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

- 1 -

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 matter. This was the first of such tablets he had ever taken. Having taken the tablet, he watched TV for a short time, got undressed and went to bed. His own recollection of the events which immediately followed is totally blank until the following morning when he found himself on the lounge at Mr Rayner-Harvey’s home in Greenwich, where he had apparently spent at least part of the rest of that night.

3 The gap in events in his own recollection is filled by the evidence of a number of other witnesses in the Local Court including Mr Rayner-Harvey, as well as police officers who were called to the scene of a motor vehicle accident involving Mr Kingston and other witnesses to that accident. At about 12.30am on Sunday morning, 29 April 2007, at a point west of a bend in a road which changes its name from Bridge Street, or River Road, Lane Cove, to Penrose Street there was a head-on collision involving the Mazda 3 motor vehicle owned and driven by the appellant and a Honda Odyssey. The collision occurred on the side of the road where the traffic was travelling in an easterly direction. The appellant was travelling in a westerly direction and, on the evidence of one of the independent witnesses, been travelling on the wrong side of the road for some distance before the bend. He continued to travel on the wrong side of the road after the bend had been completed and drove head on into the Honda travelling in an easterly direction, on the correct side of the road.

4 Witnesses described the appellant’s behaviour following the motor vehicle accident, including his efforts to get back into his car. He was described as being unsteady on his feet, his eyes were glazed and his speech was slurred. He was, upon the arrival of the police, subjected to a breath analysis which resulted in a measurement of his blood alcohol level of 0.105. Following his waking up at Mr Rayner-Harvey’s place the following morning, he went, at Mr Rayner-Harvey’s suggestion to a medical centre where he undertook a blood test, the results of which are exhibit 1 before me. The test shows some residual evidence of Stilnox in his blood at that time.

5 The appeal is brought against the conviction essentially on the basis of the defence of automatism which, if established in the appropriate way, and I will deal with that aspect of the matter in more detail in due course, should, on the appellant’s case, lead to a verdict of not guilty. There was a considerable amount of evidence concerning the behaviour of the appellant over the period from the time Mr Rayner-Harvey left him at his own home until after the motor vehicle accident. For example, Mr Rayner-Harvey gave evidence of a telephone call at about seventeen minutes past midnight on the Sunday morning when, presumably, the appellant had not yet gone to bed. Mr Rayner-Harvey described a voice message from the appellant complaining of couples outside his premises looking for a room to rent. Mr Rayner-Harvey, having heard the message, called the appellant and asked him what he was talking about, at which point the appellant repeated that there were three couples outside his premises wanting to rent a room. Mr Rayner-Harvey, who found it difficult to understand what was happening at the other end of the phone, attempted to reassure the appellant by telling him it was probably some people from a party in the apartment block next door and that he should lock his doors and windows and just go to bed.

6 It was about half an hour later that Mr Rayner-Harvey received another call this time from the scene of the accident, asking him to come to the scene of the accident which Mr Rayner-Harvey then did. Since he did not live more that five or ten minutes away, he was on the scene shortly after. Mr Rayner-Harvey also gave evidence of the incoherent behaviour of the appellant from the time they went to Chatswood Police Station, where the appellant was first taken following the motor vehicle accident, and on the way from the Police Station back to the home unit at Greenwich where Mr Rayner-Harvey lived. There was, for example, an argument in the car on the return journey to Greenwich about the make of Mr Rayner-Harvey’s vehicle which Mr Rayner-Harvey found impossible to explain because of the fact that cars and their various makes and models were frequently the subject of conversation between the two of them and it was therefore entirely mystifying that the appellant should be making assertions about the make and model of Mr Rayner-Harvey’s car which were completely incorrect were known to the appellant.

7 At the time he was found at the scene of the accident, until the return home the next morning with Mr Rayner-Harvey, the appellant was dressed in t-shirt and shorts with no shoes or socks in what was, on the evidence, confirmed by way of a certificate from the Bureau of Meteorology, a temperature in the vicinity of sixteen degrees centigrade. I do not propose to review the evidence exhaustively, but there were other illustrations of incoherent assertions and questions on the part of the appellant during the time he was with Mr Rayner-Harvey following the motor vehicle accident. For example, at one point when they had arrived back at Mr Rayner-Harvey’s home, he took the police papers which had been given to him at the police station and asked Mr Rayner-Harvey what this was all about. When they returned to the appellant’s home that morning, Mr Rayner-Harvey found that the heater was on and that all of the internal doors inside the premises had been locked from the inside. Another situation which remains entirely unexplained in any rational sense.

8 The question of the state that the appellant was in at the time of the commission of the offence which is central to the appeal and to the question of the application of the defence of automatism was the subject of a detailed report which was tendered before the Local Court and written by a Dr Geraldine Moses, a pharmacologist, on the subject of the effects of the active ingredient of the drug Stilnox which is known as Zolpidem. In the early part of that report, under the heading “Executive Summary”, Dr Moses states:

“Recent media coverage has triggered an avalanche of adverse drug reports associating Zolpidem with sleep-driving and other bizarre behaviours occuring during sleep. These are now understood to represent a drug induced sleep disorder called parasomnia. Medical literature is sparce on this topic, but in April 2007 the Theraputic Goods Administration was sufficiently satisfied with the strength of the link between sleep-driving and Zolpidem to request that manufacturers include a warning of such an association with use of this drug.”

And in the following paragraph Dr Moses goes on:

“In my opinion it is very likely that Mr Kingston experienced Zolpidem-induced sleep-driving. The fact that he consumed a considerable amount of alcohol before taking the Zolpidem increased the risk of sleep-driving. However, at the time of his adverse event, I believe there was insufficient warning from the manufacturer for him to be aware that sleep-driving was a possible outcome of his actions.”

9 It was the evidence of the appellant that he had not been given any such warning and he was not aware of the risk of taking the drug in the circumstances in which he took it.

10 One further piece of evidence that was not available to the learned Magistrate for obvious reasons were documents issued by the Commonwealth Department of Health, first of all by way of what appears to be a report of the Theraputic Drugs Administration, dated 27 November 2007 and a second media release of 21 February 2008. In the Theraputic Goods Administration Report, there is the following comment, referring to what is described in the report as Consumer Medicine Information (CMI):

“Side effects of Zolpidem now include: (Less common adverse side effects include unexpected changes in behaviour, these have included rage actions, worsened insomnia, confusion, agitation, hallucinations and other forms of unwanted behaviour). Sleepwalking, driving motor vehicles, and other unusual and on some occasions dangerous behaviours whilst apparently asleep.”

And in that context, the report goes on to say:

“People experiencing these effects have had no memory of these events.”

11 In Dr Moses’ report, she makes some further comments about the concept of sleep-driving and the possible connection between that condition and the use of the drug Zolpidem.

“Zolpidem appears to trigger sleep driving by inducing a sleep disorder known as parasomnia. Parasomnias are abnormal behaviours that can occur during any part of the five phases of sleep which represent a disorder of arousal occurring when a person is in a mixed state of simultaneously asleep and awake. It is thought that Zolpidem increases the risk of parasomnias because it increases the time spent in stages three and four of non-REM sleep and this is the stage of sleep in which most parasomnias most frequently occur.”

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

13 I am not suggesting that the sequence of events is clearly established on the evidence, it is a matter of inference but certainly reasonable inference, in my view, from all of the circumstances. Also relevant to the evidence in this case are matters which are referred to on p 9 of Dr Moses’ report, where she summarises what she describes as other aspects that unify the accounts of sleep driving reported to the AME line:

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

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

A further point relevant to this case:

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

· When discovered, sleep-drivers are usually reported to act in a strange manner, usually incoherent and or inappropriately disinhibited.

15 Finally, and this is a matter to which I have already referred, although some sleep-drivers can recall glimpses of their sleep-driving episode, the vast majority are amnesic of the event. All of those factors, it is noted, applied to the history of events in this case following the taking of the sleeping tablet by the appellant.

16 I am not about to embark on any detailed consideration of the reasons for the decision of the learned Magistrate which is not necessary on an appeal by way of rehearing. But it does help, in my view, to clarify some of the issues which were the subject of submissions on the appeal to refer to those reasons. The view taken by the learned Magistrate was that all of the observations of the various witnesses of the behaviour of the appellant were as consistent with the effect of alcohol, particularly to the level which was found on the breath analysis, as to the effect of any drug that might have been taken at the same time. The report of Dr Moses was assessed on the basis that it relied heavily on anecdotal material and not on any systematic scientific investigation of the effects of this drug. At least a certain extent, that particular feature of Dr Moses’ report is now supplemented by the publications of the Australian Government to which I have already referred. The anecdotal evidence which remained in a very inconclusive state at the time of the trial has now gained much greater currency in view of scientific material which has been collected over the intervening period. In addition it is a matter of judicial notice that over that same period the drug Stilnox has been the subject of very considerable media attention because of the concerns about the effects that it might have including sleep-driving of the kind that appears to have occurred in this case.

17 Another important point about the evidence of Dr Moses at the trial is that it was not the subject of any other evidence of a scientific kind tendered by the Crown. It therefore was evidence entitled to considerable weight in the circumstances. However, this did not remove the weaknesses - if I can use that term - in the report which were identified by the learned Magistrate but which, in my view, are substantially, not necessarily overcome, but certainly alleviated by the additional evidence before me.

18 I now turn to the relevant authorities which were the subject of submissions on this appeal, first of all to the passage from the judgment of the Chief Justice of the High Court in the case of O’Connor (1980) 146 CLR 64 at 71, 72, which was quoted in the case on which the Crown placed particular reliance of Russell, a decision of Cox J in the Supreme Court of Tasmania reported in (1993) 70 ACrimR at 17:

“The state of drunkenness or intoxication can vary very greatly in degree. A person may be intoxicated in the sense that his personality is changed, his will is warped, his disposition altered, or his self control weakened, so that whilst intoxicated to this degree he does not act voluntarily and intentionally which in a sober state he would or might have done. His intoxication to this degree, though conducive to and perhaps explanatory of his actions, has not destroyed his will or precluded the formation of any relevant intent. Indeed intoxication to this degree might well explain how an accused, otherwise of good character, came to commit an offence with which he is charged.

Intoxication to the stated degree might have rendered an accused less aware of what he was doing, or of its quality, significance or consequence. But, if voluntary, his acts remain his: and he intends to perform them. So long as will and intent are related at least to the physical act involved in the crime charged, and saving for the moment the case of a crime of so called specific intent, the fact that the state of intoxication has prevented the accused from knowing or appreciating the nature and quality of the act which he is doing will not be relevant to the determination of guilt or innocence.”

And the Chief Justice added in that part of the judgment:

“But the state of intoxication may, though perhaps only rarely, divorce the will from the movements of the body so that they are truly involuntary.”

19 Addressing the question of involuntariness, in the sense contemplated in O’Connor, the Chief Justice of the Supreme Court, as he then was, Gleeson CJ, in the case of Edwards v Macrae (1991) 15 MVR 193 said at pp 196 to 197:

“The examples given in the reported cases concerning automatism in driving a motor vehicle almost all deal with quite brief periods during which a person at the wheel of a moving vehicle is not really in control of it or, for that matter, of himself. It may be possible that a state of automatism could be consistent with more prolonged driving of a vehicle, but, no doubt, if any suggestion were made it would attract close scrutiny. It is important to distinguish automatism from mere impairment of capacity or judgment, even though such impairment may be of a high degree. That distinction is of particular relevance where alcohol is involved.

The courts have repeatedly stressed that automatism is a narrow concept and that cases of it will be relatively rare.

…

It may be supposed that a court would receive with some scepticism a suggestion that a person had safely driven a motor vehicle over a substantial time and distance in a state of automatism. However, that would be a matter for evidence in the individual case.”

20 This was not a case of a motor vehicle being driven over a substantial time and distance, although it does seem that the Chief Justice was still addressing what might be described as the more familiar case of automatism, such as the bee sting or some other momentary deflection from concentration which rendered the connection between mind and action impossible for a very short period of time. Having said that, there is no doubt at all that his Honour did not have the benefit of any evidence - indeed, it is unlikely that there would have been in 1991 - of the kind of condition which is now suggested on the basis of Dr Moses’ report the appellant was suffering at the time of the accident.

21 The evidence in this case must still be measured against those cautionary statements of principle, which limit automatism as a defence to be applied with considerable care and only after a very careful scrutiny of the evidence.

22 The Crown case, as I have already foreshadowed, which was accepted in the Local Court, is that the evidence does not take the matter beyond the effects of intoxication. Even if it is accepted that the intoxication may have in some way been exacerbated by the taking of the drug, the condition was still one of intoxication rather than any state of automatism.

23 Before leaving the decision in Russell the facts of that case in which it was held that the defence of automatism did not apply, relying on the principles which I have just referred to, can be distinguished in two important respects from the facts in this case. First of all, the level of concentration of alcohol in that case was 0.182, close to twice as high as in this case. Such a concentration of alcohol was clearly accepted as reaching a point where it was unlikely that the use of the drug Rohypnol in that case materially enhanced the level of intoxication. It is much less likely, and certainly this is implicit, if not explicit, in Dr Moses’ report, that a blood alcohol level of a little over .1 would have caused a state of intoxication which would have generated the kind of bizarre behaviour exhibited by the appellant during the period immediately before, at and after the motor vehicle accident.

24 The other matter that distinguishes this case from the facts in Russell is the substance of the expert evidence which was given in that case, which was far more equivocal than the report of Dr Moses with regard to the independent effect of the drug Rohypnol as distinct from the effects of alcohol. In the course of his evidence in that case the expert witness said:

“All I can say is that with such a high blood alcohol concentration some people could in fact have done what has been suggested that the defendant did. And certainly if you go and add Rohypnol you are going to have the possibility of him doing the very same thing.”

25 As I understand that evidence this was a quantitative not a qualitative distinction that the expert was making. As I understand Dr Moses’ report in this case, she is making a qualitative distinction, that is the effect of intoxication from alcohol is of a quite different kind from the effect of the drug Stilnox, and that the combination of symptoms demonstrated in this case could only be explained as a consequence of taking the drug even though its impact would have been exacerbated by the prior consumption of alcohol.

26 I am satisfied on the evidence that it has been established that the explanation for the behaviour, and, therefore, the state in which the appellant was at the time of the accident was a consequence of the effects, unknown to the appellant, of the sleeping tablet which he had taken within an hour or two before the motor accident. On the evidence of the conditions which that drug can have, this was a case of what is now described as sleep driving. I acknowledge, in coming to that conclusion, that the scientific evidence is still very much at the threshold. I acknowledge the reservations expressed in the Local Court that all of the evidence is still not in. On the other hand, the scientific knowledge has moved to the point where, for example, the Federal Department of Health now requires, through the Therapeutic Goods Administration, a warning on this particular product concerning the dangers of using it in circumstances, particularly following the use of alcohol, the consumption of alcohol, and of the possibility, for example, of a person engaging in bizarre behaviour, which explicitly includes sleep driving. That, in my view, takes the case on the medical evidence, on the scientific evidence, far enough to at least raise a possibility, a real possibility that the explanation for what happened on this occasion was a state of sleep driving caused by the use of the drug.

27 With regard to the law that is applicable to the question of burden of proof in such a case, I refer first of all to the decision in Youssef, a decision of the Court of Criminal Appeal, New South Wales, reported in 1990, 50 ACrimR at 1. Hunt J on page 4 of that judgment said:

“If the accused is able to point to or to produce evidence from which it could be inferred that there is at least a reasonable possibility that his act was involuntary as a result of a state of automatism, the Crown in effect bears the onus of removing the reasonable doubt thereby raised, by establishing that the act was voluntary.”

In my judgment the Crown has failed to remove such doubt in this case.

28 A further matter raised by the Crown on the appeal was the approach that the Court should take in an appeal by way of rehearing of this kind from a decision of the Local Court, and reference was made in this respect in two judgments. The first of them is in the case of Jamal Charara v The Crown, an unreported decision of the Court of Criminal Appeal [2006] NSWCCA 244. In his judgment the President of the Court of Appeal, Mason P, referred, amongst other cases, to the decision of the High Court in the case of Fox v Percy (2003) 214 CLR 118, and quoted from the judgment of the Chief Justice of the High Court, Gleeson CJ, Gummow and Kirby JJ at para 23:

“On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other hand, it must, of necessity, observe the ‘ natural limitations’ that exists in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘ feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.”

29 There was also reliance place on a similar statement from the decision of the Supreme Court of South Australia of White J in the case of Tucker v The Police [2004] SASC 239, and I quote from para 60 of that judgment:

“The principles which govern appeals in relation to findings of fact by the primary trier of fact are well known. Abalos v Australian Postal Commission (1990) 171 CLR 167, McHugh J, with whom Mason CJ, Dean, Dawson and Gordon JJ agreed, quoted with approval the following passage from the judgment of Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47:

“Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.”

30 While I am sensitive to the sentiments expressed in those judgments and to the importance of acknowledging the advantage which a trial court has in being able to observe witnesses who give oral evidence, that was not an issue of any consequence in this case. As I understand it, there was not a great deal of dispute about the oral evidence of the lay witnesses whose accounts I have condensed into a brief summary of the facts. To the extent that there were inconsistencies they were, for example, very much of the appellant’s own making in the range of different explanations which he gave at the accident which could not be reconciled and which simply contributed to the bizarre behaviour the appellant at the time. But the broad outline of the circumstances were not the subject of any challenge except to the extent that the Magistrate, for example, expressed reservations about some of the evidence given by Mr Rayner-Harvey about various events during the course of that evening.

31 Having carefully considered that aspect of the judgment, I am not satisfied that there was any other evidence to justify refusing to accept Mr Rayner-Harvey’s evidence and I do not in that regard believe that seeing Mr Rayner-Harvey in the witness box would have greatly assisted in that particular regard. The reason for that is that much of the discussion of the evidence in the trial court was based on assumptions about what was likely to have happened as distinct from any observations about the demeanour or presentation of any particular witnesses in the witness box, and this in turn was influenced by the view which the learned Magistrate took of the evidence of Dr Moses. But Dr Moses was not challenged as a witness of truth. It was the limits of scientific proof of the effects of Zolpidem which quite properly concerned the Magistrate. But those are matters which can be equally well assessed on appeal.

32 This is not a case where the matters on appeal are substantially affected by the matters on which the appellate courts have commented on so many occasions concerning advantages which trial courts have over appellate courts with regard to oral evidence.

33 I will return to the evidence which, in this case, meets the criteria stated in Dr Moses’ report and distinguish it from the facts in the case of Russell. I have already commented on the substantially lower concentration of alcohol in this case. I have also referred to the appellant’s state of undress in what were conditions that clearly required much more substantial clothing than he had on at the time, to the range of bizarre hallucinations where were certainly not in the evidence in Russell and the unexplained locking up of the rooms from the inside prior to the appellant leaving the premises and taking his car out. There is also the total amnesia, which I am not suggesting cannot occur in a high degree of intoxication resulting from alcohol, but which is certainly much more readily associated with a condition of the kind which, on Dr Moses’ analysis, is a consequence of the use of this particular drug.

34 In all the circumstances, I am satisfied that the burden placed on the accused, in the terms of the judgment in Youssef, to point to or produce evidence from which it could be inferred, that there is at least a reasonable possibility that the act was involuntary as a result of a state of automatism, has been discharged. The burden which then rests on the Crown to remove such reasonable doubt has, on the other hand, not been discharged. I therefore find that the offence has not been proved and that therefore there should be a verdict of not guilty.

ORDERS: Appeal allowed. Conviction quashed. Application for costs refused.

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