Citation: Police v Smith, Mark Joseph [2015] NSWLC 18
Court: NSW Local Court
Date: 29 September 2015
Judge(s): D Williams LCM
Background
Police attended a single-vehicle collision on Pittwater Road, Dee Why, at approximately 3:00 am on 5 April 2014. They found the accused trapped in his car, which had struck a power pole. A taxi driver who witnessed the crash described the vehicle as travelling at normal speed, taking no evasive action, and simply driving through an intersection before hitting the pole. The accused's blood alcohol concentration was 0.110 (mid-range prescribed concentration of alcohol, or PCA), and his blood also contained prescription medications including zolpidem, the active ingredient in the sleep medication Stilnox, all at therapeutic levels.
The accused had no memory of driving. He gave evidence that, after the death of a sick child he had visited in hospital, he drank heavily at a local club, walked home, took his prescription medications including Stilnox, and went to bed around 11:00 pm. His next memory was waking in intensive care the following day.
The accused was charged with driving with a mid-range PCA, using an unregistered vehicle, using an uninsured vehicle, and driving a vehicle on which road tax had not been paid. The defence did not dispute the driving or the blood alcohol reading, but argued that the driving was involuntary because the accused was, at the relevant time, in a drug-induced sleep state known as parasomnia.
Legal Issues
- Whether expert pharmacological evidence about zolpidem-induced parasomnia (sleep-driving) was admissible under s 79 of the Evidence Act 1995, and if so, whether it should nonetheless be excluded under s 135
- Whether s 428G(1) of the Crimes Act 1900 precluded the intoxication evidence from being taken into account on the question of voluntariness, on the basis that the intoxication was self-induced
- Whether, if the evidence were admitted, it was sufficient to discharge the accused's evidentiary burden and enliven the issue of automatism
- Whether any automatism arising on the facts was properly characterised as sane or insane automatism
Decision
Admissibility of expert evidence. The Magistrate admitted Dr Moses' evidence under s 79 of the Evidence Act. Although the prosecution challenged the adequacy of the underlying scientific literature on zolpidem-induced parasomnia, the Magistrate found that Dr Moses possessed sufficient specialised knowledge as an experienced pharmacologist and that her opinion was based on that knowledge. The court declined to exclude the evidence under s 135, finding its probative value was not substantially outweighed by the risk of unfair prejudice or misleading the fact-finder.
Self-induced intoxication under s 428G. The Magistrate found that s 428G(1) of the Crimes Act, which prevents self-induced intoxication from being taken into account on questions of voluntariness, did not apply in the circumstances. The parasomnia defence was not a straightforward case of relying on voluntary intoxication. The Magistrate accepted that taking a prescribed medication according to a medical prescription fell outside the concept of self-induced intoxication for this purpose.
Evidentiary burden and automatism. The Magistrate confirmed the settled principle that where voluntariness is in question, the prosecution must prove beyond reasonable doubt that the accused acted voluntarily. The accused bears only an evidentiary burden, meaning he must point to some evidence raising a reasonable possibility that the act was involuntary. The Magistrate found this threshold was met, through the accused's own sworn evidence and Dr Moses' expert opinion, thereby requiring the prosecution to disprove involuntariness beyond reasonable doubt.
Acquittal on all charges. The Magistrate was candid about sharing many of the prosecution's scepticisms, both about the scientific basis for zolpidem-induced parasomnia and about the accused's account. The Magistrate expressly rejected Dr Moses' characterisation that it was "very likely" the accused was in a parasomnia state. Nevertheless, applying the criminal standard of proof, the Magistrate could not exclude the reasonable possibility that the accused was not acting voluntarily. On that basis, all four charges were dismissed. The question of sane versus insane automatism was raised but the Magistrate's acquittal on voluntariness grounds made it unnecessary to determine that issue definitively.
Orders Made
• Found not guilty of all charges
Key Takeaways
- The prosecution bears the onus of proving voluntariness beyond reasonable doubt once an accused points to some evidence raising a reasonable possibility that the relevant act was involuntary; the accused carries only an evidentiary burden, not a legal one.
- A defence based on zolpidem-induced parasomnia (sleep-driving) can, in principle, satisfy that evidentiary burden when supported by sworn evidence from the accused and admissible expert pharmacological opinion, even where the underlying science is contested and the court itself is sceptical.
- Under s 428G(1) of the Crimes Act 1900, the prohibition on using self-induced intoxication to support a voluntariness argument was found, in this case, not to apply where the relevant medication had been taken as prescribed by a medical practitioner.
- Expert opinion evidence on zolpidem and parasomnia was held admissible under s 79 of the Evidence Act 1995 where the witness was an experienced pharmacologist and her opinion was based on her specialised knowledge, notwithstanding prosecution challenges to the breadth and reliability of the scientific literature underpinning it.
- A reasonable doubt as to voluntariness, even described by the Magistrate as a "remote" possibility, is sufficient to require acquittal; the standard of proof is not calibrated to the degree of probability the court assigns to the defence account.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 428A, 428G
- Evidence Act 1995 (NSW), ss 79, 135
Cases
- 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