R v Ross GILLETT

District Court of NSW|2004-11-02

HEARING DATE(S): 2 November 2004 - 25 November 2004

DECISION: I find the accused guilty on each of the three counts

CATCHWORDS: Criminal law - Judgment and verdict - Judge alone trial - Dangerous driving causing death - Voluntariness - Epilepsy

LEGISLATION CITED: Criminal Procedure Act 1986 Mental Health Act 1990

Broome v Perkins(1987) 85 Cr. App.R 321 Jiminez v The Queen (1992) 173 CLR 572 CASES CITED: McBride v The Queen (1965) 115 CLR 44 R v Parks [1992] 2 SCR 871 The Queen v Falconer (1990) 171 CLR 30 Vallance v The Queen (1961) 108 CLR 56

PARTIES: The Crown Ross Gillett

COUNSEL: W G Roser - The Crown W C Barber - The Accused

SOLICITORS: NSW DPP Ian Rolfe Solicitor

1 On 2 November 2004 the accused Ross Gillett was called for trial. An indictment containing 3 counts was presented. Each of those counts alleged that the accused had driven his motor vehicle in a manner dangerous to other persons, whereby his vehicle was involved in an impact, as a result of which a named person was killed. The 3 counts each related to the death of a different member of the Howie family: Cameron Douglas Howie, Shannon Anne Howie and Michaela Howie.

2 At about 4.45pm on 2 May 2003 the accused was driving a new Toyota Avalon sedan in a northerly direction along Condamine Street at Manly Vale. The weather was fine, the road was dry and it was still daylight. Condamine Street is a major road and traffic was moderate to heavy. As the accused approached the corner of Condamine Street and Campbell Parade, traffic lights facing him changed from green to amber. The car in front of his was driven by Dr Currie who slowed her vehicle intending to stop at the traffic lights. The accused's car ran into Dr Currie's car with such force that her car spun and was pushed into the middle of the intersection.

3 The accused did not stop after this collision. He continued along Condamine Street towards the intersection of Kentwell Road. The traffic in front of him had banked up, a common occurrence because of the traffic lights at the intersection of Condamine Street and Kentwell Road. The car immediately in front of the accused's was a green Mitsubishi Lancer driven by Cameron Howie with his wife Shannon Howie in the front passenger seat and their young daughter, Michaela Howie in a child's car seat in the back. The accused's car ran into the back of the Howies' car forcing it not only forwards but also to the right, across the median strip and into the path of oncoming traffic. One of the oncoming vehicles was a 4-wheel drive Nissan Patrol driven by Mr Michael Fuller. He was travelling at about 60 kph, that being the speed limit. There was nothing he could do to avoid colliding with the Howies' car. The force of the impact between Mr Fuller's 4-wheel drive and the much lighter Mitsubishi sedan was enormous. The smaller car was destroyed, killing all 3 members of the Howie family.

4 So far I have described the accused's car's collision with 2 vehicles, Dr Currie's at the corner of Campbell Parade and the Howies' car a short distance down Condamine Street. Despite those 2 collisions, still the accused did not stop. He continued along in a northerly direction until he collided with yet another car, this a Toyota Corolla driven by Mr Peter Wiebe. The accused's car, having pushed the Howies' car out of the way, had continued on until it collided with the rear of Mr Wiebe's car. Finally the accused's vehicle came to a stop.

5 It is common ground that the circumstances of these collisions bear a striking similarity with something that happened 10 years earlier.

6 On 3 August 1993, at about 7.40am Bettina Hogerzeil was driving to work in her Toyota Corolla. She was in the median strip lane, she said in Pittwater Rd, but it was more likely Condamine Street. There was a yellow Suzuki Sierra in the kerbside lane in front of her. She saw a white Magna, which was being driven by the accused, crash into the Suzuki and run it off the road.

7 Mr Dennis Kannard was the driver of the yellow Suzuki. He remembers that as he approached Kentwell Rd the traffic was slowing down for the traffic lights. Suddenly he was bumped "pretty hard" from behind. Mr Kannard had to accelerate to get away as his car was being pushed from behind. Mr Kannard managed to pull up on the left hand side of the road and got out of his car. He saw the car that had run into his car continue on and hit the last car in the line of traffic stopped at the red lights, that being the car driven by Ms Hogerzeil.

8 After seeing the collision between the white Magna and the yellow Suzuki, Ms Hogerzeil had continued along the road, remaining in the median strip lane. She then stopped at a set of traffic lights, probably at Kentwell Road, and in her rear view mirror she saw the Magna heading towards the rear of her car. She realised that the Magna was not going to stop and was on course to hit her car, which it did. She saw the accused before the collision - his head was down on the steering wheel. This collision forced her car forward into the rear of the car in front of her.

9 Senior Constable Paul Breden attended the scene of the accident and issued 2 infringement notices against Ross Gillett.

10 The accused's case is that shortly before the collisions on 2 May 2003, which have led to the charges he now faces, he suffered a fit or seizure which meant that his actions were involuntary, and so the real issue in this case is whether the Crown has proved beyond reasonable doubt that the accused was acting voluntarily at a relevant time. In order to determine this issue 3 particular questions have to be answered because the Crown has put its case in 3 ways.

11 The Crown's primary position is that the accused suffered no fit or seizure or other similar medical event at any time during the course of his driving that afternoon. If I were to be satisfied beyond reasonable doubt that that was the case then I would find that the accused was driving voluntarily and therefore, in the circumstances of this case, find the accused guilty on each of the 3 counts.

12 However, in the event that I was not satisfied that the accused had not had a fit or seizure the Crown nevertheless says that I would still find that the accused was driving voluntarily. If I were to conclude that there is a reasonable possibility that the accused suffered a complex partial seizure or other episode which affected his consciousness, the Crown nevertheless says that given the accused's awareness of what he was doing and ability to control his motor vehicle, I should still find beyond reasonable doubt that the accused was driving voluntarily that afternoon.

13 The Crown has a third way of putting its case. I would consider this alternative in the event that I was not satisfied beyond reasonable doubt that the accused was driving voluntarily in the time immediately preceding the collision with the Howies' car. The third alternative I must consider is whether, at a time shortly before the collision, when the accused was driving voluntarily, he nevertheless was driving dangerously because of the risk that he would suffer a fit or seizure such that he was unable to control his car. If that is so, then the Crown must also prove that the accused did not believe on reasonable grounds that it was safe for him to drive that afternoon. The Crown will therefore have proved its case on this issue if it proves that the accused was driving dangerously because of the risk that he would suffer a seizure and either the accused did not believe that it was safe for him to drive or there were no reasonable grounds for him to have that belief.

14 When I refer to the accused's belief as to whether it was safe for him to drive, I am using the word "safe" as an antonym to the concept of dangerousness as it appears in the offences on the indictment. That means that the Crown has to prove beyond reasonable doubt that the accused did not believe on reasonable grounds that his driving subjected another person or persons to some risk, over and above that associated with the driving of a motor vehicle, including driving by people who may, on occasions, drive with less than due care and attention. The risk I am speaking of here is not some fanciful risk, but so serious a risk as to be in reality, and not merely as a matter of speculation, potentially dangerous to other people on or near the road.

15 At the risk of repetition I will summarise therefore the 3 questions at the heart of the voluntariness issue: * Am I satisfied beyond reasonable doubt that the accused had no form of fit or seizure which would affect his level of consciousness. If I make that finding beyond reasonable doubt I need not go further. However if I am not satisfied beyond reasonable doubt of that matter I will therefore consider the second issue at the heart of this case. * Even if the accused may have suffered a fit or seizure, am I satisfied beyond reasonable doubt that he was nevertheless driving voluntarily? If I am satisfied beyond reasonable doubt that the accused was driving voluntarily immediately before colliding with the Howie's car then I need not go further. If however if I am not so satisfied I will consider the third issue at the heart of this case. * Has the Crown proved beyond reasonable doubt that at a time the accused was acting voluntarily he drove dangerously to other persons and he did not believe on reasonable grounds that it was safe for him to drive or to continue driving.

16 If I were to find the accused not guilty there may be an issue as to what form that verdict should take - either simply "not guilty" or "not guilty on the grounds of mental illness". The Crown suggested at the beginning of the trial that a verdict of not guilty on the grounds of mental illness may be open. I note that the question as to whether epilepsy is a "disease of the mind" seems to have been ignored during the evidence and no submissions were made at the end of the evidence concerning the possibility of verdicts of not guilty on the grounds of mental illness. Nevertheless, because both the Crown and Mr Barber have raised the possibility of that outcome, I must do certain things.

17 Section 37 Mental Health Act provides that, if a jury were hearing this matter, I would have to tell the jury certain things. Section 133 Criminal Procedure Act requires that I include in this judgment the principles of law I have applied and that I take into account any warning to be given to a jury. I am not at all convinced that that section requires me to tell myself, as the tribunal of fact, things I already know. I doubt that the matters required under section 37 Mental Health Act are "principles of law" and I am certain that they are not "warnings". But just in case I am required to note the matters referred to under section 37 Mental Health Act, I will set them out now.

18 If my verdicts were "not guilty on the grounds of mental illness" I must order that the accused be detained in custody. Once there he comes under the supervision of the Mental Health Review Tribunal. That tribunal is composed of a lawyer, a psychiatrist, and another suitably qualified person.

19 That tribunal has as one of its functions the job of supervising the treatment and custody of people who are found not guilty on the grounds of mental illness. It could recommend his release from custody if it was satisfied that the safety of the accused or that of any member of the public would not be seriously endangered by his release.

20 If there is such a recommendation, then the Minister for Health must notify the Attorney-General and the Director of Public Prosecutions. If the Attorney-General makes no objection to a recommendation for release then an order for the accused's release can be made. The Minister for Police and Emergency Services is informed of the date of any such release.

21 Thus, if I were to find the accused not guilty on the grounds of mental illness the accused would not be released immediately. Instead he would be kept in custody until the Mental Health Review Tribunal is satisfied that his safety or the safety of the public would not be seriously endangered by his release.

22 If release is ordered, then it may be on conditions - things he must do or things he must not do. On breach of a condition, or where the mental condition of the accused has deteriorated so that he may be a serious danger to others a further order may be made for his apprehension, care and detention.

23 I will return to the issue as to what form of not guilty verdict is appropriate only if the Crown has failed to prove the guilt of the accused beyond reasonable doubt.

24 What I will do now is to set out some more preliminary matters before returning to the resolution of the issues in dispute.

25 I will determine all relevant issues of fact according to the evidence. The evidence in this case of course is made up of what has been said by the witnesses and the exhibits which have been tendered.

26 During the trial, it may have become apparent that I have some familiarity with the relevant area. I have, however, put my local knowledge to one side and relied instead on the plans, photographs and video to inform me as to the geography of the roadway. I have not travelled along any of the relevant roads since the trial began.

27 If I were hearing this case with a jury I would instruct them that they are to ignore feelings of sympathy in deciding whether or not the accused is guilty of the 3 charges he faces. Judges are not immune to feelings of sympathy. There were many poignant moments in this trial. I have recognised them, recognised their effect upon me and then put those feelings to one side. Both the Crown and the accused are entitled to my judgment free from prejudice and sympathy.

28 It is undeniable that a terrible thing happened on 2 May 2003, and there may be a tendency to think that "someone must pay". Such thoughts have also been put aside.

29 Also irrelevant are any concerns I might generally feel regarding those epileptics who drive motor vehicles. The decision I have reached in this case is based on the law and the facts presented in this case. I have ignored any thoughts as to the consequences of my decision for road users who are epileptics and road users who are not.

30 The most important and fundamental principle of law which I will apply concerns the onus and standard of proof. Because this is a criminal trial, the burden of proving the guilt of the accused is placed firmly upon the Crown. The accused starts from the position that he is presumed innocent and that presumption continues until the Crown satisfies me beyond reasonable doubt that he is guilty.

31 What the Crown must prove and prove beyond reasonable doubt are the ingredients or essentials facts contained in the charges arising from the indictment. I will indicate what the ingredients or essential facts arising from the charges on the indictment are in a little while.

32 I heard evidence that the accused exercised his right to silence when he declined to be interviewed, although when he went to the police station with his solicitor he did comply with his obligations as a driver who had been involved in a motor vehicle collision.

33 No adverse inference can be drawn against the accused from the fact that he declined to be interviewed. I will not use that fact against him in any way at all.

34 Mr Barber relied on what he said what was evidence of the accused's good character, including his driving record which Mr Barber said was evidence that he was generally a careful driver. There is much to be said in favour of the accused's character. For example he was awarded the Order of Australia, and performed voluntary work with the Australian Volunteer Coast Guard.

35 In his final submission Mr Barber said that the evidence established that the accused was highly regarded by his peers, and that he held a senior and responsible position in the Navy.

36 Of course good character can be taken into account in 2 ways. I should firstly consider its effect upon the likelihood that the offender committed these offences. I should also take into account that people of good character are, generally speaking, less likely to lie than people of bad character and so the evidence of the accused's good character makes the accused's evidence, and what he said before, more likely to be true.

37 However the evidence as to the accused's character was not all one way. He could not be said to have an unblemished traffic record. I have seen many worse driving records, but I have also seen many better.

38 As far as the credibility of the accused is concerned the Crown relied on a number of lies, and significant lies, told by the accused in relation to his medical condition.

39 Exhibit J contains the application for licence renewal filled in by the accused on 29h July 2000. The form contains a number of questions which the applicant answered by ticking either "no" or "yes". By that means the accused answered "no" to the following 3 questions: * "have you ever had any type of epilepsy", * "have you ever had attacks of giddiness, blackouts, fainting, or other sudden periods of unconsciousness" * and perhaps less importantly "do you have any medical or mental disabilities which may affect your driving".

This is in spite of the accused declaring, by way of his signature,

"that the information provided in this application is complete, true and correct in every detail".

40 The lies on the 2000 licence renewal are entirely consistent with the similar form filled in by the accused in 1995. There again he denied ever having any type of epilepsy and attacks of giddiness, blackouts etc. Thus the accused told repeated lies, and significant lies, about his condition when renewing his driver's licence.

41 Similar lies can be seen in Exhibit G which shows what the accused told his employer. And even the accused's work with the Australian Volunteer Coast Guard, on which he relies as evidence of his good character, led to the revelation of more lies told by the accused concerning his medical condition, this time as part of his application for, and renewal of, his boat licence.

42 As far as the accused's character is concerned those falsehoods suggest that he is prepared to tell lies, and tell them repeatedly in order to advance his own interests. He wanted to drive, he wanted to work, and he wanted to perform work with the Australian Volunteer Coast Guard and he was prepared to tell repeated lies to avoid any investigation which may have led to him being unable to do those things. It is of note that one of the most easily accepted pieces of evidence given by the accused was when agreed that: "at any time you perceive there's an advantage, you will lie for your advantage?"

43 Because of the repeated lies told by the accused, when taken together with the other aspects of the accused's evidence I will discuss, I do not propose to take into account what Mr Barber said is evidence of the accused's good character as making it more likely that the accused is telling the truth in court.

44 I carefully watched the accused in the witness box. I carefully listened to his evidence. There were many things I saw and heard which caused me to doubt that I could accept the accused's credibility when he gave evidence on important matters. I will give some examples.

45 In describing the history of his epilepsy, the accused said that when he was young, in his late teens, he would occasionally feel dizzy, mainly at night. He went to a doctor's rooms at Warringah Mall where he discussed these dizzy spells with the doctor and was prescribed medication. Mr Barber then asked the accused about Exhibit G and in particular a medical examination conducted in 1990. The accused denied severe dizzy spells during that examination. Mr Barber asked him why he answered the question that way and the accused said that was because he had not had a daytime fit since 1986, nor had he had any dizzy spells at that time. However there was evidence to suggest that the accused has always had nocturnal fits and, as I have just noted, the accused described one of the symptoms of those fits as being dizzy. When asked a question about that, he at first answered "I want to answer the question but I just don't know how to answer it" before finally agreeing that he would describe them as "dizzy spells".

46 I am satisfied that the accused knew precisely how he should answer that question but was reluctant to do so because it would reveal him to have lied during the 1990 examination, that is that he deliberately said something which was untrue.

47 The next example concerns what was said to be the one occasion that a doctor raised with the accused the question of whether he should reveal his epilepsy to the RTA. The accused's evidence was that Dr Worthington:

"said to me 'do you drive'. And I said 'yes I do', and then he said something like 'have you considered telling the RTA' and I said 'I don't drive all that much'."

48 This alerted my attention because I recalled the way Mr Barber opened this case to me. In that opening he said of the accused: "he's been driving enormous distances in his employment with the Navy, all over the state".

49 When asked about this apparent contradiction, the accused attempted to suggest that he had understood the original question as simply asking whether or not he drove to work - as he usually got the ferry he felt that he did not drive all that much. However, consistent with the way Mr Barber had opened the case to me, it became apparent that once he got to work the accused would do what anyone would accept was a significant amount of driving, visiting Navy establishments at Nowra, Canberra and Williamstown. The accused's attempt to explain away the obvious contradiction between not driving "all that much", and "driving enormous distances" was very unimpressive indeed.

50 The accused is clearly an intelligent man. He has been involved in public relations for some time and he gave evidence that he had written about 12 books. He is therefore familiar with words and their meaning. Despite this there were many many occasions when the accused would fail to answer a direct question put to him by the Crown Prosecutor in cross examination. I am satisfied that this was not because he did not understand the question, but because he did not want to answer it.

51 An example of the accused, deliberately in my view, failing to answer a question concerns that fact that he had to be pressed as to whether when he went to see Dr Beran after an incident in 1986 (when he collapsed in front of a number of senior officers), he was concerned that he had suffered an epileptic fit. What should have been a simple matter for the accused to answer either "yes" or "no" took a number of questions before the accused would finally address the question and provide an answer. This is but one of many examples.

52 The accused's attitude towards the obligation to tell the truth in court can be seen in other answers he gave in cross examination, for example suggesting that it was only now that "he looked back" on things that he realised that he was lying when he denied his epilepsy. The accused had difficulty admitting what was obvious, that is that he told repeated lies to those people, and he knew they were lies at the time he told them.

53 As I mentioned before, some of the elements which the Crown has to prove beyond reasonable doubt are not in dispute. I will deal with them before returning to those matters which are in dispute.

54 Before I can find the accused guilty on the charges he faces I must be satisfied beyond reasonable doubt of each of the following 4 elements: * The accused was the driver of the Toyota Avalon sedan registration ZZZ-059. * That vehicle was involved in an impact with the Mitsubishi Lancer in which the Howies were travelling. * As a result of that impact the particular person named in each of the 3 charges was killed. * At the time of the impact the vehicle was being driven in a manner which was dangerous to other persons.

55 Two of those elements, the first and fourth require the Crown to prove that the accused was driving. He could not be said to be driving if he was acting involuntarily so I will pass over for the moment the issue as to whether the accused was driving his motor vehicle and return to it in due course.

56 There is no dispute that the accused's car was involved in an impact with the green Mitsubishi Lancer driven by Cameron Howie. There was evidence of that from various sources. Some people saw the collision and the investigations carried out by police afterwards confirmed their observations. I am satisfied beyond reasonable doubt therefore that for each of the 3 charges the Crown has proved that the accused's vehicle was involved in an impact with Mr Howie's vehicle.

57 I am also satisfied beyond reasonable doubt that as a result of this impact Cameron Howie, Shannon Howie and a Michaela Howie were killed. Again there is unchallenged evidence which establishes that as a result of the impact between the accused's car and Mr Howie's, the green Mitsubishi Lancer was propelled into oncoming traffic. Mr Fuller could do nothing to prevent his vehicle colliding with the green Mitsubishi. It is not relevant whether it was the initial impact with the accused's car or, as is much more likely, the later impact with Mr Fuller's 4-wheel drive which caused the deaths of each of Cameron, Shannon and Michaela Howie. I am satisfied beyond reasonable doubt that the accused's car was involved in an impact which caused the deaths of each of those 3 people.

58 Assuming that the Crown satisfies me beyond reasonable doubt that the accused was acting voluntarily and was thus "driving" his car (an issue I will discuss very shortly), the accused was driving dangerously if the Crown has established beyond reasonable doubt that there has been some serious breach of the proper conduct of a vehicle - so serious as to be in reality, and not merely as a matter of speculation, potentially dangerous to another person or to other persons.

59 The nature of the driving on which the Crown relies depends on which of the three ways it presents its case is being considered. For the first two ways it relies on the speed the accused drove down Condamine Street after colliding with Dr Currie's car and the failure by him to stop or slow down in sufficient time such that he would not collide with the rear of the Howies' car. I do not understand the accused to challenge this aspect of the Crown case. The evidence clearly establishes beyond reasonable doubt that the car was being driven dangerously at the time of the impact with the car driven by Mr Howie.

60 As far as the third way the Crown presents its case is concerned the Crown says on this issue that the accused's driving was dangerous to other persons because there was a real and substantial risk, in other words a significant risk, that the accused would injure or kill someone as a result of him suffering a fit whilst driving and therefore being unable to exercise proper control over his motor vehicle. I will return to this issue in the event that it is necessary - that is if the Crown has not proved its case on one of the first two ways it presented its case.

The First and Second Ways the Crown Presents its Case

61 I will now focus on the first two ways the Crown presents its case. The Crown needs to prove beyond reasonable doubt that the accused was acting voluntarily immediately before his car collided with the Howies'. (In relation to the third way the crown presents its case the Crown still must prove that the accused acted voluntarily, but this need not be immediately before the collision with the Howies' car - as I have just said, I will deal with this matter, if necessary, later in this judgment).

62 As part of the elements I have referred to above, the Crown has to prove beyond reasonable doubt that the accused's actions were voluntary. If it does then it follows that the accused was "driving" his car.

63 Underpinning the criminal law is a basic notion. It was expressed by Toohey J in The Queen v Falconer (1990) 171 CLR 30 this way: "a person is responsible only for conscious, voluntary and deliberate acts or omissions".

64 Various terms have been used to describe the concept of voluntariness, as it is known to the law. Often used is the concept of "free will", see for example Kitto J in Vallance v The Queen (1961) 108 CLR 56 at 64. In Falconer at 39, Mason CJ, Brennan and McHugh JJ explain: "the notion of 'will' imports a consciousness in the actor of the nature of the act and a choice to do an act of that nature".

65 I find this explanation to be a helpful one. A voluntary action is one: * which is consciously chosen * with an awareness of what the person was doing

66 The law does not punish people for actions over which they have no control. An example of this is sleepwalking. If a person, whilst sleep walking, went into someone's home and took something from it then even though that could amount to the offence of breaking, entering and stealing, if the person had no control over his or her actions then that person is not guilty of a crime. Sleep walkers might be thought to have no control over what they are doing, that is their actions are not voluntary. An extreme example of this is to be found in the Canadian decision of R v Parks [1992] 2 SCR 871 where a man who, whilst asleep, drove a car and killed 2 people by stabbing them, was acquitted of murder by a jury.

67 If I accidentally put my hand on a hot surface and as a reflex action pull it away quickly hitting someone who is standing nearby then it could not be said that I have hit that person voluntarily because I never really chose to move my arm, it being an automatic reaction to me touching the hot surface.

68 A similar conclusion would be reached in the case of a person who has lost control of his or her movements through cerebral palsy.

69 One way of looking at the question of whether the accused's actions were voluntary is to ask myself whether they were the product of his will. That is another way of expressing the concept of voluntariness: were the accused's actions the product of his will? An action done by a person who is conscious of what the action is, and who consciously chooses to do that action, is something which is the product of his or her will and thus done voluntarily.

70 It is important to distinguish between voluntariness on the one hand and intent or desire on the other. As Mason CJ Brennan and McHugh JJ said in Falconer : "the requirement for willed act imports no intention or desire to affect a result by the doing of the act, but merely a choice, consciously made to do an act of the kind done".

71 When the voluntariness issue is related to the accused's driving, the result is that I have to examine whether the accused: * made a conscious choice as to how he would drive * at a time he was aware of what he was doing.

72 The Crown case is that the authorities establish the following: if a person is able to control a motor vehicle so that he or she can steer it along a road avoiding obstacles on the way, then that conduct, by definition, must be voluntary conduct. The Crown relies on English cases such as Broome v Perkins (1987) 85 Cr.App.R 321. The result in that case has been described as "harsh". Whether it is harsh or not does not really matter, the more important question being whether it is consistent with the law of New South Wales which binds me, and the answer to that question in turn depends on what the judges of the Queen's Bench meant by a passage relied on by the Crown at page 332. It seems, from the result in Broome v Perkins, that the English judges were of the view that if the mind of an accused reacts to external stimuli and then directs the body's movement, that person must be acting voluntarily.

73 The test applied in Broome v Perkins, relied on by the Crown, would perhaps even describe as voluntary conduct the actions of person who, in the example I gave earlier, moved his or her hand quickly after touching something hot - in such a case the mind is reacting to external stimuli and directing appropriate movement.

74 However I do not consider that the Crown submissions, based as they are on English cases, represent the law in New South Wales. As I have indicated, the High Court in Falconer speaks of a consciousness of the nature of the act and a choice to do an act of that nature. The Crown Prosecutor's submission, and the decision in Broome v Perkins fail to distinguish between choices and automatic reactions. It is accepted in law and in medicine that a person's mind can direct the movement of that person's limbs such as to avoid obstacles when that person is acting automatically, that is without consciously choosing what to do. I am satisfied that automatic reactions in response to stimuli are not sufficient to demonstrate a conscious choice. An automatic response to stimuli therefore does not demonstrate voluntary behaviour.

75 Of course there are two competing submissions put to me. The Crown says that the accused's conduct immediately before the fatal collision was voluntary and the accused says his conduct was not. It is not a matter of which submission I prefer, the Crown bearing the onus of proving the guilt of the accused beyond reasonable doubt.

76 Quite early in the piece, the accused suggested the possibility of fit or blackout as a cause of the collision. In particular, at 5.04 pm he spoke to an ambulance officer who was treating him at the crash site, Alexander Law. The accused, who appeared to be alert and showing good logic at the time suggested to the officer that he may have blacked out. Later on, whilst the accused was being transported to Royal North Shore Hospital, he again raised this possibility with Mr Law.

77 On 7 May 2003 when the accused went to Manly police station he declined to be interviewed but he again suggested that he blacked out.

78 Whilst the fact that the accused raised the possibility of him having blacked out fairly soon after the collision tends to point in favour of his credibility on this issue, I have to take into account other aspects of the evidence which tend to suggest to the contrary. Here in particular I refer of course to the lies told by the accused to his employer, to Waterways and, even more relevantly, to the Roads and Traffic Authority when applying for his drivers licence to be extended.

79 That evidence reveals a preparedness on the part of the accused to tell lies to his advantage, even over very important matters. This effects the weight I should give to his early suggestions that he suffered a blackout or seizure. A further reason why I should place less weight on them is that there are some contradictions in what he told various people such as the triage nurse at Royal North Shore Hospital, the ambulance officer Mr Law, Dr Hing and Dr Lau.

80 Whilst I will certainly take into account the early suggestion by the accused of the possibility of blackout I will, in the circumstances of this case, pay more attention to the external observations made by others in determining whether the accused suffered a seizure. Much of that evidence is also relevant to the issue whether the accused was driving voluntarily even if he suffered a seizure.

81 I will now examine the evidence on this issue. That evidence relates to a number of interrelated questions: * Stephen Riley's description of the accused's driving on 2 May 2003. * Did the accused signal with his right hand blinker immediately before reaching Campbell Parade. * Did he brake before hitting Dr Currie's vehicle? * Did he steer his car around obstacles and in such a way that it remained in the correct lane. * Did the accused's vehicle accelerate away after colliding with Dr Currie's vehicle? * Did he brake before hitting the Howies' car? * What did the accused do immediately after his vehicle stopped after colliding with Mr Wiebe's vehicle? * What the accused said to the ambulance officer at the scene. * His behaviour as observed by Senior Constable Gillard. * Other observations of the accused at the scene. * Observations of the accused at hospital. * What accused said to police on 7 May 2003.

82 The evidence relating to those questions is conveniently discussed under a number of headings, but I will emphasise that I have not formed my conclusions on the various matters I am about to discuss by examining only the evidence directly relevant to the issue identified under that heading. In this case there is an interrelationship between the evidence under the various headings - a matter I have borne firmly in mind.

83 On 2 May 2003, Mr Riley saw the accused's car while they were still on the Burnt Bridge Creek Deviation. He described the accused darting in and out of traffic although that turned out to be simply a movement by the accused's car from the middle lane to the left lane and then back again. Clearly the accused was in control of his motor vehicle at that stage (no suggestion has been made to the contrary).

84 Mr Riley also said that it appeared that the white Toyota was in a hurry, although as Mr Barber pointed out the accused's car was not too much in front of Mr Riley's when they got down to the Campbell Parade intersection.

85 Even accepting that Mr Riley's evidence is completely accurate as to his observations of the accused's driving whilst on the Burnt Bridge Creek Deviation they do not assist me when it comes to the state of the accused as he approached Campbell Parade.

86 At that intersection, there was a car in between Mr Riley and the accused. Mr Riley saw the accused's right indicator come on, the accused turn his head to the right as if to see if anything was there and then the accused changed lanes, colliding with Dr Currie's car as he did so. She was apparently stopping at the same time as the accused changed lanes and he ran into the left hand side of the rear of Dr Currie's car. If accepted, this evidence could suggest that the accused was conscious of what he was doing and able to control his motor vehicle immediately before it collided with Dr Currie's car, although there is of course another competing suggestion - that the accused performed these actions automatically whilst undergoing a complex partial seizure.

87 I can see no reason to doubt the reliability of Mr Riley's evidence (which is of course not to reverse the onus of proof). If it was contrary to other reliable evidence then it may be that I would reject the observations of Mr Riley I have just described as being mistaken.

88 Apart from Mr Riley, evidence was given by a number of witnesses from different vantage points. Most of the witnesses were also travelling north in Condamine Street. But there were also other witnesses nearby: one was travelling south in Condamine Street, one was in Campbell Parade facing east; two were in Campbell Parade facing west; and some more were in Miller's Reserve.

89 In reviewing the evidence on this matter I have been very careful to take into account that the action of Dr Currie's car spinning around would have caused the sound of tyres screeching on the roadway. It is thus very important when examining the evidence of those who heard tyre-screeching sounds to consider whether they were heard before or after the collision with Dr Currie's car. To make it perfectly clear, screeches which were heard after the collision could not safely be used as an indication that the accused braked before the collision. Screeches heard by those who heard no collision may also be the sound of Dr Currie's car spinning.

90 I must also take into account the evidence of Mr Anderson, a Consulting Engineer, who gave evidence before me as to the results of experiments he conducted on a Toyota Avalon fitted with anti-lock brakes and another car not fitted with anti-lock brakes. The results of his experiments were that at no time did the ABS equipped vehicle produce any tyre smoke under heavy braking, although there were some sounds of tyre screeching on the roadway. No noticeable tyre marks were left by any of his braking manoeuvres in the ABS equipped vehicle.

91 Mr Anderson's evidence is particularly important in assessing the reliability of the evidence of those witnesses who said they saw tyre smoke coming from the accused's vehicle. His experiments would tend to suggest that such observations were wrong. Those witnesses who heard tyre screeches which they attributed to the Avalon may, in the light of his experiments, have been accurate, although it would seem that prolonged tyre screeching sounds are unlikely to have been generated by the Avalon at any stage.

92 With those considerations in mind, there is evidence which points to the conclusion that the accused applied the brakes of his car before colliding with Dr Currie's. * Mr Lever heard the screech of brakes before the collision with Dr Currie's car (he also said he saw smoke). * Mr Lengel heard a screech of tyres before the bang at Campbell Parade. * Mr Wilkinson heard a screech and saw the white car skid for half a metre, (he was another witness to say that he saw smoke coming from its tyres before the collision). * Ms Thasler heard a screech and smelt a rubber smell before hearing the sound of a collision. * Mr Riley saw the brake lights of the Toyota come on before the collision.

93 Some witnesses said that they heard a screech after the collision which, as I have indicated is consistent with Dr Currie's car being spun around, and in the absence of evidence that they also heard screeches before the collision with Dr Currie's car, tends to suggest the absence of hard braking by the accused before that collision.

94 Other witnesses, for example Mr Johnson, saw and heard no collision at all so their evidence does not assist as it is impossible to tell whether they heard the sound of the accused's car braking before the collision (if that is indeed what he did) or the sound of Dr Currie's car spinning after the collision. It is not surprising that the sound of the collision at Campbell Parade was not heard by some witnesses, particularly those in Miller's Reserve. The collision appears to have been relatively minor.

95 In the light of the evidence of Mr Anderson, and the contradictory evidence from the eye witnesses, there is some doubt as to whether the accused applied the brakes of the Avalon before the collision with Dr Curries' car. However there was reasonably consistent evidence from the witnesses, the weight of which was in no way affected by Mr Anderson's experiments, as to what happened after the collision - in particular, the way the accused's car moved after the collision with Dr Currie's car.

96 That evidence establishes that the accused manoeuvred his car around Dr Currie's. That evidence came from Dr Currie herself, Mr Moore, Mr Badge, Ms Sloan and Mr Wilkinson. Indeed Mr Moore described what the accused did as "a brilliant piece of driving".

97 Finally as regards the accused's use of the accelerator after the collision with Dr Currie's car, the almost universal evidence from those who saw the accused's car proceed down Condamine Street was that it was: accelerating; zooming; speeding up.

Did the Accused Brake Before Colliding with the Howies' Car?

98 On the next question, namely whether the accused applied the brakes immediately before his car collided with the Howies' car, there was again substantial evidence pointing both ways. This is not surprising. * Some witnesses had a better view than others. * Some witnesses relied on what they heard whilst other witnesses relied on what they saw. * One witness, Dr Currie, did not tell police something she later said in Court. * Some witnesses gave evidence of seeing and hearing things which Mr Anderson's evidence suggests is at least unlikely. * And finally, the evidence of the lack of skid marks on the surface of Condamine Street is of little assistance one way or the other.

99 Given that state of the evidence no satisfactory conclusion can be drawn as to whether the accused did or did not apply the brakes immediately before his collision with the Howies' car. I accept that evidence which establishes that the accused did not apply the brakes tends to support the conclusion that he was not acting voluntarily immediately before his car collided with the Howies'. There are other, possible inferences, for example that he was looking behind him to see what had happened at Campbell Parade or whether anyone was following him, but the absence of braking before colliding with the Howies' car is more easily explained by a seizure than by other mechanisms.

100 If the accused was not having a seizure he could not have failed to be aware of the banked up traffic in front of him after he went through the Campbell Pde intersection. He was not going to be able to escape by continuing down Condamine Street as his flight would come to an end within a few hundred metres. Whilst an interest in what was happening at the intersection behind him may explain a glance, or even something longer, in the mirror, it does not explain the observed behaviour of the accused's car which was to zoom down towards stationary traffic blocking all north bound lanes just a short distance away.

Observations Made of the Accused After the Collision

101 A number of people gave evidence as to the appearance and behaviour of the accused after the collision. Many of those observations suggest that the accused was dazed or bewildered. It seems that Daryl Johnson, an off duty fire brigade officer, was the first person to see the accused after the collision. Mr Johnson asked the accused if he was alright but received no reply although he did see the accused getting out of his car. Mr Wiebe was probably the second person to see him. Mr Weibe said that the accused looked a little bit dazed when he first got out of his car. Some witnesses, for example Phillip Ashworth, Patrick Lever and Michael Fuller, suggest the accused acted as though he was uninterested in what was going on,.

102 One of the first police officers to arrive at the collision scene was Senior Constable Brett Gillard. When he first arrived there he could not find the driver of the Toyota Avalon. He then performed various aspects of his duty as a police officer such as organising traffic diversions. Some time after he first arrived he saw the accused standing at the driver's door of the Toyota. He seemed to be about to get into the car. Senior Constable Gillard ran across the roadway and spoke to the accused. The following conversation then took place:

"Is this your car?"- "Yes." "You were involved in an accident."- "No." "You had an accident up at the top of the street (pointing in the direction of Campbell Parade) and…" - "No." "You had this accident here, look at your car."

103 Constable Gillard's evidence was that at this point the accused looked at his car and then looked puzzled, he made no further comment, and appeared disoriented. He had a blank look on his face and appeared to be in shock.

104 Another person who was on the scene early was Sean Wilkinson. I will quote some important aspects of his evidence:

"Q. When you spoke to the person who you identified as driving the white car did you make any observations of him?

A. Yeah he seemed to be in shock to me. I said to him "What have you done" you know and all that sort of thing and he just said to me "Oh what, what, what have I done" and he seemed to be in shock."

105 Mr Wilkinson said that it appeared that the driver of the white car, who was of course the accused, didn't know what he had done.

106 And then to confirm that that was his opinion, Mr Barber suggested: "Q. That from the tone of his voice it appeared to you that he didn't know what had happened?

107 There is other evidence which suggests, at least after a short time, the accused was aware of his surroundings. For example, at a time that Mr Wiebe estimated was about 8 to 10 minutes after the collision, the accused asked to borrow Mr Wiebe's mobile phone so that he could ring his wife. When Constable Preston asked the accused whether he was the driver of the white car the accused did not answer at first, but when the question was repeated louder he said "yes". The accused was also able to produce his licence from his wallet when Constable Preston demanded it.

108 The evidence of the ambulance officer who treated the accused, Mr Law, deserves particular mention for three reasons: * First, he was the only witness whose sole focus was on the condition of the accused. * Secondly, he was trained to assess the accused's condition, and * Thirdly he made notes, either soon after making his observations or as he made them.

109 Mr Law noted that the accused was polite, alert and had no trouble conversing. He displayed good logic in responding to Mr Law's questions. Mr Law said he looked at motor neuron responses in regard to strength of limbs, pupil reaction and recollection of personal details. He found no motor or sensory deficit and the accused had a good recollection of his personal details. His Glasgow Coma Scale Score was at the top of the range indicating a full level of consciousness.

110 Once the accused got to Royal North Shore Hospital he was seen by doctors and nurses who were also concerned with the condition of the accused, who were trained, and who made notes. Again there is nothing to suggest that at that time the accused was less than fully conscious and aware.

111 The Crown relies heavily on these observations by Mr Law and hospital staff as part of its case that the accused was driving voluntarily when his car collided with the Howies' a relatively short time earlier. It is however important to remember that these observations were made after many of the other observations to which I have referred and the unanimous medical evidence is that they are not at all inconsistent with the accused having suffered a complex partial seizure shortly beforehand.

112 The evidence as to the behaviour of the accused as observed by those at the scene, before he was examined by Mr Law, is certainly suggestive of at least confusion on the part of the accused. Such confusion could be explained by him having had a fit. But that is not the only explanation I have to examine. A person in the accused's position could well have difficulty appreciating what had happened, and comprehending that he had caused the carnage on Condamine Street, even if that person had not had any form of fit. What happened to the accused was violent, traumatic, and sudden. He was involved in three separate collisions. Both airbags in his car had deployed. The crash involving the Mitsubishi and Mr Fuller's 4WD was even on the opposite side of the road to that on which he was travelling, and so the accused's question "what what have I done?" has to be seen in that context.

113 Also of possible relevance to this issue is the circumstance that when the Avalon is examined by Constable Cummings it is apparent that someone has turned off the ignition, removed the key, applied the parking brake, and placed the transmission in neutral. The evidence tends to suggest that the person who did these things was the accused and that he did this immediately after the collisions.

114 I will explain why this is so. The only person seen to be in the driver's seat of the white Avalon was the accused and he was not seen to re-enter that seat at any time after he got out. He was seen to sit on the rear seat and to remove items from the car, but there was no evidence that he returned to the driver's seat and sat there, something he would have had to do to apply the parking brake which was operated by a foot pedal, not a lever between the front seats as is perhaps more common.

115 Thus the evidence establishes that immediately after the collision the accused was dazed and confused, but sufficiently aware of his surroundings to place his car in neutral apply the parking brake, turn off the ignition and turn off the key before getting out.

116 No doubt someone who had just been involved in 3 separate motor vehicle collisions causing the vehicles 2 airbags to deploy would, in those circumstances be dazed, bewildered, and disoriented for a short time. Despite that this accused has been able to put his car in neutral, engage the parking brake, turn off the ignition, and remove the key very shortly after the collision and, within a relatively short time after that, made a rational request to Mr Wiebe, responded rationally to Constable Preston, and appeared alert, logical and fully conscious to a trained ambulance officer.

117 These matters need, however to be evaluated in the light of the medical evidence as to what happens to a person when suffering a complex partial seizure. I will discuss this in more detail shortly, but for the moment it should be noted that the Doctors: * place emphasis on the observations of the accused made by people such as Constable Gillard and Sean Wilkinson which suggest that he had no idea that his car had been involved in a collision, and * explain the movement of the ignition key, parking brake and gear lever as automatic behaviour which can be carried out by a person suffering a complex partial seizure.

118 The Crown called evidence from Dr Somerville and the accused called evidence from Dr Beran. There was no significant difference between the conclusions reached by those doctors. They are both eminently qualified neurologists. They both formed the opinion that the accused had suffered a complex partial seizure shortly before the collision between the accused's car and that driven by Cameron Howie. Although those opinions were, at least initially, formed on the basis of statements they had read rather than the evidence that was given before me, it does not appear that there is any material difference between the facts the doctors have assumed and the evidence as it was given in Court.

119 Dr Somerville, with whom Dr Beran agreed on this point, paid particular attention to the observations made of the accused immediately after the collision had occurred. I have already set out some of that evidence. That evidence reveals that the accused was unaware of what had happened. Whilst a person who had not suffered a complex partial seizure might be dazed by a violent series of collisions, Dr Somerville said that the difference between the way accused appeared and the way a merely dazed person would appear is that the latter would be aware that he had, for example, just been involved in a crash. The evidence as to how the accused appeared, however, suggested the contrary in this case. Senior Constable Gillard's evidence suggested that the accused was not even aware that his car had been damaged until it was pointed out to him. Mr Wilkinson gave evidence that the accused asked him "what have I done" in a tone that suggested he was unaware of what had occurred.

120 Although there is evidence to suggest that within a short period of time the accused was able to respond rationally to questions from, for example Alex Law, that is easily explained by the conclusion that the seizure had passed by the time Mr Law examined the accused.

121 Dr Somerville was asked about the circumstance that the accused appears to have turned off his ignition, removed the key, applied the parking brake and placed the transmission in neutral before leaving his car. He considered this was capable of being regarded as automatic behaviour - the sort of thing that a person can do whilst suffering a complex partial seizure.

122 In the present case, where the unanimous expert opinion is that the accused suffered a complex partial seizure, the Crown submission is that I would reject the expert opinions because they were based on what the accused told the doctors. The Crown says that because the accused would lie whenever it suits him I should be satisfied beyond reasonable doubt that the doctors are wrong. The Crown relies on a particular answer given by Dr Somerville in evidence in chief: Q. I am just asking you about what the accused said that his condition was. Is that based solely on the accused, what he told you?

The Crown, presumably inadvertently, ignored the immediate clarification which took place after that evidence was given which resulted in Dr Somerville saying: "I formed my opinion based on what he told me and on reading descriptions of the way he was driving".

The Crown made no reference to other evidence of Dr Somerville such as this:

Q. If the, what the accused told you of how he felt prior to the intersection, I think he said to you of Campbell Parade, was different to what he told you, would your opinion be different?

A. I don't think it would, because the way he felt before, it was only one of the many factors that led to the opinion that I formed.

123 In these circumstances the Crown submission that I am entitled to ignore Dr Somerville's opinion because it is based "solely" on what the accused told him cannot be accepted. Having carefully considered the Crown's submissions I can see no reason at all why I should reject Dr Somerville's opinion. To put matters more precisely, and to emphasise that the Crown bears the onus of proof - in the light of all the evidence, including that to which the Crown made no reference in his final submissions, I am not satisfied beyond reasonable doubt that Dr Somerville's opinion was wrong.

124 I mentioned before one of the possible explanations for the accused accelerating away from the Campbell Parade intersection after a minor traffic collision, even though the road ahead of him was blocked by traffic built up at the Kentwell Road lights. Such behaviour could be explained by a desire on the part of the accused to leave the scene of a traffic accident - to get away and escape the consequences of what he had done. However this does not seem a terribly likely explanation to me: the accused was in no particular danger of losing his licence through such things as an accumulation of points; the collision was minor; the number plate was memorable; the road ahead was blocked. The evidence of the accused's good character is relevant here. That evidence suggests that the accused is not the sort of person who would drive like a maniac to avoid the consequences of a minor traffic accident - even one for which he was to blame.

125 There is a much more likely explanation which is related to what happens when a person suffers a complex partial seizure. Dr Somerville's evidence was that such episodes can be associated with a straightening or stiffening of the limbs. If the accused's foot was on the accelerator when his limbs straightened during a seizure then his car would speed off down the hill. This is exactly what was observed to have happened after the collision at Campbell Parade. Further Mr Moore described the appearance of the accused behind the wheel as having his arms stretched out in front of him, which is also consistent with the accused experiencing a stiffening of his limbs during a complex partial seizure

126 A complex partial seizure does not mean that the accused loses complete control of his body. A person in a complex partial seizure is still able to perform automatic actions. Thus although there are some features of the way the accused's car travelled that day which tend to suggest that the accused was not suffering a complex partial seizure (such as manoeuvring around Dr Currie's car) they are not inconsistent with that occurring. It has to be firmly borne in mind that the expert called by the Crown indicated that he was maximally convinced that the accused had suffered a complex partial seizure. He was of this opinion even if the accused had braked before colliding with the Howies' car. In those circumstances I can not be satisified beyond reasonable doubt that the accused did not suffer a complex partial seizure.

The 1993 Collision was also due to a Complex Partial Seizure

127 One of the matters Dr Somerville took into account in coming to his conclusion regarding the 2003 collision concerned the 1993 collision. His evidence was that people with epilepsy tend to have stereotypical types of seizures and the startling similarity between the circumstances of the 1993 and 2003 collisions was a factor which he took into account.

128 There is an element of circularity in using the circumstances of one collision to decide whether the other collision was due to a complex partial seizure but notwithstanding this logical difficulty I can understand how Dr Somerville came to his conclusion. I accept his conclusion regarding the 1993 collision as well as the 2003 collision.

129 I am satisfied that the accused had a complex partial seizure immediately before the 1993 collision. This explains his lack of memory of what occurred between Warringah Mall and further down Condamine Street.

The Crown has not proved that the Accused did not Suffer a Seizure

130 It is significant that the expert evidence is unanimous. Both doctors called agreed with each other in concluding that the 2003 collision resulted from the accused suffering a complex partial seizure. I got the impression that Dr Beran was less convinced about the accused suffering a complex partial seizure before the earlier 1993 collision than Dr Somerville was but nevertheless they both agreed that that was the most likely explanation for the earlier collision as well.

131 It is not simply a matter of me accepting the unanimous opinion of 2 experts without examining for myself the evidence on which those conclusions are based and the explanation for the opinions they have reached. I accept the expert opinions expressed by the doctors as being based on facts which I accept and which seem to me to be justified in the light of those facts and the phenomenon of complex partial seizures, as I understand them.

Can a Person Suffering a Complex Partial Seizure Act Voluntarily?

132 What I have said so far disposes of the first way the Crown presents its case. I am not satisfied beyond reasonable doubt that the Crown has proved to me that the accused did not have a complex partial seizure. That brings me to the second way the Crown presents its case which was that even if he did have such a seizure, he nevertheless drove voluntarily. This is not an easy question to determine because the issues involved verge on the philosophical.

133 Some cases on which the Crown relied suggested that what the law means as involuntary behaviour is behaviour where the accused loses complete control of his body and where there is no ability left in the mind to control, for example, the person's limbs. However having looked at the authorities I am satisfied that the proper way to determine this issue is to ask myself the questions that I have earlier outlined, namely, whether the accused made a conscious choice as to how he would drive at a time he was aware of what he was doing.

134 The way the Crown asked me to decide this matter would mean that a person who was sleep walking would nevertheless be acting voluntarily in that their eyes took in what was around them and their brain controlled their limbs such as to avoid obstacles. Dr Beran expressed the difference well when he talked about the difference between seeing and perceiving. A sleep walking mind may see obstacles and instruct the body to move around them but that does not mean that the person is perceiving what they are doing in the sense that they are conscious of where they are and make a choice as to what they do.

The Doctors' Views as to Voluntariness During a Seizure

135 Although it is reasonably clear that people with epilepsy can carry out quite complex activity during a seizure, such as driving through intersections with traffic lights, avoiding collisions as they go, that does not necessarily mean that the person is acting voluntarily. Dr Somerville's view was that those movements may be carried out automatically. Dr Somerville agreed with a proposition put to him by Mr Barber in cross examination that during a complex partial seizure: "the person can't wilfully make any choices, or willingly do an action other than an automatic action, which the brain causes to happen as a result of information it is receiving"

136 I will quote two further questions and answers from Dr Somerville's evidence: "Q. … in a complex partial seizure stimuli or information may be going into the brain via the eye without the driver necessarily being aware or conscious of what that stimulation is?

137 In relation to driving with a seizure Dr Somerville said: "I think all you can say is that his brain was - his brain was taking in enough information and processing it sufficiently to be able to get the car along the road."

The Crown suggests that this necessarily means the accused was acting voluntarily. But as I have earlier indicated I think there is a clear distinction between a brain which reacts to stimuli automatically and a brain which is conscious and able to choose.

138 Dr Beran's evidence was similar. He said that those who suffer a complex partial seizure are not conscious in the normal sense of the word but are only capable of acting automatically. When asked to describe someone in that state he said: "basically they do not know what they're doing and can give no recollection of what they're doing and don't have control over it".

139 He explained later on that: "to function at a conscious level there had to be perception and decision making. To react does not require conscious decision making".

The Accused was not Acting Voluntarily During the Seizure

140 After considering the evidence on this issue, both medical and eyewitness, I am not satisfied beyond reasonable doubt that the accused was acting voluntarily at the moment his car ran into the back of the Howies' car. I am satisfied he was then suffering a complex partial seizure and that any movement of his body in response to external stimuli was not the result of a conscious choice, but was merely automatic behaviour of the kind an unconscious mind is capable of performing.

141 When looking at the third way the Crown puts its case the live issues are whether the Crown has proved beyond reasonable doubt that: * At a time when the accused was driving voluntarily he was driving dangerously. * This time was close enough in time to the collision as to make the driving at that time, in a practical sense, the cause of the impact and the deaths of the Howies. * The accused did not believe on reasonable grounds that it was safe for him to drive (again using the word safe as a shorthand antonym for the concept of dangerousness in the 3 counts the accused faces).

142 I will look at these issues in a different order to that which I have just announced, beginning with the time issue.

143 Although a glance at the charges may suggest that the Crown has to prove beyond reasonable doubt that the accused was driving dangerously at the time of the impact, that does not mean the precise second when the cars collided. If it did mean that, then because the accused was acting involuntarily whilst in a seizure, then he could not have been driving dangerously at the time of the impact and the Crown could never succeed in a case like this, or the more common case in a case where a driver falls asleep at the wheel.

144 The driving I must look at in order to determine whether it was dangerous or not is the accused's driving at a time which is close enough to the time of his car colliding with that driven by Mr Howie so that it can be said that at the time of the impact the accused was driving in a manner which was dangerous to another person or persons.

145 Although a person who is acting involuntarily can not be said to be "driving" his car, I must look at how the accused drove before he had a seizure that day and ask myself whether that was driving in a manner which is dangerous to another person or persons, as long as the driving before the seizure was, in a practical sense, the cause of the impact and the deaths of the Howies.

146 I am satisfied beyond reasonable doubt that on the accused's journey towards Manly Vale on 2 May 2003, he was driving voluntarily until he had a seizure - this coming upon him suddenly as he approached Campbell Parade. I am also satisfied beyond reasonable doubt that in a real and practical sense it was his voluntary driving before the seizure started which caused the later fatal impact with the Howies' car. Had it not been for the voluntary act of driving towards Manly Vale on 2 May 2003, his car would not have collided with the Howies' car, causing their deaths.

Was the Accused Driving Dangerously as he Approached Manly Vale?

147 The question as to whether the accused was driving dangerously when he was voluntarily driving shortly before he had his seizure is an objective test. It does not matter, when considering this test, whether the accused believed that it was dangerous for him to drive or not. At this stage, his subjective thoughts as to such things as the likelihood that he would suffer a fit whilst driving are irrelevant.

148 As Barwick CJ said in McBride v The Queen (1965) 115 CLR 44 at 50: "…it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section".

149 The issue I have to decide is whether, when he was voluntarily driving along Condamine Street towards Manly Vale, as a result of his condition, the mere fact of him driving in that condition constituted driving in a manner dangerous to another person or persons, because driving in that condition subjected another person or persons to some real, significant and substantial risk of injury or death 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.

150 As to whether the accused's driving was dangerous in that sense, it is the case for both the Crown and the accused that there was an increased risk of the accused having a motor vehicle collision because of the risk that he would suffer a seizure. The case for the accused even attempted to, as I understand it, provide me with a statistical probability of the accused suffering a seizure whilst driving but I am not going to approach this question in any mathematical way. Of course I take into account that, generally speaking, the longer a person goes without a daytime seizure, the lower the risk of that person suffering such a seizure during any given period in the future.

151 Mr Barber attempted to persuade me that because the accused would probably have been allowed to renew his licence even if he told the truth about his epilepsy, then his driving cannot have been dangerous. I reject that submission for a number of reasons.

152 Dr Beran gave evidence that had he assessed the accused shortly before the collisions on 2 May 2003 he would have allowed him to drive. This however does not mean that the accused is not driving dangerously in the sense that I have outlined earlier, based on the authorities which bind me. Although Dr Beran's opinion is clearly evidence tending to suggest the conclusion that the accused was not driving dangerously, there are, I gather, value judgments made by doctors in Dr Beran's position which balance the rights of those with epilepsy against the risks they present. This is not the same as the test I must apply. Dr Beran's opinion is relevant to that test but far from determinative.

153 The second reason for rejecting the conclusion that the accused could not have been driving dangerously because Dr Beran would have recommended that he be given a licence is that is that the figures on which the guidelines used by Dr Beran and others are based, are, as Dr Somerville recognised, pretty rubbery. Arbitrary figures have been taken as to such things as the number of hours which the person spends behind the wheel in a day (45 minutes was chosen) and the risk that there will be a collision if the person suffers a fit whilst driving (the figure chosen was 50%). One of the reasons the criminal law does not operate on standards of mathematics is because it does not engage in the attribution of arbitrary values to chances, such as may be appropriate for the development of standards applied by medical practitioners and licensing authorities. (I note in passing that a figure of 45 mins per day behind the wheel may not be terrible relevant to a person who, in the words of Mr Barber when opening this case, drove "enormous distances in his employment with the navy", or, working the other way to a person who usually took the ferry to work).

154 A third reason for at least questioning the conclusion that the accused could not have been driving dangerously because Dr Beran would have recommended that he be given a licence, is that Dr Beran's opinion may not have been unanimous. Dr Worthington appears to have been of the opposite view - at least as at 30 August 2001. Despite being told by the accused that his driving was "minimal" Dr Worthington said that it was of "some concern" that the accused had failed to tell the RTA about his seizure disorder.

155 Even if the accused would have been granted a licence to drive if he had told the truth to the RTA, that does not determine the issue. The test for dangerousness is not whether the accused would have been licensed to drive if he told the truth, but, I repeat, whether at the relevant time, as a result of his condition, the mere fact of him driving in that condition constituted driving in a manner dangerous to another person or persons because driving in that condition subjected them to a real, substantial and significant risk of injury or death 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.

156 The question as to whether the accused would have been granted a licence to drive if he had told the truth may, and I need not decide this now, be relevant on sentence. It does not determine the question of guilt.

157 It is apparent that the standards used by Dr Beran and others are an attempt to balance the interests of those suffering medical conditions which may affect that person's ability to drive and the interests of other road users who may be injured or killed if that medical condition leads to a collision on the roads.

158 Minds may differ as to whether the standard that has been chosen, a 1% increase in the risk of collisions per year is appropriate. Much would depend on the way the risk is expressed. For example if, the 1% figure is used to calculate the chance that a 20 year old will have a collision caused by a seizure in his or her lifetime, I expect that most people would say that the 1% figure was too risky. But if that same figure of 1% is used to compare the lifetime risks of collision for drivers who do suffer the medical conditions referred to in the standards and those who don't, I expect that most people would say that the 1% figure is about right.

159 It is no part of my function, nor would it be the function of any jury hearing this matter, to engage in such judgments. The test of dangerousness is set out in the authorities which bind me and the appropriateness of the standards used by the RTA and the doctors who gave evidence in this case is irrelevant to that test. The comment I have just made is intended to emphasise the fact that I have considered the issue of dangerousness without considering myself bound by those standards.

160 Dr Somerville gave evidence that: "everybody with epilepsy who drives is at increased risk of having a seizure while they're driving"

and "everybody who has a seizure is at risk of having another seizure, and if they drive a car there's a risk that that seizure is going to happen while they're driving".

161 That expression of opinion by Dr Somerville was accepted without question by both the Crown and Mr Barber on behalf of the accused. Dr Beran's evidence was not to the contrary.

162 That part of Dr Somerville's evidence concerns those with epilepsy and those who had suffered seizures generally, but there is also evidence on this issue of particular application to the accused.

163 The accused has epilepsy. Before 2 May 2003, even while regularly taking medication, the accused had had seizures, both nocturnal and daytime. The unchallenged evidence is therefore that there was a risk that he would have another seizure whilst driving, should he continue to drive.

164 From his teenage years (or according to Exhibit U from the age of 10), the accused has suffered from nocturnal seizures which have not been eliminated by any form of medication. He continued to suffer from nocturnal seizures up until 2 May 2003. He was taking his medication regularly but the nocturnal seizures still occurred. The accused also has had a number of daytime seizures. His first appears to have been in a lift in North Sydney in 1970. He had one in 1986 whilst in uniform, 3 in early 1987 (exhibit T), one in 1991 (exhibit 1) and one in 1993 which led to a significant motor vehicle collision involving 4 cars. Thus in a period of about 7 years there is evidence of 6 daytime seizures. Dr Worthington's "concern" expressed in 2001 at the accused's failure to tell the RTA about his seizure disorder seems, in the light of subsequent events, to have been entirely justified. On the other hand there is no evidence of any daytime seizure between 1993 and 2003 although the nocturnal seizures continued.

165 I am not entirely sure that I have before me evidence of all of the daytime seizures suffered by the accused. After all, as the Crown points out, the accused may well have lied about the number of daytime seizures he suffered. Further some of the earlier seizures appear to have been "in the morning on waking" (see exhibit Q) - whether they are more accurately described as nocturnal or daytime I don't know because neither of the Doctors was asked. Nevertheless I will proceed on the basis that the accused's history of daytime seizures is accurately set out above - a number of such seizures up to 1993, but none between 1993 and 2003.

166 Of relevance also to the risk of a collision following a seizure whilst driving is the fact that, as the accused told Dr Somerville, he would have no warning of an approaching attack. It may be one thing in terms of objective dangerousness for a person to be driving where there is a risk of seizure which would be preceded by a significant period in which the person can tell that a seizure is about to develop, and a case such as the present where the attacks come without much, if any, warning.

167 In the light of what I am about to now say it is important to remember that the issue I am presently considering is whether the accused's driving was objectively dangerous. His knowledge or otherwise of the level of risk that he presented to other road users is, at this stage, irrelevant.

168 There are 2 matters to which I have not yet referred which I have taken into account in assessing the objective dangerousness of the accused's driving on 2 May 2003. The 2 matters are related.

169 The first matter is that the evidence suggests that the accused was developing sleep apnoea leading up to 2 May 2003, and suffering from sleep apnoea that day. Dr Beran was asked: Q. Is it possible that at the time prior to the accident that Mr Gillett was suffering from sleep apnoea if he was diagnosed later last year with that complaint?

A. Most definitely. But it was not diagnosed prior to it.

170 The second matter to which I have yet to refer, clearly related to the first, is that the accused continued to have daytime seizures after the 2 May 2003 (that evidence is to be found in Dr Beran's report exhibit 1).

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