Police v Smith, Mark Joseph

[2015] NSWLC 18

Local Court

New South Wales

Medium Neutral Citation:	Police v Smith, Mark Joseph [2015] NSWLC 18
Hearing dates:	18 August 2015
Decision date:	29 September 2015
Jurisdiction:	Criminal
Before:	D Williams LCM
Decision:	The accused is found not guilty of all charges
Catchwords:	CRIMINAL LAW – drive with mid-range PCA and other motor vehicle offences – admissibility of expert evidence – zolpidem intoxication – voluntariness – sane or insane automatism
Legislation Cited:	Crimes Act 1900, ss 66C, 428A, 428G Evidence Act 1995, ss 79, 135
Cases Cited:	CTM v R (2008) 236 CLR 440 Green v R (1971) 126 CLR 28 Hadba v R (2004) 146 A Crim R 291 Woodbridge v R [2010] NSWCCA 185
Category:	Principal judgment
Parties:	NSW Police Mark Joseph Smith (the accused)
Representation:	Sgt J McLoughlin (for the NSW Police) Mr T Heenan (solicitor for the accused)
File Number(s):	2014/192501

Judgment

1. At about 3.00 in the morning on the 5th of April last year, police were called to a single-vehicle car accident on Pittwater Road in Dee Why. When they arrived they found the accused, Mark Smith, trapped in the driver's seat of his car, which had crashed into a power pole. A taxi driver who saw the crash said that the accused's car wasn't speeding and didn't swerve or take any evasive action - it simply entered the intersection of Lismore Avenue and Pittwater Road, drove through it and crashed into the power pole on the other side. The crash took place about 2 kilometres from the accused's home, and at the time, the accused's car was travelling towards, rather than away from, his home.

2. People who spoke with Mr Smith at the scene reported that he was somewhat incoherent, and was not speaking in complete sentences. He did, however, tell them his name. They noticed that he smelled strongly of alcohol.

3. Mr Smith had to be cut out of his car, and he was taken to hospital with significant injuries. His blood was tested, and he was found to have a blood alcohol reading of 0.110, which is well into the mid-range. Also in his blood were a number of prescription medications, including the sleeping medication stilnox, the active ingredient of which is a drug called zolpidem. Mr Smith suffers from a number of complex and inter-related medical conditions, and it is not ultimately disputed that all of the medications, including stilnox, had been prescribed for him by medical practitioners. The prescription medications were at therapeutic levels.

4. Mr Smith says he has no memory of driving his car. He says that on the day leading up to the crash, he had visited a sick child in hospital, and that child sadly died. Despite a history of alcohol abuse, Mr Smith had been abstinent from alcohol for a considerable period of time, but upon the passing of the young child, he decided to get drunk. After returning to his home by public transport, he says he walked down to the Collaroy Beach Club, a…