Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Prineas v R [2018] NSWCCA 221 Hearing dates: 20 July 2018 Date of orders: 15 October 2018 Decision date: 15 October 2018 Before: Hoeben CJ at CL at [1]; Fullerton J at [72]; R A Hulme J at [75] Decision: (1) Leave to appeal against conviction is granted. (2) The appeal against conviction is dismissed. Catchwords: CRIMINAL LAW – conviction appeal – judge alone trial – driver found not guilty of dangerous driving but guilty of negligent driving – whether verdict of guilty available on evidence – whether verdict of not guilty of dangerous driving inconsistent with verdict of guilty for negligent driving – no inconsistency – appeal dismissed. Legislation Cited: Crimes Act 1900 (NSW) – s 52A Criminal Appeal Act 1912 (NSW) – s 5AD(3) Criminal Procedure Act 1986 (NSW) – s 166 Crimes (Sentencing Procedure) Act 1999 (NSW) – s 9 Evidence Act 1995 (NSW) – s 38 Road Transport Act 2013 (NSW) – s 117(1)(b) Cases Cited: Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953; 188 A Crim R 82 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Jiminez v The Queen [1992] HCA 14; 173 CLR 572 Kroon v R (1990) 55 SASR 476 M v The Queen [1994] HCA 63; 181 CLR 487 MC v R [2017] NSWCCA 274 McBride v The Queen [1966] HCA 22; 115 CLR 44 Proudman v Dayman (1941) 67 CLR 536; [1941[ HCA 28 R v Buttsworth [1983] 1 NSWLR 658 R v Robert Borkowski [2009] NSWCCA 102 SKA v The Queen [2011] HCA 13; 243 CLR 400 Category: Principal judgment Parties: John Anthony Prineas – Applicant Regina – Respondent Crown Representation: Counsel: C Miralis – Applicant H Roberts – Respondent Crown Solicitors: C Miralis – Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2016/69447 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 11 August 2017 Before: Buscombe DCJ File Number(s): 2016/69447 Judgment 1. HOEBEN CJ at CL: Offence and sentence The applicant was charged on indictment that on 29 August 2015 at Springwood he drove a vehicle (registered number CXV 57B) in a manner dangerous occasioning grievous bodily harm to the driver of another car, Brian Luke. This is an offence contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW). 1. The matter proceeded before Judge Buscombe DCJ sitting without a jury at the Penrith District Court. The applicant was acquitted of that count. 2. The Crown then relied upon the same evidence for a backup charge on a s 166 Certificate of negligent driving (occasioning grievous bodily harm) contrary to s 117(1)(b) of the Road Transport Act 2013 (NSW). The applicant was found guilty of that charge. On 11 August 2017 he was fined $1000 and entered into a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 12 months. He was also disqualified from driving for a period of 12 months from the same date. 3. Procedurally, for matters under s 117(1)(b) of the Road Transport Act there is an appeal to a single judge of the Supreme Court nominated by the Chief Justice. That judge can hear the matter himself or herself or can notify the Chief Justice that the appeal should be dealt with by a full court (s 5AD(3) Criminal Appeal Act 1912 (NSW)). Accordingly, when this matter was referred to me for hearing by the Chief Justice, I notified him that the matter was of sufficient importance that it should be dealt with by a full court. The Chief Justice accepted that recommendation and that is how the matter came to be heard by a full court. 4. The applicant seeks leave to appeal from his conviction on two grounds. Ground 1 – Unreasonable or unsupported verdict. Ground 2 – That the verdict in relation in the s 166 Certificate count – negligent driving causing grievous bodily harm – is inconsistent with the acquittal on Count 1 – dangerous driving causing grievous bodily harm. The Crown case and evidence 1. The Crown case was that in the early morning of 29 August 2015, shortly after 4am, the applicant was driving his vehicle along Hawkesbury Road, Springwood, when he fell asleep at the wheel. His vehicle crossed onto the wrong side of the road and collided with Mr Luke's vehicle. Mr Luke was driving in the opposite direction. Mr Luke suffered grievous bodily harm in the form of injuries to his vertebrae. 2. The applicant was employed to provide security at the Seven Hills-Toongabbie RSL Club (the RSL) and had been working there on the preceding night of Friday, 28 August 2015 and during the early hours of the morning on Saturday, 29 August 2015. Evidence was led from one of his workmates, Mr Ahio, regarding his alertness and appearance at work to the effect that he appeared tired. The distance from the RSL to the applicant's home at Springwood was approximately 48 km and the driving time was usually 40 minutes. 3. The applicant told the officer who attended at the collision scene that he had drunk a coffee before leaving work and was feeling okay. The driver's side window of the applicant's motor vehicle was found to be wound down and the radio was on. There was no mechanical defect with the applicant's vehicle. 4. It was not in dispute that the applicant was driving motor vehicle CXV 57B on Hawkesbury Road in Springwood when within one to two kilometres of his home, he momentarily fell asleep at the wheel and the vehicle crossed onto the wrong side of the road and collided "head on" with Mr Luke's vehicle. It was not in dispute on the appeal that Mr Luke suffered injuries amounting to grievous bodily harm. 5. Mr Luke gave evidence that he left his home at Winmalee at about 4.05am to drive to Leura where he worked at a Woolworths store. He proceeded along Hawkesbury Road towards the Springwood Golf Club. As he got close to the golf club, which was on his right hand side, he saw a set of lights coming towards him in the opposite direction. He thought that the vehicle was on the other side of the road. He remembered the other vehicle being right in front of him but had no recollection of the actual collision. 6. While at the scene of the collision, the applicant was spoken to by Constable Wright and asked what had happened. The applicant told the officer: "I was driving home from work, I remember turning on the roundabout and heading down Hawkesbury Road and driving along Hawkesbury Road. The next thing I remember is an airbag in my face. I must have nodded off. I had a doctor's check earlier in the year. I'm in good health for my age. I had my seatbelt on." 1. The applicant also told the officer that he had worked between 8pm and 3.30am and when asked about his fatigue levels responded: "I felt good and I had a good rest during the day. I had a coffee before I left work and felt okay." 1. Constable Wright gave evidence that at the time he spoke with the applicant, he appeared tired, was yawning and wiping his eyes. 2. Senior Constable Simon Smith of the Metropolitan Crash Investigation Unit gave evidence that he arrived at the scene of the collision at around 6.45am. Neither Mr Luke nor the applicant were at the scene. His evidence was that there was no suggestion that either the applicant or Mr Luke had been speeding, no tyre marks were found on the road surface near the collision which was consistent with the applicant having been asleep at the wheel at the time of the collision. 3. At the scene Constable Smith observed that the front driver's side window of the applicant's vehicle was all the way down and when the radio was turned on it was tuned to Triple M and the volume was quite loud, being louder than normal. Constable Smith agreed in cross-examination that the collision occurred about one to one and a half kilometres from the applicant's home. He also agreed that his investigation produced no evidence that the applicant had veered onto the wrong side of the road before he fell asleep. 4. Constable Smith gave evidence that the applicant also worked with Armaguard during the day, although there was evidence that showed that the applicant did not work at that job on 28 August 2015. The applicant had no prior criminal convictions on his record. 5. The Crown called Mr Ahio. He was a security guard who worked with the applicant at the RSL. The applicant was his supervisor. He first made a statement about his observations of the applicant on the evening of 28 August and the early morning of 29 August 2015 on 27 January 2016, almost five months later. 6. In evidence in chief he said that on the night in question he worked at the RSL from 5pm until 3am leaving at 3.30am. His evidence was that the applicant arrived between 6 and 7pm and looked tired. During his evidence in chief he also said that he could not remember how the applicant looked on the particular night of 28 August 2015. 7. The Crown was granted leave to cross-examine Mr Ahio under s 38 of the Evidence Act 1995 (NSW). Under cross-examination by the Crown Mr Ahio agreed that he had told the police in his statement that at 1am on 29 August 2015 he went to the foyer of the RSL and had seen the applicant leaning on the ledge of a counter and that he appeared to be nodding off. He also agreed that he had told the police that the applicant had his eyes closed and that his head jerked back and forth on a number of occasions and that he had said to the applicant "John wake up" because he thought the applicant was asleep. He agreed that he had seen the applicant drink two or three coffees during the night. 8. In cross-examination, on behalf of the applicant, Mr Ahio conceded that the records of his employment showed he had finished working at the RSL on the evening of 28 August 2015 at midnight. It was put to him that the observations he claimed he made after midnight about the applicant's behaviour and demeanour could not be accepted as he was not present at the time he said he made those observations. Mr Ahio agreed that due to the passing of time, the observations he made about the applicant on that evening might not have been accurate. He said in cross-examination that he recalled the applicant taking regular coffee breaks on 28 August 2015 while at work. 9. His Honour found that it was difficult to accept Mr Ahio's recollection of that evening given the inconsistency with the work records. 10. The applicant gave evidence and called two employees from the RSL. The applicant gave evidence that he normally worked on a Friday night and an occasional Saturday night shift at the RSL. His Friday night shifts were normally between 8pm and 3.30am. He also had an additional job with Armaguard, which was a cash in transit company, and he was part of a transit crew. 11. The applicant had commenced that job three weeks before the collision. In the week of 28 August 2015 he worked for Armaguard on Monday, Tuesday, Wednesday and Thursday but did not work the Friday, being 28 August. He commenced his shifts with Armaguard between 7 and 7.30am and they were generally eight hour shifts. In the evenings that week he did nothing unusual and was generally in bed by 9.30pm. 12. He had a good quality sleep on that Thursday evening. On Friday, 28 August 2015 during the day he took his children to school, went home, did some housework and played with the dogs. His wife was at work and he spent the afternoon on the lounge watching television. He did not do any heavy physical activity during the day. He left home at 6pm to commence his 8pm shift at the RSL and arrived at those premises at about 7pm. 13. He confirmed that he worked as a security guard at the RSL which involved checking identification and the level of intoxication of patrons. He did not feel fatigued but agreed to being bored from time to time. When working at the RSL, he regularly drank coffee throughout the shift and during the day. He took a half hour meal break at about 9pm. 14. The applicant worked at the RSL for about eleven and a half years. On the morning of 29 August 2015 he finished work at the RSL at 3.30am and walked two members of staff to their cars in the carpark. In terms of being fatigued he said he was about six or seven out of a scale of ten, in terms of his level of fatigue. He considered that he was alert when he commenced his drive home. 15. In terms of his interactions with Mr Ahio during his shift, he said that at no stage did Mr Ahio say to him "John wake up". He said that Mr Ahio left at midnight. 16. Upon entering his car the applicant started the engine, wound down the driver's side window and sat there for a few minutes to warm the car up as it was new. The applicant said that he had always driven with the window down so he could have his elbow up and hold the steering wheel. Once he got onto the M4 he had put the window up about two-thirds of the way as there would have been too much wind. He agreed that it was cold in terms of the temperature. He said that he always drove with the radio on. He was very familiar with the route that he travelled on that night. He did not stop and rest during the journey home as he did not feel that he was going to fall asleep. Before the collision, he did not experience any tiredness. He confirmed that what he had told the police on that evening was the truth. 17. In cross-examination the applicant agreed that he could not recall having slept on the afternoon of 28 August 2015. He also agreed that he had woken up around 7 or 7.30am that morning and by the time of the collision had been awake for about 21 hours. He agreed that he was often tired after work on Friday nights. He agreed that the drive itself was quite a boring drive. 18. The applicant called Mr Aung in his case. Mr Aung worked as a supervisor at the RSL. He worked on the night of the collision and had known the applicant for a number of years. He recalled that after he had finished at 3.30am the applicant escorted him and the duty manager out to their cars in the carpark. The applicant appeared to be fine and alert and he made no attempt to stop the applicant driving because he seemed all right. He did not consider that the applicant appeared to be tired or sleepy at the time. Mr Aung spent somewhere between two and four minutes with the applicant at the end of his shift. In cross-examination he said that he had been asked to provide a statement about three or four weeks before giving evidence and that the request had come from the applicant personally. 19. Ms Wakka was also called in the applicant's case. She was a relief duty manager at the RSL and knew the applicant as one of the security guards. She started work at 6pm on 28 August 2015 and her shift ended at 3.30am. She recalled the applicant walking her and Mr Aung to their respective cars at 3.30am on 29 August 2015. She described the applicant as appearing to be fine and she took no steps to stop him from driving because she did not think that there was anything wrong with him. He gave her the impression that he was totally alert. 20. In cross-examination Ms Wakka said that she had been asked by the applicant to make a statement in relation to the evening about two months before the trial. She agreed that the applicant had walked her to her car many times while working at the RSL, that she had no real recollection of the particular occasion or how he appeared on that particular occasion. 21. In his judgment his Honour commented that Ms Wakka's concession suggested that her evidence was more generic than dealing with the specific circumstances of the morning of 29 August 2015. Fact finding of trial judge 1. His Honour accepted that the applicant was a person of good character and took that into account when considering whether he committed the offence charged and in relation to his credibility. 2. His Honour identified the elements of the offence of dangerous driving occasioning grievous bodily harm under s 52A(3)(c) of the Crimes Act as follows: 1. The person drove a vehicle. 2. The vehicle was involved in an impact. 3. At the time of the impact the vehicle was driven in a manner dangerous to another person or persons; and 4. The impact occasioned grievous bodily harm to another person. 1. His Honour identified as the primary consideration whether he could be satisfied beyond reasonable doubt that at the time of impact the applicant drove his motor vehicle in a manner dangerous to another person or persons. His Honour found beyond reasonable doubt that the cause of the impact between the applicant's motor vehicle and Mr Luke's was that the applicant had momentarily fallen asleep while driving. This caused his vehicle to move onto the wrong side of the road and collide with Mr Luke's vehicle. 2. His Honour referred to the High Court decision in Jiminez v The Queen [1992] HCA 14; 173 CLR 572 as containing the relevant principles to be applied in the case before him. His Honour noted that the High Court made it clear that in such a case as this the relevant period of driving is not the period during which the driver was asleep because during that period of time the driver's conduct was not voluntary and a voluntary act was required in order to ground criminal liability for the offence. The relevant period of driving to consider was that which immediately preceded the driver falling asleep. 3. His Honour further noted that for the driving to be dangerous for the purposes of s 52A, there must be some feature which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle. This included driving by persons who may on occasions drive with less than due care and attention. If a driver was in a condition while driving which made the mere fact of his driving a real danger to the public, then his driving in that condition would constitute driving in a manner dangerous to the public. 4. His Honour specifically referred to the observations of the plurality (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) at p579 as follows: "For a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition that condition must be such that, as a matter of objective fact, his driving in that condition is a danger to the public. Various matters will be relevant in reaching such a conclusion. The period of the driving, the lighting conditions (including whether it was night or day) and the heating or ventilation of the vehicle are all relevant considerations. And, of course, it will be necessary to consider how tired the driver was. If there was a warning as to the onset of sleep that may be some evidence of the degree of his tiredness. And the period of driving before the accident and the amount of sleep that he had earlier had will also bear on the degree of his tiredness. But so far as "driving in a manner dangerous" is concerned, the issue is not whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that, in the circumstances, his driving was a danger to the public. …" 1. His Honour took the following further statements of principle from that case. It was necessary for the prosecution to establish that the applicant was affected by tiredness to an extent that in the circumstances his driving was objectively dangerous. It was open to the jury to draw an inference to that effect from a finding that the applicant went to sleep at the wheel. It was also open to the jury to find that the applicant honestly and reasonably believed that in all the circumstances it was safe to drive. 2. His Honour determined that the effect of the judgment in Jiminez v The Queen was that it was open to the accused to raise on the evidence that he honestly and reasonably believed that in all the circumstances it was safe to drive. Once that was raised, the onus was on the Crown to prove beyond reasonable doubt either that the belief was not honestly held by the applicant or that it was not a reasonable belief in all the circumstances. 3. His Honour then set out his findings from the evidence as follows: "While the accused presented in the witness box as someone perhaps over eager to stress that he had no warning of the onset of sleep, overall I found he was an acceptable witness and, in relation to that conclusion, I have had regard to the good character direction I referred to earlier. There is simply no basis upon which I could hold, beyond reasonable doubt, that the accused did not honestly believe that it was safe for him to drive. I could not, for the reasons I gave earlier, give any significant weight to the observations about the accused made by Mr Ahio, in terms of the accused's level of tiredness during the evening, prior to entering his motor vehicle. The evidence of the two employees of the RSL club, while having some reservations about whether they were giving evidence of recollections of the specific night in question, support a finding that the accused did not appear to be tired prior to commencing his drive. Officer Wright's observations about how the accused appeared when he spoke with him, were made after the collision had occurred and, no doubt, at a time when the accused was experiencing post-collision shock. In those circumstances, it seems to me not much weight can be placed on those observations as evidence of the level of the accused's tiredness in the period before the collision. It is true that, on his own evidence, the accused had not slept for over 20 hours but the drive was one which was well-known to him, and that he had driven it on many occasions in similar circumstances. The fact that he had taken what appeared to me to be some precautions, although he did not describe them in that way, to assist him to stay awake – that is, he rested in the afternoon before he went to work, he drove with the window partially down during a winter's night, he had music playing on the radio and drank coffee during the evening does not, in my view, impact my assessment as to whether or not he honestly held a belief that it was safe to drive. His explanation of having the window down, while driving on a cold winter's night, I found difficult to accept but despite that reservation, as I say, overall I found the accused to be an acceptable witness." 1. By reference to those findings, his Honour set out his reasons for not being satisfied that the applicant was guilty of driving his vehicle at the time of impact in a manner dangerous to another person. "The question of whether or not the Crown has proved beyond reasonable doubt that it was not reasonable in the circumstances for the accused to have a belief that it was safe for him to drive, has caused me more difficulty. To drive such a distance at night, when one has not slept for in excess of 20 hours and after having worked, has troubled me. Ultimately, however, given that I accept the accused's evidence that he rested the afternoon before he went to work and had slept well earlier that week, that it was a drive the accused had performed on a number of similar occasions, that I am satisfied that he had no warning as to the onset of sleep and the precautions he took in terms of remaining alert while driving, I am not persuaded beyond reasonable doubt that it was unreasonable for him to have a belief that it was safe to drive on this particular occasion." 1. I should interpolate here that it is unfortunate that his Honour departed from the terminology of the offence, i.e. whether the driving was "dangerous" and used the phrase "safe for him to drive". I have underlined the occasions when this took place. The difficulty created by his Honour not using the word "dangerous" is that it understates the difference in seriousness of this offence when compared to that of negligent driving. It would have been better, and would have avoided any misunderstanding, had his Honour used the phrase "held a belief that it was not dangerous to drive". 2. His Honour then proceeded to deal with the summary offence under s 117(1)(b) of the Road Transport Act of negligent driving. His Honour noted that the evidence before him was the same as that which was before him on the trial of the dangerous driving charge. 3. His Honour took as the test for negligent driving that set out by Johnson J in Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953; 188 A Crim R 82 where his Honour said: "27 Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances. The distinction which may be drawn between driving negligently, driving in a manner dangerous to the public and driving of a kind which justifies a conviction for manslaughter is essentially a distinction in the degree of negligence appropriate to the offence, being a distinction in the degree of departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances." 1. His Honour noted that the test for negligent driving was a lesser test than the test for dangerous driving or driving in a manner dangerous. Negligent driving was not an absolutely liability offence but still required a voluntary act. His Honour found that based on his earlier findings, the driving of the applicant once he fell asleep was not the relevant period of driving. His Honour found that the relevant period was the period immediately prior to him falling asleep. 2. His Honour referred to his findings in relation to the dangerous driving offence that he was not satisfied that the Crown had proven beyond reasonable doubt that the applicant did not honestly believe that it was safe for him to drive and that the Crown had not proven beyond reasonable doubt that it was not reasonable in the circumstances for the applicant to have a belief that it was safe for him to drive. 3. His Honour then set out the basis for his finding of guilt in relation to the negligent driving charge as follows: "I think the test is, as the Crown advances here, a lesser test, in that it is that the Crown must prove beyond reasonable doubt, in the circumstances here, that the accused either did not honestly believe that it would be negligent [sic] for him to drive at the relevant time, or prove beyond a reasonable doubt that it was not reasonable for him to believe that it would not be negligent for him to drive at the relevant time, where negligence is as Johnson J considered it to be. I am of the view that the Crown has not proved beyond reasonable doubt that the accused did not honestly believe that it was not negligent to drive when he drove that evening. Essentially for the reasons I gave earlier that I accepted his evidence in that regard. As I said, when I acquitted him of the dangerous driving causing grievous bodily harm charge, the question whether the Crown had proved beyond reasonable doubt that it was not reasonable, in the circumstances, for the accused to have a belief that it was safe for him to drive caused me more difficulty. Here there is a lesser test for the Crown to meet, that is, that the Crown must prove beyond reasonable doubt that it was not reasonable, in the circumstances, that the accused had a belief that it was not negligent for him to drive. Negligent in the sense that I have referred to earlier. When I have regard to the lesser test that is to be applied when considering negligent driving, the distance travelled at night, the fact that he had not slept for 20 hours after working, and when clearly the precautions he took suggested that he was aware, it seems to me, of the risk of him falling asleep during the period of the driving, I am persuaded that the Crown has proven beyond reasonable doubt that it was not reasonable, in the circumstances, for the accused to believe that it was not negligent for him to drive." THE APPEAL Ground 1 – Unreasonable or unsupported verdict. Ground 2 – That the verdict in relation in the s 166 Certificate count – negligent driving causing grievous bodily harm – is inconsistent with the acquittal on Count 1 – dangerous driving causing grievous bodily harm. 1. These grounds of appeal essentially raise the same issue and can be dealt with together. 2. The applicant relied upon the often quoted passages from M v The Queen [1994] HCA 63; 181 CLR 487 by Mason CJ, Deane, Dawson and Toohey JJ at pp 493-495 as setting out the approach to be followed by a court of criminal appeal when considering grounds of appeal of this kind. In particular, the applicant relied upon the requirement that this Court "is to make its own independent assessment of the evidence and ask itself whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty …". 3. The applicant noted that the same test was to be applied where the tribunal of fact is a judge, rather than a jury, and referred the Court to the discussion by the High Court in Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [12] as to the role of a court of criminal appeal when considering a ground of appeal asserting that a conviction is unreasonable and not able to be supported after a trial by judge alone: " … in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. …" 1. Applying those principles, the applicant submitted that the conviction for negligent driving was unreasonable or unsupported by the evidence because the evidence did not prove beyond reasonable doubt that the applicant drove a motor vehicle in a manner involving a departure from the standard of care expected of the ordinary prudent driver in the circumstances. The applicant submitted that the evidence did not establish that the applicant knew or ought to have known that there was a significant risk of falling asleep at the wheel in all the circumstances. The evidence did not establish that he was not a prudent driver in all the circumstances. 2. The applicant set out the evidence identified by his Honour to the effect that the Crown had failed to prove beyond reasonable doubt that the applicant did not honestly believe that "it was safe for him to drive". The applicant submitted that on the basis of that evidence, it was simply not open to his Honour to find beyond reasonable doubt that it was not reasonable for the applicant to have a belief that it was not negligent for him to drive in the sense that his driving involved "a departure from the standard of care of other users of the road to be expected of the ordinary prudent driver in the circumstances". 3. The applicant submitted that his acquittal in relation to the dangerous driving count could not be reconciled with his conviction in relation to the negligent driving charge so that the latter verdict was inconsistent with the former. The applicant submitted that the same evidence which led to the acquittal of the applicant in relation to the dangerous driving offence ought to have led to his acquittal in relation to the negligent driving charge. 4. The applicant submitted that the facts found and the evidence led in relation to the dangerous driving charge should not have been affected by reason of a different test applicable to the concepts of dangerousness and negligence in the context of driving. Consideration 1. There was no issue between the parties as to the correct test to be applied by this Court. SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]-[14] restates the principles in M v The Queen and it was common ground that the same principles apply to a judge alone trial. Accordingly, the essential question under Ground of Appeal 1 is whether it was open to the trial judge to find beyond reasonable doubt that the applicant's manner of driving involved a departure from the standard of care which an ordinary prudent driver would observe in the circumstances (Director of Public Prosecutions (NSW) v Yeo and Anor at [27]). 2. It was also common ground between the parties that in circumstances in which a driver falls asleep while driving the relevant period of driving to consider is that which precedes the driver falling asleep. This was made clear in Jiminez v The Queen. There the High Court (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) referred with approval to the decision of Kroon v R (1990) 55 SASR 476 in which King CJ said at p480: "Every act of falling asleep at the wheel is preceded by a period during which the driver is driving while awake and therefore assuming the absence of involuntariness arising from other causes responsible for his actions. If a driver who knows or ought to know that there is a significant risk of falling asleep at the wheel continues to drive the vehicle he is plainly driving without due care and maybe driving in a manner dangerous to the public. If the driver does fall asleep and death or bodily injury results, the driving prior to the falling asleep is sufficiently contemporaneous with the death or bodily injury to be regarded as the cause of the death or bodily injury …" 1. Both Kroon v R and Jiminez v The Queen involve consideration of the offence of dangerous driving rather than negligent driving. As his Honour appreciated in this case, the distinction is an important one. This was made clear in R v Robert Borkowski [2009] NSWCCA 102 where Howie J (with whom McClellan CJ at CL and Simpson J agreed) said: "56 As the law presently stands, there is a rational, logical and cohesive hierarchy of offences concerned with the infliction of death or serious injury by the use of a motor vehicle. The offences range from negligent driving causing grievous bodily harm (s 42(1)(b) of the Road Transport (Safety and Traffic Management) Act with a maximum penalty of 9 months imprisonment) through the driving offences in the Crimes Act to manslaughter by gross criminal negligence. All of these offences involve varying degrees of negligence, however the actual conduct may be described, ranging from a lack of care and proceeding through dangerousness to culpable negligence: R v Buttsworth [1983] 1 NSWLR 658. …" 1. This distinction was recognised by Barwick CJ in McBride v The Queen [1966] HCA 22; 115 CLR 44 at 49-50 in the context of a discussion of "speed or in a manner dangerous to the public" where his Honour said: "14 This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby. …" 1. The trial judge accepted that the applicant had an honest belief that he was not too tired to drive. His Honour also found that: 1. During the preceding five days the applicant had worked a "day shift" Monday to Thursday. 2. Although he had not worked the Friday preceding the collision, the applicant had slept at night on the Thursday but had not slept during the day before he attended work, i.e. he had been awake for 20-21 hours by the time of the collision after working. 3. He was very familiar with the road and route. 4. The distance he had to travel and had travelled was almost 40km and usually took 40 minutes. 5. He had implemented precautions to increase alertness. 1. In relation to (5), the applicant had consumed coffee during his shift before he left to drive home, had the radio on loudly and the driver's window down as he drove in the lower Blue Mountains area at 4am on an August night, which must have provided cold air. In the context of the offence of negligence, it was open to the trial judge to draw the inference which he did, that these actions were precautions against tiredness. 2. Although the Crown failed to establish to the satisfaction of his Honour that the applicant experienced any warning that he was tired or likely to fall asleep, the basis for his Honour's finding of guilt of negligent driving was that the circumstances were such, looked at objectively, that the applicant was driving while affected by tiredness. This carried a risk that he might fall asleep. The issue was not whether there was or was not a warning of the onset of sleep but whether, looked at objectively, it was reasonable for the applicant to hold the belief which he did in the particular circumstances which then prevailed, i.e. not having slept for 21 hours after a heavy week of work and given the distance and length of the journey undertaken. 3. In the context of the lower standard required to establish negligent driving, there was ample evidence for his Honour to conclude that honest and reasonable mistake was negatived in that it was unreasonable for him to believe that he was fit to drive home and that driving in those circumstances was negligent. Ground of Appeal 1 has not been made out. 4. While pleaded as a separate ground of appeal, Ground 2 also contends that the verdict of guilt was unreasonable. In MC v R [2017] NSWCCA 274 Hoeben CJ at CL (with whom Davies and Bellew JJ agreed) said: "90 Under the single ground of appeal, the applicant contends that the guilty verdicts on Counts 1 – 4 are also unreasonable because they are inconsistent with the not guilty verdicts returned by the jury in respect of Counts 5 – 6. The approach to be taken by this Court when such an assertion is made is well established: Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 at 366 [31] – [32]; R v Markuleski at [219] – [221]; TK v R [2009] NSWCCA 151; 74 NSWLR 229 at [2] – [8]; Peiris v R [2014] NSWCCA 58; 240 A Crim R 114 at [1] – [24]; Lepine v R [2017] NSWCCA 83 at [31]; Abbey v R at [38] – [40]; Nguyen v R [2017] NSWCCA 145 at [34] – [47]. 91 Ultimately, the test is one of logic and reasonableness. The applicant must establish that the different verdicts cannot stand together in the sense that no reasonable jury that applied their minds properly to the facts could arrive at that conclusion. If there is a proper way by which the verdicts can be reconciled, assuming a conclusion that the jury performed their functions as required, that conclusion will generally be accepted (MG v R [2017] NSWCCA 14 at [88])." 1. When considering this ground of appeal, it is important to keep in mind the distinction between the seriousness of the offending in the offences of dangerous driving and negligent driving. The departure from the standard of driving required to make out the offence of dangerous driving needs to be significantly more serious than that required to make out the offence of negligent driving. This was made clear by Johnson J in Director of Public Prosecutions (NSW) v Yeo and Anor when his Honour referred to "the degree of negligence appropriate to the offence" when dealing with the hierarchy of driving offences. A similar observation was made by Barwick CJ in McBride v The Queen when his Honour referred to a "serious breach of the proper conduct of a vehicle upon a highway …" in the context of an offence of "speed in a manner dangerous to the public". 2. Accordingly his Honour's findings that the applicant honestly believed that he was safe to drive in the context of the dangerous driving trial and that this was a reasonable belief in the circumstances do not preclude a conclusion that his driving was negligent in all the circumstances. This is because the finding by his Honour in the trial that the applicant honestly believed it was "safe" to drive and that this was reasonable in the circumstances (i.e. the Crown failed to negative either limb of the "defence") had nothing to do with whether the applicant's driving "was negligent in all the circumstances". Whether the driving was negligent was a separate issue to what the applicant's belief was and whether such belief was reasonable. 3. As was made clear in R v Buttsworth [1983] 1 NSWLR 658 at 669 (O'Brien CJ of Cr D with whom Street CJ and Nagle CJ at CL agreed) the test for negligent driving is an objective one: "As to the second contention for the appellant that the negligence must be proved to have been wilful or intentional his Honour was equally of the view that it could not be sustained for as he said (at 64): ' Intention need not be shown at common law, either civil or criminal, unless for instance the charge is murder but of course it may be made essential by statute. However, this statute does not use any term indicating that intention must be proved, the context does not require that it should be implied, and, seeing that the safety of the people using the public roads, which it is the main object of the statute to secure, is as much menaced by unconscious as by intentional negligence, there is no reason why any word should be inserted or understood in the section which is not there already.'" 1. The issue on which the applicant succeeded was that he had an honest and reasonable belief that it was not dangerous for him to drive in the context of the prosecution failure to negative the reasonableness of that belief as applicable to the dangerous driving charge. The issues upon which the applicant succeeded were his subjective belief that it was not dangerous to drive and the reasonableness of that belief in the context of the serious offence of dangerous driving. He succeeded on both issues or both limbs in relation to that defence. 2. In relation to negligent driving, the question strictly formulated is whether in that context, in the particular circumstances prevailing, it was reasonable for him to hold a belief that driving home did not involve a lack of care. His Honour found that such a belief was not reasonable. That finding was well open to his Honour on the facts and was not in conflict with his earlier finding in relation to the dangerous driving charge given the difference in the seriousness of the two offences and the lesser test required to establish negligent driving. Ground of Appeal 2 has not been made out. 3. The orders which I propose are: 1. Leave to appeal against conviction is granted. 2. The appeal against conviction is dismissed. 1. FULLERTON J: I agree with Hoeben CJ at CL that leave to appeal should be granted but the appeal dismissed. I also agree with R A Hulme J that the grounds of appeal raised distinct issues. 2. The first ground of appeal obliges this Court to undertake an independent assessment of the evidence and to determine for itself whether, upon the whole of the evidence, it was open to the tribunal of fact (in this case the judge sitting alone) to find the offence of negligent driving contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW) proved beyond reasonable doubt, that is whether it was open to the trial judge to be satisfied beyond reasonable doubt that the applicant was driving in a manner which involved a departure from the standard of care expected of an ordinary prudent driver in the particular circumstances of the driving episode under consideration. I agree with the conclusion reached by Hoeben CJ at CL and R A Hulme J that there was ample evidence to support a finding that the applicant drove negligently and to find that fact proved to the criminal standard including his Honour's further finding that it was not reasonable for the applicant to hold a belief that driving in all the circumstances did not involve a lack of care. 3. I agree with R A Hulme J that the separate question raised by the second ground of appeal does not give rise to any relevant inconsistency. I gratefully adopt the reasoning of Hoeben CJ at CL at [67]-[70] in also agreeing with his Honour that the second ground of appeal has not been made out. 4. R A HULME J: I agree with Hoeben CJ at CL that leave to appeal should be granted but the appeal be dismissed. 5. In order for there to be a conviction on the charge of negligent driving causing grievous bodily harm, it was necessary for there to be proof in accordance with the terms of s 117(1)(b) of the Road Transport Act 2013 (NSW) and, in the circumstances of this case where the "defence" was raised for which Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28 is usually cited, that: (1) the applicant drove a motor vehicle on a road negligently, (2) that the driving occasioned grievous bodily harm, and (3) that the applicant did not believe on reasonable grounds that his driving was not negligent. 1. The applicant has abandoned any contest as to the second element. Accordingly, the elements the prosecution was required to prove that are relevant in this Court are whether the applicant drove negligently and whether the prosecution disproved the honest and reasonable mistake of fact "defence". 2. The fact that these are distinct issues, both of which the prosecution was required to prove to the criminal standard, is made clear in the judgment of the plurality in Jiminez v The Queen, (1992) 173 CLR 572; [1992] HCA 14 at 582: "If honest and reasonable mistake is not excluded in the case of a statutory offence, it will afford an excuse for what would otherwise be an offence, although the burden of establishing the excuse will in the first place be upon the defendant. The burden on the defendant is evidentiary only, and the prosecution retains the burden of proving guilt by establishing beyond reasonable doubt that the defendant did not honestly believe on reasonable grounds in the existence of facts which, in the circumstances, would take his act outside the operation of the statute." 1. Unfortunately, I cannot agree with the reasoning of Hoeben CJ at CL in that his Honour considers that Grounds 1 and 2 "essentially raise the same issue and can be dealt with together" (above at [50]). The conflation of the two issues can be seen, for example, at [63]-[64] of the judgment. As I see it, Ground 1 raises a distinct question as to whether it was open to the trial judge to be satisfied beyond reasonable doubt that the applicant was driving negligently. Ground 2 raises a quite different issue which concerns the trial judge's consideration of whether the prosecution had disproved (or negatived) the "defence" of honest and reasonable mistake of fact. 2. To be clear, the applicant's submissions involve the following contentions: Ground 1: the evidence was insufficient to prove negligent driving beyond reasonable doubt. (AWS [7]-[8]) Ground 2: there was inconsistency in the reasons for finding that the Crown had not negatived the honest and reasonable mistake "defence" on the dangerous driving charge but had done so on the negligent driving charge. (AWS [11]-[14]) 1. The trial judge did not explicitly state that he was satisfied that the applicant was driving negligently. (Nor did he state a finding of driving in a manner dangerous to a person in relation to the dangerous driving charge, but nothing presently turns on that.) The applicant makes no criticism of that and I take this to be because it is implicit in the manner in which his Honour addressed the honest and reasonable belief "defence" that he was satisfied of the more fundamental element that there was negligent driving. There was no sensible reason for him to be even considering the "defence" if he had a reasonable doubt about the quality of the driving. 2. I am satisfied that it was well open to the judge to be satisfied beyond reasonable doubt that the applicant's driving was negligent. The fact of the matter is that the applicant fell asleep and, in all of the circumstances, that was not a surprising occurrence. Driving in such a state of tiredness that sleep could suddenly occur is clearly something that the judge was entitled to regard as negligent. The Crown concisely put it in a manner with which I agree as follows (CWS at [21]): "Whilst the Crown may not have been able to establish to the satisfaction of the trial judge that the applicant himself experienced any warning of the onset of sleep, nevertheless the circumstances were such that, objectively speaking, the applicant was driving whilst affected by tiredness which carried a risk that he may fall asleep. That risk increased with the length of the journey. The issue is not specifically whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that in the circumstances, his driving was negligent: Jiminez at 580." 1. For these reasons I agree that Ground 1 was not made out. 2. As to Ground 2, I agree with what appears in the judgment of Hoeben CJ at CL at [70] and therefore that this Ground is not made out as well. ********** 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: 15 October 2018