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Court of Criminal Appeal 21 February 2024

Haynes v R

[2024] NSWCCA 12

Traffic & driving

Citation: Haynes v R [2024] NSWCCA 12
Court: NSW Court of Criminal Appeal
Date: 21 February 2024
Judges: Adamson JA (leading judgment); Lonergan J and Sweeney J (agreeing)

Background

The applicant was a truck driver with a documented history of vasovagal syncope, a condition involving brief losses of consciousness triggered by certain stimuli, including abdominal pain. On 12 December 2018, while stopped at traffic lights on Botany Road in Alexandria, he experienced a sharp stomach pain. When the lights turned green, he set his heavily loaded truck in motion and drove for approximately 20 to 45 seconds before losing consciousness.

The truck crossed into oncoming lanes and mounted the kerb, killing one pedestrian, seriously injuring another, and injuring a third. Following a judge-alone trial in the District Court, the applicant was convicted of dangerous driving occasioning death, dangerous driving occasioning grievous bodily harm, and misconduct whilst in charge of a vehicle causing bodily harm.

The applicant sought leave to appeal against all three convictions on the sole ground that the verdicts were unreasonable and could not be supported by the evidence.

  • Whether the trial judge's verdicts were unreasonable under the applicable standard from M v The Queen and Pell v The Queen: that is, whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt of the applicant's guilt
  • Whether the Crown had excluded the hypothesis that the loss of consciousness was caused by a pulmonary embolism rather than vasovagal syncope (the "pulmonary embolism hypothesis")
  • Whether, even accepting a syncopal cause, it was objectively dangerous for the applicant to drive after experiencing abdominal pain, given that no previous episode had involved a loss of consciousness within such a short interval following a trigger (the "time period hypothesis")

Decision

The pulmonary embolism hypothesis

Professor Ernest Somerville, a neurologist, gave evidence that the applicant's loss of consciousness was caused by syncope. Under cross-examination he accepted it was "possible" the cause was a pulmonary embolism, but characterised that possibility as "highly unlikely." The trial judge noted Professor Somerville's tone and body language when giving this evidence, observing that he clearly regarded the pulmonary embolism hypothesis as highly unrealistic.

The Court of Criminal Appeal held that, while a trial judge's reasons must be approached with circumspection in an unreasonable verdict appeal, the trial judge's observations about a witness's demeanour are a legitimate basis for inferring the content and weight of that evidence. Having reviewed the whole of the evidence, the Court was not left with a reasonable doubt that all hypotheses consistent with innocence had been excluded.

The time period hypothesis

The applicant's previous shortest interval between a syncopal trigger and loss of consciousness was three to four minutes, in a 2017 plasma donation episode. The applicant argued this meant he could not have known a loss of consciousness was imminent when he set off from the lights. The Court rejected this reasoning.

Adamson JA noted that the interval between a syncopal trigger and actual loss of consciousness is inherently unpredictable. Taking into account the truck's momentum, the presence of other road users, the road configuration (two lanes in each direction divided only by a painted line), and the unpredictability of that interval, the Court held it was open to the tribunal of fact to find that setting the vehicle in motion after experiencing a known syncopal trigger subjected other road users to a significantly greater risk than ordinary driving. The Court noted that the applicant's own counsel at trial had conceded that driving for three minutes after such a trigger would have been dangerous, and no principled distinction existed between three minutes and the 20 to 45 seconds that actually elapsed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In a judge-alone unreasonable verdict appeal, the Court of Criminal Appeal must conduct its own independent review of the whole of the evidence, but is entitled to treat unchallenged factual findings as an accurate reflection of the evidence underpinning them.
  • A trial judge's observations about a witness's demeanour, including tone and body language, can legitimately inform the Court's assessment of whether a hypothesis consistent with innocence was reasonably open on the evidence.
  • Where a driver has a known history of condition-triggered loss of consciousness, setting a large vehicle in motion immediately after experiencing a recognised trigger may constitute objectively dangerous driving, even if no prior episode involved such a short interval to unconsciousness.
  • The inherent unpredictability of the interval between a syncopal trigger and loss of consciousness was a significant factor in characterising the driving as dangerous, rather than any fixed or previously observed minimum time period.
  • A hypothesis consistent with innocence must be grounded in more than mere conjecture. The bare possibility of an alternative cause, here a pulmonary embolism accepted by expert evidence as merely "possible" and "highly unlikely," does not, on its own, create a reasonable doubt.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A, 53
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), s 133

Cases
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Gillett v R [2006] NSWCCA 370; (2006) 166 A Crim R 419
- Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14
- King v The Queen (2012) 245 CLR 588; [2012] HCA 24
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- McBride v The Queen (1966) 115 CLR 44; [1966] HCA 22
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Parker v R [2023] NSWCCA 234; (2023) 105 MVR 337
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Reyne (a pseudonym) v R [2022] NSWCCA 201
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36