R v STANYARD

District Court of NSW|2012-05-14

Introduction 1A terrible thing happened on 7th of February 2009. The accused, Christopher Stanyard, was driving a small Suzuki four wheel drive in an area of some sand dunes. As he drove over one of the dunes the vehicle rolled forward on to its roof. Seated in the back were two young girls, Nicole Crawford and Kristen Free. Both of them were injured when the vehicle rolled over. Ms Free broke both her arms but Ms Crawford suffered a much more serious injury with the result that she is now a tetraplegic with no feelings or movement from her shoulders down. 2The accused was charged with dangerous driving occasioning grievous bodily harm. There are two such counts, one relating to Ms Free and one relating to Ms Crawford. He pleaded not guilty to those charges and asked that he be tried by judge alone. 3In the circumstances of this trial, the ultimate issue for me to decide was whether the accused was driving the motor vehicle in a manner dangerous to another person or persons immediately before it overturned. There is no issue that the accused was driving the motor vehicle, nor that it was involved in an impact, nor that, as a result of that impact, grievous bodily harm was occasioned to Ms Crawford and Ms Free.

Relevant Principles of Law 4Before I discuss the evidence called in the trial, and the conclusions which I draw from it, I will set out some preliminary matters. They are the sorts of things that I would tell a jury were this a trial where the jury decided the guilt or otherwise of the accused. 5I will determine all the relevant issues of fact according to the evidence. The evidence in this case was made up of what witnesses said in Court and the evidence which has been tendered. I have made no enquiries of any kind about anything that came up in this trial. I have never been to the location where the collision occurred. 6I have decided this case coldly and unemotionally. Were there a jury I would instruct them to ignore any feelings of sympathy or any other emotion that they might feel in deciding whether or not the accused is guilty of the two charges he faces. Judges are not immune to feelings of sympathy. It is impossible not to feel sorry for the awful thing that has occurred to Ms Crawford. In the witness box she presented as a proud, determined young woman, but it was impossible not to be moved by the situation she now finds herself in. I have recognised those feelings, recognised their effect upon me and then put those feelings to one side. Both the Crown and the accused are entitled to my judgment free from prejudice and sympathy. 7It is undeniable that a terrible thing happened on 7 February 2009 and there may be something of an automatic reaction to think that "someone must pay". Such thoughts have also been put aside.

8The most important and fundamental principle of law which I apply concerns the onus and standard of proof. Because this is a criminal trial, the burden of proving the guilt of the accused is placed firmly on the Crown. The accused starts from the position that he is presumed innocent and that presumption continues until the Crown satisfies me beyond reasonable doubt that he is guilty. 9What the Crown must prove, and prove beyond reasonable doubt, are the ingredients or essentials facts contained in the charges arising form the indictment.

Not All Issues of Fact Need to be Resolved 10It is important to understand that what the Crown must prove, and prove beyond reasonable doubt are the elements of these offences. The Crown does not need to prove that every word spoken by everyone of its witnesses is true. Indeed some of the witnesses called by the Crown gave contradictory evidence, in particular Mr Sayers, who had been a passenger in the vehicle that day, said things which contradicted what many other Crown witnesses said. 11It is not necessary to find in favour of the Crown on every issue of fact which is disputed by the accused. Nor is it necessary to come to a finding one way or the other about many of the disputed aspects of the evidence. Thus, for example, I simply do not need to make a finding about such things as whether the accused was told the rules of the park verbally when he paid the entrance fee. Similarly I have not found it necessary to resolve the issue as to whether Mr Sayers said to Mr Tyler "he's going to try and jump that sand dune over there". There are many other matters I have not found it necessary to resolve.

Silence of the Accused in Court 12The accused did not give evidence. I have not used that in any way against him. The accused was entitled to say nothing in Court and make the Crown prove his guilt if it could. The fact that the accused did not give evidence does not effect the fundamental proposition which I must apply - that is that the Crown must prove his guilt beyond reasonable doubt. 13So the silence of the accused in Court is not evidence against him. His election not to give evidence was not an admission made by him. His decision not to give evidence must not be used by me to fill gaps in the Crown case or make up any deficiencies or defects in the Crown's case that might exist.

The Elements Which Are Not in Dispute 14As I mentioned before, some of the elements which the Crown has to prove beyond reasonable doubt are not in dispute. 15I will deal with them before returning to those matters which are in dispute. Before I can find the accused guilty on the charges that he faces I must be satisfied beyond reasonable doubt of each of the following four elements. The accused was the driver of the Suzuki Sierra registered number AW48KK. That vehicle was involved in an impact. As a result of that impact the particular person named in each of the two charges suffered grievous bodily harm. At the time of the impact the vehicle was being driven in a manner which was dangerous to other persons. 16The evidence clearly establishes the first three elements in each count. Ms Crawford and Ms Free gave evidence that the accused was the driver of the vehicle when it rolled over and impacted with the sand underneath. They gave evidence of the harm that they had thereby suffered. That harm amounted to really serious bodily injury. Other people saw what happen as well. The location where the collision occurred was used for recreational four wheel driving and others involved in that activity that afternoon saw what happened and assisted the young girls afterwards. I am satisfied beyond reasonable doubt that each of the first three elements has been made out.

The Element Which is in Dispute - The Manner in Which the Accused was Driving 17That leaves for determination the real issue in this trial which concerns whether the vehicle was being driven in a manner dangerous to other persons at the time of the impact. 18Let me, at this stage, give a bit more detail about what is common ground occurred that afternoon before dealing with the matter in more depth. The accused, Ms Crawford and Ms Free, together with a friend of the accused named Todd Sayers, went to Boat Harbour Park near the airport south of Sydney. The area is a private park where there were sand dunes. The four young people went to the beach and later got back into the accused's vehicle. 19It is important to understand what later happened to know that Mr Stanyard's vehicle had a soft top rather than a hard, fixed roof. There was thus limited protection to the passengers should a vehicle of this kind roll over when compared with a vehicle with a fixed, hard roof. 20When the four of them got back in the vehicle the accused was driving, his friend Mr Sayers was in the front passenger seat and the two young girls were seated in the rear passenger seats. Although the soft top had been down earlier in the day, the soft top was put up after they left the beach. 21Mr Stanyard drove his vehicle in the area of the sand dunes. There is one particular sand dune which, like all sand dunes I gather, has a flatter side and a steeper side. The accused, with his three passengers in the vehicle, drove over that sand dune, driving up the flatter side, going over the crest, and then driving down the steeper side. He decided to repeat the manoeuvre. 22Mr Sayers got out of the vehicle with Ms Free's camera intending to take a photo of the vehicle as it went over the dune. (As it turns out investigations revealed that he didn't take any relevant photo). He stood at the bottom of the steep face of the sand dune. The accused, with the two girls still in his vehicle, drove the vehicle towards the crest of the dune driving up the less steep side of the sand dune intending to again go over the apex of the dune and down the other, steeper, side. 23There are a number of areas about what then occurred which are in dispute. But what is not in dispute is that as the vehicle was going down, it flipped forwards, rolling onto its roof, causing both of the young girls in the back to suffer grievous bodily harm of the kind I mentioned earlier. 24There is a dispute as to why it was that the vehicle rolled forwards. It is the Crown case that the accused was driving at an excessive speed, causing the vehicle to become airborne as it went over the apex of the dune, thus in turn causing it to land on its nose on the steep side of the dune and then flip over onto its roof. 25The defence case is that the accused was not travelling at a dangerous speed and that the vehicle rolled forward without becoming airborne. 26Of course I should emphasise that it is not a matter where the accused has to prove that the version of events that he advances is true. At all times I must ask myself whether the Crown has proved the guilt of the accused beyond reasonable doubt and in the circumstances of this case that involves a question as to whether the Crown has satisfied me to that high standard that the accused was driving dangerously at the time of the impact. 27The Crown puts its case on three bases. It says that the accused was driving at excessive speed. the accused's decision to drive the vehicle off such a steep sand dune was dangerous in itself, no matter what speed the vehicle was travelling and it was dangerous to drive this particular vehicle in that manner where it was not equipped with a protective roof or roll bar. 28Should I be satisfied that the accused was driving in a manner dangerous to other people because of the excessive speed at which he was travelling then I do not really need to examine terribly closely (or indeed at all) whether he would also be said to be driving dangerously in the other circumstances referred to by the Crown. 29The Crown relied on three important circumstances in considering the dangerousness of the speed at which the vehicle was travelling. They were the height from the top of the dune to the bottom, the angle of the steep face of the dune and the fact that the surface was sand, loose in parts.

The Speed the Vehicle Was Travelling on the Sand Dune

30Evidence as to the speed the vehicle was travelling came from very many sources. There is direct evidence as well as other evidence from which inferences can be drawn. As an example of the latter the Crown relies on evidence to suggest that the vehicle became airborne as it went over the crest of the dune. 31Expert evidence was called too. The witnesses gave their evidence concurrently after helpfully providing a joint document, which set out where one expert's opinion had changed, where they had reached agreement, and where they continued to disagree. Although Mr Alan Joy was called by the accused and Dr Raphael Grzebieta was called by the Crown, I detected no bias in either witness, and considered that they were both complying with their obligations to assist the Court. 32The experts differ by a very small amount as regards their calculations of the speed the vehicle was travelling as it went over the crest. 33Mr Joy calculated the speed at which the vehicle was travelling as it passed over the brink of the sand dune as being about 22.6 kilometres per hour. Dr Grzebieta agreed with the formula that Mr Joy used, but disagreed with some of the figures used in the formula. Dr Grzebieta considered that Mr Joy had overestimated the height that the vehicle had fallen and underestimated the horizontal distance it travelled. Using Dr Grzebieta's figures the estimated launch speed is 25 kilometres per hour. The difference in figures is explained by the experts taking their measurements from different sources. Mr Joy scaled the relevant measurements from a plan prepared by the police. Dr Grzebiata used measurements taken by a police officer at the scene. Neither method of measuring seemed to be inherently better or worse than the other. 34Mr Daily for the accused accepts that the speed of the vehicle was at least the speed calculated by Mr Joy. I am therefore prepared to proceed on the basis that the speed of the accused's vehicle as it went over the crest of the sand dune was at least 22.6 kilometres per hour. 35The other area of disagreement between the two experts concerns the certainty with which they considered that the accused's vehicle was airborne, such that all four tyres had left the sand, as it travelled in a downwards direction. Dr Grzebieta considered that it was "highly likely" that that occurred. Mr Joy said that he could not exclude the reasonable possibility that the vehicle was airborne and it was "line ball" on a balance of probabilities test. 36 What is perhaps more important than the question of whether the speed was 22.6 kilometres per hour or 25 kilometres an hour is this area of disagreement, namely whether the vehicle did in fact become airborne after it went over the crest. The evidence from sources other than the experts makes it clear beyond reasonable doubt that the vehicle was airborne. Eye witnesses said the vehicle became airborne and there is an absence of tyre tracks heading down the steep face of the dune suggesting that the tyres were not in contact with the steep face of the sand dune as the vehicle took its path from the crest of the hill to where it ended up at the bottom of the sand dune, on its roof. 37Let me at this stage explain the physical mechanism by which causing a vehicle to become airborne leads to it rotating forwards with the result that, in this case, the vehicle completely flipped over after its nose contacted the sand. As a vehicle drives up an incline its tyres would ordinarily be in contact with the surface underneath. As the vehicle reaches the top of that incline, the vehicle will tend to travel in the same direction with the front tyres of the vehicle leaving the surface if the momentum of the vehicle is sufficient. Once that happens the front of the vehicle commences to fall under the influence of gravity. But as the rear tyres remain in contact with the surface the rear of the vehicle does not fall. There is thus rotational force imparted to the vehicle. It will rotate in a forwards direction around its centre of gravity. Once the rear wheels also leave the surface and the vehicle is completely airborne, the vehicle continues to rotate. There is nothing to stop the vehicle rotating until it comes into contact with something to stop it. 38To summarise - driving a vehicle in such a way as to cause it to become airborne also causes that vehicle to rotate in a forwards direction as it falls. 39But of course there are other obvious consequences of driving a vehicle such that its tyres lose contact with the surface apart from rotation. You can't slow down a vehicle using the brakes when the tyres are not in contact with the ground underneath. The driver can do nothing to arrest the descent of a vehicle which is falling through the air. The driver can't change the path of the vehicle by steering. Once the vehicle is airborne the driver has no control over it in any way. 40As I alluded to earlier, the Crown relies on more than one aspect of the evidence in order to establish that the vehicle did become airborne. It relies on expert evidence. It relies on what witnesses did see (the vehicle being airborne) and what witnesses did not see (tyre tracks in the steep face of the dune). The Crown called evidence from witnesses who say they actually saw the vehicle become airborne after it reached the apex of the dune. It called evidence from witnesses who did not see tyre tracks in the steep side of the dune which should have been there, says the Crown, if the vehicle's tyres remained in contact with the sand before it flipped over. 41In contrast to the Crown case that the vehicle became airborne because the accused drove it at a dangerous speed, on 24 February 2009 the accused told police that he was driving very slowly indeed saying: "I think going, as I went over, I went so slow... " 42In answers following Q 241 in his ERISP the accused told police that as he was going up the approach side of the dune he was travelling about "walking pace", maybe a bit faster but that as he approached the top of the sand dune he slowed down "pretty much to a stop". Indeed the accused appears at Q193 to have attributed the collision to his travelling too slowly. This suggestion was not pursued at trial 43As it became clear during the course of the trial the defence case as advanced in questions put to witnesses involved a scenario, said to be consistent with the innocence of the accused, whereby the front wheels of the Suzuki broke through the surface of the sand at the very peak of the sand dune causing the front wheels to drop, imparting rotational movement to the vehicle. Under this scenario the front of the car was said to have dug in to the steep face of the sand dune towards its very top, this causing the vehicle to overturn. 44A number of things need to be noted about this alternative scenario postulated by defence counsel. Firstly it was not put, at least in clear terms, to either expert so that the expert could give his opinion as to whether such a scenario was a reasonably possible version of what had occurred. Secondly under this alternative hypothesis the vehicle did not become airborne, with the rear wheels at least being in constant contact with the sand until the vehicle overturned, and the front wheels being only off the sand momentarily. Thirdly I was asked to take into account an "unknown factor" or "environmental factors" which would have caused the front of the vehicle to dig into the sand towards the top of the steep face of the dune. 45I mentioned before the accused's interview with police. As I have explained in his ERISP he suggested that he travelled over the top of the sand dune, immediately before the vehicle turned onto its roof, at a very slow speed, indeed saying that he slowed right down "pretty much to a stop". It is clear however, that when I compare the evidence of those witnesses who saw the accused driving in the park that day and the evidence of the experts that the speed was at least 22.6 kilometres per hour, with what the accused told police about his manner of driving, the accused was misrepresenting what had occurred. 46Of course what an accused says to police in an ERISP is important evidence that a judge should take into account. But where it's been shown, without a shadow of a doubt, that the accused has told police things which are simply not capable of belief, the weight which must be given to the accused's version, must necessarily be significantly reduced.

The Evidence of Eye Witnesses Who Saw the Vehicle Rolling Over.

47I will now deal with the evidence from lay witnesses regarding the issue as to whether the vehicle became airborne. 48As I explained, the impact occurred in an area where recreational four wheel driving over sand dunes took place. There were many others, apart from the accused and those in his vehicle, who were present in the sand dunes that afternoon. Most importantly, evidence was called from three people who were actually at the base of the sand dune over which the accused's vehicle travelled and who witnessed what happened 49Of course, words do not convey events as well as a video or even still photographs of those events. But even within that limitation, these three witnesses, completely independent of anyone involved in the trial, gave graphic evidence of what they saw.

50Adrian Katsis was the passenger in a four wheel drive vehicle driven by Matthew Tyler. Natasha Phillips was also in the vehicle. After driving around for a bit the vehicle stopped at the bottom of the relevant sand dune. Mr Katsis, Mr Tyler, and Ms Phillips got out of the vehicle. 51Mr Katsis was watching the accused's vehicle and in particular he watched as that vehicle negotiated the sand dune successfully. After seeing that he noticed that the front seat passenger from the vehicle, Todd Sayers, came down from the dune towards him. It was clear, because of what he said and because of what he was carrying, that he was going to take a video or photograph of the vehicle as it went over the crest of the sand dune. Mr Katsis described what he saw from a point about three metres away from where the Suzuki ultimately came to rest. 52Mr Katsis gave this evidence: Q. What did you see that blue Suzuki doing when you say it came down? A. When it came down all I can remember was all four-wheels were in the air, it was airborne and it just came on a vertical angle with the front - you know with the headlights and the grille and slid a little bit like that and it just flipped over like. ... Q. When you first saw the wheels off the ground was the front part of the vehicle in contact with the sand or not? A. No, when it came off the dune the tyres were up in the air and then it's just gone head first and it's just slid a bit. ... Q. Could you see the underside of the vehicle, the bottom of the vehicle at any time? A. Underneath it? Q. Yes? A. For a short second yeah. Q. When? A. When the whole vehicle came off the dune - this is all split second stuff. It's like a Hollywood movie. 53In cross-examination it was put to him that the vehicle "immediately dipped down without getting airborne". He denied that that is what occurred saying: A. No that's - the tyres were in the air, it was - it didn't go down the hill, like it's all tyres and it was just rolling down the hill. This was high revving, you could hear it, you could hear something coming and then a Hollywood movie four-wheels are in the air. At most he was prepared to admit that he may not have seen the tyre furthest away from him: Q. What I'm going to suggest to you is as that vehicle's come over that sand dune and those front wheels of the vehicle have, as I said, dipped immediately down and contacted with that upper face of that sand dune and then it slid down that slope? A. No it's come off, I saw the tyres and then it's just - like I said it nosedived, it slid for a short moment and then it just flipped. Q. When you say "saw the tyres" you're talking all four tyres are you? A. Okay, I'll be more specific then. I'll say that I saw three tyres because I can't see the other back tyre of the side. Q. So what you would say is that vehicle, without seeing the furthest tyre because it's looking away from you, and you say that that vehicle was completely airborne as it came over that crest? A. Completely airborne. 54He was adamant in the accuracy of his observations: I saw all the - those three tyres and it will always be in my head that it was airborne no matter what anybody says, that's what I saw and that's what I'm - that I said on my statement and that's what I'm saying now. That there was tyres airborne. 55To say that Mr Katsis' evidence is powerfully indicative of dangerous driving is something of an understatement. In complete contrast to the version of events given by the accused when he spoke to police, Mr Katsis has the vehicle becoming airborne over the crest of the sand dune after hearing "high revving". 56There is no reason to think that Mr Katsis might have made a mistake in his evidence. It is apparently entirely consistent with what he told police when they interviewed him, he was in an ideal spot to observe what he saw, and his attention was drawn to the vehicle before it appeared over the top of the sand dune. It is not contradicted by any of the expert evidence. But perhaps of most importance, what he observed is strongly supported by other evidence, in particular the evidence of Mr Tyler and Ms Phillips, the evidence of whom I will deal with next. And on top of that there is the evidence concerning the absence of tyre marks down the steep face of the sand dune leading to where the accused's vehicle overturned (suggesting the accuracy of Mr Katsis' evidence that the vehicle was airborne, with the wheels not in contact with the sand after it came over the crest).

Natasha Phillips 57Ms Phillips was also standing at the base of the relevant sand dune. She gave this evidence: Q. Would you describe in greater detail what it is that you saw when you say that the vehicle came over the hill? A. Well it was quite a steep hill and it came over and I know it was in the air because you could see the blue underneath it from the sky, and it literally landed like that on its nose and it sort of slided a little bit and then landed on its roof. It looked like the momentum pushed it onto its roof. In cross -examination she said something similar: Q. So what exactly did you see then, tell us exactly what you saw? A. I saw the vehicle come over the hill. I saw that it had become airborne because you could quite visibly see the sky underneath the bottom of it, and then it landed on the sand dune and flipped onto its roof. She denied that the wheels were still in contact with the sand as the vehicle came over the crest: Q. What I'm suggesting is that clearance, meaning that the wheels are still in tact with the sand and you're able to see that gap between the sand and the bottom of the vehicle whilst it's still in contact with the sand? A. That is incorrect. She confirmed that "it landed nose first. It did not land tyres first" although "when the nose hit the sand" the front tyres were "in contact with the sand". 58Although there was some confusion in some aspects of what she said there was no doubt that it was her evidence that the vehicle was airborne. She said "I did see blue sky underneath the vehicle which would suggest that it's airborne." Q. Did you ever see a gap between the sand and any of the wheels of the Suzuki? A. Yes, I'm sorry, yes, that's what I'm trying to say, sorry. This was later clarified in re-examination. Ms Phillips said that there was a large gap between the front wheels and the sand but she was not entirely sure about the back wheels because of the angle the vehicle was on. 59Once more Ms Phillips was an independent witness, in a good position to observe what she saw. She was adamant that there was a large gap between the front wheels and the sand. She did not know, her evidence ultimately was, about the back wheels. This of course is not positive evidence that the back wheels were in contact with the sand, merely evidence that Ms Phillips could not say one way or the other. It does not contradict the evidence of Mr Katsis and the absence of tyre marks in the steep face of the dune suggests that, had Ms Phillips been in a position to see, she would have seen that the back wheels also were off the ground.

Matthew Tyler 60The other person who was with Mr Katsis and Ms Phillips that day was Matthew Tyler. He was the owner of the four wheel drive in which the three of them travelled around the sand dunes that day. His attention was drawn to the Suzuki driven by the accused because of the manner it was being driven. He noticed it because he said: It was driving fairly erratically, quite fast, you know, clearly above the speed limit that it should have been doing. Excessively trying to get airborne over sand dunes, et cetera. He watched the Suzuki for about 15 minutes. He then stopped his vehicle and got out of it. He saw Mr Sayers and spoke to him after Mr Sayers got out of the Suzuki. This is what he described hearing and seeing after that: I remember standing with Adrian at the top, up towards my vehicle, and seeing - well to start with I heard it. You could hear the engine of the Suzuki straining up the dune and then I remember seeing the front wheels and the bonnet become visible at the top. I remember seeing the front wheels get airborne over the top of the sand dune. I wasn't really watching what the other guy was doing but I know that he did have a digital camera out at that point. And then I remember seeing probably the vehicle airborne halfway down its chassis until the back wheels started to leave the ground and then as soon as the back wheels came off the ground I just remember it rolling over in the middle of - in the air and remember hearing the crunch of the windscreen and the shattering of the glass and people screaming. In cross-examination he said that the part of the Suzuki which hit the sand first was the front of the vehicle, not the front tyres. In contrast with the evidence of Mr Katsis he said that he could not say that the vehicle was not completely airborne but was adamant that the front wheels were off the ground. 61I should mention that in his evidence Mr Joy, the defence expert, referred to some evidence of Mr Tyler which suggested that the vehicle was not airborne. However I am satisfied that in the passage that Mr Joy referred to, Mr Tyler was referring to observations he had made of the vehicle at earlier times, not its path immediately before it overturned. 62Once more Mr Tyler was independent, in a good position to observe and hear what happened, and his attention had been drawn to the vehicle before it came over the crest. What he saw was the Suzuki driving over the crest in such a manner that the front wheels left the ground, the front of the vehicle fell under the influence of gravity until the front of the vehicle, and perhaps the front tyres, contacted the sand further down the steep face of the sand dune.

Phillip Hillyer 63For the sake of completeness I should mention the evidence of another witness, Phillip Hillyer, who at one stage said that he saw the Suzuki being driven in such a manner that its front wheels were off the sand, on one of the occasions that he saw it being driven over a sand dune. Mr Hillyer's evidence changed repeatedly after he was reminded about what he had earlier told police. His evidence in court as to whether he had ever seen the front wheels leave the sand went backwards and forwards and backwards and forwards until I rather got the impression that Mr Hillyer had given up attempting to assist by answering questions with his genuine recollection and instead was saying whatever he thought would make it easier for him. I place no weight on his evidence concerning the question of whether the Suzuki's front wheels ever left the ground.

Summary of the Evidence of Eye Witnesses 64As I began my summary of the evidence of the independent witnesses who were at the base of the relevant sand dune and who heard and saw what happened, their evidence painted a picture of a vehicle travelling over the crest of the sand dune at sufficient speed for the vehicle to become airborne, fall down the face of the dune until it nose dived into sand and flip over forwards onto its roof like, as Mr Katsis said, one might see in a Hollywood movie. This was not the slow, cautious, pace suggested by the accused in his ERISP. Nor is it consistent with scenario suggested by Mr Dailly.

Tyre Tracks - Those That Were Seen and Those That Were Not Seen. 65I mentioned before that the evidence suggesting that the vehicle had been completely airborne, that is with all four wheels off the ground, after it went over the crest was supported by the absence of tyre tracks down the steep face of the dune. It is to that issue that I will now turn.

66The case for the Crown is that the vehicle was travelling at such speed as it went over the crest that the vehicle became completely airborne. The case for the accused is to the contrary. Through his lawyer he advances a version of events such that, at all times until the vehicle rolled over, at least the rear wheels were in contact with the sand. On the accused's version there must have been tyre tracks down the steep face of the sand dune leading up to the point where the vehicle flipped. On the Crown case there would not have been. 67I will not go through the evidence of each witness on this issue in any detail but I can summarise the evidence regarding this issue very simply: No one gave evidence of seeing tyre tracks down the steep face of the dune leading to where the vehicle ended up; Many witnesses gave evidence of looking for tyre tracks down the steep face of the dune and not seeing any, including those who were attempting to determine what happened, or in more formal terms, the mechanism of the collision. The evidence is thus all one way - from a point in time relatively soon after the vehicle overturned, tyre tracks were not visible down the steep face of the dune. 68The best evidence from Mr Dailly's point of view as regards tyre tracks came from Mr Hunter, a member of the New South Wales Fire Brigade. He was the only person to see tyre tracks anywhere on the steep face of the dune in the relevant area. He saw tyre track marks coming down maybe 12 inches or 300 millimetres from the top of the crest of the sand dune. But even he does not see tyre tracks anywhere else on the steep face of the dune. Mr Dailly concedes that even under his alternative scenario the rear wheels at least of the vehicle would have left tyre tracks much further down the steep face than those observed by Mr Hunter. 69Mr Hunter's observations are consistent with the vehicle travelling through soft sand on the crest of the sand dune and becoming airborne. After all the wheels would not travel on the very top of the surface of the sand but would sink in some distance because of the soft nature of the sand. Perhaps more importantly as regards this aspect of the evidence however is Mr Hunter's observations that there were no tyre tracks further down the steep face of the sand dune as there would have been if any of the tyres of the vehicle remained in contact with the steep face. 70Mr Dailly confronts this evidence concerning the absence of observations of tyre tracks by arguing in two ways. He first suggests that the tyre tracks which would have been there had been covered up by wind blown sand by the time people looked. The next aspect relies on what is known as the "the angle of repose" of the sand. 71I will deal with the wind blown sand aspect first. One of the problems with that argument is that the first observation of the lack of tyre tracks was made almost immediately after the collision occurred. In considering what follows it must be borne in mind that the first triple O call was made at 5.04 pm. 72Phillip Hillyer saw the vehicle on its roof and made a triple O call at 5.09 pm. He didn't see any tyre tracks leading to the location where the vehicle came to rest. This observation was made before any ambulance officers had arrived. 73Ross Brown from the New South Wales Ambulance Service arrived at the gate at 5.26 pm and at the location of the upturned vehicle a short time later. He looked at the face of the sand dune and said "there were no markings from the tyres at all on the wall of the dune". In response to the suggestion made to him that it was not part of his duties to inspect the sand dune he said this: When I arrive at any scene, after this amount of employment as an ambulance officer, you subconsciously assess the scene and more so at a vehicle accident for mechanism, as in what speed the vehicle was travelling to cause what injuries that may occur. 74Mr Floyd, a park employee, got a phone call at about 5.15 pm relating to the incident and took a couple of police officers who arrived at the entrance of the park to the location where the Suzuki was. When he was asked what he noticed he said: I noticed an indentation where the vehicle had left the top of the dune and landed down, probably about three-quarters of the way down the dune. It looked to me it landed on its nose. He did not see any other marks indicating contact between the vehicle and the sand between the top of the dune and the location where the vehicle had landed on its nose. He confirmed that evidence when he explained that he saw tyre marks going up the flatter face of the dune (sometimes referred to in the evidence as the approach side). He said from what he could recall those track marks went "to the top of the dune and then down that face there was nothing". 75Stephen Wright also from the New South Wales Fire Brigade conducted a "scene assessment" and didn't notice any tyre marks on the steep face of the sand dune. 76So one thing can be easily found as a result of the preponderance of this evidence: there were no tyre tracks to be seen leading from the crest of the dune to the location where the Suzuki ended up on its roof despite a number of witnesses looking to see if there were any tyre tracks down the steep face of the dune and some of those witnesses making their observations very soon after the incident occurred. 77As I mentioned before Mr Dailly attempts to meet the obvious conclusion to be drawn from this evidence, that the vehicle was in fact airborne after it left the crest of the dune, by suggesting the possibility that the tyre tracks which the Suzuki would have left as it travelled down the face of the dune had been obliterated as sand was blown into the tracks, filling in indentations in the sand caused by the tyres. 78There is no doubt that there was a strong wind that day. The Crown tendered meteorological data showing the winds being recorded at nearby weather stations. Almost all witnesses agreed with the proposition that there was a strong wind and indeed in some of the photographs taken after the sun had set, with the use of a flash, the light from the flash is reflected in airborne particles of sand. Mr Dailly relies on this evidence to suggest that tracks down the steep face of the dune would have been obliterated within a short time. 79No expert evidence was called as to the speed at which tyre tracks in sand dunes are covered up. From my experience of life, in the absence of expert evidence, I might have had some doubts as to whether tyre tracks would disappear as quickly as they must have for them to be obliterated by the time the witnesses looked for them, even in a very strong wind. However, fortunately, there is other evidence which means that I can put my own, possibly inaccurate, experience of life aside, which I do. 80As well as there being clear evidence that no tyre tracks were visible down the steep face of the dune in the immediate vicinity of where the vehicle ended up, there was evidence that tyre tracks were visible on the flatter, approach side, of the dune and that these tracks were visible some hours after the vehicle overturned. No satisfactory explanation was advanced as to why if the behaviour of sand in strong winds was such that it would cover up tyre tracks in one area of the sand dune, it would not also cover up tracks in another area. And I repeat: Tyre tracks were not seen in the relevant area of the steep face of the dune by people who looked very soon after the incident, but were seen on the approach side of the dune some hours after it. 81There are other relevant tyre tracks as well. As I mentioned no one saw tyre tracks down the steep face of the dune where there would have been tyre tracks if the vehicle had remained in contact with the steep face of the dune before it rolled forward onto its roof. But a photograph taken some hours later, as the vehicle was being turned back onto its wheels, shows tyre tracks in the steep face of the dune in the background. Those tyre tracks could only have been made before the vehicle overturned. Indeed I am satisfied that they were made by the accused's vehicle as he went over the sand dune on an occasion before the one which led to the collision. The evidence clearly established that the accused had traversed the relevant sand dune at least once before the collision occurred. Once more the conclusion is obvious. The strong wind cannot be an explanation for tyre tracks in the steep face of the dune being filled in in between the time at which the collision occurred and the time at which observations were made of the absence of tyre tracks leading up to the overturned vehicle. 82The second argument Mr Dailly puts to explain the absence of tyre tracks down the steep face of the dune concerns what is known as the "angle of repose" of loose sand. This is the angle beyond which sand ceases to be self- supporting. For this reason sand hills made out of loose sand can never be steeper than 35 degrees. A 36 degree sand dune composed of loose sand does not exist because the sand collapses until the 35 degree angle is reached. 83Mr Dailly says that tyre tracks might have been covered up immediately they were made because the angle of the indentation was greater than 35 degrees but this explanation must be rejected as well. Firstly it suffers from the same problem that I mentioned above when discussing the possibility that wind blown sand has covered up any tyre tracks in the steep face of the dune. The evidence was that other tyre tracks could be seen for some hours after the collision occurred and there is no explanation as to why the sand would collapse so that tyre tracks were not visible after only about 30 centimetres down the steep face of the dune. Secondly as I understand the expert evidence regarding the angle of repose the collapsing sand would not completely fill in an indentation caused by a tyre mark, merely make it slightly less obvious. The sand only collapses until it reaches the angle of repose, it does not keep collapsing until the surface becomes completely flat. 84So the alternative hypothesis advanced by the accused suffers from the absence of tyre tracks. Another significant factor in addressing the alternative hypothesis concerns the location of the vehicle after it rolled onto its roof. It ended up at the very bottom of the sand dune. On the accused's alternative hypothesis the vehicle would have overturned quite high up on the dune and it was unlikely to have slid on its roof down to the bottom, especially given the absence of a hard roof which might have made it easier for the vehicle to slide inverted down the sand dune. 85There are other problems with the alternative hypothesis. The Crown relied on the accused's driving before Mr Sayers alighted. There was evidence that suggested he drove recklessly. I have not found it necessary to take that into account. However in responding to the submissions from the Crown on that issue Mr Daily reminded me of the evidence of Mr David Hillyer. He observed the accused driving cautiously over a steep sand dune. It seems that this represented Mr Hillyer observing the accused's driving over the accident dune whilst Mr Sayer was still in the vehicle. 86This evidence also suggests the improbability of the accused's alternative scenario being accurate. Mr Hillyer saw the vehicle successfully do what it later unsuccessfully did. What appears to be different is the speed at which the accused drove, instead of proceeding "cautiously" he drove at about 22.6 kilometres per hour 87One of the factors relied on by Mr Dailly in support of his argument that the vehicle did not become airborne concerned the absence of damage to the front of the car, something that the experts noticed, as did I. The surface into which the vehicle nosedived was soft and some of the witnesses suggested that the initial point of contact between the vehicle and the sand below was at the vehicle's front wheels rather than the nose of the vehicle. These factors combine to reduce the weight which can be given to the absence of damage to the front of the car as a circumstance suggesting that it did not become airborne. 88Of course although I have been giving reasons as to why I conclude that the accused's alternative hypothesis is not a reasonably possible version of events I have in no way reversed the onus of proof. As I made clear earlier it is not for the accused to prove anything in this trial. It is not for him to prove that the alternative hypothesis that he advances is a reasonably possible version of what actually occurred. It is for the Crown to prove that it is not. 89Further I have not limited my examination of whether there is an explanation for what occurred that day in a way that is consistent with the accused's innocence to the particular scenario advanced by the accused through his counsel at trial or by the accused himself in his interview with police. I have considered all the evidence and examined whether there is another reasonably possible explanation other than the one advanced by the Crown.

90Although the Crown has charged the accused with two counts of driving in a manner dangerous to other persons rather than merely driving at a speed dangerous to other persons, of course the manner in which the accused drove includes the speed at which he was driving. The decision by the Crown to charge in that manner was, so I anticipate, because the Crown asserted other aspects of the accused's driving which were dangerous, namely driving over the sand dune, at whatever speed, in a vehicle without a hard top. 91As it has turned out it is only necessary for me to examine the speed at which the accused was driving in order to conclude that he was driving in a manner dangerous. 92The accused's manner of driving is relevantly dangerous if the Crown has established that it was potentially dangerous to another person or to other persons. In order for me to find the accused guilty I have to be satisfied beyond reasonable doubt that the manner of driving was such that it was a serious breach of the proper conduct of a motor vehicle, so serious as to be in reality, and not merely as a matter of speculation, potentially dangerous to another person or to other persons. 93Whether the accused was driving dangerously is an objective test and it matters not whether the accused thought that he was driving in a manner which was dangerous to another person or persons. The Crown does not have to prove that the accused thought it was a dangerous way in which to drive. The Crown does not have to establish that the accused knew or realised that he was driving the Suzuki in a dangerous manner. 94What matters is my assessment about the way in which he was driving - has the Crown proved to me beyond reasonable doubt that the manner in which the accused was driving immediately before the vehicle overturned was a manner which was dangerous to another person or persons? 95In answering that question I of course look at all the circumstances which applied at the relevant time. 96Although there is a statutory defence provided under section 52A(8) the accused made no attempt to prove that there was no causal connection between the manner of his driving and the grievous bodily harm which was occasioned to Ms Free and Ms Crawford. Nor did the accused attempt to raise an honest but reasonable mistake as to any relevant fact. 97In deciding whether the accused has been shown to be guilty or not I have to examine whether the Crown has satisfied me beyond reasonable doubt that in a real sense, because of the particular way the accused drove that day, his manner of driving is potentially dangerous to another person or persons, in the circumstances of this case most relevantly, the passengers in his vehicle. 98One of the issues addressed by Mr Dailly in his submission concerned the fact that both Mr Joy and Dr Grzbieta expressed the opinion that the accused was travelling only slightly above the speed limit in that area. Mr Dailly relied on that circumstance as suggesting that that would be a factor which would lead me to conclude that driving at that speed was not dangerous. 99A number of things need to be said. Firstly there was no evidence as to who determined that the speed limit in the park should be 20 kilometres an hour. This was a private park not a public road and, presumably, the owners of the park were entitled to determine that the speed limit would be whatever they chose. 100Secondly, and much more importantly however, just because the speed limit in any area is 20 kilometres an hour it does not mean that a person is entitled to drive at that speed everywhere in that area, and in all circumstances, at the speed limit. The speed limit on a public road is the maximum that a driver can travel at without breaching those road rules concerning speeding. It says nothing about whether it is safe to travel at that speed in all conditions. As the Crown said in his submissions to me the fact that a roadway has a particular speed limit does not mean that it is not dangerous to drive around a hairpin bend at the maximum speed allowed. A driver must always be prepared to drive at a speed below the speed limit because the conditions in the particular area where the driver is travelling make it unsafe to travel at the speed limit.

101As the accused drove his vehicle at such a speed that it became airborne as it came over the crest of the sand dune then he was driving in a manner dangerous to another person or persons. To drive a vehicle so that its tyres lose contact with the ground underneath as the vehicle goes over a crest with a substantial drop on the other side is clearly relevantly dangerous. 102Whilst it may not be dangerous driving to drive as the accused said he did to police in his ERISP (and I repeat this is an issue I need not resolve) it was clearly dangerous for the accused to drive at such a speed that the vehicle's momentum would be such that its tyres could not follow the profile of the sand dune remaining in contact with the ground at all times, in circumstances where there was a substantial vertical distance between the top of the dune and its base. 103It will be noted of course that I have not ascribed here a precise speed to the vehicle as it became airborne. This is because it largely does not matter. Whatever the precise speed was it was sufficient to cause the vehicle to become airborne. Thus whether the speed of the vehicle was 25 kilometres an hour or 22.6 kilometres an hour does not really matter. 104Things might be perhaps different if there was a suggestion in the evidence of the experts that the accused may have been travelling at the speed he said he was travelling at when he was interviewed by police. In that case it would have been necessary for me to consider the second way in which the Crown said the accused was driving dangerously - namely by driving over such a steep sand dune. But, as it is agreed between the experts that the accused was travelling at at least 22.6 kilometres an hour, and as the experts do not cause me to disregard the observations of witnesses that the vehicle became airborne then I need not consider either of the alternative ways the Crown presents its case. 105I repeat once more, the dangerous aspect of what the accused did was driving at a speed which caused his vehicle to become airborne in circumstances where there was a large vertical distance between the crest of the sand dune and its base which meant that the vehicle hit the sand nose first and then rotated on to its roof. 106There was a great deal of cogent and persuasive evidence from various sources against the accused. The eyewitness evidence was of itself enough to prove the accused's guilt. On top of that, the essential aspect of the eyewitness evidence, namely the way in which the vehicle got from the top of the crest to the bottom, was strongly supported by the evidence regarding the absence of tyre tracks where they should have been if the vehicle was not being driven dangerously. 107The manner of the accused's driving, including the speed at which he travelled, was such as to cause the vehicle to become airborne as it went over the crest of the sand dune with the result that the vehicle rotated forwards and the accused could do nothing to prevent the vehicle falling under the influence of gravity, rotating as it did so, the significant vertical distance to where it hit the ground below. By causing the vehicle to become airborne the accused could not slow down its descent by using the brakes - in effect he had brought about a situation where he was unable to control the vehicle in any way whatsoever. And he brought about a situation where the vehicle would rotate as it flew through the air, 108This created a real danger to the passengers in his vehicle. Driving in such a way that the vehicle became airborne as it went over this sand dune was a serious breach of the proper conduct of the vehicle. This was such a serious breach as to be in reality potentially dangerous to the passengers in his vehicle. The accused caused a situation to come about where his vehicle fell through the air, rotating as it did so, without being in contact with the sand, and without the accused being able to arrest the descent of the vehicle until it collided with the sand at the base of the dune, its momentum causing it to then overturn.

Other Evidence 109There is other evidence incriminating the accused which I have not yet mentioned. In once sense I don't need to mention it because I am able to conclude that the Crown has made out its case without referring to other evidence suggesting the accused's guilt. But lest it be thought that I have overlooked it, or perhaps even decided that it does not support what the Crown says, I will briefly mention some other aspects of the evidence.

The Perceptions of Danger Felt by the Passengers in the Vehicle 110Ms Free gave evidence that immediately before the vehicle went over the sand dune and overturned she asked to get out of the vehicle. Her evidence was that she was scared by what the accused had just done and by what he was planning to do. She gave evidence that she didn't actually get out because Ms Crawford asked her to "stay and hold my hand". Ms Crawford gave evidence that she too was scared and asked to get out of the vehicle and that she remembered Ms Free asking the same thing. She said that the accused did not reply to her request and the next thing she remembers was the vehicle nose diving. 111Of course such requests, if they were made, are relevant to sentence in the event that the accused is convicted but they also have some relevance to the perceived dangerousness of what the accused had been doing and was planning to do. 112Mr Sayers gave evidence that whilst initially Ms Free asked to get out when he did, she changed her mind. This is broadly consistent with Ms Free's evidence. This suggests that Ms Crawford's recollection, clearly affected by the awful injuries she suffered, may have been faulty in a minor way. In any case there is evidence from three of the four people in the vehicle that day that immediately before it overturned Ms Free asked to get out, two of the witnesses, including Ms Free herself, explaining that she didn't do so after changing her mind. That is some evidence as to the dangerousness of what they could see the accused was planning to do. It is not the strongest evidence suggesting his guilt of course but it does point in that direction. I have to repeat however that even in the absence of this evidence my conclusion as to the accused's guilt would have been the same. The accused's statement to Ms Crawford as she lay injured on the sand 113Ms Crawford gave evidence that as she was lying injured on the sand the accused approached her and said "I'm sorry, please don't tell anyone". Quite understandably given her understanding of the injuries she had suffered her evidence was that she responded in a rather forceful way. 114Whilst the words "I'm Sorry" could not safely be said to be an admission, the words, "please don't tell anyone" are clearly capable of being interpreted as an admission of wrongdoing - why else would the accused ask Ms Crawford not to tell anyone something? 115In cross-examination it was put to Ms Crawford that that conversation had not occurred but she confirmed that it had. 116The resolution of whether the accused did in fact say what Ms Crawford said he said is inter-related with many other issues. The officer who interviewed the accused on 14 February 2009 did not ask him whether that conversation had occurred. The reasons for that are obvious. The evidence is that Ms Crawford made her statement to police on the 1st of April 2009 and so at the time the police interviewed the accused they would not have known that Ms Crawford's version of events included that conversation. The result is that the accused has not denied saying to Ms Crawford "I'm sorry, please don't tell anyone" but he was not given the chance during his ERSIP. 117I am prepared to find that the accused probably did say those words and that they represent an acknowledgment by him that he had done something he should not have done. But once more I did not need to have made this finding in order to reach the conclusion that I have regarding the accused's guilt

What Mr Sayers was Alleged to Have Said the Accused Was Going To Do. 118Matthew Tyler gave evidence of a conversation he had with Mr Sayers after the latter got out of the Suzuki and waited at the base of the sand dune with a camera. Mr Tyler said that he walked up and said to him "what's going on mate? What are you doing?" to which Mr Sayers replied, "he's going to try and jump that sand dune over there". 119That evidence was admitted without objection. It is clearly relevant because a person who has been told that something dramatic is about to happen is more likely to focus his or her attention on what he or she has been told is about to occur, than a person who is taken by surprise. That might explain why no objection was taken, but there was no application made that I limit the use of that evidence in so far as it might be categorised as an admission by hearsay. Were there a jury I would give the jury a direction under section 165 of the Evidence Act. I would tell them that the evidence may be unreliable and that there is a need for them to exercise caution before they accept it. I would explain that one of the reasons for this need for caution is that what Mr Sayers said that the accused said to him was not a statement made on oath in the solemn atmosphere of a Courtroom. Were it necessary I would give myself that warning in the course of this judgment. However this is one area where I simply do not need to decide whether or not Mr Sayers said those words and if he did whether or not the accused had told him what Mr Sayers said he had told him. 120In cross-examination of Mr Tyler it was made clear that Mr Tyler had not said to police that Mr Sayers told him that the accused was going to "jump that sand dune" when he made his statement to police on 11th February 2009. And Mr Sayers denied making such a statement when he gave evidence. In those circumstances, and in a case where the guilt of the accused is otherwise proved overwhelmingly, without suggesting at all that I have made a finding that Mr Tyler was mistaken, I need not resolve the question as to whether Mr Sayers said what Mr Tyler gave evidence that he had said.

Conclusion 121To summarise, I have found that the accused drove at such a speed, at least 22.6 kilometres per hour, that his vehicle became airborne as it crested the sand dune causing it to rotate forwards as it fell until it struck the ground and flipped over on to its roof, thereby causing grievous bodily harm to Ms Free and Ms Crawford. In summary I have found that the vehicle became airborne because eyewitnesses saw that happen, there were no relevant tyre tracks in the steep face of the dune whilst there were tyre tracks visible elsewhere, and neither expert suggests that it was impossible for the vehicle to become airborne, indeed one expert saying that was highly likely. 122I have found beyond reasonable doubt that driving at such a speed as to cause the vehicle to become airborne in all the circumstances amounted to driving in a manner which was dangerous to another person or persons. Accordingly I find the accused guilty on both counts.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2012

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