R v Sellen No. Sccrm-98-58 Judgment No. S6787

R v SELLEN
[1998] SASC 6787

Court of Criminal Appeal
Coram: Millhouse, Perry & Nyland JJ

Millhouse J

The question is, "Why did he drive like that?"
They were both driving on a straight stretch of bitumen road. The appellant was driving his ute. Sitting next to him was his friend, Hayden Richards. Richards saw Adam Wilson's Toyota Hi Lux approaching. Two seconds later, the appellant veered on to his incorrect side. The appellant, in a 110kph zone, was doing about 90 kph. It was about midday. They were going back to Port Lincoln from Sleaford Bay where he had been surfing for three hours or so. He had had eight hours sleep: he had taken no alcohol.
Adam Wilson moved to the right to avoid an obviously dangerous situation, the appellant followed suit, moving back towards his correct side. The vehicles collided. What happened may be likened to a couple of pedestrians approaching each other, dodging from side to side, each trying to get out of the way of the other.
A girl in the Hi Lux was badly injured, another lad in the Hi Lux and Hayden Richards were injured but not so seriously. Hence the three counts, one of causing grievous bodily harm by dangerous driving and two of causing bodily harm by dangerous driving.
The Crown alleged that the appellant deliberately drove in the way in which he did, in effect he was playing "chicken" with Adam Wilson. The defence denied this. The only explanation the appellant could give was that he had dropped off to sleep. Mr David Edwardson also ran the defence of a momentary lapse of attention.
The jury convicted the appellant on all three counts.
The grounds of appeal were that the learned trial judge failed properly and correctly to put the defence case, that he failed correctly to instruct on circumstantial evidence and that the verdicts were unsafe and unsatisfactory.
Mr Andrew Martin, for the appellant on appeal, argued that the learned judge had not properly put the defence in that he had ignored the alternative defence of a momentary lapse.
A reading of the summing up does not bear that out. Certainly the learned judge emphasised the defence of going to sleep but that simply mirrored counsel's address to the jury. Indeed I should think the jury may have been a bit puzzled by counsel's address. This is what Mr Edwardson said on the topic:-
" In this case you have had the advantage of hearing the evidence of my client, particularly on this topic. I might say he quite candidly admitted to you that the only thing he could put this accident down to is that he dozed off at the wheel for a brief period. He can quite easily have come along to this court and said 'Yes, I accept I went onto the incorrect side of the road. There was a momentary lapse of concentration. I was thinking about the music, looking at the surroundings, or talking to my mate. When I looked back the car was in front of me. It was a genuine mistake. This is how the accident happened.' He does not say that. It would have been a very simple matter for him to say that and very difficult indeed for the prosecution to refute.
What he does instead is say quite candidly 'The only explanation I can give is that I must have fallen asleep momentarily. I remember jumping in my seat. The car was in front of me. I saw the bullbar and the headlights, and there was nothing I could do. That is much of what I can tell you about the accident, but I deny any deliberate act on my part.' "
Obviously the main line of defence was falling asleep.
Later Mr Edwardson said:-
"In fact, you might think the evidence of Richards is more consistent with one of two things happening. He either momentarily lapsed into sleep, or he was sidetracked or distracted and during that time his vehicle gradually veered onto the incorrect side of the road and a genuine accident occurred.
You have, as I have said to you, that gradual veer from one side of the road to the other. Evasive action was only taken, according to Richards, when he said 'Hey, mellow' and lunged for the steering wheel. No doubt it was his action which, if my client was briefly asleep, woke him up when the corrective manoeuvre was made."
"In other words, this whole incident happened in a very short space of time. It is quite consistent, you might think, with a momentary sleep or lack of attention or deflection from his driving task, as Mr Sellen has told you."
"Without any warning (the appellant) says 'I must have dropped off.' Alternatively, as I have said, his attention was deflected."
" If you think it a reasonable possibility that he might have momentarily fallen asleep, you must at law find him not guilty of anything.
If, on the other hand, you are satisfied beyond reasonable doubt that he did not fall asleep, but you think it is at least possible that there was some momentary diversion or momentary lapse of attention, that sort of thing, then there are alternative charges available to you one of which is, of course, driving without due care and that, I would suggest, is the appropriate verdict, but on the evidence you have heard, I respectfully submit that there can and must be only one verdict on the evidence that you have heard."
The appellant had said in evidence that he remembered nothing until just a moment before the collision when he saw the headlights and bullbar of the other vehicle. He did not suggest that his attention may have been distracted.
The main thrust of the defence case was falling asleep and therefore not guilty of anything: the fall back position was momentary distraction and therefore guilty only of driving without due care.
And so the learned judge directed. He carefully and separately explained the concepts of dangerous driving and of driving without due care. During the latter explanation he said:-
"Driving without due care and attention is something that perhaps all of us who drive motor vehicles, will, from time to time, be guilty of: a momentary lapse, or an act of carelessness, or a momentary human mistake, or an error of judgment or the like."
Had he not meant the jury to consider the alternative defence of momentary lapse there was no point in directing on due care.
Towards the end of the summing up:-
"If you conclude that it is reasonably possible that the accused dozed off to sleep, resulting in this vehicle veering on to the wrong side of the road, ultimately to collide head-on with Adam Wilson's vehicle, then the accused is entitled to be acquitted, that is to say, to be found not guilty of anything. If you have a reasonable doubt about any ingredient of a charge, whether the count as charged, or an alternative charge you are considering, then, of course, you should give the benefit of the doubt to the accused, and you should bring in a verdict of not guilty on that charge. If you conclude that it is reasonably possible that the accused, whilst driving voluntarily, and not asleep, had a momentary lapse and committed an act of carelessness, that is to say he made a momentary human mistake, then it is open to you to bring in a verdict of driving without due care and attention."
In discussion between judge and counsel after the jury had gone out, Mr Edwardson complained that the learned judge had put the Crown case adequately but not that of the defence. He did not, it seems to me, complain that the alternative of momentary lapse had been ignored. His Honour did not redirect.
Of course the learned judge could have said more both about the Crown case and the defence case but he was not obliged to. What he said was sufficient.
There is nothing in the first ground.
As to the second, a failure to direct properly on circumstantial evidence, there was one paragraph in otherwise entirely correct and ample directions on the topic:-
" I have directed your attention to some of the circumstantial evidence upon which the Crown relies. I will be speaking in a moment about this evidence from the defence point of view. I put this to you for your consideration, ladies and gentlemen.
Hayden Richards explains what he saw from his perspective. That you may regard as some evidence constituting suspicion that the accused was awake at the time and driving deliberately on to the wrong side of the road. Then you remember the evidence of Michael Pratt, that is, some further evidence which you may view as constituting suspicion that this was a deliberate and voluntary driving on the accused's part, but it is no more than suspicion. If you add the two suspicions together, then that produces no more than a strong suspicion, but the coincidence between the circumstances, if you find them each to be proved, independent of each other, both pointing to the one and same principal fact, namely, that this was a deliberate course of driving, might, in your judgment, increase the suspicions to the level of proof."
Mr Martin complained that, "suspicion" is not enough: it would not matter how many "suspicions" one had, they still would not add to a proven fact.
The use of the words "constituting suspicion" and "suspicion" were unfortunate. Better words may have been "indicating" or "indication". As Miss Trish Kelly, for the respondent, pointed out, the last sentence in the quote, in which are the words "if you find each to be proved" is an impeccable direction. I notice too, earlier, in his summing up that the learned judge had said:-
" If you are using circumstantial evidence, ladies and gentlemen, you are not permitted to infer a fact from doubtful facts."
While the language used in the paragraph of which Mr Martin complained is unfortunate I do not think it sufficient to undermine what were otherwise entirely appropriate and full directions on circumstantial evidence.
I do not accept the second ground.
The final ground was that the verdicts were unsafe and unsatisfactory.
Having been through the evidence, considered the addresses and the summing up I reject this ground too.
There was evidence on which a jury, properly instructed, as this one was, could find the allegations of dangerous driving proved beyond reasonable doubt. No one could say with confidence why the appellant drove as he did. He said he must have gone to sleep. Given that he denied he was tired, said he had had eight hours sleep, it was the middle of the day, had no alcohol, been surfing for three hours, there was nothing to support his explanation of going to sleep. Richards' evidence did not assist. He said he could not see the appellant's face which was hidden by the appellant's hair.
Nor was there evidence of anything which may have distracted the appellant's attention.
Why, whatever the state of the appellant's attention may have been, Richards, who had seen Adam Wilson approaching before the appellant veered across on to his incorrect side, gave no warning, did nothing until an attempt to grab the wheel just before impact, is a puzzle to me.
Likewise the circumstance of veering to the incorrect side of the road and veering back towards the correct side again, does not indicate to me a sleeping driver or one momentarily distracted. There was no suggestion of any sudden movements such as one might expect of a driver waking up, or regaining his attention and then trying quickly to react to a situation.

This was very much a jury case. The jurors saw and heard the witnesses. They heard statements from others read out. It was for the jurors to make up their minds who they believed, what they believed and the inferences they drew from the evidence. They did so and convicted.

I suggest the appeal be dismissed.

Perry J

I agree that the appeal should be dismissed for the reasons given by Millhouse J.

Nyland J

I agree that the appeal should be dismissed for the reasons expressed by Millhouse J.

[1998] SASC 6787

20 August 1998