Director of Public Prosecutions v Gibson (No 2)
[2024] VCC 1644
•24 January 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02051
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| DAMIEN GIBSON | Defendant |
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JUDGE: | Kelly | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2024 | |
DATE OF RULING: | 24 January 2024 | |
CASE MAY BE CITED AS: | DPP v Gibson (No 2) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1644 | |
RULING
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Subject:CRIMINAL LAW
Catchwords: Admissibility – Blood Alcohol Content – Expert Opinion on effects of alcohol on Accused – Witness evidence of Accused drinking prior to driving – Relevance – Unfair Prejudice – Alcohol level’s within legal limits – whether consumption of alcohol in contravention of warning labels relevant to assessment of recklessness – whether any potential unfairness can be resolved by jury directions.
Legislation Cited: Road Safety Act 1986; Evidence Act 2008
Ruling: Evidence of Accused’s Alcohol Consumption admissible
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr A. Malik | Office of Public Prosecutions |
| For the Defendant | Mr P. Morrissey SC | Melasecca, Kelly & Zayler Barristers and Solicitors |
HIS HONOUR:
Introduction
1The Accused, Mr Damien Gibson has been charged with 1 count of Culpable Driving Causing Death and 6 counts of Conduct Endangering Life.
2It is alleged that Mr Gibson on 11 September 2021 consumed alcohol prior to operating an All-Terrain Vehicle (‘ATV’) on a property in Rosedale. The vehicle at the time conveyed Mr Gibson along with seven children, all of whom were below the age of 12. The Defence concedes that the vehicle was overloaded given the maximum capacity of the vehicle was 4 passengers. It is further conceded that each passenger was under the age of 12.
3This is an application for a Ruling on the admissibility of evidence relating to alcohol consumption by the Accused on the day of the fatal roll over. In issue is the admissibility of the following evidence:
· The result of a Preliminary Breath Test (‘PBT’) of the Accused conducted at 4:43pm, which yielded a possible reading of between 0.048g/210L and 0.065g/210L;
· The opinion evidence of Dr Angela Sungaila relating to the possible effects of alcohol on the Accused; and
· Witness evidence observing Mr Gibson drinking alcohol on the day of the incident prior to driving the vehicle.
4A blood sample provided at the hospital two hours and forty five minutes after the crash demonstrated a blood alcohol level of 0.039%. Admission of this evidence was not pressed in oral submissions by the Prosecution given agreement by both experts that the PBT provides the more accurate indication of the Accused’s blood alcohol concentration at the time of the incident.
Dr Angela Sungaila evidence
5Dr Angela Sungaila, a Forensic Physician employed by the Victorian Institute of Forensic Medicine provided a report dated 18 January 2021 addressing the possible impairment caused by alcohol present in the Accused. In her report, she formed the following opinions:
· The PBT gives the more accurate snapshot of the blood alcohol level at the time of the crash; and
· Mr Gibson exhibited disinhibited behaviour in the time before the crash, demonstrated by his disregard of the safety requirements of the vehicle and printed vehicle warnings; and
· The presence of alcohol may have diminished his ability to divide his attention between the operation of the vehicle, monitoring of the surface and monitoring of his passengers.
6At the committal hearing on 7 November 2022, Dr Sungaila made the concession that the ‘only predictive factor (in relation to the effect of alcohol upon a driver) would be the personality of the person and, to some extent, the affect that alcohol has on their brain’. She agreed that she had not been given sufficient material to form a profile of the Accused and she had not met him. Accordingly, she was not seized of sufficient material to predict the effect upon the Accused of his alcohol consumption on 11 September 2022.
Dr Byron Collins evidence
7Dr Byron Collins, a Consultant Forensic Pathologist provided a report for the Accused’s solicitors dated 17 December 2023. In it, he assesses any possible impairment on the Accused at the time of the trip and roll incident and provides an opinion on the correctness of Dr Sungaila’s evidence. He provided the following comment:
In this case, it is pivotal to the probative value of Dr Sungaila’s report, that she does not indicate Mr Gibson would (emphasis added), as a consequence of his relatively low blood alcohol concentration, have been sufficiently impaired to be unable to properly and safely drive his vehicle, as noted at paragraphs 37-42.
8He agreed with Dr Sungaila’s view that the PBT provides the more accurate snapshot of the blood alcohol level at the time of the crash, but expressed concern about the possibility of the PBT reading being compromised by regurgitation which could produce a falsely elevated blood alcohol reading. He formed the view that:
If the Court were to accept that at the time of incident, the Accused’s blood alcohol concentration was less than 0.05%, it would not be scientifically sound to find that alcohol played any measurable or significant part in the event under investigation.
9That opinion was provided to Dr Sungaila and she does not take issue with it.
Vehicle Warnings
10In the accompanying owner’s manual for the vehicle dated 8 December 2020, were a number of relevant warnings, some of which are extracted below:
Failure to heed the warnings and safety precautions contained in this manual can result in severe injury or death. Your POLARIS vehicle is not a toy and can be hazardous to operate. This vehicle handles differently than cars, trucks or other off-road vehicles. A collision or rollover can occur quickly, even during routine maneuvres like turning, or driving on hills or over obstacles, if you fail to take proper precautions.
Never operate this vehicle under the influence of drugs or alcohol, as these conditions impair judgement and reduce the operator’s ability to react.
Never consume alcohol or drugs before or while operating this vehicle. Operating this vehicle after consuming alcohol or drugs could adversely affect operator judgment, reaction time, balance and perception.
Maximum capacity – Occupants: 4 (Driver + 3 passengers)
No person under the age of 12 may ride as a passenger in this vehicle. All riders must be able to sit with backs against the seat, both feet flat on the floor and both hands on the steering wheel (if driving) or on a passenger hand hold.
11Similar warnings were contained inside the vehicle itself, depicted in a combination of graphics with bright yellow signs and the following wording which was pasted on the centre console of the ATV:
Require Proper Use of Your Vehicle
Do your part to prevent injuries:
• Do not allow careless or reckless driving.
• Make sure operators are 16 or older with a valid driver’s license.
• Do not let people drive or ride after using alcohol or drugs.
• Do not allow operation on public roads (unless designated for off-highway vehicle access) - collisions with cars and trucks can occur.
• Do not exceed seating capacity: 2 occupants.
Prosecution Submissions
12Mr Malik on behalf of the Prosecution contends that the evidence of Dr Sungaila is relevant to whether the Accused was exhibiting disinhibited behaviour, by ignoring specific warnings in the ATV’s Owner’s Manual and affixed to the vehicle mandating safe use of the ATV. Accordingly, Mr Malik submits that this could rationally affect the jury’s assessment of the probability that the Accused engaged in risk-taking behaviour by driving in an erratic or abrupt manner and not ensuring that the passengers in the vehicle were adequately restrained.
13Mr Malik conceded that Dr Sungaila’s evidence does not positively suggest that the Accused was measurably alcohol-affected at the time of the roll-over or that he would have been affected given his PBT reading, and she cannot assert that the Accused was disinhibited by his earlier use of alcohol. However, it was submitted that the evidence of alcohol consumption is nonetheless relevant as one possible explanation for the Accused’s decision to engage in risk-taking behaviour by driving the vehicle. He relies on it as also possibly explaining the manner in which the ATV was driven: it is, he contends, one of a constellation of factors leading up to the fatal incident.
14It was put to the Court that any unfair prejudice to the Accused could be appropriately managed through cross-examination and directions to the jury. The directions that could guard against the jury’s misuse of the evidence were not identified.
Defence Submissions
15Mr Morrissey on behalf of the Accused submitted that both the PBT result, and the opinion evidence of Dr Sungaila should be excluded on the basis of irrelevance and unfair prejudice to the Accused.
16It was submitted that there was no evidence suggesting that alcohol did or probably did play any role in the actual driving and handling of the ATV at the time of the fatal incident. He reminded the court that the legal limit in Victoria is 0.05g/210L pursuant to section 3(1) of the Road Safety Act 1986 and that there was no evidence demonstrating that the Accused was over the legal limit at the time of driving the vehicle.
17He argued that there was no evidence of erratic driving immediately prior to the fatal roll over and the Prosecution cannot point to any independent evidence of impaired driving leading to the abrupt right turn which resulted in the ATV flipping and killing its six year old passenger. As such, he argued that there is no indicia of alcohol-induced impaired functioning which renders the evidence of the Accused’s modest PBT reading relevant and admissible. Mr Morrissey submitted that the evidence provided by the reconstructionist demonstrated that the vehicle was travelling at a modest speed and clearly slowing down when the fatal roll occurred. He urged the court to scrutinise the quality of the driving, to the extent that it can be known, in assessing what work evidence of alcohol consumption has to do in explaining the accused’s control, management and handling of the ATV.
18As to Dr Sungaila’s evidence, Mr Morrissey pointed out that her evidence does not suggest that the Accused was in fact disinhibited by alcohol on the day of the incident, but rather, that it is merely a possibility. I was taken to her evidence at committal where she spoke about the importance of an individual’s personal characteristics in assessing the impact of alcohol on disinhibition and conceded that she did not have sufficient material to form a profile of this particular Accused.
19Mr Morrissey further submitted in relation to the observations of witnesses of the Accused’s alcohol consumption on the day that if the other evidence were to be excluded, this would limit its relevance and probative value and would likely lead to conjecture and speculation by the jury.
20It was submitted that any unfair prejudice that would arise from the evidence being admitted could not properly be ameliorated by cross-examination or jury directions and that in such a case as this involving the serious injury and death of young children, the heightened emotional environment in which the trial is conducted could affect the jury’s capacity to fairly consider the evidence without misusing the evidence of consumption or elevating its importance. He argued that it was natural in such cases underpinned by tragedy and the loss of a young innocent life, for a jury to cast about for blame and in that environment any evidence of alcohol consumption is ripe for misuse.
Ruling
21I had originally considered that the evidence of Dr Sungaila may bear sufficiently on the Accused’s decision-making in electing to drive the ATV with seven underaged children on board, that it should be admitted for that purpose. Mr Malik argued that it should be admitted for that purpose, but also as a possible explanation of the quality of the Accused’s driving and the decision-making he engaged in immediately prior to the fatal roll over. The problem with admitting it for the first purpose only is that I would need to direct the jury that they could not consider it in assessing the Accused’s driving and that may impose an insuperable artificiality in the way the evidence is considered by the jury. Juries are considered to heed judicial directions, however, and that problem is not a bar to the admission of the evidence. The problem with acceding to Mr Malik’s submission that the evidence is relevant and admissible in explaining the Accused’s driving behaviour is that Dr Collins has provided an opinion that,
If the court were to accept that at the time of the incident the Accused’s blood alcohol concentration was less than 0.05%, it would not be scientifically sound to find that alcohol played any measurable or significant part in the event under investigation.
22Dr Collins was made available for cross-examination during argument, but the Prosecution indicated that they did not propose to ask any questions of him. Mr Malik told the court that Dr Sungaila had been provided with a copy of Dr Collins’ report and did not dispute the opinion I have just recited. Dr Sungaila agreed with Dr Collins that the PBT provided a surer indication of the alcohol in the Accused’s blood at the time of driving than the subsequent blood sample. At 16:45 hours on 11 September, a PBT returned a result of 0.045%, which when the instrument was recalibrated, gave a lowest possible reading of 0.048%. The margin of error also allows for an addition of 14% which produces a highest possible reading of 0.065%. The blood sample taken at 18:45 registered a concentration of 0.039%.
23There is no dispute between the two experts that the Accused’s blood alcohol concentration at the time of driving was likely 0.048%. Were the evidence of Dr Sungaila and Dr Collins to be led, the jury would be directed that essentially there is no dispute between them that a reading of 0.048% is such that it would not be scientifically sound to find that alcohol played any measurable or significant part in the driving they are obliged to consider. Whilst the model expert evidence direction assures the jury that they can reject an expert’s evidence, in this case both the Prosecution and Defence experts agree that alcohol played no discernible role in the quality of the Accused’s driving, his management or control of his vehicle and there would be no sound basis for the jury’s rejection of the experts' joint position. Given the state of their evidence, the evidence of the Accused’s PBT is irrelevant.
24If relevant because it may have had some unmeasurable effect on the Accused’s decision-making or control of his vehicle or because it may nonetheless have played a less than significant role and a less than measurable one, I would exclude the evidence pursuant to section 137 of the Evidence Act 2008 because evidence adduced to demonstrate such a nebulous nexus between consumption and collision is likely to be misused or elevated by the jury to a status that is unwarranted in this case.
25However, evidence that the accused consumed alcohol prior to driving the ATV is relevant to an assessment of his recklessness in electing to drive in defiance of the notice posted in the cab of the ATV which reads, “Do not let people drive or ride after using alcohol or drugs.” The Prosecution case for charges 2-7 inclusive contains the particular that the Accused “was driving whilst under the influence of alcohol...”. The evidence from the experts does not permit the Prosecution to demonstrate that his driving was so influenced, but the charge of Culpable Drive Causing Death is put on the basis of recklessness and whilst that recklessness must attach to the quality of his driving as opposed to his decision to drive, the Prosecution has relied upon a number of breached warnings to demonstrate his recklessness in electing to drive with 7 underaged and unsecured passengers. From that recklessness, the Prosecution will be inviting the jury to infer that the Accused’s driving was performed with a signal disregard for the safety of his passengers. The contravention of the warning in the ATV’s cab illuminates the Accused’s state of reckless disregard for the safety of his passengers and could be used by the jury in the way contended for by the Prosecution.
26I therefore propose to admit the evidence of the Accused’s drinking in contravention of the warning in the vehicle. I accept that the evidence could rationally affect the jury’s assessment of the probability that the Accused engaged in risk-taking behaviour by driving with seven unrestrained children in a vehicle incapable of adequately restraining or protecting them. That decision is so closely temporally linked to the driving itself that an inference of recklessness in driving, handling or controlling the vehicle could be made as a consequence of it and the decision to drive in breach of the other warnings identified by the Prosecution. The jury will need to be warned about the limited role this evidence plays in the trial, but I have no reason to doubt that the jury in this case will act only on the evidence for the purpose identified.
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