Citation: R v Durham [2025] NSWDC 235
Court: District Court of New South Wales
Court: District Court of New South Wales
Date: 1 July 2025
Judge: Lerve DCJ
Background
The accused was charged with the aggravated offence of driving under the influence of intoxicating liquor occasioning grievous bodily harm, with the aggravating factor being a blood alcohol concentration (BAC) of 0.15 or above. The charge arose from a single-vehicle crash near Young in southern New South Wales on 23 July 2023, in which the accused's Land Cruiser struck a tree, seriously injuring the front passenger.
The accused pleaded guilty to the non-aggravated statutory alternative but not guilty to the count on the indictment. The Crown declined to accept the limited plea, so the matter proceeded to a judge-alone trial. The only live issue was whether the accused's BAC was at or above 0.15 at the time of the impact.
Both parties called expert pharmacologists. The Crown's expert maintained the accused's BAC at the time of impact was well above 0.15. The accused's expert contended that, because the accused was hyperglycaemic (suffering high blood sugar), delayed gastric emptying may have meant his BAC was still rising at the time of the crash, making it a reasonable possibility that his BAC was below 0.15.
Legal Issues
- Whether the accused's expert, Professor Christie, was qualified to give an opinion about the effect of hyperglycaemia on gastric emptying, given that his expertise was in pharmacology rather than endocrinology.
- Whether, on the totality of the evidence, the Crown proved beyond reasonable doubt that the accused's BAC at the time of the impact was at or above 0.15.
Decision
Issue 1: Admissibility and weight of Professor Christie's expert evidence
Lerve DCJ rejected Professor Christie's evidence on the endocrine system, accepting the Crown's objection under the framework established by sections 76 and 79 of the Evidence Act 1995 and the principles in Makita (Australia) Pty Ltd v Sproules and R v Bonython. The court found that specialised knowledge cannot be acquired by reading relevant articles over a period of a few weeks (at [65]). The analogy drawn was that of a cardiologist reading medical journal articles and then purporting to give expert evidence outside their clinical specialty.
The court observed that Professor Christie, despite being a world-class pharmacologist, had acknowledged in cross-examination that he had not encountered the key gastric emptying literature until he began researching this case (at [58], [61]). His evidence on the endocrine question was therefore excluded. The court added, in the alternative, that even if the evidence had been admitted it would have been given so little weight as to have no effect on the outcome (at [66]).
Issue 2: Whether the accused's BAC was at or above 0.15 at the time of impact
The court accepted the evidence of the Crown's expert, Mr Ryan, who calculated the accused's BAC at the time of impact as not less than 0.174 g/100ml based on the breath analysis result, and not less than 0.178 g/100ml based on the blood result (at [41]). Those figures were supported by the agreed facts, including the breath test reading of 0.164 obtained at 10.24pm and the blood test reading of 0.146 obtained at 12.38am, which itself indicated the accused was in the elimination phase by that point (at [70]-[71]).
The court also found that Professor Christie's opinion that the accused's BAC was possibly under 0.15 at the time of impact was not supported by any back-calculation, making it insufficiently reasoned (at [67]-[68]). The proposition that diabetes had delayed alcohol absorption in this case was, on the evidence before the court, entirely speculative (at [73]). With Professor Christie's evidence set aside, the court found the verdict of guilty to the count on the indictment was inevitable (at [74]).
Orders Made
- Verdict of guilty to the count on the indictment.
- The court indicated, subject to submissions, a preliminary view that sentencing would proceed on the basis of the BAC reading set out in paragraph 11 of the agreed facts, consistent with the principles in Cheung v The Queen (2001) 209 CLR 1 and Filippou v The Queen (2015) 256 CLR 47.
Key Takeaways
- A pharmacologist does not become an expert in endocrinology by reading relevant journal articles over a few weeks. The District Court held that expertise must be derived from genuine training, study or experience in the relevant field, not from targeted pre-trial research (at [65]).
- Under sections 76 and 79 of the Evidence Act 1995, an expert's opinion is only admissible to the extent it is wholly or substantially based on specialised knowledge within the expert's actual area of qualification. A broad professional eminence in one discipline does not automatically extend to a neighbouring discipline (at [49]-[65]).
- Where expert opinion evidence is admitted but is inadequately reasoned, particularly where it asserts a conclusion without providing a supporting calculation or methodology, courts may give it so little weight as to be inconsequential (at [66]-[68]).
- In a judge-alone criminal trial, the tribunal of fact may reject expert evidence on admissibility grounds and, in the alternative, assess the weight of that evidence if the admissibility ruling is wrong. The District Court applied both analyses here to reach the same outcome (at [65]-[66]).
- Blood test and breath test results taken after an impact, read alongside agreed facts about drinking history and observed intoxication, can provide a sufficient evidentiary foundation for a finding of aggravated BAC beyond reasonable doubt, even where the defence raises a medical explanation for delayed absorption (at [70]-[73]).
Legislation and Cases Referenced
Legislation
- Crimes Act , 1900
- Evidence Act , 1995
- Road Transport Act , 2013
Cases
- Atkinson v Coles Supermarkets [2020] NSWSC 1063
- Cheung v The Queen (2001) 209 CLR 1
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR [2001] NSWCA 305
- R v Bonython (1984) 38 SASR 45