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Court of Criminal Appeal 19 July 2024

R v Whitfield

[2024] NSWCCA 124

Traffic & driving
CRIMINAL LAW APPEAL CROWN APPEAL EVIDENCE ACT 1995 S 79

Citation: R v Whitfield [2024] NSWCCA 124
Court: NSW Court of Criminal Appeal
Date: 19 July 2024
Judge(s): Harrison CJ at CL; Davies J; N Adams J

Background

The accused was charged with dangerous navigation causing death under s 52B(1)(c) of the Crimes Act 1900 (NSW), arising from a jet ski accident on Port Hacking on Christmas Eve 2021. The accused was operating the vessel when his passenger reached forward, interfered with the throttle and steering, and the resulting impact caused the passenger's death. The parties did not dispute that the deceased had physically intervened with the controls immediately before the impact.

The Crown's case, as particularised, relied on the accused's alleged intoxication and the speed of the jet ski as circumstances contributing to dangerous navigation. To support those allegations, the Crown sought to tender evidence from two pharmacology and toxicology experts, blood alcohol content readings for both the accused and the deceased, and evidence of the jet ski's speed.

The trial judge excluded all of that evidence. The Director of Public Prosecutions appealed under s 5F(3A) of the Criminal Appeal Act 1912, which permits an interlocutory Crown appeal only where the impugned ruling eliminates or substantially weakens the prosecution's case.

  • Whether the trial judge erred in excluding the opinion evidence of a pharmacologist under s 79 of the Evidence Act 1995 (the provision permitting expert opinion evidence based on specialised knowledge)
  • Whether the trial judge erred in excluding the same pharmacologist's evidence under s 137 of the Evidence Act 1995 (which requires exclusion where the probative value of evidence is outweighed by the danger of unfair prejudice)
  • Whether the trial judge erred in excluding the evidence of a forensic pharmacologist and toxicologist
  • Whether the trial judge erred in excluding the blood alcohol content evidence of the accused as a consequence of excluding the expert evidence
  • Whether the trial judge erred in excluding the blood alcohol content evidence of the deceased
  • Whether the trial judge erred in ruling that the Crown could not rely on the speed of the jet ski as a particular of the dangerous manner of navigation

Decision

The Court of Criminal Appeal upheld all six grounds of appeal. Harrison CJ at CL, with Davies J and N Adams J agreeing, found that the trial judge's exclusion of the expert toxicology and pharmacology evidence, the blood alcohol content readings, and the speed evidence was erroneous. The exclusions collectively and substantially weakened the Crown case, satisfying the threshold for an interlocutory Crown appeal under s 5F(3A).

The Court confirmed that experts possessing the relevant specialised knowledge from training, study or experience are entitled under s 79 of the Evidence Act 1995 to offer opinion evidence within that field. The trial judge's reasons for excluding the experts did not correctly apply that standard.

Despite upholding the appeal, the Court flagged significant difficulties with the Crown case as particularised. Harrison CJ at CL observed that much of the relevance of the accused's intoxication appeared confined to his acts of navigation occurring before the deceased seized the controls. His Honour noted the conceptual difficulty in characterising the accused as navigating the vessel at the moment of impact, given that the two principal indicia of navigation, steering and throttle, had at that point been taken from his control by the deceased.

N Adams J added that the Court's role in this interlocutory appeal was limited to determining whether error had been established in the trial judge's exclusion rulings. The Court was not invited to rule on whether, for example, permitting an intoxicated person to board the vessel could itself constitute an act of dangerous navigation. That question, and others arising from the difficulties in the particularised Crown case, remained open for consideration at trial.

Orders Made

No orders were made in this decision.

Key Takeaways

  • All six grounds of the Crown's interlocutory appeal were upheld, with the Court of Criminal Appeal finding that the trial judge erred in excluding expert pharmacology and toxicology evidence, blood alcohol content readings, and speed evidence in a dangerous navigation causing death trial.
  • Under s 5F(3A) of the Criminal Appeal Act 1912, a Crown appeal against an evidentiary ruling on admissibility is only available where the ruling eliminates or substantially weakens the prosecution's case; the Court found that threshold was met here.
  • Expert opinion evidence under s 79 of the Evidence Act 1995 is admissible where the witness possesses specialised knowledge based on training, study or experience, and the trial judge's reasons for exclusion did not correctly apply that standard.
  • Notwithstanding the successful appeal, the Court identified substantial conceptual difficulties in the Crown's particularised case: where a passenger had seized control of the steering and throttle at the moment of impact, it was difficult to characterise the accused as simultaneously navigating the vessel in a dangerous manner.
  • The interlocutory appeal did not resolve all outstanding questions about the Crown case, including whether permitting an intoxicated person to board a vessel can constitute dangerous navigation; those issues remain live at trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52B(1)
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Evidence Act 1995 (NSW), ss 55, 79, 135, 137

Cases
- Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42
- Reg v Silverlock (1894) 2 QB 766
- Lang v The Queen [2023] HCA 29