Jiminez v The Queen
[1992] HCATrans 35
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IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S45 of 1991
B e t w e e n -
MICHAEL JIMINEZ
Applicant
and
THE QUEEN
Respondent
Application for special leave
to appeal
MASON CJ
BRENNAN J
DEANE JDAWSON J
TOOHEY J
GAUDRON J
MCHUGH J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 5 FEBRUARY 1992, AT 11.37 AM
Copyright in the High Court of Australia
Jiminez 1 5/2/92
MR P.J. HIDDEN, QC: May it please the Court, I appear with my learned friend, MR K.O. EARL, for the applicant.
(instructed by Baker & Edmunds)
R.N. HOWIE, QC: If it please the Court, I appear with my
learned friend, MR M. LATHAM, for the respondent
Crown. (instructed by the Director of Public Prosections (New South Wales))
MASON CJ: Mr Hidden? MR HIDDEN: Your Honours, this is an application for special leave to appeal against the decision of the Court of Criminal Appeal of New South Wales, dismissing the applicant's appeal to that court from his
conviction and sentence in the district court upon
a charge of culpable driving. Might we hand to
Your Honours an outline of argument.
MASON CJ: Yes, Mr Hidden.
MR HIDDEN: If the Court please. Your Honours, culpable driving is an offence created by section 52A of the
New South Wales Crimes Act. The allegation, in
.,
this trial, was that on 14 June 1988 at about 6 am
at a spot in the Pacific Highway about
30 kilometers north of Kempsey, the applicant drove
his vehicle in a manner dangerous to the public, as
a result of which he came into impact with a tree,
as a result of which a female passenger was killed.
Your Honours, the facts shortly were these:
the applicant the previous day apparently had been
at the Gold Coast in Queensland. Prior to 11.00 pm
on that day he had had about four hours sleep and
had had a meal. He left the Gold Coast in the vehicle with his three companions at about that
time and for about the first 400 kilometres of the
journey south one of his female companions, in fact
the lady who was killed, drove. During that time
he slept in the car as, it seems, did the other
passengers. At around Coffs Harbour he took over
the wheel himself and drove, it seems, something of the order of 200 kilometres to the spot where the
.accident occurred. During that time, it seems, the
female passengers themselves were asleep. At the
relevant time there was fog and the road waswinding. At the point in question he approached a
right-hand curve which the vehicle failed to
negotiate. It ran off the road, it struck one tree and then came to rest against another.
Now, Your Honours, the history leading to the accidents and the course of driving involved in it
was evidenced almost entirely by conversations
between the applicant himself and the police and
Jiminez 2 5/2/92
they were the foundation of the Crown case. To Constable Senz, who first arrived at the scene -
this is at page 7 of the application book,
Your Honours - asked what happened:
He said, "I went to sleep".
This is just above line 15, Your Honours. Asked
where he had come from:
He said, "We left Brisbane last night".
It seems from other evidence in the case,
Your Honours, that it was the Gold Coast and that is where he insisted he had come from.
Subsequently at the hospital to which the lady
was taken he was asked by Sergeant Brennan -
this appears at page 21 of the book,
Your Honours, just at about line 12 - asked
what had happened. He said: Janelle -
being the lady who died -
drove from the gold Coast. She drove for about 400 kms. I took over driving about Coffs Harbour somewhere. I think I was travelling around a right hand curve and on to
a straight section of road. I think I was travelling 80 to 100 kph. I think I must have gone to sleep. I woke up and the car was out of control to the left side of the road. I tried to control the car but I think I hit a
tree.
Now, Your Honours, later the applicant was
interviewed formally by Sergeant Cornes, and indeed
a record of the interview was made, but was not in
evidence before the jury, for various reasons, ··
partly because it was unsigned and partly, I gather, because it had some material in it which
His Honour felt would be excised.
The reading of the record of interview to the
jury appears in the book, Your Honours, at pages 18
to 20. The significant parts of it, Your Honours, are these: page 18 at line 50 he was asked:
Q. How did the collision occur? A. I really
don't know. Before the accident there was a
lot of fogs in the road, I lost control of
car.
Jiminez 5/2/92 I should interpolate, Your Honours, the applicant
is Argentinian and his English apparently was not
fluent. He went on: Everybody was asleep, the three girls and then
it happened. It was just for a second. I lost control when I fell asleep. I'm not sure
what happened. Q. What is the last thing you remember before losing control? A. I was in
the road the last thing I remember. Before
the accident I was going down a hill. The road goes around to the right and then I lost
control of the car. I hit the tree.
Again he said his speed was between 80 and 90
kilometres per hour. He went on, Your Honours, to describe his efforts to correct the action of the
vehicle which he said were unsuccessful. At
line 25 he was asked:
Q. In answer to Q 29 you said in part, I lost
control when I fell asleep, were you feeling
| .,. | tired prior to the collision? A. I don't know |
| what happened, I was driving, I was thinking | |
| about stopping in the next town. The heater | |
| was on. |
Asked how much sleep he had, he said:
About 5.00 o'clock in the afternoon I went to
bed for four hours -
and then went on to describe the course of sleep
which we have already mentioned, Your Honours.
DEANE J: How long would that have been do you understand? MR HIDDEN: In the car, Your Honours? If it were
400 kilometres it would have to have been, one
would have thought, at least four hours, something
of that order. I do not know whether there was specific evidence as to the length of time of sleep in the car.
McHUGH J: They set out on the journey at 11 pm.
MR HIDDEN: Yes. Your Honours, my learned junior assures me - I cannot quite find the reference - that there
was evidence that on his account he took over thedriving at about 3 to 3.30 am.
DEANE J: So it would be about four hours.
MR HIDDEN: Yes, Your Honour. Indeed, it is at page 18 of
the book at line 50. Your Honours, in his statement to the jury in the trial which appears at
page 22 of the application book, the applicant
Jiminez 4 5/2/92 maintained much the same account. At line 9 he
said:
When I take over the car, when I look over the
car sorry, it was about 3.30 am. I was feeling fine. I had already sleep before we left the Gold Coast because at about 5.00 pm I
went to bed for four hours. Then I had something to eat and we left.
He described the windy road. He said: I had lights and demisters because of the fogs and the darks.
He said at line 18:
I was going to stop at the next main town for breakfast because it was nearly breakfast time
for us. I was going to drive another two hundred kilometres before Janelle would take
over again. I didn't feel like sleeping at
all. Suddenly my car was off the road. I think I must have closed my eyes for a second.
When I opened my eyes the car was off the road
and I lost control.
Your Honours, the only other matter in the
evidence apart from the applicant's conversations
with the police was evidence from a Salvation Army chaplain, Mr Watson, who had attended the scene of the accident and indeed, it would seem, spent some
time counselling and comforting the applicant
himself. Subsequently the applicant returned to
his home where the applicant slept for about three
or four hours. Your Honours, that basically was the evidence in the trial.
In the summing up at pages 28 to 29 of the
application book, His Honour gave the jury the
usual directions upon driving in a manner
dangerous, drawn directly from the decision of the former Chief Justice Sir Garfield Barwick in
McBride, a case to which we will turn in a moment,
but beyond that, gave no further guidance as to the
law applicable to the case at hand.His Honour then later, at pages 34 to 37 of the application book, summarized the submissions of
counsel. It is clear that the primary submission
of counsel for the applicant at the trial was thatthe applicant had no warning that sleep might come
upon him. It seems that that was the primary factual submission made to the jury and put to the
jury by His Honour in the course of summing up.
Jiminez 5/2/92 DAWSON J: What was the real allegation as to what constituted the offence? Was it the condition of
the accused? Was it the movement of the car which he allowed to take place, in which case you would wonder was he voluntarily doing that at the time?
MR HIDDEN:· Yes. Your Honours, that is, with respect, a
little unclear. What is clear from the evidence, of course, is that there was no evidence of his
being under the influence of alcohol or driving at
any excessive speed. Indeed, there was no evidence
before the jury of any erratic or dangerous driving
prior to the vehicle running off the road.
In answer to Your Honour Mr Justice Dawson's
question, we can only take Your Honours to that
part of the summing up which dealt with the Crown's
submissions to the jury. That commences at page 34
of the application book. At line 9 His Honour
said:
The issue is, was his manner of driving when
| .,, | his car left the road dangerous to the public? |
| The Crown say to you that it seems clear he became tired, he closed his eyes and the car | |
| left the road. |
His Honour went on to refer to the applicant's conversations with the police, and in particular at
line 20 the significant answer which appears at the
bottom of page 18 of the application book
concerning:
Everyone was asleep, the three girls and then
it happened.
DEANE J: What page is this, Mr Hidden?
MR HIDDEN: I am sorry, Your Honours, this is at page 35, I
should say. I have misled Your Honours as to the page number. It is page 35 of the application book. His Honour referred to the conversations
with the police, and indeed in another context we
will return to this passage, but at line 20 His
Honour says:
The Crown reminded you that his answer was -
that is, asked how the collision occurred -
"I really don't know. Before the accident
there was a lot of fogs in the road. I lost control of the car. Everyone was asleep, the
three girls and then it happened. I was just
for a second, I lost control when I fell
asleep again -
Jiminez 6 5/2/92 the word was in fact not said by the applicant
I'm not sure what happened." That answer to
the sergeant the Crown ask you to reflect upon
and to evaluate and to attribute to it such
importance as you see fit.
DAWSON J:
He seems to be suggesting there that it was the driving before he fell asleep which was the
relevant driving, at which stage it might have been impeccable, even though his condition was - - - MR HIDDEN: I suppose it boils down to this, Your Honours: I should refer Your Honours also to page 34 of the
application book where the Crown submissions were
begun to be put. Indeed, at line 20:
The Crown say that it is for you to assess the
Accused's driving of the BMW car when it left
the road and hit a tree.
DAWSON J: That is only referring to driving after - - -
MR HIDDEN: Yes. TOOHEY J: But is not the complaint one of driving without
proper control over the vehicle?
MR HIDDEN: The complaint is driving in a manner dangerous to the public which, in our submission, means
consciously driving in the sense of driving by
virtue of a voluntary act in such a way as to fall seriously below the standards of a prudent driver.
DEANE J: Must not the case, at its highest, against you be
at page 35, lines 11 and 12? That is:
The Crown says to you that it seems clear he became tired -
being tired -
he closed his eyes -
and continued to drive. I am not saying that is open but that is surely the crux of the case
against you, at the highest?
MR HIDDEN: That is correct, Your Honour, although, of
course, that sentence can be read another way and,
indeed, I must confess I, myself, had read it in
this way, that is that:
he became tired, he closed his eyes -
that is simultaneously -
Knight(2) 5/2/92
and the car left the road.
It does seem, Your Honours, that - - -
DAWSON J: If you put it that way, the dangerous driving was
driving a car with his eyes closed.
MR HIDDEN: Yes, if that is what the Crown is submitting>
But as we apprehend the law, Your Honours, if he is
driving his car with his eyes closed because he is
asleep, he is not driving the car.
DAWSON J: It is not a voluntary act.
MR HIDDEN: Precisely. It does seem, Your Honours, as the
Crown's submissions are summarized in the
application book, if the summary of the Crown
submissions is fair, the Crown does not seem to
have grappled with the question of warning of
impending sleep. The defence, on the other hand, did and it is clear from His Honour's summary of
the defence submission that that was their prime
assumption, that the applicant had, on the
...
evidence, no warning of impending sleep. It was in
that manner that the defence case was put to thejury.
But we do, indeed, say, Your Honours, that in
this case the course of driving which was said to
be the driving in a manner dangerous was never
satisfactorily identified, as a matter of fact, let
alone the applicable law being applied - being
expressed by His Honour, that course of driving
having been identified.
TOOHEY J: In a sense it was, Mr Hidden. I mean, if you put to one side the question of falling asleep for a
moment, you have somebody who drives a car that
simply for no explained reason goes off the road
and hits a tree. That might be enough under
ordinary circumstances to demonstrate that someone
was driving in a manner dangerous to the public. Now, there is evidence here that the man fell
asleep momentarily. What impact does that have on what might otherwise be a fairly straight-forward
case?
MR HIDDEN: Your Honour, we would submit that if that is the state of the evidence, then it is a nice point
whether that gets the case to the jury. It may, in
the sense that it is a prima facie case, but itcould never be sufficient to found a conviction
because there must be proved, to found a conviction
on this basis, that the driver knew or ought to
have known that he might fall asleep; or, perhaps
putting it preferably, that the driver had warning
of the danger of impending sleep.
Knight(2) 8 5/2/92 DAWSON J: If you are put it that way, then you are saying
that the dangerous driving is the condition of the
accused?
MR HIDDEN: Yes. DAWSON J: Well, that cannot be right, can it? You need not
bother about driving under the influence or
anything. You just charge everyone with dangerous driving.
MR HIDDEN: Your Honour, as we understand the law as it was stated by the Court of Criminal Appeal in South
Australia in Kroon, a case to which we will turn,
the dangerous driving would be driving, either
knowing that you might fall asleep or in
circumstances where you ought to know that you
might fall asleep.
DAWSON J: At the moment I do not understand that. If you
driving impeccably you are not driving dangerously
even though there is a danger that you might, at a
given moment, cease to drive impeccably.
MR HIDDEN: Yes. We understand what Your Honour says and must confess we had not come here prepared to
extend the argument that far.
McHUGH J: I have a more fundamental difficulty. I have some difficulty in understanding what sleep has got
to do with this case, because the section in termsrequire the manner of driving be dangerous at the
time of the impact. At the time of the impact your
client was awake.
MR HIDDEN: Yes, that is so, Your Honour.
McHUGH J: Is not the relevant point that one has to
determine whether he was driving in a manner
dangerous at the time of impact and he is in avehicle that is careering off the highway; he is
awake and in control of it.
MR HIDDEN:
We would submit, the only inference to be drawn, Your Honours, is that at that time he is awake but
not in control of it. Now, Your Honours, we - - - McHUGH J: But that constitutes the dangerous driving, does
it not, that he is not in control of the vehicle?
MR HIDDEN: Yes. Your Honours, we would accept that if -
indeed it seems clear from authority. Even if a vehicle is beyond the driver's control at the time
of impact, if that is the direct result of and
virtually contemporaneous with a conscious courseof dangerous driving, it is no defence to say,
"Well, when I actually hit the tree I could not
Jiminez 9 5/2/92 control the thing", but if prior to the vehicle
leaving the road there is no dangerous driving, and
if the vehicle leaves the road only because sleep
has overcome the driver, and if the driver then
wakes and the vehicle is beyond his control thenthere is not dangerous driving at any stage, in our
submission.
TOOHEY J: You seem to be using the sleep factor in one of two ways, or both ways, I think, Mr Hidden, and
that is not to say it may not be legitimate, but
one is to say that somehow awareness of the
likelihood of falling asleep bears upon whether the
person was driving dangerously, the other is to say
that by falling asleep or having fallen asleep what
happens thereafter is involuntary?
MR HIDDEN: Yes. TOOHEY J: Which is not the same thing by any means?
MR HIDDEN: Your Honour, precisely. If Dennis v Watt in New
| ,, | South Wales and Kroon in South Australia be |
| accepted as the applicable law, then driving in | |
| circumstances where you know you might fall asleep | |
| or you should know you might, may incur criminal | |
| liability. Whether it incurs criminal liability | |
| for negligent driving or driving in a manner | |
| dangerous depends on the circumstances. |
If an accident results from the vehicle
running out of control after you have gone to sleep, then it is open to a jury to link that
accident with the course of driving when you were
conscious and characterize the course of driving
when you were conscious as dangerous because of
your knowledge, actual or imputed, of the danger of going to sleep. But, on any view of it, the course
of driving once you have gone to sleep cannot, of
itself, be dangerous driving attracting criminal
liability, of itself, because it is not voluntary.
TOOHEY J: Yes, I think I see that. MR HIDDEN: Yes. DAWSON J: On the other hand, if he closed his eyes intentionally and continued to drive, that would be
driving in a manner dangerous.
MR HIDDEN: Well, it may be, Your Honour, again, depending
on the circumstances. It may, in other
circumstances, be negligent driving only. It
depends rather on where you are. But yes, it may
be behaviour which ought attract criminal liability
of one sort or another. One of the other difficulties in this case, Your Honours, in our
Jiminez 10 5/2/92 submission, which was perhaps not expressly argued
in the Court of Criminal Appeal, was that - this
was a case where, in our submission, the jury had
to be carefully directed as to the varying degrees
of carelessness requisite to negligent driving, on
the one hand, and driving in a manner dangerous on
t1le other, and that was never done.
BRENNAN J: Why do you say that had to be done? MR HIDDEN: Well, His Honour in fact did not do so and we
would submit that this is - indeed, it may be,
Your Honours, that in every case of culpable
driving that distinction ought be made but we would
submit it certainly should in a case like this.
BRENNAN J: Why? Why does the judge have to refer to negligence at all in a case of culpable driving?
MR HIDDEN:
Your Honours, because juries have, or lay people have, by and large, an amorphous, unparticularized
sense of careless or dangerous driving. The law, however, graduates offences quite specifically according to the degree or carelessness involved. BRENNAN J: Is that right? I thought the whole thrust of Coventry's case was that carelessness was not a
relevant consideration; that it was an objective
standard that was applied.
MR HIDDEN: Yes, Your Honour. It is not a defence.
BRENNAN J:
No, it has nothing to do with the elements of the offence.
You do not have to prove negligence.
MR HIDDEN: With respect, Your Honour, we would submit you
do, that driving in a manner dangerous is - - -
BRENNAN J: What is the authority for saying that you have to prove negligence in a culpable driving case?
MR HIDDEN: Primarily, Your Honours, Reg v Buttsworth, a decision of the Court of Criminal Appeal of New
South Wales in which the leading judgment was given
by Mr Justice O'Brien.
Your Honours, Buttsworth is reported in (1983)
1 NSWLR 658. It is sufficient to turn to
His Honour's judgment, commencing at page 664.
Your Honours it is a lengthy judgment, and it is
probably not helpful to take Your Honours to it in
detail. Basically, what His Honour does is to look
at the history of the development of criminal
offences based on negligence. His Honour points
out that at common law the only crime based on
negligence was manslaughter, that is, death bycriminal negligence, which has long been recognized
Jiminez 11 5/2/92 at common law, but the onset of motor vehicles and
traffic on the roads brought the intervention of
the criminal law more into the area of negligence,
and there came into existence, in due course, a
graduated series of offences. One was negligent driving simpliciter; the next was driving in a
manner dangerous, and indeed the New South Wales
Traffic Act, formerly the Motor Traffic Act, still has those summary offences of negligent driving on
the one hand, and driving in a manner dangerous on
the other.
There was always motor car manslaughter, but
as His Honour records the history, and as it is
well known, there was a reluctance of juries to
convict of that serious crime where death was
caused by dangerous driving, and it was for that
in 1951, I think. But section 52A pickedreason that section 52A was inserted into the driving
up the expression "driving in a manner dangerous"
which was an expression existing in the law as a
| ., | summary offence and had always been a summary |
| offence more serious than negligent driving. these escalating series of offences from negligent driving to manslaughter is the degree of negligence involved. They are all about negligence. Driving | |
| in a manner dangerous means a degree of negligence | |
| so serious as to be really dangerous to the public. |
BRENNAN J: I must confess I find that at odds with the
language of the section. Why is it that if you see a car being driven in a manner which is dangerous
to the public that you have not thereby established
what might be regarded as the external elements of
the offence, leaving it to questions of
voluntariness or accident, for the carving out ofquestions of criminal responsibility?
MR HIDDEN: Your Honour, because there is also a line of
manner dangerous when charged as a criminal offence authority which establishes that the - driving in a is not an absolute offence in the sense that all that needed to be proved is that the vehicle, in fact, behaved in a way which was dangerous to the public. What needs to be proved is personal fault
on the part of the driver in the sense of a
voluntary act which falls below the standards ofprudence to be expected of a normal competent adequately experienced driver.
BRENNAN J: Why is it not a question simply of whether or not the driver, by his actions or omissions, caused
the car to behave in a particular fashion which isappropriately described as being dangerous?
Jiminez 12 5/2/92 MR HIDDEN: Well, Your Honours, to answer that we can refer
only to authority.
BRENNAN J: And this is the authority, Buttsworth?
MR HIDDEN: This is the one on which we primarily rely, Your Honours, yes. Although it is not the only
one. Perhaps if we can take Your Honours to some
portions of it. At page 672 Mr Justice O'Brien had
been considering the judgment of the House of Lordsin Andrews v Director of Public Prosecutions, a
manslaughter case, and having quoted a passage from
the judgment of Lord Atkin, His Honour said, just
under letter F:
It is, I think, plain from this passage in the
speech of Lord Atkin that he draws a
distinction between driving negligently,
driving in a manner dangerous to the public
and driving of a kind which justifies a
conviction for manslaughter as essentially a
distinction in the degree of negligence
| .,, | appropriate to the offence, a distinction in the degree of department from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances. |
If we can take Your Honours back to the
decision of this Court in McBride v The Queen,
(1965-1966) 115 CLR 44, and that was a decision
dealing with the very section with which we are
dealing in this application, Your Honour. The classic statement which is commonly used as a
direction to juries, Your Honours, commences
towards the bottom of page 49. His Honour said:
The section speaks of a speed or manner
which is dangerous to the public. This
imports a quality in the speed or manner of
driving which either intrinsically in all
circumstances, or because of the particular circumstances surrounding the driving, is in a
real sense potentially dangerous to a humanbeing or human beings who as a member or as members of the public may be upon or in the
vicinity of the roadway on which the driving
is taking place.
A little later His Honour said:
This quality of being dangerous to the
public in the speed or manner of driving does
not depend upon resultant damage, though to
complete the offence under the section, impact
causing damage must occur during that driving. Whilst the immediate result of the driving may
Jiminez 13 5/2/92 afford evidence from which the quality of the
driving may be inferred, it is not that result
which gives it that quality. A person may drive at a speed or in a manner dangerous to
the public without causing any actual injury:
it is the potentiality in fact of danger to
the public in the manner of driving, whether
realized by the accused or not, which makes it
dangerous to the public within the meaning of
the section.
Then the Chief Justice went on:
This concept is in sharp contrast to the concept of negligence. The concept with which
the section deals requires some serious breach
of the proper conduct of a vehicle upon the
highway, so serious as to be in reality and
not speculatively, potentially dangerous to
others. This does not involve a mere breach
of duty however grave, to a particular person,
having significance only if damage is caused
| ,,, | thereby. |
At page 51, at about point - - -
BRENNAN J: It is difficult to see how Mr Justice O'Brien was able to say that the concept was a
misunderstanding of what Sir Garfield has said in
the light of the passage that you have just read.
MR HIDDEN: Your Honour, that is - before parting with McBride, Your Honours, I should take Your Honours
to page 51 at about point 6, where His Honour said:
But where it is the manner of driving, an
expression which can cover a wide and diverse
set of facts, it is not enough that the
vehicle as driven by the accused has caused
death or injury and the accused was negligent,
even in some glaring respect. It is essential
to define what is charged as the manner of driving, so that when that has been found, the
two succeeding questions can be dealt with,
namely, was that manner of driving in itself
or in its circumstances dangerous to the
public and, did the impact which caused the
death or injury occur whilst the vehicle was
being so driven.
Your Honours, if I can take Your Honours back
to Buttsworth, at page 681 Mr Justice O'Brien
quoted that particular passage from McBride at
page SO, that is:
This concept is in sharp -
Jiminez 14 5/2/92
MASON CJ: What page is this in Buttsworth? MR HIDDEN: I am sorry, Your Honours, this is in Buttsworth at 681. Having referred to the passage from the
judgment of Sir Garfield Barwick referring to the concept being in sharp contrast to the concept of
rregligence, His Honour went on:
His Honour is not there saying that it is
improper to distinguish between the offences
of negligent driving, culpable driving and
manslaughter by the degrees of neglect which
they exhibit for the safety of the public,
being the other users or likely users of the
road. He is saying that the trial of any of
these offences must not be converted into thetrial of a civil issue of negligence as
between the driver and the injured party as
can in some circumstances readily occur. The elements which each specify as the degree of
negligence in driving which is required to be
proved must be explicitly defined in the
ascending order of gravity which these
offences represent.
Your Honours, recently the Court of Criminal Appeal of South Australia dealt with the question of culpable driving in a case of Reg v Kamleh,
(1990) 51 A Crim R 435. The Chief Justice, Mr Justice King, after referring to South
Australian authority at 436, and referring to the decision of this Court in Giorgianni, said at the
bottom of the page:
The question is not whether the accused intended to drive, or appreciated that he was
driving, in a manner dangerous to the public
but whether, in the judgment of the jury, a
reasonable person in the situation of the
driver would have appreciated that he was
driving in a manner dangerous to the public. The crime is committed by the act of driving in a manner which any reasonable
person in the situation of the driver would
recognise as dangerous in the sense that it
involves a risk of injury to others which
exceeds the ordinary risks of the road and
a.mounts to a real danger to the public.
Ordinary risks of the road include those
arising from the sort of faulty driving and
lack of care which must be expected, due to
human frailty, from time to time, from the
ordinary driver. The sort of driving which
constitutes this crime is more serious than
that. It is driving which a reasonable person
in the situation of the driver would
Jiminez 15 5/2/92 understand to be such as would give rise to a
serious risk of injury to members of the
public going beyond the ordinary risks of the
road. It is driving which is therefore fit to
be regarded as a serious crime. If the
driving, although negligent, does not go
beyond what might fairly be regarded as an
ordinary risk of the road, a crime of causing
death or bodily injury by dangerous driving is
not committed but the driver is guilty of
driving without due care or attention contrary
to s 45 of the Road Traffic Act - - -
Your Honours, that offence we understand to be
roughly equivalent to our offence of negligent
driving.
TOOHEY J: That seems to me to be a quite different
question, Mr Hidden. Is not the Chief Justice
there seeking to identify the sort of conduct
which, viewed objectively, could constitute
dangerous driving, or which might be identified as
| ,,, | no more than negligent driving? |
MR HIDDEN: Yes, Your Honour, but one wonders really whether we are talking about anything more than degrees of
negligence.
TOOHEY J: But in the present case, if the appellant had not
fallen asleep and no more was known about his
conduct than that he was driving along and for no
apparent reason left the road and collided with a
tree, would it be arguable that that was not
driving in a manner dangerous to the public? I mean, there may be all sorts of explanations: steering may fail; a person may have a heart
attack; all sorts of things which, when known,might convert that conduct from driving in a manner
dangerous to the public to conduct which does not
answer that description. But looking at the events
themselves, is there anything about them which
would enable one to say that it was not driving in a manner dangerous to the public?
MR HIDDEN: Your Honour, that is an extremely difficult question which, in our submission, happily does not
arise for determination necessarily in this
application.
TOOHEY J: You may be right, but it does arise because you are seeking to draw this distinction between
negligent driving, dangerous driving and
manslaughter.
MR HIDDEN: Well, the difficulty with the example
Your Honour has given, in my submission, is that in
the absence of any further evidence it is not
Jiminez 16 5/2/92 possible to identify the voluntary act which caused
the vehicle to behave in that way. Usually, ofcourse, it is. Usually there is evidence, as often
as not by admission, as to how the vehicle came to
behave in that way. But I suppose the scenario
Your Honour is postulating, which has always
troubled us, is the one where, for example, a
vehicle suddenly behaves in a bizarre fashion and
quite a dangerous fashion, not having before been
driven in any erratic way, the driver himself is
injured and suffers retrograde amnesia and there is
just no evidence as to why it happened. I think that may be the situation which Your Honour is
postulating.
I must say, Your Honour, our respectful
submission in that situation would be that there is
no case to answer. But in nine cases out of ten,Your Honour, there is an explanation as to why the vehicle behaved to the observer in a dangerous
manner, and as we said probably in eight cases out
of ten it is by the admission of the accused
| ., | himself who says, "Oh look, I was distracted by | ||
| |||
| my eyes off the road for a minute, or I was feeling | |||
| ill, or I might have nodded off." In almost all cases there is some explanation, so that one can | |||
| centre upon what is, if any, the voluntary act of the driver which caused the vehicle to behave in | |||
| that fashion. |
McHUGH J:
I suppose you know no more than a vehicle being driven at a moderate speed has gone through a
pedestrian crossing and knocked somebody over. MR HIDDEN: Yes.
McHUGH J: Is that evidence of driving in a manner dangerous
to the public?
MR HIDDEN: We would submit, if that is all there is there
is not enough to get to a jury, Your Honour. If that is all there is. If, for example, one has
nothing more than an eyewitness who said, "I saw
this car come down the road and go straight through
a pedestrian crossing and hit someone", and that is
all you have got - - -
McHUGH J: Why can you not draw the inference it was the result of - supposing you knew it was the result of
inattentiveness. Would it then constitute evidence
of driving in a manner dangerous?
MR HIDDEN: Yes, Your Honour. If there is evidence that it
was the result of inattentiveness, then yes.
McHUGH J: Well, why can you not infer it from those facts?
Jiminez 17 5/2/92
MR HIDDEN: Your Honour, simply because there could be so many other explanations, and unless they can be
ruled out you could never attach criminal liability
to that act on that evidence alone. It is really a
factual question.
BRENNAN J:· Mr Hidden, why is it that the analysis of this case is not along the following lines: this car, containing a passenger, was driven off the road and
hit a tree. That driving was negligent. At the
time, however, the driver says that he was asleep.If that were so, his action in driving off the road
might be described as involuntary. But is it
described as involuntary if he had some warning,
and does warning come in, then, to the element ofvoluntariness or no?
MR HIDDEN: Your Honour, as we apprehend the existing
authority, yes, warning is of the essence. If he
had warning of the danger of impending sleep, then
driving in that state of affairs would, on theexisting authorities, be classified as either negligent or dangerous to the public depending on
...
the circumstances in which it occurred.
BRENNAN J: You are putting it on the basis that the warning is an element of the negligence, which you seem to
put forward as being an essential element of the
offence on which this man was convicted.
MR HIDDEN: Yes. BRENNAN J: My proposition to you is that negligence is not such an element but that one looks to the question
of warning or not for the purpose of determining
questions of voluntariness.
MR HIDDEN: I am sorry, would Your Honour be good enough to put that again?
BRENNAN J: The driver in fact drove the car in a way that
was objectively dangerous. Question, did he do so voluntarily? Answer propounded by the defence, no it was involuntary. Applied by the prosecution, it was not involuntary because he had a warning.
MR HIDDEN: Yes. The only difficulty with putting it that way, Your Honour, is that what is the driving? If
he is asleep he is not driving, the vehicle is
behaving in a certain way but he is not driving.
The question then becomes, "Has it been proved,
beyond reasonable doubt, that he had a warning of
inpending sleep?". If that be so, as we understand
the authorities, then the driving prior to his
nodding off is either negligent or dangerous,
depending on the circumstances of the case.
Jiminez 18 5/2/92 DAWSON J: That is where you get into difficulties of
confusing negligence and dangerous driving. It can
be negligent to drive in that condition, clearly,
but it is not dangerous driving, the driving,
itself, is what you are looking at when you are
looking at dangerous driving, the driving is not
negligent.
MR HIDDEN: Yes. DAWSON J: If it were otherwise, for instance the man who
drives who has got a heart condition, he may be
driving impeccably but you could charge him with
dangerous driving because he might pop off at any
minute and so on and so on.
MR HIDDEN: Yes, we appreciate what Your Honours says. DAWSON J: Negligence really does not have anything to do
with it. It is a question of the quality of the driving and of course the Crown has to prove the driving is voluntary at the time that the driving
| ., | was exhibiting that quality which we categorized as |
| dangerous. |
MR HIDDEN: Yes. The only difficulty with that, Your Honours, as we apprehend it, is what criminal
liability flows from an accident where someone is
injured if warning has been proved. You see, Your Honours, the sort of distinction, we would
submit, that is relevant is this: if I had been
tired, and being conscious of some danger of
falling asleep, drive a short distance on a remote
country road from one property to another, as it
happens by sheer bad luck I come into collisionwith the farmer next door who is driving to see me.
Even though I may seriously injure that man or even
kill him, we would submit, in those circumstances,
driving, being aware that I might fall asleep,
would amount to no more in the criminal law than
negligent driving, but if I drove knowing that I
might fall asleep on a busy arterial road, and death or bodily injury was caused to some vehicle
which I struck, then in those circumstances that
driving might be classed as dangerous to the public
not merely negligent.
DAWSON J: You keep corning back to that. Do you concede that the condition of the driver may be sufficient
to constitute driving in a manner dangerous, even
though the driving is impeccable, because if you
do, that may be the end of the case.
GAUDRON J:
It would seem to be a concession at odds with the way in which the section is drafted.
MR HIDDEN: Yes.
Jiminez 19 5/2/92 DAWSON J: Because if that were right, then any driver,
although his driving is not at fault in any way,
could be hauled out of his car and charged with
driving in a manner dangerous, if he happens, at
the time, to be drowsy or suffering from a heart
~ondition or over .OS, whatever it might be.
MR HIDDEN: Yes, we understand what Your Honour is saying, and we certainly do not make that concession.
DAWSON J: You seem to me to be putting the case in that way.
McHUGH J: But was not the Crown case here that your client
became tired and therefore was aware of it and
closed his eyes?
MR HIDDEN: It presumably was, Your Honour. It is never
quite squarely put that way in His Honour's summing
up.
McHUGH J: Well, at page 35, line 11 it is, is it not:
.,,
The Crown say to you that it seems clear he became tired, he closed his eyes and the car
left the road.
And the defence case is put at page 36, line 19:
Counsel for the Accused reminds you that the
Accused had no idea that he would fall asleep
for the split second - - -
MR HIDDEN: Yes. I suppose the first passage to which Your Honour referred is capable of meaning "The
Crown say to you that it seems clear he became
tired", and having become tired, subsequently
closed his eyes. I had rather read that as being contemporaneous.
McHUGH J: Yes, that would be in accordance with the
admission that he was alleged to have made, that he was thinking about stopping in the next town and
the heater was on.
MR HIDDEN:
Your Honour, as Mr Justice Smart in his dissenting judgment pointed out, the more ready
explanation for that was that he had been driving about long enough and had probably planned to make a stop there in any event. DEANE J: He said he was going to stop for breakfast. MR HIDDEN: Yes. DEANE J: Not because he was tired.
Jiminex 20 5/2/92
MR HIDDEN: This accident occurred at 6 am and they had been
on the road since 11 pm. One would think that would be a reasonable time to make a stop and have a meal in any event, whether one was feeling tired
or not.
McHUGH J: · That is one explanation but the explanation to
the police officer did not say anything about
stopping for breakfast, did it? It was left atlarge?
MR HIDDEN: Yes, I believe that is so, Your Honour. I think
that is correct, Your Honour. The question of breakfast was raised in his statement to the jury,
I think.
McHUGH J: His statement from the dock. TOOHEY J: Mr Hidden, could I just ask you this, at the risk
of further disrupting your line of thought.
MR HIDDEN: It may have completely changed now, Your Honour. TOOHEY J: I am not asking for a detailed answer at this stage but is the complaint in this case or is the
argument this, that given the evidence before the
jury any verdict of guilty was necessarily unsafe?
MR HIDDEN: Yes, Your Honour.
TOOHEY J: Or is the complaint rather that the appellant might have been properly convicted had the jury
been properly instructed?
MR HIDDEN: Your Honour, our submission is that properly instructed a jury could not convict on this
evidence. There is, additionally, the complaint
that they were not, in any event, properly
instructed. But even if they had been, we would
submit an acquittal must have followed. A
reasonable jury ought to have entertained a
reasonable doubt, in our submission, in the words of Chamberlain and Morris.
TOOHEY J: Even if properly instructed?
MR HIDDEN: Yes.
TOOHEY J: Thank you.
MR HIDDEN: Your Honours, really, for the reasons given by Mr Justice Smart in his dissenting judgment. It
might be helpful to take Your Honours to those
while we are on this topic.
Now, His Honour was approaching the case on
the basis that the applicable law was that stated
Jiminez 21 5/2/92 by the Court of Criminal Appeal in South Australia
in - sorry, Your Honours, Kroon was not itself
referred to in the course of argument in the Court of Criminal Appeal, but His Honour was approaching the case on the basis that the principles in Kroon ~ere the applicable principles.
At page 109 of the application book, His Honour Mr Justice Smart summarized the relevant
conclusions of fact, or the facts and conclusions
of fact, which might have been drawn and, atpage 110, at line 7:
The jury would have been entitled to conclude
that there had been a long night journey, that
the appellant had driven for about 2 and a
half hours in difficult driving conditions
with the heater on and everyone asleep, and
that he had fallen asleep, even momentarily,
as a result of becoming tired or drowsy.
However, the jury would no~ be entitled to
| ., | conclude that he had had any prior warning or | |
| ||
| evidence does not establish this and I do not | ||
| think that it can be inferred. |
His Honour refers to many people who drive through the night. His Honour said, at line 23:
There has to be a first time when one feels
tired or sleepy. The circumstances revealed in the evidence are not such as to justify the
conclusion that the appellant should have
stopped earlier because there was a real
possibility of him becoming tired and falling
asleep.
McHUGH J: Well, with respect to His Honour, when you look
at page 19, why could not the jury have taken the
view on the evidence that he did have a prior
warning? After all, the question was: were you feeling tired prior to the collision?
It was not directly answered, but the accused did
say:
I was thinking about stopping in the next
town. The heater was on.
Why could not the jury infer from that question and
answer that he was feeling tired?
MR HIDDEN: Well, because, in our submission, Your Honour,
to analyse the answer in that way would be to
analyse it unrealistically. True, the answer was
Jiminez 22 5/2/92 not directly responsive to the question, but
consistently in previous discussions with the
police he said, "I don't know what happened. I must have fallen asleep". The whole thrust of his conversations with the police was that the sleep
c_arne upon him unexpectedly.
McHUGH J: No doubt it did, but the question is, did he have a prior warning and you have got the context about
saying he was stopping in the next town - - -
MR HIDDEN: I am sorry, Your Honour, we mean unexpectedly in
the sense of without prior warning.
McHUGH J: Yes, and he volunteers that the heater was on.
MR HIDDEN: Yes. Well one can readily understand that. Asked, "Were you feeling tired?", his mind would
then turn to matters which might have caused him to
feel tired, whether he did or did not - - -
McHUGH J: Well, I have just put these matters to you,
Mr Hidden. As to whether it was a view open to the jury, like Mr Justice Kirby, it would not have
surprised me if there had been an acquittal in this
case, but the question is: was there a case to go
to the jury?
MR HIDDEN: Well, on the analysis of the law suggested by
Mr Justice Dawson, there probably was not, but if
the Kroon analysis of the law be correct, then
there may have been a case to go to the jury inthat there - - -
GAUDRON J: How do you define the manner of driving on the Kroon analysis, Mr Hidden? What you are saying is
you have got to describe the driving.
MR HIDDEN: Yes. Well, Your Honours, as we understand, on
the Kroon analysis, what the Crown would have to
prove was that prior to running off the road the
applicant was driving the vehicle in circumstances where he knew, or ought to have known, that he
might fall asleep and it was driving with that
knowledge, actual or imputed, which is the driving
in a manner dangerous. That is the Kroon analysis
as we understand it.
GAUDRON J: But that does not say anything about the
driving. That simply says something about the
circumstances.
MR HIDDEN: Yes, we appreciate that, Your Honour. McHUGH J: It also seems to overlook the terms of the
section, artificial as it is, that requires you to
Jiminez 23 5/2/92 be driving in a manner dangerous at the time of
impact.
MR HIDDEN: Yes. McHUGH J: Not before and not after. MR HIDDEN: A number of authorities have said, of course, Your Honour, that that should not be read too
literally in the sense - and one can imagine,
Your Honours, at the time of most impacts the
vehicle is beyond the driver's control. The question is how did it get in that state. Indeed, I think Sir Garfield Barwick in McBride himself
said there is a bit of leeway in that concept, as
did the court in Kroon. We take Your Honour's point, but we can appreciate that to apply that
test too rigidly might make the section unworkable.
The way it is put in Kroon, Your Honours, and
perhaps it is appropriate to take Your Honours to
Kroon, (1991) 52 A Crim R 15 - at the bottom of
| ., | page 18 the Chief Justice Mr Justice King in the |
| last complete paragraph said: |
Every act of falling asleep at the wheel
is preceded by a period during which the
driver is driving while awake and therefore,
assuming the absence of involuntariness
arising from other causes, responsible for his
actions. If a driver who knows or ought to
know that there is a significant risk of
falling asleep at the wheel, continues to
drive the vehicle, he is plainly drivingwithout due care and may be driving in a
manner dangerous to the public.
Again, His Honour draws the distinction between the
two requisite offences.
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.
Indeed, His Honour there refers to the relevant part of the judgment of Sir Garfield Barwick in
McBride.
DAWSON J: There is an offence of just driving in a manner
dangerous, is there not? It is a summary offence,
but - - -
MR HIDDEN: Yes, Your Honour, there is.
Jiminez 24 5/2/92
DAWSON J: And if you test it against that it does mean that a person who is short-sighted and forgets his
glasses but drives with enormous attention and
concentration, arrives at his destination safely,
nevertheless could be charged with dangerous
driving on that analysis.
MR HIDDEN: Yes, it could mean that. DAWSON J: I find that difficult to accept. BRENNAN J:
Mr Hidden, the difficulty I am having is with the passages to which Justice McHugh drew your
attention at pages 35 and 36, where the judge put
to the jury the competing hypotheses as betweenwhich they were to choose. The Crown says to you "that" on 35, and counsel for the accused reminds
you "that" on 36. Now, if one reads the passage on 35 not only in the way in which you first read it,
but as putting to the jury the question, "Did he(a) become tired? (b) close his eyes? (c) the car left the road", what is the special leave point in this case? MR HIDDEN: It may well be that, on any view of it, that is not enough.
BRENNAN J: Why is that not enough? MR HIDDEN: If the driving whilst the driver is conscious is not itself dangerous, the point raised by
Mr Justice Dawson, for a start, that may well be.
BRENNAN J: But if you have warning that you are tired, you
close your eyes and the car runs off the road?
MR HIDDEN: I am sorry, I beg Your Honour's pardon, yes. BRENNAN J: That is not driving in a manner dangerous?
MR HIDDEN: Your Honour, the special leave point, really
arises from the judgment of the Court of Criminal Appeal, of course, not the summing up.
BRENNAN J: We are not really interested in dealing with a case that is hypothetical. If that was the summing
up, that is the summing up.
MR HIDDEN: Yes. The defect in the summing up, in our submission, Your Honours, is not so much the way
the case was put factually but the lack of relevant
guidance on the law provided by His Honour.
BRENNAN J: But if, as a matter of law, it is correct to say
that if you find those facts you may convict, then
is there any error?
Knight(2) 25 5/2/92 MR HIDDEN: There is still the difficulty, Your Honour, and
the jury must be told this, whether those facts
amount to driving in a manner dangerous to the
public as opposed to some lesser criminal offence
or lesser standard of fault. The summing up as a
whole in this case, Your Honour, does not seem to
make it adequately clear to the jury where the
burden of proof lies on this question.
BRENNAN J: What question? MR HIDDEN: On the very question raised by that sentence. One of the difficulties, Your Honour, is that
His Honour gave the general directions drawn from
Sir Garfield Barwick's judgment in McBride but
never squarely said, in the context of this case,
where the burden of proof of warning lay, which was
really - if Kroon be law that is really where -
that was the vital issue in the case; that is that
to convict you would have to be satisfied beyond
reasonable doubt that this driver did have warning
in the sense that he either knew or in the
| ., | circumstances ought to have known that he might |
| fall asleep. |
BRENNAN J: I think I see the argument, but it seems to me that whilst there are all sorts of areas on which
it would be interesting to write an academic
article about the subject and to analyse it interms of negligence or involuntariness, if a jury
is told that that was they had to find beyond
reasonable doubt, if that is a fair construction of
the summing up, this just is not the case to raise
it.
MR HIDDEN: Yes.
DAWSON J: His Honour said that:
The issue is, was his manner of driving when
his car left the road dangerous to the public?
MR HIDDEN: Yes. DAWSON J: On the analysis which appears to be the one that he suggested was one which was being adopted, that
was not the issue. The issue was: was his manner
of driving before his car left the road dangerous
to the public? It is entirely different.
MR HIDDEN: Certainly that is what the Kroon analysis would
ask, Your Honour.
DAWSON J: So he just put it in the wrong way. MR HIDDEN: We must add, Your Honours, that we do submit that to read that sentence at line 11 of page 35,
Jiminez 26 5/2/92 as it has been read this morning, is probably not
what was conveyed by it. We ourselves always read the sentence to mean: "In effect the Crown says to you that it seems clear that he dropped off to
sleep and left the road, that is, became tired,
closed his eyes simultaneously and left the road".
In the context of the summing up as a whole, we
would submit that was more likely the meaning it
conveyed to the jury.
McHUGH J: But is there not a comma after "tired"? I have
put a circle around it.
MR HIDDEN: Not when he said it, Your Honour; that is the problem. Yes, I am sorry, Your Honour, there is in
the text a comma after "tired".
McHUGH J: I cannot see it on mine now because I have put a circle around the passage.
GAUDRON J: And there might be a distinction, might there not, to be drawn, depending on whether he
voluntarily closed his eyes or his eyes closed for
him?
MR HIDDEN: Indeed. Your Honours, I must say we had always read that statement to mean, in effect, it is
common ground that he became tired, closed his eyes
and left the road.
GAUDRON J: Fell asleep.
MR HIDDEN: Yes. That is how we had always read that
sentence in the context of the summary of the
arguments as a whole.
BRENNAN J: Well, no doubt you can read it in a variety of
ways, but it seems a curious thing to grant special
leave and to deal with a case based upon a
direction to a jury which is at least ambiguous and
when there was no objection taken by counsel
appearing at the trial in the manner in which it was put to the jury.
MR HIDDEN: Well, Your Honour, first of all it must be said
was as simple as that.
that it does not seem to have been apparent to the case
BRENNAN J: No doubt because the Court of Criminal Appeal is prevailed upon to consider the interesting
arguments of how many angels dance on the head of a
pin.
MR HIDDEN: Your Honours, by and large it appears true that no relevant redirection was asked, except that
there is the exchange appearing at pages 38 to 39
Jiminez 27 5/2/92 of the application book, the purpose of which is a
little difficult to understand, but it does seem
that counsel then appearing was seeking some
direction in relation to involuntariness. He does not get very far, because having said: Your Honour didn't allude to the involuntary nature of it.
His Honour said:
Neither did you.
And counsel said:
Well I didn't put it in those terms -
and His Honour said:
Yes anything more you want to put to me?
No Your Honour.
.,,
It is not quite clear, Your Honours, what might
have transpired if that argument had been developed somewhat further. But it does mean that some point
was taken about involuntariness not being conveyed
to the jury.
DEANE J: Mr Hidden, what did the trial judge say in his direction to the jury about the need for any mental
element in th offence?
MR HIDDEN: I do not believe he said anything, Your Honour. I will just take Your Honours back to that part of
the summing up which deals with the directions
generally. It commences, I think, at page 27.
Really, on driving in a manner dangerous,
His Honour's summing up commences on page 28. I think the most that he has said, Your Honour, is at
the top of page 29.
MASON CJ: At the top of 29 the trial judge virtually negatives any element of state of mind.
DEANE J: What do you say is the mental element in the
offence?
MR HIDDEN: In the offence generally, Your Honour, there is not mens rea in the sense that there has to be an
intention to drive dangerously.
DEANE J: I did not say mens rea, I said mental element. I
mean, do you need to know that you are driving?
MR HIDDEN: Yes.
Jiminez 28 5/2/92
DEANE J: And do you need to know that you are driving in the objective manner which is said to constitute
dangerous driving?
MR HIDDEN: Yes, Your Honour, in the sense that you need to be aware of what you are doing at the wheel, yes. ¥ou do not need to intend to drive dangerously or
to be personally aware that what you are doing is
dangerous. Provided what you consciously choose to
do is in fact dangerous, or negligence as the case
may be if we are talking about criminal liability
generally, that appears to be sufficient on the
authority.
DEANE J: But do you not need to be a little more precise
and identify the relationship between the mental
element and the objective acts which constitute
driving dangerously regardless of whether you know
what you are doing is dangerous?
MR HIDDEN: Does Your Honour mean generally or for the purpose of this particular application?
DEANE J: Well, it seems to me that that must be the
starting point in a case such as this to identify
what, if there be one, is the mental element of the
offence.
MR HIDDEN: Yes. As we understand the authorities, Your Honour, the only mental element of the offence
is the intention to cause a motor vehicle to do
something. If what you cause the motor vehicle to do is in fact dangerous to the public it does not
matter that you did not know that, that you did not
personally believe that.
DEANE J: Such as the intention when driving to cause the
motor vehicle to continue even though you are in
danger of falling asleep?
MR HIDDEN: That is the Kroon analysis, Your Honour, yes, in effect.
DAWSON J: But surely it is simpler than that, that the
driving which is categorized as dangerous must be a
conscious and voluntary act. It is as simple asthat, is it not?
MR HIDDEN: Yes. That is what it boils down to, Your Honour, as we apprehend the law.
DEANE J: But that brings you back to the question here,
"What is the driving?". I mean that leads to saying, driving off the road and hitting a tree was
a conscious and voluntary act. It is, obviously,not the correct question.
Jiminez 29 5/2/92 MR HIDDEN: Yes, obviously not, Your Honour, precisely.
DAWSON J: But then if you look to say, "Well, what was
conscious and voluntary?". Well, if it is driving
up to the stage of falling asleep, was that
dangerous? The answer is, "No" .
MR HIDDEN: The answer is no, quite so, Your Honour, with respect.
DEANE J: That brings us back to what I was asking you, do
you take any point in relation to the failure of
the summing up to contain any reference at all to
that element of the offence?
MR HIDDEN: No such direction is normally given in trials of this nature, Your Honour, and of course no such
direction is normally required. It is usually
fairly easy to identify what the voluntary act was
which caused the vehicle to behave dangerously, and
it is usually not necessary for a judge.
BRENNAN J: Why is not the voluntary act the driving while
.,
asleep?
MR HIDDEN: Because, in our submission, Your Honour, while
you are asleep you are not driving. The vehicle is moving but you are not controlling it.
BRENNAN J: No. That is not my proposition to you. My proposition to you is why is the voluntary act not
driving while asleep. If you are drunk, let ussay, and you knew there was a risk that because of
your intoxication you would go to sleep at the
wheel and you go to sleep at the wheel, why is not the conduct of the car while you are asleep at the
wheel conduct which you in every relevant sensevoluntarily entered into?
MR HIDDEN: Because at the time it is happening, Your Honour, your will is not controlling the
movement of the vehicle. That is why.
BRENNAN J: A circumstance which you knew the risk of and
voluntarily undertook.
DAWSON J: That is .....
MR HIDDEN: Yes. DAWSON J: Is that not an argument that went out of the window with O'Connor's case, that voluntarily
becoming drunk does not supply the mental element?
MR HIDDEN: Certainly, Your Honour, yes. I think
Your Honour Mr Justice Brennan was saying though,
you drive being aware that because of your
Jiminez 30 5/2/92 intoxication - being aware that you may fall asleep
because of what you have had to drink. Yes. Well now, Your Honour, on the Kroon analysis if it be
the law, then, depending on the circumstances that
that driving before anything happens at all maya~tract criminal liability, but on the preferable
analysis, what you have here is a situation that aslong as you are awake, even though you are drunk,
the most you are doing is driving under the
influence of alcohol, but nothing in your course of
driving happens to be dangerous. Once you are asleep you are not driving.
BRENNAN J: The law must be a very peculiar thing.
MASON CJ: Mr Hidden, we will adjourn now and resume at 2.15 pm.
AT 12.52 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.20 PM:
MASON CJ: Yes, Mr Hidden.
MR HIDDEN: Your Honours, on one view, driving a motor vehicle when the driver has had warning of the
possible onset of sleep is not of itself driving in
a manner dangerous provided that whilst the driver
is conscious the driving is unexceptionable and
prudent, although presumably even on that view it
may amount to driving negligently because driving,
having had the warning of impending sleep, would
presumably amount to driving without due care for
the safety of others and may give rise to a charge
of negligent driving, and if there were an accident
may properly found a civil action for damage. The other view which found favour with the
Court of Criminal Appeal in South Australia is that
driving a motor vehicle when the driver has beenwarned of the possibility of sleep could, in
appropriate circumstances, amount to driving in a
manner dangerous, the rationale being, presumably,
that driving in those circumstances of itself
carries a real and not merely speculative potential
of danger to members of the public.
The view which was expressed in Kroon was, to
some extent, derived from existing authority.
Your Honours, in the Court of Criminal Appeal inNew South Wales in Dennis v Watt, (1943) 43 SR(NSW)
Jiminez 31 5/2/92 32, was dealing there with the dismissal of an
information by a magistrate of a charge of
negligent driving, the defendant having claimed
that he had momentarily fallen asleep without
warning. At page 34 the then Chief Justice,
Sir Frederick Jordan, said this:
In the present case, in view of the
magistrate's finding that immediately prior to
the collision the defendant momentarily fell
asleep and had no prior warning of his
inability to keep awake it was in my opinion
open to him on the general facts found by him
to conclude that he was not satisfied that, as
an ultimate fact, the accused had been guilty
of negligence; and I think that it is
impossible to say that his determination was
erroneous in point of law because he, on that
account, dismissed the information. There isin my opinion nothing in the case of R v
Coventry to which we were referred by
| ,,, | Mr Badham, which is inconsistent with this, |
| especially having regard to the observations | |
| of the Court at p 638. |
Your Honours will recall, of course, Coventry was
an early decision of this Court on a South
Australian provision similar to the culpable
driving provision in New South Wales, and at that
particular reference referred to, the court
acknowledged that while momentary lapses of
attention or casual or transitory breaches of the
proper conduct of a vehicle may, in appropriate
circumstances, amount to driving in a manner
dangerous, the law was open to accept, if you like,
a defence of involuntariness.
TOOHEY J: That might help you on your misdirection or inadequate direction argument. It does not really
bear upon the unsafe or unsatisfactory verdict,
does it?
MR HIDDEN& No, that is so. The Chief Justice then went on to consider the case of Virgo v Elding, a South
Australian case, and to disapprove of it.
His Honour said:
If the case of Virgo v Elding ought to be
regarded as deciding that a person who is
overcome by sleep at the wheel is necessarily
guilty of driving negligently in all cases
whatsoever, and that the circumstances in
which he falls asleep are entirely immaterial,
I am, with all respect unable to agree with
it.
Jiminez 32 5/2/92 Now, Your Honours, the Court of Criminal Appeal in England dealt with a somewhat analogous situation;
that is that of mechanical failure in Reg v Spurge,
(1961) 2 QB 205. That was a dangerous driving
charge and in that case the defendant had claimed
that the accident was the result of a mechanical
defect of the motor vehicle of which he had notbeen aware. There was, in fact, evidence that he was aware of it, which is substantially the point on which the case turned. At page 210,
Mr Justice Salmon, as he then was, said towards the
middle of the page, this:
If, on a prosecution under section 11(1), the
Crown proves that a motor-vehicle driven by an
accused in fact endangers the public, that is
strong evidence and, indeed, in any but the
most exceptional circumstances, is likely to
be regarded by the jury as conclusive evidence
that the accused was driving in a manner
dangerous to the public.
His Honour went on to consider Hill v Baxter and
said, right at the bottom of the page:
There does not seem to this court to be any real distinction between a man being suddenly
deprived of all control of a motor-car by some
sudden affliction of his person and being so
deprived by some defect suddenly manifesting
itself in the motor-car.
At about point 5, His Honour said:
In these circumstances clearly the motor-car
endangers the safety of the member of the
public driving the oncoming vehicle.
Nevertheless, it could not truly be said that
this danger was created by the manner of the
driving of the motor-car which had gone out of
control.
But, at page 212, His Honour said, at about point 2: This defence has no application where the
defect is known to the driver or should have
been discovered by him had he exercised
reasonable prudence.
His Honour then went on to say that the issue
having been raised of mechanical failure, the
burden then lies upon the prosecution to negative
the defence in the sense of proving either that
there was no mechanical failure or providing that
the accused knew or ought to have known of it.
Jiminex 33 5/2/92 I suppose, Your Honours, inherent in that
decision is the proposition that driving a motor
vehicle which was mechanically dangerous, in
circumstances where the accused knew or ought tohave known of its dangerous condition, can itself
amount to driving in a manner dangerous, even
though the course of driving up to the time of the
mechanical failure is, on its face, unexceptional.
BRENNAN J: Do you accept that proposition or not? MR HIDDEN: Your Honour, if we were not required to decide between these two propositions, we would be happy
not to have to. One can see that the proposition
that the driving cannot be i~ a manner dangerous to
the public unless it is inherently so is consonant
with the words of the section. On the other hand,
one can see, at the very least, sound reasons ofpublic policy why this interpretation of the law
might be preferred.
| ., | DAWSON J: But there is a distinction. If you drive a |
dangerous implement you might be said to be driving
in a manner dangerous because the nature of the
implement makes the driving dangerous, that is the
condition of the thing that you are driving.
MR HIDDEN: Yes, I suppose there is a relevant distinction,
indeed, Your Honour, yes.
DAWSON J: If the condition of the driver is such that he is not driving at all it is a different situation.
MR HIDDEN: Yes, indeed, Your Honours, we appreciate there
is that relevant distinction here.
TOOHEY J: Why do you not put it in these terms - I am not suggesting you ought, but why do you not say that
conduct which is objectively dangerous to the
public falls within the terms of the section, but
that something such as mechanical failure or a heart attack or falling asleep without previous
warning deprives the actions of the defendant of
their voluntariness and, therefore, it is an answer
to the charge?
MR HIDDEN: Yes.
TOOHEY J: Do you mean, yes, you agree with that? MR HIDDEN: Yes, Your Honour. That, indeed, is the view
that seems to be supported by a considerable line
of authority in England and in this country.
TOOHEY J: It is certainly not the way it is put in Spurge, at least not as I understand the paragraphs you
have read.
Jiminez 34 5/2/92
MR HIDDEN: Not precisely in those words, Your Honour, but Spurge does not seem to amount to that proposition.
TOOHEY J: Spurge seems to be saying that - perhaps it is in a way - you are not driving dangerously if you have
not got, without fault on your part, control over
the vehicle?
MR HIDDEN: Yes, precisely, Your Honours. MR HIDDEN: Yes, precisely, Your Honours. TOOHEY J: But it might be more difficult to fit that sort
of thinking into the language of the section with
which we are concerned than the other way that I
was suggesting to you.
MR HIDDEN: Yes, that is indeed the difficulty, Your Honours, which we must confess we had come
inadequately prepared to consider.
The concept of fault on the part of the driver
purveys the authorities in this area in Reg v
Gosney, (1971) 55 Cr App R 502, again a decision of
the English Court of Appeal, Criminal Division.
Lord Justice Megaw giving the judgment of the court
said this at page 508, and again this is dealing
with the charge of driving in a manner dangerous:
We would state briefly what in our
judgment the law was and is on this question
of fault in the offence of driving in a
dangerous manner. It is not an absolute
offence. In order to justify a conviction
there must be, not only a situation which,
viewed objectively, was dangerous, but there
must also have been some fault on the part ofthe driver, causing that situation. "Fault"
certainly does not necessarily involve
deliberate misconduct or recklessness or
intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame. Thus there is fault if an inexperienced or a
naturally poor driver, while straining every
nerve to do the right thing, falls below the
standard of a competent and careful driver.
Fault involves a failure, a falling below the care or skill of a competent and experienced
driver, in relation to the manner of the
driving and to the relevant circumstances ofthe case.
I suppose in a lot of cases, Your Honours, that
statement of principle is capable of-encompassing the concept of involuntariness. But certainly if
Kroon be the law, then the relevance of that
Jiminez 35 5/2/92 statement of principle is that you cannot be found
guilty of driving in a manner dangerous as a result
of falling asleep at the wheel unless there was
warning that you might do so. Therein lies the
fault: failure to heed a warning.
BRENNAN J: I am sorry, Mr Hidden, I am still not quite following you. What do you say is the situation in
relation to a case of falling asleep with tragic
consequences, if there is a warning of impending
sleep?
MR HIDDEN:
Your Honour, we say as to that there are two views which might rationally be taken.
One is that
failure to heed that warning amounts to driving
without due care for the safety of others and would
certainly be negligent driving, but could not
amount to driving in a manner dangerous to the
public unless while the driver was conscious the
vehicle was behaving in a dangerous manner .
| .,, | The other view is, and the view espoused by a |
line of authority up to and including Kroon, that
failure to heed that warning, in circumstances
where there is a real and not merely speculative
potential of danger to others, makes continuing to
drive of itself dangerous to the public. Now Your-Honours, we honestly find it difficult to
submit to this Court which is the preferable view.
DAWSON J: Well, to adopt, for instance, what was said in
Gosney, for my part I do not understand it, adding
fault as an additional ingredient to an offence
which is adequately defined by the statute. If you consciously and voluntarily drive a motor car in a
manner dangerous to the public, that is the fault.
MR HIDDEN: Yes. McHUGH J: This actual decision strikes me really as absurd.
on a dual highway and it is said it is not driving Somebody is driving a car on the wrong carriageway in a manner dangerous, or a jury could find you are not driving in a manner dangerous, because the woman got the wrong - - -
MR HIDDEN: As I understand it though, Your Honour, in circumstances where, in the view of the court, she
entered the carriageway at a point where the
signage was not adequate to indicate to her that
she was on the wrong side.
McHUGH J: I know, but if you were in a one-way street and suddenly somebody is driving up that street in your
direction likely to cause harm, surely you are
driving in a manner dangerous to the public.
Jiminez 36 5/2/92
MR HIDDEN: Yes, but, Your Honour, if the driver entered that street and somebody had knocked down the
one-way sign and the driver assumed that to drive
in that direction on the left-hand side of the
carriageway, as is normal custom, is correct, the
fact that it was in fact a one-way street and the
danger was created thereby, would not render, in
our submission, the driver criminally liable for
anything, because there is no fault. There is not even failure to notice a one-way sign. There does
not happen to be a one-way sign.
BRENNAN J: That is because there is a mistake of fact.
MR HIDDEN: I suppose that is another way of putting it, Your Honour, but the convenience of using the word
"fault" in this sense, at the very least, is that
it makes it clear where the burden of proof lies.
DAWSON J: It does more than that.
MR HIDDEN: We certainly do not read Gosney as suggesting that there is any intent or recklessness involved.
It appears what Their Honours meant in Gosney was
that there must be fault in the sense of a
conscious decision to do something with a motor
vehicle which any reasonable person knows is, as
the case may be, negligent or dangerous to the
public. We cannot suggest there is any greater mental element than that.
In the example I have just postulated,
Your Honour, if someone had taken away the one-way
sign, no reasonable person would say that the
conscious decision to do what that driver did was
negligent or dangerous to the public.
McHUGH J: Well it still constitutes driving in a manner
dangerous to the public. You may not be criminally
responsible for it because of an honest and
reasonable mistake.
MR HIDDEN: I am sorry, Your Honour, yes. I have at all time been using the expression in the sense of
being criminally responsible for driving in a
manner dangerous to the public. Yes, I take
Your Honour's point. We are speaking here of criminal responsibility, not a description of the
behaviour of the vehicle, as such, but rather
criminal responsibility for what it does. Yes, Iunderstand that. We understand in Gosney that is
all they are talking about there.
McHUGH J: Well, that is not the way they put it.
MR HIDDEN: I appreciate that, Your Honour, yes. Now, Your Honour, it is against the background of those
Jiminez 37 5/2/92 authorities that the Court of Criminal Appeal in
South Australia came to decide Kroon, and no doubt
Your Honours are familiar with it and probably
sufficient of that authority has already been
referred to in argument this morning, the vital
passage being, Your Honours, the one which we read
this morning - I am sorry Your Honours, Kroon is in
52 Aust Crim R 15, the vital passage being that of
the Chief Justice Mr Justice King from pages 18
to 19.
We observe, Your Honours, that His Honour goes on at page 19, having discussed the principle
involved, to say:
The more difficult issue in this class of case is whether~-~ driving prior to sleep
amounts to the indictable crime. The critical
issue is the degree of the accused person's
departure from the standard expected of an
ordinary prudent drive.
,,
Your Honours will bear in mind, of course, that what His Honour was there referring to was the
possible alternative verdict of driving without due
care, which I gather in South Australia isregularly pleaded as an alternative to one of
culpable driving. That cannot be done in New South
Wales. Negligent driving is purely a summary
offence, and His Honour there appears to draw a
distinction between driving without due care and
driving in a manner dangerous, according to the
degree of the accused person's departure from the
standard expected of an ordinary prudent driver.
That seems, Your Honours, to be consistent
with Mr Justice O'Brien's analysis of the criminal
offences relating to driving in Buttsworth. That
is the real distinction between them1 that is,
negligent driving, culpable driving, manslaughter
being the extent to which the driver falls below the standard of due care of a prudent driver; the
degree of carelessness involved.
BRENNAN J:
If I could just interrupt you while you are dealing with Kroon·.
If one were to take the view
that the actus reus of the offence of culpable
driving, or driving without due care, in a sleepcase, is driving the vehicle whilst asleep off the road, or driving the vehicle whilst asleep, let us put it that way, the question then becomes, is the driving of the vehicle whilst asleep a voluntary or
an involuntary act. Is it an involuntary act if a
driver, with knowledge that he may fall asleep,
continues to drive and does fall asleep, so that
from that point onwards the actus reus occurs?
Jiminez 38 5/2/92 MR HIDDEN: No, Your Honour. In our submission, the only way one can analyse that situation consistent with
logic and authority is to say that the actus reus
is the driving before the driver falls asleep,
having been warned of the danger of the onset of
sleep.
BRENNAN J: I understand the way you put it, but I do not understand what authority it is that says so.
MR HIDDEN: Kroon, Your Honour, and the cases which preceded it. That appears to be what Kroon is saying.
DAWSON J: In any event, would that not amount to saying
that if you consciously and voluntarily become
unconscious and involuntary you are not unconscious
and involuntary? In other words, you supply the
mental element by reference to the mental element
at a preceding time.
MR HIDDEN: Yes. The logical difficulty we have with that, Your Honour, is the idea of consciously becoming
| ,, | unconscious. |
DAWSON J: That is the way His Honour was putting it to you,
was it not, that you supply the mental element at
the relevant time by reference to the mental
element which was the voluntary driving of the
motor car before - in a state of drowsiness, let us
say - that supplies the mental element at the
relevant time if that relevant time is the driving
of the motor car asleep. There is a
certain •.... incurred in driving a motor car asleep,
but still - - -
MR HIDDEN: Your Honour, I understand the proposition, but we would submit that it is more consonant with
authority than with logic to say that it is the
driving before - - -
DAWSON J: I understand that but if that is not so and the
period, which is the relevant period, is the period when he is actually driving the car asleep, if one
can do that, when he is in one sense unconscious
and involuntary, can you supply the necessary
consciousness and voluntariness by reference to a
preceding period, that is, when he was consciously
and voluntarily driving in a drowsy condition.
MR HIDDEN: We would submit not, Your Honour. Once he is unconscious - - -
DAWSON J: I thought you would, yes.
BRENNAN J: I thought you would too. The problem is that you have got to understand what is meant by the
mental element and if you understand the mental
Jiminex 39 5/2/92 element to be nothing more than voluntariness in
what exclusively amounts to the actus reus, but
then, of course, the problem has to be analysed in
those terms.
MR HIDDEN: Yes, which is why we would submit it is preferable to see the actus reus as the driving
prior to the onset of sleep, together with a
failure to heed a warning. We appreciate, Your Honours, that to a certain extent that merges
actus reus and mental element.
Your Honours, against that background, when
one turns to the judgments of the majority in the
Court of Criminal Appeal - of course, if the first
view be correct, and that is that unless the
driving is objectively dangerous prior to the onset of sleep there is no driving in a manner dangerous,
then everyone has missed the point, including the
whole of the Court of Criminal Appeal and, indeed,
counsel until today and no judgment of the Court of
| ., | Criminal Appeal correctly states the principle, if |
| that be the preferable view. |
If the view enunciated in Kroon be the law
then, in our submission, the Court of Criminal
Appeal is substantially at odds even with that
decision.
McHUGH J: Why do you say that in respect of the president? He seemed to take the view in the case that I suggested to you was the way it was left at 35
and 36. If you look at the bottom of 62 and 63 of the book, he took the view:
It is inherent in the jury's verdict that the
jury concluded that the appellant knew, or
ought to have known, that he was sleepy before
he fell asleep - - -
MR HIDDEN: Yes, I appreciate that, Your Honour. Indeed, earlier, the learned president had expressed the
issue to be determined in a manner which is, on the
face of it, consonant with Kroon. At line 5:
If, having regard to all of the circumstances
a jury concludes that the accused driver,
whose vehicle has been involved in an impact causing the serious consequences provided by
the section, knew or ought to have known that
he was liable to lose control of the vehicle
(however briefly) that will be enough to
sustain a conviction under the section.
Again, Your Honours, thus far, that appears to be
entirely consonant with Kroon except for the
passage of Kroon to which we referred Your Honours
Jiminex 40 5/2/92 earlier at page 19 where the Chief Justice said,
"Even if there is that knowledge, actual or
imputed, of the likely onset of sleep, the question
still arises whether driving the vehicle in those
circumstances amounts to driving in a manner
dangerous, as opposed to driving without due careand attention."
Your Honours, to that extent, we maintain the
submission we made based on Buttsworth that the
fact that a driver drove knowing that he might fall
asleep does not necessarily amount to driving in a
manner dangerous. That depends on the surrounding
circumstances: things such as what type of road he
is on. So that to that extent, the statement of the learned president at page 62, the statement of
principle, we would submit, is too broad.
With the judgment of the president,
Your Honours, the problem which we apprehend arises more from His Honour's earlier statements which do
not seem entirely consistent with that final
statement of principle and seem to omit altogether
the necessity of proving knowledge, actual or
imputed, of the possible onset of sleep. At
page 55, at the bottom of the page, His Honour
said:
Amongst the purposes of the section is the
discouragement of the driving of fast moving
motor vehicles, with potentially lethal
capacity, in circumstances where it is
reasonable to infer that the driver will not,at all times, be able to exert control over
the motor vehicle and so to ensure the safety
of members of the public (including
passengers) coming within its vicinity.
A little later, at line 10, His Honour said:
It is important that courts should not be indulgent about this offence.
And he speaks of the natural sympathy that people have for defendants in the predicament of being
charged with culpable driving. At line 22,
His Honour said:
The great velocity and power of the modern
motor vehicle, even when being driven within
the maximum speed limit fixed by law, are such
as to require full capacity on the part of the
driver at all times. Anything less presents arisk of danger to the public.
Those propositions, standing alone,
Your Honours, are certainly capable of suggesting
Jiminez 41 5/2/92 that there is an absolute duty to remain alert at
the wheel and if you fall asleep, for whatever
reason and however unexpectedly, that is an end to
the matter. However, true it is, Your Honours, at
page 62, the statement of principle appears to be_consonant with Kroon.
The greater difficulty, Your Honours, is the
judgment of Mr Justice Lee, the Chief Judge at
Common Law, and the difficulty which this decision
presents to practitioners in New South Wales is
that if it stands as authority in that State
practitioners will have to decide which judgment is
the authoritative one, because Mr Justice Lee's
approach is quite different and, in our submission,
completely at odds with Kroon and the line of
authority which preceded it.
The effect of Mr Justice Lee's judgment does seem to be that falling asleep at the wheel without
more may be enough to amount to driving in a manner
dangerous, and that the question of a warning and
| ,,, | whether or not it was heeded simply has nothing to |
| do with it. |
Speaking of the case at hand, His Honour said,
at page 80:
The circumstances proved in the present case from the appellant's own statements were,
as I have said, such as to justify the jury
concluding beyond reasonable doubt that he had
dropped off to sleep and that it was that
factor which caused the vehicle to leave the
road. It was also open to the jury to
conclude that although he woke up or became
aware of his surroundings, prior to the
vehicle leaving the road, the time difference
between his going to sleep and the impact
which caused the death of the victim was so
short as to justify a conclusion that the
vehicle was being driven in a manner dangerous, due to his being asleep, during that entire but short period.
Turning then to the relationship between falling
asleep and driving in a manner dangerous,
His Honour says:
To the question whether falling asleep at
the wheel of a motor vehicle being driven upon
a public highway - and I do not limit the
question to the night or the day time -
amounts to driving in a manner dangerous
within the propositions 2, 3, 4 and 5 there
can be but one answer, in most circumstances,
and that is that it does.
Jiminez 42 5/2/92 propositions from Reg v Hain, which His Honour set
The reference to propositions 2, 3, 4 and 5,
out and which appear in the application book at
pages 78 and 79. His Honour went on:
The test of "driving in a manner dangerous",
being an objective one, focuses attention upon
the manner in which the driver has exercised control and management of his vehicle, and a
driver who allows himself to "drop off" for amoment deprives the vehicle of the very
control which must be exercised if danger to
the public is not potentially at leastcreated. A vehicle moving on a public
highway, day or night, with a driver at the
wheel who is asleep even for a second or two,
will in most circumstances pose a threat ofdanger to any member of the public who may be
in that vicinity or in the vehicle.
His Honour said that it had been argued by counsel
that the act of falling asleep can be an
involuntary act, and His Honour went on to consider
the decision of this Court in Coventry, and
His Honour continued at the bottom of page 82:
When a person, who has fallen asleep,
does an act or appears to engage in conduct of
a particular nature which is called into
question in a criminal court, the answer can
readily be given that such act or conduct is
not voluntary. But falling asleep or losing
concentration in circumstances whereconcentration can be shown to be reasonably
expected is a different matter.
Now, I pause there to point out, Your Honours, that
there is a very real logical distinction here
between falling asleep on the one hand, and losing
concentration on the other. His Honour went on:
Falling asleep is, in ordinary circumstances, something to which the will readily "gives
in", and it can fairly be said that when onefalls asleep, even momentarily, one allows
oneself to fall asleep. Falling asleep or
losing concentration are not to be understood
as acts but, in the context in which we are
concerned here, as consequences of a failure
to exercise control of the will in order to
stay awake or remain alert.
His Honour goes on to refer, in passing, to the
discussion by Sir Garfield Barwick of voluntariness
in Ryan v Reg and says that we are not
Jiminez 43 5/2/92 here concerned with that type of involuntariness
and proceeds:
nor, in my view, is falling asleep or loss·of
concentration to be understood to be within
the expression "involuntariness" used by their
Honours in the King v Coventry.
At page 84, after a reference to a part of
Coventry, His Honour continued:
In my opinion to fall asleep at the wheel
is plainly within the matters which their
Honours considered could constitute driving in
manner dangerous. The driver who sits behind the wheel of a car and drives it has an
obligation, in my opinion, positively to keep
his attention directed on the driving, and
when he fails in that obligation and allows
his mind to wander so as to take his attention
off the driving, or he falls asleep
momentarily, he can be held ..•.. to be driving
| ., | "in a manner dangerous. |
DAWSON J: Which period of driving is His Honour referring
to there, before or after the driver falls asleep?
MR HIDDEN: That, Your Honours, is not entirely clear. we take His Honour to be referring to the period after
falling asleep as the relevant period althoughHis Honour, in the passage earlier quoted, did agree that once one has fallen asleep it can be
said that the conduct of the vehicle is
involuntary. His Honour seems to be saying that
the driving in a manner dangerous is the falling
asleep while at the wheel of the car. Now, whether that, logically, can be described as a course of
driving is another matter but, in any event, the
difficulty we apprehend is with the notion that
falling asleep is, in some sense itself, an act of
the will. Your Honours, every night we go to bed
intending to go to sleep but the onset of sleep is involuntary, in any sense of the word.
DEANE J: What His Honour is saying is not taking sufficient
care to make sure you do not fall asleep when you
are driving, and he is talking of the moment you
fall asleep. It is not all that unreasonable, is
it? If one of us were to fall asleep in the middle of your fascinating submissions, it would be fairly
apparent that we had not taken sufficient care to
listen or to stay awake.
McHUGH J: We might not be guilty of fault, though. MR HIDDEN: No, Your Honour, with respect.
Jiminez 44 5/2/92 DEANE J: What, that we would not be guilty of fault?
MR HIDDEN: This is the whole point, Your Honour. Human reality is that people can fall asleep despite
their best efforts to remain awake. That is the
whole point.
DEANE J: All I can say is I have been tempted many times in
the years on the bench, and I have always resisted
it, and I would regard myself as negligent if I
started snoring.
MR HIDDEN: I am delighted that Your Honour has had such consistent success, but the onset of sleep can be
momentary and unexpected, despite being guarded
against. That is human reality, Your Honours, and
that is the whole point of this case. That is the
whole point of Kroon and the decisions which
precede it. We recognize that that is a human reality, and we do not penalize you in the criminal
law for doing that. Failing to pay attention to
keep yourself awake means that you have had a
| ,, | warning of impending sleep and you have not heeded |
| it. |
McHUGH J: But Mr Justice Lee seemed to think that a claim
that you had no warning might still allow you to be
acquitted. He seems to make that point at page 88, line 7, where he said:
A driver's own admission that he has fallen
asleep will, in most circumstances that can be imagined, carry the Crown case to the jury and
it will be for the jury to consider the claim
"of no warning" against the whole of the
evidence.
MR HIDDEN: Yes. Your Honour, I am mindful of that passage but, with respect, find it difficult to marry up with what had passed from His Honour before. At
page 85, His Honour referred to Dennis v Watt, to
which we have already referred this Court, but distinguishes it on the basis of its being a case
of negligent driving, not driving in a manner
dangerous. At page 86, His Honour said at line 16:
In other words, a fortiori, proof of
fainting excludes negligence and it is the
same when, and if, it can ever be proved -
and we pause there, Your Honours, to suggest that
that may be reversing the onus of proof -
when, and if, it can ever be proved - as the
magistrate found it had been on this
occasion - that sleep came on without warning.
That case, in my view, has no application in
Jiminez 45 5/2/92 the present circumstances which are not
concerned with negligence but with whether,
having fallen asleep -
here is the answer to Your Honour Justice Dawson's
question -
the vehicle was then being driven ttin a manner
dangerous to the publictt withins 52A of the
Crimes Act. It may well be that one can say
that there would be many, many instances in
which drivers have dropped off to sleep at the
wheel and not have been aware that they were
doing so and quite unaware that they were evendrowsy. But that does not mean they could not
be found guilty of an offence under s 52A for
the section fastens objectively upon the
manner in which the vehicle is driven, as I
have earlier pointed out - - -
DAWSON J: Then you get into the difficulties where you
really are saying the driver has to be at fault. I
| ,,, | mean, if it is dangerous for a drowsy man to drive a car, then it is dangerous whether or not he knows |
| he is drowsy. This is not an offence which | |
| requires mens rea other than a mental element that | |
| it be conscious and voluntary, and perhaps that is | |
| a defence of mistake of fact. You are muddling up a number of concepts if you go about it that way. | |
| How can it matter whether he knows whether he is | |
| drowsy or not if, in fact, he is drowsy, and if it | |
| is said that drowsy driving a car constitutes driving in a manner dangerous? |
MR HIDDEN: Well, Your Honour, the answer , in our submission - and all this assumes that the Kroon
view be the correct view - - -
DAWSON J: And if he falls asleep he must have been drowsy,
and therefore if this reasoning is right, in every
case in which a person drops off to sleep behind the wheel he must be guilty of dangerous driving. certainly, and - - -
MR HIDDEN, Yes, that is the danger with it, Your Honour,
DAWSON J: But that is not, if I may say with respect, what
His Honour thinks you are saying. He thinks you are saying the opposite.
MR HIDDEN: Precisely, Your Honour. But as I say, the Kroon
view as we understand it is that whilst you might
describe as a matter of English a driver falling
asleep at the wheel and the course of the vehiclethereafter, one does not attach criminal liability
to that unless that driver knew, or ought to have
Jiminez 5/2/92 known, that just that might happen. Criminal
liability is then attached - - -
DAWSON J: But that is not part of the offence. It is
attributing to the offence the requirement of an
element of fault which is not there.
MR HIDDEN: It is perhaps in the light of that sort of
reasoning that the concept of fault is introduced
by the English Court of Appeal in Gosney todistinguish situations where serious accidents have
happened by sheer misadventure. In short,
Your Honours, our submission is that on either viewof the correct law, Mr Justice Lee's judgment cannot stand, and this Court should say so. Your Honours, on the major point being the law
relating to the manner of driving and the manner in which the matter was put to the jury, those are our
submissions. Your Honours, the other matter relied upon in this application - - -
BRENNAN J: Do you need to say anything about the application or absence of application for
redirection?
MR HIDDEN: Well, Your Honour, as we said, firstly, while it
is not clear, it does seem that at the very least
counsel did seek some kind of direction relating to
involuntariness. That appears at page 38 of the
application book, Your Honours, and I think we took
Your Honours to that this morning. None the less, if the Court is of the view that the matters raised in this application were not adequately raised with
the trial judge, we would submit that that would
not, in the circumstances, prevent this Court from
intervening. The issues raised in the context of
this trial were vital to the way in which the trial
was conducted and to the way in which the
applicable law ought to have been explained to the
jury and in these circumstances it could not be
said that this application ought fail because the points were not taken.
MASON CJ: Why do you say, having regard to the way in which this trial was conducted? It seems to me that is
one of the difficulties that we face in spelling
out precisely how it was conducted and what was the
defence that was urged upon the jury.
MR HIDDEN: Yes. I appreciate that, Your Honour. The trial does seem to have been conducted, at least on the
defence side, upon the proposition that there wasno warning of impending sleep. It does not seem
all that clear whether the Crown conducted it on
that basis, but rather on the basis that going to
sleep, for whatever reason, was enough. And the
Jiminez 5/2/92 way the arguments are summarized, it does not seem
entirely clear what the Crown contention was, but
certainly, in our submission, the summing up ought
have been told squarely, "The issue which you, involved and if Kroon be the law, the jury should to have drawn the jury's mind to the issue of law ladies and gentlemen, have to decide is whether you are satisfied beyond any reasonable doubt that this accused had warning of impending sleep. Unless you
are, he must be acquitted". That was neversquarely put as a proposition of law related to the facts of the case. Now, Your Honours, if the point was not taken,
or was not taken adequately, we would submit then
in the Court of Criminal Appeal that would not
justify the court applying - - -
McHUGH J: But, Mr Hidden, both the President and
Mr Justice Lee thought the jury were directed that
they were to acquit the accused if the appellant
| ,, | had no warning. | That appears in Mr Justice Lee's |
judgment at page 78, about line 6, and
Mr Justice Kirby at page 62, 63 - that was the way
they understood the summing up.
MR HIDDEN: Your Honours have the summing up before you. Mc HUGH J: Yes. MR HIDDEN: A factual dispute was certainly put but it was not put into the relevant legal framework, in our
submission, Your Honours. The directions of law
were just far too general and the jury were not
adequately guided as to what the true test of
criminal liability was and what it was preciselywhich had to be proved.
Your Honours, the only other matter raised by
this application is the entirely separate point
relating to the misstatement of evidence. Your Honours, we are content if the Court is itself
content to rely on the short summary of that
argument appearing in our written outline.Basically, what happened, as Your Honours may know, is that it seems that counsel for the Crown,
while addressing the jury, inserted the word
"again" into one of the answers of the applicant to
questioning by police, in fact by Sergeant Cornes.
The problem is set out, Your Honours, at
page 52 of the application book in the middle of
the page in the indented italicized passage. In
the summing up, when summarizing the Crown's
submissions, the learned judge apparently said to
Jiminex 48 5/2/92 the - well, it appears from page 35 of the
application book - jury:
asked by Sergeant Cornes how the collision
occurred. The Crown reminded you that his
answer was, "I really don't know. Before the
accident there was a lot,of fogs in the road.
I lost control of the car. Everyone was
asleep, the three girls and then it happened.
I was just for a second, I lost control when I
fell asleep again. I'm not sure what
happened."
The word "again" was not, in fact, used and that was not the evidence. His Honour then went on to
say:
That answer to the Sergeant the Crown ask you
to reflect upon and to evaluate and to
attribute to it such importance as you see
fit.
| ., | It seems, when one continues in the judgment of |
| Mr Justice Kirby, Your Honours, that what had | |
| happened was that in summarizing the evidence to | |
| the jury the judge used his own notes and | |
| summarized it accurately. But when summarizing the | |
| submissions of counsel and used his notes of those | |
| submissions, in a sense, the inaccuracy crept in in | |
| the submission of counsel for the Crown and was | |
| repeated by His Honour when summarizing submissions. |
The majority of the court were of the view
that while it was a misstatement it was not of such
significance as to be likely to have affected the
jury's verdict and the jury were, in all the
circumstances, likely to have known that it was a
misstatement. Mr Justice Smart was of the contrary view and it is our respectful submission that, in
all the circumstances, it is his view which ought
be preferred.
The question which arises for this Court is
that all the judges of the court realized that in
deciding the question the guiding authority on the
matter was the decision of this Court in Simic v
Reg, (1979-80) 144 CLR 319. The Court there
considered, at some length, the authorities relating to the effect of a misstatement of
evidence to a jury and the conclusion of the Court
appears at page 332.
This was an appeal from Victoria and the
reference at the top of the page to section 568 was
a reference to the Criminal Appeal Division, a
provision of common form in all States, similar to
Jiminex 49 5/2/92 section 6 of the New South Wales Criminal Appeal
Act. Their Honours said:
It is right and proper therefore that an onus
rests upon an appellant to bring himself
withins 568 by showing that the misdirection
which occurred in the instant case amounted to a miscarriage of justice. Nevertheless, it is putting that onus too high to require it to be
shown that it was reasonably probable, rather
than possible, that the misdirection affected
the verdict. Of course minor inaccuracies and omissions will not be likely to make it
possible that the verdict was affected. Bare
and remote possibilities may be disregarded,
but if it is considered reasonably possible
that the misstatement may have affected the
verdict and if the jury might reasonably have
acquitted the appellant if the misstatement
had not been made, there will have been a
miscarriage of justice, and a substantial one.
| .,. | In considering a question of this kind, the |
| appellate court must have regard to the | |
| gravity of the misstatement as well as to the | |
| strength of the case against the appellant. | |
| Now, Your Honours, Mr Justice Kirby - as we |
have said - as did the other judges, referred to
Simic, but at page 53 of the application book the
learned president had this to say, at line 19:
In an appeal to this Court upon the basis of mis-statements of the evidence, it is not
sufficient to show that there has been an
inaccuracy or imprecision. What must be shown
is that the inaccuracy is significant, in the
sense that it carries a real risk that the jury's consideration of the evidence might
have been affected, resulting in a verdict
different from that which could have followed
a correct statement of the evidence.
Now, Your Honours, the submission, in short, is
that the expression "real risk" is much closer to
the expression "reasonably probable" which thisCou~t rejected as the correct test, and places an onus on the applicant or on the appellant to show
that the misstatement was significant, which is
greater than showing reasonable possibility, an
onus higher than that enunciated by this Court.
That, in short, is the complaint and, as we have said, our submission is that on all the facts in this case, the view of Mr Justice Smart is to be preferred.
Jiminez 50 5/2/92 BRENNAN J: Are you saying that there is a special leave
point consisting in the difference between
reasonable possibility and real risk?
MR HIDDEN: Yes, Your Honour, that is it. BRENNAN J: After the judge had referred to Simic as the
guiding principle?
MR HIDDEN: Yes, I appreciate that, Your Honour, but none the less there is the way in which Mr Justice Kirby
has put it at page 53.
BRENNAN J:
Why do we need to intervene on this ground? Nobody has doubted Simic, have they?
MR HIDDEN: No, Your Honour. Your Honour, we can suggest this Court might grant special leave for the reason
only to correct a misstatement of the relevant
principle, if it be a misstatement, by the
President of the Court of Appeal in New South Wales
in his own judgment, and that the Court would grant
special leave for that purpose alone. We can put it no higher than that, Your Honour. Your Honours, those, in short, are our
submissions. If the Court is of the view that
special leave should be granted and the appeal
allowed, it would be our submission that no new
trial ought be ordered. The particular reason for
the Court taking that view, in our submission, is
as we have said and respectfully submit that
Mr Justice Smart's view that the verdict was in any
event unsafe and unsatisfactory is sound and is to
be preferred to the view of the majority. This was a tragic case, Your Honours, but it just was not a
culpable driving.
DAWSON J: What has happened to the sentence, has it
expired?
MR HIDDEN1 No, Your Honours. The appellant has in fact been on bail, so that he has at this stage still
only done four weekends of periodic detention.
Those are our submissions, if the Court pleases.
MASON CJ: Thank you, Mr Hidden. Yes, Mr Howie.
MR HOWIE: I hand up an outline. MASON CJ:
Yes, Mr Howie. We need not trouble you on the
second point, the Simic point.
MR HOWIE: Yes, Your Honours. I do not know that those principles now, after what has fallen from here
today, necessarily are sufficient. What seems to
have occurred perhaps in the English cases is that
Jiminez 51 5/2/92 the courts have been concerned about the question
of voluntariness of the person who falls asleep or
for some other reason loses control of a motorvehicle and it seemed to address that in two ways,
either firstly by looking at what happened before
the loss of control to find that there is a manner
dangerous to the public, either if it is in a motor
vehicle matter by finding out whether or not the
person ought to have known of the defect of the
motor vehicle, or if it is in the lack of control
because of some condition of the person to see
whether or not the person knew or ought to have
known of the lack of condition or ought to have known of the condition which was going to bring
about a lack of control.
So the courts have tended to focus on the time
in which the person loses control as the question
of whether or not - of that being the manner
dangerous to the public or the time in which the
manner dangerous to the public occurs and then,
| ., | looking at the fact of the impact or the driving | |
| where the car goes off the road as a consequence of | ||
| the manner dangerous and as being so near in nexus | ||
| to the manner dangerous that they have identified | ||
| that being the circumstances before the loss of | ||
| control and saying that it was the loss of control or the circumstances before the loss of control | ||
| which was the manner dangerous to the public. That | ||
| seems to evince itself in Kroon. | ||
| Even if one goes back to Hill v Baxter, the case which was talking about falling asleep or loss | ||
| difference between a person who falls asleep | ||
| without any warning or loses control without any | ||
| forewarning of something going to happen, just an | ||
| Act of God almost, a swarm of bees or being hit by | ||
| ||
| became asleep to find the manner dangerous there. |
Kroon applies, or purports to apply, Hill v
Baxter and therefore looked at that as the relevant
situation. It seems that that is what happened in
the context of this trial. The focus was, it seems
to be, addressed to the question of whether or not
he had any warning about the closing of his eyes or
that he was going to get tired and therefore close
his eyes, so that the manner dangerous which was
looked at by the jury, or to which the jury's
attention was drawn, seems to be that fact, and
that was the issue on which the matter was argued.
Jiminez 52 5/2/92 McHUGH J: Can you just help me. The accused was indicted on an impact case.
MR HOWIE: Yes. McHUGH J: The language of 52A requires that at the time of
the impact that the vehicle must be driven in a
manner dangerous to the public, not before the time
of the impact.
MR HOWIE: Yes, but in McBride's case, Chief Justice Barwick said that it could be that the manner of driving
and the impact are so close in time that the jury
can accept that the manner of driving has continuedto the point of impact, that the state of emergency
that occurs due to the manner dangerous is, as it
were, a consequence of the driving in the mannerdangerous and is seen as part of the driving in the
manner dangerous and therefore went towards the
impact. It may be different if the manner
dangerous that is being relied upon is some period
before the impact. I think the Chief Justice said
that it was a jury question to look at whether or
not the manner of dangerous - - -
McHUGH J: I am not sure that you do not rather reverse what
he was saying. He was insisting on the need for contemporaneity between impact and manner of driving, was he not?
MR HOWIE: Yes, Your Honour, but said that it could come about by the fact that the manner of driving and
the impact occurred so close in time that it could
be seen as the same thing, or the jury could find
that the manner of driving continued right up until
the point of impact, as a matter of almost causal
relationship, and that the driving in a manner
dangerous to the public occurred at the time of
impact because of what had occurred just before the
impact, and the court is not looking at whathappens when the person is out of control trying in
this state of emergency to control the vehicle to
dangerous. get it back on the road or to overcome the manner That certainly seems to be how this case was run, that the manner dangerous was the circumstance
when he closed his eyes and then lost control of
the motor vehicle, which occurred so close to the
time of the impact, because he went off the road
and then hit the tree almost immediately, that it
can be seen as part and parcel of the one course of
driving or the same manner dangerous.
The other way that the courts have seemed to
have dealt with this in England is this
introduction of the concept of fault. That seems
Jiminez 53 5/2/92 because if - the court's concern that if the person
who fell asleep or something else that happened to him, or in the mechanical defect case, was at that stage not voluntarily driving the motor vehicle, he
would only have a defence, as it were, or would
only escape liability if he could show that his
lack of control or the loss of control or the stateof voluntariness came around by no fault of his.
That element of fault seemed to be introduced
to some degree before the case of Gosney not so
much to widen or to lessen the impact of the
offence to introduce a concept of fault as some
sort of mens rea, but in fact to overcome a
reliance upon an involuntary act of driving,
involuntariness which came around by way of some
fault on the part of the driver. That fault may be
by reason of t~e fact that the driver was tired,
knew he was tired.
I think one of the cases, Hill v Baxter,
| ., | refers to a person who knows that he might have an |
| epileptic seizure and who drives a motor vehicle | |
| knowing that he might have an epileptic seizure. upon the fact that he was, at the time of the | |
| seizure, not driving voluntarily and therefore not driving in a manner dangerous to the public. |
DAWSON J: Do you embrace that concept? MR HOWIE:
No. I am in a bit of a cleft stick as well, I suppose, because I would hav.e embraced Kroon, and still would embrace Kroon as· saying that a person
who, at the time of driving, knows or ought to have
known that he would lose control, either by reason
of a mechanical defect or some defect in him or
some condition of him or some condition of the
driver, who would be driving in a manner dangerous to the public. There is just as much driving in a
vehicle, as for a person with a condition which may manner dangerous to the public to drive a defective lead to a loss of control to also drive the motor
vehicle.
DAWSON J: Why is that imported into the section? ....• respect it is said to be completely objective
and if a man is driving a motor car in a situation
where there is a real risk of there being an
accident, why is that not sufficient?
MR HOWIE: But if the real risk is due to the condition of the driver.
DAWSON J: Yes. If you say that the condition of the driver
is sufficient to provide the element of danger,
Jiminez 5/2/92 disregarding for the moment the word "manner'', then
it is just a question of what his condition was.
MR HOWIE: That is right, and they have introduced this
to -
DAWSON J: It does not matter if he knew what his condition was or not.
MR HOWIE: No, no, I accept that, it is an objective state, it is one of the objective circumstances as what
his condition, in fact, is.
DAWSON J: So that if a man, in fact, falls asleep at the
wheel he must have been driving in a condition in
which he was tired enough to fall asleep while
driving a car, therefore ipso facto he is guilty of
the offence.
MR HOWIE: Unless he has got some medical condition which
causes sleep to come upon him.
DAWSON J: That would not matter either.
MR HOWIE: It would if a reasonable person did not know or ought to have known.
DAWSON J: What has his knowledge got to do with it?
MR HOWIE: It is the objective, it is not his knowledge it is the objective, it is whether a reasonable person
ought to have known of that defect or that
condition which might have caused him to fall
asleep. I mean, that is the element of fault which
has been bought in, I suppose, in one way by Gosney
to overcome what they saw as a Draconian effect of
the legislation, to overcome a person who gets
themselves into a dangerous situation by no fault
of themselves, for example, because a policeman
indicated that they should drive down the wrong
side of the road believing that a policeman at the
other side was going to stop oncoming traffic. Gosney introduced the element of fault to overcome
that problem. The answer might be, as was said in
Giorgianni, that what is there is an honest and
reasonable mistake of fact, and that is really what
is going on and you do not need the concept of
fault.
BRENNAN J: And what is the notion he ought to have known - or ought to have realized that there was some risk
of falling asleep?
MR HOWIE: Well, that a reasonable man in his position would
have seen that there was a substantial risk of
falling asleep.
Jiminez 55 5/2/92 BRENNAN J: It is just that I do not understand that as ever
having been an element, or a consideration, under
the general criminal law, in determining
voluntariness.
MR HOWIE:· No, I know. It is what seems to have happened in some of these cases like Hill v Baxter and
Spurge to overcome the defence of voluntariness.
In other words, you cannot - what it seems to have
been is that the courts, they have tried to ..... of
this problem of saying, well look the person can
get out of this, as it were, or have a defence of
voluntariness, yet put themselves into a dangerous
situation where they bring about the involuntary
act and they should not escape liability in that
way by saying, because if a person knew or ought to
have known that if it were that they would become
voluntary, they cannot then rely upon the defence
of voluntariness.
BRENNAN J: I can understand that with regard to those who
| .,, | know that there is a risk that they are going to go |
| to sleep, or if they are going to fall under the | |
| influence of the drug they have taken or, arguably, | |
| that the car that they are driving is going to fall | |
| to pieces, but I do not understand the notion of, | |
| "ought to have known" if we concentrate upon the element of voluntariness, as relating to what | |
| happens at the moment when the danger materializes. |
MR HOWIE: I accept what Your Honour is saying. I am indicating that that is how this notion seems to
have come about. If you look at Spurge, which is
perhaps the perfect example and we can take
Your Honours back to Spurge, (1961) 2 QB, which is
the mechanical defect case, back to the passage in
fact that Mr Hidden read to Your Honours,
Your Honours can see what is happening and, in
fact, in Spurge, I appreciate Spurge was a case of
dangerous driving, but they were identifying the
dangerousness by the manner dangerous to the public. If I may read from that portion where it
says:
His Lordship read section 11 ••... If, on a
prosecution under section 11(1), the Crown
proves that a motor-vehicle driven by anaccused -
and that seems to be "ostensibly driven" or
"objectively driven", without any looking at the
question of voluntariness -
in fact endangers the public, that is strong
evidence and, indeed, in any but the most
exceptional circumstances, is likely to be
regarded by the jury as conclusive evidence
Jiminez 56 5/2/92 that the accused was driving in a manner
dangerous to the public. If, however, a
motor-car endangers the public solely by
reason of some sudden overwhelming misfortunesuffered by the man at the wheel for which he
is in no way to blame -
this brings in this concept of both involuntariness
and fault -
if, for example, he suddenly has an epileptic
fit or passes into a coma, or is attacked by a
swarm of bees or stunned by a blow on the head
from a stone, then he is not guilty of driving
in a manner dangerous to the public.
And cited is Hill v Baxter.
It would be otherwise if he had felt an illness coming on but had still continued to
drive, for that would have been a manifestly
dangerous thing to do.
Therefore, it seems that if he becomes involuntary
or loses control of the motor vehicle in that
situation, he does not escape it because they are
concerned with what was happening before he lost
control and the element of fault is brought back in
to it.
It is true that in the examples given above it
may be said that in a sense the man at the
wheel was not driving at all, and therefore
not driving dangerously. Indeed, that was the
view expressed by the Divisional Court in Hill
v Baxter, a view with which this court
entirely concurs. But it is also true that
the sudden mischance suffered by the man at
the wheel totally prevented him from
controlling the movements of the motor-car,
and that no fault of his in any way
contributed to the danger. On that ground also, it seems to this court that even if the man at the wheel could in any sense be said to
be driving, he would not be guilty of driving
in a manner dangerous to the public.
DAWSON J: So that if, in Hill v Baxter, the man had been
carrying a hive of bees in his back seat, he would
have been guilty?
MR HOWIE: Yes, because a person could have reasonably
foreseen that he might have been attacked by that
swarm of bees and therefore lost control of the
motor vehicle and would be guilty.
Jiminez 57 5/2/92 DAWSON J: But it does follow, does it not from what you are
saying, that - let me put it to you this way:
there is an offence of driving in a manner
dangerous without any question of impact or
accident?
MR HOWIE: That is right, yes.
DAWSON J: And it would mean that, for instance, if a man
drove a motor car however well after, say, one
hour's sleep, he would be guilty of an offence of
driving in a manner dangerous?
MR HOWIE: He could be. because there are two other factors that come into this in this question of whether or
not the person is driving in a manner dangero~s to
the public, and that is whether there is a real, as
opposed to a speculative, potentiality for danger.
That is the first. So if it is merely speculative,
then he is not driving in a manner dangerous to the
| ,,, | public. |
DAWSON J: Well, it is not a fanciful example: for instance
a truck driver who fails to have any of his
statutory rest periods, notwithstanding that he
drives his truck impeccably, he could nevertheless
be charged with driving in a manner dangerous, on
this argument?
MR HOWIE: Yes, if there is a real and not speculative danger to the community firstly; and secondly,
that if the manner of driving amounts to a seri ~'lS
breach of the misuse of a motor vehicle. It ha; to be a serious breach. They are the two matters
which seem, we would submit, in McBride that the
Chief Justice indicates are the way in which you
look at the question of whether or not there isdriving in a manner dangerous to the public as
opposed to driving which is not in a manner
dangerous to the public. If I could take Your Honours to McBride on
this question, and that is at (1965) 115 CLR, and
if I could take Your Honours to page 49 in the
judgment of the Chief Justice, this is the passage
that is often quoted:
The section speaks of a speed or manner
which is dangerous to the public. This
imports a quality in the speed or manner of
driving which either intrinsically in all
circumstances, or because of the particular
circumstances surrounding the driving -
now, we would say that even if a person is driving
objectively, or on the face of it perfectly
appropriately, one of the circumstances which can
Jiminez 58 5/2/92 make it dangerous, nevertheless, is the
circumstances of the particular person driving, or
the circumstances of the defect of the vehicle, or maybe even the circumstances of the road. The car
should not have been even driven at all.
DAWSON J:· It does seem to be referring to the physical
behaviour of the car, does it not, or the vehicle?
MR HOWIE: It reports a quality:
in the speed or manner of driving -
or because -
which either intrinsically, in all the
circumstances, or because of the particular
circumstances surrounding the driving, is in a
real sense potentially dangerous to a human
being or human beings who as a member ..... of
the public may be upon or in the vicinity of
the roadway on which the driving is takingplace.
It is the potentiality for danger which, in effect,
becomes the reality. One does not have to wait for
the car to go off the road for the dangerousdriving to occur, it can occur - the potentiality
is there before the car goes off the road.
DAWSON J: There has to be something of the behaviour of the
car which is dangerous, does there not?
MR HOWIE: We would suggest not. DAWSON J: Was it being driven too fast or with - - -
MR HOWIE: It can be. In fact, it can be in the vehicle itself, a dangerous vehicle or it can be in the
person.
DAWSON J: That is an existing physical condition. MR HOWIE: We would say in the person as well. DAWSON J: You say it can be in the condition of the driver? MR HOWIE: Yes, because the condition of the driver could, in those circumstances, turn the driving which
otherwise objectively might seem to be proper and
safe into a potential danger to the persons on the
road.
McHUGH J: It has got to be the manner of driving which has
got to be dangerous, does it not?
Jiminez 59 5/2/92
MR HOWIE: If you go to R v Coventry, 59 CLR, and this is the case has attempted to talk about what is the
manner, at page 638, and I will read it from about
point 6:
It is, in our opinion, wrong to exclude an act
or omission from "manner of driving" because
it is casual or transitory in some senses in
which these somewhat flexible words may be
understood. Such an exclusion may even
suggest that carelessness or inattention may
constitute a defence to a charge under the
relevant provision of the section. Sudden,
even though mistaken, action in a critical
situation may not, in,all the circumstances of
a case, constitute driving to the danger of
the public. But casual behaviour on the roadsand momentary lapses of attention, if they
result in danger to the public, are not
outside the prohibition of that provision
merely because they are casual or momentary. and this is the part we rely upon -
| ,., | Further - |
| "manner of driving" includes, in our opinion, all matters connected with the management and | |
| control of a car by a driver when it is being | |
| driven. |
McHUGH J: But that is different from saying that you are
guilty of driving in a dangerous manner because you
have got a box of bees in the back seat with a
defective lock on it or something.
MR HOWIE: It is a matter which is connected with the management and control of a motor vehicle.
DAWSON J: But the next sentence seems to indicate what
Their Honours had in mind.
MR HOWIE, Yes, I am sorry, I was trying to read the whole thing in context.
It includes starting and stopping, signalling
or failing to signal -
but we would submit that, otherwise, a person who
gets into a motor vehicle in a dangerous condition,
that is for example a person is almost - taking
sleep - drowsy and almost falling asleep, can
hardly keep their eyes open and starts the motor
vehicle is not driving in a manner dangerous to the
public until he falls asleep. We would ~ay that driving that motor vehicle, in that condition, is a
potential dangerous manner to the - - -
Jiminez 60 5/2/92 DAWSON J: That is the point, it is potentially but is not
actual. An epileptic who fails to take his Dilantin and gets into a motor car and drives
perfectly safely from A to B, he would be
committing an offence, on your test.
MR HOWIE:· Well, he would, provided the two other tests -
that is, that it is a real as opposed to a
speculative potential danger - I mean, we can all
speculate about potential dangers but it has got to
be a real one - and that it amounts to a serious
breach of the conduct of the motor vehicle. Andthey, I would say, are the two, if you like, points
which - - -
GAUDRON J: But how do you relate a serious breach of the
conduct of the motor vehicle, whatever that
expression means, with perfectly ordinary driving?
MR HOWIE: Well, it is the driving in that condition which
is the breach. A motor vehicle should not even be used, perhaps this is what the argument has got to
| ,, | be, that the motor vehicle should not even be |
| driven by a person in that condition. |
GAUDRON J: By an epileptic who has not taken his medication?
MR HOWIE: If again there is a serious
GAUDRON J: By a person who has not had he·r eyes tested for two years?
MR HOWIE:
But it is a matter then - of whether it amounts to a matter dangerous to a public is a matter for
the jury to assess the risk - - - GAUDRON J: But how do you relate that, for example, as a
serious breach of conduct - - -
MR HOWIE: Well, it may not be, and therefore it would not
be driving in a manner dangerous to the public.
GAUDRON J: But it just seems to me you· are talking in
circles, Mr Howie.
MR HOWIE: Well, in some ways we are, perhaps, because
driving in a manner dangerous to the public is a
factual matter for a jury to determine in all the
circumstances: the nature of the driving and in allthe circumstances of the driving. You cannot look
at anything in isolation, you have got to look at
all the circumstances to find out whether, in those
circumstances, the driving is a serious breach of
the proper use of a motor vehicle. You cannot just
draw out and say one factor, is that or is that not
driving in a manner dangerous to the public? You
Jiminez 61 5/2/92 have got to look at it all, and that is what the
jury does.
DEANE J: You might say that playing Russian roulette as you drive along is driving dangerously, even though you
survive the experiment.
MR HOWIE: That is right, and as Justice Barwick is saying,
it is the potentiality for danger. The actual
danger arises when the potentiality comes into
fruition.
DAWSON J: And on your argument it did not matter what
happened after he fell asleep, it did not matter
that he fell asleep, in fact, save that it provided
the impact to - - -
MR HOWIE: The falling asleep made the potentiality for danger into actual danger.
| .,, | DAWSON J: Yes, but it is irrelevant to the commission of |
the offence?
MR HOWIE: Well, no, only in that it has got the - - -
DAWSON J:
I am sorry, I should say it is irrelevant to the commission of the offence at least of driving in a manner dangerous.
MR HOWIE:
Yes. That is the argument that Kroon is based on. That seems to be. And Kroon is not alone in
that, it seems to run through all of these English cases. It seems to have come in, as I say, as a break on the question of voluntariness. The courts are getting away from the problem that perhaps is facing this Court, this question of when is an
involuntary act not driving in a manner dangerousto the public? They are saying, when the involuntary act occurs through no fault of the
person, because otherwise it seemed to be that the person can simply escape the liability for the actual danger presented simply by saying, "Well, I
fell asleep. It became involuntary. I lost control of the motor vehicle. There was a defect." And in Spurge they saw no difference between the question of whether it was a defect occurring to a
person or a condition of the person or whether itwas a defect in the motor vehicle. DAWSON J: But there is a distinction, is there not, because
one actually exists? That is, the dangerous
condition of the vehicle is a thing which exists during the whole of the time it is being driven.
MR HOWIE: Potential, yes.
Jiminez 62 5/2/92 DAWSON J: Well, no, it is there. If you have got no
brakes, you have got no brakes and on using an
instrument - - -
MR HOWIE: Yes, but there may be a defect which may or may not come around for many, many times. It may not
occur or it may occur. In that way, it is a bit like the sleep or not sleep. It is the
potentiality, and it is a matter for the jury to
assess whether the defect of that vehicle, to drive
that vehicle with that defect, with so serious a
breach of the proper use of the motor vehicle. It will not be every defect of the motor vehicle which
will give rise to driving in a manner dangerous tothe public. Again, it is an assessment of the
dangerousness presented by the defect of the motorvehicle.
McHUGH J: But does that mean every time somebody drives a
car with bald tyres that they are guilty of driving
in a manner dangerous because they might get a
blow-out?
MR HOWIE: No, but they may be in a particular circumstance. Again, we would only say that you cannot just look
at that and say, "Is it driving in a manner
dangerous to the public?" It is one of the factors
to be considered, the defect, and in the
circumstances and whether the person knew or ought
to have known of the defect, plus how great a risk
of danger was the defect.
TOOHEY J: If you were driving with that sort of tyre in wet weather at reasonably high speed, perhaps every
reason to think it would be driving in a manner
dangerous.
MR HOWIE: That is right, but a bald tyre on a perfectly
clear day on a country road is not driving in a
manner dangerous to the public, yet the factors are
the same but the circumstances have changed. But
what gives it the danger to the public is the condition of the motor vehicle. We would say the same thing arises from the condition of the person.
BRENNAN J: What about a case on a·country road on a clear
day when one of the tyres bursts and the car goes
to the other side of the road and hits the oncoming
vehicle. What do you say about that?
MR HOWIE: Again, unless the person knew or ought to have known - this is what Spurge would say - unless the
person knew or ought to have - no, perhaps it is
the other way round. It is driving in a manner dangerous to the public unless the person can show
that he did not know or ought not to have known of
the defect in the motor vehicle.
Jiminez 63 5/2/92
That was the case in Giorgianni. Mr Renshaw, the driver in the motor vehicle, had faulty brakes.
The brakes gave way when he was going down the
hill, he lost control of the motor vehicle. That
was a case again where the impact did not occur
till some time after he had lost control of the
motor vehicle through the defects in the brake, but
in Giorgianni, that was said to be a defence or
that he was not guilty of the offence of driving in
a manner dangerous if he did not know or ought to
have known of the condition of the brakes.If there was some defect in the tyre which he knew or ought to have known about, then he cannot
escape liability, yet if you do not import that
into it, if the vehicle does blow out and it
swerves to the other side of the road, it is
involuntary driving. Even if he knew of the
defect, it would not be driving in a manner
dangerous to the public, because he would say, "I
wasn't driving a - - -"
,,
DAWSON J: I do not want to repeat myself, but if you as a driver choose a dangerous instrument to drive, then
you can be said to be driving dangerously,
obviously.
MR HOWIE: Yes. MR HOWIE: Yes. DAWSON J: But that is a different thing from having a
condition as the driver whi:h may or may not result
in the car being driven dangerously. To use an intrinsically dangerous instrument is a different
thing.
MR HOWIE:
We would say that it goes as far as the condition of the driver, him or herself, and that seems to be
the basis of Kroon and that line of authority in
order it seems, as I was saying at the start, to get round the problem of an involuntary act which occurs where there seems to be some fault of the accused or the person responsible for the driving in the fact that the involuntary act occurred.
It may be that another answer is to do what happened in Ryan.
Your Honours, I have not got
Ryan on this, but Ryan was the case of the person who pulled the trigger of a gun when he was holding up a service station person. At the time that he was tying the person up he had a gun in his hand which had the safety catch off and it fired, and
the question came up as to whether that was a voluntary act, the discharge of the gun, because he said he was surprised and it was an automatic reaction. This Court there looked at this question
Jiminez 64 5/2/92 of what is the voluntary act that brings about the
consequences. I may be wrong, but perhaps that is
what Your Honour Justice Brennan was referring to
as to whether falling asleep at the wheel was
necessarily a voluntary act where the person gets
into a motor vehicle, drives that motor vehicle
voluntarily, conscious that there is a real risk of
falling asleep, gets tired, starts to close his
eyes. Can one say then that the voluntary act - - -
BRENNAN J: The events that follow are voluntary or not. MR HOWIE:
That is right. It was a bit like that in Ryan, and that is what the court was looking at, to some
degree there looking at the chain of acts to see
what could be seen to be the voluntary act and
whether the consequences that flowed from theseacts could be said to be involuntary.
McHUGH J:
Your argument seems to involve some subjective factor on the part of the accused, at least in some
cases. If a person with impaired sight drove a vehicle at a speed excessive for him but not
excessive for people with normal sight, would he be
guilty of dangerous driving?MR HOWIE: The subjective element is one of the circumstances, but I think that must be so because
what - I should not say that we would say that that
is so. It is one of the circumstances in which you
look at - - -
McHUGH J: So it may be there that it can convict you and it may acquit you?
MR HOWIE: That is right. It is one of the circumstances
which a jury look at. Are those subjective matters
pertinent to the driver? For example, his driving
experience, or her driving experience - those are
matters whether or not, what a driver might do on the first time behind a wheel might be dangerous where a driver who has had a lot of experience behind a wheel might not be driving in a manner dangerous in those circumstances. We would say that is another objective fact, even though it has a subjective element in it, because it is
subjective to the driver, is an objective fact for
the purpose of working out whether or not theperson is driving in a manner dangerous to the public. Anyway, that is how it seemed to be that this
case got fought in the district court. It is how the matter seemed to be considered in the Court of
Criminal Appeal, and the judges were looking at
Jiminez 65 5/2/92 this same concept as they did in Kroon, of whether
the person knew or ought to have known.
One other matter which I just referred to
which came up in argument was this question of
whether - and maybe this was a problem in this
trial that it was not centred at what should have
been seen as the driving - that was this question
of whether the "dangerous" is the going off the
roadway and whether that can be identified as the
driving in a manner dangerous to the public, and
whether you can draw inferences from that as to
whether or not the person was a voluntary act. In fact, there is a line of cases through Coventry, Hill v Baxter, and Spurge, even Gosney, those cases
that have been referred to all adopt that sort of
approach, that is, you look objectively at the
driving. There is a strong inference that the
driving is voluntary, that the person was incontrol. That then puts, it is said to be in all
of these cases, an onus upon the driver to evidence
| ,,, | some matter of - they call it a special |
| circumstance or a defence - which indicates that, in fact, the driver was not driving in a manner dangerous to the public when that vehicle went off the road. |
There is a Canadian case on the list, and I
will not take Your Honours to it, it is called
Zavitz; and there is another one called Lowe in
1974 which I will hand up to Your Honours only
because it is on this point. These Canadian cases
are the Ontario Court of Appeal. That is all I
could find in Canada. Both Lowe and the one I have
put on the list of Zavitz all proceed on this
basis, that is, that you look at the objective
element of the dangerous driving. You can draw a
strong inference of guilt, if you like, or of the
voluntariness action of the driver, and then the
driver then has an onus, an evidentiary onus at
least, to evidence some material or a special circumstance or, I think in Coventry they called it
the defence of involuntariness, to show that, infact, the person was not driving in a manner
dangerous to the public.
I raise Lowe only because of the matter that
flowed between Your Honour Mr Justice McHugh and
·Mr Hidden about the failure of an explanation and
whether the person has some reason for not giving
an explanation of retrograde amnesia. In Canada it is looked at as being a factor which goes into the
melting pot, as it were, at the end of the day. A
failure to give an explanation because of some
injury or some retrograde amnesia is at the end of the day a matter to be taken into consideration in the Crown's onus to show that it is driving in a
Jiminez 66 5/2/92 manner dangerous to the public. But that way of
dealing with this matter did not seem to be the way the matter was left to the jury in this matter; nor did it seem, apart from some statements in
His Honour Mr Justice Lee's judgment in this case
to be the way that these matters have normally been
approached.
DAWSON J: It is interesting they say that there has to be
fault, but the fault consists of the driving
dangerously.
MR HOWIE: Yes, in fact, they have had a lot of trouble in Canada because they cannot make up their mind
either whether it is advertent or inadvertent.
DAWSON J: Well, I have not read it obviously carefully, but
it seems to be what they are saying, that the fault
is provided by the fact that your driving falls
below the standard expected of the ordinary
citizen. In other words, the fault is the driving dangerously.
MR HOWIE: That is the Gosney test of fault too. DAWSON J: Well no, it is a little more though, is it not?
MR HOWIE: Is it? Well, I think they refer to Gosney in
Lowe as where this is an element - of finding the
element of the offence.
DAWSON J:
I am looking at the bottom of page 197 and the top of 198. If it is clear that fault is an
essential element, that that fault may be found in
the departure from the standard of care of aprudent driver, which is, as I understand it, that fault is the dangerous driving itself. MR HOWIE: That is right, yes. DAWSON J: Well, I do not understand that either. MR HOWIE:
Yes, well I suppose again, though, they are trying to import that into situations which might
be covered by an honest but reasonable mistake of fact. They are saying, well, that is really no
fault because a prudent driver would have made the
same mistake. Anyway, I just refer Your Honours to
Lowe because that is the track it is going down toin Canada and it raised the matter that was being discussed earlier in the day.
GAUDRON J: Mr Howie, can I ask you this? I take it that the case was conducted by the Crown on the basis,
and only on the basis, that the accused, the
applicant in this case, fell asleep?
Jiminez 67 5/2/92
MR HOWIE: Yes, but that he knew that 1e had a risk of falling asleep; that he got t~red and closed his
eyes as a consequence of getting tired.
GAUDRON Jc Yes, I see. Well there is no question of his
having deliberately driven with his eyes closed
what might be some new form wilful blindness?
MR HOWIE: No, I do not think so. McHUGH J: What about his statement from the dock at
page 22, line 24.
MR HOWIE: I do not think it was ever suggested that he closed his E-'19S - when you ay "deliberately",
maybe he clo3ed his eyes iberately because he was getting tired and closed his eyes as a
consequence of that, but not for any other ~eason
deliberately.
| ,, | GAUDRON J: Well, his eyes closed. | ||
| |||
|
was at risk, not that he ought to have known?
MR HOWIE: No, I do not think it was ever left on that basis at all - no, that he knew and we say that
that is from His Honour's summation of the Crown
case, that that is wh~t the Crown was saying, that
he knew that there wa::, a premonition of sleep, if
you like.
GAUDRON J: And so it was being asked to be - that knowledge
was being asked to be inferred from what evidence?
MR HOWIE: Well, from firstly, I think, the first answer that he gave to the police when they asked him what
happened, "I fell asleep". The Crown might say, "Well in the normal circumstance, if you had not had a premonition of sleep, or had not felt tired, your answer might have been, 'I do not know what happened, the next thing I was going towards the tree'. The fact that you answer to a policeman who asks you what happened, "I fell asleep" is an indication that you know what happened, you fell asleep because you were tired".
GAUDRON J: I do not want the jury address, Mr Howie MR HOWIE: Your Honour, I am sorry - old habits die hard. GAUDRON J: - just the items of evidence on which you would rely.
Jiminez 68 5/2/92
MR HOWIE: But that is an inference we say was open to a jury on that matter.
McHUGH J: Well, there is stronger evidence at page 19
and - - -
MR HOWIE: Yes, I was coming to the next one and the next one is in the record of interview, when he was
asked about, had he felt tired. We would say the same inference was open that Your Honour
Mr Justice McHugh was drawing before, that the
answer to that is almost an explanation and an
apologia to the fact that he did. An explanation
in that the heater was on and an apologia in that,
look I was going to stop at the next town. The could look at the circumstances in which he did jury could take it on that basis. Plus the jury fall asleep and the· short term of the driving and say, "Look," if you like, "he must have known" or "he did know, it is evidenced by those questions,
but it is also evidence that anybody would know in those circumstances". But it was never put on the
| ,,. | basis of "ought to have known". |
It seems - and that is the whole way the case
was based. The Crown said he knew he got tired, he
closed his eyes as a consequence of getting tired,
he knew he was getting tired, he closed his eyes.
The defence case was, "No, we didn't. We had no awareness. It was just a sudden onset of sleep".
And the jury were left on that basis, really, for
determining whether, in those circumstances, he was
driving in a manner dangerous to the public.
GAUDRON J: And the onus was on the Crown at all stages then
to prove -
MR HOWIE: Yes, I think that is made quite clear. I do not think there is any reference to a changing onus or
anything else. It was for the Crown - - -
GAUDRON J: The onus is not necessarily made entirely clear, is it, on that issue?
MR HOWIE: Well, only that there is never any reference to -
I mean, as I read it, the whole reference, any
reference to onus is upon the Crown. It was for the Crown to convince the jury that he was driving
in a manner dangerous to the public. It would have been, we would say, unlikely that -
GAUDRON J: But in the circumstances of this case, on the
Crown case, that meant the onus was on the Crown to
prove beyond reasonable doubt that he knew that he
was tired, and so tired that there was a risk of
his falling asleep.
Jiminez 69 5/2/92 MR HOWIE: Well, so tired that he closed his eyes as a
consequence to it and that was the manner
dangerous. I am sorry, am I avoiding the question?
GAUDRON Jr Yes.
MR HOWIE: No, I think - I mean, I am only GAUDRON J: It could not simply be that he knew he was tired. I mean, I know I am tired in circumstances in which I am at no risk of falling asleep at all.
MR HOWIE: No, that is right, but as a consequence of feeling tired he closed his eyes, and that was the
manner dangerous. That it ~as not a sudden onset
thing that he closed his eyes - - -
GAUDRON J: Well, I am asking what the knowledge was in
respect of which you accept the Crown bore an onus
of proof in this case.
.,
MR HOWIE: Well, that from things that he said to the police
clearly indicate - well, we say it was open to a
jury to infer that from those things he knew that
he was becoming tired and closed his eyes. As a consequence of becoming tired, not as a consequence
of some sudden onset of sleep of which he could not
have been aware.
GAUDRON J: I find, from that answer - if you say that is the way the case was left to the jury, I would
simply not understand what it is that the jury were
asked to find beyond reasonable doubt.
MR HOWIE: I am only trying to take that from the summing up as I see that what His Honour said to the jury as
to what the Crown was saying. And it really only
comes from that short statement where he was
summarizing what he said was the Crown's
contention.
DEANE J: When you look at section 4(1) of the Traffic Act
which, of course, is the section that is most often
concerned with driving in a manner dangerous, itdoes give a little more weight to the suggestion
that driving in a manner which is dangerous to the
public refers to the way the car is manoeuvred, as
it were, rather than to the action or the condition
of the driver. I was just wondering if there is anything you would like to say in relation to that?
MR HOWIE: No, only that I suppose one would have thought that perhaps the concept of speed is a little
curious. I mean, one would have thought that a
speed dangerous was always going to be a manner
dangerous.
Jiminez 70 5/2/92 DEANE J: Speed is, obviously, objective - - -
MR HOWIE: Yes.
DEANE J: - - - and the things before negligently, ~uriously, or recklessly look to the conduct of the driver than, one would have thought, as a matter of
just language, there would be something to be said
for the view that you then move into a different
area, and that is what the car does.
MR HOWIE: By reason of speed or manner? DEANE J: Yes.
MR HOWIE: Perhaps not, perhaps one can still import into
that the subjective matters which are involved in furiously, recklessly and negligently. I can see
what Your Honour is saying. No, I do not
know -
DEANE J: It is very hard to work out why, in this case, you would say:
in a manner which is dangerous to the public
was the appropriate description rather than
recklessly?
MR HOWIE: Yes, if you were just looking at 4? DEANE J: Yes.
MR HOWIE: Yes. You can go on many of those things, I think, and equate many of the instances of driving
as one or other of those concepts. They seem to
have just tended to cover completely the field that
they intended to cover whether or not there is some
overlap between them.
DEANE J: Yes, but the point I was making is you have got
negliently, furiously, recklessly, which seems to be a gradation in terms of a conduct.
MR HOWIE: Of the person. DEANE J: You then go to something that the car does. If
there were nothing more I think I would have read
the next one as fitting into the context ofsomething the car does.
MR HOWIE: Yes. No, I cannot add anything to that. I have
not gone back to the history to see how all those
things came to go in there. These offences have a
very long history and I do not know that they were
all put together at the one time with any sort of
view about what they meant. I think they may have
Jiminez 71 5/2/92 all come to be put in at various times and in
various ways, but I have not got the history of the
section with me.
McHUGH J: They were put in because, among other things, the
old section 54 did not get enough convictions.
MR HOWIE: Old manslaughter did not. McHUGH J: No, section 54 of the Crimes Act, "negligent
act" .
MR HOWIE:
Negligent act, cause grievous bodily harm. have imported 54, of course. It has been held that
They
54 has the same standard as manslaughter, so a very
high standard of negligence required, and the
trouble with the Crown proving to that level. That
is how they came to go into the Crimes Act, yes,
but I am not sure how they came to go into section4. I do not know that they were all put into
| ., | section 4 at the same time with any sort of draftsman's view about what they each meant and how | |
| ||
| ||
| Honours wish to see that, that the history of it | ||
| may be in Buttsworth, which seems to look at | ||
| ||
| have nothing further, thank you, Your Honours. |
MASON CJ: Thank you, Mr Howie. Mr Hidden?
MR HIDDEN: Your Honours, only this perhaps: in so far as Kroon, if it be accepted as a correct statement of
the law, speaks of what a driver knew or ought to
have known, as far as the onset of sleep is
concerned, it may be preferable to speak in theterms in which Sir Frederick Jordan spoke in Dennis
v Watt, of whether there was warning of impending
sleep. The only reason for that, Your Honours, is that to say whether a driver knew or ought to have known that he might fall asleep, no doubt, accurately expounds the test but no two people have the same capacity to fall asleep at the same time
or in the same circumstances. There is not a meanaverage, in that respect. Some people are incredible stayers; other people could not drive for more than about two hours before having to take
a rest; others can drive for much longer.So that, in a sense, while the test is
objective - while the "ought to have known" test is
objective, it must to a certain extent be relatedto the individual behind the wheel, and for that
reason it may be safer to speak of whether the jury
is satisfied on the whole of the evidence that thed~iver had a warning of the possibility of
Jiminez 72 5/2/92 impending sleep. That is the only matter which I
wish to raise.
BRENNAN J: Mr Hidden, just before you resume your seat, I want to draw your attention to a sentence that I have been looking at in Ryan, to see whether you have any - - -
MR HIDDEN: In Ryan v Reg, Your Honour? Yes, I do not have it with me, Your Honour.
BRENNAN J: You will recollect the different ways in which the case may have been put in terms of the
causation of the death that ultimately occurred,
and one of the ways in which it was said that it
could be put was the presentation of the gun
simpliciter which may have caused the death. The Chief Justice said, at page 218 in 121 CLR: That presentation in the setting of its
circumstances must cause the death. It seems
to me that it could only be held to do so if
the unwilled discharge of the gun ought to
have been in the contemplation of the
applicant at the time.
MR HIDDEN: Of presentation of it? BRENNAN J: In other words, the presentation of the gun was held capable of being regarded as the cause of
death if the presentation was voluntary, even
though the subsequent act- of discharging of the gun
which was the immediate cause of death was
involuntary, provided there was a contemplation of
that subsequent involuntary act. Now, why is it
that one cannot, by a parity of reasoning, say thatif it is in contemplation of a driver of a car that
whilst he is still physically in control of the car
he will be driving it in a manner dangerous in the
sense that he is asleep or his eyes are closed
while the car is proceeding, it cannot be regarded as a voluntary act of driving at the moment when it
is dangerous?
MR HIDDEN1 Because of the terms of the section,
Your Honour, murder requires an act causing death, that there need be no temporal link between the two. An act might cause someone's death months later. It is then murder. But the section does require a high degree of contemporaneity between
the driving in a manner dangerous and the impact,
and the impact must cause death.
BRENNAN J: Or at the time of leaving the roadway, is it
not? Section 52A, is it not?
Jiminez 73 5/2/92 MR HIDDEN: Yes, section 52A. As I recall it, Your Honour, what this Court was speaking about in Ryan was that
identifying the act which causes death is a
question of fact for the jury and it was open to
the jury to say that the voluntary act causing
death was not necessarily the pulling of thetrigger, but it could have been some antecedent
act.
BRENNAN J: Then the question is whether or not the
subsequent event of the discharge of the gun was
accidental.
MR HIDDEN: Well yes, I suppose so. But provided the jury
was satisfied that the pointing of the gun was a
voluntary act, then for the purpose of Ryan, which
of course was a felony murder case, it mattered not
whether the discharge of the weapon was accidental.
If the presentation of the gun were the voluntary
| ,., | act then there was an act causing death, and |
| because it was felony murder and they had to be no | |
| specific intent proved, there was your crime. | |
| Whereas culpable driving requires death caused by impact at a time when a vehicle is being driven | |
| in a manner dangerous to the public, and there must | |
| be close contemporaneity, if not precise contemporaneity. If the Court pleases. |
MASON CJ: Thank you, Mr Hidden. The Court will consider its decision.
AT 4.10 PM THE MATTER WAS ADJOURNED SINE DIE
Jiminez 74 5/2/92