R v Whitfield

1. [1]

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

2. [2]

   The charge arises from a jet ski accident which occurred at approximately 7:20 pm on 24 December 2021 on Port Hacking. The accident resulted in the death of Aaron Thomson who was a passenger on the jet ski.

3. [3]

   Section 52B(1) of the Act provides as follows:

4. [4]

   It is somewhat unfortunate that the Crown did not finally particularise its case until 28 June 2024 upon which date the trial judge published his judgment containing a series of evidentiary rulings which are the subject of the present appeal. Those particulars are as follows:

5. [5]

   It becomes essential for present purposes to understand precisely the case that the Crown seeks to prove against Mr Whitfield. That case necessarily represents the framework against which the correctness or otherwise of the trial judge’s evidentiary rulings is to be considered. Clearly enough, in order to establish an offence against s 52B(1)(c), the Crown will have to prove that

   1. (1)

      the jet ski was involved in an impact,

   2. (2)

      occasioning the death of Mr Thomson,

   3. (3)

      being navigated by Mr Whitfield,

   4. (4)

      at the time of the impact,

   5. (5)

      in a manner dangerous to another person.

6. [6]

   Section 52B(8) should also be noted:

7. [7]

   That understanding of the Crown’s case is assisted by the summary which it offered to the trial judge after Mr Whitfield was arraigned:

8. [8]

   In clarification of that description of the Crown case, Mr Walker of Senior Counsel for Mr Whitfield emphasised in response to his Honour that it was “common ground” that Mr Thomson had in fact leant forward and interfered with or handled the throttle and the steering “in such a way as to lead to acceleration, at least in one phase, and change of direction”. Mr Walker continued:

9. [9]

   His Honour would appear clearly to have been of the same understanding, as the following paragraphs from his judgment containing his evidentiary rulings under appeal demonstrate:

10. [10]

    Even though the Crown alleges only that Mr Whitfield was navigating the jet ski in a dangerous manner at the time of the impact contrary to s 52B(1)(c), its particulars reveal that the Crown proposes as part of its case to rely upon Mr Whitfield’s level of intoxication and the speed at which the jet ski was travelling as matters supporting proof of that charge.

11. [11]

    In order to prove that Mr Whitfield was intoxicated and that his intoxication contributed to the manner in which he navigated the jet ski, the Crown sought in part to rely upon scientific evidence from two experts. First, Mr Benjamin Ryan, a pharmacologist. Secondly, Dr Pieternal Sonia van Nieuwenhuijzen, a Forensic Pharmacologist/Toxicologist. The Crown also sought to tender evidence of the blood alcohol levels of both Mr Whitfield and Mr Thomson. Finally, the Crown sought to rely upon evidence of the speed of the jet ski as a particular of the allegedly dangerous manner in which Mr Whitfield navigated the craft.

12. [12]

    Mr Whitfield opposed the receipt of this evidence. On 28 June 2024, the trial judge excluded it all.

13. [13]

    The Director of Public Prosecutions now appeals against his Honour’s rulings pursuant to s 5F(3A) of the Criminal Appeal Act 1912 upon the following grounds:

14. [14]

    An appeal brought under s 5F(3A) against a decision or ruling on the admissibility of evidence, can only be brought if it "eliminates or substantially weakens the prosecution's case". Mr Whitfield contended that the probative value of the excluded evidence is "insignificant" in the assessment of the facts going to the manner of the alleged dangerous navigation "as particularised". As will be apparent from what follows, it cannot in my opinion be said that the trial judge’s exclusion of the evidence would not substantially weaken the prosecution case.

The challenged evidence

1. [15]

   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. [16]

   Mr Ryan’s 21 February 2023 report contains the following opinions:

3. [17]

   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. (1)

      Professor Jones dated 20 May 2024

   2. (2)

      Tia Gaffney dated 30 May 2024

   3. (3)

      Ben Ryan dated 14 June 2024

   4. (4)

      Richard Budd dated 12 June 2024.

4. [18]

   In her 2022 report, Dr van Nieuwenhuijzen offered the following opinions:

5. [19]

   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”).

6. [20]

   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.

Basis of objection

1. [21]

   Mr Whitfield objected to the reports of Mr Ryan and Dr van Nieuwenhuijzen on the basis that:

   1. (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. (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. (3)

      the probative value of their evidence is outweighed by the danger of unfair prejudice (s 137).

2. [22]

   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. [23]

   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. [24]

   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. [25]

   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:

6. [26]

   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.

7. [27]

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

8. [28]

   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. [29]

   The trial judge dealt with the evidence of Mr Ryan and Dr van Nieuwenhuijzen in the following terms:

2. [30]

   His Honour dealt with the evidence of speed in the following paragraph:

3. [31]

   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:

4. [32]

   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:

5. [33]

   His Honour dealt finally with the evidence of Mr Thomson’s intoxication:

Consideration

1. [34]

   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:

2. [35]

   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. [36]

   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. [37]

   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. [38]

   An instructive contemporary analogue can be found in Lang v The Queen [2023] HCA 29 at [469]-[470]:

6. [39]

   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. [40]

   Ground 1 should be upheld.

8. [41]

   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:

9. [42]

   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”.

10. [43]

    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.

11. [44]

    Ground 2 should be upheld.

12. [45]

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

13. [46]

    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.

14. [47]

    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.

15. [48]

    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.

16. [49]

    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.

17. [50]

    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. [51]

    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).

19. [52]

    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.

20. [53]

    Ground 5 should be upheld.

21. [54]

    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".

22. [55]

    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:

23. [56]

    However, the following Monday, 24 June 2024, when pre-trial argument commenced before the trial judge, the Crown made the following submission:

24. [57]

    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.

25. [58]

    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.

26. [59]

    Ground 6 should be upheld.

Conclusion

1. [60]

   It follows that all grounds of appeal should be upheld.

Comment

1. [61]

   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. [62]

   For example, Senior Counsel for the Crown effectively concluded his remarks in this Court with the following concession:

3. [63]

   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:

4. [64]

   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:

5. [65]

   Nothing was said by the Crown in reply to contradict or qualify the effect of Mr Walker’s submission.

6. [66]

   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. [67]

   DAVIES J: I agree with Harrison CJ at CL. I also agree with the additional remarks of N Adams J.

8. [68]

   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. [69]

   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. [70]

    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. [71]

    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.