Jiminez v R [1992] HCA 14; (1992) 173 CLR 572 (6 May 1992)

HIGH COURT OF AUSTRALIA

JIMINEZ v. THE QUEEN [1992] HCA 14; (1992) 173 CLR 572
F.C. 92/012

Criminal Law

High Court of Australia
Mason C.J.(1), Brennan(1), Deane(1), Dawson(1), Toohey(1), Gaudron(1) and McHugh(2) JJ.

CATCHWORDS

Criminal Law - Dangerous driving occasioning death through impact with motor vehicle - Ingredients of offence - Driver asleep in period immediately preceding impact - Whether "driving" - Relevant period of driving - Crimes Act 1900, s. 52A.

HEARING

1992, February 5; May 6. 6:5:1992

DECISION

MASON C.J., BRENNAN, DEANE, DAWSON, TOOHEY AND GAUDRON JJ. The applicant, Michael Jiminez, seeks special leave to appeal against his conviction of culpable driving for which he was sentenced to six months' imprisonment to be served by way of periodic detention.

2. At about 11.00 p.m. on 13 June 1988, the applicant set out to travel south in his BMW sedan from the Gold Coast in Queensland to Sydney in New South Wales. He was accompanied by three female companions, one of whom was Janelle May Stephanoni. Before setting out the applicant slept for four hours from about five o'clock in the afternoon. Stephanoni first drove the car for about 400 kilometres during which time the applicant slept. At about 3.30 a.m. on 14 June 1988, the applicant took over the driving of the car. At about 6.00 a.m. at Eungai Creek on the Pacific Highway approximately 30 kilometres north of Kempsey, the car failed to take a moderate right-hand curve in the highway. It travelled on to the eastern gravel shoulder, continued on and collided with a tree and then with two other trees. Stephanoni, who was sitting in the front passenger seat and not wearing a seat-belt, was killed. The other two passengers were in the rear seat.

3. At the scene of the accident there were four wheel marks commencing on the eastern gravel shoulder and extending south for some thirty-seven metres. The marks ended at the base of the first tree. About ten metres south of this tree were the two other trees against which the car had come to rest. There were patches of fog in the low-lying areas along the highway.

4. The applicant was taken to a local hospital where he was treated. Subsequently he was taken to the home of a Salvation Army minister who had attended the scene of the accident and he slept for some three to four hours.

5. A police constable, who also attended the scene of the accident, asked the applicant what had happened. He replied: "I went to sleep." Subsequently a record of interview with the applicant was made which contained the following questions and answers:
"Q. How did the collision occur?
A. I really don't know. Before the accident there was a
lot of fogs in the road, I lost control of the car.
Everybody was asleep, the three girls and then it
happened. I was just for a second. I lost control when I
fell asleep. I'm not sure what happened.
Q. What is the last thing you remember before losing
control?
A. I was in the road the last thing I remember. Before the
accident I was going down a hill. The road goes around to
the right and then I lost control of the car. I hit the
tree.
Q. What speed were you travelling at immediately prior to
losing control of the car?
A. Between 80 and 90 kms.
...
Q. In answer to Q.29 (the first question quoted above) you
said in part, I lost control when I fell asleep, were you
feeling tired prior to the collision?
A. I don't know what happened, I was driving, I was
thinking about stopping in the next town. The heater was
on.
...
Q. What caused your vehicle to run off the road?
A. I don't know why, I just lost control."
6. At the hospital the applicant was asked what happened by another policeman. He replied:

"Janelle drove from the Gold Coast. She drove for about
400 kms. I took over driving around Coffs Harbour
somewhere. I think I was travelling around a right hand
curve and on to a straight section of road. I think I was
travelling 80 to 100 kph. I think I must have gone to
sleep. I woke up and the car was out of control to the
left side of the road. I tried to control the car but I
think I hit a tree."

7. In an unsworn statement at his trial the applicant said that at the time of the accident he intended to stop at the next main town for breakfast and that he did not feel like sleeping at all. He continued:

"Suddenly my car was off the road. I think I must have
closed my eyes for a second. When I opened my eyes the car
was off the road and I lost control."

8. The offence of culpable driving is created by s.52A of the Crimes Act 1900 (N.S.W.) and is relevantly as follows:

"(1) Where the death of .. any person is occasioned
through:
(a) the impact with any object of a motor vehicle
in or on which that person was being conveyed (whether as
a passenger or otherwise);
...
and the motor vehicle was at the time of the impact ...
being driven by another person:
...
(f) at a speed or in a manner dangerous to the
public,
the person who was so driving the motor vehicle shall be
guilty of the misdemeanour of culpable driving.
...
(3) It shall be a defence to any charge under this section
that the death .. was not in any way attributable .. to
the speed at which or the manner in which the vehicle was
driven."

The only feature of the applicant's driving that is said to bring it within s.52A is that, on the evidence, it was open to a jury to conclude that he was, while driving the car, tired and drowsy and had fallen asleep.

9. If the applicant did fall asleep, even momentarily, it is clear that while he was asleep his actions were not conscious or voluntary (an act committed while unconscious is necessarily involuntary) and he could not be criminally responsible for driving the car in a manner dangerous to the public. The offence of culpable driving is, in this respect, no different to any other offence and requires the driving, which is part of the offence, to be a conscious and voluntary act (1) R. v. Coventry [1938] HCA 31; (1938) 59 CLR 633, at p 638.

10. Upon the evidence, it appears that there was a short period of time after the applicant fell asleep and before the impact during which the applicant awoke and attempted to regain control of the car. It was not suggested that, while he was attempting to regain control, the applicant was driving dangerously. Drivers are often confronted with an emergency which requires them to take steps to avoid an accident. Even if the evasive action fails to avoid the accident it does not necessarily amount to driving in a dangerous manner (2) ibid., at p 638; see also Simpson v. Peat (1952) 2 QB 24, at p 28.

11. The offence of culpable driving as it applies in the present case requires a motor vehicle to have been driven in a manner dangerous to the public at the time of the impact which occasioned death. Even if the motor vehicle was not being driven dangerously at the precise moment of impact, a preceding period of driving in a dangerous manner may be so nearly contemporaneous with the impact as to satisfy this element of the offence. Contemporaneity is a question for the jury (3) See McBride v. The Queen [1966] HCA 22; (1966) 115 CLR 44, at pp 47, 51, 52.

12. In the South Australian case of Kroon (4) (1990) 52 A Crim R 15, at p 18, King C.J. observed that an offence such as culpable driving requires the relevant driving to have been voluntary and that driving while asleep does not constitute a voluntary act. Thus, he said, "a driver cannot be convicted of causing death or bodily injury by dangerous driving in respect of a period during which the driver is asleep". But he went on to say (5) ibid., at pp 18-19.

"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 may be 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 (McBride, per Barwick C.J. at 51) to be regarded as
the cause of the death or bodily injury.
.. The cases must be rare in which a driver who falls
asleep can be exonerated of driving without due care at
least, in the moments preceding sleep."

As King C.J. recognizes, where the question is whether a driver who falls asleep at the wheel is guilty of driving in a manner dangerous to the public, the relevant period of driving is that which immediately precedes his falling asleep. Not only must the period be sufficiently contemporaneous with the time of impact to satisfy the requirement of s.52A but the driving during that period must be, in a practical sense, the cause of the impact and the death. The relevant period cannot be that during which the driver was asleep because during that time his actions were not conscious or voluntary. And, for the reasons which we have given, if the driver's actions upon waking up amount to no more than an attempt to avoid an accident, it cannot be that period of driving.

13. The manner of driving encompasses "all matters connected with the management and control of a car by a driver when it is being driven" (6) R. v. Coventry (1938) 59 CLR, at p 639. For the driving to be dangerous for the purposes of s.52A there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention (7) McBride v. The Queen (1966) 115 CLR, per Barwick C.J. at pp 50, 51; Reg v. Buttsworth (1983) 1 NSWLR 658, at pp 686-687. Although a course of conduct is involved it need not take place over any considerable period (8) See R. v. Coventry (1938) 59 CLR, at p 638. Nor need the conduct manifest itself in the physical behaviour of the vehicle. If the driver is in a condition while driving which makes the mere fact of his driving a real danger to the public, including the occupants of the motor vehicle, then his driving in that condition constitutes driving in a manner dangerous to the public. In the same way, driving a motor vehicle in a seriously defective condition may constitute driving in a manner dangerous to the public (9) See Giorgianni v. The Queen [1985] HCA 29; (1985) 156 CLR 473, at p 499, even though the defect does not manifest itself until such time as the vehicle is out of the control of the driver. But it should be emphasized, and it must always be brought to the attention of the jury, that the condition of a driver must amount to something other than a lack of due care (10) McBride v. The Queen (1966) 115 CLR, per Barwick C.J. at p 50, before it can support a finding of driving in a manner dangerous to the public. Driving in that condition must constitute a real danger to the public. As Barwick C.J. said in McBride v. The Queen(11) ibid., at pp 49-50.

"The section speaks of a speed or manner which is
dangerous to the public. This imports a quality in the
speed or 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 to a human being or human beings who
as a member or as members of the public may be upon or in
the vicinity of the roadway on which the driving is taking
place."

It follows that 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. The various matters which bear on that question, and the way in which they bear on it, should be carefully drawn to the attention of the jury.

14. In Hill v. Baxter(12) (1958) 1 QB 277, the respondent's motor-van behaved erratically after a period during which it had apparently been driven skilfully. The defendant was charged with the offence of driving in a dangerous manner. He could remember nothing after a certain point. Lord Goddard C.J. said(13) ibid., at pp 282-283:

"There was in fact no evidence except that of the
respondent, and while the justices were entitled to
believe him, his evidence shows nothing except that after
the accident he cannot remember what took place after he
left Preston Circus. This is quite consistent with being
overcome with sleep or at least drowsiness. That drivers
do fall asleep is a not uncommon cause of serious road
accidents, and it would be impossible as well as
disastrous to hold that falling asleep at the wheel was
any defence to a charge of dangerous driving. If a driver
finds that he is getting sleepy he must stop.
.. I agree that there may be cases where the
circumstances are such that the accused could not really
be said to be driving at all. Suppose he had a stroke or
an epileptic fit, both instances of what may properly be
called acts of God; he might well be in the driver's seat
even with his hands on the wheel, but in such a state of
unconsciousness that he could not be said to be driving. A
blow from a stone or an attack by a swarm of bees I think
introduces some conception akin to novus actus
interveniens. .. In the present case I am content to rest
my judgment on the ground that there was no evidence which
justified the justices finding that he was not fully
responsible in law for his actions, and that his intention
was immaterial as there was here an absolute prohibition."

15. The offence of driving at a speed or in a manner dangerous to the public(14) See Traffic Act 1909 (NSW), s 4(1), or the more serious but related offence of culpable driving, is not an absolute offence, at all events in the sense in which that term is used in this country. But we shall return to that later. If, in the passage which we have set out above, his Lordship was saying that falling asleep at the wheel is inevitably preceded by a period of drowsiness such that the driver has an opportunity to stop, then we are, with respect, unable to agree. That may be a convenient assumption upon the view that "it would be impossible as well as disastrous to hold that falling asleep at the wheel was any defence to a charge of dangerous driving", but it is not otherwise supportable. No doubt it may be proper in many cases to draw an inference that a driver who falls asleep must have had warning that he might do so if he continued to drive or that otherwise he knew or ought to have known that he was running a real risk of falling asleep at the wheel. But it does not necessarily follow that because a driver falls asleep he has had a sufficient warning to enable him to stop(15) See Dennis v. Watt (1943) 43 SR(NSW) 32; Kroon (1991) 52 A Crim R 15.

16. Further, the passage which we have quoted may suggest that a person while asleep is capable of driving consciously and voluntarily. Such is clearly not the case and if that is the suggestion it appears to be made upon the basis that a driver can avoid lapsing into sleep, whereas he cannot avoid other states of unconsciousness or involuntariness, such as those induced by epilepsy or being stung by a swarm of bees. But if a person's condition is such that his actions are unconscious or involuntary, it does not matter what the cause is: he cannot be found guilty of an offence, whether statutory or otherwise, unless the acts which constitute it have been done voluntarily(16) See Reg. v. O'Connor [1980] HCA 17; (1980) 146 CLR 64. As we have said, a driver who drives when tired or drowsy may, depending upon all the circumstances, be guilty of driving in a manner dangerous to the public. But if he does fall asleep, his actions during the period of sleep are neither conscious nor voluntary.

17. A statutory offence which imposes absolute liability is one which, in addition to excluding the requirement of mens rea, also excludes a defence of honest and reasonable mistake (17) See He Kaw Teh v. The Queen [1985] HCA 43; (1985) 157 CLR 523, at p 590. In a well-known passage in Proudman v. Dayman(18), (18) [1941] HCA 28; (1941) 67 CLR 536, at p 540. Dixon J. drew a distinction between mens rea as an ingredient of an offence and an honest and reasonable belief in a state of facts which, if they existed, would make a defendant's act innocent. 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 (19) He Kaw Teh v. The Queen (1985) 157 CLR, at pp 534-535, 573-575, 582 and 592-594. See also Gibbon v. Fitzmaurice (1986) 23 ACrim R 12, at p 19; Chard v. Wallis (1988) 12 NSWLR 453, at pp 455-456; and Caralis v. Smyth (1988) 34 ACrim R 193, at pp 197-200. The majority of the Court in R. v. Coventry recognized that the defence of honest and reasonable mistake was available to a charge under the equivalent of s.52A in South Australia. In that case the majority said (20) (1938) 59 CLR, at p 638:

"No doubt the language of the section does not exclude a
defence of mistake of fact on reasonable grounds or of
involuntariness (for example, interference by another
person with the driving of the car), and perhaps there may
be other exceptional excuses, based on special facts, to
which a state of mind may not be immaterial. But, speaking
generally, the expression 'driving at a speed, or in a
manner, which is dangerous to the public' describes the
actual behaviour of the driver and does not require any
given state of mind as an essential element of the
offence."

18. In England the courts have not taken up the defence of honest and reasonable mistake and see themselves as having to decide between an offence requiring mens rea to be proved as an ingredient and absolute liability which excludes guilty intent entirely. Nevertheless, the Court of Appeal has rejected the suggestion of Lord Goddard C.J. that the offence of dangerous driving is an absolute offence. They did so in Gosney (21) (1971) 55 Cr.App R. 502. That was a case in which the appellant drove in the wrong direction upon one carriageway of a dual highway. The appellant wished to prove that there was no indication that the right-hand turn she made into the carriageway was prohibited and that there was nothing to indicate to a competent and careful driver in all the circumstances that she was about to drive or was driving in the wrong direction. She was stopped from leading this evidence at first instance, but the Court of Appeal held that she was entitled to do so, saying that "fault" on the part of the driver was an element of the offence of driving in a dangerous manner (22) ibid., at p 508; see also Spurge (1961) 45 Cr App R 191. To our eyes, what the appellant was attempting to do in Gosney was to establish an honest and reasonable mistake, a defence which, in this country, makes it unnecessary to introduce fault as an element of that offence. Driving in a manner dangerous to the public is at once both the offence and, if it is relevant, the fault, but it will be a defence to establish an honest and reasonable mistake as to facts which if true would exculpate the driver. Perhaps the most obvious example is where a driver is unaware of the defective condition of his vehicle and believes it upon reasonable grounds to be in good working order. And the same issue is raised when, in a case like the present where the dangerous manner of the driving is said to consist in the likelihood of going to sleep, a driver claims that he had no warning of the onset of sleep.

19. It follows from what has been said above that it was necessary for the prosecution in the present case 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, however, also open to the jury to find that the applicant honestly and reasonably believed that, in all the circumstances, it was safe to drive. Apart from any inference that might be drawn from the fact that the applicant had fallen asleep, there was little in the evidence to support a finding that the applicant had felt drowsy or that he had reason to believe that he was tired. He had had four hours' sleep shortly before setting out on the trip and a further period of up to three hours while the deceased woman drove the car. He had not been driving for an excessive period before the accident. There was no evidence before the jury that he had consumed any alcohol or drugs. He was thinking of stopping at the next town, but that could be explained by his statement that he intended to have breakfast there. The fact that he slept for some hours after the accident could, in the light of the other evidence including evidence that he was emotionally upset and affected by grief, scarcely found an inference that he had had insufficient sleep beforehand. In these circumstances, the inference that the applicant believed that, in all the circumstances, it was safe to drive might have been drawn by the jury from the very fact of his driving. The absence of any warning of the onset of sleep, if the jury found that there had been none, laid a foundation for that being an honest and reasonable belief. Lack of warning as to the onset of sleep is only one of a number of circumstances that may bear on the question whether a driver honestly and reasonably believed that it was safe for him to drive. Ordinarily, the circumstances which bear on whether the driving was dangerous will also bear on this question.

21. If, in a case based on tiredness, there is material suggesting that the driver honestly believed on reasonable grounds that it was safe for him to drive, the jury must be instructed with respect to that issue. In particular, they must be told that if they conclude that the driving was a danger to the public, they must also consider whether the driver might honestly have believed on reasonable grounds that it was safe for him to drive. And, of course, they must be instructed in appropriate terms that the onus of negativing that defence rests with the prosecution. That did not happen in this case, presumably because neither counsel nor the trial judge appreciated the real nature of the issue raised.

22. In the present case, where there was evidence that the applicant fell asleep at the wheel and there was no real evidence that he had any warning of the onset of sleep, it was also essential for the trial judge to identify the period of driving during which it was alleged that the driving was dangerous. Further, it was essential that the jury be informed that if the applicant fell asleep, his actions while he was asleep were not voluntary and could not amount to driving in a dangerous manner. The nearest the learned trial judge came to identifying the relevant period of driving in his charge to the jury was in the following passage:

"The issue is, was his manner of driving when his car left
the road dangerous to the public? The Crown say to you
that it seems clear he became tired, he closed his eyes
and the car left the road."

That passage is entirely equivocal and, in any event, does not raise any question of voluntariness.

23. The applicant's counsel raised with the trial judge the fact that he failed to allude to the "involuntary nature of .. the onset of the sleeping episode". The trial judge suggested that counsel had not alluded to that matter either. After a rejoinder by counsel that he did so in so many words although he did not use the word "involuntary", the matter was allowed to rest. There was no redirection. Thus objection was taken (although hardly pressed) to the omission in the charge. In these circumstances there was a defect in the charge in an important respect and that defect amounted to a miscarriage of justice.

24. Special leave to appeal should be granted. The appeal must be allowed and the conviction quashed. We have given careful consideration to the question whether a new trial should be ordered. It is now more than three and a half years since the accident occurred. The applicant has already been subjected to the expense, strain and inconvenience of a trial. The case against him was not a compelling one. There was no evidence that the applicant was affected by alcohol or drugs. There was evidence to the effect that he had had adequate sleep before commencing to drive and that he had had no prior warning, or otherwise ought to have known, that he was about to fall asleep. The sentence imposed, upon the applicant's conviction, was one of periodic detention which, if it had been served, would by now have expired. In all these circumstances, we have reached the conclusion that it would be inappropriate to order a retrial.

McHUGH J. I would allow this appeal on the grounds that the learned trial judge misdirected the jury and that the misdirections amounted to a miscarriage of justice. The facts and the terms of s.52A of the Crimes Act 1900 (N.S.W.) are set out in the majority judgment.

2. Having regard to the concessions which the Crown made in this Court, I think that the learned trial judge erred in his charge to the jury in that:

1. he did not direct the jury that, for the purpose of s.52A,
the vehicle was not "being driven" by the applicant during any
period, however short, in which the applicant was asleep;
2. he did not direct the jury that the offence was committed
only if the vehicle was being driven in a manner dangerous to the
public contemporaneously with the impact;
3. he did not isolate for the jury the particular features of
the driving of the applicant which, as a matter of law, could be in
breach of s.52A and did not relate those features "to the criteria
to be applied and the distinctions to be observed in determining
whether any particular .. manner of driving can have the quality,
intrinsic or occasional, of being dangerous to the public"
(23) McBride v. The Queen (1966) 115 CLR 44, at p 50; and
4. he did not instruct the jury that the applicant could only
be convicted of the charge if he knew or ought to have known that
there was a real risk of his falling asleep while driving.

"Being driven"

3. On the hearing of the appeal in this Court, Mr Howie Q.C., for the Crown, accepted that, on a charge under s.52A, there must be a voluntary act of driving. In his written submissions, Mr Howie Q.C. also conceded that a "driver who is asleep is not then driving in a manner dangerous to the public". But, basing himself on the decision of the Court of Criminal Appeal of South Australia in Kroon (24) (1990) 52 A Crim R 15, at p 18, he contended that a "driver who falls asleep may have been driving in a manner dangerous to the public .. if he knew or ought to have known that there was a significant risk of (his) falling asleep".

4. The concession by the Crown that a person who is "asleep" cannot drive in a manner dangerous to the public is debatable. For the purpose of s.52A and other laws regulating the driving of vehicles, I think that it is at least arguable that, upon the proper construction of such legislation, a vehicle is "being driven" by a person if he or she falls asleep at the wheel of the car "for a second", as the applicant alleged he did on this occasion. No doubt it would be inconsistent with the ordinary usage of the word "driving" to contend that a person is driving while slumped unconscious over the steering wheel (25) Hill v. Baxter (1958) 1 QB 277, at p 283. But see Purvis v. Hogg (1969) Crim L 379. Nevertheless, I do not think that it is inconsistent with ordinary usage to say that a person is "driving" a vehicle during a period in which he or she drifts off to sleep momentarily while remaining upright in the driver's seat with his or her hands and feet on the controls (26) Cordwell v. Carley (unreported, Supreme Court of New South Wales, Common Law Division, 8 August 1985), at p 19. A vehicle is "being driven" by a person when "he is in the driving seat or in control of the steering wheel and also has something to do with the propulsion" (27) Roberts (1964) 48 Cr App R 296, at p 299; MacDonagh (1974) 59 Cr App R 55, at p 57. See McQuaid v. Anderton (1981) 1 WLR 154, at pp 155-156; Hampson v. Martin (1981) 2 NSWLR 782, at pp 796-797. It is a matter of degree whether a person who has "dozed off" has functioned at such a low cognitive level for such a length of time that it can fairly be said that the vehicle was no longer "being driven" by that person. In some cases, the loss of consciousness of the "driver" may be such that it cannot be said that that person was driving the vehicle; but in other cases, the loss of consciousness may be so transient that it can be said that the vehicle was "being driven" by that person.

5. The policy of s.52A is to punish drivers for their actual behaviour "at the time of impact". The section "does not require any given state of mind as an essential element of the offence" (28) R. v. Coventry [1938] HCA 31; (1938) 59 CLR 633, at p 638. Consequently, a person continues to drive for the purpose of the section even though that person has lost control of the vehicle because his or her mind has wandered to a subject remote from driving or has lost control because of excessive speed or some other external matter concerned with the control and management of the vehicle. The policy of the section, therefore, gives no support for drawing any distinction between the driver who is inattentive or who, though attentive, is unable to control the vehicle and the driver who is unable to control the vehicle because he or she has "dozed off".

6. I do not think that anything in the foregoing discussion is inconsistent with the basic principle of the criminal law that an act or omission of a person cannot be made the subject of a criminal charge unless the act or omission was voluntary (29) Ryan v. The Queen [1967] HCA 2; (1967) 121 CLR 205, at p 213; Reg. v. O'Connor [1980] HCA 17; (1980) 146 CLR 64, at pp 76-77, 80. The issue under s.52A is not whether that general principle applies to the statute - clearly it does; the issue is whether upon the proper construction of that section the vehicle was "being driven" by the accused "at the time of impact".
Falling asleep

7. The approach of the Crown on this appeal, however, requires that this case be examined on the basis that the acts and omissions of a person, during any period in which he or she is asleep, cannot form the subject of a charge under s.52A of the Crimes Act. Counsel for the applicant also accepted that the law on the subject was correctly stated by the Court of Criminal Appeal of South Australia in Kroon. In that case King C.J. said (30) (1990) 52 A Crim R, at p 18:

"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 may be 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 (31) McBride (1966) 115 CLR, at p 51.
to be regarded as the cause of the death or
bodily injury."

That being so, the applicant could only be convicted of culpable driving under that section if he drove in a manner dangerous to the public, prior to his falling asleep, and if that manner of driving was, in a practical sense, contemporaneous with the impact between his vehicle and the tree.
The summing up

8. The summing up in the present case did not confine the relevant act of driving to the period, if any, when the applicant knew or ought to have known that there was a real risk that he might fall asleep if the vehicle continued in motion. Nor did the summing up draw the jury's attention to the need for the manner of driving to be contemporaneous with the impact causing death. The learned trial judge directed the jury as to the meaning of the words "manner dangerous to the public" in accordance with the judgment of Barwick C.J. in McBride (32) ibid., at pp 49-50. Significantly, however, although on a number of occasions his Honour made use of the phrase "at the time", he did not add the words "of the impact". At the very least, the summing up was ambiguous on the vital issue of "the contemporaneity, upon which the section insists, of the driving which is in breach of the section and the impact by or through which the person is killed or injured" (33) ibid., at p 47.

9. Furthermore, his Honour's summing up left it open to the jury to convict the applicant on the basis that the car was being driven in a manner dangerous to the public from the time the car left the road. After stating that he would "review in a broad fashion" the arguments of counsel, his Honour said:

"The Crown say that it is for you to assess the Accused's
driving of the BMW car when it left the road and hit a
tree. It is for you to assess whether it was in all the
circumstances in a manner dangerous."

Later his Honour said:

"The issue is, was his manner of driving when his car left
the road dangerous to the public?
The Crown say to you that it seems clear he became tired,
he closed his eyes and the car left the road."

In dealing with the submissions of counsel for the defence, his Honour said:

"Counsel for the Accused reminds you that the Accused had
no idea that he would fall asleep for the split second as
he obviously did ...
Evaluating the whole of the evidence the Defence counsel
says that there was a sudden onset of sleep. It is not as
though he acknowledges feeling sleepy prior to the
accident and was fighting sleep for many kilometres."

10. In the Court of Criminal Appeal, Lee C.J. at C.L. correctly commented that the overall effect of his Honour's summing up was "to leave it to the jury to acquit the appellant if they were prepared to accept that the appellant had no warning of impending sleep". Mr Howie Q.C. went further. He submitted that the effect of the summing up was that the applicant should be acquitted if he had no warning of impending sleep. However, at no stage did his Honour tell the jury that they were bound to acquit the applicant if they concluded that he had had no warning of impending sleep. To the contrary, after referring to his "selective" summary of the arguments, the learned judge told the jury that it was "for you and you alone to determine what is significant in this trial and for you and you alone to attribute to those matters such importance as you consider they deserve". This direction made express what was already implicit in his Honour's directions: it was a matter for the jury whether they accepted the factual basis of the submission of counsel for the defence and, if they did, whether that entitled the accused to be acquitted. Having regard to the way in which the case for the Crown was left to the jury, it would occasion no surprise if the jury convicted the applicant even though they were not convinced beyond reasonable doubt that the applicant knew that there was a risk that he might fall asleep.

11. Accordingly, because of the concessions of law which the Crown thought it proper to make in this Court, the summing up contained significant misdirections. It is apparent that at the trial the Crown did not dispute that the vehicle left the road as the result of the applicant's falling asleep. Moreover, it was common ground in this Court that the "driving" of the applicant while asleep was an involuntary act. Yet the directions of the learned judge left it open to the jury to convict the accused in respect of "his manner of driving when his car left the road". Consequently, the summing up left it open to the jury to convict the applicant in respect of an act for which he was not legally responsible. Having regard to the concession which the Crown made in this Court, the only case which the Crown could put against the applicant was that he was guilty of driving in a manner dangerous to the public because he knew or ought to have known that there was a real risk that he would fall asleep. But that case was never put to the jury. To this misdirection must be added his Honour's failure to draw to the jury's attention the need for the contemporaneity of the dangerous driving and impact.

12. By reason of the summing up, the trial has miscarried. This is so even though counsel for the defence, after raising the issue of voluntariness, did not press for a direction on that issue. Nevertheless, the case for the Crown at the trial was so radically different from the only case which could be put on the concessions of the Crown in this Court that there has been no trial according to law. The conviction must be set aside.
The appropriate order

13. A matter which has given me concern is whether this Court should order a new trial. It was open to the jury to find that the applicant knew that there was a risk that he might fall asleep. When asked by a police officer whether he was "feeling tired prior to the collision", the applicant replied:

"I don't know what happened, I was driving, I was thinking
about stopping in the next town. The heater was on."

At the trial, the applicant asserted that he was only thinking about stopping in the next town because he wanted to have breakfast. However, no mention of having breakfast was made in his record of interview. The references to the heater being on and stopping in the next town in the context of a question concerning whether he was feeling tired prior to the collision tell powerfully against the applicant. Those references carry the implied admission that the applicant had become tired and was thinking of resting at the next town. Why else would he mention those two matters in answer to a question concerning whether he was feeling tired prior to the collision?

14. But the sufficiency of evidence to support the charge is not the only factor to be considered. Other factors lead to the conclusion that, despite there being evidence which, if accepted, would make out a charge of culpable driving, a new trial should not be ordered. First, as a general rule, a new trial should not be ordered to enable the Crown to make a new case at a second trial (34) R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511, at p 518; King v. The Queen [1986] HCA 59; (1986) 161 CLR 423, at p 433. In the present case, a second trial would allow the Crown to make a case different from that which it put to the jury at the first trial. Secondly, the events which gave rise to the charge occurred nearly four years ago, and it is nearly two years since the applicant was convicted. Thirdly, the applicant was sentenced to six months imprisonment to be served by way of periodic detention. Prior to being granted bail pending his appeal to the Court of Criminal Appeal, the applicant served four weekends in gaol pursuant to the order of the learned trial judge. Fourthly, the Crown has always accepted that the accident which gave rise to the charge of culpable driving arose only from the applicant's falling asleep. The Crown has not suggested that speed or alcohol played any part in the car leaving the road. When all the circumstances are taken into account, the interests of justice do not require that the applicant should be put to the expense, stress and inconvenience of a new trial so that the Crown can put a case which it did not put at the first trial. The general rule that a new trial will not be ordered so that the Crown can put a different case at a second trial must prevail.

15. I agree with the orders proposed.

ORDER

Special leave to appeal granted.

Appeal allowed.

Set aside the orders of the Court of Criminal Appeal of New South Wales and in lieu thereof allow the appeal against conviction to that Court, quash the conviction and enter a verdict of acquittal.