R v Rudebeck
[1999] VSCA 155
•29 September 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 301 of 1998
| THE QUEEN |
| v |
| JAMES FRANCIS RUDEBECK |
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JUDGES: | TADGELL, ORMISTON and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 26 and 27 April 1999 | |
DATE OF JUDGMENT: | 29 September 1999 | |
MEDIA NEUTRAL CITATION: | [1999] VSCA 155 | |
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CRIMINAL LAW – Culpable driving causing death – Heavily-loaded articulated vehicle striking roundabout at intersection and overturning to crush parked car and killing occupants – Whether convictions unsafe – Jury entitled to be satisfied beyond reasonable doubt that substantial operating cause of accident was defendant's gross negligence attributable to driving at inappropriate speed or while excessively fatigued.
Crimes Act 1958, s.318(1), (2)(b).
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr T. Gyorffy | P.C. Wood, Solicitor for |
| For the Applicant | Mr O.P. Holdenson, Q.C. and Mr I. Dallas | Arnold Dallas & McPherson |
TADGELL, J. A.:
I am grateful to have read in draft the reasons prepared by Ormiston, J.A. in this case, which state the issues with particularity. With respect, I agree with much of what his Honour has said but I am unable to share his conclusion.
The applicant admitted, pursuant to s.149A of the Evidence Act 1958, that the two deaths in question occurred as a result of his driving of the vehicle. I am well satisfied that the jury were entitled to conclude beyond reasonable doubt that the applicant approached the roundabout in the semi-trailer, and attempted to negotiate it, at a speed that was in the circumstances grossly unreasonable. They were also, in my opinion, well entitled to decide beyond reasonable doubt that the applicant's driving of the vehicle at that speed was a substantial operating cause of the accident which claimed the lives of the two children.
The roundabout is on the (or a) principal route from Western Victoria to South Australia; it may be supposed to be routinely traversed daily by myriad vehicles, and practically innumerable heavy vehicles such as the applicant's; and yet the evidence was that in the space of the last preceding twelve years it had been the scene of merely seventeen accidents. The jury could, and I would assume that they probably did, take that evidence to indicate that the roundabout was relatively safe – at all events not dangerous.
There is, in my judgment, nothing to be concluded in the applicant's favour from an absence of evidence that he travelled at any relevant time in excess of the maximum permissible speed. I respectfully dissent from the view, suggested by Ormiston, J.A., that it was a weakness of the Crown case that there was only one witness who was prepared to describe the semi-trailer's speed as "excessive" and that there was no evidence that it had been travelling above the prescribed speed limits. The driving of a vehicle within (or not in excess of) the maximum speed prescribed by law is by no means a necessary indication that the speed or manner of driving are reasonable or that the driving is otherwise non-negligent.
The Crown case could, in my opinion, have been sustained simply by reference to the applicant's driving at an inappropriate speed. Ormiston, J.A. has pointed, however, to the possibility that the jury might have chosen to convict by reference only to the Crown case based on an allegation of the applicant's fatigue, a basis which his Honour considers to be unsustainable beyond reasonable doubt. With respect, I do not agree that such a case was unsustainable on the evidence.
The jury were, in my opinion, entitled to be satisfied beyond reasonable doubt that the applicant was at the time of the accident extremely fatigued; and that the fatigue was such that he should have been aware that, in continuing to drive as he did, he was at risk of losing control of the vehicle at the intersection; that the risk of losing control of such a vehicle at that intersection – on an approach to a built-up area – was plainly fraught with very serious danger to human life; and that to drive in those circumstances was to depart to a gross degree from the standard of care that a reasonable driver should observe.
Ormiston, J.A. has expressed the view that, apart from the evidence of the psychologists, Feyer and Dawson, there was little evidence of the applicant's fatigue save that which could be inferred from the evidence relating to his actual driving.
There was, of course, no direct evidence that the applicant was severely fatigued. Indeed, in the absence of evidence of medical or other physical examination or observation of him at the relevant time, or his own admission, it is difficult to envisage that there could be direct evidence of his fatigue. The Crown case based on fatigue was therefore necessarily very largely, if not entirely, circumstantial. It was, however, no worse for that. The judge carefully instructed the jury in the process of reasoning upon which the use of circumstantial evidence depends, including the drawing of inferences; and no exception was or could have been taken to the instruction. Further, the learned judge enumerated for the jury no less than ten matters that were included among those on which the Crown relied to provide a mosaic of fact against which an inference of fatigue might be safely drawn. These were: the failure of the vehicle to negotiate the roundabout safely, the sound condition of the roadway, the clear and fine state of the weather, the non-hazardous nature of the roundabout itself, the combined weight and size of the prime mover, the trailer and the load, the familiarity of the applicant with the driving of the prime mover and trailer, the "short minor swerve" (as the judge called it) of the vehicle observed by the witness Trotter not long before it reached the roundabout, some of the applicant's answers given in his first interview with the police suggesting confusion on his part, the onerous nature of the work schedule completed by the applicant over the month preceding the accident and the driving undertaken by the applicant on the day of the accident and leading up to it. The jury were, of course, entitled to have regard to these matters to the extent that they thought fit. Some might very well have deserved more weight than others. Importantly, however, they were matters which, to the extent that they were to be considered at all, deserved to be considered in association, rather than individually.
The evidence of the applicant's work schedule was very detailed and showed that, over the 30 days of April 1995, the applicant drove the semi-trailer on 21 of them. Of the 24 hours in each of these working days he drove on each of two days (20 and 27 April) for over 20 hours; on one day (12 April) for 19 hours; on one day (4 April) for 18 hours; on each of three days (5, 6 and 7 April) for over 16 hours; on each of seven days (11, 18, 19, 21, 25, 26 and 28 April) for between 14 and 16 hours; and on each of two days (10 and 13 April) for between 13½ and 14 hours. Over the last five working days immediately before the day of the accident (Thursday 25, Wednesday 26, Thursday 27, Friday 28 and Saturday 29 April) the applicant drove for a total of 70 hours, including 20¼ hours (with only 3¾ hours rest) on Thursday 27 April. He ceased work at 7 p.m. on Saturday 29 April and did not work for the rest of that day or on the next, but began work at midnight on Sunday 30 April, driving for 9½ hours (and having three periods of rest amounting to 3¼ hours) on Monday 1 May until the accident occurred at 12.45 p.m. The jury, I should think, were able, without the aid of so-called expert evidence, to form a view of the likely effect of the applicant's recent driving regime on his alertness at the time of the accident. The evidence of the witnesses Feyer and Dawson obviously could not be used as establishing any proposition of fact on which the Crown sought to rely. Their evidence, however, which was not objected to, was relevant, and might well be thought useful, against which to test the conclusion that the Crown advocated in reliance upon the several matters which his Honour set out for the jury's consideration, as I have indicated above.
It is relevant also to remember, when considering the validity of the jury's assessment of the applicant's driving and the matter of causation, that they had the advantage of a view of the material geography. A day was devoted to it, given that the jury had to travel for the purpose from Ballarat to Hamilton and back. It is therefore not lightly to be assumed that this Court can understand and assess, as well as the jury could, the physical descriptions within the evidence which bore on their conclusions.
For these reasons I would dismiss the application.
ORMISTON, J. A.:
The applicant James Francis Rudebeck has sought leave to appeal against his convictions on two counts of culpable driving causing the death of two children at Hamilton on 1 May 1995. The trial commenced in Ballarat in October 1998 and the jury returned the two verdicts of guilty on 16 November of that year. Later that month the learned judge sentenced the applicant to three years' imprisonment on each count to be served concurrently making a total effective sentence of three years and he ordered that two years of that term be suspended. In addition, all the applicant's driver's licences were cancelled and he was disqualified from obtaining a further driver's licence for a period of four years. The applicant sought leave to appeal on the single ground that the verdicts were unsafe and unsatisfactory having regard to the evidence. An application for leave to appeal against the sentences was abandoned shortly before the hearing of this application.
In broad terms the applicant contends that there was no sufficient evidence upon which the jury could safely have come to the conclusion that he had been so grossly negligent in the driving of his semi-trailer as to be guilty of the offences charged. The circumstances out of which these offences arose may in the first place be briefly summarised as follows.
The applicant had been a truck driver for over 20 years. For about six weeks before the events in question he had been driving an articulated vehicle some 55 feet long for a company Bark King Pty. Ltd., carrying woodchips from sawmills near Alexandra to and from various premises in the southeast of South Australia and returning with loads of woodbark to Kilsyth. He started his week at midnight on Sunday 30 April 1995 by taking a trailer-load of woodchips, which had already been loaded by him in Alexandra on Saturday afternoon, from his home at Tooleen to South Australia. He had had an hour and a half's rest at about 3.30 a.m. in Hamilton and then drove to Millicent where he arrived just after a quarter past seven to unload the woodchips at the Kimberly Clark premises there. After three-quarters of an hour's rest he drove at 8.30 a.m. to Comaun where an hour later he loaded his vehicle with woodbark from South Eastern Pine Peelers Pty Ltd. After an hour's rest at Comaun, near Mt. Gambier, he commenced his drive to Kilsyth at 11 a.m. By the time his semi-trailer was loaded it weighed some 43.02 tonnes, including the weight of both prime mover and trailer. It was during his journey from Coleraine to Hamilton that the accident occurred at about 12.45 p.m. that day.
The accident occurred at or near a large roundabout which marks a six-way intersection where the Henty Highway and Coleraine Road crosses the Mount Bainbridge Road, about a kilometre from the centre of Hamilton. The roundabout itself is about 60m. or more in diameter with a large central island (itself close to 40m. in diameter) and room for at least two lanes of traffic to circumnavigate it, although at the time no lanes were marked. The road from Coleraine slopes down towards the roundabout at a relatively steep incline with two lanes leading into and two out from the intersection divided by a well-wooded centre plantation. At the top of the incline the speed limit was 80 k.p.h but about half a kilometre or so from the roundabout there were signs restricting traffic to 60 k.p.h. Shortly before the intersection there were the conventional triangular give-way signs indicating a roundabout. The road was designed to veer left so as to join the roundabout and that change in direction commenced approximately a hundred metres from the outer edge of the roundabout. Beyond the roundabout., on the continuation of Coleraine Road, were at that time a group of shops, a telephone box and a post box, the first of these structures being little more than 30m. from the roundabout itself.
On the day in question the applicant was driving the articulated vehicle apparently within the prescribed speed limits as it descended the incline towards the intersection and roundabout. One observer noted that, at a point about a kilometre from the roundabout, the vehicle swerved hard to its left while it was travelling at about 80 k.p.h. along the right hand of the two lanes. It was only a momentary swerve such that did not take the vehicle into the left lane and it was immediately corrected. It seems that there was no other traffic nearby which might have been directly or indirectly affected by its movements.
Such observations of the applicant and his vehicle as thereafter occurred before they reached the intersection suggested that the semi-trailer was being driven at or within the 60 k.p.h. limit along the Coleraine Road as it approached the roundabout. It is less clear at what speed the applicant took his vehicle into the necessary veer to the left and into the intersection, although the only reliable evidence suggests that it was not greatly in excess of the speed limit. However, whatever be the precise speed at which the semi-trailer moved, either it came into the intersection faster than it could safely be driven or the applicant as driver momentarily lost concentration to the extent that the semi-trailer failed to move around the intersection in the required and conventional manner. Instead, notwithstanding the amount of available road surface, it seems to have travelled virtually straight ahead into the roundabout so that the driver's side wheels of the trailer mounted the kerb of the centre island, cutting into the grass on that island, which immediately threw the heavily loaded trailer off balance. That movement, together with the forward momentum of the semi-trailer, pulled both prime mover and trailer hard to the left towards the footpath on the outer edge of the roundabout near to the entry, from the north-east, of the Mount Bainbridge Road, taking the semi-trailer so far off course as to prevent it from travelling straight ahead down the Coleraine Road into Hamilton. Although it seems that the prime mover was still substantially upright, the high load on the trailer did not right itself and went further over to about a 45° angle. Indeed the load was leaning so far over that it hit an electricity pole at a point a metre or so off the road surface towards the same footpath, cracking the base of the wooden pole and causing the suspended lamp to sag into the roundabout. Immediately thereafter the near side wheels of the trailer mounted the left hand kerb for a short distance before the road surface widened near the shops. The trailer continued to fall further to the left but the momentum of the vehicle carried it along another 30 or 40m. while at the same time its load of woodbark cascaded from the top of the trailer along the footpath and the side of the road for the same distance. In the end the trailer came to rest flat on its left-hand side with its front opposite the shops and the phone - and letterboxes in Coleraine Road.
Several cars were pushed out of the way by the violence of the impact but the real disaster followed from the fact that at first the prime mover had not been so severely affected as the trailer so that it had for much of the time remained largely upright. Unfortunately, the stress of the trailer's falling and coming to rest on its side eventually pulled the prime mover right over where it fell right on top of a Sigma station wagon owned by the mother of the two children which she had left parked outside one of the shops. The violent downward movement of the prime mover crushed the cabin and killed the two children aged respectively four and two years who had been left in the car. Two other cars were also seriously damaged and were flung by the impact in various directions across the roadway.
What precisely caused the applicant's semi-trailer to career out of control in this way was, of course, the essential issue at the trial. Direct observations of the vehicle as it went through the roundabout were limited, the only witnesses purporting to describe that being imprecise in their recollection of detail and in one case being treated by counsel and judge as so unreliable as to lead the judge in his charge, in which otherwise his Honour strove consistently to avoid any contentious comment, to say that the criticisms of that witness's evidence were accurate so that he chose to give only the barest summary of his evidence. Apart from the applicant's own uninformative answers in the course of his first record of interview, the only reliable evidence was that of the course taken by the semi-trailer and that of the damage which it had wrought. For the present I mention only one other objective fact or group of facts. The semi-trailer's movements left behind a series of scuff, scrape and possibly gouge marks in the road surface extending directly from some six metres into that part of Coleraine Road from which the semi-trailer came, in a straight line across to and onto the edge of the centre island, thence to the eastern side of the roundabout and thereafter intermittently to the point where it came to rest outside the shops. The first scuff marks were not striking and seemed to come from the driver's side wheels of either the prime mover or more likely the trailer but they then increased in depth and severity as they approached the central island and eventually extended for some 28.8m. Thereafter the marks appeared to come from the left-hand side wheels, again more likely those of the trailer starting with obvious tyre marks and then deepening into score marks moving only slightly to the right, such as might suggest that the driver was desperately trying to bring the vehicle under control and into Coleraine Road. So far as the expert evidence went it seemed unlikely that any of these marks were directly caused by braking, the opinion being expressed that the scuff marks, at least, were caused by the tyres while under rotation sliding sideways and resulting from the steering wheel being turned to the left when travelling at some speed, in contrast to skid marks which are left by tyres under heavy braking, of which there was no indication from these markings themselves.
As to these matters the applicant recalled relatively little in the course of his record of interview asserting that he had been travelling within the speed limits. When approaching the roundabout he said that he had put his foot on the brake but had felt the angle he had come into the roundabout was a "bit tight". He said he turned to the left but the trailer had still hit the roundabout, meaning the island, and then it had tipped over onto its left-hand side. He could not recall what had happened when he braked, other than that he went over, for he could not recall the braking system locking or anything like skidding. When he hit the island, that had tipped the trailer and, after it had gone over, the prime mover had fallen with the trailer as previously described. He thought he had turned left with the trailer (although the skid marks would suggest the contrary) but that he had put himself "in a bad position". He had then tried to pull to the right to bring his vehicle around but the cabin had just flipped over to the left.
What I have just set out is as objective a summary of the facts as can be put together from the evidence given at the trial. For its part the jury, who found the applicant guilty on the two counts of culpable driving causing death, had to distil these relatively simple events from the evidence of about 26 witnesses, together with a series of photographs of the scene of the accident, two plans, two tape recordings of the records of interview, two summaries of the applicant's driving over the preceding month and the benefit of a view of the scene which the judge warned them, in accordance with current practice, could not be used as independent evidence but was merely a means of assisting them to follow and understand the evidence better.
The case which the prosecution sought to make on this material was based on two contentions as to the manner in which the applicant drove the semi-trailer on the day in question which either separately or together might support a conclusion that he had unjustifiably and to a gross degree failed to observe the standard of care which a reasonable man would observe in all the circumstances of the case. In the first place it was alleged that shortly before and at the time of entering the intersection the applicant was driving his semi-trailer when he was aware or should have been aware that he was so fatigued as to be at significant risk of losing control of that vehicle. Secondly, it was alleged that the applicant drove the semi-trailer into the intersection at a speed which was excessive in all the circumstances such that it could be said to amount to a failure to a gross degree to observe the standard of a reasonable person. To assess the case so advanced and the applicant's response to it (whereby he gave no evidence nor called any other witnesses) the jury had the benefit of what must be described as an exemplary charge by the learned judge which has led to there being no ground of appeal taken as to the charge or indeed as to any of his rulings on evidence during the trial, the only ground being that the verdicts were unsafe and unsatisfactory. Doubtless his Honour had regard to the precepts laid down over many years as to the correct method of charging a jury, as recently emphasised by Winneke, P. in R. v. Franks(No. 1) [1998] VSCA 100 at para.17.
I have mentioned the exemplary nature of his Honour's summing up to the jury not merely because it might be seen as providing a model of the kind of charge which juries should receive but because in the present case it might be said to give greater confidence that the jury have had all that might fairly be said on the relevant issues placed before them in an impartial and comprehensive way. This is the more important where, as in the present case, the issue which the jury had to decide was whether there was a failure to observe a standard of behaviour to the extent that that failure might be characterised as gross negligence in the driving of a vehicle, an issue which ought best to be resolved by the opinion of a jury properly instructed. I mention only the following aspects of the charge which made it seemingly so helpful in the present case. The learned judge went to some trouble to set out, in a number of ways which appeared to keep the issues simple, the elements of the charge of which the jury had to be satisfied beyond reasonable doubt, identifying clearly the two ways in which the Crown put its case. However, in doing so he described in brief terms the contrasting submissions of both Crown and defence counsel as to those elements which were in contention in relation to each basis of the Crown case. Moreover, in dealing with those contentions he usefully referred to those witnesses upon whom each side relied and, where necessary, those aspects of those witnesses' evidence so relied upon. Then, when summarising each witness's evidence he helpfully noticed which party in particular was relying on that evidence and to what extent. There was no further summary of the arguments of counsel but that was unnecessary having regard to the careful way in which he had already related their arguments to the elements of the charges and the issues raised by the case advanced by the prosecution.
Although I do not think it necessary to set out in detail all the evidence of each of the witnesses called, or indeed the other evidence tendered at the trial, it is perhaps desirable that I should broadly indicate the kinds of evidence adduced from which the Crown sought to build up its case against the applicant. That evidence was criticised, both below and upon appeal, not so much for the untruthfulness or unreliability of the various witnesses (with one specific exception, being the evidence of Dr Rendell), but because it failed, so it was said, to establish beyond reasonable doubt that the applicant was guilty of the gross breach of duty in his driving to an extent sufficient to sustain the convictions. A no case submission was made to the learned trial judge, which he rejected, which in essence is the basis of the applicant's argument before this Court that the convictions were unsafe and unsatisfactory. The argument in this Court of Mr Holdenson, Q.C. was, as usual, carefully constructed and supported with fastidious detail but his argument remained essentially that there was no sufficient evidence to support the convictions and the prosecution had failed to eliminate all other reasonable hypotheses consistent with the applicant's innocence. The argument, therefore, concentrated on what had not been proved by the various witnesses. Compelling as much of that analysis was at first sight, it failed in certain respects, if I may say so, sufficiently to take account of what in fact happened, whether directly observed or not. It must be remembered that the case the Crown seeks to prove on charges of this kind, i.e. as to what constitutes "culpable driving", is proved by establishing the gross negligence of the driver which must, in almost every case, be a circumstantial case. It is the inference to be drawn from the whole of the evidence which is critical, not the inferences to be drawn from the evidence of particular witnesses or even of classes of witness. Nevertheless, some further summary of how the case was presented must be made.
As to the driving and the ultimate collision, or more precisely collisions, there were some ten or eleven witnesses who could speak about the progress of the semi-trailer down Coleraine Road into the roundabout and about the damage which resulted when it ultimately made impact with the three cars outside the shop. As previously mentioned, the accounts of the witnesses who were able to describe the semi-trailer going through the intersection were neither complete nor satisfactory. The learned judge was, however, careful to leave the issue of the reliability of these witnesses, including the much-criticised Dr Rendell, to the jury. Consequently, however compelling are certain criticisms of Dr Rendell's evidence, it was open to the jury to accept some of what he said or to accept what he said qualified by the knowledge of his apparent exaggerations, as counsel for the Crown appeared to put in his final address. This aspect of the evidence only goes to show how difficult it is in a case such as the present for an argument to succeed on the ground of the verdict being unsafe and unsatisfactory, where inferences may be drawn in support of a circumstantial case. That is not because the principles stated over recent years by the High Court do not apply but because the jury are in a peculiarly strong position to assess the reliability of witnesses such as Dr Rendell and, in accordance with their accepted function, to accept parts of what he said at the same time as rejecting other parts as unreliable. Again this is the more so where that evidence described the movement of the vehicle whose course on the day in question is otherwise verifiable by reference to objective facts. However, it would be hard to support the jury's findings solely or principally by reference to the possible acceptance of part of Dr Rendell's evidence.
The evidence as to the applicant's driving into the intersection came also from the witnesses Irving, Hunter, Scott and Trotter. None of these witnesses appeared to have an ideal view of the truck as it entered the intersection and in particular were unable with precision to describe its direction into it and across the island kerb. Mrs Irving had perhaps the best view but it seems she was travelling in the opposite direction and was about to veer and afterwards did veer left from the roundabout into Kenny Street. She did assert that she believed the semi-trailer as it entered the intersection was travelling at a "higher speed than normal" and that it did not slow down. However, in cross-examination she was forced to concede that the truck may not have been travelling more than about 40 to 60 kms. an hour, although persistent cross-examination still left her adamant that the truck "seemed to be going too fast the moment I saw it", which was what drew her attention to it.
Mr Hunter, on the other hand, was following the semi-trailer into Hamilton and was able to see the trailer's right-hand wheels strike the kerb of the centre island. The defence placed reliance on his evidence inasmuch as he did not assert that the semi-trailer was travelling at an excessive speed and that, because he said that the trailer was top-heavy, that fact should be treated as evidence of the unroadworthy nature of the trailer, a conclusion which does not necessarily follow. As to its entry into the intersection his evidence was a little confusing in that he said that the truck appeared to veer to its left and then it came round to a point where the wheels hit the island’s kerb. That veering might seem inconsistent with the pattern of tyre marks on the road surface which pointed to an almost directly straight course followed by the truck towards the edge of the island, but it may merely refer to the layout of the intersection inasmuch as the west entry onto the roundabout from Coleraine Road was designed to require traffic to veer a little to the left.
Mrs Scott also gave evidence of driving in the same direction but, so far as she was concerned, she only observed the semi-trailer in her rear vision mirror. Nevertheless she said that it was travelling at the same speed as she was, which was effectively at the speed limits at the relevant places. As to its entry into the intersection she thought that the trailer had leant one way and then the other before going right over. The defence relied on her evidence inasmuch as she said that the semi-trailer did not appear to be travelling in excess of the speed limit and inasmuch as she disliked the roundabout because it sloped from the north towards its centre.
Finally, as to the applicant’s driving towards and into the intersection, Mr Trotter gave evidence that he had followed the semi-trailer for more than a kilometre, after he had come from a side road from which he had observed it first swerve sharply to its left briefly for no apparent reason and then right itself before it went past him down to the intersection. He likewise said that the truck did not travel in excess of the speed limits but he was not able to observe the semi-trailer as it went into the intersection because of bushes at the side of the road and thus could say nothing about its speed and direction as it went towards the roundabout island. His evidence was relied on by the prosecution to assist its case that the applicant was suffering from fatigue to the extent that it asked the jury to infer that he had momentarily lost concentration when he had swerved little more than a kilometre before the roundabout. The defence relied upon his evidence because he did not say that the semi-trailer's speed was excessive during the time when he was able to keep it under observation. I shall not trouble to deal with Dr Rendell's evidence in which he asserted that the semi-trailer had swerved violently from left to right a number of times and in which he said that it was travelling very rapidly towards the intersection. Cross-examination suggested several inconsistencies in the evidence he gave, which led the learned judge in his charge to treat his evidence as having little probative weight.
There were four witnesses as to the actual scene where the semi-trailer collided with the other cars. The witnesses Worthy, Young, Rowe and Walker gave evidence about or consistent with the violent collision which was more than amply demonstrated by the photographs taken immediately afterwards. Apart from supporting the view that the speed of the applicant and his vehicle was at that stage still faster than might reasonably have been expected, it provided little evidence of the cause of the semi-trailer's travelling out of control. Two other matters may be noted in relation to those witnesses' evidence. One witness, Mr Walker, heard the applicant say: "I lost it when I clipped the kerb." Secondly, it appeared from cross-examination that none of those witnesses noticed any sign of tiredness on the part of the applicant, at least insofar as that could be observed.
Then there was the evidence as to the condition of the road and the marks that could be observed upon it. Mr Greenburger, a works manager with VicRoads, gave evidence that the road was in good condition and the photographs would all support that, there being no dispute but that on the day the weather was fine. However, a civil engineer with the same body, Gary Titheridge, also gave evidence about the roundabout in particular. Normally the camber of the roadway of the roundabout would go from the centre towards the sides but at this particular intersection there was a steep cross-slope from the north across the whole road so that the camber at the relevant point made the road surface slope towards the centre. At the time no lanes were marked but subsequently they have been added, which he thought to be a safer design. Calculations had also been made as to the speeds at which traffic might traverse the "lanes" of the roundabout and they were estimated to be 68 k.p.h. for the outer or left lane and 46 k.p.h. for the inner and what was called the “kerbside lane”, being as I would understand it, the lane which would take vehicles next to the kerb of the centre island of the roundabout. He said the slope was not unusual where the land itself falls steeply. It could not have been constructed in any other way without great expense. In the course of cross-examination evidence was adduced, presumably to show how dangerous the intersection was, to the effect that there had been some seventeen accidents in the course of twelve years up to the time of this collision. In fact only three had been caused by vehicles entering from the same direction as the applicant. For myself one would think the numbers did not prove it was dangerous and were not a large number for a six-way intersection on a major highway.
On this subject there was also the evidence about the marks on the road, to which I have already referred, given by Sgt. Hodge. His evidence was primarily directed to trying to estimate the direction and speed of the applicant's semi-trailer into and through the intersection. So far as one can gather an important aspect of this evidence was the commencement and extent of the scuff marks over some 28m. which he said could only be attributed to an unsuccessful or partially unsuccessful attempt to turn the wheels to the left and which bore at that stage no evidence that they resulted from braking. The scuff marks evidenced pressure upon the right side tyres as they slid sideways and then, after the impact with the island kerb, were made by the left-hand tyres and continued to the other side of the intersection. The scrape marks which were a consequence of direct pressure from the wheel or tyre of the vehicle were only evident at points on the road where the trailer was tipping over. He was also asked, after objection, what speed he estimated the semi-trailer was travelling at as it crossed the intersection. He was not able to do so exactly but he said it must have been travelling in the vicinity of 60 k.p.h. to leave the marks that it did. He had also concluded from the direction that the vehicle took and the nature of the scuff marks that, whatever its speed, it was never likely to make it through the roundabout without hitting the island kerb. In the course of cross-examination it became clear that he was asserting that the vehicle entered the intersection at an excessive speed which was simply too high to enable the applicant to negotiate the roundabout safely. He agreed that the effect of the trailer mounting the island was a contributing factor to the collision but that was not the reason why it hit the island in the first place. He also agreed that the slope to the centre of the roadway of this particular part of the roundabout was greater than usual.
There was then a great deal of evidence about the condition of the semi-trailer, especially the trailer, given by the witnesses Tysoe, Clarke, Cadden, Mathers, Welsh and Leeson. In short, that evidence showed that the condition of the semi-trailer was good and that its brakes were in good working condition. It had appropriate suspension for a vehicle of that kind which was not significantly affected by the impact of the collision. That suspension had a number of components including what were called "airbags", about which the applicant expressed some doubts in the course of his interview saying that they rocked and rolled and took some getting used to. To this there was one important exception upon which the applicant has relied both at the trial and before this Court, namely, that in addition to the airbag suspension there had been added a number of aluminium spacers which had been bolted in and which were approximately two inches square. The object, as Mr Welsh conceded, was to enable Bark King to run a larger size tyre on the trailer than was normal which would lead to some savings in expense. Snr Const. Leeson said they have the effect of raising the ground clearance of the trailer by about 50mm. so that in the end the whole trailer was some 3.5m. high. A representative of the manufacturers Hendricksens conceded it was possible that the trailer would turn over more easily because of the addition of the spacers. The experts called on behalf of the prosecution also conceded that the modification to the suspension affected the stability of the trailer but said that they could not afford to carry out the detailed tests which might show to what extent that alteration could have had dangerous consequences. It is not clear whether the applicant's comments about the airbag suspension referred to the suspension as altered by the spacers, but it would be surprising if he had even known of the effect of the spacers and thus had intended to differentiate between the unaltered and altered suspension.
Sergeant Tysoe first gave evidence about his enquires as to the effect of the adding of the spacers, but opinion as to their effect is primarily to be derived from the evidence of Mr Cadden and to a lesser extent Mr Mathers. The latter, a mechanical engineer from Hendricksens Australia Pty Ltd, specialist suspension manufacturers, had examined the trailer after the accident. Having noticed the added spacers which added some 50mm. to the trailer’s height, he concluded that the height control valve linkage was not according to specification but he himself did not express the view that the truck was unroadworthy. The spacers had been added under each of six air springs. He refused to speculate what effect the increase in height would have on the movements of the trailer. An actual certificate of unroadworthiness was later issued by Mr Welsh, the manager for Transport Safety Services for VicRoad, a conclusion based on the alterations to the suspension.
The most detailed evidence on this subject came from Robert Leslie Cadden, another employee of Hendricksens. He confirmed the spacers were contrary to specification and said that they would change the travel of the suspension. However, because the trailer had been partly dismantled, it was hard to say how great the effect would be. He agreed, nevertheless, that without detailed testing, one could not determine the possible effect on suspension and jounce, rebound, the correct height, the centre of mass and its stability. If the centre of mass had been altered, then the vehicle would roll more easily. He could not rule out that the trailer had been rendered unstable and more likely to tip over. Nevertheless the testing was not done and he was unsure how that could have been done, what its cost might have been and whether it would have been done in Australia or in the United States of America.
The defence said, however, that the semi-trailer being driven by the applicant was not in roadworthy condition and was subject to uncertain risks of which the applicant was not aware which might have caused it more easily to tip over after it hit the centre island. In particular it was argued that, whatever the nature of the earlier driving, it was possible that the unstable trailer was the real cause of the deaths of the two children. On the other hand, as noted above, the applicant said that the suspension rocked and rolled and he was unsure whether he had got used to it.
The remaining groups of witnesses, and their evidence, were said to be relevant to the prosecution case that the applicant knew or ought to have known that he was so fatigued that he could not safely drive his vehicle and, thus, on that basis, should have been found guilty on both counts. The basis for these contentions appeared in two schedules prepared and put in evidence relating to the ordinary working time-table of the applicant during the month preceding this accident and on the morning of the accident. Sergeant Tysoe had prepared the two documents and there seems to be no dispute that they were substantially accurate. One schedule was taken primarily from the applicant’s diary which by law he was required to keep, together with information obtained from various places visited by him. The second schedule was not dissimilar but was essentially broken up to show the length of time the applicant spent driving, loading or resting without further detail. For the day in question, 1 May 1995, the details of the applicant’s movements were substantially as set out at the beginning of this judgment: see para.3. Such a pattern of work was not untypical, although that was a day immediately following the weekend when he started from home. It appeared that he had finished work for the preceding week at 7.00 p.m. on Saturday 29 April 1995 and thus was able to take some 29 hours rest before starting at mid-night on the following day. During the preceding week, however, his typical days, commencing on Tuesday, 25 April, involved criss-crossing Victoria with 14.75 hours of driving and 9.25 hours of rest; on Wednesday, 26 April with 14 hours of driving and 10 hours of rest; on Thursday, 27 April with 20.25 hours of driving and only 3.75 hours of rest; and on Friday, 28 April with 15.5 hours driving and 8.5 hours rest. On the Saturday he had driven effectively for only 5½ hours. His work pattern in earlier weeks had not been dissimilar. Most rest was intermittent between bouts of driving and on at least seven days in the month he had had less than eight hours rest, let alone sleep.
It was on the basis of this material that two expert witnesses were called, both psychologists who specialised in the effects of the absence of sleep on work capacity. They both expressed opinions as to the applicant’s lack of sleep and as to the effect that that lack would have on his ability to drive the semi-trailer. The two witnesses had no medical qualifications and it was readily conceded that neither of them had ever seen the applicant, let alone examined him. For some reason which I have not been able fully to comprehend, counsel at the trial (who is not counsel for the applicant on this appeal) did not object generally to evidence of this kind but made only a specific objection to Dr Dawson’s evidence upon the ground that it was founded wholly on certain estimates made as to the applicant’s movements which at that time were said not to be entirely accurate. More limited concern was expressed in relation to Professor Feyer’s evidence but that seems largely to have arisen out of the fact that she had not given evidence at the committal proceedings, so that there was an extensive voir dire which, so far as I would gather, did not lead to any further objection to her evidence. In the course of his charge the learned judge gave conventional directions as to opinion evidence but made clear when dealing with these experts that their opinion essentially went to predictions as to how the applicant would have been affected by fatigue shortly before or at the time of entering the intersection. The premise of both witnesses was an adamant opinion that all individuals require eight hours of sleep at the least and that there are only five percent or less who can function effectively with a lesser amount of sleep, even to the extent of only one hour or so. There was no evidence as to whether the applicant came within the 95 per cent class or the five per cent category, the assumption being that he must have come within the former. There was, of course, vigorous cross-examination as to these opinions and their relevance but no further objection was taken and their admissibility is not a ground of appeal on this application. It is, however, the subject of detailed criticism in order to show the unreliability of that evidence and to support the argument that the verdicts would be unsafe and unsatisfactory to the extent that the jury had relied on this opinion evidence.
In many respects the opinion evidence was critical to the prosecution case insofar as it depended upon the first basis of asserting that the applicant knew or should have known that he was fatigued to the extent of being unable safely to drive the semi-trailer. Apart from the actual details of his driving on the morning and the schedules setting out the history of his driving over the preceding month, there was no evidence to support a conclusion that the applicant was significantly fatigued, other than the driving which led to the collision itself and the brief deviation on the road approximately a kilometre before the intersection observed by Mr Trotter and described above: para.18. Cross-examination of a number of witnesses, especially Sergeants Stanley, Meek and Renton each established that nothing in the later behaviour of the applicant indicated that he was unduly tired. An attempt was made to refer to what were said to be some confused answers to the police in the course of his first interview. Apart from the effect on him of the collision itself, that interview took place, for the most part, seven hours later, close on 20 hours from the time he left home, so that it is hard to see why his answers at that stage should have been seen to be relevant.
It remains only to summarise briefly that opinion evidence. Professor Feyer said that, having examined the movements of the applicant from the details in the two schedules, she believed that, having started work at midnight, he would not have fully recovered from his condition of sleep deprivation at the time of the accident and further that his driving on that morning would have exacerbated that condition. She had reached that conclusion on the basis, formed from her wide research into the subject of sleep deprivation, that 95 per cent of people require eight hours sleep per night and that, if they take less, then the "sleep debt" must be made up later. Working irregular hours might require more than a single night's sleep to restore a person to a normal condition. It was for the latter reason that she thought that the applicant’s long rest break from Saturday evening to midnight on Sunday could not fully redress the situation because he had had three nights of only interrupted rest from which it would have required some further 24 hours of overnight sleep to recover. Driving is harder at night and so actual driving performance starts to deteriorate noticeably after three to four hours. Three quarters of drivers are aware of this, or so she asserted.
Cross-examination revealed that she had not interviewed or tested the applicant and that she was relying entirely on conclusions she drew from data in surveys and research of that kind. She made an assumption that he would behave along the same lines as the vast majority of other people and thus she would be making a prediction as to his behaviour upon an assumption that he was in fact like the vast majority of other people. She conceded there were some differences and that many people have a good deal less than eight hours of sleep a day. She denied that people could function normally on four to five hours sleep at night. There would be a small percentage of people who could but she could not say whether or not the applicant might have been one of that very small percentage. She conceded that if he were in that small group then that would throw doubt upon the conclusions she had otherwise reached. Asked whether people get into a pattern and acquire an ability to have less or more broken sleep, she thought people who had consistently to work at irregular times or work at night probably had to rely more on some such ability than the rest of the population. As to whether broken periods of sleep might have a restorative effect on the applicant, she said 'no', but she had made no individual allowance for that. Again she conceded that she had no way of knowing what the applicant's individual characteristics were. Although admitting that she was working on the generalities of the situation she thought it only a very remote possibility, although conceivable, that he was not suffering from any fatigue by way of sleep deprivation when the accident occurred. Moreover she considered it possible that he may have considered himself not fatigued and perfectly fit, so that in fact he may not have been aware of how badly affected he had been. On this latter conclusion the applicant has placed particular weight.
Dr Dawson was also a professor of psychology specialising in the same field and expressing very similar views to Professor Feyer. He had also been shown the schedules of the applicant's movements and concluded that it was highly probable that that schedule of work would have produced fatigue at the time of the accident. In his opinion it was one of the most onerous schedules he had ever observed. Looking at the various periods of work and rest relating to the applicant he expressed the view that the rest periods would have been totally inadequate to enable him to recover as, in particular, there were almost no four hour breaks in the period 18 to 22 April 1995. From 18 to 29 April there were only one or two periods in which restorative sleep periods were possible. Consequently his fatigue level would have been extremely high. In consequence, he might have suffered from tunnel vision or the like, an inability to make appropriate or correct responses and his reaction and response times would have been longer or more slowed with an increased likelihood of falling asleep on the job. The 29 hour rest period up to midnight on 30 April was not enough to enable him to recover adequately before commencing a midnight shift.
In cross-examination Dr Dawson conceded that many people in the community do not get eight hours of sleep a day, to which he responded that research evidence was diametrically opposed to the opinion that people who got less sleep performed adequately on that amount of sleep. There was some research which said that people could compress sleep periods down to about six and a half hours but the hours of sleep of the applicant were not likely to produce sufficient sleep to enable recovery. He agreed he knew nothing of the accused and therefore did not know how much sleep he may or may not have required. He conceded that some people are well adapted to sleeping effectively in a period down to six and a half hours but not less than that. He also conceded that if the applicant was within the category of persons who had a lesser requirement of sleep then it was possible that he had recovered by midnight to start work on the following day, that is, 1 May 1995. He said that there was a theoretical possibility that the applicant had recovered sufficiently to be in a perfectly fit state to drive on that morning but he thought that was highly unlikely. Scientific research could not rule out the possibility that the applicant was one of those highly unusual individuals who could get by on less sleep. He agreed that the applicant may have had the perception that, even if he had been affected to some extent by fatigue, nevertheless he may not have considered himself to be fatigued, so that he thought he was in a perfectly fit state to drive a motor vehicle. The latter answer was also heavily relied upon by the applicant both at the trial and on this appeal.
Apart from the evidence of the applicant's answers to police questioning contained in the two records of interview, the first of which is summarised earlier (para.9), no other evidence of significance was called on behalf of the Crown. The second record of interview was devoted almost entirely to questioning the applicant about the journeys he had made in the normal course of his work for Bark King, as well as those made on the day of the accident.
The applicant did not give evidence and called no other witnesses in support of his case. With hindsight, having regard to the arguments to be advanced on his behalf, that may have been an unfortunate course inasmuch as the matters covered in the record of interview did not cover the whole of the ground comprehended by the evidence relied upon by the prosecution at the trial. The jury were properly and clearly instructed as to the burden of proof but nothing could have been said or was said as to his failure to give evidence. It may have been one of those cases where the jury saw that too much had been left unexplained and drew inferences, adverse to the applicant, from the lack of a more detailed version from him as to the precise circumstances of the accident, especially as nothing was said in the charge about that lack of detail other than the clear but necessarily (in this respect) non-specific instruction as to the drawing of inferences in criminal trials.
(i) Were the verdicts unsafe or unsatisfactory?
The only ground taken in the application is that the verdicts were each unsafe or unsatisfactory. Although passing reference was made to Gipp v. The Queen (1998) 194 C.L.R. 106, it was not sought to suggest that a different basis or test for that ground might now be appropriate, as might be inferred from some observations in the separate judgments of the majority in that case. If it were, then that might unjustifiably introduce a distinction between the effect of jury verdicts in State and Commonwealth criminal trials, for in the latter s.80 of the Constitution ensures to both accused and the public that questions of guilt shall be determined by the constitutional tribunal entrusted to resolve that issue, namely the jury: Brown v. The Queen (1986) 160 C.L.R. 171. However, both sides in the present appeal were content to accept the test laid down by Mason, C.J., Deane, Dawson and Toohey, JJ. in M. v. The Queen (1994) 181 C.L.R. 487 at 494, accepted by Gaudron, McHugh and Gummow, JJ. in Jones v. The Queen (1997) 191 C.L.R. 439 at 450-452, that, for present purposes, where the evidence "displays inadequacies" or "otherwise lacks probative force", so as to lead the appeal court to conclude that "even making full allowance for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the Court is bound to ... set aside a verdict based on that evidence". I should add that I did not understand the applicant's case to rely on assertions that the evidence contained relevant discrepancies or was tainted in some other way, bases which are relevant in other circumstances, according to M. v. The Queen and Jones. This, I would venture to suggest, makes it easier in cases such as the present to place less weight on the requirement that this Court should "not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence", having "had the benefit of having seen and heard the witnesses": M. v. The Queen at 493, Jones at 451. The inadequacy of evidence where reasonable hypotheses have not been or could not be rebutted is peculiarly suited to review as a failure to take account of any unrebutted hypothesis of that kind must bespeak error on the part of the jury, if the hypothesis goes to an element of the offence.
Of course, where the issue is whether an accused had so disregarded the standards of an ordinary prudent driver for it to be said that the accused had failed to a gross degree to observe those standards (and which failure had been a substantial and operative cause of the deaths of two children), then it would normally be entirely desirable that any finding about satisfaction as to those standards should rest with a jury. In the ordinary course of events no body of persons could be better suited to making such a decision which will in nine cases out of ten be a matter of drawing inferences from evidence relied on by way of a circumstantial case.
That very aspect of this application, and the need for the jury's decisions on such issues to be respected, has caused me to hesitate for a considerable time as to whether this Court should intervene to overturn verdicts of that kind in the present case. Undoubtedly, if the jury have had regard to all the available evidence, then it would not be for this Court to second-guess a jury as to an issue so especially suited to resolution by them as the present. The difficulty in contemplating the overturning of such verdicts has been the harder in the present case because there could be little doubt (and it was not seriously suggested to the contrary in argument) that the applicant had driven his semi-trailer negligently into the intersection and would thus, according to the standards laid down for civil actions, be liable for the injuries and damage caused. But that is not the issue presently to be resolved.
However, the applicant's case on this application is only secondarily directed to that ultimate issue. Rather, as I would understand it, what he complains about is the Crown's failure to exclude certain hypotheses or possibilities, three in particular, consistent with his innocence which were said to have remained open on the prosecution case. In the first place, as to the basis of the prosecution case which alleged that the applicant was either aware or should have been aware that he was fatigued so as to be at significant risk of losing control of his vehicle, it is said that not merely was there no evidence that the applicant was in fact tired or fatigued to the relevant extent at or immediately before the accident, but that there was no evidence that he came within the class of persons requiring at least eight hours discontinuous sleep a day, described by the two expert witnesses, or, in particular, that he knew or must have known that he was incapable of safely driving the semi-trailer at the time and in the circumstances described. In other words, there was no sufficient evidence that he was over-tired to the extent that it caused or contributed to his erratic driving on that day and the death of the two children, for he may well have come within the five per cent approximately of the population who are not or who are not significantly affected by lack of sleep or by the erratic sleep patterns to which the applicant chose to subject himself. If he were in that remaining group, which could neither be proved nor disproved, that would mean that such possibility or hypothesis, not unreasonable or fanciful in the circumstances, had not been excluded to the extent required by the criminal law. Further, the jury could not have been satisfied to the necessary extent that the applicant was aware or ought to have been aware that he was fatigued to the extent required to support a charge of this kind.
Secondly, as to the basis of guilt propounded by the Crown that the applicant drove at so fast a speed as to be incapable of adequately controlling his vehicle, with the same consequences, there were said to be two hypotheses consistent with innocence which the Crown had failed to rebut. The first was that the dangerous nature of the roundabout, in that it sloped from the outer kerb to the centre, was the substantial and operative cause of the accident by forcing the semi-trailer towards the centre so as to hit the kerb of the island. That possibility, so it was said, had not been excluded by the Crown. In the second place, it was said that the condition of the trailer's suspension caused by the insertion of the spacers likewise (or in combination with the slope of the road surface) was another reasonable hypothesis consistent with innocence, in the sense that the higher suspension and setting of the body of the trailer may have caused it to tip over further and faster than the applicant could reasonably have anticipated. That possible factor may have been the substantial and operative cause of the deaths which the prosecution failed to rebut, even if that factor in the first place had no bearing on whether the driving was grossly negligent up to the point of impact with the kerb of the centre island.
Could the jury have reasonably excluded each of these possibilities, or were they each in themselves (or in combination) matters best left to the jury to consider, subject to proper instruction by the trial judge whose directions are not here criticised? In the present case it may be easier to conclude that the jury's verdicts were unsafe or unsatisfactory, for if a possible hypothesis is sufficiently telling or obvious, then there must be exceptional strength in the rest of the Crown case for the jury to be able to disregard clear possibilities not disposed of by the prosecution. Only if the jury were clearly instructed as to how it might hold, and did hold, that the asserted hypothesis was not in truth a real possibility, either because the facts did not support that hypothesis or because it could fairly be held that there was no such reasonable possibility, could an "hypothesis consistent with innocence" be ignored in the sense that, though it appears not to have been rebutted, the Crown might nevertheless have made out its case to the jury to the necessary extent.
For reasons which will become apparent, I shall deal first with the applicant's contentions as to the hypotheses which were said not to have been rebutted by the Crown in relation to the basis of its case which asserted that the applicant had caused the deaths by driving at an excessive speed.
(ii) Crown case based on excessive speed
First one must consider the basis for holding the applicant guilty whereby the Crown asserted that he was driving at an excessive speed, such as to show a failure to a gross degree to observe the standard of care of a reasonable driver. Here the applicant pointed to two factors which showed that hypotheses consistent with innocence must have been wrongly excluded by the jury. In other words, according to his counsel, there were reasonable hypotheses consistent with innocence which the jury were bound to exclude before being satisfied beyond reasonable doubt of the applicant's guilt on these two counts.
The two hypotheses were: (i) that the substantial and operative cause of the accident was the unusual nature of the roundabout whereby it sloped in towards the centre from the northern edge instead of having the customary camber towards the outer edge; and (ii) that the substantial and operative cause of the consequent deaths of the two children was the unauthorised and potentially dangerous modifications to the suspension of the trailer which may have caused the trailer to tip further and faster over to the left, so as to pull the whole of the vehicle further to the left as it proceeded out of the roundabout into the cars parked on the left-hand side of Coleraine Road. In terms the argument posited that each of these matters was "the" substantial and operative cause of the collision but the apparent inconsistency derives only from the fact that each may have been the substantial and operative cause and that reasonable possibility must in each case be excluded.
The argument directed to the slope of the roadway on the northern side of the roundabout goes to a critical matter in this case, namely, what in fact caused the semi-trailer both to run into the edge of the centre island of the roundabout and then to career down the left-hand side of Coleraine Road into the cars parked on the side there killing the two children in their mother's Sigma. The answer to that question would most likely provide an answer to the primary issue in this trial, namely whether the applicant was guilty of culpable driving. In particular it would either support or give the lie to the Crown's contention that he was driving at such an excessive speed as would amount to a failure to a gross degree to observe the standards of a reasonable driver. What occurred after the semi-trailer hit the edge of the centre island may also assist in this regard but the consequences of that and the tipping over of the trailer may be seen as going more to the question whether the gross negligence of the applicant, if otherwise established, was a substantial and operative cause of the deaths of each of the deceased.
There were many factors called in aid of the Crown case so that it would be unfair to characterise it as starting with the end result, the tragic death in violent circumstances of the two children and thence working back to a contention that that consequence must have been the result of culpable driving. Nevertheless at times that almost seemed to be the premise on which the prosecution had founded its case. That case certainly had its weaknesses, the most obvious of which was that there was only one witness who was prepared to describe the semi-trailer's speed as "excessive", nor for that matter was there any evidence that it was travelling at above the prescribed speed-limits at any stage, although, of course, the latter is not strictly relevant as to whether the applicant was driving at an excessive speed. For this purpose one may fairly set to one side the erratically-expressed opinions of Dr Rendell.
Nevertheless, although direct observation of the course of the semi-trailer was limited and unsatisfactory, it does not follow that it was not shown to have been driven at an excessive speed of a kind which may have evidenced a gross failure to observe the proper standards of care. In the first place the jury could well be satisfied from the evidence given as to the scuff marks on the road that from a point before it entered the intersection the semi-trailer was not fully under control in that its tyres were being dragged across the surface in a manner which suggested, to some degree at least, a lack of control of the vehicle at that point and thereafter. The evidence of Sgt Hodge might well have been used for this purpose by the jury to conclude that the heavy cornering forces were never fully controlled so that this in itself showed that the semi-trailer was being driven at an excessive speed, whatever be the precise speed in kilometres per hour. To this may be added the force of the final impact (or impacts) of the vehicle. The applicant was not driving a conventional sedan motor car but instead had responsibility for an articulated vehicle, close to 55 feet in length, the combined weight of which was some 43.2 tonnes. To those who were present it might well have seemed a juggernaut out of control. The responsibility of keeping that vehicle within safe bounds lay with the applicant as an experienced professional driver. It was for the driver to keep within a speed which was appropriate for the particular road and the particular vehicle. Although the roundabout was large, it had the characteristics to which I have referred so that, if the driver were unsure as to its nature or condition or as to how it should be negotiated, it was his obligation to slow the vehicle down to such an extent that he had it under control throughout, whatever be the nature of that roundabout, so that the vehicle was not a risk to others travelling on the roadway or who were near at hand.
In the present case the applicant should have been under no uncertain understanding as to the nature of the intersection for he had travelled through it regularly in the proceeding five or six weeks on almost every working day, for that was his regular route for carrying loads of wood bark back to Kilsyth. It had a sharpish left-hand turn at the entry, not uncommon for many roundabouts, the reverse camber and it led out onto a part of the highway which contained a number of suburban shops. Thus to drive the semi-trailer virtually straight through, with apparently no diminution in speed, suggests driving which the jury might well have characterised as involving travel at an excessive speed exhibiting gross negligence to the prohibited extent. If it had been under control up to the point when it hit the centre island kerb, it certainly did not give any appearance of being under control for it travelled on at considerable speed causing not only the two deaths but violent damage to both power pole and two other cars extending for a number of metres down the Coleraine Road towards Hamilton. If one takes the markings on the road as indicating the limited degree to which the applicant chose, or was able, to vary his direction or at least to keep the vehicle under control so that he could change its direction, then I would conclude that it was well open to the jury to believe that at the point it hit the centre kerb he was driving at an excessive speed such as to show a failure to a gross degree to observe the standard of care of a reasonable driver.
Among the possible contributing factors, then, there was what might be said to be an unusual factor about the construction of the roundabout inasmuch as it sloped significantly in towards the centre island. However, I cannot accept that that aspect of the roundabout's design was the substantial and operative cause of the collision for it was for the driver to control his vehicle on the highway and in the circumstances in which he found himself. This was not a freak of nature nor the consequence of a violent change of weather nor even, as might be thought to be the premise upon which this argument is based, some peculiar aspect of the road's design of which the applicant was neither aware nor ought to have been aware. As I have already said it is hard to believe that he was not aware of the nature of the roundabout having regard to the number of times he had taken his semi-trailer through the intersection over the preceding month or so. Truck drivers, in particular, should be aware that road surfaces are infinitely variable. If he was still unaware or uncertain about this roundabout, then that merely indicated that he should have travelled even more slowly than he otherwise ought to have done if he had been fully aware of the reverse slope.
The answer to this part of the argument is, however, that it was for the jury to resolve this issue, for in truth there was no "hypothesis" consistent with innocence so far as this aspect of the case is concerned. The unusual slope could not, on a fair understanding of the evidence, be considered to be "the substantial and operative cause" of the collision, as the applicant contended. It was merely a factor which had to be taken into account and the members of the jury were most fairly and fully instructed as to how and in what circumstances they might draw inferences. It was for them to resolve whether the possibility that the slope was such as to make it impractical for the applicant to drive safely through the roundabout, but in my opinion that could not deny that the speed was excessive, if the jury chose to conclude, as they were entitled to, that the slope was not a critical factor in the collision or was a matter about which the applicant knew or for which he ought to have made allowance. In other words the jury could safely reject the "hypothesis" put forward, however reasonable it may have seemed or now seems divorced from the context of the other circumstances of this case. It cannot be said that the jury would wrongly have reached a conclusion that the excessive speed of the applicant was a substantial and operative cause of the death of the two children, unless the matter to which I next turn should lead to a different conclusion.
The second hypothesis which the applicant said could not have been properly rejected by the jury was that the increased height of the trailer and the alteration to its suspension, each caused by the insertion of the six spacers, were such as to make that change in the construction of the vehicle the substantial and operative cause of the accident, or at least such a hypothesis was both reasonable and not rebutted on the evidence. The failure to rebut the evidence in this case was more specific inasmuch as the applicant asserted that those responsible for the preparation of the prosecution case ought to have arranged for tests to be conducted on the trailer so as to show whether or not and to what extent its manoeuvrability was affected by the spacers, so that the failure to conduct such tests left open this hypothesis which could not have been rebutted in the absence of that further evidence.
As the issue raised by this hypothesis again related to verdicts by the jury possibly founded upon the basis that the applicant's driving was at such excessive speed as to be regarded as a failure to a gross degree to observe the relevant standard, I have had great difficulty in resolving whether this question also remained a matter for the jury to determine, as it was entitled to determine the question relating to the unusual slope, in the light of the whole of the evidence of the case. Inasmuch as the failure to rebut the hypothesis is said to make the case based on excessive speed one which the jury could not have reasonably accepted, I would not agree that a failure to rebut the stated hypothesis necessarily denied a conclusion that the applicant's driving was at an excessive speed; in other words it remained open for the jury to convict on this basis. I would not accept that the failure to rebut required a contrary conclusion by the jury such as to make their verdicts unsafe or unsatisfactory.
However, as I would understand it, there is a second, more limited but nevertheless still important aspect to this argument based upon the failure to rebut what was said to be a reasonable hypothesis consistent with innocence. The argument would, for this purpose only, accept that the evidence relating to the minor collision with the kerb of the centre island was capable of showing that the applicant was driving at an excessive speed to a gross degree. What, however, must also be established, as was made clear in the learned judge's instructions to the jury, was that the conduct of the applicant in driving his semi-trailer in the circumstances was a substantial and operative cause of the death of each of the deceased. This aspect of causation, however, raises a different issue from that of excessive speed, or so it may have seemed in the present case. Assuming for the present that the applicant had driven at an excessive speed into the intersection and had hit the roundabout in the manner described for reasons quite unconnected with the condition of the trailer and its load, and there is nothing to suggest that the latter had any bearing on the course taken by the semi-trailer up to the time it hit the island, nevertheless what happened thereafter may be seen to a significant degree to have been affected by the manner in which the trailer reacted to what in other circumstances might have been a relatively slight jolt. It may be said to be a not uncommon experience to see drivers of trucks and other heavy vehicles run over corners of roundabouts on somewhat tighter roadways without their apparently suffering any ill effects or great disturbance. In the present case the semi-trailer hit what was a relatively low island roundabout and yet shortly thereafter the trailer was at almost 45° before pulling the whole vehicle across to hit both power pole and the unsuspecting cars parked at the side of Coleraine Road. That may have resulted from the speed at which the driver entered the intersection and struck the roundabout, but it was argued that the speed was not greatly above 60 k.p.h. (at worst) so that, although excessive, it ought not to have led to the tragic consequences which in fact occurred.
In the present case it would not matter whether the collision with the island kerb may or may not have been caused by excessive speed, unless the jury could have been properly satisfied beyond reasonable doubt that the excessive speed also led to the death of the two children in the sense that the applicant's driving was a substantial and operative cause of their deaths. The additional factor here, however, is that the movement of the trailer might seem to be excessive and one which, according to this contention of the applicant, might well have been explained only by the condition of the trailer and its altered suspension. In short, because it was not so explained, there was said to be a reasonable hypothesis that the trailer was in a dangerous condition unknown to the applicant, which had not and could not have been rebutted unless evidence of testing had been carried out and adduced before the jury.
It was possible that the altered nature of the suspension of the trailer being driven by the applicant had been altered to such an extent as to make it tip over further and more violently than might otherwise have been expected. The fact that it was leaning over in the manner described may well have forced the vehicle further to the left than the applicant wished to go so, leading to the semi-trailer's striking of the power pole and its continued journey down the parking areas on the left-hand side of the road opposite the shops causing the deaths and collisions in question. If the trailer had not been affected, upon this hypothesis, by its altered suspension, then the whole vehicle may, although affected by the impact of the collision to the kerb, have simply travelled down the highway in the correct laneway and without causing danger or damage to anybody or anything. The question thus said to be left unanswered is whether the alteration to the suspension sufficiently altered the direction of the vehicle, or the capacity of the applicant to control the direction of the vehicle, so that the operative and substantial cause of the death of the deceased may have been that alteration the effect of which was unexplained.
At first I was inclined to the view that, because the unknown alteration to the suspension of the trailer could have been the substantial and operative cause of the deaths of the two children, that meant that the Crown had failed to rebut a hypothesis consistent with innocence. Such a conclusion, however, would place too precise a significance on identifying a specific act as being the cause of the collisions and deaths. It has been accepted, and it is not disputed here, that it is sufficient that the relevant acts which amount to culpable driving must be shown to be a substantial and operative cause of the victim's death, though it has also been accepted that that death need not flow solely from the accused's acts. Although the expression is customarily used, there seems no significant difference in effect from the expression "contribute significantly to the death", also commonly used in describing the necessary causal element in proof of murder or manslaughter: see, generally, Royall v. The Queen (1990) 172 C.L.R. 378 and Osland v. The Queen (1998) 73 A.L.J.R. 173, noting the doubt expressed in each case by McHugh, J.
In the present case the need for the jury to understand that they should not draw inferences where the required inference of guilt is not the only reasonable inference to be drawn from the facts was mentioned at least twice by the learned judge to the jury. On this view the jury may well have reached the conclusion that the insertion of spacers in the trailer's suspension may have contributed significantly to the death of the two children inasmuch as they may have concluded that without that defect the semi-trailer would not have been carried so far across the road as to collide with the light pole and the parked cars. There was, however, another factor which the jury were equally entitled to take into account and that was the driving of the applicant, if they had indeed found that he was driving at an excessive speed. They may well also have concluded that the applicant's driving was so grossly negligent as to make it the primary, or at least one of the significant, operative and substantial causes of the children's death. They may well have properly concluded that the fact that the spacers took the semi-trailer further off its course than otherwise might have been the case could not detract from a conclusion that the applicant's driving contributed significantly to the death of those children so as to make him criminally responsible for their tragic deaths. They could have reasoned, properly in my opinion, that a critical element in the events leading to the collision was the applicant's grossly negligent handling of an enormous and unwieldy vehicle which, if not controlled with proper care, was capable of wreaking havoc. If they came to such a conclusion as to the excessive speed of the applicant's driving, then there would seem no reason why they should not conclude properly that that driving was a substantial and operative cause of the children's death, notwithstanding the significance of the other matter raised as to the suspension. At all events, these were matters for the jury and they were entitled to reach their conclusion as to the cause of the deaths, if they were satisfied that he had driven the vehicle at such an excessive speed as to amount to a failure to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case. This aspect of the applicant's case is therefore not made out.
The difficulty, however, is that the Crown did not rest its case solely on excessive speed but also raised as a basis for finding the applicant guilty that he was fatigued at the relevant time and knew he was fatigued so as to be at significant risk of losing control of the semi-trailer. Although the Crown sought to rely on both heads of liability, it also sought verdicts of guilt solely on the basis of fatigue and it is to that basis of liability to which it is necessary to turn.
(iii) Crown case based on fatigue
On this basis of the Crown case the applicant attacked the verdicts by asserting that the jury could not safely have found that he was fatigued to the extent necessary to justify the conclusion that he was reckless in disregarding the risks of driving on the day in question, in particular the risk of losing control of the semi-trailer. Moreover they could not have found that he was, or ought to have been, aware that he was fatigued to the proscribed extent. In other words, counsel for the applicant contended that they could not have excluded the possibility that he was not so fatigued and certainly not the possibilities that he was neither aware nor ought to have been aware that he was fatigued to the requisite extent.
If for the present one ignores the opinion evidence of the two psychologists, then there was remarkably little evidence of any description that the applicant was tired to any extent, unless the jury could safely have drawn that inference from the evidence relating to his actual driving. As to the latter possibility it would have to be shown that the jury could have inferred on a circumstantial basis not merely that he was tired so as to be at significant risk of losing control of the semi-trailer but also that he was aware or ought in the circumstances to have been aware that he was fatigued to that extent.
There was for this purpose no direct evidence that the applicant was tired, nor any admission by him to this effect. Nobody observed him dozing at the wheel, although several witnesses saw him as he drove down the highway. After he had emerged from the crash and subsequently, in circumstances where it was likely, for many reasons, that he might have shown signs of fatigue, there was not a single witness who gave evidence to that effect; indeed several said that he appeared normal to them. This included not only members of the public, who may well be thought to have been so shocked as not likely to be able to observe matters of this kind, but also two sergeants of police who might each have been expected to make accurate observations, as well as a third sergeant and another officer conducting the first interview, who made no such observation of fatigue even though the applicant had been interviewed by them for some time after 7.15 p.m. on 1 May 1995, 19 hours and more after he began driving and in circumstances which might well have caused him strain. It was suggested that his answers in the interviews were at times vague or confused, but, having regard to the answers in his interviews and having listened to both tapes, one made many months later, I can discern no basis upon which it might have been inferred from that material that he was tired.
As to this evidence the learned judge observed, correctly in my opinion, that it provided no indication of any sign of fatigue on the part of the applicant. It follows that the basis of this head of the prosecution case was entirely circumstantial, depending on the drawing of inferences in order for the jury to reach any conclusion of guilt to the requisite standard. For this purpose, assuming that the prosecution case based on fatigue is a separate head of liability, then that element of fatigue, and a finding that he knew or ought to have known of fatigue, to the required extent, being critical to a finding of culpable driving, had to be proved beyond reasonable doubt. Moreover, the evidence of the earlier swerve was merely evidence capable of giving rise to an inference but, unless more were known of that momentary deviation, it was not here the kind of evidence which safely permitted an inference of fatigue to the relevant extent. There was but a momentary observation by a driver waiting to enter from a side road. The deviation was minor, not sufficient to take any part of the vehicle into the left lane. It seemed to have no cause and no consequence. The evidence was not the subject of any questions during the interview. Whatever be the applicant's error of judgement, was it such as could here lead to an inference of fatigue, according to the accepted standards of satisfaction? In my opinion there were other reasonable explanations consistent with the applicant's innocence such as the need to avoid something on the road or a change of mind as to which lane he might wish to travel in; these are but two possible alternative hypotheses which the Crown chose not to exclude. Any lack of explanation on the part of the applicant arose from the failure of the police to question him about it, unless his failure to go into the witness box were to be held against him, as in these circumstances it could not.
On the general issue of fatigue, there was, of course, the evidence of the applicant's driving. That may have led to an inference of negligence sufficient to satisfy the test of gross negligence based on excessive speed, as has already been described. It may also be consistent with tiredness, but more is required to establish actual fatigue sufficient to support a charge of culpable driving.
There remains the evidence of the applicant's movements both on the morning in question and over the preceding week, together with the psychologists' expert evidence as to the conclusions they would seek to draw from that. There can be no doubt that the driving schedule of the applicant appeared to be heavy and that his opportunities for rest and in particular sleep during the working week were limited. Many would find such a burden, having regard to the concentration required to drive a semi-trailer of the size and weight in question, more than they could cope with. But the question in this case is whether it had that affect on this applicant. He had been a professional driver of trucks and other heavy vehicles for many years and this kind of driving might be thought to be a lifestyle to which he was inured. Of course, from time to time he may have tried to continue beyond his capacity for endurance but was this such an occasion and, more importantly, was he aware or ought he have been aware that this was such an occasion? He had had a day and a half off, what he did or did not do in that time was not clear, but this was the start of his working week and the collision occurred very little over half a day from his recommencing work. He may have been exhausted and he may have felt exhausted by what he had done over the preceding weeks but we do not know whether that was so other than from the fact that he had a collision on the day and in the manner described. That may have been caused by excess of speed or it may have been caused by simple error of judgement by trying to cut a corner, as it were, and to drive straight down Coleraine Road with as little diversion from a straight line as was practicable. In my view each view is open and the alternate hypotheses to that of fatigue are both reasonable and possible, so much so that the jury could not have excluded them without some additional factor.
That additional factor in the present case appears to have been the evidence of the two psychologists. Apart from the unexplained minor swerve a kilometre or so back, there was really no evidence to persuade a jury that the collision was attributable to fatigue unless the psychologist's evidence was given full weight. Assuming that the jury reached its conclusion on this basis of liability (and there is nothing to show that they did not), then they must have accepted what the experts said as inherently likely and such as to exclude all other hypotheses of the kind to which I have referred. Those experts might have been seen as being very persuasive if their conclusions could have been seen by the jury as having comprehended the applicant. But there was no evidence that those conclusions did, only evidence that, if he were within a group of approximately 95 per cent in the community, they did apply to him. There was not even any evidence, apart from statistical likelihood, that he was the kind of person who came within the 95 per cent class so described by them. They were not medical practitioners; unlike some forensic psychologists they did not interview the applicant nor had either of them even met him. Their black and white prescription of what the ordinary citizen might or might not do and how he or she might be affected by the described pattern of work did not appear to depend upon those persons having any particular characteristics. Professor Feyer seemed unwilling to concede that anything less than eight hours of sleep was permissible, though Dr Dawson seemed somewhat more willing to accept that some persons could get by on only six and a half hours sleep. Since in both cases the timetable of the applicant seemed to provide less sleep then, according to their statistical models, the applicant must have been tired. Unfortunately these generalities may have been very seductive to the jury, to the extent that this Court cannot know whether they accepted them without qualification. Doubtless in cross-examination it was conceded that what they said was only an "indication" how a person within the 95 per cent of the population might be affected by fatigue, but the jury were not instructed that this was the limit of the experts' opinion.
It seems to me that the expert witnesses' conclusions cannot rationally be used except for statistical purposes. The question in issue on the trial was whether these matters had been proved beyond reasonable doubt. Although that has never depended upon statistical probabilities, the fact that five per cent of the population would fall outside their strict guidelines would not permit a conclusion that this matter was proved beyond reasonable doubt. More importantly, there seems no basis other than guesswork that, even if the applicant did fall within the 95 per cent category, he was so aware of his fatigue that he should be treated as knowing or as having ought to have known that his want of sleep could have consequences of potential risk such that he should be considered guilty of culpable driving. Knowledge of that kind cannot be proved by statistical models. Of course, drivers should know that tiredness may well cause accidents, but the question in the present case was and is whether the prosecution has proved beyond reasonable doubt that this applicant, a driver with the kind of experience which might unfortunately suggest to him that he was capable of overcoming such deficiencies, knew or might reasonably be said to have known that he was fatigued to the required extent and so was grossly negligent in the driving of his semi-trailer on that day. In my opinion the Crown had not rebutted all reasonable hypotheses consistent with innocence as to the allegation that the applicant was so fatigued as to be at significant risk of losing control of his vehicle.
It has been argued that there was material strongly supporting a circumstantial case so that the jury could have concluded that the Crown had made out its case based on fatigue to the necessary extent. The difficulty is that it cannot be known to what extent the jury relied on the expert evidence of the two psychologists. Nor for that matter can it be known whether they saw that evidence as merely a "prediction" (as one expert described it) of what could have happened if the applicant were within the 95 per cent of the population severely affected by lack of sleep. It is true that the judge repeated in his charge much of the cross-examination but he also set out the experts' essential findings given in evidence in chief without expressing any criticism of that and without pointing out its limitations. The difficulties arising out of the use of statistical probabilities were not argued but are generally discussed in Cross on Evidence, paras.9090-9095, and in the authorities there referred to. Although it was not suggested that the evidence was inadmissible, it could only serve properly to support the Crown case when taken in conjunction with other evidence and subject to its limitations or qualifications which were only dragged out of the witnesses in cross-examination. It would be remarkable if proof that particular characteristics are shared by 90 to 95 per cent of the population could serve to establish that an accused also shared those characteristics, though he could be within the 5 to 10 per cent outside the statistical model, unless there were other evidence which demonstrated that he was within the 90 to 95 per cent of the population. Of course, driving erratically or dangerously could not in itself constitute such evidence.
Thus, in my opinion, uncritical use of the expert evidence of the two psychologists might well have resulted in the use of evidence "lacking probative force", if the judge did not say, as he did not say in this case, that it could not be used in itself to establish fatigue. It must be conceded that no exception was taken to the charge on this ground and there was but a limited objection to the evidence of the witnesses, partly it would seem upon the ground that the significance of that evidence would depend upon the evidence overall.
The vice in the present case is that the jury may not have accepted that basis of the Crown case depended on excessive speed and may only have accepted its case based on fatigue by relying on the evidence of either or both of the two expert witnesses. They may not have thought the circumstantial case sufficient and either disregarded it or thought that it did no more than confirm conclusions based on the supposedly expert views as to what the applicant may or may not have been able to do having had regard to his working and sleep patterns. One can never know precisely how a jury reach their conclusions but if, as was possible in this case, they saw the evidence of the experts as being critical to their conclusions, then I would consider the verdicts so arrived at as being unsafe and unsatisfactory. That expert evidence simply did not support a conclusion of guilt, whatever use it might otherwise have been put to, for it is the type of evidence which may have given "verisimilitude to an otherwise bald and unconvincing narrative". It is the kind of evidence which, because of its aura of research and learning, may have falsely persuaded the jury that the witnesses' conclusions could be treated as sufficiently universal as to comprehend the applicant and so justify a finding of guilt. To my way of thinking that is just the evidence which a court of appeal, in considering whether verdicts are unsafe or unsatisfactory, may conclude that it "displays inadequacies" or "otherwise lacks probative force": M. v. The Queen at 494.
So I would conclude that insofar as the verdicts rested on the fatigue basis of the Crown case, they were unsafe or unsatisfactory. This aspect of the applicant's case has been made out.
(iv) Conclusions
The argument of the applicant tended to separate the aspects of fatigue and excessive speed in a way which may not be justified having regard to the totality of the evidence. I would accept that they are both aspects of the applicant's driving which, if the case had been presented differently, together might have led to the conclusion that his driving should be characterised overall as a failure to a gross degree to observe the standard of care which a reasonable driver would have observed in all the circumstances. However, the conclusions I have reached differ as to the two bases of the Crown case so it is necessary to reach a conclusion as to what should occur upon the assumption that only one basis of liability has been properly made out. It would seem that, if one aspect of the Crown case was infected by the possibility that a reasonable hypothesis consistent with innocence had not been rebutted or that otherwise verdicts on that basis were unsafe or unsatisfactory, then it would not ordinarily be possible to say that the jury had not reached its conclusion on the head of liability in question. In the present case, therefore, one cannot be sure that the jury did not find that only the case based on fatigue was made out and, if they did, then I have already expressed the opinion that that conclusion could not be supported. It was clearly a significant part of the Crown case, relied upon separately from its case based on excessive speed, with the consequence that in themselves the verdicts cannot stand. Despite the fact that I have reached the conclusion that the applicant's driving at an excessive speed may have been held properly by the jury to be an operative and substantial cause of the deaths, that cannot derogate from the conclusion that the verdicts were unsafe and unsatisfactory to the necessary degree. It is not possible to know on what basis the jury acted. If it is possible that they upheld a basis for the Crown case which cannot be supported, then the verdicts cannot stand. To many that may seem a regrettable conclusion, but the applicant is entitled to a trial according to law and the prosecution case at all stages had weaknesses which I have identified and which were never effectively corrected.
For these reasons I would grant the application, so that the appeal should be allowed and the verdicts set aside. As that decision rests upon the conclusion that the verdicts were unsafe and unsatisfactory it would not be appropriate that the counts should be remitted for rehearing. I would therefore propose that verdicts of acquittal be entered.
CHERNOV, J.A.:
I have had the benefit of reading the draft reasons for judgment prepared by Ormiston, J.A. I gratefully adopt his Honour’s analysis of the issues and his summary of the evidence relevant to this application. I have also had the benefit of reading the draft of reasons for judgment of Tadgell, J.A.. I agree with his Honour that the application should be dismissed. The Crown case was that -
(a)in driving his semi-trailer into the roundabout the applicant departed to a gross degree from the standard of care of a reasonable driver;
(b)such driving by the applicant was a substantial and operative cause of the death of the children.
In seeking to establish gross negligence on the part of the applicant, the prosecution relied on two contentions which were put cumulatively and in the alternative.
(a)The applicant was so fatigued at the relevant time that there was a real risk that he might lose control of his vehicle and that he knew or ought to have known that he was so fatigued.
(b)The applicant drove his vehicle into the roundabout at a speed which was excessive in all the circumstances such that it could be said to amount to a failure to a gross degree to observe the standard of a reasonable person.
It is not known, of course, which of the above contentions was accepted by the jury in the course of their deliberation which produced the verdicts of guilty. Thus, in order to determine if the verdicts are unsafe and unsatisfactory, it is necessary to consider whether it was open for the jury to be satisfied beyond reasonable doubt as to each of the above matters contended for by the prosecution. If it is concluded, for example, that it was not open for the jury to be satisfied beyond reasonable doubt as to one of the Crown’s contentions, because the jury may have taken a different view on that issue, their verdicts could not be regarded as not being unsafe and unsatisfactory.
In relation to the second of the above Crown contentions, I agree with the other members of the Court that it was open for the jury to be satisfied beyond reasonable doubt that the applicant drove the vehicle into the roundabout at a grossly excessive speed. There was a significant amount of evidence from which they could have drawn such a conclusion, including the following –
(a)The evidence of Mrs. Irving that the vehicle was travelling at a “higher speed than normal” as it entered the roundabout.
(b)The lack of any diminution in the speed of the vehicle as it was driven through the intersection.
(c)The scuff marks left on the road by the semi-trailer and its path once it entered the intersection as described by Ormiston, J.A.
(d)The surrounding circumstances such as the size and weight of the semi-trailer and its load, the clear weather and the sound condition of the roadway.
The absence of evidence that the applicant drove into the roundabout at a speed which was above the prescribed limit would not preclude a finding that the speed was, in all the circumstances, excessive.
Turning now to the question of whether the applicant’s driving of the vehicle at such a speed was a substantial and operative cause of the accident, I agree with the other members of the Court that, for the reasons given by them, it was open for the jury to conclude beyond reasonable doubt, that it was.
This leaves the issue of fatigue, more particularly, whether it was open for the jury to be satisfied beyond reasonable doubt that at or about the time when the applicant drove his semi-trailer into the intersection, he was significantly fatigued and knew or ought to have known that he was so fatigued. In my view, the jury were entitled to be satisfied to the requisite standard as to those matters. Thus, even if the jury had based their verdicts on the conclusion that the applicant was significantly fatigued at the relevant time and that he knew or ought to have known that he was so fatigued, in my view, their verdicts would not be thereby rendered unsafe and unsatisfactory.
If one were to put to one side for the moment the evidence of Feyer and Dawson, there was, in my opinion, sufficient evidence on which the jury could have concluded beyond reasonable doubt that the applicant was fatigued at the relevant time and that he ought to have been aware of his condition. It is true that there was no direct evidence as to his state of tiredness. This is unsurprising given that he was not subjected to a medical or oral examination after the accident for the purpose of establishing his level of fatigue at that point or at all. That he gave no outward indication of tiredness at the time he was interviewed is, in my view, not to the point. The real question is whether he was overcome by tiredness when driving his semi-trailer at the relevant time. It is possible for the applicant to have been fatigued at the time he drove into the intersection yet appear to be alert after being shaken by the tragic accident and moving about in the open air thereafter. In my view, there was considerable circumstantial evidence from which the jury could have concluded beyond reasonable doubt that the applicant was fatigued at the relevant time. For example, the jury had before it a detailed driving schedule of the applicant for the month prior to the accident which showed that he drove for very long hours and had only limited opportunities for rest. I refer in particular to the summary of the relevant entries in that schedule as set out in the judgment of Tadgell, J.A. Similarly, his workload from midnight of 1 May 1995 to 12.45 p.m. of that day indicates his onerous driving schedule and relatively short rest periods. In addition, there was the evidence of Trotter and of the surrounding circumstances such as the sound condition of the road, the applicant’s familiarity with the roundabout and the clear weather. There was also the evidence as to the speed and the manner in which he entered the roundabout as well as the evidence of the scuff marks left by the tyres of the semi-trailer on the roadway, all of which have been summarised by Ormiston, J.A. Furthermore, as Tadgell, J.A. has pointed out in his judgment, the trial judge properly instructed the jury in relation to the use of circumstantial evidence and enumerated for them the material from which they could draw the conclusion that the applicant was fatigued at the relevant time.
If the jury concluded beyond reasonable doubt on the evidence before it (but excluding the opinions of Feyer and Dawson) that the applicant was relevantly fatigued and ought to have known about his condition, then an additional factor that would operate to make their verdicts unlikely to be unsafe and unsatisfactory by reason of such a conclusion, is the applicant’s seemingly unexplained failure to give evidence relating to his state of tiredness and the effect of that on his driving ability. In my view, the applicant’s failure to give evidence on that issue in the circumstances of this case, has made it easier to accept that the jury could have properly drawn an inference from all the evidence that the applicant was fatigued at the relevant time.
Put another way, the jury itself could have more readily come to such a conclusion on this issue given that the only person who could have given evidence about the applicant’s state of tiredness and the effect of that on his driving ability, was the applicant himself, yet he chose not to do so and proffered no explanation for such a course. In Weissensteiner v. The Queen (1993) 178 C.L.R. 217, Mason, C.J., Deane and Dawson, JJ. at 224-8 recognised that, depending on the circumstances of the case, a jury might be entitled to take into account the silence of the accused in determining his or her guilt. After reviewing the authorities relating to this issue, their Honours accepted that if the Crown had established at least a prima facie case for the drawing of a particular inference against the accused and the matter in respect of which the jury was asked to draw the inference was peculiarly within his or her knowledge then, if there was no apparent basis for the accused not giving evidence, his or her silence may permit the inference to be drawn against the accused more readily than would otherwise have been the case. Although the accused’s failure to give evidence would not make up for any lack of it as against him or her, it may make the drawing of an inference of guilt less unsafe than it otherwise might be. Their Honours said this at 227:
“.. it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.”
In R. v. Neilan [1992] 1 V.R. 57, the Appeal Division (Young, C.J., Brooking and Marks, JJ.) spoke at 65-67 of the jury and the Appeal Court being entitled in certain circumstances (such as those that were present in this case) to regard the silence of the accused as permitting a more ready acceptance of the Crown case. Their Honours spoke of the “confirmatory function” of silence in drawing of inferences against the accused and of its place in the testing of the reasonableness of the verdict. They said that silence is given greater weight when it appears that the accused alone is able to explain the facts surrounding the incident. See also R. v. Cenzig [1998] 3 V.R. 720 per Charles, J.A. at 729; the authorities collected by Batt, J. in Wright v. Morton (unreported, 26 June 1996) at 26; Wright v. Morton [1998] 3 V.R. 316 per Charles, J.A. at 338-9.
Thus, the jury here could have properly taken into account in relation to the issue of fatigue, the applicant’s failure to give evidence and consequently felt more comfortable in concluding on the evidence to which I have referred, that he was relevantly fatigued at or about the time he drove his semi-trailer into the intersection and that he ought to have been aware of his condition.
I now turn to the evidence of Feyer and Dawson to see if it somehow made the verdicts unsafe and unsatisfactory, assuming for present purposes, that the verdicts were based on the conclusion that the applicant was fatigued at the relevant time. In my view, for the reasons I will state shortly, the evidence of those experts had limited probative value, but it was nevertheless relevant and it was open for the jury to take it into account on the issue of fatigue without thereby making the verdicts unsafe and unsatisfactory.
In my opinion, it must have been apparent to the jury from the whole of the evidence of the experts and the judge’s charge that, as was the fact, neither Feyer nor Dawson was in a position to give evidence about the applicant’s state of fatigue at the time of the accident. First, the substance of their evidence-in-chief was that a person who performed the work summarised in the schedule compiled by Sergeant Tysoe would have been chronically or at least significantly fatigued at or about the time of the accident. Save for one passage in the evidence of Feyer, in their evidence-in-chief, the experts did not speak specifically of the applicant although it must have been apparent that the person or persons to whom they referred would have included the applicant. But in their cross-examination, it was quite clear that their opinion was that only approximately 95 per cent of persons who performed the onerous work set out in the schedule were likely to have been fatigued at the relevant time. No evidence, however, was led by the prosecution that the applicant fell within that group and Feyer and Dawson readily conceded that they had not examined him and did not know if he was part of the 95 per cent. On the contrary, they admitted that the applicant may have been part of a small percentage of the population that could cope with significantly less sleep than was required by the remainder of the population. Next, as his Honour reminded the jury, Feyer agreed in cross-examination that all she could go on were the “generalities of the situation” and that she could not quantify the extent of the applicant’s fatigue or how he may have been affected by it. As to Dawson, as his Honour reminded the jury, he accepted in cross-examination that there was a variance amongst individuals as to how much sleep they required in order to function normally and, as I have mentioned earlier, he agreed that he knew nothing of the applicant’s physical and mental make-up. Furthermore, both experts conceded in cross-examination that they could not rule out the possibility that the applicant was not fatigued at the relevant time.
In his charge, his Honour clearly highlighted to the jury all the matters referred to earlier, thereby reminding them of the limit of the experts’ evidence. Their evidence, although arguably of low probative value, was relevant and may well have been helpful in the sense of setting the context in which the jury could determine the extent to which the applicant was fatigued at the relevant time. If the jury did take it into account in determining the issue of fatigue, I would not, in the circumstances, regard that as making their verdicts unsafe and unsatisfactory. Thus, in my view it was open for the jury to be satisfied beyond reasonable doubt on the whole of the evidence, including that of Feyer and Dawson, on the issue of fatigue.
For the above reasons, I am of the view that the verdicts in this case are not unsafe and unsatisfactory and accordingly, would dismiss the application.
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