R v Duryea - [2008] SASC 363

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DURYEA
[2008] SASC 363
Judgment of The Court of Criminal Appeal
(The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice Kelly)
23 December 2008
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PROCEDURE - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Appeal against conviction – appellant convicted of two counts of causing grievous bodily harm by dangerous driving and two counts of causing harm by dangerous driving – appellant had been awake for 24 hours prior to the accident, and had consumed alcohol, ecstasy and amphetamine – car ran off road and collided with a tree, injuring passengers – whether directions to jury were correct and sufficient.
Appeal allowed – four grounds of appeal upheld – retrial ordered.
Whether jury was properly directed on the meaning of “driving in a manner dangerous to the public.”
Held: Directions inadequate – jury was informed that manner of appellant’s driving was to be assessed objectively, but not that that assessment had to be from the standpoint of a reasonable person in the situation of the appellant at the relevant time.
Whether directions in respect of appellant’s impaired ability to drive due to alcohol, drugs or fatigue contained error.
Held: Judge erred in suggesting that driving while faculties impaired by alcohol, drugs or fatigue amounted by itself to driving in a manner dangerous to the public.
Whether propensity warning should have been given in respect of evidence that appellant had used illicit drugs.
Held: deficiency of directions did not in itself cause a miscarriage of justice but is to be taken into account when considering adequacy of directions as a whole.
Whether evidence of earlier acts of untoward driving was properly left to the jury – whether adequate directions given on that evidence – consideration of permissible uses of such evidence.
Held: evidence correctly left to jury – sufficient relationship existed between appellant’s earlier driving and his driving at the time of the accident. Directions inadequate – Judge ought to have explained in more detail the permissible and impermissible uses of the evidence – jury should have been warned against engaging in propensity reasoning.
Criminal Law Consolidation Act 1935 (SA) ss 19A, 19B; Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA) s 9; Road Traffic Act 1961 (SA) s 45; Australian Road Rules r 132, r 134, referred to.
R v Coventry [1938] SASR 79; R v Mayne (1975) 11 SASR 583; R v Kamleh (1990) 159 LSJS 268; R v Greenham (1997) 25 MVR 495; R v Buchanan [1966] VR 9; R v D (1997) 58 SASR 571; R v Scott (2003) 141 A Crim R 323; R v Fischer (1996) 23 MVR 507, applied.
R v Hendriksen (2007) 98 SASR 571; R v Martin (1981) 4 A Crim R 302; R v Horvath [1972] VR 533, discussed.
Pfeiffer v The Queen (Unreported, Court of Criminal Appeal of South Australia, King CJ, Cox and Olsson JJ, 11 December 1990); R v Leaf-Milham (1987) 47 SASR 499; R v Hochbaum (2004) 41 MVR 443; R v O'Neil (1988) 48 SASR 51; R v Glover (1987) 46 SASR 310; R v Hulse (1971) 1 SASR 327; R v Lewis [1913] VLR 227; HML v The Queen (2008) 82 ALJR 723, considered.

R v DURYEA
[2008] SASC 363
Court of Criminal Appeal: Anderson, White and Kelly JJ

ANDERSON J: I would allow the appeal and set aside each of the convictions for the reasons given by White J. I would order a re-trial.

WHITE J: On 19 February 2005, the appellant’s car ran off Woods Hill Road, Horsnell Gully, and collided with a tree. Each of his four passengers was injured, two quite seriously. The appellant was charged with, and found guilty by a District Court jury of, two offences of causing grievous bodily harm by driving in a manner which was dangerous to the public,[1] and of two offences of causing harm by driving in a manner which was dangerous to the public.[2] There were four offences because the injury to each passenger was the subject of a separate charge.[3]
[1] Criminal Law Consolidation Act 1935 (SA) (CLCA) s 19A(3) and (4). Section 19A was amended by the Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA) s 9 but those amendments did not apply to the circumstances of this case.
[2] CLCA s19A(3) and (4).
[3] CLCA s 19A(7).
The appellant appeals against those convictions on 10 separate grounds. Save for Ground 10, which is a complaint that the verdicts are unreasonable and unsupported by the evidence, each of the other grounds complains of an error or omission in the trial Judge’s directions to the jury.
Circumstances of the offences
The collision occurred at about 7.20 am on a Saturday morning. The appellant had worked the whole of the previous day. In the evening, he socialised at various places in and about the city of Adelaide, and from about midnight at a hotel in Hindley Street. He did this until approximately 6.00-6.30 am on the Saturday morning (although he had left the hotel about one hour earlier). During the course of the night, he consumed one ecstasy tablet (at about midnight, possibly a little later) and one drink of bourbon (at about 1.00 am). At about 6.00–6.30 am, the appellant suggested to his passengers that they go for a drive in the Adelaide Hills, and they commenced to do so. At one stop during the course of the drive, the appellant and his passengers consumed a small quantity of amphetamine.
The collision occurred when the car was negotiating a right-hand bend on Woods Hill Road. The speed limit on the road was 80 kilometres per hour, but there was an advisory speed sign for the bend of 40 kilometres per hour. Light rain was falling at the time.
Almost immediately before his car ran off the road, the appellant had overtaken another car. He had had to cross double white lines in order to effect the overtaking. Before overtaking, he was travelling at about 70 kph but may have increased that speed a little while overtaking. The driver of the overtaken car has since died and did not give evidence at trial. His passenger, Mr Randle, said that he did not consider that the appellant’s speed was excessive for the circumstances, estimating it at between 60 and 70 kph. He described the appellant’s car returning to the correct side of the road after the overtaking manoeuvre and then commencing, almost immediately, to follow the road into the right-hand bend. As the appellant’s car did so, Mr Randle saw the rear end begin to “fishtail” and the appellant then lose control of the car.
There was no mechanical explanation for the appellant’s loss of control. Nor, apart from the wetness of the road surface, could it be attributed to the condition of the road. An accident investigator, Mr Mitton, considered that the cause of the collision was that the appellant had been travelling too fast for the radius of the bend, and that his speed had caused the rear tyres to lose traction, resulting in his loss of control. Mr Mitton assessed the road as turning 65° to the west at the bend which he described as a “moderate to sharp” bend.
Analysis of a sample of blood taken from the appellant at 8.43 am on 19 February 2005 revealed 0.19 mg/l of methylenedioxy-methamphetamine (ecstasy), but did not reveal any alcohol. A pharmacologist, Professor White, gave evidence as to the effect of ecstasy consumption. He said ecstasy can impair the faculties of a driver. In particular, it can cause euphoria, leading to over-confidence and an increase in risk-taking. He also said that after some six hours from the time of consumption, the effects of the ecstasy would be diminishing. However, in that circumstance, any fatigue of the driver may be exaggerated, and his or her ability to concentrate may be impaired.
No evidence was led to indicate that the appellant had amphetamine present in his blood, nor was there any evidence about the effects which amphetamine may have.
The prosecution case was that the appellant’s driving should be regarded as dangerous, because he was driving at a speed which was too fast for the wet, winding road. Further, he was driving at a time when he was fatigued by a lack of sleep, and while he was affected, to some extent, by the ecstasy which he had consumed in the early hours of the morning. The prosecution submitted that the fact that the appellant was driving in a manner which was dangerous to the public was evidenced by the fact that, in contravention of r 132 and r 134 of the Australian Road Rules, he had crossed the double white lines on Woods Hill Road in order to overtake the other vehicle and, further, because he had not noticed the advisory speed sign of 40 kph.
Ground One: The directions as to driving in a manner dangerous to the public
The Judge directed the jury as to the element of the offence of “driving in a manner dangerous to the public” in the terms which follow. For ease of later reference, I have numbered the relevant paragraphs of the summing up.
[1]     The best way to explain what is meant by “driving in a manner dangerous to the public” is to distinguish it from driving without due care or attention which is negligent or careless or inattentive driving.
[2] When we venture out on to the road, whether it be as a driver, a passenger, or a pedestrian, we will often encounter a driver who is inattentive and careless. We accept that as one of the ordinary risks of being on the road, or put another way, the risks of modern driving. In particular, we accept that other drivers from time to time will make mistakes due to inadvertence and human error, and have minor or temporary lapses in concentration. Such careless driving is nonetheless an offence against s.45 of the Road Traffic Act. That section provides, in particular, that it is an offence to drive a motor vehicle without due care or attention or without reasonable consideration for other persons using the road. The sort of driving which constitutes this Road Traffic Act offence is, for example, turning without indicating, failing to give way and failing to stand.
[3]     However, “dangerous driving”, within the meaning of the four offences charged before you, is a manner of driving which imposes on other road users a risk which a reasonable person would recognise as being a real danger to the public. It involves a risk of injury to others which exceeds the ordinary risks of the road. It is of a character which exceeds ordinary carelessness and should not be tolerated.
[4]     The question of whether a person drove in a manner dangerous to the public must be answered by not only examining the driving itself, but also all the other surrounding circumstances. Those circumstances include:
whether the driver was affected by alcohol or drugs, or
was fatigued by a lack of sleep
such that his or her ability to control the motor vehicle was likely to be appreciably impaired.
[5]     So in this case you look at not only the driving itself, but also the driver.
[6]     The ordinary risks of the road do not include putting up with drivers whose driving faculties are impaired by substances such as alcohol or drugs, or impaired by fatigue, or a combination of any of those.
…
[7]     The test for dangerous driving is what the law calls an objective test. That is, you put aside considerations of what the driver might or may have appreciated about his driving.
[8]     Rather you take into account all the circumstances, and you as reasonable members of the community assess whether, what is proven, establishes that the driving is beyond the ordinary negligence commonly encountered on the road, and is dangerous in the sense of constituting a serious threat to others.
Ground one is a complaint that these directions were not sufficient. While the directions informed the jury that the manner of the appellant’s driving was to be assessed objectively, they did not indicate that that assessment had to be from the standpoint of a reasonable person in the situation of the appellant at the relevant time. It was submitted that the jury would have been left with the impression that the appellant was to be convicted if they were satisfied that, considered objectively, his manner of driving was dangerous, irrespective of whether that danger ought to have been recognised by a reasonable person in the appellant’s situation.
The question whether particular driving is to be characterised as “driving in a manner dangerous to the public” is to be determined objectively. It is a question of whether a reasonable person would regard the accused’s manner of driving as involving a risk of injury to other road users which exceeds the risks arising from the ordinary incidents of road use. At least since R v Coventry,[4] it has generally been considered that the objective test should be applied by inquiring whether an ordinary person in the situation of the driver would have recognised that his or her driving was dangerous to the public. In R v Mayne, [5] Bray CJ with whom Hogarth and Jacobs JJ agreed, referred to a passage from R v Coventry in which it was said that driving in a manner dangerous to the public is:
The act of driving in a manner which any ordinary person (in the situation of the driver) would recognise as dangerous, in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road – the common place incidents of the use of the highway in question under the conditions of modern transport by fast–moving vehicles.[6]
[4] [1938] SASR 79.
[5] (1975) 11 SASR 583.
[6] [1938] SASR 79 at 86.
Bray CJ then said:
In this State it has been customary ever since [R v Coventry] to direct juries in the sense of that quotation.
Thus it is customary to distinguish between such departures from the proper standard of care as may be regarded as ordinary risks of the road, even if they would found a civil action, and such a manner of driving exposing other road users to such a risk as “any reasonable person in the situation of the driver ought to recognize as a real danger to the public”.[7] [Emphasis in original].
[7] (1975) 11 SASR 583 at 585.
Similarly, King CJ in R v Kamleh[8] said:
The crime is committed by the act of driving in a manner which any reasonable person in the situation of the driver would recognise as dangerous in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public. Ordinary risks of the road include those arising from the sort of faulty driving and lack of care which must be expected, due to human frailty, from time to time, from the ordinary driver. The sort of driving which constitutes this crime is more serious then that. It is driving which a reasonable person in the situation of the driver would understand to be such as would give rise to a serious risk of injury to members of the public going beyond the ordinary risks of the road. It is driving which is therefore fit to be regarded as a serious crime. If the driving, although negligent, does not go beyond what might fairly be regarded as an ordinary risk of the road, a crime of causing death or bodily injury by dangerous driving is not committed but the driver is guilty of driving without due care or attention contrary to section 45 of the Road Traffic Act, a verdict of guilty of which offence is open to the jury by virtue of section 19b(2) of the Criminal Law Consolidation Act.[9] [Emphasis added]
[8] (1990) 159 LSJS 268.
[9] Ibid at 269-70.
However, as the judgments in Kamleh and in R v Hendriksen[10] indicate, while an appropriate direction should usually indicate that the manner of driving is to be assessed having regard to the ordinary or reasonable person in the situation of the accused driver, an omission to use those words is not necessarily an error of law.[11] The whole of the directions must be considered. There is more than one way in which a jury may be properly directed as to the way in which the objective test is to be applied. In Hendriksen, Doyle CJ, with whom Kelly J agreed, said that the guidance given by Bray CJ in Mayne is not to be treated as a statute having to be followed to the letter.[12] However the Chief Justice also said:
It would have been better if the Judge had followed more closely the approach identified by Bray CJ in R v Mayne (1975) 11 SASR 583, drawing on the direction given by Napier CJ in R v Duncan.[13]
[10] [2007] SASC 304; (2007) 98 SASR 571.
[11] Ibid at [2], 573 per Doyle CJ; at [46], [61]; 581, 585-6 per Layton J.
[12] Ibid at [2], 573.
[13] Ibid.
What is important is that the jury be directed appropriately as to the distinction between a departure from the proper standard of care which may be recognised as an ordinary risk of road use, on the one hand, and driving in a manner which a reasonable person in the accused’ position would recognise as dangerous, on the other. Generally, this is best done by referring to a reasonable person in the position of the accused, but it is not essential.
Thus, although on the authorities it is conventional and preferable for a jury to be directed that the objective test is to be applied having regard to the situation of the accused driver, it is not, by itself, an error of law to fail to do so. Such an omission may however contribute to an overall inadequacy in the directions.
In the present case, the directions of the Judge, particularly those in the paragraphs which I have numbered [7] and [8] would, in my opinion have suggested to the jury that it was the view which they, sitting as jurors, took of the appellant’s driving which was critical. The jury was not encouraged or directed by other passages in the summing up to assess the appellant’s manner of driving objectively by reference to his situation at the time. The direction in the paragraph numbered [8] would, in my respectful opinion, have indicated to the jury that it was appropriate for them to consider the manner of driving from their perspective as reasonable members of the community, rather than considering whether a reasonable person in the situation of the appellant ought to have recognised that his driving constituted a danger to the public which went beyond the ordinary risks of the road. In my respectful opinion, the Judge’s directions were in this respect incomplete, and the jury was not instructed appropriately.
Ground Two: Distinguishing driving without due care
The appellant contended that the Judge’s directions did not adequately distinguish driving without due care from driving in a manner dangerous. He submitted that the examples given by the Judge in the paragraph which I have numbered [2] were unhelpful, because they bore no relationship to the circumstances of his case. The jury should, it was submitted, have been told directly to distinguish mere inadvertence or momentary lapses in concentration, even when producing serious consequences, from driving in a manner dangerous.
It is clear that a direction which distinguishes driving without due care such as that resulting from momentary inadvertence and driving in a manner dangerous is required but I do not consider that, viewed as a whole, the Judge’s directions failed in this respect. The direction in the paragraph which I have numbered [2] indicated clearly enough that “inadvertence and human error” and “minor or temporary lapses in concentration” fell into the category of driving without due care, and not driving in a manner dangerous. The direction in the paragraph numbered [3] identified dangerous driving as driving “which exceeds ordinary carelessness”. Further, when later summarising the prosecution and defence cases, and when making his concluding remarks to the jury, the Judge several times distinguished conduct resulting from “mere carelessness” from dangerous driving. I consider that the jury would have understood that a momentary inadvertence or a momentary loss of concentration by the appellant was not sufficient for the prosecution charges to be sustained.

Further, I consider that the examples of driving without due care given by the Judge were of a general kind and would have been understood as such by the jury. It was not necessary for him to give examples related more closely to the circumstances in the appellant’s case.
I would not uphold this ground of appeal.
Ground Three: Impaired ability to drive
The appellant submitted that the effect of the directions in the paragraphs numbered [4], [5] and [6] was to suggest to the jury that he should be found guilty of the s 19A charges if it was satisfied that his ability to drive was impaired by alcohol, drugs or fatigue. He submitted that a direction to this effect was incomplete because the judge should also have directed the jury that it had to be satisfied that any impairment from alcohol, drugs or fatigue had in fact manifested itself in his manner on driving. No authority was cited to support this submission.
Evidence that a driver was affected by alcohol or a drug may be relevant to a s 19A charge in at least two ways. First, driving a vehicle on a road while so affected by alcohol or a drug as to be incapable of exercising effective control of the vehicle is itself driving in a manner dangerous to the public.[14] In such cases the driving may be characterised as dangerous even though the way in which the defendant drove, viewed objectively, was unexceptional.[15] Such cases are likely to be uncommon and clear evidence of the incapacity would have to be adduced.
[14] Pfeiffer v The Queen (unreported, Court of Criminal Appeal of South Australia, King CJ, Cox and Olsson JJ, 11 December 1990) cited by Cox J in R v Greenham (1997) 25 MVR 495 at 497.
[15] R v Greenham (1997) 25 MVR 495 at 498 per Cox J.
The second use of evidence of alcohol or drug consumption occurs when the evidence does not establish an actual incapacity to drive but simply that the alcohol or drugs may have had the effect of impairing the driver’s faculties. If the jury is satisfied that there was some impairment of the faculties by alcohol or drug consumption, it may use that evidence when considering whether the manner of driving which is proved by the evidence was dangerous. The jury may conclude that impairment caused by the alcohol or drugs may explain the manner of driving. It may conclude that the impairment increased the risks arising from the manner of driving, for example, by reducing the driver’s ability to respond to any change of conditions or circumstances which may arise. That is why alcohol or drug consumption, and the impairment which it may have produced are to be considered as part of all the circumstances of the driving. In R v Greenham, Cox J said:
The relevant element of the offence created by s 19a is the dangerous driving, not the cause of it. The jury will be called upon to make a qualitative judgement about a defendant’s manner of driving in the light of all the circumstantial evidence. Typically there will be one or more acts of overtly bad or at least questionable driving – high speed, veering across the road, poor look out and so on – and sometimes evidence of a causative or explanatory kind as well. For instance, the defendant may have told someone before he got into his car that he was having trouble keeping awake, or his driving error may have coincided with his using a mobile telephone, or there may be evidence of an alcohol intake which, according to an expert, could have effected the defendant’s driving faculties. The jury may take the alcohol evidence into account if, after considering all the evidence including the act or acts of driving, they are satisfied that the alcohol had an influence on the defendant’s manner of driving.[16]
[16] Ibid at 500.
See also R v Leaf–Milham,[17] R v Hochbaum[18] and R v Buchanan..[19]
[17] (1987) 47 SASR 499.
[18] [2004] SASC 230; (2004) 41 MVR 443 at [26] – [27]; 447.
[19] [1966] VR 9 at 12.
In my opinion, the directions in the present case in the paragraphs numbered [4] and [5] reflected the law as described above. They told the jury, in effect, that they should consider whether the appellant’s ability to control his car was likely to be “appreciably impaired” by reason of alcohol or drugs or, for that matter, by lack of sleep. Contrary to the appellant’s submissions, the jury did not have to be satisfied that an impairment of the faculties produced by alcohol or drug consumption (if they were satisfied that such impairment existed) had manifested itself in the actual manner of driving.
However, the direction in the paragraph numbered [6] went further. That direction tended to suggest that driving while the faculties were impaired by alcohol, drugs, or fatigue, alone or in combination, amounted by itself to driving in a manner dangerous to the public. The judge was correct in saying that an ordinary risk of the road does not involve putting up with drivers whose faculties are impaired in that way, but, in my respectful opinion, incorrect in suggesting that those conditions by themselves would indicate that the driving could be characterised as driving in a manner dangerous to the public. As was pointed out by Cox J in Greenham, the relevant element of the s 19A offence is the dangerous driving, not the cause of it. This is not one of the rare cases in which a defendant was so affected by alcohol or drugs that he was incapable of exercising effective control of a vehicle, such that driving while in such a state itself amounted to dangerous driving. It is a case in which evidence of the appellant’s alcohol and drug consumption was relevant to the circumstances of the driving but was not capable, by itself, of establishing that the appellant had driven in a manner dangerous to the public.
Accordingly, I would uphold this ground of appeal.
Ground Four: Directions on the alternative verdict
Ground four complains of the Judge’s directions with respect to the alternative verdict of driving without due care. The Judge directed the jury appropriately as to the availability of the alternative verdict,[20] and as to the elements of the offence of driving without due care. The Judge then said:
You will only come to consider this alternative if you have concluded that the driving here has not been proven to be driving in a manner dangerous to the public, and so you will have reached verdicts of acquittal on all four counts.
If you reach this stage, then I would suggest to you that you may have no difficulty in concluding that a driver of a vehicle under the influence of ecstasy who is in charge of a vehicle which veers off the road and crashes into a tree such as happened here, in the absence of any exculpatory explanation, has driven without due care or attention under s.45 of the Road Traffic Act. It is a matter for you. You will only come to that if you have decided that the accused is not guilty of the four counts on the Information.
[20] CLCA s 19B(3) as in force on 19 February 2005.
The appellant submitted that the second paragraph just quoted was, in effect, a direction to the jury that he was, at the least, guilty of driving without dure care and, further, that he had been under the influence of ecstasy. The Judge had, it was submitted, foreclosed the jury’s determination of these issues. In addition, it was submitted that the words “in the absence of any exculpatory explanation” had the affect of reversing the onus of proof, ie, placing the onus on the appellant to demonstrate that the collision was not the result of careless driving. The appellant also submitted that the directions quoted had the effect of encouraging the jury to focus on the consequences, rather than the manner, of his driving. As I understood the submission, it was that although these directions were given in relation to the possible alternative verdict, and not in relation to the offences of which the appellant was found guilty, they would have coloured the jury’s consideration of the principal charges.
The authorities concerning the entitlement of a trial judge to comment to a jury on the evidence were reviewed extensively by Cox J in R v D.[21] It is not necessary to repeat that review. Those authorities indicate that a trial judge is entitled to comment on the evidence, whether favourably to the prosecution or the defence, so long as the effect of the remarks is not to overbear the jury. Providing that a summing up makes clear to the jury that the decision is theirs, exhibits a judicial balance and is not such as to overawe the jury, a trial judge is entitled to remark, including by remarking strongly, on the evidence and the conclusions which may be drawn from it. In addition to R v D, I refer in this respect to the judgements of King CJ in R v O’Neill[22] and in R v Glover. [23]
[21] (1997) 68 SASR 571 at 578-85.
[22] (1988) 48 SASR 51 at 62.
[23] (1987) 46 SASR 310 at 313-4.
In the present case, at the outset of his directions, the Judge told the jury in conventional terms that they were the sole judges of the facts and that “no-one, judge or counsel, can impose their view about the facts on you.” Further, the passage which the appellant impugns was framed in terms of a suggestion to the jury and included a reminder to the jury that the decision concerning the alternative verdict of driving without due care was a matter for them. I agree with the submission of counsel for the Director that the impugned direction was not such as to overawe the jury and was not such that the jury may have been under the impression “that there [was] really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge’s view”.[24]
[24] R v Hulse (1971) 1 SASR 327 at 335.
I agree with the appellant that the Judge’s reference to “the absence of any exculpatory explanation” did suggest a reversal of the onus of proof. In that respect it is unfortunate. The jury had been instructed earlier in appropriate terms about the applicable onus and standard of proof but, when discussing the alternative verdict, the Judge made no other reference to the onus of proof. It is possible therefore that the impugned directions may, if the jury had been required to consider the alternative verdict, have undermined the direction which the Judge had earlier given regarding the onus of proof.
However, the fact of the matter is that the impugned direction was given in relation to the available alternative verdicts. The appellant was not convicted of the alternative verdicts. Instead he was convicted, by unanimous verdicts, on the principal charges. No criticism could be made of the Judge’s directions with respect to the onus and standard of proof with respect to those charges. The jury was told explicitly that the appellant did not have to prove anything. I am not satisfied that the impugned direction given in relation to the alternative verdict would, in relation to the principal counts, have caused the jury to take any other view.
I would not uphold this ground of appeal.
Ground Five: Absence of directions concerning the expert evidence
The prosecution led expert evidence from Professor White concerning the effects of ecstasy, and from Mr Mitton, the accident investigator. I have referred earlier to relevant aspects of the evidence of Professor White.
In addition to expressing his opinion as to the cause of the car running off the road, Mr Mitton suggested that the appellant’s car had commenced its turn into the bend from a position on its incorrect side of the road. This could only have occurred if the appellant had turned into the bend before returning to his correct side of the road after overtaking the other vehicle or if, having returned to the correct side of the road, it veered onto the incorrect side of the road. Mr Mitton seems to have thought that it was the former, and suggested that commencing the turn on the incorrect side of the road had had the effect of making the turn tighter than would have otherwise been the case. As I understand it, Mr Mitton’s opinion in this respect derived principally from his assessment of certain tyre marks on the road surface shown in photographs taken by a police accident investigator.
Although there was no other expert evidence contradicting that of Mr Mitton, his opinion that the appellant had commenced the turn while on the incorrect side of the road was not supported by the evidence of either Mr Randle or the appellant.
The Judge did not give the jury any specific directions relating to their assessment or use of the expert evidence. The appellant contended that the directions were not sufficient in this respect.
The respondent accepted that it would have been desirable for the Judge to have given the jury directions concerning the expert evidence. I respectfully agree. It was appropriate for the jury to be instructed that it was not bound to accept the evidence of either Professor White or Mr Mitton simply because of their expertise. It was also appropriate for the jury to be directed that they should be satisfied that the factual basis for the experts’ opinions had been established by other evidence, whether their own or the evidence of others.
In his general directions, the Judge had told the jury that it was for them to assess what evidence they regarded as truthful, and what evidence they regarded as reliable and accurate. Nevertheless it would have been desirable for the Judge to have given explicit directions of the kind outlined earlier.
Neither counsel addressed the question of whether a failure to give directions concerning the manner of assessment and use of expert evidence amounted to an error of law. In these circumstances and because I consider that the appeal must be allowed on other grounds, I will refrain from addressing that issue. For similar reasons, it is also unnecessary to consider whether this particular omission in the directions by itself occasioned a miscarriage of justice in the trial.
Ground Six: Absence of directions concerning use of illicit substances
As noted earlier, the appellant’s use of the illicit drugs ecstasy and amphetamine were relevant matters for the jury to consider. It was appropriate for evidence of the appellant’s consumption of those drugs to be admitted at the trial.
The appellant submitted however that because possession of amphetamines and ecstasy is unlawful, a specific direction should have been given to the jury. It should, the appellant submitted, have been directed that it should not regard his use of illicit drugs as indicating that he was a person of bad character and that it should not reason that his willingness to use illicit drugs indicated that he was the kind of person who would engage in dangerous driving of the kind alleged by the prosecution.
The Judge did not give any directions to this effect. The respondent accepted that it would have been desirable for the judge to do so. Again, I respectfully agree.
Neither counsel suggested that it was an error of law for the judge not to have given a direction of the kind outlined. Nor is it clear that the absence of such a direction would have caused a miscarriage of justice in the trial. The appellant’s illicit drug use was of a relatively minor kind. In my opinion it may be doubted that the jury would have reasoned that that relatively minor use indicated that the appellant was the kind of person who was likely to engage in driving in a manner which was dangerous to the public, or was of bad character.
I do not consider that this deficiency in the directions, considered by itself, has caused a miscarriage of justice but it is a matter to be taken into account when considering the adequacy of the directions as a whole.
Ground Seven: Absence of directions concerning the appellant’s fatigue
At the time that his vehicle ran off the road, the appellant had had no sleep for approximately 24 hours. There was therefore an obvious issue as to whether his fatigue may have contributed to his manner of driving.
As noted earlier, in paragraph number [4] of the summing up the Judge told the jury that the circumstances which they should consider included that of whether the appellant was so fatigued by a lack of sleep that his ability to control the car was likely to have been appreciably impaired. The Judge reminded the jury of the evidence that the appellant had been without sleep for approximately 24 hours and of the respective submissions of counsel about his lack of sleep. The appellant submitted that that the Judge should have gone further and directed the jury that they should consider whether they were prepared to find he was fatigued and, if so, the effect which that fatigue had had on his driving.
This ground of appeal is closely linked with Ground three, which I would uphold. The evidence concerning the appellant’s possible fatigue could not be considered separately from the evidence about his consumption of ecstasy, especially having regard to the evidence of Professor White. Although I consider that the effect which fatigue has upon driving skills is a matter within the ordinary knowledge and experience of jury members, the error in the paragraph which I have numbered [6] means that this ground of appeal should also be upheld.
Ground Eight: Other acts of driving
Two of the passengers were called to give evidence by the prosecution and gave some description of the appellant’s driving before the collision occurred. Ms O’Reilly gave the following evidence:
QCan I ask you about [the appellant’s] manner of driving through the hills, could you describe how he was driving.
AHe was driving fast – yeah, just - any sharp turns.
QTaking sharp turns.
AYes.
QWhat was happening to the car when he was taking sharp turns.
AIt was drifting a little bit.
QWhat do you mean by ‘drifting’.
ABack wheels sliding across the road.
QAt any stage did you or anybody else say something to [the appellant] about this.
AI think Kelly might have said something.
QDid you hear what she said.
AI don’t know, I think she might have said ‘slow down’, but I don’t know, it’s a bit fuzzy.
QDo you remember the collision itself.
ANo.
Q Can we go back, what are your last memories about [the appellant’s] driving prior to the collision.
AIt was just – just fast, but then again I was – I did take an ecstasy tablet, so I can’t be really sure about that.
QIt appeared fast to you, did it.
AYeah.
QYou think that might be because of the drug you were using.
AYeah, I think so. Just – yeah, just a bit blurry to me.
A second passenger, Ms Papadoulis gave the following evidence:
QCould I ask you about driving in the hills, how would you describe [the appellant’s] driving in the hills.
ABob’s driving in the hills, well, he was speeding a bit early in the night and I think he made one drift at one – in the – during the night, but that wasn’t in the hills.
QSorry, made one drift.
ALike, I don’t know speeding – I don’t know, I’m not really good with cars it was either a burnout or drift or something, but it was just a little bit of speeding, really.
QWhat do you mean by ‘drift’.
ATurning corners, you know, you’re turning corners, and, you know brake when you turn corners.
QWhat did that do to the car.
AWhat, when? What, in the hills or –
QWhere did that happen.
AI don’t know where that happened, it was during normal driving so I don’t know about what location it was.
QAre you able to say whether that happened in the city or the hills.
AProbably the city.
The appellant submitted that the jury should have been directed to ignore this evidence. It was said that it was not sufficiently proximate to the incident when the car ran off the road and was so vague as not to be of probative value. The appellant submitted in the alternative that, if the evidence was left to the jury, the Judge should have given a strong warning against using the evidence in a form of propensity reasoning.
General principles

Evidence of the manner of driving of an accused prior to the accident in relation to which they are charged is relevant and admissible if there is a sufficient relationship between that earlier driving and the accident.[25] In R v Scott,[26] Winneke P set out the general principle:
There is no magic about this type of evidence. Whether the lack of care and attention in driving at one point can be logically probative of lack of care and attention at another point must ultimately depend upon whether the two points are so closely related in time, distance and circumstance to allow the tribunal of fact to draw an inference that the manner of driving at the second point was of the same character as the manner of driving at the first point.[27] [Emphasis added]
[25] R v Buchanan [1966] VR 9 at 12; R v Scott [2003] VSCA 55; (2003) 141 A Crim R 323 at [11], 329.
[26] [2003] VSCA 55; (2003) 141 A Crim R 323.
[27] Ibid at [11], 329.
A sufficient relationship between the prior driving and the charged driving has been held to exist when a defendant was affected by liquor at both times;[28] when a defendant was observed driving fast shortly before an accident caused by driving at excessive speed;[29] and when the earlier incident occurred only a few minutes before the accident.[30]
[28] R v Fischer (1996) 23 MVR 507; R v Buchanan [1966] VR 9.
[29] R v Lewis [1913] VLR 227; R v Martin (1981) 4 A Crim R 302.
[30] R v Scott [2003] VSCA 55; (2003) 141 A Crim R 323.
Since at least 1913,[31] courts have rejected the suggestion that this type of evidence is propensity evidence. It may be used in various permissible ways.
[31] R v Lewis [1913] VLR 227.
When the prosecution case is that the defendant’s ability to drive was impaired by alcohol or drugs, evidence of prior incidents can be used to show how, and to what extent, the defendant’s driving was affected by those substances.[32] This sort of evidence can also be used as evidence of the defendant’s general manner of driving on the day in question.[33] Evidence that a vehicle was travelling at an excessive speed shortly before an accident may be used to help prove that the vehicle was travelling at a similar speed at the time of the accident.[34]
[32] R v Fischer (1996) 23 MVR 507; R v Buchanan [1966] VR 9.
[33] R v Scott [2003] VSCA 55; (2003) 141 A Crim R 323.
[34] R v Lewis [1913] VLR 227; R v Martin (1981) 4 A Crim R 302.
In R v Buchanan,[35] a decision of the Victorian Full Court, an accident occurred when the defendant took a corner very fast and on the wrong side of the road. There was evidence that he had been drinking. Two witnesses gave evidence that about they had seen the defendant take a corner very fast and on the wrong side of the road about 35-40 minutes before the accident. Winneke CJ, holding that the evidence was correctly admitted, said:
once there was evidence … that at the relevant time [the defendant] was affected by liquor he had taken, the incident to which the [witnesses] testified was relevant to show in what way that liquor was affecting him in his management of the car, and, in my opinion, the incident to which the [witnesses] referred was not so isolated, either in distance or time, as to deprive their evidence of the relevance to which I have referred. In other words, there was, in my opinion, a connecting link between the incident to which the [witnesses] referred and the driving of the applicant at the time of the accident, and that connecting link was, if the jury accepted the evidence, that the applicant was affected by alcoholic liquor, and the earlier incident could be used by the jury as an indication that the applicant was affected in his judgment and his management and control of the car.[36]
[35] [1966] VR 9.
[36] Ibid at 12.
In R v Fischer,[37] this Court adopted the reasoning in Buchanan. In that case, the defendant’s vehicle struck the rear of another vehicle and then, in an attempt to overtake that vehicle, collided almost head-on with a third vehicle. There was evidence that the defendant had been drinking. Two witnesses gave evidence that, about 35 minutes before the accident, the defendant had overtaken them at about 130 kph in an emergency stopping lane. A short time later the witnesses saw two men (presumably the defendant and his passenger) standing next to their parked car, appearing unsteady on their feet. Later still the car again overtook the witnesses’ car at high speed, with the passenger leaning out of the window.
[37] (1996) 23 MVR 507.
On appeal, it was held that this evidence was correctly admitted. Millhouse J (with whom Doyle CJ and Williams J agreed) said that the evidence was admissible to show “the extent to which the appellant’s judgment was affected and the extent to which his control of the car was affected by alcohol.”[38] Millhouse J did not regard the Buchanan reasoning to be restricted to cases in which, as in Buchanan, the earlier bad driving was practically identical to the driving that caused the accident.
[38] Ibid at 508.
In R v Scott,[39] the defendant was involved in a minor collision with another vehicle but continued to drive without stopping to ascertain the effects of that collision. One or two kilometres further on, he was involved in a collision with a motorcycle. He was charged in relation to the accident involving the motorcycle but not in relation to the earlier collision. On appeal, the Victorian Court of Appeal held that evidence of the earlier collision had been correctly admitted as evidence of the defendant’s manner of driving around the time of the accident. Winneke P said:
The two collisions were so closely connected in time and distance as to make the lack of control and attention inherent in the first collision (if the jury so found it) logically probative of the Crown’s contention that the fatal collision was caused by driving of a similar character which in law amounted to “gross negligence”.[40]
[39] [2003] VSCA 55; (2003) 141 A Crim R 323.
[40] Ibid at [11], 329.
In R v Horvath[41] the evidence was held inadmissible because there was no sufficient relationship between the earlier driving and the later accident. Apart from the fact that the earlier bad driving occurred 45 minutes and 30 miles away from the time and place of the accident, the earlier driving was somewhat different from the later driving which caused the accident. The earlier instances of dangerous driving consisted of overtaking over double white lines and when approaching the crest of a hill. The accident was caused by the defendant’s car gradually, and for no apparent reason, veering onto the wrong side of the road. The defence case was that the defendant was asleep at the time of the accident. Winneke CJ, delivering the judgment of the Court, said:
Where acts of driving are substantially separated in time and place, evidence of one is not, in our opinion, evidence of negligence of the other, in the absence of some connecting link …. Failure to exercise care, depending, as it does, on the particular circumstances of the occasion is, in our view, not a constant feature of human behaviour and, accordingly, failure at one place and time not forming part of the occasion in issue does not, in itself, tend to prove failure at another time and place.[42]
[41] [1972] VR 533.
[42] Ibid at 538.
I do not understand the reasons of the High Court in HML v The Queen[43] to require a modification of the principles stated in these cases.
[43] [2008] HCA 16; (2008) 82 ALJR 723.
Appropriate directions
As to the form of direction which is appropriate in these cases Winneke J said in Buchanan:
If the evidence is admissible and it is evidence of the kind of which some misuse by the jury may be possible, it is a matter for the discretion of the trial judge as to whether he gives [a direction as to the precise way in which the evidence could be used, and warning against possible misuse of the evidence] or not. In the present case the judge did not do so, although in the course of his charge he indicated that the use to be made of the evidence was along the general lines to which I have referred … [T]he judge indicated to [the jury] that it was open to them to use the evidence to indicate how the alcoholic liquor the applicant had taken was likely to have affected his driving at the time of the collision.[44]
In R v Fischer,[45] the following direction was given:
The sole and only permissible basis of that material in the case before you is so that, if you accept it, it may be resorted to in order to put it in context as to the accused’s manner of driving at the time of the collision, most particularly on the issue of whether you are satisfied beyond reasonable doubt that the accused’s mental and physical faculties were impaired by alcohol.
This was accompanied by a strong warning against using the evidence for the purpose of propensity reasoning.
It must be stressed at the outset that evidence of this type must not, under any circumstances, be viewed by you as evidence of a disposition of the accused or of an ongoing tendency on the accused’s part to drive dangerously from which you could legitimately proceed to reason that it directly tends to suggest that the accused was guilty of driving dangerously on the occasion which is the subject of the present charges; namely, the collision with the [victims’] car. It would be quite wrong, and unfair, to reason that, just because the accused, if it be the accused, had been seen to drive in a reprehensible manner on previous occasions some 30 minutes earlier, the accused, therefore, drove in a dangerous manner to cause the death or the bodily injury charged in the offences alleged against him.
[44] [1966] VR 9 at 13.
[45] (1996) 23 MVR 507.
On appeal, this Court did not comment one way or the other on the adequacy of that direction.
In R v Scott,[46] the trial Judge stressed that the defendant was not charged with the earlier collision and that the jury must focus on the circumstances of the collision with the motorcycle. He told the jury:
You are the judges of the facts and as so (sic), given the close proximity in time, in space and circumstances between the happening of the first accident and the happening of the second accident, may use the circumstances of the happening of the first accident for the limited purpose of providing you with evidence as to the general manner of the driving of the accused on the day and time in question, and on the road in question, and indeed you may think that the first accident happened moments, or minutes, before the happening of the second accident.
[46] [2003] VSCA 55; (2003) 141 A Crim R 323.
On appeal this direction was held to be appropriate although Winneke P described the direction as “favourable” to the defendant.[47]
[47] Ibid at [15], 332.
In R v Martin,[48] a witness gave evidence of seeing the defendant, some time before the accident, overtaking in an unsafe manner and speeding. The accident occurred when the defendant, due to his speed, failed to take a corner and drove into part of a bridge. The trial judge directed the jury that they could make no use of the evidence of the appellant’s unsafe overtaking. He continued:
But when it comes to speed, well, it is a question of human nature. We know that if somebody is speeding on a road and … after speeding for some kilometres or miles he is not seen and a short time later the question of his speed becomes relevant, then, human nature being what it is you are entitled – not, you must – but you are entitled to take into account the speed at an earlier occasion in the same trip and draw an inference that the accused was driving fast at the particular time. It is a matter of experience of people – what they do and what they are likely to do.
[48] (1981) 4 A Crim R 302.
The Queensland Court of Criminal Appeal held that this direction was, if anything, too favourable to the defendant.[49]
[49] Ibid at 304.
Application of these principles to the facts of this case
On the authority of Fischer, Buchanan and Scott, I consider that the impugned evidence of Ms O’Reilly and of Ms Papadoulis was properly left to the jury. It was relevant to the extent to which the appellant’s driving was impaired by alcohol, and to the appellant’s general manner of driving around the time of the accident. The witnesses described aspects of the appellant’s driving during what was in effect, one trip. There was no need to separate the appellant’s driving in the city and suburban areas from his driving in the hills. Horsnell Gully is quite proximate to suburban Adelaide. A common feature of the evidence of both witnesses was the descriptions of the appellant going into corners or bends at a fast speed, or at least sharply, and it was open to the jury to conclude that that is what he did on Woods Hill Road. These features suggested a sufficient relationship between the appellant’s earlier driving and his driving when his car ran off the road.
The Judge’s directions with respect to the evidence of the appellant’s earlier “untoward driving” appeared in the settled form of the summing up under the heading “Other Bad Driving”. However, it was common ground that none of the headings in the settled version of the summing up had been used in the oral directions to the jury. The Judge reminded the jury of the evidence of Ms O’Reilly and Ms Papadoulis and also of the evidence of Mr Randle to the effect that the appellant had crossed the double continuous lines in order to effect the overtaking manoeuvre. The Judge then said:
Other untoward driving, if there was any – and I am not suggesting there was in this case – on, for instance, the previous day would, of course, be irrelevant. Because it has no temporal or other connection of the driving which caused the harm here.
But here in this case the witnesses are describing what happened on a single driving excursion into the hills that morning. So this other driving, just highlighted by me is, to the extent that you accept it – and it is a matter for you – relevant. It is one part of the course of driving which culminated in the collision with the tree or put another way it is part of the circumstances surrounding the final driving incident when the car collided with the tree.
In my respectful opinion, this was an appropriate direction, but it would have been desirable for the Judge to have gone further and to have explained in more detail the permissible and impermissible uses of the evidence. Counsel for the appellant accepted that the evidence of the previous driving could properly have been used by the jury to conclude that a reasonable person in the position of the appellant would have realised from the driving itself, and from the reactions of his passengers, that the manner of driving was inappropriate and, or in the alternative, that his faculties may have been impaired by his consumption of the ecstasy. The jury could also have used the evidence when considering the submission of defence counsel that the loss of control of the car was attributable to a momentary loss of concentration. It was desirable that the jury be directed about these permissible uses. I also consider that it was appropriate for the jury to be instructed not to engage in a form of propensity reasoning, ie, that if they were satisfied that they appellant had been taking bends too fast earlier in the journey it was likely that he had entered this particular bend too fast as well.
In my respectful opinion, the directions concerning the appellant’s driving earlier in the trip were inadequate and this ground of appeal should be upheld.
Ground 9: Relating the directions of the law to the facts of the case
The appellant submitted that the Judge had not related the law sufficiently to the facts. To a large extent, the matters relied upon for this ground have been addressed in relation to the previous grounds. Given my view as to the fate of the appeal, it is not necessary to address this ground further.
Ground 10: Unreasonable verdicts
As I am satisfied that the appeal should be allowed on other grounds, it is not necessary to address this ground in detail.
Conclusion
For the reasons given above, I consider that Grounds one, three, seven and eight should be upheld. I also conclude that it was desirable that more extensive directions be given, as complained of in Grounds five and six. Accordingly, I would allow the appeal and set aside each of the convictions. I would order a retrial.
KELLY J: I agree with the reasons given by White J.