R v Alan McClelland - [2010] ACTSC 40

R v ALAN MCCLELLAND
[2010] ACTSC 40 (5 MAY 2010)

CRIMINAL LAW AND PROCEDURE – Expert opinion evidence – section 79 of Evidence Act 1995 (Cth)
CRIMINAL LAW AND PROCEDURE – Expert opinion evidence – Lack of cross-examination – No objection raised to the evidence adduced during trial – Application to reject expert opinion evidence
CRIMINAL LAW AND PROCEDURE – Application of principles in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 7805 – Expert opinion to be supported by assumed or proved facts
CRIMINAL LAW AND PROCEDURE – Application, no evidence to justify a conviction- “no case to answer”
CRIMINAL LAW – causal connection between death and injuries suffered in motor vehicle collision

Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 6
Evidence Act 1995 (Cth) ss 79, 136, 60

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
R v JM [2010] ACTSC 35
R v Lewis [2003] NSWCCA 180
Australian Securities and Investment Commission v Rich & Anor (2005) 218 ALR 765
Director of Public Prosecutions New South Wales v Tong (2004) 151 A Crim R 296
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354
Quick v Stoland Pty Ltd (1998) 87 FCR 371
Welsh (1996) 90 A Crim R 364
Australian Securities and Investment Commission v Rich, (2005) 191 FLR 385
Rich v Australian Security and Investment Commission (2005) 54 ACSR 365
R v White (2006) NSWCCA 75
Jackson v Lithgow City Council [2008] Aust Tort Reports 81-981
R v Goodwin (2009) 233 FLR 473

EX TEMPORE JUDGMENT

No. SCC 363 of 2008

Judge: Refshauge J
Supreme Court of the ACT

Date: 5 May 2010

IN THE SUPREME COURT OF THE )
) No. SCC 363 of 2008
AUSTRALIAN CAPITAL TERRITORY )

R

v

ALAN MCCLELLAND

ORDER

Judge:  Refshauge J
Date:  23 April 2010
Place:  Canberra

THE COURT ORDERS THAT:

The accused’s application made on 22 April 2010 that the expert opinion evidence of Dr Helen Parker be ruled inadmissible is dismissed

The accused’s application made on 22 April 2010 that there is no evidence to justify a conviction is dismissed.

On 25 August 2007, a motor vehicle collision occurred at the intersection of Coulter Drive and John Cleland Crescent between a motor car, being driven by Alan McClelland, the accused, and a motorcycle, ridden by the deceased, William Reichelt.
As a result of the accident and the death of Mr Reichelt, the accused was indicted with an offence under s 6 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), commonly referred to as negligent driving.
Mr Reichelt did not die at the scene of the collision, nor in hospital shortly after, but on 23 May 2008, almost nine months after the collision.
In the trial proceedings, a number of eyewitnesses gave evidence and police, especially from the Australian Federal Police Collision Investigation and Reconstruction Team, gave evidence about what they saw at the scene and investigations carried out thereafter.
There was…

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 R v Alan McClelland

Details

AGLC: R v Alan McClelland [2010] ACTSC 40
Case: [2010] ACTSC 40
Decision Date: 5 MAY 2010

CaseChat Overview and Summary

In the case of R v Alan McClelland, the defendant was on trial for a crime related to a motor vehicle collision that resulted in the death of Mr Reichelt. The primary dispute in the case was the admissibility of expert opinion evidence provided by Dr Helen Parker, a forensic physician, and whether there was sufficient evidence to justify a conviction against the defendant. The matter was heard in the relevant Australian court, and the judge was tasked with deciding on the admissibility of Dr Parker's evidence and whether there was enough evidence to support a conviction.

The court had to determine whether Dr Parker's expert opinion evidence was admissible despite the lack of cross-examination. The defence argued that the evidence should be excluded as it did not adhere to the principles set out in Makita (Australia) Pty Ltd v Sprowles, which require expert opinion to be supported by assumed or proved facts. Additionally, the defence argued that there was no evidence to justify a conviction against the defendant, citing the inadequacy of Dr Parker's evidence. The court had to consider these arguments and decide whether to admit the expert opinion evidence and whether there was enough evidence to support a conviction.

The court rejected the defence's application to exclude Dr Parker's evidence, finding that there was no unfairness to the accused, as no objection was raised to the evidence during the trial. The court found that Dr Parker's evidence was based on the provided hospital notes, and there was no objection to the use of these notes as a basis for her opinion. The court also dismissed the "no case to answer" application, stating that Dr Parker's evidence, along with other evidence presented, was sufficient to support a conviction against the defendant.

The court ordered that the expert opinion evidence of Dr Helen Parker be admitted and that the "no case to answer" application be dismissed. This decision allowed the trial to proceed with the expert opinion evidence and ensured that the defendant's case would be assessed based on the full body of evidence presented.

Orders

Orders of the court

1. The accused’s application made on 22 April 2010 that the expert opinion evidence of Dr Helen Parker be ruled inadmissible is dismissed

2. The accused’s application made on 22 April 2010 that there is no evidence to justify a conviction is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

His second application was what is commonly called a “no case application” (see R v JM [2010] ACTSC 35 (at 45)), namely an application for a verdict by direction on the ground that there is insufficient evidence to justify a conviction. This second application was said not to be totally dependent on the first application, though it relied, as I understood it, entirely on the claimed inadequacy of the evidence given by Dr Parker.The evidence of Dr Parker Dr Parker is currently a specialist emergency physician at a community hospital in Victoria and a forensic physician with the Victorian Institute of Forensic Medicine. She has considerable experience in emergency medicine and has experience with people who have suffered brain injuries as a result of motor vehicle collisions. She was asked by Ms K MacKenzie, who appeared for the prosecution, to give an opinion in relation to the circumstances of Mr Reichelt’s hospitalisation and death. As noted, unfortunately, her report, to which reference was made, was not tendered, although she was permitted, expressly without objection, to refer to it. She was provided with what she described as “photocopied notes which were hospital notes pertaining to the deceased in this matter”. Those notes were not better particularised, though no objection was voiced by Mr Gill about that. They were also not tendered. Dr Parker was asked to “outline the history” that she had been given. In the absence of a voiced objection, I am prepared to accept that this was a history that came from the clinical notes to which she had referred, though the words used would have been apt also to describe a letter of instructions. She stated the history as follows: Mr Reichelt was involved in a motorcycle collision in August 2007. At the scene, his Glasgow coma score was the lowest possible, 3 out of 15. He was intubated by ambulance officers and transported to hospital. He had a major head injury which was a right subdural haemorrhage over the parietal lobe, which cannot occur naturally, and which caused his lack of consciousness. He also suffered diffuse axonal injury, a base skull fracture, significant chest injuries and a form of bilateral pneumothoraces and a number of fractures, including an open fracture of the left humerus, fractured pelvis and some spinal fractures. Upon admission to hospital he underwent an urgent decompression craniotomy to relieve the pressure on his brain. He also had tubes inserted into his chest for draining his lungs and subsequently a tracheostomy tube and a feeding gastrostomy, or jejunostomy tube, inserted. He never regained consciousness sufficient to feed himself and he had an impaired gag reflex and cough reflex. She described further that he was later transferred to a brain injury unit, but was assessed as needing full‑time nursing home care due to limited improvement. He remained in a persistent vegetative state and was unable to rehabilitate or improve in any way. He underwent further operations for spasticity and to replace the bone flap in his skull, which had been opened when he underwent the decompression craniotomy.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Gill said that as a matter of discretion, I should still exclude it. He identified no particular bases for the exercise of such discretion. In the absence of objection to the evidence, I see no unfairness to the accused and I reject that application also. Consideration of the second application Mr Gill’s second application for a directed verdict of acquittal was principally based on the success of the first application. I have recently set out in R v JM [2010] ACTSC 35, the principles applying to applications for a directed verdict of acquittal on the ground of insufficiency of evidence. I rely on the principles there stated and do not need to repeat them. In summary, unless there is evidence, however tenuous, inherently weak or vague, which can be accepted by the jury capable of supporting a verdict, such evidence being taken at its highest by the prosecution, including all inferences that can be properly drawn in favour of the prosecution from that evidence and ignoring all inferences that can be drawn in favour of the defence, and that evidence is of every element of the offence, then the application must succeed. Given that Dr Parker’s evidence has not been rejected, I do not think, as I think Mr Gill accepts, the application can succeed. I dismiss it also.