R v Durham

[2025] NSWDC 235

District Court

New South Wales

Medium Neutral Citation:

R v DURHAM [2025] NSWDC 235

Hearing dates:

7 May 2025, 9 May 2025

Date of orders:

1 July 2025

Decision date:

01 July 2025

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Verdict of guilty to the count on the Indictment

Catchwords:

Trial by judge alone – expert evidence – whether the expert for the accused is qualified to give the opinion he purports to give – driving under the influence occasioning grievous bodily harm – BAC at time of impact

Legislation Cited:

Crimes Act, 1900

Evidence Act, 1995

Road Transport Act, 2013

Cases Cited:

Atkinson v Coles Supermarkets [2020] NSWSC 1063

Cheung v The Queen (2001) 209 CLR 1

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR [2001] NSWCA 305

R v Bonython (1984) 38 SASR 45

Category:

Principal judgment

Parties:

Rex
Benjamin Luke DURHAM

Representation:

Counsel:
Mr P Kerr for the Crown
Mr B Hart for the Accused

Solicitors:
Mr Z Oakes, Office of the Director of Public Prosecutions
Ms B Gosling, Hosking & Gosling Legal

File Number(s):

2023/00236281

Publication restriction:

No

JUDGMENT

1. On 7 May 2025 the accused appeared at the Wagga Wagga District Court in respect of an Indictment containing one count, namely that he:

On 23 July 2023 at Memagong in the State of New South Wales, drove a vehicle, namely a white Toyota Land Cruiser with registration EWJ-14V, which was involved in an impact occasioning grievous bodily harm to Darren McManus and, at the time of the impact he was driving the vehicle under the influence of intoxicating liquor and in circumstances of aggravation, namely that the prescribed concentration of alcohol was present in his blood, contrary to s. 52A(4) of the Crimes Act, 1900.

2. The accused entered a plea of Not Guilty to that charge but pleaded guilty to the statutory alternative, i.e. a charge of Driving Under the Influence Occasioning Grievous Bodily Harm without the factor of aggravation. The Crown did not accept the plea to the alternative, and accordingly, the matter went to trial. However, there is only one matter in dispute namely whether the accused had the prescribed concentration of alcohol in his blood. The prescribed concentration of alcohol for the purposes of the section is 0.15.

3. Evidence was taken on 7 May 2025. On 9 May 2025 a timetable for submissions was set. The court is grateful to both counsel for complying with the timetable.

Factual Background

4. The matter relates to a single vehicle motor vehicle impact that occurred at about 9.25pm on 23 July 2023 at Memagong, which is near the town of Young in southern New South Wales. The accused had obviously been drinking a considerable quantity of alcohol. Darren McManus was a passenger in the Land Cruiser vehicle being driven by the accused. The vehicle impacted with a tree and as a result Mr McManus received spinal injuries, the extent of which…