Ferguson v The Queen [2020] VSCA 166 (19 June 2020)

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GEOFFREY FERGUSON	Applicant

v

THE QUEEN	Respondent

JUDGES:	PRIEST, KAYE and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 June 2020
DATE OF JUDGMENT:	19 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 166
JUDGMENT APPEALED FROM:	DPP v Ferguson (County Court of Victoria, Judge Mullaly, 15 August 2018)

CRIMINAL LAW – Appeal – Conviction – Applicant convicted of one charge of culpable driving causing death, two charges of negligently causing serious injury and three charges of reckless conduct endangering life – Applicant’s vehicle moved onto incorrect side of the road and collided with another vehicle – Applicant engaged in a telephone conversation with his brother prior to and at the time of the collision using a hands-free Bluetooth device – Evidence of applicant’s brother that immediately before the collision applicant had a sustained and prolonged bout of coughing after which applicant was unresponsive – Evidence that applicant suffered from bibasal pneumonia at the time – Whether applicant’s driving at the time was conscious or voluntary – Whether verdict unreasonable or not supported having regard to the evidence – No evidence that applicant was not in a fit condition to safely drive the vehicle – Evidence that applicant was well rested – Expert evidence that applicant suffered an episode of unexpected loss of consciousness of brief duration immediately before the collision – Applicant’s driving of the vehicle at the time of the collision neither conscious nor voluntary – Leave to appeal granted – Appeal allowed – Applicant’s convictions on each charge quashed – Sentences imposed on applicant set aside – Verdicts of not guilty entered on the record.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J D Williams with Mr P J Smallwood	Doogue & George Pty Ltd

For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

1 The applicant was convicted, by the jury empanelled on his trial in the County Court, of one charge of culpable driving causing death, two charges of negligently causing serious injury, and three charges of reckless conduct endangering life. The charges arose from a collision involving a vehicle driven by the applicant, and two other vehicles, on the Katamatite-Shepparton Road, Invergordon, on 26 October 2015. Very shortly before the collision, the vehicle driven by the applicant had moved onto the incorrect side of the road into the path of oncoming traffic. The applicant seeks leave to appeal against his conviction on the ground that each of the verdicts was unsafe and unsatisfactory in that it was not open to the jury to reject the defence that the applicant had suffered from an unforeseen syncopal episode immediately before his vehicle moved onto the incorrect side of the road.

2 At the time of the accident, the applicant was employed as a driver by Jeftomson Transport. The applicant had suffered from a chest infection and had been unwell for some days. He had asked his employer if he could have some time off on the afternoon of the accident, but was told that a replacement driver could not be found for him. After the applicant was admitted to hospital following the collision, he was diagnosed and treated for pneumonia that affected both of his lungs.

3 At the time of the accident, the applicant was driving a Kenworth Prime Mover towing a refrigerated Pantech trailer on the Katamatite-Shepparton Road in a general northerly direction. The accident occurred shortly after 12.30 pm. As the applicant approached the scene of the collision, the Katamatite-Shepparton Road has a sweeping left-hand curve shortly before the intersection with Cornford Road. Very soon after the applicant’s vehicle commenced to negotiate that bend, it moved onto the incorrect side of the road, and collided head-on with a Holden Commodore driven by Mr Alan Cogger. At the time of the accident, both vehicles were travelling at less than the 100 kilometres per hour (‘kph’) speed limit.

4 As a consequence of the collision, the applicant’s semi-trailer jackknifed, with the trailer coming to rest on the roadway, completely blocking it. A Nissan X-Trail, that was travelling behind the Commodore, took evasive action, and as a result collided with the rear of the Commodore. A fourth vehicle, a Subaru Outback station wagon, also managed to take evasive action to avoid the semi-trailer, and was able to stop without colliding with any other vehicle.

5 As a result of the collision, Mr Cogger suffered fatal injuries from which he died. The two passengers in his vehicle, Paul Ewert and Joel Pring, suffered serious injuries. They were the victims in relation to the two charges of negligently causing serious injury. The occupants of the X-Trail, Andrew Black, Louise McLaughlin and Eulalie Black, received minor injuries. They were the subjects of the three charges of reckless conduct endangering life.

6 At the trial, it was not in dispute that in the period leading up to and including the time of the collision, the applicant was engaged in a telephone conversation with his brother Stephen Ferguson, which the applicant conducted using a ‘hands-free’ (Bluetooth) device. Further, it was not in dispute that the accident occurred when the applicant’s vehicle diverged onto the incorrect side of the road very shortly before the collision. The critical issue in the trial concerned the reason why the applicant’s vehicle moved onto the incorrect side of the road. The case, on behalf of the applicant, was that immediately before the collision, he had suffered a severe bout of coughing, which had resulted in him experiencing a syncopal episode, so that his driving at the critical time was neither conscious nor voluntary.

7 Before outlining the evidence relating to that issue, it is convenient, first, to summarise, briefly, the evidence as to the circumstances of the collision.

8 Detective Senior Constable Michael Hardiman, a member of the Victorian Police Major Collision Investigation Unit, attended the scene in the afternoon after the accident. He determined that the applicant’s vehicle was travelling at approximately 83 kph at the commencement of the skid marks that led to the point of the collision. He said that the applicant’s vehicle skidded 5.5 metres, in addition to the length of the truck, before the impact, as a result of the application of brakes on the vehicle. He explained that before the commencement of the skid marks on the road, there would have been a further distance over which the prime mover was braking but had not commenced the skid. Further, before the applicant applied the brakes on his vehicle, there would have been a reaction time which ordinarily would be of 1.5 seconds duration. Thus, Senior Constable Hardiman explained, in the lead up to the accident, there would have been the reaction time, braking over an indeterminate distance before the skid marks commenced, and then the 5.5 metres of skid marks.

9 Senior Constable Hardiman also explained that there was evidence that the vehicle had commenced to steer to the left as it approached the sweeping left-hand bend. If there had been no such steering, the vehicle would have driven off the roadway before it impacted with the Commodore. He noted that the distance, between the commencement of the left-hand bend in the road and the gouge marks on the road that immediately preceded the point of impact, was some 88 metres. He calculated that if the vehicle commenced to turn left while travelling 83 kph, that steering input would have occurred three seconds before impact. In cross-examination, Senior Constable Hardiman stated that he was unable to say at which point the applicant’s vehicle had left its correct lane and travelled onto the incorrect side of the road.

10 Detective Senior Constable Philip Frith, who was also a member of the Major Collision Investigation Unit, attended the scene of the collision on the same afternoon. Senior Constable Frith is a qualified automotive technician. He stated that all vehicles are designed in a manner that, when travelling on a flat and level surface, they track in a straight direction if there is no steering input. He therefore determined that, at the point at which the road commenced to bend to the left, there must have been a steering input by the applicant, otherwise his vehicle would not have ended up in the position that it did at the time of the collision.

11 Senior Constable Frith took possession of the applicant’s iPhone. He ascertained from it that the applicant had received a call from his brother Stephen Ferguson at 12.27 pm, which lasted for 199 seconds, and concluded at 12.30.50 pm. Senior Constable Frith was provided with the GPS unit from the applicant’s vehicle. The download from that unit indicated that the collision occurred at 12.30.01 pm. The GPS data also indicated that a few kilometres before the collision the vehicle had been travelling at 100 kph. Thirty-one seconds before the collision, it was travelling at 94 kph, and at the time of the collision it was travelling at 91 kph.

12 Senior Constable Frith explained that a vehicle travelling at 91 kph would traverse 25.27 metres per second. He calculated that the bend in the road to the left, applicable to the applicant’s vehicle, commenced some 88 metres before the point of collision. It was at that point that there had been some steering input by the applicant. Taking into account a reaction time of 1.5 seconds, and the length of the skid marks, he calculated that the applicant’s vehicle would have travelled no more than 44.6 metres between that point and the point at which the applicant reacted to apply the brakes on his vehicle. Senior Constable Frith determined, accordingly, that with a vehicle travelling at 91 kph, it would have taken no more than 1.76 seconds to traverse that distance.

13 Leading Senior Constable David Liversidge, of the Katamatite Police Station, also attended the scene. He spoke to the applicant and administered the caution. He said that when he asked the applicant what had happened, the applicant responded ‘I really don’t know what has happened’.

14 Leading Senior Constable David Cowley, of the Cobram Police Station, attended the scene. He administered a preliminary breath test to the applicant which indicated that he had a zero alcohol and zero drug content. Senior Constable Cowley conducted a recorded conversation with the applicant. In the course of that conversation, the applicant said that he remembered coughing, and that he had been coughing for two or three days. He could not remember if he was coughing just before the collision. He said he saw the car coming towards him and he did not know where it came from. He said, ‘It was like split second before impact, it’s just there’. The applicant said that he thought that he ‘jumped on the brakes’, and that the only picture in his mind was ‘there’s this car right in front of the truck’.

15 Mr Sebastian Tomarchio and Mr Mark Herrick both gave brief evidence. At the time of the accident they were, respectively, the operations manager and the transport manager of the Jeftomson group of companies. In cross-examination, each of them confirmed that the applicant was an experienced truck driver with a good record, and that he was a somewhat pedantic and very cautious person in his work.

16 The principal witness, in respect of the issue of the applicant’s condition at the relevant time, was his brother, Stephen Ferguson. He said that at about 11.07 am on 26 October 2015 he had a telephone conversation with the applicant. At that time, the applicant had completed his first trip for the day and he had some other small trips to do. He said that he and his brother usually spoke on most days. The applicant told Stephen Ferguson that he had decided he would go to the doctor and he was going to ring his work and ask them to get someone else to do the second run for the day.

17 Stephen Ferguson had a second conversation with the applicant at about 12.30 pm on the same day. The applicant told Stephen that he had asked his boss if he could put someone else on the truck because he wanted to go to the doctor. However, the boss had told the applicant that he did not have anyone to put in the truck on that day, but that he could organise something for the next day. Stephen Ferguson said that during the conversation he could tell when the applicant was navigating intersections and making turns, because he could hear that the applicant’s breathing would change as he undertook those manoeuvres. He also said that on a couple of occasions the applicant was coughing, and at one stage he rolled down the window and went quiet for a while. At that time, there was extra noise in the background due to the road noise that entered the cabin. When the conversation resumed, it sounded as though the applicant was far away. The applicant’s voice then became loud again, and he apologised to Stephen Ferguson because he had had to ‘put the mic up’. Stephen Ferguson explained that the applicant had a boom microphone on his headset, and that the applicant had put it up, so he could wind down the window and spit out some phlegm.

18 Stephen Ferguson said that the applicant told him that he had tried to speak to his other boss about a replacement driver. At that time, Stephen Ferguson heard the applicant coughing, which he described as a ‘very convulsive kind of coughing’. The applicant continued to cough, and at the end of it, Stephen Ferguson could hear what he described as ‘that ... wheeze at the last part of your lungs when you’ve emptied them and you’ve got nothing left to give’. Stephen asked the applicant if he was ‘all right’ and there was no response. Stephen could not hear anything. He could normally hear the applicant breathing, but at this point he could not hear anything at all. Accordingly, Stephen repeated the question with more urgency, asking the applicant if he was ‘all right’, and there was still no response. When Stephen said ‘Geoff, are you all right?’, he heard the applicant make an exclamation of shock, which was followed by a ‘horrendous noise’, and there were then three noises in a row. At some point, Stephen became aware that the call was no longer connected. He tried to telephone the applicant. Initially, he was not able to do so. When he ultimately made contact, he said that the applicant sounded extremely distraught, saying that he had been involved in a major collision.

19 In cross-examination, Stephen Ferguson said that he was aware that the applicant had been unwell since the previous weekend. It had commenced with the applicant clearing his throat, and had then developed into persistent coughing. The illness progressed more rapidly, and the applicant developed a congestive type of cough in which he was bringing up phlegm. Stephen said that in the first conversation on 26 October, at 11.07 am, the applicant had coughed several times. On those occasions, the applicant had wound down the window to spit out phlegm. He confirmed that in the next conversation that took place at about 12.30 pm, he heard the applicant coughing and he could hear a wheezing noise. Stephen then asked the applicant on three occasions if he was ‘all right’, to which the applicant did not respond. Stephen said that he could not hear anything on the telephone for between three and five seconds before he heard an exclamation from the applicant and almost immediately followed by the sounds of a collision. When Stephen visited the applicant in hospital on the same evening, the applicant told him that his first clear memory before the accident was that he looked up and saw the car immediately in front of him, and that he had reacted by spinning his steering wheel and stamping on the brakes.

20 Dr Morris Odell, a senior forensic physician at the Victorian Institute of Forensic Medicine, was provided with the medical records of the applicant at the Goulburn Valley Hospital and at the Kyabram Regional Clinic. He said that the records did not disclose any medical condition, or any medication taken by the applicant, that could have affected his fitness to drive, or could have led to him suffer a blackout while driving. In cross-examination, Dr Odell agreed that the medical records of the Goulburn Valley Hospital noted that the applicant was suffering from a chest infection at the time of the collision, and that he was given intravenous and oral antibiotic treatment. A chest X-ray and CT scans disclosed bibasal (both sided) lung consolidation, which constituted a form of early pneumonia at the bottom of both lungs. An assessment by a physiotherapist at the hospital on the day after the accident (27 October 2015) noted a strong productive cough with reduced air entry and fine crepitations in both lower lobes. Dr Odell was aware of the phenomenon of cough syncope, which can result in a short period of unconsciousness, followed by a fairly quick recovery to lucidity.

21 Professor Matthew Naughton, a respiratory and sleep physician, gave evidence on behalf of the prosecution. Professor Naughton was the Head of the General Respiratory and Sleep Medicine Services at the Alfred Hospital. He had been provided with relevant documentation concerning the accident and concerning the applicant’s condition. Professor Naughton noted that the applicant had been suffering symptoms of influenza with a moist productive cough and that he had felt unwell for the whole of the preceding weekend. The chest X-ray raised the possibility that the applicant might have had pneumonia at the time of the collision. Professor Naughton considered that if a CT scan had been performed, it would have been of use. Professor Naughton considered that it was probable that the applicant had a chest infection. He had an abnormal chest X-ray, and he had been feeling unwell and had a moist cough. Professor Naughton considered that the applicant had had sufficient rest over the previous weekend which would have allowed him to function appropriately as a driver. Professor Naughton stated that viral and bacterial infections, of the kind suffered by the applicant, can lead to significant fatigue, which could impair a driver’s capacity to drive. He suggested that the manner in which the collision occurred indicated that fatigue or inattention contributed to it.

22 Professor Naughton noted that the possibility of cough syncope had been raised in the documentation. He said, however, that it was very unlikely that the applicant had suffered an episode of cough syncope for four reasons. First, there had been no repetition of the syncope before or after the accident. Professor Naughton expressed the view that if a person has an episode of cough syncope, he would expect there to be repeated episodes. Secondly, Professor Naughton stated that it was incongruous that the cough syncope occurred as a singular event at the time when the applicant was negotiating a bend in the road. Thirdly, Professor Naughton stated that, based on his experience and the literature, cough syncope generally occurs in patients who have additional medical problems, such as advanced lung disease such as cystic fibrosis or advanced emphysema. Fourthly, Professor Naughton stated that cough syncope is ‘an extraordinarily rare condition’.

23 Professor Naughton noted that the applicant had a history as a responsible driver, he had ceased smoking, and he took minimal amounts of alcohol. He believed that it was possible that the applicant had undiagnosed underlying sleep apnoea, as his body mass index was 34, he had elevated blood pressure, and he was single (so that it was not known whether he snored). Professor Naughton stated that people who have unrecognised sleep apnoea have a probable twofold risk of motor vehicle collisions.

24 Professor Naughton summarised his view that the collision was unrelated to cough syncope. He said that the applicant was unwell at the time of the collision, and with his background of asthma and possible asymptomatic sleep apnoea, they may have culminated in a fatigue related collision.

25 Professor Naughton noted that the evidence that Mr Ferguson had made a left-hand steering input some 88 metres before the point of impact, indicated that he was conscious at that point. The fact that it would have taken about 1.76 seconds to drive from that point, to the point where the applicant saw and commenced to react to an oncoming vehicle in his path (by steering and commencing to apply his brakes), made it unlikely that he had suffered an episode of cough syncope. Professor Naughton stated that it was unusual for people to lose consciousness for one or two seconds only.

26 In cross-examination, Professor Naughton expressed some scepticism concerning the medical literature which described patients that had a single episode of cough syncope that was not repeated. He said that that literature was based on anecdotal evidence, which was not replicated in a clinical environment. He also said that the one clear-cut case of cough syncope, that he had seen in his 30 year career, involved a young man with cystic fibrosis and vascular problems. He was of the view that cough syncope usually occurs in people with significant lung diseases and significant vascular diseases. He said that while he accepted that cough syncope can occur, it is not observed in middle aged people who otherwise have normal lungs, but who have an episode of pneumonia. Professor Naughton reiterated that generally when people have cough syncope, they suffer repeat episodes of it during a bout of pneumonia. It was unusual for a person to have a single episode of that phenomenon. Professor Naughton also noted that the applicant had no additional medical conditions such as dehydration or cerebrovascular disease, which were risk factors for people developing cough syncope. However, he did not consider that such conditions must exist in all cases of cough syncope.

27 Further in cross-examination, Professor Naughton expressed the view that the applicant might have an undiagnosed condition of sleep apnoea, because he was middle aged, was overweight, and had systemic hypertension. He said that based on those factors, statistically there was a 75 per cent probability of the applicant having undiagnosed sleep apnoea. Although he had not diagnosed the applicant to have that condition, he had a ‘strong suspicion’ to that effect, because the applicant would be at a ‘high risk’ of having sleep apnoea. Professor Naughton agreed that a person with sleep apnoea could fall asleep in the middle of a conversation while driving a vehicle on the road. He then said:

28 However, Professor Naughton agreed that there was no evidence that the applicant suffered fatigue on the day of the accident. He then agreed that there was a likelihood that the applicant had suffered from some form of syncopal episode. He said:

29 Professor Naughton then agreed that a syncopal episode, along those lines, would have happened very quickly, very suddenly, and may have lasted only several seconds. He said that in cases in which people have been monitored in simulated driving conditions, there only needs to be a period of one or two seconds of altered consciousness for a truck to go onto the wrong side of the road. He said ‘you only need very brief periods of altered conscious state ... to cause a truck to go onto the wrong side of the road, and so ... you can have micro sleeps ... but micro sleeps are usually less than a second’.

30 Professor Naughton agreed that ‘such an episode’ could have occurred in the present case, and that it would have happened very suddenly with a very quick recovery to lucidity. He stated that it was highly probable that the applicant would have had no idea that that was going to occur.

31 In re-examination, Professor Naughton reiterated that his unit had only had one convincing case of cough syncope, which had recurred in a patient with cystic fibrosis and vascular disease. He again repeated that a number of anecdotal cases had been misconstrued in the medical literature as cough syncope.

32 Dr Christopher Steinfort, a respiratory and sleep physician, gave evidence on behalf of the applicant. Dr Steinfort has practised in Geelong for over thirty years, and he had been Head of the Respiratory Medicine Department of the Geelong Hospital for some years. Dr Steinfort saw the applicant, and his brother Stephen, in his rooms in December 2017, and examined the applicant on that date. He noted that in the lead up to the accident, the applicant had been coughing violently and spitting phlegm out the window. His brother who had been talking to him, suspected something was wrong because he was not getting any response from the applicant. The applicant told him that he recalled looking up and seeing a white vehicle right in front of his truck.

33 Dr Steinfort considered that the applicant gave a classical description of an episode of cough syncope, which he defined as an episode of a brief loss of consciousness following violent coughing. He said that with cough syncope, there is a rapid return to lucidity after a short period. He considered that the description given to him was classical of the people who had undergone an episode of cough syncope. Dr Steinfort said that people who suffer from cough syncope are almost always male, they are often middle aged, and they have some history of either pre-existing lung disease or have been smoking. Such people developed very strong respiratory cough muscles, because they tend to cough a lot. Dr Steinfort explained that people with cough syncope are able to generate sudden rises in pressure within the chest and within the brain, which is transmitted through the carotid arteries and jugular veins into the cranium. He described cough syncope as a ‘brief cerebral knockout from a pressure pulse transmitted to the brain’. He said that the period of unconsciousness can be very brief, and generally from ‘a few seconds to about ten seconds’. He said that the literature described ‘perhaps a brief couple of seconds of confusion’, not knowing what was happening, but with a return of complete lucidity within ‘ten to fifteen to thirty seconds’. A person with cough syncope can remember vaguely what happened before the episode, but cannot remember anything while unconscious, and would be able to remember gaining consciousness. During an episode of cough syncope, there would be a complete loss of muscle power.

34 Dr Steinfort said that in the case of the applicant, the diagnosis of cough syncope was based on a history of violent coughing, brief loss of consciousness, and rapid return of consciousness. He said that people like the applicant, being male, middle aged, with a history of smoking, and being slightly obese, tend to have recurrent cough syncope. However, there is a distinct cohort of people who have only one or two episodes of it. Typically cough syncope occurs in people who have a well-practised cough with reasonable lung function. He disagreed with Professor Naughton that dehydration or cerebrovascular disease is a prerequisite for cough syncope. He stated that the literature does not indicate that a diagnosis of cough syncope is dependent upon a patient suffering more than one episode of the condition.

35 Dr Steinfort expressed the view that it was rare for a medical practitioner to see a cough syncope while it is occurring. He said that a diagnosis of cough syncope is a clinical diagnosis, based on a reported history of an episode of violent coughing, brief loss of consciousness and a rapid return to consciousness. He said that it had been described in the literature as a very brief episode and ‘typically it’s from a couple of seconds up to around ten seconds’.

36 In cross-examination, Dr Steinfort agreed that in his report dated 2 January 2018 (that is, three and a half months before the trial) he had defined cough syncope as a sudden loss of consciousness following single and multiple coughs usually lasting five to ten seconds. He agreed that that was ‘a little bit different’ to an episode of two seconds. Dr Steinfort explained that he had had the opportunity to read the literature in more detail, and that some of the articles say that an episode of ‘a few seconds’ was sufficient. He said that the period of reported loss of consciousness was quite variable, but it is very brief.

37 Dr Steinfort said that in his practice he had seen at least 60 patients with cough syncope, and that ‘none of them have had a stopwatch on them when they’ve blacked out’. He agreed that in his report of 2 January he said that he had seen at least 30 or 40 such patients. He explained that his computerised records had changed in 2008, and he has seen at least 20 such patients since that date. Dr Steinfort said that although he had only seen one patient suffering an episode of cough syncope, the diagnosis of that condition is based on a history of violent coughing, loss of consciousness, and rapid return to consciousness.

38 The prosecutor also put to Dr Steinfort that it was unsatisfactory that he had spoken to both the applicant and his brother Stephen in the same interview. He said that he could have spoken to them separately, but he wanted to obtain a medical history from both of them. He said that with cough syncope, the patient would be quite confused and would not know what happened.

39 On that point, we feel obliged to observe that that attack by the prosecutor, on the evidence of Dr Steinfort, was misconceived and unfair. Dr Steinfort interviewed the applicant, and his brother, in his capacity as a professional diagnostician, for the purpose of forming an opinion as to the applicant’s state of consciousness immediately before the collision. As such, his role was quite distinct from that of an investigator, who might be expected to interview relevant witnesses separately. Understandably, for the reasons that he gave, Dr Steinfort considered that, in the circumstances, he could make a more informed and accurate diagnosis if he spoke to the applicant and his brother together.

40 In support of ground 1, counsel for the applicant submitted that it was not open to the jury to reject, as a reasonable possibility, that at the time at which the applicant’s vehicle diverged onto the incorrect side of the road, the applicant had suffered an unforeseen and unexpected syncopal episode, so that at the material time his actions in driving the vehicle were neither conscious nor voluntary.

41 Counsel noted that the evidence of Stephen Ferguson was the essential basis of the defence proposition that the applicant, at that time, had suffered an episode of cough syncope. In particular, Stephen Ferguson had described how the applicant, following an episode of repetitive coughing, had suddenly become silent and unresponsive. Stephen Ferguson was called as a witness by the prosecution. At no point, did the prosecutor seek leave to cross-examine him, under s 38 of the Evidence Act 2008, on the basis that his evidence was unfavourable to the prosecution. Thus, his evidence was unchallenged. Counsel noted that the prosecutor, in his final address to the jury, sought to impugn his evidence, suggesting that Stephen Ferguson was ‘just a little bit eager to go in to bat for his brother’. Notwithstanding that proposition, counsel for the applicant submitted that it was not open to the jury to reject the unchallenged evidence of Stephen Ferguson.

42 Counsel further noted that although Professor Naughton had rejected the proposition that the applicant might have suffered an episode of cough syncope at the time of the collision, nevertheless, in cross-examination, he accepted that it was probable that the applicant had experienced a brief period of sudden loss of consciousness, which Professor Naughton ascribed to his undiagnosed underlying condition of sleep apnoea. Counsel noted that, as a result of that evidence, the case that was put on behalf of the prosecution materially changed in final address. In particular, the prosecutor contended to the jury that the applicant was guilty of gross negligence, on the basis that he had driven his vehicle when he had been fatigued and not in a fit condition to do so. However, counsel submitted, there was no evidence to support that proposition. Professor Naughton earlier expressed the view that the applicant had had sufficient sleep over the weekend and there was no suggestion that he was too tired to drive his vehicle safely.

43 Thus, counsel submitted, the evidence of both Professor Naughton and Dr Steinfort was that, immediately before the collision, the applicant had suffered a brief period of loss of consciousness. The evidence of Stephen Ferguson, which was not challenged, was an appropriate basis for the expression by both of those medical practitioners of their opinions. Accordingly, it was submitted, it was not open to the jury to be satisfied beyond reasonable doubt that, at the time of the accident, the applicant had not suffered a period of brief involuntary unconsciousness, so that at that time his driving was neither voluntary nor conscious.

44 In response, senior counsel for the respondent noted that the evidence of both of the expert witnesses, Professor Naughton and Dr Steinfort, that the applicant might have experienced a brief period of unconsciousness, was based on the evidence of Stephen Ferguson. Counsel submitted that that evidence was an insufficient basis for that conclusion. Stephen Ferguson said no more than that, following a period of coughing, the applicant went quiet. Counsel pointed out that, based on the evidence, that period of lack of communication may have been due to the applicant altering the position of his microphone, rather than to any loss of consciousness.

45 Counsel for the respondent further noted that the evidence of Professor Naughton, concerning the possibility that the applicant might have experienced a period of loss of consciousness, in effect ‘evolved’ during cross-examination. Having initially rejected such a proposition, Professor Naughton ultimately agreed with it in a manner which, it was submitted, was inconsistent with his earlier evidence. Thus, it was contended, it was open to the jury not to rely on the latter part of Professor Naughton’s evidence, but to prefer the evidence that he gave in chief, namely, that the applicant had not suffered a period of cough syncope immediately before the accident. Counsel further submitted that it was open to the jury to reject the evidence of Dr Steinfort. In particular, Dr Steinfort had altered his evidence as to the duration of the period of unconsciousness which ordinarily occurs in the case of a person who has suffered cough syncope. Counsel further noted that the diagnosis by Dr Steinfort was essentially based on the subjective account given to him by the applicant and Stephen Ferguson, and that there was no diagnostic or objective confirmation of the diagnosis. Counsel submitted that it was open to the jury to accept the proposition that the period of ‘lapse’ of either concentration or consciousness in this case — being at most 1.76 seconds — was inconsistent with the occurrence of an episode of cough syncope.

46 Accordingly, counsel submitted that it was open to the jury to be satisfied beyond reasonable doubt that at the time of the accident the applicant had not suffered a brief period of unconsciousness which had the effect that his action in driving the vehicle was neither conscious nor voluntary.

47 Ground 1 is based on s 276(1)(a) of the Criminal Procedure Act 2009. That section provides that the Court must allow an appeal against conviction if it is satisfied that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.

48 In order to succeed on that ground, the applicant must establish that it was not open to the jury to be satisfied, beyond reasonable doubt, of the guilt of the applicant on each of the charges.^[1]

49 In the context of the issues agitated on this application, the question which must be determined is whether it was open to the jury to be satisfied, beyond reasonable doubt, that the action of the applicant, in driving the vehicle immediately before the accident, was voluntary and conscious. In other words, the Court must be satisfied that it was not open to the jury to exclude the possibility that, immediately before the applicant’s vehicle diverged onto the incorrect side of the road, the applicant had suffered an episode of unexpected loss of consciousness of brief duration (no more than 1.76 seconds).

50 In determining that question, the appellate court is required to give full weight to the proposition that the jury was the body which is entrusted with the primary responsibility of determining the guilt or innocence of the accused person.^[2] In the present case, the jury had the opportunity to listen to and observe the principal witnesses relating to the issue in question, namely, Stephen Ferguson, Professor Naughton and Dr Steinfort. Nevertheless, and giving proper weight to that consideration, the appellate court is required to consider whether, based on the evidence, it is satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to the guilt of the applicant.^[3]

51 In order to address that issue, it is necessary to bear in mind the basis upon which the prosecution case was ultimately put to the jury. In essence, in his final address, the prosecutor appeared to contend that the applicant was guilty of culpable driving (and of the other charges on the indictment) on two bases. First, it was submitted, the applicant’s vehicle moved onto the incorrect side of the road, because, at the critical time shortly before the accident, the applicant was not paying proper attention to his driving, but was distracted by the telephone conversation that he was having with his brother Stephen. We interpolate that that basis seems to be consistent with the manner in which the prosecution, in its summary of opening, originally foreshadowed its case against the applicant. However, secondly, in final address, the prosecutor also submitted that the applicant was guilty, on the basis that he should not have been driving on that day, because he was too unwell to do so, as a result of which he had fallen asleep moments before the collision. In that respect, the prosecutor commenced his final address with the following introduction:

52 Following that introduction, the prosecutor, on four separate occasions in his address, put to the jury that the applicant was driving on that day when he should not have been doing so. On the last such occasion, the prosecutor said:

53 For that reason, in his charge to the jury, the judge told the jury that the prosecution put its case on two ‘interconnected bases’, namely, first, that the applicant drove his vehicle in a manner that fell well short of what is expected of reasonable drivers, and, secondly, that the applicant was aware that he was too ill to be driving, and that he should not have started driving that day or he should have ceased doing so before the accident.

54 In respect of that second aspect of the prosecution case, it is important to note that the prosecutor did not rely on, nor did the judge direct the jury concerning, s 318(2A) of the Crimes Act 1958, which provides that culpable driving by negligence, within s 318(2)(b) may be established by proving:

55 Thus, in order to be satisfied of the guilt of the applicant, on the head charge of culpable driving on the second basis relied on by the prosecution, the jury was required to be satisfied, beyond reasonable doubt, that the applicant was so unwell that, by driving his vehicle in that condition, he had failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case.

56 In our view, it is plain on the evidence that the jury could not have been reasonably satisfied as to that matter. Put simply, there was no evidence that the applicant was so unwell, and that he knew that he was so unwell, that by driving his vehicle on the day in question, and not ceasing driving before the accident, he failed ‘unjustifiably and to a gross degree’ to observe the requisite standard of care. Certainly, there was evidence, by both Dr Odell and Professor Naughton that, on the day of the accident, the applicant had an undiagnosed case of bibasal pneumonia. The evidence of Stephen Ferguson was that the applicant wanted to attend a doctor on that day, and that almost immediately before the accident he had a bout of uncontrolled coughing. However, there was no evidence which justified the conclusion that the applicant knew, or ought to have known, that he was so unwell that he was not in a fit condition to safely drive his vehicle.

57 Professor Naughton and Dr Odell both had access to the medical records of the Goulburn Valley Hospital. Neither medical practitioner expressed the view that those records revealed that the applicant’s medical condition was such that it had been unsafe for him to drive his vehicle on that day. Nor was there any other evidence, adduced by the prosecution, that the applicant himself felt or knew that he was too fatigued or unwell to be driving.

58 In his conversation with Stephen Ferguson, the applicant did say that he was feeling unwell, and that he wished to attend a doctor. However, there was no evidence from Stephen Ferguson that the applicant sounded fatigued or tired, or that, until immediately before the accident, the applicant was unable to maintain his concentration. Rather, it would seem, apart from having bouts of coughing, the applicant was able to maintain lucid and coherent conversations with Stephen Ferguson, both at 11.07 am, and immediately before the collision at 12.30 pm.

59 Professor Naughton noted, from the medical records, that on the night before the collision the applicant had gone to bed at about 9.00 pm and had awoken at 3.30 am. Professor Naughton estimated that on the day of the accident, he had driven for a period of about seven hours over a distance of 380 kilometres before the accident. He also noted that the applicant had slept on and off during the preceding weekend, during which he was not required to work. He expressed the view that the applicant probably had had sufficient sleep which would have allowed him to function as a truck driver.

60 In light of that evidence, it was not open to the jury to be satisfied of the guilt of the applicant on the charge of culpable driving (or on any of the other charges on the indictment), on the basis that he was so incapacitated by fatigue or illness on the day of the accident, that he knew, or ought to have known, that he was unfit to drive his vehicle, so that his conduct in driving the vehicle at the time of the accident constituted gross negligence within the meaning of s 318(2) of the Crimes Act. The evidence, as to that aspect of the prosecution case, fell well short of an appropriate basis upon which the jury could have been satisfied of the guilt of the applicant, on that basis, beyond reasonable doubt.

61 The critical question, then, is whether it was open to the jury to be satisfied, beyond reasonable doubt, of the guilt of the applicant on the first and primary basis relied on by the prosecution, namely, that in the short period before the accident, the applicant failed to pay proper attention to his driving, as a result of which his vehicle moved onto the incorrect side of the road in the path of oncoming traffic. In order to resolve that issue, it is necessary to determine whether it was open to the jury, on the basis of the evidence of Stephen Ferguson, Professor Naughton and Dr Steinfort, to reject, as a reasonable possibility, the hypothesis that in the critical moments that preceded the accident, the applicant had involuntarily lost consciousness, so that when his vehicle diverged onto the incorrect side of the road, he was neither consciously nor voluntarily driving his vehicle.

62 As a starting point, for considering that question, two points are clear from the evidence. First, as already mentioned, after the accident, the applicant was diagnosed to be suffering from bibasal bronchial pneumonia. The unchallenged evidence of Stephen Ferguson was that, in the immediate period that preceded the accident, the applicant had a sustained and prolonged bout of coughing, which ended with a sound like a wheeze.

63 Secondly, Stephen Ferguson gave evidence that immediately before the collision, the applicant ceased responding to questions put to him by Stephen in their telephone conversation. As a result, Stephen Ferguson became quite concerned, and asked him on more than one occasion ‘Geoff are you all right?’, to which he received no response.

64 In his final address, the prosecutor sought to discount the evidence of Stephen Ferguson, suggesting to the jury that he was ‘just a little bit eager to go into bat for his brother’. However, the prosecutor had not sought to challenge the evidence of Stephen Ferguson while he was in the witness box. In particular, the prosecutor did not apply to the judge for leave to cross-examine Stephen Ferguson under s 38 of the Evidence Act, on the basis that the evidence that he gave was unfavourable to the prosecution.

65 It is well established that, ordinarily, a prosecutor should not, in final address, attack the credit of a prosecution witness, without first having afforded that witness the opportunity to respond to the substance of the criticism.^[4] We will return to that matter, and other aspects of the prosecutor’s address, later in these reasons. However, importantly, in light of the failure of the prosecutor to seek to cross-examine Stephen Ferguson, his evidence was unchallenged. There was no evidence, in the trial, which contradicted it or cast doubt about any aspect of it. In those circumstances, it was not open to the jury to reject the critical evidence given by Stephen Ferguson, namely, that in the brief moments before the collision, he lost voice contact with the applicant, because the applicant did not respond to any of the questions put to him.

66 On this application, counsel for the respondent did not seek to counter that evidence by contending (as the prosecutor did at trial) that it was open to the jury to disbelieve, or not accept, the evidence of Stephen Ferguson as to the fact that he had lost voice contact with his brother immediately before the accident. Rather, counsel for the respondent contended that it was open to the jury to consider that the loss of contact occurred because the applicant had adjusted the microphone on his headset in order to expel some phlegm out the window. However, the evidence did not support that proposition.

67 Certainly at an earlier stage in their telephone conversation, the applicant had moved his microphone, in order to enable him to expectorate out the window. However, the evidence of Stephen Ferguson was that, after that had occurred, he could hear the applicant clearly. In particular, he heard the applicant start to cough, and to suffer a ‘very convulsive’ kind of coughing. It was at that point in time that the applicant stopped responding to Stephen Ferguson. After he had asked the applicant, more than once, if he was ‘all right’, Stephen then heard the applicant make an exclamation through the microphone. Based on that evidence, the loss of contact between the applicant and his brother could not be explained by the hypothesis relied on by counsel for the respondent on this application.

68 In essence, then, the jury had before it the unchallenged evidence of Stephen Ferguson that, in the moments before the collision, the applicant had a sustained bout of coughing, after which he became unresponsive to questions put to him by Stephen Ferguson. Those were the facts that were before both Professor Naughton and Dr Steinfort, and which were relevant to the views expressed by each of them.

69 As we have set out, Dr Steinfort expressed the view that, based on the description of the events given to him by both the applicant and Stephen Ferguson, the applicant had experienced what he described as a ‘classical’ episode of cough syncope. He based that opinion on three factors, namely, the violent coughing by the applicant immediately preceding the accident, his brief loss of consciousness, and his rapid return to consciousness. Dr Steinfort considered that the applicant came within the cohort of patients who tended to suffer recurrent cough syncope. His evidence was challenged in cross-examination, principally on the basis that he had altered his view as to the minimum duration of the period of loss of consciousness which occurs when a person experiences an episode of cough syncope. Further, Professor Naughton was firm in expressing the opinion that the applicant had not experienced a bout of cough syncope. Unlike Dr Steinfort, Professor Naughton considered that such a diagnosis could only be validly made in the case of a person who had a repeat bout of cough syncope. He also explained that the condition is quite rare, and that ordinarily it only occurs in people who have significant lung diseases or significant vascular diseases.

70 While only limited damage was occasioned to the evidence of Dr Steinfort by the prosecutor’s cross-examination, nevertheless it was, in our view, open to the jury to accept, as correct, the opinion of Professor Naughton, that the applicant had not suffered a bout of cough syncope in the moments preceding the collision. Counsel for the applicant subjected Professor Naughton to quite searching cross-examination in respect of that opinion, but nevertheless Professor Naughton consistently maintained his opinion that the applicant had not had an episode of cough syncope at the critical time.

71 However, that proposition does not conclude the issue raised on this application. For, as senior counsel for the respondent fairly conceded, Professor Naughton’s opinion, as to the state of the applicant’s consciousness in the moments preceding the accident evolved in the course of cross-examination. In particular, while Professor Naughton adhered to the position that the applicant had not suffered a bout of cough syncope, his evidence, when carefully analysed, did not, we consider, ultimately put in issue the reasonable possibility that, in the critical moments that preceded the collision, the applicant experienced a momentary bout of involuntary unconsciousness, which accounted for the movement of his vehicle onto the incorrect side of the road.

72 As we have noted, in evidence-in-chief, Professor Naughton expressed three relevant opinions. First, he rejected the proposition that the applicant had suffered a bout of cough syncope. Secondly, he noted that, as a result of the viral and bacterial infection suffered by the applicant, he could have experienced significant fatigue which might have impaired his capacity to drive. Thirdly, Professor Naughton ventured the opinion that the applicant might have unrecognised and undiagnosed sleep apnoea, which rendered him a probable twofold risk of being involved in a motor vehicle collision.

73 It was in cross-examination that those views evolved. As we have already set out, while rejecting the proposition that the applicant might have suffered cough syncope, Professor Naughton considered that there was a 75 per cent probability that the applicant had undiagnosed sleep apnoea. In the final part of his cross-examination, Professor Naughton elaborated on that point. He expressed the view that the short hiatus, in the telephone conversation between Stephen Ferguson and the applicant, might have been explicable by the applicant suddenly falling asleep. In particular, he agreed with the proposition that, if a person suffers from sleep apnoea, it is possible that they might fall asleep in the middle of a conversation while driving a truck on the road. Professor Naughton then raised the possibility that, as a result of suffering from a bacterial infection and against the background of sleep apnoea, the applicant was prone to fatigue. However, he accepted there was no evidence that the applicant had fatigue on that day. He then said:

74 Professor Naughton then reiterated the proposition that, as the applicant probably suffered from both pneumonia and sleep apnoea, he may have felt fatigued and thus had an episode of inattention. However, having, in that way, reverted to the hypothesis of fatigue, he then agreed that there was a likelihood that the applicant had suffered from a form of syncopal episode, which would have happened very suddenly, and might have lasted a few seconds. He said:

75 The cross-examination then culminated and concluded with the following passage (which we have earlier summarised):

76 Relevantly, the re-examination by the prosecutor was confined to the evidence given by Professor Naughton concerning his opinion that the applicant had not suffered an episode of cough syncope. Importantly, the prosecutor did not address, in re-examination, the point that emerged at the conclusion of the cross-examination of Professor Naughton, namely, that it was possible that, due to his undiagnosed condition of sleep apnoea, the applicant could have very suddenly lost consciousness by having a brief moment of sleep.

77 In view of that concession by Professor Naughton at the conclusion of his cross-examination, counsel for the respondent relied on the contention that, because Professor Naughton’s evidence had evolved in the witness box, it was open to the jury to prefer the earlier parts of the evidence given by him, and to not accept the concession made by him that the applicant may have suffered a bout of unconsciousness immediately before the collision. In essence, counsel submitted that it was open to the jury to reject the latter part of the evidence given by Professor Naughton in cross-examination, but to rely on the evidence that he had given earlier, in which he rejected the proposition that the applicant had suffered a bout of cough syncope immediately before the collision.

78 There are, we consider, two difficulties with that contention. First, that argument does not seem to have been put to the jury by the prosecutor in his final address. Rather, the prosecutor pointed to the evidence of Professor Naughton excluding the possibility that the applicant had suffered cough syncope. He did not address, in any relevant form, the evidence also given by Professor Naughton (in cross-examination) that the applicant might, nevertheless, have suffered a brief moment of unconsciousness as a result of his undiagnosed condition of sleep apnoea, combined with his underlying pneumonia.

79 Secondly, there was no basis upon which the jury might have taken a selective approach to the evidence of Professor Naughton. In particular, counsel for the respondent did not identify any factor or circumstance which might have entitled the jury to reach the conclusion that the concession, made by Professor Naughton in the latter part of his cross-examination, was invalid or incorrect. Nor was any such factor or circumstance evident to us. Indeed, Professor Naughton’s particular area of expertise was sleep apnoea. He estimated that approximately 50 per cent of his patients suffer from that condition. As such, he had a particular area of expert knowledge concerning the underlying condition which, he considered, it was probable the applicant suffered from, and the potential effects of that condition.

80 The following points, therefore, emerge from the matters that we have so far discussed. First, the jury had before it the unchallenged evidence of Stephen Ferguson that, in the moments before the collision, the applicant had become suddenly unresponsive to questions put to him. As his evidence was unchallenged, it was not open to the jury to ignore or reject it. The prosecutor at the trial was not able to point to any reason why Stephen Ferguson would have lost voice contact with the applicant at that time, independent of the applicant losing consciousness. The only explanation proffered on this application for the hiatus in communication was contradicted by the evidence of Stephen Ferguson.

81 Secondly, and most significantly, in the upshot, the evidence of each of the two experts amounted to the proposition that, for one medical reason or another, in the moments before the collision, there was a reasonable possibility that the applicant suffered a period of involuntary unconsciousness, which accounted for the sudden and unexplained movement of his vehicle onto the incorrect side of the road. In the end, the only disagreement, between Professor Naughton and Dr Steinfort, was as to the medical cause of that loss of consciousness. Dr Steinfort was of the view that the applicant had suffered an episode of cough syncope. Professor Naughton rejected that view. However, in the concluding part of his evidence under cross-examination, he accepted that it was quite possible that the applicant had suffered a sudden onset of unconsciousness, due to the combined effects of his undiagnosed sleep apnoea and pneumonia.

82 In light of that evidence, in our view, it was not open to the jury to exclude the reasonable possibility that, at the critical time at which the applicant’s vehicle moved onto the incorrect side of the road, the applicant had suffered a momentary and involuntary bout of unconsciousness, so that at the time of the alleged offences, his driving of the vehicle was neither conscious nor voluntary. In those circumstances, it follows that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused man on any of the charges against him.

83 It follows that the verdicts of the jury on each of the charges must be set aside, and in lieu of the convictions recorded against the applicant, judgment of acquittal on each charge be entered on the record.

84 Before departing from this appeal, we feel compelled to make the following observations concerning the final address of the prosecutor (who, we emphasise, was not counsel who appeared on behalf of the respondent on this application).

85 We have already noted that, in his address, the prosecutor sought to impugn the evidence of Stephen Ferguson on the basis that he was biased in favour of the applicant, without first having given Stephen Ferguson the opportunity to respond to such a proposition while in the witness box. In addition, and as a matter of particular concern, in his final address, the prosecutor used intemperate and inappropriate language in making the case for the prosecution.

86 At an early stage of his address, the prosecutor reminded the jury that the Commodore motor vehicle, with which the applicant’s vehicle collided, was driven by Mr Alan Cogger. He said (concerning Mr Cogger):

87 Having outlined some of the facts of the case to the jury, the prosecutor then noted that, based on the evidence of Dr Steinfort, the defence case was that the applicant had suffered a bout of cough syncope. He then asked rhetorically of the jury, ‘Are you going to fall for that?’. In the same context, he derisively referred to Dr Steinfort as ‘good old Dr Steinfort’. Having discounted the proposition that the applicant suffered cough syncope, the prosecutor referred to the fact that the applicant should not have been driving the vehicle in the condition that he was in, and while on the telephone, and remarked that that was ‘insane’. On another occasion, he said that the applicant should not have been driving, and that he ‘stuffed up in a big way on that corner’. At the conclusion of his address, the prosecutor told the jury that defence counsel would then address them, and he cautioned the jury ‘don’t be duped for a minute by this cough syncope or what [defence counsel] will try and grasp from Professor Naughton’s evidence‘.

88 As this Court has previously emphasised, a fundamental aspect of our criminal justice system is that a prosecutor, occupying the role as a ‘minister of justice’, has an important obligation to present the case on behalf of the prosecution in accordance with the principles of fairness to the accused.^[5] While it is appropriate for a prosecutor, in final address, to use the legitimate arts of advocacy, nevertheless the kind of language resorted to by the prosecutor in his final address clearly contravened the duty of the prosecutor to conduct the trial in accordance with the dictates of fairness. His resort to inflammatory and emotive language, of the kind indulged in by him, was, we consider, inappropriate, and a contravention of his responsibility to the court and to the system of justice.

89 For the reasons that we have discussed, we have concluded that it was not open to the jury, on the evidence in the trial, to be satisfied, beyond reasonable doubt, that at the time of each alleged offence, the actions of the applicant, in driving his vehicle, were voluntary and conscious. Accordingly, it was not open to the jury to be satisfied, beyond reasonable doubt, of the guilt of the applicant on the charges against him.

90 It follows that the proposed ground of appeal must succeed. Accordingly, we shall make orders in the following terms:

(3) The verdicts entered against the applicant, and the applicant’s convictions on each of the charges, and the sentences imposed on the applicant, are quashed.

(4) In lieu, judgment and verdicts of not guilty on each charge be entered on the record.

^[1] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, 405–6 [11]–[14] (French CJ, Gummow and Kiefel JJ); Pell v The Queen [2020] HCA 12, [43]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’).

^[4] Smith v The Queen [2018] VSCA 139, [76] (Whelan, Beach and McLeish JJA); Saddik v The Queen [2018] VSCA 249, [95]–[102] (Kaye and Niall JJA) (‘Saddik’); Ritchie (a pseudonym) v The Queen [2019] VSCA 202, [66] (Kaye and Weinberg JJA and Kidd AJA).

Supreme Court of Victoria - Court of Appeal

Ferguson v The Queen [2020] VSCA 166 (19 June 2020)