The evidentiary onus to raise a Proudman v Dayman defence of honest and reasonable mistake in a dangerous driving case is not discharged by advancing a remote theoretical possibility of sleep for the first time in closing address, where the possibility is unfounded in any evidence and contrary to the factors relied upon by the defence. The bare possibility that any driver might fall asleep is insufficient; there must be evidence from which it could be inferred that the accused actually fell asleep. Section 160(2) of the Criminal Procedure Act 1986 (NSW) does not permit a Crown supplementary address where defence counsel raises a speculative interpretation of facts rather than asserting unsupported facts.
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