R v Cullen - [2005] SASC 218

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CULLEN
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)
17 June 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - MOTOR VEHICLES
Appeal against conviction - appellant convicted by jury of causing death by dangerous driving - admissibility of expert evidence challenged on appeal - discussion of admissibility of expert evidence generally - consideration of factual basis of expert evidence - consideration of adequacy of summing up - appeal dismissed.
R v Bonython (1984) 38 SASR 45; Commissioner for Government and Transport v Adamcik (1961) 106 CLR 292; R v Abadom [1983] 1 WLR 126; H v Schering Chemical [1983] 1 WLR 143; Borowski v Quayle [1966] VR 382; PQ v Australian Red Cross Society [1992] 1 VR 19; R v Fazio (1997) 69 SASR 54; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; HG v The Queen (1999) 197 CLR 414; Ramsay v Watson (1961) 108 CLR 642; Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844, considered.

R v CULLEN
[2005] SASC 218
Court of Criminal Appeal Gray, Sulan and White JJ
GRAY and SULAN JJ

Following a trial in the District Court, Nicole Terri Cullen, the appellant, was convicted by jury verdict of the offence of causing death by dangerous driving. This is an appeal against that conviction.
Crown Case
The incident giving rise to the charge occurred on 23 April 2002 at or about 9.00pm in an outer Adelaide suburb. It was the Crown case that the appellant drove a red Ford motor vehicle in a manner which was dangerous to the public and thereby caused the death of a passenger in the vehicle, Clinton Robert Gillespie. As a result of a collision between the red Ford and a tree, Mr Gillespie was thrown from the vehicle and died from his injuries. Mr Gillespie was bald and had a beard.
The principal issue at trial was the identity of the driver of the vehicle. It was the Crown case that at the time of the incident the appellant was the driver and Mr Gillespie an unrestrained front seat passenger.
A number of witnesses observed the red Ford prior to the collision. Other witnesses attended at the scene shortly after the collision. The jury were asked to conclude from their evidence, from other circumstantial evidence and having regard to expert opinion evidence, that the appellant was the driver.
Samantha Tanner, a passenger in a vehicle overtaken by the red Ford shortly before the collision, observed a person with long “blond browny” shoulder-length hair to be the driver of the red Ford.
Ellen DeConno was a passenger in a vehicle which stopped next to the red Ford at traffic…

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 Cullen

Details

AGLC: R v Cullen [2005] SASC 218
Case: [2005] SASC 218
Decision Date: 17 June 2005

CaseChat Overview and Summary

In the matter of R v Cullen, the appellant was convicted by a jury of causing death by dangerous driving. The conviction was challenged on appeal, specifically regarding the admissibility of expert evidence presented during the trial. The central legal issues involved the criteria for the admissibility of expert evidence and whether the jury's verdict was adequately supported by the evidence, including the expert testimony.

The court addressed the admissibility of expert evidence by reviewing the criteria established in previous cases. The expert evidence in question needed to fall within a recognised field of specialised knowledge, the expert needed to demonstrate their expertise in that field, and the opinion had to be based on that specialised knowledge. The court examined whether the expert's opinion was sufficiently grounded in their expertise and whether the factual basis of the opinion was adequately proven. The court concluded that the expert evidence was properly admitted as it met the necessary criteria and was supported by the facts presented. Additionally, the court assessed whether the summing up to the jury adequately addressed the expert evidence and whether it was necessary for the jury to consider the expert opinion in reaching their verdict. The court found that the summing up was adequate and the jury's verdict was supported by the evidence, including the expert testimony.

The court ultimately dismissed the appeal, affirming the conviction. The reasoning was that the expert evidence was properly admitted and did not undermine the jury's verdict. The court was satisfied that the jury had a sufficient body of evidence, independent of the expert opinion, to convict the appellant beyond reasonable doubt. The court found no basis for a retrial or an acquittal, concluding that there was no risk of a miscarriage of justice. The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Counsel for the appellant contended that as a result there was a risk of a miscarriage of justice. It was said that the verdict should be set aside and a verdict of acquittal entered. Alternatively there should have been an order for a retrial.Expert Evidence For expert opinion evidence to be admissible, it must first be established that the subject matter of the opinion falls within that category of subject in respect of which expert evidence is admissible. This gives rise to the following questions:-whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment without the assistance of witnesses possessing specialised knowledge and experience in the area.-whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience a special acquaintance with which by the witness would render his or her opinion of assistance to the court.-whether the witness has acquired by study or experience sufficient knowledge of the subject to render his or her opinions of value in resolving the issues before the court.If these questions are satisfied, the evidence of the expert is admissible and the witness is entitled to express opinions.[1][1] R v Bonython (1984) 38 SASR 45 at 46. When it is established that the witness is an expert in a relevant field of knowledge, they are permitted to express their opinions however unconvincing they might appear to be: Commissioner for Government and Transport v Adamcik (1961) 106 CLR 292. Once a witness is duly qualified, the witness is entitled to draw on material (including unpublished work and work from others in his field) as part of the witness’ process in arriving at conclusions, provided the work is clearly identified to enable its cogency to be tested: R v Abadom [1983] 1 WLR 126; H v Schering Chemical [1983] 1 WLR 143; Borowski v Quayle [1966] VR 382; PQ v Australian Red Cross Society [1992] 1 VR 19; R v Fazio (1997) 69 SASR 54. In Makita (Australia) Pty Ltd v Sprowles,[2] Heydon JA extensively reviewed the authorities concerning expert evidence. Having referred to the High Court decision in HG v The Queen,[3] Heydon JA summarised the position as follows:[4]In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v The Queen (at 428 [41]), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.[2] (2001) 52 NSWLR 705.[3] (1999) 197 CLR 414 at [39]-[44].[4] (2001) 52 NSWLR 705 at 743-744.

Decision

Reasons for decision

WHITE J

As earlier observed, there was a body of evidence from which the jury was entitled, quite apart from the expert opinion evidence, to reach the conclusion, beyond reasonable doubt, that the appellant was the driver of the red Ford. The only witness to give evidence of the scene to directly contradict the evidence of a number of the other witnesses was Mr Beveridge. Mr Beveridge only provided a statement to police a few days before trial. His evidence was against the weight of the evidence. The sequence of events that he described was inconsistent with the sequence of events of other witnesses attending at the scene. If the events occurred as he had claimed, a number of the other witnesses would have seen the appellant move from the passenger’s seat to the driver’s seat. The evidence of the daughter of the appellant was inconsistent with the evidence of many witnesses and did not come from an entirely independent source. The evidence of those other witnesses was also supported by the unchallenged evidence of Mr Aust concerning the fact that the passenger’s seat belt had not been worn at the time of the collision.Conclusion There is no reason to doubt the correctness of the jury’s verdict. A review of the evidence in its entirety confirms that there is no risk of a miscarriage of justice having occurred. This appeal should be dismissed. I agree that the appeal should be dismissed. I agree with the reasons of Gray and Sulan JJ.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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