R v Nguyen
[2017] SADC 13
•21 February 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NGUYEN
Criminal Trial by Judge Alone
[2017] SADC 13
Reasons for the Verdicts of Her Honour Judge Tracey
21 February 2017
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - GENERALLY
Trial by judge alone – accused charged with one count of Aggravated Causing Death By Dangerous Driving and one count of Aggravated Causing Harm by Dangerous Driving – issue at trial was whether the concentration of methylamphetamine in the accused’s blood was sufficient to affect the accused in such a way as to impact on his ability to drive – whether driving was dangerous.
Held:
Count 1 – Guilty. Count 2 – Guilty.
Criminal Law Consolidation Act 1935 (SA) s 19A(1); Road Traffic Act 1961 (SA) s 47BA, referred to.
R v Kamleh (1990) 51 ACrimR 435; McBride v R (1966) 115 CLR 44; Jiminez v The Queen (1992) 173 CLR 572; R v Duryea [2008] SASC 363; Pfeiffer v The Queen (Unreported CCA South Australia, King CJ, Cox and Olsson JJ 11 December 1990); R v Greenham (1997) 25 MVR 495; Kroon v R (1990) 55 SASR 476, considered.
R v NGUYEN
[2017] SADC 13Introduction
On 26 December 2013, at about 11 am, Mr Nguyen (‘the accused’) was driving his 1994 Toyota Spacia van (‘the vehicle’) on Fosters Road at Greenacres, not far from where he lived in Clearview. It was a fine, sunny day. The accused’s four year old son Nguyen Le and 14 month old step daughter, Bao Han Nguyen Le were seated in the rear passenger seats of the vehicle. The vehicle veered from its ordinary course, across to the wrong side of the road continuing in a relatively straight line, and collided with a stobie pole.
Bao Han Nguyen Le was taken to the Women’s and Children’s Hospital with an injury to the spinal cord which caused an inability to breathe. Her life support was turned off on 7 January 2014.
Nguyen Le was able to walk from the vehicle but suffered significant injuries that included a laceration to his right forehead, a compound fracture to his right arm and contusions to the chest, abdomen and left hand.
The accused himself had injuries to his legs and had to be cut from the vehicle by Emergency Services. After he was conveyed to the Royal Adelaide Hospital, a sample of blood was taken 75 minutes after the collision disclosing the following drug levels:
·methylamphetamine 0.24 mg/L
·amphetamine 0.02 mg/L
·ketamine 0.9 mg/L
·fentanyl 1 mcg/L
The ketamine and fentanyl are likely to have been provided to the accused by the medical staff in hospital.
The accused is charged with two offences as follows:
First Count
Statement of Offence
Aggravated Causing Death by Dangerous Driving. (Section 19A(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Tuan Quoc Nguyen on the 26th day of December 2013 at Greenacres, drove a motor vehicle in a culpably negligent manner, or recklessly, or at a speed or in a manner which was dangerous to the public and thereby caused the death of Bao Han Nguyen Le.
It is further alleged that Tuan Quoc Nguyen drove that motor vehicle in contravention of section 47BA of the Road Traffic Act 1961, that he drove while methylamphetamine and amphetamine were present in his blood.
Second Count
Statement of Offence
Aggravated Causing Harm by Dangerous Driving. (Section 19A(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Tuan Quoc Nguyen on the 26th day of December 2013 at Greenacres, drove a motor vehicle in a culpably negligent manner, or recklessly, or at a speed or in a manner which was dangerous to the public and thereby caused harm to Nguyen Le.
It is further alleged that Tuan Quoc Nguyen drove that motor vehicle in contravention of section 47BA of the Road Traffic Act 1961, that he drove while methylamphetamine and amphetamine were present in his blood.
Much of the prosecution case was agreed including:
·As a result of the collision, Bao Han Nguyen Le was killed and harm was caused to Nguyen Le.
·Prior to impact the vehicle had been travelling south on Fosters Road then crossed from the eastern side of the road, over the centre, onto the western side to the point of impact.
·There were no obstacles on that section of Fosters Road that would have caused any driver to swerve or cross onto the other side.
·Prior to colliding with the stobie pole, the vehicle was travelling at approximately 55-60 kph and moved from the south-bound lane in a gradual drift.
·While drifting across the road from east to west, the vehicle did not slow down and no brake lights were observed at the rear of the vehicle.
·Both Bao Han Nguyen Le and Nguyen Le were seated in forward facing child restraints which were fitted securely and correctly.
·After the collision the vehicle came to rest facing generally south-west and had considerable front damage.
·Fresh tyre marks were consistent with the vehicle having drifted from east to west on that road while travelling south bound prior to impact. Other fresh tyre marks were consistent with the movement of the vehicle during collision and the vehicle’s ‘at rest’ position.
The accused elected to proceed by trial by judge alone.
Legal Directions
I remind myself of the following:
·the accused is presumed innocent and must be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt;
·each element of each offence must be proved beyond reasonable doubt;
·the prosecution bears the burden of proving guilt and there is no onus on the accused to prove or explain anything;
·as is his right, the accused did not give evidence. I am not to draw any inference adverse to the accused in exercising that right.
ELEMENTS OF THE OFFENCES
Count 1 – aggravated causing death by dangerous driving
The prosecution must prove beyond reasonable doubt each of the following elements:
·the accused drove the vehicle at the time of the collision;
·the accused drove in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person;
·the accused, by his manner of driving, caused the death of Bao Han Nguyen Le;
·at the time of the collision the accused had methylamphetamine in his blood.
Count 2 - aggravated causing harm by dangerous driving
The prosecution must prove beyond reasonable doubt each of the following elements:
·the accused drove the vehicle at the time of the collision;
·the accused drove in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person;
·the accused, by his manner of driving, caused harm to Nguyen Le. Harm is defined to mean physical or mental harm (whether temporary or permanent);
·at the time of the collision the accused had methylamphetamine in his blood.
Prosecution case
In this case, the prosecution alleged that the impugned manner of driving was the act of veering from the driver’s ordinary lane into oncoming traffic, mounting the kerb on the wrong side of the road and colliding with the stobie pole. On the prosecution case, the failure by the accused to pay proper attention to his driving was contributed to or caused by having ingested methylamphetamine.
The key issue at trial was whether the concentration of methylamphetamine in the accused’s blood was sufficient to affect the accused in such a way as to impact on his ability to drive the vehicle. Essentially the question was whether the accused was affected by the methylamphetamine and use of methylamphetamine led to his vehicle veering from its ordinary course.
The Director on request, provided particulars of what was alleged as follows:
The Crown case is that the accused was driving in a dangerous manner from the moment he began driving the vehicle as he was incapable of exercising effective control of the vehicle with that concentration of methylamphetamine in his blood. Alternatively, from the point in time immediately before the vehicle began veering from the ordinary course of direction to the time that the vehicle collided with the stobie pole, the accused was driving in a manner dangerous to the public.
Over objection by counsel for the accused, I did not require the prosecution to elect upon which of the bases it proposed to proceed, having found that both were open on the evidence.
The prosecution case was that because of the level of methylamphetamine in his blood, the accused could not have fallen asleep just prior to veering from his line of travel. If however, it was found that he had fallen asleep, or found he was in such a state of exhaustion to have failed to pay proper attention to his driving, the accused must have been aware that driving in such a state imposed on the victims a risk which any reasonable person in his situation would recognise as a real danger to the public.
Defence case
The defence case at trial was that the cause of the collision was entirely speculative on any view of the evidence. At the time when I requested further submissions, Mr Sale, who then appeared for the accused, sought to emphasise the question of voluntariness in that the accused is observed to be driving in an appropriate manner, then veering off without braking or taking evasive action, lending itself more to someone failing to be in control of the vehicle. He described it as an ‘omission of control rather than an action of veering the vehicle off the road … more consistent with someone failing to be in control of the veering wheel.’ The circumstances according to Mr Sale, were exactly the kind one would expect to see if there was a loss of consciousness in the broadest sense. The presumption of voluntariness in this case was said to be defeated or overwhelmed by the evidence. Mr Sale urged me to conclude that the impugned driving could not be found beyond reasonable doubt to have been a willed or voluntary action.
View
I conducted a view at the site of the collision. I observed that the relevant stobie pole had scraping marks as a result of the collision and that kerbside had been replaced since the collision. The width of the road could be described as slightly wider than a normal road with cycling lanes on both sides.
Evidence
There were a number of road users who observed the accused’s driving and who gave evidence. I also heard from Brevet Sergeant Skein (‘Sergeant Skein’) from the Major Crash Investigation section of SAPOL. Professor Jason White was called by the prosecution and Dr Michael Robertson by the accused. Both experts had prepared reports.
Sergeant Skein
Brevet Sergeant Skein had worked at the major crash investigation section for ten years. She arrived at the collision scene at 11.45 am, made markings on the road and took photographs. Sergeant Skein said that there was nothing at the scene to indicate that the vehicle had braked at all. There was no physical evidence which could assist in identifying whether the speed of the vehicle had increased prior to collision.
Rachel Wheadon
Ms Wheadon was a passenger in a car driven by her partner Corey Wheadon, travelling south along Fosters Road, behind the vehicle. Ms Wheadon said that she was not paying particular attention to the road and that it was not until her husband alerted her that she looked towards the front. When she looked she could see the vehicle veering across toward the other side of the road. She estimated the vehicle was probably about five car lengths away but that her husband slowed down when it became apparent that the accused was moving across the road. She described the vehicle veering in a ‘steady, sort of constant move heading toward the other side of the road. It wasn’t braking. It was not speeding at all. It was steady.’ She described the car veering gently and not swerving. She estimated the speed of the vehicle at about 60 kph and not speeding. The vehicle moved at a constant angle and she guessed that it was possibly fifteen seconds for the drift to occur until it hit the stobie pole. She recalled seeing another vehicle coming in the opposite direction and that vehicle slowing down as well. She could not recall seeing any vehicles in front of the accused’s vehicle travelling south on Fosters Road. Mr Wheadon pulled their car over. She went to the driver’s side first and it was apparent that the driver was trapped. Another man who was also at the scene handed Ms Wheadon the young boy. The driver was talking but she could not understand him because he was either distressed or speaking in a different language.
Corey Wheadon
Mr Wheadon said that when he was driving south on Fosters Road he only really noticed the vehicle when it started veering off road towards the stobie pole. He estimated the vehicle was travelling at between 55–60 kph and was five or six car lengths in front. He observed another car coming the other way but that it seemed a fair way off. He noticed the vehicle veering off very slowly to start off with and thought it was as if the driver was trying to park on the other side of the road before the car coming the other way was going to get there. The vehicle did not speed up or slow down and described the movement as ‘just a veering off very, very slowly.’ He estimated that it took five or ten seconds for the vehicle to veer before it hit the stobie pole, colliding front on and he did not see any indicators or brake lights illuminated.
Aram Nasradden
On the morning in question Mr Nasradden was driving on North East Road and turned left onto Fosters Road. He was travelling north. He observed the vehicle coming towards him and veering into his lane. He described it as a gentle veering and that ‘It wasn’t just sudden. It was just slowly veering towards the opposite lane which I was on and just gently but I didn’t see any braking or anything like that, so just veered off and straight into the stobie pole.’ Mr Nasradden said he did not see the vehicle accelerate. He noticed a car in front of the vehicle but that it was a fair distance ahead. He said the vehicle was about three or four hundred metres ahead of him and did not look to him as though it was speeding. He described the vehicle making straight head-on contact with the stobie pole and to lift up about one or two feet off the ground and then rest back down on the road. Mr Nasradden stopped to assist. The accused was conscious and moaning, making noise that Mr Nasradden could not understand.
Professor Jason White
Professor White is currently the Professor of Pharmacology and Head of the School of Pharmacy and Medical Sciences at the University of South Australia. He has given evidence in this and other courts relating to pharmacology and the effect of drugs.
Before he gave his evidence, Professor White was given background information in relation to the matter to the effect that the accused was the driver of a vehicle involved in a collision at about 11.00 am on 26 December 2013, where the accused’s vehicle crossed to the incorrect side of the road and collided with a stobie pole. He was informed that a blood sample collected from the accused at 12.15 pm showed 0.24 mg/L of methylamphetamine, amphetamine concentration of .02 mg/L, ketamine of approximately 0.9 mg/L and Fentanyl of approximately 1 mcg/L.
In evidence Professor White said that methylamphetamine in Australia is only available as an illicit drug and is not used for therapeutic purposes. In some overseas countries, methamphetamine can be prescribed, principally for the treatment of Attention Deficit Disorder in children to improve concentration. The therapeutic range of the drug used in such treatment is usually between 0.02 and 0.05 mg/L.[1] In Australia the most common method of using the drug is by smoking. It can also be injected and taken orally by tablet. There is no regular pattern of use for methylamphetamine. There are people who use on most days of the week and use a relatively controlled amount, typically administering the drug two or three times per day. Even those who use in that way will need to have periods of time when they don’t use the drug because of the adverse effects which become too prominent and too unpleasant.[2]
[1] T50, line 21.
[2] T51, line 21-27.
The other pattern amongst heavy users at least, is a binge pattern where the drug is used repeatedly for several days in a row. During that time users will not sleep as the drug keeps them awake. The dose is gradually increased as users develop some tolerance. People who use in that way can experience very strong effects of the drug by the end of that binge period and must stop because the adverse effects become too prominent.[3] People do not sleep during that period but there are only so many days people can go without sleeping before they start experiencing effects like hallucinations, just from the sleep deprivation alone.[4]
[3] T51, line 35.
[4] T54, line 10.
Professor White described some of the physiological changes on the body associated with methylamphetamine use which can include an increase in heart rate and blood pressure. There is a general physiological arousal in the body, so in addition to the effects on the heart, there is increased sweating, increased muscle tension, and increased body temperature.[5] Muscle tension can be manifested in various ways including clenching jaws, grinding teeth or tremors. Not all physiological changes are always seen in all users and some are difficult to observe.[6]
[5] T52, line 25.
[6] T52, line 36.
Professor White said people use methamphetamine for the effects it provides which they consider to be desirable. It has the effect of alleviating fatigue. Users feel full of energy as if they can engage in a whole range of activities and have feelings of self-confidence.[7] The combination of feeling confident and energised leads people to do things they might want to do, ranging from ‘partying’ for a long time; relief from fatigue in order to be able to concentrate and work longer, through to just wanting pleasurable feelings.[8] An increase in self-confidence when under the influence of methylamphetamine, can lead to behaviour that the user would not normally engage in that is impulsive, risky or reckless.[9]
[7] T53, line 14.
[8] T53, lines 18-29.
[9] T54, line 24.
Professor White described the adverse effects of the drug. Users can become aggressive due to an exaggerated self-confidence,[10] or as a result of the psychotic effects. Sometimes people project themselves in a manner that is extremely overconfident which can lead to conflict and aggressive behaviour. The psychotic effects include delusions where users have false beliefs or experience hallucinations and paranoia. The psychotic effects produced by methylamphetamine are almost always associated with paranoia. Users may have some kind of irrational belief, seeing or hearing things that are not there. A person in that situation might be quite dangerous both to themselves and to people around them.[11] The concentration of the drug leading to psychosis will depend on the individual. It is generally believed that people who either have a current psychotic illness or a pre disposition to such an illness are more likely to experience those psychotic effects. It also depends on a person’s typical pattern of the use. Psychotic effects are more likely to occur in people who have used over a prolonged period of time than with people who might be an occasional user. From a concentration of 0.1 mg/L upwards there is some risk and once a concentration of around 0.5 mg/L is reached, the risk of psychotic effects becomes quite high.[12] Most illicit users will achieve concentrations between about 0.1 and 0.3 mg/L, but some will be higher.[13] Professor White said that there is always variation, partly because of the individual and what their immediate use has been. People using in the binge pattern he had described, achieve quite high concentrations towards the end of the binge but generally speaking, if a person was to use the drug in the recreational sense, most would be in the 0.1 - 0.3 mg/L concentration range, with a smaller number at the higher level. Again, generally speaking, users would find concentrations below 0.1mg/L insufficient to induce the desired effects.[14]
[10] T54, line 24.
[11] T54, line 38.
[12] T55, line 24.
[13] T56, line 4.
[14] T56, line 17.
How long the effects of the drug lasts depends on the amount taken. Four to six hours is a common period, but the effects can be longer particularly if a person uses a higher dose.[15] In a single use occasion of a moderate dose, the predominant effects will be finished by about six hours.[16]
[15] T56, line 23.
[16] T56, line 26.
Professor White said that it is possible that someone is feeling the side effects of methylamphetamine even if they outwardly show no sign of use. There are not always obvious signs that someone is having a significant effect from methylamphetamine. In support of this evidence, Professor White referred to research done involving people stopped when driving apparently under the influence, to assess whether police and medical personnel can judge intoxication. Those tests have generally shown that both police and medical personnel are not very accurate in determining methamphetamine intoxication.[17] Professor White said that even with drugs such as alcohol and cannabis, where driving is impaired, it can be difficult for an observer to identify intoxication.
[17] T57, line 2.
In a therapeutic range, methylamphetamine does have a potential to improve concentration. In the children to whom it is prescribed, their concentration is relatively poor. It is also the case that someone who is fatigued and is having difficulty concentrating but who otherwise might be normal, can experience an improvement in concentration from methamphetamine. At higher concentrations there can be improved concentration but it can be an ‘over concentration’, sometimes referred to as a kind of tunnel vision or a kind of over focusing where users fail to look around at their environment.[18] A person under the influence of methylamphetamine may concentrate too much on whatever is their focus of attention and fail to see or hear things that they normally would. A driver may be looking at one thing but miss things that are elsewhere.[19] Professor White gave the example where tests show that methylamphetamine affected drivers simply miss red lights. It may be that users concentrate on one particular thing and are not monitoring where the vehicle is going on the road and divert their path because they are focusing on some particular thing.[20] There are a range of ways in which it could occur, but it essentially concerns missing either objects or events that are occurring in their environment that they would normally see.
[18] T58, line 23.
[19] T58, line 36.
[20] T59, line 8.
When asked about other examples commonly found in relation to users of methylamphetamine and collisions, Professor White said:[21]
AI have found it very common that people drift off the normal path that would be expected. So there are accidents involving people simply drifting off the road, drifting onto another side of a road, having collisions, or they may stay on their side of the road but drift into a different lane, and this has been documented by others. It is my observation that I would say the majority of crashes in which I have been asked to give evidence where there is evidence regarding the nature of the crash, it is most often of that kind of nature.
[21] T59, lines 15-25.
Professor White said that such behaviour fits with the effect of methylamphetamine producing hyper-vigilance or concentration as he had described and gave another possible explanation for the behaviour as:[22]
A… the person is simply mentally exhausted and while they may be awake and the methylamphetamine is keeping them awake, they have been through a period of, if you like, hyper-arousal due to the drug and that can produce a degree of mental and physical exhaustion. The mental exhaustion may also mean they fail to notice things or not pay particular attention to what they are doing or what is happening around them. So it could be hyper-vigilance, hyper-concentration on one particular thing and not looking around. It could be a failure to look around because there is a degree of mental exhaustion.
[22] T60, lines 6-17.
Professor White said there is no ‘hard’ evidence on the sort of concentrations where someone might become hypervigilant or distracted.
Professor White referred to studies where people have been stopped while driving, appearing to be affected by a drug in some way. Their blood samples were analysed and the concentration of amphetamine or methylamphetamine, while varying, averaged at 0.15 mg/L.
Professor White said that when a person is under the influence of methylamphetamine, they go through several stages. The first is when they experience predominantly what they consider to be the positive effects, that is, reversal of fatigue, feeling energetic, euphoria and confidence. If the dose is large enough, the user can progress into a stage where they become hyper-aroused and become agitated and the risk of psychotic effect becomes significant.[23] Accordingly the user moves from the more positive effects to the more negative. Eventually, the effects of the drug starts to wear off and there is what he described as the ‘re-bound phase’. This is sometimes described as a ‘crash’ where the effects are essentially opposite to the effects of methylamphetamine, that is instead of really concentrating, a user might have difficulty concentrating and instead of relief from fatigue, they become fatigued.[24] In a fatigued state, in terms of performance and the ability to do things, they have difficulty concentrating and are slow to react.[25]
[23] T61, line 13.
[24] T61, line 21.
[25] T61, line 28.
Professor White said that the effect of methylamphetamine on driving is not confined to over confidence and risk taking and may take a variety of forms like speeding or travelling too close to another vehicle.
Professor White said that the ‘crash’ or re-bound stage is relative to the concentration the user achieved in the first place. It is most pronounced in people who have been on a binge and used for some days in a row. The concentration of methylamphetamine decreases by about 50 % over a 10 hour period, but this is variable between different people and is only an approximation.[26]
[26] T63, line 15.
Professor White estimated that the accused’s level of concentration would have been around .28 mg/L at the time of the collision and that a concentration between 0.24 and 0.28 mg/L was ‘definitely’ sufficient to produce significant effects.[27]
[27] T64, line 4.
In regard to the effects that could be expected from such a concentration, Professor White said:[28]
… to be absolutely precise about the effects, it would be better to know when the person had administered the drug and their pattern of use for the previous days but a person is going to experience some degree of stimulation from that concentration. So, they would have decreased fatigue compared to normal. If they had simply used in the previous hour or say three, four, five hours, then probably the effects will include some of the positive effects that I described, positive from the user’s perspective, so that they may feel some degree of confidence and that can be associated with greater risk taking in their behaviour, including their driving. Decreased fatigue, as I mentioned, feelings of energy and being active, but there is also a risk of the adverse effects that I described. So a person risks that increased energy and arousal moving into a state of agitation where their thinking is likely to be somewhat confused.
[28] T64, lines 8-19.
Professor White said that it is possible, if the drug was taken some time before the collision, say the previous day or evening, that at this concentration the user might be suffering the effects of fatigue. They may have some effects of fatigue while there is still some stimulation present as well. Professor White said:
That may be because the drug is still producing some degree of stimulation but by this stage, given all the hours that they have been under the influence of the drug, there is a mental and physical exhaustion that has set in. There is only so long the brain can be activated that way. There is only so long that the body can keep doing the various things that the person is doing. So I would say that fatigue is certainly possible and some degree of re-bound but that doesn’t preclude that there is also some degree of stimulation present as well.[29]
[29] T64, lines 7-17.
When asked to assume that the drug was taken the previous night or the previous day and not the morning of the collision and the concentration at 11.00 am, 75 minutes later, was .24 mg/L, Professor White said that it was not possible for the user to have slept between ingesting the methylamphetamine and the collision. The drug simply keeps people awake.[30]
[30] T26, lines 24-28.
If a person took a very large dose the evening before then they could have stayed awake the whole night and by 11 o’clock in the morning could, even if kept awake by the drug, be experiencing exhaustion and some of the rebound effects by that stage. They would have difficulty functioning normally. Assuming a good night’s sleep, woken the next morning, using some methylamphetamine and then 75 minutes later having a blood concentration of 0.24 mg/L, Professor White said a person would not be in the state of exhaustion in the same way. More likely they would be at a stage where they are experiencing a degree of stimulation and high degree of self-confidence with the principal problem being elevated risk taking.
The effects on the driving of a user will depend on a range of factors, one of which is tolerance to the drug. Professor White said that tolerance with methylamphetamine is not simple. You can develop tolerance to a number of effects. The inexperienced user will generally have more pronounced effects than the experienced user.
Assuming that someone at a concentration of between .24 and .28 mg/L has quite some tolerance, you would expect to see increased risk taking and increased alertness with potential agitation. People who are experienced users still typically reach those kinds of concentrations between 0.1 and 0.3 mg/L. They are still clearly affected. Despite the tolerance at this level of concentration, the driver’s driving abilities will still be negatively affected.[31]
[31] T67, line 12.
When asked whether it was possible for someone with a concentration of 0.24 mg/L or 0.28 mg/L to fall asleep, Professor White said:[32]
I don’t think it is possible that they fall asleep. They may be in a state where they are awake but they don’t have the full concentration that they normally would and, as I indicated, that might come about through exhaustion, or if there are direct effects of the drug that they are not monitoring what is happening in their environment all of the time so that might look like someone who is asleep but they wouldn’t actually be asleep.
[32] T67, lines 16-24.
In response to the scenario where a user ingested methylamphetamine the night before and then was awake all night, Professor White said:[33]
No, I still don’t think they would fall asleep at that stage. As I said, they may in some ways behave like someone who is not awake because they don’t concentrate on what is happening in the same kind of way and what is happening around them in the same kind of way because they are unable to through exhaustion, a combination of the methylamphetamine effects and the period of sleep deprivation, but I would still maintain they would stay awake.
[33] T67, lines 32-38 and T68, lines 1-2.
Professor White was not sure he could put an absolute figure on the concentration level at which it is possible for someone to fall asleep. It depended he said, on what concentration they were at a particular point in time and how many hours have elapsed since their last use. People who are experienced users with a concentration of 0.24 or 0.28 mg/L, are achieving these concentrations and getting a degree of increased activity and reduction of fatigue. He simply would not expect someone to fall asleep at that kind of level.
Someone who has never used methylamphetamine before, at a concentration of 0.24 mg/L is more likely to have some of the effects. They may have difficulty coping with that degree of physical and mental arousal and they may feel somewhat agitated, having difficulty controlling their thinking. A person totally unaccustomed to the drug who achieves that level would probably find it an unpleasant experience and would probably be quite significantly impaired.
Professor White cross examination
In answer to questions in cross examination, Professor White said the concentration found in the accused’s blood would not be unusual for someone who took methylamphetamine for what might be called ‘recreational purposes’.
Professor White accepted that the effects of methylamphetamine depend very much on the amount taken and the state of the driver and the time of the administration of the drug. Like with any drug, low concentrations may have relatively little or no effect on the quality of driving performance.[34]
[34] T71, line 32.
When asked about whether low concentrations can have the potential of improving driving if a particular individual is fatigued, Professor White said while there are potential improving effects it does not mean that the overall effect is an improvement. If for example a person was otherwise falling asleep, then to the extent that the methylamphetamine keeps them awake their driving would potentially improve compared to the sleeping state. At the same time however it can have negative effects such as increasing risk taking where the person may be more awake but more likely to take risks that put them in danger. Professor White said it is very hard to judge the net effect when the concentration is low because you do have some potential improving effects but you still have the negative effects as well.[35]
[35] T72, line 13.
Professor White said that at both high and moderate concentrations of the drug there can be negative effects, including increased confidence and risk taking. Whether someone exhibits risk taking behaviour depends on the situation. Typically methylamphetamine intoxication is very hard to determine especially by a lay person, but risk taking behaviour like speeding, weaving in and out of traffic and travelling too close to a vehicle would all be observable.
Professor White agreed that there may be conduct consistent with the adverse effects of methylamphetamine that is obvious, such as aggression, weaving in and out traffic or travelling too close to a vehicle, but said that a person can be affected by the drug at a level where it is not necessarily manifest. Irrational thinking and paranoia may be evident but not always. It may be obvious but not necessarily so.[36]
[36] T74, line 30.
Professor White agreed that as a general proposition, methylamphetamine may cause a very wide range of effects on a particular given individual but did not accept that the effects are unpredictable, which he said implied that no statements can be made about the general effects of the drug.[37]
[37] T75, line 12.
Professor White agreed that the effects of methylamphetamine on a given individual are very much dependent on a number of factors including the dose of the drug, to a degree the mechanism of administration, the time of administration and prior history or experience with taking methylamphetamine.[38]
[38] T75, lines 25-37.
Professor White said that in this case, given the concentration, ‘you could very safely assume that the person has a degree of tolerance’.[39] If they were a totally inexperienced user they would obviously be affected by the drug in a manner which was quite unpleasant to them. Tolerance, Professor White said, is important but it can be assumed that someone who has reached that level of 0.28 mg/L has definitely used the drug before and that ‘this is not the first or second time they have used the drug’.[40]
[39] T76, line 13.
[40] T76, lines 20-21.
In answer to whether it is fair to say that the amount of methylamphetamine in the blood does not allow a reliable prediction of the effect of that drug on a person, and rather, only allows that it may give rise to a number of possible effects, Professor White said:[41]
… the concentration of any drug for a given individual you can’t say absolutely what happened to that individual at a particular point in time without knowledge of exactly the circumstances, some of which we discussed, some of which would be what is happening around them at the time but we can make general observations of some of the effects produced. If you take for example driving, studies done with people who have previously used methylamphetamine have shown impairment at concentrations close to a third of that in this instance, or approximately a third. Now it may be that a given individual at this concentration of 0.28 is not as affected as some other people but I don’t think you can get to the point of saying there are no effects or we just think there may be little or no effect on that individual. I think you are also talking about a concentration that is in the range that people actively go out and try and achieve because they know it will have significant effects on them and when they are affected in that way, you know, they are going to be impaired in a whole range of ways. So yes, there is some variation between individuals and the circumstances and so forth but this is a concentration that you know we can be confident is significantly affecting the particular individual… it is not a borderline or very low concentration… There are definitely going to be effects on the individual. Exactly how much and exactly what form they take do depend on those facts, including the ones you described.
[41] T76, line 27.
Professor White considered that the accused was incapable of safely operating the vehicle and said he would regard anyone driving at the concentration found in the accused’s blood to be unsafe.[42]
[42] T77, line 30.
Professor White said that did not mean that at every moment a user of methylamphetamine at that level drove they were doing something wrong, but will be in certain circumstances. For example in studies of simulated driving by users, participants[43]do things like driving through red lights or make errors when indicating. The person may well be operating the vehicle and for a significant proportion of the time might be relatively safe, but they are unsafe because there is a potential for them to make mistakes and do things wrong.[44]
[43] T77, line 36.
[44] T78, lines 1-4.
Professor White agreed that an individual who is sleep deprived, or someone with the accused’s level of methylamphetamine, is in a different situation to an individual who has drunk so much alcohol they are grossly affected and cannot operate the vehicle in an effective manner.
Professor White was asked about the information he had been provided with prior to giving his opinion. He was not provided with witness statements who observed the accused’s driving prior to the collision. He was not informed of the observations that prior to the collision the speed of the vehicle was 55–60 kph in a 60 kph zone, or that his driving was observed to be completely unremarkable. Professor White said however, in line with his earlier evidence, that observations are of limited value as even trained people are not very good in picking up intoxication by drugs. In terms of driving, a person who is affected by a drug may drive in a way that is unremarkable but that does not mean that their probability of an accident is not significantly higher. Typically, the effects of the drug manifest in a higher demand situation. Routine driving is something that can be undertaken by someone who is grossly affected. A person affected by methylamphetamine may drive in an unremarkable situation in an unremarkable way but put them in a different situation with pedestrians or other cars and they are likely to show impairment. The same comments Professor White said, would apply to an individual who was sleep deprived.
Professor White confirmed his view that that the accused’s level of methylamphetamine would keep him awake. The history of administration of the drug might be important in terms of whether he could sleep in general but the concentration was still at such a high level that it was extremely unlikely, in fact close to impossible, that the person would fall asleep.[45] When asked whether as a general proposition he agreed that an individual with this level of methylamphtamine in his system there was potential to improve driving ability, Professor White said that as a general proposition he disagreed. It has the potential to improve some aspects, particularly if the person is fatigued, it may reduce some of those fatigue effects but at the cost of producing other adverse effects of driving. He did not think that it could ever be said that a net effect of the drug is an improvement.[46] While Professor White agreed that the effects of methylamphetamine on driving depends amongst other things on the amount taken, the state of the driver and the time since the administration of the drug, in this case, there is a known concentration and the amount taken is not that relevant.[47] He said:[48]
… we have a concentration and obviously the amount taken and the time at which it’s taken are all factored into the concentration, but those effect the concentration, if you did not know the concentration those two would be very important but given that we know the concentration it would be somewhat less important.
[45] T81, line 37.
[46] T82, lines 11-12.
[47] T83, lines 18-20.
[48] T83, lines 20-25.
Professor White disagreed strongly with the proposition that in general, drug concentrations per se cannot be used in isolation to predict impairment and that additional evidence is needed, for example, behavioural observations. Professor White said in the case of methylamphetamine, observation is not a reliable indicator of intoxication and not a reliable indicator of a person being affected in a manner that their driving is influenced in an adverse manner. The same applies, he said, to other drugs because using that same proposition you would have to argue that you can only say a person is adversely affected by alcohol when they are observed to be adversely affected. At 0.08 per cent there is a clear increase in crash risk and impairment in driving ability but the vast majority of people would certainly not seem to be intoxicated and most likely, their driving would look perfectly normal. There is a level at which the person is adversely affected but they do not demonstrate that in an outward manner. It very often requires higher levels to see it in an outward manner.
Professor White maintained that the accused’s level of concentration was such that he could with confidence say the accused would be affected with regard to his driving. He accepted that the exact way the effect is manifest depends on a number of factors.[49] Professor White believed that the nature of the crash in this case is consistent with what he has observed and what others have observed as crashes that often occur when a person is affected by methylamphetamine.
[49] T85, lines 6-13.
Evidence of Dr Michael Robertson
Dr Robertson is a pharmacologist, forensic toxicologist and a chemist.
Before giving evidence he had been provided with a copy of the witness statements and the statements of Professor White. Dr Robertson prepared a report dated 16 October 2015.
Dr Robertson described methylamphetamine as a stimulant drug used in Australia predominantly for its stimulant properties.
He said that broadly speaking he agreed with Professor White’s opinion with respect to the likely concentration of methylamphetamine at the time of the collision. He described it as ‘there or thereabouts.’[50]
[50] T95, line 35.
Dr Robertson described the level found in the accused’s blood as low to moderate.[51] He said a low level would be in the therapeutic range of 0.1 mg/L or below. Moderate levels he described as 0.4 - 0.6 mg/L and high as above 0.6 mg/L. He described levels in the 0.3 - 0.7 mg/L range as fairly common for a recent ingestion of peak concentration of an illicit user.[52]
[51] T95, line 2.
[52] T95, line 22.
Dr Robertson said that it was not possible to look at a level of 0.28 mg/L alone and predict confidently the likely effect of that level of methylamphetamine upon a particular individual’s behaviour generally, or more specifically in their ability to drive.[53]
[53] T96, line 27.
He said that unlike alcohol where the concentration of alcohol as it relates to driving is very consistent across all people, a tolerance for methylamphetamine is created when anyone uses the drug for a lengthy period of time. In someone who has never used methylamphetamine before, a level of 0.28 mg/L would be acutely impairing and intoxicating and the person would probably exhibit all sorts of external signs of methylamphetamine toxicity.[54] A level of 0.28 mg/L to someone who may have used methylamphetamine for an extended period of time might almost be a normalising dose where that is what they need to behave normally. That is, if they did not have that amount they would go through a withdrawal.[55] Dr Robertson said that in a case like this where the level is low to moderate, the effects of the drug could range right across the spectrum from mild stimulation to perhaps a little bit of withdrawal.[56] He said it may be fatigue or an amount that is simply normalising and that is was a little higher than you might expect to ward off fatigue or where there is improved performance.[57]
[54] T96, line 34.
[55] T97, line 4.
[56] T97, line 19.
[57] T97, line 22.
When asked about the possible adverse effect to someone with the accused’s level of methylamphetamine, Dr Robertson said:[58]
… if an individual is in the stimulating phase, the adverse effects might be elevated heart rate, sweating, there might be some agitation, some irritation. I would expect they would be quite fidgety, unable to stand still; when it comes to driving, easily distracted, loss of concentration and perhaps risk-taking, that is over taking inappropriately, driving at excessive speeds.
[58] T97, line 34.
With respect to someone who had used the drug many hours or a day earlier, where they have used the drug repetitively and cannot ward off fatigue, Dr Robertson said they will fall asleep and become hyper-somnolent. They may have experienced a pleasurable experience and are in the post-pleasurable experience lull where they are just a little flat; they might be tired and a little bit sleepy.[59] If the drug was taken a day before or the evening beforehand, while it might have been acutely intoxicating or had desirable positive effects the evening before, it might now have worn off and you are dealing with fatigue or tiredness that might have come with poor sleep.
[59] T98, line 10.
Dr Robertson agreed that as a general proposition, risk taking behaviour such as speeding, running red lights, overtaking and driving into oncoming traffic would be fairly obvious to other road users on the part of an individual who was experiencing the stimulant effects of that level of methylamphetamine.
Dr Robertson said factors such as when the drug was last used, the tolerance of the individual, how long they have used the drug, what their normal dose is and their observed driving behaviour gives some indication, and allows for a more firm conclusion with respect to both the phase of intoxication, and whether it has contributed to the collision.[60]
[60] T101, line 14.
When asked whether a blood concentration of 0.28 mg/L significantly affected adversely an individual’s ability to drive, Dr Robertson said it was possible it could produce significant effects on driving but that is not to say it did affect the driving. It cannot be predicted from the level itself whether the individual was acutely stimulated, or acutely fatigued or whether or not in a long term user the level may have been of significance in relation to driving.
Dr Robertson said that when looking at the evidence of the accused’s driving behaviour prior to the collision and the circumstances of the collision, it was inconsistent with a stimulated driver using methylamphetamine. He said:[61]
… when we look at the evidence that I have been provided, particularly the driving behaviour that was observed prior to the incident and the circumstances of the incident…that is driving at or below the speed limit, no lane weaving; drifted across a lane in a fairly constant direction and pattern, no braking prior to hitting a pole, that is inconsistent in my opinion with my experience and training in a simulated driver, particularly with methylamphetamine. It may be the person had fallen asleep, I don’t know… But certainly it did not appear to be methylamphetamine related stimulation and so, given the absence of critical bits of information, or indeed bits of information that was inconsistent with a stimulated driver, that’s why I say, yes it is possible. These levels are consistent with stimulation and driving related accidents but in this case that didn’t appear to be the case.
[61] T101, line 36.
Dr Robertson rejected Professor White’s opinion regarding it being improbable that the accused fell asleep because while the level is capable of producing stimulation, the evidence that he would use to corroborate such a scenario is to the contrary.[62] That is, the accused’s driving did not appear to be erratic. Dr Robertson described the types of crashes that occur when someone is stimulated by methylamphetamine as usually head on where a driver has pulled into oncoming traffic, or when control is lost negotiating a corner. Dr Robertson said that drifting across the road without braking is inconsistent with his research and most articles in the literature relating to crashing whilst stimulated.[63]
[62] T102, line 36.
[63] T103, line 7.
Based on his research in situations where no braking has occurred, the evidence has revealed the driver was asleep or has had an acute medication situation.[64]
[64] T103, line 21.
In cross examination, Dr Robertson said the level for someone taking methylamphetamine for therapeutic purposes would be between .02 and 0.5 mg/L.
Dr Robertson said because a user may have developed a tolerance to methylamphetamine, it is not possible to say at what level a user would be expected to experience a euphoric feeling. Some people with a therapeutic dose experience euphoria and are stimulated while others with higher levels may not feel euphoric, requiring them to take higher doses to experience such a response. A number in isolation cannot be used to interpret whether someone is stimulated or not.[65]
[65] T105, line 11.
Dr Robertson agreed that the range most commonly found in those using the drug for stimulation in a party sense, is anything above 0.2 - 0.3 mg/L.[66]
[66] T105, line 33.
Dr Robertson agreed that a level of 0.2 mg/L would be quite high for a non-user of methylamphetamine.[67] A non-user at 0.3 mg/L would show positive effects but they would certainly experience some negative or adverse effects.
[67] T106, line 2.
He agreed that 0.28 mg/L is consistent with someone misusing methylamphetamine.[68]
[68] T106, line 24.
A user of methylamphetamine would not necessarily have all of the behavioural changes that can be experienced with methylamphetamine use. They may have one or more as it comes down to the dose that has been taken by that individual and their experience with that dose as well as their physiological tolerance. A user who is very tolerant, may show none or few of the signs, or the signs might be subtle.[69] If a user is accustomed to methylamphetamine they may show fewer signs than someone that has less methylamphetamine in their blood, yet they are showing greater signs.[70] It is not possible to say at what concentrations might expect to observe particular behavioural changes. Dr Robertson agreed that where someone has been involved in a serious collision and is injured and distressed, it would be difficult to observe behavioural changes.
[69] T107, line 15.
[70] T108, line 4.
Dr Robertson said that in a methylamphetamine stimulated driver, things go a lot faster in their mind. It can increase self-confidence and lead to impulsive behaviour. He agreed that someone affected by methylamphetamine will not necessarily display all of these poor driving characteristics.[71]
[71] T110, line 2.
With higher than therapeutic range concentrations someone can become distracted instead of becoming more able to concentrate.[72] Usually the distraction is quite rapid. Dr Robertson said that he ‘was not too sure’ about a user being distracted by something and maintaining that distraction, in that he had not seen that as a common descriptor of methylamphetamine stimulation.[73] He agreed that it was possible that someone with a level of 0.28 mg/L may miss things in their environment they would normally see.
[72] T110, line 24.
[73] T111, line 1.
Dr Robertson said hypervigilance or tunnel vision are not routinely described in the literature concerning methylamphetamine as a stimulant. Usually the distraction is quite rapid so jumping from distraction to distraction is evident. While Dr Robertson said he cannot say it would not happen or could not happen, based on what he understood of the evidence in this case, it was not consistent with someone being acutely stimulated with methylamphetamine and the vehicle crashing as a result of it.[74] It was he said, more consistent with fatigue where the road has changed direction and the vehicle has continued in a straight line with no evasive action and has hit something.[75]
[74] T112, line 6.
[75] T112, line 18.
Dr Robertson agreed it was possible the accused veered into oncoming traffic because he was simply exhausted.[76] If he was exhausted he would not have used methylamphetamine that morning unless he was trying to reverse the exhaustion. Dr Robertson described what he said was a fairly common binge use pattern where there is constant use for many hours or days and users try to top up and get stimulated. He concluded it is possible that the drug was taken that morning if the user were profoundly fatigued or exhausted but said that it was perhaps less likely.[77]
[76] T112, line 26.
[77] T113, line 1.
He agreed there were a number of possible scenarios as regards to when the drug was consumed. The accused may have used methylamphetamine sometime the previous day and then did not sleep over night and was thereby fatigued. He may have used earlier that morning and achieved that concentration of 0.28 mg/L, and if so, there would then be four to six hours of stimulation and depending on the times, he may have been stimulated. He may have used the morning of the collision as part of a pattern of use over a number of days. Finally, he may have had a good night’s sleep the night before and woken and used methylamphetamine that morning.[78] While Dr Robertson agreed the last of these scenarios was possible, he said the circumstances of the actual crash did not necessarily fit, in that a person who had a good night’s sleep and used that morning would be acutely stimulated for up to six hours and the slow progression at or below the speed limit with no lane weaving and no braking or evasive action, would be inconsistent with recent use in the morning. He would likely be stimulated and therefore unlikely to have fallen asleep.[79]
[78] T113, line 31.
[79] T114, line 9.
Dr Robertson disagreed with the suggestion that it was next to impossible that someone with that concentration of methylamphetamine in their system could fall asleep.[80]
[80] T114, line 23.
As regards to the scenario where the accused used the previous night, if the accused was in some state of mental exhaustion or fatigue it is possible that in that state he would fail to notice things of importance. He said people may become distracted or irritated. The concentration at which driving might be improved is generally at lower concentrations equivalent to the therapeutic range and at a higher range the adverse effects start to be seen.[81]
[81] T115, line 9.
Dr Robertson’s view was that there is a spectrum of responses throughout different concentrations.[82]
[82] T116, line 7.
Dr Robertson was asked whether from a level in the range of 0.24 - 0.28 mg/L we could be satisfied that the user has his driving ability impaired. In response, Dr Robertson said driving ability may be impaired.[83] He said there are studies that say that above 0.2 mg/L, driving behaviour may be impaired but there are also studies showing where people have higher levels that have less impairment so it is difficult to say it must be impaired but certainly there may be impairment. At that level there may be some factors improving driving ability but also some factors which are hindering driving ability.
[83] T116, line 20.
In a long term user of methylamphetamine that level may have relatively no effect either positive or negative on that person’s driving. While studies have shown that more would be impaired than not impaired,[84] Dr Robertson would not agree that it is almost certainly the case that driving ability would be effected negatively.[85]
[84] T117, line 14.
[85] T117, line 20.
When asked whether he considered someone with the accused’s concentration would be considered dangerous, Dr Robertson said:[86]
I wouldn’t recommend it. Dangerous unless you know what effects that is having on the person individually. I don’t know that I would necessarily say dangerous full stop. But I certainly wouldn’t encourage someone to take methylamphetamine and drive a motor vehicle.
[86] T117, line 24.
Analysis
The objective nature of the test to be applied in relation to the manner of driving in regards to the offences with which the accused is charged, is well settled. In R v Kamleh[87] King CJ said:
The question is not whether the accused intended to drive, or appreciated that he was driving, in a manner dangerous to the public but whether, in the judgment of the jury, a reasonable person in the situation of the driver would have appreciated that he was driving in a manner dangerous to the public.
The crime is committed by the act of driving in a manner which any reasonable person in the situation of the driver would recognise as dangerous in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public. Ordinary risks of the road include those arising from the sort of faulty driving and lack of care which must be expected, due to human frailty, from time to time, from the ordinary driver. The sort of driving which constitutes this crime is more serious than that. It is driving which a reasonable person in the situation of the driver would understand to be such as would give rise to a serious risk of injury to members of the public going beyond the ordinary risks of the road. It is driving which is therefore fit to be regarded as a serious crime. If the driving, although negligent, does not go beyond what might fairly be regarded as an ordinary risk of the road, a crime of causing death or bodily injury by dangerous driving is no committed but the driver is guilty of driving without due care or attention contrary to s 45 of the Road Traffic Act 1961 (SA), a verdict of guilty of which offence is open to the jury by virtue of s 19b(2) of the Criminal Law Consolidation Act 1935 (SA).
[87] (1990) 51 ACrimR 435 at 436.
Accordingly, I am to assess whether a reasonable person in the accused’s situation as driver would have appreciated that he was driving in a manner that was dangerous to the public.
Furthermore, the prosecution is required to prove that the manner of driving was so serious a breach of the proper management and control of the vehicle as to be in reality and not speculatively, potentially dangerous to others. In the High Court decision in McBride v R,[88] Barwick CJ said in discussing the meaning of driving in a manner dangerous to the public:
The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public, but the need for death or injury to a person to result from impact with a vehicle so driven may make that question unlikely to arise, though the possibility of its doing so must be acknowledged.
[88] (1966) 115 CLR 44 at [49]-[50].
In Jiminez v The Queen[89] the High Court cited the above passage with approval and the majority, in considering the meaning of driving in a manner dangerous to the public said:
The manner of driving encompasses "all matters connected with the management and control of a car by a driver when it is being driven". For the driving to be dangerous for the purposes of s 52A there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention. Although a course of conduct is involved it need not take place over any considerable period. Nor need the conduct manifest itself in the physical behaviour of the vehicle. If the driver is in a condition while driving which makes the mere fact of his driving a real danger to the public, including the occupants of the motor vehicle, then his driving in that condition constitutes driving in a manner dangerous to the public. In the same way, driving a motor vehicle in a seriously defective condition may constitute driving in a manner dangerous to the public.
(footnotes omitted)
[89] (1992) 173 CLR 572 at 579.
In R v Duryea, White J described the two ways in which evidence of the effect on a driver by drugs or alcohol may be made in a charge of dangerous driving. In relation to the first, he said:[90]
… driving a vehicle on a road while so affected by alcohol or a drug as to be incapable of exercising effective control of the vehicle is itself driving in a manner dangerous to the public. In such cases the driving may be characterised as dangerous even though the way in which the defendant drove, viewed objectively, was unexceptional. Such cases are likely to be uncommon and clear evidence of the incapacity would have to be adduced.
[90] [2008] SASC 363 at [25].
His Honour referred to the Full Court decision of Pfeiffer v The Queen,[91] a decision concerning a driver who had been consuming alcohol, wherein King CJ said:
In my view, the conclusion which the court must arrive at, to the exclusion of any reasonable doubt, is that the loss of control of the vehicle which resulted in that behaviour[92] was caused by the effects of alcohol upon the appellant. I think that it is necessary to go no further. To drive a motor vehicle on a road so affected by liquor as to be incapable of exercising effective control of the vehicle is itself driving in a manner dangerous to the public.
[91] (Unreported Court of Criminal Appeal, South Australia, King CJ, Cox J, Olsson J 11 December 1990).
[92] Described as “the vehicle left the bitumen surface of the road, travelled for 106 metres with its near side wheels off the bitumen surface and then travelled across the bitumen surface on to the other side of the road and subsequently overturned.
In relation to the second of the ways the evidence could be used White J said:
The second use of evidence of alcohol or drug consumption occurs when the evidence does not establish an actual incapacity to drive but simply that the alcohol or drugs may have had the effect of impairing the driver’s faculties. If the jury is satisfied that there was some impairment of the faculties by alcohol or drug consumption, it may use that evidence when considering whether the manner of driving which is proved by the evidence was dangerous. The jury may conclude that impairment caused by the alcohol or drugs may explain the manner of driving. It may conclude that the impairment increased the risks arising from the manner of driving, for example, by reducing the driver’s ability to respond to any change of conditions or circumstances which may arise. That is why alcohol or drug consumption, and the impairment which it may have produced are to be considered as part of all the circumstances of the driving.
In R v Greenham,[93] Cox J said:
The relevant element of the offence created by s 19a is the dangerous driving, not the cause of it. The jury will be called upon to make a qualitative judgment about a defendant's manner of driving in the light of all the circumstantial evidence. Typically there will be one or more acts of overtly bad or at least questionable driving — high speed, veering across the road, poor lookout and so on — and sometimes evidence of a causative or explanatory kind as well. For instance, the defendant may have told someone before he got into his car that he was having trouble keeping awake, or his driving error may have coincided with his using a mobile telephone, or there may be evidence of an alcohol intake which, according to an expert, could have affected the defendant's driving faculties. The jury may take the alcohol evidence into account if, after considering all the evidence including the act or acts of driving, they are satisfied that the alcohol had an influence on the defendant's manner of driving.
[93] (1997) 25 MVR 495 at 500.
Expert opinion
There was no dispute that both Professor White and Dr Robertson are eminently qualified to give evidence concerning the use of methylamphetamine and its effect on driving. While it would appear that the opinions expressed are so disparate, no conclusion could be reached as to the effect, if any, the methylamphetamine had on the accused’s driving, closer analysis of their evidence allows for such findings.
In this case we know the level of methylamphetamine at the time of driving and have observations of the accused’s driving, that is, initially driving in an unremarkable way and then veering at a constant speed without an application of brakes before the collision. The expert evidence is in my view of assistance in determining whether the accused was someone accustomed to using the drug and the timing of his ingestion.
I am satisfied from the expert evidence of both Professor White[94] and Dr Robertson[95] that the accused can be said to have had some tolerance to methylamphetamine and was not a first time user.
[94] T76.
[95] T106.
In his evidence, Professor White gave two alternative scenarios, dependant on the time the methylamphetamine was ingested, for how the accused’s manner of driving came about. The first was based on an assumption the accused had used the drug on the morning of the collision. He would, according to Professor White, be stimulated and been distracted and or have taken increased risks. He described users at higher than therapeutic levels, as concentrating too much on one particular thing, and not monitoring where the vehicle is going and diverting their path. I also note Professor White’s evidence regarding cases where methylamphetamine users have ‘drifted’ off the usual path.[96] Dr Robertson said he had not seen a ‘maintained distraction’ as a common description of methylamphetamine stimulation and while he could not say that the accused had used methylamphetamine that morning, his driving did not fit with what he would expect to see from a driver in the stimulated phase, as this was not risk taking behaviour. Drifting across a lane in a fairly constant direction and without braking is he said, simply inconsistent with a stimulated driver.
[96] T59.
Was the accused affected?
Professor White accepted that a conclusion could not be reached about the precise effect on an individual without more information than what we have in this case, but did not accept there would be no effect from the drug at the level found in the accused’s blood. Dr Robertson was prepared to concede that there may be negative effects and conceded that he would not encourage a user of methylamphetamine to drive. A position not inconsistent with what Professor White has said.
Professor White’s second scenario as to how the accused’s driving could be explained was that the accused had taken the drug the previous day or evening, and while he would not have fallen asleep, he could be feeling exhausted, failed to properly monitor what was happening around him and failed to keep the vehicle under control.[97] Dr Robertson agreed the accused possibly veered into oncoming traffic because he was simply exhausted.
[97] T65.
In my view, the observations of the accused’s driving are entirely consistent with the accused either using the drug the day or evening before the collision and falling asleep or being so exhausted that he failed to keep the vehicle under proper control.
As set out above, in further submissions, counsel for the accused submitted that voluntariness was defeated by the evidence in this case and the prosecution had not established beyond reasonable doubt that the accused’s driving was willed or voluntary. Dr Robertson allowed for the possibility the accused had fallen asleep, noting that his research into cases where no braking had occurred, revealed the driver was asleep or had an acute medication situation. Professor White, did not accept the accused could have fallen asleep with the level of methylamphetamine found in his blood.
As discussed in Kroon v R,[98] the offence of causing death or injury by dangerous driving, or driving without due care, can only be committed if the driving is a voluntary act. At page 478, King CJ said with respect to an accused who denied having fallen asleep but where there appeared no other explanation for his vehicle colliding head on with another vehicle:
It is clear on the authorities, and on principle, that to constitute the offence, there must be a voluntary act of driving. Where the driving or apparent driving is deprived of its voluntary character by, for example, automatism or unconsciousness, the offence is not committed.
(Authorities omitted)
[98] (1990) 55 SASR 476.
And later, at 479:
It seems to me, however, that he cannot be convicted, in respect of a period during which he is asleep, of driving without due care, not because he is exercising due care, which, while asleep, he plainly is not, but because he is driving the vehicle involuntarily and not in consequence of an exercise of the will. Likewise I am of opinion that a driver cannot be convicted of causing death or bodily injury by dangerous driving in respect of a period during which the driver is asleep.
In Jiminez v The Queen,[99] the majority judges of the High Court said that:
If the applicant did fall asleep, even momentarily, it is clear that while he was asleep his actions were not conscious or voluntary (an act committed while unconscious is necessarily involuntary) and he could not be criminally responsible for driving the car in a manner dangerous to the public. The offence of culpable driving is, in this respect, no different to any other offence and requires the driving, which is part of the offence, to be a conscious and voluntary act.
[99] (1992) 173 CLR 572 at 577.
However, in a collision caused by a driver who falls asleep, the circumstances in which they came to be asleep becomes important.
In Kroon[100] 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 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, …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 warn him to stop the vehicle. The cases must be rare in which a driver who falls asleep can be exonerated of driving without due care, at least in the moments preceding sleep.
The more 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 added responsibility arising from the fact that the accused was in control of a heavy vehicle capable of causing great damage might be a very important factor.’
[100] At [480].
When speaking with approval of King CJ in Jiminez the High Court said:[101]
As King C.J. recognises, where the question is whether a driver who falls asleep at the wheel is guilty of driving in a manner dangerous to the public, the relevant period of driving is that which immediately precedes his falling asleep. Not only must the period be sufficiently contemporaneous with the time of impact to satisfy the requirement of s.52A but the driving during that period must be, in a practical sense, the cause of the impact and the death. The relevant period cannot be that during which the driver was asleep because during that time his actions were not conscious or voluntary. And, for the reasons which we have given, if the driver's actions upon waking up amount to no more than an attempt to avoid an accident, it cannot be that period of driving.
The manner of driving encompasses “all matters connected with the management and control of a car by a driver when it is being driven”. For the driving to be dangerous for the purposes of s. 52A there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention. Although a course of conduct is involved it need not take place over any considerable period. Nor need the conduct manifest itself in the physical behaviour of the vehicle. If the driver is in a condition while driving which makes the mere fact of his driving a real danger to the public, including the occupants of the motor vehicle, then his driving in that condition constitutes driving in a manner dangerous to the public. In the same way, driving a motor vehicle in a seriously defective condition may constitute driving in a manner dangerous to the public, even though the defect does not manifest itself until such time as the vehicle is out of the control of the driver. But it should be emphasized, and it must always be brought to the attention of the jury, that the condition of a driver must amount to something other than a lack of due care before it can support a finding of driving in a manner dangerous to the public. Driving in that condition must constitute a real danger to the public. As Barwick C.J. said in McBride v.R:
“The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.”
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 dangerous” 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.
(my emphasis)
[101] At [578].
If it were the case that the accused fell asleep, and during sleep his driving is thereby involuntary, the question is whether his driving before falling asleep could be found to be driving in a manner dangerous to the public.
In Jiminez v R,[102] the majority of the High Court said that:
It does not necessarily follow that because a driver falls asleep he has had a sufficient warning to enable him to stop.
It is necessary for the prosecution to prove beyond reasonable doubt that the accused ‘was affected by tiredness to an extent that, in the circumstances, his driving was objectively dangerous.’
[102] Ibid at 581.
Put simply, was it dangerous for the accused to drive before he veered off, because he was liable to fall asleep?
I am satisfied beyond reasonable doubt the accused had used methylamphetamine previously and had used methylamphetamine the day or evening before the collision occurred. In those circumstances, the amount he had used would have been significant. As an experienced user, he knew that one of the effects of the drug is to initially cause sleeplessness and hyper-arousal and then in certain circumstances, render him fatigued or liable to fall asleep.
His driving in such a state presented a real danger to the public, including the passengers in his vehicle, which he ought to have recognised.
Findings
Save the accused deliberately driving into the stobie pole, the inference to be drawn from the manner of the accused’s driving is that he either fell asleep or was exhausted so as to be unable to maintain effective control of the vehicle and concentrate on his driving. While the experts differ as regards the accused having fallen asleep, in either case, he lost control of the vehicle at a time when he would have been aware he was liable to either fall asleep or be unable to maintain proper control of the vehicle because of exhaustion.
In my view it is open on the evidence to find that the accused comes within the cases that White J described in Duryea[103] as ‘uncommon’ in that the accused was driving while so affected by the methylamphetamine that he was simply incapable of exercising effective control of the vehicle, despite the period of time when his driving was observed to be otherwise unexceptional. If I am wrong with respect to that conclusion, I am satisfied the accused was from the time immediately before the vehicle began veering from the ordinary course of direction, grossly impaired by methylamphetamine.
[103] Ibid at [25].
In either case, I am satisfied beyond reasonable doubt that the accused drove in a manner which was dangerous to the public, there being no other reasonable hypothesis for the manner of his driving. The accused subjected the public to risk over and above that ordinarily associated with the driving of a motor vehicle.
I am satisfied beyond reasonable doubt that the accused’s manner of driving was dangerous to the public and caused the death of Bao Han Nguyen Le and harm to Nguyen Le. I am further satisfied that the circumstance of aggravation has been proved in relation to each charge.
Conclusion
Count 1: aggravated causing death by dangerous driving - Guilty
Count 2: aggravated causing harm by dangerous driving - Guilty
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