No. 59 of 1998
- On 14 February 1996 a fully laden M.A.N. semi-trailer motor
vehicle, weighing some 43 tonnes (the "semi-trailer") ran into the
rear of a
Bedford tray truck carrying four steers (the "Bedford") in the left hand
southbound lane of the Hume Highway some 10 kilometres
north of Wangaratta.
The collision occurred at approximately 8.15 p.m. eastern summer time, in fine
weather and in good conditions
of visibility, although the sun was setting in
the west and, according to some witnesses, cast a glare. The highway, at the
point
where the collision occurred, was a divided one with two southbound lanes
divided by a median strip from two northbound lanes.
On the left of the two
southbound carriageways, and separated from them by a "fog-line" was an
emergency lane which bordered a grass
verge. The highway in this vicinity was
known as the "Wangaratta Straight", and as the name implies, comprised more
than 10 kilometres
of straight bitumen road without any impediment to vision.
The Bedford, which was being driven by a young man named Gregory Anderson,
aged
22, had turned onto this stretch of highway from an intersecting road some two
kilometres to the north of the point of collision.
Anderson had driven from
his father's property, which he had left shortly before the collision, for the
purposes of delivering
the cattle to a market in Wangaratta. The cattle were
encaged in a wire frame on the tray of the Bedford, the total weight of
which,
including the load, was approximately six tonnes.
- The semi-trailer was being driven by the applicant Steven
Wayne Franks who was 44 years of age. He was an interstate truck driver
of
some 20 years experience. His journey to the point of collision had commenced
in Brisbane at about 4 p.m. on the preceding day,
the 13th of February. He
was driving for a company called "Braun Transport" and his destination was the
Sunshine depot of that
company. The journey was the "return leg" of a
Melbourne/Brisbane/Melbourne trip. The trip had begun in Melbourne on Sunday
11
February at about 5 p.m. whence the applicant had driven to Brisbane where
he had arrived shortly before midnight on 12 February.
It was undisputed that
from midnight on 12 February until 4 p.m. on 13 February, the applicant had
been in Brisbane. He had slept
in the "sleeper berth" of the semi-trailer
from midnight until approximately 6 a.m. on 13 February. He had then
re-fuelled the
truck, made some phone calls and then slept again. Having left
Brisbane at 4 pm. on 13 February he had driven to the point of collision
via
Nambucca Heads, Bulahdelah, Wyee, Moorebank, Sutton Forrest, Tarcutta and
Holbrook.
- The collision occurred in the left hand lane of the southbound
carriageway of the highway. Although there were other vehicles
following the
semi-trailer along the "Wangaratta Straight", their drivers only became aware
of the collision when they saw a cloud
of dust and the Bedford run off the
highway onto the grass verge on the eastern side and overturn. Later
investigations by the
police revealed that the impact had been "off-set" and
between the near-side three-quarters of the front of the semi-trailer and
the
off-side three-quarters of the rear of the Bedford. The nature of this impact
caused the Bedford to slew to its left and pushed
it off the roadway into the
grass verge to the left of the road where it overturned crushing and killing
Anderson.
- After police investigations which lasted for more than a year,
the applicant was ultimately charged with the offence of "causing
death by
culpable driving", an offence created by s.318 of the Crimes Act 1958.
Sub-section (1) of that section provides that:
"Any person who by the culpable driving of a motor vehicle causes
the death of another person shall be guilty of an indictable offence
...".
At the relevant time the offence carried a
maximum custodial penalty of 15 years.
- S.318 (2) of the Crimes Act specifies the forms of
culpability which can give rise to the offence created by sub-section (1). In
this case the form of culpability
specified was that set out in sub-paragraph
(b) of sub-section (2). It provides:
"For the purpose of sub-section (1) a person drives a motor vehicle
culpably if he drives the motor vehicle -
...
(b) negligently,
that is to say, if he fails unjustifiably and to a gross
degree to observe the standard of care which a reasonable man would have
observed in all the circumstances of the case;
..."
Although trial judges are required to confine
themselves to the words of the sub-section when explaining the offence to
juries (R. v. Horvath [1972] VicRp 60; [1972] V.R. 533), the "gross" departure from the
standard of reasonable care of which the sub-section speaks is the equivalent
of criminal negligence
sufficient to support the crime of manslaughter (R.
v. Shields [1981] VicRp 68; [1981] V.R. 717 at 724).
- The applicant was presented for trial on this offence in
February 1998. He pleaded not guilty. After a trial which lasted for
some
ten days in the County Court at Shepparton, he was convicted of the offence.
On 19 March 1998, following a plea in mitigation,
the applicant was sentenced
to a period of imprisonment of three years. The judge fixed a period of two
years as the minimum term
to be served before the applicant would become
eligible for parole. In addition the judge fined the applicant a total of
$4,600
for various summary offences to which he had pleaded guilty. There
were 46 of these charges which related, inter alia, to driving
hours in excess
of those prescribed, failing to have appropriate "rest periods" and failing to
make proper recordings in his log
book.
- The applicant has appealed to this Court against his
conviction for "culpable driving" and the sentence imposed for that offence.
The grounds of appeal, which were amended by leave of the Registrar on 18 June
1998, are many and varied but, for present purposes,
it is sufficient that I
refer to the following:
"8. That whilst charging the jury on the facts, the [judge] erred
in law in failing to put the onus of proof properly.
9. That in
the circumstances [the judge] erred in law in failing to direct
the jury that unless they were satisfied beyond reasonable doubt
that the
deceased's truck did not move from the emergency lane to the left hand lane of
the highway shortly before the accident,
they should acquit the appellant.
10. That in the circumstances the [judge] erred in law in failing to direct the
jury that the failure
of the appellant to take such evasive action as to ...
avoid a collision did not in law necessarily amount to driving in a grossly
negligent manner.
...
12. That the [judge] erred in law in failing properly or adequately to put to
the jury the defence raised
on behalf of the appellant, namely:
(i) that the deceased suddenly moved his truck into the path of
the appellant's semi-trailer;
..."
- In support of these grounds Mr. Francis Q.C., who appeared
with Mr. Houlihan for the applicant, submitted that the trial had miscarried
because the learned trial judge had failed to give adequate instructions to the
jury as to the essential issues which the Crown had
to prove before they could
convict the applicant. He further submitted that the learned judge had failed
to give adequate directions
in respect of the "defence" made by the applicant
to the Crown case and the manner in which the jury should approach the
applicant's
evidence in determining whether the Crown had proved its
case.
- Before I turn to those submissions it is desirable that I
refer to the way in which the case was put by the Crown and the evidence
led in
support of that case. It was the Crown's case that the applicant had simply
driven his semi-trailer into the rear of the
slower moving Bedford because he
was in a state in which, as the prosecutor put it in his opening address, "his
eyes may have been
open but his brain was not working". He was in this state,
so the prosecutor said, because "he had just driven too far, too long"
over the
period of the preceding 18 days and the fatigue had accumulated to the point
where he was, in effect, an automaton unable
to avoid the Bedford ahead of him.
In support of that case the Crown led and relied upon a great deal of evidence
which was calculated
to reconstruct a pattern of driving by the accused over
the period of 18 days leading to the collision. This evidence included
the
production of the applicant's log book, the entries in which were accepted to
be incomplete and, in some cases fallacious; a
book which the prosecutor
described as a "sham"; and evidence of mobile phone records, Shell diesel
dockets and relevant "video
records" of State transport authorities which were
said to be capable of placing the applicant's semi-trailer at various points in
Victoria, New South Wales and Queensland during the 18 days preceding the
collision. The Crown also led evidence from investigating
police of three
lengthy records of interview which had been conducted with the applicant early
in the morning of the day following
the collision, on 25 April 1996 and on 30
April 1997. The Crown relied upon answers given by the applicant during these
interviews,
many of which were given to questions which seem to me to have been
of a "leading" nature, to support its contention that over the
period of the 18
days, the applicant had driven for such lengthy periods without appropriate
rest that, by the time he approached
the point of collision, he was either
asleep or in an "automatic" state. Indeed, the final "questions" put to the
applicant at
the end of a five hour interview on 25 April 1996, reflect the
case which was ultimately put by the Crown:
Q. "So, getting back to the day of the collision, would you say
that it looks like you're tired when you're driving and that what's
happened -
you're tired and you've fallen asleep and woken up and you're on - virtually on
top of this guy."
A. "No, I wouldn't
say that."
...
Q. "And because you're in this mental state of mind, tiredness, run down,
that there's a possibility and I'd say
it's not - not a possibility, it's a
high probability that your concentration wasn't there. You were unaware of
this truck in front
of you until the last moment. And you re-acted and
braked."
A. "I can't see any point in saying any more than what I've already
said."
- Furthermore, in support of the case it was making, the Crown
called a Dr. Howarth, who was described as an "expert in driver fatigue",
to
give evidence of the effect which "accumulated fatigue" can have on drivers'
reactions. Finally the Crown relied on evidence
of police officers who were
stationed at Wangaratta at the time of the collision who gave evidence of their
observations of the applicant
in the hours following the collision,
observations which suggested that he was tired and in need of
sleep.
- It was, thus, the Crown's case that the gross departure from
the standard of care of the reasonable driver required by s.318 of the
Crimes Act, was to be found in the conduct of the applicant in
continuing to drive his vehicle when he was aware, or should have been aware,
that he was at risk of falling asleep or of being unable to react to
foreseeable contingencies. Indeed, in opening the case, the
prosecutor put it
this way:
"He had just driven too far, too long and unfortunately killed a
young man, and we say that is gross negligence, because you know
very well when
you are driving, you say to yourselves `Goodness me I'm tired. ... I'm so
tired I can hardly keep awake.' And
what do you do? Do you have a sleep, or
do you have a drink, do you have a rest, do you get out and walk around and so
forth?
But, see, he didn't; he didn't."
- Although no particulars were given in the presentment, or
elsewhere, of the facts upon which the Crown relied to establish "gross
negligence" it was conceded by Mr. Coghlan Q.C. who appeared for the respondent
on this appeal, that the case made by the Crown was
as I have described
it.
- The applicant's defence to this case made by the Crown was a
simple one. He said that he was quite alert, had had ample rest
in the 48
hours preceding the collision, and had been unable to avoid the collision.
His evidence was that he had first become conscious
of the Bedford when he saw
it travelling slowly in the emergency lane, that is the lane immediately to the
left of the one in which
he was travelling. As he approached, it swung
without warning into the left lane in front of him leaving him no option but to
brake
as hard as he could but he was unable to stop before the collision
occurred.
- Although, as I have said, there were other trucks following
the applicant, none of the drivers was able to confirm or deny the
accuracy of
the applicant's evidence. This was because, as the judge pointed out in his
charge, "none of them saw, because their
vision was masked, what actually
happened". The Crown, nevertheless, relied on the fact that none of them had
seen the Bedford
in the emergency lane. However there was evidence at
the trial which, so it was put on the applicant's behalf, tended to support his
version
of events:
(a) Senior Constable Ralph, who was the first policeman to
arrive at the scene, said that he had spoken to the applicant shortly after
8.30 p.m. He had administered a preliminary breath test, which was negative,
and had asked what had happened. The applicant had
told him that he had been
travelling at 100 k.p.h. in the left lane and had seen the Bedford in the
emergency lane. Ralph said
that the applicant had told him:
"He just came out in front of me ... you know, I hit
everything but I couldn't stop."
Although the applicant had difficulty
in estimating distances between the
semi-trailer and the Bedford, this was his consistent version from the time
when the collision
occurred until the trial.
(b) The truck driver travelling behind the applicant was a Mr.
Lieschke. As he approached the point where the collision occurred
he was
talking on his telephone. He said that he had been travelling behind the
applicant's semi-trailer for some time and was
gradually gaining on it, over a
distance of about 8 kilometres. Because of the gradient in the highway, it
would appear that his
vision of the semi-trailer as it approached the point of
collision must have been limited to about 3.5 kilometres. He noticed nothing
aberrant about the behaviour of the applicant's vehicle, either in its position
on the road or speed. This, it was said on the
applicant's behalf, stood in
contrast to the evidence of Dr. Howarth who said that "drowsy" and "dim"
drivers have difficulty in
keeping to one lane and maintaining a constant
speed. She said that drivers in such states tend to lose control so that
their vehicles
"zig-zag".
(c) Sgt. Bellion of the Accident Appreciation Section gave expert evidence as
to the "probable speeds" of the semi-trailer and the
Bedford at the time of
impact. The lower range of speed which he gave for the Bedford was 36 k.p.h.
He also gave evidence that
the skid marks left by the semi-trailer indicated
that its brakes had been in operation for some 20 metres before the impact.
(d) It was not in contest that the applicant had been in Brisbane for some 16
hours before he left on the 13th February. The applicant's
evidence was that
he had slept from mid-night on the 12th until about 6 a.m. on the 13th.
Thereafter he had fuelled his truck and
made phone calls but otherwise was
"sleeping or relaxing" until 4 p.m. when he started his home journey. It did
not seem to be
seriously in contest that the applicant had arrived at Nambucca
Heads at about 9 p.m. where he had rested for one hour; that he
had driven
from Nambucca Heads to Bulahdelah where he arrived at about 1 a.m. on the 14
February; he had spent half an hour there
before setting off at 1.30 a.m. for
Wyee. He arrived at Wyee at about 2.30 and spent three hours there in the
sleeper cabin, and
then drove from Wyee to Moorebank where he arrived at about
7 a.m. The Braun company has a depot there. He said that some pallets
he
had brought from Brisbane were unloaded there and the vehicle was re-loaded.
Again, he said, he rested for about three hours before
leaving Moorebank at
about 11 a.m. He refuelled at Sutton Grange at about 12.15 p.m. and then
drove to Tarcutta where he arrived
at about 4.15 p.m. He rested there, for a
meal, for 45 minutes and then drove to Holbrook, where he again stopped for an
hour.
His evidence was that, when collision occurred, he was "okay to drive,
I was wide awake". He also said that, some few kilometres
before the
collision, he had observed "radar police" on the median strip of the
highway.
- Against the background of that contest of evidence and the
cases made by the Crown and the applicant in respect of it, it is convenient
to
return to the directions which the judge gave to the jury. In dealing with
the elements of the offence alleged against the applicant,
his Honour
instructed the jury that they had to be satisfied to the requisite standard
that the applicant "was driving [the semi-trailer]
at the relevant time" and
that the death of the [deceased] occurred as a consequence of the collision.
His Honour continued:
"The third element, and this of course is the contentious matter,
and the critical issue for you to determine, that the accused drove
that
vehicle ... culpably. That, so far as he is concerned means that he drove the
vehicle in a particular forbidden way that I
will define for you in a moment.
Now the final element the Crown must prove is that the accused person's
actions in driving the
vehicle in the particular forbidden way caused the death
of Mr. Anderson. It is sufficient if the bad driving was a substantial
and
operative ... cause of the collision or death. The accused's forbidden way of
driving does not ..., and I emphasize the word
`not' - have to be the sole
cause of [the] death."
- His Honour then instructed the jury as to the meaning of
negligence sounding in damages in the civil sense. He
continued:
"Now what I have defined is what is used in civil cases to
establish negligence. Of course there are very important differences
between
a civil case in driving, negligent driving, and this criminal trial of culpable
driving. In a civil case the standard of
proof is different.
In a civil case the plaintiff does not have to prove anything other than mere
negligence. That is a small
departure from the standard of care. But before
the accused ... can be convicted here the Crown must establish a much greater
falling
short of the standard of care which the reasonable person would have
exercised in the circumstances than is necessary in a civil
case. It is a
greater burden.
...
You must go on and consider whether such negligence, that is such a failure
to observe the
standard of care which a reasonable man would have observed in
all the circumstances of the case was unjustifiable and to a gross
degree.
The Crown must prove that his departure from the standard of care was such that
it deserved to be called `gross'.
...
Did the accused man - and this is the question - fail to a gross degree to
observe the standard of care which the reasonable man
would have observed in
all the circumstances? And it is for you the jury to determine whether the
effects of the accused's driving
in this case, the facts that you find, deserve
to be described as a gross departure from that standard of care."
- What his Honour told the jury was, as an explanation of the
law, basically correct so far as it went. However his Honour did
not, at this
point in his charge, define for the jury the particular conduct of the accused
upon which the Crown was relying to establish
what his Honour had called the
"forbidden way of driving". It has frequently been said by this Court that it
is of little use to
a jury to explain the law to them in general terms and then
leave them to apply it to the facts of the case before them. The law
should
be given to the jury not merely with reference to the facts of the particular
case but with an explanation of how it applies
to the facts of a particular
case (Alford v. Magee [1952] HCA 3; (1952) 85 C.L.R. 437 at 466; Bellizia v.
Meares [1971] VicRp 78; [1971] V.R. 641 at 644-5; R. v. Anderson [1996] VICSC 17; [1996] 2 V.R. 663
at 668). It was, I think, unfortunate that following the directions to which
I have referred the court adjourned until the following
morning when his Honour
turned to the evidence. He said that he was not proposing to canvass it in
any great detail but, in the
course of referring to it, the only references to
the case made by the Crown and the "forbidden way of driving" were those which
follow. In referring to the Crown case, his Honour said:
"It has built up a story and that, it maintains, was driving that
was uninterrupted for 18 days, falsely recorded ... and therefore
misleading in
the accuracy of what it supposedly represents. From this it seeks that you
draw an adverse inference with respect
to the driver's condition at the time of
the accident. Sufficient, it says, the Crown says, to constitute a fatigue
which would
amount to the gross negligence as required by the
charge."
- His Honour then referred, in a general and compendious way,
to the evidence of the witnesses by "groups". In the course of doing
so, he
said when referring to the evidence of Dr. Howarth:
"The one thing that emerged from the expert, Dr. Howarth's evidence
is that there is a progressive accumulation in the creation and
development of
fatigue. That may well be a common sense conclusion - its relevance to the
issues in this case is the picture produced
over 18 days. You are looking at
a totality and the prosecution relies upon that totality to explain the crisis
of the accident
as being the end product of the accumulated fatigue. It is
not, says the Crown, an isolated happening. It is, says the Crown,
part of a
continuum."
- His Honour then indicated that he was proposing to refer to a
select few of the questions and answers in the records of interview
conducted
between the police and the applicant and, by way of introduction, gave the
following instructions:
"You must have regard to all that evidence and his answers to the
questions. As I have just said, it is clear that the Crown relies
upon the
issue of fatigue to establish its case. In a sense it is a simple issue.
The driver believed, and I will quote some of
his answers, it was safe for him
to drive even though he acknowledged he might have been tired. You may well
recall the questions
put to him in the record of interview and in evidence in
this Court. You must decide whether Mr. Franks might honestly have believed
on reasonable grounds that it was safe for him to drive. It is not what he
says, it is what you as the jurors assess his state
to be. If you do come to
the conclusion that he believed on reasonable grounds that it was safe for him
to drive, then of course
the prosecution must negate that by the evidence it
has adduced. It is an objective assessment by you not a subjective
one."
- It was submitted to this Court that these directions were
inadequate to isolate and identify for the jury what it was upon which
the
Crown was relying to prove the culpable driving. Indeed it was submitted that
the directions tended to obscure that issue.
For my own part I think there is
substance in this submission. Although, as I have said, no particulars were
given by the Crown of the conduct said
to constitute the gross departure from
the standard of care expected of the reasonable person, it is tolerably clear
from the material
to which I have earlier referred in these reasons that the
conduct upon which the Crown was relying to prove that the accused drove
"culpably" was his conduct in continuing to drive the semi-trailer up to or
shortly before the point of collision whilst he was in
a condition where he was
aware or ought to have been aware that there was a significant risk of falling
asleep at the wheel and/or
losing control of the vehicle. I say "up to or
shortly before the point of collision" because it seems to me to have been part
of the Crown case that the collision occurred either whilst the applicant was
asleep or in an automatous state or that he had been
in such a state to a point
when the "agony of the collision" arose. So long as he was in such a state or
endeavouring to handle
the crisis created by such state, he could not be guilty
of "driving culpably" because his actions were not voluntary (R. v.
Carter [1959] VicRp 19; [1959] V.R. 105 at 111; R. v. Kroon (1990) 55 S.A.S.R. 476
at 478; (1990) 52 A.Crim.R. 15 at 16; Jiminez v. R. [1992] HCA 14; (1992) 173 C.L.R.
572 at 577-8, 578-9).
- However, as King, C.J. said in R. v. Kroon, (1990) 55
S.A.S.R. at 480; (1990) 52 A.Crim.R. at 16:
"Every act of falling asleep at the wheel is preceded by a period
during which the driver is driving while awake and therefore ...
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."
- These comments of King, C.J. were made in the context of a
case where the appellant had been charged both with the offence of "causing
death by dangerous driving" and the lesser alternative of "driving without due
care".
- In this trial the critical conduct upon which the Crown was
relying to establish "culpable driving" was not, in my view, sufficiently
drawn
to the jury's attention by the judge, because he did not tell them that, before
they could convict the accused of the offence,
they would have to be satisfied
beyond reasonable doubt that, at a time sufficiently contemporaneous with the
death as to render
it an operative cause thereof, the applicant continued to
drive his semi-trailer when he knew or ought to have known that there was
a
real risk that he would fall asleep or lose control of his vehicle. That was,
as I understand it, the conduct alleged by the
Crown in this trial to
constitute the culpable driving and it was only conduct of that type which, in
my view, would have warranted
a conclusion that the applicant had failed to a
gross degree to observe the standards of the reasonable man; that is the
"forbidden
way of driving" about which his Honour had instructed the jury when
dealing with the one ingredient of the offence which was really
in issue. To
continue to drive a vehicle when one is "tired" or "fatigued", words of wide
import, will not necessarily represent
a departure from the standards expected
of the prudent driver, such as to attract the epithet "gross". In my view it
will only
become so when the fatigue has reached a point where the driver is or
should be aware that continuing to drive poses the risks to
which I have
referred.
- As King, C.J. pointed out in Kroon's case (S.A.S.R. at
480; A.Crim.R. at 19), it is always a difficult issue in this class of case
whether the driving before sleep amounts
to an indictable offence. But, as
his Honour said:
"The critical issue is the degree of the accused's departure from
the standard of care expected of an ordinary prudent driver."
- Where the Crown asserts, and the accused denies, that the
accused was driving whilst in a state where he was or should have been
aware
that he was about to fall asleep, it is incumbent on the judge to give careful
directions as to the relevant factors in the
case which will require the jury's
consideration in determining the issue (Jiminez v. R., supra at 580;
R. v. Kroon, supra S.A.S.R. at 480; A.Crim.R. at 19). Factors such as
the hours of driving, periods of rest, observed behaviour of the vehicle
both
before and at the point of collision and observations of the accused after the
collision are all factors which a jury would
be entitled to consider in
determining whether to draw the critical inference which the Crown is asking
them to draw;
"The crucial question for the jury, if properly directed, would
then have been whether they were prepared to infer that, in the totality
of the
circumstances known to any reasonable person in the situation of the appellant,
such reasonable person knew or ought to have
known that he might fall asleep.
Should he have been aware as a reasonable man of any such warning signs -
regardless of his denials?
This question of the awareness of a reasonable
person in the situation of the appellant should have been at the heart of the
case
... ." (per White, J., R. v. Kroon, supra, S.A.S.R. at 492;
A.Crim.R. at 30)
- The only passages in the learned judge's charge which could
be said to have directed the jury's attention to what I regard as the
real
issue in the case are those passages to which I have previously referred, which
were unrelated to the directions upon the elements
of the offence but were
given when dealing generally with the evidence in the case. I agree with the
contention of Mr. Francis
that those directions were insufficient to identify
for the jury the real issue which they had to consider or the factors in the
case which were pertinent to that issue. There may be some cases where a
judge is relieved of the obligation to carefully identify
to the jury what the
crucial issue of fact in dispute is because it is patently obvious (cf. R.
v. Hurley & Anor. [1967] VicRp 57; [1967] V.R. 526 at 529-30). In my view this case
was not one of them. Certainly the jury were not told that, if they found
that the applicant
was asleep at the point of impact, or for a period before
the point of impact, his driving during that period could not, at law,
constitute culpable driving; nor were they told that they should focus their
attention upon the period of driving preceding that
time whilst he was in a
state of awareness and responsible for his actions. His Honour, it is true,
referred in general terms to
the Crown's "reconstruction" of the accused's
driving over a period of 18 days and said that the Crown was asking the jury to
infer
from that evidence that it was sufficient to "constitute a fatigue", at
the time of the collision, which "would amount to gross negligence".
Further
when dealing with the evidence of Dr. Howarth, his Honour told the jury that it
demonstrated that a "progressive accumulation"
and "development" of fatigue
could occur over a period and that was relevant "to the picture produced over
18 days"; and that the
prosecution was relying upon that "totality" to explain
the "crisis of the accident as being the end product of the accumulated
fatigue".
- Quite apart from the fact that these directions did not
isolate for the jury what, in my view, was the critical issue which they
had to
decide nor direct the jury's attention to the evidence, both for and against,
which bore upon that issue, it seems to me that
they carried with them the risk
that the jury might well have taken them to mean that, if they were satisfied
that the accused's
pattern of driving over the preceding 18 days had caused him
to become fatigued, that conduct in itself could amount to "culpable
driving
causing death".
- It was also erroneous in my view for his Honour to have told
the jury that, in considering the "simple issue" of "fatigue", they
could take
into account whether the accused "might honestly have believed on reasonable
grounds that it was safe for him to drive".
Quite apart from the fact that
the jury were not directed to the time at which the accused might have held
such a belief, it was
simply not relevant to the establishment of the offence
created by s.318 of the Crimes Act, at least where the offence is
alleged to have been constituted by "grossly negligent driving", for the jury
to determine whether
the accused had an honest belief that it was safe for him
to drive or whether that belief was based on reasonable grounds. It seems
that his Honour was induced to give such a direction as a consequence of the
decision of the High Court in Jiminez v. R., supra at 582, where the
Court held that a "defence" of "honest and reasonable mistake" would be
available in a charge of "causing
death by dangerous driving". Although such
a "defence" can be raised to a charge which depends for its proof upon the
Crown establishing
that the relevant driving was objectively dangerous, it
cannot in my view have any relevance to an offence which depends for its
proof
upon the establishment that the relevant driving of the accused departed so far
from the standard of care expected of the reasonable
and prudent driver that it
amounted to "gross negligence". Although Mr. Francis sought to argue before
this Court that such a "defence"
could be raised to the charge in this case,
and that the judge had misdirected the jury in respect of it, I cannot accept
that contention.
The misdirection is to be found in inviting the jury to
consider the beliefs of the accused. In a case where it was being asserted
by
the Crown that the accused had driven for excessive periods over 18 days and
had falsely and inaccurately recorded the extent
of that driving, an invitation
to the jury to consider generally the honesty and reasonableness of the
accused's beliefs was calculated
to divert the jury's attention from the focal
issue in the case; an issue which was quite unrelated to his beliefs, whether
they
were honest or dishonest, reasonable or unreasonable, or
otherwise.
- There was another and related criticism of the learned
judge's directions upon which Mr. Francis laid emphasis. He contended
that
his Honour had failed to adequately direct the jury as to the "defence" made by
the applicant to the Crown's allegations and
had failed to properly instruct
them upon the manner in which they should approach that
"defence".
- The applicant gave sworn evidence that he was wide awake as
he drove towards the point where the impact occurred and was in no
way overcome
by drowsiness. He said that the collision was "unavoidable" because the
Bedford, which he had first noted travelling
slowly in the emergency lane, had
suddenly swung without warning into the lane in which he was travelling.
Although he immediately
applied his brakes he could not avoid his vehicle from
colliding with the rear of the Bedford. This version of events he had
consistently
given from the time when he had been first questioned at the scene
by Senior Constable Ralph. He had maintained it throughout persistent,
and
what appears to have at times been hostile, questioning by police over a period
of more than one year, leading to his final comment
after more than 1400
questions in the interview of April 1996 that "I cannot see the point in saying
any more than what I have already
said".
- The applicant's version, although it could not be verified,
nor refuted, by any eye-witness, was not without some support to be
found in
the evidence led at the trial. Whilst much was made by the Crown of the
"reconstruction" of events over 18 days, the fact
remained that in the
approximate 44 hours which immediately preceded the collision, the applicant
had not been driving during at
least 24 of those hours. The applicant said
that he had been sufficiently alert to notice a police "radar patrolman" on the
highway
only a few kilometres from where the accident had occurred, who had
also been noticed by other drivers. No following driver suggested
that there
was anything about the behaviour of the applicant's semi-trailer up to the
point of collision which suggested a lack of
control. Sgt. Bellion's
evidence, if taken at its most favourable from the applicant's point of view,
suggested that, at impact,
the Bedford was travelling at a slow speed somewhat
inconsistent with it having been travelling for over two kilometres in the
traffic
lanes of this open highway. Nor was it open to question that the
brakes of the applicant's vehicle had been in operation for some
20 metres
before the impact. The evidence also established that the applicant was
affected neither by alcohol nor by drugs.
- The facts of this case from the applicant's point of view
therefore stood in contrast to other cases such as Kroon (supra),
Jiminez (supra), Horvath (supra), and R. v. Hinz [1972]
Qd.R. 272 where the vehicles concerned had suddenly and without explanation
deviated from their intended paths and had either gone onto the
incorrect side
of the road or left the road. In those cases, as it seems to me, it was much
easier to draw the inference that the
driver for some reason, probably sleep,
had lost control of the vehicle than it was in this case where the Crown was
contending that
the applicant ought to have deviated the vehicle, but had not,
from its intended path of travel.
- It is against that background that his Honour's directions
should be assessed. In the course of dealing with the evidence of
the
following drivers, his Honour said:
"Because they are clearly behind the trucks concerned, they cannot
see the precise actuality but rather give evidence of the consequences
of the
actuality and this evidence of course points to one of the facts in dispute and
upon which, as I have said, the defence relies,
that is and it is entirely a
matter for you, whether the cattle truck was in fact in the emergency lane and
whether it just moved
out into the path of the accused truck. I will have
something more to say about that."
The "something more" to which his Honour alluded came in the
concluding passage of his charge. He said:
"There only remains one other matter I want to raise with respect
to the evidence and it relates to the accused's version of the emergence
of the
cattle truck from the emergency lane. That again is a matter for you. If
you accept that evidence then you must do so
in the light of, and as a
consequence of, the evaluation and interpretation of the evidence regarding the
impact. There is no doubt
in this case that the travelling in the emergency
lane is a source of conflict. You should not, in my view - and it is only my
view and you can reject it - be bound by the times before the accident. They
have, and I have repeated this with respect to Mr.
Anderson's evidence, they
have been but estimates about such and such a time. In my view to try to pin
each event to a precise
time is not going to assist your deliberations because,
and for the very reasons I put to you yesterday, the suddenness, the brevity,
the quickness of it all, precision is not there to be found and you are not
seeking the truth."
- Apart from a brief description of the defence case given at
the outset of his instructions upon the evidence, these appear to have
been the
only directions given by the learned judge about the evidence given by the
applicant and the manner in which the jury were
to approach that evidence. It
is put on the applicant's behalf that they were wholly inadequate because not
only did they fail
to put the applicant's defence to the case being made
against him by the Crown properly and with reference to the supporting evidence
but, more importantly, they did not bring home to the jury the manner in which
that evidence should be used by the jury in determining
whether they could be
satisfied, to the appropriate standard, that the Crown had proved its
case.
- Once again, in my view, the submissions made on behalf of the
applicant have substance. This was a case where the evidence given
by the
applicant as to manner in which the collision occurred was entirely opposed to
the case which was being made against him by
the Crown. He was entitled to
have his evidence fully and fairly put to the jury together with such factors
as were to be found
in the evidence which supported or might have supported his
defence. The directions to which I have referred did not do that.
They were
cryptic in the sense that they advised the jury that they could only "accept"
the applicant's evidence "in the light of,
and as a consequence of the
evaluation of and interpretation of the evidence regarding the impact". It is
difficult to know what
the jury would have made of that
instruction.
- Mr. Francis also submits, in my view with some force, that
these instructions to the jury did not fully and fairly put the applicant's
case because the only allusion in them to the evidence potentially supportive
of that case was to the evidence of the deceased's
father, upon whose evidence
as to the time of the deceased's departure from the farm the applicant was
relying to support his contention
that the deceased must have stopped on the
highway for some purpose. It was submitted that his Honour only alluded to
that evidence
in a dismissive way by suggesting to the jury that they should
reject the inferences which the applicant had invited the jury to
draw from it.
- It is, of course, true that a trial judge does not have to
draw to the jury's attention, in the course of his charge, all the matters
raised by the evidence; nor is he obliged to repeat to them all the arguments
which counsel have made on that evidence. However
he does have an obligation
to put before them adequately and fairly the case being made by the accused.
In this case I have formed
the view that his Honour's directions did not fulfil
that obligation. There were, as I have already noted, matters in the evidence
which were capable of supporting the case which was being made by the applicant
but nowhere in the course of the directions was the
jury's attention drawn to
them, nor any reference made as to how those factors might impact upon the case
being made by the Crown.
Of course, the movement of the Bedford upon the
roadway immediately before impact was only one of the factors, albeit an
important
one, upon which the applicant was relying to rebut the
particular allegation of "gross negligence" made by the
Crown.
- Nor, in my view, was it appropriate for the learned judge to
have told the jury that it was "entirely a matter for them" to accept
or reject
the applicant's version of how the collision had occurred, without giving them
some assistance as to how the accused's
evidence might impact upon the
discharge by the Crown of its onus of proof. The onus of proving that the
applicant's "grossly negligent
driving" was a substantive and operative cause
of the death of the deceased remained with the Crown from first to last. The
applicant's
explanation of how the accident occurred was part of the evidence
which the jury had to consider in determining whether that onus
had been
discharged. The applicant had no onus of proving that the collision occurred
in the way in which he said it had. In
the light of the judge's earlier
directions to them, the jury would have accepted that they were at liberty to
give whatever weight
they thought fit to the evidence of the applicant and were
entitled to treat whatever remarks the judge made about his evidence as
a
"comment" which they could ignore if they chose. His Honour had earlier told
the jury:
"I do not know whether there is a black-board in the jury room here
or not. Somewhere it ought to be written, `It is entirely a
matter for you'.
And that particular expression or sentence may well be repeated by me, because
any comment I make is simply comment.
It is a matter for you. You make a
decision as to what weight you give that evidence and in the light of the
records of interview."
- However, because the applicant's explanation was wholly "at
odds" with the case the Crown was making, the jury should have been
told that
they were bound to consider what the accused had said as to how the accident
occurred and that, if at the end of the day,
they considered that it was a
reasonable possibility or, put another way, that it raised a reasonable doubt
in their minds about
the Crown's version of events, the applicant was entitled
to the benefit of that doubt (cf. R. v. Spurge [1961] 2 Q.B. 205 at 212
per Salmon, J. (as he then was); R. v. Hinz, supra, at 275-6 per W.B.
Campbell, J.; R. v. Kroon, supra, A.Crim.R. at 30 per White, J.). To
tell the jury that it was "entirely a matter for [them]" to accept or reject
the accused's
explanation seems to me to have left them at large on an issue
which was central to the Crown's onus of proof and leaves open the
possibility
that the jury may have convicted the applicant even though they regarded the
applicant's explanation of how the collision
occurred as a reasonable
possibility (cf. per McHugh, J. in Jiminez v. R., supra, at
589).
- For the above reasons, it is my view that the trial has
miscarried and that grounds 8, 9, 10 and 12 of the grounds of appeal have
been
made out. Even though counsel for the applicant at trial only took a limited
exception to the judge's directions given in
respect of the failure to put the
defence and did not, at least so far as the transcript indicates, press for a
re-direction in respect
of the other matters to which I have referred, it is my
view that the misdirections were so material as to lead to the conclusion
that
the applicant has not had a trial according to law.
- The conclusion to which I have come makes it strictly
unnecessary for me to deal with the other grounds of appeal, save grounds
1 and
6. These grounds are:
"1. The verdict of the jury was unsafe and unsatisfactory."
"6. The learned trial judge erred in rejecting the submission of the accused
that there was no case to answer on the count of
culpable driving in that the
evidence led by the Crown was incapable of supporting any reasonable
inference that the fatigue
of the accused was the proximate cause of the
collision ..."
Each ground was based on the proposition that the evidence led by the Crown
was incapable of proving the case which the Crown set
out to prove against the
applicant. I do not accept those arguments. Properly instructed, it was
open to a reasonable jury to
have found on the evidence that, at a time
proximate to the collision, the applicant was continuing to drive his vehicle
when he
was aware, or should have been, that his condition was such that there
was a real risk that he would fall asleep or lose control
of his vehicle so as
to be incapable of avoiding foreseeable risks which might arise and that, in
doing so, his conduct represented
such a departure from the standard of care
expected of the prudent driver as to amount to "gross negligence". I have
already referred
sufficiently to the evidence which, in my opinion, was capable
of supporting such an allegation and it is unnecessary to repeat it.
I would,
accordingly, reject these grounds of appeal.
- For the reasons given I have come to the conclusion that the
appeal should be allowed and that, unfortunate though it may be, there
should
be a re-trial on the count of "culpable driving". I agree with Batt, J.A.,
whose reasons I have had the advantage of reading
in draft form, that upon any
such re-trial, the Crown would not be precluded from contending, in the
alternative, that the grossly
negligent driving consisted of a failure to keep
a proper look-out.
TADGELL, J. A.:
- Had the applicant's sole complaint been that the instructions
to the jury did not adequately summarise his case, I should have
hesitated to
upset the verdict. I am well satisfied, however, that the learned judge's
charge gave an insufficiently clear instruction
to the jury about the
ingredients of the Crown case that required proof beyond reasonable doubt in
order to sustain a conviction.
- There was a strong Crown case to be put but it was neither
simple nor straightforward: it by no means spoke for itself. The Crown
relied
on the appellant's driving negligently in that he failed "unjustifiably and to
a gross degree" to observe the standard of
care prescribed by s.s.(2)(b) of
s.318 of the Crimes Act 1958. Had this been a civil case it is
difficult to suppose that precise particulars of the alleged shortcomings of
the driver against
whom negligence was alleged would not have been sought and
given, and that the jury would not have been instructed strictly by reference
to them. Remarkably, particulars of that kind were apparently neither sought
from nor given by the Crown in this case. Perhaps,
in a criminal trial, that
is not altogether unusual, but I cannot help thinking that the want of a
precisely charted course for the
Crown was unfortunate in this one. The
incident in which the deceased suffered his misfortune was at once so obviously
gross and
grievous that an inference by the jury of some fault on the part of
the applicant was little short of inevitable. It was necessary,
however, that
the jury should have been exactly directed by the judge with respect to the
applicant's acts and omissions on which
the Crown relied in order to prove, as
a crime, a failure to a gross degree to observe the appropriate standard of
care in his driving of the semi-trailer.
- The judge's instruction to the jury, in effect, that they
were at large to decide that the applicant's driving when fatigued could
constitute gross negligence was a misdirection. So also was the instruction
that the jury "must decide whether [the applicant] might
honestly have believed
on reasonable grounds that it was safe for him to drive". This was not an
issue in the case; and to continue
by way of instruction to the jury that "If
you do come to [the] conclusion that he believed on reasonable grounds that it
was safe
for him to drive, then of course the prosecution must negate that by
the evidence it has adduced" was, I am obliged to say, calculated
to confuse
the jury as to the onus of proof.
- Having had the benefit of reading the reasons that the
learned President has prepared, I agree with those assigned by him for the
conclusion that these misdirections vitiated the trial. Regrettable though the
result may be, I am constrained, therefore, to agree
in the view that the
conviction must be set aside and a new trial ordered. I concur also with the
other members of the court that,
on a re-trial, it would be open to the Crown
to contend, alternatively, that the applicant's grossly negligent driving was
referable
to his failure to keep a proper lookout.
BATT, J. A.:
- Having had the benefit of reading in draft the reasons of the
President, I am persuaded that the trial of the applicant for culpable
driving
miscarried in the respects identified by the President and that this is not a
case where the limited exception taken to the
charge enables the proviso to
s.568(1) of the Crimes Act 1958 to be applied.
- I must own to some hesitation on the question whether the
defence case was properly put to the jury by his Honour. That case was
that
the Bedford pulled out suddenly from the emergency lane into the next
lane so close in front of the applicant that the collision was
unavoidable. The essence of the case and of the applicant's evidence was
undoubtedly put in the first of the three relevant passages quoted
by the
President, even if the other passages were somewhat dismissive of the case. In
addition, the jury could not have been unmindful
of the factual submissions in
support of that case made by counsel for the applicant in his one-hour address
on the afternoon on
which his Honour began his charge, a charge which continued
for only about half an hour on the next day. It is true, too, that a
trial
judge is not obliged to repeat all the points made by defence counsel or to
conjure up considerations in favour of the defence
case. Nevertheless, the
judge neither gave any details of the applicant's evidence nor mentioned (even
by way of referential incorporation
of counsel's address) any of the
considerations that might be advanced in support of the defence case. Weighing
everything up, I
think that his Honour's treatment was inadequate: the charge
lacked balance.
- I am clear that the charge was defective in failing to
instruct the jury that it was for the Crown, in seeking to have the jury
accept
its largely circumstantial case, to exclude, beyond reasonable doubt, as an
explanation of the collision the version given
by the applicant: Knight v.
The Queen [1992] HCA 56; (1992) 175 C.L.R. 495 at 502-503 and 505, and Cutter v. R.
[1997] HCA 7; (1997) 71 A.L.J.R. 638, besides the cases specific to culpable driving and like
offences cited by the President. In expressing that view I acknowledge
the
sufficiency of his Honour's earlier general directions as to inferences and
circumstantial evidence, but I consider that, whatever
might otherwise have
been the position, the effect of those directions was nullified by his Honour's
statements in the second and
third of the relevant passages quoted by the
President that it was, or was entirely, "a matter for you" to accept or reject
the defence
version.
- Having regard to the considerable discussion during argument
of the alternative I am about to mention, I would add, for the assistance
of
the judge presiding at any re-trial, that, in my view, on such a re-trial it
will be open to the Crown, which, it will be recalled,
had not given
particulars of the gross negligence, to contend in the alternative that the
grossly negligent driving consisted in
a failure to keep a proper look-out
while travelling at speed on a straight stretch of well-engineered road with a
clear view from
an elevated cabin when visibility was good. I am of this view
notwithstanding that the Crown did not put that alternative case in
the trial
earlier this year, because the alternative stood out as a distinct possibility
on the very facts which the Crown proved
and was really before the jury,
because it is not inconsistent with the case the Crown then put and because it
does not adopt a new
legal construction of the facts. King v. The Queen
[1986] HCA 59; (1986) 161 C.L.R. 423 at 433 and Jiminez v. The Queen [1992] HCA 14; (1992) 173 C.L.R.
572 at 590 are, I consider, distinguishable.
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