Police v Barber - [2010] SASC 329

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BARBER
[2010] SASC 329
Judgment of The Honourable Justice White
26 November 2010
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - AUTOMATISM
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS
Respondent was charged with the offences of operating a vehicle without headlights; driving without due care; failing to comply with the reasonable directions of a police officer in relation to breath analysis; and driving a vehicle while a prescribed concentration of alcohol was present in her blood, in contravention of a condition of her provisional driver's licence (the "PCA" charge) - Magistrate dismissed all charges.
Whether Magistrate correct in finding that the prosecution had not established a case to answer on the PCA charge - whether Magistrate correct in finding that the respondent's driving of the vehicle was involuntary because she was acting as an automaton, and correct in finding that the prosecution had not established non-compliance by the respondent with the reasonable directions of a police officer concerning breath analysis.
Held: appeal allowed in respect of the first, second and fourth counts - Magistrate gave insufficient weight to the evidence of a police officer concerning the respondent's conduct - Magistrate relied inappropriately on the evidence of a psychiatrist whose expertise in relation to the drug Stilnox (which was said to have made the respondent an automaton) was limited and whose evidence did not, in a number of respects, comply with the requirements for expert opinion evidence - Magistrate should have found a case to answer on the PCA charge - appeal dismissed in relation to the third count as the Magistrate was correct in finding that the prosecution had not established that the breath analysis instrument used for the testing of the respondent was in good working order and condition - retrial ordered on first, second and fourth counts.
Australian Road Rules r 215; Road Traffic Act 1961 (SA) s 45, s 47E, s 47EB, s 47K, s 47H; Motor Vehicles Act 1959 (SA) s 81A; Criminal Law Consolidation Act 1935 (SA) s 267, s 268; Evidence Act 1929 (SA) s 35; Road Traffic (Miscellaenous) Regulations 1999 (SA) reg 8A, referred to.
Myers v The Director of Public Prosecution [1965] AC 1001, distinguished.

POLICE v BARBER
[2010] SASC 329
Magistrates Appeal

WHITE J: The respondent was acquitted of four charges arising out of her driving of a car in the early hours of 28 April 2008. A Magistrate found that although the appellant was undoubtedly driving the car, she was at the time functioning as an automaton so that her driving had been involuntary. He found that this state was caused by the effects of the drug Zolpiden, which is sold under the trade name Stilnox, and was exacerbated by the appellant’s consumption of alcohol, which consumption had itself occurred while she was functioning as an automaton.
The police now appeal against each of the acquittals.
Outline of the Prosecution Case and the Trial
At about 1.00 am on Monday, 28 April 2008, the respondent was seen at the wheel of a Nissan coupé in the carpark of the Earl of Leicester Hotel in Leicester Street at Parkside. She was attempting to perform a three-point turn. This was difficult as the front left-hand tyre was entirely deflated.
Eventually the respondent completed the turn, exited the carpark and drove west on Leicester Street to its junction with George Street. The headlights of the Nissan were not illuminated. The appellant turned left onto George Street and drove south some 100 metres before turning left again to follow the continuation of George Street into Duthy Street.
Sgt Clark, a police officer who had been alerted to the respondent’s behaviour, followed the respondent in a police vehicle. He saw that, by reason of the deflated front tyre, the skirting at the front of the Nissan was scraping on the road surface. He activated the flashing roof lights and the siren on the police car and the respondent immediately stopped the Nissan at the left‑hand kerb.
Sgt Clark required the respondent to submit to an alcotest, which was positive. He then required her to accompany him to the Netley Police Station for the purposes of breath analysis. The respondent did so, but despite eight attempts, produced sufficient breath for an analysis on only one occasion.
Arising out of these events, the respondent was charged with four offences: driving a car on a road at night without the headlights operating, contrary to r 215(1) of the Australian Road Rules; driving without due care, contrary to s 45 of the Road Traffic Act 1961 (SA) (RTA); failing to comply with the reasonable requirements of Sgt Clark in relation to the breath analysis, contrary to s 47E(3) of the RTA; and breaching a condition of her provisional driving licence by driving while there was a concentration of alcohol in her blood, contrary to s 81A(5) of the Motor Vehicles Act 1959 (SA) (MVA).
The respondent pleaded not guilty to all four offences.
At her trial, the prosecution case comprised evidence from Sgt Clark and certain documents.
The Magistrate upheld the respondent’s submission that the prosecution had not established a case to answer with respect to the charge of breaching a condition of her provisional driving licence and entered a verdict of not guilty on that charge at the conclusion of the prosecution case,.
In relation to the remaining charges the respondent then gave evidence herself and called evidence from Dr Raeside, a forensic psychiatrist. In addition, she tendered certain documents.
The Magistrate acquitted the respondent of the remaining three charges.
The grounds of appeal challenge the correctness of the Magistrate’s conclusions that the respondent had been driving the vehicle involuntarily; that the prosecution had not proved non-compliance by the respondent with the reasonable directions of a police officer with respect to breath analysis; that by reason of the involuntariness of her driving the respondent was not legally obliged to submit to breath analysis; and that the prosecution had not established a case to answer on the charge that the appellant had driven a vehicle while there was a concentration of alcohol in her blood.
The Magistrate’s Reasons
The Magistrate accepted that the evidence of Sgt Clark was reliable. He was also impressed with the evidence of Dr Raeside and noted that the prosecution had not challenged the qualifications, experience and expertise relied upon for his expression of expert opinion. Finally, the Magistrate accepted that the respondent’s evidence had been honestly given and that it was reliable. In relation to the respondent’s evidence the Magistrate said:
[77]… It is my view that Ms Barber gave her evidence with compelling honesty and candour. She is, in my opinion, a person of obvious good character. I discerned no hint of dishonesty, mistaken reconstruction, exaggeration or confusion in her evidence.
[78]She is, in my view, a person lacking the dishonesty and sophistry that would be required to have fabricated the factual circumstances to which she deposed and to have maintained that fabrication throughout the course of the matter, including by giving perjured testimony.
In consequence, the Magistrate accepted the whole of the respondent’s evidence.
The Magistrate was satisfied that the prosecution had established the objective elements of the first two offences. That is, in relation to Count 1, the Magistrate was satisfied that the respondent was driving the Nissan at night, and that the headlights were not operating. In relation to Count 2, the Magistrate was satisfied that the respondent had driven the Nissan when it was difficult to manoeuvre by reason of the front left tyre being deflated.
Although the offences of driving at night without lights and driving without due care are offences of strict responsibility (in the sense that the prosecution did not have to prove an intention by the respondent to commit them) the Magistrate concluded that it was necessary for the prosecution to prove that the respondent’s driving was voluntary.
The Magistrate made a positive finding that the respondent’s conduct at all relevant times was not voluntary. That is, the Magistrate’s acquittals did not rest on the conclusion that the prosecution had not excluded as a reasonable possibility that the respondent’s conduct was not voluntary: he was positively satisfied that it was not.
The evidence which the Magistrate relied upon for this conclusion was as follows. In 2006, Dr Chow, a psychiatrist, had prescribed the drug Stilnox, a prescription only medication, for the respondent. A tendered report from Dr Chow did not specifically confirm the prescription but was consistent with the respondent’s evidence that she had. Stilnox is a form of sedative. The respondent used this medication daily for a time and then reduced her usage.
The respondent had finished work at about 6.30 pm on 27 April and had then gone to a hotel to meet her partner and some of his friends. She was at the hotel until about 10.00 pm. During that time she consumed a meal and one glass of white wine. The respondent then caught a taxi to her home at Forestville intending to have an early night. At about 10.15 pm she took a Stilnox tablet.
The respondent’s next memory was of being woken by her partner at about 7.00 am on the following morning, when he was enquiring as to the whereabouts of his Nissan. At that stage she thought she had spent the whole night in bed. However, shortly after rising, she found in her handbag the notice of instant driver’s licence disqualification given to her by Sgt Clark together with a copy of the printout from the Drager breath analysis instrument. The respondent also saw that four or five of the sample liqueur bottles which she had brought home from work the previous afternoon had been opened and the contents gone.
The Magistrate accepted that the respondent had risen from her bed sometime after falling asleep at about 10.30 pm. He could not make a finding as to how long she had been in bed before rising. Having risen, the respondent had opened the sample liqueur bottles and had consumed their contents. She had then left the house and got into her partner’s Nissan. Her movements from that point to the time when she was observed by Sgt Clark in the car park of the Earl of Leicester Hotel are not known. The Magistrate accepted, however, that sometime during the course of that journey, the left front tyre of the Nissan had deflated.
The Magistrate accepted Sgt Clark’s observations of the respondent in the period commencing at about 1.00 am in the car park of the Earl of Leicester Hotel and concluding at about 3.00 am when Sgt Clark drove her home on the completion of the breath analysis process. I shall return to those observations shortly. He also accepted that the respondent had no memory of anything which had occurred between going to bed at about 10.30 pm and being woken by her partner at about 7.00 am the following morning.
The Magistrate’s findings that the respondent was functioning as an automaton appear in the following paragraphs:
[102]I accept that at all times between 10.30 p.m. and 7.00 a.m. when she was out of bed she was functioning as an automaton and her behaviour was involuntary. She had no intention to, or awareness of, as the case may be, the fact that she was out of bed, the fact that she consumed a number of the bottles of liqueur, the fact that she got into and drove [her partner’s] vehicle, the fact that she drove the vehicle without operating the headlights and the fact that the front left tyre of the vehicle was deflated.
[103]She was, as described by Dr Raeside, operating in a state of disassociation between mind and body. She was not acting in response to the exercise of a free will as that term is generally understood. Her actions were not as a result of the exercise of “choice” following the interaction of mind and body as experienced countless times in the course of a lifetime by all persons who have moved beyond infancy and early childhood and attained an appropriate level of cognitive function.
[104]I find that the state of automatism was caused by the effects of the Stilnox tablet and was operating from the moment she arose from her bed, and was exacerbated by the consumption of the liqueurs, that consumption having occurred whilst she was functioning as an automaton.
[105]I accept that the fact that she was so functioning was not apparent to Sergeant Clark and that her actions and conversation did not appear to him to be other than within normal parameters.
The Magistrate relied on Dr Raeside’s evidence for the findings made in these paragraphs.
The Magistrate then identified some additional features of the respondent’s conduct, demeanour and speech which he considered supported the view that the respondent was operating as an automaton. These features were as follows:
[106] …
1.    She left home late at night, or in the early hours of the morning, dressed in her bed clothes, which in my view was totally out of character. On my assessment she is a young woman who takes pride in her appearance and would be mortified with embarrassment if she knew she was out in public dressed, effectively, in pyjamas.
2.     She drove Ryan’s vehicle, which was not her usual practice.
3.    She consumed the contents of a number of sample liqueur bottles which she would only have done consciously in those circumstances (after she had prepared for and gone to bed to sleep) if she was suffering from alcoholism or some similar affliction.
4.     She drove to a location without having any reason to be at that location.
5.    She drove a vehicle with one tyre totally deflated. In my view, in ordinary circumstances, even allowing for this purpose a concentration of 0.091 grams of alcohol in a 210 ml of blood, Ms Barber would not have driven a vehicle, especially her partner’s vehicle, with a flat tyre and with the skirting shredding as it made contact with the road. She would have stopped and sought assistance. She certainly would not have done what she did, which was bound to attract the attention of police if she had any awareness that she was or could have been “over the limit” for drink driving purposes. In that respect, on any view, she had not consumed sufficient alcohol to have been unaware , assuming a normal state of consciousness, of the possibility that she may have been “over the limit” if stopped by the police. Therefore, the very fact that she acted in a fashion which was likely to attract police attention is, in my view, consistent with her being subject to an impaired consciousness as she contends.
Finally, the Magistrate considered that some of the statements which the respondent had made to Sgt Clark were nonsensical and, could be explained rationally only on the basis that the respondent was behaving as an automaton. The Magistrate identified the following statements:
[107] …
1.    That she had taken a couple of Valium to relax. I accept that she had never used Valium.
2.    That she remembered late at night that she “had a couple of things to do and drove”. Surely not at 1.00 a.m. in the morning!
3.     That she had taken two Valium and two Lexepro.
4.     That she suffered from asthma and only had one and a half lungs.
On the basis of these findings, the Magistrate concluded that the respondent was, at the relevant times, “subject to a state of consciousness which was impaired to the point of criminal irresponsibility”.
Finally, the Magistrate was satisfied that s 268 of the CLCA did not require the respondent’s consciousness or voluntariness to be presumed. This was because she had consumed the Stilnox for a therapeutic purpose, and because the consumption of alcohol had itself been a product of her acting as an automaton. There was no suggestion on the appeal that these particular findings were incorrect, and it is not necessary to discuss them further.
The Requirement for Voluntariness
The Magistrate’s conclusion that it was necessary for the prosecution to prove that the respondent’s driving was voluntary was correct.
It is of the essence of criminal responsibility that an accused perform the acts in question consciously and voluntarily.[1] In Ryan v The Queen[2] Barwick CJ said:
In my opinion, the authorities establish, and it is consonant with principle, that an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act. The lack of that exercise which precludes culpability is not, in my opinion, limited to occasions when the will is overborne by that of another, or by physical force, or the capacity to exercise it is withdrawn by some condition of the body or of the mind of the accused.[3]
In The Queen v O’Connor,[4] Barwick CJ returned to this topic when he said:
In Ryan’s case I attempted a summary statement of the principle that in all crime, including statutory offences, the act charged must have been done voluntarily, ie accompanied by the will to do it. I find no need to qualify what I then wrote. I stated the principle as without qualification.[5]
(Citation omitted)
[1] The Queen v Falconer (1990) 171 CLR 30 at 39-41; R v Radford (1985) 42 SASR 266 at 272-3.
[2] (1967) 121 CLR 205.
[3] Ibid at 216-7.
[4] (1980) 146 CLR 64.
[5] Ibid at 80.
The principle that the conduct relied upon to constitute a criminal offence must be conscious and voluntary applies as much to traffic offences as it does to the more substantial contraventions of the criminal law. The decision of the High Court in Jiminez v The Queen[6] provides an example. There the accused was charged with causing death by driving a vehicle in a manner which was dangerous to the public. He had told the police that he had fallen asleep before the vehicle ran off the road. In relation to this evidence, the plurality said:
If the applicant did fall asleep, even momentarily, it is clear that while he was asleep his actions were not conscious or voluntary (an act committed while unconscious is necessarily involuntary) and he could not be criminally responsible for driving the car in a manner dangerous to the public. The offence of culpable driving is, in this respect, no different to any other offence and requires the driving, which is part of the offence, to be a conscious and voluntary act.[7]
(Citation omitted)
The plurality also approved the judgment in Kroon v The Queen,[8] in which King CJ said:
Where the driving or apparent driving is deprived of its voluntary character by, for example, automatism or unconsciousness, the offence is not committed.[9]
A recent application of this principle is seen in Police v Guede.[10]
[6] (1992) 173 CLR 572.
[7] Ibid at 577.
[8] (1990) 55 SASR 476.
[9] Ibid at 478.
[10] [2007] SASC 351 at [9]; (2007) 99 SASR 280 at 283-84.
Accordingly, the prosecution had to establish either that the respondent was acting voluntarily or, if by reason of intoxication from consumption of drugs or alcohol she was not, that the intoxication was self-induced.[11] In discharging that onus, the prosecution had the advantage of an evidentiary presumption, sometimes described as the presumption of voluntariness. This presumption was described by Mason CJ, Brennan and McHugh JJ in The Queen v Falconer:[12]
In the absence of some contrary evidence, it is presumed … that an act done by a person who is apparently conscious is willed or done voluntarily. That presumption accords with, and gives expression to, common experience. Because we assume that a person who is apparently conscious has the capacity to control his actions, we draw an inference that the act is done by choice. Keeping steadily in mind that the concepts of will and voluntariness relate merely to what is done, not to the consequences of what is done, it would be an exceptional case in which a person, apparently conscious, committed an act proscribed as an element in a criminal offence without choosing to do so … The presumption that the acts of a person apparently conscious, are willed or voluntary is an inference of fact and, as a matter of fact, there must be good grounds for refusing to draw the inference. Generally speaking, grounds for refusing to draw the inference appear only when there are grounds for believing that the actor is unable to control his actions. Although the prosecution bears the ultimate onus of proving beyond reasonable doubt that an act which is an element of an offence charged was a willed act or, at common law, was done voluntarily, the prosecution may rely on the inference that an act done by an apparently conscious actor is willed or voluntary to discharge that onus unless there are grounds for believing that the accused was unable to control that act.[13]
(Citations omitted)
[11] Criminal Law Consolidation Act 1935 (SA) (CLCA) s 268(2), s 267A.
[12] (1990) 171 CLR 30.
[13] Ibid at 40-1. See also Gaudron J at 83.

As can be seen from this passage, although the prosecution carried the ultimate onus of proving that the respondent’s conduct was voluntary, the respondent herself had an evidentiary onus. The respondent sought to discharge that evidentiary onus by giving evidence herself and by leading evidence from Dr Raeside.
Was the Respondent Driving the Vehicle Voluntarily?
The appellant’s challenge to the Magistrate’s finding that the respondent’s driving had not been voluntary had a number of facets. First, it contended that the Magistrate had failed to give any or sufficient weight to Sgt Clark’s evidence and the inferences arising naturally from that evidence. The appellant submitted that the only inference which could be drawn from an acceptance of Sgt Clark’s evidence was that the respondent had at all times been acting both consciously and voluntarily.
Secondly, the appellant submitted that the Magistrate had erred by relying on Dr Raeside’s evidence. Thirdly, the appellant impugned some of the steps in the Magistrate’s own reasoning.
It is convenient to discuss these facets in turn.
Sgt Clark’s Evidence
As noted earlier, Sgt Clark followed the plaintiff into George Street. After the plaintiff had turned left to follow the continuation into Duthy Street, Sgt Clark activated the roof lights and siren of his police vehicle. Within a distance of about 50 metres the respondent pulled the Nissan to the left‑hand kerb and parked it (albeit that the car was not exactly parallel with the kerb).
Sgt Clark then approached the driver’s door of the Nissan and spoke to the respondent. He thought that she was obviously affected by drugs or alcohol, and appeared to be sleepy He asked the respondent for her full name, her date of birth, her occupation and her home address. The respondent gave him those details and, at Sgt Clark’s request, produced her driver’s licence to him. Sgt Clark described the respondent as being “very deliberate in her responses” with a slight delay between the question and the response, but said that this was “nothing abnormal”.
While talking to the respondent, Sgt Clark detected a slight smell of liquor and noticed that the respondent’s eyes were watering. Sgt Clark told the respondent that driving without lights was an offence and accordingly that he was requiring her to provide a sample of breath for analysis. He produced an alcotest instrument and instructed the respondent to take a long breath and to keep blowing until he told her to stop. The respondent complied and moved her head forward so as to facilitate blowing into the straw of the alcotest instrument. Sgt Clark described her compliance with the alcotest as being without hesitation and as comprising “a standard blow”.
The alcotest indicated that the respondent had a blood alcohol content of more than 0.05 grams of alcohol in 100 millilitres of blood. On seeing that reading, Sgt Clark told the respondent that she had to accompany him to the Netley Police Station for the purposes of undergoing breath analysis. He told the respondent to lock her car and to go with him in the police vehicle. The respondent thereupon gathered her possessions from the front seat of the Nissan, got out of the Nissan and walked to the passenger side of the police car, where she entered the front passenger seat. Sgt Clark described the manner of her movement from the Nissan to the police vehicle as being “nothing abnormal”.
Sgt Clark said that the distance from George Street at Parkside to the Netley Police Station was about 5km. During the course of the journey Sgt Clark did not initiate any conversation but he described the respondent as “beating herself up about driving without lights and being silly”. He was not asked to elaborate on this statement, but it appears to be a description of the respondent recriminating aloud with herself about her conduct. The evidence did not indicate whether the recrimination related to her possible involvement in offences, or to her having damaged her partner’s car, or to something else. Whatever the explanation, the fact that the respondent was recriminating seems to suggest that she was able to understand the potential consequences of her conduct, and to reflect on those consequences.
At the Netley Police Station, Sgt Clark directed the respondent to the breath analysis room. He said that there was “nothing unusual” about the manner in which the respondent moved from the police vehicle to the breath analysis room.
In the breath analysis room, Sgt Clark instructed the respondent to sit at a table and she complied. He went to the other side of the table to the controls for the Drager breath analysis instrument. After entering some of the personal details of the respondent into the Drager, Sgt Clark then used a pro forma instruction sheet to instruct the respondent in relation to the breath analysis. He said to the respondent:
I’m Sgt Clark and I’m qualified to analyse the sample test of breath. I believe that within the last two hours you were driving a motor vehicle as described in a circumstance as defined in the Road Traffic Act (Miscellaneous Regulations) 1999, namely, driving without [lights] and drive without due care. You are required to supply two samples of breath analysis in accordance with my directions. The lower of the two results will be your breath alcohol concentration. Do you understand that?
The respondent answered, “Yes”.
Sgt Clark commenced the first test at 1.27 am. He said to the respondent:
I now direct you to take a deep breath and exhale steadily through this mouthpiece into the breath analysing instrument with one continuous breath until I tell you to stop. Do you understand that?
Again, the respondent said, “Yes”. Sgt Clark then presented the mouthpiece to the respondent and said, “Please blow”. He observed the respondent blowing into the instrument for a short time and then saw the test shut down with an indication that an insufficient sample of breath had been provided. He thought that the respondent may have put her tongue on the end of the mouthpiece thereby stopping air going into the instrument.
Sgt Clark then explained to the respondent that she would have to do the test again. He reset the Drager for this purpose. When the instrument was ready, Sgt Clark repeated the direction previously quoted, requiring the respondent to take a deep breath and to exhale steadily into the mouthpiece in one continuous breath. At the completion of the direction, Sgt Clark asked, “Do you understand that?” to which the respondent replied, “I suffer from asthma and I only have one and a half lungs”. The respondent appeared to blow but again the instrument indicated that an insufficient sample of breath had been provided.
Sgt Clark then reset the instrument a second time. He said to the respondent:
It’s a criminal offence to refuse or fail to provide a breath sample without good cause. You could be fined and lose your licence for 12 months or more. Do you understand that?
The respondent replied, “Yes, yes”. Sgt Clark continued:
It’s a defence if you have some physical or medical condition that prevents you from providing a breath sample but only if you ask for a sample of your blood to be taken instead or can show that your condition also prevents the taking of blood. If you want a blood sample taken because of your condition you should ask for that and the police will help you to have the sample taken at Government expense. Do you understand that?
The respondent replied, “Yes”.
Sgt Clark then said to the respondent:
I now give you another opportunity to submit to breath analysis. I direct you to take a deep breath and exhale it continuously through this mouthpiece into the breath analysing instrument with one continuous breath until I tell you to stop. Do you understand that?
The respondent replied, “Yes, I have been doing that though”. Sgt Clark then said, “Please blow”, and the respondent complied but the instrument shut down, again indicating that the test had discontinued.
Sgt Clark described the respondent as becoming upset at being unable to complete the test. He then attempted a test for a fifth time (repeating the instructions previously quoted) and on this occasion (at 1.36 am) a sufficient sample was provided. It indicated that the respondent had a blood alcohol content of 0.091 grams in 210 litres of breath.
Sgt Clark then instructed the respondent to blow again with a view to obtaining the required second sample of breath. He repeated the instruction earlier quoted, but on each occasion the instrument indicated that insufficient breath had been supplied. Altogether, the respondent made eight attempts to provide a sample but provided a sufficient sample on only one occasion.
Sgt Clark allowed the respondent to make more than the usual number of attempts because he considered that she was trying to blow in accordance with his instructions. He noted that the respondent’s cheeks appeared to be full of air, she appeared to be blowing into the mouthpiece, and he could see condensation forming on the inner side of the mouthpiece apparently produced by the respondent’s breath. On each of the eight occasions upon which a test was attempted, Sgt Clark repeated the instruction earlier quoted and on each occasion the respondent indicated her understanding of what was required. On some of the occasions, while the appellant was blowing, Sgt Clark said repeatedly, “keep going, keep going”.
At the conclusion of the tests, Sgt Clark said to the respondent:
Tanya, you can elect to have a blood test if your lung or asthma is preventing you from doing this test. Do you want a blood test?
The respondent replied, “No, I hate needles”. Sgt Clark then handed to the respondent, who took from him, the printout of the results of the attempts at breath analysis. That occurred at 1.58 am.
Sgt Clark then said to the respondent:
Because you did not provide two samples of breath I have to report you for failing to comply with my directions unless you wish to have a blood test.
The respondent replied, “I can’t due to my anxiety and depression. I can’t face having a needle”. Sgt Clark said:
You understand that if you don’t – do not provide a blood sample it may affect a defence of medical or physical condition being your reason for non-compliance with my request.
To which the respondent replied: “Yes”.
Sgt Clark then had a further conversation with the respondent as follows:
Do you want a blood test kit?
No.
Do you want to read my notes?
No.
Do you want to sign at all?
No.
Sgt Clark then decided that an instant loss of licence should be imposed.[14] He completed the appropriate documentation and, at the same time, explained to the respondent that her licence was being suspended for a period of 12 months, that she could not drive, that she risked being arrested if she did drive, and pointed out the entries on the back of the document which he handed to her indicating her appeal rights. Sgt Clark included on the form the respondent’s 10 digit mobile phone number, indicating that she had given that number to him at some stage. It is likely that the respondent gave this number from memory, as Sgt Clark said that he had not seen a mobile phone. He then asked the respondent to sign the form at the bottom acknowledging her receipt of a copy of it, and the respondent complied. That occurred at 2.09 am.
[14] Road Traffic Act 1961 (SA) s 47IAA.
Sgt Clark then had the following further conversation with the respondent:
Q.    I am going to ask you some further questions in relation to tonight’s incident. You are not obliged to answer these questions unless you want to but anything you do say may be taken down in writing and given in evidence. Do you understand?
A.    Yes.
Q.    Where have you been drinking tonight?
A.    We went to the Avoca hotel. I had a glass of wine – went home – had a couple of Valiums to relax – remembered that I had to do a couple of things and drove. I probably shouldn’t have.
Q.    How many drinks did you have when you were out tonight?
A.    Really only one glass of wine as far as I know.
Q.    Did you take any medicine?
A.    Two Valium and two Lexepro for depression.
Q.    Why were you driving without lights?
A.    It was well lit and I did not realise they weren’t on.
Q.    Why were you driving with a flat tyre?
A.    I don’t know. I didn’t even know it was flat. It felt a little awkward to drive.
Q.    You have failed to supply two samples of breath. Is there any physical reason you didn’t or couldn’t comply?
A.    I really honestly did try and breathe as hard as I could.
Q.    You will be reported for breaching your probationary conditions, driving without due care, no lights and failing to comply with a reasonable request for a breath analysis. Do you understand?
A.    Oh, okay.
Q.    As we discussed your licence is immediately disqualified for 12 months. Do you understand?
A.    Yes.
Q.    You are now no longer allowed to drive. Do you understand that?
A.    Yes.
That conversation concluded at 2.25 a.m. The following exchange then occurred:
Q.    Having had the notes read to you, do you agree that they are true and accurate?
A.    They are exactly what happened.
Q.    Do you wish to sign them?
A.    Yes.
The respondent then signed the last page of Sgt Clark’s notebook and initialled the previous pages.
This conversation concluded at about 2.30 am. Sgt Clark then conveyed the respondent in his police vehicle to her home at Forestville. The respondent directed him appropriately into the one-way street and identified for him the house in which she lived. When the respondent alighted from the vehicle, Sgt Clark noted that she walked in a normal manner to the front door.
All in all, the respondent was in Sgt Clark’s company for about two hours. Sgt Clark described her as:
… just a normal, pleasant drink-driver if you like. The only thing that changed was, as I said before, she was apprehensive or upset that she wasn’t complying with the request.
The appellant submitted that this evidence, which was accepted by the Magistrate as reliable, indicated strongly that the respondent had been acting both consciously and voluntarily at relevant times. It showed that the respondent had reacted appropriately to Sgt Clark’s many requests and directions, including the implicit direction to stop her vehicle arising from his use of the police lights and siren. Over the course of nearly two hours, the respondent had responded in an appropriate and adaptive manner, including by giving Sgt Clark sensible directions as to the way to her home. She had answered questions promptly and in a manner which indicated her understanding of them. The respondent could recall events during the period in which she was said to be acting as an automaton, for example, that driving the Nissan with the flat tyre had felt awkward, and that Sgt Clark’s notes did record “exactly what happened”. In addition, the respondent had been able to provide explanations to Sgt Clark for her conduct, for example, that she had driven without lights because the roads were well lit and she had not realised that the headlights were not on, and an explanation as to why she could not blow properly. This indicated an awareness on her part of what was happening. The respondent also recalled events before the period of automatism was said to have started, for example, going to a hotel, drinking one glass of white wine, and taking two Valium and two Lexepro tablets. As noted earlier, the respondent’s apparent recrimination with herself indicated that she had the ability to reflect on the consequences of her conduct.
All of this, it was submitted, was inconsistent with the respondent having been “out to it” or having been “dissociated” or having been acting involuntarily.
In my opinion, these submissions are well made. Ordinarily, the question of whether a person was acting voluntarily at a relevant time is to be determined by an assessment of their actions, statements and condition at that time.[15] The observations of Sgt Clark, and the inferences arising from them, do suggest strongly that the respondent was acting both consciously and voluntarily. It is difficult to distinguish her behaviour and responses from those commonly seen from other intoxicated persons who are stopped by the police in similar circumstances.
[15] R v Haidley and Alford [1984] VR 229 at 234.
The Magistrate did say that he accepted without question the observations of Sgt Clark and his account of his conversations with the respondent. However, the Magistrate did not refer to the inferences to be drawn from those observations or conversations. After the Magistrate made the finding that the appellant had been functioning as an automaton, he did find that the fact that the respondent had been so functioning had not been apparent to Sgt Clark, and that her actions and conversations had appeared to him to be normal. However, subject to one matter, the Magistrate did not attempt to reconcile the respondent’s otherwise apparently conscious behaviour as observed and recorded by Sgt Clark, with the conclusion that she had, at the same time, been acting as an automaton.
The remaining matters upon which the Magistrate relied are consistent with the respondent having been intoxicated and having acted in a confused or befuddled state. To my mind, they do not of themselves suggest that the respondent was acting in a state of automatism.
Similarly, the statements made by the respondent to Sgt Clark identified in paragraph [25] above, which the Magistrate considered incapable of rational explanation, do not, to my mind, suggest a state of automatism. Again, those statements could be the product of a confused or befuddled mind or, as the respondent’s own counsel on appeal suggested in another context, the product of some confabulation.
For present purposes, I consider that there is considerable force in the appellant’s submission that the Magistrate failed adequately to consider the implications arising from Sgt Clark’s evidence and, in particular, failed to consider how those observations could be reconciled with the postulated state of automatism.
I turn now to the appellant’s critique of the evidence upon which the Magistrate did rely.
Dr Raeside’s Evidence
Dr Raeside gave oral evidence in the usual way. After he had completed his evidence and had left the witness box, the respondent’s counsel tendered, without objection, a written report from Dr Raeside dated 9 March 2009. This written report contained much of the material about which Dr Raeside had given oral evidence. The purposes for which the written report was tendered were not made clear.
Counsel for the respondent also tendered at the same time an affidavit of Sgt Clark affirmed on 13 November 2008, the Police Apprehension Report relating to the respondent’s conduct, and a copy of a report from a psychiatrist, Dr Chow, dated 4 September 2008. These were the documents which had been provided to Dr Raeside for the purposes of his opinion.
Dr Raeside’s evidence was on the following topics:
(1)the general nature of Stilnox, the purposes for which it is generally prescribed, and some of the effects reported by those who have used it;
(2)the nature of sleepwalking and “sleep driving”;
(3)the effect, in a general way, which consumption of Stilnox and alcohol may have on sleepwalking or in producing a state similar to sleepwalking;
(4)an assessment, on the basis of an interview which he had with the respondent together with documents provided to him by the respondent’s solicitors, of the effect of the respondent’s consumption of Stilnox on her ability to form an “intention” to drive and on her memory of the events of the night.
On the first topic, Dr Raeside described Stilnox as a non-addictive sleeping tablet of the short acting kind, ie, having effect for no more than four to five hours. He said that the drug reaches its maximum effect within 30‑60 minutes of consumption so that Stilnox consumed at about 10.30 pm would still be having an effect at about 1.00 am. Once a person falls asleep after consuming Stilnox, the person will be more difficult to arouse and, once aroused, will appear sleepy.

A common side effect of Stilnox is loss of memory, ie, those who use it may have no memory of what they did after taking the medication and before going to sleep, or of what occurred if they are roused from sleep. There are reported instances of those who have taken Stilnox engaging in bizarre behaviours and the literature contains reports of persons claiming to have engaged in sleepwalking or “sleep-driving” while under the influence of Stilnox.
On the second topic, Dr Raeside described sleepwalking as persons engaging in seemingly purposeful (but not highly sophisticated) behaviour while asleep, because of some dissociation between the mind and body. He said the medical literature contains reports of cases of persons engaged in more sophisticated activities while sleepwalking, including “sleep-driving” (which I understand to mean the driving of a vehicle). However, in the absence of the influence of drugs, the more complicated and sophisticated the conduct, the less likely it is that it can be attributed to a dissociative state such as exists with sleepwalking.
In his cross-examination, Dr Raeside said that the neurological explanation for sleepwalking was “slightly outside” the area of his expertise.
On the third topic, Dr Raeside’s evidence was not altogether clear. In his evidence-in-chief he said that Stilnox is thought to produce in some people a state which is similar to sleepwalking. Its effect is such that someone interacting with a person who has taken Stilnox may not appreciate that a person is under the influence of a drug, so that they can have what appears to be a normal conversation. However, in his cross-examination, Dr Raeside said that he was not suggesting that Stilnox will cause a sleepwalking or “sleep driving” state.
Dr Raeside said that the consumption of alcohol can exacerbate the effects of Stilnox and that a person who has taken Stilnox may not recall consuming alcohol while under the influence of Stilnox.
On the fourth topic, Dr Raeside said that he had concluded that there was a reasonable possibility that in the early hours of 28 April 2008 Stilnox would have deprived the respondent of the ability to form an intention to drive.
… I thought [that when] all those factors [were] taken into account it was reasonably possible, certainly not beyond reasonable doubt or to that level but it was reasonably possible that the Stilnox would have prevented her from forming the intent to drive and drive with blood alcohol above zero or to drive without lights or otherwise without due care.[16]
(Emphasis added)
Dr Raeside reached this conclusion on the basis of his consultation with the respondent on 4 March 2009 and on the basis of what he had read in an affidavit of Sgt Clark, the Police Apprehension Report, and a report from Dr Chow of 4 September 2008. He regarded the respondent’s “account of what happened” as consistent with the literature and with the reports made to him in both forensic and non-forensic contexts by those claiming that they had taken Stilnox. As will be seen shortly, Dr Raeside’s evidence did not identify the particular “factors” upon which he relied for his opinion.
[16] Tx 75.
The appellant made a number of criticisms of the Magistrate’s acceptance of the opinions of Dr Raeside.
Expert Evidence – General
It is appropriate to begin with some general propositions about expert evidence in circumstances such as the present. The first is that the witness from whom expert opinion evidence is proposed to be led must have an appropriate expertise. I will address the issue of Dr Raeside’s expertise shortly.
The second is that particular care is required when litigants wish to lead evidence from experts as to the likely or possible state of mind at a relevant time of a person who has taken drugs. The exercise of care requires that the proper role of the Court and of the witness be kept firmly in mind so that the experts do not intrude inappropriately into the role of the Court; that the basis upon which experts express their opinions be both properly identified and established in the evidence; and that the experts give some evidence of the underlying scientific or medical criteria used in establishing their opinions, sufficient to permit the Court to evaluate the validity of their conclusions.
King CJ, in R v Fowler,[17] addressed some of these issues in the following terms:
Opinion evidence as to the likely or possible mental state of the particular accused following ingestion of drugs and as to any conclusions to be drawn from his behaviour as to his mental state, presents more difficulty. I think that these matters are fit subjects for evidence of opinion by properly qualified experts, but it is important that such evidence be strictly confined to what is admissible and be not permitted to encroach upon the role of the Court. It must be kept steadily in mind that the Court (the jury in a jury trial) is the tribunal of fact and that it is no part of the function of a witness to decide what version or interpretation of the facts is to be accepted or rejected. The witness who expresses an opinion as to the likely or possible state of mind of the accused at a given time must give his opinion upon an assumed state of facts postulated to him or by him for that purpose. Strictly speaking, it is not permissible for him to recount what he has been told, as distinct from what he assumes as the basis of his opinion, as that would result in hearsay material coming to the notice of the Court. The strictness of this rule is often relaxed in civil proceedings where there is no jury, as the Judge is able to disregard the hearsay as non‑probative and discount the opinion if the assumption of the witness as to the correctness of the hearsay material is not substantiated by admissible evidence. But adherence to the rule is of the upmost importance when the evidence is given before a jury. The position is somewhat different where a medical witness who has examined a person is called to express an opinion as to his mental or physical condition. In such a situation the history given by the patient and the very fact that he gives such a history is as much part of the material upon which the opinion is formed as the physical examination and is invariably allowed to be given in evidence by the medical witness. But even in that case what the patient has told the medical witness is not evidence of the truth of what is related, except so far as it may be admissible against the patient as an admission or may be admissible as a contemporaneous statement as to his sensations, and the validity of the opinions expressed will be affected if what is related is not substantiated by evidence.[18]
(Emphasis added)
[17] (1985) 39 SASR 440.
[18] Ibid at 442.
The High Court discussed the need for the basis of an expert witness’ opinion to be proved by admissible evidence in Ramsay v Watson[19] in the following terms:
When a physician’s diagnosis or opinion concerning his patient’s health or illness is receivable, he is ordinarily allowed to state the “history” he got from the patient. … It matters not whether the person whose health is in question was a regular patient of the doctor, or whether the doctor saw him for the purpose of qualifying as a witness. This, of course, is quite a different matter from the rule last discussed. That, in cases where it applies, makes statements made to anyone concerning present symptoms and sensations admissible as evidence that those symptoms and sensations, in fact existed. This makes all statements made to an expert witness admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies; but, except they be admissible under the first rule, such statements are not evidence of the existence in fact of past sensations, experiences and symptoms of the patient. Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And, if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician’s opinion may have little or no value, for part of the basis of it has gone.[20]
The same point was made by the High Court in Gordon v The Queen[21]:
… [S]tatements made to an expert witness are admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies but … if such statements, being hearsay, are not confirmed in evidence, the expert testimony based on them is of little or no value.[22]
[19] (1961) 108 CLR 642.
[20] Ibid at 648-9.
[21] (1982) 41 ALR 64.
[22] Ibid.
In Makita (Australia) Pty Ltd v Sprowles,[23] Heydon JA discussed both the requirement for expert opinion to be based upon facts proven in the trial and for expert witnesses to identify the facts upon which their opinion is based. His Honour said:
The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are “sufficiently like” the matters established “to render the opinion of the expert of any value”, even though they may not correspond “with complete” precision, the opinion will be admissible and material … One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.[24]
(Emphasis added)
Similarly, in HG v The Queen[25] Gleeson CJ said:
An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question.[26]
To similar effect, King CJ in R v Fowler[27] said of contemplated expert evidence as to an accused’s mental condition at the time of the alleged offence:
…[I]t is of the utmost importance that the assumptions of fact upon which the opinion is arrived at be clearly stated and that the evidence be confined to opinions expressed upon those stated assumed facts.[28]
[23] [2001] NSWCA 305; (2001) 52 NSWLR 705.
[24] Ibid at [64]; 731-2.
[25] [1999] HCA 2; (1999) 197 CLR 414.
[26] Ibid at [39], 427. See also Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111 at 119.
[27] (1985) 39 SASR 440.
[28] Ibid at 443.
Expert witnesses should also explain in their evidence the theory or experience upon which their opinions are based. In Makita Heydon JA spoke of the “prime duty” of experts to furnish the trier of fact with criteria enabling the evaluation of the validity of the expert’s conclusions.[29] Similarly, in R v Jenkins; ex parte Morrison,[30] Fullagar J said that an expert witness must “explain the basis of theory or experience” upon which the conclusions stated are supposed to rest.[31] This is particularly important so that the expert witness does not come to usurp the functions of the Judge or jury.
[29] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (2001) 52 at [59]; 52 NSWLR 705 at 729.
[30] [1949] VLR 277 at 303.
[31] Quoted by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (2001) 52 at [60]; 52 NSWLR 705 at 730.
Dr Raeside’s evidence, and the Magistrate’s acceptance of it, have to be assessed with these principles in mind. They mean that for Dr Raeside’s opinion on the fourth topic to have any value, the facts upon which it was based had to be both identified and proved by admissible evidence.[32] Dr Raeside could not himself establish the truth of the history given to him by the respondent; that had to be established by other admissible evidence. It was also encumbent upon Dr Raeside to state explicitly the assumptions of fact upon which his opinion was based.[33] However, as explained by Heydon JA, the facts proved at trial did not have to correspond completely with the facts assumed by Dr Raeside.
[32] Ramsay v Watson (1961) 108 CLR 642 at 649; Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 846.
[33] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at [64]; (2001) 52 NSWLR 705 at 731.
Dr Raeside’s Expertise
Dr Raeside was retained by the respondent to prepare a report “about the possible effects of the medication Stilnox on [the respondent’s] alleged behaviour of driving without lights, drive without due care, fail to comply with blood alcohol test, and breach probationary licence conditions”.
The essential matters for the admission of evidence of opinions from an expert were those stated by King CJ in R v Bonython:[34]
Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of the body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.[35]
[34] (1984) 38 SASR 45.
[35] Ibid at 46-7. See also Clark v Ryan (1960) 103 CLR 486 at 491 (Dixon CJ).
In the present case, there was no suggestion that the respondent suffered from a mental illness which could explain her conduct.[36] In those circumstances, a court should, even without expert evidence, be able to form a sound judgment on the issue of whether the respondent, unaffected by drugs or alcohol, was acting consciously and voluntarily at the time of the alleged offences. Given the evidence that the respondent had consumed some Stilnox, it was appropriate for the Court to have some assistance from an appropriately qualified expert. That is because it seemed to be common ground that Stilnox is capable of causing unusual behaviour in some who use it. Furthermore, its effects can be exacerbated if taken in conjunction with alcohol.
[36] Dr Raeside did consider that the respondent may have been suffering from “a partially treated major depressive disorder” in April 2008, but did not think that that condition was “particularly relevant” to the issue of the respondent’s voluntariness.
Dr Raeside is a forensic psychiatrist who, for many years, has provided both in-patient and out-patient psychiatric treatment to prisoners and probationers. He is experienced in giving expert evidence in courts of this State on psychiatric and psychological issues. Dr Raeside is not a pharmacologist.
Dr Raeside said that he had a “general understanding” of Stilnox as a pharmacological agent, and that in the course of his professional practice he sees people who use Stilnox, including people involved in cases in which questions of their mental competency to have committed an offence has been raised. Presumably these are people who have reported or claimed to Dr Raeside a use of Stilnox. He said that he had not himself used Stilnox, nor prescribed Stilnox to any patient (but had prescribed analogue drugs), and he doubted that he had ever seen anyone at a time when that person was under the influence of Stilnox.
Dr Raeside admitted that he had not conducted any research relating to Stilnox and its effects, but said that he was familiar with some of the literature in the forensic area concerning the adverse effects of Stilnox on memory and behaviour.
He said that an explanation of the manner in which Stilnox could result in episodes of “sleep driving” required an exercise of pharmacological expertise and he accepted that the pharmacological and physiological effects of Stilnox were outside his area of specific expertise. He claimed, however, expertise with respect to the “behavioural effects” of Stilnox.
As noted earlier, the qualifications, experience and expertise of Dr Raeside were not challenged at first instance. On the appeal, the appellant drew attention to Dr Raeside’s lack of pharmacological expertise and his statement that his knowledge of Stilnox was “a general understanding”. The appellant accepted, however, that Dr Raeside’s expertise had not been challenged at trial and therefore that any deficiencies in his expertise went to the weight, rather than the admissibility, of his evidence.
In the assessment of Dr Raeside’s expertise, it is necessary to keep in mind the distinction between expert evidence of fact, on the one hand, and expert evidence of opinion, on the other. The distinction was stated by von Doussa J, writing extra-judicially, as follows:
An important distinction is well recognised in Australia between, on the one hand, evidence of facts which may be given by an expert because his particular study or experience enables him to identify facts, perhaps with the aid of sophisticated equipment or techniques, which are obscure or invisible to a lay witness; and on the other hand, of an opinion, that is, of an inference which is based on other facts.[37]
[37] “Difficulties of Assessing Expert Evidence” (1987) 61 ALJ 615.
Barwick CJ referred to the distinction in Weal v Bottom[38] in relation to evidence concerning the behaviour of an articulated truck:
The fact to be proved was the possibility of the rear end of the tank trailer being over the mid-line of the road at the critical time. The possibility involved the behaviour of an articulated vehicle in the particular circumstances which I have detailed. That possibility would need to be made out, not by evidence of what the particular vehicle was observed to do this day but by evidence of what such a vehicle, because of its nature, was capable of doing in the given circumstances. Such evidence could be given by an expert, properly so called, that is to say, by a person who by studying and instruction in some relevant scientific or specialised field was able to express an opinion, founded on scientific or specialised knowledge thus acquired, as to the likely behaviour of such a vehicle so placed. But it could also be established by the evidence of a person who had had actual experience of or had observed such behaviour. Such a person could speak of the capability of the vehicle in the described circumstances as a fact within his experience or observation. In truth, the evidence of such a person is not the expression of an opinion nor is he strictly within the category of an expert, but there is a tendency to refer to such evidence compendiously as expert evidence.[39]
[38] (1966) 40 ALJR 436.
[39] Ibid at 438.
As von Doussa J has observed, the distinction between expert evidence of fact and of opinion is not always easy to draw.[40] It can, however, be essential to keep the distinction in mind because the qualifications or experience of some experts may entitle them to give expert evidence of one kind only.
[40] “Difficulties of Assessing Expert Evidence” (1987) 61 ALJ 615 at 616.
Dr Raeside’s evidence concerning the first two topics earlier identified, and possibly a portion of the third, appear to be in the nature of expert evidence of fact, whereas some of the evidence on the third topic, and the whole of the evidence on the fourth, appear to involve opinions requiring the drawing of inferences from other facts. When the Magistrate accepted Dr Raeside’s expertise, he did not distinguish between the two different kinds of evidence which Dr Raeside had given.

Dr Raeside’s medical qualifications and, in particular, his psychiatric qualifications and experience, meant, in my opinion, that he had the expertise to give some opinion evidence of a general kind on topics 1 and 2. I have referred to evidence of “a general kind”. It is reasonable to suppose that the effect of Stilnox, like several drugs, may vary according to the dosage taken. Dr Raeside did not claim any experience in relation to the effects of different dosages, and his lack of pharmacological expertise probably precluded him from giving specific evidence on this topic. It also seems reasonable to suppose that an opinion about the “behavioural effects” of Stilnox cannot be disengaged from a pharmacological understanding of the drug, especially if it is used in conjunction with some other drug, such as alcohol.
I accept also that by reason of his study of the literature, Dr Raeside could inform the Court of what the literature revealed concerning the effect of Stilnox and alcohol in producing a dissociated state. However, apart from the fact that Dr Raeside had seen some persons in a forensic context who have reported or claimed a use of Stilnox at the time of their alleged offences, Dr Raeside’s expertise did not seem to go beyond identifying in a general way the effects which may result from consumption of Stilnox with or without an associated consumption of alcohol.
I doubt very much whether Dr Raeside’s expertise was such as to permit him to give evidence on the fourth topic, namely, the respondent’s ability to form an intention to drive and on the question of whether the conduct which was the subject of the offending was voluntary. He appeared to be doing little more than comparing the respondent’s account to him of relevant events (which was limited because the respondent claimed no memory from about 10.30 pm on 27 April until about 7.00 am on the following morning) together with what was contained in Sgt Clark’s affidavit and in the Police Apprehension Report, with the circumstances reported in the literature, and reported to him by others whom he has seen in a forensic context. On his own admission, Dr Raeside did not have the pharmacological expertise which it would seem was necessary to permit him to express an opinion on the fourth topic.
However, it is unnecessary to express a concluded view about this because I consider that, for other reasons, Dr Raeside’s opinions on the fourth topic should not have been relied upon by the Magistrate.
The Basis for Dr Raeside’s Opinions
At the trial, counsel for the respondent (not the same counsel who appeared on the appeal) did not adopt the technique of asking Dr Raeside to assume certain facts, based on evidence already given in the trial, for the purposes of expressing an opinion. Instead, he adopted the technique of asking Dr Raeside to recount the history which he had obtained from the respondent. This can be an acceptable technique, but it is a technique which involves the risk that the history given to, and relied upon by, the expert may not match sufficiently the evidence given to the Court. It also involves the risk of the expert giving evidence of a hearsay nature concerning matters which are not otherwise proved in the evidence.
In the present case, the technique had the effect that Dr Raeside’s opinion was based upon a much less complete account of the respondent’s conduct in relation to the alleged offences than that described in his evidence by Sgt Clark, and accepted by the Magistrate. This was because Dr Raeside relied, not on the evidence, but on the contents of Sgt Clark’s affidavit and the Police Apprehension Report. With one exception, each gave only a very truncated account of the respondent’s conduct and behaviour, and of her interaction with Sgt Clark. The qualification is that Sgt Clark’s affidavit did recount the content of his conversations with the respondent at the Netley Police Station after the conclusion of her attempts to provide a sample for breath analysis.
The oral evidence of Sgt Clark was much more detailed than the account contained in the affidavit and the Police Apprehension Report. As noted earlier, his evidence suggested that for a period of just on two hours the respondent engaged in purposeful behaviour, interacted in an appropriate fashion with Sgt Clark, responded appropriately to his directions (both express and implied) and to his questions, reflected on her own behaviour, recalled elements of that behaviour, and herself from time to time gave appropriate directions, for example, by identifying for Sgt Clark the location of her house in her street. This evidence was detailed and gave considerable insight into the appellant’s apparent state of mind at relevant times. Dr Raeside’s opinion was prepared and given without regard to this detailed evidence.
In these circumstances, I consider that there was no substantial correspondence between the facts apparently assumed by Dr Raeside, on the one hand, and the facts proved by the evidence at trial, on the other. By itself this rendered the opinion of Dr Raeside of little, if any utility.
There are other considerations which suggest shortcomings in Dr Raeside’s evidence about the conduct of the respondent in relation to the alleged offences. Dr Raeside’s evidence never identified the particular factual assumptions he made about the respondent’s conduct and behaviour in the early hours of 28 April 2008. His evidence-in-chief identified that he had been given a copy of Sgt Clark’s affidavit, but made only one passing reference to its contents. It is impossible to know therefore what assumptions of fact he derived from that affidavit about the respondent’s conduct. The cross-examiner did refer Dr Raeside to Sgt Clark’s affidavit, but not in such a way that it can be said that the deficiencies in the evidence-in-chief were overcome.
In relation to the Police Apprehension Report, Dr Raeside was asked:
Is there anything in the Police Apprehension Report which you considered relevant to this matter?
This was an inappropriate question. At the time it was asked, the Police Apprehension Report had not been tendered. There was little point in asking Dr Raeside to comment on a document which was not before the Court and the question distracted attention from the evidence which was in fact before the Court. However, the question led to a long answer from Dr Raeside in which he gave some commentary on features of the Report and speculated about the possible meaning or significance of other aspects. Much of the answer was not strictly speaking admissible. Of significance however is that Dr Raeside was not asked to identify any particular assumptions which he had made based upon the content of the Report, and the answer which he gave did not have that effect.
In many respects, the history which the respondent gave at the time of her consultation with Dr Raeside was similar to the account which she gave in her evidence. However, Dr Raeside obtained a further history of the respondent having had previous unusual experiences after taking Stilnox. She gave three examples of this to Dr Raeside, all of which were, in their essential details, hearsay in nature. This was because the respondent herself had no memory of the events and was instead relaying to Dr Raeside what she had been told about them by her partner. As the partner did not give evidence at the trial, the Court had no admissible evidence about them. If Dr Raeside had not relied upon this history for his opinions, the absence of admissible evidence about them would not matter. Although the omission of Dr Raeside to identify his assumptions means that one cannot be certain, it does appear that the respondent’s account of other experiences was something upon which Dr Raeside did rely.
Other illustrations of the failure to identify the assumptions of fact made by Dr Raeside, and to prove those assumptions by admissible evidence, can be given. Dr Raeside reported the respondent telling him at one stage that she had taken one Stilnox tablet at about 10.15 pm, but later telling him that it may have been one and a half tablets. It is not clear what assumption of fact Dr Raeside made about this.
Dr Raeside noted that the respondent’s history of consuming one or one and a half glasses of wine at the hotel was inconsistent with a blood alcohol reading of 0.091 grams in a 100 millilitres of blood at about 1.30 am. It is unclear what assumption Dr Raeside made as to the respondent’s blood alcohol content, as to whether the respondent had consumed more alcohol than she had mentioned to him, or as to the time and circumstances in which she may have consumed further alcohol.
It is not clear what assumption of fact Dr Raeside made about the dosage of Stilnox taken by the respondent. He did not refer to this in his evidence-in-chief at all. In response to a question as to whether Stilnox was prescribed in different sized doses, Dr Raeside said:
In my experience it’s only in 10[mg] tablets. I personally don’t prescribe it so I’m not familiar if its been changed as far as different doses available … I’m not sure if 5[mg] is available … .
Given Dr Raeside’s evidence that he had not himself prescribed, or consumed Stilnox, it is not clear what was the “experience” to which he referred in this answer. However, the answer may suggest that Dr Raeside had assumed the consumption of a 10mg tablet (or possibly one and a half 10mg tablets). Unless it be the case that any amount of Stilnox could cause behaviour of the kind assumed by Dr Raeside, it was important both that Dr Raeside’s assumption as to the dosage taken by the respondent be identified, and that the actual dosage in the tablet or tablets taken by the respondent be proved. The respondent led no evidence on this topic at all.
In my opinion, the numerous respects in which the basis for Dr Raeside’s opinion was not proved, the absence of identification in Dr Raeside’s evidence of all of the factual assumptions which he had made, and the incompleteness of the factual material upon which he did rely meant that, quite apart from the limitations on his expertise, his evidence was of limited utility.
Absence of Statement of the Scientific Criteria
Dr Raeside’s evidence also suffered from an absence of any identification of the scientific or medical criteria upon which it was based. Perhaps this was inevitable given that Dr Raeside does not have pharmacological expertise.
However, even in relation to the “behavioural effects” of Stilnox, Dr Raeside’s evidence did not identify for the Court the dosages taken by those who have reported strange effects after taking Stilnox, so that some comparison could be made with the respondent’s case. Nor did Dr Raeside’s evidence refer to any other possible “variables” which could have permitted an evaluation of his evidence concerning the respondent’s behaviour, eg, age, sex or build.
The general effect of Dr Raeside’s evidence was not markedly different from that which many members of the public who have observed persons affected by alcohol can give about whether a particular person appeared to be so affected. Evidence of this kind can sometimes be admissible but Dr Raeside’s evidence to this effect did not acquire any additional status because of his expertise in the field of forensic psychiatry. In HG v The Queen[41] Gleeson CJ spoke of one of the dangers of expert witnesses venturing outside the area of their expertise:
[I]n trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture “opinions” (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted.[42]
[41] [1999] HCA 2; (1999) 197 CLR 414.
[42] Ibid at [44], 429.
It can be seen that in the passage quoted at [74] above, Dr Raeside expressed himself in terms suggesting that he was himself applying the criminal standard of proof. The application of that standard was for the Court, and not Dr Raeside. By expressing his opinion in terms of a “reasonable possibility” and “not beyond reasonable doubt”, Dr Raeside did not enable the Court to evaluate his opinion, and to apply that opinion in its own consideration of the applicable onus and standard of proof.
Other Shortcomings
Two further illustrations of difficulties in Dr Raeside’s evidence may be given. First, Dr Raeside said in his evidence:
[M]y evidence isn’t that Stilnox will cause a sleepwalking or sleep-driving state. Rather the common element is that Stilnox will induce amnesia or memory impairment so that someone may have no recollection for what they did but therefore they may also not actually form the intention to do something.
(Emphasis added)
Dr Raeside was not asked to (and did not) explain how an absence of intention could be inferred as a matter of necessity from an absence of memory. Such a conclusion seems counter-intuitive. Common experience suggests that persons sometimes do not recall their own intended actions. For example, the person who arrives at an intended destination but who, by reason of preoccupation with other thoughts, does not remember the journey, and the person who does not remember actions carried out while under the influence of alcohol. Perry J made this point in Police v Hellyer[43] when he said:
A person may suffer retrograde amnesia through consumption of alcohol or drugs or both, with the result that they have no memory of what they might have been doing at the time of the commission of the offence. But the fact that the respondent suffered retrograde amnesia to that extent does not throw much light on the question whether or not the respondent formed the specific intent to commit the crime at the time of its commission. A reasonable doubt as to the existence of the specific intent necessary for a crime of this nature is not raised simply by evidence offering a plausible explanation for memory loss.[44]
[43] [2002] SASC 61; (2002) 218 LSJS 223.
[44] Ibid at [84], 236.
The second illustration is seen in Dr Raeside’s opinion, expressed in cross‑examination, that the respondent had some “degree of awareness” while driving, and when being questioned by Sgt Clark at the Netley Police Station. Dr Raeside was not asked to, and did not, explain how the existence of some degree of awareness was consistent with an automatonic state.
The Distinction Between Volition and Intention
There is a further reason why the Magistrate should have treated Dr Raeside’s evidence with caution. Dr Raeside appears to have understood the issue before the Court, and the issue for his opinion, as being one of whether the respondent could have formed an intention to drive without due care, or with the prescribed concentration of alcohol, or without the headlights illuminated, or not to comply with directions concerning breath analysis. This was a misunderstanding on Dr Raeside’s part.
The misunderstanding is evident in Dr Raeside’s written report. He said (at page 10):
[F]or current legal purposes the real question is whether she was able to form the intent to drive without due care and with prescribed concentration of alcohol.
(Emphasis added)
Later, on the same page of his report, Dr Raeside opined:
… I think there is a reasonable possibility that [the respondent] was unable to form the requisite intent to commit the alleged offences on that night and as such I would support an intoxication defence, with the intoxication being primarily due to Stilnox rather that to alcohol. As such she was probably functioning as an automaton because of the effects of that drug, exacerbated by alcohol, upon her. I believe her alleged behaviour was likely to have been involuntary because of the effects of Stilnox.
(Emphasis added)
It can be seen that in this passage, Dr Raeside seems to have reasoned that an inability to form the requisite intent to commit the offences meant that the respondent was functioning involuntarily.
In his oral evidence, Dr Raeside referred, on several occasions, to the respondent’s capacity to form an intention to drive without due care, without her headlights illuminated and while there was alcohol in her blood. I quoted one such passage earlier in these reasons at [74].
The law draws a distinction between voluntariness of conduct, on the one hand, and an intention to do an act, on the other. Mason CJ, Brennan and McHugh JJ discussed this distinction in R v Falconer:[45]
Mrs Falconer is criminally responsible for discharging the gun only if that act were “willed”, that is, if she discharged the gun “[of her] own free will and by decision” … or by “the making of a choice to do” so … 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. In Mamote‑Kulang and Timbu Kolian, Windeyer J added “some element of intention” to the notion of will but, with great respect, such an addition might cause confusion between will and intent in the Code in much the same way as voluntariness is liable to be confused with general intent in the context of the common law … Barwick CJ was alive to the distinction between will and intent in Ryan. He noted that intent usually relates to consequences, whereas will relates to the act done (the deed, as his Honour calls it) the doing of which is ordinarily presumed to have been willed. In Ryan, immediately following passages earlier cited from his Honour’s judgment, he said:
The presumption to which their Lordships refer in Bratty v Attorney-General (Northern Ireland) operates sub silentio. Mostly the contest will concentrate upon the question of the intent with which the accused acted. Consequently, there has not been any frequent need to express with technically expressed precision the difference between that element of mens rea which relates the will to act to the deed in question and that element which relates to it the general intent with which that will was exercised. Often, when absence of the requisite intent as distinct from the will to act is sought to be stressed, there is said to be an “accident”, or that the physical act which the evidence relates to the accused was “accidental”. But, as I have pointed out, such language is ambiguous for it may equally cover an unwilled act and is often so used. … In that case, the description “unintentional” appears to be used to cover an act which was involuntary or unwilled, descriptions of it which, for my part I would prefer. However, by whatever adjective or adjectival phrase it is described, the deed which was not the result of an accused’s will to act cannot, in my opinion, be made the source of criminal responsibility in him.
The language of the Code corresponds with the descriptions of the incriminated act which the Chief Justice preferred: s 23 distinguishes between a will to act and an intention to cause a result. The requirement of the will to act substantially, if not precisely, corresponds with the common law requirement that an offender’s act be done with volition, or voluntarily … The requirement of a willed act imports no intention or desire to effect a result by the doing of the act, but merely a choice, consciously made, to do an act of the kind done.[46]
See also the discussion on this topic by King CJ in R v Tucker[47] and by Barwick CJ in R v O’Connor. [48]
[45] (1990) 171 CLR 30.
[46] Ibid at 39-40.
[47] (1984) 36 SASR 135 at 138-9.
[48] (1980) 146 CLR 64 at 71.
The Magistrate’s reasons indicate that he focussed, appropriately, on the issue of the voluntariness of the respondent’s conduct in driving, and not upon her intention to drive in any of the proscribed ways. However, the Magistrate did quote in his reasons a number of passages from Dr Raeside’s report. These included the passages quoted above. The Magistrate did so without noting that Dr Raeside’s primary focus appears to have been on the issue of intention.

In my opinion, this is another reason why Dr Raeside’s evidence was of limited utility in this action.
Conclusion on Dr Raeside’s Evidence
In summary, I consider that the Magistrate erred by relying in any significant way on Dr Raeside ‘s evidence. The possible effect of consumption of Stilnox on the respondent’s state of mind at relevant times appears to be a matter on which Dr Raeside has only limited expertise. Further, as a result of the way in which Dr Raeside’s evidence was led, he did not identify in his evidence all of the factual assumptions for his opinions. In addition, Dr Raeside’s opinion was based upon an incomplete account of the respondent’s conduct in relation to the alleged offences. At least some of the facts which he assumed were not established by admissible evidence in the trial. Because of his lack of pharmacological expertise it was not possible for Dr Raeside to spell out the scientific criteria for his opinion so as to allow it to be evaluated. Finally, Dr Raeside appears to have assumed that the issue to be addressed was one of intention, rather than the voluntariness of the respondent’s conduct.
Accordingly, I consider that the Magistrate should not have relied upon Dr Raeside’s opinion on the fourth topic. His evidence on the other topics, although of some utility, should have been regarded as being of limited weight.
Submissions Concerning the Magistrate’s Reasoning
The appellant made other criticisms of the Magistrate’s reasoning to the conclusion that the respondent had been behaving as an automaton.
The Magistrate found that the respondent had left her home sometime after 10.30 pm dressed in her bed clothes, something which he regarded as completely out of character for her. Accordingly, he considered this to be one indication that she had been acting as an automaton.
The respondent gave evidence that before going to bed at about 10.30 pm on 27 April, she had changed into her bed clothes, they being some “tracky pants” and a “long-sleeved light shirt”. However, there was no evidence that the respondent was wearing those clothes between 1.00 am and 3.00 am on 28 April. Apart from saying that the respondent was dressed “tidily”, Sgt Clark said that he could not recall what the respondent was wearing. He did, however, say that if there had been something unusual about the respondent’s clothing, he would have noted it. He was not asked about the respondent’s footwear. Sgt Clark was the only person who had seen the respondent at relevant times who gave evidence.
In addition to there being no evidence that the respondent was wearing her bed clothes when out driving at 1.00 am, there was no evidence that the respondent was wearing bed clothes when she was woken at about 7.00 am on the following morning.
There was therefore no basis for this factual finding of the Magistrate.
The Magistrate also found that the respondent had consumed the contents of a number of sample liqueur bottles at some time after she had gone to bed on 27 April. The evidence about this was slight. The respondent’s evidence was that on the afternoon of 27 April, she had been given a number of sample liqueur bottles which she had put in her handbag. They had still been in her handbag when she went to the hotel for the evening meal and when she returned home. The respondent said that she did not drink any of those liqueur bottles before going to bed.
Shortly after waking at 7.00 am, the respondent said that she saw that four or five of the bottles had been consumed. She had no recollection of consuming them herself and believed, until shortly before the trial, that it was her partner who had consumed them. As the partner was not called to give evidence, there was no direct evidence about this. The respondent gave the following evidence on this topic:
Q.It’s your understanding that [your partner] didn’t drink them?
A.Yes, no, he did not drink them.
This question was inappropriate. It was leading in nature and, on the respondent’s evidence, involved inevitably a hearsay answer. If the respondent had no memory, she could not give evidence as to who had consumed the bottles and, accordingly, could not say that it was not her partner. Her understanding of the position as at the date of trial was not a relevant matter in the trial.
Conclusion on Involuntariness
In my opinion, the appellant has made good its submissions concerning the Magistrate’s decision and reasons concerning the respondent’s state of automatism. The Magistrate should not have accepted Dr Raeside’s opinion evidence on the topic of the respondent’s automatism. The other evidence suggested strongly that the respondent was not an automaton at relevant times. I will address the consequences of this conclusion later.
The Finding of No Case to Answer
As noted earlier,[49] at the conclusion of the prosecution case the Magistrate found that the respondent had no case to answer on the charge of breaching a condition of her provisional driver’s licence by driving with the prescribed concentration of alcohol (namely, any concentration of alcohol) in her blood. He did so because he considered that the prosecution had not established that the Drager 7110 instrument used by Sgt Clark for the breath analysis was an approved breath analysis instrument for the purposes of s 47E of the RTA. This had the effect, so the Magistrate found, that the analysis of the one complete sample of breath provided by the respondent could not be used as evidence of her blood alcohol content.
[49] See [10].
The Magistrate also considered that Sgt Clark’s observations of the respondent’s appearance (watery eyes, sleepiness and deliberateness in her speech), and the odour of alcohol which he detected, were not evidence of the presence of alcohol in the respondent’s blood, because they were just as consistent with the respondent having gargled, without swallowing, some liquid containing alcohol. Accordingly, he considered that this evidence was insufficient to establish a case to answer that the respondent had some concentration of alcohol in her blood.
The appellant submitted that this conclusion was wrong.
The test to be applied in relation to a submission of no case to answer is well known. On the assumption that all the evidence of primary facts in support of the prosecution case is accurate and, on the further assumption that all inferences most favourable to the prosecution which are reasonably open are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?[50]
[50] R v Bilick (1984) 36 SASR 321 at 337.
Use of the Single Breath Analysis Result
The Magistrate reached his conclusion that some evidence was required to the effect that the Drager 7110 instrument was an approved breath analysis instrument by the following steps. The respondent was charged with the contravention of s 81A(5) of the MVA, and not an offence under the RTA. There are no evidentiary provisions in relation to a s 81A(5) offence of the kind which exist in relation to an offence under s 47B of the RTA. However, on the assumption that s 47EB of the RTA could be applied, a breath analysis reading only had the evidential effect given by that section if the “breath analysis instrument” was an instrument approved for that purpose by the Governor.[51] As there was no evidence that the Drager used by Sgt Clark had been approved by the Governor, the prosecution could not rely on the presumption established by s 47EB, and could not therefore rely on the results of the single analysis made by the Drager.
[51] RTA, s 47A(1).
The Magistrate was incorrect in thinking that a number of the aids to prosecution contained in the RTA are not also applicable to a prosecution for a contravention of s 81A(5). Section 81A(6) makes a number of the evidentiary aids in the RTA applicable to such prosecutions. They are ss 47C, 47D, 47E, 47EAA, 47GA, 47GB and 47K and Schedule 1 of the RTA.
Of these provisions, it is s 47K[52] which is most pertinent presently. It allows evidence to be given of the concentration of alcohol indicated by an approved breath analysis instrument operated by an authorised person. Proof that the instrument in question was an authorised instrument and that Sgt Clark was an authorised operator was therefore required. Further, if the prosecution wished to rely on the presumption that the concentration of alcohol indicated by the instrument had been present in the respondent’s blood throughout the period of two hours immediately prior to the analysis, it had also to establish that “the requirements and procedures in relation to breath analysing instruments and breath analysis under [the RTA]” had been complied with. Section 47K(3) provides evidential aids towards proof of those matters.
[52] Section 47K(1) provides:
In the present case, the prosecution did tender a certificate establishing that Sgt Clark was an approved operator of breath analysis instruments (Exhib P1). It did not, by the close of its case, tender any certificate under s 47K(3) to establish that the Drager was an authorised breath analysis instrument for the purposes of the RTA. However, this was not fatal. Exhibit P11, which the prosecution tendered by consent at the close of the defence case, was an extract from the Government Gazette published on 23 May 2002 indicating that the Governor had, under s 47H(1)(a) of the RTA, approved the Drager alcotest 7110 Mk V as a breath analysing instrument. The Magistrate’s attention was not drawn to this gazettal at the time he was considering the submission of no case to answer. However, s 35(1) of the Evidence Act 1929 (SA) provides that “a court must take judicial notice of a legislative instrument”.[53] The Governor’s approval published in the Gazette on 23 May 2002 was the publication of a notice of the kind to which s 35(1) refers. Accordingly, the Magistrate should have taken judicial notice of the fact that the Drager used by Sgt Clark when testing the respondent was an approved breath analysing instrument[54] and the Magistrate was in error in concluding that s 47EB of the RTA could not be applied in the present case.
[53] Section 35(2) defines the expression “legislative instrument” to include a proclamation, order or notice published in the Gazette (sub-paragraph (d)).
[54] Strictly speaking the evidence before the Magistrate established only that the breath analysing instrument used Sgt Clark was the Drager Alcotest 7110 model and not the Drager Alcotest 7110 Mk 5 to which the gazettal refers. As I understand it, this is not a material difference.
However, there remains an issue as to whether the analysis from the one complete sample given by the respondent could be taken to have indicated her blood alcohol content throughout the period of two hours immediately preceding the analysis (and therefore at the time the respondent was seen driving). That issue arises from reg 8A of the Road Traffic (Miscellaneous) Regulations 1999 which contains the “requirements and procedures” for breath analysis under s 47E(2e) of the RTA. Amongst other things reg 8A requires the subject to provide two separate samples of breath for analysis. Regulation 8A(2)(d) provides that if, for any reason, a second sample of breath is not provided within 10 minutes of the provision of the first sample, the first sample “is to be disregarded”. That is the circumstance which pertained in the present case. It is not necessary for present purposes to determine the precise meaning of the words “is to be disregarded” as, at the least, those words indicate that the result of a single sample of breath cannot be relied upon in a prosecution for an offence of exceeding a prescribed concentration of alcohol.
The consequence is that, albeit for different reasons, I consider that the Magistrate was correct to regard the respondent’s single breath analysis reading as being of no assistance to the prosecution on the submission of no case to answer.
Sgt Clark’s Observations
There remains the evidence of Sgt Clark’s observations. This evidence included the manner of the respondent’s driving, her appearance while driving, her appearance when Sgt Clark stopped her and administered the alcotest, and the odour of alcohol detected by Sgt Clark. These observations in combination suggested that the respondent was affected by alcohol. It is to be remembered that at the close of the prosecution case, the Court had not received any evidence that the respondent’s behaviour may be explained by her consumption of some other drug. (I am not overlooking Sgt Clark’s evidence that the respondent had told him that she had consumed Valium and Lexepro, but there was nothing to indicate that those drugs could explain the respondent’s behaviour and appearance).
In my opinion, that evidence by itself was sufficient to establish a case to answer. That did not mean that if there was no further evidence the respondent would necessarily be convicted. But if all the observations made by Sgt Clark were presumed to be accurate, and all the inferences were drawn in the prosecution favour, the charge could be made out.
In addition, there was the evidence of the respondent’s positive result to the alcotest.
There was only limited evidence at trial as to the way in which the alcotest instrument operated, and how it indicated the result of the respondent’s test. Sgt Clark described the alcotest instrument as indicating a reading of more than 0.05. This evidence was given without objection. Presumably the reading was a measure of the alcohol in the respondent’s breath but such a reading is commonly regarded as providing some indication of the presence of alcohol in the subject’s blood.
On appeal, counsel for the respondent submitted that the evidence of the positive alcotest could not be relied upon to establish a case to answer on Count 4. Counsel submitted that Sgt Clark’s evidence on that topic was of a hearsay nature, similar to that considered in Myers v The Director of Public Prosecution.[55]
[55] [1965] AC 1001.
In my opinion, if this submission had been made to the Magistrate as part of the submission of no case to answer, it would not have been upheld. There was simply insufficient information about the content of the alcotest reading, and the manner in which it was displayed for the Magistrate (on the submission of no case to answer) to have ruled adversely to the prosecution. The position may have been different if objection had been taken to Sgt Clark’s evidence about the alcotest.
If the result produced by the alcotest had been recorded in some way, Sgt Clark’s evidence may have been of the secondary kind discussed in Semple v Noble[56] or possibly of a hearsay nature. But on a submission of no case to answer in which all facts and inferences are to be assumed in favour of the prosecution, the present submission made by the respondent could not have been sustained. This means, in my opinion, that the Magistrate had, in addition to the observations made by Sgt Clark, evidence of a positive result to an alcotest. These matters in combination indicated a case to answer on Count 4, and the Magistrate was wrong to have reached the opposite conclusion.
[56] (1988) 49 SASR 356
Accordingly, I uphold the appeal in relation to the dismissal of Count 4.
Submissions Concerning Count 3
The Magistrate dismissed the charge that the respondent had failed to comply with the reasonable directions of Sgt Clark with respect to breath analysis, in contravention of s 47E(3) of the RTA. He did so for two alternative reasons.
The first was that the prosecution had not established that the Drager’s indication that the respondent had not provided complete samples of breath was a consequence of the respondent’s conduct, and not a result of some fault or malfunction in the Drager itself. In my opinion, this conclusion was correct and the appellant’s complaints about the Magistrate’s dismissal of Count 3 should be rejected.
When the prosecution case depends upon evidence derived from the operation of an instrument or device, the prosecution must usually (absent any statutory provision to the contrary) establish that the instrument or device was, at the relevant time, in good operating order and condition and that it was operated correctly. King CJ referred to this requirement in Evans v Benson[57] in relation to breath analysis instruments:
A breath analysis instrument can only indicate a blood alcohol concentration if it is in proper order and is properly operated. If an instrument is not in proper order or is not properly operated, it cannot be said to indicate any concentration of alcohol. For that reason it is necessary for the prosecution to prove that the instrument was in proper order and properly operated.[58]
Similarly, in Police v Henwood,[59] Doyle CJ said:
That these matters (proper order and proper operation) can be proved by certificate cannot be allowed to obscure the fact that, in one way or another, it is necessary for the prosecution to prove that the breath analysing instrument was in proper order and was properly operated, before it can prove that a concentration of alcohol was indicated as being present by the breath analysing instrument.[60]
[57] (1986) 46 SASR 317.
[58] Ibid at 323.
[59] [2005] SASC 209; (2005) 92 SASR 15.
[60] Ibid at [60].
In the present case, the prosecution’s own evidence indicated that the respondent appeared to be making a genuine attempt to comply with Sgt Clark’s instructions. For that reason alone, the prosecution had to exclude the possibility that the Drager was indicating that the respondent was providing incomplete samples as a result of some malfunction or defect. The prosecution could have tendered a certificate under s 47K(3)(b) to establish this evidentiary requirement, but it did not do so.
Accordingly, the Magistrate was correct for this reason to find that the charge was not made out.
The Magistrate considered in the alternative that by reason of involuntariness, the respondent was not a “driver” of a vehicle and therefore could not have been required to submit to breath analysis.
In my respectful opinion, this alternative line of reasoning was in error. The involuntariness of the respondent’s conduct, if that was the case, did not mean that she was not the driver of the Nissan. Plainly she was the driver. The involuntariness, if it existed, meant that only that the respondent could not be held criminally responsible for her conduct while driving.
Further, s 47E of the RTA states the circumstances in which a person may be required to submit to an alcotest or to breath analysis. Those circumstances exist, relevantly, if a police officer believes on reasonable grounds that the person is driving or has driven a motor vehicle. An additional requirement of voluntariness should not be superimposed on the statutory criteria.
If the respondent had been acting as an automaton at the time that she was directed to submit to breath analysis, and failed to comply, she could not be criminally responsible for her conduct. However, that is not the basis upon which the Magistrate dismissed the charge.
For the reasons given earlier, the appellant’s complaints with respect to the dismissal of Count 3 are not made out.
Appeal Conclusion
It remains to consider the consequences of the conclusion expressed earlier that the appellant has made good its complaints concerning the Magistrate’s decision concerning the question of automatism.
On the one hand, it could be said that this Court should act on its own view of the evidence and consider whether verdicts of guilty should be entered. The observations of Sgt Clark and the circumstances of his interaction with the respondent over a two hour period are strongly suggestive of conscious and voluntary (even if unremembered) conduct by the respondent and, once Dr Raeside’s evidence is put to one side, there is little to raise a doubt that the conduct was voluntary.

On the other hand, the Magistrate did accept that the respondent was an honest and reliable witness. The appellant’s critique of the Magistrate’s conclusions did not challenge that assessment in any substantive way and, as I understood it, did not challenge the Magistrate’s assessment that the respondent had no memory of the events between one and three o’clock on the morning of 28 April 2008. I also think it pertinent that Sgt Clark considered at the time that the respondent was genuine. It may be that an appropriately qualified expert giving evidence of opinion in the proper way could provide an explanation for the respondent’s conduct, or at least give evidence raising a reasonable doubt about her voluntariness.
The Magistrate made a positive finding that the respondent’s conduct was involuntary. It could be said that the flaws in the Magistrate’s reliance on Dr Raeside’s evidence, and in his own reasons, make inappropriate only his positive finding that the respondent was acting involuntarily but do not have the effect of excluding, as a reasonable possibility, that the respondent’s conduct is to be explained on the basis of automatism.
However, the Magistrate’s acceptance of Dr Raeside’s evidence in particular goes to the heart of his conclusions. It may be that if the Magistrate had not accepted that evidence, he would have made a different assessment of the respondent’s evidence.
In all these circumstances, I consider that it is inappropriate for this Court to act on its own view of the evidence before the Magistrate. Instead, the verdicts of acquittal on Counts 1, 2 and 4 should be set aside and a retrial ordered on those counts. It will be for the prosecution to consider, whether in all the circumstances of this case, it is necessary or appropriate to prosecute Counts 1, 2 and 4 a second time.
The orders of the Court are these:
1.The appeal against the acquittals on Counts 1, 2 and 4 is allowed, and the orders made in the Magistrates Court on those counts are set aside;
2.The matter is remitted to the Magistrates Court for a retrial before another Magistrate on Counts 1, 2 and 4;
3.The appeal against the acquittal on Count 3 is dismissed.

(1)Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis and throughout the preceding period of 2 hours.