Prineas v R

1. [1]

   HOEBEN CJ at CL:

Offence and sentence

1. [2]

   The matter proceeded before Judge Buscombe DCJ sitting without a jury at the Penrith District Court. The applicant was acquitted of that count.

2. [3]

   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. [4]

   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. [5]

   The applicant seeks leave to appeal from his conviction on two grounds.

The Crown case and evidence

1. [6]

   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. [7]

   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. [8]

   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. [9]

   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. [10]

   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. [11]

   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:

7. [12]

   The applicant also told the officer that he had worked between 8pm and 3.30am and when asked about his fatigue levels responded:

8. [13]

   Constable Wright gave evidence that at the time he spoke with the applicant, he appeared tired, was yawning and wiping his eyes.

9. [14]

   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.

10. [15]

    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.

11. [16]

    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.

12. [17]

    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.

13. [18]

    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.

14. [19]

    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.

15. [20]

    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.

16. [21]

    His Honour found that it was difficult to accept Mr Ahio’s recollection of that evening given the inconsistency with the work records.

17. [22]

    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.

18. [23]

    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.

19. [24]

    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.

20. [25]

    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.

21. [26]

    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.

22. [27]

    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.

23. [28]

    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.

24. [29]

    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.

25. [30]

    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.

26. [31]

    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.

27. [32]

    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.

28. [33]

    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. [34]

   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. [35]

   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. (1)

      The person drove a vehicle.

   2. (2)

      The vehicle was involved in an impact.

   3. (3)

      At the time of the impact the vehicle was driven in a manner dangerous to another person or persons; and

   4. (4)

      The impact occasioned grievous bodily harm to another person.

3. [36]

   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.

4. [37]

   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.

5. [38]

   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.

6. [39]

   His Honour specifically referred to the observations of the plurality (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) at p579 as follows:

7. [40]

   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.

8. [41]

   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.

9. [42]

   His Honour then set out his findings from the evidence as follows:

10. [43]

    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.

11. [44]

    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”.

12. [45]

    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.

13. [46]

    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:

14. [47]

    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.

15. [48]

    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.

16. [49]

    His Honour then set out the basis for his finding of guilt in relation to the negligent driving charge as follows:

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. [50]

   These grounds of appeal essentially raise the same issue and can be dealt with together.

2. [51]

   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. [52]

   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:

4. [53]

   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.

5. [54]

   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”.

6. [55]

   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.

7. [56]

   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. [57]

   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. [58]

   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:

3. [59]

   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:

4. [60]

   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:

5. [61]

   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. (1)

      During the preceding five days the applicant had worked a “day shift” Monday to Thursday.

   2. (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. (3)

      He was very familiar with the road and route.

   4. (4)

      The distance he had to travel and had travelled was almost 40km and usually took 40 minutes.

   5. (5)

      He had implemented precautions to increase alertness.

6. [62]

   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.

7. [63]

   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.

8. [64]

   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.

9. [65]

   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:

10. [66]

    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”.

11. [67]

    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.

12. [68]

    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:

13. [69]

    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.

14. [70]

    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.

15. [71]

    The orders which I propose are:

    1. (1)

       Leave to appeal against conviction is granted.

    2. (2)

       The appeal against conviction is dismissed.

16. [72]

    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.

17. [73]

    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.

18. [74]

    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.

19. [75]

    R A HULME J: I agree with Hoeben CJ at CL that leave to appeal should be granted but the appeal be dismissed.

20. [76]

    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:

21. [77]

    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".

22. [78]

    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:

23. [79]

    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.

24. [80]

    To be clear, the applicant's submissions involve the following contentions:

25. [81]

    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.

26. [82]

    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]):

27. [83]

    For these reasons I agree that Ground 1 was not made out.

28. [84]

    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.