Swan v The Queen

[2013] VSCA 226

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Conviction appeal
4. › Substantial miscarriage of justice
5. › Admission of irrelevant and prejudicial evidence
6. › Evidence of drug use and addiction without causal link to offending
7. › Whether admission of evidence rendered trial unfair
8. › Criminal Procedure Act 2009 (Vic), s 276(2)(b)
1. Evidence
2. › Relevance
3. › Evidence of drug use tendered to prove fatigue
4. › Whether expert evidence established causal link between drug ingestion and driving impairment
5. › Evidence Act 2008 (Vic), ss 55, 56
1. Evidence
2. › Tendency evidence
3. › Evidence of habitual drug use tendered to prove drug use on particular occasion
4. › Failure to file tendency notice
5. › No application to dispense with notice requirement
6. › Evidence Act 2008 (Vic), ss 97(1), 100(1), 101(2)
1. Criminal Law
2. › Appeal
3. › Conviction appeal
4. › Failure of defence counsel to object at trial
5. › Whether failure to object precludes reliance on miscarriage on appeal
6. › Whether failure was rational tactical decision

Quick Take

In culpable driving prosecutions alleging negligence through fatigue, evidence of drug use is irrelevant unless expert evidence establishes a causal link between the drug ingestion and the driving impairment. Evidence of habitual drug use tendered to prove drug use on a particular occasion is tendency evidence requiring compliance with s 97(1) of the Evidence Act 2008 (Vic). The failure of defence counsel to object to inadmissible evidence does not preclude an appellant from relying on the resulting miscarriage of justice on appeal, provided the failure cannot be characterised as a rational tactical decision.