The Queen v Meredith[1998] QCA 56

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 446 of 1996

Brisbane

[R. v. Meredith]

THE QUEEN

v.

BRYCEN JOHN MEREDITH

Appellant

Fitzgerald P

McPherson JA

Williams J

Judgment delivered 3 April 1998

Separate reasons for judgment of each member of the Court; each concurring as to the order made.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS: CRIMINAL LAW - intoxication - expert evidence - admissibility - whether expert qualified to give opinion on likelihood of formation of intent - whether any field of expertise on final issue of intent - whether sufficient evidence of intoxication to found expert opinion. 

Hawkins v. R. (1994) 179 C.L.R. 500

R. v. Barnes (C.A. 421 of 1994, unreported, 15 February 1995)

R. v. Wilson (C.A. 200 and 333 of 1996, unreported, 12 August 1997)

Counsel:  Mr S. Hamlyn-Harris for the appellant.

Mrs. L. Clare for the respondent.

Solicitors:  Boe & Callaghan for the appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date:  2 March 1998

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 3 April 1998

The appellant has appealed against his conviction of the murder of John Brian Shuttleworth, whom he stabbed and unlawfully killed on 18 August 1994.  As a result of admissions made on behalf of the appellant at his trial, the only fact of which the jury was required to be satisfied beyond reasonable doubt by evidence was that, when he killed Mr Shuttleworth, the appellant intended to kill him or cause him grievous bodily harm.^[1]

There was an abundance of evidence to prove such an intention as an inference^[2] from the surrounding circumstances, as well as admissions by the appellant of an intent to kill.  This appeal is concerned with the Trial Judge’s refusal to permit the only defence witness, a medical practitioner, Dr Brian Purssey, to give certain evidence with respect to the effect of alcohol upon the existence of the specific intent of the appellant which the prosecution had to prove beyond reasonable doubt.^[3]  Her Honour recognised that some opinions of a properly qualified witness based on an appropriate evidentiary foundation were admissible on that issue,^[4] and substantial evidence was given by Dr Purssey following a voir dire and extensive argument.  According to the appellant, Dr Purssey could have given additional material evidence, which was wrongly excluded.

The evidence of the appellant’s consumption of alcohol during a period prior to his unlawful killing of Mr Shuttleworth consisted of statements made by the appellant to police officers and the evidence of a witness, Ms. Pidgeon, who saw the appellant consume all but approximately 2" of the contents of a bottle of port prior to 11.30 p.m., and perhaps as early as 9.30 to 10.45 p.m., on 17 August 1994.  Ms Pidgeon described the appellant’s speech at that time as somewhat “slurry”.

Subsequently, the appellant went to Mr Shuttleworth’s house, which he was seen leaving at about 6.15 a.m. on 18 August 1994.  A pathologist, Dr Zillman, gave evidence that he had “no way of knowing” the time of Mr Shuttleworth’s death, but that it was “probably at around 6.00 a.m.”.

After leaving Mr Shuttleworth’s home, the appellant travelled by taxi to a location approximately three blocks from his own residence, walked the remaining distance and, when he arrived, changed his clothes.  He and a friend then travelled into the city and caught a 7.30 a.m. bus to Maroochydore; the person who sold them the tickets described the appellant and his friend as apparently “in a pretty good mood”, without any indication of intoxication or anything else “out of the ordinary, unusual”.

In a signed statement given to police on 20 August 1994, the appellant, who at that time denied that he had killed Mr Shuttleworth, made mention of drinking only one bottle of port.  A little later, he admitted the killing, which he then claimed was an accident.  In the course of subsequent interviews and visits to his residence and Mr Shuttleworth’s home, he said that he had consumed not only the port observed by Ms Pidgeon but also one or more “stubbies” of beer on that occasion, another bottle of port earlier that night commencing at about 6 p.m., and, later, between the second bottle of port and the killing, “a few bourbons”, “a few rums” and “a few beers”.^[5]

Dr Purssey is a Bachelor of Medicine, Bachelor of Surgery, Fellow of the Royal College of Surgeons, Fellow of the Royal Australasian College of Surgeons, and Associate of the College of Health Services (Executives).  He first qualified as a medical practitioner in 1951.  He is registered in Queensland as a specialist in both general and orthopaedic surgery, but has not practised orthopaedic surgery for some years.  He has had very extensive medical experience, including hospital and academic appointments.  Since 1992, his work has consisted of assisting in surgical procedures in operating theatres, lecturing medical students in surgery, and providing reports for medical/legal purposes.

From 1968 to 1974, Dr Purssey was an Assisting Government Medical Officer, and, in that role, carried out what he estimated to be approximately 4,000 breathalyser tests.  As a result, he developed an interest in, and researched, the effects of alcohol on the human body, and “in particular, the central nervous system, the brain”.  That, and the following passages are taken from evidence given by Dr Purssey on the voir dire.

Dr Purssey stated that he had “prepared innumerable reports for medico/legal purposes”, and had given evidence in courts on a number of occasions.  Although he now consults textbooks infrequently, Dr Purssey said “... I go to the journals because the journals provide more up-to-date information of what people are investigating”.

The final passage in Dr Purssey’s evidence in chief concerning his qualifications is as follows:

“Have you kept up to date with the effects of alcohol on the human body and particularly, the effects of alcohol upon the central nervous system?‑‑   I feel I have because I feel I have had to keep up to date to provide adequate reports in this regard.

Is that at this stage a topic ‑ the effects of alcohol on the human body and particularly, on the central nervous system, is that now a discrete scientific body of knowledge in your opinion?‑‑   I think you might call it that. It's a very difficult thing.  It's like a specialisation, Your Honour.  It is becoming almost as though you are going to be a doctor of the right thumb or something like this.  So, I think it is.  When you now have at least one journal which is purely related to this subject, to the effect of alcohol on the human body, I think it is becoming that.  It is a body of knowledge and it is a body of knowledge that everybody has knowledge of.

As a result of those qualifications that you have outlined to Her Honour, do you regard yourself as competent, first of all, to give evidence on the blood alcohol content of the average person following the ingestion of stated quantities of alcohol?‑‑   I do.

The effect of that on or the effects of that upon the whole human body?‑‑ Yes, although my interest has largely been the effects of alcohol on the central nervous system.

That's the cerebral functioning?‑‑  Cerebral functioning of the brain.

Why has your interest been in that area, doctor?‑‑ Well, it is because of the effect of alcohol on the brain that the person loses the ability to do things which I have been interested in, namely, in particular, the control of motor vehicles but also in any other aspect of human endeavour which requires using the critical functioning of the brain.

Do you then regard yourself as competent to give evidence of the effect of stated quantities of alcohol upon the cerebral functioning?‑‑   I do.

Is there any slide rule method which can apply to every person or is it in a range?‑‑ Everything is in a range.  There is nothing black and white about the human body in general and about the effects of alcohol or any other substance on the human body.  There is a variation from person to person.

Taking into account those variations from person to person can you ‑ do you feel yourself confident to give your opinion on the likelihood?‑‑  That's all I can give, likelihood. I can't say something is definitely one or the other.  I will give my opinion on what I think is most likely.”

Dr Purssey then gave evidence on the voir dire that he had read the evidence of the prosecution witnesses (except that of Dr Zillman and a small, presently immaterial part of the evidence of Ms Pidgeon).  He had read a statutory declaration by Dr Zillman, which it was agreed was to the same effect as his evidence.  He had also read transcripts of the videotapes and the audiotape.  He had also read the appellant’s original statement to police on 20 August 1994 and a statement by the person who had seen the appellant leave Mr Shuttleworth’s home at about 6.15 a.m. on 18 August 1994, who had died prior to the appellant’s trial.

Dr Purssey’s evidence in chief on the voir dire continued as follows:

“MR CUTHBERT: Having regard to that material that you've seen  and read, and assuming that what the accused said on the tape, namely that he drank a bottle of port in his own room, then went and drank most of another bottle of port and the witness Pidgeon said, well, a small glass was consumed by the man Ashcroft, then assuming further ‑ assuming that that is correct, and that further that he drank, as he said in the video, a few rums and a few bourbons and some beer at a hotel after consuming the second bottle of port, and further assuming that he drank more at Lilley Street, and the precise amount is unknown, but there appears to be three and a half stubbie bottles consumed, but he was there and he says he was drinking and he says the other man also was drinking.  We know that from the police evidence three and a half bottles were consumed.  Having regard to that evidence and on the assumption that it is correct, are you competent to give an opinion as to his likely blood alcohol content, say, between 12 midnight and 6 a.m.?‑‑ I consider I am.

MR RIDGWAY: Can I clarify?  Is that question being asked of the accused in particular or of the average adult male that the doctor referred to a moment ago?

MR CUTHBERT: I am asking it of the accused.  Could you give it first of all in relation to the average adult male?‑‑ Yes.  I could give it in relation to an average adult male and also any other particular size of person or sex of person that you wish to nominate.

Do you regard yourself as competent to give that likely blood alcohol content in relation to this particular accused?‑‑  Yes.

That is on the basis that those assumptions are correct?‑‑ Yes.

Further, do you regard yourself as competent to give an opinion as to whether, first of all, an average person with a blood alcohol content in that vicinity would have been capable of forming a specific intention?‑‑ I do not feel that anybody can get inside anybody else's mind and say whether they can form an intent or not.  I do feel competent to say what I feel is the likely effect of that level of blood alcohol on the cerebral functioning of that person which may severely disturb that function.

Do you feel competent in giving an opinion as to whether such disturbance of cerebral function would affect the ability to form a rational intent?‑‑ Yes.

And, once again, that is put on the basis of a likelihood?‑‑  That's all.  That's all I think anybody can do.

I want to carry it the one step further.  Do you feel that you are competent to give an opinion ‑ a specific opinion as to whether or not the accused was capable of forming a specific intent?‑‑  Only on the same basis as I've already stated.

What is that basis?‑‑ Namely that it is not definite.  I can give a likelihood, that is all, in that the accused would, according to my estimation, have a blood alcohol within a certain region and I feel that ‑ if it is in that region I feel competent to be able to say whether the cerebral functioning would be grossly disturbed to the extent that it could interfere with forming an intent.

The specific intents we are concerned with here, doctor, are those involved in murder.  Are you aware of those?  That is the intent, the specific intent to kill or the specific intent to cause grievous bodily harm. Does your competence extend to giving an opinion in relation to the accused forming those specific intents?‑‑ I feel there is little difference there from any other intent.  We are talking about the effect of the functioning of the human brain.

I am not going into the nature of the doctor's evidence, Your Honour.  I have confined it to qualifications.

HER HONOUR: Yes, thank you, Mr Cuthbert.

In cross-examination of Dr Purssey on the voir dire, the prosecutor sought to distinguish between “a rational intent” and “an intent in the legal sense”.  In a lengthy question, Dr Purssey was asked whether he “would equate the intention whether rational or otherwise ... to do a specific act, say, cause death, by a physical act ... with a particular ability to, for example, appreciate the nature of the act”.  The question continued:

“... Would you say that on the one hand if on your assessment of the central nervous system functioning there resided or remained an ability not substantially diminished, an ability to appreciate the nature and quality of the act involved, would you equate that, or do you equate that with the formation of an intent?”

Dr Purssey answered:

“... I think so, but the thing is ‑ what I'm talking about is what is happening in a person's consciousness.  In other words, what they know of what they are doing and what is going on.  Whether or not this is what you mean by an intent I am not sure, but all I'm saying, and as you can see from my report, I'm saying that you have ‑ where you have a grossly disturbed higher functioning of the brain the actual consciousness may not be registering on what is going on.”

After a short lecture to Dr Purssey on what courts expect of expert witnesses, the prosecutor continued:

“I'm asking you to point to the source of the independent scientific knowledge which allows you to draw as a matter of scientific certainty correlations between particular central nervous system functioning levels and capacities to form the intent.  What is the scientific basis for it, the experimental basis for it, what is it? --”

Dr Purssey answered:

“There are ‑ much has been written and investigated on the effects of alcohol and other drugs on the central nervous system and anaesthetics.  We are dealing with a depressant drug that is acting on the central nervous system that is going to stop its normal functioning.  I know of nothing that actually, and I cannot remember having read where the word ‘intent’ has appeared ‑‑‑‑‑.”

Dr Purssey was interrupted by the prosecutor, apparently because of a misunderstanding and then continued:

“... I will have to go back on what I was saying then.   What I'm trying to say is that the brain is affected by many things and there have been many investigations made of these.  Unfortunately you are unable to scientifically measure such things as intent.  There is no way that this can be done.  The effect can only be assessed by relating it to other functions and, as I say, I have not seen that word used in any journal I've read.”

Later, after exchanges of no present significance, Dr Purssey said:

“... All I can give is the effect of a given level of this substance, alcohol, on the central nervous system and I can extrapolate from that to say, well, it is going to be so disturbed that the odds are one way or the other, but I can't say that a person cannot form an intent with this level.  There is no way in the world I or anyone else could say that.”

Further questions asked of Dr Purssey elicited that he did not “purport to possess or practise any of the skills of a psychologist or psychiatrist”, and that he “wouldn’t be in a position at an expert level” to comment on “the synergy between alcohol and disturbance of the mind”.

Under questioning by the Trial Judge, Dr Purssey said that he had not only conducted breathalyser tests while an Assisting Government Medical Officer.  On the contrary, he said:

“... we had to observe the physical indicia because this is the time that the change was occurring between when the police brought drivers in for being apparently under the influence of alcohol and the control of the motor vehicle to using scientific measures of the level of blood alcohol which affects again the higher levels of the brain which doesn't show in ordinary observations, but we were required to relate the two together and I made notes of every single person I saw  at that time ‑‑‑‑‑”

Later, the following questions and answers were asked and given:

“I take it since the time when you ceased being the Assistant Government Medical Officer, when your other duties took you elsewhere, that you have maintained an interest in the topic by your reading?‑‑ That is correct.

That is really the level at which you would put your expertise nowadays; is that the case?‑‑ Yes.  I have continued and maintained my ‑ well, not an interest, but I have studied the subject, but as far as writing papers on this is concerned or being involved with any unit doing investigatory work, no, I have not been involved in that.”

In re-examination, it emerged that Dr Purssey had continued to read “the literature”, prepare reports and give evidence “”[a]s to the effect of alcohol about the cerebral processes”, “consistently”, “since ... 1974”.

The appellant’s trial counsel’s submission was that Dr Purssey was qualified to give evidence as to:

1. “the effect of the ingestion of given quantities of alcohol upon the blood alcohol content of the average person”;

2. the effect of the ingestion of a given quantity of alcohol upon the accused; that is, the likely effect ...”;

3. “the [likely] effect of that blood alcohol content on the cerebral processes ...”

1. “of the ordinary man”, and

2. “on the accused”; and

4.  (a) “the likelihood of the formation of a rational intent of a person with a blood alcohol content of a given amount”, and

2. “the likely ability of the accused to form that intention with a given alcohol content”.

Counsel indicated that Dr Purssey would be relying on the evidence to which reference has earlier been made and that he would “be putting to him the conduct of the accused ... before, during and after the events ...”.

In her ruling at the conclusion of the voir dire, the Trial Judge said:

“... In terms of medical expertise, I would have some difficulty in accepting Doctor Purssey as an expert in the way in which that has been described in the various cases, apart from the area which has been identified by Mr Ridgway that he says that he has no difficulty about; that is, of course, his expertise to calculate blood alcohol after the consumption of alcohol in the average person and its effect on the central nervous system mentioning, of course, that it is a matter over which there can be a range of responses.  I am not persuaded that he has demonstrated that he has, other than that, any expertise, even if it were relevant to the inquiry in hand in this trial.  He has no pretensions at all to any expertise in the field of psychiatry or behavioural psychology or, as I understood his evidence, in the field of anaesthetics which involves an understanding of the effect of various chemicals upon the brain and the central nervous system.

Mr Cuthbert wishes to ask Doctor Purssey these ranges of questions: that given the ingestion of given quantities of alcohol, what might be the effect on the average person's cerebral functioning; and, also, what would be the effect of the consumption of alcohol, which the jury may or may not accept the accused ingested at the relevant time, upon the accused.  Mr Cuthbert also wishes to ask Mr Purssey the effect of the ingestion of those quantities of alcohol upon the capacity of the average member of the community (adult male) to form a rational intention; and then, the likelihood of the accused being able to form that intention. I have no doubt that the last of those questions relating both to the question of the capacity of members of the community at large or of the accused to form an intention to do something is, first, not within the range of Doctor Purssey's expertise and, even if he had in some way managed to qualify himself, it would not be a proper question for inquiry in a case of this kind. ...

The question of how intention, as understood by the law, occurs has certainly not been established to my satisfaction to be the subject of a body of scientific knowledge in respect of the consumption of alcohol and even more certainly, Doctor Purssey does not, in my view, possess that expertise.

...

... I am of the view that a suitably qualified  expert may give evidence where the possible ingestion  of alcohol is in quantities which may well be outside the usual experience of the ordinary members of a jury.  In this particular case, the highest for the accused man is that he consumed almost two full bottles, 750 ml bottles of fortified port wine, had some beer and had some spirits, rum and bourbon, prior to stabbing the deceased man.  In those circumstances, I am of the view that the jury may be assisted to learn what effect the ingestion of that quantity or perhaps lesser quantities of alcohol would have upon the physical functioning of an individual.

I would rule that Doctor Purssey may give that kind of evidence, if it is desired by Mr Cuthbert to lead that evidence from him, but that he is neither qualified nor may give evidence relating to the formation of rational intention, to use Doctor Purssey's expression, or any other functioning of the mind which could lead to any conclusions about his capacity to form the legal intention the subject of this inquiry.”

That ruling was modified in an ensuing discussion with the appellant’s trial counsel, which was as follows:

“MR CUTHBERT: I am not quite clear, Your Honour.  Doctor Purssey can give evidence of the likely blood alcohol content of a person who has consumed the stated quantity of alcohol, may he relate that specifically then to the accused?

HER HONOUR: I don't think so.  There doesn't seem to me to be any basis for him for doing so.  He hasn't examined the accused.  He has seen him on the video, it is true, so I think the limit to which he could go is simply say a man of a particular stature and the jurors can make their own assessment about that.

MR CUTHBERT: Can he say a man of particular size of the accused because ‑‑‑‑‑

HER HONOUR: That's always a factor, I think, because when he is talking about  the average male, when he gives those figures, and they will be derived from them, he will say it is adjusted up or down with respect to the size.

MR CUTHBERT: As I understood Your Honour's ruling, he can give evidence of the effect of that on the cerebral functioning of the average person?

HER HONOUR: ... it is not objected to by the Crown, he is qualified to deal with that.

...

MR CUTHBERT: That is in relation to the average  ‑‑‑‑‑

HER HONOUR: Yes.

MR CUTHBERT: ‑‑‑‑‑ person. May he relate that then to the accused?

HER HONOUR: No.

MR CUTHBERT: He is not then, or the restriction further then extends to any question of formation of intent?

HER HONOUR: Yes.

MR CUTHBERT: He is able to give evidence, Your Honour, that with a blood alcohol content of that amount, that size it is likely a person's reasoning processes would be confused without referring to any question of intent.  That is the cerebral processes, Your Honour.

HER HONOUR: I suppose what he will have to do is deal with the various levels of cerebral process.  That is as I understand it from previous occasions him giving evidence, that he will deal with it at three levels lower processes, medium processes and higher processes which relate to what we would probably call mental functioning.  As I understand it, his expertise to deal with those sorts of matters is not challenged.

MR CUTHBERT: I think I understand then.

HER HONOUR: So that there will be effects on the eyes, for example, with a particular level of alcohol, muscular control, those sorts of things, and he will probably deal with planning capacity, capacity to plan, but my ruling is that at no time can he relate it to this particular accused.

MR CUTHBERT: Very well, Your Honour, I shall do my best.”

The appellant’s grounds of appeal, which his written outline of argument related only to the Trial Judge’s ruling at the conclusion of the voir dire, were as follows:

“1. That the learned Trial Judge erred in law in ruling the effect of the consumption of alcohol upon the capacity of a person to form an intention was not the subject of a body of scientific or expert knowledge.

2. That the learned Trial Judge erred in law in ruling that Dr Brian Purssey was not sufficiently qualified to give expert evidence regarding the capacity to form an intention of a normal, adult male, or the appellant, with a given blood alcohol concentration.

3. That the learned Trial Judge erred in law in not admitting evidence as to the capacity of a normal, adult male person with a given blood alcohol concentration to form an intention.

4. That the learned Trial Judge erred in law in not admitting evidence as to the capacity of the appellant with a given blood alcohol concentration to form an intention.

5. That the learned Trial Judge erred in law in not admitting evidence from Dr Purssey as to whether his opinion that a person with a blood alcohol concentration in the vicinity of 0.35% would have grossly disturbed brain functioning would be the same having regard to evidence as to the conduct of the appellant subsequent to the stabbing.”

It is convenient to postpone consideration of the appellant’s argument until the evidence given before the jury by Dr Purssey and further rulings by the Trial Judge are noted.  Dr Purssey’s initial evidence, which was not objected to, was consistent with what he had said during the voir dire and with the Trial Judge’s rulings at that time.  His evidence included the following:

“Doctor, in this case the jury have heard evidence and it is for the jury to say whether they accept it and what they act on but I want you to make these assumptions.  First of all, might I ask you did you see the video tapes of the accused Meredith in conversations with the police back in August of ‑‑‑‑ ?‑‑ I saw video tapes of the accused, yes.

They are the ones that the jury have seen?‑‑ Yes.

You can be informed by me they are the ones the jury have seen?‑‑ Yes, I have seen the ones.

You saw Meredith on that.  How does he fit in to what you speak of the average Australian male?‑‑ I thought he was a little bit less than the average Australian male taking into account the other details that were put in other information I was given, which I think again the jury has heard, that he was about 173 centimetres high and he was a little slightly built; so, on that I felt that he was less than the average Australian male and hence, I increased in my calculations instead of .01 percent per standard drink or beer equivalent, I pushed it up to .012 and that is why the figure I used in my calculation is.

For a person with an absorption rate of .012, I want you to then assume that there is a consumption of a 750 millilitre bottle of port, Australian port, between the hours approximately  - approximately between 6 p.m. and 9 p.m.  It might be half an hour either side of that, but taking those, and then the consumption of another bottle of port between approximately 9.30 and 10.30 or 10.45 p.m. with the exception of a small amount drunk by somebody else that's been described as about two inches ‑ it wasn't a port glass, but what was described as a narrow glass.  Can you say a whole bottle, with the exception of that amount ‑ what amount would you say it would be fair to take for that?  What amount would you say would be fair to take?‑‑ From what you are describing ‑ I have not seen the glass, but you probably are talking about 60 mills of port, I would think.”

...

Then for such a person what would be the likely blood alcohol content, say, at 6 a.m.?‑‑ Well, we are now dropping ‑ going from, say, 1.30 down to 6 a.m.  That is four and a half hours and in four and a half hours you are going to drop .09. You will take .09 of my .35 and you are getting down to .26. But again you have got the plus or minus almost .05 that I mentioned before, so again if you want to put that range you are going to have .21 to say .31.  Wait a moment.  There might be a little bit more than that, because of the extra that had been drunk in the early hours.  If you are talking about those other three and a half, certainly still very high and in the vicinity of, say, 25. I think that's as near as I can possibly get.

Doctor, what I want to ask you about is the effect on the average Australian male of a blood alcohol concentration of .25 to .3?‑‑ I'm sorry, I didn't mention before and I should have really brought this up before and I'll answer that question by prefacing it to say the effect of alcohol ‑ you've got the effect on the brain. You have also got obviously signs ‑ a small proportion of persons show quite obvious signs at very low levels.  They are not used to drinking; they are young; they often show signs in a party atmosphere as low as .05.  As the blood alcohol rises more people will show obvious signs of inebriation until you get to .02, most people will be showing obvious signs.  In fact, investigations in Brisbane have shown that the average level of the drunken disorderly -----”

The prosecutor objected at this point, and the questions and answers then continued:

“Does the disturbance to the higher functioning of the brain affect perception of what is going on?-- Yes, it does, because things that may happen may not register on the consciousness.  People see things and feel things, but it doesn't necessarily register on their consciousness.

Does that condition continue at an even rate or is it patchy?‑‑ No, it doesn't.  Not only does it not occur at an even rate, it can be affected by outside influences.  Certainly an example of this is people who would be again brought in for testing as far as being arrested under the influence of alcohol who were showing marked signs of inebriation when arrested but had pulled themselves together and controlled themselves when they came into this area.  People can vary.  The effect on the level is not constant.  It does vary and people can have, and it has been reported where they do have loss of memory for some time, but not for others.  This does occur.  It is not constant level, constant effect on the brain.

Could a person with that alcoholic content still be able to walk and talk?‑‑ Yes.

Could a person still be able to do things?‑‑ Yes.

Here the jury have heard evidence indicating that a person who had consumed an amount of liquor such as we have been talking  about, assuming that he had done certain things ‑ I want to put some of those to you, all of them if I can, sort them out, to see how that affects your opinion, your opinion being that the higher area of the brain would be, what ‑ how would it be affected?‑‑ Grossly disturbed I've said.

Disturbed?-‑ Varying between where there is very little registering on the consciousness to actually the person being unconscious, but that is a different thing altogether because that means all functions of speaking, moving, what have you, stop.

lf such a person then were to take the person that he is drinking with, he having been injured, having a stab wound in the side, and the person affected by liquor, the person that we are talking  about, notices the bleeding and takes him into a bathroom and cleans it up with Dettol and water and cotton wool and places a dressing over it and ‑‑‑‑‑ ”

When the prosecutor again objected, the jury was sent out and the following argument ensued:

“MR RIDGWAY: It is difficult, I know, but it seems that we are at a stage where despite the fact that the questions are being posed under the colour of a hypothetical situation it is impossible that the jury would not associate the questions or answers directly with the accused so that it is, in effect, a quite overt mechanism to circumvent the effect of the ruling Your Honour has already given.

...

MR CUTHBERT: Your Honour, I was attempting to put what my learned friend has called the contraindications to this witness which was the subject matter of discussion in Barnes case, the failure to do so, and I intend to ask Doctor Purssey what effect ‑ assuming these things did happen to this person that we are speaking about, what effect, if anything, that has on his opinion as to his being greatly disturbed.  Now, in the light of what was said by I think all members of the Court in Barnes case where all of these matters weren't put, that it would be necessary for me to put them; otherwise I would be subject to the same criticism as was directed in the Barnes case.

HER HONOUR:  I’ve never seen any of those criticisms ever actually upheld in an appeal Court.  It has occurred in other Courts as well because, of course, it is done on the basis that counsel knows perfectly well what he is doing.  Mr Cuthbert, I, however, am a little concerned that it is drifting in that direction in many ways which might be thought not even necessary to put it to Doctor Purssey because his opinion hasn't really ventured into the particular.  However, I think perhaps what is needed if this course is to be taken is to get more specific evidence, if Doctor Purssey feels able to give it, as to what effect on the levels of functioning in his experienced observation and analysis that degree of blood alcohol has and then, no doubt, he will give some answers about the various levels.  I know he has given some evidence, but I'm not sure that he has actually given it in respect of this level and I know he has qualified it by saying, of course, it is an average and there is a range and it is variable.  Then if he gives evidence about that it seems to  me not inappropriate to ask him then would a capacity to carry out or plan an activity of a particular kind, would that be consistent or inconsistent with the sorts of things that he has said, or would it cause him to alter his view, or would he said this doesn't fit within the range; things of that kind would be permissible.  I think it really needs to be done more on the basis of assumed facts and is it consistent or inconsistent with his opinion.

MR CUTHBERT: First of all Your Honour is suggesting I should establish from Doctor Purssey ‑‑‑‑‑

HER HONOUR: I don't think anything sufficiently has been established from him that makes it relevant to ask him whether cutting band‑aids and cotton wool is consistent or inconsistent with the opinion that he has expressed about the capacity to carry out certain activities.

MR RIDGWAY: I explained that my point in respect of that was that there is no relevance.  There is no need to put the contraindications now because the evidence didn’t relate to the accused and that is by virtue of Your Honour’s clear ‑‑‑‑‑

HER HONOUR: Absolutely.  I have no difficulty with that.  I am suggesting, and I don't think it is impermissible or inconsistent with that ruling if Doctor Purssey were asked about the indicia of that level of blood alcohol on the average person.

MR RIDGWAY: I thought that he gave that sort of evidence in Barnes actually and that it was given in a form that was reasonably acceptable.

HER HONOUR: I thought so too. My recollection of Barnes, and I had expected that he might give a similar line of evidence here, Mr Cuthbert, is the sorts of things that his experience and expertise would suggest an average individual is able to do with that level of alcohol at the various times and bearing in mind that it is a sliding scale up the cerebral functions.  I mean, I thought he was able to give that sort of evidence.  Now, if he says that a person with that level of alcohol would be unable to plan a journey, for example that a higher functioning would make that most unlikely, then you can ask whether it is consistent with someone arriving at a destination that is known to them and he may say you can have blackouts from time to time.  I have no idea what he will say about this and in that way I think you can deal with the issue, but otherwise it is not really relevant as far as the evidence has presently been adduced.”

Dr Purssey’s evidence then continued:

“MR CUTHBERT: Doctor Purssey, we had reached the stage just before lunch of a person with the blood alcohol concentration of this person who had drunk two bottles of port almost and the further spirits and the beer and ‑ with a blood alcohol concentration of that degree could you describe to the jury, once again, what effect that has on the cerebral process in the brain?‑‑ If we’re talking about an average person, quite a proportion of people with a blood alcohol of that level are going to be unconscious.  There is going to be a variation between quite severe effect and, as I say, people are literally unconscious.  This varies from person to person; so, when I am asked what the effect is on the average person, it can be between those levels but I would think that the minimum level ‑ the minimum effect is severe effect and disturbance of the higher functioning of the brain.

Now, the higher functions of the brain you mentioned this morning, page 214, Your Honour, and 215 ‑ you said, ‘The brain is a very, very complex organ.  It is made up of higher levels  ‑ when I say higher levels, these are concerned with your memory, your rational thinking, planning, this sort of thing and then below those levels you have what you use for normal everyday activities.’  So, you are speaking of memory or rational thinking, planning, this sort of thing?‑‑   Yes.

I want your observations and comments, if any, as to a person with that blood alcohol concentration that we have been speaking about, does it affect all of those things, that is, memory, rational thinking, planning, this sort of thing, all the time or does it affect it spasmodically or how does it affect it? Could I have your comments on that?‑‑  They would all be disturbed all the time.  There will be a varying amount of external stimuli, if I can call it that.  Other things that are happening which will register on his consciousness, that does vary.  What do I mean by external stimuli?  Well, they can be anything, seeing something which he hadn’t registered on his consciousness but suddenly it did register on his consciousness.  Now, I don't want to refer to anything else that ‑ as far as the particular case is concerned.  Well, take the case of say somebody who has fainted and fallen down.  That may register unconsciously but he is not normally going to see somebody fainted or lying down or the person is not going to.  It is something which is different which will force its way across from the subconscious to the conscious level.

Once that is registered what is the likely or probable reaction?‑‑ Well, he can try to do something about it.   If someone has fainted, he can perhaps try to pick them up, this sort of thing.  I mean, he could do what he would normally do to a degree in a similar instance if he hadn't had a blood alcohol of this level.

If the consciousness is, I might use the word, sparked by this external stimuli?‑‑   Yes.

Does that affect the capacity to plan or to ‑ the capacity of memory?‑‑   Yes, I think it could, yes.

Could you explain that, doctor, then?‑‑ Well, you've got somebody who is now concentrating because of external stimulus, which has taken him from an almost automatic level of functioning, to a level where he has got to think about it.  Now, okay, if he does, yes, he could be functioning better than he was before this was brought to the level of consciousness.

You gave ‑ just can't find your precise words ‑ an example this morning to the jury of persons that you have examined who have pulled themselves together?‑‑  That's correct, yes.

Could you just expand on that for me?‑‑ Well, again, most of these, of course, are at much lower levels than this.  This is a very high level.  I have never seen somebody the .35. I have seen .34 but never .35, very high levels of blood alcohol, but people certainly do - when you say ‘pull  themselves together’, then they start thinking ‑ well, my mind starts working, which it does, and it says, ‘I have got to do better than I am doing at present’, and they try to behave normally often without succeeding.

Would they be capable of planning something then?‑‑  Definitely.  I would think they would but whether or not somebody on this level ‑ a lot of diversions ‑ I would say it would be possible if they are going to be awake and functioning at this level, if they suddenly had some reason to pull themselves together, as you are using those words, in other words, getting things back on a conscious level, yes, I would think that they could perhaps ‑ certainly memory could be there and they could perhaps do some planning, whether it be accurate or not is another point.

Once again, Your Honour, I must attempt to get to the instances of ‑ there is certain conduct of the accused the jury have heard in this case ‑ without going into detail of it, there was dressing of a wound ‑‑‑‑‑”

After a further objection by the prosecutor, the Trial Judge said:

“Perhaps the better way to address that, if I might suggest, would be an activity of that kind whether it falls within the higher level of cerebral functioning, the normal or middle level of cerebral functioning which occupies, according to Doctor Purssey's earlier evidence, the everyday functions of life, or whether it falls within the lower level. You may very well ask him that question rather than in the way in which you are proposing to do so.  Would you object to that course, Mr Ridgway?

There was then a further brief passage of evidence:

“Could a person be capable of such conduct still with a disturbed level of functioning that you have described?‑‑ Yes, I would think so.  It is not a particularly high level of cerebral functioning but ‑ to me it wouldn't but to the average person perhaps a little bit more.  Yes, I think it would be possible, yes.

Conduct then ‑ and the jury have heard of conduct here ‑ for whatever reason of taking an article and putting it in a port and in a suitcase ----”

After the jury was again sent out, there was further argument:

“MR CUTHBERT:  Your Honour, I have to deal, it seems to me, with the conduct of a person such as the conduct of the accused as disclosed in the evidence to see whether that affects the doctor's opinion, that at the time he was still grossly disturbed having consumed that amount of liquor.  I don't see how I can do it in conformity with Barnes' case other than by putting these matters to the witness, which I am trying to do in general terms, if I am allowed to.  I will do it more specifically.”

HER HONOUR: Mr Cuthbert, I am not sure that Barnes’ case is apposite.  It certainly was a basis of criticism by the Court of Appeal that those contra‑indications were not put, as it happened to be to Doctor Purssey, in that case.  The question of the appropriateness of that course was never the subject of objection by the Crown in that case, of course, which makes it rather different; so that I think what we dealt with before lunch, that is, these issues don’t of  themselves; that is, the contra‑indications become relevant on the limited basis upon which the expert evidence is being given.  I would have thought that it would be permissible rather to deal with some of these matters rather than in terms of perhaps contra‑indications, as it was in Barnes’,  having established that there are a range of cerebral functions which are affected variously by the consumption of quantities of alcohol, to ascertain whether the kinds of things which would be submitted by the Crown to be contra‑indications to the jury fall within a particular level of cerebral functioning which may or may not be affected by that ingestion of alcohol rather than by saying, ‘We have heard evidence that’.  It seems to me, that’s not to be permitted but you ask could, ‘A person with that level or I would ask you to assume that a person with that level of alcohol was able to select some items and put them into a suitcase, where does that fall, is it affected by that sort of consumption of alcohol?’, rather than referable ‑ Mr Ridgway might want to suggest to me even that is impermissible but that seems to me to be the only way you could ask these kinds of questions.  I am not sure whether I am making myself clear which may be leading to the problems here.

MR CUTHBERT:   I shall ask what conduct of the description of putting things into a suitcase, walking out and putting them over the fence and going ‑‑‑‑‑

HER HONOUR: Quite frankly, one is a bit of ‑ I am a bit of the view that these are things that ‑ having heard Doctor Purssey's expert evidence about the serious effect of this kind of level of consumption of alcohol upon a person of slightly below stature, that’s probably about as far as it really should be going.  The rest is for the jury.

MR CUTHBERT:   Your Honour, indeed, I wanted to go further.  I wanted to lead evidence from the doctor of his conduct after the stabbing, that the realisation that he has killed or done very grievous injury to a person can cause him then to think about things and think about his own position and about getting away and to, as it were, spark the consciousness of him.  Would Your Honour permit that line of questioning?

HER HONOUR: I am inclined not to, Mr Cuthbert.  I think that Doctor Purssey has given an example which will assist the jury in the sense that he has said ‑ given the example of the fainting person, this external stimulus may be sufficient to prompt a person to pull themselves to ‑ an arrest by the police is an example he has given and from his own experiences where people try to pull themselves together and present better. ...

...

MR CUTHBERT:   But I wanted to ask if the realisation that he has done something which has either killed or done serious bodily harm to a person would that spark the consciousness - Your Honour would not allow me to ask that  ‑‑‑‑‑

HER HONOUR: No, I wouldn't and perhaps for an additional reason, I am not really persuaded that it falls within Doctor Purssey's qualification, as I understand them at the present time, in terms of behavioural psychology and things of that kind; so, there would be two bases upon which I wouldn't permit those questions.”

After further argument concerning whether Dr Purssey should be permitted to give evidence as to whether the appellant’s conduct after killing Mr Shuttlewood affected his opinion of the likely effect of alcohol on the appellant’s mental processes, her Honour stated:

“... As I have said, it is against because I don't think Doctor Purssey's qualifications equip him to give expert evidence of that kind and I suppose that will be sufficient probable. That's the threshold question.

...

... I think Mr Purssey’s evidence is quite clear that an external stimulus of some kind  may act upon a person who is affected by alcohol.  As I understood his evidence, it could be a variety of things, things that may not be a stimulus to one will be a stimulus to the other and so on; so that that's really the extent I would have thought of the evidence that he could give.  He would be unable to say whether in a specific instance or, indeed, in general whether on one person it would be likely to have that effect or it would not.  It's a possible effect.  But he has already told the jury, I think, that that's what external stimulus can do.”

After an attempt by the appellant’s trial counsel to have Dr Purssey use the statements which the appellant made to police to ascertain, or assume, how the appellant had conducted himself and spoken after and perhaps during the killing was rejected by the Trial Judge, her Honour explained the effect of her rulings to the jury:

“... Ladies and gentlemen, there were a range of questions which Mr Cuthbert wished to ask Doctor Purssey in his expert opinion whether he could assist you with and I have made some rulings of law, which are my function in this trial, that he may not ask those questions on the basis that they fell outside Doctor Purssey's expertise; that he has a range of expertise, but it didn’t  cover the areas about which Mr Cuthbert wished to ask some questions which were pertinent, of course, to this trial and the matters in issue so that his questioning is now circumscribed by the rulings that I have made.  Do you understand that? ...”

The appellant’s trial counsel then continued questioning Dr Purssey:

“...  Doctor, memory is one of the matters connected with the higher echelons of the brain, I take it?‑‑ Yes.

Is that one of the matters affected by the ingestion of alcohol?‑‑ Yes, definitely.

The ingestion of alcohol to the degree we are speaking about in this case?‑‑ Yes.

In the evidence you gave this morning, how, if at all, does that affect memory and is its effect on memory constant or is it patchy?  Can you give me your opinion on that?‑‑ Are we talking about the memory of things past or memory of things happening at the time when you get a blood alcohol like this?

Memory of things happening when you have got a blood alcohol concentration like this?‑‑ No, I think it can be patchy.  It will tend to be blurred.  The whole lot will tend to be blurred to a degree, but depending upon the amount while the person is functioning, say, at a conscious level that I’ve mentioned before where perhaps something might have pulled them out of this automatic functioning level, he may remember that, but I think he is more liable to lapse back where he started from for most of the period ‑ for a lot of the period anyway.

Have you regard to your opinion that a person of this blood alcohol concentration ‑‑‑‑‑ ?‑‑ Yes.

 ‑‑‑‑‑ would be grossly disturbed ‑ I think were your terms, were they not?‑‑ That is correct, yes.

In the higher level, could he do anything with any degree of planning or forethought depending upon external stimuli?‑‑ Yes.  It may not be the best of planning or best of what he has done, but I would think it is possible that he could do some.

Does that affect your opinion of the gross disturbance of the mental processes at an earlier stage?‑‑ No. What I'm saying is that there is a general gross disturbance of what is going on in the brain in that with a level of blood alcohol like this and the depressive effect of it there will be a generalised disturbance, but that at times people can by virtue of such things as an external stimulus suddenly bring it back to the conscious where they concentrate on that and during that period (a) I think it would be possible to do some planning and (b) I think that would be there in the memory later on.”

The prosecutor’s cross-examination of Dr Purssey with respect to his blood alcohol calculations emphasised the large number of variables underlying Dr Purssey’s calculations:

“There were some other givens, for want of a better description which prefaced your evidence and they began with the proposition that certain particular quantities of alcohol had been consumed at different times; certainly one bottle of port was put to you.  Rather you would be asked what would be the effect notionally if a theoretical bottle of port were drunk between 6 p.m. and 9 p.m.; that was the first?‑‑ I don't think it was asked on an individual, but that one plus the other. I wasn't asked on what one bottle of port  ‑‑‑‑‑

These are quantities of liquor that you were to take into account?‑‑ Yes, these are the quantities which were put to me, yes.

The second quantity was said to be somewhat less than a full bottle of port ingested somewhere between 9 and 10.45 or 10.30 p.m.?‑‑ That's correct.

Then there were some fairly non‑specific spirits and beer and you put your own timeframe on that basically by saying up to 1 a.m.?‑‑ I did when I made my calculations, but it was a non‑specific time given to me, yes.  I could do no more than that.

Of course.  Then there are some other very non‑specific quantities of beer at some non‑particularised time during the early morning?‑‑ Yes, that was even less indefinite.

Doctor, the usefulness of that evidence really depends on how much of those quantities are, in fact, found by the jury to be true.  You accept and understand that?‑‑ Of course.

I want you to assist me, if you can, by examining the effect on your calculations if the jury, for example, were to want to know what would be the likely blood alcohol content of a person if, for example, only the second bottle of port that we have spoken about was consumed and only one and a half stubbies during the course of the morning hours and nothing further.  Did you make those calculations?‑‑ Well, I sat down and started working on them, yes.

Surely they were calculations that were open on the material that was provided to you?‑‑ No, no, no.  Your Honour, when I am making these calculations I'm making these on the whole evidence that is given before me.  I don’t take a little bit out and say ‘I’ll work that bit out and I’ll work that bit out and I’ll add them up.’”

The Trial Judge then asked a question of Dr Purssey:

“I understand, Doctor Purssey, but Mr Ridgway is putting to you that on the material which you had access to when you were doing your calculations a view of that material was open to you that only one bottle of port had been consumed, not two, and a view was open to be taken of that material that those few beers and few bourbons may or may not have been?‑‑ I wasn't asked to do anything on that, Your Honour. I'm sorry.”

In summary, so far as presently material, Dr Purssey’s evidence was that:

1. the consumption of the quantity of alcohol claimed by the appellant in his statements to police would grossly disturb the higher cerebral functioning of an hypothetical average adult Australian male, severely diminishing his memory, consciousness of what was occurring and capacity to think rationally;

2. external stimuli, for example, a shocking or troubling event, could restore or increase a consciousness of what was occurring, memory of what had occurred, and capacity to think rationally and plan;

3. because he is smaller than the average adult Australian male, the effects on the appellant of the alcohol allegedly consumed would probably have been greater; and

4. people vary in both the effects which alcohol has on them and their reaction to external stimuli.

Dr Purssey was not permitted to give evidence that a realisation by an intoxicated person, and more particularly the appellant if he had consumed the quantity of alcohol which he claimed in his statements to police, that he had killed or caused grievous bodily harm to another person could constitute an external stimulus for the purposes which he had described.  Nor was he permitted to give evidence that the appellant’s conduct, according to his statements to police, was consistent with the behaviour of a person with grossly disturbed higher cerebral functioning who had received such an external stimulus.

Dr Purssey had earlier been permitted to identify other examples of external stimuli for those purposes, for example, a motor vehicle accident or apprehension by police.  If that evidence was unobjectionable, I do not understand why he could not use the particular example relied on by the appellant, which plainly enough would be extremely shocking and troubling to an ordinary person.  However, taken by itself, any error by the Trial Judge in  this respect did not involve a substantial miscarriage of justice.  The examples given by Dr Purssey made the point without express reference to killing or causing grievous bodily harm.

Likewise, the jury could have been in no doubt but that the entire purport of Dr Purssey’s evidence was that the appellant’s behaviour might have resulted from gross cerebral dysfunction caused by alcohol, which severely diminished his capacity to think rationally but which might have been partially restored by an external stimulus.

The other grounds of appeal all depend on the appellant’s principal complaint that Dr Purssey was not permitted to give evidence concerning the likelihood^[6] of whether a hypothetical person who had consumed the quantity of alcohol claimed by the appellant in his statements to police, or, more specifically, the appellant himself, had either an intention, or the capacity to form an intention to cause grievous bodily harm.

While the consumption of alcohol is relevant to whether an accused had a requisite specific intent irrespective of his or her capacity to form that intent,^[7] Dr Purssey’s proposed opinion was to be inextricably related to the appellant’s capacity or incapacity to form an intention.  Dr Purssey plainly lacked the expertise to say that it was likely that the appellant lacked the necessary intention although he had the capacity to form that intention.  The fundamental, although largely if not entirely unexpressed, premise was that it is likely that a person with grossly disturbed cerebral functioning as a result of the consumption of alcohol lacks the capacity to form an intent to kill or cause grievous bodily harm.  At least implicit in that premise was the further proposition that it is likely that, since intent is a state of mind, a person with a gross disturbance of cerebral functioning cannot form a specific intent.  There is no obvious logical foundation for that proposition,^[8] and, on his evidence, Dr Purssey was not shown to be qualified to say whether or not it is scientifically correct.  In the words of the Trial Judge, he  “... has no pretensions at all to any expertise in the field of psychiatry or behavioural psychology or, ... in the field of anaesthetics which involves an understanding of the effect of various chemicals upon the brain and the central nervous system”.  There was no evidence that there is a field of scientific expertise which can relate mental dysfunction to the formation of intent.

Unless Dr Purssey’s evidence was that it was likely that a material intention, or the capacity to form such an intention, was lacking, there was no occasion for his discussion, in that context as distinct from the context of disturbed cerebral functioning, of the likely effects of external stimuli.

There are additional objections to Dr Purssey’s proposed evidence concerning the likelihood of whether the appellant lacked intention, or the capacity to form an intention, to kill or cause grievous bodily harm if he had consumed the alcohol which he claimed in his statements to police.

As has been noted, Dr Purssey gave evidence that alcohol affects different people differently.  A person’s weight, metabolism, prior drinking experience, and possibly gender, together with the period over which the alcohol has been consumed and other activities, such as eating food and passing urine, can alter alcohol’s effects.  Dr Purssey claimed no knowledge of the effects of alcohol on the appellant as an individual, and made no suggestion that the quantity of alcohol which the appellant claimed to have consumed in his statements to police was so great that individual tolerance levels to alcohol were immaterial to an assessment of the likely effects of alcohol on a particular person.  Nor did he have details of, for example, the urine which the appellant passed at material times.  Those were not matters which could properly be left for cross-examination, but went to the admissibility of Dr Purssey’s evidence.  No basis was established for him to express an opinion as to the likelihood of whether the appellant lacked an intention, or the capacity to form an intention, to kill or cause grievous bodily harm when he unlawfully killed Mr Shuttleworth, and no occasion existed for his consideration of the appellant’s conduct as a likely consequence of external stimuli in connection with such an opinion.

While evidence of gross mental disturbance, like mental disease, can be relevant to and admissible on the issue of the formation of a specific intent,^[9] and expert evidence which is admissible on this topic includes evidence of the effect of alcohol or drugs,^[10] there was no evidence that Dr Purssey was able to assist the jury on these issues beyond the evidence which he was permitted to give.

In short, Dr Purssey’s expertise placed him in no better position than the jury to form an opinion on the ultimate question.^[11]  That being so, it would have been potentially confusing for the jury to have his opinion, which would have involved a speculative conclusion not an exercise of scientific expertise, especially since, unless it rejected one or more factual bases for his opinion, it would have had no legitimate ground for the rejection of his opinion if it was admissible.^[12]

In my opinion, no evidence was wrongly excluded which might have affected the appellant’s chance of acquittal, and the appeal should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 446 of 1996

Brisbane

Before Fitzgerald P.

McPherson J.A.

Williams J.

[R. v. Meredith]

THE QUEEN

v.

 BRYCEN JOHN MEREDITH Appellant

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 3 April 1998

For the reasons given by Fitzgerald P., with which I agree, this appeal should be dismissed.

I wish to add only that Dr Purssey’s evidence, given or projected to be given at the trial, appears to have involved three steps.  One was to the effect that the ingestion of alcohol “within a certain region” was capable of grossly disturbing cerebral functioning to the extent that it could interfere with forming an intention.  By the expression “within a certain region”, it seems to me that he must have meant to a certain level or amount.  Given that interpretation, Dr Purssey’s evidence to that effect added little, if anything, to the basic assumption underlying s.28(3) of the Criminal Code.  In providing, as it does, that regard may be had to intoxication, whether complete or partial, for the purpose of ascertaining whether an intention to cause a specific result exists s. 28(3) necessarily assumes that the ingestion of alcohol may interfere with the formation of an intention.  At most, Dr Purssey’s evidence on that point contributed only the extra information that the ingestion of alcohol tends to disturb cerebral functioning, which is surely something that everyone is aware of.

The second step taken or sought to be taken at the trial was to invite Dr Purssey to give an opinion of the likely impact, on the cerebral functioning of the hypothetical average Australian male, of the ingestion of the quantity of alcohol which the appellant is supposed to have consumed before the killing.  The purpose of inviting an opinion on that matter was to lay the foundation for a comparison with its impact on the appellant himself.  There are obvious objections to attempting such a course, not the least of which is the number of unknown and unknowable variables involved, such as the precise quantities of alcohol consumed at particular times, physical size, diuretic factors, the frequency and rate of discharge, and the idiosyncrasies of particular individuals in tolerating alcohol.  For reasons like that, such an inquiry is not capable of producing a result that can properly be regarded as scientific opinion on which a jury could safely act as affording a reliable indication of the appellant’s particular state of mind or specific intent at the relevant time, which is no doubt why in drink-driving cases the legislature has resorted to generalisations in the form of blood-alcohol testing, breathalyser readings, and the like.

In the absence of more accurate methods of scientific analysis, reliance has traditionally been placed on commonly accepted indicia of drunkenness observable in the conduct of the particular individual shortly before or after the event in question.  In the case of this appellant, the evidence of his observed behaviour went far to undermine any conclusion that he was too intoxicated to have formed a specific intention to kill.  Hence the attempt to introduce evidence about the effect of external stimuli on drunken human beings.  As to that, I agree with the trial judge and with the President in concluding that the expertise of Dr Purssey in that area was much too limited to enable him to give any precise or useful opinion on that topic.  When, in the end, regard is had to the fact that the deceased sustained no fewer than 14 stab wounds, it would in a practical sense have been impossible for any jury, acting rationally, to conclude that, at the time he killed, the appellant had no specific intention to cause death or even to inflict grievous bodily harm.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.446 of 1996

Brisbane

Before  Fitzgerald P

McPherson JA

Williams J

[R v Meredith]

THE QUEEN

v

BRYCEN JOHN MEREDITH

Appellant

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 3 April 1998

I have had the advantage of reading the reasons for judgment prepared by both Fitzgerald P and McPherson JA, and I agree with all that is said therein.  I only wish to add some brief remarks of my own.

At trial the defence sought by calling scientific evidence to establish the level of the appellant’s intoxication at the time of the killing, and then to lead medical evidence as to the likely impact of that degree of intoxication on the appellant’s capacity to form an intent to kill or do grievous bodily harm.  In my view it is extremely doubtful whether any proper basis for reception of that evidence was established.

The only evidence as to the consumption of alcohol by the appellant on the occasion in question is to be found in his statement to investigating police officers and the evidence of A M Pidgeon; the appellant did not give evidence at the trial.

The following relevant questions and answers appear in the appellant’s statement to investigating police officers:

“Q. What time did you start drinking?

  A. Probably about 6 o’clock.

   ...

  Q. How long did you stay in your house drinking the port for?

  A. Until I emptied the bottle.

  Q. And then what did you do?

  A. I sat there contemplating whether I wanted to go get another bottle or not. ... I went up to the hotel a second time. ...

...

  Q. Okay, what happened then?

  A. I walked over to Paul Ashcroft’s house.

   ...

  Q. What did you do then?

  A. Me and Paul sat down and proceed - proceeded to drink more port.

When I finished the next bottle I decided to leave.

  Q. What time was that?

  A. I had no idea what time it was. 

  ...

  Q. What happened then?

  A. I proceeded walking down to the Valley where I met some other people.

  Q. Do you know any of these person’s names?

  A. No.

  Q. Have you ever seem them before?

  A. No.

  Q. What did you do then?

  A. We went to a hotel.

  Q. What hotel was it?

  A. I don’t know what hotel it was. ...

  Q. What happened then?

  A. We just kept on drinking and drinking.

  Q. How long were you at the hotel for?

  A. I have no idea of what time limit us being there was.

  Q. How did - how did you obtain the drinks?

  A. They were buying them for me.

  Q. What were you drinking.

  A. I was drinking beer.  I think I had a few bourbons, a few rums.  I don’t know what quantity of amount.

  Q. Do you recall how you got to Brian’s house?

  A. I have no recollection of how I got there.”

The second bottle of port referred to in the extract above was consumed by the appellant and his friend Paul Ashcroft in a unit occupied by the witness Pidgeon.  She referred to the appellant and Ashcroft arriving at her unit at about 9.30 p.m.  She said “Brycen was carrying a bottle of port”.  Her evidence suggests that she was endeavouring to watch a program on television but “they proceeded to annoy me by talking through my program”.  She picked up some pieces of their conversation and said that “Brycen was drinking his bottle of port”.  Her evidence was that he was drinking from the bottle.  She also said: “Paul had a little bit, yea” and “Paul had a glass but Brycen had the bottle”.  In her evidence in chief she was asked was there anything left in the bottle and she replied: “From what I saw, I don’t think there was but there might have been, I don’t know”.

Under cross-examination she admitted that when the appellant arrived the port was in the type of plastic bag that you get at a bottle shop.  In relation to Paul Ashcroft she said that he had “two inches at the most” in a “narrow glass”.  She also agreed that in her initial statement to the police shortly after the events in question she said: “Brycen finished drinking the port about half an hour before the movie finished.  I watched him down the whole bottle and put the empty bottle on the floor next to the lounge”.

That is in essence the sum total of the evidence on which the doctor was asked to determine a range for the appellant’s blood alcohol level at the material time.  No one asked Mrs Pidgeon was the bottle of port full when the appellant and Ashcroft arrived at her unit.  It may be the inference was open from the fact that it was in a plastic bag of the type used by bottle shops that it was full, but there is no specific evidence that such was the case.  Further, the appellant refers in his statement to drinking port at his house, but it does not appear whether or not that bottle was full when he started drinking at 6 p.m.

Other than that he had beer, a few bourbons, and a few rums in a hotel he could not remember and over a period of time he could not specify.

This is another case in which a person seeking to establish a high level of intoxication (around .3) can remember nothing about time, nothing about movements, but can recollect with some purported degree of precision what was drunk.  In this particular case the evidence as to what was drunk is very vague, but given the inability to recall any other relevant detail, even that must be treated with a deal of skepticism.

In those circumstances I have grave doubts that there was any proper basis upon which the doctor could be asked to express a scientific opinion as to the level of the appellant’s intoxication, which was the first premise in the evidence sought to be led from him.

I agree that the appeal should be dismissed.