R v Taafe [1998] VSCA 4

8. A plea was heard on 12 December, during which character evidence from six witnesses was called on behalf of the applicant, and various references were tendered. On 17 December, the learned judge sentenced the applicant on counts 1 and 2 to five years' imprisonment in each case, and on each of counts 3, 4 and 5 to 12 months' imprisonment. His Honour directed that one year of the sentence imposed on count 2 and three months of each of the sentences imposed on counts 3 and 4 be served cumulatively upon the sentence imposed on count 1 and upon each other. A total effective sentence of six years and six months' imprisonment was thus imposed. His Honour fixed a non-parole period of four years' imprisonment.

11. The applicant now seeks leave to appeal against conviction on the following ground -

(1) That the verdicts were unsafe and unsatisfactory and against the weight of the evidence.

This application came on for hearing in this Court on 9 June 1998. On that day Mr. Tehan, Q.C., who appeared for the applicant, made application before the Registrar of Appeals to add the following additional grounds of appeal against conviction, namely that -

(2) the learned trial judge erred in failing to direct the jury that they should be satisfied beyond reasonable doubt of the combination of factors relied upon by the Crown to prove gross negligence, namely driving at an excessive speed, driving under the influence of liquor and inattention on the part of the applicant;

(3) the learned trial judge erred in his directions to the jury upon the way in which they should view the evidence of the applicant.

The Registrar referred the application to amend to this Court and I shall deal later in these reasons with the question whether the application to add these grounds should be granted.

22. The applicant also sought leave to appeal against sentence on the ground (1) that the sentence is manifestly excessive in all the circumstances. The applicant was granted leave to amend in relation to sentence by adding the following ground -

(2) the learned judge erred in that having found the applicant's driving to be 'in the lower range of grossly negligent driving', his Honour passed sentences on the counts of culpable driving which failed properly to reflect this finding.

28. The principal argument made by Mr. Tehan in relation to conviction was that the two convictions for culpable driving were unsafe and unsatisfactory. Any consideration of this ground must commence with a careful examination of the facts before the jury and the prosecution case.

31. At the conclusion of the evidence, it was not disputed that on 12 January 1995, the applicant's birthday, he and Anthony Weber left home at approximately 11.30 a.m. to go to the Club Hotel in Warragul to play pool and have a counter-lunch to celebrate the day. They left in the applicant's car and on the way to the hotel they spoke to a friend, Geoffrey Buck, inviting him to join them. The applicant and Weber went on to the Club Hotel, and parked in the car park. They went into the public bar and began playing pool with another friend, Brett Johnson, who was there when they arrived. They played pool until 2 p.m., when the applicant ate his lunch. By this time he had drunk five pots (10-ounce glasses) of full strength beer. While eating a lunch of schnitzel and chips, he had one bourbon and coke. The applicant, Weber and Johnson left the hotel at 2.30 p.m., and, as they did so, saw Buck who was arriving. They returned to the hotel and the four joined in a "shout", in which the applicant missed one round. He therefore drank a further three pots of full-strength beer between 2.30 p.m. and 4.15 p.m., when all four men left the hotel. They got into the applicant's car and he drove to his parents' home to tell his mother he had agreed to take Johnson to Bunyip for work and that he would return at 7 p.m. for his birthday dinner.

34. At his parents' house, the applicant and Weber went inside briefly and the applicant spoke to his mother. They then returned to the car and he drove down the Princes Freeway into Drouin, where he drove into Gleeson's Family Hotel drive-through bottle shop. At 4.31 p.m. he made an Eftpos transaction, withdrawing $40, and bought a slab of VB cans of beer for his party. He then drove off and proceeded down the Princes Freeway, stopping at a Mobil service station, where he purchased petrol. He then drove off heading towards Bunyip and turned left down Hope Street.

37. The applicant was to drop Johnson in Hope Street, but did not know precisely where to do so. He drove around the first right-hand bend in the street and as he did so, his own evidence was that he quickly, "just momentarily", turned his head towards Johnson (who was in the back seat) and asked him "Where? How far up?". Johnson did not answer. When the applicant did this, the left-hand front wheel of his car hit the gravel at the roadside; he said it only just touched the gravel and was in it for "not even a second". He corrected the steering to the right and then noticed a car nearly 60 metres ahead coming towards him. The respective positions of the cars remained a matter of dispute, to which I shall return shortly. The two cars collided in the middle of the road. Admission was formally made at trial pursuant to s.149A of the Evidence Act 1958 that as a consequence of the collision, Mr. and Mrs. Howard were killed and that also as a consequence of the collision Emma Porter, Magnolia Howard and Geoffrey Buck were all seriously injured.

40. None of the foregoing was disputed, and I now turn to the evidence, insofar as it bears on contentious matter.

43. The first witness, Lisa Anne Deppeler, gave evidence of serving the applicant, Weber and Johnson in the public bar at the Club Hotel with pots of full-strength beer in four or five shouts during the morning, and that the applicant had one bourbon and coke with his lunch. She said that she had had an opportunity to observe the applicant's demeanour. Nothing suggested to her that he was incapable of playing pool and she said he was polite and did not appear to be impaired by alcohol.

46. John Joseph Mark Madden, who was then working as a part-time barman at Gleeson's Family Hotel in Drouin said that on 12 January 1995 a person he later identified as the applicant drove up into the bottle shop driveway in a white Ford with three other young men in mid-afternoon. Madden said that he did not notice any signs of alcohol in the applicant's demeanour, which was normal and he was polite. He said he had noticed nothing untoward about the way he was driving his car.

49. Emma Porter (who was aged 16 at the date of the accident) gave evidence of travelling in her grandparents' Nissan Skyline, saying that they left Bunyip at approximately 4.50 p.m., heading towards Yarragon with her grandfather driving. She was seated on the passenger side of the rear seat. She said they approached a right-hand bend in the road and she saw a car "heading straight in our direction coming from the opposite direction, on our side of the road." Asked where it was coming in relation to the front of the Nissan Skyline, Ms Porter answered "Over to the front seat passenger's side, the centre of the car, veering over towards the front seat passenger side." She said the car travelling towards them was travelling fast. She said the car in which she was travelling was travelling "slow" and that the other vehicle was on its incorrect side of the road when she first saw it.

52. Magnolia Howard, who was aged 11 when the accident happened, gave evidence that she was seated next to her cousin Emma Porter in the middle of the back seat. She said that they were travelling at 60 to 70 kilometres per hour and that as they were turning around a blind corner, she saw a white car with a bull-bar which hit them. Ms Howard said "We were on our side of the road", the left side. Magnolia's brother Tjalkalyiri, who was sitting next to her on the driver's side in the back seat, also gave evidence, but he said that he had fallen asleep and was woken by brakes screaming, after which he lost consciousness.

55. Kylie Louise Murphet, who was aged 14 at the time of the accident, gave evidence that she was swimming with a friend in a dam at her place at 106 Hope Street, Bunyip. Ms Murphet said she saw a white Ford Falcon heading along the road towards Bunyip, and that the noise it was making caused her to look up and observe it. She said the motor was revving "like it was going really fast". She said that -

"We watched the car go past and as it passed us it went over into the left-hand side into the dirt, in the gravel, and then it started veering back on like it didn't slow down, and then it veered back towards the middle of the road and like kept drifting over, and that was the last I saw of it."

59. Ms Murphet said that after the car drifted across it went out of her sight and a couple of seconds later she heard skidding and a huge bang.

62. The prosecution then called as witnesses both Brett Johnson and Geoffrey Buck. Johnson gave evidence of joining the applicant and Weber in the Club Hotel, and playing pool and drinking with them. He said they left at 4.15, and proceeded to Bunyip with the applicant driving. Johnson was in the rear seat on the passenger side. He said the applicant was sober. Johnson said they travelled down the Princes Highway in the direction of Melbourne and turned left into Hope Street going towards Bunyip. He said that just before the cemetery there was a right-hand bend that turns into a left bend. He said he saw a car on their side of the road as they came around the left-hand corner, braced himself and then the impact occurred. Johnson said the speed limit in that area was 100 kms per hour and that the applicant was travelling below the speed limit when he entered the first bend, the right-hand turn. Johnson said the other car was at least three-quarters on their (Johnson's) side of the road and they hit it head on. He said the left-hand tyre of the applicant's car got caught in the gravel on the left-hand side of the road and the applicant tried to get out of the gravel to avoid the car and that was when they hit. Johnson said the applicant's car was on the correct side of the road when the collision occurred. In cross-examination, Johnson agreed that the applicant turned his head around momentarily to speak to him or to Buck and that his car went into the dirt on the bend itself, a short distance before the collision occurred. Johnson said he did not see Weber grab the steering wheel.

65. Geoffrey Buck then gave evidence of seeing the applicant playing pool with Weber and Johnson in the Club Hotel when he arrived there at about 1 p.m. He said he stayed for about two hours and eventually left with them. Buck said they left the hotel to drive to Bunyip, stopping at Gleeson's Hotel in Drouin and picking up a 24 pack of beer. He said they travelled along the highway and turned left into Hope Street at the Bunyip service station. They proceeded to drive up Hope Street and came around a sharp bend that was blind, travelling at approximately 80 kph. He said that as they came around the bend, there was a car on the wrong side of the road which had overtaken across two white lines a little red car that was pulling into a driveway. This overtaking car was on the wrong side of the road so that the applicant swerved to avoid it. The other car swerved at the same time to avoid the applicant's car and the applicant swerved back to avoid them and the collision resulted. Buck said the collision occurred on the applicant's correct side of the road. He said that just prior to coming to the bends the applicant, while looking in his rear-vision mirror, asked Johnson where he wanted to be dropped off. He said he had slowed the car down to 30 kph to speak, and then sped back up to about 80 kph. The applicant swerved into the right lane so that the other car would not hit them. He said the applicant had at first tried to go to the left but there was an embankment there. He said the car did not go into the gravel. Buck said he believed the little red car was pulling into a driveway and was being overtaken by the other car. When the applicant got into the right lane he realized that the other car had swerved back so the applicant then swerved back onto the correct side of the road and the other car also swerved onto its incorrect side.

68. Evidence was given by a number of police witnesses as to their observations of the scene of the collision and as to the taking of a blood sample from the applicant at Dandenong Hospital at 7.40 p.m. I do not need to describe the evidence given by most of these witnesses, since Mr. Tehan did not submit that there was any technical defect in the procedure by which a blood sample was taken or analysed. The critical evidence as to the position of the cars and tracks leading to the point of collision was given by Acting-Sergeant Peter Bellion. Deborah Jane Stephen gave evidence that she analyzed the blood sample taken from the applicant, which produced a reading of 0.072 grams of alcohol per 100 millilitres of blood.

71. Expert evidence was given by Dr. Edward Ogden, a medical practitioner and an expert in clinical forensic medicine. Dr. Ogden said that if a person ingests an amount of alcohol, absorption will occur over a period of time and a peak level will be reached, after about three-quarters of an hour. He said that that period may be as short as half-an-hour, it may be as long as two hours. Dr. Ogden said that if the applicant was not drinking in the two hours prior to the collision, then it would be reasonable to assume that at the time of collision his blood alcohol percentage was falling at between .01 and .02% each hour. On that assumption Dr. Ogden said he would calculate that at the time of the collision the applicant's blood alcohol concentration was in the range of .095 to .120. Dr. Ogden said that if one assumed that the peak blood alcohol concentration occurred half an hour after the collision, on the assumption that drinking had occurred right up to the moment of collision, the applicant may then have reached a peak half-an-hour after the collision and had a blood alcohol concentration falling for nearly two hours until it was measured at 7.40 p.m. On that basis, Dr. Ogden said that peak concentration would have been .11 per cent and at the time of the collision the blood alcohol percentage may have been as high as .10. Dr. Ogden said that if one took the most generous view from the defendant's perspective, and assumed that he was drinking until the time of collision but did not reach his peak concentration until two hours later (i.e. 7.15 p.m.), he would calculate that at the time of collision the applicant's blood alcohol concentration may have been as low as .06%. Dr. Ogden also gave evidence of the effect of alcohol on driving skills. His evidence was that alcohol is a sedative, slowing the brain down, and that alcohol interferes with the ability to control a motor vehicle in that at .05% drivers are less able to maintain lane position, less able to maintain the spacing between vehicles, are unaware of any impairment, and are more likely to ignore instructions. Dr. Ogden said that by a level of .06%, safe stopping distance has more than doubled. He said that alcohol affects the ability to see to the sides, affects peripheral vision and causes tunnel vision. Dr. Ogden said "most sensitive of all is [that] alcohol has an affect on divided attention tasks, that is, when somebody is trying to do two things at once."

74. Detective Senior Constable Merrilyn Beer, who was attached to the Accident Investigation Section, Glen Waverley, attended the accident scene at approximately 6.35 p.m. and prepared a scale plan of the collision area showing measurements taken, location of vehicles, and width of road. This scale plan was tendered and Detective Beer gave evidence of what the plan depicted. She took a number of photographs which were also admitted into evidence.

77. Acting-Sergeant Peter Bellion gave evidence as an expert in accident reconstruction and investigation. He arrived at the accident scene at 8.42 p.m. and described his observations, also in relation to the scale plan prepared by Detective Beer. Sergeant Bellion said he observed a series of tyre scuff-marks which originated on the south-bound traffic lane and came across to the north-bound traffic lane. He said they were "marks associated with a vehicle being out of control leading up to impact, as a result of travelling at too fast a speed to get around that particular corner", and added that "these were a curved mark associated with a vehicle being in an out-of-control situation leading up to impact". I interpolate that the car travelling south-bound towards the point of impact was the applicant's Ford. Sergeant Bellion estimated the impact speed of the Ford at 103 kph and that of the Nissan at 91 kph. The length of the scuff-marks on the roadway was approximately 25 metres, and Sergeant Bellion estimated, using two different methods, that the Ford's speed at the start of the scuff-marks was 109 and 111 kph. He said that the Ford at the time of the collision was travelling south, but on the north-bound lane, and the Nissan was travelling towards the north on the north-bound lane. There were no pre-impact marks on the road at the rear of the Nissan.

80. At trial, counsel for the defence called a number of witnesses to give evidence in relation to the procedure for analysis of a blood sample. I shall not deal with this evidence since, as I have said, Mr. Tehan did not contest the reading of .072% from the blood sample taken from the applicant at 7.40 p.m. The applicant himself gave evidence in which he described his actions at the Club Hotel leading up to his driving into the drive-through bottle shop. He said that as he drove off heading towards Bunyip and turned left down Hope Street, he felt "quite fine", convinced that he was not affected by alcohol. He said that his speech, his walking and his driving were all "fine". The applicant said that when he turned his head to ask Johnson where to drop him off, his left-hand front wheel hit the gravel. He corrected it to the right, and when he had done so noticed a car nearly 60 metres ahead coming through a sharp corner, the other car being a quarter of the way on its wrong side of the road. The applicant said Weber panicked when he saw this car cutting the corner and grasped the steering wheel to try to "veer me back into the left". This was when the applicant was trying to correct the car's passage out of the gravel. The applicant said this gave him a bit of a fright and he applied the brakes. The other car started to go back on its side of the road and his car slid straight into it and they collided in the middle of the road. The applicant said the other car was "probably just back on its side of the road" at the time of the accident. The applicant had no recollection of events after the accident, having suffered a number of serious injuries in the accident, including dislocation of the left hip, a compound fracture of the left frontal sinus and a fracture of the lower third of his sternum. He lost consciousness on impact and did not regain it for a considerable time.

83. In cross-examination, the applicant agreed that he had drunk eight pots of full-strength beer and one glass of bourbon and coke between 11.45 a.m. and 4.15 p.m. and said he was drinking right up to the time he left the hotel at 4.15 p.m. He said he drank half a can of beer at the service station afterwards. He said he was travelling at about 100 kph as he went through the bends before the accident. In cross-examination he denied that he lost control of his car because he over-corrected in an attempt to get out of the gravel.

86. After the jury was empanelled, a question arose as to whether the jury should have a view of the accident scene. The learned judge ruled that in the circumstances of the case it would be appropriate to have a view and the jury accordingly were given a detailed view, both by walking along the road a considerable distance on either side of the point of collision, and then by travelling along the road in the vicinity of the collision in each direction by bus.

89. The Crown alleged that the applicant was guilty of culpable driving in that the collision occurred as a consequence of a combination of the speed at which the applicant was travelling, his impairment by alcohol, and inattention. The defence contended that if there was negligence it was not gross negligence, and that there was a question as to whether the accident was caused by the applicant's negligence or some other conduct, namely the front seat passenger (Weber) having grasped the steering wheel.

92. In support of his arguments on ground 1, Mr. Tehan took the Court through a meticulous and detailed examination of the evidence. His submission was that no one of the three matters relied on by the prosecution could have satisfied the jury to the criminal standard of gross negligence, that the combined force of the three should not have led to a finding of gross negligence, and that upon disputed matters there were competing inferences as to what conclusions should be drawn. In so far as liquor was concerned, Mr. Tehan submitted that all the evidence of the applicant's conduct pointed to his not being adversely affected by liquor, and he relied on what the applicant himself, Ms Deppeler, Mr. Madden and Mr. Johnson all said as to his behaviour and actions. His submission was that the independent evidence uniformly suggested that the applicant was not adversely affected by liquor, there was no suggestion of inattention on his part while driving into the bottle shop and he argued that this amounted to uncontradicted first-hand evidence of a man who was not adversely affected by liquor. Insofar as speed was a factor, he submitted that the impact speed of 103 kph was not a safe basis upon which it could be found that the applicant's car was at the point of impact travelling at an excessive speed. In relation to the movement of the two vehicles, Mr. Tehan relied on the fact that Sergeant Bellion had been unable to say what the pre-collision path of the Nissan had been. He relied on the evidence of the applicant and his passengers that the Nissan was not on the correct side of the road coming around the bend, and submitted that Bellion's evidence was consistent with the view that part of the Nissan may have been on the incorrect side of the carriageway or at least straddling the white lines in the middle of the road. Mr. Tehan submitted that the evidence relating to any of the individual matters relied on by the prosecution could not have justified a conviction for culpable driving. The Crown case, Mr. Tehan said, had to be that it was a combination of liquor, speed and inattention. He submitted that the jury acting reasonably should not have arrived at a guilty verdict on such a basis.

95. The offence created by s.318 of the Crimes Act relevantly required the prosecution to establish that the applicant drove negligently, failing "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": s.318(2)(b). The proper directions to be given to a jury for such an offence were considered in cases such as R. v. Horvath [1972] VicRp 60; [1972] V.R. 533 and R. v. Stephenson [1976] VicRp 34; [1976] V.R. 376, and subject to the submission in support of proposed ground 2, with which I shall deal later, Mr. Tehan did not submit that the learned judge's charge erred in this regard.

98. In my view the evidence entitled the jury to find that the applicant had consumed eight 10-ounce glasses of full strength beer and one bourbon and coke between 11.30 a.m. and 4.15 p.m., and possibly half a VB can of beer at the service station where he obtained petrol on the day of the accident. Depending upon whether the jury believed the applicant's assertion that he drank beer at the service station, the jury would have been entitled to find on the evidence that the applicant's blood alcohol percentage at the time of the collision was .07%, or, on any view, at least .06%. At this blood alcohol level, they would, on Dr. Ogden's evidence, have been entitled to conclude that his driving skill was impaired, particularly in his ability to brake suddenly, in his reaction time, and in handling divided attention tasks. They would have been entitled to find that he was negotiating a blind left-hand bend at a speed conservatively estimated at 109 kph, too fast a speed for that corner, at a time when he first went into the gravel and lost control. They were entitled, on the applicant's own evidence, to conclude that he had turned briefly to talk to Johnson in the rear seat to ask him where he should be dropped off, at the same time steering briefly into the gravel where he lost control. Having regard to the evidence of Sergeant Bellion, Ms Murphet, Ms Porter and Ms Howard, they would have been entitled to reject the evidence of the applicant and his passengers that Mr. Howard's Nissan was on the wrong side of the road. They would, I think, plainly have been entitled to conclude that it was the applicant's car which was travelling on the wrong side of the road before and at the time of the accident. In assessing this evidence the jury would have been assisted by the view they had taken of the scene, and by having driven along the road in the directions taken by both vehicles. On all this evidence, I am persuaded that the jury was entitled to conclude that the applicant failed to observe the prescribed standard of care to a gross degree, and accordingly that it was open to them on the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty of culpable driving causing the death of Mr. and Mrs. Howard.

101. Until very recently this would have been sufficient to dispose of ground 1 (see M v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487, per Mason, C.J., Deane, Dawson and Toohey, JJ. at 493, Jones v. The Queen (1997) 72 A.L.J.R. 78). But in Gipp v. The Queen [1998] H.C.A. 21, in reasons published on 16 June (this appeal was argued on 9 and 10 June), a majority of the High Court dealt with an appeal on the unsafe and unsatisfactory ground in such a way as to suggest that a broader examination must now be conducted by an appellate court. McHugh and Hayne, JJ., in dissent, affirmed (at par. 49) the test accepted in M and reaffirmed in Jones. In Gipp, the appellant had been convicted on two charges of indecent assault and three charges of rape of his step-daughter. The principal complaint made in the High Court of the trial was that the prosecutor had been permitted to adduce evidence of a general history of alleged sexual molestation extending beyond the specific incidents, the subject of the counts with which the appellant was charged. The learned judge made reference in his charge to this general evidence of ongoing conduct by the appellant, which his Honour said was evidence of general behaviour led to show that nature of the relationship between the complainant and the appellant. The trial judge gave the jury no instruction as to the limited use they might make of such evidence and, further, directed that there was no need for the jury to be satisfied beyond reasonable doubt of those, as his Honour called them, background facts. No objection or exception was taken at the trial to these remarks and no relevant request for a re-direction was made. The notice of appeal to the Court of Appeal of Queensland did not contain any specific ground based upon the admission of the foregoing evidence or the misdirection or non-direction argued in the High Court, nor were these points mentioned in the Court of Appeal.

104. These issues were therefore raised for the first time in the High Court. Gaudron, J. (at 18) said that it was necessary for an appellate court to have regard to the whole of the evidence and the trial judge's summing up, to determine whether there was a significant possibility that an innocent person had been convicted. Kirby, J. said (at 144) that, on the material then before the High Court, it was clear that a miscarriage of justice had occurred and this was sufficient to attract the intervention of the High Court. Callinan, J. held that the verdict was unsafe and unsatisfactory, as that expression was used in M, that the appellant had lost a chance which was fairly open to him of being acquitted, and that the Court of Appeal had been in error in failing to make an independent assessment of the evidence in the context of the trial as a whole (at 184-185). In the light of these observations I should then deal with the other two grounds raised by Mr. Tehan, at least to the extent necessary to determine whether it can be said that the applicant has suffered a miscarriage of justice.

107. Mr. Tehan's argument under the second ground was that this was a case where the Crown was forced to allege that gross negligence came from a combination of three matters, the combined effect of speed, liquor, and inattention, as leading to the finding of gross negligence. Mr. Tehan submitted that the jury should have been told that they had to be satisfied beyond reasonable doubt that the combination of factors relied upon by the Crown had been proved. The learned judge had observed in his reasons for sentence that proof of any individual factor would not by itself have constituted gross negligence, and accordingly, so the submission ran, judicial direction on this issue was required, rather than simply pointing out that the Crown had put its case in a certain way. In effect Mr. Tehan's submission was that in circumstances where the jury had to be satisfied of each of three individual matters to enable a conclusion to be made that the applicant had been guilty of gross negligence, the jury should have been told that they had to be satisfied to the criminal standard of each of the three matters leading to the finding of gross negligence as well as the fact that the combination indicated gross negligence. For this purpose he relied on Shepherd v. The Queen [1990] HCA 56; (1990) 170 C.L.R. 573, per Dawson, J. at 582.

110. The response made by Mr. McArdle, who appeared in this Court for the Crown, was that in the way the case had been run during the trial by counsel, alcohol was the substantial issue before the court. There was no real dispute that the speed of the applicant's car before the impact was between 109 and 111 kph, since Sergeant Bellion's evidence had not really been challenged. The applicant himself said he was distracted by turning to Johnson who was in the rear seat to ask his directions. The evidence of the scuff-marks on the road which formed the principal basis for Bellion's evidence as to the whereabouts of the applicant's car before the accident, was also not subjected to serious challenge. Accordingly, the real matter on which the jury required direction was the question of alcohol and its effect and the blood alcohol reading, as a particular of negligence.

113. During the course of his charge, the learned judge identified to the jury the respects in which the Crown alleged that the applicant's failure to observe the relevant standard of care was a failure to a gross degree, saying -

"To sustain a charge of culpable driving the Crown must prove not merely negligence but gross negligence. It is for you the jury to determine whether the facts of the accused's driving in the particular case are such that beyond reasonable doubt they deserve to be described as a gross departure by the accused from the standard of care which a reasonable person would have observed in all the circumstances."

After identifying the matters the Crown was required to prove, the learned judge continued -

"If the Crown have proved beyond reasonable doubt all of those matters then your proper verdict will be guilty. If the Crown have failed to prove any one of those matters beyond reasonable doubt then your proper verdict will be not guilty. Here the Crown really relies upon a combination of three separate matters, as I understand it, in support of its contention that the driving amounted to culpable driving."

His Honour then identified the three matters upon which the Crown relied as being the speed at which the car was travelling, the effect of alcohol upon the applicant, and inattention on his part. After discussing briefly the matters relevant to these three separate questions his Honour then continued -

"In relation to your consideration of all that evidence I remind you that the Crown must prove its case beyond reasonable doubt. Although the question of the effect of alcohol is not itself an element of the offence, but is only one aspect of the general issue of negligence you should approach it upon the basis that you should be satisfied beyond reasonable doubt as to the part, if any, played by the effects of alcohol on [the applicant] at the time of the collision."

The learned judge repeated several times during his charge that the Crown was required to establish all the elements upon which it relied beyond reasonable doubt. No exception was taken by defence counsel at the end of his Honour's charge. In my view, Mr. McArdle's argument that alcohol was the substantial issue between the parties is correct, and it was to the subject matter of alcohol that the learned judge made specific reference in saying that the jury should be satisfied as to "the part, if any, played by the effects of alcohol" on the applicant at the time of the collision. I do not think it can be said that the direction may (as Mr. Tehan contended) have directed the jury's attention away from the real point, which was that they had to be satisfied that the combination of factors indicated gross negligence.

122. As to the third ground, two passages in the learned judge's charge to the jury were relied upon, as showing error in the way the jury should view the evidence of the applicant. The learned judge said, "There is nothing more that a guilty person could do in order to avoid conviction than to give sworn evidence." Shortly afterwards his Honour said "On the other hand, there is, when you stop and think about it, nothing more that an innocent person can do apart from give evidence upon oath; that is as much as he can do." A little later the learned judge said -

"You should assess his evidence in the same way as you assess the evidence of all of the other witnesses, but perhaps, bearing in mind the fact that he might be under more strain, because he is the accused person, he is the one who is on trial, in making an assessment of his evidence."

126. The applicant's submission was that these directions unequivocally suggested that an accused person has a greater interest in the proceedings than any other witness. The first statement quoted was said to be highly prejudicial in that it conveyed that the accused may be motivated to give evidence on oath because he is guilty, and that he was merely a guilty man brazening out the trial. In effect the submission was that on these matters the only proper direction should have been that the accused had a choice, that he did not have to give evidence and could have remained mute; he had, however, chosen to place himself under cross-examination like any other witness. The submission continued that judges should no longer engage in the process, which it was suggested was most adverse to the accused, of saying that a guilty man could get into the witness box and "lie his head off". It was submitted that a consequence of this mode of direction, which was said to have been commonly used for many years, was that it concentrated the jury's mind on the interest of the accused man in the trial, and tended to reverse the onus of proof. The direction was said to fix the jury's attention on the accused in the witness box, whether he or she was innocent or guilty, and on the accused's interest in acquittal.

129. The Crown's reply to these arguments was that the learned judge's direction in this respect was a response to the observation invariably made by defence counsel that the accused does not have to give evidence. Witnesses, Mr. McArdle said, usually do not have the option whether or not to give evidence. Once a comment of this kind was made by defence counsel to the jury, it became relevant for the judge to make observations such as those complained of here, simply to balance the defence submission.

132. In Hyatt v. The Queen, unreported, Court of Appeal, 23 April 1998, Winneke, P. said, at 19-20, that -

"It is, in my view, unacceptable for the judge to tell the jury that where an accused person has given evidence on oath, he is to be regarded by them as falling into one of two discrete categories; either he is an innocent person seeking to prove his innocence or he is a guilty person who is lying to get himself out of the charges, and it is a matter for the jury to chose into which category he falls. The tendency, of course, of such a direction is to induce the jury to believe that an onus of proving innocence lies upon the accused. The truth is, of course, that an accused man who chooses to give evidence falls into no special category of witness, but that his evidence falls to be determined by the jury in the same way as all other sworn evidence in the trial. As with other witnesses, the trial judge is entitled, if the circumstances so warrant it, to draw the jury's attention to considerations which may affect the weight which is to be given to the evidence, in the same way as the judge might comment in similar fashion on considerations which might affect the weight of any other witness's evidence. (Cf. R. v. Robinson (No.2) [1991] HCA 38; (1991) 180 C.L.R. 531) But it is fundamentally erroneous, in my opinion, to invite the jury to 'slot' the accused into one of the two categories to which I have referred, because to do so is tantamount to suggesting to the jury that the accused bears the burden of proving his innocence."

136. In giving directions of the kind here under challenge, it is important that the trial judge leave the jury under no misapprehension that the onus of proving guilt is always upon the prosecution and that the jury is not misled into believing that an onus of proving innocence lies upon the accused. Such directions must never suggest that the accused has a greater interest in the proceedings than any other witness. Mr. Tehan's submission was that the judge's directions previously quoted offended the principle stated in Robinson, that a trial judge should not refer to the interest of the accused in the outcome of the case. But in the present case the learned judge gave lengthy directions to the jury, immediately preceding the passages of which complaint was made, in which he told the jury that the accused did not have to give evidence on oath and that, had he done so, neither the prosecutor nor the judge could have made any comment on that fact. Taken in context, the impugned directions did not in my view suggest that the accused had a greater interest in the proceedings than any other witness, nor did they tend to reverse the onus of proof. Again, no exception was taken by counsel for the accused at the end of the charge. In my view no miscarriage of justice arose from the making of these comments.

139. The principal ground of the application in relation to conviction therefore fails. The question then becomes whether the applicant should now be granted leave to amend the application to include grounds 2 and 3.

142. In my view the application to amend the grounds of appeal by adding grounds 2 and 3 should be rejected. In Haseloff v. The Queen, unreported, Court of Appeal, 18 December 1997, Batt, J.A., with whom Phillips, C.J. and Hampel, A.J.A agreed, said that the Court should generally discountenance late applications for leave to amend by the addition of new substantive grounds of appeal on behalf of applicants who have had legal representation and have had ample opportunity to consider in advance the adequacy of the grounds in the notice of application. As Batt, J.A. said, at 27, late application for amendment causes real difficulties for the respondent as well as imposing unnecessary burdens on members of the Court and Court staff, and the addition of late grounds will frequently make it necessary for a further report to be obtained from the trial judge. His Honour also observed that the Court will usually nevertheless grant leave to amend, if necessary with an adjournment, where it appears that an injustice may have occurred at trial in a way identified in a proposed ground, or where it otherwise appears that a proposed ground is one of real merit.

145. In the present case the applicant is not legally aided, and it is not suggested that the late application to amend was a consequence of any difficulty arising from an absence of legal aid, or an inability to give earlier instructions to the applicant's legal advisers. Having considered in some detail the two proposed grounds, I do not think it can be said that either of them identifies an injustice that may have occurred at trial or is of any real merit. I do not think that either ground suggests that the appellant suffered a miscarriage of justice, or lost a chance which was fairly open to him of being acquitted. I would therefore reject the application to add proposed grounds 2 or 3. The application for leave to appeal against conviction therefore fails.

148. I turn now to the application for leave to appeal against sentence. In support of the two grounds of this application, Mr. Tehan made three arguments -

(a) the learned judge did not take into account the delay that had had occurred between offending and sentence;

(b) the sentence of 5 years imposed on counts 1 and 2 failed to reflect the learned judge's conclusion that the applicant's driving was "in the lower range of grossly negligent driving"; and

(c) the sentence of 5 years on counts 1 and 2 was in the circumstances manifestly excessive.

154. The delay of almost three years before trial was largely unexplained. When the issue was raised in this Court, we were informed by Mr. McArdle that Weber had moved to South Australia and the Crown had difficulties in tracing him, not succeeding in obtaining a statement from him until December 1995. After a committal in September 1996, the matter was listed for trial on 10 June 1997, nearly 2½ years after the offences were committed. Application was then made in May 1997 by the applicant's legal advisers for an adjournment, on the ground that the applicant's counsel (who had appeared for him at the committal) was being married at the time then fixed for the hearing, which resulted in the trial being re-fixed for 24 November 1997.

157. There was a substantial body of evidence before the learned judge dealing with the consequences for the applicant of the delay between offending and sentence. The applicant himself, as I have said, had been seriously injured in the accident, and there was evidence given by Dr. Nicholas Lis, a consultant psychiatrist, and Mr. Timothy Watson-Munro, a forensic psychologist, that the applicant had suffered post-traumatic stress syndrome (Dr. Lis described it as acute). While the learned judge took the view that the applicant's evidence indicated that he had not fully accepted responsibility for the collision itself, the accident had produced emotional effects on the applicant requiring psychiatric treatment, and various witnesses spoke of his ongoing emotional demonstrations of regret for the consequences of the collision. The applicant, by pleading not guilty, was prevented from demonstrating remorse by his plea, but there was an abundance of evidence from others that he had been emotionally devastated by what had happened, not least when he discovered that Mr. Howard, who was well known to him, and with whom he had had a good relationship, had been driving the other car and had been killed in the accident. Among the witnesses who gave evidence at the plea, John Berry, a civil construction sub-contractor, gave evidence that the applicant was a good and trusted worker, but that he was having great difficulties in dealing with his situation, which prevented him from being fully committed to and focussing on his work. He saw him break down on many occasions because of the frustration he experienced and the problems with which he was dealing. Judith Matthews spoke of the applicant's difficulties in coping over the last three years with how badly he felt, particularly because it was Mr. Howard who had died. Bruno Zausa had wanted to employ the applicant as a fork-lift operator, but since the accident he had been unable to cope and had been "hurting over the peoples he's killed". Zausa said the applicant was a very good worker, very reliable, who never let him down. Evidence to the same effect was given by Jean-Luc Giummarra. The applicant's partner, Christine Paynter, gave evidence that she and the applicant had a child, Matthew, now aged 6, and that she was then pregnant to him with their second child who was due to be born in May 1998, and of their worries and difficulties over the coming trial.

160. The matter of delay was mentioned by the learned judge during argument, and in reasons for sentence, in terms which suggest that, although his Honour accepted that the delay of nearly three years had resulted in the matter hanging over the applicant's head for that lengthy period, nevertheless the period of the sentence imposed was fixed without consideration being given to this period of delay. During argument, the learned judge put it to counsel that delay was not a matter of any significance either favourably or unfavourably to the applicant, that it was "simply a fact of the matter, but not one that really aggravates or mitigates the sentence." In reasons for sentence, his Honour said -

"The delay of nearly three years has resulted in the matter hanging over your head for that period of time, but has also had deleterious consequences for the direct and indirect victims of your offences."

It is unfortunate that the matter of delay was not raised in a separate ground claiming specific error, but it was argued, without objection by Mr. McArdle, under the heading of manifest excess. Mr. McArdle dealt with the issue in argument, and was also permitted to file written material dealing with the question of delay after oral argument had been completed.

165. Delay has been treated in the authorities as relevant to the imposition of sentence in various ways. In R. v. Kane [1974] VicRp 90; [1974] V.R. 759, Gowans, Nelson and Anderson, JJ. said, at 767, that delay was proper to be taken into account because "regard must also be had to the fact that the delay would leave room for life to be ordered according to plan in the meantime, and consequently it must be regarded as a consideration." In R. v. Todd [1982] 2 N.S.W.L.R. 517, at 519-520, Street, C.J. said that where there has been a lengthy postponement -

"fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

In R. v. Liang and Li (1995) 82 A.Crim.R. 39 Winneke, P., dealing with a delay of nearly three years, said that during the period of delay the applicants' circumstances had changed significantly, both had married, fathered a child and obtained stable employment, and continued, at 45, -

"The delay, on the material available to the judge, was in no way attributable to the fault of either applicant and provided, in my view, a powerful mitigating factor which does not appear to have been afforded proper weight in the sentencing process."

In R. v. Miceli [1997] VSC 22; (1997) 94 A.Crim.R. 327 where there was a delay of some 26 months between offending and sentence, none of which was attributable to the prisoner, Tadgell, J.A. said, at 330, that "proper sentencing principles dictate that undue delay in the disposition of a charge should work in favour of a prisoner being sentenced." After reference to Kane and Todd, his Honour continued, at 330, -

"Most particularly is the matter of delay between the commission of offence and the imposition of a sentence for it to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to re-organising his life. That is what happened here."

173. In the present case the learned judge appears to have taken the view that the consequences of the delay on the direct and indirect victims of the offences in effect cancelled out the effect of the delay upon the applicant. With great respect, I do not think this can be correct. I accept that his Honour was entitled in considering the seriousness of the offences to take into account the impact upon the victims, and his Honour did indeed receive some 12 victim impact statements pursuant to Part 6, Division 1A of the Sentencing Act 1991. But delay is, I think, a different question. The principal effect of delay upon the victims was, in my view, that three of the grandchildren were required to give evidence, and in that way re-awaken all the traumatic effects of the accident. But the applicant is already, in a sense, punished for pleading not guilty by at once losing the possibility of any discount for a plea of guilty. That discount is of course given not only for saving the State the trouble and expense of a trial, and for the demonstration of remorse that may be involved, but also because the victims' families and witnesses are spared the trauma of a trial. Mr. McArdle submitted, and I agree, that there will often be cases where delay is an advantage to the prisoner. But, insofar as there was an explanation given for the delay here, it was only of the prisoner's making in that he chose to plead not guilty. One might add that, for the reasons given by the learned judge, the prosecution case was by no means an overwhelming one, relying on a combination of three matters, none of which by itself would have established gross negligence. I do not think the applicant can fairly be held accountable for the failure of the police to find the witness Weber for 10 months, or for the fact that, after nearly 30 months of delay, the trial was fixed at a time when the counsel who had represented him at the committal was to be married. In my view the learned judge, with respect, erred in disregarding the delay of 35 months between offending and sentence.

176. Mr. Tehan's second argument was that the learned judge failed to take into account his finding that the applicant's driving was in the lower range of grossly negligent driving. Mr. McArdle, who argued the case with his customary clarity and fairness, accepted that the sentence was at the higher end of the range, but argued that it was not beyond range. The applicant had a number of prior convictions, for driving and drug offences, including driving both at a speed and in a manner dangerous, and driving with a blood alcohol content exceeding .05 per cent recorded in March 1992, unlicensed driving in August 1993, and driving whilst disqualified in February 1994. Mr. McArdle submitted, with justification, that in these circumstances both specific and general deterrence were important sentencing considerations.

179. The learned judge said he had taken into account five decisions in regard to current sentencing practice, R. v. Arnold (1994) 18 M.V.R. 147; R. v. Cowan (1997) 25 M.V.R. 12; R. v. Cody (1997) 25 M.V.R. 325; R. v. Musson [1997] 1 V.R. 656; and R. v. Gattas, unreported, Court of Appeal, 15 September 1997. Notwithstanding that there are numerous cases dealing with culpable driving, it is not easy to establish any clear guidelines for sentence in cases of this nature. Indeed Tadgell, J.A. said in Cody, at 332, that the Court of Criminal Appeal has not given any definitive guidance upon the proper sentence to be imposed in cases of culpable driving, a comment repeated by Batt, J.A. in Gattas at 8. Each of the five cases quoted involved a clear and bad case of grossly negligent driving, and each prisoner had pleaded guilty. In Arnold the accused, who had five prior convictions for drink driving, had a blood alcohol reading of .27% and was driving after having been warned against doing so. A sentence of 7 years' imprisonment, with a non-parole period of 4½ years, was upheld. In Cowan, the accused's blood alcohol reading was .168%, and she also did not heed a warning that she was not fit to drive. A sentence of 3 years' imprisonment was upheld. In Cody, the accused's blood alcohol reading was .165% and the driving was described as very bad "at the moment of collision and at least intermittently for some distance before that". A sentence of 5 years' imprisonment with a non-parole period of 2½ years was upheld. In Musson the accused's blood alcohol reading was .149% and his driving was characterised as "a very serious breach of the law" calling for a sentence "at the highest level of the range". A total effective sentence of 7 years' imprisonment, with a non-parole period of 4½ years, was upheld. In Gattas, the accused's driving was described as appalling, and his criminality such as to place him "at the upper end of the scale of negligence". A total effective sentence of 7 years' imprisonment, with a non-parole period of 5 years, was reduced on appeal to 5½ years, with a non-parole period of 3½ years. It is noteworthy that in each of these five cases, no doubt because of the pleas of guilty, there was comparatively little delay before sentence, the longest period between offending and sentence being slightly more than 14 months.

182. Mr. Tehan's real complaint was that a sentence of 5 years on the two counts of culpable driving here failed to reflect the judge's finding that the driving was "in the lower range of grossly negligent driving" and, taken with the delay which had occurred, was clearly excessive. The judge must have thought the applicant's prospects of rehabilitation were good, since he said that specific deterrence had "only

a limited application" in his case. Against this argument, the Crown placed the jury's conclusion that the applicant's driving was grossly negligent and the offender's considerable prior convictions, and, for the total effective sentence, the fact that two persons died and three were seriously injured in the same accident. I think Mr. Tehan's argument should be accepted.

186. In my view the sentence of 5 years imposed on both of counts 1 and 2 was, for the reasons already given, manifestly excessive, and I would accordingly uphold the application for leave to appeal against sentence. I would substitute on each of counts 1 and 2 a sentence of 3½ years' imprisonment. I would leave untouched the sentences imposed on counts 3, 4 and 5 and the orders for cumulation made by the trial judge. The total effective sentence would therefore be one of 5 years' imprisonment. I would fix a period of 3 years as the term during which the applicant is not eligible to be released on parole.

191. It does not appear to me that the majority of the High Court in the recent decision of Gipp v. The Queen [1998] H.C.A. 21 laid down a different test for determining whether a verdict is "unsafe or unsatisfactory" within the first ground specified in the body of s.568(1) of the Crimes Act 1958 from that authoritatively stated in M. v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487 and re-affirmed by a majority of the High Court in Jones v. The Queen (1997) 72 A.L.J.R. 78: see Gipp at 17-18 per Gaudron, J.; at 128 per Kirby, J.; and at 169-170 per Callinan, J.; and the dissentients, McHugh and Hayne, JJ., did not do so: see at 48-49. It is true that the majority suggested that the expression "unsafe and unsatisfactory", which is not found in criminal appeal legislation in Australia, preferably should not be used. It is true, too, that the majority treated the expression as used in the notice of appeal in question as extending to the other two grounds in the Queensland Code equivalent of s.568(1).

But those two matters do not bear upon the ground stated in the present notice of application for leave to appeal against conviction.

195. I have had the benefit of reading in draft the reasons for judgment of Charles, J.A. I agree in his Honour's conclusions on both applications and, subject to the first paragraph of these reasons, with his Honour's reasons.

200. I also agree with the disposition of these applications proposed by Charles, J.A. and for the reasons advanced by him.