R v Whitfield

Mr Benjamin Ryan

1. Mr Ryan is a forensic pharmacologist and pharmacist employed by the New South Wales Police Force. Among other qualifications, he has received specialist training in clinical forensic pharmacology and its application to driver impairment. He routinely completes expert evidence reports for submission by the Impaired Driving Research Unit to advise police in relation to Driving Under the Influence of Drugs matters. He has experience giving evidence pertaining to driver impairment for traffic matters in court proceedings. He has been involved in epidemiological research extracting and analysing data to determine how various blood drug levels, signs and symptoms and manner of driving determine driver impairment.
2. Mr Ryan's 21 February 2023 report contains the following opinions: "Opinion My opinion is based upon the above information received from several sources. It is acknowledged that some of the personal details or other details may be inaccurate. 1. When alcohol is consumed, the blood alcohol concentration (BAC) begins to rise (the absorption phase) within minutes of commencing to drink and as soon as alcohol enters the blood stream it is metabolised (broken down) by the liver. However, elimination occurs at a steady rate and if the amount of alcohol being absorbed exceeds that elimination rate, then the BAC continues to rise. After drinking ceases, it will continue to rise normally for a period of 20 to 40 minutes if no substantial meal is consumed during drinking. Food can delay the time to peak, but if the drinking period is over several hours and drinking is at a relatively steady rate, then the peak will still be expected to occur at the end of drinking or around 30 minutes after the last drink. Jones (2010) reports that in a real-world social drinking situation it is reasonable to expect that most of the alcohol a person has imbibed has already become absorbed and distributed in all body fluids and tissues by the end of a drinking spree. 2. From the time drinking commences, the body is also eliminating alcohol and the BAC declines (due to elimination) at a generally steady rate, but which varies between individuals. Human elimination rates of alcohol range from 0.010 grams per 100 mL per hour to 0.025 grams per 100 mL per hour (Norberg et al., 2003), although the generally accepted most likely rate of elimination is considered to be around 0.015 g/100mL per hour in the general population (Jones 2010). 3. The Accused consumed alcohol between 3.30pm and 6pm and consumed some food before the drinking period around 2pm. Based on this history I would expect his BAC to have been at or past his peak at the time of the collision. Thus, based on the BAC detected in his blood sample and rates of elimination, then at the time of the incident the Accused's BAC would have been not less than 0.114 g/100mL with an upper limit of 0.146 g/100mL and a most likely BAC of 0.124 g/100mL. 4. At a blood alcohol concentration of 0.05 to 0.08 grams per 100 mL, a 'social' drinker of any age would be expected to have some impairment of driving ability, in particular in relation to emergency reaction skills and the more complex skills required in the driving task (Moskowitz & Robinson 1988; Arthurson 1985), above 0.08 grams per 100 mL even some general driving skills would be impaired, above 0.10 grams per 100 mL there would be significant impairment of driving ability in all people. 5. There is general impairment of the nervous system as the BAC increases and a person will display impairment of motor coordination (hence, there will be swaying, unsteadiness, staggering, incoordination, increased clumsiness), speech will become slurred, incoherent and confused, there will be impairment of the ability to perceive and process information, make decisions, impaired judgment and impaired reactions. Alcohol being a central nervous system (CNS) depressant drug reduces alertness and decreases attention (McKinney et al., 2012). 6. In a review of 109 scientific studies Moskowitz and Fiorentino (2000) reported on the effects of low doses of alcohol on skills performance. The lowest BAC at which divided attention was impaired was 0.001 to 0.009 g/100mL, the lowest BAC at which choice reaction time and visual functions were impaired was 0.020 to 0.029 g/100mL, and the lowest BAC at which vigilance and perceptions were impaired was 0.030 to 0.039 g/100mL. Furthermore, they reported that the first BAC at which 50% or more of behavioural tests indicated consistent impairment of divided attention was at 0.001 to 0.009 g/100mL, vigilance was at 0.030 to 0.039 g/100mL, perceptions and visual functions were at 0.040 to 0.049 g/100mL, and choice reaction times was 0.060-0.069 g/100mL. … 8. At a BAC of 0.114g/100mL or above, all people would be under the influence of alcohol to the extent that there would be significant impairment of driving ability. Driving ability includes concurrent combinations of cognitive, motor and visual functions such as reaction skills, tracking ability, motor co-ordination, perception, judgment and decision-making, visual scanning and peripheral vision, all of which would be significantly impaired at a BAC of 0.114 g/100mL and above. Navigating a vessel (such as a powered jet-ski) involves many of the skills also required for driving a motor vehicle. 9. Alcohol intoxication can result in inattention and risk-taking behaviour (Van Dyke & Fillmore, 2017; Ogden et al, 2011), partly due to an increase in self- confidence and an impaired perception of ability. Alcohol also produces effects on mood and a person may be more easily influenced by passengers and other factors which distract from driving skills (as indicated above, divided attention is particularly sensitive to the effects of alcohol) (McKinney et al., 2012). An intoxicated person may feel as though they are unaffected, whereas objective assessment of cognitive and psychomotor skills would demonstrate the impairment which is present. 10. Borkenstein et al (1964) established through extensive research that crash involvement significantly increases as the BAC increases, and the relationship is not linear. Compton et al. (2002) confirmed this relationship between BAC and crash risk, reporting that at a blood alcohol concentration of 0.05 g/100 mL the risk of a crash is around 1.4 times greater than at a zero BAC, at 0.100 g/100 mL the risk is round 4.8 times greater, at 0.150 g/100mL the risk is around 22.1 times greater and at a BAC around 0.200 g/100mL the risk is over 81 times greater than at zero BAC. 11. While it is widely accepted that there is significant impairment of driving ability at a BAC of 0.114 g/100mL and above, visible signs of intoxication vary from person to person depending on a person's tolerance to alcohol. The more experienced a person is with alcohol, the more tolerant they become. Generally, a regular, very heavy drinker would not appear as affected to an observer as a non-tolerant drinker (that is, a non-drinker or "social" drinker). Signs of intoxication tend to occur at higher BACs, than the BACs at which there is actual impairment of psychomotor functions (Breakspere & Starmer, 1986). In other words, by the time a BAC is reached at which a person is showing visible signs of alcohol intoxication, there is already significant impairment of skills performance. … 15. At a BAC of 0.114 g/100mL or above there would be significant impairment to navigation of a vessel, particularly with respect to judgment and perceptions, information processing, reaction times, visual functions and motor coordination…".

Dr Pieternal Sonia van Nieuwenhuijzen

1. Dr van Nieuwenhuijzen is a forensic pharmacologist/toxicologist employed by the New South Wales Police Force. She has more than 15 years research experience in psychopharmacology and drug discovery. Among other things, Dr van Nieuwenhuijzen provided two reports dated 28 March 2022 and 18 June 2024, in the second of which she was asked to respond to a series of expert reports served by Mr Whitfield's legal representatives as follows: 1. Professor Jones dated 20 May 2024 2. Tia Gaffney dated 30 May 2024 3. Ben Ryan dated 14 June 2024 4. Richard Budd dated 12 June 2024.
2. In her 2022 report, Dr van Nieuwenhuijzen offered the following opinions: "ASSUMPTION 2. Mr Whitfield was involved in a collision on 24/12/2021 at 19:20. 3. Mr Whitfield had been drinking beer from 15:30 to 18:00 on 24/12/2021. 4. He had been eating food. 5. His blood was taken at 21:30 and returned a blood alcohol level of 0.092 g/100 ml. 6. I have been asked to calculate his blood alcohol level at the time of the collision. DISCUSSION 7. Alcohol gets absorbed through the stomach and intestine, it enters the hepatic vein and goes to the liver. The most important factor in the rate of absorption is whether there is food in the stomach (Posey and Mozayani, 2007). Food delays gastric emptying (Norberg et al., 2003). 8. When alcohol is consumed on an empty stomach, blood alcohol usually does not reach peak value until 20-40 minutes after the last drink, although it can be prolonged to 1 hour (Breakspere and Starmer, 1986; Norberg et al., 2003). 9. When you eat while you are drinking alcohol, the time to reach peak blood alcohol concentration is usually 1 hour after cessation of drinking, and in some cases it can be prolonged to 2 hours (Breakspere and Starmer, 1986; Jones et al., 1997). 10. Alcohol gets eliminated from the body through liver enzymes. The normal range for elimination is between 0.009 g/100 ml per hour and 0.025 g/100 ml per hour. In men the average elimination rate is 0.015 g/100 ml (Norberg e al., 2003). 11. On 24/12/21 at 19:20 Mr Whitfield's maximum blood alcohol level would have been 0.146 g/100 ml, his minimum blood alcohol level would have been 0.089 g/100 ml and most likely his blood alcohol level would have been 0.124 g/100 ml. OPINION 12. At the time of the collision on 24/12/21 at 19.20, Mr Whitfield's blood alcohol level would have been between 0.089g/100 ml and 0.146 g/100 ml. Most likely it would have been 0.124 g/100 ml."

Blood alcohol readings

1. The evidence of both Mr Whitfield's blood alcohol level and that of Mr Thomson was in the form of certificates of analysis prepared by the Forensic and Analytical Science Service ("FASS").

Evidence of speed

1. The evidence of the speed of the jet ski consisted of lay observations of various witnesses to the passage of the vessel at various times up to and including the impact.

The experts' reports

1. Mr Whitfield objected to the reports of Mr Ryan and Dr van Nieuwenhuijzen on the basis that: 1. their evidence could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue (s 55 of the Evidence Act 1995); 2. the probative value of their evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial or be misleading (s 135); and 3. the probative value of their evidence is outweighed by the danger of unfair prejudice (s 137).
2. In expansion of these contentions, Mr Whitfield argued before the trial judge that the opinions of both Mr Ryan and Dr van Nieuwenhuijzen are based on a fundamental assumption which has no evidentiary foundation. That assumption is that Mr Whitfield had been drinking beer between 3.30pm and 6.00pm. In relation to Mr Whitfield's consumption of alcohol, he informed the police that prior to the accident he consumed four and a half cans of beer. He had his first drink at 3.20pm and started his last drink at approximately 6.00pm. Mr Whitfield is likely to have finished this beer by, or at least kept consuming it up to, around 7.00pm. The jet ski journey started at about 7.05pm.
3. Mr Whitfield noted that Dr van Nieuwenhuijzen does not provide any opinion as to the relevance of the back calculation she performed in any way. He submitted that Mr Ryan's opinion as to the degree of impairment of Mr Whitfield's navigation skills was drawn from scientific literature concerning controlled laboratory studies involving rapid drinking of alcohol on an empty stomach, which is productive of pronounced impairment and differs markedly from real world drinking situations where alcohol is consumed steadily over a period of time and consumed after or with a meal, as in the present case.
4. Moreover, Mr Whitfield emphasised that Mr Ryan has no experience with or study concerned with what skills are required in navigating jet skis. He did not refer to any studies, articles or opinions expressed by others relevant to determining the necessary skills or how to assess the crash risks based on the impairment of the skills required to navigate jet skis in particular or watercraft in general. His opinion is solely based on studies of crash risks in relation to the consumption of alcohol when driving a motor vehicle on a road. Mr Whitfield submitted that the expression of any opinion in relation to the skills required to navigate a jet ski, and the impairment of such skills, is outside his area of specialised knowledge and is inadmissible: Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42.
5. Finally, Mr Whitfield submitted that Mr Ryan failed to state how the opinion he formed as to the impairment of Mr Whitfield's navigation skills was relevant to the way in which the Crown contends the collision occurred. For example, Mr Ryan stated his assumption about that as follows: "At about 7.20pm on the 24th of December 2021 the accused, Richard Whitfield, was the skipper/master of a jet ski when the passenger from behind him began playing with the handlebars of the jet ski causing loss of control of the jet ski before the accused and his two passengers [sic] were ejected into the water."
6. Mr Whitfield also submitted that it was dangerous and inappropriate in a case of this character to allow evidence to go forward in a generalised way, particularly where the particulars of the charge do not clarify or describe any particular impairment, let alone any degree of impairment, or show any connection with the impact or the commonly accepted cause of the impact, being Mr Thomson's interference with the throttle and the steering.

Blood analysis

1. Mr Whitfield objected to the evidence of blood alcohol concentrations on a number of bases, including principally the relevance of such evidence.

Speed

1. Finally, informed by the way in which the Crown case emphasised Mr Thomson's interference with Mr Whitfield's control of the throttle and the steering, it was submitted that excessive speed is not part of the manner of navigation attributable to Mr Whitfield by reason of the fact that he was not, on the Crown case, in control of the throttle at the time of the impact. Evidence of speed was therefore said to be irrelevant and should be excluded.

The judgment

1. The trial judge dealt with the evidence of Mr Ryan and Dr van Nieuwenhuijzen in the following terms: "14. The debate concerning the admissibility of these reports has been difficult. That is so primarily on account of a manifest failure on the part of the prosecution to bring any coherent precision to its responses to the accused's repeated requests for particulars of how it is alleged Mr Whitfield's intoxication informs the allegation of navigation in a 'manner dangerous', and particularly insofar as any impairment relating to the impact is concerned. 15. The history of the requests for and purported provision of those particulars is fraught. … 16. That fraught history culminated in the production at 2.30pm yesterday of a single page document expressed to be 'Particulars Concerning Navigating Manner Dangerous'. It has been marked for the purposes of identification as MFI 4. Its presentation was accompanied by the repeated submission that 'these are the particulars as I am instructed to provide, and this is the Crown case'. 17. In a number of respects that document continued the fluid approach that has been adopted by the prosecution to the articulation through particulars of its case, in that it introduced matters not previously apparently relied upon, in particular by reference firstly to speed and, secondly, to continuing to navigate despite Mr Thompson interfering with navigation on multiple occasions before the impact, which is alleged to have distracted Mr Whitfield affecting is concentration and ability to safely navigate. It also develops in apparently new ways, what had previously been considered uncontroversial aspects of the particularisation of the navigate manner dangerous case. 18. Those uncontroversial aspects concern the allegation that it constituted navigation in a manner dangerous for Mr Whitfield to allow Mr Thompson onto the vessel (and possibly also to carry him on the short voyage) in circumstances where Mr Thompson, firstly, was perceived to be highly intoxicated and, secondly, was not wearing a life jacket. 19. The lack of coherent precision, and apparently dynamic content, in the particulars of how Mr Whitfield's intoxication, at whatever level it might be assessed to have been, informs the allegation of navigation in a manner dangerous has not assisted either the accused's understanding of the case he is obliged to meet or my attempt to determine the admissibility of the evidence related to that issue. 20. The most controversial of the evidence is Mr Ryan's attempt to introduce evidence concerning what I will loosely describe as impairment. 21. The whole of that evidence is objected to on what I might respectfully describe as entirely routine grounds, by reference to the requirements of s 79 of the Evidence Act, as they are informed by well-known authorities including HG, Dasreef and Makita. 22. On one view, it appears that the core of the prosecution case, as it relates both to the cause of the impact and intoxication as an aspect of navigating in a dangerous manner, is reflected in the primary assumption provided to Mr Ryan. 23. It is relevantly expressed in these terms: 'About 7:20pm on the 24th of December 2021 the accused … was the skipper/master of a jet ski when a passenger from behind him began playing with the handlebars of the jet ski causing loss of control …' 24. The balance of Mr Ryan's assumptions are represented by observations by various people made either prior to, during, or following the passage which ended with the tragic impact. It is now conceded that some of those observations bear no relationship to Mr Whitfield or the jet ski journey which has given rise to the charge before the Court. 25. After the exposure of those assumptions, Mr Ryan then performs a back calculation, which is criticised as being scant for want of the necessary reasoning which is, by contrast, evident in the reports of Dr van Nieuwenhuijzen and Prof Jones. That notwithstanding, I think there is limited controversy about the expression of his conclusion. Of course, all the back calculations to Mr Whitfield's blood alcohol concentration at the time of impact, and the evidence of the analysis of the blood sample, is rendered irrelevant, if the highly contested evidence as to impairment is inadmissible. There is simply no work for the logically prior evidence thereafter to do. 26. One of the foundational criticisms of the impairment evidence sought to be adduced by the prosecution is that there is entirely absent a prosecution case to the effect that alcohol had any effect by way of decreasing the capacity of Mr Whitfield to repel the interference, which, on any view of it, was, and seems from the content of Mr Ryan's primary assumption to be universally accepted as being, the cause of the impact, namely, the interference with the controls. 27. In his exposition of the so-called impairment evidence, Mr Ryan makes no meaningful attempt to engage with any aspect of the evidence concerning the short voyage, or observations of Mr Whitfield's capacity to steer and control, or to 'navigate', the jet ski, much less to grapple with the cause of the impact, the interference. 28. His evidence is advanced in generalities, directed to summarising, in a bibliographical way, what various studies have concluded as to the nature of impairments observed, predominantly in relation to driving a vehicle, at different levels of intoxication. That exposition is introduced by the assertion that: 'There is a vast base of scientific literature for alcohol induced impairment of skills performance and motor tasks'. He then lists 9 short propositions relating to purported affects [scil, effects] at different levels of intoxication and cites the study said to be the source of the proposition. … 32. There is no apparent attempt by Mr Ryan to reason from the assumptions he is given and to expose a process of reasoning which engages with the expertise for which he is purportedly advanced and to show how that expertise and that reasoning results in the opinion which he proffers. 33. That approach gives rise to considerable jeopardy to a party called upon to confront the evidence. It is a jeopardy which is on any view manifestly unfair. … 36. I confess not to be entirely sure, but it appears to be accepted on behalf of the prosecution that Mr Ryan fails to grapple with any aspect of the evidence in the case and reason in a way that is exposed to an opinion which is transparently one based upon any particular expertise. I think it is also accepted that the gentleman has no demonstrated expertise in the navigation, handling or operation of jet-skis and makes no attempt to reason to support the analogous use of studies involving motor vehicles. 37. In spite of a number of requests from me, I did not understand the submissions for the prosecution in support of the admission of the impairment evidence to grapple with the authorities which inform the requirements of admission of an opinion pursuant to s 79 of the Evidence Act. 38. It appeared to be conceded that Mr Ryan can't, and doesn't in any appropriate way, reason in a way that is exposed to a conclusion based on expertise that engages properly with the facts of this case and, most significantly, with any particulars relied upon as to navigate in a manner dangerous, much less to the accepted cause of the impact, the interference. 39. The so-called impairment evidence is sought to be supported by the submission simply that the prosecution would be entitled to adduce brief evidence on what blood alcohol concentrations are, and what it means in terms of ability and motor functions in a general sense. … 44. Despite my initial thoughts that there might be some middle ground, I am persuaded that it is simply not a solution to the dispute between the parties concerning Mr Ryan's evidence that it should go in for its generalised effect. 45. That would leave the accused to run the risks associated with exposing the gaps in the evidence, for want of exposed reasoning based in expertise and connected to the evidence in the case, and in particular to any specific impairment said to be connected with navigation in a dangerous manner, much less connected to the apparently agreed cause of the impact. It would invite dangerous speculation on the part of the jury. There is also a danger of promoting an instinct to punish because of a belief someone should not be navigating whilst intoxicated. This would necessarily distract attention from whether the prosecution has proved the particulars of dangerousness as they relate to any impact. It would render difficult, if not practically impossible, the formulation of directions coherent enough, for all the reasons articulated by Mr Walker SC in the course of argument, to mitigate any risk of speculation and to resolve without confusion, and unfairly prejudicial risk to the accused, the conflict between imposing some presently unidentified limitations on the use of this evidence and the admonition to consider the whole of the evidence. 46. In my opinion, for the reasons advanced on behalf of the accused, which I have sought briefly to summarise here, I have concluded that the so-called impairment evidence sought to be led through Mr Ryan is inadmissible for want of satisfaction of the requirements for admission of expert opinion evidence pursuant to s 79. 47. Even were it otherwise admissible in its present form, the failure adequately to connect it to any identified particulars of navigating in a manner dangerous and to evidence of observed conduct of the accused has the result that any probative value in the evidence is outweighed in my assessment by the danger of unfair prejudice to the accused and its rejection is mandated by the terms of s 137 of the Evidence Act. 48. Accordingly, I reject the tender of the whole of the evidence of Mr Ryan purportedly directed to the issue of impairment, which is to say all of his evidence save for his back calculation evidence. 49. Without the impairment evidence, there is no work to be done by any evidence of back calculation. Accordingly, I reject the tender of the whole of the evidence of Mr Ryan and Dr van Nieuwenhuijzen."
2. His Honour dealt with the evidence of speed in the following paragraph: "53. Speed has never featured in the particulars advanced prior to yesterday as an aspect of dangerous navigation. A case should not be permitted to go forward on that basis in my view. In any event, I am not conscious that there is any evidence which would properly found such a case."
3. His Honour had previously dealt with the reception of evidence of Mr Whitfield's blood alcohol analysis in an earlier judgment to which he referred at paragraphs 3 to 5 as follows: "3. There were a number of pre-trial matters that required my determination before a jury could be empanelled. 4. One of those matters concerned the admissibility of the results of an analysis of a blood sample which, on the prosecution case, was taken from Mr Whitfield some hours after the incident which gave rise to the charge. 5. On [26 June 2024] I determined that question and did so in the following terms: The accused objects to the admission in the proceedings of evidence of an analysis conducted on 7 January 2022 of a blood sample which, on the prosecution case, was taken from Mr Whitfield at or around 9:30 on 24 December 2021, shortly following the incident which gives rise to the charge on which Mr Whitfield has been arraigned before this Court. Rightly or wrongly, and not without some misgiving, which will reflect in reasons to be later provided, should the necessity arise, I have determined that the appropriate balance of the numerous considerations that inform the various discretionary and other bases upon which the rejection of the material is urged, that I should allow the tender of that evidence. There are two matters at least that potentially flow consequentially from that ruling. First, subject to how he chooses to run his case at trial, Mr Whitfield may choose to agitate as a factual issue, for the jury's consideration, the integrity of the sample. Though sufficient in my assessment properly to allow the evidence to go forward to the jury, the manifestly unsatisfactory state of the evidence as revealed on the voir dire does seem to me to give rise to a potential factual issue in that regard. It may be that the issue is left for a reconsideration or review elsewhere, only in the event that that becomes necessary in the result. However, if it is to be agitated as a factual issue in the trial, there may be a question as to the scope of the evidence by reference to which that issue might be advanced. Subject of course to hearing from the prosecution, and accordingly without having formed a concluded view, I perhaps should indicate a preliminary disposition to the evidence being confined to that which was disclosed pre-trial in accordance with the prosecution's obligations, subject to consent otherwise on behalf of the accused. I will deal with that question, if it becomes necessary to do so, after an opportunity for discussions between the parties and consideration by each of them as to the course to be taken hereafter. … 8. These briefly stated reasons also include my reasons for revisiting and reversing my ruling in relation to the evidence concerning the taking and analysis of the blood sample. My reference in the earlier reasons to the manifestly unsatisfactory state of the evidence relating to the taking and subsequent handling of the sample was informed substantially by the contest between the evidence here and the detail of the evidence apparently relied upon in Riley, one of the cases to which I was referred in the course of argument."
4. After rejecting the evidence of Mr Ryan directed to the issue of impairment at paragraphs 48 and 49 of his judgment, set out earlier in these reasons, his Honour continued: "50. In those circumstances, logic and commonsense dictate that I must revisit my ruling in relation to the tender of the evidence concerning the taking of the blood sample and its analysis. Quite apart from the misgivings I originally had concerning its admission, which have only strengthened in the debate on the admissibility of the expert reports, there is no work to be done for that evidence and it is rendered irrelevant without any connection to admissible evidence of expert opinion concerning impairment. 51. That evidence too is rejected."
5. His Honour dealt finally with the evidence of Mr Thomson's intoxication: "56. On the question of intoxication, reliance is sought to be placed on the analysis of Mr Thomson's postmortem blood alcohol content. To the extent submissions have been made, briefly, as to the admissibility of that evidence, I have concluded that there is no relevant basis for its admission. In so far as navigation in a manner dangerous is concerned, as I remarked in the course of argument, there is no way Mr Whitfield knew, or could have known, the state of Mr Thomson's intoxication scientifically estimated. The evidence relevant to Mr Thomson's intoxication must be confined, for this purpose, to the observations of those who were with him at the relevant time, and nothing more."

Ground 1

1. It may be anticipated that, in the course of Mr Whitfield's criminal trial, the reports of Mr Ryan and Dr van Nieuwenhuijzen will not themselves become exhibits in the proceedings. Rather, on the assumption that the evidence of these experts is not excluded, each expert will give evidence in or to the effect of their written opinions. At the point of doing so it may reasonably be anticipated that clearly objectionable aspects of the written reports will either not be led by the Crown as evidence-in-chief or will alternatively be subject to objection on a case by case basis. For example, Mr Ryan included the following clearly inadmissible opinion in paragraph 15 of his report: "The manner of navigating the vessel by the accused described by several witnesses prior to the incident including "absolutely flying past"…as well as people "mucking around knocking each other off"…would be highly consistent with the disinhibiting effects of alcohol, the typical increases in risk-taking behaviours, and impairment to [sic] judgment and perceptions."
2. By way of contrast, it would be permissible for a witness such as Mr Ryan, with the appropriate expertise, to offer an opinion in general terms about the effect upon co-ordination and motor skills that may be caused by or related to the ingestion of alcohol. Mr Ryan would, in my opinion, be entitled to give evidence in general terms that a person with a particular blood alcohol content may be subject to some degree of impairment in the execution of certain tasks as the result of the effects of alcohol ingestion. It does not seem to me that s 79 of the Evidence Act, or the well-known authorities that considered its implications, preclude Mr Ryan from expressing an opinion about that relationship.
3. Mr Ryan's stated field of expertise is the extraction and analysis of data to determine how various blood drug levels, signs and symptoms, and manner of driving, determine driver impairment. With the benefit of data that are relied upon to establish Mr Whitfield's blood alcohol level at a particular time, Mr Ryan would in my view be entitled to express a valid and admissible opinion about the level of impairment that one might expect to be present in an hypothetical person so affected. On the contrary, Mr Ryan would not be entitled, as a matter based upon his training, education or experience, to comment, or to express an opinion, upon Mr Whitfield's handling or navigation of the jet ski on Christmas Eve or about whether an assumed, or even a proven, state of affairs concerning how the relevant impact occurred was or was not consistent with the blood alcohol content upon which he was asked to comment.
4. In conformity with the cautions offered by Dixon CJ in Clark v Ryan at 491-492, referring to what was said by Williams J in Reg v Silverlock (1894) 2 QB 766 at 769, "[n]o one should be allowed to give evidence as an expert unless his profession or course of study gives him more opportunity of judging than other people." No person may be "qualified as an expert to express his conjectures, which [are] paraded as scientific opinions": per Menzies J in Clark v Ryan at 501.
5. An instructive contemporary analogue can be found in Lang v The Queen [2023] HCA 29 at [469]-[470]: [469] The fact that Dr Ong had not identified such a sequence of events in either a suicide or a homicide caused by stabbing does not mean that his evidence was not based on his expertise and does not mean his evidence lacked a rational foundation. The essence of expertise is the capacity to reason from facts based on specialist training, study, or experience. It is obvious that it is highly unlikely that any case of suicide or homicide reported in the literature will be identical to an actual case which confronts a forensic pathologist. The lack of an identical case of either suicide or homicide does not mean a forensic pathologist such as Dr Ong is incapable of providing an admissible expert opinion. He is entitled to bring to bear all his specialist training, study, or experience to form an opinion without being able to point to an identical or even similar case. It is clear from a fair reading of the transcript of Dr Ong's evidence that the impugned evidence was based on his specialist knowledge and reflected the combined effect of that knowledge brought to bear on multiple facts that he could ascertain only by reason of his specialist expertise: specifically, the single entry wound with no sign of other superficial or smaller hesitation wounds (which are apparent in certain cases of suicide), the lack of any injuries suggestive of a failed attempt at suicide either immediately before the infliction of the fatal wounds or at an earlier time (which are also apparent in certain cases of suicide), together with the multiple internal tracks showing multiple thrusts of the knife into the deceased's abdomen (which are indicative of homicide), as well as the partial withdrawal and rotation of the knife before reinsertion to create three additional internal wound tracks (when multiple stabs are indicative of homicide, and the partial withdrawal, rotation and reinsertion of the knife would have taken time to achieve and involved further pain). [470] The evidence of Dr Ong did not involve merely "putting from the witness box the inferences upon which" the prosecution's case rested: Clark v Ryan at 492. Given his expertise and the underpinning of the impugned evidence, Dr Ong's opinion as to the likelihood of the fatal wounds being inflicted by another person rather than self‑inflicted was not cloaked "with a spurious appearance of authority", and thereby did not involve any risk that "legitimate processes of fact‑finding may be subverted": HG v The Queen (1999) 197 CLR 414 at 429 [44].
6. Mr Whitfield submitted that the reports of what is alleged to have occurred at the time of the impact, and the assumptions made by Mr Ryan based on these reports, are not relevant to any opinion that he can express based upon his expertise. That includes, for example, descriptions of how the jet ski was being operated by Mr Whitfield, and the conditions in which it was being operated, at the time. I agree with that contention. Mr Ryan would not be entitled to comment upon, or to offer a conclusion concerning, Mr Whitfield's role in the events leading up to, or at the time of, the impact, which are matters extending beyond his particular expertise in the analysis of impairment related to levels of intoxication. The criticism of Mr Ryan, that he has no particular knowledge or expertise in the control or operation of jet skis, is not to the point. It will, or at least may, in due course be a matter for the jury to determine whether Mr Whitfield's involvement in the navigation of the jet ski is informed in any way by Mr Ryan's evidence of how blood alcohol levels may impair such an activity.
7. Ground 1 should be upheld.

Ground 2

1. The trial judge rejected the evidence of Mr Ryan upon the further basis that there was also a danger of promoting an instinct to punish because of a belief someone should not be navigating whilst intoxicated. That was a conclusion urged upon, and formed by, his Honour having regard to s 137 of the Evidence Act. That section is in these familiar terms: Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
2. This ground can be easily disposed of. His Honour's rejection of Mr Ryan's evidence was also based upon the conclusion that evidence that Mr Whitfield had been navigating a jet ski in an impaired state by reason of his intoxication would create an unfair prejudice to him which outweighed its probative value. The inference from his Honour's conclusion was that a jury might be unduly and unfairly censorious or judgmental in the context of a case involving the death of Mr Thomson that could arguably be related to Mr Whitfield's state of sobriety. That is what I take to flow from his Honour's reference to "a danger of promoting an instinct to punish because of a belief someone should not be navigating whilst intoxicated".
3. There are at least two difficulties with that proposition. First, it is inevitable in this case that Mr Whitfield's alcohol consumption will be described in evidence by witnesses who the Crown proposes to call concerning the events in the period from at least 2.00pm on the afternoon in question. Mr Ryan's evidence will not singlehandedly introduce the issue of intoxication and on one view may actually clarify matters in a way that is favourable to Mr Whitfield about which the jury might otherwise be inclined illegitimately to speculate. Secondly, it is questionable in any event that alcohol consumption would be viewed in that way by a jury or that it would be after an appropriate direction in usual terms from the trial judge.
4. Ground 2 should be upheld.

Ground 3

1. For the reasons generally given by me in relation to Ground 1, I consider that this ground should be upheld.

Ground 4

1. His Honour concluded that what he described as "the highly contested evidence as to impairment" was inadmissible by reason of the operation of s 79 and/or s 137 of the Evidence Act. As a result, his Honour also concluded that all the back calculations to Mr Whitfield's blood alcohol concentration at the time of impact, and the evidence of the analysis of the blood sample, was rendered irrelevant. His Honour therefore excluded that evidence.
2. As will be apparent, I have concluded that the evidence of impairment is admissible, for the reasons I have given. It does not therefore follow that the trial judge's reasons for rejecting the back calculations to Mr Whitfield's blood alcohol concentration at the time of impact, or the evidence of the analysis of his blood sample, continue to support his decision. This ground should be upheld.
3. However, Mr Whitfield argued before the trial judge that there were a series of potentially other fatal barriers in the path of the reception of that evidence. Those matters were outlined in considerable detail at paragraphs 1 to 23 of Mr Whitfield's OUTLINE OF PRE-TRIAL ISSUES ON BEHALF OF THE ACCUSED.
4. It does not seem to me that his Honour's judgment has dealt with Mr Whitfield's arguments concerning these different matters, such as the admissibility of the three certificates of blood analysis issued by the Forensic and Analytical Science Service, issues concerning what are described as "the cogency of the blood sample", the circumstances in which Mr Whitfield's blood sample was provided, the issues concerning continuity and delay in transportation of the sample to FASS and the question of the integrity of the sample. As I have already noted, the trial judge referred in his earlier judgment to the fact that "Mr Whitfield may choose to agitate as a factual issue, for the jury's consideration, the integrity of the sample". It follows that nothing flowing from my opinion that the Crown has succeeded on Ground 4 of the appeal should be taken as precluding Mr Whitfield from raising these matters at his trial if so advised.

Ground 5

1. Although it is not entirely clear, it would appear that his Honour rejected the evidence of Mr Thomson's blood alcohol concentration upon the basis that it was not relevant. With respect to his Honour, that would appear to fly in the face of his comments in his judgment at paragraphs 18 and 54 as follows: "18. Those uncontroversial aspects concern the allegation that it constituted navigation in a manner dangerous for Mr Whitfield to allow Mr Thompson onto the vessel (and possibly also to carry him on the short voyage) in circumstances where Mr Thompson, firstly, was perceived to be highly intoxicated and, secondly, was not wearing a life jacket. … 54. There is a perfectly coherent case advanced by the prosecution that the alleged navigation in a manner dangerous is constituted by the carrying Mr Thomson as a passenger whilst he was both apparently highly intoxicated and not wearing a life jacket."
2. Without for present purposes commenting upon whether the phrase "navigation at the time of the impact" could extend to include Mr Whitfield's actions in loading or accepting Mr Thomson as a passenger in a high state of intoxication, it is sufficient to observe that his Honour clearly recognised or understood at that time that the Crown proposed to argue that it did. (However, see in this respect [64] below).
3. It may be accepted that Mr Whitfield would not, and could not, have known what Mr Thomson's blood alcohol concentration was when he boarded the jet ski. However, that fact alone does make the technical evidence of analysis irrelevant or somehow otherwise inadmissible. Lay observations about Mr Thomson's state of sobriety will undoubtedly be given at the trial and will equally undoubtedly be the subject of challenge or criticism. I am unable to understand why the Crown ought not to be entitled to rely, if only by way of corroboration of such evidence, upon a scientific assessment of Mr Thomson's level of intoxication. It goes without saying that any available technical objections to the admissibility of that evidence would remain in play.
4. Ground 5 should be upheld.

Ground 6

1. A significant and understandable reason why his Honour rejected the Crown's proposal to rely upon evidence, such as it was, of the speed of the jet ski was because of the lateness with which it emerged as a potential issue. That lateness may well have been related to the fact that, as his Honour observed, he was himself "not conscious that there is any evidence which would properly found such a case".
2. Judge Gartelman had earlier considered the Crown's application to vacate the trial date on 21 June 2024 due to the lateness of service of defence expert reports. In that context the following exchange took place between his Honour and the Crown: "HIS HONOUR: Alright, we don't need to get into that. But can you tell me then, does the Crown allege that the way in which the accused operated the jet ski, aside from the circumstance that he operated it with an intoxicated deceased and himself intoxicated, is there anything about the way in which he operated it that the Crown says constitutes driving in a manner dangerous, such as speed. FLEETON: Your Honour, no, the Crown case has never been averred that there's a speeding aspect. HIS HONOUR: Alright. FLEETON: It's a s 52b(1)(c), which is just manner dangerous, not a manner speeding."
3. However, the following Monday, 24 June 2024, when pre-trial argument commenced before the trial judge, the Crown made the following submission: "… the Crown case was never averred in the sense of a speeding matter, but a manner under section 52B(1)(c) in manner dangerous … but in bringing a case of manner dangerous, doesn't exclude the circumstances that the jet ski was going at speed. Not that it was speeding above a speed limit, because there's simply not sufficient to calculate that. But that speed was a relevant factor combined with, in terms of these circumstances in which the impact occurred. I just wanted to clarify that from the outset". [Emphasis added]
4. Although the Crown sought to clarify its position in this way on what was the first day of the pre-trial hearing, it was not until 28 June 2024 that the particulars of the Crown case extracted above at [4] were finally provided in writing. The ruling by the trial judge that the Crown should not be permitted to rely on speed due to the lateness of the particulars therefore falls to be considered in that context.
5. It seems to me to be important in these circumstances to recognise that the Crown is not alleging that Mr Whitfield navigated the jet ski at an excessive speed, or in the terms of s 52B(1)(b), at a "speed dangerous". It is inevitable, however, that the speed of the vessel will be the subject of evidence at some time and in some form in the course of the trial Indeed, I perceive that Mr Whitfield proposes at trial to promote a contention that the manner in which his control of the vessel was overborne by Mr Thomson included taking control of the throttle, with the result that the speed of the vessel increased and remained almost uninterrupted until the point of impact. Having regard to the fact that the Crown will allege, and Mr Whitfield has long been aware that it will allege, that Mr Thomson succeeded in securing control of the vessel by reason of Mr Whitfield's antecedent failures, specifically in allowing an intoxicated passenger to ride on the craft, thereby allegedly amounting to a dangerous manner of navigation, his Honour's rejection of any evidence of speed was erroneous. The speed of the jet ski will be a central part of that inquiry, even if, or on another view precisely because, Mr Whitfield was not relevantly in charge of the throttle at the time of impact.
6. Ground 6 should be upheld.

Conclusion

1. It follows that all grounds of appeal should be upheld.

Comment

1. The transcript of the pre-trial hearings before both Judge Gartelman and the trial judge bear witness to a significant amount of frustration on the part of Mr Whitfield's legal representatives in their attempts to understand, and to have the Crown explain and particularise, just what was the case that Mr Whitfield would be required to meet. By the time the matter concluded before the trial judge on 28 June 2024 and in the way it was conducted in this Court, it was plain enough that the Crown case was to be that Mr Whitfield "navigated" the jet ski in a manner dangerous by permitting an intoxicated passenger onto the vessel, who ultimately took control of the steering and the throttle, thus causing or contributing to the impact.
2. For example, Senior Counsel for the Crown effectively concluded his remarks in this Court with the following concession: "So there would at least be an inference that he [that is, Mr Thomson] did something to the steering or the throttle, and I think the Crown conceded that in that context, it could never exclude that it was at least a contributing factor [to the impact]".
3. Having regard to the following exchange that occurred thereafter, if not for reasons otherwise, the parties appear to be in furious agreement about the fact that Mr Thomson played a significant role in what happened: "WALKER: There is something I just wanted to raise. I just want to lay to rest something. Your Honours will recall Judge Whitford's paragraph 23 at appeal papers 18 which drew to attention the relevant assumption made by Mr Ryan, obviously on instructions from the Crown. HARRISON CJ at CL: Page 18 of the appeal book? WALKER: Yes. HARRISON CJ at CL: And the paragraph is? WALKER: 23, and it quotes from Mr Ryan's report the assumption made. Your Honours have heard some expression about the Crown not being willing to go beyond the possibility of a contribution by Mr Thomson, 'Passenger from behind him began playing with the handlebars of the jet ski causing loss of control'. We still understand, as his Honour Judge Whitford understood, that's the particularised case."
4. It also appears now to be the case that the Crown does not contend that Mr Whitfield's state of intoxication somehow operated to impair his ability to repel Mr Thomson's efforts to take control of the jet ski: "WALKER: … And we still don't know. And I continued to ask, we don't know if you are saying, he should have been able to repel his friend's interference. It is now pretty clear by repeated and eloquent silence the Crown is not saying that. They are not going to say that our client was blameworthy because he could not repel the advance by reason of his being impaired by alcohol, or by reason of him being too weak in a reprehensible fashion. That apart from being utterly unrealistic and ungracious, that is not the case. ADAMS J: Sorry, can I just stop you there, Mr Walker. Are you saying it's not the case because that hasn't been put today, or that it can be found. WALKER: It has never been put. Never been put. It has never been put that alcohol prevented him, reprehensibly prevented him from being able to push the man back, and keep a steady course and a proper speed. Never said. Now, the record, alas, is full of toing and froing by the Crown about whether there was an interference, and if so, whether it was the deceased's interference. It is pretty plain now, not least because of… ADAMS J: I thought it was common ground now that that is the mechanism. WALKER: No. I wish I could say so, your Honour. I wish I could say so. But yes, we are treating it as that, and we are entitled to treat it as that, that the cause of the impact was the interference."
5. Nothing was said by the Crown in reply to contradict or qualify the effect of Mr Walker's submission.
6. Part of the difficulty in fairly assessing the Crown's grounds of appeal flowed in my opinion from the possibly underlying assertion or tacit acceptance of the proposition that Mr Whitfield was "navigating" the jet ski "at the time of the impact" when he permitted Mr Thomson to board the craft while intoxicated and without a life jacket. For my part, I find it difficult to conceptualise how the act of navigation could be constituted by, or could even include the fact of, allowing a passenger, in whatever state of sobriety, to board or to continue to remain upon the jet ski. It seems to me that that could no more be an act of navigation in a manner dangerous than permitting a passenger to ride in a car in an intoxicated state without a seatbelt could be considered to be driving in a manner dangerous. The fact that other offences may in each case have been committed is not to the point. Moreover, it would presumably only be of relevance as evidence of the charged offence if it continued, or was continuing, "at the time of the impact". In that last respect, if Mr Thomson were in control of the throttle and the steering at that time, as the parties agree he was, it is equally hard to understand how Mr Whitfield could have been simultaneously navigating the vessel when the two most significant indicia of that enterprise, if not in fact all the indicia, had at that time been wrested, even if only temporarily, from his control.
7. DAVIES J: I agree with Harrison CJ at CL. I also agree with the additional remarks of N Adams J.
8. N ADAMS J: I agree with Harrison CJ at CL. Although all six grounds of appeal should be upheld for the reasons provided, I agree with his Honour that there are considerable difficulties with the Crown case as now particularised.
9. The Crown case is that it "could never exclude" that the actions of the deceased were "at least a contributing factor" to the impact (see above at [62]). Further, the relevance of Mr Whitfield's intoxication is now confined to his acts of navigation prior to the time that the deceased interfered with the controls (as identified by Harrison CJ at CL above at [64-65]).
10. It is important to note that the Court's role in this interlocutory appeal was to consider whether error had been established in the reasons provided by the trial judge for excluding the evidence of Mr Ryan, Dr van Nieuwenhuijzen, the Blood Alcohol Content of both the accused and the deceased and reliance on speed. The court was not invited to rule on, for example, whether permitting an intoxicated person on board constitutes an act of dangerous navigation (the issue identified by Harrison CJ at CL above at [66]).
11. Despite the difficulties with the Crown case as now particularised, I agree with Harrison CJ at CL that excluding the evidence the subject of this appeal substantially weakened it.

Amendments 23 July 2024 - Paragraphing DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2024