By Paul Gregoire and Ugur Nedim
At 4.51 am on 19 December 2019, Nicholas Parker was driving his father’s car along Kurrajong Road in the NSW town of Richmond, when the 19-year-old apprentice electrician fell asleep, veered across to the other side of the road and hit two cyclists riding along the shoulder of the thoroughfare.
One cyclist was killed instantly. The other died later that day in hospital.
Parker was on his way to work at the time. He was driving on his P2 provisional licence, which he’d received three months earlier. The strip of road he was driving along when the collision occurred consisted of two lanes with a broken white line down the middle. And the speed limit was 80 km/h.
The stretch of road had no lighting, and the weather was fine. After Parker’s car careened onto the wrong side of the road, the vehicle hit the guardrail, prior to colliding head on with the first and then the second cyclist, who were riding in single file and using bright bike lights.
Forensic examination showed there were no skid marks on the street or signs of breaking fast. The vehicle itself didn’t have any mechanical issues, while an initial breath test and a subsequent blood test turned up no traces of alcohol or drugs in the driver’s system.
Rebecca Patterson was driving in front of Parker. She said she’d noticed the headlights of the vehicle behind her swerve once to the other side of the road. She heard a thud, which she considered was the car hitting the guardrail, and when it returned to the correct side, it had one broken headlight.
Cameron Cox, a passenger in a truck driving behind Parker, stated he’d seen the car twice veer across to the wrong side of the road before swerving back to the correct side, prior to the third occasion, when the vehicle drifted to the opposite side and ran into the cyclists.
Acquitted of primary charges
Parker was charged with two counts of dangerous driving causing death, contrary to section 52A(1)(c) of the Crimes Act 1900 (NSW), which is an offence that carries a maximum penalty of 10 years gaol time.
The young man did not provide a statement at the station following the incident, but he did provide a written statement to Fairfield Police Station, in which he asserted that he honestly believed he was in a fit state to drive, and he had no reason to think he might fall asleep at the wheel.
After having pleaded not guilty to the two offences on 12 February, Parker was subsequently tried, without a jury, before NSW District Court Judge Deborah Payne in early August that same year, and the judicial officer acquitted him of the two dangerous driving charges.
The legal defence of automatism
The basis of the acquittal was the legal defence of automatism, which makes clear that a person is not criminal responsible for their actions where some external factor – such as a fit or falling asleep without warning – caused the person to engage in conduct which would otherwise amount to a criminal offence, provided the actions were not caused by a mental health condition, which can amount to a separate and distinct legal defence.
In the context of falling asleep without warning whilst driving, the defence is known as the ‘Jiminez defence,’ after a case of the same name.
Where evidence is raised of automatism, the onus shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply to the situation at hand.
The defendant is entitled to an acquittal if the prosecution is unable to do this.
Convicted on backups
However, Parker had also been charged with two backup offences, which were triggered if the primary charges resulted in no conviction.
This driving offence carries a maximum $3,300 fine and/or up to 18 months inside, in the case of it being a first offence. But if it is a second or subsequent offence, it carries up to a $5,500 fine and/or up to 2 years behind bars.
The second backup offence was having broken the rule of keeping to the left lane of a road with a dividing line, unless overtaking another vehicle, performing a U-turn or avoiding an obstruction, which is contrary to regulation 132(2) of the Road Rules 2014 (NSW).
Failure to comply with this regulation can result in a $2,200 fine.
Parker once again appeared before Judge Payne on 21 January 2022, and he was found guilty of negligent driving occasioning death. And when he returned to court for sentencing on 1 April, the apprentice electrician pleaded guilty to having broken regulation 132 of the Road Rules.
Her Honour then sentenced Parker to a 12 month intensive correction order, which is a non-custodial sentence, involving a person living in the community under strict conditions they must abide by. The ICO included being required to perform 200 hours of community service.
And for having broken the road rule, Parker was fined $1,000.
An honest and reasonable mistake of fact
Parker appealed against his negligent driving conviction to the NSW Court of Criminal Appeal (NSWCCA) on 21 August this year. He did so based on two grounds.
The first was that the conviction was unreasonable or not supported, due to material errors in connection with key findings, while the second asserted that the original judge failed to provide sufficient reasons for finding there wasn’t an “honest and reasonable mistake of fact” involved.
NSWCCA Justice Nicholas Chen pointed out that in terms of the dangerous and negligent driving offences, “a person who falls asleep at the wheel of a car is not necessarily guilty”, as these crimes are strict liability offences, and not absolute liability offences.
A strict liability offence is one whereby the prosecution does not need to prove a mental fault element, such as intent or negligence. Legal defences are available those accused of these offences, including the legal defence of honest and reasonable mistake.
However, in terms of an absolute liability offence, the prosecution does not have to establish a mental fault element, and no legal defences are available.
As Justice Chen further explained, in the case of dangerous or negligent driving the legal defence of an honest and reasonable mistake is available, and if the court finds this to be true, then it sees the driver who has acted in this way found innocent.
So, if this ground of exculpation is put to the court it is then up to the prosecution to prove “either that the accused did not honestly hold the belief, or that any such belief was not reasonable”.
And in terms of Parker’s two trials, Judge Payne found that the defence of honest and reasonable mistake of fact did serve to prove that the accused wasn’t guilty of dangerous driving, but the same judicial officer then found the defence didn’t hold when it came to the negligent driving offence.
During the first trial, the prosecution argued that Cox’s evidence regarding Parker having swerved twice to the wrong side prior to the third lethal time, proved he didn’t have a reasonable belief that he would not fall asleep, as the behaviour shows that he’d nodded off twice before hitting the riders.
Judge Payne didn’t accept Cox’s evidence, however, due to the traumatic nature of the incident and the fact that he’d only provided his account of what happened for the first time a year and seven months after the incident. Instead, her Honour considered Patterson’s version more reliable.
But the prosecution argued during the second trial that due to the fact that Parker did fall asleep at the wheel, there must have been a period prior to that, when the driver would have been aware that he was at risk of drifting off. And Judge Payne accepted this argument and found him guilty.
Grounds of appeal
Parker argued that Judge Payne had made errors in finding that there was no evidence to support the claim that the driver had just fallen asleep, as well as in determining that he did have some warning that he would end up on the other side of the road.
In terms of no evidence to support he’d simply fallen asleep, Justice Chen found there was evidence in this regard, including statements made by Parker just after the collision, the evidence that Patterson had provided, and a professor had testified that it is possible to just fall asleep.
So, his Honour found that this part of the ground was made out, but when it came to ruling out whether Parker hadn’t had any warning that he could veer to the other side, this did not hold, as according to the professor, most people do have an awareness that they may be about to fall asleep.
On regarding the second ground, that there was inconsistency in finding that an honest mistake had occurred in relation to dangerous driving but not negligent driving, the appeals court judge found that ground to be made out as well.
“I consider the verdicts to be inconsistent,” his Honour added. “Shortly stated, that is because a careful comparison between the Crown cases for each offence demonstrates that those cases were relevantly indistinguishable”.
Justice Chen added that whilst there could be different underlying causes between dangerous and negligent offences, this was not what happened in Parker’s case, as his Honour found that the conduct described and the prosecution’s arguments “rested on the same essential facts”.
Acquitted of negligent driving
On 25 September, Justice Chen ordered that Parker be acquitted, rather than stand retrial, based on the incident having happened four years ago, when the young man was only 19, that the Crown case was not compelling, and that the appellant had already served his sentence in its entirety.
And Chief Judge at Common Law Robert Beech-Jones and NSWCCA Justice Hament Dhanji both agreed with their colleague’s findings.