R v Lewis - [2012] QDC 42

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Lewis [2012] QDC 42

PARTIES:

R
(Respondent)

V

BRENDON JOSEPH LEWIS
(Applicant)

FILE NO:

DCR 404/2011

DIVISION:

Criminal

PROCEEDING:

S 590AA Pre-trial Ruling

ORIGINATING COURT:

District Court at Charters Towers

DELIVERED ON:

12 March 2012

DELIVERED AT:

Charters Towers

HEARING DATE:

08 March 2012

JUDGE:

Durward SC, DCJ

ORDER:

Applications refused

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR UNLAWFULLY OBTAINED – whether evidence of a breath analysing instrument test and a count-back by a medical practitioner to determine level of intoxication should be excluded – whether evidence of recorded conversations between the applicant and police should be excluded – whether evidence of prior driving by the applicant should be excluded

CASES:

R v Smout [2005] QCA 120; R v Anderson [2005] QCA 304; Clauss v R [1994] 1 Qd R 427; R v Swaffield (1998) 192 CLR 159; R v LR [2006] 1 Qd R 435; EM v R (2007) 232 CLR 67; Van Der Meer v R (1988) 62 ALJR 656; R v Wilson [1997] QCA 265; R v W & Ors [1988] 2 Qd R 308; R v Cho [2001] QCA 196; Bunning v Cross (1978) 141 CLR 54; R v Lee (1950) 82 CLR 133; Cleland v R (1982) 151 CLR 1; Duke v R (1989) 180 CLR 508; R v Adamic (2000) 117 A Crim R 332; R v Ireland (1970) 126 CLR 321; R v Buchanan [1966] VR 9; R v Jurasko [1967] Qd R 128; R v Horvath [1972] VR 533; R v Clark (1986) 4 MVR 245; Martin v The Queen (1981) 4 A Crim R 302

LEGISLATION:

Criminal Code Act 1899 (Qld) ss 590AA; Transport Operations (Road Use Management) Act 1995 (Qld) ss 80(1), (2), (4), (8), (8J), (15), (15A), (15G), (15H), (24), (24A), (26); Police Powers & Responsibilities Act 2000 (Qld) ss 5(d) & (e), 7, 8(1), 54, 55, 56, 415, 418, 419; Police Service Administration Act 1990 (Qld) s 1.4

COUNSEL:

H Walters for the applicant
K Stone for the respondent

SOLICITORS:

Arthur Browne & Associates for the applicant
Office of the Director of Public Prosecutions for the respondent

This is a ruling in respect of three applications made on behalf of the accused, Brendon Joseph Lewis (“the applicant”).

The applicant is charged with dangerous operation of a vehicle causing death while adversely affected by an intoxicating substance, before leaving the scene.

The Applications

Mr Walters, on behalf of the applicant, made three pre‑trial applications pursuant to section 590AA of the Criminal Code of Queensland:

1. Exclusion of the evidence of a breath analysis instrument test conducted with the applicant at Charters Towers Police Station and a count-back by a medical practitioner to determine the level of alcohol concentration at the time of the incident, on an exercise of discretion, on the grounds of non-compliance with the

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 Lewis

Details

AGLC: R v Lewis [2012] QDC 42
Case: [2012] QDC 42
Decision Date: 12 March 2012

CaseChat Overview and Summary

The case of R v Lewis involved the respondent, Lewis, who was charged with driving under the influence of alcohol. The primary issue before the court was the admissibility of certain evidence, including the results of a breath analysis test, a count-back test conducted by a medical practitioner, recorded conversations between the respondent and police, and evidence of the respondent's prior driving history. The court had to determine whether the evidence was unfairly prejudicial, obtained unlawfully, or otherwise inadmissible under the law.

The court examined the principles governing the admissibility of evidence, focusing on whether the evidence was relevant, reliable, and not unfairly prejudicial to the respondent. The court considered the legal framework, including relevant case law and statutory provisions, to assess the admissibility of each type of evidence. For the breath analysis and count-back test, the court found these to be reliable and relevant to the charge of driving under the influence. The recorded conversations were deemed relevant for understanding the context and circumstances of the respondent's interactions with police. Lastly, the prior driving history was considered relevant for establishing a pattern of behavior.

The court concluded that none of the evidence should be excluded as it was relevant and admissible under the law. The applications to exclude the evidence were refused. Consequently, the evidence would be considered in determining the guilt or innocence of the respondent.

Orders

Orders of the court

Applications refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Lewis [2012] QDC 42
PARTIES:	R (Respondent) V BRENDON JOSEPH LEWIS (Applicant)
FILE NO:	DCR 404/2011
DIVISION:	Criminal
PROCEEDING:	S 590AA Pre-trial Ruling
ORIGINATING COURT:	District Court at Charters Towers
DELIVERED ON:	12 March 2012
DELIVERED AT:	Charters Towers
HEARING DATE:	08 March 2012
JUDGE:	Durward SC, DCJ
ORDER:	Applications refused
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR UNLAWFULLY OBTAINED – whether evidence of a breath analysing instrument test and a count-back by a medical practitioner to determine level of intoxication should be excluded – whether evidence of recorded conversations between the applicant and police should be excluded – whether evidence of prior driving by the applicant should be excluded
CASES:	R v Smout [2005] QCA 120; R v Anderson [2005] QCA 304; Clauss v R [1994] 1 Qd R 427; R v Swaffield (1998) 192 CLR 159; R v LR [2006] 1 Qd R 435; EM v R (2007) 232 CLR 67; Van Der Meer v R (1988) 62 ALJR 656; R v Wilson [1997] QCA 265; R v W & Ors [1988] 2 Qd R 308; R v Cho [2001] QCA 196; Bunning v Cross (1978) 141 CLR 54; R v Lee (1950) 82 CLR 133; Cleland v R (1982) 151 CLR 1; Duke v R (1989) 180 CLR 508; R v Adamic (2000) 117 A Crim R 332; R v Ireland (1970) 126 CLR 321; R v Buchanan [1966] VR 9; R v Jurasko [1967] Qd R 128; R v Horvath [1972] VR 533; R v Clark (1986) 4 MVR 245; Martin v The Queen (1981) 4 A Crim R 302
LEGISLATION:	Criminal Code Act 1899 (Qld) ss 590AA; Transport Operations (Road Use Management) Act 1995 (Qld) ss 80(1), (2), (4), (8), (8J), (15), (15A), (15G), (15H), (24), (24A), (26); Police Powers & Responsibilities Act 2000 (Qld) ss 5(d) & (e), 7, 8(1), 54, 55, 56, 415, 418, 419; Police Service Administration Act 1990 (Qld) s 1.4
COUNSEL:	H Walters for the applicant K Stone for the respondent
SOLICITORS:	Arthur Browne & Associates for the applicant Office of the Director of Public Prosecutions for the respondent