HAOUI v Regina [2008] NSWCCA 209 | Case summary

HAOUI v Regina [2008] NSWCCA 209 | Case summary | Zoe

[35]

The facts 4 The Crown case was that on 13 May 2003 at about 5 pm, Abdali Khanafer drove a white Toyota utility (the utility) out from the driveway of premises in Frederick Street, Rockdale, with the intention of making a right-hand turn into that street. Frederick Street Rockdale runs in a generally north/south direction. It is straight and level for about 200-300 m in either direction and has a bitumen surface in good condition. On the day of the collision, it had been raining and the road was wet. Conditions were overcast, but it was still light. 5 Mr Khanafer saw a vehicle to his right, travelling along Frederick Street in a southerly direction. This vehicle was a Honda Civic driven by the appellant. Mr Khanafer considered that the Honda Civic was at a sufficient distance for him to safely proceed out onto the roadway and he began to make a turn onto Frederick Street, intending to proceed north. However, before completing the turn, his utility was struck in the rear by the Honda Civic, causing it to spin. 6 The utility came to rest facing in a south-westerly direction at a 45 degree angle to the western kerb alignment, with the front of the utility extending up onto the driveway on the western side of the road. The Honda Civic came to rest about 22 m south of the utility, facing in a northerly direction. The Honda Civic had crashed into a vehicle parked on the southbound (eastern) side of the roadway and at the point of rest, the driver's side was in contact with the parked car. 7 It was the Crown case that the appellant was travelling at 91 km per hour at the point of impact. The speed limit was 50 km per hour. 8 A passenger in the utility suffered a sub-conjunctival haemorrhage of the right eye and a depressed right cheek fracture with bony deformity in the collision. He required surgery to elevate the bony fragment and a titanium plate, about 3 cm long, 4 mm wide and 1.2 mm high, was inserted to stabilise the fracture. This injury was said to constitute the element of "grievous bodily harm" for the purposes of the offence under s 52A(3)(b) with which the appellant was charged. 9 The appellant's case was that he was driving at 50 km per hour and that as he drove along Frederick Street he saw a white utility parked in a bus zone on the left hand side of the road. The utility pulled out and did a U-turn in front of him. He said that he braked, but slid into the side of the utility at the rear. The appellant did not give evidence, but this version of events was contained in an ERISP recorded on 2 June 2003. The appellant stated that he was travelling at 50 km per hour prior to the collision. The appellant had a passenger in the car with him who gave evidence in the Crown case supporting the appellant's account of the collision.

[37]

Was Sergeant Kelly's evidence adduced in such a way as to be unfair to the appellant? · service of reports 12 Sergeant Kelly gave oral evidence at the trial. The 'content' of his evidence, however, was provided to the appellant's legal representatives in four written reports, in the circumstances that are examined below. 13 Sergeant Kelly's first report was dated 14 February 2003 and was served prior to the committal hearing, which took place on or about 24 June 2004. The charges against the appellant were dismissed at the committal but subsequently, an ex officio indictment was filed. 14 The appellant's trial was set to commence on 16 May 2005, but was adjourned, as a number of witnesses were overseas. 15 The second report was dated 1 July 2005. It is not clear when this report was served, other than that it was served prior to the appellant's trial, which was set down to commence on 29 January 2007 and which formally commenced on 30 January. At trial, the first and second reports were admitted as Exhibit B on the voir dire, although no voir dire examination was conducted at that time. 16 Over the succeeding days, the Crown called the evidence of its lay witnesses, the police officer who attended the scene of the accident and the investigating police officer, Senior Constable West, of the Metropolitan Crash Investigation Unit. This evidence was completed by the morning of Friday 2 February 2007. At that stage, the Crown conceded there was no evidence of speed capable of establishing 'dangerous driving' for the purposes of the offence under s 52A(3)(b) and that without the evidence of Sergeant Kelly, there was no case to go to the jury. 17 The third report was dated 1 February 2007. It appears that the Crown had, at some stage, indicated to the appellant's legal representatives that Sergeant Kelly would give evidence additional to that contained in his first and second reports. Accordingly, pursuant to "a request" for a statement outlining the new evidence, the Crown Prosecutor had asked Sergeant Kelly to provide a further report. 18 The third report was tendered on 2 February and admitted without objection as Exhibit F on the voir dire. Senior counsel for the appellant informed the trial judge that he had not had an opportunity to read the third report and was not in a position to deal with it. He stated that the report contained material of a technical and specialist nature and there was also material relating to an apparatus that Sergeant Kelly had used to measure the coefficient of friction. 19 The trial judge adjourned the proceedings for a short period of time to enable the appellant's legal representatives to read the third report and to allow them to assess whether they would be in a position to proceed that day with a voir dire examination of Sergeant Kelly, or whether the trial should be stood over until the following Monday, 5 February 2007. 20 In the result, the matter was stood over until Monday 5 February and the trial judge directed senior counsel for the appellant to prepare a "list of the legal reasons" upon which the appellant would contend that Sergeant Kelly's evidence was not admissible. However, before adjourning for the day, his Honour raised a number of questions relating to Sergeant Kelly's first, second and third reports. I will return to his Honour's concerns later in my judgment. 21 On Sunday 4 February 2007, a fourth report was emailed to junior counsel for the appellant at 4.05 pm, but was not read by him until approximately 8 pm that night. The fourth report did not come to the attention of senior counsel for the appellant until the following morning, that is, Monday 5 February. 22 On the resumption of the hearing on the morning of 5 February 2007, the Crown Prosecutor informed the Court that Sergeant Kelly's fourth report combined the material in the previous reports and some new material which was to be found under the heading, "Post Impact Velocity". The fourth report was admitted as Exhibit G on the voir dire. 23 It was then intended that Sergeant Kelly would be examined on the voir dire. At this point, senior counsel for the appellant reiterated his complaints as to the admissibility of the reports, submitting that this was even more apparent when regard was had to the contents of the fourth report. Senior counsel further submitted to the trial judge that there was also a question as to whether the new material in the fourth report should be allowed into evidence, given the late stage of the proceedings at which the appellant had been served with this new material. 24 The voir dire examination was allowed to proceed. At its conclusion, the trial judge heard submissions as to the admissibility of Sergeant Kelly's evidence. His Honour ruled that the material in the fourth report was admissible and informed the parties that he would give reasons later. His Honour indicated that he would also permit the Crown to ask further questions of Sergeant Kelly on two particular matters agitated during the course of the voir dire. The first matter related to what the situation would be if the utility was at right angles to the roadway rather than at an angle of 235 degrees at the time of impact. The angle of 235 degrees was the angle upon which Sergeant Kelly had based his conclusions for the purposes of determining the speed of the appellant's vehicle at the point of impact. The second matter related to the effect of the wear to the tread on the shoulders of the front tyres. His Honour further ruled that he would not limit the use to which the evidence could be put pursuant to s 136 of the Evidence Act 1995. · application to discharge the jury 25 Sergeant Kelly commenced giving his evidence before the jury at about 12.30 pm. Approximately half an hour into his evidence, senior counsel for the appellant applied for the discharge of the jury. Senior counsel submitted that forensic decisions as to the conduct of the trial had been made on the basis of the material in the reports served up until the commencement of the trial. However, Sergeant Kelly's evidence had continued to evolve to such an extent that there was irremediable prejudice to the appellant that was incapable of being cured by an adjournment. 26 Senior counsel identified three specific aspects of Sergeant Kelly's evidence to demonstrate prejudice. 27 The first related to the angle of impact of the vehicles. Sergeant Kelly had stated in his report that the angle of the utility relating to the Honda Civic at the time of impact was 235 degrees. The appellant had not sought to cross-examine any witness to establish with precision the position of the vehicles at the point of impact, nor had the Crown adduced any evidence on this question. The forensic consequence was that one of the assumptions upon which Sergeant Kelly had based his calculation had not been established. However, if Sergeant Kelly was now to be permitted to give evidence on the basis of an angle of impact of 90 degrees (being the angle at which the appellant contended he had collided with the other vehicle), one of the forensic planks upon which the appellant had proposed to challenge Sergeant Kelly's evidence had been removed. 28 The second aspect was that in his reports, Sergeant Kelly had assumed a post-impact deceleration speed but had not stated the hypothesis upon which he had based his assumption. Again, as a matter of forensic choice, senior counsel for the appellant had not cross-examined any witnesses as to the movement of the vehicles post-impact. 29 The third aspect related to Sergeant Kelly's assumption that there had been a uniform distribution of weight in the vehicle and no evidence was adduced in the Crown case in relation to that question. 30 Senior counsel for the appellant submitted that it would be unfair to the appellant for the Crown witnesses to be recalled for cross-examination on these matters. Senior counsel contended that if that course was permitted, there would be a reversal of the onus of proof, and the appellant would have to "fill [the] holes" in the Crown case, as the Crown had adduced evidence from Sergeant Kelly in respect of which the underlying factual basis had not been established. 31 Alternatively, if the Crown witnesses were not recalled, the jury would be left with Sergeant Kelly's ultimate conclusion as to speed, without there having been any attempt to establish the assumptions upon which that opinion was based. The implication in this submission was that the jury may not understand or accept that the factual foundation for Sergeant Kelly's evidence had not been properly laid. Alternatively, they might simply ignore that matter. 32 The trial judge dismissed the application. His Honour accepted that Sergeant Kelly's evidence had been made available to the appellant in an unsatisfactory manner. He also accepted that the content of the early reports was unsatisfactory. However, his Honour considered there were a number of ways in which the prejudice of which the appellant complained could be overcome. 33 First, his Honour was prepared to grant a short adjournment for the purpose of enabling the appellant's legal representatives to consider how best to respond to Sergeant Kelly's evidence, including whether they could obtain their own expert evidence to meet Sergeant Kelly's evidence. Alternatively, his Honour considered that witnesses could be recalled, so that senior counsel for the appellant could cross-examine on those matters upon which he had earlier made a decision not to cross-examine. His Honour noted that he could give appropriate directions to the jury as to why this course had been taken, if that was to occur. 34 His Honour concluded that the fact that the trial was almost complete was an important factor in deciding what the interests of justice required. His Honour determined that despite the imperfections, both in the manner in which Sergeant Kelly's evidence had been provided to the appellant and the deficiencies in the content of that evidence, he was satisfied that the appellant could get a fair trial and it was not in the interests of justice that the jury be discharged. The application was thus dismissed. 35 The appellant did not seek leave to appeal from that decision, either on an interlocutory basis, or on this appeal. However, he relies upon the fact that his Honour refused the application and permitted the trial to proceed as part of the circumstances that established the trial was conducted in a manner that was unfair to the appellant. It should be noted, however, that at trial the appellant did not take up any of the matters 'offered' by his Honour to remedy the prejudice. Accordingly, the matter proceeded without any adjournment, and without the Crown witnesses being recalled for further cross-examination. 36 Sergeant Kelly's evidence concluded on 6 February and the jury returned its verdict of guilty on 7 February. The appellant was sentenced by his Honour on 20 April 2007. On the same date, his Honour gave his reasons for his ruling on the voir dire that Sergeant Kelly's evidence was admissible. · the trial judge's ruling on the admissibility of Sergeant Kelly's evidence 37 His Honour noted at the beginning of his judgment on the admissibility of Sergeant Kelly's evidence that it was the only evidence the Crown had tendered to establish the speed at which the appellant was travelling. His Honour then dealt with the various complaints that had formed the basis of the appellant's application that Sergeant Kelly's evidence not be admitted. The first complaint related to the circumstances in which the evidence had been served upon the appellant, together with the inherent deficiencies in the evidence as it stood prior to trial. His Honour acknowledged both of those matters and commented that this was "hardly a commendable state of affairs". However, he observed that was not the matter in issue. Rather, the matter in issue was the admissibility of the evidence. 38 His Honour next observed that the appellant's application had been made under s 137 of the Evidence Act. That section provides that evidence must not be adduced if its probative value is outweighed by its prejudicial effect. His Honour doubted whether s 137 was the appropriate basis for the challenge being made to Sergeant Kelly's evidence, but nonetheless proceeded to determine the matter in accordance with the terms of the section. 39 His Honour concluded that when the entirety of Sergeant Kelly's evidence was considered, the basis of his ultimate conclusion as to the speed of the vehicle became apparent. In particular, his Honour considered that Sergeant Kelly had explained why he had chosen the particular values upon which he had based his calculations to determine the speed the appellant's vehicle was travelling at the point of impact. His Honour also considered that Sergeant Kelly had provided evidence to demonstrate that the equations used in the first report had general acceptance in the relevant field of expertise. This was presumably a reference to Sergeant Kelly's evidence that Fricke's manual was a textbook dedicated to traffic accident reconstruction, well-known in the field of crash investigation and reconstruction across the world, including in the United States and Australia. Although his Honour did not state it in express terms, it followed from his conclusion that he considered the evidence had probative value. 40 His Honour then turned to the consideration of prejudicial value. First, his Honour concluded that the forensic difficulties of which senior counsel for the appellant complained could be overcome by an adjournment, or by recalling witnesses together with the giving of appropriate directions to the jury. His Honour then dealt with the particular aspects of the submission made by senior counsel for the appellant as to the deficiencies in Sergeant Kelly's evidence. 41 Sergeant Kelly had given evidence that in order to calculate the speed at which the appellant was travelling at the time of collision, four matters needed to be established: (a) the angle at which the vehicles collided; (b) their post-impact angle of travel; (c) the distance travelled after impact; and (d) the coefficient of friction of their respective vehicles on the roadway. His Honour considered that the manner in which Sergeant Kelly had ascertained each of those matters had been fully explained in his evidence. 42 His Honour also found that Sergeant Kelly had explained why he had used a particular equation to calculate the appellant's pre-impact speed. Sergeant Kelly said the equation was one well-recognised in textbooks devoted to the analysis of motor vehicle collisions. Using that equation, Sergeant Kelly had concluded that the appellant was travelling 91 km per hour. His Honour concluded, therefore, that Sergeant Kelly had been able to demonstrate the validity of the mathematical values he had chosen, as well as the general acceptance of the equations to which those values were the necessary inputs, in order to calculate the speed of the appellant's vehicle. 43 His Honour also rejected the appellant's challenge to Sergeant Kelly's expertise. His Honour thereby confirmed his ruling, given on 5 February, that Sergeant Kelly's evidence was admissible. As previously mentioned, his Honour also rejected the appellant's alternative application under s 136.

[38]

Arguments on the appeal 44 The appellant essentially raised the same arguments on the appeal to establish he was prejudiced by the manner in which Sergeant Kelly's evidence was provided to him, as he had argued on the admissibility application and the application to discharge the jury. Pursuant to a direction of the Court, the appellant's legal representatives have provided an analysis of the manner in which the evidence of Sergeant Kelly evolved before and during trial and an identification of the basis upon which it is claimed that the appellant was thereby prejudiced. 45 The appellant approached this task by reference to the following five specific areas of Sergeant Kelly's evidence: (1) reliance upon the methodology of Fricke; (2) the coefficient of friction; (3) the angle of impact and departure of the two vehicles; (4) the shift in opinion evidence introduced as to the effect of the utility undertaking a U-turn in front of the appellant's vehicle; and (5) the condition of the tyres of the appellant's vehicle. Much of what is set out below is taken directly from those further submissions, with additional material taken from Sergeant Kelly's reports where that has been considered necessary. The matter has been approached in some detail in order to assess whether there is any substance in the appellant's claim. · reliance on Fricke's methodology 46 The particular complaint in relation to Sergeant's Kelly reliance on Fricke's methodology was part of a more general complaint relating to the various calculations and analyses he had undertaken to determine the appellant's pre-impact speed. 47 In his first report, Sergeant Kelly specified the methodology he had used to produce the analytical data upon which he based his opinion as to speed. In the section headed, "METHODOLOGY" (para 2 of the report), he stated that the analytical data had been produced "through applying Newtonian physics of linear motion and the conservation of momentum theory". The report then identified the following material as having been relied upon for this analysis: · Automotive Handbook 5th ed, 2000; · Fundamentals of Vehicle Dynamics, Thomas Gillespie; · The Automotive Chassis, 2nd ed, Rempell; · Accident Reconstruction, 2002, (research papers from Society of Automotive Engineers (International)); · brake meter testing (ABS and non-ABS) at Goulburn Police College, November 2001; · witness statements; · the appellant's ERISP interview; · 34 colour crime scene photographs of the collision scene; and · a 1:200 scale plan of the collision scene. 48 The appellant submitted that notwithstanding these references, there was nothing in the report itself that would enable a reader to determine the basis of the "COLLISION ANALYSIS" made in para 6, or the "SPEED ANALYSIS" contained in para 7 of the first report. 49 The Crown pointed out that Sergeant Kelly had made reference to some texts and papers in the first report (which I have set out above), although it accepted that this material was incomplete. The Crown maintained, however, that the formula used by Sergeant Kelly throughout his reports and oral evidence remained the same. 50 The second report made reference to certain testing that Sergeant Kelly had undertaken at the scene of the accident on 30 June 2005, two years after the accident. This testing was done using a Ford Falcon utility equipped with an "AutoStop" brake meter. There was a statement in the second report that Sergeant Kelly had made an assumption in his first report as to the road friction level at the time of collision. Sergeant Kelly then stated that the tests he had conducted on 30 June 2005 not only provided direct evidence of the coefficient of friction, but also demonstrated that the assumptions he had made in his first report were conservative. 51 The appellant complained that the testing introduced a new dimension to Sergeant Kelly's evidence. Whilst that is correct, it is to be remembered that the second report was served prior to the trial. Without more, this complaint does not demonstrate prejudice. 52 The appellant made a further complaint that the second report included a reference to an article written by Sergeant Kelly that had been published in 2004. It was submitted that the article was irrelevant to the matters in issue in this matter. The reference to the article appears in para 3.10 under the heading "Published articles" and is clearly intended to establish Sergeant Kelly's qualifications to give the expert evidence. There is no substance to this particular complaint. 53 The third report, dated 1 February 2007, recorded at para 11 that Sergeant Kelly had been requested by the Crown Prosecutor to comment upon the following issues: " · AUTOSTOP Maxi Brake Meter and its suitability for use in collision analysis. · The variance of deceleration values between a Ford utility to that of a Honda Civic used by Mr Haoui. · Provide a table comparing velocity and stopping distances based upon a uniform deceleration rate of 4.9 metres per second squared. · Provide measured distances of certain house numbers relative to house number 89." 54 It is not necessary to look at the detail of the third report for the purposes of the matter under consideration. The point the appellant seeks to make is that there was no reference in the third report to Sergeant Kelly's reliance upon the methodology of Fricke. 55 The fourth report was a repetition of the third report, but with additional material. Relevantly, at para 2, under the heading "METHODOLOGY", Sergeant Kelly identified three additional source materials upon which he relied for his analysis, namely, Engineering Mechanics and Strengths of Materials, Kinsky; Engineering Mechanics, Ivanoff; and Traffic Accident Reconstruction, Fricke. Attached to the report were selected extracts from the following six sources (including the three sources just mentioned): · Extracts from V Ivanoff, "Engineering Mechanics - An Introduction to Statics, Dynamics and Strength of Materials" McGraw Hill, Sydney, pp 65-68, 175 and 177; · An extract from R Kinsky, "Engineering Mechanics and Strength of Materials" McGraw Hill, Sydney, p 237; · Extracts from LB Fricke and JS Baker, "Drag Factor and Coefficient of Friction in Traffic Accident Reconstruction", Northwestern University Traffic Institute, pp 62.4-5, 62.13-14 and 62.30-31; · An extract from LB Fricke, "Momentum Applications in Traffic Accident Reconstruction", Northwestern University Traffic Institute, pp 68.3 and 68.26; · An extract from the "Bosch Automotive Handbook", on motor vehicle dynamics, pp 338; and · The calibration certificate dated 10 June 2005 for the "AutoStop" Brake Tester serial no, 26725 used in the tests described in the second report. 56 The appellant submitted that a reading of the fourth report disclosed that Fricke's publications were the essential foundation for most of the opinions proffered by Sergeant Kelly. Despite this, only limited extracts from Fricke's publications were appended to the report. 57 The Crown responded to this complaint by submitting that it would have been unreasonable to append more material than was considered relevant and as the texts had been identified, the appellant would have had the opportunity to make full reference to such material, either with or without expert assistance during any adjournment that his Honour had stated he would grant to the appellant. 58 The appellant next complained that Sergeant Kelly asserted in the fourth report, at para 2.6.1, that Fricke set out the mathematical process for solving collisions at different angles, being a method that has been adopted by crash investigators and engineers around the world for many years. Then, when dealing with "COLLISION ANALYSIS" in para 6, Sergeant Kelly stated, under the subheading "Conservation of Momentum": "6.1.1 The circumstances of this collision allow for the application of Conservation of Momentum to solve impact speeds of each vehicle. Therefore, I have chosen to use the method outlined in Fricke's chapter on Momentum Applications in Traffic Accident Reconstruction ." (Emphasis added)

[39]

The appellant complained that these representations, in both 2.6.1 and 6.1.1, were new and the appellant was not in a position to test those propositions during the course of the trial. 59 The complaint in respect of the assertion in para 2.6.1 was, at first blush, the lesser of the two problems that confronted the appellant at this stage of the trial. I say "at first blush" because, had the appellant availed himself of the adjournment that the trial judge was prepared to offer, it may not have taken much investigation to ascertain whether the assertion was correct. Indeed, some relatively quick research at a library, or more accessibly, on the internet, may have been sufficient to determine whether Sergeant Kelly's assertion was or was not correct. However, if Fricke's methodology was the basis of Sergeant Kelly's analysis, it was highly relevant to know whether that methodology was the standard accepted methodology, as asserted. Accordingly, this assertion was of real significance for the appellant and he needed to be able to assess its accuracy in an appropriate way. That may have been able to be done during the course of even a short adjournment. 60 However, the representation in para 6.1.1 also appeared for the first time in the fourth report. Sergeant Kelly did not explain why the circumstances of the collision allowed for the application of the Conservation of Momentum to ascertain the impact speeds of each vehicle. I consider that the appellant's complaint that he did not have time to appropriately deal with this assertion during the course of the trial has merit. The statement in para 6.1.1 involved technical material that may have been commonplace for an automotive engineer, but would be incomprehensible to an untutored recipient of the information. The question to be determined is whether an adjournment would have been sufficient to overcome the prejudice in which I consider the appellant was placed by the late introduction of this material. 61 The appellant next complained that Sergeant Kelly, at para 6.2.7 of the fourth report, made certain assumptions, based on Fricke, to validate the skid test that he undertook with the "AutoStop" meter on 30 June 2005. Sergeant Kelly then asserted, at para 6.2.8, that although the skid test was conducted using a Ford Falcon utility, which is heavier than the appellant's Honda Civic, it was his experience that a difference in vehicle size only marginally affected frictional values within a deceleration range of 0.04 g. He stated that his observations in that regard were supported by Fricke's Traffic Accident Reconstruction, which stated: "For passenger cars the friction force (with locked wheels and similar tyres) that can be generated over a given pavement does not differ significantly between sizes of cars. For example, if you have a compact car and an intermediate/full size car sliding with locked wheels at 30 miles per hour over the same pavement with similar tyres, expect to get essentially the same friction values." (Emphasis added) 62 The appellant complained that the material in paras 6.2.7 and 6.2.8 could not be dealt with "on the run" in the course of the trial. He further complained that there was an elision in Sergeant Kelly's report between "weight" and "size" for each vehicle that was not resolved. It was submitted that in the limited extracted material attached to the report, Fricke stated in "Topic 862 of the Traffic Accident Investigation Manual" that: " Friction Force Proportional to Weight

[41]

This statement seemed to indicate, on the appellant's submission, that Fricke regarded changes in weight, as opposed to size, as being material to the determination of the coefficient of friction. The appellant submitted that he should have had a reasonable opportunity to investigate this matter. 63 The appellant raised another problem with this aspect of Sergeant Kelly's evidence. Sergeant Kelly had undertaken his test in a Ford Falcon, which he said was heavier than a Honda Civic, but did not specify the weight of the Ford Falcon. 64 The next complaint related to the determination of the "drag factor and rolling resistance" of the vehicles immediately post-impact. To assess whether there is substance in the appellant's complaint that he was unfairly confronted with new material on this topic, it is necessary to contrast the manner in which the same topic was explained in the first and second reports, as compared to the fourth report. The purpose of this exercise is not to analyse the scientific material, but rather, to consider the material with which the appellant's counsel was confronted, given that he was reading the fourth report for the first time on the morning he was expected to cross-examine Sergeant Kelly. 65 In the first report, Sergeant Kelly stated at 6.1: "The lubrication in this particular collision is the water content on the road surface. Water will provide a slight film between the two surfaces accelerating the process mentioned above and therefore increasing a vehicle's stopping distance. A tyre mark recorded on a wet road demonstrates limited lubrication allowing sufficient friction/heat to melt the rubber increasing, to a degree, the vehicle's deceleration rate. The co-efficient of friction for a dry and level bitumen road surface can vary between 0.65 to 0.85 and for a wet road drops to 0.45 to 0.70. Generally friction levels below 0.5 fail to generate sufficient heat to induce heavy tyre marks. In many cases the tyre marks that are recorded are often fainter and at time difficult to see.

[55]

The extracted material on this topic attached to Sergeant Kelly's fourth report was not further extracted beyond the material set out above. 71 Having regard to Sergeant Kelly's stated reliance on Fricke, it might have been expected that the extracts he attached to his report related to the analysis he undertook in his report. However, the calculations contained in the extracted material do not appear in the fourth report. 72 The Crown's response to these complaints was, essentially, that the difficulties which the appellant faced in having to deal with this new material could have been met, either by having an adjournment, or alternatively, by making critical comment at trial in respect of certain matters, including, for example, what the appellant contended were apparent inconsistencies between Sergeant Kelly's views and the Fricke manual. · the coefficient of friction 73 The appellant made complaints in respect of the coefficients of friction selected by Sergeant Kelly. I do not propose to deal with the specific complaints that are made. Much of this is already referred to in the preceding section and the essence of the complaint is that this was new, technical material that could not be properly dealt with on the run. · the angles of impact and departure 74 The next area of complaint related to the angles of impact and departure of the vehicles. The appellant made numerous complaints in respect of this aspect of Sergeant Kelly's evidence. 75 The appellant's first complaint related to Sergeant Kelly's use of "physical evidence and crush profile of vehicle". Sergeant Kelly stated, at para 6 of the fourth report, that the physical evidence recorded from the scene, together with the crush profile of both vehicles and the tyre skid marks supported the fact that the utility was making a right hand turn into Frederick Street. He also stated that he used the positioning of the vehicles pre- and post-impact, based upon the evidence of the witnesses and the physical evidence to determine the impact speeds of each vehicle, by application of the theory of Conservation of Momentum. 76 The appellant submitted, however, that Sergeant Kelly did not identify any of the physical evidence that he relied upon, let alone any of the features of that evidence that led him to the conclusion(s) he reached. Further, Sergeant Kelly said nothing in the fourth report about the crush profile. Nor did he identify the photographic evidence of the vehicles to which he had referred, which appears to be the only source from which he could have deduced the crush profile. 77 Next, the appellant complained that Sergeant Kelly failed to state how the skid marks provided "support" for the conclusion that the utility was making a right hand turn into Frederick Street from the driveway. The appellant contended that this omission was of particular significance as, in his reports, Sergeant Kelly had ignored the accounts of the appellant and his passenger that the utility had made a U-turn in front of them. 78 The next area of concern raised by the appellant related to the approach and departure angles for each of the vehicles involved in the accident. In his first report, Sergeant Kelly had stated: " 7.4 Approach and departure angles

[56]

Using the X and Y co-ordinates, the approach and departure angles for each vehicle can be established from the crime scene plan. For this analysis the Honda Coupe was travelling along the X axis at an angle of 0 degrees. The Toyota utility was turning out of a driveway, however at the point of impact the Toyota was travelling at an angle of 235 degrees. Post impact the Honda Coupe has only changed direction by two degrees and the Toyota from 235 to 320 degrees." 79 The appellant contended that in this analysis, Sergeant Kelly simply undertook a geometric exercise utilising the scale plan of accident scene as an accurate and reliable representation of the position of the vehicles on the roadway. He made no mention of the "crush profile" of the vehicles, nor of "physical evidence", which apparently formed an important part of the analysis undertaken in the fourth report. 80 It was next contended that in the first report, Sergeant Kelly utilised a formula under the heading "Calculation of collision data" (para 7.5) to determine the impact speed of the vehicles, but did not identify the source of the formula, or explain why that formula was used, or how it operated. He concluded his analysis in his first report by stating that the restitution figure of 0.347 was "supportive of the plastic damage sustained to the vehicles involved". However, there was no identification of the plastic damage, nor was any source identified as the basis of that approach. The appellant also contended that the primary facts as recorded on the scale plan of accident scene were never proven in evidence. As I explain below, this last assertion is incorrect. 81 The appellant complained that this unsatisfactory position remained unchanged, despite the provision of the second and third reports. It was only in the fourth report that there was any reference to source material concerning the determination of momentum for angled impacts: see para 2.6.6. That source was Fricke. However, the portion of Fricke's manual that was attached to the fourth report which contained the formula specified at para 2.6.6, was particularly selective, consisting of one page only. It was submitted, therefore, that it was impossible for the appellant, during the course of the trial, to assess whether Sergeant Kelly's formula was based upon correct principles. Nor was the matter elucidated during the course of the voir dire, or during Sergeant Kelly's evidence in chief. 82 Senior counsel for the appellant next contended that it was apparent from para 6.4.1 of the fourth report that, notwithstanding his earlier references to physical evidence and crush profiles, Sergeant Kelly had in fact superimposed a protractor onto the plan of accident scene to explain how he had determined that at the point of impact the utility was travelling at an angle of 235 degrees. It was contended that the same process was used to conclude that post-impact, the utility had been displaced from 235 degrees, to 320 degrees, and that the appellant's vehicle had only changed direction by 2 degrees. (As I understand this evidence, the change of 2 degrees was the final position of rest, as compared to the initial angle of impact, as the evidence established that the appellant's vehicle had turned nearly 360 degrees.) 83 It was further submitted that the information contained in the plan of accident scene was never established by the evidence. This complaint can be immediately dismissed. The plan of accident scene was tendered in evidence as Exhibit 2. The content of the plan was supported by the evidence of Senior Constable West, who said that he attended at the scene of the accident, took measurements and made observations. In particular, he observed the position of the utility and recorded that it "was facing a south-westerly direction at a 45 degree angle to the western kerb alignment". 84 Senior counsel next complained that in his fourth report, Sergeant Kelly did not consider any alternate hypotheses as to the speed of the vehicles, should it be established that the approach and/or departure angles for either or both of the vehicles was different to that assumed by him to be the fact. However, two new matters emerged in the oral evidence. First, in his evidence on the voir dire, Sergeant Kelly stated that he had relied on the crush damage to determine the angles and that he had identified that damage from the photographs. He selected photographs numbered 7 and 10 as being the photographs he had relied upon. This evidence was repeated to the jury. 85 Next, during the voir dire, his Honour had asked Sergeant Kelly what the position would be in the event that the utility had come out of the driveway in a straight line (that is, at 270 degrees) rather than at the angle previously assumed (that is, 235 degrees). Sergeant Kelly stated this would result in a lower pre-impact speed that he could calculate, given time. His Honour asked Sergeant Kelly to undertake this exercise. Sergeant Kelly later gave evidence that in that instance, the speed of the appellant's vehicle would lessen to 82 km per hour. 86 Senior counsel for the appellant complained that prior to Sergeant Kelly's oral evidence, there had been no attempt to rely on anything other than the plan of accident scene (Exhibit 2) for the calculation of the pre-impact direction of travel of the vehicles. (There was an error in the appellant's submissions which made reference to Exhibit 8. An examination of the material indicates that the appellant must have been referring to Exhibit 2.) Likewise, the first time that any consideration had been given to the angle of impact of the utility being anything other than 235 degrees, was during the course of Sergeant Kelly's oral evidence. 87 It was submitted that it was impossible to properly deal with these new matters in the course of the trial. The witnesses who could comment upon the facts forming the basis of the new analyses had already given evidence. It was submitted that it would be unfair to the appellant if they were recalled. It was also submitted that having regard to the lack of precision in Sergeant Kelly's evidence prior to his oral evidence, it would be prejudicial to the appellant to undo these forensic decisions. 88 During the course of his evidence before the jury, Sergeant Kelly proffered the opinion that it did not matter, for the purposes of calculating the angle of the vehicles at the point of the collision, whether the utility spun three-quarters of a circle, or one and three-quarter circles. Sergeant Kelly eventually conceded that he did not know how much the utility had rotated, but maintained that the displacement was from 235 degrees to 320 degrees. The appellant submitted that this process of reasoning was illogical, had not been adverted to in any report, and was not supported by any identified literature. It was submitted that this necessarily undermined Sergeant Kelly's conclusion. 89 Relevantly, however, for the purposes of this ground of appeal, it was submitted that this evidence could not properly be dealt with by the appellant. The appellant contended that this was exemplified by the attempt made in cross-examination to deal with the matter. The result of that cross-examination was that Sergeant Kelly asserted that even without the benefit of calculations, the result, that is, the assessment of the speed of the appellant's Honda Civic, would be very similar. 90 The appellant argued that he was entitled, in advance of his trial, to be put in a position to either validate or invalidate assertions on this critical matter. It was also submitted that Sergeant Kelly's evidence as to the post-impact motion of the appellant's vehicle suffered from the same deficiencies as his other evidence, namely, that it was unsupported by primary facts. 91 The Crown made the following responses to the appellant's complaints on this aspect of the evidence. First, it submitted that although Sergeant Kelly's reports had been based upon the utility making a right hand turn out of the driveway, this was not an opinion he expressed at trial. That is not correct. At the end of his examination in chief, the counsel for the Crown asked Sergeant Kelly: "Q. And one last thing in the course of your analysis of this collision, you assumed the utility was making a right hand turn onto Frederick Street from or near the driveway at number 89, correct? A. Yes." 92 Sergeant Kelly was then asked whether it would make a difference if he assumed the utility had made a right-hand turn in the nature of a U-turn from the side of the road on Frederick Street in front of the appellant. Sergeant Kelly stated that this would not have made any difference to his analysis, as his analysis was based on the angle of the vehicles at the time of impact, regardless of where they came from. However, the Crown's mistaken submission is of little import. The question for consideration remains whether the appellant was, in all the circumstances, unfairly prejudiced in the way the trial was being conducted and whether that prejudice could have been cured. 93 The Crown submitted that had the appellant accepted an adjournment, his legal representatives would have had an appropriate opportunity to deal with the new material introduced in the fourth report. As to the complaints in respect of Sergeant Kelly's methodology in using a protractor, it was submitted that this was a matter for cross-examination at trial. The Crown also submitted that the appellant has not explained what questions it would or could have asked the witnesses, should they be recalled, that had not been put to them initially. 94 The next complaint relates to the opinion evidence introduced at the conclusion of Sergeant Kelly's evidence in chief as to the effect on the outcome of his analysis if he assumed that the utility had made a U-turn in front of the appellant. Sergeant Kelly said it would have made no difference to his analysis, which was based on the angle of the vehicles at the time of impact, regardless of where they had come from. 95 This evidence was a repetition of the evidence Sergeant Kelly had given during the course of cross-examination on the voir dire earlier that morning, when he had explained that his focus was on the "actual positioning of the vehicle at the time of impact". He had conceded in that regard, however, that if a vehicle was doing a "circle as distinct from going across in a straight line to make a right hand turn", it could affect the position of the vehicle at impact, depending upon the vehicle's turning circle. Sergeant Kelly had also agreed in his evidence on the voir dire that he had not done any calculations concerning the assumption that the utility was doing a U-turn, but had examined the impact damage (which, it will be recalled, was assessed from the photographs numbered 2 and 3). "… and tried to put the vehicles together as best as possible given an impact damage. So I haven't looked at whether the vehicle's come from a driveway or whether it's doing a U turn." 96 There was, therefore, a shift in Sergeant Kelly's evidence from the voir dire to that given at trial. On the voir dire, Sergeant Kelly said that he had not considered where the utility had come from. However, in his evidence before the jury, Sergeant Kelly said that it would not have made any difference to the outcome of his analysis, which, he said, was based on the angle of the vehicles at the time of impact, regardless of where each had come from. This evidence had the effect of undermining the appellant's case, which had been conducted on the basis that Sergeant Kelly's evidence as it had been notified to the appellant prior to trial was seriously deficient in the aspects identified. On this particular aspect, the appellant's forensic position was that there was no evidence to support Sergeant Kelly's assumptions as to the angle of impact, and that he had not made any assessment of the speed of the Honda Civic, on the assumption that the angle of the vehicles at the point of collision was 90 degrees. 97 Not only did this evidence introduce a new consideration into the Crown case which was detrimental to the appellant's case, the new evidence had its own difficulties. In his evidence in chief before the jury, Sergeant Kelly said that he had estimated the angle of the utility at the point of impact from the "damage profile" on the utility. However, he also said that "the [utility] … was taking a particular path" at the time of collision. 98 That evidence appears to be inconsistent with Sergeant Kelly's evidence given on the voir dire that he had not "looked at whether the vehicle's come from a driveway or whether it's doing a U-turn". The Crown submitted that these were matters upon which the appellant could have appropriately cross-examined Sergeant Kelly at trial and did not demonstrate that the appellant was in any way prejudiced. I agree with this submission, insofar as Sergeant Kelly's evidence may have been inconsistent. There remains the question whether the new evidence placed the appellant in an unfair position. · condition of the tyres 99 The next area of complaint related to the condition of the tyres of the Honda and the effect that would have had on the analysis of the collision and in particular, Sergeant Kelly's calculation of the pre-impact speed. The appellant relied upon the fact that Sergeant Kelly had not expressed any opinion in any of his reports as to the effect of tread depth on the front tyres as a factor relevant to the analysis of the appellant's speed. During the course of the voir dire on 5 February, the trial judge raised this matter with Sergeant Kelly, who expressed the opinion that he did not think it had a great effect at all. However, in his examination in chief, the Crown asked Sergeant Kelly if wear on the inside shoulder of the tread of the front tyres would cause him to make any change in his estimate of the pre-skid speed. Sergeant Kelly responded that it would not and gave a lengthy explanation as to why that was so. The appellant complains that this was another instance of having to deal with a new opinion "on the run". 100 The Crown responded by again stating that the appellant had given no explanation as to why this issue could not be dealt with if given an appropriate adjournment.

[57]

Was the appellant unfairly prejudiced? 101 The first question for consideration on the appeal is whether the trial miscarried because the appellant was required to deal with evidence of an expert during the course of the trial, in circumstances where the initial reports of that witness were seriously deficient and, as conceded by the Crown, provided an insufficient basis to establish the speed at which the appellant was travelling at the point of collision. 102 The fundamental consideration is that an accused person is entitled to a fair trial: Velevski v R [2002] HCA 4; (2002) 187 ALR 233. 103 There are no rules that govern the service of evidence and, in particular, the service of expert reports for the purposes of a criminal trial. This might be contrasted with the position that applies in respect of a civil trial: see Uniform Civil Procedure Rules 2005, r 31.28. Notwithstanding that there are no rules that govern the service of expert reports, Crown counsel, starting with the fundamental proposition that the Crown must act with fairness, accepted that fairness required disclosure, including providing proofs of evidence at a reasonable time, so as to enable an accused person to prepare his or her case. Crown counsel also accepted that Sergeant Kelly's reports were initially inadequate, but that when those inadequacies were remedied, the trial judge, by offering an adjournment to the appellant, provided a reasonable opportunity to remedy the problems with which the appellant was faced. 104 Crown counsel also accepted that the fourth report contained new material that should have been provided to the appellant earlier. It was submitted, however, that Sergeant Kelly's calculations and ultimate conclusions had always remained the same and that essentially, what had been provided was the source material and a fuller explanation of how Sergeant Kelly had reached those conclusions. 105 In my opinion, the appellant has established that there was new technical material contained in Sergeant Kelly's fourth report that was advised to the appellant late on Sunday, 4 February (which came to the attention of senior counsel on Monday, 5 February) and which formed the basis of Sergeant Kelly's evidence. Sergeant Kelly was called both on the voir dire and at trial on 5 February. 106 The new technical material in the fourth report covered at least the five topics identified in the appellant's further submissions provided to the Court after the hearing of the appeal. Those new topics were: (1) reliance upon the methodology of Fricke; (2) the coefficient of friction; (3) the angle of impact and departure of the two vehicles; (4) the shift in opinion evidence introduced as to the effect of the utility undertaking a U-turn in front of the appellant's vehicle; and (5) the condition of the tyres of the appellant's vehicle. Each one of those topics was relevant to support Sergeant Kelly's opinion as to the speed at which the appellant was driving his vehicle at the time of the collision. 107 Some of the new material in the fourth report was of a highly technical nature. Some of that material has been set out above, not for the purpose of determining whether the evidence was sufficient to establish the Crown case, but to assess whether senior counsel might have been reasonably expected to be in a position to cross-examine, or at least to make decisions as to whether, and to what extent, to cross-examine Sergeant Kelly within about an hour of receiving the report. In making that assessment, the Court ought to approach the matter on the basis that as at the morning of 5 February, the appellant's legal representatives would already have determined direction of the cross-examination based upon the contents of the first, second and third reports. 108 When consideration is given to the dynamics that would have been in operation at that point, the following picture emerges. Senior counsel for the appellant knew that he was required to cross-examine Sergeant Kelly commencing on the morning of 5 February. His cross-examination at that point would have been prepared on the basis of the material contained in, as well as the differences in, the first, second and third reports. He was then presented with new evidence and, having regard to the exigencies of counsel getting to court, would have had approximately an hour to deal with the material. 109 If the trial was to proceed that morning, senior counsel had to consider the new material, ascertain whether it was different from the material served to date, determine whether it was supported by the facts established in the evidence given in the trial up to that point; and both be sufficiently familiar with and understand the technical aspects of the material so as to cross-examine Sergeant Kelly shortly thereafter. 110 Senior counsel would also have had to check whether the material in the fourth report and the conclusions drawn in it correctly reflected the source material upon which Sergeant Kelly said he relied. He would have had to check whether the source material was reliable and relevant and whether the extracts were relevantly complete. As I have already indicated, one of the extracts concluded mid-sentence. That would have raised a question in any reasonable legal practitioner's mind as to whether at least the next page of the source material should have been included. 111 It was not necessarily obvious on the face of the extracted material whether it was relevant, or whether Sergeant Kelly had in fact relied upon it. I make this observation because it does not appear that Sergeant Kelly in fact used Fricke's calculation in the fourth report, or at least, did not use those that were contained in the extracted material. 112 In my opinion, having regard to the considerations that I have outlined, senior counsel could not have been expected to be able to adequately cross-examine Sergeant Kelly at 10 am on 5 February. The appellant was thereby seriously prejudiced. That raises the question whether that prejudice could have been cured either by the grant of an adjournment or by recalling witnesses, or both. 113 The question whether an adjournment would have remedied the prejudice does not admit of a ready answer. In the first place, it is not known whether, prior to trial, the appellant's legal representatives had had the assistance of an expert for the purposes of considering Sergeant Kelly's evidence. However, even if they did not have such assistance, it is not an answer that it was of the appellant's own choosing not to have called expert evidence in his defence. Leaving aside the technical mathematical calculations contained in Sergeant Kelly's first, second and third reports, the lack of underlying material and/or the absence of supporting technical data for his analysis was obvious on the face of the reports. The appellant's legal representatives were well qualified and able to appreciate that the reports were deficient and that this provided a reasonable basis upon which to challenge Sergeant Kelly's evidence. 114 His Honour's offer of an adjournment, therefore, presupposed that on Monday 5 February, the appellant could have had ready access to an expert for the purposes of obtaining assistance in understanding the new material contained in the third and fourth reports. I say "ready access", because it would not have been appropriate, having regard to the fact that this matter was proceeding before a jury, for the trial to be adjourned for more than a day or two. It is not self-evident that expert assistance could have been obtained during that time. 115 Assuming that expert advice could have been obtained, the expert may have wanted to attend the scene of the accident and perhaps to have carried out testing, particularly relating to the coefficient of friction. Thus, even if it had been reasonable for the trial judge to adjourn the matter longer than I have considered appropriate, to, say, the following Monday, I do not consider that the Court can assume that an expert would have been available to provide a report or other assistance to the appellant in this time and if necessary to be available to give evidence. 116 It follows that an adjournment would not have overcome the prejudice that the appellant was suffering at that point. 117 There was then the further problem with which the appellant was faced, namely, the evidence that Sergeant Kelly gave before the jury which had not previously been the subject of his reports or his voir dire evidence. The appellant had no opportunity at trial to respond to this evidence. For the reasons I have already given, an adjournment would not have remedied the prejudice caused by this further new material. 118 That leads to the next question as to whether the prejudice could have been properly addressed by permitting the Crown witnesses to be recalled. 119 Two initial comments should be made in respect of this proposition. First, senior counsel for the appellant readily acknowledged that he had prepared the matter for trial on the basis that tactical decisions had been made as to how he would defend the appellant. Those tactical considerations were based upon the fact that he had assessed that Sergeant Kelly's first and second reports in particular were flawed in an evidentiary sense and were likely to be rejected by the trial judge. It was perfectly proper for the appellant's legal representatives to make such tactical decisions and they were on reasonably strong ground in that regard: see the trial judge's comments in his judgment of 5 February 2007, referred to at [34] above. 120 It is not to be overlooked that tactical decisions may need to be reconsidered during the course of a trial and indeed they may fail altogether. Accordingly, the fact that tactical decisions were made does not necessarily mean that a person is prejudiced or the trial thereby becomes unfair when the chosen tactical approach is undermined by evidence that is given at trial. However, the appellant's point is that not only had tactical decisions been made, those decisions were undermined not by the usual processes of trial, but by the late introduction of and changes in the evidence of the Crown's expert witness, without which there would have been no case to go to the jury. 121 The second comment is that the proposal that witnesses be recalled assumes that the witnesses would have been available. An examination of the transcript indicates that the witnesses were not excused from further attendance in the matter. Nonetheless, it may not necessarily have been easy to have them return. 122 Even assuming that the witnesses could be brought back to give evidence, the appellant's point that this would have been prejudicial to him is well made. Given the onus on the Crown to establish the factual basis upon which expert evidence is based, it would not merely have been the case that the witnesses would be recalled for cross-examination, as seems to have been assumed by the trial judge and by the Crown on the appeal. It is likely that those witnesses would need to be further examined by the Crown to establish the primary facts upon which Sergeant Kelly's evidence was based. 123 However, even if their recall was only for the purposes of cross-examination, it cannot be assumed that the jury would have considered that the fact the witnesses had to be recalled reflected badly on the Crown, as was submitted. Rather, it is likely that it would have reflected adversely on the appellant's counsel, who would then have to proceed to ask questions additional to those asked previously. If the circumstances required that more than one witness needed to be recalled, it would most likely have had the appearance that the appellant's counsel was incompetent. That is not a satisfactory position for an accused person to be in. I am not satisfied that a direction would have overcome that impression. 124 It is likely that the witness who would be most relevant to recall was Senior Constable West. The initial cross-examination of Senior Constable West was relatively brief. Having regard to the use which Sergeant Kelly finally made of Senior Constable West's material, it is possible and probably likely, that his measurements and, in particular, his observation of the precise angle at which the vehicles came to rest, would have been the subject of vigorous cross-examination. In my opinion, that is likely to have raised a question in the jury's mind as to why that cross-examination had not been undertaken earlier. This, in effect, is the same point that I have raised above. 125 The Crown comments that the appellant does not identify what additional evidence would need to be asked of these witnesses. That argument had an initial attraction but at the end of the day, it is not persuasive as the areas for cross-examination are obvious and relate to the angle of the vehicles at the time of the collision and their post impact movement. 126 I would conclude, therefore, that the appellant was prejudiced in the manner in which the evidence of Sergeant Kelly was made available to the appellant and by the evolution of his evidence in the course of the trial. Accordingly, for these reasons I would allow grounds 1(b) and (c) and ground 2 of the appeal. 127 There is a separate question as to whether Sergeant Kelly had the relevant expertise to give the evidence as to the pre-impact and pre-braking speed of the appellant's vehicle. There is also a question as to whether Sergeant Kelly should have been able to give evidence at all, on the basis that it was likely that his opinion would be biased in favour of the prosecution case, this being a motor vehicle accident which had been investigated by the police and, in effect, prosecuted by them. In my opinion, both these grounds of appeal should be rejected. At the most, Sergeant Kelly's level of expertise and any question of bias were matters of weight and essentially matters for the jury: see Li v The Queen [2003] NSWCCA 290; (2003) 138 A Crim R 281. I therefore reject ground 1(a) of the appeal.

[58]

Ground 3: did the passenger in the other vehicle, Mr Mousselamani, suffer grievous bodily harm? 128 The appellant was convicted of dangerous driving occasioning grievous bodily harm. "Grievous bodily harm" is defined in s 4 of the Crimes Act to include injury and harm that is not directly applicable here. 129 Relevantly for present purposes, for harm or injury to constitute "grievous bodily harm", there must be "really serious injury": see Viscount Kilmuir LC in DPP v Smith [1961] AC 290 at 334. In R v Perks (1986) 41 SASR 335, King CJ said that if the meaning of "grievous" was to be explained to the jury, then the expression "really serious", rather than merely "serious" should be used. 130 Mr Mousselamani was a passenger in the utility. He was 67 years old at the time of the accident and remembers nothing as to how the accident occurred, other than having heard a bang and then waking up in hospital the following day. He spent two days in hospital, having sustained a subconjunctival haemorrhage to his right eye and a depressed right malar, or cheek fracture. The accident also caused his dentures to become loose, for which rectification work needed to be undertaken. He has had no problems with his right eye since the accident. In explaining the swelling around his eye, he said "Yeah, I was just swelling. But it wasn't that I had a fight with somebody". He said the swelling went away within a few days and he was able to go to a party about a week later at which he played an Arabic flute. He explained, however, that it was his son's wedding and "even if I was to die I would have to do something for him". 131 Dr Ho, plastic surgeon, gave evidence that in 2003 he was an advanced plastic surgery registrar and was on duty when Mr Mousselamani was admitted to hospital. Dr Ho said that Mr Mousselamani's right eye was red, which he said was called a subconjunctival haemorrhage, but that his eye signs were otherwise normal, as was his facial sensation. The positive finding was of a depressed right malar, or cheek fracture with bony deformity. Dr Ho explained that the malar is the "… prominence on the cheek bone … which is part of the zygomatic bone which forms part of the front of the face … on the cheek as well as the arch on the side."

[62]

Q. For all those reasons, that's why you performed surgery on this man? A. That's right." 135 Dr Ho said that when he saw Mr Mousselamani the day following the operation, his eye signs were good and he had little pain; all his cranial nerves were intact; his vision was fine and all his "observations" were stable. Dr Ho said that he would have expected that there would have been about eight sutures in the temporal region to close the incision made for the operative purposes. In addition, there would have been about 10 sutures in the brow and one inside the mouth. 136 Under cross-examination, Dr Ho agreed that the injury to a cheekbone was a common injury and one which a plastic surgeon frequently encounters. He agreed that it was the sort of injury that a footballer could get from an impact with a knee or elbow and Dr Ho said he had seen such an injury having been caused by a range of mechanisms, from an old lady falling on the footpath, to a person having been involved in an assault with a blunt instrument. He said that this type of fracture could cause ongoing problems, but there were none in this case. Dr Ho also confirmed that the surgical procedure in this case was performed first to stabilise the face and secondly for cosmetic reasons. 137 The trial judge informed the jury that the third element of the offence, namely, that the impact caused "grievous bodily harm" was in dispute. His Honour directed the jury to look at "the seriousness of the injury that Mr Mousselamani suffered". The trial judge correctly directed the jury as to the meaning of "grievous bodily harm" and also directed them that this was a question of fact for their determination. His Honour informed the jury that the challenge was whether the injury amounted to "grievous bodily harm" which, he explained, "simply means really serious bodily injury". No challenge is made to this direction, although the adverbial qualification of "simply", should, in my view be avoided as it might be considered to downplay the seriousness of the injury for the purposes of the section. His Honour also directed the jury that it was a question of fact for their determination as to whether the injury amounted to "grievous bodily harm". His Honour pointed out that the injury did not need to be permanent, or long lasting, or life threatening. His Honour reiterated that "grievous bodily harm" meant that the injury was "a really serious one" 138 The question whether an injury amounts to "grievous bodily harm" has been considered in a vast number of cases. It is not difficult to determine cases at the more serious end of the scale. The following cases fall within that category: complex skull fractures: R v Remilton [2001] NSWCCA 546; R v Williams [2005] NSWCCA 14; severe multiple fractures to a leg and nerve damage to the right side of the face; a closed head injury and facial neurological damage, as well as severe injuries to a knee: R v Shannon [2003] NSWCCA 106 (two victims); fractures to the "middle third" of the face with a complicated laceration of the right ear requiring steel plates and screws, causing ongoing headaches and continuing treatment to the eyes which were sunken as a result of the injury: R v Sumeo [2002] NSWCCA 271; rib fractures in a child: BJR v R [2008] NSWCCA 43. 139 However, there are other injuries, which although "really serious injuries", are nonetheless less severe than those to which I have just referred. The fact that the concept of "grievous bodily harm" encompasses a range of injury was recognised in R v Woodland [2007] NSWCCA 29; [2007] 48 MVR 360 at [35]. In that case, the victim had sustained significant facial fractures, including a right orbital complex fracture. Simpson J accepted that the victim's injuries were not "the worst case of grievous bodily harm", but were far from the low end of the range of injuries amounting to "grievous bodily harm". Other examples include: a fracture to the left orbit received in a violent kicking incident where it was said that the victim was "seriously injured", that he had suffered "significant injury", and where the offence was described as involving "gratuitous cruelty": Singh v Director of Public Prosecutions (NSW) [2006] NSWCCA 333; 164 A Crim R 284; and facial fractures, including fractures to the victim's cheekbones and nose which required reconstructive surgery, extending to the insertion of metal plates under the lower eyelid and inside the lining of the mouth the plates to remain in situ permanently: Vann v Palmer [2001] ACTSC 12. 140 It is also apposite to refer to the Local Court Criminal Practice, New South Wales (as at Service 34, May 2008, Marsic, Longville and Rattenbury (Authors), Dillon (Advisory editor)), where a comment is made at 19.140.1 that "It can be argued that one uncomplicated fracture of any of the limbs or the nose, jaw or cheekbone would on its own not normally amount to grievous bodily harm"

[63]

However, no authority is cited for the proposition. 141 In my opinion, the jury verdict that Mr Mousselamani suffered "grievous bodily harm" was an unreasonable one. The injury that he suffered was a fracture of the cheekbone. Dr Ho explained that the orbital floor fracture was necessarily coincidental with a fracture of the cheekbone. He said that the orbital floor fracture was minimal. The eye was not damaged and was 'red' for a short period. If the fracture had not been properly treated, it would have resulted in some ongoing disability, namely, a limitation of mouth opening and there would have been some cosmetic impact. However, it would be a matter of common experience that most, if not all, bony fractures, if not appropriately treated, would have some ongoing consequence. In this case, the treatment involved the insertion of a very small titanium plate to keep the bony prominence of the cheekbone elevated. The surgery required was not complicated and the period of recuperation was short. 142 In the appellate context in which I am considering whether the injury in this case constituted "grievous bodily harm", two fundamental matters have to be kept in mind. The first is that there is a range of "really serious injury" and that it is irrelevant that some injuries may not be as serious as others. Provided the harm is "really serious injury", then there is "grievous bodily harm". Secondly, the question whether particular harm amounts to "grievous bodily harm" is a question of fact for the jury. 143 The Court has power to set aside a jury verdict on the basis that it is "unreasonable" or because "on any ground whatsoever there was a miscarriage of justice". In M v R [1994] HCA 63; (1994) 181 CLR 487 the High Court said, at [7]: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (Citations omitted) 144 In MFA v R [2002] HCA 53; 213 CLR 606, the High Court confirmed this test, but emphasised that although the test was broad, it was constrained by the respect that had to be given to the jury verdict and the requirement that there be "a miscarriage of justice". McHugh, Gummow and Kirby JJ stated, at [51]: "These contextual indications, obliging a measure of restraint on the part of courts of criminal appeal in taking the serious step of setting aside a conviction based on the verdict of a jury, have led to judicial attempts to re-state, in other words, what s 6(1) states in the words of Parliament. Such attempts were understandable enough given that every year, in almost every jurisdiction of this country (and many elsewhere where the Criminal Appeal Act 1907 (UK) was copied), hundreds of decisions must be made responding to submissions that, in the particular case, the verdict of the jury should be set aside on the nominated grounds. It was perhaps inevitable that courts of criminal appeal should struggle for verbal explanations of their own, in effect to express the reasons that they considered sufficient to justify overturning the verdict of the jury in a particular case. Such formulae would signal the advantage that the jury enjoyed over the appellate court, and the undesirability of effectively replacing jury trial of serious criminal charges with trial before a court of criminal appeal comprising (normally) three judges who ordinarily see no witnesses, hear no evidence and decide the reasonableness and supportability of the verdict by reference to selected passages of evidence to which attention is drawn by the parties." (Citation omitted) 145 Having full regard to those principles, I am of the opinion that the jury verdict was unreasonable. The injury involved here was a fracture of a small bone, which, on any reasonable assessment, is not "serious bodily injury". It is actual bodily injury. Admittedly, for surgery purposes, it was in a slightly awkward position. That, however, does not convert the injury into a more serious injury. Nor, in my opinion, does the fact that a plate had to be inserted. The plate was small and was required, not because of any really serious nature of the injury, but because it was a facial bone that was fractured. For that reason, I would allow ground 3. 146 Since preparing these reasons, I have had the benefit of the very helpful discussion with Johnson J on the procedural questions relating to expert evidence and, in particular, expert reports in a criminal trial in the District Court. I agree with his Honour's analysis and endorse his comments. 147 Insofar as ground 3 is concerned, had it not been for my conclusion that the jury verdict was unreasonable, I would have agreed with Johnson J's reasons in respect of ground 3 of the appeal. 148 As on the approach I have taken, the appeal is to be allowed and there is to be an acquittal, it is not necessary to deal with the application to appeal against sentence. 149 Accordingly, I propose the following orders:

[64]

Order the entry of a verdict of acquittal. 150 JOHNSON J: I have had the considerable advantage of reading the judgment of Beazley JA. 151 I agree with her Honour's reasons and conclusions with respect to Ground 1(a), (b) and (c) and Ground 2. There are some additional comments which I wish to make with respect to these grounds. As Beazley JA observes at [103], there are no rules of court governing the service of expert reports for the purposes of a criminal trial in the District Court. The elaborate provisions contained in Rule 31 Uniform Civil Procedure Rules, and in particular Rule 31.28, do not apply to those proceedings. The pre-trial disclosure provisions which may operate with respect to complex criminal trials (ss.134-149 Criminal Procedure Act 1986) did not apply to this trial. 152 Section 171(2)(h) District Court Act 1973 provides for the Rule Committee (established by s.18A of that Act) to make rules for the purposes of the District Court's criminal jurisdiction concerning evidentiary matters, including the giving of expert evidence. The Criminal Procedure Rules contained in Part 53 District Court Rules do not contain any rule touching on expert evidence. 153 Section 171D District Court Act 1973 provides that, subject to that Act and the District Court Rules, the procedure and practice of the District Court when exercising criminal jurisdiction shall, so far as practicable, be the same as the procedure and practice of the Supreme Court when exercising similar jurisdiction. 154 Part 75 Supreme Court Rules applies to criminal proceedings in the Supreme Court. Rule 3(1)(f) of Part 75 provides, relevantly, that Rules 31.21 (expert evidence in chief to be given by way of expert reports) and 31.22 (expert witness to provide details of contingency fees or deferred payment schemes) of the Uniform Civil Procedure Rules apply, so far as applicable, to criminal trial and sentence proceedings in the Supreme Court. Rules 3J and 3K of Part 75 make express provision with respect to expert witnesses in criminal proceedings, including application of the Expert Witness Code of Conduct (Rule 3J) and the giving of directions for a conference between experts (Rule 3K). However, Rule 31.28 of the Uniform Civil Procedure Rules (disclosure of experts' reports and hospital reports) is not incorporated by reference into Part 75. 155 It is not clear why Part 75 Supreme Court Rules makes some provision with respect to expert witnesses and expert reports, but Part 53 District Court Rules is silent on the topic. It is difficult to see how s.171D District Court Act 1973 could operate to apply the Supreme Court Rules concerning expert witnesses and expert reports to the District Court. 156 In the absence of statutory rules governing the service of statements or reports after committal for trial, the area is subject to the Crown's duty to act fairly and to help to ensure that the accused's trial is a fair one: Whitehorn v The Queen (1983) 152 CLR 657 at 663-664. Where a statement or report is served late, the procedure outlined in R v Basha (1989) 39 A Crim R 337 may be utilised, as it was in this trial. This procedure may be of limited value where additional expert material, of some technical complexity, is served upon the accused in the course of the trial. All of this serves to demonstrate a lack of clarity and consistency with respect to use of expert evidence in trials on indictment. 157 The circumstances of this case point to the desirability of a clear procedural scheme where expert reports are served for the purpose of jury trials in the District Court. The District Court Rule Committee may wish to consider this issue. The Director of Public Prosecutions may also wish to give consideration to making provision in the Director's Prosecution Policy and Guidelines with respect to the service of Crown expert reports. 158 In some respects, it is curious that there is more elaborate provision concerning the use of expert reports in civil proceedings than criminal trials. Civil proceedings in the Supreme and District Courts are almost entirely heard by a judge sitting alone. Criminal trials in the Supreme and District Courts are most frequently determined by juries. The capacity to adjourn proceedings, and to adopt flexible procedures, is far more limited in a jury trial. The jury in this case was informed that the trial was expected to take about five days (T2). Sergeant Kelly's fourth report was provided to senior counsel for the Appellant on the morning of the fifth day of the trial. As Beazley JA has demonstrated, this report was not a supplementary report which merely tied up loose ends or fine tuned, in minor respects, Sergeant Kelly's earlier reports. It contained substantial additional material and annexures involving complex formulae. The service of the report at this point in the trial placed the trial judge, the Appellant and his counsel in a difficult position. I agree that the Appellant was unfairly prejudiced and that the trial miscarried for the reasons given by Beazley JA. 159 With respect, I do not agree with the conclusion of Beazley JA upholding Ground 3 concerning the element of grievous bodily harm. In my view, the evidence revealed that Mr Mousselamani suffered a significant injury which required significant surgery. 160 His Honour directed the jury that the words grievous bodily harm "do not require that the injuries are a permanent one" or "that the consequences of the injury are long lasting, or life threatening" but that "they do require that the injury is a really serious one" (SU17). No challenge was made on appeal to the correctness of this direction, which accords with authority. 161 I agree with the characterisation of the learned sentencing judge in his remarks on sentence that the injuries "amounted to grievous bodily harm but very much at the low end of that scale" (ROS2). 162 There is no bright-line test for determining whether a particular injury or injuries constitute grievous bodily harm. In my view, it has not been demonstrated that the finding of the jury that the injuries constituted grievous bodily harm is unreasonable or cannot be supported, having regard to the evidence: s.6(1) Criminal Appeal Act 1912. It was open to the jury to be satisfied beyond reasonable doubt that the element of grievous bodily harm had been established in this case: M v The Queen [1994] 181 CLR 487 at 493. I would reject Ground 3. 163 As the appeal against conviction succeeds, it is not necessary to deal with the application for leave to appeal against sentence. 164 The question arises as to whether this Court should order a new trial: s.8(1) Criminal Appeal Act 1912. Section 8(1) confers a broad discretion to be exercised in accordance with settled principles: The Queen v Taufahema (2007) 228 CLR 232 at 249 [35]. It is appropriate to bear in mind (by reference to the separation of powers) the normal primacy of the prosecution authorities, within the executive government, in determining whether or not to put an accused person, whose first trial had miscarried, up for retrial: The Queen v Taufahema at 281 [144]. In determining whether to grant a new trial, the Court should take into account both the objective seriousness of the offence and the penalty likely to be imposed if the accused were again to be convicted: Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630. A factor which may point against an order for a new trial is whether a significant part of a sentence has been served: The Queen v Taufahema at 256 [55]. 165 The Court was informed that the Appellant had commenced, on 4 May 2007, to serve the sentence of imprisonment (by way of periodic detention) of 18 months with a nine-month non-parole period. The Appellant did not seek bail pending appeal and thus his sentence has continued to run: s.18 Criminal Appeal Act 1912. He has served the non-parole period. This issue ought be approached upon the basis that he has effectively served his sentence. 166 In the circumstances of this case, I am satisfied that the s.8(1) discretion ought be exercised against the making of an order for a new trial, and by entering a verdict of acquittal on the appeal. In reaching this view, I have had particular regard to the objective circumstances of the offence, including the injuries sustained, and the fact that the Appellant has served his sentence. In my view, the interests of justice (The Queen v Taufahema at 257 [55]) do not require a new trial in this case. 167 I agree with the orders proposed by Beazley JA. 168 McCALLUM J: I agree with the reasons and conclusions of Beazley JA in respect of grounds 1(a), (b) and (c) and ground 2 and with the additional comments of Johnson J in respect of those grounds. In respect of ground 3, I agree with Johnson J. I agree with the orders proposed by Beazley JA. **********

HAOUI v Regina

At a glance

Court

Decision date

Before

Source

Judgment (65 paragraphs)

Parties

Cases Cited (22)

Cited By (50)