R v Dobrenov[2023] QDC 258

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant is charged that on the 14^th day of February 2022 he dangerously operated a vehicle in Derby Street at Coorparoo and caused grievous bodily harm, with a circumstance of aggravation that at the time of committing the offence he was excessively speeding.^[1]
2. [2]
   The applicant was driving a Tesla sedan along Derby Street at Coorparoo when he collided with the complainant’s Volkswagen Polo hatchback.  As a result of the collision, the complainant suffered grievous bodily harm.  The police spoke to the applicant at the scene.  He said that he had been travelling at about 60 to 70 kilometres per hour and had been looking at his GPS just prior to the collision.  Data and footage was obtained from the Tesla.  The impact speed was 86 kilometres per hour.  Less than one second prior to impact the Tesla reached a speed of 98 kilometres per hour.  Derby Street is a suburban road without a speed sign so the speed limit was 50 kilometres per hour.^[2]
3. [3]
   By this application filed 26 May 2023, the applicant seeks rulings that: (a) his statements against interest made at the scene are inadmissible; (b) the seizure of the USB and airbag control module (ACM) was unlawful and the evidence obtained as a result should be excluded; and (c) the opinion of a police officer attached to the Forensic Crash Unit as to the speed of the Tesla is inadmissible.
4. [4]
   As the application raises questions under the Human Rights Act 2019 (HRA), the Attorney-General intervened.^[3]

Factual background

5. [5]
   On 14 February 2022 at approximately 2pm the applicant, driving a Tesla sedan, turned right into Derby Street at Coorparoo and came to a stop.  The complainant, who was driving a Volkswagen Polo hatchback, was parked on the side of the road outside 69 Derby Street.  The complainant’s vehicle was facing in the same direction as the applicant’s vehicle. 
6. [6]
   The complainant saw the applicant in her rear vision mirror to be about 90 metres behind her.  The complainant saw that the applicant’s vehicle was either going slowly or had come to a complete stop.  The complainant intended to make a U-turn and put her indicator on for approximately four seconds.  The complainant commenced the U-turn.  At the same time the applicant accelerated under full throttle^[4] towards the complainant’s vehicle.  Within 3.4 seconds the applicant had reached a top speed of 98 kilometres per hour.  The applicant’s vehicle collided head on with the passenger side door of the complainant’s vehicle causing severe damage.
7. [7]
   The complainant’s injuries included comminuted displaced fractures of the right tibia and fibula and multiple displaced, compound fractures in her left hand.
8. [8]
   The police analysed data from the airbag control modules of both vehicles.  The data from the complainant’s vehicle showed that it came to a complete stop 4.6 seconds prior to the collision.  The data from the Tesla showed that it was under 100 percent acceleration between 4.6 and 1.2 seconds prior to the collision. 

The evidence

9. [9]
   Senior Constable Lisa Harris and Senior Constable Steven Porthill attended the scene.  Upon arrival, both officers commenced recording on their body worn cameras. 
10. [10]
    The applicant approached SC Porthill and identified himself as the driver of the Tesla.  SC Porthill asked the applicant what happened.  The applicant said he was looking at his GPS, doing about 60 to 70 kilometres per hour, when the other vehicle pulled out of nowhere. 
11. [11]
    Constable Harris approached the applicant and asked what happened.  He said that he was driving and looking at his GPS, and then hit the car.  The applicant said he was travelling at about 60 to 70 kilometres per hour.  Shortly afterwards Constable Harris had another conversation with the applicant.  She told him that she was going to “do a thorough Q and A”.  Constable Harris asked the applicant a series of questions in relation to the collision.  During this questioning the applicant said he could have avoided the collision if he had been driving slower and looking at the road.  He also said he was distracted by looking at his GPS. 
12. [12]
    The Tesla and the Volkswagen Polo were seized and taken to a secure holding yard at Rocklea on the day of the crash. 
13. [13]
    On 4 March 2022, Sergeant David Stocker attended the holding yard and removed the airbag control modules from the Tesla and the Volkswagen. The ACM records pre-crash data including vehicle speed, engine speed, and accelerator pedal percentage.^[5]
14. [14]
    On 9 March 2022, at the request of SC Holmes, SC Joseph Cook attended the secure holding yard to retrieve a USB device from the Tesla.  SC Cook subsequently transferred the data from the USB to the Brisbane Forensic Crash Unit fileserver and lodged the USB device in the security property drop-safe at Morningside Police Station.  He subsequently provided it to SC Holmes. 
15. [15]
    The USB device contained footage from cameras located on the front, rear and left and right sides of the Tesla.
16. [16]
    On 26 June 2022, SC Holmes prepared an Airbag Control Module Report. The primary function of the ACM is to control the deployment of restraint devices.^[6] The recording of pre-crash data is a secondary function of the ACM.^[7]  The Report was prepared for the purpose of providing an analysis of the crash data retrieved from the ACM in the Tesla.^[8]  In her report, SC Holmes states:

“2.6 This particular airbag control module can record up to 3 crash events which includes acceleration (△v) data both longitudinally through the vehicle (x) and laterally across the vehicle (y). This data is measured, calculated and stored internally within the airbag control module.

2.7 The module also records up to 5 seconds of pre-crash data which is transmitted to the airbag control module by various vehicle control modules and sensors via the vehicle’s communication network.  This data includes vehicle drive mode, vehicle speed, engine speed, accelerator pedal percentage and brake switch, stability control and ABS activity status.

…

4.3 The pre-crash data indicates that the vehicle was travelling at 1km/hr between 5 seconds to 4.6 seconds prior to the crash.  Between 4.4 seconds and 1.2 seconds prior to the crash, the vehicle was under 100% acceleration and accelerated from a speed               of 7km/hr to 94km/hr.  Between 0.8 seconds and 0.6 seconds prior to the crash, the vehicle achieved a maximum speed of 98km/hr.”

17. [17]
    SC Holmes reached the following conclusions:

“5.1 The crash data retrieved from the airbag control module relates to the crash on 14^th February 2022.

5.2 The subject vehicle was involved in an impact, which was sufficient to deploy driver front airbag, passenger front airbag, left and right curtain airbags.

5.3 The vehicle was travelling at 86km/hr at impact or up to half a second before impact.

5.4 At 0.8 seconds to 0.6 seconds prior to the collision the vehicle reached a speed of 98 km/hr.

5.5 These conclusions are based on the crash data retrieved from the airbag control module in conjunction with examination of the subject vehicle.

5.6 These conclusions should be further examined in conjunction with the other available evidence from the scene.”

A preliminary issue in relation to the requirement of a piggy-back cause of action

18. [18]
    A preliminary issue arises in relation to the effect of s 59 HRA which provides that a person may seek relief or remedy for a breach of s 58 only if they have an independent ground for seeking relief. 
19. [19]
    Section 58(1)(a) HRA provides that it is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights.^[9]
20. [20]
    Section 59 provides:

“59 Legal proceedings

1.  Subsection (2) applies if a person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that the act or decision was, other than because of section 58, unlawful.

2.  The person may seek the relief or remedy mentioned in subsection (1) on the ground of unlawfulness arising under section 58, even if the person may not be successful in obtaining the relief or remedy on the ground mentioned in subsection (1).

…”

21. [21]
    The Attorney-General conceded that, arguably, a breach of s 58(1) HRA may provide the element of unlawfulness for the purposes of another law, without the need to seek relief on independent grounds.^[10]
22. [22]
    In this case the applicant seeks the exclusion of the dashcam footage and ACM data on an independent ground of unlawfulness based on the contention that the seizures were not authorised by the Police Powers and Responsibilities Act 2000 (PPRA). 
23. [23]
    The applicant’s argument in relation to the admissibility of the roadside admissions based on the additional powers of police officers to obtain information about vehicle incidents,^[11] does not involve an allegation that the officers acted unlawfully under s 58(1) HRA, so there is no requirement to comply with the piggy-back clause in s 59 in relation to that ground.

The main issues

24. [24]
    The main issues are:

    1. whether the safeguards for persons being questioned for indictable offences in Chapter 15 Part 3 PPRA are imported into s 56 which relates to a police officer making enquiries about a vehicle involved in a “relevant vehicle incident”;
    2. whether the seizure of the USB stick and ACM data was authorised by s 56 PPRA or another provision;
    3. whether the act or decision of the police officers engaged the applicant’s right to privacy in s 25(a) HRA for the purposes of s 58(1)(a);
    4. whether the evidence of the roadside admissions or the evidence obtained from the USB and the ACM data should be excluded in the exercise of discretion;
    5. whether the opinion evidence of SC Holmes is admissible.

Police powers in relation to vehicles and traffic

25. [25]
    Chapter 3 PPRA provides for the powers of police officers relating to vehicles and traffic.  Relevantly for present purposes Chapter 3 includes the following provisions:

“54 Power of inquiry into road use contraventions

1.  It is lawful for a police officer to make any reasonably necessary inquiry, investigation, inspection, examination, or test for establishing whether or not an offence against the Road Use Management Act or the Heavy Vehicle National Law (Queensland) has been committed.

2.  Also, it is lawful for a police officer to arrange for someone else to make any reasonably necessary inspection, examination, or test for establishing whether or not an offence against the Road Use Management Act or the Heavy Vehicle National Law (Queensland) has been committed.

  …”

“56 Additional power of inquiry for relevant vehicle incidents

1.  It is lawful for a police officer to make any reasonably necessary inquiry, investigation, inspection, examination or test –

1.  to obtain information about a vehicle, train, tram, animal or other property involved in a relevant vehicle incident; or

2.  to obtain information about the cause of a relevant vehicle incident and the circumstances in which it happened.

2.  Also, it is lawful for a police officer to make any reasonably necessary inquiry or investigation to obtain information about a person involved in a relevant vehicle incident.

3.  For subsection (1) or (2), a police officer may require a person to answer any question put to the person by the police officer or provide information relevant to the incident.

4.  A person who is required by a police officer to provide information relevant to the incident must not provide any information the person knows to be false.

Maximum penalty for subsection (4) - 40 penalty units or 6 months imprisonment.”

26. [26]
    A “relevant vehicle incident” is defined as an incident involving a vehicle on a road in which death or injury was caused to a person or damage was caused to a vehicle.^[12]
27. [27]
    The respondent also relied on s 64 PPRA which empowers a police officer to copy, or take an extract from, a document in a vehicle, in certain circumstances. The provision states:

“64 Power to enter vehicles etc. other than for vehicle inspection

1.  This section applies to a police officer who reasonably suspects -

…

3.  a vehicle is being, or has just been, used to commit an offence against a transport Act or the Heavy Vehicle National Law (Queensland); or

4.  a vehicle, or a thing in or on it, may provide evidence of the commission of an offence against a transport Act or the Heavy Vehicle National Law (Queensland); or

…

2.  The police officer may, for enforcing a transport Act or the Heavy Vehicle National Law (Queensland) –

 …

5.  copy, or take an extract from, a document in the   vehicle; or

Example –

download information contained on a disk, tape or other device

…”

28. [28]
    Chapter 4 contains powers for police officers to seize and move vehicles. 
29. [29]
    Section 124 provides:

“124 Removal of vehicle or load or other thing

1.  A police officer may, in a prescribed circumstance, seize and move a vehicle, load or other thing mentioned in the prescribed circumstance, or arrange for it to be moved, to another place for safe keeping.

…”

30. [30]
    The prescribed circumstances for s 124 include where a police officer reasonably suspects a vehicle has been involved in a relevant vehicle incident and reasonably believes it is necessary to keep the vehicle for completing enquiries and investigations into the incident.^[13]
31. [31]
    The scope of the power to seize and examine things under the PPRA is provided by ss 618 and 619 which are as follows:

“618 Power to examine seized things

  619 Extent of power to examine seized things

The roadside admissions

32. [32]
    The first aspect requires a constructional choice of s 56 PPRA for the purposes of s 48 HRA. 
33. [33]
    Section 48 HRA provides:

“48 Interpretation

1.  All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.

2.  If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.

…”

34. [34]
    Section 8 HRA defines the meaning of “compatible with human rights”:

“8 Meaning of compatible with human rights

An act, decision or statutory provision is compatible with human rights if the act, decision or provision—

1.  does not limit a human right; or

2.  limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.”

35. [35]
    The constructional choice identified by the applicant is whether the safeguard in s 415(1) PPRA of “being questioned as a suspect about his or her involvement in the commission of an indictable offence” can be imported into s 56(1)(b).^[14]
36. [36]
    In The Australian Institute for Progress Ltd v The Electoral Commission of Queensland^[15] Applegarth J said that the statutory interpretation requirement in s 48(1) HRA has two aspects:

“(a) the consistency of an interpretation with the statutory provision’s purpose; and

(b) an interpretation which is ‘compatible with human rights’.”

37. [37]
    Section 48(1) HRA is an interpretative provision.  Where there is no constructional choice, the provision does not authorise the court to “effectively re-write legislation to make it compatible with human rights.”^[16]  Section 48(1) does not permit a construction of a statutory provision that is inconsistent with its purpose.^[17]
38. [38]
    The task of statutory construction requires consideration of the provision itself.^[18] 
39. [39]
    Section 56(1)(b) PPRA is unambiguous.  The provision makes it lawful for a police officer to make any reasonably necessary enquiry to obtain information about the cause of a relevant vehicle incident and the circumstances in which it happened.  The interpretation advanced by the applicant is not available and accordingly there is no identified constructional choice that s 48 HRA can assist to resolve.
40. [40]
    In R v Lewis,^[19] it was held that s 56 PPRA provided a clear legislative basis for police officers to ask questions relating to vehicles and traffic without first issuing a caution.
41. [41]
    The applicant’s argument that the decision R v Lewis was decided before the commencement of the HRA on 1 January 2020 and is therefore not binding or is at least distinguishable, cannot be accepted.  As the words in s 56 PPRA are clear, the enactment of the HRA does not affect the result in R v Lewis.  Moreover, the police officers did not require the applicant to answer questions or provide information pursuant to s 56(3) PPRA. In any event, the police officers gave evidence, which I accept, that they did not hold the suspicion that would have necessitated a caution pursuant to s 415(1) and s 431(1) PPRA.^[20]
42. [42]
    Accordingly, the police officers acted lawfully when asking the applicant questions.  There is no basis upon which the evidence should be excluded.

The seizure of the USB stick and airbag control module

43. [43]
    The applicant challenges the admissibility of the evidence obtained as a result of the seizure of the USB stick and the ACM on two bases.  First, it is submitted that Chapter 3 of the PPRA does not provide an express power to seize the items.  Second, it is submitted that the applicant’s right to privacy in s 25(a) HRA has been infringed because the right to privacy protects information about an individual and accordingly the seizures are unlawful pursuant to s 58(1)(a) HRA.

The scope of police powers of seizure

44. [44]
    The applicant’s argument is that the power of investigation in s 56(1) does not extend to “evidence gathering” and the provision does not permit “the retrieval of electronic devices from the car to gather evidence”.^[21]
45. [45]
    The context of s 56 PPRA does not require the narrow interpretation advanced by the applicant.
46. [46]
    The Tesla was involved in a “relevant vehicle incident”^[22] because the incident involved a vehicle on a road in which injury was caused to a person and damage was caused to vehicles.  It was therefore lawful for a police officer “to make any reasonably necessary enquiry, investigation, inspection, examination or test” in order to obtain information about the Tesla or to obtain information about the cause of the incident and the circumstances in which it happened.
47. [47]
    The police were empowered by s 124(1) PPRA to seize the Tesla and move it to the secure holding yard at Rocklea for safekeeping.^[23]  In this case the applicant agreed that his vehicle could be towed.^[24]
48. [48]
    The power to seize the Tesla included the power to examine it and arrange for someone else to examine it.^[25]  The power to examine the Tesla is very broad and includes a power to do things that are reasonably necessary for the investigative procedure.^[26]
49. [49]
    The respondent also relied on s 64(2)(e) PPRA^[27] as conferring a power to seize the items and download information.^[28]  However, that provision depends upon a police officer reasonably suspecting that a vehicle has been used to commit an offence against a transport Act,^[29] or a vehicle or a thing in it may provide evidence of the commission of an offence against a transport Act.^[30]  A transport Act includes the Transport Operations (Road Use Management) Act 1995 (TORUM).  A reasonable suspicion of an offence of careless driving^[31] may be sufficient to engage the powers in s 64 PPRA.
50. [50]
    The difficulty for the respondent in relying on s 64(2)(e) PPRA to justify the seizures and download is not only that any alleged offence against TORUM was not identified, but the evidence is contrary to the police having the requisite suspicion.  In cross-examination S C Harris was specifically asked about the applicant’s admissions that he was distracted and travelling at about 60 to 70 kilometres per hour and she said that at that stage she did not have proof that those factors caused the crash.^[32]

Right to privacy

51. [51]
    The issue is whether the seizure of the USB stick and ACM data is compatible with the applicant’s right to privacy in s 25(a) HRA which provides:

“25 Privacy and reputation

A person has the right—

1.  not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with;

…”

52. [52]
    It is unlawful for police officers “to act or make a decision in a way that is not compatible with human rights”.^[33]
53. [53]
    The meaning of “compatible with human rights” is contained in s 8 HRA which states:

“8 Meaning of compatible with human rights

An act, decision or statutory provision is compatible with human rights if the act, decision or provision—

1.  does not limit a human right; or

2.  limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.”

54. [54]
    The test of proportionality in s 13 HRA provides:

“13 Human rights may be limited

1.  A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

2.  In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—

1.  the nature of the human right;

2.  the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;

3.  the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;

4.  whether there are any less restrictive and reasonably available ways to achieve the purpose;

5.  the importance of the purpose of the limitation;

6.  the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;

7.  the balance between the matters mentioned in paragraphs (e) and (f).”

55. [55]
    The right to privacy is a broad concept.^[34]  Section 25 HRA is modelled on article 17 of the International Covenant on Civil and Political Rights (ICCPR).
56. [56]
    The explanatory notes to the Human Rights Bill 2018 state:

“The scope of the right to privacy is very broad. It protects privacy in the narrower sense including personal information, data collection and correspondence, but also extends to an individual’s private life more generally. For example, the right to privacy protects the individual against interference with their physical and mental integrity; freedom of thought and conscience; legal personality; individual identity, including appearance, clothing and gender; sexuality; family and home.”

57. [57]
    The scope of human rights may be informed by international jurisprudence^[35] taking into account the context in which those cases were decided.^[36]
58. [58]
    The question of whether data stored in a car is private information has been considered extensively by Canadian Courts.  The Canadian Charter of Rights and Freedoms protect against unreasonable searches and seizure.^[37]  The right is engaged where the person has a reasonable expectation of privacy.^[38]

59. [59]
    In R v Fedan,^[39] the Court of Appeal for British Columbia held that the appellant did not have a reasonable expectation of privacy in a sensing diagnostic module (SDM) and its data.  The Court said that the appellant’s “territorial privacy interest” in the SDM was extinguished by the lawful seizure of the vehicle and he held no “informational privacy interest” in the SDM data because it contained no personal information linking him to the operation of the vehicle at the time.^[40]  The data retrieved from the SDM provided critical and highly reliable information in relation to the vehicle’s speed, throttle and braking in the five seconds immediately before the collision.^[41]
60. [60]
    In R v Major,^[42] the Court of Appeal for Saskatchewan held that the appellant did not have an objectively reasonable expectation of privacy in the ACM or the event data recorder information.^[43]
61. [61]
    The issue in Canada is determined by consideration of whether a person’s expectation of privacy is subjectively held and objectively reasonable.^[44]
62. [62]
    The factors considered by Canadian Courts in determining whether there is a reasonable expectation of privacy are:  (a) the subject matter of the search;  (b) the person’s interest in the subject matter;  (c) the person’s subjective expectation of privacy; and (d) whether the person’s subjective expectation of privacy was objectively reasonable in the circumstances.^[45]
63. [63]
    The applicant sought to support his argument by drawing an analogy with data stored on a mobile phone.^[46]  In my view a mobile phone which may contain personal information is quite different to data which records the last five seconds of a collision.
64. [64]
    The applicant said to SC Porthill that he thought that the vehicle was fitted with dashcam.^[47]  However he did not assert that he had any expectation of privacy in the ACM or dashcam footage.
65. [65]
    Having regard to the fact that the ACM records up to five seconds of pre-crash data and the dashcam footage relates to the collision, I consider that the applicant does not have a reasonable expectation of privacy in the data.
66. [66]
    As was observed in R v Feden^[48] driving on a public road is a highly regulated activity which is open to public view.  Moreover any member of the public witnessing a collision would see the information recorded by an ACM.
67. [67]
    The right expressed in s 25(a) HRA is a right not to have a person’s privacy “unlawfully or arbitrarily interfered with”. In the event that I had concluded that the applicant’s dashcam and ACM data was private in nature, I would have concluded that any interference with his right to privacy was lawful and not arbitrary.
68. [68]
    An unlawful interference with a person’s privacy “infringes an applicable law”.^[49] An arbitrary interference with the right to privacy “… is one which is capricious, or has resulted from conduct which is unpredictable, unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought”.^[50]
69. [69]
    The police officers were empowered by s 56(1) PPRA to make any reasonably necessary inquiries in relation to the incident. The police officers pursued the legitimate aim of investigating the circumstances of the incident, so any interference with privacy was not arbitrary.

Discretionary exclusion of evidence

70. [70]
    In the event that I had concluded that the police officers acted unlawfully I would not have excluded the evidence.  A breach of s 56 PPRA and or s 58(1) HRA would enliven the discretion to exclude unlawfully or improperly obtained evidence.^[51]
71. [71]
    The fact that a human right has been breached will indicate the seriousness of the impropriety.^[52]
72. [72]
    The relevant factors to be considered in the exercise of discretion were summarised by Applegarth J in R v Versac,^[53]:

“(a) whether the unlawfulness was a deliberate or reckless disregard of the law, as distinct from a mere oversight or accidental non-compliance with the law;

2.  the cogency of the evidence and whether the nature of the illegality affects the cogency of the evidence so obtained;

3.  the importance of the evidence in the proceeding;

4.  the nature and seriousness of the offence;

5.  the nature of the unlawful conduct;

6.  whether such conduct is encouraged or tolerated by those in higher authority in the police force; and

7.  how easy it would have been to comply with the law.”

73. [73]
    In my view, any non-compliance with the PPRA or HRA would have been inadvertent rather than deliberate or reckless.  The evidence is cogent and important in the proceeding.  Moreover, the charge of dangerous operation of a vehicle causing grievous bodily harm while excessively speeding is serious.  Those factors would have justified the admission of the evidence in any event.

Expert evidence

74. [74]
    SC Holmes has been attached to the Forensic Crash Unit since November 2020.  Her qualifications include a Bachelor of Science (Geological Sciences Extended Major) from the University of Queensland, a number of specialist training courses and a number of courses related to the calculation of the speed of a vehicle involved in a collision.^[54]  She also has a Certificate IV in Road Accident Investigation.^[55]
75. [75]
    The Advanced Crash Reconstruction Course, the Crash Analysis Course and the Basic Crash Course specifically included training for the equation referred to in SC Holmes’ Crash Data Retrieval Report.^[56]  The courses assist with assessing or calculating speed.^[57]
76. [76]
    The conclusions stated by SC Holmes involved downloading the ACM and validating the data to ensure that it was correct.^[58]
77. [77]
    SC Holmes found that upon the download of the Tesla ACM, the information was extremely accurate.^[59]  The information included the recorded speeds from the Tesla data, the tyre diameter and the fixed gear ratio obtained from Tesla Customer Support.^[60]  The data and information is “inputted” into the formula.^[61]  She used the specific equation to validate the data and verify that it was correct.^[62] 
78. [78]
    The applicant accepted that the raw data is accurate^[63] and the equation used by SC Holmes for the calculation is correct.^[64]
79. [79]
    In Osland v R,^[65] Gaudron and Gummow JJ explained the basis for admitting expert evidence as follows:

“Expert evidence is admissible with respect to a relevant matter about which ordinary persons are ‘[not] able to form a sound judgment ... without the assistance of [those] possessing special knowledge or experience in the area’ and which is the subject ‘of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience’.”

80. [80]
    In Lang v R,^[66] Kiefel CJ and Gageler J said:

“Nonetheless, it remains a condition of the admissibility of evidence of the opinion of an expert at common law that the opinion be demonstrated to be based on specialised knowledge or experience of the expert that is beyond the common knowledge and experience attributable to the tribunal of fact. Only if that condition is satisfied can the opinion of the expert assist the tribunal of fact to form the requisite opinion of its own as to the inferences to be drawn from the evidence to make findings about disputed facts should the tribunal of fact be persuaded to accept and act upon the opinion.”

81. [81]
    The evidence of SC Holmes depends on the accuracy of the data and the correctness of the equation.  An expert witness may make mathematical calculations.  In discussing the admissibility of forensic accounting evidence in ASIC v Rich^[67] Austin J said:

“It seems to me that some of the work of a forensic accountant is to be treated as admissible in the same fashion as scientific facts. Suppose the report of a forensic accountant contains a complex financial calculation. The result of the calculation is not an opinion because, if the calculation is done correctly and the financial records from which it has been derived are proven, it is true as an analytic mathematical proposition without reliance on any inferences or questions of judgment. The expert’s work is mathematical and analytical rather than based on scientific observation, but in both cases there is a factual conclusion, admissible as evidence of fact, derived from the application of specialised knowledge.”

82. [82]
    By virtue of her study, training and experience SC Holmes is qualified to state the opinions in the Airbag Control Module Report.^[68]  The information and opinions stated by SC Holmes are outside the experience and knowledge of a judge and jury and are therefore properly the subject of expert evidence.^[69]
83. [83]
    The opinion evidence of SC Holmes satisfies the criteria for admissibility of expert evidence.

Conclusion

84. [84]
    I have concluded that:

    1. the roadside admissions are admissible. 
    2. the evidence relating to the seizure of the USB stick and ACM is admissible. 
    3. the expert evidence of SC Holmes is admissible. 
85. [85]
    Accordingly, the application is dismissed.