Director of Public Prosecutions v Cristy Lee Holder
[2022] ACTSC 336
•5 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Holder |
Citation: | [2022] ACTSC 336 |
Hearing Dates: | 28 – 29 November 2022 |
DecisionDate: | 5 December 2022 |
Before: | Baker J |
Decision: | The verdicts are as follows: |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – judge alone verdict – dangerous driving – drive at police – police pursuit of vehicle – whether accused driver or passenger of vehicle – lies as consciousness of guilt – circumstantial case – Liberato direction |
Legislation Cited: | Crimes Act 1900 Road Transport (Driver Licensing) Act 1999 Road Transport (General) Act 1999 Road Transport (Safety and Traffic Management) Act 1999 Supreme Court Act 1933 |
Cases Cited: | Edwards v The Queen [1993] HCA 63; 178 CLR 193 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Fleming v The Queen [1998] HCA 68; 197 CLR 25 Mahmood v Western Australia [2008] HCA 1; 232 CLR 397 Sidaras v The Queen (No 2) [2020] ACTCA 39 |
Parties: | ACT Director of Public Prosecutions ( Crown) Cristy Lee Holder ( Accused) |
Representation: | Counsel A Chatterton ( DPP) E Chen ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ( Accused) | |
File Numbers: | SCC 81-82 of 2022 |
BAKER J
Introduction
Shortly before midnight on 22 May 2021, Senior Constable Paul Robens, who was on duty as a police motorcyclist attached to Road Policing ACT, saw a dark Mazda 3 sedan with New South Wales number plates CV 79 GW (“the Mazda 3”) travelling at speed on Barraclough Street in Monash. Senior Constable Robens performed a U-Turn and activated his emergency lights. The Mazda 3 did not stop, but accelerated away from the officer. Over the following ten minutes or so, the Mazda 3 was seen by police officers and other road users to be driving at speeds approaching 180km/hr, at times without headlights on, driving through red lights, and driving on the wrong side of a major road. During this time, the Mazda 3 very nearly collided with a number of vehicles, including a police car, before losing control at a roundabout near Isabella Pond in Monash.
The prosecution alleges that the accused, Cristy Lee Holder, was driving the Mazda 3 at the relevant time. The accused has been charged with the following offences:
(i)Count 1: Aggravated dangerous driving, contrary to ss. 7 and 7A of the Road Transport (Safety and Traffic Management) Act 1999 (“RT (SM) Act”) (first time offender).
(ii)Count 2: Aggravated dangerous driving, contrary to ss. 7 and 7A of the RT (SM) Act (repeat offender).
(iii)Count 3: Drive motor vehicle at police, contrary to s. 29A of the Crimes Act 1900.
On 1 June 2022, the accused elected to be tried by judge alone.
The trial came before me for hearing on 28 November 2022. On that date, the accused was arraigned and pleaded not guilty to all charges.
At the outset of the trial, Mr Chen, who appeared for the accused, helpfully indicated that the accused did not dispute that the Mazda 3 was driven dangerously within the meaning of ss. 7 and 7A of the RT (SM) Act or that the Mazda 3 was driven at police within the meaning of s. 29A of the Crimes Act 1900. The accused also accepted, through Mr Chen, that the prosecution had established that she was in the Mazda 3 at the time of the alleged offences. Mr Chen indicated that the only issue in dispute was whether the accused was the driver of the Mazda 3, rather than a passenger of that vehicle.
On 29 November 2022, I retired to consider my verdicts. I now provide the following reasons for my verdicts, which include the principles of law I have applied and the findings of fact that I have made, as required by s. 68C(2) of the Supreme Court Act 1933; see also Fleming v The Queen [1998] HCA 68; 197 CLR 250.
The Evidence
The Mazda 3
At approximately 11:44pm on 22 May 2021, Senior Constable Robens was on general patrol duties in a marked police motorcycle, when he observed the Mazda 3 travelling at speed on Barraclough Street in Monash.
Senior Constable Robens conducted a U-Turn to intercept the car. He then followed the Mazda 3 from Clive Steele Avenue onto Ashley Drive, where he activated his emergency lights, including his forward facing, rear facing, side facing lights and his pole light. At this point, Senior Constable Robens said the Mazda was going “as fast as [he could] imagine a Mazda 3 going”. In attempting to close the distance between the vehicles, Senior Constable Robens was travelling at 180 km/hr. The Mazda 3 was “canting heavily” and taking lines that suggested that the driver was not experienced at driving at speed.
Senior Constable Robens saw the Mazda 3 go straight through the roundabout that intersects with Isabella Drive. He continued to pursue the Mazda 3 towards the intersection between Isabella Drive and Clift Crescent, where he recorded the car’s registration plate.
10.The lights at Clift Crescent were red when the Mazda 3 approached, but instead of slowing, the Mazda accelerated through the red light. Senior Constable Robens decided that it was too dangerous to continue the pursuit and de-activated his lights and reduced his speed. The driving of the Mazda 3 to this point is the conduct that gives rise to Count 1.
11.After deactivating his lights, Senior Constable Robens continued to follow the Mazda 3 as it turned left onto Johnson Drive into Ware Street. At this point, Senior Constable Robens lost sight of the vehicle.
12.Senior Constable Robens next briefly saw the Mazda 3 driving with no lights on at Tharwa Drive, towards Drakeford Drive, and then later travelling down Mentone View, towards where he was stationed on Loureiro Street. Senior Constable Robens said the Mazda 3 was approaching him at about 80 km/h in a 50 km/h residential zone, and that he had to take evasive action to avoid a collision. This driving, and that which follows, is the conduct of the Mazda 3 that gives rise to Count 2.
13.After this incident, Senior Constable Robens performed a U-Turn. He then saw the Mazda 3 travelling in a northerly direction on Drakeford Drive on the southbound lanes, that is counter to the flow of traffic. He continued to travel north on Drakeford Drive but did not activate his lights or attempt to intercept the Mazda 3. He lost sight of the vehicle where Tharwa Drive changes into Drakeford Drive.
14.At around this time, Acting Patrol Sergeant Fergusson, who had been informed of the pursuit via police radio, stopped at the intersection of Johnson Drive and Drakeford Drive on the south-eastern side of the roundabout and activated his emergency police lights to prevent southbound traffic exiting the roundabout. Soon after he noticed the Mazda 3 travelling towards him in a northerly direction in the southbound lanes.
15.Acting Sergeant Fergusson angled his police vehicle 90 degrees to face the oncoming vehicle, so as to maximise the width of his emergency lights, placing his vehicle so that it straddled the centre line of the two lanes.
16.The Mazda 3 continued towards Acting Sergeant Fergusson, who became concerned that the Mazda was not going to stop. He quickly turned his police car onto the median strip to avoid a collision. He said if he had not done so, there would have been a head on collision. It is this conduct of the Mazda 3 that gives rise to the offence alleged in Count 3.
17.Both Acting Sergeant Fergusson and Senior Constable Robens then separately continued north on Drakeford Drive towards Bonython, where they noticed a number of vehicles pulled over. Various witnesses told them that they were forced to drive off the road onto the footpath to avoid a collision with the Mazda 3. All of the drivers were shaken. One driver was hysterical and in tears.
The Mazda 3 collides into a barrier near the embankment of Isabella Pond
18.Shortly after this time, Senior Constable Robens received a radio call informing him that the Mazda 3 had crashed at the intersection roundabout between Drakeford Drive and Isabella Drive. When he arrived, other police patrol cars were already there. Debris was strewn across the road.
19.The Mazda 3 was positioned on the grass near the embankment of Isabella Pond. Senior Constable Robens said that the Mazda 3 appeared to have lost control at the roundabout and slid sideways across the grass from the north side of the roundabout to near the end of Isabella Pond.
20.At the time of police arrival, no one was in the car.
21.Senior Constable Robens looked in the Mazda 3 and saw a purse and phone on the front passenger seat. He said one of the other police patrols had already tried to identify the driver and that a proof of age card in the accused’s name had been located. He also observed slippers in the footwell of the driver's seat and scattered belongings. Senior Constable Robens said that there was “nothing that indicated to me that we were looking for more than one person.”
22.Constable Brettell also looked in the vehicle. He took six photographs of the scene, none of which were particularly clear in the copies tendered in the prosecution case. Regrettably, the only clear photographs of the inside of the Mazda 3 that are in evidence were taken after the car had been towed to the Exhibit Management Centre. Those photographs show two pairs of pink fluffy slippers in the car, one in the driver’s footwell and the other in the footwell of the back seat of the car. However, at the time those photographs were taken, the contents of the car had been moved, both as a result of the towing, and as a result of police examining various items in the car.
23.Nonetheless, Constable Brettell gave evidence that the fluffy pink slippers that he saw in the driver’s footwell were "wedged" behind the driver's seat pedals on his arrival at the collision, which was shortly after the collision occurred. Constable Brettell agreed that the slippers were “directly behind the pedals”, such that they would have interfered with the driving of the Mazda 3.
24.Constable Brettell also said that the accused’s identification card was on the actual seat of the front passenger seat. A handbag was in the front passenger's seat footwell. Constable Brettell said that no one had taken photographs of where the handbag, purse or identification card were located in the vehicle and that he only performed a cursory search. It is not clear from the evidence whether this identification card had been removed from the handbag or purse by other police prior to Constable Brettell’s arrival.
25.Police were not able to locate the driver of the Mazda 3 in the immediate area of the collision. Senior Constable Robens said that he did not check the surrounds of Isabella Pond for shoes or footprints.
After the collision, Constables Rebecca Davidson and Benjamin Chown attended an address in Monash where police believed the accused lived with her then partner, Mr Shane Condon-Reid. The officers spoke to Mr Condon-Reid’s mother, Ms Condon. The accused was not there. Officers did not see anyone at the house other than Ms Condon.
27.Senior Constable Robens and other officers continued to canvass the area surrounding Isabella Pond over the next hour. They did not locate the driver of the Mazda 3 over this time.
The accused appears at an apartment on the other side of Isabella Pond
28.Shortly before 1 am on 23 May 2021 (that is, a little after an hour after the collision), Ms Vaqewa, who lived in an apartment in William Hudson Crescent, Monash, heard a female yelling outside. William Hudson Crescent is on the opposite side of Isabella Pond to where the Mazda 3 had crashed.
29.Ms Vaqewa woke her daughter, Ms Saqa, and they looked outside together. They could not see anyone. Ms Vaqewa went back to watching television and her daughter went back to bed.
30.Five minutes later, Ms Vaqewa heard a knock on the door. When Ms Vaqewa opened the door she saw the accused, who she did not know. The accused was dripping wet and cold, wearing “coloured pants and a t-shirt like pyjamas”, with no shoes. The accused did not have a bag, wallet or phone.
31.Ms Vaqewa brought the accused into the house, turned on the heater and gave her a sarong and a towel. Ms Vaqewa then woke her daughter Ms Saqa. Ms Saqa asked the accused whether she was the person who had called for help. The accused replied that she was that person, and that she had been hiding in a flower bed. She said that she was wet from the sprinklers in the flower bed. Ms Saqa and Ms Vaqewa each thought that was strange, because the sprinklers turned off at 7pm and because the accused was soaked through. The accused told Ms Saqa that she had been assaulted by her partner, a man called ‘Shane’, who lived in the same apartment complex as Ms Vaqewa. Ms Saqa thought this was also strange, because the occupants of the unit block were all of ethnic backgrounds.
32.It is now accepted on behalf of the accused that each of these statements were lies.
33.The accused asked Ms Saqa to call her mother. Ms Saqa said that the accused was “absolutely terrified I was going to call police.”
34.A triple 0 call was made to police (it is not clear by whom), and Constables Chown and Davidson subsequently attended the apartment. When the officers arrived at the apartment, the accused “freaked out” and said “don’t open the door”. The accused then jumped up and hid in the hallway near the toilet.
35.The officers then came into the apartment and had a conversation with the accused. Ms Saqa stated that the accused provided a name to the officers that was “completely different” to the name that she had given Ms Saqa and her mother. Shortly after this, Senior Constable Robens arrived. Ms Saqa stated that when this officer told the accused that he knew that she had “crashed near the pond” because she had left her identification and slippers in the car, the accused’s demeanour “completely changed”, from being “quiet and mild” to “argumentative and hostile.”
36.About half an hour later, the accused was arrested and cautioned and taken to the City Police Station.
The accused’s record of interview with police
37.At 2.10am on 23 May 2021, Senior Constable Robens arrived at the City Police Station to interview the accused. When he saw the accused, he noticed her face was swollen and he was concerned about her health. The accused complained of pain, but initially refused Senior Constable Robens’ offers to obtain medical attention for her.
38.Senior Constable Robens gave evidence that, prior to the commencement of the recorded interview, the accused was “very enthusiastic about trying to explain to us and put her version down”. The accused told Senior Constable Robens that “she didn’t have the car, that her friend had the car.” She told police that the friend’s name was Amanda Brown.
39.A statement from Ms Brown was admitted in evidence. In that statement, Ms Brown said that she was asleep at her cousin’s house with her cousins and family on the evening of 22 May 2021. Ms Brown said that she had had a fight over the phone with the accused the previous Tuesday or Wednesday and that she had not made up with the accused since that fight. That statement was not challenged by the accused, who now acknowledges through Mr Chen that she lied when she told police that Amanda Brown was the driver.
40.Shortly before 3am, Senior Constable Robens commenced an interview with the accused. He began by providing the accused with a section 60 notice under the Road Transport (General) Act 1999 to disclose the identity of the driver of a motor vehicle. In response to this notice, the accused responded “I wasn’t the driver. I don’t know what to say. I wasn’t driving.” The accused acknowledged that the car belonged to her mother, and that her identity documents and other “stuff” were in the vehicle.
41.When asked again who was driving the car, the accused responded “I don’t know, I just can’t do it. I can’t tell on someone. I just can’t.”
42.The accused was then given a caution. The interview was temporarily suspended for the accused to speak to a lawyer. After the lawyer did not answer, the interview was then again suspended to enable the accused to call her partner, Shane Condon-Reid. Senior Constable Robens recorded in the interview that when the accused spoke to Mr Condon-Reid, she “started immediately trying to straighten up whatever the story [was]”. Senior Constable Robens was not asked exactly what the accused said to Mr Condon-Reid at this time.
43.The interview was then suspended again whilst the accused briefly spoke to a lawyer. When the interview resumed, the accused told police that her phone was recently taken during “an incident the other night – with some pretty crazy people”. She complained of anxiety and pressure on her chest. Finally, the accused asked the officers to check their “bodycam” or “the footage” because they could "get the driver on that", but said that she did not want to see the footage herself.
44.The interview concluded at 3.44am. Senior Constable Robens called for ACT Ambulance Services to attend. Whilst waiting for the ambulance officers to attend, the accused began to explain to the officers that her face was swollen and she had chest pain because she had been abducted by methylamphetamine cooks from the Southern Greater Sydney area in the previous week. She said that her injuries were caused by being hit with a magnet in a sock, and by being tasered. She refused to state on the record any of the names of the people involved.
ACT Ambulance Services Record
45.A Patient Care Record from ACT Ambulance Services dated 23 May 2021 was admitted in evidence. That Record stated that ACT Ambulance examined the accused in the City Watch House. The Record further stated that the lead up events to the arrest were detailed by the Australian Federal Police and that the “patient did not dispute these” to the Ambulance Services. Curiously, in view of the accused’s previous denial to police of being in the car at all, the Record also indicates that the accused “states she was wearing seatbelt”. This statement that is alleged to have been made by the accused was not further elaborated in the Record. The author of the Record was not called to give evidence.
46.The Record stated that there was “no obvious new injury”. It also stated that the accused complained of pain to the right side of her face/ear from allegedly being hit with a magnet 2 – 3 days ago. The Record further stated that the accused complained of “sharp/heavy chest discomfort” and “abdominal pain from being tasered by people known to her several days ago.” In respect of these complaints, the Record stated “Overall difficult to ascertain what is new or old injury, real or claimed.” The Record noted that the accused indicated that she would like to go to hospital, but that the accused then agreed that she was happy to see her general practitioner to have an X-Ray ordered.
Subsequent police investigations
Interviews with other drivers
47.Police interviewed each of the drivers who had pulled over after their near-misses with the Mazda 3 on Drakeford Drive. One driver was able to provide in-car footage of his vision of the Mazda 3, as it travelled directly toward him, at speed, on the wrong side of Drakeford Drive. That footage was admitted into evidence and I have carefully viewed it. It is not possible to see the driver, or whether there is any passenger in the front passenger seat of the Mazda 3. All of the other drivers interviewed, save one, were similarly unable to see the driver or whether there was any passenger in the front seat.
48.The one exception was Ms Hyde, who initially told police in an email sent on 25 May 2021 that she “thought [she] saw a man driving the car.” However, in that email, she continued “but I wasn’t sure. It was very difficult to see and they were driving so fast and erratically it was hard to get a good look.”
49.In her evidence before this Court, Ms Hyde clarified that she could not see “any details about the driver”. She said that she thought it was a “bias” that she said “he” when she was speaking to the police. Although she accepted that her memory was better when she sent the email, she maintained that she could not see the driver because “it was just so dark and so fast.” She also could not tell whether there were any passengers in the car.
Ownership of the car and the accused’s licence
50.Police investigations found that the Mazda 3 was owned by the accused’s mother. It is an agreed fact in these proceedings that the car was purchased by the accused’s mother to be given to the accused. The accused was found to be disqualified from driving in New South Wales at the time.
DNA and fingerprint testing
51.Subsequent DNA testing found the accused’s DNA on the steering wheel, gearshift and handbrake of the Mazda. The accused’s fingerprint was found in the Mazda’s rear view mirror. The accused’s DNA and that of an unknown contributor(s) was found in the pink fluffy slippers found in the front driver’s seat footwell and in the second pair of pink fluffy slippers found in the footwell of the back passenger seat of the car.
Attempt to subpoena Shane Condon-Reid
52.In cross-examination, Senior Constable Robens agreed that Mr Condon-Reid told him that he was with the accused on the night of the alleged offences in a phone call.
53.Senior Constable Robens said he had made a number of attempts to contact Mr Condon-Reid during the course of the investigation, but had only spoke to Mr Condon-Reid via phone as Mr Condon-Reid would not speak to him in person. Mr Condon-Reid refused to provide a statement to police, but said that he would provide a statement to the defendant’s legal representative.
54.Senior Constable Robens explained that he had been asked to serve a subpoena on Mr Condon-Reid but that he had been unable to serve that subpoena. In cross-examination, he admitted that the first time that he was asked to serve the subpoena was the week before the trial commenced. He said that the police subpoena team would have a record of any previous attempts to serve Mr Condon-Reid, but that he did not have that record.
Directions
55.I have taken into account the following directions in reaching my verdicts.
56.The parties agree with the form and content of each of the directions, other than the Mahmood direction, which is opposed by the prosecution.
Onus and Standard of Proof
57.The burden of proof of the guilt of the accused is placed squarely on the prosecution. That burden never shifts to the accused. The accused is presumed to be innocent unless and until the prosecution persuades me that the accused is guilty beyond reasonable doubt.
58.It follows that if I am left unable to decide whether the prosecution has proved its case beyond reasonable doubt, even though I might suspect the accused committed the offence, the accused is entitled to the benefit of that doubt and I must find her not guilty.
Fact Finding
59.The facts that I find must be based on the evidence; that is, the evidence given by the witnesses and that are contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process.
Inferences
60.I may draw reasonable inferences from the facts that I find are established. I must examine any possible inference to ensure that it is a justifiable inference and I must not draw an inference from the direct evidence unless it is a rational inference in the circumstances.
Circumstantial evidence
61.The prosecution case that the accused was the driver of the Mazda 3 is entirely circumstantial. There is no direct evidence that the accused was the driver, nor has the accused admitted that she was the driver of the Mazda 3.
62.However, it is not necessary for proof beyond reasonable doubt for the prosecution to produce either an eyewitness, an admission of guilt or other direct evidence. Instead, the prosecution asks me to draw the inference that the accused was the driver from all of the circumstances which have been proved.
63.In the present case, the prosecution will have failed to prove its case beyond reasonable doubt unless the conclusion that the accused is the driver is the only rational inference that can be drawn from the whole of the circumstances actually established to my satisfaction by evidence I accept. To put it another way, I cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other conclusion is reasonably compatible with the circumstances.
64.In a circumstantial case, all of the circumstances established by the evidence must be considered and weighed together, not individually or in a piecemeal fashion. The probative force of a body of evidence may be cumulative.
65.For practical purposes, sometimes a circumstantial case is described as a "link in the chain" case, on the one hand, or as a "strand in the cable" case on the other. Where the case falls into the former category, it may be necessary for the prosecutor to prove some of the circumstances relied upon beyond reasonable doubt, because they are indispensable intermediate facts. In the latter category, it is only the elements of the offence itself which need to be proved beyond reasonable doubt. It is not necessary for the various factual "strands" to be proved to that high standard. This is because of what I have referred to as the cumulative effect of a body of evidence. While each individual strand may be of insufficient strength to support the weight of the prosecution case, when bound together the whole may be of greater probative force than the sum of its parts. Both parties agree that the present case is a “strands in the cable” case.
66.That the case relies upon indirect, circumstantial evidence does not mean that it is weaker than a case that relies upon direct evidence or eyewitness accounts. In either case, of course, the question remains the same, has the prosecution proved its case beyond reasonable doubt? In the present case, I must be satisfied that the inference that the accused was the driver has been proved beyond reasonable doubt. If I am not satisfied of this inference beyond reasonable doubt, I must acquit.
The accused did not give evidence
67.The accused has not given any evidence in response to the prosecution case. However, as outlined above, the prosecution bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged. There is no obligation on an accused person to give or call evidence in a criminal trial. The accused is presumed to be innocent until I am satisfied beyond reasonable doubt by the evidence led by the prosecution that she is guilty of the offences charged.
68.It follows that the accused is entitled to say nothing and make the prosecution prove her guilt to the high standard required. I cannot use the accused’s decision not to give evidence in any way at all during the course of my deliberations, nor can I use it as strengthening the prosecution case or in assisting the prosecution to prove its case beyond reasonable doubt. I must not speculate about what might have been said in evidence if the accused had given evidence.
Account given by accused (Liberato direction)
69.Although the accused did not give evidence, she relies on her statement to police in her record of interview that she was not the driver of the Mazda 3. As I have just stated, the accused must be found not guilty if her guilt has not been proved beyond reasonable doubt and she is entitled to the benefit of any reasonable doubt that I may have at the end of my deliberations.
70.Three things follow from this:
First, if I believe that the account relied on by the accused in her interview with the police is true, I must acquit.
Second, if I find difficulty in accepting the account relied on by the accused in her interview with the police, but think it might be true, then I must acquit.
Third, if I do not believe the account relied on by the accused in her interview with the police, then I must put it to one side. Nevertheless, the question will remain: has the prosecution, upon the basis of evidence that I did accept, proved the accused’s guilt beyond reasonable doubt?
Reliance on lies as consciousness of guilt
71.There are four lies relied upon by the prosecution, which are set out at paragraph [86] (vii) below. The prosecution seeks to rely on each of the lies as evidence demonstrating a consciousness of guilt on the part of the accused: Edwards v The Queen [1993] HCA 63; 178 CLR 193; Sidaras v The Queen (No 2) [2020] ACTCA 39 at [54].
72.Before I may use any of these lies as consciousness of guilt, the following conditions must be satisfied:
(i)The accused must be shown to have made the statement;
(ii)The statement must be shown to be a lie by admission or by other evidence (whether direct or circumstantial);
(iii)The lie must be deliberate;
(iv)The lie must relate to an issue that is relevant to the offence the prosecution alleges that the accused committed. It must relate to some material circumstance or event connected with that alleged offence;
(v)I must find that the reason the accused told this lie is because she feared that telling the truth might reveal her guilt in respect of the charges she now faces. In other words, she feared that telling the truth would implicate her in the commission of one of more offences for which she is now on trial.
73.I must remember, however, that people do not always act rationally, and that conduct of this sort, that is, telling a lie, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal their guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence.
74.If I think that the lie may have been told for some reason other than to avoid being implicated in the commission of the offence for which the accused is now on trial, then it cannot be used as evidence of the accused’s guilt. If that is the case, I may use the evidence that the accused has lied when considering the accused’s credibility in her record of interview, but I must otherwise put the lie to one side and focus my deliberations upon the other evidence in the case.
Reliance on flight as consciousness of guilt
75.The prosecution also relies on the accused’s flight from the scene of the collision as consciousness of guilt. The same principles that apply to the prosecution’s use of lies as consciousness of guilt also apply to evidence of flight.
Witness not called by prosecution (Mahmood direction)
76.The accused submits that the prosecution has failed to exclude the possibility that the accused’s then partner, Mr Condon-Reid, was the driver of the Mazda 3. Mr Condon-Reid was not called by the prosecution to give evidence.
77.As outlined above, when police telephoned Mr Condon-Reid, Mr Condon-Reid said that he was “with” the accused on the night of the collision. Mr Condon-Reid refused to provide a statement, telling police at one stage that he would only give a statement to the defence. On 21 October 2022, the prosecution issued a Summons for Mr Condon-Reid to appear in court and to give evidence in these proceedings. However, police were unable to locate Mr Condon-Reid to enable him to be served. Senior Constable Robens gave evidence that he was only asked to serve the Summons the week before the trial. There was no evidence of any attempt to effect service prior to this time.
78.The accused submitted that I should give myself a “Mahmood direction” (Mahmood v Western Australia [2008] HCA 1; 232 CLR 397) because, other than the evidence of Senior Constable Robens that he unsuccessfully attempted service during the week prior to this trial, there was no evidence that police had made any attempts to serve Mr Condon-Reid. The prosecution submitted that it would be unfair for me to give myself a Mahmood direction, as there was evidence that the prosecution had recognised that Mr Condon-Reid was a relevant witness, and because “all steps” had been made to effect service.
79.Mr Condon-Reid was clearly a relevant witness. His conversation with police that he was “with” the accused on the night of the collision, whilst not amounting to an admission that he was the driver of the Mazda 3, nonetheless indicated that he could give an account relevant to the facts in issue.
80.I accept the accused’s submission that police should have done more to secure Mr Condon-Reid’s attendance. I note that Senior Constable Robens suggested that it was the role of officers in the “Service and Processing area” to try to effect service first. However, the prosecution did not adduce any evidence to demonstrate that Service and Processing had attempted to effect service. The only evidence of any attempt to effect service was that of Senior Constable Robens, a week before the trial was due to commence.
81.Accordingly, I direct myself as follows.
82.I can take the fact that there was no evidence from Mr Condon-Reid into account when I decide whether the prosecution has proved the guilt of the accused. This would not involve speculating about what Mr Condon-Reid would have said if he had been called. But in a criminal trial, where the prosecution must prove that the accused is guilty beyond reasonable doubt, the finder of fact is entitled to take into account that there was no evidence from a particular person in deciding whether or not there is a reasonable doubt about the accused’s guilt.
The Elements
83.The elements of Counts 1 and 2 are:
(i)The accused drove a motor vehicle;
(ii)The accused intended to drive a motor vehicle;
(iii)The driving of the motor vehicle was furious, reckless, or at a speed or in a way that was dangerous to the public; and
(iv)The driving occurred on a road or road related area.
84.The particulars of aggravation for each of counts 1 and 2 are:
(i)At the time of driving dangerously, the accused failed to stop when directed by a police officer; and/ or
(ii)At the time of driving dangerously, the accused drove at a speed that exceeded the speed limit by more than 30%; and/ or
(iii)At the time of driving dangerously, the accused drove in a way that put at risk the safety of a vulnerable road user.
85.The elements of count 3 are:
(i)The accused drove a motor vehicle;
(ii)The accused intended to drive a motor vehicle;
(iii)The driving was near or at a police officer;
(iv)The accused knew, or was reckless about whether, the police officer was a police officer;
(v)The police officer was exercising a function given to the officer as a police officer (strict liability attaches to this physical element of circumstance: s 29A(2)); and
(vi)The accused intended to risk, or was reckless about risking, the police officer’s safety by that conduct.
The Parties’ Submissions
The prosecution’s submissions
86.The prosecution relied on the following circumstantial evidence to demonstrate that the accused was the driver of the Mazda 3 at the relevant time:
(i)The accused’s connection to the Mazda 3, including that the car had been purchased for the accused to drive by her mother; DNA and fingerprint evidence which linked the accused to the inside of the car; the lack of any damage suggesting that the car had been stolen and the many documents found in the car belonging to the accused, including her NSW identity card.
(ii)The location where the Mazda 3 first encountered police, which was near where police believed the accused lived with her partner, Shane Condon-Reid, in Monash.
(iii)The location of the collision site, which was near an embankment leading to Isabella Pond, and the proximity of that site to the apartment in William Hudson Crescent where the accused sought assistance approximately an hour after the collision.
(iv)The fact that police did not locate anyone other than the accused in the vicinity of the collision, even though police canvassed the area for some time.
(v)The accused’s appearance at William Hudson Crescent, in particular, that she was wearing pyjama-style clothing, with no shoes and was dripping wet (consistent with her having swum through the pond immediately after the collision).
(vi)The presence of pink fluffy slippers in the driver’s footwell of the Mazda 3 and the presence of a purse containing the accused’s identification information on the front passenger seat, which were found by police immediately after the collision.
(vii)Lies as consciousness of guilt. In particular the prosecution relies upon the accused’s statement to police that Amanda Brown was driving the Mazda 3 at the relevant time; the accused’s explanation to Ms Saqa that she had got wet from the sprinklers in the flower beds at William Hudson Crescent; the accused’s statement to Ms Saqa that she (the accused) came to be at the apartment at William Hudson Crescent as a result of being assaulted by her partner, a man in his thirties called “Shane”, who lived in the same apartment complex; and that the accused’s statement that she had her phone “and stuff” taken during an incident “the other night”. The prosecution contends that each of these statements were deliberate lies which were told because the accused feared that telling the truth would implicate her in the charged offences; and
(viii)The accused’s flight from the scene of the collision, which the prosecution also relies upon as consciousness of guilt.
87.The prosecutor submitted that Ms Hyde’s statement to police that the person who was driving the car was a man would not cause me to have a reasonable doubt. The prosecutor pointed to Ms Hyde’s evidence in chief examination that she “didn’t really see [the driver]”, and that she thought that it was “just a terrible bias that [she] said ‘he’ when she was talking to police”.
The accused’s submissions
88.In his written and oral submissions, Mr Chen reiterated the accused’s concession that the prosecution had established beyond reasonable doubt that the accused was in the Mazda 3 at the time of the alleged dangerous driving. He submitted that the onus was on the prosecution to prove, beyond reasonable doubt, that the accused was the driver, rather than a passenger of the Mazda 3.
89.Mr Chen submitted that each of the circumstances relied on by the prosecution were equally consistent with a hypothesis that the accused was a passenger, rather than the driver of the vehicle. In particular, Mr Chen submitted:
(i)The DNA and fingerprint evidence was equivocal, in view of the accused’s formal admission that the Mazda 3 was in effect her car.
(ii)The fact that the police had not found any other person in their canvass of the area was not significant, noting that police had not found the accused in their search.
(iii)The location of the pink slippers did not give rise even to a suspicion of guilt: as the slippers were “wedged” under the pedals, it was unlikely that they had been worn by the driver, rather it was more likely that they served some kind of “functional purpose”, such as to ensure that the pedals were not depressed too quickly. Alternatively, as the car was a messy car, the slippers may have been lodged “deeper and deeper into the footwell over time” and were not used by the driver during the driving in question.
(iv)The fact that the accused was found barefoot does not support the prosecution case, because the accused may have entered the car as a passenger barefoot, or she may have jettisoned her shoes in Isabella Pond. In this respect, Mr Chen noted that the police had not undertaken any search of Isabella Pond or its surrounds for shoes. Mr Chen also submitted that it was a “gendered assumption” that a man would not wear pink fluffy slippers, and that the actual driver of the car may have either put the slippers on because they were the nearest footwear, or because “he appreciated how comfortable or warm they might be”.
(v)The accused’s lies were not evidence of consciousness of guilt: the purpose of the accused’s lies to Ms Saqa was to secure warm shelter, and the purpose of the accused’s lie to police that Amanda Brown was driving was to protect the real driver, for reasons either of love or fear. Finally, Mr Chen submitted that there was no evidence that the accused’s statement that her phone had been stolen was a lie. As there was no evidence that police performed any investigation of the phone that was found in the car, it had not been proved that that phone did in fact belong to the accused. Mr Chen also submitted that the accused’s flight from the scene of the collision was also equivocal: “if [the accused] did not want to be a part of the police investigation, she would of course, run away, or in this case perhaps swim away.”
90.Mr Chen emphasised that the accused bore no onus of proof, but contended that there was, nonetheless, positive evidence that the accused was a passenger rather than a driver of the car.
91.First, Mr Chen submitted that there was evidence that the front passenger airbag of a Mazda 3 had been deployed, but there was no evidence from the prosecution that a front passenger airbag would be deployed if there was no passenger in the front seat.
92.Second, Mr Chen relied on the accused’s record of interview with police. He pointed out that, in that interview, the accused pleaded with police on three occasions to check their footage, and that she told police that they would “get the driver on that.”
93.Third, Mr Chen referred to Ms Hyde’s email to police in which she said that she “thought it was a man driving.” Whilst Mr Chen acknowledged Ms Hyde’s evidence that she thought that her previous identification of the driver as male was simply based on a biased assumption about the manner in which the Mazda was being driven, Mr Chen also noted that Ms Hyde accepted that her memory was better at the time that she wrote the email to police.
94.Finally, Mr Chen pointed to various investigations that should have been performed by police. These included the previously mentioned failures to serve Mr Condon-Reid and to examine Isabella Pond, as well as a failure to examine the accused’s chest to see whether any seatbelt injury was consistent with her being the driver or a passenger (noting that any injury would be from the right shoulder to the left waist if the accused was the driver, or the left shoulder to the right waist if the accused was the accused was a passenger), or to find and locate any footage other than the in-car footage to which I have already referred.
Analysis
Uncontested matters
95.As outlined above, the accused accepts that the prosecution has demonstrated each element of each count, other than that she was the driver of the Mazda 3.
96.I am satisfied beyond reasonable doubt that each of those elements are established.
97.On the basis of the uncontested evidence of Senior Constable Robens, I find that the driver of the Mazda 3 was aware of, and ignored a police signal to pull over, that the Mazda 3 was driven at a speed that approached 180km/hr in an 80km/hr zone and that the Mazda 3 was driven at night and at speed through a roundabout and red traffic lights without slowing down. Accordingly, I am satisfied beyond reasonable doubt that the Mazda 3 was driven intentionally and at a speed and in a way that is dangerous within the meaning of ss. 7 and 7A of the RT (SM) Act as alleged in count 1.
98.On the basis of the evidence of Acting Patrol Sergeant Fergusson and the civilian witnesses, I am satisfied that the Mazda 3 was driven well in excess of the speed limit, without lights, and counter to the flow of traffic on a major road. Accordingly, I am satisfied that the Mazda 3 was driven intentionally and in a dangerous manner within ss. 7 and 7A of the RT (SM) Act as alleged in count 2.
99.I am also satisfied that each of the roads travelled on by the Mazda 3 during the periods alleged in count 1 and count 2 were roads within the meaning of the Dictionary to the RT (General) Act.
On the basis of the uncontested evidence of Acting Patrol Sergeant Fergusson, I am satisfied beyond reasonable doubt that the Mazda 3 was driven at Acting Patrol Sergeant Fergusson within the meaning of s. 29A of the Crimes Act. At this time, Acting Patrol Sergeant Fergusson had positioned his car to block the junction. In doing so, he was exercising a function given to him as a police officer. As the officer was driving a marked police vehicle displaying its full emergency lights, I am satisfied beyond reasonable doubt that the driver of the Mazda 3 knew that Acting Patrol Sergeant Fergusson was a police officer, and that the driver of the Mazda 3 intended to risk, or was reckless about risking, the police officer’s safety by driving directly at the officer.
I am also satisfied beyond reasonable doubt that the accused was in the car at the time of the driving and the collision. The circumstances that lead me to draw this inference beyond reasonable doubt are as follows:
The Mazda 3 had been given to the accused by her mother. At the time of the collision, the vehicle had the accused’s identity and other personal documents in it.
There was no evidence that the Mazda 3 had been stolen. In particular, the external locks of the car had not been interfered with.
The collision occurred very close to the embankment of Isabella Pond. Less than an hour after the collision, the accused sought assistance from Ms Saqa and her mother, Ms Vaquewa, in an apartment block on the opposite side of Isabella Pond. At this time, the accused was soaking wet.
The accused lied, both to Ms Saqa and Ms Vaqewa and to police, about where she had been prior to her arrival at the apartment, why she was wet, and who had been driving her car.
The overwhelming inference to be drawn from the above facts is that the accused was in the Mazda 3 at the time of the collision (and hence, necessarily at the time of the driving), that she fled from the scene of the collision by jumping into the Isabella Pond and swimming to the other side, and that she lied to Ms Saqa, Ms Vaqewa and to police, at the very least, because she knew that she was in the Mazda 3 at the time that it was driven dangerously.
In these circumstances, the sole issue for me to determine is whether the prosecution has proved, beyond reasonable doubt, that the accused was the driver of the Mazda 3 at the relevant time.
Was the accused the driver of the Mazda 3?
Introduction
When she was interviewed by police, the accused did not tell police that there were two occupants of the Mazda 3, and that she was only the passenger. Rather, as outlined above, the accused told police that she was not in the car and that Amanda Brown was the driver. The accused now acknowledges that this was not true.
The accused did not give evidence. Through her legal representative, Mr Chen, it was suggested that the driver of the car may in fact have been her then partner, Mr Condon-Reid. Other than Ms Hyde’s initial email to police, in which she said that she thought that the driver may have been a male, there is no evidence that Mr Condon-Reid was driving the Mazda 3 at the relevant time.
Nonetheless, the onus remains on the prosecution to prove each element of the offences. In respect of each count, this requires the prosecution to prove, beyond reasonable doubt, that the accused was the driver, and not simply an occupant, of the Mazda 3.
There is no eyewitness evidence that sheds light as to whether there was a passenger in the Mazda 3 at the time of the driving. Accordingly, the case against the accused is necessarily circumstantial in nature.
I commence by reminding myself of the onus and standard of proof as set out above. In particular, I remind myself that the question is not one of making a “choice” between whether the accused was the driver or a passenger of the Mazda 3. Rather, the question is whether the prosecution has proved, beyond reasonable doubt, that the accused was the driver of the Mazda 3.
I also remind myself that the circumstantial evidence must be considered and weighed together, not individually or in a piecemeal fashion and that the probative force of a body of evidence may be cumulative.
Matters that do not have sufficient reliability or probative value to include within the circumstantial mix
Bearing firmly in mind that circumstantial evidence must be considered together, there are nonetheless some circumstances which I do not consider to have sufficient probative force to include within the circumstantial mix.
First, contrary to the prosecution’s submission, I do not regard it as significant that the police did not find any other person in their canvass of the area. There is no dispute that the accused was in the Mazda 3. Despite this, police did not locate the accused in their canvass of the area. She was only found as a result of a triple 0 call.
Second, I do not regard the presence of the accused’s DNA and fingerprints in the Mazda 3 to be of any probative value in identifying the driver of the Mazda 3. They simply reflect the agreed fact that the Mazda 3 was the accused’s car. These matters are equally consistent with the accused being a passenger in her own car. (I note that the prosecutor properly acknowledged that these matters were fairly neutral.)
Third, I do not regard the location of where the Mazda 3 was first seen in the Monash area to support the prosecution’s case that the accused was the driver of the car. As Mr Condon-Reid also lived in that area, the location where the pursuit began is equally consistent with him being the driver.
Fourth, I do not consider Ms Hyde’s initial statement to police that she thought that the driver of the Mazda 3 was a male to be of sufficient reliability to include in my consideration of the circumstantial case. I accept that Ms Hyde’s memory was better closer to the time than it is now. However, as Ms Hyde herself stated in evidence, she was confronted with a car travelling on the wrong side of the road, towards her, at speed, and at night. I accept her evidence that she could not see the driver. In forming the assessment that Ms Hyde’s initial statement to police was unreliable, I have also taken into account my own viewing of the in-car footage as well as the statements of the other drivers in the same vicinity who said that they could not see who was driving.
Finally, I also note that, in her statement that was admitted in evidence without objection, Ms Saqa also stated that she heard the officer who arrived third, and who “looked like a police motorcyclist” tell the accused that he had called “Shane”, and that Shane was “in bed and had no idea what was going on”. Similarly, Ms Vaqewa stated that she heard this officer tell the accused that he had “spoken with her boyfriend which he had woken up with the phone call.” I have not taken this evidence into account. It is third hand hearsay. Senior Constable Robens, who was the third officer to arrive and was riding a police motorcycle, did not give any evidence of having had any conversations with Mr Condon-Reid on the night of the collision. No submissions were made to me about this conversation by either party.
Police Failures
As outlined above, Mr Chen submitted that police had failed to perform a proper investigation by:
(i)Failing to take any footage of the Mazda 3 whilst it was driving;
(ii)Failing to investigate whether a passenger airbag of a Mazda 3 would deploy if there was no person in the passenger seat;
(iii)Failing to investigate whether the accused had a seatbelt injury, and, if so, the direction of that injury; and
(iv)Failing to take prompt steps to subpoena Mr Condon-Reid.
I do not accept that police failed to investigate whether the accused had a seatbelt injury. On request, they arranged for her to be seen by ambulance officers. The records of the ambulance officers record that there was “no obvious new injury” and that “overall [it was] difficult to ascertain what is new or old injury, real or claimed.”
I also do not accept that I should draw any inferences from police’s failures to make any inquiries as to whether the passenger airbag of a Mazda 3 would deploy in the event of an accident if no one was in the passenger seat. There is no evidence before me on this issue. I do not speculate about what the result of any inquiry would have been, had it been made.
As outlined above, I have given myself a Mahmood direction in respect of Mr Condon-Reid. I do not speculate about what he may have said if he had been called. I do take into account that there was no evidence from Mr Condon-Reid in determining whether the prosecution has proved its case beyond reasonable doubt.
No officer was asked any questions about why no footage was taken of the Mazda 3 when it was driving, either by way of in-car recordings or bodyworn cameras. It is regrettable that no such footage appears to have been taken. However, in view of the speed that the Mazda 3 was travelling, and the darkness, it may be unlikely that any such recording would have assisted in determining whether the prosecution had demonstrated the offences beyond reasonable doubt. Nonetheless, I take into account that I do not have any footage of the Mazda 3, other than that provided to police by one of the drivers on Drakeford Drive.
The accused’s record of interview
I have carefully considered the statements that the accused made to police in her record of interview, in particular, her denial that she was the driver of the Mazda 3, and her request to police that they examine their bodyworn video, and that such examination would tell them who the driver was.
My assessment of that interview cannot be conducted in isolation from the other evidence in the case. As outlined above, the accused made a number of statements to Ms Saqa and her mother Ms Vaqewa, and to investigating police, which she now acknowledges are lies.
I consider below whether these lies can be relied on as consciousness of guilt. Importantly however, as Mr Chen acknowledged, I may rely on those lies in assessing whether the accused’s answers in her record of interview should be accepted as true, or as possibly true.
The accused told many lies following the collision. She lied to both police officers and to civilians who were attempting to help her. She lied about important matters (alleging that she had been the victim of domestic violence), about where she had come from, and about matters that were demonstrable to be false (such as the fact that she had become wet from the sprinklers of the apartment block and that she had had a fight with her partner, a man called Shane who lived in another apartment within the block). She also lied about matters that potentially had serious consequences for other people (namely that Amanda Brown was the true driver of the Mazda 3). It is apparent that the accused was prepared to say anything to anyone that served her immediate interest at the time. In view of these lies, I do not consider the accused’s credibility to be such that I could give any weight to her assertion to police that she was not the driver of the Mazda 3.
I have carefully considered Mr Chen’s submissions relating to the accused’s pleas with police to check their footage, and that this would show them who the “true driver” was. In this respect, in addition to the issues of credibility referred to above, I note that the accused told police that she was not in the Mazda 3 at all, and that the car was in fact being driven at the time by Amanda Brown. Senior Constable Robens gave evidence that the accused did not make this statement reluctantly, but was “enthusiastic” in her attempt to give this explanation.
In other words, at the same time that the accused told police that any footage would show them who the true driver was, the accused falsely told police that she was not in the car, and that the true driver was another, single female. In these circumstances, I do not consider that the accused’s pleas to police to check the footage provides any support for an inference that the accused was a passenger and not the driver of the car.
Having so concluded, I put the accused’s statement to police in her record of interview that she was not the driver of the Mazda 3 to one side. It remains necessary to consider the prosecution case, and whether the prosecution has proved beyond reasonable doubt that the accused was the driver.
Consciousness of guilt
As outlined above, the prosecution relies on four lies as consciousness of guilt. These are:
(i)The accused’s statement to police that Amanda Brown was driving the Mazda 3 at the relevant time;
(ii)The accused’s statement to Ms Saqa that she had got wet from the sprinklers in the flower bed at the apartment in William Hudson Crescent;
(iii)The accused’s statement to Ms Saqa that she had been assaulted by her partner, a man in his thirties named Shane, who lived in the same apartment complex; and
(iv)The accused’s statement to police that she had her phone “and stuff” taken during an incident “the other night”.
The prosecution also relies on flight as consciousness of guilt.
I am not satisfied that the prosecution has demonstrated that statement (iv) was untrue. As Mr Chen submitted, there is no evidence that the police conducted any investigation of the phone that was found in the Mazda 3. In the absence of such investigation, it has not been independently demonstrated that the phone found in the car was in fact the accused’s phone.
The accused accepts that statements (i) – (iii) were deliberate lies. I am satisfied that each of these lies are relevant to the alleged offences. The lie in statement (i) relates to the driver of the Mazda 3 at the relevant time. The lies in statements (ii) and (iii) relate to where the accused was at the time of the alleged offences.
As I have directed myself, a person may tell a lie for reasons other than trying to conceal their guilt. I accept that this is possibly the case in respect of the lies contained in statements (ii) and (iii). Those lies are possibly consistent with the accused wanting to conceal the fact that she was a passenger in a car (belonging to her) that had been driven extremely dangerously. The accused’s flight from the scene of the collision is also equally consistent with this explanation. For this reason, I do not include them in the circumstantial mix.
However, I consider the accused’s lie to police concerning Amanda Brown to be in a different category. As outlined above, Senior Constable Robens gave evidence that the accused identified Amanda Brown as the sole driver of the vehicle without any reluctance. It is one thing for the accused to lie about her whereabouts at the time of the driving; it is quite another to positively identify a false person as the driver.
Further, as outlined above, it is also significant that the false person that the accused chose to nominate was a female. The accused repeatedly asked police to examine their footage to identify the true driver. It is unlikely that, if the true driver was the accused’s then partner, Mr Condon-Reid (as is now hypothesised on her behalf), the accused would have nominated a false driver who was a female. Rather, the fact that the accused nominated a false female driver is consistent with her recognition that if there was any footage of the driver, it would show a lone female as the driver, and not a male driver with a female passenger.
Accordingly, I am satisfied that the accused falsely told police that Amanda Brown was the driver because she feared that telling the truth would have implicated her in the offences for which she is now charged.
The pink fluffy slippers
A significant piece of circumstantial evidence is the location of the pink fluffy slippers in the driver’s footwell of the Mazda 3.
I accept Constable Bretten’s evidence that immediately after the collision, the slippers were in a position that would have interfered with the driving of the Mazda 3. I do not accept that the slippers were in that position whilst the car was being driven. The speeds at which the Mazda 3 travelled and the manner in which it was driven are not consistent with there being any restriction of the accelerator or the brake. Accordingly, I am satisfied that the slippers were taken off by the driver of the Mazda 3 prior to their flight from the vehicle, no doubt to ensure a quicker escape from apprehension.
Although the slippers contained a mix of the accused’s DNA and the DNA of another unknown contributor, I do not consider that it is reasonably possible that the accused’s partner took her slippers to drive the car.
I also consider it to be highly probative that the accused was wearing pyjama like-clothing without shoes when she arrived at the apartment having emerged from the water on the other side of Isabella Pond.
Conclusion
The circumstantial evidence in this case, considered as a whole, is compelling. Taking into account all of the evidence, and, in particular, the position of the pink fluffy slippers in the driver’s footwell of the Mazda 3; the subsequent appearance of the accused wearing pyjama like clothing with no shoes when she arrived at the apartment in William Hudson Crescent, having swum across Isabella Pond; and the accused’s lie to police that Ms Brown was the driver of the car, which, I am satisfied demonstrates consciousness of guilt, I am satisfied that the only rational inference is that the accused was the driver of the Mazda 3. Accordingly, I am satisfied beyond reasonable doubt that the prosecution has proved each of the counts on the indictment.
Verdicts
The verdicts are as follows:
Count 1: Aggravated dangerous driving – I find the accused guilty.
Count 2: Aggravated dangerous driving – I find the accused guilty.
Count 3: Drive motor vehicle at police – I find the accused guilty.
Related charge
A further offence of Drive whilst Disqualified contrary to s. 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 was also before me as a related offence. Section 68D of the Supreme Court Act 1933 provides that a court must deal with any related offence with which the accused person has been charged “if the court considers that it is in the interests of justice.” It was accepted by both parties that it was in the interests of justice for me to deal with this charge. It follows from my findings above that I also find the accused guilty of this offence.
| I certify that the preceding [142] numbered paragraphs are a true copy of the Judgment of her Honour Justice Baker Associate: A Gallagher Date: 5 December 2022 |
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