R v Grant

[2021] NSWDC 643

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Grant [2021] NSWDC 643

Hearing dates:

1, 2, 4, 5, 8 and 22 November 2021

Date of orders:

26 November 2021

Decision date:

26 November 2021

Jurisdiction:

Criminal

Before:

Hatzistergos DCJ

Decision:

1. Guilty in respect of Count 1

2. Guilty in respect of Count 2

3. Guilty in respect of Count 3

Catchwords:

CRIMINAL LAW –– Driving offences – Dangerous driving occasioning death – Failing to stop and assist – Police pursuit – Where the Accused was under the influence of intoxication

CRIMINAL LAW –– Judge alone trial – Where the Accused relies on an involuntary act – Where the Accused relies on previous medical conditions rendering his ability to have been cognitively aware of his offending conduct – Where the main defence relied upon was somnambulism – Where the hypotheses relied upon by the Defence was not supported by the expert evidence – Where the offences have been proven beyond reasonable doubt

Legislation Cited:

Crimes Act 1900 (NSW) ss 51B, 52A, 52AB

Criminal Procedure Act 1986 (NSW) ss 133,

Evidence Act 1995 (NSW) s 136

Cases Cited:

Filippou v The Queen (2015) 256 CLR 47

Fleming v R (1998) 197 CLR 250

The Queen v Falconer (1990) 171 CLR 30

Yousef v R (1990) 50 A Crim R 1

Category:

Principal judgment

Parties:

Regina (the Crown)
Kenneth Wayne Grant (the Accused)

Representation:

Counsel:
Mr L Carr SC (the Crown)
Mr P Boulten SC (the Accused)

Solicitors:
Director of Public Prosecutions (the Crown)
Nicholas Dan Solicitor (the Accused)

File Number(s):

2019/386436; 2019/377991

Judgment

1. The Accused was arraigned before me on 1 November 2021 on 3 counts. To all counts, he pleaded that he was ‘not guilty.’ The specific counts allege that the Accused:

1. on 30 November 2019, at Bolwarra in the State of New South Wales, did drive a motor vehicle namely a gold coloured Mazda BT-50 [registration redacted] in a manner dangerous to another person or persons, whereby the vehicle was involved in an impact as a result of which the death of Tony Greenfield was occasioned;

Contrary to S 52A(1)(c) Crimes Act 1900

AND FURTHER

2. on 30 November 2019, at Bolwarra in the State of New South Wales, did drive a motor vehicle namely a gold coloured Mazda BT-50 [registration redacted] when it was involved in an impact occasioning the death of Tony Greenfield, and the said Kenneth Grant knew or ought reasonably to have known that the vehicle had been involved in an impact occasioning the death of another person, and the said Kenneth Grant failed to stop and give any assistance that may have been necessary and that was in his power to give;

Contrary to S 52AB(1) Crimes Act 1900

AND FURTHER

3. on 30 November 2019, in Lorn and Maitland in the State of New South Wales, did drive a motor vehicle namely a gold coloured Mazda BT-50 [registration redacted], and the said Kenneth Grant knew or ought reasonably to have known or had reasonable grounds to suspect that police officers were in pursuit of the vehicle and that he was required to stop the vehicle, and he did not stop the vehicle and then drove the vehicle in a manner dangerous to others;

Contrary to s 51B(1) Crimes Act 1900.

Judge Alone Trial

2. As this is a judge alone trial, s 133(2) of the Criminal Procedure Act 1986 (NSW) (the 1986 Act) requires me to state the principles of law which ought to be applied as well as the findings of fact which are to be made. Section 133(3) of the 1986 Act states that where the law requires a warning to be given to a jury, I must take the warning into account in dealing with the matter.

3. I approach these statutory obligations in accordance with the statements made in both Fleming v R (1998) 197 CLR 250 and Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [6] and [52] (French CJ, Bell, Keane and Nettle JJ with whom Gageler J agreed).

Directions

Presumption of innocence

4. The Accused is entitled to the presumption of innocence. The Accused is not required to prove his innocence. He is presumed to be innocent of the crimes charged unless the evidence led in the trial satisfies me to the appropriate standard that he is guilty of the crimes.

Onus and standard of proof

5. The Crown bears the onus of proof, from the beginning to the end of the trial, to establish the guilt of the Accused. The Accused bears no onus and is not required to prove anything in the trial subject to what I will mention later; (see [82]).

6. The standard of proof is beyond reasonable doubt. It is not enough for the Crown to show suspicion of guilt or to demonstrate that the Accused is probably guilty.

7. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offences. However, the Crown is not required to prove the truth and reliability of every disputed fact nor is it required to answer every question that might be posed concerning the evidence in the case.

Election not to give evidence

8. The Accused himself has not given evidence before me in the trial. Although, he has given an account that is in evidence via two Electronic Record of Interview with Suspected Person (ERISP) and he has also further called evidence in the trial.

9. The Accused bears no onus of proof in respect of any fact that is in dispute. Although an Accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so. Therefore, it follows that the Accused is entitled to say nothing and make the Crown prove his guilt to the high standard required, that is, proof beyond reasonable doubt.

10. As a matter of law, the Accused’s decision not to give evidence cannot be used against him in any way at all during the course of deliberations. That decision cannot be used as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the Accused decided not to give evidence before me. I cannot use that fact to fill any gaps that it might be thought to exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.

11. I must not speculate about what might have been said in evidence if the Accused had given evidence or what might have been said by another person if that person had been called by the Accused as a witness in the trial.

Dispassionate approach

12. It is necessary to consider the evidence in the trial impartially and dispassionately. There is much in this case that may invoke sympathy or emotion. However, sympathy or emotion must not affect my judgment.

Use of AVL

13. Witnesses in this case were: Dr Anup Desai (Consultant Physician Respiratory and Sleep Medicine), Dr Judith Perl (Clinical Forensic Pharmacologist), Dr David Rosen (Neurologist), Senior Constable Robert Jolliffe (SC), Mr Troy Grant, Associate Professor (A/P) Tuly Rosenfeld (Consultant Geriatrician and Physician) and Dr John O’Neill (Consultant Neurologist). They all gave evidence by way of CCTV/AVL. The law enables evidence to be given by such means. I am not to draw any inference against the Accused or give the evidence any greater or lesser weight simply because it is given in this manner. I will assess the evidence in the same way as I would assess the evidence of any other witness in the case.

Inferences

14. Before I proceed to consider the evidence, I note that as this is a criminal trial. Therefore, I must be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. In particular, I must not draw any inference from the direct evidence unless it is a rational inference in the circumstances.

EVIDENCE

Background

15. For many years a Christmas party had been hosted by Lynn and Bill Robson on their farm which was located at Flat Road, Bolwarra Heights. The 2019 function was held on Saturday 30 November 2019. The Accused was a friend of the Robsons and he attended the function. There were approximately 80 guests in total. Tony Greenfield, the deceased, and his wife Nerida were also friends of the Robsons and were also guests at the party. Both the Accused and the Greenfields had been to a number of these functions, but they'd only met on one or two prior occasions.

16. At the party, there was alcohol, seafood, and a sit down dinner was served around about 9pm on the evening. Later, there were sweets available. The Accused had spoken to a number of people. The evidence indicates that he drove to the function, in his Mazda BT-50 Dual Cab Ute arriving 5.30 to 6pm.

17. The evidence indicates that the Accused had intended to stay that night at the property but that did not ultimately occur. There was evidence that some people would bring their caravan or tent or will stay on the property with bedding inside and some would stay in nearby accommodation.

18. The Accused in this matter spoke to various persons such as: police, medical practitioners and the like in regard to his consumption of alcohol on the evening in question. In summary, he recounted having three schooners of full strength beer and three or four glasses of red wine. He recounted that his first drink occurred in the vicinity of 5.30 to 6pm and his last drink at around 11pm on the night in question.

19. During the evening, some of the guests made observations of the state of sobriety of the Accused.

William Robson

20. William Robson was the co-host of the party. He stated that throughout the party he recalled only speaking to the Accused once about half way through the evening. He could not remember what it was about and did not even know that he had left. He stated that when he saw the Accused he seemed alright and didn’t seem drunk. He described there being so many people and he was trying to get around and speak to everyone and his attention was not on the Accused and what he was doing. Mr Robson stated that the Accused had been coming to the Christmas party for the whole time they had known him which was about 10 years. He described that the Accused would usually sleep in the spare room in the house and brings his sleep apnoea machine with him. He stated that he has an open invitation to sleep in the house and it is not a case where he has to come and ask. ^[1]

    1. Exhibit D, tab 3 – Police statement of Bill Robson dated 4 December 2019 and 8 May 2020.

Lynn Robson

21. Ms Lynn Robson (also one of the party hosts) stated that she didn’t remember the Accused arrive at the party however she saw him among the crowd of guests on several occasions. She recalled exchanging a few words during the party and described that the Accused seemed to be a little bit intoxicated when he came inside for dessert. Ms Lynn Robson recalled seeing the Accused seated in a chair in the downstairs area which had been set up for the party. He was observed to be drinking red wine and saw him “nodding off in the chair” and “nodding off to sleep while sitting in the chair.” She believed that she saw him nodding off in the chair between 10.45 and 11pm. A short time later, Ms Lynn Robson stated that she went outside to attend to something and she never saw the Accused after that. At about 11.30pm, Ms Lynn Robson went looking for the Accused to make sure he was going to stay the night and to tell him that he was to sleep on the lounge but could not find him or his car anywhere. She was not entirely sure if she had told the Accused during the night that he could sleep on the lounge but thought that she did. Ms Lynn Robson stated that there was a general understanding with the Accused that when he came to the home and he had a few drinks he was always able to stay over. ^[2]

    2. Exhibit D, tab 2 – Police Statements of Lynn Robson dated 4 December 2019 and 6 May 2020.

Adam Chambers

22. Mr Adam Chambers who had previously known the Accused stated that he saw him throughout the night but was busy with the BBQ and “other things.” He did however recall a conversation towards the end of the night at around 10 to 11pm as the party was winding down. He gave evidence that in a conversation in the back shed with the Accused he heard Bill Robson stating “We’ll grab you a swag and set your bag up in the office downstairs.” To this, the Accused replied “I’ll go to the toilet and grab my sleep machine out of my car.” The Accused was then seen to have walked off towards the toilet area. Mr Chambers said that he didn’t give any indication other than he was going to bed.

23. Mr Chambers stated that when he was standing talking to the Accused, the Accused was “well and truly gone.” He described him as “ready for bed” and “drinking red wine and beer all night.” The Accused was described as “staggering all over the place and clearly intoxicated,” “slurring his words a little bit” and “incoherent.” Mr Chambers described Mr Robson getting the Accused ready for bed. After the Accused walked off in the direction of the toilet he did not see or speak with him again nor see him leave the party. ^[3]

    3. Exhibit D, tab 4 – Police Statement of Adam Chambers dated 29 August 2021 at [8]-[12].

Kim Ziesemer

24. Ms Kim Ziesemer was another attendee at the party and had known the Accused for about 5 years previously. She stated that the Accused was one of the first persons she spoke to after arriving at the party between 6.30 and 7pm. She stated that she had the impression very early that the Accused had certainly had a few drinks and that he was drunk. She stated that she was surprised as it was so early in the night. She didn’t have a lot to do with the Accused during the evening and left reasonably early. ^[4]

Debbie-Anne Robsson

4. Exhibit D, tab 5 – Police Statement of Kim Ziesemer dated 21 October 2021 at [4]-[6].

25. Ms Debbie-Anne Robson was the ex-wife of Bill Robson and another attendee at the party. She had known the Accused for around 10 to 15 years. Ms Robson stated that she observed the Accused throughout the evening of 30 November 2019 as she was passing out food to everyone. She observed that he seemed fine but always had a beer in his hand. At around 11pm she observed the Accused in the laundry and came to use the bathroom in the laundry. The Accused said to her “toilet” and she proceeded to open it. She observed him to be unsteady on his feet. Later, Ms Debbie-Anne Robson stated that she walked into the lounge room and observed the Accused pulling up his pants. She heard “the girls say” that the Accused had just lost his pants and nearly fallen through the glass doors. That was the last time she saw the Accused as he went through the doors back out to the party. Ms Debbie-Anne Robson stated that on the occasion she last saw the Accused at the party she would say that “he was extremely intoxicated. ^[5]

    5. Exhibit D, tab 6 – Police Statement of Debbie-Anne Robson dated 17 October 2021 at [12].

Nerida Greenfield

26. Tony and Nerida Greenfield also attended the party at Bolwarra having travelled from Sydney and booked to stay at “Maddie’s” which is a bed and breakfast facility on Paterson Road. They arrived at Maddie’s at about 5pm before heading off to Robson’s turf farm. Ms Nerida Greenfield stated that she saw the Accused at the party but did not pay much notice to him. At around11.10pm, Ms Greenfield stated that she and her husband decided to leave and proceeded to walk along Flat Road towards “Maddie’s.” The road was described as having no footpath and just a single line of traffic in each direction and a bike lane with a grass verge on both sides. Ms Greenfield stated that they walked on the edge of the grass verge and the bike lane in the same direction as the traffic was going. They were approaching the roundabout with Paterson Road and there was street lighting near the intersection. Ms Greenfield stated that her husband was a couple of steps behind her. Suddenly she heard a noise behind her and “a thing” went past her on the left and “another thing” went past her on her right. She saw an object tumbling across the grass about twenty metres ahead on the grass side of the road and soon realised it was her husband. Ms Greenfield saw an Esky and some shoes being carried by her husband being scattered around him. She also noticed a vehicle on her right driving past swerving a bit as it past her before turning left at the roundabout and continuing along Paterson Road. ^[6]

    6. Exhibit D, tab 1 – Police Statement of Nerida Greenfield dated 04 December 2019 at [21].

27. Police and Ambulance were called. The incident detail report recorded that the ambulance call was picked up at 23:24:47. ^[7] A statement of the attending police by Sergeant (Sgt) Julianne Randall was tendered. ^[8]

    7. Exhibit D, tab 11 – Incident Detail Report.

    8. Exhibit D, tab 10 – Police Statement of Sergeant Julianne Randall dated 07 December 2019.

28. Tony Greenfield was taken to John Hunter Hospital but succumbed to his injuries shortly after arrival. ^[9]

    9. Exhibit D, tab 13 – Autopsy Report for the Coroner dated 11 February 2021.

29. It was not in issue that it was the Accused who was in the vehicle that struck the deceased. A number of witnesses made observations of the vehicle’s path following the collision.

Jacqueline Belsham

30. Ms Jacqueline Belsham was a taxi driver who recalled that on the night of the accident on Flat Road, she was driving down Paterson Road just past Flat Road towards Maitland. Whilst travelling down Paterson Road she could see in her rear view mirror a car coming up behind her very quickly and could see its headlights. When she was about 100 to 200 metres past the Flat Road turnoff, the car came behind her moved to the right and overtook her on the wrong side of the road as she was going around a left hand bend on Paterson Road. Ms Belsham stated she was “pretty sure” the road had a single unbroken line down the middle to separate each direction of traffic. As the car drove past her and came back to the correct side of the road, Ms Belsham stated that she could see the car had some panel damage on the front left hand side and had a blown tyre on the front driver’s side. She didn’t know what kind of car it was but it was a dark coloured four wheel drive with four doors and a boot part. Ms Belsham stated that she backed off her speed to allow the car to get around her as the driver was going above the speed limit. As the vehicle turned the bend she observed that he was all the way on the other side of the road and there was nowhere for him to go if a car was coming in the other direction. She described the vehicle as being driven erratically while in front of her, swerving from side to side. It made a left hand turn into Sharkies Lane and it appeared to her that he almost took out a fence. That was the last time she saw the vehicle. ^[10]

    10. Exhibit D, tab 7 – Police Statement of Jacqueline Belsham dated 28 January 2020.

Lisa Ninness

31. Ms Lisa Ninness gave evidence that at about 11.30pm, she was travelling towards Maitland along Paterson Road and travelled through the suburb of Lorn and came up behind a light coloured Ute with a canopy on the tray. It was leaning to the right and travelling about 25km per hour. She immediately thought it had flat tyres. She then saw a police car come from the opposite direction at the same time proceeding to execute a U-turn before activating its lights. She pulled to the left and the police car went past her and activated their sirens on as well. Her observations thereafter largely accorded with the police account that I will come to and need not be repeated. ^[11]

    11. Exhibit D, tab 8 – Police Statement of Lisa Ninness dated 7 December 2018.

SC Hofman and DSC Bereza

32. On Saturday 30 November 2019, SC Dean Hofman was working in the Maitland Area with Detective Senior Constable (DSC) Josene Bereza and they were both driving in a police motor vehicle in a north-easterly direction along Belmore Road, Lorn. SC Hofman gave evidence of seeing two motor vehicles travelling in a south west direction and noticed that the front vehicle described as a dark coloured utility had its high beams activated. He saw that vehicle swerving about from the fog line to the left and crossing the white painted unbroken lane lines at the centre of the roadway and back again and whilst driving towards each other, the vehicle continued to drive in this manner. SC Hofman described his vehicle as being 100 metres apart but could see that the vehicle was lower on its offside than its nearside. When 25 metres apart, he could see the front offside tyre was deflated with rubber beginning to shred from its wheel rim. As they were about to pass each other he saw the front number plate. As they passed each other, he heard a loud bang and saw the rear offside wheel explode with debris coming from around the wheel rim. He then conducted a U-turn near Allan Street and began travelling generally south west to stop the driver of the dark coloured utility. He then activated his warning lights and sirens which caused the in car video recording equipment to start recording.

32. The vehicle in between described as a Toyota Prado then gave way and merged to the left and SC Hofman placed his vehicle behind the dark coloured utility which he noted was a Mazda BT 50. Warning lights and siren were activated indicating for the driver of the vehicle to pull over to the left and stop. It did not do so and continued driving south west along Belmore Road onto the Belmore Bridge. SC Hofman described that the vehicle was travelling at a speed that was gradually slowing from about 25km per hour to about 15km. While negotiating a slight right hand bend, SC Hofman stated the vehicle drove over the top of the white painted parallel dividing lines separating the opposing lanes. DSC Bereza described it as mounting the side of the median strip. Along Belmore Bridge the right indicator of the vehicle began flashing. The lights at the Belmore Bridge intersection with High Street were phased red. The dark coloured utility merged into the right turning lane and DSC Bereza alighted from the police vehicle and ran towards the driver’s door. SC Hofman described that he then exited the police vehicle and got closer to the vehicle. When the traffic lights phased red to green the vehicle began to slowly move forward again and DSC Bereza managed to open the driver’s door and yelled out “Stop, Stop”. The driver then reached out and pulled the door shut and SC Hofman heard the driver saying something that ended in “… off”. DSC Bereza stated that she heard something but was not sure exactly what was said.

33. SC Hofman yelled out “Stop driving” and he described striking the driver’s side window with a large torch but the torch bounced off the window and fell onto the roadway. The vehicle then turned right onto High Street and was pursued by police along High Street but prior to passing Sempill Street the vehicle crossed onto and drove over a painted traffic island at the start of the right turning lane. At that point, an emergency services vehicle with red and blue lights flashing and siren sounding passed in the opposite direction and the pursued vehicle swerved to the left just prior to the other emergency vehicle passing. SC Hofman described placing the police vehicle behind the dark coloured utility with the warning lights and siren activated. A short distance after passing through the roundabout intersection of High Street and Anlaby Street the pursued vehicle activated a left hand indicator for a short time before being cancelled. The vehicle then crossed the driveway of the Genesis Fitness building and swerved off the roadway and travelled across the driveway at slow speed before it eventually came to a stop with smoke coming from the rear offside wheel/tyre. Another police vehicle driven by Sgt David Collier parked on the right hand side of SC Hofman who was behind the pursued vehicle. SC Hofman pressed his body worn camera and mistakenly believed he had activated it. The Accused was in the driver’s seat and was instructed to get out of the car but did not do so. Both officers recall him saying words to the effect of “My son is Troy Grant the Police Minister and I’m pissed.” Eventually, both SC Hofman and DSC Bereza were able to remove the Accused from the vehicle, place him on the ground with his arms behind his back, handcuffed him and placed him under arrest for not stopping. At that point, SC Hofman observed his body cam was in a standby position and his camera was not recording so he then pressed the button to start the recording.

34. During the course of the recording, the Accused was instructed to breathe into an alcolizer and after doing so recorded a reading of 0.194 grams of alcohol in 210 litres of breath. ^[12] The Accused then had a conversation with Sgt Collier which he then stated that he had been at a party on Flat Road. He was asked what he had hit and he said “nothing”. ^[13] He informed Sgt Collier that his name was Ken Grant and that his son was a police minister. The Accused was then assisted to stand up, walked to the back of his vehicle, assisted in securing his pants around his waist and then taken to a seat nearby. DSC Bereza and SC Hofman spoke to the Accused. He was cautioned by DSC Bereza and advised that he was under arrest for the purposes of a breath analysis, and in relation to a motor vehicle accident. SC Hofman added reference to being under arrest for leaving the scene of a collision. The Accused questioned the latter stating “I don’t understand that, but anyhow”. The Accused was further informed by SC Hofman that he was being recorded by audio and video by the police car and the body worn cameras. In the course of the conversation that followed with both officers the Accused again confirmed his identity and that he had been at a Christmas party at Flat Road at the property of Bill Robson. The Accused was asked why he didn’t stop when the police car was behind him with lights and sirens. He stated that he only saw them on the bridge. When asked why he continued driving, he responded “Oh, I don’t, I really don’t know. I did, I didn’t see you guys un”. Later he stated “Well, I don’t know, the lights were, green. I went, for it. You know?” When asked why he didn’t think to stop when the police were behind him and telling him to stop, he responded “I didn’t see you until then”.

    12. Exhibit D – tab 15, Statement of Police by Senior Constable Dean Hofman dated 5 December 2019 at [32].

    13. Exhibit D – tab 15, Statement of Police by Senior Constable Dean Hofman dated 5 December 2019 at [32].

35. The Accused was asked by DSC Bereza as to the time that he left the party and where he had travelled from, he responded “from Flat Road.” He was asked by DSC Bereza whether anything happened on Flat Road and the Accused responded “No”. He was then asked how he got the busted tyre at the front and he responded that he didn’t know. When asked about his drinking, the Accused stated that he had three beers, being Tooheys Old and three red wines after it. ^[14]

    14. Exhibit D – tab 15, Statement of Police by Senior Constable Dean Hofman dated 5 December 2019 at [36].

36. DSC Bereza continued to speak to the Accused and the conversation recorded as follows:

Detective Senior Constable BEREZA said, “And when we, when we got you out of the car here, you said that you were pissed.”

Kent GRANT said, “what?”

Detective Senior Constable BEREZA said, “When we pulled you out of the car here, you said, yeah I’m pissed.”

Ken Grant said, “Oh yeah, I may as well admit it. Yeah.”

Detective Senior Constable BEREZA said, “Yeah. You’re over the limit?”

Ken GRANT said, “Yeah.”

Detective Senior Constable BEREZA said, “Yep, why’d you drive then?”

Ken GRANT said, “Well, its, its stupid me right hey? Because…”

Detective Senior Constable BEREZA said, “Do you understand what I’m asking, do you understand the questions I’m asking you at the moment?”

Ken GRANT said, “Yeah.”^[15]

Detective Senior Constable BEREZA then proceeded to caution the Accused

(emphasis added)

15. Exhibit D – tab 15, Statement of Police by Senior Constable Dean Hofman dated 5 December 2019 at [37]. There is discrepancy of the transcription of this conversation between Senior Constable Dean Hofman’s Statement and the body worn transcript particularly at page 16. Upon listening to the body cam footage, the accurate reference to the conversation is to be found in Senior Constable Hofman’s Statement.

38. Thereafter, the caged vehicle arrived and the Accused was placed in it and later transported to Maitland Police Station. Whilst seated in the caged vehicle, SC Hofman spoke to the Accused. After cautioning him that the conversation was recorded, the conversation ensued as follows:

SC Hofman said, “Yep, Um so, you said you had three Tooheys News, earlier tonight?”

Kenneth GRANT said, “Yep.”

SC Hofman said, “Yep, how many red wines did you have after that?”

Kenneth GRANT said, “Ah, can’t think, two.”

SC Hofman said, “Two, big ones or little ones?”

Kenneth GRANT said, “Nah, no.”

SC Hofman said, “Two bottles or two glasses?”

Kenneth GRANT said, “Little, little, little ones.”

SC Hofman said, “Ah okay.”

Kenneth GRANT said, “I thought I was probably right.”

SC Hofman said, “Yep.”

Kenneth GRANT said, “Because, ah, its my mistake because.”

SC Hofman said, “Yep.”

Kenneth GRANT said, “I’ve always had, when I’m driving I have light.”

SC Hofman said, “Yep.”

Kenneth GRANT said, “A light beer. But there was only a Tooheys New or Tooheys Old.”

I SC Hofman said, “Yep.”

Kenneth GRANT said, “Because, its like a, I can’t, drink more than two or three beers.”

SC Hofman said, “Yep. Why can’t you drink more than two or three?”

Kenneth GRANT said, “I just don’t, can’t do it any more, you like, like…”

SC Hofman said, “Okay.”

Kenneth GRANT said, “It is old age.”

SC Hofman said, “Yep.”

Kenneth GRANT said something.

SC Hofman said, “If I’m being honest ken it looks like you’ve had a lot more than that.”

Kenneth GRANT said, “I had, two, two red wines, three red wines.”

SC Hofman said, “Three red wines.”

Kenneth GRANT said, “Yeah.”

SC Hofman said, “And three beers.”

Kenneth GRANT said, “Two beers.”

SC Hofman said, “Two beers.”

Kenneth GRANT said, “Three red wines.”

SC Hofman said, “Okay.” “it looks to me that you’re pretty well affected by alcohol.”

Kenneth GRANT said, “Oh, I more, I probably am. I don’t know.”

SC Hofman said, “Okay.”

Kenneth GRANT said, “I, I don’t drink much you know.”

SC Hofman said, “Okay.” “What time was your first drink today do you reckon?”

Kenneth GRANT said, “I went there about, oh, about six o’clock.”

SC Hofman said. “About six o’clock?”

Kenneth GRANT said, “Yeah.”

SC Hofman said, “Yeah, what time do you think your last drink was?”

Kenneth GRANT said, “Ah, I got no idea. Ah, what’re you talking about beer?”

SC Hofman said, “Yeah.”

Kenneth GRANT said, “I kinda had, a couple’a beers. Then I had prawns and oysters, and…”

SC Hofman said, “Yep.”

Kenneth GRANT said, “That was then end of my, as far as…”

SC Hofman said, “Yep.”

Kenneth GRANT said something slurred that could not be understood. Then he said, “Then I had a couple of wines after that.”

SC Hofman said, “Okay. And um, when was your last drink?”

Kenneth GRANT said, “Ah, stuffed if I know, I didn’t even look.”

SC Hofman said, “We’re um, we’re midnight right now.”

Kenneth GRANT said, “Nah, no, long while ago.”

SC Hofman said, “Yeah, how long before ya drove down, Paterson Road?”

Kenneth GRANT said, “Ah, probably half an hour.”

SC Hofman said, “Half an hour before ya, you left the party?”

Kenneth GRANT said, “Yeah.”^[16]

(emphasis added)

16. Exhibit D – tab 15, Statement of Police by Senior Constable Dean Hofman dated 5 December 2019 at [42]. There is discrepancy of the transcription of this conversation between Senior Constable Dean Hofman’s Statement and the body worn transcript particularly at page 33 and 34. Upon listening to the body cam footage, it is clear that the appropriate and accurate reference to the conversation is to be found in Senior Constable Hofman’s Statement.

39. SC Hofman thereafter stayed with the Accused’s vehicle until crash investigation police arrived together with DSC Bereza. At 5:30am, they were relieved by Senior Sgt Anthony Grace and returned to Maitland Police Station. SC Hofman stated that in his opinion the Accused drove his vehicle dangerous to other road users and pedestrians and the damage to the offside tyres caused further danger as it impacted his ability to steer and drive. He stated that he observed damage to the front nearside of the Accused’s vehicle including a smashed headlight and panel damage. There was some damage below the bottom nearside corner of the windshield.

40. In a subsequent statement dated 4 May 2020, SC Hofman stated that when the Accused was first sighted stationary in the right turning lane at the intersection of Belmore Road and High Street and up until the time that the Accused was taken out of the vehicle, he had an opportunity to make observations of his head and upper body and saw no injuries on his head or right arm. He opined that the cuts and abrasions to the Accused’s legs and left arm near the elbow occurred when he was placed in a prone position on the ground. ^[17] In a further statement dated 6 September 2021, SC Hofman stated that whilst in custody, the Accused was not found to have any alcohol receptacles on his person and nor did he see any alcohol receptacles inside the motor vehicle. ^[18]

    17. Exhibit D – tab 15, Statement of Police by Senior Constable Dean Hofman dated 4 May 2020 at [5]-[7].

    18. Exhibit D – tab 15, Statement of Police by Senior Constable Dean Hofman dated 6 September 2021 at [5].

41. DSC Bereza’s account of 9 January 2020 supported that of SC Hofman. ^[19] In a subsequent statement dated 7 May 2020, DSC Bereza stated the Accused’s cuts on his legs, arm and head were sustained during his arrest. ^[20]

    19. Exhibit D – tab 16, Statement of Police by Detective Senior Constable Josene Bereza dated 9 January 2020.

    20. Exhibit D – tab 16, Statement of Police by Detective Senior Constable Josene Bereza dated 7 May 2020 at [6].

Breath Analysis

42. Senior Sgt Anthony Grace gave evidence that the Accused was taken to a room at the Maitland Police Station where he was subjected to a breath analysis. In lead up to that, the Accused confirmed that he had been at a friend’s house in Bolwarra, had his first drink at 5:30pm and his last drink at 11:00pm. When the Accused was asked how many drinks he had, he said “probably 2 Schooners of Toohey old and 2 glasses of red wine” eating prawns, oysters and other finger food and a steak and sausage. On the night of the accident, he stated that he had his last drink around 11:00pm and had not consumed alcohol since the party.

43. Analysis was started on 1 December 2019 and completed at 00:39:58 and it revealed that the Accused had 0.108 grams of alcohol per 210 litres of breath. The Accused was advised of that range and he responded “Mid-Range, Fuck”. He declined the services of a doctor for a blood sample. During the test, the Accused asked whether anything could be done for him indicating towards the Breath Analysis Instrument. He was informed “the reading is the reading. It’s not like in your day where the operator calibrated the machine. And even if it could be changed, we went through this thing called a Royal Commission back in the 90’s. That sort of thing doesn’t happen anymore.”

44. The Accused was thereafter told that he was going to be taken to the hospital because it was believed he has been involved in a fatal motor vehicle collision. The Accused denied any knowledge of this.

45. The Accused was later escorted by both Sgts Grace and Collier to the Maitland Hospital for blood and urine samples. The Accused was said not to have consumed any liquids during the period up until the time he was taken to Maitland Police Station and before his blood and urine samples were taken. ^[21]

    21. Exhibit D – tab 18, Statement of Police by Senior Sergeant Anthony Grace dated 31 January 2020.

Blood Urine Analysis

46. Blood and urine samples were taken at 01:33 on 1 December 2019. ^[22] The Accused’s blood alcohol reading was found at 0.194 g/100mL. In a supplementary certificate, Fluoxetine (also known and Lovan) was detected at less than 0.05 mg/L and Valpronic acid was detected (also known as Epilum). ^[23]

    22. Exhibit D – tab 31, Testing Certificate.

    23. Exhibit D – tab 31, Analyst Certificate by Wa Shun Lo.

Crash Investigation

47. Leading SC Sally-Anne Piccles from the Crash Investigation Unit carried out an inspection of the accident scene and provided a statement dated 14 January 2021. ^[24]

    24. Exhibit D – tab 20, Statement of Police by Leading Senior Constable Sally-Anne Piccles dated 14 January 2021.

48. SC Joliffe from the Newcastle Crash Investigation Unit also carried out an inspection of the scene and the Accused’s vehicle. Swabs taken from the Accused’s vehicle found to have the DNA profile of the deceased. ^[25] Items of the Accused’s clothing were also found to have sample of windscreen glass of the Accused’s vehicle with moderate support. ^[26]

    25. Exhibit D – tab 9, Statement of Police by Senior Constable Robert Joliffe dated 10 December 2019 to 1 February 2020 at [45].

    26. Exhibit D – tab 9, Statement of Police by Senior Constable Robert Joliffe dated 10 December 2019 to 1 February 2020 at [46].

49. Based on the analysis of information of his investigation, SC Joliffe formed the opinion that the collision occurred as a result of the Accused being under the influence of alcohol allowing his vehicle to cross the unbroken white edge line on Flat Road, Bolwarra and collided with the deceased resulting in his death. This was based on observations of the road way, and the surrounds of the collision scene, the road way evidence was located and recorded at the collision scene, examination of the vehicle and the damage occasioned to the vehicle and persons in the collision as well as information obtaining witness statements. He stated that there was no evidence of mechanical fault or anything on the roadway that could have contributed to the accident. This was supported by an examination of the vehicle which was conducted on 19 December 2019 by Senior Constable Ben Wilson of the Engineering Investigation Section of NSW Police who found no mechanical defects or faults on the vehicle which may have been a contributing factor toward the collision. ^[27]

    27. Exhibit D, tab 21 – Vehicle Examination Expert Certificate by Senior Constable Ben Wilson dated 30 December 2019 at [10].

50. SC Joliffe found no evidence of any sudden or emergency steering input. There was no evidence of any braking prior to the collision but there is evidence of emergency braking on the raised concrete median strip after impact with the deceased. ^[28] SC Joliffe stated that there was a sufficient visibility that was provided by overhead street lighting and there was no evidence suggestive of sudden medical episode or fatigue as contributing factors.

    28. Exhibit D – tab 9, Statement of Police by Senior Constable Robert Joliffe dated 10 December 2019 to 1 February 2020 at [83]-[84].

51. SC Joliffe opined that the Accused travelled in a westerly direction on Flat Road at an unknown speed, left the marked west-bound lane and entered the bike lane/shoulder on the southern side of Flat Road and collided with the deceased who was walking in a westerly direction. After colliding with him, the Accused left the scene and made attempts to overtake the taxi driven by Ms Belsham on the incorrect side of Paterson Road and made a left hand turn from Paterson Road down Sharkies Lane before driving his vehicle back onto Belmore Road where he was intercepted by the Highway Patrol. Despite coming to a stop at the traffic lights, SC Joliffe stated that the Accused continued to evade police by eventually stopping his vehicle at the “Veteran’s Flat Bridge” where he was arrested and made references to his son being the former Police Minister. ^[29]

    29. Exhibit D – tab 9, Statement of Police by Senior Constable Robert Joliffe dated 10 December 2019 to 1 February 2020 at [88]-[90]

52. Dr Anthony Plummer (the General Practitioner of the Accused) provided a statement on 24 September 2020 which he stated on 2 December 2019, the Accused came and saw him at his practice and disclosed that he had been involved in a fatal accident and was amnesic to the event before, during and after. He described having no memory recall after 9:30pm and did not recall getting into his motor vehicle. He stated that the Accused was concerned as to why he was amnesic and he referred him to Dr John O’Neill (neurologist) and raised the possibility that he may have had Transient Global Amnesia (TGA). ^[30]

    30. Exhibit D – tab 32, Statement of a Witness by Anthony Plummer dated 24 September 2020.

ERISP Interviews

1 December 2019

53. The Accused was subjected to an ERISP commencing at 9:37am on 1 December 2019. ^[31] SC Joliffe was assisted by SC Sally-Anne Piccles. In the interview, the Accused admitted that he was the registered owner of the vehicle said to be involved in the collision. ^[32] He stated that he did not remember hitting anyone or anything otherwise he would have stopped. ^[33] When asked whether there was any particular reason as to why he did not recall, he stated:

    31. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q1.

    32. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 34-37.

    33. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 38-43.

Q44: - - - collision?

A: No. I just don’t. I got the shock of my life ….. I was ….. at home, turning into Maitland - - -

Q46: Mmm.

Q47: - - - I think it’s Paterson Road, or whatever they call it, and I saw the police vehicles, oh, back a bit from me, with the flashing lights on, heading into Maitland. And I assumed they were on their way to an urgent job. And I - - -

SENIOR CONSTABLE PICCLES

Q48: Excuse me.

A: - - - went over the Belmore Bridge, that’s when my, memory from there. I looked in the rear view mirror and saw lights, that’s my first memory - - -

SENIOR CONSTABLE JOLIFFE

Q49: Uh-huh.

A: - - - and I went over the bridge, I turned right at the traffic lights, and then, and the police cars gained on me of course, and they also turned right. So I went a short distance further and pulled to the left to allow the police to go round. I thought, they’re on their way to a job - - -

Q50: [9:46] Mmm.

A: - - - but in actual fact they stopped beside me, you know?

Q51: Mmm.

A: And, um, and, um, I didn’t know what was going on. I had no idea. I didn’t think it was, they’re after me. I got a shock, you know.

54. The Accused stated that his first memory was “Well, some ways back, where that hump is” and “that levee bank you go over”. He stated that police were back some ways and as he got closer to the bridge they gained on him and were fairly close. He then turned right and was followed a short distance and pulled over to the left where there was space and he then noticed the police stopped behind him and he had no idea why. ^[34] He added that the police were a matter of minutes behind him when he first saw them to when he pulled over and stated that the lights were green and went straight through them. ^[35] He then added that he saw the lights flashing “when they were way back”. It was his intention to pull over so that they could go around. ^[36] He was asked whether he thought a kilometre and a half is a reasonable time and distance to do that and he stated that on the bridge there was nowhere to get off and that there was limited area to pull over and stop. ^[37] He stated that he did not delay the police as they were still catching up when he pulled over. ^[38] The Accused stated that he didn’t remember the speed that he was travelling at and nor did it feel like there was any mechanical issues with his car. ^[39] He also mentioned that he did not notice any damage to his vehicle. ^[40]

    34. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 59-64.

    35. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 65.

    36. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 76-78.

    37. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 79-82.

    38. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 84.

    39. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 86-89. and 243

    40. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 91.

55. The Accused stated that on the evening in question there was no other persons in the vehicle. ^[41] He stated that he was driving from a Christmas party at Flat Road, Bolwarra and he did not know where he was driving to as he intended to stay the night as he had a stretcher, a mattress, a sleeping bag and a pillow to sleep in the house. ^[42] He stated that he arrived 5:30pm in the afternoon or a bit later, had three beers, oysters, prawns and finger food and some glasses of wine but he didn’t know how many glasses of wine he had. ^[43] He stated that he was interested in cricket and every hour he would go back to the car and turn the radio on to see the progressive score. ^[44] He commenced drinking not long after arriving ^[45] and had three beers. ^[46] He stated that he had Tooheys Old but he would usually drink light but as he wasn’t planning to drive and since he was staying the night he had full strength beer. ^[47] He could not estimate how much red wine he had as he wasn’t counting and was talking to a friend who was drinking the same. He stated that he didn’t remember leaving the party ^[48] and his first vision was when the police vehicles were behind him. ^[49] He did not remember going on Flat Road and had no recall until he got down to Lorn. ^[50] When asked why he didn’t stop after the collision, the ERISP records:

    41. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 124-127.

    42. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 130.

    43. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 132-133.

    44. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 135-136.

    45. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 142.

    46. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 143.

    47. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 145-147.

    48. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 176.

    49. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 177.

    50. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 179-180.

Q244: Why didn’t you stop after the collision?

A: I didn’t know I had a collision. I had no idea until the police stopped me and I, someone said, I ….. overheard one of the policemen saying, Oh, a pedestrian got hit.

Q46: Mm-hmm.

A: I thought, well, what’s that to do with me? You know? I thought they might’ve been doing an R, RBT on me - - -

Q246: Yep.

A: - - - you know ….. I didn’t plan to drive then. I shouldn’t have driven because I was over the limit. I don’t know what my reading was exactly - - -

Q247: Mmm.

A: - - - but I, obviously I was over the limit. Havin’ those red wines on top of the beers, you know?

Q248: Yep.

A: So I just wouldn’t have done it under normal circumstances, Something’s happened where I don’t know when I fell over. I might’ve hit me head on something - - - (emphasis added)

56. The Accused stated that there was nothing unusual about the previous day in terms of how he was feeling and nothing extraordinary happened to him. ^[51]

8 December 2019

51. Exhibit D – tab 24, ERISP dated 1 December 2020 at Q & A 318-319.

57. On 08 December 2019, the Accused was re-interviewed by SC Joliffe in the presence of Sgt Lawrence Milburn. In that interview, he had disclosed that he had been diagnosed with Post Traumatic Stress Disorder (PTSD) in 2000 or 2001. ^[52] He reiterated that he had been at the party at Flat Road and stated that he had no idea when he left the party. ^[53] He further reiterated that he had no recollection of the circumstances that led him to drive. ^[54] At one point, he declined to answer further questions. The Accused has a right to silence and this was made clear to him at the commencement of the interview. No adverse inference is to be drawn against the Accused by reason of him deciding to exercise that right and declining to answer questions put to him.

    52. Exhibit D – tab 25, ERISP dated 8 December 2020 at Q & A 33-34.

    53. Exhibit D – tab 25, ERISP dated 8 December 2020 at Q & A 159.

    54. Exhibit D – tab 25, ERISP dated 8 December 2020 at Q & A 178-182.

Character

58. The Defence and the Crown have agreed that the Accused has no prior convictions. ^[55]

    55. T 200.20 and T 203.46-.49.

59. The Crown drew attention to the evidence of Senior Sgt Grace who gave evidence that the Accused asked what could be done about the breath analysis reading being a matter that does not fit with good character. ^[56]

    56. T 203.46-204.4.

60. The Defence submitted that I should accept the fact that the Accused is a person of good character and the comments to Senior Sgt Grace should be seen as ironic statements not to be taken seriously by a drunken person. ^[57]

    57. T 200.40-.48.

61. The statements made to Senior Sgt Grace are limited and it is difficult to conclude too much from them. Overall, I accept the Defence submission and find that the Accused was a person of good character.

62. The law provides that the Court is entitled to take evidence of an Accused’s good character into account in his favour on the question of whether the Crown has proved the Accused’s guilt beyond reasonable doubt. In this case, the Defence submitted that it would count against the proposition to drive consciously whilst drunk.

63. The fact that the Accused is a person of good character is relevant to the likelihood of having committed the offences alleged. The Accused’s good character can be taken into account by reasoning that such a person is unlikely to have committed the offences charged by the Crown.

64. Further, the fact that the Accused is a person of good character can be taken into account to support his credibility. The Defence submitted that the Court should do so by reasoning that what he said to police generally reflects the state of his memory at the time keeping in mind that he was affected by alcohol.

65. The Court may reason that a person of good character is less likely to lie or give a false account or giving a fake account of the events in answer to questions asked by the police.

66. Whether such reasoning is to be adopted is a matter to be determined.

67. None of this means, that good character provides the Accused with some kind of defence. It is only one of the many factors which are to be taken into account in determining whether I am satisfied beyond reasonable doubt of the guilt of the Accused.

68. What weight is to be given to the fact that the Accused is a person of good character is a matter to be determined but in the manner that I have described.

Troy Wayne Grant

69. The Accused’s son (Troy Wayne Grant) described that in the five years leading up to 30 November 2019, the Accused was in decline for most of his general health. He put on significant weight, became disorderly in his dress and wouldn’t tend to wounds or be aware at times that he had injured himself. On one occasion he had described that he had a leg injury which turned septic. He described this as repetitive behaviour until more recently when he noticed absent mindlessness and deterioration in his decision making ability. ^[58] He described his father as having random or isolated incidents of forgetfulness, including leaving his home unlocked for extended periods leading him to be contacted by police out of concern for the Accused’s welfare. He explained that he was contacted by police after the Accused’s arrest where the house was again left unsecured.

    58. T 159.3-.16.

70. Subsequent to the Accused’s arrest, Mr Troy Grant described being contacted by SC Jolliffe who asked him if his father has been tested for dementia. He responded not to his knowledge but arranged a number of examinations with Dr O’Neill and A/P Rosenfeld. ^[59]

    59. T 160.21-.37.

71. Mr Troy Grant described his father’s sleep walking as a common subject matter in his family throughout his life. There were a couple of notable incidents that he was aware of and remembers clearly but beyond that he has his own sleep walking episodes which he does not remember except it being relayed back to him by other people. ^[60]

    60. T 160.39-.45.

72. Mr Troy Grant stated that he had a memory in 1984 when he was 14 years of age. He recalled being awoken by commotion and saw his mother trying to move his father away from the bedroom window that opened up to the front yard. His father was trying to climb out of the window and stated that he was going for a swim. ^[61] At the time, he observed the Accused’s eyes as wide open and upright and did not look as though he was with it. He stated that his mother arranged for his father to come back into bed. ^[62]

    61. T 161.1-.14.

    62. T 161.16-.25.

73. On another occasion during the same period, there was a large commotion in the early hours of the morning and he observed his mother pulling sheets off the bed and the Accused was wet. He stated that he gave his mother some assistance. He stated that the Accused had built some substantial gardens in the front yard and had an organised system of watering the gardens using soaker hoses. It had been deduced that he had been out because the hoses had been moved in the middle of the night. The Accused was said to have dragged soil and grass back into bed. ^[63]

    63. T 161.47-162.6.

74. Mr Troy Grant stated that there were no other episodes that he had seen but recalled that there was a similar incident that happened when they were on holidays. The Accused had come back covered in sand and was wet in bed again. He stated that this was part of a family discussion which his mother spoke about the next day. ^[64] This incident was before the earlier incident that he described. ^[65]

    64. T 162.17-.28.

    65. T 162.30-.32.

75. Apart from these instances, Mr Grant described other discussions as to his father’s sleeping walking. The most notable discussion was in relation to the Accused sleep walking and moving irrigation pipes.

76. Mr Troy Grant described himself as also a sleep walker. He recalled an incident when he was at a holiday home, he fell asleep and the next thing he recalled was being awoken by a lady who was prodding him and asking him who he was. He said the lady was a complete stranger and then he left her house and went back to his friend’s house and people were asking him where he had been and he told them that he was woken up at a place that he did not know where he was. He also described an incident that occurred around 1998 when he was sleeping and woke up with a sheet around him and a cricket bat which he presented to his mother and his mother had to put him back to bed. ^[66]

    66. T 164.20-165.18.

77. Mr Troy Grant also described that he had heard discussions about his sister Kim also sleep walking but didn’t think she ever left the house or do anything crazy. ^[67] Mr Grant stated that following the Accused’s arrest, he contacted him and was advised that he was on his way back to his house to make arrangements to go and retrieve his CPAP machine and some medications and that he was aware that the Accused’s sister helped him retrieve some of his belongings like camping gear and stuff out of the back of the vehicle whilst it was at the smash repairers. ^[68]

    67. T 165.16-.20.

    68. T 165.31-.36.

78. Mr Troy Grant’s evidence was unchallenged and is accepted. It follows that I accept the evidence that both the Accused and his children did have a history as described. The extent to which it constituted somnambulism of the Accused in later years was disputed according to the evidence of Dr Desai. ^[69] The issue will be considered below. ^[70]

ELEMENTS

69. See Exhibit G p16 and T 45.26-46.8 and T 59.2960.9

70. T 181.16-.23.

Count 1

79. To establish Count 1, the Crown must establish beyond reasonable doubt each of the following elements:

1. That the Accused was the driver of a vehicle; and

2. That vehicle was involved in an impact, namely the impact with Tony Greenfield; and

3. The impact caused the death of the deceased; and

4. At the time of the impact, the Accused was driving the vehicle in a manner dangerous to another person or persons.

80. If the Crown fails to prove any one of those four elements of the offence subject to Count 1, then I must find the Accused “not guilty”.

81. The parties accepted that the issue turned on whether the Crown had established beyond reasonable doubt that the Accused was driving at the time of the impact with the deceased. That requires establishing beyond reasonable doubt that the Accused had at the relevant time, management and control over the movement of the vehicle, including of course the steering wheel, the accelerator and the brakes.

82. There is a general presumption that an Accused who is conscious has the mental capacity to act in such a way as to incur criminal responsibility including a presumption that the relevant act was willed or voluntary. Here, the Defence accepted that it had an evidential onus of raising the spectre of automatism: cf The Queen v Falconer (1990) 171 CLR 30 and Yousef v R (1990) 50 A Crim R 1.

83. Thereafter, it is for the Crown to prove beyond reasonable doubt that all of the ingredients of the offence were present, including that the actions of the Accused were willed and voluntary such that the Accused can be said to be driving: cf Jiminez v The Queen (1992) 173 CLR 572 and The Queen v Falconer (1990) 171 CLR 30.

84. That is it is for the Crown to remove any reasonable doubt that the Accused was acting as an automaton, divested of the control and direction of his will over what he was doing. The Crown accepted that where an act which is otherwise criminal is committed in as state of automatism then the Accused has not committed a crime.

85. The second and third essential elements were not in issue and were established on the evidence of Ms Lynn Robson and SC Joliffe.

86. In relation to the fourth element, it was accepted by the Defence that dangerousness was not an issue if driving was established bearing in mind the evidence of the amount of alcohol ingested.

Count 2

87. To establish Count 2, the Crown must establish beyond reasonable doubt each of the following elements:

1. That the Accused was the driver of a vehicle; and

2. That vehicle was involved in an impact, namely the impact with Tony Greenfield (the deceased); and

3. The impact caused the death of the deceased; and

4. That the Accused knew or ought reasonably to have known that the vehicle had been involved in an impact occasioning the death of deceased; and

5. That the Accused failed to stop and give any assistance that may have been necessary and that was in his power to give.

88. The Defence appeared to accept that in the event that all the essential elements were satisfied for Count 1 then the Court would also be satisfied in respect of the essential elements of Count 2 as the Accused would have been driving and conscious and at least ought reasonably to have known his vehicle had been involved in a collision occasioning the death of the deceased bearing in mind the collision and the aftermath. ^[71] The Defence accepted that if the only reasonable alternative was that the Accused did not have knowledge that he occasioned the death due to intoxication then the Accused would be guilty. ^[72] There was further no issue that the Accused in such circumstances failed to stop and give necessary assistance that was necessary in his power to give.

    71. T 7.32.26-29.

    72. T 198.25-.31.

Count 3

89. To establish Count 3, the Crown must establish beyond reasonable doubt each of the following elements of the offence:

1. The Accused did drive a motor vehicle; and

2. The Accused knew or ought reasonably to have known or had reasonable grounds to suspect that police officers were in pursuit of the vehicle and that he was required to stop the vehicle; and

3. The Accused did not stop the vehicle; and

4. The Accused drove the vehicle in a manner dangerous to others.

90. In the event that the Accused was found to be driving in Counts 1 and 2 then it would follow that the Accused would also be driving for the purposes of Count 3. The Crown relied on the evidence of SC Joliffe and DSC Bereza as to their interactions as well as the Accused’s statements to police particularly as to when he first noticed police as evidence of the second essential element. It is not in issue that the Accused did not stop for police when asked to. The Defence contended that if indeed the Accused was conscious and woke up at the lights where he came to stop then it was not far from where he pulled over as he didn’t think police were after him and he was looking for a place to stop. ^[73] As to the fourth essential element, if driving was established the Defence accepted the dangerousness was evidenced by the amount of alcohol ingested by the Accused.

    73. T 199.23-30.

91. In the event that driving in Counts 1 and 2 were not established, the Crown submitted that there was evidence of the journey undertaken by the vehicle the events at the Bridge Road intersection that supported that the Accused was not in a somnambulistic state. ^[74] The Defence contended that all of the journey up until the Accused was pulled out of his car was in a somnambulistic state although it acknowledged that the Accused was saying “…off” may not have been. ^[75]

    74. T 35.14-.23.

    75. T 199 1.14.

136. So far as somnambulism itself was concerned, the Defence drew attention to Dr Desai’s evidence that :

1. Four percent of the adult population suffer from parasomnias;

2. It affects 3% of the adult population, 80% of whom have had the condition since childhood;

3. There are genetic factors that make it more likely that someone with an immediate family member with somnambulism will also experience somnambulism;

4. Precipitating factors include the consumption of alcohol and central acting medications as well as sleep disturbed breathing (sleep apnoea);

5. Sleep walking involves ambulatory activity such as running and waking, searching for objects, food preparation and driving; and

6. Adults with sleep walking disturbances rarely have significant psychopathology. ^[123]

   123. Defence written submissions dated 21 November 2021 at [30]-[37] and Exhibit G p 21-27

138. The Defence pointed to the following:

1. The Accused had a history of somnambulism which it seems to be accepted as being genuine;

2. The Accused has also suffered from other conditions which are relevant in considering the possible initiation of a somnambulant state which included: sleep apnoea when not managed and underlying PTSD and depression for which he took medications which are in fact central nervous system depressants;

3. The Accused had on the night of the collision consumed a significant quantity of alcohol that was also a central nervous system depressant which worked in an additive manner with his prescribed medication.

139. As stated in [107], the Defence contended that it was likely that the Accused was significantly impacted by alcohol consumption, prescribed medication, underlying sleep apnoea for which he was not wearing a CPAP mask on the night of the incident and, it is possible, that all these issues combined with such deterioration with his cognitive functioning as existed was such that it created a real possibility that his state of consciousness was altered so that he was functioning without any truly legally willed acts but rather in an automatic state and hence not driving.

140. I have previously dealt with the question of the Accused’s alcohol consumption, cognitive functioning and medication. It is accepted that the Accused had a long standing sleep apnoea issue that required a CPAP machine and that he was not using it at the time he was observed by Ms Lynn Robson.

141. The Defence submitted that the cross examination of Dr Desai together with the surrounding facts upon which the relevant assumptions were asked to be made constitute a body of evidence that overcomes the evidential burden of demonstrating that there is in fact a real possibility that the Accused was sleep walking at the relevant time. ^[124]

     124. Defence written submissions dated 21 November 2021 at [38].

142. The relevant exchange with Dr Desai was as follows:

“Q. Your opinion, though, leaves open the possibility reasonably that he was sleepwalking as an adult, doesn't it?

A. Yeah, so the history is limited, and, yes, that is the case.

Q. Assume these factors please: this man was sleepwalking as a teenager, assume that.

A. Okay.

Q. Assume that his teenage sleepwalking involved complex motor skills and directed conducted. Assume that please.

A. Involved complex and what was the second one?

Q. Complex motor skills and directed conduct, like moving an irrigation pipe.

A. Yes.

Q. Further assume that his somnambulism continued when he was married as an adult to his wife's observation.

A. Okay, understood.

Q. And assume further that even into his 50s his partner was seeing him sleepwalking.

A. Understood.

Q. Assume also that on the night of the incident he fell asleep sometime around about 10.45 or 10.50pm and that the accident occurred about 800 odd metres away whilst he was driving erratically--

A. Understood.

Q. --and has no memory of having driven in that period of time, no memory of getting in the car, no memory of driving out of the property, no memory of the collision. Assuming all of those things, including, I should add, no use of a CPAP machine, then it is reasonable, is it not, that one explanation for his driving up to the time of the collision was somnambulism?

A. Yes. It's reasonable that one explanation is somnambulism.” ^[125]

125. T 60.7-.40.

143. The Crown for its part submitted that for aforesaid ‘concession’ to have value there needs to be a close examination of the underlying assumptions and evidence such that the proposition is at very best speculative and is not a reasonable possibility.

144. The assumptions put to Dr Desai in cross examination were needless to say abbreviated. Specifically, they assumed sleep and did not embrace the time period of any sleep up until the collision or the effects of alcohol. The impact of cognitive impairment and medication were not explored.

145. It may be accepted that the Accused had planned to stay overnight at the Robson residence and was welcome to do so. However, Ms Lynn Robson’s evidence was that it was intended for the Accused to sleep on the lounge because her girlfriend was sleeping in the spare bedroom. She could not recall if she relayed this to the Accused but thought that she had. Mr Chambers stated that he overheard the Accused being told by Mr Robson that he was to sleep in the study.

146. The evidence of Ms Lynn Robson was that after she saw the Accused nodding off to sleep on a chair between 10.45 and 11pm she left soon after to go outside and did not see the Accused again. Mr Chambers recalled a conversation towards the end of the night at around 10-11pm as the party was winding down in which the Accused was told by Mr Bill Robson that he would be sleeping in the office and the Accused stated that he was first going to the toilet and proceeded in that direction. Ms Debbie-Anne Robson observed around 11pm hearing the Accused say “toilet” and going in there before coming out and then going back outside to the party. Whatever is to be said of these statements, none of them were cross examined on.

147. On this evidence, the only evidence of sleep was a period described as “nodding off to sleep.”

148. Dr Desai commented upon the expression ‘nodding off’ and stated:

“So nodding off could represent lots of things. To me it's suggestive of a brief stage of sleep or it's at least - it's suggestive of falling asleep. But what we do need is consolidated sleep for 30, 40 minutes to set up the substrate before someone's going to go in to slow-wave sleep. So when I say consolidated sleep, continuous sleep. So, if the nodding off was in and out of light sleep while sitting up and, and having periods of wakefulness in between, then they then go back to N1, N2 before they get to slow-wave sleep. So the circumstances of whether that was continuous sleep for 30, 40 minutes before he leaves the house would be important as opposed to periods of short naps, if you like, interspersed with periods of wakefulness.” ^[126]

126. T 17-.28.

149. The evidence of the Accused sleeping was correctly described by the Crown as “scant.” ^[127]

     127. T 170.19.

150. Dr Desai stated that sleep can broadly be divided into NREM (non-rapid eye movement) and REM (rapid eye movement) sleep known as N and R sleep respectively in the latest stage classification. NREM sleep was further divided into stage N1, stage N2 and stage N3.

151. The evidence of Dr Desai established that to have an incident of sleepwalking there firstly needs to be sleep that progresses to N3 stage after passing from N1 and N2 stage. ^[128] Accordingly, to support any possibility of sleepwalking at the relevant time the “nodding off’ has by necessity been elevated in status to actually being asleep. That on the evidence is speculative despite Mr Chamber’s evidence that the Accused was readying himself by stating that he was going to the toilet and that he was to get his CPAP machine. Beyond that, whilst it is conceded, that Dr Desai stated that N3 sleep could be entered as early as 30 or 40 minutes after first falling asleep, he stated that “it is generally thought to be unusual to have ……. N3 sleep occurring much earlier than the expected latencies” ^[129] that is about 40 minutes to one hour after entering N1 sleep. The time bracket between 10.45pm being the earliest time he was seen nodding off and the accident at around 11.24pm would be 39 minutes.

     128. T 41.48-.42.2

     129. T 53.39-.40.

152. One scenario advanced by the Defence embraced the Accused sleepwalking was when he spoke to Ms Debbie-Anne Robson in the laundry at about 11.00pm. Whether or not the actions of the Accused at about 11.00pm observed by Ms Debbie-Ann Robson could otherwise be consistent with sleep walking as opposed to intoxication is one question but the time to enter into N3 sleep would have been constrained.

153. At one point, Dr Desai stated that entry into N1 sleep could be up to half an hour or could be as little as a few minutes and N2 would generally be from 10 to 30 minutes. ^[130] Those concessions were seized on by the Defence to contend that N3 could commence as early as 10 to 20 minutes after falling asleep. ^[131]

     130. T 53.13-.15.

     131. Defence written submissions dated 21 November 2021 at [46].

154. When that proposition was directly put to Dr Desai, he stated the following:

Q. And N3 could therefore commence somewhere as close as ten or 20 minutes from first induction of N1.

A. That would be unusual. So, we, we do see that we talk about N3 occurring slowly and that's we call slow wave sleep rebound. We talk about it occurring early mainly in the setting situations of, say, sleep deprivation where a person hasn't slept much for, for days leading up to a better sleep, and then they get this rebounding N3 sleep. Or if there's medications that might suppress N3 sleep and then they come off it, and then they get the rebound. So, it is generally thought to be unusual to have non REM or REM sleep for that - sorry, to have N3 sleep or REM sleep occurring much earlier than the expected latencies. ^[132]

132. T 53.31-.41.

155. Neither of the scenarios referred to by Dr Desai arise on the evidence nor anything of an analogous kind. On the expected latencies of 40 minutes to one hour after N1 sleep described by Dr Desai, there would not have been sufficient time for the Accused to have entered N3 sleep accepting that he was nodding off to sleep between 10.45 and 11pm before commencing sleep walking at around 11pm. Nor is there 30 to 40 minutes of continuous sleep to enter N3 sleep described in the less usual circumstances.

156. Dr Desai stated that a sleep walking episode would be brief in the order of 5 to 7 minutes and it would be unusual for an event to go beyond 10 maybe 15 minutes. ^[133] Accordingly, even accepting that the Accused commenced sleep walking at that time he entered the laundry to go to the toilet which was around 11pm, the duration of any potential sleep walk would not have been consistent with him sleep walking at the time of the collision within the time frames referred to by Dr Desai bearing in mind that the 000 call was made just before 11.24pm. ^[134]

     133. T 44.8-.17.

     134. Exhibit D, tab 11 – Incident Detail Report.

157. The alternative scenario advanced by the Defence for the first time in submissions was that the Accused went to his car after going to the toilet and fell asleep there. There was no evidence supporting that but for it to occur, it would have been sometime around 11pm. Any sleep at that point again would not appear to have allowed the 30 to 40 minutes of continuous sleep to enter N3 before the collision let alone the expected latencies described by Dr Desai of 40 minutes to an hour after entering N1 sleep.

158. The third scenario advanced by the Defence in oral submissions was that the Accused could have gone to the toilet before he was seen by Ms Lynn Robson nodding off to sleep bearing in mind that Ms Debbie-Robson stated her observations were around 11pm. However, Ms Debbie-Robson’s observation was that after going to the toilet, the Accused went back outside to the party. There is no evidence that he returned inside thereafter.

159. At the very least in the time interval after the Accused was seen nodding off to sleep and before the collision, it would be highly unusual for the Accused to enter into a somnambulistic state.

160. I have accepted that the Accused had a history of somnambulism that also extended to his children. The Accused also gave a history of his own sleep walking as reported by him to Dr Desai. A/P Rosenfeld also recorded the Accused informing him of a history of sleepwalking as a child and in later years and a history of sleep walking in the family. ^[135] There is no evidence however of any sleepwalking events post the Accused’s late 50’s and there is no reference at all to sleepwalking in the notes of the Accused’s general practitioner, Dr Plummer. ^[136]

     135. Exhibit 1 at 7.22.

     136. Exhibit D, tab 33.

161. The Plaintiff was born in August 1949. ^[137] Dr Desai stated that for a person to be sleepwalking at the age of 70 “it would be an example of an extremely unusual occurrence.” ^[138] I accept the Defence submission in that it has to be looked at in the context of the Accused’s previous history of somnambulism.

     137. Exhibit D, tab 33.

     138. T 52.30.

162. However, as to how unusual the index event is as an example of sleepwalking, Dr Desai stated:

“I have never seen such florid sleepwalking activities at that age in, in 20 years of practice and in confidences over the years. …. I have a lot of difficulty accepting that.” ^[139]

139. T 61.30.

163. That opinion was derived in the context of having viewed documents including the witness statements of Ms Belsham, Ms Ninness and Officers, Hofman, Bereza, Collier and Grace.

164. The Accused was a man with an extensive history of alcohol abuse and, according to Dr Desai, his slow wave sleep is reduced and thus the opportunity to sleepwalk is also similarly reduced. Dr Desai also mentioned that his understanding of the literature pertaining to the effect of alcohol on slow wave sleep, although not definite, indicates that it is reduced for habitual drinkers as opposed to non-habitual drinkers. ^[140] Dr Perl came to a somewhat similar view stating that alcohol could make a person drowsy and more sedated but as far as falling asleep, whilst in some circumstances that may be a consequence, alcohol also disturbs sleep so that it would be more likely that a person would wake up. ^[141] It meant that it disrupted sleep patterns and you don’t sleep as well or as deeply for the period of time whilst you’re intoxicated. ^[142]

     140. T 54.24-.40.

     141. T 79.26-.32.

     142. T 79.34-.36.

165. The combination of the circumstances outlined above satisfy me that there was no reasonable possibility that the Accused was sleepwalking at the time of the collision. In coming to this view, I am embolden by the strength of evidence that the aberrant driving can be explained by alcohol. Dr Perl gave detailed evidence to this end and it was not in issue. ^[143] Any period of memory loss can be explained by the alcohol as earlier discussed.

     143. Exhibit E(1), report of Dr Judith Perl dated 1 April 2020 at [21]-[33].

166. Moreover, notwithstanding the Accused’s prior good character, I accept the Crown submission that the Accused’s answers recorded in the police body cam recording are consistent with a conscious and voluntary decision to drive that included an evaluation. That evidence in my view leads to no other logical inference.

Conclusion

167. Being satisfied that the Accused’s was conscious and acting voluntarily at the time of the collision, it follows that I am satisfied beyond reasonable doubt that he was driving at the time of the collision. It follows that this essential element having been established and all other elements being established the Accused is guilty of Count 1. As earlier noted, the Defence accepted that it was dangerous to drive with the amount of alcohol consumed by the Accused such that the element of dangerousness was not in issue. ^[144]

     144. T 181.16-.28.

168. The Defence accepted that it would also follow that the essential element being established, then Count 2 would also be established such that the Accused was driving, and being conscious, ought to have been aware of the collision and the death of the deceased yet failed to stop and render assistance.

169. With respect to Count 3, the Defence also accepted that it would follow the Court’s findings on Count 1 that the Accused was driving and that the driving was dangerous.

170. Leaving aside the nature of the journey that the Accused had undertaken following the collision, I am satisfied that the Accused knew or ought not reasonably to have known or had reasonable grounds to suspect that police officers were in pursuit of his vehicle and that he was required to stop. Any contrary view is inconceivable particularly in circumstances where:

1. The Accused was aware that police were behind him activating lights and siren from the distance described

2. Police opening his door and being told to stop and

3. Responding to police stating “...off” and closing the door before proceeding to drive off and not stop in the circumstances described at [33]-[34].

171. Plainly, the Accused did not stop when asked to do so.

172. It follows that the Accused is found guilty on all Counts in the indictment.

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Endnotes

Amendments

04 March 2022 - Typographical error

Decision last updated: 04 March 2022