R v Franks [1998] VSCA 100

R v Franks [1998] VSCA 100 - VSCA 1998 case summary — Zoe

[6]

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:

[16]

(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.

[38]

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.

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Before

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Judgment (67 paragraphs)

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Cases Cited (1)