Pike v Becker
[2012] WASC 397
•26 OCTOBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PIKE -v- BECKER [2012] WASC 397
CORAM: EM HEENAN J
HEARD: 1 JUNE 2012
DELIVERED : 26 OCTOBER 2012
FILE NO/S: SJA 1063 of 2011
MATTER :Criminal Appeals Act 2004 Part 2
and
Prosecution Notice Number PE 59722/09 in the Magistrates Court of Western Australia at Perth
BETWEEN: CHRISTOPHER JAMES PIKE
Appellant
AND
ALAN WILLIAM BECKER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE G MIGNACCA-RANDAZZO
File No :PE 59722 of 2009
Catchwords:
Criminal law - Dangerous driving occasioning death - Application for leave to appeal against conviction - Car colliding with rear of broken down truck left partly on edge of freeway at night - No lights from parked vehicle visible to passing motorists - Allegation that driver fell asleep at wheel - Long journey at night - Allegations of driver fatigue - Competing inferences available - Need for adverse inference to be only reasonable inference - Exact cause of accident not established
Legislation:
Criminal Appeals Act 2004 (WA)
Road Traffic Act 1974 (WA)
Result:
Leave to appeal granted except for part of ground 4
Appeal allowed
Conviction quashed and orders set aside
Charge dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr J Newton-Palmer
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Dennis v Watt (1942) 43 SR (NSW) 32
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; (2003) 197 ALR 201
Harvey v Matthews [1999] WASCA 58
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572; (1992) 106 ALR 162
Kaighin v The Queen (1990) 1 WAR 390; (1990) 11 MVR 119
King v The Queen [2012] HCA 24; (2012) 86 ALJR 833; (2012) 288 ALR 565
Kroon v The Queen (1990) 55 SASR 476; (1990) 12 MVR 483; (1990) 52 A Crim R 15
Lodge v Magorian [2012] WASCA 90; (2012) 60 MVR 408
Lyford v Wride [2009] WASC 106
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Martinez v The State of Western Australia [2007] WASCA 143
McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44
McPherson v Lucas [2008] WASCA 56; (2008) 49 MVR 429
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
Mule v The Queen [2005] HCA 49; (2004) 221 ALR 85; (2005) 156 A Crim R 203
R v Hinz [1972] Qd R 272
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 52 MVR 21
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Tobin v Dodd [2004] WASCA 288
Virgo v Elding [1939] SASR 294
Waldie v Cook (1988) 91 FLR 413; (1988) 8 MVR 191
Wright v The State of Western Australia [2010] WASCA 199; (2010) 203 A Crim R 339
EM HEENAN J: This is an application for leave to appeal by Christopher Frederick Pike against his conviction in the Magistrates Court at Perth on 21 March 2011 before his Honour Magistrate Mignacca‑Randazzo. Mr Pike had been charged with one count of dangerous driving occasioning death pursuant to s 59(1)(b) of the Road Traffic Act1974 (WA). He pleaded not guilty to the charge and was tried before his Honour on 24 and 25 February 2011. On 21 March 2011 his Honour gave detailed written reasons for decision and convicted Mr Pike. After hearing submissions in relation to the penalty to be imposed his Honour sentenced Mr Pike on 30 May 2011 to a period of 18 months' imprisonment, suspended for two years, and disqualified him from holding or obtaining a motor driver's licence for three years.
The proposed grounds upon which Mr Pike seeks leave to appeal against this conviction are:
1.The magistrate drew adverse inferences and conclusions without supporting evidence.
2.The magistrate made errors of fact without proper consideration of all available evidence.
3.The magistrate made adverse inferences where two or more possible inferences could be drawn from the available evidence, whereas such inferences should be made in favour of the accused.
4.The magistrate wrongly took into account evidence which he should not have, namely expert evidence which had been based solely upon an erroneous briefing by the senior police case officer in charge of the investigation. When the error was brought to light the figures and response were corrected but the conclusions upon which the magistrate relied were not reconsidered.
5.The magistrate wrongly took into account conjecture by the prosecution without any supporting evidence.
6.The magistrate wrongly concluded that there were only two possible alternatives, both adverse to the accused, without considering a third plausible alternative which favoured the accused.
Orders for directions in relation to the application were made by his Honour, Hall J on 30 September and 7 November 2011 and these included a direction that the application for leave to appeal should be heard at the same time as any appeal.
Leave to appeal
In order to ventilate the issues which the appellant seeks to raise it is necessary first for him to obtain leave to appeal ‑ Criminal Appeals Act 2004 (WA) s 27. Such leave to appeal is required in relation to each proposed ground of appeal and cannot be granted unless the appellant demonstrates that each particular proposed ground of appeal has a reasonable prospect of success ‑ s 27(2). For any proposed ground to have reasonable prospects of success the ground must have a rational and logical prospect of succeeding or, in other words, a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
The proposed grounds of appeal have earlier been set out. Ground 4 contends that the learned magistrate wrongly took into account evidence which he should not have, namely expert evidence based solely upon an erroneous briefing by the senior police case officer in charge of the investigation. This proposed ground goes on to contend that when the error was brought to light and the figures in response were corrected, the conclusions upon which the magistrate relied were not reconsidered. This, in effect, raises two matters, the first dealing with whether or not the expert evidence should have been admitted at all, and the second whether his Honour was justified in relying upon certain of its conclusions which were alleged not to have been corrected after errors were identified.
This ground of appeal relates to the report and evidence of the psychologist Professor Hartley from Murdoch University, whose specialty was research into the effects of fatigue and driving and who produced a report stating his opinions on such issues relative to this accident which became exhibit 14. There was no objection to the relevant expertise of Professor Hartley to provide opinion evidence on these issues at this trial, nor any objections to the admissibility of any part of his report. He was cross-examined by counsel for the appellant on the opinions and the significance of them contained in the report but nothing in the cross-examination questioned his competence or ability to provide such opinion evidence. There is nothing, therefore, to raise any arguable basis to support a proposed ground of appeal that Dr Hartley's evidence or his report was inadmissible and it follows from this that, in my view, leave to appeal to advance such an argument should be refused. As already noted, however, that forms only the first part of the issues sought to be raised by ground 4.
As to the second part, the substance of the appellant's desired contention is that Professor Hartley's report and his ultimate opinions were based on a version of events, including the recitation of the appellant's reported conduct on the day before the accident, which was mistaken. The instructions given to Professor Hartley by the police officer who commissioned his report were that on the morning of 13 October 2008 at Parry Beach the appellant had risen at 7 am so that, by the time of the accident at 4 am on 14 October 2008, he had been awake continuously for 21 hours. For reasons set out in Professor Hartley's opinion, the witness advanced the thesis that the effect of such an extended period without any sleep upon a person's conduct and functioning would be comparable to having a blood alcohol concentration of 1.00%. When it became apparent that Mr Pike had slept in on the morning of 13 October 2008 until 10 am, it meant that his continual period of wakefulness had been 18 hours by the time of the accident. That information was relayed to Professor Hartley after he had prepared his first report but before he gave evidence and, as a result, he made a correction to record the period of wakefulness for the shorter duration and adjusted his final conclusion by advancing the opinion that, in the circumstances, the effect of continual wakefulness for a period of 18 hours would be comparable to a person having a blood alcohol concentration of 0.05% ‑ a conclusion which the learned magistrate accepted and which clearly contributed to his conclusion that the appellant's driving was affected by fatigue to an extent which made it objectively dangerous in all the circumstances. Whether, in the light of this correction and the adjustment to his final conclusion, the learned magistrate was justified in relying upon the evidence of Professor Hartley or treating it as making a material contribution to his ultimate conclusion is the subject of the second part of proposed ground 4 of appeal. I consider that that issue is reasonably arguable and that leave to appeal in respect of that aspect of proposed ground 4 should be granted but not, as I have said, for the former part.
I regard all the other proposed grounds of appeal, 1, 2, 3, 5 and 6, as raising arguable issues in respect of which leave to appeal should be granted.
Significance of grounds of appeal
Counsel for the respondent has submitted that of the grounds of appeal grounds 1, 3 and 6, in effect, assert that the judgment reached in the Magistrates Court was unsafe or satisfactory ‑ Criminal Appeals Act 2004 (WA) s 8(1)(b) and M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 ‑ 494. Counsel for the respondent submits that grounds 2 and 5 assert that the learned magistrate made errors of fact and, having already rejected ground 4 insofar as it alleges that inadmissible evidence was received, I consider that the balance of that ground in respect of which leave has been granted also asserts errors of fact. When giving that characterisation to grounds 2, 5 and the remainder of ground 4, it is necessary to recognise that the appellant has conducted this appeal in person and has no legal experience, qualifications or training and that due allowance for his lack of close familiarity with legal doctrines and distinctions may need to be made ‑ see Tobin v Dodd [2004] WASCA 288 [14] ‑ [16]. Treating these grounds of appeal in their context and having regard to the appellant's submissions, I consider they should be treated as including the assertion that if the alleged errors of fact had not been made and instead findings supported by the evidence had been reached by the learned magistrate, neither they alone nor in combination with other evidence would have established the charge to the requisite degree of proof.
I accept the submission of counsel for the respondent that in determining whether or not a verdict or judgment under appeal is unsafe or unsatisfactory this Court must ask itself whether, on the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the accused should have been convicted ‑ M v The Queen (479) and Harvey v Matthews [1999] WASCA 58 [11]. In doing so, the Court must not disregard the benefit which the magistrate has had in having seen and heard the witnesses and observe the usual restraints against setting aside or modifying findings of fact made at first instance ‑ Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; (2003) 197 ALR 201 [27] ‑ [29] and Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330, 168 ‑ 169 (Kirby J).
Finally, counsel for the respondent submitted, correctly, that if the evidence upon the record itself contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court to conclude that even making full allowance for the advantages enjoyed by the trier of fact there is a significant possibility that an innocent person has been convicted, then the Court is bound to set aside a judgment based upon that evidence ‑ M v The Queen (492 ‑ 494).
In cases dealing with circumstantial evidence where an inference of guilt is drawn the circumstances must be such as to exclude any reasonable hypothesis consistent with innocence: Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 [16] ‑ that being an inference which is 'reasonably open on the evidence' ‑ Wright v The State of Western Australia [2010] WASCA 199; (2010) 203 A Crim R 339 [22]. Put another way, the inference of guilt must be the only inference reasonably available from all of the evidence: Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 [11].
The charge, the background facts and the trial
Mr Pike was charged that on 14 October 2008 he drove a motor vehicle on a road, namely Kwinana Freeway, in a manner that was, having regard to all the circumstances, dangerous to the public or to any person, and at the time of driving was involved in an incident occasioning the death of Luke Nightingale Rodger contrary to s 59(1)(b) of the Road Traffic Act.
Mr Pike was born on 3 June 1986 and was, therefore, aged 22 years and a few months at the date of the accident. The deceased, Luke Nightingale Rodger, was the passenger sitting in the front passenger's seat of Mr Pike's vehicle and a close friend of many years.
On the weekend before the accident Mr Pike, the passenger, Mr Rodger, and another friend had been on a holiday at Parry Beach, about 30 km from Denmark, camping and fishing. The friend had to return to work and left on the Sunday night and had taken Mr Pike's car for that purpose. Pike and Rodger remained at Parry Beach on the Monday, spending the day fishing, and on the Monday night had a big dinner at about 9.00 to 9.30 pm before leaving Parry Beach at about 11.00 pm in Mr Rodger's car to return to Subiaco, where Pike was living. The Ford Fairlane vehicle in which they were travelling belonged to Mr Rodger and was in good condition but Mr Pike drove because Mr Rodger did not have a driver's licence at the time.
After leaving Parry Beach the two initially stopped in Denmark, leaving there at about 11.20 pm. They drove north, stopping at another place for a break and coffee, and then again at Williams on Albany Highway, where they again had coffee. As they drove through the night and were about 30 to 40 km north of Williams the Fairlane struck a small kangaroo (which are prevalent in the area) but this did not affect the driving of the vehicle and the headlights kept operating. They stopped and inspected the vehicle and then drove on keeping especially vigilant for kangaroos until reaching Armadale. From there, they crossed on to Armadale Road and then on to Kwinana Freeway when Pike turned north, heading for the city. Mr Pike has no recollection of the details immediately preceding the accident. Other evidence demonstrated that while the Fairlane was travelling north on Kwinana Freeway approaching the Narrows Bridge and approximately 200 m south of Mill Point Road overpass it collided with the rear of a Hino removal truck which had broken down quite some time before and had been left stationary on the left‑hand side of the roadway partly in the emergency breakdown lane, although there was some uncertainty, and hence controversy, over whether or not, and if so to what extent, the rear of the removal truck was protruding into the left side lane of the northbound lanes of the freeway which carried traffic at that point. The time of this collision was around 4.15 am on Tuesday, 14 October 2008.
The substance of the case for the prosecution was that Mr Pike, as driver of the Fairlane, must have fallen asleep just before the impact and that his driving was dangerous because he was driving while tired. Various pieces of circumstantial evidence were relied upon to conclude that the appellant must have fallen asleep just before the accident and further circumstantial evidence was relied upon to suggest that he was unduly tired during the journey from Denmark, or at least in its latter stages. He maintained that this was not so and the substance of the application for leave to appeal and the appeal is that the learned magistrate was wrong to conclude that it had been proved that the accident was caused because Mr Pike fell asleep or that he was unduly tired at the time or at any part of the journey.
Mr Pike was represented by counsel at the trial in the Magistrates Court which proceeded over two days. A number of witnesses were called for the prosecution. Mr Pike elected not to give any evidence on his own behalf and no other evidence was adduced for him.
Findings which his Honour considered were significant and relied upon when convicting the appellant were:
1.The last time he had a drink of alcohol was some time on Sunday night, 12 October 2008, and no alcohol was detected in his blood after the collision;
2.The Ford sedan to some extent travelled into the emergency lane or, in any event, into the rear of the stationary truck;
3.There were no signs of the brakes being applied before the collision as demonstrated by the absence of skid marks at any point prior to the gouge mark in the road surface;
4.There was no mechanical or electrical defect in the Ford sedan;
5.There is evidence that the accused was driving on the Kwinana Freeway with the cruise control set on the Ford sedan to 100 km [ph] (in excess of the speed limit at least in the proximity of the area of the point of collision);
6.There was some reasonable distance and time before the point of the collision that the accused would have been able to see the truck if he was keeping a proper lookout and being attentive.
Dangerous driving causing death
The charge against the appellant alleged an offence contrary to s 59(1)(b) of the Road Traffic Act which at the date of the incident provided:
(1)If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of, or grievous bodily harm to, another person and the driver was at the time of the incident, driving the vehicle ‑
(a)…
(b)in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or any person,
the driver commits a crime and is liable to a penalty in subsection (3).
The Act further provides by s 59B(6) that:
(6)In any proceedings for an offence against s 59 or 59A it is a defence for the person charged to prove that the death, grievous bodily harm or bodily harm occasioned by the incident was not in any way attributable (as relevant) ‑
(a)…
(b)to the manner (which expression includes speed) in which the motor vehicle was driven.
As his Honour observed in his reasons for decision, s 59(1) of the RTA was amended by the Road Traffic (Amendment) (Dangerous Driving) Act 2004 (WA). The effect of that amendment was examined by the Court of Appeal in The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 52 MVR 21 where, with the agreement of McLure and Miller JJA, Steytler P observed [25]:
The changes introduced by the amending Act are significant. Most importantly, there is no longer any requirement that causation be proved as an element of the offence. The prosecution need merely establish that the 'incident' occasioned death or grievous bodily harm. By subs 59B(6) the person charged bears the onus of proving that the death or grievous bodily harm occasioned by the accident was not in any way attributable to the fact that he or she was under the influence or to his or her manner of driving.
His Honour also examined some of the leading authorities dealing with the principles and elements of the offence of dangerous driving causing or occasioning death, or grievous bodily harm. In doing so, the learned magistrate observed, with complete orthodoxy, that the fact that a collision occurred between the vehicle driven by the appellant and the stationary truck and that the passenger in the Ford sedan died does not of itself mean that the appellant's manner of driving at the time of the incident was dangerous. His Honour referred to Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572; (1992) 106 ALR 162 for the proposition that it is not the result that gives the driving the necessary quality of being dangerous. It will be necessary to return to the observations of the Court in Jiminez in more detail shortly. The decision in Jiminez is also authority for the proposition that if it were the fact that the driver of the Ford sedan momentarily fell asleep at the wheel and that this led to the collision, that does not mean that the appellant's manner of driving at the time of the incident was necessarily dangerous. More needs to be examined and considered before any such conclusion could be supported.
In this case, the appellant submits that the evidence at the trial cannot support a conclusion, beyond reasonable doubt, that he did fall asleep, even if only momentarily, before the collision and that there is at least another reasonable explanation for the accident inconsistent with a finding that his manner of driving was dangerous. Both these aspects of the appellant's present submissions will need to be more closely examined but, for present purposes, it is necessary to focus on the principle that the prosecution, in such a case, must establish beyond reasonable doubt that the appellant's manner of driving at the time of the incident was dangerous.
In this regard, the learned magistrate referred to the observations in the Full Court in Kaighin v The Queen (1990) 1 WAR 390; (1990) 11 MVR 119, 395 as follows:
It seems to us that the following propositions can be derived from the above authorities and a construction of s 59(1) of the Road Traffic Act:
…
(b)Negligence is not an element of dangerous driving; negligent driving is not necessarily dangerous driving, thus failure to keep a proper lookout on a road on which there is no other traffic and there are no other persons in the vicinity is not dangerous driving.
(c)For driving to be 'dangerous' within the meaning of s 59(1) it must in reality, and not speculatively, be actually or potentially dangerous to the public or another person.
(d)A momentary lapse of attention may constitute dangerous driving.
(e)The test as to whether driving is dangerous is objective.
(f)Section 59(1) does not exclude a defence based on absence of fault, including a defence based on s 25 of the Criminal Code or a defence based on the conduct of another person.
These observations, although made before the above amendments to s 59, remain relevant and applicable.
His Honour also referred to the observations in McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44 that for driving to be dangerous the breach of conduct by the driver must be so serious that in reality, and not speculatively, the conduct is potentially dangerous to other persons who might be on the road or in the vicinity or passengers in the vehicle. That observation has frequently been repeated, including in Jiminez and in McPherson v Lucas [2008] WASCA 56; (2008) 49 MVR 429.
However, it is necessary to give closer attention to these principles in a case such as this where it is alleged that the fatal accident was due to the driver falling asleep and that it was his manner of driving when so tired as to be susceptible to falling sleep or to episodes of micro sleep that constituted the dangerous manner of driving.
It is convenient to refer first to the decision in Kroon v The Queen (1990) 55 SASR 476; (1990) 12 MVR 483; (1990) 52 A Crim R 15, a decision of the Court of Criminal Appeal of South Australia (King CJ, White & Mohr JJ). This was a case where the appellant had been convicted on three counts of causing death by dangerous driving. These related to the deaths of three occupants of a vehicle hit by a truck driven by the applicant in circumstances where, despite his denial, the only sensible explanation of the entire affair was that he had fallen asleep. In the reasons for decision of King CJ [16] ‑ [19] the learned Chief Justice examined many of the decisions dealing with drivers falling asleep at the wheel and as to whether or not such conduct constituted driving in a manner dangerous to the public, including Virgo v Elding [1939] SASR 294 which contained observations capable of suggesting that it would be impossible as well as disastrous to hold that falling asleep at the wheel was any defence to a charge of dangerous driving. As King CJ observed, that observation does not deal with the case of a driver who has no warning that he is getting sleepy. That decision had been explained in a different way in Dennis v Watt (1942) 43 SR (NSW) 32 and disagreed with and not followed in Waldie v Cook (1988) 91 FLR 413; (1988) 8 MVR 191. In the event, the Full Court in Kroon overruled Virgo v Elding. His Honour referred to the case of R v Hinz [1972] Qd R 272 where the Court of Criminal Appeal of Queensland saw no fault in the direction to a jury that if they were left in reasonable doubt as to whether or not the accused went to sleep and that was the cause of the accident, the accused must be given the benefit of such doubt and that 'there is no evidence from which you could reasonably draw the inference that he would have had any prior warning of going to sleep'. In reasoning and concluding that in the case of Kroon the three convictions should be set aside and that there should be a new trial the learned Chief Justice observed [18] ‑ [19]:
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 driving without due care and may be driving in a manner dangerous to the public. If the driver does fall asleep and death or bodily injury results, the driving prior to the falling asleep is sufficiently contemporaneous with the death or bodily injury (McBride per Barwick CJ at 51) to be regarded as the cause of the death or bodily injury.
It is clear then that the question how sleep came upon an accused person and whether he had any premonition of it, so far from being irrelevant as held in Virgo v Elding, is the crucial issue in determining whether the period of conscious and voluntary driving which preceded the sleep amounted to the offence or offences charged. There must be very few cases in which a normal healthy person falls asleep at the wheel of a vehicle without any prior warning. Such warning may come in a number of ways. There will be cases in which the driver ought to be aware of the risk by reason of the length of time during which he has driven without rest, the conditions under which he has driven, the atmosphere in the cabin or his state of health. There will be cases in which he has direct warning from experiencing drowsiness. I should think that in almost every case a driver, before falling asleep, has a sensation of drowsiness at least for the brief period of time necessary to warn him to stop the vehicle. The cases must be rare in which a driver who falls asleep can be exonerated of driving without due care at least, in the moments preceding sleep.
The more difficult issue in this class of case is whether the 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 driver. The period of time during which the accused experienced drowsiness, whether proved by direct evidence or inferred from the behaviour of the vehicle or other factors, will be important. So will the degree of departure from prudent standards, involved in continuing to drive for a prolonged period without rest or in spite of conditions in the cabin or poor health. The added responsibility arising from the fact that the accused was in control of a heavy vehicle capable of causing great damage might be a very important factor. A careful summing up will direct the jury's attention to the factors in the case which require their consideration in determining the issue.
As will be seen, there was in the present case only at most relatively short attention given to the factors, if any, which may have led to the appellant having any premonition of impending sleep, or experiencing drowsiness and, consequently, less examination of this critical issue than was indeed required. This is not surprising, nor does it imply any oversight of material evidence by the learned magistrate. Rather, this lacuna appears to be a direct product of the almost complete absence of any evidence about the condition of the driver or factors which may have rendered it dangerous for him to continue to drive because of alleged drowsiness in the period of half an hour or more immediately before the accident. There was really no direct evidence about any of these matters except that it is apparent that the appellant had successfully maintained his route towards Subiaco from further south than Armadale, along Armadale Road and up the Freeway to the point of impact without any incident or ill effect and without attracting notice from any observer that his driving was in any way erratic or untoward. The conclusion that he fell asleep immediately before the accident and that this led to the collision with a parked truck is entirely based on inference and the issue of whether or not his manner or driving was dangerous before falling asleep (if that is indeed what he did) depends on further inferences. The bases for these and whether or not they could or should have been drawn are some of the most important issues arising on this appeal.
Such was the importance of the focus on the condition of the driver prior to the alleged episode of sleep that in Jiminez the Court observed that in a case based on tiredness, if there is material suggesting that the driver honestly believed on reasonable grounds that it was safe for him to drive, the jury must be instructed upon that issue. No such issue arose in the present case and no defence of honest and reasonable but mistaken belief in a stated fact was raised. However, the potential relevance of such an issue is further reinforcement of the point which the passages cited have already made, that it is the objective quality of the manner of driving including the condition of the driver before any episode of sleep that must be evaluated in determining whether or not the proof of driving in a manner dangerous to the public has been established.
The approach taken by the Supreme Court of South Australia in Kroon was approved and applied in Jiminez v The Queen (1992) 173 CLR 572. After examining part of the passages already cited from the reasons of King J in R v Kroon (578 ‑ 579) Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron said of that case:
As King CJ recognises, where the question is whether a driver falls asleep at the wheel is guilty of driving in a manner dangerous to the public, the relevant period of driving is that which immediately precedes his falling asleep. Not only must the period be sufficiently contemporaneous with the time of impact to satisfy the requirement of s 52A [of the Crimes Act 1900 (NSW)] but the driving during that period must be, in a practical sense, the cause of the impact and the death. The relevant period cannot be that during which the driver was asleep voluntarily. And for the reasons which have been given, if the driver's actions upon waking up amount to no more than an attempt to avoid an accident, it cannot be that period of driving.
Then, also in Jiminez (579 ‑ 580) their Honours said:
It follows that for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition that condition must be such that, as a matter of objective fact, his driving in that condition is a danger to the public. Various matters will be relevant in reaching such a conclusion. The period of the driving, the lighting conditions (including whether it was night or day) and the heating or ventilation of the vehicle are all relevant considerations. And, of course, it will be necessary to consider how tired the driver was. If there was a warning as to the onset of sleep that may be some evidence of the degree of his tiredness. And the period of driving before the accident and the amount of sleep that he had earlier had will also bear on the degree of his tiredness. But so far as 'driving in a manner dangerous' is concerned, the issue is not whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that, in the circumstances, his driving was a danger to the public. The various matters which bear on that question, and the way in which they bear on it, should be carefully drawn to the attention of the jury.
The result in Jiminez was that the driver's appeal was allowed, his conviction was quashed and a verdict of acquittal of the charge against him was entered.
It is also necessary to examine cases in which the distinction has been recognised between driving carelessly and driving in a manner which, objectively, having regard to all the circumstances, is dangerous to the public or to any person. One such case is Lyford v Wride [2009] WASC 106 where Blaxell J determined an appeal from a conviction for dangerous driving occasioning death following an accident at an intersection in a country area where the vision of approaching drivers to a crossroads where the collision occurred was obstructed by vegetation. Blaxell J referred to the following observations of the Court of Appeal in McPherson v Lucas [24]:
For the driving to be dangerous for the purpose of [s 59A] there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention (Jiminez v The Queen).
This led his Honour to observe at [20] that in the circumstances where it is said that the offence was committed as a result of the driver driving carelessly, the manner of driving must have been 'so inattentive' as to constitute a danger to the public in the sense referred to in McPherson. In Lyford v Wride the conviction of the appellant was quashed and, in observations which have some analogy in the present case, Blaxell J said that the magistrate in Mr Lyford's case had faced a difficult task in assessing the critical issue because the evidence given was not based on memory but largely upon assumption and hindsight and that there was no direct evidence of the exact circumstances which led to the collision. In the event, Blaxell J concluded that on the analysis of the evidence as a whole there was an alternative reasonable inference consistent with the proven facts, namely that Mr Lyford did not observe the intersection and could not reasonably have observed the intersection until it was too late to stop and that in view of the existence of competing inferences there was an error in preferring an inference adverse to the accused to one which was consistent with his innocence.
Even more recently in Lodge v Magorian [2012] WASCA 90; (2012) 60 MVR 408 McLure P, with the agreement of Buss and Mazza JJA, set aside a conviction on one charge of dangerous driving occasioning death following a successful prosecution appeal to a single judge from a verdict of acquittal of the trial magistrate. Lodge v Magorian was a case of a successful appeal against a conviction for dangerous driving causing death where the driver charged had not fallen asleep prior to the accident but where it was suggested that his driving was dangerous in the relevant sense because of the amount of alcohol found in his blood by subsequent analysis. McLure P examined the scope of application of the Road Traffic Act and the relevant authorities at [48] ‑ [56] and in doing so also examined the decisions in Jiminez and Kroon, McPherson v Lucas and McBride. After a consideration of the passage from the judgment in Jiminez at 579 the learned President said [50] ‑ [51]:
The relevant issue was whether the driver was so tired that, in the circumstances, his driving was a danger to the public (580). The High Court in Jiminez cited with approval the statement of King CJ in R v Kroon that, if a driver who knew or ought to know that there is a significant risk of falling asleep at the wheel continues to drive the vehicle, he is plainly driving without due care and may be driving in a manner dangerous to the public (18). However, on my reading of the joint judgment, it is not an element of the offence that the driver knew or ought to have known of the significant risk of falling asleep at the wheel. Rather, the state of and basis for the driver's knowledge may provide the foundation for a defence of honest and reasonable mistake (581 ‑ 583).
The important point to be drawn from Jiminez is that the cognitive condition of the driver can itself, without more, fall within the 'manner' of driving. If the state of tiredness of a driver can itself constitute dangerous driving then, putting statutory construction issues to one side, so too can alcohol intoxication. In both cases, it is a question of degree …
Further emphasis on the importance of an objective test of whether there has been some serious breach of the proper conduct of a vehicle on a highway ‑ a breach so serious as to be in reality and not speculatively potentially dangerous to others as constituting the hallmark of dangerous driving occasioning death appears from King v The Queen [2012] HCA 24; (2012) 86 ALJR 833; (2012) 288 ALR 565. A principal point in this case was the emphatic separation by the majority of the Court of the concepts of common law negligence or even criminal negligence or culpable negligence from the ingredients of the offence of dangerous driving causing death or grievous bodily harm. In this case the majority, French CJ, Crennan and Kiefel JJ again made reference with approval to McBride, observing [33]:
In Barwick CJ's discussion in McBride, of the term 'speed or in a manner dangerous to the public' the Chief Justice also said:
'This concept is in sharp contrast to the concept of negligence. The concept with which a 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 of damages caused thereby.' [emphasis added]
Their Honours then went on to observe [38]:
The ordinary meaning of 'dangerous' is '[f]raught with or causing danger; involving risk; perilous; hazardous; unsafe'. It describes, when applied to driving, a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver's own passengers. Having regard to the ordinary meaning of the word, its context in s 319 [Crimes Act 1958 (Vic)] and the purpose of s 319, as explained in the second reading speech, negligence is not a necessary element of dangerous driving causing death or serious injury. Negligence may and, in many if not most cases will, underlie dangerous driving. But a person may drive with care and skill and yet drive dangerously. It is not appropriate to treat dangerousness as covering an interval within the range of negligent driving which is of a lesser degree than driving which is 'grossly negligent' within the meaning of s 318(2)(b) of the Crimes Act. The offence created by s 319 nevertheless takes its place in a coherent hierarchy of offences relating to death or serious injury arising out of motor vehicle accidents. It is not necessary to that coherence that the term of the section be embellished by reading into them a requirement of a proof of some species of criminal negligence.
It also seems to be the case that the reciprocal of the example given by their Honours at [38] is also true, namely, that a person may drive a car carelessly but not dangerously, although in this instance because of the potential which a moving vehicle has for causing injury, that may very much be a matter of degree. One example, however, may be of a person driving a car with badly worn tyres but only travelling at a very slow speed in a non-built up area with little or no traffic. Another example might be driving, but at a low speed, in a heavy rainstorm with impaired visibility, or driving at night with a damaged and dysfunctional headlight after a minor accident. In these and all other cases the question of whether or not the manner of driving is dangerous in the requisite sense will require the application of the objective test to all the circumstances.
What those principles and authorities show unmistakably is that for an offence against s 59(1)(b) to be proved it must be established beyond reasonable doubt that the driver was at the time of the incident driving the vehicle in a manner dangerous to the public, a test to be applied and determined objectively as explained which, in a case such as the present involving an allegation that the driver fell asleep at the wheel, involves a consideration of all material aspects of his driving and conduct up to that point.
Findings at trial
The learned magistrate advanced two possible sequences of events leading to the accident as being the only conclusions which could be reached from the evidence and both of which, in his judgment, involved proof of dangerous driving by the appellant. The primary finding, and it would seem the preferred finding of the learned magistrate, was that the appellant had lost consciousness or alertness to a point that he had closed his eyes and was in some state of sleep (including a 'microsleep' episode) at the time of the collision and that the learned magistrate inferred that he had been driving while fatigued (see [161] and [165]). His Honour concluded that the appellant had been driving in a manner where the possibility of losing consciousness or alertness was real and substantial so giving rise to dangerousness [166].
The second scenario which his Honour considered as the only alternative conclusion which could be reached from the evidence was that during the period of time over some distance leading up to the point of collision he was driving without such attention that he could not have been keeping a proper lookout as he should have been doing, and that in this case that omission was more than a mere lack of care, it was a serious breach of the conduct of the vehicle on the road and was objectively dangerous driving [161], [170] and [171].
It is, therefore, necessary when considering the grounds of appeal to examine whether or not either of those conclusions was established beyond reasonable doubt by the evidence and, what is in effect a variation of the same question, whether or not there was an alternative inference available about the circumstances leading to the accident consistent with innocence which should have been preferred to either of those conclusions.
During the course of the trial the main emphasis of the case for the prosecution was that the appellant had fallen asleep at the wheel shortly before the impact. The manner in which the case was conducted by the prosecution as described in his Honour's reasons suggests that to a very large degree the alleged act of falling asleep was what made the manner of driving dangerous. This approach suffers, obviously, from the failure to concentrate on the manner of driving and condition of the driver prior to the alleged episode of sleep in order to determine whether the manner of driving was indeed dangerous. However, his Honour was aware of the need to focus on whether or not fatigue which, presumably, induced the episode of sleep which he found to have occurred was of a nature or degree as to render the manner of driving dangerous. As to this, as already remarked, the evidence was scant.
As already recorded, Mr Pike and his passenger left Denmark for Subiaco in Perth at about 11.20 pm, having stopped briefly in the town after leaving their camp site at Parry Beach shortly before. They then drove north, it would appear to Mount Barker, where they got on to Albany Highway, which they followed north as far as Armadale. They made two planned stops along the way, the first at a location which the appellant cannot remember and the second at the Williams township. On each of these occasions the appellant, and presumably the deceased, got out of the car, relieved themselves, had a smoke and drank some coffee, which they had been carrying with them in the car. The drive from Denmark to Perth took approximately five hours. As Williams is about 160 km south of Perth, and at the rate of travel for this journey, it must have been about two hours or a little less before the accident that the vehicle made the last planned rest stop in Williams. When driving from Williams towards Perth, some 30 or 40 km on, the Ford Fairlane struck a small kangaroo, which the evidence shows were prevalent in the area, especially at night. The appellant stopped the car, got out and inspected the damage to the left front fender and found that, fortuitously, it had only been a small animal that he had struck and that no significant damage had been done, that the headlights were still operating and the car could be driven.
They continued on and the undisputed evidence is that both the driver and the passenger were especially vigilant after that episode because of the risk of striking another kangaroo. They continued the journey without incident to the outskirts of the metropolitan area at Armadale, at that point passing into a built‑up suburban area. The route then taken, already described, was west along Armadale Road until the Kwinana Freeway and then north, heading for Perth and Subiaco.
The evidence is that on passing through Armadale the deceased said to the appellant that he then proposed to sleep for the rest of the journey and lay back in the passenger's seat to do so. Before going to sleep he engaged in a somewhat strange gesture of tweaking the appellant's chest near the nipple, which has been interpreted by the prosecution and by the learned magistrate as an abjuration to stay awake and alert for the remainder of the journey. Shortly afterwards the passenger went to sleep and remained sleeping from then on until the moment of impact, when he suffered the fatal injuries from which he died almost immediately. There is no evidence of any other conversation or action by the deceased after that last remark on passing through Armadale. The learned magistrate found, and there was no challenge to the finding, that the deceased was asleep from thereon.
In the statement made to the police a fortnight or so after the accident the appellant stated that his last recollection before the accident was driving past Leach Highway after getting on to the Freeway. The location of the major interchange of Kwinana Freeway and Leach Highway is a matter of which judicial notice can plainly be taken and it is about 8 or 9 km south of the site of this accident. It is clear, despite the absence of any direct evidence, that the appellant must have driven successfully east along Armadale Road to the intersection with Kwinana Freeway and then north past Leach Highway until the point of impact only some 200 m south of the northern part of the Freeway where Mill Point Road crosses and then joins Kwinana Freeway. There is no evidence of any observations of the appellant's manner of driving from Armadale Road onwards until the point of the fatal collision, but there is nothing to suggest that it was in any way erratic or untoward because of speed or because of the behaviour of the vehicle on the road or otherwise. However, his Honour's finding connotes that during this period accumulated fatigue was having its insidious effect and caused the appellant to fall asleep just before the impact.
Part of the case for the prosecution, and adopted by his Honour in the findings, was an inference that the last memory of the appellant being at the point where the vehicle passed Leach Highway suggested that he was experiencing fatigue or drowsiness from then on and that this condition accounted for his lack of memory of later events leading to the accident. However, I do not see how any weight can be placed on such a consideration or that such an inference can or should be drawn. The accident involving the deceased and the appellant clearly resulted in an extremely forceful impact between the Ford sedan and the stationary truck. The force of the impact clearly pushed the stationary vehicle, which presumably had its brakes on, forward and further off the road quite some distance, it would seem more than 7 metres.
The notes of the attending ambulance officer on the St John Ambulance patient care record, exhibit 22, which were put into evidence, without the author being called, contained passages including a history that the problem was that the appellant was the driver of a car 'which ran up the rear end of a park[ed] truck travelling at 100 km/h. Airbag deployed ? LOC [loss of consciousness]. The history included a recording of GCS 14 [Glasgow Coma Scale 14] and that 'the patient was confused as to time and place.'
The evidence of the first person on the scene, Mr Burton, which was not in any way challenged and whom his Honour has accepted as a reliable witness, was that he saw a person, later confirmed as the appellant, in the middle of the road waving his hands and yelling out, "Help" towards the passing traffic. Mr Burton stopped and went back to the accident scene, calling 000 in the process. When asked about the conduct of the appellant (ts 81) Mr Burton said that he was just really very upset and desperate for someone to help his mate and that he, Mr Burton, focused on trying to get him away from the busy road. Accordingly, it is clear that after the accident the appellant was able to get out of the car and he described to the police undoing his seatbelt and that of the deceased and trying to attend to him. He then obviously moved on to the road to flag down passing traffic for assistance and he was certainly ambulating and conscious when Mr Burton arrived and when the ambulance officer was present. Nevertheless, the magnitude of the impact, the query raised in the ambulance record about loss of consciousness, the description of the appellant as confused and disoriented in time and place, and his history of lack of memory of preceding events are all suggestive of some loss of consciousness and amnesia. At the very least, there is a reasonable probability that the lack of memory by the appellant after passing the interchange with Leach Highway onwards was due to injuries he suffered in the accident, including a short loss of consciousness. That being the case, I do not consider that it was justifiable for his Honour to conclude that the appellant's lack of memory of events immediately before the accident was attributable to fatigue or presaged any material tendency towards falling asleep or lapsing into moments of micro sleep.
Again there is no direct evidence of the speed of the Fairlane sedan immediately before the impact. There are, however, indications that the vehicle was travelling at 100 km per hour. These are that the ambulance officer recorded, exhibit 22, that the vehicle had been travelling at 100 km per hour, information which could not possibly have come from any source other than the appellant. The vehicle examination report prepared by police vehicle examiners of the wrecked Fairlane revealed that the cruise control mechanism had been set at 100 km per hour. Whether it was still operating at that setting at the point of impact could not be separately established. Furthermore, the speed limit on the Kwinana Freeway northbound from a considerable distance south until a point only about 40 m short of the point of impact was 100 km per hour although, at that point, it changed to 80 km per hour on the approaches to the traffic merging point and the following approaches to the Narrows Bridge.
His Honour did not address all this evidence directly but he noted the existence and the body of evidence that 'the appellant was driving with the cruise control set at 100 km per hour (in excess of the speed limit at least in the proximity of the are of the point of collision)' [160] and appears to have treated this as a finding that the appellant was travelling at 100 km per hour at the point of collision [170].
It is necessary, therefore, to consider whether the driving of the Ford Fairlane at that speed, either alone or in combination with other circumstances, established could contribute to a finding that the appellant was driving in a manner which was dangerous in all the circumstances. I do not consider that any such conclusion could be justified. Admittedly, the speed of the vehicle was in excess of the 80 km per hour speed limit which had begun a short distance before the impact, but the appellant was driving on a four‑lane freeway at a time when, only a few minutes later, Mr Burton described the traffic as light, with restricted access and no intersections, stop lights or other obstructions nearby. The appellant may have been guilty of driving in excess of the speed limit prevailing at that point, but on such a road and in such traffic conditions I do not consider that such a speed can or should be regarded as being objectively dangerous in the sense of constituting a danger to the public in all the circumstances or that it could be regarded 'in a real sense potentially dangerous to a human being 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' ‑ McBride v The Queen (49 ‑ 50) (Barwick CJ). Of course, if the appellant had been driving at that speed and in those circumstances when, objectively speaking, there was a real danger that he might fall asleep, and so lose control of the vehicle, that would be a completely different matter, because of the potential effects of progressive fatigue amounting to an objective danger but that is a question and an issue which is distinct from the significance of the actual speed itself.
Lighting on the Kwinana Freeway and in the vicinity of the accident scene
The learned magistrate does not appear to have made any express general finding about the light and artificial illumination along Kwinana Freeway near the accident scene. However, his Honour's finding [170] that such a collision should not happen if the appellant was driving with due attention and keeping a lookout clearly implies that the stationary truck was visible to an approaching motorist and could be seen in time for a driver to take any action necessary to avoid the collision. The accident happened at about 4.15 am on 14 October 2008, so one can be confident that it was quite dark at the time. That is certainly the evidence of the first witness on the scene, Mr Burton (ts 81) who said it was a pretty clear morning but it was dark. He was unable to say whether or not there were street lights on at the time.
Ms Billings, who drove along the Freeway and passed the truck just before the accident, also said that it was dark at the time (ts 24/2/11 page 70) but she recalled that the overhead lighting along the Freeway was on. The scale plans and photographs show that there was an elevated light on a pole on the western verge of the Freeway only about 10 m south of the apparent point of impact. Because he had no recollection of the events while driving along Kwinana Freeway before the accident, the appellant could provide no information to the police about the state of illumination.
It was also dark at 5.00 am when Sergeant Becker, the accident investigator, attended (ts 25/2/11 page 7). According to Sergeant Becker, all the street lighting along Kwinana Freeway to the approach of the crash scene was operative. The photographic exhibits of the accident scene and the damaged vehicles do not give a reliable indication of the state of light at the scene because they were taken an hour or so later and showed the effects of the approaching dawn. A number were taken with longer exposure times and larger aperture settings than usual to maximise the photographic effect of the limited light.
The truck which had been left parked on the side of the Freeway after its breakdown on the afternoon of 13 October 2008 at about 4.00 pm was white in colour. The photographs from the rear show a large doorway or aperture covering almost the whole of the rear end of the truck with a moveable roller door in an elevated position exposing about a third of the interior of the truck and revealing a dark region. The lower half of the rear door was covered by what appears to be a steel ramp or door capable of folding down from the floor to provide a platform. This had once been painted white but it was faded and discoloured with large grey patches. Covering the central lower region of that ramp was a sign with the name of the truck operator, 'West Coast Removals', and two telephone numbers against a white background. Underneath the hinged ramp and below the body of the truck were an assembly of tail lights or reflectors on both sides. Each assembly comprised of three lights or reflectors. On each side there was an amber hazard light which could be activated in a regular flashing mode and, presumably, the two other components on each side were reflectors and braking lights.
There was an issue at the trial over whether or not the amber hazard lights below the rear of the truck were flashing regularly before the accident. Inspector Davies, who cycled south on the cycle path at 5.20 pm the previous afternoon, saw the truck but did not notice any flashing lights. Neither Mrs Billings nor Mr Burrows, who drove north up the Freeway, respectively, just before and after the accident, saw or remembered seeing any flashing hazard light or lights on the truck. Sergeant Becker, who arrived at the accident scene after having been alerted to the event, did not notice any flashing hazard lights at the time either. Subsequent detailed examination of the damaged truck by the police vehicle inspector revealed that the hazard light at the rear right-hand side had been smashed by the impact but that the circuitry was such that current could still flow to the terminals in the globe socket on the right-hand side. The hazard light on the rear left of the vehicle and the other components at that point had not been damaged in the accident and again current flowed at those terminals and the globe responded. The vehicle examiner found that, at the time of the examination, the battery was incapable of illuminating the hazard lights. However, on the introduction of another and adequate electric power source, the hazard light on the left-hand side was operational and, as already noted, current flowed to the terminals on the broken assembly on the right-hand side.
Some of the photographs of the rear of the truck taken after the accident appear to show the left rear hazard light illuminated. A video‑tape of the accident scene includes a sequence showing the rear of the truck. This shows the left rear light operational but flashing only slowly and weakly, indicating that at that time at least there must have still been some power left in the truck battery. There was evidence that when the truck was left at the scene the previous afternoon at about 4 o'clock the driver had been told to leave the vehicle with the hazard lights flashing and said that he had done so. The vehicle inspector gave it as his opinion that if the battery of the truck had been in reasonable condition at the time the vehicle was left with the hazard lights flashing, he would not have expected it to have gone flat in the period of about 12 hours between then and the time of the accident, and that he would have expected, therefore, it to have had sufficient light to keep the lights flashing. There were other indications to suggest that the truck was, generally speaking, in a poor mechanical condition and any inference that the battery had been in reasonable condition at the time the vehicle had been left may well be regarded as questionable.
The finding of the learned magistrate about these matters [156] is 'although dark to some extent, the truck was white in colour and physically large and had hazard lights flashing (even though possibly not brightly) there was nothing in the operation of the Ford sedan's headlights that would have meant that light would not have shone on to or towards the truck as the Ford sedan approached. In my assessment, the truck was there to be seen if the accused was conscious and in fact keeping a proper look.'
However, that finding does not reflect, or to my mind accommodate sufficiently, unchallenged evidence from two independent laypersons whom the learned magistrate obviously accepted as truthful and reliable. Ms Billings, who, as already mentioned, drove past the truck just shortly before the impact, did not see any lights on the truck and only perceived something ahead of her, without being able to identify what it was, about 100 m away. From that distance, she was aware that it was a truck but it was vague in outline (ts 71) and it was only when she got about 30 m away that she saw how it was actually positioned. She said that the right-hand rear edge of the truck was over the white line (between the most westerly lane of the Freeway and the emergency lane). She also said that the body of the truck, not necessarily the tyres, but the body, was over the white line. According to her, she had to swerve at the last moment to avoid colliding with the right rear edge of the truck. She was definite that if she had remained entirely within her lane she would have hit the truck if she had not swerved. She confirmed that at the point where she got within 30 m of the truck it was obvious that the vehicle had encroached into her lane.
Similarly, Mr Burton, the first at the scene and the driver who had been flagged down by the appellant, confirmed that he did not notice the truck until he was pretty close. His statement to the police, which he confirmed in cross‑examination, included the passage:
I would have to say the truck was quite difficult to see. I noticed at the time there were no lights on the truck. I can't remember if the car had any lights on it.
He also said that he was pretty close to the vehicle before he could make out that it was, in fact, a truck. He had been focused on the appellant on the road and was about 30 m away before he could make out that the vehicle was a truck. He also referred to a slight curve in the road which shortened the distance from which he could actually see the truck (ts 24/2/11 page 83).
This evidence is important because it demonstrates that the only contemporary observers, both independent and reliable, did not see any illumination, whether reflectors, lights or flashing hazard lights as they approached and passed the truck and that, in Ms Billings' case, she could first make out an indefinite shape of a truck from about 100 yards but it was not until she was 30 m away that she could clearly see that it was a truck and that it had encroached on to the roadway and necessitated that she swerve to avoid a collision. Both drivers said that conditions were dark but that the night was clear. Mr Burton expressly said that the truck was difficult to see.
The only concessions to this evidence in the reasons of the learned magistrate are at [149] ‑ [153]. In those passages, his Honour mentioned that Ms Billings' memory is that she may only have swerved further to the right in the lane she was travelling and that it was the body of the truck as opposed to the tyres which was over the white line. His Honour found that the extent of the protrusion of the body of the truck into the laneway of the Freeway could not be reliably determined on the evidence but that it must have been limited to the right rear side or end and at the moment of impact all the tyres of the truck were standing in the emergency lane. With regard to the hazard lights, his Honour found that the lights on the truck were operative in the time leading up to the collision but that the rate at which the hazard lights flashed and the brightness of them might have been affected by the extent of the charge left in the truck batteries, and that this diminution in brightness and frequency may in part account for why Ms Billings and Mr Burton did not notice them.
His Honour referred to the photographic exhibits 16(15) and 16(16) as showing that the street lights in the closest vicinity to the truck did not appear to be on or glowing whereas other more distant and more southerly lights on the Freeway did appear to be on. At [154] his Honour mentioned that the prosecution adduced no evidence to explain why some street lights may have been on while others appeared to be off in those photographs and that he would therefore proceed on the basis that the street lights in the immediate vicinity of the truck were not on. Nevertheless, he found that the truck as an object (based on the observation of Ms Billings) was visible from about 100 m away and visible as a truck from 30 m away.
Having regard to the importance of the visibility of the hazard presented by the truck to the issue of whether or not the evidence established that the appellant's manner of driving was dangerous, I consider that further findings on this aspect of the case should have been made. This evidence warranted, indeed in my view compelled, a finding that no hazard lights or other reflections from the rear of the truck were seen by the two independent witnesses who passed that way just before and after the accident and who must be presumed to have been competent and reasonably alert drivers keeping a proper lookout. Although the shape of the truck on the side of the road was apparently visible at first from about 100 m away, it was not until a driver approached within 30 m that it was clearly identifiable as a truck and it could be seen that a portion of the rear of the truck obtruded into the leftmost laneway, necessitating any driver in that laneway to swerve, to some unascertained extent, to avoid collision. I also consider that their evidence warranted a specific finding that, in all the circumstances, the existence and location of the truck was difficult to see until a driver was close upon it, whereupon some evasive manoeuvre became suddenly essential.
The learned magistrate at [150] made a finding that the right rear tyres of the truck must have been within the confines of the emergency lane because otherwise the truck would plainly have been a traffic hazard to other drivers passing travelling north. His Honour observed that there was a very high probability, in such a case, that the position of the truck would have attracted some public complaint to the police, yet the evidence established that no emergency telephone call of such a complaint had been received by the police communications centre regarding any vehicle on the Freeway that afternoon, evening or early morning, and that this would seem to be unlikely in view of the high use of Kwinana Freeway by many motorists had the truck presented as a traffic hazard. The reference to the evidence of enquiries made of the police communications centre about the absence of calls from the public with complaints about the presence of the truck on the Freeway is not without difficulty. A statement was tendered from a Ms Julie Ottaviano from the police communications centre that on 13 October 2009 she was requested by Sergeant Becker to search the police telephone records for any calls about a truck broken down on the Freeway between 2 pm, Tuesday, 13 October 2009 and 4.30 am on Wednesday, 14 October 2009. She made a search of the police telephone records but was unable to locate any triple zero or general call regarding a vehicle on the Freeway on those dates. However, the truck broke down on 13 October 2008 and remained here overnight and into the early morning of 14 October 2008 not 2009 as recorded by the report of Ms Ottaviano. His Honour referred to this as being an obvious mistake [82] and a typographical error and said that it was not contested in closing argument that her statement was intended to be a reference to 2008 and not to 2009 and that this was so especially in the light of the date of the request made by Sergeant Becker which was, by his evidence, shown to have been made on 14 October 2008, that is after the accident. Nevertheless, the discrepancies remain and the assumption that they were mistaken is less reassuring when it is appreciated that Sergeant Becker's request could have been made at the earliest on 14 October 2008 and not on 13 October 2008 as any simple adjustment to the year specified in Ms Ottaviano's statement to take account of the assumed typographical error would imply. Although the point was not taken by counsel for the appellant at the trial and seems to have been conceded, it has been raised by the appellant in his written submissions and it leaves a disconcerting uncertainty.
It is, of course, well settled that an appellant is bound by tactical decisions and other conduct in the court made by him or on his behalf during the conduct of his trial even if these should subsequently turn out to appear disadvantageous. This is the case also when such tactical decisions or approaches are taken by a legal representative on his behalf ‑ TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [16]. If there had been any suggestion that there was doubt about the accuracy of the assumed dates in the statement of evidence of Ms Julie Ottaviano (exhibit 5) and whether or not it referred to enquiries about telephone calls to the police system in October 2009 rather than October 2008, that should have been raised and dealt with at the trial. That is a matter which could readily have been determined by further enquiry and if it had turned out that the enquiry about reports from the public about a possible hazard on the Freeway had been made with respect to events in 2009 rather than 2008, then there may have been an opportunity to cure the mistake by making further enquiries or checking the records for the earlier year. For all this court can tell, there may have been such enquiries conducted informally leading to assurances given to counsel which resulted in the announcement that it was non‑contentious that a mistake had been made. However, none of that appears.
In the circumstances, I do not consider that this uncertainty can entirely be put aside when, in an appeal like this, it is necessary to consider all the evidence afresh to determine whether the verdict is unsafe or unsatisfactory ‑ see Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 and Martinez v The State of Western Australia [2007] WASCA 143. In the present circumstances, however, the evidence about the absence of complaints to the police from members of the public about a possible hazard posed by a broken down truck on the Freeway is, at the most, only rather tenuous circumstantial evidence as to whether or not the truck did pose a hazard. There was direct eyewitness evidence of Ms Billings and while the exact point of the collision cannot be identified precisely from the subsequent position of the vehicles on the road, it is clear that the right rear body of the truck did protrude on to the road to some extent. That itself made it hazard to traffic moving on what all drivers would expect to be an unobstructed freeway.
As the issue for consideration, therefore, is limited to the magnitude of the hazard, the question of responses from members of the public to the police reporting such a hazard would be quite inconclusive, even if admissible, without the actual callers who observed the situation giving evidence at the trial. In such circumstances, I do not consider that it was open to his Honour to treat the evidence about the absence of complaints to the police communications centre reporting a hazard on those days, with or without the uncertainty about the date which was the subject of the enquiry, as probative of the degree of hazard which, on direct evidence, was shown to have existed.
The point of collision and subsequent movement of the vehicles
The learned magistrate did not make any finding as to the precise point of impact between the two vehicles on the Freeway. There was detailed evidence, photographs and measurements at the accident scene and a large plan (exhibit 6) upon which all material details were recorded. The investigating officer, Sergeant Becker, was unable to state specifically the point of impact. His most comprehensive description of the impact site and the mechanism of the collision, made with regard to features marked on exhibit 6, appears at transcript 25/2/11 page 18, where Sergeant Becker said:
I concluded that the vehicle has come in behind the truck. The front left of the car has hit the back right of the truck, and at some point, the forces acting on the car have prevented it from moving forward, and so it's gone under the truck to a certain extent. It's hit, and then as a result of that strike, it's actually rotated around. It's quite likely because of the lack of markings ... lack of markings on the inside left lane would indicate that the back of the car actually raised up during that rotation process, because there is no solid black mark that leads from there straight to the car which you would get if the car remained on the ground and slid around.
This and other evidence relating to the accident scene needs to be considered in the light of other evidence and findings. First, the resting positions of the truck and the damaged car as shown on exhibit 6 were clearly not the point of impact. Both vehicles moved on quite some distance from the point of collision because of the forces involved. The extent of that movement is uncertain but, taking the evidence of Sergeant Becker, it was at least 7 m if not more. Having regard to the weight of the truck, shown in the vehicle examiner's report, and that it was parked with its brakes on, it gives some indication of the magnitude of the force involved. The tare weight of the Ford Fairlane was 1,597 kg. The Hino truck had a tare weight of 5,040 kg.
Second, there were no skid marks anywhere on the Freeway to show that the Ford Fairlane had skidded under braking. This was not surprising because it was fitted with an ABS system (automatic braking system) which would automatically prevent the wheels from locking, and thus skidding, under heavy braking. Nevertheless, Sergeant Becker offered the opinion that if the brakes on the Ford Fairlane had been activated heavily so as to cause the operation of the ABS system, he would still expect there to have been signs of 'ghosting' on the road surface, indicating heavy braking but not skidding. None was found.
Third, the only tyre on the Ford Fairlane which suffered severe damage, deflated and came off the rim was the left front wheel. All three other tyres remained inflated and attached to their respective rims on that vehicle. This is significant because there was a fresh gouge mark found on the surface of the Freeway which, in Sergeant Becker's opinion, was caused by the rim of the wheel on the Fairlane after the tyre had been stripped off in the force of the collision. These gouges were slightly to the west of the white line dividing the left lane of the Freeway and the emergency lane. A tyre mark (not a gouge mark) was found towards the centre of the left vehicle lane of the Freeway slightly longer and in advance of the gouge mark.
Fourth, the worst of the very extensive damage to the Ford Fairlane was to the front left passenger compartment, windscreen, door and roof area which Sergeant Becker concluded had gone under the right rear end of the truck. That corresponded to the area of the most severe damage to the truck.
This evidence led to a finding by his Honour, 160(2):
The Ford sedan to some extent travelled into the emergency lane or in any event into the rear of the stationary truck.
This is of considerable potential significance because, taken with his Honour's ultimate conclusions, it is capable of giving rise to an implication that before the collision the Ford sedan had veered over to the left of the first laneway of the Freeway and had crossed into, if only slightly, the emergency lane. Although his Honour has made no specific finding in this regard, such a construction of the sequence of events would of itself provide a basis for an inference that just before the accident the appellant had fallen asleep or lapsed into a micro sleep so that the course of the vehicle began to deviate towards the left. The question which therefore arises is whether or not there is any basis for such an assumed inference or whether, rather, the evidence is more consistent with a view that the Ford Fairlane continued to drive directly north on the Freeway without deviating to the left before the collision.
It is accepted that the mechanism of the collision did not involve the Ford Fairlane colliding directly with the rear of the truck when travelling on the same or a parallel axis. Among the exhibits is a diagram, exhibit 21.3, which was prepared, it would seem for the appellant, and put to Sergeant Becker in cross-examination. Sergeant Becker accepted that this indicated the probable direction of impact between the two vehicles at the point of the collision but said that it did not reveal any details about their orientation with respect to the line of the Freeway because no reference marks to the Freeway or topography were depicted on that diagram. It may be necessary to view exhibit 21.3 to understand the following explanation and, for that reason, a reproduction of it appears as an appendix to these reasons. The point of the diagram is to show that whatever may be its true orientation, the axis of the truck was at quite a different angle to the axis of the vehicle and its direction of travel in that the axis of the truck was at an angle well to the left. Assuming a fictional compass rose if the axis of travel of the Ford Fairlane was 360 degrees (north) then the axis of the truck as shown on this diagram would appear to be approximately 344 degrees, that is, approximately a 16 degrees angle to the west. Such an approach and comparative orientation of the two vehicles would account for the relative minor damage to the front and bonnet of the Ford Fairlane but the very severe damage to the left front wheel and left windscreen side doorway and passenger compartment. It would also provide an explanation of how the major impact was probably caused to the left front wheel of the Fairlane after it slid under the rear cabin of the truck and eventually struck the double wheel base on the right rear of that vehicle. It also would explain how the vehicle then rotated or pivoted anti‑clockwise about its left front wheel, eventually coming to rest facing south‑west against the front portion of the truck as shown in exhibit 6 and at a point where both vehicles had moved on a significant distance from the point of the collision.
This orientation of the truck is also consistent with the evidence of the witnesses who saw it on the afternoon when it was left broken down on the roadside ‑ Travis Beswick and Joshua Pinochet, whose evidence his Honour was not prepared to accept without other confirmation because of the roles they had taken in concealing the identity of the person who had actually driven the truck when it broke down. On the other hand, another police officer, Inspector Davies, already mentioned, had passed the truck while cycling south on the cycle pathway to the west of the Freeway and, as far as he was concerned, the truck was positioned straight in the emergency lane. However, that version of the position of the truck is not consistent with the evidence of Ms Billings, who unhesitatingly said that the right rear of the truck was projecting into the Freeway lane in which she was driving notwithstanding that the wheels were in the emergency lane, clearly indicating that it was not parked straight or with its axis parallel to the direction of the Freeway.
Inspector Davies was riding his bicycle south along the footpath/cycle path on the western side of the boundary fence of the Freeway at about 5.20 pm on the afternoon on 13 October 2008. He estimates that he was travelling at about 25 km per hour and he noticed what was subsequently confirmed to be the broken down truck ahead on his left parked evidently, as he thought, in the emergency lane of the Freeway. He noted the name 'West Coast Removals' on the left side of the truck as he rode past and thought that the vehicle was parked in a straight alignment in the emergency lane. To some extent, he deduced his recall of this observation by saying that if he had thought it was a danger to traffic on the Freeway he would have used his mobile phone to ring the police to have somebody attend and deal with the situation. Significantly, Inspector Davies did not look back and view the truck from the rear as he passed it. It would seem to follow from this that he was in no position to see and did not see whether or not the right rear of the truck was protruding into the left-hand carriageway of the Freeway as was described by Ms Billings or whether it was at an angle to the axis of the highway as the nature of the damage to both vehicles implies and which Sergeant Becker agreed was consistent with the observed damage on both vehicles, the marks on the roadway and the final position of both vehicles after the accident. In these circumstances, there is no reasonable basis to accept the evidence of Inspector Davies about the position of the truck before the accident in preference to that of Ms Billings or other evidence which shows or implies that the vehicle was protruding on to the left carriageway.
From all this, I consider that an inference should be drawn, or at the very least that there is a reasonable inference capable of being drawn, that at the point where the green gouge mark shown on exhibit 6 is located the bonnet of the Fairlane had already gone under the right rear of the truck and that the gouge mark was made after the left front wheel had collided with the right rear wheel base of the truck, stripping off the tyre, leaving the rim to gouge the road surface as both vehicles continued forward under the force of the collision.
Although this point can only have been a very small fraction of a second after the bonnet of the Fairlane hit the rear of the truck, suffering comparatively minor damage until the vehicle struck the truck wheel base, it would mean that the force of the impact had begun to slow the left side of the Ford, beginning the deviation and the rotational pivot which rapidly progressed upon the impact with the truck wheel base. That in turn leads to another inference which I consider should be drawn from the evidence and which, at any rate, is certainly a reasonable inference open on the evidence, namely, that the deviation of the Ford sedan into the emergency lane did not commence until after the first impact and then was a product of the dynamics of the collision itself.
That leaves open as a conclusion consistent with the evidence that, until the point of impact, the Ford sedan continued travelling in the left lane of the Freeway directly in line with the axis of the roadway and without deviating into the emergency lane until after the first contact with the stationary truck. I do not consider that the availability of that inference or conclusion is diminished by the possibility that although travelling north and in the same axis as the Freeway, the Ford Fairlane may have been travelling close to, but not over, the dividing white line between the left lane and the emergency lane. It would mean that, consistently with the evidence of Ms Billings, a collision between the Fairlane and the right rear end of the truck would be inevitable unless, like Ms Billings, the appellant had seen the truck in sufficient time to react and take evasive action by swerving to the right. Significantly, this reveals the availability of a distinctly reasonable inference that, without going to sleep, the appellant did not see the hazard posed by the truck looming ahead in time to take any evasive action or to avoid the collision. That leaves the issue of whether or not, in all the circumstances, he was, for any combination of reasons, failing to keep a proper lookout to such an extent as to make his manner of driving dangerous. It will be necessary to return to that issue.
Does the evidence establish that the appellant fell asleep at the wheel?
The issue posed by this question involves a consideration of the entire evidence at the trial and, importantly, a consideration of whether or not any inference that the appellant fell asleep at the wheel can be taken from all the evidence, not just from one source or from a selection of some of the sources. The evidence concerning visibility of the scene, the location of the broken down truck on the side of the Freeway and markings on the road indicating the nature and dynamics of the collision have already been examined. That examination has revealed that in relation to each of those areas, while an inference that the driver fell asleep may be available, other inferences to the contrary are also available on any reasonable approach so that, if that evidence already examined were to be taken alone, an adverse inference against the appellant should not have been drawn consistently with the onus and burden of proof. However, there are more features of the case which require examination and evaluation not just by themselves but in conjunction with all the evidence: Chamberlain v The Queen (No 2) [15] ‑ [16].
Another factor relied upon by the learned magistrate were statements either by or attributed to the appellant himself. The first in time was a note appearing on exhibit 2, the St John Ambulance patient care record, evidently made by the attending paramedic which reads in part:
22y.♂. male Driver of a car which run up the rear end of a park truck. Travelling 100 km/h. airbag deployed. ? L.O.C. Pt state may have fell asleep. Pt state neck pain. Pt ambulated post accident, Pt denies any pin or needle or neuro ↓ to limbs. GCS 14, confused in time and place …
Reliance was placed by his Honour on the passage 'Pt state may have fell asleep' as an explanation for the accident or at least as an acknowledgement that he had been driving while significantly fatigued. A difficulty with this is that the author of the ambulance report was not called to give evidence, the document simply being tendered by consent. It is evident that much of the information recorded must have come from the ambulance officer's own observations of the appellant, assisted only to some degree, by responses to questions.
The speed at which the car had been driving could only have been known to him. The observations include the statement that he was confused and disoriented in time and place. Other evidence, already noticed, is to the effect that he had no memory of events before the accident after the vehicle had crossed the interchange of Kwinana Freeway and Leach Highway, which is suggestive of amnesia. There was no direct evidence of the question asked by the ambulance officer which prompted him to observe that the patient said he may have fallen asleep. Was it a leading question? Was it speculation? Was there any uncertainty associated with the response? If the appellant simply did not know or could not remember what had happened, how informative is that response and was anything else said by the appellant which may have qualified it? Such a remark if made by the appellant at the time would obviously have been relevant and admissible as a potential admission but how much significance could be attributed to it would depend upon a consideration of the questions which I have posed and to which no answers are now possible. If reliance is to be placed on that remark, it is unfortunate that the ambulance officer was not called to give oral evidence and cross-examined because only if that procedure had been followed could a proper decision be made as to the weight to be attributed to that response, if indeed that is all that was said. As it is, such a response which has not been the subject of investigation by cross‑examination made by a person who is noted to have been confused and disoriented at the time and who, by the date of the trial, was accepted not to have any memory of the events immediately leading to the accident, does not provide a strong foundation for a finding that he was asleep at the wheel.
The second statement by the appellant relied upon by his Honour as contributing to the conclusion that he fell asleep because of driving while fatigued was referred to in his Honour's reasons at [117] where in a video record of interview while questioned by the police officer there appears the following response:
QOkay, um, with, prior to you driving, how were you - prior to the collision, how were you feeling in respect to your driving.
AWell, that's the thing, I was - like, I have nodded off - or come close, coz I've done a few trips, and yet - or straight away your eyes are wide open, and shish, I've had to pull over a couple of times, but most of the time I've been right to stop and walk, and keep going, and I've always remembered it, every time, like kept going to sleep, like every time I've always remembered, like, dozing off and - just waking up, but - I don't know what the hell happened this time.
QDid ya have any - were you feeling tired at all before.
ANo, that's the thing, no, not since the kangaroo. (emphasis added)
QYeh. Did you have any dozing off periods prior to the crash?
ANa, na, not at all, I was wide awake.
However, later, at [137] his Honour returns to that episode and records that, in particular the appellant 'stated not feeling tired "since the kangaroo", not dozing off prior to the collision and was "wide awake". It is apparent that prior to hitting the kangaroo he had been feeling tired. To the extent that the accused denies that he was tired, those self serving statements were not made on oath or tested by cross‑examination and I give those statements no weight: Mule v The Queen [2005] HCA 49; (2004) 221 ALR 85; (2005) 156 A Crim R 203.'
Significantly, however, his Honour does not identify what evidence he relied upon for drawing the conclusion that prior to hitting the kangaroo the appellant had been feeling tired. It is possible that his Honour may, by implication, have been referring to the appellant's own statement that in the course of the journey he had stopped on two prior occasions, drank coffee, walked around, relieved himself and refreshed himself as implying that he had been tired. It is also possible that his Honour may have inferred that, because of the late hour and the fact that the appellant had not slept since 10 am on the morning of 13 October 2008, that raises an inference that by the time of the accident or during the journey he would have felt tired. However one construes the statements in the video record of interview, including those just cited, they amount to a positive denial by the accused that he was feeling tired. Nor should it be concluded that the statement contains an implication that before the vehicle struck the kangaroo north of Williams he had been feeling tired. The ordinary meaning and context of the statement is entirely consistent with an assurance that since hitting the kangaroo the driver had been especially vigilant ‑ a reaction which a reasonable observer would expect. As for the suggestion that there is other evidence showing that he had been driving tired before the collision with the kangaroo, I do not consider that such a conclusion should be drawn from the proved facts.
An equally consistent conclusion, and a reasonable inference open to be drawn, was that the appellant, knowing that he was driving through the night on a journey of about five hours, took normal precautions to stop, rest, revive and refresh himself every two hours or so and to drink coffee as a stimulant to counteract any natural disposition towards fatigue. Any reasonable driver contemplating such a journey at night could be expected to take like precautions and the fact that those precautions were taken does not support an adverse conclusion that the appellant had been driving while unduly tired.
There is then the episode of the deceased tweaking the appellant at or near his left nipple just as the vehicle passed through Armadale as the deceased was settling down to go to sleep. At [165] his Honour said:
It is also very significant that Mr Rodger had 'squeezed' [his] nipple after crossing over and into Armadale Road and I infer that that was done to physically stimulate the accused to remain alert while driving. The accused's alertness is also revealed by his lack of recollection other than the Leach Highway sign prior to waking up after the collision.
I have already indicated that the accused's lack of memory of what has happened since passing Leach Highway is reasonably explicable by any loss of consciousness and/or the effect of the impact producing amnesia. The squeezing by the deceased of the accused's nipple seems to be an odd circumstance which might have been attributable to the purpose inferred by his Honour or might not. If it were, it still would provide no information about the appellant's alertness at the time. It may have been intended by the deceased as a precaution but whether it was necessary or not cannot be determined. I consider that that is an equivocal and inconclusive fact and not one which is capable of supporting an inference that the appellant was in danger of falling asleep at that point or at any other.
Then there is the observation by the learned magistrate that [165]:
While travelling he did not have the air conditioner on and occasionally had a window open which I infer meant limited air flowing into the Ford sedan that might [I] have stimulated him to remain awake.
However, the finding of the vehicle inspector, accepted by his Honour at [124] (a)(1) was that:
The heater controls (climatic air) was found in the 'fresh/demist/manual position' with a setting of '21' degrees, booster fan (10 speeds) in the 'four' speed position and the booster fan operated when tested;
In those circumstances, there does not appear to be any place for an inference that the ambient atmosphere with the cabin of the Ford sedan was unduly warm, or that the air was stale or the atmosphere soporific. On any view, those would be normal comfortable positions with exterior air being blown into the cabin at a constant rate and temperature. If, in addition, the driver's window was partially open from time to time, there does not appear to be any firm basis upon which to conclude that the atmosphere within the car became stale or such as would be likely to induce sleep.
Expert opinion evidence
Reference has already been made to the evidence of Professor Hartley on the likely effects of fatigue or sleep deprivation. I have already rejected the submissions and that part of ground 4 of the proposed grounds of appeal which contend that this evidence should not have been received or was not admissible. His Honour accepted the following points from the evidence of opinion by Professor Hartley that:
•About one‑third of crashes are fatigue related and fatigue ranks equally with speeding, alcohol and lack of seatbelts as one of the major causes of road trauma.
•It is very rare to have a single vehicle crash during the day and studies show that what is termed the 'circadian' profile of loss of alertness that single vehicle crashes begin to rise around midnight and peak at around 4.00 ‑ 5.00 in the morning and then go back to normal with a small number of single vehicle crashes about 9 o'clock in the morning. The high risk or crashes in pre‑dawn hours where only one driver is responsible coincides with when research shows a person's alertness is lowest and sleepiness is greatest.
The evidence of Professor Hartley, amended once he had been provided with the corrected information about the time the appellant woke up on the morning of 13 October 2008, was that driving after a period of being awake continuously for 18 hours was equivalent to the effects of driving with a blood alcohol content of 0.05%. However, that of itself does not take the matter very far. It was not contended that drivers with a blood alcohol content of 0.05% are prone to fall asleep at the wheel. If it was being suggested that such drivers' judgment of speed, distance, reaction time and like responses to emergency were significantly blunted or diminished that was not expressly advanced. As the learned magistrate observed, the studies relied upon by Professor Hartley for his report concerned truck crashes in the USA and represented mean data and findings expressed by reference to probabilities and statistical outcomes. As with all statistical evidence, this is useful when dealing with large numbers or populations and when formulating policy and appropriate supervisory norms for a population at large. However, such statistics are of limited utility when dealing with any individual case. This is because there is no way of knowing where the individual case may lie on the distribution of observations or probabilities from which the statistical mean or other parameter is drawn. Such statistics can produce guides but, in a case such as the present, the known individual facts are the only objective criteria upon which a decision can be made. The decision in Lodge v Magorian is an emphatic reminder that even while a driver may have a blood alcohol content of at least 0.12% at the time of the incident, that does not mean that, in all the circumstances, he was driving dangerously if, otherwise, the established facts show that there was no reason to conclude 'that a (sober) driver in the appellant's position on the road should have moderated their driving behaviour …' [57] (McLure P). In my view, the evidence of Professor Hartley amounted to a hypothesis that the appellant could have fallen asleep at the wheel because of the various factors mentioned but nothing in his evidence by itself was capable of proving that he did. The onus was on the prosecution to prove this and this hypothesis was another circumstance for consideration but was itself incapable of establishing that allegation.
Review of the evidence
In order to determine whether the verdict of his Honour was unsafe or unsatisfactory it is necessary to consider whether it was open on the evidence at the trial for the court to be satisfied beyond reasonable doubt that the accused was guilty. This must be done by the appellate court reviewing the whole of the record of the trial and making its own independent assessment of the evidence and determining whether, making due allowance for natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence.
The basic objective facts are that the exact cause of this accident is unknown and that there is no direct evidence to establish that the appellant fell asleep or failed to keep a proper lookout. Some conclusions can be drawn about the probable point of impact between the Ford sedan and the broken down Hino truck on the side of the Freeway but the exact point of the initial impact remains unknown. Clearly, however, it was, at the least, a small distance south of the gouges on the roadway marked on exhibit 6. It is known, and the magistrate found, that the rear body of the truck (but not its rear wheels) was protruding into the left vehicle lane of the Freeway in its stationary position. The finding by the learned magistrate that the Ford Fairlane veered into the emergency lane across the white line does not determine whether or not that was a result of the impact or whether the veering occurred before the collision. There was no direct evidence on that issue but the evidence is capable of showing that the Ford Fairlane remained wholly in the left lane until the impact.
Despite his Honour's finding that the truck was there to be seen, the evidence of two independent witnesses who drove past just before and after the accident was to the effect that although something could be seen from about 100 m away, it was not until each driver was only about 30 m away that he or she could see that it was a truck. Neither of these drivers noticed any flashing hazard lights, tail lights, reflection or other illumination coming from the truck. Neither did Sergeant Becker when he arrived on the scene afterwards. Despite the finding that the hazard lights were flashing, but slowly and at reduced intensity because of a low battery, it is evident that the truck was hard to see. There is no reason not to accept the evidence of Ms Billings that it was a hazard and that had she not swerved in time she would probably have collided with it.
No alcohol or drugs were detected on the appellant. He had slept well the night before, rising only at 10 am. He had had a quiet day at the beach fishing and a good meal before leaving Denmark at about 11.20 pm. He and the deceased drove through the night ‑ an enterprise inevitably involving an elevation of risk and hazards but not one that ordinary reasonable drivers decline to take. As prudence demanded, he had two intentional stops on the drive north, the first at some unidentified spot and the second at Williams. On each occasion he got out of the car, walked around, and drank coffee. Driving north from Williams he struck a small kangaroo after 30 or 40 km ‑ an eventuality all too common for those driving on country roads in this State at night. No major damage was done, the vehicle was still roadworthy and, after stopping, the appellant drove on without further incident as far as Armadale. There is no reason to doubt his assertion that he and the deceased were extra vigilant after the episode with the kangaroo.
From then on, little is known except the route of the journey and the fact that the deceased settled down and went to sleep shortly after passing through Armadale, when he engaged in the strange gesture with the appellant. The appellant's last recollection before the accident is of passing Leach Highway but, for reasons given, his lack of memory of events from then on does not, in all the circumstances, provide a basis which must lead to an adverse inference about his conduct, alertness, vigilance or whether he went to sleep. All else is equivocal and inconclusive. The exact cause of the accident still remains unknown. The possibility of the appellant having fallen asleep remains just that ‑ a possibility or a hypothesis. Another reasonably tenable hypothesis is that the appellant was caught in the same dilemma as Ms Billings and did not see the truck in time to take any evasive action. It cannot be concluded that he did not brake at all, because of the existence of the ABS braking system, notwithstanding that there were no 'ghost' tyre marks discovered on the road surface.
Assuming the appellant did fall asleep at the wheel
However, if, contrary to the conclusions which I have already reached, it were to be assumed that an inference that the appellant fell asleep at the wheel could be drawn and should be drawn, that does not necessarily mean that the appellant's manner of driving was, in all the circumstances dangerous to the public or to any person. Before any such conclusion could be drawn it would be necessary for the evidence to establish, or allow an inference to be drawn to the requisite degree of proof, that the appellant's manner of driving was, because of actual or progressive fatigue, dangerous. The authorities including Kroon, Jiminez and McPherson v Lucas bearing upon this aspect of the offence have already been reviewed.
Considering the case from this viewpoint, the situation remains that the exact point of the impact and the position of the Ford sedan on the Kwinana Freeway before the accident are not established by the evidence. It also remains the case that the evidence demonstrates that the truck was stationary with its four wheels in the emergency lane but with its right rear protruding into the left-hand traffic lane of the Freeway as described by Ms Billings. It also remains the case that the vehicle was difficult to see and that other drivers did not see any illumination from the hazard lights or otherwise coming from the vehicle.
On this hypothesis, it is also the fact that the appellant has driven the Ford Fairlane successfully from Armadale along Armadale Road and north from there up the Freeway and to the accident site without any observed or apparent incident and without attracting attention for any untoward driving. Furthermore, he is travelling towards the illuminated Narrows Bridge with the lights of Perth in front of him and only a short distance before the intended destination of his journey. Nothing has occurred during the trip from Denmark to Armadale and beyond to indicate to him or to any objective observer that he was driving dangerously or that because of sleep deprivation or otherwise his level of fatigue was such as to make his manner of driving dangerous. To the contrary, the deceased, on passing through Armadale, had no qualms in announcing that he would settle down to sleep from then on which, if not conclusive, is indicative that he at least did not then have any apprehensions that the driver might fall asleep or was on the verge of doing so.
Again, the appellant's lack of memory of events after the car passed the interchange with Leach Highway is inconclusive. If the implication is that because of fatigue he was driving in a daze from then on, there was no medical or other expert opinion to provide an explanation of how that might be possible or how he could have gone so far in a daze without succumbing to sleep and some different form of accident. Nor, in this situation, do I consider that the recorded observations of the ambulance officer or the statement of Mr Pike to the police in the video record of interview about being alert, certainly from after the time the vehicle struck the kangaroo north of Williams, provides any satisfactory basis for a conclusion that he was driving dangerously because of fatigue.
The situation remains that if he did go to sleep there is no evidence of any prior warning or of consciousness of sleepiness, nor is there anything in the history of the journey or his behaviour over the previous 36 hours to suggest that he was suffering significantly from sleep deprivation. All this means that even if he did fall asleep, there was nothing preceding that episode to cause any objective observer to conclude that his manner of driving was dangerous because of fatigue. The more one examines this hypothesis the more unlikely and unconvincing is the assumption that the appellant did fall asleep. It remains a possibility or a hypothesis as proposed by Professor Hartley, but the evidence does not allow one to conclude that it has been proved.
Failure to keep a proper lookout
If it cannot be concluded, beyond reasonable doubt, that the appellant must have fallen asleep, then the question remains whether or not he was failing to keep a proper lookout. All the same uncertainties remain. The basis of the illumination accepted by the learned magistrate was that the street lights immediately to the south of the truck were not operating. The appellant was heading north, close to the city, and only moments away from his eventual destination in Subiaco. He was approaching a major entry to the city and the Narrows Bridge. An ordinary reasonable driver would not expect a broken down vehicle, let alone a truck partially obtruding into a traffic lane, to be present where it was. I have already remarked that on any view it must be regarded as an unusual hazard. Clearly, the appellant did not see it, or did not see it in time, but many accidents happen even to those keeping a proper lookout because of failing to see an unexpected or unusual hazard. That is what makes the obstacle a hazard, the risk that an ordinary reasonable driver may not be able to perceive the danger or to do so in time.
In my view, the events proved to have occurred on the Kwinana Freeway leading up to and including this tragic accident do no more than establish that that is what it was ‑ a tragic accident. It might have been avoided by more vigilance, greater care or foresight. But the essential question for this trial was whether or not the prosecution had proved beyond reasonable doubt that the appellant had been driving in a manner which was dangerous to the public or to any person. The evidence does not lead inevitably to such a conclusion. All the facts and circumstances relied upon for his Honour to draw an inference to that effect are equally capable, if not more capable, of leading to another or other inferences inconsistent with proof of the offence.
I consider that the appellant has made out grounds 1, 3, the latter part of ground 4, 5 and 6 of his grounds of appeal and that, consequently, the appeal should be allowed. In that case, the judgment and orders of the Magistrates Court on 21 March and 30 May 2011 should all be set aside and the charge against the appellant dismissed.
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