Gordon v The State of Western Australia
[2012] WASCA 4
•10 JANUARY 2012
GORDON -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 4
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 4 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:21/2011 | 1 SEPTEMBER 2011 | |
| Coram: | PULLIN JA BUSS JA HALL J | 10/01/12 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | KYLE GERARD FRANCIS GORDON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Dangerous driving occasioning death Whether prosecution's failure to disclose a material piece of evidence amounted to a miscarriage of justice Whether trial judge made a proper finding in regard to a key factor in the prosecution's circumstantial case- Turns on own facts |
Legislation: | Road Traffic Act 1974 (WA), s 59(1) |
Case References: | de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 R v Hawes (1994) 35 NSWLR 294 R v Orton [1922] VLR 469 Rinaldi v The State of Western Australia [2007] WASCA 53 The Queen's Case (1820) 129 ER 976 The State of Western Australia v Gordon [2010] WADC 184 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GORDON -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 4 CORAM : PULLIN JA
- BUSS JA
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
Citation : THE STATE OF WESTERN AUSTRALIA -v- GORDON [2010] WADC 184
File No : IND 704 of 2010
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Catchwords:
Criminal law - Appeal against conviction - Dangerous driving occasioning death - Whether prosecution's failure to disclose a material piece of evidence amounted to a miscarriage of justice - Whether trial judge made a proper finding in regard to a key factor in the prosecution's circumstantial case- Turns on own facts
Legislation:
Road Traffic Act 1974 (WA), s 59(1)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr D Dempster
Solicitors:
Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
R v Hawes (1994) 35 NSWLR 294
R v Orton [1922] VLR 469
Rinaldi v The State of Western Australia [2007] WASCA 53
The Queen's Case (1820) 129 ER 976
The State of Western Australia v Gordon [2010] WADC 184
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
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1 PULLIN JA: I agree with Hall J.
2 BUSS JA: I agree with Hall J, generally for the reasons he gives, that the appeal should be dismissed.
3 HALL J: The appellant was convicted of dangerous driving occasioning death contrary to s 59(1) of the Road Traffic Act 1974 (WA) following a trial in the District Court before Stevenson DCJ sitting as a judge alone: The State of Western Australia v Gordon [2010] WADC 184.
4 The prosecution case was that the appellant had been driving his motor vehicle along a road in Munster when he drove off the road and struck and killed a 12-year-old girl who was walking home from school. It was alleged that he left the scene without stopping. The principal issues at the trial were whether the accident had occurred as alleged and whether the appellant could be identified as the driver of the car that had killed the girl.
5 There are three grounds of appeal. The first ground raises the issue of whether the prosecution's failure to disclose a material piece of evidence amounted to a miscarriage of justice. The evidence in question is a plan of the scene of the accident drawn by a police officer who attended at the scene shortly after the accident occurred. The appellant contends that this plan was inconsistent with prosecution evidence regarding tyre tracks in the vicinity of the girl's body. It is contended that the failure of the prosecution to disclose the plan resulted in a miscarriage of justice. The other two grounds raise the issue of whether the trial judge either made, or properly made, a finding that the appellant's vehicle travelled along that part of the road where the girl was fatally injured at the relevant time.
Prosecution case
6 On 20 March 2006 the deceased, a 12-year-old school girl, was dropped off by a bus driver some distance from her home in Holmes Road, Munster. At approximately 3.30 pm she began walking with her backpack along the northern verge of Holmes Road. She was wearing a school uniform at the time. A number of drivers travelling along the road observed the deceased as she walked eastwards along Holmes Road.
7 At about 3.45 pm the deceased was struck by a car travelling along Holmes Road. Whilst there were no eyewitnesses to the accident the prosecution relied on circumstantial evidence to prove that the vehicle that
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- struck the deceased had come up behind her, left the road and hit her whilst she was on the verge. The prosecution alleged that the appellant was the driver of the vehicle and that he had been observed engaging in what was described as 'hoon behaviour' on the freeway shortly before the incident. It was not suggested that this was the deliberate running down of a child, rather that the appellant had mistaken the deceased for an inanimate object when she had taken her backpack off and was crouched on the verge. However, it was submitted that a prudent driver would have realised that the object was a person and would not have driven off the road in the manner described.
8 Shortly after being struck, the deceased was found by a driver travelling in the opposite direction. Her backpack and shoes were a short distance away. It was obvious that she was very seriously injured and an ambulance was called. She received medical attention but efforts to resuscitate her failed and she died shortly after. The injuries sustained by the deceased were principally to her back and left side. The injuries indicated that the deceased had been impacted with great force and band-like markings on her back were consistent with contact with a bullbar frame.
9 It was not in issue that on the day in question the appellant had been driving his red Toyota Hilux in the general area. The vehicle was fitted with a bullbar. Shortly before the incident two witnesses had observed a vehicle of this description travelling at speed south on the Kwinana Freeway. One witness described the vehicle coming from behind her at speed, that there were two male occupants in their twenties and that the passenger had his left arm completely out of the window. As the vehicle approached the witness she heard a loud bang, though she was unable to determine the cause [64]. A second witness also described what was clearly the same vehicle travelling fast and aggressively coming up close to other cars. This witness also heard a loud bang which he described as being similar to a detonator [70].
10 The prosecution case was that the appellant had left the freeway, travelling along Holmes Road where the incident occurred and then attended at a hardware store in Bibra Lake. On the day in question work was being undertaken at the intersection of Holmes Road and Henderson Road. A witness who was carrying out traffic control duties at the intersection described a vehicle consistent with that of the appellant driving towards him on Holmes Road at a higher speed than other traffic. He said that the speed was sufficiently high that when the vehicle turned left into Henderson Road it swung out onto the far side of the road. Video
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- footage from a hardware store in Bibra Lake showed the appellant and his passenger in the store at 3.55 pm. Police estimated that it was possible to travel from the scene of the incident to the hardware store in approximately eight minutes.
11 Forensic testing at the scene did not produce any conclusive finding as to the identity of the vehicle that caused the accident. There was a tyre impression on the back of the deceased's shirt which was found to be consistent with the side treatment of the tyres on the appellant's vehicle. However, this was a 'class characteristic' in that the tyre impression was not 'matched' to a tyre on the appellant's vehicle but it could be said to be caused by a tyre of the same type and make as the tyres on the appellant's vehicle. It was not suggested that this amounted to a positive identification of the appellant's vehicle.
12 On the day following the incident, the appellant was admitted to Sir Charles Gairdner Hospital at the request of his general practitioner. At the hospital he was interviewed by a psychiatric nurse. The nurse said that the appellant was significantly distressed. He told the nurse that he had been involved in an accident, that there had been dust on his windscreen, that he saw bags of rubbish, that he told his passenger that he was going to run them over and that having done so he looked in his rear view mirror to see 'two bags rolling'. The appellant then said that he had been told he had killed someone and that he had no idea that he had done so. He said he had driven to a hardware store afterwards. He said he had done first aid training a number of times and would have stopped if he had known that someone was injured.
Defence case
13 The appellant formally admitted that the body of the deceased had been found on a verge adjacent to Holmes Road on 20 March 2006 and that she died of injuries that day. He also admitted that he was the owner of a red Toyota Hilux four-wheel drive, that he drove that vehicle south on Kwinana Freeway in company with a male passenger on 20 March 2006 and that he attended at the premises of the hardware store in Bibra Lake that afternoon. However, he denied that his vehicle had collided with the deceased while she was walking on the northern verge of Holmes Road.
14 As regards the statements made to the psychiatric nurse, it was submitted on the appellant's behalf that he was extremely distressed because he had been told that he may have killed a child while driving and
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- that it was possible that he had simply convinced himself that that is what had happened. The appellant elected not to give evidence in his defence.
15 In essence, the defence case was that there was no forensic evidence that conclusively linked the appellant to the incident and it was reasonably possible that someone else had run down the deceased. Whilst the appellant admitted being in the general area, it was submitted that the incident that he had described to the psychiatric nurse might not have been the fatal collision with the deceased, though he appeared to believe that it was when he spoke to the nurse. The implication contained in this submission is that it was possible that the appellant on this day, in the same general area, had deliberately run over some rubbish bags or some such similar object, but that whatever that object was it was not the deceased.
The reasons of the trial judge
16 The trial judge gave detailed written reasons in which he summarised the evidence and the issues. It is not contended that the trial judge made any errors as to the applicable law or in his summary of the evidence. His Honour then proceeded to make findings of facts at [303] - [338]. These findings were:
(a) That the incident occurred on 20 March 2006 on Holmes Road which is a single carriageway running east-west between Russell and Henderson Roads. That Holmes Road was a two-way road without road markings separating opposing traffic. At the time of the incident the edge of the bitumen road was beginning to crumble in some areas. On the northern side of the road there was a small gravel area. On either side of Holmes Road in the area adjacent to where the deceased was struck there was a grass verge about 7 m wide which was bounded on the northern side by a post and wire fence. The grass area on both sides of the road had some patches of sand. When travelling from Russell Road on Holmes Road in an easterly direction, there is a straight section of about 300 m before the road bends to the right. On that bend there are two driveways, one paved and one gravel on the southern side. The scene of the incident is in the area where the road begins to straighten, on the northern verge. After the bend the road continues for another 700 m before it meets the intersection of Henderson Road. At the relevant time it was a warm day and visibility was clear.
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- (b) At about 3.30 pm on 20 March 2006 the appellant was driving his red Toyota Hilux four-wheel drive motor vehicle south on Kwinana Freeway in company with a male passenger. The vehicle was fitted with a bulbar. The appellant left the freeway at Armadale Road exit ramp and turned right into Beeliar Drive. The appellant's manner of driving on the freeway was so aggressive and dangerous as to cause concern to two other road users.
(c) That at about 3.25 pm on the afternoon of 20 March 2006 the deceased was dropped off by a school bus driver at the intersection of Russell Road and Holmes Road. She then proceeded to walk in an easterly direction on the grassed northern verge of Holmes Road towards her home. She was on this verge, about 2 m from the road, when she was struck by a motor vehicle at about 3.45 pm. She suffered multiple injuries and died at the scene.
(d) The motor vehicle which struck the deceased was travelling east on Holmes Road and left the bitumen before striking the deceased and then returning to the road. The noise of the collision was heard by an occupant of a nearby house. The offending vehicle 'drove through' and did not stop. The driver made no attempt to decelerate the vehicle before the collision or apply the brakes of the vehicle to avoid colliding with the deceased. There is no evidence that the driver made any attempt to slow or stop the vehicle after it had collided with the deceased.
(e) The deceased died of multiple injuries caused by collision with the motor vehicle. She was struck from the back and left side. One of the injuries was consistent with impact from a bullbar frame and the degree of force involved was great. Whilst there was much speculation as to the exact position of the deceased at the time she was struck, there was no doubt that the deceased was hit by a motor vehicle and that the injuries sustained caused her death.
(f) The appellant drove his vehicle in an easterly direction on Holmes Road at about 3.45 pm on Monday, 20 March 2006. He was seen by the road-worker at the intersection with Henderson Road, travelling towards him at a speed which, in the circumstances, was excessive. The appellant and his passenger then drove to the hardware store in Bibra Lake. The manner of driving, having regard to the speed of the vehicle and the relevant circumstances (including the fact that roadworks required traffic to travel more slowly), was similar in quality to the conduct and manner of
- driving by the appellant observed a short time earlier on the Kwinana Freeway.
- (g) Two witnesses, Mr Separovich and Senior Constable Zampogna, were both present at the scene shortly after the deceased was found. They both observed a set of tyre tracks which left the road and passed in an arc through the area where the deceased was found before turning back onto Holmes Road. The evidence of Senior Constable Zampogna that these tyre tracks were caused by a four-wheel drive was accepted. These tyre marks had faded by the time other police officers arrived and before they could take photographs. Another police officer, Senior Constable Menner, informed other officers at the time that he had also seen the offending vehicle's tyre tracks before they had faded. Another tyre imprint remained visible. This was an imprint of about 9.25 m on the sandy part of the verge which finished about 16 m from the body of the deceased. This tyre imprint was overlaid indicating that the vehicle either reversed out or reversed in and drove out forwards. The degree of marking indicated that the vehicle that made this second imprint was not travelling at speed at the time it was made. The vehicle that made this imprint was not the offending vehicle. Nor was it made by the appellant's vehicle. A third imprint, closer to the road itself was 0.6 m long which his Honour found was also irrelevant to the incident. His Honour specifically rejected a contention that the 9.25 m prints could have been caused by the offending vehicle and that the deceased could have been propelled to where she was found from a point of impact that coincided with the end point of those prints.
(h) There was no forensic evidence to connect the appellant's vehicle to the deceased. Nor was there evidence that the appellant's vehicle was damaged by a collision with the deceased.
(i) The impression on the deceased's shirt was not 'matched' to a tyre on the appellant's vehicle but it was caused by a tyre of the same type and make as his tyres. The tyre impression had the same 'class characteristic' as the tyres on the appellant's vehicle.
(j) That on 21 March 2006 the appellant made admissions to the psychiatric nurse that are consistent with him being responsible for the driving which caused the death of the deceased.
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17 His Honour concluded that the appellant had made a deliberate and informed decision to drive off the road which, in all the circumstances, including speed, constituted a manner of driving which was dangerous to the public. This conclusion took into account that the appellant may have believed that the object on the verge was a bag of rubbish.
18 His Honour then said:
Having considered all the evidence, and having assessed the weight which is to be given to the united force of all the circumstances put together, I am satisfied beyond reasonable doubt that:
(1) On Monday, 20 March 2006 at about 3.45 pm, [the deceased], a 12-year-old girl, was walking home from school on the northern grass verge of Holmes Road, Munster in an easterly direction.
(2) At the same time the accused was driving his red Toyota HiLux four-wheel drive motor vehicle, registration number B 7023, also in an easterly direction on Holmes Road, Munster with one passenger, namely Mr Tasman Catchpole.
(3) While the accused was driving on Holmes Road he made a conscious decision to deliberately drive off the road over bags of rubbish, and as such his manner of driving (which expression includes speed) was dangerous to the public having regard to all the circumstances of the case.
(4) The accused's dangerous driving caused his motor vehicle to be involved in an accident which occasioned the death of [the deceased], who was struck by his motor vehicle and died at the scene from her injuries [353]. (Emphasis in original)
Ground 1 - The Menner plan
19 The appellant applied for leave to rely upon fresh evidence on the hearing of this appeal. That application is not opposed by the respondent.
20 The evidence consists of a hand drawn plan dated 20 March 2006. The plan is signed by Senior Constable Craig Menner and bears a time of 21:30. A copy of the plan was provided to the appellant's solicitors on 25 March 2011 by the Office of the Director of Public Prosecutions. A letter of that date stated that the plan had been recently found by a police officer in the course of file management. It was stated that neither the investigating police officer nor prosecution counsel at the trial had seen the plan before. The State accepted that the plan had not been disclosed in advance of the trial, which commenced on 22 November 2010. It was also accepted that the plan ought to have been disclosed. However, the
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- State submitted that no substantial miscarriage of justice had arisen as a consequence of the non-disclosure.
21 The plan is quite rudimentary. It does not purport to be to scale. It shows three parallel lines from east to west below which the name Holmes Road is written. Between the top two lines the words 'sandy/scrub bushland verge' appear. The lines curve to the south at the western end. At the eastern end, in the verge section, a stick figure under which the word 'deceased' is written appears. To the left of the stick figure is a square above which the words 'school bag' appear and to the left of that are two dashes adjacent to which is the word 'shoes'. To the left of this there is a line that curves back to the middle line which is presumably intended to be the edge of the road. Above this line appear the words 'tyre tread'. A similar such line also appears on the other side of the deceased also sloping back to the edge of the road. A copy of the plan is annexed to these reasons.
22 Senior Constable Menner was not called as a witness at the trial. The reasons for this were unclear, but more recent information suggests that he had left the police service by the time of the trial and was unfit by reason of ill-health to appear as a witness. However, it is accepted by all parties that Senior Constable Menner was one of the first police officers to arrive at the scene. He arrived with Senior Constable Zampogna and thus was in a position to see the tyre tracks that the trial judge concluded were those caused by the offending vehicle. These were said to be the tyre tracks referred to by Senior Constable Zampogna and Mr Separovich that later faded and were unable to be seen by others who subsequently attended.
23 The appellant submits that the Menner plan is inconsistent with the evidence of Senior Constable Zampogna and Mr Separovich in that it shows only one set of tyre tracks. It is contended that the tyre tracks shown on the plan must be those that were later photographed. Police officers who attended the scene later took photographs of the 9.25 m tyre tracks which were found by the trial judge to be unrelated to the incident. If the plan drawn by Senior Constable Menner shows only the unrelated tyre prints then it could cast doubt on whether there were other prints which were visible when Menner and Zampogna first arrived but later faded.
24 It was submitted that the absence on the plan of the tyre tracks described by Senior Constable Zampogna and Mr Separovich is not consistent with their evidence in that regard. It is contended that the Menner plan could have been used to contradict their evidence as to the
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- presence of the offending vehicle's tyre tracks and should have caused the trial judge to entertain a reasonable doubt about the reliability of the evidence of Senior Constable Zampogna and Mr Separovich.
25 The argument advanced by the appellant requires that a number of significant assumptions be made for which there is no supporting evidence. Firstly, it is assumed that the Menner plan must depict the 9.25 m overlaid tyre tracks that were later photographed. Given that those tracks were some 16 m from the location of the body there is no obvious reason why that must be so. As I have noted, the plan does not purport to be to scale or to be anything other than an indication of the location of things relative to each other. There is nothing to suggest that Senior Constable Menner ever considered that the 9.25 m tyre prints were significant and deserving of notation on this plan, whatever its purpose may have been.
26 Secondly, Senior Constable Menner was not available at the trial and, the court was told, is not now available to explain the meaning of the plan. Nor is there any reason to believe that he would be available at any possible future trial. The appellant cannot, by assertion, establish the relevance of this plan. In particular, it cannot be assumed that it bears the interpretation advanced on behalf of the appellant.
27 Thirdly, there is a marking on the plan to the east side of where the deceased is indicated which appears to be a continuation of the curved tyre tread. This is clearly not consistent with the 9.25 m tyre marks. Those marks were referred to as being 'double marks'; that is, that the vehicle which caused them returned the same way rather than continuing over the verge in an arc. Again, whilst interpretation of this plan is problematic, the existence of the second curved line is not consistent with the proposition advanced by the appellant. Rather, it is consistent with Senior Constable Menner having drawn the other tyre tracks which later faded and which were described by other witnesses.
28 In my view it cannot properly be asserted that the Menner plan is inconsistent with the evidence of Senior Constable Zampogna and Mr Separovich. Indeed, on its face, there is no reason to conclude that this plan is depicting anything other than the tracks which later faded.
29 It is also difficult to understand what could possibly have been done with the plan in the absence of Senior Constable Menner. It was suggested by counsel for the appellant that the plan could have been put to Constable Zampogna and Mr Separovich in cross-examination. However,
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- the document, not being theirs, and there being no suggestion that they participated in any way in its making, this could only be done in a limited way. There is an accepted practice deriving from The Queen's Case (1820) 129 ER 976 and R v Orton [1922] VLR 469 that permits a cross-examiner to put any document to a witness and, without identifying it, ask the witness to consider the document and to then ask whether they adhere to their previous testimony. That procedure has been criticised as being without proper foundation and potentially unfair: M McHugh QC, 'Cross-Examination on Documents' (1985) Australian Bar Review 51, 72; R V Gyles QC, 'Commentary' (1985) Australian Bar Review 69; D K Malcolm QC, 'Cross-Examination on Documents' (1986) 2 Australian Bar Review 267, 273; R N Chesterman, 'Evidence - Is he lying, or are you' (2007) 16 Hearsay (Journal of the Bar Association of Queensland). In some circumstances it has been disallowed: R v Hawes (1994) 35 NSWLR 294. However, assuming for the sake of argument that it would have been open to use this plan in the way suggested, it is difficult to see what could have been achieved. The implication in such a process is that the document shown to the witness contradicts their evidence. But this plan does not do so. There is no basis whatsoever for thinking that either of the witnesses concerned would have had any reason to change their testimony if shown this plan. It was suggested by the appellant's counsel that it could be put to the witness that the plan showed a different set of tyre prints and not those that they were describing. Such questions would be quite improper as they would have no evidential basis and would involve making unfounded assumptions as to what the plan depicted.
30 To the extent that it is relevant, it should also be noted that Senior Constable Menner in his statement of 31 July 2006 made no mention of the plan he had drawn but did refer to the tyre marks in a way that was consistent with the evidence of Senior Constable Zampogna. Furthermore, there was evidence that Senior Constable Menner had drawn the attention of Senior Constable Zampogna to the tyre marks in question. He had also spoken to Sergeant Appleby, a forensic officer who arrived later, about the tracks that he had observed. Sergeant Appleby said that by that time the tracks could not be seen and that such tracks could disappear over time. This evidence is not consistent with Senior Constable Menner having only observed the 9.25 m tracks and therefore only recording those on his plan.
31 It should also be noted that the significance of the tyre marks was limited. While Senior Constable Zampogna referred to them as having been made by a four-wheel drive, that no more implicated the appellant
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- than did the existence of the injuries caused by a bullbar. The real relevance of the tyre marks was that they were indicative as to how the accident had occurred; that is, by a vehicle driving off the road, hitting the deceased and continuing to drive back onto the road without stopping. The evidence of the appellant's admissions to the psychiatric nurse were also consistent with the incident having occurred in that way.
32 It is not contested that the plan should have been disclosed prior to the commencement of the trial. The question now is whether that non-disclosure caused any miscarriage of justice: Rinaldi v The State of Western Australia [2007] WASCA 53 [75] - [84] (Steytler P), [178] - [180] (Pullin JA); de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [150] - [152] (Pullin JA). The relevance of the plan now falls to be determined by reference to the contested issues in the case. Accepting that the existence of the tracks as described by Senior Constable Zampogna and Mr Separovich was in issue at the trial, (which is, in fact, not readily apparent from the transcript - see cross-examination of Zampogna at ts 369 - 371) or that such an issue could reasonably be argued, the question is whether the plan could have assisted in the resolution of that issue. If it could not, then any suggestion that there was a miscarriage of justice must fall away.
33 The contention by the appellant that the plan positively shows that the fresh marks were not seen by Senior Constable Menner is without merit. In my view, the non-disclosure did not occasion any substantial miscarriage of justice nor did it involve a departure from the requirements of a trial according to law: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18]. On the available information there is no reason to conclude that the Menner plan is anything other than consistent with the evidence that was given at trial in regard to the offending vehicle's tyre tracks.
34 I would dismiss this ground of appeal.
Ground 2
35 The appellant relies upon a statement made at [111] of the trial judge's reasons in which he referred to the appellant as travelling east on Holmes Road at a time which put him at the scene of the accident 'very proximately'. It is suggested that this is inconsistent with his Honour later finding that the appellant was at the scene within minutes of the time at which the deceased was struck.
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36 This ground is baseless. The comment made at [111] relates to only one part of the circumstantial evidence. The whole of that evidence includes that the deceased was seen walking on Holmes Road at approximately 3.45 pm. Mr Separovich heard a thud at around the same time. The deceased was found by another driver at 3.51 pm. The appellant was seen in the hardware store between 3.55 pm and 3.59 pm. When this evidence is added to the admissions made to the psychiatric nurse that the appellant went to a hardware store after the incident that he described, and the evidence of the road workers who referred to a regime of inspections which placed the sighting of the appellant's vehicle within a time proximate to the occurrence of the incident, his Honour's conclusion that the appellant could be placed at the scene within minutes of it occurring was well-founded.
37 The ground is framed in terms that the trial judge 'failed to find' beyond reasonable doubt that an indispensible link in the State's case was proven in that the trial judge did not state that he was satisfied beyond reasonable doubt that the appellant's vehicle was on Holmes Road at the relevant time. In fact, it is clear that his Honour did make such a finding: see [340], [342] and [353] ([353] is referred to above).
38 This ground of appeal should be dismissed.
Ground 3
39 This ground contends that it was not open to the trial judge to conclude beyond reasonable doubt that the appellant's vehicle was travelling along Holmes Road at the relevant time. This is said to be because his Honour failed to exclude a reasonable hypothesis consistent with innocence that the appellant's vehicle was not in that location. Clearly a finding beyond reasonable doubt that the vehicle was in that location must exclude, as a necessary corollary, that it could have been elsewhere.
40 There was evidence available to the trial judge upon which he was entitled to conclude that the appellant's vehicle was on Holmes Road at the relevant time. That evidence included the admission by the appellant that he was driving his red Toyota Hilux four-wheel drive south on Kwinana Freeway near Murdoch on the relevant afternoon [334], the vehicle was fitted with a bullbar [329], the appellant's presence at the hardware store at about 3.55 pm [334], the hardware store could be reached from the point of impact at ordinary road speed in eight minutes [115], the compelling confessional evidence to the psychiatric nurse [238], that 20 March 2006 was not a rubbish collection day for the area
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- concerned [184], that the side wall tyre impression on the deceased girl's shirt was consistent with the tyres on the appellant's vehicle [226], [333], that the tyre marks were made by a four-wheel drive vehicle [325], that the injuries sustained by the deceased were consistent with impact from a bullbar frame [257], [319], the description given by the road worker of his observations of a red dual-cab ute travelling east on Holmes Road before turning left at speed onto Henderson Road and heading north [104] - [112], the timing of the fatal incident as being at approximately 3.45 pm and the evidence of the manner of the appellant's driving on Kwinana Freeway shortly beforehand [73].
41 Given this evidence it was clearly open to the trial judge to exclude as a reasonable hypothesis that the appellant was not in Holmes Road at the relevant time and he very clearly reached that conclusion. There is no merit in this ground and, in my view, it should be dismissed.
Conclusion
42 Leave to appeal in respect of the three grounds was granted by Mazza J on 16 May 2011. For the reasons I have given, none of those grounds can succeed and I would dismiss the appeal.
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