Citation: Regina v Watson [2000] NSWCCA 279
Court: NSW Court of Criminal Appeal
Date: 1 August 2000
Judge(s): Fitzgerald JA, Smart AJ, Ireland AJ
Background
The appellant was a 19-year-old man who, in the months before the fatal incident, had survived a serious case of meningococcal meningitis. He was cleared to return to work and was not warned of any risk of epilepsy or advised against driving. Evidence from his parents, employer, and friends described marked changes in his personality, memory, and physical functioning following his illness.
On the morning of 7 October 1995, the appellant's vehicle struck and killed a road worker who was standing in a clearly marked work zone on Henry Parry Drive, Gosford. Conditions were fine and visibility was good. The appellant was charged with dangerous driving occasioning death under the Crimes Act 1900. He pleaded not guilty.
Over several years, the matter proceeded through three separate trials in the District Court, each running approximately ten to twelve days. The first jury could not agree on a verdict. The second trial was aborted due to an improper approach to a juror by a person unconnected with either party. The third jury convicted the appellant after three days of deliberation, during which the trial judge had noted the possibility of adjourning to the following Monday.
Legal Issues
- Whether the appellant's dangerous driving was voluntary, or whether a sudden loss of consciousness or awareness immediately before the collision was a rational possibility that the Crown had failed to exclude beyond reasonable doubt.
- Whether the trial judge's summing-up contained a material misdirection concerning undisputed evidence, including uncontested expert opinion evidence relevant to the defence of automatism (involuntary conduct).
- Whether, given the history of three trials without a sustainable conviction, the appropriate remedy was a retrial or a verdict of acquittal.
Decision
It was not disputed that the driving was dangerous. The central question was whether that dangerous driving was voluntary. The Crown was required to prove beyond reasonable doubt that a sudden loss of consciousness or awareness before impact was not a rational possibility. Uncontested expert evidence supported at least a reasonable possibility that the appellant had experienced an epileptic event prior to the collision, a possibility increased by evidence that he had consumed alcohol and had inadequate sleep the night before.
The Court found that the trial judge's summing-up failed to address this body of undisputed evidence adequately. In particular, the summing-up did not explain to the jury that expert opinion grounded in undisputed evidence from the appellant's parents, employer, friends, and solicitor could support the appellant's own evidence and was relevant to assessing whether he was telling the truth when he said he could not remember what had happened. The Crown had no evidence to rebut the possibility of involuntary driving and, having effectively set aside the evidence of those witnesses other than the appellant, could only succeed by persuading the jury the appellant was lying. The summing-up made no attempt to frame the case in those terms.
Fitzgerald JA noted that at its worst for the appellant, the prosecution theory was one of momentary inattention, perhaps due to fatigue, with no suggestion of speed, alcohol, or recklessness. After five years and three lengthy trials, the Court considered it unlikely that a properly instructed jury would convict on the evidence presented at the most recent trial.
Given the history of the proceedings, the part-sentence already served, and the improbability of a full-time custodial sentence even if convicted at a further trial, the Court concluded that entering a verdict of acquittal was more appropriate than ordering a fourth trial.
Orders Made
- Appeal against conviction allowed
- Verdict set aside and conviction quashed
- Verdict of acquittal entered
- Crown's appeal against sentence dismissed
Key Takeaways
- A conviction for dangerous driving occasioning death requires the Crown to prove beyond reasonable doubt that the driving was voluntary. Where there is a rational possibility of automatism, such as an epileptic episode, the Crown must exclude it to the required standard.
- Undisputed evidence from lay witnesses and uncontested expert opinion cannot be treated as peripheral in a summing-up where that evidence directly supports the defence case and is relevant to the jury's assessment of the accused's credibility.
- A misdirection that fails to connect expert opinion to its evidentiary foundation, and fails to explain how that opinion bears on the accused's veracity, can be sufficient to vitiate a conviction.
- The Court of Criminal Appeal confirmed that where there have been multiple trials without a sustainable conviction, and where a retrial is unlikely to produce a different result on the available evidence, a verdict of acquittal may be the appropriate remedy rather than a further retrial.
- Post-illness changes in an accused's neurological functioning, observed and attested to by multiple independent witnesses, can form a material part of the evidentiary foundation for an automatism defence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c) (dangerous driving occasioning death)
- Criminal Appeal Act 1912 (NSW), s 5D (prosecution appeal against sentence)
Cases cited: No specific cases were cited in the portions of the judgment provided.