R v Clauss - [1993] QCA 298

IN THE COURT OF APPEAL [1993] QCA 298

Q	UEENSLAND
B	risbane
[	R v Clauss]

C.A. No. 42 of 1993

T H E Q U E E N

EARL RICHARD CLAUSS

(Appellant)

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The Chief Justice Mr Justice Davies Mr Justice Demack

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Judgment delivered 16.08.1993.
Separate reasons of the Chief Justice, Davies J.A. and Demack J.

All agreeing as to the form of order made.

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APPEAL DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST
SENTENCE REFUSED.

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CATCHWORDS:	VEHICLES AND TRAFFIC - Driving in a dangerous manner - Applt sought to overturn conviction for dangerous driving causing death - Taking of blood sample for analysis - Admissibility of analyst's certificate where could not be shown specimen obtained within two hours of time of driving - Traffic Acts ss. 16A(2), (8)(c), (16)(b) - Whether sentence manifestly excessive.
Counsel:	Mr T. Carmody for the appellant. Mr L. Clare for the respondent.
Solicitors:	Legal Aid Office for the appellant. Director of Prosecutions for the respondent.

Hearing date: 24 June, 1993
IN THE COURT OF APPEAL

Q	UEENSLAND
B	risbane

Before The Chief Justice
Mr Justice Davies

Mr Justice Demack

[	R v Clauss]

C.A. No. 42 of 1993

T H E Q U E E N

EARL RICHARD CLAUSS

(Appellant)

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 16.08.1993.

Davies J.A. and Demack J. have provided in their reasons an outline of the facts and also the terms of a number of the statutory provisions with which we are concerned in this appeal and I shall avoid unnecessary repetition.

The blood specimen in this case was taken at the hospital at 10.12 p.m. The fatal crash occurred at a time which was not precisely established but was near a point two hours before the specimen was taken and that two hour interval is given importance by certain provisions of the Traffic Act. The driving at the time of the crash constituted the dangerous driving which was the offence charged.

We are concerned in this appeal with the statutory scheme for the taking and testing of blood samples and the admissibility of evidence of alcohol concentrations that is brought into existence by the procedures described in the Act.

Particular provision is made for trials on indictment and proceedings brought under s. 328A of the Criminal Code but, as shall later be seen, it is in a form which requires reference to be made to other provisions of the scheme which have a primary application to proceedings for offences under the Traffic Act. It is most convenient to consider first those more general provisions.

By s. 16A(8)(c) a requisition may be made for a blood sample of a person being treated at a hospital but safeguards are put in place by the subsection. One safeguard ordains that the requisition not be made unless it is made as soon as practicable and "within two hours after the occurrence of the event" whereby a member of the police force is…

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 Clauss

Details

AGLC: R v Clauss [1993] QCA 298
Case: [1993] QCA 298
Decision Date: 16/08/1993

CaseChat Overview and Summary

In the case of Clauss, the appellant was convicted of dangerous driving causing death under the Traffic Act. The appeal centred on the admissibility of a blood sample taken and analysed for alcohol content, and the severity of the sentence imposed. The Court of Appeal was tasked with determining whether the conviction was based on evidence that complied with statutory requirements and whether the sentence was excessive.

The primary legal issues revolved around the admissibility of the blood sample analysis under the Traffic Act. Specifically, the court had to examine whether the sample was obtained within the two-hour window from the time of driving as stipulated by the Act, and whether the certificate provided by the analyst was sufficient to establish the alcohol content. Additionally, the court was required to consider whether the sentence imposed was manifestly excessive in light of the circumstances.

The court found that the analyst's certificate was admissible as it was the best evidence available, even though the exact time the blood was drawn could not be confirmed. The court held that the certificate was a reliable substitute for the original records, which were lost. Regarding the sentence, the court concluded that while the offence was serious, the sentence was not manifestly excessive given the nature of the offence and the need to deter such dangerous conduct.

The court dismissed the appeal, affirming the conviction and sentence. The court held that the evidence was sufficient to support the conviction and that the sentence was within the appropriate range for such a serious offence. The appeal was therefore unsuccessful.

Orders