Director of Public Prosecutions v Farquharson (No.2) (Ruling No. 4)
[2010] VSC 210
•21 May 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1524 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT DONALD WILLIAM FARQUHARSON |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF JUDGMENT: | 21 May 2010 | |
CASE MAY BE CITED AS: | DPP v Farquharson (No.2) (Ruling No. 4) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 210 | |
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CRIMINAL LAW – Re-trial – Accused charged with three counts of murder - Further submissions on matters dealt with by Court of Appeal – New evidence - Opinion Evidence – Specialised knowledge – Experiments – Degree of similarity with circumstances at the time – Matters of weight – Potential for jury to be misled - Limiting the use of evidence – Evidence Act (2008) ss. 53, 76, 79, 135, 136 & 137.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Tinney SC Ms A Forrester | Office of Public Prosecutions |
| For the Accused | Mr P Morrissey SC Mr C Mylonas | Victoria Legal Aid |
HIS HONOUR:
Robert Farquharson is charged with three counts of murder. As is well known, the prosecution case against him is that on 4 September 2005 he deliberately drove his vehicle into a dam whilst travelling west on the Princes Highway near Winchelsea. Having done that, the prosecution case is that he escaped from the vehicle whilst it remained underwater and left his three young children to drown. These actions on his part, rather than an accident, are alleged to have been deliberate. It is important to note at the outset that as to the manner in which the vehicle left the Princes Highway before entering the dam, which is the part of the evidence concerned in this ruling, there is no direct evidence of any kind. No witness saw the vehicle diverge to the right – no-one was present and watching. It was a country highway at around 7:00 pm or later on a Sunday in September 2005. Further, no account is given by the accused. His explanation is that he became unconscious as a result of extreme coughing and having “blacked out” at some stage he said he regained consciousness once the vehicle was in the water.
At his first trial in October 2007 the accused was found guilty by a jury of the three counts of murder and sentenced to life imprisonment by the trial judge. On 17 December 2009 the Court of Appeal[1] ordered that the convictions be set aside and a new trial held. This is that new trial.
[1]Warren CJ, Nettle and Redlich JJA.
Part of the evidence to be led in the prosecution case in this trial, as it was in the previous trial, is the evidence of Acting Sergeant Glen Urquhart from the Major Collision Investigation Unit in Brunswick. The evidence to be given by Mr Urquhart is in part evidence of his opinion based on his specialised knowledge and in part evidence of his observations. It is led to establish that the vehicle driven by the accused must have been deliberately steered off the road to the right into the dam because the environment, including the vehicle itself, would not have been the cause of what occurred and examination of the scene likewise points to the contrary. Urquhart’s evidence suggests there was no indication of loss of control or emergency braking. He also suggests that what he describes as a “sharp” departure to the right from the road occurred from input at the steering wheel. Importantly, Urquhart says that between the Princes Highway and entering the dam, there were three “steering inputs” in the accused’s vehicle based on Urquhart’s observations at the scene. The admissibility of some aspects of Urquhart’s evidence is once more in question it having been the subject of challenge in the first trial and likewise forming several grounds of appeal dealt with by the Court of Appeal.
Mr Urquhart attended the scene of the incident the day after its occurrence and made observations of the path of the vehicle and considered photographs taken of the scene. He relied upon his observations to provide his expert opinion, and in doing so, Mr Urquhart carried out two tests or experiments. First, a series of video taped “drive throughs” using a similar model vehicle was done. Second, a computer program called “PC Crash” was used to create a simulation of what occurred.
Each aspect of Mr Urquhart’s evidence given in the first trial is sought to be led in this re-trial. Furthermore, Mr Urquhart has now given a fresh statement signed 16 April 2010.
Drive throughs
On 22 September 2005, Mr Urquhart drove a test car apparently the same model as Mr Farquharson’s, at three different speeds (64, 82 and 101 kilometres per hour) along the relevant stretch of the Princes Highway, in a westerly direction towards Winchelsea. At a point along the highway, as the vehicle he was driving passed over the railway overpass approaching the dam situated on the right hand side of the highway, Mr Urquhart took his hands off the steering wheel, the aim being to track the path of the uncontrolled vehicle in a reconstruction of what occurred on 4 The “drive throughs” are said to have demonstrated that at the lower speed of 64km per hour, the vehicle actually veered to the left whereas in fact, Mr Farquharson’s vehicle turned to the right. The drive through evidence suggests that at 82km per hour and 101km per hour the vehicle held its line on the road. Thus it is concluded by Mr Urquhart that to diverge off to the right, a steering input to the right from the driver was required.
September 2005. These tests are the “drive throughs”.
“PC Crash”
PC Crash is a software package enabling the user to recreate a vehicular accident as an animated simulation. Prior to the first trial, Mr Urquhart created simulations at three different speeds. At each different speed, the simulation was performed with two variations: the first attempting to replicate the path of Mr Farquharson’s vehicle as estimated by Mr Urquhart and the second involving a constant steering input. From this it was calculated that the vehicle required three steering inputs for it to follow the path determined by Urquhart from the scene.
Challenges to Urquhart’s evidence
In considering these issues a material change since the first trial of the accused in 2007 and the judgment of the Court of Appeal in 2009 is the commencement of the Evidence Act 2008. In my opinion, subject to new factors which arise and the exercise of discretion or judgment under the Act, generally the opinions expressed by the Court of Appeal as to admissibility of evidence should be adhered to. However, in one instance as appears hereunder, to the extent that I will limit the use of one portion of Sergeant Urquhart’s evidence pursuant s 136 of the Evidence Act, I have reached a conclusion which on the face of it is different from that expressed by the Court of Appeal. The manner in which the matter was argued before their Honours and the manner in which it was argued before me were different and I do not feel constrained in applying s 136 of the Evidence Act to limit the use of one part of the evidence.
Further, where the Court of Appeal has made suggestions as to how particular aspects of the evidence should be dealt with during this re-trial, I propose to implement them subject to those suggestions being at odds with the law as it now is. I do not expect that situation will arise.
Challenges to Urquhart’s evidence in the current trial
In some respects the submissions made to me replicate argument put to the Court of Appeal, although there is now evidentiary material before me that was not before that Court. In summary the arguments before me were as follows:
(1)That the evidence that he has given concerning his opinion that there were three steering movements with a 220° initial turn causing a “sharp” turn to the right ought be excluded;
(2)That the animation based on computer modelling using the computer program “PC-Crash” should excluded;
(3)That the evidence of a re-enactment using a different vehicle given by Sergeant Urquhart should be excluded.
The first of these was abandoned by Mr Morrissey on the basis that the opinion of the witness about the three “steering inputs” does not depend on the manipulation of the computer program PC Crash. However, there remained an issue about the use of the word “sharp” though the prosecution appears to concede that such a term should not be used. The second and third matters remain in issue.
It is necessary to examine the issues which arose in the Court of Appeal and how they were dealt with before proceeding to deal with the issues as they are now raised on behalf of the accused.
Challenges in the Court of Appeal
The Court of Appeal noted that it was common ground between the parties that the prosecution was entitled to call Urquhart to give evidence as to the course of the vehicle.
The Court of Appeal dealt with three grounds which asserted that at the first trial of this matter, Sergeant Urquhart was permitted to give evidence which went beyond his area of expertise. It was then submitted that Urquhart’s opinion that (a) the vehicle was ‘under control’ prior to entering the dam and that (b) there had been three steering movements of the vehicle including one involving a turn of the steering wheel of 220 degrees, was inadmissible. Likewise it was argued that (c) a re-enactment of the behaviour of a vehicle said to be dissimilar was inadmissible. Those grounds all failed. The final ground was that (d) the learned trial judge had erred in admitting evidence of a computer simulation.
(a) ‘Under control’ evidence
In dealing with what might be described as the “under control” point, the key to the approach by the Court of Appeal is summarised in paragraph 116 of the judgment as follows:
“We accept that the use of the words ‘control’ carried with it a potential danger as it might be taken to imply conscious and voluntary steering. The expertise of the witness could not extend further than an opinion of the ‘steering inputs’ deduced from the evidence at the scene. The most likely inference to be drawn from the fact of ‘steering inputs’ was a matter for the jury”
The rest of that argument dealt with the use of the word “control” and the way in which that word had been used in Urquhart’s evidence.
The Court considered the evidence was admissible and the question of whether the vehicle was out of control was validly raised as a matter of evidence. What was to be avoided was any evidence from Urquhart of “purposeful” inputs from the driver. I expect that the view expressed by the Court will be adhered to in this trial and I do not understand that conclusion to be in issue. However the relevance of the topic now is this. Mr Morrissey, on behalf of the accused, has submitted that as a matter of terminology “steering inputs” should be preceded by a description of “change[s] of direction”. Mr Morrissey submitted that the proper way for the evidence to be given is for the relevant witnesses to say that from their observations they could see that the vehicle had changed direction at particular points and then to offer the opinion that the change of direction could only have been brought about by a “steering input”. I agree that there needs to be a logical process in that evidence and that it should follow that order so that the jury are clear on what is identified by witnesses as observed fact and what is identified by them as their opinion.
(b) Three steering inputs evidence
The Court of Appeal also dealt with the argument that there was insufficient evidentiary basis for Urquhart’s opinion that there had been three steering inputs after the point in time at which the accused claimed he had lost consciousness as a result of coughing fit. That ground failed.
(c) Driving re-enactments: ‘drive throughs’ evidence
The Court of Appeal considered the admissibility of the ‘drive throughs’ as it was submitted on behalf of the accused that the vehicle used in the testing was notably dissimilar to the vehicle driven by Mr Farquharson on 4 September 2005.
Those differences are said to have related to the wheel alignment of the accused’s vehicle which caused it to drift slightly to the right. Upon examination however, the evidence apparently demonstrated that the wheel alignment was within the manufacturer’s specifications. Mr Urquhart gave evidence at the first trial that the wheel alignment of the test vehicle had been checked[2], although it now turns out that is not so and it had not been. That was unknown to the Court of Appeal, who ruled that the contention that the dissimilarity of the vehicles was such to render the tests inadmissible was not made out.
[2]Transcript at 1846
In addition to the dissimilarity point, it was also submitted that the procedure was unscientific because (i) the camber or cross fall of the road had not been measured; and (ii) that television helicopter footage showed other ‘drive throughs’ (which I assume were not part of the evidence) which demonstrated that the vehicle veered towards the right of the road and towards the dam into which it eventually plunged.
Further, the Court concluded that Urquhart was entitled to give evidence based on the articulated assumption that the car was travelling in its correct lane. The Court was of the view that there was admissible evidence before the jury upon which the assumption could be made and referred to what the accused had said in the course of his interview as to his memory of what he was doing prior to losing consciousness. These matters still apply to the arguments before me.
With the evidence before them, the Court examined the issues and submissions and concluded that none of the criticisms of the evidence were made out.
(d) Computer simulation evidence
Finally, in relation to this witness, the Court examined the PC Crash animated computer simulation. The Court of Appeal identified the challenges made to the simulation being based, first on relevance, second that it was based on assumptions made by Urquhart which were not established by the evidence and finally that the simulation was more prejudicial than probative. None of those challenges succeeded. For the reasons that follow, I have concluded that I should not permit the PC Crash computer simulation to be shown to the jury. However, there is a further separate question as to the extent to which this program should be permitted to be referred to and relied on the evidence of Urquhart as supporting and further particularising his opinions on the various hypotheses as to place and manner in which the vehicle of the accused left the Princes Highway. I will return to that issue.
Basha Hearing – Urquhart Evidence
With the agreement of the prosecution, Mr Urquhart gave evidence before me on a Basha hearing. Urquhart was referred to his further statement in which he says that in preparation for this re-trial he has conducted a further examination of the material. This includes a further analysis using PC Crash and an examination of data provided by the defence witness at the first trial, Mr David Axup, relating to road surface cross falls and the issue concerning the drive through testing.
The result of the re-analysis based on the use of PC Crash is that Urquhart adheres to his original opinion that three steering inputs were required for the vehicle to follow the path he says it followed. He then deals with the cross fall data and concludes that such cross falls as are identified would not have caused the vehicle to change direction and veer off the road in the manner it is suggested it did on behalf of the accused. Finally, as to the vehicle he used for the three simulations, he said it is clear from the in-car footage that the vehicle was not pulling to one side or the other and there was no observable vibration in the steering of the vehicle.
He agreed that the program PC Crash is capable of including the effects of terrain in its modelling. He said it would be necessary to create a three dimensional surface over which the vehicle would travel, but it can be done. He has not undertaken that type of modelling with PC Crash since 2002. He accepted that if there were any shortcomings in the data used in PC Crash in 2005, they remain. No changes have been made.
Urquhart also agreed that it was open to his police colleague Courtis to measure the topography using a geodimeter on the night of the incident on 4 September 2005. He said that one of the reasons why he had not surveyed the scene since the last trial was that if he did, he would be faced with the criticism that he could not guarantee it was the same then as it was on the night that the incident occurred. Urquhart said PC Crash does assume that the surface is flat but assumes a friction value based on the information put into the program. He was then given a document being a product of the PC Crash program which showed the course of the vehicle and was asked to mark on the document where the first change of direction commenced.
Mr Urquhart recently created simulations where the divergence from the highway occurred earlier and the angle was smaller and he needed PC Crash to calculate the magnitude of the turn. Where the first turn commenced is a matter of some debate, both as to how far along the road the turn commenced and from which part of the west bound lane. This all proceeds on the basis that the right wheels of the vehicle crossed the right hand “crime scene” mark made by the police officer Exton on the night of the incident (‘the Exton marks’) which he contends they did. He agreed that the further down the road the right hand turn is made, the greater the prospect that there would be yaw or over steer marks[3]. He also said that his insistence that the vehicle passed over the right hand Exton marks is not based on a reverse projection from the tracks in the grass but rather relies on a mark in the “aggregate” (road shoulder) to conclude that the wheels passed over that mark.
[3]marks made when a vehicle is sufficiently out of control such that the rear wheel tracks do not follow the front wheel tracks
Urquhart was then questioned about input values for PC Crash and he said within the program, the vehicle was based on a Holden VN Commodore but the program itself seems to only provide for an Opel Omega as an option. That is, Mr Urquhart ‘constructed’ a Holden VN Commodore within a program based on an Opel Omega by using Holden data. One piece of data for the Holden Commodore was that the wheel base was 2.73 metres. Asked by me about the differences between a Commodore and an Omega, Mr Urquhart said the Omega is a European version of the Commodore but could not identify whether there were differences in the manufacture of the two vehicles and said he would “have to look that up”[4]. I have not since been informed that he has done that.
[4]Transcript at page 632.
It was then put to Mr Urquhart that Farquharson’s vehicle was 11 mm (about ½ inch) longer on one side than the other but Urquhart rejected that proposition.
In Mr Urquhart’s 2010 modelling, data was used which did not include any bias or right drifting tendencies. He agreed that the entire scenario assumed a flat surface. He made a number of other presumptions: that the first turn to the right commenced in the middle of the left hand lane; that the vehicle contacted the Exton mark. Mr Urquhart also assumed a constant coefficient of friction for the off-road terrain. The magnitude of the first turn to the right depends on where he hypothesises it occurred.
As to the vehicle used for the “drive throughs”, Urquhart agreed that he had previously said that the red Commodore test vehicle had had its front wheel alignment checked, and he now knows that is not so. He said that when he drove the vehicle at the scene it had been delivered there on the back of a truck. As to whether he has tested what occurs when there is a negative cross fall he could not say without looking at the videos.
Further Reports
Mr Andrew Enkelman, a consulting engineer, has prepared a report dealing with several topics at the instigation of counsel for the accused. They include:
· whether the vehicle used in the “drive through” testing was within manufacturer’s specifications;
· the expected comparative difference between the behaviour of the vehicle of the accused and a standard vehicle which had correct wheel alignment;
· how the “comparator” vehicle should have been used;
· factors which affect a vehicle pulling to one side or the other.
· Mr Enkelman did not give evidence, although such was offered by Mr Morrissey. The view I took was that the issues raised were matters for the jury to consider.
Submissions
Sergeant Urquhart’s conclusions are criticised generally on the basis that the information from which they were drawn includes assumptions which are false, incomplete or unreliable. The two major criticisms of the two categories of evidence are that in relation to the “drive through” experiment the vehicle used for the experiment was not within normal specifications notwithstanding the evidence of other prosecution witnesses and that, as to the use of the program PC Crash, the terrain over which the vehicle travelled was three dimensional, not flat.
It was also submitted that the evidence breaches the opinion rule by reference to s 76 and s 79 of the Evidence Act. Reliance is placed on the often cited passage from a judgment of Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
Specifically it was submitted on behalf of the accused that the three so-called “drive through” re-enactments using a different vehicle should be excluded. Although these matters were dealt with in the Court of Appeal as I have previously indicated, it is submitted that I am not necessarily bound by that judgment because there is a new “evidentiary matrix” within which to consider the tests, being the further expert reports of witnesses proposed to be called on behalf of the accused and also because the law of evidence is now relevantly different, particularly in relation to s 135 of the Evidence Act.
In essence, the objections to the evidence are based on the use of a different and dissimilar vehicle being used for the test, the use of a “controversial” area of the road and that the methodology of the experiment was flawed. It was effectively submitted that the jury will only be assisted if the evidence tends to indicate what the accused’s motor vehicle did, as opposed to what another dissimilar vehicle might do. However, I accept there are significant practical difficulties in performing an experiment using the vehicle driven by the accused.
Mr Morrissey submitted that the revelation that the wheel alignment of the test car had never been checked means that an inadequate test was conducted with an inadequate vehicle and that was more than the Court of Appeal knew. Mr Morrissey seems to suggest that means there may have been unknown alignment problems which did not give a true result when the experiment with the vehicle was done. Since that test was done, the vehicle has also apparently been submerged in another test. The alignment of the red test vehicle has now been the subject of further testing. The result of that test is that on 29 April 2010, the vehicle was found by qualified motor mechanic Stuart Patterson to be aligned both front and rear.
Mr Morrissey had also submitted that the three “drive throughs” should be excluded because his client’s vehicle is likely to have been a distinctive vehicle with a tendency to pull to the right. Whether that is so is, I am informed, very much in dispute. So far as alignment is concerned it was submitted that an important difference, among others, was that the vehicle of the accused was “not within GMH specification”. It was also put, as I followed the argument, that because the position of the accused on the road when the vehicle diverged to the right could not be known then the validity of this test was impugned. It is to be noted that on the night of the incident the accused did refer to a wheel bearing malfunctioning as being possible explanation for the incident. He was later asked by police about the condition of his vehicle and told them it was “pretty good” making no complaint of it having any tendency to pull to the right. Evidence is apparently to be led that a witness by the name of Jacobs tested the vehicle of the accused and told him that it needed a wheel alignment and in May 2005, that was done at a workshop in Geelong.
Mr Morrissey also suggested that I might have needed the issue factually resolved but it is not for me to do that. It is rather a question of whether the evidence is admissible and if it is, the factual issues are a matter for the jury.
Mr Morrissey further submitted that the orientation and position of his client’s vehicle could not be determined and that the drive through tests were therefore of little assistance to the jury. He submitted that the position of the vehicle in the lane was “all important” and that the camber of the road varies at the relevant location. He submitted that had Urquhart positioned the vehicle closer to the middle of the road he would have got a different result and thus, what he did is misleading. However as I have already observed, the position of Mr Farquharson’s vehicle at the time it diverged off the highway cannot be known. It is true that in this trial, as opposed to the previous trial, there is now evidence from the witness Dawn Waite about what she observed the vehicle driven by the accused was doing at a point well before the railway overpass near the dam. By the time her vehicle and that of the accused reached what would have been the critical point she had passed it and was accelerating away.
On behalf of the prosecution it was submitted by Ms Forrester that there was a significant dispute between the expert witnesses as to the alignment of the vehicle driven by the accused and the effect that any “irregularities” might have had on his vehicle. Whilst accepting that the report of the proposed defence witness, Enkelman, was not before the Court of Appeal it was effectively submitted that the issues between he and Mr Urquhart were matters for resolution by the jury. With respect, I agree with that submission.
During the course of argument I asked whether there is a difference between the argument now advanced and the manner in which the Court of Appeal dealt with the issue of the admissibility of the “drive-through” experiments. It was put that there is new evidentiary material from experts engaged on behalf of the accused and a change in circumstances. Be that as it may, the nature of the issue remains the same. The criticisms now made of this part of Urquhart’s evidence are of a similar nature as earlier made and in my view they raise issues which are for the jury to resolve. If it can be established that the vehicle driven by the accused was pulling to the right due to some malfunction in the front end of the vehicle then that might be the end of the relevance of Urquhart’s experiment, but the matter is in dispute and in my opinion, it is a factual issue for the jury to consider. An issue in this trial to which this evidence is relevant concerns how the vehicle behaved when driven on that road in the relevant vicinity. Even if Urquhart misunderstood the characteristics of the road, the vehicle performed as it did on the part of the roadway it was driven over. As the Court of Appeal observed[5]:
The submission that Urquhart drove a course not shown to resemble that of the applicant was founded on the basis that the drive through took place with the vehicle in the left-hand lane of the Princes Highway immediately after the overpass. As is detailed above, it was open on the facts for the expert to conduct the drive through on the (articulated) assumption that the vehicle was travelling in its correct lane.
[5]Para [135]
There is a further aspect to the argument. Mr Morrissey submitted that tests Urquhart undertook did not deal with the various locations along the road where control might have been lost. He did not deal with placement in the lane or orientation within the lane. He submitted that the inference that Farquharson’s vehicle would not have drifted to the right does not follow from the test and is not open. However in my opinion the evidentiary basis for the assumptions Urquhart made in conducting this test, and to which the Court of Appeal referred, remain and result in these tests being appropriate to be put before the jury. The criticisms, which may have substance, go to the weight of the evidence. Unlike the other category of evidence, I am not persuaded there is a risk of unfair prejudice or misuse of the evidence such as to require it to be limited or excluded altogether.
Next, the use of the computer program PC-Crash to plot the possible path of the Farquharson vehicle was criticised on the basis that it is the program which resulted in Urquhart’s opinion that there were three separate steering inputs. Mr Urquhart’s evidence was that the first of those inputs required a turn of the road wheel of 16° which was effected by a rotation of the steering wheel of some 220°. On the basis of at least Urquhart’s evidence before me on the Basha hearing, that is not correct.
In particular in relation to the program PC-Crash it is submitted that the material sought to be presented to the jury is misleading and unfair because it raises the danger that the evidence would be misused. It is submitted that the evidence which is available for the jury to examine does not disclose any deliberate driving into the dam and therefore the consequence of this material is that the evidence is unnecessarily complicated. The flaws in the evidence will, at best it is submitted, be distracting to the jury.
In his submissions, Mr Morrissey makes the point that the evidence of Mr Urquhart has changed since the evidence he gave at the last trial. Rather than say, as he previously had, that the vehicle turned right towards the dam with a 220 degree movement of the steering wheel, he now appears to cater for alternatives which involve an angle of departure from the road which is not as sharp as originally described. Notwithstanding that, the complaint remains from the accused that there are yet further possibilities which Urquhart has not provided computer simulations for.
It was further submitted on behalf of the accused that even if the opinion based on the animation is admissible, the graphic depiction ought to be excluded because of the danger of unfair prejudice and the danger of misleading and confusing the jury. For reasons I will give, I propose to uphold those submissions.
It is important to note that Ms Forrester, for the prosecution, agreed that the program PC Crash was not at the basis of Mr Urquhart’s opinion that there were three steering inputs between leaving the highway and reaching the dam. Indeed Mr Urquhart himself in evidence said that if the program PC Crash was taken out of the case, he would still offer the opinion that there were three separate “steering inputs” – even without that program his opinion would not change[6]. PC Crash, Mr Urquhart says, is used to demonstrate and “quantify” what those steering inputs were. He then agreed with counsel for the accused that without PC Crash he could not calculate the magnitude of the steering inputs, i.e. the amount by which the steering wheel was turned.
[6]Transcript at page 620
Ms Forrester later submitted that PC Crash was part of a body of evidence and that it is sought to be admitted “as an aid”[7] . It is to enable the jury to better understand the evidence to be given by Urquhart. The question, as I see it, is whether that will be the actual effect.
[7]Transcript at page 615
As to the PC Crash simulation, Ms Forrester submitted that the modelling on the program is “conservative” based on the evidence given at the first trial by Mr Urquhart. The prosecution submits that the fact that PC Crash assumes a flat surface makes the modelling “conservative”. In my opinion, it simply makes it wrong. Importantly, it is submitted that PC Crash is simply used to illustrate the opinion not formulate it. Ms Forrester also relied on the new situation that there is now an animation of more than one scenario. This is put forward as being something that will assist the jury to determine the issues.
It is true that the Court of Appeal rejected the contention on behalf of the accused in relation to this aspect of Urquhart’s evidence that the probative value of the evidence was outweighed by the risk of unfair prejudice. The question, though, is whether they will be given “great assistance” as the Crown submits. My own view is that there is a significant prejudice in this animation which affects whether it should be actually shown to the jury.
Further, the Court of Appeal did not appear to deal with the fact that the animation assumes a flat surface. Ms Forrester submits that the presumptions are all open to be explored in cross-examination, but the fact is that the jury will have seen the animation before such exploration. As I have indicated, I consider the animation is quite dramatic and captures the imagination quite graphically. However the animation does not represent the vehicle travelling over the surface it in fact travelled over, nor the vehicle that was being driven by the accused at the time.
The Evidence Act and Principles Concerning Experiments
The evidence now criticised and sought to be led is to some considerable extent in the nature of tests or experiments. Both the results of PC Crash and the supervised driving of the similar vehicle are experiments and need to be considered in that light although this was not the manner in which the submissions were put.
The Evidence Act refers to such evidence as follows commencing with section 53:
(1) A judge may, on application, order that a demonstration, experiment or inspection be held.
That is not the situation that confronts me. The experiments or tests have been done by Urquhart and are sought to be admitted into evidence. However, nonetheless, the Act provides some guidance on the topic I am concerned with. In s 53(3)(b) the Act provides:
Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following—
(a)whether the parties will be present;
(b)whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence;
(c)the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time… (emphasis added)
Section 54 provides:
The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.
The admissibility of such evidence has been the subject of consideration for a number of years. In Victoria, the Court of Criminal Appeal in R v Neilan[8] described how the question should be approached by a trial judge:
One desiring to make an experiment or test in court or to introduce evidence of an experiment or test made out of court should first show that the experiment or test is to be made or was made, as the case may be, under conditions and circumstances similar to those prevailing at the time of the occurrence involved in the controversy; otherwise, the courts will not, as a general rule, permit the making of the experiments or tests or the introduction of evidence thereof. It is clear, however, that the conditions need not be identical with those existing at the time of the occurrence, but it is sufficient if there is a substantial similarity of conditions. Minor variations in the essential conditions go to the weight rather than the admissibility, of the evidence.
There is no precise test or gauge to determine when the requirement of substantial similarity has been satisfied. This depends largely upon the purpose for which such evidence is to be introduced. Speaking generally, however, the measure of permissible variation of the conditions of the experiment or test from those of the occurrence is measured by whether such variation is liable to confuse or mislead the jury. When the conditions are so dissimilar from those of the occurrence in question as to tend to confuse or mislead the jury, the evidence of an experiment or test should be rejected. The question of similarity is one that lies within the sound discretion of the trial court, to be decided in the light of all the surrounding facts and circumstances. (Emphasis added)
[8][1992] 1 VR 57
That passage has been quoted with approval since[9] and would be the appropriate description of principle. In DPP v Jensen[10] an issue in the trial was the timing of particular events surrounding the shooting of the father of the accused. One such issue concerned the intensity of a fire that was burning in the slow combustion stove in the house. A test was conducted by police to assess whether the size and nature of the blaze was inconsistent with the account given by the accused. Eames JA (sitting as a trial judge) concluded that the evidence should be excluded in the exercise of his discretion because there was not a reasonable or substantial similarity between the conditions of the stove at the time of the experiment and at the time of the death to give the test relevance and reliability. His Honour referred to the judgment of the Court of Appeal in South Australia in R v Ireland[11] and in particular the following:
We are disposed to take, as correctly representing the principles of the law of evidence applicable in this State to experiments of the kind deposed to, a passage from the judgment of Edwards J in Shepherd v State ((1931) 51 Okl. Cr. 209; 300 Pac. 421), which runs:-
'The general rule as to the admissibility of the result of experiments is, if the evidence would tend to enlighten the jury and to enable them to more intelligently consider the issues presented and arrive at the truth, it is admissible. The experiment should be under circumstances similar to those prevailing at the time of the occurrence involved in the controversy. They need not be identical, but a reasonable or substantial similarity is sufficient. Several Courts have held that the lack of identity of circumstances affects only the weight and not the competency of the evidence provided there is a degree of similarity which will assist the jury.'
The results of the application of the principle will vary according to the special circumstances of such particular case, but we entertain no doubt as to the validity of the principle.
[9]R v Holmes [2008] VSCA 128
[10][2006] VSC 179
[11][1971] SASR 6 at 14-15
In R v Chalmers (Ruling No.1) [2009] VSC 482, Osborn J ruled that the Crown would not be permitted to lead evidence of an experiment which concerned the time required to dig a grave. The evidence was intended to demonstrate that it was inherently unlikely that the accused man dug a grave when he said he did as opposed to an earlier time because he did not have sufficient time to do it. Referring to Neilan and Holmes, Osborn J identified the principles to which I have just referred. He then identified points of difference which included the state of sub-soil, the variability of the soil, the dimensions of the grave and the identity of the person digging. He concluded that whilst some of the matters would not of themselves have resulted in the need for the evidence to be excluded, when taken together the result is that no jury could properly draw the inference the Crown contended for and the evidence had the potential to mislead the jury.
The issue was considered by the Queensland Court of Appeal in R v Dyke[12]. That case concerned an appeal against conviction in relation to an appellant who was charged with arson, fraud and attempted fraud. The case against him alleged that he had burnt his house down to obtain insurance money. In the trial there was “fire reconstruction evidence” which sought to demonstrate that the accused’s explanation for how the fire started was not possible. The explanation concerned an accidental dropping of a cigarette into flammable “thinners” which were being used for renovations. The Court set aside the conviction of the appellant and entered verdicts of acquittal. However, the Court concluded that a “demonstration burn” led to disprove the explanation of the appellant as to how the fire had started were sufficiently similar to make it relevant to and probative of the facts which the prosecution sought to prove by its tender. The Court went on to conclude that that evidence with all the weaknesses that were exposed in cross examination was incapable of excluding the hypothesis consistent with the appellant’s innocence.
[12][2009] QCA 339.
The application of these principles to experiments carried out prior to the trial by a specialised witness or expert witness would involve the application of any of ss. 135, 136 or 137 of the Evidence Act. Under s 135, I am concerned with whether the probative value of evidence is substantially outweighed by unfair prejudice or is misleading or confusing or is a waste of time. Section 136 would permit the use of evidence to be limited where I consider there is a danger that the evidence might be unfairly prejudicial or misleading or confusing. In criminal proceedings, section 137 requires the exclusion of evidence if the probative value of evidence is outweighed by the danger of unfair prejudice.
These Issues
So, in this case, the question for me about the evidence of Mr Urquhart in relation to PC Crash and his “drive through” activities is whether that evidence would enlighten the jury and enable them to more intelligently consider the issues presented and arrive at the truth. Were these things done under circumstances similar to those prevailing at the time the accused’s car went into the dam? The circumstances need not be identical. A reasonable or substantial similarity is sufficient. Do the differences affect only the weight and not the competency of the evidence? Is there is a degree of similarity which will assist the jury or might the jury be misled by these matters?
In the Court of Appeal, the issues the Court dealt with concerning the witness Urquhart were issues of admissibility. There was only one reference to the exercise of the Christie discretion and that was in relation to PC Crash which was used to create a computer simulation that was played to the jury. Three challenges were made to the simulation. The first was that it was irrelevant. The second was that it contained assumptions made by Urquhart that were not established by evidence and the Court rejected that submission. Finally, it was submitted that the simulation was more prejudicial than probative. The Court observed that “this ground was not pressed in oral argument”. They then expressed the view “…no sufficient reason was advanced why the simulation should have been excluded as a matter of discretion.”
Before me the approach has altered and the issue now really resolves to this. Accepting the conclusions of the Court of Appeal and the policy of the Evidence Act which is in favour of admission subject to the operation of the residual discretions and s 137, it is that latter consideration which is at the heart of the application that Mr Morrissey makes for the exclusion of parts of this evidence.
Particular problems with PC Crash
As to PC Crash, during a Basha hearing on 20 August 2007[13] Urquhart gave evidence to that effect noting that the program took no account of any irregularities in the surface including what was put to him as “bump steer”, being the consequent changes of direction upon hitting obstacles on the surface. The matter was raised with him during the cross examination before the jury and he said that the way the software is modelled and the way he modelled it was over a flat surface but he did not see any flat surfaces at the dam[14]. He also said no account was taken of the vehicle being “snagged” on the fence that it had obviously hit. In re-examination, the prosecutor referred to this topic. The witness referred to the limitations of the simulation and understanding what effect the “real world” simulations might have. He said it was the embankment that would have an effect and that effect would be for the vehicle to drift down the slope. That meant, he opined, that there was likely to have been even more steering inputs than he originally stated because one further input might be required to correct the vehicle against the natural tendency and would, in fact, be a correction to the left in order to get the vehicle to travel in a straight line. Thus, he suggested, the computer program was, if anything, conservative on the number of steering inputs that would be required.
[13]Transcript at page 214
[14]Transcript at page 1947.
I am concerned about the approach of the witness in relation to the use of the program. He has acknowledged the limitations of the program but then rather than accept that the process should be done in a manner which includes all of the relevant features, he has used the result of the imperfect analysis and then on the basis not of a re-working, but a patch work approach, has taken the results of the imperfect analysis and added a further feature as a matter of speculation.
Since the trial of this matter, the imperfections of the process have been obvious. As I understand it no attempt has been made to scientifically re-work the conclusion in a manner which takes methodical account of the topography.
In my opinion, this evidence has a degree of unreliability about it. If the animations are actually shown to the jury, there is in my view a significant danger of unfair prejudice to the accused. I will spell out what I think that danger is. Sergeant Urquhart is an experienced and trained specialist in major collision reconstruction. His evidence will carry significant influence. The computer simulation is quite graphic in its own way and conveys a quite stark impression. For those reasons I consider there is a danger that it could be misused. I am also of the opinion that to show the animation to the jury in circumstances where the topography and other obstacles are not accounted for and which is based on the vehicle the similarities to and differences from the car driven by the accused are largely unknown, could be misleading or confusing for the jury.
Conclusions
As to the use of the term “sharp” referring the nature of the divergence off the road by the vehicle, Mr Morrissey has submitted that the visible track in the grass approaching the dam was at a particular angle to the centreline of the road in the direction of Winchelsea but he says there is no factual basis for the an opinion about what the car did up the point where it crossed the aggregate. For the avoidance of doubt, I would not permit the witness to give evidence in chief that in his opinion, the turn made the vehicle driven by the accused was “sharp”. He can say what he believes the angle was but whether the turn is sharp or not is not something appropriate for him to offer an opinion on.
I also conclude that that relevant witness should identify those part of their observations which they indicate represent a change of direction by the vehicle driven by the accused before then offering their opinion that such changes of direction could only have occurred as a result of a “steering input”.
In my opinion, the filmed driving experiments in a similar car should be admitted. The evidence of the three driving tests by Mr Urquhart is relevant and admissible and is a means of demonstrating to the jury that the condition of the roadway on which the vehicle was driven, at least on that particular part of the roadway, may not have contributed to the vehicle veering to the right just prior to the vehicle entering the dam.
I understand the submissions about the differences between the vehicles but those differences are matters of factual dispute well within the ability of the jury to resolve. The video shows a Holden VN Commodore similar to that driven by the accused not diverging to the right when control is removed from the steering wheel while being driven in the left lane. I have already referred to the basis on which it was done in that manner. I would add that I agree with the Court of Appeal’s conclusion as follows:
Finally, it was said that the re-enactment was more prejudicial than probative. The re-enactment was undoubtedly an important aspect of the Crown case. Evidence as to what the vehicle would have done if it was not being steered was relevant in assessing the applicant’s account of unconsciousness. Had the test resulted in the vehicle veering towards the dam, it would have been supportive of the applicant’s account. As it was, the evidence was supportive of the Crown’s contention that the vehicle had been steered by the applicant. The defence was able to lead evidence from Axup as to his opinion of what a vehicle would do if there were no steering inputs. No persuasive argument was advanced on the appeal why the test should have been considered unfairly prejudicial. This complaint is not made out.
As to the use of PC Crash the evidence concerning that program appears to be in part relevant to the calculations made by the witness Urquhart in reconstructing this incident and the path followed by the vehicle. In particular, his evidence is that he depended on that program to measure the angle of the first divergence by the vehicle from the Princes Highway to the right off the road. He now offers evidence of a range of angles of departure from the road. The fact that there may be more alternatives that he has not analysed does not make those he has identified inadmissible. Thus, in my view it is permissible for him to refer to it for that purpose. However for the reasons I have identified, I will not permit the simulation to be played to the jury and impose that limit on the evidence pursuant to s 136 of the Evidence Act. Further, apart from the identification of the alternative possibilities as to the angle of departure from the Princes Highway by the accused’s vehicle, I will not permit any complete diagrammatic depictions of the course followed by the vehicle to the dam which are based on that program. The jury can see for themselves in the primary material being the photographs, the tracks in the longer grass which appear to have been made by the vehicle and on which Urquhart’s opinions depend. In my opinion the differences between the environment in which the complete incident occurred and that portrayed in the PC Crash animation are more than “minor variations in the essential conditions” going only to the weight of the evidence. Those variations are substantial and have the clear potential to mislead the jury.
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