R v Clarke

Case [2003] SASC 380

R v CLARKE
[2003] SASC 380

Court of Criminal Appeal:       Doyle CJ, Prior and Vanstone JJ

DOYLE CJ:     I have had the advantage or reading the reasons of Vanstone J.  I adopt her outline of the events giving rise to the charge against Mr Clarke, of the evidence about the analysis by Mr Sims of the blood sample, and her statement of the issues argued on appeal.

  1. I agree generally with her reasons, except in relation to one ground of appeal which leads me to conclude that the appeal should be allowed.  However, there is one aspect of the appeal on which I also wish to express my own views briefly.

    Admission of Mr Sims’ evidence

  2. Mr Sims’ evidence related to the identification and measurement of foreign substances in human blood.  The evidence described the process that he followed to provide an estimate of the quantity of methylamphetamine in blood samples taken from Mr Clarke.

  3. The topic is one on which expert evidence is admissible, and on which Mr Sims was well qualified to give expert evidence.

  4. Because the blood sample was “denatured” Mr Sims reconstructed the sample by adding water, and then analysed the sample in the usual way. Usually denatured samples are not analysed by staff of the Forensic Science Centre. This, I gather, is because the analysis of denatured blood does not permit the concentration of alcohol or drug present to be reported to the level of accuracy required for the giving of a certificate under s 47I of the Road Traffic Act 1961 (SA).

  5. In the present case, contrary to the usual practice, Mr Sims carried out an analysis of the denatured samples at the request of prosecuting authorities.

  6. Mr Sims said that he made what he called a “reasonable assumption” that the samples had denatured because an insufficient quantity of blood had been placed into the relevant containers.  I gather from his evidence that that can easily lead to the denaturing of a sample.  This occurs because, he said, insufficient liquid is added to dissolve the solids that are placed in the container at the time of manufacture.  Those solids are put in there to preserve the blood sample.

  7. Having read the whole of his evidence, it appears to me that Mr Sims was expressing an opinion as to the likely cause of the denaturing.  This opinion was based on his experience working in the field.  His reasonable assumption was not a pure assumption.

  8. Mr Sims then followed the usual method for analysing a sample of blood to determine the presence of a drug in the blood, and to measure the quantity.  It is implicit in everything he said that he regarded the method of analysis as an appropriate method to use in the circumstances.  This then yielded the result that he reported.

  9. Reading his evidence as a whole there is no reason to doubt the suitability or the reliability of the process that he followed.  He reported the result as an approximation or estimate,…

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R v Clarke [2003] SASC 380
Case
[2003] SASC 380
Decision Date

CaseChat Overview and Summary

In the case of Wayne Robert Clarke, the appellant appealed against his conviction by verdict of a jury in the District Court for causing death by dangerous driving, as well as the sentence imposed. The collision occurred on 5 November 2001, near Yumali, where the appellant was driving a Freightliner prime mover towing a loaded trailer and collided with a Kenworth prime mover, resulting in the death of the deceased. The appellant claimed to have no memory of the hour prior to the collision. The appeal raised several issues, including the admission of evidence relating to the analysis of blood samples, the directions given to the jury, and the safety of the verdict. The central issue was whether the evidence of the forensic scientist, Mr Donald Sims, regarding the concentration of methylamphetamine in the blood samples was admissible.

The court considered the admissibility of expert evidence and the qualifications of the expert, Mr Sims. Mr Sims was well qualified to give expert evidence on the identification and measurement of foreign substances in human blood. The court noted that Mr Sims made a reasonable assumption about the cause of the blood sample denaturing, which was an important factor in his analysis. The court found that Mr Sims' process for analysing the denatured blood samples was reliable and suitable, despite the unusual circumstances. The court also highlighted that neither counsel explored with Mr Sims the implications for the accuracy of his estimate if his opinion about the cause of the denaturing was incorrect.

The court concluded that the appeal against sentence should be dismissed. However, the court allowed the appeal against conviction, set aside the conviction, and ordered a retrial. This decision was based on the grounds that the admission of the analysis of the appellant's blood was problematic, and the directions given to the jury on this topic were in error. The court found that the verdict was unsafe and unsatisfactory due to these issues. Therefore, the conviction was set aside, and a retrial was ordered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I agree generally with her reasons, except in relation to one ground of appeal which leads me to conclude that the appeal should be allowed. However, there is one aspect of the appeal on which I also wish to express my own views briefly.Admission of Mr Sims’ evidence Mr Sims’ evidence related to the identification and measurement of foreign substances in human blood. The evidence described the process that he followed to provide an estimate of the quantity of methylamphetamine in blood samples taken from Mr Clarke. The topic is one on which expert evidence is admissible, and on which Mr Sims was well qualified to give expert evidence. Because the blood sample was “denatured” Mr Sims reconstructed the sample by adding water, and then analysed the sample in the usual way. Usually denatured samples are not analysed by staff of the Forensic Science Centre. This, I gather, is because the analysis of denatured blood does not permit the concentration of alcohol or drug present to be reported to the level of accuracy required for the giving of a certificate under s 47I of the Road Traffic Act 1961 (SA). In the present case, contrary to the usual practice, Mr Sims carried out an analysis of the denatured samples at the request of prosecuting authorities. Mr Sims said that he made what he called a “reasonable assumption” that the samples had denatured because an insufficient quantity of blood had been placed into the relevant containers. I gather from his evidence that that can easily lead to the denaturing of a sample. This occurs because, he said, insufficient liquid is added to dissolve the solids that are placed in the container at the time of manufacture. Those solids are put in there to preserve the blood sample. Having read the whole of his evidence, it appears to me that Mr Sims was expressing an opinion as to the likely cause of the denaturing. This opinion was based on his experience working in the field. His reasonable assumption was not a pure assumption. Mr Sims then followed the usual method for analysing a sample of blood to determine the presence of a drug in the blood, and to measure the quantity. It is implicit in everything he said that he regarded the method of analysis as an appropriate method to use in the circumstances. This then yielded the result that he reported. Reading his evidence as a whole there is no reason to doubt the suitability or the reliability of the process that he followed. He reported the result as an approximation or estimate, being 0.2mg of methylamphetamine per litre of blood. He reported the result as an approximation because he had made an assumption about how the blood had become denatured and because the results from the different samples “were not within the normal guidelines of our laboratory for the accurate reporting of concentrations of drugs in blood.” The figure he gave was “an estimate, not a precise quantification.” Mr Sims’ assumption about the cause of the denaturing enabled him to conduct the analysis on the basis that there was no loss of blood in the denaturing process. My understanding of his evidence is that that was an important factor. It follows that, having regard to the manner in which he gave his evidence, an important basis for his evidence was his opinion as to the cause of the denaturing of the sample. Neither counsel explored with him at trial the implications for the accuracy of his estimate if his opinion as to the cause of the denaturing was wrong.

Decision

Reasons for decision

For the reasons given by Vanstone J, I would dismiss the appeal against sentence.Conclusions I would allow the appeal, set aside the conviction and order a retrial. PRIOR J: I agree with the reasons proposed by Justice Vanstone. The appeal should be dismissed. VANSTONE J: Wayne Robert Clarke appeals by leave against his conviction by verdict of a jury in the District Court for causing death by dangerous driving and also against the sentence imposed. The collision giving rise to the charge took place in the early hours of 5 November 2001, near Yumali. The appellant was driving a Freightliner prime mover towing a loaded trailer and travelling roughly north. His journey had started in Stawell in Victoria a bit over five hours earlier, although he had been on the road for much of the thirty-eight hours leading up to the collision and in that time had covered over 1500 kilometres in his rig. He was due at Port Adelaide at about 5.00 am, though he told police there was some flexibility. Clearly he could not have met that schedule. The deceased was travelling south in a Kenworth prime mover with two trailers containing empty bottles. The collision occurred on the eastern side of the highway, being the incorrect side for the appellant. The appellant told police he had no memory of the hour or so prior to the collision. The deceased died at the scene. There were no other witnesses to it. The appellant was convicted by unanimous verdict of a jury after a trial occupying ten days. Later he was sentenced to twenty-eight months imprisonment with a twelve month non-parole period and he was disqualified from holding or obtaining a driver’s licence for seven years. The grounds of appeal against conviction complain of the admission of evidence purporting to describe the quantity of methylamphetamine found in blood samples taken from the appellant after the collision, that blood having “denatured”; that directions given to the jury on that topic were in error; of certain further directions given by the learned trial judge on discrete topics and that the verdict was unsafe and unsatisfactory. I turn to the first ground which deals with admission of the analysis of the appellant’s blood. The appellant suffered injury in the collision. He was first taken to the Murray Bridge Hospital and later to the Flinders Medical Centre (“FMC”) for treatment. At each hospital samples of his blood were taken pursuant to section 47I(1) of the Road Traffic Act 1961 (“RTA”). In accordance with the Act the samples were each divided so that the appellant would have his own sample. About one and a half hours separated the taking of the samples. At the FMC part of the blood sampled was retained for purposes relevant to treatment. On 6 November 2001 it was sought to analyse the Road Traffic Act police samples which had been delivered to the Forensic Science Centre (“FSC”). It was found that each blood sample had denatured and was therefore not suitable for analysis via the method usually employed in respect of such samples. It was accepted before the judge on the voir dire that the appellant’s own samples had also denatured by the time of examination. On 15 November 2002 a forensic scientist, Mr Donald Sims, employed within the FSC examined the denatured police samples. He saw that they both had a jelly-like appearance. He sought to reconstitute them by adding water and vigorously mixing in a vortexer. Then he analysed them by the usual methods of gas chromatography and spectrometry. Having done so he concluded that the concentration of methylamphetamine in both of the preparations was “approximately 0.2 milligrams per litre of blood”. Whilst counsel for the appellant did not challenge the admissibility of the fact of methylamphetamine being found in the blood, it was asserted that the evidence as to the level was inadmissible since the method employed by Mr Sims was an unusual one in terms of FSC practice; and that, further, the evidence fell to be excluded in the exercise of the trial judge’s discretion, either because there had been illegality in the sense of non-compliance with section 47I RTA or because it would be unfair to the appellant to admit the evidence, he not having been given a sample of blood in good condition upon which independent analysis could be undertaken.

Ratio Decidendi

Legal Principle Established

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