R v Barnes

[1995] QCA 11

IN THE COURT OF APPEAL [1995] QCA 011

SUPREME COURT OF QUEENSLAND	C.A. No. 421 of 1994
Brisbane
Before	Fitzgerald P. Davies J.A. McPherson J.A.

[R. v. Barnes]

T H E Q U E E N

v.

KEVIN MELMAN BARNES (Appellant)

Fitzgerald P.
Davies J.A.

McPherson J.A.

Judgment delivered 15/02/1995

Joint reasons for judgment of Davies and McPherson JJ.A.

Separate concurring reasons by the President.

APPEAL DISMISSED.

CATCHWORDS:	CRIMINAL LAW - MURDER - whether intoxication of accused; whether failure to lead Doctor's report as to inability of accused to rationally form an intent; whether miscarriage of justice; whether unreliable evidence as to extent of accused's intoxication affects admissibility of evidence.
Counsel:	Mr. R. Hanson Q.C. for the appellant Mr. R. Martin for the respondent
Solicitors:	Boe & Hogan for the appellant Director of Prosecutions for the respondent

Hearing Date: 24 November 1994

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 15/02/1995

The circumstances giving rise to this appeal are generally set

out in the reasons for judgment of Davies and McPherson JJ.A.

Under s.28 of the Criminal Code, the appellant's intoxication,

whether complete or partial, and whether intentional or unintentional, was required to be considered by the jury in determining whether he intended to kill or cause grievous bodily

harm to his de facto wife when he stabbed her. The prosecution

was required to prove, beyond reasonable doubt, that the appellant had that intention despite his state of intoxication; "... the question which s. 28 and the law as to onus of proof combined to present was whether the evidence of intoxication caused the jury to have a reasonable doubt as to whether the appellant had in fact the intention to kill": Thomas v. R. (1960) 102 C.L.R. 584, 597. The jury could not be satisfied

beyond reasonable doubt that the appellant intended to kill or

cause grievous bodily harm unless satisfied, to that degree, that his intoxication did not prevent him from forming such an

intention. The concept of intention causes some difficulties

(see, e.g., R. v. Maloney (1985) A.C. 905, R. v. Hancock (1986)

A.C. 455, and R. v. Nedrick (1986) 1 W.L.R. 1025), but it is

unnecessary, for present purposes, to discuss, in detail, the nature and extent of the state of mind of the appellant which the prosecution had to establish. I will proceed on the basis

that the prosecution had to prove that, when he stabbed his wife, the appellant understood that what he was doing would kill her or cause her grievous bodily harm: cf. Williams v. R. (1978)

Tas.S.R. 98, 102, approved Hawkins v. R. (1994) 179 C.L.R. 500,

509.

There was ample evidence for the jury to conclude that the appellant knew what he was doing and what the consequence for his wife would be; his threat, fetching the knife, throwing the

knife after use into the kitchen sink, leaving the premises and

returning to ask a person who had witnessed the stabbing not to "dob" him in, disposing of his blood-stained shirt, and so on. In the absence of other evidence, such evidence suggests that

the appellant was thinking rationally, and his conviction

plainly would have been neither unsafe nor unsatisfactory.

However, as is discussed by Davies and McPherson JJ.A., there

was evidence of the appellant's alcohol consumption and intoxication; it was argued for the appellant in this Court that

the guilty verdict was unsafe because of evidence given by Dr

Purssey, a medical expert on the effect of alcohol on human

behaviour; or, alternatively, that the appellant's trial had

miscarried because his counsel at trial omitted to lead available evidence from Dr Purssey concerning the appellant's capacity to form the intention which the prosecution had to establish. In support of the latter proposition, reliance was placed on R. v. Birks (1990) 19 N.S.W.L.R. 677; cf. R. v.

Cameron (1989) 2 W.A.R. 1.
Both the trial judge and counsel at the trial regarded the
evidence which was not adduced as inadmissible. The prosecution
sought to support that view in this Court, citing Cameron and
the earlier Victorian Full Court decisions of R. v. Darrington

and McGauley (1980) V.R. 353 and Carn (1982) 5 A.Crim.R. 466. Both Victorian cases, and the later decisions of the Victorian

Full Court in R. v. Haidley and Alford (1984) V.R. 229 and the

South Australian Full Court in R. v. Fowler (1985) 39 S.A.S.R.

441, were among the many authorities referred to in Cameron.

There are a number of different views expressed in those

authorities, which do not seem to me to establish conclusive principles with respect to the admissibility of expert evidence

concerning the effects of alcohol on the operation of the human mind. Insofar as some passages, for example the dicta in Darrington and McGauley at pp. 381-382, suggest that expert

opinion as to the effects of alcohol, or a particular form of alcohol such as beer, on the mental processes of a normal adult is always inadmissible because it is a common drink, I disagree.

Such statements do not appear to me statements of legal
principle, but conclusions based on the application of

established principles to assumed facts based on a particular view of society. Whether or not it is generally correct to assume that the average person eligible for jury service has sufficiently experienced or observed over-indulgence in alcohol to permit him or her to form an opinion on its effects, the vast

quantities of alcohol said to have been consumed by the

appellant, which were sufficient to produce a potentially lethal blood alcohol concentration, are well outside most people's experience: cf. Murphy v. R. (1989) 167 C.L.R. 94 at pp. 111, 125-127.

Dr Purssey had not met the appellant prior to the trial, but had

provided a report based on a number of statements, including

statements from the appellant and other witnesses not called at the trial, and other information, including advice from the

appellant's then counsel. Obviously, Dr Purssey could not give evidence of what he had learned from those sources or the opinions which he had formed on that basis.

On the other hand, the prosecution implicitly accepted Dr

Purssey's qualifications, and made no objection to his giving evidence "concerning the effect of alcohol on people" and "on human behaviour".

Senior counsel who appeared for the appellant at trial asked Dr

Purssey to observe the appellant in the dock, make specified

assumptions concerning food and alcohol consumption and sleep over a period of a little over two days, and "tell the jury the blood alcohol level approximately of a person of the size and

build of the accused?" Dr Purssey's reply was as follows:
"To estimate the blood alcohol of anyone at any given time

is not an exact art. It has to meet several assumptions. Now, having seen the accused for the first time today I consider he is what I would call an average adult Australian male and investigations have shown that the average adult Australian male goes up about .01 per cent per standard drink. It varies depending on the lean weight of the individual, but this has been shown by investigation to be a good average for an Australian - the average Australian male. Then there is other factors - there are other factors, I should say, such as the individual rate of absorption per person. These do vary. There is the effect then of the excretion of alcohol because alcohol is absorbed from the stomach and upper small bowel, absorbed into the body and the blood alcohol will continue to go up until - then it is destroyed. It is destroyed in the liver and excreted in the urine and breath, mostly it is destroyed in the liver, and when the rate of absorption balances the weight that is excreted it stays about the same. The blood alcohol is - goes down in the average person at about .02 per cent per hour. Now, making all these assumptions and taking these figures as were given to me at the time that the alcohol was consumed and that - where there were four people, they drank equal amounts, I estimate that the blood alcohol of the accused at about 5 p.m. on that Friday would be in the vicinity of - and that is all I will say, in the vicinity of - 0.45 per cent blood alcohol."

In answer to a further question, Dr Purssey added that "it has

generally been accepted that a level of .5 per cent blood

alcohol is lethal. However, recent work has shown that people can survive and certainly even function with levels up to this and above."

Then followed the following series of questions and answers:
"Could I give you a variation on the amount of alcohol? I

want to add little bit to it. These were figures that were given to you yesterday, doctor, do you recall that? -- Yes.

The additions that I want you to take into account is that on Wednesday during the drinking period, you were to add an extra half litre of wine and on Friday, between 7.30 in the morning and 3 p.m., you were to add one four litre cask of wine. Now, if you make those additions? -- Yes, this will give you an example of how I do this in that, well, actually the extra half litre of wine on Wednesday will make no difference at all. The blood alcohol of the accused, on the figures I have been given, even with that, would be zero about by 3 a.m. However, on the Friday, if we add another one four litre cask, a four litre cask contains about 40 standard drinks. Four people are drinking it. The accused would have drunk another ten standard drinks.

Those ten standard drinks would have pushed his blood alcohol up by - in the vicinity of 5 p.m. to about .55 per cent, which used to be considered [lethal]."

Pausing there, it was not contended in this Court that the

appellant's counsel at trial in that question did not accurately summarise the general effect of the evidence of one of the witnesses, Ibuai, a drinking companion of the appellant at the material time. Ibuai had been at work on the day the stabbing occurred but, when he returned from work, joined in the drinking. He did not consider that the appellant was drunk at

the time of the stabbing, although another witness, Walit, who

had been drinking with the appellant all that day, described the

appellant as "paralytic".

Dr Purssey's evidence in chief then continued:

"I want to ask you some questions about cerebral functions,

doctor. Is there a body of scientific knowledge about
the way alcohol affects cerebral functions? -- Yes.

What are cerebral functions? - The cerebral functions are, basically, the functions of the brain.

Is it possible to categorise them in any way? -- Yes, they are normally categorised into the lower cerebral function, the basic ones which control your heart rate, your breathing and your digestion, the sort of things you don't have to worry about at all. From then on you are moving up into the higher levels which are doing what I am doing now, I am moving my hand not thinking particularly what I am doing with it, the ordinary everyday things that you do that are repetitive type actions and the things that you do in normal living and then the higher functions are those normally concerned with conceptualisation, with planning, thinking, calculating, these are normally what we consider to be the higher functions or cerebral function - thought.

Does alcohol affect cerebral functions? -- It does, definitely. In fact, the major effect of alcohol on the body that concerns, certainly my profession and most other professions, is the effect on the cerebral functions.

And which of the cerebral functions - which of the categories of cerebral functions does it affect first, can you say? -- It usually affects the higher levels of cerebral functions first and moves down to - in fact, by the time you get it down to affecting the lower cerebral functions, that is when it is lethal, because it will stop the heart and will stop breathing in that alcohol is purely a depressant drug. So it starts at the top and moves down as far as activity is concerned.

And if you take the higher cerebral functions, what's the effect of increasing the amount of ingestion of alcohol upon them? -- Well, early on you get this apparent stimulant effect of alcohol. I think everybody - each of you would have heard the saying 'Dutch courage' and there's another one called 'Jack Brabham Syndrome' where drivers, when they have had a few drinks, think they are the world's best drivers. These come in actually when the blood alcohol levels are relatively low, about .08 to .15, so they are being affected at that stage. As it goes up, of course, you are going to get gross disturbances of cerebral functions of thinking and feeling and acting.

You are going to find people are confused. I'm not - by the way, I am not talking about the normal signs of inebriation, the staggering, the slurred speech and very loud. I am talking about the area - even they are caused by some of the cerebral functions - I am talking about the actual rational thinking -----"

The prosecution objected at that point but, after argument, the

objection was overruled and the evidence continued:
"You were saying that it affects certain of the higher

cerebral functions. What were they? -- The effect is the person tends to be confused and rational thought is very difficult, indeed, if it is present at all.

Tell me, or tell the jury, rather, if you take a person with a high blood alcohol level in the range of .4 or .45, something of that nature, what can you say about the effect of that much alcohol on the higher cerebral functions? -- They are going to be grossly disturbed.

I have personally not seen a level of above .38, and .38 is very, very high indeed, but there has been a recent report from a detoxification report of the Prince Albert Hospital in Sydney where they actually had someone with a blood alcohol of .45 ------

No. Could I turn to another subject, I want to put some descriptions of things that the accused did after he stabbed the deceased? -- Yes.

The jury has heard evidence of the things the accused did.
I want to put them to you one by one and ask you,
firstly, whether a person of his build, having a blood
alcohol content of around .45, whether the doing of
those acts is consistent or inconsistent with having
such a high blood alcohol content. Do you follow what

I am driving at? -- Yes, I do.

The first matter is this: the jury has heard that after stabbing his wife, the accused walked out of the back door of the flat where the stabbing had happened, and as he past the kitchen sink, he chucked the knife he had used into the sink - he threw the knife that he had used into the sink which was full of water at the time? -- Yes.

Can you tell the jury whether that action is consistent or inconsistent with his having a blood alcohol content of .45? -- I feel it is quite consistent. This is something you don't have to think about. That's were knives normally go. If you go in there, throw it in the sink. He's likely to have done that with knives many times before - not this sort of thing, of course, but that is where you throw knives or put knives.

The second question is in relation to that act, into what category of cerebral function do you put the thought processes involved in the doing of that act? -- The middle range, a repetitive thing one does with normal living.

The second matter is that the jury has heard that having left the flat in the manner I have described, he came back a few minutes later and retrieved a wine cask that they had been drinking from and a shirt that he put on. Now, is that consistent or inconsistent with having the high blood alcohol content that you mentioned? -- High blood alcohol won't stop him wanting to drink more. As I say, that is quite consistent.

What about retrieving a shirt? -- Routine type of thing.

The jury has heard that shortly after the stabbing he was next door underneath a house where he saw a man and asked him for a light for his cigarette. What do you say about that action and its consistency or inconsistency with a blood alcohol content of .45 or thereabouts? -- Yes, it is consistent, as was found by the unit in Sydney.

The jury has heard that he lit a cigarette and it may well be that he rolled his own cigarette to smoke. What do you say of his having rolled and lit a cigarette? Is that consistent or inconsistent? -- He would be quite clumsy in doing it. I can't see why he couldn't roll his cigarette.

The jury has heard the shirt which I have mentioned which was stained with blood was found in a disused fridge under the house nextdoor and one might infer that the accused got rid of it there. What do you say about that and its consistency or inconsistency with the blood alcohol? -- He certainly would be able to do it, but the point is with irrational thought, which I am certain he would have, and perhaps little memory, as everybody knows, being a marked depressant of the cerebral nervous system it also affects memory to quite a marked degree, and I should imagine that it is possible, I can't say naturally whether it is true or not, that he could say, 'What the hell is this with blood on it?' He mightn't even know what this is ---- -

[PROSECUTOR]: I object.

[SENIOR COUNSEL FOR APPELLANT]: Stop for a moment, doctor, please. Could I move on to the next issue: after the incident with the lighter and the shirt, we have heard evidence that the accused walked some distance away, four or five streets? -- Yes.

That he would have to cross, where he was later found asleep in some abandoned premises. What do you say about that being consistent or inconsistent with the blood alcohol level? -- It is quite consistent. He would walk, certainly.

In relation to each of those matters, into what category of cerebral function do you put the thought processes that were involved in doing those acts? -- Well, all of them, apart from - you don't want to mention any more of the blood - all the rest of them or routine sorts of things people do."

Cross-examination of Dr Purssey established that the blood

alcohol concentration level which he postulated was based on "a

large number of assumptions":

(i)"the estimates as to the amount of alcohol that [he had] been

given";

(ii)that the appellant "... is representative of the theoretical norm ..."; "... that he fits in with that group, but there are variations within the group and within individuals ..."; "... it is not possible to reduce the functions of the human body to the simplicity of a mathematical equation

...";

(iii)that the appellant "excretes alcohol or breaks down alcohol

in his body at the rate of .02 per cent per hour", but

there can be "quite significant variations between

individuals"; "it is possible for a person to break

down alcohol at a rate of .025";

(iv)that if a break down rate of .025 per cent per hour was applied to the other assumptions, the estimated blood alcohol concentration at the time of the stabbing would reduce to about .33.

Dr Purssey also agreed under cross-examination that there was a

"sliding scale", not a "hard and fast sharp division", between the middle and higher cerebral functions, and that "there can be

variations between individuals".

The argument that Dr Purssey's evidence made the guilty verdict

unsafe or unsatisfactory can be briefly disposed of. At its
highest for the appellant, it established three propositions:

(a)based on a number of assumptions, the appellant's blood

alcohol concentration would have been extremely high when
he killed his wife;

(b)rational thought "is very difficult ... if it is present at

all" at such a level;

(c)particular aspects of the appellant's behaviour after the

killing did not indicate that he was thinking rationally.

Even if the jury accepted Dr Purssey's evidence, his opinion on the appellant's blood alcohol concentration and its effect on

the appellant's mind could not assist the appellant unless the

jury considered that the assumptions Dr Purssey was required to

make were at least substantially justified; obviously the jury was not required to accept the evidence of the appellant's drinking companions as truthful, accurate and reliable.

Further, Dr Purssey's evidence significantly omitted reference

to aspects of the appellant's behaviour, before and after the

stabbing, which the jury was entitled to conclude demonstrated that he was thinking rationally; e.g., his movement to the

kitchen to obtain the knife following his threat to his wife and

his request to a witness not to "dob him in".

The appellant's second ground is based on a statement in Dr

Purssey's report that, with a blood alcohol concentration "in

the region of 0.5%", "though it would have been possible for

[the appellant] to stand, walk and talk, I consider his

cerebral functioning would have been markedly disturbed to the extent that the rational formation of any intent would have been unlikely".

I can identify no reason why an appropriately qualified witness

could not give evidence that it would be unlikely a normal, adult male person could rationally form "any intent" with a blood alcohol concentration of 0.5%, or explain the reasons for that opinion by reference to the effect of alcohol on the brain

and its functions.

However, such an opinion, or an opinion, if admissible, that, on

the assumptions he had made, it was "unlikely" that the

appellant could have rationally formed "any intent" would not have assisted the appellant. Such opinions, like those which Dr

Purssey gave in evidence - which were not substantially

different - would have been subject to the same vices; i.e., the jury's apparent unwillingness to accept the reliability of the

evidence upon which Dr Purssey's assumptions depended, and the absence of any reference in his evidence to factors which are plainly material to the appellant's capacity to think rationally

at the critical time.

Insofar as it might be suggested that his counsel at trial

should have referred those matters to Dr Purssey for comment, there plainly could have been tactical disadvantages in doing

so, and it cannot be said that the trial miscarried.

I agree that the appeal should be dismissed.

JOINT REASONS FOR JUDGMENT - DAVIES AND McPHERSON JJ.A.

Judgment delivered the 15th day of February 1995

The appellant was convicted on 29 September last of the murder of his defacto wife on 16 April 1993. At about 5.00 p.m. on that day the appellant stabbed the deceased in the back with a steak knife and she died shortly afterwards. The incident occurred in a flat occupied by Milton Ibuai and Bernard Walit in which the appellant and the deceased were temporarily living. Shortly prior to the stabbing the appellant had threatened to

flog the deceased but was prevented from hitting her with a

chair leg by Ibuai. He then went into the kitchen, took the knife from a drawer, returned to the room where the deceased and

Ibuai were sitting and stabbed her. After stabbing her he

withdrew the knife and walked to the kitchen where he threw it in the sink which then had water in it. He then left the flat.

He returned a few moments later and said to Ibuai: "Don't dob
me in". He then picked up a wine cask and a shirt which he had

formerly been wearing and again left the premises. After

leaving the premises the appellant went next door and asked the

occupant for a cigarette which he was given. By this time he was wearing the shirt which he had picked up. However the shirt had blood stains on it and the appellant disposed of it in a

disused refrigerator under the neighbour's house. He then

walked four or five blocks where he fell asleep under a house.

All of the above facts are undisputed. It is also undisputed, and indeed relied on by the appellant, that he had, by the time of the stabbing, consumed a considerable quantity of

alcohol over the preceding three days.

The appellant appeals against his conviction on two

grounds, one of which was added by leave at the hearing of his

appeal. They are:
1.That the verdict was unsafe and unsatisfactory having regard

to the uncontested evidence as to the level of intoxication

of the appellant; and

2.That there was a miscarriage of justice in that the
appellant's counsel failed to lead evidence from Dr.

Purssey of his opinion that it was unlikely that the

appellant would have rationally formed any intent.
A third ground of appeal, that the learned trial judge

erred in law in excluding the expert evidence of Dr. Purssey as to the capacity of the appellant to form the necessary intent,

was abandoned at the hearing.

On the first ground the appellant submitted that, having regard to the evidence of the quantity and type of liquor consumed by the appellant and the evidence of Dr. Purssey, a specialist surgeon and expert in the effect of alcohol on human behaviour, a reasonable jury must have had a reasonable doubt about whether the appellant formed the necessary intent. It was submitted that that evidence was inconsistent with the formation of that intent and that the appellant's observed conduct at relevant times was not inconsistent with inability to form that intent. There are a number of comments which must be made about

those submissions.

The first is that the evidence of the quantity of alcohol consumed by the appellant at relevant times was unreliable. The stabbing incident occurred on a Friday evening. It was put to Dr. Purssey that, relevantly, the appellant commenced drinking

about 10 o'clock on Thursday morning together with three others.
The evidence of this and of how much was consumed by the
appellant that day is by no means clear. Of those said to have
been present between early morning and 4.00 p.m. that day,

Walit, the deceased, the appellant and Jonathan Toby, only Walit

gave evidence. He said that he commenced drinking with the

appellant, the deceased and Ibuai at about 4.00 p.m. This was contradicted by Ibuai who said that Walit and the appellant were drinking before he left for work that morning and that, when he

returned about 4.00 p.m. Jonathan Toby was present also. Toby did not give evidence and nor did the appellant. The estimate

of alcohol consumed by the appellant during this period, upon which Dr. Purssey relied, was based on Ibuai's recollection of the number of empty bottles and wine casks which he observed

when he returned from work divided by four.

From the time Ibuai joined the others at about 4.00 p.m.
that day to the end of that night he consumed a large quantity

of alcohol. From his estimate of the amount he drank he would have been very drunk by the end of the night. Consequently his

recollection is likely to have been very unreliable. Again on Friday Mr. Ibuai went off to work, returning about 4.00 p.m. As

he was the only person who attempted to give detailed evidence

on this question, again it was a matter of speculation as to how much alcohol the appellant had consumed during his absence. Nor was he able to be specific as to how much the appellant drank between Mr. Ibuai's return from work and the stabbing incident.

It is difficult to see how, from the evidence of Messrs. Ibuai
and Walit, the appellant's counsel was able to put to Dr.
Purssey a fairly precise estimate of the amount of alcohol

consumed by the appellant from Thursday morning until Friday evening. The jury might well have thought that the evidence of the amount said to have been consumed by the appellant was too

uncertain a basis upon which to calculate the appellant's blood
alcohol content.

Secondly, as Dr. Purssey said, the estimation of blood alcohol level from evidence of consumption is inexact because, amongst other things, individual absorption rates vary. The assumptions upon which the estimation is made, though referred to by Dr. Purssey, were not, apart from the variation in

absorption rates, stated by him. One appears to be the amount of food consumed. It was put to Dr. Purssey, and presumably relied on him for his calculation of blood alcohol content, that neither on Thursday nor Friday did the appellant eat during the day. The only evidence on this question came from Ibuai who

said that on Thursday neither he nor anyone in his presence ate breakfast or dinner or ate at the nightclub that night. There

was no evidence of whether the appellant ate any food during the day on Thursday and no evidence at all on whether or not he ate

on Friday.

Thirdly the appellant relied on Dr. Purssey's evidence that many, if not most of the appellant's actions immediately prior to and subsequent to the stabbing were consistent with his

functioning merely at the middle of three levels of cerebral

functioning and that planning, thinking and calculating, which

it might be thought were necessary for formation of an intention

to kill, were at the highest of those three levels. But at

least two incidents, which the jury might reasonably have thought indicated functioning at the highest of those three

levels, were not put to Dr. Purssey. These were his threat, shortly before the stabbing, to flog the deceased and his attempt to do so which Mr. Ibuai prevented; and his statement when he returned after leaving the flat: "Don't dob me in". The jury may also have thought that the appellant's attempt to conceal the blood-stained shirt indicated functioning at that level.

Fourthly there was inconsistency between Ibuai and Walit as

to the appellant's observable state on Friday evening. Ibuai,

who must have been fairly sober, thought that the appellant was not drunk. Walit who, on the appellant's argument, must have been drunk, thought that the appellant was drunk.

The jury were entitled to reject the estimate of the
appellant's blood alcohol content and the conclusions which
followed from that because of the unreliability of the evidence

on which it was based and because those conclusions were inconsistent with the observed conduct of the appellant; and

to rely for evidence of the appellant's capacity to form the

relevant intent on that conduct.

The second ground of appeal concerns an opinion expressed

by Dr. Purssey in a report, but not given in evidence, that at

0.5% blood alcohol content the appellant would not have been

likely to rationally form any intent. It is submitted that the

failure of defence counsel to lead this evidence was a

miscarriage of justice.

That conclusion was based on two premises:

1.    that the appellant's blood alcohol content at the relevant

time was 0.5%; and

2.    that a chronic alcoholic at that level would function in the middle of the three levels of cerebral functioning but

not at the highest; and that the formation of the relevant
intention involved functioning at the highest level.

That the appellant was a chronic alcoholic was not proved. It is unclear what effect that assumption had on Dr. Purssey's opinion. But his statement in the report that chronic alcoholics can walk and talk with a blood alcohol content up to 0.45% indicates that the doctor may have thought that chronic

alcoholism may have explained the appellant's apparent ability to function at the middle level despite a very high blood

alcohol content. Perhaps, because alcohol affects the higher level of functioning first, a chronic alcoholic would have no

better capacity to function at the higher level but a better

capacity to function at the middle level. Whatever relevance the assumption that the appellant was a chronic alcoholic may

have had, chronic alcoholism was not established by the

evidence. As the report and the opinion appear to have been dependant on this assumption, they would have been inadmissible.

In order to arrive at the conclusion, which Dr. Purssey reached in his report, that the appellant's blood alcohol content at about 5.00 p.m. on the evening in question was in the region of 0.5% he relied on statements from the appellant, Mr. Ibuai, Mr. Walit and Mr. Toby. The assumptions upon which the

opinion in the report were based, which no doubt came from the statements of the appellant and Toby as well as, to some extent those of Ibuai and Walit, were not proved at the trial. We have

already said that neither the appellant nor Toby gave evidence;
and it does not appear whether Ibuai's and Walit's statements
accorded with their evidence. For this reason also the report
would not have been admissible.

The opinion in Dr. Purssey's report, based as it was on assumptions not proven, would not have been admissible even assuming that the incidents not put to him in evidence had been considered by him before he expressed that opinion. That is the most likely explanation for the failure of the appellant's counsel to seek to adduce this opinion. There was therefore no error which could have constituted a miscarriage of justice.

Both grounds of appeal must therefore be rejected and the appeal dismissed.