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Court of Criminal Appeal 11 August 2021

Rummukainen v R

[2021] NSWCCA 188

Traffic & driving
CRIME DRIVING OFFENCES DANGEROUS DRIVING OCCASIONING DEATH NO EVIDENCE THAT APPLICANT FELL ASLEEP UNFOUNDED IN ANY EVIDENCE TRIAL

Citation: Rummukainen v R [2021] NSWCCA 188
Court: NSW Court of Criminal Appeal
Date: 11 August 2021
Judge(s): Simpson AJA, Garling J (dissenting), N Adams J

Background

The applicant was convicted in the District Court on one count of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900 (NSW). The incident occurred in November 2016 on a rural road in New South Wales, when the applicant's southbound vehicle failed to follow a left-hand curve, crossed an unbroken centre line, and collided with a vehicle travelling in the opposite direction. The driver of that vehicle died in the collision.

Relevant circumstances included that the applicant had consumed some alcohol earlier that day, though experts could not establish whether his blood alcohol level was above or below the legal limit at the time of impact. Two to three minutes before the collision, the applicant had completed a ten-minute telephone call with his father. The applicant himself had no significant memory of the events.

At trial, the Crown's case was straightforward: the applicant's vehicle was on the wrong side of the road with no apparent explanation, and that fact alone demonstrated dangerous driving. It was only in defence counsel's closing address, not during the evidence phase, that the possibility of the applicant having momentarily fallen asleep was first raised. The trial judge directed the jury to disregard that submission on the basis that there was no evidence supporting it. The applicant sought leave to appeal against his conviction on the sole ground that the trial judge erred in law by removing the sleep possibility from the jury's consideration.

  • Whether the defence of honest and reasonable mistake of fact, specifically that the applicant honestly and reasonably believed he was fit to drive (as established in Jiminez v The Queen and Proudman v Dayman), was sufficiently raised by the evidence to require the trial judge to leave it to the jury.
  • Whether the possibility that the applicant had momentarily fallen asleep was a rational inference available on the evidence, such that the jury should have been permitted to consider it as raising a reasonable doubt about whether the driving was a conscious and voluntary act.
  • Whether, and in what circumstances, a defence raised for the first time in closing address (without any evidentiary foundation laid during the trial) must nonetheless be left to the jury.
  • Whether s 160 of the Criminal Procedure Act 1986 (NSW) afforded the Crown any mechanism to respond to a defence raised for the first time in a closing address.

Decision

The Court of Criminal Appeal, by majority (Simpson AJA and N Adams J), granted leave to appeal but dismissed the appeal. The majority held that the trial judge was correct to direct the jury to disregard the sleep submission, because the possibility of the applicant having fallen asleep was never more than remote theoretical speculation and was entirely unfounded in the evidence.

Simpson AJA identified the applicable legal framework by reference to Jiminez v The Queen, which established that a driver who falls asleep cannot be found guilty of dangerous driving during the sleep period because the driving lacks the required conscious and voluntary quality. However, where a Jiminez-style defence is in play, the jury must also be directed on the Proudman v Dayman honest and reasonable mistake principle: that a genuine and reasonably held belief in fitness to drive may constitute a defence. Critically, an accused bears an evidentiary onus to point to material sufficient to raise the defence before it must be left to the jury.

The majority found the evidentiary burden was not met here. The circumstances counsel relied upon in closing (including the applicant's state before and during the telephone call) pointed just as strongly against any inference of sleep as in favour of it. The majority described the notion that the applicant could have fallen asleep within two to three minutes of completing a normal ten-minute conversation as "fanciful supposition." No inference of sleep arose from the movement of the vehicle itself, and the defence was not sufficiently raised by the evidence.

Garling J dissented. His Honour took the view that the gradual drift of the vehicle across the centre line, followed by a sharp correction just before impact, was capable of giving rise to two rational inferences: either inattention while consciously driving, or a momentary episode of sleep. In his Honour's analysis, the Crown bore the burden of excluding the sleep inference beyond reasonable doubt, and the trial judge's direction prevented the jury from considering whether a reasonable doubt existed on the element of conscious and voluntary driving. Garling J would have quashed the conviction and ordered a retrial.

Orders Made

• The conviction is quashed
• A re-trial is ordered

Key Takeaways

  • A defence based on Jiminez v The Queen (involuntary driving due to sleep) only needs to be left to the jury where there is evidence capable of establishing a reasonable possibility that the accused fell asleep. Bare speculation or theoretical possibility is insufficient.

  • The honest and reasonable mistake defence from Proudman v Dayman operates alongside the Jiminez framework in sleep-related driving cases: where material suggests the driver honestly and reasonably believed it was safe to drive, the jury must receive directions on that principle. But the evidentiary threshold must first be crossed.

  • Raising a substantive defence for the first time in a closing address, with no evidentiary foundation laid during the trial, creates a significant risk that the defence will not be regarded as sufficiently raised on the evidence. Simpson AJA observed that such a late introduction is apt to cause unfairness to the Crown.

  • Under s 160(2) of the Criminal Procedure Act 1986 (NSW), the majority noted that the Crown could not have been permitted to deliver a supplementary address in response to a defence raised only in closing, highlighting the procedural difficulty created when new defence theories emerge at the very end of a trial.

  • A meaningful divergence existed in this case between the majority and Garling J on where the line falls between impermissible jury speculation and a rational inference open on the evidence, demonstrating that this boundary can be genuinely contestable even among experienced appellate judges.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6
- Criminal Procedure Act 1986 (NSW), s 160
- Crimes (Amendment) Act 1983 (NSW), Sch 4(2)

Cases:
- Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14
- Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28
- McBride v The Queen (1966) 115 CLR 44; [1966] HCA 22
- Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
- Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34
- Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14
- R v Youssef (1990) 50 A Crim R 1
- R v Clarke (1995) 78 A Crim R 226
- R v Coventry (1938) 59 CLR 633; [1938] HCA 31
- Rummukainen v R [2020] NSWCCA 187
- Alford v Magee (1952) 85 CLR 437; [1952] HCA 3
- He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43
- CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
- The Queen v Khazaal (2012) 246 CLR 601; [2012] HCA 26
- R v Birks (1990) 19 NSWLR 677
- R v Glusheski (1986) 33 A Crim R 193
- R v O'Donoghue (1988) 34 A Crim R 397