SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P: The appellant was convicted after a two day jury trial of dangerous operation of a vehicle causing death and grievous bodily harm.  He was sentenced to two years imprisonment suspended after nine months.  He has appealed against his conviction on three grounds.  The first ground of appeal is that the judge erred in his directions to the jury on the issue of sleep.  For the following reasons, I consider that this ground of appeal is made out so that the appeal against conviction should be allowed.

[2] When interviewed a couple of weeks after the accident, the appellant agreed he told police officers at the accident scene when trying to apprehend how he had driven onto the incorrect side of the road and collided with an on-coming vehicle, that he may have fallen asleep.  It was therefore rightly common ground at trial and in this appeal that this evidence raised a defence under s 23(1)(a) Criminal Code 1899 (Qld) that the dangerous driving was an act or omission that occurred independently of the exercise of his will in that he may have operated his vehicle dangerously while momentarily and suddenly asleep.

[3] The case therefore came within that category discussed in Jiminez v The Queen[1] “where there was evidence that the [appellant] fell asleep at the wheel and there was no real evidence that he had any warning of the onset of sleep”.[2]  Adapting what was said in Jiminez to the evidence in this case, the jury therefore should have been instructed that, if they were satisfied beyond reasonable doubt that the driving was objectively dangerous to the public, then they must consider whether they were satisfied beyond reasonable doubt that the appellant when doing so was not momentarily and suddenly asleep.  If so, his actions whilst asleep would be involuntary and could not amount to dangerous operation of a motor vehicle.  They could only convict the appellant if they were satisfied beyond reasonable doubt, first, that his driving was objectively dangerous to the public, and, second, that he did not do so during a period when he had fallen asleep momentarily and without warning. 

[4] Early in the judge’s summing up to the jury his Honour referred to a written direction he had given them in these terms:

“I also intend to give you a written direction about what has to be proved by the prosecution in relation to the element of dangerous operation.  I will include in that direction reference to this issue of sleep because that raises a legal issue for you to consider if you reasonably draw the inference that it was possible that he did go to sleep … .”  (my emphasis)

[5] The written direction included the following:

“In this case the defence submits that you will infer that the cause of the [appellant’s] driving onto the incorrect side of the road (if you so find) was that he fell asleep momentarily. This submission is based on the record of interview. The prosecution submit that there is no reasonable basis on which you could draw this inference, in fact it submits that the evidence is to the contrary, in that the [appellant] said that when he told that to police officers at the scene, he was guessing and in fact he was not tired and was concentrating on driving and felt normal. [The prosecutor] submits that the defence is asking you to engage in speculation which you must not do. If however you as reasonable people find that such an inference is open on the evidence, then you will have to consider whether the act of driving onto the incorrect side of the road was the willed act of the [appellant]. A person is not criminally responsible for an act which the prosecution does not prove beyond a reasonable doubt was a willed act. The prosecution must exclude beyond a reasonable doubt the possibility that the driving onto the incorrect side of the road by the [appellant] occurred independently of the exercise of his will because at the time he fell asleep momentarily. There is no evidence that he suffers from sleep disorders that cause a person to fall asleep suddenly and without warning; and indeed he specifically said he did not suffer from such conditions when asked directly in the interview. You will only have to consider this issue if you are satisfied on the evidence that a reasonable inference can be drawn that just prior to the [appellant’s] vehicle proceeding onto its incorrect side of the road, he momentarily fell asleep without warning. If you are not prepared to draw that inference this issue does not arise. The prosecution have to prove beyond a reasonable doubt that the act of driving onto the incorrect side of the road was the willed act of the [appellant] in the sense that it occurred in the course of driving when he was conscious of what he was doing. The prosecution do not have to prove that he intentionally drove onto the wrong side of the road. It has to prove that when he did that he was conscious and if you are so satisfied, you then have to consider by reference to the earlier part of this direction, whether his driving in all the circumstances that you find was objectively dangerous.”  (my emphasis)

[6] Later in his Honour’s oral directions he stated, consistent with the written directions:

“In this case, the defence submits that you will infer that the cause of the [appellant’s] driving onto the incorrect side of the road … was that he fell asleep momentarily and suddenly. This submission is based on what the [appellant] said in the record of interview.

The prosecution submit that there is no reasonable basis on which you could draw this inference, in fact [the prosecutor] submits that the evidence is to the contrary in that the [appellant] said that when he told that to police officers at the scene he was guessing, and in fact he was not tired and was concentrating on driving and felt normal. [The prosecutor] submits that the defence is asking you to engage in speculation, which I’ve told you you must not do.

If, however, you, as reasonable people, find that such an inference is open on the evidence then you will have to consider whether the act of driving onto the incorrect side of the road was as a result of the willed act of the [appellant]. A person is not criminally responsible for an act which the prosecution does not prove beyond a reasonable doubt was a willed act. The prosecution must exclude beyond a reasonable doubt the possibility that the driving onto the incorrect side of the road by the [appellant] occurred independently of the exercise of the will because at the time he fell asleep momentarily and unexpectedly.

There is no evidence that he suffers from sleep disorders that cause a person to fall asleep suddenly and without warning, and indeed he specifically said he did not suffer from such conditions when asked directly in the interview. You will only have to consider this issue if you are satisfied on the evidence that a reasonable inference can be drawn that just prior to the [appellant’s] vehicle proceeding onto its incorrect side of the road, he momentarily fell asleep without warning.  If you are not prepared to draw that inference, this issue does not arise.

The prosecution have to prove beyond a reasonable doubt that the act of driving onto the incorrect side of the road was a willed act of the [appellant] in the sense that it occurred in the course of driving when he was conscious of what he was doing.”  (my emphasis)

[7] These directions were discussed with counsel prior to the commencement of closing addresses and no objection was raised to them.  Nor was any redirection sought at the conclusion of the summing up.  But that does not assist the respondent if a misdirection of law has resulted in a miscarriage of justice. 

[8] There is no doubt that the judge made plain to the jury that they could convict the appellant only if the prosecution proved beyond reasonable doubt that his act of driving onto the incorrect side of the road and colliding with the on-coming vehicle was a willed act and not one done whilst he was momentarily and suddenly asleep.  But there was a real danger that his Honour’s directions considered as a whole may have misled the jury into thinking that the appellant could only benefit from the sleep defence if he first established that there was a reasonable inference from the evidence that he momentarily and unexpectedly fell asleep.  The italicized directions were confusing in that they suggested the jury adopt a two-step process, partially reversing the onus of proof: only if satisfied that sudden and momentary sleep was a reasonable inference did the prosecution need to disprove this beyond a reasonable doubt.  That approach confuses the real issue.  There must be evidence to raise the sleep issue but once it is raised, as trial counsel and the judge rightly conceded it was here, then it was for the prosecution to negative the defence under  s 23(1)(a) of an unwilled act because of momentary and sudden sleep beyond reasonable doubt.  The appellant had no additional evidentiary onus. 

[9] I consider the judge’s directions may have led the jury to reach their verdict on a wrong basis and that this has deprived the appellant of the chance of an acquittal.  This amounts to a miscarriage of justice.  The appeal must be allowed, the conviction set aside and a new trial ordered.  It is unnecessary, therefore, to consider grounds 2 and 3.  I agree with the orders proposed by Muir JA.

[10] MUIR JA: Introduction The appellant appeals against his convictions on 5 September 2012 of the offences of dangerous driving causing death and grievous bodily harm.  The grounds of appeal, including two grounds added by leave, were:

1. the trial judge erred in law in failing to properly direct the jury on the issue of sleep;

2. the trial judge erred in law in failing to leave mistake of fact to the jury; and

3. the trial judge erred in failing to properly direct the jury with respect to admissions.

[11] In order to properly understand the grounds of appeal and the arguments advanced in relation to them, it is necessary to say something of the relevant evidence.

The evidence

[12] On 20 June 2011, the appellant was driving a Honda Odyssey van northbound on the Steve Irwin Way towards the Australia Zoo near Beerwah.  Also in the vehicle were the appellant’s wife, two adult friends and two young children.  The deceased was driving a white utility in the opposite direction.  The van failed to follow the curve of a sweeping left bend and travelled ahead onto the wrong side of the roadway.[3]  Immediately before impact the van swerved to the left.  It seems that the utility also swerved in an attempt to avoid the collision.  The vehicles collided head on.  The two adult passengers in the appellant’s vehicle suffered grievous bodily harm.

[13] The collision occurred at about 1.00pm on a fine and clear day.  Visibility was good.  The speed limit was 80 km/h and there was no suggestion that the appellant was travelling at excessive speed or that speed contributed to the accident.

[14] There was conflicting evidence about whether, at the time of impact, the van was entirely on the wrong side of the road, but its precise location at that time is not of concern for present purposes.  It was accepted by the defence on the trial and by the appellant on appeal that the appellant’s vehicle had travelled onto the wrong side of the road immediately before the accident and that the van and the utility had both taken ineffective evasive action. 

[15] A passenger in a car following the van observed that the van did not take the curve, but went straight ahead.  She did not notice brake lights on the van prior to the impact and, prior to its veering off course, she had not noticed anything irregular about the movement of the van.  Her husband, who was driving, gave similar evidence.

[16] Ms Sims, who was a passenger in a car driven by her daughter which was behind the utility, saw the van come on to the wrong side of the road.  She said she had a clear view at all times.  Her daughter gave similar evidence.

[17] Ms Guiver, the driver of a car which was the second or third car behind the utility, said:

“I first observed… an oncoming vehicle which travelled towards the centre of the road and then it moved… with quite a jagged movement, it moved from the driver’s point of view, right across the road to the left and then right again and continued into the path of the utility on our side of the road.”

[18] The passenger in Ms Guiver’s vehicle, Mr Ambrose, said:

“… the other car sort of veered off the road and hit the dirt patch. I distinctly remember a dirt puff appear from the ground, and then it over-compensated and swerved into the other oncoming traffic…”

[19] This exchange occurred:

“Okay. So, it moved to the left?-- Yes.

To the driver’s left, and then back towards the middle of the road?-- Yep.

The movement to the left, how would you describe that?-- It wasn’t - it was pretty subtle; it wasn’t very noticeable apart from the fact that I noticed it happened gradually and that’s what happened that brought me to the attention of what happened next, and I kind of reacted from there.”

[20] Describing the movement of the van after it had moved gradually to the left and caused what seemed to be a puff of dust, Mr Ambrose said:

“It cut from the dirt straight across onto our side of the road and the ute seemed to just veer a little bit and they collided head-on.”

[21] The appellant was not on drugs or medication.  There was no evidence that he was tired and there was an obvious white line in the middle of the road. 

[22] Police officers Cook and Collins, who had attended the scene of the accident shortly after it occurred, gave evidence.  Officer Cook, who was an accident investigation specialist, gave no evidence of having spoken to the appellant at the accident scene.  Constable Collins, having refreshed his memory from his notebook, gave this evidence:

“So the conversation I had with the [appellant], I asked him - that I recorded in my notebook at the time, was he on - ‘Are you on any medication?’ His reply was no. I then asked the question: ‘Have you taken any medication or drugs?’. He then answered no. I then said to him, the [appellant]: ‘Can you tell me how the accident happened?’ He informed me that he was travelling north on Steve Irwin Way to Australia Zoo, he drove from Omaroo. All he can remember that: ‘I was driving on Steve Irwin Way and was on the wrong side of the road and saw the other car coming towards me. I tried avoid hitting the vehicle but was unable to’.”

[23] In cross-examination defence counsel did not challenge the accuracy of Constable Collins’ evidence.  He elicited from him that there had also been an earlier conversation between the appellant and himself.  Constable Collins was not asked about the content of that conversation.

[24] On 6 July 2011, the appellant was interviewed by police officers in the presence of his solicitor.  After the interview had proceeded for an unspecified, but considerable, time, there was a power blackout and the earlier recording was lost.  The interview recommenced and, initially, covered the ground which had been traversed before.  The appellant accepted that he had said earlier that he had seen the car coming towards him prior to the crash and had taken evasive action.  He accepted that when asked earlier if he had suffered any blackouts or had fallen asleep he had said no.  The interviewer said, “I raised the question that you, um had told the officers at the scene that you’d fallen asleep”.  The appellant said, “Yes”.  The interviewer continued, “And you said that, um and I’ll put it in my words, um that’s the only thing you could think of as to why the accident occurred”.  The appellant responded, “Yeah”.  Asked if he wanted to expand on that, the appellant responded in the negative.  The interviewer said, “It was a guess” and the appellant responded, “Yeah, yes”. 

[25] Later in the interview, the appellant said: “Like as I said earlier, like, ah my guess is that I must have closed my eyes for a fraction of a second”.  The appellant said that he was “a few metres” from the other vehicle when he saw it.  Asked if there was any reason “that you can say why you didn’t see the car before then”, the appellant responded, “Well that’s what I said, like, ah I’m not able to, like [INDISTINCT] what happened, actually”.  He said he tried to turn the steering wheel to avoid the crash, but could not.  At the time of the accident, he was not distracted and was concentrating on his driving and at the time of the crash he was looking “straight at the road”.

[26] The interviewer asked if the appellant could explain why his vehicle was on the incorrect side of the road at impact and his solicitor responded:

“… he has explained enough that he doesn’t know, he was concentrating, he doesn’t want to, ah he can’t admit [INDISTINCT] so he’s not in a position to comment anything. He said, when he came out, his priority was, he [INDISTINCT] an accident, his priority was to look after his wife.”

[27] In response to the interviewer saying, “So you, um you can’t remember driving onto the wrong side of the road prior to the collision?”, the appellant responded, “No”.

Ground 1

The appellant’s argument

[28] Counsel for the appellant submitted to the following effect.  The appellant said to officers at the scene that he thought that he may have fallen asleep.  The prosecutor accepted in argument in the absence of the jury before addresses that it was open for the jury on the evidence contained in the record of interview that an inference could be drawn that the appellant “momentarily, and without warning, fell asleep”. 

[29] If a person suddenly falls asleep without warning, the prosecution must exclude the defence of accident.[4]  Once there was some evidence of sleep, the prosecution had to disprove any defence which it raised.  Here, the jury should have been told distinctly that accident was raised on the evidence and that the Crown was required to disprove it.  The relevant part of the summing up was summarised in the appellant’s outline of submissions as follows:

“The trial judge told the jury that the defence case was that they should infer that the Appellant was asleep momentarily and suddenly. The trial judge then told the jury ‘[The Prosecutor] submits that the defence is asking you to engage in speculation which I’ve told you you must not do.’ [He then said] that if [the jury] do find the inference is open, they must consider whether it was a willed act or not. [The jury were then told] that there was no evidence the Appellant had a sleep disorder or other health condition to cause his falling asleep. (He later repeated this when summarising the Crown case).  Then, the trial judge went on to tell the jury that they only have to consider this issue if they reasonably infer that the Appellant was asleep.”

[30] The emphasised passages tended to impermissibly reverse the onus of proof.  Consequently, there was a miscarriage of justice as there was a real risk that the jury may have understood that the prosecution would succeed in proving its case beyond reasonable doubt if the defence failed to convince the jury to the contrary.[5]

[31] In a case where sudden sleep is relied on:

1. to dismiss sleep as a defence for dangerous operation the prosecution must prove that the driver was aware that he or she was tired or suffered some other condition that compromised his or her ability to remain awake while driving; and

2. if the jury is satisfied that the appellant was asleep, the act was not intentional, it was not willed and the appellant is not criminally responsible for events that occur while the appellant is asleep.[6]

[32] The jury should have been directed on these matters.

[33] Additionally, the summing up should have dealt with:

1. whether the appellant had a reasonable amount of sleep before driving;

2. the length of time during which the appellant had been driving;

3. whether there was evidence of drug or alcohol consumption; and

4. whether there was any warning of the onset of sleep.

Consideration

[34] In his summing up the trial judge put the defence argument and then the prosecution argument in relation to accident as follows:

“In this case, the defence submits that you will infer that the cause of the defendant’s driving onto the incorrect side of the road, which in accordance with submissions made by Mr Woodford in his concluding address is not contested, was that he fell asleep momentarily and suddenly. This submission is based on what the defendant said in the record of interview.

The prosecution submit that there is no reasonable basis on which you could draw this inference, in fact Mr Cummings submits that the evidence is to the contrary in that the defendant said that when he told that to police officers at the scene he was guessing, and in fact he was not tired and was concentrating on driving and felt normal. Mr Cummings submits that the defence is asking you to engage in speculation, which I’ve told you you must not do.”

[35] The trial judge then emphasised that in order to succeed, the prosecution had to prove beyond reasonable doubt that the act of driving onto the incorrect side of the road was a willed act of the appellant.  Moreover, it was expressly stated that the prosecution had the onus of excluding beyond reasonable doubt the possibility that the appellant had driven on to the wrong side of the road because he fell asleep.  The directions were:

“If, however, you, as reasonable people, find that such an inference is open on the evidence then you will have to consider whether the act of driving onto the incorrect side of the road was as a result of the willed act of the defendant. A person is not criminally responsible for an act which the prosecution does not prove beyond a reasonable doubt was a willed act. The prosecution must exclude beyond a reasonable doubt the possibility that the driving onto the incorrect side of the road by the defendant occurred independently of the exercise of the will because at the time he fell asleep momentarily and unexpectedly.

There is no evidence that he suffers from sleep disorders that cause a person to fall asleep suddenly and without warning, and indeed he specifically said he did not suffer from such conditions when asked directly in the interview. You will only have to consider this issue if you are satisfied on the evidence that a reasonable inference can be drawn that just prior to the defendant’s vehicle proceeding onto its incorrect side of the road, he momentarily fell asleep without warning.  If you are not prepared to draw that inference, this issue does not arise.

The prosecution have to prove beyond a reasonable doubt that the act of driving onto the incorrect side of the road was a willed act of the defendant in the sense that it occurred in the course of driving when he was conscious of what he was doing. The prosecution do not have to prove that he intentionally drove onto the wrong side of the road. It has to prove that when he did that he was conscious, and if you were so satisfied you have to then consider, by reference to the early part of this direction and your view of the evidence, whether his driving in all the circumstances was objectively dangerous.” (emphasis added)

[36] The trial judge also provided the jury with written directions which contained a passage materially identical to the above part of the summing up.

[37] The words in italics were the focus of the argument that the trial judge had summed up in a way which effectively reversed the onus of proof.  The prosecution case was, in part, a circumstantial one.  There was no direct evidence that the appellant had fallen asleep immediately before the accident.  There was also scant evidence, apart from the fact that, without any sign of prior aberrant driving, the van had strayed from the correct side of the road, to support an inference that the cause of the vans straying was that the appellant had fallen asleep momentarily.

[38] The trial judge directed the jury that the prosecution had to exclude beyond a reasonable doubt the possibility that the aberrant driving was caused by the appellant falling asleep momentarily.

[39] Nevertheless, I have concluded that the direction had the potential to lead the jury into erroneous reasoning.  A conventional direction would have included a version of the standard circumstantial evidence direction:

“To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could drawn from the circumstances.

If there is any reasonable possibility consistent with innocence, it is your duty to find the defendant not guilty.  This follows from the requirement that guilt must be established beyond reasonable doubt.”

[40] That direction, which is customary but not always essential in cases turning on circumstantial evidence,[7] highlights the possibility of competing inferences and the obligation to acquit if there is any reasonable hypothesis consistent with innocence.  The jury’s attention was not drawn to these considerations.  This omission assumed significance because of the second of the two sentences under consideration: “If you are not prepared to draw that inference, this issue does not arise”.  “That inference” is a reference to the inference that “just prior to the [van’s] proceeding onto its incorrect side of the road, [he] momentarily fell asleep without warning”.  There was thus a distinct risk that the jury might focus on whether they were prepared to draw the necessary inference rather than whether the inference that the appellant had fallen asleep without warning was reasonably or rationally open on the evidence.

[41] The problem thus created was compounded by the invitation to the jury that they could, in effect, conclude their consideration of the prosecution case in respect of whether the appellant had fallen asleep momentarily and without warning once they had decided that they would not draw such an inference.

[42] The misdirection was material and deprived the appellant of a chance fairly open to him of being acquitted.[8]  Accordingly, this ground of appeal was made out.

[43] Because of the above conclusion, I will only briefly discuss the remaining criticism: that the trial judge failed to sum up on the matters referred to in paragraph [33] above.

[44] The relevant facts were before the jury.  The trial was very short.  The evidence was completed on the first day.  Most of it was uncontroversial.  Counsels’ addresses concluded at 11.49 am on the second day and the summing up concluded at 12.41 pm.  The jury’s verdict was delivered at 4.19 pm.  Although the evidence was that the appellant had taken a midnight flight from Darwin arriving in Brisbane at about 4.30 am two days before the day of the accident,  he had a lengthy and “good” sleep that day.  On the night before the accident, he went to bed at about 10.00 pm and woke at 7.00 am on the morning of the accident.  Later in his interview he confirmed that he had a good night’s sleep on the night before the accident. 

[45] In his police interview, the appellant said that he had no ailments, was not on any medication and had not consumed alcohol within 12 hours of the accident.  He denied having taken drugs when questioned at the scene of the accident.  The appellant was not asked by any police officer if he was tired or drowsy at the time of the accident, but the evidence suggested that he had no reason to be either tired or drowsy.  There was no compelling need for the trial judge to deal with these matters in the summing up.  Not only was the evidence quite limited in extent, it was simple and essentially uncontested.

Ground 2

The appellant’s argument

[46] Counsel for the appellant referred to the evidence in the record of interview which supported a subjective belief on the part of the appellant that he was on the correct side of the road until he saw the utility.  Counsel referred to the following matters: he could not give a reason why he did not see the utility before the accident; when he saw the utility he tried to avoid the accident; he did not know what had happened and whether he had closed his eyes for a second; he was looking straight ahead on the road; he did not remember driving on the wrong side of the road; and he did not remember whether he started to turn into the bend.

[47] Looking at the matter objectively, the appellant was not familiar with the road.  He was using a navigation system and not speeding or otherwise driving in a dangerous manner.

[48] The bend is a subtle one and it is conceivable that the appellant, considering the matter objectively, believed the road to continue straight, realised it did not and then corrected his alignment.  It was submitted that although defence counsel did not request that mistake be left to the jury, the trial judge had an obligation to leave mistake to the jury because it was raised by the evidence.[9]

Consideration

[49] It may be accepted that where it is open on the evidence for a jury to find mistake it must be left to the jury even if defence counsel fails to seek a direction or redirection in that regard.[10]  In this case, however, there was no evidence which could support a finding that the appellant had acted “under an honest and reasonable, but mistaken, belief in the existence of [the relevant] state of things”. 

[50] It is apparent from the record of interview that the appellant was only able to speculate as to why he had ended up on the wrong side of the road.  The evidence was, as stated earlier, that visibility was good, the curve in the road was gradual and there was an obvious centreline.  Photographs show the location of the accident including the centreline.  It was not suggested that the line was not clearly visible.

[51] Even if, which I do not accept, the appellant could have entertained a belief that when he veered onto the incorrect side of the road he remained on the correct side of the road, there was no evidence which offered even faint support for the reasonableness of such belief.

[52] Accordingly, this ground must be rejected. 

Ground 3

The appellant’s arguments

[53] Counsel for the appellant contended that as the record of interview contained a number of statements which could have been regarded by the jury as admissions against interest, the trial judge was required to direct the jury that before they could act on an admission they had to be satisfied that it was made and that it was true.[11]  Additionally, the trial judge should have directed the jury that the appellant’s failure to comment on why his van was on the wrong side of the road should not be matters relied on to draw any inference against the appellant.  Additionally, the failure to comment was an exercise of the appellant’s right to silence.[12]

Consideration

[54] As counsel for the respondent pointed out, there is no question about the accuracy of the recording.  It was admitted into evidence without objection indicating that defence counsel had no concern about its contents.  Defence counsel’s failure to seek an appropriate direction or redirection is not necessarily fatal to the success of a ground of appeal based on a criticism of a summing up.[13]  However, objectively considered, there was good forensic reason for defence counsel not to request specific directions in respect of various passages in the record of interview.  To do so would have risked unnecessary attention being drawn to those passages in the summing up.  It follows that there was no unfairness in the conduct of the trial and no miscarriage of justice occurred.[14]

[55] Moreover, the debate is academic.  The part of the summing up complained of by counsel for the appellant can hardly have been detrimental to the appellant’s case.  The surrounding words made it plain that the appellant was declining to comment on why his van was on the wrong side of the road because he was not able to provide an explanation.  He had said so, in effect, at the time of the accident.  He said the same thing at least twice in the course of the interview on 6 July.

[56] This ground of appeal was not made out.

Conclusion

[57] For the reasons given above, I would order that:

1. the appeal be allowed;

2. the verdict of guilty be set aside; and

3. there be a re-trial.

[58] GOTTERSON JA: I agree with the orders proposed by Muir JA and with the reasons given by his Honour.