Ahadizad v Emerton [2002] ACTSC 20

4. The appellant submits that in considering whether the appellant's actions were involuntary the Magistrate ought have taken into account that there was no warning of the sneezing attack and the severity of the imminent attack. The presence of a warning before an involuntary episode that is not acted on may indicate dangerous driving from the time of the warning until the time the involuntary episode begins:

"A driver who drives when tired or drowsy may, depending upon all the circumstances, be guilty of driving in a manner dangerous to the public."

(Jiminez v The Queen [1992] HCA 14; (1991) 173 CLR 572 at 581).

5. However, the absence of a warning of imminent loss of control is not conclusive of the question of whether an act is involuntary or not.

6. The Magistrate recognised the severity of the attack in describing it as a "fit". In argument there was some doubt as to how to classify a sneezing attack. It is clear from cases such as Jiminez at 282-283_,_ as indeed from human experience, that once a driver falls asleep the driving thereafter is neither conscious nor voluntary. There is obiter in Hill v Baxter [1958] 1 QB 277 that a loss of control caused by a sudden attack by a swarm of bees is sufficient to render involuntary acts done in mechanistic response to the attack. However all cases depend on the circumstances. The effect of a sneezing attack is not absolute. Even during rapid and severe sneezing one still has a modicum of control. In the present case the degree of sneezing was such that it was open to the Magistrate to find that the appellant could and should have applied the footbrake.

7. The appellant also contended that the Magistrate's reasoning was based on a false assumption that it is dangerous to continue to drive during a sneezing attack. This contention does not fall within the ground of appeal. However if it were considered, it would fail. What is dangerous is a question of fact. A court may take judicial notice of facts that are so generally known that every ordinary person may be reasonably presumed to be aware of them: Holland v Jones [1917] HCA 26; (1917) 23 CLR 149. Driving and sneezing are each a common experience. It was open to the Magistrate to find that to continue to drive during a sneezing attack is dangerous.

8. The appellant's final argument on the first ground of appeal was that the impact occurred after the sneezing attack had finished and resulted therefore from the associated disorientation. However, unlike the offence considered in Jiminez, s129(1) the offence of driving in a manner dangerous to the public does not necessarily require consideration of the manner of driving at the moment of impact or during a period nearly contemporaneous with impact. It is sufficient, as in this case, if there is driving in a manner dangerous that is not involuntary, for example failing to apply the brake when undergoing a sneezing attack.

WAS THE MAGISTRATE MISTAKEN ON THE ONUS OF PROOF?

9. The appellant submitted that the prosecution bore the onus of proof of establishing that the appellant's belief that he was "going straight" was not honestly or reasonably held. This is at odds with the second ground of appeal. The argument ought more properly to have been directed at whether the Magistrate recognised that the prosecution bore the ultimate burden to prove that the appellant was acting voluntarily.

10. Nevertheless, on the issue of honest or reasonable belief, that argument must nevertheless fail. The majority in Jiminez at 583 held that "it will be a defence to establish honest and reasonable mistake as to facts which if true would exculpate the driver". On the facts of the present case the appellant held a belief that he was going straight and keeping within his lane. However, a mistake about the path of the vehicle on the part of a driver whose vision is severely restricted and whose capacity to control the vehicle is impaired, is not necessarily reasonable, having regard to the decision to keep driving notwithstanding such impairment. The Magistrate's finding that to continue to drive when undergoing a sneezing attack constituted driving in a manner dangerous excluded any reasonable belief which might have been exculpatory.

11. The respondent's case addressed the second ground of appeal more closely. It was submitted that once the issue of voluntariness has been successfully raised by the accused, the prosecution must prove that the accused's acts or omissions were not involuntary (Ryan v R [1967] HCA 2; (1967) 121 CLR 205 per Barwick CJ at 217), but that in order to be able to raise the issue the defence must negative the presumption of voluntariness. In R v Falconer [1990] HCA 49; (1990) 171 CLR 30 Deane and Dawson JJ said at 61:

"a person's will follows their actions... It will not be enough for an accused to assert that his or her acts were involuntary or that he suffered a loss of memory. Evidence of his condition at the time of the alleged offence supported by expert medical opinion will be required before an issue of sane automatism can realistically be raised."

In this case no such evidence was tendered at the hearing.

12. In any event, Falconer was concerned with the effect of mental illness. Expert medical opinion is not required to establish the nature and consequences of for what is a common experience, sneezing. As discussed above, knowledge of that common experience led the Magistrate to reject the notion that to suffer a sneezing fit renders a driver totally incapable of taking some safety measures to counteract the danger arising from the loss of control of the vehicle. Such safety measures include applying or at least attempting to apply the footbrake. The appellant failed to take any such measure.

14. Unless the parties wish to be heard, I propose that no order be made as to costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Solicitor for the appellant: Snedden Hall and Gallop

Solicitor for the respondent: ACT Director of Public Prosecutions