Using the X and Y co-ordinates, the approach and departure angles for each vehicle can be established from the crime scene plan. For this analysis the Honda Coupe was travelling along the X axis at an angle of 0 degrees. The Toyota utility was turning out of a driveway, however at the point of impact the Toyota was travelling at an angle of 235 degrees. Post impact the Honda Coupe has only changed direction by two degrees and the Toyota from 235 to 320 degrees."
79 The appellant contended that in this analysis, Sergeant Kelly simply undertook a geometric exercise utilising the scale plan of accident scene as an accurate and reliable representation of the position of the vehicles on the roadway. He made no mention of the "crush profile" of the vehicles, nor of "physical evidence", which apparently formed an important part of the analysis undertaken in the fourth report.
80 It was next contended that in the first report, Sergeant Kelly utilised a formula under the heading "Calculation of collision data" (para 7.5) to determine the impact speed of the vehicles, but did not identify the source of the formula, or explain why that formula was used, or how it operated. He concluded his analysis in his first report by stating that the restitution figure of 0.347 was "supportive of the plastic damage sustained to the vehicles involved". However, there was no identification of the plastic damage, nor was any source identified as the basis of that approach. The appellant also contended that the primary facts as recorded on the scale plan of accident scene were never proven in evidence. As I explain below, this last assertion is incorrect.
81 The appellant complained that this unsatisfactory position remained unchanged, despite the provision of the second and third reports. It was only in the fourth report that there was any reference to source material concerning the determination of momentum for angled impacts: see para 2.6.6. That source was Fricke. However, the portion of Fricke's manual that was attached to the fourth report which contained the formula specified at para 2.6.6, was particularly selective, consisting of one page only. It was submitted, therefore, that it was impossible for the appellant, during the course of the trial, to assess whether Sergeant Kelly's formula was based upon correct principles. Nor was the matter elucidated during the course of the voir dire, or during Sergeant Kelly's evidence in chief.
82 Senior counsel for the appellant next contended that it was apparent from para 6.4.1 of the fourth report that, notwithstanding his earlier references to physical evidence and crush profiles, Sergeant Kelly had in fact superimposed a protractor onto the plan of accident scene to explain how he had determined that at the point of impact the utility was travelling at an angle of 235 degrees. It was contended that the same process was used to conclude that post-impact, the utility had been displaced from 235 degrees, to 320 degrees, and that the appellant's vehicle had only changed direction by 2 degrees. (As I understand this evidence, the change of 2 degrees was the final position of rest, as compared to the initial angle of impact, as the evidence established that the appellant's vehicle had turned nearly 360 degrees.)
83 It was further submitted that the information contained in the plan of accident scene was never established by the evidence. This complaint can be immediately dismissed. The plan of accident scene was tendered in evidence as Exhibit 2. The content of the plan was supported by the evidence of Senior Constable West, who said that he attended at the scene of the accident, took measurements and made observations. In particular, he observed the position of the utility and recorded that it "was facing a south-westerly direction at a 45 degree angle to the western kerb alignment".
84 Senior counsel next complained that in his fourth report, Sergeant Kelly did not consider any alternate hypotheses as to the speed of the vehicles, should it be established that the approach and/or departure angles for either or both of the vehicles was different to that assumed by him to be the fact. However, two new matters emerged in the oral evidence. First, in his evidence on the voir dire, Sergeant Kelly stated that he had relied on the crush damage to determine the angles and that he had identified that damage from the photographs. He selected photographs numbered 7 and 10 as being the photographs he had relied upon. This evidence was repeated to the jury.
85 Next, during the voir dire, his Honour had asked Sergeant Kelly what the position would be in the event that the utility had come out of the driveway in a straight line (that is, at 270 degrees) rather than at the angle previously assumed (that is, 235 degrees). Sergeant Kelly stated this would result in a lower pre-impact speed that he could calculate, given time. His Honour asked Sergeant Kelly to undertake this exercise. Sergeant Kelly later gave evidence that in that instance, the speed of the appellant's vehicle would lessen to 82 km per hour.
86 Senior counsel for the appellant complained that prior to Sergeant Kelly's oral evidence, there had been no attempt to rely on anything other than the plan of accident scene (Exhibit 2) for the calculation of the pre-impact direction of travel of the vehicles. (There was an error in the appellant's submissions which made reference to Exhibit 8. An examination of the material indicates that the appellant must have been referring to Exhibit 2.) Likewise, the first time that any consideration had been given to the angle of impact of the utility being anything other than 235 degrees, was during the course of Sergeant Kelly's oral evidence.
87 It was submitted that it was impossible to properly deal with these new matters in the course of the trial. The witnesses who could comment upon the facts forming the basis of the new analyses had already given evidence. It was submitted that it would be unfair to the appellant if they were recalled. It was also submitted that having regard to the lack of precision in Sergeant Kelly's evidence prior to his oral evidence, it would be prejudicial to the appellant to undo these forensic decisions.
88 During the course of his evidence before the jury, Sergeant Kelly proffered the opinion that it did not matter, for the purposes of calculating the angle of the vehicles at the point of the collision, whether the utility spun three-quarters of a circle, or one and three-quarter circles. Sergeant Kelly eventually conceded that he did not know how much the utility had rotated, but maintained that the displacement was from 235 degrees to 320 degrees. The appellant submitted that this process of reasoning was illogical, had not been adverted to in any report, and was not supported by any identified literature. It was submitted that this necessarily undermined Sergeant Kelly's conclusion.
89 Relevantly, however, for the purposes of this ground of appeal, it was submitted that this evidence could not properly be dealt with by the appellant. The appellant contended that this was exemplified by the attempt made in cross-examination to deal with the matter. The result of that cross-examination was that Sergeant Kelly asserted that even without the benefit of calculations, the result, that is, the assessment of the speed of the appellant's Honda Civic, would be very similar.
90 The appellant argued that he was entitled, in advance of his trial, to be put in a position to either validate or invalidate assertions on this critical matter. It was also submitted that Sergeant Kelly's evidence as to the post-impact motion of the appellant's vehicle suffered from the same deficiencies as his other evidence, namely, that it was unsupported by primary facts.
91 The Crown made the following responses to the appellant's complaints on this aspect of the evidence. First, it submitted that although Sergeant Kelly's reports had been based upon the utility making a right hand turn out of the driveway, this was not an opinion he expressed at trial. That is not correct. At the end of his examination in chief, the counsel for the Crown asked Sergeant Kelly:
"Q. And one last thing in the course of your analysis of this collision, you assumed the utility was making a right hand turn onto Frederick Street from or near the driveway at number 89, correct?
A. Yes."
92 Sergeant Kelly was then asked whether it would make a difference if he assumed the utility had made a right-hand turn in the nature of a U-turn from the side of the road on Frederick Street in front of the appellant. Sergeant Kelly stated that this would not have made any difference to his analysis, as his analysis was based on the angle of the vehicles at the time of impact, regardless of where they came from. However, the Crown's mistaken submission is of little import. The question for consideration remains whether the appellant was, in all the circumstances, unfairly prejudiced in the way the trial was being conducted and whether that prejudice could have been cured.
93 The Crown submitted that had the appellant accepted an adjournment, his legal representatives would have had an appropriate opportunity to deal with the new material introduced in the fourth report. As to the complaints in respect of Sergeant Kelly's methodology in using a protractor, it was submitted that this was a matter for cross-examination at trial. The Crown also submitted that the appellant has not explained what questions it would or could have asked the witnesses, should they be recalled, that had not been put to them initially.
94 The next complaint relates to the opinion evidence introduced at the conclusion of Sergeant Kelly's evidence in chief as to the effect on the outcome of his analysis if he assumed that the utility had made a U-turn in front of the appellant. Sergeant Kelly said it would have made no difference to his analysis, which was based on the angle of the vehicles at the time of impact, regardless of where they had come from.
95 This evidence was a repetition of the evidence Sergeant Kelly had given during the course of cross-examination on the voir dire earlier that morning, when he had explained that his focus was on the "actual positioning of the vehicle at the time of impact". He had conceded in that regard, however, that if a vehicle was doing a "circle as distinct from going across in a straight line to make a right hand turn", it could affect the position of the vehicle at impact, depending upon the vehicle's turning circle. Sergeant Kelly had also agreed in his evidence on the voir dire that he had not done any calculations concerning the assumption that the utility was doing a U-turn, but had examined the impact damage (which, it will be recalled, was assessed from the photographs numbered 2 and 3).
"… and tried to put the vehicles together as best as possible given an impact damage. So I haven't looked at whether the vehicle's come from a driveway or whether it's doing a U turn."
96 There was, therefore, a shift in Sergeant Kelly's evidence from the voir dire to that given at trial. On the voir dire, Sergeant Kelly said that he had not considered where the utility had come from. However, in his evidence before the jury, Sergeant Kelly said that it would not have made any difference to the outcome of his analysis, which, he said, was based on the angle of the vehicles at the time of impact, regardless of where each had come from. This evidence had the effect of undermining the appellant's case, which had been conducted on the basis that Sergeant Kelly's evidence as it had been notified to the appellant prior to trial was seriously deficient in the aspects identified. On this particular aspect, the appellant's forensic position was that there was no evidence to support Sergeant Kelly's assumptions as to the angle of impact, and that he had not made any assessment of the speed of the Honda Civic, on the assumption that the angle of the vehicles at the point of collision was 90 degrees.
97 Not only did this evidence introduce a new consideration into the Crown case which was detrimental to the appellant's case, the new evidence had its own difficulties. In his evidence in chief before the jury, Sergeant Kelly said that he had estimated the angle of the utility at the point of impact from the "damage profile" on the utility. However, he also said that "the [utility] … was taking a particular path" at the time of collision.
98 That evidence appears to be inconsistent with Sergeant Kelly's evidence given on the voir dire that he had not "looked at whether the vehicle's come from a driveway or whether it's doing a U-turn". The Crown submitted that these were matters upon which the appellant could have appropriately cross-examined Sergeant Kelly at trial and did not demonstrate that the appellant was in any way prejudiced. I agree with this submission, insofar as Sergeant Kelly's evidence may have been inconsistent. There remains the question whether the new evidence placed the appellant in an unfair position.
· condition of the tyres
99 The next area of complaint related to the condition of the tyres of the Honda and the effect that would have had on the analysis of the collision and in particular, Sergeant Kelly's calculation of the pre-impact speed. The appellant relied upon the fact that Sergeant Kelly had not expressed any opinion in any of his reports as to the effect of tread depth on the front tyres as a factor relevant to the analysis of the appellant's speed. During the course of the voir dire on 5 February, the trial judge raised this matter with Sergeant Kelly, who expressed the opinion that he did not think it had a great effect at all. However, in his examination in chief, the Crown asked Sergeant Kelly if wear on the inside shoulder of the tread of the front tyres would cause him to make any change in his estimate of the pre-skid speed. Sergeant Kelly responded that it would not and gave a lengthy explanation as to why that was so. The appellant complains that this was another instance of having to deal with a new opinion "on the run".
100 The Crown responded by again stating that the appellant had given no explanation as to why this issue could not be dealt with if given an appropriate adjournment.