord with the test approved by the High Court in Coventry of a 'risk of injury to others which exceeds the ordinary risks of the road'[116] so as to reflect an objectively lower level of culpability than the 'gross negligence' required for culpable driving. Accordingly, counsel submitted, by reason of the failure to sufficiently discriminate between the elements of the two offences, the jury had not been left with any real alternative offence.

89 As the trial judge noted in his report to the Court, this was the first occasion that s 319 had been invoked and a charge to a jury required. Despite the fact that the trial judge had no guidance from this Court as to the appropriate directions, we respectfully consider that the directions which his Honour gave were adequate to withstand successful appeal.

90 The use of the term 'serious risk of injury' was an acceptable way of conveying to the jury that the degree of risk must exceed the ordinary risks of the road. It did not in our view obscure the differences in the level of culpability of the offences created by ss 318 and 319 of the Crimes Act. In our view, when considering the summing up as a whole, the trial judge appropriately distinguished between (1) the departure from the proper standard of care which may be regarded as an ordinary risk of the road, (2) driving in a manner dangerous to the public and (3) the gross negligence required for culpable driving.

91 None of what we have just said, we emphasise, derogates from our conclusion, expressed at [80] as to the desirable content of a s 319 direction. Rather, it is to say that his Honour's direction sufficed - a substantial achievement given the difficulty of the problem.

92 If, contrary to our view, the trial judge did fall into error, we are of opinion that nothing he said in the course of the direction as to the alternative offence could have misled the jury's consideration on the count of culpable driving - on which it returned a verdict of guilty.

93 The trial judge directed the jury in these terms:

Of course in respect of either count, because they are separate counts, you will consider the evidence separately relating to each count, depending of course on your view on count 1, that is the culpable driving count. If you are not satisfied beyond reasonable doubt as to the Crown's proof of the elements of that count, you would then go on to consider the alternative of dangerous driving. If you are not satisfied beyond reasonable doubt of the matters which I have described as being that which you must consider in respect of the count of dangerous driving, you would acquit the accused. I should go back and just say again that it is an alternative. If of course your verdict was guilty on the count on the presentment, you would not need to consider the dangerous driving count.

94 His Honour's direction on the culpable driving count was, as we have said, unexceptional. Once the jury had concluded that it was satisfied of the applicant's guilt on the more serious charge, the statutory alternative did not fall for consideration. As is the invariable practice, the jury was asked how it 'found' the accused on the count on the presentment. The jury was, therefore, not required to consider or return a verdict on the statutory alternative.[117] Having regard to the content of his Honour's charge, the argument for the applicant that the effect of the judge's direction on the alternative count was apt to conflate that offence with the offence of culpable driving, and so deprive the applicant of the jury's fair consideration of the latter offence, ought not be accepted. It is necessary that the content of the two offences be accurately stated, in part so that a jury can better understand the differences between them when it comes to consider whether the Crown has proved the more serious of them. Although the jury must first consider the more serious offence, its understanding of the practical content of that offence is likely to be informed not only by its elements being accurately described, but by the counterpoint of the content of the lesser offence. But accepting that the direction on the alternative count fell short of what was ideal, we do not accept that it was capable of having the effect for which counsel contended.

95 Some days after the applicant was convicted (but prior to sentence), the applicant's counsel at trial received a card from one of the jurors who had sat on the applicant's trial. On the card was depicted a pit bull dog with barbed wire around its neck. Written on the card were words to the following effect: 'With defence counsel like you, who needs prosecutors.' There were also comments written on the card that related to the expert accident reconstruction evidence which had been called by both the prosecution and defence at trial. The latter comments centred upon the physics evidence that had been led from these witnesses and the fact that this evidence was, in the author's expressed view, 'dodgy'.

96 The applicant's counsel at trial drew the card to the attention of the prosecutor and the judge. Counsel met with the judge in chambers. The judge took the card from counsel. The content of the card gave rise to ground 3 which is in these terms:

1. A fair minded and informed member of the public would in the circumstances of the case entertain a reasonable apprehension or suspicion that at least one member of the jury did not discharge her task impartially thereby leading to a substantial miscarriage of justice.

97 As to ground 3 the learned trial judge reported to the Court as follows:

The author and sender of the card was one of the jurors at the trial. I would infer that she was the dissentient. I wish to say as strongly as possible that I utterly refute the implications contained at least in the first two paragraphs of that card. Any suggestion that [defence counsel] did not act in any other than a professional and competent manner is without foundation. In my view he conducted a difficult defence with considerable skill. I undertook to [defence counsel] to retain this correspondence in confidence which I have, until now, done, that is notwithstanding that this communication arguably contravenes s 78 of the Juries Act 2000. I chose to do nothing about it at that time.

98 Counsel for the applicant submitted that the writing showed that the juror thought very little of defence counsel's qualities as a barrister; and that the juror by sending the card to counsel displayed a level of hostility towards counsel as gave rise to a reasonable apprehension of bias against counsel - and as a consequence against the applicant.

99 We do not stay to consider whether the thoughts of the juror were receivable on the appeal. Assuming that they were, we consider that the submission was without substance.

100 It is evident, as the trial judge reported, that this juror was the dissentient amongst the jurors. The juror's concerns evidence no bias against the applicant. To the contrary, they strongly suggest that it was the juror's view that the applicant was not guilty. The complaint was that his counsel had failed him. The comments do not provide a factual foundation for the ground of appeal. Moreover, it was pure speculation to suggest that anything the juror may have said in support of her view of the facts or her view of the competency of the applicant's counsel in any sense contaminated the jury's deliberations.[118] All that can be deduced from that which is known is that the remainder of the jury apparently did not agree with her view of the evidence.

101 Before leaving this ground, we note that the particular juror contacted this Court's registry and conveyed certain information to registry staff; and that the Director of Public Prosecutions, having been apprised of the matter, directed that there be an investigation pursuant to s 78 of the Juries Act 2000. The outcome of that investigation has no relevance to any matter that we are required to determine on this appeal. In those circumstances we do not regard it as necessary or appropriate to await the outcome of the investigation.

102 We would grant the application for leave to appeal against conviction but would dismiss the appeal.

103 The Director has appealed against the adequacy of the sentence. Counsel for the Director candidly informed the Court that he could submit little that would advance the merit of the appeal and all but abandoned it. He acknowledged that in light of the recent decision of this Court in DPP v King[119] and other like decisions, it could not be said that the sentencing judge had erred in taking into account the serious injuries which the applicant sustained as a result of the accident.

104 The approach taken by counsel for the Director was entirely justified. This was not in our view an appeal which had any prospect of success. The sentencing judge did not make any finding as to the speed at which the applicant was travelling immediately prior to the collision. But even if the speed of the motorcycle had been as great as that contended for by the prosecution, the driving did not fall within the range of the more serious examples of culpable driving which come before the court. The sentencing judge in a careful examination of all of the factors relevant to sentence considered that there were compelling mitigatory circumstances which warranted the compassionate course he followed. We agree.

Postscript. Entry of acquittal in the event that the applicant's conviction should have been quashed

105 In the event that we were in error in our conclusion that there was no substantial miscarriage of justice, a question would arise as to which of the courses set out in s 568(2) of the Crimes Act we should have followed in consequence of a decision to quash the conviction. Ordinarily the preferable course is to direct a new trial be had rather than enter a verdict of acquittal.[120] But the applicant has completed serving that portion of his sentence which was not suspended. In those circumstances, counsel submitted that we should not order a retrial but should enter an acquittal. We did not understand counsel for the Director to have opposed such a course.

106 The power to enter a verdict of acquittal is discretionary.[121] In Director of Public Prosecutions for Nauru v Fowler[122] the High Court said:

The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.

107 There are other factors to be considered in deciding whether or not to order a new trial. The power to order a new trial involves the exercise of a broad discretion. The judgment of Kirby J in Dyers v The Queen[123] includes a comprehensive exposition of the considerations which may be relevant. Amongst the relevant matters to which McHugh J referred to in Jiminez v The Queen,[124] were the period of delay since the events in issue, the amount of any sentence imposed on an accused already served, and the moral culpability of the accused in relation to the alleged offence. Further factors noted in The Queen v Taufahema[125] are whether the accused has been released from custody, whether the ordeal of a further trial would be such that the accused should have to undergo it through no fault of his own, and whether the interests of justice require it.

108 There have been a number of instances where the High Court or this Court has not ordered a new trial where the applicant had served his sentence.[126] That has sometimes been because of the unfairness arising from the time lapse between the date of the alleged offence and the date of any retrial.[127] Where the Crown does not seek a retrial this Court may order a verdict of acquittal.[128] Although it became unnecessary to consider the Director's appeal against sentence, we would, in an informal sense, have taken into account our view that there was no substance in the contention that the sentence was manifestly inadequate.[129] In accordance with the usual practice, were the applicant to be convicted on a retrial, the sentencing judge would not impose a sentence greater than that previously imposed. In those circumstances, had we quashed the conviction, we would have directed that an acquittal be entered.

[1] The offence of dangerous driving causing death or serious injury having only quite recently been introduced, the trial judge did not have the benefit of this Court's consideration of its elements and how it should be differentiated from other driving offences including culpable driving.

[2] R v Kane [2001] VSCA 153; (2001) 3 VR 542, 584 [105], 588 [118]; R v Saad [2005] VSCA 249; (2005) 156 A Crim R 533, 558 [87], 567 [110]; R v DD [2007] VSCA 317; (2007) 19 VR 143, [1]-[4], [30]-[44].

[3] Simpson v Peat [1952] 2 QB 24, 27_; Crispin v Rhodes_ (1986) 40 SASR 202; Illich v Garvey [2001] WASCA 236; (2001) 34 MVR 88.

[4] By s 3 of Crimes (Driving Offences) Act 1967 (Vic).

[5] The section was amended by s 5 of the Crimes Amendment (Child Homicide) Act 2008 (Vic), so as to create different penalties where the driving causes serious injury on the one hand and death on the other.

[6] Law Reform Commission of Victoria, Death Caused by Dangerous Driving, Report No 45 (1992), [31].

[7] [1981] VicRp 68; [1981] VR 717.

[9] Law Reform Commission of Victoria, above n 6.

[10] Nydam v R [1977] VicRp 50; [1977] VR 430, 445.

[11] Department of Justice, Culpable and Dangerous Driving Laws, Discussion Paper (2004) [78]-[79].

[12] Law Reform Commission of Victoria, above n 6, [34].

[14] The genesis of the offence of dangerous driving causing death or serious injury was recently examined by this Court in _DPP v Neethlin_g [2009] VSCA 116; (2009) 52 MVR 422, [25].

[15] And now the offences created by sub-ss 319(1) and (1A).

[16] R v Shields [1981] VicRp 68; [1981] VR 717, 723-4.

[17] R v Lucas [1973] VicRp 68; [1973] VR 693, 701.

[18] [2002] VSCA 158; (2002) 5 VR 408.

[20] [1977] VicRp 50; [1977] VR 430.

[22] R v Mitchell [2005] VSCA 304 [14] (Vincent JA).

[24] In DPP v Towle [2008] VSC 101 Cummins J expressed the view that it is not a useful means of discriminating between culpable and dangerous driving.

[25] R v Scott [2003] VSCA 55; (2003) 141 A Crim R 323, [18] (Winneke P). So, in DPP v Gany [2006] VSCA 148; (2006) 163 A Crim R 322, 330-1, [28] this Court said:

The crime of negligently causing serious injury, contrary to s 24 of the Crimes Act 1958 (Vic), carries a maximum of five years' imprisonment (counts 1-4). Criminal negligence must be of a kind that shocks the conscience and requires some punishment at the hands of the criminal law. R v Newman [1948] VicLawRp 16; [1948] VLR 61. For a negligent act or omission to be criminal it must involve such a great falling short of the standard of care which a reasonable person would have exercised and involves such a high risk that serious injury would follow that the conduct merits punishment under the criminal law. R v Shields [1981] VicRp 68; [1981] VR 717 at 723; Nydam v R [1977] VicRp 50; [1977] VR 430 at 444-445

[26] R v Abdul-Rasool [2008] VSCA 13; (2008) 18 VR 586. Mandie J adopted a similar approach to reckless endangerment contrary to s 24 of the Act in Mutemeri v Cheesman [1998] 4 VR 484.

[28] R v Holzer [1968] VicRp 61; [1968] VR 481, 483; Wilson v R [1992] HCA 31; (1992) 174 CLR 313. In Wilson, the majority and minority judgements differed as to extent of harm which ought be foreseen in order that the offence be made out.

[29] [1911] VicLawRp 58; [1911] VLR 293.

[31] [1938] SASR 79.

[32] [1937] UKHL 1; [1937] AC 576.

[34] [1938] SASR 79, 85-6.

[36] The King v Coventry [1938] HCA 31; (1938) 59 CLR 633.

[37] [1938] 1 All ER 157, 158.

[38] The King v Coventry [1938] HCA 31; (1938) 59 CLR 633, 637. See, to like effect, Starke J, 639.

[39] [1966] HCA 22; (1966) 115 CLR 44, 50.

[40] [1992] HCA 14; (1992) 173 CLR 572.

[43] Department of Justice, above n 11 [29]-[34].

[44] Victoria, Parliamentary Debates, Legislative Assembly, 3 June 2004, 1798.

[45] Ibid; 24 August 2004, 37; 15 September 2004, 120.

[46] [1966] HCA 22; (1966) 115 CLR 44, 50-1.

[47] [1983] 1 NSWLR 658.

[49] Fehlberg v Gallahar [1957] Tas SR 286, 288-9 (Burbury CJ).

[50] R v Lawrence [1982] AC 510, 523 (Lord Diplock); R v Hain [1966] 2 NSWR 142; R v Buttsworth [1983] 1 NSWLR 658, 670 (O'Brien CJ of Cr D).

[51] Ibid 677_;_ Fehlberg v Gallahar [1957] Tas SR 286, 288-9 (Burbury CJ).

[52] [1937] UKHL 1; [1937] AC 576.

[55] [1983] 1 NSWLR 658.

[56] Ibid 677, 682. See R v Hopton (Unreported, NSWCCA, Spigelman CJ, Abadee and Ireland JJ 8 October 1998) as to the need for jury guidance as to the different levels of negligence.

[57] This part of his Honour's charge, delivered in May 1953, was published at (1953) 11 SASR 592, immediately following the report of R v Mayne (1975) 11 SASR 583.

[58] (1975) 11 SASR 583.

[59] Ibid 579 (footnotes omitted and emphasis added).

[60] (1982) 30 SASR 78, 79.

[62] R v Seymour [1983] 2 AC 493, 506-7 (Lord Roskill).

[63] (1982) 30 SASR 78, 79. Pope v Hall was applied in Firth v Prestwood (1987) 44 SASR 427; Owen v Connellan (1991) 53 A Crim R 236; Senior v Police [2005] SASC 88.

[64] Kingman v Seager [1938] 1 KB 397, 399 (Lord Hewart CJ).

[65] Bond v Cocks [1938] SASR 14, 20 (Richards J).

[66] Kelly v Walsh [1929] SASR 481 (Napier CJ).

[67] R v Burnside [1962] VicRp 14; [1962] VR 96, 98 (Sholl J).

[68] Pope v Hall (1982) 30 SASR 78, 79 (Wells J).

[69] It may not be necessary to contrast dangerous driving with culpable driving if the former is the only count on the presentment because the driving to be defined is that which constitutes the minimum necessary for the driving to fall into that category.

[70] Nydam v R [1977] VicRp 50; [1977] VR 430, 455.

[71] R v De'Zilwa [2002] VSCA 158; (2002) 5 VR 408; R v Mitchell [2005] VSCA 304, [8]-[9]; R v Shields [1981] VicRp 68; [1981] VR 717; R v Seymour [1983] 2 AC 493, 499; R v Adomako [1994] UKHL 6; [1995] 1 AC 171, 187-9.

[72] [1982] AC 510.

[74] [2005] UKPC 18; [2006] 1 AC 1.

[76] [1937] UKHL 1; [1937] AC 576.

[77] The concept of 'appreciable risk' is not novel to the Crimes Act. It appears in s 318(2A).

[78] See [18].

[79] 'injury or death', 'risk of injury to others', 'damage more, rather than less serious'.

[80] [1963] 1 QB 412.

[81] (1966) 50 Cr App R 266.

[82] [1963] 1 QB 412, 418.

[83] R v Spurge [1961] 2 QB 205; R v Atkinson (1970) 55 Cr App R 1; R v Gosney [1971] 2 QB 674.

[85] [1966] HCA 13; (1966) 115 CLR 199, 234.

[86] [1943] UKHL 2; [1943] AC 448.

[88] [1990] HCA 61; (1990) 171 CLR 312.

[89] R v Wills [1983] VicRp 80; [1983] 2 VR 201, 212; Nydam v R [1977] VicRp 50; [1977] VR 430.

[90] [1977] VicRp 50; [1977] VR 430.

[92] An objective test is expressly provided for in s 318(2)(b) and (2A)(b) of the Act. It is implicit in (2A)(a) which provides for the 'appreciable risk' of which the driver 'ought to have known'.

[93] R v Besim [2004] VSC 169; (2004) 148 A Crim R 28, 34 [19].

[94] R v Nuri [1990] VicRp 55; [1990] VR 641, 644.

[95] R v Wilson and Carman [2005] VSCA 78, [17] (Batt JA, Buchanan and Vincent JJA agreeing). See also R v Abdul-Rasool [2008] VSCA 13; (2008) 18 VR 586, 596-98, [42]-[48] (Redlich JA).

[96] Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313, 333 and 335.

[97] (1975) 11 SASR 583.

[99] Bray CJ in Mayne expressed a similar view in relation to comparable statutory provisions.

[100] R v Hendrikse [2007] SASC 304; (2007) 98 SASR 571.

[101] (1990) 55 SASR 476.

[103] [1992] HCA 14; (1992) 173 CLR 572, 581.

[105] (2007) SASR 571.

[106] [2008] VSC 101.

[107] (Ruling No 1) [2009] VSC 198; (2009) 53 MVR 1.

[108] [2009] VSC 373, [22].

[109] Mazza v Haime [2000] WASCA 42, [10]-[11].

[110] Owen v Connellan (1991) 53 A Crim R 236, 239.

[111] A momentary lack of attention would not be sufficient, of itself, to constitute such driving.

[112] We have replaced the phrase 'real and appreciable' which appears in some cases with the word 'considerable' which we think will be more readily understood by the jury. The word 'real' adds nothing if the risk is considerable.

[113] We have used the 'reasonable person' rather than 'ordinary person' because it is employed in the case of culpable driving: R v De'Zilwa. But we see no difference of substance between the two concepts.

[114] [2002] VSCA 158; (2002) 5 VR 408, 410 [1]-[3], 422-3 [45], 425 [55].

[116] (1938) SASR 79, 85-6.

[117] AJS v The Queen [2007] HCA 27; (2007) 235 CLR 505 (Gleeson CJ, Hayne, Heydon and Crennan JJ); R v Lavender [2005] HCA 37; (2005) 222 CLR 67, 71 [6].

[118] R v Goodall [2007] VSCA 63; (2007) 15 VR 673, 681.

[119] [2008] VSCA 151; (2008) 187 A Crim R 219.

[120] C Corns 'The Discretion of a Court of Appeal to Order a New Trial or a Verdict of Acquittal' (2006) 30 Crim LJ 343, 346.

[121] See also R v Poduska [2008] VSCA 147; (2008) 50 MVR 495.

[122] [1984] HCA 48; (1984) 154 CLR 627, 630.

[124] [1992] HCA 14; (1992) 173 CLR 572, 590.

[125] [2007] HCA 11; (2007) 228 CLR 232.

[126] Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494; R v Ceylan [2002] VSCA 53; (2002) 4 VR 208; R v Redmond [2006] VSCA 75; Dyers v The Queen (2002) 210 CLR 285, 314-5, [82] (Kirby J).

[127] R v Patton (1995) 80 A Crim R 595.

[128] Griffiths v The Queen [1994] HCA 55; (1994) 76 A Crim R 164.

[129] See Dyers v The Queen (2002) 210 CLR 285, 314 [82] where Kirby J said that where the sentence has been served a new trial will not be ordered 'and a fortiori where an appeal has been brought by the prosecution against that sentence but has been rejected'.