R v Marijancevic [2009] VSCA 135

1 The applicant was convicted in the County Court at Melbourne on 18 August 2008 of two counts of reckless conduct endangering life contrary to s 22 Crimes Act 1958 (counts 3 and 4) and one count of intentionally causing serious injury contrary to s 16 Crimes Act 1958 (count 5).

2 The applicant was found 'not guilty' on three further charges, being count 1 (reckless conduct endangering life contrary to s 22 Crimes Act 1958), count 2 (intentionally causing injury contrary to s 16 Crimes Act 1958) and count 6 (intentionally causing injury contrary to s 16 Crimes Act 1958).

3 On 3 September 2008 the applicant was sentenced as follows:

Count 3 - 12 months' imprisonment (six months cumulative)

Count 4 - 18 months' imprisonment (eight months cumulative)

Count 5 - Three years and six months' imprisonment (base sentence).

This resulted in a total effective sentence of four years and eight months' imprisonment. The sentencing judge fixed a period of three years' imprisonment before the applicant was eligible to be released on parole. Pre-sentence detention of 17 days was declared under s 18(1) Sentencing Act 1991. An order directing the obtaining of a DNA forensic sample from the applicant was granted pursuant to s 464ZF Crimes Act 1958. Furthermore, the applicant was disqualified from obtaining a driver's licence or permit for a period of four years pursuant to s 28 Road Safety Act 1986.

4 The applicant has applied to this Court for leave to appeal against his convictions and leave to appeal against his sentence.

5 The Crown alleged the following facts. The incidents giving rise to the applicant being charged occurred on 19 December 2004 at or near the intersection of Lincoln Road and Buckley Street, and in Buckley Street, in the Melbourne suburb of Essendon.

6 Between 8.00 pm and 9.00 pm on 19 December 2004, the applicant was driving his motor vehicle, a Pintara Skyline, in a southerly direction along Lincoln Road towards its intersection with Buckley Street in Essendon. This is a 'T' intersection, where Lincoln Road, which runs north-south, forms the stem of the 'T' intersection with Buckley Street. At this point, Buckley Street is divided by a median strip. At or near the intersection the applicant drove past a group of males who were crossing the road. The evidence is unclear as to whether a red light was facing the applicant as he drove through the intersection. Nevertheless, he drove through it, turning right into Buckley Street. In driving past the group, he drove close to Anthony Maggiolini, who was approximately half a metre away from the car.

7 The group gathered around the applicant's car near the median strip in Buckley Street. A heated argument then occurred between members of the group and the applicant, who remained in his car. The applicant then drove his motor car onto the median strip towards the group. This action constituted the formal basis of count 1. Anthony Maggiolini jumped vertically to avoid being hit by the front of the car. He rolled onto the bonnet, then over the top of the car and fell off the left-hand rear quarter panel onto the ground. These events constituted the basis of count 2.[1]

8 The group then confronted the applicant. In the course of the confrontation with the youths the applicant's car was kicked and the driver's side window was broken when it was kicked by one of the youths. Anthony Maggiolini punched the applicant with one or two blows to the head. As a consequence of the driver's side window of his motor vehicle being kicked in and shattering, the applicant suffered lacerations to his face and arms.[2]

9 The applicant then drove his motor car towards the lights at the intersection of Buckley and Waverly Streets, where he stopped. He then executed a U-turn, and headed back in an easterly direction towards the youths who were then gathered on the footpath in the vicinity of a driveway to a private property on the northern side of Buckley Street, a short distance from the Lincoln Road intersection. The applicant then drove at the group of youths causing them to take evasive action when the car was upon them. This event was the subject of count 3, a count of reckless conduct endangering life. The applicant then drove away from the scene.

10 However, a short time later the applicant returned to the same area. On this second occasion, he again drove at a group of youths who were in the driveway footpath area on the northern side of Buckley Street by mounting his car onto the driveway footpath area. This event was the subject of count 4, a count of reckless conduct endangering life. One of the group, Nicholas Cummins, was struck by the applicant's vehicle resulting in his sustaining serious injury. Nicholas Cummins suffered a broken left leg, a broken nose and injury to his right elbow and shoulder. This event was the subject of count 5, a count of intentionally causing serious injury. The prosecution also asserted that Maggiolini had been struck and suffered injury at that time, which assertion formed the subject of count 6 on the presentment, a count of intentionally causing injury.[3] The applicant's car continued along the footpath and turned left into Lincoln Road.

11 The applicant then left the scene and did not return. He was apprehended by police some two kilometres from the scene.

12 The argument advanced by counsel for the applicant in relation to count 1 was that his driving arose in circumstances of self-defence as he tried to flee the group. It was argued that some members of the group had assaulted him. The principal argument in relation to counts 3, 4 and 5 was that the actions of the applicant in driving his car at the group were not voluntary, but were actions which took place whilst the applicant was suffering from impaired consciousness as a result of the blows to his head after having been assaulted by one of the youths.

13 In the course of the defence case evidence was given by a neuropsychologist, Dr Gibbs that one possible effect of head injury is that a person may suffer a confused state and become disoriented. He gave evidence that a person in such a condition may wander, walk and talk but may not be engaged in sequenced and co-ordinated activity. He described other symptoms which can be caused by a head injury, including: post traumatic amnesia involving changes in memory; the impairment of ability to organise information in a coherent manner; and the impairment of motor skills. Dr Gibbs said that, although a person suffering a head injury may be able to continue engaging in acts with which they are familiar, such as driving a motor car, the precision with which such acts are performed may be impaired. He also gave evidence that a psychological disassociative response may be caused by trauma or fear so that a person may engage in activities whereby their capacity to make a reasoned decision is impaired.

14 Originally the grounds of appeal in relation to conviction had been drawn to include 17 grounds. However, upon the hearing of the application, the applicant, by his counsel, abandoned all but ground 15, and with the leave of the Court, added and relied upon a further ground, ground 18.

The learned trial judge erred in equating the consciousness of an act with an intention to commit a crime.

The judge erred in directing the jury as follows: 'In all criminal cases, one starts with the proposition that the acts are willed and voluntary and conscious, all right. If you, the jury, are satisfied that there could at least be a reasonable possibility the accused's actions are involuntary, then the Crown must remove the reasonable doubt raised'.

Conflation of General and Specific Intent (Ground 15)

17 In order to appreciate the thrust of the submission made on behalf of the applicant under ground 15, it is necessary to consider the elements of the crime charged under s 22 Crimes Act 1958, which comprised counts 3 and 4 of which the applicant was convicted. In R v Abdul-Rasool[4] the Court of Appeal considered that the elements of the offence under s 22 as refined and developed by case law, leaving aside the element of lawful excuse, are:

(1) the accused engaged in conduct; and

(2) that conduct placed a person in danger (that is conduct that carried with it an appreciable risk) of death (the actus reus);

(3) the accused engaged in that conduct voluntarily;

(4) a reasonable person in the position of the accused, engaging in the very conduct in which the accused engaged and in the same circumstances, would have realised that they had placed another in danger of death (the objective mental element); and

(5) the accused engaged in that conduct recklessly in that they foresaw that placing another in danger of death was a probable consequence of their conduct in the surrounding circumstances (the subjective mental element).[5]

18 In a printed handout provided to the jury in the course of her charge, the trial judge stated in relation to the charges which included counts 3 and 4:

Conduct Endangering Life

Counts 1, 3 and 4

In order for you to find the accused guilty of any of these counts (considered separately), the prosecution must prove beyond reasonable doubt each of the following elements:

1. that the accused committed the conduct alleged; and

2. that the accused committed the conduct intentionally; and

3. that the conduct endangered another person's life; and

4. that the accused acted recklessly; and

(if when he committed the relevant conduct he foresaw that an appreciable risk of death was a probable consequence of that conduct, but he committed the conduct anyway);

5. that the accused acted without lawful excuse.

If you are not satisfied that each of these elements has been proven beyond reasonable doubt you must find the accused not guilty of the count you are then considering. (emphasis added)

19 It is to be observed that the Judicial College of Victoria Criminal Charge Book states that the offence of conduct endangering life contains five elements which accord with the decision in Abdul-Rasool.[6] The second element is stated to be that the prosecution must prove that the accused committed the conduct alleged in the presentment 'voluntarily'. The printed handout did not accord with the Criminal Charge Book nor did it contain any mention of the necessity for the prosecution to prove beyond reasonable doubt that the conduct of the applicant was conscious and voluntary and deliberate. Rather it used the word 'intentionally' to connote conscious, voluntary and deliberate conduct.

20 Throughout her oral directions however the trial judge used the word 'intentionally' interchangeably with 'voluntary' and 'conscious' when referring to the conduct of the applicant. Her Honour expressed herself by equating the concepts of 'conscious' and 'voluntary' with the concept of 'intentional' when referring to the conduct alleged by the Crown to constitute the actus reus of all of the offences charged. Moreover, her Honour did so a number of times throughout the delivery of the charge.

21 For example, in her general directions dealing with the drawing of inferences the trial judge said:

As an example, one of the things that the prosecution has to prove beyond reasonable doubt is the state of mind of the accused. That is that the accused's actions were intentional or wilful. That is done deliberately and voluntarily - intentional. There is no direct evidence here of the state of mind of the accused ... So here the prosecution seeks to have you look at all the circumstances surrounding each of the allegations in the five counts that are before you and to draw an inference from those circumstances that the accused had a certain state of mind. That is that he intended to commit these offences. That his actions were done deliberately and voluntarily. (emphasis added)

22 The penultimate sentence in the above passage was misleading in using the words 'intended to commit these offences' when presumably what was intended was to refer to the conduct of the applicant in relation to the actus reus, rather than his mens rea.

The only witness in this trial who can be called an expert witness is Dr Gibbs. Now Mr Gillespie-Jones submits you should accept his evidence and that accordingly you should not be satisfied beyond reasonable doubt that the Crown have proven that the actions of the accused in counts 3, 4, 5 and 6 were intentional, that is conscious and voluntary acts,

...

The prosecution submits that even taking into account the evidence of Dr Gibbs you should be satisfied beyond reasonable doubt that the prosecution have proven the acts of the accused in counts 3, 4, 5 and 6 were intentional, that is conscious and voluntary acts, that there were willed acts by the accused. (emphasis added)

In this trial Mr Gillespie-Jones submits that the prosecution have not proven beyond reasonable doubt that the actions of the accused were conscious and voluntary or intentional acts. He relies in support of this submission, amongst other things, upon the evidence of Dr Andrew Gibbs. Now I am putting aside Count 1 for the moment. I am just looking at 3, 4, 5 and 6.

He submits, that is Mr Gillespie-Jones submits, that following the glass smashing in the driver's side window, and the course of either a kick or one or two punches by Mr Maggiolini to the accused's head, when he was already bleeding. He says following that occurring, you should not be satisfied, he says, beyond reasonable doubt, that the accused's actions were voluntary and conscious or intentional.

That you should not be satisfied, he says, that based - that the accused had the necessary state of mind, which has to be proven by the prosecution. And I remind you that the prosecution bears the onus of proving the acts alleged were done, consciously, and involuntarily, ie. Intentionally. (emphasis added)

25 In dealing with the elements of the offence of intentionally causing serious injury, the subject of count 5, her Honour said:

The real issue in relation to Count 5, as it is with counts 3 and 4, is the accused's state of mind, says Mr Gillespie-Jones, when the injuries were caused and sustained whether or not the accused acted intentionally, that is consciously and voluntarily, and whether he even knew he hit Mr Cummins.

...

The second element the prosecution must prove is that the accused caused the complainant's serious injury. ... The real issue is did he actually see Mr Cummins or the person who was ultimately Mr Cummins at the time of the incident? And also his state of mind at that time. Were his actions, if you find he caused those serious injuries to Mr Cummins, were his actions conscious and voluntary? Mr Gillespie-Jones says they were not. You should be satisfied they were not and that the Crown have not proven that the injury was intentional, and that is Element 3, which I am about to come to.

So the third element - it relates to the accused's state of mind. The prosecution have to prove beyond reasonable doubt that at the time the accused did the acts that you find caused Mr Cummins's injury he intended to seriously injure Mr Cummins, and that element is an issue in this trial, as you are hopefully now aware. (emphasis added)

26 There were other examples in the charge whereby the trial judge directed the jury that the words 'conscious' and 'voluntary' equated with 'intentional'. For example at one point her Honour said '...(the law) places in your hands the duty to determine whether the Crown has proved that the accused did the forbidden act consciously and voluntarily, ie. 'intentionally'.

27 In He Kaw Teh v The Queen[7] Brennan J described the mens rea of an offence as consisting of two essential but distinct components: a general intent, and a specific intent.

28 General intent is the intent to do the actus reus, being the physical act in the crime charged. The conduct must be voluntary in the sense that it is willed or consciously performed.

29 Specific intent, on the other hand, relates to the results caused by the act done. This is the subjective mental element described by Redlich JA in Abdul-Rasool.

30 In statutory offences, specific intent usually involves proof of foresight on the part of an accused as to either a probable consequence of the conduct , as in the case of the offence of reckless conduct endangering life contrary to s 22 Crimes Act 1958, or an intention to produce a certain consequence, as in the case of the offence of intentionally causing serious injury contrary to s 16 Crimes Act 1958.

31 In He Kaw Teh Brennan J emphasised the distinction between general and specific intent as separate categories of mens rea included in the elements of statutory criminal offences. His Honour stated:

General intent and specific intent are ... distinct mental states. General or basic intent relates to the doing of the act involved in an offence; special or specific intent relates to the results caused by the act done. In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate.[8]

Different methods of proof of the two components of mens rea were also noted. In this regard, Brennan J said:

Both general intent and specific intent may be established by knowledge: the former by knowledge of the circumstances which give the act its character, the latter by knowledge of the probability of the occurrence of the result to which the intent is expressed to relate. But existing circumstances can be known more certainly than the probability of the occurrence of a future result, and therefore specific intent is usually established by proof of a desire or wish to cause the prescribed result, whereas general intent is usually established by proof of knowledge of circumstances prescribed by the statute as defining the act involved in the commission of the offence.[9]

32 Furthermore, in statutory offences, such as s 16 and s 22 Crimes Act 1958, general intent will not generally be specified in the text of the offence, whereas specific intent will almost invariably be defined. In He Kaw Teh Brennan J considered the differences in approach to the inclusion of the two categories of mens rea as elements of statutory criminal offences. His Honour observed:

Voluntariness, general intent and specific intent are three categories of mens rea that may be (but are not always) mental elements applicable to the external elements of an offence. Voluntariness and general intent are generally implied in a statute creating an offence as mental elements applicable to the act involved in the offence; specific intent is not implied. When a specific intent is expressed to be an element, it is ordinarily expressed to apply only to results.[10]

33 In trials involving a charge arising from a statutory offence there is generally no need to instruct the jury with absolute or pedantic precision as to the difference between that element of mens rea which involves the general intent to carry out the act in question (general intent) and that element comprising the specific intention or the subjective mental element relating to the effects caused by the act done (specific intent). Nevertheless, it is necessary to explain to a jury the elements of the offence in language which avoids the risk of confusion or misunderstanding as to the operation of the concepts so that the jury can apply the facts as it finds them to the law and discharge the function assigned to them properly.

34 The approach to describing the general intent to do the physical act involved in the crime charged by reference to its being a 'voluntary' or 'willed' act, derives support from Ryan v The Queen,[11] where Barwick CJ said:

That a crime cannot be committed except by an act or omission of or by the accused is axiomatic. It is basic, in our opinion, that the 'act' of the accused, of which one or more of the various elements of the crime of murder as defined must be predicated must be a 'willed', a voluntary act which has caused the death charged. It is the act which must be willed, though its consequences may not be intended. In the ordinary run of cases the voluntary quality of the deed physically related to the accused is not in question.

....by whatever adjective or adjectival phrase it is described, the deed which was not the result of the accused's will to act cannot, in our opinion, be made the source of criminal responsibility in him.[12]

Necessity to Put Involuntariness Properly before the Jury

35 The judge's fundamental task is to ensure a fair trial of the accused according to law. In order to fulfil this requirement, the judge must, amongst other things, instruct the jury about as much of the law as they need to know in order to dispose of the issues in the trial. In most cases, this will include a requirement that the judge gives the jury instructions about the elements of the relevant offences. Without this assistance, the jury will be left in a position where they are at risk of not properly discharging their function of returning a verdict in accordance with the law. It follows that, in the course of explaining the elements of the offences, this should be achieved with as much clarity as possible, leaving no room for confusion.

36 In the present case the applicant did not concede voluntariness with respect to his conduct in driving the car at the times in question. Indeed, the applicant advanced material which he contended brought into question the voluntariness or willingness of his conduct. Given that the trial judge left this matter to the jury to decide, the Crown carried the onus of proving beyond reasonable doubt that the applicant had the necessary general intent, that is that the applicant's conduct in driving the motor car at the relevant times was indeed a voluntary act. The Crown also carried the onus of proving that, at the time of driving, the applicant had the necessary specific intent which satisfied the subjective mental element relevant to the different crimes charged.

37 In cases such as this, where general intent arises as an issue, it must be put properly before the jury. In Ryan, Barwick CJ said:

Although a claim of involuntariness is no doubt easily raised, and may involve nice distinctions, the accused, if the material adduced warrants that course, is entitled to have the issue properly put to the jury.[13]

38 In the present case, the trial judge took the view that there was admissible evidence which left it open to a jury to entertain a reasonable doubt as to the voluntariness of the acts attributed to the applicant. The question which arose on this application was whether that issue was put properly to the jury.

39 It was submitted on behalf of the applicant that, arising from the manner in which the jury was directed by the trial judge, there was a significant risk of confusion in the mind of the jury as to the proper approach to their task on the questions of conscious, voluntary and deliberate acts, intention to engage in the proscribed conduct and specific intention to bring about the proscribed result.

40 It was submitted that this occurred, in part because of the different elements involved in the crimes charged and the manner in which the trial judge was obliged to explain these elements in her charge to the jury. Had the trial been confined merely to counts 3 and 4 (reckless conduct endangering life contrary to s 22 Crimes Act 1958), it was conceded that the risk of confusion would have been minimised. However, the fact that those counts were heard together with count 5 (intentionally causing injury contrary to s 16 Crimes Act 1958), obliged the trial judge to charge the jury also on the elements of a quite different statutory crime involving different definitions of the element of specific intent which comprised the subjective mental element of the crime.

41 There is some considerable weight in the submissions made by the applicant. In another handout provided to the jury in the course of her charge, the trial judge stated in relation to count 5 of which the applicant was convicted:

Intentionally Causing Serious Injury

Count 5

In order for you to find the accused guilty of this count, the prosecution must prove beyond reasonable doubt each of the following elements:

1. that [the victim] suffered a serious injury; and
2. that the accused by a voluntary act caused [the victim] serious injury; and
3. that the accused intended to cause [the victim] serious injury; and
4. that the accused acted without lawful justification or excuse.

If you are not satisfied that each of these elements have been proven beyond reasonable doubt you must find the accused not guilty of this count. (emphasis added)

42 It will be observed that the second element described in the handout introduced the concept of a 'voluntary act' whereas the third element dealt with the mens rea of the offence by reference to the 'intention' on the part of the applicant to cause serious injury to the victim. In other words, the concept of the 'voluntariness' of the act described in the second element was distinguished correctly from the intention to commit the crime described in the third element.

43 Despite the fact that the trial judge had consistently equated 'voluntary' with 'intentional' throughout her charge, the written directions properly defined the elements of the s 16 offence for the jury. Nevertheless, in our opinion, a risk of confusion was introduced into the judge's charge by the previous use of the word 'intentional' to describe the 'voluntary' or 'willed' character of the actus reus in her general directions relating to all charges and by the use of the word 'intentionally' in the written handout relating to the counts of conduct endangering life.

44 Furthermore, in the course of the trial judge's charge, counsel for the applicant raised concern as to whether her Honour's oral directions as to the mental elements of the offence relating to intentionally causing serious injury contrary to s 16 Crimes Act 1958 (count 5) made it clear that not only did the jury have to be satisfied that the accused did an 'intentional' act which caused a serious injury but that they had, in addition, to be satisfied that he also intended to cause serious injury. In the course of making the exception it was submitted that, in order to dispel any confusion in the minds of the jurors, the trial judge should have emphasised in her charge that the elements of the offence involved not 'just that the applicant did the act which caused serious injury intentionally, but that he intended to cause serious injury'. In other words, counsel correctly identified the necessity for the trial judge to explain to the jury the difference between the general intent applicable to the actus reus, and the specific intent which related to the subjective mental element of the crime charged.

45 In response to this exception, the trial judge delivered the following additional direction:

There are three things that I need to say as a result of yesterday. Counsel have reminded me or told me that I neglected to - in relation to counts 1, 3 and 4, if you have that chart in front of you, where element two is that the accused committed the conduct intentionally. I did say to you when I did go through that element that that is that you have to be satisfied the accused drove deliberately rather than accidentally. You will notice that the intention that has to be proven is the same in the other counts and I may not have made that clear.

Intentionally means deliberately, not accidentally. In all the counts that are there. If I did not make that clear, and if I have not made it clear now you will tell me. Intentionally means deliberately not accidentally, all right? Intentionally. Where it appears in any of the charges, that is what intentionally means. I might not have said that in relation to each of the counts so I hope that has clarified that, and of course, I have already addressed you on conscious and voluntary act, all right?

The next thing I want to raise is in relation to Count 5, just in case I confused you. I did not think I did, but element three, that the accused intended to cause Nicholas Cummins serious injury. That is what has to be proven beyond reasonable doubt. It is not a case of the Crown proving the intention to do the act which ended up causing serious injury. It is the intention to cause serious injury. I thought I made that clear. Apparently I did not. Do you understand the distinction? It is the intention to cause serious injury. Yes? You are all nodding so I guess you did understand that. (emphasis added)

46 This additional explanation given to the jury by the trial judge created a risk of introducing further confusion in relation to the mental elements of the offences charged under counts 3 and 4, and may well not have succeeded in curing any confusion which may have arisen in relation to the different intention required to be proved in count 5 as to the element of intentionally causing serious injury.

47 In our view the directions given to the jury as to the necessity for the prosecution to prove that the conduct of the applicant was voluntary, conscious and deliberate were so confusing that a risk of a miscarriage of justice did occur. The word 'intentional' was used interchangeably in her Honour's charge with the words 'voluntarily' and 'conscious' in reference to the conduct which formed the actus reas in all counts. The proper elucidation to a jury of the elements of the offence are fundamental to a fair trial. Whilst it may be that the jury did understand the distinction in the use of the word 'intentional' when used in respect of the conduct forming the actus reas in counts 3 and 4 as compared with its use to describe the mens rea in count 5, there is in our mind a serious risk that the distinction was not understood. The risk of confusion between the intention to commit a willed act and the intention to achieve the consequences of a willed act, no doubt explains why Barwick CJ said in Timbu Kolian v The Queen:

With every respect to those who may think otherwise, I have come to the conclusion that the relevant act in this case was the striking of the child on the head; that it was not an exercise of the will of the applicant, was not his willed act: and from the point of view of criminal responsibility not his act at all. I prefer to express my conclusion in this way rather than to say that the applicant did not intend to strike the child, though that truly can be said. I would prefer as far as possible to keep the use of the word intention to express the intention to achieve the consequences of a willed act, that is to say, to achieve some result, or consequence or to fulfil some purpose.[14]

48 In our view the risk of confusion is such that the convictions should be set aside. Counsel for the respondent conceded that in the event we reached that conclusion, that as the issues on appeal related to the elements of the offences and to the burden of proof, application of the 'proviso' is not appropriate.

49 Notwithstanding the view we have formed as to ground 15 we consider it appropriate to consider ground 18.

Voluntary and Conscious Act - Onus of Proof (Ground 18)

50 As stated above the principal issue at the trial in relation to counts 3, 4 and 5 was whether the applicant's alleged actions in driving his car at the group were conscious, voluntary and deliberate acts. If the acts were found by the jury to be voluntary acts the subsidiary issues to be determined were whether such acts were committed with the necessary degree of recklessness in relation to the acts the subject of counts 3 and 4, and with the specific intention to cause serious injury required to be proved in respect of count 5.

51 During her charge to the jury, the trial judge made the following statement:

In all criminal cases, one starts with the proposition that the acts are willed and voluntary and conscious, all right. If you, the jury, are satisfied that there could at least be a reasonable possibility the accused's actions are involuntary, then the Crown must remove the reasonable doubt raised.[15]

52 It might be observed that the above statement was the subject of some considerable discussion with counsel before it was delivered. After such discussion both counsel approved the statement.

53 However, it was submitted before us by counsel for the applicant that the direction was wrong in that it was apt to:

(b) reverse the onus of proof and undermine the standard of proof on a matter of central importance in the trial; and

54 It was argued by counsel for the applicant before us that the above statement was fundamentally wrong, as in a criminal trial one does not 'start with the proposition that the acts are willed and voluntary and conscious'. Rather, one starts with the presumption of innocence. Counsel for the applicant conceded that as stated in R v Falconer[16] 'common experience teaches us that a person's will ordinarily accompanies his actions and evidence will be required to establish the extraordinary circumstances that an accused's acts occurred independently of the exercise of his will or to raise a doubt whether that was so'.[17] However it was argued that in this case where the issue was raised by the evidence, it was necessary for the prosecution to prove beyond reasonable doubt that the relevant acts were conscious, voluntary and deliberate.

55 It was submitted that the statement that '[I]n all criminal cases one starts with the proposition that the acts are willed and voluntary and conscious' and referred to above, made to the jury by the trial judge departed from accepted and long-standing principle. It was necessary to start from the proposition that if voluntariness was not conceded and the evidence before the jury provided a sufficient basis whether the conduct in question was a voluntary or willed act of the accused, it was for the Crown to satisfy the jury beyond reasonable doubt that the conduct charged as a crime was the voluntary or willed act of the accused. If it was not, the accused should have been acquitted.

56 However, it was submitted that the statement referred to above and which founded the basis of Ground 18 of the appeal, tended to detract from a correct description of the obligation of the Crown to prove all of the elements of its case, including the voluntariness of the applicant's conduct in the driving of his motor vehicle. It was submitted that the direction tended to confuse the obligation of the trial judge in determining whether or not to leave the question of voluntariness to the jury, with the question to be answered by the jury in the event that the issue was left to them to decide. In particular it was contended that it was no part of the jury's task to be 'satisfied that there could at least be a reasonable possibility' that the accused's actions were involuntary. Rather it was submitted that if the question of whether the accused's alleged actions were conscious, voluntary and deliberate was in issue, it was for the Crown to prove that such actions were performed consciously, voluntarily and deliberately.

57 It was submitted that having determined to leave voluntariness to the jury, essentially all that was required of the trial judge in charging the jury on the law on the issue was to direct that it was for the Crown to prove beyond reasonable doubt that the driving of the motor car by the applicant at the relevant times was a voluntary or willed or deliberate act.

58 Furthermore, it was argued that in approaching the task in this case in the manner she did, the trial judge was at risk of conveying the impression to the jury that there was a legal presumption that the applicant's conduct was voluntary, and as a consequence, the Crown was relieved of any requirement to prove this element of the offences.

59 In addition, it was submitted that the direction given to the jury was incomplete, and indeed had the potential to be misleading. In this passage there was no mention made by the trial judge of the ultimate consequence of a finding of 'a reasonable possibility the accused's actions are involuntary'. Rather than directing the jury that if they came to such a conclusion they must acquit the accused, the trial judge merely told the jury that in that circumstance, '...the Crown must remove the reasonable doubt raised'.

60 The respondent argued that notwithstanding the above statement no miscarriage of justice had occurred. It was submitted that read as a whole the charge did not undermine the presumption of innocence nor reverse the onus of proof. It is true, as submitted by counsel for the respondent that the charge contained numerous and correct statements as to the onus and standard of proof and that the jury were instructed repeatedly that before they could return a verdict of guilty on any count they needed to be satisfied beyond reasonable doubt that the accused's actions were 'conscious and voluntary ie. intentional'. It is also true that the above statement was made with the consent of both counsel for the Crown and for the accused. In this regard it might be observed that her Honour was given little assistance by counsel in the task before her.

61 It is apparent to us that the trial judge approached her difficult task in a most conscientious manner. Indeed on one view the impugned statement made by the trial judge accords with authority. In Falconer Mason CJ, Brennan and McHugh JJ stated:

In the absence of some contrary evidence, it is presumed -- sub silentio, as Barwick CJ said -- that an act done by a person who is apparently conscious is willed or done voluntarily. That presumption accords with, and gives expression to, common experience. Because we assume that a person who is apparently conscious has the capacity to control his actions, we draw an inference that the act is done by choice. Keeping steadily in mind that the concepts of will and voluntariness relate merely to what is done, not to the consequences of what is done, it would be an exceptional case in which a person, apparently conscious, committed an act proscribed as an element in a criminal offence without choosing to do so -- or, at the least, without running the risk of doing so - or, at least, without running the risk of doing so. ... The presumption that the acts of a person, apparently conscious, are willed or voluntary is an inference of fact and, as a matter of fact, there must be good grounds for refusing to draw the inference. Generally speaking, grounds for refusing to draw the inference appear only when there are grounds for believing that the actor is unable to control his actions. Although the prosecution bears the ultimate onus of proving beyond reasonable doubt that an act which is an element of an offence charged was a willed act or, at common law, was done voluntarily, the prosecution may rely on the inference that an act done by an apparently conscious actor is willed or voluntary to discharge that onus unless there are grounds for believing that the accused was unable to control that act.[18]

... if the evidence is capable of raising a doubt either at to voluntariness or the existence of any actual intent, the jury should be told that if the evidence raised in their mind a reasonable doubt as to voluntariness or actual intent, it is for the Crown to remove that doubt from their minds and to satisfy them beyond reasonable doubt that the accused voluntarily did the act with which he is charged and that he did so with the actual intent appropriate to the crime charged. They should be instructed as to the meaning and scope of voluntariness and as to the precise intent which the crime charge requires.[19]

63 On one view the statement made by the trial judge did little more than summarise the principles set out in the above authorities in a truncated way.

64 However, it was for the judge and not for the jury to determine whether there was a sufficient evidentiary basis for the issue of voluntariness to be left to the jury. Once the judge had determined that there was such a basis it was then a matter for the jury to decide whether the prosecution had proved beyond reasonable doubt that the relevant act was conscious, voluntary and deliberate. Similarly it is for a judge to determine whether or not there is a sufficiency of evidence to leave self-defence or provocation to a jury. Then it is a matter for the jury to determine whether the prosecution has proved beyond reasonable doubt that the accused did not act in self-defence or under provocation. We see no distinction between these circumstances and the present case. In our view this is made clear by the following statement of Barwick CJ in Ryan:

If voluntariness is not conceded and the material to be submitted to the jury wheresoever derived provides a substantial basis for doubting whether the deed in question was a voluntary or willed act of the accused, the jury's attention must be specifically drawn to the necessity of deciding beyond all reasonable doubt that the deed charged as a crime was the voluntary or willed act of the accused. If it was not then for that reason, there being no defence of insanity, the accused must be acquitted. No doubt care will be taken by the presiding judge that the available material warrants the raising of this specific issue. In doing so, he will of course have in mind that the question for him is whether upon that material a jury would be entitled to entertain a reasonable doubt as to the voluntary quality of the act attributed to the accused.[20]

65 In all the circumstances and notwithstanding the fact that we are confident that the trial judge considered that the direction in question accorded with High Court authority, the direction was in our view a misdirection. A criminal trial does not 'start' with any proposition other than the presumption of innocence.

66 It is however appropriate to add the following. In this trial there was no dispute that the applicant was physically the driver of the vehicle, or that in relation to count 5 his driving of the motor car was not the cause of the serious injuries suffered by Nicholas Cummins. The issue which the applicant sought to raise in relation to each of the counts of which he was convicted was, that at the relevant time, his actions in driving the motor car were involuntary. If this issue was before the jury properly the onus of proof was upon the prosecution to establish that the actions of the applicant were voluntary actions. As stated by Mason CJ, Brennan and McHugh JJ in Falconer:

The accused bears no ultimate onus of proving that his act was not willed, but he bears the evidential onus of rebutting the inference that his act was willed, and there is no occasion for the jury to consider the possibility of an unwilled act unless that evidential onus is discharged.[21]

If the accused is able to point to or produce evidence from which it could be inferred that there is at least a reasonable possibility that his act was involuntary as a result of a state of automatism, the Crown in effect bears the onus of removing the reasonable doubt thereby raised, by establishing that the act was voluntary.[22]

68 Most of the difficulty which arose in the trial of this case arose by reason of the admission of evidence of a psychologist, Dr Gibbs into the trial. There was evidence before the Court that the applicant had been punched to the head on one or two occasions as he was seated in his car and after the driver's side window was broken. This incident took place some time between 8.00 pm and 9.00 pm near the intersection of Lincoln Road and Buckley Street in Essendon. Thereafter, the applicant drove some distance away from the point where he was assaulted before executing a U-turn. He then drove his vehicle at the group of youths who were in a driveway on the northern side of Buckley Street causing injury to Nicholas Cummins. The applicant left the scene and did not return.

69 At 9.01 pm the applicant's motor vehicle was intercepted by police. The interception took place approximately two kilometres from the intersection of Lincoln Road with Buckley Street. At the time of interception police observed that the applicant was bleeding from the face. At 9.40 pm the applicant arrived at the Moonee Ponds police station, having been arrested by police. He soon thereafter was examined by an ambulance officer. The applicant told the ambulance officer that he had sustained a kick to the head when one of the youths had kicked in his window. Upon examination the ambulance officer found that the applicant was alert and orientated. The applicant denied losing consciousness at any stage, denied any headaches or neck pain and denied any neuromuscular symptoms, chest pain or shortness of breath. On the Glasgow Coma scale he scored 15 out of 15. The applicant was interviewed by police, the interview commencing at 11.02 pm.

70 In the course of the interview by police the applicant described his injuries as being 'lacerations to the face and arms as a consequence of a window being kicked in and shattered in my face'. There was no suggestion by him that he had suffered any other injury.

71 When the proceeding finally came on for trial in August 2008 and at the close of the prosecution case, counsel for the applicant sought to rely upon the evidence of a psychologist, Dr Andrew Gibbs. The trial had commenced before a jury on 5 August 2008. Dr Gibbs had produced a report dated 10 August 2008. The prosecutor submitted that Dr Gibbs should not be permitted to give evidence. It would appear that the principal basis of the Crown's resistance to the admission into evidence of the report was based upon the late delivery of the report and the non-compliance of the applicant with the Crimes Criminal Trials Act 1999. However, it was further submitted by the prosecutor that Dr Gibbs should not be permitted to give evidence based upon the contents of his report in that he was not qualified as an expert and that the contents of his report contained 'generalisations', rather than opinions. Ultimately the judge permitted the evidence to be called.

72 Dr Gibbs gave evidence that he was a registered psychologist who had been practising in the field of neuropsychology since 1989. He stated that he had worked as a senior neuropsychologist for the Neuropsychology Unit of the Royal Melbourne Hospital for a period of 12 years. He said that that unit dealt with complex and difficult and unusual cases. He said that he had not examined the applicant. The following questions were put to him in evidence in chief:

QUESTION: ... if I can give you a set a circumstances; if someone is said to have received a head injury and shortly afterwards is said to have done a U-turn in a car and then driven off the road on to a nature strip and hit someone, and then hit some objects, is there - can there be a link between the head injury and the subsequent driving of that person in that manner as a result of the injury sustained?

ANSWER: One of the effects of head injury is that a person can have a confusional state, they can become disorientated; that is, not be aware of themselves in relation to their surroundings. In instances of head injury, you can have behaviour where a person might wander, they might be able to walk and talk but they may not be engaged in fully sort of sequenced and co-ordinated activities.

QUESTION: Are there psychological classifications for this kind of behaviour?

ANSWER: If a person has a head injury they would be assessed by the ambulance via the Glasgow Coma style and that has categories related to verbal response which look at aspects of orientation, confusion and the like. There are categories within the broader guidelines of society such as the American Academy of Neurology where they have categories for head injury where this may or may not occur without loss of consciousness; that is, with categories related to mild traumatic brain injury or concussion.

QUESTION: With respect to the potential for psychological disturbance, where someone is exposed to a fearful situation in addition to a head injury, what are those potential psychological disturbances?

ANSWER: Well, when we look at fear, fear is an emotion and it has a number of components. It has the psychological component of arousal and that can be guided as an automatic response through things such as adrenalin. So you have the physical component to the emotion. You also have the psychological component to emotion in terms of how we interpret that physical feeling.

QUESTION: What is that psychological component?

ANSWER: It's whether we actually perceive a threat, what response one makes in relation to that threat. There can be sort of responses in terms of perceiving what the threat is.

QUESTION: These responses in relation to perception, are there changes in those responses as a result of the head injury and a result of the fear?

ANSWER: In relation to the first, the head injury, there are changes with respect to attention, the ability to focus your attention and to integrate what's occurring in a sequential manner. Part of that also, a significant feature of head injury or a concussion is confusion, plus disturbance of memory. So in cases of head injury, what you can get is what you can get, say, a reduced Coma score where that provides an indication of the injury but you also get changes in memory or what we call post traumatic amnesia around the time of the blow.

QUESTION: There's no evidence in this case of concussion or amnesia but with respect to confusion, what kind of confusion would you expect after a head injury? Are you able to say?

ANSWER: Well a person can appear stunned or dazed. Their ability to take in information and attend to that information and to organise it in a coherent sequential manner can be impaired.

QUESTION: What about their motor skills?

ANSWER: Well, with respect to motor skills, you can have people engaged in acts with which they're quite familiar. So if you've had a routine sort of act and you're quite knowledgeable of that, you might be able to continue to engage in that act. You can become inco-ordinated in terms of your motor responses. The person also can engage in wandering behaviour as part of that response. If they're walking, their gate or their walking can be affected as well.

QUESTION: You spoke about behaviour which they have practised before, are they capable of engaging in that behaviour notwithstanding motor co-ordination difficulties?

ANSWER: You could engage in those gross acts because there's aspects of memory to do with motor function which we call procedural memory.

QUESTION: What's that?

ANSWER: Procedural memory has got to do with your memory for motor acts. We have certain routines within our head, our brain, as to how we do things because we have done them so often. That doesn't necessarily mean that the precision with which we do them or the co-ordination with which we do them might differ but we can still engage in those sort of gross acts - motor - so it's not as if you're sitting still doing nothing.

QUESTION: When you say "gross acts" what kind of acts?

ANSWER: You can have people walking and talking and yet still be confused and they can appear to the casual observer as sort of being relatively intact when in fact they're not.

QUESTION: With respect to I think you said "relatively intact when in fact they're not" what do you mean by they're not, relatively?

ANSWER: It means that they can have quite subtle changes in their thinking where without sort of detailed or specialist examination of them they might give the appearance of having their full capacities but if you actually tested them you might find actual difficulties. So for example if we're testing someone for their level of orientation, it's not just a case of just ticking a box "Orientated". You ask questions of the person. You might say "Well, what's your name? Are you orientated to person? Where are you? Are you orientated to place? Do you know where you are in relation to other things, other objects?" You might ask "Do you know the time? Are orientated to time and day, so are you able to position yourself in time, place and person?" So you will ask specific questions. It's the same with things to do with confusion and with memory. With memory, it's not just the question of - if you actually [ask] someone with a memory disorder you can actually ask them a question about something with which they are quite familiar and they will actually respond quite well. It's their ability to deal with events here and now that are ongoing where the memory compromise or the difficulty occurs. Often we talk about memory disorders and people think "I can't remember things in my past". In fact it's actually [an] ability to lay down memories over time and you can test that as well by getting a person to remember three objects for example and then come back a couple of minutes later and asking what they remembered, so you can see whether they have got any ongoing memory function.

QUESTION: What is meant by "disassociation"?

ANSWER: Disassociation is a psychological response or process. It's where a person is not able to integrate different aspects of their perceptions, such as what they see, they hear, they feel. They can't sometimes integrate memories and they can't integrate themselves in relation to who they are in relation to the environment. So you can get a phenomenon known as "depersonalisation". That is that the person sees themselves as somewhat detached from himself, and I can sometimes describe this as looking down on this thing just sort of happening; the event is happening, "but I was removed from them from where I am in my body". They can also get a sense of "derealisation" where the physical world around them may not feel as though it is tangible or real: it has a sort of dreamlike quality.

QUESTION: Are these disassociate states, do they have any relevance with respect to a head injury at all?

ANSWER: In some respects the processes are similar but I see the psychological responses due to, say, a trauma or fear, such as a disassociative response or a physiological response as being slightly mechanical effects of a head injury. But they are quite similar but they are two separate things.

QUESTION: This disassociative state, what affect does this have on a person's capacity to control what it is that they do?

ANSWER: The classic case of this is where the person sort of experiences sort of extreme trauma. Often there's a threat, and the perceived threat is actually the perception that their life is at threat. So there's often in response to extreme threats to life and fear. The individual can become disconnected from their environment and not integrate everything that's happening around them, and they might engage in activities to which they don't have full capacity to be able to do and say "Am I in voluntary control? Can I choose to do this or not to do this?" because they do not have access to any perceptions in an integrated manner.

QUESTION: If that can come from fear, can it come from a head injury as well?

ANSWER: Yes, the ability to have full capacity to make a reasoned decision is means you will say "I will do the act" or "I will not do the act". It can be impaired in the sense that it is not fully integrated or informed by one's attention, perceptions, memory, motor, and those sort of responses.

QUESTION: During that state, can there be any effect on motor co-ordination?

ANSWER: Yes there can be motor responses. The person can be inco-ordinated - that is, that they don't have the same fine motor control. One of the ways in which that type of thing is examined if someone was to examine it through - and it wouldn't be through a neuropsychologist, ideally through a medical doctor - is to actually assess co-ordination. One of the ways they do is to say "I want you to touch my finder and then touch the top of your nose" and do that in alternating ways. A person who is inco-ordinated with actually do that, but then not strike their nose because their judgment in terms of the distance is impaired. The other thing is, you can get similar things where the perception in terms of space - the test for that might be that they will get a person to close their eyes and then get them to touch the tip of their nose. So you close your eyes, touch the tip of your nose, and thankfully you hit the middle of it. In other instances you will close your eyes and the thing will pass point - that is, it will not be accurate.

QUESTION: Would this state have any affects on the procedural memory that is for doing previously familiar motor acts?

ANSWER: You would be able to do gross motor acts: the precision with which you do them might be impaired.

QUESTION: Would driving a motor car fall into the category of those gross motor acts?

ANSWER: Yes.

QUESTION: But the capacity to drove properly - would that be affected?

ANSWER: If one has had these sort of responses, then the capacity would be diminished.

73 The applicant did not give evidence at his trial. There was no evidence of head injury nor was there any evidence of a 'disassociated state' being suffered by the applicant. There was simply no factual basis upon which the opinion of the evidence of Dr Gibbs might be based.

74 Whilst it is clear that it is now widely accepted that, at common law, medical evidence tending to show that there was a malfunctioning of the mind so that a state of automatism was produced is admissible,[23] there must nevertheless be a factual basis upon which such medical evidence might be admitted. As stated by Heydon JA in Makita (Aust) Pty Ltd v Sprowles:

In short, if evidence tendered as expert opinion evidence is to be admissible, ... so far as the opinion is based on facts (observed) by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on 'assumed' or 'excepted' facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience' and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the Court cannot be sure of that, the evidence is strictly speaking no admissible, and, so far as it is admissible, of diminished weight.[24]

75 It is difficult for us to see what credible evidence there was that established the evidentiary onus of the applicant and which justified the admission of the evidence of Dr Gibbs.

76 That said, in the circumstances under which the trial was conducted the convictions must be set aside and a new trial ordered on counts 3, 4 and 5.

77 I have had the advantage of reading in draft the reasons for judgment of Kellam JA and Vickery AJA. I agree with the disposition proposed by their Honours for the reasons they give.

[1] In fact no evidence was led before the jury that Maggiolini had suffered any injury in the course of these events. By reason of this fact and at the close of the prosecution case the trial judge directed that the jury acquit the applicant of the charge of intentionally causing injury to Maggiolini, the subject of Count 2.

[2] It should be observed that the applicant, through his counsel argued that the jury could not be satisfied beyond reasonable doubt that the assault upon him occurred after the applicant first drove his car away from the group and that if that was the case, Count 1 arose in circumstances whereby the applicant was engaged in fleeing from them and thus, it was submitted, in circumstances of self defence.

[3] The applicant was found by the jury to be not guilty on this count.

[4] [2008] VSCA 13; (2008) 18 VR 586 (Chernov and Redlich JJA and King AJA).

[6] Criminal Charge Book (Judicial College of Victoria) 7.4.8.1.1.

[7] (1985) 157 CLR 523; [1985] HCA 43.

[11] (1967) 121 CLR 205; [1967] HCA 2.

[14] [1968] HCA 66; (1968) 119 CLR 47, 54-5; [1968] HCA 66.

[15] The latter sentence of the direction in question may well have been based upon the dicta of Barwick CJ in R v O'Connor [1980] HCA 17; (1980) 146 CLR 64, 88; [1980] HCA 17 but Barwick CJ did not suggest that one started with 'a proposition that acts are willed voluntary and conscious'.

[16] (1990) 171 CLR 30; [1990] HCA 49.

[18] [1990] HCA 49; (1990) 171 CLR 30, 40-41 (citations omitted) (emphasis added).

[19] [1980] HCA 17; (1980) 146 CLR 64, 88 (emphasis added).

[20] [1967] HCA 2; (1967) 121 CLR 205, 217 (emphasis added).

[21] [1990] HCA 49; (1990) 171 CLR 30, 43.

[22] (1990) 50 A Crim R 1, 4.

[23] See, for example, Cameron v The Queen (1990) 2 WAR 1 (Malcolm CJ, Wallace and Ipp JJ).

[24] [2001] NSWCA 305; (2001) 52 NSWLR 705, 743-4; [2001] NSWCA 305.