Police V Pritchard [2010] NSWLC 26

REPRESENTATION: Sgt C Parnell Mr B Levet instructed by Marsdens

JUDGMENT 1 Pandora Pritchard was charged with driving offences that occurred on 16 and 17 October 2009. The first charge on 16 October 2009 was for failing to properly control her motor vehicle (Road Rules r 297(1)) and the second set of charges were for driving in a manner dangerous to the public (s 42(2) Road Transport (Safety and Traffic Management) Act 1999 and for driving under the influence of a drug (s 12(1)(a) Road Transport (Safety and Traffic Management) Act 1999.

2 There was no issue that on each occasion the driving of the accused would constitute the offences alleged but for a defence of sane automatism. The facts alleged by the prosecution were not in dispute and the prosecution case was a "hand up brief".

3 I have already found the accused guilty of driving on 16 October 2009 without proper control of her vehicle. In doing so I have rejected the defence of sane automatism. I will give brief reasons to supplement the ex tempore reasons given on 11 October 2010 following the hearing.

Facts of 16 October 2009 4 At about 6pm, Noel Quinn was driving in Argyle Street, Camden, when he observed a green army coloured jeep enter a roundabout without giving way. He had to brake to avoid a collision. He then observed the vehicle to cross to the incorrect side of the road and then swerve back to the breakdown lane. Concerned that the driver was impaired he activated the video recorder on his mobile phone and followed the jeep to the Narellan Town Centre. It is alleged that the video records the jeep mounting the concrete medium strip and crossing unbroken lines. Unfortunately the video tendered would not play, but the defence had no issue with the allegations of driving. There was also no dispute that the accused was the driver.

5 Mr Quinn called the Police. Senior Constable Pereyra responded and spoke to Mr Quinn, before approaching the accused. He told Ms Pritchard he was stopping her because of a complaint about her driving. The accused responded "What my driving?" The officer conducted a breath test that was negative and then a sobriety test. In his statement (paragraph 8) he recorded "The accused appeared steady on her feet while I was speaking with the accused she appeared to be of normal speech". He allowed the accused to drive off. He then viewed the video recorded by Mr Quinn on his phone, obtained a copy of that video and later issued a future Court Attendance Notice to the accused.

6 Ms Pritchard gave evidence that she could not recall any of the events of the day. She only knows what has been given to her by the Police in the brief of evidence or what she has been told by others. She could not recall that the Police had been at her residence at Douglas Park at about 3pm that day in relation to a domestic dispute. A partial C.O.P.S event log of that attendance was tendered in the police brief (E134348396). It noted that the "…. victim appeared to be under the influence of prescription pills. Husband also stated this was the case". The victim was the accused Ms Pritchard. She had no recollection of driving or being spoken to by the police. It would appear that she had driven from Douglas Park to Narellan, a distance of over 21 kilometres.

Expert Evidence for 16 October 2009. 7 Mr Levet for the accused relied on the expert report of Dr Yolande Lucire that was tendered in the defence case. Both matters were heard together. The report had been prepared for the driving offences of 17 October 2009. It makes no reference to the driving on 16 October. Dr Lucire "extended" her report to cover the 16 October driving based on the level of Zolpidem(Stilnox) found in the accused's blood on 17 October and then concluded that Ms Pritchard was sleep driving on 16 October 2009. As such her actions were involuntary and the defence of "non-insane automatism" was made out.

8 I reject Dr Lucire's conclusions in respect of the 16 October driving for the following reasons.

9 Although her report was tendered as an expert report (and I am satisfied Dr Lucire is a qualified expert), in respect of the report's application to this offence it fails a number of the requirements set out in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at paragraph 85. In particular I am not satisfied that the opinion expressed is based on facts that form a proper foundation for such a conclusion. The offence occurred at 6pm. The accused had been awake at 3pm and there is no evidence she went back to sleep before driving. She travelled a substantial distance. Dr Lucire in her report mentions Dr Geraldine Moses as an expert in sleepwalking and sleep driving cases. In the matter of Robert James Kingston [2008] NSWDC 86 Phegan DCJ records at paragraph 11 the following description of sleep driving: - 11 In Dr Moses' report, she makes some further comments about the concept of sleep-driving and the possible connection between that condition and the use of the drug Zolpidem. "Zolpidem appears to trigger sleep driving by inducing a sleep disorder known as parasomnia. Parasomnias are abnormal behaviours that can occur during any part of the five phases of sleep which represent a disorder of arousal occurring when a person is in a mixed state of simultaneously asleep and awake. It is thought that Zolpidem increases the risk of parasomnias because it increases the time spent in stages three and four of non-REM sleep and this is the stage of sleep in which most parasomnias most frequently occur."

Then His Honour describes the driving in paragraph 12.

"It is implicit in Dr Moses' report that she assumed that, even though it may have been for a very short time, the appellant had fallen asleep at some point before he then left the premises in his car and was involved in the accident. On the evidence it must have been a relatively short period of time, but in that respect, one important matter to note is that the accident occurred no more that 200 metres from where he lived so it would not have required a significant period of time for him to have got in his car and, given his state of dress, there certainly was very little involved in preparing himself for taking the car out and finding himself at the scene of the accident. I note, having said that, that he was at the time of the accident travelling in the direction of where he lived rather than the other way round so that it does seem that he must have been on the road for a sufficient time to travel more than 200 metres and turn back towards where he lived. But even allowing for that, the fact that he was not far away does leave open the possibility that all that happened from the time his own recollection ceases including his call to Mr Rayner-Harvey about the people outside wanting to rent a room, may have occurred after falling asleep and before the accident." And then the following comments at paragraph 14:-

14 Occurring within hours of taking a Zolpidem dose and the patient exhibits a strong compulsion to drive somewhere.

· The patient usually pays little attention to their state of dress.

· The majority of sleep-drivers reporting to the AME line have only managed to travel a small distance before having an accident.

· When discovered, sleep-drivers are usually reported to act in a strange manner, usually incoherent and or inappropriately disinhibited. 10 None of the above factors appear to have been present when Ms Pritchard was driving on 16 October 2009. Although the report was tendered without objection I am not obliged to accept such evidence uncritically. Where there is contrary evidence available which casts doubt on the expert's conclusions then regard should be had to the whole of the evidence (per Heydon JA in Makita v Sprowles at paragraph 102). In my view little weight can be given to the extrapolation by Dr Lucire of her conclusions contained in the report prepared for 17 October 2009 so as to apply them to the driving on 16 October 2009. In any event if I am wrong as to that finding I limit the report to the events of 17 October 2009 under s 136(b) Evidence Act 1995. 11 The prosecution case was admitted. The defence is only raised:- "If the accused is able to point to or to produce evidence from which it could be inferred that there is at least a reasonable possibility that his act was involuntary as a result of a state of automatism, the Crown in effect bears the onus of removing the reasonable doubt thereby raised, by establishing that the act was voluntary." per Hunt J in Youssef (1990) NSWCCA 21

12 I am not satisfied that the accused has produced evidence which raises a reasonable possibility of automatism. As a result the prosecution have no need to rebut the evidence raised on behalf of the accused. This is not a reverse onus of proof as submitted by Mr Levet. It is a finding based on all of the available evidence that I am satisfied beyond reasonable doubt of the guilt of the accused, both as to act and intent.

Facts of 17 October 2009 13 Sometime between 11am and 12pm a collision occurred on Remembrance Drive between Cawdor Road and Bridgewater Boulevard at Camden. The accused was again driving the Jeep. Damian Helm was the driver of a Toyota Ute when the Jeep crossed to the incorrect side of the road and collided with the Ute snapping the driver's side mirror off the vehicle and scraping along the tray. The accused did not stop. A shaken Mr Helm continued for about 100 metres before stopping. He was then approached by a witness who told him "She has nearly hit 3 other vehicles, turn around and follow her she will hit someone else"

14 Mr Helm turned around and found the accused had stopped on the side of the road just north of the Camden Valley Inn. He approached her and the following conversation took place: - "I said, "What's going on?" She said, "I'm glad you came back, I don't know what happened" I said, "Have you been drinking?" She said, "No, I just broke up with my boyfriend of 19 years". Mr Helm then rang the Police.

15 There was another witness to the accident and the manner of the driving by the accused. Amanda Haggarty was driving around 11am when she stopped at the intersection of Woodbridge Road and Finns Road, Menangle, in order to turn right onto Finns Road. She saw an army style vehicle speeding along Finns Road travelling towards Remembrance Drive and as it passed Woodbridge Road, the vehicle went off the shoulder of the road into gravel before correcting and continuing along Finns Road. Ms Haggarty turned right and was then following this vehicle. Both vehicles stopped at Remembrance Drive and then turned right. Ms Haggarty noticed that the driver of the other vehicle was a female. The army style vehicle continued to speed and by the Cawdor Road entrance was estimated to be about 500 metres in front of Ms Haggarty's car. She then described to Police what happened: - "I saw the army vehicle come onto the incorrect side of the roadway and drive straight towards an oncoming car. She was at least half of her vehicle on the wrong side of the road. The Army car hit the other car. I saw that it was a white 4WD utility and I saw that it swerved to the left but there was not enough time for the white utility to move and the collision occurred. The army car was still on the incorrect side of the roadway with half her car in the southbound lane. The army vehicle headed straight towards two other vehicles that were travelling south. The army vehicle was still speeding if not going faster than before."

16 Ms Haggarty approached the accused after Ms Pritchard had stopped and said "Excuse me do you realise that you just sideswiped this guy." She then described her observations to Police. "The lady looked at me blankly and looked out of it. She couldn't look at me. The lady got out of the car and stood next to her car swaying from side to side and staring out to space. She wasn't saying much except for "huh" and that speech appeared slurred. She seemed very disorientated and it didn't appear to know what was going on. I said, "Have you been drinking?" She didn't answer me. I told the lady that she was not allowed to get back into her car because she was intoxicated."

17 The Police arrived at about 12:15pm. Constable Jenkins first spoke to the de facto partner of the accused who told the officer that his ex wife was the driver of the jeep and that she had consumed sleeping tablets called Stilnox. Constable Jenkins then approached the accused who was lying on the ground with her eyes closed. The officer made some general enquiries about the health and wellbeing of the accused and received either no response or very limited and slow responses. When the constable asked the accused to produce her driving licence she sat still for about a minute and the constable repeated the request. The statement of Constable Jenkins then records: - "The accused very slowly looked up at me, and then very slowly looked down. The accused then very slowly picked up her handbag and slowly reached around inside the handbag and retrieved her purse. The accused very slowly opened the purse and then started to very slowly look through the contents. The accused by her actions looked to be in slow motion. The accused looked through her purse for a period of time that I believe to be not less than six minutes. As I watched her eyelids were drooping and she appeared to be tired. The accused appeared to be blinking in slow motion also. The accused did not say anything to me whilst looking through her purse. The accused also did not look up at me whilst looking through her purse." 18 Constable Jenkins formed the view that the accused was inebriated. The accused denied consuming alcohol or drugs. She was subjected to a breath test that returned a negative result. The officer noted that her eyes were glassy and her speech was slurred. The accused was then asked to undergo a sobriety test. Ms Pritchard took seven unsteady steps as though "walking on a tightrope" and then took about ten attempts before being able to complete the alphabet, "usually getting confused and tripping up about the H and I mark".

19 Ms Pritchard was arrested and taken to Camden Hospital for a blood and urine test. At the hospital the accused said to Constable Jenkins "I only had some sleeping tablets about midnight" When asked what she had taken she replied "Two Stilnox slow release tablets. I usually only have one." The accused told the officer that she woke up at 9am and her last meal had been a vindaloo curry at about 10pm the previous night. Although the accused appeared to be more alert and responsive she was still slow and appeared to think about the answers to the questions being asked by the Police.

20 An expert certificate from William Allender formed part of the Police brief of evidence. The following substances were found in the blood sample taken at the hospital; alprazolam, promethazine and doxylamine at 0.02 milligrams per litre and Zolpidem0.66 milligrams per litre. Mr Allender was able to conclude that Ms Pritchard's driving ability would have been impaired. He also reported "The blood concentration of Zolpidem is well outside therapeutic range (0.08-0.15mg/L) and indicates that a very large dosage had been ingested." Zolpidem is available under the trade name Stilnox. The other drugs found in the blood were within therapeutic range.

Defence of Automatism 21 The accused relies on the report of Dr Yolande Lucire dated 14 December 2009 to raise a defence of involuntary intoxication leading to non insane automatism. The conclusion of Dr Lucire is set out on page 12 of the report: - "This was an episode of sleep driving on Stilnox (zolpidem). She is open to Section 32 or an involuntary intoxication leading to non insane automatism defence. There was no intent. She did not know she was doing it. One cannot warn against somnambulistic behaviour."

22 Mr Levet in his submission said that upon service of this report on the prosecution the charges against Ms Pritchard should have been withdrawn. He relied upon the case of Youseff v R (1990) 50 A Crim R 1 saying that the defence had produced evidence from which it could be inferred that there is at least a reasonable possibility that the act was involuntary. The burden then shifts to the Crown to remove the reasonable doubt raised by such evidence by establishing that the act was voluntary. As the Crown called no further evidence, the defence was established and the accused was entitled to an acquittal. Mr Levet further submitted that Ms Pritchard did not even have to prove she was asleep in order to raise a defence of sleep driving. That to my mind is a most novel suggestion.

23 I do not accept those submissions. Hunt J recognised in Youseff (at p 2) that "the legal onus upon the Crown does not mean, however that the Crown must bring evidence to meet every such "defence" which could possibly arise in relation to the offence charged". At p 3 His Honour made these observations when referring to the evidentiary burden on the accused when raising a defence of accident or automatism: "The authorities make it clear that such a reasonable possibility must be shown by admissible evidence.... Others, and most Australian authority, are (in my respectful view) more in accordance with principle and logic, when they say that there must be evidence from which it could be inferred that there is the reasonable possibility that the act of the accused was of such a nature."

Accordingly the evidence must be admissible and capable of drawing the inference relied upon by the accused. The prosecution is entitled to rely on ALL of the evidence called and to challenge the inference to be drawn from the evidence called on behalf of the accused, without the necessity of rebuttal evidence either in chief or reply.

24 There is an added complication here that I raised with Mr Levet during his submissions. There is evidence that the accused took double her prescribed dose of Stilnox (2 tablets instead of 1) late on 16 October or early on 17 October before going to bed. Dr Lucire confirmed in evidence that the prescribed dosage was one tablet at night. This raises an issue of self-induced intoxication and s 428A Crimes Act 1900 provides: "self-induced intoxication means any intoxication except intoxication that: (a) is involuntary, or (b) …… or (c) results from the administration of a drug for which a prescription is required in accordance with the prescription of a medical practitioner , ….."

25 A defence of intoxication that is self-induced is not available where the offence charged is one of basic intent. I am satisfied that the offences the accused is charged with are offences of basic intent and that s 428D(a) Crimes Act 1900 applies (see s 428I Crimes Act 1900).

26 No doubt the defence would rely on Dr Lucire's conclusion of involuntary intoxication set out in her report. But Dr Lucire is not a legal expert. Indeed I asked Dr Lucire specific questions about the dosage prescribed for Ms Pritchard. Her answers were initially unhelpful. It is apparent to me that this was not an issue she had given any thought to, other than to record what she was told by Ms Pritchard about her consumption and to suggest that after taking two stilnox tablets at midnight, "It is likely that on that dose she was sleepdriving when she was apprehended" (at page 6). In fairness, the report indicates that Ms Pritchard is a "triple poor metabolizer of drugs metabolized by the CYP450 pathway" and would "be toxic soon on a full dose of drugs and more so if drugs competing for 2D6 were being co prescribed" (at page 11). But there is no conclusion in the report as to that toxicity and how it relates to the level of zolpidem in her blood on 17 October 2009. In cross-examination Dr Lucire said that the accused would have been metabolising poorly and there would have been a build up of toxicity in her system. That does not mean anything more than confirmation that the accused was under the influence of stilnox when driving.

27 Given the admissions made to Police and the very high level of zolpidem found in the accused's blood, self-medication by exceeding the prescribed dosage has been established beyond reasonable doubt. I reject the submission that the taking of two stilnox tablets by the accused was an involuntary act. Indeed Dr Lucire confirmed in cross- examination that Ms Pritchard took two tablets regularly and "that was her habit". Consequently the report of Dr Lucire cannot be relied upon to establish involuntary intoxication, because I find that the accused had taken the drug contrary to the prescribed dosage (s 428D Crimes Act 1900).

28 I also expressed some concern during submissions about whether or not the accused was sleep driving at 11:00am on 17 October 2009. Mr Levet objected to a question asked of Dr Lucire about how someone could be sleep driving at 11:00am and 6:30pm when it was clear Ms Pritchard was awake prior to her driving. He submitted that such a line of questioning was reversing the onus of proof. I rejected the objection. There is nothing in the evidence to suggest that Ms Pritchard fell asleep before leaving home. Dr Lucire suggested that this was a case where Ms Pritchard was somnambulistic all day. That conclusion is not supported by the evidence of waking at 9am and is a conclusion that it seems is based on the accused's amnesia. I have already set out above what Dr Moses says constitutes sleep driving. The facts of 17 October 2009 once again throw doubt on the conclusion reached by Dr Lucire and vary from all reported cases of sleep driving that I could find. In particular the time of day, the state of dress, and the distance travelled all depart from the usual facts associated with sleep driving.

29 In England, impaired, reduced or partial control by the defendant will not found a defence of automatism; see Attorney General's Reference (No 2 of 1992) [1993] 4 All ER 683 where Lord Taylor of Gosforth CJ said: "In our judgment, the 'proper evidential foundation' was not laid in this case by Professor Brown's evidence of 'driving without awareness.' As the authorities cited above show, the defence of automatism requires that there was a total destruction of voluntary control on the defendant's part. Impaired, reduced or partial control is not enough. Professor Brown accepted that someone 'driving without awareness' within his description, retains some control. He would be able to steer the vehicle and usually to react and return to full awareness when confronted by significant stimuli. Accordingly, in our judgment the recorder ought not to have left the issue of automatism to the jury in this case and the answer to the point of law as formulated is, 'No.'"

Likewise in Broome v Perkins [1987] Crim LR 271, the Court held that although the Defendant could remember nothing about a journey, as he was able to exercise some voluntary control over his movements, he had not been acting in an entirely involuntary manner. 30 Although the accused was clearly intoxicated in terms of her actions and responses and has no recollection of the events, that is evidence of impairment or intoxication and not sleep driving. She was able to steer, change gear, turn corners, stop at intersections and otherwise control the vehicle, albeit poorly in some instances. I accept that Ms Pritchard is a person of good character. Her lack of recollection is accepted as being truthful evidence. It does not mean that she was asleep on 17 October 2009 whilst driving.

31 I find that the accused was not sleep driving on 17 October 2009. The prosecution has established on all of the evidence that the actions of the accused were voluntary.

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