PARTIES:	SANBY
V
THE QUEEN

TITLE OF COURT:	In the Court of Criminal Appeal of the
Northern Territory of Australia

JURISDICTION:		Court of Criminal Appeal of the Northern Territory of Australia exercising Territory jurisdiction

FILE W:	CA 8 of 1992
DELIVERED:	Delivered at Darwin 19 October 1993 HEARING DATES:	Heard at Darwin 24,25,26 and 27 May 1993 JUDGMENT OF:	Martin CJ, Angel and Mildren JJ CATCHWORDS:
APPEAL - General - Cross-appeal against conviction and sentence - Jury verdict considered unsafe and unsatisfactory

CRIMINAL LAW AND PROCEDURE - General principles - Unsafe and unsatisfactory verdict - Approach required by the court - Function of appellate court as opposed to a jury
Volz v The Queen (1990) 100 FLR 393, applied.
Chamberlain v The Queen [N 2] (1984) 153 CLR 521, followed.
Chidiac v The Queen (1990-91) 171 CLR 432, followed.
Morris v The Queen (1987) 163 CLR 454, followed.
Rostron v The Queen (1991) 1 NTLR 191, followed.
Shepherd v The Queen (1990) 170 CLR 573, followed.
Baumer v The Queen (1988) 166 CLR 51, considered.
Doney v The Queen {1990) 171 CLR 207, considered.

CRIMINAL LAW AND PROCEDURE - Practice and procedure - Duty of prosecution - Addresses
Criminal Code 1988 (NT),s31(2)
Frederick John McCullough (1982) 6 A Crim R 274, followed.
Charles Veela (1990) 47 A Crim R 119, considered.
Roulston (1976] 2 NZLR 644, considered.

STATUTES - Interpretation - Requirements of specific section - "Serious" - "Clearly" - "Ordinary person similarly circumstanced"
Criminal Code 1988 (NT),s154
Hughes v Lord Advocate [1963] A.C. 837, applied.
Attorney-General v Wurrabadlumba {1990) 74 NTR 5, considered.

STATUTES - Operation and effect of - Potential for duplicity in framing of indictment - Distinguish between connected, as against separate, acts·or omissions
Criminal Code 1988 (NT),sl54
Hoessinger v R (unreported, Court of Criminal Appeal (NT) 24/4/92), applied, distinguished.
Clarke and Johnstone [1986] VR 643, considered.
Eades (1991) 57 A Crim R 151, considered.

REPRESENTATION=
Counsel Appellant: Respondent:

Solicitors Appellant: Respondent:

D Hore-lacey / R Coates
L Flanagan QC/	T Wakefield

NT Legal Aid Commission DPP

Judgment category classification: CAT A Court computer Code:
Judgment ID Number: MAR93023 Number of pages: 50
General Distribution

mar93O23
IN THE COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA

No. CA 8 of 1992

BETWEEN:
MICHAEL WINSTON SANBY
Appellant

AND:
THE QUEEN
Respondent

CORAM:	MARTIN CJ., ANGEL & MILDREN JJ.

REASONS FOR JUDGMENT
(Delivered 19 October 1993)

MARTIN CJ:

The background to this appeal, and the evidence bearing upon it, are set out in the reasons of Mildren J. and need not be repeated.

I am in general agreement with his Honour's observations and conclusions, both as to the facts and the law, and agree that the conviction should be quashed.
However, there are some issues about which I would like to add some comments.

This Court should not have been troubled with the ground of appeal relating to the failure of the learned trial Judge to discharge the jury after the prosecutor's opening.
The language about which complaint was raised was only applicable to the manslaughter charges and the accused was acquitted on all of those counts.	Those words had no bearing

upon the charge under s154 of the Code since no subjective mental element is required to be shown in respect of it.
Nevertheless, I feel constrained to say that given the codification of the law relating to manslaughter, it is no longer necessary to engage upon an attempt to define criminal negligence and the introduction of qualifying adjectives.	The words of the Code may not be particularly stimulating, but they avoid any need to resort to emotive words and phrases.
Adherence to assisting the jury by reference to what the law is rather than what it once was, is more likely to avoid the attacks made upon the prosecutor at such length in this case. It is not necessary to decide whether his Honour should have discharged the jury at the close of the opening of the Director of Public Prosecutions, but his Honour's decision was made in the exercise of a discretion which I would not be prepared to overrule.

Again, although it means nothing in the result, it is important to reiterate that counsel are under a positive obligation to the Courts to assist them in the fair administration of justice and are not to knowingly deceive or mislead them.	Although I do not find that there was any intentional misleading of the Court, including the jury, by the prosecutor in this case, his sometimes failure to place evidence in its context, or accurately reflect the evidence in the course of cross-examination and address, could give rise to an impression that unfair advantage was being sought.		This is especially so when attention was being given to important aspects of the Crown case such as the conversation between the appellant and the police regarding his failure to be vigilant, and the period prior to which the appellant had not heated the air in his balloon immediately prior to the collision.	A great deal of time was taken up at trial and before this Court which could have been avoided if these recurring issues had not arisen.

I have made an independent assessment of the sufficiency and quality of the evidence.	In doing so I have not had to concern myself, as did the jury, with issues

relating to the manslaughter charges and have been able, instead, to concentrate on the elements of the offence for which the appellant was convicted.	In a case arising from a fatal event, a fortiori, a calamitous one, great care must be taken to ensure that the workings of the minds of the members of the jury do not initially focus on the result, and then work backwards in a search for an act or omission giving rise to the result.	The provisions of s154 of the Code distinctly separate the two happenings.	Indeed, they need not co-exist. The offence may be committed without anyone suffering grievous harm or death (for example, firing a rifle across a suburban parkland or busy thoroughfare).	It is only if all of the elements going to make up the offence are found that the circumstances of aggravation, if they are alleged, fall to be considered.	In that regard the heavily qualified language of s154(1) must be carefully observed and rigorously applied.
The danger must be serious; the circumstances in which the ordinary person is to be placed must be similar to those of the accused at the relevant time; the ordinary person must be found to have clearly foreseen the danger.	All that beyond reasonable doubt.	To approach the question of displacing the presumption of innocence attendant upon any accused person in a manner which does not give full effect to the words constituting the offence is to invite injustice.	That is so whether the con uct alleged to have caused the serious danger might be regarded as comparatively trivial or most serious (I do not agree that it is only when potential danger is alleged to have been caused can comparatively trivial conduct constitute an element of the offence).

There are two further essential elements which must be made out to constitute the offence.	The act or omission comp!ained of must be shown to have been done or made by the accused, and to have caused the serious danger.	The first of these requirements might not normally present any difficulty, but the second can give rise to difficult questions of fact, to be decided by the application of commonsense to the evidence, and applying the criminal standard of proof.

Here, the first, and perhaps most important question before the jury, was whether they could be satisfied beyond reasonable doubt that the collision between the basket of the appellant's balloon and the envelope of the ill-fated balloon would not have taken place if the appellant had controlled and manoeuvred his balloon in the manner suggested by the Crown he ought to have done.	The appellant asserted that it was quite normal for a balloon to fly under another at a vertical distance of three hundred feet.	That proposition was not contradicted by the Crown.	It stands as a simple proposition about which opportunity was available for contradictory or qualifying evidence to be brought.	There is no apparent reason why it should not have been accepted as a justification for the appellant's inaction.	It should at least have raised a reasonable doubt in the minds of the jury as to whether the appellant had by any act or omission caused a serious danger. Furthermore, in the light of that evidence, it was not open to the jury to be satisfied beyond reasonable doubt that an ordinary person similarly circumstanced to the appellant would have clearly foreseen the danger of collision.

Balloons of the type being flown by the appellant are capable of being rotated by permitting the escape of hot air through vents in the balloon designed for that purpose.	A very experienced balloonist, Mr Kavenagh, witness for the Crown, said that he would use such a method for keeping his eye on other balloons flying in his vicinity, and it may well be that had the appellant adopted that technique he could have kept the ill-fated balloon in view as it was passing underneath him.	In that sense it may be thought that he failed to keep a proper lookout, but whether the ordinary person similarly circumstanced would have performed that manoeuvre is at least debateable, given that by releasing of air from the balloon for that purpose it would cause it to descend, thus bringing it into closer proximity with the balloon passing underneath.

The jury ought to have had a reasonable doubt as to the appellant's guilt arising from the significant volume of

evidence that the ill-fated balloon rose suddenly and swiftly underneath that being flown by the appellant.	The fact that people in the situation of those in the appellant's  balloon may have been mistaken as to whether the ill-fated balloon was rising or the appellant's descending, or each moving towards the other, does not rule out the possibility that their observations were reliable.	The evidence of other eye witnesses, who were able to make a better judgment by  reference to their view of the horizon, and of Professor Joubert ought to have reinforced that possibility.	There is no evidence that had the ill fated balloon performed in the manner described the appellant could have avoided the danger  by having done or by then doing any of the things the Crown alleged he should have done.		There is nothing in the appellant's conduct after the event nor what he told others of it which unequivocally points to his guilt or consciousness of guilt.

The evidence was insufficient to support the verdict.	Accordingly, I would direct judgment and verdict of acquittal to be entered.

ANGEL J:

The Crown appeal in this matter has been discontinued.	There remains for decision Michael Winston Sanby's appeal.		It is from a conviction in respect of a count that on 13 August 1989 at or near Alice Springs in the Northern Territory of Australia, being the pilot of hot air balloon call sign VH-WMS he did control and manoeuvre the said balloon without:

keeping any or any proper lookout whilst flying in company with other balloons;
giving way to hot air balloon call sign VH-NMS which was below him at the time piloted by Antony James Fraser;
giving any radio warning to the pilot of hot air balloon VH-NMS who was in the near vicinity adequate to ensure avoidance of a collision;
having balloon VH-WMS equipped with the necessary instrumentation to ensure the safety of his passengers or the safety of other balloonists and their passengers;
ensuring balloon VH-WMS was in an air worthy condition;
the passenger basket of balloon VH-WMS being in a proper state of repair;
thereby causing serious danger to the lives, health or safety of Antony Fraser and the 12 passengers in balloon VH-NMS, in circumstances where an ordinary person similarly 'circumstanced' would clearly have foreseen such danger and would not have so controlled or manoeuvred the balloon in such circumstances, contrary to sl54(1) of the Criminal Code.
Section 154(1) of the Criminal Code provides: "Any person who does or makes any act or omission
that causes serious danger, actual or potential, to the lives, health or safety of the public or to any person (whether or not a member of the public) in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such

danger and not have done or made that act or omission is guilty of a crime and is liable to imprisonment for 5 years."

Section 154 of the Criminal Code is very broad in scope and covers all manner of conduct:	Baumer v The Queen (1988) 166 CLR 51 at 55, Attorney-General v Wurrabadlu:mha (1990) 74 NTR 5.	Whilst the act or omission giving rise to the danger needs to be voluntary, the danger created thereby need not be an intended consequence, nor a consequence  actually foreseen by the perpetrator of the particular act or omission in question.			The section creates an offence regardless of consequences beyond the danger, actual or potential itself.		The section relates to voluntary conduct constituted by acts and/or omissions which objectively cause serious actual or potential danger irrespective of any consequential harm.	The deliberate use of the words "serious" and "clearly" is significant.		The offence created  by s154 is a lesser crime than manslaughter which, under the Code, relevantly requires actual foresight of the possibility of death.	Section 154 addresses the question of foresight in terms of an ordinary person in similar circumstances to the accused clearly foreseeing a serious danger being caused by  the accused's voluntary acts and or omissions.	I am of the opinion the use of "serious" and "clearly" is intended to permit juries to say in any given case where the line should  be drawn between dangers which may be characterised  as ordinary incidents of modern life, and dangers caused by plainly blameworthy conduct.	In my opinion, s154 is not directed at conduct which causes dangers which are ordinarily accepted as incidents of modern life, or, conduct which, even if giving rise to civil liability in negligence, would not widely or generally be regarded as "criminal''.	The use of "serious" and "clearly", in my view, requires the jury to say in any given case on which side of the line between an acceptable or an unacceptable risk of danger to others, the case before them falls.	Questions of foreseeability are inevitably addressed in hindsight and as Lord Pearce said in a different context in		Hughes v Lord Advocate [1963] A.C. 837 at 857:

"	to demand too great precision in the test of foreseeability would be unfair •.. since the facets of misadventure are innumerable .•."

The jury's task in approaching these matters is a practical and common sense one.	The terms of s154 enable due allowance to be made for errors of judgment, momentary lapses of attention and the like which no reasonable person would label "criminal".

Upon a consideration of the evidence I have reached the conclusion that the jury's verdict in the present case is unsafe and unsatisfactory.

In the course of the learned trial Judge's summing up to the jury, as is customary in this jurisdiction, a written aide-memoir was given to the jury.	In relation to the count on which the appellant was convicted it said as follows:

"Before you can find the accused "guilty" on Count 14, you must be satisfied beyond reasonable doubt of ALL FIVE of the following elements of the offence:
That on 13 August 1989
Michael Winston Sanby as pilot of hot air balloon call sign VH-WMS
did so control and manoeuvre that balloon that it collided with hot air balloon call sign VH-NMS, without any one or more of the following:
keeping any lookout, or any proper lookout, whilst flying in company with other balloons;
giving way to hot air balloon call sign VH-NMS which was below him at the time piloted by Antony James Fraser;
giving any radio warning to Fraser who was in the near vicinity, adequate to ensure avoidance of a collision;
having balloon VH-WMS equipped with the necessary instrumentation to ensure the safety of his passengers or the safety of other balloonists and their passengers;
the passenger basket of balloon VH-WMS being in a proper state of repair
thereby causing serious danger to the lives of Fraser and the 12 passengers in balloon VH-NMS
in circumstances where a hot air balloon pilot of ordinary skill, in similarly[sic] circumstances to those of the accused, -
would clearly have foreseen that danger; and
would not have controlled or manoeuvred the

balloon VH-WMS in the way or ways you find the accused did.

If you are not satisfied beyond reasonable doubt about ALL FIVE of the above elements, it is your duty to find the accused 'not guilty' on Count 14, and you go no further.

If you are satisfied beyond reasonable doubt about ALL FIVE of the above elements, it is your duty to find the accused 'guilty' of the offence under s154(1) of the Code."

In relation to item 5 enumerated above, his Honour said in the course of his summing up to the jury:

"Now when you come to 5 you'll see that no longer on this charge is there any question of your trying to examine what his actual foresight was on that occasion.	You're spared that, you don't have to undertake that.	What you then consider is, if you have got yourself satisfied beyond reasonable doubt that because of his culpable manoeuvring of his balloon he caused this serious danger to these people in the balloon below, then you consider in item 5 what a hot air balloon pilot of ordinary skill, in similar circumstances, would have done.
And you have to be satisfied there, beyond a reasonable doubt, that such a hot air balloon pilot, in those circumstances, would have foreseen that danger.	That is to say - I just give this to you as a possibility, not because it's a view which you should take, because it's entirely a matter for you
- but if you were of the opinion, if you were satisfied beyond reasonable doubt that he hadn't kept a proper look-out and for that reason he'd caused serious danger to the lives of Fraser and the other people below, then when you come to element number 5, you place then an ordinary man, an ordinary hot air balloon pilot in his shoes, in similar circumstances, and you say:	'Would he have clearly foreseen that serious danger to the lives of the people by not keeping a proper look-out?'	And: 'Am I satisfied that he would clearly have foreseen it?' And:	'Am I satisfied that he would not have controlled or manoeuvred the balloon in that way?' That is, by not keeping a serious look-out.
If you are satisfied beyond reasonable doubt that your ordinary hot air balloon pilot would have clearly foreseen the danger and would not have behaved in that way, then that would be the last of the elements on which you would have been satisfied beyond reasonable doubt.	Your duty then would be to find him guilty of count 14.	If you are left with a reasonable doubt about any one of those elements, 1

to 5, your duty equally is to find him not guilty
II

His Honour had also to direct the jury on the counts of	manslaughter - of which the appellant was acquitted - and in doing so he referred to the question of actual foresight of the possible deaths of the occupants of the ill-fated balloon. In the course of his summing-up, which must be read as a whole, his Honour said after a short adjournment:

"Ladies and gentlemen of the jury, I continue to sum up to you.	First of all I correct one thing I said to you earlier, I said to you that the Crown case was that the accused man failed altogether to keep a look-out and that was why the Crown relied heavily on the evidence of Kennie Giblin and the young girl. Well, it's true that's one way the Crown puts its case, that he did fail altogether to keep a look­ out.	But the other way is that if he did see the ill fated balloon, that he saw it in circumstances which were so late that it was impossible for him to avoid a collision, when in fact he should have seen it earlier.		So it puts it in two ways:	(1) That he altogether failed to look and the other one was that he saw it too late, because he was keeping an inadequate look-out.

Right.	Now I'll deal more briefly with other matters in the case, because as must already have been apparent to you, ladies and gentlemen of the jury, the view which seems to me to be quite overwhelming in this case, that this is a case of proper look-out, whether the Crown have proved this man kept a proper look-out or not, and everything really seems to be subservient to that."

Evidence was led by the Crown at the trial of a conversation between the appellant and Detective Senior Constable Martin James Voyex at Perth Airport on
16 August 1990.	The conversation included the following exchange:

"Q:	Do you think you are negligent in any way.	I mean in relation to the accident?

A:		Well, like I said to my lawyer, all they can get me for is vigilant lookout.	The basket is so big and there was so many people around.
Q:	How many people were in your basket that day?

A:	Twelve.

Q:	So you can be found responsible for the deaths for not keeping a vigilant lookout?
A:	Yes, but it's all a conspiracy.	They want blood."

The prosecution relied on this conversation as constituting an admission of guilt.

There can be no question but that this evidence and the learned trial Judge's comment about look-out focussed the jury's attention to the question of foresight and I can not help thinking that the jury's task of drawing the line previously referred to was lost or obscured.	A stark contrast was drawn between actual foresight of the appellant for the purposes of the manslaughter counts and foresight of serious danger caused by the appellant's conduct on the part of an ordinary person in similar circumstances to the appellant for the purposes of s154.	Nevertheless, I think the appellant's statement at Perth Airport and his Honour's statement:	"
this is a case of proper look-out, whether this man kept a proper look-out or not, and everything really seems to be subservient to that." - were both capable, without further explanation, of misleading the jury into thinking a failure to see the ill-fated balloon and to avoid the collision, when coupled with the catastrophic consequences of the collision were sufficient, without more, to constitute a breach of s154 of the Code.

Given the various conflicting eye-witness accounts as to precisely how the balloons collided, and given the evidence of the occupants of the appellant's balloon as to when and in what circumstances the ill-fated balloon was first seen in relatively close proximity to the appellant's balloon, and given the lack of evidence as to when the risk of collision ought first to have become apparent to the appellant and what the appellant might then have done to avoid a collision, and given the room for confusion in the mind of the jury as to the significance of the appellant's conversation about 'negligence' at Perth Airport and the absence of - and
11

need for - an explanation as to the demarcation between acceptable and unacceptable dangers, I consider the jury ought to have entertained a reasonable doubt as to the appellant's guilt and that the verdict of guilty in respect of Count 14 is unsafe and unsatisfactory.

In these circumstances is it unnecessary to refer to other grounds of appeal argued before us.

I make no comment concerning the conduct of the prosecution and defence cases at the trial or on the appeal.

I would allow the appeal, quash the conviction and direct that a verdict of not guilty be entered.

MILDREN J: 

As a result of a ballooning accident which occurred near Alice Springs on 13 August 1989, the appellant was charged with thirteen counts of manslaughter, or, alternatively, with one count of having committed a dangerous act, contrary to s 154(1) of the Criminal Code, together with the circumstance of aggravation that he thereby caused the death of thirteen people, the passengers and pilot of a hot air balloon "VH-NMS." The jury acquitted the appellant on each of the manslaughter counts, but entered a verdict of guilty in respect of the alternative dangerous act count. There was some confusion as to what the jury's verdict was with respect to the circumstance of aggravation, which was resolved by the learned trial judge ultimately recording a verdict of not guilty in that regard. The learned trial judge imposed a sentence of two years' imprisonment and fixed a non-parole period of eight months. The Crown initially appealed as of right on three grounds, two of which related to penalty and the third of which related to the trial judge's interpretation of the jury's verdict in respect of the circumstance of aggravation alleged. The Crown appeal has now been abandoned. The appellant sought leave to cross-appeal against conviction and sentence on a total of ten grounds. Leave to appeal was granted in respect of all except the first of the proposed grounds.

Before considering the grounds of the cross-appeal, it is convenient to sketch the main facts in broad outline.
The appellant was a director of Farbix Pty Ltd which traded as Balloon Safaris, at 41 Gap Road, Alice Springs. The company also used the name "Toddy's." The company was licensed under s27 of the Civil Aviation Act 1988 (Cth) to use balloons for the carriage of passengers for hire or reward, subject to compliance with the provisions of the Act, the Civil Aviation Regulations 1988 and the Civil Aviation Orders. The appellant was the company's chief pilot. The company also employed one Antony Fraser as a balloon pilot, and on the day in question, it operated two balloons, VH-NMS (piloted by Fraser, and

hereinafter referred to as "Fraser's balloon") and VH-WMS (piloted by the appellant and hereinafter referred to as "the appellant's balloon"). Both balloons were operated by hot air forced into the envelopes of the balloons by burners attached to a basket which was suspended below. Each basket carried a pilot and twelve passengers. When inflated, Fraser's balloon was 25 metres in diameter and 29½ metres in height (from the bottom of the basket suspended beneath the balloon to the top of the balloon). The appellant's balloon was slightly smaller, about one half to three quarters of a metre smaller in diameter and about a metre or so smaller in height. The appellant's basket was oblong shaped and measured 2.7 metres x
1.8 metres x 1 metre high. It was divided into three compartments. The appellant stood in one compartment at the end of the basket. This compartment also contained the gas bottles. The rest of the basket was separated into two compartments longitudinally, each of which held six passengers.

Just after 6.45am on 13 August 1989, and just before sunrise, a total of five hot air balloons ascended into the sky from the vicinity of a launch area near the Santa Teresa Road, about twenty kilometres south of Alice Springs. Three of these balloons were operated by totally different businesses from the appellant's company. The first balloon to be launched was piloted by a Mr Kenneth Watts. This was followed by a balloon piloted by a Mr Sven Tetlow. Then came a balloon piloted by a Mr John Sanby (the appellant's brother). This was followed by the appellant's balloon. The last balloon to be launched was Fraser's. Each of the balloons carried a number of passengers; in particular there were twelve passengers in both of the balloons operated by the appellant's company.

At the commencement of the flight by the appellant's balloon, the appellant contacted the control tower at Alice Springs airport by radio and obtained approval for that balloon to fly "in company" with Fraser's balloon up to a height of 4,000 feet above sea level, or 2,000 feet (approximately) above ground level. The appellant took his

balloon to or near its maximum height, and had been in the process of describing and pointing out features on the ground to his passengers when the basket of his balloon came into contact with the top of Fraser's balloon. The basket of the appellant's balloon penetrated the fabric of Fraser's balloon and entered the interior of that balloon, fouling control lines in such a way that when the two balloons separated as a result of the appellant operating the burners to his balloon to cause it to rise, the basket of the appellant's balloon pulled a control rope with it which opened a large vent in the top of Fraser's balloon causing the latter to deflate rapidly and crash to the ground. All of the occupants of Fraser's balloon were killed. The appellant's balloon was not damaged, nor were any of its occupants injured, and this balloon was able to return safely to ground. It appears to have been accepted by the parties that the penetrating hole in the fabric of Fraser's balloon caused by the impact with the basket to the appellant's balloon would not have caused Fraser's balloon to plummet to the ground per se, and that but for the fact that the fouling of the line caused the vent to open, Fraser's balloon would not have deflated to such an extent that a controlled landing of that balloon could not have been made.

The tragic deaths generated considerable media interest in the accident and in the subsequent coronial enquiry into the cause of those deaths. The appellant, clearly believing that the inquest was likely to result in criminal charges being brought against him, attempted to leave Australia for South Africa to avoid extradition. He was apprehended in Perth on a Qantas Airways flight bound for Zimbabwe en route to South Africa and subsequently interviewed by police. The Crown relied upon the appellant's flight as evidence of consciousness of guilt and also upon admissions he made to the police during his record of interview as constituting admissions of his guilt. The appellant did not give evidence at the trial. Nevertheless his counsel submitted both at the trial and at the hearing of the appeal that on the evidence as whole, the inferences of guilt which the Crown

sought to draw from this material was not reasonably open. It will be necessary to return to aspects of the facts and the evidence in more detail when considering the various grounds of appeal.

Ground two of the Notice of Appeal is that the "learned trial judge erred in declining to discharge the jury on the application of counsel for the applicant (appellant) after the prosecution opening address to the jury."	The appellant's submission was that the opening address to the jury was unfair because it lacked balance, referred to evidence out of context, was inflammatory and emotive, and was in essence "an argument for conviction." Although not the subject of a separate ground of appeal, a similar submission was made in respect of the prosecutor's closing address to the jury.

The duty of a prosecutor in addressing a jury has been stated on many occasions. I will not refer to all of the many authorities. It is sufficient to refer to the judgment of the Court of Criminal Appeal, Tasmania, in Frederick John McCullough (1982) 6 A Crim R 274 at 285-286:
"The proper role of prosecuting counsel was described by the editor of the 19th edition of Kenny' s Outlines of Criminal Law at pp 611 and 612:
1 A prosecuting counsel stands in a position quite different from that of an advocate who represents the person accused or represents a plaintiff or defendant in a civil litigation. For this latter advocate has a private duty-that of doing everything that he honourably can to protect the interests of his client. He is entitled to "fight for a verdict." But the Crown counsel is a representative of the State, "a minister of justice", his function is to assist the jury in arriving at the truth. He must not urge any argument that does not carry weight in his own mind, or try to shut out any legal evidence that would be important to the interests of the person accused. "It is not his duty to obtain a conviction by all means; but simply to lay before the jury the whole of the facts which compose his case, and to make these perfectly intelligible, and to see that the jury are instructed with regard to the law and are able to apply the law to the facts." "It cannot be too often made plain that the business of counsel for the Crown is fairly and impartially to exhibit

all the facts to the jury. The Crown has no interest in procuring a conviction. Its only interest is that the right person should be convicted, that the truth should be known, and that justice should be done."
That passage was cited with approval by W.B. Campbell J sitting as a member of the Court of Criminal Appeal in Hay and Lindsay (1968] Qd R 459. However, it should also be said that the observance of those canons of conduct is not incompatible with the adoption of an advocate' s role. Counsel for the Crown is obliged to put the Crown case to the jury and, when appropriate, he is entitled to firmly and vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack that advanced on behalf of the accused. But he must always do so temperately and with restraint, bearing constantly in mind that his primary function is to aid in the attainment of justice, not the securing of convictions.
As the New Zealand Court of Appeal said in Roulston
(1976] 2 NZLR 644 at 654:
1    •••	it has always been recognised that prosecuting counsel must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused. Such conduct is entirely inappropriate and a basic misconception of the function of any barrister who assumes the responsibility of speaking for the community at the trial of an accused person. Naturally enough a proper balance needs to be maintained. The view expressed in 10 Halsbury' s Laws of England (3rd edition) para 761 that prosecuting counsel "should regard themselves as ministers of justice assisting in its administration" ought not to lead to the assumption of a role so emasculated as to merit Lord Devlin' s remarks in Trial by Jury (1966), pp 122- 123:
"... in some places the pendulum has swung so far, and the ministry has moved so close to the opposition, that the prosecution's case is not adequately presented, and counsel, frightened of being accused of an excess of fervour, tend to do little except talk of reasonable doubt and leave the final speech on the facts to the judge."

The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel	to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against

the accused then an appellate court will not hesitate to follow the safe course and order a new trial.'"

In Charles Veela (1990) 47 A Crim R 119, Malcolm CJ said (at 122), after referring to the relevant authorities, including the passage cited above:
"The starting point is that it is fundamental that the accused should have a fair trial and that counsel for the prosecution should not do anything which would prejudice the fairness of the trial. This is one of the duties of any counsel. Counsel should not make assertions or make imputations which are likely to prejudice a jury unfairly against a party. Where there is a real risk that remarks made by counsel would have improperly influenced the jury the court has jurisdiction to order a new trial: Croll v McRae (1930) 30 SR(NSW) 137; Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200; Vozza v Tooth & Co Ltd
[1963] NSWR 1675; Chatzipantelis v Grimwad Castings co
Pty Ltd [1966] VR 242; and Smout v Smout [1989] VR 845."

Mr Hore-Lacey criticised the prosecutor's opening address for using emotional language calculated to persuade the jury to convict by reference to prejudice rather than reason. A number of matters were relied upon. The prosecutor said in his opening address that the appellant had "a callous disregard for the two fundamental precepts that guide balloonists"; that the appellant had departed from what was reasonable in his piloting of the balloon to the extent that "it was a gross deviation from what ordinary, reasonable people would expect"; that before the conclusion of the inquest, the appellant had "decided to leave the country, go to a place with which there was no extradition treaty, which was Zimbabwe"; that the appellant "showed a callous and reckless and totally unacceptable disregard for the life and safety of people who were up there, fellow balloonists." In my opinion the prosecutor did not go too far with these remarks. He was, after all, opening a case for manslaughter, an essential ingredient of which was that the Crown had to prove actual foresight by the appellant of the possibility of death to his passengers as a consequence of his actions, which were of such a kind that no reasonable person similarly circumstanced to the appellant and having such foresight would

have proceeded with that conduct: Criminal Code, s31(2). The Director of Public Prosecutions, Mr Flanagan QC, submitted that by his use of the words such as "callous" and "gross" he was drawing to the jury's attention both the need for there to be proof of consciousness by the appellant of his own departure from the relevant standard, as well as what the relevant standard was. Although it may have been unnecessary for Mr Flanagan to have gone so far, as I think Mr Flanagan fairly conceded, I do not think the prosecutor was putting his case too high in all the circumstances. In my view the Crown was entitled to put his case in that way, if there was evidence which the jury might accept as sufficient to support it. In the main, the Crown's submissions rested upon inferences which the prosecutor would be inviting the jury to draw from certain of the facts which the Crown intended to lead. It may well be that these facts were capable of an interpretation other than that for which the Crown contended; indeed, the jury's verdict shows that the jury was not convinced to the requisite degree of proof of the Crown's submission on the manslaughter counts. However, I consider that the prosecutor's remarks were not unfair, prejudicial or emotional, and that there was some evidence which, had the jury accepted it, might have supported the inferences the Crown was seeking to prove.

Mr Hore-Lacey also criticised the prosecutor's opening address for "not putting the evidence in a balanced way", which, as I understand it, was his main submission. By way of example, the prosecutor opened that two witnesses, passengers in the appellant's balloon, would say that they heard another passenger say to the appellant (referring to the balloon piloted by Fraser), "Didd t you see it?" to which the appellant said, "No." As to that evidence, it was suggested that the appellant meant that he did not see Fraser's balloon until it was too late for him to take evasive action, rather than the appellant did not see the other balloon at all. As the evidence turned out as the result of cross-examination, it may well be that Mr Hore-Lacey is correct. Similarly, Mr Hore­ Lacey criticised the Crown for inferring to the jury that the

appellant's reason for departing the country was an indication of consciousness of guilt, when a fair reading of his explanation to the police might well lead one to the conclusion that he feared he was unfairly dealt with by the coroner at the inquest. I will not deal with each of the complaints made by Mr Hore-Lacey seriatim; they were in a similar vein, namely that another explanation other than that which the prosecutor opened to the jury was reasonably open from other facts either mot mentioned by the prosecutor in his opening at all, or if mentioned, not placed in context. I do not consider that there was any serious departure by the prosecutor from his duty. It may have been better if the prosecutor had mentioned some of the matters Mr Hore-Lacey drew to our attention, but I do not consider that any injustice was done to the appellant. Nor, I note, did the trial judge, who dismissed Mr Hore-Lacey' s application to discharge the jury following the opening. The trial judge is an experienced judge, who was in a better position than we are now to judge the impact of the prosecutor's address as a whole from such matters as the intonation of voice used as well as the precise words used. I note that throughout the opening the prosecutor used expressions such as "the Crown will be submitting to you" as indicative that the prosecutor was making a clear distinction between matters of fact which the Crown intended to prove, and what inferences the Crown intended to invite the jury to draw from those facts. The learned trial judge told the jury that nothing said by Mr Flanagan was evidence, that the Crown case will stand or fall on the evidence to be called, and that Mr Flanagan was putting to the jury what the Crown hoped to prove, and whether or not the Crown would prove its case would depend upon the jury's assessment of the evidence. Furthermore, the prosecution opening address was delivered on 16 November 1992 and the jury did not retire to consider its verdict until 3.30pm on 30 November 1992. On a number of occasions the trial judge directed the jury that it was their own view of the facts that was important and that the jury was not bound to accept the views of counsel. If, contrary to my view, the prosecutor's opening address to the jury was unfair to the appellant, I do

not think that there is any basis for contending that the jury might have been improperly influenced by the prosecutor's opening address.

The verdict was unsafe and unsatisfactory - ground 7

At the conclusion of the hearing of the appeal, I formed the strong impression that the ground of appeal most likely to succeed, and the ground which, as the argument developed, appeared to be the main ground of appeal, was ground 7, which is in the following terms:

"The verdict of "guilty" on count 14 was unreasonable, could not be supported having regard to the evidence and was such that it constituted a miscarriage of justice."

As was observed in Rostron v The Queen (1991) 1 NTLR
191 at 205, it is well settled that an appeal on those grounds is another way of saying that the verdict was unsafe and unsatisfactory. It is equally well settled that a verdict may be set aside as unsafe and unsatisfactory notwithstanding that, as a matter of law, there was evidence upon which the accused could have been convicted: Chamberlain v The Queen
[ 2] (1984) 153 CLR 521; Morris v The Queen (1987) 163 CLR
454. The task of this Court, once leave to appeal has been granted, is to undertake an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant: Morris v The Queen (1987) 163 CLR 454. In performing this function, this Court is deciding a question of fact, and this Court is obliged to make its own independent assessment of both the sufficiency and quality of the evidence. But this does not mean that this Court is justified in usurping the jury's function and disturbing the verdict of guilty merely because we disagree with it: Chamberlain v The Queen [N 2], supra, at 534 per Gibbs CJ and Mason J; Chidiac v The Queen (1990-91) 171 CLR 432. In cases where credibility of evidence is decisive, that will be particularly so. Nevertheless, even in such cases, if at the end of the day

this Court is satisfied that the jury ought to have had a reasonable doubt, the verdict cannot stand: see especially Morris v The Queen, supra, at 474 per Deane, Toohey and Gaudron JJ, and at 464-465 per Mason CJ.

The appellant was found guilty of the offence of "dangerous act", contrary to s154 of the Code, and it is necessary to briefly discuss this offence to establish what the necessary standard of departure from the conduct of ordinary men that the jury must have been satisfied, beyond reasonable doubt, the appellant transgressed. Section 154 provides as follows:

(1)	Any person who does or makes any act or omission that causes serious danger, actual or potential, to the lives, health or safety of the public or to any person (whether or not a member of the public) in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger and not have done or made that act or omission is guilty of a crime and is liable to imprisonment for 5 years.

If he thereby causes grievous harm to any person he is liable to imprisonment for 7 years.

If he thereby causes death to any person he is liable to imprisonment for 10 years.

If at the time of doing or making such act or omission he is under the influence of an intoxicating substance he is liable to further imprisonment for 4 years.

Voluntary intoxification may not be regarded for the purposes of determining whether a person is not guilty of the crime defined by this section."

It has been said that this section originated from a suggestion by Barwick CJ in The Queen v O'Connor [1980-81] 146 CLR 64 at 87 that there ought to be "a statutory provision which gave to a jury who were driven to the conclusion that an accused, due to the result of self-induced intoxication, was not culpable of the crime with which he is charged to be able to bring in an alternative verdict that he, by his own conduct, had brought himself to a state where he was not responsible for his acts." But it is plain that the offence

created by sl54(1) goes far beyond what Barwick CJ had in mind. As the High Court observed in Baumer v The Queen (1988)
166 CLR 51 at 55:

"Section 154 of the Code is an unusual section. As Maurice J observed, it is not specifically aimed at driving. It casts a wide net, so as to cover all acts or omissions endangering the life, health or safety of any member of the public where the risk ought to have been clearly foreseen and the act or omission avoided. The offence so created can therefore cover an enormous range of conduct from the comparatively trivial to the most serious."

Since Baumer v The Queen was decided, and since the decision of this Court in Attorney-General v Warrabadluml:Jla (1990) 74 NTR 75, which had confined the offence to acts or omissions affecting persons, who, vis-a-vis the accused, are members of the public, the section has been further amended, and its scope widened, to catch acts or omissions which endanger the life, health or safety of any person, whether a member of the public, or not.

Notwithstanding the width of the provision, and the observation in Baumer that the offence can cover conduct which is "comparatively trivial", it is, in my opinion, clear that the section requires more than proof of conduct which, in a civil court, might be sufficient to sound in damages for negligence. Firstly, the section requires proof of an act or omission that causes serious danger, actual or potential, to the life, health or safety of another. Although the act or omission need not be of a quality that it causes any actual danger, so long as there is a potential danger, (it is in this sense that the offence may be comparatively trivial) nevertheless the danger, whether actual or potential, must be "serious." Obviously this is a question of degree calling for an evaluation of the severity of the risk. If the danger is 'serious,' the quality of the seriousness of the risk is to be judged by the requirement that the danger must be clearly foreseeable by an ordinary man, and of such a quality, that the ordinary man would not have taken it. The use of the word "clearly" indicates, as does the word "serious", that the risk

must not be too slight, too remote, too improbable or unlikely; but that is not to say that only risks that are fanciful or far-fetched are outside of the section. In my opinion the test of foreseeability of risk is not the same as reasonable foreseeability of risk of injury in the law of civil negligence. The test to be applied is that of
the1 or dinary person similarly circumstanced' in contradistinction from that of a 'reasonable person similarly circumstanced': c.f. s31(2) of the Code. This is another indication that the proper test is a higher one than the standard of care of the reasonable man on the Clapham omnibus. The test of the •ordinary man similarly circumstanced' who must I clearly' foresee the risk, is an indication that the section intends to make allowance for ordinary human fallibility-the sort of common place errors of judgment and inadvertent acts of carelessness that happen because the risk is outside of normal human experience, because the wrongdoer's attention is distracted, because the wrongdoer makes the wrong choice when confronted with the need for sudden decision, or because of other similar factors. But to say that is not to substitute a different test from that required by the section. The jury must be satisfied beyond reasonable doubt that the act or omission caused serious danger to the life, health or safety of some other person in circumstances where an ordinary person, similarly circumstanced to the appellant, would clearly have foreseen such danger and not have done or made that act or omission. In applying that test, the jury must take into account all of the circumstances that the appellant found himself in as well as take into account the age, experience and level of skill of the appellant in whatever he was engaged in, if relevant to the foreseeability of danger by the act or omission in question. In this case, this means that the circumstances must be judged by reference to the fact that the appellant was an experienced balloonist. He was licensed as a commercial pilot, with over 2,000 hours flying experience, and had been operating as a commercial balloonist for a number of years. Consequently his actions or omissions fell to be judged by the standards of an ordinary, experienced, licensed, commercial balloonist.

Count 14 of the indictment, in the form it was left to the jury, was as follows:

"On 13 August 1989 at or near Alice Springs in the Northern Territory of Australia, being the pilot of hot air balloon call sign VH-WMS did control and manoeuvre the said balloon without:

keeping any or any proper lookout whilst flying in company with other balloons;
giving way to hot air balloon call sign VH-NMS which was below him at the time piloted by Antony James Fraser;
giving any radio warning to the pilot of hot air balloon VH-NMS who was in the near vicinity adequate to ensure avoidance of a collision;
having balloon VH-WMS equipped with the necessary instrumentation to ensure the safety of his passengers or the safety of other balloonists and their passengers;
omitted;
the passenger basket of balloon VH-WMS being in a proper state of repair;

thereby causing serious danger to the lives, health or safety of Antony Fraser and the 12 passengers in balloon VH-NMS, in circumstances where an ordinary person similarly circumstanced would clearly have foreseen such danger and would not have so controlled or manoeuvred the balloon in such circumstances."

One of the other grounds of appeal is that count 14 is bad for duplicity. It was submitted on behalf of the Crown that there was no duplicity because only one dangerous act (or omission) was alleged, i.e. manoeuvring or controlling the balloon in a way which caused serious danger. It was further submitted that the enumerated paragraphs were particulars of the act or omission which caused the serious danger, and that proof of any one or more of the enumerated particulars was "a precondition to characterising the means of controlling or manoeuvring the balloon as dangerous." Thus it was said that  as the indictment alleged one act of dangerous piloting of the appellant's balloon, at one time and place, the indictment was not duplicitous, and the jury was entitled to convict if satisfied beyond reasonable doubt as to any one or more of the enumerated paragraphs. Further, it was submitted that the jury was entitled to convict, even if there was no unanimity of  view as to which of the enumerated paragraphs was proved, so

long as the jury was unanimously satisfied beyond reasonable doubt in the result of the appellant's guilt. The Crown relied heavily on the judgments of the Court of Criminal Appeal (Victoria) in Eades (1991) 57 A Crim R 151 at 155-57; and in
Clarke and Johnstone [1986] VR 643 at 661; (1986) 21 A Crim R
135 at 153-53, in support of these propositions. It is necessary to deal with this submission first, because in my view, no discussion of the unsafe/unsatisfactory ground is possible without clear identification of the relevant act or omission which is the basis of the charge.

The appellant firstly submitted that the verdict was necessarily ambiguous, therefore duplicitous, because paragraphs 1 and 2 were really alternatives, and paragraphs 3,
4 and 6 were each separately capable of amounting to an act or omission capable of constituting an offence against the section; and the verdict did not reveal which of the acts or omissions the appellant is supposed to have done. Reliance was placed upon the observations of Gallop Jin	Hoessinger v R (unreported, Court of Criminal Appeal (NT) 24/4/92) at 12, where his Honour said:

"	where an information or complaint is so drawn as to disclose more than one offence and one set of facts amounts to each of the various offences covered by the charge, the proper course is to put the complainant to election. The Prosecutor clearly should be required to identify the transaction on which he relies, and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence, the legal nature of which is described in the complaint.

At the trial of the present applicant, the Crown relied upon alternative occurrences as constituting the Act which is an offence against s154 of the Code. Whether the conviction which followed may be described as duplicitous or having a latent ambiguity, it is bad and must be set aside."

Section 154 of the Code requires in the first place that the Crown allege and prove an act or omission that causes serious danger, actual or potential, to the life health or safety of the public or to any person, whether or not a member

of the public. The act or omission may be constituted by facts which involve a single simple incident, e.g. pulling the trigger of a loaded gun whilst it was pointed in the general direction of someone; or driving a motor vehicle through a red light across a busy intersection. On the other hand, the act or omission may be more complex and consist of a series of facts so closely connected in time and place as to in reality amount to one continuous act or omission. The most common example of the latter is the driver of a motor vehicle who simultaneously does a number of things each of which, whether alone or in combination, might amount to the single act of driving his vehicle in such a manner that he causes serious danger to the life, health or safety of the public. For example, the act of driving might involve a heavily intoxicated driver proceeding on the wrong side of the road and at a very considerable speed whilst not paying any attention to where he is going. In my opinion an indictment that alleged as the' act' the driving of a motor vehicle in such circumstances would not be duplicitous: see Ex parte Graham; Re Dowling and Another (1968) 88 WN (Ptl) NSW 270; R v Juraszko (1967) Qd R 128; Hosessinger v R, supra, per Gallop J at 7-10. Similarly, there would be no duplicity if the particulars relied upon to prove the act or omission comprised a continuity of action or a series of connected acts so closely connected in time and space as to amount to a single discrete episode. On the other hand, if the facts relied upon showed that the incidents were not so connected so that in reality two or more separate offences were committed, there would be a latent ambiguity which would give rise to duplicity if a conviction were recorded without the prosecutor being put to his election as to which of the offences he intends to proceed with: see Hoessinger v R, supra; Johnson v Miller (1937) 59 CLR 467.

It was not suggested that there was any latent ambiguity in the way the facts alleged in order to support the enumerated paragraphs were presented to the jury. The trial judge, in his summing up, very properly directed to the jury that they were to consider only the circumstances of the

appellant's conduct in the minute or so prior to the collision. In my opinion none of the enumerated paragraphs (with the possible exception of paragraph 4, which I will deal with in a moment) gave rise to any duplicity. There was only one act, namely, the manner of the piloting of the balloon in the short period of time immediately before the collision and in the circumstances then prevailing. The enumerated paragraphs serve the purpose of providing particulars of the manner of the piloting in the relevant circumstances. It is clear that in such a case, the jury is not required to be unanimous as to which of the matters leads them to conclude that the accused is guilty: see Clarke and Johnstone (1986) 21 A Crim R 135 at 154. The passage relied upon by the appellant from the judgment of Gallop J does not assist the appellant.
In its context, it is plain that his Honour was there referring to an indictment which disclosed more than one offence. That is not the case here. Similarly, the case of Trotter (1982) 7 A Crim R 8, also involved more than one separate incident, and is distinguishable.

As to the paragraph enumerated 4, it was alleged that the appellant failed to have the appellant's balloon equipped with the necessary instrumentation "to ensure the safety of his passengers or the safety of other balloonists and their passengers." It was submitted that the allegation of lack of instrumentation for the safety of the passengers in the appellant's balloon really amounted to a separate charge. In my opinion this is not so. The words used describe the purpose of the instrumentation, which was, to ensure the safety of both the appellant's passengers or the safety of other balloonists and their passengers. If the purpose of the instrumentation was solely for the purpose of securing the safety of the appellant's passengers, it is difficult to see how the act of controlling and manoeuvring the appellant's balloon without instrumentation could logically cause any danger to the life, health and safety of Fraser and his passengers. The use of the word "or" in the context of paragraph 4 was plainly meant to mean' as well as'. The Crown never presented its case on the basis that the lack of

instrumentation resulted in any danger to the appellant's passengers; the case was presented on the basis that its absence resulted in danger to Fraser and his passengers. Whilst I think that, technically speaking, paragraph 4 might have been better drafted, I do not consider that any duplicity, whether latent or patent, existed, and nor do I consider that the jury were likely to have been misled in any way by the drafting of this paragraph.

It is convenient at this point to deal with another submission put on behalf of the appellant, viz., that there was no evidence that the basket was not in a proper state of repair, and that this issue ought not to have been left to the jury. There were two witnesses called by the Crown on this subject. The first was Philip Robert Kavenagh, the principal of a company which manufactured the envelope to Fraser's balloon, and an experienced air balloonist. He said that he saw the appellant's balloon whilst at the coroner's court, that it had torn leather around the base of the basket and metal strips under the running strips, and "was tin terribly good condition." He described those metal strips as aluminium strips about two to three inches wide and one eighth of an inch thick screwed onto the bottom of the basket instead of the usual timber runners which are designed to protect the bottom of the basket from the ground. He expressed the view that because of this the basket would have more easily torn another balloon if it came into contact with that balloon (AB 65-66). He also said that given the total weight and size of the appellant's balloon, a closure rate of fifty feet per minute between the two balloons would have been sufficient for the basket of the appellant's balloon to have penetrated and fallen inside Fraser's balloon (AB 469). (This corresponds to a closure speed of just over one half of one mile per hour).
In cross-examination, the following exchange occurred (AB
503):

"Q:		When you said that at 50 feet per minute you'd expect the basket to penetrate the envelope of your balloon, you' re referring, are you, to the basket in pristine condition?---Well, just the very weight of

it would be enough to go through the fabric. The fabric's not strong enough to withstand that sort of load.
You' re referring to a basket in pristine condition?­
--Well, in any condition. It's - it was weight rather than condition that was the cause of the comment."

Later in cross-examination this witness agreed that he had said at the inquest, concerning the condition of the basket, that "so far as penetration goes the particular basket that hit this balloon was in a condition that wasn't conducive to not causing an entry into another balloon" (AB 505).

The second witness to comment on the state of the basket was David Hector Allen, a pilot and examiner of airmen with the Civil Aviation Authority. His opinion (AB 184) was that the basket was airworthy and that there was nothing untoward in its condition.

This being the sum total of the evidence concerning the basket's condition, it is my view that there was no evidence that the passenger basket was not in a proper state of repair. At best the evidence of Mr Kavenagh goes no further than that, because it had aluminium runners rather than wooden ones it would have in some undefined circumstances not shown to be relevant in this case permitted the basket to more easily have penetrated a balloon if it came into contact with it; but this is not evidence that the basket was not in a proper state of repair. Further, given that, on all of the evidence, the closure rate between the two balloons must have vastly exceeded fifty feet per minute, the condition of the basket, whatever it was, was not a cause of danger to anybody. To say of the basket that it was "not in terribly good condition" is not the same as saying it was not in a proper state of repair, and given that the only real criticism of it was the presence of the aluminium runners, no such inference could be drawn. The torn leather around the base was not shown to have affected the basket's state of repair in any material way. The learned trial judge in his summing up did say to the

jury that the real issue was whether or not the appellant had been keeping a proper look-out, and that, if the jury thought that the only matter the Crown had proved was that the basket was not in a proper state of repair, the jury could hardly conclude that the basket caused any serious	danger to Fraser and his passengers. It is obvious from the trial judge's comments that the learned trial judge must have thought that the evidence concerning the state of the basket, whilst tenuous or vague, was sufficient to be taken into account and capable of supporting a guilty verdict when considered, not in isolation, but in conjunction with some or all of the other matters alleged: see Doney v The Queen (1990) 171 CLR 207.
Whilst I appreciate that the test laid down by the High Court in Doney is not a high one, in my view the evidence as to the state of the basket, taken at its highest, was defective to such a degree that whether alone or in combination with other matters, it could not sustain a verdict of guilty. This conclusion however does not necessarily mean that the appeal should be allowed, and it is necessary to consider further the evidence lead in support of the conviction to see whether the conviction ought to stand.

The main thrust of the case against the appellant was that he failed to keep a proper look-out for Fraser's balloon, failed to give way to it, and failed to notify Fraser by radio of his position so as to avoid the collision. It was not in dispute that the upper balloon has a duty to give way to a lower balloon. The rationale for the duty is that the pilot of the lower balloon is unable to see what is above him because his own balloon precludes his vision. There was no dispute that both balloons were fitted with radios and could communicate with each other, and that the appellant had had no radio communication with Fraser at any time immediately prior to the collision. The appellant claimed, in his records of interview with the police, that he last saw Fraser's balloon some 300 to 400 feet below him about thirty seconds before the impact, at which time it was travelling horizontally across his path and that he expected Fraser's balloon to pass harmlessly by. Constant observation of Fraser's balloon was

not possible by the appellant because the basket in which the appellant was standing prevented him from seeing what was directly below him unless he leaned out over the edge of the basket. The appellant's case was that his balloon remained at roughly a constant height, but that Fraser's balloon suddenly and unexpectedly rose, whilst under the appellant's balloon, at a rate, which, at least for balloons, was so rapid that it gave the appellant no opportunity to see it coming or to take evasive action. This manoeuvre by Fraser was such, so it was submitted, that an ordinary experienced balloonist would not have expected it to occur, with the result that the danger was not foreseeable in the sense required by the section. In essence the appellant's case was that there was a reasonable hypothesis consistent with his innocence which the Crown had not disproved, and accordingly the jury ought to have had a reasonable doubt as to his guilt.

In support of the appellant's case was the evidence of a number of eyewitnesses who claimed that Fraser's balloon rose very suddenly and rapidly underneath the appellant's balloon, and whilst in close proximity to it. The appellant also called an expert, Prof Joubert, whose evidence was based on a video taken of the impact, to support the contention that Fraser's balloon ascended rapidly.

The Crown sought to prove that the appellant's story that he had last seen Fraser's balloon in the position he described to the police was false, that he never saw Fraser's balloon at any time immediately prior to the impact, that the eyewitnesses who claimed to see Fraser's balloon rise rapidly were mistaken, that whilst Fraser's balloon was ascending, the appellant's balloon was descending, that Prof Joubert' s evidence was unreliable, that the appellant ought to have realised that Fraser was below him, and that he ought to have taken evasive action.

In order to put the case into context, it must be remembered that balloons are very slow moving and not easily manoeuvrable. The Crown called a number of expert witnesses

whose evidence was relevant to establis the way in which balloons were flown, what instruments were carried and why, as well as what precautions ordinary experienced balloonists would take when flying in the vicinity of other balloons.

Mr Kavenagh, whose company was the manufacturer of the envelope of Fraser's balloon, was an experienced balloonist who had been flying balloons since 1968, mostly as a sport. He was formerly the Australian national champion. He was not a commercial balloonist. He had flown balloons for some 760 hours. He explained that there were vents controlled by the pilot which enabled the pilot to rotate a balloon either clockwise or anti-clockwise, and which enabled the pilot to deflate the balloon at or near final landing, by allowing the hot air to escape from the envelope. Ascent depended upon air being heated by the burners, and as the air cooled, this allowed the balloon to descend. The longer the time between operating the burners, the more rapid the descent; after a minute, for example, a balloon such as the appellant's could expect to descend at a "high rate." Depending on weather conditions the rate of descent could be expected to be between 500 and 700 feet per minute. At this rate one would expect to "feel wind." Horizontal flight depended upon wind direction, but balloons rarely flew on a straight and level path. When ascending or descending at 'slow' rates, it is difficult to tell whether the balloon is climbing or descending once above 500 to 1000 feet above ground level, unless reference can be made to an instrument called a variometer which is designed to provide a rate of climb or descent for 'minimal' rates. Another instrument, which is apparently required to be carried by balloons pursuant to Air Navigation Order 101.54, is an envelope temperature indicator (or temperature gauge) which indicates the internal surface temperature of the envelope. This instrument is used to enable the pilot to have an indication of the air temperature inside the envelope, so as to assist him to judge when it is necessary to provide more hot air into the balloon to prevent it from descending or ascending more rapidly than he requires. According to Mr Kavenagh, when

balloons are flying in company, it is expected of the pilot of the upper balloon to keep a look-out for the lower balloon "if it is anywhere near another balloon." No evidence was given by this witness as to what distance of separation between balloons an experienced balloonist would regard as 1   near.1	He also said, that, in his experience, it was difficult to assess, without reference to the horizon (and inferentially, without reference to a variometer) once a balloon is "very far off the ground" to know whether the balloon is travelling in, is ascending or descending; and that, unless one knows what the vertical movement is of the balloon one is travelling in, it is difficult to tell whether another balloon a few hundred metres away is ascending or descending. Further, he said (AB 468-69):

"	If I'm looking at a balloon that I know to be stationary, and I'm climbing rapidly, it will give me the impression that it's dropping fast and if I do the reverse, say if another balloon that I'm looking at is falling fast, and I'm climbing, it will give an accelerated image of what's - you know, an accelerated and exaggerated appearance of what's actually happening.

Q:	I want you to - have you had the experience of looking from your balloon onto a balloon below?--­ Yes.

Have you been able to assess what that other balloon was doing?---If - if I'm closing on another balloon or another balloon appears to be closing on me, you just can't tell without knowing your movement relative to the other one. They always appear to be coming up."

In cross-examination, the following exchanges occurred (AB 472):

"Q:	what would you say about a person who is travelling below - travels below another balloon at 300 feet and puts the burners on and shoots up at 1,000 feet per minute, straight underneath, indeed on an angle from behind and underneath into the other balloon above? What do you say about that sort of manoeuvre?---I would say very careless. To climb fast---
Would you say suicidal?---When you know there's

another balloon above you would be a ridiculous thing to do."

Mr Kavenagh also said that large balloons ascend initially very slowly, but once under way, they will accelerate faster than small balloons. He accepted that Fraser's balloon could ascend at a rate of 1,000 feet per minute, but that was likely to be close to its maximum vertical speed. (In other words, Fraser's balloon could be expected to be able to ascend at a maximum rate of a little over eleven miles per hour.) There is no specific evidence as
to what would be a safe speed for a controlled descent, but Kavenagh said he had experienced descents at the rate of 1,000 feet per minute, and it is a reasonable inference that this was a quite rapid rate of descent given that he considered a rate of descent of 700 feet per minute to be a "high" rate of descent. As to the rate of ascent of a fully loaded balloon, such as Fraser's, he said that applying the power of both burners, the balloon would take ten seconds to rise about thirty feet, and thereafter it would take forty-five to fifty seconds to rise a total of 300 feet, by which time its rate of ascent could be expected to be 700 feet per minute (AB 511).

As to the use of the variometers, Mr Kavenagh conceded that whilst in Britain the view was that such an instrument was a luxury and not necessary for safe ballooning, and an experienced pilot would be better able to fly a balloon than an inexperienced pilot without one, he personally found it a useful instrument, and at heights more than a few hundred feet off the ground, believed that he would have difficulty keeping a balloon in straight and level flight (by which he meant with very minimal variations in height) without reference to it. He said also that an altimeter was not of any use except to tell how high one was, and was not safety related in any sense.

As to the difficulty of judging ascent or descent when looking at another balloon, he conceded that if the observer's balloon was moving up and down in a gentle wave

motion, and the observer saw another balloon half a kilometre away, and was watching it relative to the horizon, such an observer would be likely to be able to perceive accurately whether the balloon was moving up or down relative to a second balloon just above it.

Mr Simon Fisher, who tested Fraser when he sought his commercial licence, conceded that he would expect an experienced pilot to have a good sense of whether he was travelling up or down without instruments, but that he would not expect such a pilot to be able to fly as tightly 2,000 feet above the ground without reference to instruments as could be done with reference to them. His evidence was otherwise not of any significance.

The other experts called, all balloonists, were the appellant's brother, John Roger Sanby, Shaun David Darby (an employee of John Sanby), Sven Tetlow and Kenneth Ian Watts, the operator of Aussie Balloons, a business unconnected with the appellant or his brother. None of these witnesses gave any detailed evidence as to what might be expected of a balloonist flying in company with another balloon, except in a general way. All agreed that the upper balloonist should give way to the lower balloon, and that there was a requirement to keep a proper look-out. John Sanby' s evidence was to this effect (AB 522):

"When flying in company, are there any rules about look out?---You just keep a look-out, a - you could say - it sort of depends. Like, if the balloon's sort of fairly far away, well you - you - I mean, you might be more at ease but if it came fairly close and then you have like a
- a look-out all the time."

No attempt was made to explore what he meant by "fairly close." He also agreed that it would be extremely dangerous for a lower balloon to climb if the pilot lost sight of the upper balloon. Mr Darby preferred the view that "generally everyone would keep an eye on each other," but was otherwise unhelpful.  Mr Tetlow said"	if you' re flying in

company with other balloons it's obviously prudent to keep a visual check on - on what they' re doing and where they are." Mr Watts said that if he lost sight of another balloon, the first thing he would do is look to ensure the other balloon was not beneath him. He also agreed that he would not expect a balloonist who was aware that another balloon was above him, but which balloon he could not see, to ascend at a quick rate in those circumstances. There was general agreement that at heights above a few hundred feet it was difficult to tell whether one's balloon was ascending or descending without reference to a variometer, but it is fair to say that most claimed to be able to tell the difference once the rate of ascent or descent was more than minimal, although reference to the variometer was necessary to accurately determine the rate.

The difficulty with this evidence is that it gives insufficient information to enable any easy assessment of the point of time at which an experienced balloonist would be expected to react to avoid a situation where two balloons might come into contact. Nevertheless, certain inferences can be drawn as a matter of common sense based on the evidence. On the basis of Mr Kavenagh' s evidence, it would have taken about a minute for Fraser's fully laden balloon to reach 300 feet vertically, by which time it would have reached a likely rate of ascent of 700 feet per minute. On that basis, if Fraser's balloon was 300 feet below the appellant's balloon when the appellant last saw it, and assuming the appellant's balloon was virtually stationary, the appellant's balloon was potentially in imminent danger if Fraser suddenly ascended with maximum power unless the appellant could see that Fraser's balloon was not on a collision course (if, for example, it was passing in a roughly horizontal plane to his own balloon) or unless he took some other action - either to ascend; or warn Fraser of his position by radio; or both. On the other hand, the evidence of the balloonists was to the general effect that none would expect the lower balloon to ascend at full power if the lower balloon had lost sight of an upper balloon which was within a few hundred feet of it.
Indeed, despite the' give-way'	rule, it is obvious that any

ascent was fraught with danger if the lower balloonist knew that there was a balloon somewhere within a few hundred feet above him and he could not see it, although I do not suggest that the appellant was entitled to assume that no ascent would be likely to be made, given that, even in relatively straight and level flight, a balloon's height might vary, according to John Sanby (AB 523) up and down by as much as "a couple of hundred feet" (although I note that according to Fisher, Fraser when tested was able to maintain straight and level flight "with variations of less than plus or minus fifty feet" (AB 514). Similarly, the appellant's balloon could also be expected to do the same. Indeed, in his record of interview with police, he claimed that his balloon was just starting to descend at "maybe three or thirty feet per minute" on the
wave-like motion of his own "straight and level flight" path, when Fraser's balloon was about 300 feet below and to one side and appeared to be passing underneath him. The appellant maintained that "it was quite normal for a balloon to fly under another one at 300 feet and that he would not classify this separation distance as "close proximity." As there were no regulations or Air Navigation Orders requiring balloons to maintain any prescribed minimum separation, what separation was kept was left to the judgment of the pilots concerned.

The Crown contended that the considerable body of eyewitness evidence to the general effect that Fraser's balloon, whilst in close proximity to, and below the appellant's balloon, suddenly rose in height at a much accelerated speed immediately before the collision, was unbelievable because all of the witnesses were either passengers on the appellant's balloon or passengers on other nearby balloons whose perceptions were likely to be affected by the fact that they were viewing a closing of two objects from a platform that was itself moving either up or down which would tend to enhance or exaggerate the appearance of rapid movement by the lower balloon. The Crown's case was that the appellant's balloon was descending at the relevant time. The Crown also attacked the appellant's version in his record of interview to the police, and sought to persuade the jury that

the appellant simply did not see Fraser's balloon at any relevant time prior to the impact. Alternatively the Crown case was that if the appellant did see Fraser's balloon before the collision, the appellant's consciousness of guilt, as evidenced by his statements in his record of interview, showed that he actually foresaw the possibility of the danger, and that he, as a reasonable balloonist should have and could have taken steps to avoid the collision, or the possibility of collision. This possibility must have been rejected by the jury, in view of the verdicts of not guilty to manslaughter.
Nonetheless the Crown could and did contend in the further alternative, that if the appellant saw Fraser's balloon immediately before the collision, he, as an ordinary balloonist, ought to have foreseen the possibility of the danger, and taken steps to have avoided it.

The jury was therefore left, having rejected manslaughter, with the following possibilities on the Crown case:

the appellant did not keep a proper look-out because he did not see Fraser's balloon at any relevant time before the impact, or alternatively, he saw it too late because he was not keeping an adequate look-out when he ought to have done so;
the appellant did keep a proper look-out but failed to take appropriate evasive action in sufficient time by giving way or by giving a radio warning when he ought to have done so;

whilst the defence case was one of inevitable accident due to the sudden and unexpected rapid upwards movement of Fraser's balloon, i.e. the danger to the life health and safety of Fraser and his passengers was not caused by the appellant, or, if it was caused by the appellant, the appellant's failure to keep a proper look-out or take evasive action was not such that an ordinary experienced balloonist would have foreseen the danger, and not have done what he did.

The absence of instruments in the balloon was not in itself, in my opinion, a factor unless the appellant's balloon was in fact descending at the relevant time at a rate higher than the appellant himself expected. Bearing in mind that the burden of proof is on the Crown to positively establish such a proposition, even assuming that the jury was entitled to disregard the evidence of Prof Joubert and all of the eyewitnesses to the contrary, this could do no more than cast doubt upon the reliability of their opinions or observations; it did not prove that they were wrong, and that the upper balloon must have been descending at a rapid rate, without some other evidence to support it. The Crown sought to establish this by evidence from the passengers in the appellant's balloon as to when the appellant last used his burners before the impact. Only one of the appellant's passengers asserted that the appellant had his burners on at the time immediately before the collision, and the appellant himself did not maintain this in his record of interview to the police. In order to prevent his balloon from descending, it was obviously necessary for the appellant to operate his burners from time to time. The evidence of Mr Kavenagh on this point was as follows (AB 462):

"I'm asking you your opinion based on your experience and your background of what would be the effect on a balloon of the size of an E240 at 2,000 feet off ground level, of not burning up to a minute?---It' s rate of descent would be high.

Well, first- - -?---It would - it would depend on - on the temperature of the day, the amount that it was loaded. It could be, after a minute, it could be as high as 600 feet a minute. But then that would vary from day to day. You know, one day it might be 500, another day it might be 700.

All right. If in a situation such as that where there's no burning for up to a minute and the rotation - a rotation vent is open, releasing hot air, what would be the effect of the - - -?---It would increase the rate of descent."

Counsel for the Crown's question was premised upon "not burning up to a minute," but it is clear that Mr Kavenagh interpreted this to mean' for a minute.'	The reason why the

question was framed in this way was because one of the passengers, Ms Mccosh, had given the following evidence (AB 228):

"How long would this trip have taken overall, do you think?---Up to the collision?

Yes?---10, 15 minutes I think.
You had no difficulty hearing all of these - - -?---No.
- things that he was saying, the features of the landscape he was pointing out?---That' s right.
You say he wasn't burning at that time?---No.

Can you give us any estimate really as to how long the burner was off while he was doing this talking to you?--­ Anything up to a minute I'd say.

The actual collision, I take it from what you say, came as a surprise to you, is that right?---That' s right. We got knocked over.
You just hadn't expected it?---No.

Had Mr Sanby been speaking right up until that time?--­ Yes, I believe so.

Now if we might just pass for a moment - perhaps I should ask you one other question. Up until that time you say he hadn't burnt for a minute or so or whatever your words were.
MR HORE LACEY: No, she did not say that.

MR FLANAGAN: Whatever your words were. What were they, with respect? What did you say?---Up to a minute."

It is clear from this exchange that Ms Mccosh was not saying that the appellant had not operated his burners for a minute; rather what she was really saying is that the maximum time, and it could well have been less, was a minute. There was no other evidence from any of the passengers which attempted to place any estimate of the time which had elapsed. However there was evidence that the appellant was describing the scenery to his passengers just before the collision and that he could not have been heard above the noise of his burners had they been operating; however on a careful reading

of the transcript it is simply not possible to draw any reliable conclusions as to how long the appellant had been speaking from which an inference could be safely drawn as to what time had passed before he last used his burners. There was evidence from another passenger, Mr Weare (AB 130), that the appellant, once he had announced that he had reached his maximum permissible height, rotated the balloon to enable the passengers on both sides of the basket to see features on the ground he was explaining to them, and there is also evidence that this would cause the balloon to descend. However this evidence does not really assist as it is not possible to infer precisely when this occurred prior to the collision, what distance the balloon descended, and whether any descent had stopped prior to the collision. Further, if the appellant's balloon had rotated immediately prior to the collision, one would expect that the passengers on both sides of the basket would have seen Fraser's balloon immediately below, whereas the passengers who did see Fraser's balloon at this stage were on one side of the basket only. There is evidence from another passenger, Mr Moore, that Fraser's balloon was higher than the appellant's balloon, and that it went below the appellant's balloon just before the appellant began to point out the sights (AB 110); (however none of the other passengers or eyewitnesses, including the appellant, thought that Fraser's balloon was ever higher than the appellant's, and I do not think Mr Moore' s account is likely to be correct.) In my opinion, it would not be safe to conclude on this evidence that the appellant's balloon was descending at a rate higher than the appellant had stated to the police; in other words, I consider that the Crown did not establish beyond reasonable doubt that the appellant's balloon was not travelling in a wave like motion, with shallow descents at a slow rate of up to thirty feet per minute, immediately before the impact.

This, in my opinion, was an "intermediate fact," to use the expression used by the High Court in Shepherd v The Queen (1990) 170 CLR 573, which the Crown had to establish beyond reasonable doubt as an indispensable basis for an inference of guilt based upon the failure of the appellant to

have had the prescribed instruments upon his balloon, in particular, the variometer and temperature gauge. In my view, the Crown did not establish this beyond reasonable doubt and it was therefore simply not open for the jury to conclude beyond reasonable doubt that the absence of this equipment, carried any danger to Fraser and his passengers.

I also consider that it was not reasonably open to the jury to conclude beyond reasonable doubt that the appellant saw Fraser's balloon on a collision path with his own, at a time when he had any opportunity to take effective evasive action. Such a conclusion could not have been reached from the appellant's version as to the relative courses and positions of the balloons when he claimed to have last seen Fraser's balloon. There was no other evidence to support such a conclusion other than the inferences to be drawn from a consciousness of guilt evidenced by the appellant's records of interview and flight to Zimbabwe, which the jury must have been unable to draw given the not guilty verdicts to the manslaughter charges. This leaves two possible bases for conviction. One basis upon which the conviction might be supported is that the appellant failed to keep a proper look­ out. I note that this was apparently the view of the learned trial judge, when, in his directions to the jury, his Honour said (AB 811):

"... as must already have been apparent to you, ladies and gentlemen of the jury, the view which seems to me to be quite overwhelming in this case, that this is a case of proper look-out or not, whether the Crown have proved this man kept a proper look-out or not, and everything really seems to be subservient to that."

Another possible basis for the jury's verdict might have been that the appellant ought to have given a warning to Fraser over the radio when he saw Fraser's balloon some 300 feet below (assuming the jury was not prepared to find that the appellant did not see the lower balloon at any relevant time at all). Of course, the fact that the appellant was under the obligation to give way to Fraser's balloon was obviously relevant to both of these questions. If, on the other hand,

the collision was caused by a sudden and rapid rising of the lower balloon of such a nature as to have been a totally and unexpected thing to do, and without which there was no imminent danger of collision, and if this occurred at a time when, had the appellant seen this manoeuvre, there was nothing he could have done to have avoided the collision, it is obvious that nothing the appellant did, or failed to do, caused any danger to the occupants of Fraser's balloon; and, of course, this being a case largely dependant upon circumstantial evidence, if there was evidence to support a reasonable hypothesis consistent with the appellant's innocence, the burden was on the Crown to prove otherwise beyond reasonable doubt; and if the Crown has failed to do so, the verdict will be set aside as unsafe and unsatisfactory: see Volz v The Queen (1990) 100 FLR 393.

In my opinion the totality of the evidence was overwhelming that the lower balloon may well have suddenly and rapidly risen in a totally unexpected way. The witnesses who saw the lower balloon immediately before the impact fell into two broad categories. Firstly, a number of the passengers in the appellant's balloon saw the lower balloon immediately before the impact. These were Rohan Iverson, Geoffrey Stevenson, Joanne Konyk and Dr Yasuharu Nakashima. Secondly, both balloons were seen by the following other witnesses shortly before the collision: Dr Irene Fiedler, Michael Croft, Sarah McCarthy, and John Sanby. Rohan Iverson said that he had watched the lower balloon fly underneath and that it looked like it was going to go past, but when it got to about half of it underneath the appellant's balloon, it started to come up towards him. He was unable to recall at the time of the trial if the lower balloon came up fast or slowly, but on the day of the collision he made a statement to the police in which he stated that "the lower balloon came up very fast from under us." He was eight years of age at the time of the collision.
Geoffrey Stevenson said the lower balloon was very close when he saw it and he could just see the side of it. "It was coming up behind," rising from underneath. In cross-examination he also agreed that in his statutory declaration to the police

given shortly after the accident he had sworn that he "saw the second balloon coming up from below us, off to one corner, coming up very fast and I knew there was going to be a collision and it was too late to avoid it," and he agreed with the cross-examiner that this was still correct (AB 161-62).
Joanne Konyk thought the lower balloon had risen up very quickly, but could not say for sure if it was the lower balloon rising or the appellant's balloon falling (AB 898). The collision occurred before she had time to do anything. She also agreed that at the time she made her statement to the police shortly after the accident that the lower balloon appeared to rise quite fast, but that since speaking to counsel for the prosecution, she was now uncertain about this. Dr Nakashima said that when he looked over the side of the basket he saw that Fraser's balloon was no more than fifty metres directly below, and he told another passenger (a boy with him) to grip a rope in the basket because he thought the balloons may collide. He also thought that the lower balloon neared the appellant's balloon at a very high speed.

I agree that none of this evidence taken separately is very convincing evidence that the lower balloon had risen rapidly. All of these witnesses were looking down below and it is quite possible, if the appellant's balloon was descending, that the appearance that the lower balloon was rising rapidly could be mistaken. However, as I have already observed, there is no basis for concluding that the appellant's balloon was descending at more than a relatively gentle rate, and consequently it is unlikely that these witness'	brief perceptions were all wrong. Be that as it may, whatever doubts one may have about this evidence does not disprove the possibility that indeed it was the lower balloon which rose quite rapidly. Moreover the observations of the other witnesses, who were looking at the two balloons side on, tended to support, rather than deny, the perceptions of the appellant's passengers. Dr Fiedler, who was a passenger in John Sanby' s balloon at the time, said that the lower balloon ''came quite suddenly up" from one side of the other balloon,
i.e. not vertically, but at an angle, before touching the

basket of the higher balloon. She estimated that she was between 300 to 700 metres away, and believed John Sanby' s balloon was in level flight. Mr Crofts, who was a passenger in Tetlow' s balloon, was watching the sunrise and the two balloons were directly in his line of sight to the horizon. He said that the balloons "were getting pretty close to one another, then one of them rose really rapidly, bumped the basket of the other balloon ... (AB 168).	t this stage the two balloons were no more than half a mile away from him, and at a lower altitude than Tetlow' s balloon by a distance which he estimated to be 500 feet. Mr Crofts also indicated that the lower balloon rose at an angle to the appellant's balloon and that both balloons were almost level with the horizon when he was observing them. Ms McCarthy, who was a passenger on  Tetlow' s balloon, also said that the lower balloon rose up "all of a sudden" and caught the upper balloon's basket. Prior to this she thought both balloons had been rising together at a "level speed." John Sanby did not see the two balloons before they collided although he did see them just after the impact. When he last saw them, before the impact, Fraser's balloon was about 600-700 feet below the appellant's; this was about 1½ to 2 minutes before he saw them in contact with each other. Whatever doubts may have existed as to the reliability of the observations of the appellant's passengers, there could be little doubt that the lower balloon had risen very suddenly and rapidly just before the collision based on the observations of Dr Fiedler, Mr Crofts and Ms McCarthy. Mr Crofts, in particular, had the benefit of seeing both balloons level with the horizon and in any event, given that these observers were a considerable distance away from the two balloons any distortion of relative movement due to their own balloons'	movement would have been minimal. No witness was called who said that the upper balloon descended on the lower balloon, rapidly or otherwise, or who said that the lower balloon rose at a slow rate, or who said that both balloons moved towards each other. There was ample evidence from other balloonists, to which I have already referred, from which the inference could be drawn that such a manoeuvre by the lower balloon would not be expected by the appellant. There was no

evidence from any of the eyewitnesses that, prior to this happening, they had anticipated a possibility of a collision between the two balloons. Even if the jury rejected the appellant's account to the police, it was not reasonably open to the jury to have been satisfied beyond reasonable doubt that Fraser's balloon had not suddenly, unexpectedly, and rapidly risen into the appellant's balloon. If the jury accepted the substance of the appellant's account in his record of interview, which was consistent with the eyewitnesses'	accounts, as well as what he had told Fraser's brother and Miss Pedley on the day of the accident as to the separation distance between the two balloons about thirty seconds before the impact, the jury could not have been satisfied beyond reasonable doubt that the appellant had any cause to anticipate any imminent danger of collision. Of course, the separation between the two balloons, before Fraser's balloon rose rapidly, given by the appellant, was clearly only his estimate. Nevertheless there was no evidence upon which the jury could have been satisfied that, shortly before Fraser's balloon rose rapidly, there was any reason why a balloonist in his position ought to have clearly foreseen the danger of collision if he did not keep the lower balloon under constant watch or take some other evasive action. None of the passengers in the appellant's balloon expressed any feelings of alarm until Fraser's balloon rose rapidly. Nor did Mr Tetlow, an experienced balloonist, on whose account the two balloons were "close together" when he last saw them. There was no evidence from Mr Kavenagh or the other balloonists as to the circumstances under which such a course might be desirable, except in general terms that there was a duty to keep a proper look-out and this involved constant checking of the position of other balloons from time to time. No-one suggested that the appellant was required to look at Fraser's balloon at all times; indeed it seems probable that this would not be possible if he was to attend to the proper flying of the balloon as well as speak to his passengers to point out features on the ground to them. There was no co-pilot or observer; no criticism was levelled at the appellant for this, although obviously the lack of an observer required more

vigilance by the pilot. Given that balloons are very slow moving, safe separation distances can be considerably closer than, say, for fixed wing aircraft. The question of when the appellant ought to have taken some action to have avoided the possible danger of collision depended upon an assessment of the relative speeds of the balloons, their manoeuvrability, direction of travel and proximity to each other. As with all moving objects, this is a question of judgment, in the absence of criteria fixed by law, given that there are no instruments to measure all of these factors. Unlike motor vehicle accidents, where juries can bring to bear their own experiences as drivers to make similar assessments, and where there are often accurate measurements available from the scene, in this case one is left trying to assess these matters by reference to inferences to be drawn from the observations of witnesses whose estimates of speed, position, direction and proximity are necessarily imprecise and vague. Nor is it permissible to start from the proposition that, because a collision occurred, there must have been any negligence on the appellant's part. As Martin J observed in Volz v The Queen, supra, at 404, "the doctrine of res ipsa loquitur has no place in the criminal law." No attempt was made by the Crown to prove through the expert opinions of other experienced balloonists, that no ordinary competent experienced commercial pilot in the position of the appellant would have failed to have taken steps (for example, by causing his balloon to rise) if they had been in the appellant's position and had seen Fraser's balloon apparently passing harmlessly 300 feet below them.

However, it was submitted by the Crown that, for various reasons, the jury was entitled to disregard the appellant's account as to when he last saw Fraser's balloon. In my opinion this submission is correct; and after having made my own assessment of the appellant's account, I think it would have been open to the jury to have rejected the appellant's account on this issue. Consequently, the verdict might have rested upon a finding that the appellant did not, at any relevant time, see Fraser's balloon at all. But such a

finding, whilst an intermediate step in the reasoning process before a finding of guilty could be reached, was not in itself enough. It still had to be shown that this failure caused the danger to Fraser and his passengers. The only relevant danger was the danger of the collision. The Crown still had to show that, had he kept a proper look-out, the appellant could have avoided the danger and an ordinary person would have done so. In considering these questions, the same essential problem emerges. At what moment of time ought the appellant, by keeping a proper look-out, have clearly foreseen the danger?
In the absence of expert evidence on this point, there is simply nothing to go on. It was suggested by the Crown that the appellant himself acknowledged that, when he saw the lower balloon 300 feet away, he could have applied his burners, and, within seven or eight seconds his balloon would have risen (AB 1076). On the evidence of Mr Kavenagh, had this occurred, the appellant's balloon would have risen very slowly (if both burners had been fully applied) after a similar period of time. Even if both balloons were rising, there was still a reasonable possibility that the lower balloon would have proceeded to rise so much faster than the appellant's that an impact at a closing speed of more than fifty feet per minute (sufficient to puncture the lower balloon) could have occurred. It might be suggested that at the same time, a radio warning to the lower balloon could have allowed Fraser to release hot air from his balloon by operating the relevant vents, but even if this had occurred it was still reasonably possible that the collision could not have and ought not to have been avoided by the appellant as a reasonably competent experienced balloonist given the imprecise nature of the evidence concerning time, distance and speed. In the end result I consider that the jury ought to have had a reasonable doubt as to the appellant's guilt, that the finding of guilty on count fourteen is unsafe and unsatisfactory, and I agree with Martin CJ for the reasons he gives that this Court should therefore quash the conviction and direct a judgment and verdict of acquittal to be entered (Criminal Code, s411(3)).

It is therefore not strictly necessary to refer to

the other grounds of appeal debated before us. Nevertheless, as an attack was made on the fairness of the Director's final address to the jury (even though this was not a ground of appeal) I think I should say that I was not convinced that the Director's address was inflammatory, unbalanced, or improper in any other way, despite the use of heavy sarcasm at times during his address, and I would not have allowed the appeal on this ground. In fairness to the argument put to the Court by counsel for the appellant, I should record that he did not attempt to persuade us otherwise, but rather this submission was directed towards persuading us that the verdict was unsafe and unsatisfactory. This was an unusual approach to the case, and I do not express criticism of it, but merely observe that, in the end result, I found that particular submission unhelpful.