SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BJORDAL
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice Vanstone)
10 November 2005
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - MOTOR VEHICLES
Appeal against conviction for death by dangerous driving – at trial evidence given by police officer as to likely speed of appellant’s vehicle – evidence based on formula – formula adjusted by officer to account for partially gravelled road surface – whether evidence based on adjusted formula admissible – whether officer had sufficient expertise to adjust formula – held, such evidence inadmissible as it did not constitute expert evidence – officer did not have sufficient expertise – appeal allowed, retrial ordered.
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, applied.
R v Clarke (2003) 87 SASR 203, distinguished.
Domican v The Queen (1992) 173 CLR 555; R v Bonython (1984) 38 SASR 45; R v Von Einem (1985) 38 SASR 207, discussed.
Australian Securities Commission and Investments Commission v Rich (2005) 218 ALR 764; Clark v Ryan (1960) 103 CLR 486; Cooper v Bech (No 2) (1975) 12 SASR 151; Frye v United States 293 F 1013 (1923); Murphy v The Queen (1989) 167 CLR 94; Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844; R v Howard (2005) 152 A Crim R 7; R v Perry (1990) 49 A Crim R 243; Sydneyside Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354; Trade Practices Commission v Arnotts Ltd (No 5) (1990) 21 FCR 324; Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111; Wolper & Poole (1972) 2 SASR 419, considered.
R v BJORDAL
[2005] SASC 422Court of Criminal Appeal: Debelle, Besanko and Vanstone JJ
DEBELLE J: The appellant was convicted after trial by jury in the District Court of causing death by dangerous driving. He appeals against that conviction.
The main grounds of appeal relate to evidence given by a police officer, Sergeant Mills, as to the likely speed of the appellant’s vehicle at the time of the accident. Those grounds are:
1.That the trial judge erred in failing to grant a voir dire hearing to determine the admissibility of the evidence of Sergeant Mills.
2.That the trial judge erred in admitting the evidence of Sergeant Mills as to the likely speed of the appellant’s vehicle.
3.That the trial judge erred in failing to direct the jury or provide assistance to the jury in their consideration of the evidence given by Sergeant Mills as to the likely speed of the appellant’s vehicle having regard to
(a) the failure by the prosecution to qualify Sergeant Mills as an expert on this topic; and
(b) the evidence of a Mr Hall that there was no scientific basis for the application by Sergeant Mills…
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- AGLC
- R v Bjordal [2005] SASC 422
- Case
- [2005] SASC 422
- Decision Date
CaseChat Overview and Summary
In the matter of R v Bjordal, the appellant appealed against his conviction for death by dangerous driving. The appellant contested the admissibility of expert opinion evidence regarding the speed of his vehicle prior to the collision, arguing that it was wrongly admitted. Additionally, the appellant claimed that the judge's directions to the jury about the evidence were inadequate and that the judge had reversed the onus of proof and failed to adequately present the defence case. The central issue was whether the evidence provided by Sergeant Mills, who based his opinion on an adjusted formula for calculating the vehicle's speed, was admissible and whether Sergeant Mills possessed the necessary expertise to make such adjustments.
The court held that the evidence provided by Sergeant Mills was inadmissible because it did not constitute expert evidence. Sergeant Mills lacked the requisite expertise to adjust the coefficient of friction for a road surface that was partly gravelled. The court found that the subject matter of Sergeant Mills' opinion did not form part of a body of knowledge or experience sufficiently organised to be accepted as a reliable body of knowledge or experience. The adjustments made by Sergeant Mills could not be achieved by any process of deductive reasoning and could only be reliably achieved through extensive empirical testing, which had not been conducted. The court concluded that Sergeant Mills did not have the necessary expertise to express an opinion on the coefficient of friction for yawing on surfaces other than bitumen.
The trial judge's decision to admit the evidence of Sergeant Mills was therefore erroneous. The inadmissibility of this evidence led to a miscarriage of justice, as the speed of the appellant's vehicle was a significant part of the prosecution case. Consequently, the appeal was allowed, and a retrial was ordered. The court's decision underscored the necessity for expert evidence to be grounded in a recognised body of knowledge or experience, and that adjustments to such evidence must be based on empirical data and recognised expertise.
The court held that the evidence provided by Sergeant Mills was inadmissible because it did not constitute expert evidence. Sergeant Mills lacked the requisite expertise to adjust the coefficient of friction for a road surface that was partly gravelled. The court found that the subject matter of Sergeant Mills' opinion did not form part of a body of knowledge or experience sufficiently organised to be accepted as a reliable body of knowledge or experience. The adjustments made by Sergeant Mills could not be achieved by any process of deductive reasoning and could only be reliably achieved through extensive empirical testing, which had not been conducted. The court concluded that Sergeant Mills did not have the necessary expertise to express an opinion on the coefficient of friction for yawing on surfaces other than bitumen.
The trial judge's decision to admit the evidence of Sergeant Mills was therefore erroneous. The inadmissibility of this evidence led to a miscarriage of justice, as the speed of the appellant's vehicle was a significant part of the prosecution case. Consequently, the appeal was allowed, and a retrial was ordered. The court's decision underscored the necessity for expert evidence to be grounded in a recognised body of knowledge or experience, and that adjustments to such evidence must be based on empirical data and recognised expertise.
Orders
Orders of the court
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Background
Background to the litigation
The appellant complains that expert opinion evidence as to the speed of the appellant’s vehicle prior to collision was wrongly admitted and, in the alternative, that the Judge’s directions to the jury about that evidence were inadequate. He further complains that at one point in his directions the Judge reversed the onus of proof and that he failed to adequately put the defence case.Background On Friday, 24 May 2002, at about 11.00 pm, the appellant was driving a Toyota Hilux utility vehicle west along Sheoak Road at Crafers West. The vehicle was in good condition, although one tyre was found to be under-inflated after the collision, and possibly was before it. The appellant was carrying a passenger, Neil Kirkley, who died from injuries sustained as a result of the collision. Evidence in the nature of accident reconstruction established that the vehicle was travelling slightly downhill near the beginning of a right hand curve in the road when the appellant lost control. The car slid 22 metres and rolled 6 metres. The road was bitumen of generally good condition, although with an amount of stone and rubble to the left side. It was dry. A blood sample was taken from the appellant about three hours after the collision. It gave a concentration of .109 grams alcohol per 100 mls of blood. Expert evidence was to the effect that given a steady drinking pattern continuing to shortly before the collision, the concentration then would have been about 0.10 grams percent. AnalysisWas the evidence of speed properly admitted? The appellant argues that the opinion evidence of Sergeant Mills as to the likely speed of the appellant’s vehicle during its passage around the bend before it left the road was inadmissible. The Judge declined to take evidence going to that issue on the voir dire and the appellant raised that decision as a ground of appeal. However, since the material relevant to admissibility was the same as that upon which the defence sought to discredit Sergeant Mills’ evidence before the jury, the question for determination is simply whether the evidence was admissible. Sergeant Mills has no general scientific qualifications. However he is, to an extent, an acknowledged expert in the area of accident reconstruction. That expertise is based on informal tuition, reading, attending conferences and practical experience. He based his opinion on observations of marks left by the tyres of the accused’s vehicle in the 50 metres or so before collision, along with the characteristics of the stretch of roadway involved and the vehicle. He utilised that data in an equation, colloquially referred to as the “critical speed formula”, designed to establish the speed of a vehicle at a point along the length of such marks. That equation required input of the radius of the scuff marks, the coefficient of friction of the tyres of the vehicle against that road surface, as well as a value for gravity. The coefficient of friction was selected, not on the basis of any testing of the stretch of roadway in issue, but rather by use of data generated in published studies. The likely speed he arrived at was between 67 and 91 kilometres per hour.
Evidence
Evidence Before The Court
There were, therefore, two grounds on which the appellant contended that Sergeant Mills should not give evidence. The first was that the formula was in this case inapplicable, if not scientifically unsound. The second was that Sergeant Mills had no expertise to make the adjustment he had made. The appellant submitted that the calculation of speed by Sergeant Mills was so fundamentally flawed that it should not be led.The Prosecution Evidence The prosecution presented Sergeant Mills to the jury as an expert qualified to express an expert opinion as to the calculation of speed based on skid marks or tyre marks. Sergeant Mills is a member of the Crash Reconstruction Unit with the Major Crash Investigation Section of the Police Department. He began working in that unit in 1989. Before being employed in that unit, he had participated in a four week course in accident investigation conducted by the Major Crash Investigation Section. Since then, he has investigated in excess of 100 motor vehicle accidents. Sergeant Mills has undertaken a TAFE course and a further course of instruction on survey techniques. In 1995 he attended an international conference in Queensland on accident investigation, reconstruction, interpretation, and the law. That conference was organised by the Association of Australasian South Pacific Crash Investigators and by the Queensland University of Technology. He attended similar conferences in 1997, 1999, 2000 and 2002. In 1998 he undertook an advanced accident investigation course organised by the Police Department and conducted under the auspices of the Texas University. In 2001 he attended a two week course of advanced instruction conducted in Wellington, New Zealand, by the Royal New Zealand Police College. In April and May 2002 he attended an eight week course conducted by the North‑Western University Centre for Public Safety at Illinois in the United States of America. In May 2002 he attended a seminar organised by the Institute of Traffic Accident Investigation at Ashbourne in England. That seminar dealt with high speed and fixed object crashes. The formula used by Sergeant Mills enables calculation of what is called the “critical curve speed”. The critical curve speed is the maximum speed at which a vehicle will be able to negotiate a bend without slipping. The formula is sometimes called the “critical speed formula”. For convenience, I will call it “the formula”. It comprises a number of components, some of which are variable. One of the variables is the radius of the bend around which the vehicle is travelling. Another is the co‑efficient of friction between the tyres of the vehicle and the surface on which it is travelling. The radius of the bend is capable of being determined objectively by measurement and calculation. That was common ground. It was also common ground that the co‑efficient of friction is an essential component of the equation. It was the appellant’s case that, unlike other variables, the co‑efficient of friction was not capable of objective measurement or calculation but could only be determined by empirical tests and observation. In the formula used by Sergeant Mills, the co‑efficient of friction was that for cars travelling in a straight‑line skid on a clean bitumen surface. It has been established empirically by extensive testing.
Decision
Reasons for decision
The second question is whether Sergeant Mills had the necessary expertise to make the adjustments to the co‑efficient of friction. The effect of the evidence of Mr Hall was that no person is competent to make adjustments to the co‑efficient of friction as determined for bitumen surfaces to allow for yawing on other surfaces. It is not possible to calculate the co‑efficient of friction in such a case by use of the laws of physics or by any process of deductive reasoning. It can only be reliably achieved by extensive empirical testing. To adapt the words of King CJ in R v Bonython, the subject matter of the opinion which Sergeant Mills purported to express, namely, his adjustment to the co‑efficient of friction, was an opinion which did not form part of a body of knowledge or experience which had been sufficiently organised to be accepted as a reliable body of knowledge or experience. Although empirical testing had yielded a reliable body of knowledge for skidding and yawing on clean bitumen surfaces, sufficient testing had not been conducted to yield a reliable body of knowledge to determine the co‑efficient of friction for vehicles yawing on surfaces other than bitumen. For that reason alone, Sergeant Mills lacked the necessary expertise.Conclusion There are, therefore, two lines of reasoning which lead to the conclusion that the evidence of Sergeant Mills of his calculation of the speed of the appellant’s vehicle was inadmissible. One is that there is no body of organised knowledge or experience which would cause his opinion to be of assistance to the court. The other is closely related, namely, that the calculation was grounded on an unreliable premise so that it could not be of assistance to the court. This was an instance where it was necessary for the trial judge to determine whether the prosecution should be permitted to lead evidence of the calculation of the speed of the appellant’s vehicle made by Sergeant Mills grounded as it was on the opinion of Sergeant Mills as to the co‑efficient of friction between the tyres of the appellant’s vehicle and the loose gravel on the surface of the bitumen on Sheoak Road. It was necessary for the judge to determine whether Sergeant Mills’ opinion was based on a body of knowledge or experience which was sufficiently organised and recognised to be accepted as a reliable body of knowledge or experience which would assist the jury. He also had to determine whether Sergeant Mills had the required expertise to express the opinion as to the co‑efficient of friction. The judge had been informed that the challenge to the calculation and to the expertise of Sergeant Mills to make the calculation was supported by evidence. For the reasons expressed in R v Bonython at 46 and 47 and in Makita (Australia) Pty Ltd v Sprowles at [85], this was a proper matter for enquiry on the voir dire. For these reasons, the trial judge erred in failing to accede to the application of the appellant for a voir dire to determine the admissibility of the evidence of Sergeant Mills as to the likely speed of the appellant’s vehicle. For the same reasons, the trial judge erred in admitting the evidence of Sergeant Mills as to the likely speed of the appellant’s vehicle. The issue of the speed of the appellant’s vehicle was an important part of the prosecution case. The prosecution should not have been permitted to lead evidence of the calculation of that speed by Sergeant Mills. If that evidence had not been led, the evidence of Mr Hall would not have been led. The fact that the prosecution was permitted to lead inadmissible evidence as to speed has resulted in a miscarriage of justice. I would, therefore, allow the appeal.
Ratio Decidendi
Legal Principle Established
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