R v Cohen JIRGENS

District Court of NSW|2013-05-15

Indictment and Procedural History 1On 22 April 2013, the accused, Cohen Jirgens, was arraigned on an indictment containing the following counts: 1. On 12 September 2009 at Sutherland in the State of New South Wales did drive a motor vehicle, namely, a utility registered number AOE-12K and attached trailer registration number P678790, in a manner dangerous to other persons, whereby the vehicle was involved in an impact as a result of which the death of Mark Cooper was occasioned. 2. On 12 September 2009 at Sutherland in the State of New South Wales did drive a motor vehicle, namely, a utility registered number AOE-12K and attached trailer registration number P678790, in a manner dangerous to other persons, whereby the vehicle was involved in an impact as a result of which grievous bodily harm was occasioned to Sian McIntosh. 2This matter proceeds by way of an ex officio indictment following discharge of the accused in the Local Court on 31 August 2011.

Application 3The accused has sought that the trial be conducted on a judge alone basis, pursuant to section 132 of the Criminal Procedure Act 1986, by way of a notice of motion filed 19 October 2012. The basis for the application is that: (a) the evidence is of a technical nature and may be misunderstood by a jury; (b) a judge alone trial would be quicker and more flexible than a jury trial; and (c) in the event of a conviction, a jury verdict would be opaque as far as the basis for the assessment of the cause of the accident and collision and the accused's culpability. For example, whether his driving was dangerous and his conduct was culpable by virtue of the way he loaded and drove the vehicle, together with issues of load weight, load distribution, tyre pressure, the condition of the brakes etc. 4The Crown opposes the application for a judge alone trial and submits that the factual issues to be determined require the application of objective community standards as to: (a) the dangerousness involved in the driving in this instance; and (b) the determination of the accused's belief at the relevant time and, in particular, whether his belief was: (i) an honest belief; and (ii) a reasonable belief in all the circumstances.

Facts 5A brief summary of the facts is that the accused was driving South in his utility with an attached trailer on the Princes Highway, between President Avenue, Sutherland and the Royal National Park turnoff, on 12 September 2009 at about midday. The trailer was heavily laden with timber. The photographs tendered (exhibits 9 and 10) show the way the timber was loaded on the trailer. At the extremities the timber was about seven metres in length and extended over the length of the trailer. There was a red or orange flag attached to the longest end of the timber. The timber was secured on the rim of the trailer on horizontal timber struts or dunnage. 6The accused was driving a long distance, namely, from his home in Bomaderry, near Nowra in the Shoalhaven, to Sydney, a distance of about 130 kilometres. He was to collect and load the timber in his father's trailer and then make the return trip. The return trip with the loaded timber would have involved travelling on the Princes Highway through suburban Sydney and then the towns on the route between Sydney and Bombaderry. Clearly that trip would have involved travelling on a busy highway through changes of gradient and curved road sections as well as a variety of traffic conditions. 7A witness, Mr Coroneos, observed the accused's motor vehicle and, in particular, the trailer, start to wobble as it was being driven, immediately prior to the collision. The wobble either commenced or was accentuated as it came down in the southbound lanes of the Princes Highway and around a curve sloping away from the median strip. The motion of the vehicle became a side-to-side swing, the arc of the swing of the trailer increasing. The utility with the attached trailer hit and mounted the wide median strip and crossed into the northbound side of the highway. The swing of the vehicle and trailer meant that the vehicle and trailer became horizontal to the opposite laneway on the Princes Highway. The car then collided with the deceased's small sedan car which was travelling in the opposite northbound direction. The photographs of the car driven by the deceased showed that the ceiling to the driver's seat was effectively demolished. 8The driver of the car, Mr Mark Cooper, was killed in the collision (count 1) and his partner, Ms Sian McIntosh, was seriously injured (count 2). There is no issue as to those matters. Their four year old child was seated in the rear of the vehicle. He was secured in a car seat and was relatively unscathed (physically) by the accident. 9The statement of another witness, Mr Brett Rolley, described the impact of the utility as, "seeming to jack-knife right into the front of" Mr Cooper's vehicle. Evidence will be given as to the extent of skid marks on the road immediately prior to the collision. 10In terms of other matters that might be relevant to the cause of the accident, the weather and the road were dry at the time. The road was properly constructed.

Crown case 11The Crown evidence will focus on the manner of driving, what was being driven and the steps taken by the accused. It will be to the effect that: (i) the combination of the vehicle and trailer in the circumstances, with the weight load, meant that the accused was driving the utility with the attached trailer when they were overweight (in combination) by 1450 kilograms; (ii) the distribution of the weight of the trailer contributed to the instability of the trailer prior to the impact; (iii) there was an uneven distribution of air in the tyres of the trailer; (iv) there were defective brakes on the trailer. The Crown case will be that, had the trailer brakes been in working order, it may have had the effect of correcting the sway; further, defective trailer brakes meant that speed could not be reduced as much as it would have been had the brakes been in working order; (v) while there was no suggestion of excessive speed in terms of the breach of any speed limits, the Crown case is that it was dangerous to be driving at the speed being driven by the accused in these circumstances; (vi) it was unreasonable for the accused to have driven with the overloaded trailer in all the circumstances, given the distances he proposed.

Expert witnesses 12I have been provided with relevant expert reports on the matter, together with a certificate setting out that the accused has obtained legal advice as to the effect of this application. 13There will be three expert witnesses: (i) Mr Eliopoulos, a police vehicle examiner and mechanic, who examined the trailer and utility at the police holding yard three days after the collision. He took various photographs of the trailer, its load of timber and tyres, as well as notes of the tyre pressure of each tyre. Mr Eliopoulos' statement was tendered on the voire dire. Paragraph 20 sets out his opinion that the brakes to the trailer were not working at the time of the collision; further, that they had not worked for a period of at least two weeks prior to the collision. He also says at paragraph 22 that the trailer was overweight by 200 kilograms and the vehicle was over its towing capacity by 400 kilograms. At paragraph 24 he sets out his opinion that the vehicle may have become unstable due to the weight of the trailer and the way the timber was distributed on the trailer. The lack of braking may have adversely affected the driver's ability to slow the vehicle and trailer down. (ii) Mr Grant Johnston, mechanical engineer. His evidence will be particularly as to asymmetric loading, vehicle sway and the impact on the movement of the utility, the trailer and its load. Mr Johnston's report dated 27 May 2012 (voir dire exhibit 1) gives the opinion that: (a) The asymmetrical loading of the trailer and in particular its significant magnitude was a precipitator of the loss of control event; and (b) The mechanical defect in the braking system also contributed to the loss of control as the natural safety mechanism which should have been working to reduce the potential for trailer sway and loss of control was not present. Further, that the mechanical defect in the braking system reduced the stopping capacity of the combination vehicle such that once loss of control occurred, any braking which occurred was less efficient and 'washed off' less speed compared to the circumstances if the brakes were operating correctly. (iii) Mr Alan Joy, the defence engineering expert, has provided a statement in reply to those matters. Mr Joy's statement also sets out that the tow bar fitted to the accused's utility was designed and rated to tow a trailer with 1200 kilograms laden mass, a towing capacity of 750 kilograms for a trailer not equipped with brakes and 1800 kilograms for a trailer equipped with brakes. Mr Joy's opinion was that the exceeding of the towbar's rated load capacity was not the cause of the accident. 14There are a series of civilian witnesses who saw the accused's vehicle and trailer. There are preliminary objections taken as to the expressions of opinion: (i) Ms Sian McIntosh (the victim in the second count) who said that the accused was coming "way to fast" down the hill; (ii) Mr Coroneos (a passer-by) whose opinion was that there was "too much wood on the trailer"; and (iii) Mr Kurtz (an observer of the accused's vehicle) as to the way the trailer was loaded at the traffic lights immediately prior to the accident and what drew his attention to the trailer, namely, that there had been "dangerous loading" of the trailer. It is submitted by counsel for the accused that his recollection was one of reconstruction, rather than accurate or contemporaneous observation. 15I will hear counsel on these objections but express the preliminary view that the matters advanced should be based on observations of factual matters, distances, loads, lengths and ties of the timber, movements of the vehicles etc.

Law 16Section 132 of the Criminal Procedure Act 1986 relevantly provides: "... (4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so. (5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness." 17The determination of these matters is not conducted on a strictly adversarial basis. The issue of judge alone trials has recently been the subject of interpretation by the NSW Court of Criminal Appeal in R v Belghar [2012] NSWCCA 86.

Consideration 18Here, the trial will involve the determination and application of community standards as to: (a) what constitutes dangerous driving, specifically, driving a trailer said to be dangerously loaded; (b) what steps are reasonable in terms of the driving, the loading of trailers and the securing of loads in trailers; and (c) whether driving with this loaded trailer in all the circumstances and particularly with allegedly defective brakes was dangerous. Those matters will require an assessment of the competing expert evidence and the assessment of those matters and principles as to the facts as found. Clearly the honesty of the accused's belief that what he did was appropriate and reasonable is likely to be to a significant issue. 19The Crown is entitled to rely on all the factors relevant to the driving as to whether or not it was dangerous. Balanced against that is the related assessment of whether the steps taken by the accused to secure the load were reasonable. In that regard the Defence relies on the fact that the timber load remained tied and secured to the trailer, notwithstanding the force of the collision, to support the contention that the steps taken were appropriate.

Prejudice 20It is implicit in the defence application that facts of the matter, in particular, the death - and the circumstances - of the deceased driver and the photographs to be tendered of the crushed vehicle, will have a prejudicial effect on a jury. That is the nature of the evidence. Both the jury panel and the jury will be reminded of the need to be objective and considered in their assessment of the evidence and not to be swayed by emotive reactions or considerations of sympathy. 21In terms of other prejudicial matters, the parties have agreed on facts relating to the death and indicia of grievous bodily harm, which will obviate the need for photographs of the deceased or Ms McIntosh, medical reports and any consequential prejudice.

Complexity and length of trial 22There are no complex propositions of law which would not be capable of being explained by proper and appropriate directions. I do not accept on the basis of the material submitted thus far that the trial will involve "complex engineering, scientific or medical issues", see Belghar at [112]. There will not be complex evidence such as is likely to be overlooked, forgotten by or not capable of being followed by a jury. If that is a danger, the transcript of the evidence given can be given to the jury. 23This will be a relatively short trial. Even if the trial is to be conducted before a jury, the estimates are in the order of ten days. The accused is not legally aided. There are significant penalties and maximum periods of imprisonment established by Parliament for these offences.

Assessment of standards 24The legislation specifically contemplates issues of "reasonableness" and "dangerousness" as being concepts on which the application of objective community standards through a jury trial may enliven a judge's discretion on such an application. There are clear and far-reaching policy issues why this should be the case. 25There is a legitimate and significant public interest in these proceedings and the determination of them by a jury, as the community's representatives. Any trial involving a death of or injury to an innocent party - as both Mr Cooper and Ms McIntosh clearly were - will attract community attention and scrutiny. There have already been committal proceedings, following which the accused was discharged. This trial now proceeds by way of an ex officio indictment. A decision by a judge alone carries a risk of perceptions of decisions being made without a wider input on the assessment and application of community standards. 26The fact that the jury's reasons may be opaque for sentencing purposes does not render the matter any different from any count where there are descriptive or qualitative words such as "dangerous", "grievous", "culpable" or "negligent". If relevant, the determination of the accused's culpability will be determined by the sentencing judge in accordance with normal principles and the evidence presented on any such sentencing proceedings.

Conclusion 27I am not persuaded on the material before me and the submissions made that it is in the interests of justice for a departure from the normal method of a jury trial. To the contrary, I consider that, in this case, the interests of justice are best served by having the issues of reasonableness and dangerousness determined by a jury.

Order (1)I dismiss the application for a judge alone trial. (2)The trial will proceed forthwith before a jury.

Note After a ten day trial, the accused was acquitted by a jury on both counts.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 June 2013

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