R v Poduska [2008] VSCA 147

Court of Appeal (Vic)|2008-08-18|Before: BUCHANAN and NETTLE JJA and MANDIE AJA

Criminal law - Culpable driving - Driving negligently or while under the influence of alcohol - Trial judge failed to identify the conduct of the accused upon which the Crown relied to prove the offence - Verdicts could not be supported having regard to the evidence - Verdicts of acquittal ordered to be entered.

Mr S Ward, Acting Solicitor for Public Prosecutions

1 The applicant seeks leave to appeal against his conviction on two counts of culpable driving which caused the death of another person.

2 In the applicant's trial in the County Court the facts were not in dispute. The only issue was whether the Crown had established that the applicant's conduct met the requirements of s 318(2)(b) or (c) of the Crimes Act 1958 ('the Act').

3 Section 318(1) provides that any person who by culpable driving causes the death of another person is guilty of an indictable offence. The relevant paragraphs of subsection (2) provide:

(2) For the purposes of subsection (1) 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; or

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

4 On 6 February 2004, the applicant, who was aged 24 years, met friends at the Terminus Hotel in Healesville. He stayed at the hotel from about 11 o'clock in the evening until 3 o'clock the next morning. The applicant and three friends left the hotel by taxi and travelled to a vineyard at Tarrawarra where the applicant was employed as a manager. A decision was made to drive around the vineyard. The applicant drove a four-wheeled drive utility. Two of the others were in the cabin, while the third person rode on the tray of the utility.

5 They saw a number of rabbits and decided to go rabbiting. The applicant drove to the manager's house and obtained a shotgun. When the party set out, the applicant drove and was accompanied in the cabin by one of his friends. The other two rode on the tray of the utility. It was very dark. The headlights of the utility were lit.

6 The applicant drove along a track beside a fence on the property. He turned away from the track and drove through long grass and shrubs and between trees beside a bank leading to a creek. The offside wheels of the utility broke through the edge of the gully. The utility slid down the slope and overturned. The two men on the tray of the utility died when they were crushed between the utility and the bank.

7 Police officers were called. They smelled alcohol on the breath of the applicant. Some two-and-a-half hours after the accident, the applicant's breath was analysed. The concentration of alcohol in his blood was recorded as .08%.

8 The Crown alleged that the applicant was guilty of culpable driving because he drove either negligently or whilst under the influence of alcohol.

9 At the conclusion of the trial, the jury returned a verdict of guilty on both counts. A plea was conducted and a total effective sentence of three-and-a-half years' imprisonment with a minimum term of two years' imprisonment was imposed upon the applicant.

10 The applicant seeks leave to appeal against the convictions on two grounds, first that the trial judge erred in failing to identify in his charge to the jury the conduct of the applicant upon which the Crown relied to establish either negligence or driving under the influence of alcohol and secondly that the verdicts were unreasonable or could not be supported having regard to the evidence.

11 In his charge the trial judge told the jury that, in order to establish that the applicant was guilty of gross negligence, the Crown must prove that the applicant 'unjustifiably and to a gross degree failed to observe the standard of care which a reasonable person would have observed in all the circumstances of the case', that 'his departure from the standard of care was such that it deserves criminal punishment' and that his driving 'involved ... a high risk that death or serious injury would follow.' Those directions reflected the law.[1] His Honour described the evidence but went no further. He explained the law in general terms and left it to the jury to apply the law to the facts of the case. He did not identify the particular conduct of the applicant upon which the Crown relied to prove culpable driving. As Winneke P said in R v Franks[2]:

The law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applies to the facts of a particular case.

The Court in that case held that the charge was deficient in that the trial judge failed to tell the jury that the Crown case depended upon establishing that the applicant continued to drive his semi-trailer when he knew or ought to have known that there was a real risk that he would fall asleep or lose control of his vehicle.

12 Counsel for the respondent submitted that in this case there was no need for the trial judge to tell the jury what they could take into account to determine gross negligence because none of the facts was in dispute. Counsel relied upon R v Hurley and Murray[3]. In that case the accused were charged with being accessories after the fact to the felony of escape. There was no dispute as to the acts of assistance. The sole question was whether the accused should be relieved of criminal responsibility for those admitted acts by reason of threats of death or violence. The Court said:

In these circumstances, we do not consider that a reasonable jury would have any difficulty in applying the law as enunciated by the judge to the facts as they found them to be.

13 That is not this case. In the present case the resolution of one factual issue did not determine guilt or innocence. Rather, the question was whether a conclusion of gross negligence could be drawn from a number of circumstances attending the accident, including the speed at which the utility was driven, the place at which the utility was driven, the limited or reduced visibility of the driver by reason of darkness, driving the utility with passengers on the tray of the utility, the driver being affected by alcohol and the driver being affected by tiredness. Unless the trial judge identified the matters upon which the Crown relied to prove gross negligence, there was a risk that the jury may have taken into account matters which the Crown did not rely upon or could not have relied upon.

14 The same deficiency attends the trial judge's directions with respect to the allegations that the applicant drove while under the influence of alcohol. His Honour failed in his charge to identify the matters relied upon by the Crown to establish that the applicant did not have proper control of the utility.

15 The success of the foregoing grounds would lead to setting aside the verdicts. It is necessary to turn to the grounds that the verdicts were unreasonable or could not be supported having regard to the evidence in order to determine whether verdicts of acquittal should be entered or there should be a new trial.

16 In rejecting the submission that there was no case for the applicant to answer, the trial judge ruled that it was open to the jury to find that driving at night, off the track in proximity to a gully and with knowledge of the topography constituted negligence. To those elements counsel for the respondent in this Court added the late hour after the applicant had spent the day working and had attended a gymnasium and hotel, the applicant's consumption of alcohol and the vulnerability of the two friends on the tray of the utility. In those circumstances, it was submitted, it was for the jury to determine whether the applicant's driving constituted negligence to a gross degree.

17 On the other hand, there was a substantial body of evidence which was consistent with the exercise of care, even caution, on the part of the applicant. Evidence was given by a vigneron, a former policeman and a former solicitor who had known the applicant for many years. They deposed to the applicant's integrity, commonsense, diligence and reliability. An army officer under whom the applicant served spoke glowingly of this commonsense and reliability. The applicant had some six years' experience as a driver and often drove the utility. He was familiar with the ground over which he drove. He knew of the creek and its embankment.

18 A police sergeant, who attended at the scene of the accident at 5.35 am, gave evidence that at the point at which the utility slid into the gully, which he called a dam, the edge was not in line with the rest of the bank as a result of a collapse in the bank and 'had scrub and grass and stuff growing around it.' He was asked whether the collapsed section had been camouflaged and said:

Well, the rest of the ground all around that edge was the same as the rest of it.

He also said that there was a red bush growing from the gully which would have given the applicant 'the impression that it was on the outside edge of the dam wall.' He agreed with the proposition that 'when you see the bush you would think that there is land in-between where you are and the bush.'

19 The passenger in the cabin of the utility said that the applicant drove carefully and that when the utility slipped into the gully, it was 'edging along.' This evidence was to be considered in the light of the witness's statement that when he left the hotel he was affected by alcohol 'close to the highest degree.' Nevertheless, his evidence of the speed of the utility was corroborated by a senior constable of police, who attended at the scene of the accident and gave evidence that the utility had not been travelling at any great speed. Another policeman, who was attached to the major collision investigation unit, gave evidence that the utility's wheels broke through the edge of the lip of the embankment and slid down the slope. The wheels of the utility had not left the ground. His findings were consistent with the utility travelling slowly, at a speed which he said could have been as low as 5 kilometres per hour. In a record of interview the applicant said that he was travelling at a speed of between 5 and 10 kilometres per hour.

20 The sergeant of police who attended at the scene and who had been a member of the police force for 24 years, spoke to the applicant at the scene of the accident and gave evidence that:

A medical practitioner gave evidence that the effect of alcohol might vary greatly between individuals, especially at levels below .10 per cent.

21 Accordingly, there was evidence that, at the point at which the utility slid into the gully, the applicant was driving carefully and slowly and believed that a bush growing on the bank was between the utility and the edge of the gully. The jury was the body entrusted with the primary responsibility of determining the applicant's guilt or innocence. Nevertheless, in this case there was evidence of circumstances attending the accident, which, in my view, militated against the conclusion that the applicant was guilty of gross negligence, that is, such a departure from the standard of care as to deserve criminal punishment.

22 The applicant was not driving at a speed that was inappropriate in the circumstances, nor driving aggressively or erratically. He was tired and had been drinking, but the evidence did not establish that on that account the applicant did not exercise proper control of the utility. In my opinion an hypothesis consistent with innocence was open on the evidence.[4] No reasonable jury, properly directed and attending to the evidence, could be satisfied of the applicant's guilt.

23 I am also of the opinion that there was no evidence which could found the conclusion that the applicant did not maintain proper control of the utility or was under the influence of alcohol to such an extent as to be incapable of exercising proper control. The evidence rather pointed to the conclusion that the applicant did have proper control and that the accident was due to his mistaken belief, for which there were reasonable grounds, that the utility was well short of the edge of the gully.

24 This Court had the benefit of a helpful report from the very experienced trial judge, in which he said:

The prosecution case was not a compelling one. The evidence of negligence was there, but it was not clear cut. Further, the evidence of impairment by the consumption of alcohol did exist, but the blood alcohol level was marginal. All in all, I thought it was not a strong case.

I acknowledge that I expected an acquittal. In result, the verdict was otherwise. Had I the right to take the case from the jury, I would have done

25 As the Court in R v Marziale[5] pointed out, the weight to be given to a report by a trial judge will vary according to the circumstances of each particular case. That weight will generally be the greater when the opinion expressed in the report is based upon factors the assessment of which depends principally upon the atmosphere of the trial or the observations of the manner in which evidence has been given. In the present case the absence of any factual dispute lessened the importance of the manner in which the witnesses gave their evidence, but the trial judge did have the advantage of experiencing the atmosphere of the trial.

26 For the foregoing reasons I am of the opinion that the verdicts could not be supported having regard to the evidence.

27 Accordingly, I would set aside the verdicts entered below and order that verdicts of acquittal be entered.

28 I have had the advantage of reading in draft the reasons for judgment of Buchanan JA. I agree with his Honour that the trial miscarried because of the judge's failure to direct the jury as to the matters on which the Crown relied for the purposes of s 318(2)(b) of the Crimes Act 1958.[6] The failure to do so in my view created a real risk of the jury determining guilt on a basis which was not contended for by the Crown.[7] Consequently, I agree with Buchanan JA that the conviction should be quashed.

29 In case it matters, I doubt that it was necessary for the judge to say any more than he did about the alternative case under s 318(2)(c) of the Crimes Act 1958. It

would have been better if his Honour had precisely identified the matters on which the Crown relied to establish that the applicant was so much under the influence of alcohol as to be incapable of having proper control of the utility.[8] But given that he carefully outlined the test for the purpose of s 318(2)(c);[9] then summarised all of the evidence pertinent to its application;[10] and then concluded with a direction that there was no dispute that the applicant was affected by alcohol, the issue was whether he was affected to the extent necessary to meet the test,[11] I suspect that the effect was probably much the same.

30 The real question in this appeal, however, is whether we should direct a judgment and verdict of acquittal to be entered or direct that a new trial be had.[12]

31 Almost a century ago Griffith CJ said in Peacock v The King[13] that the power to order a new trial was one which should only be exercised with great caution. As his Honour put it:

...I think it should be used with great caution. I do not think it was intended that a new trial should be granted as of course in every case where there has been an irregularity. I think the proper rule is that where there was evidence to go to the jury and the error was of such a nature that, if it had not been committed, the verdict would probably have been the same, a new trial may be granted. On the other hand, if on the whole case, it is reasonably probably that, but for the error complained of, the verdict would or might have been different, a new trial should not be granted.

32 But the approach now is different. As Kirby J remarked in R v Taufahema,[14] a number of recent decisions of the High Court have emphasised the normal primacy of the prosecution authorities in determining whether or not to put up an accused for a second trial after his or her first trial has miscarried:

Observing this principle of restraint, in instances where an appellate court has concluded that a miscarriage of justice has occurred, even one probably involving the conviction of an innocent person, this Court in the exercise of its powers has generally left it to the prosecution authorities to decide whether or not to elect to have a retrial to renew its accusation of criminal wrongdoing.[15] Occasionally, in particular cases, the Court has specifically drawn to notice the possibility that, although a retrial is ordered, it might not in fact follow.[16] Nevertheless, ordinarily, this Court has left it to prosecuting authorities. The substitution of orders of acquittal has been rare; orders for retrial, on the other hand, are common.[17]

33 As the majority in Taufahema[18] explained, that is so because:

An order for acquittal conflicts with 'the desirability, if possible, of having the guilt or innocence of the [accused] finally determined by a jury which, according to the constitutional arrangements applicable ... is the appropriate body to make such a decision.'[19] In Reid v The Queen[20] the Privy Council approved the following statement of the Full Court of Hong Kong[21]:

It is in the interest of the public, the complainant, and the appellant himself that the question of guilt or otherwise be determined finally by the verdict of a Jury, and not left as something which must remain undecided by reason of a defect in legal machinery.

The reference to 'complainant' is to be explained by the fact that that case was one in which a doctor allegedly raped a patient. It is not only those who live to complain about crime whose interests are relevant, but also the relatives and friends of those who do not. The Full Court of Hong Kong described the case before it as one 'of peculiar heinousness', and so is this case. The question, then, is whether there is some good reason for not allowing a jury to decide whether the prosecution can prove its case, and for allowing the matter to remain undecided because of the defects in the first trial.[22]

34 The principal 'good reason' not to order a new trial is if it appears to a court of criminal appeal that the evidence at the first trial was insufficient to justify a conviction.[23] As Gibbs, CJ stated in Gerakiteys v The Queen,[24] it would conflict with basic principle to order a new trial in a case in which the evidence at the original trial was insufficient to justify a conviction. According to ordinary conceptions, an accused should not be twice placed in jeopardy of conviction on the basis of an inadequate case, and the Crown should not be permitted to mend its hand by presenting evidence which it failed to present at first.[25]

35 In this case, however, I consider that there was sufficient evidence to justify a conviction. On the applicant's own admission to police, he was driving at night, in the dark, off the track, at a speed of between 10 and 15 kph,[26] in an area in which he knew was close to the culvert, and into which he knew or should have appreciated that the utility could tip if driven too close to the edge. Furthermore, as he said, while he was 'probably not particularly drunk',[27] he was 'mentally and physically tired',[28] to an extent which would 'probably' have 'affected [his] decision making',[29] to the point that '[his] judgment was impaired',[30] and he got 'too close to the edge[31] (scil. 'just drove too close to the edge')',[32] which was 'on [his] right side',[33] because he was 'probably driving into there (scil. 'along the creek...where all the rabbits are')'[34] looking at the left hand side.[35] In my view, that evidence permits of the conclusion beyond reasonable doubt that the applicant's standard of driving fell so far short of the standard of care which a reasonable man would have exercised in the circumstances, and involved such a high risk of death or grievous bodily harm to the men standing on the tray of the utility, as to warrant criminal punishment.[36]

36 Additionally, once the evidence to which reference has been made is combined with the unchallenged expert opinion of Dr O'Dell, I consider that a jury properly instructed could also properly conclude that the applicant was so affected by alcohol as to be incapable of having proper control of the utility, or at least incapable of proper control in the particularly difficult and demanding circumstances in which the utility was being driven: in pitch blackness, off the track, in long grass, over rough terrain, close to the culvert into which it tipped. For apart from telling the jury that the applicant had a blood alcohol concentration of between 0.08 and 0.1% (which all jurors would know to be close to twice the legal limit, and the effects of which the majority of jurors would have some experience), and that the applicant's driving would have been adversely affected by that amount of alcohol at the time of the accident (a fact of which all jurors would also be aware), Dr O'Dell also told the jury that deterioration in divided attention tasks (in this case driving while looking for rabbits in the dark in rough country close to the culvert) occurs at low levels of blood alcohol; information processing is seen to be impaired at levels of below 0.08%; visual function is quite sensitive to the effects of alcohol; alcohol ingestion is associated with abnormal eye movements and difficulty in tracking moving objects, delayed recovery from glare, impaired colour discrimination and tunnel vision; and that, in combination, the effects of alcohol have been shown by innumerable studies and trials over many years to degrade driving performance.[37]

37 I acknowledge that there was also evidence to which Buchanan JA refers that the applicant was not apparently drunk. But as it appears to me, with respect, that is hardly decisive or even very persuasive. As Dr O'Dell told the jury: 'The gross un-coordination associated with popular impression of drunkenness may not appear until levels of 0.2% in seasoned drinkers'. And as Dr O'Dell made plain, the fact that it may not do so in no way detracts from his evidence as to the other effects of the substance.

38 So to say is not to deny that a jury properly instructed could reasonably take a view of the evidence which is consistent with the applicant's innocence. As Buchanan JA has demonstrated, there is little doubt that they could do so. But with respect, the question at this stage is not whether the jury acting reasonably could take a view of the evidence consistent with innocence, but rather whether acting reasonably they could exclude every inference but that of guilt.[38] And for the purposes of that exercise, it is necessary (just as it is necessary for a trial judge when determining whether to direct an acquittal)[39] to assume all inferences most favourable to the Crown that can reasonably be drawn from the primary facts.[40]

39 As Jordan, CJ said in R v Rothery[41] (in a passage which was expressly approved by Menzies J (with whom Dixon CJ agreed) in Plomp v The Queen[42]):

the rule that where the evidence of guilt is circumstantial it is necessary that it should, to a moral certainty, exclude every hypothesis but that of guilt, is not a rule for determining whether evidence is to be believed or not: it has to do, not with conflicting evidence, but with conflicting inferences which may be drawn from the circumstances. It is trite law that if the trial Judge is of opinion that the evidence could not warrant a conviction he may direct an acquittal. If he does not, but leaves it to the jury and they convict, a Court of Criminal Appeal, if of the same opinion, can and should do what he could have done in the first instance; and this is contemplated by s. 6: R. v. George[43]; Halsbury's Laws of England, 2nd ed., vol. 9, pp. 167, 168. In this respect, there is no difference in principle between cases where the evidence is in whole or part direct and those in which it is wholly circumstantial'. It seems to me that exactly the same principle was applied by this Court in Peacock v. The King_[44]_. Barton, J. said:-- 'Whether the fact, or that body of facts which is called the `case' is capable of bearing a particular inference, is for the Court, and unless it is so capable, the Court's duty is to withhold it from the jury, as a single fact or as a case. But when the case is undoubtedly capable of the inference of guilt, albeit some other inference or theory be possible, it is for the jury, properly directed, and for them alone, to say not merely whether it carries a strong probability of guilt, but whether the inference exists actually and clearly, and so completely overcomes all other inferences or hypotheses, as to leave no reasonable doubt of guilt in their minds.[45] O'Connor J. said:-- ' ... can it be said reasonably that the jury were not entitled to draw the inference of guilt against a doctor, charged as the prisoner has been, who will not explain the death of a patient in his hospital, whom he alone was attending, his secret disposal of her body, his burning of her clothes, and his attempt to remove all evidence of her ever having been in his hospital and under his care? They were not bound to draw that inference; another jury might arrive at the opposite conclusion.

But I have no hesitation in affirming as a matter of law that the verdict which the jury did find was open to them on the evidence.[46]

40 Hence, as Menzies J went on in Plomp[47] to observe, the question is not whether a court of criminal appeal thinks that the only rational hypothesis open upon the evidence was that the accused committed the crime alleged. It is rather whether the court thinks that upon the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused committed the crime alleged.

41 The passage from the judgment of Griffith, CJ in Peacock v The King earlier set out suggests that another reason not to order a new trial is if it is not reasonably probable that a second jury would convict. But that is no longer necessarily the case. In Taufahema, the majority gave its assent to the view of the Privy Council in Reid v The Queen[48] that, provided there is evidence on which a jury could convict, 'it is not necessarily a condition precedent to the ordering of a new trial that the Court of Appeal should be satisfied of the probability that it will result in a conviction';[49] and that, even if on the second trial an acquittal is more likely than a conviction, a second trial can be ordered.[50] Similarly, in the passage of the judgment of Kirby J earlier set out, his Honour embraced the notion that a court of criminal appeal should ordinarily leave it to the prosecution to determine whether the strength of the case warrants putting up the accused a second time.

42 Perhaps, if the prospects of success were so weak as to mean that the prosecution was almost certainly bound to fail, it would be appropriate to enter a judgment and verdict of acquittal.[51] But in my view this is not a case of which the 'substantial plausibility' is 'far from clear'.[52]

43 There are then some further factors to be considered in deciding whether or not to order a new trial. The power to order a new trial involves the exercise of a broad discretion[53] and thus, as McHugh J observed in Jiminez v The Queen,[54] other relevant considerations may include whether it would be fair to allow the Crown to put its case in a different manner at the retrial (the matter considered in Taufahema), the period of delay since the events in issue,[55] the amount of any sentence imposed on an accused already served[56] and the moral culpability of the accused in relation to the alleged offence. Some of those considerations were analysed by Murphy, Deane and Dawson JJ in King v The Queen.[57] Further factors noted in Taufahema[58] are whether the accused has been released from custody, whether the ordeal of a further trial would be such that the accused should have to undergo it through no fault of his own, and whether the interests of justice require it. The judgment of Kirby J in Dyers v The Queen[59] includes a comprehensive exposition of the considerations which may be relevant. But the key factor is 'the interest of the public...that those persons who are guilty of serious crimes should be brought to justice and not escape it merely because of some technical blunder by the judge in the conduct of the trial or in his summing up to the jury.'[60]

44 In this case two young men were killed and it is not in issue that the applicant was the driver of the vehicle that killed them. There no dispute that at the time of the accident he had a blood alcohol concentration of almost twice the legal limit even if, according to his own estimation, he was 'not particularly drunk'. It is not disputed that he had been up all the night partying and, as he said himself, he was 'mentally and physically tired'. On his own admission, his decision making was 'probably affected' and his 'judgment was impaired' and in that state of inebriation and enervation, he 'just drove too close to the edge' of the culvert, which was on his right side because he was 'looking at the left-hand hand side'. With respect, the trial judge was right to rule that there was a case to answer.

45 The error or errors which necessitate that the conviction be quashed were technical and they were errors made by the judge, not the Crown. The Crown case may or may not be particularly strong but, for the reasons I have given, it is certainly not without substance. The Crown does not seek to put its case any differently to the

way in which it was put at the first trial; it seeks only to have the case considered by a jury with the benefit of proper directions. The events in issue are alleged to have occurred on 6 February 2004, which is now a considerable time ago, but not so long ago as to cause any relevant prejudice. The applicant is in prison but has only served nine months' of a sentence of three years and six months' imprisonment with a non-parole period of two years. Finally, in terms of moral culpability, and in contradistinction to the position in Jiminez, the Crown does contend that alcohol played a significant part in causing the accident.

46 All things taken into account, I consider that it is in the interest of the public, and of the deceased, and of the applicant himself that the question of his guilt or otherwise be determined finally by the verdict of a jury, and not left as something which must remain undecided by reason of a defect in legal machinery.

48 I have had the advantage of reading in draft the reasons for judgment of Buchanan JA. I agree that the trial judge should have identified for the jury the circumstances upon which the Crown relied to prove each of the two ways in which the charge was put in reliance upon s 318(2)(b) and (c) of the Crimes Act but that the judge failed to do so. The failure to do so in respect of either of these two counts would be sufficient to entitle the appellant to have the jury's verdicts set aside.

49 However, I further agree with Buchanan JA that verdicts of acquittal should be entered. In my opinion it was not open to a reasonable jury to be satisfied beyond a reasonable doubt that the appellant was driving the utility whilst under the influence of alcohol to such an extent as to be incapable of having proper control thereof. If anything, the evidence tended to suggest that the appellant was capable of having proper control of the utility at the relevant time or, at least, the evidence

was such that a hypothesis to that effect could not reasonably be excluded. Further, in my opinion, it was not open to a reasonable jury to be satisfied beyond a reasonable doubt that the appellant, in driving the utility, had failed '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 evidence no doubt supported a conclusion beyond a reasonable doubt that the appellant was negligent but I do not think that the circumstances were such that it was open to the jury to conclude that he was negligent 'to a gross degree'. At any rate, for the reasons stated by Buchanan JA, the evidence was such that the hypothesis that the appellant was not negligent 'to a gross degree' could not reasonably be excluded.

[1] R v De'Zilwa [2002] VSCA 158; (2002) 5 VR 408, 423 [46] (Charles JA); R v Shields [1981] VicRp 68; [1981] VR 717, 724 (Young CJ, Anderson and Brooking JJ); R V Wright [1999] VSCA 145; [1999] 3 VR 355, 356 [1] (Philips CJ and Charles JA) and 358 [9]-[12] (Callaway JA).

[4] Martin v Osborne [1936] HCA 23; (1938) 55 CLR 367, 375 (Dixon J); Knight v R [1992] HCA 56; (1992) 175 CLR 495, 503 (Mason CJ, Dawson and Toohey JJ).

[5] Unreported, Court of Appeal, Victoria, 18 April 1996 at 34 (Winneke P, Brooking JA and Southwell AJA). See also R v Franks [1999] VSCA 39; (1999) 105 A Crim R 377, 387-8 (Charles JA).

[6] R v Franks [1998] VSCA 100; [1999] 1 VR 518, 524 [17], 525[20], 526[23] and 531[44]; McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44, 49.

[7] R v Franks, ibid. 526[25]-[27].

[8] R v Burnside [1962] 2 VR 96, 97; R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, 33[18].

[12] Crimes Act 1958, s 568(2).

[14] [2007] HCA 11; (2007) 168 A Crim R 95, 137[144]-[145],in diss, but not in point of principle.

[15] See, eg, Mallard v The Queen (2001) 202 CLR 125.

[16] As In Stanoeveski v The Queen [2001] HCA 4; (2001) 202 CLR 115; Dyers v The Queen (2002) 210 CLR 285, 297[23]; Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125. See also Corns, 'The discretion of a Court of Appeal to order a new trial or a verdict of acquittal' (2006) 30 Criminal Law Journal 343, 353-4.

[17] Corns, 'The discretion of a Court of Appeal to order a new trial or a verdict of acquittal' (2006) 30 Criminal Law Journal 343, 355 (Tables 2 and 3).

[18] R v Taufahema [2007] HCA 11; (2007) 168 A Crim R 95, 114[51] (Gummow, Hayne, Heydon and Crennan JJ).

[19] R v Anderson (1991) 53 A Crim R 421, 453 (Gleeson CJ).

[20] [1980] AC 343, 350 (Lords Diplock, Hailsham of St Marylebone, Salmon, Edmund-Davies and Keith of Kinkel).

[21] Ng Yuk Kin v The Crown (1955) 39 HKLR 49, 60 (Gould, Gregg and Wicks JJ).

[23] The King v Wilkes [1948] HCA 22; (1948) 77 CLR 511, 518; Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198, 211.

[25] R v Taufahema [2007] HCA 11; (2007) 168 A Crim R 95, 114[52].

[36] R v Nydam [1977] VicRp 50; [1977] VR 430, 445; Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313, 333.

[38] Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495, 503.

[39] Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, 246 (Menzies J).

[40] Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 214-5; Case Stated by DPP (No 2 of 1993) [1993] SASC 4152; (1993) 70 A Crim R 323, 327 (King, CJ).

[46] [1911] HCA 66; (1911) 13 CLR 619, 670, 671, emphasis added.

[47] [1963] HCA 44; (1963) 110 CLR 234, 247; and see also 244 (Dixon CJ).

[51] _R v Hanso_n [2003] QCA 488[28]; R v Munro [2006] VSCA 94[36].

[52] [2007] HCA 11; (2007) 168 A Crim R 95, 136[141] (Kirby J, in diss, citing Gleeson CJ and Callinan J in diss).

[53] Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, 630; R v Bartlett [1996] VICSC 47; [1996] 2 VR 687, 699, and see Corns, 'The discretion of a Court of Appeal to order a new trial or a verdict of acquittal' (2006) 30 Criminal L aw Journal 343, 351.

[55] See also Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494, 520 (Dawson, Toohey and McHugh JJ).

[56] R v Ceylan [2002] VSCA 53; (2002) 4 VR 208, 219[26]; R v Redmond [2006] VSCA 75[18].

[60] [2007] HCA 11; (2007) 168 A Crim R 95, 113[49] (Gummow, Hayne, Heydon and Crennan,JJ, citing R v Anderson (1991) 53 A Crim R 421, 453 (Gleeson, CJ).

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