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Local Court 24 November 2010

Police V Pritchard

[2010] NSWLC 26

Traffic & driving
DRIVING OFFENCES DEFENCE OF SANE AUTOMATISM SLEEP DRIVING CAUSED BY STILNOX ACCUSED SELF

Citation: Police v Pritchard [2010] NSWLC 26
Court: Local Court of New South Wales (Camden)
Date: 24 November 2010
Judge(s): Magistrate Clisdell

Background

The defendant was charged with three driving offences arising from two separate incidents on 16 and 17 October 2009. The first incident involved failing to properly control a motor vehicle. The second involved driving in a manner dangerous to the public and driving under the influence of a drug.

On both occasions, the defendant had no recollection of events. She raised the defence of sane (non-insane) automatism, arguing she had been sleep driving as a result of taking Stilnox (zolpidem), a prescription sedative. There was no dispute that the driving conduct as described by the prosecution had occurred, nor that the defendant was the driver.

The prosecution case was admitted by way of a "hand-up brief," meaning the written statements and materials were tendered without live witnesses being called. The defendant relied on expert evidence from a forensic psychiatrist to establish that she had been in a state of involuntary somnambulism (sleepwalking or sleep driving) at the relevant times.

  • Whether the defendant was in a state of sane automatism (sleep driving) during the driving incidents on 16 and 17 October 2009, rendering her actions involuntary
  • Whether the expert report tendered by the defence provided a proper evidentiary foundation for the automatism defence
  • Whether the prosecution could rebut the automatism defence by relying on the proven facts alone, without calling its own expert evidence in reply
  • Whether the defendant's conduct on each occasion amounted to a total destruction of voluntary control, as required for the defence of automatism

Decision

Magistrate Clisdell rejected the automatism defence on both charges and convicted the defendant.

In relation to the 16 October incident, the court found that the expert report, while prepared by a qualified expert, had been written to address the 17 October events and only extended by extrapolation to cover the earlier incident. That extrapolation lacked a proper factual foundation under the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. Key factors undermined the sleep-driving conclusion: the defendant had been awake at 3pm (observed by police at her home), had driven over 21 kilometres, and none of the recognised indicators of sleep driving identified by Dr Geraldine Moses in another case (such as incoherence, unusual dress, or short distance travelled) were present.

In relation to the 17 October incident, the defendant was found by police driving erratically in the early afternoon. Toxicology revealed zolpidem in her blood. However, evidence showed she had woken at 9am and had self-medicated by taking a dose well exceeding her prescription. The expert concluded she had been in a somnambulistic state all day, but the court found that conclusion was not supported by the evidence. The defendant's ability to steer, change gears, stop at intersections, and otherwise maintain some vehicle control was inconsistent with the total destruction of voluntary control that automatism requires.

The court noted that impaired, reduced, or partial control does not satisfy the automatism defence, following English authority. Lack of memory alone does not establish sleep driving; it is evidence of impairment or intoxication, not unconscious involuntary action.

Orders Made

• The accused is convicted.

Key Takeaways

  • The automatism defence requires a total destruction of voluntary control. Impaired or partial control, including erratic driving while retaining the ability to steer, change gears, and stop, is insufficient to establish the defence.
  • An expert report tendered without objection does not oblige the court to accept its conclusions uncritically. Where facts in evidence cast doubt on the expert's reasoning, the court may reject or limit the weight given to those conclusions, consistent with Makita v Sprowles.
  • Extrapolating an expert opinion prepared for one incident to a factually distinct earlier incident, without addressing the specific circumstances of that earlier event, may deprive the opinion of a proper factual foundation.
  • Where a defendant self-medicates by exceeding a prescribed dose, that conduct is relevant to assessing the automatism defence, particularly in distinguishing involuntary intoxication from self-induced impairment.
  • Absence of recollection is not, by itself, proof of sleep driving. A court may treat amnesia as evidence of impairment or intoxication rather than as confirmation that the defendant's actions were entirely involuntary.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 136
- Crimes Act 1900 (NSW), ss 428A, 428D
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 12(1)(a), 42(2)
- Road Rules, r 297(1)

Cases
- Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
- Robert James Kingston [2008] NSWDC 86
- Attorney General's Reference (No 2 of 1992) [1993] 4 All ER 683
- Broome v Perkins [1987] Crim LR 271