As at 10 July 2020, Brendon Paul Lidgard was:
1. 44 years old;
2. a long-term sufferer of Type 1 diabetes (since he was 17 years old);
3. the holder of a NSW heavy vehicle driver's licence (since November 2009); and
4. employed as a professional heavy vehicle driver by Boral Transport Limited.
Type 1 diabetes is a condition in which the pancreas is unable to produce sufficient insulin to maintain blood glucose levels.
Diabetics need to take insulin to chemically replicate the physical process of producing insulin.
Diabetics can only access insulin through prescriptions written by either a general practitioner or the relevant medical specialist (an endocrinologist).
At the relevant time, the administration of insulin was effected by injection - usually by the diabetic. Commonly, a diabetic, such as Mr Lidgard, would inject himself with a fast-acting insulin dose 3 times a day (before eating breakfast, lunch and dinner); and with a slower acting dose at night. Humalog is such a fast-acting insulin dose and Lantus is such a slower acting dose.
It is possible for a diabetic to "split" his evening fast-acting dose and to consume part of that dose between lunch and dinner - and to reduce the dinner dose accordingly.
When blood sugar levels drop below "normal", a hypoglycaemic event may occur.
Hypoglycaemic events can vary in severity. If very mild, there may be no detectible symptoms. If mild, symptoms may include feeling vague, palpitations, sweats, tiredness and not thinking clearly. These symptoms are easily recognised by diabetics. However, once a person has had Type 1 diabetes for approximately 15 years, it is not uncommon for that person to have hormonal changes such that he no longer has the usual (warning) symptoms of hypoglycaemia. This results in a condition called hypoglycaemic unawareness. This can cause the diabetic's blood sugar levels to get lower and lower without being recognised.
A severe hypoglycaemic event can result in a state of automatism - that is, the diabetic may superficially seem to be performing functions, even complex functions, such as appearing to be driving a motor vehicle, but he is not actually performing willed or purposeful acts.
Mr Lidgard suffered from hypoglycaemic unawareness as at 10 July 2020 but he had not been informed of the existence of that condition by his treating general practitioner, Dr Helme. (This is unfortunately but one of many examples of Dr Helme's "sub-optimal" treatment of Mr Lidgard's diabetes.)
On 10 July 2020, Mr Lidgard awoke in his home in Moss Vale in the Southern Highlands at about 4:20am. He had breakfast and 18 units of Humalog. He collected his truck (which was loaded with cement powder) from the Boral Cement Works outside Berrima at about 5:00am; and then drove to the Sydney suburb of Auburn, where he delivered that load. Mr Lidgard then reloaded his truck with cement powder at Clyde, after which he delivered that load to premises at Enfield. Mr Lidgard then returned to the Clyde depot and again reloaded his truck, after which he made a further delivery to premises at Granville. In the course of these deliveries, Mr Lidgard had his lunch at about 11:45am together with 18 units of Humalog.
After Mr Lidgard made the delivery at Granville, he began his return journey back to the Southern Highlands, which was mostly to be done by travelling in a southerly direction along the Hume Highway.
In the course of this return journey, Mr Lidgard refuelled his vehicle at Uncle Leo's Roadhouse at Glenfield. He arrived at that roadhouse at about 2:35pm and left at about 2:42pm. Whilst at the roadhouse, Mr Lidgard had a snack. He split his upcoming evening dose and took six units of Humalog.
27 kilometres south of the roadhouse was the Frank Partridge VC rest area, which is just off the Hume Highway near Menangle.
Also on 10 July 2020, Mrs Mary-Jane Miller (a pseudonym), her husband (Mr Joseph Miller - a pseudonym) and their 8 year old daughter (Mary-Therese Miller - a pseudonym) were travelling in their motor vehicle from Forster to Canberra. Mary-Therese's godparents, Mrs Mary Jones (a pseudonym) and her husband (Mr Ian Jones) were travelling with the Miller family, but in a separate motor vehicle to Canberra. These families had pulled into the rest area to use the facilities and have some afternoon tea. Their vehicles were parked side-by-side.
Also in the carpark of the rest area at that time was the motor vehicle of Mr Peter Moore. He was travelling with his mother, wife and two children. Mr Moore's vehicle was parked next to the Jones' vehicle.
At about 3:00pm on 10 July 2020 - and in circumstances to which I shall soon return - Mr Lidgard's vehicle left the highway and, at speed, entered the rest area where it collided with the passenger side of a parked tipper truck, a signage pole, a tree, and a covered seating area.
Mr Lidgard's truck then continued (still at speed) into the carpark area just as the Miller and Jones families were approaching their motor vehicles in preparation for leaving the rest area. Mary-Therese was at the rear of her parents' vehicle preparing to get into it when Mr Lidgard's truck impacted with that vehicle. The force of the impact caused the Miller vehicle to be pushed forcibly into the Jones' vehicle which, in turn, was pushed into the Moores' vehicle.
As a result of these successive impacts, Mary-Therese was killed and Mrs Miller, Mrs Jones and Mr Moore all sustained injuries.
After these impacts, Mr Lidgard's truck travelled for a short distance before coming to a stop in the carpark area.
At some time after he left Uncle Leo's Roadhouse, and before his truck left the Hume Highway and entered the rest area at speed, Mr Lidgard underwent a severe hypoglycaemic event which resulted in automatism, such that he was not, for a period of time before the impacts or at the time of the impacts, voluntarily involved in the management and control of the movement of his truck.
Mr Lidgard was subsequently arrested and charged in relation to that death and those injuries.
On 25 November 2021, Mr Lidgard was arraigned on an indictment dated 11 November 2021, being indictment …9.2.
There were four Counts on that indictment, namely that:
"…
1. on 10 July 2020, at Menangle in the State of New South Wales, [Brendon Paul Lidgard] did drive a motor vehicle, namely, a Mac B-double truck, registration BZ-93-SX (NSW) with a trailer attached, registration H-07113 (NSW), in a manner dangerous to another person or persons, whereby the vehicle was involved in an impact as a result of which the death of Mary-Therese Miller was occasioned.
…
2. on 10 July 2020, at Menangle in the State of New South Wales, [Brendon Paul Lidgard] did drive a motor vehicle, namely, a Mac B-double truck, registration BZ-93-SX (NSW) with a trailer attached, registration H-07113 (NSW), in a manner dangerous to another person or persons, whereby the vehicle was involved in an impact as a result of which grievous bodily harm was occasioned to Mary-Jane Miller.
….
3. on 10 July 2020, at Menangle in the State of New South Wales, [Brendon Paul Lidgard] did drive a motor vehicle, namely, a Mac B-double truck, registration BZ-93-SX (NSW) with a trailer attached, registration H-07113 (NSW), in a manner dangerous to another person or persons, whereby the vehicle was involved in an impact as a result of which grievous bodily harm was occasioned to Mary Jones.
….
4. On 10 July 2020, at Menangle in the State of New South Wales, [Brendon Paul Lidgard] did drive a motor vehicle, namely, a Mac B-double truck, registration BZ-93-SX (NSW) with a trailer attached, registration H-07113 (NSW), in a manner dangerous to another person or persons, whereby the vehicle was involved in an impact as a result of which grievous bodily harm was occasioned to Peter Moore."
These charges were the subject of a Judge alone trial before me which commenced on 15 March 2022. The evidence in that trial was given in three tranches: 15 March to 25 March; 23 May to 9 June; and 29 August to 5 September 2022 (on which latter date I reserved my decision and began my deliberations).
In my deliberations, the following general principles have been applied.
A critical part of our criminal justice system is that every person accused of a crime is presumed to be innocent of that crime - unless, and until, the Crown proves each element of the relevant Count on the relevant indictment beyond reasonable doubt. The words "beyond reasonable doubt" are ordinary, everyday words and that is how I shall apply them.
It is, therefore, not for Mr Lidgard to prove his innocence but for the Crown to prove his guilt to the high standard I have referred to.
I shall determine all relevant issues of fact according to the evidence - i.e., the oral testimony of witnesses and the contents of exhibits. During the course of the trial, it may have been apparent that I was familiar with, relevantly, the stretch of the Hume Highway from Campbelltown to the Frank Partridge VC rest area. I have consciously put that familiarity to one side and have relied solely on the evidence - although that familiarity would have had no meaningful, or any, impact on my assessment of the evidence in dispute.
In considering the oral evidence of witnesses, I have to consider whether the relevant witness gave an honest account and whether that witness gave an accurate account.
Moreover, I am not obliged to accept or reject the totality of the evidence of any witness. If there is a good reason, I can accept parts and rejects parts of the same witness's evidence.
Mr Lidgard did not give evidence in the trial. He was entitled to exercise his right to silence in that regard. No adverse inference will be drawn against him; and his silence will not be used against him in any way. Mr Lidgard did, however, participate in an electronically recorded interview with police. On that occasion, he voluntarily chose not to exercise his right to silence. I shall assess that evidence as I shall assess that of other witnesses.
In significant aspects, the Crown against Mr Lidgard involved the Court drawing inferences (adverse to him) from a combination of other proven facts.
Because this is a criminal trial in which I must be satisfied of the guilt of Mr Lidgard beyond reasonable doubt, I must be extremely careful at drawing any inference adverse to him. I must examine any possible inference to ensure that it is a justifiable one. Moreover, I must not draw any adverse inference from direct evidence unless it is the only rational inference in the circumstances.
Both the Crown and Mr Lidgard have asked that I have regard to s165 of the Evidence Act in relation to certain witnesses.
In the Crown's case, it requested such a direction in relation to the evidence of Mr Lidgard's sister concerning what she heard and otherwise observed at a consultation between Mr Lidgard and his general practitioner, Dr Helme, shortly after Mr Lidgard was released to bail - and at which she was present. In my opinion, there is nothing about her evidence which attracts the application of that section.
In Mr Lidgard's case, he requested such a direction in relation to two witnesses: Dr Helme; and a Justice Health nurse, Ms Nguyen.
Insofar as Dr Helme is concerned, his evidence was not generally inculpatory of the accused - largely because of the haphazard and incomplete manner by which he made contemporaneous notes at consultations with the accused; and a general (alleged) absence of any independent recollection of certain events. In this regard, for example, Dr Helme's inability to recall the matters discussed at the first consultation with Mr Lidgard after Mr Lidgard had been released to bail was, and remains, difficult to accept. I have also noted that Dr Helme's proof of evidence (such as it was) was a result of the assistance of others; and that he sought and obtained the benefit of a s128 certificate. To the extent necessary, I have given myself the statutory warning that Dr Helme's evidence may be unreliable.
Insofar as Ms Nguyen is concerned, I do not think such a warning is necessary. Ms Nguyen was a careful witness who made considered and appropriate concessions in her evidence. In her case, no such warning is required.
I have referred to the elements of the relevant Counts on the relevant indictment. There are five such elements.
First, that the accused was, at the relevant time, the driver of a vehicle.
Secondly, that that vehicle was involved in an impact (noting the uncontentious extended definition of impact).
Thirdly, at the time of the impact, the accused was driving the vehicle in a manner dangerous to another person or persons. Insofar as this element is concerned, even if a motor vehicle is not being driven dangerously at the precise moment of impact (which is the present case) "…a preceding period of driving in a manner dangerous may be so nearly contemporaneous with the impact as to satisfy this element of the offence" (cf Jiminez v The Queen [1992] 173 CLR 572 at 578 per Mason CJ and Brennan, Dean, Dawson, Toohey and Gaudron JJ). Furthermore, "[not]… only must the period be sufficiently contemporaneous with the time of the impact… but the driving during that period must be, in a practical sense, the cause of the impact [and the consequential death / or injuries]" (ibid). The emphases are mine.
Fourthly, at the time of driving voluntarily, the accused did not have an honest and reasonable belief that it was safe to drive.
Fifthly, the impact: in the case of Count 1, caused the death of Mary-Therese Miller; and, in the case of Counts 2, 3 and 4, caused grievous bodily harm respectively to Mary-Jane Miller, Mary Jones and Peter Moore.
As the evidence in the trial unfolded, there was no dispute as to the first and second elements and I am satisfied that the Crown has proved each of those two elements beyond reasonable doubt in relation to each of the four Counts.
Insofar as Counts 1 and 3 are concerned, as the evidence in the trial has unfolded, there was no dispute that the impact (or impacts) caused respectively the death of Mary-Therese Miller and grievous bodily harm to Mary Jones. I am satisfied, beyond reasonable doubt, that, in relation to that element in those Counts, the Crown has proved that element beyond reasonable doubt.
The elements which are in dispute are, for all Counts, elements 3 and 4; and, additionally, for Counts 2 and 4, element 5.
I shall turn to the first disputed element, ie. the third element.
In doing so, I have given particular attention to Exhibit L, which is a compilation of CCTV and various dashcam recordings made on the afternoon of 10 July 2020, together with a close examination of the evidence of Professor Carter (a distinguished endocrinologist who was called to give evidence in the Crown case).
Before turning to the details of Exhibit L, it is appropriate and necessary to repeat that, at 11:45am on 10 July 2020, Mr Lidgard consumed his lunch (some leftover Chinese food) together with 18 units of Humalog.
Exhibit L relevantly contains the following footage.
At 2:35:33pm, Mr Lidgard drove into the site of Uncle Leo's Roadhouse in order to refuel his vehicle.
At 2:35:57pm, Mr Lidgard got out of the by then stationary truck which was parked at a petrol bowser, and he entered the roadhouse.
At 2:40:45pm, Mr Lidgard appeared to purchase some food. He appeared to be holding one white bag. In his record of interview, Mr Lidgard said that it was his recollection that he had consumed two items of food at or about this time. What is not clear is, if there were two such items, whether both of them were in the one bag seen on the CCTV, or whether it contained only one item and another item had been consumed before or after that purchase.
At 2:41:47pm, Mr Lidgard re-entered the stationary vehicle.
At 2:42:36pm, the vehicle commenced to leave the roadhouse. It is noteworthy that:
1. there is no film footage of Mr Lidgard consuming any food at the roadhouse - were both items (if there be two items) consumed in the roadhouse or in the truck? or was one item consumed in the roadhouse and one item in the truck? or were both consumed in the truck?; nor is there any film footage of Mr Lidgard actually injecting himself with insulin. All that one can be confident about is that, if there were two items of food consumed at the roadhouse, they were consumed somewhere between 2:35:37pm and 2:42:36pm, i.e., between 24 and 17.5 minutes before the collision; and
2. the truck turned left onto a road which was not the Hume Highway.
At 2:43:41pm, the truck stopped at red traffic lights.
At 2:44:45pm, the truck merged onto the Hume Highway. Before this point, Mr Lidgard appeared to be skilfully in charge of the truck; however, from this point onwards, his driving became clearly erratic and, in that respect, deteriorated.
At 2:50:03pm, the truck passed the first Campbelltown turnoff.
At 2:52:23pm, the truck passed the second Campbelltown turnoff.
I pause to observe that, in Exhibit X (agreed facts pursuant to s191 of the Evidence Act 1995 (NSW)), at paragraph 26 and following, Mr Fikret Kolaric noticed Mr Lidgard's truck near one of those Campbelltown turnoffs or ramps. Mr Kolaric, a "short time later" (not more clearly defined), observed the truck to swerve into the left breakdown lane and for (the next) two to three kilometres to continually swerve thereafter from the left breakdown lane into the righthand lane. It was clear to Mr Kolaric that "something was wrong" (an expression which is usually not consistent with momentary inattention by the driver of a truck under observation) such that he, amongst other things, sounded his horn and flashed his lights to try to convey a warning to Mr Lidgard - but which didn't elicit a reaction or response.
Observations to similar effect were made by Mr Paul Fowler at paragraph 31 and following of Exhibit X.
At 2:53:07pm, the truck travelled underneath the Narellan Road overpass. The driving of the truck was highly erratic at that point, travelling substantially into the breakdown lane - and it did so frequently thereafter.
I further pause to observe that, in his ERISP, Mr Lidgard said that he had virtually no memory of the journey from about the point of the Narellan Road overpass. What memory the accused had of the journey from the roadhouse to this point was not the subject of any further questions or answers in the ERISP.
At 2:54pm, there was a 40 second mobile phone call between Mr Lidgard and his friend, Mr Fenwick. Mr Fenwick's evidence was that he (Mr Fenwick) did all the talking in that conversation after Mr Lidgard initially answered "Hello". After 40 seconds, the connection between the phones dropped out. Mr Fenwick's evidence was not challenged in that respect. I note that Mr Lidgard gave a slightly different version in his interview, in that he recalled being a participant in the conversation. At about the time of this "conversation", at 2:53:58pm and following in Exhibit L, the relevant dashcam footages showed the truck drifting into and out of the breakdown lane. After that call dropped out at 2:56pm, Mr Fenwick tried to call Mr Lidgard, but the call was not answered. I note that the Crown placed some significance on Mr Lidgard's recollection of (participating in) this conversation. However, that was not Mr Fenwick's unchallenged evidence. I am not satisfied, in fact, that Mr Lidgard did actively participate in that conversation, notwithstanding what he told the police in the recorded interview. As with his reference to cannabis use, I am not persuaded that, in either respect, he was being deliberately dishonest. Rather, in each respect, I am satisfied that there is a reasonable possibility that, as a result of the trauma of that day, together with lack of sleep, Mr Lidgard was genuinely confused on those topics.
At 2:59:39pm, the truck was largely off the highway and onto the shallow gutter beyond the breakdown lane. This was the worst deviation from the highway to date, but there had been continuous deviations since 2:44:55pm.
At 3:00:05pm, there were the impacts.
This now leads me to the consideration of some of the evidence of Professor Carter.
During the trial, Professor Carter gave evidence on a number of topics (some of which I have already incorporated at the beginning of these remarks when dealing with uncontroversial aspects of diabetes), including the circumstances immediately preceding the impacts, with particular attention given to:
1. the consumption, by Mr Lidgard, of 18 units of Humalog with his lunch at 11:45am;
2. the consumption, by Mr Lidgard, of 6 units of Humalog with the food consumed at Uncle Leo's Roadhouse; and
3. Mr Lidgard's manner of driving from his arrival to, and subsequent departure from, the roadhouse and the ultimate impacts at the Menangle rest area.
The salient aspects of Professor Carter's evidence on these topics were as follows.
A hypoglycaemic episode can be caused by excessive insulin (T1046:45).
As I have already said, a severe hypoglycaemic episode can result in automatism secondary to hypoglycaemia (a very infrequent condition) (T1071).
And, as I have already said, automatism is a state where (relevantly) a diabetic experiencing a severe hypoglycaemic episode may superficially seem to be performing even complex functions (such as appearing to drive a motor vehicle) but he is not actually performing willed or purposeful acts.
Mr Lidgard was suffering from automatism secondary to hypoglycaemia at the time of the impacts (T1072 and T1188) and for a period before the impacts (T1188).
Mr Lidgard had lunch at 11:45am, at which time he administered 18 units of Humalog (T1040:40).
Mr Lidgard may have had mild symptoms of hypoglycaemia at the time of his lunchtime meal (T1047:48; T1049:5).
Much - but not all - of the 18 units of Humalog administered at the time of the lunch meal would have "metabolised" by the time the 6 further units were administered at Uncle Leo's Roadhouse approximately 2 hours 15 minutes later, together with residual Lantus from the previous night (T1045:27; T1046:10; T1066).
In these circumstances, it was highly likely that the severe hypoglycaemic episode experienced by Mr Lidgard was, at least in part, related to the administration of 6 units of Humalog at the roadhouse (T1044:29; T1049:18; T1049:32; T1069:39) - or it was the major catalyst (T1189). However, later in his evidence, Professor Carter modified his opinion to state that the hypoglycaemia which resulted in the erratic driving seen on Exhibit L soon after Mr Lidgard left Uncle Leo's Roadhouse might be initially mainly due to the 18 units of Humalog administered at lunch, but that, at a later point along that journey, the hypoglycaemia was mainly due to the 6 units consumed at the roadhouse (T1189:44-1190:14).
It would never be actually known for how long before the impacts that Mr Lidgard's state of automatism secondary to hypoglycaemia existed - but Professor Carter's "best guess" was that it might have been "… perhaps even more than 15 minutes" (T1072:23). I again pause to observe that 15 minutes before the collision was 2:45pm - i.e., at about the time the accused's truck merged onto the Hume Highway, that being the point that his erratic driving clearly commenced - and 5 minutes before the first Campbelltown turnoff and 7 minutes before the second Campbelltown turnoff.
During Professor Carter's evidence in chief, Exhibit L was played (T1082ff), with interruptions for questions, for the purpose of obtaining with more specificity the witness's opinion as to when the automatism experienced by Mr Lidgard commenced (T1082:35).
At the interruption of the playing of Exhibit L at 2:53:43pm, Professor Carter said that, by what he had seen to that point, he could not extrapolate (my word) to automatism (T1082:45) - although he would say that the erratic driving was consistent with hypoglycaemia.
At the interruption of the playing of Exhibit L at 2:54:12pm, Professor Carter said that the portion observed in that tranche was consistent with automatism, but he couldn't say so definitively (T1083).
At the interruption of the playing of Exhibit L at 2:54:43pm, Professor Carter said that the observed portion in that tranche was consistent with automatism (T1083).
At the interruption of the playing of Exhibit L at 2:55:20pm, Professor Carter said his immediately preceding expressed opinion had not changed (T1083) - i.e., that what was seen was consistent with automatism.
At the interruption of the playing of Exhibit L at 2:59:49pm, Professor Carter said that the degree of hypoglycaemia was greater than before (T1088).
Once the whole of Exhibit L had been played, Professor Carter said (T1091) that Mr Lidgard was totally unaware of what he was doing during the viewed footage. At that point in his evidence, there was some ambiguity (in my mind) as to whether he was referring to the last tranche of viewed material, or to the totality of Exhibit L from when the truck merged onto the Hume Highway. The next day, Professor Carter made it clear that his reference to Mr Lidgard being totally unaware of what he was doing existed from just prior to the Narellan Road overpass (i.e., proximate to the Campbelltown exits) to the moment of collision (T1099:5).
During his cross-examination in connection with this question of automatism, Professor Carter stated that it would not be possible by viewing a compilation of dashcam footage of the kind in Exhibit L to "pinpoint the exact moment where the driver entered into an autonomic state" (T1191:45). He went on to give this evidence:
"Q. But given that this is a criminal case, the relevant question here is whether you can rule out a possibility that he was in an autonomic state for a period for that driving that you saw?
A. Yes.
Q. Clearly, by virtue of the evidence that you have given, you can't rule out the possibility that he was experiencing automatism in that period of driving leading up to the entry into the rest area?
A. No, I can't".
The Crown has fairly conceded that there was a point in time where, before the impact(s), the accused was not acting / driving voluntarily. The Crown, however, has submitted that it has proved beyond reasonable doubt that the onset of automatism secondary to hypoglycaemia was closely proximate in time to the impacts, viz. about 2:59pm (T1560:10).
However, in my opinion, looking at the totality of the evidence I have just reviewed, the Crown has not excluded the reasonable possibility that Mr Lidgard was in a state of automatism from: (a) the time Mr Lidgard's truck merged onto the Hume Highway; (b) the time of the observations made by Mr Kolaric and Mr Fowler (necessarily either at 2:50:03pm or 2:52:23pm, depending to which of the two Campbelltown offramps each was referring); or (c) just prior to the Narellan Road overpass.
Further, in relation to each of those reasonable possibilities, I am not satisfied that the "driving" before each such possibility was relevantly contemporaneous with the subsequent impacts by having regard, not only to the relevant lapse of time, but also the significant distance involved; nor am I satisfied that the voluntary driving before each such possibility was, in a practical sense, the cause of the impacts.
However, if I am wrong in concluding that the period of voluntariness was not "so nearly contemporaneous", but rather was sufficiently contemporaneous, or, alternatively, it was in a practical sense the cause of the impacts, the next aspect to consider is: was that driving, in the period immediately preceding the loss of consciousness, dangerous?
This is an objective test.
In order for the driving to be dangerous, "there must be some feature which is identified not as want of care, but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention" (see Jiminez op. cit. at 579).
The Crown contends that, in three respects - both individually and taken together - the manner in which the accused drove on that day, before the period of automatism, was dangerous.
First, he suffered from hypoglycaemic unawareness (his lack of knowledge being irrelevant in this context). This is not in dispute.
Secondly, he was taking three doses of Humalog at 18 units per dose, and which was not the subject of express medical advice. Insofar as this contention is concerned, I am not satisfied of the evidentiary basis for the submission. Rather, in my opinion, there is a reasonably available inference that Mr Lidgard's general practitioner, Dr Helme, was aware of, and at least acquiesced in, Mr Lidgard administering doses of Humalog at that level. I also note that Professor Carter was of the opinion that 18 units of Humalog was closer to Mr Lidgard's actual mealtime requirements to maintain blood sugar levels in a healthy range. The correctness of this opinion was graphically demonstrated by what happened to Mr Lidgard when he was (for a period) in custody after his arrest and when the prison authorities relied on the incomplete and unreliable information from Dr Helme's practice and administered 12 units of Humalog three times a day to Mr Lidgard.
Thirdly, splitting his dosage by taking 6 units of his evening dose at Uncle Leo's Roadhouse was dangerous in a number of respects. (I pause to observe that, on this topic, I am not persuaded that Dr Helme was unaware (or, if aware, disapproved) of Mr Lidgard splitting his dose. On this topic, I accept without reservation the evidence of the accused's sister. Ms Lidgard was an impressive witness. She was also a careful witness. Her use of the word "splitting" could not, as the Crown has submitted, reasonably be confused with "variation".)
It is not insignificant to note that Professor Carter was of the opinion that, in certain circumstances, splitting an insulin dose between (main) meals was "… an acceptable way of managing diabetes" (T1038:31) if, for example, in between (main) meals, the imminent consumption of "…a lot more carbohydrates…" was anticipated (but not the consumption of alcohol some hours later).
But in Professor Carter's opinion, it was fundamental to splitting a dose in that fashion and in that context that there be a level of certainty as to what a patient's blood glucose levels were. Two passages of his evidence in this regard are important:
"A.
… If [the patient] had past experience with adjusting the insulin by a certain amount for a certain amount of alcohol and [the patient] knew that the blood glucose levels subsequently were then satisfactory, it would be quite reasonable to do that. But critical to the operating on past experience backed up by scientific data, that is blood glucose levels" (T1037:8); and
"Q. What if the person doesn't have a history of any record-keeping such that they would know what their likely reaction is going to be?
A. Certainly would not be recommended and it would be dangerous" (T1039:7).
Although Mr Lidgard gave evidence (in his ERISP) of splitting his doses two to three times a week (something that I am not satisfied that Dr Helme did not know about), he did not regularly test his blood sugar levels (again, something I am not satisfied that Dr Helme did not know about) and he did not test those levels on 10 July 2020. I am satisfied however that he was aware he ought to have been doing so.
Mr Lidgard, through his senior counsel, has submitted that, by reference to the 20 circumstances identified during submissions (T1703-1720), Mr Lidgard's driving, before the state of automatism, was not objectively dangerous. In that constellation of 20 matters, the consideration of dose splitting was the fourteenth consideration.
Ultimately, however, senior counsel for Mr Lidgard submitted that the question of dangerousness was reduced to the "single circumstance" that Mr Lidgard split his evening dose and took 6 units of Humalog between his lunchtime and evening meal without first taking or checking his blood sugar level (T1720):
"…What that circumstance indicates is that the accused could have taken greater care or managed his diabetes in a better way on that particular day.
Putting it another way, that his diabetes control was sub-optimal on that day but that is not sufficient to establish dangerousness - the legal test of dangerousness".
Applying an objective standard, however, in my opinion, that circumstance (in the context of suffering from hypoglycaemic unawareness) was of such significance and importance that it was a "serious breach of the proper management and control of the vehicle and that it subjected other persons to a real and substantial and significant risk of injury and death over and above that ordinarily associated with the driving a motor vehicle, including driving by persons who may on occasions drive with less than due care and attention".
The Crown has, therefore, proved beyond reasonable doubt that the driving before the state of automatism was dangerous.
The next matter for consideration is whether the Crown has excluded the reasonable possibility that Mr Lidgard had an honest and reasonable belief that it was safe for him to drive.
The Crown challenges the honesty of Mr Lidgard principally by pointing to his answers in the interview with police concerning his cannabis use in the days immediately before the accident. Mr Lidgard was tested for illegal drug use immediately after the accident at the Campbelltown Hospital and no illegal drug (and specifically cannabis) was detected. The only rational inference in those circumstances is that Mr Lidgard had not consumed cannabis at any relevant period before the impact.
I do not regard his inconsistent statements in this respect to the police (or, for that matter, to nurse Nguyen - which, in her case, I am satisfied he did make; she was an experienced nurse and a careful and impressive witness) as evidence of any dishonesty on the part of Mr Lidgard. Apart from that one matter, his demeanour in the interview with police was positively impressive considering the tragic circumstances in which he found himself. As I have already said, I am not satisfied that his answers on this topic were deliberately dishonest. What advantage or benefit would he gain from deliberate dishonesty on this topic? Rather, I think it a reasonable possibility that his answers to the police and nurse Nguyen on that topic were the result of trauma and exhaustion and consequent confusion.
Insofar as reasonableness is concerned, I make the following observations.
First, the Crown has not excluded the reasonable possibility that Dr Helme was aware and approved of Mr Lidgard using 18 units of Humalog three times a day as at July 2020; nor has it excluded the reasonable possibility that he approved the accused splitting his daily doses in the manner that he did on that date - and more generally.
Secondly, Mr Lidgard had been assessed by Dr Helme as fit to drive year after year after year and Mr Lidgard was reasonably entitled to rely on that assessment.
Thirdly, similarly, Mr Lidgard had been assessed as fit to drive by Dr Tait, on behalf of the accused's employer, as being fit to drive and Mr Lidgard was entitled to rely on that assessment.
Fourthly, the RMS, having received the reports from Dr Helme as to the Mr Lidgard's fitness to drive, continued year after year to issue the relevant licence. It was reasonable for Mr Lidgard to rely on the issuing of the licence. It would not have been reasonable to expect Mr Lidgard to know that the licences were issued by the RMS in contravention of national standards.
Fifthly, Mr Lidgard's only prior major hypoglycaemic event occurred more than 20 years before July 2020 and the last significant hypoglycaemic event occurred 6 years before the accident in July 2020. Mr Lidgard had no major, or any, traffic incident as a result of hypoglycaemia.
Sixthly, Mr Lidgard had not been advised of hypoglycaemic unawareness.
Seventhly, by 13 August 2019, Mr Lidgard (and notwithstanding the repeated failures of others) did become aware of the need for specialist involvement in connection with the holding of his type of licence. This awareness came about, not as a result of information provided to Mr Lidgard by his general practitioner (who was the only person providing advice and care on the question of his diabetes), but as a result of a consultation which Mr Lidgard had with Dr Tait (on behalf of Mr Lidgard's employer). According to the note made by Dr Tait following that meeting (Exhibit AA, pages 206 and 207), Dr Tait became aware that Mr Lidgard was not seeing an endocrinologist for the annual driver's assessment. Dr Tait also became aware that Mr Lidgard was to that point unaware of the need for such an assessment. According to the note, Dr Tait explained why it was necessary and recommended that Mr Lidgard follow this matter up with Dr Helme. Somewhat remarkably, Dr Tait did not himself contact Dr Helme directly concerning this serious medical issue, but rather left it to the patient to do so. Dr Tait then even more remarkably completed the necessary paperwork, in effect completely ignoring what he had been told by the patient and the applicable standards. Some attention was given during submissions to the fact that Mr Lidgard had not immediately deployed the referral given to him by Dr Helme dated 22 August 2019 to Dr Rajagopal, an endocrinologist. However, no sense of urgency in any such assessment was conveyed to the accused by Dr Helme or Dr Tait or any other medical practitioner. There is no reason to doubt that, if such a sense of urgency had been conveyed, Mr Lidgard would have complied - as he did with respect to other specialists. Moreover, it must have been Mr Lidgard who raised the need for a review with an endocrinologist with Dr Helme following the consultation with Dr Tait on 13 August 2019. This is not consistent with a person deliberately seeking to avoid professional advice and assistance, as the Crown submitted.
Eighthly, I have had regard to the limited good character direction the subject of earlier submissions and a ruling.
I otherwise generally accept the 20 circumstances relied on by the accused in a different (but additional) context at T1703 to T1720.
In the result, the Crown has not negatived, beyond reasonable doubt, an honest and reasonable belief on the part of the accused that it was safe for him to drive.
Given my previous conclusions, I shall now only very briefly consider the two remaining issues: that is, whether the injuries sustained by Mrs Miller and Mr Moore amounted to grievous bodily harm.
Grievous bodily harm is a really serious (but not necessarily permanent or life threatening) bodily injury - the assessment of which may involve questions of fact and degree.
The evidence concerning Mrs Miller's injuries are set out in Exhibit Y.
As a result of the impact, Mrs Miller sustained:
1. a laceration to the right eyebrow;
2. a fracture to the right femoral shaft (i.e., the long straight part of the thigh);
3. a fracture of the left tibial plateau (i.e., the lower leg below the knee);
4. a dislocation / multi-ligament injury to the left knee; and
5. an open wound to the left knee.
Mrs Miller was required to undergo surgery on 11 and 22 July 2020. She was discharged from Liverpool Hospital on 6 August 2020 at which time she went to the Forster Private Hospital Rehabilitation Unit where she remained until 17 September 2020.
On Mrs Miller's discharge from the rehabilitation unit she was noted to have made "excellent progress with marked improvements in function and mobility" - but she had not made a complete recovery. There is no evidence as to her long-term prognosis.
In these circumstances, I am satisfied, beyond reasonable doubt, that the injuries sustained by Mrs Miller were really serious bodily injuries sufficient to meet the definition of grievous bodily harm.
The evidence concerning Mr Moore's injuries, at least the expert medical evidence, was succinct.
Mr Moore was also taken to Liverpool Hospital where he came under the care of Professor Harris, a distinguished orthopaedic surgeon.
In an expert report, part of Exhibit Z, Professor Harris noted that, as a result of the collision, Mr Moore sustained multiple lacerations to his right arm. Those lacerations consisted of two full-thickness lacerations over the front of the arm around the region of the elbow (measuring between 4 to 6cm) and a third laceration in the mid-forearm (measuring 5cm).
These wounds were deep and extended to the underlying bone.
Mr Moore was treated surgically on 12 July 2020 - to the extent that these three wounds were cleaned and closed with sutures.
It would seem from the discharge referral (dated 13 July 2020) that, in addition to those lacerations, Mr Moore also sustained some rib fractures without any complications.
The discharge referral, amongst other things, recommended:
1. that Mr Moore see his general practitioner within 2 to 3 days;
2. use a right-arm sling for comfort; and
3. be reviewed by Professor Harris on 20 July 2020.
Exhibit Z also contains a final report dated 20 July 2020 prepared by Professor Harris.
In addition to the lacerations noted in the discharge referral, the final report noted complaints by Mr Moore of instability to the left thigh and knee - but that, on examination, there was no weakness or effusion and there was full range of movement.
The final report made no reference to the ribs.
Mr Moore was again discharged back to his general practitioner.
Professor Harris gave oral evidence in the trial which did not significantly expand upon any of these documents.
There was no other expert medical evidenced adduced in the Crown case.
I note that a great deal of time was devoted to Mr Moore's oral evidence as to his perception of his alleged injuries. In the absence of further admissible expert evidence, I did not find that evidence of assistance.
I also note there was significant challenge to the credit of Mr Moore. Given the conclusion I have reached as to what the medical evidence establishes (or what it does not establish) and given the possibility that the question of Mr Moore's credit may be raised in other proceedings, I decline to make any findings on this issue.
In the result, the Crown has not persuaded me, beyond reasonable doubt, that the injuries sustained by Mr Moore constitute grievous bodily harm.
For these various reasons, Brendan Paul Lidgard I find you Not Guilty of each of the 4 Counts on the indictment.
Before adjourning there are some additional remarks I wish to make. I earlier referred to the fact that this Judge Alone Trial proceeded by three tranches of evidence. In this regard, I have been conscious of the dicta in Toohey v R [2020] NSWCCA 166.
Mr Lidgard was first arraigned before me as the then List Judge at Campbelltown on 25 November 2021, at which time he pleaded not guilty to each Count on the indictment. The Court was told on that occasion that the estimate for the trial would be 10 days. I note that any trial in excess of 10 days in the Campbelltown Registry was to be transferred to the Downing Centre. Having received that estimate, I then specially fixed the trial before me on 14 March 2022 (and closed off the short matters diary for that fortnight).
At a readiness hearing on 3 February 2022:
1. consent orders were made that the trial proceed by Judge alone; and
2. the estimate of 10 days was confirmed.
At a callover on 24 March 2022, the estimate of 10 days was again confirmed.
I was unable to commence the Judge Alone Trial on 14 March 2022. The matter was mentioned before Baly SC DCJ on that date. Her Honour stood the trial over to the following day, 15 March 2022. The parties confirmed to her Honour that the estimate remained 10 days. This was the 4th occasion that estimate was provided to the Court by both parties.
The Judge Alone Trial commenced before me on 15 March 2022. It did not finish within the 2-week estimate. It was adjourned on 25 March 2022 for further hearing on 23 May 2022. An estimate of a further 3 weeks had been given by both parties for that resumed hearing and, accordingly, the short matters diary was again closed off for that period.
The second tranche of the hearing was also not completed within the estimated time. Rather, it was adjourned on 9 June 2022. In this context, I note that, on 10 June 2022: I, at my request, ceased to be rostered at the Campbelltown Registry; commenced four weeks leave; and thereafter resumed sitting in the Parramatta Registry.
The third tranche commenced on 29 August 2022 and concluded on 5 September 2022.
In order to properly understand the administrative difficulties the conduct of this Judge Alone Trial caused the Court, I draw attention to T18:23-19:9 which I incorporate by reference.
In the administration of its work, the Court is entitled to receive more assistance than was provided to me concerning the trial estimate in this matter. Even now, I cannot understand how an estimate of two weeks was ever given for this Judge Alone Trial - let alone persisted with up to and including the first day of the Judge Alone Trial.
There is one final matter I wish to say today.
To the extent that there may be further steps to be taken in this matter, these proceedings are listed before me for mention at 9:30am on 17 October 2022 - all appearances may be by AVL. Mr Lidgard is excused if legally represented.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 17 October 2022