Williams v R

Was the applicant driving at the relevant time? 8The charge of dangerous driving occasioning death, of which the applicant was convicted, required that the applicant was driving the vehicle "at the time of the impact" which occasioned the death. The issue which required careful direction to the jury was whether the applicant was driving at the time of impact, in circumstances where the deceased, who had been a front seat passenger in the car, had grabbed the steering wheel one or two seconds before the impact occurred. 9The prosecution case was based, at least in part, on the following propositions: (a) it was the erratic and dangerous driving of the applicant, causing a loss of control of the vehicle, which led the deceased to intervene to regain control of the vehicle; (b) although the applicant may have lost control in the sense that her actions were ineffective, she nevertheless was in a position at all times to exercise control and management of the vehicle, and (c) even when the deceased grabbed the steering wheel she remained able to control the vehicle by operating the brakes and accelerator. 10The applicant contended that even if, due to the influence of alcohol, she was driving erratically and therefore dangerously, the deceased intervened, thereby taking control of the vehicle from the applicant, and the impact occurred as a result of the deceased's intervention. If the deceased's intervention prevented the applicant exercising control and management of the vehicle and thus caused the vehicle to be steered into the pole, the applicant would be not guilty. 11The jury rejected the separate defence that the death was "not in any way attributable" to the influence of alcohol on the applicant: s 52A(8). That finding was consistent with acceptance of proposition (a). It would also have been inconsistent with any suggestion that the deceased's intervention was based on a mistaken belief, because the applicant was in fact exercising effective control over the movement of the vehicle. 12In this context, the phrase "control and management" has a potential ambiguity. Where no person other than the person in the driver's seat is attempting to exercise control of the vehicle, the driver's attempt may be ineffective and the vehicle may in fact be "out of" control. The person does not thereby cease to be "the driver", nor cease to be "driving" the vehicle: see Jiminez v The Queen [1992] HCA 14; 173 CLR 572 at 577-578, set out by Adams J at [23] below. 13The analysis may be different where it is said that the person in the driver's seat is not in control because of a circumstance for which he or she is not responsible, such as a mechanical defect in the vehicle, an unforeseeable medical affliction of the driver or the intervention of a third party. However, these events are not of the same class and it is sufficient to focus on the last. If the intervention of the passenger is a natural and foreseeable consequence of the dangerous driving, the imposition of that act between the dangerous driving and the impact, like the period of sleep in Jiminez, does not in a practical sense break the causal link between the dangerous driving and the impact. That may be so whether or not the act of intervention left the person in the driver's seat with no power to control the vehicle or a limited power by using (most relevantly) the brakes. 14The matter was left to the jury in the present case on the basis that, if, at the time of impact, the applicant had no power to control the movement of the vehicle in any way, the jury should acquit. Arguably that direction was unduly favourable to the applicant. In any event, I agree with R A Hulme J that the judge's directions were adequate in this respect. 15The principal specific complaint was that no direction was given as to the need for the acts of the applicant to be "conscious and voluntary". It may be accepted that no direction was given in those terms, but that was because there was no putative loss of consciousness, nor involuntary act of the applicant. The act of the deceased was not to be characterised as an involuntary act of the applicant. 16It is true that Judge Payne gave directions in terms of the need to be satisfied that the applicant was "the driver" at the time of the impact, but that conformed to the statutory language. Usually the "driver" will be the person "driving the vehicle", unless the person's actions were not conscious and voluntary. That exception not being engaged, the direction could aptly focus on "the driver" or "driving", or both. 17ADAMS J: Introduction I have had the advantage of reading the judgment of R A Hulme J in draft. I agree with his Honour as to Grounds 2, 3 and 4. With respect, however, I am unable to agree with his Honour as to Ground 1 which, in my view, should be upheld and a new trial ordered. Before dealing with the substance of this ground, I wish to discuss the significance of the applicant's absconding before completion of the trial. The position of counsel 18During her cross-examination, the applicant indicated in emphatic language that she would not answer any further questions. The court adjourned. During the adjournment she conferred with her solicitor. Mr Carty, her counsel, informed the court that the applicant told the solicitor that "she can't continue, she's had enough, she needs a doctor ... [and if she does not see a doctor] she's going to kill herself". The trial was further adjourned to enable counsel to speak with the applicant and her mother. On resumption, Mr Carty sought an adjournment to (this being Thursday) the following Tuesday so she could seek medical assistance. The luncheon adjournment was imminent, so the learned trial judge adjourned the trial to 2.15pm to permit the applicant to attend a doctor, making it a condition of her bail that she was to remain in the company of her mother. Her solicitor also proposed to accompany her. When the court reconvened at 2.25, the applicant did not appear. Mr Carty informed the court that the applicant did not attend the Aboriginal Medical Service and had "effectively run off". The trial judge ordered the issue of an arrest warrant and continued with the trial. There was no further evidence to be taken and the next substantive matter was addresses. 19It cannot be doubted that the applicant's conduct necessarily terminated the retainers both of her solicitor and her counsel. It was reasonable - and, indeed, quite proper for Mr Carty to have continued in the role of amicus curiae (though he was by no means bound to have done so) in respect of the appropriate disposition of the proceedings, in particular whether the jury should be discharged or the trial continue in the absence of the applicant. When the application to discharge the jury was refused, her Honour asked Mr Carty whether he had submissions to make on the directions. This enlistment of his assistance in this regard was also within his role as amicus. However, he also addressed the jury. He could not do so as the applicant's counsel. In my opinion, the fact that he was no longer her counsel but was appearing as amicus curiae should have been made clear to the jury. By not doing so, they were left to suppose that the applicant was still, through her counsel though personally absent, participating in the trial. This was not the case. It is of course commonplace for the jury not to be informed of matters that are not germane to their consideration of an accused's guilt or otherwise but it is quite another for them, in effect, to be misinformed about an important aspect of the trial. To my mind, the status of counsel is such an important matter. It follows also that, when Mr Carty made submissions as to the directions that had been or should be made to the jury, he was not doing so as the applicant's counsel in any sense, but as amicus curiae. 20This issue was not the subject of any ground of appeal and, quite properly, not addressed by either counsel. However, it is an important issue that, to my mind, warranted mention. I hasten to add that what occurred did not prejudice the applicant and, of course, did not lead to a miscarriage of justice. There is, however, one presently relevant consequence that results from the status of counsel, which is that Rule 4 does not apply to his failure to seek any particular direction. No doubt, Mr Carty made such submissions as he thought necessary or desirable in respect of the judge's directions and, as amicus, it was right that he should assist the judge as best he could. However, he was not appearing for the applicant and the basis for Rule 4, in effect, that a party is bound by the manner in which the case is conducted by his or her counsel, cannot apply when counsel in question is not that of the party. Was the applicant the driver at the time of the impact? 21It is unnecessary for me to set out the material facts, which have been comprehensively narrated in the judgment of R A Hulme J and which I gratefully adopt. 22The fact that the accused must be driving the vehicle at the time of impact is essential by virtue of the language of s 52A of the Crimes Act 1900, which creates the offence. What might be called the culpable facts - being under the influence of intoxicating liquor or a drug, driving at a dangerous speed or in a dangerous manner - are all specified as having to occur at the time of the impact which caused either death or grievous bodily harm. 23"Driving" is a term in common parlance. Accordingly, whether any conduct in relation to a vehicle amounts to driving is a question of fact. In Jiminez v R [1992] HCA 14; (1992) 173 CLR 572, the only feature of the applicant's driving alleged to be within s 52A is that he drove the car whilst tired and drowsy and had fallen asleep. The majority (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) said (omitting references) - 9. If the applicant did fall asleep, even momentarily, it is clear that while he was asleep his actions were not conscious or voluntary (an act committed while unconscious is necessarily involuntary) and he could not be criminally responsible for driving the car in a manner dangerous to the public. The offence of culpable driving is, in this respect, no different to any other offence and requires the driving, which is part of the offence, to be a conscious and voluntary act ... 10. Upon the evidence, it appears that there was a short period of time after the applicant fell asleep and before the impact during which the applicant awoke and attempted to regain control of the car. It was not suggested that, while he was attempting to regain control, the applicant was driving dangerously. Drivers are often confronted with an emergency which requires them to take steps to avoid an accident. Even if the evasive action fails to avoid the accident it does not necessarily amount to driving in a dangerous manner ... 11. The offence of culpable driving as it applies in the present case requires a motor vehicle to have been driven in a manner dangerous to the public at the time of the impact which occasioned death. Even if the motor vehicle was not being driven dangerously at the precise moment of impact, a preceding period of driving in a dangerous manner may be so nearly contemporaneous with the impact as to satisfy this element of the offence. Contemporaneity is a question for the jury. 12. In the South Australian case of Kroon (1990) 52 A Crim R 15, at p 18, King C.J. observed that an offence such as culpable driving requires the relevant driving to have been voluntary and that driving while asleep does not constitute a voluntary act. Thus, he said, "a driver cannot be convicted of causing death or bodily injury by dangerous driving in respect of a period during which the driver is asleep". But he went on to say ibid, at pp 18-19 - "Every act of falling asleep at the wheel is preceded by a period during which the driver is driving while awake and therefore, assuming the absence of involuntariness arising from other causes, responsible for his actions. If a driver who knows or ought to know that there is a significant risk of falling asleep at the wheel, continues to drive the vehicle, he is plainly driving without due care and may be driving in a manner dangerous to the public. If the driver does fall asleep and death or bodily injury results, the driving prior to the falling asleep is sufficiently contemporaneous with the death or bodily injury ... to be regarded as the cause of the death or bodily injury. ... The cases must be rare in which a driver who falls asleep can be exonerated of driving without due care at least, in the moments preceding sleep." As King C.J. recognizes, where the question is whether a driver who falls asleep at the wheel is guilty of driving in a manner dangerous to the public, the relevant period of driving is that which immediately precedes his falling asleep. Not only must the period be sufficiently contemporaneous with the time of impact to satisfy the requirement of s.52A but the driving during that period must be, in a practical sense, the cause of the impact and the death. The relevant period cannot be that during which the driver was asleep because during that time his actions were not conscious or voluntary. And, for the reasons which we have given, if the driver's actions upon waking up amount to no more than an attempt to avoid an accident, it cannot be that period of driving. 13. The manner of driving encompasses "all matters connected with the management and control of a car by a driver when it is being driven" R. v. Coventry (1938) 59 CLR, at p 639. For the driving to be dangerous for the purposes of s.52A there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention ... Although a course of conduct is involved it need not take place over any considerable period ... Nor need the conduct manifest itself in the physical behaviour of the vehicle. If the driver is in a condition while driving which makes the mere fact of his driving a real danger to the public, including the occupants of the motor vehicle, then his driving in that condition constitutes driving in a manner dangerous to the public. In the same way, driving a motor vehicle in a seriously defective condition may constitute driving in a manner dangerous to the public ... even though the defect does not manifest itself until such time as the vehicle is out of the control of the driver. But it should be emphasized, and it must always be brought to the attention of the jury, that the condition of a driver must amount to something other than a lack of due care ... before it can support a finding of driving in a manner dangerous to the public. Driving in that condition must constitute a real danger to the public. It will follow, as it seems to me, that two elements are necessary before the statutory requirement is satisfied: the first is that the accused must be physically in control of the vehicle; and the second is that, at the material time (which might be some time before impact but sufficiently contemporaneous with it as to satisfy the condition that it be "at the time of impact"), the accused's driving is conscious or voluntary. 24Jiminez was concerned with the manner of the appellant's driving and whether that driving at the time of impact was within the proscription. As is clear from para 9 set out above, the question was not whether the appellant was driving. Plainly he was. The question was whether that driving was a conscious and voluntary act. If he was asleep the answer was in the negative. If he was awake and trying to regain control, he was not driving dangerously at that point. The reference to temporality was made in that context, namely where a driver's dangerous driving has brought about an immediate danger of impact but, at the time of impact, the driver is attempting to avoid the result which his or her dangerous driving has brought about. In Jiminez, the driving whilst drowsy was the dangerous driving which led to sleep and thus the loss of control which the appellant was attempting to correct at the time of impact. Another example is speeding around a corner, leading to the loss of control of the vehicle and an impact whilst the driver is attempting to regain control. At the time of impact, the driver is not driving dangerously but the connexion between the dangerous driving and the impact is so direct and immediate as to render the driver liable under the section. It should be noted that where the dangerous driving arises, not from the manner of driving but from the intoxication of the driver, the mere fact that the driver was attempting to regain control would not, of course, be material. 25In this case, even if the applicant was attempting to regain control, if she was driving at the time of impact, her intoxication meant that she had committed the offence. However, the veering of the vehicle into the pole which caused the impact was not the act of the applicant at all but that of the deceased. This is not analogous to the sleeping driver who suddenly wakes up and attempts to regain control. The mere fact, if it be the fact, that the deceased decided to take control of the steering because he feared that the applicant would herself cause an accident does not make his steering into the pole any more the act of the applicant. It may readily be accepted that the vehicle was being driven dangerously in a general sense when the deceased took over the steering but it could not be said that the applicant had lost control at that point. The car was proceeding as she was directing it. If it were out of control, say skidding off the road, and the deceased was attempting to regain control before the impact, the connexion between the driving which led to the loss of control and the impact with the pole could have been regarded as such as to conclude that the applicant was driving dangerously at the time of impact. But there is no evidence that would support this case. 26If the time frame were such that the applicant might have thought to apply the brakes and decided not to do so, then she might have fairly been regarded as being in control of the forward movement of the car. The evidence of Ms Allen that the applicant put her foot on the accelerator in mistake for the brake - which was necessarily suppositious, especially as she said she did not notice anything about the speed - must be considered with great caution in light of the objective evidence about the time that would have been taken from the commencement of the veering to impact. Furthermore, it is evident that, as the passenger, she could not possibly have seen the applicant do this. In this respect, the applicant's evidence was that she attempted to put her foot on the brake but it happened so quickly that she was not sure whether she had put her foot on the brake or the accelerator. With respect, I do not accept that the applicant's evidence amounted to a concession that she was able, in the circumstances, to control the vehicle by use of the brake. Indeed, it was to the opposite effect. If the evidence permitted the conclusion that, although there was sufficient time to have applied the brake and the applicant chose not to do so, then the conclusion that the applicant was relevantly in control of the vehicle might have conceivably been open (though I doubt it). Otherwise, the ability to touch the brake was as relevant as her ability to touch the radio. 27Even assuming that, although the applicant did not have control of the steering, she was nevertheless driving if she were able to apply the brake or the accelerator, the crucial question was - in the circumstances here - whether the momentary ability to do so amounted to control of the vehicle. The question of whether the applicant was driving could not be answered simply by asking whether she could apply the brake and the accelerator. The judge directed the jury (the paragraphs are mine, for reference) - [1] A person is the driver of a vehicle if she has management and control over its movement, whether by use of the accelerator or gears, brake or steering wheel, or simply by releasing the brakes and allowing gravity to operate. The essence of driving is the use of the driver's controls to direct the movement of the vehicle. [2] ... The Crown says - and it is the position - that you are entitled to and should look at the manner of driving up to the deceased taking hold of the steering wheel. If you find factually beyond reasonable doubt that he only took hold of it to correct a situation because of her lack of control, she is still the driver, as she still has management and control over its movements. [Emphasis added.] [3] The issue, though, ladies and gentlemen of the jury, in this case is: are your satisfied beyond reasonable doubt that at the time of the grabbing of the wheel and at the time of impact she still had management and control of the vehicle ... The judge then repeated the Crown case (which was endorsed as correct by the italicised phrase) and added - [4] ... The issue ... put in a particular way, is are you satisfied beyond reasonable doubt that she was in fact still the driver and had the management and control at the time of the grabbing of the wheel and at the time of impact. If there was a reasonable possibility that what the deceased did meant that she was no longer the driver, that she did not have management and control, you would find her not guilty. [5] Put another way, you would have to be satisfied beyond reasonable doubt that she was still the driver despite the grabbing of the wheel. If there is a reasonable possibility, to repeat, what the deceased did meant she was no longer the driver, that she did not have management and control, you would have to find her not guilty of both offences. [6] Further, if there is a reasonable possibility that the accused had ceased to have management or control over the movement of the motor vehicle, then you would conclude she was not the driver in a legal sense and she would have to be acquitted [7] If you accept as a reasonable possibility that the deceased grabbed the wheel and pulled it to the left and denied her the management and control of the vehicle, she would not be the driver and she would have to be found not guilty of both offences. [8] ... [The] Crown says ... you are entitled and should look, the Crown says, at the manner of driving up to [the deceased] taking hold of the steering wheel. If you find factually he only took hold of it to correct a situation because of lack of control, the [applicant] is still, the Crown says, the driver as long as she still has management and control over its movement. [9] In short then - and you must take account of all the directions I have given in respect of this aspect of the case - even if the deceased grabbed the wheel for some reason, the issue is are you satisfied beyond reasonable doubt by the Crown, the applicant still had management and control of the vehicle at that time and up to the time of impact. 28There appeared to be two bases upon which the jury were able to hold that the applicant was driving the vehicle at the point of impact. The first (see para [2] above) was that, if the deceased took hold of the steering wheel because the applicant had lost control - that is, I think, was driving in a dangerous manner, as distinct from the vehicle being out of control - then she was still the driver at the point of impact. (However, as I have pointed out above, although the applicant's control of the vehicle was to steer it erratically, there was no evidence that she had lost control.) This argument focussed on the reason for which the deceased grabbed the wheel. The same argument was put in para [8] although, somewhat more ambiguously. This way of considering the case was stated by the judge, in effect, as being correct. In my respectful opinion, it could not have been correct. The reason for which the deceased grabbed the wheel could not affect the question whether the applicant still had control - ie, was driving or put more correctly, whether the course of the vehicle was her act - at the time of impact. If the applicant was already driving toward the pole and the deceased grabbed the steering wheel in an attempt, unsuccessfully, to avoid it, that would (applying the reasoning in Jiminez) direct attention to the immediately previous dangerous driving which could be regarded as having continued to the time of impact. However, this was never the case put by the Crown and was not open on the evidence. The second basis for concluding that the applicant was the driver of the vehicle at the time of impact was that, although she could not steer, she would still be the driver if she used (or could use) the brake and accelerator. The trial judge directed the jury, in effect, that this was sufficient (see para [1]). Repetition of the requirement that the applicant must be acquitted if there was a reasonable doubt about her being the driver at the time of impact did not in any sense qualify the direction as to what being a driver (or having "management and control") entailed. However, as I have mentioned above, this access needed to be relevant in the sense that she had an opportunity to apply the brake in a way that would have affected the driving, in short, gave her control of the vehicle. If she had that opportunity and did not apply the brake, then this amounted to driving, or having management and control in the sense explained in para [1]. In my respectful opinion, it was essential to place this possibility in the context of the time between the grabbing of the wheel and the impact. That it was momentarily possible could not mean that she had control and management of the vehicle. The two modes put to the jury of determining the applicant's guilt were, with respect, significantly in error. 29Mr Carty, submitted that it would be incorrect to direct the jury that, if it thought that the deceased was justified in grabbing the wheel, the applicant would remain the driver even though management and control was taken from her. Mr Carty did not take issue with the direction that a person is the driver if he or she had management and control over its movement, whether by the use of the accelerator or gears, brake or steering wheel. However, as I have pointed out above, it was essential that this be considered in the context of the facts here, namely whether she had opportunity to control the vehicle after the deceased grabbed the steering wheel. Nor did counsel seek a redirection as to whether the driving at the time of impact was the act of the applicant. Although these points were not made by counsel, in my view Rule 4 of the Criminal Appeal Rules does not apply for the reasons given above. Even if it did, the misdirections are in my view so fundamental as to require a grant of leave to raise them on appeal. 30R A HULME J: Ms Michelle Williams was found guilty on 7 April 2010 of two offences following a trial before her Honour Judge Payne and a jury in the District Court at Tamworth. The offences were of aggravated dangerous driving occasioning death and aggravated dangerous driving occasioning grievous bodily harm. The circumstance of aggravation in each case was that she was driving with the prescribed concentration of alcohol present in her blood. 31The offences are contrary to s 52A(2) and (4) of the Crimes Act 1900 (NSW) and the prescribed maximum penalties are imprisonment for 14 years and 11 years respectively. 32Ms Williams absconded during the trial, and that is the subject of one of the grounds of appeal. She was subsequently apprehended on 10 June 2011 and was charged with an offence of failing to appear in accordance with a bail undertaking, contrary to s 51(2) of the Bail Act 1978 (NSW). She pleaded guilty to that offence. 33For the offence against the Bail Act her Honour imposed a fixed term of imprisonment of eight months specified to commence on 10 June 2011. For the grievous bodily harm offence there was a sentence of 3 years imprisonment, with a non-parole of 18 months commencing on 10 December 2011. For the offence involving death there was a sentence of 6 years with a non-parole period of 3 years commencing 10 June 2013. 34The total effective sentence imposed was one of 8 years with a fixed term/non-parole component of 5 years. 35Ms Williams now applies for leave to appeal against both conviction and sentence.

Facts 36The offences occurred on Sunday 10 August 2008. The applicant went to a house in Warral Road, Tamworth shortly after midday. She consumed alcohol there with Ms Cecilee Allan throughout the afternoon and into the evening when Mr Darren Reid arrived. 37At about 9.30pm there was a need to get more soft drink to mix with the bourbon that was being consumed. The applicant drove her car, with Mr Reid sitting in the front and Ms Allan in the rear, to a block of flats in Green Street. Mr Reid alighted and procured the soft drink. 38A collision occurred on the return journey. The applicant's car left the roadway and collided with a power pole. It was later revealed that she had a blood alcohol concentration of 0.282mg/100ml. 39Ambulance and police officers were called and promptly attended the scene. Once extricated from the vehicle Mr Reid was taken to hospital where he was placed on life support. Regrettably it became necessary to turn off his life support and he died on 13 August 2008. 40Ms Allan suffered significant abdominal injuries. She underwent a laparotomy. Postoperatively, she was in a serious but stable condition. She was discharged from intensive care on 15 August 2008. She required two operations. The first was to remove her injured bowel and the second six months later was to reconstruct the bowel. There was evidence in the trial that the injuries sustained by Ms Allan "represented serious life threatening trauma requiring urgent surgery and intensive care and nutritional support". There was also evidence that following the second surgery she would be "relatively well ... although given the extent of bowel removal she may require nutritional supplementation and is at risk of adhesive bowel obstruction in the future". 41Four women who were walking along the roadway in Green Street at the time of the collision gave evidence. It varied in detail to some extent but was generally to the effect that they became aware of a car approaching from behind them. They were concerned about its speed and path of travel to the extent that they thought it necessary to immediately get off the road and onto the nature strip. They described the car as weaving or swerving to and from the incorrect side of the road a number of times until it went up onto the nature strip on the left hand side and collided with the power pole. Ms Allan's evidence was to similar effect. 42Both Ms Allan and the applicant gave evidence that Mr Reid had grabbed the steering wheel and turned it to the left just before the car left the roadway. In sentencing the applicant, the judge described this as an act of "self-preservation". 43The applicant gave evidence that she was driving normally, despite her high blood alcohol concentration. She denied driving in the manner described by the four pedestrians and Ms Allan. As she was driving up Green Street she looked at her speedometer and saw she was travelling at about 54 km/h (the applicable speed limit was 50 km/h). She said Mr Reid grabbed at the steering wheel and she remonstrated with him and he pulled his hand away. She continued driving up the road and he did it again. She said: Q. Then what happened? A. We got up the road a bit and we got up the road like, I don't know about 150 metres probably, yep and we was driving along and next minute he just like jumped across and grabbed the steering wheel and just went jumped across on top of me like that and just like pulled the car into, smashed the car into the pole. ... Q. What did you do when he grabbed the wheel? A. Like I remember saying "Fuck off." Yeah and that was it. You know that's all that I can remember now. ... Q. Now did you try and pull the steering wheel back? A. Just no. Q. Why not? A. Because he just like grabbed it, just like, no I didn't have a chance to. Q. You didn't have a chance to? A. No. Q. And what about, did you try and do anything to avoid the collision or could you do anything to avoid the collision? A. No its just come across, it just like happened. 44This was to be contrasted with the evidence of Ms Allan: Q. You said that, Darren took his seatbelt off and then he grabbed the wheel? A. Yes. Q. What exactly did you see him doing? A. I think he was trying to straighten it. Q. Well he took the seatbelt off, you became aware of that? A. Yes. Q. And then? A. And then we've just - he's grabbed it the wrong way and then we spun and then I don't know and then we went out of control. ... Q. Did you see any part of Darren's body make contact with Michelle's body? A. I think he touched her arm. Q. You think he touched her arm with which part of his body? A. This his arm. Like, cause she's had her hands doing the wheel and I think as he went across he's just touched her arm like that. ... Q. Did you see Michelle doing anything when Darren leant across and grabbed the wheel? A. Like she said, I think she said "Fucking let go" or something. ... Q. She's still got hold of the steering wheel? A. Yes. She never let go of the steering wheel. ... Q. When he grabbed the wheel did the car change direction? A. Yes. Q. Which way did it go then? A. We hit the driveway or something, cause we hit something really hard and then we spun for a while and then I just remember hitting something really hard and it must've been the pole. And then I couldn't breathe. ... Q. Did you notice anything about the speed of the vehicle after Darren grabbed the wheel? A. No cause it was all - we was all freaking out, all three of us and he put his - and then she put her foot down on the accelerator instead of the brake which she didn't mean - she meant to put her foot on the brake. She just lost control of the car and then we just spun and that's what I mean by spinning and I don't know where we spun, but I remember like it felt like dirt, so that must've been the front lawn. (emphasis added) Ms Allan was challenged in cross-examination about the last answer above: Q. And you wouldn't know whether she put her foot on the accelerator or the brake or whether she was able to put her-- A. No sorry yes I do-- Q. Foot on the accelerator or the brake, I suggest? A. I do because the car started revving, because when you changed gears in an automatic you can hear it when it's being - when you flatten your foot on the accelerator you can hear it revving over so it can change the gears, like the revs are being over, too far over, you know what I mean, she was over revving it, for too over revved to change gears. Do you know what I mean? Q. All right, well- A. She got her revs up too fast. Q. Well you said-- A. So it revved out. Q. You said that she tried to hit the brake but hit the accelerator? A. Yes. Q. So why - on what basis do you tell the court on oath that she tried to hit the brake but hit the accelerator? A. Because she was freaked out, I could tell she wanted to hit the brake. Q. How could you tell? A. Because the way she put her foot flat on the accelerator. Q. Well did you see her put her foot flat on the accelerator? A. No but I heard the car-- Q. You couldn't have seen that, could you? A. No-- Q. You couldn't have seen her feet at all? A. No I didn't see it. I didn't see it. Q. Because even if you were seated in the middle of the back seat your view was obscured by Darren Reid who leant right across, that's right isn't it? A. I don't know. I didn't see her do it but I know that - I just know because I was there-- Q. I suggest to you that the vehicle did not accelerate when the vehicle took a sharp turn to the left? A. Well how come we went faster into the pole. Q. Well I'm suggesting to you that the speed-- A. We wasn't going 60 into a pole, we went faster into the pole. 45In cross-examination, the applicant said she had both hands on the wheel when Mr Reid grabbed the steering wheel; she tried to gain control of the car, but she could not do anything (AB 526). She attempted to put her foot on the brake, but she was not sure if she hit the accelerator instead because "it happened that quick" (AB 527). 46There was expert evidence to the effect that the applicant's driving had left no marks on the roadway in Green Street up until tyre ("yaw") marks commencing at a point some 16 metres from the power pole. It was accepted by both sides that this indicated the approximate point where the car suddenly turned to the left in the direction of the pole. The speed of the car was estimated to be "not less than 59 kph at the time of losing control" (according to Senior Constable Clout), or between 52 and 61 kph (according to an expert called in the defence case). Accordingly, the time that elapsed from when Mr Reid grabbed at the steering wheel to the point of impact was about one second.

Grounds of appeal 47There are four grounds of appeal against conviction. Leave pursuant to Rule 4 of the Criminal Appeal Rules (NSW) is required in respect of the first, third and fourth grounds as they concern matters which were not the subject of objection at the trial. Leave is required in respect of ground two as it does not involve a "question of law alone": s 5(1) of the Criminal Appeal Act 1912 (NSW). The grounds are: Ground 1. The presiding judge misdirected the jury with respect to the issue of 'driver'. Ground 2. The presiding judge erred in ordering that the trial proceed in the absence of the accused. Ground 3. The presiding judge erred in putting the full evidence of Dr Judith Perl to the jury. Ground 4. The presiding judge misdirected the jury in relation to the role of the Crown Prosecutor.

Ground 1 (misdirection with respect to the issue of "driver") 48Before referring to the manner in which the prosecution and defence cases were presented and the directions given to the jury by the trial judge it is appropriate to note the terms of the s 52A. It provides, relevantly: 52A Dangerous driving: substantive matters (1) Dangerous driving occasioning death A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years. (2) Aggravated dangerous driving occasioning death A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. [S 52A(3) and (4) are in identical terms except that they refer to grievous bodily harm rather than death] ... (7) Circumstances of aggravation In this section, circumstances of aggravation means any circumstances at the time of the impact occasioning death or grievous bodily harm in which: (a) the prescribed concentration of alcohol was present in the accused's breath or blood ... (8) Defences It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant): (a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs, or (b) to the speed at which the vehicle was driven, or (c) to the manner in which the vehicle was driven. (9) Definitions In this section: ... prescribed concentration of alcohol means a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood. ... 49The essential elements the Crown was required to prove beyond reasonable doubt in order for the applicant to be found guilty were:

1. A vehicle was involved in an impact
2. The impact occasioned the death or grievous bodily harm of another person
3. At the time of the impact the applicant was driving the vehicle under the influence of intoxicating liquor
4. The prescribed concentration of alcohol was present in the applicant's breath or blood. 50In his opening address to the jury the Crown Prosecutor referred to the essential elements of the offences and then said that he anticipated that there would be an issue as to whether the applicant "was actually the driver when the passenger grabbed the steering wheel". He foreshadowed his ultimate submission that she was the driver "because she occupied the driver's seat, she was the one in control of the movement of the car, being the person who was still in control of the braking system on the car and the accelerator, for means of putting the car in motion and keeping it in motion". 51The prosecutor also anticipated that there would be an issue as to whether the death of Mr Reid and the grievous bodily harm to Ms Allen were not in any way attributable to the applicant being under the influence of intoxicating liquor. 52The prosecutor's anticipation of the issues was borne out in the opening address of counsel for the applicant and both issues were the focus of counsels' closing addresses. 53The trial judge put the "driver" issue to the jury as one as to whether the applicant was "driving" the car at the exact moment of impact. I will say something later about whether this was necessary. Her Honour's direction included: A person is the driver of a vehicle if she has management and control over its movement, whether by the use of the accelerator or gears, brake or steering wheel, or simply by releasing the brakes and allowing gravity to operate. The essence of driving is the use of the driver's controls to direct the movement of the vehicle. (emphasis added) (AB 48) 54In the course of relating that direction to the manner in which the Crown and defence had pitched their respective cases, her Honour said (and repeated it in similar terms a number of times): Are you satisfied beyond reasonable doubt that she was in fact still the driver and had the management and control at the time of the grabbing of the wheel and at the time of impact? If there was a reasonable possibility that what the deceased did meant that she was no longer the driver, that she did not have management and control, you would have to find her not guilty. (AB 49) 55There was quite a deal of discussion about the terms of the directions to be given to the jury on the issue of "driver". This occurred immediately after counsels' closing addresses had been made and also during the course of the summing up. The applicant's absconding brought the evidence phase of the trial to an end and, after the judge had determined to continue the trial in her absence, the addresses immediately followed. Whether counsel for the applicant gave consideration to his continued involvement in the trial is not apparent. But whether he regarded himself as continuing to act on instructions, or upon some amicus basis, it would appear that he applied himself diligently to the tasks at hand in advancing and protecting the applicant's interests. His address and submissions and his conduct of the case for the applicant generally, notwithstanding her absence, were not the subject of any criticism by counsel now appearing. 56The first extract from the summing up that I have set out above was read verbatim in draft and the essence of the second extract was also read in draft in the absence of the jury. Counsel for the applicant expressed his approval. (AB 42-44) The only issue taken by counsel was in resisting the jury being reminded of a Crown submission. Her Honour did remind the jury of that submission, but in the second of the paragraphs extracted below, she negated it: If you find factually he only took hold of [the steering wheel] to correct a situation because of a lack of control, then Miss Williams is still, the Crown says, the driver as long as she still has management and control over its movement. In short then - and you must take into account all of the directions that I have given in respect of this aspect of the case, even if the deceased grabbed the wheel for some reason, the issue is are you satisfied beyond reasonable doubt by the Crown Miss Williams still had management and control of the vehicle at that time and up to the time of the impact. (AB 63)

Driving is a conscious and voluntary act 57A person must be acting consciously and voluntarily to be the driver of a motor vehicle: Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at 577. It was submitted for the applicant that the directions of the trial judge were deficient in not referring to this requirement. In my view the point is implicit in the directions that were given and there was no error. It is unsurprising that counsel at trial did not suggest to her Honour that there was the deficiency now claimed by different counsel.

Can a person be a "driver" without being able to steer? 58It was also submitted that the directions on the element of "driver" were deficient because there was an absence of a direction that if the accused had lost the ability to steer the vehicle she was no longer the driver. 59The ability to steer a vehicle is not, on my research (no authority was cited by either party in relation to the proposition), an essential aspect of a person being a "driver". 60"Drive" is defined in s 3(1) of the Road Transport (General) Act 2005 (NSW) as including being "in control of the steering, movement or propulsion of a vehicle", but there is nothing that extends the operation of that definition beyond that Act. "Drive" is not defined in the Crimes Act. Perhaps the legislature could consider including such a definition to avoid uncertainty and to promote legislative consistency. As the point was not raised in the submissions for either party I will say no more about it. 61There is a wealth of cases in which the concept of "driving" has been examined and the factual permutations are almost infinite. Many of them are civil cases concerned with third-party insurance and there are statements to be found in some of them to the effect that in that context a more liberal approach to interpretation than in penal cases may be taken: see, for example, Ricketts v Laws (1988) 14 NSWLR 311 at 315 per Kirby P. I will confine my reference to the following. 62In R v Affleck (1992) 65 A Crim R 96, the defendant only had control over the clutch, brake and accelerator pedals while another man had control of the gear stick and yet another man was steering. A charge of negligent driving was dismissed by a magistrate but the prosecution appealed. It was held by Smart J (at 98) that having "control over propulsion, that is, over the mode of moving and stopping the vehicle" was "sufficient to make him the driver". He added that if he was wrong about that, the three men were together "driving" the vehicle. His Honour cited in support of the latter proposition some cases in which it had been held that more than one person may be the driver of a vehicle: Ricketts v Laws at 314, per Kirby P; Langman v Valentine [1952] 2 All ER 803 at 805; and Bassell v McGuiness (1981) 29 SASR 508 at 522. 63In Police v Thompson [2006] SASC 20; (2006) 45 MVR 37, the accelerator pedal became stuck after being depressed and the respondent's car careered out of his driveway, across the road and collided with a stump on the other side. A magistrate dismissed a drink driving charge on the basis that the respondent's actions were not voluntary. Vanstone J allowed a prosecution appeal, holding that there was no issue of voluntariness and that the respondent was driving because he maintained the ability to operate all the functions of the vehicle, including the brakes, steering and transmission. In other words, being denied the ability to operate one of the functions normally required for driving did not exclude the respondent from being the "driver". The applicable legislation in that case was s 5(1) of the Road Traffic Act 1961 (SA) which provided that "drive includes being in control of". 64The jury's verdict in this case involved a determination in favour of the Crown that the applicant maintained management and control of the car, at least in terms of controlling its means of propulsion (both in terms of accelerating and braking), up to the very point of impact. The applicant conceded as much in her evidence. No complaint was raised by counsel at trial as to the terms of the direction. Counsel had ample opportunity to consider in advance the directions the judge proposed to give to the jury and he positively supported them. 65That, in my view, is sufficient to dispose of this ground of appeal. I would refuse leave pursuant to Rule 4 to rely upon it. However, there are some additional observations I wish to make. 66It is doubtful whether it was necessary to pose the issue as one requiring the jury to determine whether the applicant was the "driver" at the exact moment of impact. This appears to have placed an onus on the Crown above that which is required by the section. In reality, the directions given to the jury would seem to have been unnecessarily and erroneously favourable to the applicant. 67A person charged with an offence of dangerous driving occasioning either death or grievous bodily harm does not have to be shown to have been voluntarily and consciously managing and controlling the movement of the vehicle at the exact moment of impact. In Jiminez v The Queen, the applicant fell asleep and lost control before the car left the roadway and collided with trees. It was held (at 578): The offence of culpable driving as it applies in the present case requires a motor vehicle to have been driven in a manner dangerous to the public at the time of the impact which occasioned death. Even if the motor vehicle was not being driven dangerously at the precise moment of impact, a preceding period of driving in a dangerous manner may be so nearly contemporaneous with the impact as to satisfy this element of the offence. Contemporaneity is a question for the jury. (Citation of authority omitted) (emphasis added) 68It seems to me that the issue in the present case could well have been confined to that posed by s 52A(8). There was really no dispute that the Crown had established each of the elements of the offence. It was common ground that she was the driver in the period leading up to about one second prior to the impact. It could hardly be suggested that this was not sufficiently contemporaneous. She was grossly intoxicated and there was no dispute that her driving ability was "very substantially impaired" (Dr Perl, a pharmacologist, was not cross-examined about her opinion as to this). The real issue was whether the death and grievous bodily harm were not in any way attributable to the applicant's intoxication because of the intervention of the deceased. 69In her summing up to the jury, Judge Payne set out the defence in s 52A(8). After restating the elements of the offences, her Honour told the jury: [I]f you were satisfied of those four matters beyond reasonable doubt, if that was so, you should find the accused guilty of each offence, unless the accused has satisfied you that the death... and the grievous bodily harm occasioned by the impact, was not in any way attributable... to the fact that the accused was under the influence of intoxicating liquor... It is sufficient if she establishes that on the balance of probabilities. (AB 50) 70Clearly the jury was not satisfied of that on the balance of probabilities. 71In my view, if there was error in the directions given by the trial judge it was error which favoured the applicant by giving her a prospect of acquittal to which she was not entitled. There was no miscarriage of justice.

Ground 2 (error in continuing the trial in the absence of the accused) 72It is necessary to refer to events which immediately preceded the applicant absconding. 73The trial commenced on Monday 29 March 2010. It was the week leading up to Easter. The Crown closed its case on the morning of Thursday 1 April. The applicant gave evidence which commenced at 9.41am. Her evidence in chief was relatively short (some 12 pages of transcript). The Crown Prosecutor commenced to cross-examine her. There are 17 pages of transcript of that cross-examination before the applicant responded to a question with: You know what, you know what, I'm not answering any more of your questions, hey, I told you what happened, you know that's what happened. (AB 528) 74She was told by the trial judge that she had to answer the prosecutor's questions which she did for a short period but then responded to another question with: No you know what, I don't care because I'm not going to answer any more of your fucking goddamn questions because that's what happened. (AB 530) 75The applicant repeated that she would refuse to answer any more questions; she maintained her innocence; she said she did not care if she was found guilty; she said "I don't give a fuck if I go to gaol". This tirade continued for some time, despite attempts by her Honour, defence counsel, and an unidentified speaker (seemingly her mother) to have the applicant desist. Ultimately her Honour directed the sheriff's officer to take the jury out. There was discussion with counsel and then a short adjournment was taken. 76Counsel for the applicant made an application that the jury be discharged. After some discussion the judge indicated she was not disposed to grant the application, but this appears to have been a tentative view and she made no formal ruling. In the course of ensuing discussion, her Honour was informed that the applicant "had a complete melt down", that she could not continue, and she needed to see a doctor. 77The judge indicated she would stand the matter down until after lunch in order to permit the applicant to attend upon a doctor but warned: And if she doesn't attend the trial will continue in her absence and that's what the law is, the trial can continue and I'll issue a warrant for her arrest. 78She reiterated a short time later, "to make it crystal clear", that the trial would proceed if the applicant did not reappear. 79Bail conditions were imposed. They required the applicant to remain at all times in the company of her mother. It was noted that her solicitor would also accompany her. She was to proceed directly from the court to either the Tamworth Base Hospital or the Aboriginal Medical Service and return by 2.15pm. 80Upon the resumption, defence counsel informed her Honour that the applicant had not attended either the hospital or the medical service but had absconded. He sought an adjournment until the following Tuesday which was granted. The question of whether to discharge the jury was deferred until then. 81When the trial resumed on the Tuesday the judge heard submissions on the question of discharging the jury. She refused the application and gave an ex tempore judgment. 82When the jury were brought into court they were directed not to "speculate in any way concerning [the accused's] absence and certainly not draw any adverse inference to her from that absence, but certainly the trial will be proceeding". Counsel then addressed and the judge gave her summing up. 83In the course of the summing up the judge directed the jury to "put to one side" the incident during the cross-examination of the applicant when "she became extremely upset" and "emotions got the better of her". She also directed the jury "not to draw any bad or adverse inference to her in respect of that behaviour in the witness box". (SU 5) 84Her Honour also reminded the jury of her direction that they "should put to one side the circumstance that Miss Williams is not now present" and that they "must not speculate as to why she is not in attendance" and that they "must not draw any bad or adverse inference to her as to why that is the position". (SU 6) 85In the ex tempore judgment on the application to discharge the jury her Honour acknowledged that the issue was a discretionary one. She took into account the stage the trial had reached, the age of the matter, the fact that some of the witnesses had been required to travel some distance to attend, and that the accused had been put on notice that the trial would continue in her absence if she failed to return after being permitted the indulgence of leaving the court to seek medical treatment. She expressed the view that any prejudice to the accused could be cured by directions to the jury.

Submissions 86It was contended for the applicant that the trial should not have continued. The jury might have engaged in speculation regarding her absence. She had not completed her evidence. And there was no opportunity for her counsel to re-examine her on matters raised during the cross-examination. 87It was submitted that there would have been no disadvantage to the Crown if the trial was aborted and the jury discharged. All of the prosecution witnesses had given their evidence and so a further trial could be conducted by way of placing the evidence of any witnesses before a fresh jury by way of transcript. I interpolate that, given the challenge to the credibility and reliability of some of the prosecution witnesses, it is doubtful that such an approach at a further trial would have been appropriate. 88Reference was also made to some evidence given by Ms Allan about the applicant's character and history of driving which was described as gratuitous and prejudicial. Ms Allan volunteered on a number of occasions that the applicant's manner of driving on the occasion in question was the same as it was on previous occasions when she had driven whilst drunk. 89This was one of the factors relied upon by counsel at trial in support of his application for the jury to be discharged. Her Honour, however, accepted the Crown submission that it was a matter that "can more than adequately be dealt with by appropriate direction to the jury". The judge gave such a direction at the end of the summing up by telling the jury to "put that evidence completely out of your mind and focus only on the manner of driving at the time on this particular day". No further direction was sought. 90No issue has been taken with the reasoning disclosed in her Honour's judgment refusing the application to discharge the jury. The submission for the applicant is understood to be that the decision to continue the trial was simply one that was not available in the proper exercise of her Honour's discretion. 91The Crown submitted that the applicant had made a deliberate choice to absent herself from her trial. Reference was made to a community interest in the completion of the trial, particularly because it was concerned with a death. The only disadvantage to the applicant identified in the written submissions on her behalf was the inability for her to complete the cross-examination and to be re-examined. However, it was submitted that such disadvantage was the product of her conscious and deliberate decision to abscond. Accordingly it was submitted that there were public policy reasons which militated in favour of continuing the trial in her absence. Reference was also made to the fact that the applicant's counsel had remained in the trial. He addressed the jury and advanced the applicant's interests in terms of making submissions as to her Honour's summing up.

Consideration 92In Jamal v R [2012] NSWCCA 198, Hidden J referred (at [35]) to what he described as "longstanding authority affirming that, generally speaking, an accused should be present at every stage of a criminal trial". His Honour went on to refer to some cases in which there has been an exception to that general proposition, one of which was R v McHardie & Danielson [1983] 2 NSWLR 733. In that case there was an issue as to whether the trial judge had erred in failing to discharge the jury when one of the accused (McHardie), having escaped from prison, did not appear. The Court found (at 742) that absconding on bail during a trial amounts to a waiver by the accused of his right to be present at the trial, and similarly so in the case of an accused who escapes from lawful custody. 93The Court looked at the following matters in the course of considering whether there was error in the exercise of the discretion by the trial judge in permitting the trial of McHardie to continue: most of the Crown case against McHardie had been given by the time of his escape; it was a very cogent case; a great deal of time of the Court, jury, and witnesses, had been expended up to that stage. Another factor was that the co-offender Danielson who was jointly charged desired the trial to proceed. Their Honours concluded in relation to this ground (at 745): Notwithstanding the general principle that at an indictable offence trial before a judge and jury the accused's presence is normally a prerequisite to a fair trial, his failure to appear after the trial has started, through his escape from lawful custody, can correctly be described and found to be a waiver of his right to be present at his trial; that the trial judge has a discretion as to whether he should continue his trial, or discharge the jury. ... We hold that no error has been shown in the exercise of the judge's discretion to continue the trial, and that on an overall view of the trial, no miscarriage of justice has been shown in the matter now being considered. 94In R v Jones [1998] SASC 7021; (1998) 72 SASR 281 it was held (at 294-295) that a Court may proceed with a trial in the absence of the accused in circumstances where the accused has waived a right to be present; such a waiver could be constituted by an escape from custody or breach of bail or where without good excuse or explanation the accused absents him or herself from the proceedings. The rationale for this principle was said (at 295) to be that otherwise an accused who was on bail and who believed at some time during the trial that his or her prospects of acquittal were remote could absent himself or herself and thereby force a new trial. If that was the principle it would be necessary to revoke the bail of all accused persons at the outset of their trial which would be an unfortunate and unfair consequence. 95Later in Jones it was said that the first matter which must be considered in the exercise of the discretion is whether the accused has voluntarily absented himself or herself and whether such absence indicates a waiver of the right to be present during the whole of the proceedings. The next matter to be ascertained is whether counsel would remain during the continuation of the trial (at 296). Other matters to consider are the strength and nature of the Crown case, the defence insofar as it has been disclosed, the length of time over which the case has run and will run, the prejudice that the accused might suffer, the risk of a miscarriage of justice, the inconvenience to the victims and the witnesses and the impact upon the administration of justice (at 297). A further matter "a trial judge must always consider" is the fundamental right of an accused to be present at his or her trial and that the discretion to continue at the trial should only ever be exercised sparingly (at 297). 96In my view it has not been established that there was error in the exercise of the trial judge's discretion to order the continuation of the trial in the absence of the applicant. This was particularly so given the late stage at which the applicant absconded, with little left for which the applicant could have had any input and particularly having regard to the warning that the trial judge had given as to the consequences of absconding. The other matters her Honour took into account were of the type considered relevant in R v McHardie & Danielson and R v Jones. The conclusion to continue the trial was one that was open to her Honour. Her judgment was based upon correct principle, it was unaffected by any extraneous matters, there was no mistake as to the facts, and she took into account all material considerations: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. 97No error has been established. I would refuse leave to rely upon this ground.

Ground 3 (error in reminding the jury of Dr Perl's evidence) 98During the course of her summing up the judge reminded the jury of the evidence given by expert witnesses. She referred to the evidence of Dr Perl, a pharmacologist, Dr Breusch, a forensic pathologist, and Constable Clout and Mr Grant Johnston, both of whom were traffic collision investigators. Her Honour's summary of the evidence of the latter three was brief but she reminded the jury of the majority of the evidence of Dr Perl. 99It was submitted that, given intoxication was not in dispute, it was inappropriate for her Honour "to reinforce matters not in issue in the case so as to prejudice the [applicant] in the eyes of the jury". It was submitted that whilst this on its own may be thought to have little merit, it may have compelled the jury to focus on the applicant's considerable intoxication rather than upon the important issue as to whether she was the "driver".

Consideration 100Her Honour's reference to the evidence of Dr Perl occupies less than two pages of transcript of the summing up. It did involve reference to the majority of her evidence, but that is because it was relatively brief and there was no cross-examination. 101Dr Perl's evidence concerned the level of impairment of the applicant's ability to drive. In my view that was a significant matter for the jury to take into account because of the reliance of the applicant upon the defence in s 52A(8). For the jury to consider whether the death and the grievous bodily harm occasioned by the impact was not in any way attributable to the fact that the applicant was under the influence of intoxicating liquor, her level of impairment was an important consideration. 102The essential elements of the offences were the subject of clear directions by her Honour. The jury were told that there was no dispute in relation to any of them apart from the necessity for the Crown to prove that the applicant was "the driver". In the way the trial was conducted, that was obviously the most significant issue and I cannot accept that her Honour's review of the evidence of Dr Perl distracted the jury from it. 103In my view this ground has no merit and it is unsurprising that counsel raised no complaint about the matter at trial. Leave to rely upon this ground should be refused.

Ground 4 (misdirection as to the role of the Crown Prosecutor) 104At an early stage of the summing up the judge gave the jury directions about the respective roles of judge and jury. In the course of this she said: My role is to ensure that there is a fair trial to both the Crown, who prosecutes on behalf the whole community, and on behalf of the accused. (AB 28) 105A little later (one page of transcript) her Honour said: You have very important matters to decide in this case, important not only to the accused but also to the whole community. (AB 29) 106It was submitted that by identifying the Crown as prosecuting on behalf of the community and by identifying the jury as part of the community there was a distinct possibility that the jury would align their role and responsibilities as inextricably linked to those of the Crown. It was submitted that this was "an improper exercise to undertake as it disadvantaged the [applicant]". 107Arguments similar to those advanced under this ground were considered by this Court in Skipworth v R [2006] NSWCCA 37 at [32]-[49] and Makarov v R (No 2) [2008] NSWCCA 292 at [107]-[112]. On both occasions the point was found to have no merit. I agree with and adopt what was said in those cases and come to the same conclusion in this case. 108Leave to rely upon this ground should be refused.

Conclusion as to appeal against conviction 109None of the grounds have merit. Leave to appeal against conviction should be refused.

Application for leave to appeal against sentence 110Leave was sought to rely upon two grounds of appeal against sentence. They were: Ground 5. The presiding judge erred in not properly considering the issue of the deceased grabbing the steering wheel and causing the vehicle to lose control. Ground 6. The presiding judge erred by accumulating the sentences imposed so that the overall sentence was manifestly excessive.

Ground 5 111It was submitted that the grabbing of the steering wheel by the deceased was a "very powerful mitigating factor which reduced the applicant's otherwise high moral culpability". 112Reference was made to her Honour saying that she accepted the Crown's submission that Mr Reid grabbed the wheel out of self-preservation (AB 84). It was submitted that there was no evidence to support such a conclusion. 113The Crown submitted that the finding was open to her Honour. The judge rejected a submission that there was no erratic driving before the accident. The actions of Mr Reid could only have arisen out of fear or panic occasioned by his perception of the applicant's driving. His conduct did little to ameliorate the seriousness of the applicant's conduct as it was that conduct that induced Mr Reid's action.

Consideration 114The statement by her Honour which is said to be erroneous appeared in the context of her Honour considering the objective seriousness of the offences. 115Her Honour first referred to the blood alcohol reading of 0.282 and concluded that it was "exceedingly high" and for that reason alone made "this a serious example of the aggravated offence". Her Honour then referred to the evidence of Dr Perl that the applicant's driving ability was "very substantially impaired". She also referred to the nature of the injuries sustained by Ms Allan; that the collision occurred in a suburban street at a time when it would be expected that there would be other road users and pedestrians; the applicant's erratic driving involved swerving from side to side; and the "not ... insignificant length of trip". 116It was in the course of referring to these features that her Honour said: I also accept the Crown's submission Mr Reid grabbed the wheel out of self-preservation. The real relevance of this is in relation to it being consistent with my view that the car was swerving. The witnesses described it variously as fishtailing but going from side to side as it went down the road, ultimately off to the left and into the power pole. 117Counsel for the applicant submitted that there could be other explanations for the deceased having grabbed the steering wheel other than self-preservation. To my mind it is difficult to envisage a sensible alternative explanation, although whether Mr Reid was acting sensibly cannot necessarily be assumed. Nevertheless I am of the view that the finding made by her Honour was one that was well open to her to make. The primary cause of the applicant's vehicle colliding with the power pole was the fact that she was driving with an extremely high blood alcohol concentration and she was driving erratically. The evidence of those two factors was overwhelming. 118There is no merit in this ground.

Ground 6 (accumulation of sentences resulting in a manifestly excessive overall sentence) 119The written submissions for the applicant in relation to this ground commenced by accepting the accumulation by six months of the sentences for the driving offences upon the sentence for the Bail Act offence. But it was then submitted that her Honour should have ordered that the sentences for the driving offences run concurrently, ie they should both have been specified to commence on 10 December 2011. The basis for this was that "there was only one single driving incident". 120Counsel referred to other cases in which concurrent sentences had been imposed: R v Dunlop [2001] NSWCCA 435; R v Rayner [2002] NSWCCA 309; R v Reeves [1999] NSWCCA 269; and R v Black NSWCCA 23 July 1998, unreported). 121The Crown submitted that there was no general rule that there should be concurrent sentences imposed for offences that are committed within a single act. If wholly concurrent sentences do not adequately reflect the total criminality of the conduct, the appropriate aggregate sentence is ordinarily achieved by making the sentences wholly or partially cumulative.

Consideration 122The judge was correct when she said: Keeping in mind the principle of totality, the criminality in respect of the offences require some accumulation. 123The judge was required to determine the sentences for the individual sentences before considering questions of cumulation or concurrence and the principle of totality: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 624. She was required to consider whether the total sentence properly reflected the totality of criminality, including whether the sentence for one offence could comprehend and reflect the criminality of the other offence: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] per Howie J; and R v XX [2009] NSWCCA 115; 196 A Crim R 38 at [52] per Hall J. 124The fact that there have been some cases in which concurrent sentences were imposed does not support the proposition that the judge was wrong to accumulate the sentence for one offence upon the non-parole period for the other offence. Imposing concurrent sentences in this case would have failed to recognise and reflect the fact that the applicant's criminal conduct resulted in the death of one person and the serious bodily harm to another. 125Sentencing in cases of multiple offences of dangerous driving occasioning death or grievous bodily harm arising from a single incident of driving usually result in partially or wholly accumulated sentences in order to reflect the harm caused to multiple victims: see, for example, R v Janceski [2005] NSWCCA 288 at [23] per Hunt AJA; Richards v R [2006] NSWCCA 262 at [78], per McColl JA; and Duncan v R [2012] NSWCCA 78 at [40] - [41] per Basten JA. 126The accumulation of sentences where there are multiple victims is not a recent phenomenon. In R v Wilkins (1988) 38 A Crim R 445 a single episode of driving caused the death of three persons and grievous bodily harm to a fourth. The sentencing judge accumulated one of the sentences upon others. Lee CJ at CL said (at 449) that to make all the sentences concurrent "would make the law a laughing stock." 127It was contended in written submissions for the applicant that there was "an unreasonable accumulation of the sentences". This raises a question as to whether a total term of 7 years 6 months and total non-parole period of 4 years 6 months was unreasonable. 128The starting point is to accept the correctness of her Honour's characterisation of the applicant's moral culpability as being very high to the point that it amounted to an abandonment of responsibility. 129Her Honour took into account a number of subjective matters which called for some moderation of the sentences to be imposed. For example, she remarked that the applicant "has had a very difficult life and one unfortunately similar to many Aboriginal women". The applicant's history included sexual abuse as a child; intellectual functioning in the borderline range; depression, panic and post-traumatic stress disorders; and ongoing problems with alcohol abuse. She had five children, three of whom lived with her who were aged 3, 5 and 14. Her Honour accepted that she was remorseful and had taken responsibility for her offending behaviour. 130On the other hand, the applicant had never held a driver's licence in this State but had a number of prior driving offences. Her record in Queensland was described as "fairly long", although she had only been imprisoned once, for a period of one month. The driving record prompted her Honour to conclude that the applicant had an attitude of disobedience to the law which warranted greater weight to be given to retribution and personal deterrence. General deterrence was also taken into account, with "slight" moderation on account of the applicant's mental health issues. 131It was necessary for the judge to impose sentences which were individually, and overall, proportionate to the objective seriousness of the offences. It has not been established, in my view, that the total effective sentence exceeded the boundaries of her Honour's discretion.

Conclusion as to sentence 132There is no merit in either of the grounds of appeal against sentence. I would refuse leave to appeal.

Orders 133I propose the following orders:

1. Leave to appeal against conviction refused.
2. Leave to appeal against sentence refused.

Amendments 15 March 2013 - Typographical errors Amended paragraphs: 18,20,22,23,24,26,27 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 March 2013