S v Police HC Hamilton CRI 2006-419-143

[2007] NZHC 444

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-419-000143

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 May 2007

Appearances: Mr R Mansfield for Appellant

Ms R Mann for Crown

Judgment:      4 May 2007

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Hamilton

R Mansfield, Auckland

S V NEW ZEALAND POLICE HC HAM CRI 2006-419-000143  4 May 2007

Introduction

[1]      The appellant has been convicted of two counts of careless driving causing injury.   He was directed to pay reparation of $1,850, sentenced to 200 hours community work and disqualified from driving for a period of seven months.   He appeals against conviction and sentence.

Background

[2]      At about 10.30 in the morning on 22 June 2005 the appellant fell asleep at the wheel of his Nissan motor vehicle on Parawai Road in Thames.   The appellant’s vehicle crossed the centre line of the road and hit the victim’s vehicle head on.  Both vehicles were extensively damaged.  The appellant and both the driver and passenger in the second vehicle were injured.  The driver received lacerations and cuts to her legs, bruising to her upper torso, and suffered a broken rib.  The passenger was also injured. She had to be cut  from the vehicle.    She received severe bruising and swelling to her chest and hips.  She also suffered a bad ankle sprain and spent time in hospital.

[3]      The appellant was charged with careless driving causing injury.  He has little recollection of the relevant offence and/or the accident.   He accepts causing the accident and accepts that he had fallen asleep at the wheel.  The issue at trial and the issue on appeal is whether the appellant had been careless by driving at the time the accident was caused.  For approximately a month prior to the accident the appellant had been suffering from a number of health issues including anxiety.   He had not been sleeping well.

[4]      The appellant’s doctor referred him to the hospital to have a lump in his throat examined.   The lump was of concern to the appellant.   The doctor at the hospital prescribed a course of lorazepam to address the appellant’s anxiety, and in the words of the appellant, to help him sleep.  The container issued by the hospital pharmacy had the following  label:    “May cause sleepiness:    limit  alcohol –  20

lorazepam 1 mg tabs – take 2 tablets at night”.  The prescription was issued on 20

June 2005.  When the appellant got home he took two tablets and went to bed late in the afternoon of 20 June.  He slept for about 24 hours waking in the late afternoon of

21 June.  When he awoke he took a further two tablets and went back to bed.  He slept again, awaking on the evidence some time between 2.00 a.m. and 4.00 a.m. on the morning of 22 June.   The Judge seems to  have accepted the time as  being

4.00 a.m.   At that time the appellant took a further two tablets to help him sleep through to the following morning.

[5]      The appellant said that when he woke on the morning of 22 June he felt very good.  In a statement to the police officer taken at the hospital after the accident he said he woke at about 10 and went to Pak’n’Save.  In his evidence he said that he awoke at about 7.00 a.m. and readied his children for school and then went to the shops  at  about  10.00  a.m.    The  Judge  seems  to  have  accepted  the  appellant’s evidence that he awoke at about 7.00 a.m. in the morning.  In any event it was on the journey home from the shops that he fell asleep and the accident occurred.  There is no evidence the appellant exhibited signs of drowsiness or that he felt sleepy prior to the accident.

[6]      The appellant was not advised by the doctor at the hospital that he should not drive after taking the medication. The appellant had no previous experience of the medication and its effects.

[7]      At the hearing in the District Court the prosecution evidence was admitted by consent.  The appellant gave evidence in his defence as did his doctor.  The doctor gave evidence about the effect of the medication, although he had not prescribed it.

[8]      The Judge found the charge proved.  She stated at para [29] of her decision:

Given what Mr S   knew at the time, to drive within that short period after  taking  that  additional  third  set  of  tablets,  was  not  what  could  be expected of a reasonable and prudent driver having concern for the safety of himself and other road users including the ability to be able to properly respond to any driving hazards, to take proper cognisance of the road rules, to be able to react properly to the requirement to stay on his side of the road, and to be competently in control of any motor vehicle. The fact that he fell asleep must be at the extreme end of his lack of competency to properly control his motor vehicle. This was not a case of falling asleep suddenly

without  the ability to judge that  such an  event  was  indeed  a  very  high probability. Even had he not fallen asleep, he would have been significantly impaired. The fact that he did fall asleep as I say, is at the extreme end of his lack of competency in driving and it was not a sudden event that was without ability to perceive as a very high probability of what would happen.

Appellant’s submissions

[9]      It is submitted on behalf of the appellant the issue is whether a prudent driver in the position of the appellant would have been aware of the risk of falling to sleep from taking the medication but nevertheless decided to drive with that knowledge and was therefore careless.

[10]     Mr Mansfield correctly identified and summarised the issue as whether there was evidence of carelessness sufficient to support the Judge’s inference and findings from the evidence.   Mr Mansfield referred to the appellant’s evidence that he felt good when he woke up on the morning of 22 June and felt able to drive. Counsel submitted that the appellant had no indication of the effect the medication might have on him.   He referred to the evidence of the doctor, who confirmed that the medication was prescribed to address anxiety and that it was not a sleeping pill. Mr Mansfield submitted that the appellant had been previously exhausted from lack of sleep as a result of his anxiety, had taken the medication to address his anxiety and had caught up with sleep as a consequence.  He said that the appellant no longer felt himself suffering from anxiety when he awoke on 22 June and had no reason to suspect that he would fall asleep.

[11]     Counsel criticised the Judge’s conclusion the appellant should have known he should not drive a motor vehicle after taking the medication and that a prudent driver would not have driven in those circumstances.   He submitted that there was no evidence to substantiate that finding as there was no evidence the appellant had any warning of the likelihood he might fall asleep while driving.

[12]     In  summary  counsel  submitted  that  the  Judge  erred  in  fact  and  law  in concluding that a reasonable and prudent driver would not have driven after taking the medication.  He submitted the accident was not caused by carelessness and that the appellant just suddenly, and without notice, fell asleep at the wheel.

Respondent’s submissions

[13]     For the respondent it is submitted that the Judge’s decision was based on inferences she was entitled to draw from the evidence adduced, in particular that the appellant had taken an excessive amount of the medication within the preceding period of 36 hours before the accident, and that he had slept for long periods after taking the medication so that it was open for the Judge to find the appellant was careless when he drove, in those circumstances, particularly bearing in mind the warning on the prescription note.

Decision

[14]     The principles to apply are not in issue. They have been confirmed by the Court of Appeal in Police v Vialle [1989] 1 NZLR 52. Carelessness must be judged objectively. The key question is whether the appellant failed to exercise the degree of care and attention that a reasonable and prudent driver would have exercised in the circumstances.

[15]     While it may be careless to drive while asleep:  Kay v Butterworth (1945) 61

TLR 452 or for a driver to continue driving if they become tired: Kay v Butterworth (supra);  Henderson v Jones (1955) 119 JP 304;  Hill v Baxter [1958] 1 QB 277, a distinction can be made between falling asleep or becoming unconscious through no fault of one’s own and when this is foreseeable:

If a driver allows himself to drive while he is asleep, he is at least guilty of driving without due care and attention because it is his business to keep awake.  If drowsiness overtakes a driver while he is at the wheel, he should stop and wait until he shakes it off and is wide awake again.   A person, however, who, through no fault of his own, becomes unconscious  while driving, for example, by being struck by a stone, or by being taken ill, ought not to be liable at criminal law.

Kay v Butterworth (supra)

[16]     In Police v Vialle (supra) the Court of Appeal confirmed that a person who falls asleep while driving is not necessarily careless, (523-524).

[17]     The question of whether there has been carelessness in a particular case may be  informed  in  part  by the  reasonableness  of an  asserted  belief that  the  driver considered themselves fit to drive although such assertion is not conclusive:  (Vialle at p 524).   The question typically becomes one of the degree of foreseeability or probability of falling asleep or unconscious at the wheel.   In Hill v Baxter [1958]

1 QB 277, Pearson J stated at p 286 that:

Similarly, in the case of a man who knows that he is liable to have an epileptic fit but, nevertheless, drives a vehicle on the road, there is a question of fact whether driving in these circumstances can properly be considered reckless or dangerous.   The answer might depend to some extent on the degree and frequency of the epilepsy and the degree of probability that an epileptic fit might come upon him.

[18]     In Hoeta v Ministry of Transport (High Court, Auckland, 19 April 1991) Thomas J approved and applied the above statement.

[19]     In  Hoeta,  the  appellant  had  a  tendency  to  faint  and  have  blackouts, particularly when she had her period.  Thomas J accepted that whether the appellant was careless or not when deciding to drive would turn on the degree and frequency of her fainting or blackouts.  He dismissed the appeal against conviction on a charge of careless use causing death and two charges of careless use causing bodily injury on the basis that at the time the appellant was driving she had a period and in his words:

…. must have been fully aware of the possibility that she would faint as she was driving.

[20]     The  Court  is  entitled  to  take  into  account  background  circumstances surrounding and leading up to the incident:  Vialle at p 523.

[21]     In this case the particularly relevant background circumstances leading to the accident that relate to the issue of carelessness are:

a)       The appellant took three doses of medication within 36 hours instead of 72 hours as would have been normal for that medication if two tablets were taken every night as prescribed.

b)       The  appellant  expected  to  fall  asleep  upon  taking  the  medication given the arrangements he made for the care of his younger children before he took the first dose.

c)       The appellant intended the tablets would enable him to sleep, that is why he took the tablets and that is what happened.  He described the tablets to the police in his initial interview as sleeping tablets.

d)The note on the prescription advice on the bottle stated “may cause sleepiness”.  The appellant was aware of that warning.  I observe here that during the course of submission counsel referred to the  more explicit direction and warning against driving noted on other medication that the appellant had.  But that medication was prescribed after the particular accident.  There is no evidence that the appellant had medication with such an explicit warning available to him prior to the accident to enable him to make a comparison between the two warnings.

e)       After  taking  the  medication  the  appellant  had  fallen  to  sleep  for varying periods of time, 24 hours after the first dosage, between 10 to

12 hours for the second dosage and, on his evidence,  about  three hours after taking the final dosage.

f)        The appellant exceeded the stated dosage and in his evidence accepted he was aware of a cumulative effect. On the appellant’s evidence he took the last tablets approximately six hours before he drove.

g)While the doctor’s evidence was that the drug was not  a sleeping tablet, rather it was to address anxiety as Mr Mansfield submitted, the doctor did go on in his evidence to discuss the possible effects of the drugs.   In his evidence he said he would only have prescribed one tablet as an initial dose as opposed to the two prescribed. He said he would only prescribe two if the person was under observation.   He also gave evidence that he would be concerned about the second and

third doses taken close together without checking them and accepted in answer to a question from the Court that he would mention the first dose effect which is a routine as the first dose is unpredictable.   He considered that in that context the usual mention of driving or fine work would be referred to on the prescription note.   In cross- examination to clarify that point he was asked if he would advise about dangers of driving:

is that for the initial full days or is it for a longer period.

He answered:

Well usually it is to cover the unpredictable first dose effect of medicines, of many medicines.

So the first few days, or a shorter period than that?…..That initial response should pass off in one – two days I would think.

[22]     In the circumstances in my judgment the Judge’s finding that the appellant was careless was a finding open to her on the evidence available to her. Given his erratic sleeping, that he had slept for significant periods of time shortly after taking the medication, but had slept for a relatively short period after taking the last dose, that he was aware of the warning that the medication may cause sleepiness and that he had exceeded the stated dosage of the medication without seeking medical advice about the consequences, the Judge was quite entitled in this case to find that the appellant was careless to drive on the morning of 22 June 2005.

[23]     There  may  have  been  more  force  in  Mr  Mansfield’s  submission  if  the appellant had complied with the prescription advice and had been taking the medication in accordance with the prescription for a week or so without any adverse side effects during the day.  In other words, if there had been an established pattern of taking the medication regularly at night, sleeping for say between seven and nine hours but being able to operate normally during the day without any adverse side effects, but that was not the case here.  The reasonableness of Mr S  ’s asserted belief that when he woke in the morning he felt fine and thus was fit to drive is frankly more than answered by the factors referred to by the Judge and identified above.

[24]     The appeal against conviction is dismissed.

Appeal against sentence

[25]     The  sentence  appeal  is   now   limited   to   the   seven   month  period   of disqualification.  The maximum sentence available on each charge is three months’ imprisonment,  a  $4,500  fine  and  a  mandatory  minimum  disqualification  of  six months unless the Court finds special reasons relating to the offence.

Disqualification

[26]     Section 81 of the Land Transport Act 1998 provides that if the Court thinks it fit, for special reasons relating to the offence, then the mandatory disqualification need not be imposed.  A special reason is a:

mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence, and one  which  the  Court  ought  properly  to  take  into  consideration  when imposing punishment

R v Crossan [1939] NI 106, 112).

[27]     The onus of proof is on the appellant: Ministry of Transport v Stewart (1989)

5 CRNZ 391.  The balance of proof is the balance of probabilities: Bell v Ministry of

Transport [1983] NZLR 229.

[28]     The Judge dealt with the matter in sentencing by saying:

For very much the same reasons as I do not accept the carelessness and the culpability was at the lower end of the scale, likewise I do not accept that there were special circumstances of the offence.  It was quite evident to Mr S  , given the effect of the initial taking of the Lorazipan that it was a powerful drug and achieved what it was prescribed for him to achieve.  To take the additional amount that he did, and his last consumption of the drug was at 4.00am, and then to be driving six hours later was, as I say, an extreme act under the circumstances.   I am not satisfied at all that special circumstances are made out and in fact I am satisfied they are not.

[29]     On my review of the background evidence I accept the Judge’s finding that the appellant  does not  meet the threshold  for  special reasons  in this case,  even

though the circumstances surrounding the offending are perhaps unusual.  The facts themselves do not make out special reasons for departing from the minimum period of disqualification.  I accept that in the circumstances and given the background of the warning, exceeding of the maximum dosage without taking advice, and driving within a relatively short period of taking the last dosage, the Judge was right to reject the submission that the defendant’s carelessness and actions fell at the lower end of carelessness and culpability.   The appellant fails to establish that special reasons should apply.

[30]     That  leaves  the  issue  of  the  disqualification  period  of  seven  months  as opposed to the minimum period of six months.  In George v Police (AP 14/00, High Court, New Plymouth, 29 June 2000) Nicholson J noted that:

the  six  months  disqualification  should  be  regarded  as  a  minimum  and nothing more and that the actual period of disqualification must depend on the variety of different circumstances that arise in different cases.  I prefer it to the view the minimum period of disqualification should not be exceeded unless there were aggravating circumstances.  It is primarily a matter in each case of balancing culpability and consequences. This progresses to consideration of other aggravating and mitigating circumstances.    In combination there can be a kaleidoscope of circumstances of infinite variety.

[31]     I remind myself that an appellate Court is not at liberty to exercise its own discretion  merely  by  way  of  substitution  for  a  different  exercise  of  the  same discretion by a lower Court, on the ground the Court itself may have exercised the discretion differently.   In the circumstances it cannot be said that seven months’ disqualification as opposed to the minimum of six months is manifestly excessive.

[32]     The appeal against sentence is also dismissed.  The period of disqualification is to apply from midnight Sunday 6 May 2007.

Venning J