R v HOCHBAUM - [2004] SASC 230

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HOCHBAUM
Judgment of The Court of Criminal Appeal
(The Honourable Justice Mullighan, The Honourable Justice Nyland and The Honourable Justice Anderson)
5 August 2004
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
Appellant found guilty of causing bodily harm by dangerous driving - dispute regarding appellant's blood alcohol level - whether error in trial Judge's directions to jury - whether elements of driving in manner dangerous adequately dealt with - whether blood alcohol evidence should have been admitted - whether proper use of expert evidence - whether remarks in prosecutor's closing address caused the trial to miscarry - appeal dismissed on all grounds.
District Court Rules 1992 Rule 9, referred to.
R v Duncan (1953) 11 SASR 592; R v Mayne (1975) 11 SASR 583; Kroon v R (1991) 55 SASR 476; R v Leaf-Milham (1987) 47 SASR 499; R v Greenham (1997) 25 MVR 495; R v Arnold [2003] SASC 422, applied.
R v E (1996) 39 NSWLR 450; McKinney v R (1991) 171 CLR 468; R v G [1994] 1 Qd R 540, distinguished.

R v HOCHBAUM
[2004] SASC 230
Court of Criminal Appeal: Mullighan, Nyland Anderson JJ

MULLIGHAN J: I would dismiss the appeal for the reasons given by Anderson J.
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by Anderson J.
ANDERSON J: This is an appeal against conviction. The appellant was found guilty by a majority verdict of causing bodily harm by dangerous driving in the District Court on Monday, 3 November 2003.
The Offence
The charge arose out of a collision between two motor vehicles on Cherry Gardens Road at Cherry Gardens, on 22 August 2001 at about 6.05 pm. The appellant was driving his four-wheel drive vehicle in a westerly direction, when he rounded the corner on the wrong side of the road and ran into Mrs Salt’s Ford Falcon. Mrs Salt (the victim) suffered two broken bones in her leg, fractures in both arms, a fractured collarbone and a shattered nose. It was alleged that the collision and resulting injuries to the victim occurred because the appellant had been driving in a manner dangerous to the public.
The appellant had spent the afternoon playing golf at the Blackwood Golf Club, and had eaten a meal and consumed some drinks with three associates before leaving the Golf Club at 6.00 pm. He then travelled down Cherry Gardens Road at dusk. It is the prosecution case, that the appellant’s car travelled for some considerable distance on the wrong side of the road as it passed a pedestrian witness, Mrs Kelleher, who said she observed the appellant’s vehicle, from her position on the side of the road, straddling the white lines. It then moved back to the incorrect side of the road. She said it continued on the wrong side…

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 HOCHBAUM

Details

AGLC: R v HOCHBAUM [2004] SASC 230
Case: [2004] SASC 230
Decision Date: 5 August 2004

CaseChat Overview and Summary

The appellant, in this case, was found guilty of causing bodily harm by dangerous driving. The dispute primarily concerned the appellant's blood alcohol level and whether there was an error in the trial judge's directions to the jury regarding the elements of driving in a dangerous manner. The appellant argued that the trial judge should have admitted the blood alcohol evidence and properly used expert evidence. The appellant also contended that remarks made by the prosecutor during the closing address caused the trial to miscarry.

The court had to decide whether the trial judge's directions to the jury were erroneous, if the elements of dangerous driving were adequately addressed, whether the blood alcohol evidence should have been admitted, and if the expert evidence was correctly used. Additionally, the court had to determine whether the prosecutor's remarks during the closing address caused a miscarriage of justice.

The court dismissed the appeal on all grounds. The court found that the trial judge did not err in her directions to the jury. The court held that the trial judge had adequately addressed the elements of dangerous driving and that there was no need to admit the blood alcohol evidence. The court also found that the expert evidence was properly used and that the prosecutor's remarks did not cause a miscarriage of justice.

The final orders of the court were to dismiss the appeal on all grounds.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Lokan, the expert analyst, explained that at the finish of drinking, there would have been some alcohol left in the stomach, such that the blood alcohol concentration would have continued to rise after the finish of drinking. In this case because the accident occurred so soon after the appellant stated he finished drinking, the blood alcohol concentration would have continued to rise for some time after the accident. The difficulty lies in determining just when the maximum blood alcohol concentration was achieved and by how much the blood alcohol concentration rose after the finish of drinking. Mr Lokan stated that in this case the blood alcohol concentration certainly continued to rise for some time after the time of the accident.Reasons for Admitting the Evidence In her reasons for ruling, the learned trial Judge observed that there would be a factual dispute at trial as to the actual amount of alcohol consumed by the appellant, and that both scenarios were accommodated by the opinion of the analyst, Mr Lokan, who had estimated that the blood alcohol reading could be anywhere in the range .02% to .07%. Her Honour referred to the general principle that evidence of the consumption of alcohol proximate to an accident will generally be admitted in a trial where an accused is charged with dangerous driving on the basis that it is relevant as one of the circumstances in the jury’s assessment of the accused’s manner of driving together with all the other relevant circumstances. The learned trial Judge took the view that the factual issue of whether the blood alcohol level was more likely to be in the range of .01% to .02% or in the higher range of .05% to .07% was a matter for the jury to determine after hearing the evidence of the relevant witnesses. She observed that the jury would have the assistance of the observations of Dr White, an expert pharmacologist, as to the effects of blood alcohol levels at both the higher and the lower range, and said that the jury would in any case be capable of inferring without any medical evidence the effects of even moderate amounts of alcohol.Summing Up on the Alcohol Issue The learned trial Judge told the jury that it was for them to decide whether the appellant’s consumption of alcohol impaired his capacity to drive. Her Honour referred to the evidence given about the amount of alcohol consumed by the appellant that evening – she said that the appellant had told the jury he drank only two glasses of wine in the half to three quarters of an hour immediately prior to leaving the golf club at about five minutes to 6 o’clock. She also pointed to the evidence led by the Crown, which seemed to show the accused with three associates consuming two bottles of wine between them prior to departing from the club house. Her Honour then said that on any view of the evidence, and having in particular regard to the expert evidence of Mr Lokan, and Dr White, it was unlikely that the blood alcohol level of the appellant would have exceeded .05%. She referred to Mr White’s evidence which suggested that a person with a blood alcohol level of .03% to .04% may be slowed down when required to make a difficult decision, but that at a level of only .01% to .02% some studies have suggested there may be a slight decrease in the probability of a crash. The learned trial Judge concluded that the evidence in the case did not necessarily support an inference that the blood alcohol level of the accused would have been any higher than .04% at most at the time of the accident.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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