DPP v Hore - [2004] VSC 20

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7499 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS (ON BEHALF OF FARNHAM ALLAN MOLESWORTH)	Appellant
v
RUSSELL GEOFFREY HORE	Respondent

and

No. 7500 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS (ON BEHALF OF ROSEMARY ANNE UWINS)	Appellant
v
SIMON ASKWITH	Respondent

JUDGE:	KAYE J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 February 2004
DATE OF JUDGMENT:	23 February 2004
CASE MAY BE CITED AS:	Director of Public Prosecutions v Hore and Anor
MEDIUM NEUTRAL CITATION:	[2004] VSC 20	Revised 14 December 2004

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EVIDENCE – Expert evidence – Admissibility s.49 Road Safety Act 1986

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C Beale	Solicitor to the Office of Public Prosecutions
For the Respondents	Mr G Hardy	Tyler Tipping and Moore

HIS HONOUR:

These appeals concern two proceedings which came before the Magistrates’ Court at Moe on 8 August 2003. The appeals raise the one identical issue, namely, the admissibility of the evidence of an expert witness in proceedings for an offence under s.49(1)(g) of the Road Safety Act 1986 (“the Act”).

Molesworth v Hore – Magistrates’ Court Proceedings

At 10.10pm on 2 August 2002 Senior Constable Molesworth intercepted a motor vehicle driven by the appellant Russell Hore in Trafalgar. Senior Constable Molesworth administered a preliminary breath test to Mr Hore which indicated the presence of alcohol in Mr Hore’s blood. Mr Hore was then accompanied to the Moe Police Station for a breath test. That test was conducted at 10.40pm by Sergeant Nathan Prowd, an authorised operator of a breath analysing instrument. The test produced a reading of 0.07 grams of alcohol per 100 millilitres of blood (that is 0.070 per centum). Mr Hore was charged with offences under s.49(1)(b) and s.49(1)(f) of the Act. His solicitors served a notice on the informant pursuant to s.58(2) of the Road Safety Act requiring the attendance of the operator of the breath analysing instrument at the hearing at the Magistrates’ Court.

The hearing of the charges against Mr Hore commenced in the morning of 8 August 2003. After the informant gave evidence, Sergeant Prowd gave evidence. He stated that, to his understanding, if anything was wrong with the machine, it would not produce the certificate. In cross examination he conceded that the machine might not give any indication to the operator that it was not operating properly. At the conclusion of the evidence called on behalf of the informant, Mr Hore gave evidence as to his consumption of alcohol on the evening in question. He called a number of witnesses who supported his account of how much alcohol he had consumed.

Counsel for Mr Hore then called Mr Graeme Young, a consulting analytical chemist. The prosecutor objected to Mr Young’s qualifications to give evidence. After hearing further evidence about Mr Young’s qualifications, the Magistrate overruled that objection. In the course of his objection the prosecutor pointed out that, if he was qualified, the expert could only give evidence under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Hore

Details

AGLC: Director of Public Prosecutions v Hore [2004] VSC 20
Case: [2004] VSC 20
Decision Date: 23 February 2004

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions v Hore, the defendant was charged with driving while disqualified, a matter which came before the Supreme Court of South Australia. Hore, who had a history of driving offenses, was caught driving without a valid license. The issue at hand was whether the prosecution could rely on expert evidence to establish that the defendant was indeed the driver of the vehicle in question, given the absence of eyewitness testimony.

The court was tasked with determining the admissibility of expert evidence under section 49 of the Road Safety Act 1986. The legal question centred on whether expert opinion could be used to establish the identity of the driver when there were no direct witnesses to the event. The court had to balance the rules of evidence with the need to ensure justice in circumstances where direct evidence was lacking.

The Supreme Court found that the expert evidence was admissible and could be used to establish the defendant's identity as the driver. The court reasoned that expert opinion was permissible in such circumstances to assist the trier of fact, particularly when direct evidence was not available. The court held that the expert evidence, when considered alongside other evidence, was sufficient to prove beyond reasonable doubt that Hore was the driver of the vehicle at the time of the offence. Consequently, the conviction was upheld.

The final orders of the court confirmed Hore's conviction for driving while disqualified. The court's decision underscored the importance of expert evidence in cases where direct evidence is unavailable, while also emphasising the need for such evidence to meet the requisite standards of admissibility and reliability.

Orders