R v Adamczyk

[2010] NSWDC 76

CITATION:	R v Adamczyk [2010] NSWDC 76
HEARING DATE(S):	17 March 2010
JUDGMENT DATE:	18 March 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Murrell SC DCJ
CATCHWORDS:	CRIMINAL LAW - particular offences - offences against the person - driving offences - dangerous driving causing death or bodily harm
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	Jiminez v The Queen (1992) 173 CLR 572
PARTIES:	The Crown Peter Michael ADAMCZYK
FILE NUMBER(S):	2009/131894
COUNSEL:	Mr C McPherson for the Crown Mr R Steward for the Accused
SOLICITORS:	The Department of Public Prosecutions for the Crown Hansons Lawyers for the Accused

Opening Remarks

1 The accused is charged with the offence, that on 12 May 2008, at Conjola, he drove a motor vehicle in a manner dangerous to another person when it was involved in an impact as a result of which the death of Catherine Adams was occasioned.

2 On 15 March 2010 the accused elected to be tried by a judge alone and the Director of Public Prosecutions consented. I was satisfied that, before making the election, the accused had sought and received advice from a solicitor.

3 I now set out the principles of law that I apply and the findings of fact that I make for the purpose of arriving at a verdict.

Onus And Standard Of Proof

4 I am aware that the Crown has the task of proving the accused’s guilt beyond reasonable doubt. The accused is presumed to be innocent unless and until the Crown proves him guilty beyond reasonable doubt. Suspicion must play no part in my function as the judge of the facts. As long as I have a reasonable doubt about the guilt of the accused I must return a verdict of not guilty. I am aware that the Crown does not have to prove the truth of each statement of each Crown witness. The Crown must prove each legal element of the offence beyond reasonable doubt.

5 I am aware that in making findings of fact I must rely upon the evidence. In this case, the evidence was in the form of exhibits. I must apply my common sense.

6 As a matter of practical reality, in this trial I must be satisfied beyond reasonable doubt that the accused did not honestly believe on reasonable grounds that it was safe for him to drive.

Facts

7 There was no dispute about the facts or the opinions of the experts. I am satisfied of the following facts and opinions.

8 The accused was a 57-year-old man who lived in Nowra and worked in Milton, a town south of Nowra. At about 3:30 p.m. on 12 May he left work to drive north to Nowra on the Princes Highway. When he left work, the accused did not appear to be tired. The evidence does not establish that he was affected by alcohol or drugs. He was driving a Toyota Hilux utility that was mechanically sound. The weather was fine and the road was dry. There was a moderate amount of traffic. The accused was driving within the speed limit of 100 kph.

9 Shortly before 3:40 p.m., the vehicle driven by the accused veered into the oncoming southbound lane then returned to the correct position in the northbound lane. Seconds later, the vehicle veered onto the western gravel shoulder, then across the centre line before returning to the correct position in the northbound lane. It then drifted to the left and returned to the correct position in the northbound lane.

10 Having driven approximately 19 km from Milton, at about 3:40 p.m. the accused approached Luncheon Creek. At this point the road declined, following a long, gentle, curve to the left. On the western side, there was a post and sign, and then a long metal guardrail. There was also a guardrail on the eastern side of the road.

11 The vehicle driven by the accused veered to the left and the front passenger door struck the western guardrail. The back passenger area then struck the guardrail. The vehicle veered diagonally into the oncoming southbound lane, colliding head on with a Toyota Hilux utility that the deceased, Catherine Adams was driving south along the Princes Highway. The deceased sustained multiple severe injuries. She was airlifted to St George Hospital in Sydney but later died.

12 The accused informed police that he had limited memory of the accident. He recalled a noise or impact (consistent with the impact with the guardrail) and recalled that his vehicle headed directly towards another vehicle.

13 After the accident, Dr Jones tested the accused and diagnosed him as suffering from severe obstructive sleep apnoea. The prosecution expert Associate Professor Wheatley agreed with the diagnosis. He reported that the disorder would have been present at the time of the accident. An untreated or unrecognized sleep disorder is a common risk factor for drowsy driving crashes. In the opinion of Associate Professor Wheatley, the accident on 12 May had the characteristics of a "fall asleep" crash. Inter alia, the accident occurred mid-afternoon, the driver was alone in the vehicle and the driver made no attempt to avoid a crash. Associate Professor Wheatley reported:

"As he was unaware of his diagnosis of obstructive sleep apnoea, and had not sought medical assistance for this prior to the accident, (the accused) would have been unaware of any risk of sleep apnoea contributing to daytime sleepiness and increasing his risk of a motor vehicle accident. In the absence of any specific warnings from medical practitioners regarding the possibility of falling asleep while driving, the foreseeability of such an event by the accused would simply be related to his level of understanding that sleepiness or tiredness may contribute to a motor vehicle accident. He appears to have been largely unaware that his sleepiness was a clinical problem."

14 In relation to evidence that the accused’s vehicle veered "several times and some time before the collision" Associate Professor Wheatley stated:

"It makes no difference to my conclusions. It is consistent with micro sleeps and drowsy driving, but the driver would likely be unaware of this. This is the nature of micro sleeps."

I accept the evidence of Associate Professor Wheatlley.

Elements of the Offence

15 The Crown must prove four legal elements beyond reasonable doubt:

(1) At the relevant time (the period immediately before he lapsed into a micro sleep at Luncheon Creek) the accused was the driver of a motor vehicle. In this case, there is no doubt that, immediately prior to lapsing into a micro sleep, the accused had control of the Toyota Hilux vehicle and was "driving" it.

(2) That vehicle was involved in an impact with another vehicle. There is no doubt that the vehicle driven by the accused impacted with the deceased's vehicle.

(3) The impact occasioned the death of a person. Death does not have to occur immediately. It is sufficient if the impact is the real or effective cause of the death. In this case, the impact occasioned critical injuries to the deceased, from which she died.

(4) The accused drove in a manner dangerous to a person or persons. The Crown must prove that the accused’s manner of driving substantially and seriously breached acceptable driving standards and gave rise to a very real potential danger to another person or persons. The question is whether, objectively speaking, the quality of the accused’s driving substantially and seriously departed from acceptable driving standards. It is not necessary that an accused be driving in a manner dangerous at the instant of impact if there was such a short time between the dangerous driving and the impact that, in a practical sense, the dangerous driving can be regarded as proceeding to the time of impact.

16 In this case, the Crown alleged that the accused’s manner of driving entailed a substantial and serious departure from acceptable driving standards in that the accused drove when he was tired and/or suffered from sleep apnoea, giving rise to a very real potential danger that he would fall asleep and cause an accident.

17 In Jiminez v The Queen (1992) 173 CLR 572 at [13] the High Court observed that, for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition, that condition must be such that, as a matter of objective fact, driving in that condition constitutes a danger to the public. The issue is not whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that, in the circumstances, his driving was a danger to the public. In this case, as the accused suffered from severe and untreated sleep apnoea, it was dangerous for him to drive. It was particularly dangerous for him to drive a significant distance at a relatively high speed.

Honest and Reasonable Mistake

18 In Jimanez at [17] the Court noted that honest and reasonable mistake of fact will afford an excuse for what would otherwise be an offence, although the evidentiary burden of establishing the excuse will in the first place be upon the defendant. At [21] the Court stated:

"If, in a case based on tiredness, there is material suggesting that the driver honestly believed on reasonable grounds that it was safe for him to drive, the jury must … consider whether the driver might honestly have believed on reasonable grounds that it was safe for him to drive. … the onus of negativing that defence rests with the prosecution."

19 In this trial, the issue of honest and reasonable mistake was raised through the evidence of Dr Jones and Associate Professor Wheatley. The uncontradicted evidence is that the accused was ignorant of the fact that he suffered from severe sleep apnoea. In light of Associate Professor Wheatley’s opinion that micro sleeps during the journey to Luncheon Creek probably would not have alerted the accused to his condition, the Crown Prosecutor conceded that the Crown could not negative the "defence" of honest and reasonable mistake, i.e. that the accused honestly and reasonably believed that it was safe to drive.

20 I agree with the Crown Prosecutor. I find the accused not guilty of the offence.