R v Hendriksen - [2007] SASC 304

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v HENDRIKSEN
[2007] SASC 304
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Layton and The Honourable Justice Kelly)
17 August 2007
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - PROOF AND EVIDENCE
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN MANNER DANGEROUS TO PUBLIC
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP
Appeal against conviction – appellant convicted of causing bodily harm by dangerous driving, contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (SA) and failing to stop and give assistance after an accident, contrary to s 43 of the Road Traffic Act 1961 (SA) – whether trial Judge properly directed the jury on “driving in a manner dangerous to the public” – whether the omission of the phrase “in the situation of the accused” in his directions to the jury was an error – whether the trial Judge properly related the legal elements to the facts of the case – whether the trial Judge properly directed the jury about the defence case – whether the conviction for the dangerous driving offence was unreasonable or could not be supported by the evidence, or a miscarriage of justice.
Held: the trial Judge’s omission of the phrase, “in the situation of the accused” did not amount to an error – the trial Judge adequately directed the jury about the elements of the offence – the trial Judge’s directions about the application of the relevant law to the facts were insufficient – the trial Judge’s presentation of the defence case was inadequate in the circumstances – the conviction for the dangerous driving offence was not unsafe or unsatisfactory, or a miscarriage of justice – there was evidence on which it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt – appeal allowed – re-trial ordered.
Criminal Law Consolidation Act 1935 (SA) s 19A; Road Traffic Act 1961 (SA) s 43, referred to.
Alford v Magee (1952) 85 CLR 473; M v The Queen (1994) 181 CLR 487; R v AJS [2005] 12 VR 563; R v Von Einem (1985) 38 SASR 207; R v Zilm [2006] 14 VR 11; RPS v The Queen (2000) 199 CLR 620, applied.
Hill v Baxter [1958] 1 QB 277; Jiminez v The Queen (1992) 173 CLR 572; Kroon v The Queen (1991) 55 SASR 476; McBride v The Queen (1966) 115 CLR 44; R v Coventry [1938] SASR 79; R v Coventry (1938) 59 CLR 63; R v Mayne (1975) 11 SASR 583, discussed.
Domican v The Queen (1992) 173 CLR 555; England v The Queen (Unreported, CCA(SA), King CJ, Cox and Bollen JJ, 19 June 1991); Giorgianni v The Queen (1985) 156 CLR 473; Pollitt v The Queen (1992) 174 CLR 558; R v Andrakakos [2003] VSCA 170; R v B,P [2006] SASC 229; R v De' Zilwa [2002] 5 VR 408; R v Walton (1989) 166 CLR 283, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Driving in a manner dangerous to the public"

R v HENDRIKSEN
[2007] SASC 304
Court of Criminal Appeal: Doyle CJ, Layton and Kelly JJ

DOYLE CJ: I would allow the appeal, set aside the convictions on count 2 and on count 3, and would order a retrial of those counts.
I agree with Layton J that the first ground of appeal is not made out. She has set out the central part of the Judge’s directions to the jury. 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. However, taken as a whole, the Judge’s directions to the jury as to what had to be proved, and his explanation of the elements of the offence, was adequate. The guidance given in Mayne and in Duncan is not to be treated as if it was a statutory provision, having to be followed to the letter.
It is not necessary for the purposes of this appeal to reconsider the case law that governs the application of s 19A(3) of the Criminal Law Consolidation Act 1935 (SA). The main cases are referred to by Layton J in her reasons. I prefer to limit myself to saying that, in the circumstances, the summing up was sufficient for the present case.
As to the second ground of appeal argued, I agree with Layton J that the Judge gave the jury insufficient guidance on the application of the relevant law to the facts of the case.
In a simple case, not much guidance on the application of the law to the facts might be required. But this was not a straightforward case. As Layton J points out, there were at least two different routes to a finding that Mr Hendriksen drove in a manner that was dangerous to the public. There were several significant issues of fact that required careful consideration along the way. The alternative routes, and the significant issues of fact, should have been outlined to the jury at the least. The observations of Barwick CJ in McBride v The Queen (1966) 115 CLR 44 at 49 provide a sound guide that should be followed unless the case is a straightforward one.
In this case there was a particular need to identify for the jury the aspect of the driving by Mr Hendriksen that was said to give rise to a danger to the public. In doing so, the different approaches to a guilty verdict should have been identified. I make this point because in particularising the prosecution case the prosecutor included an allegation that Mr Hendriksen drove recklessly. That is not a helpful way of explaining to a jury the aspect of the driving that gave rise to a danger to the public. The Judge repeated this aspect of the prosecutor’s particulars in his directions to the jury. But quite apart from that I agree with Layton J that the matters to which she refers should have been dealt with by the Judge in his directions to the jury, at least in outline.
I agree with Layton J that the Judge’s treatment of the defence case was inadequate in the circumstances. The case was sufficiently complicated to call for more detailed attention than the Judge gave to the evidence that might support the defence case.
However, I respectfully disagree with Layton J in relation to the evidence from Mr Trimbell about Mr Hendriksen’s reaction when told that he had run over someone. I consider that this evidence was inadmissible. It was, in effect, hearsay evidence as to the state of mind of Mr Hendriksen. It was no more admissible than would have been evidence from Mr Trimbell that Mr Hendriksen told Mr Trimbell that he did not think he had run over someone.
I agree with Layton J that ground 4 is not made out. There was evidence on which it was open to the jury to be satisfied beyond reasonable doubt that Mr Hendriksen was guilty. For that reason it is appropriate to order a retrial.
LAYTON J:
Introduction
This is an appeal against conviction.
Following a trial before a jury, the appellant was acquitted of Count 1 of the Information that charged him with causing grievous bodily harm with intent to do grievous bodily harm, but was convicted on the second alternative count of causing bodily harm by dangerous driving, contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). In addition, the appellant was found guilty of the third count, namely failing to stop and give assistance after an accident, contrary to s 43 of the Road Traffic Act 1961 (SA).
Four grounds of appeal are contended in respect of the convictions. All grounds concern Count 2 and only one of the grounds, namely the third ground, concerns Count 3.
In essence the appellant alleges that the trial Judge failed to properly direct the jury in the following respects:
·failed to direct the jury that the question of whether the appellant’s driving was dangerous to the public was to be answered by consideration of “whether a reasonable person, in the situation of the appellant driver, ought to have recognised his driving was a real danger to the public”. The trial Judge did not include the portion emphasised in his directions to the jury;
·failed to adequately relate his legal directions with respect to the element of driving in a manner dangerous to the public to the facts of the case;
·failed to properly direct the jury about the defence case; and
·that the conviction on Count 2 was unreasonable or could not be supported having regard to the evidence, or was a miscarriage of justice.
Circumstances of the offending
The offending occurred at about 10.00 pm on Wednesday 16 March 2005. The background events were that the appellant and Mr Trimbell were friends. The victim, Mr Jaric, had a relationship of animosity with Mr Trimbell. The appellant did not know Mr Jaric and saw him for the first time that night.
The appellant parked his Holden Commodore on the corner of Thain Avenue and Crittenden Road. He was standing with Mr Trimbell near the Commodore when Mr Jaric appeared. Mr Jaric, who on his own admission was very drunk, threatened Mr Trimbell and the appellant. Initially, Mr Jaric was wielding a metal bar while chasing Mr Trimbell. He then struck the appellant’s motor vehicle and broke the aerial. The appellant then got into his car and started it. Mr Trimbell and Mr Jaric ran across into the middle of the east-bound carriageway of Crittenden Road in the vicinity of the junction of Thain Avenue and Crittenden Road, Findon, whereupon fighting ensued.
The appellant accelerated from his position, turned right and drove into Crittenden Road. It was then that his vehicle struck Mr Jaric. As discussed hereafter, a major issue was whether Mr Jaric was standing up or lying down at the time he was struck. Mr Jaric was carried some 40 metres or so along Crittenden Road before he lost his grip on the car and was dragged under the wheels and seriously injured.
Mr Jaric suffered a fractured pelvis, a fractured right femur and a fractured thumb. He also sustained a number of superficial injuries, multiple abrasions and serious lacerations to his body and one to his forehead. Mr Jaric has since been diagnosed with a post-traumatic stress disorder.
On the prosecution case, the appellant purposely drove his vehicle at Mr Jaric with the intention of hitting him and causing him grievous bodily injury (Count 1). Alternatively, if the jury was not satisfied beyond reasonable doubt that the appellant intended to hit Mr Jaric, then he drove in a manner dangerous to the public, which resulted in a collision with Mr Jaric causing him grievous bodily harm (Count 2). Third, it was contended that the appellant fled the scene and did not render assistance to Mr Jaric (Count 3).
The Trial
In the course of the trial six lay witnesses, including Mr Jaric and Mr Trimbell, were called. The appellant elected not to give evidence. Evidence was also given by an expert, Senior Constable Atkins from the Major Crash Investigation Unit. He gave evidence with respect to skid marks, scuff marks and blood on the road.
There were a number of factual issues at trial which included:
·whether the appellant took off at speed doing a burnout with fishtailing. If not, was the appellant travelling at “an excessive speed”;
·whether the skid marks and scuff marks observed on the road by Senior Constable Atkins related to this incident;
·the whereabouts of Mr Jaric on the road at the time of the collision; and
·whether or not Mr Jaric was lying down or standing at the time when the appellant’s car collided with him.
Another issue at trial was the prosecutor’s alleged failure to particularise the manner of the appellant’s driving which was said to have been “dangerous to the public”. The prosecutor initially provided the following particulars:
The Commodore driven by the accused from the corner of Thain Avenue across the main road, was driven recklessly and at a speed and into or at the victim and Mr Trimbell in circumstances where both the victim and Mr Trimbell ought to have been seen by that driver.
The discussion about particulars continued until eventually the prosecution provided two alternative scenarios relied upon for Count 2. In short, these particulars alleged that the appellant saw Mr Jaric and Mr Trimbell and then deliberately drove recklessly and at a speed into or at them, or alternatively that the appellant ought to have seen Mr Jaric and Mr Trimbell before he drove recklessly and at a speed into or at Mr Jaric.
It was not until the close of the prosecution case that the prosecution suggested that the following third alternative scenario be put to the jury:
The Commodore driven by the accused from the corner of Thain Avenue across Crittenden Road was driven recklessly and at a speed in the circumstances into the vicinity or location of the victim and Mr Trimbell on Crittenden Road in circumstances in which the victim and Mr Trimbell ought to have been seen prior to such action being taken by the accused.
In his summing up, the trial Judge indicated to the jury the following two scenarios as being the particulars of the prosecution case:
·The first was that the Accused drove his motor vehicle from the corner of Thain Avenue across Crittenden Road recklessly, and at an excessive speed, into the vicinity or location of Mr Jaric and Mr Trimbell in circumstances in which the alleged victim and Mr Trimbell ought to have been seen prior to such action being taken by the Accused and, in so doing, his vehicle collided with Mr Jaric.
·Alternatively, that having seen Mr Jaric and Mr Trimbell on Crittenden Road, the Accused drove his vehicle from the corner of Thain Avenue, across Crittenden Road, with the intention of avoiding them, but drove his motor vehicle recklessly and at an excessive speed into the vicinity of Mr Jaric and Mr Trimbell and, in so dong, collided with Mr Jaric.
Ground 1 – Directions on test for dangerous driving
The appellant complains that the trial Judge erred in not including the phrase emphasised: “whether a reasonable person in the situation of the [accused] driver ought to have recognised his driving was a real danger to the public”, in his directions to the jury.
The trial Judge’s summing up with regard to the elements of Count 2 was as follows:
I now turn to the elements of the Primary Charge, namely, the charge of Causing Grievous Bodily Harm By Driving In A Manner Dangerous To The Public. Each of the following elements of the charge must be proved beyond reasonable doubt if the Accused is to be found guilty of the offence.
Those elements are:
· First, that the Accused was the driver of the motor vehicle;
·Secondly, the motor vehicle was being driven in a manner which was dangerous to the public;
·Thirdly, that by driving in that manner, the Accused caused grievous bodily harm to Nikola Jaric.
The Judge indicated that the first element of that charge did not require explanation. He then turned to the second element, being the subject of this ground of appeal.
To explain the second element, I also need to explain the distinction which the law draws between driving in a manner dangerous to the public, on the one hand, and driving without due care and attention, on the other.
It will be obvious to you all that driving a car on public roads these days requires an obligation to use a very high level of care and concentration. Realising that, our statute law provides for an ascending scale of offences. The least of these is driving without due care and attention. This offence covers any material departure from the standard of care expected of all motorists. It is at the bottom of the scale of seriousness, because the law recognises that none of us are perfect and any one of us may sometimes fail to devote to our driving the care and attention that the law requires. Now, because none of us are perfect, we have to accept the risk that when we use a public road, whether as a driver, a passenger, or a pedestrian, we will meet someone else who is not driving with due care and attention. The law recognises that a risk of this kind is something we just have to accept as one of the ordinary incidents of modern life. People mean well, but sometimes they make mistakes, often due to an inadvertence, or minor temporary lapses in concentration. But over and above that, it is a matter of common knowledge that there are some people who, at times, impose on other users of the road a risk which is by no means a fair or necessary risk of the road; they drive in a manner which imposes on other users of the road a risk which any reasonable person would recognise as a real danger to the public. That is what the Primary Charge means when it charges the Accused with driving in a manner dangerous to the public. It refers to the sort of risk which is, in no sense, an ordinary or necessary risk of the road and to a manner of driving which is treated as a fairly serious crime. [Emphasis added]
After briefly outlining the third element of the charge, the Judge then outlined the Crown case and put forward the two alternative scenarios which I set out earlier.
It is apparent that the Judge in directing the jury did not refer to a reasonable person in the situation of the accused driver. This case squarely raises the issue of whether the trial Judge’s omission of those words was an appealable error.
The phrase “an ordinary person in the situation of the driver” was first coined by this Court in R v Coventry (“Coventry”) [1] where the Court stated as follows:[2]
The fact to be proved in this case was that the defendant was driving in a manner which was dangerous to the public, and if it is necessary to attempt a definition we should say that driving in a manner dangerous to the public means the act of driving in a manner which any ordinary person (in the situation of the driver) would recognize as dangerous, in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road–the commonplace incidents of the use of the highway in question under the conditions of modern transport by fast-moving vehicles. But in view of the argument we should add that, according to the circumstances of the case, it may be necessary to dwell upon different aspects of this definition. [Emphasis added]
[1] [1938] SASR 79, 86.
[2] Ibid.
The Court in Coventry was primarily concerned with two aspects: First, the mens rea of driving in a culpably negligent manner, or recklessly, or at a speed or in a manner which is dangerous to the public. Secondly, the difference between negligent driving on the one hand and driving in a manner dangerous on the other.
In Coventry, the driving alleged as being in a manner dangerous was driving at excessive speed. The factual circumstances were that the defendant was the driver of a motor vehicle which collided with a cycle just before midnight in the city. The evidence with respect to the precise impact was uncertain. There was evidence that the motor vehicle was travelling near the centre on its proper side of the road and never deviated from that course until immediately before the collision when it swerved to the right. There was no evidence of any skid marks. Estimates were given as to the speed of the vehicle, which on the prosecution case “went as high as 40 miles per hour”.
In respect of the offence of driving in a manner dangerous to the public and in considering the requisite mens rea, the Court stressed the objective nature of the standard to be applied: [3]
… upon a charge of driving at a speed or in a manner which is dangerous to the public the prosecution is not so much concerned with the state of the defendant's mind as with his conduct. The essence of this charge is the objective fact–the risk of injury to others. In this form of the charge it alleges that the conduct of the defendant attained to a standard which is “objective, impersonal and universal, fixed in relation to the safety of other users of the highway” (McCrone v Riding, (1938) 1 All.E.R. 157).
[3] R v Coventry [1938] SASR 79, 85.

The Court further indicated: [4]
... although we speak of the "objective fact", the act intended is the voluntary act of driving the vehicle as it is driven. If the accelerator jams the driver is not necessarily "driving" the car at the speed that is attained. If he is unaware, and is not negligent in being unaware, that he is approaching a dangerous intersection, it may be a question of whether he is guilty of driving a speed which is dangerous in the circumstances. On the other hand, if he knows that his brake rod has broken, and drives on at a speed which might be excusable if his brakes were working, he may be guilty of this offence.
[4] Ibid 87.
In these passages, the Court drew attention to certain circumstances of the driver, which may affect whether the offence has been made out. The first of those is that of voluntariness, namely that the offence cannot be committed unless the person is driving voluntarily. The second example refers to a state of knowledge of the driver, namely that if the driver was unaware of a dangerous situation, this circumstance may be a relevant factor in determining whether in all of the circumstances the driver was guilty of driving in a manner dangerous to the public. These two aspects related to the personal circumstances of the accused driver are further developed in subsequent cases discussed hereafter.
The Court in Coventry expressed that it was essential for the jury to be directed as to the distinction between “mere negligence” in driving and “driving to the danger of the public”. The Court stated: [5]
Any departure from the full standard of reasonable care, however transitory, and however slight the risk may be, is properly described as negligence. It is desirable to point out that the most careful and skilful of drivers may allow his attention to wander, or do a foolish thing through inadvertence, and that this may be "blameworthy"; but, then being what they are, negligence of this kind is, more or less, on a par with pure misadventure. It is a fair risk of the road¾in so far as ordinary people are frequently careless, and very few are always careful the charge of driving to the danger of the public involves more than this. It implies conduct which is open to grave censure as involving the plain threat of serious injury to other people.
[5] Ibid.
The Court concluded that the summing up in the case before them did not draw sufficient distinction between “mere negligence” and “driving to the danger of the public”. For that reason, the appeal was allowed and the conviction was quashed. An application for special leave to appeal to the High Court was subsequently refused.[6]
[6] R v Coventry (1938) 59 CLR 63.
This Court in R v Mayne (“Mayne”)[7] further considered the test as expressed in Coventry. One of the issues on appeal was whether the trial Judge failed or failed to adequately direct the jury that the essence of the offence was “the act of driving in a manner which any ordinary person (in the situation of the driver) would recognize as dangerous”.[8]
[7] (1975) 11 SASR 583.
[8] Ibid 588.
Bray CJ, with whom Hogarth and Jacobs JJ agreed, stated this: [9]
The quotation in the third ground of appeal comes from the judgment of the Full Court in R. v. Coventry. The High Court refused special leave to appeal from that decision. Some of the remarks of the learned Judges of this Court were criticized but not the passage in question. In this State it has been customary ever since to direct juries in the sense of that quotation; see for example Reg. v. Duncan. In England apparently the test of dangerous driving is entirely objective. The view taken there apparently is that even dangerous driving caused by the "slightest negligence" (see Reg. v. Ball) is enough. That, however, has never been the rule here, and I think that when Parliament enacted s 14a in 1952 it impliedly accepted and adopted the rule laid down in Coventry's case. By empowering the jury to acquit of causing death by dangerous driving and to convict of driving without due care or attention, it must have contemplated that not all departures from due care and attention, even if they cause death, are necessarily to be classified as dangerous within the meaning of s 14.
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" (Duncan's case). [Citations omitted and emphasis added]
[9] Ibid 585.
It is apparent from this passage that the reference to the “objective” nature of the offence in Australia was being contrasted with the situation in England which he described as “entirely objective”. The “entirely objective” standard which applied in England allowed even the “slightest negligence” of a driver to amount to driving in a manner dangerous. Bray CJ noted that in Australia, allowance was made for the “ordinary risks of the road” which would not be characterised as driving in a manner dangerous, but nonetheless the test in Australia was still an objective one.
Bray CJ’s reference to the “ordinary person in the situation of the driver” was indeed a recognition that ordinary persons can from time to time lapse in their care and attention when driving - driving without due care. However, there are other occasions when any ordinary person in the situation of the driver ought to recognise that such driving was a real danger to the public - driving in a manner dangerous to the public.
Bray CJ in Mayne in turn referred to R v Duncan, which is attached as a note in the South Australian State Reports.[10] Included is part of the summing up to the jury by Napier CJ. This summing up drew the distinction between driving without due care and attention and driving in a manner dangerous. Napier CJ stated to the jury: [11]
… our statute law provides for something like an ascending scale of offences. The least of these is the offence of “driving without due care and attention”. That covers any material departure from the high standard of care which is due by anybody who drives a motor vehicle. It is the standard which gives a civil right of action for damages; but, over and above that, there is the more serious offence of driving in the manner alleged in the information in this case, namely, “driving in a manner dangerous to the public”. I think that the distinction between these two offences is best explained by pointing out to you that all—or at any rate most—of us are liable at times to do things that we ought not to do, and to leave undone things that we ought to have done. When we use the public highway, we must expect to meet people like ourselves—people who are only human beings—with the human tendency to depart, at times, from the full standard of care and skill. That you may regard as negligence—“driving without due care and attention”—but, nevertheless as an ordinary “risk of the road”. If it is a case of “You today, and me tomorrow”, we have to accept the risk as one of the ordinary incidents of modern life. If we live in an age of aeroplanes and fast-moving traffic, we have to take things as they are—the thick with the thin, and you the pedestrian today and tomorrow the driver, are to say where the line should be drawn between a mere lapse from due care and attention and conduct which is plainly blameworthy. [Emphasis added]
[10] R v Mayne (1975) 11 SASR 583, 592.
[11] Ibid 593.
His Honour continued: [12]
… it must be a matter of common knowledge that there are some people who—at times—impose on other users of the road a risk which is by no means a fair or necessary risk of the road. They drive in a manner which imposes upon other users of the road a risk which any reasonable person, in the situation of the driver, ought to recognise as a real danger to the public. That, gentlemen, is what I think this information means, when it charges the accused with driving in a manner dangerous to the public. It refers to the sort of risk which is in no sense an ordinary or necessary risk of the road, and to a manner of driving which is treated as a fairly serious crime. [Emphasis added]
[12] Ibid 594.
When referring to the distinction between the two types of offending in his directions to the jury, Napier CJ included the phraseology referred to in Coventry.
Returning to Mayne, Bray CJ when addressing the trial Judge’s failure to use the customary and usual direction as to “any reasonable person in the situation of the driver”,[13] did so in conjunction with a further ground of appeal which alleged that the trial Judge erred in failing to sufficiently differentiate between the offences of driving without due care or attention and driving in a manner dangerous to the public. After considering the whole of the summing up, Bray CJ concluded that the trial Judge had fulfilled the requirement of appropriately distinguishing between departures from the proper standard of care as may be regarded as ordinary risks of the road and driving in a manner dangerous to the public.
[13] R v Mayne (1975) 11 SASR 583, 585.
It follows from Bray CJ’s reasoning that the failure to expressly use the usual and customary direction does not of itself give rise to error. It is necessary to look at the whole summing up to see whether or not, absent that usual and customary direction, the jury were appropriately directed.[14]
[14] Ibid 588.
This Court gave further consideration to the expression, “driving in a manner dangerous to the public” in Kroon v The Queen (“Kroon”).[15]In that case King CJ, with whom Mohr J agreed, first directed attention to the issue as to whether a driver who falls asleep at the wheel can be considered to be driving in a manner dangerous. It was decided that neither the offence of causing death nor grievous bodily harm by dangerous driving, nor indeed driving without due care, could be committed unless the driving was a voluntary act. Therefore, a person who is driving whilst asleep is committing an involuntary act and by reason of that fact cannot be guilty of a driving offence. However, the Court held that a person in such a situation does not necessarily escape legal responsibility. As King CJ said:[16]
If a driver, who knows or ought to know that there is a significant risk of falling asleep at the wheel, continues to drive the vehicle, he is plainly driving without due care and may be driving in a manner dangerous to the public. If the driver does fall asleep and death or bodily injury results, the driving prior to the falling asleep is sufficiently contemporaneous with the death or bodily injury (McBride (supra), per Barwick CJ (at 51)) to be regarded as the cause of the death or bodily injury.
[15] (1991) 55 SASR 476.
[16] Ibid 480.
However, in the course of discussing the appropriate standard to be applied with regard to driving in a manner dangerous to the public, King CJ indicated that:[17]
It is well established that the question whether a vehicle is driven in a manner dangerous to the public for the purpose of the offences created by s 19a of the Criminal Law Consolidation Act 1935 must be answered by reference to an objective standard and irrespective of whether the accused intended to drive dangerously or appreciated that he was doing so. The character of the driving is tested not by reference to whether the danger to the public involved in the driving was appreciated by the accused but to whether he ought to have appreciated the danger; or, to put it another way, whether a reasonable person in the situation of the accused would have appreciated the danger.
Although the standard to be applied is objective in the sense defined above, it is applicable only to a voluntary act of driving. [Citations omitted and emphasis added]
[17] Ibid 477-8.
The above passages affirm that the standard to be applied is an objective one, and that to commit the offence of driving in a manner dangerous does not require the driver to form a specific intention to drive dangerously, or that the driver must appreciate that he or she is driving dangerously. Rather, the test to be applied is whether the driver ought to have appreciated the danger or, to put it in another way, whether a reasonable person (ordinary person) in the situation of the accused would have appreciated the danger.
The same approach is indicated in the reasoning of White J in Kroon who reinforced the requirement that the test is that of “any reasonable person” in the situation of the driver. As His Honour said:[18]
Under that test “any reasonable person” means any ordinarily competent, alert and careful driver without idiosyncratic characteristics or physical or mental defects. The reasonable person looks ahead and thinks what he or she is doing. Having said that, I should add that such a person (in the situation of the driver) would still be a reasonable person if he or she happened to fall asleep suddenly and without any warning (such as drowsiness) when there were no background reasons to expect the onset of drowsiness or sleep. The hypothetical person would only cease to be a reasonable person if he or she persisted in driving after becoming aware of something or some circumstance indicating a risk of falling off to sleep at the wheel.
Should a reasonable person, in the situation of the appellant driver, have been aware at about 10.30 pm that night, shortly before the collision, that he was becoming tired or drowsy in consequence of which there was a risk that he might drop off to sleep? That was the question for the jury. The degree of the known tiredness and nature of any warnings of the propensity to go to sleep in the circumstances would both bear upon the answer to the question whether the driving was dangerous or merely without due care. One further factor in this case was the effect of the gusty wind on a large vehicle and the knowledge that he had to be alert and remain alert against sudden gusts – and he knew that if he did not remain alert there was potential for danger to other road users. [Emphasis added]
[18] Kroon v The Queen (1991) 55 SASR 476, 487.
White J made further reference to the fact that the trial Judge in that case did not refer, in his summing up, to what any reasonable person in the situation of the driver ought to have realised and done. He summarised his view in the following way:[19]
I have set out above the long distances travelled and the long hours kept by the accused from which the jury could, if it had been properly directed, have inferred that the accused did fall asleep. The crucial question for the jury, if properly directed, would then have been whether they were prepared to infer that, in the totality of the circumstances known to any reasonable person in the situation of the appellant, such reasonable person knew or ought to have known that he might fall asleep. Should he have been aware as a reasonable man of any such warning signs – regardless of his denials? This question of the awareness of a reasonable person in the situation of the appellant should have been at the heart of the case but the ruling prior to addresses and the terms of the summing up deflected the attention of counsel and the jury away from the only real issue. [Emphasis added]
[19] Ibid 492.
In addition, in the course of his reasoning, White J adverted to the situation of emergency and whether or not a driver could be regarded as driving in a manner dangerous in a situation of “the agony of the emergency”.[20] His Honour drew the distinction between driving at the stage before the emergency came into existence and driving during the course of the emergency. The focus on dangerous driving is towards the former rather than a driver’s attempt to extricate from an emergency.[21]
[20] Kroon v The Queen (1991) 55 SASR 476, 490.
[21] Ibid 490-1.
Kroon was given specific consideration by the High Court in Jiminez v The Queen (“Jiminez”).[22] Jiminez involved the driving of a motor vehicle in the early hours of the morning after the driver slept for a period of four hours. Two and a half hours into the driving the vehicle failed to take a curve and collided with a tree. A passenger was killed. The driver told a police officer that he had fallen asleep, and later said in a police interview that he had lost control when he fell asleep. The driver was asked whether he felt tired prior to the collision and responded, “I was thinking about stopping in the next town. The heater was on”. The accused was convicted of dangerous driving occasioning death. He unsuccessfully appealed to the Court of Criminal Appeal and was subsequently granted special leave to appeal to the High Court. In allowing the appeal and reversing the decision of the Court of Criminal Appeal, the majority of the High Court, (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) held that the actions of the driver whilst he was asleep were not conscious or voluntary and as a consequence he could not be criminally responsible for driving in a manner dangerous to the public.
[22] (1992) 173 CLR 572.
After confirming the reasoning of King CJ in Kroon, the majority commented:[23]
As King C.J. recognizes, where the question is whether a driver who falls asleep at the wheel is guilty of driving in a manner dangerous to the public, the relevant period of driving is that which immediately precedes his falling asleep. Not only must the period be sufficiently contemporaneous with the time of impact to satisfy the requirement of s. 52A but the driving during that period must be, in a practical sense, the cause of the impact and the death. The relevant period cannot be that during which the driver was asleep voluntary. And, for the reasons which we have given, if the driver’s actions upon waking up amount to no more than an attempt to avoid an accident, it cannot be that period of driving.
[23] Ibid 578.
The majority continued in their reasoning and indicated as follows:[24]
The manner of driving encompasses “all matters connected with the management and control of a car by a driver when it is being driven”. For the driving to be dangerous for the purposes of s. 52A there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention. Although a course of conduct is involved it need not take place over any considerable period. Nor need the conduct manifest itself in the physical behaviour of the vehicle. If the driver is in a condition while driving which makes the mere fact of his driving a real danger to the public, including the occupants of the motor vehicle, then his driving in that condition constitutes driving in a manner dangerous to the public. In the same way, driving a motor vehicle in a seriously defective condition may constitute driving in a manner dangerous to the public, even though the defect does not manifest itself until such time as the vehicle is out of the control of the driver. But it should be emphasized, and it must always be brought to the attention of the jury, that the condition of a driver must amount to something other than a lack of due care before it can support a finding of driving in a manner dangerous to the public. [Citations omitted and emphasis added]
[24] Jiminez v The Queen (1992) 173 CLR 572, 579.
The majority then cited with approval the reasoning of Barwick CJ in McBride v The Queen (“McBride”),[25] and stated as follows: [26]
It follows that for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition that condition must be such that, as a matter of objective fact, his driving in that condition is a danger to the public. Various matters will be relevant in reaching such a conclusion. The period of the driving, the lighting conditions (including whether it was night or day) and the heating or ventilation of the vehicle are all relevant considerations. And, of course, it will be necessary to consider how tired the driver was. If there was a warning as to the onset of sleep that may be some evidence of the degree of his tiredness. And the period of driving before the accident and the amount of sleep that he had earlier had will also bear on the degree of his tiredness. But so far as “driving in a manner dangerous” is concerned, the issue is not whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that, in the circumstances, his driving was a danger to the public. [Emphasis added]
[25] (1966) 115 CLR 44, 49-50.
[26] Jiminez v The Queen (1992) 177 CLR 572, 579-80.

The majority also considered other aspects of the circumstances of the driver which may not give rise to a driving offence. They adverted to where a person had a stroke or epileptic fit,[27] or alternatively a blow from a stone or attack from a swarm of bees akin to a novus actus interveniens.[28] However, the majority concluded:[29]
But if a person’s condition is such that his actions are unconscious or involuntary, it does not matter what the cause is: he cannot be found guilty of an offence, whether statutory or otherwise, unless the acts which constitute it have been done voluntarily.
[27] Hill v Baxter [1958] 1 QB 277. Cited in Jiminez v The Queen (1992) 73 CLR 572, 580.
[28] Ibid 580.
[29] Jiminez v The Queen (1992) 177 CLR 572, 581.
The majority went on to consider another circumstance which may operate as a defence to the offence, namely the defence of honest and reasonable mistake, and stated:[30]
The majority of the Court in Reg. v. Coventry recognized that the defence of honest and reasonable mistake was available to a charge under the equivalent of s. 52A in South Australia. In that case the majority said:
“No doubt the language of the section does not exclude a defence of mistake of fact on reasonable grounds or of involuntariness (for example, interference by another person with the driving of the car), and perhaps there may be other exceptional excuses, based on special facts, to which a state of mind may not be immaterial. But, speaking generally, the expression ‘driving at a speed, or in a manner, which is dangerous to the public’ describes the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence.”
[30] Jiminez v The Queen (1992) 173 CLR 572, 582.
After referring to the different approach taken in England on when the defence of honest and reasonable mistake does not apply, the majority then gave an illustration of an honest and reasonable mistake being “where a driver is unaware of the defective condition of his vehicle and believes it upon reasonable grounds to be in good working order”.[31]
[31] Ibid 583.
The majority then commented upon the circumstances in which the jury’s attention should have been drawn to the defence of honest and reasonable mistake in that case:[32]
It follows from what has been said above that it was necessary for the prosecution in the present case to establish that the applicant was affected by tiredness to an extent that, in the circumstances, his driving was objectively dangerous. It was open to the jury to draw an inference to that effect from a finding that the applicant went to sleep at the wheel. It was, however, also open to the jury to find that the applicant honestly and reasonably believed that, in all the circumstances, it was safe to drive. … The absence of any warning of the onset of sleep, if the jury found that there had been none, laid a foundation for that being an honest and reasonable belief. Lack of warning as to the onset of sleep is only one of a number of circumstances that may bear on the question whether a driver honestly and reasonably believed that it was safe for him to drive. Ordinarily, the circumstances which bear on whether the driving was dangerous will also bear on this question.
[32] Ibid 583-4.
Summary of Principles
When considering the above authorities, the following propositions emerge:
·The standard to be applied in deciding whether or not a person has driven in a manner dangerous to the public is an objective standard, being the care and attention which is expected of a reasonable driver being an ordinary, careful or prudent driver without idiosyncratic characteristics, or physical or mental defects.[33]
[33] Kroon v The Queen (1991) 55 SASR 476, 487; England v The Queen (Unreported, CCA (SA), King CJ, Cox and Bollen JJ, 19 June 1991).
·The offence of driving in a manner dangerous to the public may be committed if either:
-the driver intended to drive dangerously; or
-if there was intentional driving which was not (or may not have been) appreciated by the driver as being dangerous, but that a reasonable person in the circumstances of the accused, would have appreciated the danger.[34]
[34] R v Coventry [1938] SASR 79, 87; R v Coventry (1938) 59 CLR 633, 637-8, 639; McBride v The Queen (1966) 115 CLR 44, 49-50, 58; R v Mayne (1975) 11 SASR 583, 585; Giorgianni v The Queen (1985) 156 CLR 473, 479, 490, 499; Kroon v The Queen (1991) 55 SASR 476, 477-8.
·A jury is required to be directed about the distinction between departures from the driving standard which amount to mere negligent driving and those which amount to driving in a manner dangerous to the public.[35]
[35] R v Coventry [1938] SASR 79, 87; McBride v The Queen (1966) 115 CLR 44, 50; R v Mayne (1975) 11 SASR 583, 585; England v The Queen (Unreported, CCA(SA), King CJ, Cox and Bollen JJ, 19 June 1991).
·A direction to the jury should include reference to the effect that some departures from the standard may be regarded as ordinary risks of the road which may amount to a lesser offence of driving without due care. This situation should be contrasted with other departures which an ordinary or reasonable driver would recognise as a real danger to the public. It is a question of the degree of departure from the standard.[36]
·Such a direction should usually include a reference to the effect that the character of the driving is to be assessed having regard to the ordinary or “reasonable person in the situation of the accused driver”. However a failure to use such terminology may not of itself amount to an appealable error – the summing up should be viewed as a whole.[37]
·With regard to the phrase “a reasonable person in the situation of the accused driver”, the word “situation” refers to the circumstances of the accused at the time when the alleged dangerous driving took place. However, such circumstances do not alter the need for an objective standard to be applied “which is impersonal and does not vary between individuals”.[38] This objective standard is to be applied to the circumstances of the driver at the time and not to an abstract or hypothetical situation.[39]
·The circumstances or situation of the accused driver may include, but are not limited to:
-external features such as the location, weather or physical features (eg the lighting, visibility, traffic etc);[40]
-observed or admitted features of the driving of the accused (eg the speed, direction, place on the road and path of driving etc) or reconstruction of such features (having regard to marks, debris or injuries etc);[41]
-the condition of the car, and whether there is a vehicle malfunction (eg brake failure, tyre blow-out, loss of steering etc);[42]
-circumstances which may have arisen unexpectedly (eg a swarm of bees, medical emergency, stone causing broken window etc);[43] and
-personal circumstances of the driver, such as sleepiness; alcohol or drug consumption; health traumas such as stroke, heart attack or epileptic fit; and state of mind circumstances such as shock, fear or panic. In addition, the state of knowledge or awareness by an accused of these features and circumstances is also relevant.[44]
[36] R v Coventry [1938] SASR 79, 87; McBride v The Queen (1966) 115 CLR 44, 50; R v Mayne (1975) 11 SASR 583, 585; England v The Queen (unreported, CCA(SA), King CJ, Cox and Bollen JJ, 19 June 1991).
[37] R v Mayne (1975) 11 SASR 583, 588.
[38] R v Coventry (1938) 59 CLR 633, 638.
[39] R v Coventry [1938] SASR 79, 85-7; R v Coventry (1938) 59 CLR 633, 637- 9; Kroon v The Queen (1991) 55 SASR 476, 477-478, 487, 492; Jiminez v The Queen (1992) 173 CLR 572, 579.
[40] R v Coventry (1938) 59 CLR 633, 639; Jiminez v The Queen (1992) 173 CLR 572, 580.
[41] R v Coventry (1938) 59 CLR 633, 639; McBride v The Queen (1966) 115 CLR 44, 49-50; R v Mayne (1975) 11 SASR 583, 586; England v The Queen (unreported, CCA(SA), King CJ, Cox and Bollen JJ, 19 June 1991).
[42] R v Coventry [1938] SASR 79, 86-7; Hill v Baxter [1958] 1 QB 277, 282-3.
[43] Hill v Baxter [1958] 1 QB 277, 282-3; Jiminez v The Queen (1992) 173 CLR 572, 580-581.
[44] Hill v Baxter [1958] 1 QB 277, 282-3; McBride v The Queen (1966) 115 CLR 44, 49-50; Kroon v The Queen (1991) 55 SASR 476, 480, 487, 492; Jiminez v The Queen (1992) 173 CLR 572, 579.
In relation to the personal circumstances of the driver, a particular circumstance may be relied on by the prosecution as the basis for driving in a manner dangerous, for example falling asleep, or it may be a combination of circumstances such as alcohol consumption combined with speed. Similarly, the defence may seek to rely on a particular personal circumstance, or circumstances, as a basis for a defence. These defences include:
·lack of voluntariness such that the accused could not be said to be driving a vehicle. Examples include being asleep, undergoing a psychotic disturbance, suffering a stroke or heart attack, or interference in the driving by another person (eg being forced to drive under threat of violence);[45]
·response to a novus actus interveniens, such as being hit by a stone or attacked by a swarm of bees;[46]
·honest and reasonable mistake, being an honest and reasonable belief as to a state of facts which, if they existed, would make the accused’s act of driving innocent (eg where an accused is unaware of the defective condition of a car but believes on reasonable grounds that it is in good working order);[47] and
·necessity (eg an emergency).[48]
[45] R v Coventry (1938) 59 CLR 633, 638; Hill v Baxter [1958] 1 QB 277; Giorgianni v The Queen (1985) 156 CLR 473, 499; Kroon v The Queen (1991) 55 SASR 476, 478-9; Jiminez v The Queen (1992) 173 CLR 572, 577, 580-1.
[46] Hill v Baxter [1958] 1 QB 277, 282-3; Jiminez v The Queen (1992) 173 CLR 572, 580-1.
[47] R v Coventry (1938) 59 CLR 633, 638; McBride v The Queen (1966) 115 CLR 44, 49-50, 55; Jiminez v The Queen (1992) 173 CLR 572, 582-4.
[48] R v Coventry (1938) 59 CLR 633, 640; Kroon v The Queen (1991) 55 SASR 476, 490.
In relation to these defences, the prosecution may rely on the same circumstances forming the basis of the defence to refute the defence and support its case against the accused. This was the situation in Kroon and in Jiminez where the prosecution sought to prove that, prior to falling asleep, the accused knew or ought to have known that there was a significant risk of that condition occurring, but that nonetheless he still commenced to drive or continued to drive. The driving conduct is still to be assessed according to the standard of the ordinary or reasonable driver in that situation.
Moreover, the personal circumstances of the driver cannot be used to lower the standard of care required to protect the public, for example whether the driver at the time of the driving was angry, upset or distressed. As the authorities indicate, the driving must be assessed objectively. The appropriate question to be asked is whether an ordinary and reasonable driver in the circumstances would have known that driving or continuing to drive in such a condition was dangerous to the public.
When applying these principles to the summing up, it seems to me that the trial Judge’s failure to add the usual phrase “the situation of the accused” after the reference to “reasonable person” so that it would have read:
Some people who, at times, impose on other users of the road a risk which is by no means a fair or necessary risk of the road; they drive in a manner which imposes on other users of the road a risk that any reasonable person [in the situation of the accused] would recognise as a real danger to the public.
did not of itself amount to an error. The trial Judge at all times made it clear that the driving was to be judged according to an objective standard and appropriately drew the jury’s attention to the distinction between driving without due care and driving in a manner dangerous to the public. The concern however, with his summing up is whether he gave sufficient guidance to the jury as to the relevant circumstances and facts to which the objective test should have been applied. This is the subject of Ground 2 of the appeal.
Ground 2 – Failure to adequately relate directions on law with respect to Count 2 – driving in a manner dangerous to the public – to the facts of the case
The appellant complains that the trial Judge erred in failing to adequately relate his directions on the law, as to whether the appellant drove in a manner dangerous to the public (Count 2), to the facts of the case.
In the recent decision of R v Zilm,[49] the Victorian Court of Appeal discussed the requirement that a trial judge relate the law to the facts in issue. In that case, the accused was convicted of two counts of rape and one count of indecent assault. The ultimate issues in the trial were whether the complainant consented to the impugned acts, and whether the accused held an honest and reasonable belief that the complainant had in fact consented. The complainant made various concessions in her evidence about what she had said and done at the time when the accused performed the sexual acts. The accused challenged the complainant’s evidence on this issue and gave evidence in a police interview to the effect that, as a consequence of the complainant’s acts, he held an honest and reasonable belief that she was consenting.
[49] [2006] 14 VR 11.
In granting leave to appeal, allowing the appeal and quashing the convictions, the Court held that the Judge failed to adequately relate the law to the facts in issue. In particular, the Court held that the critical issues were imprecisely defined in the course of the Judge’s legal directions, and that he failed to appropriately highlight the competing contentions and evidence relevant to those issues. In reaching this decision, the Court cited various High Court authorities, notably Alford v Magee,[50] where the High Court adopted the “great guiding rule” of Sir Leo Cussen agreeing that:
…it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are.
[50] (1952) 85 CLR 473, 466, per Dixon, Williams, Webb, Fullager and Kitto JJ.
In more recent years, the High Court has applied these principles on many occasions, notably in RPS v The Queen,[51] where the Court held:
The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence. [Citations omitted and emphasis in original]
[51] (2000) 199 CLR 620, 637 per Gaudron A-CJ, Gummow, Kirby and Hayne JJ, 655-6 per Callinan J.
In the present case, it was therefore necessary that the trial Judge fulfil the following obligations, as helpfully summarised by the Victorian Court of Appeal in R v AJS:[52]
(a) to decide what are the real issues in the case;
(b) to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;
(c) to tell the jury, in the light of the law, what those issues are;
(d) to explain to the jury how the law applies to the facts of the case; and
[52] [2005] 12 VR 563, 577, [55]. Cited in R v Zilm [2006] 14 VR 11, 25, [58].
(e) to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.
Mr Henchliffe submitted that whilst the trial Judge gave generally correct legal directions with respect to whether the appellant drove in a manner dangerous, subject to the omissions discussed under Ground 1 above, he failed to adequately relate the law to the facts of the case.
Mr Henchliffe submitted that the only time that the Judge related the law to the facts on this element was when he reminded the jury of the two alternative scenarios relied on by the prosecution, set out in the two bullet points at paragraph [24] above.
Mr Henchliffe argued that although the trial Judge summarised the two alternative scenarios which formed the basis of the prosecution case on this element, he needed to go further and identify the facts and circumstances relevant to those scenarios, and distil the relevant evidence for the jury’s consideration. Mr Henchliffe also noted that this portion of the summing up was omitted from the written memorandum of the legal elements provided to the jury. Mr Henchliffe submitted that at the very least, the trial Judge should have clearly identified the critical issue of whether the appellant saw Mr Jaric before he hit him, as this affected which of the two alternative paths the jury could follow for Count 2.
It was submitted that if the jury were satisfied that the appellant had seen Mr Jaric, then the issue of lookout would not have arisen. As a consequence, the jury’s attention would have then focussed on whether the manner of the appellant’s driving constituted a danger to the public. In the alternative, if the jury were not satisfied that the appellant had seen the victim, then the issue of lookout would have arisen. The question for the jury would then have primarily focussed on whether a reasonable driver in the position of the appellant ought to have seen Mr Jaric in the circumstances, so as not to have hit him.
In addition, Mr Henchliffe submitted that the trial Judge failed to explain other relevant factors, including the various inconsistencies between some witnesses’ evidence relevant to the manner of the appellant’s driving. In particular, Mr Henchliffe referred to the following matters, which he submitted should have specifically been brought to the jury’s attention:
·whether the appellant was in control of the car or was driving recklessly at the time of the collision. For example, whether the jury could be satisfied that the appellant did a burnout, as Mr Thompson testified;
·whether the appellant’s speed was excessive in all of the circumstances;
·whether Mr Jaric was lying down or standing up;
·whether the angles of the road would have affected the appellant’s view and focus; and
·whether the appellant’s version of events was credible and reliable.
Finally, it was submitted that the trial Judge failed to direct the jury that even if they found that the appellant should have seen Mr Jaric in all the circumstances, they still needed to consider whether the appellant’s driving was dangerous to the public, and not merely careless or negligent.
In support of these contentions, Mr Henchliffe referred to the High Court decision of McBride,[53] which he submitted has some parallels to the present case. McBride was also a dangerous driving case which primarily concerned whether the trial Judge properly directed the jury on the issue of whether the applicant drove in a manner dangerous to the public. In finding for the applicant and quashing the conviction, Barwick CJ held that the trial Judge failed to isolate precisely for the jury the elements relied upon by the Crown to establish that the accused was driving in a manner dangerous to the public. In reaching this decision, Barwick CJ stated:[54]
Naturally the first matter in the case of a charge that the vehicle has been driven in a manner which is dangerous to the public is to determine and present to the jury what precisely is the manner of driving which the Crown alleges the accused has pursued and which it claims is dangerous to the public. If that manner of driving is not by its very description potentially dangerous to the public, it would be necessary to isolate for the jury the features of it which the Crown charges to be so dangerous. Of course, if the evidence could properly suggest to the jurymen some other feature of the applicant's driving as itself dangerous to the public, the jury should be told that they are competent to treat that feature of the driving rather than the feature or features of the driving chosen as dangerous by the Crown, as in breach of the section. Equally, if the evidence could bear such an interpretation, they could be told that if they find the applicant to have been driving in the precise manner charged by the Crown as dangerous but think it dangerous to the public for some reason other than that assigned by the Crown, they are at liberty to find that element of the offence established upon the footing of their own view as to the reason why the manner of driving was dangerous to the public. But in any case, the jury would need to be told what the expression "dangerous to the public" as used in the section involves. [Emphasis added]
[53] (1966) 115 CLR 44.
[54] Ibid 49.

Barwick CJ also stressed the importance of the trial Judge’s duty to apprise the jury of the features of the driving said to constitute driving in a manner dangerous to the public, in order to clearly differentiate the concept of driving in a manner dangerous to the public from that of negligence.[55] As His Honour said:[56]
The quality of the driving may be deduced from the resultant facts. But where it is sought to make out the relevant quality of the driving by inference from the contemporaneous impact and its consequences, it seems to me to be the more necessary to carefully apprise the jury of the matters to which I have called attention and to keep before them the precise issue they have to try…
…[W]here it is the manner of driving, an expression which can cover a wide and diverse set of facts, it is not enough that the vehicle as driven by the accused has caused death or injury and the accused was negligent, even in some glaring respect. It is essential to define what is charged as the manner of driving, so that when that has been found, the two succeeding questions can be dealt with, namely, was that manner of driving in itself or in its circumstances dangerous to the public and, did the impact which caused the death or injury occur whilst the vehicle was being so driven. Of all of these matters the jury are to be satisfied beyond all reasonable doubt. [Emphasis added]
[55] McBride v The Queen (1966) 115 CLR 44, 50-1.
[56] Ibid 51.
In my view, the appellant’s submissions are correct. The trial Judge did not adequately relate his legal directions to the situation of the alleged manner of dangerous driving to the facts of the case. In so finding, I note that the particulars given by the Crown were not helpful. The two alternative scenarios did not describe, for example, the “excessive speed”, nor the “recklessness”. Apart from the tautology of “speed” and “recklessness” being individually described as alternative components of the offence, they are descriptors of a substratum of fact which may allow that characterisation of conduct to be made.
In my view, the trial Judge did not articulate what matters the jury needed to consider as findings of fact in order to be satisfied beyond reasonable doubt as to whether the offence had been committed. Different factual circumstances were required to be considered in Count 1 as distinct from Count 2, and also in Count 2 itself. There were three ways in which the appellant could be found guilty of Count 2 and in each case there needed to be a distinction drawn between whether or not the appellant had seen Mr Jaric before the collision, or if he had not, whether a reasonable person in the circumstances of the accused should have seen him at the time.
In relation to the second of those two alternatives, it was necessary for the jury to consider all of the matters which were in dispute and make relevant findings. For example, whether they were satisfied that Mr Thompson’s evidence about the appellant doing a burnout was indeed correct. This was important because he was the only witness who described the vehicle being driven in that manner.
Nowhere in the trial Judge’s summing up is there a description of any alleged recklessness, for example whether there was excessive speed, and whether the car was being driven in an erratic fashion. Further, as discussed above, a major issue was the question of lookout, in particular whether the appellant saw or should have seen Mr Jaric. Clearly relevant to this issue was whether Mr Jaric was lying down or standing up. Whilst the trial Judge referred to the evidence about whether Mr Jaric was lying down or standing up, he did not indicate to the jury the relevance of that evidence in relation to the legal element of driving in a manner dangerous to the public. In my view, this should have been done.
Another relevant issue was the angles of the road. There was only a very short distance between the point when the vehicle took off and the point when there was an alleged impact. This was not a long course of driving, it was short and it involved doing an almost 130 degree turn. This may have affected the appellant’s view and focus at the time, as well as the sound of tyres on the road. Once again, the trial Judge failed to direct the jury’s attention to this evidence and relate it to the element of driving in a manner dangerous to the public.
Further, I note that in his record of interview to the police, the appellant admitted that he saw Mr Trimbell, but said that he did not see Mr Jaric. The fact that he saw Mr Trimbell may have in fact distracted him from seeing Mr Jaric’s position. I will discuss the police records of interview in more detail under Ground 3, but at this point I note that the trial Judge did not refer to this evidence, or bring it together for the purpose of allowing the jury to make findings of fact. This process of linking together the law with the facts was critical in enabling the jury to discharge its duty in determining the ultimate issue, namely whether the appellant drove in a manner dangerous to the public in all of the circumstances.
For all these reasons, I consider that Ground 2 has been made out.
Ground 3 – Failure to direct the jury about the defence case
The appellant complains that the trial Judge erred in failing to properly put the defence case to the jury. This ground of appeal is relevant to the convictions on both Counts 2 and 3.
General Principles
The nature of a trial Judge’s duty to put the defence case was summarised in R v Von Einem,[57] where King CJ, with whom Jacobs and Olsson JJ agreed, stated at 216:
Generally speaking … [putting the defence case] … means no more than that [the judge] must state the substance of the defence case and, if appropriate, explain its bearing upon the legal issues in the case. The judge is not obliged to refer to the evidence called by the defence or to repeat the arguments of defence counsel. He may do so, of course, but that is a matter for his discretion. What is important is that the defence should be fairly and impartially presented to the jury. What a fair and impartial presentation involves in a particular case depends very much upon the legal issues in the case, the nature of the defence, the evidence called in support of it and the structure of the summing up.
[57] (1985) 38 SASR 207, 216.
That decision was recently considered in a decision of this Court in R v B, P,[58] where Vanstone J, with whom Doyle CJ and Gray J agreed, said:[59]
The extent to which a Judge must descend to detail in putting the defence varies depending on the circumstances of the trial. As a general rule the Judge must identify the critical evidence and explain its bearing on the legal issues so that the jury fully understand the way in which issue is joined with the prosecution case: R v Whittingham (1988) 49 SASR 67, 69-70.
[58] [2006] SASC 229.
[59] Ibid [37].
A broadly similar statement of principle by the High Court is found in Domican v The Queen.[60] The Court observed that whether an evidentiary matter or argument must be mentioned turns on whether such a reference is necessary to ensure that the jurors have sufficient understanding of the evidence to enable them to fulfil their duty.
[60] (1992) 173 CLR 555, 561 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
The Records of Interview
Counsel for the appellant, Mr Henchliffe, submitted that the Judge failed to explain the defence, as contained in the account of events given by the appellant to the police, during the course of two interviews.
In support of this contention, Mr Henchliffe again relied on the Victorian Court of Appeal decision of R v Zilm.[61]In that case, the trial Judge briefly told the jury that they could watch the videotape of the record of interview, which contained the most important aspects of the defence case, but failed to explain and summarise that evidence to the jury. Eames JA, with whom Callaway and Ashley JJA agreed, found that in doing so the trial Judge failed to properly put the defence case to the jury in a fair manner, and as a consequence, quashed the verdict. In reaching this conclusion, Eames JA referred to the decision of R v Andrakakos,[62] in particular the following passage, where Ormiston JA, after citing the decisions of Alford v Magee[63] and R v De’ Zilwa,[64] held:[65]
“Where no evidence is given or called by the accused, and the only evidential material in his or her favour appears from the record of interview, much discretion will lie in the trial judge as to how that is put to the jury. Sometimes much of that evidence is incoherent and conflicting so that it will not serve the accused's interests to have that repeated verbatim or even in summary form. At other times what appears from the record of interview, though self-serving, may amount to a completely different account of events, about which the jury should be reminded in some way or another. Again, although a general summary of what the accused contends through their counsel can suffice, a fair exposition of how it is contended that each disputed element of the Crown case has not been established may be preferable.” [Citations omitted and emphasis added]
[61] [2006] 14 VR 11.
[62] [2003] VSCA 170, at [11].
[63] (1952) 85 CLR 437.
[64] [2002] 5 VR 408.
[65] R v Zilm [2006] 14 VR 11, 25, [55].
The trial Judge’s only reference to the police records of interview appears in the following extract of his summing up:
Now, Ladies and Gentlemen, I want to say something about the evidence of the two Records Of Interview of the Accused. In the Records Of Interview, the Accused made Statements and gave explanations to the Police, and the contents of the Records of Interview and must be considered by you, along with all of the evidence in the case. However, the statements and explanations made in the records of interview were not made on oath and not subject to cross-examination. You should give those statements and explanations in the Records of Interview such weight as you see fit, bearing in mind these considerations.
You also need to bear in mind that you do not have to give equal weight to every part of the statements made by the Accused to the Police. You may accept some statements or explanations made by him, and reject others.
Mr Henchliffe submitted that the situation in R v Zilm[66] has some strikingly direct parallels to the situation in this case. He submitted that the appellant’s evidence in the records of interview was central to the defence case, and presented a significantly different complexion to the factual scenario presented by the prosecution. It was submitted that this evidence was directly relevant to the following main issues:
·whether the appellant maintained a defective lookout, namely whether the appellant knew or ought to have known that there were people on the road, and whether the appellant saw or should have seen people on the road;
·the speed and manner in which the appellant drove around the corner; and
·whether in all the circumstances, the appellant’s driving was careless or reckless.
[66] [2006] 14 VR 11.
Further, Mr Henchliffe submitted that with respect to Count 3, a central issue was whether the appellant satisfied the jury, on the balance of probabilities, that he was unaware the accident had occurred (when his car ran over Mr Jaric) and his unawareness was not due to carelessness or recklessness. It was submitted that the appellant’s own explanations, as contained in the two records of interview, were central to whether this defence could be established.
As a consequence, it was argued that in simply referring to the records of interview without any explanation of their contents, the trial Judge failed to appropriately put the defence case to the jury. Mr Henchliffe submitted that the importance of the appellant’s explanations and their strong relevance in establishing a defence warranted, at the very least, a reminder of these explanations and how they related to the legal elements and the defence case.
In the circumstances, I accept the appellant’s submission that the failure to summarise the major issues contained in the records of interview meant that the defence case was not fairly put to the jury. Given the significant bearing of this evidence on the issues in the case, the trial Judge was obliged to explain how the appellant’s evidence in the records of interview related to the legal elements, rather than simply refer it to the jury for their consideration, that is leave them the video tapes to watch in the jury room. His Honour clearly failed to do so, and as a consequence I find Ground 3 made out on this basis alone.
Other witnesses
Mr Henchliffe has also raised further complaints about the trial Judge’s directions in relation to evidence given by other witnesses which he argued tended to exculpate the appellant.
Evidence of Mr Trimbell
Mr Trimbell gave the following evidence about the appellant’s reaction after he was told that he had run over someone with his car.
Q. Before you went to the police the next morning, you actually went around to Mick's house, didn't you.
A. Yes.
Q. Early in the morning.
A. Yes.
Q. So this happens late on 16 March. Early hours of the next morning -
A. On the 17th, yes.
Q. And you told him that he'd run someone over, didn't you.
A. Yes.
Q. And how did he react to that.
A. Spun right out.
HIS HONOUR
Q. Sorry, what was that answer.
A. He spun right out. He couldn't believe it.
Mr Henchliffe submitted that in refusing to give this direction, the trial Judge failed to fairly present the defence to the jury, because the prosecution was afforded the opportunity of relying on this type of evidence, and as a consequence the same should have been afforded to the defence.
During closing addresses, defence counsel requested the trial Judge to direct the jury that this evidence could be used as circumstantial evidence of the appellant’s state of mind, that is, his lack of knowledge as to whether he had run anyone over. It was submitted that this evidence was directly relevant to the defence case for Count 3, namely failing to stop and give assistance after an accident, contrary to s 43 of the Road Traffic Act 1961. I note that pursuant to s 43(3) of the Road Traffic Act:
It is a defence to a charge of an offence against subsection (1) to prove that—
(a) the defendant was unaware that the accident had occurred and that the defendant's lack of awareness was reasonable in the circumstances…
In reaching his decision, the trial Judge appears to have been of the view that the only relevance of the evidence was that it tended to support the appellant’s statements in the record of interview to the effect that he had not seen anyone on the road. The Judge also appears to have been of the view that it was hearsay because the evidence was not only being proffered as circumstantial evidence of the accused’s state of mind, but also as the truth of his state of mind.
Was the Judge correct?
Mr Trimbell’s evidence that the appellant “spun right out” was not an out of court statement indicative of the appellant’s state of mind. At best it was a description of conduct from which it could be inferred that the appellant’s state of mind was that he did not run over the victim. As Mason CJ said in R v Walton,[67] “…conduct indicative of such intentions is indirect and circumstantial”. The majority (Wilson, Dawson and Toohey JJ) also said:[68]
When a person's state of mind is relevant, evidence tending to prove that fact is admissible. That evidence may, of course, take the form of conduct on the part of the person whose state of mind is in question from which the state of mind might be inferred.
[67] (1989) 166 CLR 283, 289.
[68] Ibid 300; See also Pollitt v The Queen (1992) 174 CLR 558.
The evidence of the reaction of the appellant as described by Mr Trimbell, namely that the appellant “spun right out” was being proffered for a non-hearsay purpose, namely circumstantial evidence of the appellant’s conduct from which the jury may be able to infer his state of awareness as to whether he had hit the victim. I consider that this evidence was technically admissible. However, it is complicated by the fact that it is linked with an additional statement by Mr Trimbell that: “He (the appellant) couldn’t believe it”. This latter statement was inadmissible on any basis as it was a conclusion reached by Mr Trimbell as to the appellant’s state of mind and there was no foundation given for such a conclusion by reference to either what the appellant did or said.
While there are some circumstances in which evidence as to conduct of an accused may contain an express or implied assertion which would be admissible to prove a state of mind, in other circumstances the evidence should properly be excluded as it is too tenuous and its probative value is slight[69]
[69] Ibid 304-5.
The ultimate question on appeal is whether in the circumstances the trial Judge erred in refusing to give a direction as sought by the appellant. In my view, the relevance of the evidence, namely the observed conduct of the appellant being “spun right out” was so vague and lacking in precision and descriptive foundation, that its probative value was slight. The trial Judge properly exercised his discretion not to direct the jury on it.[70] Accordingly, the appellant’s submission fails on this aspect.
Other evidence
[70] See Pollitt v The Queen (1992) 174 CLR 558, 603.
Mr Henchliffe argued that the trial Judge inadequately put the defence case to the jury in that he failed to remind them of the following evidence:
·the evidence of Mr Matthew Trimbell, Ms Lynette McKenna and Mr Vicenzo Lovianco, who said that the car was driven in a normal manner and not at an excessive speed;
·Ms McKenna’s evidence that Mr Jaric looked like he had put his hands on the car and kicked out at the car, and her subsequent opinion that he may not have got his legs caught and got hit if he didn’t do that; and
·the photos (Exhibit P7) which showed that the appellant’s car was completely undamaged, apart from a slight scuff mark on the front bumper on the driver’s side, which was relevant to the issue of whether the victim was standing up or lying down when the car struck him.
In relation to this last omission, Mr Henchliffe submitted that the only reasonable inference that could be drawn from the absence of damage to the appellant’s car was that the victim must have been lying down on the road when he was initially struck. I reject this submission, as there was insufficient evidence to support such an inference and to do so would be engaging in speculation.
However, in relation to the other evidence outlined above, I agree with Mr Henchliffe’s submission that these were aspects of the defence case which should have properly been put to the jury. Whilst the trial Judge summarised the two alternative bases of the prosecution case, and provided general directions about the jury’s role as the trier of fact, inferential reasoning, the elements of the offences and some aspects of the evidence and submissions of counsel, he failed to address important aspects of the evidence relevant to the defence case and failed to explain how they related to the legal issues. Having viewed the summing up as a whole, I consider that the trial Judge did not fairly presented the defence case to the jury, and as a consequence of this failure, the Jury was at risk of having a one-sided view of the issues in carrying out its duties.
Ground 4 – Conviction on Count 2 unreasonable and not supported having regard to the evidence, or a miscarriage of justice
The appellant pointed to a number of alleged evidentiary deficiencies, which he submitted, rendered the verdict on Count 2 to be unreasonable, not supported by the evidence or a miscarriage of justice. These alleged deficiencies included:
·the absence of direct evidence supporting the tyre marks on the road having been left by the appellant vehicle;
·the overwhelming evidence of witnesses that the car did not brake;
·the unlikelihood of tyre marks being left by the front wheel of the appellant’s vehicle;
·the conflict in evidence as to where the point of impact occurred; and
·the position of Mr Jaric on the road.

In considering these alleged deficiencies and inconsistencies as referred to by the appellant, it is necessary to have regard to the test to be applied. In M v R,[71] the majority (Mason CJ and Deane, Dawson, Toohey and Gaudron JJ) concluded that in order for this ground to be made out, an appellate court would need to be satisfied that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence. However, in answering that question, the appellate court must pay full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and that the jury has had the benefit of having seen and heard the witnesses.
[71] (1994) 181 CLR 487.
Applying this test, and bearing in mind that many of the points made by the appellant concern the assessment of witnesses which differed, I am not satisfied that it was not open to the jury to find the appellant guilty of Count 2 as so much depended on the jury assessment of which witnesses they were prepared to accept as having given credible evidence and their findings on disputed evidence. I do not consider that Ground 4 has been made out.
I now turn to whether or not a re-trial should be ordered.
In view of the fact that I am not satisfied that Ground 4 has been made out, this is a sound basis upon which the general principle should be applied, namely that if there is evidence upon which a jury might well convict the appellant, the interests of justice will generally demand a re-trial. I do not consider that it would be unjust to the appellant in the particular circumstances to order a re‑trial.
Conclusion
For the aforementioned reasons I would allow the appeal, set aside the convictions and order a re-trial on Counts 2 and 3 on the Information.
KELLY J: I agree that the appeal should be allowed for the reasons expressed by the Chief Justice and in particular his comments about grounds 1 and 2 of the appeal.