SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  On 30 November 2006, the appellant was convicted upon the verdict of a jury of one count of grievous bodily harm and two counts of assault occasioning bodily harm while armed.  On 1 December 2006, he was sentenced to four years imprisonment in respect of the offence of grievous bodily harm and concurrent terms of two years imprisonment in respect of each of the assaults.  The learned sentencing judge recommended that the appellant be released on parole on 1 December 2008.

[2] The appellant now seeks to appeal against the convictions on the sole ground that:

"The learned trial Judge erred in that she failed to properly direct the jury as to the application of the defence of accident, and in particular, she failed to direct the jury in terms of s 23(1)(a) of the Criminal Code (Qld)."

[3] In order to appreciate the arguments of the parties, it is necessary to understand the evidence adduced at trial, the terms of s 23(1)(a) and the relevant aspects of the learned trial judge's directions to the jury.

The case at trial

[4] The Crown case was that, on the night of 30 October 2004, at Lockrose, the appellant drove his Toyota Tarago van at the complainants, William Ringrose, Dion Ringrose and John Llewellyn, and struck and injured each of them.  William Ringrose suffered a broken right femur; without medical treatment, his health would have been adversely affected permanently.

[5] During the evening before this incident occurred, the complainants had been at a party at a house on the property of Angelina Llewellyn, the sister of the complainant, John Llewellyn.  On the same property, but closer to the boundary with the appellant's land, was a granny flat where John Llewellyn's mother, Barbara, lived. 

[6] Early in the evening, there had been an unpleasant exchange between the appellant and Barbara Llewellyn and others including John Llewellyn when they complained of a spotlight shining on her house from the appellant's property.  Subsequently, the appellant was observed, by witnesses who were at the party, doing manoeuvres called "burn outs" in a paddock on his land. 

[7] Later in the night, and shortly before the complainants were injured, the complainants and others were standing near Barbara Llewellyn's granny flat and close to the fence line of the next door property owned by the appellant, when they saw the lights of an approaching van.  The complainants were then struck by the van.  According to a number of witnesses called by the Crown, the van simply drove through the fence into the complainants.  This was the evidence of Megan Llewellyn, Marie Anne Blanch and Kassandra Blanch, the wife, sister and niece, respectively, of the complainant, John Llewellyn.  John Llewellyn said that the driver of the vehicle got out of the van and said:  "I got you fucking cunts."  It was common ground at trial that the driver was the appellant.

[8] The appellant was restrained, and the police were called.  At 3.16 am on 31 October 2004, police interviewed the appellant.  In that interview, he said that he had earlier set up a light in a tree on his property and had been involved in a verbal altercation with his neighbours.  The appellant said that he was in his van when he saw three men coming through his fence "to do [him] in"; and in trying "to get out the gate … [he] hit something".  He said he had difficulty controlling his vehicle because of undulations in the land.  He said he "cleaned up a couple of guys I think".  He said that the people from the party then assaulted him.

[9] The Crown tendered photographs taken by investigating police officers which showed straight lines of tyre marks across the appellant's property to where the complainants were hit.

[10]  It is necessary to set out at some length the passages from the appellant's record of interview which are of particular relevance.  These passages commence at a point where the appellant was being questioned about the moments shortly before the complainants were injured.  The first such passage is as follows:

"Okay. Did you hear them say anything in particular?-- Only when they sort of - you know like you make a sarcastic remark about something and you just raise your voice so that everyone can hear, that type of thing? Yeah, just occasional stuff like that.

Well, what was said?-- Um, just, "Let's get him now. Let's do it." That type of thing, um, you know just - just that type of thing. It was all - 'cause I - you know it was just – they were pissed; a lot of laughing and that type of thing as well.  It wasn't all just, you know, it was just people after a party hanging around. Just that type of thing.

Uh-huh?-- Just-----

And who - who was laughing?-- All of them, I suppose.

Are you talking about the three people?-- No, I - I said there was a group here remember. I said there was - three of them came through the fence here but, um, like I said there was four out of one car; two out of another car. Um, and I know everyone standing back around here. The mother was over here somewhere I think or something or other. As people – the party's broken up, there's people all over the place.

Okay. You're sitting there; lights on; three people climbing through your fence?-- Yep.

What happened then?-- That's when all hell broke loose. I tried to get out the gate. That was my priority - was to get out past there.

Mmm-hmm?-- I hit something. Like, I was - I only had the one hand to steer with 'cause you know, sort of, just trying to swing around there. Well, something happened. I don't know whether if I hit the furrows there or something or other and, um, I sort of went a little bit sideways, a fraction. Didn't make the turn. I'm pretty sure, if you look at the, um, driveway, there'll be the furrows because where I drive out of the driveway, around here, I'm pretty sure there's - and it's just on the fence line there - there's a cockroach down there too. The fence line there, um - I'm pretty sure there's - what I think that happened is it hit those furrows there and with me one arm it's just - I haven't been able to make the turn. Simple as that. My aim was to get out of that place because, you know, it's - it's like - crawled up my leg a few times. Um, my priority was getting out of the place.

Right?-- You know, and it just happened. I'm - I couldn't believe it when - when it happened. I just couldn't believe it. I couldn't stop the car. I [just] - it just happened.

What happened?-- I - I remember the son going to the left-hand side.

Mmm?-- Pretty sure I hit him somehow and there's this bloke, just bloody right in front of the car - spread over the car. I just couldn't believe it. I just - I just couldn't believe it. Oh, just, shit, you know.

Well, what happened?-- Um, I hit him. I bloody - I cleaned up a couple of guys I think. It's just like - the copper – the off duty copper - the one - the son, or whatever, I think he escaped it. He was on - well he knew what we did, yeah. 'Cause he was the one that got me in the end and started fighting. He was the one that held me down and tied me with me hand up with a bloody strap and that-----

Mmm?-- -----with rope or whatever they got and bloody tied me up and, ah, started whaling into me.

Excuse me?-- Just the fucking lot of them. Chicks, everyone, just look at the fucking [indistinct]. Just everyone, just whaling into me.

…

Which boundary are you talking about?-- Um, from - they were on my side - on my property on my side of the fence, um, trying, um - going to go back over to the - to, ah - they - they turned around and, yep, yep, they were going to, um, exit the property.

Where were you when-----?-- I presume that's what they were going to do.

Where were you when they were turning and running?-- Well, I was trying to get out the yard. I was - I floored it. I bloody put the foot down 'cause I wanted to get out of there.

Mmm?-- and come out here. Well, that's what I'm saying. [Indistinct] photos been taken out there and that but I'm pretty sure you'll find that that's where [indistinct] bloody big gutters there and I couldn't make the turn. It's as simple as that. I couldn't do it.

Mmm?-- I had the one hand. I was trying - the steering wheel got reefed out of my hand and swung around. I can't remember - I - I'm - I can't remember - I can't even remember hitting the - I'm - I'm serious, I can't remember hitting them 'cause all I remember is the bloody, the son on the floor on the ground on, um, my side of the car but in front and, um, the other two were tangled up in the fence line. They were still in the fence. I'm pretty sure.

Well, when was that?-- Ah, when it was all over. When – when I stopped the car. Um, I'm pretty sure the son was to the front right and the other two were in the fence, I think, yeah. On the boundary.

Mmm-hmm?-- Ah, yeah, the boundary not the road fence. The boundary fence.

And where'd your car end up?-- Um, pretty much right on the boundary, I think. I'm not sure. I just - I just got out of the car 'cause they were just piling over - they were – they were coming [indistinct]. This time they were going to – they did. Well, they did it to me. Um, you know my car - oh, pretty sure it was - it would have been right on the boundary. Look, I couldn't even pull it up. It - it - when it went through the fence, I can't remember. I - I cannot remember. We could have gone through the fence. I don't think it would have done though. I don't think it would have gone very far. If it did even at that." (emphasis added)

In this passage, the reason for the collision is said to be hitting "a furrow" or a "gutter" which prevented the appellant from turning away from the direction of the complainants.  Significantly, he says that he "couldn't stop the car … it just happened".  One may note the curious reference to a cockroach crawling up the appellant's leg.  A feature of both the record of interview and the appellant's later evidence is the self-serving commentary which accompanies the appellant's narrative of events.  It is difficult not to form the impression that the appellant is attempting to render plausible his exculpatory account of the incident. 

[11]  The appellant's version that "it just happened" because he had hit a furrow or a gutter, and therefore could not turn the van away from the direction of the complainants, began to develop into a somewhat different account in a later passage:

"Mmm. John, is there any - do you know if there's any defects to your vehicle at all?-- Um, yes.

What's that, mate?-- Um, well today I've had the seat out. Um, working on the, um, engine and that-----

Mmm?-- -----to a degree. Um, and so the seat's not bolted in properly.

Right?-- I don't think it's bolted in at all because like I said, ah, I was planning on spending the whole night there and finishing the car off tomorrow. When he came over the fence that first time I had to get down to the phone box. So, the seat's not bolted in.

Right?-- Um, the brakes were bleeding. The brakes - I'm pretty sure there's no brake fluid or there's bugger all brake fluid in the vehicle because we were bleeding the brakes and that type of thing. I - you can check that now. I'm pretty sure there was - there would be virtually no brake fluid in it.

…

With regards to the defects of the vehicle, I'm talking about mechanical defects. Not worrying about the seat. Anything well, like the brakes, the steering anything like that?-- Um, only the brakes.

Okay?-- Definitely the brakes, yeah.

Just that you're getting fixed up?-- Yeah, yeah.

Okay?-- You see the - even if you were to go on - I'll swear on the bible this and you can go there right now and check the brake
fluid-----

Mmm-hmm?-- -----turn the ignition key on and you'll see the brake light on because it's - it needs - it's got a fluid sensor-----

Mmm-hmm?-- -----and if the fluid is way down and it's way down to the point where it needs-----

John, with regards to the incident when it occurred, you've accelerated to go out, is my [understanding]; you've reefed the wheel around to try to steer around and then at any stage when you've, um - you said that you've hit the ruts or whatever and did you try to stop the vehicle at all?-- Oh, yeah, yeah.

When was that?-- Shit, yeah.

When was that?-- Oh, in the split second that, um – I remember, um, trying to turn and the wheel - the wheel bloody hurt my finger, that's right, yeah. It bloody even left a mark on me finger there when it - when it spun around and that's when, um - oh, yeah, I was on the brakes and everything at that stage even, yeah. I just couldn't - nothing was happening. Nothing was happening. It just happened, yeah.

Okay?-- It just happened.

John, how long have you been driving that vehicle?-- Oh, I bought it in, um, ah, 2001. The beginning of 2001.

So you're pretty familiar with the vehicle?-- Oh, yeah, yeah. I drive it all the time.

You drive it on the - the dirt as well as on the bitumen?-- Yeah, yeah.

…

SNR CONST DONALD: Yeah, thanks Colin. John, as I was saying just before the tapes changed, mate, my observations were there was an acceleration mark and then you've - you've gone across the, um, driveway of the - on the property?-- Yeah. Yep, yep.

And then there's another acceleration mark, okay? And then there's a gap and then there's a brake - a braking mark right at the fence. Can you explain that at all?-- No, I can't. I'm pretty sure I hit the brake - I'm pretty sure - when I lost control I'm pretty sure I started braking then. I'm sure I did.

Okay. When you-----?-- With both feet. 'Cause I remember my left hand - I remember me foot slipped off the clutch – oh there's another job we're doing today, the, um, that pad isn't on the - the pad isn't on the clutch. Um, are you going to look at that?

Oh I've had a look at [indistinct]?-- And the - the clutch - and the clutch - the rubber pad. [Indistinct].

On the pedal are you talking about?-- Yeah, on the pedal.

Okay?-- That's not there 'cause we - um - here we go again - um, that's in that, um, console - the centre console, that's in there and I was, um, it's all broken in a dozen pieces. Somebody's tried gluing it up there before [indistinct] it came off and, um, I was going to glue that back on today, too. But that's not on there. But I’m pretty sure I went for the brake and the clutch. I just can't see that - I remember – I remember - I distinctly remember put - slipping off the clutch because I had a pair of thongs on. Just a pair of thongs on. That's all I had on." (emphasis added)

[12]  Before observing the further development of the appellant's different explanation for the incident, it is desirable to note the appellant's account of the reason for the manoeuvres which he had been engaged in earlier in the evening.  The explanation is, to say the least, odd:

"What we're doing is, um, what I'm doing is, um, marking this out so we can take some aerial photographs and work out from the air - 'cause you can't tell on the ground, you know, it's pretty hard to say, 'Oh we'll put this there and that there'. And I have been churning it up a fair bit. And, um, you'll find acceleration marks everywhere around there, ah, straight ones for doing particularly along - you'll see, um, you can't see either of the other bits - you'll see, um, in the entire yard you'll see no marks anywhere else whatsoever because I haven't been churning anywhere else up. Um, goes to there. Go round. Um, this area here has been dug up a fair bit. You'll find some, um, straight lines, I think, [indistinct] there'll be some straight lines churned into there, there'll be two - two marks going straight ahead in that direction. Um, there'll be some fresh churn marks from where I think the, ah, road will go. There's some fresh churn marks there. And up in this corner here, that there you'll find, um, quite a few of them going in that direction just off the track a little bit 'cause I wanted to widen that track so I churned some marks up there. But up in here I don't remember doing it but I - I can't remember, you know, purposely laying two tracks down there. I can't remember that. I really can't remember laying on purpose. Because there's a lot of marks, they're all over the place.

Mmm?-- Particularly when, um, ah, trying to get sort of there's a stack of planning and that and I've - I drop a – a mark down here and there and there and, um, just so that - 'cause when you're up at the back of the property it's on a slope. When you're up the back you can see the marks on the ground so you can stand back and say well, 'Yeah, that looks all in proportion. I can take [indistinct].

So how do you drop these marks?-- I just drop the clutch.

Oh you're in the car?-- Car. Yeah. 'Cause the, um-----

Oh right?-- 'Cause the, um, even the coppers last night said, "Well, you're only doing it in your own yard." And they - they shined the torch - they had a good look around last night and said, "Well you haven't been doing it anywhere else but - but on this one spot" and they - yeah, and that's-----

Mmm?-- There's marks up here.

Well, so what's the purpose behind that?-- Well, to, um, there's two and a-half acres and I want to totally - I don't want to do any mowing. I've - two and a-half acres of landscaping and that. And, um, originally where the – the completed landscaping is up on top of the dam and that and the - all the bark chipped areas there, I did exactly the same as that which is what I explained to the coppers last night, too. Um, 'cause that's what their initial complaint was about. Me churning up the - that's why he called the cops, apparently, he was - 'cause I was tearing up a lawn. Ah, so that's what I did up here originally too, was exactly the same thing, just dropped the clutch, marked these lines out, that's on a slight slope and you can go down to the front and you'd look back and you go - see the marks there 'cause how else are you going to mark it out otherwise?

What are the lines for?-- For boundaries of the gardens and, um, the water course is there. Where the dam is there's no existing water course whatsoever from the overflow of the dam so I just - it's already established there, the, um, the water course coming down to the bridge and under the bridge and then finishing up into the property. And so the - to get the squigglies and all that you can just plant - there's no vegetation whatsoever all around here, I've taken all the rocks out and that originally up to this section. You just bloody - you know if you want straight lines for paths and that just - just spin the wheels and just churn it up and it strips all the grass out and leaves some very nice marks. Same as the water course. If you - bit of a tail fish here, tail fish there and that [indistinct] that curve needs to be brought in, you know, when you go down to the front here and look back, 'cause that's on a slight slope there, you can go down the front here and - and, um, look up and see the marks or change them, widen them, put another bend in, that type of thing.

So when was the last time that you did that?-- Oh today. Tonight.

Tonight?-- Mmm. Oh last night especially. See all this here, um, I probably churn that up probably, oh, probably - see what happens is when I come in - come in to the yard I drive around this part here and, ah, get up to here and then just bloody whale into it, cut a nice big circle and pull up right here at the shed. The car's always parked in the shed there. So I come in and I do a big - big circle there and just rips all the grass out, leaves a nice furrow there so you can just - but I was saying that you can go up to the - to the back of the property and look down and you can see all the marks and then, "No, that needs to be a little bit wider" or-----

So this mark at the front where the - you're doing these furrows here, what are you doing them for?-- Um, just for general boundary, border lines, um, just perspective." (emphasis added)

[13]  The interview returned to the location of the accident.  The appellant acknowledged that his vehicle was partly on his side of the boundary line and partly on the other side.  He was then confronted with the suggestion that his brakes had, in fact, worked well.  At that a new reason for the collision began to emerge, but it did not initially include mistakenly hitting the accelerator rather than the brake:

"Okay. John, um, the marks that I'm talking about, are skid marks, are directly associated with where the vehicle was when I turned up there tonight?-- Sorry, could you say that again, sorry, I-----

You know where - where your vehicle, the green Tarago?-- Yeah, yeah, right, yeah. Yeah.

I located it in a position, um, at the boundary-----?-- Yeah, right.

-----of the property?-- Yep. Yep.

Okay? And the vehicle was, um, somewhat across the fence from where a collision had occurred?-- It was on their side, was it?

Um, it was partly on both sides?-- Oh okay.

Okay? And directly adjacent from the vehicle came a set of, um, skid marks?-- Yeah, yeah, that's down on the-----

Okay?-- Yeah, I tried stopping. Yeah.

Yeah. Well, the skid marks that I'm talking about consist of acceleration marks on a couple of occasions, okay, and then some brake marks at the end of that - those set of skid marks.

Okay?-- All right. Yep. Yep.

Um, the skid - the skid marks at the end of the brake marks-----?-- Mmm-hmm.

-----indicate to me that the brakes of the vehicle work quite well?-- Mmm-hmm.

Okay? Did you remember the brakes of the vehicle working well tonight?-- Um, at the time of things happening I don't remember much about it. I just remember just sitting - I was there, the chair - the chair back - went back. That's right. The bloody chair. I remember that 'cause I remembered – I went to - I grabbed it like that, it flicked and I went – the chair went back - the chair went backwards and my foot slipped off the - like I said, it's just a metal pad. I remember that now.

Slipping off what? Your foot slipped off-----?-- Slipped off the clutch, yeah.

Clutch?-- Off the clutch but that's where the pad's missing. And yeah, the chair was rocking. That's right, I remember that now, too.

Where are the bolts for the chair?-- Um, in the console. In the little console. Like I said, to get, um, to the engine you've got to pull out the front seats [indistinct] the consoles. It just goes on and on to get [indistinct]. I was doing some engine work and that's why the seat wasn't bolted back in 'cause, you know-----

How long's it been not bolted in for?-- Oh today.

Just today?-- Yeah.

Okay. All right?-- 'Cause I'm pretty sure the, um, the bolts are in the front console, I'm sure of it. 'Cause-----

Were you intending on travelling anywhere tonight?-- No, that's what I mean. No. Seeing it's 8 o'clock when this - when he first jumped the fence I wasn't going anywhere.

Mmm-hmm. John, the way in which you describe to me that you've reefed the wheel around and that you've accelerated the vehicle?-- Yeah.

It's been my experience-----?-- No, I didn't - no, I didn't reef it, that's what I mean. I couldn't-----

Oh?-- Yeah. It was, um, it wasn't happening, it-----

You indicate, though, that you've turned the wheel?-- Yeah. Yeah.

My experience has been with vehicles and my training tells me that when you place a vehicle under acceleration with, um, action on the steering wheels?-- Yeah.

That the vehicle will, um, abruptly skid and turn. Would you agree with that?-- Um, if you were positioning yourself to do a donut, yeah. Yeah.

…

John, so it's my opinion that the skid marks in train that I've located there indicate that you've - your steering wheels at the front there-----?-- Yeah.

The front wheels in your vehicle?-- Yep.

Um, are actually pointing more or less directly straight ahead and haven't had any action of steering placed upon them, okay, whilst they've been accelerating. Okay? And then even when you've crossed the, um, the track leaving the property which is quite a - a small divot, it's not a large-----?-- Yeah.

-----furrow-----?-- Yeah. Yeah.

It's got some - it's just a mark. It's really where the grass is a little bit less than elsewhere, um, when you've even crossed that there's still been no action on the vehicle on its steering. Okay?-- Mmm-hmm.

From the scene that I-----?-- Yeah.

That I observed?-- Yeah, again, I'm with you. Yeah. Yeah.

Can you comment on that at all?-- No, I can't. I - I really can't. I just remember - like I said all I - I wish I could remember the whole thing. Fucking hell, I wish I could remember the whole thing. Believe me, I wish I could.

Yeah?-- But I just remember - I'm pretty sure I went - I'm pretty sure I touched the brake. I'm pretty sure I didn't touch the bloody accelerator, hey. I'm - I'm-----

Right?-- You know, all I remember is the chair went back, foot slipped off the clutch and bang, just fucking it happened.

Okay?-- It happened.

And just to finish off on the observations there, John, the last action that I see on the vehicle is a brake?-- Yeah.

Okay? But that's right at the fence after a second acceleration?-- Well only - when I slipped back the – the accelerator. 'Cause I've had an accident before.

Yep?-- And for some reason my foot was flat - flat on the accelerator, hey, that - on, ah, the front of the car the van - see what - I had to go up a bloody steep embankment to get up to the house. And the bloody owner had been out there and he'd bloody, um, done the driveway up and it was all muddy and I hit it and I - to get up the bloody hill and that, and went straight ahead.

Mmm?-- And, um, when I - when I - when I - the foot was flat on the accelerator, hey, the bloody engine was just full throttle, you know.

Okay?-- And you see it on, ah, even on TV and movies and that you'll see cars go - you hear the - that's why I've noticed you hear the accelerator. You know, people doing the same thing. And people go over bloody, um, shopping - you know, car parks and that 'cause they have the accelerator [indistinct]. When that seat rocked back I just, yeah, I just you know - I don't know, it just - foot slipped and I'm pretty sure I hit the brake but-----

Okay. John, just for clarity just a couple of notes that I had before. You said that you've accelerated the vehicle, you've gone across the - the track and that's when you've turned the wheel. Is that correct?-- I'm pretty sure I would have been starting the - I'm pretty sure that I would have been starting to do that turn before it hit the wall.

…

John, I - I can probably clarify a little bit for you that appears to be one continuous track to where the car is or where it was situated when the police arrived?-- But is it from 30 metres in?

Mmm-hmm. That's correct. Yep?-- No, would have been at least - I [indistinct] but I can't - no, I'm pretty sure, um, no.

It's about 34 metres, actually?-- Yeah, right. Yeah.

Okay?-- Yeah.

Um, John just, ah, no the - the issue of the people at the fence, um, you said that you thought that the son was trying to get through the fence and the other two were not getting through the fence. Which way were they facing towards you?-- Towards me, yeah."  (emphasis added)

[14]  The appellant then mentioned hitting the accelerator.  This suggestion was advanced as an explanation why the vehicle, which was, as he acknowledged, in first gear, did not simply stop before colliding with the complainants:

"Would - it would be - appear to me that if you knew the vehicle was heading towards those people that you had ample opportunity to brake?-- Yes.

Or steer the vehicle away from them and, in fact, you haven't done that. You've kept on heading-----?-- No, I'm pretty sure weren't - if you're saying there's two marks and - when I went back on the chair, that's when I would have-----

Okay?-- -----accelerated.

Would that - that - that mark is about eight metres, okay?-- Yeah, there you go then. Whoops. 'Cause I went straight back. Yeah. Yeah.

Okay?-- There you go.

Between - sorry from the time of the original acceleration, however, when you say you were trying-----?-- Yeah.

-----to leave the property and the second acceleration mark-----?-- Yes.

Okay? Or the - the clear second acceleration mark is a period - is a distance of about 20 plus metres. Okay? Which is, from my point of view, certainly sufficient time to either brake or take other action to shift the motion of the vehicle away from heading directly-----?-- Yes.

-----towards three individuals?-- Yes. Incidentally, um, now that we're actually talking about these marks you'll find - I'm damn sure that if you go back there and have a look you'll find that mark there you'll find there's also a fresh one from tonight facing that direction, one in that direction because - and I'm pretty sure you - that, um, the neighbours would be able to verify the fact that when he first started getting through the fence here I've come forward about maybe six feet and hit the brake and he'd get on the other - he wouldn't - he'd walk down here a little bit further and he wouldn't get over. I've reversed the car back, like I said, I was bloody keeping them in the lights and that. Um, I - and I did it again on another occasion. I'm pretty sure you'll find three or four marks there. Have you seen them there?

I have observed a number of marks?-- The, ah - and then exactly the same on this one and that's what those two marks will be, just simply calling their bluff. They weren't bluffing they were pulling through into the fence. That's what that other mark-----

Okay. You say calling their bluff, what do you mean by that?-- Um, well I had them bluffed for - I was there, I had the lights on them and it was just bloody - I think you'll find those marks are only like two metres long, if that. Um, you know there's a need - just keeping them at bay there.

All right, so what did you actually do?-- Um, on these occasions?

You're saying - yeah?-- Yeah, um, ah, when I was putting it in reverse I had the spotlights on them and that-----

Uh-huh?-- -----to make sure - you know, just trying to keep where they were. Um, when he started trying to get through the fence and that, um, I just put the accelerator down and go forward probably about two metres. No more than two metres.

Uh-huh?-- And I did that - and then that's what I said, he'd stay on that side of the fence. He tried it again, I did it again to certain effect. When they were congregating up in the corner here I know I did that for a fact and that 'cause you'll find probably even four times that that's happened there, straight marks, in a radiating thing like that. That's what that rear mark was which would have taken me up to the, um, up to the track. And then that's when it's happened.

So what was the reason behind doing those on those four occasions?-- Just keeping them on their side of the fence.

All right. And which way was the vehicle facing then?-- Towards them 'cause I had the lights on them.

All right. So it was facing where they were?-- And this is - this is well back from the - yeah. 'Cause I couldn't see - 'cause I said they were starting to split up and that and just sort of - I'm pretty sure they were - they - there could have been more people coming from there, you know, on the other side of, um, where he first jumped the boundary there and that. And when I was keeping them at bay there could have been other people from the party coming around this side. There's no idea, like I said, there was - party had just broken up and that.

Did you have any problems stopping your car on those occasions?-- On which occasions?

Those-----?-- No, no.

-----four occasions? Did the chair move at all on those occasions?-- Not really, no. Not those short - short bursts. I'm pretty sure the marks would still be there from that. They're only [indistinct] yeah. They were only short bursts.

…

Um, I located the vehicle, it was in first gear?-- Yeah. Yeah.

Okay? You said in your interview here tonight, John, that you thought the vehicle - the vehicle was in first gear?-- Yes, yes.

It's my experience that if a vehicle is - is placed under acceleration in first gear if you remove your foot from the accelerator and cease that acceleration-----?-- Yeah.

-----the vehicle, because of the low nature of the gear-----?-- Exactly, yeah.

-----slows very quickly?-- Yeah, that's what I was saying. I'm pretty sure that when I went backwards then I've hit the accelerator and not the brake. I'm - that's what's happened then.

All right. It's my observation from the information at the scene, my observations of the - the scene there tonight, that the vehicle has been under constant acceleration for a period of time and there hasn't been that deceleration?-- Yeah, that's what I'm saying. That that's what would have happened. 'Cause I - there's no way that I - I lined them up to – to kill them. There's no way. No way in the wide world. No way in the wide world. And as I've said when that seat's gone back that's it, she's just-----"  (emphasis added)

[15]  It will be seen that the appellant advanced another explanation for the acceleration marks.  In this explanation he was accelerating in the direction of the complainants, braking and reversing in an attempt to "call their bluff".  He said he did not have difficulty braking and his seat did not move.

[16]  It is apparent from these passages in the record of interview that the appellant struggled to give a coherent account of the incident which conformed to the physical marks which had been observed on the accident scene.  The suggestion that he accidentally hit the accelerator was made only after the difficulties with his earlier explanation were drawn to his attention.  At this point, it is necessary to say no more than that the jury would have been entitled to regard the account ultimately given in the record of interview as unacceptable.

[17]  The appellant gave evidence at trial.  His evidence reflected the self-justifying commentary which characterised his record of interview.  In the appellant's version of the neighbour's complaint about the spotlight, he accepted that his spotlight was shining on the neighbouring house.  He said that John Llewellyn came into his yard abusing and threatening him.  In the course of seeking to flee from John Llewellyn's approach, he said that he fell and aggravated an injury to his shoulder for which he was being treated at that time.   

[18]  The appellant said that, after the initial intrusion by John Llewellyn, he drove to a phone box about four or five kilometres away and called the police.  When, after about an hour and a half, the police had not turned up, he drove back to his property.  He said that he was again abused by people on the neighbouring property.  He went to call the police again, and then returned to his property.  I note that neither party sought to adduce evidence of the police records of calls made during this evening, even though it appears that these records were available.

[19]  According to the appellant, the police did not arrive, and he waited in his vehicle.  He saw the complainants and others standing on the fence line near Barbara Llewellyn's flat.  He said that he saw them come through the fence and begin pulling up his trees while walking like monkeys.   

[20]  The appellant said that he moved his vehicle forwards a little and then "put the foot down" to "flee the scene" when he saw the intruders begin to "rush him".  One of the Ringrose brothers rushed the vehicle, hitting the windscreen.  The windscreen of his van shattered, and he was unable to see anything through it.  He said that he then tried to hit the brake, but hit the accelerator instead when his seat moved backwards and to the side.  He said that the seat was unstable because he had been working on his vehicle earlier in the day and he had not bolted the seat back into place.  It may be noted here that a vehicle inspector called as a witness by the Crown confirmed that the driver's seat in the appellant's van was not properly bolted down.  It sat in a position in which his seat was supported from behind.

"… so I accelerated – I went forward, they made the motion of coming towards me.  There were three of them.  They – it could have been one on that side, one in the front there, and I thought, well I'm not going to put up with that – I went out and I went to go out.  He's come across.  He's been hit … the windscreen is totally smashed and I can't see anything now.

…

the seat was not bolted in …

So, while you're accelerating, okay; while you're accelerating … did anything occur – inside the cabin …?--  The seat went back. 
The-----

When the seat went back what – what happened?--  Oh as it went back and off to the side it's a natural reaction for me to put my foot down.  Somebody said yesterday when you go backwards you take your foot up, well I don't I – when I go back then my natural reaction is to put the foot down.    

…

I tried to grab the wheel to steer as best I could.  I was in – I was off to one side too, it wasn't straight back, it was slightly off to one side and I was trying to grab the wheel and I hit the accelerator only for a very brief period it wasn't flat to the floorboards and launch the vehicle it just carried like – 'cause the windscreen was smashed, I couldn't see anything …

… You were saying that the seat went back, you made a jab on the accelerator?--  Well yeah, 'cause we went back I – and the – the – well I was going for the brake.  I was going – well that's, you know, but it ended up there.  The accelerator sits way out – way – it sticks way out, yeah.

… What were you going for?--  Well, the brake to – to stop.

… And what did you hit?--  The accelerator, but just for a brief period, it wasn't-----

I see.  Yes?--  So I hit the accelerator." (emphasis added)

[21]  He said the vehicle lurched forward before he hit the brake to bring it to a stop.  He got out of the vehicle and attempted to flee, but was set upon and restrained until the police arrived. 

[22]  It will be noted that, in this version, there is no suggestion that the appellant was unable to turn away from the complainants because of a "furrow" and that he hit the brake. It will also be noted that, in this version, the appellant accidentally hit the accelerator only after one of the complainants, shown by other evidence to be William Ringrose, had hurled himself at the appellant's vehicle. That this was his position was made clear in the appellant's cross-examination where the following exchange occurred in relation to the injury to William Ringrose:

"-----how have you hit all three with the one car?-- Yeah, the bloke lunged himself at the car, right, and went into the windscreen, right. After that, I can’t see a thing. The windscreen - the windscreen is totally smashed and the photos can show that. I can’t see a thing. There’s a another vehicle with its headlights on pointing into the yard. I cannot see anything. I don’t - how the second bloke hit and where he ended up I don’t know, I didn’t even see him get hit, I don’t know anything about him, but to be thrown from there to the glass is a long way, so I don’t know. He ended up in the other yard there, so I couldn’t have seen it, and the copper was caught in the fence, and that’s it, the copper was caught in the fence, the first bloke, I know - I know it, I saw him on the windscreen.

HER HONOUR: So are you saying the first fellow [threw] himself on the windscreen, in effect?-- I’m saying - well, this is what I started saying before-----

Yes?--  -----and I was cut down. Um, I believe - well, what I believe - I believe he was trying to jump up onto the bar just acting the goat, and he - he’s - he’s smashed the windscreen. His head did not smash that windscreen. Have a look at the windscreen. His body smashed that windscreen. If his head did it, you’d have a round melon-shaped star pattern coming out. He threw himself, he shouldered that windscreen and smashed the entire windscreen.

MR GODBOLT: Mr Ellis, let me be perfectly clear; is your evidence seriously that this person runs at a vehicle that is accelerating towards you and throws himself at the windscreen?-- I wasn’t at full acceleration, he was acting – a party had broken up, okay, they’re acting the goat, they’re in my yard pulling plants out.

Is that what you’re saying?-- It’s - why is it so unfeasible that somebody that’s in a drunken state wants to jump up onto a vehicle? I’m sure he wouldn’t be the first to do it and he won’t be the last one to do it, I’m sure of that.

Well, at that point in time, if I understand your evidence, your vehicle is accelerating in that direction, in the direction of the
fence?-- That’s in seconds after he’s hit the windscreen, but it’s only for a short stab, and that’s what the um, the police said, there’s two acceleration marks-----

So-----?--  -----one where I moved off and one where he was hit and then accelerated that little tiny bit." (emphasis added)

[23]  The appellant explained that when he gave his record of interview, his answers were affected by the circumstance that he was in pain from his shoulder injury and from being kicked in the head; but even if one makes every allowance for the appellant in this regard, it is clear that the appellant's account of the collision with the complainants diverged from the version of the incident initially given by the appellant in a radical way which is not explicable by reason of the circumstances in which the record of interview was taken.  The appellant was not engaged in a process of attempting to recall events from the distant past:  he was speaking of events which must have been vivid in his memory.

The issue on appeal

[24] The appellant relied at trial upon, inter alia, a defence of accident under s 23 of the Criminal Code 1899 (Qld).  As I have said, the only complaint about the trial raised for this Court's determination concerns the directions given to the jury by the learned trial judge in this regard.

[25]  Section 23(1) of the Criminal Code provides as follows:

"Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for -

(a) an act or omission that occurs independently of the exercise of the person’s will; or

(b) an event that occurs by accident."

[26]  In the appellant's submission, the relevant "act" was the driving of the vehicle.  On the appellant's behalf, in this Court it was argued that the learned trial judge's directions to the jury were not sufficient to inform the jury that, if the jury entertained a reasonable doubt as to whether the driving of the vehicle by the appellant at the time he struck the complainants occurred independently of the exercise of his will, they were obliged to acquit him. 

The learned trial judge's directions

[27]  The learned trial judge's directions in relation to s 23 of the Criminal Code were focussed upon the questions whether the complainants were on the appellant's side of the boundary fence when the complainants were struck, and whether the appellant's vehicle striking the complainants was an event which occurred by accident.  Her Honour said:

"Now ladies and gentlemen, I said that I would come back to this question of unlawfulness, and you remember I said, something is unlawful if it's not authorised, justified or excused by law.  Now on the accused case there is two, what we call defences that are raised on the evidence.  The first one is accident and the second one is something called, extraordinary emergency.  Now, can I start by saying this, the Crown case is that these defences don't come into the consideration because you would not accept that the complainants were over Mr Ellis' side of the fence, right?  If the complainants were over - if I can say the Llewellyn side of the fence and didn't cross over into Mr Ellis' yard and if you are convinced of that beyond reasonable doubt, then you don't have to consider these defences because they're just - they simply don't apply on the evidence, all right? So the first thing you need to do is decide what facts you accept, all right?

     On the Crown case these defences don't come into consideration, so that’s the first thing I will say, but they have been raised in the record of interview, and they have been raised when Mr Ellis gave evidence, and once they are raised in evidence the Crown has to negative them beyond a reasonable doubt, okay?  So, in relation to the question of accident, our Law provides, 'That a person is not criminally responsible for an event that occurs by accident.' Now, an event can only be regarded as an accident if the accused neither intended it to happen nor foresaw that it could happen and if an ordinary person in the accused's position at the time would not reasonably have foreseen that it could happen.  It is settled law that an event [occurs] by accident within the meaning of that section if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person.  The Prosecution must prove that he intended that the event in question should occur or foresaw it as a possible outcome, or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome.  In considering the possibility of an outcome you should exclude possibilities that are no more than remote and speculative.  So the accused when he was interviewed and in his evidence says that he was trying to leave the property when Mr Ringrose approached the car and shattered the windscreen in effect, that he accelerated to leave, he couldn't see what he was doing, the seat moved, he tried to apply the brakes and must have put his foot on the accelerator and he couldn't gain control of the car because he couldn't really see what he was doing, that's in effect what he said in his evidence.  In his interview I think you can listen to it again, but he seems to be saying that he may have hit a rut or something and lost control of the vehicle when he was crossing the driveway, but he wasn't really clear in his interview as to how he lost control of the vehicle, but at some stage when he was trying to leave, he lost control of the vehicle and before he knew it he'd hit these people.

     Now that evidence raises for your consideration the possibility that neither the accused nor an ordinary person could reasonably have foreseen that the injuries to the complainants would occur.  If the accused did not intend or foresee the injuries or an injury to the complainants as a possible outcome of his actions, that is driving a motor vehicle in the circumstances that he drove, that is namely a motor vehicle with a seat that wasn't actually attached to the car, and if an ordinary person in the position of the accused would not have foreseen that as a possible outcome of his actions then the accused would be excused by law and you would have to find him not guilty.

     It is not for the accused to prove anything unless the Prosecution proves beyond reasonable doubt that an ordinary person in the position of the accused would reasonably have seen - foreseen some serious injury as a possible outcome of his actions or that the accused intended or foresaw that you must not - you must find him not guilty.

     Even if you reject the accused's account of what happened, you must consider the possibility of an event which occurred by accident. The accused is under no obligation to prove any matters and before you can convict him, you must be satisfied that via the Prosecution, beyond reasonable doubt, that the serious injury was not an accident, that is not an event which was unintended and unforeseen by the accused and that it would not have been reasonably foreseeable by an ordinary person in the accused’s position. Now remember as I said, that applies to the situation where the complainants were over his side of the fence."

[28]  There are two problems with these directions.  First, these directions were not apt to alert the jury that it was necessary for the Crown to negative beyond reasonable doubt the possibility that the driving of the vehicle into the complainants was not a willed act.  Secondly, the learned trial judge's direction was apt to lead the jury to disregard all possibility of a defence of accident if the complainants were, in truth, on the Llewellyn side of the fence when the appellant drove into them. 

[29]  As to the second of these problems, what appears as a direction that the jury's determination of fact that the striking of the complainants occurred on the Llewellyn property as decisive against the availability of a defence under s 23 of the Criminal Code may have been intended to reflect the way in which the Crown framed its case.  The passage which I have set out shows, however, that the jury may well have been led to believe that they could find the defence of accident irrelevant merely on the basis that they were satisfied beyond reasonable doubt that the accident happened on the Llewellyn side of the boundary.  Strictly speaking, it was legally possible for the defence of accident to arise for consideration even if the complainants were on the Llewellyn side of the fence when the collision occurred.  It was theoretically possible, though perhaps practically unlikely, that the jury might have entertained a concern that the appellant unintentionally hit the accelerator even though they rejected his evidence about the intrusion of the complainants onto his property.[1]

[30]  The jury, in the course of their deliberations, sought clarification from the learned trial judge "in relation to deliberate".  In response to this request, her Honour said:

"The Crown case is that this action is unlawful because it was a deliberate driving of the vehicle at the three people.  All right.  And the Crown case is that those three people were just on the other side of the fence and the accused drove directly at them through the fence and hit them. So it was a deliberate driving.

     One of the things that is raised for your consideration in Mr Ellis' interview and in this evidence is that he says that he was in fact driving out, or trying to drive out of his property back down to the tavern to escape, but that in effect he lost control of the car; that the seat went whichever way, he was trying to reach the brake, he must have got the accelerator, and he hit these people who were in his yard, so that's what he says happened.

     Now, that raises a consideration of the defence of accident, amongst others obviously, and our law provides that an event can only be regarded as an accident if the accused neither intended it to happen, nor foresaw that it could happen, and if an ordinary person in the defendant's position at the time would not reasonably have foreseen that it could have happened.

     It is said that more than an event occurs by accident within the meaning of that section if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person.

     The Prosecution must prove that he intended that the event in question should occur, or foresaw it as a possible outcome, or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome.

     In considering the possibility of an outcome, you should exclude possibilities that are no more than remote and speculative. So the Prosecution has to prove that he intended, by driving at these people, that they would get struck, or that he could foresee that as being something that was possible to happen.  All right.

     Or the other part of that test is that an ordinary person, so someone such as the 12 of you, in the position of the accused, would reasonably have foreseen hitting these people as a possible outcome.  All right.  So there are two sides to that test, if you like.

     So what Mr Ellis says is that he was driving this car, he accelerated to leave, the seat moved, Mr Ringrose hit the windscreen, it seems almost at the same time, on his version of events, or around about the same time, so he lost visibility, and he couldn't see what he was doing, he wasn't properly seated in the car and he put his foot down, he thought he was [braking], but he must have hit the accelerator, and therefore if he hit these people it was an accident, in effect.

     What the Crown says is no, he drove directly at these people, he must have at least foreseen as a possibility that driving directly at these people at speed he was going to hit them, one or other or all of them, and that even if he didn't actually foresee that, well, certainly any reasonable person would have foreseen driving at someone at speed there is quite a high possibility that you are going to hit them and hurt them.

     So, the Crown says on all those limbs, accident is excluded.  So that's the two sides of it.  The evidence raises for your consideration the possibility that neither the accused nor an ordinary person could reasonably have foreseen that the injuries to the complainants would happen.

     If the accused did not intend or foresee the grievous bodily harm in the case of Ringrose, or the bodily harm for the other two, as a possible outcome of his actions; and the action in question is driving a motor vehicle with a defective seat, so you put it - yourself in the situation that he was actually in.  And if an ordinary person in the position of the accused would not have foreseen that as a possible outcome of those actions, then the accused would be excused by law, and you'd have to find him not guilty.

     It's not for the accused to prove it, remember.  The Crown has to prove beyond reasonable doubt that the defence does not apply.  All right, so is that what you were after, ladies and gentlemen?"

[31]  The learned trial judge's redirection was principally directed to the consequences of the appellant's acts.  While her Honour did make reference to unintended acts, that direction slid into reference to the consequences of an act, and was, therefore, more germane to s 23(1)(b) of the Criminal Code than to s 23(1)(a).  Her Honour did not make it clear to the jury that if they accepted that, when the appellant's vehicle moved forward to strike the complainants, he lost control, then the defence of accident would arise under s 23(1)(a).  This redirection was, therefore, not apt to cure the first problem which arose from her Honour's original directions to the jury.  Furthermore, her Honour's redirection did not address, much less cure, the second problem which arose from her earlier direction by making it clear that, whether or not the collision between the appellant's vehicle and the complainants occurred on the appellant's side of the fence line, the jury was obliged to consider whether the complainants were struck because of the unwilled act of the appellant in putting his foot on the accelerator rather than the brake.

[32]  It is, therefore, necessary, in my respectful opinion, to accept that the learned trial judge's directions to the jury on the issue of accident did not ensure that the jury understood that, whether or not the collision with the complainants occurred on the appellant's land, if they were not satisfied beyond reasonable doubt that his vehicle lunged forward into the complainants because the appellant unintentionally hit the accelerator rather than the brake, the appellant was entitled to be acquitted. 

The respondent's arguments

[33]  The respondent argues that, on the appellant's version of the incident, no occasion arose to refer to s 23(1)(a) of the Criminal Code.  In particular, in relation to the count of grievous bodily harm, the respondent emphasises that the appellant's account was that the complainant, William Ringrose, threw himself at the van being driven by the appellant before the appellant lost control of the van.  On the appellant's version of the incident, there was no occasion for the learned trial judge to refer to s 23(1)(a) at all so far as the charge of causing grievous bodily harm to William Ringrose was concerned: on this version, the appellant had not "accidentally" hit the accelerator when this complainant came into collision with the van. 

[34]  The respondent's argument on this point must be accepted.  While the jury were entitled to accept some parts of the evidence of either the Crown witnesses or the appellant and to reject others, they were not entitled to speculate about possibilities for which there was no support in the evidence.  If the jury accepted the appellant's account of the injury to William Ringrose, or were not satisfied beyond reasonable doubt that it was not true, then the appellant would have been entitled to an acquittal on the basis that his actions had nothing to do with William Ringrose's injuries, but s 23(1)(a) would have had no part to play in reaching this conclusion.  There was no evidence, other than the appellant's version, which could raise a defence under
s 23(1)(a) of the Criminal Code in respect of the first count on the indictment.  There was, therefore, no evidence on which the jury might have held that the appellant had driven into this complainant by accident.   

[35]  Accordingly, I am respectfully of the opinion that, in relation to count 1 of the indictment, there was no occasion for a direction to the jury in respect of s 23(1)(a).  The appeal in relation to this count must be dismissed. 

[36]  The respondent made a broader submission relating to the other two counts.  This submission was that because, on the appellant's version of events, he deliberately moved his foot in the direction of the accelerator, the act or omission for which he was alleged to be criminally responsible could not be said to have occurred independently of his will. 

[37]  In my respectful opinion, this submission cannot be accepted.  It fails to appreciate that the act or omission which is said to have occurred independently of the appellant's will was, not simply the movement of his foot, but the connection of his foot with the accelerator.  It was this connection between foot and pedal which was, as a matter of common sense, the "act", the consequence of which was the movement forward of the appellant's van. 

[38]  The respondent relies upon the observations of Gibbs J in Kaporonovski v The Queen[2] where his Honour said that:

"the 'act' to which [s 23(1)(a)] refers is some physical action, apart from its consequences – the firing of the rifle rather than the wounding in Vallance v The Queen and the wielding of the stick, rather than the striking or the killing of the baby in Timbu Kolian v The Queen." 

[39]  But even the examples given by Gibbs J show that the concept of an "act" within s 23(1)(a) embraces human movement in association with some mechanism or implement.  This view of the meaning of the word "act" within s 23(1)(a) accords with the decision of the Court of Criminal Appeal of the Supreme Court of Western Australia in Duffy v R[3] and the observations of McPherson JA in R v Fitzgerald.[4]  Nothing in the recent decision of the High Court in DPP (NT) v WJI[5] warrants a different approach.  Just as a person can be criminally responsible for the consequences of the discharge of a gun only if the discharge of the gun was a deliberate choice by that person,[6] so the appellant could be criminally responsible for the consequences of driving his vehicle forward only if he made a choice to drive the vehicle forward by hitting the accelerator.  Just as the discharge of a gun would not be a willed "act" if the person firing it believed that he or she was engaging the safety catch, so the hitting of the accelerator was not a willed act if the appellant meant to hit the brake.

[40]  The broader submission advanced by the respondent must, in my respectful opinion, be rejected. Accordingly, I conclude in relation to the second and third counts on the indictment, ie the charges of assault occasioning bodily harm to Dion Ringrose and John Llewellyn, that the appellant did not receive the benefit of a clear direction to the jury that his guilt could not be determined without a consideration of s 23(1)(a) of the Criminal Code.

The proviso

[41]  It is, therefore, necessary to consider whether s 668E(1A) of the Criminal Code applies to prevent the convictions on the second and third counts being set aside.  The issue is whether no substantial miscarriage of justice occurred notwithstanding the inadequate direction to the jury.

[42]  This Court must itself enquire whether it is satisfied that no miscarriage of justice has occurred.  As was said by the High Court in Weiss v The Queen, this Court's "task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict".[7]  In accordance with the decision in Weiss v The Queen,[8] it cannot be said that "no substantial miscarriage of justice" has occurred unless this Court "is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty".[9]

[43]  Mr Copley of Counsel, who appeared for the respondent, acknowledged that, where a trial judge has failed to direct the jury upon an available defence, it will usually be the case that it will not be possible to persuade this Court to that conclusion.  He went on to submit that, in this case, this Court could not entertain any reasonable doubt of the guilt of the appellant on the second and third counts on the indictment.

[44]  In my respectful opinion, Mr Copley's acknowledgment and submission properly accord due recognition to the responsibility of this Court to consider whether s 668E(1A) of the Criminal Code applies, while at the same time recognising that it will be rare, in cases where crucial evidence is in dispute, that this Court will be able to be satisfied that there is no issue of fact upon which the guilt of an accused depends, which can only be satisfactorily resolved by a jury.  Notwithstanding the able arguments of Mr Heaton of Counsel who appeared for the appellant, I have come to the conclusion that it would be perverse of any jury to entertain a doubt as to whether the appellant drove into Dion Ringrose and John Llewellyn only because he unintentionally hit the accelerator when he meant to hit the brake.

[45]  In my respectful opinion, the appellant's case that he hit the accelerator when he meant to hit the brake simply strains credulity too far.  This version emerged from the appellant only after difficulties in his initial versions were drawn to his attention.  It is impossible to resist the impression reading the record of interview that one is witnessing a self-serving reconstruction of events rather than a candid narrative of events as they occurred.  The appellant's version that he hit the accelerator because the seat somehow moved is unlikely, to say the least, having regard to the absence of any suggestion that he had experienced even the slightest problem in that regard when, on his own account, he was driving about earlier in the evening.  Indeed, this version is belied by his earlier statements in his record of interview that his seat "did not move at all" during his manoeuvrings prior to the crucial incident.

[46]  Further, the appellant's case depends on the fundamental proposition that he hit the accelerator when he meant to hit the brake because his vehicle had already been hit by William Ringrose.  This proposition cannot be accepted.  The assertion that William Ringrose hurled himself at the front of a moving vehicle is inherently unlikely and is contradicted by the appellant's earlier version in his record of interview that the three complainants were attempting to flee back over the fence when he collided with them.  This assertion is without support in the evidence of any other witness; and, indeed, is contradicted by the evidence of the witnesses called by the Crown.  In this regard, the case is not one of word against word: there were several witnesses who gave evidence that the appellant simply drove through the fence into the complainants.  It was not suggested on behalf of the appellant that these witnesses had got together to fabricate their evidence about this incident.  Their evidence accorded with the marks on the ground which suggested that the appellant's van drove straight at the point of collision over a distance of about 34 metres.

[47]  Accordingly, I conclude that, on the whole of the evidence, I have no doubt that the appellant's collision with the complainants occurred, not because he mistakenly hit the accelerator rather than the brake of his van, but because he deliberately drove at them.  On that basis, no substantial miscarriage of justice has occurred, and none of the convictions should be set aside.

Conclusion and order

[48]  In relation to the first count on the indictment, there was no occasion for the learned trial judge to direct the jury in relation to s 23(1)(a) of the Criminal Code. While the learned trial judge's directions on s 23(1)(a) of the Criminal Code were deficient in relation to the second and third counts, the conviction of the appellant did not involve a miscarriage of justice.

[49]  In my respectful opinion, the appeal should be dismissed.

[50]  WHITE J:  I have read the reasons for decision of Keane JA and agree with his Honour that the appeal should be dismissed for those reasons.  However, because that result, so far as counts 2 and 3 are concerned, depends on the application of the proviso – s 668E(1A) of the Criminal Code – I should add some observations of my own.  This is particularly so where the trial judge has failed to direct the jury adequately or at all about a potentially available defence.

[51]  As Kirby and Callinan JJ observed in Libke v The Queen[10]

“Justice is to be administered according to law.  Justice, in strict terms, miscarries whenever there is a departure from proper process.  Not every such departure will necessarily produce a substantial miscarriage of justice.  When however there is a departure from what the law requires, an appellate court, although it does not act upon a presumption that the departure has necessarily produced a substantial miscarriage of justice, proceeds upon the basis that, the accused having been denied a trial according to law, he or she may well have been a subject of such a miscarriage.”

Although their Honours dissented in the result in that case, those observations relating to the proviso were not inconsistent with those of the majority of the Court who considered it.

[52]  Mr Michael Copley for the respondent accepted that once a failure to explain an available defence to the jury has occurred it is for the prosecution to persuade the appellate tribunal that, nonetheless, there has been no miscarriage of justice.  As Weiss v The Queen[11] requires, an intermediate appellate court must make its own independent assessment of the evidence and determine whether,

“… making due allowance for the ‘natural limitations’ that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.”[12]

[53]  I have read the whole of the record.  Keane JA has set out in his reasons those passages which reflect the many different accounts which the appellant gave of the crucial events of the evening.  The appellant’s bizarre late explanation of the moving driver’s seat to account for hitting the accelerator rather than the brake against his acknowledged earlier activities of doing “donut” manoeuvres in his car and driving to telephone the police without mishap, strains credulity, as Keane JA has observed.

[54]  Equally unbelievable is the appellant’s evidence that William Ringrose deliberately jumped up onto the windscreen of the appellant’s car as it travelled towards him, particularly when he had earlier said in his record of interview that William Ringrose and Dion Ringrose and John Llewellyn had started to run towards the dividing fence when his car struck them.  All the witness evidence adduced by the prosecution contradicted the account of the appellant as well as evidence about the tyre marks and mounds of earth as explained by the police traffic expert.

[55]  Like Keane JA, I am persuaded beyond reasonable doubt that the complainants sustained their injuries as a consequence of the appellant deliberately driving his car at them and hitting them.  Accordingly, there has been no substantial miscarriage of justice by the failure of the trial judge to explain the defence of accident so far as it related to the appellant’s account of events which occurred on his property.

[56]  ATKINSON J:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree that the appeal should be dismissed for the reasons given by His Honour.