R v McCormick[2000] QCA 522

SUPREME COURT OF QUEENSLAND

1. PINCUS JA:   I have read the reasons of Helman J and am in respectful agreement with them.  I agree that the appeal and application should both be dismissed.

2. As Helman J points out, the Crown case was run on the basis that the operation of the vehicle was dangerous because the appellant was adversely affected by the substances referred to in the indictment. That is, the Crown case was that the driving was dangerous in only one respect, namely, in that the appellant was adversely affected by intoxicating substances.

3. The offence charged is that defined by s 328A(4) of the Code under which operating a vehicle dangerously, thereby causing grievous bodily harm, renders the offender liable to 7 years imprisonment; but if at the time of committing the offence he is adversely affected by an intoxicating substance the penalty is higher. It was common ground that the semi-trailer which was being driven by the appellant moved onto the footpath seriously injuring five people. But because the Crown confined itself, as to the element of dangerousness, to the matter which was the circumstance of aggravation, the case was not put forward on the basis that it was dangerous to drive the vehicle onto the footpath. One would have expected that the particular of dangerousness would have been, or at least included, endangering people by driving the vehicle onto the footpath.

4. No point was taken by Mr Di Carlo about the oddity of the particulars given by the Crown. I have remarked upon them because I would not wish it to be thought that our judgment in this case treats the particulars given as adequate to delineate the nature of the case which the jury had to consider.

5. THOMAS JA:  I agree with the reasons of Helman J and with the orders that he proposes.

6. HELMAN J:  On 10 March this year, after a trial in the District Court at Brisbane which began on 7 March, the appellant was found guilty of a serious driving offence with a circumstance of aggravation: that on 12 November 1998 at Brisbane, Queensland he operated a vehicle in Ipswich Road dangerously and caused grievous bodily harm to five named people and that at the time of committing the offence he was adversely affected by ‘an intoxicating substance namely Methylamphetamine and Amphetamine’.  The case presented for the Crown was that the operation of the vehicle was dangerous because the appellant was adversely affected by the substances referred to in the indictment.   On 13 March the learned trial judge sentenced the appellant to imprisonment for three and a half years with no recommendation for consideration of parole.  On 14 March her Honour refused a Crown application that she reconsider the sentence on the question of a driver’s licence disqualification. The appellant appeals against his conviction and applies for leave to appeal against the sentence.

7. The incident that gave rise to the charge occurred shortly before 10.30 a.m. on 12 November 1998.  The appellant was driving a large Western Star prime mover with an attached tri-axle trailer along Ipswich Road, Woolloongabba towards the intersection with Stanley Street when it moved off the roadway and onto the footpath on its left causing extensive damage to a shop awning and serious injury to the five people.  At the trial, on behalf of the appellant his counsel admitted that all five suffered grievous bodily harm as a result of the incident.  The issues for the determination of the jury in the case against the appellant, then, came down to these: first, did the appellant operate the vehicle dangerously in that he drove it when he was unfit to do so because he was adversely affected as alleged?; and secondly, if he did operate the vehicle dangerously in the way alleged, did that dangerous operation cause the grievous bodily harm suffered by the five people?

8. The appellant was represented at the trial by counsel with a great deal of experience and expertise in this kind of driving case. The appellant’s case as it was presented to the jury focussed on the first issue, i.e., whether the appellant had driven the vehicle when he was unfit to do so. The only witness called for the appellant was Dr Patrick Carroll, the Director of Medicine at the Redcliffe hospital who also practises privately. Dr Carroll gave evidence as an expert on the effect of the drugs on those who take them. The Crown evidence was that a blood sample taken from the appellant on 12 November 1998 at the Mater hospital was given two laboratory tests. On 17 November 1998 it was tested for alcohol at the John Tonge Centre for Forensic Science in Brisbane by Ms Margaret Woolcock and no alcohol was detected. It was tested again on 27 January 1999 by Mr Neville Bailey, also at the John Tonge Centre, and found to contain the following concentrations of drugs: 0.4 milligrams per kilogram of methylamphetamine, and 0.03 milligrams per kilogram of amphetamine.  Both Ms Woolcock and Mr Bailey signed certificates showing the results of their tests.  Mr Bailey’s certificate was signed on 10 March 1999.  The Crown called Dr Lindsay Brown, a senior lecturer in pharmacology at the University of Queensland, who gave evidence that with 0.4 milligrams per kilogram of methylamphetamine in a person’s bloodstream his or her ability to control a motor vehicle would be adversely affected.  Dr Carroll’s evidence was, on the other hand, that it would not be possible to conclude that a person with that concentration of methylamphetamine in the bloodstream at the time when the sample was taken would show behavioural change or be adversely affected at the time alleged in the indictment.  Both Drs Carroll and Brown were well qualified to give opinions on the matter in issue, but it is obvious that the jury accepted Dr Brown’s opinion in preference to Dr Carroll’s, as it was open to it to do.

9. On behalf of the appellant, Mr Di Carlo submitted that the trial miscarried and that the conviction should be set aside and a new trial ordered. There were two grounds in his notice of appeal upon which reliance could have been placed in support of that result. One related to her Honour’s summing up and the other to the address by the Crown prosecutor. At the hearing of the appeal those grounds were abandoned and Mr Di Carlo sought, and was permitted, to argue two new grounds. The first of the new grounds appeared in the written outline of submissions prepared by Mr Di Carlo as:

There was a miscarriage of justice, in that there was not a proper examination of the evidence of ELDER, Christopher Ronald in respect of his cutting off the path of the Appellant.

That ground was reformulated in oral argument as:

As a result of communication between counsel and the appellant or failure of such the cutting off by the witness Elder was not effectively disposed of in cross-examination.

The second new ground of appeal was in the written outline as: 

The Learned Trial Judge erred in admitting into evidence the blood sample and consequential analysis in result having regard to . .

and there followed six matters to which I shall refer later.  That ground too was reformulated at the hearing of the appeal as: 

Having regard to the fact that the container/vial had been delivered in an unsatisfactory manner coupled with the 76 day delay of the testing and its overall handling the issue of continuity was not properly or effectively explored by trial counsel.

The argument at the hearing of the appeal was then on two grounds in which the conduct of counsel for the appellant at the trial was called into question.  Although the second new ground had been formulated in the written outline as relying on an error by her Honour, at the hearing of the appeal Mr Di Carlo, who was not the appellant’s counsel at the trial, abandoned any reliance on that assertion.  It may be noted at the outset that it is now well settled that before an appeal court will set aside a conviction on the ground that the conduct of an accused person’s case occasioned a miscarriage of justice it must fit the description ‘flagrantly incompetent’:  R v. Paddon [1999] 2 Qd. R. 387, at p. 393 per Chesterman J. with whose reasons the other members of the court agreed.  It may be further noted that the appellant did not see fit to file any material exposing the instructions that he gave to his legal advisers.  In the absence of such information it is extremely difficult to be critical of tactical decisions by counsel to pursue one line and forsake another in the conduct of the trial.

10. The first ground of appeal concerns the way in which the appellant’s counsel at the trial cross-examined a Crown witness, Mr Christopher Elder. Mr Elder, a computer engineer, gave evidence that just before the incident he was driving his dark green four-wheel-drive Holden Jackaroo in the second lane from the left in Ipswich Road approaching the intersection with Stanley Street. The traffic lights facing him were red, and he was coming to a halt behind a car which was stationary at the lights when he heard a noise which caused him to look into his rear-vision mirror. Reflected in the mirror he saw the prime mover driven by the appellant moving off Ipswich Road behind him and hitting the awning. Mr Elder then parked his car at the kerb and went back to the prime mover. Mr Elder asked the appellant if he was all right. The reply was, ‘Yeah, I’m okay’. There was some further conversation, and Mr Elder noticed that the appellant was holding a dog underneath his legs. Mr Elder asked what had happened, and the appellant replied, ‘The dog got under my fucking feet’. Mr Elder said an ambulance arrived and he helped the ambulance officers. In response to questions by the Crown prosecutor in examination-in-chief, Mr Elder denied that he had been driving erratically ‘from lane to lane’, and said that he did not recall noticing anyone driving erratically either in front of or behind him ‘swapping lanes to lanes or anything like that’.

11. Mr Elder’s evidence concerning the presence of a dog in the cabin of the prime mover was corroborated by the evidence of two other witnesses who also saw it in the cabin soon after the incident. They were Mr Anthony Cassemates, a car salesman, who witnessed the incident while standing fifty to one hundred metres from where it occurred, and Mr Peter Hall, a truck driver who was driving a truck following the appellant’s. Mr Elder was the only one of those three witnesses who gave evidence of the appellant’s offering an explanation for the incident, and the only explanation given to Mr Elder was that concerning the dog. The appellant’s counsel began his cross-examination of Mr Elder by asking him to agree that he really could not say what the appellant’s vehicle did prior to his observing it in his rear-vision mirror. It was then put to him that he could not say what vehicles might have come into the left lane after he heard the noise. Mr Elder replied ‘No. Well, that wasn’t the centre of where I was’. It was put to him that he was interested in what happened behind him and Mr Elder agreed. He was asked whether, when he went back, the first words that the person who was obviously the driver of the prime mover and trailer said were ‘A dog got under my effing feet’. Mr Elder’s reply is recorded as ‘Mmm’. There followed some questions about the size of the dog. Mr Elder was then asked whether he had passed ‘this trailer and unit’ as he was coming down to the lights, to which he replied that he did not recall and could not say.  Next there was a question concerning whether the intersection was very busy at eleven o’clock, to which Mr Elder replied that it was, that there were ‘a lot of trucks on it’.  He was asked how he would estimate the time of the noise he heard, and he replied that he did not recall the time.  Finally he was asked whether he had assisted in clearing up the mess.  Mr Elder’s accounts of the way he had been driving before the incident, of his seeing the dog in the cabin of the prime mover, and of the appellant’s explanation for the incident were not challenged in any way. 

12. Senior Constable Glenn Morgan gave evidence that he interviewed the appellant about the incident on 17 November 1998 and that in the course of the interview the appellant gave an account of the incident in which he said that a ‘green black’ four-wheel drive vehicle had been driven suddenly into the lane in which he was driving towards the intersection and that his movement to the left was made in an effort to avoid a collision with the vehicle.

13. The appellant’s counsel at the trial could not have failed to have been aware of that last explanation for the incident since it was in the evidence presented by the Crown, but the conduct of the appellant’s case strongly suggests counsel’s instructions did not include that explanation. The evidence of the presence of the dog in the cabin of the prime mover and of the appellant’s explanation for the incident to Mr Elder was not challenged, so the inference may properly be drawn that the appellant’s instructions to his counsel at the trial were that that indeed was the explanation he gave to Mr Elder and that he gave no other. Had the appellant believed Mr Elder’s driving had been in some way responsible for the incident it might reasonably have been expected that the appellant would have made an accusation to that effect when Mr Elder gave him the opportunity when he asked the appellant what happened. In those circumstances the explanation given to Senior Constable Morgan bears the stamp of fabrication. Furthermore, exhibit 1, an aerial photograph showing the damaged awning, Ipswich Road, and the intersection, reveals that the awning was some distance from the intersection suggesting that even had the appellant’s later explanation been persisted in it would not have withstood scrutiny, since there would appear to have been an adequate stopping distance. There was also evidence from Mr Hall of a previous dangerous sideways movement by the appellant’s vehicle some kilometres from the place where it came to grief.

14. Had the appellant’s explanation to Senior Constable Morgan been pursued by his counsel at the trial a good deal could have been made of the matters I have mentioned, and his counsel may well have decided not to do so for fear of the jury’s dismissing that explanation as spurious. Furthermore, if an advocate has a good point and others he or she considers tenuous, a decision may be made to abandon the tenuous ones lest the jury’s consideration of the good point is affected by an overall impression that the accused person’s case is unmeritorious. Advocacy is a difficult art and it often calls for the exercise of judgment as to which issues to pursue and which to abandon. That judgment in a case like this may also be affected by another factor I have not yet mentioned: counsel’s assessment, based on observation of a witness’s demeanour in the witness box, of the jury’s being prepared to entertain an assertion that the witness lacks credibility. It may be that Mr Elder gave a very good impression.

15. Taking all of those matters into account, I am not in the least persuaded that there is any merit in the appellant’s first ground of appeal.

16. The second ground of appeal concerns the way in which the appellant’s counsel at the trial dealt with the ‘continuity’ evidence concerning the blood sample: the evidence called to show that the sample taken from the appellant had been properly taken, handled, and stored so that the test results could be relied upon as accurate, and that nothing had been done, or omitted to be done, in the handling and storing of the sample which could have led to interference with, or contamination of, the sample.

17. The Crown evidence of the taking and handling and storing of the blood sample began with that of Senior Constable Jason Goodwin who was directed to the scene of the incident at about 10.30 a.m. on 12 November 1998. Ten or fifteen minutes later the constable arrived to see the appellant sitting in the prime mover. The appellant was then taken to a police car and later to the Mater hospital where at 12.45 p.m. a doctor took the sample in the presence of the constable who then secured it. The blood was put in a tube from a pack provided for that purpose. The tube with the blood in it was then sealed and put in a larger tube which was itself sealed and put in a box which was also sealed. A blood kit of the kind used was produced at the trial and became exhibit 18. Senior Constable Goodwin explained its contents: syringe, labels, swab, the two tubes, written instructions, and a pad. The box was delivered to the John Tonge Centre.

18. Mr Mac Clapperton, a chemist employed at the John Tonge Centre, gave evidence that he received the box, which was not sealed, from Senior Constable Goodwin. Mr Clapperton opened the box and found a sealed tube with the blood specimen in it. He issued a receipt to the constable and then took the specimen to a laboratory where it was registered and a work sheet was ‘initiated’ recording details on the label on the specimen tube. The tube was then placed in a secure cold room. The tests were carried out later, as I have related.

19. Mr Di Carlo argued that although the evidence of the handling of the blood sample up to the time of its being tested was sufficient – ‘just barely sufficient’ he said in the course of his oral submissions – to justify the jury’s accepting the result of the test as proof of the level of drugs in the appellant’s blood, the appellant’s counsel could have, and should have, pursued a number of alleged weaknesses in the evidence. Had that been done, so the argument ran, the issue may have reached the point ‘where the learned trial counsel perhaps could have submitted to her Honour that it wasn’t sufficient or, indeed, make something of it with the jury’. The alleged weaknesses in the evidence were six: first, the box in which the blood sample was contained was not sealed when it was delivered to the John Tonge Centre; secondly, the blood sample and its container had been dealt with for other purposes prior to the testing for the relevant drugs; thirdly, the blood sample was not contained in a properly sealed container at the time it was tested; fourthly, there was doubt as to how and under what circumstances the testing procedure took place; fifthly, the blood sample analysis was made seventy-six days after the subject incident, and the certificate issued forty-two days after that; and sixthly, the prospect of contamination must arise. (In the list I have just given I have not followed the order used by Mr Di Carlo.)

20. The first matter refers to Mr Clapperton’s evidence as to the state of the container when it was received at the John Tonge Centre. Mr Clapperton’s evidence was that according to the work notes the box was not sealed, but that he opened the box to establish what specimen was inside. Mr Clapperton continued to say  that the tube containing the blood was sealed when he received it and that it bore the number 10453.  The second matter arises from the evidence of Mr Bailey that the specimen tube had a seal but the seal had been cut indicating that someone had used it before he had, although Mr Bailey had no note recording the cut when he took the tube from the refrigerator.  Mr Bailey also said that the normal procedure in carrying out an alcohol analysis would be for the person testing the blood to use a scalpel blade to cut around the seal before extracting some blood for the test, and after the test to return the blood to the refrigerator in which it had been kept before the test.  The evidence of the cut seal is of course consistent with its having been cut by Ms Woolcock when she tested the blood sample in November 1998.  The third and fourth matters appear to cover the same ground as the second.   The fifth matter concerned the delays between before testing and providing the certificate.  It is difficult to understand the significance of the reference to the time between the test and the signing of the certificate;  and Mr Bailey’s evidence was that he had no indication that methylamphetamine and amphetamine would be degraded in the  time between taking the blood and testing it for drugs.  The sixth matter relates to the testing procedure, in particular the use of standard substances and blank controls.  The procedure was explored in some detail by counsel for the appellant at the trial.  He asked a number of questions about the procedure used to test the blood by use of a gas chromatograph with  standard substances and blank controls to ensure that after the wash cycle there was no contamination which could distort the results.  It was also established that the refrigerator where the specimens were stored was locked, but only at night. 

21. It is unlikely that anything of substance could have been made of any of the issues raised about the continuity evidence. The box was not sealed when it came to the John Tonge Centre but the tube containing the blood was. After the specimen arrived it was in a secure place at the Centre. The cut seal was satisfactorily explained, and there was nothing about how and when Mr Bailey tested the blood which would arouse suspicion about the result. Again, no flagrant - or I think any - incompetence in conducting the appellant’s case has been demonstrated.

22. I should therefore dismiss the appeal against conviction.

23. The ground relied on by the appellant in making his application for leave to appeal against his sentence is:

That there was a miscarriage of justice in that the sentence was manifestly excessive and exceeded the proper bounds considering the offence for which the appellant was convicted.

In sentencing the appellant her Honour took into account the gravity of the offence which resulted in very serious injuries to all five victims.  Each suffered multiple fractures and severe pain and discomfort.  One had her right leg amputated below the knee.  Her Honour said she was prepared to accept that the incident had also had a terrible impact on the appellant, who had been admitted to the Princess Alexandra hospital on 12 November 1998 in a state of acute dysphoria with suicidal ideation.  He was discharged on 19 November 1998.  Her Honour observed that the appellant had a history of having committed criminal and traffic offences.  But her Honour noted that his previous criminal history ended with an offence committed in 1989, and included nothing comparable with the offence the subject of this appeal and application;  and there was no comparable offence in his traffic history.  Her Honour referred to the deterrent effect of punishment.  In so arriving at the sentence imposed on the appellant her Honour gave proper consideration to the factors relevant to her decision.

24. Mr Di Carlo submitted that although the range of sentences open to her Honour was from imprisonment for two years to imprisonment for five years, imprisonment for two and a half years to three years would have been the appropriate sentence. I am, however, not persuaded that it has been shown that the sentence imposed was manifestly excessive. Mr Di Carlo conceded – correctly I think – that the sentence was within the range applicable to the offence, and consideration of similar cases fails to show any error in the exercise of her Honour’s sentencing discretion. Among the cases to which we were referred were R. v. Rahn (unreported, C.A. no. 180 of 1998, 6 August 1998) a case of a driver affected by amphetamines, R. v. Purcell, ex parte Attorney-General (unreported, C.A. no. 192 of 1999, 17 August 1999) in which McMurdo P. and Thomas J.A. reviewed a number of driving cases in which the offenders were affected by the consumption of alcohol, and R. v. Antoney (unreported, C.A. no. 402 of 1999, 16 May 2000), another case of a driver affected by alcohol.  There is little point in going into detail on points of similarity and of distinction with this case.  It suffices to say that they demonstrate the correctness of the concession as to the range made by Mr Di Carlo. 

25. This is a case I think in which a severe penalty was called for when one considers the central facts: the size and weight of the appellant’s vehicle, his irresponsibility in driving it while adversely affected to the extent he was, and the severity and number of the injuries inflicted on the five victims. The maximum penalty for the offence is imprisonment for ten years, and imprisonment for three and a half years is within the appropriate range.

26. I should refuse the application for leave to appeal against sentence.