R v Hamdan
[2022] ACTSC 242
•7 September 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hamdan |
Citation: | [2022] ACTSC 242 |
Hearing Date: | 5–7 September 2022 |
DecisionDate: | 7 September 2022 |
ReasonsDate: | 8 September 2022 |
Before: | Elkaim J |
Decision: | The Crown’s question on speed is rejected |
Catchwords: | CRIMINAL LAW – EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – whether answering Crown’s question within witness’ expertise |
Parties: | The Queen (Crown) Ameen Hamdan (Accused) |
Representation: | Counsel S Saikal-Skea (Crown) J Purnell SC (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) JDR Law (Accused) | |
File Numbers: | SCC 5 of 2022 SCC 6 of 2022 |
Elkaim J:
Dr Parekh was called to give evidence by the Crown. She is an experienced medical practitioner who has, in the course of her practice, examined and reported upon many seriously injured persons.
In this case, Dr Parekh had prepared a report (Exhibit F) commenting upon the injuries suffered by one of the passengers in the motor vehicle accident which is the subject of the prosecution. Count 2 relates to this passenger, Mr Dandash. The Crown case is that he suffered grievous bodily harm in the accident. Whether or not he suffered such harm is an issue in the trial.
A more fundamental issue is the speed at which the vehicle was travelling before it left the road and hit a tree. This is the primary question on whether or not the driving had been culpable. The Crown case is that the vehicle was travelling between 80 and 100 km/h. The defence case is that it was travelling close to the speed limit of 50 km/h.
Dr Parekh had never examined Mr Dandash. Her report is based on medical records.
In the course of her evidence in chief, the doctor was asked:
Based on your experience in these types of matters, having regard to the fracture to the humerus, are you able to comment or give any opinion on the velocity of the impact in this case?
Objection was taken to this question on the basis that it was outside the expertise of the doctor. The doctor had given evidence of her experience, which the Crown said established the relevant expertise.
I disagree. The ability to expertly gauge the speed of a vehicle based upon the injuries suffered by an occupant is a specialised field, usually possessed by a bio-mechanics expert. The qualifications listed by Dr Parekh in the annexure to her report reveal no expertise in this field.
I also note that I asked Dr Parekh, in the absence of the jury, whether, if the following sentence in her report was omitted, her conclusions would remain:
The collision was described as a head on collision with an unknown closing speed estimated to be 60km/h to 80km/h.
The doctor said the conclusions would be the same. In other words, the conclusions would not be affected by any comment about the speed of the vehicle.
The Crown relied on a notice of disclosure (MFI 6) which had been provided to the accused and which stated:
· Would have come from a high velocity collision based on the injuries sustained
· Didn’t happen at a low speed
These two assertions are merely statements of opinion. They say nothing about the basis upon which the conclusions were reached. They do not assist the Crown in establishing any expertise or basis for the evidence being allowed.
I have come to the view that Dr Parekh should not be permitted to give the evidence sought by the Crown because her expertise to do so has not been established. Further, no reasoned report expressing this opinion has ever been served by the Crown.
Accordingly, I reject the Crown’s question.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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