Meakin v R

Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/55959 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law - Criminal Citation: [2016] NSWSC 1602 Date of Decision: 18 November 2016 Before: Davies J File Number(s): 2014/55959

Judgment

1. MACFARLAN JA: On 4 August 2016 the appellant, Mr Michael Meakin, was found guilty by a jury of the murder of Mr Nicholas McEvoy ("the deceased") on 21 February 2014. On 18 November 2016 the trial judge sentenced him to a term of imprisonment of 24 years, with a non-parole period of 18 years.
2. The deceased died after being struck by a Toyota HiAce van, driven by the appellant, on Richmond Road, Plumpton in Sydney, in fine weather. The Crown case was that the deceased was walking on the grass verge next to the road, shortly after midnight, when the appellant drove deliberately on to the verge and struck him from behind, with an intention at least to cause grievous bodily harm. The defence case was that the appellant was driving along the left of two eastbound lanes on the road (lane one) when the deceased unexpectedly stepped in front of his vehicle, resulting in him being unable to avoid hitting the deceased.
3. It was common ground at the trial that the appellant and the deceased were both intoxicated and that shortly before the collision they had had an altercation at the nearby Plumpton Hotel. The appellant did not stop after the collision. Instead, he drove to his home by back roads and, when he arrived home, ensured that his vehicle was parked out of sight. Drivers of other vehicles noticed the deceased's body on the grass verge soon after midnight and summoned assistance.
4. There being no eye witnesses to the collision, the Crown case was a circumstantial one relying, in summary, upon the following: 1. Evidence of the altercation, and consequent animosity that the appellant displayed towards the deceased at the Plumpton Hotel; 2. The appellant's decision, on leaving the Plumpton Hotel, to drive east along Richmond Road, rather than towards his home to the west, after the appellant allegedly observed that the deceased left on foot headed east from the hotel car park; 3. The nature of the damage to the vehicle and the location of the injuries to the deceased, which indicated that he had been hit from behind; 4. The location on the grass verge of debris from the collision and the nature of the damage to that debris, demonstrating, in the opinion of the Crown's crash investigation expert, that the impact had occurred on the verge; 5. Evidence from a palynologist about pollen found on parts of the appellant's vehicle, allegedly indicating that at least the left side of the appellant's van had travelled over the grass verge; and 6. The appellant's flight from the scene and attempt to avoid detection.
5. In his case, the appellant gave evidence that his vehicle had hit the deceased accidentally, that he was unaware that the person he hit was the person with whom he had recently had an altercation and that he had fled the scene of the collision because he knew that he was over the prescribed blood alcohol limit. He called crash investigation and palynology experts to give evidence which he contended negated any inference that the collision occurred on the grass verge, this being a proposition which he submitted was essential to the prosecution's proof of his intention to kill or injure the deceased.
6. On appeal the appellant relies on the following two grounds: 1. The verdict was unreasonable and unable to be supported by the evidence; and 2. "The Trial Judge erred in leaving to the jury evidence of the Appellant's flight from the scene, or alternatively leaving such evidence to the jury as evidence of consciousness of his guilt". As Ground 1 does not invoke "a question of law", the appellant requires leave to appeal in respect of it, under s 5(1) of the Criminal Appeal Act 1912 (NSW).
7. For the reasons stated below, I consider that leave to appeal should be granted, Ground 1 upheld and the appellant's conviction of murder set aside. A verdict of acquittal of murder should be entered. In those circumstances, Ground 2 does not arise but I nevertheless conclude below that it is well-founded as the appellant's conduct after the collision was not capable of indicating a consciousness of guilt of murder, as distinct from guilt of some lesser charge such as manslaughter or the alternative offence charged in the indictment against him. That alternative charge was that the appellant was driving his vehicle when it caused the death of the deceased and at the time of impact he was under the influence of intoxicating liquor in circumstances of aggravation, namely, that his blood-alcohol level was in excess of the prescribed concentration (s 52A(2) Crimes Act 1900 (NSW)). Neither party submitted to this Court that if the murder conviction were quashed, this Court should do other in relation to Count 2 than remit the proceedings against the appellant for trial on that count.

The events at the Plumpton Hotel

1. The deceased's brother, Mr Barry McEvoy, gave evidence that the deceased came to his home in the late afternoon of 20 February 2014 and that they consumed a considerable quantity of beer before the deceased left at about 10.30pm carrying five or six cans of beer in a black plastic bag.
2. Soon after, Mr Brendan Wetere, a security guard working at the Plumpton Hotel, noticed the deceased enter the hotel. Mr Wetere saw the deceased watch a game of pool between the appellant and another hotel patron, known as "Chicken". The deceased was not acquainted with either. Throughout the game, the deceased encouraged Chicken, jumping up, screaming and then hugging Chicken when he won the game. Mr Wetere also observed the appellant to be annoyed by the deceased's behaviour. Chicken heard the appellant tell the deceased to "piss off".
3. As Mr Wetere considered that the deceased was intoxicated, he asked him to leave and walked him out to the hotel car park. The appellant then came out and exchanged unfriendly words with the deceased. The appellant swung a punch at the deceased but he did not connect. Mr Wetere escorted the deceased part of the way through the car park and told him to go home. The deceased then walked diagonally across the car park and in the direction of Blacktown, which was to the east. As he did, he jumped around, shadow boxing.
4. CCTV footage supports Mr Wetere's evidence and it also shows the appellant purchasing some 21 glasses of beer during the course of the afternoon and evening. The footage of the deceased walking across the car park indicates that he was not then carrying anything but, as the plastic bag and beer cans to which Mr McEvoy referred were subsequently found at the scene of the collision, it is probable that the deceased hid them somewhere near the car park on his arrival at the hotel and retrieved them on his departure. The footage shows the appellant's van leaving the car park a few minutes after the deceased had left.

Evidence of the passing motorists

1. Mr George Jarman was driving east along Richmond Road at about, or shortly after, midnight on the night of the collision. He saw a man walking along the footpath (in fact the grass verge) "trying to put a jumper on and trying to hitchhike at the same time". He said the man was walking "along the footpath right on the edge" and that he was "staggering". He saw the man's arm come out and thought that he was hitchhiking. He said that the man was about a metre from the gutter and commented to his wife that he looked drunk. Later in his evidence, Mr Jarman repeated that the man was "staggering" as he was walking.
2. Ms Melinda Boucher, who was in the car with Mr Jarman, her husband, also said that she saw a man "staggering" and trying to put a jumper on. Again, she said that she thought the man was trying to hitchhike because his arm came out as they drove past. She said "it looked like the man was trying to pull something over his head with the other hand as he was stumbling along". Ms Boucher was asked whether the "jumper" could have been a plastic bag, as no jumper was found at the scene of the collision, but she said that she did not know if it was.
3. Shortly after midnight Ms Rhonda Layoun was driving east along Richmond Road when she saw a man, the deceased, lying on the grass verge. She telephoned for an ambulance and returned to the location where she had seen the man. Ambulance records show that her call was made between 27 and 28 minutes past midnight. Ms Layoun also saw a shoe lying in one lane of the road and a car side mirror in the other. Other persons who stopped to assist gave evidence concerning debris found at the scene but none saw a mirror on the road. Likewise, none of the ambulance paramedics or police officers who subsequently attended the scene saw a mirror on the road. On the contrary, some of them saw it on the grass verge and a number of witnesses also saw a shoe on the road.
4. Senior Constable Kristy Foster of the Police Crash Investigation Unit attended the scene at about 1.30am. She made a record of items of evidentiary significance and placed markers adjacent to them. A scale plan of the site showing these items was tendered as Exhibit D. Exhibit D shows the grass verge, approximately five metres wide, running along the northern side of Richmond Road. The verge is separated from the road by a concrete gutter. On the north side of the verge, there is an embankment that falls away to the north.

The damage to the van

1. Senior Constable Leanne Gearside of the Crime Scene Unit examined the appellant's van on the evening of 21 February 2014. She said that the major impact site with the vehicle was in a vertical line up the front bumper bar on the passenger side, through the headlight and onto the windscreen. After that examination she went to the Richmond Road site. She noticed that the grass verge was damp, but did not have any recollection of it raining that day.

The injuries to the deceased

1. Dr Issabella Brouwer, a forensic pathologist, conducted a post-mortem examination of the deceased's body. She found that his injuries were consistent with a collision with a motor vehicle and that, due to the extent of his injuries, death would have likely occurred instantaneously on, or soon after, impact. She said that the impact was to the back of the deceased's body, with greater focus on the left hand side.
2. Whilst Dr Brouwer concluded that the deceased was hit substantially from behind, she could not say whether he was turned slightly one way or another.

The intoxication of the appellant and the deceased

1. Dr Judith Perl, a forensic pharmacologist, was called by the Crown to give expert evidence concerning the intoxication of the appellant and the deceased.
2. Based on assumptions concerning the quantity of alcohol consumed by the appellant (deriving from the CCTV footage from the Plumpton Hotel) (see [11] above), Dr Perl calculated that at shortly after midnight on 21 February 2014 the appellant's blood alcohol concentration would have been between .257 and .313 per 100 millilitres, with a median reading of .285. She said that most people with that blood alcohol concentration would appear to be drunk, although people with a high alcohol tolerance might not have that appearance when engaging in everyday activities such as walking and talking. Nevertheless, as driving skills are uniquely demanding of a person's brain function, even people with a high tolerance to alcohol would be "grossly affected" when driving.
3. Moreover, Dr Perl gave evidence that when a person has a blood alcohol level of above .2, their visual speed will be greatly reduced, and that if something occurs in that person's peripheral field of vision then it is likely that their brain will not be able to cope with that information and will therefore ignore it. She also noted that when a person has a blood alcohol level of above .15 their reaction skills, including the ability to recognise, process and act, as well as track whilst driving, will also be "very significantly" reduced.
4. Dr Perl was referred to a certificate of analysis of the deceased's pathology indicating that his blood alcohol level was .167 at the time of his death (Exhibit 12). She agreed that in these circumstances his fine and gross motor skills would have been impaired "very significantly", but indicated that, at that level, highly alcohol-tolerant people might not show visible signs of intoxication, such as unsteadiness and swaying. She recognised that other factors, including lighting and uneven surfaces, could impact on an intoxicated person's steadiness.
5. Upon viewing the CCTV footage of the deceased at the Plumpton Hotel, Dr Perl found little evidence of "obvious" intoxication. She concluded that the deceased was a "regular, very experienced drinker" and that it was "highly unlikely" that he would trip or fall. She added that "[he] may have [had] a little bit of unsteadiness, depending on the surface that he [was] walking on, but nothing that would cause him any great difficulty". She acknowledged, however, first, that the deceased showed some signs of swaying and unsteadiness and, secondly, that the deceased's increasing loudness and signs of disinhibition during the course of his time at the Plumpton Hotel were "very consistent" with intoxication.

Mr George's expert accident investigation evidence

1. The Crown relied on Mr George's evidence to establish the location of the collision between the deceased and the appellant's van as well as to exclude the reasonable possibility that the collision occurred in the manner that the appellant claimed, namely on the roadway.
2. At the conclusion of his evidence-in chief, Mr George summarised his opinion as follows: "Q. What is your opinion about where the collision took place in that north-south plane, in other words, whether it was on the sealed road surface or on the verge? A. Yes. Well, … I believe it happened over the grassed area, but I don't believe it was very far onto the grass. I believe it was close to the kerb because, if it was further over, you'd expect that there would be some - some tyre marks heading back to the roadway. So, it would - if it was on the grass, it would be very close to the kerb. Q. Is it your opinion that it was on the grass, the point of collision with the deceased? A. Yes. But it's on the balance of probability for me because, you know, I would like - I would have liked to have seen tyre marks and I would liked to have seen an impact scuff mark from the shoes, you know, whether it be on the bitumen or on the grass. But when you look at the accumulative information from the other - all those aspects of, you know, physical evidence that has all the dirt and the grass and mud on them, you know, it really does identify that this accident most likely occurred over the grassed area."
3. Mr George's opinion was that the collision would have occurred on the grass verge, or at "a relatively short distance to the west" of where two beer cans were found midway between the eastern and western signposts on the grass verge near the kerb.
4. Mr George gave the following evidence concerning those two beer cans: "Q. If one accepts that the beer cans had been carried in the plastic bag at the time of the collision, and that is in the deceased's left hand, did the position of the beer cans have any relevance to your findings in relation to the movements of the deceased? A. They form a part. So vehicle/pedestrian crash research demonstrate fairly consistently that loose items, you know, that might be held or on a pedestrian such as shopping bags, glasses, hats, they can be knocked off and land very close to where the impact occurs. So based on that theory, if the beer cans were being carried by the deceased, then they would be a good indicator as to the proximity of the crash."

Dr Milne's expert palynology evidence

1. Dr Lynette Milne is an expert in palynology, that is, "the study of pollen, spores and other acid resistant microscopic botanical type particles". The Crown relied upon her evidence to establish that the appellant's van had driven on to the grass verge when the collision occurred.
2. Dr Milne examined and compared soil samples and swabs taken from the collision site at Richmond Road, the appellant's property at Freemans Reach, the deceased's shirt as well as the tyre, mudflaps and underside of the appellant's van.
3. Dr Milne identified five insect-pollinated pollen types that occurred at Richmond Road and not at Freemans Reach. According to Dr Milne, the significance of insect pollination, and therefore these identified pollen types, is that because pollination is not windborne it does not move far from the parent plant (although it can remain in the soil even after the plant is no longer present).
4. She gave the following evidence concerning swabs taken from underneath the van: "Q. Would you expect to find [the five insect-pollinated pollen types] in the swabs taken underneath the vehicle if the vehicle had simply driven past, for example, the Richmond Road area on the roadway? A. No, definitely not. The only pollen that you're going to find on the road, if any, is windblown pollen, and then it is constantly refloated. Because the pollen from insect pollinated plants is a bit heavier, it is not designed, it is not aerodynamic, it is not designed to fly through the air, you will only find them in the soil that is close to where the parent plant has been. For it to have to actually get on the road it has to be blown on, and then it is constantly recycled anyway. … Q. And the question of whether that vehicle had been in contact with the soil in that area? A. Yes. My considered opinion was that there was enough evidence from the pollen that the vehicle, in particular the passenger side and likely the rear driver's side, had recently driven over a grassed area or damp soil area containing pollen assemblage comparable with that at the Richmond Road site before the mud flap and tyre tread swab samples were taken. Q. When you say 'before', is it possible that it was weeks or months before or not? A. If the scene of crime or forensic officers did their work as they were taught, no, they would be only collecting the most recent. Q. Is it possible that the assemblages you found on the swabs could have come from the Freemans Reach site? A. I don't believe that - the majority of the material on the swabs appears to have come from Richmond Road, and I suspect there would be a little bit that also came from Freemans Reach. But I cannot identify any, apart from tricolporate LC, that does not occur on Richmond Road, it does occur in the swabs, and there's a couple of others but they are very minor."

The appellant's evidence

1. The appellant gave evidence that he was feeling drunk by the end of the evening of 20 February 2014. He remembered someone who he did not know (in fact, the deceased) interrupting his pool game and being "just loud and rude". He remembered the bouncer taking the deceased outside as well as going outside and throwing a punch. He said that it was a small altercation that did not mean much to him at the time.
2. He gave evidence that he then decided to leave and get something to eat at Woodcroft McDonalds "[b]ecause it was close". (It was about two kilometres to the east along Richmond Road.) He said that he wanted to have something to eat before he drove 20 odd kilometres to his home (which was to the west).
3. He said that he came out of the car park in his van and turned right onto Richmond Road, heading east, and "[a]bout, I don't know, 3 or 400 metres away someone stepped out and I collided with the person. Then I panicked and went to the next intersection and drove home". He said that he did not have any idea as to who the person was, whether they were male or female, or whether they were alive. He said that he knew that he was "over the limit" and that he did not have any idea who he had collided with. He denied that he deliberately drove at the deceased.

Mr Booth's expert crash investigation evidence

1. The defence called Mr Booth to give expert crash investigation evidence. He identified four possible points of impact, each of which was on the roadway. He expressed the view that Mr George's analysis was unreliable and flawed.
2. Mr Booth particularly relied on: 1. Ms Layoun's evidence that the broken side mirror was sitting on the roadway when she pulled up; 2. The appearance of coarse abrasions, or parallel lines, on the deceased's shoe consistent with his having been on the roadway when he was hit and that the "mud loadings" on the shoes, as identified by Mr George, were actually exposed rubber caused by the sole of the shoe having worn away; 3. The absence of tyre marks on the grass verge; and 4. His perception of the direction of the "furrow". He considered that, in light of the mud and dirt on the deceased's shorts and shirt, the deceased's body landed on the furrow and created "the track that's coming out of it", that is, the disturbance of the grass "on the departure side of the furrow towards the east".
3. Mr Booth opined that there was no scientific, or mathematical support, for Mr George's evidence in relation to, first, the trajectory diagram, secondly, his associated reliance on the positioning of only two out of the four beer cans, or the positioning of the beer cans generally, thirdly, the flicker of mud and grass on the windscreen of the van and, finally, the location at which the side mirror was found on the roadway.
4. Mr Booth said that he would "most definitely" have expected there to have been tyre marks if the van had driven onto the grass verge "because the ground is soft" and likely to be damp. He said that there was "no likelihood" of the impact occurring on the verge without tyre marks being left there. He stated that that opinion was not dependent on the softness of the ground or the speed of the vehicle, nor did it assume that the tyres would have skidded.
5. In cross-examination, Mr Booth was shown a police photograph of a Toyota LandCruiser parked on the grass verge near the scene of the collision during the police investigation. He agreed that he could not see any tyre marks leading to or from the vehicle. When it was suggested to him that the appellant's van may therefore not have left tyre marks he said "did he [that is, the LandCruiser] drive forward or backwards? How did he get there? Which direction did he come? If you - where is he there?"

Dr Mildenhall's expert palynology evidence

1. Called to give evidence by the defence, Dr Dallas Mildenhall stated that, whilst insect-pollinated pollens are usually distributed "almost immediately", or within a few metres, around the parent plant, "insects can travel quite a distance so the pollen that they carry can be carried quite a distance away from the parent plant … " He said that he expected therefore that insects could have dispersed the pollen types that Dr Milne had identified on the roadway.
2. Whilst Dr Mildenhall agreed that the pollen Santalum was very rare, he pointed out that the percentage of that pollen in the samples taken from underneath the appellant's van was 2.2% ,whereas in the sample taken from the Richmond Road grass verge there was only 0.2%. He said that this suggested to him that the Santalum pollen did not come from the Richmond Road site but from somewhere else.
3. Ultimately, Dr Mildenhall disputed Dr Milne's method of comparison of the pollen assemblages. He also said that he could not test the findings in her report as she had given the pollen types unique names that made it difficult to assess what pollens had in fact been identified.

THE CROWN'S CIRCUMSTANTIAL CASE AT TRIAL

1. At the trial, the Crown characterised the contest between it and the appellant as being as to whether the collision occurred on the sealed surface, or off the edge of, the roadway. The Crown stated: "Two questions to be asked. One, was it on the road or was it on the grass? If it was on the grass, even right at the edge of the road, even right on the gutter, that is on the top part of the gutter, if it occurred there then you might think it was deliberate, that the collision was the intended consequence of the actions of the accused. If you find that it was on the grass anywhere, it is, in my submission to you, easier to resolve the question of why it happened and the question of what was the accused's intention, because of its position off the road."
2. On appeal the Crown confirmed that it conducted the trial on the basis that, for the appellant to be found guilty of murder, it was necessary for the jury to find that the collision occurred off the roadway (Transcript p 25). In these circumstances, occurrence of the collision off the roadway was in my view an "indispensable link […] in a chain of reasoning towards an inference of guilt" and therefore had to be proved beyond reasonable doubt (Shepherd v The Queen (1990) 170 CLR 573 at 579; [1990] HCA 56).
3. At the trial, the Crown submitted that the following matters gave rise to the "irresistible inference" that the collision occurred off the roadway and that the appellant therefore intended his van to hit the deceased and kill or seriously harm him.
4. First, at the Plumpton Hotel, the appellant displayed "considerable animosity" towards the deceased, as evidenced by the words exchanged between the appellant and the deceased as well as the appellant's attempt (albeit unsuccessful) to punch the deceased.
5. Secondly, at the Hotel, the appellant became "increasingly agitated and angry" at the deceased. The CCTV footage showed that the appellant appeared to watch the deceased as he crossed the car park, heading towards the east. It also showed that, shortly before he left, the appellant locked and unlocked his van more than once, indicating he was still agitated. Moreover, rather than heading west towards his home, the appellant drove his van to the east along Richmond Road.
6. Thirdly, the location and condition of both the deceased's body and the debris from the collision indicated that it occurred away from the roadway, for the following reasons: 1. The deceased was lying with his feet closer to the roadway than his head, such that his head was a couple of metres away from the roadway. His body did not show any road-related injuries; 2. All four beer cans that the deceased had had in his plastic bag as well as a piece of the van's headlight were found off the roadway. The resting position of the two beer cans near the kerb was significant because Mr George gave evidence that loose things held by, or located on, pedestrians when they are struck tend to fall close to where the impact took place; 3. Pieces of the casing of the van's left mirror were found in the roadway gutter and the body of the side mirror was found on the grass verge. The soil on the mirror body indicated that it had struck the ground off the roadway. There was no evidence of it, or the mirror pieces, having had contact with the roadway; 4. There were glass fragments from the windscreen of the vehicle in the furrow on the grass verge; 5. One of the deceased's shoes was found lying in the gutter, not out further on the roadway; and 6. All of the debris was off the roadway, or in the gutter only. If the van was positioned in the middle of lane one and the collision occurred there, it could be expected that there would have been some evidence on the road surface either by way of debris or marks. The lane was 3.3 metres wide, whilst the van was considerably less than that. There were no skid marks on the roadway nor any marks made by the deceased's shoes on the roadway.

The unreasonable verdict ground of appeal

1. The principles applicable to an unreasonable verdict ground of appeal were recently re-stated by Bathurst CJ (with the concurrence of Johnson and Fullerton JJ) in Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [84]-[86] as follows: "The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the Court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-494, namely that the court is required to make its own 'independent assessment of the evidence'. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M supra the court also stated (at 494) that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced' and '[i]t is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred': see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59]. As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt that the court can conclude that there was no miscarriage of justice. In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46]-[48]."

Circumstantial cases

1. The following principles are well established in relation to cases sought to be proved by circumstantial evidence.
2. In Barca v The Queen (1975) 133 CLR 82 at 104; [1975] HCA 42, the plurality said: "When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilty of the accused' … To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw' …" (citations omitted). See also The Queen v Baden-Clay at [46], [50].
3. Therefore, where the Crown's case substantially rests on circumstantial evidence, a jury cannot return a guilty verdict unless the Crown has excluded all reasonable hypotheses consistent with innocence. For an hypothesis to be reasonable, it "must rest upon something more than mere conjecture" (Peacock v The King (1911) 13 CLR 619 at 661; [1911] HCA 66).
4. In The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46], the plurality said in relation to circumstantial cases: "It is of critical importance to recognise … that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence".
5. That observation was cited with approval by the plurality in The Queen v Baden-Clay at [47]. Their Honours emphasised the words "all of the circumstances" in that passage and added that "[t]he evidence is not to be looked at in a piecemeal fashion, at trial or on appeal" (ibid).
6. Moreover, it is not for the defence "either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that tend to support such an inference": The Queen v Baden-Clay at [62], quoting Barca at 105.

DETERMINATION OF THE APPEAL - WHETHER VERDICT UNREASONABLE (GROUND 1)

1. The need to consider, in its totality, the evidence relied upon in support of a circumstantial case does not preclude the consideration, as a first step, of the individual items of evidence the Crown relied upon. I proceed to take that step now, by reference to the manner in which the Crown put its case at the trial and using the numbering I have adopted in [68] to [78] above.
2. The first matter that the Crown relied upon was the animosity displayed by the appellant towards the deceased at the Plumpton Hotel. Different views were available as to the level of animosity involved but it was open to the jury to take the view that the appellant was very angry with the deceased and that this might have provided a motive for the appellant to murder him.
3. Secondly, although contrary inferences were also available, it was open to the jury to take the view that the appellant's agitation and anger continued, and perhaps even increased, whilst he and the deceased were in the car park. Similarly, whilst the view was available that the CCTV footage did not clearly show the appellant watching the deceased as he crossed the car park and headed east, it was open to the jury to conclude otherwise.
4. Moreover, the fact that the appellant did not head west from the hotel towards his home, but east along Richmond Road, was a matter for the jury to take into account, but it was of limited significance in light of the possibility of there being legitimate reasons for him doing so, such as, as he said in evidence, his heading towards a nearby McDonalds restaurant to obtain food before driving about 20 kilometres to his home.
5. Thirdly, the Crown relied upon the location and condition of both the collision debris and the deceased's body. It referred to the particular matters identified at [70] above. I comment as follows: (1) The fact that the deceased's body was found on the grass verge and not lying on the roadway was of limited significance. As the Crown's crash investigation expert, Mr George, acknowledged "[t]here is a whole raft of variables when you've got bodies in motion". He said that items involved in the collision (and therefore presumably also the deceased's body) would "go in an easterly direction, given that that's the velocity of the vehicle" but that they "could fan out in either direction". He acknowledged that the fact that the body of the left side mirror landed on the grass verge did not, of itself, indicate that the collision occurred on the verge and accepted that "nothing in isolation" pointed to that. In particular, he did not suggest in his evidence that the final resting position of the deceased's body was inconsistent with the collision having occurred on the road. (2) Similar comments are applicable to the fact that the four beer cans and a piece of the van's headlight were found off the roadway, although Mr George gave greater, but not determinative, significance to the resting position of the two beer cans referred to at [29] above. His view as to these two cans was however only based on unidentified "vehicle/pedestrian crash research" that he said demonstrated "fairly consistently" that "loose items" "can be knocked off and land very close to where the impact occurs" (emphasis added) (ibid). Moreover, later in his evidence, Mr George indicated that when he said that research indicated that loose items tended to fall "close" to the impact site, he was referring to items falling within about two metres of the accident site. This concession rendered his evidence on this topic of little significance as the two beer cans were found within about a metre of the roadway. In addition, Mr George did not give any satisfactory explanation, consistent with his view that loose items tend to fall close to an impact site, as to why the other two beer cans, which were apparently also in the plastic bag being carried by the deceased at the time of the collision, were found considerably further away. (3)-(6) For the reasons already given, the finding of other debris on the grass or in the road gutter was not inconsistent with the collision having occurred on the roadway. Similarly, that the road lane was wider than the van was not of any particular significance, bearing in mind that the appellant, who was driving the van, was, on any view, heavily intoxicated. Dr Perl's evidence was that his driving skills would have been "grossly affected". Some deviation of the van from the centre of lane one would not therefore have been surprising or indicative of the appellant intending to drive at the deceased.

Conclusion as to whether verdict unreasonable

1. As is necessary, I have considered the evidence in its totality, assessing the united force of the matters that the Crown relied on. Having done so and conducted an independent review of the evidence at the trial, both as to its sufficiency and its quality, I am left with a reasonable doubt as to the appellant's guilt of murder.
2. The jury's absence of such doubt is not in my view explicable by any advantage it had over this Court. Questions of credibility of course arose at the trial in relation to the appellant's evidence but I have put the appellant's evidence aside for the purpose of the present analysis and considered the strength or otherwise of the prosecution's case. Thus I have not assumed that the jury accepted any of the appellant's evidence. Moreover, there are no significant respects in which the Crown contended that its case was advantaged by the appellant's evidence (cf The Queen v Hillier at [49]-[52]).
3. Certainly, the jury had to consider conflicting evidence given by the prosecution and defence experts, but their evidence was of a complicated nature and this Court has had the considerable advantage of having the opportunity to conduct a protracted examination of the relevant transcript and exhibits. At least, it cannot be said that the jury had any advantage over this Court in its ability to address that evidence.
4. In the particular circumstances of this case, any advantage the jury had over this Court in having seen and heard the witnesses give their evidence was limited, in particular because there was no other significant conflict of evidence to be resolved. The jury had a view of the places at which the relevant events occurred but the Crown did not suggest at the trial or on appeal that the view enabled the jury to determine any matter that was not apparent from the oral and documentary evidence. In particular, (subject to the Crown's passing observation to the jury that "you attended the scene" quoted in [78] above) the Crown did not suggest that the jury's view of the collision scene, more than two years after it occurred, might have enabled it to determine whether the appellant's van would or would not have been likely to leave tyre marks on the grass verge if it had travelled on it. Instead, the Crown relied in this respect on the photograph of a Toyota LandCruiser referred to in [116] above.

GROUND 2 - THE APPELLANT'S POST COLLISION CONDUCT

1. In its closing address, the Crown relied upon the appellant's conduct after the collision as evidence that he was conscious of his guilt of murder (see [77] above). The conduct was, in summary, that the appellant did not stop after the collision, travelled to his home through back streets to avoid being seen, parked his van behind his house to hide it, left for work the next morning in an apparently normal fashion and did not report the collision until later in the day. The appellant did not object to the admission of this evidence at the trial and by his grounds of appeal does not seek to challenge that admission. Instead, on appeal, the appellant challenges the trial judge's decision to leave the evidence to the jury as evidence of his guilt of murder.
2. At the conclusion of the evidence at the trial, the appellant's then counsel submitted to the trial judge that the evidence of the appellant's conduct should not be left to the jury as evidence of "consciousness of guilt of murder, because of the clear alternate where's there's an alternate charge on the indictment, for which flight could be comfortably considered consciousness of guilt of that charge".
3. His Honour rejected this submission and subsequently included the following in his summing-up to the jury: "Now, the matter of consciousness of guilt, and flight. You heard me mention the notion of consciousness of guilt. This matter alone cannot prove the guilt of the accused. The Crown says, however, that you can take it into account with all of the other evidence, to reach a view about the accused's guilt. To take it into account you need to find two things. First, you must find that what the accused did relates to an issue that is relevant to the offence the Crown alleges the accused committed, that is, murder. It must relate to some significant circumstance or event connected with the offence. Leaving the scene of a killing may be such a matter. Secondly, you must find that the reason the accused did it is because he feared that admitting he had struck the deceased might reveal his guilt in respect of the murder charge. In other words, he feared that admitting what had happened would implicate him in the commission of the offence of murder for which he is now on trial. But you must remember that people do not always act rationally, and the conduct that's been considered may sometimes be explained in other ways. A person may have a reason for not owning up, quite apart from trying to conceal their guilt. For example, it might be done out of panic, or to escape an unjust accusation, to protect some other person, or to avoid a consequence unrelated to the offence. Now, here the accused gave evidence that he knew he was over the limit and so he would be in trouble because he had hit somebody when he was over the limit. If you think that was the reason he drove home, and said nothing until he went to the police station, after hearing from Julie Meredith, rather than because he knew he had deliberately killed someone, then you can't use the fact that he fled the scene as consciousness of guilt on the charge of murder. If that's what you think, you should put this concept of consciousness of guilt to one side and just focus on the other matters."

ORDERS

1. For the reasons I have given, I propose the following orders: 1. Grant leave to appeal in respect of Ground 1; 2. Allow the appeal; 3. Quash the appellant's conviction of murder; 4. Direct the entry of an acquittal on the charge of murder, being Count 1 in the Indictment; and 5. Remit the proceedings for the re-trial of the appellant on Count 2 in the Indictment.
2. HOEBEN CJ AT CL: I have had the advantage of reading in draft the reasons of Macfarlan JA and Fagan J. As a result, I have had the benefit of their Honours' comprehensive analysis of the evidence at trial and possible inferences to be drawn from it.
3. As a result, like Fagan J, I am unable to agree that the jury's verdict of guilty of murder "is unreasonable or cannot be supported having regard to the evidence". I find that it was well open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.
4. As has been made clear in their Honours' judgments, the Crown case was entirely circumstantial. Of necessity, there was a lack of precision in the evidence, particularly the expert evidence relating to the essential intermediate fact to be established by the Crown, i.e. that the collision occurred off the roadway on a grassed strip to the left of the vehicle being driven by the appellant.
5. Of necessity, evidence of that kind requires careful scrutiny by the jury, not only as to its context but how that evidence was given. In that regard, as Fagan J has explained, the jury was in a far better position to assess the evidence than is this Court.
6. This is particularly so in relation to the evidence given by the appellant. That is not to say that the rejection of the appellant's evidence should necessarily have resulted in a guilty verdict. On the contrary, the Crown at all times carried the burden of establishing the elements of the offence and the essential intermediate fact beyond reasonable doubt. Nevertheless, the evidence of the appellant was important in that it constituted the primary source of the hypothesis consistent with innocence upon which the appellant's defence was based. As indicated, the jury were in a far better position than this Court to assess that evidence.
7. Although there was a clear difference of opinion in the expert evidence, the respective challenges to that evidence at trial did not reveal one set of theories to be clearly established and the competing set unsustainable. There was considerable scope for the jury to accept some evidence and reject other by their own modes of reasoning so as to be ultimately satisfied beyond reasonable doubt as to the appellant's guilt.

Ground 1 - whether the verdict of guilty was unreasonable

1. The appellant did not dispute that his van had struck Nicholas McEvoy and killed him. As Macfarlan JA has noted (at [65]-[66]) the trial was conducted on the basis that the second element of the charge of murder (namely, causation of death by a willed act of the appellant) depended upon whether the Crown had proved beyond reasonable doubt that the collision occurred off the roadway on a grassed strip to the left. The roadway was approximately 7.7 m wide in the vicinity of the collision, measured from a concrete kerb at the left to a median strip at the right. It was divided into two lanes being the eastbound lanes of Richmond Road, the left or kerb-side lane being 3.3 m wide and the second lane being 3.4 m wide.
2. The road was of concrete construction. At the left-hand edge, from about 300 mm out from the kerb, the concrete surface was inclined downwards towards the left at an angle slightly greater than the camber of the driving surface. This formed a gutter against the up-stand of the kerb. The kerb was about 100 mm high and its horizontal top surface was about 100 mm wide. Adjacent to the roadway on its left hand or north side there was a level grassed strip about 5 m wide (measured from the kerb). At the left hand margin of this strip, furthest from the road, the grassed surface dropped away down a slight embankment.
3. In the way the trial was run, not only the second element of the charge of murder but also the third, namely, intent to kill or to cause grievous bodily harm, depended upon whether the Crown had proved beyond reasonable doubt that the collision occurred off the roadway and on the grassed strip. That is, those elements turned upon whether the collision occurred as a result of the passenger-side wheels of the appellant's van having mounted the kerb so that the vehicle straddled the kerb and proceeded with two wheels on the level grassed strip, the front left of the vehicle then striking Mr McEvoy whilst he was walking on that strip.
4. The Crown did not call any eyewitness to the collision. It presented a wholly circumstantial case that the collision had occurred off the roadway as described above. The circumstantial case included evidence of the following: 1. motive, being the appellant's alleged animosity towards Mr McEvoy as a result of an encounter in the nearby Plumpton Hotel within about 45 minutes before the collision, and the opportunity for the appellant to have recognised and targeted him as he walked on the grassed strip; 2. the location, nature and extent of injuries to the deceased and of damage to the front left of the appellant's van; 3. the post-collision position of Mr McEvoy's body, collision debris and surface marks; 4. the degree of intoxication of the deceased, bearing upon the possibility of him having staggered onto the roadway; 5. the degree of intoxication of the appellant, bearing upon his capacity to have manoeuvred his van partly onto the kerb and grassed strip and then back fully onto the roadway and 6. results of palynology examination of the appellant's van.

The location of the collision

1. Along the relevant section of Richmond Road the two eastbound lanes are separated from the westbound lanes by a median strip. When travelling from west to east the Plumpton Hotel is on the right, that is, on the south side of Richmond Road, set well back from the road behind a nature strip and an open-air car park. The main pedestrian entrance from the car park into the hotel is through a pair of high steel gates on the north side of the building, facing the car park and across it towards Richmond Road. Dublin Street runs north-south and joins Richmond Road just to the west of the Plumpton Hotel car park. Vehicle entry to the car park is off Dublin Street rather than directly off Richmond Road.
2. From the perspective of travel from west to east on Richmond Road, Symonds Road joins to the left, or north, approximately 50 m past the Plumpton Hotel and its car park. Continuing in an easterly direction the next intersection with Richmond Road is Quakers Hill Parkway, on the left. This intersecting road crosses Richmond Road at right angles. To the south of the intersection it is known as Knox Road. The collision between the appellant's van and the deceased occurred a little over halfway from the Symonds Road intersection to the Quakers Hill Parkway intersection. The distance walked by Mr McEvoy from the Plumpton Hotel across the car park, across Richmond Road to its north side and then east along the footpath beside the eastbound lanes to the point of collision was approximately 700 m, measured by the scale on an aerial photograph (Exhibit B).
3. Mr McEvoy was struck by the appellant's van shortly after midnight, within the first minutes of Friday, 21 February 2014. His body was first seen lying on the grassed strip by Ms Davies and then by Ms Layoun, two passing motorists. Ms Davies left her workplace, which was about 10 minutes' drive away, at approximately 12:10 am and saw the deceased's legs as she passed. Ms Layoun drove past shortly before 12:27 am, at which time she made a triple zero emergency call upon seeing the body.

(1) Motive

1. According to unchallenged evidence given by his brother, Mr McEvoy left the brother's home in Dean Park, a suburb on the north side of Richmond Road across from the Plumpton Hotel, about 10:30 pm on Thursday 20 February 2014. He was wearing black running shoes, shorts and a T-shirt. He was carrying five or six cans of Carlton Dry beer in a black plastic bag.
2. The appellant was at the Plumpton Hotel from about 2:00 pm on 20 February 2014 until about midnight. Mr Wetere was on duty there as the security guard from 6:00 pm. He knew the appellant, whom he had seen at the hotel approximately twice per week over the previous two years. The appellant played pool with various people during the evening. At about 11:00 pm Mr Wetere saw Mr McEvoy enter through the hotel's main front doors, which were just inside the front steel gates from the car park. At that time the appellant was playing pool with a Mr Henshaw, known to all as "Chicken". Mr Wetere had seen Mr McEvoy at the hotel on prior occasions.
3. According to Mr Wetere the deceased commenced to speak with Mr Henshaw whilst the latter was playing pool with the appellant and to encourage Mr Henshaw loudly and congratulate him on his shots. On Mr Henshaw's evidence this went on through three games played by him against the appellant. Mr McEvoy became louder over time, cheering Mr Henshaw and "high-fiving" him. Mr Wetere told Mr McEvoy to settle down but he did not. The appellant told Mr McEvoy that he should let the appellant and Mr Henshaw "play their own game". Mr Henshaw heard the appellant tell Mr McEvoy to "piss off". Mr McEvoy stood back and watched for a time after this but when Mr Henshaw won a game Mr McEvoy "jumped up and screamed, congratulated him" and "got really excited". He acted in a loud manner and "hugged or lifted" Mr Henshaw.
4. Mr Wetere observed that "it looked like [the appellant] did not like what he saw". He stood in a corner and watched Mr McEvoy "yelling and carrying on". Mr Wetere concluded from Mr McEvoy's behaviour that he was "intoxicated or under the influence of something" and therefore told him "you've got to go". The hotel's closed circuit television ("CCTV") recorded Mr Wetere walking forcefully towards Mr McEvoy to direct him away from the pool area and towards the front doors. Mr Wetere is a large man. Mr McEvoy walked backwards away from him without any sign of resistance. He backed away out into the car park near the front gates. Mr Wetere said this was "around 11:30-ish".

(2) Injuries to the deceased, damage to the appellant's van

1. Dr Brouwer carried out a post-mortem examination of the body of the deceased on 24 February 2014. Her principal findings may be summarised as follows: 1. There were spinal fractures with dislocation at the joint between the base of the skull and the top of the spinal column and at vertebrae C2, C4, T5 and T6. 2. Mr McEvoy had suffered diffuse axonal injury to his brain. 3. All but two of Mr McEvoy's left ribs were fractured at the back of the chest, some with dislocation. On the right side only the sixth rib was fractured, at the back. 4. The left lung was bruised at the back, adjacent to the spine. 5. The back part of the diaphragm was lacerated at the right. 6. There was bleeding around the kidneys, situated toward the back and just below the rib cage. 7. There were external injuries to the back of Mr McEvoy's head in the left and right occipital region and to the right rear of his neck, these injuries exhibiting scratch marks consistent with impact against a shattered windscreen. 8. There were skin abrasions at multiple sites over Mr McEvoy's body. 9. Soil or mud staining was located mostly to the right side of the body, particularly the right hip, right forearm (front and back) and in the vicinity of the right knee, right ankle and right heel. 10. No injuries were observed which would have been caused by contact of Mr McEvoy with the road surface.
2. Dr Brouwer had reviewed photographs of the damage to the front left of the appellant's van. She expressed this opinion: There was substantial damage to the front of the vehicle towards the passenger side, and also the [external] rear-view mirror on the left side was absent. From the autopsy examination and the anatomical distribution of the injuries, it appears that the impact was to the back of the body. There was substantial damage to the front of the vehicle, indicating that the majority of those injuries were most likely caused by the impact with the vehicle, with the back of the body impacting with the front of the vehicle.
3. Dr Brouwer said that such an impact was capable of causing the fractures and dislocations of the cervical spine which she had found. She expressed the opinion that when struck Mr McEvoy "would have been facing away from the vehicle". In cross-examination she agreed that the injuries could have been caused by the vehicle striking Mr McEvoy when travelling at 50 or 60 km/h. She accepted that such a collision is "not a static process" and that there would be movement of the body after the impact. Because of the number of rib fractures on the left "it appears that the impact was more focused on the left side of the back of the body" and that that might have occurred because the left-hand side external mirror may have struck the left side of Mr McEvoy. Dr Brouwer accepted that Mr McEvoy might have been turned slightly to the left or right at impact.

(3) Position of Mr McEvoy's body, collision debris and surface marks

1. When Mr McEvoy's body was first observed by passing motorists (Ms Davies, Ms Layoun, Mr Hill, Mr Taylor) it was lying at the base of the left-hand support pole of a road sign. The sign was erected on the grassed strip and was fixed at an angle of about 70º to the road alignment. It was marked "Nurragingy Reserve". The right-hand support pole was less than half a metre back from the kerb and the left-hand pole was 2 m back. Investigators identified blood on the grass in the vicinity of where the deceased's head lay, slightly over 2 m from the kerb and about 1 m north-east of the left-hand support pole. Witnesses described Mr McEvoy's body as lying with his head away from the road and his feet closer, within about 1 m of the kerb. He was lying on his back. There was some variance in the witnesses' recollections as to whether his body was to any extent in contact with, or leaning against, the left-hand support pole of the sign. It was open to the jury to treat this minor controversy as not significant to their ultimate inference about where the collision took place.
2. There was a road sign notifying motorists of police operations at a point 37.5 m to the west of the Nurragingy Reserve sign. This also had two support poles, the nearest to the road being set 2 m back from the kerb as measured by the scale on the police survey diagram (Exhibit D).
3. When Mr McEvoy's body was found he was still holding a black plastic bag which was empty. Leading Senior Constable Foster examined the scene from 1:30 am on 21 February 2014 and assisted another officer to make the survey which identified the following items and their relative positions (the distances given are as scaled off Exhibit D): 1. 18.6 m west of Mr McEvoy's body and 1 m back from the kerb (marker C): one full can of Carlton Dry beer and one half-full can, lying together. 2. 16.5 m west of the body and 1.2 m back from the kerb (marker E): the main body of the left-hand side external rear-vision mirror of the van. This included an electric motor for adjustment of the mirror angle and the reflective mirror surface, still intact. 3. 15 m west of the body and about 100 mm back from the kerb (marker F): a piece of the clear plastic headlight cover from the left-hand side of the van. 4. 13.5 m west of the body and about 500 mm back from the kerb (marker G): a broken piece of black plastic from the left-hand side external rear-vision mirror. 5. About 11 m west of the body and 700 mm back from the kerb (marker H): a furrow about 800 mm long and 300 mm wide where the grass had been erased from the surface exposing bare dirt. 6. 5 m west of the body and 100 mm back from the kerb (marker L): a broken piece of black plastic from the left-hand external rear-vision mirror of the van.

Dispute over location of mirror and inference from heavy items

1. With respect to the rear-vision mirror there was an issue at trial whether it had come to rest after the collision at the position described at [193(2)] or whether it had been moved there. The Crown's crash investigation expert, Mr George, gave evidence that soil was adhering to the anchorage bolt of the mirror by which it had been attached to the vehicle. He said there were scuff marks on the forward side of the plastic casing consistent with contact with Mr McEvoy's clothing upon impact with his upper body but no coarse road pavement abrasions. LSC Foster also said the mirror did not exhibit any marks to indicate that it had fallen on the abrasive surface of the road and bounced over the kerb onto the grass. She said if it fell on the road and bounced she would expect to see scratches on the plastic casing, as well as broken glass.
2. Mr George and LSC Foster said these features made it likely the mirror had fallen on the grass strip where police found it. On the other hand Mr Booth, an accident reconstruction expert called by the appellant, was of the opinion the road surface was "relatively smooth, and all the large aggregate (which is river stone) was all exposed and very slippery and shiny". He said this surface would not necessarily have marked the black plastic casing of the mirror if it fell onto the roadway. It does not appear Mr Booth was questioned as to how this evidence was to be reconciled with his opinion that "coarse and irregular" grains of sand were embedded in the concrete surface, with portions "projecting out of it" which would have "sliced through" the surface of the soles of Mr McEvoy's shoes.
3. Ms Layoun gave evidence that when she first stopped at the scene prior to the ambulance officers and police attending there was a rear-vision mirror in the lane furthest from the left-hand kerb. She said this was "a side mirror of a car and it was white". She was not "100% sure" that the mirror was white. Upon being shown a photo of the van's black side mirror on the grass strip and asked whether this was what she saw. Ms Layoun gave this answer: It could possibly be, I just can't remember the colour exactly. I was pregnant and it was dark and a bit of a baby brain, but, yes, that looks like what I would have seen, yep.
4. Ms Layoun was cross-examined on a statement she made to police in March 2014. She agreed that she there said the mirror "had black on one of the sides". She had made her observations without getting out of her car, which she had parked adjacent to Mr McEvoy's body. Ms Layoun was at the scene for a total of about 40 minutes. During this time she had moved her car forward a few metres and then got out of it when asked to do so by police. Ms Layoun said she did not see anyone move anything at the scene in the time she was there.

Body trajectory

1. Given the body mass and height of Mr McEvoy and the part of the vehicle by which he was struck, Mr George gave the opinion that he "would have been projected forward and to the left" and that there would have been imparted a "roll motion about the vertical, so the twisting of the body". He said it would have been "a very complex post-crash motion of the victim". He said if the collision point was approximately where the beer cans were found, 18.6 m back from the centre of mass of the body, that "throw distance" would be consistent with an impact speed of 45-61 km/h. As there would have been a component of projection of the body to the left, he considered the body might not have been initially accelerated forward to the same speed as the vehicle. Consequently, a vehicle speed of "60-70 would be generally consistent with that throw distance" of 18.6 m.
2. Mr George's opinion was that the actual point of impact would have been "a relatively short distance" to the west of the location where the cans were found (that is, a little more than 18.6 m west of the body). It was put to him in cross-examination that a vehicle speed of 65-70 km/h at impact would be consistent with the body being thrown through the air 7.5-9.0 m before some part of the body hit the ground. Mr George agreed with this. Both experts agreed that the ground furrow was caused by some part of Mr McEvoy's body striking the ground. The distance from the collision point propounded by Mr George (slightly to the west of the beer cans) to the ground furrow was over 7.6 m.
3. Mr Booth agreed that Mr McEvoy "would have been rotated to some degree to the left" as a result of the collision and would have been propelled forward and to the left. He stated a range of 7.5-8.8 m for the distance the body would have travelled through the air before striking the ground, assuming a vehicle speed of 65-70 km/h. Mr Booth said that after landing within that range Mr McEvoy's body would "continue to roll". He identified on one of the photographs markings on the grass from the furrow to the position in which Mr McEvoy's body was found. He described this as a "track running through … where the person's tumbled through the grass". He said that at the furrow Mr McEvoy's body "hit the ground and skidded or hit it and bounced" and that from there the body may have slid or "tumbled along ground".
4. Mr Booth produced a diagram on which he had projected straight lines from each of two alternative positions of the resting position of the body back to the west. One of these alternatives assumed the centre of mass of the body would have been at the pole against which Mr McEvoy came to rest. The other assumed a position slightly further back from the road and on a line towards the position where bleeding from Mr McEvoy's head had marked the ground. Mr Booth drew each of his straight lines back through the furrow to distances of, alternatively, 7.5 m and 8.8 m to the west of the furrow. He advanced the proposition that as the western end of each line (whether extended 7.5 m or 8.8 m) was on the roadway therefore the point of collision would have been on the roadway.

Tyre marks and difficulty of manoeuvre

1. Both Mr George and LSC Foster were of the opinion that the left-hand wheels of the appellant's van had mounted the grassed strip, travelled along it to a point of collision and then back over the kerb onto the roadway, without leaving tyre marks on the grass. Mr George elaborated that tyre marks would not necessarily be left, even assuming the ground was damp, and their absence could be consistent with the wheels rolling over the ground without sudden steering or braking. Mr George accepted that at least the front left wheel of the vehicle had to have come back over the kerb onto the roadway by the point referred to at [194(1)] above, where a piece of black plastic from the external side mirror was found in the gutter. He did not accept that this required the vehicle to undertake a sharp manoeuvre which would necessarily have left tyre marks on the grass.
2. Mr Booth on the other hand expressed the view there was "no likelihood of [the collision] occurring on the verge if there is (sic) no tyre marks". In evaluating these competing opinions the jury were entitled to bring their own experience and common sense to bear. They had photographs showing the grass cover, which appears to have been fairly short, but not mown, and uneven in growth and condition. The jury had a view of the scene. It was open to them to accept the opinions of Mr George and LSC Foster and to reject Mr Booth's opinion. The leaving of tyre marks on a grassed surface of this nature is a matter upon which the experience and expertise of the crash investigators could assist the jury but is not a subject so arcane and divorced from common experience that the jury necessarily had to treat Mr Booth's opinion as giving rise to a reasonable doubt. That remains so notwithstanding that Mr George said he "would have liked to have seen tyre marks". This was nothing more than an imprecise and vernacular way of stating that tyre marks on the grass would have been further confirmation of his conclusion. It did not detract from his evidence that the van's left wheels could have travelled over the grassed strip without leaving marks.
3. As part of their assessment of this evidence the jury were entitled to form their own view about how difficult or radical the driving manoeuvre would have to have been for the collision to occur on the grass, as postulated by the Crown. The post of the second sign, located to the west of the point of collision, was a little over 26 m back from the point at which Mr George agreed the vehicle's front left must have returned over the kerb and onto the roadway. Given that the nearest post of that sign was approximately 2 m back from kerb, the jury may well have thought it did not impose any constraint upon the location at which the left wheels of the appellant's vehicle may have mounted the grassed strip. It would also have been open to them to consider that the whole manoeuvre could have been done without sharp braking or turning. This was a matter within the scope of their judgment.

Marks on the soles of Mr McEvoy's shoes and the clump of grass

1. Conflicting opinions were expressed by Mr George and Mr Booth respectively concerning whether the soles of Mr McEvoy's shoes indicated that they had been scraped along the grassed surface at the time of the collision, or along the roadway. Likewise there were conflicting opinions about whether a small clump of grass and dirt wedged under the van's left windshield wiper had been flicked up by Mr McEvoy's shoe as the van collided with him on the grass, or whether such a mechanism was highly improbable so that the clump of grass should be disregarded. I do not consider it necessary to review in detail the differing expert opinions about these matters. The evidence of Mr Booth regarding the shoes was not of such undeniable force that this Court could conclude the jury were bound to treat it as creating a reasonable doubt about the impact having occurred on the grass. If Mr Booth's evidence with respect to the clump of grass had been fully accepted it would have done no more than remove a single circumstance which the jury were invited by the Crown to take into account. Mr Booth's evidence on this matter was defensive with respect to that circumstance but not positively exculpatory with respect to all the other circumstances.

Status of the expert evidence on crash reconstruction

1. So far as the location of the collision could be inferred from the position of the body, the location of debris, physical features of the road (and surrounds) and ground markings, the jury's use of this evidence did not simply turn upon a choice between expert opinions. LSC Foster, Mr George and Mr Booth all expressed opinions as to the point of collision based upon their own inferences from primary data and laws of physics, Mr Booth concluding that the point of collision was on the road. The experts also expressed opinions on a number of subsidiary matters within their field and on these there was a large measure of agreement between them. The subsidiary points included the initial throw distance of the body through the air, the direction of that movement, complexity of the motion of the body after impact and the overall throw distance. It was open to the jury to undertake their own process of reasoning from the primary data and from the subsidiary opinions. This is not a case where the jury's verdict must have critically depended upon their acceptance of one of two opposed expert opinions, such that if this Court should determine that the opinion was inherently flawed then the verdict could not reasonably be supported.
2. Nor is the jury's verdict rendered unreasonable because Mr George expressed his opinion that the collision occurred on the grassed verge only "on the balance of probability" and as being "most likely". The jury had to decide whether the collision was off the roadway according to the criminal standard of proof, the Crown bearing the onus. For a verdict of guilty to be reasonably open to them it was not necessary that the Crown adduce opinion evidence, formed to an expert's satisfaction beyond reasonable doubt, that the collision took place on the grass. The jury were entitled and required to take into account all circumstances, including whatever they may have found regarding the appellant's animosity toward Mr McEvoy, his identification of the pedestrian as Mr McEvoy, the degree of Mr McEvoy's intoxication and the likelihood or otherwise of him having stepped onto the road. The road crash investigators, of course, were not asked to factor any of those circumstances into their reasoning. They were not matters within the investigators' expertise and in any event it was for the jury, not the experts, to decide the ultimate issue on the basis of all the circumstances.

(4) Intoxication of the deceased

1. Mr McEvoy's brother gave evidence that the two of them had carried out some physical work at the brother's home in Dean Park between 4:30 pm and about 9:30 pm on 20 February 2014. Both of them had drunk several beers whilst working. The brother said he could tell when Mr McEvoy was drunk and agreed that Mr McEvoy would sometimes talk loudly when affected by alcohol. He said that he did not show signs of intoxication when he left at about 10:30 pm. The effect of his evidence was that Mr McEvoy was not exhibiting unsteadiness or loss of control over his movements at that time.
2. Mr Wetere observed Mr McEvoy's loud behaviour between about 11:00 pm and midnight and on that basis thought he was intoxicated by alcohol or something else but did not describe any physical loss of control. Nor did any of the other witnesses who had seen Mr McEvoy in this period at the Plumpton Hotel: Messrs Henshaw, Rigney and Loveridge.
3. A post-mortem blood sample was analysed to reveal a blood-alcohol content of 0.167 g of alcohol per 100 mL of blood. Dr Perl, a forensic pharmacologist called by the Crown, said in cross-examination that at that level the person would be expected to exhibit sway and unsteadiness but for "highly tolerant people there may not be any visible signs of sway and unsteadiness so they may not obviously deviate where they're walking". She said it was likely that at that reading a person would be unsteady on his or her feet if walking in the dark on an uneven surface and would be likely to stumble. Dr Perl was then shown CCTV footage of Mr McEvoy from within the Plumpton Hotel from 11:00 pm and said that she could see no obvious sign of intoxication in his movements. These included Mr Wetere shepherding him out of the hotel with Mr McEvoy walking backwards, which Dr Perl said "is fairly difficult if you are drunk". She assessed that "he managed quite well".
4. Dr Perl was shown a segment of Exhibit L depicting the appellant attempting to punch Mr McEvoy and noted that "he's very quick to react and put his arms up to protect himself, so he's not what I would describe as 'well-affected'". She also viewed the footage of him walking across the car park and then, when he reached the nature strip adjacent to Richmond Road, shadowboxing and leaping about as he continued on his way. Dr Perl could not see in any of this any signs of significant intoxication and assessed that he must have had a high tolerance to alcohol and been a regular, very experienced drinker. She said that on an uneven surface it would be: highly unlikely that he would trip or fall. He may have a little bit of unsteadiness, depending on the surface that he's walking on, but nothing that would cause him any great difficulty.

(5) Intoxication of the appellant

1. After colliding with Mr McEvoy the appellant drove to his home at Freemans Reach more than 20 km away. He was not spoken to by police until late on 21 February 2014. Consequently no breath or blood analysis was made to establish his level of intoxication at the time of the collision. Instead the Crown counted the number of beers purchased by the appellant over the course of the afternoon and evening at the Plumpton Hotel, as shown on CCTV of the bar. Dr Perl was asked to calculate the appellant's likely blood-alcohol content at 12:08 am, the approximate time of the collision, on the assumption that all of these drinks were consumed over the period of the CCTV recording from when the appellant arrived at the hotel about 2:30 pm. She took into account the appellant's height and weight as well as the fact that he did not appear to have consumed any food.
2. The result was Dr Perl's estimate of blood-alcohol content between 0.257 and 0.3 g of alcohol per 100 ml of blood. The estimate would be 0.285 if the appellant's rate of elimination was at the median. It would be as low as 0.229 if his elimination rate was at the highest possible rate for the human body. The CCTV show that the appellant at times purchased two beers at once but he did not appear to be in a shout with any other drinkers. Dr Perl's calculations were therefore made on the basis that he consumed all the 21 beers he had purchased. The appellant said that on those occasions one of the two beers purchased would have been for someone else. Dr Perl said that if the appellant had consumed only one of the two beers on those occasions the total consumed would be 16 and his blood-alcohol content would have been above 0.15. More likely than not it would have been above 0.2.
3. Dr Perl observed the movements of the appellant on the CCTV at the front of the hotel shortly before midnight. As earlier mentioned the appellant is seen first trying to punch Mr McEvoy and then walking about. The footage also shows him standing up on a concrete parking bay barrier, apparently about 100 mm wide and raised to about that height above the surrounding ground level. He seemed to balance on this without difficulty.
4. Dr Perl said her observations of the appellant on the CCTV footage and the fact that he was able to drive more than 20 km home were matters indicative of a very high level of tolerance. However she said that driving makes particularly high-level demands because it involves requirements for decision-making which are unique to each occasion. She said this cannot be practised and therefore high tolerance to alcohol does not exempt a person from gross adverse effect upon driving skills at above 0.2.

(6) Palynology evidence

1. It is not necessary to extend these reasons by reviewing the palynology evidence. Weaknesses in it identified by Macfarlan JA may well have been perceived by the jury and they may have considered that it made no contribution to the Crown's circumstantial case. But nor was it exculpatory. Whilst possibly not adding anything, in its nature this evidence was not capable of rebutting or cutting down other parts of the Crown's circumstantial evidence. Even total rejection of the palynology evidence would not give rise to a reasonable doubt about the rest of the circumstantial evidence or about the ultimate inference. For the purposes of determining ground 1 the palynology evidence can therefore be disregarded. The reasonableness or otherwise of the verdict may properly be examined by reference to the Crown's other circumstantial material.

Conclusion on ground 1

1. As stated in M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63 (Mason CJ, Deane, Dawson and Toohey JJ), in determining an unreasonable verdict ground: the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. The test has been repeatedly affirmed in those terms, for example in Jones v The Queen (1997) 191 CLR 439 at 452; [1997] HCA 56; Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21 at [49]; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 and The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66].
3. In M v The Queen it was said that in answering the question formulated as quoted above the appellate court "must not disregard or discount" two important considerations and, on the contrary, "the court must pay full regard to those considerations" (at 493). The two matters are: [1] that the jury is the body entrusted with the primary responsibility of determining guilt or innocence [and] [2] that the jury has the benefit of having seen and heard the witnesses.
4. The first of these two considerations was expanded upon in MFA v The Queen at [48]-[49] (McHugh, Gummow and Kirby JJ) in these terms (citations omitted): Conventionally, the jury has been described as the constitutional tribunal for deciding contested facts. In respect of the specified cases, the jury occupies an undoubted constitutional status in the federal offences to which s 80 of the Australian Constitution applies. A jury is taken to be a kind of microcosm of the community. A "verdict of [a] jury", particularly in serious criminal cases, is accepted, symbolically, as attracting to decisions concerning the liberty and reputation of accused persons a special authority and legitimacy and hence finality. In that context, and against the background of the tradition of the jury trial over the centuries, the setting aside of a jury's verdict is, on any view, a serious step. Hence, it is a step that assigns to the words "unreasonable" or "[un]supported" in s 6(1) of the [Criminal Appeal Act] a strictness of meaning that, in isolation or in other contexts, those words might not enjoy.
5. The "special authority and legitimacy" of jury verdicts does not exist only in the eyes of lawyers. Community acceptance of the outcome of serious criminal charges is attained through the verdict being that of a jury, a decision of fellow citizens. In a subsequent passage in MFA v The Queen (at [51]) their Honours referred to: the undesirability of effectively replacing jury trial of serious criminal charges with trial before a court of criminal appeal comprising (normally) three judges who ordinarily see no witnesses, hear no evidence and decide the reasonableness and supportability of the verdict by reference to selected passages of evidence to which attention is drawn by the parties.

Ground 2

1. I agree with Macfarlan JA that the appellant's conduct after the collision with Mr McEvoy was intractably neutral in the sense that there was no rational basis upon which the jury could ascribe his flight to a sense of guilt with respect to the elements of murder rather than to guilt of having caused grievous bodily harm or death by dangerous driving. I respectfully consider the learned trial judge ought not to have acceded to the Crown's request that consciousness of guilt be left to the jury, as was done in the terms recorded by Macfarlan JA at [129].
2. It is regrettable that this direction was sought by the Crown, over the objection of the appellant. The case illustrates a common experience in criminal trials that from the Crown's point of view submissions on lies and consciousness of guilt often add very little to otherwise strong cases and carry more risk than value. Here, the Crown in address placed some emphasis on consciousness of guilt as supporting the murder charge. On careful consideration these submissions rested upon no more than a bare assertion that the sense of guilt which might be inferred from the appellant's flight must be attributed to murder rather than to the lesser, but still very serious, alternative count on the indictment.
3. The following passage from the Crown address illustrates this: It's the Crown case that the accused, by driving off, hiding the vehicle and doing the things that he did, was not only attempting to hide the fact that he was intoxicated at the time, but was seeking to hide from the authorities his involvement in the collision with this man because he knew full well, having deliberately struck the man, that he was going to be facing serious legal consequences if he was found out.
4. Submissions by the Crown on consciousness of guilt were interspersed with arguments that the appellant must have known who he hit and that he must have timed his run along Richmond Road in order to collide with Mr McEvoy. The address went very close to complete circularity, that is, arguing that because the appellant deliberately ran Mr McEvoy down, therefore his flight from the scene arose from guilt about that. Deliberate running down was what the Crown was endeavouring to prove. It could not then also be deployed as a premise of the argument as to what the appellant's sense of guilt related to.
5. By directing the jury that it was for them to decide whether the appellant's flight should be attributed to a sense of guilt of murder or, only, to a recognition that he had caused a motor accident while intoxicated, his Honour left open a decision that the jury had no basis for making. The Crown has submitted on the appeal that if the Court should reach this conclusion the proviso to s 6(1) of the Criminal Appeal Act ought to be applied.

Orders

1. The orders I would propose are: 1. Leave to appeal is granted. 2. Ground 1 of the appeal is rejected. 3. The appeal is allowed on ground 2 only. 4. Quash the appellant's conviction of murder. 5. Order that there be a retrial of the appellant on the indictment.

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