R v Wells - [2017] SASCFC 6

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WELLS
[2017] SASCFC 6
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Lovell)
13 February 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA
Application for permission to appeal against conviction.
The applicant was found guilty by a District Court Judge sitting alone of aggravated causing harm by dangerous driving.
The applicant’s vehicle veered off Sturt Highway onto the grass verge and collided with the driver of a parked utility, who suffered serious injuries as a result. Based on a blood sample taken after the collision, the applicant had about 0.66 milligrams per litre of methylamphetamine in his blood at the time of the collision.
The principal issue at trial was voluntariness. The prosecution case was that the applicant’s use of methylamphetamine was the cause of the collision. The respondent’s case was that there was a reasonable doubt that he suffered an episode of complex partial seizure (CPS) which was the cause of the collision.
The prosecution called as eye witnesses the victim, his passenger and Mrs Robertson who arrived at the scene of the collision soon after it occurred. Mrs Robertson gave evidence that the applicant told her that before the collision he had seen a man near the back of the car.
After the collision, the applicant attended on a general physician, Dr Marantos, who diagnosed him as suffering from complex partial seizures and expressed the opinion that it was possible that he suffered a CPS immediately before the collision. The applicant called Dr Marantos to give evidence. The applicant called his son who gave evidence of observations of his father losing consciousness momentarily on several occasions before the collision. The applicant gave evidence that he had not used methylamphetamine for several months before the collision and also that he had no recollection of the events on the day of the collision after being at work in the morning.
The trial Judge rejected the applicant’s evidence. The trial Judge considered that Dr Marantos’ opinion was largely vitiated by the false history provided by the applicant and by Dr Marantos’ lack of knowledge of the effects of methylamphetamine. The trial Judge was satisfied beyond reasonable doubt that the applicant did not suffer an episode of CPS immediately before the collision and that the cause of the collision was his use of methylamphetamine.
Held by Blue J, Kourakis CJ and Lovell J agreeing (dismissing the appeal):
1. The Judge did not err in her Honour’s treatment of Dr Marantos’ opinion evidence and in particular the Judge did not err:
(a) in her Honour’s assessment of the applicant’s son’s observations (at [51]);
(b) in her Honour’s assessment of the effect of the applicant’s dishonesty to Dr Marantos and Dr Marantos’ limited understanding of the effects of methylamphetamine upon Dr Marantos’ opinion concerning CPS (at [59]);
(c) in her Honour’s use of the circumstance that there were no tests that supported the CPS diagnosis (at [62]);
(d) in her Honour’s consideration generally of Dr Marantos’ opinion (at [66]).
2. The Judge did not err in relation to her Honour’s rejection of the applicant’s evidence (at [75]).
3. The Judge did not err in her Honour’s assessment and use of Mrs Robertson’s evidence (at [81]).
4. The guilty verdict is not unreasonable or not capable of being supported by the evidence (at [92]).
5. Appeal dismissed (at [93]).
Criminal Law Consolidation Act 1935 (SA) s19A; Road Traffic Act 1961 (SA) s 47BA, referred to.

R v WELLS
[2017] SASCFC 6
Court of Criminal Appeal: Kourakis CJ, Blue, Lovell JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Blue J.
BLUE J: This is an application for permission to appeal against conviction.
The applicant, Martin Wells, was charged in the District Court with one count of aggravated causing harm by dangerous driving[1] and one count of driving while there was present in his blood a prescribed drug, namely methylamphetamine,[2] on 23 March 2013.
[1] Criminal Law Consolidation Act 1935 (SA) subsection 19A(3).
[2] Road Traffic Act 1961 (SA) subsection 47BA(1).
The applicant pleaded guilty to count 2 and not guilty to count 1. The applicant elected to be tried by Judge alone. The principal issue at trial was voluntariness.
On 23 March 2013, the applicant was driving his Holden Barina hatchback on the Sturt Highway near Shea-oak Log travelling towards Adelaide. He veered off the road and collided with a Mitsubishi Triton utility, which had pulled over onto the grass verge well off the road. He also collided with the driver of the utility, Mr Kondoprias, who suffered serious injuries, including a broken arm and two broken legs.
A blood sample was taken from the applicant two hours after the collision, which showed that he had 0.56 milligrams per litre of methylamphetamine in his blood.
The prosecution case was that the applicant drove in a culpably dangerous manner by driving after having consumed a relatively large quantity of methylamphetamine which impaired his driving ability and this was the cause of his veering off the road and colliding with Mr Kondoprias. The defence case was that it was a reasonable possibility that the applicant suffered a complex partial seizure while driving and this was the cause of the collision.
The prosecution called a pharmacologist, Professor White, who gave evidence that the applicant’s blood methylamphetamine reading was relatively high and use of methylamphetamine before driving at the level evident from the applicant’s blood reading was capable of causing tunnel focus and loss of concentration that could cause the driver to allow his vehicle to veer gradually off the road.
Statements by Mr Kondoprias and Mr Plarinos were tendered by the prosecution as their evidence. Mr Kondoprias said that he was walking towards the back of the utility when he heard his passenger, Mr Plarinos, yelling something and after that he had no recollection. Mr Plarinos said that he saw the Barina veering over the left white line heading towards the utility when it was about 50 metres away; he yelled out to Mr Kondoprias and then took evasive action.
The prosecution called Ms Robertson who gave evidence that she spoke to the applicant after the collision. In the course of their conversation, the applicant said that he saw a gentleman behind the car and as he was coming up he saw the gentleman coming around the side.
The applicant gave evidence denying that he used methylamphetamine during at least the nine months leading up to March 2013. He said that he had no recollection of the collision, his last recollection of events on 23 March 2013 being working on the mudguards of a tanker at work in the morning, and that he had no further recollection until he was at his mother’s house and was told by his son that he had picked him up from hospital after a collision.
The applicant called his son, Matthew Wells, who gave evidence that he had observed his father losing consciousness momentarily on several occasions prior to 23 March 2013 and on regaining consciousness his father had not been aware of what had occurred.
The applicant called a general physician, Dr Marantos, who gave evidence that he first saw the applicant, in company with his son, on 1 May 2013. In due course, Dr Marantos diagnosed the applicant as suffering from complex partial seizures (CPS), a mild form of epilepsy. Dr Marantos expressed the opinion based on certain assumptions put to him that it was possible that the applicant suffered a CPS immediately before the collision.
The Judge was satisfied beyond reasonable doubt that the applicant’s driving immediately before the collision was voluntary and that he did not suffer a complex partial seizure that resulted in the collision. The Judge was satisfied beyond reasonable doubt that the applicant’s driving was impaired by the methylamphetamine that he had consumed and that he drove in a culpably dangerous manner by driving while under the influence of methylamphetamine.
The applicant seeks permission to appeal on six grounds:
1.Where there was no expert evidence in the field of CPS or complex medical diagnosis to contradict Dr Marantos’ opinion that a CPS was possibly the cause of the driving, it was an error to find that Dr Marantos’ opinion should not be relied upon on the basis that:
(a)     the accused was dishonest to Dr Marantos, most notably in regard to his methylamphetamine consumption;
(b)     there are no tests to support CPS diagnosis; and
(c)    Dr Marantos had a very limited understanding of the effects of methylamphetamine.
2.It was an error to treat Matthew Wells’ observations of his father as unsupportive of Dr Marantos’ opinion.
3.It was an error, in assessing Dr Marantos’ diagnosis, to focus only on the aspects of it that related to the cause of the falling asleep to the exclusion of the other matters relevant to reaching the diagnosis.
4.It was an error to reject CPS as a possible cause of the driving because evidence of the accused was not accepted that:
(a)     he had not relapsed into methylamphetamine consumption prior to the collision, such that he was a regular and significant user of methylamphetamine by 23 March 2013; and
(b)    his last memory on the day of the collision was working the tipper and that he had no recollection about the day before or after.
5.It was an error to reject CPS as a possible cause of the driving on the basis that a statement was made by the accused to Ms Robertson to the effect that he had seen a man “behind the car and, as he was coming up he seen him coming around the side”. The evidence was not sufficiently clear or reliable to be satisfied that, at the relevant time, the accused “had to be conscious”.
6.The verdict of not guilty was unreasonable and not capable of being supported by the evidence.
Background
The applicant commenced using methylamphetamine at the age of 17. In 2005, following a motor bike collision, he increased his usage to two or three points (0.1 of a gram) on a daily basis. From that time (if not earlier), he usually injected it.
The applicant gave evidence that in 2009 he stopped using methylamphetamine because of concerns raised with him by his sons. He gave evidence that he only used it on two occasions after that time, once in around 2011 and once in the first half of 2012. This evidence was contested by the prosecution, who contended that the applicant was still a regular user of methylamphetamine leading up to the March 2013 collision.
In February-March 2013, the applicant was living with his mother at her house in Para Hills. He was 52 years old. He was a welder/sheet metal worker. In late February 2013, he commenced employment at Nuriootpa repairing and welding tipper trailers. His working hours were from 8.30 or 9.00 am until 4.30 or 5.00 pm on Monday to Friday. On occasions he was asked to work on Saturday mornings. He travelled to and from work on each day that he worked.
On 25 February 2013, on the way home from work at Nuriootpa, the applicant entered the Sturt Highway on-ramp from Greenock Road and collided with the guard rail.
On Friday 22 March 2013, the applicant called into a friend’s place near Nuriootpa for a barbecue after work. The applicant gave evidence that he did not drink any alcohol, having given it up years ago. He said that he did not consume any methylamphetamine (that he recalled).
The applicant gave evidence that on Saturday 23 March 2013 he drove to Nuriootpa to work. He had a recollection of working on the mudguards of a tipper trailer. He had no recollection of events after that time.
Mr Kondoprias and Mr Plarinos were travelling in Mr Kondoprias’ utility on Sturt Highway towards Adelaide. They stopped at about 3.00 pm for a toilet break. Mr Kondoprias pulled over to the left side of the road, all the way off the road onto the grass verge. The Sturt Highway at that point is a dual carriageway, each carriageway comprising two lanes with a bitumen verge, then a gravel verge, then a grassland verge. Mr Kondoprias walked towards the back of the utility. He heard Mr Plarinos yell something. He was conveyed by helicopter to the Royal Adelaide Hospital. He had no recollection of events after hearing Mr Plarinos yell until he woke up in hospital, apart from a recollection of hearing the helicopter.
Mr Plarinos glanced at Mr Kondoprias when he was near the rear wheel walking to the back of the vehicle. At that point he saw the Barina coming towards the utility. He estimated that the Barina was about 50 metres away. The Barina was driving over the left white line and heading directly towards the utility. When the Barina was about 25 metres away, Mr Plarinos yelled “Look out, look out!” Mr Plarinos jumped into the bushes and did not see the collision but saw its aftermath.
Ms Robertson arrived at the scene soon after the collision occurred. She saw the applicant in the Barina. He kept telling her that he wanted to get out of the car and she tried to convince him to stay because she was not sure about his injuries. He eventually got out of the car and they sat talking. She asked him if he wanted her to call anyone and he said that he wanted his mother called. They tried to telephone his mother with his mobile phone but she did not answer. They had a continuous conversation in the course of which there was discussion about the crash.
Ms Robertson gave evidence at the trial that “he said that he did see a gentleman behind the car and, as he was coming up, he seen him coming around the side”. Ms Robertson agreed in cross-examination that she had given a statement to the police on 17 October 2013 during which she had told the police that the applicant “said he had seen someone at the back of the ute and that he had been walking towards the driver’s door when he hit him.”
Mr Tebbett, an ambulance service paramedic, attended at the scene of the collision. He observed that the applicant had sustained a laceration to his head and had some mild confusion.
Dr Price treated the applicant at the Royal Adelaide Hospital commencing at about 4.53 pm. The applicant told her that his injuries occurred as a result of his being a driver involved in a motor vehicle accident. She observed that he was mildly confused with possible concussion.
On 1 May 2013, the applicant consulted Dr Marantos. Dr Marantos was told by the applicant that he had previously used alcohol and recreational drugs, including methylamphetamine, but he did not say that he was a current or recent user (and his evidence was that he had not in fact used methylamphetamine since the first half of 2012). Dr Marantos was told by Matthew Wells that since Christmas 2012 there had been occasions when his father suddenly stopped talking for a few seconds, then woke up spontaneously and carried on with what he was doing; that his father was not aware of the event, and sometimes his eyes rolled up or closed. Dr Marantos conducted a physical examination which was relevantly normal. He made a provisional diagnosis that the history suggested CPS and that obstructive sleep apnoea may be contributing. He ordered an MRI and prescribed Tegretol, an anti-epileptic.
Dr Marantos saw the applicant again on 9 May 2013. The MRI had been conducted and showed no abnormality symptomatic of CPS, although an MRI performed on a person suffering CPS does not necessarily disclose abnormality. The MRI did show a small area of blood around the surface of the brain, which Dr Marantos attributed to the collision but did not consider that it would have caused a loss of consciousness. Dr Marantos doubled the dose of Tegretol.
Dr Marantos saw the applicant again on 29 May 2013. Dr Marantos noted that there had been no further episodes and the applicant’s partner had not noticed any turns.
The Judge’s reasons
The Judge summarised the facts and the evidence. The Judge summarised the evidence of Professor White, who said that methylamphetamine is a stimulant. If the applicant’s blood methylamphetamine reading was 0.56 milligrams per litre two hours after the collision and he had not used methylamphetamine in the meantime, his reading was probably 0.66 milligrams per litre at the time of the collision. This is a high reading. In broad terms, following usage of methylamphetamine, there is a stimulating phase, followed by a rebound phase. During the early part of the stimulating phase, a user typically feels euphoria. While the level is still relatively high, often during the stimulating phase but after the initial euphoria, the user experiences negative effects including tunnel focus (excessive focus on one thing to the exclusion of all others), paranoia or other psychotic symptoms. During the rebound phase, the user experiences fatigue and may fall asleep. Professor White said that veering off the road for no apparent reason represented at least 50 per cent of the causes of motor vehicle collisions where methylamphetamine was involved.
The Judge summarised the evidence of Dr Robertson, a pharmacologist called by the applicant to give evidence. Dr Robertson largely gave similar evidence to that given by Professor White. Dr Robertson said that he was not familiar with tunnel focus. However, unlike Professor White, he considered that the collision might have been caused by the applicant being in the rebound phase (or withdrawal phase as he termed it).
The Judge made an adverse credit finding in relation to the evidence of the applicant. The Judge said that he was an unsatisfactory witness; he prevaricated, was untruthful and unconvincing. The Judge rejected the applicant’s evidence that he had not relapsed into using methylamphetamine after the first half of 2012 and found beyond reasonable doubt that he was regularly using methylamphetamine prior to the collisions in February and March 2013. The Judge found that the applicant withheld this information from Dr Marantos, was dishonest with Dr Marantos and lied in his evidence about it. The Judge rejected the applicant’s evidence that his last memory on 23 March 2013 was working on the tipper. The Judge referred for example to the history taken by Dr Marantos on 1 May 2013 that the applicant recalled getting into the car after shopping (extraneous evidence showing that he had gone shopping after he ceased work on that day).
The Judge referred to the evidence of Matthew Wells in the following terms:
When Matthew Wells was giving the history to Dr Marantos, he said he had first made his observations at about Christmas 2012. However in evidence, he was less certain about the times and thought it could have been 9 months to a year prior to the collision in March 2013, but noticed his father being dazed around Christmas time. The description given by Matthew Wells in evidence, of his observations of his father “falling asleep,” was very different from the history recounted by Dr Marantos. In court, he demonstrated the accused falling asleep with his head nodding forward and losing tone. This is, according to Dr Marantos, inconsistent with a CPS. During a CPS a person may look forward, stare or eyes roll back. The clear description by Matthew Wells in evidence was seeing a person who fell asleep.
The regularity with which Matthew Wells appears to have observed these events, being every time he saw his father during this period of time, also makes it unlikely, in my view, that the explanation for what he was describing was always a CPS, rather than perhaps a number of events occurring, including the withdrawal stage of methylamphetamine use.

The Judge was satisfied beyond reasonable doubt that the applicant did not suffer a CPS shortly before the collision. The Judge said:
I find that [the applicant] was dishonest when he gave his history to Dr Marantos. Dr Marantos has relied upon the history of both accused and his son to diagnose CPS, as he must. However, his diagnosis is only as good as the history given. In this case I find that there were significant deficiencies, the most notable of which was in relation to the untruths or “gaps” regarding the accused’s consumption of methylamphetamine. There are no medical tests that support the diagnosis of CPS. Dr Marantos has a very limited understanding of the effects of methylamphetamine and the different stages associated with its use, and frankly admitted so when he gave evidence.
The opinion of Dr Marantos was based on the assumptions that he was asked to make in relation to the condition of the accused, at a time proximate to the collision. These assumptions included that the accused was not a regular user of methylamphetamine. It is not possible that the accused was a naïve user at the time. It would be impossible to have achieved these levels and be functioning without an awareness of his own intoxication. Dr Marantos does not have a good understanding of the effects of the proven level of methylamphetamine. Indeed it seems to have played no real part in relation to his opinion or diagnosis.
The question of the conversation between the accused and Ms Robertson was not raised with Dr Marantos in evidence in chief. In cross examination he said that it was possible for the accused to have seen a man at the back of the car to then suffer a CPS and veer off the road but if he veers off while seeing the man then that is not consistent with a CPS.
I have reservations as to whether the accused has even suffered from CPS. However it is not necessary for me to decide this issue. Even if the diagnosis of CPS is correct, I reject beyond reasonable doubt that the accused suffered from a CPS event proximate to the collision.
I am satisfied that a statement was made by the accused to Ms Robertson shortly after the collision, to the effect that he had seen a man “behind the car and, as he was coming up he seen him coming around the side.” In cross-examination it was put to Ms Robertson that in statement she gave to the police on 17 October 2013 she said “during part of our conversation, the male said he had seen someone at the back of the ute and that he had been walking towards the driver’s door when he hit him.” Ms Robertson agreed she had said that to the police.
I am satisfied that the statement of AP accurately describes his observations. When AK was nearing the rear of the vehicle the accused was already veering off the road. To have seen AK in this position at that time the accused had to be conscious. There is no doubt that the veering manoeuvre had already commenced when AP first saw the vehicle.
I am satisfied beyond reasonable doubt that the accused was at all stages conscious and aware, but impaired by the effects of a voluntarily consumed quantity of methylamphetamine.
The diagnosis of Dr Marantos
The first three grounds relate to the Judge’s treatment of the opinion evidence given by Dr Marantos.
Reliance on Matthew Wells’ observations
Ground 2 is that it was an error to treat Matthew Wells’ observations of his father as unsupportive of Dr Marantos’ opinion.
Dr Marantos relied to a large degree on his understanding of Matthew Wells’ observations as described to him during the first consultation on 1 May 2013. This was, Dr Marantos said, because the tests undertaken by him did not indicate epilepsy and often patients suffering CPS are unaware of the episodes and cannot provide a reliable history.
The Judge found that the assumption made by Dr Marantos, based on his understanding of the history obtained from Matthew Wells which formed the principal foundation for his diagnosis of CPS, was not supported by the evidence given by Matthew Wells of his observations. Dr Marantos said that his understanding was that the applicant did not nod off, losing muscle tone, but rather maintained muscle tone, with his eyes staring ahead blankly, shutting or rolling up. Dr Marantos said that loss of muscle tone was inconsistent with a person suffering a CPS and consistent with a person falling asleep or suffering some other condition. The Judge found that Matthew Wells observed the applicant falling asleep and losing muscle tone.
The applicant contends that the Judge erred in making the finding about what Matthew Wells observed based on his evidence and should have found that Matthew Wells described two quite different types of events, one being of his father falling asleep or nodding off, and the other being of his father maintaining muscle tone and his eyes merely rolling back.
I have reviewed the transcript of Matthew Wells’ evidence to discern whether he was describing a single type of event consistent with his father falling asleep with a degree of variability about the duration and extent of the episode on the one hand, or two distinct and different types of event as submitted by the applicant on the other hand.
Matthew Wells said that in 2012/2013 he visited his father at his grandmother’s house periodically, sometimes weekly and sometimes not so often. He noticed that his father appeared very tired. He observed on occasion his father falling asleep, nodding off mid-conversation, while they were talking. Matthew Wells demonstrated to the Judge what happened when his father nodded off by allowing his head to tilt forward.
Matthew Wells said that, when he was a child, his father worked long hours and he remembered his father falling asleep on the toilet, in the bath and in similar situations. When he saw his father falling asleep in 2012/2013, it was similar to what had occurred when he was a child. He ascribed the reason for his father falling asleep that he was tired.
Matthew Wells said that the time for which his father nodded off varied from a couple of seconds to a substantial part of a minute. When he awoke, sometimes he continued talking where he left off and other times he appeared to be a bit dazed as if he had just woken up. In general terms, this correlated with the length of time that he had been asleep.
When Matthew Wells first started noticing his father nodding off, he saw his eyes closing for a bit. Later on, on some occasions he noticed his father’s eyes rolling back as opposed to closing. On those occasions when he saw his father’s eyes rolling back, he thought that he was nodding off or sleeping. He likened it to people falling asleep on the train.
On occasions before the 23 March 2013 collision, Matthew Wells pointed out to his father what was happening and suggested that maybe he should have a rest; however, his father was never one for resting.
After the 23 March 2013 collision, Matthew Wells became concerned that the February and March collisions might have been the result of his father nodding off and suggested that his father see a doctor.
As the Judge found, there is a marked contrast between Matthew Wells’ description in evidence of his father nodding off and Dr Marantos’ description of persons suffering a CPS. Dr Marantos said that typically a person suffering a CPS stares ahead blankly. He said that on occasions the eyes may shut or roll back as opposed to looking blank but in all cases muscle tone is maintained and the person does not appear to be asleep.
Dr Marantos gave his evidence by reference to his notes and did not demonstrate an independent recollection of the history he took from Matthew Wells other than what was recorded in his notes. The entirety of his note of what he was told by Matthew Wells on 1 May 2013 was as follows:
Quite a while talking, suddenly stop talking. Eyes may roll up or close eyes. Duration is a few seconds only and he wakes up spontaneously. After an event he is not aware of the event. He carries on with what he was doing. Son had not noted any change in breathing, colour, vis a vis automatic behaviour. Son felt that these episodes had been present since Christmas and increasing frequency.
The nature and detail of Matthew Wells’ observations were explored in greater breadth and depth during his evidence than during Dr Marantos’ consultation. While Dr Marantos formed the impression that Matthew Wells had observed the typical symptoms of CPS, as the Judge found this was not borne out by Matthew Wells’ evidence. In particular, Matthew Wells did not describe two different and distinct phenomena, in one of which his father nodded off and in the other of which his father looked blank and maintained muscle tone.
On a review of the transcript of Matthew Wells’ evidence, it was open to the Judge to conclude that the description given by Matthew Wells in evidence of his observations of his father “falling asleep” was very different from the history recounted by Dr Marantos and that the clear description by Matthew Wells in evidence was seeing a person who fell asleep. In addition, the Judge had the advantage of seeing and hearing Matthew Wells give evidence, including gestures and demonstrations of what he saw which are not necessarily reflected in the transcript.
Effect of applicant’s dishonesty and role of methylamphetamine
Grounds 1(a) and (c) are that it was an error to find that Dr Marantos’ opinion should not be relied upon on the basis that the applicant was dishonest to Dr Marantos, most notably in regard to his methylamphetamine consumption, and that Dr Marantos had a very limited understanding of the effects of methylamphetamine.
Dr Marantos gave evidence that he had very limited knowledge of, or experience in relation to, methylamphetamine. He knew that there are a number of drugs known to be associated with increasing the risk of a seizure and that amphetamines are not in that group of drugs. He had seen patients suffering acute symptoms as a result of overdoses. He had a general understanding that methylamphetamine can make persons more erratic in their behaviour and hyped up, although he did not have first-hand experience of this. He did not know the symptoms of methylamphetamine withdrawal. A blood methylamphetamine reading of 0.66 milligrams per litre meant nothing to him.
Dr Marantos was not told by the applicant that he was regularly using methylamphetamine. Dr Marantos did not explore whether the applicant’s symptoms might be explained by methylamphetamine use and did not have the pre-existing knowledge or expertise to make an assessment about this.
In evidence in chief, Dr Marantos was asked to assume that the applicant had methylamphetamine in his system just prior to the 23 March collision of 0.66 milligrams per litre, that he was not regularly consuming methylamphetamine at that time, that his last memory on that day is working on the mudguards of a tanker and that his first memory after the collision is of being at his mother’s house after being discharged from hospital, that the collision occurred on a straight road in good conditions, and that the applicant’s vehicle veered off the road with no attempt to slow down or avoid the vehicle parked on the grassland. Dr Marantos expressed the opinion that the applicant may very well have had a brief episode of loss of consciousness or CPS at that time.
The applicant does not challenge the Judge’s credit findings or the Judge’s factual finding that, despite his denials, he was regularly using methylamphetamine. The applicant does not challenge the Judge’s finding that Dr Marantos had a limited understanding of the effects of methylamphetamine.
The applicant contends that Dr Marantos’ diagnosis was not dependent upon the applicant’s honesty. However, Dr Marantos in fact made his diagnosis in the absence of knowledge of the applicant’s regular use of methylamphetamine and in ignorance of the fact that use of methylamphetamine is capable of causing a collision in the circumstances in which this collision occurred. In addition, the assumptions put to Dr Marantos in evidence in chief that the applicant was not a regular user of methylamphetamine and had no memory of the relevant events were, on the Judge’s unchallenged findings, incorrect. The history and understanding obtained by a doctor from a patient necessarily informs the diagnosis. In this case, Dr Marantos was misled about important matters.
The applicant emphasises Dr Marantos’ qualifications and experience as a physician including seeing patients with complex neurological problems. However, this does not gainsay the limitations on Dr Marantos’ qualifications and experience in relation to the effects of methylamphetamine which were highly relevant in the present case.
The applicant contends that, for Dr Marantos’ opinion to stand as valid, he did not have to rule out matters which were, in his expert opinion, extraneous and capable of coexistence, and in particular the applicant’s methylamphetamine intoxication. A diagnosis is based on a holistic analysis of all relevant information. The absence of critical information about an alternative causation of the symptoms said to be experienced by the applicant necessarily affects the value of Dr Marantos’ diagnosis. This in itself does not render Dr Marantos’ evidence of no probative value, but it does affect the weight the Judge was entitled to give to it in a holistic assessment of the ultimate issue whether the applicant suffered a complex partial seizure shortly before the collision.
No medical tests support CPS diagnosis
Ground 1(b) is that it was an error to find that Dr Marantos’ opinion should not be relied upon on the basis that there are no tests to support the CPS diagnosis.
The applicant accepts that there were no tests to support the CPS diagnosis but emphasises the fact that the tests undertaken also did not negate the diagnosis and that it is not uncommon for this to be the case, hence making the history obtained from witnesses very important.
The Judge’s observation that there were no medical tests that supported the diagnosis of CPS was made in the context of the Judge’s consideration of the history obtained by Dr Marantos from the applicant and Matthew Wells. The Judge did not positively rely on the absence of medical tests supporting the diagnosis as a reason to reject the diagnosis. The Judge was merely observing that, in the absence of such tests, the diagnosis was necessarily largely reliant on the history obtained.
Other matters support CPS diagnosis
Ground 3 is that it was an error, in assessing Dr Marantos’ diagnosis, to focus only on the aspects of it that related to the cause of the “falling asleep” to the exclusion of the other matters relevant to reaching the diagnosis.
The applicant contends that Dr Marantos’ diagnosis was not entirely dependent upon the observations of Matthew Wells. It was also confirmed by Matthew Wells’ evidence that, after his father had commenced taking the Tegretol prescribed by Dr Marantos, he did not observe the types of “black out” events he had previously observed.
Matthew Wells’ evidence in this respect was as follows:
Q. Since seeing Dr Marantos with your father on that occasion, have you observed any of these types of events with your father since that day.
A. No, because he got put on medication for epilepsy, I think it was, so I haven’t observed it like I was observing it, no.
It is not clear from Matthew Wells’ evidence whether he still saw his father nod off on occasion, but not as frequently, or whether he did not see his father nod off at all. Both the applicant and Matthew Wells gave evidence that Matthew had urged the applicant to stop using methylamphetamine in 2009 and Matthew was not aware that the applicant had relapsed. If the use of methylamphetamine had been the cause of the applicant nodding off, the applicant’s not continuing to use it after he saw Dr Marantos would explain why Matthew Wells no longer observed him nodding off. The probative value of Matthew Wells' evidence that nodding off ceased or reduced is dependent on the anterior question what was the cause of the nodding off in the first place.
Grounds 1 to 3 considered holistically
The prosecution case that the cause of the collision was the applicant’s use of methylamphetamine and not a CPS was necessarily a circumstantial case because there was no direct evidence available from any witness (including the applicant) as to what occurred during the seconds before the collision.
The evidence of Dr Marantos was to be assessed like any other piece of circumstantial evidence and then weighed holistically with all of the other evidence to determine whether the prosecution had proved its case beyond reasonable doubt. It was open to the Judge to reach the conclusion that her Honour was not satisfied that the applicant suffered from CPS. It was open to the Judge to reach that conclusion for the reasons given by her Honour. The mere fact that no medical witness expressed an opinion contrary to that expressed by Dr Marantos did not preclude the Judge from reaching that conclusion.
Grounds 1 to 3 are not established.
Rejection of applicant’s evidence
Ground 4 is that it was an error to reject CPS as a possible cause of the driving because evidence of the applicant was not accepted that:
(a)he had not relapsed into methylamphetamine consumption prior to the collision, such that he was a regular and significant user of methylamphetamine by 23 March 2013; and
(b)his last memory on the day of the collision was working the tipper, and that he had no recollection about the day before or after.
The applicant contends that the question of his use of methylamphetamine, regularly or otherwise, did not impact upon Dr Marantos’ opinion about the occurrence of a CPS or the underlying diagnosis; and nor did it depend on the applicant’s honesty. This has been addressed at [52] to [59] above.
The applicant contends that the differences between what he told Dr Marantos on 1 May 2013 and his evidence at trial as to his recollection of 23 March 2013 is confined to two matters. The first is the fact that he remembered shopping and driving off after work when he spoke to Dr Marantos but according to his evidence his last memory before the collision was of working on a tipper’s mudguards. The second is the fact that he remembered waking up in hospital when he spoke to Dr Marantos but according to his evidence his first memory after the collision was being at his mother’s house and being told that he had been discharged from hospital. The applicant contends that these differences are not significant.
However, the Judge rejected the applicant’s evidence generally about his lack of memory of the events on 23 March 2013. The evidence of Ms Robertson, Mr Tebbett and Dr Price showed that the applicant engaged in lucid conversations after the collision. It is not credible that the applicant suffered extensive retrograde amnesia as a result of the limited concussion he suffered in the collision.
The applicant contends that any want of credit on his part in evidence on these two topics did not have the effect of dislodging the weight of Dr Marantos’ opinion. This has been addressed at [52] to [59] and [64] to [66] above.
This ground of appeal is not established.
Ms Robertson’s evidence
Ground 5 is that it was an error to reject CPS as a possible cause of the driving on the basis that a statement was made by the applicant to Ms Robertson to the effect that he had seen a man “behind the car and, as he was coming up he seen him coming around the side”. The evidence was not sufficiently clear or reliable to be satisfied that, at the relevant time, the accused “had to be conscious”.
The applicant contends that Ms Robertson’s evidence was inconsistent with an earlier statement to the police and inconsistent with the evidence of Mr Plarinos.
Ms Robertson gave evidence at trial that the applicant said that he saw a gentleman behind the car and as he was coming up he saw the gentleman coming around the side. It was put to her in cross-examination that her witness statement prepared by the police said that the applicant said that he had seen someone at the back of the utility and that he had been walking towards the driver’s door when he hit him and she agreed that she said that to the police. It was not put in cross-examination that there was an inconsistency between the two versions or that either version was incorrect. These two versions are not in fact inconsistent. The Judge saw and heard Ms Robertson give evidence and it was open to the Judge to accept her evidence.

Mr Plarinos said in his witness statement that he glanced at Mr Kondoprias when he was near the rear wheel walking to the back of the vehicle, when he saw the Barina coming towards him. He estimated that the Barina was about 50 metres away at that point. The Barina was driving over the left white line and heading directly towards the utility. This evidence did not require the Judge to reject Ms Robertson’s evidence. First, Mr Kondoprias may have reached the back of the vehicle by the time that the Barina hit him. Secondly, Ms Robertson was only reporting what she was told by the applicant and the applicant’s perception of Mr Kondoprias’ precise direction of movement may have been inaccurate.
The applicant contends that if, as the Judge found, he saw Mr Kondoprias in the vicinity of the rear of the utility that does not rule out that a CPS was experienced just before or just after this sighting. It is theoretically possible that the applicant suffered a CPS and regained consciousness in time to see Mr Kondoprias in the vicinity of the rear of the utility but the applicant gave no such account to Ms Robertson. Similarly, it is theoretically possible that the applicant suffered a CPS after seeing Mr Kondoprias but again the applicant gave no such account to Ms Robertson. In any event, in a circumstantial case, the evidence of Ms Robertson was to be weighed together with all of the other relevant evidence to determine whether the prosecution had proved beyond reasonable doubt that the applicant did not suffer a CPS shortly before the collision which resulted in the collision.
This ground of appeal is not established.
Verdict unreasonable and cannot be supported having regard to evidence
Ground 6 is that the verdict of guilty is unreasonable and not capable of being supported by the evidence.
The applicant principally relies for this ground on his contention that the Judge erred in one or more of the ways identified in grounds 1 to 5. This contention fails because the applicant has failed on each of those grounds.
As noted above, the prosecution case on the issue of voluntariness was necessarily a circumstantial case and there was no direct evidence adduced by the applicant on that issue because his evidence (albeit rejected by the Judge) was that he had no recollection of events on that day after being at work. The Judge was required to consider all of the individual matters and then to consider them holistically to determine whether the prosecution had proved beyond reasonable doubt that the collision was caused by the applicant’s use of methylamphetamine and was not caused by the applicant’s suffering a CPS shortly before the collision.
The Judge accepted the evidence of Professor White that a person who uses methylamphetamine in sufficient quantity to have a blood methylamphetamine reading in the vicinity of 0.66 milligrams per litre is liable to lose concentration on driving and veer off the road for no rational reason. On the Judge’s finding, which is not challenged, the applicant had consumed a relatively high quantity of methylamphetamine before driving.
The Judge was not satisfied that the applicant was in March 2013 suffering from CPS, although the Judge stopped short of finding beyond reasonable doubt that this was so. In light of the Judge’s finding about the evidence given by Matthew Wells, which for the reasons given above was open to the Judge, and the Judge’s finding that Dr Marantos was misled by the applicant about his regular methylamphetamine use and his recollection of the events on 23 March 2013 and Dr Marantos’ lack of familiarity with the effects of methylamphetamine, which for the reasons given above were also open to the Judge, it was little more than a bare possibility that this was so. The possibility, as opposed to a probability or satisfaction, that the applicant was suffering from CPS was to be weighed in the balance with all of the other evidence relevant to the issue of voluntariness.
The Judge accepted the evidence of Ms Robertson and Mr Plarinos which in conjunction demonstrated that the applicant was conscious at a point when he was veering off the road. The applicant’s account to Ms Robertson did not include any reference to a loss of consciousness.
Having reviewed all of the evidence in light of the Judge’s specific findings, it was open to the Judge to be satisfied beyond reasonable doubt that the collision was not caused by the applicant’s suffering a CPS shortly before the collision.
The applicant contends that, while methylamphetamine may provide a possible explanation for the veering, there is no evidence of any other behaviour indicated by methylamphetamine intoxication as described by Professor White and Dr Robertson which requires explanation if CPS is accepted as a reasonably possible cause for the driving. However, no witness observed the applicant on 23 March 2013 before the collision and the mere absence of evidence of any other symptoms of consumption of methylamphetamine is of no significance.
The applicant contends that Dr Marantos gave evidence that a person suffering a CPS may experience an aura, and in respect of each of the February and March collisions the applicant was reported as having seen the sun in his eyes. Dr Marantos did not refer in his evidence to the types of auras experienced by persons suffering CPS, and did not say that they included visual auras. Dr Marantos did refer to taste or smell but not to sight. Dr Marantos said that the applicant told him that the sun was in his eyes prior to the February collision, but Dr Marantos referred to this as a possible trigger of a seizure rather than as a symptom of it.
Ms Robertson gave evidence that the applicant told her that the sun had been in his eyes. It was not suggested at trial that this was not possible. Dr Marantos did not express any opinion in his evidence that the applicant experienced a visual aura in either February or March 2013 or that this was a symptom of a CPS that he suffered at that time.
This ground of appeal is not established.
Conclusion
I would grant permission to appeal but would dismiss the appeal.
LOVELL J: I agree with Blue J.