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Mulas v The Queen [1969] PGLawRp 471; [1969-70] PNGLR 82 (30 May 1969)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 82 - Himson Mulas v The Queen

[1969-70] PNGLR 82

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

HIMSON MULAS

THE QUEEN

Port Moresby

Mann CJ Frost Clarkson JJ

26-30 May 1969

CRIMINAL LAW - Appeal - Verdict unsafe and unsatisfactory - Dangerous driving thereby causing the death of a person - Loss of memory by accused - Conflict of evidence - Supreme Court (Full Court) Ordinance 1968, s. 28 (1).

The appellant was convicted of dangerous driving thereby causing the death of a person. The accident occurred when the appellant�s vehicle left the bitumen surface at a bend in the highway, then turned back over the road and struck the deceased who was sitting about five feet off the bitumen surface on the right-hand side of the road. The accounts of the witnesses were conflicting, in particular as to whether the accused�s vehicle had been forced off the road by an oncoming vehicle. There was also conflicting evidence as to whether the appellant was affected by alcohol. At the trial, the accused gave evidence that he was suffering from amnesia in relation to the accident. He was cross-examined as to this but his account, which was supported by medical evidence, went uncontradicted. The trial judge accepted the evidence of the collision adverse to the accused, and concluded that the appellant had been inattentive to the road and travelling at an excessive speed, and that his dangerous driving was contributed to by the quantity of alcohol he had consumed. He did not accept that the accident had occurred by reason of a situation created by an oncoming vehicle.

Held:

On appeal (Mann C.J. and Frost J., Clarkson J. dissenting) that the appeal should be allowed and the conviction set aside:

N1>(a)�� By Mann C.J. on the ground that the verdict was unsafe and unsatisfactory in that (i) the trial judge in resolving the conflict of evidence did not advert to the accused�s inability, due to amnesia arising from injury, to give evidence of the facts in issue, and (ii) that, if the additional evidence of good character adduced on appeal had been given at the trial, the result might have been different.

N1>(b)�� By Frost J. on the grounds that the trial judge failed, when considering the evidence, to direct himself as to the effect of the accused�s failure to remember the events in issue and that it was not established that no miscarriage of justice actually occurred.

Broadhurst v. The Queen, [1964] A.C. 441, and Chiu Nang Hong v. The Public Prosecutor, [1964] 1 W.L.R. 1279, discussed and applied.

Appeal.

Himson Mulas appealed against his conviction on 10th February, 1969 by the Supreme Court of the Territory of Papua and New Guinea (Ollerenshaw J.) at Rabaul of an offence that on 14th September, 1968 on the Kokopo Road he drove a motor vehicle dangerously thereby causing the death of one Tonatina.

The following is a summary of the facts taken from the judgment of Frost J.:

On the afternoon of Saturday 14th September, 1968, the appellant, a specialist anaesthetist at the Nonga Base Hospital at Rabaul, was driving a utility truck from Rabaul towards Kokopo, when on a curve to the right, the utility left the bitumen portion of the road, ran onto a gravel strip to the left of the road, then turned back and crossed the bitumen at an angle of about forty-five degrees and struck the deceased, who was sitting on a concrete slab above a culvert about five feet from the right edge of the bitumen, thereby causing his death.

The scene of the fatality was a dip in the bitumen road, about twenty-two feet wide and about three hundred feet from a right hand curve in the road proceeding downhill towards Kokopo. The culvert was situate on the right hand side, adjacent to a gravel road which entered the main road on that side at right angles. From the culvert, going towards Kokopo, the road proceeded uphill and curved to the left. On the left-hand side of the road, there was a gravel strip about nine feet wide, then bushes separating the road from the sea. Along the centre of the road was a yellow double line.

A police officer was called to the scene, arriving at about 5.45 p.m. He saw there the appellant�s upturned Datsun utility, lying partly on the gravel to the right-hand side of the road going towards Kokopo and just past the culvert, with the rear end on the bitumen. There was a tyre mark thirty-six feet long at an angle across the road leading towards the drain but on the left-hand side towards Kokopo and just stopping short of the yellow lines. Because of the appellant�s physical condition, the police officer was not able to interview him until shortly before midday on the following day, at the Nonga Base Hospital near Rabaul. After being cautioned, the appellant said he could not remember a thing. He admitted that he had had some beer at his home at about midday.

The Crown also called a qualified mechanical engineer who gave evidence that the appellant�s vehicle was mechanically sound, the brakes and steering being in good condition. The Crown also called one Aisak who had been with the appellant most of the day and was seated in the front seat of the utility at the time of the accident. He gave evidence that the appellant had drunk some beer at lunch time. His account of the accident was that another vehicle came in the opposite direction which was travelling very fast and aiming at the appellant�s vehicle, so that he thought there was going to be a collision. The appellant tried to avoid it, and this caused the appellant�s vehicle to go off the road to the left.

Two persons who were standing in the vicinity on the beach side of the road gave evidence of the course of the appellant�s car immediately prior to striking the deceased. One Topipiai saw a vehicle coming from Kokopo towards Rabaul. He said it met the appellant�s vehicle at a curve, it was not travelling very fast, and it was on its correct side of the road. The appellant�s vehicle was travelling very fast, so that the vehicle travelling from Kokopo could have played no part in causing the appellant to swerve to the left off the bitumen. However, Uinias who was also standing in the vicinity said that when the two vehicles passed each other, the appellant�s vehicle swerved to avoid the one coming from Kokopo as they were passing each other. Both vehicles were travelling fast, but they were so close that the appellant swung the vehicle to the side of the road.

Two other witnesses who were called gave evidence that immediately prior to the accident the appellant appeared to be drunk, that the appellant�s vehicle was zig-zagging on the roadway, on occasions when the appellant met another vehicle it went close up near the other vehicle, and also of the appellant�s erratic driving immediately prior to the accident.

The appellant gave evidence as to the amount of liquor he had consumed at lunch time and that he had no recollection of the accident.

The defence also called Dr. Wallis who gave evidence that, having regard to injuries which the appellant suffered on his head and two fractures of the thoracic spine, there was nothing unusual about the appellant�s inability to remember the events immediately prior to the accident.

The elements of dangerous driving upon which the Crown relied were that the appellant was driving at an excessive speed for that particular part of the road, combined with inattentive driving and lack of ability to maintain full control of the vehicle, both of which were contributed to by the alcohol consumed by the accused during the day, that either the vehicle got into difficulties as a result or, having got into difficulties, his inattention, speed and the effect of alcohol, prevented the accused from regaining control. Counsel for the defence indicated at the outset of the trial that he proposed to put that alcohol was not a contributing factor, inattentive driving and excessive speed were denied, and it would be contended that the accident was caused by the movements of another vehicle travelling along the road in the opposite direction.

Counsel:

Davoren Q.C. and Lalor, for the appellant.

Wignall, for the respondent.

Cur. adv. vult.

30 May 1969

The following judgments were delivered:

MANN CJ:� This is an appeal against a judgment of Mr. Justice Ollerenshaw sitting in the criminal jurisdiction of the Supreme Court at Rabaul. The judgment was delivered and the sentence was imposed on 10th February, 1969. The conviction was for an offence arising under the provisions of s. 328a (4) of The Criminal Code (Queensland, adopted). The two elements of the offence are dangerous driving and the causing thereby of the death of a person. This section differs in form from similar sections in force in some of the Australian States in that there is no provision requiring the defence to raise or establish that dangerous driving was not the cause of the death. Accordingly, the onus is on the Crown to establish both the dangerous driving and that this was the cause of the death.

In the present case the grounds of appeal cover a very wide range, but I think that it will not be necessary for me to deal with the grounds in detail. There is a question raised in the appeal which is of great importance and which it is clearly the duty of this Court to consider very closely.

By s. 28 (1) the court is required to allow an appeal if it thinks that the verdict should be set aside on the grounds that under all the circumstances of the case it is unsafe or unsatisfactory. The effect of this relatively new kind of jurisdiction is explained in R. v. Cooper[cxvii]¹�. This was a case involving a real difficulty on a question of identification and no attempt was made to criticize the summing-up or to establish that the jury might have been misled by some imperfect direction. It was typically a case in which, under the earlier forms of appellate jurisdiction, an appeal court would be reluctant to interfere with the verdict of a jury. Widgery L.J. who delivered the judgment of the criminal division of the Court of Appeal, explains the way in which an appeal court should approach the problem.

There is a further illustration of the scope of the new jurisdiction in a newspaper cutting which was produced in Court. It is a report of two cases decided by the Court of Appeal in England, where the court felt �uneasiness� about the jury�s verdict in the light of the evidence called[cxviii]²�.

In the present case the learned trial judge has had long experience of the problems that arise in the administration of the law in the Territory, and his understanding of the Tolai people of Rabaul is well known, thus I would be especially reluctant to interfere with any findings of fact reached by the learned judge based upon evidence which was called before him and which came under his close scrutiny. There is, nevertheless, what I see as a major difficulty, and that is that in his judgment the learned judge does not afford any guidance as to how he resolved the conflict of evidence so as to reach the conclusion that the appellant was driving dangerously and thereby killed the man named in the indictment.

This is of particular importance because some questions involved in the onus of proof have received judicial notice, and it appears that the cases involved were not cited to the learned judge at the trial, and the principles involved were not adverted to in the judgment.

This was a case in which the appellant asserted that he suffered from amnesia as a result of injuries received in the accident and was therefore unable to give his version of what happened. This evidence was supported by expert medical evidence describing the claimed result as a classical example of this kind of amnesia. This evidence was tested to some extent in cross examination but the answers elicited clearly established the genuineness of the amnesia, and since that evidence stands uncontradicted one would expect the trial judge to accept and act upon that evidence as a matter of course. It seems most probable that the learned trial judge did in fact accept this evidence, and he appears then to have proceeded to make findings upon the evidence �and the probabilities clearly arising therefrom�. During the appeal we were referred to the case of Broadhurst v. The Queen[cxix]³�and other cases. It is clear from these cases that there are some circumstances which sometimes arise in the course of a case, and which so seriously affect the weight to be given to certain evidence that if the trial judge fails to direct the jury adequately on the point, the Court of Appeal will set aside a conviction.

In the case of Chiu Nang Hong v. The Public Prosecutor[cxx]⁴, the Privy Council held that the trial judge had misdirected himself as to the existence of corroboration in a rape case, and the conviction was therefore quashed. The Privy Council then went on to say that even though it was open to a trial judge sitting alone, to convict in such a case without corroboration if he were convinced of the truth of the complainant�s evidence, the conviction could not stand, for in such a case the judge sitting alone should make it clear that he had the risk in question in his mind but was nevertheless convinced by the evidence even though uncorroborated. This obiter dictum was apparently intended to assist judges who normally sit in the criminal jurisdiction without a jury and who might feel it unnecessary to go through every possible point in the case unless it is directly in issue. In Broadhurst v. The Queen[cxxi]⁵�the Privy Council allowed an appeal from Malta where the original trial was with a jury. There had been much conflict of evidence and the Privy Council concluded that the Chief Justice in his summing-up had thrown the issues before the jury out of a fair balance and, in a number of instances, misdirected the jury as to issues of fact. There was little evidence as to what the accused had done and what was his intention, if any, in relation to his wife who had apparently been killed by falling down the stairs. The accused claimed that he was suffering from amnesia, although this could not be attributed to any physical injury of the kind that was established in Mulas� case. At p. 459 appears the following passage:

�In Russell v. H. M. Advocate[cxxii]⁶, Lord Justice-Clerk said: �Loss of memory in a person otherwise normal and sane plays its full part, if it is sufficiently proved, in increasing the onus on the Crown, and in raising doubts to which it may be the duty of the jury to give effect in a verdict of acquittal after investigation of the whole case.� In referring to this dictum in Reg. v. Podola[cxxiii]⁷�Lord Parker C.J. said that it did not mean that strictly the onus was any greater, but that �a judge should point out to a jury that they must take into consideration carefully the fact that the accused cannot remember the events�.�

It seems to me upon these authorities that questions of corroboration (where corroboration is not strictly essential) and questions such as the possible disadvantage to an accused person genuinely suffering from amnesia, have substantially the same consequences for in either case the tribunal of fact, whether judge or jury, must fully consider the element of doubt which of necessity arises as a matter of judicial experience and must, in assessing the weight to be given to the evidence, exercise an unusual care and scrutiny to make sure that it really is enough to satisfy the court beyond reasonable doubt.

Although the learned trial judge expressed his conclusions as to the onus of proof, it seems to be clear that the authorities which I have mentioned were not cited and that the principles referred to were not taken into account. Had the learned judge adverted to these matters I think that he would have taken particular care to deal with this additional aspect of the weight of evidence in his judgment, and that considering the substantial conflicts of evidence on some important points, he might well have come to some different conclusions of fact.

I do not think it necessary to canvass every issue of fact in detail but it does appear to me that there was no evidence to support the conclusion that the appellant, in driving the vehicle, was inattentive to the road. The only evidence which the Crown could contend for as supporting this finding was evidence to the effect that the vehicle was �zig-zagging� on the road and had come so close to other vehicles on the road as to cause one of the witnesses some apprehension.

The learned trial judge rejected the contention that the appellant in this case swerved sharply to the left in order to avoid another vehicle, although the Crown witness, Uinias-Tonape, expressly stated that this is what happened and it appears, at least, that the two vehicles did pass each other safely at about the point of time at which the appellant�s vehicle swerved. On the question of speed there is much conflict of evidence and the Crown witness, Aisak, for what his evidence was worth, supported the case of the appellant both as to the likelihood of the two vehicles colliding if the appellant had not taken emergency action by swinging to the left, and also in stating that the appellant�s vehicle was not travelling fast, although the other vehicle was and appeared to be coming straight at the appellant�s vehicle. Some explanation and possible support for Aisak�s evidence on these points might be gained from Ex. E which is a photograph of the roadway in question showing a sweeping curve in a position between the point where the vehicles must have passed each other and the point where the appellant�s vehicle finally came to rest.

If an element of doubt on the question of speed, or emergency action taken by the accused, had entered the learned trial judge�s mind, I feel that he might well have concluded that the accused, in swerving violently to the left, took the appropriate action to avoid an apprehended collision from his right, and in fact steered his vehicle into an area which was about the only safe place. This might have led to the further conclusion that the suddenness of the manoeuvre, and possible unskilful handling, caused the car to get into an uncontrollable skid at this point and to re-cross the road to the point where it turned over and killed the deceased pedestrian without the volition of the appellant; thus his intended manoeuvre might have been thought to be safe and proper, whilst the subsequent movements of the vehicle were completely beyond the control of the appellant. I am far from saying that such findings ought to have been made upon the evidence, but the point here involved is that if the learned trial judge had had his attention drawn to the cases to which I have referred, I feel that he would have given more specific attention to those unsatisfactory passages of evidence, which must have given rise to at least a degree of doubt, and the principle that on every point involved the onus is on the Crown.

On the appeal further evidence was admitted as to character. On the trial the character of the accused was not attacked and therefore he was entitled to be treated as of good character. At the end of the trial this situation was confirmed by the antecedent report. However, further evidence of character was admitted on the ground that it was not in fact available at the trial and indeed could not have been obtained without very substantial expense.

Evidence was given by Dr. J. T. Gunther, at present Vice-Chancellor of the University of Papua and New Guinea, who over a substantial period of time whilst occupying the offices of Director of Public Health and later Assistant Administrator, had a good deal to do with the appellant and especially selected him to undertake his course of medical training which he completed with much distinction. Evidence of exceptionally good character was also given by Dr. Reay-Young, a senior specialist in surgery and radiology, and by the Rev. Ian Fardon, each of whom have known the appellant well. My finding on that evidence is that the appellant is a man of exceptionally good character and responsible conduct without in any way making any concession on the score that he is an indigene.

This evidence is relevant on questions of behaviour and guilt, especially on the question as to whether, in the absence of clear, direct and specific evidence of substantial weight, any inference adverse to the accused ought to be drawn. I think that if similar evidence had been available to the learned trial judge he might well have hesitated and refrained from drawing inferences upon which the conviction depends.

Thus looking at the case as a whole and giving full weight to the consideration that the trial judge was undoubtedly in the best position to assess the credibility of the witnesses, I am left with a feeling of uneasiness as to the result of the case, and with much more than a mere impression that if the material presented to the Court upon appeal had been presented to the learned trial judge, the result would have been different. In these circumstances I think it my duty under the provisions of s. 28 (1) of the recent Ordinance to which I have referred, to conclude that the judgment appealed from is unsatisfactory and ought not to stand. Having regard to the fact that the appellant has already served a substantial time in imprisonment, and the unlikelihood of a conviction should a new trial be had, I think the correct order under sub-ss. (1) and (3) is that the verdict should be set aside on the ground that under all the circumstances of the case it is unsatisfactory and that the appeal be allowed and the conviction quashed, and that this Court should direct a verdict of acquittal to be entered.

FROST J:� This is an appeal against the conviction of the appellant on 10th February, 1969 by Ollerenshaw J. at the Rabaul sittings of the Supreme Court on a charge that on 14th September, 1968 on the Kokopo Road he drove a motor vehicle dangerously, thereby causing the death of one Tonatina.

[His Honour stated the facts in full and continued:]

In his reasons for judgment, the learned trial judge stated his reasons for overruling the appellant�s counsel�s objection to the evidence being led as to the accused drinking beer about midday, and then proceeded:

�I now come to my findings upon the evidence and the probabilities clearly arising therefrom.

�I do not think that the vehicle coming from the opposite direction created any danger of a collision between the two vehicles, that there was a critical situation that called for sudden evasive action by the accused, mistaken or otherwise: see R. v. Coventry[cxxiv]⁸; or that the other vehicle was in any way responsible for the course the accused man�s vehicle took to the gravel whence it went, wholly or partly out of control, to the fatal impact.

�I am completely satisfied that the accused man was inattentive to the road when he came to the bend and was driving at an excessive speed and so did not take the bend and drove on to the gravel and thereby caused his vehicle to take its erratic course to the culvert. I am completely satisfied that this dangerous driving was largely contributed to, if not caused, by the quantity of alcohol he had consumed, which reduced his capacity to drive to a considerable extent and rendered him at the relevant time incapable of driving safely.

�I would add that it is just possible that the accused imagined that the other car created some danger, but this I consider would have been unreasonable in the circumstances and I consider, too, would have been due to his condition to which I have referred. I am satisfied beyond all reasonable doubt that he was driving dangerously and thereby killed the man named in the indictment.�

His Honour concluded his judgment by referring to the submission by counsel for the appellant that at the worst the appellant�s driving was negligent and that this was not sufficient for a charge of dangerous driving, and held that the proper test was the objective test as laid down in R. v. Evans[cxxv]⁹�. His Honour�s judgment on the proper construction of s. 328a of The Criminal Code was not challenged.

It will be noted that his Honour made no reference to the evidence called by the defence, or to the appellant�s condition of amnesia.

I come now to the grounds of appeal.

The first ground of appeal was that the learned trial judge failed in his consideration of the evidence to direct himself as to the effect of the accused�s failure to remember the events in issue. Mr. Davoren relied on two decisions of the Privy Council, which were not drawn to the attention of his Honour. The first was Broadhurst v. The Queen[cxxvi]¹⁰�which was an appeal from the Criminal Court of Malta, from a judgment of the Court sitting with a jury of nine, whereby the appellant was found guilty of causing wilful grievous bodily harm to his wife, from which death ensued. The brief facts were that the accused had gone to a dance, the wife went home by herself, the appellant had had a good deal to drink, he stayed until the dance finished at one a.m. and then started to walk home. He remembered an incident on the way back and then he said he remembered nothing more until he saw his wife lying on the stairway in a pool of blood. The wife�s death was caused by a fracture of the skull when she fell or was pushed down the stone stairway leading up to the flat on the first floor of the building where they lived. The crucial evidence was supplied by the McKinnells who lived in the adjoining flat. About two a.m., Mrs. McKinnell was awakened by the noise of running about on the roof and banging on the stairs. She heard the deceased woman say: �Stop it, Malcolm, or you will kill me.� The voice came from the stairs. It was a bit loud, but not a scream. Then after a short interval, she heard the appellant say, his voice coming from outside the door: �That�s the end of that.� Mr. McKinnell was also woken up, but did not hear the voices. There was also evidence that, shortly after, the appellant came to their flat and said that he had thrown his wife down the stairs. One of the grounds of appeal was that the Chief Justice had misdirected the jury when he had dealt with the appellant�s credibility, and in particular to the facts relating to the loss of memory. Their Lordships said that the appellant�s loss of memory did not relieve the prosecution of any part of their burden.

�They are not entitled to have the prisoner�s assistance in proving their case; even if his memory had been perfect, he is under no obligation to give evidence. On the other hand, loss of memory is no defence: R. v. Podola[cxxvii]¹¹.�[cxxviii]¹²

In dealing with this ground, their Lordships considered that the learned trial judge did not in fact leave fairly and accurately to the jury the facts relating to loss of memory. He had told the jury, quite properly, that a statement by the accused that he does not remember is easy to advance and difficult to refute and that it must be examined with scrupulous care. It was then that their Lordships propounded the law as follows[cxxix]¹³:

�In Russell v. H. M. Advocate[cxxx]¹⁴, the Lord Justice-Clerk said: �Loss of memory in a person otherwise normal and sane plays its full part, if it is sufficiently proved, in increasing the onus on the Crown, and in raising doubts to which it may be the duty of the jury to give effect in a verdict of acquittal after investigation of the whole case.� In referring to this dictum in Reg. v. Podola[cxxxi]¹⁵�Lord Parker C.J. said that it did not mean that strictly the onus was any greater, but that �a judge should point out to a jury that they must take into consideration carefully the fact that the accused cannot remember the events�. Just as a faked loss of memory may make it easier for a jury to draw the inference of guilt, so a genuine loss of memory may make it more difficult, for a jury must then reflect that by the force of circumstances they have heard only one side of the case. Their Lordships consider that the Chief Justice should have pointed this out to the jury and that he did not hold the balance even in this respect.�

The other decision of the Privy Council was the case of Chiu Nang Hong v. The Public Prosecutor[cxxxii]¹⁶, which was an appeal from the judgment of the Court of Appeal of the Federation of Malaya at Kuala Lumpur dismissing the appellant�s appeal from his conviction in the High Court at Kuala Lumpur, by a judge sitting without a jury, of a charge of rape. In his considered reasons for judgment, the learned trial judge, after setting out the conflicting stories, said he believed the complainant�s story that the appellant had had intercourse with her without her consent. Her evidence had the ring of truth, whereas the accused�s story �that she had freely consented sounded like a broken cymbal�.

Their Lordships� judgment then proceeded[cxxxiii]¹⁷:

�The crucial question was whether the complainant consented, and the risk of convicting on her own evidence alone was clear. Some corroborative evidence was most desirable, that is to say, some evidence coming from a source independent of her, which tended to show that she did not consent of her own free will. She did not struggle or shout, she did not try to leave the room, her clothing remained intact, and her body unmarked. She made no complaint until after the lapse of nearly forty hours. Not unnaturally in his closing speech to the judge, counsel for the appellant dwelt on the desirability in these circumstances of corroboration, and the judge�s note of the evidence shows that counsel did so repeatedly. In these circumstances the judge would clearly have the matter well in mind: and his judgment shows that he examined all the surrounding circumstances with great care. Having done so, he announces his conclusion in the following terms: �I could not but come to the conclusion that �she� [the complainant] was speaking the truth, and that in all material circumstances her evidence was corroborated by the facts.�

�Their Lordships are asked not to give this passage the interpretation it would ordinarily bear: and to hold that the judge was not using �corroboration� in the sense above defined, but in a sense which indicated no more than this, namely, that the circumstances were consistent with the complainant�s story. Their Lordships cannot do so. This was not an extempore judgment, but a well-considered judgment given in writing, albeit some six weeks after the trial. The conclusion comes after a careful and meticulous examination of the circumstances, in which the desirability of corroboration, in the legal sense of that term, must have been in the mind of this very experienced judge. He nowhere refers to the absence of corroboration: and when at the close of his judgment he announces that the circumstances afford corroboration, their Lordships cannot presume, on virtually no grounds, that he intended to say simply that the circumstances afforded consistency only. The circumstances were, indeed, consistent also with the appellant�s story.

�Their Lordships do not need to emphasise that the circumstances did not afford corroboration of the complainant�s allegation of no consent. That was the view of the Court of Appeal: their Lordships share it: and the Public Prosecutor admits it. The case is one therefore where the appellant has been convicted on the basis that the complainant�s allegation was corroborated when it was not. It is accordingly one of those cases where the protection of the rule which guides courts in these matters has, in effect, been withheld from the appellant. There is thus a miscarriage of justice bringing the case within the category of cases where the board will intervene.

�Their Lordships would add that even had this been a case where the judge had in mind the risk of convicting without corroboration, but nevertheless decided to do so because he was convinced of the truth of the complainant�s evidence, nevertheless they do not think that the conviction could have been left to stand. For in such a case a judge, sitting alone, should, in their Lordships� view, make it clear that he has the risk in question in his mind, but nevertheless is convinced by the evidence, even though uncorroborated, that the case against the accused is established beyond any reasonable doubt. No particular form of words is necessary for this purpose: what is necessary is that the judge�s mind upon the matter should be clearly revealed.

�Their Lordships recognize the careful nature of the judgment in the present case: but on this particular point it is ambiguous as the differing interpretations of the Court of Appeal and of their Lordships show; and there should be no ambiguity upon such a matter where the liberty of the subject is involved.�

Mr. Davoren relies on the law laid down in these cases in this way. He submits that his Honour should have had regard to the appellant�s loss of memory. It was conceded by Mr. Wignall for the Crown that, at the close of the evidence for the accused, whether the amnesia was genuine or faked was not an issue for the judge, for the evidence was so much one way. He could only have come to the conclusion that the loss of memory was genuine. Mr. Davoren then submitted that his Honour should have borne in mind that if the loss of memory was genuine, just as he was bound to point out, if he were sitting with a jury, that the jury must take into consideration carefully the fact that the accused could not remember the events, and so make it more difficult for them to draw the inference of guilt, so also he should himself have borne the same consideration in mind. Mr. Davoren went on to submit that it did not appear from the reasons for judgment that these considerations had been present in his mind and even if they had been present in his mind, he should have made it clear in his reasons for judgment that they had been so present, but that he nevertheless had decided that the case was established beyond reasonable doubt.

Mr. Wignall sought to distinguish both cases. He submitted that the issue in Broadhurst�s case[cxxxiv]¹⁸�was concerned with the intent of the accused, that there was no eye-witness, and so the appellant�s loss of memory meant that his side of the case was not heard. In the present case, Mr. Wignall submitted, there were on the contrary eye-witnesses of the accident, who had been called by the Crown. He submitted that the passage from the judgment in Chiu Nang Hong v. The Public Prosecutor[cxxxv]¹⁹�relied on by Mr. Davoren was obiter dictum, that the rule should be confined to a failure by the trial judge sitting alone to advert properly to a rule of law (which, in effect, the practice to direct, in rape cases, that it is dangerous to convict in the absence of corroboration, amounts to), that to extend it to the direction required when an accused has lost his memory would open the gates and enable accused persons to have verdicts of guilty set aside whenever a judge omits a reference in his reasons to a point which was not a live issue in the case, as Mr. Wignall submitted the accused�s loss of memory was.

Now I must say that I feel that the learned trial judge, if I may say so with respect, a most experienced judge, did have in mind that the accused�s loss of memory should be taken carefully into account. In a case such as this, where the accused�s driving was the basis of the charge, there was evidence of another vehicle on the road and one of the issues was the effect on the accused�s driving of the movements of that vehicle, and the effect of any application of the brakes by the appellant and so on, in my opinion, it was a most important consideration. It is true that the witnesses who were called were there to be cross-examined, but as Mr. Davoren submitted, the appellant was unable properly to instruct his counsel for the purposes of this cross examination and Broadhurst�s case does not seem to be distinguishable. Further, the accused�s loss of memory, if it does not increase the onus of proof, as Lord Parker said, is a matter which is to be considered in relation to the onus of proof, which is fundamental in a criminal trial. The rule propounded in Chiu Nang Hong�s case, in my opinion, is a sound one. Its basis seems to me to be that justice must be seen to be done. The line may be difficult to draw, but I have reached the conclusion that the present case falls on the same side of the line as Chiu Nang Hong v. The Public Prosecutor[cxxxvi]²⁰�and that, in his reasons for decision, the learned trial judge should have made it clear that he had taken into account that by reason of the appellant�s loss of memory, he had not heard the appellant�s side of the case, but was nevertheless satisfied beyond reasonable doubt of his guilt. Accordingly, in my opinion, this ground of appeal succeeds and the conviction cannot stand.

I propose to deal only with certain other grounds of appeal which all relate to the onus of proof and in my judgment are to be determined by similar considerations. The grounds are:

N2>�2.�� The trial judge misdirected himself as to the onus of proof in a criminal case in basing his findings on probabilities arising from the evidence.

N2>3.�� The trial judge did not exclude beyond reasonable doubt the inference from evidence that there existed a sudden emergency caused by a second vehicle and that it was this sudden emergency which caused the fatal impact.

N2>5.�� The trial judge misdirected himself as to the onus of proof in relation to a defence of mistaken fact concerning the belief of the accused in the danger created by the second car.�

Mr. Davoren submitted that from his Honour�s reasons for judgment, it did not appear that the criminal onus of proof was applied. In view of the conflicting evidence as to the other vehicle given by Aisak and Uinias on the one side and Topipiai on the other, this was peculiarly a case in which the application of the proper onus was particularly important. Mr. Davoren submitted that the onus was on the Crown to negative beyond reasonable doubt that there was a critical situation that called for sudden evasive action by the appellant. He relied on Reg. v. Spurge[cxxxvii]²¹, where the defence to a charge of dangerous driving was that the appellant had lost control of the vehicle because of a mechanical defect. The appeal was heard by five judges. The passage of the judgment relied on by Mr. Davoren is as follows[cxxxviii]²²:

�It has been argued by counsel for the Crown that even if a mechanical defect can operate as a defence, yet the onus of establishing this defence is upon the accused. It is of course conceded by the Crown that this onus is discharged if the defence is made out on a balance of probabilities. In the opinion of this Court, the contention made on behalf of the Crown is unsound, for in cases of dangerous driving the onus never shifts to the defence. . . . Once, however, it [such a defence] has been put forward it must be considered with the rest of the evidence in the case. If the accused�s explanation leaves a real doubt in the mind of the jury, then the accused is entitled to be acquitted. If the jury rejects the accused�s explanation, the jury should convict.�

This proposition was accepted by McTiernan J. in McBride v. The Queen[cxxxix]²³. The same onus must apply where the defence is that the accused, as in this case, relies on a critical situation which caused him to take sudden action to avoid another vehicle: R. v. Coventry[cxl]²⁴. If such a defence were not excluded by the Crown beyond reasonable doubt, the accused�s driving does not constitute driving dangerously: R. v. Coventry[cxli]²⁵; Simpson v. Peat[cxlii]²⁶, cited in R. v. Spurge[cxliii]²⁷.

In applying his mind to the facts of this case, his Honour, the learned trial judge, must have rejected the evidence of Aisak and Uinias and accepted the evidence of Topipiai. On this part of the case his Honour had the advantage of seeing the witnesses, and the benefit of his long experience and knowledge of the Tolai people. His Honour was in a much better position to decide which witness to accept than this Court. I am confident that his Honour was aware of the proper onus of proof which required the Crown to negative beyond reasonable doubt that a critical situation had arisen by reason of the course taken by the other vehicle which caused the appellant to swerve and so lose control. But if one turns to his Honour�s reasons on this particular issue, his Honour does not refer to the degree of proof required whether it is beyond reasonable doubt or on the balance of probability, or on which party the onus lies. In my opinion, the ambiguity on this issue is not resolved by the subsequent statement made by his Honour: �I am satisfied beyond all reasonable doubt that he was driving dangerously and thereby killed the man named in the indictment.� I have reached the same conclusion upon the passage in the judgment in which the learned trial judge refers to the appellant�s defence that he honestly and reasonably believed that the other car did create some danger. The onus of excluding this defence was also upon the Crown and it was a criminal onus: Brimblecombe v. Duncan; Ex parte Duncan[cxliv]²⁸. In my opinion, the appellant must succeed also on the issues raised in these three grounds of appeal, upon the authority of Chiu Nang Hong v. The Public Prosecutor[cxlv]²⁹.

As the grounds of appeal which I have upheld relate to the onus of proof, it is unnecessary for me to consider the other grounds concerning the sufficiency and weight of evidence. However, as the issue was fully argued before us, I wish to advert to the issue whether the evidence of Crown witnesses as to their opinion that the appellant was under the influence of alcohol was properly admitted. We were referred to a number of authorities�R. v. Spooner[cxlvi]³⁰, R. v. McKimmie[cxlvii]³¹, R. v. Kelly[cxlviii]³², R. v. Davies[cxlix]³³. There is also a Canadian case of R. v. German[cl]³⁴�and an Irish case Attorney-General v. Kenny[cli]³⁵, both of which are referred to in a learned note in 77 Law Quarterly Review 166. In my judgment, the law is correctly stated in R. v. Davies[clii]³⁶�and by Sholl J. in R. v. Spooner[cliii]³⁷, in which he held that no expert qualification is required for a witness to give evidence as to the effect of alcohol upon a person. I am also impressed by the view expressed by the learned author of the note I have referred to that Davitt P., who presided in R. v. German[cliv]³⁸��made a strong point when he showed that the exclusion of such (non-expert) evidence might hamper not only the prosecution but also the defence. An accused person might be unable to get a doctor, but might have companions prepared to say that in their opinion he was capable of properly controlling a vehicle� (77 Law Quarterly Review, at pp. 166-167).

The other matter to which I wish to refer was the fresh evidence which we admitted. Three eminent witnesses who were not in Rabaul at the time of the trial gave evidence of the accused�s good character, no such evidence having been called at the trial as evidence in answer to the charge. I now consider that we took a view too favourable to the appellant. It is a fact of life that men of the highest character and reputation and moderation of habit do unaccountably depart on occasion from their high standards. If this were the only point in the appeal, in my opinion it could not have left a reasonable doubt in the mind of the learned judge with regard to the guilt of the appellant, if that evidence had been given together with the evidence at the trial: R. v. Parks[clv]³⁹.

I consider it unnecessary in this case to refer to the authorities cited by Mr. Davoren to show the extent of the discretion of this Court to set aside a verdict on the ground that under all the circumstances the case was unsafe and unsatisfactory. He referred to R. v. Cooper[clvi]⁴⁰, Reg. v. Pett[clvii]⁴¹�and Reg. v. Bird[clviii]⁴². For the reasons I have referred to, in my opinion the verdict was unsatisfactory. The question that now arises is Mr. Wignall�s submission that this Court should dismiss the appeal on the ground that no miscarriage of justice has actually occurred. But the grounds of appeal which I have upheld amount to this, that it cannot be said with sufficient certainty that the relevant law was properly applied, so that the appellant may thereby have lost a chance which was fairly open to him of being acquitted, and this is a miscarriage of justice within the meaning of the concept as explained by Fullagar J. in Mraz v. The Queen[clix]⁴³.

In my opinion also this case cannot be put so high that on all the facts I should be satisfied that a tribunal of fact properly directing itself could not have acquitted the accused. Although the Crown relied strongly on the movement of the utility on the roadway, and there was evidence of drink, a tribunal of fact might have been left with a real doubt that the other vehicle caused a sudden emergency which caused the appellant�s vehicle to swerve and get out of control, and that, on the evidence, the appellant, although driving fast, was driving dangerously.

I have accordingly reached the conclusion that the verdict must be set aside. This Court has power to grant a new trial (see Supreme Court (Full Court) Ordinance, s. 33 (1)). I consider that we should not so order. The appellant has already served three and one-half months in the corrective institution and for the reasons I have referred to it cannot be said that at a further trial the appellant not only could be, but ought to be, convicted: R. v. Bailey[clx]⁴⁴.

I agree that the appeal should be allowed, the conviction quashed, and a verdict of acquittal should be entered.

CLARKSON J:� The evidence given at the trial is summarized in the reasons of Frost J. and I turn immediately to the grounds of appeal. Two matters in particular were pressed and I deal with them first.

The first was that the trial judge failed to direct himself properly as to the effect of the appellant�s post-traumatic amnesia. The second was that the trial judge should have had a reasonable doubt whether a sudden emergency had not been created by the driver of another vehicle.

As to the first of these contentions, the argument revealed that the real complaint was that the trial judge did not record in his reasons how he had directed himself as to the effect of the appellant�s amnesia.

The evidence established that the appellant had no recollection of events for a period which commenced prior to the accident and ended when the appellant was in hospital after the accident. The appellant�s evidence of this period of amnesia was supported by medical evidence and to some extent by the police officer called by the Crown. There was no attempt by the Crown to suggest the amnesia was feigned and it must have been apparent to all, at the end of the evidence, that the evidence on this issue was all one way. There is no record of counsel�s submissions and we do not know whether the appellant�s amnesia was commented on. There is no reference to it in the trial judge�s reasons.

The appellant�s argument is based on dicta in two opinions of the Judicial Committee. The first is in Broadhurst v. The Queen[clxi]⁴⁵. In that case, the Judicial Committee was reviewing the summing up of the Chief Justice of Malta to a jury hearing a charge of wilful homicide. The passage from the opinion is:

�Just as a faked loss of memory may make it easier for a jury to draw the inference of guilt, so a genuine loss of memory may make it more difficult, for a jury must then reflect that by the force of circumstances they have heard only one side of the case. Their Lordships consider that the learned Chief Justice should have pointed this out to the jury and that he did not hold the balance even in this respect.�

The next link in the argument is Chiu Nang Hong v. The Public Prosecutor[clxii]⁴⁶. This was a case of a conviction for rape after a trial judge alone in Malaya, the main issue being consent. The only direct evidence of what happened consisted of the conflicting accounts of the prosecutrix and the accused. The trial judge in convicting accepted the prosecutrix�s story and said �that in all material circumstances her evidence was corroborated by the facts�. In fact, the evidence disclosed no corroboration of that evidence and, as the Judicial Committee pointed out, the accused had been convicted on the basis that the complainant�s allegation was corroborated when it was not, and that a miscarriage of justice had therefore occurred.

The Board then went on to say[clxiii]⁴⁷:

Based on these passages the argument in the present case is put this way: Broadhurst�s case[clxiv]⁴⁸�shows that the amnesia of the appellant should be put to the jury in the way suggested in that case; Chiu�s case shows that a matter which should be put to the jury (in that case corroboration) must where the trial is before a judge alone be recorded in his reasons, and the mere fact that the appellant�s amnesia is not referred to in the reasons of the trial judge here is sufficient to require the conviction to be set aside.

I find myself unable to accept this argument and I summarize briefly my reasons for thinking it wrong.

In Broadhurst�s case there were a number of criticisms of the summing up. One such criticism was that the trial judge did not leave fairly and accurately to the jury the facts relating to the alleged loss of memory. The contest there was whether the loss of memory was feigned or genuine and the trial judge�s remarks were calculated to show it was feigned. What was said by the Judicial Committee was that the trial judge did not hold the balance even in this respect but tilted it sharply and without justification the wrong way. The point was that the trial judge dealt unfairly with the facts in summing up.

No such situation exists here, where by the end of the trial it seemed clearly established that the amnesia was genuine and the trial judge has said nothing to indicate that he thought otherwise.

In Chiu�s case[clxv]⁴⁹�it is not difficult to see why the absence of corroboration was of great importance. The situation was as follows[clxvi]⁵⁰:

But again, as in Broadhurst�s case[clxvii]⁵¹, an error by the judge is disclosed in the transcript. He said the woman�s story was corroborated, when it was not. The dictum quoted above, which the Judicial Committee then added, was to meet the argument that the trial judge was well aware that he was convicting without corroboration of the prosecutrix�s allegation and did not use �corroboration� in its technical sense, but had said nothing more than that the circumstances were consistent with the complainant�s story. In such a case, the Board said, the trial judge should make it clear that he is doing that.

I do not doubt that in circumstances such as Chiu�s case a trial judge, if convicting, should state clearly whether or not he finds the prosecutrix�s story corroborated, especially if having said it was corroborated he means that it was not, but I do not accept the passage quoted as establishing a rule of law that when a judge sits alone at a trial he is bound to record in his reasons every matter of fact which, if he were directing a jury, he might mention to them.

Nor do I accept that that passage coupled with the extract from Broadhurst�s case, to which I have referred, requires as a pre-requisite to conviction that a judge sitting alone must record in his reasons the fact that he has adverted to the effect of the accused�s loss of memory. In my view the point is one of the proper consideration of fact not a question of law.

I read Broadhurst v. The Queen[clxviii]⁵²�as pointing out that a genuine loss of memory may make it more difficult to convict, for the accused is unable to give his account of the relevant events and while it may be that that account, if available, would not assist the accused it must be borne in mind that it might assist him. But in each case this proposition must be considered in the light of the particular facts. It is not that a genuine loss of memory does make it more difficult to infer guilt but that it may make it more difficult.

Here, many of the facts were established by eye-witnesses, none of whom was shown to be antagonistic to the accused. The vehicle was in good condition and being driven on a bitumen road. The manner in which the vehicle was driven towards the scene of the accident was such as to cause the witness Pelis to remonstrate with the accused and to attempt to leave the vehicle at Tony�s store and subsequently to pull the ignition key out so that the vehicle stopped and he was able to leave the vehicle. It was such that Erimas, having joined the vehicle at Rabarua, left it at Vunagam because he was frightened by the zig-zagging of the vehicle on the road. These were two independent witnesses who were not present together in the vehicle. In considering this kind of evidence one must bear in mind that the accused might have been deprived of giving some explanation which would raise a reasonable doubt. In this case, where the Crown did not have to establish any particular intention on the part of the accused, where the test of liability is, as it has been called, an objective one, and where there are a number of eye-witnesses of the relevant events, the accused�s loss of memory would not carry with it the caution which it would in a case such as Broadhurst v. The Queen where one of the principal issues was the accused�s intention and no one saw the injuries inflicted.

The argument pressed for the appellant is that there is evidence which indicates that a dangerous situation arose as the two vehicles approached each other and the appellant, one of the drivers, has been deprived of the opportunity of giving his version of what occurred in the very brief period immediately before the accident. This is true but the trial judge may well have concluded that the disadvantage was of little significance. The effect of the appellant�s inability to give his version of what occurred will vary from point to point in the sequence of events, depending on the strength of the Crown�s evidence.

I have already referred to the evidence of Pelis and Erimas as to the manner in which the vehicle was driven towards the scene of the accident. Their accounts were not challenged in cross examination and no explanation was offered or suggested by the defence. I think it was open to the trial judge to conclude that, notwithstanding the appellant�s inability to give his version of the manner in which the vehicle was driven approaching the scene of the accident, the evidence of erratic driving was so compelling as to make it only remotely possible that any exculpatory explanation of it could have been given. Having reached that conclusion it was clearly open to the trial judge to infer from the evidence that the appellant was so affected by alcohol as to be incapable of driving properly and that with his perception and coordination thus impaired any explanation the appellant could have offered of the subsequent events which occurred in the few seconds before the collision, and which would have required rapid and accurate assessments of speeds, directions of travel and distances, would have been of doubtful value.

Further, in a trial by judge alone the same considerations cannot apply as in a jury trial. I know of no authority which requires a judge sitting alone to make a public summing up containing all the matter on which he might direct a jury although he gives and is properly expected to give a summary of his reasons for his decision. In addition, some regard is given to the judge�s experience and training in fact finding. This is illustrated by the decision of the High Court in Cooper v. The Queen[clxix]⁵³�on appeal from this Court. In that case the accused was convicted on a charge of sedition by a judge sitting without a jury and an amount of inadmissible evidence was admitted at the trial. The High Court said[clxx]⁵⁴:

�So far the case appears to be perfectly clear. And, if the trial had been had with a jury, and all the inadmissible evidence had been heard by them, the conviction must have been quashed. It must, we think, have been quashed, even if a direction had been given to them to disregard it, because its prejudicial effect must have been strong, and it would have been impossible to be sure that their minds had not been decisively affected by it. In fact, however, the trial of this case was had before a judge sitting without a jury, and his Honour�s reasons for the conclusion which he reached have been stated and recorded. If it appears from these that his Honour determined the question which he had to decide, and determined it without any reliance on the considerable mass of inadmissible evidence which had been put before him, it may be that it would not be proper for a court of appeal to quash the conviction. This does not mean that a judge sitting without a jury may always properly hear a mass of inadmissible evidence and abstain from ruling upon it until it has all been given. On the contrary, the correct course in the present case was obviously, in our opinion, to reject the objectionable evidence the moment its nature became apparent and refuse to hear any more of it. But if his Honour decided what he had to decide, and the commission of the offence charged was clearly proved by admissible evidence, it may be right to allow the conviction to stand.�

The criticism here is that the trial judge has not in his reasons expressly referred to a circumstance which would require especial care to be exercised when drawing some inferences against the accused. There is nothing to show that the trial judge did not take this circumstance into account and I do not think that his failure to mention the matter is any more fatal to the verdict than would be the fact that he does not expressly state either that he has preferred the evidence of some witnesses to others or that he has disregarded some inadmissible evidence.

Bearing these matters in mind I cannot conclude that because the trial judge in this case made no reference in his reasons to the appellant�s loss of memory the conviction must be set aside.

Further, the evidence of a genuine loss of memory must have been in the minds of everyone involved in the trial. If the trial judge failed to advert to the possibility that the accused may have been deprived of an opportunity to give evidence helpful to his defence�and this I doubt�I do not think on the facts of this particular case that such omission affected the result of the trial adversely to the accused.

The second of the two grounds previously mentioned refers to the presence of another vehicle on the road.

In fact the trial judge concluded that the other vehicle was in no way responsible for the course which the appellant�s vehicle took. He found the appellant�s vehicle was driven into the bend by a driver whose capacity to drive was considerably reduced by the consumption of alcohol and that it was driven at a speed which did not enable the driver in his condition to negotiate the bend properly and that the vehicle thereby got out of control and killed the deceased. The trial judge no doubt had in mind that all the evidence there was on the point placed the other vehicle at all relevant times on its correct side of the road, that the appellant had one-half of a twenty-two foot bitumen roadway and an additional nine feet of flat gravel in which to manoeuvre, and that when two vehicles are approaching each other, one being on a curve, there is a point of time at which one vehicle is pointing at the other.

On the evidence I think it was also open to the trial judge to find that because of the driver�s impaired ability to drive and the speed at which he was driving he was unable to execute safely the simple manoeuvre of keeping clear of an approaching vehicle on its correct side on a curve in the road.

Also if the recorded evidence of each witness is given the same weight it was open to the trial judge to entertain a doubt whether the substantial cause of the deceased�s death was the dangerous driving of the appellant because it might be said that the death resulted from a reasonable attempt by the appellant to avoid a dangerous situation created by the other vehicle.

In my view the trial judge was entitled on the evidence to find as he did. That he did so with confidence reflects nothing more than the advantage he had over those who now read the recorded evidence, of seeing, hearing and assessing the capacity and credibility of each of the witnesses.

I do not propose in the circumstances to deal in detail with each of the other grounds of appeal which were raised. I am satisfied that the evidence of the appellant�s appearance and actions as described by the witnesses and the conclusions they drew therefrom were admissible in evidence and I do not agree that the trial judge wrongly applied any principle as to the burden of proof or the standard of proof. The trial judge was in my view amply justified in concluding that the appellant�s capacity to drive a motor vehicle had been diminished by intoxication to the extent that he was incapable of controlling the vehicle properly. This of course was not sufficient to establish the case against the appellant and the trial judge did not suggest that it was, but it is one of the factors which was rightly taken into account in determining that the manner in which and the speed at which the vehicle was driven by the appellant constituted dangerous driving and that the vehicle was being so driven at the time when the deceased was hit.

An argument that the trial judge did not apply the proper standard of proof was erected on the reference in his reasons to the evidence �and the probabilities clearly arising therefrom� and the words which occur immediately thereafter, namely �I do not think�. I can find no substance in this contention. I think it is clear that �probabilities� in its context means nothing more than inferences. I note the word was used in the same context by the High Court in Basto v. The Queen[clxxi]⁵⁵. But in any event the reasons must be read as one document and the trial judge subsequently stated that he was satisfied beyond all reasonable doubt that the accused was driving dangerously and thereby killed the deceased.

In view of the conclusion reached by the majority of the Court it is unnecessary for me to consider the grounds of appeal relating to sentence.

I agree with the remarks of Frost J. relating to the evidence of character admitted on the appeal and I also agree that on the view of the case taken by the other members of the Court the order they propose is a proper one. However, in my view the appeal against conviction should have been dismissed.

Appeal allowed and conviction quashed.

Verdict of acquittal entered.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.

Solicitor for the respondent: P. J. Clay, Acting Crown Solicitor.

[cxvii][1969] 1 Q.B. 267.

[cxviii]Reg. v. Pett; Reg. v. Bird (unreported). The Times Newspaper, 11th May, 1968.

[cxix] [1964] A.C. 441, at pp. 458-459.

[cxx][1964] 1 W.L.R. 1279.

[cxxi] [1964] A.C. 441, at p. 442.

[cxxii] 1946 S.C. (J.) 37, at p. 48.

[cxxiii][1960] 1 Q.B. 325.

[cxxiv][1938] HCA 31; (1938) 59 C.L.R. 633, at p. 638.