SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I agree with the reasons of Gotterson JA and the orders he proposes.

[2] FRASER JA:  I have had the advantage of reading the reasons for judgment of Gotterson JA.  I agree with those reasons and with the orders proposed by his Honour.

[3] GOTTERSON JA:  On 12 September 2013 and on the fourth day of his trial in the District Court at Maroochydore, the appellant, Robert Aaron Clark, was convicted of an offence against s 328A(3)(b) and (4) of the Criminal Code (Qld) (“the Code”).  The count on which he was convicted alleged that on 23 December 2011, he dangerously operated a vehicle on Steve Irwin Way, Beerburrum and elsewhere and caused grievous bodily harm to Daniel James Gegg and Sandra Leigh Killick.  The offending was alleged to have been committed with the attendant circumstance of aggravation on the appellant’s part of having twice previously been convicted of the same prescribed offence, namely, driving a motor vehicle while under the influence of liquor.

[4] The appellant was sentenced that day to a term of imprisonment of two years to be suspended after serving nine months with an operational period of two years and six months.  An order was made disqualifying him from holding or obtaining a driver’s licence for a period of two years from the date of sentence.

[5] On 27 September 2013, the appellant filed a combined notice of appeal against conviction and an application for leave to appeal against sentence (Form 26).  This document set out four grounds of appeal against conviction and one ground of appeal against sentence.  On 16 March 2014, the appellant filed an amended Form 26 which reduced and reformulated the grounds of appeal against conviction as three grounds.  Leave to amend the grounds of appeal against conviction in accordance with the amendments was granted at the hearing of the appeal.  The appellant also filed with the amended Form 26, a notice of abandonment of his appeal against sentence.

The circumstances in which the appellant was convicted

[6] Mr Gegg and the appellant were neighbours at a caravan park in the Beerburrum area.  He testified that on 23 December 2011, he and the appellant worked on Mr Gegg’s car until dark.  He and the appellant then went for a drive in the appellant’s green Toyota Lexcen automatic station wagon.  The appellant drove.  They went to a forestry area off Glasshouse Mountains Road where the appellant did “donuts”, “spinning the wheels, purposely losing control of the vehicle”.[1]

[7] They did this for more than 20 minutes but less than an hour.  The appellant then drove the vehicle along Evans Road towards Steve Irwin Way.  It had been raining.  As they approached the intersection with Steve Irwin Way, the appellant started spinning the wheels and smoke came off them.  Mr Gegg said that he told the appellant not to spin the wheels because the road surface was slippery and wet.

[8] Immediately south of the intersection with Evans Road, Steve Irwin Way crosses Tibrogargan Creek.  There are guardrails on the sides of the bridge over the creek.  Mr Gegg gave the following account of events which occurred as they turned into Steve Irwin Way to travel south back to the caravan park:

“[W]e stopped on the edge of Steve Irwin Way and started spinning the wheels as a line lock with [the appellant’s] foot on the brakes and his foot on the accelerator to spin the back wheels … he slowly lifted his foot off the brake to turn out onto Steve Irwin Way and we sort of just [lost] control of the back of the car a little bit … and he hit the guard while we were heading back towards the caravan park … [t]hen I seen the headlights hit and I don’t remember anything after that.”[2]

[9] According to Mr Gegg, it was raining at the time sufficiently to wet the bitumen.  It had been raining on and off over several days.  There were puddles of water on the gravel edges of the road but not on the bitumen surface of it.

[10] In cross-examination, Mr Gegg said that he could not be “[one hundred] per cent sure if [the appellant] had his foot on the brake or he just put his foot on the accelerator really hard”.[3]  He maintained that the back wheels were spinning and that he could smell smoke.  He described the impact with the guardrail as like “a tap and a grind”.[4]  He accepted that in the days after the collision he could not remember precise details of it, including hitting the guardrail.

[11] Ms Killick gave evidence that she was driving her Mitsubishi Outlander north on Steve Irwin Way.  She had completed her shift at the Caboolture Hospital at about 11 pm and was travelling to her home at Glasshouse Mountains.  She had little recollection of the collision other than seeing headlights coming towards her and the airbag in her vehicle being activated.

[12] Both Mr Gegg and Ms Killick, as well as the appellant, were injured in the collision.  Ms Killick sustained a fracture to the left femur, a compound wound to her left ankle, a compound right iliac crest fracture and abdominal injuries.  She was transported by ambulance from the scene to Nambour General Hospital.  Mr Gegg was transported by ambulance to the Royal Brisbane and Women’s Hospital.  He sustained injuries to the head, a fracture of the right clavicle, rib fractures, a fracture of the sternum and internal chest injuries.

[13] Other witnesses in the prosecution case were first responders, including ambulance personnel, police and an RACQ patrolman, as well as the occupants of another vehicle, none of whom witnessed the collision.  The witnesses confirmed that it had been raining in the vicinity of the collision around the time that it occurred.

[14] Of particular significance to the prosecution case was the evidence of Senior Constable Duncan Hale of the Sunshine Coast District Forensic Crash Unit.  He was called to the collision site and arrived there around midnight.  His evidence[5] was to the following effect:

• The speed limit at the collision point was 100 kph.  Since the collision, the speed limit has been reduced to 80 kph.
• He examined the appellant’s vehicle and observed that there were horizontal scrape marks on the front left-hand side (passenger side) and rear left-hand side doors.  They were 200 mm apart and were halfway up the doors.  They appeared to be recent and fresh.  He observed green paint on the leading edges of the guardrail on the left-hand side of the southbound lane.[6]
• He was unable to say whether there was any braking by either car before the collision because of the wet road surface.
• In his opinion, the account given by Mr Gegg did not accord with the physical evidence that he observed at the scene.  In particular, he did not see any tyre marks as one would expect to see if there had been a spinning of tyres.  He explained that where wheels had been spun on a wet road surface, one would have expected to see a clean polished mark once the road surface had dried.  He did not see any such mark.  Secondly, he observed a lot of stone debris on the gravel side of the road.  There was no disturbance of the stones or dirt as one would have expected to see if there had been a “burn out” or spinning of wheels.[7]
• On the following day, he was able to examine the appellant’s vehicle.  He observed that there were patches on the tyres that appeared to be lower than the legal tread depth.
• He said that in wet conditions, the lower the tread on a tyre, the lower the friction that was available for the tyre to grip the road surface.  If the front left side tyre of the vehicle had hit a puddle on the road and then went into an aquaplane, the left-hand side of the vehicle would be slowed down and the vehicle itself would be dragged towards the left.  However, if both front tyres aquaplaned, then the vehicle would continue in a straight line.
• When he arrived at the collision site, it was raining heavily.  It was obvious that there was water on the road and there were puddles in various places.  However, he observed that the road was well drained.  He did not notice any deep puddles on the road surface.[8]
• In cross-examination, he confirmed that what he observed on a physical examination of the scene was inconsistent with the account given by Mr Gegg.
• From his examination, it appeared that the appellant’s Toyota Lexcen was at an angle when it hit the Mitsubishi Outlander.  He accepted that if a vehicle goes into an aquaplane, there is a loss of traction which prevents it from responding to “control input”.  He accepted that when all wheels go into an aquaplane simultaneously, a vehicle becomes an “uncontrollable sled”.[9]  He also explained that aquaplaning occurs when a tyre encounters more water than it can dissipate.
• He accepted that heavy vehicles can cause ruts in the road surface over time that allow water to pool and impact negatively on drainage.  He agreed that at times heavy vehicles travelled along Steve Irwin Way.[10]
• He agreed that tyres which were half worn, though still legal, would aquaplane more easily than brand new tyres.  He also agreed that under-inflation of a tyre could affect aquaplaning.  He accepted that he could not exclude the possibility that the appellant’s car went into an aquaplane just before the collision.[11]

[15] At the conclusion of the prosecution case, defence counsel made a no case submission on the basis that “accident” had been raised by Senior Constable Hale’s evidence and that the prosecution had failed to rebut it beyond reasonable doubt.[12]  The learned trial judge ruled against the submission.[13]

The grounds of appeal

[16] The appellant relies on the following grounds of appeal as amended:

1. The verdict of the jury was unreasonable and cannot be supported by the evidence.

2. The learned trial judge misdirected the jury by directing them on s 23(1)(b) of the Code.  The learned trial judge should have directed the jury on s 23(1)(a) of the Code.  The failure to properly direct the jury has resulted in a miscarriage of justice.

3. The learned trial judge failed to give a proper direction in accordance with Black v The Queen[14] when the jury indicated that they were unable to reach a verdict, thereby resulting in a miscarriage of justice.

[17] It is convenient to consider Ground 2 before considering Grounds 3 and 1.

Ground 2 – s23(1) direction

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

“(1)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—

(i)the person does not intend or foresee as a possible consequence; and

(ii)an ordinary person would not reasonably foresee as a possible consequence.”

Prior to amendment effective from 4 April 2011, paragraph (b) in the section had read “an event that occurs by accident”.

[19] The learned trial judge began summing up for the jury late on the second day of the trial.  On the following day, and prior to resuming it, his Honour invited submissions from counsel on what directions he should give “about the question of accident”.  Defence counsel proposed directions which included a direction with respect to a defence based on s 23(1)(a).  After hearing submissions from the prosecutor, his Honour expressed the view that such a direction was “somewhat duplicitous”, in that it was repetitive of the direction that he himself had proposed based on s 23(1)(b).  He thought that it had “the potential … to further confuse the jury”.[15]  Defence counsel did not persist with a request for a direction based on s 23(1)(a).

[20] His Honour then resumed the summing up, during the course of which he directed the jury as follows:

“The prosecution’s case is that given these circumstances you would conclude – or draw the inference that in those conditions, the defendant operated the motor vehicle in a dangerous manner, by virtue of the fact that he lost control of the motor vehicle to the extent of it hitting the guardrail on the Southbound side of the road – that is, on his side of the road in the direction he was travelling – and thereafter the car veered into the oncoming lane where it collided with the vehicle driven by Ms Killick.  To that extent, the Crown’s case mirrored the evidence of the police officer Hale, who was the expert witness called, and his evidence was that he believed the vehicle driven by the defendant, travelling South on the Steve Irwin [W]ay prior to the crash had left – had made contact on the left side of the vehicle with the guardrail before the vehicle crossed onto the oncoming lane and collided with the vehicle driven by Ms Killick. Now, that is the prosecution’s case.

On the other hand, it was submitted on behalf of the defence that you could not be satisfied beyond a reasonable doubt, as you are required to be, that the collision was not in fact the result of an unforeseeable and unintended event beyond the control of the defendant.  To put it another way, that it was – I think the words used by one of the counsel – it was an accident – a tragic accident – but nonetheless an accident.  Now, in this regard Mr Crews said that while no one knows exactly what happened after the motor vehicle, operated by the defendant, struck the guardrail, you would be satisfied of a number of matters in particular.  First, there was no evidence of any excessive speed on the part of the defendant at the time. Second, that the evidence is that the motor vehicle operated by the defendant at the time was not in a condition that was likely to have caused or contributed to the accident.  Next, that there was no evidence that the defendant was driving – that the defendant’s driving was affected by alcohol or any other substance that might have impaired his capacity to operate the vehicle in a safe and satisfactory way, and that if, indeed, the defendant did strike the [guardrail] prior to the collision, it was only a glancing blow or a tap.

Now, in particular, Crews said that on the night in question, the road was, as I have already said, on any version of the witnesses’, wet and unlit, and he contended that the prosecution was simply not able to establish beyond reasonable doubt that the motor vehicle operated by the defendant after striking the [guardrail] entered a puddle or a quantity of water of sufficient depth to cause the motor vehicle to aquaplane and therefore take the control of the vehicle out of the hands of the defendant.  Now, in that context, Mr Crews reminded you of the evidence of officer Hale, the expert witness, which was to the effect that an aquaplaning motor vehicle could be compared to a sled – an out of control sled, and Mr Crews also reminded you of the officer’s evidence that he could not rule out that at the time of the collision the defendant’s vehicle was in fact aquaplaning at the time.

Now, in this case it is not disputed that the collision occurred on the wrong side of the road, insofar as the defendant was concerned, and that it resulted in grievous bodily harm, but as I have already said that is not enough to convict the defendant in any shape or form.  To convict the defendant of the charge against him, you must be satisfied on the evidence beyond a reasonable doubt that at the material time the defendant was operating the motor vehicle in a dangerous manner, and that that dangerous operation was the significant or substantial cause of the grievous bodily harm to Killick and Gegg, and to be so satisfied, you must also be satisfied that the prosecution had established beyond reasonable doubt – or proved to your satisfaction beyond reasonable doubt that the collision was not the result of an unforseen and unintended event, and I must remind you here that it is not for the defence to establish that the collision was the result of an accident, but it is for the Crown to satisfy you beyond reasonable doubt that the collision was not the result of an unforeseeable or unintended event.

In this context, the prosecution have to prove beyond reasonable doubt that the act of driving onto the wrong side of the road by the defendant was a willed act on the part of the defendant, in the sense that he was conscious of what he was doing. In this case, to dismiss accident as a defence, the prosecution must prove to you beyond reasonable doubt, that either the defendant was aware he was going to aquaplane, or was aware of some other condition that compromised his ability to avoid the car going into an aquaplaning condition, or the prosecution must prove beyond reasonable doubt that an ordinary person in the position of the defendant would not have reasonably foreseen aquaplaning as a possible consequence of the manner of his driving in all the relevant circumstances, and in particular here of course, would be the condition – the wet condition of the road on that night.”[16]

[21] With one exception, these directions are couched in terms of s 23(1)(b).  There are repeated references to matters or events as being “unintended”, “unforeseen” or “unforeseeable”, reflecting the language of paragraph (b) in its current form, and to “accident”, reflecting its antecedent form.  Further, the directions identified the collision as the event to which paragraph (b) might have application.

[22] The one exception is to be found in the first sentence of the last of the paragraphs extracted above.  In speaking of proof by the prosecution of driving on to the wrong side of the road as a “willed act” on the appellant’s part, the direction used the language of paragraph (a) in s 23(1).  However, as a s 23(1)(a)-based direction appropriate to the case at hand, the direction given was flawed.  It implied that the prosecution case was that driving on to the wrong side of the road was the act which constituted the dangerous operation by the appellant of his vehicle.  But as the summation in the first sentence of the first paragraph extracted above explained, the prosecution case was based upon a dangerous operation of the vehicle before it hit the guardrail and then veered to the wrong side of the road.

[23] The appellant’s argument concerning the directions that were given has two limbs to it, neither of which is dependent upon the other for its validity.  The first limb is that no appropriate direction on a s 23(1)(a)-based defence was given.  The second limb is that the directions referenced to s 23(1)(b) that were given, were inappropriate to the defence which the appellant contended was available to him.

[24] As to the first limb of the argument, the appellant contends that, consistently with the prosecution case against him, the relevant act for the purposes of s 23(1) was his manner of driving of the vehicle immediately prior to, and up to the point of, hitting the guardrail.  The prosecution alleged that that driving was dangerous.  That it was dangerous, according to the prosecution case, was evidenced by the facts that the vehicle travelled towards, and hit, the guardrail.

[25] The appellant’s defence, which his counsel submitted was open to the jury so to find on the evidence, was that the direction of travel of the vehicle over that very short period of time and its hitting the guardrail were attributable to the wheel or wheels on its left-hand side having come into contact with pooled water on the road surface, as a result of which, beyond the appellant’s control, it aquaplaned, veering to the left and hitting the guardrail.  The direction of travel taken and the resultant impact with the guardrail occurred independently of the exercise of his will.  Those occurrences were neither a manifestation, nor a consequence, of a dangerous operation of the vehicle on his part.  According to the appellant, a defence under s 23(1)(a) was thereby engaged.

[26] It can readily be seen that the jury were not directed with respect to this defence.  The act to which that defence might have applied was not identified as such in the course of the summing up; nor was the language of s 23(1)(a) used to illustrate its relevance to the defence.  These omissions were compounded by the inappropriateness of the s 23(1)(a)-based direction which was given and to which reference has already been made.  The deficiencies in the directions on these accounts were candidly acknowledged by counsel who represented the respondent at the hearing of the appeal.[17]  It follows that the first limb to the appellant’s argument on this ground of appeal is validly made.[18]

[27] It is therefore unnecessary to consider the second limb to the appellant’s argument in any detail.  It is sufficient to observe that the adoption by his Honour of the driving on to the wrong side of the road as the relevant “event” for the purposes of an application of s 23(1)(b) served to illustrate the inapplicability of that provision to the circumstances of this case.  It is difficult to conceive that the course of travel to the wrong side of the road was neither intended or foreseen, nor reasonably foreseeable, as a possible consequence of hitting the guardrail.

[28] The appellant submits that the failure to give an appropriate s 23(1)(a)-based direction was an error which resulted in an actual miscarriage of justice.  The submission is a sound one.  In written submissions, the respondent fairly conceded that if there had been a misdirection in this respect, there was no scope for the application of the proviso in s 668E(1)(A) of the Code to it.

[29] For these reasons, this ground of appeal must succeed.  In the circumstances, I propose to deal but briefly with each of the other grounds of appeal.

Ground 3 - the Black direction

[30] After the jury had been deliberating for some three and a half hours, they delivered a note to the court which read:  “Sorry, we definitely cannot agree.  What do you advise?”[19]  Following discussion with counsel, the learned trial judge decided to give what he described as a “shorter version of the Black direction”.[20]

[31] The appellant’s single criticism of the direction that his Honour did give is that it failed to incorporate a caution to the jurors that if they could not honestly agree with the conclusions of other jurors, they must give effect to their own view of the evidence and must not join in a verdict if they did not honestly and genuinely think that it was the correct one.  In this respect, the appellant submitted, the direction given departed from the model direction formulated in Black.[21]

[32] The respondent conceded that the direction given did not follow precisely the model direction.  Specifically, it did not state the caution either in the precise terms or in terms similar to those in which it appears in the model direction.  The respondent’s argument on this ground of appeal was that no miscarriage of justice had been caused on that account.

[33] In my view, pertinent aspects of the direction then given considered in the context of the time taken by the jury for its deliberations, justify the respondent’s argument.  The Black direction was given at about 4 pm on the third day of the trial.  In giving it, the learned trial judge said:

“… [E]xperience has shown that juries can reach a unanimous verdict.  You, of course, must remain true to your oaths and affirmations that you took when you were sworn … or affirmed as jurors…[A]fter listening to each other’s concerns and the matters that they think are important and discussing them further – history has shown, as I said, juries can agree. …”[22]

[34] The jury retired and shortly afterwards indicated that they would continue their deliberations on the following day.  At that point, his Honour said to them:

“… [W]ell, when you do come back tomorrow, refreshed, it is sometimes useful for all – for each of you to explain the reasons why you are unable to reach a verdict.  And then each of you listen carefully and objectively to what each of you has to say and then take on board that person’s concerns and, you know, try and work through the process that way.  And, of course, that necessarily might require you to re-examine and go back and revisit those areas where you are in agreement, and where you are in disagreement.”[23]

[35] The next morning the jury deliberated for a further two and a half hours before returning the guilty verdict.  This sequence of events speaks eloquently against expedient, and thereby improper, compromise on the part of any of the jurors.  In my view, this ground of appeal has not been established.

Ground 1 – unreasonable verdict

[36] The essence of this ground of appeal is that the guilty verdict cannot be supported by the evidence.  The ground is one that is apt to fail if “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that [the appellant] was guilty”.[24]

[37] Here, it was plainly open to the jury to have been satisfied on the evidence that the appellant’s driving before hitting the guardrail was dangerous in the circumstances which prevailed.  It was open to the jury to reject as reasonable the hypothesis that the appellant’s vehicle aquaplaned causing it to veer to the left and impact with the guardrail.  Whilst it was common ground that the road was wet, there was no evidence that water had pooled sufficiently on the road surface to cause aquaplaning.  That Senior Constable Hale could not exclude it as a possibility did not require the jury to conclude that the aquaplaning hypothesis was a reasonable one.

[38] This ground of appeal, too, has not been established.

Disposition

[39] Since Ground 2 has succeeded, this appeal must be allowed.  Relying on observations in Director of Public Prosecutions (Nauru) v Fowler,[25] the appellant submits that the discretion to order a new trial ought not be exercised.  The appellant points to two factors as being especially relevant to the exercise of the discretion; namely, the fact that he has served over six months of the nine month period of imprisonment he must serve before the suspension becomes operative and to what he describes as a problematic prosecution case.

[40] Whilst such factors are plainly relevant to an exercise of the discretion, the circumstances of Fowler are materially different.  It is apparent from the reasons of the High Court of Australia that the decisive factor against ordering a retrial in that case was that the Supreme Court of Nauru in its appellate jurisdiction had not been asked to order a retrial in the local Magistrates Court.[26]  Here, the respondent seeks a retrial in the event that the conviction is set aside.

[41] In my view, the factors referred to by the appellant do not justify an exercise of the discretion in his favour.  Not only has the suspension not yet become operative, but also it has an operational period of two and a half years.  Moreover, I do not accept the appellant’s submission that, necessarily, it would be “difficult” for a properly instructed jury to exclude aquaplaning as a reasonable hypothesis.[27]  Whether there is to be a retrial or not ought to remain a matter for exercise of the discretion reposed in the Director of Public Prosecutions.

Orders

[42] I would propose the following orders:

1. Appeal allowed.

2. Set aside the conviction under appeal.

3. Order that there be a new trial of the appellant on the count on which he was convicted.