Director of Public Prosecutions v KC

[2006] NSWDC 127

CITATION:	DPP v KC [2006] NSWDC 127
HEARING DATE(S):	13/11/06 14/11/06 15/11/06 16/11/06 17/11/06 20/11/06 21/11/06 23/11/06 4/12/06 5/12/06 6/12/06 11/12/06
JUDGMENT DATE:	13 December 2006
EX TEMPORE JUDGMENT DATE:	12/13/2006
JUDGMENT OF:	Taylor DCJ
DECISION:	The appeal is dismissed and the finding of guilt in respect of each Court Attendance Notice is confirmed.
LEGISLATION CITED:	s 52A, s 52A(1)(c), s 52A(3)(c) of the Crimes Act, s 18, s 18(1)(b) Div 4 of Pt 3 and s 33(1)(g) Children (Criminal Proceedings) Act 1987, s 11, s 18 s, 18(2), s 19, ss 12 and 15 of the Crimes (Local Courts Appeal and Review) Act 2001
CASES CITED:	R v Hain (1966) 85 WN (Pt1)(NSW) 7 Martin v Osborne (1936) 55CLR 369, Herron v AG (NSW) (1987) 49NSWLR 601. Gianoutsos v Glykis [2006] NSWCCA 137 at [24-31, 36].
PARTIES:	DPP KC
FILE NUMBER(S):	05/12/1976
COUNSEL:	Mr G Tabuteau CP Mr A Bellanto QC
SOLICITORS:	Ms S Fleming Mr P O'Grady

JUDGMENT

Introduction

1 Between 11.00 and 11.30pm on 29 June 2004 the appellant was driving a Peugeot 206 motor vehicle in Raglan Street, Mosman, when she crossed to the incorrect side of the road and lost control of the vehicle. After crossing the kerb and colliding with a number of objects the convertible vehicle, with its roof down, rolled over. The appellant was travelling with three passengers. One of them, J.G. was killed in the accident. J.M. suffered severe injuries, as did G.A.

2 The driver, K.C, was charged with a number of dangerous driving offences in contravention of s 52A of the Crimes Act. Proceedings against the appellant were instituted under the Children (Criminal Proceedings) Act 1987. The Children’s Court at Bidura, pursuant to s 18(1)(b) of the Act, dealt with the matters under Div 4 of Pt 3. The Court found the appellant guilty and proceeded to make penalty orders under s 33(1)(g). This is an appeal against findings of guilt made by the Children’s Magistrate.

3 The central factual issues in the case concerns the appellant’s manner of driving, in particular her speed as she crossed to the incorrect side of the road, and lost control of the vehicle, which ultimately came to rest some eighty metres away. There are no eyewitnesses to the accident who can assist in determining that speed. The survivors can give little useful evidence on that issue. The Crown case relies on circumstantial evidence to reconstruct events. It is that evidence and the availability or not of reasonable alternate hypotheses that are the controversy in the appeal.

The Alleged Offences

4 The alleged offences in respect of which the appellant appeals are the following:

5 Dangerous driving occasioning death, in respect of the death of J.G. (s 52A(1)(c) Crimes Act)

6 Dangerous driving occasioning grievous bodily harm, to J.M. (s 52A(3)(c) Crimes Act)

7 Dangerous driving occasioning grievous bodily harm, to A.G. (s 52A(3)(c) Crimes Act)

8 The alleged offences are recorded in the Court Attendance Notices as follows:

9 That K.C. on the twenty-ninth day of June 2004, at Mosman, in the State of New South Wales, did drive a vehicle to wit, a 2004 silver Peugeot convertible motor vehicle bearing NSW registered number AWS-75Q, when it was involved in an impact occasioning the death of J.G, and at the time of the impact the said K.C. was driving the vehicle in a manner dangerous to other persons.

10 That K.C. on the twenty-ninth day of June 2004, at Mosman, in the State of New South Wales, did drive a vehicle to wit, a 2004 silver Peugeot convertible motor vehicle bearing NSW registered number AQS-75Q, when it was involved in an impact occasioning grievous bodily harm to J.M., and at the time of the impact the said K.C. was driving the vehicle in a manner dangerous to other persons.

11 That K.C. on the twenty-ninth day of June 2004, at Mosman in the State of New South Wales, did drive a vehicle bearing NSW registered number AQS-75Q, when it was involved in an impact occasioning grievous bodily harm to G.A, and at the time of the impact the said K.C. was driving the vehicle in a manner dangerous to other persons.

12 The medical reports disclose that the rear offside passenger (J.G., age 18) died at the scene from the injuries she had sustained in the collision. The front passenger (J.M., age 17) suffered grievous bodily harm from injuries received in the collision, including a degloved right hand and multiple fractures entailing the left clavicle. The rear nearside passenger (A.G., age 17) suffered grievous bodily harm from injuries received in the collision, including a fractured skull, blood clot to the brain, and fractured left hand.

13 The appellant also received injuries in the collision, including a deep cut to the back of the head, injuries to the left arm and right heel, and loss of consciousness.

Onus and Standard of Proof

14 This is a criminal proceeding of a most serious nature. The burden of proof of guilt of the appellant is placed on the prosecution. That onus rests upon the prosecution in respect of every element of the charges. There is no onus of proof on the appellant at all. It is not for the appellant to prove her innocence but for the prosecution to prove her guilt and to prove it beyond reasonable doubt.

15 It is, and always has been, a critical part of our criminal justice system that those against whom charges are brought are presumed to be innocent, unless and until they are proved guilty by a prosecution beyond reasonable doubt.

16 In an appeal such as this there is only one ultimate issue. Has the prosecution proved the guilt of the appellant beyond reasonable doubt? If the is yes, the appropriate finding is guilty. If the answer is no, the finding must be not guilty.

Essential Ingredients and the Prosecution Case

17 In relation to the charge of driving in a manner dangerous occasioning death the prosecution must establish:

a. The appellant was the driver of the Peugeot vehicle, when

b. it was involved in an impact occasioning the death of another person, and

c. at the time of the impact the appellant was driving in a manner dangerous to other persons.

18 In relation to the charge of dangerous driving occasioning grievous bodily harm to J.M. the prosecution must establish:

a. The appellant was the driver of the Peugeot vehicle, when

b. it was involved in an impact occasioning the grievous bodily harm to another person, and

c. at the time of the impact the appellant was driving in a manner dangerous to other persons.

19 In relation to the charge of dangerous driving occasioning grievous bodily harm to A.G., the prosecution must establish:

a. The appellant was the driver of the Peugeot vehicle, when

b. it was involved in an impact occasioning the grievous bodily harm to another person, and

c. at the time of the impact the appellant was driving in a manner dangerous to other persons.

20 There is no issue that the appellant was driving the Peugeot when it was involved in an impact which occasioned the death of J.G. and grievous bodily harm to J.M. and A.G. I am satisfied that those elements of the charge are proved.

21 The three offences each allege, as an essential element, driving in a manner dangerous to another person.

22 The prosecution case is that at the time of the collision the appellant was driving the vehicle at a speed, which, in the particular circumstances surrounding the driving, was dangerous to the other persons in the vehicle.

23 The prosecution case is that the speed at which the car was being driven at the time of the collision was between 75 and 80 kilometres per hour on the one hand, and over 90 on the other. It is submitted that a finding of a speed of 75 to 80 kilometres per hour in the circumstances would be sufficient to establish the element of driving in a manner dangerous to another person.

The Test of Manner Dangerous

24 The principles in R v Hain (1966) 85 WN (Pt1)(NSW) 7 are applicable here, as appropriate and are modified to recognise that culpable driving is now a repealed offence.

a. The test to be applied in determining whether the management and control of the vehicle constituted driving in a manner which was dangerous to another person is an objective standard fixed in relation to other users of the highway whether the potentiality in fact of danger to another person is realised by the driver of the motor vehicle or not.

b. “Manner of driving” includes all matters connected with the management and control of the vehicle when it is being driven.

c. An act or omission done or omitted to be done with reference to the management or control of the vehicle which is merely casual or transitory may, in an appropriate case, constitute “manner of driving”.

d. Hence inattention on the part of the driver of a motor vehicle which leads to some act or omission on his/her part in the management or control of the vehicle is of itself no defence to the charge that the vehicle was being driven in a manner which was dangerous to the public.

e. The quality of being dangerous to the public does not depend upon death or grievous bodily harm being occasioned to some person, though such a result must be proved to have occurred during that driving to complete the offence under the relevant section.

f. The impact generally must occur whilst the vehicle is being driven in a manner which is dangerous to another person.

g. The quality of the driving may be reduced from the resultant facts proved in evidence.

The Circumstances Surrounding the Driving

25 The principal circumstances surrounding the driving at the time of the collision were:

(i) The applicable speed limit was 50 kilometres per hour.

(ii) The vehicle was full with four occupants.

(iii) The appellant had very limited driving experience.

(iv) It was at night.

(v) The road’s characteristics, which, significantly, included a curve and a divided roadway south of Musgrave Street.

26 Additional circumstances were:

(vi) At the time of the collision the appellant was required to meet a curfew deadline for one of the passengers in the vehicle, A.G. On that evidence the curfew time appears to have been 11.00pm. The collision appears to have occurred between 11.00 and 11.30pm. The appellant gave the time of the collision as 11.15pm, but was not quite sure. She said that it possible that at the time of the collision she was running late to meet the curfew deadline. Owen Eather said he saw a vehicle pass his front gate very close to 11.00pm, and “a very short while after” , heard the collision.

(vii) The appellant had been driving, intermittently, since 5.30pm.

(viii) The vehicle’s sound-system was turned up to an “extremely loud” level which may have constituted a potential distraction for the appellant. There was some controversy about this but there is no good reason not to accept the police evidence.

27 I am of the opinion that upon sufficient proof that the appellant was travelling at a speed of between 70 to 80 kilometres an hour or 75 to 80 kilometres an hour, as alleged by the prosecution in the circumstances of this case in Raglan Street, Mosman, constitutes driving in a manner dangerous.

Circumstantial Evidence

28 The prosecution case is a circumstantial one. The case has been conducted fully recognising this fact. I have borne in mind throughout the hearing and in determining this appeal the guidance of Justice Dixon in Martin v Osborne (1936) 55CLR 369, when his Honour said at 375:

29 “If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that according to the common course of human affairs, the degree of probability that the occurrence of facts proved would be accompanied by the occurrence of the facts to be proved is so high that the contrary cannot reasonably be supposed.”

30 I have stated the alternative hypothesis advanced by the appellant in this judgment under the heading Appellant’s Primary Contentions. The fact that the appellant has advanced such a hypothesis and called evidence to support it does not in any way alter the onus of proof. It remains for the prosecution to prove the essential ingredients of an alleged offence before a guilty finding can be made.

31 Discussion of the Evidence before the Original Local Court

32 The conviction appeal is brought as of right under s 11 of the Crimes (Local Courts Appeal and Review) Act 2001. Although the decision appealed from is a finding of guilt by a Children’s Magistrate the appeal is described as a conviction appeal, as the definition in s 3 of the Act states that conviction includes a reference to a finding of guilt on an appeal from the Children’s Court. The first proceedings were brought under the Children (Criminal Proceedings) Act, 2001.

33 Fresh evidence was permitted on appeal. By s 18 of the Crimes (Local Courts Appeal and Review) Act, appeals against conviction are by way of rehearing on the transcripts of evidence. Fresh evidence may only be given with the leave of the District Court, which must be satisfied that it is in the interests of justice that the fresh evidence be given; s 18(2).

34 “The interests of justice” are words of the widest possible reference and they enliven the discretionary judgment. Herron v AG (NSW) (1987) 49NSWLR 601. They include the following factors:

a. The interest in securing relevant testimony;

b. The interest in ensuring that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he/she has had a fair trial;

c. The public interest in the due administration of justice;

d. The interest in keeping the parties to the case they ran at first instance.

35 In this case the hearing before the magistrate was incomplete on a defended basis because the appellant pleaded guilty during the course of the hearing. In my view it was appropriate on the appeal to allow a significant amount of fresh evidence. Fresh evidence is defined as meaning evidence in addition to or in substitution for the evidence given in the proceedings from which the appeal proceedings have arisen.

36 Further, pursuant to s 19 of the Act there was a requirement that certain persons give evidence. That flowed from the decision permitting fresh evidence.

37 Leave to appeal to the District Court was granted under ss 12 and 15 of the Crimes (Local Courts Appeal and Review) Act. I heard the application for leave, which was allowed on its merits. It was not necessary to determine the appellant’s manner of driving to decide that application.

38 The appeal against conviction proceeded by way of rehearing, not a hearing de novo: s 18 of the Act; Gianoutsos v Glykis [2006] NSWCCA 137 at [24-31, 36]. Under s 18(1) the rehearing is on the basis of certified transcripts of evidence given in the original lower court proceedings, plus such fresh evidence in respect of which the District Court has granted leave under s 18(2).

39 Transcripts to which s 18(1) Crimes (Local Courts Appeal and Review) Act applies became part of Exhibit H in these proceedings. These comprise oral evidence and associated exhibits. The material covers issues that have become to some extent formal in the appeal.

40 J.M. and A.G. had no relevant recollection of the circumstances of the collision. Constables Phillips and Ferry were the first police at the scene. Constable Ferry recalled the car’s sound system playing “extremely loud”, and that she had climbed through the car and turned the music down, and seen three occupants still inside the vehicle. The officers described the state of the scene and the occupants of the vehicle. Constable Morris also attended the scene, and gave a general description of the scene, including the presence of skid marks leading to the crash site.

41 Senior Constable Wildbur, of the Metropolitan Crash Investigation Unit, became the police officer-in-charge. He attended the scene, and in evidence described the accident scene, the road conditions, and the vehicle’s damage, in considerable detail. He produced the crime scene photographs. He said he measured black tyre friction marks. He spoke to the appellant at Manly Police Station the following morning, during which the appellant declined to be interviewed. Sergeant Thomas also examined the scene, including the tyre marks. Constable Mills assisted in the preparation of a photogrammetry plan. Constable Boyd produced that photogrammetry plan. Senior Constable Cameron is an engineer who, in summary, found upon his examination no mechanical defect or component failure in the vehicle which may have contributed towards the collision.

42 Grant Lee Johnston gave evidence and Senior Constable Marc Holgate also gave evidence in relation to photographing the scene, and about various tyre marks, gouge marks and points of impact. Amongst the exhibits were Exhibit 1 (in the original local court, now part of Exhibit H), the transcript of a record of interview with J.M. In that interview J.M. gave details of the various driving trips made by the appellant during the course of the late afternoon and evening leading up to the collision, and said that A.G. had to meet curfew. Other exhibits are associated with the evidence of Senior Constable Wildbur, and Mr Johnston.

Expert Evidence

43 Mr Grant Johnston, a chartered professional engineer was called as an expert witness by the prosecution. He is a member of the Institution of Engineers (Aust) and a Fellow of the Australian Institute of Traffic Planning Management. He holds a Bachelor’s degree in Civil Engineering, majoring in Transport Engineering and Engineering Construction. He was awarded a University prize as Dux of the final year Transport major. He also holds a post-graduate masters degree in Traffic and Pavements Engineering from the University of New South Wales. His thesis was an Analysis of Crashes Occurring on the Pacific Highway Between 1985 and 1991. He has presented papers at numerous national and international conferences. He has a very impressive work history as a crash investigator. For example whilst with Jamieson Foley and Associates he was involved in around one thousand individual crash investigations. Mr Johnston is a highly qualified and experienced expert in investigation of accident reconstruction. He gave very impressive evidence on the appeal.

44 The appellant called Mr Mark Sculthorpe as an expert witness. He is a former member of the New South Wales Police Force, who has had considerable training and experience in the investigation and assessment of traffic accidents. He carries on the business of motor vehicle accident investigation, accident reconstruction and motor vehicle collision analysis.

45 An expert witness is a person who has specialised knowledge based on their training, study or experience. Expert evidence may be based on facts, which the expert has been told, or on assumptions, which the expert has been asked to make. A tribunal of fact therefore considers and analyses the evidence to determine the extent to which the opinions expressed depend upon those facts and assumptions as being correct. Opinions expressed by an expert called on behalf of the prosecution which are based on material facts or assumptions which have not been proved do not advance the prosecution case and can be given no weight except to the extent they assist the appellant.

46 Mr Johnston’s professional tertiary education and experience made him a very impressive witness when applying his mind to the complexities of the methodology and calculations involved in the reconstruction of the accident. The initial investigation identifying physical marks on the roadway was not all that it could have been. Both experts faced this difficulty. They were both able to work with what was available.

47 In the present case there is a conflict between the expert evidence of Mr Johnston and Mr Sculthorpe. The evidence of each goes to the issue of the appellant’s manner of driving. It is not a case of choosing between their evidence. If there is a reasonable possibility that the evidence of Mr Sculthorpe favouring the appellant, when taken in conjunction with all the other evidence, may be correct, the Court should proceed on that basis.

48 In other words, in determining whether the prosecution has proved its case beyond reasonable doubt, the Court is required to take into consideration the reasonable possibility that the evidence of Mr Sculthorpe, when taken in conjunction with all the other evidence, may be correct.

49 Mr Sculthorpe relied on a number of assumptions, which I will identify and discuss in these reasons.

50 In my view the qualifications, tertiary education, and experience of Mr Johnston, in this particular case, are such that his evidence is to be preferred, where there is conflict, to that of Mr Sculthorpe. This is particularly so with respect to the determination of the initial speed of the vehicle and whether or not it accelerated during the yaw. Further, Mr Sculthorpe makes assumptions that are not made out and the tenor of his reports and evidence was more argumentative than Mr Johnston. His observations as to what a driver might or might not do are well informed from his experience, but not matters exclusively within the compass of an expert witness.

51 Mr Johnston was criticised because he had reservations about the methodology of Frycke; what he described as “untidy mathematics”. Some time has passed since Frycke’s studies and I accept that Mr Johnston’s expertise is such that he was competent to make constructive observations concerning Frycke’s work. Mr Sculthorpe’s training and experience enable him to implement reconstruction principles such as those identified by Frycke. Mr Johnston’s education and experience enable him to go further. He was able, in a credible way, to articulate the underpinning concepts. What might be expected from his education and experience was demonstrated in the witness box. He was a very good witness.

52 In my view the damage occasioned to the Electronic Control Units (ECUs) makes it difficult to reach reliable conclusions concerning this evidence. Whilst information from ECUs can assist in providing vital information concerning the vehicle’s performance, they are not a black box in the sense that is used for example in the aircraft industry. The ECUs are certainly not crash proof. I have given careful consideration to the evidence of Mr Wyatt, a very well qualified engineer and Mr Allan who is very experienced. In relation to the particular point of difference between them concerning damage to the ECUs, I accept the logic of Mr Allan’s opinion that, even with the extremely short time sequence, the first ECU reading is most likely to give a true indication. This evidence is one of the pieces of evidence that forms a part of the mass of evidence tending to show that the appellant was driving at an excessive speed. It would not on its own prove beyond reasonable doubt excessive speed. I will discuss this evidence further in these reasons.

53 The methodology and calculations of Mr Johnston are accepted by the Court as consistently conservative and prudent, bearing in mind the criminal standard of proof. Mr Johnston referred a number of times in evidence to this approach by him.

The Vehicle’s Speed

54 The evidence of speed is in four categories of evidence.

(1) Accident reconstruction evidence. This evidence comes from Grant Johnston. The effect of Mr Johnston’s evidence is that, applying principles of accident reconstruction, it can be concluded that the vehicle was most likely travelling at a speed of at least 75 to 80 kilometres per hour at the commencement of the yaw prior to impact, and could have been as high as the low nineties. Mark Sculthorpe, on behalf of the appellant, also gave evidence in this category, disputing aspects of Mr Johnston’s evidence.

(2)The ECU evidence. Evidence relating to the car’s ECUs, or computers, was given Nicholas Allan. The effect of Mr Allan’s evidence was that it can be calculated that at the time of the vehicle’s first impact in the course of the collision it was travelling at a speed of 99 kilometres per hour. Mr Wyatt, on behalf of the appellant, also gave evidence in the category, disputing this aspect of Mr Allan’s evidence.

(3)The physical evidence. This is constituted by Exhibit C, which is a set of photographs numbers 1 to 88 from the crash scene, plus six large black and white photos taken at the scene that night, which are part of Exhibit H. The depictions in the photographs of the vehicle’s damage are consistent with the vehicle having travelled at a speed substantially in excess of 50 kilometres per hour at the time of the impact.

(4)The Highway Patrol evidence. This comes from Constables Leischke and Ferguson. The appellant also gave some evidence about that incident. The appellant said she could not recall having made any observations of her speedometer during the Curl Curl to Newport journey. It is submitted that the evidence from Constables Leischke and Ferguson is to the effect that, very shortly beforehand, and in circumstances very similar to those of the collision, the appellant’s state of mind or intention as driver of the vehicle was to drive the vehicle in apparent disregard or ignorance of the applicable speed limit, and is therefore evidence of her intention and state of mind as driver at the time that she drove the vehicle in Raglan Street prior to the collision. Whilst I accept that evidence as being admissible in the context of this case, I do not accept the prosecution submission as highly as it is put. I have given this evidence little weight. I will refer to this again in these reasons.

55 I will now turn to each of these four categories of evidence regarding speed.

Accident Reconstruction Evidence

56 There are two aspects to the accident reconstruction evidence. First, the critical speed analysis, which gives a calculated speed of the vehicle at the point of the first part of the yaw marks left by the vehicle prior to the first impact. Second, notwithstanding which precise calculated speed figures might be correct, whether there is a basis for finding that the vehicle at the time of the yaw had been accelerating from a lower speed because of an unexpected northbound vehicle in or from lower Raglan Street in such circumstances as to put in doubt that there otherwise should be a finding of driving in a manner dangerous to another person.

Critical Speed Analysis

57 It is not in dispute that the critical speed being referred to is the speed in the relevant part of the yaw marks, referred to as the initial speed, as measured over the first fifteen metres. This allows a calculation of the speed of a vehicle in the initial part of a yaw.

58 In his first report, Mr Johnston assumed a conservative curve radius figure of 61.5 metres; and a friction value of .73 to .78, to conclude (taking in account a positive gradient of three per cent) with a speed of 75 to 80 kilometres per hour. He said he had calculated the conservative figures the other way, and had obtained a figure in the low nineties. He said that the smaller (or more conservative) the assumed radius, the smaller the resulting calculated speed figure. The scale plan of Mr George, produced through Mr Sculthorpe after Mr Johnston had first given evidence, Exhibit 6, put the radius at 70.54 metres, which would yield higher speed figures than 75 to 80 kilometres per hour.

59 Mr Sculthorpe in his updated second report, and often revising calculations in his first report, used a radius of 70.5 metres, and a friction value (drag factor) of .59. The friction value of .59 was obtained by Mr Sculthorpe as a result of tests conducted while the Court hearing was in progress. Mr Sculthorpe in effect agreed that the lower the friction value, the lower the calculated critical speed result. Mr Johnstone’s third report expresses the opinion that Mr Sculthorpe’s figure of .59 incorrectly interprets or applies the results in Mr Sculthorpe’s tests four and five in Exhibit 7, for reasons set out at pages 5 and 6 of Exhibit J, and that the correct interpretation of the relevant parts of the test graphs in Mr Sculthorpe’s last report in fact yields a friction value of 0.8.

60 Mr Sculthorpe gave evidence in cross-examination about the correct interpretation of the test results. He agreed that the maximum deceleration in those graphs averaged at 0.8, or perhaps a little bit less. Mr Sculthorpe said that it was these lower part of those graphs which reflected the vehicle’s maximum deceleration and its drag potential for the purposes of a friction test. Mr Sculthorpe gave evidence that if the friction value of 0.8 was used in his own calculations, the critical speed figure became 84.7 kilometres per hour. I accept the evidence of Mr Johnston on this point. The figure of 84.7 kilometres per hour shows that Mr Johnston’s figure of 75 to 80 kilometres per hour was conservative.

61 Mr Johnston, in his first report and in evidence, expressed the opinion that at speeds of 75 to 80 kilometres per hour or more in the curve, a vehicle would be unlikely to remain on its correct side of the road, and would be likely to drift into the incorrect side of the road.

62 In this case I have been very much assisted by counsel during the course of the hearing. They have acted in a way sensitive to the tragic circumstances in this case viewed from any perspective and have exercised a deal of common sense in the appropriate way the appeal should proceed. Much of the factual material that I am now dealing with is from the prosecutor’s very helpful submissions. It is appropriate to use them in this way as they were the basis of the address by the Senior Counsel for the appellant. The appellant’s legal team compiled a very helpful and extensive review of the evidence in the case, such that I have been greatly assisted by both the counsel and their solicitors.

63 I turn now to the increasing radius and acceleration.

Increasing Radius and Acceleration

64 The opinion of Mr Sculthorpe is that the radius of the yaw curve increased in its second half, and that, if so, it should be concluded that the car was therefore increasing in speed, and that therefore it was accelerating. This is a critical issue in the appeal. He agreed, however, that the curve radius of a yaw can increase simply as a vehicle’s side-slip angle increases and the vehicle progressively loses grip in the yaw, as was happening here. When Mr George was asked if an increase in radius was consistent with a vehicle accelerating through a yaw, he said it may be, that is, it did not necessarily follow that if there was an increase in the radius then the vehicle must have been accelerating. Mr Johnstone said that even under acceleration in a yaw, a vehicle usually will still lose speed. This is critical evidence from Mr Johnston, which I accept.

65 Mr Sculthorpe, in cross-examination, agreed that on the figure for the maximum acceleration value (of 0.16G), and using Mr Sculthorpe’s own friction value of 0.6, it was unlikely that the vehicle in the yaw could be gaining speed, and that higher friction values of 0.7, and 0.8 (as suggested by Mr Johnston on the basis of tests 4 and 5 in Mr Sculthorpe’s last report, Exhibit 7) would make this even more unlikely, because the forces of retardation clearly were greater than the maximum forces available under maximum acceleration.

66 The scale plan (Exhibit 6) shows only one radius, 70.54 metres. Using the same plan in electronic form obtained from Mr George, Mr Johnston calculated the radius for the remainder of the yaw, and obtained an almost identical figure. Mr Sculthorpe said Mr Johnston’s method in obtaining this figure was appropriate, as did Mr George, who agreed that the measurement by Mr Johnston was accurate. However Mr George on using different jig positions on the curve obtained different readings, both for the first and second parts. In the first part of the yaw, Mr George obtained readings of 77 and 74 metres, and for the latter portion, 80.6 metres. Mr George said this just meant an increase in the radius of the arc of the vehicle. Mr Johnston agreed with the readings of Mr George based on those particular grid positions used by Mr George. Mr George pointed to the vulnerability of readings to the positioning of the grids and the accuracy of the placement of the original marks. Mr George said very slight variations in the placement of the marks will account for the discrepancy and variation in the readings of the radius for the latter half of the yaw.

67 I agree with the prosecution contention that evidence that the radius of the yaw was increasing is unpersuasive. In any event the evidence that the vehicle could have been increasing in speed in the yaw, having regard in particular to Mr Sculthorpe’s evidence, is non-existent. I do not think it is reasonably open on the evidence I accept that the appellant’s vehicle was accelerating during the yaw.

Factual Assumptions in Mr Sculthorpe’s Conclusions and Opinions

68 The factual assumptions set out by the Crown Prosecutor in his submissions fairly and accurately reflect the evidence and argument in the case. The factual assumptions are necessary for the conclusions and opinions in Mr Sculthorpe’s evidence to be materially relevant. In my opinion those factual assumptions are not supported by the evidence.

(1) The assumption that there was a vehicle travelling northbound in lower Raglan Street at the relevant time . This assumption relies on Mr Eather. In fact, Mr Ether’s evidence is completely silent on where the vehicle which he had observed outside his gate had come from. He could not see, and did not know, where it had come from.

(2) The assumption that a vehicle travelling northbound in lower Raglan Street at the relevant time had emerged into the undivided section without slowing and stopping for the possibility of a southbound vehicle or a northbound vehicle. It is inherent in the assumption of a northbound vehicle in lower Raglan Street that it must have driven in this way - otherwise the likelihood is that it would have seen the appellant’s vehicle beforehand, and stopped and waited. That likelihood is plainly evidenced in the two run-through DVDs (Exhibit 8), in which a vehicle in lower Raglan Street at, variously, 58, 40 and 20 metres from the apex of the curve, is very clearly visible from the furthermost distance to the oncoming vehicle in Mr Sculthorpe’s reconstruction. Mr Sculthorpe specifically agreed in evidence that this was the case, and that this was so even though the lower Raglan Street vehicle positioned by Mr Sculthorpe had only its parking lights on (that is, its headlights off), and that there was a vehicle parked outside Mr Eather’s house - whereas according to Mr Eather there had been, at the time of the collision, no vehicle parked outside his house. This assumption is unsupported by the evidence, and is against the probabilities.

(3) The assumption that a vehicle travelling northbound in lower Raglan Street at the relevant time and emerging into the undivided section, had continued on the wrong side of the undivided section of Raglan Street for some distance. It is an inherent and necessary assumption that the northbound vehicle in lower Raglan Street was driven for some further distance in this way, keeping to its right, for the appellant to have reacted by swerving to her right, as is assumed by Mr Sculthorpe. Yet it is unlikely that a vehicle as a described in the first part of Mr Eather’s evidence would have chosen, once past the Keep Left sign, to continue on the wrong side of Raglan Street. The scale plan Exhibit 6 illustrates the distance between the point where Mr Eather said vehicles from lower Raglan Street stop before crossing over to the correct northbound side, and the point outside his gate where he had observed a vehicle. There is a considerable distance between these two points. Looked at another way, that distance makes it unlikely that the vehicle Mr Eather saw was a vehicle which had come up in the way Mr Eather described in the first part of his evidence. What Mr Eather saw is, in fact, more consistent with a northbound car on upper Raglan Street moving to its right to avoid an oncoming vehicle travelling at speed on the wrong side of Raglan Street through the curve - which is, in the event, the way the appellant is alleged to have driving at the time.

(4) The assumption that the appellant had been travelling on the correct side going through the curve in Raglan Street . There is, in fact, no factual evidence to support this assumption, as Mr Sculthorpe’s reports concedes, and as he agreed in evidence.

(5) The assumption that the appellant reacted to the presence of an oncoming vehicle on the wrong side of Raglan Street by swerving to her right, rather than by keeping to her left and pulling up. This assumption to some extent depends on the correctness of the first four assumptions. A driver, faced with an oncoming vehicle on the incorrect side, is more likely to react by pulling up to the left, than by swerving to the right.

(6) The assumption that the appellant when reacting to the presence of an oncoming vehicle on the wrong side of Raglan Street confused the brake pedal and the accelerator pedal and accelerated in error. There is, in fact, no factual evidence to support the assumption that the appellant accelerated at that point, in error or otherwise, as Mr Sculthorpe’s reports concede, and as he agreed in evidence. The assumption is alternatively put that the appellant when reacting to the presence of an oncoming vehicle on the wrong side of Raglan Street had the presence of mind to intentionally accelerate as an evading manoeuvre. The assumption in this form emerged during Mr Sculthorpe’s oral evidence. Again, there is no factual evidence to support the assumption in this form, as Mr Sculthorpe agreed in evidence. The assumption in this form tends to suggest that the appellant was already travelling at some speed; it is a manoeuvre suggestive of a driver with considerably more experience than the appellant.

(7) The assumption that the appellant, having reacted to the presence of an oncoming vehicle on the wrong side of Raglan Street by pressing the accelerator pedal, pressed the accelerator to its maximum and continued to do so until impact. This assumption is necessary to support Mr Sculthorpe’s calculations involving the possible acceleration rate, of 0.16G, for the entire distance, leaving aside reaction time, so as to suggest, working backwards, a lower initial speed at the curve than the Critical Speed Analysis speed at entry to the yaw. Again, there is no factual evidence to support this assumption. If the accelerator was accidentally fully pressed to the floor, it is likely that the appellant would have realised her error, and hear the engine’s high revs per minute, and immediately lifted her foot off the accelerator. Alternatively if the appellant had had the presence of mind to intentionally press the accelerator as an evading manoeuvre and it is very likely that she would have had the same presence of mind once the other car had passed to immediately release the accelerator pedal and brake to a stop.

69 The factual assumptions necessary for the conclusions and opinions in Mr Sculthorpe’s evidence are not in my view supported by evidence.

ECU Evidence

70 Both Mr Wyatt and Mr Allan were expert witnesses doing their best to assist the Court. They were impartial. Mr Wyatt’s education and experience tend towards the theoretical aspects of the ECU systems. His knowledge and experience also involves being able to design such systems. He had no experience in the analysis of data downloads from crashed vehicles and no experience with the Peugeot vehicles’ ECUs. While I accept him as a very well qualified witness, Mr Wyatt’s relevant knowledge is more generalised and of less assistance than Mr Allan’s in the circumstances of this case. Mr Allan has conducted some thirty to forty downloads of vehicle ECU systems in crash situations. This experience was of particular importance in this appeal because of his extensive knowledge of the causes and effects of damage to the ECUs in accidents. As stated earlier, the ECU system does not have a dedicated crash data recovery or event data recovery function as Mr Allan agreed. The damage to the vehicle and ECUs was extensive. He accepted that the EC units were damaged in sequence. There seems good reason on his evidence to accept that there would be anomalous readings as damage to the units and its systems occurred progressively through the collision. Mr Wyatt’s evidence to the effect that the gearbox output speed reading was likely to have been caused by some noise introduced through a part of some circuit of the vehicle was, he agreed, a theory.

71 The gearbox output speed reading of 3168 revs per minute (and the resulting calculated speed of 99 kilometres per hour) is likely at the point of first impact during the course of the collision. That would be consistent with the appellant accelerating down upper Raglan Street with the vehicle swerving out of control. Mr Allan was of the opinion that such a reading was very reliable. The weight of this evidence is affected the fact that the ECUs are not designed as dedicated crash data systems and the extensive damage to the vehicle and its systems in the collision. The plans again disclose the appellant travelled a considerable distance down Raglan Street before crossing the kerb and considerable distance thereafter to the point where the vehicle came to rest.

72 This is the evidence that indicates that the appellant was travelling a speed in excess of 80 kilometres an hour. I am not satisfied, and having given careful consideration to the appellant’s submissions, that that fact is proved beyond reasonable doubt. The evidence, however, has utility as a circumstance in the overall circumstances for consideration. I have been satisfied that it is more likely than not at material times the vehicle’s speed was in excess of 80 kilometres an hour from this evidence. The utility of this evidence is in the area of being consistent with other evidence.

Physical Evidence

73 The depictions in the photographs of the vehicle’s damage, particularly photographs 39 to 43, together with the position of the yaw marks relative to the vehicle in its final resting position, as depicted in the six large black and white photos taken that night (part of Exhibit H), show damage consistent with the vehicle having travelled at a speed substantially in excess of 50 kilometres an hour. The distance between the point at which the appellant’s vehicle crossed to the incorrect side of the road and the point at which it came to rest is uncontroversially depicted in the plans in evidence and the damage to the structures and the vehicle, are all consistent with the vehicle travelling well in excess of the speed limit. As there was no evidence of speed of any on-coming vehicle, reasonable avoidance action is difficult to assess. However, the DVD images of what was described as a run-through of the progress of the vehicle down Raglan Street appeared, contrary to the appellant’s submission, to provide a reasonable opportunity to stop when travelling at the speed limit.

Highway Patrol Evidence

74 This evidence derives its force from the similarity of the circumstances with those of the collision, bearing in mind the proximity in time with the collision of less than two hours; the full complement of passengers; a social outing; and driving at night. The appellant’s speed at Dee Why was such that it was sufficiently high to attract the attention of police who, at the time, were not particularly concentrating their attention on the opposite roadway where the appellant’s vehicle was being driven at the time.

75 The apparent speed of the appellant’s vehicle at the time, together with the appellant’s responses and lack of responses to the two constables who spoke to her about the speed at which she was driving, and about the potential risks to herself and her passengers associated with excessive speed, are evidence of, and indicative of, a disregard or ignorance of the applicable speed limit at the time of the collision, and the associated risks to herself and her passengers. It must borne in mind that on 29 June 2004 the appellant was a very inexperienced driver.

76 It is fanciful to suggest that the police officers were mistaken about a routine observation in open conditions. They responded immediately because of their concern for the safety of the occupants of the vehicle and were able to do a U-turn and travel a distance of some 1.4 kilometres to pull the appellant’s vehicle over. I fully accept that the appellant and Ms MacPherson have been seriously affected by the circumstances of the collision. However, I have no doubt that the appellant was speeding such that the police officers felt it was necessary to take the steps they did. I do not accept the appellant’s submission that her answers to police demonstrate that she had not been speeding.

77 This evidence plays a very small part in the determination of this appeal. It is necessary and relevant because of other evidence about the appellant’s manner of driving on the evening of the accident given by other persons. It completes a picture. The evidence perhaps should be seen as pointing to a lack of insight in the appellant as to the speed she was travelling in the course of her driving on that evening.

Owen Eather’s Evidence

78 The observation made by Mr Eather was no more than a glimpse. However, it needs to be considered in the context of contributing to the reasonable alternative hypothesis advanced by the defendant. This is not an identification case and for the purposes of the determination of this appeal, I accept Mr Eather’s observation. I do not see it as necessary to resolve some issues concerning aspects of his evidence.

79 A critical foundational assumed fact in the analysis and conclusions of Mr Sculthorpe - that a northbound car did come up lower Raglan Street at the relevant time - seems to have depended on evidence of Mr Eather, about seeing part of a car passing on the incorrect side of the road at a point outside his front gate. I agree with the prosecutor that Mr Eather’s evidence of what he saw not only does not support this assumed fact, but would be more consistent with a northbound car on upper Raglan Street moving to its right to avoid an oncoming vehicle, travelling at speed on the wrong side of Raglan Street through the curve.

80 Mr Eather’s gave evidence that he had noticed northbound cars in Raglan Street come up in the lower, that is, incorrect side, of the divided section. He described in quite precise terms how these cars did so. In particular, and importantly, he said that those cars would come up fairly carefully and then stop, to check that the traffic in either direction was clear, and then they came and stopped at the point where the Keep Left sign was positioned at the start of the fence along the divided section, at which point they would cross over to the correct side, that is, the left side. He identified that point in Exhibit 6, that is, Mr George’s scale plan.

81 He said that he had noticed these vehicles when he was on the nature strip outside his front wall, or driving down Raglan Street. The effect of his evidence was that he would not be able to notice such vehicles from inside his front wall.

82 The second part of Mr Eather’s evidence concerned hearing the sounds of two car engines; and of seeing the rear portion of a car passing his house in a northerly direction on his (that is, the incorrect) side of the middle lines. He said he could not see where this particular car had come from. A very short while after, he heard a metallic thump.

83 I agree with the prosecutor that if a car was on the incorrect side of Raglan Street at a point outside Mr Eather’s house, then that is inconsistent with that car having come from lower Raglan Street in the way Mr Eather described in the first part of his evidence. I have given careful consideration to the plans and other evidence. It seems to me there is no reasonable basis for finding affirmatively that the vehicle described by Mr Eather in the second part of his evidence was a vehicle which had come from lower Raglan Street in the way Mr Eather described in the first part of his evidence or that it was a vehicle that played any part in the circumstances of this collision. The scale plan Exhibit 6 shows the considerable distance between the two points described in the first part and the second part of Mr Eather’s evidence. The presence of the other vehicle was a very live issue during the course of the hearing. I appreciate the appellant’s submission that such a vehicle being on the incorrect side of the road might wish to conceal this fact to anyone else and therefore proceed up Raglan Street. I have considered the views of the experts. Importantly in my view, once the appellant travelled to the incorrect side of the road, any danger from a vehicle travelling on the incorrect side of the road, had passed. Well past the crossing to the incorrect side of the road, the appellant began her first swerve to the right. It is not credible, as Mr Sculthorpe hypothesises, that at the commencement of this process the appellant was travelling less than 50 kilometres an hour. I have concluded that the appellant’s vehicle travelled to the incorrect side of the road because the driver was travelling at an excessive speed.

84 It seems to me in the physical circumstances that the likelihood is that any vehicle was (rather than the perhaps very occasional vehicle referred to by Mr Eather) a northbound vehicle having come from upper Raglan Street on the correct side of the road and, on seeing a southbound vehicle pass through the curve drifting at a speed onto the wrong side of the road, moving to the right so as to avoid the southbound vehicle and thereby pass Mr Eather’s house on the incorrect side of the road.

Appellant’s Evidence

85 The appellant gave evidence that all she could recall in relation to the circumstances of the collision that she “couldn’t fit down (the left hand side) for some strange reason”. She agreed however, that she had no idea why she could not fit down the side of the road. She said she did not suggest that she saw a car coming up the wrong side of the road. She said she did know the speed she was doing at the corner. She also said she could not remember anything at all of what driving, if any, or anyone else, that she had done prior to 5.30pm that day.

86 The appellant is a person of good character. The evidence demonstrates that she has no prior findings of guilty. She is otherwise a person of good character. In criminal proceedings that fact that the appellant is a person of good character entitles the Court to take the good character of the appellant into account on the question of her guilt. And I do so. The appellant has given evidence on the appeal. The fact that she is a person of good character supports her credibility.

87 As I have noted earlier the medical evidence supports the appellant having a limited recollection of events. I do not think her evidence adds any value to the assumption made by Mr Sculthorpe concerning an unexpected vehicle coming up lower Raglan Street in the wrong direction. The appellant’s evidence is consistent with an image she may have retained of limited room to manoeuvre as she lost control of her vehicle as it drifted onto the incorrect side, that is, into upper, rather than lower, Raglan Street, because of the excessive speed.

88 As I have already pointed out, the Crown bears the onus of proving the charges beyond reasonable doubt. The accused bears no onus. The accused is presumed to be innocent. By the appellant giving evidence this does not change the onus of proof.

Right to Silence

89 The accused declined to answer questions put to her by a police officer at the time she was spoken to at a police station. All people in this country have a right, except under certain circumstances not applicable in this case, to refuse to answer questions put to them by police officers. That is the substance and meaning of cautions that are administered by police officers. If any inference adverse to the accused could be drawn from her exercising that right then that right itself would very soon cease to exist. No inference adverse to the appellant can be drawn from the fact that she took note of the advice that she was given and chose to remain silent.

Appellant’s Primary Contentions

90 The appellant submits that there is no direct evidence of excessive speed at the left corner or inattention. It certainly is the case this is a circumstantial evidence case and, as the appellant’s counsel submitted, there is a process engaged in by the experts of working back from the physical evidence to reach conclusions about the speed of the vehicle at the left hand corner.

91 So far as the inattention is concerned, the question of inattention has only arisen in relation to the loud music that was on in the car. I agree with Senior Counsel for the appellant that inattention plays a very small part in this case.

92 The appellant advances the following as a reasonable alternative hypothesis. Again I have taken this from the appellant’s submission as it seems the fairest way to represent the submission.

93 The appellant’s driving was a direct response to an unidentified oncoming motor vehicle on its incorrect side of Raglan Street, which created an unforseen hazard which had to be avoided to avoid a head on collision.

94 The appellant had inadequate road distance to simply brake. A right turn manoeuvre was required, acceleration was necessary. This manoeuvre induced the Peugeot to head in the direction of the western kerb which required a correcting left hand manoeuvre which brought the vehicle into a collision course with the railing. To correct this, the right hand turn was necessary which brought about the yaw marks.

95 It was on this basis that the appellant submitted that a reasonable doubt should be found and the appeal should be upheld.

Findings

96 The accident occurred on Raglan Street, Mosman between 11.00 and 11.30pm on 29 June 2004. The incident involved a Peugeot sedan being driven by K.C. travelling onto the incorrect carriageway of Raglan Street near the separation of the upper and lower carriageway, a short distance to the south of Musgrave Street. The lower carriageway is designed to carry south bound traffic, whilst the upper carriageway is designed to carry north bound vehicles. K.C, at the time of the incident, was travelling south but entered the north bound carriageway. There were three other young females in the vehicle at the time of the incident.

97 Approximately twenty five metres south from the commencement of upper Raglan Street and on the incorrect carriageway, the vehicle swerved suddenly to its right leaving visible yaw marks on the road pavement from its two right side tyres. The vehicle began to rotate in a clockwise direction during the yawing motion.

98 The vehicle then mounted the western kerb of Raglan Street where it impacted in a glancing fashion with a roadside tree, impacted heavily with a telephone utility pole, then travelled into a heavy impact with a block fence surrounding a stairway to an apartment complex.

99 During impact with the fence the vehicle commenced to roll about its longitudinal axis onto its roof. The vehicle continued to rotate after impact with the fence and bounced away from the fence back into the western gutter of Raglan Street, coming to rest in an inverted position with the vehicle facing north, that is the opposite direction from which it approached.

100 As a result of the impact the death of J.G. was occasioned and J.M. and A.G. suffered grievous bodily harm. As noted earlier the vehicle, after crossing to the incorrect side of the road, travelled some eighty metres before coming to rest in upper Raglan Street.

Conclusions

101 I am satisfied the prosecution has proved the following matters beyond reasonable doubt:

(i)The appellant was driving her vehicle immediately before and at the time of the collision in Raglan Street on the incorrect side of the road at a speed not less than 70 to 80 kilometres per hour, and most probably between 75 to 80 kilometres per hour. It is possible she was travelling faster.

(ii)Driving the vehicle at such a speed in the circumstances surrounding the driving was dangerous to the three other persons in the appellant’s vehicle and constituted driving in a manner dangerous to another person in respect of each of the appellant’s three passengers.

(iii)As a result of the impact, the death of J.G. was occasioned, and J.M. and A.G. suffered grievous bodily harm.

102 In respect of each of the three appeals against conviction, I determine that each appeal should be dismissed under s20(1)(b) of the Crimes (Local Courts) Appeal and Review Act 2001.

103 I make the following order. The appeal is dismissed and the finding of guilt in respect of each Court Attendance Notice is confirmed.

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