ISSUE 5 2008 - Sweet & Maxwell

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410 Global Digest [<strong>2008</strong>] 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 © SWEET &MAXWELL
Crim. L.R. Cases 411 bodily harm. An alternative proposal is to introduce provisions which establish a rebuttable presumption that a person who has fallen asleep at the wheel did, in fact, have a prior awareness that they were at risk of falling asleep. The presumption could be rebutted by drivers who could establish on the balance of probability that they had no prior warning of sleepiness. The Institute acknowledges that while research suggests that healthy drivers do have prior warning that they are sleepy, some drivers are not good at predicting how close to falling asleep they are. Moreover, what research exists is based on a small number of healthy drivers and has been conducted in artificial conditions. Nonetheless, such a presumption would overcome the evidentiary difficulties that prosecutors currently encounter in establishing that a driver knew he was at risk of falling asleep. In a final option, the Institute suggests that road traffic legislation could be amended specifically to exclude falling asleep at the wheel from being relied upon by an accused in relation to driving offences. The paper is available on the Institute’s website: http://www.law.utas.edu.au/ reform/jiminez issues paper A4-PDFfinal 4 Sept 07.pdf [Accessed February 19, <strong>2008</strong>]. © SWEET &MAXWELL
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ISSUE 5 2008 - Sweet & Maxwell

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