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Court of Criminal Appeal 15 October 2018

Prineas v R

[2018] NSWCCA 221

Traffic & driving
CRIMINAL LAW CONVICTION APPEAL JUDGE ALONE TRIAL NO INCONSISTENCY APPEAL DISMISSED.

Citation: Prineas v R [2018] NSWCCA 221
Court: Court of Criminal Appeal, NSW
Date: 15 October 2018
Judges: Hoeben CJ at CL; Fullerton J; R A Hulme J

Background

The appellant was a security guard who drove home along Hawkesbury Road, Springwood, in the early hours of 29 August 2015 after finishing a night shift. Within one to two kilometres of his home, he fell asleep at the wheel. His vehicle crossed onto the wrong side of the road and collided head-on with an oncoming vehicle, causing grievous bodily harm to the other driver.

The appellant was charged with dangerous driving occasioning grievous bodily harm under s 52A(3)(c) of the Crimes Act 1900 (NSW). The trial judge, sitting without a jury at Penrith District Court, acquitted him of that charge. The Crown then relied on the same evidence for a backup charge of negligent driving occasioning grievous bodily harm under s 117(1)(b) of the Road Transport Act 2013 (NSW). The trial judge found the appellant guilty of that charge and imposed a fine of $1,000, a 12-month good behaviour bond, and a 12-month driving disqualification.

The appellant sought leave to appeal his conviction to the Court of Criminal Appeal. Given the procedural importance of the matter, the Chief Justice directed that a full court hear the appeal rather than a single judge.

  • Whether the evidence was sufficient to support a verdict of guilty of negligent driving occasioning grievous bodily harm beyond reasonable doubt (Ground 1).
  • Whether the verdict of guilty for negligent driving was inconsistent with the acquittal for dangerous driving, where the trial judge found the Crown had not disproved the honest and reasonable mistake of fact "defence" on the more serious charge but had disproved it on the lesser charge (Ground 2).

Decision

Ground 1: Sufficiency of evidence. The Court held it was well open to the trial judge to be satisfied beyond reasonable doubt that the appellant drove negligently. The relevant circumstances included the appellant's long night shift, evidence from a workmate that he appeared tired during work, his drive of approximately 48 kilometres at 4am, and the fact that he fell asleep so close to home. The Court emphasised that the question was not whether the appellant received a subjective warning that sleep was imminent, but whether he was objectively so tired that driving in those circumstances was negligent. The Court found there was ample evidence supporting that conclusion.

The honest and reasonable mistake "defence". The negligent driving charge required the prosecution to prove not only that the driving was negligent, but also to disprove, beyond reasonable doubt, that the appellant held an honest and reasonable belief that his driving was not negligent (the defence drawn from Proudman v Dayman (1941) 67 CLR 536 and applied in Jiminez v The Queen (1992) 173 CLR 572). The trial judge found that the objective circumstances made it unreasonable for the appellant to believe his driving was not lacking in care. Ground 1 was not made out.

Ground 2: Inconsistency between verdicts. The appellant argued that the acquittal on the dangerous driving charge and the conviction for negligent driving were logically inconsistent, because both outcomes turned on whether the Crown disproved the honest and reasonable mistake defence. The Court rejected this argument. Dangerous driving and negligent driving involve different standards of driving conduct, and the trial judge's reasoning showed no relevant inconsistency: the two offences required proof of different qualities of driving, and it was open to the judge to be satisfied the Crown proved negligence but not the higher standard of dangerous driving. R A Hulme J noted that Grounds 1 and 2 raised distinct issues rather than a single question, but all three judges agreed that neither ground succeeded.

Orders Made

  • Leave to appeal against conviction is granted.
  • The appeal against conviction is dismissed.

Key Takeaways

  • An acquittal for dangerous driving occasioning grievous bodily harm does not, without more, render a subsequent conviction for negligent driving occasioning grievous bodily harm on the same facts legally inconsistent, because the two offences require proof of different standards of driving conduct.
  • Under the principles in Jiminez v The Queen, the prosecution must prove beyond reasonable doubt both that the driving was negligent and that the defendant did not hold an honest and reasonable belief that the driving was not negligent. These are distinct elements, and a court must address each separately.
  • Sufficient evidence existed to support the negligent driving conviction where the appellant was objectively fatigued after a night shift and drove a substantial distance in the early hours of the morning before falling asleep, even without proof that he received a subjective warning of impending sleep.
  • In dismissing the appeal, all three members of the Court confirmed that the relevant inquiry on fatigue-related driving is an objective one: whether the driver was so tired that driving in all the circumstances involved a departure from the standard of care of an ordinary prudent driver.
  • Procedurally, the decision confirms that appeals in matters under s 117(1)(b) of the Road Transport Act 2013 (NSW) may, where sufficiently important, be referred by a single Supreme Court judge to a full Court of Criminal Appeal under s 5AD(3) of the Criminal Appeal Act 1912 (NSW).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A
- Road Transport Act 2013 (NSW), s 117(1)(b)
- 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

Cases
- Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28
- Jiminez v The Queen [1992] HCA 14; 173 CLR 572
- M v The Queen [1994] HCA 63; 181 CLR 487
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Filippou v The Queen [2015] HCA 29; 256 CLR 47
- McBride v The Queen [1966] HCA 22; 115 CLR 44
- Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953; 188 A Crim R 82
- R v Buttsworth [1983] 1 NSWLR 658
- R v Robert Borkowski [2009] NSWCCA 102
- MC v R [2017] NSWCCA 274
- Kroon v R (1990) 55 SASR 476