Ward v R

Ground 1 46This ground adds nothing to the applicant's case and no more need be said about it. Ground 2 47It was submitted on behalf of the applicant that the trial judge had given the jury inappropriate directions in relation to the standard of proof. Senior counsel for the applicant confined the submission to a complaint that when informing the jury that the Crown must prove its case beyond reasonable doubt his Honour inappropriately said "they are every day ordinary words" and later said "what you have to do is think about them as a concept. You don't look at them individually and you don't ask what this word means and that word means." It was submitted that his Honour was in error by making these remarks to the jury and that no trial judge should go beyond telling the jury that the words "reasonable doubt" are every day words which mean what they say. 48It is important to appreciate that the comments of his Honour which are criticised formed part of a comprehensive direction in relation to the standard of proof. That direction was in the following terms: "HIS HONOUR: The Crown must prove the essential factors that go to make up the charge of manslaughter or murder, however shape the manslaughter takes, except for substantial impairment, beyond reasonable doubt. Now you have understand that those words, they are every day ordinary words. What you have got to do is to think about them as a concept. You don't look at them individually and you don't ask what this word means and that word means. You look at it as a concept and you think to yourself, at the end of the day has the Crown satisfied me beyond reasonable doubt, for example in murder, that when the accused drove at the deceased she did so intentionally? She must have done it intentionally if it is to be murder. Another way of doing it is to ask yourself, is there any reasonable possibility that when she drove at the deceased on the second occasion she did not intend to drive at him? If that reasonable possibility exists the Crown does not satisfy you that her version, in effect, in the record of interview could not possibly be true then the Crown has failed to prove beyond reasonable doubt that the charge of murder. It is the same way of looking at it. Am I satisfied beyond reasonable doubt, means the same thing as saying, has the Crown convinced me that the opposite could not possibly reasonably be true? The easiest way to think about it, as I say, is in relation to the accused's record of interview. The Crown must satisfy you to the charge of murder that account could not reasonably be true. She does not have the proving that it is, or could possibly be true [sic]. The Crown has to for the charge of murder has to make it clear to you that you would reject it as a possible account, as a possible scenario. So that is how the onus of proof works." 49In RWB v R [2010] NSWCCA 147 Simpson J considered in some detail, decisions relating to trials where the trial judge had given the jury instruction in relation to the meaning of the words "beyond reasonable doubt" (see in particular Green v R (1971) 126 CLR 28). Her Honour said that it will not be in every case that where the strictures of appellate courts have gone unheeded it may be concluded that the transgression has given rise to a miscarriage of justice. 50However, critical to a conclusion that a direction which is not confined as required by Green has caused a miscarriage of justice will be whether or not the direction which has been given had the effect of diminishing the standard of proof (FP v R [2012] NSWCCA 182 at [178]. 51In the present case it is plain that the trial judge emphasised to the jury that the Crown must prove its case beyond reasonable doubt. Although his Honour's comment that the phrase was to be viewed as a concept and the words should not be looked at individually was unnecessary, they did not in any way diminish the standard of proof. For this reason there is no merit in the argument that his Honour misdirected the jury. 52In further support of this ground of appeal senior counsel for the applicant referred to his Honour's instruction to the jury in relation to the proof of the Crown case by reference to a set of balance scales. The statements criticised were firstly that his Honour said "[i]n a criminal case if you put the Crown's evidence and arguments on one side of the scale in one pan and you put the defence arguments and defence evidence in other side of the pan the scales must go that way, must tip over in favour of the Crown." Counsel emphasised that his Honour went on to give a description of the civil onus intending to contrast it with the position in a criminal case, by reference to the scales saying "if they tip over ever so slightly in favour of the plaintiff the plaintiff has succeeded." 53It was submitted that these directions were wrong and misleading because they diminished the force and degree of certainty required before the Crown could discharge the criminal standard of proof. 54This submission is without merit. Firstly it is apparent that when his Honour spoke of the scales tipping in relation to the criminal onus, his Honour must have demonstrated using his hands to indicate how the scales must tip. More importantly the passages from the summing-up selected by counsel for the applicant form part of a more comprehensive direction in which his Honour emphasised to the jury that the Crown must prove its case beyond reasonable doubt. The entire passage was as follows: "The criminal onus is proof beyond reasonable doubt. The civil onus is proof on the balance of probabilities. One way that is used to explain it, I do not know if it is helpful or not, but I might as well do it because everybody does it and it may help you understand the difference. Think of the set of balance scales, you know, the old scales that used to be in chemist shops, a set of traditional scales of justice, if you like, that is where they are there for [sic]. In a criminal case if you put the Crown's evidence and arguments on one side of the scale in one pan and you put the defence arguments and defence evidence in other side of the pan the scales must go that way, must tip over in favour of the Crown. That is because the onus of proof is on the Crown and it is proof beyond reasonable doubt. But if we are in a civil case you put the evidence of the plaintiff and the plaintiffs arguments in one pan and you put the defendant's arguments and evidence in the other pan. If they tilt ever so slightly in favour of the plaintiff the plaintiff has succeeded. That is because the balance is moved ever so slightly. It must move. If it moves in favour of the defendant, or does not move at all the plaintiff loses." (Emphasis added) 55Finally, in support of this ground of appeal it was submitted that his Honour failed to direct the jury in relation to the "presumption of innocence" which it was submitted may have assisted in correcting what was asserted to be the incorrect description of "beyond reasonable doubt." 56Apart from my conclusion that there was no incorrect description of the concept of "beyond reasonable doubt", the trial judge at an early stage of the trial reminded the jury that the applicant was "presumed innocent", had to prove nothing and the onus fell upon the Crown to prove its case beyond reasonable doubt. On a number of occasions in the course of his summing up the trial judge repeated the instruction that the Crown must prove its case beyond reasonable doubt. I am not persuaded that the fact that his Honour did not refer to the presumption of innocence in the course of the summing up caused any disadvantage to the applicant or had any impact on the trial. 57In my judgment the arguments advanced in relation to Ground 2 are entirely without merit and leave to raise them should be refused. Ground 3 58As I have previously indicated during the course of his initial remarks to the jury, the trial judge referred to the fact that the applicant had pleaded guilty to manslaughter with the consequence that facts that might otherwise have been in dispute were now not in issue. His Honour indicated that it would seem that there was no issue that the applicant's act caused the death of the deceased. However, his Honour did note that although it was open to the jury to find the applicant not guilty of murder or manslaughter, the jury could expect "at the end of the day that the accused is going to be suggesting that she is guilty of manslaughter rather than murder." 59In the written submissions made to this Court it was submitted that his Honour erred by referring to the manslaughter plea which, having been rejected, "must be rejected as having been withdrawn and should have been treated as a nullity." Three cases were advanced to support this proposition: R v Hazeltine [1967] 2 QB 857; 51 Crim App R 351; R v McGregor-Reid [1999] Crim LR 860 and R v Yeardley [2000] 2 Crim App R 14. It was further submitted that it was inappropriate for the trial judge to make these statements at the outset of the trial and the jury should have been directed to ignore what his Honour had said. It was further submitted that it was incumbent on the trial judge to explain that the applicant was not saying she had done a deliberate act but was accepting that she was negligent. 60Further complaint was made that his Honour on more than one occasion in the course of the summing up referred to the fact that the applicant did not dispute her criminal responsibility for the death of the deceased and on occasions said that "murder or manslaughter ... appeared to be the two realistic options." 61On another occasion his Honour said to the jury "you cannot accept her plea as meaning anything in particular except that she accepts responsibility for killing the deceased." 62Apart from the submission that the rejection of the plea should have meant that it was not referred to it was submitted that his Honour gave an unfair and inaccurate description of how trial counsel put the applicant's case. On one occasion his Honour said that the Crown had to prove its case beyond reasonable doubt but added "but she [the applicant] says, at least, well I am guilty of manslaughter on that basis, simply from what I said to the police on the particular day in question." It was submitted that it was unfair to remind the jury of what the applicant had said when she spoke to the police at a time when she was both inebriated and in a state of some shock. It was further submitted that nowhere in the course of his final address did defence counsel make the submission that the applicant was guilty of manslaughter. It was submitted that the effect of his Honour's direction was that the jury were directed not to consider whether the collision was an accident. 63As I have previously mentioned, towards the end of the evidence the trial judge raised with defence counsel the applicant's plea of guilty to manslaughter. It is necessary with respect to this ground of appeal to consider what occurred in a little more detail. 64His Honour said: "Now, Mr Wasilenia, I am troubled about the plea of guilty. Do you still say it could be justified on the basis of gross criminal negligence? Wasilenia: Well, your Honour, it's my submission it is open to the jury bearing in mind, one, there is the alcohol reading, secondly, there is the influence of drugs, thirdly, there's the driving in against the signage. That is, going the wrong way down the one-way street in Lithgow [sic], and at a time when pedestrians are present on the roadway as well as on the footpath and then subsequently mounting the footpath where there are pedestrians present, and it places a duty of care. His Honour: I'm not troubled by all of that. but what I am troubled by is the very high breach of the duty of care that's required for gross criminal negligence. Anyway, you submit that I should leave it open to the jury to find her guilty of gross criminal negligence, manslaughter?" 65Subsequently the issue was again discussed. The Crown Prosecutor submitted that gross criminal negligence manslaughter arose having regard to the applicant's version of the events. The question of leaving the alternative of aggravated dangerous driving was also discussed. In the course of that discussion, defence counsel conceded that there was no defence to a count of aggravated dangerous driving. 66During the course of the remarks which his Honour made to the jury before commencing his summing-up, the trial judge reminded the jury that when opening his case, defence counsel had told the jury that the applicant had entered a plea of manslaughter because she admitted that her negligent driving was so gross as to amount to manslaughter. 67In the course of the summing-up his Honour said: "Remember what I said to you that the accused pleaded guilty at the start of the trial to manslaughter. As it was put to you in opening, the manslaughter that she was accepting that she committed was gross criminal negligence manslaughter. That does not mean that you are bound to find that way. You can not accept the plea as meaning anything in particular except that she accepts responsibility for the killing of the deceased. That plea was rejected by the Crown. It is now open to you to decide what is the appropriate verdict irrespective of the plea based upon your understanding of the facts that you find proved and applying the law to them." 68This direction emphasised to the jury that they were to disregard the plea and determine the appropriate verdict for themselves. Although the issue had been discussed, both with the jury and in their absence, in the manner which I have previously indicated, it was this direction which brought the matter into its proper context. 69It is significant that trial counsel did not object to the course which the matter had taken. There is nothing to suggest that he adopted this position otherwise than because of the potential forensic advantage in the jury finding manslaughter rather than murder. As I have previously indicated this was a legitimate course for him to take and is a position commonly adopted in trials where there is little prospect of avoiding a conviction for manslaughter but a prospect that an acquittal on the murder count may result. 70With respect to the other two issues raised under this ground of appeal there was no complaint at the trial from defence counsel. The jury could hardly not have been mindful of the fact that when the applicant spoke to the police she was still under the influence of alcohol and affected by the accident. 71In relation to the submission that trial counsel did not make the submission that the applicant was guilty of manslaughter, the position is that he made submissions to the effect that the collision was "an accident." He ended his address to the jury with a submission that the applicant was not in a fit state at any time to be driving the vehicle. He said "when this collision occurred it created a set of consequences that resulted in an appalling tragedy but murder it ain't." 72Implicit in counsel's submissions was an acceptance that, although the applicant did not suggest that she was provoked, a proposition never advanced by defence counsel, the jury should find her guilty of manslaughter but not murder. Far from complaining about the manner in which the trial judge had dealt with the issues created by the entry of the plea before the jury to manslaughter, counsel effectively embraced it. It could not have been other than a conscious decision to enter the plea before the jury panel. Once that had occurred, the fact of the plea could not simply be ignored. It was necessary to put it into context for the jury. Furthermore the trial judge had to ensure that the forensic advantage which the applicant sought by entering a plea was not lost. The trial judge appropriately dealt with these matters. 73I would refuse leave to raise this ground of appeal. Ground 4 74The applicant submitted that there was a possibility that the incident was an accident. It was submitted that this possibility was recognised by the trial judge when he spoke to some visiting students about the trial in the absence of the jury. It was submitted that notwithstanding this possibility, no directions were given in relation to the issue of accident. 75It was submitted to this Court that the effect of his Honour's direction in relation to manslaughter was to effectively exclude the issue of accident from the jury's consideration. It was submitted this was reinforced by his Honour referring on more than one occasion to either the motor vehicle or the applicant driving at the deceased and a further direction that "this wasn't an accident, it was an intentional act on her part." 76In the course of his summing up the trial judge addressed the issue of provocation. His Honour said using conventional language: "so you have to consider whether there is a reasonable possibility that the accused did lose her self control by reason of what the deceased and his group said or did to her during the events in the lane." His Honour also said that the applicant had not asserted "she was provoked, rather she says she panicked and accidentally drove at the deceased; in effect, it was an accident as a result of her very incompetent driving." The possibility that the event was an accident was accordingly addressed by his Honour. However, having regard to the sequence of events revealed by the CCTV footage, the prospect of the jury finding that the applicant's actions were not deliberate were slim if non-existent. 77With respect to the submission that his Honour erred by saying to the jury at one point in the summing-up "this wasn't an accident ..." it is apparent the applicant's counsel framed the submission without reference to the context in which his Honour spoke. The full sentence, from which part was extracted by counsel, was as follows: "so if you come to this question of murder you must at least have come to the view that notwithstanding her intoxication she was able to form certain intentions, and one of those intentions was to drive at a particular person; this wasn't an accident, it was an intentional act on her part." 78When seen in the context of the entire sentence it is plain that his Honour did not direct the jury that the applicant had committed an intentional act. All that his Honour was saying was that in order to reach the conclusion that the applicant may be guilty of murder or, in the alternative manslaughter by reason of provocation, the jury would have to find that when driving at the deceased she was carrying out an intentional act. It is unfortunate that the submission was made as it was. It completely misrepresents what his Honour said. 79There is no merit in this ground of appeal and leave to raise it should be refused. Ground 5 80The applicant accepted that she was heavily intoxicated with a combination of alcohol, cannabis, ecstasy and prescription drugs at the time of the collision. Apart from the evidence of her blood alcohol level she was described by a constable who attended at the scene as "being unsteady on her feet, very emotional, shaking and crying uncontrollably." At 5.00am she was described by another policeman as appearing to be affected by alcohol, unsteady on her feet and her breath smelt of alcohol. When her blood alcohol level was taken at Royal North Shore Hospital, about two hours 10 minutes after the collision, she returned a reading 0.171. The Crown did not dispute that at the time of the accident the applicant was affected by alcohol, ecstasy, Valium or diazepam. There was evidence from Dr Allender that the combination of alcohol and the drugs would have affected the applicant's driving ability and would have been likely to increase her aggression and risk taking behaviour. 81Although the matter passed without controversy at the trial, the applicant complained to this Court that his Honour had made a number of errors when directing the jury on these issues. To my mind there is no substance in these complaints. Although it is necessary to record the submissions, it is not necessary to otherwise discuss them in any detail. 82The trial judge directed the jury in relation to the relationship between intoxication and the capacity to form an intention. His Honour said: "You can have an intoxicated intention. You can have an intention that is based on alcohol and drugs. In fact, very often, unfortunately, the situation is that a person forms a certain intention because they are intoxicated and they would no [sic] not have formed it if they were not." 83The applicant complains that although it may be true that a person can have a "intoxicated intention" the balance of the direction was not a matter of judicial knowledge and should not have been made. It was submitted that the last part of the direction was misleading. 84During the course of the trial the trial judge said to the jury on this issue: "You have a specific intention to do something, even though you are intoxicated. That may be the reason why you have that intention. You have heard some evidence about the disinhibiting effect of alcohol. How sometimes people will do things, form intentions, carry out actions they wouldn't do if they were stone cold and so on." 85The applicant submitted that these remarks were "prejudicial" and should not have been made. It was submitted that when read together with other directions and comments by the trial judge, the directions were in substance directions of law to the effect that rather than confusing the accused her intoxication caused her to have a positive intent. It was submitted that his Honour's directions "invited the jury to be satisfied of the accused's intent because generally alcohol caused such an intent." 86Complaint is made about other directions or comments which the trial judge made in relation to intoxication. 87At SU 30 the trial judge directed or commented that: "Nobody is suggesting here that the accused was so intoxicated that she did not know what she was doing at any state at any time." 88It was submitted that this did not do justice to the applicant's case because she had effectively told the interviewing police that she did not understand how she had come to be where she was or, how she hit the deceased; she showed confusion and considered herself to be still drunk, as did others who observed her, when she was being interviewed. 89Complaint is also made in relation to the further statement by his Honour: "Of course it also may be relevant in explaining, if you accept her account, as a possible scenario as to why she mishandled the motor vehicle, because she was intoxicated." 90It was submitted that this was incorrect and misleading in so far as it again invited the jury to consider her (confused) account and if they rejected it to dismiss the effect of intoxication. It was submitted that it also raised the suggestion that this was something like a special defence for which there was a burden on the accused to establish. 91It was further submitted that the simple and correct direction to the jury that should have been given was that if the jury thought that the applicant did not or might not have had the requisite intent then they should acquit her. 92During the discussion of the expert evidence with respect to abnormality of mind his Honour said: "intoxication can impact upon people differently and it can make them more impulsive. It can make them more irascible." 93It was submitted that these remarks were highly prejudicial and should not have been made. It was submitted that they were not and could not properly have been given as a direction of law but were very likely to have been received by the jury as such. It was submitted that they were doubly unfortunate in a trial where one argument being advanced by the Crown was that the applicant had simply lost her temper over a very trivial incident. 94On Friday 25 March 2010 after retiring, the jury asked the following question "how does intoxication impact upon the formation of intent?" 95The trial judge responded by giving further directions in the following terms: "If we're dealing with murder you must have come to the conclusion that she at least intended to drive the motor vehicle at the deceased or one of the group, whether she picked him out particularly or was just driving at any person. So if you come to this question of murder you must have at least come to the view that notwithstanding her intoxication she was able to form certain intentions, and one of those intentions was to drive at a particular person; this wasn't an accident, it was an intentional act on her part." 96The following submissions were made: (i) the direction was not correct and confused the issue. It assumed a vital issue that the jury had to decide, namely that the jury had already decided that the accused had deliberately driven at the deceased or the group. A vital issue that the jury had to determine was whether at the time the path of the accused's vehicle went in the direction of where the deceased or the group of young persons was, the applicant was deliberately aiming at him or them. That required a consideration of the effect of alcohol and drugs on her. It was submitted that it was quite wrong to commence with the assumption that she intended to drive at the deceased or one of the group. The important issue was not her ability to perform certain physical functions such as steering the car, nor her capacity to form the particular intent but whether she did form such an intent. R v Garlick [1981] 72 Cr App R 291 (ii) the direction should not have been given as the ability of a highly intoxicated person to carry out complex tasks was not the subject of evidence before the jury. There are abundant illustrations in decided cases of highly intoxicated persons being able to carry out complex motor tasks. (iii) the direction "this wasn't an accident" was a direction of law that removed from the jury's proper consideration a defence upon which the onus lay on the Crown. 97At SU 98/9 the trial judge directed the jury " Don't get confused between blood alcohol readings for the purposes of control of the motor vehicle and blood alcohol readings for the purposes of acting any other way as a human being. There is [sic] a lot of skills involved in a motor vehicle, driving a motor vehicle, beyond the intention. The most drunk person in the world can form an intention to get into the motor vehicle and drive it home. He's formed, or she forms that intention. That's why he or she is in the motor vehicle." 98It was submitted that: (i) far from removing confusion the effect of this direction was to effectively direct the jury to ignore the accused's high alcohol reading which was always an important fact for the jury to take into account when assessing her level of intoxication and its effect on her. (ii) Nowhere did the judge summarise in detail the evidence of Dr Allender and other doctors on this issue. 99At SU 99 the trial judge directed the jury: "but nobody would doubt that the person was capable and did form the intention of driving the motor vehicle, and even formed the intention to drive to a particular place". It was submitted that this "direction" confuses physical ability to steer a motor vehicle with intent. Furthermore, it again confuses the capacity to form an intent with its actual formation. 100At SU 99 his Honour said: "Nowhere in the evidence of Dr Allender was it ever suggested to him or by him that the level of intoxication was such that she could not form certain intentions. But let's just have a look at it. This is not a theoretical exercise, we 're not dealing here with a test for young lawyers about the theoretical impact of alcohol on intention." 101Again it was submitted that reference to capacity to form the requisite intent is wrong in law, unnecessary and confusing. Reference was made to R v Makisi [2004] NSWCCA 333 and R v Viro (1978) 141 CLR 88. 102The applicant emphasised that following the above, the trial judge proceeded to make a number of references to the fact that no one was suggesting that the applicant was unable to form the intent and it was submitted "put sarcastic and unreasonable propositions" to the disadvantage of the applicant which the jury was bound to reject. The applicant drew attention to the following matters in the summing-up: At SU 100 the trial judge told the jury: 'Was she driving in some randomly unreasonable, unpurposeful way, she just got in the motor vehicle and thought she'd just tour the streets without any intention of what she was going to do?" The applicant emphasised that the trial judge went on to then suggest that because the applicant knew where she was going to get cigarettes "... you might accept that she was not that intoxicated that she didn't understand that" and then told the jury that because she had said that she had got out of the vehicle to help or assist Mr Long that was "purposive intentional behaviour" although it was submitted that that proposition was directly contrary to the Crown case. At SU 101 the trial judge said to the jury: "She got out of there with a specific intention, not just to drunkenly wander around the streets unsure of what she was doing, without any formed intention." At SU 101 the trial judge said to the jury: "If you accept that she kicked one of the persons or that she abused one of the persons, again, it was all intentional purposive behaviour..." At SU 101 his Honour told the jury: "So we know that although she's intoxicated, although she's got a reading of at least 0.161, although that's a very high reading for the use of a motor vehicle, it's well over the limit for driving a motor vehicle, that doesn't necessarily tell you anything about what her intentions were and whether she was capable of forming a particular intention to bring about a result." At SU 101 his Honour told the jury "she gets back to the motor vehicle ... - its again purposive intentional behaviour. The accused's case was that she wanted to get out of the street, - purposive intentional behaviour. She wanted to avoid the boys, the group. She wanted to get to safety. An intention to act in a particular way, to achieve a particular result, to achieve a particular object." At SU 102 his Honour told the jury "... nobody's suggesting that what she's doing was not purposive; that she didn't have an intention to bring about a result." At SU 102 his Honour told the jury: "So the point here is that nobody's really suggesting on any count that she was so drunk that she was unable to form intentions, that she was unable to act purposively to bring about a result..." At SU 102 his Honour told the jury: "Now you have to take intoxication into account, but you've got to look at it in a real situation, what was going on here and what's each side saying about it." At SU 103 his Honour told the jury: "Nobody is suggesting that she was so drunk that she was incapable of knowing what she was doing, knowing what she wanted to do, knowing what purpose she wanted to gain, knowing what objective she wanted to bring about..." At SU 103 his Honour reiterated in part what he had said earlier, saying: "Now the importance of intoxication might explain why people do things and we talked about this yesterday. She told the police officers that one of the problems she had was alcohol and that sometimes it had an effect on her and that, you might think she's suggesting that sometimes it made her aggressive." At SU 103 his Honour told the jury: "So it impacted on her intention, it impacted upon her purpose, it didn't eradicate them. It didn't mean that she didn't have an intention. It meant that she might have had an intention to do a particular thing that she might not have had that intention to do had she been stone cold sober"... "But, so, sometimes the alcohol can in fact, rather than tell you or rather than indicate that the person hasn't got a specific intention, indicate the person has it. Because an intention, even if its an intoxicated intention, even if its an inhibited intention, is an intention, and we know that alcohol sometimes leads us to do things, leads us to make decisions, leads us to have intentions that we wouldn't have if we weren't under the influence of alcohol." At SU 104 his Honour told the jury, referring to the applicant's version: "Reject that version, reject beyond reasonable doubt, and then come to look at the impact of alcohol on her. Did it make her form an intention that she wouldn't have done if she had been sober? Had it made her aggressive, had it led to her forming a view or forming an intention to do something that she wouldn't have done had she been stone cold sober and thought about it?" 103It was submitted that the final directions in relation to intoxication and intent were inaccurate, misleading, conflated ability to perform a physical act with purpose and conflated purpose with intent. It was submitted that the remarks set a tone of sarcasm and denigration of the applicant's case and amounted to a final Crown address highly prejudicial to the applicant. It was submitted that by the series of examples of so called purposive behaviour the trial judge misled the jury on the real issue of the effect of alcohol on the applicant's specific intent. 104It was further submitted that the trial judge failed to put an alternative scenario open on the evidence. 105At T648 the trial judge said of the jury, in the latter's absence: "they may decide because of her intoxication that she's got no particular intention, she just wants to get him. Maybe she hoped to apply the brakes and scare him and went too far." 106At T702 the trial judge said " Well she could have driven at him with an intention to scare him, with no intention to kill or do grievous bodily harm and just mucked it up as it were. So that seems to me to give rise to unlawful and dangerous act." 107However, it was submitted that in all his directions/comments to the jury the trial judge never mentioned this line of reasoning as even a possibility. Instead it was submitted that his Honour reiterated with some vigour the Crown argument which the applicant records as an extract from SU 46 in the following terms. The applicant referred to what was said to be an extract from his Honour's summing up. It was not correct. His Honour actually said on this issue: ""[A]nd the Crown says if you reach that conclusion [that the applicant intentionally drove the vehicle at the deceased], why else would she do it other than to do him really serious injury? Why would she do it other than that, or to cause his death?" 108And at SU 47 told them: "If you find that she did intentionally drive at him then of course she would have the intention to kill or inflict grievous bodily harm." 109It was submitted that contrary to the above the jury should have been directed that if, because of the evidence of the effect of intoxication or otherwise they were not satisfied that the accused did in fact have the necessary intent they must acquit: R v Bellchambers [2008] NSWCCA 235. 110It was further submitted that the trial judge contradicted other directions he gave on intent. 111At SU 69 it was submitted that the trial judge cut across all his other directions of their being a requirement for the Crown to establish an intent to kill or cause grievous bodily harm by telling the jury: "people are not that much in control of a motor vehicle that they can decide how much or what degree of injury they are going to impose on a person." 112It was submitted that this effectively directed the jury that if they were satisfied that the applicant had driven at or in the direction of the deceased objectively that would suffice to establish the requisite intent. As I have already indicated to my mind there is no substance in the applicant's submissions. 113His Honour's comments about the relationship between alcohol and the capacity to form an intention were based on the evidence that was given in the trial by expert witnesses. I am satisfied that the jury would have understood them in this manner rather than as directions of law. 114It is important to appreciate that it was not the applicant's case that she was "so intoxicated that she could not know what she was doing at any time." Her case was that she was intoxicated and partly as a result, had trouble with the gear shift, the accelerator and/or the brake. The problems with the brake and accelerator were compounded because of the boots she was wearing in addition to the fact that the passenger had grabbed the steering wheel from her. 115A number of his Honour's comments were favourable to the applicant and invited the jury to have regard to whether the applicant mishandled the car as a result of her intoxication rather than intentionally driving at the deceased. 116His Honour encapsulated the relevant issue for the jury in the following passage from his summing up "In effect, the real question here, the one for you to determine, is, remembering where the onus of proof lies and what the standard of proof is, whether it's more likely than not that at the time of the killing, that's the relevant time, the accused was suffering from this abnormality of mind, that is, that she was, as I understand Dr Roberts' evidence, in a manic state which interfered with her capacities in two ways, one, to understand and react to events in a rational and logical way, and, secondly, to control herself. In other words she was more impulsive. She did not think about consequences because of the effect upon her of this manic state. Dr Roberts said that was even so notwithstanding her highly intoxicated state and effect that that would have the same you might think effect upon her. You can appreciate that we talked about this. Intoxication can impact upon people differently and it can make them more impulsive. It can make them more irascible but anyway that is the issue in a nutshell." 117His Honour concluded his directions with the following statement: "She had an intention. Both sides agree she did. Again, it's for you to decide what that intention was. But nobody is suggesting she didn't have an intention, she didn't have a purpose, she didn't have an objective in what she was doing. She gets to the end of the street. Again, different views about what she was doing and what she could have done or what she was intending to do, but nobody's suggesting that what she was doing was not purposive, that she didn't have an intention to bring about a result. The Crown says her intention, even though it was a drunken one, is to follow the boys and to punish them. The accused's case is no, my intention was to avoid them, I just simply got confused by the signs, I would have better gone right but I went left, I found myself in trouble, there were more people than I believed were there, again, what did I do, I didn't meander around, I didn't drunkenly wonder what I was doing, where I was going, I was confused about the situation; I had a purposive intention to get out of there, to do a three point turn or U turn, purposive, intentional behaviour, even though drunk. The Crown says no, no, no, that's not her intention, that's not her purpose. Her purpose was to punish. So the point is here that nobody's really suggesting on any count that she was so drunk that she was unable to form intentions, that she was unable to act purposively to bring about a result. The question is, what did she want to bring about?" 118His Honour was clearly directing the jury that they had to determine what was the actual intent the applicant had formed. To my mind, there was nothing in his Honour's directions which misstated the issue which was inherent in the "battle ground" on which the trial was fought, or would have occasioned any unfair prejudice to the applicant. The fact that in discussion with counsel, his Honour may have expressed other thoughts is not to the point. All that matters is that the directions given by the trial judge were appropriate and fair. To my mind they were. I would refuse leave to raise this ground of appeal. Ground 6 119The law in relation to provocation is complex and difficult. The intellectual steps which a jury must take mean that there are difficulties for any judge seeking to explain the relevant concepts in a manner which a jury will understand. This is made more difficult when the accused does not raise the issue and accordingly cannot assist by identifying the conduct which is asserted to have provoked the criminal act. 120Although the applicant did not raise the issue of provocation at her trial his Honour formed the view that the jury should receive directions in relation to it. As I have previously indicated during the course of the trial, the jury sought guidance on the differences between murder, manslaughter and the role of provocation. At that point his Honour told the jury that the applicant did not seek to raise provocation but asserted that she either, did not intend to kill the deceased, or if the jury found that she did, then she could establish the defence of substantial impairment. 121At a later stage of the trial his Honour gave the jury a direction which indicated that the only issue in dispute in relation to murder was the matter of intention. 122It was submitted that by the time of the summing up, having regard to the fact that his Honour believed it appropriate to give directions in relation to provocation, he should have told the jury to ignore his earlier remarks. 123The trial judge gave the jury written directions with respect to provocation. He gave the jury the document and during the course of his oral directions read verbatim from it. No complaint is made to this Court about the content of the written directions. His Honour was careful to tell the jury that although it was not the applicant's case that she was provoked his Honour was obliged to direct them in relation to it. 124To my mind there was no reason for his Honour to tell the jury to ignore his previous comments. It remained no part of the applicant's case that she had acted under provocation. Her counsel did not address the issue. 125I am satisfied that the comments about which the applicant complains would not have been understood to suggest that there was any legal or evidentiary requirement placed on the applicant. They simply reminded the jury that in order to consider the question of provocation they must effectively disregard the applicant's version of the relevant events. His Honour made plain to the jury that the onus remained on the Crown to negative provocation beyond reasonable doubt. 126Although his Honour found it necessary to give the jury instruction as to the law relating to provocation there was to my mind no event in the surrounding circumstances, or act of the deceased, or those with him, which could have caused the jury to have a doubt as to whether the applicant acted under provocation. For this reason it is strictly unnecessary to resolve the criticisms which have been advanced in respect of his Honour's directions. They could not have occasioned a miscarriage of justice. There could be no possibility of a jury finding that the conduct of the deceased or his friends could have induced an ordinary person in the position of the applicant to have so far lost self control as to have formed an intention to kill or to inflict grievous bodily harm on the deceased. 127Nevertheless it is appropriate to consider the submissions which were made. It was submitted by the applicant that the directions which his Honour gave to the jury were flawed because amongst other reasons they invited the jury to reject the "partial defence" by stressing that the applicant did not herself say that she was provoked. Complaint is directed towards the following passages in the summing-up which the applicant extracted and included in the written submissions. I have set out below the passages as they were set out in these submissions: "One of the issues that you have to look at I suppose and one of the things that makes it somewhat difficult, is that she doesn't say she was provoked. Her account is not that she was provoked and lost her self-control. "... the accused says she wasn't provoked at all. The accused case is that she was frightened as a result of what happened in the laneway. She wasn't angry, she wasn't certainly wasn't provoked." "you may wonder why I am telling you about provocation when in fact the accused says she wasn't provoked at all. The accused's case is that she was frightened as a result of what happened in the laneway. She wasn't angry, she wasn't, certainly wasn't provoked. ... I'm obliged to tell you the law on provocation even though that's not the defence case. In her account the accused has not asserted that she was provoked, rather she says that she panicked and drove at the deceased ..." 128A further criticism was made of these remarks. It was submitted that "insofar" as they suggested that there was some legal or evidentiary requirement that the applicant should say she was provoked, his Honour was wrong in law, and "at the very least" misleading. 129I have no hesitation in rejecting these criticisms. As I have previously indicated the applicant never suggested that she was provoked and it was appropriate for his Honour to make plain to the jury the manner in which the applicant sought to raise her defence. Her counsel did not address on the issue although he did not oppose it being left to the jury by the trial judge. The written directions were settled with trial counsel and there was no objection raised to his Honour's oral directions. 130The passages referred to by counsel for the applicant did not suggest that there was any legal or evidentiary requirement placed on the applicant. They did, as his Honour inevitably was required to do, tell the jury that in order to effectively consider the issue they would have to disregard the applicant's version of the events. 131It was further submitted by the applicant to this Court that his Honour gave a number of directions which suggested a need for immediacy of reaction before provocation could be sustained. The passage to which counsel referred was part of his Honour's directions. The passage was as follows: "Very often provocation cases occur almost instantaneously." Of course the longer the period between the conduct and the response the less it may be likely that conduct is the loss of self-control arising from the act of provocation. But it's one of the factors you take into account. For example, you might more readily find that she acted from a loss of self-control if she immediately got into the vehicle and drove at the people in the laneway and killed them there and then. I'm not suggesting you would or you wouldn't, it's just one of the relevant factors you take into account." 132This formed part of a longer passage which in its entirety reads as follows: "The next matter to consider is the severity of the provocative act and its effect upon the accused. There must be a possibility that the provocation actually caused the accused to lose her self-control and kill the deceased while deprived of her self-control. I interject again. Very often provocation cases occur almost instantaneously. Somebody does something or says something to the accused and there's a loss of self-control because of the provocative at or the provocative conduct but there doesn 't have to be. Of course the longer the period between the conduct and the response the less may it be likely that conduct is a result of loss of self-control arising from the act of provocation. But it's one of the factors you take into account. For example, you might more readily find that she acted from a loss of self-control if she immediately got into the vehicle and drove at the people in the laneway and killed them there and then. I'm not suggesting you would or you wouldn't, it's just one of the relevant factors that you take into account in deciding whether the killing, that's what we 're looking at, the killing, was a result of the loss of self-control" (emphases added) 133There is a further passage in the summing-up of relevance: "I told you there are a number of ways upon which you can find the verdict of manslaughter, and it all depends upon what facts you find. One of the ways we just discussed is by finding that the accused may possibly have been acting under immediate provocation, in other words that the Crown hasn't satisfied you beyond reasonable doubt that if she intentionally drove at the deceased with the intention to kill him or do him grievous bodily harm that she was not at that time acting from a loss of reason as a result of provocation." 134It is apparent that his Honour introduced the concepts of instantaneous or immediate response. However, he did this in order to assist the jury in understanding the nature of provocation in the criminal law. There may have been error if in the facts of the particular case, the introduction of those concepts may have diverted the jury from its task and excluded some of the circumstances of the alleged provocation from their consideration. However, that was not the position in this case. The relevant circumstances were confined in time and there was no possibility that the jury would have been misled into excluding the entirety of the encounter between the deceased, his friends and the applicant from their consideration of the issue of provocation. 135It was further submitted that his Honour gave a wrong and misleading direction "on the need for a loss of self control by the applicant." In particular the applicant emphasised that his Honour told the jury that loss of self control is a "loss of ability to reason" or "loss of her normal ability to reason." Her counsel submitted that his Honour then drew a distinction between loss of self control and loss of temper without explaining how the jury might resolve the difference between the two states. It was submitted that anger is a reaction that can be accommodated within provocation. It was further submitted that his Honour failed to properly establish the distinction that the law draws between an intentional killing in an uncontrolled state induced by the deceased's provocative conduct and an intentional killing induced simply by revenge. 136To my mind there is no substance in either submission. No doubt a person who loses their self control may be angry but his Honour correctly emphasised that anger alone is not enough. There must be, even in a person who has been provoked to anger, a loss of self control. Furthermore, there was no requirement for his Honour to embark upon a discussion which contrasted provocation with a killing motivated by revenge. There was no suggestion that the applicant acted from a desire to obtain revenge for any act of the deceased. 137In the course of his oral directions his Honour spoke in terms of whether the provocation was such that it would cause the applicant to lose her self control. On two occasions when referring to the "ordinary person" test his Honour referred to "would cause". 138There is no doubt upon the assumption that the transcript is an accurate record that his Honour slipped when using the word "would." His Honour told the jury on numerous occasions both in the written directions and orally that the test was whether the provocative conduct could have caused the applicant to lose self control. As it happens on the pages of transcript to which the applicant draws attention, his Honour also used the word "could." I am not persuaded that the two mistakes which his Honour made would have been of any significance to the jury. If there was any prospect that his Honour's slips could have caused them confusion they would undoubtedly have returned to the written directions to clear up any ambiguity. The jury's silence, they did not ask any questions about the issue, bears testament to the fact that they understood the test which they had to apply. 139It was further submitted that his Honour erred by telling the jury that the law did not require that the reaction of the ordinary person had to be reasonable and failed to emphasise that the capacity for self control of that person had to be measured by reference to an ordinary person who had been provoked to the extent that the applicant had been provoked. It was submitted that both propositions were supported by the High Court's discussion of these issues in Green v The Queen (1996-97) 191 CLR 334 Brennan CJ at 346 and McHugh J at 371. 140I do not accept the submission. I do not understand the High Court to have said that a trial judge is required to tell the jury that the reaction of the ordinary man did not necessarily have to be a reasonable one. 141It was submitted that the trial judge gave incorrect directions on proportionality. It was submitted that the trial judge told the jury that the ordinary person test put a limit on its operation in respect to a particular accused by considering how an ordinary person might possibly have reacted to the provocative conduct as it affected the accused. It was further submitted that his Honour gave the jury unnecessary and confusing directions by making a part analogy with the law on self-defence, when his Honour said: "...it's a limit. It's a standard that the community bases, it says, right, we understand that people can act in self-defence, but there's only so far you can go, and how far you can go is how far the ordinary person in that situation would go." 142His Honour continued: "you take all of that into account, then when you come to apply this limit, as I've called it, to how far a person can go when they're provoked". It was submitted that this direction was contrary to the provisions of s 23 (3)(a) of the Crimes Act 1900 because it suggested that the application of the test required that there be a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission which incorrectly reintroduced the concept of proportionality that had been rejected by the common law: R v Camplin [1978] AC 705 at 717 cited by O'Brien CJ at CL in R v Croft [1981] 1 NSWLR 126 at 140. 143It was further submitted that it was wrong; or at the very least unwise to raise proportionality in the "ordinary person test", as the jury might regard this as an essential part of the "objective element": R v McKeown [2006] VSCA 74 per Callaway J; Rv Margach [2007] VSCA 110 at [18-21]. 144It was further submitted that for balance the directions should have been accompanied by further directions. Firstly, that provocation is not ruled out by the formation of an intent to kill or do serious bodily harm and secondly, that the effect of provocation is not so much to negate the existence of an intention, which is an essential element in the offence of murder, as to deprive her of her self-control; provocation may occur where a person does intend to kill or inflict serious bodily harm but her intention to do so arises from sudden passion involving loss of self-control by reason of provocation; and traditionally the onset of sudden passion involving loss of self-control characteristic of provocation has been associated with acts or actions which provoke the accused to uncontrollable anger or resentment: per Mason J in Van den Hoek v The Queen (1986) 1 61 CLR 158 supra. 145Further criticisms were made of his Honour's directions on this issue. They were in part repetitive and sometimes unclear. They are reflected in the written submissions which are detailed. 146To my mind these submissions must be rejected. Although his Honour referred to self defence, this was incidental to his Honour's endeavour to ensure that the jury correctly understood the difficult concept of provocation in the criminal law. I do not believe his Honour introduced the concept of proportionality for the jury's consideration. The remarks complained about were unnecessary but they must be understood in the context of the entirety of his Honour's oral directions with respect to provocation, and more importantly, the detailed written directions which his Honour gave to the jury. 147It was further submitted that his Honour should have directed the jury that provocation is not ruled out by the formation of an intent to kill or do serious bodily harm. It is not apparent to me what is asserted to be the error identified by this submission. It was plain from his Honour's directions that the intention required for murder must be present (otherwise the need to consider provocation could not arise) the question being whether the Crown has negatived the suggestion that the applicant was relevantly provoked. 148The applicant further submitted that his Honour gave confusing, contradictory and wrong directions in respect of the issue of provocation: At SU 52 the trial judge directed that: "...if you get to the stage where we're considering provocation you must have reached the situation that you're satisfied beyond reasonable doubt that her account can be true"; AT SU 60 he directed the jury to the contrary: "... if you are considering this issue of provocation you must have rejected the possibility her account can be true". 149It was submitted that a direction in these terms foreclosed or ruled out provocation. At SU 64 his Honour continued with directions in terms of immediacy and a supposed distinction to be drawn between the facts and the situation if the applicant had immediately got into the vehicle and driven at the people in the laneway. He put this as a Crown argument which, it was submitted, seemed to be directed at her lack of self-control not continuing. His Honour said: "Another way the Crown could prove to you that the accused was not acting under provocation is to prove beyond reasonable doubt that if the accused was acting from a loss of provocation (reported as heard) that state was not induced by some conduct on the part of the deceased, but that, in this case, there seems to be little doubt if the accused did lose her self-control in the laneway that self-control was lost, that is, a lack of self-control was still occurring at the time of the killing, then that was a result of what happened in the laneway"... "So, that's a second way that the Crown could negative; provocation probably doesn't arise here. It's a matter for you." It was submitted that: (i) the direction was confusing and it was incorrect to tell the jury this whether by way of direction or comment. (ii) the addition of the rider that it was a matter for them was unlikely to remove the impression such remarks would have on them. (iii) it should have been accompanied by a direction that the question of whether the accused had regained her control was not a question to be answered by reference to the ordinary person. 150It is clear that, if correctly recorded, there are contradictions in his Honour's directions. There is also to my mind some lack of clarity with the directions at SU64 to which the applicant refers. However, having regard to the otherwise thorough and careful directions which his Honour gave together with the written directions I have no doubt that the slip, if it occurred, was of no consequence. 151As I understand his Honour's direction he was inviting the jury to consider whether if the applicant had lost her self control she was acting because of the provocative act of the deceased reminding the jury (correctly) that having regard to the evidence any provocation must have "happened in the laneway" and not subsequently. 152His Honour was entitled to tell the jury that provocation probably did not arise although that decision was a matter for the jury. To my mind any suggestion that the Crown case failed to prove that the applicant was not acting under provocation was untenable. I have already explained my reasons for this conclusion. 153Although I would grant leave to raise this ground of appeal the appeal on this ground should be rejected. Ground 7 154The applicant submitted that the trial judge's directions in relation to substantial impairment were erroneous. His Honour provided the jury with both written and oral directions on this issue. As with the directions in relation to provocation they must be read as a whole. His Honour, correctly as I understand the evidence, told the jury that the psychiatrists were in agreement - that the applicant suffered from an abnormality of mind - the issue being whether it had any bearing on the events of the night. 155It was submitted to this Court that his Honour's directions did not appropriately summarise the evidence of the psychiatrists. I have carefully considered that submission but to my mind his Honour's directions were appropriate. His Honour was obliged to discuss the evidence of the experts in order to assist the jury in understanding the relevant aspects of their evidence. His Honour did this. 156Particular complaint is made about various statements in the summing-up on this issue. In each case the applicant's counsel has picked out part of a sentence or paragraph without reference to the entirety of the directions on the particular aspect of the issue. 157The applicant further submitted that the trial judge gave a number of directions throughout the trial which alone or collectively were likely to divert the jury from a correct application of the law and failed to give other appropriate directions. 158It was submitted that his Honour effectively eliminated a proper consideration of the expert evidence that was to be called in relation to substantial impairment by telling the jury: "this is not a case where you need some assistance in understanding the detail. It is ordinary everyday human emotions and activity that is occurring here." 159Of course by this stage of the trial the evidence had been called. His Honour's comment was related to his statement that that he would not "go through the evidence in detail as this is not like a fraud case." Having regard to the evidence and the issues in the trial, there was no error in the course his Honour took. At one point his Honour told the jury that a defence of substantial impairment may seem odd. He told the jury that it was a secondary proposition only after the Crown has found her guilty of murder. He told the jury that government changes to the law were unlikely. 160The precise statement by his Honour about which complaint was made was: "Of course when you get, if you get, to the question of substantial impairment you must have found beyond reasonable doubt that otherwise the accused was guilty of the murder. That is a given." There is no error in that statement. 161It was further submitted that those directions were misleading and inaccurate, and unfair to the defence case. The first proposition advanced under this general submission was his Honour's statement with respect to Dr Allnutt, a psychiatrist called by the defence was that: "he thinks it is unlikely that at the time she was suffering the effects of mania as a result of bipolar disorder and he particularly comes to that view because of the degree of intoxication." 162The applicant did not include the entire passage from his Honour's summing-up in the submission. The entire passage was: "Dr Allnutt says in effect that on the balance of probabilities, because that's what we are talking about, and I've been through that with you, he thinks it is unlikely that at the time she was suffering the effects of mania as a result of bipolar disorder, and he particularly comes to that view because of the degree of intoxication, What in effect he says is that "I think it's more likely than not" that this dispute on this particular night was not the result of a sudden spike of mania, but that it was a result of intoxication upon her, upon her personality." 163There was no error in that passage. It is an accurate summary of Dr Allnutt's evidence. 164It was further submitted that his Honour unfairly contrasted the two experts, Dr Roberts and Dr Allnutt. In particular, it was submitted that after saying that "it's not being critical of Dr Roberts" his Honour stated "it had to be pointed out to Dr Roberts in fact he was being called to give evidence of substantial impairment... Therefore, Dr Roberts had to be reminded by both myself and counsel that we were really dealing with substantial impairment and not the effects of slow processing upon her driving skills or ability". 165Again, the whole of the relevant passage needs to be read. To my mind when that is done there was no error or unfairness to the applicant. 166During the course of this portion of his summing up it was submitted that his Honour summarised abnormality of mind and ability to control herself as: "In other words she was more impulsive. She did not think about the consequences because of the effect upon her of this manic state". It was submitted that this was not an accurate summation of Dr Roberts' evidence and put in this limited way invited the jury to reject the defence. 167I reject the submission. His Honour did not "summarise abnormality of mind and ability to control herself" in this way. Again, the whole of the relevant passage must be read. I am satisfied that it was an appropriate summary of the effect of Dr Roberts' evidence on this particular aspect. 168Criticism was made of his Honour's remarks during the summary of the expert evidence on abnormality of mind when he directed or remarked: "intoxication can impact upon people differently and it can make them more impulsive. It can make them more irascible ..." There is no problem with this statement. His Honour's comment was based on the evidence of the experts. 169It was submitted that his Honour gave the jury directions on the defence as being one provided by Parliament but not existing at common law. It was submitted that he went on to make pejorative remarks about its effect and directed: "you say to yourself well look I understand that technically she is guilty of murder but that is a terrible thing. She took away a young man's life in circumstances where she had no justification for doing so. She has caused enormous pain to a number of people". 170It was submitted that this passage contained an error. The applicant has again isolated part of the relevant direction. The quoted passage was followed with: ".... She did it with the intention to kill him or do him really serious injury and therefore technically she is guilty of murder. But in all of the circumstances of this case, taking into account her mental state, the degree to which you find that her mental state was not normal so that she was not in full control of herself or able to understand the facts by reason of this mental condition, that rather than be branded a murderer and be dealt with according to that offence she should be found guilty of manslaughter." 171I can discern no error in this statement. 172It was submitted that his Honour put the test of substantial impairment as an objective test when he said "so that she deviated from the normal range of control of an ordinary person in the community''. It was submitted that although his Honour's directions may have been directed to telling the jury (incorrectly) what was substantial, their likely effect was to create an artificial undefinable objective standard of a normal range of control. 173As it happens the entirety of the relevant passage was: "So you look at all of these matters, the whole of the evidence, you come to the view firstly, if you found that it is more likely than not that she was substantially impaired in her ability to control herself or understand the events surrounding her so that she deviated from the normal range of control of an ordinary person in the community as a result of this abnormality of mind, this mental disorder, and ask yourselves whether at the end of the day this should reduce the charge of murder to manslaughter." 174It is plain that his Honour did not put the test of substantial impairment as an objective one. 175The trial judge gave directions on intoxication. His Honour said: "You have to be able to say well I am satisfied it is more likely than not that this mental condition, this mania as described by Dr Roberts, was active and it was so powerful that it affected her notwithstanding the amount of alcohol and the effect of alcohol on her." It was submitted that the direction should have ceased at "affected her". It was submitted that the trial judge should have given the jury a full Cheatham (R v Cheatham [2002] NSWCCA 360 at [111]) type direction. 176I reject the submission. The directions were that the effects of alcohol had to be disregarded when considering the issue of substantial impairment. This was correct. There is no reason why the quoted phrase should have "ceased at 'affected her'". 177It was submitted that "since the decisions in Ryan (R v Ryan (1995) 90 A Crim R 191), Gieselmann (R v Gieselmann (Unreported, NSWCCA, 12 November 1996)) and Cheatham, where an accused contends that his/her perceptions of events were substantially impaired or that his/her ability to form a rational or sensible judgment as to whether his/her actions were right or wrong was substantially impaired or, as is usually the case, both, it is necessary for the judge to tell the jury that in determining whether the accused was suffering such abnormality of mind as substantially impaired his/her mental responsibility for the acts or omissions they must take into account the perceptions of events of the accused and the nature and extent of any impairment of her perceptions, her capacity to understand events and her ability or capacity to form a sensible judgment as to whether his/his actions were right or wrong. The relevant passages from Cheatham are at [111]: "Ryan at 195 makes the point that attention should be paid to the accused's perception of events, his ability to form a rational judgment as to whether his actions were right or wrong and his capacity to exercise willpower to control his physical actions in accordance with rational judgment. The judge told the jury this when he explained what abnormality of mind covered. Since the decisions in Ryan and Gieselmann where the accused contends that his perceptions of events were substantially impaired or that his ability to form a rational or sensible judgment as to whether his actions were right or wrong was substantially impaired or, as is usually the case, both, it is necessary for the judge to tell the jury that in determining whether the accused was suffering such abnormality of mind as substantially impaired his mental responsibility for the acts or omissions (in the present case the stabbings) they must take into account the perceptions of events of the accused and the nature and extent of any impairment of his perceptions, his capacity to understand events and his ability or capacity to form a sensible judgment as to whether his actions were right or wrong. I think that the directions in total did this. The judge took the view that it was unnecessary for him to summarise the facts in view of the thorough and lengthy addresses of counsel. The psychiatrists had themselves pointed up their areas of agreement and disagreement. The jury had the transcripts of the psychiatric evidence with them in the jury room. Juries often find it difficult to understand and deal with the question of diminished responsibility. They have to wrestle with the psychiatric evidence. It is difficult when experienced psychiatrists disagree. In the present case the disagreement extended to the weight and interpretation to be given to the appellant's actions and statements between 5 to 8 March 1998 (both inclusive). On any view it was a difficult question whether the accused's abnormality of mind was such as substantially impaired his mental responsibility. The judge identified the issues for the jury. He reminded them of the differing views of the psychiatrists and briefly summarised the ultimate difference. The judge was not required to do more. The law was sufficiently related to the facts. If experienced senior counsel who appeared for the appellant at the trial had thought that more needed to be said by way of explanation about the need to consider the appellant's perceptions of events and whether they were impaired and the appellant's ability to form a rational (or sensible) judgment as to whether his actions were wrong, senior counsel could have asked the judge to explain those matters further." (emphases added) 178Dr Roberts did not suggest that the applicant's "ability to form a rational or sensible judgment as to whether [her] actions were right or wrong was substantially impaired." There was thus no reason for his Honour to direct the jury in that regard. 179The following evidence was given by Dr Roberts: "HIS HONOUR Q: We're only dealing with substantial impairment on the basis that the jury have rejected her version. I'm not sure that I understand how this has got anything to do with substantial impairment? A. Because your Honour I would be of the view on psychiatric grounds that the slow processing speed is the substantial impairment with which she suffers. WASILENIA Q. Well if the slow processing speed is the substantial impairment with which she suffers what do you say would be her capacity to understand events? A. This would be impeded because she couldn't compute the information that was being presented to her in rapid sequence at that time. Q. What about her ability to control herself? A. If you can't compute the information that's been presented to you I think it would be very difficult to exercise judgment and exercise control. If we assume that there's an additional or two additional Axis 1 diagnosis such as attention deficit hyperactivity disorder and/or bipolar disorder, those would also be contributing factors to her ability to control herself and to deal with the situation." (emphases added). 180Accordingly, there was no issue as to what effects the undisputed abnormality of mind might have had. The issue was whether it did operate on the morning in question. This was made clear by his Honour. 181No issue was taken with the directions his Honour gave at the trial. I would refuse leave to raise this ground of appeal. Ground 8 182This ground of appeal is primarily concerned with the admission of evidence of the interview of the applicant at the police station after the incident. It was submitted that the applicant was both affected by alcohol and tired. It was further submitted that she was denied access to legal advice. 183For these reasons it was submitted that, despite the fact that no objection was taken, his Honour should have rejected the whole or at least parts of the record of interview. Particular concern is expressed about the statement by the applicant when she said "I can get emotional and fight." His Honour reminded the jury of this evidence in his summing-up saying that "the Crown submits the simple explanation for her behaviour is her intoxication and that she is an aggressive drunk. The Crown says in effect she says so much in her record of interview." 184Notwithstanding that objection was not taken, it was submitted that his Honour should have intervened in the interest of a fair trial for the applicant: Libke v The Queen (2007) 230 CLR 559 at 577 [35]; see also Shaw v The Queen (1952) 85 CLR 365 at 381; R v Chai [2002] NSWCCA 512. 185To my mind this ground of appeal is without substance and leave to raise it should be refused. 186It is not correct as the applicant submitted that "No access to a lawyer, or any form of legal advice was ever provided... The statement 'I, I really want to have a lawyer'" was made at A231. After the required questioning by an independent senior officer, the interview concluded at Q/A257. At the conclusion of page 26 it is noted "INTERVIEW RESUMED" and at p. 27 the time is noted as 1.54pm Saturday 7 June 2008. 187Detective Harmer (the officer in charge) gave evidence that between the first and second interviews the applicant contacted and spoke with her solicitor "Mr Proctor". Detective Harmer also spoke with him and was told that the applicant did not wish to attend a "crime-scene walkthrough" but was willing to partake in "any further interview if we needed" and a forensic procedure later in the day. During the interval the police obtained the CCTV footage. The applicant's responses to that, together with her remarks which are complained of, followed the provision of legal advice to the applicant. 188It was asserted that the trial judge, of his own motion, should have rejected "some or all of ... the Record of Interview" because it or they were inadmissible. Apart from a possible lack of sleep, the unchallenged evidence of Dr Allender was that by 1.54 pm on Saturday 7 June 2008 the applicant's level of blood alcohol reading would have been between 0.00 and 0.066 with the most likely level being 0.029 (grams of alcohol per one hundred millilitres of blood). Leaving that to one side there is nothing in the interview which could to my mind lead to the conclusion that in the circumstances of this case the admission of the evidence occasioned a miscarriage of justice. Clearly defence counsel did not believe that a successful objection could be formulated to its admission. 189It is not part of a trial judge's function to go through an interview, offered by the accused as his/her sole version of events (ie in the absence of giving evidence) and pick and choose between its contents in the absence of objection. 190Dr Allender was called by the Crown as an expert on the effects of alcohol and drugs. He was asked to and did comment on the CCTV footage of the passage of the applicant's vehicle with respect to the applicant's driving including whether it showed substantial impairment. He responded at T508 "not really. It struck me as somewhat predatory." No objection was taken to the question or the answer. 191It was submitted that although the balance of Dr Allender's evidence was admitted as expert evidence, which it was accepted he was qualified to give, he was not qualified to give this opinion. He was not an expert on driving, nor on conclusions that might be drawn from looking at a few seconds of CCTV footage. 192Sergeant Jenkins of the Crash Scene Investigation Unit gave evidence that with a blood alcohol reading of 0.145, persons are severely impaired in their driving ability. Despite there having been no objection raised by the Crown and the evidence being part of his report provided by the Crown to the defence the trial judge rejected it. 193It was submitted that absent an objection by the Crown the evidence should not have been rejected by the trial judge. It was submitted that there was an inexplicable contrast between how this evidence and that of the ERISP were dealt with. 194To my mind Dr Allender was not qualified to give the opinion and the question and answer should not have been allowed. However, objection was not taken. If it had been it would have inevitably highlighted the sensitivity of the issues and probably emphasised that the CCTV was damming of any prospect of the applicant being found not guilty of murder. The CCTV footage is powerful if not overwhelming evidence that the applicant having once driven at the deceased, reversed, and then returned to deliberately target him with the motor vehicle. Although it should not have been admitted, the evidence from the CCTV footage was so compelling that Dr Allender's evidence added little if anything to the conclusion which the jury must have drawn for themselves when viewing the film. 195His Honour rejected the evidence of Sergeant Jenkins, concluding that he was not qualified to express the opinion. Nothing has been put before this Court to indicate that his Honour's decision was not correct. Furthermore, Dr Allender gave evidence in which he clearly stated that he would have expected significant impairment of the applicant's condition "due to alcohol, and exacerbated by cannabis to have been present at the time of the incident." Ground 9 196It was submitted that the failure of counsel to object to the asserted error in the summing-up or to take appropriate objection was a result of the incompetent representation of the applicant by trial counsel denying her a fair chance of an acquittal. Apart from the fact that the asserted errors in the trial are without substance the essential inquiry is not whether trial counsel was incompetent but rather whether the asserted defect or irregularity has occasioned a miscarriage of justice: TKWJ v The Queen at [25]-[27]. 197As I have made plain I am not persuaded that by reason of any of the asserted failures to take objection either to the admission of evidence, or to raise issues with the summing-up, the applicant lost the fair chance of acquittal. I would refuse leave to raise this ground of appeal. The Proviso 198Even if his Honour had made an error of any significance I am entirely satisfied that there has been no substantial miscarriage of justice so that the Court should apply the proviso under s 6(l) Criminal Appeal Act 1912. 199The single most important piece of evidence was the CCTV footage. It showed the car, which the applicant was driving the wrong way in Lithgow Street, cross the kerb and move onto the driveway of an industrial building, heading directly toward the deceased and his companions. 200The deceased managed to jump out of the way after the car hit him in the legs. He then appeared to stand (with Stuart Taylor) behind the skip, bins which were situated just to the north of the driveway. Although not visible on the CCTV footage the applicant must have then reversed the car. Its headlights can be seen as the car straightened up on the right and remained stationary for a short period. 201At this time the deceased (and Stuart Taylor) were starting to walk together down Lithgow Street again. The car was then driven straight up over the grass verge and onto the footpath and again without deviation headed directly at the deceased, knocking him down onto the steps leading to the gymnasium and finally landing on top of him. 202The expert evidence (from the police officers) was to the effect that there was no mechanical defect or failure in the vehicle which could have been a contributing factor. Although the CCTV footage does not enable a viewer to see what was happening inside the car, the vehicle's movements do not suggest, as the applicant suggested, that her passenger grabbed the steering wheel or that her foot jammed on the accelerator. The car's movements were direct and continuous. There are two occasions when the vehicle was headed for the deceased. The inevitable conclusion is that the applicant intended to drive at the deceased and his companions. Officer Simon Parker, a collision reconstruction expert, calculated that the vehicle must have travelled across the footpath at a speed of 27 kilometres per hour. There was no indication of deceleration before the collision or any attempt to avoid the accident. The sequence of events captured in the CCTV footage allows only the conclusion that the applicant deliberately drove at the deceased. 203This evidence, combined with that of the events in Christie Lane shortly beforehand which, on any version other than the applicant's, caused her to react aggressively, undoubtedly lead to the conclusion that she at least intended to inflict grievous bodily harm on the deceased. On all the evidence presented, including that of the psychiatrists, the jury was entitled to find that the Crown had negatived provocation and the applicant had failed to establish "substantial impairment". I have reached the same conclusion.. Sentence 204The applicant seeks leave to raise six grounds of appeal in relation to her sentence. Ground one is best dealt with after the other grounds have been considered. Ground Two: The sentencing judge erred in finding that the offence was in the mid-range of offending. 205The sentencing judge was of the opinion that the offence committed by the applicant was in the mid-range of offending. His Honour said that he made this finding "despite the fact that I am prepared to sentence her on the basis of an intention to inflict grievous bodily harm rather than an intention to kill. It was an intention to inflict very serious injury and the risk of death was very high." 206His Honour said that the only matter of mitigation was the applicant's remorse. His Honour said that the applicant almost immediately regretted her actions and had continued thereafter to express her remorse. 207The applicant submitted that his Honour's finding that the offence was in the mid-range was inconsistent with the fact that his Honour found that the applicant did not intend to kill and that the offence was impulsive and was otherwise inconsistent with the circumstances of the offence. 208In the course of his remarks on sentence his Honour said when discussing the seriousness of the offence, that the typical case of murder coming before the Supreme Court is probably lower than mid range. He said that: "These tend to be domestic killings usually in the heat of the moment and often fuelled by alcohol. This offence seems to be more serious than that. Very few murders are planned although they may occur in the course of planned activities. Those where the killing is planned would almost inevitably be well above mid range." 209His Honour concluded that the offence was more serious than the typical cases because it was not an instantaneous reaction to the events in the lane. 210This finding of his Honour was criticised, it being submitted that as the events occurred in a short time frame his Honour's finding was not open. 211Other criticisms were made of his Honour's reasoning including his Honour's findings that; there was the use of a weapon of a dangerous kind; it involved a grave risk of injury or death to another person; there was little difference between an intention to kill and an intention to inflict grievous bodily harm; the applicant's past offending was all the result of alcohol was seen as an aggravating factor; his Honour ignored or rejected any effect of provocation. 212Before an offender may successfully challenge a finding as to the range within which an offence should be assessed it is necessary to establish that the finding which the sentencing judge made was not open to him. The evaluation of the seriousness of an offence is a matter for the sentencing judge and only if there is some error of principle can this Court intervene: House v The King (1936) HCA 40; 55 CLR 499 at 505. 213To my mind the submission which the applicant makes in support of this ground of appeal cannot be sustained. 214It is not necessary that there be an intention to kill and premeditation before an offence could be viewed as within the middle range of offending. 215I can discern no error in his Honour's finding that the offence was not an instantaneous reaction to events in the lane. After those events the applicant returned to the driver's seat, turned left the wrong way into a one way street and drove straight at the deceased. On this occasion he managed to jump out of the way of the car after it hit him on the leg. She then reversed the vehicle and after some time, and when the deceased was again walking down the footpath, she drove the car directly at him. 216In relation to the car being a weapon to my mind his Honour was entitled to make this finding. Many cases of murder involve the use of a weapon although this is not exclusively the case. In many cases the weapon is a household implement or a gun but not a motor vehicle. When used as a weapon a motor vehicle is properly described as a weapon of a "particularly dangerous kind." 217To my mind the finding that the offence was aggravated by the fact that it involved a grave risk of injury or death to another person was clearly open to his Honour. Jesse Horn gave evidence that the vehicle struck him on his right knee and caused him to be flipped over and land on the grass. His Honour said "he was fortunate not to be killed or more seriously injured." 218I am also satisfied that his Honour's finding that there was little or no provocation was open to him having regard to the factual findings which his Honour made. 219Accordingly, I am not persuaded that his Honour erred in the finding that the offence fell within the mid-range of offending. That finding was open. Ground 3: The sentencing judge erred in finding that the applicant being under the influence of alcohol did not diminish her culpability 220In his remarks on sentence the sentencing judge detailed the applicant's history of offending when intoxicated. His Honour accepted the evidence of Dr Allnutt that the applicant's mental disorder had nothing to do with her offending. She was not suffering from mania at the time. His Honour found however, that "she is simply aggressive when under the influence of alcohol. She was aware that whenever she is under the influence of alcohol she is likely to act in an impulsive, aggressive manner to people or things that irritate her." 221This Court has previously indicated that even in circumstances of offending against adult victims, voluntary intoxication rarely operates to mitigate penalty: R v GWM [2012] NSWCCA 240 [78]. 222With respect to provocation it is apparent that the jury were in no doubt that the applicant was not provoked for the purposes of a finding of murder. When sentencing, the trial judge was required to make findings of fact which were not inconsistent with the jury's verdict. His Honour did this by finding that there was no provocation, or if there was, it was of a minor nature and out of proportion to the consequences of the act and could not mitigate the offence. It is plain that this finding was open to his Honour. 223In the present case the sentencing judge found that the fact that the applicant was under the influence of alcohol was not related to the offence so as to diminish her culpability. The applicant submitted that this finding was not open as his Honour could not be satisfied that it was consistent with the jury's verdict. It was further submitted that the finding was incorrect and contradicted the weight of the evidence, the way the Crown presented its case, the established circumstances of the offence, and the trial judge's summing up to the jury. It was submitted that the Crown case was opened on the basis that the applicant was highly intoxicated at the time and the evidence indicated that alcohol was likely to have had an impact upon the applicant. The Crown relied upon her intoxication in submitting to the jury that the evidence demonstrated that when intoxicated the applicant became an aggressive drunk. 224It was submitted that the finding by his Honour ignored the opinion of Dr Allender who said that he believed that at the time of driving the applicant was under the combined influence of alcohol and cannabis, and her driving ability would have been substantially impaired. It was also submitted that the finding ignored the opinion of Dr Allnutt when he said that "the most significant factor was the disinhibiting effect of intoxication caused by the combined effects of alcohol, cannabis and benzodiazepines and her emotional response and the interaction that produced." 225It was further submitted that the applicant's statement to the police that she could become aggressive when drunk was irrelevant and that the only issue was the actual effect of alcohol upon her in the present case. It was submitted that she did not have any history of committing acts involving aggression while drunk with a motor vehicle. 226Finally, it was submitted that the applicant's intoxication should have been found to have been relevant and have been taken into account to mitigate the objective criminality of the offence and indicate that the conduct was impulsive and unplanned. It was further submitted that it was relevant to explain the context of the crime and informed the impulsive nature of the applicant's actions. 227I am not persuaded that the applicant's culpability in running down the deceased in the motor vehicle could be diminished by the fact that she committed the offence while intoxicated with a mid-range prescribed concentration of alcohol. His Honour's finding that the applicant's offending was not a consequence of a mental disorder but resulted from her tendency to aggression when under the influence of alcohol was clearly open. The applicant said as much. The circumstances of the offence confirmed the applicant's assessment of her own response to significant consumption of alcohol. Rather than being a mitigating factor, the applicant, being aware of the disinhibiting effect of alcohol upon her, nevertheless chose to drive while under the influence of alcohol and drugs. Rather than being a matter of mitigation it would have been open to his Honour to conclude that it was an aggravating feature. The finding that it did not diminish her culpability was clearly open and no error has been demonstrated. Ground 4: The sentencing judge erred in making no allowance for the offender's mental condition 228The sentencing judge rejected any direct association between the offender's mental disabilities and the commission of the offence. His Honour found that the applicant's mental disorder had nothing to do with her offending and in no way diminished her culpability. 229It was submitted that this finding was not open and that his Honour could not be satisfied that it was consistent with the jury's verdict. Furthermore, there were competing versions presented by the experts. It was submitted that his Honour reflected these differences in his instructions to the jury. 230There is a fundamental difficulty with the applicant's submissions. Although a trial juge is bound to find the facts relevant to the sentencing of an offender, the constraint is upon a finding of fact which is inconsistent with the jury's verdict. It is not the case that the finding must be one which the judge is certain reflects the jury's thinking. 231In relation to this ground of appeal it was necessary for the applicant to demonstrate error in the approach taken by the trial judge. The presence of a mental condition or disorder may bear upon the question of sentence: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. However, as Gleeson CJ observed in R v Engert (1995) 84 A Crim R 67 at 68, "it is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances." See the discussion of this issue by Johnson J in Beldon v R [2012] NSWCCA 194. 232The sentencing judge gave careful consideration to the impact of the applicant's mental illness when determining the appropriate sentence. He accepted the evidence of Dr Allnutt and found that her mental illness was not causally connected with the offending. His Honour was entitled to accept that evidence in preference to that of Dr Roberts where there was disagreement. His Honour found that there was no evidence before him that the applicant's mental disorder would make her time in prison more onerous and that it did not negate or diminish general deterrence to any significant degree. 233In these circumstances I am not persuaded that his Honour's approach to the issue of mental illness was erroneous. His Honour made findings which were clearly not inconsistent with the jury's verdict, were open and no error can be demonstrated. Ground 5: The sentencing judge erred in his approach to the standard non-parole period 234The applicant accepts that the sentencing judge approached the issue of the standard non-parole period in the manner approved by this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 which was found to be erroneous in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. It was further submitted that his Honour adopted a stepped approach commencing with an assessment as to whether the offence was in the mid range of objective seriousness. It was further submitted that he gave primacy or determinative significance to that matter and impermissibly took into account the characteristics of the applicant in his initial assessment of the offence being in the middle range of objective seriousness. 235Although the respondent accepts that his Honour approached the matter in a manner inconsistent with Muldrock, which was decided after his Honour passed sentence, I am not persuaded that his Honour impermissibly had regard to the characteristics of the offender in his initial assessment of the offence as being within the middle range of objective seriousness. His Honour carefully stated his reasons for finding the offence fell within the mid-range of offending. None of the matters that he referred to involved the subjective circumstances of the applicant. 236Notwithstanding that his Honour approached the sentencing exercise in accordance with Way, I am not persuaded that his Honour has otherwise imposed a sentence which was other than appropriate in all the circumstances. Ground 6: The sentencing judge erred in rejecting special circumstances. 237Before the sentencing judge, defence counsel submitted that special circumstances should be found on the basis that this was the applicant's first significant period of custody and because she had mental health and alcohol abuse issues. He did not suggest that the applicant's background and her remorse could give rise to such a finding. 238The sentencing judge declined to find special circumstances and indicated that in his view the applicant would have ample time on parole for her to receive whatever assistance she might require when released from custody. It was submitted that this was an error because his Honour had impermissibly confined the matters of relevance to a finding of special circumstances. 239The applicant submitted that the special circumstances relating to the applicant included her background, her mental disabilities, her remorse and the fact that she would be in custody for the first time. 240I am not persuaded that his Honour has erred. Although there may be many circumstances which could inform a finding of special circumstances this Court will be slow to review the findings of a sentencing judge on this issue. Where, as in the present case, the foundation which is advanced for a finding of special circumstances in this Court was not advanced in the court below the likelihood of this Court intervening is remote: Aslett v R [2012] NSWCCA 235. 241Although the background of an applicant and any mental disability may inform a finding of special circumstances, issues of remorse would rarely inform a finding of special circumstances. Remorse may be reflected in the sentence which the court imposes but will rarely be a special circumstance. With respect to the submission that the first time in custody is a special circumstance, this issue has been recently considered on a number of occasions. In Collier v R [2012] NSWCCA 213, I said: "It was submitted to this Court that the applicant, being almost 50 years of age and facing her first time in custody with good prospects of rehabilitation, should have been given the benefit of a finding of special circumstances. Inherent in this submission appears to be a misunderstanding of the role of special circumstances when sentencing. A finding of special circumstances is appropriate and relevant to a decision by a sentencing judge as to whether to depart from the statutory ratio between the non-parole period and the overall sentence. The authorities are replete with findings by sentencing judges and by this Court of special circumstances. When an offender's history of offending or personal circumstances indicate that he or she would benefit from an extended period of supervision within the community a finding of special circumstances may be appropriate. For my part, as I said in R v Clark [2009] NSWCCA 49 at [12], I have considerable reservations about whether the fact that a person will be in custody for the first time is capable of constituting special circumstances: see also R v Kama [2000] NSWCCA 23; (2000) 110 A Crim 47 at [10]. The fact that a person has no previous criminal record and, accordingly, has not previously been incarcerated is a matter relevant to the total sentence and non-parole period. However, it is unlikely to be a circumstance warranting further leniency to an offender by a reduction in the term of the non-parole period: R v Fidow [2004] NSWCCA 172 at [18] (Spigelman CJ). Many persons who are sentenced will receive a sentence of imprisonment for the first time. That fact alone is unlikely to justify a finding that the offender's circumstances are special." 242Whether or not to make a finding of special circumstances was entirely the province of the sentencing judge. Where as in this case a lengthy period on parole is inevitable, a finding that special circumstances could justify a reduction in the non-parole period is unlikely. His Honour did not err by rejecting a finding of special circumstances. Ground 1: The sentence was unduly harsh and severe 243As I understand this ground it is more appropriately expressed as a submission that the sentence was manifestly excessive. The capacity for this Court to respond to such a submission is limited. It is not sufficient that this Court may be of the view it would itself have imposed a different sentence. Intervention is only warranted if error can be demonstrated. 244I have previously discussed the circumstances of the offence and the personal circumstances of the applicant. The taking of a young person's life by deliberately running him down with a motor vehicle which the applicant was driving whilst significantly intoxicated and under the influence of drugs required a significant sentence. Having regard to the fact that the Parliament has provided that the offence of murder caries a maximum penalty of life imprisonment the sentence which his Honour imposed was entirely within the range available to him. I am not persuaded that there is any error in the manner in which his Honour approached the sentence or that the sentence was relevantly excessive. 245Although I would grant leave to appeal against sentence I would dismiss the appeal. Orders

1. Refuse leave to appeal the conviction except for Ground 6.
2. Grant leave to raise Ground 6 of the appeal but dismiss that ground.
3. Grant leave to appeal against sentence and dismiss that appeal. 246LATHAM J: I agree with McClellan CJ at CL. 247ADAMSON J: I agree with McClellan CJ at CL.

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