R v Haoui

[2007] NSWDC 62

CITATION:	R v HAOUI [2007] NSWDC 62
HEARING DATE(S):	30th January 2007 - 7th February 2007
JUDGMENT DATE:	20 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
CATCHWORDS:	Criminal Law - Admissibility of Expert Evidence - Speed of Accused's Vehicle
LEGISLATION CITED:	Evidence Act
PARTIES:	Crown Joseph Robert Haoui
FILE NUMBER(S):	04/11/1278
COUNSEL:	P. Leask (Crown) D. Campbell SC (Accused)
SOLICITORS:	NSW DPP Slattery Jurd & Co

Admissibility of Officer Kelly’s Evidence

1 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. He pleaded not guilty to that charge. The only evidence that the Crown had to establish the speed that the accused was travelling came from a police officer, Sgt John Kelly. 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 verdict they later returned.

2 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 Sgt Kelly that I would give my reasons for that decision later. These are those reasons.

3 Sgt Kelly did not actually attend the location in Frederick St 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 St immediately before he braked in an effort to avoid colliding with the vehicle in which Mr Mousselamani was travelling.

4 Sgt 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.

5 Mr Campbell SC who appeared with Mr Bolster for the accused challenged the admissibility of Sgt Kelly’s calculations and conclusions on a number of bases. He firstly complained about the circumstances in which the evidence that Sgt 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 Sgt Kelly, and served on the accused, was seriously deficient. It failed to identify why it was that Sgt 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.

6 However the Crown made an effort to overcome those circumstances by the provision of further reports prepared by Sgt 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 Sgt Kelly was called to give evidence.

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

8 In these circumstances Mr Campbell asked me to exclude the evidence under s137 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. Section 137 Evidence Act is usually directed to circumstances in which evidence is put before jury and there is a risk 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 the danger of unfair prejudice to the accused outweighs the probative value of the evidence.

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

10 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. 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.

11 If Mr Campbell did wish to seek the opinion of his own expert I would have granted him the time to do so. If that required the re-calling 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. 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 Court room while we dealt with legal issues was because of the Crown obtaining and serving information very late.

12 Mr Campbell also submitted that Sgt 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 has been shown.

13 Sgt 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 the coefficient of friction on the road way. He explained why he had chosen the values that he had. 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 Sgt Kelly used those figures. He was able to work out the departure angle of travel for each vehicle because he knew from a plan prepared by the police where the vehicles had ended up and he knew from some glass on the roadway where the collision had occurred. In each case Sgt 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.

14 As far as the coefficient of friction is concerned Sgt Kelly’s estimation of this came in 2 stages. At the time of preparing his first report he had not been to Frederick St 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. He also knew the nature of the road surface and that the road way 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.

15 Some years later, after the police had purchased a particular item of equipment, he went out to Frederick St and actually measured the coefficient of friction. 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 Sgt 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 the coefficient of friction which existed at the time of the collision. However the most important aspect of the later test done by Sgt 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.

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

17 Having calculated the pre-impact speed Sgt 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 91 kph. There could be no challenge to a submission that travelling at 91 kph was a dangerous speed in the circumstances.

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

19 Another matter which Mr Campbell suggested would render Sgt Kelly’s evidence inadmissible was a suggested failure to demonstrate any expertise enabling Sgt Kelly to give the evidence he did. I will not delay matters by setting out Sgt Kelly’s history of work and education. It is all set out in the transcript and his reports. It is not to the point that some other person might have 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 Sgt Kelly was using untested science or that he was attempting to use equations of motion in circumstances where they had never been used before. I am satisfied that Sgt 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.

20 Finally Mr Campbell referred to s136 Evidence Act. He said that the evidence might be unfairly prejudicial or misleading or confusing and suggested that I could limit the evidence that Sgt Kelly could give. That is not what s136 is directed to. It is directed to the position where the jury would be 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.

21 The evidence of Sgt 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 Sgt Kelly’s evidence and in particular to the validity of the values he chose to put into the equations he used. Having observed the evidence, and having read his reports, I formed a view that his evidence was admissible for the reasons I have just given.

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