R v Olsen

Before: Newlinds SC DCJ

Decision: (1) As to Count 1: Guilty.
(2) As to Count 2: No verdict.
(3) As to Count 3: Guilty.
(4) As to Count 4: Guilty.

Catchwords: CRIME — Driving offences — Dangerous driving occasioning death
JUDGE ALONE TRIAL — s 132 Criminal Procedure Act — Findings beyond reasonable doubt that driving dangerous and caused death — Central issue was the accused the driver
EVIDENCE — No direct evidence as to who driver of vehicle was as between deceased and accused — Inferences — Intermediate facts need to be proved beyond reasonable doubt — Totality of facts proved beyond reasonable doubt accused as driver — Alternative explanation that deceased was the driver not a reasonable or rational conclusion from totality of proven facts

Legislation Cited: Crimes Act 1900 (NSW) s 52A
Road Transport Act 2013 (NSW) s 4(1)
Road Rules 2014 (NSW)
Criminal Procedure Act 1986 (NSW) s 133

Category: Principal judgment

Parties: Rex (Crown)
Blake Olsen (Accused)

Representation: Counsel:
M Swift (Crown)
G Fren (Accused)
Solicitors:
ODPP (Crown)
Legal Aid (Accused)

File Number(s): 2022/291007

Publication restriction: Nil

JUDGMENT

The facts

1. On 15 April 2022, 18-year-old Blake Olsen (“the Accused”) and his good friend 21-year-old Billy Smith drove from Coonamble to Baradine with the intention of doing some pig shooting. They were in a Toyota Hilux duel-cab utility (“the ute”) owned by the grandfather of the Accused. The Accused and Billy Smith never returned to Coonamble in the ute. By that evening, Billy Smith was dead, and the Accused was seriously injured.

2. The trip started that afternoon in Coonamble when the Accused and Billy Smith dropped in at the Shell Roadhouse and asked their friend Lydia Murray if she wanted to go with them. She declined because she was working. Billy Smith told Lydia Murray that he would give her a call when they got back to Coonamble that night.

3. Sometime between 8:37pm and 10pm, they were on their way back to Coonamble. On a section of sealed road between Baradine and Coonamble, about 7km out of Coonamble, the ute was travelling at around 140km/h when it drifted off the sealed road surface onto the grass verge, the driver corrected, and the ute went into a skid across the sealed surface of the road into the grassland beyond, by which time it was travelling sideways at high speed. After sliding through the grass and scrub for approximately 25m, it flipped and then tumbled for approximately another 80m, where it came to a rest. Various parts of the ute came adrift, some of its wheels and the tray table were thrown clear and there was left behind a trail of debris. Two dogs in the rear were killed.

4. At the point where the ute came to rest, Billy Smith was either in the passenger seat or adjacent to it. The Accused was located about 42m short of the ute in the long grass, approximately 70m from where the ute left the roadway. Both were very seriously injured. Billy Smith’s injuries proved fatal.

5. The Accused lived with his de facto partner, Peppah McMullen, in premises in Coonamble. Lydia Murray, who is Peppah McMullen’s cousin, lived in a similar relationship with Kane Olsen, a cousin of the Accused. The couples lived in different houses on the same street. All were friends with both Billy Smith and the Accused.

6. The first people to attend the scene were, firstly, Peppah McMullen, and shortly thereafter, Kane Olsen and Lydia Murray. What they confronted upon arrival was a scene of bloody devastation which I find impossible to describe adequately in words. No doubt this experience will leave them all traumatised for the rest of their lives.

7. Prior to the emergency services or anyone else arriving, in a heightened state of trauma and panic, it took some time to locate the Accused and Billy Smith, who were both very seriously injured. Billy Smith was alive in the passenger seat but pretty obviously dying. He had suffered multiple catastrophic injuries. He was comforted by them, especially Lydia Murray, first in the passenger seat of the ute and later on the ground next to it. Upon arrival of the ambulance and police, both Billy Smith and the Accused were transported to medical facilities in Coonamble, but Billy Smith died from his injuries in the ambulance before they got to the hospital.

8. The Accused was found some distance from the ute. He also was extremely seriously injured, suffering extensive brain injuries, which almost certainly rendered him immediately unconscious and immobile.

The charges

9. After investigation by the police, the Accused was charged with one count of drive a motor vehicle in a manner dangerous to another person or persons, whereby the vehicle was involved in an impact, as a result of which the death of Billy Smith was occasioned in contravention of s 52A(1)(c) the Crimes Act 1900 (NSW) (“Crimes Act”).

10. Count 2 is a “backup” offence of negligent driving causing death. Count 3 is drive motor vehicle during disqualification period and Count 4 is drive vehicle with illicit drugs present in blood.

Judge alone trial

11. On 16 October 2024, with the consent of both the Crown and the Accused, Traill DCJ made an order that the trial proceed before a judge without a jury and consequently between 2 and 5 November 2026 at Coonamble, I heard the trial. These are my reasons for my verdict.

12. Before I proceed, may I say this to the families, loved ones, and friends of both Billy Smith and the Accused.

13. I never had the opportunity to meet Billy Smith but, from all the evidence I have heard, it is clear that he was a decent young man with a bright future ahead of him. He was loved by his family and friends. His death deprived him of all the opportunities of life that lay ahead of him and is an unfathomable loss for his family, loved ones, and friends.

14. As far as the Accused, Blake Olsen, is concerned, he suffered near fatal injuries causing him extensive pain and suffering. More to the point, he will have to live with the trauma of what occurred and, regardless of whether I find he was the driver or not, the guilt involved in surviving the incident where his good friend died will be profound and long lasting. No doubt the ripple effects from this tragic event have affected all of his family, loved ones, and friends.

15. As to the three young people, all of whom were very close to both the Accused and Billy Smith, who first attended at the scene and did what they could to help, no one should have to witness what they saw, and their trauma will almost certainly be with them for the rest of their lives.

16. The Court extends its sympathy to all of those directly and indirectly involved and hopes that the finalisation of this court case is but a step along the way to some sort of healing process. I also publicly acknowledge my thanks to all those who watched and listened to the case for the respectful and dignified way they conducted themselves throughout the hearing despite the harrowing nature of the evidence.

17. Finally, as I will shortly explain, the central question for me to decide is am I satisfied beyond reasonable doubt that the Accused was driving. Before I decide that question, it is important to say that I am sure that whoever was driving that night did not set out to hurt, let alone kill, anyone.

The elements of the offence

18. The elements of the primary offence are, firstly, that the relevant driving was “dangerous," which means that objectively it was either, intrinsically in all circumstances or because of the particular circumstances surrounding the driving, was, in a real sense, potentially dangerous.

19. The test is objective and requires proof that the Accused’s driving subjected another person or persons to a level of risk greater than ordinarily associated with driving in a motor vehicle. The manner of driving must be found to be a serious breach of the proper conduct of a vehicle on a roadway, such as to be, in a real sense, potentially dangerous to others who may be upon or in the vicinity of the roadway.

20. The offence is one of strict liability, there is no need to prove an intention that the driving be actually dangerous. There is a defence of honest and reasonable mistake of fact that it was safe to drive. There is no suggestion of such a defence here.

21. The next element is causation of death. In that regard, the Crown must prove the conduct in driving was a substantial or significant cause or a sufficiently substantial cause of the outcome. It need not be the only operating cause.

22. Finally, to “drive" for the purpose of the offending includes being “in control of the steering movement or propulsion of the vehicle" (s 4(1) Road Transport Act 2013 (NSW)). Although, “drive" is not itself defined in the Crimes Act.

23. For the purpose of this case, it is sufficient to direct myself that the notion of driving for the purpose of this element is that the person sitting in the driver seat, controlling the car with their hands on the steering wheel and feet on the pedals and so on, was driving the ute.

Dangerous driving caused the death of Billy Smith

24. Mr Fren, who appeared for the Accused, made it clear in his opening and throughout the conduct of the trial that there was no issue for his part but that the driving was dangerous in the sense contemplated by the legislation, nor that the dangerous driving was the direct cause of Billy Smith's death.

25. These concessions are well-made. There was ample evidence tendered by the Crown to the effect that the primary cause of the accident was the fact that the ute was travelling at around 140km/h on a country road, at night, where the speed limit was 100km/h, at a point where the road narrowed.

26. On its own, the speed was not such as to cause the ute to be uncontrollable if driven appropriately. However, I am satisfied beyond reasonable doubt that what occurred, was that, just before a point where the road becomes narrower, the passenger side wheels of the ute left the sealed roadway and travelled for about 50m on the grass verge. The driver then sought to correct by steering the ute to the right and the ute went into a skid, which, because of the high speed, was uncontrollable and became progressively more pronounced as the ute crossed the sealed tarmac. By the time it reached the grass verge on the other side of the road, it was travelling at high speed sideways, wherein it continued to travel in that way for about 25m before it tumbled (or “tripped" over the passenger side front wheel), so as to go into a significant and violent spiralling rollover until it came to rest about 80m from where it started to tumble. During that time, it rolled over multiple times.

27. I am satisfied beyond reasonable doubt that the speed that the ute was travelling at the time the driver lost control was a very significant cause of the crash.

28. As far as causation is concerned, again Mr Fren did not put this in issue. The uncontested medical evidence is that Billy Smith died as a direct consequence of the injuries he sustained in the crash.

29. Again, I am satisfied of that element of the offending beyond reasonable doubt.

What is in issue — Who was driving?

30. The sole issue as between the parties and the only element of the offence left in light of my findings to this point is the question of who, as between the Accused or Billy Smith, was driving the ute? I direct myself that the correct legal question is, am I satisfied beyond reasonable doubt that the Crown has proved that the Accused was driving?

31. In light of those findings and the other agreed facts, if the Crown proves beyond reasonable doubt that the Accused was driving, the Accused will be guilty of Count 1 and Count 2 will fall away. It is also accepted that, if the Accused was driving, Counts 3 and 4 must return a verdict of guilty. There is no doubt that the Accused was disqualified from driving and had some illicit drugs in his system. These are both agreed facts. However, I should make it clear that there is no evidence, nor suggestion, that the drugs in the Accused’s system in any way contributed to the crash.

32. Before I come to explain my consideration of whether I am satisfied the Crown has proved the element of “driver” beyond reasonable doubt, I must first give myself some directions of law.

Directions of law

33. In compliance with subs 133(2) and (3) of the Criminal Procedure Act 1986 (NSW), I remind and direct myself as to the following principles of law, which I must apply as the judge of the facts.

General directions

34. The Accused has pleaded that he is “not guilty” to all charges on the indictment, thereafter it becomes my duty and responsibility to consider whether the Accused is “guilty” or “not guilty” of any or all of the counts and to return my verdicts according to the evidence that is before me.

35. As to the onus of proof. This is a very important direction. This is a criminal trial of a most serious nature and the burden to prove the guilt of the Accused is on the Crown. That onus rests upon the Crown in respect of every element of every charge. There is no onus of proof on the Accused at all. It is not for the Accused to prove his innocence but for the Crown to prove his guilt. As to standard of proof, it is beyond reasonable doubt. I remind myself that suspicion or a finding of probability, or even a finding of very likely, is not a substitute for proof beyond reasonable doubt. By his plea of not guilty, the Accused is requiring the Crown to prove the case beyond reasonable doubt. By pleading not guilty he is in no way required, and does not take on any onus, to prove that he is not guilty. He most certainly has no onus to prove that he is innocent, nor does he have to prove that Billy Smith was the driver.

36. It is, and always has been, a critical part of our system of justice that people tried in this Court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge beyond reasonable doubt, then the Accused must be found “not guilty” of the charges.

37. It is only the elements of the offences that must be proved beyond reasonable doubt. Not every fact in the case needs to be proved beyond reasonable doubt. It is the proof of the elements that are the subject of that heavy requirement. The elements are the essential ingredients necessary to make good a charge. I have already directed myself as to the elements of the primary charge. This direction is subject to one important exception to which I will return, concerning what are known as “intermediate facts” relied on by the Crown in circumstantial cases.

38. The phrase “beyond reasonable doubt” is a composite of ordinary everyday words and that is how I should understand them. If, at the end of my deliberations, after taking into consideration all of the evidence, and having considered the submissions made to me by counsel in their address, I am not satisfied that the Crown has established any one of the elements beyond reasonable doubt then it is my duty to bring in a verdict of “not guilty”, because the Crown will have failed to do what the law requires it to do.

39. I direct myself that if the Accused’s guilt has not been proven to my satisfaction beyond reasonable doubt, it is vitally important that I clearly understand that the Accused must be found “not guilty”. It follows from this that if I am left unable to decide whether the Crown has proved its case in relation to any element or if I have a reasonable doubt in respect of that matter, the Accused is entitled to the benefit of that doubt, and I must find him not guilty.

Agreed facts

40. A large part of the evidence before me is a Statement of Agreed Facts. There is no issue about the existence of the facts in that statement, and I must take them as established for the purposes of this trial. I have already summarised those facts in the introduction to these reasons and am satisfied of those matters. As I have said, based on those Agreed Facts, but also on my consideration of all of the evidence in the trial, I am satisfied beyond reasonable doubt as to the elements of “dangerous” and “causation.”

Submissions

41. I have heard addresses from the Crown and counsel for the Accused. I have considered those submissions and given such weight to the submissions as I think they deserve. I understand that in no sense are those submissions evidence in the case.

Common sense/impartiality

42. As the tribunal of fact, I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.

43. I acknowledge that I have a very important matter to decide in this case – important not only to the Accused but also to the whole community. I must, as a judge of the facts, act impartially, dispassionately, and fearlessly. I must not let any sympathy I may have towards the Accused or any emotional reaction as to the tragic death of Billy Smith sway my judgment.

44. As the sole judge of the facts, I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented against the Accused during the course of the trial.

Inferences

45. This is a circumstantial case. For the Crown to satisfy me beyond reasonable doubt, it needs to persuade me that I ought find by inference that the Accused was driving the ute. I need to be satisfied as to that fact beyond reasonable doubt. I direct myself that I may, in my role as judge of the facts, draw inferences from the evidence or circumstances proved. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from otherwise proven facts if such inference is the only reasonable inference that can be properly drawn from those facts. I must be satisfied of the guilt of the Accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I must examine any possible inference to ensure that it is a justifiable inference.

46. Importantly, I must not draw any inference unless it is the only rational and reasonable inference in the circumstances. For reasons I will shortly explain, this direction is critical to the resolution of this case as, at the heart of this case, are two competing inferences, one consistent with guilt and the other not. The case boils down to the question of whether the inference consistent with a not guilty verdict (i.e. that Billy Smith was the driver) is a rational and reasonable conclusion from the facts otherwise proved. If it is, then I must bring in a verdict of not guilty.

Links in chain / strands in cable

47. Ordinarily, no particular fact or circumstance relied upon in a circumstantial (inferential) case needs to be proved beyond reasonable doubt. There are, however, some circumstantial cases, and I consider this to be one, where one or more of the facts relied upon by the Crown is or are so fundamental to the process of reasoning to the guilt of the Accused so that fact or facts must be proved beyond reasonable doubt. Such facts are referred to as “intermediate fact(s)” and are sometimes described as an indispensable “link in the chain” of reasoning towards an inference of guilt. Whilst there is no settled way to determine what is or is not an indispensable intermediate fact, the question may be tested by asking whether, in the absence of a finding as to that fact, there would nonetheless be a case capable of an inference consistent with guilt. The “link in the chain” analogy is to be contrasted with other facts in circumstantial cases not essential, in which case the analogy is to a series of “strands making up a cable”. Each strand not being strong enough to prove the element but taken together make up a very strong cable capable of proof.

48. It is for me, as the Judge of the law, to determine, as a matter of law, if any particular fact or facts is or are an intermediate fact. If I reach that conclusion, I must direct myself that before I can find guilt based on an inference, I must be satisfied of that fact(s) beyond reasonable doubt from circumstances that include one or more intermediate facts. I will return to this topic later in these reasons and, will direct myself as to which intermediate fact(s) need to be proved beyond reasonable doubt. Other than such facts, it is only the element that need to be proved beyond reasonable doubt.

49. The steps in reasoning to a finding of guilt in a circumstantial case is first to find certain basic facts established by the evidence. Unless they are intermediate facts, those facts do not have to be proved to any particular level. Taken by themselves, each cannot prove the guilt of the Accused. The next step is to then ask, by way of inference, whether the conclusion from a combination of those established facts that a further fact or facts exist. The ultimate fact, being an element of the charge, is the only question that needs to be proved beyond reasonable doubt unless one of the individual facts is identified as being an essential link in a chain or an intermediate fact, in which case that fact itself must be proved beyond reasonable doubt. If, when all the proved facts are considered together, a conclusion of guilt is a reasonable one to draw, that does not mean conviction. It is necessary in those circumstances to determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with a conclusion of guilt. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the Accused, the circumstantial case will fail. At the risk of repetition, at the heart of this case is whether the other conclusion, that is that Billy Smith was driving, is a reasonable conclusion, or to put it another way, sufficient to cause me to have reasonable doubt that the Accused was the driver.

50. Drawing a conclusion from one set of established facts to find another fact involves a process of logic and rational reasoning. The conclusion cannot be based on speculation, conjecture or supposition.

51. Finally, on the topic of inferences, it is not uncommon, and in this case there are a number of examples of this, that the primary facts relied upon by the Crown are themselves inferences drawn from a series of underlying facts beneath that primary fact. If that be the case, then proof of that primary fact must be established in the same way as I had explained.

Right to silence including at trial

52. I must not draw any adverse inference against the Accused because he did not give or call evidence in his defence. I cannot use that fact against him in any way. In any event, I am comfortably satisfied that he has no memory at all of the relevant events because of his injuries.

Expert evidence

53. In this case, Dr Benjamin Harding, Dr Andrew McIntosh, and Seargent Rehwinkel have all been called as expert witnesses. An expert witness is a person who has specialised knowledge based on their training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to directly perceived facts, that is, what they saw or heard etc., and are not permitted, ordinarily, to express their opinions.

54. The value of any expert opinion very much depends on the reliability and accuracy of the material which the expert used to reach his or her opinion. It also depends on the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness's specialised knowledge.

55. Expert evidence is admitted to provide me with information and an opinion on a particular topic which is within the witness's expertise, but which is likely to be outside the experience and knowledge of the average lay person.

56. The expert evidence is before me as part of all the evidence to assist me in deciding if I am satisfied beyond reasonable doubt as to the elements of the offence. I should bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the experts, I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates.

57. There has been no challenge to the qualifications of any of the expert witnesses, all of whom I think are well qualified.

Assessing witnesses

58. I direct myself that, as the Judge of the facts, it is my role to determine what evidence I accept as truthful, and/or reliable, and/or what evidence I reject as being either untruthful or unreliable. It is also my role to determine what weight or emphasis I give to any one particular part of the evidence and what inferences I ultimately draw from the totality of the evidence.

59. It is for me to assess the various witnesses and decide whether they are telling the truth and/or whether I think they are reliable. It is a matter entirely for me as to whether I accept or are prepared to act on their evidence.

60. My ultimate decision as to what evidence I accept and what evidence I reject and how much weight or emphasis I give to any particular piece of evidence, may be based on all manner of things, including what the witness had to say, the manner in which the witness said it, and the general impression he or she made upon me when giving the evidence. It is also important to consider any particular evidence in the context of other proven facts to determine if it is plausible.

61. I am not obliged to accept the whole of the evidence of any witness, nor am I obliged to reject the totality of any witness’ evidence. I may, if I think appropriate, accept part and reject part of the same witness’ evidence. The fact that I do not accept a portion of evidence of a witness does not mean that I necessarily must reject the whole of that witness’ evidence. I am entitled to accept the remainder of that evidence if I think it worthy of acceptance.

Evidence as to who the driver was

62. There is no direct evidence as to who was driving the ute. Billy Smith was killed and did not say anything relevant to this question prior to dying.

63. The Accused, at first, exercised his right of silence when questioned by police but ultimately, gave the following statement under compulsion on 29 September 2022, pursuant to regulation 287 of the Road Rules 2014 (NSW). His statement was:

“In relation to the crash, I have no recollection of any events on that day at all. My current most recent memory of events before the crash is from several days beforehand, and the next thing I remember is waking up in hospital approximately 18 days later. I currently have no recollection of the events of the crash or the day it occurred.”

64. In light of the Accused’s very serious injuries sustained in the accident, about which there is considerable evidence as to very significant brain trauma, which resulted in him being almost certainly rendered immediately unconscious and then spending many days in ICU and many weeks in hospital with multiple injuries, including significant life-threatening head trauma, his statement that he has no memory as to the incident at all is, not just plausible, but likely, and I have no reason to doubt it.

65. The Crown relies on all of the circumstances that can be proved, so as to seek to persuade me that I ought be satisfied beyond reasonable doubt that it was the Accused who was the driver.

66. I will first state the circumstances relied upon by the Crown and then analyse the evidence supporting each circumstance.

67. The circumstances relied upon are as follows:

68. That whoever was driving the ute did not have a seatbelt on and whoever was the passenger in the ute did have a seatbelt on;

69. The injuries sustained by Billy Smith;

70. The injuries sustained by the Accused; and

71. The location of each of Billy Smith and the Accused immediately after the accident.

72. Dealing then with the evidence as to each circumstance relied upon.

The position of the seat belts

69. The question of what are known as seatbelt injuries, as well as other injuries occasioned to both Billy Smith and the Accused is significant in this case. The reason for that significance is the uncontested evidence of all of the experts was that, upon examination of the seatbelts, the driver’s side seatbelt in the ute was in the “locked short" position and the passenger side seatbelt was in the “locked long" position. This is important because the mechanics of how modern seatbelts operate in an accident is similar to the operation of airbags. That is, upon sudden deceleration indicating a collision, an explosion goes off in the seatbelt housing which has the effect of retracting the seatbelt as far as possible, whilst at the same time engaging a ratchet type mechanism which then locks the seatbelt in the position it retracted to.

70. If there is no one sitting in the seat or if there is a person sitting in the seat who does not have the seatbelt on, the seatbelt will retract to the “locked short" position, but if there is a person wearing the seatbelt it will retract to a “locked long" position, being the point at which the person's body stopped the retraction.

71. Whilst Mr Fren did not concede the expert findings, he did properly concede that it was close to inevitable that I would accept that evidence.

72. I do accept that evidence, it is compelling, rational, and easy to understand. It was not the subject of any challenge at all.

73. I am also satisfied, because all of the evidence, both expert and otherwise, is consistent with this, and if necessary I am satisfied beyond reasonable doubt, that the seatbelts in the ute, immediately after the accident, were:

74. The passenger seatbelt was “locked long;” and

75. The driver seatbelt was “locked short.”

76. The next factual conclusion, itself the product of inferential reasoning based on the expert testimony to which I have just referred, is that whoever was the driver of the ute did not have his seatbelt on and whoever was the passenger in the ute did have his seatbelt on. On the basis of the findings I have made so far, that conclusion is inevitable.

77. I am satisfied beyond reasonable doubt that, whoever the driver was, was not wearing a seatbelt and, whoever the passenger was, was wearing a seatbelt. This is an important finding because, for reasons I will come to, I consider this to be an “intermediate fact” essential to the proof of the Crown’s case.

Billy Smith’s injuries

Seatbelt injuries

76. There is a detailed Autopsy Report relating to Billy Smith prepared by Dr Harding. Dr Harding gave evidence explaining his Autopsy Report and his expert opinions as to Billy Smith’s injuries. He was cross-examined. His evidence is a combination of direct evidence of his observations and clinical examination and opinion evidence based on those clinical observations. I found him to be an honest, reliable, and compelling witness.

77. Dr McIntosh has also provided extensive opinion evidence about these injuries in his Reports. His evidence is based on Dr Harding’s Autopsy Report together with a large number of autopsy photographs. He was also cross-examined, and I also found him to be an honest and reliable witness.

78. Particular focus was placed on both Dr Harding’s and Dr McIntosh’s opinions as to what are referred to as “seatbelt injuries.” I have reviewed the photos; in particular, photo 40 from Exhibit D, about which both witnesses gave evidence.

79. In the Autopsy Report, Dr Harding said, in relation to Billy Smith's injuries:

“There was a possible seat belt mark present on the anterior abdomen, and pelvis with an oblique linear abrasion, extending from the right iliac fossa to the left side of the upper abdomen and a horizontal band of deep bruising on the anterior aspect of the pelvis. The orientation of the mark is not inconsistent with injury caused by a 3 – point car restraint (passenger side seatbelt).”

80. When he gave his oral testimony, Dr Harding was asked by me whether he saw a difference between an opinion that Billy Smith's injuries were “not inconsistent with seatbelt injuries,” as opposed to an opinion that he considered the injuries to be consistent with being caused by a seatbelt.

81. He preferred the former. In other words, he was not prepared to say that the injuries were consistent only with seatbelt injuries and was quite candidly prepared to leave open the possibility that they may have been caused by other mechanisms.

82. Dr Harding also cautioned that the accepted literature in the field of forensic medicine is such that it is considered unsafe and undesirable to form a definitive conclusion as to whether a person was or was not wearing a seatbelt based only on clinically observed injuries.

83. Dr McIntosh’s opinion was consistent with Dr Harding’s. He also considered there were injuries to Billy Smith consistent with a seatbelt being worn but said that they were also consistent with other mechanisms of injury. He also said it was not appropriate to conclude from injuries alone in this sort of violent collision, whether a person was or was not wearing a seatbelt.

84. I should say that I have reviewed the autopsy photographs myself and, in particular photograph number 40 in Exhibit D, which to my untrained eye do very much look like injuries caused by a sash seatbelt across the lower abdomen or upper pelvis of Billy Smith, with a significant injury towards his right hip where one would expect a seat belt buckle to be located, and another injury going diagonally across and up his abdomen, where one would expect the bottom part of the shoulder strap to be located.

85. However, I am not an expert and armed with the caution in the medical literature to which I have referred, consider that I can take it no further than Dr Harding’s and Dr McIntosh’s limited conclusions that the injuries are not inconsistent with a seatbelt being worn by Billy Smith and it is certainly possible that they are seatbelt injuries. That possibility is more than fanciful and accordingly I will take it into account when considering the ultimate question, but I will give it limited weight.

Mobility

86. Both medical experts also expressed opinions as to whether Billy Smith would have been mobile, in the sense of being able to move himself around after the crash. They both considered that to be extremely unlikely. For my part, taking into account the medical evidence but also applying my own life experience and what I think is common sense, I consider the likelihood of Billy Smith being able to move his position after the crash in any significant way to be fanciful. His injuries included bilateral pelvic fractures and bilateral knee fractures, broken ribs, and many other very serious injuries.

Upper body injuries/Blood

87. There were surprisingly few apparent cuts and abrasions to the upper part of Billy Smith’s body, in particular his head. He did have a fractured nose and some facial bruising, lacerations, and abrasions. He also had bilateral rib fractures. He did not suffer any cervical spine injuries. I will return to the relevance of this finding. He did bleed considerably. There was blood all over the cabin. Two swabs were taken of some of that blood and both proved to be the blood of Billy Smith. None proved to be the blood of the Accused.

The injuries to the Accused

Seatbelt injuries

88. As I have already said, like Billy Smith, the Accused suffered multiple very serious injuries, but there is no evidence in any of the medical records of anyone observing anything like a seatbelt injury.

89. Evidence was given by one of the paramedics who arrived at scene, Molly Neville. I accept her evidence. She explained that seatbelt type injuries to the abdomen and/or chest areas are an important diagnostic tool for first responders to use to assess appropriate treatment for a patient. She has no recollection of observing, one way or the other, any seatbelt injuries on the Accused, but said, and I accept, that it was her usual practice that if she had made such an observation, she would have written them in her notes. As there are no such notations made by her contemporaneously, I take that fact into account so as to conclude on the balance of probabilities that there were no observable seatbelt type injuries on the Accused.

90. However, again, the experts agreed that the absence of seatbelt injuries, whilst consistent with a person not wearing a seatbelt, are possible in circumstances where a person was wearing a seatbelt, even in very serious crashes.

91. For that reason, whilst I consider the fact that the Accused did not have any seatbelt-type injuries to be relevant, I propose to give it limited weight.

92. As to other injuries, the Accused had very serious brain injuries consistent with a high-speed impact onto a soft surface, such as dirt or long gras. Those injuries were inconsistent with his head hitting anything hard or sharp inside the car.

93. His discharge summary from John Hunter Hospital, dated 21 May 2022, records that he sustained a traumatic brain injury, thoracic spine fractures, a scapular fracture, and soft tissue injuries. There was a significant calf wound, bilateral lung contusions, and a shoulder wound. There are no notes recording any significant wounds to his head. He did not suffer any cervical spine injury.

Mobility

94. As far as the mobility of the Accused after the crash is concerned, he suffered a very serious head trauma, which, on all of the medical evidence, would have certainly rendered him immediately unconscious and incapable of voluntary movement.

The location of the Accused and Billy Smith after the accident

95. The first person on the scene that night was Peppah McMullen, followed by Kane Olsen and Lydia Murray.

96. As to the position of the Accused upon their arrival, their evidence was entirely consistent. He was not in the vicinity of the ute, and it took some considerable amount of time for him to be located about 40m away because he was hidden in the long grass.

97. A diagram prepared by Sgt Rehwinkel, the police crash investigator (Exhibit F), measures the location of the Accused, where he was found, as some 41m short of where the ute came to rest.

98. The only inference from the location of the Accused after the accident together with my finding that he would have been immediately deeply unconscious, and this is consistent with all the expert evidence, is that, at some point, not necessarily adjacent to where he was found, he was thrown clear of the ute. Almost certainly he was thrown clear short of where he ended up, probably close to the point where the ute flipped and commenced to roll and tumble. I am satisfied beyond reasonable doubt that his injuries were such that there is no possibility that he moved himself from where he landed. He was found at the spot that he rolled after he landed, being about 41m from the ute.

99. As to Billy Smith, the evidence was not all one way.

100. The first person on scene was Peppah McMullen. I will return to her evidence shortly.

101. The next two people on the scene were Kane Olsen and Lydia Murray.

102. Kane Olsen and Lydia Murray's evidence was consistent. Upon arrival at the scene, they first saw Peppah McMullen's car with Peppah standing in the roadway in an extremely distressed and agitated state. She pointed towards the wrecked ute in the distance, which they could see, but was unable to have any coherent discussions with them at that time. However, she had been speaking to them on the phone as they approached in a separate car and Lydia Murray remembers she said something like “the grass is too long, I don’t know where they are.” There were 2 dogs in the ute which were also killed. There is no evidence of where their bodies ended up, but I consider that if Peppah McMullen said those words, she was almost certainly referring to the Accused and Billy Smith as the “they,” rather than the Accused and the dogs.

103. Kane Olsen and Lydia Murray then ran to the ute, followed closely by Peppah McMullen, where they all said they located Billy Smith in the passenger seat, which was in a slightly reclined position. Neither Peppah McMullen nor Kane Olsen gave any evidence as to the passenger seatbelt. However, Lydia Murray gave evidence that the seatbelt was hanging loose (consistent with it being in the “locked long” position), although not clear, the general impression of her evidence was that it was undone. Billy Smith was conscious but only just. He would have been capable of unbuckling his seatbelt after the ute came to a stop.

104. Lydia Murray stayed with Billy Smith, comforting him whilst the others searched for the Accused until police and ambulances arrived. She moved Billy Smith to the ground next to the ute and comforted him as best she could.

105. Peppah McMullen's evidence was to the following effect. She became agitated that the boys were late home. She rang the Accused on a number of occasions but got no answer. She then used the “F**ind M**y Ph**one" app, which identified that the Accused’s phone was stationary about 7km out of Coonamble off the road. She rang Lydia Murray in an agitated state and shortly thereafter got in her car to drive towards the scene. Lydia Murray and Kane Olsen saw her leave and followed a few minutes later in a separate car. On the way, Peppah McMullen rang Lydia Murray, who by that stage was in the car with Kane Olsen following, and told her that she was very concerned. They all assumed, by this time, that there had been an accident. Kane Olsen rang Triple 0 before his arrival at the scene.

106. Peppah McMullen said that, upon arrival at the scene, she saw the car in the distance and that she heard and saw Billy Smith standing by the car calling out to her for her to “call an ambulance." She did not call an ambulance, rather, she again rang Lydia Murray, but did not say anything to the effect that she could see Billy Smith standing up in the distance. She does not remember what she said but as I have already recorded, Lydia Murray remembers her saying that she could not find “them” because the grass was too long. She then says that she ran over to the car where Billy Smith was standing up holding himself upright between the passenger door and the cabin, using the roof of the cabin to support himself. She asked him if he was alright and he said he was, although shortly after that he told her that he was dying.

107. She then helped him to get into the passenger seat (the words used in her evidence was “back into the car"), wherein she then left the scene and went back to the roadway, at which point Kane Olsen and Lydia Murray arrived.

108. While she has no memory, and indeed all of the participants at this point were quite understandably in an extremely agitated and stressed state, I am satisfied that she did not tell them that she had just seen Billy Smith at the car standing up saying he was all right.

109. The timing of Peppah McMullen’s account does not sit at all comfortably with the objectively known facts as to when the phone calls occurred. In short, there does not seem to have been sufficient time for her to have got over to the ute, put Billy Smith in the seat, and returned to the road before Kane Olsen and Lydia Murray arrived. This is because the timing of the various calls between them and the call to Triple 0 are all objectively proved.

Billy’s injuries

110. As I have already said, Billy Smith suffered multiple catastrophic and ultimately fatal injuries. They included, but were not limited to, bilateral displaced comminuted pelvic fractures and bilateral tibial plateau injuries. In other words, Billy had suffered very serious orthopaedic injuries to both sides of his hips and both knees. He also had multiple broken ribs and a fractured nose.

111. Without the assistance of any expert opinion, in the context of those injuries (including facial fractures, broken ribs, and multiple cuts and abrasions), it does seem to me to be very unlikely, to the point of impossible, that Billy Smith would have been able, in those circumstances, to either move himself from the driver’s seat to the passenger’s seat and/or to get himself out of the car, or off the ground, and stand up or, if he had been thrown clear of the car, to get up, walk to the car, and be in a standing position next to the ute, holding onto the roof for well over half an hour, perhaps close to an hour, after he suffered those injuries when Peppah McMullen arrived.

112. There was expert evidence on this question.

113. Dr McIntosh prepared a Biomechanics and Collision Report and is appropriately qualified, he opined as follows:

“In my opinion, the injury suffered by both the Accused and the deceased (Billy) would have rendered them both immobile"

114. In particular, concerning Billy Smith, he said as follows:

“Billy Smith suffered injuries to the pelvis and lower limbs that would have, at least, made it extremely painful to weight bear and move the lower limbs and, most likely, made it impossible to weight bear and move. Crawling would have equally improbable for Billy Smith because he would have applied loads directly onto the tibial fracture sites. The autopsy report is limited with regards to ligament and muscle injuries that may have been associated with the tibial and pelvic fractures. A stable pelvis is a pre-requisite for normal weight bearing and walking and provides areas of large muscles to attach which are essential for movement -walking, crawling etc. Assuming pain was not an issue and there was normal brain function, Billy Smith may have been able to drag himself using his upper limbs. Billy Smith's rib fractures would have limited upper limb movement due to pain.”

115. I accept that evidence. Dr McIntosh was a very impressive witness. I found all of his evidence reliable. Although, I should say that I do not think his assumptions as to pain not being an issue or there being normal brain function are reasonable. I am sure Billy Smith would have been in excruciating pain. When Lydia Murray and Kane Olsen arrived, Billy Smith was conscious, but only barely. The Autopsy Report records that when the ambulance arrived, he was on the ground next to the ute trying to get up. The medical conclusion accords with what I consider common sense. I think it is close enough to impossible that Billy Smith managed, after the accident, by his own efforts, to get himself standing up beside the car or to move himself from where he ended up.

116. Where does this then leave the evidence of Peppah McMullen? It cannot be overlooked that she was at the time, and remains, the Accused's partner. She waived her right to decline to give evidence in the trial against him, but she obviously has a profound interest in him not being convicted.

117. That being said, I observed her giving her evidence. She was obviously very distressed when she gave her evidence but was, it seemed to me, trying as best she could to recall what happened on the night.

118. Quite understandably, on the night, she was even more distressed and by the time she reached the crash site would have already been extremely traumatised. She had worked out there had been an accident. She would have assumed it was at high speed. She knew the phone was not being answered, was well off the road, and had been stationary for some time. In short, she knew what she was going to find when she got to the scene would be bad. As it turned out, it was worse than she could have imagined. She was confronted with a horrific scene, involving her partner. She could not find him. She would have thought the Accused was either dead or seriously injured.

119. Whilst generally I accept her to be an honest and reliable witness, I do not accept and am not prepared to act on that part of her evidence, to the effect that she saw and spoke to Billy Smith, who was standing outside the car when she first got there, and that she helped him back into the passenger seat, as reliable evidence.

120. Apart from anything else, it is not consistent with Dr McIntosh's opinion that it would not have been physically possible for Billy to stand up. It is also not consistent with her saying nothing to that effect to Kane Olsen and Lydia Murray, i.e. that she had seen and spoken to Billy Smith and that he was in the ute. I also think it extremely unlikely that she would have put him back in the passenger seat, then have left him there alone to return to the roadway. The timing of the various phone calls also seem inconsistent with this evidence.

121. Accordingly, I conclude, as a matter of fact, that when the ute came to a halt, Billy Smith was in the passenger seat and that the Accused was 40 odd metres away in the long grass.

122. From that I conclude by inference that the Accused was thrown clear of the ute early on during the period of the crash at about the point where it started rolling over and that Billy Smith remained with the ute until it came to a halt. I will explain later why I think the Accused was thrown clear early in the roll over.

Dr McIntosh’s opinion

123. As I have said, Dr McIntosh has prepared a comprehensive report, together with a short, supplementary Report, and gave evidence before me. He was a very impressive witness, not least because of the very careful, fair, and balanced way that he sought to give his evidence.

124. In part, his Report reads:

“The reasons for my opinions are presented below.

…

Blake Olsen was found along the roll path of the Toyota at a position approximately 42 m south-east of the Toyota's resting place. Therefore, it is most likely that he was ejected. In my opinion, it is very unlikely that Blake Olsen could have walked from the vehicle to this location.

Assuming that Blake Olsen was the driver, he did not suffer cervical spine injuries as a result of roof crush. The driver of the Toyota was vulnerable to roof crush related injury because the driver side was trailing during the rollover. Roof crush was greater over the driver side than the passenger side. Blake Olsen was most likely ejected early in the Incident. Unrestrained occupants can be fully ejected from either side of the vehicle, once an opening is created. They can retain the speed of the vehicle and move in front of the vehicle as it rolls. Neither occupant suffered cervical spine injuries, despite the threat associated with rollover and roof crush.

…

Blake Olsen's most severe injury was TBI [traumatic brain injury]. The brain injuries are consistent with a high-speed direct impact resulting in high magnitude head [deceleration]. In my opinion, his head impacted a large non-rigid surface, such as the ground. Had the surface been rigid or with an angled profile, for example the vehicle pillars or door frame, the force of the impact that caused the brain injuries would also likely have caused cranial or facial fractures.

…

In total, Blake Olsen's injuries are consistent with being ejected, but not specifically consistent with being the driver or passenger.

…

Billy Smith's injuries are also not unique to being the driver or passenger. There are strong indications based on the injuries that he was the passenger:

1. The bruising and superficial injuries to the abdomen and pelvis are consistent with the geometry of the front passenger belt. Assuming that Billy Smith was wearing the seatbelt, the belt would have applied high magnitude forces to his pelvis, abdomen and trunk.

2. The origin of the left upper limb injury in the vicinity of the elbow is unknown. It is plausible that this was caused by partial ejection of the left arm during the rollover.

…

4. There are numerous lower limb superficial injuries. These could have been caused within the vehicle or, hypothetically, after ejection. However, the presence of these injuries and absence of similar upper limb injuries is unusual. The lower limb injuries could have been caused within the vehicle as the lower limbs impacted the vehicle interior and as a result of intrusion into the occupant area.

…

the pelvic and tibial fractures could have been caused in one substantial impact to the lower limbs or in a series of separate impacts. I have not been provided with sufficient information to form a stronger opinion and this may not be possible, even if more information was available. There would have been numerous opportunities for frontal or lateral impacts to the lower limbs and pelvis within the vehicle, even for a restrained occupant as a result of the frontal and lateral impacts that the vehicle was exposed to during the rollover phase of the crash and vehicle intrusion. As the rollover progressed, the benefit of the seatbelt in managing impacts within the vehicle would be reduced as the occupant became out of position and the vehicle structures deformed.

In addition to the injuries, the inspection of the Toyota provided clear evidence that the front passenger seatbelt had been worn during the crash.

In total, Billy Smith's injuries are consistent with him being the seatbelt-restrained front passenger, but it is also plausible that an occupant could be ejected and suffer many of the reported injuries.

In total, Billy Smith's injuries are not consistent with him being the seatbelt-restrained driver of the Toyota. As considered above, he could have been the unrestrained driver (setting aside the witness statement regarding his position in the vehicle). If he had been the unrestrained driver, he would most likely have been ejected.

…

2. The effects the injuries had on the accused and the deceased respectively with regard to ability to move, walk, crawl etc.,

In my opinion, the injuries suffered by both the accused and deceased would have rendered them both immobile.

The reasons for my opinion are presented below.

Billy Smith suffered injuries to the pelvis and lower limbs that would have, at least, made it extremely painful to weight bear and move the lower limbs and, most likely, made it impossible to weight bear and move. Crawling would have [been] equally improbable for Billy Smith because he would have applied loads directly onto the tibial fracture sites. The autopsy report is limited with regards to ligament and muscle injuries that may have been associated with the tibial and pelvic fractures. A stable pelvis is a pre-requisite for normal weight bearing and walking and provides areas of large muscles to attach which are essential for movement - walking, crawling etc. Assuming pain was not an issue and there was normal brain function, Billy Smith may have been able to drag himself using his upper limbs. Billy Smith's rib fractures would have limited upper limb movement due to pain.

Blake Olsen suffered severe brain injuries that would have most likely prevented any voluntary and coordinated movement. The impairments related to the brain injuries would have been most likely immediate. His Glasgow Coma Scale score was 6/15 at 23:54 after the Incident. Diffuse axonal injury usually results in unconsciousness.

3. Whether it is plausible that the deceased was able to move himself from the driver's seat into the passenger's seat with his injuries.

In my opinion, it is not plausible that the deceased was able to move himself from the driver's seat into the passenger's seat with his injuries.

In my opinion, the following are plausible explanations for the deceased being found in the passenger seat:

1. The deceased was seated in the passenger seat and was restrained by a seatbelt. Most Likely Reason.

2. The deceased was the unrestrained driver. The accused was the passenger. The accused was ejected and the deceased was moved by the forces in the rollover into the passenger seat. Unlikely.

The reasons for my opinions are presented under opinions 1 and 2. In addition, to the reasoning earlier in my report:

1. In order to 'move himself' from the driver seat to passenger seat, Billy Smith would have had to extract his lower limbs from the driver footwell area and away from the steering wheel, and then use his upper limbs (and whole body) to lift and transfer himself across the centre console of the Toyota. Based on the extent of his injuries and the related impairment of movement, it is very unlikely that Billy Smith would have been able to transfer himself.

2. Had Billy Smith been the unrestrained driver, in the scenario described above and based on the rollover characteristics (high speed and multiple complete rolls), it is likely that Billy Smith may have suffered cervical spine and/or more severe head and facial injuries as a result of uncontrolled impacts within the vehicle.”

125. Dr McIntosh’s conclusions in his first Report were as follows:

“1. The injuries sustained by:

i. Both vehicle occupants were caused by impact forces applied to the occupants during the rollover, either within the vehicle, while being fully or partially ejected and/or after ejection.

ii. The deceased are consistent with the deceased being the seatbelt-re[s]trained front passenger.

…

iii. The accused are consistent with being ejected from the vehicle and non-specific regarding the seated position in the vehicle.

2. The injuries suffered by both the accused and deceased would have rendered them both immobile.

3. It is not plausible that the deceased was able to move himself from the driver's seat into the passenger's seat with his injuries.

i. Billy Smith suffered injuries to the pelvis and lower limbs that would have, at least, made it extremely painful to weight bear and move the lower limbs and, most likely, made it impossible to weight bear and move (walk, crawl, drag).

ii. Blake Olsen suffered severe brain injuries that would have most likely prevented any voluntary and coordinated movement.

4. The following are plausible explanations for the deceased being found in the passenger seat:

i. The deceased was seated in the passenger seat and was restrained by a seatbelt. Most Likely Reason.

ii. The deceased was the unrestrained driver. The accused was the passenger. The accused was ejected and the deceased was moved by the forces in the rollover into the passenger seat. Unlikely.”

126. In a second Report dated 19 February 2024, Dr McIntosh responded to the following specific question:

“please clarify whether in your opinion it is a reasonable or rational possibility that the following occurred:

“82.4(ii) The deceased was the unrestrained driver. The accused was the passenger. The accused was ejected and the deceased was moved by the forces in the rollover into the passenger seat”

127. To this question, Dr McIntosh responded:

“7. My opinion is that it is possible, but unlikely (not a reasonable or rational possibility) that the forces in the subject crash could have moved an unrestrained driver into the passenger seat and that person would occupy the passenger seat when the vehicle came to rest.

8. It is a reasonable and rational possibility (the most likely outcome) that the forces in the subject crash would have resulted in the full ejection of the unrestrained driver of the Toyota.”

128. Dr McIntosh is more than well qualified to express the various opinions I have recorded.

129. He has considerable expertise in the field of biomechanics and ergonomics/human factors, he has completed traffic crash reconstruction training courses, studied injury causation, safety systems and devices, crash and accident investigation, and is published reasonably widely in all those areas.

130. He has experience in researching, studying, and/or examining motor vehicle crashes, crash causation and contributing factors, vehicle dynamics, vehicle performance, vehicle safety systems performance in rollover crashes, occupant injuries in motor vehicle crashes, the biomechanics of occupants in motor vehicle crashes, occupant kinematics, occupant injury, injury biomechanics, and so on. He has investigated many motor vehicle accidents, and he has qualifications as a physiotherapist, and has a PhD.

131. In his capacity as a physiotherapist by way of training and professional work, he has much experience in assessing the movement capacity of people following trauma. However, he is not qualified as a medical practitioner.

132. As can be seen from his second Report, Dr McIntosh was asked by the solicitors for the Crown to express his opinions in terms of “not a reasonable or rational possibility” or “a reasonable or rational possibility” as opposed to his preferred language of “possible but unlikely” or “plausible” and so on. His ultimate opinion was that he considered it not to be a reasonable or rational possibility that Billy Smith had been the unrestrained driver and ended up being thrown into the passenger seat.

133. Dr McIntosh was questioned extensively by the Crown and cross-examined by Mr Fren about the meaning he ascribed to those various word and phrases. I also asked him a number of questions. Many of these questions were directed to what he meant by words such as “likely,” “unlikely,” “plausible,” or “reasonable or rational possibility.”

134. It became clear to me that Dr McIntosh was struggling with the linguistics. Often when he identified something as a possibility he was conveying little more than acknowledging that “anything is possible," which he was trying to make clear by adding the rider “but not likely."

135. When using the word “plausible” he was seeking to explain that what was being discussed was possible as a matter of physics.

136. I do not blame him for struggling with these concepts. The phrase “reasonable or rational possibility" is an invention by lawyers often used in discussions about levels of legal proof. It ought not be surprising that nonlawyers find such concepts difficult to grasp.

137. A number of things are clear to me from Dr McIntosh’s evidence. First, he was extremely well qualified to give the evidence he gave. Second, he is also a very careful and measured man and was doing his best to present his opinions in a way that was fair, balanced, and reasonable. He was seeking to avoid coming to the ultimate issue before the Court based on the beyond reasonable doubt standard. Third, I have no hesitation in accepting his opinions as his opinions and consider them to be logical, well-reasoned, and easy to understand. Finally, there is no doubt that his expert opinion is that it is very likely that the Accused was the driver and very unlikely that Billy Smith was the driver. He was prepared to describe the level of unlikelihood as not a reasonable or rational possibility.

138. As I have already directed myself, just because he is an expert and has expressed expert opinions, does not mean that I am bound to accept them. Moreover, he was expressing opinions as a scientist by reference to scientific-type proof, in terms of likelihood and unlikelihoods, and theoretical possibilities.

139. Ultimately, the question for me in this case is whether I am satisfied beyond reasonable doubt that the Accused was the driver at the time of the crash.

140. That is a mixed question of fact and law. I need to be satisfied as to factual matters and then, by a process of logical reasoning, consider whether those factual matters taken together justify a finding of driver beyond reasonable doubt. If there is another explanation inconsistent with a finding of guilt, I must acquit, unless I am satisfied that other explanation is not a reasonable or rational inference.

An intermediate fact

141. In a strand in the cable inference case, none of the primary facts need to be proved to my satisfaction to any particular level. However, the level of satisfaction I reach as to each primary fact must be factored into the weight I give that fact. In a link in a chain inference case, essential findings to the ultimate conclusion can be required, as a matter of law, to be proved beyond reasonable doubt.

142. In this case, I think there is an essential link in the chain involved in the Crown’s reasoning, in fact it is the first link in any chain of reasoning as to what happened. That is the alleged fact that the driver was not wearing a seatbelt, and the passenger was. I direct myself that is an intermediate fact that must be proved beyond reasonable doubt.

143. There is direct and uncontradicted expert evidence on that topic, including but not limited to Dr McIntosh. Sergeant Rehwinkel gave consistent evidence. I am satisfied beyond reasonable doubt that, at the time of the crash, whoever was the driver was not wearing a seatbelt and whoever was the passenger was wearing a seatbelt.

144. The other primary facts relied upon by the Crown are the physical injuries sustained by both Billy Smith and the Accused, the location of both Billy Smith and the Accused in and out of the vehicle when the ute came to rest, the expert evidence as to the physical forces involved, and the likelihood or otherwise of either Billy Smith or the Accused being able to move themselves from the position they ended up in immediately after the crash.

145. Ultimately, and perhaps this is obvious, there are only two real explanations open as to what happened in the crash. The first is that the Accused was the unrestrained driver and Billy Smith was the restrained passenger and that, during the course of the crash, the Accused was ejected from the ute and Billy Smith remained in the ute in the passenger seat. That is the explanation that the Crown submits is the only reasonable inference to be reached from all of the facts.

146. The second explanation is that Billy Smith was the unrestrained driver, and the Accused was the restrained passenger. During the mechanism of the crash, the Accused, notwithstanding that he was wearing a seatbelt, was ejected from the ute and Billy Smith was thrown around inside the ute so as to end up in the passenger seat.

147. There was a third possibility the subject of submissions. It depended, in the first instance, on acceptance of the evidence of Peppah McMullen, which I have already determined not to accept, that is that Billy Smith was seen shortly after the accident standing next to the ute, holding himself up. This hypothesis is that it is possible that the mechanics of the crash caused the ejection of, firstly, the Accused from the passenger seat, notwithstanding he was wearing a seatbelt, and then later towards the end of the rolling over aspect, ejected Billy Smith in a way that caused him to land either on his feet or in a position where it was possible for him to get to his feet so as to be standing next to the ute when Peppah McMullen arrived on the scene, which on any view of the timing had to be more than half an hour after the crash, probably longer.

148. All of the medical evidence, including Dr McIntosh's expert opinion, is that it simply would not have been possible for Billy Smith to get himself upright in circumstances where he had bilateral fractures to his pelvis and two broken knees and many other serious injuries. Applying my own common sense and life experience to the situation I consider the possibility of him being able to do that to be fanciful and reject it. Moreover, the injuries to both the Accused and Billy Smith are such that the driver must have been ejected early in the rollover because of the lack of cervical injuries to either occupant. As Dr McIntosh explained, such injuries would have been caused to the driver if he stayed in the ute for any length of time. Moreover, the lack of any of the Accused’s blood being located in the cabin is relevant. All this leads me to be satisfied that the Accused was ejected very early in the rollover process.

149. Absent my acceptance of Peppah McMullen’s evidence, this third explanation I reject as fanciful and put to one side.

150. Dr McIntosh acknowledges that both the remaining explanations are possible, but concludes that the former is the likely reason and the latter is, to use his words in his first Report, “unlikely," or as he said in his second Report:

““my opinion is that it is possible but unlikely (not a reasonable or rational possibility) that the forces in the subject crash could have moved an unrestrained driver into the passenger seat and that person would occupy the passenger seat when the vehicle came to rest

…

It is a reasonable and rational possibility (the most likely outcome) that the forces in the subject crash would have resulted in the full ejection of the unrestrained driver of the…”

151. Reminding myself of the direction I have given myself as to findings of guilt based on inference, the real question here is whether the second explanation, described by Dr McIntosh as unlikely, is possible or plausible to the extent that it is sufficient to cause me to have reasonable doubt as to accepting the only other available explanation.

The parties’ competing submissions

152. On behalf of the Crown, it is submitted that, not only is the first explanation I have identified the conclusion that ought be reached, but also that the competing inference is not a reasonable or rational inference properly to be drawn from the proven facts. To put it another way, the second explanation is not a rational and reasonable conclusion from the facts otherwise proved so as not to rise to a level sufficient to cause me to have reasonable doubt as to the other explanation.

153. The Crown's submission is that I should be satisfied that, firstly, whoever the driver was, was not wearing a seatbelt and, whoever the passenger was, was wearing a seatbelt. I have already concluded that I am satisfied of that matter beyond reasonable doubt. Second, that it is likely that the driver was ejected from the ute early on in the rollover portion of the crash because of the lack of cervical spine injuries to either of the occupants. The lack of the Accused’s blood being identified in the cabin is consistent with this conclusion. As is the absence of blunt force trauma to the Accused’s skull causing head fractures. Third, it is more likely that the unrestrained driver was ejected from the ute early in the rollover process as opposed to the restrained passenger. Fourth, the injuries to the Accused, whilst very serious brain injuries, are consistent with his head hitting a soft surface, like ground with long grass on it, and inconsistent with hitting hard material inside a ute rolling over. Fifth, it is extremely unlikely, albeit possible, for a person wearing a seatbelt to be fully ejected from a motor vehicle in a rollover situation. Sixth, both Billy Smith and the Accused must have been rendered immobile immediately after the crash and could not have moved themselves from where they ended up. Seventh, the possible seatbelt injuries to Billy Smith and the lack of any such injuries to the Accused are not inconsistent with a conclusion that it was Billy Smith who was wearing a seatbelt and therefore in the passenger seat, and the Accused, who was not wearing a seatbelt, therefore in the driver's seat. The Crown accepts that any one of these facts would not be enough to support a finding beyond reasonable doubt but that the totality of the evidence does support a finding to that level.

154. On behalf of the Accused, Mr Fren, in very carefully calibrated and powerful submissions, made the following points.

155. First, I ought be satisfied that, whilst unlikely, it is a reasonable possibility that a person wearing a seatbelt can be fully ejected from a motor vehicle involved in a rollover incident, such as occurred here. Second, whilst it is unlikely, it is reasonably possible, the Accused having been ejected from the passenger seat early in the rollover process, that Billy Smith, being the unrestrained driver, was then thrown around by the gravitational forces in the cabin of the ute, so as to eventually land sitting upright on the passenger seat.

156. Third, Mr Fren emphasises the dangers in drawing conclusions from the seatbelt injuries or lack thereof, and, whilst he accepts that evidence is relevant and not inconsistent with Billy Smith wearing a seatbelt and the Accused being unrestrained, submits that it should be given little weight. He makes the same submission about the blood findings.

157. Ultimately, Mr Fren's submission is that there is an explanation for what occurred which is reasonable and rational, and ought be sufficient to give rise to reasonable doubt so as to lead to the acquittal of his client. That explanation is that Billy Smith was the unrestrained driver, and the Accused was the restrained passenger. The Accused was ejected from the ute, notwithstanding the fact that he was wearing a seatbelt, early on in the rollover process, and Billy Smith was bounced around the ute so as to move from the drivers’ seat and end up in the passenger seat towards the end of the process.

Resolution

158. As attractive as it is, and whilst each of the two primary steps in the explanation identified by Mr Fren is a possibility (i.e. a seatbelt-restrained passenger being ejected and an unrestrained driver ending up in the passenger seat), each is, in my opinion, very unlikely, and the sum total of those two very unlikely events, combined with the totality of all the other evidence, is such that the end result is that I do not consider it to be a reasonable or rational explanation.

159. The expert evidence of Dr McIntosh, together with the application by me of what I think is some common sense or rational thinking based on my life experience, is that it is extremely unlikely that the seatbelt restrained passenger would have been ejected from the ute at all, let alone early in the rollover process. Not only is that unlikely on its own, the injuries to both Billy Smith and the Accused are in many ways inconsistent with that occurring. It is, on the other hand, close to inevitable that the un-seatbelt-restrained driver was ejected early in the process. Second, it is also close to certain that whoever the driver was at the start of the rollover process would have suffered significant cervical spine injuries if they had stayed in the ute for any period of time, but neither Billy Smith nor the Accused did. This is consistent with the driver being ejected very early in the rollover process. Third, it is possible but, in my judgement, again very unlikely that an unrestrained driver, the restrained passenger having already been ejected from the ute, would by processes of gravitational forces be thrown around the car so as to land sitting upright in the passenger seat without suffering injuries consistent with being thrown around the cabin. Finally, whilst I do not give very much weight to the seatbelt injury evidence or the lack of the Accused’s blood being found in the cabin, the simple fact is there are injuries on Billy Smith inconsistent with him not wearing a seatbelt. They do look like seatbelt-type injuries, which are not to be found on the Accused. For my own part, if I contemplate the Accused being ejected from the ute, notwithstanding he was wearing an operational seatbelt, I would expect there would be some injuries consistent with his body violently escaping the seatbelt, yet there were none.

160. If this was a civil case to be decided on the balance of probabilities, I would be very comfortably satisfied that the Accused was probably the driver, and Billy Smith was probably the passenger. Moreover, that balance of probabilities conclusion would not be anything like the level of 51%/49%. Rather, I would have considered it a very strong case.

161. However, neither probable nor likely is the question. The question is whether I am satisfied that the Accused was the driver to the very high standard of proof required by the criminal law, that being beyond reasonable doubt. In a circumstantial case such as this, where the conclusion must be reached by a process of inference, I must be able to exclude any other non-fanciful scenario consistent with a finding of not guilty to a level of satisfaction so as to consider such alternative scenario to be irrational and or unreasonable.

162. To do so, I must consider all of the primary facts about which I am satisfied but should ascribe to each of them such weight as I consider appropriate. In other words, the more unlikely a possibility might be, the less weight I should give that aspect. For example, I consider it extremely unlikely, close to but not quite to the level of implausible, that a seatbelt restrained passenger would have been thrown from the ute early in the rollover process. I also consider it very unlikely that an unrestrained driver, the restrained passenger having been ejected, would end up in the passenger seat without exhibiting injuries consistent with being thrown around the cabin.

163. As Dr McIntosh explained in his oral evidence, when one focuses on each primary fact in a vacuum, the possibility of an alternative reasonable explanation cannot be excluded. However, when I look at the totality of the evidence, this involves adding unlikelihoods on top of each other and quite quickly I get to the stage where, taken together, a series of plausible explanations become, in totality, insufficient to support a reasonable conclusion.

164. That is what I have determined in relation to the alternative explanation. For it to have occurred, a series of events ranging from extremely unlikely to very unlikely had to occur almost simultaneously.

165. The mechanics of what occurred here, the location of the two people after the crash, and their respective injuries satisfy me beyond reasonable doubt that the Accused was the unrestrained driver, Billy Smith was the restrained passenger, the Accused was ejected from the ute very early in the rollover process. Billy Smith remained because of his seatbelt in the passenger seat. That is why Billy Smith was in the passenger seat when the car stopped rolling and the Accused was some 50m away. I have taken the seatbelt injury evidence into account but have not given it much weight, but it needs to be said it is not inconsistent with the above finding, and I consider the lack of seatbelt injuries on the Accused to be unlikely if what happened was he was ejected from the ute, even though he was wearing a seatbelt. There is no evidence at all that I can identify that is inconsistent with this finding.

166. For those reasons, taking all of the primary facts I have identified together, I am satisfied beyond reasonable doubt that the Accused was driving the vehicle at the time the ute went out of control and crashed.

Orders

167. For those reasons:

168. I find the Accused Guilty on Count 1.

169. I note that, in those circumstances, Count 2 falls away.

170. I find the Accused Guilty on Count 3.

171. I find the Accused Guilty on Count 4.

**********