R v Rudebeck [1999] VSCA 155

R v Rudebeck [1999] VSCA 155 - VSCA 1999 case summary — Zoe

[7]

There was, of course, no direct evidence that the applicant was severely fatigued. Indeed, in the absence of evidence of medical or other physical examination or observation of him at the relevant time, or his own admission, it is difficult to envisage that there could be direct evidence of his fatigue. The Crown case based on fatigue was therefore necessarily very largely, if not entirely, circumstantial. It was, however, no worse for that. The judge carefully instructed the jury in the process of reasoning upon which the use of circumstantial evidence depends, including the drawing of inferences; and no exception was or could have been taken to the instruction. Further, the learned judge enumerated for the jury no less than ten matters that were included among those on which the Crown relied to provide a mosaic of fact against which an inference of fatigue might be safely drawn. These were: the failure of the vehicle to negotiate the roundabout safely, the sound condition of the roadway, the clear and fine state of the weather, the non-hazardous nature of the roundabout itself, the combined weight and size of the prime mover, the trailer and the load, the familiarity of the applicant with the driving of the prime mover and trailer, the "short minor swerve" (as the judge called it) of the vehicle observed by the witness Trotter not long before it reached the roundabout, some of the applicant's answers given in his first interview with the police suggesting confusion on his part, the onerous nature of the work schedule completed by the applicant over the month preceding the accident and the driving undertaken by the applicant on the day of the accident and leading up to it. The jury were, of course, entitled to have regard to these matters to the extent that they thought fit. Some might very well have deserved more weight than others. Importantly, however, they were matters which, to the extent that they were to be considered at all, deserved to be considered in association, rather than individually.

[16]

Such observations of the applicant and his vehicle as thereafter occurred before they reached the intersection suggested that the semi-trailer was being driven at or within the 60 k.p.h. limit along the Coleraine Road as it approached the roundabout. It is less clear at what speed the applicant took his vehicle into the necessary veer to the left and into the intersection, although the only reliable evidence suggests that it was not greatly in excess of the speed limit. However, whatever be the precise speed at which the semi-trailer moved, either it came into the intersection faster than it could safely be driven or the applicant as driver momentarily lost concentration to the extent that the semi-trailer failed to move around the intersection in the required and conventional manner. Instead, notwithstanding the amount of available road surface, it seems to have travelled virtually straight ahead into the roundabout so that the driver's side wheels of the trailer mounted the kerb of the centre island, cutting into the grass on that island, which immediately threw the heavily loaded trailer off balance. That movement, together with the forward momentum of the semi-trailer, pulled both prime mover and trailer hard to the left towards the footpath on the outer edge of the roundabout near to the entry, from the north-east, of the Mount Bainbridge Road, taking the semi-trailer so far off course as to prevent it from travelling straight ahead down the Coleraine Road into Hamilton. Although it seems that the prime mover was still substantially upright, the high load on the trailer did not right itself and went further over to about a 45° angle. Indeed the load was leaning so far over that it hit an electricity pole at a point a metre or so off the road surface towards the same footpath, cracking the base of the wooden pole and causing the suspended lamp to sag into the roundabout. Immediately thereafter the near side wheels of the trailer mounted the left hand kerb for a short distance before the road surface widened near the shops. The trailer continued to fall further to the left but the momentum of the vehicle carried it along another 30 or 40m. while at the same time its load of woodbark cascaded from the top of the trailer along the footpath and the side of the road for the same distance. In the end the trailer came to rest flat on its left-hand side with its front opposite the shops and the phone - and letterboxes in Coleraine Road.

[18]

What precisely caused the applicant's semi-trailer to career out of control in this way was, of course, the essential issue at the trial. Direct observations of the vehicle as it went through the roundabout were limited, the only witnesses purporting to describe that being imprecise in their recollection of detail and in one case being treated by counsel and judge as so unreliable as to lead the judge in his charge, in which otherwise his Honour strove consistently to avoid any contentious comment, to say that the criticisms of that witness's evidence were accurate so that he chose to give only the barest summary of his evidence. Apart from the applicant's own uninformative answers in the course of his first record of interview, the only reliable evidence was that of the course taken by the semi-trailer and that of the damage which it had wrought. For the present I mention only one other objective fact or group of facts. The semi-trailer's movements left behind a series of scuff, scrape and possibly gouge marks in the road surface extending directly from some six metres into that part of Coleraine Road from which the semi-trailer came, in a straight line across to and onto the edge of the centre island, thence to the eastern side of the roundabout and thereafter intermittently to the point where it came to rest outside the shops. The first scuff marks were not striking and seemed to come from the driver's side wheels of either the prime mover or more likely the trailer but they then increased in depth and severity as they approached the central island and eventually extended for some 28.8m. Thereafter the marks appeared to come from the left-hand side wheels, again more likely those of the trailer starting with obvious tyre marks and then deepening into score marks moving only slightly to the right, such as might suggest that the driver was desperately trying to bring the vehicle under control and into Coleraine Road. So far as the expert evidence went it seemed unlikely that any of these marks were directly caused by braking, the opinion being expressed that the scuff marks, at least, were caused by the tyres while under rotation sliding sideways and resulting from the steering wheel being turned to the left when travelling at some speed, in contrast to skid marks which are left by tyres under heavy braking, of which there was no indication from these markings themselves.

[23]

Although I do not think it necessary to set out in detail all the evidence of each of the witnesses called, or indeed the other evidence tendered at the trial, it is perhaps desirable that I should broadly indicate the kinds of evidence adduced from which the Crown sought to build up its case against the applicant. That evidence was criticised, both below and upon appeal, not so much for the untruthfulness or unreliability of the various witnesses (with one specific exception, being the evidence of Dr Rendell), but because it failed, so it was said, to establish beyond reasonable doubt that the applicant was guilty of the gross breach of duty in his driving to an extent sufficient to sustain the convictions. A no case submission was made to the learned trial judge, which he rejected, which in essence is the basis of the applicant's argument before this Court that the convictions were unsafe and unsatisfactory. The argument in this Court of Mr Holdenson, Q.C. was, as usual, carefully constructed and supported with fastidious detail but his argument remained essentially that there was no sufficient evidence to support the convictions and the prosecution had failed to eliminate all other reasonable hypotheses consistent with the applicant's innocence. The argument, therefore, concentrated on what had not been proved by the various witnesses. Compelling as much of that analysis was at first sight, it failed in certain respects, if I may say so, sufficiently to take account of what in fact happened, whether directly observed or not. It must be remembered that the case the Crown seeks to prove on charges of this kind, i.e. as to what constitutes "culpable driving", is proved by establishing the gross negligence of the driver which must, in almost every case, be a circumstantial case. It is the inference to be drawn from the whole of the evidence which is critical, not the inferences to be drawn from the evidence of particular witnesses or even of classes of witness. Nevertheless, some further summary of how the case was presented must be made.

[32]

There was then a great deal of evidence about the condition of the semi-trailer, especially the trailer, given by the witnesses Tysoe, Clarke, Cadden, Mathers, Welsh and Leeson. In short, that evidence showed that the condition of the semi-trailer was good and that its brakes were in good working condition. It had appropriate suspension for a vehicle of that kind which was not significantly affected by the impact of the collision. That suspension had a number of components including what were called "airbags", about which the applicant expressed some doubts in the course of his interview saying that they rocked and rolled and took some getting used to. To this there was one important exception upon which the applicant has relied both at the trial and before this Court, namely, that in addition to the airbag suspension there had been added a number of aluminium spacers which had been bolted in and which were approximately two inches square. The object, as Mr Welsh conceded, was to enable Bark King to run a larger size tyre on the trailer than was normal which would lead to some savings in expense. Snr Const. Leeson said they have the effect of raising the ground clearance of the trailer by about 50mm. so that in the end the whole trailer was some 3.5m. high. A representative of the manufacturers Hendricksens conceded it was possible that the trailer would turn over more easily because of the addition of the spacers. The experts called on behalf of the prosecution also conceded that the modification to the suspension affected the stability of the trailer but said that they could not afford to carry out the detailed tests which might show to what extent that alteration could have had dangerous consequences. It is not clear whether the applicant's comments about the airbag suspension referred to the suspension as altered by the spacers, but it would be surprising if he had even known of the effect of the spacers and thus had intended to differentiate between the unaltered and altered suspension.

[36]

The remaining groups of witnesses, and their evidence, were said to be relevant to the prosecution case that the applicant knew or ought to have known that he was so fatigued that he could not safely drive his vehicle and, thus, on that basis, should have been found guilty on both counts. The basis for these contentions appeared in two schedules prepared and put in evidence relating to the ordinary working time-table of the applicant during the month preceding this accident and on the morning of the accident. Sergeant Tysoe had prepared the two documents and there seems to be no dispute that they were substantially accurate. One schedule was taken primarily from the applicant's diary which by law he was required to keep, together with information obtained from various places visited by him. The second schedule was not dissimilar but was essentially broken up to show the length of time the applicant spent driving, loading or resting without further detail. For the day in question, 1 May 1995, the details of the applicant's movements were substantially as set out at the beginning of this judgment: see para.3. Such a pattern of work was not untypical, although that was a day immediately following the weekend when he started from home. It appeared that he had finished work for the preceding week at 7.00 p.m. on Saturday 29 April 1995 and thus was able to take some 29 hours rest before starting at mid-night on the following day. During the preceding week, however, his typical days, commencing on Tuesday, 25 April, involved criss-crossing Victoria with 14.75 hours of driving and 9.25 hours of rest; on Wednesday, 26 April with 14 hours of driving and 10 hours of rest; on Thursday, 27 April with 20.25 hours of driving and only 3.75 hours of rest; and on Friday, 28 April with 15.5 hours driving and 8.5 hours rest. On the Saturday he had driven effectively for only 5½ hours. His work pattern in earlier weeks had not been dissimilar. Most rest was intermittent between bouts of driving and on at least seven days in the month he had had less than eight hours rest, let alone sleep.

[37]

It was on the basis of this material that two expert witnesses were called, both psychologists who specialised in the effects of the absence of sleep on work capacity. They both expressed opinions as to the applicant's lack of sleep and as to the effect that that lack would have on his ability to drive the semi-trailer. The two witnesses had no medical qualifications and it was readily conceded that neither of them had ever seen the applicant, let alone examined him. For some reason which I have not been able fully to comprehend, counsel at the trial (who is not counsel for the applicant on this appeal) did not object generally to evidence of this kind but made only a specific objection to Dr Dawson's evidence upon the ground that it was founded wholly on certain estimates made as to the applicant's movements which at that time were said not to be entirely accurate. More limited concern was expressed in relation to Professor Feyer's evidence but that seems largely to have arisen out of the fact that she had not given evidence at the committal proceedings, so that there was an extensive voir dire which, so far as I would gather, did not lead to any further objection to her evidence. In the course of his charge the learned judge gave conventional directions as to opinion evidence but made clear when dealing with these experts that their opinion essentially went to predictions as to how the applicant would have been affected by fatigue shortly before or at the time of entering the intersection. The premise of both witnesses was an adamant opinion that all individuals require eight hours of sleep at the least and that there are only five percent or less who can function effectively with a lesser amount of sleep, even to the extent of only one hour or so. There was no evidence as to whether the applicant came within the 95 per cent class or the five per cent category, the assumption being that he must have come within the former. There was, of course, vigorous cross-examination as to these opinions and their relevance but no further objection was taken and their admissibility is not a ground of appeal on this application. It is, however, the subject of detailed criticism in order to show the unreliability of that evidence and to support the argument that the verdicts would be unsafe and unsatisfactory to the extent that the jury had relied on this opinion evidence.

[46]

The only ground taken in the application is that the verdicts were each unsafe or unsatisfactory. Although passing reference was made to Gipp v. The Queen (1998) 194 C.L.R. 106, it was not sought to suggest that a different basis or test for that ground might now be appropriate, as might be inferred from some observations in the separate judgments of the majority in that case. If it were, then that might unjustifiably introduce a distinction between the effect of jury verdicts in State and Commonwealth criminal trials, for in the latter s.80 of the Constitution ensures to both accused and the public that questions of guilt shall be determined by the constitutional tribunal entrusted to resolve that issue, namely the jury: Brown v. The Queen [1986] HCA 11; (1986) 160 C.L.R. 171. However, both sides in the present appeal were content to accept the test laid down by Mason, C.J., Deane, Dawson and Toohey, JJ. in M. v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487 at 494, accepted by Gaudron, McHugh and Gummow, JJ. in Jones v. The Queen (1997) 191 C.L.R. 439 at 450-452, that, for present purposes, where the evidence "displays inadequacies" or "otherwise lacks probative force", so as to lead the appeal court to conclude that "even making full allowance for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the Court is bound to ... set aside a verdict based on that evidence". I should add that I did not understand the applicant's case to rely on assertions that the evidence contained relevant discrepancies or was tainted in some other way, bases which are relevant in other circumstances, according to M. v. The Queen and Jones. This, I would venture to suggest, makes it easier in cases such as the present to place less weight on the requirement that this Court should "not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence", having "had the benefit of having seen and heard the witnesses": M. v. The Queen at 493, Jones at 451. The inadequacy of evidence where reasonable hypotheses have not been or could not be rebutted is peculiarly suited to review as a failure to take account of any unrebutted hypothesis of that kind must bespeak error on the part of the jury, if the hypothesis goes to an element of the offence.

[57]

Nevertheless, although direct observation of the course of the semi-trailer was limited and unsatisfactory, it does not follow that it was not shown to have been driven at an excessive speed of a kind which may have evidenced a gross failure to observe the proper standards of care. In the first place the jury could well be satisfied from the evidence given as to the scuff marks on the road that from a point before it entered the intersection the semi-trailer was not fully under control in that its tyres were being dragged across the surface in a manner which suggested, to some degree at least, a lack of control of the vehicle at that point and thereafter. The evidence of Sgt Hodge might well have been used for this purpose by the jury to conclude that the heavy cornering forces were never fully controlled so that this in itself showed that the semi-trailer was being driven at an excessive speed, whatever be the precise speed in kilometres per hour. To this may be added the force of the final impact (or impacts) of the vehicle. The applicant was not driving a conventional sedan motor car but instead had responsibility for an articulated vehicle, close to 55 feet in length, the combined weight of which was some 43.2 tonnes. To those who were present it might well have seemed a juggernaut out of control. The responsibility of keeping that vehicle within safe bounds lay with the applicant as an experienced professional driver. It was for the driver to keep within a speed which was appropriate for the particular road and the particular vehicle. Although the roundabout was large, it had the characteristics to which I have referred so that, if the driver were unsure as to its nature or condition or as to how it should be negotiated, it was his obligation to slow the vehicle down to such an extent that he had it under control throughout, whatever be the nature of that roundabout, so that the vehicle was not a risk to others travelling on the roadway or who were near at hand.

[63]

However, as I would understand it, there is a second, more limited but nevertheless still important aspect to this argument based upon the failure to rebut what was said to be a reasonable hypothesis consistent with innocence. The argument would, for this purpose only, accept that the evidence relating to the minor collision with the kerb of the centre island was capable of showing that the applicant was driving at an excessive speed to a gross degree. What, however, must also be established, as was made clear in the learned judge's instructions to the jury, was that the conduct of the applicant in driving his semi-trailer in the circumstances was a substantial and operative cause of the death of each of the deceased. This aspect of causation, however, raises a different issue from that of excessive speed, or so it may have seemed in the present case. Assuming for the present that the applicant had driven at an excessive speed into the intersection and had hit the roundabout in the manner described for reasons quite unconnected with the condition of the trailer and its load, and there is nothing to suggest that the latter had any bearing on the course taken by the semi-trailer up to the time it hit the island, nevertheless what happened thereafter may be seen to a significant degree to have been affected by the manner in which the trailer reacted to what in other circumstances might have been a relatively slight jolt. It may be said to be a not uncommon experience to see drivers of trucks and other heavy vehicles run over corners of roundabouts on somewhat tighter roadways without their apparently suffering any ill effects or great disturbance. In the present case the semi-trailer hit what was a relatively low island roundabout and yet shortly thereafter the trailer was at almost 45° before pulling the whole vehicle across to hit both power pole and the unsuspecting cars parked at the side of Coleraine Road. That may have resulted from the speed at which the driver entered the intersection and struck the roundabout, but it was argued that the speed was not greatly above 60 k.p.h. (at worst) so that, although excessive, it ought not to have led to the tragic consequences which in fact occurred.

[67]

In the present case the need for the jury to understand that they should not draw inferences where the required inference of guilt is not the only reasonable inference to be drawn from the facts was mentioned at least twice by the learned judge to the jury. On this view the jury may well have reached the conclusion that the insertion of spacers in the trailer's suspension may have contributed significantly to the death of the two children inasmuch as they may have concluded that without that defect the semi-trailer would not have been carried so far across the road as to collide with the light pole and the parked cars. There was, however, another factor which the jury were equally entitled to take into account and that was the driving of the applicant, if they had indeed found that he was driving at an excessive speed. They may well also have concluded that the applicant's driving was so grossly negligent as to make it the primary, or at least one of the significant, operative and substantial causes of the children's death. They may well have properly concluded that the fact that the spacers took the semi-trailer further off its course than otherwise might have been the case could not detract from a conclusion that the applicant's driving contributed significantly to the death of those children so as to make him criminally responsible for their tragic deaths. They could have reasoned, properly in my opinion, that a critical element in the events leading to the collision was the applicant's grossly negligent handling of an enormous and unwieldy vehicle which, if not controlled with proper care, was capable of wreaking havoc. If they came to such a conclusion as to the excessive speed of the applicant's driving, then there would seem no reason why they should not conclude properly that that driving was a substantial and operative cause of the children's death, notwithstanding the significance of the other matter raised as to the suspension. At all events, these were matters for the jury and they were entitled to reach their conclusion as to the cause of the deaths, if they were satisfied that he had driven the vehicle at such an excessive speed as to amount to a failure to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case. This aspect of the applicant's case is therefore not made out.

[75]

That additional factor in the present case appears to have been the evidence of the two psychologists. Apart from the unexplained minor swerve a kilometre or so back, there was really no evidence to persuade a jury that the collision was attributable to fatigue unless the psychologist's evidence was given full weight. Assuming that the jury reached its conclusion on this basis of liability (and there is nothing to show that they did not), then they must have accepted what the experts said as inherently likely and such as to exclude all other hypotheses of the kind to which I have referred. Those experts might have been seen as being very persuasive if their conclusions could have been seen by the jury as having comprehended the applicant. But there was no evidence that those conclusions did, only evidence that, if he were within a group of approximately 95 per cent in the community, they did apply to him. There was not even any evidence, apart from statistical likelihood, that he was the kind of person who came within the 95 per cent class so described by them. They were not medical practitioners; unlike some forensic psychologists they did not interview the applicant nor had either of them even met him. Their black and white prescription of what the ordinary citizen might or might not do and how he or she might be affected by the described pattern of work did not appear to depend upon those persons having any particular characteristics. Professor Feyer seemed unwilling to concede that anything less than eight hours of sleep was permissible, though Dr Dawson seemed somewhat more willing to accept that some persons could get by on only six and a half hours sleep. Since in both cases the timetable of the applicant seemed to provide less sleep then, according to their statistical models, the applicant must have been tired. Unfortunately these generalities may have been very seductive to the jury, to the extent that this Court cannot know whether they accepted them without qualification. Doubtless in cross-examination it was conceded that what they said was only an "indication" how a person within the 95 per cent of the population might be affected by fatigue, but the jury were not instructed that this was the limit of the experts' opinion.

[81]

The argument of the applicant tended to separate the aspects of fatigue and excessive speed in a way which may not be justified having regard to the totality of the evidence. I would accept that they are both aspects of the applicant's driving which, if the case had been presented differently, together might have led to the conclusion that his driving should be characterised overall as a failure to a gross degree to observe the standard of care which a reasonable driver would have observed in all the circumstances. However, the conclusions I have reached differ as to the two bases of the Crown case so it is necessary to reach a conclusion as to what should occur upon the assumption that only one basis of liability has been properly made out. It would seem that, if one aspect of the Crown case was infected by the possibility that a reasonable hypothesis consistent with innocence had not been rebutted or that otherwise verdicts on that basis were unsafe or unsatisfactory, then it would not ordinarily be possible to say that the jury had not reached its conclusion on the head of liability in question. In the present case, therefore, one cannot be sure that the jury did not find that only the case based on fatigue was made out and, if they did, then I have already expressed the opinion that that conclusion could not be supported. It was clearly a significant part of the Crown case, relied upon separately from its case based on excessive speed, with the consequence that in themselves the verdicts cannot stand. Despite the fact that I have reached the conclusion that the applicant's driving at an excessive speed may have been held properly by the jury to be an operative and substantial cause of the deaths, that cannot derogate from the conclusion that the verdicts were unsafe and unsatisfactory to the necessary degree. It is not possible to know on what basis the jury acted. If it is possible that they upheld a basis for the Crown case which cannot be supported, then the verdicts cannot stand. To many that may seem a regrettable conclusion, but the applicant is entitled to a trial according to law and the prosecution case at all stages had weaknesses which I have identified and which were never effectively corrected.

[98]

If one were to put to one side for the moment the evidence of Feyer and Dawson, there was, in my opinion, sufficient evidence on which the jury could have concluded beyond reasonable doubt that the applicant was fatigued at the relevant time and that he ought to have been aware of his condition. It is true that there was no direct evidence as to his state of tiredness. This is unsurprising given that he was not subjected to a medical or oral examination after the accident for the purpose of establishing his level of fatigue at that point or at all. That he gave no outward indication of tiredness at the time he was interviewed is, in my view, not to the point. The real question is whether he was overcome by tiredness when driving his semi-trailer at the relevant time. It is possible for the applicant to have been fatigued at the time he drove into the intersection yet appear to be alert after being shaken by the tragic accident and moving about in the open air thereafter. In my view, there was considerable circumstantial evidence from which the jury could have concluded beyond reasonable doubt that the applicant was fatigued at the relevant time. For example, the jury had before it a detailed driving schedule of the applicant for the month prior to the accident which showed that he drove for very long hours and had only limited opportunities for rest. I refer in particular to the summary of the relevant entries in that schedule as set out in the judgment of Tadgell, J.A. Similarly, his workload from midnight of 1 May 1995 to 12.45 p.m. of that day indicates his onerous driving schedule and relatively short rest periods. In addition, there was the evidence of Trotter and of the surrounding circumstances such as the sound condition of the road, the applicant's familiarity with the roundabout and the clear weather. There was also the evidence as to the speed and the manner in which he entered the roundabout as well as the evidence of the scuff marks left by the tyres of the semi-trailer on the roadway, all of which have been summarised by Ormiston, J.A. Furthermore, as Tadgell, J.A. has pointed out in his judgment, the trial judge properly instructed the jury in relation to the use of circumstantial evidence and enumerated for them the material from which they could draw the conclusion that the applicant was fatigued at the relevant time.

[105]

In my opinion, it must have been apparent to the jury from the whole of the evidence of the experts and the judge's charge that, as was the fact, neither Feyer nor Dawson was in a position to give evidence about the applicant's state of fatigue at the time of the accident. First, the substance of their evidence-in-chief was that a person who performed the work summarised in the schedule compiled by Sergeant Tysoe would have been chronically or at least significantly fatigued at or about the time of the accident. Save for one passage in the evidence of Feyer, in their evidence-in-chief, the experts did not speak specifically of the applicant although it must have been apparent that the person or persons to whom they referred would have included the applicant. But in their cross-examination, it was quite clear that their opinion was that only approximately 95 per cent of persons who performed the onerous work set out in the schedule were likely to have been fatigued at the relevant time. No evidence, however, was led by the prosecution that the applicant fell within that group and Feyer and Dawson readily conceded that they had not examined him and did not know if he was part of the 95 per cent. On the contrary, they admitted that the applicant may have been part of a small percentage of the population that could cope with significantly less sleep than was required by the remainder of the population. Next, as his Honour reminded the jury, Feyer agreed in cross-examination that all she could go on were the "generalities of the situation" and that she could not quantify the extent of the applicant's fatigue or how he may have been affected by it. As to Dawson, as his Honour reminded the jury, he accepted in cross-examination that there was a variance amongst individuals as to how much sleep they required in order to function normally and, as I have mentioned earlier, he agreed that he knew nothing of the applicant's physical and mental make-up. Furthermore, both experts conceded in cross-examination that they could not rule out the possibility that the applicant was not fatigued at the relevant time.

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