R v Jaeschke - [2007] SASC 321

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JAESCHKE
[2007] SASC 321
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Layton)
31 August 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF SUMMING UP AS A WHOLE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
Appeal against conviction - causing death by dangerous driving - whether Judge gave jury adequate instructions on application of general directions about dangerous driving to circumstances of case - whether Judge erred in admitting, or failing to direct, on certain expert evidence - whether in the circumstances there has been a miscarriage of justice.
Held - summing up fair and adequate - no risk of miscarriage of justice resulting from admission, or treatment, of expert evidence - appeal against conviction dismissed.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Death by dangerous driving - appeal against sentence - discussion of factors considered by Judge in sentencing.
Held - head sentence within appropriate range - non-parole period relatively merciful - open to Judge not to suspend sentence - appeal against sentence dismissed.
Criminal Law Consolidation Act 1935 (SA) s 19A, referred to.
R v Greenham (1997) 25 MVR 495, discussed.
Jiminez v The Queen (1992) 173 CLR 572; Makita (Australia) Pty Ltd v Sprowls (2001) 52 NSWLR 705; McBride v The Queen (1966) 115 CLR 44; The Queen v Mayne (1975) 11 SASR 583, considered.

R v JAESCHKE
[2007] SASC 321
Court of Criminal Appeal: Doyle CJ, Anderson and Layton JJ

DOYLE CJ: Mr Jaeschke was found guilty by a jury of causing the death of Mr Cannon by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). The trial took place in the District Court.
He appeals by leave against the conviction and against the sentence imposed on him. The appeal against conviction raises three issues.
First, whether the Judge gave the jury adequate instructions on the application of his general directions about dangerous driving (which are not criticised) to the circumstances of the case.
Second, whether the Judge erred in admitting certain expert evidence, or in failing to direct the jury to disregard it. Mr Lokan gave evidence, based on certain assumptions about the amount of alcohol consumed by Mr Jaeschke, as to the likely concentration of alcohol in Mr Jaeschke’s blood at the relevant time. Professor White gave evidence, drawing in part on the evidence from Mr Lokan, about the effect of alcohol on the physical and mental capacities of a normal person, and on the ability of such a person to drive a motor car. The Judge’s directions on this topic are criticised as well.
The third issue is whether, in all the circumstances, there has been a miscarriage of justice because the jury, acting reasonably, must have had a reasonable doubt on the question of whether Mr Jaeschke’s manner of driving could be characterised as dangerous. In a nutshell, the submission is that there was either no evidence, or insufficient evidence, as to certain significant features of the incident, and that accordingly there was insufficient evidence for the jury to arrive at a conclusion that Mr Jaeschke’s departure from the standard of driving expected by law could be characterised as driving in a manner that was dangerous.
The trial
What follows is a bare outline of the events in question. I have omitted a number of matters that were the subject of evidence at trial, some of them canvassed at some length. I do so because they are not relevant to the issues argued on appeal.
On the night of Friday 14 February 2003 Mr Cannon, Mr Jaeschke and others were drinking at the Paruna Tavern. Paruna is a small rural town not far from the border with Victoria, and not a great distance south east of Loxton. The evidence from a number of different witnesses suggested that each of Mr Cannon and Mr Jaeschke consumed a substantial amount of alcohol over the course of the night. However, the estimates of the witnesses varied somewhat, as did the evidence as to the timing of the drinking.
It appears that Mr Cannon left the Tavern on foot, after a disagreement with his partner, Ms Fitzpatrick. I gather that this was around midnight. Mr Cannon began walking home with Ms Fitzpatrick’s son. They lived at Wanbi, about 30 kilometres away.
Ms Fitzpatrick was told that Mr Cannon had set off for home, and so some time later she set off after him in a motor car. She found Mr Cannon and her son walking along the road. She picked them up. Mr Cannon wanted to drive, but Ms Fitzpatrick would not agree. Mr Cannon got out of the car, apparently intending to resume his long walk home. Ms Fitzpatrick then drove home with her son. Later events indicate that Mr Cannon must have continued to walk towards Wanbi.
It appears that Mr Jaeschke left the Paruna Tavern sometime between about 12.30 am and 1.00 am. It might have been up to an hour after Mr Cannon left. Mr Jaeschke was then in a relationship with Ms Collins. They lived not far to the east of Paruna. At this particular time Ms Collins was living in a bus at the back of the Paruna Tavern.
Ms Collins returned to the bus to sleep at about 11.00 pm, having spent time in the Tavern prior to that.
Mr Jaeschke said that after leaving the Tavern he slept for about an hour in the bus. He wanted Ms Collins to come with him to his home, but she declined. He then left, and drove off in his motor vehicle which was a four wheel drive Toyota Landcruiser. For reasons that do not matter he drove west in the direction of Alawoona, although that is not where he lived.
Some distance along that road, Mr Jaeschke told the Court, he saw something lying on the road, on his side of the carriageway. It was a bitumen road about 6 metres wide.
The case proceeded on the basis that what Mr Jaeschke said he saw on the road was Mr Cannon, lying across Mr Jaeschke’s half of the carriageway, with his head close to the centreline and his feet close to the side of the road. It is not known how Mr Cannon came to be there.
Mr Jaeschke said that he was travelling at a little less than 100 kilometres per hour. He thought that what he saw was a kangaroo or an animal. He said that he could have been as close as 20 metres or 30 metres when he saw the object on the road. [794] Mr Jaeschke said that he swerved to the left, his vehicle moving substantially on to the gravel verge, with only the right side wheels remaining on the bitumen. He did not strike the object.
As he passed the object he realised that it might not be an animal. He stopped, turned his vehicle around and came back. On getting out of his vehicle he realised that it was Mr Cannon lying on the road, and that he was seriously injured.
At about this time a car driven by Mr Hartmann, who had also been at the Paruna Tavern, came along. In the car was Ms Collins. They were going to Mr Hartmann’s house at Alawoona. The evidence of Mr Hartmann and Ms Collins was to the effect that they saw Mr Cannon on the road, but thought that he and Mr Jaeschke were playing some kind of joke. Their evidence was that Mr Jaeschke did not ask for help. Thinking that Mr Jaeschke and Mr Cannon were simply “mucking around”, after stopping briefly, they drove on.
Mr Jaeschke decided that he should take Mr Cannon to hospital. He put him into his car. When he got to Alawoona he realised that Mr Cannon was dead and so he stopped there. He went to the house of a resident. The police were telephoned soon after, and this was recorded as being at 3.24 am.
Mr Jaeschke told the police from the outset that he had seen an object on the road, thought it was a kangaroo, and tried to avoid it. The police investigation unfolded thereafter. In the early stages the police treated Mr Jaeschke as merely a witness. For this reason they did not require him to submit to a breath test. It was only as events unfolded, and as evidence was gathered, that the police began to suspect that Mr Jaeschke might have driven over Mr Cannon. It was some time before Mr Jaeschke was charged.
The prosecution case at trial was that Mr Cannon was lying on the roadway, across the half of the carriageway on which Mr Jaeschke was driving. The prosecutor argued that Mr Jaeschke had driven over Mr Cannon with the right side wheels of his motor car, without any significant braking or swerving or other evasive action.
The prosecutor argued that if the jury found that this is what happened, the jury could and should find that Mr Jaeschke drove in a manner that was dangerous. The prosecutor did not argue that the bare fact that Mr Jaeschke had driven over Mr Cannon established that Mr Jaeschke had driven in a dangerous manner. The prosecution case was based on a conclusion to be drawn from the failure to take any evasive action.
There was evidence that there was an almost full moon that night, but no expert evidence about visibility at the place in question, or about cloud cover at the relevant time and place. That is not surprising. A number of the witnesses said that it was dark.
The prosecutor did not argue that Mr Jaeschke was travelling at a speed that was inherently dangerous or that was excessive in the circumstances.
The prosecutor argued that Mr Cannon was run over on a relatively straight stretch of road, with a mild bend to the left leading up to the approximate point of impact. The prosecutor argued that Mr Jaeschke should have seen Mr Cannon on the road, or should at least have realised there was an object on the road that required evasive action, in sufficient time to take action by braking and swerving and thereby avoiding running over him. The failure to take any evasive action (if the jury so found) indicated that Mr Jaeschke’s lookout and attention to the road was seriously deficient. The prosecutor did not challenge Mr Jaeschke’s evidence that he was travelling with his headlights on low beam, but made the point that that was all the more reason to keep a good lookout.
In short, the prosecutor argued that if the jury were satisfied that Mr Jaeschke drove over Mr Cannon without taking any significant action to avoid doing so, the jury might and should conclude that that was a result of him driving with such a defective lookout that his driving could be characterised as dangerous. The prosecutor’s argument relied on a finding that Mr Jaeschke did not brake or significantly reduce his speed before the impact, and did not swerve. The prosecutor seemed to accept that the outcome would be different if Mr Jaeschke had taken significant evasive action, but had been unable to avoid an impact.
The prosecutor put to the jury that Mr Jaeschke’s evidence that he saw an object on the road, thought it was an animal, moved to the left and avoided an impact, was a lie. He made the point that, in effect, Mr Jaeschke acknowledged that he should have been able to see Mr Cannon in time to avoid the impact.
The prosecutor relied on the evidence about Mr Jaeschke’s consumption of alcohol that night, general as it was. He relied also on the expert evidence from Mr Lokan as to levels of blood alcohol based on an assumption as to the amount of alcohol consumed, and as to rates of absorption and exclusion from the bloodstream. He also relied on the evidence from Professor White as to the effect of various levels of alcohol on physical and mental faculties. But the prosecutor relied on this material only as suggesting a possible explanation for poor lookout. He did not suggest that Mr Jaeschke was so affected by alcohol that it was dangerous for him to drive in that state. No doubt the prosecutor’s approach was influenced by the fact that on the evidence of Mr Lokan, and assuming certain rates of elimination which were possible, Mr Jaeschke might have had no alcohol in his blood when the impact occurred, if it did occur.
The fact that the jury convicted Mr Jaeschke indicates that the jury accepted that he drove over Mr Cannon. The jury were told that they must acquit Mr Jaeschke unless they made that finding. There was plenty of evidence to support that conclusion, despite the fact that Mr Jaeschke continued to deny making impact. The jury must have rejected his claim that he swerved left, almost wholly off the road, and avoided an impact.
Having regard to the manner in which the case was conducted, and was left to the jury by the Judge, the finding of guilt also indicates that the jury found that Mr Jaeschke did not brake significantly (there were no signs of heavy braking), did not swerve, and drove straight across Mr Cannon. That was what the prosecution evidence suggested.
It follows that the jury must have found that Mr Jaeschke did not react to the presence of Mr Cannon on the road at all, or in time to take any evasive action.
It therefore seems clear that the jury decided, in light of the directions by the Judge, that Mr Jaeschke’s lookout was so defective that he was driving in a dangerous manner. It is this aspect of the jury’s reasoning that is in issue on the appeal. There is no challenge to the conclusion that the jury must have reached that Mr Jaeschke drove over Mr Cannon and caused his death.
Driving in a manner dangerous to the public
This case does not call for any detailed analysis of what amounts to driving in a manner dangerous to the public.
In McBride v The Queen (1966) 115 CLR 44 the High Court considered the meaning of driving in a manner dangerous to the public. In a passage often referred to with approval in later cases, Barwick CJ said at 49-50:
The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public, but the need for death or injury to a person to result from impact with a vehicle so driven may make that question unlikely to arise, though the possibility of its doing so must be acknowledged.
In Jiminez v The Queen (1992) 173 CLR 572 the High Court referred with approval to this passage. The majority (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) said at 579:
The manner of driving encompasses "all matters connected with the management and control of a car by a driver when it is being driven" R v Coventry (1938) 59 CLR 633 at 639. 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. (footnotes omitted)
The concept identified in these passages is clear enough, although its application to a given set of circumstances may require careful assessment.
It is the practice in this State for judges to direct juries in accordance with these principles. The form of the direction commonly given is based on a direction given by Napier CJ in The Queen v Duncan, which appears as a note to the report of the decision in The Queen v Mayne (1975) 11 SASR 583. There, Bray CJ said at 585:
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). Moreover it is also customary and usual, and probably, in view of the provisions of s 14a, obligatory, to tell the jury of their power to convict of a lesser offence under that section and to invite them to consider in an ascending order of seriousness whether the manner of driving they find against the accused was not negligent at all or was such as to show merely that he was driving without due care or attention or such as to be dangerous to the public. If they are satisfied beyond reasonable doubt that it falls into the third category, they then have to consider further whether it caused the death alleged. (footnote omitted)
The Judge explained to the jury the meaning of driving in a manner dangerous to the public consistently with these authorities. He did so in general terms, and in a manner that draws on the summing up by Napier CJ in Duncan’s case. This was done clearly and adequately, early in the summing up. As well, the Judge gave to the jury a written memorandum that set out in full this part of his directions. No complaint was made about this aspect of the Judge’s directions.
The adequacy of the Judge’s directions applying the law to the facts
Mr Edwardson QC, counsel for Mr Jaeschke on appeal, submits that the Judge did not sufficiently relate the general directions about driving in a manner dangerous to the public to the facts of the case.
He submits that the Judge did not direct the jury’s attention sufficiently to the need to assess Mr Jaeschke’s driving from the position of a reasonable person in Mr Jaeschke’s situation. There was no evidence as to the lighting conditions at the place where the accident occurred. There was no evidence about the capacity of a reasonable person to identify an object on the road such as the object on the road (as he thought) that Mr Jaeschke encountered, to realise that this object was in fact a person, and then to take evasive action. There was no evidence about the distance at which Mr Cannon’s body would have been visible from an approaching vehicle travelling with its lights on low beam. There was no evidence about the reaction time of an average driver in such a situation. Although these points relate also to the third ground of appeal, Mr Edwardson submits that the Judge should have directed the attention of the jury specifically to these matters, and at the least should have related them to the situation of a reasonable person in Mr Jaeschke’s position as driver. Mr Edwardson submits that the Judge should have asked the jury, in terms, to consider whether a reasonable person in the situation of Mr Jaeschke would have observed Mr Cannon lying on the road in sufficient time to take evasive action and to avoid running over him.
In approaching this matter, it is helpful to bear in mind a comment made by Barwick CJ in McBride. He said at 49:
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.

I have already outlined how the prosecution put its case to the jury. In brief, it was that if the jury were satisfied that Mr Jaeschke drove over Mr Cannon without taking any evasive action, having regard to the circumstances the jury could infer that his lookout was so defective as to amount to dangerous driving. This concept was put by the prosecutor in a straightforward manner. It was put in his opening address and in his closing address.
Although the issue of whether Mr Jaeschke’s car in fact drove over Mr Cannon’s body was the subject of much contention and much evidence at trial, in his submissions the prosecutor clearly distinguished between the question of whether impact was made with Mr Cannon’s body, and whether the jury should infer from the circumstances of that impact that Mr Jaeschke drove in a dangerous manner.
After giving the jury some general directions, including the directions about what amounts to driving in a manner dangerous to the public, the Judge embarked on the facts.
He gave the jury a thorough outline of the prosecution evidence. Then he explained how the prosecution relied on circumstantial evidence in proof of its case. In the course of doing so he said:
[240]With respect to ingredient number 2, that is, whether the accused drove in a manner dangerous to the public, or particularly whether you are satisfied of that beyond reasonable doubt, the fact relied upon by the prosecution in proof of its case on that element is what is said to be the defective lookout and the things which it is alleged might have contributed to the defective lookout; things such as alcohol, reaction time, visibility and so on.
After a break he repeated his direction on circumstantial evidence, repeating the direction just given.
The Judge then gave the jury an extended summary of Mr Jaeschke’s evidence.
After that the Judge turned to the addresses of counsel, and summarised them. He said to the jury:
[349]Mr Pearce submitted that, on the Crown case, the accused has run straight over the deceased. There has been no swerving. Not one wheel was outside the lane of travel for cars going to Alawoona. The accused simply did not see Mr Cannon. Mr Pearce asked if it was because of the accused’s inability to react, to see, to manoeuvre his car, whether those faculties were impaired by his alcohol intake and his grossly defective lookout. Mr Pearce suggested that that was driving in a manner dangerous to the public. Had the accused been keeping a proper lookout, he would have at least seen Mr Cannon in time to avoid running over him.
He then referred to some submissions based on the number of metres travelled per second at given speeds, to the opportunity that Mr Jaeschke had to see and to react, to the configuration of the road and to the circumstances of the impact. He summarised the address by counsel for the Defence including a reference to the point made that Mr Jaeschke was confronted by an emergency, that he had been driving along in the dark and could not reasonably have been expected to avoid Mr Cannon lying on the road.
In this final part of his summing up he again distinguished carefully between the issue of whether Mr Jaeschke ran over Mr Cannon, and the issue of whether his driving was in a manner dangerous to the public.
I am satisfied that the summing up was fair and adequate. Some judges might have referred specifically to issues of the kind identified by Mr Edwardson, and might have invited the attention of the jury to them. But each of them is an obvious feature of the situation, and all of them were alluded to by counsel in one way or another. A fair and adequate summing up did not require the Judge to descend to the level of detail suggested by Mr Edwardson. There could be some drawbacks in doing so. Once the Judge descends to detail, a reference to one particular factor can provoke the need, for balance or for other reasons, to refer to another factor. A point can be reached at which the Judge may seem to be arguing out the details before the jury.
I consider that the Judge, in the language of Barwick CJ, did isolate for the jury the features of the driving which the Crown charged to be dangerous. The matters that Mr Edwardson identifies were obvious considerations in deciding whether Mr Jaeschke drove in a manner that was dangerous to the public, but did not have to be isolated and identified to enable the jury to understand what the prosecution case was. Nor was it necessary, as a matter of balance and fairness, for each of these matters to be isolated and identified.
I do not consider that this ground of appeal is made out.
The expert evidence
There is no doubt that the evidence given by various eye witnesses about the consumption of alcohol by Mr Cannon and by Mr Jaeschke was relevant.
This is not a case in which the prosecution suggested that Mr Jaeschke was, because of alcohol, incapable of exercising effective control of his vehicle, and so driving in circumstances that were dangerous. The prosecution case was that the consumption and effect of alcohol might explain why Mr Jaeschke’s lookout was defective. The main issue for the jury, in this respect, was whether Mr Jaeschke’s lookout was defective, and so defective that he was driving in a manner dangerous to the public. The effects of alcohol were also of some relevance to the reliability of what Mr Jaeschke said to police on the night.
This case is the kind of case referred to by Cox J in R v Greenham (1997) 25 MVR 495, when he said at 498:
… However, the more common situation under s 19a is a moderate (or unknown) quantity of alcohol coupled with some bad driving. Often the expert will say that the effect of the alcohol, viewed in isolation, is inconclusive – the defendant may or may not have been able to exercise effective control – although the jury, with the evidence of bad driving before them, may be willing to make a positive finding of incapacity. The jury, in other words, may perceive a causal link between the alcohol and the bad driving and conclude in all the circumstances that the vehicle was driven dangerously. …
Cox J went on to say at 500:
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 judgment 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 lookout 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 affected 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. …
Mr Lokan gave evidence of a kind often given in cases like this. He was asked to assume that a person consumed a certain number of specified drinks of specified alcoholic strength between 6.00 pm on 14 February and 12.30 am on 15 February. Two different bases were put to him. One appears to be based on what Mr Jaeschke said to the police (he said in evidence it was not correct) and the other added to that basis some evidence about the consumption of some drinks to which Mr Jaeschke had not referred. Mr Lokan was asked to assume that the person was sober at 6.00 pm, and weighed 110 kilograms. He was asked to estimate the blood alcohol concentration of the hypothetical person at 2.30 am.
He gave a range of results. As he explained, the blood alcohol level at 2.30 am, in the hypothetical situation, would be affected by just when the drinks were consumed during the period in question, the rate at which the person in question eliminated alcohol from his blood (and this could vary), and by other factors. His estimates ranged from a high of 0.13% to a low of 0.09%. But, as I have already said, he emphasised that there could be no precision about this. He agreed that if the rate at which a particular person eliminated alcohol from blood was higher than the rate assumed by him (a mid range figure) the blood alcohol concentration at 2.30 am would be lower. He agreed in cross-examination by counsel for Mr Jaeschke that if the elimination rate was at the high end of the accepted range, the hypothetical person might have had no alcohol in his blood at 2.30 am.
As I have already said, this evidence was based on a drinking pattern that was based on admissions made by Mr Jaeschke to the police. The evidence of the witnesses about the drinking pattern varied significantly, and was not such as to permit the kind of precision that Mr Lokan was asked to assume. There was no evidence proving that the alcoholic content of the drinks consumed by Mr Jaeschke was that assumed by Mr Lokan. Mr Jaeschke’s weight was not proved in evidence.
Mr Edwardson submits that Mr Lokan’s evidence was not admissible because the basis for Mr Lokan’s opinion was not made out. The jury should have been directed to disregard it. He also submits that the Judge did not adequately direct the jury about the need for the basis to be made good before they could act on the evidence. He submits that the possibility of alcohol being present in Mr Jaeschke’s blood at the time of impact was speculative, and that the jury should have been directed that there was no basis upon which they could conclude that alcohol had any effect on his outlook.
Professor White gave expert evidence about the effect of alcohol on a driver, and in particular on the reaction time of a driver. Some of his evidence referred to particular blood alcohol concentrations, and so linked to the evidence of Mr Lokan. Mr Edwardson submits that Mr Lokan’s evidence, for the reasons indicated, failed to provide an evidentiary basis for the opinions of Professor White. He submits that Professor White’s evidence should have been disregarded because there was no basis for the intermediate conclusion that Mr Jaeschke was affected by alcohol, and so no basis for making use of the opinions of Professor White.
Mr Edwardson is correct in submitting that the basis for the opinions of Mr Lokan and Professor White was not established in the manner said to be necessary in Makita (Australia) Pty Ltd v Sprowls (2001) 52 NSWLR 705. By this I mean that I agree with Mr Edwardson that, on the evidence before the jury, the jury could not accept Mr Lokan’s evidence as establishing a particular blood alcohol concentration in Mr Jaeschke’s blood at 2.30 am. The basis for such a conclusion was lacking.
But I do not understand the evidence to have been put forward, or to have been put before the jury, on this basis. My understanding is that Mr Lokan’s evidence was put forward to explain to the jury the process of absorption of alcohol into the bloodstream, and the process of elimination of alcohol from the bloodstream, and how, when a person is consuming alcohol, the level of alcohol in the bloodstream can rise and fall depending upon the pattern of drinking. The particular calculations made by Mr Lokan were intended to be illustrative, as I understand the evidence. The evidence was of limited value. But it was admissible on this basis.
Much the same comment applies to the evidence of Professor White. That evidence was admissible because it explained how alcohol can affect the physical and mental capacities of a person, and in particular its possible effects on the behaviour of a driver of a motor vehicle. To the extent that Professor White referred to particular blood alcohol concentrations, and appeared to link his evidence to that of Mr Lokan, that also was by way of illustration or explanation only.
The Judge told the jury, in the usual terms, that it was for them to decide what use they made of the expert evidence. He concisely summarised the effect of Professor White’s evidence at [126]. He explained what I think is common knowledge now, that alcohol can affect reaction time by slowing it. He explained that the effect can be more noticeable if there is a more complex driving task to undertake. The Judge also summarised Mr Lokan’s evidence: at [216]-[218]. He reminded them of Mr Lokan’s concession in cross-examination that if the elimination rate was at the upper end, there might be no alcohol in the blood of the hypothetical person at 2.30 am.
At the end of his summing up, responding to a request by counsel for Mr Jaeschke, the Judge returned to this topic. He told the jury specifically that if the assumptions on which Mr Lokan’s evidence was based were not proven, “then the opinion falls with it”. He made the point that Mr Jaeschke’s weight had not been proved. He then repeated that “an opinion is based upon an assumed fact and it is only as good as the proof of the assumed fact”: at [398]-[400].
I agree that the Judge should have pointed out to the jury, when dealing with Mr Lokan’s evidence, that it was based on a series of assumptions that were not made good, and that they could not use his evidence to arrive at any precise conclusion as to the level of alcohol in Mr Jaeschke’s blood at 2.30 am. There was an element of false certainty to this evidence. It would have been preferable for the Judge to explain to the jury that the way in which to use the evidence was to treat it as an explanation of the process of absorption and elimination of alcohol.
Much the same applies to the evidence of Professor White. The Judge might usefully have told the jury that they could not and should not use Professor White’s evidence on the basis that they could arrive at a specific blood alcohol level for Mr Jaeschke as at 2.30 am.
But, looking at the matter as a whole, I consider that it was clear enough to the jury that in the relevant respects the evidence of Mr Lokan and Professor White was illustrative or explanatory only. While the Judge’s closing direction to the jury about the basis of Mr Lokan’s opinion might have been clearer, it seems to me that it did put the position correctly, and told the jury that if the assumed facts were not made out (and they were not), then Mr Lokan’s opinion had to be put aside. To some extent that overstates things, because, as I have already indicated, Mr Lokan’s evidence still provided a relevant and helpful explanation for the jury about the process of absorption of alcohol.
As what I have said illustrates, in a case like this it is desirable for the prosecutor to avoid leading such evidence in a form that might suggest a false element of precision, or might suggest an attempt to arrive at a conclusion that cannot be reached on the available evidence. Evidence of the kind in question in this case should be put before the jury on a basis that makes it clear that it is explanatory and illustrative only, and should only be used in that fashion.
I consider that the evidence was admissible, on the limited basis that I have explained. The Judge’s directions were adequate, although it would have been better if they had been firmer about the limited value of Mr Lokan’s calculations. It would have been better if the Judge had explained more clearly, in affirmative terms, how the evidence could be used in an illustrative or explanatory fashion. I consider that it was open to the jury to conclude, on the evidence about the consumption of alcohol, that the alcohol consumed by Mr Jaeschke had some effect on his lookout. Looking at the matter as a whole, I am not persuaded that there is any risk of a miscarriage of justice having resulted from the admission of this evidence, or from the manner in which it was dealt with at trial.
Was it open to the jury to convict?
I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of Mr Jaeschke’s guilt.
The decision on this ground turns on whether, if the jury was satisfied that Mr Jaeschke drove over Mr Cannon, and was satisfied that he did so without taking any significant evasive action, Mr Jaeschke had driven in a manner dangerous to the public. So the decision turns on two matters of fact, whether Mr Jaeschke drove over Mr Cannon, and whether he did so without taking any evasive action, on a further inference (that this was attributable to a defective lookout), and then on an assessment of whether the manner of driving indicated that Mr Jaeschke’s lookout was so defective that he was driving in a manner dangerous to the public.
There was adequate evidence to support a conclusion by the jury rejecting Mr Jaeschke’s account that he saw an object on the road, swerved left off the bitumen and avoided it. There was adequate evidence to support a finding that Mr Jaeschke drove over Mr Cannon’s body. There was adequate evidence to support a conclusion that Mr Jaeschke drove over Mr Cannon’s body without taking any significant evasive action. As I understand the argument, this aspect of the jury’s reasoning is not challenged.
The real issue is whether, in all the circumstances, it was open to the jury to conclude that these intermediate conclusions led to the further conclusion that Mr Jaeschke’s lookout was so defective that his driving should be characterised as constituting a danger to the public.
That immediately directs attention to the admittedly unusual circumstances of the case (the presence of Mr Cannon, lying on the carriageway in a remote area at night), and to the matters raised by Mr Edwardson (and identified by me when considering the first ground of appeal) on which Mr Edwardson said there was no evidence. Mr Edwardson’s submission is that these considerations lead to the conclusion that one could not say that Mr Jaeschke’s lookout was defective, let alone say that it was so defective that his driving was in a manner dangerous to the public. In a nutshell, the submission on this point is that there was nothing to support a conclusion that a reasonable person in a position of Mr Jaeschke would have seen Mr Cannon’s body on the road, realised what it was (and that it was not an animal or other object), and would have had time to take evasive action and avoid a collision. I do not necessarily agree that the manner in which Mr Edwardson formulates the issue is the correct way to formulate it, but I am content to consider the matter on the basis on which Mr Edwardson put it.
If Mr Jaeschke drove over Mr Cannon without seeing him on the road until it was too late to react, the conclusion that his lookout was defective was inevitable. That conclusion is inevitable even allowing for the fact that it was dark, a country road, and that there was no reason to expect to find a person lying on the road. I do not accept that those circumstances are an explanation for the failure to observe a body lying across the road. Indeed, Mr Jaeschke himself claimed that he had seen an object on the road in sufficient time for him to move to the left and to avoid making contact with the object.
Even if one concludes that Mr Jaeschke’s lookout was defective, it remains necessary to consider whether, in all the circumstances, it was so defective that his driving can be characterised as dangerous.
I consider that it was open to the jury to reach that conclusion. The jury had some general evidence about visibility that night, but any weakness in that evidence seems to me to be of little importance. The case was fought on the basis that Mr Jaeschke’s lights were on low beam, and that they would have illuminated Mr Cannon’s body at some (unidentified) distance before he reached Mr Cannon. I do not agree that evidence about the reaction time of an average driver in this situation would have been of any assistance to the jury. Whether it would have been possible to lead admissible evidence on this point might be doubted.

To my mind, the characterisation of Mr Jaeschke’s driving was pre‑eminently a matter for the jury’s assessment, drawing on their own experience and on their own common sense. As I have said, the assessment was to be made if they concluded that Mr Jaeschke had driven over Mr Cannon, and had failed to see him until it was too late to take any significant evasive action. I see no reason why the jury could not use their own experience to make due allowance, in making that final decision, for the natural visibility at the time and place (to the extent that was relevant), for the unexpected nature of the presence of an object on the road, for ordinary reaction times, and for the effect of headlights on low beam. Accordingly, the lack of specific evidence on the matters identified by Mr Edwardson does not make the jury’s verdict an unsafe one.
The final decision, the assessment of the quality of Mr Jaeschke’s driving, is one on which minds might well differ. The jury’s verdict was by majority. But I do not agree that having regard to all the circumstances, it was not open to the jury to be satisfied that Mr Jaeschke’s driving was appropriately characterised as dangerous to the public. In my opinion that conclusion was open to the jury even though I acknowledge that it is an issue on which minds might differ.
This ground of appeal was supported by two criticisms of the summing up. There is no substance in either criticism. The first is that the Judge told the jury that the issue was whether they accepted Mr Jaeschke’s version of events or the version advanced by the prosecutor. The Judge did not do that. He referred to a submission by the prosecutor that the question was whether events happened as Mr Jaeschke said or as the prosecutor contended, but immediately added that the prosecution contention was that its version of events was established beyond reasonable doubt. Quite apart from that the Judge made it clear on a number of occasions that the jury had to be satisfied beyond reasonable doubt that the prosecution version of events was correct, and that its submissions as to Mr Jaeschke’s manner of driving were correct. The other complaint is that the Judge did not tell the jury that even if they disbelieved Mr Jaeschke’s denial that he had run over Mr Cannon, that conclusion could not be used in proof of any element of the charge. There was no need for such a direction. The directions that the Judge gave, more than once, about the need for proof beyond reasonable doubt, were sufficient. Quite apart from that, in his final remarks to the jury the Judge made it clear to them that even if they were satisfied that Mr Jaeschke drove over Mr Cannon, they then had to consider as a separate issue whether Mr Jaeschke’s driving could be described as driving in a manner dangerous to the public. The Judge made it quite clear that whether Mr Jaeschke drove over Mr Cannon was only the starting point, and that the next question was whether his manner of driving was such that he should be convicted. As I have said, there is no substance in either of these points.
Appeal against sentence
The maximum punishment for the offence, at the time in question, was imprisonment for ten years and licence disqualification for not less than five years. The Judge sentenced Mr Jaeschke to imprisonment for three years. He fixed a non-parole period of 14 months. He disqualified Mr Jaeschke from holding or obtaining a driver’s licence for six years. He declined to suspend the sentence.
The sentence is said to be excessive. Mr Edwardson also submits that the sentence should have been suspended.
The Judge sentenced Mr Jaeschke on the basis that his lookout was so defective that his driving could be characterised as dangerous to the public. He found that Mr Jaeschke had sufficient warning of Mr Cannon’s presence to avoid running over him if he had kept a proper lookout. He found that Mr Jaeschke’s blood alcohol content at the time of impact was less than 0.05%, but more than zero. He found that the alcohol in Mr Jaeschke’s blood had a slight deleterious effect on his driving.
The Judge found that Mr Jaeschke misled the police initially into believing that someone else had run over Mr Cannon. That misrepresentation had delayed a thorough investigation and a prompt prosecution. The Judge acknowledged that Mr Cannon was dressed in dark clothing, and was lying on the road.
He accepted that Mr Jaeschke had suffered because Mr Cannon was a friend of his.
He accepted that Mr Jaeschke’s driving was towards the lower end of seriousness for the offence.
The Judge noted that in 1992 Mr Jaeschke had been convicted of driving with the prescribed concentration of alcohol in his blood. In 1994 he was convicted for driving under the influence of alcohol. These were relevant convictions. The Judge referred to some other offending by Mr Jaeschke, including the fact that some ten months after the accident, shortly after being told that he would be prosecuted, he was found driving with the prescribed concentration of alcohol in his blood. As the Judge remarked, this later conduct indicated a continuing failure to behave responsibly on the road. It suggests that Mr Jaeschke had not learned the lesson that one would have hoped he would learn from the death of Mr Cannon.
The Judge referred to Mr Jaeschke’s personal circumstances. He had a good work record. Apart from his convictions, he was of generally good character and was well regarded. The Judge had before him character references that referred to Mr Jaeschke helping other people.
The head sentence of three years’ imprisonment was a substantial punishment, having regard to the circumstances of the offence. Nevertheless, it is not outside an appropriate range. The unusual nature of the circumstances should not be allowed to divert attention from the fact that, on the evidence, Mr Jaeschke could and should have seen Mr Cannon in time to avoid running over him. His reason for not doing so was his defective lookout. It will never be known how and why Mr Cannon came to be lying on the road. Clearly enough, that created an unusual and dangerous situation. But the fact remains that Mr Jaeschke drove dangerously. It was not an unavoidable accident.
The non-parole period was a relatively merciful one. No criticism could be made of that.
As the Judge said, the question of whether the sentence of imprisonment should be suspended was a difficult one. There were mitigating circumstances. Mr Cannon created an unusual source of danger. But it was an avoidable accident. Mr Jaeschke’s personal circumstances provided some support for a decision to suspend the sentence, but as the Judge noted his past record, and his continuing failure to recognise his obligations as a road user, pointed the other way.
In my opinion it cannot be said that it was not open to the Judge to find that there was not good reason to suspend the sentence.
The appeal against sentence should be dismissed.
Conclusion
For those reasons I would dismiss the appeal against conviction and the appeal against sentence.
ANDERSON J: In this matter I have had the advantage of reading in draft the reasons of Doyle CJ. I agree with His Honour’s conclusions both in relation to the appeal against conviction and also the appeal against sentence.
The facts are set out in the judgment of Doyle CJ. The jury, by a majority, must have concluded that Mr Jaeschke’s lookout on the night in question was defective. Having regard to his lookout in the circumstances in which he was driving, the jury must have then proceeded, on the basis of the directions given to them, to find that his driving was dangerous.
I agree with Doyle CJ’s reasoning as to the directions given by the trial judge, and in particular that the jury was properly instructed as to the features of Mr Jaeschke’s driving which the prosecution relied on as being dangerous.
The accident happened on a relatively straight stretch of road at night in a remote country area. Mr Jaeschke’s evidence was that he was driving with his lights on low beam at a speed of just less than 100 kilometres per hour.
Mr Jaeschke had consumed alcohol prior to driving and the relevance of the evidence as to his consumption of alcohol was, as suggested by Doyle CJ, to give a potential explanation for his defective lookout as distinct from any suggestion that he was so affected by alcohol that he should not have driven.
I agree with the reasons of Doyle CJ in relation to the admission of evidence relating to the consumption of alcohol and any conclusions to be drawn from that evidence.
It seems to me that in relation to Mr Jaeschke’s driving, having consumed some alcohol and then having proceeded to drive on a country road at night with his lights on low beam at a speed of just less than 100 kilometres per hour, it was incumbent upon Mr Jaeschke to be particularly vigilant. His choices were to drive with his lights on high beam, to give him more chance of observing something on the roadway, or to drive at a lower speed or both.
His evidence about not using high beam so as not to attract kangaroos seems somewhat strange. However, if the evidence was accepted then it certainly required an even higher degree of vigilance by Mr Jaeschke, because he must have reasoned that he needed low beam because there was some likelihood of encountering kangaroos on the road.
Mr Jaeschke said that he was about 20 or 30 metres away from an object on the road when he first saw it. He said he thought it was a kangaroo. If he had applied his brakes at that stage he might have avoided a severe impact with the object on the road. It seems that he did not apply his brakes at any stage.
I cannot see that it makes any difference whether he thought that it was a kangaroo or any another animal or object on the road because without attempting to stop or minimise his impact speed he increased the risk of a serious accident. That in turn put other road users at risk should there be a vehicle travelling behind him or coming towards him from the opposite direction.
I can see good reason why the jury would have decided in those circumstances that his driving was dangerous. In my opinion it was. Mr Jaeschke told the court that he reacted by attempting to go around the object but the jury clearly did not accept that. As pointed out by Doyle CJ there was ample evidence for the jury to conclude on the basis of the forensic evidence that Mr Jaeschke’s vehicle collided with the body on the road.
If one carries out the exercise of examining the position from the viewpoint of a reasonable driver, one reaches the conclusion that I have reached, namely, that in all the circumstances Mr Jaeschke drove at too high a speed, with an inadequate look out, with his lights on low beam and having consumed some alcohol and then failed to take appropriate evasive action at the earliest possible opportunity.
It is for these reasons, and the reasons expressed by Doyle CJ, that I agree that the appeal should be dismissed.
LAYTON J: I have had the opportunity of reading in draft form the reasons for judgment of the Chief Justice and Anderson J. I agree that the appeal against conviction and the appeal against sentence should be dismissed and I agree with their reasons.