Ward v R - [2013] NSWCCA 46

Court of Criminal Appeal

New South Wales

Case Title: Ward v R

Medium Neutral Citation: [2013] NSWCCA 46

Hearing Date(s): 14 December 2012

Decision Date: 01 March 2013

Before: McClellan JA at [1]
Latham J at [246]
Adamson J at [247]

Decision:
1. Refuse leave to appeal the conviction except for Ground 6.
2. Grant leave to raise Ground 6 of the appeal but dismiss that ground.
3. Grant leave to appeal against sentence and dismiss that appeal.

Catchwords: CRIMINAL LAW - application for leave to appeal against conviction - murder - direction on standard of proof - direction regarding rejected plea to manslaughter - direction on intoxication and intent - direction on provocation - direction on substantial impairment CRIMINAL LAW - application for leave to appeal against sentence - whether offence was mid range - effect of intoxication and culpability on sentence - approach to standard non-parole period after Muldrock v The Queen [2011] HCA 39; 224 CLR 120 - applicability of special circumstances.

Legislation Cited: Criminal Appeal Rules
Criminal Appeal Act 1912

Cases Cited: Aslett v R [2012] NSWCCA 235
Beldon v R [2012] NSWCCA 194
Collier v R [2012] NSWCCA 213
Darwiche & Ors v R [2011] NSWCCA 62
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Edwards v R [2009] NSWCCA 199
FP v R [2012] NSWCCA 182
Green v R (1971) 126 CLR 28
Green v The Queen (1996-97) 191 CLR 334
House v The King (1936) HCA 40; 55 CLR 499
Libke v The Queen (2007) 230 CLR 559
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Ng v R [2011] NSWCCA 227
Papakosmos v R [1999] HCA 37; (1999) 196 CLR 297
R Margach [2007] VSCA 110
R v Bellchambers [2008] NSWCCA 235
R v Camplin [1978] AC 705
R v Chai [2002] NSWCCA 512
R v Cheatham [2002] NSWCCA 360
R v Croft [1981] 1 NSWLR 126
R v Engert (1995) 84 A Crim R 67
R v Garlick [1981] 72 Cr App R 291
R v Gieselmann (Unreported, NSWCCA, 12 November 1996)
R v GWM [2012] NSWCCA 240
R v Hazeltine [1967] 2 QB 857; 51 Crim App R 351
R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
R v Makisi [2004] NSWCCA 333
R v McGregor-Reid [1999] Crim LR 860
R v McKeown [2006] VSCA 74
R v Page [2008] VSCA 54
R v Picken [2007] NSWCCA 319
R v Ryan (1995) 90 A Crim R 191
R v Tripodina (1998) 35 A Crim R 183 at 195
R v Viro (1978) 141 CLR 88
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Yeardley [2000] 2 Crim App R 14
RWB v R [2010] NSWCCA 147
Shaw v The Queen (1952) 85 CLR 365
Teckley v R; Nagle v R [2007] NSWCCA 75
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Van den Hoek v The Queen (1986) 1 61 CLR 158

Category: Principal judgment

Parties: Sarah May Ward (Applicant)
Crown

Representation

- Counsel: Counsel:
M Ramage QC (Applicant)
M Cinque (Crown)

- Solicitors: Solicitors:
Jeffreys Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/11037

Decision Under Appeal

- Before: Howie J

- Date of Decision: 22 April 2010

- Citation: [2010] NSWSC 304

- Court File Number(s): 2009/11037

JUDGMENT

McCLELLAN CJ at CL: The applicant was convicted following a trial with a jury of the murder of Eli Westlake. She was sentenced to imprisonment comprising a non-parole period of 18 years 9 months commencing on 7 June 2008 and expiring on 6 March 2027 with an additional term of 6 years 3 months. She seeks leave to appeal her conviction.
The grounds of appeal against conviction which were filed are as follows:
1. The trial miscarried;
2. The trial judge misdirected on the standard of proof;
3. The trial judge gave confusing and incorrect directions on the effect of the accused's rejected plea to manslaughter;
4. The trial judge erred in failing to direct on accident;
5. The trial judge erred in his directions on intoxication and intent;
6. The trial judge erred in his directions on provocation;
7. The trial judge erred in his directions on substantial impairment;
8. The trial miscarried as a result of incorrect admission and rejection of evidence;
9. The trial miscarried as a result of the accused being incompetently represented.
The applicant also seeks leave to appeal her sentence. I will consider that issue after considering the application for leave to appeal against the conviction.
Leave
Many of the grounds of appeal raise for consideration the application of Rule 4 of the Criminal Appeal Rules. The applicant also requires leave to appeal out of time pursuant to s 10(1)(b) of the Criminal Appeal Act 1912.
The applicant was found guilty on 24 March 2010 and was sentenced on 22 April 2010. Notice of Intention to Appeal was filed on 4 May 2010 and expired on 4 November 2010. It was not until 29 May 2012 that a notice of application for extension of time to file a notice of application for leave to appeal was filed. The notice was accompanied by an affidavit from the applicant's solicitor seeking to explain the delay.
In that affidavit Mr Green deposes that a grant of legal aid was made in October 2010 when the matter was assigned to his firm. However, it was not until August 2011 that a conference was held with the applicant. In September 2011 senior counsel advised that there was merit in both the conviction and sentence appeals. However, at that time he also advised that further work needed to be done and sought further instructions from the applicant.
The applicant was provided with a copy of a draft notice of appeal and written submissions on 28 November 2011. Thereafter the solicitors had corresponded with her and trial counsel. It would seem that only in April 2012 was it appreciated that in order to pursue the appeal it would be necessary to view an original copy of the CCTV footage taken of the relevant events. This is surprising given that the record of the relevant events revealed by the footage is one of the most significant parts of the evidence in the Crown case. The CCTV was obtained following which the grounds of appeal were finally settled on 14 May 2012, the submissions being completed on 25 May 2012.
The principles relevant to an application for leave to extend the time to appeal were reviewed by this Court in Ng v R [2011] NSWCCA 227 which referred to Edwards v R [2009] NSWCCA 199:
"In the context of an application for extension of time to seek leave to appeal against sentence, this Court said in Edwards v R [2009] NSWCCA 199 at [8], [13]:
'The court has a discretion with respect to extension of time under s 10(1)(b) Criminal Appeal Act 1912. In exercising that discretion, the court has regard to the prospects of success on the application for leave to appeal itself: R v Young [1999] NSWCCA 275 at [30]ff. The court will usually require some satisfactory explanation as to why an appeal was not brought within the time allowed, especially if the delay is considerable: R v Beattie [2000] NSWCCA 201 at [17].
...
The principle of finality of litigation is relevant on an application such as this. Although it may be, as here, that the Crown cannot point to any actual prejudice because of the delay in bringing the application, there is a public interest in avoidance of delay, and the finality of litigation, in the area of sentencing as with litigation generally. In many cases, the prospect of sentence being reopened long after the event may impact adversely upon complainants of crime."
As the Court made plain, although it is necessary to consider the interests of the applicant in being able to pursue an appeal, there is a public interest in the avoidance of delay and the finality of litigation. That interest also reflects the necessity for the court to be mindful of the impact that the reopening of the proceedings may have upon either the victim of an offence or, in the event of a homicide, those who have suffered the grief and loss of a family member or close friend.
I shall return to consider the application for leave after I have considered the merits of the grounds of appeal.
The facts
The trial judge made findings of fact in his remarks on sentence which I am satisfied accurately summarise the relevant events reflected in the evidence at the trial.
The deceased, his brother Joel, and a number of other young persons had gathered at Joel's home principally to record music by a band in which a number of them played. After the recording session concluded they consumed alcohol and eventually decided to walk the short distance from the premises to a local tavern. CCTV footage shows that at about 3.00am the group walked past the place where the main incidents leading to the death of the deceased later occurred. The deceased can be clearly identified, being the only person wearing a white top. The group went to the tavern where they drank alcohol, talked and played pool. They left at closing time, about 4.00am.
In the meantime the applicant had left her premises with a companion to purchase cigarettes at a convenience store on the corner of Christie Street and the Pacific Highway at St Leonards. This store is directly opposite the tavern on the other side of the Pacific Highway from where the group of young persons had been drinking. The applicant had been consuming alcohol since the afternoon and had also smoked cannabis. She took the keys of the vehicle owned by the person, with whom she was residing at the time, without his knowledge. She was unlicensed to drive and was very much under the influence of alcohol.
The applicant drove the vehicle down the Pacific Highway and eventually entered Christie Street at the corner where the convenience store was situated. In the meantime the deceased's group had left the tavern. They crossed the Pacific Highway and entered Christie Street. As they passed the store, the deceased decided he wanted something to eat. The deceased, his brother and a third member of the group became separated from the rest while a packet of, what were referred to as "cheese balls" was purchased. By this time the rest of the group had gone down Christie Lane, that ran from Christie Street not far from the convenience store to Lithgow Street. There they waited for the other three to join them.
Just how the three, who had stopped at the store, and the applicant's vehicle initially came into contact was not made clear by the evidence. The trial judge concluded that at some stage, as the three young men entered Christie Lane, the applicant turned into the lane from Christie Street. She had travelled past the parking available outside the store and turned into the lane. This meant that she was going the wrong way in a one-way street. At about this time something occurred that caused the three young men to react to the applicant's driving. The trial judge could not determine whether this was because she sounded her horn, or startled them or simply as a result of the fact that she was driving the wrong way in the lane. The deceased reacted by throwing the cheese balls into the air onto the front of the vehicle. He made a sarcastic remark wishing the occupants "happy anniversary" or something similar.
There was an abusive exchange between the three young men and the two occupants of the vehicle causing the passenger to get out to confront them. However, he decided against a physical altercation as Joel was a very heavily built young man whereas the passenger was slight. There is a dispute as to what then occurred. The trial judge concluded that as the passenger tried to re-enter the vehicle, there was a tug of war between one or more of the young men and the passenger resulting in the passenger's shirt and jumper being pulled off him. It was not a serious incident and the passenger regained the safety of the vehicle and retained his clothing.
At about this time the applicant exited the motor vehicle. She was in a highly aggressive and abusive state. The trial judge had no doubt that she confronted Joel, remonstrated with him and commenced to physically attack him. At least one of the three young men was trying to placate the applicant indicating that it was only "cheese balls" that had been thrown onto the vehicle. An observer, Mr Coyle, believed that the deceased was wiping the vehicle with his top in an endeavour to convince the applicant that no harm had been done. The trial judge found that the applicant struck at Joel and at one stage tried to kick him. His Honour concluded that Joel retaliated and as a result the applicant was either pushed or fended off so that she fell to the ground at least once.
Shortly after this incident the three men turned, left the vehicle and walked down the lane to Lithgow Street where the rest of the group were waiting. Joel, with some premonition of danger, ran up Lithgow Street having warned the others to be careful of the vehicle. At the end of the lane the applicant could have driven to the right up to the Pacific Highway which could be easily seen about 50 metres away. However she chose to turn left into that part of Lithgow Street where the group were walking on the pavement. This was an area where a number of commercial premises backed onto the street. There were a number of very large driveways.
The applicant drove along Lithgow Street and suddenly turned left into one of the driveways at the very moment that the deceased was walking across the driveway. She either struck him or came very close to him. I have examined the CCTV footage where this incident can be clearly observed. The vehicle then reversed and the deceased can be seen walking near the passenger side of the car, clearly remonstrating with the occupants. He is then pulled away by one of the group, Stuart Taylor.
The deceased and Taylor then waited behind one of the two industrial bins that were on the kerbside. The applicant's vehicle remained in the middle of Lithgow Street. Although the vehicle is out of the range of the CCTV, the headlights can be seen. The vehicle appears to straighten but remains where it is on Lithgow Street.
One of the group had been lying on the grass verge on the other side of the driveway waiting for the others. He was warned by another of the group to get up because someone was trying to kill them. He got to his feet. The deceased can be seen on the CCTV footage leaving from behind the bins and crossing the driveway. He walked onto the verge close to the building at the far end of the driveway. The headlights of the applicant's vehicle then appear to go into high beam. The vehicle is driven diagonally from the street mounting the curb. It hit a glancing blow to the young man who had been lying on the grass. It then made contact with the deceased who was struck by the front of the vehicle and carried forward. The vehicle continued until it careered down a flight of stairs to a gym at the corner of the building taking the deceased with it and crushing him beneath the vehicle at the foot of the stairs.
The applicant tried to put the vehicle into reverse but it did not move. The passenger exited the vehicle taking the keys with him and fled the scene. Joel returned down Lithgow Street to the scene of the accident. He was joined by some of the group at the front of the vehicle and they tried to lift it off the deceased. By this time the applicant had alighted and went to the front of the vehicle where she tried to help. Joel accused her of having killed his brother and she was told to leave. The applicant was in a highly emotional condition on the roadway when a nurse from nearby premises arrived to offer support.
At this time a call was made to emergency services. A short time later an ambulance arrived and then the police. The applicant was in a very distressed state and concerned that she may have killed the deceased. She eventually made two recorded interviews. In both she was distressed. Her account was in effect that, as a result of the incident in Christie Lane, she was terrified and wanted to escape the group. She said that after turning into Lithgow Street she saw more of the group and panicked. She tried to do a three-point turn to get away. She said that the passenger pulled the wheel and that because of the boots she was wearing, she accidentally hit the accelerator and was unable to stop the vehicle.
It follows from the jury's verdict that the applicant's account of the events when she was interviewed was rejected by the jury. Having myself carefully considered the CCTV footage, it is difficult to reconcile the applicant's account with the two separate movements of the vehicle leaving the roadway and crossing onto either a driveway or the grass verge and directed to where the young persons were walking. I shall discuss this issue later in these reasons.
Rule 4
The applicant concedes that leave is required pursuant to Rule 4 of the Criminal Appeal Rules.
In FP v R [2012] NSWCCA 182 this Court repeated the principles which must be considered when leave is sought pursuant to Rule 4. It is common to refer to the judgment of McHugh J in Papakosmos v R [1999] HCA 37; (1999) 196 CLR 297 at [72]:
"There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted..."
It is important to appreciate that the requirements of Rule 4 are not mere technicalities. In particular, Rule 4 cannot be used to allow an accused who has been convicted having regard to the issues litigated at a trial, to raise a new set of issues on appeal and accordingly seek a new trial where the parameters of the controversy have been significantly altered. If an issue was not raised or an objection not taken at the trial, it is likely that trial counsel could see no advantage in the point or, as is often the case, believed the point to be in conflict with the case the defence was developing before the jury.
There is a fundamental right of an accused person to a fair trial. However, under the adversary system the integrity of the trial process must be assessed having regard to the "battle ground" on which the trial was fought.
Many of the grounds of appeal sought to be raised by the applicant involve issues in relation to the legal correctness of the summing-up by the trial judge. All are matters which could have been but were not the subject of objection at the trial. The fact that no objection was taken at the trial will usually be a reasonably reliable indicator of the fairness of the trial and the adequacy of the trial judge's directions to the jury: Teckley v R; Nagle v R [2007] NSWCCA 75 at [89]; R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at 354.
Before leave is granted under Rule 4 an applicant must demonstrate that there has been a miscarriage of justice in that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R; R v Picken [2007] NSWCCA 319 at [21]. Usually leave will only be granted where the irregularity "is such a departure from the essential requirements of the law that it goes to the root of the proceedings": R v Tripodina (1998) 35 A Crim R 183 at 195.

In Darwiche & Ors v R [2011] NSWCCA 62 Johnson J (with whom McClellan CJ at CL and James J agreed) said at [169]-[170]:
"The Court of Criminal Appeal is a court of error. The Court determines grounds of appeal, whether relied upon as of right or by leave, in accordance with ss 5 and 6 Criminal Appeal Act 1912. Rule 4 Criminal Appeal Rules requires the leave of the Court for a ground of appeal to be taken with respect to a direction, omission to direct, or decision as to the admission or rejection of evidence unless objection was taken at the trial to the direction, omission, or decision by the party appealing.
The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted on the basis of one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial: R v Abusafiah (1991) 24 NSWLR 531 at 536. This ground, and a number of other grounds relied upon by the Appellant Darwiche, have the flavour of an "armchair appeal" , where counsel not involved in the trial has gone through the record of the trial in minute detail looking for error or possible arguments without reference to the manner in which the trial was conducted: R v Fuge [2001] NSWCCA 208; 123 A Crim R 310 at 319-330 [40]-[45]; llioski v R [2006] NSWCCA 164 at [155]."
The respondent submitted that in the present case, whether addressed through grounds 1 to 8 or ground 9 of the appeal, leave to appeal should be refused. It was submitted that the applicant has not lost the chance of an acquittal which was fairly open to her: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124.
The respondent argued that there is a fundamental flaw in the submissions advanced on behalf of the applicant. It was submitted that those submissions failed to appreciate that it is essential when a criticism is advanced of a trial judge's summing up to consider the summing-up, as a whole rather than seek to identify a problem in one sentence or passage which may prove inconsequential or non-existent when the impugned sentence or passage is understood in the context of the entire summing-up. The Crown emphasised the statement by the Victorian Court of Appeal in R v Page [2008] VSCA 54 at [15]-[16] which was in the following terms:
"The submission for the Crown was that the impugned passage needed to be seen in the context of the whole of the charge, in which the judge properly directed the jury as to the drawing of inferences and related those directions to the issue to be determined by the jury. It was submitted that the effect of all of the directions regarding proof of intent was that the jury were properly instructed in accordance with the law.
In my opinion, the Crown submission must be accepted. Axiomatically, the charge to the jury must be read as a whole. Unlike the appellate court, the jury is not reading the charge but hearing it. What matters, therefore, is the overall effect which the charge had on the jury, as best an appellate court can assess it. There is an obvious artificiality in isolating one sentence from a full and detailed charge. Although there may be cases in which a single sentence could be viewed as having 'supplanted, overridden or overtaken' other explanatory or qualifying statements elsewhere in the charge, this was certainly not such a case. As appears from the final extract from the charge set out in [12] above, the impugned sentence was immediately preceded, and followed, by express references by the judge to the jury's task of drawing inferences and by a reference back to the full explanation of inferences given earlier in the charge."
To my mind, this problem emerges from the submissions of the applicant in this case. The application has many of the indicia of an "armchair appeal." I consider all of these issues when considering the individual grounds of appeal.
The course of the trial
The events which occurred at the commencement of the applicant's trial have significance in respect of the grounds of appeal pursued in this Court. The applicant was arraigned on the sole count of murder in the presence of the jury panel. This occurred on 1 March 2010. The applicant pleaded not guilty to murder but guilty of manslaughter. The Crown did not accept that plea.
There can be no question that defence counsel intended that the prospective jurors be aware that the applicant conceded that she was responsible for the death of the deceased by an act amounting to the crime of manslaughter. In the circumstances of this case it may be readily understood that this was perceived by defence counsel to be an appropriate forensic tactic from which he sought to gain an advantage. The purpose was to seek to persuade the jury that, having accepted responsibility for the death and accepted that she should be convicted of the lesser offence of manslaughter, the jury would more readily conclude that they should find the applicant not guilty of murder. Given the fact that the jury would inevitably come to view the CCTV footage and the powerful evidence which it provided to the Crown to support the charge of murder, and notwithstanding the concession involved in admitting manslaughter, this was undoubtedly a sensible course for defence counsel to take.
In his preliminary remarks to the jury the trial judge sought to give appropriate context to the plea. The trial judge said:
"Perhaps some of the facts that might normally be in dispute wont [sic] be in dispute because (the applicant) has admitted that she is guilty of manslaughter. Now that doesn't bind you in any way but you might take it from what she does admit that she was responsible for the death of Mr Westlake."
His Honour briefly addressed the jury in relation to murder and manslaughter on the ground of substantial impairment and said:
"Now as I understand it, nobody will be suggesting to you that she should be acquitted of any charge whatsoever. But that's a matter for you. Just because the accused pleads guilty to manslaughter doesn't mean that you, properly finding the facts and properly finding the law have necessarily to find her guilty of murder or manslaughter. It's a matter for you.
The Crown rejected that plea, and so, if I can use the vernacular, the ball is in your court. You have to decide whether she should be found guilty of murder or manslaughter in the way that I have very briefly explained those two events to you. It is open to you at law to find her not guilty of either murder or manslaughter, but you might expect at the end of the day that the accused is going to be suggesting to you that she is guilty of manslaughter rather than murder."
Later in the trial the jury sent a question to the trial judge which asked "Could you please reiterate the difference between murder and manslaughter, and the role of provocation!" His Honour told the jury:
"Let me tell you, at this point, provocation has no role to play whatsover.... [A]s I understand it from what was said to you by Mr Wasilenia at the time he was opening to you, the accused is not suggesting that she was provoked. What she is saying, as I understand it, is that in some way this is accidental. The only basis that I understand at the present time that manslaughter is being relied upon by the accused is either on the basis that she did not intend to kill the deceased, but that it was very bad driving on her part, or that if you find that she did intend to kill the deceased then that she could prove the defence of substantial impairment."
His Honour then gave the jury a brief outline of the law in relation to provocation and said:
"If on hearing all the evidence at the end of the day I believe the issue of provocation has been raised, then I will tell you and I will give you proper directions of law on provocation. At this stage, put it out of your minds."
Towards the end of the evidence there was a discussion between the trial judge and counsel with respect to the issues which the jury would have to resolve. His Honour noted the fact of the plea and received an affirmative reply from the applicant's counsel when he asked whether the plea was based on gross criminal negligence. To his Honour's question whether the applicant could be acquitted Mr Wasilenia said:
"That means that they would have to reject the plea as your Honour mentioned.
HIS HONOUR: The Crown's rejected the plea. The plea is not before them.
WASILENIA: It would logically follow I think your Honour that they could if they rejected gross criminal negligence."
The Crown Prosecutor then raised the issue of manslaughter by unlawful and dangerous act and his Honour asked Mr Wasilenia to give it some consideration.
At the conclusion of the evidence his Honour sought further assistance in identifying the issues and the necessary directions for the jury. In particular he raised the matter of the applicant's plea to manslaughter at the start of the trial and the issue of provocation. He ultimately told counsel that if he decided upon further consideration to leave provocation and gross criminal negligence manslaughter to the jury he would provide them with some further draft written directions. This ultimately occurred.
When the Crown Prosecutor addressed the jury she reminded them that the applicant's version in the ERISP was that "this was basically an accident".
When defence counsel addressed the jury he dealt at length with the applicant's account in the ERISP and then compared it with the eyewitness evidence. The essence of his address was that the event was an accident but that if the jury did not accept that explanation they would find the applicant guilty of manslaughter on the basis of substantial impairment. He did not address provocation.

The grounds of appeal

Ground 1

This ground adds nothing to the applicant's case and no more need be said about it.
Ground 2
It was submitted on behalf of the applicant that the trial judge had given the jury inappropriate directions in relation to the standard of proof. Senior counsel for the applicant confined the submission to a complaint that when informing the jury that the Crown must prove its case beyond reasonable doubt his Honour inappropriately said "they are every day ordinary words" and later said "what you have to do is think about them as a concept. You don't look at them individually and you don't ask what this word means and that word means." It was submitted that his Honour was in error by making these remarks to the jury and that no trial judge should go beyond telling the jury that the words "reasonable doubt" are every day words which mean what they say.
It is important to appreciate that the comments of his Honour which are criticised formed part of a comprehensive direction in relation to the standard of proof. That direction was in the following terms:
"HIS HONOUR: The Crown must prove the essential factors that go to make up the charge of manslaughter or murder, however shape the manslaughter takes, except for substantial impairment, beyond reasonable doubt.
Now you have understand that those words, they are every day ordinary words. What you have got to do is to think about them as a concept. You don't look at them individually and you don't ask what this word means and that word means. You look at it as a concept and you think to yourself, at the end of the day has the Crown satisfied me beyond reasonable doubt, for example in murder, that when the accused drove at the deceased she did so intentionally? She must have done it intentionally if it is to be murder.
Another way of doing it is to ask yourself, is there any reasonable possibility that when she drove at the deceased on the second occasion she did not intend to drive at him? If that reasonable possibility exists the Crown does not satisfy you that her version, in effect, in the record of interview could not possibly be true then the Crown has failed to prove beyond reasonable doubt that the charge of murder. It is the same way of looking at it. Am I satisfied beyond reasonable doubt, means the same thing as saying, has the Crown convinced me that the opposite could not possibly reasonably be true? The easiest way to think about it, as I say, is in relation to the accused's record of interview. The Crown must satisfy you to the charge of murder that account could not reasonably be true. She does not have the proving that it is, or could possibly be true [sic]. The Crown has to for the charge of murder has to make it clear to you that you would reject it as a possible account, as a possible scenario. So that is how the onus of proof works."
In RWB v R [2010] NSWCCA 147 Simpson J considered in some detail, decisions relating to trials where the trial judge had given the jury instruction in relation to the meaning of the words "beyond reasonable doubt" (see in particular Green v R (1971) 126 CLR 28). Her Honour said that it will not be in every case that where the strictures of appellate courts have gone unheeded it may be concluded that the transgression has given rise to a miscarriage of justice.
However, critical to a conclusion that a direction which is not confined as required by Green has caused a miscarriage of justice will be whether or not the direction which has been given had the effect of diminishing the standard of proof (FP v R [2012] NSWCCA 182 at [178].
In the present case it is plain that the trial judge emphasised to the jury that the Crown must prove its case beyond reasonable doubt. Although his Honour's comment that the phrase was to be viewed as a concept and the words should not be looked at individually was unnecessary, they did not in any way diminish the standard of proof. For this reason there is no merit in the argument that his Honour misdirected the jury.
In further support of this ground of appeal senior counsel for the applicant referred to his Honour's instruction to the jury in relation to the proof of the Crown case by reference to a set of balance scales. The statements criticised were firstly that his Honour said "[i]n a criminal case if you put the Crown's evidence and arguments on one side of the scale in one pan and you put the defence arguments and defence evidence in other side of the pan the scales must go that way, must tip over in favour of the Crown." Counsel emphasised that his Honour went on to give a description of the civil onus intending to contrast it with the position in a criminal case, by reference to the scales saying "if they tip over ever so slightly in favour of the plaintiff the plaintiff has succeeded."
It was submitted that these directions were wrong and misleading because they diminished the force and degree of certainty required before the Crown could discharge the criminal standard of proof.
This submission is without merit. Firstly it is apparent that when his Honour spoke of the scales tipping in relation to the criminal onus, his Honour must have demonstrated using his hands to indicate how the scales must tip. More importantly the passages from the summing-up selected by counsel for the applicant form part of a more comprehensive direction in which his Honour emphasised to the jury that the Crown must prove its case beyond reasonable doubt. The entire passage was as follows:
"The criminal onus is proof beyond reasonable doubt. The civil onus is proof on the balance of probabilities. One way that is used to explain it, I do not know if it is helpful or not, but I might as well do it because everybody does it and it may help you understand the difference. Think of the set of balance scales, you know, the old scales that used to be in chemist shops, a set of traditional scales of justice, if you like, that is where they are there for [sic]. In a criminal case if you put the Crown's evidence and arguments on one side of the scale in one pan and you put the defence arguments and defence evidence in other side of the pan the scales must go that way, must tip over in favour of the Crown. That is because the onus of proof is on the Crown and it is proof beyond reasonable doubt.
But if we are in a civil case you put the evidence of the plaintiff and the plaintiffs arguments in one pan and you put the defendant's arguments and evidence in the other pan. If they tilt ever so slightly in favour of the plaintiff the plaintiff has succeeded. That is because the balance is moved ever so slightly. It must move. If it moves in favour of the defendant, or does not move at all the plaintiff loses." (Emphasis added)
Finally, in support of this ground of appeal it was submitted that his Honour failed to direct the jury in relation to the "presumption of innocence" which it was submitted may have assisted in correcting what was asserted to be the incorrect description of "beyond reasonable doubt."
Apart from my conclusion that there was no incorrect description of the concept of "beyond reasonable doubt", the trial judge at an early stage of the trial reminded the jury that the applicant was "presumed innocent", had to prove nothing and the onus fell upon the Crown to prove its case beyond reasonable doubt. On a number of occasions in the course of his summing up the trial judge repeated the instruction that the Crown must prove its case beyond reasonable doubt. I am not persuaded that the fact that his Honour did not refer to the presumption of innocence in the course of the summing up caused any disadvantage to the applicant or had any impact on the trial.
In my judgment the arguments advanced in relation to Ground 2 are entirely without merit and leave to raise them should be refused.
Ground 3
As I have previously indicated during the course of his initial remarks to the jury, the trial judge referred to the fact that the applicant had pleaded guilty to manslaughter with the consequence that facts that might otherwise have been in dispute were now not in issue. His Honour indicated that it would seem that there was no issue that the applicant's act caused the death of the deceased. However, his Honour did note that although it was open to the jury to find the applicant not guilty of murder or manslaughter, the jury could expect "at the end of the day that the accused is going to be suggesting that she is guilty of manslaughter rather than murder."
In the written submissions made to this Court it was submitted that his Honour erred by referring to the manslaughter plea which, having been rejected, "must be rejected as having been withdrawn and should have been treated as a nullity." Three cases were advanced to support this proposition: R v Hazeltine [1967] 2 QB 857; 51 Crim App R 351; R v McGregor-Reid [1999] Crim LR 860 and R v Yeardley [2000] 2 Crim App R 14. It was further submitted that it was inappropriate for the trial judge to make these statements at the outset of the trial and the jury should have been directed to ignore what his Honour had said. It was further submitted that it was incumbent on the trial judge to explain that the applicant was not saying she had done a deliberate act but was accepting that she was negligent.
Further complaint was made that his Honour on more than one occasion in the course of the summing up referred to the fact that the applicant did not dispute her criminal responsibility for the death of the deceased and on occasions said that "murder or manslaughter ... appeared to be the two realistic options."
On another occasion his Honour said to the jury "you cannot accept her plea as meaning anything in particular except that she accepts responsibility for killing the deceased."
Apart from the submission that the rejection of the plea should have meant that it was not referred to it was submitted that his Honour gave an unfair and inaccurate description of how trial counsel put the applicant's case. On one occasion his Honour said that the Crown had to prove its case beyond reasonable doubt but added "but she [the applicant] says, at least, well I am guilty of manslaughter on that basis, simply from what I said to the police on the particular day in question." It was submitted that it was unfair to remind the jury of what the applicant had said when she spoke to the police at a time when she was both inebriated and in a state of some shock. It was further submitted that nowhere in the course of his final address did defence counsel make the submission that the applicant was guilty of manslaughter. It was submitted that the effect of his Honour's direction was that the jury were directed not to consider whether the collision was an accident.

As I have previously mentioned, towards the end of the evidence the trial judge raised with defence counsel the applicant's plea of guilty to manslaughter. It is necessary with respect to this ground of appeal to consider what occurred in a little more detail.
His Honour said:
"Now, Mr Wasilenia, I am troubled about the plea of guilty. Do you still say it could be justified on the basis of gross criminal negligence?
Wasilenia: Well, your Honour, it's my submission it is open to the jury bearing in mind, one, there is the alcohol reading, secondly, there is the influence of drugs, thirdly, there's the driving in against the signage. That is, going the wrong way down the one-way street in Lithgow [sic], and at a time when pedestrians are present on the roadway as well as on the footpath and then subsequently mounting the footpath where there are pedestrians present, and it places a duty of care.
His Honour: I'm not troubled by all of that. but what I am troubled by is the very high breach of the duty of care that's required for gross criminal negligence. Anyway, you submit that I should leave it open to the jury to find her guilty of gross criminal negligence, manslaughter?"
Subsequently the issue was again discussed. The Crown Prosecutor submitted that gross criminal negligence manslaughter arose having regard to the applicant's version of the events. The question of leaving the alternative of aggravated dangerous driving was also discussed. In the course of that discussion, defence counsel conceded that there was no defence to a count of aggravated dangerous driving.
During the course of the remarks which his Honour made to the jury before commencing his summing-up, the trial judge reminded the jury that when opening his case, defence counsel had told the jury that the applicant had entered a plea of manslaughter because she admitted that her negligent driving was so gross as to amount to manslaughter.
In the course of the summing-up his Honour said:
"Remember what I said to you that the accused pleaded guilty at the start of the trial to manslaughter. As it was put to you in opening, the manslaughter that she was accepting that she committed was gross criminal negligence manslaughter. That does not mean that you are bound to find that way. You can not accept the plea as meaning anything in particular except that she accepts responsibility for the killing of the deceased. That plea was rejected by the Crown. It is now open to you to decide what is the appropriate verdict irrespective of the plea based upon your understanding of the facts that you find proved and applying the law to them."
This direction emphasised to the jury that they were to disregard the plea and determine the appropriate verdict for themselves. Although the issue had been discussed, both with the jury and in their absence, in the manner which I have previously indicated, it was this direction which brought the matter into its proper context.
It is significant that trial counsel did not object to the course which the matter had taken. There is nothing to suggest that he adopted this position otherwise than because of the potential forensic advantage in the jury finding manslaughter rather than murder. As I have previously indicated this was a legitimate course for him to take and is a position commonly adopted in trials where there is little prospect of avoiding a conviction for manslaughter but a prospect that an acquittal on the murder count may result.
With respect to the other two issues raised under this ground of appeal there was no complaint at the trial from defence counsel. The jury could hardly not have been mindful of the fact that when the applicant spoke to the police she was still under the influence of alcohol and affected by the accident.
In relation to the submission that trial counsel did not make the submission that the applicant was guilty of manslaughter, the position is that he made submissions to the effect that the collision was "an accident." He ended his address to the jury with a submission that the applicant was not in a fit state at any time to be driving the vehicle. He said "when this collision occurred it created a set of consequences that resulted in an appalling tragedy but murder it ain't."
Implicit in counsel's submissions was an acceptance that, although the applicant did not suggest that she was provoked, a proposition never advanced by defence counsel, the jury should find her guilty of manslaughter but not murder. Far from complaining about the manner in which the trial judge had dealt with the issues created by the entry of the plea before the jury to manslaughter, counsel effectively embraced it. It could not have been other than a conscious decision to enter the plea before the jury panel. Once that had occurred, the fact of the plea could not simply be ignored. It was necessary to put it into context for the jury. Furthermore the trial judge had to ensure that the forensic advantage which the applicant sought by entering a plea was not lost. The trial judge appropriately dealt with these matters.
I would refuse leave to raise this ground of appeal.
Ground 4
The applicant submitted that there was a possibility that the incident was an accident. It was submitted that this possibility was recognised by the trial judge when he spoke to some visiting students about the trial in the absence of the jury. It was submitted that notwithstanding this possibility, no directions were given in relation to the issue of accident.
It was submitted to this Court that the effect of his Honour's direction in relation to manslaughter was to effectively exclude the issue of accident from the jury's consideration. It was submitted this was reinforced by his Honour referring on more than one occasion to either the motor vehicle or the applicant driving at the deceased and a further direction that "this wasn't an accident, it was an intentional act on her part."
In the course of his summing up the trial judge addressed the issue of provocation. His Honour said using conventional language: "so you have to consider whether there is a reasonable possibility that the accused did lose her self control by reason of what the deceased and his group said or did to her during the events in the lane." His Honour also said that the applicant had not asserted "she was provoked, rather she says she panicked and accidentally drove at the deceased; in effect, it was an accident as a result of her very incompetent driving." The possibility that the event was an accident was accordingly addressed by his Honour. However, having regard to the sequence of events revealed by the CCTV footage, the prospect of the jury finding that the applicant's actions were not deliberate were slim if non-existent.
With respect to the submission that his Honour erred by saying to the jury at one point in the summing-up "this wasn't an accident ..." it is apparent the applicant's counsel framed the submission without reference to the context in which his Honour spoke. The full sentence, from which part was extracted by counsel, was as follows:
"so if you come to this question of murder you must at least have come to the view that notwithstanding her intoxication she was able to form certain intentions, and one of those intentions was to drive at a particular person; this wasn't an accident, it was an intentional act on her part."
When seen in the context of the entire sentence it is plain that his Honour did not direct the jury that the applicant had committed an intentional act. All that his Honour was saying was that in order to reach the conclusion that the applicant may be guilty of murder or, in the alternative manslaughter by reason of provocation, the jury would have to find that when driving at the deceased she was carrying out an intentional act. It is unfortunate that the submission was made as it was. It completely misrepresents what his Honour said.
There is no merit in this ground of appeal and leave to raise it should be refused.
Ground 5
The applicant accepted that she was heavily intoxicated with a combination of alcohol, cannabis, ecstasy and prescription drugs at the time of the collision. Apart from the evidence of her blood alcohol level she was described by a constable who attended at the scene as "being unsteady on her feet, very emotional, shaking and crying uncontrollably." At 5.00am she was described by another policeman as appearing to be affected by alcohol, unsteady on her feet and her breath smelt of alcohol. When her blood alcohol level was taken at Royal North Shore Hospital, about two hours 10 minutes after the collision, she returned a reading 0.171. The Crown did not dispute that at the time of the accident the applicant was affected by alcohol, ecstasy, Valium or diazepam. There was evidence from Dr Allender that the combination of alcohol and the drugs would have affected the applicant's driving ability and would have been likely to increase her aggression and risk taking behaviour.
Although the matter passed without controversy at the trial, the applicant complained to this Court that his Honour had made a number of errors when directing the jury on these issues. To my mind there is no substance in these complaints. Although it is necessary to record the submissions, it is not necessary to otherwise discuss them in any detail.
The trial judge directed the jury in relation to the relationship between intoxication and the capacity to form an intention. His Honour said:
"You can have an intoxicated intention. You can have an intention that is based on alcohol and drugs. In fact, very often, unfortunately, the situation is that a person forms a certain intention because they are intoxicated and they would no [sic] not have formed it if they were not."
The applicant complains that although it may be true that a person can have a "intoxicated intention" the balance of the direction was not a matter of judicial knowledge and should not have been made. It was submitted that the last part of the direction was misleading.
During the course of the trial the trial judge said to the jury on this issue:
"You have a specific intention to do something, even though you are intoxicated. That may be the reason why you have that intention. You have heard some evidence about the disinhibiting effect of alcohol. How sometimes people will do things, form intentions, carry out actions they wouldn't do if they were stone cold and so on."
The applicant submitted that these remarks were "prejudicial" and should not have been made. It was submitted that when read together with other directions and comments by the trial judge, the directions were in substance directions of law to the effect that rather than confusing the accused her intoxication caused her to have a positive intent. It was submitted that his Honour's directions "invited the jury to be satisfied of the accused's intent because generally alcohol caused such an intent."
Complaint is made about other directions or comments which the trial judge made in relation to intoxication.
At SU 30 the trial judge directed or commented that: "Nobody is suggesting here that the accused was so intoxicated that she did not know what she was doing at any state at any time."
It was submitted that this did not do justice to the applicant's case because she had effectively told the interviewing police that she did not understand how she had come to be where she was or, how she hit the deceased; she showed confusion and considered herself to be still drunk, as did others who observed her, when she was being interviewed.
Complaint is also made in relation to the further statement by his Honour: "Of course it also may be relevant in explaining, if you accept her account, as a possible scenario as to why she mishandled the motor vehicle, because she was intoxicated."
It was submitted that this was incorrect and misleading in so far as it again invited the jury to consider her (confused) account and if they rejected it to dismiss the effect of intoxication. It was submitted that it also raised the suggestion that this was something like a special defence for which there was a burden on the accused to establish.
It was further submitted that the simple and correct direction to the jury that should have been given was that if the jury thought that the applicant did not or might not have had the requisite intent then they should acquit her.
During the discussion of the expert evidence with respect to abnormality of mind his Honour said: "intoxication can impact upon people differently and it can make them more impulsive. It can make them more irascible."
It was submitted that these remarks were highly prejudicial and should not have been made. It was submitted that they were not and could not properly have been given as a direction of law but were very likely to have been received by the jury as such. It was submitted that they were doubly unfortunate in a trial where one argument being advanced by the Crown was that the applicant had simply lost her temper over a very trivial incident.
On Friday 25 March 2010 after retiring, the jury asked the following question "how does intoxication impact upon the formation of intent?"
The trial judge responded by giving further directions in the following terms:
"If we're dealing with murder you must have come to the conclusion that she at least intended to drive the motor vehicle at the deceased or one of the group, whether she picked him out particularly or was just driving at any person. So if you come to this question of murder you must have at least come to the view that notwithstanding her intoxication she was able to form certain intentions, and one of those intentions was to drive at a particular person; this wasn't an accident, it was an intentional act on her part."
The following submissions were made:
(i) the direction was not correct and confused the issue. It assumed a vital issue that the jury had to decide, namely that the jury had already decided that the accused had deliberately driven at the deceased or the group. A vital issue that the jury had to determine was whether at the time the path of the accused's vehicle went in the direction of where the deceased or the group of young persons was, the applicant was deliberately aiming at him or them. That required a consideration of the effect of alcohol and drugs on her. It was submitted that it was quite wrong to commence with the assumption that she intended to drive at the deceased or one of the group. The important issue was not her ability to perform certain physical functions such as steering the car, nor her capacity to form the particular intent but whether she did form such an intent.
R v Garlick [1981] 72 Cr App R 291
(ii) the direction should not have been given as the ability of a highly intoxicated person to carry out complex tasks was not the subject of evidence before the jury. There are abundant illustrations in decided cases of highly intoxicated persons being able to carry out complex motor tasks.
(iii) the direction "this wasn't an accident" was a direction of law that removed from the jury's proper consideration a defence upon which the onus lay on the Crown.
At SU 98/9 the trial judge directed the jury " Don't get confused between blood alcohol readings for the purposes of control of the motor vehicle and blood alcohol readings for the purposes of acting any other way as a human being. There is [sic] a lot of skills involved in a motor vehicle, driving a motor vehicle, beyond the intention. The most drunk person in the world can form an intention to get into the motor vehicle and drive it home. He's formed, or she forms that intention. That's why he or she is in the motor vehicle."
It was submitted that:
(i) far from removing confusion the effect of this direction was to effectively direct the jury to ignore the accused's high alcohol reading which was always an important fact for the jury to take into account when assessing her level of intoxication and its effect on her.
(ii) Nowhere did the judge summarise in detail the evidence of Dr Allender and other doctors on this issue.
At SU 99 the trial judge directed the jury: "but nobody would doubt that the person was capable and did form the intention of driving the motor vehicle, and even formed the intention to drive to a particular place". It was submitted that this "direction" confuses physical ability to steer a motor vehicle with intent. Furthermore, it again confuses the capacity to form an intent with its actual formation.
At SU 99 his Honour said: "Nowhere in the evidence of Dr Allender was it ever suggested to him or by him that the level of intoxication was such that she could not form certain intentions. But let's just have a look at it. This is not a theoretical exercise, we 're not dealing here with a test for young lawyers about the theoretical impact of alcohol on intention."
Again it was submitted that reference to capacity to form the requisite intent is wrong in law, unnecessary and confusing. Reference was made to R v Makisi [2004] NSWCCA 333 and R v Viro (1978) 141 CLR 88.
The applicant emphasised that following the above, the trial judge proceeded to make a number of references to the fact that no one was suggesting that the applicant was unable to form the intent and it was submitted "put sarcastic and unreasonable propositions" to the disadvantage of the applicant which the jury was bound to reject. The applicant drew attention to the following matters in the summing-up:
At SU 100 the trial judge told the jury: 'Was she driving in some randomly unreasonable, unpurposeful way, she just got in the motor vehicle and thought she'd just tour the streets without any intention of what she was going to do?"
The applicant emphasised that the trial judge went on to then suggest that because the applicant knew where she was going to get cigarettes "... you might accept that she was not that intoxicated that she didn't understand that" and then told the jury that because she had said that she had got out of the vehicle to help or assist Mr Long that was "purposive intentional behaviour" although it was submitted that that proposition was directly contrary to the Crown case.
At SU 101 the trial judge said to the jury: "She got out of there with a specific intention, not just to drunkenly wander around the streets unsure of what she was doing, without any formed intention."
At SU 101 the trial judge said to the jury: "If you accept that she kicked one of the persons or that she abused one of the persons, again, it was all intentional purposive behaviour..."
At SU 101 his Honour told the jury: "So we know that although she's intoxicated, although she's got a reading of at least 0.161, although that's a very high reading for the use of a motor vehicle, it's well over the limit for driving a motor vehicle, that doesn't necessarily tell you anything about what her intentions were and whether she was capable of forming a particular intention to bring about a result."
At SU 101 his Honour told the jury "she gets back to the motor vehicle ... - its again purposive intentional behaviour. The accused's case was that she wanted to get out of the street, - purposive intentional behaviour. She wanted to avoid the boys, the group. She wanted to get to safety. An intention to act in a particular way, to achieve a particular result, to achieve a particular object."
At SU 102 his Honour told the jury "... nobody's suggesting that what she's doing was not purposive; that she didn't have an intention to bring about a result."
At SU 102 his Honour told the jury: "So the point here is that nobody's really suggesting on any count that she was so drunk that she was unable to form intentions, that she was unable to act purposively to bring about a result..."
At SU 102 his Honour told the jury: "Now you have to take intoxication into account, but you've got to look at it in a real situation, what was going on here and what's each side saying about it."
At SU 103 his Honour told the jury: "Nobody is suggesting that she was so drunk that she was incapable of knowing what she was doing, knowing what she wanted to do, knowing what purpose she wanted to gain, knowing what objective she wanted to bring about..."
At SU 103 his Honour reiterated in part what he had said earlier, saying: "Now the importance of intoxication might explain why people do things and we talked about this yesterday. She told the police officers that one of the problems she had was alcohol and that sometimes it had an effect on her and that, you might think she's suggesting that sometimes it made her aggressive."
At SU 103 his Honour told the jury: "So it impacted on her intention, it impacted upon her purpose, it didn't eradicate them. It didn't mean that she didn't have an intention. It meant that she might have had an intention to do a particular thing that she might not have had that intention to do had she been stone cold sober"... "But, so, sometimes the alcohol can in fact, rather than tell you or rather than indicate that the person hasn't got a specific intention, indicate the person has it. Because an intention, even if its an intoxicated intention, even if its an inhibited intention, is an intention, and we know that alcohol sometimes leads us to do things, leads us to make decisions, leads us to have intentions that we wouldn't have if we weren't under the influence of alcohol."
At SU 104 his Honour told the jury, referring to the applicant's version: "Reject that version, reject beyond reasonable doubt, and then come to look at the impact of alcohol on her. Did it make her form an intention that she wouldn't have done if she had been sober? Had it made her aggressive, had it led to her forming a view or forming an intention to do something that she wouldn't have done had she been stone cold sober and thought about it?"

It was submitted that the final directions in relation to intoxication and intent were inaccurate, misleading, conflated ability to perform a physical act with purpose and conflated purpose with intent. It was submitted that the remarks set a tone of sarcasm and denigration of the applicant's case and amounted to a final Crown address highly prejudicial to the applicant. It was submitted that by the series of examples of so called purposive behaviour the trial judge misled the jury on the real issue of the effect of alcohol on the applicant's specific intent.
It was further submitted that the trial judge failed to put an alternative scenario open on the evidence.
At T648 the trial judge said of the jury, in the latter's absence: "they may decide because of her intoxication that she's got no particular intention, she just wants to get him. Maybe she hoped to apply the brakes and scare him and went too far."
At T702 the trial judge said " Well she could have driven at him with an intention to scare him, with no intention to kill or do grievous bodily harm and just mucked it up as it were. So that seems to me to give rise to unlawful and dangerous act."
However, it was submitted that in all his directions/comments to the jury the trial judge never mentioned this line of reasoning as even a possibility. Instead it was submitted that his Honour reiterated with some vigour the Crown argument which the applicant records as an extract from SU 46 in the following terms. The applicant referred to what was said to be an extract from his Honour's summing up. It was not correct. His Honour actually said on this issue:
""[A]nd the Crown says if you reach that conclusion [that the applicant intentionally drove the vehicle at the deceased], why else would she do it other than to do him really serious injury? Why would she do it other than that, or to cause his death?"
And at SU 47 told them:
"If you find that she did intentionally drive at him then of course she would have the intention to kill or inflict grievous bodily harm."
It was submitted that contrary to the above the jury should have been directed that if, because of the evidence of the effect of intoxication or otherwise they were not satisfied that the accused did in fact have the necessary intent they must acquit: R v Bellchambers [2008] NSWCCA 235.
It was further submitted that the trial judge contradicted other directions he gave on intent.
At SU 69 it was submitted that the trial judge cut across all his other directions of their being a requirement for the Crown to establish an intent to kill or cause grievous bodily harm by telling the jury: "people are not that much in control of a motor vehicle that they can decide how much or what degree of injury they are going to impose on a person."
It was submitted that this effectively directed the jury that if they were satisfied that the applicant had driven at or in the direction of the deceased objectively that would suffice to establish the requisite intent. As I have already indicated to my mind there is no substance in the applicant's submissions.
His Honour's comments about the relationship between alcohol and the capacity to form an intention were based on the evidence that was given in the trial by expert witnesses. I am satisfied that the jury would have understood them in this manner rather than as directions of law.
It is important to appreciate that it was not the applicant's case that she was "so intoxicated that she could not know what she was doing at any time." Her case was that she was intoxicated and partly as a result, had trouble with the gear shift, the accelerator and/or the brake. The problems with the brake and accelerator were compounded because of the boots she was wearing in addition to the fact that the passenger had grabbed the steering wheel from her.
A number of his Honour's comments were favourable to the applicant and invited the jury to have regard to whether the applicant mishandled the car as a result of her intoxication rather than intentionally driving at the deceased.
His Honour encapsulated the relevant issue for the jury in the following passage from his summing up
"In effect, the real question here, the one for you to determine, is, remembering where the onus of proof lies and what the standard of proof is, whether it's more likely than not that at the time of the killing, that's the relevant time, the accused was suffering from this abnormality of mind, that is, that she was, as I understand Dr Roberts' evidence, in a manic state which interfered with her capacities in two ways, one, to understand and react to events in a rational and logical way, and, secondly, to control herself.
In other words she was more impulsive. She did not think about consequences because of the effect upon her of this manic state. Dr Roberts said that was even so notwithstanding her highly intoxicated state and effect that that would have the same you might think effect upon her. You can appreciate that we talked about this. Intoxication can impact upon people differently and it can make them more impulsive. It can make them more irascible but anyway that is the issue in a nutshell."
His Honour concluded his directions with the following statement:
"She had an intention. Both sides agree she did. Again, it's for you to decide what that intention was. But nobody is suggesting she didn't have an intention, she didn't have a purpose, she didn't have an objective in what she was doing. She gets to the end of the street. Again, different views about what she was doing and what she could have done or what she was intending to do, but nobody's suggesting that what she was doing was not purposive, that she didn't have an intention to bring about a result. The Crown says her intention, even though it was a drunken one, is to follow the boys and to punish them. The accused's case is no, my intention was to avoid them, I just simply got confused by the signs, I would have better gone right but I went left, I found myself in trouble, there were more people than I believed were there, again, what did I do, I didn't meander around, I didn't drunkenly wonder what I was doing, where I was going, I was confused about the situation; I had a purposive intention to get out of there, to do a three point turn or U turn, purposive, intentional behaviour, even though drunk.
The Crown says no, no, no, that's not her intention, that's not her purpose. Her purpose was to punish. So the point is here that nobody's really suggesting on any count that she was so drunk that she was unable to form intentions, that she was unable to act purposively to bring about a result. The question is, what did she want to bring about?"
His Honour was clearly directing the jury that they had to determine what was the actual intent the applicant had formed. To my mind, there was nothing in his Honour's directions which misstated the issue which was inherent in the "battle ground" on which the trial was fought, or would have occasioned any unfair prejudice to the applicant. The fact that in discussion with counsel, his Honour may have expressed other thoughts is not to the point. All that matters is that the directions given by the trial judge were appropriate and fair. To my mind they were. I would refuse leave to raise this ground of appeal.
Ground 6
The law in relation to provocation is complex and difficult. The intellectual steps which a jury must take mean that there are difficulties for any judge seeking to explain the relevant concepts in a manner which a jury will understand. This is made more difficult when the accused does not raise the issue and accordingly cannot assist by identifying the conduct which is asserted to have provoked the criminal act.
Although the applicant did not raise the issue of provocation at her trial his Honour formed the view that the jury should receive directions in relation to it. As I have previously indicated during the course of the trial, the jury sought guidance on the differences between murder, manslaughter and the role of provocation. At that point his Honour told the jury that the applicant did not seek to raise provocation but asserted that she either, did not intend to kill the deceased, or if the jury found that she did, then she could establish the defence of substantial impairment.
At a later stage of the trial his Honour gave the jury a direction which indicated that the only issue in dispute in relation to murder was the matter of intention.
It was submitted that by the time of the summing up, having regard to the fact that his Honour believed it appropriate to give directions in relation to provocation, he should have told the jury to ignore his earlier remarks.
The trial judge gave the jury written directions with respect to provocation. He gave the jury the document and during the course of his oral directions read verbatim from it. No complaint is made to this Court about the content of the written directions. His Honour was careful to tell the jury that although it was not the applicant's case that she was provoked his Honour was obliged to direct them in relation to it.
To my mind there was no reason for his Honour to tell the jury to ignore his previous comments. It remained no part of the applicant's case that she had acted under provocation. Her counsel did not address the issue.
I am satisfied that the comments about which the applicant complains would not have been understood to suggest that there was any legal or evidentiary requirement placed on the applicant. They simply reminded the jury that in order to consider the question of provocation they must effectively disregard the applicant's version of the relevant events. His Honour made plain to the jury that the onus remained on the Crown to negative provocation beyond reasonable doubt.
Although his Honour found it necessary to give the jury instruction as to the law relating to provocation there was to my mind no event in the surrounding circumstances, or act of the deceased, or those with him, which could have caused the jury to have a doubt as to whether the applicant acted under provocation. For this reason it is strictly unnecessary to resolve the criticisms which have been advanced in respect of his Honour's directions. They could not have occasioned a miscarriage of justice. There could be no possibility of a jury finding that the conduct of the deceased or his friends could have induced an ordinary person in the position of the applicant to have so far lost self control as to have formed an intention to kill or to inflict grievous bodily harm on the deceased.
Nevertheless it is appropriate to consider the submissions which were made. It was submitted by the applicant that the directions which his Honour gave to the jury were flawed because amongst other reasons they invited the jury to reject the "partial defence" by stressing that the applicant did not herself say that she was provoked. Complaint is directed towards the following passages in the summing-up which the applicant extracted and included in the written submissions. I have set out below the passages as they were set out in these submissions:
"One of the issues that you have to look at I suppose and one of the things that makes it somewhat difficult, is that she doesn't say she was provoked. Her account is not that she was provoked and lost her self-control.
"... the accused says she wasn't provoked at all. The accused case is that she was frightened as a result of what happened in the laneway. She wasn't angry, she wasn't certainly wasn't provoked."
"you may wonder why I am telling you about provocation when in fact the accused says she wasn't provoked at all. The accused's case is that she was frightened as a result of what happened in the laneway. She wasn't angry, she wasn't, certainly wasn't provoked.
... I'm obliged to tell you the law on provocation even though that's not the defence case.
In her account the accused has not asserted that she was provoked, rather she says that she panicked and drove at the deceased ..."
A further criticism was made of these remarks. It was submitted that "insofar" as they suggested that there was some legal or evidentiary requirement that the applicant should say she was provoked, his Honour was wrong in law, and "at the very least" misleading.
I have no hesitation in rejecting these criticisms. As I have previously indicated the applicant never suggested that she was provoked and it was appropriate for his Honour to make plain to the jury the manner in which the applicant sought to raise her defence. Her counsel did not address on the issue although he did not oppose it being left to the jury by the trial judge. The written directions were settled with trial counsel and there was no objection raised to his Honour's oral directions.
The passages referred to by counsel for the applicant did not suggest that there was any legal or evidentiary requirement placed on the applicant. They did, as his Honour inevitably was required to do, tell the jury that in order to effectively consider the issue they would have to disregard the applicant's version of the events.
It was further submitted by the applicant to this Court that his Honour gave a number of directions which suggested a need for immediacy of reaction before provocation could be sustained. The passage to which counsel referred was part of his Honour's directions. The passage was as follows:
"Very often provocation cases occur almost instantaneously." Of course the longer the period between the conduct and the response the less it may be likely that conduct is the loss of self-control arising from the act of provocation. But it's one of the factors you take into account. For example, you might more readily find that she acted from a loss of self-control if she immediately got into the vehicle and drove at the people in the laneway and killed them there and then. I'm not suggesting you would or you wouldn't, it's just one of the relevant factors you take into account."
This formed part of a longer passage which in its entirety reads as follows:
"The next matter to consider is the severity of the provocative act and its effect upon the accused. There must be a possibility that the provocation actually caused the accused to lose her self-control and kill the deceased while deprived of her self-control.
I interject again. Very often provocation cases occur almost instantaneously. Somebody does something or says something to the accused and there's a loss of self-control because of the provocative at or the provocative conduct but there doesn 't have to be. Of course the longer the period between the conduct and the response the less may it be likely that conduct is a result of loss of self-control arising from the act of provocation. But it's one of the factors you take into account. For example, you might more readily find that she acted from a loss of self-control if she immediately got into the vehicle and drove at the people in the laneway and killed them there and then. I'm not suggesting you would or you wouldn't, it's just one of the relevant factors that you take into account in deciding whether the killing, that's what we 're looking at, the killing, was a result of the loss of self-control" (emphases added)
There is a further passage in the summing-up of relevance:
"I told you there are a number of ways upon which you can find the verdict of manslaughter, and it all depends upon what facts you find. One of the ways we just discussed is by finding that the accused may possibly have been acting under immediate provocation, in other words that the Crown hasn't satisfied you beyond reasonable doubt that if she intentionally drove at the deceased with the intention to kill him or do him grievous bodily harm that she was not at that time acting from a loss of reason as a result of provocation."
It is apparent that his Honour introduced the concepts of instantaneous or immediate response. However, he did this in order to assist the jury in understanding the nature of provocation in the criminal law. There may have been error if in the facts of the particular case, the introduction of those concepts may have diverted the jury from its task and excluded some of the circumstances of the alleged provocation from their consideration. However, that was not the position in this case. The relevant circumstances were confined in time and there was no possibility that the jury would have been misled into excluding the entirety of the encounter between the deceased, his friends and the applicant from their consideration of the issue of provocation.
It was further submitted that his Honour gave a wrong and misleading direction "on the need for a loss of self control by the applicant." In particular the applicant emphasised that his Honour told the jury that loss of self control is a "loss of ability to reason" or "loss of her normal ability to reason." Her counsel submitted that his Honour then drew a distinction between loss of self control and loss of temper without explaining how the jury might resolve the difference between the two states. It was submitted that anger is a reaction that can be accommodated within provocation. It was further submitted that his Honour failed to properly establish the distinction that the law draws between an intentional killing in an uncontrolled state induced by the deceased's provocative conduct and an intentional killing induced simply by revenge.
To my mind there is no substance in either submission. No doubt a person who loses their self control may be angry but his Honour correctly emphasised that anger alone is not enough. There must be, even in a person who has been provoked to anger, a loss of self control. Furthermore, there was no requirement for his Honour to embark upon a discussion which contrasted provocation with a killing motivated by revenge. There was no suggestion that the applicant acted from a desire to obtain revenge for any act of the deceased.
In the course of his oral directions his Honour spoke in terms of whether the provocation was such that it would cause the applicant to lose her self control. On two occasions when referring to the "ordinary person" test his Honour referred to "would cause".
There is no doubt upon the assumption that the transcript is an accurate record that his Honour slipped when using the word "would." His Honour told the jury on numerous occasions both in the written directions and orally that the test was whether the provocative conduct could have caused the applicant to lose self control. As it happens on the pages of transcript to which the applicant draws attention, his Honour also used the word "could." I am not persuaded that the two mistakes which his Honour made would have been of any significance to the jury. If there was any prospect that his Honour's slips could have caused them confusion they would undoubtedly have returned to the written directions to clear up any ambiguity. The jury's silence, they did not ask any questions about the issue, bears testament to the fact that they understood the test which they had to apply.
It was further submitted that his Honour erred by telling the jury that the law did not require that the reaction of the ordinary person had to be reasonable and failed to emphasise that the capacity for self control of that person had to be measured by reference to an ordinary person who had been provoked to the extent that the applicant had been provoked. It was submitted that both propositions were supported by the High Court's discussion of these issues in Green v The Queen (1996-97) 191 CLR 334 Brennan CJ at 346 and McHugh J at 371.
I do not accept the submission. I do not understand the High Court to have said that a trial judge is required to tell the jury that the reaction of the ordinary man did not necessarily have to be a reasonable one.
It was submitted that the trial judge gave incorrect directions on proportionality. It was submitted that the trial judge told the jury that the ordinary person test put a limit on its operation in respect to a particular accused by considering how an ordinary person might possibly have reacted to the provocative conduct as it affected the accused. It was further submitted that his Honour gave the jury unnecessary and confusing directions by making a part analogy with the law on self-defence, when his Honour said: "...it's a limit. It's a standard that the community bases, it says, right, we understand that people can act in self-defence, but there's only so far you can go, and how far you can go is how far the ordinary person in that situation would go."

Accordingly, there was no issue as to what effects the undisputed abnormality of mind might have had. The issue was whether it did operate on the morning in question. This was made clear by his Honour.
No issue was taken with the directions his Honour gave at the trial. I would refuse leave to raise this ground of appeal.
Ground 8
This ground of appeal is primarily concerned with the admission of evidence of the interview of the applicant at the police station after the incident. It was submitted that the applicant was both affected by alcohol and tired. It was further submitted that she was denied access to legal advice.
For these reasons it was submitted that, despite the fact that no objection was taken, his Honour should have rejected the whole or at least parts of the record of interview. Particular concern is expressed about the statement by the applicant when she said "I can get emotional and fight." His Honour reminded the jury of this evidence in his summing-up saying that "the Crown submits the simple explanation for her behaviour is her intoxication and that she is an aggressive drunk. The Crown says in effect she says so much in her record of interview."
Notwithstanding that objection was not taken, it was submitted that his Honour should have intervened in the interest of a fair trial for the applicant: Libke v The Queen (2007) 230 CLR 559 at 577 [35]; see also Shaw v The Queen (1952) 85 CLR 365 at 381; R v Chai [2002] NSWCCA 512.
To my mind this ground of appeal is without substance and leave to raise it should be refused.
It is not correct as the applicant submitted that "No access to a lawyer, or any form of legal advice was ever provided... The statement 'I, I really want to have a lawyer'" was made at A231. After the required questioning by an independent senior officer, the interview concluded at Q/A257. At the conclusion of page 26 it is noted "INTERVIEW RESUMED" and at p. 27 the time is noted as 1.54pm Saturday 7 June 2008.
Detective Harmer (the officer in charge) gave evidence that between the first and second interviews the applicant contacted and spoke with her solicitor "Mr Proctor". Detective Harmer also spoke with him and was told that the applicant did not wish to attend a "crime-scene walkthrough" but was willing to partake in "any further interview if we needed" and a forensic procedure later in the day. During the interval the police obtained the CCTV footage. The applicant's responses to that, together with her remarks which are complained of, followed the provision of legal advice to the applicant.
It was asserted that the trial judge, of his own motion, should have rejected "some or all of ... the Record of Interview" because it or they were inadmissible. Apart from a possible lack of sleep, the unchallenged evidence of Dr Allender was that by 1.54 pm on Saturday 7 June 2008 the applicant's level of blood alcohol reading would have been between 0.00 and 0.066 with the most likely level being 0.029 (grams of alcohol per one hundred millilitres of blood). Leaving that to one side there is nothing in the interview which could to my mind lead to the conclusion that in the circumstances of this case the admission of the evidence occasioned a miscarriage of justice. Clearly defence counsel did not believe that a successful objection could be formulated to its admission.
It is not part of a trial judge's function to go through an interview, offered by the accused as his/her sole version of events (ie in the absence of giving evidence) and pick and choose between its contents in the absence of objection.
Dr Allender was called by the Crown as an expert on the effects of alcohol and drugs. He was asked to and did comment on the CCTV footage of the passage of the applicant's vehicle with respect to the applicant's driving including whether it showed substantial impairment. He responded at T508 "not really. It struck me as somewhat predatory." No objection was taken to the question or the answer.
It was submitted that although the balance of Dr Allender's evidence was admitted as expert evidence, which it was accepted he was qualified to give, he was not qualified to give this opinion. He was not an expert on driving, nor on conclusions that might be drawn from looking at a few seconds of CCTV footage.
Sergeant Jenkins of the Crash Scene Investigation Unit gave evidence that with a blood alcohol reading of 0.145, persons are severely impaired in their driving ability. Despite there having been no objection raised by the Crown and the evidence being part of his report provided by the Crown to the defence the trial judge rejected it.
It was submitted that absent an objection by the Crown the evidence should not have been rejected by the trial judge. It was submitted that there was an inexplicable contrast between how this evidence and that of the ERISP were dealt with.
To my mind Dr Allender was not qualified to give the opinion and the question and answer should not have been allowed. However, objection was not taken. If it had been it would have inevitably highlighted the sensitivity of the issues and probably emphasised that the CCTV was damming of any prospect of the applicant being found not guilty of murder. The CCTV footage is powerful if not overwhelming evidence that the applicant having once driven at the deceased, reversed, and then returned to deliberately target him with the motor vehicle. Although it should not have been admitted, the evidence from the CCTV footage was so compelling that Dr Allender's evidence added little if anything to the conclusion which the jury must have drawn for themselves when viewing the film.
His Honour rejected the evidence of Sergeant Jenkins, concluding that he was not qualified to express the opinion. Nothing has been put before this Court to indicate that his Honour's decision was not correct. Furthermore, Dr Allender gave evidence in which he clearly stated that he would have expected significant impairment of the applicant's condition "due to alcohol, and exacerbated by cannabis to have been present at the time of the incident."
Ground 9
It was submitted that the failure of counsel to object to the asserted error in the summing-up or to take appropriate objection was a result of the incompetent representation of the applicant by trial counsel denying her a fair chance of an acquittal. Apart from the fact that the asserted errors in the trial are without substance the essential inquiry is not whether trial counsel was incompetent but rather whether the asserted defect or irregularity has occasioned a miscarriage of justice: TKWJ v The Queen at [25]-[27].
As I have made plain I am not persuaded that by reason of any of the asserted failures to take objection either to the admission of evidence, or to raise issues with the summing-up, the applicant lost the fair chance of acquittal. I would refuse leave to raise this ground of appeal.
The Proviso
Even if his Honour had made an error of any significance I am entirely satisfied that there has been no substantial miscarriage of justice so that the Court should apply the proviso under s 6(l) Criminal Appeal Act 1912.
The single most important piece of evidence was the CCTV footage. It showed the car, which the applicant was driving the wrong way in Lithgow Street, cross the kerb and move onto the driveway of an industrial building, heading directly toward the deceased and his companions.
The deceased managed to jump out of the way after the car hit him in the legs. He then appeared to stand (with Stuart Taylor) behind the skip, bins which were situated just to the north of the driveway. Although not visible on the CCTV footage the applicant must have then reversed the car. Its headlights can be seen as the car straightened up on the right and remained stationary for a short period.
At this time the deceased (and Stuart Taylor) were starting to walk together down Lithgow Street again. The car was then driven straight up over the grass verge and onto the footpath and again without deviation headed directly at the deceased, knocking him down onto the steps leading to the gymnasium and finally landing on top of him.
The expert evidence (from the police officers) was to the effect that there was no mechanical defect or failure in the vehicle which could have been a contributing factor. Although the CCTV footage does not enable a viewer to see what was happening inside the car, the vehicle's movements do not suggest, as the applicant suggested, that her passenger grabbed the steering wheel or that her foot jammed on the accelerator. The car's movements were direct and continuous. There are two occasions when the vehicle was headed for the deceased. The inevitable conclusion is that the applicant intended to drive at the deceased and his companions. Officer Simon Parker, a collision reconstruction expert, calculated that the vehicle must have travelled across the footpath at a speed of 27 kilometres per hour. There was no indication of deceleration before the collision or any attempt to avoid the accident. The sequence of events captured in the CCTV footage allows only the conclusion that the applicant deliberately drove at the deceased.
This evidence, combined with that of the events in Christie Lane shortly beforehand which, on any version other than the applicant's, caused her to react aggressively, undoubtedly lead to the conclusion that she at least intended to inflict grievous bodily harm on the deceased. On all the evidence presented, including that of the psychiatrists, the jury was entitled to find that the Crown had negatived provocation and the applicant had failed to establish "substantial impairment". I have reached the same conclusion..
Sentence
The applicant seeks leave to raise six grounds of appeal in relation to her sentence. Ground one is best dealt with after the other grounds have been considered.
Ground Two: The sentencing judge erred in finding that the offence was in the mid-range of offending.
The sentencing judge was of the opinion that the offence committed by the applicant was in the mid-range of offending. His Honour said that he made this finding "despite the fact that I am prepared to sentence her on the basis of an intention to inflict grievous bodily harm rather than an intention to kill. It was an intention to inflict very serious injury and the risk of death was very high."
His Honour said that the only matter of mitigation was the applicant's remorse. His Honour said that the applicant almost immediately regretted her actions and had continued thereafter to express her remorse.
The applicant submitted that his Honour's finding that the offence was in the mid-range was inconsistent with the fact that his Honour found that the applicant did not intend to kill and that the offence was impulsive and was otherwise inconsistent with the circumstances of the offence.
In the course of his remarks on sentence his Honour said when discussing the seriousness of the offence, that the typical case of murder coming before the Supreme Court is probably lower than mid range. He said that:
"These tend to be domestic killings usually in the heat of the moment and often fuelled by alcohol. This offence seems to be more serious than that. Very few murders are planned although they may occur in the course of planned activities. Those where the killing is planned would almost inevitably be well above mid range."
His Honour concluded that the offence was more serious than the typical cases because it was not an instantaneous reaction to the events in the lane.
This finding of his Honour was criticised, it being submitted that as the events occurred in a short time frame his Honour's finding was not open.
Other criticisms were made of his Honour's reasoning including his Honour's findings that; there was the use of a weapon of a dangerous kind; it involved a grave risk of injury or death to another person; there was little difference between an intention to kill and an intention to inflict grievous bodily harm; the applicant's past offending was all the result of alcohol was seen as an aggravating factor; his Honour ignored or rejected any effect of provocation.
Before an offender may successfully challenge a finding as to the range within which an offence should be assessed it is necessary to establish that the finding which the sentencing judge made was not open to him. The evaluation of the seriousness of an offence is a matter for the sentencing judge and only if there is some error of principle can this Court intervene: House v The King (1936) HCA 40; 55 CLR 499 at 505.
To my mind the submission which the applicant makes in support of this ground of appeal cannot be sustained.
It is not necessary that there be an intention to kill and premeditation before an offence could be viewed as within the middle range of offending.
I can discern no error in his Honour's finding that the offence was not an instantaneous reaction to events in the lane. After those events the applicant returned to the driver's seat, turned left the wrong way into a one way street and drove straight at the deceased. On this occasion he managed to jump out of the way of the car after it hit him on the leg. She then reversed the vehicle and after some time, and when the deceased was again walking down the footpath, she drove the car directly at him.
In relation to the car being a weapon to my mind his Honour was entitled to make this finding. Many cases of murder involve the use of a weapon although this is not exclusively the case. In many cases the weapon is a household implement or a gun but not a motor vehicle. When used as a weapon a motor vehicle is properly described as a weapon of a "particularly dangerous kind."
To my mind the finding that the offence was aggravated by the fact that it involved a grave risk of injury or death to another person was clearly open to his Honour. Jesse Horn gave evidence that the vehicle struck him on his right knee and caused him to be flipped over and land on the grass. His Honour said "he was fortunate not to be killed or more seriously injured."
I am also satisfied that his Honour's finding that there was little or no provocation was open to him having regard to the factual findings which his Honour made.
Accordingly, I am not persuaded that his Honour erred in the finding that the offence fell within the mid-range of offending. That finding was open.
Ground 3: The sentencing judge erred in finding that the applicant being under the influence of alcohol did not diminish her culpability
In his remarks on sentence the sentencing judge detailed the applicant's history of offending when intoxicated. His Honour accepted the evidence of Dr Allnutt that the applicant's mental disorder had nothing to do with her offending. She was not suffering from mania at the time. His Honour found however, that "she is simply aggressive when under the influence of alcohol. She was aware that whenever she is under the influence of alcohol she is likely to act in an impulsive, aggressive manner to people or things that irritate her."
This Court has previously indicated that even in circumstances of offending against adult victims, voluntary intoxication rarely operates to mitigate penalty: R v GWM [2012] NSWCCA 240 [78].
With respect to provocation it is apparent that the jury were in no doubt that the applicant was not provoked for the purposes of a finding of murder. When sentencing, the trial judge was required to make findings of fact which were not inconsistent with the jury's verdict. His Honour did this by finding that there was no provocation, or if there was, it was of a minor nature and out of proportion to the consequences of the act and could not mitigate the offence. It is plain that this finding was open to his Honour.
In the present case the sentencing judge found that the fact that the applicant was under the influence of alcohol was not related to the offence so as to diminish her culpability. The applicant submitted that this finding was not open as his Honour could not be satisfied that it was consistent with the jury's verdict. It was further submitted that the finding was incorrect and contradicted the weight of the evidence, the way the Crown presented its case, the established circumstances of the offence, and the trial judge's summing up to the jury. It was submitted that the Crown case was opened on the basis that the applicant was highly intoxicated at the time and the evidence indicated that alcohol was likely to have had an impact upon the applicant. The Crown relied upon her intoxication in submitting to the jury that the evidence demonstrated that when intoxicated the applicant became an aggressive drunk.
It was submitted that the finding by his Honour ignored the opinion of Dr Allender who said that he believed that at the time of driving the applicant was under the combined influence of alcohol and cannabis, and her driving ability would have been substantially impaired. It was also submitted that the finding ignored the opinion of Dr Allnutt when he said that "the most significant factor was the disinhibiting effect of intoxication caused by the combined effects of alcohol, cannabis and benzodiazepines and her emotional response and the interaction that produced."
It was further submitted that the applicant's statement to the police that she could become aggressive when drunk was irrelevant and that the only issue was the actual effect of alcohol upon her in the present case. It was submitted that she did not have any history of committing acts involving aggression while drunk with a motor vehicle.
Finally, it was submitted that the applicant's intoxication should have been found to have been relevant and have been taken into account to mitigate the objective criminality of the offence and indicate that the conduct was impulsive and unplanned. It was further submitted that it was relevant to explain the context of the crime and informed the impulsive nature of the applicant's actions.
I am not persuaded that the applicant's culpability in running down the deceased in the motor vehicle could be diminished by the fact that she committed the offence while intoxicated with a mid-range prescribed concentration of alcohol. His Honour's finding that the applicant's offending was not a consequence of a mental disorder but resulted from her tendency to aggression when under the influence of alcohol was clearly open. The applicant said as much. The circumstances of the offence confirmed the applicant's assessment of her own response to significant consumption of alcohol. Rather than being a mitigating factor, the applicant, being aware of the disinhibiting effect of alcohol upon her, nevertheless chose to drive while under the influence of alcohol and drugs. Rather than being a matter of mitigation it would have been open to his Honour to conclude that it was an aggravating feature. The finding that it did not diminish her culpability was clearly open and no error has been demonstrated.
Ground 4: The sentencing judge erred in making no allowance for the offender's mental condition
The sentencing judge rejected any direct association between the offender's mental disabilities and the commission of the offence. His Honour found that the applicant's mental disorder had nothing to do with her offending and in no way diminished her culpability.
It was submitted that this finding was not open and that his Honour could not be satisfied that it was consistent with the jury's verdict. Furthermore, there were competing versions presented by the experts. It was submitted that his Honour reflected these differences in his instructions to the jury.
There is a fundamental difficulty with the applicant's submissions. Although a trial juge is bound to find the facts relevant to the sentencing of an offender, the constraint is upon a finding of fact which is inconsistent with the jury's verdict. It is not the case that the finding must be one which the judge is certain reflects the jury's thinking.

In relation to this ground of appeal it was necessary for the applicant to demonstrate error in the approach taken by the trial judge. The presence of a mental condition or disorder may bear upon the question of sentence: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. However, as Gleeson CJ observed in R v Engert (1995) 84 A Crim R 67 at 68, "it is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances." See the discussion of this issue by Johnson J in Beldon v R [2012] NSWCCA 194.
The sentencing judge gave careful consideration to the impact of the applicant's mental illness when determining the appropriate sentence. He accepted the evidence of Dr Allnutt and found that her mental illness was not causally connected with the offending. His Honour was entitled to accept that evidence in preference to that of Dr Roberts where there was disagreement. His Honour found that there was no evidence before him that the applicant's mental disorder would make her time in prison more onerous and that it did not negate or diminish general deterrence to any significant degree.
In these circumstances I am not persuaded that his Honour's approach to the issue of mental illness was erroneous. His Honour made findings which were clearly not inconsistent with the jury's verdict, were open and no error can be demonstrated.
Ground 5: The sentencing judge erred in his approach to the standard non-parole period
The applicant accepts that the sentencing judge approached the issue of the standard non-parole period in the manner approved by this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 which was found to be erroneous in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. It was further submitted that his Honour adopted a stepped approach commencing with an assessment as to whether the offence was in the mid range of objective seriousness. It was further submitted that he gave primacy or determinative significance to that matter and impermissibly took into account the characteristics of the applicant in his initial assessment of the offence being in the middle range of objective seriousness.
Although the respondent accepts that his Honour approached the matter in a manner inconsistent with Muldrock, which was decided after his Honour passed sentence, I am not persuaded that his Honour impermissibly had regard to the characteristics of the offender in his initial assessment of the offence as being within the middle range of objective seriousness. His Honour carefully stated his reasons for finding the offence fell within the mid-range of offending. None of the matters that he referred to involved the subjective circumstances of the applicant.
Notwithstanding that his Honour approached the sentencing exercise in accordance with Way, I am not persuaded that his Honour has otherwise imposed a sentence which was other than appropriate in all the circumstances.
Ground 6: The sentencing judge erred in rejecting special circumstances.
Before the sentencing judge, defence counsel submitted that special circumstances should be found on the basis that this was the applicant's first significant period of custody and because she had mental health and alcohol abuse issues. He did not suggest that the applicant's background and her remorse could give rise to such a finding.
The sentencing judge declined to find special circumstances and indicated that in his view the applicant would have ample time on parole for her to receive whatever assistance she might require when released from custody. It was submitted that this was an error because his Honour had impermissibly confined the matters of relevance to a finding of special circumstances.
The applicant submitted that the special circumstances relating to the applicant included her background, her mental disabilities, her remorse and the fact that she would be in custody for the first time.
I am not persuaded that his Honour has erred. Although there may be many circumstances which could inform a finding of special circumstances this Court will be slow to review the findings of a sentencing judge on this issue. Where, as in the present case, the foundation which is advanced for a finding of special circumstances in this Court was not advanced in the court below the likelihood of this Court intervening is remote: Aslett v R [2012] NSWCCA 235.
Although the background of an applicant and any mental disability may inform a finding of special circumstances, issues of remorse would rarely inform a finding of special circumstances. Remorse may be reflected in the sentence which the court imposes but will rarely be a special circumstance. With respect to the submission that the first time in custody is a special circumstance, this issue has been recently considered on a number of occasions. In Collier v R [2012] NSWCCA 213, I said:
"It was submitted to this Court that the applicant, being almost 50 years of age and facing her first time in custody with good prospects of rehabilitation, should have been given the benefit of a finding of special circumstances.
Inherent in this submission appears to be a misunderstanding of the role of special circumstances when sentencing. A finding of special circumstances is appropriate and relevant to a decision by a sentencing judge as to whether to depart from the statutory ratio between the non-parole period and the overall sentence. The authorities are replete with findings by sentencing judges and by this Court of special circumstances. When an offender's history of offending or personal circumstances indicate that he or she would benefit from an extended period of supervision within the community a finding of special circumstances may be appropriate. For my part, as I said in R v Clark [2009] NSWCCA 49 at [12], I have considerable reservations about whether the fact that a person will be in custody for the first time is capable of constituting special circumstances: see also R v Kama [2000] NSWCCA 23; (2000) 110 A Crim 47 at [10]. The fact that a person has no previous criminal record and, accordingly, has not previously been incarcerated is a matter relevant to the total sentence and non-parole period. However, it is unlikely to be a circumstance warranting further leniency to an offender by a reduction in the term of the non-parole period: R v Fidow [2004] NSWCCA 172 at [18] (Spigelman CJ). Many persons who are sentenced will receive a sentence of imprisonment for the first time. That fact alone is unlikely to justify a finding that the offender's circumstances are special."
Whether or not to make a finding of special circumstances was entirely the province of the sentencing judge. Where as in this case a lengthy period on parole is inevitable, a finding that special circumstances could justify a reduction in the non-parole period is unlikely. His Honour did not err by rejecting a finding of special circumstances.
Ground 1: The sentence was unduly harsh and severe
As I understand this ground it is more appropriately expressed as a submission that the sentence was manifestly excessive. The capacity for this Court to respond to such a submission is limited. It is not sufficient that this Court may be of the view it would itself have imposed a different sentence. Intervention is only warranted if error can be demonstrated.
I have previously discussed the circumstances of the offence and the personal circumstances of the applicant. The taking of a young person's life by deliberately running him down with a motor vehicle which the applicant was driving whilst significantly intoxicated and under the influence of drugs required a significant sentence. Having regard to the fact that the Parliament has provided that the offence of murder caries a maximum penalty of life imprisonment the sentence which his Honour imposed was entirely within the range available to him. I am not persuaded that there is any error in the manner in which his Honour approached the sentence or that the sentence was relevantly excessive.
Although I would grant leave to appeal against sentence I would dismiss the appeal.
Orders
1. Refuse leave to appeal the conviction except for Ground 6.
2. Grant leave to raise Ground 6 of the appeal but dismiss that ground.
3. Grant leave to appeal against sentence and dismiss that appeal.
LATHAM J: I agree with McClellan CJ at CL.
ADAMSON J: I agree with McClellan CJ at CL.
**********

Case Title:	Ward v R
Medium Neutral Citation:	[2013] NSWCCA 46
Hearing Date(s):	14 December 2012
Decision Date:	01 March 2013
Before:	McClellan JA at [1] Latham J at [246] Adamson J at [247]
Decision:	1. Refuse leave to appeal the conviction except for Ground 6. 2. Grant leave to raise Ground 6 of the appeal but dismiss that ground. 3. Grant leave to appeal against sentence and dismiss that appeal.
Catchwords:	CRIMINAL LAW - application for leave to appeal against conviction - murder - direction on standard of proof - direction regarding rejected plea to manslaughter - direction on intoxication and intent - direction on provocation - direction on substantial impairment CRIMINAL LAW - application for leave to appeal against sentence - whether offence was mid range - effect of intoxication and culpability on sentence - approach to standard non-parole period after Muldrock v The Queen [2011] HCA 39; 224 CLR 120 - applicability of special circumstances.
Legislation Cited:	Criminal Appeal Rules Criminal Appeal Act 1912
Cases Cited:	Aslett v R [2012] NSWCCA 235 Beldon v R [2012] NSWCCA 194 Collier v R [2012] NSWCCA 213 Darwiche & Ors v R [2011] NSWCCA 62 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Edwards v R [2009] NSWCCA 199 FP v R [2012] NSWCCA 182 Green v R (1971) 126 CLR 28 Green v The Queen (1996-97) 191 CLR 334 House v The King (1936) HCA 40; 55 CLR 499 Libke v The Queen (2007) 230 CLR 559 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Ng v R [2011] NSWCCA 227 Papakosmos v R [1999] HCA 37; (1999) 196 CLR 297 R Margach [2007] VSCA 110 R v Bellchambers [2008] NSWCCA 235 R v Camplin [1978] AC 705 R v Chai [2002] NSWCCA 512 R v Cheatham [2002] NSWCCA 360 R v Croft [1981] 1 NSWLR 126 R v Engert (1995) 84 A Crim R 67 R v Garlick [1981] 72 Cr App R 291 R v Gieselmann (Unreported, NSWCCA, 12 November 1996) R v GWM [2012] NSWCCA 240 R v Hazeltine [1967] 2 QB 857; 51 Crim App R 351 R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 R v Makisi [2004] NSWCCA 333 R v McGregor-Reid [1999] Crim LR 860 R v McKeown [2006] VSCA 74 R v Page [2008] VSCA 54 R v Picken [2007] NSWCCA 319 R v Ryan (1995) 90 A Crim R 191 R v Tripodina (1998) 35 A Crim R 183 at 195 R v Viro (1978) 141 CLR 88 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Yeardley [2000] 2 Crim App R 14 RWB v R [2010] NSWCCA 147 Shaw v The Queen (1952) 85 CLR 365 Teckley v R; Nagle v R [2007] NSWCCA 75 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 Van den Hoek v The Queen (1986) 1 61 CLR 158
Category:	Principal judgment
Parties:	Sarah May Ward (Applicant) Crown
Representation
- Counsel:	Counsel: M Ramage QC (Applicant) M Cinque (Crown)
- Solicitors:	Solicitors: Jeffreys Lawyers (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2009/11037
Decision Under Appeal
- Before:	Howie J
- Date of Decision:	22 April 2010
- Citation:	[2010] NSWSC 304
- Court File Number(s):	2009/11037