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Court of Criminal Appeal 4 November 2020

R v Riley, Christopher

[2020] NSWCCA 283

DrugsTraffic & driving
APPEALS NATURE OF APPEAL EXCLU SION OF EVIDENCE S 138 OF THE EVIDENCE ACT PROBATIVE VALUE RELIABILITY

Citation: R v Riley, Christopher [2020] NSWCCA 283
Court: Court of Criminal Appeal, New South Wales
Date: 4 November 2020
Judge(s): Bathurst CJ; Button J; Wilson J

Background

The respondent was charged with dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm, both whilst under the influence of a drug, following a vehicle rollover near Gilgandra on 27 December 2016. A blood sample taken from the respondent at hospital was analysed, revealing tetrahydrocannabinol (THC, the psychoactive component of cannabis) along with three other drugs. A pharmacologist concluded that the respondent's driving ability would have been impaired by cannabis at the time of the collision.

The blood sample was collected using a two-cap system: an inner airtight cap protecting the scientific integrity of the sample, and an outer tamper-evident cap required under the Road Transport Act 2013 (NSW). When the sample arrived at the laboratory, the outer tamper-evident cap was missing, though the inner cap remained in place. The trial judge accepted the nurse's evidence that she had affixed the outer cap when collecting the sample, leaving its disappearance unexplained.

The trial judge ruled the expert evidence inadmissible under s 138 of the Evidence Act 1995 (NSW), holding that the evidence had been unlawfully obtained (due to the missing cap) and that its probative value was not high because the integrity of the sample could not be guaranteed. The Director of Public Prosecutions appealed that ruling.

  • Whether the trial judge erred in assessing the probative value of the expert evidence for the purposes of s 138(3)(a) of the Evidence Act
  • Whether the trial judge erred in assessing the gravity of the contravention of the Road Transport Act for the purposes of s 138(3)(d)
  • Whether the trial judge erred in concluding that the desirability of admitting the evidence did not outweigh the undesirability of admitting improperly obtained evidence under s 138
  • Whether appellate review of a s 138 decision is subject to the judicial restraint described in House v The King (1936) 55 CLR 499

Decision

Probative value assessed incorrectly. The Court held unanimously that the trial judge's assessment of probative value was wrong in law. Under the High Court's approach in IMM v The Queen (2016) 257 CLR 300, probative value must be assessed by taking the evidence at its highest, assuming the jury could rationally accept it. Doubts about the reliability of the blood sample went to weight, not probative value, and were matters for the jury to assess. On that correct approach, the probative value of the expert evidence was very high.

Balancing under s 138 reconsidered. Because the trial judge's error in assessing probative value infected the entire s 138 balancing exercise, the Court conducted the exercise afresh. Weighing the relevant matters under s 138(3), including the seriousness of the charges, the centrality of the evidence to the Crown case, and the nature and gravity of the procedural breach, the Court concluded that the desirability of admitting the evidence outweighed the undesirability of appearing to condone the mishandling of the sample.

Nature of appellate review left open. All three judges declined to resolve the question of whether s 138 decisions attract House v The King style restraint on appeal, finding it unnecessary to do so. Bathurst CJ and Wilson J expressed the provisional view that s 138 requires a binary choice with only one correct answer, suggesting such restraint may not apply. Button J noted that the language of "desirability" and the non-exhaustive list of considerations in s 138(3) may complicate that characterisation, without reaching a concluded view.

Orders Made

  • Appeal allowed
  • Ruling of Baly SC DCJ of 3 December 2019 excluding the evidence of Mr Brett Fletcher and Dr Judith Perl set aside
  • Evidence of Mr Fletcher and Dr Perl declared admissible in the proceedings

Key Takeaways

  • Under s 138 of the Evidence Act, probative value must be assessed by taking the evidence at its highest, assuming the jury could rationally accept it. Reliability concerns, including doubts about sample integrity, are matters for the jury and do not reduce probative value at the admissibility stage.

  • A procedural breach in the handling of a blood sample does not automatically result in exclusion. The Court of Criminal Appeal confirmed that even where evidence is unlawfully obtained, the s 138 balancing exercise requires close attention to the gravity of the breach, the seriousness of the alleged offending, and the importance of the evidence to the prosecution.

  • In performing the s 138 balancing exercise afresh, the Court found the combination of a highly serious charge and the central importance of the contested evidence sufficient to tip the balance in favour of admission, despite the unexplained disappearance of the tamper-evident cap.

  • The question of whether House v The King restraint applies to appellate review of s 138 decisions remains formally unresolved in New South Wales, though the Court noted recent authority pointing away from such restraint where the statutory provision admits of only one correct answer.

  • Button J's observations add some nuance: the language of "desirability" and the open-ended nature of the s 138(3) considerations may bear on whether the provision truly yields a single right answer in every case.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 138
- Crimes Act 1900 (NSW), ss 52A, 52AA
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Road Transport Act 2013 (NSW), Schedule 3, Part 4, cl 24

Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
- Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22
- Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
- Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
- Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
- Kadir v The Queen [2020] HCA 1
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- Brown v Director of Public Prosecutions (NSW) [2018] NSWCCA 94
- Various Victorian Court of Appeal decisions including Director of Public Prosecutions v Marijancevic [2011] VSCA 355 and McCartney v R [2012] VSCA 268