R v Haoui

[2007] NSWDC 140

CITATION:	R v HAOUI [2007] NSWDC 140
HEARING DATE(S):	30th January 2007 - 7th February 2007
JUDGMENT DATE:	20 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The evidence was admissible
CATCHWORDS:	Criminal Law - Judgment - Voir Dire - Admissibility of Evidence - Motor vehicle collision
LEGISLATION CITED:	Evidence Act
PARTIES:	Crown Joseph Robert Haoui
FILE NUMBER(S):	04/11/1278
COUNSEL:	P Leask (Crown) D Campbell SC (Offender)
SOLICITORS:	NSW DPP Slattery Jurd & Co

JUDGMENT

1 HIS HONOUR: Joseph Robert Haoui appeared for trial charged with driving at a speed dangerous to another person or persons whereby his vehicle was involved in an impact as a result of which grievous bodily harm was occasioned to Kamal Mousselamani.

2 He pleaded not guilty to that charge.

3 The only evidence that the crown had to establish the speed that the accused was travelling, came from a police officer, Sergeant John Kelly.

4 Before his evidence was given in the trial proper, a voir dire was conducted and I was asked to rule on the admissibility of his evidence. I ruled that his evidence was admissible and he was then called to give evidence before the jury. The jury must have accepted that evidence beyond reasonable doubt in view of the verdict they later returned.

5 Because I was anxious not to unnecessarily delay the jury any more than it had been, I indicated, when announcing my decision to admit the evidence of Sergeant Kelly, that I would give my reasons for that decision later. These are those reasons.

6 Sergeant Kelly did not actually attend the location in Frederick Street at the time of the collision, although he did go there some considerable time later. Instead he relied on material obtained by other police officers in order to calculate what he said was a conservative value for the speed at which the accused was travelling down Frederick Street immediately before he braked in an effort to avoid colliding with the vehicle in which Mr Mousselamani was travelling.

7 Sergeant Kelly’s evidence was that by obtaining various bits of data and then by putting those into well-accepted equations of motion, it was possible to calculate the speed that the accused was driving.

8 Mr Campbell SC, who appeared with Mr Bolster for the accused, challenged the admissibility of Sergeant Kelly’s calculations and conclusions on a number of bases.

9 He firstly complained about the circumstances in which the evidence that Sergeant Kelly could give was made known to him. I have mentioned those circumstances in an earlier judgment. It is sufficient for the purposes of this judgment to note that the first report prepared by Sergeant Kelly and served on the accused was seriously deficient. It failed to identify why it was that Sergeant Kelly had chosen particular values to put into the equations and failed to demonstrate that the equations he used were accepted as a valid method of calculating speed from that data.

10 However, the crown made an effort to overcome these circumstances by the provision of further reports prepared by Sergeant Kelly. Those reports were served very late on the accused. Indeed, the trial had been proceeding for some time before the final report was served on the accused and that was done a very short time before Sergeant Kelly was called to give evidence.

11 This is hardly a commendable state of affairs, but the question as to whether Sergeant Kelly’s evidence was admissible or not does not depend on whether this state of affairs is commendable or not.

12 In these circumstances, Mr Campbell asked me to exclude the evidence under s 137 of the Evidence Act. He said that there was a danger of unfair prejudice to his client which had come about because of the history I have shortly outlined.

13 Section 137 is usually directed to circumstances in which evidence is put before a jury and there is a risk that the jury will misuse that evidence. But even if the section can be applied in circumstances such as I have described, then I can see no reason for concluding that danger of unfair prejudice to the accused outweighs the probative value of the evidence.

14 In performing that balancing exercise, I must first consider the probative value of Sergeant Kelly’s evidence. Once the faults which are apparent in Sergeant Kelly’s first report are overcome by the provision of other written material from Sergeant Kelly which was then supplemented by the oral evidence which was given on the voir dire, the basis of Sergeant Kelly’s conclusion becomes apparent.

15 He has explained why he chose particular values and the evidence is such that there is now a basis demonstrated for his selection of those values. There is now also demonstrated the validity, or at least the general acceptance of the equations he uses in order to come to the conclusion he does.

16 When I compare that to the danger of unfair prejudice, I note that what Mr Campbell was submitting was that he suffered forensic difficulties because of the late service of the necessary evidence.

17 However, when I pressed Mr Campbell in an effort to discover precisely what those forensic difficulties were, and more importantly how they prejudiced his client, it became clear to me that any difficulties or prejudice could easily be overcome by adjournments and directions.

18 If Mr Campbell did wish to seek the opinion of his own expert, I would have granted him time to do so. If that required the recalling of crown witnesses, again I would have allowed him to do so. Any fear that the jury might hold his client responsible for the subsequent delay could be dealt with by me telling the jury, in forceful terms if necessary, that any delay and inconvenience is solely the responsibility of the prosecution because they had failed to do what they should have done before the trial got underway.

19 I note in passing that I did tell the jury in any case that the reason they had spent so much time out of the courtroom while we dealt with legal issues was because of the crown obtaining and serving information very late.

20 Mr Campbell also submitted that Sergeant Kelly’s opinion was also inadmissible because he failed to explain the basis for it. Whether that was the case before the voir dire evidence was completed is one thing, but I am satisfied that once all his reports had been tendered and his evidence given, the basis on which his opinion was formed was fully explained and a proper basis for choosing those values and equations had been shown.

21 Sergeant Kelly gave evidence that in order to calculate a speed at time of impact he needed to know the angle at which the vehicles collided, their post-impact angle of travel, the distance they travelled after impact and their coefficient of friction on the roadway. He explained why he had chosen the values that he had.

22 The impact angles were estimated from photographs taken by police showing the damage to the vehicles. The mass of the vehicles he obtained from RTA records, making allowances for fuel state and the number of passengers. The distance travelled after collision was measured by police who attended the scene of the collision and Sergeant Kelly used those figures.

23 He was able to work out the departure angle of travel for each vehicle because he knew from a plan prepared by police where the vehicles had ended up and he knew from some glass on the roadway where the collision had occurred.

24 In each case, Sergeant Kelly said that he used conservative values, which meant that where there was any margin of error he chose a figure which favoured the accused, that is, which underestimated the speed which would ultimately be calculated.

25 As far as the coefficient of friction is concerned, Sergeant Kelly’s estimation of this came in two stages.

26 At the time of preparing his first report, he had not been to Frederick Street but used his experience in analysing motor vehicle collisions to estimate what the coefficient of friction actually was. He knew that visible tyre marks had been left on the roadway which suggested that the coefficient of friction must have been above a certain level, otherwise any skid marks would have been invisible to the naked eye.

27 He also knew the nature of the road surface and the roadway was wet. From his years of experience in investigating motor vehicle collisions, he was able to estimate a figure for the appropriate coefficient of friction, and again he explained he chose a conservative figure, that is, one which favoured the accused.

28 Some years later, after police had purchased a particular item of equipment, he went out to Frederick Street and actually measured the coefficient of friction.

29 As Mr Campbell pointed out, there are a number of differences between the test he did that day and the circumstances which existed at the time of the collision. These differences were all the subject of cross-examination, but Sergeant Kelly was able to explain how those different circumstances would have affected the result he obtained, and the utility of the coefficient of friction he measured as being a guide to other coefficient of friction which existed at the time of the collision.

30 However, the most important aspect of the later test done by Sergeant Kelly is that it tended to suggest the accuracy of the figure he had earlier estimated from his experience, that is, the coefficient of friction he measured was not more favourable to the accused than the coefficient of friction he had earlier estimated in performing his calculation.

31 Sergeant Kelly also explained why he had used the equation which he had used to calculate the pre-impact speed, that equation being well-recognised in textbooks devoted to the analysis of motor vehicle collisions.

32 Having calculated the pre-impact speed, Sergeant Kelly was then able to measure the length of the skid marks and, again using the coefficient of friction, calculate the speed the accused’s vehicle was doing at the start of the skid marks. As I have said, this speed he calculated as ninety-one kilometres an hour.

33 There could be no challenge to a submission that travelling at ninety-one kilometres an hour was a dangerous speed in the circumstances.

34 As I have explained, Sergeant Kelly was able to demonstrate the validity of the values he had chosen as well as the acceptance of the equations to which those values were put in order to calculate the speed of the accused’s vehicle.

35 Another matter which Mr Campbell suggested would render Sergeant Kelly’s evidence inadmissible was a suggested failure to demonstrate any expertise enabling Sergeant Kelly to give the evidence he did. I will not delay matters by setting out Sergeant Kelly’s history of work and education. It is all set out in the transcript and his reports.

36 It is not to the point, that some other person might have had more expertise, or might even disagree with the values chosen or the equations used, (not that Mr Campbell suggested any of these matters). This is not a case where there was a suggestion made that Sergeant Kelly was using untested science or that he was attempting to use equations of motion in circumstances where they had never been used before.

37 I am satisfied that Sergeant Kelly’s expertise extended sufficiently such that he had the specialised knowledge or training required in order to provide an opinion which could be acted upon by the jury.

38 Finally, Mr Campbell referred to s 136 of the Evidence Act. He said that the evidence might be unfairly prejudicial, misleading or confusing, and suggested that I could limit the evidence that Sergeant Kelly could give. That is not what s 136 is directed to. It is directed to the position where the jury would have been told that they could not use evidence which had been given in a particular way. It is not directed to preventing the evidence being admitted in the first place.

39 The evidence of Sergeant Kelly was clearly important, and indeed the crown had no case without it. It is for that reason that a great deal of attention was paid to the admissibility of Sergeant Kelly’s evidence, and in particular to the validity of the values he chose to put into the equations he used.

40 Having observed the evidence and having read his reports, I formed the view that his evidence was admissible for the reasons I have just given.

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