SUPREME COURT OF QUEENSLAND

CITATION:	R v Tramsek [2025] QCA 98	
PARTIES:	R
v
TRAMSEK, Jason Bronco
(appellant)	
FILE NO/S:	CA No 199 of 2024
DC No 139 of 2023	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction & Sentence	
ORIGINATING COURT:	District Court at Mount Isa – Date of Conviction: 23 August 2024; Date of Sentence: 26 August 2024 (Jarro DCJ)	
DELIVERED ON:	10 June 2025	
DELIVERED AT:	Brisbane 	
HEARING DATE:	9 May 2025	
JUDGES:	Bowskill CJ, Bond JA and Callaghan J	
ORDERS:	1.	Appeal allowed.
2.	Verdict set aside.
3.	Conviction quashed.
4.	A new trial is ordered.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was found guilty of dangerous operation of a vehicle causing death – where the learned trial judge gave a direction pursuant to section 23(1)(b) of the Criminal Code but declined to give a direction pursuant to section 23(1)(a) – where the appellant gave evidence he “hit a bump” on the road – where the learned trial judge was not satisfied any act had occurred “independently of the defendant’s will” – whether the learned trial judge erred in failing to direct the jury in accordance with section 23(1)(a) of the Criminal Code
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – MISDIRECTION AND NON-DIRECTION – where there was evidence concerning the appellant’s voluntary intoxication – where intoxication was not particularised by the Crown – where the defence sought to exclude all such evidence – where the learned trial judge ruled intoxication was a circumstance relevant to whether the appellant operated the vehicle dangerously – whether the admission of such evidence of the appellant’s voluntary intoxication was a wrong decision on a question of law – whether the learned trial judge’s direction as to the use of the evidence concerning the appellant’s voluntary intoxication occasioned a miscarriage of justice – whether the nature of the miscarriage of justice precluded the operation of the proviso
Criminal Code (Qld), s 23(1)(a), s 23(1)(b), s 328A(4)(a)
Brawn v The King [2025] HCA 20, applied
Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14, cited
Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31, applied
R v Anna Rowan (a pseudonym) (2024) 278 CLR 470; [2024] HCA 9, applied
R v Clark [2014] QCA 99, cited
R v Juraszko [1967] Qd R 128, considered
R v ZT (2025) 99 ALJR 676; [2025] HCA 9, applied
Volz v The Queen (1990) 100 FLR 393; [1990] NTCCA 1, considered
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, applied
Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6, applied	
COUNSEL:	D A Marley for the appellant
M B Lehane for the respondent	
SOLICITORS:	Fisher Dore Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	BOWSKILL CJ:  I agree with Callaghan J.
[2]	BOND JA:  I agree with the reasons for judgment of Callaghan J and with the orders proposed by his Honour.
[3]	CALLAGHAN J:  The appellant was found guilty by a jury of dangerous operation of a vehicle causing death.  He was sentenced to imprisonment for three years, suspended after 18 months for an operational period of three years.
[4]	Originally this conviction was appealed only on:
(a)	Ground 1: The failure to direct the jury in accordance with s 23(1)(a) of the Criminal Code was a wrong decision on a question of law; and
(b)	Ground 2: The admission of evidence of the appellant’s voluntary intoxication was a wrong decision on a question of law.
[5]	During the hearing of the appeal, and without objection from the respondent, the Court granted leave for the appellant to add this ground:
Ground 2(a): “[A] miscarriage of justice was occasioned by the trial judge’s direction as to the use that could be made of the evidence concerning the appellant’s voluntary intoxication.”
[6]	The appeal should succeed on that ground.  It is therefore unnecessary to consider an application for leave to appeal against sentence and it should be dismissed.
Fatality on a camping trip
[7]	In 2022, the appellant was part of a team that was working on a construction job in Normanton.  After finishing work at lunch time on Saturday 26 February, he and some other members of the team drove to a campsite at Leichardt Falls.  The appellant’s colleagues included Mr Jamnicky, Mr Ainsworth and Mr Bee.
[8]	After setting up camp (around 2.30 pm) all members of the group began drinking, then drove to a point near the bottom of a waterfall where they set up some yabby pots.  They went for a swim, returned to the campsite, sat around the fire and did “the usual stuff ... you do when you’re camping.”
[9]	Over the ensuing hours the appellant, by his own reckoning, drank four or five XXXX Gold beers and one and a half 700 ml bottles of Bailey’s.
[10]	Late in the evening it was decided to check the yabby pots.  At this point, when the appellant admitted that he was “definitely not sober”, he drove his single cab Toyota Land Cruiser utility from the camp site to the waterfall.  It was a dirt road and there was no artificial light.
[11]	On the way back, Mr Jamnicky sat in the only available passenger seat.  Mr Bee, Mr Ainsworth and a dog sat on the rear tray, which was flat, had no sides and no restraints.  Soon after commencing this return trip, they were both thrown from the tray.  Mr Bee suffered a severe head injury in the fall.
[12]	The appellant called 000 at 11.55 pm.  At 1.25 am a nurse from Burketown arrived in an ambulance.  Mr Bee was breathing at that point but after about 10 minutes went into cardiac arrest.  At 1.50 am the RFDS team arrived and assisted with the resuscitation efforts, which ceased at 2.10 am when Mr Bee was pronounced dead.
[13]	After learning this, the appellant, who was “stressing out”, went for a “quick … step out the bush”.  He called his girlfriend and another friend from the camp before returning to the scene, where he spoke to the police at 5.46 am.
The fall from the tray
[14]	The appellant neither gave nor called evidence, but there were five sources of evidence which account for the fatal fall.
[15]	The evidence-in-chief of Mr Jamnicky (front passenger seat) included these exchanges:
“Now, tell me about the movement of the vehicle?‑‑‑Well, we drove off quite slowly and we got on the dirt. And then, yeah, when Jason accelerated, that’s when they come off. Yeah.
So you say “accelerated”. Can - - -?‑‑‑Yeah.
- - - you describe that?‑‑‑He just – we were going slow, and he just went a bit fast. So he accelerated, and then the car, like, let – got a bit loose, and then they fe – they’d obviously come off at that point.
So you say he went a bit fast. Like, what - - -?‑‑‑He accelerated, yeah, yeah - - -
Yep?‑‑‑ - - - a bit faster than we were going. We were going really slow on the causeway.
Yep?‑‑‑Yeah.
And did you see him do anything else while - - -?‑‑‑I didn’t.
- - - accelerating?‑‑‑No, I didn’t notice. I was looking straight ahead, but - - -
Yep?‑‑‑Yeah, I wasn’t - - -
And when the – when he’s accelerated, what has happened to the vehicle?‑‑‑The vehicle’s moved a little bit, like, the back end. And that’s – yeah.
Yep. Can you describe that movement?‑‑‑Yeah, the back went out a bit, like, yeah - - -
Yeah?‑‑‑ - - - lost traction or whatever.
Yep?‑‑‑Yeah [indistinct]
How do you know it lost traction?‑‑‑That’s what I’m guessing. If that happens, that’s what usually - - -
Okay?‑‑‑ - - - yeah, would – would happen under that circumstance.
…
No. Were there on – any obstacles in front of the car when the car accelerated?‑‑‑I didn’t see any obstacles, no [indistinct] dirt road…
…
When did it back off? When did the acceleration back off?‑‑‑Straight after it slid out. Yeah.
Okay?‑‑‑Then we’d slowed down. He’d said that they were – they’d come off. And that’s – yeah.
Who said that?‑‑‑Jason. Yeah.
All right?‑‑‑Yeah.”
[16]	Mr Ainsworth’s evidence-in-chief included:
“Can you tell me how that happened?‑‑‑I remember we were going from one spot to another. I can’t remember which direction or anything. It was dark, and obviously I was intoxicated. And I’m not sure whether it was – what it was or anything, whether it was a bump or – but I just remember – all I remember was the ute flicked to the side a little bit, just the tail end, and then both myself and Andrew came out the back.
…
- - - off the back of the car?‑‑‑ - - - I don’t remember what happened exactly, but I just remember we were – we’d end up coming out. I don’t remember exactly wha – how we came out, but I don’t know if it was a bump or corrugation, pothole. Could’ve been – I don’t know.
Yeah. So you have no idea?‑‑‑No idea.”
[17]	The appellant’s version of events came in two parts.  The 000 call, made at 11.55 pm, contained these exchanges:
“OPERATOR: Jason, tell me exactly what's happened.
TRAMSEK: So two of the guys have just [INDISTINCT] two of the, two of me mates have just come off the back the ute.
OPERATOR: Okay. ---
…
OPERATOR: Yeah, alright. How fast was the vehicle moving when they came off the back of the tray?
TRAMSEK: Oh, second gear. So probably--
OPERATOR: Six--
TRAMSEK: Forty?
OPERATOR: Okay, yep.
TRAMSEK: Yeah, it was just, they hit, we hit a bump and it just threw 'em, threw 'em off.”
[18]	At 5.46 am the appellant and police officer had a conversation that included:
“SCON KEEMAN: [INDISTINCT]--
TRAMSEK: Yeah, we was on our way back plodding along. And um-
SCON KEEMAN: Sorry, you what?
TRAMSEK: We were just on our way back, plodding along.
SCON KEEMAN: Yep.
TRAMSEK: Like taking it easy. And I remember t-, um, Wes, he just goes, feed it. And I just give it a bit of a like a first to second.
SCON KEEMAN: Yep.
TRAMSEK: Just a little bit. Yeah, and, they both come off. And [INDISTINCT]—
…
SCON KEEMAN: Of what's happened. So you've said you've been coming this direction, traveling pretty slow, and Wes has called out, hit it. So you've given it a bit of--
TRAMSEK: Yeah--
SCON KEEMAN: Power and.
TRAMSEK: [INDISTINCT] it was
SCON KEEMAN: So when you gave it a bit power, did, like did you lose control or--
TRAMSEK: Nuh, not lose control. Just sorta stepped out sideways.
SCON KEEMAN: Yep.
TRAMSEK: And that was it.
SCON KEEMAN: Okay.
TRAMSEK: And then in my, in my mirror I seen, I need that Wes come off.
SCON KEEMAN: Oh, okay.
…
SCON KEEMAN: Oh, okay.
TRAMSEK: But it wasn't even, yeah [INDISTINCT] it wasn't that quick, it was just second gear. So forty, forty or fifty K.
SCON KEEMAN: So mate, just looking back there along the road. Would these be your tyre marks here, do you think? Would that make sense--
TRAMSEK: Ah, yeah---
SCON KEEMAN: To you---
TRAMSEK: They would be---
SCON KEEMAN: Yeah?
TRAMSEK: Yep.
[S]CON STEVENS: Yeah--
SCON KEEMAN: Okay, alright.
[S]CON STEVENS: And that's where you've s-, kicked off when he's told ya? Obviously--
TRAMSEK: Yeah, when he said, yeah, well.
[S]CON STEVENS: [INDISTINCT]--
TRAMSEK: [INDISTINCT]--
[S]CON STEVENS: Yeah.
TRAMSEK: It was like, it was no-, nothing aggressive. It was like a.
SCON KEEMAN: Yep.
[S]CON STEVENS: Yep--
TRAMSEK: A slow roll of the accelerator and.
SCON KEEMAN: Um--
TRAMSEK: I, I know Joel was saying something about a bump and he said yeah it flicked us, it just flicked us off.” 
Dashcam recordings
[19]	Each of these four versions suffered from the limitations inherent in the testimony of eyewitnesses to a fast moving and traumatic event.  All three men had been drinking for a sustained period.  The evidence of Mr Jamnicky and Mr Ainsworth was also affected by the two and a half years that had passed between the incident and the trial.
[20]	No such limitations attached to the fifth source.  Video recordings were made by the dashcams on the appellant’s vehicle.
[21]	On the front facing dashcam:
(a)	The vehicle is initially positioned on the left hand side of a dirt road.  A voice can be heard stating “Oi you young cunts! Hang on and hold me dog” and “Yo, Wes, hang on, and hang [on to] that dog”.  The vehicle begins accelerating slowly.
(b)	As the vehicle is speeding up and is shifted into second gear, it accelerates rapidly causing the rear of the vehicle to oversteer, lose traction on the dirt road and ‘fishtail’ to the left of the road, sliding suddenly and sharply.
(c)	After a series of abrupt directional changes, the appellant regains control of the vehicle and voices can be heard stating “ohhh” and “did someone go off?”.
(d)	Within three seconds, the appellant gradually brings the vehicle to a stop and starts reversing on the dirt road.  Voices can be heard stating “[did] someone go off”, “I heard somethin” and “yeah, it was a bloke”.
[22]	On the rear facing dashcam:
(a)	A man can be seen sitting on a swag positioned on the tray of the vehicle.  There is a dog positioned to his right.
(b)	The vehicle again can be seen initially accelerating slowly.
(c)	As the vehicle begins accelerating rapidly and begins abruptly changing direction, another man can be seen falling and crashing into the man and dog positioned on the edge of the tray.  The two men and the dog are then seen falling off the back of the vehicle and the same voices can be heard stating “ohhh” and “did someone go off?”.
(d)	Within three seconds, the appellant gradually brings the vehicle to a stop and starts reversing on the dirt road.  Voices can be heard stating “[did] someone go off”, “I heard somethin” and “yeah, it was a bloke”.
[23]	The recordings are direct evidence unaffected by the reliability issues mentioned above (at [19]), but they have other limitations.  They are two dimensional images gathered from a fixed vantage point and the condition of light was poor.  It is nonetheless worth noting some things which are not recorded:  
(a)	no image suggests any vertical movement of the vehicle relative to the road, such as an “up and down” motion of the kind that might suggest undulation;
(b)	no image recorded by the front facing dashcam suggests the existence of any such undulation; and
(c)	nothing said by the appellant – nor by anyone else – draws attention to the existence of any irregularity on the road.
Particulars
[24]	In his opening address, the Crown prosecutor particularised the charge by averring that:
(a)	“The defendant drove dangerously by any one or more of the following:
(i)	Driving with unrestrained passengers on the rear tray.
(ii)	Accelerating with unrestrained passengers on the rear tray.
(iii)	Deliberately changing direction under acceleration with unrestrained passengers on the rear tray.
(b)	… the defendant’s dangerous driving was a substantial or significant cause of Andrew Bee’s death.”
[25]	Notably, the indictment did not include a circumstance of aggravation referable in any way to the consumption of alcohol.  Nor was the fact that the appellant was “definitely not sober” a particular of the dangerous driving.
Dangerous operation - or accident?
[26]	The trial judge instructed the jury as to the application of the second limb of s 23 of the Criminal Code  on the basis that the relevant “event” was Mr Bee’s death.
[27]	The appellant’s counsel requested the trial judge to instruct the jury also about the terms of s 23(1)(a).  This request had the appearance of afterthought, but was supported by reference to R v Clark.  In that case a vehicle “aquaplaned” after its wheels came into contact with pooled water on the road surface.  The possibility was allowed that the “direction of travel taken and the resultant impact … occurred independently of the exercise of (the driver’s) will.”
[28]	His Honour declined to give the requested direction on the basis that he was not satisfied that any act had occurred “independently of the defendant’s will.”
[29]	The appellant submits that there was such an “act” which followed a wheel hitting a “bump”, “corrugation” or “pothole” on the road surface, with the consequence that the vehicle became uncontrollable.
[30]	In cases of this nature it is always necessary to consider the observations of the High Court in Jiminez v The Queen which suggest that “voluntariness” is embedded in the notion of “driving.”  In any event this jury did not receive any instruction that might have absolved the appellant by reason of the fact that he had, by reason of some condition of the road, been deprived of control of his vehicle, such that the driving which caused the fall was not, for the purposes of the criminal law, his “act”.
[31]	Whether or not there was a requirement for such a direction depended on whether he could discharge an evidential onus.  Relevant principles were considered in R v Anna Rowan (a pseudonym).  The accused bears an evidential burden to raise a defence if it is raised.  The prosecution bears the legal burden of proving beyond reasonable doubt that it is inapplicable.  The evidential burden will be satisfied if there is:
“… ‘evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived’. This test can be expressed in positive terms as requiring that the accused identify some basis in the evidence that raises a reasonable possibility that each of the elements of the defence exists.”
[32]	The defence therefore should have been left – or at least some direction covering the issue of voluntariness should have been given – if there was any evidence pointing to a reasonable possibility that the appellant lost control of the vehicle by reason of the road’s condition.
[33]	There was not.
[34]	Mr Jamnicky’s evidence (see above at [15]) did not raise any such possibility.
[35]	Mr Ainsworth by his own reckoning, had “no idea” what had happened.  The appellant did assert that Mr Ainsworth had said something about “a bump” but as noted, Mr Ainsworth did not suggest any such thing.
[36]	The appellant did say (see [17] above) that the car “hit a bump” which just “threw ‘em off”, but that must be contextualised.  Importantly, he insisted (see [17] above) that he did “not lose control”.  He did not describe experiencing any sensation which might have indicated that the condition of the road caused him to do so.
[37]	The dashcam footage shows what happened.  The men on the tray fall because of the way in which the vehicle was being driven – that is, at a low speed, but with rapid acceleration and a short series of abrupt directional changes.
[38]	The signal to the others that they should “hang on” is an indication that the subsequent driving, which commenced almost simultaneously, was a willed act.  Nothing said by the appellant nor by anyone else indicated any issue with the road surface.  Nor was any such possibility revealed by an inspection of the tracks left by the appellant’s vehicle.
[39]	In sum, there was no evidence capable of demonstrating any reasonable possibility that, even if there had been some type of unobserved and unobservable “bump” in the road, the vehicle was not being driven, at the functional moment, in response to the willed acts of the appellant.
[40]	No error has been demonstrated and this ground must be dismissed.
Alcohol
[41]	In addition to the appellant’s own admissions (see paragraph [16] above), both Mr Jamnicky and Mr Ainsworth gave evidence that they had observed him drinking through the course of the afternoon.
[42]	The appellant’s counsel sought to exclude all such evidence.  It was submitted to be irrelevant.  He pointed out that the evidence was imprecise, the circumstance of aggravation was not averred, and it was no part of the Crown’s case that the appellant’s driving was dangerous by reason of intoxication.  That much was revealed by the particulars which made no reference to any such concept.
[43]	The Crown allowed all of that to be so, but maintained the evidence was admissible on the basis that:
“His admission that he was definitely not sober suggests that his judgment was impaired, ---” 
[44]	That point was valid.  However, the prosecutor went on:
“--- which is directly relevant to understanding why he chose to drive in a dangerous manner.
Now, I appreciate that it’s an objective test for the jury to consider, the manner of driving, but in circumstances where the defence might be later hinging on accident or later introducing evidence as to this being independent of his decision-making, then this evidence becomes even more relevant to understanding not only his reliability and credibility of the statements that he might make about that time, but that his alcohol consumption explains why he might have disregarded such obvious risks – driving with two people without any restraint on a flat tray on an unsealed road ---
… So admissions about his drinking and level of intoxication explain why he disregarded such obvious risks. And the jury are entitled to know the complete context in which he made those poor decisions on that night.
The probative value of this evidence outweighs any potential prejudice. It’s not led to portray the defendant in a negative way. It’s not about portraying him as someone who would drink and drive. But it’s crucial to understanding his behaviour and the resulting dangerous driving. And, of course, any risk of its misuse by the jury can be mitigated by directions, if necessary, about how to properly consider this evidence. ---
… The Crown relies on the particularised acts as being what was dangerous and the Crown submits that the evidence is relevant to understanding his state of mind and the context in which he decided to drive, and whether that affected his judgment. That’s a matter that the jury can relevantly take into account.”
[45]	The learned trial judge dismissed the objection.  He ruled that the consumption of alcohol:
“… is a circumstance relevant to the issue as to whether the defendant operated the vehicle dangerously, which the jury should have an assessment of all of the circumstances and not just an artificial, or isolated, view of the evidence and that informs their assessment as to whether the offence is to be made out on the Crown case, that is, whether he operated a vehicle dangerously, such that the jury are permitted to have, and should have, regard to all of the circumstances. So that evidence can remain in.”
[46]	When addressing the jury, the Crown prosecutor said:
“The prosecution doesn’t rely and doesn’t ask you to consider that intoxication statements or drinking statements as him being adversely impaired or affected when driving. More so it’s part of the context of the day. It’s also relevant to perhaps, you might think, his willingness to engage in poor decision-making and reckless behaviour at that time. There’s no evidence that alcohol itself played a part in the operation of the vehicle and the way it drove, or that he was adversely affected by it in that sense. But having a few drinks, in that sense it’s relevant to understanding perhaps his willingness to take those obvious risks and disregarding the safety for others.”
[47]	Taking his cue from the Crown prosecutor, defence counsel in his closing address insisted that the evidence of intoxication was a “red herring”.  He reminded the jury:
“Importantly, and having regard to what you’ll be directed about, the definition of operating a vehicle, the defendant’s intoxication is not relied on by the prosecution as being a circumstance that contributed to his dangerousness.”
[48]	Given the way in which the case had been run, counsel was entitled to make this submission and no issue was taken with it.  However, in his summing up the learned trial judge directed the jury that:
“If the defendant was adversely affected by alcohol, that fact is a circumstance relevant to the issue as to whether the defendant operated the vehicle dangerously.”
The effect of the particulars
[49]	Misconceptions attended the point of admission for this evidence.  The Crown prosecutor appreciated, correctly, that the test to be applied was an objective one.  However, he went on to insist that this evidence was relevant to explain “why” the appellant disregarded obvious risks, his “willingness” to take risks and his “state of mind”.
[50]	The Crown did not need to prove those things.  None of them was relevant to the application of an objective test.  The offence charged contains no element such as intention or recklessness.
[51]	It is true that, when ruling on admissibility, the trial judge did not adopt the reasoning of the prosecutor, holding instead that the evidence was relevant to “whether the defendant operated the vehicle dangerously”.  The difficulty is that at no stage was it explained how this was so – nor could it have been, given the particulars provided.
[52]	Every case must be particularised according to its circumstances and some special considerations may apply to cases of dangerous operation.  It may sometimes be the case that a jury is not restricted to the features of operation on which the Crown relies.  The difficulty in this case arises because of the explicit way in which the Crown not only isolated features of the appellant’s driving on which it relied, but also identified intoxication as a feature on which it did not rely.  That meant the appellant stood trial on a discrete basis.  Evidence about alcohol was not relevant to that case on the basis suggested by the Crown.  It might have been relevant and admissible if the case was particularised differently, or even on another basis – such as its effect in an assessment of the appellant’s reliability.  For these reasons, it is inapt to allow the appeal on Ground 2 as drafted, and it should be dismissed.  However, once it was admitted, the presence of this evidence lurked until the point when it caused the mischief which is the focus of Ground 2(a).
[53]	In another trial, the directions given by the trial judge would have been unremarkable.  But they were incongruent in the circumstances of this one.  The Crown had confined its case of “operation” to those matters that were identified in the particulars.  In this way the case bears some resemblance to Volz v The Queen, where the Crown “limited the issues… by the way it…. presented its case.”  Here, the case had not only been limited but a conspicuous feature of the evidence expressly had been disavowed as a basis for a conviction.  It was unfair then to invite the jury in effect to ignore the Crown’s position and go on to consider, as relevant to the issue of dangerous “operation”, whether the defendant was “adversely affected by alcohol”.  That case was not being made and the appellant had not prepared to meet it.  It was only introduced – and then with the authority of the trial judge – for the jury’s consideration after the appellant had made his election not to give evidence and after his counsel had addressed them.  In the result, a miscarriage of justice has occurred.  Ground 2(a) is made out.
Proviso?
[54]	The Crown case is very strong.  The unchallenged eyewitness testimony and appellant’s admissions, combined with the dashcam footage, should compel an obvious conclusion.  It must also be allowed that the misdirection occurred in a brief moment during an otherwise unimpeachable summing up and that no redirections were requested.
[55]	However, this is one of those situations in which, even though I am persuaded that the evidence properly admitted at trial proved beyond reasonable doubt that the appellant was guilty, the appeal cannot be dismissed.  There was an element of procedural unfairness in the direction given and, whilst there is no rigid formula to determine what might constitute a “fundamental error” of the kind that denies application of the proviso, this direction had that character.  It invited consideration of an already particularised and confined Crown case on an expanded basis.  This was a failure to observe the requirements of the criminal process in a fundamental respect.  It follows that no occasion to address the proviso separately arises.
[56]	The appeal should be allowed and a new trial should be ordered.