Ellis v Cordwell - [2014] TASSC 62

[2014] TASSC 62

COURT: SUPREME COURT OF TASMANIA

CITATION: Ellis v Cordwell [2014] TASSC 62

PARTIES:  ELLIS, Timothy James
  v
  CORDWELL, Kelly

FILE NO:  629/2014
DELIVERED ON:  3 December 2014
DELIVERED AT:  Hobart
HEARING DATES:  11, 12 November 2014
JUDGMENT OF:  Harper AJ

CATCHWORDS:

Traffic Law – Offences – Charge of causing death by negligent driving – Whether hypothesis postulated by the defence sufficient to raise a reasonable doubt about the prosecution case.

Traffic Act 1925 (Tas), s 32(2A).
Jiminez v The Queen (1992) 173 CLR 572; R v Kroon (1991) 52 A Crim R 15, considered.
Aust Dig Traffic Law [1005]

REPRESENTATION:

Counsel:
             Applicant:  J Holdenson QC, G Stevens
             Respondent:  D Pickering SC, R Munnings
Solicitors:
             Applicant:  E R Henry, Wherrett & Benjamin
             Respondent:  Tasmania Police Prosecution Services

Judgment Number: [2014] TASSC 62
Number of paragraphs: 88

Serial No 62/2014
File No 629/2014

TIMOTHY JAMES ELLIS v KELLY CORDWELL

REASONS FOR JUDGMENT HARPER AJ

3 December 2014

Modern means of road transport have transformed not only the way we live, but also the quality of our lives. But they are attended by hazards. When those hazards are encountered the results may be, and often are, tragic. This is such a case.
One of the recurring dangers is that of driver fatigue. This is, in a lifetime of driving, something which all drivers experience. All must guard against it. Sometimes, without the driver being at fault, fatigue induces sleep, and the vehicle being driven becomes an instrument of destruction and even death. In the absence of fault, it is of course not permissible for a court to conclude that a driver who falls asleep at the wheel must nevertheless have been negligent or otherwise blameworthy.
On the other hand, drivers who are aware that fatigue is or may be at play will commonly be negligent if they continue to drive. A passage from the judgement of King CJ in R v Kroon[1] is, in the circumstances of the present case, particularly apposite. King CJ there said:
"Every act of falling asleep at the wheel is preceded by a period during which the driver is awake and therefore, assuming the absence of involuntariness arising from other causes, responsible for his actions. If a driver who knows or ought to know that there is a significant risk of falling asleep at the wheel, continues to drive the vehicle, he is plainly driving without due care … 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."
[1] (1991) 52 A Crim R 15, 18.
This passage was cited with approval by Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ in Jiminez v The Queen[2]. I respectfully also agree with that portion of the judgment of King CJ which immediately follows. It was not reproduced in Jiminez, but it is in the present circumstances likewise particularly apposite. It reads:
"It is clear then that the question how sleep came upon an accused person and whether he had any premonition of it, so far from being irrelevant … is the crucial issue in determining whether the period of conscious and voluntary driving which preceded the sleep amounted to the offence or offences charged. There must be very few cases in which a normal healthy person falls asleep at the wheel of a vehicle without any prior warning. Such warning may come in a number of ways. There will be cases in which the driver ought to be aware of the risk by reason of the length of time during which he has driven without rest, the conditions under which he has driven, the atmosphere in the cabin, or his state of health. There will be cases in which he has direct warning from having experienced drowsiness. I should think that in almost every case a driver, before falling asleep, has a sensation of drowsiness at least for the brief period of time necessary to warn him to stop the vehicle."
[2] (1992) 173 CLR 572, 578.
The paragraph quoted from R v Kroon at [4] above concludes with a sentence which their Honours in Jiminez incorporated in the passages from Kroon to which they gave their approval. That sentence reads:
"The cases must be rare in which a driver who falls asleep can be exonerated of driving without due care at least in the moments preceding sleep."
On the other hand, "it does not necessarily follow that because a driver falls asleep he has had a sufficient warning to enable him to stop": Jiminez v The Queen at 581. If, however, there is to be an attribution of blame, the fault must arise before sleep intervenes. A driver when asleep is no longer in conscious or voluntary control of the vehicle being driven. Such a driver cannot, while in that state, be criminally responsible for any driving offence which has as an element the necessity of a conscious and voluntary exercise of will.
The judgments in Kroon and Jiminez seem to me to be especially helpful in resolving the issues which arise in the present case. It comes to the Supreme Court on a motion to review a decision of the Magistrates Court sitting in Hobart. On 25 June 2014, that court found the applicant guilty of a breach of s 32(2A) of the Traffic Act 1925, which provides that "A person must not cause the death of another person by driving a motor vehicle on a public street negligently."
The authorities must, of course, be considered in the context of the evidence – some of the most important of which is, in this case, beyond controversy. I will first recount in some detail that which was called by the prosecution, but without at this point in the judgment making any findings of fact. I will then examine the hypothesis which, according to the applicant, provides a reasonable explanation for the accident from which arose the charge that his negligent driving caused death. If this hypothesis is reasonable, it will prevent the prosecution from discharging its burden of proving guilt beyond reasonable doubt. I will next set out those findings of fact which, in my opinion, are beyond such doubt, and analyse the relevant submissions and the applicable law before coming to my ultimate conclusion.
Shortly after 6pm on Sunday, 24 March 2013, the applicant and Ms Natalia Pearn were driving in separate cars on the Midland Highway when both vehicles reached an incline known as Spring Hill. The applicant was in his dark blue Mercedes, and heading south towards Hobart. Ms Pearn was driving a white Toyota. She was travelling north towards Launceston. Spring Hill is roughly half-way between Oatlands to the north and Melton Mowbray to the south.
As the carriageway ascends the hill from the north it consists of three lanes. One, comprising the western portion of the carriageway, accommodates traffic travelling north. The other two, one of which is a passing lane, are for the use of southbound vehicles. Double white lines, incorporating "ripple strips" – materials which emit an audible sound when vehicle tyres pass over them – divide the western from the eastern portions of the carriageway. As the applicant's Mercedes ascended the hill, it occupied the passing lane.
In the vicinity of the brow of the hill, the two lanes over which southbound traffic is intended to travel merge into one. For a short distance the highway is of two lanes only, each of course dedicated to traffic travelling in the opposite direction of the other. Southbound traffic is thereafter restricted to the eastern-most lane as the Highway incorporates three lanes and proceeds down the hill and around a bend which sweeps to the right towards Hobart.
As the highway enters the bend from the south and begins the northward ascent of Spring Hill, it mirrors the climb from the other side. Two of the three lanes into which the carriageway is divided accommodate northbound traffic. One of these is a passing lane. They are divided from the single southbound lane by double lines with ripple strips. As her Toyota proceeded north towards the brow of Spring Hill, Ms Pearn was driving in the applicable passing lane.
The applicant continued his journey south. At a point shortly after southbound traffic became restricted to one lane (that being the lane on the eastern extremity of the carriageway) the Mercedes moved into the centre lane, which was reserved for vehicles travelling in the opposite direction. As the evidence, which will be examined in more detail later in this judgment, shows, the applicant failed to notice the diverging movement, failed to notice that he was travelling in the wrong lane, and failed to see the advancing Toyota. Approximately 350 metres north of the driveway entrance to a property known as "Redside", at a point where the GPS coordinates are 42° 26 south and 147° 15 east, the two cars collided. The driver's side of each took the full force of the impact. Ms Pearn was killed. Propelled by the force of the collision, the Mercedes spun in a westerly direction across the carriageway only to collide with another northbound vehicle – a black Commodore hauling a laden trailer.
An examination of the scene of the accident was undertaken by members of the Tasmania Police attached to its Crash Investigation Unit. Their evidence leaves no room for doubt about four features of the accident; and none of the four is presently contested. First, there were no signs of evasive action by either driver. Secondly, the Mercedes was straddling the double lines which separate that portion of the carriageway dedicated to southbound, and that portion dedicated to northbound, traffic. Thirdly, the Toyota was wholly within the passing lane for traffic heading north. Finally, the speed of each vehicle immediately before impact was much the same: 108 kilometres per hour.
The applicant suffered severe injuries to his lower body. There is no evidence presently before the Court of any injury which might affect either his memory or his intellectual capacity. (His wife, Ms Anita Smith, who was a passenger, was also severely injured.)
Of course, the applicant and Ms Pearn were not the only travellers in the vicinity of Spring Hill on the evening of 24 March 2013. Some of those in that locality at that time subsequently gave evidence in the Magistrates Court proceedings which form the subject of this motion to review.
One of these witnesses was Tanya Rayner, who told the magistrate that she was following a white Subaru with government licence plates while driving south up Spring Hill in the easternmost lane of the Midland Highway. The passing lane for southbound traffic was on her right. She remembered "almost getting to the end of that overtaking lane"[3] and almost to the top of Spring Hill when both her car and the Subaru were overtaken by a dark coloured car (she thought it was black). It then passed out of sight, only to come into view again about two minutes later as one of three vehicles which had been involved in a collision.
[3] T. 164
The driver of the Subaru was Elizabeth Murfett. She gave evidence that she had no memory of seeing the Mercedes pass her vehicle (something which had been observed by Ms Rayner) but did notice it ahead of the Subaru at the summit of Spring Hill, travelling in the centre lane of the Highway. She initially maintained that, when first noticed by her, the Mercedes correctly occupied the lane which at that point was the passing lane for southbound traffic. Under cross-examination, however, she said that the applicant's car was, when first noticed by her, travelling south within a portion of the carriageway reserved for vehicles travelling north. Sensing danger, she increased the distance between the two vehicles by slowing from about 100-110 kilometres per hour to about 60 kilometres per hour. For the next 30 seconds to a minute she observed the Mercedes as it "completely remained in that lane in a very controlled manner as if that was the correct lane to drive [in] and continued down."[4]
[4] T. 127-128.
In cross-examination, Ms Murfett agreed that she had "come a long way down Spring Hill" before she noticed the Mercedes.[5] But she was not challenged about her estimate of "30 seconds to a minute" during which she had that vehicle under observation. She lost sight of it when it entered a bend in the road. She next saw it after it had been involved in the collision.
[5] T. 138.
Ms Jane Bird was a passenger in the Subaru driven by Ms Murfett. She was asked, during the course of her evidence-in-chief, "what you observed when you started coming [down] the southern side of Spring Hill ...?" She replied: "We were driving along and I became aware … of a blue vehicle … about 100 metres in front of us". Then, having identified that vehicle as the Mercedes later seen at the site of a collision a little further to the south, the following exchange took place:
"Q: And what's the first thing you saw of that blue Mercedes? What was it actually doing?
A: Well the reason I noticed it was that it was moving into the middle lane. So there were three lanes, two going north, one going south, and it manoeuvred from the southern lane into the middle lane, which was the overtaking lane for the northern …
…
Q: Could you see any reason why it needed to move into the centre lane? For example, was there any obstacle like a box or an animal or anything that was on the southern lane that you would need to steer … away from?
A: There was absolutely nothing that I could see that would have made that manoeuvre necessary.
Q: What happened once it then moved into that centre lane?
A: The car stayed there and it maintained an equal distant position within that lane, even though obviously it wasn't perfectly straight for a considerable distance of time.
Q: How long do you think it was that it remained in that centre lane from what you could see during that time that you were still watching it and before it went out of sight?
A: Yes, well … probably it was … a minute to a minute and a half.
Q: Do you have any idea how long in distance that period of time was?
A: I think it seemed well over half a kilometre. I think that it was more like 700 metres.
Q: Did you observe the car, the blue Mercedes, at any time go back into the southern lane, the correct side of the road?
A: No. At no point did it waiver or move course. It stayed smoothly and quite controlled in the middle lane[6]."
[6] T. 110-111.
Ms Bird later added that, because the Mercedes "maintained its position in that middle lane and started to approach the sweeping right hand bend at the bottom", she "became very concerned" and "thought something terrible was going to happen".[7] As a result of remarks between driver and passenger, Ms Murfett decelerated and the Subaru reduced speed accordingly. Ms Bird told the magistrate that she lost sight of the Mercedes "as it went round … the sweeping right hand bend at the bottom of the hill."[8]
[7] T. 112.
[8] T. 113.
Ms Bird was cross-examined. As with Ms Murfett, however, it was not suggested to her that she had given false evidence about the lane in which she placed the Mercedes. Again, too, her estimates of neither the distance, nor the time, during which the Mercedes was travelling in the centre lane were the subject of questioning.
At the conclusion of the prosecution case, several findings were inevitable. First that the applicant had converged upon the incorrect lane of the Midland Highway at Spring Hill. Secondly, that his Mercedes had travelled south in that lane for something in the order of 30 seconds or more before being lost to sight. (It is however possible that, while unseen, it returned to the correct lane.) But (and this is the third inevitable finding) immediately before the collision which resulted in Ms Pearn's death, the Mercedes was straddling the double lines which separated the applicant's correct lane from those dedicated to traffic travelling north, the direction in which Ms Pearn was heading. She was, moreover, doing so in her appropriate lane. Finally, the accident scene contained nothing to suggest that either driver took evasive action.
If the applicant were to escape the conclusion that his driving was in breach of s 32A of the Traffic Act, he was obliged to provide, or point to, an explanation sufficient to throw a reasonable doubt on the prosecution case. In the absence of such an explanation, there would be no defence to the charge because there would be nothing to counter the necessary, indeed inevitable, inference: that is, that the applicant had allowed the Mercedes to enter and remain in the incorrect lane; and that he had therefore driven negligently. As Underwood J (as he then was) said in Langan v White:[9]
"[T]he facts and circumstances of the case may be such that an inference of negligence is the only one reasonably open unless an explanation is offered; ie where a defendant offers no explanation that may be sufficient to convert a prima facie case into one proved beyond reasonable doubt."
[9] [2006] TASSC 83 [12] (19 October 2006)
The applicant did attempt an explanation. The question is whether it was sufficient to throw a reasonable doubt on the prosecution case. As senior counsel for the applicant correctly conceded in his closing submissions, the defence hypothesis "mustn't be obviously fanciful or impossible … it's got to be credible."[10]
[10] T. 398.
Both sides made opening statements immediately after the hearing in the Magistrates Court began. In his opening, senior counsel for the prosecution foreshadowed the possibility that the applicant would give evidence during which he (the applicant) would tell the court that he suffered from sleep apnoea. The prosecutor anticipated that, in these circumstances, the prosecution would be required to rebut the hypothesis that the applicant "… was effectively not conscious and voluntary in his driving, that is to say, that he [fell] asleep without warning."[11] It was in this context that, in briefly outlining the case to be presented on behalf of the applicant, his senior counsel said:
"Your Honour ultimately we will suggest that the hypothesis which cannot be excluded on the facts of this case is that Mr Ellis's vehicle moved to the position it did, or remained in the position it did I should say, consistent with him having significantly impaired perception and loss of consciousness immediately before impact."[12]
[11] T.4.
[12] T.6.
In that short passage, counsel introduced an aspect of the defence case to which the prosecution opening did not refer: the proposition that, before falling asleep, the applicant's perception was "significantly impaired". But the passage is important for another reason as well. In it, counsel slips between what appear to be internally inconsistent aspects of the defence hypothesis. On the one hand, he said that the applicant's Mercedes remained in a particular position within the carriageway of the Midland Highway for a period during which the applicant's perception was "significantly impaired". On the other, he could be taken as saying that both the impairment and the "loss of consciousness" occurred "immediately before impact" and were therefore contemporaneous. Yet, if the two states of mind are different – and, of course, they are – then they could not both occur "immediately" before impact. Perhaps counsel intended to conclude this passage by saying:
"…consistent with him having significantly impaired perception followed by loss of consciousness immediately before impact."
Despite the looseness of expression, it must be supposed that the hypothesis upon which counsel intended to rely in the court below was that, at some undefined point before impact, the applicant became drowsy and, as a result, his perception became impaired; while, immediately before impact, he fell completely asleep.
When asked by me what the applicant's hypothesis was, his senior counsel replied:
"The applicant, without experiencing any warning, fell asleep over a short period of time which immediately preceded or was, to use the language of Jiminez, contemporaneous with the collision. Whilst in the process or continuum of falling asleep the applicant's perception was impaired. In that state of impairment the applicant made a mistake concerning the line markings on the road, thereby … moving into or in the incorrect lane and still whilst in that impaired state, by reason … of a mistake as to the line markings, remaining within that incorrect lane. Having not experienced any warning the applicant was mistaken in realising that he should not be driving, by reason of the onset of sleep – and, as I say, the applicant then fell asleep shortly prior to the collision, that is immediately preceding or contemporaneous with the collision or a bit before that."

There is an inherent practical difficulty with this hypothesis. It is one thing to say that a person's perception is impaired when impending sleep intrudes. It is another to say that that impairment is such as to overwhelm either the capacity to distinguish between the southbound and northbound lanes of a three lane carriageway, or the capacity to discontinue driving, or both. An outcome of this kind would be most unusual. I turn again to the ordinary experience of life as relevantly described by King CJ in the passages from his Honour's judgment in Kroon which I quoted at [3] and [5] above and which were approved by the High Court in Jiminez:
"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 … If the driver does fall asleep and death or bodily injury results, the driving prior to the falling asleep is sufficiently contemporaneous with the death or bodily injury … to be regarded as the cause of the death or bodily injury.
…
The cases must be rare in which a driver who falls asleep can be exonerated of driving without due care at least in the moments preceding sleep."
As articulated before me by senior counsel for the applicant, his hypothesis brings the applicant close to, indeed perhaps within, those rare cases to which King CJ referred. In order to make the hypothesis sufficient to prevent satisfaction beyond reasonable doubt of the credibility of the prosecution case, however, it must (given the authority of Kroon and Jiminez) include the proposition that the applicant experienced an especially problematic warning of impending sleep – and this over a short period of time before sleep itself intruded. The hypothesis must, in other words, include the proposition that the applicant's perception during that short period of drowsiness was so impaired that he could not even perceive the impending danger of sleep, and so was incapable of (a) realising that he had made a mistake in crossing double lines and therefore entering onto a forbidden portion of the carriageway, and (b) making the decision to cease to drive. I am prepared to read senior counsel's hypothesis as meeting these difficulties.
The mere articulation of a theoretically sound hypothesis does not, however, make it "reasonable" in the factual context of a defence to a criminal charge. It must also have some basis in reality. If credible evidence points unequivocally towards guilt, and the remaining evidence either lacks credibility or is of very minor relevance, so as to leave no reasonable doubt that an accused is guilty, the fact that the accused has posited an hypothesis consistent with innocence but devoid of evidentiary credibility will not turn the tables.
All the evidence is that the applicant was not drowsy at any time relevant to this collision. Indeed, in the course of making a "no case" submission at the conclusion of the prosecution case in the Magistrates Court proceedings, senior counsel for the applicant submitted that "[t]here is no allegation or evidence that Mr Ellis was drowsy before sleep overtook him in the sense that he had any warning of falling asleep beforehand."[13]
[13] T. 313.
Indeed there was not. Ms Smith had given evidence of conversations with the applicant at about 6 o'clock on 24 March 2013, and of him assisting her to eject CDs from the Mercedes' CD holder. He was also interested in obtaining the scores from the Sheffield Shield cricket final then being played in Hobart, and "we did consider putting a podcast on after he'd got the cricket scores but we hadn't really progressed to any stage of what was coming next after the cricket."[14] Asked whether she had any concerns about the applicant being tired or fatigued, Ms Smith said that she had none. Clearly, he was at all times about which she spoke, awake and not giving any sign of undue fatigue, although he had at one point near Campbell Town remarked that "he was sick of driving but he was happy to carry on".[15]
[14] T. 16.
[15] T. 13.
Under cross-examination, Ms Smith agreed that, after the accident, the applicant "appeared … to be quite coherent and aware of what was going on around him".[16]
[16] T. 24
One of the witnesses called to give evidence as an expert was Dr Hugh Mestitz. He is a respiratory and sleep physician. The applicant, who suffers from sleep apnoea, was one of his patients; and it was for treatment for this condition that the applicant was referred to the doctor. The first consultation occurred on 24 October 2011, and the last on 6 January 2012. The applicant was advised to use, each night and for an indefinite period thereafter, a device known as a "CPAP" device. He was given a letter to the effect that he was fit to drive provided that that device was employed as directed.
In his evidence-in-chief in the Magistrates Court, Dr Mestitz said that "going to sleep without any warning is not a feature of the obstructive sleep apnoea syndrome."[17] He agreed that "there is a continuum starting with sleep onset along a scale towards finally sleep" and added that during that continuum a person's perceptions and ability to react will be impaired, as will the ability to make judgments. In his opinion, "between complete consciousness and awareness and that happening there is often a time … in and out of awareness, and I think that the length of time that that can go on varies greatly and is partly dependent on the will to remain alert."[18]
[17] T. 235.
[18] T. 242-243 (my emphasis).
A lengthy cross-examination followed. During it, Dr Mestitz was asked whether "the fact that Mr Ellis was travelling down a hill and was able to maintain steering input, and on various occasions around the corner and eventually met the Toyota Corolla head on, [was] was consistent with there having been a gradual onset and finally complete sleep". He answered: "I believe that is a scenario that's plausible".[19]
[19] T. 248.
I note the reference in the question to "a gradual onset and finally complete sleep." By contrast, the hypothesis propounded at the hearing before me was that, "without experiencing any warning [the applicant] fell asleep over a short period of time".
The difference is significant. In re-examination, Dr Mestitz expressed the opinion that a "degree of sleepiness, fatigue, lack of concentration, would be apparent, and there is an opportunity to do something about it."[20] He added that "sleep is irresistible and … seductive, and I think people do sometimes have difficulty you know acting rationally and saying 'right I know I need to be doing something else right now'."
[20] T. 249 (my emphasis).
This is as close as Dr Mestitz came anywhere in his evidence to endorsing the proposition that perceptions which are impaired by oncoming sleep may remove the ability to appreciate that driving must be discontinued. It is to be contrasted with his evidence about the significance of the will in remaining awake, and about there being an opportunity "to do something about" the effect of drowsiness. He said nothing about the effect of fatigue on one's ability to appreciate the presence of double lines between the lanes of a major road.
In the hearing before me, reliance was placed on the evidence given by Dr Mestitz to the effect that a person who was asleep would not react to, or have any memory of, an oncoming vehicle with which a collision was about to occur. This is no more than a statement of the obvious. The fact that the applicant had no memory of the collision and took no steps to avoid it is of course consistent with his being asleep at the time. It is also consistent with a negligent failure to drive with due care.
The applicant through his counsel argued that the magistrate adopted one conclusion – that sleep was not a factor, whereas negligence was – when another equally plausible (or at least perfectly reasonable) conclusion, consistent with innocence, was open. The lack of any sign that the applicant took evasive action, or attempted to apply the brakes of the Mercedes, is consistent with him being distracted in circumstances which speak clearly of negligence. But it is also consistent with him having fallen asleep before the collision. So much cannot be in dispute. In these circumstances, it was submitted on behalf of the applicant, his Honour was required to hold that the prosecution had failed. If an inference consistent with innocence (that is, that the applicant fell asleep before the collision) is reasonably open, the tribunal of fact cannot be satisfied beyond reasonable doubt of the guilt of the accused. And this is so even if another, more powerful, inference points towards guilt.
On the other hand, a theory which in itself may be plausible – when, for example, it is put to an expert witness without regard to the entirety of the relevant circumstances - may be untenable when examined in the light of all the relevant facts. In this context, and when viewed against his own evidence, to which I shall shortly turn, the problem for the applicant is twofold. First, the evidence is heavily weighted against the inference that he fell asleep. Secondly, even if he was asleep immediately before the collision, the evidence is conclusive that he was not beforehand affected by drowsiness or fatigue, let alone affected to the extent that he could not appreciate that he had driven into the incorrect lane or, appreciating that fact, was so much under the influence of fatigue that he could not take appropriate mitigating action.
The person who could give the best evidence about how tiredness might have affected his driving at the relevant time is the applicant himself. He first spoke about these matters when, on his initiative, he was interviewed by police on 26 March 2013. He was then a patient in the Royal Hobart Hospital, and was shortly to undergo surgery. When asked if he consented to be interviewed under these conditions, he replied that he had initiated the process by asking "to get the interview done".
The record of the interview, which is now available on a DVD, was tendered in evidence before his Honour.
The subject of the applicant's sleep apnoea, and his susceptibility to drowsiness, was raised. He was asked to identify the symptoms which "you recognise and then experience as needing to sleep".[21] He replied, so far as is presently relevant:
"Your eyes get droopy, you feel tired, it's a little bit different when you're going to sleep naturally, it's a little more overpowering, I suppose. It becomes a bit more." [22]
[21] Transcript of the record of interview, 13.
[22] Ibid, 29.
The applicant was also asked whether, following his use of the CPAP device "there have been any episodes of your suffering sleep apnoea whilst driving". He responded by saying that he was not aware of any. He was then asked whether "with sleep apnoea" he could continue an activity such as playing cards "if that sleep apnoea comes upon you". He responded:
"No … I don't think you'd just go to sleep playing cards unless you had really had it but you wouldn't function very well ... but the times when you're suddenly asleep … maybe at your desk, something's boring, maybe you're possibly driving and something's … not galvanising so that's what happens."[23]
[23] Ibid.
He did not say that this is what happened whilst driving in the vicinity of Spring Hill two days before. Nor was he asked that question, and nor did he advert to that circumstance during his examination-in-chief in the court below. But it was put to him during the course of the interview that he had been observed proceeding down the hill in the wrong lane.[24] That, he replied "is news to me"; and to the next question, which was: "You've got no recollection of that?" he responded: "No".[25] A little later in the interview, when he was asked whether he had anything to say about having been seen driving in the incorrect carriageway, he answered:
"No, no nothing I can say. I don't recall it. There's no reason for me to have unless … I'm either not fully conscious for some reason or I've somehow got confused on the road markings. Certainly I'm not trying to cut a corner [or] to go faster or anything."[26]
[24] Ibid, 30
[25] Ibid, 31.
[26] Ibid, 35.
He did not elaborate, and did not otherwise suggest that he was at that time (to adapt the words used by counsel in formulating the hypothesis upon which the applicant relies) in the process or continuum of falling asleep. He was asked directly whether he thought that he was in a conscious state "at the time of the crash" and responded by saying that he did not know whether he was or was not.
It is significant that he added: "[M]aybe I wasn't conscious. I don't know but I certainly … can't make it out [.] I wasn't feeling drowsy."[27] He was then asked: "And had you felt drowsy what would you have done?" His reply was: "I'd have pulled over."[28] A slightly later question was: "Do you think you just may have fallen asleep?"[29] In response, the applicant said:
"It's possible. … [I]n one way I don't like to put it as an explanation because I don't know whether I did or I didn't and you know obviously it sounds oh you know lawyers smart arse thing but I do have a history of it. I thought I'd overcome it. I have no other explanation as to why I wouldn't be on the right side of the road."[30]
[27] Ibid (my emphasis).
[28] Ibid.
[29] Ibid, 36.
[30] Ibid, 37.
When asked during the interview whether he had discussed the accident with his wife, the applicant said that he had, although "very briefly".[31] He added, among other things, that: "She says that she was working on the CD's and that's probably right; I don't have a distinct recollection of her doing that and I turned on the cricket and that would have been it." [32]
[31] Ibid, 41.
[32] Ibid.
His examination-in-chief during the hearing at first instance was brief. He said that what happened was "a mystery", and when referring to his recollection of it said:
"It comes to me in darkness when I - and this is a vivid memory that I still retain. Everything is darkness. There's a whistling noise. A very brief [noise] like you'd hear a missile landing in a TV show, just like that. Then there is an enormous noise, clearly metallic, and I don't know whether I felt impact – well I felt impact but directionally I don't know."[33]
[33] T. 319.
The description continued in that vein. The applicant said nothing about the moments leading up to the point of impact. Neither his state of mind, nor his tiredness or lack of it, nor any aspect of his driving, was mentioned. The applicant came nearest to this central issue when, after recounting a conversation following the accident during which he "may well" have told a policeman that he thought he was in the correct lane, he was asked by the magistrate why he thought that. The applicant responded:
"That was my last conscious thought. I had no reason not to be in that lane. I knew that piece of road extremely well. I have – I acknowledge never [sic] being on the incorrect lane down that stretch of road. I had … no reason, no need, to be, I couldn't imagine that I would have been. And my last memory seemed to be, although not of that piece of road, of being on the correct side of the road."
It is difficult to know what to make of this passage. The reference to "my last conscious thought" could be very important. It could be a reference to the sudden realisation, which came to the applicant in a mere fraction of time before the accident happened, that the Mercedes and Toyota were about to collide. If this reflects the reality of the applicant's state of mind in that moment, then it follows that the applicant was not asleep at that time. Consistently with this hypothesis, the applicant perhaps intended to tell his Honour that he had never before during "thousands" of journeys between Hobart and Launceston been in the incorrect lane down that stretch of road. This would explain his surprise when, in a momentary realisation of an impending disaster, he seized upon the truth that he was not on that part of the carriageway on which he had thought he was travelling.
The inclusion of the phrase "I acknowledge never being on the incorrect lane down that stretch of road" is puzzling. One does not usually "acknowledge" never being in the wrong. And this is not one of those unusual cases when by some quirk of circumstance such acknowledgment might be called for.
The "acknowledgment" makes sense, however, if the inclusion of the word "never" was a mistake in transcription. The possibility that such a mistake was made is strengthened by the fact that, on 28 March 2013, the applicant wrote a letter to Ms Pearn's family in which he said, among other things, that he fully accepted that the Mercedes was in the Toyota's lane "and not [in] the lane it ought to have been [in]." He added that he had "no memory of how or why that came to be."
My final step in the analysis of this passage from the applicant's evidence-in-chief concentrates upon its concluding sentence: "And my last memory seemed to be, although not of that piece of road, of being on the correct side of the road." This could be consistent with the applicant having fallen asleep some distance from the point of collision. On the other hand, no vehicle travels for any distance, especially not at highway speed – which, as all the evidence demonstrates, was the speed of the Mercedes – with its driver otherwise than awake. The applicant might contend that he was awake, albeit drowsy. That would leave for explanation how it was that he was in that state without having any memory of it. It would also leave for explanation how he distinguishes himself from the driver categorised by King CJ in Kroon as one who knows or ought to know that there is a significant risk of falling asleep at the wheel. He might contend, as in fact he does, that he was so overcome by drowsiness as to be unable to decide to pull over, or – being capable of making that decision – being unable to give effect to it.
Full consideration of these matters must of course include whatever relevant answers were given by the applicant under cross-examination. It is these to which I now turn.
The applicant told the magistrate that, before being diagnosed with sleep apnoea, he had once fallen asleep whilst driving. As far as the applicant could recall, this had been preceded by him being conscious of feeling drowsy. On other similar occasions he had "pulled over and rested".[34]
[34] T. 322.
This experience, the applicant agreed, made him aware of the dangers of falling asleep behind the wheel. That awareness was complemented by the applicant's involvement in a submission to the Tasmanian Law Reform Institute when the Institute was examining the criminal liability of drivers who, having fallen asleep, cause death or serious injury. Accordingly, as the applicant told the magistrate: "Drowsy I shouldn't be driving."[35] He distinguished for this purpose between being tired, being fatigued, being drowsy and being asleep.[36] He would have "pulled over" on 24 March 2013 had he "had any concerns that [he] was in danger of going to sleep".[37]
[35] T. 332.
[36] T. 333.
[37] T. 339.
The applicant was asked about "sometimes sharing the driving" with his wife.[38] He responded:
"I like to be the driver, especially if it's my car. But when we would change driving it would be because I was feeling sleepy."
[38] T. 328.
There was no change of driving on this occasion. The applicant told the magistrate that as far as he could recall he "felt okay" on 24 March 2013.[39] Indeed, he had no distinct memory of being tired – and none of feeling drowsy either. When it was put to the applicant that he was not "concerned about there being any danger that you would fall asleep because you were experiencing no signs", he replied: "No, I was experiencing no signs of sleepiness."
[39] T. 330.

The evidence called in the Magistrates Court as recounted above was such as to make certain conclusions inevitable. It is now appropriate that I set out my findings.
The applicant and his wife were driving south towards Hobart on the Midland Highway when, at some time between about 6pm and 6.15pm on 24 March 2013, they reached a rise in the road known as Spring Hill. Shortly after crossing the brow of the hill, the Mercedes, with the applicant behind the wheel, moved west from the single carriageway allocated to traffic travelling south to the easterly portion of the dual carriageway allocated to traffic travelling north. It continued steadily in that incorrect carriageway at least until the highway entered a sweeping bend towards the west (to the right, for southbound vehicles). This section of its journey covered a distance estimated by Jane Bird at about 700 metres. This estimate is for relevant purposes consistent with the applicant's speed of over 100 kilometres per hour and the fact (as I find) that it took at least 26 seconds to accomplish. Because the Mercedes was out of observation once it entered the bend, there is no evidence about the carriageway in which it was travelling after it was lost to the sight of a following Subaru driven by Elizabeth Murfett and in which Jane Bird was a passenger. Nevertheless, it is clear that, when the Mercedes collided with a northbound Toyota driven by Natalia Pearn, the Toyota was squarely (and therefore correctly) within the passing lane for northbound traffic and the Mercedes was straddling the double lines dividing southbound from northbound traffic.
These findings establish a prima facie case of negligence against the applicant. His response is to submit that there is an alternative hypothesis; that this alternative is reasonable; and – that being so – the Court is precluded from reaching a finding of guilt.
The applicant's hypothesis is that, without experiencing any warning, he fell asleep over a short space of time. This immediately preceded the collision, or was contemporaneous with it. Whilst in the process or continuum of falling asleep the applicant's perception was impaired. It was while in this state of impairment that the applicant made a mistake concerning the line markings on the road. Under the influence of that mistake he moved into the incorrect lane.
There is no evidence to support this hypothesis. It is inconsistent with driving for over half a kilometre (at least) in the wrong lane and around a sweeping bend. The applicant himself says that, while he believes he would have been tired, he "can't remember" that he was.[40] He distinguishes tiredness from being drowsy or fatigued. He was, he said, aware of the dangers of falling asleep whilst driving, but was not feeling drowsy (and, consistently with this, has no memory of feeling drowsy) on the occasion in question. Rather, he was feeling "okay" at that time. On other occasions when he has experienced drowsiness he has retained a memory of it, and has pulled over. He did not pull over on this occasion but, had these matters been of concern, he would have followed his usual practice.
[40] T. 327
Nor is there any evidence to support that part of the hypothesis which posits that the applicant was fighting and losing a battle with fatigue, and was in the meantime deprived of the power to control – or cease – his driving, save to maintain the Mercedes in one lane for a considerable portion of the relevant part of the journey, including a sweeping bend.
There is also evidence which refutes the applicant's hypothesis. The distance and speed of travel between the entry into the incorrect lane and the point of collision, a distance in large part traversed by the applicant's Mercedes whilst being observed by Elizabeth Murfett and Jane Bird travelling in a "very controlled manner" (Ms Murfett) or "smoothly and quite controlled" (Ms Bird), are incompatible with a driver who was asleep.
The applicant submits that even without any steering input from him the Mercedes would have remained (and did remain) within the passing lane for northbound traffic as it continued south down Spring Hill and around the bend. However, this notion is inconsistent with the applicant having (in the words of the applicant's hypothesis) "[fallen] asleep over a short period of time which immediately preceded or was … contemporaneous with the collision"; and in any event the magistrate was entitled to accept police evidence that steering input is necessary if such consistent progress is to be maintained within an individual traffic lane – in this case, the lane being dedicated to vehicles travelling north, and which have yet to surmount the brow of Spring Hill.
My analysis as set out in this judgment does not replicate that of either party in the lower court, or on the hearing of the notice to review. The latter document sets out a large number of grounds of review, some of which were later abandoned.
The first set of grounds appear under the heading "Causation". They are to the effect that his Honour erred in taking into account on this issue the entire course of the applicant's driving, from a time when the Mercedes and the Toyota were up to three kilometres apart. But the magistrate was bound to consider that course of driving. I accept that it was not, at least in its entirety, relevant to causation; but it was relevant to the question of the applicant's degree of consciousness. That is how his Honour used it.
The applicant next contends that the magistrate erred in accepting that a "course of negligence" was capable of founding liability under the Traffic Act. In the circumstances of this case, the negligence continued for so long as the applicant drove in the incorrect lane. His Honour was bound to describe the applicant's driving in the way he did, because that was a necessary aspect of an accurate description of the circumstances of the accident. There was in my opinion no error in his Honour's consideration of it, and no attempt to improperly link it with liability under the legislation.
His Honour applied Jiminez v The Queen and R v Kroon. The applicant contends, under the heading "Issues relating to knowledge of tiredness", that the magistrate was wrong to do so. I disagree. Both cases are, in my opinion, applicable to the present circumstances. And insofar as these grounds refer to a failure by the prosecution to particularise its case, the answer is that it is not for the prosecution to second guess the defence by pleading issues upon which the defence may or may not rely. These issues only become relevant to the proper disposition of a case of this kind after they have been raised not by the prosecution (they forming no part of the elements of the offence) but by an accused who intends to rely upon them. Once they are raised they must of course be dealt with. But if, having been raised, the proper conclusion is that they do not support an hypothesis which is reasonable and which is consistent with innocence – in other words, that they do not raise a reasonable doubt – they cannot in themselves stand in the way of the prosecution proving its case to the requisite standard.
Senior counsel for the applicant submitted that, although the tribunal of fact cannot engage in groundless speculation, it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence, or to prove particular facts that would tend to support such an inference. If the tribunal thinks that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged, the accused is entitled to be acquitted.
I accept that submission. It encapsulates a well-established principle based upon the judgment of the High Court in Barca v The Queen,[41] by which I am of course bound. In this case, however, the evidence as a whole cannot sustain the hypothesis put forward by the applicant. Accordingly, that being the only explanation offered by the applicant, and the evidence as a whole not being susceptible of any reasonable explanation other than that of negligence, the submission is not one that can be accepted as being of assistance to the defence in this case.
[41] (1975) 133 CLR 82, 105.
Under the heading of "Consciousness" the applicant's next set of grounds is that in various ways his Honour erred in his consideration of the applicant's state of mind and level of consciousness at the relevant time or times. It would not be appropriate to examine each individual ground in detail because, for the reasons already given in this judgment, no adequate consideration of these matters could have resulted in the applicant's exculpation. It is true that his Honour appears to have proceeded on the basis that the applicant's defence was other than that which was the subject of the hypothesis examined above. That, however, was a consequence of the defence not having been articulated with the clarity it deserved. And this is not to say that his Honour's reasoning was otherwise deficient.
Reference to grounds 10 and 11, both of which fall under this heading, will illustrate the point. Ground 10 is that "The Magistrate erred in fact and/or law by proceeding on a basis that if sleep apnoea was treated there was nothing else to explain the applicant's driving behaviour and consciousness." Ground 11 is that "The Magistrate erred in law by ignoring or failing to weigh properly or at all the evidence of Dr Mestitz." As I read his Honour's reasons, however, he did not proceed on the basis set out in ground 10; and in any event, there is another explanation for the applicant's driving: it is that he was negligent. As for ground 11, his Honour did take the evidence of Dr Mestitz into account. The doctor could not, however, give any evidence of even general relevance, except to the extent that his description of the process of falling asleep may be so categorised; and the best he could do in relation to the particular issue of the applicant's mental condition on 24 March was to say that the inability to recollect the period preceding the accident, and the absence of signs of accident avoidance, were consistent with sleep. (Since neither vehicle demonstrated any such sign, however, one could on the applicant's reasoning conclude that both drivers were asleep when their cars collided.) Dr Mestitz could not and did not give evidence that, at about 6.15pm on 24 March 2013, the applicant was so affected by drowsiness or fatigue that without any warning he fell asleep over a short period of time – while in the process being so impaired in his mental functioning that he made a mistake about line markings on the Midland Highway and was deprived of the capacity to appreciate that he should not continue to drive.
The next set of grounds is headed "Alternative hypotheses and presumption of innocence." It runs into the immediate difficulty that the applicant only put forward one hypothesis. It then, by ground 15, contends that his Honour failed to address the question whether the applicant was not conscious at the time his driving caused death.
His Honour spent much time addressing that question. In doing so, he came to what seems to me to be the only conclusion which was open to him: that is, that the applicant was conscious (ie awake) up to and including the moment of impact.
By ground 16(a), the applicant contends that the magistrate erred in law by "failing to correctly identify, weigh and consider all hypotheses inconsistent with guilt including but not limited to the several the applicant had articulated". This is to postulate that the applicant gave expression to more than one hypothesis when in fact he did not; and even that to which he did give expression was not so clearly pursued as to provide all the assistance which counsel should give to the Court. It is also to postulate that it is for the Court to search out, weigh and consider hypotheses on which the defence does not rely. In the circumstances of this case, that is a particularly inapposite contention. While not included in those grounds expressly eschewed by the applicant, it is not one which, during the hearing before me, was pursued by his counsel. There will be occasions on which a court should bring to the parties' attention an inference or hypothesis which appears to the presiding judicial officer as otherwise being neglected when attention to it is necessary. That is not this case.
The judgment below is, I respectfully conclude, open to the criticism that his Honour did not fully consider the hypothesis expressed by senior counsel when he opened the case in the lower court. On the other hand, that hypothesis was never again given explicit expression, and the running of the defence case was not conspicuously consistent with it. In these circumstances, it is not surprising that his Honour did not have it clearly in mind. Even if he had acknowledged it fully, however, he could not properly have found that it had been made out as a reasonable hypothesis consistent with innocence.
Ground 17, under the heading "Failures to consider and weigh evidence" is to the effect that his Honour failed to "consider and weigh" a number of items of evidence. The ground fails not only because the magistrate did consider most if not all of the identified items, but also because – if the factual analysis, and the reasoning, adopted by me in this case is correct – no consideration of the kind adverted to in ground 17 could have affected the ultimate outcome of the case.
Grounds 18, 19 and 20 appear under the heading "Intermediate conclusions of fact and reasoning process". They are principally directed to the submission that certain intermediate facts were of such significance as to require proof beyond reasonable doubt, and to an attack upon the finding by his Honour that the applicant "was consciously and voluntarily driving his vehicle when he crossed onto the wrong side of the road and continued to consciously and voluntarily drive on that side of the road until the collision or immediately prior to the point of impact."[42] For the reasons given in this judgment, I am of the opinion that this finding was inevitable, and that each element of the charge was proved beyond reasonable doubt. At the very least, his Honour was entitled so to conclude.
[42] Judgment of the Magistrates Court, 25 June 2014 [229].
Grounds 21 and 24-28 having been (properly) abandoned, the remaining grounds are 22, 23 and 29. They plead, in essence, that his Honour failed to consider the defence of mistake, and erred in fact and/or in law to the point that the finding of guilt was unsafe and unsatisfactory. For the reasons I have given, I disagree with the latter proposition. As for mistake, it is clear that the applicant was mistaken about the position of his Mercedes on the Highway; but that mistake was a consequence of his negligence. It is, therefore, no answer to the charge.
Section 107(4)(a) of the Justices Act 1959 requires that there be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not in the nature of an appeal by way of rehearing, and the principles of Warren v Coombes[43] do not apply.[44] To the extent that this motion to review involved a review of the conclusions which the magistrate reached based on the evidence, I find that his Honour might, as a reasonable person, have come to the conclusions to which he did. It is also my opinion that, as a matter of law, his Honour was justified in finding the charge to be proved. Furthermore, his Honour's reasons for judgment could not, in my opinion, be justifiably attacked on the ground that they were inadequate. The course of his Honour's reasoning towards a conclusion of guilt was exposed sufficiently for a court of review to critically follow and evaluate it.
[43] (1979) 142 CLR 531.
[44] See Phillips v Arnold (2009) 19 Tas R 21 [46] (11 June 2009) per Crawford CJ.
The motion to review must be refused. I order accordingly.