Rummukainen v R

Court of Criminal Appeal (NSW)|2021-05-03|Before: Garling J, Adams J

Before: Buscombe DCJ File Number(s): 2017/29865

HEADNOTE [This headnote is not to be read as part of the judgment] On 1 April 2019 the applicant was convicted in the District Court by a jury on one count of driving in a manner dangerous causing death, an offence against s 52A(1)(c) of the Crimes Act 1900 (NSW). On 27 November 2016 the applicant was driving south on Gundaroo Road after working at a rural property at Gunning. At about 4.50 pm, the applicant's vehicle failed to take a curve to the left in the road and crossed the unbroken centre line. Mr Alexander Henry was driving in the opposite direction. Mr Henry veered to avoid the applicant's car and at the last moment the applicant attempted to correct. The two cars collided over the centre line of the road and Mr Henry was killed. Other relevant facts were that the applicant had consumed some alcohol that day (although experts were unable to establish whether his blood alcohol level at the time of the collision was below or above the legal limit); and two or three minutes before the collision the applicant had been on a 10 minute long telephone call with his father. The applicant has no significant memory of the events. The collision was observed, through his rear vision mirror, by a witness travelling ahead of the applicant. At trial, it was the Crown's case that, at the time of the collision, the applicant's vehicle was on the wrong side of the road, for which there was no apparent reason, and that that in itself created the sort of danger envisaged by s 52A(1)(c). In his closing address, defence counsel submitted that the "critical question" was why the applicant's vehicle was on the wrong side of the road and advanced a number of possibilities in answer to that question. He then raised, for the first time, the possibility that the applicant may have, without pre-warning or fault on his part, momentarily fallen asleep. The trial judge took issue with this proposition and said that there was no evidence that the applicant had fallen asleep, and his Honour therefore directed the jury to disregard that submission. The applicant sought leave to appeal against his conviction under s 5(1)(b) Criminal Appeal Act 1912 (NSW) on the sole ground that the trial judge erred in law in removing the possibility of sleep from the jury. The Court (Simpson AJA, N Adams J agreeing; Garling J in dissent) granted leave to appeal but dismissed the appeal. Per Simpson AJA (N Adams J agreeing): It may be taken that, in positing that the applicant may have fallen asleep, counsel was seeking to raise a defence based on the decision of the High Court in Jiminez v The Queen: [22]. Jiminez established that: a driver of a vehicle who falls asleep while driving cannot be found guilty of driving in a manner dangerous during the period of sleep because the "driving" is not a conscious and voluntary act; nevertheless, a period of driving preceding an impact may be so nearly contemporaneous with the impact as to satisfy the test of contemporaneity stated in McBride; and in a case based on tiredness, where there is material suggesting that the driver honestly believed, on reasonable grounds, that it was safe for him (or her) to drive, the jury must be instructed with respect to the principles stated in Proudman v Dayman: [26]. Proudman v Dayman establishes that it is a defence to a criminal charge that the accused person honestly believed, on reasonable grounds, in a state of facts which, if true, would have made the conduct the subject of the charge innocent: [29]. Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14; McBride v The Queen (1966) 115 CLR 44; [1966] HCA 22; Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28, referred to. An evidentiary onus lies on the accused person to identify evidence sufficient to establish the defence: [30]. A defence reasonably open on the evidence must be left to the jury: [36]. Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20; Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34; Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14; R v Youssef (1990) 50 A Crim R 1; R v Clarke (1995) 78 A Crim R 226, referred to. The central question was whether the defence of honest and reasonable mistake was open on the evidence: [41]. That arises only if the evidence is capable of establishing the reasonable possibility that the applicant fell asleep: [41]. There was not, throughout the trial, the slightest hint that a suggestion that the applicant had fallen asleep would be made: [44]. In his final address the applicant's counsel drew attention to features of the evidence that supported the inference that the applicant reasonably believed that he had the capacity to drive; these circumstances equally point against the conclusion that the applicant had, or might have, fallen asleep: [52]. The notion that, within two or three minutes of a 10 minute "normal" telephone conversation with his father, the applicant might have lapsed into sleep, is "fanciful supposition": [53]. The defence was not "sufficiently raised" and the possibility that the applicant may have fallen asleep never rose above speculation: [54]. The trial judge was correct to decline to put to the jury the possibility that the applicant might have fallen asleep: [59]. (Further comments regarding s 160(2) of the Criminal Procedure Act 1986 (NSW) and potential unfairness to the Crown: at [60]-[63]). Per Garling J (in dissent): The Crown was required to prove, beyond reasonable doubt, that the applicant was driving the car; and the driving must have been a conscious and voluntary act: [69]. The evidence was that the applicant's car moved at an apparently constant speed, gradually leaving the correct side of the road and moving onto the incorrect side of the road, then corrected immediately before the collision: [70]-[71]. In the circumstances of this case, the movement of the car was capable of giving rise to two possible inferences: (a) that the applicant was inattentive to, or careless about, whether his vehicle was on the correct side of the road; or (b) the applicant had fallen asleep momentarily; at the relevant time: [73]. The Crown was required to persuade the jury beyond reasonable doubt that the second inference was neither a rational nor an open one in the circumstances; and that the first inference was the only reasonable inference or conclusion that could be drawn: [74]. The effect of the Judge's direction was to prevent the jury from considering whether there was a reasonable doubt on one of the elements of the offence, namely whether the applicant was driving the vehicle at the relevant time: [75]. The Judge's direction was inappropriate and caused a miscarriage of justice. The conviction ought to be quashed and a re-trial ordered: [76]. Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572; R v Coventry [1938] HCA 31; (1938) 59 CLR 633, referred to.

Judgment

SIMPSON AJA: On 1 April 2019, following a jury trial, the applicant was convicted in the District Court on one count of driving in a manner dangerous causing death, an offence against s 52A(1)(c) of the Crimes Act 1900 (NSW), for which a maximum penalty of imprisonment for 10 years is prescribed. On 17 May 2019 he was sentenced to imprisonment for 3 years, with a non-parole period of 18 months. He was disqualified from holding or obtaining a driver's licence for 2 years. In an earlier proceeding, leave was granted to the applicant to appeal against the sentence imposed, but the appeal was dismissed: Rummukainen v R [2020] NSWCCA 187.
By notice of appeal filed on 28 October 2020 the applicant seeks leave to appeal, on a single ground, against the conviction. Leave is required because the ground of appeal on which he seeks to rely involves a question of mixed law and fact: Criminal Appeal Act 1912 (NSW) s 5(1)(b). The applicant requires an extension of time in which to seek leave. In my opinion the issues raised in the application are of sufficient moment to warrant a grant of leave. Moreover, he has provided an adequate explanation for the delay in seeking leave such that I would grant an extension of time.
Section 52A(1) of the Crimes Act is in the following terms: "Dangerous driving occasioning death (1) A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle - … (c) in a manner dangerous to another person or persons."
The single proposed ground of appeal is pleaded as follows: "His Honour erred in law in [re]moving the possibility of sleep from the jury."
By s 6 of the Criminal Appeal Act this Court is to allow an appeal against conviction if (inter alia): "… of opinion … that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice … ."
The formulation of the proposed ground of appeal demonstrates that the applicant relies on "the wrong decision of any question of law".

The relevant facts

The following facts were agreed or may be taken to have been established on the evidence.
At relevant times the applicant was a self-employed carpenter, aged 40. On 27 November 2016 (a Sunday) he worked at plastering at a rural property at Gunning. It is likely that he had a barbecue lunch with the property owner and consumed one, or possibly two, mid strength beers. He completed the work he was doing and left the property some time after 4 pm. He drove his Toyota Hi-Lux dual cab utility in a southerly direction on Gundaroo Road. At the time the weather was sunny and visibility was clear. The road was of sealed bitumen with a single lane of traffic in each direction.
At 4.50 pm, on a curve to the left in the road about 20.5 kilometres from the property where he had been working, the applicant's vehicle failed to take the curve, and crossed an unbroken centre line. Mr Alexander Henry was travelling in the opposite (northerly) direction in a Hyundai. Mr Henry veered to avoid the applicant's car; at the last moment the applicant attempted to correct. The two cars collided over the centre line of the road. Mr Henry was killed in the collision.
Mr Jason Alchin observed the collision in his rear-vision mirror. He was travelling in the same direction as the applicant, ahead of him. He saw the applicant's Hi-Lux slowly catching up with him; he passed Mr Henry's vehicle, travelling in the opposite direction; he saw the Hi-Lux merge across into the other lane before, at the last second, attempting to veer back on to the correct side of the road. The manoeuvre was too late and the vehicles collided.
The applicant was injured in the accident but was conscious when police and ambulance arrived. He was spoken to at the scene but could not remember what he was doing on the road. He has not recovered any significant memory of the events. He was interviewed by police four days later, on 1 December 2016, at the Canberra Hospital where he was an in-patient. He said that he could remember having worked at the property at Gunning, but did not recall leaving there. He had a vague recollection of the accident site and of seeing Mr Henry slumped on the steering wheel. His next recollection was of waking up in Canberra Hospital. He was not aware of having been drinking prior to the accident. When asked if he had been feeling tired prior to driving, he is recorded as having answered, "Oh no not that I can remember or recall"; in response to a question whether he had slept well the night before he said "Yeah, yeah I always.. I like my sleep".
In answer to a question about where the sun was, the applicant is recorded as saying: "I couldn't tell ya, yeah I tried to think that time of day you know possibly could have been a bit of sun in the eyes. Cause, cause I don't know exactly where the accident happened so I got no idea."
He indicated to police that if anything more came to mind he would advise them, but "just can't" [remember].
Inspection of the applicant's Hi-Lux revealed a number of unopened small bottles (stubbies) of beer, some of which were broken but the lids of which were intact. A blood alcohol sample taken from the applicant at 6.37 pm on the day of the accident at the Canberra Hospital was found to contain an alcohol concentration of not less than 0.07 grams per 100 ml of blood.
The applicant's mobile phone was in the driver's footwell of the vehicle, with the battery dislocated. Telephone records showed that, for a period of a little under 10 minutes commencing at 4.37.45 pm the applicant had been having a conversation using his mobile phone. The call was with his father, who gave evidence that he believed that the call had been initiated by the applicant. The call was not made using a Bluetooth connection. Mr Rummukainen senior could not tell if the applicant was driving during the telephone conversation but said that the conversation was "normal". He noticed nothing different about the applicant. It can be seen that the telephone call terminated very shortly (approximately two to three minutes) before the collision.
Inspection of the vehicle revealed that there was no mechanical fault or defect that could have contributed to the collision.

The trial

Expert evidence as to the applicant's alcohol consumption was called by the Crown and on behalf of the applicant. The experts could not determine the applicant's probable blood alcohol level at the time of the collision, and eventually it was accepted that it may have been either below or above the legal limit of 0.05 grams per 100 mls of blood. Both experts agreed that, for the applicant's blood alcohol level to have been 0.07 at 6.37 pm, he must have consumed more than two beers. The Crown's expert also gave unchallenged evidence that there is no blood alcohol concentration at which there is no impairment.
The Crown's position, as put to the jury, was simple. It was that, at the time of the collision, the applicant's vehicle was on the wrong side of the road, for which there was no apparent reason, and that that in itself created the sort of danger envisaged by s 52A(1)(c).
The applicant did not give evidence in the trial. During the course of his final address counsel for the applicant put a number of propositions to the jury. He submitted that "the critical question" was why the applicant's vehicle was on the wrong side of the road. He advanced a number of possibilities in answer to that question, such as that the applicant drove on the wrong side of the road as a result of "an innocent mistake", momentary lack of attention, or avoiding something such as wildlife on the road. Relevantly to the proposed ground of appeal, he posited that the applicant, without pre-warning or fault on his part, might have momentarily fallen asleep - "had a microsleep, just for an instant". He then said: "With such a thing as dangerous driving by falling asleep, it's not the act of falling asleep that's dangerous, that means that whatever you do afterwards is involuntary, it's the act of knowing that you're too tired to drive that's dangerous."
Counsel then proceeded to advert to circumstances disclosed in the evidence that could be taken to point to the applicant having fallen asleep - that he had had a long day in which he had done hard physical work, that he had had lunch and a beer with the property owner, that it was a sunny day, and that the road consisted of "curve after curve" until the area leading up to the location of the accident, which counsel described as "straight… a nice, long, easy stretch of road" that was "[d]ifferent to the rest of it". He then pointed to evidence from which, he appeared to suggest, the jury might have inferred that, notwithstanding those factors, the applicant reasonably believed that he was in a fit state to drive. This included that the applicant said that he had had a good sleep the night before, did not recall feeling tired before driving, and that it was 4.30 pm in the afternoon.
At the conclusion of counsel's address, the trial judge took issue with the proposition that "the critical question" was why the applicant's vehicle was on the wrong side of the road; the critical question, he said, was whether the manner in which the applicant drove the vehicle was shown to have been dangerous. He said that there was "not a scintilla of evidence" that the applicant had been asleep at or immediately before the time the vehicle crossed the centre line. In the summing up, he directed the jury accordingly. He said: "The Crown must prove beyond reasonable doubt that, as at the time of the impact, the accused drove his motor vehicle in a manner dangerous to others and what is meant by that is set out in the elements document. There was also a submission put to you raising the possibility that the accused fell asleep while driving. There is simply no evidence that the accused did fall asleep while driving and I direct you as a matter of law that you are to disregard that submission entirely. …" It is this direction that gives rise to the sole ground of the proposed appeal. The "elements document" to which his Honour referred was a seven page written direction setting out the four elements of an offence against s 52A(1)(c) of the Crimes Act, and a detailed elaboration of what constitutes driving in a manner dangerous. No challenge is made to the content of that document; the proposed appeal is confined to the direction to the jury to disregard the possibility that the applicant may have fallen asleep, and the consequent absence of any direction to the jury with respect to issues that could arise in the eventuality that they considered it a reasonable possibility that the applicant had fallen asleep.
Although it was never articulated with any degree of clarity, it may be taken that, in positing that the applicant may have fallen asleep, counsel was seeking to raise a defence based on the decision of the High Court in Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14. Mr Jiminez was convicted of an offence against s 52A, which was then in different terms, but relevantly, in subs (1)(f), created an offence of culpable driving constituted by occasioning the death of, or grievous bodily harm to, a person through the impact of a motor vehicle where the motor vehicle was being driven at a speed or in a manner dangerous to the public at the time of the impact.

Crimes Act s 52A

Since its insertion into the Crimes Act in 1951 a number of versions of s 52A have been enacted and have been the subject of judicial consideration. Basic elements common to the different versions are:

death (or grievous bodily harm) caused (occasioned) to a person;
by the impact of a motor vehicle;
which is, at the time of the impact, being driven in a manner (or at a speed) that is dangerous to others.

In relation to an earlier (but not materially different) version of s 52A (in McBride v The Queen (1966) 115 CLR 44; [1966] HCA 22), Barwick CJ emphasised two features of the offence created by that provision to which the attention of the jury must be drawn. The first is the identification, with precision, of the manner of driving said by the Crown to have been dangerous. That concept, his Honour said, is "in sharp contrast to the concept of negligence". The concept of dangerous driving: "…imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place."
The second feature the Chief Justice emphasised is the need for contemporaneity of the driving identified as dangerous with the impact by which the death (or injury) was caused. His Honour said: "It is not enough that injury results from the driving or that the death or injury occurs at the time of the impact. The impact must occur whilst the vehicle is being driven in breach of the section." [that is dangerously]

Jiminez v The Queen

Mr Jiminez was the driver of a car carrying three passengers. At about 6 am on the day in question the vehicle failed to take a right-hand curve in the highway and collided with three trees. The front seat passenger was killed. At the scene when questioned by police, in a subsequent recorded interview, and in an unsworn statement in the trial, Mr Jiminez said that he had (momentarily) gone to sleep. The High Court held: (i) that a driver of a vehicle who falls asleep while driving is not criminally responsible for the management of the vehicle during the period of sleep and cannot be found guilty of driving in a manner dangerous at a time during which he or she was asleep; that is because any (apparent) act of driving during a period of sleep is not conscious or voluntary (at 577, 578, 581, 584); (ii) that, nevertheless, a period of driving preceding an impact may be so nearly contemporaneous with the impact as to satisfy the test of contemporaneity stated in McBride (at 578); (iii) that, in a case based on tiredness, where there is material suggesting that the driver honestly believed, on reasonable grounds, that it was safe for him (or her) to drive, the jury must be instructed with respect to the principles stated in Proudman v Dayman (1941) 67 CLR 536 at 541; [1941] HCA 28 (at 584).
Here, the Crown did not propound a case that the collision occurred because the applicant fell asleep; nor did it propound "a case based on tiredness". The Crown case was that the dangerousness of the driving was established by the undoubted fact that the applicant's vehicle had crossed the dividing line and was on the wrong side of the road when the impact occurred. That was sufficient to satisfy the requirement of dangerousness specified by Barwick CJ in McBride and the requirement of contemporaneity. There can be little doubt that a vehicle being driven on the wrong side of a dividing line on a country road is (so long as the driver is conscious) being driven dangerously.
It was only in counsel's final address that any question of sleep, or the principles stated in Proudman v Dayman, arose. No such suggestion had previously been made.

Proudman v Dayman

Proudman v Dayman establishes that it is a defence to a criminal charge that the accused person honestly believed, on reasonable grounds, in a state of facts which, if true, would have made the conduct the subject of the charge innocent: see also He Kaw Teh v The Queen (1985) 157 CLR 523 at 590; [1985] HCA 43; CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 at [8].
Once a Proudman v Dayman defence has been raised, the onus lies on the prosecution to prove, beyond reasonable doubt, either that the accused person did not honestly hold the postulated belief, or that any such belief was not reasonable. An "evidentiary onus" lies on the accused person to identify evidence sufficient to establish the defence: Jiminez at 582.
The evidentiary onus on the accused person is not demanding. It is sufficient to point to evidence from which a jury might legitimately conclude that there existed a reasonable possibility that the accused held the honest and reasonable, but mistaken, belief. If the jury so concludes, the Crown will have failed to discharge its onus of proving the accused guilty of the offence charged.

Was a Proudman v Dayman defence raised?

There was nothing in counsel's address that clearly identified any mistaken belief possibly held by the applicant that, if correct, would have made his conduct innocent. Indeed, counsel at no time stated the purpose of the submission to which I have referred above. It has been necessary to make assumptions about what purpose counsel had in mind in what he put to the jury. I have assumed that what counsel had in mind was that the applicant honestly and on reasonable grounds, but mistakenly, believed that it was safe for him to drive. That could be a mistaken belief only if it was shown (at least as a reasonable possibility) that it was not safe for him to drive. That, in turn, could be established by evidence suggesting the reasonable possibility that he had fallen asleep. Thus, for the jury to be directed in accordance with Proudman v Dayman, it was necessary that there be evidence from which the jury might legitimately have accepted as a reasonable possibility that the applicant had fallen asleep. I hasten to add that I am not suggesting that it was necessary that the applicant point to direct evidence to that effect; in the circumstances of this case, in which the applicant was amnesic as to the relevant events, that would have been an entirely impractical requirement. It would have been sufficient to direct attention to any part of the evidence from which it might be inferred that the applicant had fallen asleep.
If there were no evidence from which such an inference could be drawn, any belief that the applicant had, or might have had, in his capacity to drive was irrelevant to any issue in the trial.
The first step, therefore, for the applicant was to identify any evidence that gave rise to the reasonable possibility that he had fallen asleep and that the driving that was dangerous (crossing to the wrong side of the dividing line) had occurred during the period that he was asleep. If he established such a reasonable possibility, then, and only then, did the question of his belief in the safety of his driving arise for consideration. Focus would then turn (as happened in Jiminez) to whether the evidence suggested that he believed that it was safe for him to drive, and whether any such belief was reasonable.
In the circumstances of this case, the possibility that the applicant had such a belief could, like the possibility that he had fallen asleep, only be established inferentially. Only the applicant could give direct evidence of any such belief, and he was amnesic as to the relevant events. Similarly, of course, the Crown could disprove the belief, or its honesty and reasonableness, only inferentially.
It is well established that a defence that is reasonably open on the evidence must be left to the jury, even where the accused expressly disclaims reliance on it: Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20; Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 at [83]; Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14 at [32]. The defence of honest and reasonable mistake is such a defence. Accordingly, if it were reasonably open on the evidence, the trial judge was obliged so to direct the jury. It is, however, not every potential defence that must be left to the jury. It is necessary that there be something in the evidence, whether direct or inferential, that suggests the availability of the defence. As noted in Jiminez, an evidential burden rests on an accused person to identify facts on which a jury might accept the defence as established; if the accused person does so, the onus then lies on the prosecution to disprove the defence. Consideration must then turn to what is sufficient to discharge the evidential burden.
In R v Youssef (1990) 50 A Crim R 1, Hunt J (as he then was), with the concurrence of Wood and Finlay JJ, said (at 3): "That legal onus upon the Crown does not mean, however, that the Crown must bring evidence to meet every such 'defence' which could possibly arise in relation to the offence charged. In every case, the accused bears an evidentiary onus to point to or to produce evidence (or material in an unsworn statement) from which it could be inferred that - as I would prefer to put it - there is at least a reasonable possibility that, for example, the act of the accused was accidental, or that it was provoked or done in self-defence …. The authorities make it clear that such a reasonable possibility must be shown by admissible evidence. Some English authorities put the evidentiary onus as high as requiring an inference to be available that the act of the accused was in fact accidental or provoked or done in self-defence or so on … Others, and most Australian authority, are (in my respectful view) more in accordance with principle and logic, when they say that there must be evidence from which it could be inferred that there is the reasonable possibility that the act of the accused was of such a nature." (italics in original; internal citations omitted.)
The Crown pointed to a long line of authority that has consistently held that the trigger for the obligation to direct the jury with respect to a potential defence is the existence of some evidence to support the defence. In R v Youssef, Hunt J said that the existence of a reasonable possibility of facts that, if true, would make the conduct not criminal must be shown by admissible evidence. In R v Clarke (1995) 78 A Crim R 226, his Honour (then as Chief Judge at Common Law) considered whether an "innocent explanation" proffered in that case for the first time on appeal ought to have been left to the jury. His Honour said (at 230-231): "The bare possibility of innocence is insufficient, and the jury cannot act upon some fanciful supposition or possibility not reasonably to be inferred from the facts proved." (italics added)
In Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14 French CJ, Crennan and Kiefel JJ said that (at [32]): "It is an 'elementary principle of the criminal law that unless express statutory provision to the contrary be made, the onus lies upon the Crown throughout to negative defences sufficiently raised'." (italics added) Their Honours (at [36]) formulated the relevant question as: "In a case where the legal burden is on the prosecution and the evidential burden on the accused - is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived?"
In The Queen v Khazaal (2012) 246 CLR 601; [2012] HCA 26, French CJ said (at [8]): "Under the general law, in a case in which the evidential burden is on the accused, that burden is discharged if there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that the defence had been negatived (citing Braysich at [36])."

Consideration

The central question in the determination of the present application is whether the defence of honest and reasonable mistake was open on the evidence. If so, the trial judge was obliged to leave it to the jury, with appropriate directions as to the constituent elements of the defence, and by reference to the specific facts and circumstances of the case under consideration. That, as I have said, arises only if the evidence is capable of establishing the reasonable possibility that the applicant fell asleep, and was asleep at the time the vehicle crossed to the wrong side of the road.
The trial judge was correct when he said that there was no (direct) evidence that the applicant went to sleep. What remains for consideration is whether there was anything from which an inference to that effect could be drawn.
Falling asleep while driving is a well known phenomenon. In one sense it could be said that, in any motor vehicle collision, one possibility is that the driver fell asleep. In many cases that possibility recedes into insignificance against evidence pointing to other causes of the impact.
I have considered whether the possibility, as a generality, of sleep overcoming the applicant was sufficient to permit a finding, in the specific circumstances of this case, that the applicant might have fallen asleep. I have concluded that it was not. It is of no small significance that the idea appears not to have occurred to counsel at any time prior to his final address. The trial was never conducted on the basis that any Proudman v Dayman issue, or any suggestion that the applicant had fallen asleep, would emerge. There was not, throughout the trial, the slightest hint that such a suggestion would be made. Examination of the course of the trial bears that out.
Immediately after the jury was empanelled a number of legal issues were debated. Defence counsel raised an objection to the evidence of the applicant's telephone call that terminated shortly before the collision, and to the evidence that the call was not made using Bluetooth technology. Redactions to the record of the applicant's interview with police at the Canberra Hospital were sought by both parties. Defence counsel indicated that he intended to call evidence of character in a "limited" (particular) respect (as contemplated by s 110(3) of the Evidence Act 1995 (NSW)). Defence counsel also raised an issue about the expert evidence as to alcohol consumption. Finally, he signalled that he intended to call the applicant's wife as a character witness but indicated that he did not intend to have her remain outside the court, as is usual in the case of witnesses as to disputed factual matters.
These discussions show that considerable thought, on both sides, had gone into the preparation for the trial. It would be usual, at that stage, if counsel intended to raise the possibility of sleep as an issue, to have alerted the Crown Prosecutor to that intention, and to have alerted the trial judge that he would be called on to give directions, on Proudman v Dayman principles, as required by the third of the conclusions stated in Jiminez. No such issue was raised.
At the conclusion of the process the trial judge expressly asked both counsel if there were any other potential issues that might arise, to which both replied in the negative. No suggestion was made by defence counsel that a Proudman v Dayman direction might be called for.
The Crown Prosecutor, as is conventional, opened the Crown case to the jury. Defence counsel was invited to explain to the jury the issues he expected to arise, and did so. Somewhat cryptically, he said: "It's not going to be in dispute that him being on the wrong side of the road caused the accident. What does that leave? You might ultimately think that the critical question is why he was on the wrong side of the road and it's not the time now for me to go through the various possibilities that might explain why this gentleman, who told the police he couldn't remember the accident or parts of his time at Scott Riley's premises. It's not for me now to go through those possibilities, but you can be sure when you hear from me in my closing address to you, after we've heard all of the evidence, that that will occur."
It may be that, in saying this, counsel had in mind the decision in Jiminez, and the possibility of seeking a Proudman v Dayman direction. If so, he never made that plain, and never sought such a direction.
What Gleeson CJ said in R v Birks (1990) 19 NSWLR 677 (at 683) is apposite: "In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information. As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. …"
Of course, had there been any evidence on which the jury might rationally have concluded that there was a reasonable possibility that the applicant had fallen asleep, and that he had honestly and reasonably believed that it was safe for him to drive, the trial judge would have been obliged, as Pemble, Fingleton and Braysich establish, and notwithstanding the failure of counsel to raise the question at any earlier time, to direct the jury accordingly.
In his address counsel drew attention to those features of the evidence (that the applicant had slept well the previous evening, that he did not recall feeling tired, and that it was 4.30 in the afternoon) that supported the inference that the applicant believed that he had the capacity to drive, and that such a belief was reasonable. Ironically enough, these circumstances equally point against the conclusion that the applicant had, or might have, fallen asleep.
In an apparent effort to distance the collision from the applicant's telephone call to his father, counsel emphasised the evidence of the normality of the conversation. That hardly assists the applicant in his contention that he may have fallen asleep. The notion that, within two or three minutes of a 10 minute "normal" telephone conversation with his father, the applicant might have lapsed into sleep, is, to use the language of Hunt CJ at CL in Clarke, "fanciful supposition".
The evidentiary onus to raise a Proudman v Dayman defence is not discharged by the use of a final address to advance what is, at best, a remote theoretical possibility. The defence was not "sufficiently raised" (Braysich) at any point in the trial, including in the final address. The possibility that the applicant may have fallen asleep never rose above speculation, unfounded in any evidence, and contrary to the very factors that counsel advanced as the basis for a reasonable belief in the applicant in his own capacity to drive.
In any criminal trial the judge has the task of giving to the jury directions, inter alia, as to the legal principles to be applied to the facts as found by the jury. Those directions are to be formulated in the light of the "real issue or issues in the case": Alford v Magee (1952) 85 CLR 437 at 466; [1952] HCA 3.
In this case, no issue arose as to the possibility that the applicant might have fallen asleep. Had there been such an issue it would, as stated above, have been the duty of the judge to give appropriate directions.
If the Proudman v Dayman defence were available an explanation would have to start with the concepts derived from Jiminez. The central concept - that a driver who falls asleep at the wheel is not liable for dangerous driving because the driving, during the period of sleep, is not conscious and voluntary - is not something that can be expected readily to come to the mind of a juror.
The task of the judge in this case was, as always, to identify "the real issue or issues"; those issues did not include any suggestion of sleep.
In my opinion the trial judge was correct to decline to put to the jury the possibility that the applicant might have fallen asleep, and a consequent defence based on Proudman v Dayman. There was no failure to explain the relevant law to the jury; the applicant was not deprived of a chance of acquittal fairly open to him; there was no miscarriage of justice.

Further comments

It is appropriate to make two further comments. As noted above, the first inkling of the defence of honest and reasonable mistake, founded on the proposition that the applicant may have fallen asleep, came in defence counsel's final address. Since 1983, in a criminal trial, the accused person has had the right of final address: Crimes (Amendment) Act 1983 (NSW), Sch 4(2), amending s 405 (now repealed) of the Crimes Act; now s 160 of the Criminal Procedure Act 1986 (NSW). When the issue was raised by defence counsel, the Crown Prosecutor had completed her final address. She told the jury (correctly at the time of her address) that there was one issue only for determination: whether the manner of the applicant's driving was dangerous. She devoted virtually the whole of her address to that question, relying on the mere fact that the vehicle was on the wrong side of the road. She plainly had no idea at that time that the applicant's counsel proposed to raise the possibility of a defence of honest and reasonable mistake, dependent upon the anterior possibility that the applicant had fallen asleep. Yet the onus of negating that possibility, if it were properly raised, lay on the Crown.
Subsection (2) of s 160 provides: "If, in the accused person's closing address, relevant facts are asserted that are not supported by any evidence that is before the jury, the court may grant leave for the Crown to make a supplementary address to the jury replying to any such assertion."
It is not possible to say that defence counsel's address falls within subs (2). It did not "assert facts"; rather, it raised the possibility of an interpretation of facts of which there was some indirect evidence. It invited the jury to speculate on a subject of which there was insufficient supporting evidence. In R v O'Donoghue (1988) 34 A Crim R 397 at 404, Hunt J (with the agreement of Carruthers and Wood JJ, citing R v Glusheski (1986) 33 A Crim R 193), said: "The power given by s 405(3) to grant leave to the Crown to make a supplementary address after that of counsel for the accused is limited to those cases where counsel for the accused has asserted relevant facts which are not supported by any evidence or by his client's unsworn statement. Such leave cannot be granted to the Crown simply because counsel for the accused has put arguments to the jury which are fallacious, illogical, extravagant, excessive, unwarranted or dishonest." Section 160(2) could not have been used to permit the Crown Prosecutor a supplementary address.
The consequence of the very late introduction of the concept of the defence was apt to create unfairness to the Crown, who (had the trial judge not removed the issue from the jury's consideration) would have had no opportunity to address the jury on the defence. A criminal trial should be fair to both parties: O'Donoghue at p 404. Had the issue not been removed from the jury's consideration, it would have fallen to the trial judge to advance any argument in response to counsel's submission. That is an unsatisfactory state of affairs, and risks the trial judge becoming involved to an undesirable degree: see the discussion in both O'Donoghue and Glusheski.
In my opinion, while leave to appeal ought to be granted, the appeal ought to be dismissed.
I propose the following orders:
The time in which to seek leave to appeal is extended to 28 October 2020;
Leave to appeal against conviction granted;
The appeal is dismissed.
GARLING J: I have the misfortune to disagree with the orders proposed by Simpson AJA, which are agreed to by N Adams J, for the disposition of this appeal.
I gratefully adopt the outline of the charge, its elements and the evidence contained in Simpson AJA's judgment.
I commence by observing that the Crown's case put before the jury was, on its face, uncomplicated. The collision occurred whilst the applicant's motor vehicle was on the incorrect side of the road, having crossed the dividing line a short time before the collision. The Crown's case was that the fact that the applicant's motor vehicle was being driven by the applicant whilst on the incorrect side of the road was sufficient proof of the element of dangerousness required by the charge.
The Crown was required to prove, beyond reasonable doubt, that the applicant was driving the car, that is to say, the driving relied upon by the Crown must have been a conscious and voluntary act: Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at [9]; R v Coventry [1938] HCA 31; (1938) 59 CLR 633 at p.638. It sought to persuade the jury that this was so by pointing to the clear and unchallenged evidence that the applicant was at all times in the driver's seat of the vehicle; that he was the only person in the car; that he had been driving the vehicle home from his workplace, and that the collision occurred during that journey.
It was also clear from the evidence that immediately before, or perhaps at the very instant of the collision, the applicant's vehicle had corrected, obviously because the applicant had manipulated the steering wheel.
The other evidence of the path of the vehicle, at least after the phone call described in [15] above, was also relevant to whether the car was being driven - namely, the observations of the only eye-witness, Mr Alchin, which are described above at [10]. Whilst the applicant's vehicle was slowly catching up to him, it was not said by the Crown that this indicated any excessive speed. Mr Alchin observed that the applicant's vehicle "slowly veered off to the other side" for a period of five to ten seconds. As I understand this evidence, Mr Alchin was describing the applicant's car moving at an apparently constant speed, gradually leaving the correct side of the road and, without sharply changing direction, moving onto the incorrect side of the road.
This movement of the car was in the opposite direction of the expected movement of the car as it approached the left-hand curve up ahead. It is this movement, in contrast to the correction (which was too late) described above which is significant for the analysis of the collision.
In the circumstances of this case, that movement together with the absence of any other movement of the car which could explain its being on the incorrect side of the road, was capable, in my opinion, of giving rise to two possible rational inferences: 1. the applicant, whilst consciously driving the vehicle was inattentive to, or careless about, whether his vehicle was on the correct side of the road. During that period of inattention or carelessness, his car, whilst he was in control of it, was allowed to travel onto the incorrect side of the roadway; or 2. the applicant had fallen asleep momentarily and was not conscious of the vehicle's whereabouts on the roadway until the sharp correction at the instant of the collision.
In my view, the Crown was required to persuade the jury beyond reasonable doubt that the second inference described above was neither a rational one, nor an open one in the circumstances. That is because to secure a conviction, the Crown had to persuade the jury that the first inference was the only reasonable inference or conclusion that could be drawn from a consideration of all of the evidence and the established facts.
The effect of the Judge's direction was to prevent the jury from considering whether on the whole of the evidence and the facts of which it was persuaded, there was a reasonable doubt on one of the elements of the offence, namely, whether the applicant was driving the vehicle at the time it crossed onto the incorrect side of the road and, during the very short time that it remained there, up to the collision.
In my view, the Judge's direction was inappropriate and has caused a miscarriage of justice. The conviction ought to be quashed and a re-trial ordered.
I acknowledge that there was evidence before the jury which would have told against drawing the inference that the applicant had fallen asleep. That evidence was undoubtedly persuasive. However, in my view, the resolution of those evidentiary questions, including the drawing of the relevant inferences, was a matter for the jury. It was not a matter for the trial Judge to himself resolve.
N ADAMS J: I have had the advantage of reading the judgment of Simpson AJA in draft. I agree with orders proposed by her Honour for the reasons provided.

Amendments 11 August 2021 - Paragraph numbers missing in Garling J's judgment DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 August 2021

Crimes (Amendment) Act 1983(NSW)

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