Citation: Conviction Appeal - Robert James Kingston [2008] NSWDC 86
Court: District Court of New South Wales
Date: 10 April 2008
Judge(s): Phegan DCJ
Background
The appellant was convicted in Hornsby Local Court of driving with a mid-range prescribed concentration of alcohol (PCA) of 0.105, contrary to the Road Transport (Safety and Traffic Management) Act 1999. He was sentenced to a three-year licence disqualification, released on a section 9 bond for three years, and ordered to pay $70 in costs.
The events arose on the night of 28 April 2007. The appellant had consumed several beers over the course of the evening with a friend, then took a Stilnox tablet (containing the sedative drug Zolpidem) for the first time before going to bed. His next conscious memory was waking at his friend's home the following morning. In between, he had driven his car on the wrong side of the road and been involved in a head-on collision.
At the collision scene, the appellant was found in a t-shirt and shorts with no shoes, despite temperatures of approximately 16 degrees Celsius. Witnesses described him as unsteady, glassy-eyed and slurring his words. He later exhibited confused and irrational behaviour, including making bizarre claims about his friend's car and asking what his police paperwork was about, having no apparent recollection of the accident.
Legal Issues
- Whether the defence of automatism was available to the appellant on the evidence
- Whether the appellant had discharged the evidential burden of pointing to a reasonable possibility that his actions were involuntary due to automatism
- Whether the Crown had then discharged the burden of excluding that reasonable doubt
- Whether the District Court, sitting on appeal, was in an equivalent position to the Magistrate in assessing the relevant evidence, particularly the expert pharmacological evidence
Decision
The central defence was automatism: the proposition that the appellant was not acting consciously or voluntarily at the time of the offence. Expert evidence from pharmacologist Dr Geraldine Moses addressed the known effects of Zolpidem, including sleep-driving, hallucinations, amnesia and complex automated behaviours performed without conscious awareness. Critically, the Magistrate had not doubted Dr Moses as a witness of truth, but rather was concerned about the limits of scientific certainty regarding Zolpidem's effects.
Phegan DCJ found that the District Court was in no lesser position than the Magistrate to assess this expert evidence. Because the Magistrate's conclusions rested primarily on scientific material rather than on observations of witness demeanour, the usual appellate deference to trial court findings on credibility was of limited application here. The principles in SS Hontestroom v SS Sagaporack and Fox v Percy were acknowledged, but the court was satisfied this was not a case where the trial court held a material advantage.
Applying the test from Youssef (1990), the appellant bore an evidential burden to point to material from which a reasonable possibility of involuntary action could be inferred. The court found this burden was discharged. Distinguished from the earlier case of Russell, the facts here included a significantly lower blood alcohol level, bizarre hallucinations, total amnesia, undress in cold weather, and the unexplained locking of internal doors from the inside before the appellant left his home. These features, taken together, were consistent with a Zolpidem-induced automatism rather than ordinary alcohol intoxication.
The Crown was then required to remove that reasonable doubt but did not do so. The court was not satisfied the offence had been proved to the required standard, and entered a verdict of not guilty.
Orders Made
- Appeal allowed
- Conviction quashed
- Application for costs refused
Key Takeaways
- The District Court confirmed that the defence of automatism is capable of applying to a mid-range PCA charge where credible evidence raises a reasonable possibility that the defendant's conduct was involuntary.
- Under the test in Youssef, a defendant bears only an evidential burden to point to material supporting a reasonable possibility of involuntary action; once that burden is discharged, the Crown must affirmatively exclude the reasonable doubt.
- Where a Magistrate's findings rest substantially on documentary and expert evidence rather than on assessments of witness demeanour, an appellate court may stand in an equivalent position to evaluate that evidence without the usual deference owed to the trial court.
- The combination of factors distinguishing this case from prior authority included total amnesia, hallucinations, state of undress in cold temperatures, unexplained locking of doors, and a blood alcohol level lower than in comparable cases where automatism had been rejected.
- Residual traces of Zolpidem in the appellant's blood, confirmed by a test taken the following morning, provided objective corroboration of the pharmacological expert's account of the drug's likely effects.
Legislation and Cases Referenced
Legislation:
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 9(3)(a)
Cases:
- SS Hontestroom v SS Sagaporack [1927] AC 37
- R v O'Connor (1980) 146 CLR 64
- Abalos v Australian Postal Commission (1990) 171 CLR
- Youssef (1990) 50 ACrimR 1
- Edwards v Macrae (1991) 15 MVR 193
- Russell (1993) 70 ACrimR 17
- Fox v Percy (2003) 214 CLR 118
- Tucker v The Police [2004] SASC 239
- Jamal Charara v The Crown [2006] NSWCCA 244 (unreported)