Regina v Watson

[2000] NSWCCA 279

CITATION:	Regina v Watson [2000] NSWCCA 279
FILE NUMBER(S):	CCA 60077/00; 60546/99
HEARING DATE(S):	24/07/00
JUDGMENT DATE:	1 August 2000
PARTIES :	Robert G Watson (Appellant) Regina (Respondent)
JUDGMENT OF:	Fitzgerald JA at 1; Smart AJ at 32; Ireland AJ at 33

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/31/0328
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

COUNSEL :	Mr M.J. Finnane QC (Appellant) Mr R. Ellis / Ms P. Hock (Crown)
SOLICITORS:	Ross A Derham & Associates (Appellant) S E O'Connor (Crown)
CATCHWORDS:	Criminal law - appeal against conviction - dangerous driving causing death - misdirection concerning undisputed evidence including expert evidence - third trial without sustainable conviction - appeal allowed - verdict of acquittal entered
LEGISLATION CITED:	Crimes Act 1900
DECISION:	Appeal allowed. Verdict set aside. Conviction quashed. Verdict of Acquittal entered. Prosecution appeal against sentence dismissed.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

CCA 60077/00
CCA 60546/99
DC 96/31/0328

FITZGERALD JA
SMART AJ
IRELAND AJ

TUESDAY 1 AUGUST 2000

REGINA v WATSON

JUDGMENT

1   FITZGERALD JA: Early on Saturday 7 October 1995, the appellant was driving his motor vehicle along Henry Parry Drive, Gosford, on his way to work when the vehicle struck and killed Mr Adam Hiller. The weather was fine, the road surface was dry and visibility was good. Warning signs clearly indicated the presence of workers carrying out road maintenance, and traffic cones protected their working space. Before he was struck, Mr Hiller was standing between white marked lines on the road wearing a reflective vest and holding a traffic control sign. The appellant’s vehicle veered to the right shortly before it struck Mr Hiller. Mr Hiller’s body was carried along on the appellant’s vehicle until it fell off when the vehicle veered to the left. The vehicle hit a gutter and guard rail, moved to the centre of the road, continued for a short distance, stopped briefly, and then moved forward and turned into Shortland Street. 2 Police located the appellant’s damaged vehicle at the President’s Hill lookout later that day. There were blood marks on the vehicle and blood stains on clothing in the vehicle. The route followed by the appellant after he drove into Shortland Street following the accident was not fully established. At one point, he drove into Mann Street, close to the kerb, and his vehicle “… went over the flower bed and then hit a post and tossed up the rail which was across the entrance to the park, … hit some other posts… kept going and went over the path for about 15 to 20 metres before going back onto the road…. continued in a northerly direction, past the Police Station, and turned left, into Georgina Street.” The only other sighting of the appellant’s vehicle after the accident, before it was located at President’s Hill, was in Rennick Street where it was seen to turn onto the Pacific Highway. There is only one road from the bottom of President’s Hill to the lookout. The appellant drove the final 500 metres with one of the tyres on his vehicle deflated. 3 The appellant was charged with dangerous driving occasioning Mr Hiller’s death contrary to s 52A(1)(c) of the Crimes Act 1900. He pleaded not guilty. 4 There have been three trials, each taking about 10 to 12 days. The jury at the first trial could not agree on the appellant’s guilt or innocence, and the second trial had to be aborted because of an improper approach to a jury member towards the end of the trial by a person unconnected with the appellant or the prosecution. The third trial took place before a District Court judge and a jury at Gosford on 9, 10, 11, 12, 13, 16,17, 18, 19 and 20 August 1999. After 3 days deliberation during which the trial judge was informed of a “stalemate”, the jury convicted the appellant at 3.46 on a Friday afternoon, shortly after his Honour had referred to the possibility of an adjournment to the following Monday. The appellant was sentenced on 24 September 1999, and has served part of his sentence of periodic detention. 5 The appellant appealed to this Court, and the Director of Public Prosecutions appealed pursuant to s 5 D of the Criminal Appeal Act 1912 against the appellant’s sentence. The appellant also applied for an extension of time within which to raise additional grounds of appeal. 6 It was unnecessary for the Court to consider the appellant’s additional grounds of appeal or the prosecution appeal against the appellant’s sentence. At the conclusion of the hearing in relation to the appellant’s original grounds of appeal, the Court allowed the appeal, set aside the verdict, quashed the appellant’s conviction, and entered a verdict of acquittal. 7 It was not in dispute that the appellant was driving his motor vehicle dangerously when it struck Mr Hiller causing his death. It was also common ground that the prosecution was required to prove beyond reasonable doubt that the appellant’s dangerous driving occasioning Mr Hiller’s death was voluntary. In the circumstances, that required it to establish that a sudden loss of consciousness or awareness by the appellant prior to his vehicle striking Mr Hiller was not a rational possibility. The prosecution theory is unclear, but might have been that the accident was caused by the appellant’s inattention, perhaps because he was tired. 8 The appellant, who was aged about 19 years at the time of the accident, had been admitted to Gosford Hospital on 29 July 1995 suffering meningococcal meningitis, a serious illness which is sometimes fatal. For survivors, the risk of epilepsy in the first 5 years following infection is between 2.4 and 10 per cent. In September that year, the appellant was advised by his medical practitioner that he could return to work and he did so. He also took a second job, delivering pizzas at night. He was not informed that he might experience epilepsy or that he should not drive a motor vehicle. 9 The appellant’s parents, employer and friends observed that the appellant’s personality and behaviour had altered since his illness and that his physical and mental functioning had deteriorated. He was very tired, forgetful, very vague and, spoke and responded slowly. Whereas he had previously been his employer’s leading apprentice with the ability to operate complex equipment and work to very small tolerances, he could not do so after his illness and had to be given less skilled work. The appellant’s employer and some of his friends recalled the appellant telling them prior to the accident that he had experienced a blackout on 4 October 1995 while driving a pizza delivery vehicle. 10 On Friday, 6 October 1995, the appellant worked at the carpentry and joinery firm where he was apprenticed, returned home and slept for a period, then worked at his second job delivering pizzas, and later went out with friends. 11 The appellant’s mother went to wake him at about 6.20 a.m. on the day of the accident. She saw that he was not in his room but was sitting in his car in the driveway. She went to him and put her hand on his shoulder but he did not respond. She said his name, and he said “work” and drove off. She went inside and said to her husband “There’s something awfully wrong with Robert. We’ve got to go and see if he’s alright”. 12 The appellant’s parents set off in their car, with his father driving. They came to the scene of the accident, which was not far from their home. They stopped and asked what had happened. They were told that there had been an accident caused by a white car which had continued in the direction of Shortland Street. The appellant’s mother sent her husband to see if the appellant had arrived at work and went along Shortland Street looking for the appellant. When she was unsuccessful, she went home. Her husband had returned and told her that the appellant had not arrived at work and they went out looking for him again. It was about 7.20a.m. when they next arrived home and the appellant was there, in the shower. They questioned him but did not get any sensible answers. Some of his clothes were on the floor with dirt and other material on them and a blood stain on one item. When the appellant came out of the shower, he appeared sleepy and looked into space. The appellant’s mother went to the home of the solicitor who represented the appellant in these proceedings, Mr Ross Derham, who conducts his practice in East Gosford. Mr Derham attended at their home and joined in questioning the appellant, who was very lethargic and “sort of staring” and fell asleep at about 11.00a.m. 13 The appellant’s father and Mr Derham gave evidence to similar effect. The appellant’s father also stated that his search for the appellant’s vehicle was unsuccessful, and that the appellant denied having been in an accident and said that he was going to work. The appellant kept falling asleep and waking until he fell asleep at about 11a.m. 14 Mr Derham said that, when he arrived at the appellant’s parents’ home, the appellant’s father was asking the appellant where his car was, where his car keys were and whether he had been involved in an accident. Mr Derham said that the appellant was very tired and was having difficulty keeping his eyes open. He said that his car was in a club carpark and, when told that it was not there, he said that one of his friends must have it. When Mr Derham questioned the appellant, he received similar answers. Mr Derham asked the appellant whether he remembered his mother coming down to wake him in the car and he said that he did not. He said that he knew nothing about an accident and asked whether anybody had been hurt. He said that he could not remember anything about that morning except running through bushes. The appellant appeared exhausted, dozed off from time to time and fell asleep on the couch. 15 The appellant was arrested and charged later that day. Dr Young, a medical practitioner who attended the Gosford Police Station at Mr Derham’s request, considered the appellant fit to be interviewed although he noted that he “looked tired, if not exhausted”. 16 The prosecution did not challenge the veracity of the evidence given by the appellant’s parents, Mr Derham, Dr Young, or the appellant’s employer and friends. 17 The appellant gave evidence that, when he was discharged from hospital, he was very weak, his memory was poor, his coordination and reflexes had worsened and his skill at work had deteriorated. He did not drive after he was discharged from hospital until he recommenced his work at the carpentry and joinery firm in September. On 4 October 1995, he delivered a pizza to a house in Avoca Drive, Green Point, where he helped a woman move a refrigerator. He returned to his car and drove away. He had travelled less than a kilometre when he heard the sound of his car horn and found that his car had veered toward the side of the road. He thought that his head or some part of his body must have hit the horn. He stayed where he was for about 10 minutes to clear his head and then drove back to the pizza outlet. He said that his loss of awareness was only momentary, that he had not felt tired at all beforehand, but that he felt disoriented for a time afterwards. He had not previously had a similar incident. 18 The appellant also said that, after he finished his work delivering pizzas on the night of Friday 6 October 1995, he returned home, showered, ate some food and then drove around with friends. Subsequently, he went to two clubs where he consumed a moderate quantity of beer. There was no evidence that he was adversely affected by alcohol. Later, he walked to the home of a friend who had taken his car at his suggestion, and, for a time, slept in the car, which was a station-wagon in which the seating could be adjusted so that a person could lie down. He then walked to his girlfriend’s home where he was sent away by her father. He returned to his friend’s home where his car was parked, found the keys to his car, drove it to his parent’s home where he parked it in the driveway, and again slept in the car. He remembered waking to go to work early on the morning of the accident. He did not remember sitting in his car in his parents’ driveway or driving out of the driveway of his parents home or anything subsequently until he was running through some bushes. He remembered being in the park across the road from his house, seeing their neighbour, and walking toward him. When he got home, he unlocked it, walked in, removed his clothes and went into the bathroom. He noticed that it was about 7.20 in the morning and entered the shower immediately thinking that he was late for work. He recalled his father knocking at the bathroom door asking him about his car and whether he knew anything about an accident. He said he did not know anything about an accident. He also did not know where his car was. He thought that his car was either at a friend’s house, at a club or at work. He remembered being questioned by his parents and Mr Derham while he was sitting on a couch. He was very tired and falling asleep on his father’s shoulder. He also remembered police later coming to his home and arresting him and subsequent events. 19 Two consulting neurologists and an eminent psychiatrist gave evidence that the appellant had probably suffered an epileptic event immediately prior to the accident and that the probable explanation of his subsequent behaviour was that he experienced further epileptic events and / or was in a post-ictal state. There was substantial agreement between all three medical specialists. The prosecution accepted their expertise and did not call any expert evidence. 20 Broadly stated, the medical experts agreed that an epileptic event involves a disruptive activity in the brain’s neurones which can produce loss of consciousness or varying degrees of lack of awareness or other behavioural changes. A post-ictal state often follows an epileptic event or sequence of epileptic events. Drowsiness, confusion and lack of judgment are common and can continue for a lengthy period. Motor skills and the ability to perform complex tasks might continue during that time. The appellant’s conduct observed by his parents, employer and friends in the period between the meningococcal meningitis he had suffered and the accident indicated an underlying brain disturbance. Alcohol and insufficient sleep were likely to have an adverse effect on a brain in that condition. 21 In his summing up, the trial judge directed the jury that they were “not bound to accept such opinion evidence”. His Honour said: “You are entitled to assess opinion evidence having regard to the facts as you find the facts to have been. You are entitled to accept or to reject such evidence. As the judges of the facts, you give such weight, that means to attach such value, to the opinion evidence as you think that it deserves, having regard to the facts which have been proved to your satisfaction…… The doctors’ opinions are based upon what they were told and you should realise that those opinions are only as value as the facts upon which they are based, that they may have limited value only if those facts have not been proved to your satisfaction.” 22   Although the jury was instructed that the prosecution was required to prove beyond reasonable doubt that the appellant’s “driving was a voluntary act” and that the doctors’ opinions were that “the accused’s driving was not a voluntary act”, the trial judge directed the jury that “… the accused bears an evidentiary onus, burden or obligation … to raise the probability that his driving was an involuntary act…”; “[t]he accused does not have any burden, onus or obligation to prove anything, other than to raise the probability that his act when driving the vehicle was not a voluntary act”; and “the accused … has a burden, onus or obligation to produce evidence to show a reasonable probability that the act was not a voluntary act”. 23   Conformably with the prosecution submissions, the trial judge discussed two broad reasons for the rejection of the expert opinions, one related to the evidence on which they were said to be based and one related to “the surrounding facts”. 24   The jury was directed that the medical opinions relied on by the appellant were “based upon what [they] had been told about the accused both before and after the collision” and depended upon the jury’s acceptance of the appellant’s evidence. It was necessary for the jury “to assess the accused as to whether or not he is a person who is honest, doing his best to tell you, as best his memory allows, of the facts surrounding the incident”. By way of elaboration, the jury was told “that this trial turns upon a conflict between the evidence of what the Crown says that the accused did and the evidence of what the accused said he did and what the witnesses say was his mental state”, and that the jurors would “probably ask yourselves who is to be believed”. It was for the jurors “to decide who it is that you believe. … if, upon your consideration of the evidentiary material, you decide that you prefer the evidence of the Crown’s witnesses, then you must ask yourself ... ‘Does the evidence that we accept satisfy us beyond reasonable doubt of the guilt of the accused?’" 25   Various adverse comments were made by his Honour about the appellant’s evidence, which, the jury was told, “does not show a reasonable probability that his driving was an involuntary act because he claims not to have any memory of his driving.” Most of the matters referred to were of little, if any significance; for example, differences in recollection between the appellant and various of his friends concerning events on the night before the accident with neither version discreditable to the appellant. Insubstantial reasons to doubt the appellant’s account of his movements that night were mentioned. It was pointed out that there was nothing to confirm the appellant’s description of his movements after he left his friends until his encounter with his girlfriend’s father, which is not surprising since the period in question was between midnight and 5am. Despite the expert evidence concerning his mental state, the appellant “had the presence of mind … to take his key from the ignition when he left the car at the top of President’s Hill.” Notwithstanding the unchallenged expert opinion that there was no means of ascertaining the cause of the earlier episode on the night of 4 October 1995 which the appellant had described to his employer and workmates prior to the accident, the judge said that his omission to do anything “from a medical point of view” on that occasion was “unfortunate”. The expert witnesses had “used [that incident] … as part of their assessment or part of the basis of their assessment of the accused’s mental state on 7 October 1995.” The jury would need to consider “whether it was an epileptic fit or falling asleep”. 26   The “surrounding facts” particularly relied on as justifying rejection of the expert evidence concerned the appellant’s driving up to the lookout along a difficult road. The trial judge said:

“The learned Crown prosecutor put to you … that, when you have regard to that, you might think it unlikely in the extreme that the accused was not controlling his vehicle in the sense of doing it consciously. Whether you do or not is for you to decide.
…..
The Crown prosecutor has put to you that when you look at all of that you will be convinced that the driving was a voluntary act, done by or a conscious mind, because to get from the bottom of President’s Hill to the top of it would require careful driving.

….
If however the evidence to which the Crown prosecutor has referred your attention, concerning the accused driving the vehicle from the time when he left the driveway in the house adjacent to his parents’ home to the time when he parked it at President’s Hill, convinces you that that driving was a voluntary act, if the Crown prosecutor has convinced you by the evidence to reject the evidence of the doctors that the driving was not a voluntary act, then you will find that the accused’s driving was voluntary, in other words that he had control over what he was doing. …..”

27   The issue of voluntariness was directly related only to the brief episode of dangerous driving which caused Mr Hiller’s death. Further, the appellant’s subsequent driving, including his driving up President’s Hill, was not a legitimate reason for rejecting the unchallenged expert evidence. Although one of the neurologists was more equivocal than the other neurologist and the psychiatrist, their evidence was that the appellant’s driving to the President’s Hill lookout was consistent with a post-ictal state following an earlier epileptic event. 28   There are other objections to the summing up, some blatantly obvious. For example, there was no obligation on the appellant to prove any fact, whether as a basis for the expert opinions or for any other purpose. The appellant was entitled to an acquittal if there was a reasonable possibility that he had suffered an epileptic event prior to his vehicle striking Mr Hiller. However, it is unnecessary to discuss particular defects in the summing up because the entire approach was wrong. 29   Undisputed evidence from the appellant’s parents, employer and friends established what had occurred in the period which had commenced with the appellant’s illness and terminated with his driving out of the driveway of his parent’s home shortly before the accident. At the worst for the appellant, there was a possibility that he had suffered an epileptic event on 4 October 1995. Other evidence, also undisputed, from the appellant’s parents and Mr Derham described the appellant’s condition after the accident. Although it would have been better if the foundation for the medical opinions had been explored more thoroughly, the uncontested expert opinion was that there was at least a reasonable possibility that the appellant experienced an epileptic event prior to his vehicle killing Mr Hiller. That possibility was increased if the appellant had had alcohol and insufficient sleep on the night before the accident. On the appellant’s evidence of the events of the morning of the accident, it was not merely possible, but probable, that he had suffered an epileptic event prior to his vehicle killing Mr Hiller. But a rational possibility was sufficient to entitle him to an acquittal. 30   There was no prosecution evidence to rebut that possibility. Once the prosecution adopted the attitude which it did to the witnesses other than the appellant, the only basis upon which it could exclude the possibility that his driving was involuntary when his vehicle killed Mr Hiller was to satisfy the jury, beyond reasonable doubt, that the appellant was lying, conscious of his guilt, when he said that he could not remember what had happened. The summing up made no attempt to submit that case to the jury, or to explain that expert evidence based on undisputed evidence from the appellant’s parents, employer, friends and solicitor could provide support for the appellant’s evidence and was relevant to the jury’s assessment of the veracity of his evidence. 31   It is almost 5 years since the death of Mr Hiller. At its worst for the appellant, the prosecution case is that, perhaps because he was tired, he was momentarily inattentive, with tragic consequences. There is no suggestion of speed, alcohol or recklessness. There have been three lengthy trials, without a sustainable conviction. It is unlikely that a properly instructed jury would convict the appellant on the evidence at the most recent trial. He has already served part of a sentence of periodic detention and, if convicted at a further trial, would probably not be sentenced to full-time imprisonment in view of the history of the matter. In the circumstances, a verdict of acquittal, not an order for another trial, was appropriate. 32   SMART AJ: I agree with Fitzgerald JA. 33   IRELAND AJ: I agree with Fitzgerald JA.

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