Conviction Appeal - Robert James Kingston

[2008] NSWDC 86

CITATION:	Conviction Appeal - Robert James Kingston [2008] NSWDC 86
HEARING DATE(S):	10 April 2008
JUDGMENT DATE:	10 April 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Phegan DCJ
DECISION:	Appeal allowed. Conviction quashed. Application for costs refused.
CATCHWORDS:	Appeal against conviction - Mid-range PCA - Effect of Zolpidem (Stilnox) - Defence of automatism
LEGISLATION CITED:	Road Transport (Safety & Traffic Management) Act 1999
CASES CITED:	SS Hontestroom v SS Sagaporack [1927] AC 37 R v O'Connor (1980) 146 CLR 64 Abalos v Australian Postal Commission (1990) 171 CLR Youssef (1990) 50 ACrimR 1 Edwards v Macrae (1991) 15 MVR 193 Russell (1993) 70 ACrimR 17 Fox v Percy (2003) 214 CLR 118 Tucker v The Police [2004] SASC 239 Jamal Charara v The Crown [2006] unreported NSWCCA 244
PARTIES:	Director of Public Prosecutions Robert James Kingston
FILE NUMBER(S):	07/12/1440
COUNSEL:	Mr D Clarke Mr C Steirn (SC)
SOLICITORS:	Director of Public Prosecutions Peter J Arnott & Co

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JUDGMENT

1 HIS HONOUR: This is a case by way of appeal against conviction from the Hornsby Local Court in which the appellant, Robert Kingston, was convicted of driving with a mid-range PCA of 0.105 under s 9(3)(a) of the Road Transport (Safety and Traffic Management) Act 1999. The appellant had pleaded not guilty but a verdict of guilty was entered and he was the subject of a costs order for $70, an order for a disqualification of his driver’s licence for a period of three years and he was released on a s 9 bond, also for a period of three years. If I could just attempt to outline the circumstances of the offence, relying on the evidence at the trial, both oral and by way of statements which were tendered before the learned Magistrate.

2 On 28 April 2007 the appellant had invited a friend, Deke Rayner-Harvey to spend the evening with him at his home at 124/25 Bess Street, Lane Cove. Prior to Mr Rayner-Harvey’s arrival, the appellant cooked himself dinner and his evidence was that, in the course of dinner, he drank one 330ml stubby of Heineken beer. After Mr Rayner-Harvey’s arrival at about 8pm, the two of them watched a movie on television and during the course of the next two-and-a-half hours, they consumed between them a number of stubbies of beer. The appellant’s estimate was that he had two more Heineken’s, and then three small bottles of Sol beer which was his share of the half dozen which Rayner-Harvey had brought with him. When Mr Rayner-Harvey left, he told Mr Kingston to make sure he got a good sleep. This was because Mr Kingston had had some difficulty sleeping over the last two months. However, Mr Kingston still delayed going to bed for a short time. He had a snack, but remembering what his friend had told him, he decided to take a Stilnox tablet, which he had obtained on prescription on the advice of a plastic surgeon whom he had seen about some other…