R v Anderson - [2005] QCA 304

SUPREME COURT OF QUEENSLAND

CITATION:

R v Anderson [2005] QCA 304

PARTIES:

R
v
ANDERSON, Annabelle Ruth
(appellant/applicant)

FILE NO/S:

CA No 71 of 2005
DC No 19 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Goondiwindi

DELIVERED ON:

23 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

24 June 2005

JUDGES:

Williams, Jerrard and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE APPEAL DISMISSED - - where the appellant had been consuming alcohol at a party before deciding to drive home - where the motor vehicle being driven by the appellant veered onto the wrong side of the road and collided with a motor vehicle travelling in the other direction - where one passenger travelling in the other motor vehicle was killed while another passenger sustained serious injuries - where breath test taken soon after the accident showed the appellant had a blood alcohol concentration of 71mg/100ml - where blood test taken several hours later showed the appellant had a blood alcohol concentration level of 138mg/100ml - where legal limit of blood alcohol concentration for the purposes of drink driving is 50 mg/100ml - where appellant was convicted after trial by jury of causing death and grievous bodily harm through dangerous operation of a motor vehicle - where the jury also found that the appellant had been adversely affected by alcohol at the time that the offences were committed - where expert evidence was led as to the appellant's likely blood alcohol concentration at the time of the accident by working backwards from the results of the two tests conducted after the accident - where the thrust of this evidence on behalf of the appellant was that her blood alcohol concentration at the time of the accident was less than 50mg/100ml - where further unchallenged expert evidence was given that a person's ability to drive a motor vehicle could be impaired with a blood alcohol concentration of less that 50 mg/100ml - where trial judge directed jury that it was a matter for them what weight they attributed to the expert evidence - whether blood alcohol concentration is decisive as to whether or not a person was adversely affected by alcohol or is only one piece of evidence to be considered by the jury

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE APPEAL DISMISSED - where the behaviour and physical appearance of the appellant had been observed by witnesses both before and soon after the accident - where these witnesses gave evidence that the appellant's behaviour and physical appearance appeared to be…

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 Anderson

Details

AGLC: R v Anderson [2005] QCA 304
Case: [2005] QCA 304
Decision Date: 23 August 2005

CaseChat Overview and Summary

The case of R v Anderson involved an appeal against the conviction of the appellant, who had been found guilty of causing death and grievous bodily harm through dangerous operation of a motor vehicle while being adversely affected by alcohol. The incident occurred when the appellant, having consumed alcohol at a party, drove home and collided with another vehicle, resulting in the death of one passenger and serious injuries to another. The appellant was subsequently convicted by a jury and sentenced to three and a half years imprisonment. The appeal focused on several legal issues, including whether the trial judge's directions to the jury regarding the interpretation of blood alcohol concentration levels and the impact of alcohol on driving ability were misdirections or non-directions. The court also examined whether the jury was properly guided to consider the blood alcohol concentration certificate as conclusive evidence of the appellant's blood alcohol level at the time of the accident, while also allowing for other evidence to determine whether the appellant was adversely affected by alcohol.

The court dismissed the appeal against conviction, holding that the trial judge's directions to the jury were appropriate. The court reasoned that the blood alcohol concentration certificate provided conclusive evidence of the appellant's blood alcohol level at the time of the test but did not preclude the jury from considering other evidence to determine if the appellant was adversely affected by alcohol. This included the appellant's behaviour and physical appearance observed by witnesses, which could support a conclusion that the appellant was under the influence of alcohol at the time of the accident. The court also found that the trial judge correctly distinguished between the certificate's role in establishing the blood alcohol concentration and its role in determining whether the appellant was adversely affected by alcohol. Consequently, the appeal against conviction was dismissed, and the application for leave to appeal against sentence was also refused.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Anderson [2005] QCA 304
PARTIES:	R v ANDERSON, Annabelle Ruth (appellant/applicant)
FILE NO/S:	CA No 71 of 2005 DC No 19 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Goondiwindi
DELIVERED ON:	23 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	24 June 2005
JUDGES:	Williams, Jerrard and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE APPEAL DISMISSED - - where the appellant had been consuming alcohol at a party before deciding to drive home - where the motor vehicle being driven by the appellant veered onto the wrong side of the road and collided with a motor vehicle travelling in the other direction - where one passenger travelling in the other motor vehicle was killed while another passenger sustained serious injuries - where breath test taken soon after the accident showed the appellant had a blood alcohol concentration of 71mg/100ml - where blood test taken several hours later showed the appellant had a blood alcohol concentration level of 138mg/100ml - where legal limit of blood alcohol concentration for the purposes of drink driving is 50 mg/100ml - where appellant was convicted after trial by jury of causing death and grievous bodily harm through dangerous operation of a motor vehicle - where the jury also found that the appellant had been adversely affected by alcohol at the time that the offences were committed - where expert evidence was led as to the appellant's likely blood alcohol concentration at the time of the accident by working backwards from the results of the two tests conducted after the accident - where the thrust of this evidence on behalf of the appellant was that her blood alcohol concentration at the time of the accident was less than 50mg/100ml - where further unchallenged expert evidence was given that a person's ability to drive a motor vehicle could be impaired with a blood alcohol concentration of less that 50 mg/100ml - where trial judge directed jury that it was a matter for them what weight they attributed to the expert evidence - whether blood alcohol concentration is decisive as to whether or not a person was adversely affected by alcohol or is only one piece of evidence to be considered by the jury CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE APPEAL DISMISSED - where the behaviour and physical appearance of the appellant had been observed by witnesses both before and soon after the accident - where these witnesses gave evidence that the appellant's behaviour and physical appearance appeared to be…