Director of Public Prosecutions v Gibson (No 1)
[2024] VCC 1645
•24 January 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02051
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| DAMIEN GIBSON | Defendant |
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JUDGE: | Kelly | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2024 | |
DATE OF RULING: | 24 January 2024 | |
CASE MAY BE CITED AS: | DPP v Gibson (No 1) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1645 | |
RULING
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Subject:CRIMINAL LAW
Catchwords: Tendency Evidence - Culpable Driving – Conduct endangering life – All-Terrain Vehicle – Erratic driving manoeuvres – Risk-taking behaviour – disregarding safety requirement – sufficient probative value – lack of temporal connection between proposed tendency evidence and impugned driving.
Legislation Cited: Evidence Act 2008 (Vic)
Cases Cited:Hughes v R (2017) 263 CLR 338; Semaan v The Queen (2013) 230 A Crim R 568; R v Lewis [1913] VLR 227; R v Horvath [1972] VR 533; The Queen v Walker [2001] VSCA 28; R v Lockyer (1996) 89 A Crim R 457; R v Lock (1997) 91 A Crim R 356; Parachoniak v The Queen [2017] VSCA 347.
Ruling: Leave to adduce tendency evidence refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr A. Malik | Office of Public Prosecutions |
| For the Defendant | Mr P. Morrissey SC | Melasecca, Kelly & Zayler Barristers and Solicitors |
HIS HONOUR:
Introduction
1Damien Gibson (‘The Accused’), has been charged with 1 charge of Culpable Driving Causing Death and 6 charges of Conduct Endangering Life.
2As part of the Prosecution case, the Prosecution filed a tendency notice dated 3 May 2022 (‘The Notice’) seeking to rely on evidence to prove the tendency of the Accused to disregard safety requirements of his All-Terrain Vehicle (‘the ATV’) and drive in a manner contrary to express warnings contained in in the owner’s manual and the interior cabin of the vehicle.
3The Accused has opposed the proposed use of this tendency evidence, largely on the basis that the evidence of prior instances of driving sought to be relied on are too remote in time and their particular characteristics to form the basis of a tendency.
4Leave is required by the court before the Prosecution may be permitted to use this evidence.[1] These reasons comprise my ruling on the question of the admission of the tendency evidence.
[1] Evidence Act 2008 (Vic) s 97(1)(b) (‘Evidence Act’).
The Alleged Conduct
5By way of short summary, it is alleged by the Prosecution that on the 11th of September 2021, the Accused was driving the ATV around his property in Rosedale. The vehicle – which had room for the driver and three passengers – contained seven children all below the age of 12. All children were unrestrained and not wearing helmets or other safety gear.
6Whilst performing evasive driving techniques colloquially referred to as “donuts” or “circlework”, the Accused lost control of the vehicle, causing it to roll over onto its roof. This overturn resulted in the tragic death of a 6 year old child (charge 1), and the injuring of the other six (charges 2 – 7).
MacFarlane Reconstruction Evidence
7As part of the investigation into the crash, Detective Senior Constable Melanie MacFarlane attached to the Forensic Services Department prepared a report analysing and reconstructing the scene of the fatal collision dated 29 October 2021. Officer MacFarlane was asked to establish the circumstances surrounding the collision including the speed at the time of the fatal rolling event. Following her analysis, she concluded the following:
From the available information, at approximately 4:00PM on Saturday the 11th of September, an unregistered all-terrain vehicle (ATV) was conducting circle work or “donuts” in the paddock with eight (8) occupants on board, the adult male driver and seven (7) children when it lost control and rolled, tripping on a previous tyre mark.
8In her report, officer MacFarlane initially formed the view that the vehicle was travelling at approximately 28km/h when it commenced a tight right-hand turn that led to the roll-over event. At the committal hearing on the 8th of November 2022, officer MacFarlane amended this view such that the speed at the time of the right-hand turn could have been as low as 17.53km/h. When cross-examined at committal by Mr Morrissey SC, officer MacFarlane conceded that there is no scientific way of calculating the magnitude of the final steering input in relation to the right-hand turn.
The Alleged Tendency
9In its tendency notice, the Prosecution formulated the proposed tendency as the tendency of the Accused to:
Act in a particular way, namely to disregard safety requirements of this all terrain vehicle and drive it in a manner contrary to express warnings contained in the owner’s manual and inside the cabin of the vehicle by:
Driving the all terrain vehicle while it was overloaded;
Driving the all terrain vehicle with unrestrained passengers;
Driving the all terrain vehicle with passengers under 12 years of age; and,
Deliberately performing abrupt manoeuvres in the all terrain vehicle including fishtailing and donuts.
10The owner’s manual for the ATV dated 8 December 2020 details a number of relevant warnings, some of which are extracted below:
Failure to heed the warnings and safety precautions contained in this manual can result in severe injury or death. Your POLARIS vehicle is not a toy and can be hazardous to operate. This vehicle handles differently than cars, trucks or other off-road vehicles. A collision or rollover can occur quickly, even during routine maneuvres like turning, or driving on hills or over obstacles, if you fail to take proper precautions.
Always wear a helmet, eye protection, gloves, long-sleeve shirt, long pants and over-the-ankle boots.
Never operate this vehicle under the influence of drugs or alcohol, as these conditions impair judgement and reduce the operator’s ability to react.
Avoid loss of control and rollovers:
Avoid abrupt maneuvres, sideways sliding, skidding or fishtailing, and never do donuts.
Slow down before entering a turn
Plan for hills, rough terrain, ruts and other changes in traction and terrain.
Maximum capacity – Occupants: 4 (Driver + 3 passengers)
No person under the age of 12 may ride as a passenger in this vehicle. All riders must be able to sit with backs against the seat, both feet flat on the floor and both hands on the steering wheel (if driving) or on a passenger hand hold.
11A similar warning was pasted on the centre console of the ATV itself, in the following terms:
Require Proper Use of Your Vehicle
Do your part to prevent injuries:
• Do not allow careless or reckless driving.
• Make sure operators are 16 or older with a valid driver’s license.
• Do not let people drive or ride after using alcohol or drugs.
• Do not allow operation on public roads (unless designated for off-highway vehicle access) - collisions with cars and trucks can occur.
• Do not exceed seating capacity: 2 occupants.
12To prove the existence of this tendency, the Prosecution seek to rely on four prior episodes of bad driving, namely:
(a) On 23 August 2021, Ms Catherine Gilmore saw the Accused perform a donut in the ATV in a paddock, and then heard – but didn’t see – children squealing, following which the Accused yelled out ‘stop squealing or you can get out’;
(b) On a date between 23 and 30 August 2021, Mr Brad Ingram witnessed the Accused performing donuts on the ATV;
(c) On a date between 23 August and 4 September 2021, Mr Scott Stevens saw a video posted by the Accused on the social media site Snapchat of the Accused driving around in the ATV with three girls in the back of the cabin and one girl in the front. None of the girls were wearing seatbelts; and
(d) Between 23 August and 4 September 2021, Mr Scott Stevens saw a video posted by Mr Adam Lockett depicting himself, Mr Lockett’s son and the Accused driving around in the ATV, with the vehicle itself – driven by the Accused – fishtailing from left to right.
13It was submitted by the Prosecution that, in light of the above contextual information, the only logical conclusion that can be drawn by a jury is that on the 11th of September 2021 the Accused was driving the ATV erratically in a similar fashion to that which had previously been observed, resulting in the Accused making a sharp turn which caused him to lose control of the vehicle.
Prosecution Submissions
14It was submitted by the Prosecution that, in light of the previous instances of the Accused’s bad driving, it would not be open for a jury to conclude that the Accused had driven gently or carefully to the spot where the fatality occurred, given how he had previously and consistently driven the ATV.
15The Prosecution took me to the case of Hughes v R, where the High Court established a two-step analysis for determining whether to admit tendency evidence.[2] The court there held that the court considering the evidence is required to conduct an assessment of:
· The extent to which the evidence proves the alleged tendency; and
· The extent to which the alleged tendency makes the facts in issue more likely.[3]
[2] (2017) 263 CLR 338, (‘Hughes’).
[3] Ibid 348 [16].
16The Prosecution also took me to a number of passages from the case of Semaan v The Queen,[4] where the Court of Appeal also dealt with the issue of previous instances of driving used to prove a tendency:
It is clear, in my view that evidence of the manner of driving of a person prior to an accident in relation to which they are charged is relevant (and thus, subject to exclusionary rules, admissible) only if there is a sufficient relationship between the earlier driving and the driving which is the subject of the charges. The general principles were set out by Winneke P in Scott:
“There is no magic about this type of evidence. Whether the lack of care and attention at one point can be logically probative of lack of care and attention at another point must ultimately depend on whether the two points are so closely related in time, distance and circumstance to allow the tribunal of fact to draw an inference that the manner of driving at the second point was of the same character as the manner of the driving at the second point.”[5]
[4] (2013) 230 A Crim R 568 (‘Semaan’).
[5] Ibid 576 [32].
…
In my view, a non-exhaustive list of factors which may bear upon whether evidence has significant probative value in proof of an alleged tendency might include the number of occasions that the conduct displaying the alleged tendency have occurred; the temporal (and perhaps geographical) connection of such conduct with the charged conduct; the degree of similarity between the evidence of tendency and the charged conduct on the various occasions alleged (for example, its distinctiveness, such as showing a particular pattern or modus operandi); and whether the circumstances of the occurrence of the conduct and charged conduct are similar.[6]
[6] Ibid 578 [40].
17Mr Semaan was charged with one charge of Culpable Driving and five related dangerous driving offences. He was employed to convey cleaners from the snow fields of Mt Hotham to Omeo and Dinner Plains and back again. On 2 July 2012 he drove erratically and off the road. His vehicle rolled, killing one of his passengers. Evidence was led that he drove erratically on 29 June 2012, at speed and crossed over the dividing centre line. One witness said he fishtailed. He was said to have driven erratically on the return trip in the early hours of 30 June 2012. On 2 July 2012 he was said to be going from one side of the road to the other side, crossing white lines, cutting corners and driving fast.[7]
[7] Ibid 571 [9], 572-3 [13]-19].
18The Prosecution’s Tendency Notice relied on the appellant’s driving on the 29th and 30th of June as the first episode of tendency; his driving at midday preceding the rollover as the second instance; the first leg of the trip on 2 July as the third and his erratic driving in the lead up to the fatal roll over as the fourth instance.[8] The evidence was admitted at trial on the basis that it operated to rebut innocent explanation.[9]
[8] Ibid 573-4 [22]-[23].
[9] Ibid 574 [24].
19Priest JA’s judgment is the judgment of the Court. In quashing the conviction and ordering a retrial, the Court found that that the evidence adduced both lacked probative value to a fact in issue, therefore failing to meet the relevance test for admissibility, and lacked the significant probative value required for such evidence to be adduced as tendency evidence.[10]
[10] Ibid 575 [27].
20The court first reiterated that the test for relevance in the Evidence Act accords with the test at common law, and concluded that it was therefore appropriate for the court to analyse those cases which dealt with the position of the common law on this issue.[11]
[11] Ibid 575 [28].
21The court analysed a number of decisions which dealt with the factual and temporal connection between prior incidents of driving and those which caused the collision in each case, including the cases of Lewis;[12] Horvath,[13] and Walker.[14] The principle derived from the court’s analysis of these cases is that evidence of the manner in which an Accused was driving prior to an accident can only be admitted if there is “a sufficient relationship between that earlier driving and the driving which is the subject of the charges.”[15]
[12] [1913] VLR 227.
[13] [1972] VR 533 (‘Horvath’).
[14] [2001] VSCA 28.
[15] Semaan (n 4) 576 [32].
22In Semaan, the two instances of driving days before the accident and the observed driving on the first portion of the drive on 2 July 2012 were held to be too remote in time and too dissimilar to the ultimate impugned driving to be relevantly admissible.[16]
[16] Ibid 576 [33].
23In considering the admissibility of the evidence as tendency evidence, Priest JA reiterated that the test in the Evidence Act requires the evidence to have ‘significant’ probative value,[17] and drew on the observations of Hunt CJ at CL in the cases of Lockyer[18] and Lock[19] to hold that ‘significant’ within the context of tendency evidence must be ‘substantial’ rather than ‘important’ or ‘of consequence’.[20] In combination with the test contained in section 101(2) of the Evidence Act, the court concluded the test for admissibility of tendency evidence is that the evidence must carry a “high degree of cogency” before it becomes admissible.[21]
[17] Evidence Act (n 1) s 97(1).
[18] (1996) 89 A Crim R 457, 459.
[19] (1997) 91 A Crim R 356, 361.
[20] Semaan (n 4) 577 [37]-[38].
[21] Ibid 578 [39].
24Priest JA ultimately concluded that evidence of negligent driving prior to the alleged offending was insufficiently connected to this offending, temporally or otherwise, to warrant admission as tendency evidence.[22]
[22] Ibid 578 [41].
25I note at this point that no cases impugning the court’s rationale in Semaan have been brought to my attention and although the prosecution notes that Semaan was decided before Hughes, Priest JA’s analysis did not turn on a consideration of whether the impugned tendency evidence bore a striking similarity to the charged conduct or whether it demonstrated whether there was sufficient underlying unity. No argument was put to the court that Semaan is no longer good law or would be decided differently post-Hughes. I note that Hughes was decided in 2017, some six years ago.
26It was also conceded that, to the extent that Semaan remains good law, the case sets a very narrow aperture through which this form of tendency evidence can be admitted.[23]
[23] Ibid 575 [27].
27Insofar as Semaan establishes limitations on how previous instances of bad driving can be used to draw negative inferences, the Prosecution submitted that this case is distinguishable from previous cases where such evidence has been excluded. In support of this contention, the Prosecution submitted that there was a sufficient nexus in time between these prior incidents and the alleged offending, in that there were three episodes within three weeks of the collision. Although it was conceded in written submissions that these prior incidents were not directly proximate in time to the alleged offending, it was maintained that these prior incidents were not so distant they were irrelevant.
28The Prosecution also underscored the similarities in the witnessed driving – which involved fishtailing and performing donuts – with the manner in which the Accused is said to have driven the ATV at the time of the collision. It was submitted these prior instances have a marked similarity to the manner of driving engaged in on the day of the alleged offending. This similarity grounded the ultimate submission that this tendency evidence carries significant probative weight and should be admitted.
29The Prosecution also submitted that these prior episodes demonstrated a tendency on the part of the Accused to ignore warnings in relation to the use of the ATV. This, it was submitted, is relevant to the issue of recklessness underpinning the charge of Culpable Driving Causing Death.
Defence Submissions
30Both in written and oral submissions, Senior Counsel for the Accused opposed the introduction of any of the above evidence for the purposes of establishing the proposed tendency. The ultimate submission rested on the premise that the previous events relevant to the tendency notice lacked the necessary relationship of time, distance and circumstance with the impugned driving.
31I was also referred to the cases of Semaan,[24] Horvath,[25] and Parachoniak[26] as examples of relevant appellate authority on this topic.
[24] (n 4).
[25] (n 13).
[26] Parachoniak v The Queen [2017] VSCA 347 (‘Parachoniak’).
32The case of Horvath dealt with one charge of causing death by culpable driving. At trial, witness evidence was admitted which attested to the Accused driving in a similar manner to that which was alleged to have caused the ultimate collision 45 minutes before and 30 to 35 miles from the collision site. In upholding the appeal against conviction, the Court found that such evidence was too far removed from the ultimate collision to have probative value in establishing a tendency by the Accused to drive in a particular manner.[27]
[27] (n 13) 537-8.
33Mr Morrissey SC took the court to one passage in particular which, he submitted, dealt with the issues of remoteness and factual difference in prior events when dealing with tendency evidence:
Where acts of driving are substantially separated in time and place, evidence of one is not, in our opinion, evidence of negligence of the other, in the absence of some connecting link…failure to exercise care, depending, as it does, on the particular circumstances of the occasion is, on our view, not a constant feature of human behaviour, and, accordingly, failure at one place and time not forming part of the occasion in issue does not, in itself, tend to prove failure at another time and place.[28]
[28] Ibid 538.
34The case of Parachoniak concerned a tendency notice which sought to prove that the accused had a tendency to drive dangerously on the basis of evidence of a witness who was a passenger of the vehicle driven by the Accused earlier in the evening or the morning before the alleged offending.[29] Although the use of the evidence as tendency evidence was withdrawn prior to the appeal, the Court stated that it would not have permitted this evidence to be led as tendency evidence as:
Given the lapse of time and the change of circumstances, it was not reasonably open to draw the inference that [the Accused] still had the same state of mind during the later episode of the driving which resulted in the death.[30]
[29] (n 26) [19]-[24].
[30] Ibid [14], [72], [76].
35I was taken to these cases to demonstrate that the proposed evidence in this case should be excluded as temporally remote from the charged episode.
36It was submitted that each prior episode is too distant in time from the alleged offending to have significant probative value.
37It was also submitted that the prior episodes lack the constellation of factors present in the alleged offending, namely driving a large number of children at moderate speed in the front paddock, and thus each prior instance is in its own way too dissimilar from the alleged offending to establish the desired tendency.
38In response to the Prosecution’s concession that establishing recklessness critically relies upon adducing prior incidents which it says establishes a tendency, Mr Morrissey SC submitted that the importance of evidence to one side’s case should not be equated with the probative value of that evidence.
Ruling
39When asked if his researches had uncovered any instances where episodes such as those he had relied upon as tendency evidence had been admitted at trial and survived appellate scrutiny, Mr Malik conceded that he had not found any.
40When asked, the learned Prosecutor frankly conceded that if no previous instances of the accused performing “donuts” were admitted at trial, it would not be open to the Prosecution to invite the jury to accept that the Accused had been performing such a manoeuvre at the time his vehicle flipped. That is so because the evidence of the reconstructionist, which will include a concession that the Accused’s vehicle may have been travelling at 17.53 kilometres per hour when it flipped, is incapable of grounding an inference that the accused was performing such a manoeuvre.
41In its trial Opening, the Prosecution has characterised the reckless or grossly negligent driving underpinning the Culpable Driving Causing Death charge as a consequence of the Accused performing “circle work” or “donuts” when he lost control of the ATV and it rolled on to its roof.” There is no eye or ear witness who supports this characterisation of the Accused’s driving at the time of the fatal roll over and the reconstructionist’ s evidence cannot ground an inference that this, as opposed to turning right at 17.5 kilometres per hour, is the cause of the collision.
42Accordingly, the asserted tendency to deliberately perform abrupt manoeuvres in the ATV including fishtailing and donuts is critical to impugning the Accused’s driving as reckless or grossly negligent for the purposes of making out the Culpable Drive charge.
43The first episode relied upon in the Notice is said to have occurred on 23 August 2021. It involves an observation by the Accused’s neighbour, Catherine Gilmore, that the Accused performed a “donut” and rode towards his back paddock. She heard children squealing and the Accused yell, ‘stop your squealing or you can get out.’ The Prosecution seeks to put this episode before the jury to demonstrate a tendency on the part of the Accused to disregard safety requirements of his ATV, (to drive it) in a manner contrary to express warnings contained in the Owner's Manual by driving with children under 12 years of age in the ATV and by performing donuts.
44Ms Gilmore does not say what children were in the ATV on this occasion, whether they were the children of the Accused or someone else’s and nor does she estimate the ages or number of children. She can give no evidence about whether the children were restrained or unrestrained. That lack of detail is unsurprising given that she appears only to have heard children squealing. She does not say that she saw or identified any children. As such, her evidence is incapable of grounding a tendency to ignore express warnings, save the warning on one of the plates in the vehicle which says, “Do not allow careless or reckless driving.”
45The Prosecution seeks to put evidence of the “donut” performed on this occasion and one other to invite the jury to conclude that this is how the accused was driving at the time of the fatal rollover. Assuming that Semaan remains good law and the analysis of the Court of Appeal is relevantly unaffected by the High Court’s reformulation of the assessment of tendency evidence in Hughes, the evidence is insufficiently proximate to be used for the purpose identified by the Prosecution. Moreover, the evidence is insufficient to ground an inference that the children were under 12 or unrestrained. As such, it lacks significant probative value either alone or in combination with other evidence to be adduced. I will not permit that episode to be led as tendency evidence.
46The second episode relied upon by the Prosecution in its Notice is said to have taken place between the 23rd and 30th of August 2021. Two to three weeks before 11 September, the accused’s neighbour, Brad Ingram saw the Accused in the front paddock of the Accused’s property performing “donuts” on the ATV. He described the back wheels, ‘spinning, breaking traction and going around and around in circles.’ There were no passengers in the ATV at the time. The tendency identified is a tendency by the Accused to disregard the safety requirements of his ATV and a tendency to drive it contrary to express warnings contained in the Owner’s Manual, presumably by engaging in careless or reckless driving.
47In oral argument, Mr Morrissey SC contended that the evidence was likely admissible for purposes other than as demonstrating a negative tendency. The Defence are likely to elicit evidence of this episode to demonstrate that the ruts over which the ATV travelled on 11 September were likely created by this earlier episode of rambunctious driving. The Prosecution seeks to elicit that the Accused was on notice of the rough state of the paddock by engaging in this earlier bout of driving.
48Because its use as a piece of tendency evidence is critical to the jury’s assessment of the type of driving the accused engaged in on 11 September 2021, the evidence must be capable of rationally affecting the assessment of the probability of the existence of a fact in issue to a significant extent.[31]
[31] Hughes (n 2) 348 [16].
49The fact in issue is whether the Accused was performing a ”donut” at the time the Polaris tripped and rolled on 11 September 2021. This earlier episode occurred two to three weeks earlier and the features underpinning each of the 7 charges in the Indictment are largely absent. Central to the Prosecution’s case is that the Accused’s driving was done with contemptuous disregard for the safety of its seven underaged and unrestrained passengers. It is self-evident that there is no reliable corollary between the risks one exposes oneself to and those to which one is prepared to subject seven children under 12 including five of one's own. There is also an insufficient temporal nexus to permit this episode to be used as a piece of tendency evidence illuminating the quality of the Accused’s driving on 11 September 2021 or his state of recklessness then.
50As noted earlier, Mr Ingram will be called by the Prosecution and his observations will be led, but I will not permit his observations to constitute a piece of tendency evidence.
51The next episode identified by the Prosecution is said to date from between the 23rd of August and the 4th September 2021. The Prosecution proposes to adduce evidence from the deceased’s father, Mr Scott Stevens, that he saw a video posted by the accused in a Snapchat group featuring the Accused driving the ATV around his property with his daughters. Three girls are said to be in the back of the vehicle and none of the girls in the back was wearing a seatbelt.
52The tendency identified in the Notice is a tendency to disregard safety requirements, driving the vehicle whilst it was overloaded, driving with children under 12 years of age and driving with unrestrained passengers.
53Again, in order for this evidence to be led as exhibiting the identified tendency, the evidence needs to have significant probative value either on its own or in combination with other evidence to be presented. This evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent.[32] The incontrovertible evidence at trial will be that the Accused drove the ATV with seven passengers under the age of 12. The vehicle has four seatbelts only. In oral argument, I asked Mr Morrissey SC whether he intended to challenge the Prosecution’s contention that the seven children were unrestrained. The court has received a short further written submission on behalf of the Accused dated 22 January 2024. In it, Mr Morrissey says,
At trial, the Defence will not challenge the cautious but clear statement of DSC Gardner at [161] that, “My examination did not identify any damage or markings on any of the seat belt components consistent with any belt being worn at the time of the collision.” The Defence does not concede that the accused was aware that Olivia (or other children) were not or might not have been restrained.
[32] Ibid.
54The tendency evidence sought to be elicited does not go to demonstrating an awareness on the part of the Accused that the children were unrestrained and given that that has been identified as the fact in dispute, the probative value of the evidence is stripped of its significance. Whilst it might be argued that if the impugned tendency evidence was admitted, it would be capable of sustaining the inference that the accused, as driver, must have been aware the children were unrestrained, that is not the purpose identified in the Notice for its reception. Accordingly, I decline to admit this item of evidence as a piece of tendency evidence.
55I pause to note that if cross-examination of Prosecution witnesses raises the issue of whether the children were restrained on the fatal drive, I will give the Prosecutor leave to renew his application to introduce this evidence, but as the issues are presently framed, the evidence does not have significant probative value and cannot be introduced as tendency evidence.
56The fourth and final episode relied upon by the Prosecution in its Notice is said to have occurred between the 23rd of August and the 4th of September 2021. Again, it is proposed to have Scott Stevens give evidence of having watched a Snapchat video posted by Mr Adam Lockett. It is said to depict Mr Lockett in the back of the ATV, the Accused is driving and Mr Lockett’s eldest son is in the passenger seat. Mr Stevens observed the motor revving high and the vehicle going from left to right, ‘fishtailing.’ The video went for 8-10 seconds. This video is unavailable as is the video depicting the third episode of proposed tendency. The tendency identified in the Prosecution’s Notice is a tendency to disregard the safety requirements of the ATV by driving it in a manner contrary to express warnings contained in the owner’s manual and inside the cabin by fishtailing the ATV.
57In order for the Prosecution to make good the assertion at paragraph 5 of the Summary of Prosecution Opening, that the Accused was performing circle-work or “donuts” when he lost control of the ATV, it needs to import a prior episode of bad driving and invite the jury to accept that that previous episode can illuminate what the crime scene, the reconstruction and the witnesses cannot. It asks a tremendous amount of the evidence to fill in blanks in the Prosecution narrative. That may be a legitimate use of tendency evidence and I remind myself that Hughes stands for the proposition that there is no need to identify underlying unity, striking similarity or modus operandi in order for tendency evidence to be introduced.[33]
[33] Ibid 354 [34].
58However, in assessing whether this piece of evidence has significant probative value, I bear in mind that it is no part of the Prosecution case that the Accused “fishtailed”, revved the engine of the ATV or put fellow adults at risk. The hallmarks of the Prosecution case are, as I’ve said earlier, that the Accused exposed 7 children under the age of 12 to risk by driving the ATV recklessly by consciously and unjustifiably disregarding a substantial risk that death of another person or the infliction of grievous bodily harm may result from his driving. The 8-10 second Snapchat video says little if anything about exposing his fellow passengers to any risk of injury, let alone a substantial risk of death or grievous bodily harm.
59In assessing whether this piece of video footage, as described by Mr Stevens, possesses significant probative value I note that it is not possible to determine whether the “fishtailing” depicted was deliberate or accidental, whether it denoted a loss of control of the vehicle, whether it placed any of the occupants at risk or whether it was a consequence of the vehicle becoming bogged. There is no way to review the video.
60Accordingly, it is very difficult to assess its probative value except to note that it is relied upon as an episode of bad driving. I am not satisfied that this evidence, either alone or in combination with other evidence to be adduced, possesses significant probative value in the sense that it is being relied upon by the Prosecution to rationally effect the assessment by the jury of the probability of the existence of a fact in issue to a significant extent, namely that the Accused performed circle work or a donut at the time of the fatal rollover.
61In saying that, I have not lost sight of the broader tendency demonstrated by the video, namely a tendency to drive recklessly. That general tendency has not been identified in the Prosecution Notice, but even if it was I would struggle to be satisfied that the evidence had significant probative value given the limited information conveyed by an 8-10 second clip featuring conditions, personnel and a manoeuvre distinct from the one the Prosecution says the Accused was performing at the time of the fatal roll over. I am further unpersuaded that this material has significant probative value as a consequence of the fact I adumbrated earlier, namely that there is no reliable corollary between risks one takes alone or in the company of fellow adults and those said to have been taken with vulnerable unrestrained children, five of them the Accused’s own. Accordingly, the Prosecution will not be given leave to adduce this evidence as tendency evidence.
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