Valenzuela v Bretherton [2001] ACTSC 9

".... in The Australian Capital Territory, on the 27 December 1997, by the culpable driving of a motor vehicle, that is to say by the driving of a motor vehicle, white EA Ford Sedan, ACT registration YUN 066, negligently did cause grievous bodily harm to Fernando Sagal."

"A person who, by the culpable driving of a motor vehicle, causes grievous bodily harm to another person is guilty of an offence punishable, on conviction, by imprisonment for 4 years.

Also relevant are subsections (4) and (5):

(4) For the purposes of this section, a person shall be taken to drive a motor vehicle culpably if the person drives the vehicle - (a) negligently.........

(5) For the purposes of this section, a person shall be taken to drive a motor vehicle negligently if the person fails unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case."

4 It was not in dispute that in the early hours of 27 December 1997, the appellant was in company with Fernando Sagal (his half-brother), Christian Valenzuela (not a relative of his despite the same surname) and Ebert Contreras at La Grange, a bar and night spot at Manuka, a shopping and commercial area in the suburb of Griffith in this Territory.

5 Shortly before 5am there was a mock fight between Ebert Contreras and Christian Valenzuela. The latter, it was conceded, was markedly affected by alcohol. Christian Valenzuela took offence with Ebert Contreras, complaining that the latter had been unduly rough.

6 Ebert Contreras was the owner of the vehicle referred to in the charge, an S-pack Falcon recently acquired by him. Ebert Contreras had driven the vehicle to Manuka. He drove it again after the four men departed from La Grange.

7 There was, also, no dispute that, at about 5am in Oxley Street, Griffith, the vehicle belonging to Ebert Contreras proceeded in an easterly direction towards the intersection of that street with Dawes Street, Griffith. It did so under heavy acceleration, performed a U-turn and then fishtailed along Oxley Street in a westerly direction. It is apparent from marks found on the road surface that the vehicle thereafter skidded towards the right leaving the roadway and striking a tree situated about half-way between the intersection of Oxley Street with Dawes Street and Eyre Street.

8 There was also no dispute that, as a result of that collision, Fernando Sagal was most seriously injured, suffering spinal injuries (inter alia). The appellant suffered a serious traumatic injury to the left side of his forehead above the left eye. That injury resolved uneventfully though leaving significant scarring.

9 Given the nature of the collision and of the driving preceding it, there was no doubt that the vehicle had been driven negligently and that, in consequence of that driving, Fernando Sagal had suffered grievous bodily harm.

10 The sole issue both before her Worship and on the hearing of this appeal was whether it was proved, beyond reasonable doubt, that the appellant had been the driver of the vehicle during the course of its travel on Oxley Street immediately prior to the collision.

11 Ebert Contreras gave evidence that the four men left La Grange, following the mock fight. He said:

"I got into my car and the three of them [ie appellant, Fernando Sagal and Christian Valenzuela] started leading off to Christian's house" (in Oxley Street).

12 Ebert Contreras said that he had had only 4 drinks throughout the evening. The other three, he said, were not sober. They had been drinking together for some time before his arrival.

13 At first, he drove off towards his home. He lived in North Canberra. When he got to approximately State Circle (near Parliament House) or perhaps, National Circuit (opposite the Rydges Capital Hill Hotel) (he was unsure of the precise point), he decided to go back and make amends with Christian Valenzuela following the quarrel they had had. He felt bad about it, he said.

14 He caught up to the other three (his evidence is not entirely clear on this point) "on that light stop" where he found them crossing the road. That could have been Manuka Circle or near thereto. He stopped. He asked them all, he said, to get in the car.

15 Only "George" (the appellant) came over to the car. Christian Valenzuela was still angry with him and would not do so. Fernando Sagal said he would walk with Christian Valenzuela.

"I drove up that street with George in the passenger seat and I said, you know, if he doesn't want to talk I will just drop you home and that is it."

16 He said that the appellant suggested that Mr Contreras speak with Christian Valenzuela alone to "talk things out".

"I drove up I caught up to Christian and Fernando....I turned up and came down to Canberra Avenue and there is a middle strip there and that is where Fernando and Christian was walking. I have opened the door of my car, I walked past Fernando and he said to me, "You know guys don't fight you guy (sic) are friends, you know, talk things out." I said, "Don't worry about it, it will be alright. I will be a minute". And that is when I have gone to talk to Christian, Fernando has walked past me, you know, and I would assume he would have been to my car, yes."

18 Ebert Contreras walked across with Christian Valenzuela to the dirt car park between the Kingston Hotel and East's Rugby Club. The men conversed. However, Christian Valenzuela was not mollified. He "walked off," apparently still angry with Mr Contreras_._

19 It was only in cross-examination that it emerged that whilst he was talking to Christian Valenzuela, Ebert Contreras heard his car "take off." He looked around and saw it 100 - 150 meters travelling "down" Canberra Avenue presumably in an easterly direction (ie not back towards Manuka). He did not see where it went to.

20 He left Christian Valenzuela, he said, in the car park opposite the Kingston Hotel and walked to the latter's apartment block. It seems, from his description he walked down Oxley Street (in any event that would have been a more direct route than proceeding down Canberra Avenue).

21 He stated he went up to Christian Valenzuela's apartment and knocked on the door. At no stage did he see or hear his motor vehicle. Asked why, as he had left Christian Valenzuela back in the car park, he had knocked on his door, he responded:

"Because I would assume that the guys [ie the appellant and Fernando Sagal] would be up there. I was worried because I needed my car to go home."

22 When he emerged, he looked "the other way"(an apparent reference to the direction of Dawes Street and Kingston Oval).

23 He observed what, as he approached, he recognised as a car. Then he recognised it as his. It was crashed against a tree. This observation was, he estimated, 2-3 minutes after he had knocked on Christian Valenzuela's door. He had not before then heard any noises consistent with a vehicle doing a "wheelie" or "doughnut" nor the sound of any impact of the vehicle with the tree, though each of those events must have occurred within a relatively short distance of the block of flats he had entered. He had not noticed the crashed vehicle before he entered that block of flats. Christian Valenzuela's unit did not, however, address Oxley Street directly. It was "about 40 meters" from Oxley Street. It was therefore possible that the vehicle had arrived on Oxley Street after Mr Contreras entered the block of units and crashed before he emerged onto Oxley Street.

24 There were some persons, possibly police, already there, he said, when he arrived. Mr Contreras was wearing a distinctive red vest. He was noticed by some witnesses. The fact that he observed police then present, if accurate, is puzzling. Police did not arrive within 2-3 minutes of the crash. The ambulance, however, had yet to arrive, he said, by the time he arrived at the crash scene. It is quite possible that the vehicle had already crashed before Mr Contreras entered the block of flats but it is somewhat surprising, if so, that he did not notice it. His time estimate, of course, could have been wrong.

25 In cross-examination Mr Contreras denied a suggestion that he had driven the vehicle to Oxley Street and dropped Christian Valenzuela off there. He agreed that he had refused to supply a blood sample when requested by the appellant's solicitor. It does not appear that Mr Contreras was medically examined at the time of the incident. It was not, however, subsequently suggested that he had been in the car when it crashed.

26 Fernando Sagal accepted that, at the time that the four men left La Grange, he was drunk. So also were the others, except Ebert Contreras. Mr Contreras had arrived later than the other three of them and so had drunk less. He recalled the mock fight, which had led to Christian Valenzuela becoming upset with Ebert Contreras. Mr Sagal left La Grange intending to walk home. He and the appellant followed Christian Valenzuela who was a little ahead of them.

27 After that he remembered nothing until he woke up in hospital in Sydney.

"All you remember is that you were definitely not driving that particular night? - Yes."

29 That answer, of course, had no evidentiary value. It was a ridiculous question. The fact that there was no recollection of driving did not permit the witness to "rule out" the proposition that he had been driving the vehicle that night. In any event, it was, literally, untrue. The witness had already agreed that he had driven his own vehicle to La Grange that night.

30 Mr Sagal agreed with Mr Doig for the appellant that his major injury had been a broken neck. He also noticed, he said, after his hospitalisation, some glass embedded in his arm.

31 Christian Valenzuela agreed that he had left La Grange about 4.30am after the dispute he had had with Ebert Contreras. He was, he agreed, "pretty drunk". As to the others, he believed they were also "drunk", though he could not say at "what stage" they were.

32 He was aware that Fernando Sagal had intended to leave his car at Manuka and sleep at his (Christian Valenzuela's) unit that night. There was no suggestion that the appellant would drive Ebert Contreras' vehicle. Nor was he observed doing so.

33 Christian Valenzuela said that he recollected Ebert Contreras talking to him, to apologise, at the Kingston Hotel car park. He was asked where the other two men then were. He said:

"I don't know. They were meant to be behind me because they were walking- I started walking on my own and they were following me, but I didn't see them."

34 It was apparent from cross-examination that Christian Valenzuela had no recollection of any relevant event after commencing to talk with Ebert Contreras in the vicinity of the Kingston Hotel car park.

35 Notwithstanding his lack of recollection he told police he recalled being dropped off at his block of units in Oxley Street that night.

36 Of course, the evidentiary value of that latter statement was very slight. It emerged that Christian Valenzuela had assumed that he had been dropped off because he could not remember how otherwise he had got home. Of course, it also followed that he could not give evidence supporting a view that any of the group of four men (including himself) could be ruled out as having been the driver of the vehicle at the time it went out of control in Oxley Street.

37 It will be apparent from the foregoing that only Ebert Contreras' evidence, if accepted, could rule out any of the four men as having been the driver. He rules himself out. Without accepting some extraordinary hypothesis that Christian Valenzuela was somehow picked up and then drove himself home crashing near his block of flats, Mr Contreras' evidence also rules out any reasonable hypothesis that Christian Valenzuela could have been the driver.

38 It does not, however, enable a conclusion to be drawn as to which of the appellant or Fernando Sagal had been the driver at the relevant time.

39 There were some witnesses who attended the scene following the collision. Forensic police recorded the scene by photographs and took various samples.

40 Mr Gordon Hagen, of 3/22 Oxley Street was awoken about 5am on 27 December 1998. He heard the sound of a car "down near the oval" (that is, on Dawes Street) "done a wheelie down there."

"Then all of a sudden I heard a woomph and with that woomph.... I looked out my window. I look across the road to my right and there was a car into a car (sic-"tree"?)."

41 Mr Hagen then located his slippers and a torch and went out to assist. When he got there, he observed:

" . . .two people in the car and one leaning across the other one and he was saying, "Brother, brother" I turned around and I just looked at them and I seen the one who was in the passenger seat he was frothing at the mouth and with that I left them and I run home."

42 He returned with a towel. The person on the driver's side was still attempting to comfort the person in the passenger seat. It was not disputed that the person on the passenger side was Fernando Sagal and the person leaning over him was the appellant. The appellant was bleeding profusely from the head, including the back of his head.

43 By the time Mr Hagen arrived at the scene there had been an opportunity for any third person, if present, to decamp and for any person able to do so to change position within the vehicle. Even on Mr Hagen's own estimation at least 30-40 seconds elapsed from the "woomph" to his arrival on the scene. That is likely to have been an underestimation.

44 Mr Hagen had said to police that, before the noise of the "wheelie", he had heard someone "dumped" from the vehicle but he was unable to explain what it was he had meant by that. He did recall that, by the time he had reached the crashed vehicle, the driver's door was already open. It was through that open door that he observed the appellant leaning over his brother.

45 Following those events, Mr Hagen noticed a man in a red vest, obviously Ebert Contreras, in the vicinity saying "Oh, my car, or (sic) my car" or the like. He could not, however, be more specific about the appellant's position than saying:

46 Whilst it is apparent that Fernando Sagal was immobile after the collision, the appellant was clearly mobile, though injured and bleeding, and someone had opened the driver's door before anybody else arrived on the scene.

47 Another by-stander was a nurse on holidays in Canberra staying at a nearby unit, Marlene Elizabeth Spry. She heard the crash and arrived on the scene "perhaps five, six minutes" thereafter. Again that estimate is probably not literally accurate.

48 She saw two persons in the front of the car. She proceeded to the driver's side " . . . beside (sic) I knew there had been a driver there and saw the driver in the seat and he was actually about to get out of the seat when I arrived at the door." He was saying, she said, "Oh my god. Oh my god. What has happened?" The "passenger" was not moving.

49 Her brother-in-law and sister came with towels. The three of them were otherwise alone with the two vehicle occupants for about 5 minutes, she said, when a man with a red vest, obviously Ebert Contreras, came and said he was the owner of the vehicle and that the occupants were his friends who "had taken a ride in his car." Although not certain of it, she believed the driver's door was open when she first arrived.

50 This evidence supported Mr Hagen's evidence that the driver's side door was already open before anyone else had arrived at the crash scene. It does not afford any corroboration of the hypothesis that only Fernando Sagal and the appellant had driven off in the car. Ebert Contreras had not seen who was in the car when it took off from near the Kingston Hotel car park. The presence of a third person is not ruled out by virtue of these observations.

51 Further, there is no refutation, from this evidence or that of Mr Hagen, of the possibility of any third person, whether or not Ebert Contreras, decamping from the driver's seat immediately post-collision. It is, also, a curious fact that, if Mr Hagen was, as he inferred, first on the scene (apart from the vehicle occupants), he escaped Ms Spry's attention and that she and her two relatives escaped his attention.

52 There was no statement attributed to the appellant at the scene of the collision where by he claimed to recollect that he had been the driver when the vehicle went out of control.

53 It was, of course, assumed by those attending the accident scene that, as Fernando Sagal was both immobile and in the passenger seat from, at least, some minutes after the collision, he must have been so positioned before it. As the appellant appeared to be the only other occupant of the vehicle, it was assumed by those attending that he had been the driver.

54 Certainly, even when first spoken to by Constable Bretherton at 7am that morning, the appellant apparently had no recollection of the accident or of the events leading up to and for some time following it.

55 That lack of recollection was consistent with the obviously severe injury the appellant had sustained to his head, even without the contribution of alcohol (measured at hospital to be 0.135 mg/ml).

56 Consistently since then, the appellant has claimed to have no recollection of the events surrounding the accident.

57 The prosecution tendered the evidence of Dr Patrick James Delaney. He had, on the admission of the appellant to hospital, filled out a "Trauma Admission" form. On it a box is ticked to indicate the appellant had been the driver and "seat belt" was marked "N" (to indicate not worn). The "description of accident" noted:

"Driver of motor vehicle into tree at high speed.

Pt was sitting beside car when paramedics arrived.

Ambulant."

58 That note does not of course, identify the source of all that information. Some of it undoubtedly came from the attending paramedics. The reference to "high speed" could only have been a guess. It now appears to have been an inaccurate one. Dr Delaney did, however, in a statement dated 27 November 1998, claim that he directly asked the appellant if he had been the driver. He stated that the appellant had admitted to him that he had been.

"PT [patient?] DRIVER OF A VEHICLE WHICH HIT A TREE AT HIGH SPEED. PT NOT RENDERED UNCONSCIOUS PER BY STANDERS. O/A [on arrival] OF FIRST AMBULANCE PT WAS SITTING ON THE FOOTPATH."

60 The reference to "high speed" in each entry suggests that Dr Delaney, not unreasonably, may have assumed that the appellant had agreed that he had been the driver when it was the paramedics who had assumed that he had been.

61 Of course, it is entirely possible that Dr Delaney's recollection is correct. However, in the light of the other evidence as to the appellant's injuries and stated recollections, little safe reliance could be placed on such a statement. Even before and after agreeing he was the driver, the appellant had asked nursing staff "What happened?" He clearly purported on each other previous and subsequent occasions, when the issue arose, not to recollect having driven the vehicle.

62 The appellant himself gave evidence in his own defence.

63 He put his character in issue as to his past driving record. He had only four minor traffic offences. One was for speeding (school zone). The other three involved, on the same occasion, driving an unregistered and uninsured vehicle without a current driving licence.

64 The appellant was told by Constable Bretherton at the hospital that he (the appellant) had been the driver. He was interviewed formally by Constable Bretherton on 2 January 1998.

65 It was clear in the course of that interview that the appellant claimed to have had no recollection of even being in Ebert Contreras' car that night, though he accepted that he must have been.

"Being outside of the car, feeling massive pain and calling for my brother."

67 He could not accept that he would do "wheelies" or "doughnuts" as the crashed vehicle plainly had - "there's no way I would have driven".

Q 196 "Well, were you wearing a seat belt"

A "No"

Q 197 "If you were the driver..."

A "I don't know if I was wearing a seatbelt."

69 He was shown a photograph of the vehicle with heavy impact damage to the passenger side of the windscreen. It was, apparently caused by the appellant's head. The under-dash and steering wheel had also sustained damage.

70 Dr Delaney had found no seat belt or steering wheel impact injury to the appellant. Nor was there any knee damage attributable to under-dash impact. The only injury which Dr Delaney found the appellant had suffered was to his left forehead.

71 In explanation of his statement to police "I would have thought I would have been in the back seat," the appellant said:

"From my recollection of the events we were all walking towards Christian Valenzuela's place. Ebert basically pulls up directly in front of us. I had my brother to my left-hand side and I was on the right-hand side so he pulled up in an area where I was directly next to and that's what I recall.

I see, I see. Do you recall who drove away, who drove the car away? - I recall that Ebert was in the driver's seat, but from that point I can't tell as we drove off."

72 He recalled that Christian Valenzuela did not want to get into the vehicle.

73 In cross-examination, he conceded that he had told police, in his record of interview, that he had no recollection of getting into the car. But he did say:

"I can remember Ebert sitting in the driver's seat. I cannot even remember driving - the car driving off."

74 It is consistent with this that, as he stated he did, Ebert Contreras stopped, intending to pick up his three friends, but only the appellant climbed in. It is not certain from Ebert Contreras' evidence whether the appellant entered the back or front area of the vehicle before it left the area of the Kingston Hotel car park but Ebert Contreras was clear that, initially, the appellant had been in the front passenger seat before he himself left the vehicle to speak to Christian Valenzuela. As Ebert Contreras was talking to Christian Valenzuela, he saw Fernando Sagal walk past him, apparently to get into the vehicle. He did not see through which door Fernando Sagal entered the vehicle or whether the appellant had by then changed his position.

75 Although the injury had not been noticed by Dr Delaney, the appellant agreed that he had sustained a puncture wound to the right knee on the inside, which he accepted must have occurred in the accident.

76 It was suggested to the appellant that he had been the driver of the vehicle at the relevant time. However, that suggestion appeared to be put, not on the basis that he had a recollection of doing so which he was falsely denying, but rather on the basis that, as he could not recall the relevant events, he could not deny that he had been.

77 The eyewitness testimony, assuming that it was to be accepted as the truth, had excluded Christian Valenzuela and Ebert Contreras as having been the driver prior to the crash.

78 That either of Fernando Sagal and the appellant would have driven the vehicle, given it was Ebert Contreras' car and they were intoxicated, is somewhat incredible but the notion that a stranger had decided to illegally use the vehicle with the two brothers in it is even more unlikely.

79 Nevertheless, even accepting Ebert Contreras' account of the events of the evening, he cannot assist to determine whether the vehicle was driven away by the appellant or Fernando Sagal, nor whether the appellant, if not in the driver's seat, was in the front or back of the vehicle.

80 It is true that Fernando Sagal was found in the front passenger seat area. He could not have moved, given his injuries, after the impact. However, whether or not he was flung into that seat as the vehicle travelled from the Dawes Street intersection to its point of impact is open to question. On the other hand, the appellant had a puncture wound on the inside of his right knee, which could have been due to impact with the key in the ignition. That would support the hypothesis that he had been in the driver's seat prior to the impact. It is, however, possible that some other protuberance could have caused that wound. There was no forensic examination of the vehicle's key to implicate it as the cause of the appellant's leg wound.

81 There was, further, no doubt that the appellant's head impacted onto the windscreen with great force. His blood and tissue were embedded in the shattered area. That impact was clearly on the passenger side of the vehicle. There was heavy bleeding according to the photographic evidence, deposited on the passenger seat head-rest. Fernando Sagal suffered no injury which could have caused such bleeding. Its position supported the possibility that immediately after the crash, the appellant's head was resting against the passenger seat head-rest. There were blood smears on the driver's door and sill. It could have been deposited by the appellant opening or closing the door. However, the door had been opened and the appellant might well have emerged from and re-entered the vehicle before by-standers arrived. That evidence is therefore, of little assistance. There also was a large pool of blood on the back seat. Again Fernando Sagal could not have been the source of that blood. That evidence indicated the possibility that the appellant had been in the rear of the vehicle for some time following the collision and before by-standers arrived.

82 Each party attempted, through expert reports from well-qualified accident investigators, to support or refute the hypothesis that the appellant had been the driver of the vehicle at the time of the collision.

83 It is unnecessary to refer in detail to the other forensic evidence. The vehicle had no discernible prior mechanical or other defect. The physical damage and blood staining were noted by the experts and recorded by a police photographer. There was no analysis of blood other than that on the windscreen and the rear seat but it cannot be assumed that the other areas of blood staining were all necessarily from the appellant. Neither could it be assumed that any of the unexamined blood came from Fernando Sagal. Given the latter had been pierced by shattered glass, some blood could well have come from him, though not in any great quantity.

84 There was a departure from the usual order of presentation of expert reports. The defence produced a report dated 3 November 1998, from Colin J Wingrove Consulting Pty Ltd. Mr Colin Wingrove (the author of the report) concluded that it was unlikely that the appellant had been "the driver" at the time of the collision. It was, the report of Mr Wingrove concluded, more likely that the appellant had then been in the rear seat.

85 Mr Wingrove added to this report on 4 November 1998. He dismissed the hypothesis that it was possible for a person in the driver's seat, given the course of the vehicle prior to impact, to be propelled forward against the passenger's side of the windscreen with the considerable force necessary to cause the severe injury to the appellant's forehead and the severe impact damage to the windscreen.

86. The prosecution responded by way of a report dated 25 November 1998 from Sergeant Paul Feenan of the Hunter District Crash Investigation Unit. Sgt Feenan concluded that it was "very possible" that it was the driver who had impacted his head on the windscreen on the passenger side. That impact was, undoubtedly, caused by the appellant. He rejected the hypothesis that the evidence supported the presence of the appellant in the rear seat prior to impact.

87 The course of the vehicle had been represented on a plan drawn by Sgt Noble (Australian Federal Police) from marks found on the roadway. It was slightly inaccurate. The impact was slightly to left of centre of the front of the vehicle, not mid-way as depicted. The marks on the roadway closest to impact in fact ceased just before the centre line of the roadway. They did not extend to the right hand gutter as depicted. The plan was otherwise accepted as accurate.

88 Mr Wingrove, noted the depicted damage to the windscreen of the vehicle, and the injuries to the appellant. He accepted that the blood shown on the photographs was that of the appellant.

"17. The occupant kinetics associated with the collision are supportive of the situation where George VALENZUELA, having been the unrestrained rear seat passenger in the vehicle, had been propelled through the gap between the two front bucket seats in the vehicle and had struck his head on the windscreen due to the forward movement of his unrestrained body. The impact, whilst large enough to move the unrestrained body of George VALENZUELA forward far enough for him to strike the windscreen with his forehead, George VALENZUELA did not pass completely through the gap between the front seats. George VALENZUELA rebounded back into the rear seat compartment after cutting his forehead on the windscreen, George VALENZUELA could have entered the front driver's side of the vehicle, after the collision to attend to his brother, by getting out via the rear seat compartment door and entering the driver's side of the vehicle after the driver decamped the scene."

89 It was unlikely, he believed, that the appellant could have been propelled laterally, then forward so as to impact the windscreen as heavily as he undoubtedly did. It is clear that Fernando Sagal, though also subjected to the same forces and unrestrained, did not impact the windscreen with any great force, if at all.

90 It was significant, Mr Wingrove considered, that the appellant had no chest or abdominal injury from impact with the steering wheel though the latter was damaged in the impact. Any person's body passing laterally and forward as postulated by the prosecution must, he said, have sustained some such injury if starting from the driver's seat.

91 Sgt Feenan assumed from the tyre burn marks that the vehicle had been still rotating as it veered to its right across the centre line of Oxley Street. He noted the vehicle at rest had a quarter turn to the right. He postulated that it may have been the result of an attempt to steer away from the tree.

92 He further postulated that, as the vehicle struck the tree to left of centre, the occupant would be induced by an anti-clockwise, though small, rotation, to be thrown towards the left front. That would be exaggerated if the vehicle was already rotating anti - clockwise. The latter assumption was contrary to the assumption made by Sgt Noble from his observations, though given the lack of tyre marks on the northern side of Oxley Street, it was not possible to completely rule it out.

93 Sgt Feenan also assumed that knee contact from the driver had dislodged the car radio, its surrounds and the cigarette lighter. He rejected Mr Wingrove's explanation of the blood on the rear seat saying:

"Since the position of the seat cushion has been moved forward in the collision, it would be just as possible for a driver bleeding profusely from the left side of the head, to deposit blood into the rear seat from the front seat area."

94 He noted also that the blood identified as that of the appellant seemed to show that the latter had:

"Moved through different areas of the vehicle."

He made no assumption as to how and when the appellant could have done so.

95 Sgt Feenan concerned himself only with the "rear seat passenger" scenario. He rejected it because, in his opinion, it would have been impossible for the appellant to have passed between the two front seats. Further, he asserted, the appellant would have had to impact and damage the rear of those seats to impact the windscreen from the rear seat and no such damage was noted.

96 He also found support for his hypothesis in the puncture wound to the inside of the appellant's knee, consistent in his opinion, with impact against a key in the ignition.

97 Mr Wingrove disputed the assumption that the vehicle was already rotating anti-clockwise when it struck the tree. If he was correct, of course, Sgt Feenan's hypothesis would be shorn of a significant support.

98 Sgt Feenan was first called. He adhered to his report. He conceded that Mr Wingrove was a well regarded expert in the field of accident reconstruction. He had not himself visited the accident scene. He agreed with Mr Wingrove that there was no objective evidence as to the manner in which the vehicle had proceeded from the centre line of Oxley Street to the gutter and then to the tree.

99 Also important to his opinion was his assumption that neither the appellant (nor any one else for that matter) would fit between the front seats if impelled forward by the impact whilst seated in the rear compartment.

100 Sgt Feenan had also assumed a "mounding" of the grass surface next to the vehicle's right rear wheel. He thought he could observe it on the photographs. If present, it supported the hypothesis that there had been at least a small degree of rotation on impact. It has to be said that such "mounding" is not apparent from the photographs taken. Nor was Mr Wingrove able to observe that phenomenon.

101 Sgt Feenan agreed that the radio console damage could have been caused simply by the impact with the tree. It appears that he was led to assume otherwise because he accepted that it was the driver's head which struck the windscreen. If so, the knee of the driver would have had to have impacted into the radio. This was a classic example of assuming that which was to be proved.

102 Mr Wingrove was called for the defence. He said that he had, since his reports were delivered, conducted some experiments using Mr Doig. He had also attended the accident scene between July and October 1998. He had, as a result been able to calculate the extent of anti-clockwise rotation at "approximately four degrees." The angle of deviation from the centre of the road to the tree had been approximately 30 degrees. He agreed with Sgt Feenan that the speed on impact had been less than 50 kilometres per hour.

103 He disagreed with Sgt Feenan that the impact of the vehicle with the edge of the gutter would not provide a "positive launch angle" so as to propel a passenger in the rear seat toward the windscreen. He found confirmation in the photographic evidence that the degree of anti-clockwise rotation on impact had been "very little, if any, rotation."

104 Further, he did not believe that the photographs supported any conclusion that earth and grass was "mounded" at the outer side of the right rear tyre. There was, therefore, no support for the view, espoused by Sgt Feenan, that there had been significant rotation at impact.

105 Mr Wingrove confirmed Mr Doig's suggestion to Sgt Feenan, that he, Mr Doig, had been able to touch the windscreen from the rear seat. (Mr Doig is of shorter stature than the appellant). In answer to Mr Doig, he said:

"I asked you to sit in such a way that your buttocks would be virtually on the front edge of the rear seat if it was in its normal position and that you place a foot on either side of the tail shaft cover which is that raised portion of the floor that goes down the centre of the vehicle. I asked you to sit in such a way that you were physically located approximately between the seats and your arms were resting on the sides of the two front seats. I then asked you to go through the exercise of raising your buttocks off the rear seat but using the pivot from around about your knee level and whether you could strike or touch the windscreen with your head from that position.

And was I able to do that? - Yes you were.

Did you make an observation as to where my feet were whenever my head touched the windscreen? - Your feet remained in contact with the floor of the vehicle.

Whereabouts did you observe my head come in contact with the windscreen? - Your head came in contact with the windscreen below the rear vision mirror and to the point that it was more the upper part of the skull part - of the skull."

Mr Wingrove conducted a further experiment using himself.

" . . .come up out of the driver's seat and not be struck by the steering wheel. Secondly to determine roughly what angle I would have to come up from the driver's seat and go across to strike the window where the damage had been determined and thirdly I went through an exercise of whether I could, from the driver's seat, go - lean - or be rolled through the gap between the seats and just how far rearwards I would lay in order to come across onto the rear bench seat."

" . . .the steering wheel posed a problem in coming out the seat and going across to the passenger side of the vehicle. I found also if I was to come up and go forward the steering wheel was going to be an obstacle as the medical doctor said normal driver's [sic-"drivers"] do incur. I found that the angle to which you would have to move in a lateral direction is approximately 45 to 50 degrees across to where the window was damaged and I found that I could loom through the seats by turning partly sideways and laying back across to around about the centre of the bench seat, a person of my height."

106 He noted also that for the appellant's head to have damaged the windscreen as it had done the angle of strike had to have been nearly perpendicular to the surface of it. The 4° of rotation would, he said, be sufficiently close (86°) to right angles to be consistent with that hypothesis.

107 Nevertheless, Mr Wingrove also added the caveat that, not all data being available, "you can only speculate to some extent."

108 To emphasise the point, in response to questions from her Worship, Mr Wingrove said:

" . . .you can say a normal driver doing that sort of thing would normally be in a sit (sic) that would be exceedingly unlikely for a person to be that far across from the steering wheel going around and to do that, to have that you would still have to have the continuous curve motion to the vehicle. Now the front wheels of the vehicle after they've hit the tree give no indication whatsoever that there is this continuous curving motion to the vehicle. The front wheels are substantially in a forward direction. There's only a quarter of a turn of the steering wheel. So the other physical evidence that is around doesn't even lend any support to that concept that we are very far pulled away from the steering wheel because of a centrifugal force in the curvature of the vehicle.

But you still - none of us really know - - -?---Well no one unless there's a witness to the accident - - -

Unless you're there and unless you can - - - ?--- - - -No one will know."

109 The effect of Mr Wingrove's evidence is, really, that neither he nor Sgt Feenan could have concluded with any certainty from the physical evidence whether or not the appellant had, before the collision, been the driver or a passenger whether in the front left seat or the rear of the crashed vehicle.

110 No consideration was given to testing the hypothesis that, as he vaguely recollected, the appellant had entered the rear of the vehicle (presumably whilst Ebert Contreras was talking with Christian Valenzuela) and Fernando Sagal then entered, directly or not, the driver's seat and drove the vehicle away with the appellant on the rear seat.

111 Nor was any consideration given to the possibility of an intoxicated and unrestrained driver being flung across the vehicle to the left during or following an attempted "wheelie" which the tyre marks indicate was performed. Nor was any consideration given to the consequence of a rear seat passenger attempting to intervene during the uncontrolled manoeuvring of the vehicle.

112 The major difference between Mr Wingrove and Sgt Feenan was that the latter assumed a considerable rotation of the vehicle to the left, following the "fishtailing". Mr Wingrove assumed a slight curve.

113 There was no evidence from road markings to support Sgt Feenan's assumption. It seems he made it in an attempt to explain the otherwise unlikely assumption that a driver, on impact, could strike with apparently perpendicular force, the passenger's side of the windscreen.

114 Sgt Feenan's other premise, that no rear seat passenger could impact the windscreen, was further tested on a view attended by the parties, their legal representatives and her Worship. The view confirmed Mr Wingrove's evidence that the premise adopted by Sgt Feenan was unquestionably false.

115 Having reserved, her Worship handed down her decision on 24 May 1999.

116 Her Worship correctly noted that the prosecution had to establish the charge beyond reasonable doubt. As she was entitled to do, her Worship concluded that the tyre marks photographed on the roadway were linked to Ebert Contreras' motor vehicle. As a result, she concluded that the vehicle had been driven in a negligent manner to the extent that the driver had failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed. That conclusion was not challenged.

"Likewise I am satisfied on the evidence before me that the injuries sustained by Fernando Sagal being a broken neck and resultant paralysis constitutes grievous bodily harm and was sustained by him in the car accident in which he was a passenger seated in the front seat of that car."

118 In drawing the conclusion emphasised, her Worship had assumed the very fact in issue. Whilst it had been expressed as being whether the appellant was the driver or a passenger, it logically embraced the issue whether Fernando Sagal had been a passenger or the driver.

119 Her Worship noted that Ebert Contreras' evidence supported the view that as he left his vehicle to speak with Christian Valenzuela, the appellant "had been in the car in the passenger seat". Mr Contreras saw Fernando Sagal walk past him and towards the vehicle but did not see him enter it. It followed, of course, that he did not see whether the appellant had changed his position in the vehicle before it took off.

120 Her Worship concluded that Ebert Contreras could not have been the driver, not only because of his evidence to that effect but also because he showed no sign of injury after the collision. That conclusion was fairly open on Ebert Contreras' evidence, though, of course, his lack of injury was not corroborated by any medical examination.

121 The evidence of Fernando Sagal, was corroborative of Ebert Contreras' evidence as to the events of the earlier part of the evening though it was, of course, of no assistance thereafter. The evidence of Christian Valenzuela, though tending to eliminate him as an occupant of the vehicle was equally of no assistance in determining which of Fernando Sagal and the appellant had been the driver of the vehicle at the relevant time.

122 Her Worship noted that Mr Hagen had observed the appellant in the driver's side of the vehicle leaning over Fernando Sagal who was in the front passenger's seat. That was the situation observed by Ms Spry who was (apparently) later on the scene than Mr Hagen, if the estimated times of arrival after impact each gave was accurate. Further, there was the evidence of Dr Delaney that he was informed by the appellant that the latter had been the driver and that no seatbelt had been worn.

123 As to Sgt Feenan's evidence, her Worship commented:

" . . .This is certainly the impression that I got from his evidence was his view and his belief and his opinion is that the defendant was the driver."

124 Against that of course was the evidence of Mr Wingrove. Whilst the appellant had some recollection of the events leading to the collision, it was far from complete and it was, clearly, open to her Worship to regard it as unreliable not so much as a matter of credit, but because of the trauma to which he had been subjected, combined with his then state of intoxication.

125 That recollection was as expressed by him in his evidence:

"I recall getting into the back seat and I recall Ebert was driving and that Fernando I think got into the passenger's seat, but I cannot be sure."

He went on:

"The next thing I recall is not a visual recollection, it was more a physical recollection, pressure on my forehead from a blow from the impact on the windscreen."

" . . .has variously denied, admitted and then denied being the driver of the car. His position at the end of the day appears to be, at least to me, "I don't know who was the driver, but I don't think that it was me." "

127 However, it does not seem, in context, that her Worship was doubting the genuineness of the appellant's stated lack of recollection. She was merely drawing the obvious conclusion that any purported recollection the appellant had by the time he gave evidence could not be relied upon as being accurate.

128 Her Worship then proceeded to consider Mr Wingrove's evidence. She observed that Mr Wingrove:

" . . .based his findings and this is his evidence, based his findings on photographs and sketch plans drawn by investigating police at the time of the accident and one of the sketch plans was - or became exhibit 22. However, his evidence in that exhibit 22, the sketch plan is not accurate yet it would seem throughout the evidence given by Mr Wingrove in this case he bases much of his hypothesis, measurements, his evidence on his movements and the angles and the rotations and indeed his ultimate main conclusion on this, what he himself said was an inaccurate sketch."

129 This is a somewhat puzzling observation. In the first place, the inaccuracy was merely in the continuation of tyre marks from the centre of Oxley Street to the tree and the depiction of the area of impact on the vehicle. Those inaccuracies had been noted and taken into account by Mr Wingrove. Second, the same sketch plan was relied on for the same range of observations by Sgt Feenan, who was also aware of the inaccuracies in question.

"In a motor vehicle accident sometimes you cannot give an explanation for the motion of the body in a car."

131 That was not, in fact, a direct quote, though it does accurately reflect the reservations Mr Wingrove expressed. Nevertheless, unless her Worship was to reject that reservation as inaccurate, it applied equally to the hypothesis advanced by Sgt Feenan.

"Now in order to find that the defendant was not the driver I would need to reject most, if not all, of the prosecution evidence by finding it either not convincing or not reliable or indeed both."

" . . .I prefer the evidence of [Ebert Contreras, Gordon Hagen and Dr Delaney] to that given by the defendant."

133 That observation is also puzzling. The only evidence of those persons which could be regarded as being in conflict with that of the appellant is that of Dr Delaney and that only to the extent that he believed the appellant had told him that he, the appellant, had been the driver of the crashed vehicle.

134 Her Worship observed that there were only 4 persons who could possibly have been the driver.

135 That latter conclusion seems to me to have been a reasonable one. To postulate that a fifth person might have entered the vehicle with only the appellant and Fernando Sagal otherwise in it, who then drove it to the point of impact and decamped unobserved seems to me to be an unreasonable hypothesis.

136 As Barwick CJ, McTiernan and Owen JJ observed in Green v R [1971] HCA 55; (1971) 126 CLR 28,32, a trial judge can, consistently with proof beyond reasonable doubt, properly instruct the jury (or himself or herself, if there is no jury):

" . . .that fantastic and unreal possibilities ought not to be regarded by them as the source of reasonable doubt."

137 Her Worship noted that there was no evidence to support the hypothesis that Christian Valenzuela had driven the vehicle from the Kingston Hotel car park. Though it was Ebert Contreras' vehicle, the possibility of him having been the driver was excluded by his evidence and the lack of any observation of injury suffered by him.

138 The latter consideration was not a strong one as I have already observed. Nevertheless, Ebert Contreras gave evidence that he was not the driver. There was no positive evidence suggesting otherwise. It was, therefore, open to her Worship to have accepted his evidence and thus be persuaded beyond reasonable doubt that he had not been the driver. That conclusion, given her Worship's advantage in seeing and hearing his evidence, should be accepted as correct.

139 The remaining two possibilities were briefly disposed of. Her Worship said:

"Fernando Sagal was not the driver of the car."

140 Such a conclusion, however, could only have followed if the possibility that the appellant was not the driver had been excluded beyond reasonable doubt, though if it was proved beyond reasonable doubt that Mr Sagal had not been the driver it would have left open only the hypothesis that the appellant had been the driver.

141 Whilst noting Mr Wingrove's view that the appellant's lack of any chest injury was not consistent with his presence behind the wheel at impact, her Worship continued:

"Now again I say that in order - rather the third point is in order to reject the prosecution order (sic) I need to reject the rational inference from the evidence which points squarely at the defendant and be persuaded by expert opinion evidence from Mr Wingrove which I find to be based not on evidence but on speculation."

142 Her Worship then referred to Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, to support a proposition that (as her Worship expressed it):

" . . .where there is conflict between expert testimony the task of the tribunal of fact is to apply logic, to evaluate the opinion and to determine where the truth lies."

143 Whilst accepting that the essential elements of the case had to be established beyond reasonable doubt, her Worship observed that:

" . . .This does not mean that every fact, every piece of evidence relied upon to prove an element by inference must itself be proved beyond a reasonable doubt."

144 That is, of course, correct. It is a proposition derived from the case of Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 to which her Worship referred.

145 However, there is an important qualification to that latter statement. It is that, if it is necessary to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be reached beyond reasonable doubt.

146 It follows that the conclusion that the appellant had to have been the driver required a cogent explanation. It had to be proved beyond reasonable doubt and the reasons leading to that conclusion explained. So, also, was it necessary for any subsidiary findings of fact necessary to enable the ultimate finding to be made to be proved beyond reasonable doubt. Her Worship, to that end, merely stated:

"I find that the evidence pointing to the defendant is reliable, it is consistent, it is compelling, it is strong, it is rationale (sic) and it is logical."

147 Thus her Worship expressed herself as satisfied that the offence had been proved.

148 The appellant was then convicted, sentenced to 52 periods of detention and his driving licence cancelled for 3 years.

149 Notice of Appeal was filed 8 July 1999, thus suspending the enforcement and execution of the conviction and sentence (see s 216, Magistrates Court Act 1930). The grounds cited were:

"1. That the learned Magistrate erred in drawing inferences when the evidence before her did not permit such importance to be drawn.

2. That the learned Magistrate erred in approaching the determination of the Appellant's guilt on an incorrect basis and contrary to the law.

3. That the learned Magistrate erred in failing to give any or any adequate weight to the evidence of Colin Wingrove.

4. That the learned Magistrate erred in failing to give any or any adequate weight to the forensic evidence in the case.

5. That the learned Magistrate erred in giving undue weight to the evidence of Dr Patrick Delaney.

6. That the learned Magistrate erred in giving undue weight to the evidence of Sergeant Feenan.

7. That the learned Magistrate erred in finding the Appellant was guilty beyond reasonable doubt."

150 In the course of submissions, the appellant identified 4 separate issues arising from these grounds of appeal:

That her Worship misdirected herself as to the criminal onus and standard of proof.

That in concluding that the evidence proved the appellant's guilt beyond reasonable doubt her Worship had failed to identify and explain her rejection of a reasonable hypothesis consistent with innocence, namely, that the appellant had not been the driver.

That in assessing Mr Wingrove's evidence as speculative but failing to apply the same test to Sgt Feenan's evidence, her Worship had erred in concluding that the latter's evidence could be used to support the prosecution case but that Mr Wingrove's evidence could not be used to support the defence case.

That her Worship should not have given weight to Dr Delaney's evidence as to the alleged admission by the appellant.

151 The objection was not that her Worship did not formally enunciate the correct rule but rather that she appeared neither to understand nor to apply it.

152 That submission was founded on her Worship's statements that:

"Now in order to find that the defendant was not the driver, I would need to reject most, if not all of the prosecution evidence by finding it not convincing or not reliable or indeed both.

and:

. . .in order to reject the prosecution order (sic) I need to reject the rational inference from the evidence which points squarely at the defendant."

153 As expressed, those statements are clearly wrong. In fact, as appears from an examination of the evidence given, even if accepted at face value, there is no need to reject any of the prosecution evidence as to factual observations except part of the evidence of Dr Delaney in order to entertain a reasonable doubt as to whether the appellant had been the driver. Even Dr Delaney's evidence does not, of itself, suffice to dispel such a doubt. Sgt Feenan did no more than express an opinion that it was not impossible for the appellant to have been the driver, despite the fact that he impacted the windscreen of the passenger side. He was of the view it was not possible for him to have been a rear seat passenger and impact the windscreen. There was, however, no onus upon the appellant to disprove the inference that he had been the driver. The mere fact that the evidence disclosed that it was possible, even likely, that he had been the driver is insufficient to enable that inference be drawn beyond reasonable doubt.

154 The expert evidence aside, a conclusion that the appellant had been the driver, when he had not earlier been seen in the driver's seat but only in the passenger's seat (Ebert Contreras) could only be drawn from the fact that Fernando Sagal's unrestrained body was present in the passenger's seat after the collision rather than that of the appellant.

155 To conclude that the appellant had been the driver would require rejection of the possibility that Fernando Sagal had been the driver. That hypothesis could be rejected only if it was shown to have been unreasonable.

156 The High Court, in Knight v R [1992] HCA 56; (1992) 175 CLR 495, pointed out that if more than one hypothesis may be perceived as an explanation for the event in question, then even if the explanation consistent with innocence is perceived as the least likely hypothesis, the accused cannot be convicted unless and until that hypothesis has been excluded.

157 It is, as the High Court noted in Van Leeuwen v R (1981) 36 ALR 591, of fundamental importance that the tribunal of fact, be it a jury or not, be correctly directed as to the standard and onus of proof and gives true effect to the presumption of innocence.

158 Thus in Robinson v R [1991] HCA 38; (1991) 180 CLR 531, the High Court upheld an appeal where the trial judge had told the jury that, in assessing the credit of witnesses, the interest of the accused in the outcome of the case was relevant, and:

"the accused has the greatest interest of all the witnesses" (at 534).

159 Their Honours (Mason CJ, Brennan, Deane, Toohey, McHugh JJ), at 535, said:

"Notwithstanding the correctness of his Honour's directions concerning the onus and standard of proof, however, it is impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness in the outcome of the case . . .his Honour's directions had the effect that the evidence of the appellant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused . . .his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty."

160 The same point was more recently made by the High Court in Palmer v R [1998] HCA 2; (1998) 193 CLR 1. The accused had been asked in cross-examination whether he could suggest any reason for the complainant to invent the allegations she had made against him.

161 Brennan CJ, Gaudron and Gummow JJ acknowledged that the presence of a motive to lie possessed by a complainant was clearly relevant (7):

"But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant."

162 In their Honours' opinion the contrary view, in effect, invited acceptance of an allegation because the accused could not offer a reason to doubt it. It speculates on unproven facts and devalues the presumption of innocence. It effectively diminishes the requirement of proof beyond reasonable doubt.

163 Kirby J agreed with the majority on this point (see 42-44).

164 It does not follow that her Worship's conclusions were incorrect simply because she had mis-stated the correct test for evaluation of the evidence.

165 However, it does not instil confidence in the correctness of that evaluation judged against the onus and burden of proof required in a criminal matter.

166 This objection is based on her Worship's observation (supra):

"I find that the evidence pointing to the defendant is reliable, it is consistent, it is compelling, it is strong, it is rational and it is legal. And based on that I am satisfied beyond reasonable doubt . . .the offence [is] proven."

167 This statement, it is submitted, evidences the application of the incorrect principles that her Worship had enunciated.

168 It is not enough merely to be satisfied that the prosecution case is cogent and compelling. Any alternative hypothesis, negative or positive, consistent with innocence must be excluded beyond reasonable doubt, even if less cogent and less compelling than the hypothesis advanced by the prosecution.

169 In any event, with the exception mentioned already, there was no dispute as to the evidence of the relevant witnesses. It was a circumstantial case. The dispute was whether the inference open from the relative positions of the appellant and Fernando Sagal in the vehicle when first observed allowed only one inference. That is, that the appellant had been the driver.

170 The ambulance officers had given evidence that the appellant denied being the driver. They did not accept his denial and reported that he had been.

171 Shortly after Dr Delaney completed the Trauma Admission form, the appellant again denied that he had been the driver. That denial was apparently based on a lack of recollection. He had also asked staff whether he had been the driver. That indicated a lack of any positive recollection. It had been suggested to him at the accident scene that he had been the driver.

172 Given his intoxication and head injury, even if the appellant had told Dr Delaney that he had been the driver, the admission clearly would have been unreliable. He could simply have been repeating the suggestions already made to him. No inference as to the truth of the inference from the reported statement to Dr Delaney, ie that the appellant had been the driver, could have been safely drawn. Section 137 Evidence Act 1995 (Cth) thus would have required its exclusion had it been objected to. In any event, it should have been accorded no appreciable weight.

173 It is not apparent what weight her Worship gave to this "admission." Her reasons do not elaborate upon the question.

174 The evidence of each of the two experts has been summarised above.

175 The effect of Mr Wingrove's evidence is that it was possible that the appellant had been in the rear seat of the vehicle prior to the collision. That possibility he considered more likely to have been the fact than the possibility that the appellant had been behind the steering wheel and in the driver's seat.

176 He did not examine the hypothesis that Fernando Sagal had been behind the steering wheel. However, he did refute the fundamental objection of Sgt Feenan to the hypothesis that the appellant had been in the rear seat, that is, that an unrestrained rear passenger could not have impacted on the windscreen as the appellant did.

177 Sergeant Feenan's evidence did not assist to rule out the hypothesis that the appellant had been in the back seat. It is true Sgt Feenan considered it more likely that the appellant had been in the driver's seat. However, his explanation of forceful rotation to fling the driver sideways to the left whilst also being flung forward was not supported by any objective signs. Indeed, it was contrary to the apparent course of the vehicle as depicted by Sgt Noble, even after allowing for the inaccuracies in his diagram.

178 In any event, such force would equally be able to fling Fernando Sagal from the driver's seat to the passenger side. There was damage consistent with someone so moving as both experts conceded.

179 But the most telling observation to come from Mr Wingrove was that in a motor vehicle accident, with unrestrained bodies possibly being flung to the left and forward as well as backwards during the course of this vehicle's progress until it crashed, "sometimes you cannot give an explanation for the motion" of the bodies.

180 That observation was not challenged by Sgt Feenan save on the unsustainable and indeed factually flawed basis that a rear seat passenger could not possibly strike the windscreen even if unrestrained.

181 It seems that her Worship recognised that the expert evidence did not assist to resolve any doubt as to where the appellant had been seated in the vehicle. Hence her Worship's comment, that:

" . . .where there is conflict between expert testimony the task of the tribunal of fact is to apply logic, to evaluate the opinion, and to determine where the truth lies."

182 Her Worship then referred to Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 for support for this proposition.

183 That reliance was, unfortunately, misplaced. Ramsay v Watson was a civil case. The issue in that case was whether lead poisoning had caused the plaintiff's ill-health. Whichever inference was the more probable could be accepted even if the less probable inference could not be excluded as a reasonable possibility. Not so in a criminal matter.

184 Further, the case is authority for the rule that if an expert opinion is to be relied upon, the facts upon which it is based must be proved. In Ramsay v Watson they were not.

185 The case does support her Worship's observation to the extent that the mere fact that an opinion of an expert is tendered does not mean it must be accepted. A foundational fact may be disproved or subjected to doubt. The opinion expressed might be questioned by another expert opinion, which seems soundly based. But it is a grave error simply to take the view that one or the other must be accepted or to imply that "the truth" must be found as if "the truth" must be either the prosecution or defence case. Of course, it is important to declare the truth if possible, but the onus and standard of proof often means, in a criminal case, that what is believed to be "the truth" is not established beyond reasonable doubt.

186 As Wells J noted in R v Calides (1983) 34 SASR 355, 358-9:

" . . .There is the third possibility which must never be overlooked, and that is that the jury, after a full and careful consideration, may arrive at the result that they are unable to say where the truth lies, or that they are unable to say who is telling the truth."

187 The point has been emphasised time and time again that, in a criminal case, it is not a process of deciding whether to accept or not a defence case. Even if the prosecution case is, even strongly, preferable, the tribunal of fact must not convict if the evidence raises a reasonable doubt on an issue relevant to guilt - see Liberato v R [1985] HCA 66; (1985) 159 CLR 507.

188 That is so whether the issue is one of credit, or of drawing an inference from undisputed primary facts, as it was in R v Schonewille [1998] 2 VR 625.

189 The most fundamental error was her Worship's assumption that Fernando Sagal had not been the driver. Of course, had Mr Sagal been found strapped in the front passenger seat immediately following the crash that conclusion would have been a reasonable assumption. However, he was unrestrained. The hypothesis that he had not been in the front passenger seat before the collision was not addressed by either expert.

190 As a result a doubt arose as to the relative positions of the appellant and Fernando Sagal, not only from Mr Wingrove's evidence but also from the fact that the first independent witness to arrive on the scene did not arrive before the appellant had had an opportunity to exit and re-enter the vehicle. Even had there been an observation that, immediately after impact, the appellant was on the driver's side and Fernando on the passenger side of the vehicle, that observation, though raising a stronger inference against the appellant, would not exclude the possibility that upon impact, Fernando Sagal had been flung to the left (perhaps striking a glancing blow to the windscreen) and that the appellant had been flung forward striking the windscreen through the gap between the seats falling then on top of Fernando Sagal.

191 Of course, it must be said in fairness to her Worship that counsel did not draw her Worship's attention to that issue in any clear manner. They directed attention only to the hypothesis that the appellant might have been seated on the rear seat at the time of the erratic driving leading to the collision. Her Worship was allowed to assume that there was no issue as to Fernando Sagal's presence on the front passenger seat at all material times.

192 There was also a fundamental error in her Worship's decision to disregard Mr Wingrove's evidence and to (apparently) place reliance on Sgt Feenan's evidence.

193 I have already noted that Sgt Feenan's opinion was tainted by fundamentally erroneous assumptions. Her Worship's decision to place no weight upon Mr Wingrove's contrary opinion was based on an erroneous assumption that he had relied on a sketch plan which contained errors relevantly tainting his opinion. I have already noted that this was not the case.

194 It follows that the finding of guilt entered by her Worship cannot be sustained and must be set aside.

195 The evidence in this case is such that little or nothing turns on the veracity of witnesses. Even assuming the truth of Ebert Contreras' assertion that he was not the driver (and there is nothing to suggest it ought not to be accepted), there still remains doubt as to which of Fernando Sagal and the appellant had been the driver. Whilst their respective positions following the collision, in the circumstances, reasonably suggests that it is more likely that the appellant had been the driver, it does not establish that conclusion beyond reasonable doubt. Nor does any of the other evidence assist to resolve that doubt.

196 Accordingly, in my view, rather than direct a new trial it seems to me that the appeal should simply be upheld, a verdict of acquittal entered and the information dismissed in consequence of her Worship's findings and orders being set aside.

I certify that the preceding one hundred and ninety seven (197) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice

Counsel for the Appellant: Mr S Tilmouth QC with Mr A Doig

Solicitor for the Appellant: Porter Parkinson and Bradfield

Solicitor for the Respondent: ACT Director of Public Prosecutions