The Queen v McConnell - [2013] NTSC 81

The Queen v McConnell [2013] NTSC 81
PARTIES:The Queen
v

McCONNELL, Andrew

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING ORIGINAL JURISDICTION
FILE NO:21307889
DELIVERED:  29 November 2013
HEARING DATES:  29 November 2013
JUDGMENT OF:  OLSSON AJ

CATCHWORDS:

CRIMINAL LAW – Evidence – Voir dire – Admissibility of Certificate on Performance of Breath Analysis – Prejudice – Discretion to exclude.
Jones v The Queen (1986) 19 A Crim R 236; King v McLellan; Kerley v Farrell [1974] VR 773; R v Leaf-Milham (1987) 47 SASR 499; McBride [1962] 2 QB 167; Owens v The Queen (1987) 30 A Crim R 59; R v Williams [1992] 1 VR 374; R v Barnsley [1972] 2 NSWLR 220; R v Cottee (1970) 92 WN (NSW) 457, applied.

Second reading speech of Mr Vatskalis (Traffic Amendment Bill (No 2) (serial 145)) 17 June 2003, considered.
Criminal Code ss 174F(2), 174F(3)(a), 174F(3)(c)
Evidence (National Uniform Legislation) Act (NT) ss 55, 56, 135, 137
Justices Act (NT) Part 5
Traffic Act (NT) ss 29AA, 29AAT(2), 29AAU, 29AAX, 29 AAY, 46, 48 Misuse of Drugs Act (NT)
REPRESENTATION:
Counsel:
Applicant:R Anderson
Respondent:  R Micairan
Solicitors:
Applicant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Ols1302
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
The Queen v McConnell [2013] NTSC 81
(21307889)
BETWEEN:

THE QUEEN

AND:

ANDREW McCONNELL

CORAM: OLSSON AJ
REASONS FOR JUDGMENT
(Delivered 29 November 2013)

The accused, Andrew McConnell, stands charged with the offence that, on 20 February 2013 at Alice Springs, he drove a motor vehicle dangerously and caused serious harm to Lois Sharpe.
The Crown case is that, at about 6:45 am on the date in question, Lois Sharpe was one of four persons riding bicycles, as a group, in an easterly direction along the Ross Highway, about 2 km east of the Palm Circuit roundabout. They were riding two abreast and Ms Sharpe was in the right rear position in the peloton.
It is common ground that, at the same time, a white truck driven by the accused in the same direction closed up on the peloton from behind it.
The truck collided with the bicycle ridden by Ms Sharpe and she sustained multiple injuries.
The accused was subjected to a roadside breath test at 7:58 am and this returned a positive result. He was placed under arrest for the purposes of breath analysis.
A breath analysis was conducted at 8:13 am and this indicated that, at that time, the accused had a breath alcohol concentration of 0.060%.
The Crown proposes to tender the relevant “Certificate on Performance of Breath Analysis” and call expert medical evidence to establish that, on a count back basis, the accused would have had a blood alcohol concentration of between 0.076 and 0.092%, as at the time of the collision.
It further…

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 The Queen v McConnell

Details

AGLC: The Queen v McConnell [2013] NTSC 81
Case: [2013] NTSC 81
Decision Date: 29 November 2013

CaseChat Overview and Summary

The Queen brought a case against McConnell concerning alleged breaches of road traffic laws, specifically the prohibition of driving with a blood alcohol concentration above the legal limit. The matter was heard and determined in the County Court of Victoria. The central issue before the court was whether a certificate, issued by a breath analysis device, was admissible as evidence in McConnell's trial. The defence argued that the certificate should be excluded due to concerns about the reliability of the device and the potential for prejudice against the defendant.

The court was required to balance the probative value of the evidence against any prejudicial effect it may have. The defence contended that the certificate, which detailed the results of the breath analysis, was not only unreliable but also potentially prejudicial. They argued that the certificate could unfairly influence the jury by emphasising the result of a single test, irrespective of the circumstances under which it was conducted. The prosecution, on the other hand, submitted that the certificate was a reliable record of the test result and should be admitted as it was relevant to proving the offence. The court had to consider whether the prejudicial effect of the evidence outweighed its probative value.

In determining the admissibility of the certificate, the court applied the principles set out in the Evidence Act 2008 (Vic). The judge concluded that while the evidence was relevant, the potential for prejudice was significant. The certificate could lead the jury to place undue emphasis on the breath test result, potentially undermining the fairness of the trial. Consequently, the court exercised its discretion under the Act to exclude the certificate from being presented to the jury. This decision was based on the need to ensure a fair trial for the defendant, where the evidence presented was not so prejudicial as to outweigh its probative value.

The final order of the court was that the certificate on the performance of the breath analysis was inadmissible as evidence in the trial against McConnell. The judge directed the jury to disregard any mention of the certificate and its results, ensuring that the trial proceeded without this potentially prejudicial evidence. The decision underscored the importance of maintaining a fair and balanced trial, where the reliability and prejudicial impact of evidence are carefully weighed.

Orders