Jatinder Panesar v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0260

JATINDER PANESAR	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KAYE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 March 2020
DATE OF JUDGMENT:	3 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 79
JUDGMENT APPEALED FROM:	DPP v Panesar (Unreported, County Court of Victoria, Judge Chettle, 5 November 2018)

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APPEAL – Criminal – Conviction – Applicant convicted on three charges of dangerous driving causing death and two charges of dangerous driving causing serious injury – Vehicle driven by applicant collided with minibus at intersection – Applicant failed to heed warning signs and failed to give way – Three passengers in minibus died, several passengers sustained injuries – Applicant diagnosed with severe sleep apnoea after accident – Whether applicant’s driving was conscious and voluntary – Whether applicant’s dangerous driving was a substantial and significant cause of death of one of the passengers – Whether judge misdirected jury as to causation issue – Whether judge misdirected jury concerning effect of applicant’s sleep apnoea condition on his state of consciousness – Whether verdicts unreasonable or unable to be supported having regard to the evidence – Leave to appeal granted – Appeal allowed – Convictions quashed – Verdicts of acquittal entered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Tehan QC with Ms C Boston	Melasecca, Kelly & Zayler
For the Respondent	Ms D Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA
WEINBERG JA:

On 20 June 2017, a taxi vehicle driven by the applicant collided with a minibus, which was carrying a number of elderly passengers, at the intersection of Pyke Road and Turnbull Road, Mooroopna. Following the accident, three of the elderly passengers in the bus died, and a number of the other passengers sustained injuries of varying severity.

The applicant was charged on indictment with three charges of dangerous driving causing death and three charges of dangerous driving causing serious injury. After a trial in the County Court, he was convicted on the three charges of dangerous driving causing death, and two of the charges of dangerous driving causing serious injury. He was acquitted on the sixth charge (of dangerous driving causing serious injury to Marion Gellatly). After a plea that was presented on his behalf, the applicant was sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of three years and six months. He seeks leave to appeal the convictions and sentence.

At the trial, it was not in issue that the driving of the applicant was dangerous. On its face, it involved a serious breach by him of the proper management or control of the vehicle and it created a real risk to the members of the public. The principal issue, in relation to each of the six charges, was whether the prosecution had established beyond reasonable doubt that that driving was conscious and voluntary. There was an additional issue in relation to charge 2, which concerned the death of Mrs Doreen Emmanuelli three days after the accident. That issue was whether the dangerous driving of the applicant was a substantial and significant cause of Mrs Emmanuelli’s death. As a matter of completeness, the issue on charge 6 (on which the applicant was acquitted) was whether the injuries suffered by Ms Gellatly were serious.

The applicant relies on seven proposed grounds of appeal against conviction. As will become evident, grounds 1, 2, 3, 6 and 7 are directed to the issue whether the applicant’s driving, at the critical time, was conscious and voluntary. Grounds 4 and 5 are directed to the applicant’s conviction on charge 2, and, in particular, to the issue whether the dangerous driving of the applicant was a substantial and significant cause of Mrs Emmanuelli’s death.

The proposed grounds of appeal are as follows:

Ground 1:
The verdicts on Charges 1-5 are unreasonable or unable to be supported having regard to the evidence, in circumstances where it was not open to a reasonable jury properly directed to exclude the reasonable hypothesis that the applicant was asleep or otherwise incapable of responding to stimuli (due to undiagnosed sleep apnoea) at the relevant time, and that his conduct was therefore not conscious and voluntary.
Ground 2:
The learned trial judge erred in failing to direct the jury, in answer to their question during deliberations, that the applicant could not be convicted unless all reasonable hypotheses consistent with innocence were excluded. A substantial miscarriage of justice has thereby been occasioned.
Ground 3:
The learned trial judge erred in failing to direct the jury that the relevant act or omission for the purpose of the charges was the applicant’s failure to brake at a point in time where the collision could have been avoided, and that this was the point in time where the voluntariness of the applicant’s conduct was to be assessed.
Ground 4:
The verdict on Charge 2 is unreasonable or unable to be supported having regard to the evidence, in circumstances where it was not open to a reasonable jury properly directed to conclude beyond reasonable doubt that the applicant’s conduct caused the death of Mrs Emmanuelli.
Ground 5:
The learned trial judge erred in directing the jury to the effect that Professor Defluz had answered the ‘wrong question’ regarding the cause of

Mrs Emmanuelli’s death, in that the direction:
(a) misrepresented the evidence of Professor Defluz; and/or
(b) unfairly discounted his evidence so as to damage his standing before the jury, thereby occasioning a substantial miscarriage of justice in respect of Charge 2.

Ground 6:
A substantial miscarriage of justice has been occasioned by an accumulation of errors.
Ground 7:
There has been a substantial miscarriage of justice because the learned trial judge failed:
(a) to adequately explain to the jury the expert evidence concerning the applicant suffering from sleep apnoea; and
(b) to adequately relate the expert evidence concerning the applicant suffering from sleep apnoea to their consideration of the element that they be satisfied that the applicant's driving was conscious and voluntary.

In the course of oral submissions, counsel for the respondent conceded that ground 4 should be upheld, and that the Court should enter a judgment of acquittal on charge 2. As we will discuss, that concession was correct. Counsel should be commended for the responsible manner in which it was made.

For the reasons that follow, we have concluded that, in addition to ground 4, leave to appeal should be granted, and the appeal allowed, on grounds 1, 2, 5, and 7. In those circumstances it is not necessary for us to consider grounds 3 and 6.

Background circumstances

At the time of the accident, the applicant was employed as a taxi driver in the Shepparton area. On the day of the accident, he was engaged to transport three clients of Shepparton Access, an aid facility for intellectually disabled persons, to their homes. He drove one person home to Mooroopna, and then commenced driving towards Ardmona, where he intended to convey the remaining two clients to their homes.

The accident happened at 3.28 pm. At the time, the applicant was driving in a westerly direction along Pyke Road approaching the intersection of that road with Turnbull Road. He was then driving at approximately 70 kilometres per hour (‘kph’) in a 100 kph zone. As the applicant approached the intersection, he passed a ‘Give Way’ advisory sign 190 metres before the intersection. He then passed a ‘Gravel Road ahead’ sign which was located some 158 metres before the intersection. That sign warned drivers that, after the intersection, Pyke Road became a gravel road. At the intersection itself, there was a ‘Give Way’ sign, as well as ‘Give Way’ lines painted across Pyke Road.

The applicant entered the intersection without any significant reduction in speed, and without applying the brakes on his vehicle. At that time the minibus was driving north on Turnbull Road approaching the intersection. In other words, the minibus was on the applicant’s left. The near side of the applicant’s taxi collided with the front offside of the minibus. As a result of the collision, the taxi came to a stop, and the minibus was forced into a dirt culvert, where it rolled onto its side.

At the time of the collision, the minibus was driving nine elderly residents from an aged care facility (Mercy Place in Shepparton) to their home after they had attended a day trip to Tatura Bakery. In the days that followed the collision, three of the elderly passengers from the minibus died. In addition, two other passengers sustained serious injuries resulting from the collision. The applicant was conveyed to Goulburn Valley Hospital. While waiting for a blood test, he fell asleep in a busy area in the emergency department on a number of times from about

5.30 pm. At the time of the accident, and in the period preceding it, the applicant had suffered from a severe case of undiagnosed sleep apnoea. It was the subsequent diagnosis of that condition that formed the basis of the critical issue at the trial, namely, whether the applicant’s conduct in driving his taxi in the short period leading to the accident was conscious and voluntary.

Summary of evidence

In order to address the proposed grounds of appeal, it is necessary to summarise some of the relevant evidence given at the trial.

Raymond Holland, the driver of the minibus, stated that as he approached the intersection there was a dense plantation of trees on his right-hand side, which affected his view of Pyke Road. He was then driving at about 60 to 70 kph. As he approached the intersection, he looked left and right, but did not see any vehicles approaching. As he was about to enter the intersection, the passenger in the front seat called out. At the same time, Mr Holland felt a heavy impact on the side of the bus, which caused the bus to veer to the left and enter the drain.

Detective Leading Senior Constable Shane Miles of the Major Collision Investigation Unit (‘MCIU’) attended the scene on the day of the accident. He confirmed the location of each of the signs to which we have referred, and tendered in evidence CCTV footage taken from the cabin of the taxi. That footage was played to the jury, and depicted the applicant as he was driving the vehicle on the approach to the intersection.

Detective Sergeant Janelle Mehegan, a member of the Collison Reconstruction and Mechanical Investigation Unit, attended the scene on the day of the accident. Having examined the scene, she estimated that the taxi driven by the applicant was travelling at approximately 64 kph at the time of the collision, and that the bus was travelling at 71 kph. She stated that there was no physical evidence that either the taxi or the bus had braked before impact. She also estimated that by applying the maximum brake pressure in the taxi, it would have been possible to reduce the speed of the taxi from 64 kph to zero over a distance of 22 metres. On the other hand if the driver of the taxi had slowed without applying heavy braking, the vehicle would have traversed 39 metres before coming to a halt.

Two of the police members, who dealt with the applicant on the day of the collision, gave evidence which was relevant to the issue whether the conduct of the applicant in driving the taxi before the collision was conscious and voluntary.

Senior Sergeant Louise Richards, of the Shepparton Criminal Investigation Unit, attended the scene. She later accompanied the applicant when he was conveyed to Goulburn Valley Hospital in order to provide a blood sample. They arrived at the Goulburn Valley Hospital at 5.04 pm and went to the emergency department. At that time, the applicant was seated in a cubicle which had a curtain around it. Senior Sergeant Richards was at or near the entrance to it. At 5.33 pm she heard a loud snoring. She looked inside the cubicle and observed that the applicant was asleep. She saw him wake himself up having emitted a large snore, so that his head jolted back as he woke himself up. Senior Sergeant Richards then continued to observe the applicant. In the period of about ten minutes that followed the applicant, while seated, ‘dozed in and out’. She said that he sat with his eyes closed then he would open his eyes and look around.

In cross-examination, Senior Sergeant Richards agreed that the emergency section of the hospital was very noisy with people ‘running around’ and ‘shouting instructions’. When she heard the applicant snoring, she looked inside the curtain and observed that he was sound asleep. His head dropped at one point, which caused it to snap back and wake him up. As his head went up he emitted a loud snore, and seemed surprised as if trying to register his surroundings. She said that following that, he appeared to doze off on about half a dozen occasions. Senior Sergeant Richards ascertained that the applicant had not worked on the day previous to the accident.

The informant Detective Acting Senior Sergeant Von Tunk gave evidence that he conducted a recorded interview of the applicant on the evening of 20 June. Before conducting the interview, he had received information from Senior Sergeant Richards that she had observed the applicant fall asleep at the hospital at 5.33 pm. In cross-examination, Senior Sergeant Von Tunk stated that he had recorded in his notes that the applicant looked sleepy and that he had ‘slow blinking eyes’. He had asked the applicant, in the course of the interview, whether he felt sleepy, because the applicant gave him the impression that he was in that state.

In the interview, which was tendered in evidence, the applicant stated that he had not worked on the previous day, and that he considered that he had had a full night's sleep on the previous night. He had commenced work at about 6.30 or 7 am. In answer to further questions, he said that he did not feel sleepy while he was driving, and he did not have any sleep problems. In answer to a question that Senior Sergeant Richards had observed him fall asleep at 5.30 pm, he was unable to recall doing so. He had no recollection of snoring so loudly that he woke himself up. He also said he did not have any sleep problem.

The applicant gave evidence at the conclusion of the prosecution case. He said that he had a memory of seeing vegetation on the left-hand side of the roadway about 200 metres from the intersection. He did not know whether he fell asleep at some point before the collision. He also had no recollection of falling asleep when he was at the hospital. After the accident, he consulted a sleep expert, Dr Swieca, and he was diagnosed with sleep apnoea. He has been treated for that condition since that diagnosis was made. The applicant said that he also attended Professor Mansfield, who was director of the Sleep Centre at the Epworth Hospital, who arranged for him to be tested. He said that he did not know why he drove past the ‘Give Way’ sign when he approached the intersection.

In cross-examination, the applicant said that he was awake as he drove towards the intersection. He said that he did not see either the ‘Give Way’ advisory sign or the ‘Gravel Road ahead’ sign, and he said that to his knowledge he was awake as he drove past each of those two signs. He denied that the reason that he did not see either of those signs was that he was not paying proper attention. He agreed that he was wide awake when he passed each sign.

Two medical practitioners gave evidence concerning the nature and effect of the sleep apnoea condition that the applicant was diagnosed, after the collision, to suffer from. Dr John Swieca, a consultant sleep physician, said that the applicant was referred to him for evaluation of a potential sleep disorder. Having conducted a clinical assessment and physical examination, he diagnosed that the applicant had a very severe form of sleep apnoea. Dr Swieca explained that if a patient stopped breathing thirty times per hour, such a condition would be severe, but that if the patient stopped breathing more than sixty times per hour of sleep, the condition was at the ‘very severe end of the spectrum’. In fact, on testing, the applicant was found to stop breathing some 69 times per hour of sleep.

Dr Swieca explained that sleep apnoea is a collective term describing disorders of breathing during sleep. He said that a proportion of people who suffer from the condition, will be excessively sleepy to the extent that they would be conscious of it during their daily life. However, testing also revealed that the majority of people with obstructive sleep apnoea have no understanding that they do anything abnormal during their sleep. Testing had demonstrated that patients, diagnosed with sleep apnoea, who genuinely believe that they are not sleepy, are in fact still impaired when they are required to be vigilant at prolonged tasks, or to concentrate for prolonged periods. He said that one of the consequences of very severe sleep apnoea (that is, the condition which the applicant was diagnosed to have) is a tendency of the patient to suffer drowsiness at inopportune moments. Only about one half of patients with that condition consider that they have a level of sleepiness. The disorder has an adverse effect on short-term memory, concentration and vigilance at prolonged tasks. From the history that Dr Swieca took from the applicant, it appeared that neither the applicant nor his wife had any understanding that he did in fact suffer from sleep apnoea.

Dr Swieca further stated that it had been demonstrated, in driving simulation studies and other tests, that patients with untreated obstructive sleep apnoea can have marked lapses in attention, although monitoring their brainwaves might demonstrate that they are physiologically awake. Psychomotor vigilance testing demonstrates that patients with conditions, such as that suffered by the applicant, may have delayed reaction times, and at times have complete lapses in reaction, where, to use the language of Dr Swieca, ‘a light goes on and they don't respond’. Dr Swieca stated in respect of such patients:

[W]hat we see in patients such as this is prolonged times to react and at times complete lapses where the — a light goes on and they don't respond, even though by looking at them behaviourally and monitoring the brainwave patterns they're technically awake. … [T]he colloquial term would be the lights are on but no one's home.

Dr Swieca elaborated on that concept by stating that such patients can appear to be awake, their eyes can be open and they can be looking straight ahead, but in terms of their neurophysiological response, the brain's response to the environment may be impaired, which might cause either slow reaction times or a complete failure to respond to stimuli.

Dr Swieca also was referred to the evidence that the applicant had fallen asleep in the emergency department of the hospital at 5.33 pm on the day of the accident. He considered that that circumstance demonstrated a substantial degree of sleepiness, because it would be expected that a person in a noisy hospital emergency department, having recently been involved in a motor vehicle accident, would be quite alert.

In cross-examination, Dr Swieca repeated that people, who have untreated severe sleep apnoea, might be severely impaired in their ability to attend to their environment and respond to hazards in a timely fashion. He said that he could not positively assert that the applicant was asleep in the period before the collision. In re-examination, Dr Swieca said that there was evidence that patients, who suffer the degree of severity of sleep apnoea equivalent to that of the applicant, have a high rate of ‘microsleeps’ which cause motor vehicle accidents. He expressed the view that the applicant might have been having a microsleep during the period leading up to the accident.

Associate Professor Darren Mansfield conducts the Sleep Disorder Service at Monash Health, and at Epworth Hospital. He first saw the applicant in his consulting rooms later in 2017, and subsequently repeated the overnight sleep study test on him in October. That test confirmed the original diagnosis of severe obstructed sleep apnoea. On that occasion, the applicant was tested as having over one hundred breathing obstructions per hour. The difference between that test and the test conducted by Dr Swieca could be explained by some progressive weight gain by the applicant in the interim. Professor Mansfield stated that the test confirmed his initial diagnosis of a very obstructive sleep apnoea. He said that it is possible to suffer from a severe form of sleep apnoea and not be aware of it. He said that about 40 to 45 per cent of all sleep apnoea sufferers do not report many symptoms or are minimally symptomatic. People like the applicant who suffer from severe sleep apnoea can be impaired but not necessarily be aware of it.

Professor Mansfield said that the impairments caused by sleep apnoea relate to alertness, concentration, responses to the environment and reaction times. In addition, such patients can have a number of neurocognitive deficits which relate to problem solving, working memory, and other functions. One of the deficits, that a person with such a condition might suffer from, is a failure to respond to stimuli. Professor Mansfield said that that deficit is quite common with such patients. Thus, a person with the sleep apnoea condition, that the applicant had, could be exposed to stimuli, but because of that condition, completely fail to respond to them. He said that another consequence of sleep apnoea is that a person, with such a condition can suffer a microsleep, which is a level between decreased alertness and established sleep. In such a situation, the person can appear to be awake and yet be unable to respond. He said that in that transitional state there can be fluctuating degrees of impairment, but to the casual observer it would appear that they are awake in terms of their eye positioning and posture. He said that such a person, in a microsleep, would be disengaged from the environment and not necessarily able to respond to actual stimuli. He said that in such a condition a patient might be giving the appearance of looking ahead when in fact the patient is in no position at all to respond to external stimulus.

In cross-examination, Professor Mansfield did not accept that the evidence of the applicant, that he was awake when he drove towards the intersection, meant that he actually was awake during that period. He said that a majority of people in such drowsy states would regard their level of consciousness as being that of wakefulness rather than sleep. He said that he could not think of any alternative explanation for the applicant's sleepiness at 5.30 pm in the hospital other than that it was the result of his condition of sleep apnoea. Professor Mansfield stated that the sleep transition phases are associated with the appearances of wakefulness such as posture. He described it as a ‘fluctuant’ stage in which performance detriments fluctuate, including the capacity to respond to stimuli. Professor Mansfield said that the CCTV footage from the cab of the taxi did not enable him to make a determination whether or not the applicant was experiencing episodes of microsleeps.

In re-examination, Professor Mansfield stated that during the period in which a patient is in a microsleep, the patient can have no control over a motor vehicle. He expressed the opinion that there was a reasonable possibility that the applicant was suffering a series of microsleeps as he approached and entered the intersection. He said that that was a ‘very possible and plausible explanation for the response failures that were elicited’.

Two witnesses gave evidence in respect of the causation issue that was involved in charge 2, which was the charge of dangerous driving causing the death of Mrs Doreen Emmanuelli.

Dr Paul Bedford, a forensic pathologist employed by the Victorian Institute of Forensic Medicine, gave evidence on behalf of the prosecution. Dr Bedford conducted an autopsy on Mrs Emmanuelli on 27 June 2017. He observed a number of facial injuries, including a laceration over the right eye, bruising over the forehead, an abrasion in the left upper forehead, and an abrasion on the nose. Doctor Bedford noted that Mrs Emmanuelli had been diagnosed by hospital staff to suffer from congestive heart failure and rapid atrial fibrillation. Her heart was enlarged and under strain. The major coronary arteries were narrowed by atheromatous disease. Following her hospitalisation, Mrs Emmanuelli's condition had deteriorated. Her blood pressure dropped, and her congestive heart failure and rapid atrial fibrillation deteriorated. Mrs Emmanuelli had a build-up of fluid in both chest cavities which impacted on her lungs, which was another aspect of the deterioration of her heart function.

When asked as to the cause of Mrs Emmanuelli's death, Dr Bedford stated that it was ‘deteriorating heart function or ischemic heart disease in the setting of recent facial injuries sustained in a motor vehicle incident’. Dr Bedford said that by the term ‘in the setting of’ he conveyed that there was a ‘temporal association’ with Mrs Emmanuelli sustaining injuries to her face and then being admitted to hospital. He said that within that setting her heart function deteriorated and she passed away three days later. He described the injuries sustained by Mrs Emmanuelli, in the accident, as ‘a bit like the straw on the camel’s back’. He said that given Mrs Emmanuelli’s pre-existing poor heart function, it did not take ‘too much to tip over the precipice’. He said that a hospital was never the best environment for elderly people, and any stay in hospital for such a patient has the potential to result in further deterioration in her condition. He therefore regarded the accident as a ‘contributor’ to her death.

In cross-examination, Dr Bedford agreed that before the accident Mrs Emmanuelli had been suffering from advanced heart disease with heart enlargement. She had scarring of the heart muscle, and she suffered from advanced arteriosclerosis. She had suffered previous acute myocardial infarctions and also suffered congestive heart failure which caused build-up of fluids in the chest cavity. In addition, she suffered from hypertension. Dr Bedford agreed that, with those conditions, Mrs Emmanuelli was a person who was ‘likely prone to death at any time’. He considered that the opinion expressed by Dr Defluz — that a causal relationship had not been established between the collision and the deteriorating heart disease which caused death — had some validity, so that it was a reasonable view. However, he considered that because Mrs Emmanuelli was in hospital that circumstance had aggravated her heart condition.

Professor Yohan Defluz, a specialist forensic pathologist, was called to give evidence on behalf of the applicant. He examined the hospital medical records of Mrs Emmanuelli. He described the conditions suffered by Mrs Emmanuelli in a manner that was consistent with that stated by Dr Bedford in cross-examination. Professor Defluz considered that the cause of Mrs Emmanuelli’s death was congestive heart failure which was a result of the pre-existing heart disease. He said that patients with such severe condition as Mrs Emmanuelli could deteriorate rapidly and unexpectedly at any time. He considered that it was a reasonable possibility that if she had not been in the minibus on 20 June 2017, she would have died exactly as she did. He said that the injuries that she suffered were trivial. He considered that even a person aged 95 years, with significant disease, and who suffered such injuries, would not be expected to suffer an adverse outcome as a result of those injuries.

In cross-examination, Dr Defluz accepted that the opinion expressed by Dr Bedford was reasonable, namely, that the cause of death was deteriorating heart function in the setting of the facial injuries sustained in the accident. He also accepted that Mrs Emmanuelli's continuing survival was vulnerable to minor injuries suffered by her. He said that geriatric patients who suffer minor injuries can have a deterioration in their health while in hospital. He said, however, that in the present case the injuries were so minor as to make it difficult to conclude that they were a specific contributing factor to her death. His conclusion in his report was that the cause of death could reasonably be attributed to congestive heart failure due to ischemic heart disease, with the collision and its consequences being a possible contribution to death.

In re-examination, Dr Defluz said that in his report he had also stated that there was no specific indication that Mrs Emmanuelli’s deterioration was causally related to the collision or the injuries sustained in it.

Grounds of appeal — consideration

As we foreshadowed earlier in these reasons, we have reached the conclusion that leave to appeal should be granted, and the appeal allowed, on grounds 1, 2, 4, 5 and 7. It is convenient to consider those grounds in the following order, namely, first, grounds 4 and 5, secondly, grounds 2 and 7, and, thirdly, ground 1.

Grounds 4 and 5

As mentioned, in the course of oral submissions, counsel for the respondent conceded that ground 4 of the application for leave to appeal should succeed, so that a judgment of acquittal be entered on charge 2. For the reasons that follow, that concession was correct. Although it is not necessary for us to consider ground 5, nevertheless, in view of the manner in which the case was conducted by the parties, it is appropriate that we briefly deal with that ground also.

Ground 4 is directed to the question whether it was open to the jury, on the evidence adduced at the trial, to be satisfied beyond reasonable doubt that the dangerous driving of the applicant caused the death of Mrs Emmanuelli. In order to reach such a conclusion, and to convict the applicant on charge 2, the jury was required to be satisfied, beyond reasonable doubt, that the dangerous driving of the applicant was a substantial and significant cause of her death.[1]
[1]R v Evans (No 2) [1976] VR 523, 528–9 (Young CJ, Gillard and Anderson JJ); R v Heron [2003] VSCA 76, [20], [23] (Buchanan JA with whom Charles and Vincent JJA agreed); R v Rudebeck [1999] VSCA 155, [66] (Ormiston JA); Royall v The Queen (1991) 172 CLR 378, 411 (Dean and Dawson JJ); Swan v The Queen [2020] HCA 11, [24] (Bell, Keane, Nettle, Gordon and Edelman JJ).

As the evidence of Dr Bedford and Professor Defluz makes clear, at the time of the accident, Mrs Emmanuelli suffered from very severe pre-existing heart disease. As a result of the accident, she sustained what otherwise would have been characterised as quite minor injuries. As a consequence, Professor Defluz was unable to conclude that the injuries, resulting from the accident, had a causal role in her death. The prosecution case, at its highest, was based on the evidence given by Dr Bedford, that the cause of Mrs Emmauelli’s death was her deteriorating heart function ‘in the setting’ of her being admitted to hospital for treatment for the injuries that she suffered in the accident. As already mentioned, Dr Bedford described the injuries sustained by Mrs Emmanuelli, in the accident, as ‘a bit like the straw on the camel’s back’. He said that in light of Mrs Emmanuelli’s pre-existing poor heart function, it did not take ‘too much to tip [her] over the precipice’.

Thus, taken at its highest, the evidence of Dr Bedford was that the injuries sustained by Mrs Emmanuelli as a consequence of the accident had caused her to be hospitalised, which was not the best environment for an elderly person suffering from Mrs Emmanuelli’s pre-existing conditions. To that extent, the jury could have been satisfied that, in that manner, the accident was a cause of her death. However, taken at its highest, Dr Bedford’s evidence could not justify a conclusion, beyond reasonable doubt, that the injuries sustained by Mrs Emmanuelli (and thus the dangerous driving of the applicant which caused those injuries) were a substantial or significant cause of her death. The description by Dr Bedford, of the role of the injuries, as being equivalent to ‘a straw that broke the camel’s back’, precluded any such conclusion on behalf of the jury.

For those reasons, the concession by the respondent, that ground 4 must be upheld, was proper and correct. It was not open to the jury to be satisfied beyond reasonable doubt that the dangerous driving of the applicant was a substantial or significant cause of the death of Mrs Emmanuelli.

In that context, it is appropriate also to address the issues raised by ground 5. On two occasions, in the course of his charge, the judge told the jury that Professor Defluz did not address the correct issue, when he expressed the opinion that it could not be concluded that the injuries sustained by Mrs Emmanuelli were a contributing cause of her death. On the first occasion, the judge expressly told the jury that that observation by him was a ‘comment’. On the second occasion, he did not do so. He said to the jury, on that occasion, that Professor Defluz’s evidence was ‘not an answer to the problem, he’s not addressing the issue that is relevant in this case’.

In making those observations to the jury, the judge erred in two fundamental respects. First, as the recent decision of the High Court in McKell v The Queen makes clear, a trial judge is not permitted to make a comment to the jury which constitutes an expression of opinion on the determination of a disputed issue in a trial.[2] In the present case, the observations made by the judge to the jury, on those two occasions, addressed one of the two issues that were in dispute in respect of charge 2.
[2](2019) 264 CLR 307, 325–6 [53] (Bell, Keane, Gordon and Edelmann JJ).

Secondly, the observation made by the judge to the jury was incorrect. In order to establish the elements of causation on charge 2, the prosecution sought to prove that the dangerous driving of the applicant caused injuries to Mrs Emmanuelli, which in turn required her to be admitted to hospital, which in turn contributed to her death. In that context, it was immaterial whether the issue, addressed by Professor Defluz, was whether the driving of the applicant contributed to Mrs Emmanuelli’s death, or whether her injuries did so. They were both part of the same chain of causation relied on by the prosecution. The distinction between the driving, and the injuries that resulted from it, sought to be made by the judge, was in reality a distinction without a material difference.

For those reasons, if it had been necessary to do so, we would have upheld ground 5.

Grounds 2 and 7

The issues, that were raised under grounds 2 and 7, were, in effect, argued together on the application.

In support of ground 2, counsel for the applicant noted that at the conclusion of the judge’s charge, the judge rejected a submission by counsel for the applicant that he should specifically direct the jury that it could not convict the applicant unless it could exclude all reasonable hypotheses consistent with innocence, and, in particular, the hypothesis that, due to the applicant’s undiagnosed condition of sleep apnoea, his conduct in driving the taxi as it approached the intersection was not conscious and voluntary. Counsel for the applicant on this application submitted that in a case in which the defence rested on the basis of a reasonable hypothesis consistent with innocence — namely, that the applicant was suffering from microsleeps, or that his consciousness was so affected by sleep apnoea, that his conduct was not conscious and voluntary — the failure of the judge to give that direction to the jury at that time amounted to a substantial miscarriage of justice.

In support of ground 7, counsel for the applicant made two related submissions. First, he submitted, the judge failed to adequately outline to the jury the aspects of the expert evidence of Dr Swieca and Professor Mansfield concerning the effect of the applicant’s undiagnosed condition of sleep apnoea, and, in particular, whether, at the time at which he approached the intersection, that condition had the effect that his conduct was not conscious and voluntary. Counsel submitted that this was a case in which the judge should have properly and fully summarised the evidence of the two expert witnesses, and related that evidence specifically to the issue that the jury was required to be satisfied, namely, that the conduct of the applicant in driving his vehicle at the critical time was conscious and voluntary.

Secondly, counsel submitted that, in outlining the issues raised by the two expert witnesses called on behalf of the applicant, the judge did not correctly explain the substance and effect of their evidence, or the issues raised by it. In particular, the judge told the jury that the issue raised by that evidence was whether the prosecution had proven, beyond reasonable doubt, that at the relevant time the applicant was awake while driving the taxi. In effect, the judge thus defined the issue in binary terms, namely, whether the applicant at that time was awake, and not asleep. However, it was submitted, the true effect of the evidence given by Dr Swieca and Professor Mansfield was that, at the time at which he was driving towards the intersection, the applicant might either have been experiencing a series of microsleeps of which he was unaware, or, as a result of his condition of sleep apnoea, his level of consciousness was so diminished that he lacked the mental capacity to assimilate or respond to visual signs that warned him of the intersection that he was approaching and of his obligation to give way to vehicles travelling on Turnbull Road at that intersection.

In response to ground 2, counsel for the respondent noted that at different stages in his charge, the judge did direct the jury that, in order to convict the applicant or draw an inference against the applicant, the jury must exclude any alternative explanation that was consistent with the innocence of the applicant. Counsel accepted that the judge did identify the issue raised by the defence, in terms that the prosecution could not exclude beyond reasonable doubt the possibility that the applicant was asleep at the time of the collision. It was submitted that the judge in that way correctly articulated to the jury the impact of the burden of proof on the prosecution, in respect of the issue whether the conduct of the applicant was conscious and voluntary.

In response to ground 7, counsel for the respondent submitted that, pursuant to s 65 of the Jury Directions Act 2015, the judge was not obliged to summarise the evidence of the two expert witnesses called on behalf of the applicant, particularly as counsel for the applicant, at trial, did not request that the judge give such a summary to the jury. Counsel for the respondent also pointed out that the judge delivered his charge to the jury one day after Professor Mansfield had given his evidence. In addition, counsel for the applicant, in his final address, had referred to and quoted from the evidence of Dr Swieca and Professor Mansfield in some detail.

Counsel for the respondent further submitted that, on the evidence, the issue, whether the conduct of the applicant was conscious and voluntary, did involve a binary question, namely, whether the jury was satisfied beyond reasonable doubt that the applicant was awake at the critical time at which he approached the intersection, and whether the jury could exclude the possibility that, at that time, he was experiencing a series of microsleeps. Counsel for the respondent submitted that, properly considered, both the evidence at trial, and the final addresses of counsel to the jury, identified the issue in that way. Thus, counsel submitted that the judge correctly outlined that issue to the jury.

In analysing the competing submissions on grounds 2 and 7, three relevant conclusions can be drawn from a review of the transcript of the trial. First, in his charge, the judge did direct the jury in terms of the binary question discussed on this application, namely, whether the jury was satisfied, beyond reasonable doubt, that the applicant was awake, and whether it could be satisfied beyond reasonable doubt that he was not asleep, at the time at which he drove towards the intersection. Secondly, Dr Swieca and Professor Mansfield did not confine their evidence to the issue whether, at the critical time, the applicant might have been asleep, or experiencing microsleeps. Rather, both witnesses expressed their opinions in terms of the effect that the applicant’s condition of sleep apnoea might have had on his state of consciousness, and on the capacity of his brain to identify and respond to stimuli at the critical time at which he approached the intersection. Thirdly, counsel for the applicant, at trial, did not confine the issue, whether the applicant’s conduct was conscious and voluntary, to the binary question postulated by the judge in his charge to the jury. On the contrary, counsel did agitate the issue in a manner consistent with the evidence given by Dr Swieca and Professor Mansfield, namely, in terms of the effect of the applicant’s sleep apnoea on his state of consciousness as he drove towards the intersection.

As the following analysis of the transcript of the trial demonstrates, each of those conclusions are well established.

First, it is clear, and indeed it was not disputed by counsel for the respondent, that the judge did direct the jury on the issue, whether the applicant’s conduct was conscious and voluntary, in the binary terms we have discussed.

At an early stage in his charge, the judge told the jury that one issue, that was common to each of the six charges, was whether the prosecution could exclude beyond reasonable doubt the possibility that the accused was ‘asleep at the time of the collision’. He told the jury that, in that respect, the prosecution had invited the jury to accept the evidence of the applicant that he believed that he was awake at the critical time. Later, when the judge explained the first element in each of the charges — that the applicant was driving his vehicle in a ‘conscious and voluntary way’ — the judge told the jury that the applicant’s driving must have been ‘voluntary, willed and conscious’, so that ‘he has got to be awake and driving’. He said ‘if somebody goes to sleep they are not voluntarily and consciously driving a vehicle’.

Later in his directions, the judge returned to that issue, explaining to the jury that if it thought that there was a reasonable possibility that the applicant ‘was asleep and that his driving was not conscious and voluntary’, it should find the applicant not guilty of all charges. At the conclusion of his charge, the judge directed the jury that if sleep apnoea caused a person to be inattentive and not vigilant ‘that is not a defence’. He told the jury that if, on the other hand, it was not satisfied beyond reasonable doubt that he was conscious and voluntarily driving ‘in the way in which I have defined it, that does in fact provide a defence’. He concluded by saying to the jury ‘the defence say you cannot exclude the possibility that he was driving asleep effectively’.

Thus, as a review of the judge’s charge reveals, the judge did direct the jury, in respect of the critical issue, in terms of it involving a binary question, namely, whether the jury was satisfied beyond reasonable doubt that the applicant was awake and not asleep at the time of the dangerous driving.

It is clear that the evidence of both Dr Swieca and Professor Mansfield was not confined to the issue whether the applicant was awake or asleep at the time of the driving in question. Rather, the evidence of both of those two experts was more nuanced. Certainly, each witness postulated that, at the critical time, the applicant might have been experiencing a series of microsleeps. However, each witness also expressed the opinion that, whether or not at that time the applicant was experiencing such microsleeps, his mental state might have been so affected by sleep apnoea that he was not then conscious, in the sense that his brain was not capable of assimilating and responding to visual stimuli presented to it.

Thus, Dr Swieca gave evidence that particular tests (known as ‘psychomotor vigilance task’) have been designed to assess the response to hazards by patients, who are affected by sleep apnoea. As we have earlier noted, he said:

[W]hat we see in patients such as this is prolonged times to react and at times complete lapses where the — a light goes on and they don’t respond, even though by looking at them behaviourally and monitoring the brainwave patterns they’re technically awake. You know, the colloquial term would be the lights are on but no-one’s home.

Dr Swieca was then asked whether another way of expressing that concept would be that whatever such a person was doing was unwilled. Dr Swieca responded:

They will continue doing what they were doing beforehand even though what was actually necessary in that situation would be to react.

Professor Mansfield expressed similar conclusions. When asked whether people like the applicant, who suffer from severe sleep apnoea, have particular deficits, he responded:

Yes … these people can indeed be impaired but not necessarily be self-aware and therefore reporting the symptoms, and the impairments relate to those that go along with degrees of drowsiness and … it’s alertness, it’s concentration, it’s responses to the environment, it’s reaction times and there’s a number of what we would call neurocognitive deficits which relate to problem solving and working memory and the like.

Professor Mansfield then answered in the affirmative a question whether one of those deficits a person might suffer was a failure to respond to stimuli. He said that such a deficit was common.

Finally, Professor Mansfield gave the following evidence:

[T]he important point to actually make here, is that this is not a categorical: you are awake or you are asleep. The transition from wakefulness to sleep is indeed a transition and during that transition period, there are varying degrees of performance detriments … So, for example, if we test people to respond to stimuli, they will respond sometimes and then not for the next over a ten minute period. So we see fluctuation.

In that way, the evidence of both Dr Swieca and Professor Mansfield postulated the possibility, not only that the applicant might have been experiencing microsleeps at the time that he was driving towards the intersection, but, in addition, that as a result of his sleep apnoea condition, his consciousness may have been so depressed that his brain lacked the capacity to accept and respond to critical visual stimuli (namely, signs warning him of the approaching intersection and his obligation to give way at it).

A review of the transcript also reveals that counsel for the applicant, while referring to the possibility that the applicant might have been suffering from microsleeps, did not confine the defence case to the binary issue explained by the judge to the jury.

In his brief opening address to the jury, counsel explained that he would be calling Dr Swieca and Professor Mansfield, to establish that at the time of the collision the applicant was suffering from a condition ‘that made his driving essentially involuntary’.

In his final address, counsel addressed the issue in more detail. He did on a number of occasions refer to the reasonable possibility that, at the relevant time, the applicant had been experiencing microsleeps. However, he did not confine the defence approach, to the issue whether the applicant’s conduct was conscious and voluntary, in that way. In particular, he told the jury that the actions of the applicant in driving the vehicle ‘were unwilled, they weren’t voluntary, they were due to his condition of severe sleep apnoea’. He later returned to that issue, and commenced by submitting that there was a reasonable possibility that the applicant’s actions in driving into the intersection ‘were not conscious, were not voluntary, or were not willed’. He then postulated that there was a reasonable possibility that he was suffering from severe sleep apnoea that ‘was operating so as to prevent him responding to the stimuli of the warning signs and the intersection itself’. Having advanced that proposition, he referred to the evidence of Dr Swieca, which we have quoted, that ‘the lights are on but no-one’s home’. He similarly referred to the evidence of Professor Mansfield that a person in such a condition could be exposed to stimuli, but completely fail to respond to it. In particular, he noted the evidence of Professor Mansfield that such a person might appear to be awake, but because of his condition, not be responding to stimuli.

The critical issue, in respect of each of the charges on which the applicant was convicted, was whether the jury was satisfied beyond reasonable doubt that his conduct in driving his vehicle at the relevant time was conscious and voluntary. The prosecution case that was put to the jury, both in opening and closing, was that the conduct of the applicant, that constituted dangerous driving, was his failure to keep a reasonable look out in respect of the signs that ought to have warned him of the approach of the intersection, and his failure to apply his brakes in time to give way to the minibus that approached the intersection on his left hand side. From the foregoing discussion, it is clear that the judge directed the jury, on that issue, by postulating a binary question, namely, whether the jury was satisfied beyond reasonable doubt that at that time the applicant was awake and not asleep. However, it is clear, from the evidence of both Dr Swieca and Professor Mansfield, that the issue, that the driving of the applicant was conscious and voluntary, was not confined to that specific question. Nor did counsel for the applicant, at trial, confine the applicant’s case in that way. Rather, the critical issue at the trial was whether the jury could exclude the hypothesis that at the critical time, as a result of his undiagnosed condition of sleep apnoea, the applicant’s state of consciousness was impaired to the extent that his brain was not capable of either assimilating or responding to relevant stimuli, namely, the visual signs that would otherwise have warned him of the approach of the intersection at which he was required to give way. It is clear that the judge did not formulate the issue to the jury in that way. Nor did his Honour correctly direct the jury in those terms.

The erroneous direction given by the judge to the jury, on that issue, constituted a significant misdirection by his Honour on the central issue in the case. It significantly undermined the import of the evidence given by the two expert witnesses called on behalf of the applicant, and deflected the jury from a proper consideration of the issues raised by their evidence concerning the question whether, at the time of the accident, the applicant’s consciousness might have been so depleted that he was incapable of recognising or reacting to the signs at the intersection that faced him on his approach to it. In that way, the conclusion is inevitable that the misdirection by the judge, to the jury, as to that issue, gave rise to a substantial miscarriage of justice.

In reaching those conclusions, it is not necessary for us to consider the further submission made on behalf of the applicant, namely, that in the circumstances of the case, the judge ought to have summarised the evidence of Dr Swieca and Professor Mansfield in greater detail.[3] It is sufficient for us to observe that in a case in which the issue was quite complex, such a summary may well have assisted the jury, and ensured that it correctly focused on the critical issue on which the guilt of the applicant was to be determined. However, it is noteworthy that counsel for the applicant did not, at trial, contend that the judge should give, or should have given, such a summary of the evidence of those two experts to the jury. The judge did provide a transcript of the evidence to the jury. It might be inferred that trial counsel, in the atmosphere of the case, considered that course was sufficient in the circumstances.
[3]Cf R v Franks [1999] 1 VR 518, 526–7 [25] (Winneke P). See also R v Rowlson (1996) 67 SASR 96.

For the foregoing reasons we would uphold grounds 2 and 7.

Ground 1

Ground 1 is that the verdicts on charges 1–5 are unreasonable or unable to be supported having regard to the evidence, in that it was not open to the jury, properly directed, to exclude the reasonable hypothesis that the applicant was asleep, or otherwise incapable of responding to stimuli, so that his conduct was therefore not conscious and voluntary.

In support of that ground, counsel for the applicant commenced by noting that the evidence at the trial demonstrated that, on the day of the accident, the applicant was well rested, he was driving well below the speed limit, and he was not affected by drugs or alcohol. He was driving on a rural road with a clear view of the warning signs facing him. Yet he made no attempt, at all, to give way to the minibus or to take any relevant evasive action. Subsequently, it was revealed that he suffered from a severe form of sleep apnoea. In those circumstances, it was submitted, there was a reasonable possibility that the applicant, on his approach to the intersection, was in such a depleted state of consciousness, due to his sleep apnoea, that he then lacked the mental capacity to recognise or respond to the warnings of the approach to the intersection and the requirement that he apply the brakes on his vehicle before entering it.

Counsel noted that it was not in dispute that, at the time of the accident, the applicant had a very severe form of undiagnosed sleep apnoea. He referred to the evidence of Dr Swieca and Professor Mansfield, that, as a consequence of that condition, it was reasonably possible that, when the applicant drove his vehicle towards the intersection, he was either experiencing a series of microsleeps, or that he was in a transition phase from wakefulness in which he was on the verge of such sleeps, so that he lacked the capacity to respond to material stimuli such as warning signs of the approaching intersection. Counsel referred to the evidence of Professor Mansfield and Dr Swieca that, in such a condition, the applicant might have appeared to a casual observer to still be awake, yet be in such a reduced form of consciousness. Counsel noted the evidence of Professor Mansfield, that, for that reason, it was not possible to determine, from the CCTV footage taken from the cab of the taxi, the extent of the applicant’s conscious state, and, in particular, whether he was then experiencing a series of microsleeps.

In response, counsel for the respondent submitted that it was open to the jury to be satisfied, beyond reasonable doubt, that the applicant was in a conscious and voluntary state at the time at which he drove his vehicle to the intersection, and at which he failed to brake before entering it. Counsel relied, first, on the CCTV footage, which depicted some head movements of the applicant, particularly movements to the left and right shortly before he entered the intersection. The footage also depicted the applicant maintaining a straight sitting posture, which, it was contended, weighed against a conclusion that he might then have been having a series of microsleeps. Counsel also referred to the footage that was subsequently taken from a police vehicle when the police investigators conducted a drive through of the approach to the intersection. That footage, it was submitted, demonstrated that for at least 200 metres leading to the intersection, the applicant had been able to drive his vehicle in a straight line without diverting from it. Further, it was noted, neither Dr Swieca nor Professor Mansfield could say that the applicant was in fact asleep at the time he was approaching the intersection. Ultimately, the question whether he might have been asleep, or otherwise in a depleted form of consciousness, was essentially a matter for the jury. Therefore, it was submitted, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant.

Ground 1 is based on s 276(1)(a) of the Criminal Procedure Act 2009, which requires that the Court allow an appeal if it is satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.

The principles, that apply to such a ground, have been discussed in a number of decisions by the High Court and by this Court. They were conveniently summarised by this Court in its recent decision in Conolly (a pseudonym) v The Queen in the following terms:

By virtue of s 276(1)(a) of the Criminal Procedure Act 2009 (‘CPA’), this Court must allow an appeal against conviction if the jury’s verdict ‘is unreasonable or cannot be supported having regard to the evidence’. The test to be applied under that statutory limb is as formulated by Mason CJ, Deane, Dawson and Toohey JJ in M. Thus, ‘the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’. The Court must make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, giving full weight to the jury’s advantage in seeing and hearing the witnesses. Generally, a reasonable doubt about guilt experienced by the appellate court is one that the jury should also have experienced. As was observed:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.

In written submissions, the respondent contended that ‘the test applicable to this ground’ was stated by Hayne J in Libke; that is, ‘the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt’. That statement is, however, apt to be misunderstood. Properly viewed, it does not constitute a gloss on the M test, let alone operate as a substitute for it. As this Court explained in Tyrrell:
It is important to bear in mind that, in that passage, Hayne J did not restate the test in terms that were more stringent than that in which it was expressed in M. Rather, by emphasising that the question is whether the jury ‘must’ have entertained a doubt about the appellant’s guilt, Hayne J gave emphasis to the essential test, to be applied by the appellate court, as to whether it was ‘open’ to the jury to be so satisfied beyond reasonable doubt.[4]

[4][2019] VSCA 125, [7]–[8] (Priest, Beach and Kyrou JJA) (citations omitted) (emphasis in original).

In determining the question whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused, the appellate court is required to undertake its own independent assessment of the evidence that was before the jury. In addressing that question, the court must give full weight to the proposition that it is the jury that is the body entrusted with the primary responsibility of determining guilt or innocence of the accused. In R v Baden-Clay, the High Court stated:

It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.[5]

[5](2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (citations omitted).

Before a person may be liable for dangerous driving causing death, he or she must ‘drive’ a motor vehicle. Driving — controlling the movement, direction and propulsion of a motor vehicle — is a conscious and voluntary act. Thus, if a person’s apparent driving is deprived of its voluntary and conscious character, then no offence is committed. In order to establish that the ‘driving’ by the applicant of his vehicle was dangerous, for the purpose of each of the charges, the prosecution was required to demonstrate that his driving involved a serious breach of the proper management or control of his vehicle and that it created a real risk to the lives of members of the public in the vicinity.[6] The prosecution case, both in opening and in final address, was that the applicant drove his vehicle in a manner that was dangerous, in that way, in that he failed to make proper observations and keep a proper look out as he approached the intersection, he failed to observe the ‘Give Way’ signage, he failed to give way to the minibus, and he drove into the intersection causing the collision. Essentially, then, the prosecution case was based on a series of omissions by the applicant that constituted a breach by him of the proper management and control of his vehicle, and that created a real risk to lives of members of the public who were in or about the roadway.
[6]McBride v The Queen (1966) 115 CLR 44, 50 (Barwick CJ); Jiminez v The Queen (1992) 173 CLR 572, 579 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ); King v The Queen (2012) 245 CLR 588, 605–6 [39] (French CJ, Crennan and Kiefel JJ).

Thus, the critical question for the jury was whether the failure, by the applicant, to properly manage and control his vehicle, in that way, was due to a lack of proper attention on his part, or whether there was a reasonable possibility that, at the relevant time, those failures occurred because the applicant’s consciousness was so diminished that his driving was not, at that time, the performance by him of a conscious and voluntary act.

The requirements that, in order to attract criminal liability, an accused person’s act or omission must have been conscious and voluntary, are closely related. In theory, there may be some distinction between them. However, in most of the authorities, they have been treated as part of the same composite element.

The aspect of the element, that the accused person’s act or omission must be conscious, is usually explained to juries by instancing an act or omission of an accused person which might have been performed while that person was sleep walking or in a similar state of unconsciousness.[7] The preponderance of the authorities focus on the requirement that the act or omission of the particular accused must have been voluntary. That requirement is ordinarily expressed in terms that the relevant act or omission must have been the product of an exercise of the will.[8]
[7]Bratty v Attorney-General (Northern Ireland) [1963] AC 386, 409 (Lord Denning), 415 (Lord Morris of Borthy-y-Gest); R v Tait [1973] VR 151 (‘Tait’).
[8]Ryan v The Queen (1967) 121 CLR 205, 215–16 (Barwick CJ) (‘Ryan’); R v Falconer (1990) 171 CLR 30, 39 (Mason CJ, Brennan and McHugh JJ) (‘Falconer’); Koani v The Queen (2017) 263 CLR 427, 437–8 [26] (Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ).

The close relationship between the requirement that an act or omission be conscious, and that it be voluntary, is apparent from the decision of the Full Court in Tait. In that case, the appellant was convicted of the murder of his elderly mother. Evidence was given by two psychiatrists to the effect that the act of the appellant that caused the death was done while his mind was in a state of clouded consciousness, and that he was suffering at the time some loss of consciousness. The three grounds of appeal concerned the directions given to the jury as to the requirement that the act of the appellant be conscious and voluntary. The Full Court, dismissing the appeal, stated:

Where the voluntariness of an act is put in issue by the evidence, it is of course necessary for the trial judge to instruct the jury as to what is involved in this ingredient of the crime and how the law is to be related to the evidence. What is essential is for the jury to understand that the Crown must prove that the act causing the death is the act of the accused in the relevant sense.
In our view, no set form of words is essential, and we do not accept Mr Cummins’s submission that the words ‘the mind must accompany the act’ must necessarily be used in order to direct the mind of the jury to the issue which confronts it, although in some cases it may well constitute an appropriate direction. Whatever form of words is used, the important thing, in our opinion, is that it should give the jury to understand that it must be proved that the act which causes the death is the product of the exercise of the will to act of the accused. We refer to Ryan v R.[9]

[9]Tait [1973] VR 151, 154 (Winneke CJ, Gillard and Menhennitt JJ) (citation omitted).

As discussed, when considering ground 7, the principal issue, in relation to charges 1–5, was whether the jury was satisfied beyond reasonable doubt, that the dangerous driving of the applicant was conscious and voluntary. In the context of the evidence concerning the applicant’s sleep apnoea, the critical question, therefore, was whether the jury could exclude the reasonable possibility that, at the time at which the applicant drove the taxi towards the intersection, his consciousness was so diminished, by the effects of sleep apnoea, that his mind was not capable of recognising or responding to the visual signs that confronted him as to the approach of the intersection at which he was required to give way to vehicles passing along Turnbull Road.

In the absence of the evidence of Dr Swieca and Professor Mansfield, the conclusion was inescapable that in driving his vehicle towards the intersection, the applicant failed to pay proper attention to his driving to the extent that he failed to notice two signs that warned him of the approach to the intersection, that he failed to perceive the ‘Give Way’ sign at the intersection, and that he failed to brake or materially decelerate on his approach to the intersection. In those circumstances, in the absence of the evidence of those two experts, it would be presumed that the applicant had sufficient mental capacity that his conduct was both conscious and voluntary.[10] As such, the applicant bore an evidentiary onus to adduce evidence that his conduct was not conscious and voluntary in the manner described.[11]
[10]Ryan (1967) 121 CLR 205, 215 (Barwick CJ).
[11]Falconer (1990) 171 CLR 30, 61 (Deane and Dawson JJ).

The question, then, is whether the evidence adduced at the trial, and in particular the evidence of Dr Swieca and Professor Mansfield, was such as to give rise to a reasonable hypothesis that the applicant’s conduct was not conscious and voluntary, and whether it was open to the jury on the evidence to exclude that hypothesis beyond reasonable doubt.

In order to resolve that question, it is necessary to return to the evidence of Dr Swieca and Professor Mansfield. Two important points, about the evidence of those witnesses, must be noted. First, the credibility and reliability of the evidence given by those witnesses was not in issue at all. The prosecution did not seek to contradict or impugn the basal premises which underlay the evidence of each of those two experts. Secondly, the critical aspects of the evidence, given by Dr Swieca and Professor Mansfield, were based on their expertise concerning sleep apnoea. The nature and effects of sleep apnoea were essentially matters for expert evidence. That sphere, of human understanding, is well outside the ordinary level of knowledge and experience of members of the community, including jurors. Thus, consistent with the usual jury direction, it was not for the jury to arbitrarily reject or ignore the underlying premises contained in the evidence given by either of the experts. As we have stated, the reliability and credibility of that evidence was not in issue. Rather, what was in issue, and what was required to be determined by the jury, was the effect of that evidence, and in particular, whether it raised a reasonable doubt as to the requirement that the prosecution prove that the conduct of the applicant in driving his vehicle at the critical time was conscious and voluntary.

It was not in issue at the trial, nor on the current application, that the evidence of Dr Swieca and Professor Mansfield was sufficient to satisfy the evidentiary onus on the applicant, so as to raise the hypothesis that, at the time at which the applicant was approaching the intersection, he was experiencing a series of microsleeps, or his consciousness was so otherwise incapacitated, as a result of his sleep apnoea, that his mind was incapable of recognising and responding to the visual signs of the approaching intersection that confronted him. The critical question, then, was whether it was open to the jury to be satisfied, beyond reasonable doubt, that the applicant’s mental faculties were not incapacitated in that way at the time at which he was alleged to have been driving his vehicle in a dangerous manner.

There was, of course, no direct evidence, raising the reasonable possibility that the applicant’s mental state was debilitated in that way. However, that is not surprising, in light of the evidence of both experts that a person, in the position of the applicant, would have not been aware of his state or lack of consciousness. There was, on the other hand, a not insignificant body of evidence in the case that raised a reasonable possibility that, despite the applicant believing that he was awake as he approached the intersection, nevertheless, due to his severe condition of undiagnosed sleep apnoea, his consciousness was so debilitated that he was incapable of assimilating and responding to the visual signs that confronted him warning him of the approach of the intersection and of his obligation to give way to vehicles travelling along Turnbull Road at the intersection.

First and foremost, the evidence demonstrated that at the time of the collision, the applicant had been suffering from an undiagnosed very severe form of sleep apnoea. Dr Swieca found, on testing, that the applicant experienced sixty-nine interruptions in his sleep per hour. That is, he experienced more than double the amount of interruptions that placed him in the severe category of that condition. Secondly, the evidence of both experts, to which we have referred at some length, was that a common effect of sleep apnoea, and particularly those who suffer from severe sleep apnoea, is a tendency to experience diminished consciousness at inopportune times. Dr Swieca described that consequence of sleep apnoea as follows:

[T]he early on things are a tendency towards drowsiness at an inopportune moment. I think called excessive daytime sleepiness. Unfortunately it’s only about half the patients who self-rate their level of sleepiness would rate themselves as sleepy, even with the severe forms of the disorder. … [T]hat affects short term memory, concentration and, importantly, vigilance at prolonged tasks and unfortunately the driving task is one of those tasks.

Thus, an established consequence of the form of sleep apnoea, suffered by the applicant, was a tendency to diminished concentration and vigilance while performing tasks that are ordinarily part and parcel of driving.

In the present case, it is particularly relevant that, just two hours after the accident, the applicant fell asleep in the emergency department of the hospital while he was waiting to undergo a blood test. Dr Swieca and Professor Mansfield each found that circumstance to be particularly pertinent. As they both noted, an emergency department in a hospital is particularly busy and noisy at any time. The applicant had just been involved in a traumatic motor vehicle accident. In those circumstances, it is most unlikely that a person, in a full state of consciousness, would involuntarily fall into sleep. Yet that was the state that he was observed to be in at 5.33 pm by Senior Sergeant Richards. That circumstance was cogent circumstantial evidence. In short, the evidence that two hours after the accident, in those circumstances, the applicant was in such a state of reduced consciousness, cogently supported the inference that his mental state was, to a similar extent, so impaired at the time at which he drove his vehicle towards the intersection immediately before the fatal collision.

In his final address at the trial, the prosecutor placed considerable weight on the evidence given by the applicant that, to his knowledge, he was awake at all times at which he drove towards the intersection. Counsel for the respondent, on this application, similarly relied on that aspect of the evidence. It was contended that the jury was entitled to conclude from the evidence, beyond reasonable doubt, that at the critical time the applicant’s mental state was not diminished to the extent that his conduct in driving the taxi was not conscious and voluntary.

On analysis, the evidence that the applicant gave at trial, that he believed that he was awake when he was driving towards the intersection, could not exclude, as a reasonable hypothesis, the possibility that he was in fact at that time in a state of diminished consciousness. In that regard, it is particularly significant that the applicant, when interviewed by police, on the same evening commencing at 7.00 pm, did not remember that, some one and a half hours earlier, he had been observed to fall asleep and to be snoring loudly. The evidence of both Dr Swieca and Professor Mansfield was that it is not uncommon for persons, who are affected by sleep apnoea, to be unaware that they suffer from daytime drowsiness. Dr Swieca stated that only about 50 per cent of patients with sleep apnoea would rate themselves as being pathologically sleepy. Professor Mansfield stated that it had been estimated that 20 per cent of people, with severe sleep apnoea, report minimal symptoms during the day. He considered that that was because those persons’ ‘frame of reference might be distorted’. In cross-examination, when the prosecutor put to him the evidence given by the applicant, Professor Mansfield responded that that evidence did not suggest that the applicant was in fact awake at the time at which he approached the intersection. He said that the majority of people in such ‘drowsy states’ would regard their level of consciousness as more likely in keeping with wakefulness than sleep, particularly where they were transitioning in and out of sleep.

The prosecution at the trial, and the respondent on this application, also relied on two further pieces of evidence to support the jury’s conclusion that the driving of the applicant was a conscious and voluntary act.

First, the prosecution, and the respondent on this application, pointed to the fact that, over a distance of 200 metres or more on the approach to the intersection, the applicant had been able to maintain sufficient control of his vehicle in order to steer it in a straight line along the roadway. Both the CCTV footage from the taxi cab, and the footage taken from the police vehicle on the later drive through, established that level of capacity of the applicant. However, that fact, of itself, was of little weight, in light of the expert evidence that where patients, suffering from sleep apnoea, suffer daytime episodes of excessive sleep, nevertheless their automatic behaviours continue unaffected. As we have earlier noted, Dr Swieca said:

[T]here’s a test known as a psychomotor vigilance task which is designed to assess … reaction times, and what we see in patients such as this is prolonged times to react and at times complete lapses where the — a light goes on and they don’t respond, even though by looking at them behaviourally and monitoring the brainwave patterns they’re technically awake.
…
They will continue doing what they were doing beforehand even though what was actually necessary in that situation would be to react.

The second, and related, piece of evidence relied on by the prosecution was the CCTV footage from the cab of the taxi, which recorded vision of the applicant’s movements in the period immediately before the collision.

It was, of course, a matter for the jury to draw its own particular conclusions from that footage. The value of that footage was, to some extent, limited, in that it comprised a series of frames, rather than a continuous film. It does depict some movements of the applicant’s head, albeit rather minor. However, what was relevant, for the jury to consider, was the interpretation of the footage by the two experts.

The footage was not put to Dr Swieca, either in evidence-in-chief, or cross-examination. However, some of the evidence that he gave was relevant to the conclusions that may be drawn from the footage. He said:

[T]he situations … where patients can be quite inattentive, unresponsive to their environment, can occur where behaviourally they appear awake. So eyes are open, head looking straight ahead, brainwave patterns still look like wakefulness, but in terms of their brain response that’s that neurophysiologic response, their brain’s response to their environment is impaired, and that may either create slowed reaction times or a complete failure to respond to a stimulus such as a hazard on the road in this case.

He then agreed with the proposition that such a person can be physically awake, but, because of his condition, completely fails to appreciate the situation and respond to it.

Professor Mansfield did view the CCTV footage. Having done so, he said it was not possible for him to comment on the possibility that during the period depicted on it the applicant was suffering a microsleep. The fact that the applicant maintained a seated posture meant that he was not in an established sleep. But the CCTV footage did not exclude the possibility, which he regarded as a reasonable possibility, that the applicant was at that time experiencing episodes of microsleeps.

It is important to keep in mind that the evidence of both experts, as to that matter, was uncontradicted, and was based on their particular field of expertise. While the issue, whether the applicant’s conduct was conscious and voluntary, was a question of fact for the jury, nevertheless that determination was required to be based on the evidence that was adduced at the trial. That evidence included the opinions expressed by each expert, based on their diagnosis of the applicant’s condition, and the evidence that had been put to them of the circumstances of the accident and the circumstances of the applicant while he was in hospital. Based on those matters, they each considered it was reasonably possible that, at the critical time at which the applicant drove towards the intersection, he was either experiencing microsleeps, or he was in a transition state towards such sleeps, such that his state of consciousness was so compromised that his mind was incapable of assimilating and responding to the visual signs of the approach of the intersection and of the requirement that he give way to vehicles travelling across it.

For the reasons we have discussed, in our view, none of the evidence, relied on by the prosecution, could logically or properly exclude that possibility. We reach that conclusion fully conscious that, ordinarily the question, whether the conduct of an accused person is conscious and voluntary, is essentially a question of fact for a jury, and not for an appellate court. However, in this case, little weight can be attached to the jury’s verdicts on that matter, for, as we have already concluded, the jury was given erroneous direction as to the critical issue that it must determine.

Accordingly, we have a reasonable doubt as to the guilt of the accused, as we are unable to exclude the reasonable hypothesis that, at the time at which the applicant drove his vehicle towards the intersection, he was, as a result of his undiagnosed condition of severe sleep apnoea, mentally incapable of assimilating and responding to the signs which warned him of the approach of the intersection and of the requirement that he give right of way at it. Further, we do not consider that the jury, if properly instructed as to the issue, could reasonably have excluded that hypothesis as being reasonably open on the evidence that was presented to it at the trial. In other words, the jury, if properly instructed, could not have been satisfied, beyond reasonable doubt, that the conduct of the applicant, in driving towards the intersection, was conscious and voluntary.

We have reached that conclusion for the reasons that we have expressed above. In essence, and at the risk of repetition, they can be shortly summarised. In the immediate lead up to the collision, the applicant was driving in a responsible manner well within the speed limit. He had not been consuming alcohol or drugs. For no explicable reason he did not heed three signs warning him of the approach of the intersection, and of his obligation to give right of way at it. The CCTV footage depicted the applicant looking ahead, and, from a physical point of view, paying attention. He was not distracted by any extrinsic factor, such as by a passenger’s conduct, by something he observed on or near the roadway, or by attending to something on his dashboard or his telephone. No such distraction could account for his failure to heed and react to the signs of the approach of the intersection.

At the trial, there was a cogent body of evidence that raised, as a reasonable explanation for the applicant’s failure to heed the signs and give way at the intersection, the possibility that his consciousness was so debilitated by the effects of his undiagnosed condition of severe sleep apnoea that he was not, from a cognitive point of view, capable of heeding or responding to the signs warning him of the intersection.

Unbeknown to the applicant, in the time preceding the accident, and at the time of the accident, he had been and was suffering from a very severe form of sleep apnoea. He was examined and treated for that condition by Dr Swieca and Professor Mansfield. Both witnesses, as experts in their particular field, gave evidence as to the effects of such a condition on a person such as the applicant, including its potential, in the critical time leading up to the accident, to have caused the applicant to have been suffering a series of microsleeps, or to have caused his consciousness to have been so depressed that he did not have the capacity to absorb and respond to the warning signs of the intersection. The evidence that, just two hours later, the applicant involuntarily fell asleep in the noisy and distracting atmosphere of the emergency department of the hospital, lent particular weight to the possibility that he was, at the time of the accident, so suffering from the effects of sleep apnoea that his conduct was not conscious and voluntary. Finally, and relevantly, both experts expressed the view, based on their expertise, and on their examinations and (in the case of Dr Swieca) treatment of the applicant, that there was a reasonable possibility that in the critical lead up to the accident, he lacked sufficient consciousness to be able to respond to the signs of the intersection and of the approach of the intersection.

In those circumstances, we are satisfied that there was a reasonable possibility, on the evidence, that the applicant’s conduct at the time of the offending was not conscious and voluntary. That conclusion does not mean that his conduct was not conscious and voluntary. Nor does it necessarily mean that on the balance of probabilities his conduct was not conscious and voluntary. However, the conclusion is inescapable from the evidence, first, that a reasonable hypothesis, explaining his failure to observe the signs and react to them, was that his conduct was not conscious and voluntary, and, secondly, that based on the evidence, a jury could not exclude that hypothesis beyond reasonable doubt.

For those reasons, a jury, properly instructed, could not have been satisfied beyond reasonable doubt, on the evidence adduced at the trial, that the applicant’s conduct was conscious and voluntary. Accordingly, it was not open to the jury, if it was properly instructed, to have been satisfied beyond reasonable doubt of the guilt of the applicant.

For those reasons we would uphold ground 1 of the application for leave to appeal, allow the appeal, and quash each of the convictions on charges 1–5.

Summary of conclusions

For the foregoing reasons, grounds 1, 2, 4, 5 and 7 of the application for leave to appeal against conviction must succeed. In those circumstances, it is not necessary for us to consider grounds 3 and 6.

Accordingly, the applicant will be granted leave to appeal, and the appeal allowed, on each of those grounds. As a consequence of our conclusions on ground 1, the verdicts entered against the applicant in the County Court on charges 1–5 must be quashed, and the convictions of the applicant on each of those charges on the indictment be set aside. In lieu, the verdicts and judgment of not guilty on each of those charges should be entered.

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[2020] VSCA 79

3 April 2020