R v Day - [2006] SADC 64

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DAY
Criminal Trial by Judge Alone
[2006] SADC 64
Reasons for the Verdict of His Honour Judge Clayton
16 June 2006
CRIMINAL LAW
Accused charged with causing death by dangerous driving contrary to section 19A(1) of the Criminal Law Consolidation Act 1935 - trial by judge alone - verdict guilty
Criminal Law Consolidation Act 1935 s19A(1), referred to.
Kroon v the Queen (1991) 55 SASR 476 at 477; R v Coventry (1938) 59 CLR 633 at 638; R v Thompson (1975) 11 SASR 217 at 220; Giorgianni v The Queen (1985) 156 CLR 473 at 479; Hill v Baxter [1958] 1 QB 277; Cooper v McKenna; ex parte Cooper [1960] Qd R 406 at 415-419; R v Carter [1959] VR 105 at 112-113; Jiminez v R 106 ALR 162; Proudman v Dayman (1941) 67 CLR 536; R v Cornish (1988) 48 SASR 520; R v Clarke (2003) 87 SASR 203; Pfeiffer v R (1988) 48 SASR 522, considered.

R v DAY
[2006] SADC 64
`

The accused, Andrea Carmel Day, is charged with causing death by dangerous driving contrary to section 19A(1) of the Criminal Law Consolidation Act 1935. The particulars alleged are that on 11 March 2004 at Lockleys she drove a motor vehicle in a manner which was dangerous to the public and thereby caused the death of William Lesley Cook. The accused has elected to be tried by judge alone.
The fundamental elements of this charge are first that the accused was the driver of the vehicle, secondly that she drove it in a manner which was dangerous to the public and thirdly that as a result of such driving William Leslie Cook died of injuries he suffered in the collision between his van and the vehicle driven by the accused.
It is agreed that William Lesley Cook died on Monday, 22 March 2004 as a result of injuries he suffered in a collision between a Kia van registered number SA WWG-987 which was being driven by him and a Toyota Corolla registered number SA WZL-160 which was being driven by Andrea Carmel Day which collision occurred on Sir Donald Bradman Drive, Lockleys at about 7.15am on Thursday, 11 March 2004.
Other agreed facts are that a sample of blood obtained from the accused by Dr Guterres on Thursday, 11 March 2004 was examined and analysed by Peter Charles Stockham and that Andrea Carmel Day was an in-patient at the Royal Adelaide Hospital from about 8.00am on Thursday, 11 March 2004 until Wednesday, 24 March 2004.
There is no dispute as to the movements of the vehicle driven by the accused leading up to the collision which is the subject of the charge. The element of the charge that is in dispute is whether the manner of driving was dangerous to the public.
On 11 March 2006 Ms Day worked as a nurse on nightshift at a hospital in Adelaide. After finishing work at about 7.00am she bade farewell to her colleagues and commenced driving to her home in a western suburb. Her usual route, which she took on that day, took her down Sir Donald Bradman Drive to the junction of that road and May Terrace at Lockleys where Sir Donald Bradman Drive veers first to the left and then back to the right in an S-bend.
The car being driven by Ms Day was a small Toyota which had only travelled about 2,000 kilometres. It was in good condition. The vehicle travelled west in the right hand or northern lane for westbound traffic on Sir Donald Bradman Drive. Just west of the junction with May Terrace the speed limit for westbound traffic increased from 60 to 80 kilometres per hour. There was a sign indicating the speed change. To the west of the junction with May Terrace the two lanes for westbound traffic on Sir Donald Bradman Drive were separated from the two lanes for eastbound traffic by a median strip. The median strip has an apex at its eastern most extremity which is just to the west of May Terrace and then widens to a width of about two metres.
The accused’s vehicle did not veer to the left to follow the sweep of the S-bend, but continued straight ahead, crossed the median strip and collided with the van being driven by the deceased in the right hand lane for eastbound traffic on Sir Donald Bradman Drive.
There is no criticism of the manner of driving of the deceased.
The immediate cause of the collision was the failure of the Toyota to negotiate the left hand bend. The two vehicles collided in the right hand or southern lane for eastbound traffic on Sir Donald Bradman Drive. Examination of the scene by police officers did not reveal any marks caused by braking or an attempt to swerve by the Toyota. Photographs corroborate their evidence. The driver of the van would have had little or no warning of the approach of the Toyota. The course taken by the Toyota was unexpected.
The accused gave evidence of her recollection of the occurrence. She said:
The drive home was unremarkable. From what I gather I can remember the lights of Airport Road and the intersection to the airport. I don’t actually remember the accident as such. I just remember someone pulling me out of the car, the airbag had been deployed, someone telling me, I think, that I’d had an accident, getting me over to the corner of the side of the road, sitting me on the kerb and I didn’t look at the accident, I didn’t even know where the accident had occurred at the time or if I’d hit anything or what I’d hit and then a woman sat down next to me and it just went from there.
The accused also said that when she got out of her car after the collision she was “just in a daze I didn’t know what had happened” and that a lady told her what had happened (T 127-128).
The traffic lights at the intersection of Airport Road are several hundred metres east of the site of the collision.
The speed limit which was applicable to the accused was 60 kilometres per hour. Although one witness thought that she was travelling “quickly” there is nothing to suggest that her speed exceeded the limit.
Mr McIntyre was a passenger in a vehicle being driven east along Sir Donald Bradman Drive by Mr Wescombe. He witnessed the collision. After the vehicle in which he was a passenger had been parked he went to the accused’s vehicle and asked her how she was. That was a couple of minutes after the collision. The accused was conscious. Mr McIntyre enquired whether she could be moved, the accused said she was “OK” and he helped her out of the car. She was able to reply to his questions within a few seconds. He assisted her but she was able to get out of the vehicle of her own accord. He assisted her to the kerbing where she sat down. He could not recall any conversation as he got her out of the car, but after she had sat on the kerb she asked Mr McIntyre to get her puffer. Mr McIntyre did that and a minute or so later she requested him to get her bag from the front passenger seat of the car. Mr McIntyre described the demeanour of the accused when he first approached her and as he was getting her out of the car as calm. During the time that he was with the accused she said nothing to indicate that she did not have any recollection of what had happened.
Mr Wescombe also witnessed the accident. He parked his vehicle and called Emergency Services. He observed Mr McIntyre assisting the accused from her vehicle. Mr Wescombe said the accused appeared to be conscious and talking and seemed to be quite lucid, but was quite distressed and in some pain.
Ms Loxton is an ambulance officer who examined the accused at the scene. In a written statement she wrote “she [the accused] had no recollection of the circumstances of the collision”. She also wrote “she stated to me that she was taking ‘self administered’ morphine for pain relating to knee surgery” and that the accused refused pain relief.
Dr Koh is a registrar in the trauma room at the Royal Adelaide Hospital. He took a history from the accused which included asking whether the accused was taking any medication. The accused told Dr Koh that she was taking MS Contin at a daily dose of 1,000mg and that she was taking morphine injections at a dose of about 90mg. Dr Koh did not ask and was not told whether she had taken any MS Contin within the last 24 hours or whether she had any morphine injections within the previous 24 hours. If the accused had last taken 500mg of MS Contin 24 hours before the collision and did not use morphine sulphate at all during that period, it is strange that she did not advise Dr Koh of that fact. Dr Koh did ask the accused whether she had experienced any loss of consciousness and, by placing a tick in a box on a form; she told him that she did not lose consciousness when she had the car accident.
Dr Guterres was the on-duty registrar in the Royal Adelaide Hospital on the morning of 11 March 2004. At 8.10am he took a sample of the blood of the accused. The sample was received at the Forensic Science Centre for analysis on 12 March 2004. Mr Stockham, a forensic scientist, found the blood was denatured and therefore not suitable for quantitative analysis. The denatured blood sample was reconstituted with water and analysed qualitatively for the presence of alcohol and drugs. Mr Stockham’s findings were:
·Alcohol was not detected.
·Low concentrations of oxazepam, diazepam and nordiazepam were detected in the reconstituted denatured blood.
·Morphine was detected in the reconstituted denatured blood.
In a later statement Mr Stockham said that the concentration of morphine in the reconstituted blood was approximately 0.3mg/kg. The statement includes the qualification:
The concentration of morphine in the reconstituted denatured blood was approximately 0.3mg/kg. This concentration may not reflect the true concentration of morphine in the suspect’s blood at the time the blood was taken due to the uncertainty in the mechanism of the denaturation process. Accordingly, this result should be interpreted with caution.
Mr Stockham gave evidence about denatured blood. He described it as a blood sample which rather than being in a liquid form has turned to a paste. While the presence of a drug could be determined the ability of Mr Stockham to properly quantify the amount of the drug was inhibited. He said the analysis of the concentration of morphine in the blood of the accused was an approximation which he meant that the concentration of the drug within the denatured sample might be precisely as recorded, might be higher, or might be lower.
The analysis also showed that there was also 0.3mg of oxazepam per litre, 0.02mg per litre of diazepam and 0.04mg per litre of nordiazepam in the blood of the accused. Oxazepam is also known as Valium. Diazepam is also known as Serapax. They are used to treat anxiety and insomnia. Nordiazepam does not come as a drug by itself, but is a metabolite or breakdown product of diazepam.
Whether a vehicle is driven in a manner dangerous to the public for the purposes of section 19A of the Criminal Law Consolidation Act 1935 is to be determined by an objective standard. It is not necessary that the accused intended to drive dangerously or was aware that she was doing so. The test is whether a reasonable person in the position of the accused would have appreciated the danger.
The difference between dangerous driving and driving without due care is that the former involves a situation in which a reasonable person in the position of the driver would recognise as dangerous in the sense that it exceeds the ordinary risks of the road. Kroon v The Queen[1]. I have no difficulty in finding that to drive a vehicle at about 60 kilometres per hour into the path of traffic travelling in the opposite direction at about the same speed would normally amount to dangerous driving. Such driving was not an ordinary risk of the road.
[1] (1991) 55 SASR 476 at 477
There is a further consideration. The standard of driving to which I have referred is applicable only to a voluntary act of driving. See Kroon at page 478. If the driving is deprived of the necessary voluntariness by reason of the unconsciousness of the accused the offence is not made out. See Kroon at page 478 referring to R v Coventry[2], R v Thompson[3], Giorgianni v The Queen[4], Hill v Baxter[5], Cooper v McKenna; ex parte Cooper[6] and R v Carter[7].
[2] (1938) 59 CLR 633 at 638
[3] (1975) 11 SASR 217 at 220
[4] (1985) 156 CLR 473 at 479
[5] [1958] 1 QB 277
[6] [1960] Qd R 406 at 415-419
[7] [1959] VR 105 at 112-113
In her evidence referred to above, the accused said that she had no recollection of driving beyond the traffic lights at the intersection of Sir Donald Bradman Drive and Airport Road. That is, she had no recollection of driving for several hundred metres prior to the collision. She had no recollection of the collision itself and her first recollection after the accident was of being in her vehicle at a time which was shortly after the collision.
The accused suffered abdominal injuries in the collision which required hospitalisation. Dr Robinson, a neurologist, expressed the opinion that the accused could easily have suffered a closed head injury, been concussed and suffered a period of amnesia. However, there was no concern about that possibility at the Royal Adelaide Hospital. While it may explain her lack of recall, a head injury sustained in the collision could not explain the events leading up to the collision.
It can be inferred that the accused was not in control of her vehicle when it failed to take the bend, mounted the median strip and moved into the path of oncoming traffic. Only a person on a suicide mission would deliberately drive in such a way. I accept that the driving which is criticised was not voluntary. The critical question is why was the accused not in control of her vehicle.
Counsel for the accused submitted that when I come to examine the manner of driving of the accused I should look for the cause or reason why she continued straight ahead rather than take the bend. He pointed out that it was not a case of an unskilled driver failing to take the bend, or the accused taking the bend too fast, losing control or not negotiating the bend properly. It was not a case of a wet road, or an unexplained feature or a case where the accused was observed driving recklessly. There is nothing to suggest that up until the very last moment the accused was driving other than in accordance with the rules of the road. Possibilities suggested by counsel were inattention caused by a “micro sleep” or a seizure.
In Kroon, King CJ, after referring to authorities, said that a driver cannot be convicted of driving in a manner dangerous to the public during a period when he is asleep (see page 479). King CJ said:
Every act of falling asleep at the wheel is preceded by a period during which the driver is driving while awake and therefore, assuming the absence of involuntariness arising from other causes, responsible for his actions. If a driver, who knows or ought to know that there is a significant risk of falling asleep at the wheel, continues to drive the vehicle, he is plainly driving without due care and may be driving in a manner dangerous to the public. If the driver does fall asleep and death or bodily injury results, the driving prior to the falling asleep is sufficiently contemporaneous with the death or bodily injury (McBride (supra), PER Barwick CJ (at 51)) to be regarded as the cause of the death or bodily injury.
It is clear then that the question how sleep came upon an accused person and whether he had any premonition of it, so far form being irrelevant as held in Virgo v Elding [1939] SASR 294, is the crucial issue in determining whether the period of conscious and voluntary driving which preceded the sleep amounted to the offence or offences charged. There must be very few cases in which a normal healthy person falls asleep at the wheel of a vehicle without any prior warning. Such warning may come in a number of ways. There will be cases in which the driver ought to be aware of the risk by reason of the length of time during which he has driven without rest, the conditions under which he has driven, the atmosphere in the cabin or his state of health. There will be cases in which he has direct warning from experiencing drowsiness. I should think that in almost every case a driver, before falling asleep, has a sensation of drowsiness at least for the brief period of time necessary to warm him to stop the vehicle. The cases must be rare in which a driver who falls asleep can be exonerated of driving without dur care, at least in the moments preceding sleep.
The most difficult issue in this class of case is whether the driving prior to sleep amounts to the indictable crime. The critical issue is the degree of the accused person’s departure from the standard expected of an ordinary prudent driver. The period of time during which the accused experienced drowsiness, whether proved by direct evidence or inferred from the behaviour of the vehicle or other factors, will be important. So will the degree of departure from prudent standards involved in continuing to drive for a prolonged period without rest or in spite of conditions in the cabin or poor health.
The central issue in this case is to determine the reason for the inability of the accused to control her vehicle. If the accused had suffered an unexplained seizure or unexpectedly fallen asleep the driving which is complained of would not have been voluntary and she must be acquitted.
The accused denied that she was sleepy when she left the hospital on her journey home. She gave evidence that she had slept well the previous day in preparation for her work on nightshift on the evening of 10-11 March 2004. There is no evidence that the accused had experienced drowsiness or any other premonition that she might fall asleep. There is no evidence that she did fall asleep.
In Jiminez v R[8] the High Court of Australia approved of the remarks of King CJ in Kroon. In the majority judgment (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) the court said:
It follows 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, his driving in that condition is a danger to the public. Various matters will be relevant in reaching such a conclusion. The period of the driving, the lighting conditions (including whether it was night or day) and the heating or ventilation of the vehicle are all relevant considerations. And, of course, it will be necessary to consider how tired the driver was. If there was a warning as to the onset of sleep that may be some evidence of the degree of his tiredness. And the period of driving before the accident and the amount of sleep that he had earlier had will also bear on the degree of his tiredness. But so far as “driving in a manner danger” is concerned, 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. The various matters which bear on that question, and the way in which they bear on it, should be carefully drawn to the attention of the jury.
[8] 106 ALR 162
Prior to the accident, and subsequently, the accused suffered from seizures which resulted in a loss of consciousness. Also, she had for a number of years suffered from pain in her knees which was treated by abnormally large doses of morphine.
Dr Templeman had seen the accused on several occasions after she had suffered seizures. The first was on 21 July 1995. Dr Templeman prescribed a drug called Epilum. The accused saw Dr Templeman and asked for another prescription of Epilum on 18 November 1996. On 9 April 1997 Dr Templeman saw the accused after she had suffered another seizure. Between April 1997 and March 2004 Dr Templeman saw the accused several times a week but did not note any further seizure up to the time of the accident. It was not until 14 February 2005 that the accused advised Dr Templeman that she had suffered another two seizures. Dr Templeman referred her to Dr Martin Robinson, a neurologist. Later the accused told Dr Templeman that she had a further seizure on 7 March 2005. On 28 April 2005 the accused told Dr Templeman that she had suffered two seizures that day.

Dr Robinson first saw the accused in 1993 when the accused was referred to him after she had suffered a seizure at work at the Ashford Hospital. Dr Robinson gave evidence. On 9 May 2006 the accused told him that she had suffered four seizures since the accident. He was asked to assume the circumstances leading up to the collision and said:
It certainly suggests that she wasn’t in control of the car. It doesn’t necessarily mean that there had been a seizure. One can infer that something may have taken place for her to lose control of the car.
Dr Robinson said that there were features of the history which the accused gave him which were inconsistent with her having suffered a seizure at the time of the accident. Previously the seizures had been of a convulsive type and post-seizure she was confused and unresponsive for several minutes. He said:
In this accident, it would seem that the period of time it took for her to lose control of the car may have been very brief, maybe only a few seconds. And it seemed that by the time people were attending at the car afterwards, that was almost immediate, that they found her able to talk and respond to their requests, was she hurt, and so forth, suggesting that she had recovered quite quickly. Andrea also herself said she didn’t feel the same afterwards as she normally feels after her seizures. She normally feels rather flat and slow to get going and so forth and she seemed to be having a different sense as to this accident as to what she normally has. (T 203)
In evidence in chief Dr Robinson was unable to exclude as a possibility that the accused had suffered a seizure during the accident, although in cross-examination he agreed that the possibility of a seizure was unlikely. His reasons for that opinion were the duration was rather brief, no witness saw her in a convulsive state and the recovery time seemed very brief. He also agreed (T 204) that there was no feature of the crash itself or her presentation immediately afterwards which suggested that a seizure had occurred. He agreed that at the end of the day, on the material that he had been provided with, a seizure immediately before the crash was really a very theoretical possibility (T 211). He agreed there was nothing concrete to suggest a seizure on the day (T 204). Dr Robinson agreed in cross-examination that he reached the position where it was his view that inattention or some kind of micro sleep would have been more likely to be responsible than a seizure. He also agreed that inattention and micro sleeps could be a by-product of morphine ingestion.
Ms Day gave evidence of the seizures that she had suffered both before and after the accident. She said she does not have any indication or warning that she is about to experience a seizure. She said that she did not think that she had had a seizure prior to the accident (T 115-14). There is no evidence that she experienced the usual after-effects of a seizure. Also her conduct and appearance when approached immediately after the collision is inconsistent with her having suffered a seizure. In considering her post-accident presentation in accordance with the submission of defence counsel I make allowance for the circumstances in which the events occurred.
The evidence does not establish that the defective driving was a consequence of a seizure. Loss of consciousness as a result of a seizure is no more than a theoretical possibility.
Since 1994 the accused has been a patient of Dr Templeman, a general practitioner, in respect of her knee complaints. She has undergone many surgical procedures and, over the years, her requests for analgesia have increased. Initially, Dr Templeman referred the accused to a psychiatrist and the Pain Management Clinic at the Flinders Medical Centre for palliative care. In July 2000 the accused was referred to Dr Buttfield. Since that time Dr Buttfield has been in charge of her treatment and the management of her pain. Dr Buttfield has prescribed morphine-based analgesia. At times Dr Templeman prescribed Valium and Serapax in addition.
The prescriptions written by Dr Buttfield since 21 August 2001 are listed in Exhibit A21. His prescriptions have provided a constant supply of morphine-based medication in the form of a combination of MS Contin tablets, Anamorph tablets and morphine sulphate injections. At times Dr Buttfield had also prescribed pethidine.
MS Contin is a slow release tablet which provides cover over a period of time. Morphine sulphate is injected intramuscularly and provides quick relief on top of the MS Contin, but only has a life of several hours.
Dr Buttfield gave evidence that he was treating Ms Day for both her knee pain and an addiction. He has continued to treat her up to the present time. Immediately prior to the accident on 11 March 2004 Dr Buttfield had seen Ms Day on 13 January, 21 January, 22 January, 23 January, 17 February and 2 March 2004. On 17 February 2004 Dr Buttfield gave the accused a prescription for morphine sulphate injections of 30mg/ml. The instructions were three daily PRN. On the same day Dr Buttfield prescribed MS Contin SR tablets 100mg. The instructions were to take ten tablets daily. The prescription included two repeat prescriptions of the morphine sulphate and the MS Contin. With the repeats the prescriptions written by Dr Buttfield on 17 February 2004 would have provided sufficient morphine for the accused to consume ten 100mg tablets of MS Contin and to inject three 30mg/ml injections of morphine sulphate each day for 30 days. At the prescribed rate the morphine prescribed on 17 February 2004 should have lasted until about 18 March 2004.
On 2 March 2004 Dr Buttfield gave the accused a further prescription. The prescription for morphine sulphate injections was the same as the previous one, namely 30mg/ml three times daily, but the dosage of MS Contin 100mg tablets was increased from ten to twelve per day, that is a total of 1,200mg per day. Again the quantity of MS Contin and morphine sulphate allowed by the repeat prescriptions would have been sufficient to last 30 days.
If Dr Buttfield had required the drugs prescribed on 17 February 2004 to be consumed before providing a further prescription the accused would not have been due for a new prescription until 18 March 2004, but as I have mentioned, Dr Buttfield gave the accused the further prescription on 2 March 2004. In evidence Dr Buttfield said he had prescribed a larger than usual quantity because he was going on vacation and he wanted the accused to have a sufficient supply to tide her over during his absence.
In Jiminez, their Honours referred to the Proudman v Dayman[9] defence, that is an honest and reasonable belief in a state of facts which, if they existed, would make a defendant’s act innocent. If an accused satisfies an evidentiary onus and raises the possibility of such a defence, the prosecution must establish beyond reasonable doubt that the defendant did not honestly believe on reasonable grounds in the existence of facts, which in the circumstances, would take her act outside of the statute (Jiminez at page 168). The issue can be raised when the dangerous manner of driving is said to consist in the likelihood of going to sleep and the driver claims that she had no warning of the onset of sleep. In Jiminez the court held that it was necessary for the prosecution to establish that the applicant for special leave was affected by tiredness to an extent that, in the circumstances, his driving was objectively dangerous (Jiminez at page 169 35-40).
[9] (1941) 67 CLR 536
If Ms Day honestly and reasonably believed in a state of facts which meant that in the circumstances it was safe for her to drive she should be acquitted. Whether she did have such a belief must be considered together with the evidence of the consumption of morphine by Ms Day.
As I have mentioned, the test of whether the manner of driving was dangerous is an objective one. The objective fact that a driver’s ability to drive may have been affected by a drug is one matter which must be considered. It is not necessary that the driver should have realised that she was creating a potential danger by driving following drug use. In R v Cornish[10] King CJ said (at 523):
The law is quite clear that the test as to manner of driving upon a charge of this kind is an objective test. The question is whether in the judgment of the jury the manner in which the accused has driven, viewed objectively, amounts to driving in a manner dangerous to the public. It follows from that the objective fact that a driver’s driving skills have been impaired by the consumption of alcohol is a factor to be taken into account in assessing whether the manner of his driving was dangerous in the relevant sense. That is so whether or not the driver himself realised, or even ought to have realised, that his faculties had been or might be affected by the alcohol which he had consumed. I refer here, of course, to the voluntary and knowing consumption of alcoholic liquor. Different considerations might well apply to the involuntary or unknowing consumption of liquor.
[10] (1988) 48 SASR 520
Those comments with respect to alcohol have equal application to other intoxicating drugs such as morphine.
A high level of intoxication may by itself amount to driving dangerously if the prosecution has proved that at the relevant level the accused would have been incapable of exercising proper control over her vehicle. Evidence of drug use is a matter which must be looked at in conjunction with all of the other circumstances. The prosecution does not have to prove beyond reasonable doubt that but for the presence of drugs in her bloodstream there would have been no accident.
The application of the objective test referred to in Cornish and the availability of a Proudman v Dayman defence as suggested in Jiminez raise the subtle distinction between a driver who objectively ought to have realised that her faculties were impaired and a driver who had a positive honest and reasonable belief that she was in a fit condition to drive.
Professor J M White, who is the Director of Treatment and Rehabilitation Services with the Drug and Alcohol Service of South Australia, is an expert pharmacologist. He said that there are potential side effects of morphine. It can slow down breathing and there is a risk of death. It can cause a drowsiness or sedation so that the person has difficulty functioning normally. That may be accompanied by impairments in thinking and ability to concentrate. The side effects become more pronounced at greater concentrations of morphine within the bloodstream. A person may have difficulty in working under the influence of the drug if those effects are too strong. He said that research programmes conducted into the effects of morphine showed that if morphine is administered to someone not accustomed to the drug, the drug will cause impairment in the faculties relevant to driving, that is, the ability to concentrate or attend to the road, the speed with which they can react and the ability to make decisions. The effect of morphine will vary from individual to individual and in the case of a particular individual may vary from day to day. A person who is taking morphine may appear to be relatively normal, that is not tired or sedated, but still have her faculties which relate to driving impaired to some degree, even a significant degree.
Professor White is familiar with MS Contin which drip feeds morphine into the bloodstream so that the drug has a therapeutic effect for 12 hours. He is also familiar with morphine sulphate which is morphine in its normal form, not a slow release form. If injected, morphine sulphate is quick acting.
The accused gave evidence that as at 10 March 2004 she had been prescribed MS Contin tablets 1,000mg a day and morphine sulphate injections of 90mg IMN. As to the MS Contin she said that she would take 500mg in the morning and 500mg at night. If she was working she would not take the nightly dose, but would take a morning dose of anywhere between 500 to 1,000mg. She said that on the morning of 10 March 2004 she had taken 500mg of MS Contin when she arrived home from work. She took only 500mg because her knees were not terribly bad.
So far as the morphine sulphate injections are concerned, the accused said that she would not inject the drug if she was working at night. She said:
I do not take them at all during the night while I’m at work. I would only ever take them on my days off if I had severe pain as a breakthrough type of medication.
The accused acknowledged that the prescription of MS Contin had increased from 1,000mg per day to 1,200mg per day, but she said she could not recall when that occurred. Exhibit A21 shows that the increase in the prescription had occurred on 2 March 2004.
As to the effect of MS Contin on her the accused said:
I believe the MS Contin had absolutely no effect on me whatsoever working. I didn’t feel any euphoria, it didn’t make me feel tired at all. I felt fully alert. I didn’t feel any fatigue at all. I did my work well, I was alert, cheerful, happy and I believe it didn’t have any effect on me in that regard. (T 108)
She was also asked whether she was aware of any effect that the MS Contin may have had on her ability to drive. She said “no, none at all. I just say, if I had noticed anything I would not have driven”.
When asked about her work on the nightshift on Wednesday, 10 March/ 11 March 2004 the accused said she did not notice anything about herself which was different in terms of her alertness, drowsiness or anything else. She said “I wasn’t drowsy at all, I was fully alert all night”. She said at the end of the shift she was “fully alert, keen to get home. I was having surgery the next day.... I was quite alert, cheerful and keen to get home”. (T 109)
I have already referred to the evidence of the accused about her drive home along Sir Donald Bradman Drive.
The accused said she had asked Dr Buttfield if driving was okay and that he did not mention that it would impair her driving at all. She said no one had told her not to drive (T 110).
In addition to morphine the accused had been prescribed Serapax and Valium. Valium is a muscle relaxant which she used to get her knee back into place when it dislocated. The accused used Serapax to help her sleep when her knee was extremely painful and she could not sleep. The accused gave evidence that she used Valium and Serapax very rarely and that the last time she had taken those drugs prior to the accident was two weeks earlier when her knee had dislocated. She said “there is no other reason why I would have taken them I am sure”.
Professor White gave evidence that the usual therapeutic range for MS Contin is approximately 30 to 120mg per day, but some people will require dosages outside of that range. In extreme levels people may need 1,000 or possibly 2,000mg per day. They are generally people who have cancer pain, in particular terminal cancer pain.
Professor White said there would have to be a good reason for benzodiazepam to be taken in conjunction with morphine as there is some danger in taking drugs together.
The concentration of morphine in a person’s blood that is effective in producing pain relief is 0.025mg per litre upwards. Professor White regarded a concentration of 0.3mg per litre as “a very high concentration”. He said that exceeds the concentration that would occur with a consumption of MS Contin within the normal therapeutic range of up to 120mg per day.
Professor White said benzodiazepam could cause sedation, impair concentration, slow reactions and impair thinking. The effects become more pronounced the greater the concentration. If morphine and benzodiazepam are taken in tandem there will be some addition of the side effects so that the amount of sedation and impairment of concentration and slowing of reaction time will be the sum of the effect of the two drugs.
The effect of both morphine and benzodiazepines at various concentrations will vary from individual to individual. Also the effects of morphine and benzodiazepam on a particular person’s faculties may vary from day to day depending on circumstances such as whether the person has had adequate sleep.
Professor White said the normal dosage of MS Contin as stated in the manufacturers product information and in handbooks such as the Australian Medicines Handbook is in the range of 30 to 120mg per day, with normally two or sometimes three doses per day.
Regular users of morphine and benzodiazepines develop a tolerance to the side effects of the drugs as a result of prolonged exposure to that drug or a drug that has a similar kind of action. The tolerances will vary from individual to individual. A person with a tolerance to the sedative effects of morphine may appear to be relatively normal, that is not tired or sedated, but still show some degree of impairment. A person may appear awake and alert to the casual observer, but nonetheless have his or her faculties which relate to driving impaired.
Professor White said that when a person with a tolerance to a drug has the dose increased the person is not necessarily tolerant to the increased amount and the person is likely to experience more pronounced effects of the drug for up to several weeks after the dose increase. For example, the side effects such as the ability to concentrate well and think clearly may be more impaired in the two weeks after a dose increase. That could happen for two weeks after a dose increase such as an increase from 1,000mg per day up to 1,200mg per day. A person’s tolerance is never complete and there is virtually always some residual side effect still present. The side effects have a deleterious effect on the faculties associated with driving.
Professor White said that a concentration of 0.3mg oxazepam was not a particularly high concentration and depending on the balance of the individual the likely effects would not be very large. A concentration of about 0.3mg oxazepam, 0.02mg of diazepam and about 0.04mg of nordiazepam had some potential for an effect.
Professor White was unable to state what quantity of morphine would have to be ingested to produce a level of approximately 0.3mg of morphine per litre in a person’s blood. However, he did say “generally speaking a concentration of .3 milligrams per litre is a very high one and a person would have had to have taken a very large dose of morphine in order to achieve that concentration”. As to what would constitute a very large dose he said:
....it would be several times, for example, the upper end of the therapeutic range that I mentioned earlier, 120 milligrams per day, that would not be sufficient to produce that concentration. It would require a dose of at least several times that level, but beyond that I can’t be specific (T 84).
Professor White was asked whether he would expect an individual at a level of 0.3mg per litre to suffer side effects and he said “it would seem to be a very high concentration and that even with tolerance there is likely to be other side-effects of the drug”, including impairment of faculties related to driving.
He said that if a combination of 0.3mg per litre of oxazepam, about 0.02mg per litre of diazepam and about 0.04mg per litre of nordiazepam were added to 0.3mg per litre of morphine in a person’s blood there would be an increase in the risk. The potential for an effect would be exacerbated if the individual’s dosage had been increased from 1,000mg to 1,200mg about seven to nine days earlier. That evidence assumes that the person ingested the drug at exactly the prescribed rate. In the case of the accused the prescription shows that her dosage had been increased, but an increased prescription does not by itself establish the rate at which the accused ingested the drug.
Particular scenarios were put to Professor White. He said that it was very unlikely that a person would have a concentration of 0.3mg of morphine per litre solely from the ingestion of 500mg of MS Contin 24 hours previously. He was then asked to express an opinion with respect to increasing dosages of morphine. He said that it is possible that a dosage of 500mg at 8.00am and a further 500mg 12 hours later could give rise to a concentration of 0.3mg per litre in a person's blood 12 hours after the second dose, but qualified that answer saying it was “quite a high concentration for that dosing pattern”. If a dose of 30mg of morphine sulphate was injected at any time up to two hours prior to the sample being taken at 8.00am after doses of 500mgs at 8.00am and 8.00pm the previous day that could possibly produce a concentration of 0.3mg per litre of morphine in a person's blood.

In cross-examination Professor White repeated that the ingestion of 500mg of MS Contin 24 hours before a sample of a person’s blood was taken was unlikely to result in a concentration of 0.3mg per kilogram (T 244). That is the scenario raised by the evidence of the accused. Professor White said
The most likely scenario to give rise to that concentration [of 0.3mg per kilogram] would be one where there was both oral administration closer to the time and injection of the drug given that it was a very high concentration. (T 244)
It can be inferred from the evidence as a whole, if it has not been established by other evidence, that the accused was conscious of the fact that morphine had the potential to affect her ability to drive. For example, she said she did not take the second daily dose of MS Contin prior to going to work on nightshift and she said that she never injected morphine sulphate whilst she was at work. The full extent of the awareness of the accused of the dangers of driving after using morphine emerged slowly as the evidence progressed.
As I have mentioned, the accused gave evidence that she had asked Dr Buttfield if driving was okay and he did not mention that the morphine would impair her driving. She also said that no one told her not to drive. In evidence, which I refer to below, Dr Buttfield contradicts that evidence of the accused.
The accused said that the last time that she injected morphine sulphate before the collision might have been on the previous weekend, maybe three days earlier. She said the reason why she did not take an evening dosage of MS Contin when she was working was because:
I’m a professional nurse. Even though it doesn’t make me feel euphoric or high, or whatever you might like to call it, I just didn’t want it to have any effect on me at all while I was working and I just decided it’s not what I wanted to do. I just wanted to take it in the morning only.
In addition she said she never injected morphine sulphate in the evenings before she went to work:
Because it’s not something you do. You don’t take medication like that while you are at work, any type of work, let alone when I’m at work giving other patients medication (T 118).
She agreed that may have been because of a risk that her concentration might be impaired if she had taken morphine immediately before going to work or whilst at work, but denied that the reason why she did not take morphine and MS Contin on evenings when she was working was because she was scared it would impair her concentration as a nurse. She said she did not take it because her knees were not too bad and that if her knees were so bad that she needed to take the medication she cancelled the shift.
The accused said that the last time she had taken Serapax or Valium was “probably about two weeks before the accident because that’s when my knee dislocated....” (T 120). She denied taking Valium or Serapax in the 48 hours before the crash (T 120).
The accused admitted that injectable morphine sulphate had made her tired for a short period when it was first prescribed for her years ago.
The accused said that in the six months leading up to the accident she had never experienced side effects from the MS Contin, she had never experienced drowsiness, difficulty in concentrating or perceived any impairment in her ability to react to things (T 121). She had previously experienced side effects from MS Contin but that was when she started taking the drug (T 122).
As far as the injectable morphine was concerned the accused said that in the six months leading up to the accident she had experienced occasional tiredness (T 121). The accused said that when Dr Buttfield first started prescribing injectable morphine she did experience side effects (T 123), but that was a long time ago. She said “I think I would have to say there were times when the injectable morphine would have a side-effect on me and there are other times when it didn’t, I’m not sure why”. When asked how often she experienced side effects from the injectable morphine in the 12 months leading up to the accident the accused said she could not remember that but also said:
....it might be every second time I took it, it could be every second time I took it or mightn’t be the time later, I don’t know why it made a difference as to when I took it or why I took it. It just varied a lot as to when I got side-effects and when I didn’t.
She said the nature of the side effects of the injectable morphine was “just tiredness, slight tiredness” (T 124): not enough to put her to sleep but enough to make her feel a little bit of drowsiness. Asked whether the drowsiness was enough to make her concerned about driving she said:
I wouldn’t go out driving because if it got to the point that I required that injectable morphine I was obviously in enough pain that I was lying down in bed so I wasn’t out driving.
That answer implies an acknowledgment that it was not safe to drive because of the risk of drowsiness when using injectable morphine.
The accused said that the last time before the collision on which she had to cancel a shift because of knee pain was on 8 March 2004.
The accused denied that her knee pain was any worse on the night of 10 and 11 March 2004 (T 126) or that she had taken morphine shortly prior to finishing work on the morning of 11 March 2004.
It was suggested to the accused in cross-examination that she had consumed a 30-day supply of MS Contin between 17 February and 2 March 2004. That would have been greatly in excess of the prescribed rate of dosage. She replied:
Not necessarily. There have been times when I have misplaced a box of scripts or a box of tablets at times where if mum has gone down and got them or something and they have accidentally been thrown out or something....
I do not accept that a nurse, herself addicted to morphine, would have been so casual about the safekeeping of a habit-forming opiate, but the evidence of the prescriptions by itself does not establish that the accused had been consuming morphine at a greater rate than was prescribed. There is an inference that the accused was consuming morphine at a greater dose than she admitted which arises from the fact that the quantities of both MS Contin and morphine sulphate which were prescribed by Dr Buttfield would have been unnecessary if her consumption was limited to the actual usage of morphine described in the evidence of the accused.
Dr Buttfield saw the accused initially at the Drug and Alcohol Services Council and has treated the accused for pain and an addiction. Dr Buttfield deals with drug dependence. Dr Buttfield gave evidence of the amount of morphine-based analgesia that he had prescribed for the accused and said that on none of the occasions that he observed her before the accident did she show any signs of the effects of the drug. The side effects that practitioners look for when prescribing morphine-based medications are drowsiness or intoxication. He had never seen those symptoms with the accused. He was aware that she was working and fully supported that. He understood that she was driving a motor vehicle, but had no concerns about that fact. He had discussed her drug usage with her regularly and believed that if anything she was under dosing herself when she was going to work.
Dr Buttfield first said that at no time prior to the accident did he proffer any advice or caution to the accused about driving a motor vehicle whilst ingesting the quantity of morphine-based analgesia prescribed by him. He took the question to refer to ingestion of the MS Contin tablets and said:
I don’t believe that there was any need, but we certainly discussed the issue of driving when she had an injection and she assured me that she never did that.
Later he said he had a responsibility for the public safety and “I always recommend to people who have to have injections for break-through pain that they don’t drive afterwards. It is a routine question that I ask of everyone”. (T 158)
It was Dr Buttfield’s view that there is no reason why she should not drive within an hour of taking 500mg of MS Contin tablets. His evidence that “for a start it takes an hour and half for MS Contin to take effect” was no real answer and leaves one guessing as to what the position is after an hour and a half.
Dr Buttfield’s advice as to injectable morphine was “don’t drive”. His reason for that was “the level of morphine with the injectable goes up very quickly and could cause intoxication” (T 162). His advice to the accused was that she should not drive after taking 30mg of injectable morphine. His advice would have been even stronger with doses of 60 and 90mg of injectable morphine. Dr Buttfield said that advice was repeated from time to time and that the accused “was aware because she knew the effect of these medications that she should not drive after taking them” (T 162). Dr Buttfield said he told the accused not to use injectable morphine and then drive and not to use injectable morphine and then work (T 170).
Dr Buttfield said that the reasons why a person should not drive after taking injectable morphine were intoxication, that is, inability to concentrate to drive properly. The effects can be equated with alcohol; that is impaired ability to concentrate, impaired reaction times, a degree of tunnel vision, feelings of overconfidence, inability to judge distances, inability to react to bends in the road, and increased potential to nod off at the wheel. In summary, he said, intoxication by morphine has the potential to impair everything, all human faculties connected with the proper safe management of a motor vehicle (T 175). He agreed that as with alcohol degrees of intoxication by morphine can range from a person who might be mildly intoxicated and be driving not quite as well as they otherwise might have been but nonetheless in a generally acceptable manner to a person who was an out and out danger (T 176). Ultimately Dr Buttfield acknowledged that if the dose of MS Contin is inappropriately increased that can cause such a similar degree of intoxication because “MS Contin is morphine” (T 176).
Dr Buttfield agreed in cross-examination that his prescription of 1,200mg of MS Contin a day together with the injectable morphine sulphate was in excess of his authority to prescribe. His reason for the over prescription “was for break-through pain”.
The evidence of the accused is that she last took 500mg of MS Contin 24 hours before the accident. That was her customary dose on days when she was working (T 107). After work she was driving on a route with which she was familiar. She had slept well the previous day before starting nightshift and was not tired. Her evidence about her trip home (T 109 7-13) and the collision (T 109 17) is set out above. I have also referred to the evidence of the accused that Dr Buttfield did not mention that MS Contin would impair her driving and that nobody had told her not to drive.
As to the effect of MS Contin during the six months prior to the collision, the accused denied side effects, drowsiness, difficulty in concentrating or any perceived impairment of her ability to react to things. She had never felt sleepy at the wheel on the way home from work (T 134-1).
The prosecution argued that a Proudman v Dayman defence was not available where impairment of driving was a consequence of ingestion of drugs, as opposed to sleep. Reliance was placed on the reasons of Vanstone J in R v Clarke[11]. In Jiminez the majority said that where in a “sleep” case an accused driver adduced material suggesting that she honestly believed on reasonable grounds that it was safe for her to drive, the onus of negativing the defence rests with the prosecution (see pages 170 lines 20 to 28).
[11] (2003) 87 SASR 203
As a matter of principle there is no reason why the defence of an honest and reasonable belief as to the fitness of the accused to drive should not be available where the unfitness is alleged to be a consequence of drug ingestion rather than sleepiness. The relevant criterion is an honest and reasonable belief in a state of facts namely the fitness of the accused to drive. I do not read the reasons of Vanstone J in Clarke as excluding the defence. Her Honour considered the defence (at page 214 paragraph 62 and following) and observed that there had been no attempt to raise the defence in Clarke (paragraph 63). In Clarke the evidentiary onus was not discharged.
I find that if the evidence of the accused was accepted in this case, in particular her evidence that no medical practitioner had advised her not to drive and she had a positive belief that it was safe for her to drive, the evidentiary onus would have been discharged. That is, if accepted, the evidence of the accused would establish that she had an honest and reasonable belief that on the occasion in question she was fit to drive her vehicle.
Once the evidentiary onus has been discharged by the accused, the onus rests with the prosecution to eliminate any reasonable possibility that the accused held such a belief. It is sufficient if the prosecution establish either that the accused had no such honest belief or that there were no reasonable grounds for that belief.
The criticisms of the driving of the accused are that she failed to take the bend, crossed the median strip, crossed into the lane for oncoming traffic, did not slow down swerve or take other evasive action and collided with an oncoming vehicle. Viewed objectively those matters would cause a reasonable person to categorise the driving of the accused as dangerous in that such driving was not an ordinary risk of the road.
The driving of the accused must be considered together with the level of morphine in her blood. Although the evidence as to the level of morphine in the reconstituted denatured blood is only an approximation, a concentration of about 0.3mg per kilogram was a very high level of morphine in the blood. The concentration of morphine in the blood of the accused is an objective fact.
I do not accept the evidence of the accused as to her ingestion of morphine on 10 and 11 March 2004. The level of morphine in her bloodstream is inconsistent with the consumption of only 500mg of morphine almost 24 hours before the collision and nothing thereafter. If the evidence of the accused that the last morphine she had consumed was 500mg of MS Contin about 24 hours before the blood sample was taken was correct, the level of morphine in her bloodstream at the time the sample was taken would have been insignificant. The high level of morphine in the bloodstream of the accused makes a lie of her evidence as to her consumption of morphine.
Defence counsel did not challenge the analysis of morphine in the blood of the accused of about 0.3mg per kilogram. He said that the importance of the level is simply to provide a foundation for the general propositions, namely that very high levels of morphine in the blood may appreciably affect a person’s ability to drive (T 284). He also argued that if the court can make a finding as to what the level ultimately was, the importance of the evidence is whether that level did cause an impairment on the manner of driving of the accused, and if so whether she ought to have appreciated it in the circumstances.
The presence of Valium and Serapax in the bloodstream of the accused on the day of the collision, even though in relatively small quantities, makes a lie of her evidence that she had not consumed those drugs for a couple of weeks. It is another reason to doubt her evidence as to her drug use.
I do not accept the evidence of the accused as to her morphine use on 10 and 11 March 2004. Accordingly, her evidence cannot form the basis for the honest and reasonable belief which is required to satisfy the evidentiary onus. Also Dr Buttfield ultimately contradicted the evidence of the accused about the advice she had received on the topic of driving whilst using morphine. On the evidence of Dr Buttfield she had been told of the dangers of driving associated with the use of morphine. I am satisfied that she was well aware of the dangers of driving associated with morphine use.
Because I am unable to accept the evidence of the accused as to her drug use and because Dr Buttfield has contradicted the evidence of the accused that no doctor had told her not to drive, I cannot accept that she has satisfied the evidentiary onus necessary to raise a Proudman v Dayman type defence. That is, I do not accept that she had an honest or reasonable belief in a state of facts which if true would have excused the manner of her driving.
Defence counsel submitted that if the Crown case was that the accused was intoxicated by morphine that she ought to have realised she was a danger on the road and there is no evidence that would support that scenario. Counsel also submitted that the Crown had not demonstrated beyond reasonable doubt that the accused ought to have appreciated that her faculties were impaired “as an objective reckoning of the circumstances”. Those submissions are inconsistent with the test which is described in Cornish. Additionally, I do not accept the evidence of the accused, but I do accept the totality of the evidence as to the effects of a concentration of about 0.3mg per litre of morphine on a person’s ability to drive.
As I have said, there is an inference that the accused was either asleep or not in control of her vehicle at the time her vehicle crossed the median strip and collided with the oncoming vehicle driven by the deceased. The evidence as to the manner of driving of the accused must be considered objectively together with the evidence of the level of morphine in the bloodstream of the accused. I have regard to the evidence of Professor White and Dr Buttfield as to the effects of morphine in a person’s blood.
The defence suggestion that the accused had suffered a micro sleep must be considered. A “micro sleep” is a theoretical possibility only. I accept that the accused did lose consciousness prior to the collision. If there was no other explanation for the fact that the accused was not aware of what had happened, an innocent “micro sleep” may be a defence. However, there is an explanation for drowsiness and sleep, namely the presence of morphine in the bloodstream of the accused. A morphine induced sleep was much more likely than an unexpected “micro sleep”. Apart from the fact that the accused cannot recall the events leading up to the collision, the evidence of the accused does not support the occurrence of a “micro sleep” for some innocent reason.
Defence counsel submitted that:
.... if she fell asleep, there is no objective circumstances revealed in the facts leading up to her driving, objectively speaking, that ought to have put her on notice that her driving was dangerous in the circumstances.
That submission is answered by the dicta of King CJ in Cornish and other authorities to which I have already referred.
Defence counsel also referred to the possibility that the accused has no memory of her driving by reason of amnesia caused by the accident. If she had suffered amnesia that may explain her inability to recall what happened, but could not by itself provide a defence to dangerous driving which preceded the amnesia. In any event, the evidence does not support the submission that the accused may have suffered amnesia.
Finally, defence counsel argued that if inattention was the cause of the driving, the prosecution has not proven that was anything more than a momentary lapse of attention which did not amount to driving in a manner dangerous to the public. Taken as a whole the evidence, in particular the evidence of the consumption of morphine, answers that submission. If the collision was caused by a momentary lapse, the accused should have had some recall of the preceding events.
Even though the accused may have developed a tolerance to morphine and was able to function perfectly normally, properly and capably as a nurse in the way outlined by her counsel, the evidence of Professor White establishes the likelihood of an impairment of the faculties associated with driving, even though she appeared normal to her colleagues at work.

Defence counsel submitted it would be:
Inappropriate to apply some sort of res ipsa reasoning to say that just because an accident happened, and because she was taking this medication at the time, that because there was an accident she must therefore have been departing from it [the medication regime] in some way just before the accident.
I accept the defence submission that there is no evidence that the accused was taking her medication in any way other than as prescribed. Of course the prescription and her usage are different things. While there is no direct evidence of a greater rate of consumption I must take into account the evidence of the level of morphine in the bloodstream of the accused after the accident. The concentration of morphine speaks for itself and gives rise to an inference that the accused had consumed more morphine than she has admitted in her evidence. There is an incongruity between the evidence of the accused that she did not use morphine prior to working or driving and the concentration of morphine shown in the blood analysis taken after the collision.
There is cogent evidence that the existence of morphine in the blood of the accused, as demonstrated by the blood sample, would have impaired her capacity to drive and would have affected her ability to judge speed, distance, to appreciate features of the road and to control her vehicle. The level of morphine in the bloodstream of the accused would have impaired her ability to function normally, to think and to concentrate. One effect of morphine is tiredness or sedation even though the person may appear to be relatively normal.
The manner of the driving of the accused is an objective fact. So is the level of morphine in her bloodstream. The expert evidence as to the effects of morphine upon a person’s ability to drive is clear.
In Pfeiffer v R[12], King CJ said “to drive a motor vehicle on a road so affected by alcohol as to be incapable of exercising effective control of the vehicle is in itself driving in a manner dangerous to the public”. Driving whilst affected by morphine must fall into the same category.
[12] (1988) 48 SASR 522
The evidence does not establish that the accused suffered a seizure. There is no evidence that the accused fell asleep for some innocent and unexpected reason. On her own evidence she did not feel sleepy and had no reason to feel sleepy.
Defence counsel submitted that the driving of the accused should be looked at objectively. I accept that submission, but when considered objectively the unavoidable inference is that the inability of the accused to control her vehicle was caused by drowsiness or sleep as a consequence of the presence of morphine in her blood.
The morphine concentration in the blood of the accused establishes that the ingestion of morphine by the accused was far in excess of that deposed to by the accused in her evidence. If the evidence of the accused was correct, most of the morphine which she had taken about 24 hours previously, would have been removed from her bloodstream at the time when the sample was taken. Instead her blood morphine level was about 0.3mg per litre of blood, a very high level. That level is inconsistent with the evidence of the accused. It is a sufficiently high level to cause side effects which explain the collision. Looked at objectively, the manner of driving and the concentration of morphine would cause a reasonable person to find that the accused drove in a manner which was dangerous to the public.
In all the circumstances, I find that all of the elements of the offence have been established beyond reasonable doubt.
The verdict of the court is that the accused is guilty of the offence of causing death by dangerous driving contrary to section 19A(1) of the Criminal Law Consolidation Act 1935.