Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Haynes v R [2024] NSWCCA 12 Hearing dates: 9 February 2024 Decision date: 21 February 2024 Before: Adamson JA at [1]; Lonergan J at [85]; Sweeney J at [86] Decision: (1) Grant leave to appeal. (2) Appeal dismissed. Catchwords: CRIME — appeals — appeal against conviction — alleged unreasonable verdicts in judge-alone trial — whether it was open to the trial judge to be satisfied beyond reasonable doubt that the applicant engaged in dangerous driving CRIME — driving offences — dangerous driving occasioning death and grievous bodily harm — truck driver experienced potential trigger for vasovagal syncope when stopped at the lights — put the vehicle in motion before losing consciousness — history of vasovagal syncope — whether applicant had sufficient warning of oncoming loss of conscious such that driving was dangerous — whether applicant's loss of consciousness was caused by pre-existing medical condition (vasovagal syncope) or a pulmonary embolism Legislation Cited: Crimes Act 1900 (NSW), ss 52A, 53 Criminal Appeal Act 1912 (NSW), s 5 Criminal Procedure Act 1996 (NSW), s 133 Cases Cited: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Gillett v R [2006] NSWCCA 370; (2006) 166 A Crim R 419 Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14 King v The Queen (2012) 245 CLR 588; [2012] HCA 24 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 McBride v The Queen (1966) 115 CLR 44; [1966] HCA 22 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Parker v R [2023] NSWCCA 234; (2023) 105 MVR 337 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 Reyne (a pseudonym) v R [2022] NSWCCA 201 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 Category: Principal judgment Parties: Daniel Haynes (Applicant) Rex (Respondent) Representation: Counsel: I Todd (Applicant) E Nicholson (Respondent) Solicitors: Joshua Blom Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2020/104805 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 28 February 2022 Before: Gartelmann SC DCJ File Number(s): 2020/104805 HEADNOTE [This headnote is not to be read as part of the judgment] Daniel Haynes (the applicant) sought leave to appeal against his convictions for three offences of which he was convicted on 28 February 2022 following a trial by judge alone conducted by Gartelmann SC DCJ (the trial judge). Those offences are dangerous driving occasioning death (s 52A(1)(c) of the Crimes Act 1900 (NSW)), dangerous driving occasioning grievous bodily harm (Crimes Act, s 52A(3)(c)) and misconduct whilst in charge of a vehicle causing bodily harm (Crimes Act, s 53). The offences were alleged to have been committed at about 7.45am on 12 December 2018, when the applicant was driving a truck which pulled a heavily loaded trailer along Botany Road, Alexandria. Whilst stopped at traffic lights, the applicant felt a sharp stomach pain. When the lights turned green, he drove for 20-45 seconds before losing consciousness. The truck consequentially veered across the centre line of Botany Road and into the oncoming lanes before going up onto the kerb where the impact killed one pedestrian, seriously injured another and injured a third. The applicant, who has a history of vasovagal syncope (brief losses of consciousness which are triggered by certain stimuli), had previously experienced losses of consciousness associated with abdominal pain. The shortest time period between the applicant experiencing a trigger and his loss of consciousness was in 2017 when the applicant lost consciousness within 3-4 minutes of donating plasma. Professor Ernest Somerville, a neurologist specialising in epilepsy, opined that the cause of the applicant's loss of consciousness on 12 December 2018 was a syncope. At trial, the applicant's counsel put to Professor Somerville that it was possible that the loss of consciousness was caused by pulmonary embolism. The witness rejected that hypothesis as "highly unlikely" although he ultimately accepted that it was "possible". The trial judge accepted that the applicant's loss of consciousness was caused by syncope and, because the applicant had experienced a trigger yet continued driving before losing consciousness, he had objectively engaged in dangerous driving. The sole ground of appeal was that the trial judge's verdicts were unreasonable and could not be supported having regard to the evidence. The applicant contended that it was not open to the trial judge to be satisfied beyond reasonable doubt that the applicant's driving was objectively dangerous as the Crown had not excluded two hypotheses consistent with innocence: (1) that the applicant's loss of consciousness was caused by a pulmonary embolism (the pulmonary embolism hypothesis); or (2) even if the applicant lost consciousness due to a syncope, it was not objectively dangerous for him to drive after experiencing abdominal pain because he had not previously lost consciousness such a short period of time after the trigger event (the time period hypothesis). The Court held (Adamson JA, Lonergan and Sweeney JJ agreeing) dismissing the appeal: The pulmonary embolism hypothesis (1) While the reasons of the trial judge must be treated with circumspection, the trial judge's description of the way in which Professor Somerville gave evidence (his tone and body language) can be used to infer the content of Professor Somerville's evidence. The trial judge explained, it "was clear from the manner Professor Somerville gave this evidence that he considered the [pulmonary embolism] hypothesis highly unrealistic": [65], [74] (Adamson JA), [85] (Lonergan J), [86] (Sweeney J). (2) The whole of the evidence, including the trial judge's advantage in seeing and hearing Professor Somerville giving evidence, does not raise a doubt that all reasonable hypotheses consistent with innocence were excluded: [75] (Adamson JA), [85] (Lonergan J), [86] (Sweeney J). The time period hypothesis (1) Considering the momentum of the truck, the presence of other road users, the configuration of the road and the unpredictability of the time between a syncopal trigger and the loss of consciousness, the applicant's actions in setting the truck in motion after experiencing the trigger (abdominal pain) subjected others to a significantly greater level of risk than that ordinarily associated with driving a motor vehicle and was dangerous: [80]-[81] (Adamson JA), [85] (Lonergan J), [86] (Sweeney J). JUDGMENT 1. ADAMSON JA: Daniel Haynes (the applicant) seeks leave to appeal against his convictions for three offences of which he was convicted on 28 February 2022 following a trial by judge alone conducted by Gartelmann SC DCJ (the trial judge). Those offences are: 1. count 1: dangerous driving occasioning death (s 52A(1)(c) of the Crimes Act 1900 (NSW)); 2. count 2: dangerous driving occasioning grievous bodily harm (s 52A(3)(c) of the Crimes Act); and 3. count 3: misconduct whilst in charge of a vehicle causing bodily harm (s 53 of the Crimes Act). 1. The offences were alleged to have been committed in the following circumstances. The applicant was driving a truck which pulled a heavily loaded trailer along Botany Road, Alexandria. He stopped at the traffic lights at the intersection with O'Riordan Street. He felt stomach pain before setting off from the lights when they turned to green. He drove some distance before losing consciousness. The truck veered across the centre line of Botany Road and into the oncoming lanes before going up onto the kerb where the impact killed one pedestrian, seriously injured another and injured a third. He regained consciousness after the truck had come to a stop, its momentum having been extinguished by its several collisions. 2. The sole ground of appeal is that the verdicts were unreasonable and could not be supported having regard to the evidence. Leave to appeal is required as this ground does not involve a question of law alone: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). For the reasons which follow I am not satisfied that the verdicts were unreasonable. The relevant principles Where a ground of unreasonable verdict is raised 1. When a verdict is alleged to be unreasonable, this Court is required to review the whole of the evidence at the trial to determine whether it was open to the tribunal of fact, whether trial judge (as in the present case) or jury, properly instructed and acting reasonably, to be satisfied of the applicant's guilt on each charge beyond reasonable doubt: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (Dansie). The question, put another way, is whether it was "not reasonably open" to the tribunal of fact to be satisfied beyond reasonable doubt of the commission of the offence: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). 2. The principal issue at trial and the sole issue on appeal is whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the applicant engaged in dangerous driving. 3. Where, as in the present case, an unreasonable verdict ground is raised in a judge-alone trial, the principles are, as confirmed in Dansie: 1. this Court is to determine for itself whether the evidence was sufficient, both in nature and quality, to exclude any reasonable doubt that the applicant is guilty ([7]); 2. this Court's function does not require it to determine whether there was error in the factual findings on which the trial judge relied in finding the accused guilty of the offence tried ([7]); 3. the trial judge's reasons must be approached with circumspection so that they do not distract this Court from the independent assessment of the evidence which it is required to perform ([16]); 4. however, this Court is entitled to treat findings of fact about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings ([16]); and 5. if this Court is not satisfied, on the whole of the evidence, of the guilt of the applicant, the Court must ask itself whether the trial judge's absence of reasonable doubt could be attributed to some identified advantage enjoyed by the trial judge in seeing and hearing the witnesses give evidence ([38]). 1. Further, the "bare possibility" of innocence is not sufficient if the inference of guilt is the only inference reasonably open on the evidence. For a hypothesis consistent with innocence to be reasonable, it must be based on something more than "mere conjecture". The evidence must be looked at as a whole and not in a piecemeal fashion, either at trial or in this Court: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46]-[48]. The meaning of dangerous driving in the offences charged 1. The offence of dangerous driving occasioning death is committed where there is, objectively, a quality in the "manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous": McBride v The Queen (1966) 115 CLR 44 at 49 (Barwick CJ); [1966] HCA 22; see also Gillett v R [2006] NSWCCA 370 at [27]; (2006) 166 A Crim R 419. The test is objective and requires the prosecution to prove that the applicant's driving subjected another person or persons to a level of risk greater than that ordinarily associated with the driving of a motor vehicle: Jiminez v The Queen (1992) 173 CLR 572 at 579; [1992] HCA 14; King v The Queen (2012) 245 CLR 588; [2012] HCA 24 at [34]; Parker v R [2023] NSWCCA 234; (2023) 105 MVR 337 at [39]. The manner of driving must be a serious breach of the proper conduct of a vehicle on a roadway, such as to be in a real sense potentially dangerous to others who may be upon, or in the vicinity of, the roadway: McBride v The Queen at 49-50. 2. The question of whether driving is dangerous is quintessentially one for the tribunal of fact and involves matters of degree and judgment: Reyne (a pseudonym) v R [2022] NSWCCA 201 (Reyne) at [106]-[108] (Dhanji J, Beech-Jones CJ at CL and Yehia J agreeing). The relevant question for this Court is whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the applicant's driving in the circumstances set out below was objectively dangerous: Reyne at [106]. In determining this question, regard must be had to the constitutional role of the jury (or in this case the tribunal of fact) in determining a matter which involves a question of degree: Reyne at [106]. The reason the same regard must be had to the constitutional role of the trial judge as the tribunal of fact in a judge-alone trial is, as Dhanji J explained in Reyne at [112], because this is the effect of s 133(1) of the Criminal Procedure Act 1996 (NSW) which requires a judge's finding of guilt to be treated as if it were the same as a jury's finding of guilt: see also Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [11]. The trial 1. The basis on which it is said that the verdicts were unreasonable is confined to the issue of whether the applicant engaged in dangerous driving. However, in order to address this question and because of the need to look at the evidence as a whole, it is necessary to set out the evidence of the circumstances of the collision, the medical evidence and the expert evidence given by Professor Somerville. The Crown case Agreed or uncontroverted facts The trajectory of the truck 1. The applicant, a truck driver, started work at 6.15am on 12 December 2018 at the Austral Masonry Depot at Prospect. He was directed to drive a truck to which a trailer was attached, to Rosebery. The trailer carried a load of 24 tonnes of bricks. At about 7.45am, the applicant was in the driver's seat of the truck, which was stopped at traffic lights on the corner of Botany Road and O'Riordan Street, Alexandria in the kerbside lane of two lanes heading in a southerly direction on Botany Road. Traffic on Botany Road at this location was subject to a speed limit of 50kph. When the lights changed to green, the truck moved off and drove for about 20-45 seconds. 2. Uncontroverted evidence (in the form of DASHCAM footage) showed that the truck veered into the two oncoming undivided lanes and up onto the opposite kerb, onto a concrete pedestrian footpath, where it collided with a street sign, the lower portion of which became trapped under the truck. The truck finally came to rest further down Botany Road past the intersection with O'Riordan Street, facing in a south-westerly direction. It was agreed that the truck hit and killed Khristiee Aravena (count 1), hit and caused grievous bodily harm to Tenisha Carter (count 2) and hit and caused bodily harm to Maria Tamayo (count 3). The truck also collided with an empty brick building at 338 Botany Road and a white van. The force of the collision did not cause the load on the truck to become displaced. 3. There were no skid marks on either the north or southbound lanes of Botany Road, from which Leading Senior Constable Brett Hobbins inferred that there were no emergency braking applications sufficient to lock both tyres and that the inability of the applicant to stop the vehicle in these circumstances was "indicative of no driver input during the collision sequence". 4. The truck had five separate impacts. It first hit the traffic control light pole before colliding with a large wooden power pole which was connected to overhead electrical wiring that connected premises on Botany Road with electricity. The impact caused the power pole to break off at the base and be pushed forward in the truck's direction of travel. The third impact was between the front offside of the truck, the empty brick building at 338 Botany Road and Ms Aravena. The impact with the building caused significant damage and deformity to the cabin of the truck, as well as to the truck's wheel rim and suspension assembly. Following the impact with the building, the truck continued to travel along the footpath, turning slightly to the left away from the building. It travelled another 28m southwards along the northbound lanes of Botany Road (against the direction of travel). 5. The truck's fourth impact was during this course of travel, when the truck collided with the overhead traffic light pole at the intersection of Botany Road and Geddes Avenue on the western side of Botany Road. This pole became trapped under the truck and ultimately brought the truck to a halt. The fifth impact occurred when the offside of the rigid component of the truck collided with the front nearside of a Toyota HiAce van. Causes excluded by the evidence 1. The applicant was not under the influence of drugs or alcohol at the time of the collision. The evidence also excluded as a cause of the collision driver fatigue, unfamiliarity with driving the Austral truck, mechanical fault in the truck, lighting, weather, road conditions or road or building work. The evidence also excluded the possibility that the applicant had been distracted by his mobile phone. The aftermath of the incident 1. Byron Struck, a pedestrian on Botany Road on the morning of the collision, observed the truck on the footpath coming towards him. He noticed that its driver (the applicant) was "slumped over", looking as if he had "passed out". He rang Triple-0. The driver appeared "groggy" and was "leaning towards the door [of the truck]". According to Mr Struck, the driver looked as if "he was not fully aware of what had happened". 2. Emmanuel Georgoudis came out of the Coates Hire building on Botany Road when he saw the lights in the building flicker and heard a "rumble". He was the "first aider" for Coates Hire. He saw the truck stopped nearby and gave evidence that the driver looked as if he was "super calm" and had "just woken up". Mr Georgoudis saw the driver take out his phone to make a call. Later when he saw the driver, he saw him "shaking his head" and observed that he was "irate". 3. Sharma Hansen, a paramedic, who was called to the scene with his colleague, Joseph Douch, made a record in the New South Wales Ambulance Retrieval Form. He recorded that he gained access to the applicant from the passenger side of the truck. He also recorded: "Patient states felt unwell prior to the incident and LOC [loss of consciousness] prior to crash." 1. Mr Hansen observed that the applicant was reasonably lucid and told him that he did not know what had happened. The applicant told him that he had felt unwell that morning and was going to "call in sick". He told Mr Hansen that he had blacked out and could not remember what had happened in the crash itself. The paramedics administered a green whistle (methoxyfluorane) to the applicant at 8.04am and subsequently, at 8.18am, they administered intravenous ketamine by way of analgesia. 2. The applicant sustained injuries to his right leg as a result of which the limb was amputated below the right knee. Evidence adduced in the Crown case concerning the applicant The applicant's initial explanation of the collision 1. On 6 March 2019, the NSW police sought particulars of the accident from the applicant. He was asked to provide an explanation of the circumstances of the collision. On 8 March 2019, the applicant provided a response through his solicitor, in which the applicant said: "I was driving alone on Botany Road, Alexandria on 12 December 2018 at approximately 7.40am. I recall I pulled up at traffic lights and I was stationary. I felt a sharp pain in my stomach as the light changed to green and everything went dark. The next thing I recall is waking up after an apparent collision. I believe that I passed out or collapsed. I do not know how or why. I did not have, to my knowledge, any pre-existing medical condition." Other evidence concerning the applicant 1. At the time of the collision, the applicant was 38 years old. He was the holder of a NSW class HC (heavy combination) licence which permitted him to drive heavy vehicles, including the truck which he was driving on 12 December 2018. He also held a class R licence which permitted him to ride motorcycles. The Crown case included several licence applications made by the applicant since 2016 in which he denied that he had ever had "attacks of giddiness, blackouts, fainting or other sudden periods of unconsciousness". He also denied in such applications that he had any medical, physical or mental disabilities which might affect his driving. In each of these applications the applicant declared that the information he had given was "true and complete". 2. In October 2018, the applicant told Dr Terluk (a cardiologist to whom Dr Loo, his general practitioner, had referred him) that each prior syncopal episode had involved abdominal pain or abdominal discomfort acting as a vasovagal stimulus (it was not suggested that the applicant himself gave his history in these terms but these were the terms in which Dr Terluk expressed his report to Dr Loo). Expert evidence Professor Ernest Somerville 1. Professor Somerville is a neurologist specialising in epilepsy who holds the position of Director of the Comprehensive Epilepsy Service at the Prince of Wales Hospital. He gave the following evidence in relation to the applicant's medical history and the possible causes of his loss of consciousness on 12 December 2018. 2. Sudden or brief losses of consciousness tend to be caused either by syncope or epileptic seizures. There are significant differences between the mechanisms of these causes. 3. Syncope, also referred to as fainting, means a brief loss of consciousness which occurs when the brain cells lack sufficient blood (and therefore lack the glucose and oxygen required for normal function) and stop functioning. It can occur for various reasons. Vasovagal syncope is a type of syncope which usually occurs where there is a stimulus of some kind which triggers a response in the person's circulatory systems, consisting of a slowing or stopping of the heart for a few seconds and a falling blood pressure. The commonest triggers, referred to as "precipitous events", are seeing blood, giving blood or experiencing a needle in a vein, sustaining an injury, standing in one place for long periods or having an internal problem which causes pain or discomfort, such as gastroenteritis or, for women, menstruation. 4. An epileptic seizure is caused by excessive activity of brain cells which, instead of communicating with each other, start firing off together, rendering the brain incapable of functioning. This causes a person to stop breathing and lose consciousness. An epileptic seizure tends to be accompanied by stiffening and jerking because some of the brain cells that are activated are those that control the muscles in the arms and legs. 5. Thus, a seizure is caused by brain cells functioning too much, causing an overload, and a syncope is caused by brain cells ceasing to function. 6. Professor Somerville opined that the applicant suffered from a syncope and not a seizure. He explained that the way to distinguish one from another in a particular case was to look at the episode in a temporal sequence and examine all factors to arrive at a conclusion. He noted that sitting down driving would not usually trigger either a syncope or a seizure and that, therefore, it ought be regarded as a neutral factor. Professor Somerville regarded the darkened vision, which the applicant reported, as a "warning" which was consistent with a syncope and inconsistent with a seizure. He regarded abdominal pain as a trigger for a syncope, rather than a symptom of it, which pointed to the episode being a syncope rather than a seizure. He explained that pain, particularly internal pain, can provoke a syncope but cannot provoke a seizure. 7. In cross-examination, Professor Somerville accepted that "people with syncope usually do not immediately succumb to a loss of consciousness once they experience one of those triggers". Where a loss of consciousness is caused by a syncope, there can be a period of minutes between the trigger and the loss of consciousness. 8. The behaviour of the person while unconscious also indicates whether the loss of consciousness is due to a syncope or a seizure. A person who suffers a syncope is usually pale and may be sweaty but a person who suffers a seizure may either turn blue in the face or have no colour change but is not usually pale. As the applicant was observed to be pale, this is an indication that he suffered a syncope. The length of unconsciousness with a syncope tends to be seconds but with a seizure it tends to be around a minute or more. 9. The person's manner when regaining consciousness is also indicative. After a syncope, a person may be "a little bewildered because they don't know what has happened" or even "slightly confused", but after a seizure, a person is "usually profoundly confused, and doesn't know what day it was, and may not even recognise family members, and, and is completely out of it". 10. The risk of losing consciousness by reason of a syncopic episode while driving is increased for people who have a history of syncopes. Although Professor Somerville admitted that he had no evidence to support this contention, he said that it "ma[de] sense" to him that the applicant's history of having syncopes in a seated position while giving plasma would give rise to an increased risk that he would suffer a syncopal episode while in a seated position (including when driving). However, it is less likely for a person to experience syncope while seated as compared with standing, because when someone is standing a higher blood pressure is required to maintain blood flow because the blood "has to go uphill". For this reason, if someone is standing for a long period, their blood tends to collect in the veins of their legs, which means that there is less blood available to circulate up to the head. However, if there is a syncope, the heart may completely stop for a period of seconds. In these circumstances, the person's physical position is immaterial because they will lose consciousness as a result of the heart stopping. 11. Whereas epilepsy is able to be controlled by medication (and thus people who suffer from epilepsy can be licensed to drive if they are suitably medicated), vasovagal syncope cannot effectively be controlled by medication. 12. Professor Somerville opined that if the applicant had felt faint prior to driving on the morning of 12 December, then it would not have been reasonable for him to believe that it was safe to drive because feeling faint would be a warning sign that he might be about to have a syncopal event. However, Professor Somerville did not consider that if the applicant vomited at 7am that morning, he should not drive later because a vasovagal syncope triggered by vomiting normally occurs immediately after vomiting. If, however, the applicant had gastroenteritis, vomited at 7am and continued to feel unwell afterwards, he would still be at risk of syncopic episode. 13. In cross-examination, a third possible explanation for the applicant's loss of consciousness was put to Professor Somerville: pulmonary embolism. He explained that this occurs where "a clot forms in a vein, most commonly in the, in the legs, and then that clot dislodges and is carried with the blood back to the heart, where it is pumped out with the blood into the lungs, where it blocks off the blood vessels leading from the heart to the lungs". 14. Professor Somerville was asked about a radiological image taken of the applicant post-accident which recorded "non-occlusive filling defect within distal right main pulmonary artery" in the "right lower and upper lobar pulmonary arteries" and "left near occlusive filling defects in segmental branches of upper lobe." He explained that these images indicated that the applicant had a clot which was not a complete blockage of the artery. Depending on its size, a clot may cause chest pain, shortness of breath, low blood pressure or the coughing of blood. Although a pulmonary embolism could cause loss of consciousness, Professor Somerville opined that it would have to be a larger embolism than the one depicted on the images to have this effect. Where a pulmonary embolism causes a loss of consciousness, there can be a rapid onset of loss of consciousness. 15. The following exchange occurred in the cross-examination of Professor Somerville: "Q. Is it possible that there was a loss of consciousness by Mr Haynes because of non‑occlusive pulmonary embolism? A. I think that's very unlikely. Q. Is it possible? A. Is it possible? Well, yes, I suppose I'd have to say it's possible." 1. Professor Somerville accepted that the applicant's description of abdominal pain which he experienced when he stopped at the lights before the incident, was a subjective description and could therefore refer to pain that was higher up (in the chest) rather than pain in the abdominal area. 2. Professor Somerville considered that the more likely reason for the non-occlusive filling defect revealed on the images was the trauma to the applicant's leg which had been sustained as a result of the collisions and was therefore not a factor in his loss of consciousness. 3. Professor Somerville was also asked about the atrial fibrillation which the applicant was reported as experiencing when the ambulance officers attended him in the cabin of the truck. He explained that the heart has four chambers, two on the right and two on the left. Each of the upper chambers, where the blood enters the heart, is called an atrium and each the lower chambers, from which blood is expelled from the heart, is called a ventricle. Atrial fibrillation occurs when the atrial chambers, instead of contracting in a coordinated manner and squeezing the blood into the ventricular chamber, contract irregularly. The rate of contraction in the ventricle is controlled by contraction of the atrium. Thus, if contraction of the atrium becomes irregular or haphazard, such as occurs with atrial fibrillation, the ventricle will also contract irregularly. 4. Atrial fibrillation occurs for a variety of reasons and can be associated with an overactive thyroid, high blood pressure or lung disease but can also occur for no apparent reason. It becomes more common with age. A person suffering atrial fibrillation may experience palpitations (feeling their heart thumping, skipping beats or racing) but may also not be aware of it at all. It is uncommon for a person suffering atrial fibrillation to lose consciousness. 5. Professor Somerville was asked about various studies about the risk profile of those who had suffered syncopal episodes. He assessed the applicant's risk of fainting while driving as being between 0.93% and 1.86%. He said that, if the maximum acceptable risk was 2%, he considered that most neurologists and cardiologists would not have advised the applicant to stop driving altogether. The defence case The applicant's evidence 1. The applicant gave evidence following the rejection of his application for a directed verdict. 2. The applicant was born in June 1980. He worked at various jobs but took up truck driving in 2017 and remained in that occupation until 12 December 2018. When he was about ten years old, he was diagnosed with vasovagal syncope, which was explained to him as "migraines in the stomach for kids". This was treated with Losec medication. He went off the medication in 1993. 3. The applicant developed an allergy to corn (of which he became aware in 2013), which can cause him to suffer abdominal pain and experience loss of consciousness. He avoids corn products as a consequence. In 2016, he consumed some corn and, later that evening after he had returned home, he had stomach-ache and passed out. Similar incidents occurred in 2012 and 2013. Prior to 12 December 2018, he had never experienced a circumstance where he felt sharp pain in his abdomen and immediately lost consciousness. 4. The applicant said in evidence that "… generally when I pass out it's discomfort [as distinct from pain] in the, in the stomach". However, he gave evidence about losing consciousness after abdominal pain in 2016. He began to feel unwell and "knew something was coming on" because he "felt funny in the stomach" and had "a bit of pain in the stomach". 5. In 2017, when the applicant was donating plasma at the Red Cross Blood Service, he began to feel unwell. Between three and four minutes later, he passed out for "[p]ossibly three or four minutes". This was the shortest period of time he had experienced between feeling unwell and passing out. 6. The applicant said that he slept well the night before the collision and did not have any symptoms when he woke up on 12 December 2018. He did not vomit that morning. He did not want to do the job taking the load from Prospect to Rosebery because he had not done the route before and said: "It can be very difficult just for the tight streets, never going to the job before, not sort of knowing what was required onsite to get in and out, and traffic, and pedestrians, and - yeah." 1. The applicant had his usual breakfast (vegemite on toast) and consumed an energy drink, as he usually did. When he started work, he felt "[f]ine". 2. The applicant said that he, in effect, mentally rehearsed what would occur when he arrived at the site. The following exchange occurred: "Q. Can you take us up to the point prior to when it's understood you were at a set of traffic lights at the corner of O'Riordan Street and Botany Road …? A. Yeah. So when I get to about five minutes out if I'm in traffic, I will stop, generally pull the park brake on so the truck doesn't roll without me noticing. I normally close my eyes and think about reversing the truck while I'm - you know - unstrapping the truck, things I had to do onsite. I generally find if you think about it too much there and then you can screw it up. So if you do all the thinking first, then it just sort of comes naturally to, to what you do." 1. The applicant was asked about what occurred at the intersection between O'Riordan Street and Botany Road, to which he answered: "So I pulled up at a yellow light 'cause I didn't - I knew I wouldn't make it through the light before it went red. I'd stopped, pulled the park brake on, sort of looked around, see how many cars are around for the traffic. Put my head down on the steering wheel, was thinking about reversing. That was because I was so close. I was - how I was going to reverse in or reverse out of site. And then within 30 seconds or so I looked up to see what the traffic was doing before getting close to going. I looked up, felt a - at that point I felt a sharp pain in the stomach and sort of grimaced, looked back up. The light turned green and that was the last thing I remember." 1. The applicant confirmed that he was driving an automatic truck and that he engaged the park brake when he stopped at the traffic lights. In order to operate the brake on the truck, the applicant had to move his foot from the accelerator to the brake, which is a conscious action. Although the applicant did not remember doing so, he agreed that, in order to disengage the park brake, he would have had to depress the accelerator pedal at the intersection in order to put the truck into motion. 2. The Crown case was put to the applicant in the following exchange: "Q. It's the case, isn't it, that you felt a sharp pain in your stomach? A. Correct. Q. Wasn't it the case that at that stage, knowing your history as you do, that you could've stopped the truck and put on the hazard lights? A. No. Q. Given where you were and what you were driving, and the potential for catastrophe if you had a loss of consciousness? A. No. It would've been impossible. Q. Why would it have been impossible? A. I didn't have time. Q. But you had enough time, did you not, to move off from the traffic lights? A. No. I did not move off from the traffic lights. Q. I put it to you that you did in fact move on from the traffic lights; that you were still conscious at that point? A. No. That is incorrect. Q. And that at that point, the point of feeling the pain, is when you should have switched off the engine and put on the hazard lights? A. I did not have time to do that. Q. I put it to you that you did? A. Well, you would be incorrect. Q. If it is as you say that there was no warning, that it just occurred out of the blue and that you didn't have time, that's what you say, isn't it? A. Correct. Q. I put it to you that that is not what occurred at all? A. That is exactly what happened." [It was accepted that the answers in bold were inconsistent with the DASHCAM footage which showed that the applicant put the truck in motion when the lights changed to green and had control of the vehicle for at least 20 seconds and possibly as many as 40 seconds before losing consciousness.] 1. The applicant said that the next thing he remembered was "[w]aking up once the truck had stopped after, after the incident". 2. When asked about the sharp pain which he experienced before the light turned green, the applicant said that he had never felt such a pain before and that it was "so intense". He indicated where he felt it, which his trial counsel described as being "across the midpoint of his chest near his solar plexus in a horizontal fashion". The applicant said that he was going "in and out of consciousness" when he felt a "sharp pain in [his] arm" following which he did not remember anything else until he went to hospital. 3. When asked about the hospital records which recorded that he had vomited his breakfast that morning and had a blackout two weeks previously and two blackouts in 2018, he said that these entries were "incorrect". 4. The applicant was asked about the licence application forms which he had submitted in which he denied that he had ever had attacks of giddiness, blackouts, fainting, or other sudden periods of unconsciousness. He said that he had read the question as meaning that the attacks had to be sudden and that he "always had plenty of indication something is going on". He denied that a negative answer was a lie. The applicant ultimately accepted that this answer was, having regard to what had occurred on 12 December 2018, incorrect. However, he said that he only knew that now, "[i]n hindsight". The applicant denied that he appreciated that he had suffered from vasovagal syncope prior to 12 December 2018 and said that, although he knew that he had passed out on occasions, he did not consider this to be a loss of consciousness. 5. The applicant said that he did not need his licence for work because he was "a qualified glazier with 20-odd years of experience" and that he had "plenty of options for either continuing glazing or management". 6. The applicant agreed that he had never had convulsions associated with loss of consciousness. 7. When asked about the form of demand which the applicant provided to police, the applicant accepted that the statement that he did not have any pre-existing medical condition was "incorrect". The applicant's wife's evidence 1. The applicant's wife, Michelle Haynes, also gave evidence, principally about the applicant's allergy to corn. The evidence of Giovanni Ornato 1. Mr Ornato, a work colleague of the applicant, gave evidence that the handbrake on a truck of the type that the applicant was driving on 12 December 2018 was an electronic handbrake. In order to engage it, the driver has to pull the lever forward towards the driver which causes a red light to be displayed on the switch and on the dashboard. To release it, the driver puts a foot on the brake and pushes the switch forward. However, it can also be released by the driver pressing the accelerator. The trial judge's reasons 1. In accordance with the principles set out above, the reasons of the trial judge must be treated with circumspection. However, for reasons set out later, it is of significance that the trial judge described the way in which Professor Somerville gave the crucial medical evidence. Consideration 1. The applicant contended that the trial judge's verdicts were unreasonable because it was not open to the trial judge to be satisfied beyond reasonable doubt that the applicant's driving was objectively dangerous as the Crown had not excluded the following hypotheses consistent with innocence: 1. that the applicant lost consciousness as a result of a pulmonary embolism of which he had no warning rather than as a result of a syncope (the pulmonary embolism hypothesis); or 2. even if the applicant lost consciousness because of a pre-existing medical condition, it was not objectively dangerous for him to drive after feeling the abdominal pain because he had not previously experienced a loss of consciousness in such a short period of time following the trigger event as eventuated on this occasion (the time period hypothesis). 1. In this Court, the applicant accepted, or did not controvert, the following findings made by the trial judge: 1. the applicant suffered abdominal pain while he was stopped at the lights at the intersection of Botany Road and O'Riordan Street (this was established by the applicant's admissions); 2. after the traffic lights had turned green, the applicant put the truck in motion and drove it for at least 20 seconds before he lost consciousness (this was established by the DASHCAM footage); 3. a syncopal episode is typically preceded by a symptom which provides the person with a warning of an impending loss of consciousness (the expert evidence of Professor Somerville); 4. the period between the onset of the symptom and the loss of consciousness is variable and may be immediate, within minutes or longer (the expert evidence of Professor Somerville); 5. the applicant had previously had episodes of loss of consciousness associated with abdominal pain (as admitted by the applicant and established by his medical records); 6. the shortest time period between the applicant experiencing a warning signal and his loss of consciousness occurred in 2017 when the applicant lost consciousness within 3-4 minutes of donating plasma; and 7. it was open to the tribunal of fact to infer that the applicant's lie on the form of demand ("I did not have, to my knowledge, any pre-existing medical condition") was evidence of consciousness of guilt. The pulmonary embolism hypothesis 1. The basis for the applicant's submission that the pulmonary embolism hypothesis had not been excluded beyond reasonable doubt is the evidence of Professor Somerville extracted above where he accepted that it was possible that the applicant lost consciousness as a result of a non-occlusive pulmonary embolism. The applicant submitted that this was sufficient to render the verdicts unreasonable. 2. As referred to above, the prosecution is required to exclude beyond reasonable doubt only those hypotheses consistent with innocence which are "reasonable" and "not fanciful" and which do not amount to mere conjecture. If it were otherwise, the standard of proof beyond reasonable doubt would be elevated to beyond all doubt: see the discussion in The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 at [29]-[37] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ). 3. Thus, an expert witness's acceptance that a particular hypothesis is "possible" may be the beginning, but is not the end, of the inquiry. 4. Professor Somerville considered that the applicant lost consciousness as a result of a vasovagal syncope. His opinion was based on the applicant's documented history, the history he gave to witnesses on 12 December 2018, the applicant's contemporaneous symptoms, the applicant experiencing stomach pain (a trigger), the warning sign that the applicant was about to lose consciousness (his awareness of darkness), the period of loss of consciousness and his appearance and manner after he regained consciousness. 5. Professor Somerville considered that the applicant's loss of consciousness was inconsistent with its having been caused by a non-occlusive pulmonary embolism for the following reasons: 1. the size of the pulmonary embolism was insufficient to have that effect; 2. there was no indication in the applicant's medical history that he had a non-occlusive pulmonary embolism prior to the collision; 3. the sequence of events; 4. the applicant's conduct; and 5. the fact that the pulmonary embolism which was detected could readily be explained by the injuries which the applicant had sustained as a consequence of the impact between his truck and various fixed objects. 1. While the trial judge's reasons are, as set out above, to be treated with a degree of circumspection, it is significant that his Honour addressed this aspect of Professor Somerville's evidence and noted the witness's demeanour when giving the evidence. His Honour said, of present relevance: "I turn lastly to whether a pulmonary embolism might have caused the accused's loss of consciousness. Professor Somerville considered it was 'possible' a pulmonary embolism could cause rapid loss of consciousness. It was clear from the manner Professor Somerville gave this evidence that he considered the hypothesis highly unrealistic. He stressed that it was 'very unlikely' a pulmonary embolism caused the accused's loss of consciousness and he explained there were a number of reasons for this. A pulmonary embolism sufficient to block arteries such as to cause loss of consciousness would have to have been bigger than the non-occlusive filling defect noted during the accused's hospitalisation. The reason for the latter was the trauma the accused had sustained to his leg in the collision. Pain associated with pulmonary embolism was in the chest area whereas the accused described a sharp abdominal pain although he acknowledged a seated patient may conceivably describe that way pain higher in the body. The accused had a long history of episodes of vasovagal syncope. It is significant in this respect the accused's history of episodes of vasovagal syncope included episodes associated with abdominal pain. In all these circumstances the hypothesis that a pulmonary embolism caused the accused loss of consciousness is not reasonable. The only reasonable hypothesis is that the cause of loss of consciousness was a syncopal episode." 1. The trial judge's description of the way in which Professor Somerville gave evidence does not fall into the same category as a classic demeanour finding. Usually this category contains findings where the tribunal of fact has assessed a witness's credibility by reference to the way in which the witness gave evidence (which typically includes such matters as hesitation, blushing, signs of nervousness and so on). In the present case, there was no challenge to Professor Somerville's credibility, reliability or expertise. Rather, the trial judge used the witness's tone and body language to infer the content of Professor Somerville's evidence, rather than its veracity. As his Honour explained, it "was clear from the manner Professor Somerville gave this evidence that he considered the hypothesis highly unrealistic." 2. Having regard to the whole of the evidence, which I have set out above, I do not have a doubt that all reasonable hypotheses consistent with innocence were excluded by the evidence. However, if such a doubt did arise from Professor Somerville's evidence (that it was possible that the applicant had lost consciousness as a result of a pulmonary embolism), that doubt would be removed by his Honour's advantage in seeing and hearing Professor Somerville giving evidence and observing the demeanour of Professor Somerville when giving evidence as to that matter. The time period hypothesis 1. The applicant submitted that even if he lost consciousness because of a pre-existing medical condition (vasovagal syncope), it was not objectively dangerous for him to drive after feeling the abdominal pain because he had not previously experienced such a quick onset of a loss of consciousness as eventuated on this occasion. Thus, the applicant submitted that because he had never experienced a loss of consciousness as a result of a vasovagal syncope within such a short period (20 seconds) of the trigger before (his next shortest loss of consciousness occurring within 3-4 minutes of the trigger event), it was not open to the trial judge to infer that his driving was objectively dangerous. 2. For the purposes of assessing objective dangerousness, it is necessary to consider the period immediately preceding the applicant's loss of consciousness (since the applicant's actions, or inaction, during the period after loss of consciousness were not voluntary). 3. The following evidence is relevant to this question: 1. although there is a risk of loss of consciousness in any driver, the risk is increased by a history of syncopal episodes; 2. a person who has had multiple syncopal episodes is at a higher risk of having another syncopal episode; 3. the risk of a syncopal episode while driving is increased if the person has previously had an episode while seated; 4. internal pain can trigger syncope, and if a person has previously had a syncope after abdominal pain that stimulus can be both a trigger for an episode as well as a warning of an imminent syncope; 5. the applicant had previously experienced a vasovagal episode where loss of consciousness occurred within three or four minutes of the trigger event of donating plasma, which was the "fastest" the loss of consciousness had occurred post-stimulus prior to 12 December 2018; 6. the applicant had lost consciousness after abdominal pain in 2016; 7. in 2018, the applicant gave a history to Dr Terluk in which he associated past losses of consciousness with abdominal pain or discomfort as a trigger; and 8. the applicant's history included each of (1)-(7) above. 1. In light of this evidence, it was open to the tribunal of fact to reason that on 12 December 2018: 1. when the applicant experienced abdominal pain when stopped at the lights at the intersection, he was at risk of imminent syncope; 2. at that time the truck was stationary and therefore did not pose a risk to other road users, who included drivers of vehicles and pedestrians; 3. as soon as the applicant (consciously) put the vehicle in motion, his driving posed a grave danger to other road users because if the applicant lost consciousness the momentum of the truck and trailer would be uncontrolled and could only be reduced by opposite forces, including by colliding with other objects or persons, unless and until he regained consciousness sufficiently to be capable of applying the brake; and 4. the period of time between the trigger and any syncope could not be reliably predicted but it could occur within a short space of time. 1. Mr Todd, who appeared on behalf of the applicant, accepted that if the applicant had continued driving for three minutes after experiencing a sudden pain in the abdomen before losing consciousness, it would have been open to the tribunal of fact to find that his driving was dangerous. I do not consider that any sensible distinction can be made between those circumstances and the present circumstances where the loss of consciousness occurred within 40 seconds (and possibly as few as 20 seconds) from putting the vehicle in motion. The momentum of the vehicle, the presence of other road users, the configuration of the road (two lanes in either direction with only a painted line to divide them) and the unpredictability of the interval between a trigger for a syncopal episode and the loss of consciousness means that setting the vehicle in motion after experiencing the trigger at the intersection was dangerous. 2. It was open to the tribunal of fact to find beyond reasonable doubt that the applicant's actions in disengaging the parking brake and depressing the accelerator subjected others to a significantly greater level of risk than that ordinarily associated with driving a motor vehicle (see the authorities referred to above). Conclusion 1. Having reviewed all of the evidence, I am not persuaded that any of the verdicts are unreasonable. It was open to the trial judge to make findings of guilt in respect of each of the three counts charged. None of the arguments ably advanced by Mr Todd on behalf of the applicant causes me to doubt the applicant's guilt on any of the counts. Accordingly, the appeal ought be dismissed. 2. It is appropriate that there be a grant of leave to appeal as the Court has heard full argument on the ground and the Crown did not oppose leave. Proposed orders 1. For the reasons given above, I propose the following orders: 1. Grant leave to appeal. 2. Appeal dismissed. 1. LONERGAN J: Having reviewed the evidence at trial, I agree with Adamson JA that the verdicts were open on the evidence and were not unreasonable. 2. SWEENEY J: Having conducted my own review of the evidence I am of the view the verdicts were not unreasonable. I agree with Adamson JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2024