ISSUE 5 2008 - Sweet & Maxwell

410 Global Digest [2008]
necessary for the trial judge in her summing-up to have denied the implication that
the parts of the video recording that they had seen was evidence of the appellant’s
emotional state. In order to distance the evidence from the purpose suggested by
the prosecution, a suitably framed direction was required.
There was a distinction to be drawn between a direction and a comment. This
reflected the fundamental division of functions in a criminal trial between judge and
jury. Telling a jury that they may attach particular significance to a fact or suggesting
that evidence may be considered of greater weight, is comment. Comment may
properly be ignored by a jury. A direction will contain warnings about either the
degree of care needed in assessing some evidence, or the use to which it may be
put. A direction is something that the law requires the judge to issue and the jury
to heed.
In the present case the judge’s statements were no more than comment. The
evidence available to the jury was only part of the video recording and it was
necessary for the jury to be directed in unequivocal terms that they could not safely
draw the inference that the prosecutor had invited them to draw, and that they
should ignore the remarks. The trial judge’s statements were directed to the reasons
why they might give the evidence lesser weight that other more contemporaneous
evidence. However, they failed to deny its evidentiary effect and the misdirection
amounted to an error of law.
Criminal Liability of Drivers who Fall Asleep Causing Death—Australia
Tasmania Law Reform Institute, Issues Paper No.12: Criminal Liability of Drivers
Who Fall Asleep Causing Motor Vehicle Crashes Resulting in Death or Other Serious
Injury (Jiminez: 2007)
Causing death by dangerous driving; Criminal liability; Fitness to drive;
Tasmania
The Tasmania Law Reform Institute has published an issues paper dealing with the
criminal liability of drivers who cause death and serious injury as a result of falling
asleep at the wheel. The paper considers the implications and practical difficulties
caused by the decision of the High Court of Australia in Jiminez v The Queen (1992)
173 C.L.R. 572. In that case it was held that the actions of a sleeping driver were
not conscious or voluntary, which meant that he or she could not be criminally
responsible for driving the car in a dangerous manner. Where a driver has fallen
asleep the focus of the inquiry to determine criminal liability is, therefore, on the
driving which preceded the moment when the driver fell asleep. The prosecution
is required to prove that the driver was ‘‘affected by tiredness to an extent that, in
the circumstances, his driving was objectively dangerous’’.
The Institute notes the perception that the decision in Jiminez has made it more
difficult to secure convictions where drivers have fallen asleep. Among the options
for reform of the relevant Tasmanian legislation is the introduction of a legislative
provision reflecting Jiminez. This would specify that if there is an appreciable risk
of falling asleep, driving while sleepy may constitute negligence or dangerousness
in circumstances in which the driver falls asleep and causes death or grievous
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