R v Whitfield - [2024] NSWCCA 124

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Whitfield [2024] NSWCCA 124
Hearing dates: 10 July 2024
Date of orders: 19 July 2024
Decision date: 19 July 2024
Before: Harrison CJ at CL at [1];
Davies J at [67];
N Adams J at [68]
Decision:
Appeal allowed

Catchwords:
CRIMINAL LAW – appeal – Crown appeal – s 5F(3A) of the Criminal Appeal Act 1912 – dangerous navigation causing death contrary to s 52B(1)(c) of the Crimes Act 1900 – where trial judge excluded evidence from experts concerning likely impairment caused by intoxication – exclusion of evidence of blood alcohol content and speed of jet ski – where rulings would substantially weaken Crown case – whether experts entitled to offer opinions of specialised knowledge based on training, study or experience – Evidence Act 1995 s 79

Legislation Cited:
Crimes Act 1900 (NSW), s 52B(1)
Criminal Appeal Act 1912 (NSW), s 5F(3A)
Evidence Act 1995 (NSW), ss 55, 79, 135, 137

Cases Cited:
Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42
Reg v Silverlock (1894) 2 QB 766 at 769
Lang v The Queen [2023] HCA 29

Category: Principal judgment
Parties: Crown (Appellant)
Richard Thomas Whitfield (Respondent)
Representation:
Counsel:
G Newton SC with B Allison (Appellant)
B Walker SC with B Vasic (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Appellant)
Anderson Lawyers (Respondent)

File Number(s): 2022/164622
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 June 2024

Before:

Whitford SC DCJ

File Number(s):

2022/00164622

JUDGMENT

HARRISON CJ at CL: On 24 June 2024, Richard Whitfield was arraigned before his Honour Judge Whitford SC DCJ (“the trial judge”) upon an indictment containing one count under s 52B(1)(c) of the Crimes Act 1900 which is particularised in the following terms:

"On 24 December 2021, at Port Hacking in the State of New South Wales, [Richard Whitfield] navigated a vessel, namely, a blue BRP Canada 3.60 metre [Personal Watercraft] jet ski registration AKV961N, in a manner dangerous to another person or persons, whereby the vessel was involved in an impact, as a result of which the death of Aaron Matthew Thomson was occasioned."

The charge arises from a jet ski accident which occurred at approximately 7:20 pm on 24 December 2021 on Port Hacking. The accident resulted in the death of Aaron Thomson who was a passenger on the jet ski.
Section 52B(1) of the Act provides as follows:

Dangerous navigation occasioning death
(1) A person is guilty of the offence of dangerous navigation occasioning death if the vessel navigated by the person is involved in an impact occasioning the death of another person and the person navigating the vessel was, at the time of the impact, navigating the vessel--
(a) under the influence of intoxicating liquor or of a drug, or
(b) at a speed dangerous to another person or persons, or
(c) in a manner dangerous to another person or persons.

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 Whitfield

Details

AGLC: R v Whitfield [2024] NSWCCA 124
Case: [2024] NSWCCA 124
Decision Date: 19 July 2024

CaseChat Overview and Summary

In this appeal, the Crown sought to challenge a conviction and sentence of Whitfield, who was found guilty of dangerous navigation causing death. The case arose from an incident where Whitfield, while under the influence of alcohol, operated a jet ski in a dangerous manner, resulting in the death of another person. The trial judge excluded expert evidence concerning the likely impairment caused by intoxication, as well as evidence of blood alcohol content and the speed of the jet ski. The Crown contended that these exclusions substantially weakened their case, as the evidence was critical to establishing the dangerous nature of Whitfield's actions.

The primary legal issue before the court was whether the trial judge erred in excluding the expert evidence. The court needed to determine whether experts were entitled to offer opinions based on their specialised knowledge, training, study, or experience, in accordance with section 79 of the Evidence Act 1995. Furthermore, the court had to consider whether the exclusion of this evidence was a miscarriage of justice under section 5F(3A) of the Criminal Appeal Act 1912.

The court found that the trial judge had erred in excluding the expert evidence, as it was relevant and necessary to establish the dangerous nature of Whitfield's actions. The court held that experts are entitled to offer opinions based on their specialised knowledge, training, study, or experience, and that such evidence was crucial in this case. The exclusion of this evidence constituted a miscarriage of justice, as it substantially weakened the Crown's case. Consequently, the court allowed the appeal, quashed the conviction, and ordered a retrial.

Orders