R v Franks [1999] VSCA 39

Court of Appeal (Vic)|1999-04-08|Before: WINNEKE, P., CHARLES and CALLAWAY, JJ.A.

The applicant, who was born on 6th November 1954, was the driver, on 14 November 1996, of a fully-laden MAN semi-trailer motor vehicle weighing approximately 43 tonnes, when it ran into the rear of a Bedford tray truck carrying four steers, travelling in the left-hand south-bound lane of the Hume Highway, ten kilometres north of Wangaratta. The collision occurred at 8.15 p.m. in fine weather, and the visibility was good, although it was summer and the sun was setting in the west, which cast a glare according to some witnesses. The Bedford was being driven by Gregory Anderson, aged 22, and had turned into the Hume Highway some two kilometres north of the point of collision. Anderson had driven the Bedford from his father's property to deliver the steers to a market in Wangaratta. The weight of the Bedford, loaded with the cattle, was approximately 6 tonnes.

The Hume Highway is a divided road, with two south-bound and two north-bound lanes separated by a median strip in the area where the collision occurred. On the left of the two south-bound lanes was an emergency lane which bordered a grass verge. The Wangaratta Straight, as the highway in the vicinity of the collision was called, runs for some ten kilometres of straight bitumen road south from the direction of Wodonga towards Wangaratta itself.

The collision occurred in the left-hand south-bound carriageway. Although there were other vehicles following the semi-trailer, no one else saw the impact, save that following drivers observed a cloud of dust and that the Bedford then ran off the highway onto the grass verge and overturned, with the tragic consequence that Gregory Anderson was crushed and killed.

The applicant was then an interstate truck driver with 20 years experience. His driving record was sufficiently good that in that time he had not had an accident. The applicant was employed by Brauns Transport and was travelling on the return leg of a trip from the firm's Melbourne depot to Brisbane, having left Brisbane at 4 p.m. the previous day, 13 February. His return trip had taken him through Nambucca Heads, Bulahdelah, Wyee, Moorebank, Sutton Forest, Tarcutta and Holbrook.

After police investigations, which commenced on the day of the accident, including an interview with the applicant, and which lasted for more than a year, the applicant was charged with the offence of culpable driving causing death created by s.318 of the Crimes Act 1958. The applicable maximum penalty was then 15 years' imprisonment. Section 318(2) relevantly provides -

"a person drives a motor vehicle culpably if he drives the motor vehicle -

(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"...

The "gross" departure from the standard of reasonable care referred to in s.318(2) is the equivalent of criminal negligence sufficient to support the crime of manslaughter, as Winneke, P. observed in R. v. Franks [1998] V.S.C.A. 100 at [5], in reasons for judgment in the first appeal in relation to the present applicant.

The applicant was first presented on this charge in the County Court at Shepparton on 4 February 1998. He pleaded not guilty and after a trial lasting some ten days was convicted and sentenced to three years' imprisonment. The learned judge fixed a non-parole period of two years and also fined the applicant a total of $4,600 on 46 summary offences to which he pleaded guilty. These charges related to driving hours in excess of those prescribed, failing to have appropriate rest periods, and failing to make proper recordings in his log book.

The applicant appealed to this Court, relying principally upon a variety of alleged misdirections in the learned judge's charge. The appeal was allowed on 6 November 1998 and a new trial was ordered. It is relevant to note that it was also submitted that the verdict was unsafe and unsatisfactory and that the learned judge should have ruled that there was no case to answer. Winneke, P. said in his reasons for judgment at [41] that -

"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'."

Tadgell, J.A. in concurring reasons said at [44] that there was a strong Crown case. Batt, J.A. agreed with the President.

On 3 February 1999 the applicant was again presented in the County Court at Shepparton. After a trial lasting 11 days, the applicant was again convicted, the second learned judge also having ruled that the applicant had a case to answer. On 25 February 1999 his Honour sentenced the applicant to be imprisoned for 28 months and fixed a non-parole period of 16 months. By this time the applicant had served 240 days pre-sentence detention. His Honour also ordered pursuant to the Road Safety Act 1986 that all driver licences and permits held by the applicant be cancelled and that he be disqualified from obtaining a licence or permit for two years.

The applicant sought leave to appeal by notice dated 1 March 1999 which, as subsequently amended, contains some nine grounds. The principal grounds argued before this Court were, however, the overlapping grounds 1 and 2, which claim -

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

The Crown's case was that the front of the appellant's prime mover collided with the rear of the truck driven by the deceased Anderson when the said truck was being driven at cruising speed and when both vehicles were proceeding south on the highway, and that in these circumstances the collision could not have occurred unless the appellant was guilty of culpable driving. The Crown asserted that the failure of the appellant to avoid the collision could only be consistent with the appellant driving his vehicle when in such a state of excessive fatigue that the driving must in the circumstances have been culpable or alternatively that the accused's lack of due care and attention was culpable. There is no direct evidence which established either of these alternative hypotheses which were at best speculative hypotheses only.

The Crown failed to negate the uncontradicted evidence of the appellant that the collision was caused by the truck driven by the deceased Anderson suddenly pulling out from the emergency lane so that the appellant was unable to avoid the collision. This evidence derived corroboration in particular from the uncontradicted evidence of the Crown expert witness Bellion as to the respective speeds of the two vehicles before and at the moment of collision and other evidence tending to corroborate that that was a real possibility. Further the verdict of the jury is unsafe and unsatisfactory by reason of the matters particularized in grounds 1 to 9 hereof.

2. The Crown failed to exclude the reasonable hypothesis that the collision was caused by reason of the deceased suddenly driving his truck from the emergency lane into the path of the appellant's semi-trailer.

At the second trial the prosecution alleged that the collision occurred as a consequence of the applicant's fatigue and/or his failure to keep a proper lookout. Written particulars of the applicant's driving alleged by the Crown to be gross negligence were supplied in the following terms -

1. The fatigue of the accused Franks in that there was a gross departure from the standard of care of a reasonable driver in that he continued to drive his motor 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.

2. At a time sufficiently contemporaneous with the death of the deceased the accused drove his semi-trailer without due care and attention in that he allowed it to collide with the rear of the vehicle being driven by the deceased.

The prosecution case was as follows. The applicant's employer, Manfred Braun, gave evidence that the applicant had been working as one of his drivers since August 1995. He described the MAN prime mover driven by the applicant and the CB radio and mobile telephone with which it was equipped. A speed limiter was, he said, fitted to the prime mover, restricting this vehicle's speed to 100 kph. Braun said that the applicant was paid for each consignment he carried. He described the applicant as his best driver in fuel consumption, and in driving sensibly and under the speed limit.

To establish the applicant's fatigued state, the Crown then called a considerable body of evidence for the purpose of re-constructing the pattern of driving of the applicant over the period of 18 days leading up to the accident. This evidence included production of his log book, evidence of mobile phone records, Shell card documents for the purchase of diesel fuel, evidence from a traffic camera produced by the NSW Roads and Traffic Authority and Telstra records of telephone calls made from or received by the applicant's mobile telephone. This evidence, together with answers given by the applicant during prolonged and, at times, hostile questioning by the police, established that from 2 February until 12 February 1996 the applicant had worked continuously in excess of permitted hours, averaging about ten hours' driving per day. Furthermore, the evidence established clearly that entries in the applicant's log book were repeatedly inaccurate, often incomplete, and in a number of cases clearly false. It was accepted by Mr. Francis, Q.C., who appeared with Mr. Houlihan in this Court for the applicant, that the log books demonstrated some cheating by the applicant. Indeed, the logbook was described at trial by the prosecutor, quite fairly, as a sham. I suspect that the applicant, when he came to give evidence during the trial, did himself no favours with the jury by claiming that these false entries in his log book were simply "mistakes". But notwithstanding this evidence showing that the applicant had worked in excess of permitted hours in this period, the evidence also showed that from midnight on 12 February when the applicant arrived at Rocklea in Queensland, until 4 p.m. that day when he left to drive to Sydney, the applicant had spent most of the intervening 16 hours sleeping or at rest. Having left Rocklea at 4 p.m., the applicant drove to Nambucca Heads, arriving at 9 p.m., and took one hour's rest. He then drove to Bulahdelah, arriving at 1 a.m. on 14 February. He travelled on to Wyee, arriving at 2.30 a.m. and then spent the next three hours sleeping in the sleeper cab. Leaving Wyee at 5.30 a.m., he drove to Moorebank, arriving at 7 a.m. and slept there for three hours. He left Moorebank at 10 a.m. and stopped to refuel at Sutton Forest at 11.15 a.m. He left Sutton Forest at 12.35 p.m. and drove for three-and-three-quarter hours, arriving at Tarcutta at 4.15 p.m. He left Tarcutta after a meal at 5 p.m., and drove to a wayside area near Holbrook where he slept from 6 to 7 p.m. He then drove to Albury where he stopped to get a bottle of Coca Cola, and at this point noticed an oil leak, which he reported to Braun on his mobile telephone. He then drove on to the place where the accident occurred, as I have said, at 8.15 p.m.

The foregoing timetable was said by Mr. Francis to be established on the totality of the evidence at the trial, and this was not challenged in submissions by Mr. Just, who appeared for the Crown in this Court.

The deceased's father, Raymond Hugh Anderson, gave evidence of the general condition of the Bedford tray truck. The deceased had been a very experienced driver, having driven from an early age. He was licensed to drive both light and articulated trucks, and had undergone driver-training with the North Wangaratte Fire Brigade. Mr. Anderson said the likely top speed of the Bedford on the highway was 40 to 45 mph (64 to 72 kph) and that the route taken from the farm to Wangaratta was along Carragarmungee Estate Road, then turning left onto the Hume Freeway.

Evidence of what happened on Wednesday 14 February was given by Mr. Anderson and three other truck drivers who were travelling on the Wangaratta Straight at the time of the accident. Mr. Anderson said that the deceased would have returned home from work at about 5.30 p.m., and that he subsequently loaded four head of cattle onto the Bedford, after which he left to drive the cattle to market. Mr. Anderson said that the weather at the time of the accident was clear and that the angle of the sun would not have affected the deceased's vision or driving at the relevant time. Travelling behind the applicant in another semi-trailer was Desmond John Lieschke. Mr. Lieschke said that he first saw the applicant's rig about three or four kilometres ahead of him. He himself was travelling at about 94-100 kph, gradually catching up to the applicant. He said the applicant was travelling at 90 kph, in a straight path in the middle of the left-hand lane, neither zig-zagging, nor varying his speed. There was nothing in the applicant's driving to give him any concern. Lieschke said that some three or four kilometres north of the point of the accident, he had seen a policeman with a radar gun in the trees dividing the north and south-bound carriagways. He said that he had not seen any other vehicle in the emergency lane to the left of the south-bound lanes, nor had he seen the Bedford approach down the Carragarmungee Estate Road to enter the freeway. The driver behind Mr. Lieschke's vehicle was Gary Alexander Smith, whose evidence was given in his absence by production of a tape-recording of his evidence at the first trial. Mr. Smith said that it was a bright sunny day with the sun low in the sky, and that he had lined himself up behind Mr. Lieschke's semi-trailer. He said he did not see any vehicle parked in or slowly moving along the emergency lane as he drove along the Wangaratta Straight. After the accident occurred he saw the applicant who appeared to be stunned, in a shocked state.

Evidence was given by Senior Constable Ralph, who was stationed at Wangaratta, and who attended the scene, that he observed the applicant there, describing him as slumped in appearance, with glazed eyes, and that he appeared to be very tired. He examined the applicant's log book and said he noticed that the entry for Tarcutta that day appeared to have been hastily scribbled in.

Dr. Annie Leong, a medical practitioner, said that she examined the applicant at Wangaratta Hospital at 9.55 p.m. that night. Dr. Leong said that he did not display any significant post-accident symptoms, and that she found him to be alert, very conscious and orientated. The applicant was tested for the presence of drugs and alcohol, but neither was detected.

The applicant was then taken to the Wangaratta Police Station, and at about 10.53 p.m., a brief interview took place. Evidence was given by Sergeant Coleman, and Senior Constables Ralph and Mennie of seeing the applicant asleep after midnight at various times between 12.15 a.m. and 2 a.m. on 15 February. Ralph and Mennie said they called the applicant a number of times at about 1.30 a.m. and that he only woke when shaken by his left shoulder. When interviewed, the applicant said that he first saw the deceased's Bedford travelling in the emergency lane at about 10 kph, about 100 metres ahead of him. (At one stage he denied that it was travelling in the emergency lane, but the denial was plainly not intended.) He said that when they were only about 50 metres apart, the Bedford pulled out in front of him. He said he hit the brakes immediately but had no time to avoid the collision. This was the explanation which the applicant maintained, with, I should say, some variations in relation to speeds and distances, throughout prolonged police questioning thereafter and during his evidence given at both trials.

Expert evidence was given as to the mechanical condition of both vehicles by Senior Constable Booth. Sergeant Bellion of the Accident Investigation Squad prepared a reconstruction plan of the area of the accident and concluded that the full front of the applicant's prime mover made contact with the full rear of the Bedford, with only slight offset. He calculated that the applicant's semi-trailer would have been travelling before the impact at between 85 to 112 kph and that the brakes of the semi-trailer had been applied some 20 metres before the point of impact. Sergeant Bellion assessed the Bedford's speed before the point of impact as in the area of 36 to 66 kph. Under cross-examination he said that if the semi-trailer's speed was 90 kph before the accident, the Bedford's speed would have been around 40 kph, and that it could have been as low as 30 kph.

Dr. Narelle Haworth was called to give evidence of driver fatigue. She described "acute fatigue" as fatigue resulting from recent actions and "chronic fatigue" as fatigue resulting from a long and repeated pattern of constant working with insufficient sleep. She said that the greater the level of chronic fatigue, the greater amount of sleep required to fully recuperate. Dr. Haworth gave evidence of the effect of fatigue on reaction times and the ability to observe vehicles in front when driving while fatigued. Dr. Haworth described three different conditions in a driver, the "alert" driver, who was well rested and performing well; the "drowsy" driver, who was aware of tiredness and was still driving; and the "dim" driver. At the second stage the driver, said Dr. Haworth, knows he is tired and his own judgment of how well he is driving is reasonably accurate. In the third stage which she described as "certainly very dangerous", the driver is still aware of being tired but "his judgment of his own performance - of how he is driving - is starting to be impaired, as well as the driving itself being impaired". Dr. Haworth also said that the fatigued driver loses his peripheral acuity and his forward concentration. The applicant had mentioned to the police having seen the hidden policeman with his radar gun shortly before the collision. Dr. Haworth agreed during cross-examination that this observation, together with the pattern of driving described by Mr. Lieschke, meant that the applicant was "not showing those stage 3 symptoms at those points of time", but "the behaviour of an alert driver".

The applicant gave evidence on his own behalf, continuing to maintain the explanation he had given from the time he was first interviewed immediately after the collision. As I have said before, the jury would certainly have been entitled to regard his evidence in relation to his log book entries as false on a number of occasions and consequently to regard him as an unreliable witness.

After the jury had retired to consider its verdict, a question was asked by the jury whether the applicant could be found guilty, on either of the ways put by the Crown if the jury retained a reasonable doubt that it was possible the Bedford was being driven in the emergency lane. His Honour directed in response that if the jury had any reasonable doubt that the Bedford was at material times in the emergency lane, then they must acquit the applicant. Having regard to the course of the trial this was, in my view, an appropriate direction. The effect of this direction was, of course, that the Crown could not make out its case, either on the basis of fatigue or failure to keep a proper lookout, if there was a reasonable doubt left that the Bedford pulled out in front of the applicant's semi-trailer.

In these circumstances, Mr. Francis submitted in support of grounds 1 and 2 that the jury's verdict was unsafe and unsatisfactory and that the Crown had failed to exclude the reasonable hypothesis raised by the applicant that the collision had been caused by reason of the deceased driving into his path from the emergency lane.

The test to be applied by an appellate court in determining whether a verdict is unsafe and unsatisfactory, was stated in M. v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487, at 494, by Mason, C.J., Deane, Dawson and Toohey, JJ. in the following terms -

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a Court of Criminal Appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."

However, as the majority in M. emphasized, at 493, the appellate court -

"must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses".

See also Jones v. The Queen (1997) 191 C.L.R. 439, at 450-451.

In relation to ground 2, it was said by Dixon, J. in Martin v. Osborne [1936] HCA 23; (1936) 55 C.L.R. 367, at 375, that "In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation". Then in Knight v. The Queen [1992] HCA 56; (1992) 175 C.L.R. 495, at 503, Mason, C.J., Dawson and Toohey, JJ. said -

"There are not ... degrees of consistency and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance."

Mr. Just relied strongly in answer to the applicant's argument on grounds 1 and 2 on what had been said by the members of this Court in allowing the applicant's first appeal, but holding that a jury would have been entitled to convict him on the present charge. There are a number of reasons why, in my view, the prosecution can gain no real assistance from this argument. The case made by the prosecution in the second trial was quite different from that advanced on the first, and the evidence called and the cross-examination were different. In the first trial, the prosecution case was that the applicant was in such a state of fatigue that, as the prosecutor put it in his opening address "his eyes may have been open but his brain was not working", a state doubtless akin to that described by Dr. Haworth as the third stage or "dim" driving. Dr. Leong was not called as a witness at the first trial. Her evidence, taken with the evidence in cross-examination of Dr. Haworth, would together have made it highly questionable whether a jury would have found the applicant guilty on the allegation of gross negligence pressed at the first trial. In my view, notwithstanding the respect and weight which must of course be given to the judgments of this Court in the first appeal, the fact remains that the second trial was fought on different issues, with different witnesses, and on different evidence.

The Crown case relied, it seems to me, on three matters, the allegation that the applicant was fatigued, that no one saw the Bedford in the emergency lane (and therefore that it was not in that lane before the accident) and that the applicant collided with the rear of the Bedford in favourable conditions of roadway and visibility, an occurrence which could only be explained by fatigue or failure to keep a proper lookout.

In truth, the evidence of fatigue was not compelling. The applicant had plainly worked excessive hours in the period 2-12 February. But he had had substantial rest on 13 February, and some seven hours of sleep since leaving Rocklea at 4 p.m. on February 13. The evidence of Senior Constable Ralph gave some support to a conclusion that the applicant was very fatigued, but against that it is also highly likely that, as stated by Mr. Smith, the applicant was both stunned and shocked after the collision. I would place little or no weight on the fact that the applicant was found asleep after midnight on the early morning of 15 February, or that the police officers had difficulty in waking him then. On the other hand, the evidence of Mr. Lieschke, Dr. Leong and Dr. Haworth, all tends to the conclusion that he was alert and orientated both before and shortly after the accident, and driving competently before the accident. That he remained alert was also supported by evidence that he had detected a small oil leak at Albury and reported it to Melbourne by telephone, that he had observed the policeman with the radar gun just before the collision, and that he had braked hard and commenced to swerve before the impact.

I turn next to the evidence that there was no vehicle in the emergency lane. Mr. Smith's evidence cannot assist the prosecution at this point. His evidence was that the position of the sun in the sky made it difficult for him to see. In cross-examination his evidence was -

"When you saw the emergency stop, which you call the fog-line area, you weren't able to see anything in that lane past the truck and trailer in front of you?---No.

Did the truck and trailer in front of you obstruct your view of anything in that lane?---With that and the low setting of the sun.

Mr. Lieschke said in evidence that he thought he would see something in the emergency lane if it was there, but in cross-examination he was asked -

"But what I'm putting to you is, from the time - you are on a straight stretch of road, different on a curving road, but on a straight stretch of road there is no way you can see, from where you are sitting, what is in the emergency lane to the left and the front of the truck in front of you? No way is there?---Possibly not, no."

Furthermore Mr. Lieschke agreed that the semi-trailer would have blocked his view of the Bedford and that it was near dusk. Since he was seated on the right-hand side of the driver's cabin, his view to the left of the semi-trailer in front must have been limited and, in view of the evident difference in speeds, the Bedford must itself have been a considerable distance ahead of the semi-trailer which struck it until shortly before the collision. On the other hand, there would have been nothing to impede Mr. Lieschke's view of the Bedford if, shortly before the collision, it had driven out of the Carragarmungee Estate Road and turned into the highway without stopping. As I have said, Mr. Lieschke did not see the Bedford driving along or turning out of that road.

The evidence of the third driver, Sean Vincent Dooley, who was further back, (a kilometre behind when he first saw the two semi-trailers, one in each lane) was described as unsatisfactory by Mr. Francis, and as insufficient to support a conclusion that the Bedford had not stopped or slowed in the emergency lane, a claim which I do not think was seriously challenged by Mr. Just.

It was in these circumstances that the applicant had volunteered his explanation of the accident, an explanation which he had maintained with consistency from shortly after the happening of the accident, through prolonged police questioning and in evidence given at two trials. His record of interview was tendered by the prosecution, placing before the jury the alternative explanation that the Bedford moved into the applicant's path very shortly before the collision. The evidence of Dr. Leong, Dr. Haworth and Mr. Lieschke supported the applicant's claim that he was fit to drive and driving properly. Sergeant Bellion's evidence shows that the Bedford may have been driving at 40 kph or less when it was struck, a speed much lower than the speed at which it would have been likely to travel on the highway, and at which it was unlikely that the Bedford was in top gear. Sergeant Bellion's evidence also established that the semi-trailer's brakes had been applied before the collision. Mr. Lieschke's evidence of not seeing the Bedford emerge from the Carragarmungee Estate Road provided some support for the view that the Bedford had not, shortly before the accident, emerged from that road which, since it was only two kilometres north of the point of the accident, suggested that the Bedford might for some time have been stationary in or near the emergency lane. The evidence that the applicant had seen the policeman with the radar gun hidden in the trees shortly before the collision suggested both alertness and the retention of peripheral vision.

There was also before this Court a most helpful report from the very experienced trial judge, which included the following comments -

"No doubt the Court will be aware of the circumstances of the collision causing the death of the deceased. At trial, it was contended by the applicant that shortly prior to the collision the vehicle being driven by the deceased had been stationary or was moving slowly in the emergency lane of the south-bound section of the Hume Freeway. He said that immediately prior to the collision this vehicle crossed into the path of his semi-trailer which was travelling at a greater speed. The applicant had given this account of the collision from moments after it occurred.

The Crown disputed this version of the collision. It claimed that the applicant had collided with the rear of another vehicle travelling in the same direction as his vehicle in favourable conditions and that the only explanation was the gross negligence of the applicant.

As there was no evidence of erratic driving, no aggression, no excessive speed, no alcohol, no drugs and no deliberate endangerment, I instructed the jury that they could not find gross negligence unless they were satisfied beyond reasonable doubt that the applicant's version of the collision was not correct. On this issue I thought that there was a considerable body of evidence supportive of the applicant's account and not much opposed to it. By their verdict the jury have obviously declared themselves satisfied beyond reasonable doubt that the applicant's contention was not correct. I was very surprised by the verdict. Had I the power to take the case from the jury I would undoubtedly have done so."

In R. v. Giovanni Marziale, unreported, Court of Appeal, 18 April 1996, Winneke, P., Brooking, J.A. and Southwell, A.J.A. dealt with the weight to be accorded to a judge's report, saying at 34 -

"The weight to be given to a judge's report must necessarily vary according to the circumstances of each particular case. That weight will generally be the greater when the opinion expressed is based upon factors the assessment of which depends principally upon the atmosphere of the trial or the observations of a witness - for example, the general demeanour, the unduly delayed or the too hurriedly given answers. In such matters a court of appeal will recognise the advantage enjoyed by the trial judge. However, less weight will be given where, as in this case, the judge's opinion is based, so it appears, almost wholly upon the type of assessment of the evidence which a court of appeal is obliged to undertake where it is said that a conviction is unsafe and unsatisfactory."

The present case is in the first category referred to in Marziale, at least to the extent that it involved an assessment of the applicant's credibility when he gave evidence that the Bedford had pulled out in front of him. I am disposed to think, too, that the atmosphere of the trial was not unimportant. But, on any view, the learned judge was, with respect, clearly correct in his statement that the applicant's explanation had "a considerable body of evidence supportive of" it, "and not much opposed to it."

Had the evidence remained as it stood at the close of the Crown case, I should have had no doubt that the applicant's conviction was unsafe and unsatisfactory, for all the reasons previously discussed. Is the position then altered because the applicant gave evidence, and the jury, having heard his explanation, were entitled to disbelieve him, having regard at least to his evidence relating to his log book entries?

It is, I think, critical to bear in mind in answering this question, that the applicant's alleged alternative explanation did not depend solely upon his own statements or evidence. There was a considerable body of evidence supportive of it in the Crown case. The explanation could not be said to be implausible or inherently unreasonable. In these circumstances in my view the fact that the applicant may have been regarded by the jury as lying in relation to his log book entries did not relieve the Crown of the burden of proving the guilt of the accused (Broadhurst v. The Queen [1964] A.C. 441, per Lord Devlin at 457). The burden remained on the Crown to exclude the alternative reasonable hypothesis that the Bedford moved into the applicant's path shortly before the collision.

45 I am conscious indeed of the weight to be given to the primacy of the jury's responsibility for determining guilt or innocence. But, having scrutinized the evidence in this trial, I share with the learned trial judge the doubts expressed by his Honour. In my view the prosecution did not exclude the alternative reasonable hypothesis advanced by the defence. Making full allowance for the advantage enjoyed by the jury there remains, in my view, a significant possibility that an innocent person has been convicted.

It is for these reasons that on 8 April 1999 I joined in the decision to grant the applicant's application for leave to appeal against conviction, to allow this appeal, and to direct that a judgment and verdict of acquittal be entered forthwith.

I gratefully adopt the statement of facts and issues in the reasons for judgment written by Charles, J.A. I joined in the orders pronounced by the Court on 8th April 1999 because, in my opinion, it was not open to the jury to conclude, on the evidence led at the second trial, that the Crown had established either version of its case beyond reasonable doubt.

I respectfully agree that, at all events having regard to the direction given to the jury by the learned judge in response to their question, it is also possible to explain our decision in terms of failure to exclude a reasonable hypothesis consistent with innocence.

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