Audsley v The Queen [2014] VSCA 321

Audsley v The Queen [2014] VSCA 321 - VSCA 2014 case summary — Zoe

[32]

Can I ask you, in the week or so, or maybe the two weeks or whatever leading up to this particular incident, do you know what you were doing? ... In general terms, what were you doing?---Hanging around, partying, getting on the gear.

...

What actually do you mean by that?---Getting on the drugs.

...

So you're partying, getting on the gear for how long before this incident occurred?---For as long as I've known Face [Jase], we've partied ... we did it.

So, what, you'd been doing this for [a] month [sic.] before ?---Months.

For months getting on the gear and partying. Is that so? ---Yes.

What, every day?---You'd have the off time.

What, you'd go and have kip for five minutes and get back on the gear again or what?---No.

You tell us?---A day or two.

Sorry?---A day or two.

A day or two, what, partying or ?---Sleep and ... and then go back to it.

...

Getting on the gear. Was this every day for some long period of time?---Yes.

Every day you're getting on the gear?---Give or take.

...

And what gear are we talking about here?---Ice, speed.

Anything else?---Dope, weed.

Dope. What else?---As in weed.

Weed. Anything you could get your hands on?---No, not really. I mainly just stuck to the speed.

Speed, that's, what, methylamphetamine?---Yes.

And ice is a crystal form of methylamphetamine?---Yes.

Weed is cannabis?---Yes.

Drinking alcohol?---Yes.

In what sort of quantities are we talking about?---What's on hand.

Sorry?---It was on hand, whatever you want.

Whatever you want?---Yes.

What do you mean, whatever I want or whatever you want?---Whatever we want.

So you've got pretty much an unlimited supply of what you call gear. Is that so?---To a degree.

Pardon?---To a degree, yes.

You're taking this almost every day leading up to this particular event. Is that so?---Yes.

Mixing it with alcohol?---Yes.

What sort of alcohol?---Bourbons.

Bourbon?---Yes.

How much bourbon do you drink at a sitting?---I'm not a big drinker, so

Sorry?---I'm not a big drinker, so

I don't know?---All right.

A bottle, half a bottle? What?---No.

How much?---In a sitting?

Yes?---Five cans, six cans.

...

Five to six cans of, what, bourbon and Coke?---Yes.

This would be interspersed with taking gear, being ice, methylamphetamine and weed. Is that so?---Yes.

In quite large quantities?---Yes.

When I say 'large quantities', perhaps you could tell the jury what you mean by a large quantity of gear, if I can put it that way, at a sitting?---There wasn't much of a period where we didn't have it. If we didn't have it, it was already coming towards us.

Leading up to this burglary. Is that so?---Yes.

I mean, for instance, in terms of your ice use, in the week leading up to the particular burglary how much ice would you have used ... in that week?---Who knows.

You know?---I didn't weigh it.

Or don't you know. But you've got some ?---Roughly - who knows - it may be a gram, half a gram.

What, in a week?---Yes.

You'd had more than that, surely?---No, I smoke it.

...

What, you'd have one smoke in a week?---No, a gram is 10 points; that's more than enough.

Sorry?---10 points is more than enough to keep you going for nearly a week if you're good.

When you say 'keep you going', what do you mean by that?---Pep you up, get your bob.

Sorry?---Keep you going.

10 points or whatever of, what, methylamphetamine. Is that so?---Yes.

What about the crystal form of ?---No, the crystal would be a gram.

Sorry?---The crystal would be the gram.

Would be?---About a gram. Speed, you'd go through heaps of it.

Heaps of it?---Heaps of it. Two different drugs.

Sorry?---They're like the same drug family, two different drugs.

But the best you can put it is you had heaps. Is that so?---Yes.

Mixed with alcohol?---Yes.

Also interspersed with weed?---Yes.

That's a pretty potent sort of cocktail, wouldn't you agree? ---Not really.

...

It's fair to say, is it not, Mr Turner, that you've got some pretty extensive experience with drugs, haven't you?---Yes.

How long have you been using drugs?---13 plus years.

In that sort of mixture of weed, ice, methylamphetamine, mixing it with alcohol. Is that so?---Not all at once all the time, but yes.

That's not an uncommon sort of binge, if I could put it that way?---A bender, yes.

Sorry?---Like a bender.

So you'd just go on benders. Is that so?---(indistinct)

And you were certainly having one or more benders in the week or months leading up to this burglary. Is that right?---Yes.

And you'd been on benders, basically, for the last 13 years? ---Yes.

Has that had any effect on your ability to perceive things around you?---No.

Not at all?---Not that I can acknowledge, no.

I suppose that's not ?---Not that anyone has ever told me.

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In all these benders with this sort of cocktail of drugs and alcohol that you've had over 13-odd years have you ever woken up and thought, 'I wonder what happened last night'?---Yeah.

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Let me move on, yes. Well, you see, you seem to have been on a bender or benders in at least the week or so leading up to this particular burglary. Is that so?---Yes.

[34]

What, he'd take his eyes of the road and look you in the eye and have a conversation with you, did he?---No, but he took his eyes off the road to have a line.

Beg your pardon?---Took the eyes off the road to have a line.

To have a what?---Line. ... A line of gear.

In the car on the way?---Yep ... We were constantly on it.

...

What, you're on the gear in the car on the way there?---Yep.

How was this being taken?---Snorting it.

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Well, just describe to members of the jury how that was being done?---Racking lines up on a CD case and snorting them.

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What, the driver's doing this, is he?---All of us.

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So the driver's driving along, racking up a line on a CD case and having a snort of it as he's hurtling down the road?

---Nah. ... Jase racks the lines up and we all had one.

How many of those did you have on the way there?---Probably two or three.

Two or [three], up the nose?---Yeah.

What of?---Speed.

Speed. What effect did that have on you?---Highly motivated.

In terms of the effect that it has on you, I mean, do you - just tell the jury, do you see things the way they actually are or do they get distorted or what?---No, everything just seems normal. You just---

Well, what's the point of taking it?---You're - you don't seem normal.

Well, what's the point of taking it?---Because - I don't know. It's ... sort of - everything's a little bit more amusing and a bit you're a bit quicker and sharper.

...

So things seem to be different than what they really are. Is that fair enough?

---You just seem to perceive more. ... You feel like you've got more time.

You think you do?---Yeah, you think you do; yeah. It is, it's a---

But you could be wrong?---Yeah, you could be.

In fact, what you perceive as happening around you whilst - you know, when you're snorting this stuff, what you perceive to be happening could in fact be something really quite different. Is that---?---No, not really. ... Speed - speed is not like an acid or anything. It doesn't change the - like, your environment or any of that ... You don't hallucinate, none of that.

But things could be moving faster than what they actually are?---Possibly.

Well, that's as perception that's different to reality, is it not?---It's - but it's not an hallucination.

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I'm not suggesting at the moment that, you know, you see snakes coming out of trees or whatever, but what you see is actually quite different to what might actually be happening. Is that fair enough?---That's a fair assumption, yeah.

[52]

intoxication by a substance affects brain function and thinking skills;
intoxication does not affect perception per se (so the person can still see and hear), but it will affect the ability to store information in the correct context. Hence 'there could be some question about the reliability of recalling that information some time later';
drugs which are stimulants have a different effect from drugs which are depressants, but both affect cognitive functioning;
taking drugs in combination, including in combination with alcohol, does not change the action of the particular drug but may change the degree to which the symptoms are experienced, so that using two or more drugs together can make both drugs have more effect than they would have if used individually (this being called 'the synergistic effect');
if a person is taking depressant or central nervous system depressant drugs (such as alcohol or heroin or benzodiazepines), then a person tends to forget things under the influence of those drugs 'because he or she is not storing them in the first place'. Arousal gets reduced, so the memory is not stored;
the effect of central nervous system stimulant drugs such as cocaine or amphetamines is different, because at low levels these drugs 'can actually improve attention' [but] 'it does not take too much to overload the attention and once overloaded, then the person can still remember snippets of information but starts having a reduction in ability to put them in the right context, so as a result as one becomes more intoxicated on [central nervous system] stimulants, one is much more likely to confuse bits of information between different settings, if you remember them';
when trying to learn or remember things under the influence of drugs, 'the issue is that they're not getting stored properly in the first place';
that is different from the displacement effect (which means that as more information comes into the memory, some that is not so important is likely to be forgotten);
as information is learned or remembered, it is not remembered in isolation but with a context around it, so that in order to recognise a face 'you have to have traces or connections to where you saw that person, what the context was in which you saw them, who else was there and what was going on, so there are connections your brain makes with isolated pieces of information to link them all together';
there is 'quite a large literature on the effect of sleep deprivation on cognitive function which generally says that after one has been awake for about 36 hours, one's ability to concentrate, remember, attend to things, starts to diminish quite quickly';
tolerance to a drug or to alcohol 'does come into play but it does not negate the effect of the drug';
how accurately 'somebody remembers something such as a face 14 months down the track will depend on how well it was stored in the first place', it being 'not so much an issue of what the person was like at the time they were recalling it or being prompted to recall it', but 'how acutely affected by the presence of a substance in the system affecting brain function' at the time the person 'stored' the memory;
the 'degree of impairment and the degree of unreliability of recall of events some time down the track really depends on the amount of substance that has been ingested, together with the tolerance level that may or may not have been built up by the person over some years, the nature of the substance, that is, whether stimulant or depressant, and other factors such as body fluids and body fat'; and
meeting a person 'and doing things together and meeting a person more than fleetingly would improve prospects of remembering the face but not if under the influence of drugs'.

[90]

As the [judge's ruling] indicates, he formed the view that the jury could derive no assistance from the evidence of Dr Redman from whom the defence wished to adduce the opinion that 'people on drugs get muddled' - a piece of information which he considered that an ordinary member of the community might be expected to possess. Setting to one side the question whether this assumption was on its face correct, there is a basis for doubt that his Honour directed his mind to an important aspect of the evidence of Dr Redman, that is, that drug abuse of the specific kind in which the witnesses, Leonie Hickey in particular, had engaged might have had effects which extended beyond the period of abuse so that their capacity to recall accurately events, which occurred at a time after the cessation of abuse, may have been impaired. There was no reference made in his Honour's remarks to this possibility, and the expressions that he employed in discussion suggest that he was contemplating contemporaneous drug abuse only.

Accepting, however, for present purposes that his Honour did contemplate non-contemporaneous abuse, his assumption that an ordinary member of the community would possess an appreciation of the effects of the long-term ingestion of benzodiazepam is also problematic. Whilst the regrettable increase in the abuse of prescription and non-prescription drugs in our society over recent years could be expected to have increased the general level of awareness in the community of the consequences of the ingestion of such materials, we do not consider that, in the absence of any evidence on this matter, a jury could be assumed to possess the specific knowledge in question. It could be appropriately the subject of expert evidence, and was in the present case, where evidence was admitted with respect to the drug intake of Leonie Hickey at the relevant time. Without being placed into the wider context provided by the evidence of Dr Redman, that evidence could, if his Honour's assumption was incorrect, as we think it was, have been positively misleading to a jury, not familiar with the consequences of drug abuse.

[93]

There could be no question that pursuant to s 55(1) of the Evidence Act 2008 the evidence that the accused was consuming methamphetamine is relevant in the sense that if it is accepted, and there appears to be no dispute about it, it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding being a circumstance of negligence. If the evidence that the accused man consumed methamphetamine prior to handling his firearm and was likely to be affected by it in some way or another, then it seems to be that the manner in which such a drug would affect an individual is also relevant.

Whilst a juror may well understand that the handling of a loaded firearm whilst under the influence of any drug is dangerous, it is more likely that a jury will form a correct judgment about the circumstances when assisted by medical evidence such as evidence proposed to be led from Dr Odell about the affects of the stimulant drug methamphetamine. No issue is raised as to whether or not Dr Odell has specialised knowledge, and he clearly has.

Whether or not the effects described by Dr Odell in his statement were actually experienced by the accused in this case is a matter for the jury to consider. As I noted to Mr Toohey in the course of argument, the jury will be informed that this evidence is admitted in order that they may have a medical understanding of the effect of methamphetamine on the human body and that the evidence is given for their assistance and in circumstances where it cannot be specific to the accused other than by reference to the history which Dr Odell quotes. Dr Odell can no doubt be cross-examined by Mr Toohey about the limits of his knowledge about the accused and all potential variations that might affect his description of the impact of 'ice' on any individual.

Whether the accused suffered or experienced any of the effects that Dr Odell describes can occur from taking methamphetamine is also a matter of fact to be determined by the jury and they will be so informed. However, in my opinion, to make a proper judgment on the issue of whether or not the prosecution has proved that the conduct of the accused in this case fell so far short of the standard of care which a reasonable man would have exercised and which involved such a high risk of death or grievous bodily harm, they will be assisted by this evidence so that they may understand the consequences or potential consequences of the consumption of methamphetamine.

At a glance

Court

Decision date

Before

Source

Judgment (122 paragraphs)

Parties