R v MC Dermottroe - [2008] SADC 45

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCDERMOTTROE
[2008] SADC 45
Decision of His Honour Chief Judge Worthington
23 April 2008
CRIMINAL LAW - EVIDENCE
Causing death by driving in a manner dangerous to the public - dispute of facts - blood alcohol content of defendant at time of collision - aggravating factor - unreliable evidence - onus of proof - finding: blood alcohol content at least 0.11%.
R v Payne (2004) 89 SASR 49; Anderson v The Queen (1993) 177 CLR 520, applied.

R v MCDERMOTTROE
[2008] SADC 45

The defendant, Edward Gerard McDermottroe, has pleaded guilty to causing the death of Robin Martin Duncan on Onkaparinga Valley Road, Woodside on 9 November 2004 by driving a motor vehicle in a manner which was dangerous to the public. However there is a dispute about the involvement of alcohol.
At about 8.15pm that day, Mr Duncan took his partner, Scott Bester, from Woodside, where they lived, to collect Mr Bester’s car from Gilbert Motors at Mt Barker. On the way, Mr Bester noticed that part of the dashboard lighting in Mr Duncan’s Holden Commodore station wagon was not working and so it was not possible to clearly read the speedometer. It was decided that on the return journey to Woodside Mr Duncan would follow Mr Bester who would set the pace according to the speed limit. Subsequent investigations have revealed that, because of a blown fuse, the tail lights on Mr Duncan’s station wagon were not operating. One headlight was not working either.
These two vehicles were travelling north along Onkaparinga Valley Road which has a general speed limit of 100kph, but there is an 80kph buffer zone just before the township of Woodside. The defendant was also driving north towards Woodside, coming up behind Mr Duncan’s vehicle. At a point about 400 metres inside the 80kph buffer zone, the defendant’s Mazda station wagon hit the rear of Mr Duncan’s Commodore. As a result, Mr Duncan’s vehicle rotated to the eastern side of the road and collided with a tree. Mr Duncan sustained multiple injuries. He survived the impact but died at the scene at about 9.45pm, at which time a paramedic declared life extinct.
The defendant’s vehicle went off to the western side of the road and collided with a tree which tore off the right front wheel. It then sideswiped another tree before coming to rest near the fenceline of a property owned by Mr and Mrs Cowling. The defendant suffered some abrasions and was conscious of a painful sternum. One or more of the air bags in his car had been activated and for some time he found it difficult to breathe. The precise time at which he was removed from the scene by ambulance is not before the court, but Dr Jarrod Koh states that he saw him in the Emergency Department of the Royal Adelaide Hospital at about 10.30pm. According to a statement by Bruce Cameron, in whose ambulance the defendant travelled, he was not removed from the scene until after Mr Duncan died. Therefore, having regard to when Mr Duncan was declared deceased and when Dr Koh saw the defendant at the Royal Adelaide Hospital, the most likely time at which the defendant was taken from the scene was shortly after 9.45pm. That means he was at the scene for about 50 minutes after the collision.
Based on the statement of Mr Bester, it is agreed by the parties that Mr Duncan’s vehicle was travelling at about 80kph at the time of the collision. Because of a number of variables, it is not possible to be precise about the speed of the defendant’s vehicle at the moment of impact, but based on the evidence of Senior Sergeant England of the Crash Reconstruction Unit, it is estimated that in round figures it was between 100kph and 150kph.
The defendant accepts that his speed was excessive and that he was driving dangerously. It is obviously a relevant matter that there were no tail lights working on Mr Duncan’s station wagon but there were rear reflectors, and on the material put before the court, that vehicle should have been detected by the driver of a following vehicle, even with its headlights on low beam, from significantly more than 60 metres away. There is no evidence of any braking. It is put that the defendant registered the presence of Mr Duncan’s vehicle but bearing in mind his speed, it was too late for him to take effective evasive action.
A blood sample was taken from the defendant at the Royal Adelaide Hospital at 10.30pm. Subsequent analysis revealed that the blood alcohol content of that sample was 0.242 gms of alcohol per 100ml of blood, i.e., 0.242%.
The primary case for the prosecution is that the defendant consumed alcohol until about 8.45pm and that he had no further alcohol before 10.30pm when the sample was taken. Relying on calculations by Mr R. J. Lokan, forensic scientist, it is put that on that basis, the defendant’s probable blood alcohol content at 9.00pm, the time of the collision, was about 0.22%, with a minimum unlikely to have been less than 0.20%. A variation of the Crown case is that the defendant also consumed two bottles of vodka mix between leaving Balhannah at about 8.45pm and the time of the collision. Relying on Mr Lokan’s evidence the prosecution asserts that on this scenario the defendant’s probable blood alcohol content at 9.00pm would have been about 0.21%, with a minimum unlikely to have been less than 0.19%.
In short the prosecution case is a blood alcohol content of about 0.20% at the time of impact. That is the issue in dispute. The defendant agrees that he had consumed alcohol that night and accepts that his blood alcohol content at the time of the collision may have been slightly higher than 0.05% (in the order of 0.06%) but not anywhere near the reading put forward by the Crown.
Excessive blood alcohol content is a factor that aggravates the offence of causing death by dangerous driving1 and it must therefore be proved by the prosecution beyond reasonable doubt2. For present purposes that means that for the Crown to establish a blood alcohol content in the order of 0.20% at the time of the collision, it must exclude any reasonable possibility that the defendant consumed alcohol between then and when he was taken from the scene in an ambulance about 50 minutes later.
1 R v Payne (2004) 89 SASR 49 at 67
2 Anderson v The Queen (1993) 177 CLR 520 per Deane, Toohey and Gaudron JJ at 536
In opening, Ms Wildman, counsel for the DPP, said that it is the Crown case that there was no opportunity for the defendant to have consumed any alcohol during that time; that there was someone with him from almost immediately after his vehicle came to rest until he was taken away by ambulance and that no witness attests to having seen him consume any alcohol at the scene. The person who was with him, and on whom the prosecution relies heavily, was John Colbey. I shall refer to his evidence shortly.
The defendant gave evidence. He said that he went to the Oakbank Hotel at about 5.30pm or 5.45pm and that he had consumed no alcohol that day until he had a schooner of pale ale at the hotel with one of his associates from work, Danielle Wlochowicz, and her friend, Katha McKie. A short time later they were joined by John Colbey. The two women did not remain at the hotel for long but the defendant and Mr Colbey had dinner there. The defendant’s evidence is that he had 4 schooners of pale ale and a nip of Jameson’s Whisky at the Oakbank Hotel and then he and Mr Colbey left to go to the Balhannah Hotel at about 8.30 – 8.45pm. He said they went there because Mr Colbey thought that the two women who had been with them at Oakbank might be there and he was keen to catch up with them.
They did not stay at the Balhannah Hotel for long; the women were not there. According to the defendant, they stayed for no more than about 15 minutes and in that time, he said in evidence in chief, he had one schooner of pale ale. In cross-examination he conceded that he may have had a nip of Jameson’s Whisky as well.
The defendant said that he did not want to have a late night because he was due to start work early the next morning. He said that Mr Colbey received a phone call while they were at the Balhannah Hotel from his boss telling him that he also would be starting work early. However, it was agreed that Mr Colbey would go to the defendant’s house for a while. The defendant said that Mr Colbey wanted to buy some vodka mix to take with him, either Smirnoffs or Vodka Cruisers, and that because Mr Colbey did not have any money, he bought a pack for him as they left the hotel. On the evidence of Anthony Paech, then the licensee of the Balhannah Hotel, I find that this pack, whether Smirnoff Black or Vodka Cruiser, was a pack of four with twist tops.
It is the defendant’s evidence that the car in which they travelled from Oakbank to Balhannah was Mr Colbey’s. He said that after leaving the Balhannah Hotel they returned to the carpark at the Oakbank Hotel in Mr Colbey’s car and that he, the defendant, then got into his own car to travel home to Woodside. The distance from Oakbank to the point of impact is just over 4 kms. The defendant said that he had nothing to drink between the time of leaving the Balhannah Hotel and the time of the collision.
The bar manager of the Oakbank Hotel, Susan Marsh, remembers serving both the defendant and Mr Colbey that night. In her statement she says that the defendant came in at about 5.45pm and ordered a beer. She served him a glass of Coopers pale ale. About 10 minutes later Mr Colbey came in and the defendant bought him a glass of beer, West End. She does not say what size the glasses were. She says that the defendant bought each of them another beer and they then ordered a meal. She remembers serving them two more beers each before they left. She makes no mention of Jameson’s Whisky.
Mr Paech remembers both of them coming into the front bar of the Balhannah Hotel and serving each of them a schooner of West End beer and a single shot of Jameson’s Whisky. He believes they were there for about 20 – 30 minutes. He heard Mr Colbey say that they were going back to the Oakbank Hotel.
Mr Colbey was called by the Crown and therefore appeared as a witness before the defendant. His evidence about whose car was used to go from Oakbank to Balhannah differs from the defendant’s. He said that they went in the defendant’s car. But it is common ground that they had each driven separately to the Oakbank Hotel in the first place and that one of their cars was still there in the carpark.
Mr Colbey’s evidence about drinks at the Oakbank Hotel and the Balhannah Hotel is a little different to the defendant’s evidence but not greatly at odds with it. He said at first that they met at lunch time but he must be mistaken about that. Other evidence indicates that the defendant got to the Oakbank Hotel at about 5.30pm and that Mr Colbey arrived shortly afterwards.
Mr Colbey said that when he arrived the defendant was in the company of two women and was part way through a schooner of pale ale. In short, Mr Colbey’s evidence is that they each had two schooners of beer, West End for him and pale ale for the defendant, and a Jameson’s Whisky during the meal. Mr Colbey said that he could not be sure if either he or the defendant had another beer after their meal at the Oakbank but that they went to the Balhannah Hotel in the defendant’s Mazda and that they each had a schooner of beer there. He thought that in all they were there for about 10 or 15 minutes and that they picked up a pack of vodka mix as they left through the bottle shop. He thought they were Smirnoffs.
Mr Colbey said that they went from the Balhannah Hotel to the carpark at the Oakbank Hotel so that he could collect his car and that it was intended that they would both go to the defendant’s house in Woodside. He said that they talked for about 10 minutes in the Oakbank carpark, that they did not drink anything and that he then went to his own car. By the time he was ready to enter Onkaparinga Valley Road, the defendant had gone. As he approached Woodside he became aware that something was wrong ahead of him on the road, he slowed and as he went past the scene of a collision he realised that the defendant’s Mazda was off to the left of the road. He stopped on the side of the road and ran back to the defendant’s car.
In his evidence in chief Mr Colbey said that when he got to the defendant’s car there were two or three people near the driver’s door. He said that the defendant was wheezing and complaining of chest pains. He said that there was a lot of what he at first thought was smoke but which turned out to be the contents of one or more of the airbags. He described how he pulled the defendant out through the front passenger’s door and sat him on the ground near that door. He said that the defendant could hardly breathe. He said that with the “smoke” he could hardly breathe himself. He sat next to the defendant trying to help him to breathe. He said the defendant was coughing and complaining about his chest.
In evidence in chief Mr Colbey was asked about the vodka mix bottles. He said that he saw them in the defendant’s car after the collision, two in the backseat, one on a front seat and one on the floor behind the front passenger seat. He did not notice whether they were empty or full but, he said, at the defendant’s request he threw them over the fence of the property owned by the Cowlings. It is a post and wire fence. Evidence was given by Mrs Cowling that when she went to inspect the fence at 8.30 – 9.00am the following day there were four bottles of vodka mix all together “in a clump” (Tx 102) virtually under the fence, as though they had been deliberately put there. She noticed that two were empty and were without tops, one was half full (she did not see a top on it) and one was full with the top still on it.
Mrs Cowling did not touch these bottles but she told police about them when she was interviewed about the crash on 3 December 2004. Senior Constable Hancock, who was present at that interview, went to look for them immediately afterwards but they were no longer there. It is not known what happened to them during that period of about a month. Mrs Cowling could not be sure whether the bottles were Cruisers or Smirnoffs; she just remembers the word “Vodka” on the label and that they were all of the same type. Given the evidence about the purchase of a pack of vodka mix bottles at the Balhannah Hotel and Mrs Cowling finding four bottles of that description near the fence adjacent to the position where the defendant’s car finally came to rest, it is reasonable to infer that the bottles found by Mrs Cowling were those that were bought by the defendant at the Balhannah Hotel.
There is no evidence to suggest that after the accident Mr Colbey got the bottles from his car; in fact he denied having done that. It is therefore reasonable to accept that the bottles found by Mrs Cowling were removed from the defendant’s car. Given the defendant’s condition immediately after the accident it is unlikely that he played any active part in that removal.
Regrettably, for reasons I will outline shortly, Mr Colbey was an unreliable witness. I therefore cannot accept at face value his evidence that the defendant asked him to remove the bottles from the car and that he then threw them over the fence. Although there is no reason to doubt that Mr Colbey was the person who removed those bottles from the defendant’s car, what the circumstances were I am unable to say. Mrs Cowling’s description of finding them in a clump together under the fenceline is not consistent with what Mr Colbey says he did with them. Indeed, whether he or someone else put them in the position they were found by Mrs Cowling it is not possible to say either, but nothing turns on that.
Both Mr Colbey and the defendant deny consuming any of the vodka mix from those bottles. However, based on Mrs Cowling’s evidence about the state of the bottles, it is the Crown’s submission that the defendant consumed the contents of two of those bottles, and possibly some part of a third, between the time they were purchased and the time of the collision. To enable that inference to be drawn the Crown must exclude any alternative hypothesis that is reasonably open.
For the reasons given already, I am satisfied that the four bottles were in the defendant’s vehicle rather than Mr Colbey’s. However, the defendant’s motor vehicle was involved in a series of violent collisions with at least three objects, first Mr Duncan’s station wagon and then two trees. The vodka mix drinks were carbonated and only had twist tops. Bearing in mind the forces applied to the bottles, it is quite possible that the caps could have been dislodged and contents lost. In those circumstances the Crown cannot make good that the only inference reasonably open is that the vodka mix was missing from those bottles because the defendant had consumed it.
Of more concern is evidence about a hip flask.
The defendant said in evidence that after the airbag went off he had severe chest pain and was incapable of breathing. He said that he was unconscious for a short time and woke up to a “heavy scent of plastic”. (Tx148). He described chips of plastic “like cornflakes” in the air and said that he had inhaled them while he was still in the car. He said that while he was sitting by the side of the car Mr Colbey offered him a drink and “once I drank something I was able to – it just cleared the throat and the mouth of any particles that were there”. (Tx149) He described the container he drank from as Mr Colbey’s hip flask. He said that Mr Colbey held it to his mouth. His evidence in chief continued (Tx150-151) as follows:
"QHow did it come that you drank from the hipflask.
AJohn gave it to me.
QHow did he do that.
AHe had it to my mouth.
QAre you able to say how much you drank.
ANo, definitely it was – I started – it cleared my system insofar as my mouth and throat and that and it did sort of – you know, just made it easier to breathe.
QAre you able to say how many swallows you had.
AThere was twice – twice he had it to my mouth. That’s as much as I recollect.
QDid any spill around your mouth as he was doing this.
AYes, some spilt down my shirt.
QYou have a recollection of him doing it twice.
AYes.
QCan you say for how long he held it to your lips each time.
AI don’t know, I was in severe pain.
QAre you able to say what it tasted like.
ADisgusting. It wasn’t Jamesons Whiskey, it was a spirit and it was strong and it was a shock to the system the first one.
QAnd the second one.
AIt wasn’t as bad.
QYou’ve said it was a hipflask. Can you describe it.
AI presume it was the one that he had at my house earlier in April and March and the one that he had – I didn’t really look at it on the night.
QLeaving what you assume or inferences you’ve drawn aside, when it was held to your lips could you feel whether it was a cold or a warm surface or anything like that.
AIt was a cold surface.
QWas it glass or metallic.
ANo.
QEither of those. Was it glass.
AI am not sure what it was, but it was a cold surface. There was a screw top on it.
QWith, what, ridges.
AYes.
HIS HONOUR. Don’t lead.
QWhat could you feel when it was on your lips.
AThere was a screw top on it.
QYou’ve said that he held it to your lips. It wasn’t something that you held; correct.
AI would be unable to hold it at that point.
QHow much of the flask were you able to see in John’s hand.
AVery little.
QWas there any light at that time.
ANo.

In cross-examination he said that he really did not know how long the container was held to his lips on each occasion. When it was suggested to him that it may have been only for a second or two he said that that was possible.
After the defendant was discharged from hospital later that night Mr Colbey took him home. With them was another friend of the defendant’s, Gerald James Cox. Mr Colbey made no mention at all during his evidence in chief of giving the defendant a drink from a hipflask, but in cross examination he was asked whether when taking him home he had said to the defendant, in the presence of Mr Cox, that he had saved his life and had given him his hipflask. Mr Colbey said that he could have but he really could not remember because it was so long ago. He was then asked whether after the collision he did in fact put a hipflask to the defendant’s mouth who drank from it and he replied (Tx 67):
ALike I said, I really can’t answer that because I don’t know.
QIt’s a definite possibility.
AIt’s a possibility. I was panicking, I was worried about Eddie. I could have done anything that night.
QMore likely than not.
ALike I said, I really can’t remember that.
There is adequate evidence to show that Mr Colbey owns a number of hipflasks. There is also evidence that he regularly carried one with vodka in it, that being a preferred drink of his. Normally, he said, he would keep it full. Two hipflasks were produced to the court but not one exactly fitting the description of the one that he said he was in the habit of having with him. He said that it was silver and had belonged to his grandfather. He could fit it into his inside jacket pocket or the pocket of his jeans.
The first flask produced to the court (P3) was glass with a leather cover. Mr Colbey said that P3 was bigger than the one in question. Because P3 is broken, its capacity could not be measured but is estimated at about 250mls. The second hipflask, a smaller silver one (P28) was produced after he had completed his evidence and thus he did not comment on it specifically. However, without going into detail, the evidence on this topic supports a strong inference that the hipflask in question was no bigger than P28 and may have been slightly smaller. P28 has a capacity of 200mls. It is fair to the defendant to regard the relevant hipflask as having had a maximum capacity of 200mls.
I cannot accept Mr Colbey’s evidence that he does not remember whether he gave the defendant a drink from the hipflask in the period immediately after the collision. Although, as he repeatedly reminded the court, it is now more than three years since this event, he was able to give detailed evidence about his own movements from the time he left his car and went to assist the defendant, what he observed when he got to the defendant’s car, the steps he took to remove the defendant from the vehicle, the steps he took to get the battery disconnected because of the risk of fire, the problems that the defendant complained of in relation to pain and difficulty in breathing, and not only finding and removing the four vodka mix bottles but where each of them was located within the car as he retrieved them. It is true that Mr Colbey’s memory was vague on some matters but in light of this evidence, it would defy common sense to accept that he has no memory at all of something as significant as whether during the same period he gave the defendant a drink from a hipflask containing a spirit.
Another area where I had a major concern about Mr Colbey’s honesty relates to what he says happened in relation to the vodka mix bottles after the accident. When Mr Colbey was first interviewed by Senior Constable Hancock on 25 November 2004 he referred to Vodka Cruisers being purchased at the Balhannah Hotel but made no further mention of them when speaking about helping the defendant from his car and staying with him after the crash. In light of Mrs Cowling’s statement about finding the bottles the following morning, Senior Constable Hancock was asked by the Office of the DPP to make further enquiries of Mr Colbey. He spoke to Mr Colbey by telephone on 28 August 2007 and in the course of conversation asked him whether there had been any drinking from Vodka Cruiser bottles while he was comforting the defendant after the crash. Mr Colbey replied that the incident was too long ago and that he could not remember anything about the incident or about drinking Vodka Cruisers. That is inconsistent with his evidence in court.
Mr Cox was called to give evidence. At the time of this incident he was living on the defendant’s property. He confirmed that he went with Mr Colbey to collect the defendant from the Royal Adelaide Hospital after he was discharged and that the three of them travelled back to Woodside in Mr Colbey’s car. It was his evidence that in the course of that journey Mr Colbey said that he had given the defendant a drink after the crash because of his concern about the defendant’s condition. However, he could not remember any more than that. He denied that he was inventing this evidence to assist the defendant.
The defendant’s evidence about the trip home is that Mr Colbey said something to the effect that the defendant was lucky to be alive. Mr Colbey told him, he said, that he was worried that the car might have been on fire, so he had pulled him out. At that point, he said, Mr Colbey picked up the hipflask, which was in the middle of the car in the front, tipped it upside down to show that it was empty and, as he did so, “laughed and used a flew expletives” (Tx168).
I am doubtful about the reliability of the defendant as a witness. At times his evidence was based on reconstruction rather than recollection. That in itself is not unusual given the time that has elapsed since the incident, but I also formed the opinion that he was not candid.
I refer to his evidence in chief, set out earlier, about drinking from the hipflask when Mr Colbey put it to his mouth. That evidence makes it clear that what he tasted was “disgusting” – he knew it was not Jameson’s Whisky, he said, but “it was a spirit and it was strong”. In cross-examination he confirmed that he meant that it was the drink itself that tasted disgusting. He was then asked some questions about whether he thought it was wise to be drinking an unknown substance when he was in pain and having trouble breathing. The effect of his answers is that it was not his idea to drink it; it was given to him and it seemed to help. He was then asked whether it had occurred to him while he was sitting on the side of the road that the police might want a blood alcohol sample (Tx197-198):
QAnd did it occur to you while you were sitting on the side of the road that if the police attended they might want to take a blood alcohol reading from you.
AIt never occurred to me, no. It was the last thing I was worried about.
QYou had been in the two different pubs earlier on that day, hadn’t you.
AYes.
QAnd you’d had at least six drinks.
AYes.
QMaybe more.
AYes.
QAnd it didn’t occur to you at that point that you had been in a serious accident, the police might come and they might want to take a blood alcohol reading.
AAt the time of taking the drink I did not realise it was alcohol.
HIS HONOUR
QThat’s not the question.
XXN
QDid it occur to you, while you were sitting on the side of the road, once the police arrived, that might be something that they would look into.
AIt didn’t occur to me, no.
QEven though you had been in the pub and had at least six drinks.
AYes.
QYou said you didn’t know what you were drinking was alcohol but you have said it didn’t taste very pleasant.
AYes.
QIt certainly wasn’t water.
ANo.
QIt was being given to you by Mr Colby.
AYes.
QMr Colby who you say used to carry a hipflask.
ACorrect.
QSo, it must have occurred to you that it could have been alcohol that you were drinking.
AI was in intense pain.
QSo you simply didn’t turn your mind to what it was.
AI did not at all.
Apart from obvious prevarication by the defendant, there is a clear contradiction between this evidence in cross examination that at the time of taking the drink he did not realise it was alcohol, indeed he did not even think about it, and his earlier evidence in chief when he went to some trouble to say that he knew that it was a spirit, which he recognised as not being Jameson’s Whisky, and that it was strong. The conclusion is inescapable that what he said about this during cross-examination was opportunistic and an attempt to bolster his assertion that he had no concern about whether he would be asked for a blood sample, notwithstanding that he had been drinking during the course of that night. This lack of candour is about a significant issue.
In the result, I am unable to accept either Mr Colbey or the defendant as reliable witnesses. However, as I have said, the onus of proof rests on the Crown. The defendant carries no onus. The defendant said that he was given alcohol from a hipflask by Mr Colbey while they were together after the collision and Mr Colbey conceded that as a possibility.
This presents the prosecution with a difficulty. The prosecution must exclude the possibility that the defendant consumed alcohol during the time between the crash and when he was put into the ambulance, if it is to succeed in establishing that he had a blood alcohol reading at the time of the collision in the order of 0.20%. To do that it has to rely heavily on Mr Colbey’s evidence. There was no one else who was with the defendant for all or most of that time. Not only did Mr Colbey not say that the defendant did not consume any alcohol during the period in question, he admitted the possibility that he may have. On the available evidence the prosecution has not discharged the obligation to exclude the possibility and therefore a finding of blood alcohol content in the order of 0.20% cannot be made.
I turn to what finding can be made about blood alcohol content.
There was debate in the course of submissions about whether the evidence in relation to alcohol and the reading that was obtained should be based on forward calculations or back calculations. Mr Lokan explained that forward calculations rely on evidence of what is said to have been consumed by the defendant and then calculating a likely blood alcohol content at the time of the collision, whereas back calculations rely on objective information: here, the known blood alcohol reading of 0.242%, and then by applying relevant considerations and formulae to that information, calculating a likely reading at the time of the collision. For the reasons I have given and despite limited support from Ms Marsh, Mr Paech and Ms Wlochowicz, I do not have sufficient confidence in either the defendant’s evidence or Mr Colbey’s evidence about what was consumed by the defendant to use it as a starting point for any calculations. I therefore propose to approach the matter on the basis of back calculations.
Mr Lokan was asked to make a number of calculations and estimates based on various assumptions. It is unnecessary to refer to them in detail; indeed many of them are no longer relevant as they are based on assumptions which have not been made good. On the evidence before the court there is an extant possibility that the defendant consumed alcohol after the accident, that it was neat vodka and that it came from a hipflask with a maximum capacity of about 200mls. Mr Lokan was asked to make some calculations based on an assumption that about 15 minutes after the collision the defendant consumed some neat vodka, which he agreed would have an alcoholic content of about 40%. He said that working back from a reading of 0.242% at 10.30pm, the most likely blood alcohol content at 9.00pm would have been about 0.11% if the defendant had consumed 200mls of vodka. He estimated that if the defendant had consumed 150mls of vodka the most probable blood alcohol content at 9.00pm would have been about 0.14%, and if he had consumed 100mls of vodka the most likely reading would have been about 0.17%.
As mentioned earlier it is fair to say that the hipflask described by Mr Colbey had a maximum capacity of 200mls. The description given by the defendant is of taking two swigs. The picture painted by the defendant in the course of cross-examination is that they may have been quite short, possibly only a matter of seconds, but, he says, he does not really know. According to him, some was spilt down his front. It is not known whether the hipflask was full in the first place.
With so many variables and two unsatisfactory witnesses, it is not possible to attempt a finding about the quantity of vodka that may have been consumed. The most that can be said is that it would have been less than 200mls. Having regard to the evidence of Mr Lokan, that would mean a likely blood alcohol reading at the time of the accident of at least 0.11% but it is not possible to be more specific.
According to the agreed evidence of Professor Jason White, the relevant effect on a driver of a blood alcohol content between 0.10% and 0.20% is that driving would be profoundly impaired and that there would be increased risk taking. As a matter of common sense it would follow that the extent of that effect would be greater as the blood alcohol content neared the top of the range. However, that evidence demonstrates that even with a reading of 0.11% the defendant’s capacity to drive safely would have been seriously impaired by alcohol.
For these reasons I find that the defendant had a blood alcohol content of at least 0.11% at the time of the collision.