R v Clarke

R v CLARKE
[2003] SASC 380
Court of Criminal Appeal: Doyle CJ, Prior and Vanstone JJ
DOYLE CJ: I have had the advantage or reading the reasons of Vanstone J. I adopt her outline of the events giving rise to the charge against Mr Clarke, of the evidence about the analysis by Mr Sims of the blood sample, and her statement of the issues argued on appeal.

I agree generally with her reasons, except in relation to one ground of appeal which leads me to conclude that the appeal should be allowed. However, there is one aspect of the appeal on which I also wish to express my own views briefly.
Admission of Mr Sims’ evidence
Mr Sims’ evidence related to the identification and measurement of foreign substances in human blood. The evidence described the process that he followed to provide an estimate of the quantity of methylamphetamine in blood samples taken from Mr Clarke.
The topic is one on which expert evidence is admissible, and on which Mr Sims was well qualified to give expert evidence.
Because the blood sample was “denatured” Mr Sims reconstructed the sample by adding water, and then analysed the sample in the usual way. Usually denatured samples are not analysed by staff of the Forensic Science Centre. This, I gather, is because the analysis of denatured blood does not permit the concentration of alcohol or drug present to be reported to the level of accuracy required for the giving of a certificate under s 47I of the Road Traffic Act 1961 (SA).
In the present case, contrary to the usual practice, Mr Sims carried out an analysis of the denatured samples at the request of prosecuting authorities.
Mr Sims said that he made what he called a “reasonable assumption” that the samples had denatured because an insufficient quantity of blood had been placed into the relevant containers. I gather from his evidence that that can easily lead to the denaturing of a sample. This occurs because, he said, insufficient liquid is added to dissolve the solids that are placed in the container at the time of manufacture. Those solids are put in there to preserve the blood sample.
Having read the whole of his evidence, it appears to me that Mr Sims was expressing an opinion as to the likely cause of the denaturing. This opinion was based on his experience working in the field. His reasonable assumption was not a pure assumption.
Mr Sims then followed the usual method for analysing a sample of blood to determine the presence of a drug in the blood, and to measure the quantity. It is implicit in everything he said that he regarded the method of analysis as an appropriate method to use in the circumstances. This then yielded the result that he reported.
Reading his evidence as a whole there is no reason to doubt the suitability or the reliability of the process that he followed. He reported the result as an approximation or estimate, being 0.2mg of methylamphetamine per litre of blood.
He reported the result as an approximation because he had made an assumption about how the blood had become denatured and because the results from the different samples “were not within the normal guidelines of our laboratory for the accurate reporting of concentrations of drugs in blood.” The figure he gave was “an estimate, not a precise quantification.” Mr Sims’ assumption about the cause of the denaturing enabled him to conduct the analysis on the basis that there was no loss of blood in the denaturing process. My understanding of his evidence is that that was an important factor. It follows that, having regard to the manner in which he gave his evidence, an important basis for his evidence was his opinion as to the cause of the denaturing of the sample. Neither counsel explored with him at trial the implications for the accuracy of his estimate if his opinion as to the cause of the denaturing was wrong.
In my opinion this was one of those cases in which the issues raised by the procedure followed by Mr Sims were capable of affecting the admissibility of the evidence. If the method of analysis was premised on an assumption which was not made good, and if the absence of the assumed fact made the result unreliable, it followed that the result was inadmissible. It would be inadmissible in those circumstances because the reliability of the result depended on the unsubstantiated assumption.
I have read Mr Sims’ evidence carefully. His “reasonable assumption” about the cause of the denaturing was not really challenged. As I have said, despite his manner of expression, I read it as the opinion of a person with expertise and experience in the area, based on his experience in the area, and not as a pure assumption or hypothesis. The effect of his evidence is that, provided the assumption is valid, the procedure followed was appropriate.
Although counsel for Mr Clarke exposed in cross-examination the fact that his opinion as to the amount of methylamphetamine in Mr Clarke’s blood rested on an opinion that the blood samples had become denatured in the manner identified by Mr Sims, there was no real challenge to that opinion. That opinion provided a sufficient basis for the admissibility of the evidence. As I read the evidence it was not really suggested to Mr Sims that a reliable estimate of the quantity of drug present could not be made from the analysis of a reconstituted blood sample.
It follows that the analysis was established as an acceptable scientific method, and Mr Sims’ opinion was admissible. There are aspects of his evidence that could have been further elaborated, but as it stands the evidence was admissible.
Of course, that left the question of weight, but that was a matter for the jury. In this respect the judge’s directions were quite adequate.
The judge was asked to exercise his discretion to exclude the evidence. On this issue I agree generally with the reasons of Vanstone J.
I agree with her that the discretion exercisable with reference to considerations of public policy did not arise. However, if that discretion did arise, I agree with the judge’s conclusion that it should not be exercised to exclude the evidence. There is no suggestion that the samples were obtained unlawfully or by an impropriety. On the evidence there is no reason to think that the denaturing of the samples was due to anything other than oversight or casual error, in failing to take a sufficient quantity of blood. Allowing the evidence to be used will not condone or encourage disregard of the statutory procedures. Furthermore, on the evidence the samples could still be analysed satisfactorily, although not as accurately as would be the case if they were not denatured.
I agree also that the exercise of the discretion based on considerations of fairness to Mr Clarke did not call for the exclusion of the evidence. There was no relevant unfairness in the obtaining of the evidence. The reception of the evidence did not make the trial unfair. In particular, it remained open to Mr Clarke to have samples of the blood analysed if he wished. The evidence was not unreliable. It was not evidence that could not fairly be tested. In all the circumstances, there were simply no grounds to exclude the evidence.
There is nothing in the suggestion that the prejudicial effect of the evidence outweighed its probative value.
I should add that I do not wish to express any opinion on the question of whether it is appropriate, in this connection, to rely on the fact that at one of the hospitals a sample of blood which was not denatured was available.
Directions to the jury
On this topic I agree with the reasons of Vanstone J, and there is nothing that I wish to add.
The alternative hypothesis
As Vanstone J explains in her reasons, the trial judge left to the jury an alternative basis of guilt. It was the possibility that the accident occurred because Mr Clarke, when confronted with the truck driven by the deceased on Mr Clarke’s side (the correct side of the road), failed to take the action that he should have taken to avoid the risk of a collision that that situation presented. This was not a hypothesis that the prosecution had advanced as part of its case. It emerged as a possibility from the evidence of a defence expert. At trial, counsel for Mr Clarke objected to this possibility being left to the jury, but the judge declined to withdraw or to modify his direction.
It is true, as Vanstone J says, that the direction that the judge gave was technically correct. It was theoretically possible for Mr Clarke to be convicted on this basis.
However, in my opinion the judge should have directed the jury to disregard this alternative hypothesis, and further that they should acquit Mr Clarke if it was a reasonable possibility that the incident involving the collision began with Mr Clarke finding himself confronted on his side of the road by the truck driven by the deceased. The alternative hypothesis was almost entirely speculative, resting upon evidence by the defence expert that, having regard to the markings on the road, it was possible that the incident began with the truck driven by the deceased being on its incorrect side of the road. The introduction of the alternative hypothesis introduced a completely new element into the case, late in the piece. There was the potential for it to be productive of unfairness. The jury might have deliberated on the matter on the basis that whichever truck first went onto its incorrect side of the road, they could convict Mr Clarke. As Vanstone J says, that is technically correct. But a case in which Mr Clarke was dealing with an emergency created by the other driver was so different from the case as presented by the prosecution, that it was unfair to leave that case to the jury as providing a basis for guilt. And, as I have said, it created a situation in which the jury might have been led to think that, however the emergency developed, if Mr Clarke did not handle it adequately, he was guilty.
In short, I consider that leaving this alternative and new hypothesis to the jury created the risk of a miscarriage of justice such that, unfortunately, the trial has miscarried.
On that basis the appeal should be allowed, and a retrial should be ordered.
Appeal against sentence
For the reasons given by Vanstone J, I would dismiss the appeal against sentence.
Conclusions
I would allow the appeal, set aside the conviction and order a retrial.
PRIOR J: I agree with the reasons proposed by Justice Vanstone. The appeal should be dismissed.
VANSTONE J: Wayne Robert Clarke appeals by leave against his conviction by verdict of a jury in the District Court for causing death by dangerous driving and also against the sentence imposed.
The collision giving rise to the charge took place in the early hours of 5 November 2001, near Yumali. The appellant was driving a Freightliner prime mover towing a loaded trailer and travelling roughly north. His journey had started in Stawell in Victoria a bit over five hours earlier, although he had been on the road for much of the thirty-eight hours leading up to the collision and in that time had covered over 1500 kilometres in his rig. He was due at Port Adelaide at about 5.00 am, though he told police there was some flexibility. Clearly he could not have met that schedule. The deceased was travelling south in a Kenworth prime mover with two trailers containing empty bottles. The collision occurred on the eastern side of the highway, being the incorrect side for the appellant. The appellant told police he had no memory of the hour or so prior to the collision. The deceased died at the scene. There were no other witnesses to it. The appellant was convicted by unanimous verdict of a jury after a trial occupying ten days. Later he was sentenced to twenty-eight months imprisonment with a twelve month non-parole period and he was disqualified from holding or obtaining a driver’s licence for seven years.
The grounds of appeal against conviction complain of the admission of evidence purporting to describe the quantity of methylamphetamine found in blood samples taken from the appellant after the collision, that blood having “denatured”; that directions given to the jury on that topic were in error; of certain further directions given by the learned trial judge on discrete topics and that the verdict was unsafe and unsatisfactory.
I turn to the first ground which deals with admission of the analysis of the appellant’s blood.
The appellant suffered injury in the collision. He was first taken to the Murray Bridge Hospital and later to the Flinders Medical Centre (“FMC”) for treatment. At each hospital samples of his blood were taken pursuant to section 47I(1) of the Road Traffic Act 1961 (“RTA”). In accordance with the Act the samples were each divided so that the appellant would have his own sample. About one and a half hours separated the taking of the samples. At the FMC part of the blood sampled was retained for purposes relevant to treatment.
On 6 November 2001 it was sought to analyse the Road Traffic Act police samples which had been delivered to the Forensic Science Centre (“FSC”). It was found that each blood sample had denatured and was therefore not suitable for analysis via the method usually employed in respect of such samples. It was accepted before the judge on the voir dire that the appellant’s own samples had also denatured by the time of examination. On 15 November 2002 a forensic scientist, Mr Donald Sims, employed within the FSC examined the denatured police samples. He saw that they both had a jelly-like appearance. He sought to reconstitute them by adding water and vigorously mixing in a vortexer. Then he analysed them by the usual methods of gas chromatography and spectrometry. Having done so he concluded that the concentration of methylamphetamine in both of the preparations was “approximately 0.2 milligrams per litre of blood”. Whilst counsel for the appellant did not challenge the admissibility of the fact of methylamphetamine being found in the blood, it was asserted that the evidence as to the level was inadmissible since the method employed by Mr Sims was an unusual one in terms of FSC practice; and that, further, the evidence fell to be excluded in the exercise of the trial judge’s discretion, either because there had been illegality in the sense of non-compliance with section 47I RTA or because it would be unfair to the appellant to admit the evidence, he not having been given a sample of blood in good condition upon which independent analysis could be undertaken.
The trial judge agreed that a voir dire hearing should be held. Mr Sims was the only witness called on the voir dire. The taking of the samples and the chain of evidence on them were the subject of admissions both on the voir dire and before the jury; indeed the certificates of the two medical practitioners who sampled the blood were put into evidence. At the conclusion of the voir dire his Honour found that the evidence was admissible and declined to exercise the discretion to exclude the evidence which he considered he had pursuant to Bunning v Cross (1978) 141 CLR 54. His Honour published reasons for his decision.
There can be no doubt both on the basis of the evidence Mr Sims gave on the voir dire and subsequently at trial that he is a well qualified forensic scientist whose particular field of expertise includes analysis of blood for the presence of drugs. Without the assistance of an expert witness such as Mr Sims the jury would have no means of forming a view as to the presence in the appellant’s blood of drugs. In R v Bonython (1984) 38 SASR 45 King CJ discussed the prerequisites for admission into evidence of expert testimony. He said that in certain circumstances an examination of the methodology used by the witness might be pertinent to the question of whether that testimony should be admitted. His Honour said, at page 47:
“If the witness has made use of new or unfamiliar techniques or technology, the court may require to be satisfied that such techniques or technology have a sufficient scientific basis to render results arrived at by that means part of a field of knowledge which is a proper subject of expert evidence.”
In this case the particular step taken by Mr Sims, which the defence contended was both outside his expertise and a technique in want of validation, was the reconstitution of the semi-solid mass by the addition of distilled water. Mr Sims frankly admitted that he did not fully understand the process by which the blood had denatured, although he believed that it had occurred because of an insufficient quantity of blood being placed in the vials, which already contained small quantities of anticoagulant and preservative in the form of salts. He said that in the vast majority of cases where samples were denatured, an insufficient sample was the cause. It could also occur because of insufficient mixing of the blood with the anticoagulant and the preservative, or because of the sample being subjected to raised temperatures. In the case of that last possibility, there could be a loss of one or more parts of the blood and the integrity of the sample could be affected.
In respect of these samples, Mr Sims noted that the time between sampling and transportation to the FSC was very short, that the blood appeared as jelly-like rather than solid and that there had been only a small volume of blood in each vial in the first place. That led him to conclude that the denaturing process in this case did not lead to a loss of integrity of the blood. The fact that the samples from both hospitals appeared similar further tended to rebut any suggestion of unusual treatment of the samples being responsible. Mr Sims’ hesitation in relation to the results he achieved arose not from the process of adding water and mixing – a fairly standard laboratory technique – but rather his lack of certainty of the integrity of the samples at the time they arrived in the laboratory. He said that could not be verified on a scientific basis. Ultimately, the integrity of the sample was a jury question. It was apparent that had Mr Sims not resolved that question favourably in his own mind, he would not have been prepared to proffer the opinion he did, but the jury had before it the factors bearing on that question and was in a position to form its own view. But proceeding on that assumption, Mr Sims’ evidence was that the technique he employed was an acceptable one in terms of scientific methodology and he expected it to produce a valid result. The very fact that the results achieved in relation to the Murray Bridge Hospital sample and the FMC sample were comparable, notwithstanding that the two samples obviously had a different history, was supportive of the validity of the results.
There were several reasons why Mr Sims expressed his results in a guarded manner. First there was the lack of certainty as to the process by which the blood had denatured. Then there was some degree of error, however slight, built into the process of sampling the semi-solid mass and adding the correct quantity of water. In addition, the duplicate samples taken by Mr Sims from each item as per standard laboratory practice, gave numerically different results and those “duplicate results” were not within the FSC guidelines for accurate reporting of concentration of drugs in blood. For those reasons Mr Sims reported only one “significant figure” (in this case one decimal point) and reported it as an approximation. When pressed as to the outer limits of his opinion he said that he considered each would probably be between 0.15 and 0.25 milligrams per litre.
Mr Sims explained that because blood alcohol analysis for the purposes of the RTA required quite some precision in terms of results, the renaturing process was not usually utilised. Consequently, on very few occasions was he aware of the method being used within the FSC. However, he said that in arriving at his final result he had been conservative. He believed that more accurate results would have yielded figures “a little higher than I reported”.

In my view it is doubtful that such questions as arose from the methodology employed by Mr Sims were appropriate for examination on the voir dire. In saying so I offer no criticism of the learned trial judge. Indeed it was not suggested to him that evidence should not be taken on the voir dire. Inasmuch as the method used by Mr Sims included an unusual step, it was no doubt helpful to counsel and the judge to hear the evidence before the jury was empanelled. The process was not the subject of evidence at the preliminary examination of the charge. But in the end the evidence demonstrated that questions going to the methodology used in this case went only to weight and not to the admissibility of the evidence. In any event I consider that properly understood, the evidence was admissible.
The next question is whether the learned trial judge erred in declining to exclude Mr Sims’ evidence in the exercise of his discretion. I consider that in this case the public policy discretion did not arise. It was not demonstrated by the appellant that either blood sample was obtained by means of illegality or impropriety by any person, let alone a law enforcement officer. At its highest, the evidence before the judge established that there was some irregularity which caused the blood to denature; quite probably that insufficient blood was taken. However, why that occurred - notably in the case of both samples - was not explored. Even assuming there was some mistake or lack of care by one or both of the medical practitioners concerned – which I would not be prepared to assume in the state of the evidence – that would not give rise to the public policy discretion to exclude the results of the analysis: Police v Jervis (1998) 70 SASR 429, 445-449.
Mr Edwardson, for the appellant, argued that there is inconsistency between this court’s decision in French v Scarman (1979) 20 SASR 333 as against R v Lobban (2000) 77 SASR 24 regarding the enlivening of the public policy discretion in situations where there has not been compliance with all statutory safeguards provided in the RTA relating to the compulsory taking of breath or blood samples. I do not think that is so. In R v Lobban, Martin J, with whom Doyle CJ and Bleby J agreed, emphasised that the public policy discretion is only enlivened when the evidence sought to be excluded is the product of unlawful or improper conduct on the part of law enforcement officers. Merely some association between the evidence gained and the illegality is not enough. In French v Scarman, King CJ acknowledged the need for that causal link, but said, in effect, that although the obtaining of the breath sample in that case did not strictly arise from the non-compliance with the statutory provisions by the police officer concerned, the fact that the obtaining of the evidence and the failure to observe the statutory safeguard were “so closely connected” (page 338) was a sufficient foundation for the public policy discretion. Such an extension of the ambit of the public policy discretion, modest as it was, does not deny the correctness of the principle, nor detract from it.
In any event, as Doyle CJ pointed out in Police v Jarvis:
“… the protection intended by the use of the discretion is against the loss of rights due to some impropriety on the part of the law enforcement authorities. The discretion is not intended to be used to protect against a loss of rights, in a rather general sense, resulting from events that are not the responsibility of the law enforcement authorities.” (page 447)
The qualification expressed by the Chief Justice in R v Lobban to his decision in Police v Jarvis did not touch the decision so far as it referred to the availability of the public policy discretion. There is no inconsistency between any of these decisions. In my view the decision in French v Scarman does not avail this appellant, any irregularity here not having been caused by a law enforcement officer.
However, in this case, plainly the unfairness discretion arose. That is the discretion to exclude evidence of any kind where the strict rules of admissibility would operate unfairly against the appellant: Driscoll v The Queen (1977) 137 CLR 517; Alexander v The Queen (1981) 145 CLR 395, 402; Stephens v The Queen (1985) 156 CLR 664; Bunning v Cross at 73-74; R v Lobban (2000) 77 SASR 24, 39. That would occur if:
“… the admission of the evidence would create a perceptible risk of a miscarriage of justice that cannot adequately be dealt with by appropriate directions to the jury …”: (R v Lobban at 48 per Martin J.)
In this case the appellant was, through no fault of his own, denied the opportunity of having his own samples of whole blood independently examined, as is the policy of section 47I. Accordingly, the argument ran, it would be unfair to use against the appellant evidence of Mr Sims’ approximation of the methylamphetamine level. This comes down to a complaint of being denied a means, usually available, of checking the reliability of the evidence against him. In my view there are several answers to the complaint. First, Mr Sims’ evidence was subjected to close cross examination by counsel then appearing and the witness readily acknowledged such shortcomings as there were in the process, as compared with the usual procedures. Next, the appellant could have called evidence casting doubt on Mr Sims’ methodology in reconstituting the samples and his results, if such evidence were available. He did not do so. Further, he had his own denatured sample, analysis of which could have provided some check on Mr Sims’ work. Those matters would be enough to satisfy me that the learned trial judge was correct in declining to exclude the evidence, but there is a further matter.
I mentioned that at the FMC some blood was reserved for treatment purposes. When that blood, which was not denatured, was analysed it was found to contain 0.2 milligrams of methylamphetamine per litre of blood, that is the same level as Mr Sims found, though not expressed as an approximation. That result was not led by the prosecution at trial. An argument that it fell to be excluded on public policy grounds was mounted, but certain difficulties were encountered during the course of it and, having received a favourable ruling on the RTA samples, the prosecution did not press for admission of the whole blood analysis. To my mind that does not preclude its use in relation to a consideration of discretionary exclusion of the RTA samples by reason of unfairness. I would have been of the same view even had the learned trial judge gone on to exclude the whole blood analysis as an exercise of discretion on public policy grounds. In circumstances where a court is asked to exclude evidence, the accuracy of which is said to be under question, on the basis that a statutory safeguard designed to ensure accuracy is fortuitously absent, it would be illogical for the court to be denied resort to other, reliable evidence to the effect that the impugned evidence was indeed accurate.
Counsel for the appellant also submitted that the RTA samples should have been excluded in the exercise of the judge’s discretion on the basis that they were more prejudicial than probative. As far as I can see this was not an argument put to the learned trial judge. In any event, in my view evidence of the analysis carried with it no prejudicial effect over and above its probative value. (See The Queen v Duke (1980) 22 SASR 46, 47-48.) Therefore the submission was not well made.
In his reasons for declining to exclude the evidence of analysis of the RTA samples, the learned trial judge specifically referred to Bunning v Cross and he purported to take into account “any unfairness to the accused in the admission of Mr Sims’ evidence” in determining how his discretion should be exercised. As I have said, in my view no exercise of the public policy discretion was called for in this case; it was the unfairness discretion which arose. It is clear from what His Honour said that he was alive to the issues relevant to the question of unfairness in using the evidence of analysis against the appellant. In any event I am satisfied for the reasons I have given that it would have been wrong to exclude the evidence as an exercise of discretion. Accordingly, ground 1 fails.
It was accepted during argument that if the RTA samples were properly admitted then ground 2, which was concerned with directions on that evidence, fell away.
Ground 3 complains that the learned trial judge “erred in directing the jury that it was open to them to conclude that the appellant was so affected by the ingestion of methylamphetamine that his capacity to drive was impaired.”
The jury had before it several items of evidence bearing on this topic. The appellant told a police officer the day after the collision that he had tried “speed” at the suggestion of a mate because he was feeling tired. He said that had occurred “probably last week” near Albury. He had taken it in the form of a powder straight from a spoon without mixing it. He said it made him feel “no different really”. At the scene of the collision, which occurred at approximately 3.20 am, the appellant told an ambulance officer that he had taken methylamphetamine when he was on “the other side of Bordertown”. Between them they determined that to have been at about 2.30 am. However from Bordertown to the collision site is over 130 kilometres and the appellant told police he had stopped for a coffee in Bordertown. Consequently the taking of the drug would have been earlier than 2.30 am. The Murray Bridge Hospital blood sample was taken at 5.40 am and the FMC sample at 7.05 am. The appellant did not give evidence at trial and so these matters were not challenged nor further elucidated.
In order to interpret Mr Sims’ evidence for the jury, the prosecution called Professor Jason White of the Department of Clinical and Experimental Pharmacology at the University of Adelaide. There was no challenge to his expertise to give evidence of the likely effects on the body and central nervous system of various blood levels of methylamphetamine.
Professor White has said that methylamphetamine is used for therapeutic purposes overseas, although not in Australia. Those purposes include to combat narcolepsy, a symptom of which is falling asleep during the day “at unwanted times”. A “therapeutic dose” was designed to achieve a blood level of up to 0.04 milligrams per litre of blood. At that level the effect on a fatigued driver would generally be to alleviate the fatigue and to thereby improve the driving performance of that driver. Professor White said that if taken orally methylamphetamine usually starts to have an impact within 20 minutes and the peak concentration is achieved in about two hours. Its half-life is between about seven and thirty hours.
Professor White said that at concentrations in the range of 0.04 to 0.15 milligrams per litre the effects on driving faculties could be adverse, especially towards the higher end of that range, where there could be a tendency to increased risk taking and an impairment of rational thinking and decision making. At a level between 0.15 and 0.25 milligrams per litre, he said there would likely be a significant impairment of driving performance.
Assuming an oral ingestion at about 2.30 am and levels of 0.2 at 5.40 am and 7.05 am and assuming an average absorption rate, Professor White calculated that the level at the time of the collision was likely to have been above 0.2 milligrams per litre. But assuming a slow absorption rate, it would have been between 0.1 and 0.2. If the ingestion were closer to 2.00 am – which given the distances involved was probable – then the concentration at collision would have been closer to 0.2.
In cross examination Professor White was asked to assume an ingestion at 2.30 am and a level of 0.2 at 5.40 am, but only 0.15 at 7.05 am, that is, the lowest level in Mr Sims’ range. He agreed that on that basis it was possible that only a therapeutic level was present at the time of the accident. On appeal it was suggested that in the face of that answer the jury should have been told that it could not be satisfied beyond reasonable doubt that the appellant’s ability to drive was impaired by methylamphetamine at the time of the collision.
In my view to have given such a direction would have been quite wrong. The jury’s first task was to determine whether it was satisfied beyond reasonable doubt that at the time of the collision the appellant was driving dangerously. In answering that question it was entitled to consider the fact that the appellant had been on the road for much of the preceding thirty-eight hours and that the collision occurred on what was for him the incorrect side of the road, and that road markings suggested that the deceased had taken action to avoid collision much earlier than the appellant. It was further entitled to infer from his ingestion of methylamphetamine some time before reaching Bordertown, that he was tired. The jury was not required to reach a united decision, nor a decision to the criminal standard of proof, about the level of methylamphetamine in the appellant’s blood when the collision occurred. But even more, in evaluating that evidence it was not confined by Professor White’s concessions as to possibilities. Rather the jury was entitled to bring to account all of the evidence it accepted in evaluating the probabilities debated with both Professor White and Mr Sims and the concessions and allowances each made. Had it done so then the evidence would have justified the conclusion that there was more than a so called therapeutic dose of methylamphetamine in the appellant’s blood at 3.20 am. Consequently ground 3 must fail.
The next ground of appeal asserts that the learned trial judge failed to direct the jury in accordance with Kroon v The Queen (1991) 55 SASR 476 and Jiminez v The Queen (1992) 173 CLR 572. In Jiminez v The Queen the charge of causing death by culpable driving arose out of a single vehicle accident in which the motor car driven by the appellant, containing three passengers, failed to take a bend in the road and collided with a tree. At the scene the appellant told police that he had gone to sleep. There was no other apparent reason for the accident. There was no evidence of an extended period of driving before the incident nor any suggestion of the appellant having taken drugs or liquor. In his unsworn statement to the jury, the appellant said he did not feel like sleeping prior to the collision. The prosecution case was that the appellant must have been tired and because of that, must have fallen asleep.
The High Court held that whilst asleep the appellant’s actions could not be voluntary. If he were to be convicted, it had to be on the basis of his manner of driving leading up to the point of sleep, and that driving would have to have been sufficiently contemporaneous with the impact to be seen as a substantial cause of death. It would also have to have been objectively dangerous, as opposed to merely showing a want of due care. Whether it was to be so characterised involved consideration of factors such as the period of driving, the lighting conditions, heating and ventilation within the car, how tired the driver was and how rested he had been before setting out. The court said that if the driver had a warning as to the onset of sleep, that might evidence tiredness.
The court further held that it was open to the defendant to raise the defence of honest and mistaken belief that it was safe to drive. In doing so he would bear an evidentiary onus. Lack of any warning of the type mentioned would lay a foundation for the relevant belief. The court said (at 584):
“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.”
At trial, there was no attempt to raise the defence of honest and reasonable mistake. The evidentiary onus was not discharged. I do not take the ground of appeal, nor the argument put in support of it, to be directed to that aspect of Jiminez v The Queen. Nor was there any such attempt in Kroon v The Queen. There the driver of a large truck who had been on the road (with breaks) for some fifteen hours suddenly left his laneway and collided with an oncoming car. He denied falling asleep, but the collision was not explicable on any other basis. In particular, no use of any drug or liquor was alleged. In those circumstances, Chief Justice King identified as the central issue (at 482) “… [w]hether the appellant was at fault with respect to his falling asleep and the degree of any such fault”.
In both the cases cited the focus of the prosecution case was that the collisions were not explicable other than by reason of the drivers having fallen asleep. In those circumstances the question of a warning of the onset of sleep as demonstrating tiredness and blameworthiness in proceeding assumed some importance. In the case on appeal the prosecution case was rather more substantial. It pointed to fatigue and the use of methylamphetamine as very likely accounting for the appellant’s inability to concentrate and react appropriately to the road conditions as being likely causes of the collision. In his police interview the appellant himself observed that taking methylamphetamine to combat tiredness was a poor substitute for stopping and sleeping.
The prosecution submission to the jury was, in essence, that dangerous driving could be inferred from the fact that the appellant’s truck was on the wrong side of the road, if not on the opposite verge, in the moments leading to the collision and that the road markings showed a late and limited response by him to that fact, taken in context with the evidence of his long hours of driving leading to that point, his having taken methylamphetamine about two hours earlier (indicating that at least at that time he felt tired) and the high level of methylamphetamine in his blood at the time of the collision.
In those circumstances, emphasis on determining whether the appellant’s condition in the period preceding the collision was one of drowsiness or fatigue or methylamphetamine induced recklessness would have been misplaced. The real question was as to his condition generally having regard to any of the matters identified. Was it such that the mere fact of his driving created a real danger to the public? Just as in Jiminez v The Queen (at 579-580) it was held that the issue was 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”, so in this case any attempt to focus on the precise reason for the appellant’s rig leaving his lane – which could not, in any event, be known – would have been unhelpful.
In my view the learned trial judge correctly identified the salient features of the evidence on both sides. No redirection was sought on this topic at the conclusion of the summing up. This ground, in my opinion, fails.
The next ground complains that the learned trial judge left to the jury as an alternative basis of guilt a factual scenario contemplating that it was the deceased’s vehicle which was originally on the western (and incorrect) side of the road; that the appellant moved to the eastern side to avoid collision, only to find that the deceased simultaneously regained his correct side.
The judge directed the jury as follows:
“In your judgment as to what a competent, attentive driver could have done, should he have slowed to give the other driver time to resume his correct side of the road? Brake to a stop? Gone in some other direction? Moved his vehicle partly off the road? Or taken some other evasive action reasonably open to him? Of course, a competent, in-control, attentive driver may, in the agony of the moment, make a mistake or take a course which on later cool reflection was unwise, and if you find that objectively that is what possibly occurred, then he cannot be guilty of dangerous driving.
However, were you to be satisfied that the accused was so fatigued or affected by amphetamine that he was not reasonably competent, alert and attentive and so did or failed to do that which objectively you judge he should have done and so put himself on the wrong side of the road, then you may find that he did drive in a manner dangerous.”

This theory arose in the examination in chief of Mr Christopher Hall, a consulting engineer called by the defence to give expert evidence in respect of a reconstruction of the collision. It was put as a theory which was open in the state of the road markings and the vehicles involved.
The prosecutor put to the jury that not only was there no physical evidence that the deceased’s vehicle was ever on the wrong side of the road but that the theory did not sit easily with the physical evidence which was available (including that the tyre marks of each vehicle showed that the deceased’s vehicle was under heavy braking for more than twice as long as that of the appellant) and that the whole of the evidence and all reasonable inferences available on it pointed away from such a theory being a live one.
In these circumstances the judge’s direction that the jury could still convict in certain circumstances even though the victim had, on this theory, created the dangerous situation, was subtly different from the prosecution position and would have probably been better omitted. Having said that, in my view, the direction was technically correct, because, irrespective of the precise circumstances of the collision, the prosecution case was, as noted, that the appellant’s tiredness and ingestion of methylamphetamine left him in such a condition whereby his driving was dangerous. In the end, this was a direction on the facts and the judge left the various possibilities and theories to the jury. I cannot see how the direction could have caused a miscarriage of justice.
Although the appellant was given leave on ground 6, a complaint that the verdict was unsafe and unsatisfactory, no separate argument was addressed directed to that assertion. Having regard to the disposition of the other grounds of appeal it is, in my view, unnecessary to deal further with it.
In sentencing the appellant the judge found beyond reasonable doubt that the collision occurred because the appellant had driven onto the wrong side of the road by reason of a “dangerous failure to concentrate brought about by tiredness or fatigue” which the appellant himself had earlier recognised when he took methylamphetamine an hour or two earlier. On that basis the judge characterised the driving as reckless rather than heedless. The judge was not prepared to find beyond reasonable doubt that the level of methylamphetamine in the appellant’s blood was such that the more extreme of the effects described by Professor White were present. Nonetheless His Honour attached significance to the fact that the taking of methylamphetamine was only referable to the appellant’s recognition of his own tiredness and fatigue. I consider that these finding were well open to the judge.
The appellant was 39 years of age at the time of sentence. At the time of the offence he was subject to a suspended sentence for an offence unrelated to driving. In 1998 he had been imprisoned for other such offences. Notwithstanding those matters there was a good deal to be said in favour of the appellant, his good work record over many years and community work. The judge accepted that the appellant was genuinely remorseful. His Honour noted he had suffered injury in the collision.
I consider that the complaint as to the factual basis for sentence must fail and in those circumstances it is hard to see that the sentence of 28 months imprisonment with a non-parole period of 12 months was other than moderate. In view of the appellant’s prior convictions and the fact that his driving was to some extent affected by methylamphetamine, there can be no valid complaint about the decision not to suspend the sentence.
I would dismiss the appeal.

[2003] SASC 380

13 November 2003

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