R v PIPER

Question of a View

The law regarding the holding of a view, in this case the viewing of a collision scene, is set out in section 53(1) Evidence Act, 1995: (1) A judge may, on application, order that a demonstration, experiment or inspection be held.
The emphasis on the words "on application" is mine. The Crown filed a Notice of Motion seeking that the court attend for a view at the scene of the impact, namely the Willawong Creek Bridge just outside of the village of Murringo on the road between Young and Boorowa. On 9 November 2020 I raised the Notice of Motion with the parties. The following appears at p 4:05ff of the transcript of the proceedings of the morning of 9 November 2020: "HIS HONOUR: And do you have a particular attitude about the Crown's application for a view Mr Kellaway? KELLAWAY: Well the accused consents to the application. HIS HONOUR: Right. I've yet to be persuaded of the absolute necessity of it Mr Kellaway, given the number of photographs I've got. KELLAWAY: I appreciate that your Honour. HIS HONOUR: But I'll hear the Crown. That's just a preliminary view; I'll certainly hear the Crown. But if you consent to it, well, it's probably a foregone conclusion then. KELLAWAY: Well your Honour-- HIS HONOUR: I gather Mr Kellaway you're a little ambivalent about the view? KELLAWAY: Well Mr Johnston did a view himself. I've been and done my own view and it helped me. But your Honour, I haven't had a great familiarity with those roads between Young and Boorowa. HIS HONOUR: Nor do I. Between Cootamundra and Dubbo I've got a very good knowledge of the road, but from Young to Boorowa no I don't. KELLAWAY: There's an enormous amount of photographic, map, scanning, evidence. HIS HONOUR: Yes. I want to hear the Crown as to why he says it's necessary Mr Kellaway. KELLAWAY: If your Honour pleases. HIS HONOUR: Now can we advance the matter any further until 12 o'clock? BAUMGARTEN: Not from the Crown's perspective your Honour. HIS HONOUR: I'll say 12 o'clock but just keep me posted on Mr Fox's availability will you please Mr Crown, Mr Kellaway? BAUMGARTEN: As the Court pleases. SHORT ADJOURNMENT"
Later that afternoon the Crown Prosecutor was able to appear remotely from his accommodation in Wagga Wagga. The following appears in the transcript at p 5:34 of 9 November 2020: "CROWN PROSECUTOR: Your Honour the first thing I understand that your Honour would like to be resolved is whether or not this trial requires a view. HIS HONOUR: Well you're rather insistent on it I gather Mr Crown? CROWN PROSECUTOR: Well I was your Honour. I've spoken with my learned friend this morning and perhaps there's a way around the need for an actual view. Clearly a major issue in this trial your Honour will be the capacity of the witness Ms Winbank to have observed what she stated she observed about the movement of the motorbikes and the utility on the roadway prior to the collision. I've attended the location myself last week and I can indicate from my perspective that it certainly was of great assistance. However, there are some photographs of Senior Constable Wright that were taken in respect of this issue, and they are available and they do provide some view. But speaking with my friend this morning there is also a walkthrough video that was conducted with the witness Ms Winbank by Detective Lake. I was not sure as to whether or not that video was admissible in the form it was because it was a video of the witness Winbank stating things not in a statement form. But I've understood from my learned friend this morning that he's quite happy for that video to be played in its entirety, including the audio track. HIS HONOUR: Is that so Mr Kellaway? KELLAWAY: Yes, thank your Honour. HIS HONOUR: All right. Well does that-- CROWN PROSECUTOR: That being the case it may well be that a view will not add a great deal more than what your Honour can glean from the photographs of Wright and that video. HIS HONOUR: It seems to me Mr Crown it would be a day because we have to drive to - it's Wagga to Cootamundra to Young and then to the bridge, and then probably an hour or so at the bridge, and then the return trip. It's a day, in effect, isn't it? CROWN PROSECUTOR: Yes it would, it'd be an entire day, with the added problem of course of having to stop the traffic on that road, which would be a problem. HIS HONOUR: Yes. CROWN PROSECUTOR: I mean it could be done but it would be a nuisance for the good citizens of that district,-- HIS HONOUR: You'd also-- CROWN PROSECUTOR: --but I'm in your Honour's hands as to whether or not your Honour feels a view would be necessary. HIS HONOUR: I'll make a determination of - my inclination is no, I won't go on a view Mr Crown, Mr Kellaway, but I will watch this video and if I still think, or one of the parties think it's not clear, I'll reconsider the matter. But the answer is I will not go on a view for the time being. Well my answer for the time being is I won't go on that view, Mr Crown. CROWN PROSECUTOR: Thank your Honour. HIS HONOUR: It seems to me there was an abundance of photographs, there's the plan, and that walkthrough video. I'll wait and see. If the situation changes after I've seen that, well I'll say something to you Mr Crown and Mr Kellaway. Now what can we do today? What can we do now?"
As indicated on 9 November 2020 my inclination was to say no to a view, but clearly it was left open to the Crown to renew the application for a view. A thorough reading of the trial transcript indicates that a view was never mentioned again.
In an email to which the Crown Prosecutor and his instructing solicitor were "copied in" of 8 April 2021 Mr Kellaway, counsel for the accused correctly observed that "No party has made any application for leave to call additional evidence". This is a reference to the provisions of s 168(2) of the Criminal Procedure Act which is extracted above at [23] of these reasons. In order for there to be any fresh evidence admitted at a hearing of matters attaching to a s 166 Certificate, including a view an application has to be made by one of the parties.
On 9 April 2021 towards the end of the reasons I gave I indicated that I would be "somewhat sympathetic" to an application for a view to the scene, particularly given that it was very much the wishes of the relatives of the deceased persons that that occur. The Crown Prosecutor's instructing solicitor was physically present on 9 April 2021 when I gave those reasons. On 7 May 2021 it transpired that the Crown Prosecutor had not read those reasons. On 7 May 2021 time was given to the Crown for him to read those reasons and discuss those reasons with the families of the late Messrs Keatley and Grinter.
When court resumed the Crown Prosecutor (somewhat hesitantly to my observations) made application to call fresh evidence by way of the Court attending the scene of the impact for the purposes of a view. On 7 May 2021 the Crown Prosecutor accepted that his application "knowing that it's on fairly uncertain ground" (t'script 7/5/21 p. 10:17). That application was opposed by Mr Kellaway. Mr Kellaway (p 10:28 07/05/21) put on record an email sent to my Associate by the Crown on 14 April 2021 at 3.39pm, namely: "Dear Madam Associate". [And the topic is "Piper, Crown Position"] I confirm that the parties in Piper have held discussions and the current position is that the matter can be concluded in one day, on 7 May, and that a view is not appropriate. In order for there to be a view the Crown would need to seek leave under s 168 to tender fresh evidence, which a view is pursuant to s 53 of the Act" [It should read Evidence Act.] "The defence have indicated that would oppose that leave being granted. Given that the issue of the view was raised and determined prior to the trial there is nothing additional we can rely upon to now justify a view. In fact because the s 166 proceedings themselves will be quite short because of there being no need to recall witnesses and written submissions already being made then taking a whole day to conduct a view would not meet the test under s 53C in our opinion. We understand the families are keen for a view to be conducted, however that is not a basis for now seeking leave to conduct a view. As written submissions will have been filed it is understood that the matter can be concluded expeditiously on 7 May. Mr Fox will attend in person".
It may have been helpful had the Crown read the transcript of what I had said on 9 April 2021, or for that matter what I had said about a view been communicated to the Crown Prosecutor by his instructing solicitor who was physically in court at 2pm on 9 April 2021.
A little earlier on 7 May 2021 in an exchange between the Crown Prosecutor and me, the following was said (p 5:20): "HIS HONOUR: Well I don't think I actually made a decision as such. I know there was a Notice of Motion filed by the Crown, it was mentioned on the first day of the trial, 9 November. I don't have a transcript of what happened that day and I'm only going from memory, but…my memory is that I said "no" but I left it open to the Crown to renew the application. Now I remember actually discussing the matter with my associate during the early part of that week, wondering, or contemplating what would be the better day if we were going to go on a view because it would entail some organisation and in fact would have taken a day essentially by the time we travelled from Wagga to Young and then to Murringo and then spent some time at the bridge and then return. CROWN PROSECUTOR: I think we even discussed that in Court if I recall your Honour there was some agreement between the parties that any view would take the whole day. HIS HONOUR: Yes. I don't ever recall giving reasons for a view. My initial reaction was no, essentially because not in any particular order there were so many photographs and also the logistical issues. And also my experiences of views is that they are generally of very little assistance. I was never actually asked to formally rule on the view Mr Crown. CROWN PROSECUTOR: All I can recall Your Honour is that both parties had sought it and--- HIS HONOUR: No, you sought it, the Crown - Mr Kellaway didn't oppose it. CROWN PROSECUTOR: I think that's right, yes. He didn't oppose it. HIS HONOUR: But I was never actually asked for reasons Mr Crown and I know I wasn't because there is no judgment prepared and in fact there was a daily transcript prepared and if I give reasons on some type of application there is a separate transcript prepared by RSB. There is no transcript on the issue of a view."
I also raised this issue with Mr Kellaway after I had heard the Crown. Commencing at p 11:12: "HIS HONOUR: Mr Kellaway what is your memory of what happened on 9 November so far as the application for a view? My memory is, and I am only going from memory, and in that I do not have a transcript of what happened on 9 May [sic but read November] but my memory is that the Crown Prosecutor could not attend personally because of an issue with COVID test. We commenced the matter with the Crown Prosecutor appearing remotely from his accommodation in Wagga Wagga. Your client was arraigned, a plea of not guilty was entered. The application for trial by judge alone, to which the Crown consented some time before 9 November became an exhibit in the trial and I think it - my memory is it was me that mentioned the Crown's notice of motion. I also recall calling on you and asking your attitude about the view. You didn't oppose it. My reaction was initially to say no, but I thought, and my memory is I left it up in the air so to speak, if I might use that colloquial expression to be to be brought up later in the week and I am quite firm that I was never actually asked to rule on that notice of motion. Is your memory any different Mr Kellaway? KELLAWAY: No your Honour. Can I just--- HIS HONOUR: By all means Mr Kellaway. KELLAWAY: My instructing solicitor agrees with your Honour as well. HIS HONOUR: I concede I certainly said my initial reaction was no, but that was not a - I was never actually formally asked to rule on that notice of motion. KELLAWAY: Well the application was not pressed."
Mr Kellaway is entirely correct with that last observation as the transcript of pages 4 to 6 inclusive of 9 November 2020 indicates.
The Crown Prosecutor at p 10:17 on 7 May 2021 said, "Only that I make the application, but I make it knowing that it's on fairly uncertain ground".
On 7 May 2021 I gave an outline of my reasons for refusing the application for a view. The issue of the timing of that application and the lack of notice to the accused's legal representatives has already been dealt with.
Section 54(3) of the Evidence Act, i.e. the section of that Act dealing with views provides: (3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following - (a) whether the parties will be present, (b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence, (c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time, (d) in the case of a demonstration - the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated, (e) in the case of an inspection - the extent to which the place or thing to be inspected has materially altered.
If a view had been held the parties would have been present. Subparagraph (d) of s 54 is not relevant and there was evidence that the applicable sign-posted speed limit had been reducied to 80 km/h but there was no physical change to the bridge or the approaches to the bridge. The real issues I had with holding a view were the provisions of subparagraphs (b) and (c) of s 54(3).
Given the amount of photographic material including numerous still photographs, footage taken from a drone and drive through videos I am not of the opinion that a view would have materially assisted the court in the resolution of the matters. I include in that the offences contrary to s 52A dealt with at the trial and the matters presently under consideration. The volume of photographic and video type evidence available is readily ascertained by reference to the exhibit list at trial. The photographic and video evidence of the scene is included in the following exhibits: Exhibit Number Brief Descriptions B Photographs with the Statement of Nicole Brown (police crime scene examiner) C Scale plan D Aerial photographs E Video G "Walk through video" and transcript FF Photographs of land cruiser HH Photographs JJ Large Aerial map LL Disc containing aerial footage MM In car video NN 36 photographs (stills from MM) OO 52 photographs - stills from video footage Exhibit 1 Bundle of photographs 7 Report of Mr Grant Johnston (defence expert) which included numerous photographs

The charges of Negligent Driving Occasioning Death (2 counts); Occasioning Grievous Bodily Harm (1 count)

The conduct to which the charges presently under consideration is contrary to s 117 of the Road Transport Act, 2013, which relevantly provides: 117 Negligent, furious or reckless driving (1) A person must not drive a motor vehicle on a road negligently. Maximum penalty - (a) if the driving occasions death - 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence), or (b) if the driving occasions grievous bodily harm - 20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence), or (c) if the driving does not occasion death or grievous bodily harm - 10 penalty units.
Section 117(1) of the Act creates the offence and subparagraphs (a) and (b) provide for the penalty if death or grievous bodily harm is occasioned as a result of the negligent driving.
The test for negligent driving was set out by Johnson J in Director of Public Prosecutions v Yeo (2008) 188 A Crim R 82; [2008] NSWCCA 953 at [27]: "Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances. The distinction which may be drawn between driving negligently, driving in a manner dangerous to the public and driving of a kind which justifies a conviction for manslaughter is essentially a distinction in the degree of negligence appropriate to the offence, being a distinction in the degree of departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances: R v Buttsworth at 672."
His Honour went on to say at [29]: "The question is essentially whether the driver was exercising that degree of care which the ordinary prudent driver would exercise in all the circumstances, including the circumstances as set out in s.42(3): Simpson v Peat [1952] 2 QB 24."
A little later his Honour observed at [32]: "It is clear that negligent driving is to be regarded as something less serious than reckless or furious driving or driving at a speed or in a manner dangerous to the public (all offences contained in s.42(2) of the Act): Clout v Hutchinson at 35. In Ex parte Graham; re Dowling (1968) 88 WN(Pt1)(NSW) 270, Asprey JA observed at 282: "Like the tort of negligence, 'negligent driving' is difficult to reduce to a set of rules. It covers a multitude of sins. It relates to the circumstances of the occasion. What would constitute the offence in one instance would pass without censure in another."
The part of the judgment of Johnson J in Director of Public Prosecutions v Yeo is extracted by Hoeben CJ at CL (Fullerton & Hulme JJ agreeing, each with brief additional reasons) in Prineas v R [2018] NSWCCA 221 at [46]. It would seem that there is no reason to doubt the test as stated by Johnson J is the correct test to apply in determining whether a particular piece of driving is negligent within the meaning of s 117 of the Road Transport Act.
It seems to me that before I could return a verdict of guilty to any of the three charges the Crown would need to prove to my satisfaction beyond reasonable doubt the following essential elements or ingredients: 1. The accused drove a motor vehicle; 2. On a road or road related area; and 3. The accused drove that vehicle negligently; and 4. In the case of sequence 1 the death of Mr Keatley was occasioned, in the case of sequence 2 the death of Mr Grinter was occasioned and in the case of sequence 3, grievous bodily harm was occasioned to Ms Julianne Keatley.
I have dealt with the concept of negligence at paragraphs [49]-[51] above.
The words beyond reasonable doubt are ordinary English words and they are given their ordinary English meaning. The collective legal wisdom developed over the centuries is that further elaboration by trial judges is neither necessary nor desirable. Suspicion, even the gravest of suspicion, cannot amount to proof beyond reasonable doubt. The onus and burden of proof remains on the Crown from beginning to end. The accused bears no onus. It is not for the accused to establish that he is not guilty it is for the Crown to prove beyond reasonable doubt that he is guilty.
Further, as I observed in my reasons at the trial (p 6 reasons) it is vitally important that I clearly understand than an accused must be found not guilty if his guilt has not been established to my satisfaction beyond reasonable doubt. It follows from this of course that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient if I have a reasonable doubt in respect to the matter the accused is entitled to the benefit of that doubt and I must find him not guilty.
Conformably with the decision of the High Court in Pell v The Queen [2020] HCA 12 I remind myself that beyond reasonable doubt is the highest standard on proof known to the law. A verdict of not guilty simply means that the Crown was not able to satisfy that very high standard of proof.
Ordinarily with multiple charges it would be necessary to give myself a warning conformably with KRM v The Queen (2001) 206 CLR 22. Clearly there will have to be separate verdicts in respect of each count. However, as was the situation with the trial, given the issues to be determined, the same verdict will be common to each of the three charges.
I remind myself about the drawing of inferences. I remind myself of the example relating to the telephone call to a friend from the Trials Bench Book that is routinely given to juries. Inferences may be valid or invalid, correct or incorrect. In a matter where the Crown is required to prove its case beyond reasonable doubt I must not draw any inference from the direct evidence unless it is the only rational inference available in the circumstances.
As the tribunal of fact I am not obliged to accept the whole of the evidence of any one witness. I may accept part and reject part of the same witness' evidence.
It will be necessary for me to review the evidence given at the trial. This will necessarily repeat some of what I said in my reasons given for the verdicts of not guilty on 16 November 2020.
For the reasons I gave on 16 November 2020 in the trial (see pp 10 to 12 inclusive) I am satisfied beyond reasonable doubt that the accused was the driver of the Toyota Utility AK-19-HY, that there was an impact between that vehicle and a Honda motor cycle being ridden by the late Mr Keatley on which Ms Julianne Keatley was a pillion passenger, that there was an impact between the accused's vehicle and a Ducati motorcycle being ridden by the late Mr Grinter and further that the death of Messrs Keatley and Grinter were occasioned as a result of those impacts, as was the grievous bodily harm sustained by Ms Keatley.
I have already set out the time, date and place of the impacts and the persons involved. The late Mr Keatley and Julianne Keatley left their home at Ungarie at about 11am on 1 March 2019. Julianne Keatley was the pillion passenger. She and her husband were able to communicate with each other because of devices fitted to their helmets. They were travelling to a motor cycle rally at Kiama on the south coast. They met the late Mr Grinter and Mr Phillip Rogan at the McDonald's restaurant at Young. After having some refreshments they commenced the journey to Kiama which took them to the village of Murringo and then on towards the Willawong Creek Bridge.
The accused had been working on a property with a Mr Karl Sharpe. The accused and Mr Sharpe did work and as at the date of trial continued to work for Rowan Madge, a fencing contractor in Forbes. The statement Mr Madge made to police became exhibit P in the trial. Mr Madge received a call from the accused at approximately 1.55pm on 1 March 2019 in which he told Mr Madge that he was leaving the property on which he was working and heading home.
The next time Mr Madge spoke to the accused was at 2.10pm on 1 March 2019 where the accused said (see paragraph 7 of the statement; trial t'script 112:29): "Darryn said, 'I've been in an accident, I have come down to the hill onto the bridge and the motorcycle was on my side of the road, I swerved to miss them and rolled the vehicle. Basically Darryn said, it was two people dead and one person injured'"
Ms Julianne Keatley gave evidence, commencing p 19:07. She describes that she had a memory of overtaking one car: "We were riding along the road and heading up. It was a lovely day for a ride, being the passenger I was just taking in all the scenery, then coming up further I looked over to my husband's shoulder to see this ute coming around the bend. I remember saying 'he is so far over our side of the road', and I just remember seeing like a snorkel and then very close to that ute in my memory. It comes at me every day and I recall hearing my husband's calm voice saying 'there's nowhere to go' before the collision and finding myself on the ground looking up at the sky."
She said she could not recall the actual impact. Ms Keatley then went on to say (p 19:19) "I - when I saw the ute it was on the same side of the road as us. We were on the left hand side coming around this sweeping bend. When I looked over to my husband's shoulder to see this ute coming the other way, it was on the same side of the road as us and I just remember seeing this snorkel, this blackness, and then we had nowhere to go and I believe we had nowhere to go - my husband said we had nowhere to go and we had this collision on the bridge."
Ms Keatley maintained that she and her husband were on the correct side of the road. Her evidence on this issue is found commencing at p 20:19: "Q: Do you remember the positon of the bike was on the road as you rounded the bend leading on to the bridge? A: We were positioned on the left hand side of the road Q: Can you say where you were in relation to the centre line? A: I believe that we were on the left hand side of the road. How close we were to the, the centre line, I really couldn't tell you Q: But you were within your lane A: Yes."
She was then asked about the overtaking manoeuvre which occurred just after leaving the village of Murringo. She said (p 20:42) that they went back to the left hand side of the road after that manoeuvre.
At p 21:30 Ms Keatley was asked, "Can you describe how the ute was moving in the lane, what it was doing in the lane before impact?" She replied, "Just coming around the bend on the wrong side of the road coming at us, yeah". She went on to say (p 21:18) that when she first saw the utility it was approaching the bridge. She then said the utility was in "our left hand side, so his right hand side", i.e. travelling in the same lane that they were and the utility remained in that lane.
Under cross examination Ms Keatley said (p 25:37) that she saw the ute before the bridge. At p 27:43 the following appears in the transcript: "Q: I wanted to suggest to you Mrs Keatley that given you were being that kind of travel as a tourist up until the point where you apprehend danger that for that reason alone that you wouldn't be able to say with certainty the path that your motor cycle took on the bend as it came into the bridge, Do you understand the question? A; When I - yes. When I sw the ute first when I first saw that ute we were on our left-hand side of the road."
Mr Phillip Rogan was part of the group of motor cyclists and he was following Mr and Mrs Keatley and Mr Grinter. He recalls they left Young about 1.30 (pm) on 1 March 2019. He recalls the overtaking manoeuvre conducted by the riders in front of him (p 34). He recalls that after the overtaking manoeuvre the motor cycles in front of him returned to their own side of the road (p 35:20). The next thing he remembers was "a ute coming at me like that". He went on to say that the ute was "virtually off the bridge, it was a Toyota Land Cruiser, it had a bit of a crate on the back of it, and it was about 45 degrees like that and the wheels up in the air". He went on to explain that the wheels of the ute were up in the air and the cab was facing towards him.
Mr Kyle Sharpe who had been working with the accused also gave evidence at the trial. He was travelling in a separate vehicle and was about 100 metres in front of the accused. He had driven through the scene of the impacts a number of times leading up to 1 March 2019 as had the accused. He left the property where they were working about 2pm. Mr Sharpe believes he was about 100 metres the Young side of the bridge when he heard a noise. As a result of hearing that noise he looked in his rear view mirror and realised that the land cruiser was rolling (see generally p 84). He believes he saw one or two rolls of the vehicle. He pulled over to the side of the road and called triple-0 and then drove back to the bridge. He saw two people helping the accused out of the vehicle. He stayed with the accused until the accused was air lifted to Canberra.
Sometime after the impact Mr Sharpe asked the accused what had happened (see p 86:36-50). Mr Sharpe said (p 86:46), "Just once everything had settled down I just asked what had happened and he said he saw the motor bike come onto his correct side of the road. He's tried to evade or miss that motorbike and then he couldn't remember what happened after that".
Ms Vicki Windebank was in a vehicle travelling in the same direction as the motor cycles, i.e. away from Murringo travelling towards Boorowa. It was her vehicle that the motor cycles overtook shortly before getting to the bridge where the impacts occurred.
In my reasons in the trial I observed of Ms Windebank (p 23 reasons): "She not only stopped, assisted at the scene, helped extricate the accused from the vehicle in which he had been driving, remained at the scene, gave an account to police, did a walk-thru video recording with the police, and, of course, gave evidence. She made a number of corrections to her statement most of which were matters of little consequence, but, in my view, the fact that she was anxious to make those corrections speaks volumes of her honesty as a witness."
At p 98:36ff in the trial transcript the following appears: "Q. Now you were referring to some portions of paragraph 15 that you now have a different recollection about; is there any other portions of that statement that you wish to correct? A. Yes in number 9 where it says "Cut the corner as they entered onto the bridge, then they both cut the corner. It was only one of them and that was the second rider not the first. They were right on the line. Q. So the second rider cut the corner? A Yes. Q. But the first rider was on the line? A. Yes. Q. And when you say cut the corner, the second rider how far across do you say he cut the corner? A. Very little, very little." Q: Is there any other portions of the statement that you wished to clarify? A: Where it says in number 11 (paragraph) I believe the driver of the utility has seen the motorcycle in his lane, well, I don't see that because I got - alls (as said) I seen was him going back on to the white line, I didn't see him in his lane
Ms Windebank's police statement was admitted into evidence as exhibit O in the trial. After giving the account of being overtaken by the motorcyclists she says in that statement commencing paragraphs 9 to 13: "9. I noticed that both motorcycles cut the corner as they entered onto the bridge. It appears as if they motor cycles were following each other. They both cut the corner as they entered the bridge. 10. I saw a white four-wheel drive utility coming in the opposite direction. This driver was on his side of the road driving safely. 11. I believe that the driver of the utility has seen the motor cycles in his lane and swerved to his left in an attempt to avoid them as he had nowhere to go. 12. I saw his swerve a second time to his left again. This is when I believe the utility has clipped the bridge which caused him to impact with the bridge. 13. I saw the utility flip around three times and eventually land on the roof in the opposite lane."
At p 104:37 Ms Windebank was asked in evidence in chief, "But your evidence today is that the first bike in this group of bikes was the one that hugged the centre line. She replied, "Yeah the first bike was on the white line when I seen them approaching the bridge."
Ms Windebank had her grandchildren in the car with her and as I observed in my reasons at trial it is hardly surprising that she was concentrating on them. She did not actually see the impact with the motorcycle being ridden by the late Mr Keatley. She stopped and spoke to the accused at the scene. She gives evidence about that at p 103:25ff: "Q. Did you say anything to him? A. I just told him to calm down, it was an accident. He spoke to me after that. We got back into the car after that. Q. What did he say on that occasion? A. I was in shock as I sat in the car, and he was talking. He was actually talking to another person, a male and female, but I asked him to sit back into the car and he was talking but I wasn't listening and I was trying to understand what had just happened. Then he got really loud and he said I swerved' and I said I seen you swerve, it was an accident. It wasn't your fault, you've got to calm down'. And I just sat there, it was silence and then I got out of the car."
Ms Windebank also confirmed at p 105:25 that it all happened very quickly.
Under cross-examination at p 107:04 Mr Kellaway for the accused asked Ms Windebank, "Can you tell us why you always slow down for the bridge?" She replied, "'Because there's many times traffic have crossed that line where I've had to go over to the side and give myself room. So many people cross over that white line and it's just a dangerous bridge."
Three brothers Matthew Mears, Jason Mears and Dale Mears who were travelling to a funeral at Boorowa also gave evidence. They saw parts of the events and stopped and assisted. They all maintain that they heard the accused say something about falling asleep. Each of them give a slightly different version. Dale Mears said that he heard the accused say, "I fucking fell asleep".
Matthew and Jason Mears gave an account of the accused saying that he may have fallen asleep whereas Dale Mears has the accused making a far more definite statement. As I observed (p 27 reasons) in my reasons at the trial the accused being drowsy, sleepy or somnolent formed no part of the Crown case on the issue of the accused driving in a manner dangerous to the public. Indeed, had the trial been a jury trial there would have been a very viable argument (which in my view would have inevitably have succeeded) that the evidence the Mears brothers gave about what they heard the accused say about falling asleep be excluded on the basis that it was not relevant and/or it was unfairly prejudicial. The evidence of the Mears brothers does not assist at all in the resolution of the matter.
Mr Daniel Smith, a vehicle examiner gave evidence that he examined the vehicles and he found no mechanical defect in any of the vehicles involved that would have contributed to the impacts.
The accused did not give evidence at the trial and he did not give evidence at the hearing on 7 May 2021. Although the directions were given at trial on this aspect, for more abundant caution I will repeat those directions which are at p 6ff of my reasons:
The accused did not give evidence. An accused is entitled to give or call evidence in respect of any aspect of the Crown's case, however an accused is equally entitled to put the Crown to proof and require the Crown to prove his or her guilt beyond reasonable doubt. As the tribunal of fact I must draw no inference adverse to the accused because he did not give evidence.
The onus and burden of proof is on the Crown from beginning to end to the criminal standard of beyond reasonable doubt. There may be good reasons why an accused would not give evidence and as the tribunal of fact I must not speculate on what they may be. The absence of evidence from the accused cannot be used as a makeweight in determining whether the Crown has proved its case beyond reasonable doubt, nor can it be used to plug or fill gaps I perceive in the evidence.
At the risk of repetition, no inference adverse to the accused must be drawn because he did not give evidence and the onus and burden of proof is on the Crown from beginning to end.
In this matter however, the accused did not remain silent in the course of the investigation. He gave a record of interview which unusually is in the form of a typed record of interview rather than electronically recorded.
Given that the matter arises from an impact between motor vehicles, one of which was being driven by the accused, the accused was obliged by reason of the Motor Traffic Legislation to give some version to investigating police. He was not obliged however to participate in a record of interview.
If as the tribunal of fact I accept the version given by the accused in that record of interview he is entitled to be found not guilty as the Crown would have failed to prove something which it is required to prove before a verdict of guilty can be returned. However, as the tribunal of fact it may be the case that although I do not positively or affirmatively accept the version of the accused it may nevertheless give rise to me entertaining a reasonable doubt about the guilt of the accused. That is to say I do not have to positively or affirmatively accept the version of the accused before I entertain a reasonable doubt.
Further, even if I rejected the version of the accused, I would need to be satisfied beyond reasonable doubt on the evidence of the Crown case alone before I could return verdicts of guilty.
For more abundant caution I direct myself conformably with the decision of the High Court of Australia in Mule v The Queen (2005) 156 ACR 203, [2005] HCA 49, that as the tribunal of fact I am entitled to give the version of the accused less weight as the version is not on oath or affirmation.
Exhibit H at the trial is a transcript of the record of interview conducted by police with the accused. Curiously it was the wish of the accused to give a version which was typed rather than be interviewed electronically. At p 28 of my reasons at trial I set out the version the accused gave to police. That version was: Question 11, "Q. How do you say this collision occurred? A. I was working roughly 15 kilometres on the Young side of Boorowa. I was heading through Young on the way back to Forbes. My work mate was in a work Rodeo in front of me and his name was Kyle Sharpe. I remember the bend before the bridge, a right hand bend, and I could see Kyle going across the bridge at the time. As I was approaching the bridge I could see the left side of the bridge and I saw the motorcycle approaching. I saw that he was on the wrong side of the road. I started braking to slow down. I have driven the road for the last weeks and the bridge is shit which I'm aware of the conditions of the bridge. When I was getting closer to the bridge and he was entering the bridge and I noticed he was still on my side of the road I started braking even more as I thought he was not going to go back to his side of the road. At the last minute I do not know if I hit, or swerved to the right as I panicked and then from there I don't know what happened but I remember colliding with the motorbike. I do remember turning left hard at all costs to avoid him. I remember he looked really panicking and he was out of control and skidding. As I hit him I realised that there was another bike further up in the distance but from there I have lost memory. I can only remember hitting one motorbike until I got out of the vehicle. I remember being flung around side-to-side in the car. I think I blacked out and woke up at some time. I remember my head pounding and my head - fingers was bleeding. I thought I was dying. I remember a lady at my window and she broke down crying and said Thank God you are alive'. I remember turning the ute off and telling her to get me out of the vehicle as I needed to help the other person. At the time I was only aware of one person was injured. The lady asked me if I had a sore neck or back. I said I was fine. I think the lady reached in to undo my belt as I could not reach for it. I remember getting out of the vehicle, walking towards the motorbike and I saw a person over the railing of the bridge. The person looked deceased. I heard some screaming. The lady helped me back to an amount of dirt behind where my ute was. The lady then put me into her car until the ambulance arrived. The lady had two children in the back and I didn't want to sit there. I remember the ambulance arriving. A male told me he was in charge of the situation and I told him to go and look after the other people. I went to Canberra Hospital. When I was sitting in the car the lady said I saw them on the wrong side of the road and I will tell them that'."
The lady to whom the accused is referring is obviously Ms Windebank.
That leaves the review of the two expert witnesses, i.e. Mr Simon Parker for the Crown and Mr Grant Johnston for the accused. Mr Parker did not physically attend the scene whereas Mr Johnston did. Mr Parker had access to a 3D laser model created by Senior Constable Grady from the Forensic Imaging Section.
For more abundant caution I will warn myself as I did in the reasons given in the trial on 16 November 2020 as to expert witnesses, namely: "An expert witness is a person who has specialised knowledge based on that person's training, study or experience. Unlike other witnesses, a witness with such a specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is what they saw or heard, and are not permitted to express their opinions. Appropriately no issue is taken with the expertise of any of the expert witnesses. The weight of any expert opinion is dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. The weight of the expert opinion is also dependent upon 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 their 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' expert knowledge. I note that in this matter there was broad agreement between the experts but there were some differences of opinion on some aspects. I will deal with these issues in the course of dealing with the facts and the evidence. In the present case in relation to the particular issues there is some conflict between the expert witnesses. It is not a matter of simply choosing between their evidence as a matter of simple preference. In resolving the conflict between the evidence of the expert witnesses I must always keep in mind that it is for the Crown to prove its case beyond reasonable doubt. It is for me to decide whose evidence and whose opinion I accept in whole or in part, and whose evidence I reject altogether. I should keep in mind that in reaching a verdict I must consider all the evidence. In resolving any conflict in the expert evidence I am entitled to consider that particular evidence in the context of all the other evidence that is before me."
Senior Constable Wright was called and attempted to show the 3D laser image to the court. There was an issue with the software or computing power of the equipment available to the court. It was my understanding that what the court saw was not (in that it was not as comprehensive) what Mr Parker was able to see.
At p 165:37 I asked Constable Wright, "Just how was this interactive video created? Who created it when, where, how please?" The reply was: "So the 3D model is created by Senior Constable Grady from the forensic imaging section and it's created via a laser, a 3D laser scanner, so he attended the scene, took a number of laser scans through the scene which takes - each scan takes millions and millions of laser measurements of its surroundings. The laser measurements are then placed into the software and it generates a 3D model of the environment with the accuracy of the laser measurements".
I simply do not know what Mr Parker was able to see. However, what I was able to see with what Constable Wright demonstrated would have been of very little assistance. The scene presented in black and white in silhouette.
He was asked, at p 175 line 20: "Q. From that point were you able to - is that the point - that's in photo 3 in exhibit CC - you were able to determine which side of the carriageway the vehicles were on when they approached the bridge and crossed bridge?" There was an objection. Line 40: "Q. Where do you say you lose sight of the surface of the roadway to determine which side the car is on? A. So I certainly couldn't see what side of the roadway they were on on the bridge and then from this position heading away from this position I wasn't able to see the side of the line markings they were on as they progressed past the small crest of the roadway, as I described in my statement."
And p 177 line 15, he was asked a question as to what he could ascertain from the location depicted in photograph 5, that is photograph in exhibit CC, a series of six photographs: "Q. Were you able to determine which side of the carriageway the vehicles were travelling on? A. No."
As I observed (p 30 reasons) one issue that occurred to me is that there is no vehicle shown in photograph 5. Further as I went on to say: "It occurs to me that the issue with photograph 5 is that there is no vehicle shown on the roadway. It may well be that one cannot see, would not be able to determine where the wheels were in relation to the centreline but using the other aspects of the scene including, as I said to counsel, the sides of the bridge, the railings and the like, it seems to me that one would be able to get at least a good general impression of the location of the vehicle on the roadway at the time."
Simon Parker was formally a crime scene officer at the Collision Reconstruction Unit with the New South Wales Police Force. He is now a consulting scientist for a small firm. No issue was taken with the qualifications of Mr Parker. At paragraph 11 at p 6 of exhibit N, i.e. Simon Parker's statement the following appears: "This collision, based on the physical evidence, can only occur in one way. In the following photograph I've highlighted the nearside tyre marking deposited by the Landcruiser on the bridge surface leading into the collision with the red arrow. This tyre marking can be followed to the area where the Landcruiser begins to rotate on the road surface prior to rolling over, and is indicated by the blue arrow pointing to the nearside tyre markings. The corresponding driver's side front tyre is seen to create a tyre marking on the bridge surface at the point of impact with the Honda motorcycle at the orange arrow. The second motorcycle impact is not clear in this photograph but occurs at the Landcruiser is rolling across the southbound lane. Both impacts, according to the physical evidence, occur wholly within the southbound lane of travel. This photo also shows the Landcruiser to be wholly on the incorrect side of the roadway for its direction of travel and the initial deposition of the first tyre marking. Both of these motorcycles are fitted with anti-lock braking assistance, ABS, reducing the likelihood of them creating tyre markings on the road surface."
At paragraph 14 he says: "From my specialised knowledge training and qualifications, based wholly on the information available, it is my opinion the Toyota Landcruiser registration AK 19 HY, was on the incorrect side of the roadway of its direction of travel at the time of impact with the Honda motorcycle and the Ducati motorcycle, on Murringo Road, Murringo on 1 March 2019."
In examination in chief of Mr Parker, commencing at p 48:26 the following appears: "Q. It's fair to say the Landcruiser has come across the bridge at an angle? A. Yes. Q. Commencing with the left hand wheel totally on the incorrect side of the road, so the left hand wheel being in the left hand carriageway? A. Yes. Q. Your conclusion from your experience, and from the material you've inspected, is the trailer utility was on the incorrect side of the roadway for its direction of travel at the time of the impact with the Honda motorcycle? A. Yes that is correct. Q. Where do you put the point of impact with the Honda motorcycle? A. The point of impact I believe is the location of that Honda tyre mark on the page 7 of my report."
Later at p 58:30ff the following appears: "Q. From your expertise are you able to say whether or not it's possible to determine which side of the centre line travelling south would be? A. I couldn't determine. Q. You can't determine? A. From that, those photographs, I wouldn't be able to determine which side of the road an oncoming vehicle was on. I'd be able to recognise an oncoming vehicle but I wouldn't be able to determine which lane though."
And then he gave an opinion at the bottom of the page: "I don't believe the accused would be able to determine which side of the road for an oncoming vehicle, therefore I don't believe that statement is correct."
Essentially Mr Parker's evidence is that the accused would simply not have been able to ascertain which side of the road on which the oncoming motorcycles were travelling. He maintained that position under cross-examination. In that regard I note the evidence at p 74:44ff: "Q. Given you're allowing for the reasonable possibility of a lower reaction time and a lower time to navigate what you call a steering manoeuvre, and your acceptance that a reduction in time means a reduction in distance,-- A. Yes. Q. --would you now allow for the reasonable possibility the accused was in fact in a position to be able to see the motorcycles in a way Grant Johnston had regard to in his report? A. I don't know. In terms of my viewing of the evidence I don't believe there's enough visibility past the bridge. Q. Do you think Mr Johnston might have one-up on you in this regard given that he actually went to the bridge himself? A. I don't know if it'd make a lot of difference, I obviously viewed the 3 dimensional data."
Mr Parker did not attend the scene. He did not have access to nor did he seek to have access to any of the witness accounts or the drive through video footage. He maintained a number of times (see for e.g. pp 62-3) that he did not believe that attending the scene would have assisted. The following exchange occurred under cross-examination at p 66:30: "Q: At any time did you make any request for any other information other than the photographs and the laser scan taken a week after the collision? A: In terms of a collision like this, the only evidence required for an interpretation of the physical evidence is the physical evidence."
I was critical of Mr Parker at the trial and I do not in any way resile from those criticisms. Making an assessment of the witnesses is part of the process engaged in by judicial officers in making a decision. If there is criticism of a particular witness that does not of itself indicate that there is bias against the party for whom that witness gave evidence. At trial and in the matters presently under consideration the expert evidence is a very important aspect of the case. The experts do not agree on all matters. It is necessary therefore to make a determination as to which expert evidence is to be preferred when there is conflict between the experts.
Mr Parker insisted that all he needed was the 3D laser image. I utterly reject the suggestion made in the course of re-examination that that image was as good as being at the scene. One need only view the exhibit to come to that conclusion.
As I observed in my reasons at the trial (p 35) Mr Parker presented as being glib and dogmatic. He was dogged in his insistence that he would not have been assisted by visiting the scene. He was adamant that he would not have been assisted by any of the eye-witness accounts or the drive through video footage. Put simply he was an unimpressive expert witness. That conclusion is drawn in part from the manner in which he answered questions. That conclusion is assisted by the fact he did not attend the scene, saw no benefit out of considering eye-witness accounts, and did not access the drive-through video footage. The answers he gave were often long and rambling and on a number of occasions unresponsive to the point where I intervened, usually unsuccessfully. But one example is to be found at the transcript of the cross-examination at p 66 commencing at line 25: "Q: As of 6 May 2019 who was responsible for how much of the material that was available to police at the time be provided to you? A: I don't know. I was provided with the information, I commenced my report and that's the information I used. Q: At any time did you make any request for any other information other than the photographs and the laser scan taken a week later after the collision? A: In terms of a collision like this, the only evidence required for an interpretation of the physical evidence is the physical evidence. HIS HONOUR: So the short answer to the question is no, is that right? A: I didn't - I don't require any other information I terms of …(not transcribable) the important information for this is the scene evidence, the physical evidence at the scene. HIS HONOUR: I tried."
Going then to the evidence of Grant Johnston I made the following observation at p 35 of my reasons given on 16 November 2020: "Mr Johnston gave a number of reports; exhibit 7 is his main report. It is clear he visited the scene, as I have said a number of times now. A thorough description is given with diagrams and photographs, including photographs at the scene. These photographs were taken at a time much later in the year and there is the issue of shadow over the road."
Mr Johnstone gave an analysis of the impacts. The following is extracted from my reasons given on 16 November 2020 at p 35ff: "On a separate copy of the police survey plan I placed a scale diagram of the Toyota Landcruiser with the left side tyres over the tyre mark labelled X. It could be seen that the tyre mark extended towards the north, showing the vehicle was moving from a position where it was on the incorrect side of the roadway to its correct side of the road. Where this tyre extended along the barrier lines it was dark and consistent with being a skid mark, but at the northern end where it extended onto the northbound carriageway it was very hard to see. When the front right tyre of the Toyota Landcruiser diagram was placed at the southern end of the tyre mark Y the front left tyre on the Toyota Landcruiser lined up on the approximate position of the extension of the tyre mark X. The tyre mark Y extended in a northerly direction changing in appearance approximately halfway along. The tyre mark was initially dark coloured, like a skid mark, and changed to a scalloped appearance consistent with the tyre becoming deflated and possibly partly off the rim."
Mr Johnston gives an analysis of the impact, or impact 1 between the Landcruiser and the Honda motorcycle. At para 5.25 p 46: "At the time of the impact between the Toyota Landcruiser and the Honda motorcycle the Toyota Landcruiser was moving from right to left towards the northbound lane of the Murringo Road. The position of the damage to the Honda motorcycle is positioned adjacent to the centreline and the likelihood that it collided with the bridge rail after the impact with the Toyota also suggests a reasonable possibility that the Honda motorcycle was moving from right to left immediately prior to the moment of impact, that is from the northbound into the southbound lane. It is unlikely the sideswipe impact would have directed it so quickly across the complete width of the southbound lane unless it was already heading in that direction." …
Mr Johnston gave an analysis of impact 2, that is the Toyota Landcruiser and the Ducati motorcycle which is something, as I understand, Mr Parker did not do. I note there paras 5.28, 5.29 of the report. At para 5.32 Mr Johnston says: "That the Ducati motorcycle had been on the wrong side of the road after cutting the corner as it has been alleged, and suggested by Ms Winbank, it is possible that the rider saw the defendant at the same time as he saw the motorcycle, and they both swerved towards the southbound lane at the same time." And at the conclusion "The physical evidence suggests that both impacts actually occurred in the southbound lane on the defendant's incorrect side of the centreline. The evidence however also suggests that it is a reasonable possibility that in both instances the defendant has crossed to the incorrect side of the road in an attempt to avoid the motorcycles, both of which appear to have started on the incorrect side of the roadway, consistent with the witness' observation of them swerving to the right. Swerving right to left at the time of impact." … Page 265, under cross-examination: 'Q. Do you agree the photograph, page 23 you've referred to as figure 3.11, that it wouldn't be possible for a driver travelling north, that is in the direction of travel of the accused, to identify which side of the carriageway the vehicles were on on the other side of the bridge?' And this is what I was getting at earlier, 'A. I agree from this position you couldn't - you wouldn't have like a photographic view of seeing the centreline and the wheel and be able to say the wheel is one metre this side or that side, but from this point as a driver I do believe you can gain a perception as a driver of the lateral positioning of another vehicle. And I did that as an exercise, I was trying to look at vehicles and I believe there's a reasonable possibility you can judge lateral positioning as they appear to be on the centreline, over the centreline to some degree, but I agree you cannot absolutely see the wheel in the lane and know definitely where it is. … Q. You agree at figure 3.12 the location of the vehicle on the road, an oncoming vehicle on the road surface would not be readily apparent apart from the general perception? A. That's right. You would gain - I believe a driver would gain a perception of its lateral position but I agree you can't see the wheel on the centreline and say exactly where it is from his perspective.' A little later: 'Q. Would you expect to see some aggressive manoeuvre, some markings to confirm that? A. That depends, if you went as hard as you could you might leave with what we call yaw marks which are basically scuff marks. The complicating factor in this case with both scenarios. The complicating factor in this case with both scenarios is the bridge structure so any swerve had to be somewhat regulated and then you get onto the bridge. If you just swerved as hard as you could to the right and kept going to the right into the paddock, and then right eventually I think you would build up those marks. Given that there's been a swerve to the right and then at least some correction, possibly due to the bridge structure, the presence of the bridge structure you wouldn't necessarily see those marks, no.' A number of concessions were made by Mr Johnston which is very much to his credit; see p 280 Line 19."
An important aspect of Mr Kellaway's ultimate submission is the time that it would have taken the accused to perceive the motorcycles and then react. This was dealt with in evidence by the two experts, Mr Parker and Mr Johnston. The following appears from the evidence of Mr Parker at pp 53-4 of the trial transcript, commencing at 53:32: "Q: So for Mr Johnston's possible conclusion that the vehicle, the Land Cruiser has reacted to the motorcycles in his lane, is this the order of events? An acknowledgement by the driver of the Land Cruiser that there are vehicles in his lane? … Q: Or recognition? HIS HONOUR: Would recognition be a better word than acknowledgement Mr Parker? A: Recognition is a better word, yes. Recognition of the other vehicle, recognition that the vehicle is in his lane, yes CROWN PROSECUTOR: Generally saying, it's a period of about one and a half seconds for that recognition to take place? A: One and a half seconds to apply it to your perception, yes. The hazard perception. Up until the point of starting to apply a brake or starting to steer the vehicle. Q: Now the vehicle is then steered across to the incorrect side of the road? A: Yes Q: And put in a location on the incorrect side of the road where it's running parallel to the centre line roughly? A: Yes. Yes. Q: Are you able to give some estimate of the time it would take for the steering input to take the vehicle from the left carriageway into the right carriageway and be completely essentially parallel? A: It's a very difficult question. In terms of what we're asking is that steering manoeuvre can be done very quickly, but that vehicle is likely to lose control as a result of the movement if it is done to - so we don't have any indication the vehicle has lost control and therefore that manoeuvre appears to have been effected over a longer distance."
Mr Parker went on to opine (p 54:48) that there was no evidence that the Land Cruiser swerved quickly.
Mr Parker was asked for an opinion based on an assumption that the Land Cruiser was travelling at 68 km/h how far from the bridge would the driver (i.e. the accused) have recognised that the motorcycles were on the wrong side of the road (see p 56-57). The answer as I understand it was that anywhere between three to five seconds, including that 1.5 seconds to recognise the oncoming vehicles. At pp 73-4 Mr Parker conceded the possibility that the accused might be reacting quicker than the 1.5 seconds. Under Cross examination the following appears at pp 271-2 of Mr Johnston's evidence: "Q. Mr Parker gave some calculations of this on page 57 of the transcript. I don't know if you need to have a look at that again. But what's your estimate‑‑ HIS HONOUR Q. Do you need to see the transcript? A. No. I recall, I recall what he said. CROWN PROSECUTOR Q. He said that if travelling at 100 kilometres an hour he would estimate, with a three to five - do you agree with his three to five second range? A. That's the overall time is three to five. That's the reaction time plus the swerve. Q. And the braking? A. Well, the braking happens with the swerve. So when he's swerving and braking. It's not like swerve, stop, swerve, brake, stop, you know, brake again. That's all part of that motion. I agree - I disagree with a couple of things in his evidence. One is he said there's no studies of swerving. There's a lot of studies of swerving. But there's a lot of different swerves. There's real emergency swerves. There's people who swerve more passively around animals or an object on the roadway that we sometimes do in our research. So one can swerve from a very slight to a very severe, and I've literally done a research project myself that's published. You can swerve anywhere from point two - you know, point one - and we're talking about G, so one metre per second per second - up to the limit of the tyre, which is easily point seven five. I agree that 1.5 seconds, which is the lower value that he gave, I agree that's probably a ballpark figure to at least get to the type of position we're talking about. I don't disagree it could be longer, but I don't think there's any evidence to say, well, it must be longer. So it's a very long way of answering your question but I think I'd say I agree with the 3 and the two elements of the 3, the 1.5 second average reaction, and about a 1.5 second average response as a realistic minimum sort of average value. Q. So what he's given evidence of you wouldn't say is - you wouldn't disagree with it absolutely? A. Certainly not as a ballpark figure, and it's certainly not an absolutely figure, but as a starting ballpark figure I don't have an issue with about a three‑second time, time frame."
The point of going into the detail of the evidence given by both experts on the issue of the time involved is the submission, which is correct on the evidence in my view by Mr Kellaway that the accused had 1.5 seconds to make this emergency decision.
I observed on the issue of Mr Johnstone's evidence: "Mr Johnston performed a far more thorough analysis and was able to give an analysis of both impacts."
In addition, Mr Johnstone went to the scene, examined it thoroughly, drove through over the bridge and approaches to the bridge in a vehicle of the approximate height of that driven by the accused on 1 March 2019. He made concessions in the course of cross-examination. For all of those reasons Mr Johnstone was by far the more impressive witness. For those same reasons where there is any dispute between the evidence of Mr Parker and Mr Johnston I prefer the evidence of Mr Johnstone.
Mr Kellaway submits at paragraphs 14 and 15 of his written submissions: "Mr Johnson performed a far more thorough analysis and was able to give an analysis of both impacts. Your Honour found that ultimately the opinion given by Mr Johnston was undisturbed. The findings and analysis of Mr Johnstone cannot be further agitated, disputed, reduced or qualified. That is, the evidence of Mr Johnstone is now incontrovertible."
I agree with those submissions. "Undisturbed" was a word used by Mr Kellaway towards the end of his closing address at the trial and one which adopted by me in the course of giving reasons on 16 November 2020.
With those reasons for me remaining as the presiding judge, the reasons for declining the very belated application by the Crown for a view, the review of the legal directions and the review of the evidence I can now proceed to deal with the arguments advanced at the hearing on 7 May 2021. As indicated on that day both counsel had provided thorough and thoughtful written submissions, both sets of which were very helpful. Again, I thank both counsel for their industry and courtesy in the provision of those written submissions. Clearly both counsel have dedicated much time and effort to those submissions. I will go initially to the Crown's submissions.
At paragraph 11 of his written submissions the Crown Prosecutor succinctly sets out the particulars of negligence relied upon by the Crown. With respect the particulars are set out far more clearly than were the particulars of the driving in a manner dangerous at the trial. The particulars of negligence relied upon by the Crown are: "That the accused made a deliberate manoeuvre to drive his vehicle onto his incorrect side of the roadway to avid an impact with the motorcycles in circumstances where the accused was unable to confirm where the oncoming motor cycles were positioned on the road surface and that in all the circumstances this manoeuvre was an overreaction and a misjudgement on behalf of the accused amounting to driving negligently."
It is plain from the decision of Prineas v R [2018] NSWCCA 221 at [67] that the verdicts of not guilty in respect of the offences contrary to s 52A of the Crimes Act do not preclude a finding beyond reasonable doubt that the accused drove negligently.
At paragraph 20(iii) of his written submissions the Crown Prosecutor puts: "…A prudent driver in the position of the accused would not take the fundamentally drastic step of moving his vehicle completely to the incorrect side of the road to avoid an impact where the view of the roadway ahead did not allow any proper assessment of where the oncoming motorcycles were in relation to their lane. This is further emphasised when the evidence establishes that the two leading motor cycles were close to or only slightly over the centreline."
Further the Crown submits that "from the evidence at trial Kyle Sharp [i.e. the man working with the accused on the fencing job] managed to drive through the same section of roadway and pass the motorcycles without incident it can be inferred that the motor cycles were not fully on the incorrect side of the road". With respect to the Crown Prosecutor that proposition as submitted does not necessarily follow the undisputed evidence that Kyle Sharp was able to negotiate the section of roadway. He was some distance ahead of the accused. It is uncertain as to where he passed the motor cycles.
The Crown's submissions continue that as all vehicles involved, i.e. the two motorcycles and the accused, were all travelling at about 80 km/h, which at the time was well below the sign posted speed limit there was "sufficient time for the prudent drive to observe and react appropriately by moving left to the shoulder of the road, slowing down or even stopping rather than taking the extreme option of moving onto the incorrect side of the road". That submission has to be seen in the context of the roadway and especially the bridge as is clearly shown in any number of the photographs and drive through footage exhibited in the case. In this regard I note the requirement of s 117(3) of the Road Transport Act, 2013, which relevantly provides: (3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following - (a) the nature, condition and use of the road on which the offence is alleged to have been committed, (b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road, (c) any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes).
In re-examination of Mr Johnston, the following appears at p 282:01ff: "Q: You were asked questions about the options that the accused would have had if he perceived the things, accepting he perceived the things that he said he perceived. And I think you said is one is apply the brakes and stop. A: Yep. Q: The other is, second option go left, third option go right. A: Yes Q: And the Crown took you to some aerial photos, saying that there's no trees along the left had side of the road that would have prevented a left going option? A Yes Q: The decision of any one of those three options is made in what they refer to as the agony of the moment, of a very high--- A: Yes, correct. Q: ---intense decision. And what I want to ask you, looking at the photograph on p 24 is from that view, whether the guard rails and the bridge itself would have an impression on the mind that is drawing the mind towards the trajectory of the road as it's narrowing, like a funnel, do you understand what I'm saying? A: Yes, yeah it is definitely narrowing there, yes. Q: And so, as the time progresses while a decision is being made the impression of the drier [sic but read driver] is that of coming into a funnel rather than looking at an open scape where they can veer to the left or the right? A: Yes Q: So I suppose do you agree that the actual makeup of the guardrails on the bridge is something that could impact on the accused's decision when he's got those options in front of him, in that moment? A: Yes."
Further, the Crown submits that misjudgement by the accused can be sufficient to amount to driving negligently. The Crown cites the decision of Prineas v R [2018] NSWCCA 221. That was a matter where the accused had been acquitted of a charge of Dangerous Driving Occasioning Death at a trial by judge alone but later (on the s 166 matter) was convicted of the lesser charge of Negligent Driving. Factually it relates to the driver falling asleep. Despite the evidence of the Mears brothers that formed no part of the Crown case at trial. The defence case in Prineas was the accused had an honest and reasonable belief that it was safe for him to drive. That appears to have been the same issue at the hearing of the s 166 matter.
Hoeben CJ at CL (Fullerton & Hulme JJ agreeing, both with additional comments (in particular relating to the formulation of the grounds of appeal) in Prineas said at [69]-[70]: "The issue on which the applicant succeeded was that he had an honest and reasonable belief that it was not dangerous for him to drive in the context of the prosecution failure to negative the reasonableness of that belief as applicable to the dangerous driving charge. The issues upon which the applicant succeeded were his subjective belief that it was not dangerous to drive and the reasonableness of that belief in the context of the serious offence of dangerous driving. He succeeded on both issues or both limbs in relation to that defence. [70] In relation to negligent driving, the question strictly formulated is whether in that context, in the particular circumstances prevailing, it was reasonable for him to hold a belief that driving home did not involve a lack of care. His Honour found that such a belief was not reasonable. That finding was well open to his Honour on the facts and was not in conflict with his earlier finding in relation to the dangerous driving charge given the difference in the seriousness of the two offences and the lesser test required to establish negligent driving. Ground of Appeal 2 has not been made out."
The Crown Prosecutor correctly submitted (paragraph 21 written submissions) that if a prudent driver is confronted with an emergency situation and responds accordingly, that does not automatically preclude a finding that the driving in response to the situation was negligent. The decision of Osman v R [2020] NSWDC 217 at [34] is cited, where his Honour Judge Bourke SC said at [34]: "Most fundamentally in the circumstances of this case, in my view, is the importance of driving a vehicle, especially a very heavy vehicle in a manner that allows the driving to react in respect to some unexpected event which, at any point in time, might eventuate. In making that observation, I do not suggest that an accident which arises from an unexpected event will always involve negligent driving. As I have said, it will always depend on the circumstances."
It is worth emphasising that his Honour says as the last sentence in that paragraph, "…it will all depend on the circumstances".
The response by counsel for the accused to this submission is that the accused was faced with an emergency situation and was "acting in the agony of the moment". He cites the authorities of Leishman v Thomas (1957) 57 WN (NSW) 173 at 175 and Stuart v Walsh [2012] NSWCA 186.
Stuart v Walsh was a case involving an impact between a bicycle rider (Dr Walsh) and a truck, driven by Mr Stuart. Dr Walsh essentially rode across the path of the truck. Arguments advanced in favour of Dr Walsh was the Mr Stuart failed in his duty of care in that he did not react in a timely fashion, that he should not have braked hard as he did and that he had overreacted. The arguments are set out at [57]-[60] of the decision.
Tobias AJA (Bathurst CJ, Basten JA agreeing) said at [61]-[65]: "It was in the context of Dr Walsh's over-reaction submission that reference should be made to the appellants' submissions based on their "agony of the moment" contention. Reliance was placed on a passage from the judgment of Street CJ in Leishman v Thomas (1957) 75 WN(NSW) 173 at 175 where the Chief Justice considered the question whether a defendant may rely on the principle of the "agony of the moment" in answer to a claim that he acted negligently towards another."
Tobias AJA (Bathurst CJ, Basten JA agreeing) said at [61]-[65]: "This so called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved. It is a circumstance, and one possibly of great importance, that the defendant, charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so-called 'agony of the moment', he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise." [62] This passage from Leishman was quoted with approval by Stein JA, with whom Meagher and Beazley JJA agreed, in Abdallah v Newton (1998) 28 MVR 364 at 365-366. See also Antypas v McKeon [2001] NSWCA 417; (2001) 35 MVR 121 at [48], [49] per Ipp AJA with whom Hodgson JA and Rolf AJA agreed; Byrnes v Snare (1986) 4 MVR 97 at 99 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ agreeing. [63] Like the position in Abdallah, Mr Stuart found himself in a situation which was not of his making. He was driving his truck at 80 kph when, without warning, he suddenly observed between 65 and 90 metres in front of him a cyclist in the breakdown lane look right over his shoulder and then immediately turn 90 degrees onto the carriageway and, at least potentially, into the path of his vehicle. To adopt and adapt the observations of Street CJ in Leishman, Mr Stuart was forced to react to a sudden, unexpected and unheralded scenario when he observed a cyclist, suddenly and without warning, move into his path a relatively short distance in front of him. He may have assumed that the cyclist intended to proceed to the other side of the carriageway but he did not know at what speed. He did the obvious thing and immediately applied his brakes. It was never suggested to him that this was an inappropriate thing to do. Importantly, he responded to the potentially dangerous situation created by Dr Walsh as soon as it occurred: cf Vale v Eggins at [14] and [17]. [64] In so reacting Mr Stuart did not have the opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had remained in Lane 1, rather than to have steered slightly to his right and at the same time floored his brakes so that his rear wheels locked and his vehicle went into a skid. He found himself faced with a situation which, in my opinion, required immediate action of some sort. If steering to the right was in hindsight the wrong thing to do then it was, in my view, an error of judgment made in the "agony of the moment". To adopt and adapt what Ipp AJA said in Antypes, the fact is that Dr Walsh's conduct brought about a sudden emergency in circumstances where it would be unreasonable to criticise Mr Stuart for taking the avoidance action he did. Being confronted with a situation with which he was required to make an instant decision or one with which it was necessary for him to deal in a matter of a few seconds, it cannot be the case that he acted unreasonably in any way. [65] In summary, the issue is not whether there was an alternative course of action Mr Stuart could have taken which would have avoided the collision such as remaining in Lane 1 without the necessity of having to apply his brakes. The issue is whether in all the circumstances with which he was faced, his reaction to the sudden and unexpected movement of Dr Walsh onto the carriageway was unreasonable. In my opinion it was not. It accorded with the response of a reasonably prudent driver in the position Mr Stuart found himself.
Mr Kellaway submits at paragraph 34 of his written submissions: "The instance or the crisis or emergency in this case is now incontrovertible. It must be then be accepted that the accused was not the author of it, but suddenly entered it unexpected, unheralded and was forced to act without opportunity for calm reflection. This is one of the circumstances in applying the test of the 'prudent driver' and as allowed for by Street (CJ) a 'circumstance of great importance.'"
I agree with the Crown's submission that there is no plea of autrefois acquit available to the accused. I note the written submissions from the Crown were received well before those for the accused and accordingly the Crown was not aware as to what would be submitted on behalf of the accused. No submission is made on behalf of the accused that a plea of autrefois acquit is available. Driving in a manner dangerous to others and negligent driving are different offences which involve different tests. The situation in the matter presently under consideration is entirely different to the situation with which the court was met in R v King [2020] NSWDC 505.
The Crown's ultimate submission (paragraph 26 of the written submissions) is: "It is submitted that when all the circumstances are taken into account including the statutory provisions pursuant to s 117(3) Road Transport Act, 2013, the court would find beyond reasonable doubt that the accused's manner of driving involved a departure from the standard of care which an ordinary prudent driver would observe in the circumstances. Accordingly the court would determine beyond reasonable doubt that the accused is guilty of the two offences of Negligent Driving Occasioning Death under s 117(1)(a) Road Transport Act 2013 and the one offence of Negligent Driving Occasioning grievous bodily harm under s.117(1)(b)."
Mr Kellaway's ultimate submission (paragraph 35 of his submissions) is: "There is no other feature or combination of features in this case that once considered would allow for the accused to be not guilty of driving in a manner dangerous, but guilty of driving in a negligent manner. The distinction between the two offences is appreciated, however, again, the evidence of Mr Johnston remains undisturbed and it follows together with his evidence with respect to making an emergency decision, and application of the principle of the 'agony of the moment' that the Crown case cannot be said to be proven to the criminal standard".
Mr Johnstone's conclusion and opinion remain "undisturbed". That was an expression used by Mr Kellaway in his closing address and one that I adopted in the course of my reasons. It accurately states the status of Mr Johnston's evidence.
Because of s 117(3) of the Road Transport Act, the circumstances of the road in particular the bridge and the approaches to it are relevant to my determination in this matter. For the reasons given above it cannot be excluded as a reasonable possibility that the accused was reacting to the motorcycles being on the incorrect side of the road. He had very little time, indeed approximately 1.5 seconds to make a decision. Ultimately I am of the opinion that the argument as to the "agony of the moment" as explained by Tobias AJA in Stuart v Walsh at [61] as set out above succeeds. Accordingly my verdicts are: H72087350 Sequence 1: Not guilty; H72087350 Sequence 2: Not guilty; and H72087350 Sequence 3: Not guilty.
The accused is discharged.

At a glance

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Judgment (10 paragraphs)

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Cases Cited (12)