The State of Western Australia v Donovan - [2016] WADC 53

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- DONOVAN [2016] WADC 53

CORAM: O'NEAL DCJ

HEARD: 4 - 6 APRIL 2016

DELIVERED : 8 APRIL 2016

FILE NO/S: IND 915 of 2014

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
MICHAEL ROBERT DONOVAN

Catchwords:

Criminal law and procedure - Trial by Judge alone - Indictment alleging dangerous driving occasioning death, failure to render assistance, failing to report an incident - Mental state of accused - Whether a person suffering a complex partial epileptic seizure can be said to be 'driving' a motor vehicle - Unwilled acts and omissions - Presumption of sanity - Insanity

Legislation:

Criminal Code s 1, s 23A, s 24, s 26 and s 27
Road Traffic (Administration) Act 2008
Road Traffic Act 1974 s 59(1)(b), s 54(2), s 54(3)(a) and s 56(2)

Result:

Not guilty of all counts, on account of unsoundness of mind

Representation:

Counsel:

The State of Western Australia : Mr D A Jubb
Accused: Mr G Cleveland

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: Cleveland & Co Lawyers

Case(s) referred to in judgment(s):

Hill v Baxter [1958] 1 All ER 193
Jiminez v The Queen [1992] HCA 14; (1992) 106 ALR 162
R v Falconer [1990] HCA 49; (1991) 71 CLR 30

O'NEAL DCJ:

Introduction

Michael Robert Donovan is charged with three offences on indictment 915 of 2014. They are as follows:
1.On 7 January 2014 at Leederville, a motor vehicle, namely a Toyota Hilux utility registration number 1CQA735, driven by Michael Robert Donovan on a road, namely Mitchell Freeway, was involved in an incident occasioning the death of Jonathan Charles Murphy and that at the time of the incident Michael Robert Donovan drove the motor vehicle in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person.
2.On 7 January 2014 at Leederville, Michael Robert Donovan, being the driver of a vehicle on a road, namely Mitchell Freeway, which was involved in an incident occasioning bodily harm to another person, failed to ensure that Jonathan Charles Murphy and Heather McKeegan received all the assistance, including medical aid, that was necessary and practicable in the circumstances,
And that the incident occasioned death.
3.On 7 January 2014 at Leederville Michael Robert Donovan, being the driver of a motor vehicle on a road, namely Mitchell Freeway, was involved in an incident occasioning death to Jonathan Charles Murphy, failed to report the incident forthwith to the officer in charge of a police station.

Summary

These charges arise out of events on 7 January 2014 that are so startling they are difficult to comprehend.
After finishing work on 7 January 2014 Mr Donovan got into his white Toyota ute to drive home. He took his usual route home, including travelling west on the Graham Farmer Freeway turning north onto the Mitchell Freeway in the two lanes that join the Mitchell Freeway, continuing north until turning off the freeway at the Cedric Street exit near Osborne Park. He drove home and parked his truck in the backyard. According to what he later told police, he was surprised to then observe some damage to the front of his vehicle. He wondered how and where it could have occurred.
The answer to that is that between the time that he merged onto the Mitchell Freeway and then left at the Cedric Street exit, the white Toyota ute had driven steadily in the far right‑hand lane of a multi-lane freeway, at a speed of about 100 km per hour, 20 km an hour over the posted limit. In broad daylight the white Toyota ute overtook a motorcycle driven by Jonathan Charles Murphy and forced the motorcycle into the back of a third vehicle, a Subaru Outback, which was driven by Ms Heather McKeegan. The motorcycle was jammed between the two vehicles. Mr Murphy finally fell off and was killed.
The impact with Ms McKeegan's car forced it sideways, and it was propelled some distance by the white Toyota ute before the Subaru suddenly disengaged with the ute, veering to the left and then back again to the far right of the roadway. Ms McKeegan's vehicle spun in nearly a full circle before coming to rest. The white Toyota ute continued up the freeway for about another 800 m dragging the motorcycle beneath it, seemingly oblivious to what had occurred.
All of this time the white Toyota ute did not slow, there was no application of brakes. Instead, it continued to maintain its speed or accelerate.
When interviewed by the police Mr Donovan said that he had no memory of any accident. While he remembered that he had driven home, he had no memory of the time from the Graham Farmer Tunnel to taking the exit at Cedric Street.

Procedure

As a result of an order made by his Honour Judge Staude this matter proceeded as a trial by judge alone. The trial proceeded, before me, largely by way of admissions with respect to the underlying facts. Mr Donovan admitted the matters set out in the witness statements contained in the State brief. The State brief was tendered in its entirety and the main statements relied on by the State were read out at trial. The real issue at trial involved Mr Donovan's mental state. I received evidence from three expert witnesses and heard evidence from Mr Donovan's work supervisor about some behaviour that the supervisor had witnessed in the workplace.
There was little dispute about the central facts, but some differences as to the inferences or conclusions that I was asked to draw from them. I will set out the evidence that I have accepted and relied upon. Because the underlying facts are unchallenged I will not necessarily refer to the source of every fact.

The collision

Late on the afternoon of Tuesday 7 January 2014 Mr Donovan was driving home from work in his Toyota Hilux utility. This vehicle was relatively new. When subsequently examined, apart from the collision damage, the utility was found to be in good mechanical condition. Its brake lights were operating and the brakes were functioning properly.
From his workplace Mr Donovan drove along Abernethy Road to the Leach Highway, turned at Orrong Road and got onto the Graham Farmer Freeway. He drove west along the Graham Farmer Freeway and left that freeway where it turns north to join the Mitchell Freeway.
The Mitchell Freeway at this stage is, understandably, a sealed carriageway. In the area of the Leederville Train Station there are six marked lanes for travelling north, including the two lanes that join from the Graham Farmer Freeway. There is an emergency or break down lane or strip on the far right and then a concrete retaining wall that separates the adjacent Leederville Train Station.
The speed limit for this particular section of highway is 80 km per hour. Once past the train station it changes to 100 km per hour.
On 7 January 2014 the weather was hot, clear and dry. At around 4.45 pm that afternoon the traffic flowing north was light to moderate but travelling freely, at the posted speed limit or thereabouts. So much can also be seen from CCTV footage taken from the Leederville Train Station. That footage became exhibit 4 in the trial.
A number of people who were travelling north on the Mitchell Freeway at that time gave statements that became evidence at the trial. There are understandable differences in the description of events. I say understandable because of the traumatic and fast moving nature of the events that were witnessed, the necessity for some witnesses to maintain control of their own vehicles, and differences caused by perspective. Despite that they are remarkably consistent, and consistent with the CCTV recordings. There are several witnesses however who, in my view, have most keenly observed and accurately reported these events.
Ms Melanie Henderson was driving home on the Mitchell Freeway after work on 7 January. She recalled that at roughly around 4.40pm ‑ 4.45 pm she was travelling northwards on the Mitchell Freeway through the City. She reached the point where the Graham Farmer Freeway merges with the north‑bound Mitchell Freeway. At that stage the two far right hand lanes of the merged highway are carrying the traffic from the Graham Farmer Freeway.
Ms Henderson's usual practice was to try to get in the far right hand lane, in the belief that that was likely to flow better than the other lanes. She had moved across from the lane that she had been travelling in, and into the fifth or second most right hand lane of the merged freeway.
She became aware of a motorcyclist travelling behind her. The motorcyclist overtook her although not at any great speed. She could not recall which side the driver overtook her on, although I conclude it was likely in the far right hand lane. She was not troubled by the manner in which the motorcycle was being ridden. It was only slightly faster than the 80 km an hour at which she was travelling, and the motorcyclist was not weaving. This was the Suzuki motorcycle driven by Jonathan Murphy.
After she was overtaken by the motorcyclist Ms Henderson checked over her right shoulder to see if it was safe for her to now shift into the far right hand lane. She saw a white utility or 'ute' travelling in that far right hand lane, merging from the Graham Farmer Freeway. This was Mr Donovan's ute, and he was seated in the driver's seat with his hands on the steering wheel and his foot on the accelerator.
Ms Henderson observed that the ute was travelling very fast. It was approaching so quickly that she thought that she must be below the speed limit. She checked however and saw that she was sitting exactly on 80 km per hour.
The ute, she observed, was coming up so fast that she thought it safer for her to remain in her lane. As the ute passed her the speed of that vehicle made her think, 'shit he's going fast'.
Speed calculations based on available CCTV footage were made by Sergeant David Magorian of the Major Crash Investigations section of the WA Police. He calculated in the seconds leading up to the collisions with the motorcycle and then the Subaru, the white ute was travelling at about 20 km an hour above the posted speed limit of 80 km per hour.
After the ute passed Ms Henderson moved into the far right lane behind the ute. She observed that the ute was still increasing the distance away from her vehicle.
She said:
Suddenly debris began flying up between me and the ute, and my first thought was that it was stuff coming off of his tray because he was driving so fast.
The ute was about 30 to 40 metres ahead of me when I suddenly saw that it had rammed a green car in front of it – I say rammed because all of a sudden I could see the ute was pushing it along.
I could see the front and back of the green car sticking out at the front of the ute – like they formed a 'T', with the front of the green car facing the railway line there.
It wasn't as if the green car had pulled into the lane the ute was in and had been side swiped or anything.
The ute was still continuing forwards and I don't recall seeing any brake lights lighting up on the ute.
I am satisfied that there was no application of brakes by Mr Donovan.
Ms Henderson said that 'as soon as I realised that the debris was actually coming from this accident I started slowing down'.
In this last respect in my view Ms Henderson was wrong if she thought that the debris was coming from the collision with the Subaru vehicle. What she subsequently observed reveals that.
She said:
As the ute continued forwards it caused the front of the green car to hit the concrete wall that runs along the edge of the railway track area. I saw the back of the green car lift up and at the same time the passenger/left hand side of the ute lurched up and I thought that this was due to them hitting a bigger piece of debris.
This observation of Ms Henderson's was in my view correct, but the piece of debris that was hit was the motorcycle going under the ute.
Ms Henderson continued:
The ute managed to get past the green car somehow and drove on northwards. All of a sudden a body appeared in the lane in front of my car. I did not see where he had come from. I remember seeing a helmet but I'm not sure if it was being worn by him or not.
Ms Henderson was obviously extremely distressed, but she then managed to stop her car and joined others who came to the assistance of the motorcyclist, or tried to.
The green Subaru Outback that Ms Henderson observed was driven by a woman named Heather McKeegan. She was also travelling home, north on the Mitchell Freeway. She had driven from Leach Highway, along Orrong Road and down the Graham Farmer Freeway until it merged north onto the Mitchell Freeway.
She drove in the far right lane on the Mitchell Freeway, one of the two lanes that merged from the Graham Farmer Freeway.
She was in the far right hand lane as the Mitchell Freeway approaches the Leederville Train Station. She recalled that there was a concrete wall off to her far right with which she thought was about a metre gap between her car and the wall.
She was travelling at the posted speed limit of 80 km per hour. She had a habit of checking her rear-view mirror regularly while driving. As she checked prior to the train station she saw nothing or no‑one close behind her. Shortly after that, as the 100 km hour speed sign posted for the train came into view, she checked her mirror again. Suddenly, she said, there was a motorcycle behind her with a white 4‑wheeldrive utility behind that. She said that as she reached the beginning of the train platform she could see both vehicles so close to her that they were huge in her mirror. They were close to her and close to each other. As she looked in her mirror she knew that they were going to hit her because they were both travelling faster than her.
She remembered that the motorcycle hit her first from behind, not straight on but on a slight angle to the left, and then she got hit again with much more force. That was undoubtedly the white utility.
She did not see the motorcycle rider come off his motorcycle but she says that she believes that he was still on the bike when it hit the rear of her car. In my view, based on all of the evidence, she is correct.
With the second collision she said she was pushed into a spin, swerving all over the road and then hitting the concrete wall at about a 90 degree angle.
Her Subaru hit the concrete wall at 90 degrees and then spun around the compass again to face almost forward but across two lanes. As she looked to the right, that is north up the freeway, she could see the utility driving away from her, swerving all over the road. The motorbike she said was underneath the utility. The utility was still going fast, although not as fast as she had gauged before. That is of course understandable both with the energy that would have been lost following the collision of the Subaru and the impediment of the motorcycle.
Ms McKeegan said that it appeared that the driver was trying to get the utility under control. Then she says he accelerated and drove away. She lost sight of the utility as it went around a right hand curve on the road. As it did so there were bits coming off the motorcycle that were being scattered along the road from underneath the utility.
She managed to drive her car straight and pull into the far right of a gap near the concrete wall. Other witnesses then came to her assistance.
There was a third witness in a vehicle off to one side who witnessed the collisions from a more oblique angle than the first two witnesses I have referred to. His perspective reveals the real horror of this collision, which is also apparent in some of the CCTV footage.
Nathan Earle was driving a work vehicle, another Toyota utility, north on the Mitchell Freeway. One of his work colleagues was riding as a passenger. They had driven from south of the river and were heading north to the workshop in Osborne Park. As they passed the area where the tunnel lanes from the Graham Farmer Freeway and the City lanes merge as the Mitchell Freeway the passenger said to Mr Earle 'look at that'.
Mr Earle recalled that they were driving in either the second or third lane of the freeway at that stage.
Mr Earle looked to his right and slightly ahead of him, and saw a motorcyclist with his hands in the air, leaning back on the bonnet of a white Toyota utility with an open tray.
The utility, he said, was not stopping. There was a motorcycle that was up right in front of the utility being pushed along, and the motorcyclist was still sitting on the motorcycle.
Mr Earle's observations are corroborated by one of the CCTV cameras. In a few seconds of footage that can only be described as horrifying, the utility and the motorcycle can be seen about two car lengths behind the Subaru Outback. As Mr Earle observed, the utility is in contact with the motorcycle. The rider can be seen with his hands thrown up in the air and his back arched towards the bonnet of the utility.
Mr Earle was concerned with the conduct of his own vehicle, and he began to slow down, thinking that if the motorcyclist came off Mr Earle's vehicle might collide with him.
Mr Earle was uncertain about the order of the next events that occurred.
He recalled that the utility appeared to accelerate and then suddenly the motorcyclist was gone.
He remembered that the utility hit the next vehicle in front which was a darkish SUV type vehicle that he identified as, 'possibly an Outlander or Forrester'. The utility hit the back of the SUV and caused it to spin out and hit the concrete wall beside the train station. Mr Earle also remembered the motorcycle coming out from under the utility between its two wheels.
Again, CCTV footage shows the white utility bulldozing the Subaru Outback for the length of the train station, something more than 50 m according to a plan made by Major Crash Investigation. In that length the Subaru can be observed rotating so that it is broad side on to the white utility and still being pushed along. Suddenly the utility seems to hit something on the road surface, it veers left within the next lane and then simply seems to resume its course on the far right hand side of the freeway. At first it straddles the emergency strip and as it proceeds around the bend to the right it appears to position itself correctly in the far right lane.
Mr Earle saw the utility drive for about a kilometre almost to the Powis Street exit when suddenly the motorcycle that had been dragged underneath the utility was spat out on the driver's side to come spinning in circles. The utility, he said, continued to drive straight ahead. Mr Earle is in my view slightly mistaken about these last events. As will be seen it was a lane change by the utility that caused the motorcycle to be dislodged.
Senior Constable Michael Jones of Major Crash Investigation measured a tyre scuff and scrape mark that began prior to the resting place of the Subaru and finished in an area of fluid in the right lane near to where the Suzuki motorcycle ended up. Some other driver it appears moved the Suzuki out of the traffic and onto the emergency lane. The scuff and scrape mark however was measured to be 802 m long. I infer however that this commenced some metres after the initial point of contact that can be seen in the CCTV footage, when the Suzuki went under the ute.
Mr Earle and his passenger made a decision to accelerate, Mr Earle said, ' to let the driver know what he had done'. They drove up alongside of the utility and they could see the accused man Mr Donovan. Mr Earle kept looking over at him but Mr Donovan simply continued to stare straight ahead. Mr Earle left the freeway at the Hutton Street exit; the utility continued north.
Mr Earle said that when he tried to catch the utility at one point he had to travel at 120 km per hour.
Mr Kristopher Haxton was also driving north on the Mitchell Freeway. As he passed the train station and entered the 100 km an hour zone he looked in his rear mirror because he was intending to change lanes.

As he did so he saw what he described as a black SUV about 100 m behind. This I conclude was Ms McKeegan's green Subaru.
Mr Haxton said that he saw this SUV spin out to the left and looked as though it was going to cross into the other lanes. He then saw a white Hilux come out of the collision behind him. Mr Haxton put his hazard lights on and started to slow down to about 80. He observed that the Hilux had what appeared to be a black bumper jammed underneath the front left hand side. This in fact was the motorcycle.
It occurred to Mr Haxton that the driver of the white utility did not realise something was caught under him, so he thought that he would slow down and let him know it was still there. Mr Haxton was still in the right hand lane with the Hilux coming up behind him. As the Hilux approached within about 20 m Mr Haxton recognised the dark coloured object caught under the utility as a motorbike. He also observed damage on the front of the Hilux.
At this stage the white Hilux changed lanes so as to pass Mr Haxton's vehicle. As it did so the motorbike spun out from underneath the ute.
Mr Haxton also caught sight of Mr Donovan. Mr Haxton's evidence was:
As the Hilux passed me I got a look at the driver and would describe him as being suntanned, with short black hair and a big beard … from what I saw of the driver he appeared distressed as he put his hand to his head and was shaking his head.
The Hilux continued his speed and did not slow or accelerate and it was a pretty constant speed. I think he probably got to no more about 110 kilometres an hours [sic].
I made the decision to follow him as the traffic was not too heavy until we got further up the freeway … I followed him from the crash to the exit where Ikea is at Cedric Street.
We were in the second or third lane. I think there was four lanes at this stage. The traffic was starting to bank up ahead of the exit and the driver of the Hilux moved over one lane and as we got to the exit the driver immediately ducked across into the exit. I was trapped in the lane I was in and couldn't follow him. I lost sight of him at that time.
Anthony Golding was a passenger in a car driving north on the freeway with other family members when they saw what appeared to be a couple of cars having an accident. He looked back however and saw a man lying on the road with a helmet on. It all happened very quickly as he recalled it, and as soon as they realised what they had seen, they were hundreds of metres past it. However they ended up behind a white ute with an open tray, travelling at a speed that Mr Golding estimated at 60 km ‑ 80 km per hour. Based on the estimates of other drivers this in my view is an underestimation of the speed. However Mr Golding observed that there were sparks and smoke coming out of the back of the ute. He was not sure what was causing that until suddenly he saw a motorcycle 'spat out the back'. He remembered that this was about 1 km from the crash. The ute however just continued to drive dead straight.
Mr Golding and his family made a decision to follow the ute as it was going in the same direction that they were headed. The ute took the Cedric Street exit off of the freeway. It moved into the left lane and then later took the exit, as Mr Golding said, 'like he did it every day'.
Mr Golding observed that from the time that the motorcycle was 'spat out' until the time the ute exited the freeway it was doing the speed limit. When Mr Golding's vehicle got to the traffic lights at Cedric Street he said the ute got into the left lane and turned left at the Give Way sign. Both vehicles passed through the next set of traffic lights and the ute was then in the right lane while Mr Golding's vehicle was in the left lane, slightly ahead of the ute because of the traffic. They stopped at the traffic lights. Mr Golding looked back and he said he could see a male middle‑aged man with a balding head, fat and with a beard. He said he saw the driver 'put his head back, put his hands behind his head and gave out what appeared to be a big sigh'. Shortly after that they lost sight of the ute.
Witnesses of these events recorded the licence number of Mr Donovan's white utility. A number of them were able to give good descriptions of the person they observed driving the utility. As a result of the collision, bits of the front of the white utility were left behind at the accident scene that conclusively pointed to its involvement in the collisions. It is hardly surprising then that by 5.25 pm the police were knocking on the front door of Mr Donovan's house.
First Class Constable Baker and Senior Constable Kickett were the first police to arrive. When they knocked at the door Mr Donovan's mother answered. First Class Constable Baker asked for the accused and he came to the door. According to Senior Constable Kickett Mr Donovan said to police 'I haven't had a crash' to which Senior Constable Kickett responded 'who said anything about a crash'. There was then some further conversation and within a matter of minutes Mr Donovan had submitted to a preliminary breath‑test which gave a negative result. The police were provided with Mr Donovan's mobile telephone which was given to major crash investigators who arrived at 7.17 pm.
There is no evidence here that Mr Donovan was under the influence of any substance that could have affected his driving.

Expert evidence

Expert evidence was received at trial from three neurologists, each highly qualified in their field.
Mr Donovan's professed lack of recollection of these accident led his general practitioner to refer him to Dr Susan Ho for neurological assessment. She had been Mr Donovan's treating neurologist since 13 January 2014. Dr Ho is a practising consultant neurologist with a sub‑specialty in epilepsy. She has been practising in that field for the last 17 years and she plainly enjoys the respect of her professional colleagues.
Mr Donovan was referred by his lawyers to Dr Keith Granger for a medico‑legal report. Dr Granger has been a practising neurologist for 35 years. Because of the limited nature of Dr Granger's involvement he has seen Mr Donovan just once and has not treated him.
Graeme Hankey is a professor of neurology at the University of Western Australia. He has published extensively in peer reviewed scientific journals on the subject of neurology. Professor Hankey was asked by the State to review material contained in the State brief as well as the medical reports of Dr Ho, Dr Granger and a report of an MRI scan of Mr Donovan's brain.
In addition to their testimony, the reports of each of the three neurologists were tendered. A difficulty that arose here was that no direction was sought, prior to the morning of the trial, and little thought was given to the manner in which the trial would proceed and the witnesses coordinated. As a consequence, among the problems that arose, the trial was listed for just two days, and two of the expert witnesses to be called by the defence were waiting to give evidence on the first day.
While I required the main statements to be relied upon by the prosecution to be read publicly, I allowed the three expert witnesses to give evidence by interposing them after the State had tendered the prosecution brief. A consequence of this was that the experts gave opinion evidence based upon facts which had not necessarily been proved at that stage of the trial. The State did not object to this on the basis that the hearsay statements supporting the opinions were admitted, not as proof of those facts, but by way of explanation for the conclusions that each expert had reached. Given that in a number of instances those opinions relied upon the history provided by Mr Donovan, I assumed, incorrectly as it turned out, that while not required to do so, Mr Donovan would testify to those facts. He did not ultimately give evidence. The State accepts however, correctly in my view, that there is other evidence that tends to prove the facts relied upon in reaching those expert opinions.
Dr Ho was told that Mr Donovan had a history of some five episodes of 'blank spells' in the previous 10 years. She was aware that Mr Donovan said that he had no memory of the collision although it was captured on video surveillance.
On the basis of the clinical history that she received, Dr Ho suspected a diagnosis of 'complex partial seizures' and she ordered an EEG test and a cranial MRI. The EEG was normal but the cranial MRI showed what is described as a large arterial venous malformation or 'AVM' in Mr Donovan's left frontal lobe.
An arterial venous malformation is effectively a tangle of abnormal blood vessels, made of up of poorly formed arteries and veins. Ordinarily, normal tissue would have what is described as a capillary bed intervening between the arterial and venous systems. An arterial venous malformation short‑circuits the orderly function of the circulatory system.
The capillary bed provides the network of minute vessels interposed between the supply and return functions of the circulatory system. This provides surrounding tissue with nutrients and carries away waste products. It is the capillary bed that allows surrounding tissue to be supplied with oxygen and to dispose of carbon dioxide.
There are a number of problems associated with arterial venous malformations. First, because they are such poorly formed vessels, they are prone to bleeding and rupture. There is no suggestion here that there was any such bleeding.
Next the sheer size of an AVM can cause pressure, in the same manner as a tumour on surrounding tissue. Finally, at least for my purposes, the deficiency in the supply of blood to surrounding tissues or 'ischemia', leads to surrounding tissue death, and subsequent scar tissue formation called gliosis. Gliotic tissue in the brain is 'very epileptogenic'. That is, it is a source of seizures.
Information is transmitted through the neural pathways of the brain by electrical signals. Seizures are the result of abnormal discharges of electrical impulses from the nerve cells. Gliotic tissues are one of the kinds of brain cell malformations that can result in those abnormal discharges.
Because of the consensus of opinion between the experts I will only summarise the effect of their evidence. I mean no disrespect in doing so.
The advent of new imaging techniques it would seem has significantly advanced our understanding of the biological functioning and dysfunction of the brain. It has led to great advances in the understanding and description of the nature of epilepsy and the variety of its manifestations. Having said that, and with respect to the neurologists who gave evidence, it is apparent that there is much that remains surmise.
Dr Ho and Dr Granger expressed the opinion that it was likely or probable that Mr Donovan suffered from seizures as a result of the arterial venous malformation present in his brain. Both Dr Ho and Dr Granger described the kinds of seizures that he appeared to have experienced as 'complex partial seizures'.
Professor Hankey expressed the view that it was likely that the scarring of tissue caused by the arterial venous malformation had caused some dysfunction of the left frontal lobe giving rise to epileptic seizures in that part of the brain. Professor Hankey described the kind of seizure that was likely to have occurred as 'focal' seizure. It was evident from his testimony at trial that this was a matter of nomenclature and that his conclusions were consistent with those of Dr Ho and Dr Granger.
Each of the experts referred to the challenge of describing human consciousness, ascribing to it two components. The two components or aspects of consciousness are, first, the level of consciousness and second, its content. The level of consciousness is represented is the continuum from coma to a state of being fully alert, with vegetative state, stupor and drowsiness in between. The content of consciousness however focuses on the function or dysfunction of specific sensory, motor, memory and emotional systems, quite apart from the level. A disruption in the content of consciousness can cause sensory loss, motor loss, visual changes and memory impairment, without full loss of awareness or responsiveness.
It is apparent from the evidence of the experts that considerable variety in the manifestation of dysfunction is possible, depending on the exact source, degree and dispersal of discharges through the neural pathways of the brain.
What was significant in Mr Donovan's case is that the arterial venous malformation was present in the left anterior frontal lobe. The function of the frontal lobe includes supplying the ability to recognise future consequences resulting from current actions, the choice between actions (what might be called judgment), the overriding and suppression of socially unacceptable responses and the determination of similarities and differences between things or events.
What was also common to the evidence of each of the experts was their conclusion that it was entirely plausible that persons experiencing seizures of this kind would be able to function in an automatic way in some respects, that is, they could retain apparent consciousness and carry out seemingly purposeful actions while lacking full awareness. Indeed, they could do so with little or no conscious awareness.
There were some differences expressed about the anticipated duration of what I will describe as the acute phase of a seizure of this kind and the extent to which any executive brain function could or would be retained by someone experiencing a seizure of this kind. For example, the expert witnesses were examined and cross‑examined about the likely ability of somebody experiencing a seizure of this kind to drive a motor vehicle, to drive that motor vehicle along a route familiar to them by regular use, the ability to recognise and avoid obstacles, maintain the vehicle within a marked lane and respond to new stimulae in the environment around them. As became clear from the evidence, questions of this kind fall into the 'how long is a piece of string' category of neural science. Much depends on the size and duration of the electrical discharges that initiates the seizure, the magnitude of the discharge, and how far through the brain it spreads. The actual duration of the electrical discharge, the 'ictal' phase, has been observed as continuing for seconds or minutes and in one case observed by Dr Granger a month. It seems that 30 seconds or 60 seconds is common.
I observe that a vehicle travelling at 100 km an hour will cover 1.6 km in 1 minute.
Following that ictal phase however there is what is described as the post‑ictal phase, when the electrical discharge has subsided or is subsiding. According to Professor Hankey on average that post‑ictal phase would be 5 minutes ‑ 15 minutes.
What was clear from all of the expert evidence however was that each of the experts regarded it as entirely plausible that someone experiencing a seizure of this kind could maintain a degree of control over a motor vehicle on a highway, and collide with another vehicle, while having no conscious awareness of doing so.
It was Dr Ho's opinion that in the course of the accidents that were described Mr Donovan was experiencing a cerebral incident that caused him to lose executive functions of cognition, decision‑making abilities and memory. Her opinion was that he was likely experiencing a seizure.
Dr Granger gave evidence that the collisions here were explained by a complex partial seizure. He provided an example of another patient, someone known to him for years, who was recorded on CCTV television driving a forklift truck at work through a gate and into the car park avoiding vehicles for about 20 minutes, in a course of a seizure.
Each of the experts said that certain behaviours, if they become practised, cease to require much executive brain function at all. The brain creates neural pathways so that activities that previously required considerable thought come to require little or no thought. Dr Granger used the example in particular of driving and the common human experience of driving a familiar route, to or from work with little thought and often little recollection afterwards of any particular part of the journey.
Professor Hankey used the example of both riding a bicycle and speech, the complexity of those activities, at least initially, until learned by the brain. The neural pathways having been created for an activity however, it comes to require very little cognition.
It was apparent from his evidence that Professor Hankey had no doubt that Mr Donovan's driving leading to the collisions was the consequence of an epileptic seizure resulting from the AVM. Professor Hankey contrasted the anticipated reaction of someone who was at a lower level of consciousness, for example because they were stuporous or drowsy, as compared to someone for whom the content of their consciousness was impaired. Someone who was driving while drowsy for example would be jolted alert by a sudden emergency. The ordinary survival instinct would compel a reaction like an emergency application of brakes. Someone whose executive functions are impaired or affected from the seizure would not respond in that ordinary conscious human way. The observation is telling.
The evidence of Professor Hankey seems to me to best summarise the probable course of a seizure here based on all the evidence.
Professor Hankey's view was that although the source of the seizure was in the frontal lobe, as a result of the arterial venous malformation, the ictal discharge likely went beyond the frontal lobe and probably right back to the temporal lobe and into the thalamus. There was probably quite an extensive discharge through a lot of the left hemisphere of the brain. It was quite localised but quite substantial. There was probably a lot of compromise of higher executive function but a preservation of consciousness although not awareness, and there was probably a preservation of the integrity of the nerve tracks or circuits that subserve movement. That meant that Mr Donovan could still contract his right foot to stay on the accelerator, although what is described as a tonic spasm may have limited his control of his leg and his control over the accelerator.
Following the ictal phase of the seizure, brain function would gradually be restored in the post‑ictal phase in a period of seconds to minutes and, as Professor Hankey said on average between 5 minutes – 15 minutes. This restoration of function is a continuum. It is not a sudden restoration of full awareness.
In considering some of the evidence here, at least initially, I had a concern that some of the behaviour of Mr Donovan that can either be observed from the CCTV or was observed by witnesses, was either inconsistent with a complete lack of awareness or showed a degree of awareness that was arguably inconsistent with a state of seizure. That argument was advanced, but faintly, by counsel for the State particularly with respect to counts 2 and 3 on the indictment. In my view it would be dangerous to ascribe those behaviours to a conscious state of awareness.
When the white utility breaks free of the Subaru it veers to the left around it and then back into the far right hand. It seems to me that the forces involved were likely to have shifted the white utility to the left. What is striking about the conduct of the utility after that is the way that it simply goes around the obstruction of the Subaru and continues on its course in virtually the same track for more than 800 m after the collisions.
Mr Haxton observed what he thought was distress on Mr Donovan as he put his hand to his head and shook his head. Depending on the speed of the vehicles this was somewhere between 25 seconds – 30 seconds after the collisions. Mr Golding later still observed Mr Donovan stop at the traffic lights and saw him put his head back, his hands behind his head and give out what appeared to be a sigh. First I observe that based on what appears in the record of interview, Mr Donovan said that his recollection recommenced while exiting at Cedric Street. That was after the motorcycle had been ejected from under the ute.

It is reasonably common for people who have suffered epileptic seizures to experience fatigue and be moved to yawn after a seizure. It is easy to equate behaviour of that kind to what was observed by Mr Golding at the stop light.
So far as Mr Haxton's belief that he witnessed distress, it is difficult to place much weight on a fleeting glimpse at highway speeds. In the continuum of the re‑emergence of awareness in a post‑ictal state, it is difficult to say with any certainty how someone in that state should or would appear.

The record of interview

I have seen both the video of the search that at occurred Mr Donovan's house and his subsequent recorded interview with the police. Although he had no obligation to do so, it appears that Mr Donovan fully cooperated with the police. It is common for criminal lawyers to look for behaviour subsequent to an alleged offence that reveals a consciousness of guilt. Having seen the two recordings that I have referred to Mr Donovan gives every appearance of being oblivious to the horror left behind him on the Mitchell Freeway. I am inclined to accept his statement to police that his recollection was effectively blank from the Graham Farmer Tunnel the Cedric Street exit. The expert witnesses were in my view justified in basing their opinions, at least in part, on that fact.
Another matter that arises from the recorded interviews is, that Mr Donovan had not had blackouts before 'that I know of'. There are references in the expert reports to five episodes in 10 years observed by family, friends, or work colleagues. An attempt was made to assert that none of these episodes were revealed to the accused until after the accidents that underlie the three charges here. Apart from the fact that that claim was sought to be advanced by inadmissible hearsay, properly objected to by the State, it is implausible that anyone with some regard for the accused would not have immediately raised with him such disturbing behaviour.
The expert witnesses supported their conclusions, at least in part by a history of other seizures. While those facts were not proved in evidence there is proof that on another occasion subsequent to 7 January 2014, Mr Donovan experienced a seizure that manifested itself in autonomic behaviour. That event occurred in his workplace. It was captured on CCTV and Mr Donovan's supervisor, Wayne Neave, gave evidence as to what he witnessed about that event.
Mr Neave described an occasion where, with Mr Donovan's assistance, he was looking for a pallet of goods that had been misplaced. Within the warehouse area that can be seen on the CCTV, Mr Neave walks off in the direction of the pallets and Mr Donovan walks off to the left of the screen where there are some boxes. As Mr Neave said, he did not understand why Mr Donovan had gone in that direction because there were not even any pallets there. Mr Donovan can be seen standing, not entirely motionless. As the CCTV footage shows, Mr Neave walks down past Mr Donovan and found the pallet that he was searching for. Mr Neave said he then shouted to Mr Donovan to tell him that he had found the goods. When he got no response he then began walking towards Mr Donovan. He observed Mr Donovan move around to a bin and throw a piece of paper into the bin. The paper was a form that they were working with, that was needed for the work. Mr Neave was repeatedly shouting Mr Donovan's name and getting no response. Mr Neave asked him whether he was okay and again got no response. Looking at Mr Donovan's face Mr Neave said 'it's like I wasn't even speaking to him, he was just looking downwards towards the pallet and just nothing, no response'. As Mr Neave said and as the CCTV footage shows Mr Donovan was simply standing there leaning forward apparently oblivious to his co‑workers. Then he begins to fidget with a bit of paper in front of him. As it turns out he was doodling something nonsensical on the form that they were working with. Mr Donovan can be seen walking backwards and forwards aimlessly. After about a minute and a half Mr Neave was able to encourage Mr Donovan to come to Mr Neave's office. Mr Neave said that Mr Donovan never responded except with a kind of a grumbling or mumbling noise. It was about 2 minutes before Mr Donovan went to Mr Neave's office. After 4 minutes or 5 minutes in the office Mr Donovan slowly began to speak to Mr Neave and slowly started, as Mr Neave said 'to come to what I would know Michael as'.
I accept the evidence of the expert witnesses.

Elements of the offences-Arguments

The State carries the burden of proving each of the elements of each offence. The standard of the burden of proof is beyond reasonable doubt.
The accused here has no duty or obligation to prove anything. The accused has no obligation to give evidence and it would be most unfair to draw any inference from the fact that he chose not to give evidence. I draw no inference adverse to the accused from the fact that he did not give evidence.
I will not refer to all of the elements of each offence because in fact the real matters in issue here are relatively limited.
With respect to each of the three offences however the State must prove beyond reasonable doubt that the accused was driving a motor vehicle. With respect to count 1 the State of course must also prove that the manner of the driving of that vehicle was, having regard to all of the circumstances of the case, dangerous to the public or to any person.
The case for the State is that, subject to the conclusions I reach with respect of the mental state of the accused, I am entitled to find all elements of each offence proved beyond reasonable doubt.
The case for the accused, with some embellishments that I will refer to later, is effectively that I could not be satisfied beyond reasonable doubt for the purposes of each charge that the accused was in fact 'the driver of the white Toyota utility', or for the purposes of count 1 that he was 'driving … in a manner that was having regard to all of the circumstances of the case, dangerous to the public or to any person'.
The accused was the only person in the white Toyota utility. It was his hands on the wheel and his foot on the accelerator as the white Toyota utility ran down Mr Murphy on his motorcycle and collided with Ms McKeegan in her Subaru. The question naturally arises, if Mr Donovan was not driving the utility, why was he not?
The Toyota utility was travelling at 20km per hour over the posted highway speed. It was a speed that caused it to overtake and rundown two vehicles, one after the other, travelling in the same lane, in the same direction. These events occurred in good conditions, in broad daylight. Presuming Mr Donovan to be of sound mind at the time of these events, I am readily satisfied beyond reasonable doubt that each of the offences has been proved.
I will now consider the submission that Mr Donovan is not culpable for any of these offences because his operation of the steering and accelerator of his Toyota utility occurred independently of the exercise of his will. Similar considerations apply to his failure to stop and render assistance and his failure to report these incidents. In fact, the only evidence that explains his behaviour arises from the prospect of an epileptic seizure caused by the arterial venous malformation. No other cause is suggested.
The Road Traffic (Administration) Act 2008 defines 'driver' as 'any person driving a vehicle …'. 'Drive' includes, 'in relation to a vehicle, to have control over the steering, movement or propulsion of the vehicle'.
In essence the case put forward for Mr Donovan is that, by virtue of the seizure that he was experiencing, he was in a state of automatism that left him unable to exercise a conscious awareness over the control of his motor vehicle. Relying on the evidence of the three expert neurologists, the submission is that I could not be satisfied beyond reasonable doubt that Mr Donovan was in fact 'the driver' of the white Toyota ute at the time of the matters alleged in the three counts on the indictment.
The submission is based on s 23A(2) of the Criminal Code which provides:
A person is not criminally responsible for an act or omissions which occurs independently of the exercise of the person's will.
There is a difficulty with that submission that counsel for the accused has struggled to deal with. That is the fact that the same evidence that tends to prove that Mr Donovan was not able to exercise a conscious will over the control of his motor vehicle, establishes that that was the result of a congenital malformation in his brain producing an epileptic seizure. Nothing else could have caused it.
The kind of argument that counsel for Mr Donovan makes is one which has previously been considered, with considerable authority, in the decision of R v Falconer [1990] HCA 49; (1990) 171 CLR 30. In that decision the court, and in a joint decision Mason CJ, Brennan J Hugh J considered the interplay between what is now s 23A, and s 26 and s 27 of the Criminal Code.
I have already referred to s 23A(2) of the Criminal Code.
Section 26 of the Criminal Code provides:
Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.
Section 27(1) relevantly provides as follows:
A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act while making the omission he is in such a state of mental impairment as to deprive him of the capacity to understand what he is doing, or of capacity to control his actions, or of the capacity to know that he ought not to do the act or make the omission.
'Mental impairment' is defined as 'intellectual disability, mental illness, brain damage or senility'.
'Mental illness' is defined as 'an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from a reaction of a healthy mind to extraordinary stimuli': s1Criminal Code.
The primary argument raised by counsel for the accused is that there is evidence before me that not merely raises a reasonable doubt, but establishes on the balance of probabilities that Mr Donovan was suffering from a seizure prior to, during, and immediately after the accidents, the seizure resulting from the arterial venous malformation. For that reason it is said that Mr Donovan did not have control over the steering, movement, or propulsion of the Toyota utility at any relevant time.
Counsel for Mr Donovan relies on several authorities including Hill v Baxter [1958] 1 All ER 193 for the proposition that someone experiencing an epileptic fit could not be said to be driving even though seated behind the driver's seat with their hands on the steering wheel. In the case of Jiminez v The Queen [1992] HCA 14; (1992) 106 ALR 162 the actions of a driver who falls asleep behind the wheel were said not to be conscious or voluntary, and that such a person could not be criminally responsible for driving their car in a manner dangerous to the public, at least for that reason alone.
Cases involving drivers who fall asleep at the wheel involve considerations different to those that present here, notwithstanding that they also raise the question of the voluntariness of acts or omissions that would otherwise be culpable. Most obvious is the fact that all of us have not only the capacity for sleep, but the need for it, as an ordinary human function. Fortunately epileptic seizures are not a common human experience.
Next, accepting that all of us have the capacity to fall asleep and that a person who is asleep and therefore unconscious could not be said to be in control of or driving a motor vehicle, sleeping driver cases inevitably turn on the driver's appreciation or lack of appreciation of the risk that he or she would fall asleep at the wheel, and whether his or her condition prior to the loss of consciousness establishes as a matter of fact that the driving prior to the loss of consciousness was a danger to the public.
Similarly there are cases where a person will drive with a knowledge or appreciation that they are subject to epileptic seizures. Accepting that they could not be said to be acting in a conscious or voluntary way while experiencing a seizure, the question again becomes whether, by virtue of whatever appreciation there was of the risk of a seizure, their condition was such that, as a matter of objective fact, driving in that condition was a danger to the public.
Whether in the case of sleeping or of an epileptic seizure, if the evidence establishes that, at a time sufficiently contemporaneous with the resulting collision or other incident, the condition of the driver was such that as a matter of objective fact they are driving in a condition was a danger to the public, they are then culpable for the consequences. That is, with offences of the kind charged here they would be found guilty. That is not the way in which the prosecution advances its case here.
While pointing to evidence, particularly subsequent to the collisions, that arguably suggests willed acts and a conscious awareness of what had occurred, the State does not suggest that I should reject the evidence of the three neurologists who gave evidence. The case for the State is that if I am satisfied by the evidence that Mr Donovan was not acting voluntarily, that his actions were not willed, then the same evidence establishes that the involuntary acts resulted from an underlying pathological infirmity of the mind.
The State prosecutor draws to my attention that issues of the kind raised by the defence arguments were considered in the case of R v Falconer [1990] HCA 49; (1990) 171 CLR 30.
In Falconer the facts required the members of the court to reconcile the provisions of then s 23, s 26 and s 27 of the Criminal Code, and the interrelationship of those provisions against considerations of the burden of proof, legal and evidentiary. Although there are separate reasons given by some members of the court, what clearly emerges from Falconer is that where an accused relies on s 23 (now s 23A(2)) but there is evidence pointing to mental disease or mental infirmity as the cause of any involuntariness, the trier of fact is not precluded from considering s 27 simply because the accused determines not to advance it. The approach which I adopt is that described in joint reasons of Mason CJ, Brennan J and McHugh J (at page 44):
[W]hat is the position if the accused chooses to raise an issue of automatism – that is, of an act done independently of the exercise of his will – under the first limb of s 23 but fails or refuses to prove the cause of the automatism? It might be argued that, if it be not proved that unsoundness of mind caused or contributed to the automatism alleged, the verdict should be an outright acquittal. If this argument be valid, automatism caused or contributed to by unsoundness of mind entitles an accused to an outright acquittal provided the accused abstains from proving unsoundness of mind. If that were the position, procedural tactics would work substantive error. The solution lies in giving to s 26 its full effect: until unsoundness of mind be proved, it must be presumed for all purposes, including the finding of facts, that the accused was of sound mind when the act was done. In determining whether the prosecution has discharged an onus of proving any issue, the tribunal of fact must act upon the presumption that the accused is of sound mind unless and until the contrary is proved. Treating the accused as being of sound mind precludes the existence of automatism where the automatism could have been caused only by reason of unsoundness of mind or could not have existed but for unsoundness of mind. Thus s 26 precludes the hypothesis of automatism except for an automatism which, on the evidence, might have been caused exclusively by circumstances outside the operation of s 26. By operation of s 26, the jury is precluded from returning a verdict of acquittal under s 23 if the accused raises an issue of automatism which depends to some extent on unsoundness of mind. And, if an accused proves on the balance of probabilities that his alleged automatism was caused or contributed to by unsoundness of mind, a qualified verdict under s 653 must be returned.
And further (at page 56):
When an accused raises automatism and assigns some malfunction of the mind as its cause, he raises a defence of unsoundness of mind or insanity unless the malfunction of his mind was (1) transient (2) caused by trauma, whether physical or psychological, which the mind of an ordinary person would be likely not to have withstood and (3) not prone to recur. A malfunction of the mind other than a malfunction which satisfies those exempting qualifications amounts to a disease of the mind, or a mental disease or natural mental infirmity. As an accused bears no ultimate onus of proving that his act was not willed, in theory an accused may raise the issue of non‑insane automatism on the evidence and claim to be acquitted outright unless the prosecution disproves the issue. But in practice an accused does not raise non‑insane automatism by raising automatism based merely on mental malfunction. Prima facie, mental malfunction is the consequence of mental infirmity and, until it be proved that a particular instance of mental malfunction satisfied the exempting qualifications, mental malfunction must be treated as a consequence of mental infirmity.
It follows that, unless and until the automatism on which an accused relies is proved to be merely a transient mental malfunction of his otherwise sound mind caused by trauma and that the malfunction is not likely to recur, both s 26 of the Code and the common law preclude consideration of automatism for the purpose of determining whether the incriminated act was willed or voluntary.
Accepting then that the evidence here raises the probability that at the time of the accidents and their immediate aftermath Mr Donovan lacked conscious awareness of what he was doing and for that reason the acts or omissions that are elements of the three offences occurred independently of the exercise of his will, why was that so?
As the authorities including Falconer make clear, it will be an unusual case where automatism or unwilled acts occur in the absence of some disease of the mind.
The case put on behalf of Mr Donovan is that this epileptic episode falls within the kind of malfunction of the mind that does not amount to mental disease or mental infirmity because it was transient, caused by trauma and not prone to recur.
I do not accept that argument.
Epilepsy, it can be accepted, is by its nature usually transient. The epilepsy here was not however caused by trauma. Nor can it be said here that this condition is not prone to recur.
I have already described the nature of the congenital defect, the arterial venous malformation that is present in Mr Donovan's frontal lobe. Over the Mr Donovan’s life the scarring gliosis has developed. The scarring and perhaps other effects of the size and location of the malformation, have made Mr Donovan prone to the abnormal electrical discharges that result in epileptic seizures. The examination of the effects of those electrical discharges at a molecular level cannot in my view, in any rational sense, be properly described as trauma, whether physical or psychological. Reading the authorities it is plain that the kind of trauma that is referred to, whether physical or psychological, is trauma external to the person concerned and not the result of progression of disease.
The argument advanced in support of the proposition that there could not be a recurrence of this condition is that Mr Donovan would now not be driving a car and he would be medicated. Quite apart from the paucity of evidence as to that, the argument it seems to me really ignores the effect of the words quoted from Falconer. The only evidence that I have as to the likelihood of a recurrence of Mr Donovan's condition, further epileptic seizures leading to a dis-associative state, comes in the evidence of Dr Ho. Dr Ho has said that the nature of the AVM is such that it would be dangerous to operate. Her letter of 14 February 2014, exhibit 9 says:
In view of the risk of seizure recurrence I have commenced on an anti‑epileptic medication … I have advised him of side effects … I will review him in six weeks …

Conclusions

Earlier in these reasons I recorded the fact that, presuming Mr Donovan to be of sound mind, I would find each of the offences proved beyond reasonable doubt. With respect to an argument made about honest and reasonable mistake, there is no evidence here that I am prepared to accept, that establishes what exactly Mr Donovan in fact knew or did not know about his fitness to drive, and no evidence that would allow me to consider the reasonableness of that belief.
Mr Donovan has put in issue the voluntariness of his acts and omissions, relying on the evidence about epilepsy that I have referred to. I am satisfied that in fact, at the time of these events, Mr Donovan was suffering an epileptic seizure with the consequence that he was not able to exercise a conscious will over his actions, and that he was in fact deprived of the capacity to understand what he was doing and indeed to control his actions in a conscious sense.
The evidence of the experts, based on the objective proof of the MRI scan showing the arterial venous malformation, and the CCTV footage from Mr Donovan's workplace combined with the testimony of Mr Neave, readily lead me to conclude that Mr Donovan is a person who suffers complex partial epileptic seizures.
The evidence about the events surrounding these charges, from both the statements of witnesses and the CCTV footage, shows behaviour so irrational that the obvious explanation is a seizure. It is simply inconceivable that a normal person with even a moderate sense of self‑preservation, would have driven and continued to drive in the manner that has been seen.
I accept that even in the initial post‑seizure or post‑ictal stages, as conscious awareness was slowly regained, Mr Donovan probably did not understand what had occurred, did not appreciate that he had been in an accident or accidents, and did not recognise his duty to render aid and report the incidents.
As a matter of law however I conclude that the condition from which Mr Donovan suffers is a mental impairment, being an underlying pathological infirmity of the mind. I am satisfied on the balance of probabilities that that mental impairment deprived Mr Donovan of the capacity to understand what he was doing and the capacity to control his actions. The evidence here establishes beyond reasonable doubt, that the only cause of Mr Donovan's inability on this occasion to consciously and voluntarily exercise his will and properly control his motor vehicle, was that mental illness.
In the result, I find Mr Donovan not guilty of each offence. I do so based on his unsoundness of mind within the terms of s 27 of the Criminal Code.