R v Anthony Rowlson No. SCCRM 96/329 Judgment No. 5791 Number of Pages 13 Criminal Law (1996) 67 Sasr 96

[1996] SASC 5791

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA MILLHOUSE(1), OLSSON(2) AND WILLIAMS(3) JJ

CWDS
Criminal law - particular offences - driving offences - culpable or dangerous driving causing death or bodily harm - appellant convicted - two counts of causing death by dangerous driving and two counts of causing bodily injury by dangerous driving. Appellant complains verdicts unsafe and unsatisfactory. Held: summing up defective. Cases based on tiredness, jury must be instructed to consider whether driver honestly and reasonably believed it was safe to drive. Jiminez v The Queen 1992 173 CLR 572; Kroon v The Queen 55 SASR 476, applied.

HRNG ADELAIDE, 23 August 1996 #DATE 20:9:1996

Counsel for appellant:     Mr G Barrett QC

Solicitors for appellant:    Low and Partners

Counsel for respondent:     Mr P Rofe Qc

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed - conviction quashed, retrial ordered.

JUDGE1 MILLHOUSE J
1. This appeal arises out of an appalling, horrible accident which occurred on the Eyre Highway two or three kilometres west of Wirrulla on 14 January 1995. The appellant was driving a road train, a prime mover and two loaded trailers with a dolly trailer between, when it collided with a Magna motor car going east in the opposite direction. Probably the dolly and the second trailer ran over the car forcing it into a bank. The driver of the car and one passenger were killed, two other passengers were badly injured. The road train weighed about 60 tonnes and was about 40 metres long. The appellant was convicted by a jury on two counts of causing death by dangerous driving and on two of causing bodily injury by dangerous driving.

2. It is common ground that, approaching the scene which was on an curve to the appellantÕs left after more than two kilometres on a sealed straight road, the prime mover was over the centre, more or less on its incorrect side. I need not go into the circumstances of the collision: they were not debated on appeal. It is clear that the driver of the motor car could have done nothing effective to avoid what happened.

3. The Grounds of Appeal are:-
    "(1) The verdict of the jury is unsafe. In particular:The only
    basis upon which the jury could convict was that the applicant had
    momentarily fallen asleep.There was insufficient evidence that the
    applicant fell asleep.
    (c) There was no direct evidence of tiredness on the part of the
    applicant ....On the contrary the applicantÕs evidence was to the
    effect that he had had adequate sleep in the preceding nights, had
    not been driving for an excessive period and did not notice any
    signs of tiredness
    (e) There was no or insufficient evidence from which the jury could
    infer that the applicant was `so tired, that in the circumstances,
    his driving was a danger to the publicÕ see Jiminez v R (1992) 173
    CLR 572 at 580)."The Learned Trial Judge insufficiently drew to the
    juryÕs attention the matters of fact bearing on the issue of
    tiredness as it applied to the dangerous driving.".

4. At trial the defence was a denial of tiredness or of falling asleep and an assertion by the appellant that just before the accident he felt the load or part of it on the first semi-trailer lurch, to the right. This caused the train to go to the right and he did not have time to correct this as the car approached.

5. Two prosecution witnesses, the man who had loaded the first semi-trailer in Melbourne and an expert, both said that the load would not have moved in the circumstances. The driver of the semi-trailer from Melbourne to Adelaide said he that had had no trouble with the load on his leg of the journey. Mr Gordon Barrett QC who had appeared for the appellant at trial and as he did again on the hearing of the appeal, acknowledged that the jury, by its verdicts of guilty, must have rejected this explanation. It was clearly a question of fact for the jury: they rejected the appellantÕs explanation and there was evidence upon which they could reject it. I need say no more about that.

6. The point at issue on appeal is tiredness. The only evidence - and there could have been no other - was that of the appellant. The accident occurred on a Saturday at a little after noon. On the preceding Thursday morning the appellant had arrived home in Adelaide from Perth. Nothing was said about his condition when he came home so I assume he was not over-tired and not suffering from any illness. His family was away: he spent the time home alone. He had an easy day, went to bed early and slept for about 14 hours. Likewise on the Friday: he went to bed between seven pm and eight pm. He was expecting a call to take a road train to Perth. One semi-trailer was coming from Sydney. The driver of that one telephoned about ten pm from Port Wakefield. About midnight the driver of the other one telephoned, from Tailem Bend, that he would soon be in Adelaide. The appellant got up, went wherever he had to, picked up that trailer and about two am on Saturday morning left for Port Wakefield. There he met the driver of the other trailer. Each drove to Lochiel where that trailer was attached, thus making up the road train. The appellant left Lochiel about three am and drove to Port Augusta. He had some trouble with a fan belt and waited at Port Augusta until it was light to fix it: he dozed in the meantime. He left Port Augusta about half- past six and drove to Kimba where he had a break for twenty to twenty-five minutes. It must have been sometime after nine oÕclock that he left Kimba and drove continuously until the accident.

7. Mr Barrett argued vigorously before us, as I am sure he did before the jury, that in the light of all this evidence of plenty of sleep and taking it easy, confirmed by the appellantÕs denial of feeling tired, there must be at least a reasonable doubt that the appellant fell asleep before the collision.

8. Whether he did nor not, I suggest, was a classic jury question. The members are entitled to use their own knowledge and experience to come to a conclusion as to whether to accept what the appellant told them or to find that the appellant had been driving for so long with so few breaks that he must, beyond reasonable doubt, have dozed off. From their verdicts, the jury was against the appellant. If there were nothing more, that would be the end of the appeal.

9. But there is more - the argument based on two cases, Kroon v The Queen (55 SASR
476), approved by the High Court in Jiminez v The Queen (173 CLR 572).

10. In Kroon v The Queen King CJ presiding in the Court of Criminal Appeal, pointed out that the offence of causing death by dangerous driving cannot be committed by a sleeping driver because a sleeping driverÕs actions are involuntary: what is crucial is whether before an accident the driver realises or ought to realise that he is so sleepy as to make it dangerous to go on driving:-
    "     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 of bodily injury ... to be regarded
    as the cause of the death or bodily injury.

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 personÕs 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 juryÕs attention to the factors in the case which
    require their consideration in determining the issue." (at p.480).

11. The High Court in Jiminez v The Queen approved of what King CJ had said. In a joint judgment, six members of the Court later said:-
    " ... If, in a case based on tiredness, 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 with respect to
    that issue. In particular, they must be told that if they conclude
    that the driving was a danger to the public, they must also consider
    whether the driver might honestly have believed on reasonable
    grounds that it was safe for him to drive. And, of course, they
    must be instructed in appropriate terms that the onus of negativing
    that defence rests with the prosecution."(at p.584).

12. The summing up in this case must be considered against that imperative.

13. The learned trial judge came to the issue twice:-
    "The prosecution case is that the road train driven by the
    accused crossed over onto the wrong side of the road and collided
    with the Magna on the edge of the bitumen or the dirt verge on the
    northern side of the roadway, the wrong side of the road so far as
    the accused was concerned.

The prosecution ask you to infer that the accused had become sleepy
    and momentarily dropped off to sleep, not becoming aware of the
    collision until awakened by the noise of it, the road train having
    failed to properly negotiate the curve, simply continuing on its
    course. The prosecution says that the accused was driving in a
    manner dangerous to the public because he must have been aware that
    he was sleepy and at risk of falling asleep, but kept on driving
    nevertheless."

14. Having canvassed the fact that three times in the police car on the way to Ceduna from the scene, the appellant dozed off and having said, "You are concerned about, on the Crown case, that state" (of tiredness) "in the time leading up to the collision", and having canvassed the way in which the appellant had spent his time since the Thursday morning:-
    "É.He told you that at no time did he nod off to sleep or feel
    sleepy in the truck. He said he did not go to sleep at any time
    before the accident."

15. That is all the trial judge said on the subject.

16. After the jury went out, the Crown Prosecutor, Mr White, referred to Jiminez. His Honour and counsel discussed the point but eventually, MrÊBarrett consenting, the learned judge decided not to give any further direction.

17. I have come to the conclusion, regretfully, that His Honour was in error in not directing more particularly. The directions he had given were not sufficient to comply with the dictates of the High Court in Jiminez v The Queen.

18. The summing up was defective. The convictions should not stand. There should be a fresh trial.

19. I suggest that the appeal be allowed, the convictions quashed and that we order a fresh trial.

JUDGE2 OLSSON J
20. This is an appeal against the conviction of the appellant, by verdicts of a Jury, of two counts of causing death by dangerous driving and two counts of causing bodily harm by dangerous driving. All convictions arise from a single road traffic accident, which resulted in the deaths of two occupants of a car and serious bodily injury to two other occupants. The stated grounds of appeal are that the verdicts are unsafe and that the learned trial judge failed to give an adequate direction bearing on what became the major issue at trial.

21. The broad facts related to the trial are not in dispute.

22. At about 12.10pm on Saturday 14 January 1995 the appellant was driving a large road train from Adelaide to Perth along the Eyre Highway. As it negotiated a shallow bend in the road, not far west of Wirrulla, it was observed to be on its incorrect side of the road. Portion of it collided with and ran over a car travelling in the opposite direction, giving rise to the consequences to which I have referred.

23. The driver of another road train proceeding in the opposite direction, some distance behind the car, said that, when he first saw the prime mover of the road train driven by the applicant, it was on its incorrect side of the road with its two trailers tracking behind it. It actually proceeded on into the dirt verge on that side of the road and then veered fairly sharply back to attempt to get on the correct side of the road. At that stage the prime mover and trailers assumed almost a ÔZÕ configuration. This witness said that the prime mover regained its correct side of the road. The first trailer was rocking behind it and almost straightened up, but the second trailer (which was right across the road), overturned to its right and dragged the first trailer around. It was in the course of that manoeuvre that an impact must have occurred between one or more of the trailers and the car.

24. At the time of the accident it was what was described as a nice, fine day. The road surface was dry and smooth.

25. The appellant later said to a police officer that the load in his first trailer had shifted and "thrown the whole lot across the road" and that "he couldnÕt do anything about it". That version was substantially reiterated by the appellant when he was later formally interviewed.

26. The appellant gave evidence on oath, in the course of which he told the Jury that, approaching the road bend, he was travelling at about 90-95kph and straddling the white line on the straight stretch before it. This generally accorded with the evidence of the oncoming road train driver, who said that it was normal practice to do that when it was safe to do so.

27. On the appellantÕs narrative, as he approached the bend, he went to bring the road train back fully into the left lane. He felt a lurch in his truck, looked in his rear view mirror and saw a bulge in the canvas side of the first trailer - in which there was a single pallet mounted on top of a bottom series of pallets forming the main cargo storage. The movement made him move to his right. He was endeavouring to steer the vehicle through the bend, when the car came past and the rear trailer overturned.

28. It should be said that, at trial, a good deal of time was occupied with the evidence of Senior Constable England, an expert major crash investigator. He attended the scene some time after the accident and made technical observations upon the basis of which he attempted to reconstruct the sequence of physical events which had taken place.

29. It was the ultimate theory of this witness that both trailers collided with the car and that the prime mover must have been on the edge of the bitumen or off the bitumen, on its incorrect side of the road, at the point of impact. He asserted that it was not possible for the prime mover to have been on its correct side of the road at the point of impact. He considered that there had been no sudden swerve of the road train.

30. In the event, it seems to me that such preoccupation with the technicalities of precisely what course the road train pursued - which was, in any event, in direct conflict with the evidence of the independent witness, who was driving the oncoming road train and actually observed what occurred - was, in large measure, unproductive.

31. At the conclusion of the evidence it was common ground that the Crown case depended on only one substantial issue. This was described by the learned trial judge, in his summing up, in these terms-    "The prosecution ask you to infer that the accused had become sleepy and momentarily dropped off to sleep, not becoming aware of the collision until awakened by the noise of it, the road train having failed to properly negotiate the curve, simply continuing on its course. The prosecution says that the accused was driving in a manner dangerous to the public because he must have been aware that he was sleepy and at risk of falling asleep, but kept on driving nevertheless. The prosecution says, in effect, there is really no other explanation for the collision."

32. As to this the Crown pointed to the course which the road train had pursued (coupled with the expert evidence led by it) and invited the Jury to infer that the appellant must, momentarily, have fallen asleep.

33. For his part the accused, in effect, said that he had not dozed off, that, only a short distance before, he had negotiated a sharp left turn to the left without difficulty and that the accident had, in reality, been the product of his momentary distraction by what he had thought at the time, was a shifting of his load.

34. As the learned trial judge pointed out in his summing up, the only direct evidence as to the appellantÕs state at the relevant time came from the appellant himself. That evidence eschewed any indication at all, prior to the accident, of the onset of weariness or indicia of lack of concentration.

35. In the course of his evidence the appellant gave a detailed account of his activities leading up the trip to Perth and the occurrence of the accident. The sequential highlights of it may be summarised in this manner:
    - The appellant lived in the Adelaide suburbs and regularly drove
    road trains on the Adelaide-Perth run. He arrived at the Para Hills
    depot from Perth at about 9 or 10am on the Thursday. He went home
    at about lunch time and remained, quietly, in and about the house
    during the afternoon. His family was away. He "just relaxed",
    "watched a bit of tele" and washed some clothes.
    - He went to bed at about 8.00pm and slept until about 10.00am the
    next morning.
    - He spent the Friday fairly quietly in or about the house, although
    he did go to the shops and also paid some bills.
    - That evening he went to bed between 7 and 8pm. He was due to pick
    up trailers for the next Perth trip from two other drivers - one
    coming from Sydney and one from Melbourne. They were to telephone
    him on approaching Adelaide.
    - At about 10pm he received a call from the Sydney driver and
    arranged to wake him up at Port Wakefield (where the latter would be
    resting) later the next morning, when the appellant arrived there
    with the trailer ex Melbourne. He then went back to sleep.
    - The appellant received a further telephone call from the Melbourne
    driver, at about midnight, informing him that the latter had arrived
    at Tailem Bend and would be proceeding on to Adelaide.
    - He thereupon showered, dressed, collected what he required for the
    trip, and went to the depot, where he met the Melbourne driver at
    about 2.00am.
    - The two men attached the Melbourne trailer to the prime mover
    assigned to the appellant and he thereafter drove it to Port
    Wakefield, arriving about an hour later.
    - He then woke the Sydney driver, had some coffee, and then
    proceeded north with the latter to Lochiel, being the point
    geographically nearest to Adelaide at which it was lawful to attach
    the second trailer.
    - The second trailer was then attached to the dolly at the rear of
    the first trailer and the appellant departed Lochiel for Perth at
    about 3.00am.
    - On arrival at Port Augusta it was still dark. The fan belt had
    been ÔsquealingÕ, so the appellant decided to adjust it. He lay
    down on the bunk in the truck and dozed for an hour or so, until it
    was sufficiently light to see what he was doing. During that period

    he had a drink of Coke or coffee.
    - Having attended to the fan belt the appellant departed from Port
    Augusta at between 6.30 and 6.45am. He drove some two hours to
    Kimba, where he stopped for about 20-25 minutes and checked his
    truck. He then drove on to the scene of the accident.

36. The appellant stated categorically that at no time prior to the accident did he nod off or feel sleepy. He described the manner in which, only a minute or so prior to the accident, he had navigated the sharp bend west of Wirrulla without difficulty, as earlier referred to.

37. He was not shaken in cross-examination on this question and, in the event, there was not a scintilla of evidence to suggest that, prior to the impact, he was conscious of the onset of fatigue, or had been driving in otherwise than an impeccable manner. Nor did the history of his activities indicate a pattern of behaviour which, manifestly, was either irresponsible or likely to have precipitated the onset of undue fatigue - particularly bearing in mind that he was an experienced long haul driver.

38. True it is that a police office deposed that, when, after the accident, the appellant was conveyed by police vehicle to Ceduna at about 4.30pm, he appeared to have nodded off to sleep several times. However, as the learned trial judge pointed out, this was at a point long after the accident; and that experience of life suggests that it is quite common for persons who have been subjected to a traumatic incident to take refuge in sleep. Quite clearly this evidence was of little or no probative value whatsoever, for present purposes.

39. In the course of his summing up the learned trial judge carefully summarised, in precis form, the factual evidence given on behalf of the Crown and the Defence. He reminded the Jury that it was for them to decide whether they accepted some or all of that material. He cautioned them against permitting the horrific outcome of the accident "to distract you from what is the real issue in this case; and the real issue in this case is the manner of driving. It is the real issue and it is the only relevant issue."

40. He further told the Jury:
    "For you to find the accused guilty of any of the charges contained
    in the information, you will have to be satisfied beyond reasonable
    doubt that the inference the prosecution asks you to draw is the
    only rational inference open on the facts as you find them to be,
    and then you will have to be satisfied beyond reasonable doubt that,
    in those circumstances, the accused, on the occasion in question,
    was driving in a manner dangerous to the public."

41. It is fair comment to say that, relevantly for present purposes, his summing up did not extend further than that.

42. When the Jury retired, Mr White, the Crown Prosecutor, expressed the opinion that the summing up had not gone far enough and had not covered the matters adverted to in Jiminez v The Queen (1992) 173 CLR 575 (ÔJiminezÕ) Counsel for the defence professed not to be familiar with that authority and, in effect, said that he was content to accept Mr WhiteÕs summation of the requirements of it.

43. After some debate the learned trial judge declined to give any further direction.

44. In summing up to the Jury in this matter the learned trial judge was required to give effect to the pronouncements in the leading authorities bearing on offences of the type here in issue.

45. The first of these is the decision of the Full Court in Kroon v The Queen
(1991) 55 SASR 476. The second is the decision of the High Court in Jiminez.

46. In the former case King CJ made these points:
    "It can be seen from the cases referred to that the notion that the
    offences of causing death or bodily injury by dangerous driving, or
    of negligent driving, can be committed while asleep and that the
    circumstances in which sleep occurs is irrelevant has not won
    general acceptance. At common law criminal liability attaches only
    to acts or omissions which are voluntary, that is to say, the result
    of an exercise of the will of the accused person. There is a
    presumption that the legislature, when creating a statutory offence,
    does not intend to exclude such a basic principle of the criminal
    law and that presumption can only be rebutted by express words or
    the clearest of implications. The language of the sections creating
    the offences of causing death or bodily injury by dangerous driving
    (Criminal Law Consolidation Act, s19a) and of driving without due
    care (Road Traffic Act 1961, s45) does not exclude the principle
    requiring a voluntary act or omission as the condition of criminal
    liability, and there does not appear to be any basis for such an
    implication. On the contrary, the indictable crimes of causing
    death or bodily injury by dangerous driving clearly imply some fault
on the part of the driver: see R v Gosney (1971) 2 QB 674 at 679.
    The above reasoning leads to the conclusion that neither the crimes
    of causing death or bodily injury by driving in a manner dangerous
    to the public nor the offence of driving without due care can be
    committed while asleep. 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 (supra),
    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 personÕs 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 juryÕs
    attention to the factors in the case which require their
    consideration in determining the issue."

47. In Jiminez the High Court approved that reasoning. Having recapitulated the law thus:
    "For the driving to be dangerous for the purposes of s52A 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. Although a course of conduct is involved it need not
    take place over any considerable period. Nor need the conduct
    manifest itself in the physical behaviour of the vehicle. If the
    driver is in a condition while driving which makes the mere fact of
    his driving a real danger to the public, including the occupants of
    the motor vehicle, then his driving in that condition constitutes
    driving in a manner dangerous to the public. In the same way,
    driving a motor vehicle in a seriously defective condition may
    constitute driving in a manner dangerous to the public, even though
    the defect does not manifest itself until such time as the vehicle
    is out of the control of the driver. But it should be emphasized,
    and it must always be brought to the attention of the jury, that the
    condition of a driver must amount to something other than a lack of
    due care before it can support a finding of driving in a manner
    dangerous to the public. Driving in that condition must constitute
    a real danger to the public."

48. The majority went on to say:
    "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."

49. The only further comment which need be made is that, in a case such as this, in which the consequences of the relevant accident are truly horrific, it becomes doubly important to sum up to the Jury in a manner in which the authority of the judge is brought to bear to ensure that the focus is kept on the proper objective test, so that the natural emotive response generated by the evidence is not permitted to distract the Jury from its true task.

50. On a careful perusal of the summing up it is plain that it did not satisfy the requirements stipulated in Jiminez. The law was not spelt out, in terms of that case, with clarity. The Jury was not specifically warned that the appellant could not be convicted of the offences charged, on the basis contended for by the Crown, unless they were satisfied, beyond reasonable doubt, that the condition of the appellant, immediately prior to the impact, was such that his continuing to drive in that condition constituted an abnormal danger to the public.

51. It was vital to stress that it was not enough simply to infer, beyond reasonable doubt, that the appellant did doze off at the wheel - even if they were not prepared to accept his narrative of temporary distraction by some movement of the load. They had to be told that the appellant could not properly be convicted unless - given the state of the evidence - the only reasonable and rational inference which arose was that, because of his actual awareness that he was becoming drowsy, and/or events leading up to the incident which must, patently, have given rise in the ordinary person to undue fatigue, his continued driving at the time constituted "a real danger to the public".

52. This was simply not done in the instant case. Had the Jury been directed in that fashion, it is impossible to perceive how, rationally, it could have drawn the requisite inference adverse to the appellant.

53. There was nothing in the history of events to suggest either that he was unduly fatigued, or that he ought to have appreciated that he ought not to continue driving at that point. There was no evidence to suggest any prior incident of drowsiness. On the contrary, the evidence of the successful negotiation of the sharp bend a minute or so earlier was a powerful indicator to the contrary.

54. It may well be that a strong inference arising from the evidence was that, as one of two possible theses (the other being temporary distraction due to a movement in the load), the appellant did, suddenly and unexpectedly, doze off. So be it. However, that, taken alone, was not enough to satisfy the tests postulated in Kroon and accepted in Jiminez.

55. Quite apart, then, from the fact that the trial miscarried by virtue of the failure to give adequate directions in terms of Kroon and Jiminez, it must, inevitably, be concluded that, even if the same verdicts had been returned after a full and adequate direction, those verdicts would, necessarily, have had to be characterised as unsafe and unsatisfactory.

56. In this regard the classic test to be applied is, of course, that enunciated in M v The Queen (1994) 181 CLR 487. This court must ask itself whether it thinks that, upon the whole of the evidence, it was open to the Jury to be satisfied beyond reasonable doubt that the accused was guilty. In answering that question the benefit of seeing and hearing the witnesses was not a predominant factor, because so much of the factual scenario was not in question. The substantial issue bore on the question of what inferences naturally arose from the established facts.

57. This was a classic situation in which, to apply the rationale of Knight v The Queen (1992) 175 CLR 495, this court must inquire whether a reasonable Jury ought to have found that an inference or hypothesis consistent with innocence remained open on the evidence. The answer to that question being in the affirmative, the Jury ought to have given the accused the benefit of the doubt necessarily created by that circumstance. It is not the law that an accused can succeed upon appeal only if the two inferences or hypotheses - one consistent with innocence and the other consistent with guilt - were equally open.

58. Here, at least from the Crown viewpoint, more than one inference was open and there was no compelling feature to suggest that one was to be preferred to another.

59. I, unhesitatingly, conclude that the Jury verdicts cannot be supported. I would allow the appeal, quash the verdicts and the sentence and orders based on them, and substitute verdicts of Ônot guiltyÕ in each instance.

JUDGE3 WILLIAMS J
60. I agree with Millhouse J.