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District Court 26 November 2021

R v Grant

[2021] NSWDC 643

Traffic & driving
CRIMINAL LAW DRIVING OFFENCES D ANGEROUS DRIVING OCCASIONING DEATH F AILING TO STOP AND ASSIST POLICE PURSUIT JUDGE ALONE TRIAL

Citation: R v Grant [2021] NSWDC 643
Court: District Court of New South Wales
Date: 26 November 2021
Judge: Hatzistergos DCJ

Background

The accused attended a Christmas party at a farm in Bolwarra, NSW on the evening of 30 November 2019. He drove to the event in a gold Mazda BT-50 utility vehicle and consumed a significant quantity of alcohol during the evening. Although he had a longstanding open invitation to sleep at the property overnight, he did not stay.

The accused later drove his vehicle in circumstances that resulted in a fatal impact involving a fellow party guest, Tony Greenfield. Following that impact, he did not stop to render assistance. He was subsequently pursued by police through the nearby areas of Lorn and Maitland, and continued driving in a manner alleged to be dangerous rather than stopping when required.

Charged with three offences under the Crimes Act 1900 (NSW), the accused pleaded not guilty to all counts. The trial proceeded before a judge alone. His primary defence was that he had been sleepwalking or otherwise in an involuntary or non-conscious state, and that prior medical conditions had affected his cognitive awareness at the time.

  • Whether the accused's driving constituted dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900 (NSW).
  • Whether the accused was criminally liable for failing to stop and give assistance after an impact occasioning death, contrary to s 52AB(1) of the Crimes Act 1900 (NSW).
  • Whether the accused was guilty of driving dangerously during a police pursuit in breach of s 51B(1) of the Crimes Act 1900 (NSW).
  • Whether the accused's conduct was involuntary, specifically whether the defence of somnambulism (sleepwalking) or a related automatism defence was established on the evidence.
  • Whether previous medical conditions affecting cognition displaced the mental element required for the offences.

Decision

The trial proceeded as a judge alone trial, requiring Hatzistergos DCJ to set out both the applicable legal principles and the findings of fact. The standard directions applied: the Crown bore the onus of proof throughout, the accused was presumed innocent, and his election not to give evidence could not be used against him in any way.

The central question was whether the accused had acted voluntarily and with the requisite awareness. The defence relied principally on somnambulism, arguing that the accused may have been in a sleepwalking or otherwise non-conscious state at the time of the offending. The defence also pointed to previous medical conditions, including sleep apnoea, as capable of affecting his cognitive state.

The court considered expert evidence from multiple specialists including a consultant physician in respiratory and sleep medicine, a clinical forensic pharmacologist, a neurologist, a consultant geriatrician, and a second consultant neurologist. Despite that body of evidence being called, the court found that the hypotheses advanced by the defence were not supported by the expert evidence. The medical evidence did not establish that the accused had been sleepwalking or that any medical condition had rendered his conduct involuntary.

The court was satisfied beyond reasonable doubt that the Crown had established each of the three offences. The defence based on involuntary conduct, whether framed as somnambulism or cognitive impairment from prior medical conditions, did not raise a reasonable doubt on the evidence.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court confirmed that in a judge alone trial, the court must articulate the relevant legal principles and make express findings of fact, consistent with the approach in Fleming v R (1998) 197 CLR 250 and Filippou v The Queen (2015) 256 CLR 47.
  • A defence of somnambulism or automatism must be supported by expert evidence capable of raising a reasonable doubt; it is not sufficient merely to assert that prior medical conditions could have impaired cognitive function.
  • Where multiple medical experts testify and none of their evidence supports the defence hypothesis, the trial court is entitled to find that the hypothesis is unestablished.
  • The accused's decision not to give evidence, while entirely permissible, left the defence dependent entirely on the expert and witness evidence called, none of which ultimately supported the involuntary act claim.
  • Intoxication does not in itself ground an automatism defence; the court examined the alcohol consumption evidence alongside the medical evidence and found the Crown's case proven to the requisite standard on all three counts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 51B, 52A, 52AB
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s 136

Cases
- Filippou v The Queen (2015) 256 CLR 47
- Fleming v R (1998) 197 CLR 250
- The Queen v Falconer (1990) 171 CLR 30
- Yousef v R (1990) 50 A Crim R 1