R v Meakin

The Plumpton Hotel

1. The Toyota van which Mr Meakin was driving was used for his work. In the morning of Thursday, 20 February 2014, he drove from his home at Freemans Reach to Wollongong for work purposes. He commenced the return journey in the early afternoon and drove to the Plumpton Hotel, arriving at about 2.15pm. He was a regular patron of the hotel, and was known to the staff. The evidence in the Crown case about the events at the hotel on this occasion comprises the testimony of members of the staff and other patrons of the hotel, together with a volume of CCTV footage.
2. At the front of the hotel, nearest to the car park, is a beer garden. Behind it is the main bar. Mr Meakin remained at the hotel until the beer garden closed at midnight. CCTV footage in the main bar records that between about 2.20pm and 11.30pm he purchased schooners of full strength beer on 16 occasions. On five of those occasions he purchased two schooners, making a total of 21 schooners. There is no CCTV footage recording him consuming beers after he left the bar area, either alone or with anyone else. In his evidence, he said that on the occasions he bought two beers, he was "probably buying a beer for somebody else". Ms Cathy McNamara, the hotel manager, gave evidence that he would often buy beers for other people, and he was not someone who would "back up for drinks straight away". Mr Meakin's evidence was that he spent most of the time in the beer garden, where there were pool tables. He was "just chatting and playing pool".
3. Between about 4.30pm and 10.30pm that day, Mr McEvoy had been at the home of his brother, Barry McEvoy, at Dean Park. He was helping his brother with some landscaping in the front yard, digging out an area to construct a retaining wall. He had been wearing thongs but his brother lent him a pair of shoes. Over the period they were drinking Carlton Dry cans of beer. When he left, he was wearing his brother's shoes and carrying some cans of Carlton Dry in a plastic bag. He walked to the Plumpton Hotel.
4. CCTV footage records Mr McEvoy arriving at the beer garden a little after 11pm. He watched while Mr Meakin played pool with other patrons. Between 11.35pm and 11.55pm, Mr Meakin played three games of pool with Mr Matthew Henshaw, winning the first game but losing the other two. Mr McEvoy was an occasional patron of the hotel, and knew Mr Henshaw.
5. During the three games, Mr McEvoy behaved boisterously, clearly favouring Mr Henshaw in the contest. There were various descriptions of his conduct by witnesses. Mr Henshaw said that Mr McEvoy was "cheering him on", and on a few occasions "cuddled" him. During the second game he leant across the pool table at one stage. During the third game he kept coming over to the table, and Mr Meakin told him to "piss off" and "go away" in what Mr Henshaw described as a "harsh" tone. At the conclusion of the third game, he ran to Mr Henshaw and gave him a bear hug.
6. Mr Kerry Rigney described Mr McEvoy as being "in celebration mode". On occasions when Mr Henshaw sank a ball, he would "run around waving his arms in the air … he was like 'whoo whoo' … things like that … supporting his mate". Mr Rigney also saw him hug Mr Henshaw. He said that Mr Meakin "wasn't happy" about this conduct. He recalled him yelling out "shut it" or "shut up", in a tone of voice which he described as "strict" or "quite harsh". He said that he also heard him making "various little comments under his breath", things like "smart arse" or "wanker". I have reservations about this aspect of his evidence. He had not mentioned it in a statement he made to police the following day; nor did he do so in his evidence at the previous trial. In any event, it seems to me that little turns on it.
7. A security guard at the hotel, Mr Brendon Wetere, who apparently knew Mr McEvoy, described him as "very loud … over excited". He was encouraging Mr Henshaw, congratulating and "high fiving" him every time he won a shot. He heard Mr Meakin tell him to let Mr Henshaw "play his own game", and he described his tone of voice as "stern". He also described Mr McEvoy hugging Mr Henshaw after the third game.
8. Mr Wetere described Mr McEvoy as "not his normal self". He appeared to be affected by something "whether it be alcohol or something else". He seemed quite "unreasonable", and Mr Wetere asked him to leave. He was reluctant to do so, so Mr Wetere started pushing him out. He walked out backwards as he was escorted into the car park. Mr Wetere heard Mr Meakin behind him say. "Go home" in a tone which he described as "fairly stern".
9. What then occurred in the car park is the subject of the evidence of witnesses and was captured on CCTV. There was an exchange of words between Mr Meakin and Mr McEvoy. Another patron of the hotel, Mr Kevin Loveridge, described Mr Meakin as "just arguing" with Mr McEvoy. Mr Rigney described the two of them as "calling each other names", both speaking aggressively and angrily.
10. At that point, Mr Meakin swung a punch at Mr McEvoy which did not connect. Mr McEvoy did not retaliate but raised his arms defensively, with one of his fists clenched. Mr Wetere gave evidence that he appeared "ready to carry on if need be". He moved in to separate the two of them. He pushed Mr Meakin towards the hotel and Mr McEvoy further into the car park. The punch and its immediate aftermath are depicted in the CCTV footage.
11. Mr Wetere's evidence was that before Mr Meakin threw the punch, Mr McEvoy had been speaking to him, protesting that he did not want to leave. Immediately before the punch, he said, he heard Mr Meakin say, "Keep walking". However, in cross-examination, he agreed that there was "a bit of a tit for tat exchange of words" between Mr Meakin and Mr McEvoy before Mr Meakin had "taken a swing at him".
12. After Mr Wetere intervened at that point, Mr Meakin is seen on the CCTV footage to walk towards the hotel and out of view. Shortly after, he is seen to emerge and walk in the car park in the direction in which Mr McEvoy was being escorted by Mr Wetere. At that time Mr Rigney comes into view and appears to be beckoning towards Mr Meakin. Mr Rigney's evidence was that he was encouraging Mr Meakin to "cool it, leave it alone", saying "It's not worth it".
13. Mr Wetere gave evidence that when he escorted Mr McEvoy to the middle of the car park, Mr McEvoy was "yelling things" to Mr Meakin. Eventually, Mr McEvoy did walk towards the eastern edge of the car park and left the hotel area. Mr Wetere came back towards the hotel, at which time everything appeared to him to be "pretty calm".
14. Mr Loveridge also said that things had "pretty much quietened down". Mr Meakin seemed like "his normal self", and Mr McEvoy seemed "fairly calm" after the exchange between him and Mr Meakin. Mr Loveridge got into a car with another patron to leave the area. Asked whether at that stage Mr Meakin appeared to be "stewing on anything", he said that there had earlier been a "bit of tension there" but by that stage it had "all settled down".
15. Mr Meakin unlocked his van with a remote control several times as he watched Mr McEvoy walk across the car park towards the exit and partially followed him doing so, and for some minutes thereafter. After Mr Wetere came back towards the hotel, Mr Meakin is seen on the CCTV footage to remain in the car park for a further time, moving around in the area. Eventually, he is seen to get into his van and Mr Wetere is seen to approach him. Mr Wetere's evidence was that he was sitting in the driver's seat on his mobile phone. Mr Wetere said, "You're going home". He characterised that as telling him as well as asking him to do so. Mr Meakin said, "Thank you, mate". He then reversed the van and drove towards the Dublin Street exit.
16. In his evidence Mr Meakin described Mr McEvoy as being "loud and rude" while he was playing pool with Mr Henshaw. He said that it was possible that he had told Mr McEvoy to "shut up" or something to that effect. He acknowledged having thrown a punch at him in the car park. He said that he could not remember why he had done so but assumed that Mr McEvoy "must have said something to me for me to react that way". He described his encounter with Mr McEvoy generally as "just a small altercation that didn't mean much to me at the time".
17. His evidence was that between 11pm and midnight he "felt fine", but knew that he was "drunk or getting there". He said that on previous occasions when he had had too much to drink, he would go the nearby home of friends of his, Julie Meredith and her partner, Ray Lebnan. On this occasion he rang Julie from the hotel but she did not answer. He asked the general manager of the hotel, Ms Belinda Lowndes, if there was a room available in the motel, but she said that there was only one vacant room and it was infested by cockroaches.
18. Ms Lowndes gave evidence, in which she said that there was such a conversation at about 11.25pm. Ms Meredith also gave evidence. She confirmed that Mr Meakin would sometimes stay overnight if he had had too much to drink, and that on this particular night there had been a call from him which she had not answered because she was asleep.
19. Both Ms McNamara and Ms Lowndes were working at the hotel that night, and had seen Mr Meakin from time to time from around 9pm. Neither of them observed him to be intoxicated. Ms McNamara said that she had never seen him being what she would describe as drunk, and Ms Lowndes said that he was a drinker who could handle alcohol well. To Mr Wetere, he did not seem affected by alcohol. However, Mr Henshaw said that he seemed "a little bit drunk". On the other hand, Mr Loveridge said that when he saw him in the car park he did not appear to be drunk.
20. At no stage in the CCTV footage from the beer garden and the car park does Mr Meakin display any signs of intoxication. He is seen to be walking normally without any loss of balance and, indeed, is depicted at one stage standing on a narrow bollard like structure in the car park. Mr McEvoy's coordination also appears to be intact. He was able to walk out backwards when being escorted from the beer garden by Mr Wetere, and in the car park the footage depicts him walking normally and at one stage "shadow sparring".
21. That said, there is evidence that Mr McEvoy displayed signs of intoxication a little later. He left the hotel grounds onto Richmond Road, and at some stage must have crossed the road to the northern side. Two witnesses, Mr George Jarman and Ms Melinda Boucher, were travelling in a vehicle east on Richmond Road at around this time. After passing the Plumpton Hotel they saw a man, who is accepted to have been Mr McEvoy, on the path on the northern side in the vicinity of the Western Sydney Parklands.
22. He was about a metre in from the roadway. It seemed to them that he was trying to put a jumper on. He appeared to be hitch hiking. Ms Boucher thought that he stuck his thumb out, apparently for that purpose. Mr Jarman described him as "staggering". Ms Boucher said that while he was putting the jumper on he "like stumbled". Mr Jarman was of the opinion that he was drunk, and Ms Boucher thought that he was "a little bit drunk". Ms Boucher contacted Crime Stoppers the following morning after being told about a fatal collision involving a pedestrian in that area.
23. It is common ground that Mr McEvoy did not have a jumper. The Crown prosecutor suggested, plausibly, that what they had seen was his shadow sparring while holding the plastic bag containing the beer cans.

The fatal incident

1. The CCTV footage records Mr McEvoy leaving the hotel grounds at 3 minutes to midnight. The footage also records Mr Meakin's departure. He drove his van out of the car park into Dublin Street at 1 minute past midnight. At 5 minutes past midnight he turned right into Richmond Road, against a no right turn sign, and proceeded east in the left (kerbside) lane. His home at Freemans Reach was to the west of the hotel, and to get there he would have turned left into Richmond Road. The grass verge on which Mr McEvoy was walking immediately prior to the collision was about 500 metres to the east of the hotel, immediately to the east of a driveway leading into the Western Sydney Parklands on the northern side of Richmond Road.
2. The accused's evidence was that as he left the hotel he felt hungry and wanted something to eat before the 20 kilometres drive home. He added that he thought that eating something would reduce his level of intoxication (which, of course, is a common misconception). He decided to drive to a McDonalds restaurant at Woodcroft, which he had attended frequently and which was to the right off Richmond Road about 2.5 kilometres to the east of the hotel. On the corner of Dublin Street and Richmond Road there was a 7-Eleven store, which served food, including pies, but he said that they had been "sort of playing up on me a little bit" and, in any event, he liked McDonalds.
3. He said that at the time he set off from the hotel he had no idea where Mr McEvoy had gone, and had no intention of following him. Asked in cross-examination why he remained in Dublin Street for some 4 minutes before he turned onto Richmond Road, he said that he did not remember doing that. He denied that he had been sitting there watching Mr McEvoy or trying to work out what he was going to do in relation to him.
4. As to the collision, his evidence was that he collided with a person who had stepped or stumbled onto the roadway about 3 or 4 metres ahead of him. It happened quickly and he did not have time to react. He said that his reflexes "obviously weren't quick enough to move". He did not know whether the person was male or female, and he certainly did not recognise the person as Mr McEvoy. Not knowing whether the person was alive, he panicked because he knew he was over the blood alcohol limit. He drove to the next intersection and made his way home. There he parked the van behind his house to keep it out of sight because it had incurred significant damage.
5. He said that later in the morning he heard that someone had been struck on Richmond Road and had died at the scene. He was "devastated" and "gutted" that he didn't stop. He heard that the person was a male, but was still unaware at that stage that it was Mr McEvoy. He had a conversation with his friend, Ms Meredith, that day. She suggested that he come to her home and prepare a statement about the matter, adding that she knew a solicitor in Penrith.
6. Ms Meredith gave evidence about this. She said that in the afternoon at her home she assisted Mr Meakin to prepare a statement, which she typed on her computer. Later in the afternoon they saw the solicitor. Mr Meakin gave evidence that the solicitor recast the statement "to be a little bit more professional", and it is that document which is in evidence (Exhibit 29).
7. Relevantly, the statement records that he was driving in the area at about 65 to 70 kmh. He first saw the person who was struck about 15 metres ahead, facing the direction in which he was travelling. It continues: "I continued to drive and when I was approximately 2 metres from this person, the person stepped to their right onto the roadway. In stepping onto the roadway, the person hit the front nearside of my van." The statement adds that after he hit this person, he did not stop and drove home. He signed the statement and it was witnessed by Ms Meredith.
8. He took it to Penrith Police Station and, as he put it in evidence, "handed myself in". However, he was not detained. He thought that it was not until the next day that he found out the identity of the person who had been struck.
9. According to Ms Meredith, when Mr Meakin first arrived at her home that afternoon, he said that he "didn't know what he had hit". The Crown prosecutor argued that this was a deliberate lie, as he well knew that he had run over a person. In his evidence Mr Meakin denied having said this or, at least, had no recollection of it. Ms Meredith did not make a statement to the police until 22 May 2014, some three months later. In her evidence, she added that he had also said that he did not know what he hit in their phone call before he went to her home. That does not appear in her statement. On balance, although I do not doubt Ms Meredith's honesty, I question the reliability of her evidence about this. Particularly is this so given that that very afternoon Mr Meakin made a statement which made it clear that he was aware that the van had collided with a person.
10. A number of witnesses who were travelling in the area shortly after the incident saw Mr McEvoy lying on the grass verge, and one of them, Rhonda Layoun, rang the 000 emergency line. The others were Melissa Davies, Darrin Hill and his nephew, Ian Taylor, who was travelling with him. Mr McEvoy was lying next to a sign to the Nurragingy Reserve. The witnesses gave varying accounts as to whether he was lying parallel to the kerb or perpendicular to it. However, it is clear from the evidence of an ambulance officer who attended the scene, Rhys Jones, that he was parallel to the kerb, his head towards the east and his legs towards the west. He was holding the plastic bag which had contained the beer cans. He was missing his right shoe, which was lying on the roadway.
11. As a result of the collision the passenger's side rear vision mirror was detached from the van and fell to the ground. As will be seen, where it fell is a matter of contention. Mr Taylor, who was brought to court from custody, was an unwilling witness who claimed to have no recollection of what he saw. The Crown prosecutor was granted leave to cross-examine him under s 38 of the Evidence Act 1995 (NSW). It was led from him that in a statement to police, which he had made on 23 February 2014, he said that he saw the mirror lying on the grass. Ms Layoun's evidence was that she saw the mirror lying on the roadway in the centre lane on the northern side, near Mr McEvoy's shoe, which was in the kerbside lane. Police who attended the scene found the mirror on the grass. Ms Layoun was shown a photograph of it lying in that position, but maintained her stance that she had seen it on the roadway.
12. Ms Layoun denied having moved it from that position or having seen anyone else do so. Ms Davies said that she saw the mirror and debris in the vicinity, but did not recall whether the mirror was on the roadway. Mr Hill made no reference to the mirror. However, both he and Ms Davies said that they also did not move any item in the vicinity and did not see anyone else do so. Mr Jones did not recall seeing the mirror. He said that, apart from moving the plastic bag out of the way to tend to Mr McEvoy, he and a colleague who had accompanied him did not touch any object in the vicinity.
13. Mr McEvoy was in cardiac arrest and attempts to resuscitate him were unsuccessful. He was conveyed to Westmead Hospital, where he was pronounced deceased.

Post-mortem

1. A post-mortem examination of Mr McEvoy's body was undertaken by Dr Issabella Brouwer, forensic pathologist, on 24 February 2014. Dr Brouwer observed a large number of injuries, both external and internal. It is not necessary to recite all of them. Relevantly, there were a number of fractures to cervical vertebrae, including the first vertebra which articulates with the skull base. That injury, Dr Brouwer said, is usually immediately fatal. She saw evidence of bleeding associated with the membrane around the cervical spine, indicating injury in that area. Externally there were a number of injuries to the back of the head and the neck. There were multiple rib fractures posteriorly: almost all the ribs on the left side and one on the right side. Internally there were also injuries to the lungs, the kidneys and the brain. Dr Brouwer said that there were several injuries which were potentially fatal and described the cause of death as multiple injuries.
2. The doctor's evidence was that most of the fatal internal injuries were noted on the back of the body. There were extensive areas of bruising on the back of the body, but no significant bruising to the front. She said that the injuries suggested that most of the impact was to the back of the head and neck, then towards the upper back area and then the left flank area. Given the extent of the rib fractures on the left back of the body, she saw the impact as "more concentrated to the left side".
3. Dr Brouwer inspected Mr Meakin's van and saw the injuries to Mr McEvoy as consistent with the damage to that vehicle, to which I shall refer later.

Investigation - scene/van

1. The police investigation of this matter was carried out by a number of officers, under the command of Detective Senior Constable Kerrie Perry.
2. The grass verge is about 5 metres wide. At its northern end is an embankment which falls away to lower ground in the Western Sydney Parklands. A number of relevant items were seen on the grass verge, and their positions were recorded by the use of the yellow markers with letters of the alphabet familiar in crime scene investigation. Measurements of those positions were made by Leading Senior Constable Kristy Foster of the Crash Investigation Unit, those measurements being taken from the point at which the eastern edge of the driveway leading into the parklands met the verge.
3. Four of them (at markers A, B, D and N) are not relevant for present purposes. Of the others, most were on the grass verge close to the gutter, but a few were on the roadway in the gutter or close to it. In setting out their distance from the eastern end of the driveway I shall use round figures.
4. It appears that upon impact the plastic bag which Mr McEvoy was carrying burst and the four beer cans fell to the ground. At marker C, 24 metres east of the driveway, were two of those cans. Of the other two, one was on the embankment and the other at the bottom of the embankment. There were no markers indicating their precise position. At marker E, 27 metres east of the driveway, was the damaged side mirror. This is where police who first arrived at the scene saw it.
5. At marker F, 28 metres east of the driveway, was a small piece of clear plastic headlight. At markers G, I, J, L and M, between 29 and 38 metres east of the driveway, were pieces of black plastic which had broken off the mirror. The pieces at markers G and L were on the grass verge near the gutter, while the other pieces were on the roadway in the gutter. At marker K, 37 metres east of the driveway and also in the gutter, was an orange indicator bulb.
6. At marker H, 32 metres east of the driveway, was an area of exposed soil, where the vegetation appeared to have been recently disturbed, which was referred to in the evidence as the "furrow". At marker O, 43 metres from the driveway and close to the sign pointing to the Nurragingy Reserve, was a further piece of black plastic from the mirror. At marker P, 44 metres east of the driveway and also close to the sign, was a pool of blood where Mr McEvoy's head had been. Finally, at marker Q, in the kerbside lane on the roadway and 49 metres from the driveway, was Mr McEvoy's right shoe.
7. Mr Meakin's van was inspected by police where he had parked it at his home at Freemans Reach. Photographs of the van, and particularly the damage to it, are in evidence (Exhibit 8). Apart from the missing passenger's side mirror, there was damage to the front of the vehicle on the passenger's side from the bumper bar up to the roofline. The front passenger side's headlight was smashed and dislodged from its housing. There was shattering to the windscreen, in what Senior Constable Foster described as a "spider web pattern", radiating from the passenger's side to a little beyond the mid point. Dr Brouwer considered that damage to be consistent with the injuries observed to the back of Mr McEvoy's head and neck, and the injuries to his body to be consistent with impact from the front of the van.
8. On the edge of the bonnet towards the passenger's side, very close to the windscreen wiper, was a clump of grass and soil (seen clearly in the photos Exhibit 53).
9. As I have said, it is the Crown case that the van collided with Mr McEvoy on the grass verge. This was said to have been done by Mr Meakin straddling the verge with the passenger's side wheels on the grass and the driver's side wheels on the roadway. In support of this proposition the Crown relies upon the evidence of two experts: Mr Mark George, qualified in collision analysis and reconstruction, and Dr Lynette Milne, qualified in the unfamiliar area of palynology. Palynology is the study of the pollen and spores of plants, and Dr Milne's evidence was directed to soil samples taken from parts of the van. Experts in both disciplines were called in the defence case: Mr Trevor Booth on collision analysis, and Dr Dallas Mildenhall on palynology. Two botanists were also called in the Crown case whose evidence is uncontroversial: Dr Phillip Kodela and Ms Barbara Wiecek.
10. The collision analysis and palynology evidence is of some complexity, but I shall try to deal with it succinctly.

Collision analysis

1. In determining the nature of the impact of the van upon Mr McEvoy, Mr George had regard to the damage to the van, Dr Brouwer's post-mortem examination and Mr McEvoy's height and weight. Put shortly, he concluded that Mr McEvoy was struck from behind, over about 70% of his body width. The back of his head impacted with the upper area of the windscreen close to the passenger's side pillar. Because of the offset nature of the impact he would have been deflected forward and to the left. The passenger's side mirror would have been dislodged through impact with his upper left arm and shoulder.
2. The bumper bar would have pushed his knees forward and his feet (or the foot which he had his weight on at the time) would have been pushed onto the ground on their toes before being propelled forward. Mr George postulated that the toe of one of his shoes had dug into the ground and, as he was propelled forward, flicked up the clump of grass and soil which landed on the bonnet. In cross-examination, he acknowledged that the same thing could have occurred in an impact on the roadway if Mr McEvoy had picked up the clump of grass and soil on one of his shoes on the grass verge and it adhered to that shoe at the time he stepped onto the road. There had been rain in the general area on the Thursday morning, and at the time of the collision the grass verge was damp and the soil was somewhat muddy.
3. It was the view of Mr George, and Mr Booth, that the furrow was caused by the impact of Mr McEvoy's body upon the ground. It was angled towards his rest position. Both experts were agreed that it was not caused by the wheels of the vehicle.
4. The mirror is in evidence (Exhibit 30). On the outer casing are what Mr George described as "very fine scuff marks". He considered that these were caused by Mr McEvoy's clothing. He did not see coarse abrasions, which he would have expected if it had impacted with the concrete roadway. Moreover, he saw what he described as "still damp mud" wedged in the anchorage assembly of the mirror. He concluded that on impact the mirror had fallen onto the grass, consistent with the position in which it was seen by police. However, he agreed in cross-examination that that position was not necessarily inconsistent with the collision having occurred on the roadway because the mirror, having been dislodged, could have bounced back onto the van and then onto the grass verge.
5. Mr George examined the shoes which Mr McEvoy had been wearing at the time. These were runners, with ridges on the sole. He noted that their heels were relatively clean, but that he saw "caked dirt on the front ball areas of the soles". On the other hand, there was a "notable absence of any coarse pavement abrasions" on both soles. There are photographs of the right shoe, the one found on the roadway (in Exhibit 6), and of the left shoe (in Exhibit 7). Of course, Mr McEvoy had been walking on a muddy area. Mr George was of the view, however, that dirt towards the front of the soles of the shoes would have been "cleaned" by contact with the roadway and impact on the roadway would have left damage by way of coarse abrasions, particularly to the area of the toes.
6. The effect of Mr George's evidence is that the point of impact is a matter of inference, there being no direct evidence of it. If it happened on the grass, and if the clump of dirt on the bonnet was related to it, the point of impact could be determined if a divot had been found indicating where that "flicker of dirt" had come from. Nothing of that kind was observed at the scene. If it was on the road, he said, coarse abrasions on at least one of the shoes and a correlating scuff mark on the pavement would provide direct evidence. Again, nothing of the kind was seen. He concluded that, on the balance of probabilities, the impact occurred on the grass verge because of an accumulation of evidence.
7. He placed significance on the two beer cans at marker C. He said that research has shown that in collisions involving pedestrians, loose items carried by the pedestrian often fall very close to where the impact occurred. He postulated that the impact here was "a relatively short distance", perhaps "some metres" to the west of those cans. However, he acknowledged that that conclusion was complicated by the fact that the cans were contained in a plastic bag, which must have burst. In addition, the other two cans were located a significant distance away, on and under the embankment. He agreed in cross-examination that the bag may not have burst immediately upon impact.
8. He relied upon the clump of grass and soil on the edge of the bonnet of the van, and the position of the side mirror at marker E. He thought it likely that the small pieces of plastic had "fractured" from the mirror at the time of impact, before it had fallen to the ground. Those pieces had "aerodynamic qualities" whereby they could be carried some distance before they fell to the ground at markers G, I, J, L and M. The piece of plastic at marker O, next to the Nurragingy Reserve sign, could have been carried there with Mr McEvoy's body.
9. He also noted the position of the piece of plastic from the headlight at marker F, and the indicator bulb at marker K. He saw the distribution of all this debris as consistent with the impact having occurred on the grass verge. Both he and Mr Booth accepted that Mr McEvoy's body had come to rest at marker P, and Mr George illustrated a likely trajectory of the body from the vicinity of the cans at marker C to marker P in a diagram, Exhibit 55.
10. It was the distribution of the debris, together with the clump of grass and soil and what he saw as the absence of any sign of the mirror or Mr McEvoy's shoes having come into contact with the road, which led Mr George to his conclusion. He noted, however, that there were no tyre marks on the grass verge. There is no evidence of tyre marks being seen and, on his careful examination of the images with which he was supplied, he could not see any. He said that it was possible that there were tyre marks which were not discernible, but acknowledged that the absence of them diminished the strength of his opinion. It is to be borne in mind that the grass verge was damp. There is evidence that the unladen van weighed 1,835 kilograms, and it appears from a police photograph (Exhibit O) that it was laden with Mr Meakin's work equipment at the time.
11. Mr George's view was that Mr Meakin had driven the van onto the grass verge from the "layback" of the driveway leading into the Western Sydney Parklands. In cross-examination he agreed that the van would have to have been driven off the verge at a point before the furrow, certainly by marker I. He agreed that there was a risk during the manoeuvre that the inside of the driver's side tyres would rub up against the gutter, but he saw no abrasive marks on the tyres to suggest that that had occurred. He agreed that, certainly, the process of turning the vehicle back onto the road across the gutter was likely to leave marks of that kind on the tyres but, again, he saw no such marks.
12. In addition, Mr George noted that the furrow was close to the gutter and that, given that Mr McEvoy was propelled to the left upon impact, the wheels of the van would have to have been even closer. Accordingly, the tyres would have been very close to the top of the gutter and, quite possibly, on it. Yet there were no marks on the tyres consistent with that having occurred.
13. Mr Booth was engaged to prepare a report in 2016, two years after the event. He agreed with Mr George in a number of respects, some of which have been noted. I shall focus on the areas of disagreement.
14. He did not see the cans at marker C to be of relevance in determining the point of impact, saying that there was not enough information to form a conclusion about the stage at which the bag might have burst and the circumstances in which the four beer cans landed in the positions in which they were found.
15. He agreed that it was the impact of Mr McEvoy's body with the side mirror which had dislodged it, but was of the opinion that that had occurred on the road. For this he relied upon the evidence of Ms Layoun, to which I have referred, that she had seen it in the centre lane near Mr McEvoy's right shoe at marker Q. He agreed that the fine scuff marks, or "burnish" marks, on the mirror were made at the time of impact. He said that the mirror was projected forwards, hit the roadway and bounced along to its place of rest. It was the impact of the mirror upon the roadway which caused the pieces of plastic to break off. He noted the mud wedged in the anchorage assembly of the mirror, but said that that could be the result of its having been picked up and thrown onto the grass verge. As to the lack of coarse abrasions, he said that the mirror casing was made of PMMA plastic which is sufficiently tough and flexible for only very small marks, or no marks at all, to be left on it.
16. He saw the position of the piece of plastic from the headlights and the indicator bulb as consistent with the impact having occurred on the road. As to the piece of plastic at marker O, close to Mr McEvoy's body, he considered that it could have "broken off the mirror and flicked in there".
17. He examined Mr McEvoy's right shoe and did not see the build up of dirt described by Mr George. This may not be surprising, given that two years had elapsed since the incident. However, he also subjected it to microscopic examination, which is depicted in one of the photographs in Exhibit X. He saw fine grooves across the sole of the shoe, consistent with having been caused by sand granules in the roadway. They appeared to cross the shoe at an angle of about 30 degrees, suggesting that Mr McEvoy had stepped off the kerb at an angle, so as not to be "square on".
18. Mr Booth concluded that after the impact Mr McEvoy was propelled to the left onto the grass verge without striking the roadway, his body traversing the area of the furrow until it came to rest. Both experts were of the view that Mr McEvoy was initially airborne before striking the ground, but Mr Booth addressed this issue in more detail. In Exhibit W he postulated Mr McEvoy's parabolic trajectory, allowing for some variation in his centre of mass and having regard to Mr Meakin's estimate in his statement, Exhibit 29, that the van was travelling at 65 to 70 kilometres per hour. The allowance for variation of his centre of mass recognised that it could be affected by the position of his limbs. Mr Booth proceeded on the assumption that at the time he was struck he was upright (walking on the grass verge).
19. In Exhibit V he set out a likely trajectory of Mr McEvoy, commencing on the roadway west of marker C and proceeding through the furrow towards marker P. This trajectory was based upon his view that the collision between the van and Mr McEvoy was "inelastic". By that he meant a collision in which there is no change of forward momentum, so that the speed of the van was "imparted to Mr McEvoy". As an example of an inelastic collision, he referred to a cricket bat hitting a ball, where in the process the bat does not slow down. He demonstrated an elastic collision by forcing two paper caps against each other, crushing both of them, similar to a head-on collision between two vehicles. He had regard to the damage to the van, but noted that the "part of the van just below the bonnet line and where the headlight lamp is, is reasonably rigid and hasn't deformed a great deal". He considered that the impact would have slowed the van by an infinitesimal amount only.
20. Mr George challenged this analysis when he was taken to it in his evidence. He described it as a "point mass trajectory" analysis, which assumes an inelastic impact, an approach which he considered inappropriate in this case. In his view, the speed of the van was reduced by the impact, Mr McEvoy's body had been deflected to the left and probably slightly upwards, and these factors meant that his body was accelerated to a speed less than the impact speed of the vehicle. He added that such an analysis required "an assessment of the vertical fall component of a body's centre of mass between the point of lift off and the point of touch down relative to the ground". It would require knowledge of the body's "specific orientation at those two points of contact", information which was not available. He also challenged Mr Booth's assumption as to the range of Mr McEvoy's centre of mass. He said that in an impact such as this, "a pedestrian's motion will be highly irregular with no way to predict the body's attitude when it contacts the ground following impact".
21. The effect of this approach, Mr George said, was that the "horizontal distance component was over-reported" for the purpose of Mr Booth's argument that the area of impact was on the roadway. He said that the combination of the use of a "full point mass vertical fall distance from standing to beyond laying on the ground" and the assumption of a "rigid and inelastic impact" would "over represent" the horizontal distance of travel.
22. Mr Booth also had regard to the lack of observable tyre marks on the grass verge, and was firm in his opinion that the van had struck Mr McEvoy on the roadway.

Palynology

1. For present purposes it is sufficient to say, as I have already noted, that palynology is the study of the pollen and spores of plants. A brief description of the science is to be found in the Powerpoint presentation, Exhibit 14, admitted in the evidence of Dr Lynette Milne. Pollen and spores are the male sex organs of plants, pollen being those of flowering plants and spores being those of non-flowering plants, such as ferns. Pollens can be dispersed by wind or by insects. Pollen from wind pollinated plants is common in soil in the region where they are growing, whereas insect dispersed pollens are rare in the soil near their parent plants or where their parent plants had previously grown. Wind pollinated plants produce a large amount of pollen, but insect pollinated plants not as much.
2. Dr Mildenhall added that wind borne pollens will normally land within a few metres of the particular plant but can travel great distances. In relation to insect borne pollens, insects such as bees can carry quite a lot of pollen from the plant but may drop some as they travel. In addition, the pollen of insect pollinated plants may be dispersed by the wind as the flower dies.
3. Dr Mildenhall also explained the phenomenon of "pollen rain". This is pollen that is in the atmosphere which, depending on weather conditions, slowly falls. When it rains, individual drops of rain will pick up pollen grains and drop them. Pollen also falls from the atmosphere during dry conditions, particularly in the middle of the day, because plants tend to disperse their pollen in the early morning and late evening and between those times the pollen slowly falls out of the atmosphere on still days. On windy days it is picked up and carried.
4. On the night of 21 February 2014, Senior Constable Gearside collected a soil sample from the furrow on the grass verge. She did so by scooping soil into a plastic jar. She sought to obtain the upper layer of soil, going down perhaps 3 or 4 centimetres. She also obtained a soil sample from underneath the van at Freemans Reach, using the same method.
5. In addition, she obtained swabs from the tread areas of both rear tyres and from the mud flaps. She did this by placing drops of sterilised water onto the tip of a sterilised cotton swab, then placing the swab tip into the tyre tread, rotating it several times to gather the soil which was within the tread. Finally, on 7 April 2014, she collected a sample of soil from the undercarriage of the vehicle by scraping it with a sterilised scalpel into a plastic jar.
6. All this material was the subject of testing by Dr Milne to determine the pollen and spore types, which she referred to as the "pollen assemblage", in each of the samples. She described the testing process in some detail, but her methodology was not in dispute.
7. She set out in tables the pollen and spore types she found in each sample and the percentage of each of them in that sample. It is convenient to refer to these pollen and spore types, albeit loosely, as species. Dealing firstly with the samples taken from the two sites, there were a number of species common to both of them, although in different percentages. However, there were four species in the sample from the Richmond Road site which were absent from the Freemans Reach sample. These were gonocarpus, santalum-type, spore X (cyathea - a type of fern) and a species which she identified as Tricolporate T. (Santalum-type pollen was found at Freemans Reach but it was very old and degraded.) Dr Milne described these as the key species. Each of them was found to be present in small quantities in one or more of the samples taken from the van.
8. In September 2014, at the request of Dr Milne, Senior Constable Gearside obtained further soil samples from the grass verge and Mr Meakin's residence at Freemans Reach. Dr Milne requested these because she preferred to have more samples to be sure that she had a "general idea of the pollen assemblage" in each area. In particular, she wished to confirm that the key species were absent from the Freemans Reach area. Senior Constable Gearside did this by digging into the ground with a small trowel and filling a small jar with soil. She took four samples from each site, using a sterilised trowel which she sterilised again between taking each of the samples. She took the samples from the same areas, that is, from the furrow in the grass verge and the area of Mr Meakin's residence where the vehicle had been parked on the previous occasion.
9. Dr Milne prepared further tables incorporating her examination of these additional samples. Broadly, the picture emerging from all the tables is the same. The pollen assemblages found in the soil samples taken from the Richmond Road area and the Freemans Reach area were different in terms of percentages and the species present. This was consistent with a survey of the types of plants at those two locations conducted in September 2014 by the botanist, Dr Phillip Kodela. The pollen assemblages detected in the soil samples taken from the tyres and mud flaps of the van were very similar to those at the Richmond Road site, and most of them were on the passenger's side. She concluded that the van had passed over an area containing that combination of pollen and spores, which she described as "unique".
10. One of the key species, which I shall refer to simply as santalum, was not found by Dr Kodela in his survey at either the Richmond Road or Frenchmans Reach site. Dr Milne said that that simply meant that santalum was not native to the area, but it could have been there many years before or it "could have come with the pollen from that area" or from roadway construction. Dr Kodela said that plants within the santalum family are not rare.
11. Dr Milne's tables disclose that the samples of soil taken from the Richmond Road site contain one santalum grain, detected in the original sample taken on 21 February 2014. However, several grains of that species were detected in the samples taken from the van, from some of the swabs and the soil taken from underneath the vehicle. Dr Mildenhall said that with only one pollen grain at the site it was very difficult to know how it got there, whether by wind, by insect or by something passing and dropping it off. He concluded that the van had been near santalum somewhere but it could not have picked up the amount detected on it from the Richmond Road area.
12. The principal areas of contention were the manner in which the soil samples were obtained and, perhaps more importantly, exactly where the pollen and spores detected on the vehicle might have come from.
13. As to the collection of soil samples from the ground, Dr Milne said that the preferable method was to take a pinch with a gloved finger to a depth of no more than 1 centimetre. This is to ensure that the most recent pollens are collected because there may be older pollens at lower depths. Indeed, she said that samples are "classically" taken by pinches over an area, those pinches being combined to make a total soil sample. Taking a sample from underneath the vehicle she would use a tape lift to take the surface soil only because, the area being protected from the rain, mud or soil might remain there for a long time and have older pollens within it.
14. Dr Milne seemed unconcerned by these matters, saying that the soil samples taken would nonetheless have contained recent pollens. The fact that the initial soil sample from the grass verge and the further samples taken later were confined to the area of the furrow was put to her in cross-examination, and she said that it "might have been good" for a few samples to be taken from the broader region. It was also pointed out that the van had not traversed the area of the furrow, and she agreed that it would have been better to have samples along the area it had travelled. Indeed, she understood that that had been the case. Nevertheless, she said that the vegetation and soil in the area looked very similar, and that the sample would "probably be representative of what I would find further down the road".
15. Dr Mildenhall said that for obtaining a soil sample from the ground he would use a sterile brush, brushing the surface onto a petri dish which would then be sealed. From underneath the van he would obtain a discrete lump of soil, if it were available, so that he could examine its stratigraphy. This would reveal layers of pollen and enable the most recent to be identified. For the same reason, when obtaining a sample from the tyre he would dig out an individual lump of soil from the tread rather than use a swab, which would pick up everything in the tread. As to mud flaps, he would remove the flap and process it, or brush the top layers onto a petri dish, or take a lump of mud from it. He had never used a swab.
16. Dr Mildenhall was of the view that the soil sample from the grass verge should have been taken from the area over which the van was said to have traversed. He described it as "rather strange" that the sample was taken from the furrow, saying that no part of the car would have been there and he did not understand why a sample would have been taken from that location.
17. Of course, Dr Milne was not involved in the obtaining of the samples but a question may arise whether the manner in which they were obtained casts doubt upon the validity of her conclusions. However, if her conclusions are accepted, there remains an issue whether the source of the pollens and spores detected on the van was the grass verge and not the roadway. On this issue, Dr Mildenhall's evidence about how pollens might be dispersed, whether the relevant plant is wind pollinated or insect pollinated, is important, as is his evidence about pollen rain.
18. Dr Milne said that pollen may be collected on the tyre treads of a vehicle if it travels over "slightly damp dirt or grass". Asked whether the vehicle might collect pollen in the same way if it travelled over a sealed or bitumen road surface, she said that it would not. The only pollen there would be of the "dried wind" variety and it would probably not be picked up and remain on the tyre. Asked whether wind pollinated pollen remains on a road surface for extended periods, she said that it would not. It would be "refloated as a vehicle passes over it and with wind'. Asked in cross-examination whether pollens and spores might stick to tyres with a little bit of moisture in the air and on a road that was slightly wet, she said that she had not done any tests on this and she did not think she could answer that question.
19. Speaking of pollen rain, Dr Mildenhall said that when it falls it settles on all areas, including roadways. He said that it was possible for cars to pick it up on their tyres and mud flaps while driving on roadways. He added that if there is pollen on the roadway and there is rain, the pollen would "get washed to the sides", accumulating "in any depressions, grooves within the roadway". It remains there when it dries out.
20. Dr Mildenhall was taken to photographs 25 and 26 in Exhibit 6, which depict a lot of debris, with the appearance of dirt and small rubble, in the gutter beside the grass verge. He said that pollens and spores could be picked up from that sort of material by cars. He was taken to a photograph, Exhibit Z, a close up of Mr McEvoy's right shoe on the roadway at marker Q. In it can be seen the debris in the gutter and what appears to be a series of grooves in the concrete. He said that pollen grains land everywhere and "tend to accumulate in the smallest of pockets and grooves, even in relatively smooth roadways" and that they can be picked up by passing cars. One of Dr Milne's tables (Exhibit C) shows that there were small amounts of santalum pollen and spore X on the rear driver's side tyre, and Dr Mildenhall said that they could have been picked up from the roadway.
21. In cross-examination, he agreed that Mr Meakin's van could have acquired pollen on its undercarriage, mud flaps and tyres from the material in the gutter while it was straddling the grass verge with its driver's side wheels on the roadway. Generally, he agreed that all the pollen and spores could have got onto the van while it was partially on the grass verge. The effect of his conclusion, however, was that the evidence was insufficient to establish that to the exclusion of any other explanation.
22. I should record that Dr Mildenhall agreed, when it was raised with him, that it was possible that the van might have picked up some pollen or spores on the journey back to Mr Meakin's home at Freemans Reach. However, I find that somewhat speculative and place little weight upon it. Pharmacology
23. On the issue of intoxication of both Mr Meakin and Mr McEvoy, evidence was given by two respected pharmacologists with forensic experience: Dr Judith Perl, called in the Crown case, and Professor Macdonald Christie, called in the defence case. For the most part their evidence was to the same effect, and it can be summarised relatively briefly.
24. Both experts were aware of the amount of alcohol Mr Meakin is said to have consumed on the day in question and the period of time over which he did so. They also had regard to his estimated weight and Dr Christie took into account his body mass index. Both had regard to a range of the rate of elimination of alcohol. Applying the established Widmark test, Dr Perl estimated that if Mr Meakin had consumed 21 schooners of beer, his blood alcohol concentration would range from 0.257 to 0.313 milliletres per 100 millilitres of blood, the most likely level being 0.285. Dr Christie's estimate was 0.23 to 0.32. If Mr Meakin had consumed 16 schooners, Dr Perl estimated a range from around 0.169 to 0.225 millilitres, the most likely level being 0.197. Professor Christie's estimate was a range from 0.144 to 0.292, the mean being 0.24.
25. Professor Christie's evidence was that the calculation of the blood alcohol concentration of a person after a long drinking session, as Mr Meakin's had been, is subject to a considerable margin of error. This, he said, arises from a phenomenon known as "first pass metabolism", which need not be examined for present purposes. The trial proceeded on the basis that Mr Meakin's plea of guilty to the count of aggravated dangerous driving causing death amounted to an admission that his blood alcohol concentration was at least 0.15. On the basis of the consumption of 16 schooners, the margin of error to which Professor Christie referred could mean a blood alcohol level below that figure. Dr Perl did not agree with this.
26. I find it unnecessary to resolve this difference of expert opinion or, indeed, to reach any precise conclusion about the range of Mr Meakin's blood alcohol concentration. Nor do I find it necessary to decide whether he had consumed 21 or 16 schooners. I am satisfied that even if he had consumed only 16 schooners, he would have been affected to a marked degree. I would accept his own account that he was "drunk or getting there" by the end of the evening, which is consistent with his attempts to find accommodation near the hotel rather than drive home.
27. That said, the level of impairment resulting from his consumption would be affected by the tolerance to alcohol he had developed as a heavy drinker. As Dr Perl explained, tolerance is "the adaption of the central nervous system to the effects" of alcohol. That adaption relates to a person's everyday functioning: his or her speech, ability to walk and stand unsupported and, generally, his or her coordination. While intoxicated, such a person remains able to perform everyday mundane skills reasonably well. Mr Meakin's evidence that, although he was approaching drunkenness, he felt "fine" is consistent with his having developed tolerance of that kind.
28. Dr Perl noted the evidence of witnesses at the hotel that Mr Meakin did not appear intoxicated, and that the CCTV footage from the beer garden and the car park did not display any signs of intoxication. This conveyed to Dr Perl that he had a very high level of tolerance.
29. That said, the experts agreed that his driving skills would have been seriously impaired. At a blood alcohol concentration above 0.1, every driver would be affected, regardless of tolerance. Dr Perl spoke of the effect upon the mid brain, the area where our perceptions, judgements and decision making occur. Both experts gave evidence of the effect upon visual perception, particularly a loss of peripheral vision. The perception of distance is also affected, and the speed at which a car is travelling can be misjudged. Dr Perl also referred to "lateral deviation" while driving in a traffic lane. Most importantly, of course, reaction time is impaired.
30. Dr Perl was asked to comment upon the fact that Mr Meakin was able to drive out of the hotel car park, negotiate the right hand turn from Dublin Street into Richmond Road, proceed down that road for about 500 metres before the fatal incident, and then drive some 20 kilometres to his home. She said that "routine types of skills, such as putting the car in motion, reversing, and turning right would be possible for a person who is a regular drink driver". Such a person would still be impaired but that impairment might not manifest itself "until something happens". Equally, a person with very high tolerance might be able to undertake a 20 kilometre journey depending on how frequently the person used that route and how often he or she drove in an intoxicated state. Here also, however, reaction to some unexpected incident would still be impaired.
31. Dr Christie gave evidence to the same effect, distinguishing between "highly overlearned automatic aspects of driving skills" on the one hand, and making decisions "when confronted with the demand to react to a situation", on the other.
32. Testing of a blood sample taken from Mr McEvoy at the post-mortem examination disclosed a blood alcohol concentration of 0.167. Dr Perl concluded that he must have been significantly intoxicated at the relevant time. Dr Christie expressed the view that such a concentration would lead to "significant effects" on balance and gait, including the ability to walk in a straight line, particularly if the person was walking on uneven ground rather than a "simple flat surface". Here also, Dr Perl was referred to the CCTV footage from which it appears that Mr McEvoy's coordination was intact. She saw this as evidence of his also having a high tolerance to alcohol.
33. Both experts gave evidence of some of the well known emotional effects intoxication can have: disinhibition, over sensitivity to a perceived slight and aggression. There is, of course, considerable overlap between them. In particular, they both saw the high spirited behaviour of Mr McEvoy in the beer garden as consistent with alcohol induced disinhibition, and Mr Meakin's behaviour towards Mr McEvoy in the car park as consistent with similarly induced aggression. However, of course, they could speak only in general terms about matters which are highly subjective. As Dr Perl put it, "you can't predict for any individual". So it is with Mr Meakin.

Issues/Verdict

1. To establish the crime of murder the Crown must prove that Mr Meakin deliberately ran over Mr McEvoy, intending to kill him or to cause him really serious bodily injury. The Crown bears the burden of proving those elements of the offence charged beyond reasonable doubt. Mr Meakin bears no burden to prove anything.
2. There is no eye witness evidence of the collision. The Crown case is circumstantial. The Crown relies upon certain facts (or circumstances) which it says are established by the evidence, and from which the conclusion should be drawn beyond reasonable doubt that Mr Meakin committed the offence charged. I must determine whether the facts relied upon by the Crown have been established and, if so, whether they give rise to the conclusion for which the Crown contends. If the facts leave open any reasonable conclusion consistent with Mr Meakin's innocence, the Crown's circumstantial case fails.
3. Subject to one matter, I should not examine the facts in isolation. It is their combined effect which I should determine. However, it is common ground that an essential fact in the Crown case is that the collision occurred on the grass verge. The Crown case fails if I am not satisfied of that beyond reasonable doubt: Shepherd v The Queen (1990) 170 CLR 573.
4. I am satisfied that Mr Meakin was annoyed by Mr McEvoy's behaviour in the beer garden, and was angry at the time he swung a punch at him in the car park. That punch may have been precipitated by something Mr McEvoy said in the car park but, no doubt, it related to what had happened in the beer garden. I consider that Mr Meakin understated the situation in his evidence when he described the incident generally as "just a small altercation that didn't mean much to me at the time".
5. That said, there was evidence from several witnesses to the effect that over the period immediately after the punch was thrown Mr Meakin reverted to his "normal self" and, generally, the situation appeared to have calmed down. However, the Crown prosecutor submitted that, however things might have appeared, Mr Meakin had maintained his rage, perhaps fuelled by alcohol. He argued that from his watching Mr McEvoy as he was leaving and unlocking his van on several occasions, it should be inferred that he was preparing to use the van to follow Mr McEvoy. He noted that, having driven into Dublin Street and remained there for several minutes, he turned right into Richmond Road and headed east, rather than turning left and driving towards his home. The Crown prosecutor argued that he did so in pursuit of Mr McEvoy, not because he wanted something to eat. He submitted that the fact that the man he ran over happened to be the very man with whom he had been in conflict at the hotel was no coincidence.
6. However, as Mr Steel pointed out, Mr Meakin did not know Mr McEvoy and could not have known where he lived. He could not have predicted where Mr McEvoy would go after he left the hotel grounds. Presumably, it was at or near the intersection of Dublin Street and Richmond Road that he waited for several minutes before turning into Richmond Road. It is unclear to me that he would have been able to observe the progress of Mr McEvoy in Richmond Road until he had made that turn. That he wanted to have something to eat before undertaking the journey home is plausible, as it is that he chose to drive the short distance to the McDonalds at Woodcroft, which he knew and liked. There would have been other McDonalds outlets available if he had driven home, one at Richmond and one at McGraths Hill, but they were close to his home and a considerable distance away.
7. In summary, the Crown prosecutor put forward Mr Meakin's continuing anger at Mr McEvoy's behaviour as the motive for his crime. Mr Meakin may have harboured some residual resentment, but I have to say that to deliberately run over Mr McEvoy would be an extraordinarily disproportionate response to conduct properly characterised as annoying or, at most, offensive.
8. As to the collision itself, it is clear that Mr McEvoy was struck from behind and, according to Dr Brouwer, more towards the left side. This is not where the injuries to him would be expected if he had deliberately stepped onto the road, facing south, intending to cross it. However, that may not have been his position in relation to the oncoming van at the time of the impact, particularly if he had stumbled onto the road rather than deliberately stepping onto it. That he might have stumbled is supported by the observations of Mr Jarman and Ms Boucher. Particularly would this be so if he were close to the gutter, hoping to hitch a ride.
9. I turn then to the collision analysis evidence. The two experts were in disagreement about the likely trajectory of Mr McEvoy's body after the impact and the point at which it might have begun. This was a matter of considerable complexity, which I have addressed by no means comprehensively in these reasons. I find it difficult to resolve that conflict and, probably, am not qualified to do so. However, my conclusions about this evidence are founded upon concessions very properly made by Mr George.
10. As I have said, Mr George arrived at his opinion in the light of an accumulation of evidence. In re-examination he fairly said: "… that physical evidence, altogether, tells me that it most likely happened over the grassed dirt area. But that is the highest point that I can give it. If you start taking away bits of those, if you start removing, say, the clump of dirt or this or that, that diminishes the argument."
11. In particular, I think it likely that Ms Layoun was mistaken when she claimed to have seen the side mirror on the roadway. Nevertheless, Mr George acknowledged that its position on the grass was not inconsistent with the impact having occurred on the road.
12. As to the clump of grass and dirt, again he acknowledged the possibility of this having occurred on the roadway. There is, in any event, an issue as to whether that item got onto the van because of the impact in question. In the CCTV footage of the van at the hotel it cannot be seen, but the images are too poor to determine whether it might be there or not. The clump was examined by Ms Wiecek, a botanist, who identified it as a species of the genus digitaria, commonly known as finger grass. Dr Kodela did not find grass of that kind in his survey of the grass verge at Richmond Road. However, his survey was conducted in September when, if it were there, it would not have been flowering and might not have been distinguishable.
13. Mr George saw no marks on the tyres of the van which might have been expected if it had come into contact with the top of the gutter separating the grass verge from the roadway. Whether or not the van might have made contact with the gutter at the time of impact, it had to traverse it to return to the roadway. Most importantly, there were no observable tyre marks from the vehicle on the verge.
14. These matters are sufficient to cast doubt upon Mr George's opinion.
15. As to the palynology, the evidence of Dr Mildenhall casts doubt upon the conclusions of Dr Milne. Quite apart from the inappropriate manner in which the soil samples were obtained for her examination, I find Dr Mildenhall's opinion as to the roadway at Richmond Road being a plausible source of the pollen and spores detected on the van persuasive. It may be that at or around the time of impact the van was close to the gutter, particularly given the undoubted impairment of Mr Meakin's driving ability, and this might explain the preponderance of that material on the passenger's side of the van. However, I express no concluded view about this as the matter was not raised with either expert.
16. It is fair to say that the evidence of Mr George and Dr Milne, taken together, paints a picture supporting the probability that the van was on the grass verge at the time of the collision. However, it falls short of establishing it beyond reasonable doubt and, taking all the evidence into account, I am not so satisfied. I find it reasonably possible that the collision occurred on the road and was not a deliberate act on the part of Mr Meakin.
17. Accordingly, the Crown case is not made out. I find the accused, Michael Meakin, not guilty of the first count in the indictment.

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