Police v Smith, Mark Joseph [2015] NSWLC 18

Local Court New South Wales

Medium Neutral Citation: Police v Smith, Mark Joseph [2015] NSWLC 18 Hearing dates: 18 August 2015 Decision date: 29 September 2015 Jurisdiction: Criminal Before: D Williams LCM Decision: The accused is found not guilty of all charges Catchwords: CRIMINAL LAW – drive with mid-range PCA and other motor vehicle offences – admissibility of expert evidence – zolpidem intoxication – voluntariness – sane or insane automatism Legislation Cited: Crimes Act 1900, ss 66C, 428A, 428G Evidence Act 1995, ss 79, 135 Cases Cited: CTM v R (2008) 236 CLR 440 Green v R (1971) 126 CLR 28 Hadba v R (2004) 146 A Crim R 291 Woodbridge v R [2010] NSWCCA 185 Category: Principal judgment Parties: NSW Police Mark Joseph Smith (the accused) Representation: Sgt J McLoughlin (for the NSW Police) Mr T Heenan (solicitor for the accused) File Number(s): 2014/192501

Judgment 1. At about 3.00 in the morning on the 5th of April last year, police were called to a single-vehicle car accident on Pittwater Road in Dee Why. When they arrived they found the accused, Mark Smith, trapped in the driver's seat of his car, which had crashed into a power pole. A taxi driver who saw the crash said that the accused's car wasn't speeding and didn't swerve or take any evasive action - it simply entered the intersection of Lismore Avenue and Pittwater Road, drove through it and crashed into the power pole on the other side. The crash took place about 2 kilometres from the accused's home, and at the time, the accused's car was travelling towards, rather than away from, his home. 2. People who spoke with Mr Smith at the scene reported that he was somewhat incoherent, and was not speaking in complete sentences. He did, however, tell them his name. They noticed that he smelled strongly of alcohol. 3. Mr Smith had to be cut out of his car, and he was taken to hospital with significant injuries. His blood was tested, and he was found to have a blood alcohol reading of 0.110, which is well into the mid-range. Also in his blood were a number of prescription medications, including the sleeping medication stilnox, the active ingredient of which is a drug called zolpidem. Mr Smith suffers from a number of complex and inter-related medical conditions, and it is not ultimately disputed that all of the medications, including stilnox, had been prescribed for him by medical practitioners. The prescription medications were at therapeutic levels. 4. Mr Smith says he has no memory of driving his car. He says that on the day leading up to the crash, he had visited a sick child in hospital, and that child sadly died. Despite a history of alcohol abuse, Mr Smith had been abstinent from alcohol for a considerable period of time, but upon the passing of the young child, he decided to get drunk. After returning to his home by public transport, he says he walked down to the Collaroy Beach Club, a few hundred metres from his home, and began drinking. He says he had 8 or 9 schooners of full strength beer in the space of about 3 1/2 hours, which on any view is a substantial amount of alcohol. He says after that he walked home, got ready for bed, and went to bed at about 11pm. Just before going to bed, he took his prescription medications, including stilnox, and went to sleep. He says that his next memory is of waking up in intensive care at Royal North Shore hospital the following day. 5. There is no dispute in this case that Mr Smith in fact drove his car, crashing it into the power pole. There is no dispute that his blood alcohol concentration was within the mid-range at the time he did so. 6. As a consequence of that driving, he has been charged with the following four offences: 1. Drive with mid-range PCA; 2. Use unregistered vehicle; 3. Use uninsured vehicle; and 4. Drive a vehicle on a road for which tax has not been paid. 1. Although the fact that the accused was driving in the circumstances referred to in the charges is not in dispute, the defence submit that he is not guilty of any of them, because the prosecution cannot prove beyond reasonable doubt that his driving was voluntary. That is because at the time of the driving, there is a reasonable possibility that he was in fact asleep. It is submitted that stilnox can cause people to enter a state known as parasomnia, in which people can perform reasonably complex actions, including driving, despite being technically asleep. If Mr Smith was indeed asleep, then it could not be said that his driving of the vehicle was voluntary, and so he is not criminally responsible for it. It is, in other words, a case of automatism. 2. This contention, made on behalf of the accused, raises a number of issues. Before considering those, though, I should record some other short facts that are not in dispute. 3. It is common ground that Mr Smith's car was not insured, and not registered. Evidence before me indicates that the registration had expired on the 20 January 2014, about two and a half months before the collision. Mr Smith says the car was parked on the street near his house. He says that he had only recently bought it, which is why the registration had not been renewed. That issue was not further explored in the evidence. 4. It is well settled that where a question as to voluntariness is raised by the evidence, the onus rests on the prosecution to prove, beyond reasonable doubt, that the accused's actions were voluntary. No onus is cast on the accused other than what is generally described as an "evidentiary burden", that is, a responsibility to point to "some evidence from which it can be inferred that there is a reasonable possibility that the act of the accused was not voluntary": Woodbridge v R [2010] NSWCCA 185 at [73]. 5. In this case, the defence have gone beyond a mere assertion that the accused may have been acting involuntarily, and have positively adduced sworn evidence in support of the proposition, both from the accused himself, and from a pharmacologist named Dr Geraldine Moses. That evidence is met with three preliminary challenges by the prosecution, which I first need to address before going on to consider the substantive issues in the case. The three preliminary challenges are these: firstly, that the evidence of Dr Moses should not be admitted under s 79 of the Evidence Act, or should be excluded under s 135; secondly, that pursuant to s 428G(1) of the Crimes Act it should not be taken into account on the question of voluntariness, because any intoxication was self-induced; and thirdly, that even if the evidence is admitted and taken into account, it does not discharge the accused's evidentiary burden, so that the issue of automatism has not been properly enlivened. There is a fourth preliminary issue that naturally arises from the evidence, which is this: if any issue of automatism arises, is it properly characterised as sane or insane automatism?