R v Wells

Case [2017] SASCFC 6

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WELLS

[2017] SASCFC 6

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Lovell)

13 February 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA

Application for permission to appeal against conviction.

The applicant was found guilty by a District Court Judge sitting alone of aggravated causing harm by dangerous driving.

The applicant’s vehicle veered off Sturt Highway onto the grass verge and collided with the driver of a parked utility, who suffered serious injuries as a result. Based on a blood sample taken after the collision, the applicant had about 0.66 milligrams per litre of methylamphetamine in his blood at the time of the collision.

The principal issue at trial was voluntariness. The prosecution case was that the applicant’s use of methylamphetamine was the cause of the collision. The respondent’s case was that there was a reasonable doubt that he suffered an episode of complex partial seizure (CPS) which was the cause of the collision.

The prosecution called as eye witnesses the victim, his passenger and Mrs Robertson who arrived at the scene of the collision soon after it occurred. Mrs Robertson gave evidence that the applicant told her that before the collision he had seen a man near the back of the car.

After the collision, the applicant attended on a general physician, Dr Marantos, who diagnosed him as suffering from complex partial seizures and expressed the opinion that it was possible that he suffered a CPS immediately before the collision. The applicant called Dr Marantos to give evidence. The applicant called his son who gave evidence of observations of his father losing consciousness momentarily on several occasions before the collision. The applicant gave evidence that he had not used methylamphetamine for several months before the collision and also that he had no recollection of the events on the day of the collision after being at work in the morning.

The trial Judge rejected the applicant’s evidence. The trial Judge considered that Dr Marantos’ opinion was largely vitiated by the false history provided by the applicant and by Dr Marantos’ lack of knowledge of the effects of methylamphetamine. The trial Judge was satisfied beyond reasonable doubt that the applicant did not suffer an episode of CPS immediately before the collision and that the cause of the collision was his use of methylamphetamine.

Held by Blue J, Kourakis CJ and Lovell J agreeing (dismissing the appeal):

1.  The Judge did not err in her Honour’s treatment of Dr Marantos’ opinion evidence and in particular the Judge did not err:

(a) in her Honour’s assessment of…

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R v Wells [2017] SASCFC 6
Case
[2017] SASCFC 6
Decision Date

CaseChat Overview and Summary

The applicant, who had a history of methylamphetamine use, sought leave to appeal against a guilty verdict for a driving offence causing death or bodily harm. The central dispute revolved around the cause of the applicant's vehicle veering off the road and colliding with a guard rail. The applicant contended that he may have suffered from a Complex Partial Seizure (CPS) shortly before the collision, which would render his driving involuntary. The prosecution argued that the collision was caused by the applicant's methylamphetamine consumption. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The legal issues before the court included whether the trial judge erred in rejecting the applicant's defence of involuntary driving due to CPS. Specifically, the court considered whether the judge was entitled to disregard the opinion of Dr. Marantos, who suggested CPS as a possible cause, based on the applicant's dishonesty regarding his drug use, the lack of diagnostic tests for CPS, and Dr. Marantos' limited understanding of methylamphetamine's effects. The court also had to determine if the judge erred in dismissing other grounds of appeal relating to the assessment of evidence concerning the applicant's observations, the diagnosis of CPS, and the applicant's account of events. Ultimately, the court had to decide if the verdict of guilty was unreasonable or unsupported by the evidence.

The Full Court reasoned that the trial judge was entitled to weigh all the evidence holistically. The judge found that the applicant had consumed a significant quantity of methylamphetamine, and accepted expert evidence that such use could lead to a loss of concentration and veering off the road. While the judge did not definitively rule out CPS as a cause, it was considered a "bare possibility" given the applicant's misleading statements to Dr. Marantos about his drug use and recollection of events, and Dr. Marantos' lack of expertise in the effects of methylamphetamine. The judge also accepted evidence that the applicant was conscious when his vehicle was veering, and his account to Ms. Robertson did not mention a loss of consciousness. Therefore, the court concluded that it was open to the judge to be satisfied beyond reasonable doubt that the collision was not caused by a CPS.

The Full Court granted permission to appeal but dismissed the appeal. The court found that the grounds of appeal were not established and that the verdict was reasonable and capable of being supported by the evidence.

Orders

Orders of the court

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Background

Background to the litigation

The applicant seeks permission to appeal on six grounds:1.Where there was no expert evidence in the field of CPS or complex medical diagnosis to contradict Dr Marantos’ opinion that a CPS was possibly the cause of the driving, it was an error to find that Dr Marantos’ opinion should not be relied upon on the basis that:(a) the accused was dishonest to Dr Marantos, most notably in regard to his methylamphetamine consumption; (b) there are no tests to support CPS diagnosis; and(c) Dr Marantos had a very limited understanding of the effects of methylamphetamine.2.It was an error to treat Matthew Wells’ observations of his father as unsupportive of Dr Marantos’ opinion.3.It was an error, in assessing Dr Marantos’ diagnosis, to focus only on the aspects of it that related to the cause of the falling asleep to the exclusion of the other matters relevant to reaching the diagnosis.4.It was an error to reject CPS as a possible cause of the driving because evidence of the accused was not accepted that:(a) he had not relapsed into methylamphetamine consumption prior to the collision, such that he was a regular and significant user of methylamphetamine by 23 March 2013; and(b) his last memory on the day of the collision was working the tipper and that he had no recollection about the day before or after.5.It was an error to reject CPS as a possible cause of the driving on the basis that a statement was made by the accused to Ms Robertson to the effect that he had seen a man “behind the car and, as he was coming up he seen him coming around the side”. The evidence was not sufficiently clear or reliable to be satisfied that, at the relevant time, the accused “had to be conscious”.6.The verdict of not guilty was unreasonable and not capable of being supported by the evidence.Background The applicant commenced using methylamphetamine at the age of 17. In 2005, following a motor bike collision, he increased his usage to two or three points (0.1 of a gram) on a daily basis. From that time (if not earlier), he usually injected it. The applicant gave evidence that in 2009 he stopped using methylamphetamine because of concerns raised with him by his sons. He gave evidence that he only used it on two occasions after that time, once in around 2011 and once in the first half of 2012. This evidence was contested by the prosecution, who contended that the applicant was still a regular user of methylamphetamine leading up to the March 2013 collision. In February-March 2013, the applicant was living with his mother at her house in Para Hills. He was 52 years old. He was a welder/sheet metal worker. In late February 2013, he commenced employment at Nuriootpa repairing and welding tipper trailers. His working hours were from 8.30 or 9.00 am until 4.30 or 5.00 pm on Monday to Friday. On occasions he was asked to work on Saturday mornings. He travelled to and from work on each day that he worked. On 25 February 2013, on the way home from work at Nuriootpa, the applicant entered the Sturt Highway on-ramp from Greenock Road and collided with the guard rail.

Evidence

Evidence Before The Court

This ground of appeal is not established.Verdict unreasonable and cannot be supported having regard to evidence Ground 6 is that the verdict of guilty is unreasonable and not capable of being supported by the evidence. The applicant principally relies for this ground on his contention that the Judge erred in one or more of the ways identified in grounds 1 to 5. This contention fails because the applicant has failed on each of those grounds. As noted above, the prosecution case on the issue of voluntariness was necessarily a circumstantial case and there was no direct evidence adduced by the applicant on that issue because his evidence (albeit rejected by the Judge) was that he had no recollection of events on that day after being at work. The Judge was required to consider all of the individual matters and then to consider them holistically to determine whether the prosecution had proved beyond reasonable doubt that the collision was caused by the applicant’s use of methylamphetamine and was not caused by the applicant’s suffering a CPS shortly before the collision. The Judge accepted the evidence of Professor White that a person who uses methylamphetamine in sufficient quantity to have a blood methylamphetamine reading in the vicinity of 0.66 milligrams per litre is liable to lose concentration on driving and veer off the road for no rational reason. On the Judge’s finding, which is not challenged, the applicant had consumed a relatively high quantity of methylamphetamine before driving. The Judge was not satisfied that the applicant was in March 2013 suffering from CPS, although the Judge stopped short of finding beyond reasonable doubt that this was so. In light of the Judge’s finding about the evidence given by Matthew Wells, which for the reasons given above was open to the Judge, and the Judge’s finding that Dr Marantos was misled by the applicant about his regular methylamphetamine use and his recollection of the events on 23 March 2013 and Dr Marantos’ lack of familiarity with the effects of methylamphetamine, which for the reasons given above were also open to the Judge, it was little more than a bare possibility that this was so. The possibility, as opposed to a probability or satisfaction, that the applicant was suffering from CPS was to be weighed in the balance with all of the other evidence relevant to the issue of voluntariness. The Judge accepted the evidence of Ms Robertson and Mr Plarinos which in conjunction demonstrated that the applicant was conscious at a point when he was veering off the road. The applicant’s account to Ms Robertson did not include any reference to a loss of consciousness. Having reviewed all of the evidence in light of the Judge’s specific findings, it was open to the Judge to be satisfied beyond reasonable doubt that the collision was not caused by the applicant’s suffering a CPS shortly before the collision. The applicant contends that, while methylamphetamine may provide a possible explanation for the veering, there is no evidence of any other behaviour indicated by methylamphetamine intoxication as described by Professor White and Dr Robertson which requires explanation if CPS is accepted as a reasonably possible cause for the driving. However, no witness observed the applicant on 23 March 2013 before the collision and the mere absence of evidence of any other symptoms of consumption of methylamphetamine is of no significance.

Decision

Reasons for decision

This ground of appeal is not established.Conclusion I would grant permission to appeal but would dismiss the appeal. LOVELL J: I agree with Blue J.

Ratio Decidendi

Legal Principle Established

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