R v Franks [1998] VSCA 100

(i) that the deceased suddenly moved his truck into the path of the appellant's semi-trailer;

..."

31. In support of these grounds Mr. Francis Q.C., who appeared with Mr. Houlihan for the applicant, submitted that the trial had miscarried because the learned trial judge had failed to give adequate instructions to the jury as to the essential issues which the Crown had to prove before they could convict the applicant. He further submitted that the learned judge had failed to give adequate directions in respect of the "defence" made by the applicant to the Crown case and the manner in which the jury should approach the applicant's evidence in determining whether the Crown had proved its case.

34. Before I turn to those submissions it is desirable that I refer to the way in which the case was put by the Crown and the evidence led in support of that case. It was the Crown's case that the applicant had simply driven his semi-trailer into the rear of the slower moving Bedford because he was in a state in which, as the prosecutor put it in his opening address, "his eyes may have been open but his brain was not working". He was in this state, so the prosecutor said, because "he had just driven too far, too long" over the period of the preceding 18 days and the fatigue had accumulated to the point where he was, in effect, an automaton unable to avoid the Bedford ahead of him. In support of that case the Crown led and relied upon a great deal of evidence which was calculated to reconstruct a pattern of driving by the accused over the period of 18 days leading to the collision. This evidence included the production of the applicant's log book, the entries in which were accepted to be incomplete and, in some cases fallacious; a book which the prosecutor described as a "sham"; and evidence of mobile phone records, Shell diesel dockets and relevant "video records" of State transport authorities which were said to be capable of placing the applicant's semi-trailer at various points in Victoria, New South Wales and Queensland during the 18 days preceding the collision. The Crown also led evidence from investigating police of three lengthy records of interview which had been conducted with the applicant early in the morning of the day following the collision, on 25 April 1996 and on 30 April 1997. The Crown relied upon answers given by the applicant during these interviews, many of which were given to questions which seem to me to have been of a "leading" nature, to support its contention that over the period of the 18 days, the applicant had driven for such lengthy periods without appropriate rest that, by the time he approached the point of collision, he was either asleep or in an "automatic" state. Indeed, the final "questions" put to the applicant at the end of a five hour interview on 25 April 1996, reflect the case which was ultimately put by the Crown:

Q. "So, getting back to the day of the collision, would you say that it looks like you're tired when you're driving and that what's happened - you're tired and you've fallen asleep and woken up and you're on - virtually on top of this guy." A. "No, I wouldn't say that." ... Q. "And because you're in this mental state of mind, tiredness, run down, that there's a possibility and I'd say it's not - not a possibility, it's a high probability that your concentration wasn't there. You were unaware of this truck in front of you until the last moment. And you re-acted and braked." A. "I can't see any point in saying any more than what I've already said."

38. Furthermore, in support of the case it was making, the Crown called a Dr. Howarth, who was described as an "expert in driver fatigue", to give evidence of the effect which "accumulated fatigue" can have on drivers' reactions. Finally the Crown relied on evidence of police officers who were stationed at Wangaratta at the time of the collision who gave evidence of their observations of the applicant in the hours following the collision, observations which suggested that he was tired and in need of sleep.

41. It was, thus, the Crown's case that the gross departure from the standard of care of the reasonable driver required by s.318 of the Crimes Act, was to be found in the conduct of the applicant in continuing to drive his vehicle when he was aware, or should have been aware, that he was at risk of falling asleep or of being unable to react to foreseeable contingencies. Indeed, in opening the case, the prosecutor put it this way:

"He had just driven too far, too long and unfortunately killed a young man, and we say that is gross negligence, because you know very well when you are driving, you say to yourselves `Goodness me I'm tired. ... I'm so tired I can hardly keep awake.' And what do you do? Do you have a sleep, or do you have a drink, do you have a rest, do you get out and walk around and so forth? But, see, he didn't; he didn't."

45. Although no particulars were given in the presentment, or elsewhere, of the facts upon which the Crown relied to establish "gross negligence" it was conceded by Mr. Coghlan Q.C. who appeared for the respondent on this appeal, that the case made by the Crown was as I have described it.

48. The applicant's defence to this case made by the Crown was a simple one. He said that he was quite alert, had had ample rest in the 48 hours preceding the collision, and had been unable to avoid the collision. His evidence was that he had first become conscious of the Bedford when he saw it travelling slowly in the emergency lane, that is the lane immediately to the left of the one in which he was travelling. As he approached, it swung without warning into the left lane in front of him leaving him no option but to brake as hard as he could but he was unable to stop before the collision occurred.

51. Although, as I have said, there were other trucks following the applicant, none of the drivers was able to confirm or deny the accuracy of the applicant's evidence. This was because, as the judge pointed out in his charge, "none of them saw, because their vision was masked, what actually happened". The Crown, nevertheless, relied on the fact that none of them had seen the Bedford in the emergency lane. However there was evidence at the trial which, so it was put on the applicant's behalf, tended to support his version of events:

(a) Senior Constable Ralph, who was the first policeman to arrive at the scene, said that he had spoken to the applicant shortly after 8.30 p.m. He had administered a preliminary breath test, which was negative, and had asked what had happened. The applicant had told him that he had been travelling at 100 k.p.h. in the left lane and had seen the Bedford in the emergency lane. Ralph said that the applicant had told him:

"He just came out in front of me ... you know, I hit everything but I couldn't stop." Although the applicant had difficulty in estimating distances between the semi-trailer and the Bedford, this was his consistent version from the time when the collision occurred until the trial.

(b) The truck driver travelling behind the applicant was a Mr. Lieschke. As he approached the point where the collision occurred he was talking on his telephone. He said that he had been travelling behind the applicant's semi-trailer for some time and was gradually gaining on it, over a distance of about 8 kilometres. Because of the gradient in the highway, it would appear that his vision of the semi-trailer as it approached the point of collision must have been limited to about 3.5 kilometres. He noticed nothing aberrant about the behaviour of the applicant's vehicle, either in its position on the road or speed. This, it was said on the applicant's behalf, stood in contrast to the evidence of Dr. Howarth who said that "drowsy" and "dim" drivers have difficulty in keeping to one lane and maintaining a constant speed. She said that drivers in such states tend to lose control so that their vehicles "zig-zag".

(c) Sgt. Bellion of the Accident Appreciation Section gave expert evidence as to the "probable speeds" of the semi-trailer and the Bedford at the time of impact. The lower range of speed which he gave for the Bedford was 36 k.p.h. He also gave evidence that the skid marks left by the semi-trailer indicated that its brakes had been in operation for some 20 metres before the impact.

(d) It was not in contest that the applicant had been in Brisbane for some 16 hours before he left on the 13th February. The applicant's evidence was that he had slept from mid-night on the 12th until about 6 a.m. on the 13th. Thereafter he had fuelled his truck and made phone calls but otherwise was "sleeping or relaxing" until 4 p.m. when he started his home journey. It did not seem to be seriously in contest that the applicant had arrived at Nambucca Heads at about 9 p.m. where he had rested for one hour; that he had driven from Nambucca Heads to Bulahdelah where he arrived at about 1 a.m. on the 14 February; he had spent half an hour there before setting off at 1.30 a.m. for Wyee. He arrived at Wyee at about 2.30 and spent three hours there in the sleeper cabin, and then drove from Wyee to Moorebank where he arrived at about 7 a.m. The Braun company has a depot there. He said that some pallets he had brought from Brisbane were unloaded there and the vehicle was re-loaded. Again, he said, he rested for about three hours before leaving Moorebank at about 11 a.m. He refuelled at Sutton Grange at about 12.15 p.m. and then drove to Tarcutta where he arrived at about 4.15 p.m. He rested there, for a meal, for 45 minutes and then drove to Holbrook, where he again stopped for an hour. His evidence was that, when collision occurred, he was "okay to drive, I was wide awake". He also said that, some few kilometres before the collision, he had observed "radar police" on the median strip of the highway.

61. Against the background of that contest of evidence and the cases made by the Crown and the applicant in respect of it, it is convenient to return to the directions which the judge gave to the jury. In dealing with the elements of the offence alleged against the applicant, his Honour instructed the jury that they had to be satisfied to the requisite standard that the applicant "was driving [the semi-trailer] at the relevant time" and that the death of the [deceased] occurred as a consequence of the collision. His Honour continued:

"The third element, and this of course is the contentious matter, and the critical issue for you to determine, that the accused drove that vehicle ... culpably. That, so far as he is concerned means that he drove the vehicle in a particular forbidden way that I will define for you in a moment. Now the final element the Crown must prove is that the accused person's actions in driving the vehicle in the particular forbidden way caused the death of Mr. Anderson. It is sufficient if the bad driving was a substantial and operative ... cause of the collision or death. The accused's forbidden way of driving does not ..., and I emphasize the word `not' - have to be the sole cause of [the] death."

65. His Honour then instructed the jury as to the meaning of negligence sounding in damages in the civil sense. He continued:

"Now what I have defined is what is used in civil cases to establish negligence. Of course there are very important differences between a civil case in driving, negligent driving, and this criminal trial of culpable driving. In a civil case the standard of proof is different. In a civil case the plaintiff does not have to prove anything other than mere negligence. That is a small departure from the standard of care. But before the accused ... can be convicted here the Crown must establish a much greater falling short of the standard of care which the reasonable person would have exercised in the circumstances than is necessary in a civil case. It is a greater burden. ... You must go on and consider whether such negligence, that is such a failure to observe the standard of care which a reasonable man would have observed in all the circumstances of the case was unjustifiable and to a gross degree. The Crown must prove that his departure from the standard of care was such that it deserved to be called `gross'. ... Did the accused man - and this is the question - fail to a gross degree to observe the standard of care which the reasonable man would have observed in all the circumstances? And it is for you the jury to determine whether the effects of the accused's driving in this case, the facts that you find, deserve to be described as a gross departure from that standard of care."

69. What his Honour told the jury was, as an explanation of the law, basically correct so far as it went. However his Honour did not, at this point in his charge, define for the jury the particular conduct of the accused upon which the Crown was relying to establish what his Honour had called the "forbidden way of driving". It has frequently been said by this Court that it is of little use to a jury to explain the law to them in general terms and then leave them to apply it to the facts of the case before them. The law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applies to the facts of a particular case (Alford v. Magee [1952] HCA 3; (1952) 85 C.L.R. 437 at 466; Bellizia v. Meares [1971] VicRp 78; [1971] V.R. 641 at 644-5; R. v. Anderson [1996] VICSC 17; [1996] 2 V.R. 663 at 668). It was, I think, unfortunate that following the directions to which I have referred the court adjourned until the following morning when his Honour turned to the evidence. He said that he was not proposing to canvass it in any great detail but, in the course of referring to it, the only references to the case made by the Crown and the "forbidden way of driving" were those which follow. In referring to the Crown case, his Honour said:

"It has built up a story and that, it maintains, was driving that was uninterrupted for 18 days, falsely recorded ... and therefore misleading in the accuracy of what it supposedly represents. From this it seeks that you draw an adverse inference with respect to the driver's condition at the time of the accident. Sufficient, it says, the Crown says, to constitute a fatigue which would amount to the gross negligence as required by the charge."

73. His Honour then referred, in a general and compendious way, to the evidence of the witnesses by "groups". In the course of doing so, he said when referring to the evidence of Dr. Howarth:

"The one thing that emerged from the expert, Dr. Howarth's evidence is that there is a progressive accumulation in the creation and development of fatigue. That may well be a common sense conclusion - its relevance to the issues in this case is the picture produced over 18 days. You are looking at a totality and the prosecution relies upon that totality to explain the crisis of the accident as being the end product of the accumulated fatigue. It is not, says the Crown, an isolated happening. It is, says the Crown, part of a continuum."

77. His Honour then indicated that he was proposing to refer to a select few of the questions and answers in the records of interview conducted between the police and the applicant and, by way of introduction, gave the following instructions:

"You must have regard to all that evidence and his answers to the questions. As I have just said, it is clear that the Crown relies upon the issue of fatigue to establish its case. In a sense it is a simple issue. The driver believed, and I will quote some of his answers, it was safe for him to drive even though he acknowledged he might have been tired. You may well recall the questions put to him in the record of interview and in evidence in this Court. You must decide whether Mr. Franks might honestly have believed on reasonable grounds that it was safe for him to drive. It is not what he says, it is what you as the jurors assess his state to be. If you do come to the conclusion that he believed on reasonable grounds that it was safe for him to drive, then of course the prosecution must negate that by the evidence it has adduced. It is an objective assessment by you not a subjective one."

81. It was submitted to this Court that these directions were inadequate to isolate and identify for the jury what it was upon which the Crown was relying to prove the culpable driving. Indeed it was submitted that the directions tended to obscure that issue. For my own part I think there is substance in this submission. Although, as I have said, no particulars were given by the Crown of the conduct said to constitute the gross departure from the standard of care expected of the reasonable person, it is tolerably clear from the material to which I have earlier referred in these reasons that the conduct upon which the Crown was relying to prove that the accused drove "culpably" was his conduct in continuing to drive the semi-trailer up to or shortly before the point of collision whilst he was in a condition where he was aware or ought to have been aware that there was a significant risk of falling asleep at the wheel and/or losing control of the vehicle. I say "up to or shortly before the point of collision" because it seems to me to have been part of the Crown case that the collision occurred either whilst the applicant was asleep or in an automatous state or that he had been in such a state to a point when the "agony of the collision" arose. So long as he was in such a state or endeavouring to handle the crisis created by such state, he could not be guilty of "driving culpably" because his actions were not voluntary (R. v. Carter [1959] VicRp 19; [1959] V.R. 105 at 111; R. v. Kroon (1990) 55 S.A.S.R. 476 at 478; (1990) 52 A.Crim.R. 15 at 16; Jiminez v. R. [1992] HCA 14; (1992) 173 C.L.R. 572 at 577-8, 578-9).

84. However, as King, C.J. said in R. v. Kroon, (1990) 55 S.A.S.R. at 480; (1990) 52 A.Crim.R. at 16:

"Every act of falling asleep at the wheel is preceded by a period during which the driver is driving while awake and therefore ... responsible for his actions. If a driver who knows or ought to know that there is a significant risk of falling asleep at the wheel, continues to drive the vehicle, he is plainly driving without due care and may be driving in a manner dangerous to the public. If the driver does fall asleep and death or bodily injury results, the driving prior to the falling asleep is sufficiently contemporaneous with the death or bodily injury ... to be regarded as the cause of the death or bodily injury."

88. These comments of King, C.J. were made in the context of a case where the appellant had been charged both with the offence of "causing death by dangerous driving" and the lesser alternative of "driving without due care".

91. In this trial the critical conduct upon which the Crown was relying to establish "culpable driving" was not, in my view, sufficiently drawn to the jury's attention by the judge, because he did not tell them that, before they could convict the accused of the offence, they would have to be satisfied beyond reasonable doubt that, at a time sufficiently contemporaneous with the death as to render it an operative cause thereof, the applicant continued to drive his semi-trailer when he knew or ought to have known that there was a real risk that he would fall asleep or lose control of his vehicle. That was, as I understand it, the conduct alleged by the Crown in this trial to constitute the culpable driving and it was only conduct of that type which, in my view, would have warranted a conclusion that the applicant had failed to a gross degree to observe the standards of the reasonable man; that is the "forbidden way of driving" about which his Honour had instructed the jury when dealing with the one ingredient of the offence which was really in issue. To continue to drive a vehicle when one is "tired" or "fatigued", words of wide import, will not necessarily represent a departure from the standards expected of the prudent driver, such as to attract the epithet "gross". In my view it will only become so when the fatigue has reached a point where the driver is or should be aware that continuing to drive poses the risks to which I have referred.

94. As King, C.J. pointed out in Kroon's case (S.A.S.R. at 480; A.Crim.R. at 19), it is always a difficult issue in this class of case whether the driving before sleep amounts to an indictable offence. But, as his Honour said:

"The critical issue is the degree of the accused's departure from the standard of care expected of an ordinary prudent driver."

98. Where the Crown asserts, and the accused denies, that the accused was driving whilst in a state where he was or should have been aware that he was about to fall asleep, it is incumbent on the judge to give careful directions as to the relevant factors in the case which will require the jury's consideration in determining the issue (Jiminez v. R., supra at 580; R. v. Kroon, supra S.A.S.R. at 480; A.Crim.R. at 19). Factors such as the hours of driving, periods of rest, observed behaviour of the vehicle both before and at the point of collision and observations of the accused after the collision are all factors which a jury would be entitled to consider in determining whether to draw the critical inference which the Crown is asking them to draw;

"The crucial question for the jury, if properly directed, would then have been whether they were prepared to infer that, in the totality of the circumstances known to any reasonable person in the situation of the appellant, such reasonable person knew or ought to have known that he might fall asleep. Should he have been aware as a reasonable man of any such warning signs - regardless of his denials? This question of the awareness of a reasonable person in the situation of the appellant should have been at the heart of the case ... ." (per White, J., R. v. Kroon, supra, S.A.S.R. at 492; A.Crim.R. at 30)

102. The only passages in the learned judge's charge which could be said to have directed the jury's attention to what I regard as the real issue in the case are those passages to which I have previously referred, which were unrelated to the directions upon the elements of the offence but were given when dealing generally with the evidence in the case. I agree with the contention of Mr. Francis that those directions were insufficient to identify for the jury the real issue which they had to consider or the factors in the case which were pertinent to that issue. There may be some cases where a judge is relieved of the obligation to carefully identify to the jury what the crucial issue of fact in dispute is because it is patently obvious (cf. R. v. Hurley & Anor. [1967] VicRp 57; [1967] V.R. 526 at 529-30). In my view this case was not one of them. Certainly the jury were not told that, if they found that the applicant was asleep at the point of impact, or for a period before the point of impact, his driving during that period could not, at law, constitute culpable driving; nor were they told that they should focus their attention upon the period of driving preceding that time whilst he was in a state of awareness and responsible for his actions. His Honour, it is true, referred in general terms to the Crown's "reconstruction" of the accused's driving over a period of 18 days and said that the Crown was asking the jury to infer from that evidence that it was sufficient to "constitute a fatigue", at the time of the collision, which "would amount to gross negligence". Further when dealing with the evidence of Dr. Howarth, his Honour told the jury that it demonstrated that a "progressive accumulation" and "development" of fatigue could occur over a period and that was relevant "to the picture produced over 18 days"; and that the prosecution was relying upon that "totality" to explain the "crisis of the accident as being the end product of the accumulated fatigue".

105. Quite apart from the fact that these directions did not isolate for the jury what, in my view, was the critical issue which they had to decide nor direct the jury's attention to the evidence, both for and against, which bore upon that issue, it seems to me that they carried with them the risk that the jury might well have taken them to mean that, if they were satisfied that the accused's pattern of driving over the preceding 18 days had caused him to become fatigued, that conduct in itself could amount to "culpable driving causing death".

108. It was also erroneous in my view for his Honour to have told the jury that, in considering the "simple issue" of "fatigue", they could take into account whether the accused "might honestly have believed on reasonable grounds that it was safe for him to drive". Quite apart from the fact that the jury were not directed to the time at which the accused might have held such a belief, it was simply not relevant to the establishment of the offence created by s.318 of the Crimes Act, at least where the offence is alleged to have been constituted by "grossly negligent driving", for the jury to determine whether the accused had an honest belief that it was safe for him to drive or whether that belief was based on reasonable grounds. It seems that his Honour was induced to give such a direction as a consequence of the decision of the High Court in Jiminez v. R., supra at 582, where the Court held that a "defence" of "honest and reasonable mistake" would be available in a charge of "causing death by dangerous driving". Although such a "defence" can be raised to a charge which depends for its proof upon the Crown establishing that the relevant driving was objectively dangerous, it cannot in my view have any relevance to an offence which depends for its proof upon the establishment that the relevant driving of the accused departed so far from the standard of care expected of the reasonable and prudent driver that it amounted to "gross negligence". Although Mr. Francis sought to argue before this Court that such a "defence" could be raised to the charge in this case, and that the judge had misdirected the jury in respect of it, I cannot accept that contention. The misdirection is to be found in inviting the jury to consider the beliefs of the accused. In a case where it was being asserted by the Crown that the accused had driven for excessive periods over 18 days and had falsely and inaccurately recorded the extent of that driving, an invitation to the jury to consider generally the honesty and reasonableness of the accused's beliefs was calculated to divert the jury's attention from the focal issue in the case; an issue which was quite unrelated to his beliefs, whether they were honest or dishonest, reasonable or unreasonable, or otherwise.

111. There was another and related criticism of the learned judge's directions upon which Mr. Francis laid emphasis. He contended that his Honour had failed to adequately direct the jury as to the "defence" made by the applicant to the Crown's allegations and had failed to properly instruct them upon the manner in which they should approach that "defence".

114. The applicant gave sworn evidence that he was wide awake as he drove towards the point where the impact occurred and was in no way overcome by drowsiness. He said that the collision was "unavoidable" because the Bedford, which he had first noted travelling slowly in the emergency lane, had suddenly swung without warning into the lane in which he was travelling. Although he immediately applied his brakes he could not avoid his vehicle from colliding with the rear of the Bedford. This version of events he had consistently given from the time when he had been first questioned at the scene by Senior Constable Ralph. He had maintained it throughout persistent, and what appears to have at times been hostile, questioning by police over a period of more than one year, leading to his final comment after more than 1400 questions in the interview of April 1996 that "I cannot see the point in saying any more than what I have already said".

117. The applicant's version, although it could not be verified, nor refuted, by any eye-witness, was not without some support to be found in the evidence led at the trial. Whilst much was made by the Crown of the "reconstruction" of events over 18 days, the fact remained that in the approximate 44 hours which immediately preceded the collision, the applicant had not been driving during at least 24 of those hours. The applicant said that he had been sufficiently alert to notice a police "radar patrolman" on the highway only a few kilometres from where the accident had occurred, who had also been noticed by other drivers. No following driver suggested that there was anything about the behaviour of the applicant's semi-trailer up to the point of collision which suggested a lack of control. Sgt. Bellion's evidence, if taken at its most favourable from the applicant's point of view, suggested that, at impact, the Bedford was travelling at a slow speed somewhat inconsistent with it having been travelling for over two kilometres in the traffic lanes of this open highway. Nor was it open to question that the brakes of the applicant's vehicle had been in operation for some 20 metres before the impact. The evidence also established that the applicant was affected neither by alcohol nor by drugs.

120. The facts of this case from the applicant's point of view therefore stood in contrast to other cases such as Kroon (supra), Jiminez (supra), Horvath (supra), and R. v. Hinz [1972] Qd.R. 272 where the vehicles concerned had suddenly and without explanation deviated from their intended paths and had either gone onto the incorrect side of the road or left the road. In those cases, as it seems to me, it was much easier to draw the inference that the driver for some reason, probably sleep, had lost control of the vehicle than it was in this case where the Crown was contending that the applicant ought to have deviated the vehicle, but had not, from its intended path of travel.

123. It is against that background that his Honour's directions should be assessed. In the course of dealing with the evidence of the following drivers, his Honour said:

"Because they are clearly behind the trucks concerned, they cannot see the precise actuality but rather give evidence of the consequences of the actuality and this evidence of course points to one of the facts in dispute and upon which, as I have said, the defence relies, that is and it is entirely a matter for you, whether the cattle truck was in fact in the emergency lane and whether it just moved out into the path of the accused truck. I will have something more to say about that."

The "something more" to which his Honour alluded came in the concluding passage of his charge. He said:

"There only remains one other matter I want to raise with respect to the evidence and it relates to the accused's version of the emergence of the cattle truck from the emergency lane. That again is a matter for you. If you accept that evidence then you must do so in the light of, and as a consequence of, the evaluation and interpretation of the evidence regarding the impact. There is no doubt in this case that the travelling in the emergency lane is a source of conflict. You should not, in my view - and it is only my view and you can reject it - be bound by the times before the accident. They have, and I have repeated this with respect to Mr. Anderson's evidence, they have been but estimates about such and such a time. In my view to try to pin each event to a precise time is not going to assist your deliberations because, and for the very reasons I put to you yesterday, the suddenness, the brevity, the quickness of it all, precision is not there to be found and you are not seeking the truth."

129. Apart from a brief description of the defence case given at the outset of his instructions upon the evidence, these appear to have been the only directions given by the learned judge about the evidence given by the applicant and the manner in which the jury were to approach that evidence. It is put on the applicant's behalf that they were wholly inadequate because not only did they fail to put the applicant's defence to the case being made against him by the Crown properly and with reference to the supporting evidence but, more importantly, they did not bring home to the jury the manner in which that evidence should be used by the jury in determining whether they could be satisfied, to the appropriate standard, that the Crown had proved its case.

132. Once again, in my view, the submissions made on behalf of the applicant have substance. This was a case where the evidence given by the applicant as to manner in which the collision occurred was entirely opposed to the case which was being made against him by the Crown. He was entitled to have his evidence fully and fairly put to the jury together with such factors as were to be found in the evidence which supported or might have supported his defence. The directions to which I have referred did not do that. They were cryptic in the sense that they advised the jury that they could only "accept" the applicant's evidence "in the light of, and as a consequence of the evaluation of and interpretation of the evidence regarding the impact". It is difficult to know what the jury would have made of that instruction.

135. Mr. Francis also submits, in my view with some force, that these instructions to the jury did not fully and fairly put the applicant's case because the only allusion in them to the evidence potentially supportive of that case was to the evidence of the deceased's father, upon whose evidence as to the time of the deceased's departure from the farm the applicant was relying to support his contention that the deceased must have stopped on the highway for some purpose. It was submitted that his Honour only alluded to that evidence in a dismissive way by suggesting to the jury that they should reject the inferences which the applicant had invited the jury to draw from it.

138. It is, of course, true that a trial judge does not have to draw to the jury's attention, in the course of his charge, all the matters raised by the evidence; nor is he obliged to repeat to them all the arguments which counsel have made on that evidence. However he does have an obligation to put before them adequately and fairly the case being made by the accused. In this case I have formed the view that his Honour's directions did not fulfil that obligation. There were, as I have already noted, matters in the evidence which were capable of supporting the case which was being made by the applicant but nowhere in the course of the directions was the jury's attention drawn to them, nor any reference made as to how those factors might impact upon the case being made by the Crown. Of course, the movement of the Bedford upon the roadway immediately before impact was only one of the factors, albeit an important one, upon which the applicant was relying to rebut the particular allegation of "gross negligence" made by the Crown.

141. Nor, in my view, was it appropriate for the learned judge to have told the jury that it was "entirely a matter for them" to accept or reject the applicant's version of how the collision had occurred, without giving them some assistance as to how the accused's evidence might impact upon the discharge by the Crown of its onus of proof. The onus of proving that the applicant's "grossly negligent driving" was a substantive and operative cause of the death of the deceased remained with the Crown from first to last. The applicant's explanation of how the accident occurred was part of the evidence which the jury had to consider in determining whether that onus had been discharged. The applicant had no onus of proving that the collision occurred in the way in which he said it had. In the light of the judge's earlier directions to them, the jury would have accepted that they were at liberty to give whatever weight they thought fit to the evidence of the applicant and were entitled to treat whatever remarks the judge made about his evidence as a "comment" which they could ignore if they chose. His Honour had earlier told the jury:

"I do not know whether there is a black-board in the jury room here or not. Somewhere it ought to be written, `It is entirely a matter for you'. And that particular expression or sentence may well be repeated by me, because any comment I make is simply comment. It is a matter for you. You make a decision as to what weight you give that evidence and in the light of the records of interview."

145. However, because the applicant's explanation was wholly "at odds" with the case the Crown was making, the jury should have been told that they were bound to consider what the accused had said as to how the accident occurred and that, if at the end of the day, they considered that it was a reasonable possibility or, put another way, that it raised a reasonable doubt in their minds about the Crown's version of events, the applicant was entitled to the benefit of that doubt (cf. R. v. Spurge [1961] 2 Q.B. 205 at 212 per Salmon, J. (as he then was); R. v. Hinz, supra, at 275-6 per W.B. Campbell, J.; R. v. Kroon, supra, A.Crim.R. at 30 per White, J.). To tell the jury that it was "entirely a matter for [them]" to accept or reject the accused's explanation seems to me to have left them at large on an issue which was central to the Crown's onus of proof and leaves open the possibility that the jury may have convicted the applicant even though they regarded the applicant's explanation of how the collision occurred as a reasonable possibility (cf. per McHugh, J. in Jiminez v. R., supra, at 589).

148. For the above reasons, it is my view that the trial has miscarried and that grounds 8, 9, 10 and 12 of the grounds of appeal have been made out. Even though counsel for the applicant at trial only took a limited exception to the judge's directions given in respect of the failure to put the defence and did not, at least so far as the transcript indicates, press for a re-direction in respect of the other matters to which I have referred, it is my view that the misdirections were so material as to lead to the conclusion that the applicant has not had a trial according to law.

151. The conclusion to which I have come makes it strictly unnecessary for me to deal with the other grounds of appeal, save grounds 1 and 6. These grounds are:

"1. The verdict of the jury was unsafe and unsatisfactory."

"6. The learned trial judge erred in rejecting the submission of the accused that there was no case to answer on the count of culpable driving in that the evidence led by the Crown was incapable of supporting any reasonable inference that the fatigue of the accused was the proximate cause of the collision ..."

Each ground was based on the proposition that the evidence led by the Crown was incapable of proving the case which the Crown set out to prove against the applicant. I do not accept those arguments. Properly instructed, it was open to a reasonable jury to have found on the evidence that, at a time proximate to the collision, the applicant was continuing to drive his vehicle when he was aware, or should have been, that his condition was such that there was a real risk that he would fall asleep or lose control of his vehicle so as to be incapable of avoiding foreseeable risks which might arise and that, in doing so, his conduct represented such a departure from the standard of care expected of the prudent driver as to amount to "gross negligence". I have already referred sufficiently to the evidence which, in my opinion, was capable of supporting such an allegation and it is unnecessary to repeat it. I would, accordingly, reject these grounds of appeal.

157. For the reasons given I have come to the conclusion that the appeal should be allowed and that, unfortunate though it may be, there should be a re-trial on the count of "culpable driving". I agree with Batt, J.A., whose reasons I have had the advantage of reading in draft form, that upon any such re-trial, the Crown would not be precluded from contending, in the alternative, that the grossly negligent driving consisted of a failure to keep a proper look-out.

162. Had the applicant's sole complaint been that the instructions to the jury did not adequately summarise his case, I should have hesitated to upset the verdict. I am well satisfied, however, that the learned judge's charge gave an insufficiently clear instruction to the jury about the ingredients of the Crown case that required proof beyond reasonable doubt in order to sustain a conviction.

165. There was a strong Crown case to be put but it was neither simple nor straightforward: it by no means spoke for itself. The Crown relied on the appellant's driving negligently in that he failed "unjustifiably and to a gross degree" to observe the standard of care prescribed by s.s.(2)(b) of s.318 of the Crimes Act 1958. Had this been a civil case it is difficult to suppose that precise particulars of the alleged shortcomings of the driver against whom negligence was alleged would not have been sought and given, and that the jury would not have been instructed strictly by reference to them. Remarkably, particulars of that kind were apparently neither sought from nor given by the Crown in this case. Perhaps, in a criminal trial, that is not altogether unusual, but I cannot help thinking that the want of a precisely charted course for the Crown was unfortunate in this one. The incident in which the deceased suffered his misfortune was at once so obviously gross and grievous that an inference by the jury of some fault on the part of the applicant was little short of inevitable. It was necessary, however, that the jury should have been exactly directed by the judge with respect to the applicant's acts and omissions on which the Crown relied in order to prove, as a crime, a failure to a gross degree to observe the appropriate standard of care in his driving of the semi-trailer.

168. The judge's instruction to the jury, in effect, that they were at large to decide that the applicant's driving when fatigued could constitute gross negligence was a misdirection. So also was the instruction that the jury "must decide whether [the applicant] might honestly have believed on reasonable grounds that it was safe for him to drive". This was not an issue in the case; and to continue by way of instruction to the jury that "If you do come to [the] conclusion that he believed on reasonable grounds that it was safe for him to drive, then of course the prosecution must negate that by the evidence it has adduced" was, I am obliged to say, calculated to confuse the jury as to the onus of proof.

171. Having had the benefit of reading the reasons that the learned President has prepared, I agree with those assigned by him for the conclusion that these misdirections vitiated the trial. Regrettable though the result may be, I am constrained, therefore, to agree in the view that the conviction must be set aside and a new trial ordered. I concur also with the other members of the court that, on a re-trial, it would be open to the Crown to contend, alternatively, that the applicant's grossly negligent driving was referable to his failure to keep a proper lookout.

176. Having had the benefit of reading in draft the reasons of the President, I am persuaded that the trial of the applicant for culpable driving miscarried in the respects identified by the President and that this is not a case where the limited exception taken to the charge enables the proviso to s.568(1) of the Crimes Act 1958 to be applied.

179. I must own to some hesitation on the question whether the defence case was properly put to the jury by his Honour. That case was that the Bedford pulled out suddenly from the emergency lane into the next lane so close in front of the applicant that the collision was unavoidable. The essence of the case and of the applicant's evidence was undoubtedly put in the first of the three relevant passages quoted by the President, even if the other passages were somewhat dismissive of the case. In addition, the jury could not have been unmindful of the factual submissions in support of that case made by counsel for the applicant in his one-hour address on the afternoon on which his Honour began his charge, a charge which continued for only about half an hour on the next day. It is true, too, that a trial judge is not obliged to repeat all the points made by defence counsel or to conjure up considerations in favour of the defence case. Nevertheless, the judge neither gave any details of the applicant's evidence nor mentioned (even by way of referential incorporation of counsel's address) any of the considerations that might be advanced in support of the defence case. Weighing everything up, I think that his Honour's treatment was inadequate: the charge lacked balance.

182. I am clear that the charge was defective in failing to instruct the jury that it was for the Crown, in seeking to have the jury accept its largely circumstantial case, to exclude, beyond reasonable doubt, as an explanation of the collision the version given by the applicant: Knight v. The Queen [1992] HCA 56; (1992) 175 C.L.R. 495 at 502-503 and 505, and Cutter v. R. [1997] HCA 7; (1997) 71 A.L.J.R. 638, besides the cases specific to culpable driving and like offences cited by the President. In expressing that view I acknowledge the sufficiency of his Honour's earlier general directions as to inferences and circumstantial evidence, but I consider that, whatever might otherwise have been the position, the effect of those directions was nullified by his Honour's statements in the second and third of the relevant passages quoted by the President that it was, or was entirely, "a matter for you" to accept or reject the defence version.

185. Having regard to the considerable discussion during argument of the alternative I am about to mention, I would add, for the assistance of the judge presiding at any re-trial, that, in my view, on such a re-trial it will be open to the Crown, which, it will be recalled, had not given particulars of the gross negligence, to contend in the alternative that the grossly negligent driving consisted in a failure to keep a proper look-out while travelling at speed on a straight stretch of well-engineered road with a clear view from an elevated cabin when visibility was good. I am of this view notwithstanding that the Crown did not put that alternative case in the trial earlier this year, because the alternative stood out as a distinct possibility on the very facts which the Crown proved and was really before the jury, because it is not inconsistent with the case the Crown then put and because it does not adopt a new legal construction of the facts. King v. The Queen [1986] HCA 59; (1986) 161 C.L.R. 423 at 433 and Jiminez v. The Queen [1992] HCA 14; (1992) 173 C.L.R. 572 at 590 are, I consider, distinguishable.