Director of Public Prosecutions v Goonan
[2023] VCC 354
•28 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01498
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK GOONAN |
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JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF RULING: | 28 February 2023 | |
CASE MAY BE CITED AS: | DPP v Goonan | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 354 | |
REASONS FOR RULING
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Subject:Criminal Law
Catchwords:
Legislation Cited:
Cases Cited:Doney v The Queen (1990) 171 CLR 207; Attorney-General’s Reference (No.1 of 1983) [1983] 2 VR 410; Smith (1993) 117 A Crim R 298; Cengiz [1998] 3 VR 720; DPP (no.2 of 1993) 70 A Crim R 323; R v Debs [2007] VSC 168; R v Barnes [2008] VSC 66;
DPP v Byrne [2016] VSC 346; R v Frank [2021] VSC 7
Ruling: No case to answer in relation to Charges 1, 2 and 3
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms R. Harper | Office of Public Prosecutions |
| For the Defendant | Mr H. Rattray | Balmer & Associates |
HIS HONOUR:
Introduction
1Jack Goonan is charged on indictment M11818135.1 with one charge of culpable driving causing the death of Jordan Purcell on 16 June 2019; one charge of failing to stop immediately after an accident causing death or serious injury and one charge of failing to render assistance after such a collision.
2He is pleading not guilty to those charges and is currently facing a judge-alone trial before me.
No Case to Answer
3The Crown case has closed. The accused has made a submission of no case to answer in relation to the 3 charges on the indictment.
4The principles by which a submission of no case to answer is to be determined have been settled and are long standing.
5In Doney v The Queen (1990) 171 CLR 207, 214-215, the principle was stated by the High Court as follows:[1]
[1] See also AG’s Reference (No.1 of 1983) [1983] 2 VR 410; Smith (1993) 117 A Crim R 298.
If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.
6The Court also said in Doney:
Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded.
7It is apparent from the principle enunciated in Doney that the power of a trial judge does not extend to the directing of an acquittal on the basis that a verdict of guilty would be unsafe or unsatisfactory.
8In R v Cengiz [1998] 3 VR 720, 721, Ormiston J observed:
If it can be shown that it is open to the jury to hold that all of the hypotheses should be excluded as irrational or unreasonable, then it is important to allow the jury to apply their collective minds to the issue, because as was said later in Doney, ‘The purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters’.
9In the same case at p.735 Harper J said:
It sometimes happens in a circumstantial case that the evidence is not in dispute, but the parties disagree about the inference or inferences which should be drawn from the facts. In such cases, the judge must take the case away from the jury if, and only if, an inference consistent with innocence is not only open on the undisputed evidence but is also an inference which cannot be rationally excluded.
10In a case stated by Director of Public Prosecutions (no 2 of 1993) (1993) 70 A Crim R 323, 327 King CJ stated that the trial judge:
Is only concerned with whether a reasonable mind could reach a conclusion of guilt beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.
11His Honour later said:
If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider the evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case, that implies that even if all the evidence for the prosecution were accepted and all the inferences most favourable to the prosecution which are reasonably open to be drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt; or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.
12These principles have been considered and applied in the Supreme Court of Victoria: see R v Debs [2007] VSC 168; Kaye J; R v Barnes [2008] VSC 66,
Forrest J; DPP v Byrne [2016] VSC 346 Dixon J; and R v Frank [2021] VSC 7, Croucher J.
Background Circumstances
13On the evening of 15-16 June 2019, after playing football earlier in the day,
Jordan Purcell attended the Alexandra Football Club reverse raffle function. At some time between 11:30 and 11:45 pm, he handed a beer to Caitlin Haggis. That was the last time Mr Purcell was seen before the collision.14Mr Purcell was staying at Max Church’s house for the night. There was an after party or drinks planned at that house. It appears Mr Purcell was struck by a vehicle as he was walking to Mr Church’s house. He was discovered by Peter McEldrew after 12:03am (as this is the time McEldrew notes he left the address where he was babysitting) as Mr McEldrew drove along Hall Street and found Mr Purcell lying on the roadway. Mr Purcell was then assisted by friends who were driving by in a taxi a short time later. Police and ambulance attended, but Mr Purcell died of his injuries on the way to hospital.
15The weather that night was cold and it was extremely foggy. Although visibility distance estimates varied, visibility was agreed as very low. The road was damp.
16The collision occurred outside the Alexandra Secondary College on Hall Street which runs approximately north-south in Alexandra. It is intersected at the north by the Maroondah Highway and at the south (below the collision point) by Nihil Street which runs roughly east-west from a T-intersection east from Hall Street. The informant Detective Senior Constable Lombardi produced a map (Exhibit 3) and photos of the collision site.
17Police reconstruction expert Sergeant Dr Hardiman concluded:
(a) Mr Purcell was walking south on the Hall Street roadway about 2 metres from the eastern edge of the bitumen road. The roadway was unmarked but he was close to the notional centreline;
(b) He was struck from behind by a car travelling south. He was struck whilst walking; not standing or lying;
(c) After examining his injuries, Dr Hardiman concluded Mr Purcell was struck by a blunt edge or blunt profile vehicle with a high clearance, such as a
four-wheel-drive or an SUV. The injuries were also consistent with the vehicle being fitted with a bull bar. A Toyota Hilux fitted with a bull bar fell within the range of possible vehicles responsible for the collision;(d) The vehicle speed at impact is estimated as under 40 km an hour. The vehicle was estimated as travelling more specifically at 36 – 38 km/h with a guaranteed range of 33 – 41 km/h;
(e) From the injuries sustained, Mr Purcell was hit by the front of the vehicle and not by a side swipe. Dr Hardiman estimates with a 90 – 95% degree of certainty that the injuries occurred at first impact. Dr Hardiman expresses 100% certainty that the injuries did not come from a secondary impact such as being run over after the primary strike;
(f) The injuries were not caused whilst Mr Purcell was on his hands and knees or lying on the road. The injuries were not caused by the bottom of the vehicle as Mr Purcell lay on the road; and
(g) Specifically, Dr Hardiman examined the hexagonal injury on Mr Purcell’s left upper thigh. Although injuries are outside the parameter of her expertise, she was able to conclude that the injury occurred while Mr Purcell was upright and not prone. The hexagonal injury could have been from a fitting to the car or the bull bar or to an item carried by Mr Purcell in his pocket.
18Dr Heinrich Bouwer, forensic pathologist, examined Mr Purcell’s injuries and concluded Mr Purcell died of multiple injuries sustained in a collision with a motor vehicle.
19Dr Bouwer noted the injuries sustained and those photographed in Photos 62 and 65 of Exhibit A. The injury depicted in those photographs is described as a patterned abrasion caused by a hexagonal object with a somewhat hollow centre, such as a bolt or other similar object.
20Dr Bouwer stated in re-examination that it was possible that the abrasion may have been caused by an object in Mr Purcell’s back pocket, but he thought that this was highly unlikely.
The Case against Jack Goonan
21The accused Jack Goonan attended the Alexandra Football Club function after playing football that afternoon on 15 June. He told police he consumed about
10 – 12 mid-strength stubbies up to the close of the function.22At 6:15 AM on 16 June, Mr Goonan gave a blood test which returned a reading about 0.103% BAC. Dr Gaya undertook a read back and estimated that at around midnight on 15 - 16 June (that is, the estimated time of the collision), and taking into account Mr Goonan’s height, weight and age, he would have returned a BAC in the range of 0.165 – 0.227%.
23Dr Gaya gave evidence that empirical testing shows that at 0.1%, a driver is seven times more likely to be involved in a collision. He gave other evidence of the impairment of alcohol on driving ability and concluded that at the estimated BAC of the drive meant that the accused was incapable of exercising proper control over the motor vehicle, regardless of whether he drove successfully or not.
24Harrison Murdoch gave evidence that he played reserves football on 15 June and stayed for the football club function. He drank beers from 2 PM – midnight and drank 'a lot of beer' and felt 'pretty intoxicated'.
25Mr Murdoch was a passenger in the car driven by the accused from the football club function to the after party drinks held by Max Church in Rose Street, Alexandra. He sat in the back left of the car on the baby booster seat.
26Mr Murdoch was cross-examined by Ms Harper after I found he was an unfavourable witness. He agreed that he had previously told police that he knew Jack Goonan was drinking through the course of the night. Mr Murdoch further agreed under cross-examination that as they were driving, two other passengers Beth and Jordy said, ‘What was that?’
27In his evidence, Mr Murdoch said he did not see or feel anything and that Jack did not stop the car until it arrived at Max’s house where Jack parked out the front.
28After he had been at Max’s place for about 10 minutes, Jack, Isaac and
Mr Murdoch decided to start walking back to Isaac’s place to get some beers.
Mr Murdoch took a call from Beth and walked back to Max’s place.29Isaac Hedger also attended the football club function. He consumed more than
15 standard drinks of beer, Bundaberg rum and other drinks. He got into the car driven by Mr Goonan to go to Max’s place.30Mr Hedger was in the front passenger seat. He stated it was extremely foggy and he could see only about 2 metres in front, if that. Mr Hedger believes that when he got in the car he stated, ‘We can’t see shit, it’s probably not a good idea’. He cannot remember the reaction of the other occupants.
31As the car drove along, the windows were put up and down a few times trying to see out to where they were going. Mr Hedger put his head out the window because of the fog.
32Everybody in the car was pretty drunk so there was lots of voices carrying on and yelling and shouting.
33Nothing significant happened that Mr Hedger can recall. They hit many potholes along the way but nothing significant. Somebody said something about the potholes but he cannot say who it was.
34The car was not travelling quickly.
35They arrived at the party and Mr Hedger stayed about 15 minutes to half an hour. He then left the party with the accused and Mr Murdoch to take 'the normal route home' around the high school. As he walked around the corner he saw headlights and what appeared to be a body in front of the lights. Hedger got to within 20 to
30 metres.36Mr Hedger walked halfway back to Max’s place but called his parents to come and get him. His parents took him back to the scene of the collision.
37Mr Hedger was cross-examined by Ms Harper when I found him to be an unfavourable witness. He agreed under cross-examination that he told police:
While we were driving up Hall Street, I recall us hitting a pothole or something. It didn’t mean much to me at the time. And everyone was just talking in the car and it felt like a normal pothole that you hit on a country road. That being said, we hit several potholes between the footy club and the house, so I only thought of that one after this night. No one really said anything, but I heard someone in the back say something like, “I think we just had [perhaps meaning hit] a cat” or something like that.
38Bethany Cairns played netball in the afternoon, watched the football game where she consumed about half a bottle of red wine, attended a 21st party in Alexandra and then returned to the football club for the raffle function. She stated in evidence that she drank a lot that night.
39Cairns left when the football club function was finished to go to the after party and got into the car driven by Jack Goonan. Ms Cairns described the route taken by the car; it went past the high school and left into Nihil Street and into Rose Street. As they were driving, someone said ,‘What the fuck was that?’ She does not know who said it but they were coming up Rose Street at the time and she and
Jordan Richards were having a joke that it might have been a cat or a pothole.40They arrived at Max’s place at 12:06 AM. Ms Cairns is certain of the time as she made a call on arrival.
41In cross-examination, Ms Cairns marked a map where she recalled the bump occurring. The bump, the remark ‘what the fuck was that?’ and Jordan’s cat remark occurred in Rose Street.
42She stated the music was going in the car, there was general chitchat and talking through the car.
43In re-examination, Ms Cairns stated that it wasn’t not possible that the bump and the comments occurred somewhere else along the trip.
44Jordan Richards arrived at the football club function at about 8:30 PM and stayed until approximately midnight. He picked up Bethany Cairns from the 21st party and they went to the function. Mr Richards planned to go to Max’s place. He got in a car with Bethany Cairns and Harrison Murdoch. He did not know whose car it was. Isaac was in the front passenger seat and Mr Richard sat behind the driver.
45The weather was cold and foggy and he could not see far in front of the car – about 4 metres.
46As the car turned the corner into Rose Street where Max’s house is, Mr Richards felt a nudge.
47Caitlin Haggis was at the football club function. She had spoken to Jordan Purcell. He got her a drink and gave it to her at 11:45 pm. She then agreed that it would have been between 11:30 and 11:45pm.
48The accused was arrested by local police before 6 AM on 16 June 2019. He told three lies to police:
(a) First, he lied about which route he took to drive from the football club function to Max Church’s house;
(b) Second, he lied when he said he did not hear any comments from any of the occupants of the car about hitting a cat as they drove to the house party on Rose Street;
(c) And finally he lied when he said that when he arrived at the party he called his wife to pick him up and take him straight home.
49Each of the lies was corrected during the course of the record of interview; that is, he admitted:
(a) Driving down Hall Street on the way to the party in Rose Street;
(b) Hearing someone say they thought the car had hit a cat; and
(c) That he (the accused), Murdoch and Hedger commenced walking from the party towards Hall Street on the way to Hedger’s home when Hedger saw something and as he approached, Mr Goonan panicked and left.
50Informant Detective Senior Constable Lombardi gave evidence that he took over the investigation and case management about eight months after the collision. Although police interviewed Isaac Hedger, he (Hedger) nominated Jack Goonan as the driver. Since that time there has never been another identified suspect.
51DSC Lombardi stated that multiple DNA swabs were taken from the passenger side of the bull bar of the accused’s car but the results were inconclusive.
52A listening device was fitted in the vehicle for 90 days but no admissions were obtained.
53Mr McEldrew was cleared as a suspect immediately. His car was not examined.
54There is no hexagonal object on the bull bar of Mr Goonan’s car.
55There was no particular investigation of the volume of traffic down Hall Street around the time of the collision.
Defence Submissions
56Mr Rattray for the defence submitted the following in support of the application for no case to answer:
(a) The case against Mr Goonan is circumstantial;
(b) There is no forensic evidence which connects the car to the collision. For example, multiple DNA swabs from the Toyota’s bull bar were taken but the results were inconclusive;
(c) There was no damage to the car or bull bar to connect it to the collision;
(d) There is no hexagonal shape on the accused’s car’s bull bar which could have caused the injury to Mr Purcell;
(e) The occupants of the car did not see Mr Purcell nor did they feel anything like the car making contact with a pedestrian. Rather, some occupants thought they may have hit a cat or a pothole. Two witnesses stated that this occurred in Rose Street and not in Hall Street;
(f) There is no evidence as to how Mr Purcell got to Hall Street or as to what time he was struck by a vehicle;
(g) The police investigation provided no evidence of traffic along Hall Street;
(h) Police made no particular investigation of Mr McEldrew;
(i) In all, the prosecution case for Charges 2 and 3 presupposes guilt on
Charge 1 and there is no evidence on which the trier of fact can be satisfied that it was the accused’s car, as opposed to another four-wheel-drive or SUV fitted with a bull bar, that struck Mr Purcell.57Ms Harper for the Crown submitted that whilst the case is based on circumstantial evidence, the only reasonable inference open is that the accused’s car struck
Mr Purcell.58Ms Harper submitted that the Crown case for guilt is based on the following:
(a) The CCTV evidence from Chookie’s Furniture places the accused’s vehicle in the vicinity (that is heading south on Hall Street towards Maroondah Highway) at 12:04am, arriving at Max Church's place at 12:06am;
(b) There was an absence of traffic on the night: see the evidence of Jackson the taxi driver, Haggis, Steiner and the accused in his answers in the record of interview;
(c) Occupants of the accused’s car stated that they hit ‘something’. Ms Harper submitted that my assessment must take into account the level of intoxication of the occupants and the low level of visibility on the night;
(d) It was submitted I ought to conclude on the basis of Dr Gaya’s evidence that the accused was incapable of maintaining safe control of a car;
(e) The accused’s ultimate answers in the record of interview demonstrate that he was concerned to return to Hall Street and not Rose Street to see if he had hit ‘something’;
(f) Dr Hardiman’s evidence is 'overwhelmingly consistent' with it being the accused’s vehicle that struck Mr Purcell; not to the exclusion of all other vehicles, but consistent with it being his vehicle;
(g) Dr Bouwer gave evidence that Mr Purcell died of injuries from a car accident and that he sustained an injury that was possibly not from a bolt or some other object fixed to a car or bull bar. Ultimately, Dr Bouwer thought it was highly unlikely the abrasion was caused by a loose object in Mr Purcell’s pocket.
(h) Finally, the accused lied in his record of interview about the route taken to drive to the party and about hearing a comment made by an occupant whilst in the car about hitting a cat.
Relevant Elements the Charged Offences
59It is obvious that for there to be a case to answer, the Crown must prove that the car driven by the accused caused the death of the Jordan Purcell.
60It is also obvious from the foregoing that there is no direct evidence from any witness to such a collision occurring. Rather, the Crown case for guilt is based entirely on circumstantial evidence and inferences which may be drawn from that evidence.
61I turn back to the submissions made by the Crown for drawing the inference of guilt from the evidence.
62First, timing. As Ms Harper narrowed the timing for the occurrence of the collision to between 12:04 am when the accused's car was captured on CCTV footage at the point north of the collision site travelling on Hall Street, and to 12:06 am when an occupant of the car, Bethany Cairns, made a call upon arrival at Max Church’s house.
63In my view, the range may be unduly restrictive. Witnesses Murdoch and Hedger both gave evidence that they stayed for a period of time at Max Church’s place (i.e. after; that is from 12.06 am for anywhere between 10 and 30 minutes) before leaving to walk back to Hedger’s place with the accused. It was then that Isaac Hedger saw the car’s headlights and Mr Purcell lying on the road. It appears that only Peter McEldrew was present at that time and not the taxi, its occupants or the ambulance and police.
64Peter McEldrew stated that he left the place he was babysitting at 12:03 am but gave no other time of coming across Mr Purcell.
65Piers Jackson picked up his three passengers at about 12:05 am and first took Steven Steiner to drop some gear off at a residence before continuing on to
Hall Street. He does not say what time he arrived upon the scene.66In this way, the time frame of the collision cannot necessarily be too restricted as there is no evidence that Peter McEldrew came upon Mr Purcell only moments after the accused’s car travelled down Hall Street.
Traffic
67I accepted that the road users did not see other cars on the road, but there was not a great deal of evidence about that. It is apparent from Haggis that other cars were leaving the football club at the conclusion of the function and just before she and her friends got into Mr Jackson’s taxi. It is therefore reasonable to conclude that McEldrew, the accused and Jackson’s taxi were not the only cars driving in Alexandra on the night at that time.
68Other matters, however, may be used to draw inferences consistent with guilt.
69The occupants of the car gave evidence that they thought they 'hit something'.
70Cairns and Richards say the remark of which I have spoken was made at
Rose Street. The accused stated in his record of interview that the so-called cat comment was made at Max’s house. Hedger stated to police and then in evidence that it was while they were driving up Hall Street that they a hit a pothole or something, but it didn’t mean much to him at the time; it felt like a normal pothole that you hit in the country and they hit several potholes on that trip.71Murdoch and Hedger left the party, together with the accused. Murdoch and Hedger intended to go to Hedger’s place to drink more beer. The accused told police (I read from Questions 657 – 664 record of interview.)
Q 657 'Tell us what happened, mate.' ---
A'Then we went up that road, okay. So we went up that road and we got there. When we got back, that's when someone said, "Let's go back and have a look to see if there's anything.” We didn't even think anything of it at the time. We were just having a cigarette. Then we got there and that's when the car was moving.'
Q 658 'Stopping?'
A (658 -) 'Yeah, it must have been stopping. So then I've gone through the high school and walked up home. I didn't see anything on the road.'
Q663 'But you knew something was up?'
A 663/ 4 'Something must have been up, yeah, and I panicked because honestly I didn't know that it was a body or anything. I had no idea so I panicked and walked away.'
72Further to that, the accused lied to the police about the route he drove to get to the party.
73The next major factor relied upon by Ms Harper for the Crown was based on
Dr Hardiman’s evidence, that Mr Purcell was struck by a high clearance blunt edge vehicle such as a four-wheel-drive or an SUV, fitted with a bull bar.74The accused drove a Toyota Hilux with a full bull bar which is generically consistent with the vehicle that struck Mr Purcell.
75Of course, inferences consistent with guilt must lead to the conclusion that guilt is the only reasonable hypothesis or inference open on the evidence.
76The cases I have referred to make it clear that, at least in a jury trial where the judge's function is separate to the trier of fact, the judge must find that there is a case to answer and leave the matter to the jury’s determination if there is evidence available which is consistent with guilt, no matter how weak or tenuous. As King CJ observed, a case must not be taken away at the close of the Crown case unless on the Crown case at its highest and with all evidence from the Crown accepted, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt. Put another way, His Honour said a no case submission will only be upheld where the Crown case at its highest cannot reasonably exclude all hypotheses consistent with innocence.
77At this point, I observe that there is some artificiality in this test in circumstances where the trial is conducted by a judge alone and the defence has advised that it will not call any evidence. In Attorney General’s Reference (no.1 of 1983) [1983] 2 VR 410, 416 the Full Court observed:
Where the same tribunal is judge of both of law and fact, the tribunal may be satisfied that there is a case for an accused to answer and yet, if the accused chooses not to call any evidence, refused to convict on the evidence. That this is the correct logical analysis appears clearly from May v O’Sullivan.
78Next, I observe that in a case provided to me, R v Frank, Croucher J observed (at [150]) that in a case based wholly or partly on circumstantial evidence and inferences,
The no case test and the unsafe and unsatisfactory verdict test almost converge and that the remaining differences between them are not always so obvious. To that extent, there may be, perhaps, some controversy.
79I emphasise that in my analysis which I am about to undertake, I endeavour to avoid controversy.
80It is necessary to turn to the next aspect of the analysis of the evidence and that is the hexagonal abrasion injury appearing on Mr Purcell’s left upper thigh.
81I repeat the conclusions of Dr Hardiman:
(a) That Mr Purcell was struck from behind whilst walking; that is, upright and not standing or whilst down on his hands and knees, or lying down;
(b) That he was not run over, so the hexagonal injury was not applied by the underside of a vehicle or by a secondary strike.
82The Crown opened its case before me on the basis that although Dr Hardiman would give evidence that nothing in the injuries was consistent with the pedestrian having been run over by a car, Dr Bouwer
will opine that the pattern and abrasions on the left upper thigh was caused by a hexagonal object with a hollow centre, such as a bolt. That is consistent with the bolt, in his opinion, under the vehicle which fits this morphology. Ultimately Dr Bouwer will opine that all of the injuries could be explained by being run over by a vehicle or being hit by a vehicle and then run over, or being hit by a vehicle and falling to the ground.
83Dr Bouwer did not ultimately give evidence that Mr Purcell was run over, or hit by a vehicle and run over. He did not give evidence that the injury was consistent with a bolt under the vehicle.
84The Crown case therefore has not and cannot make any link between the hexagonal abrasion injury and the Toyota Hilux with bull bar driven by the accused.
85The Crown has not otherwise called any evidence to explain the abrasion, but for the speculation (upon which Dr Bouwer casts significant doubt), that it may have been caused by an object in Mr Purcell’s rear pocket. Nothing was found in his clothing or on the roadway or in the vicinity collision which would explain this injury.
86The question arises: is the presence of the hexagonal mark abrasion, which cannot be linked to the accused's car, a piece of circumstantial evidence which provides a hypothesis consistent with innocence?
87The hexagonal abrasion, both before and after Dr Hardiman gave evidence, has been placed in focus and has been a key issue relied upon by the defence as giving rise to a reasonable doubt about the accused’s guilt in this case. So much is apparent from the fact that the Crown raised it as being explicable, as I have just outlined, in its opening address before me.
88It is both trite and repetitive to observe that, however it was applied to Mr Purcell, and it appears that Dr Bouwer considers it most likely to be a feature of the car involved in the collision, the hexagonal abrasion has not been identified and linked to the accused's car.
89That raises the question: can it be ignored?
90If the injury could have been matched to a feature of the bull bar on the car driven by the accused, the Crown would have undoubtedly been entitled to rely upon it as a significant piece of inculpatory circumstantial evidence.
91In my view, the injury cannot be ignored as a piece of circumstantial evidence because it is reasonable to conclude that it was an injury applied during the collision, and that it bears a distinct, clearly geometric shape of a bolt or the like.
92What I am left with is this:
(a) The collision occurred at a time when it was possible for the accused to have been responsible for it;
(b) Very few cars were on the road; none were seen by the witnesses called, but the accused was in fact out there and driving through the location where the collision occurred;
(c) At the time of driving, the accused was significantly intoxicated and in the expert witness' opinion, incapable of the safe control of a car;
(d) The occupants of the car felt a bump but no one saw an upright pedestrian on the road being hit. The occupants of the car thought that they'd hit a cat or a pothole.
(e) A remark was made to that effect. When others left the party sometime after 12:06 am, the accused went with them, and at some point as he walked towards Hall Street, he became concerned to look to see what he could see. He panicked and left without saying anything; and
(f) The accused lied to police about the route he drove to the party, but he corrected that and other things he lied about in his record of interview.
93If that was the extent of the evidence, it may be enough to find a case to answer, notwithstanding that it could not be described as a particularly strong case.
94However, I must consider the injury to Jordan Purcell at the time of the accident as being a defined and geometric shape, such that the reconstruction expert concluded that it was applied at the time of the collision on primary strike and that there was no secondary strike to cause that injury.
95Then, the pathologist concluded that the injuries caused by a hexagonal bolt or the like.
96No such bolt was found on the accused’s bulbar or car such that it could cause the injury on strike.
97I am left then with the following: was the injury caused by the accused’s car, or by another car, or is there another explanation for the injury’s presence? Dr Bouwer considers the third alternative to be highly unlikely.
98In the circumstances where I must be satisfied that the Crown case excludes all reasonable hypotheses consistent with innocence, I am then left with the question of whether the injury was caused by the accused’s car or by another car?
99I cannot reasonably exclude the reasonable inference that Jordan Purcell was struck by another car. Put another way, when I take the Crown case at its highest, the Crown cannot exclude the reasonable hypothesis consistent with innocence.
100I therefore find the accused has no case to answer on Charges 1, 2 and 3. There is no occasion to consider the statutory alternative to Charge 1.
101I order that verdicts of not guilty be entered on the Court records.
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