Rummukainen v R [2021] NSWCCA 188

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Rummukainen v R [2021] NSWCCA 188 Hearing dates: 3 May 2021 Date of orders: 11 August 2021 Decision date: 11 August 2021 Before: Simpson AJA at [1] Garling J at [66] N Adams J at [78] Decision: 1. The time in which to seek leave to appeal is extended to 28 October 2020; 2. Leave to appeal against conviction granted; 3. The appeal is dismissed. Catchwords: CRIME – driving offences – dangerous driving occasioning death – vehicle driven by applicant crossed unbroken centre line on country road and collided with vehicle travelling in opposite direction – driver of second vehicle died in collision – no evidence that applicant fell asleep – possibility of sleep raised for first time in defence counsel's final address – whether defence of honest and reasonable mistake of fact that applicant believed he was fit to drive raised – trial judge directed jury to disregard submission – whether sleep possibility should have been left to jury – whether defence reasonably open on evidence – possibility that applicant fell asleep was a remote theoretical one – unfounded in any evidence – trial judge correct to decline to leave defence to jury CRIMINAL PROCEDURE – trial – closing address to jury by accused person – raising of defence for first time during closing – s 160 Criminal Procedure Act 1986 (NSW) – sub-s (2) could not have been used to permit Crown supplementary address – very late introduction of concept of defence apt to create unfairness to Crown – observations about need for criminal trial to be fair to both parties Legislation Cited: Crimes (Amendment) Act 1983 (NSW), Sch 4(2) Crimes Act 1900 (NSW), s 52A Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6 Criminal Procedure Act 1986 (NSW), s 160 Cases Cited: Alford v Magee (1952) 85 CLR 437; [1952] HCA 3 Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14 CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14 McBride v The Queen (1966) 115 CLR 44; [1966] HCA 22 Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28 R v Birks (1990) 19 NSWLR 677 R v Clarke (1995) 78 A Crim R 226 R v Coventry (1938) 59 CLR 633; [1938] HCA 31 R v Glusheski (1986) 33 A Crim R 193 R v O'Donoghue (1988) 34 A Crim R 397 R v Youssef (1990) 50 A Crim R 1 Rummukainen v R [2020] NSWCCA 187 The Queen v Khazaal (2012) 246 CLR 601; [2012] HCA 26 Category: Principal judgment Parties: Risto Petteri Rummukainen (Applicant) The Crown Representation: Counsel: P Coady/S Gaussen (Applicant) B Baker (Crown)