R v Bowman

District Court

New South Wales

Case Name:	R v Bowman
Medium Neutral Citation:	[2015] NSWDC 94
Hearing Date(s):	1 – 10 June 2015
Decision Date:	10 June 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Not guilty
Catchwords:	CRIMINAL - trial by judge, driving in a manner dangerous, "honest and reasonable mistake", "impact", falling off a motor vehicle, expert evidence - interpretation of injuries.
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	CTM v R [2007] NSWCCA 131 Fleming v The Queen (1998) 197 CLR 250 Jiminez v The Queen (1992) 173 CLR 572
Category:	Principal judgment
Parties:	Director of Public Prosecutions Steven Bowman - Accused
Representation:	Counsel: Mr L Shaw – Crown Ms S Kluss - Accused Solicitors: Director of Public Prosecutions Hadden Kemp Solicitors - Accused
File Number(s):	2013/2701

JUDGMENT

Introduction

Steven Bowman (“the accused”) was arraigned on 1 June 2015 on a charge alleging that:
“On 31 December 2012 at Narrabri in the State of New South Wales (he) did drive a motor vehicle, namely a Holden Commodore, in a manner dangerous to another person, whereby the vehicles involved in an impact as a result of which the death of Kim Barnes was occasioned. “
To this charge the accused pleaded he was ‘not guilty’. The trial proceeded as a trial by Judge, in accordance with the provisions of s 132, 132A Criminal Procedure Act 1986, although the accused required leave to make the application given the timing of it.
The offence alleged against the accused is one contrary to s 52A(1)(c)/(5)(g).

The Crown case

The relevant events involving the allegation brought against the accused arise from various occurrences on New Year’s Eve 2012 at Narrabri. The accused is alleged to have injured the deceased at about 10 pm that evening. The accused and the deceased were in a domestic relationship and had been for a number of months. They lived together at her home at 81 Peele Street Narrabri. On New Year’s Eve there was a dispute between them at a hotel on Maitland Street Narrabri where they were drinking, the detail of which is not required to be examined at this point. The Crown case was that the accused after various arguments with the deceased back at their residence, went to his motor vehicle parked in the driveway of the deceased’s home. He reversed the vehicle up the driveway and then drove off along Peele Street to the intersection of Clarke Street at a time when the Crown alleges the deceased was at one point sitting on the rear spoiler or on the boot of the vehicle, a blue Commodore sedan registration no. (NSW) BF68TR. The Crown case was that she was doing this either at the time the accused was reversing the motor vehicle or whilst the accused was driving the vehicle away from the front of the home of the deceased. The prosecution alleges that she fell off the vehicle suffering the injuries that lead to her death.
The Crown case proceeds on the basis that there was no dispute as to the accused driving the motor vehicle. The critical issues anticipated by the prosecution were establishing relevant “impact” arising from the driving of the motor vehicle in circumstances contemplated by s 52A(5)(g) Crimes Act 1900 whilst the accused was driving “in a manner dangerous to another person”.
In proving the case against the accused, the Crown relied upon evidence concerning the dispute that occurred between the deceased and the accused during New Year’s Eve, culminating in the accused deciding to leave the deceased’s premises, shortly before 10 pm, observations of the deceased and the accused before and after she was injured, the accused’s subsequent conduct and representations, the “objective” crime scene evidence arising from the examination of the area where the deceased suffered her injuries, the examination of the motor vehicle, the character and interpretation of the injuries suffered amongst other matters.
Although there was a body of evidence of surrounding circumstances to the cause of the injuries suffered by the deceased there were no eye witnesses to any alleged impact. The mechanism(s) for the cause(s) of those injuries suffered in the context of the impact pleaded ultimately were to be drawn or concluded by inference from such facts as could be established. The prosecution relied upon statements and conduct of the accused after the event as evidence of “consciousness of guilt” particularly relevant to negativing “honest and reasonable belief”, or which might otherwise shed light on the circumstances of the alleged “impact”. He told lies about whether he was driving the car, who had driven it and endeavoured to encourage others (particularly Brittany Herring the 17-18 year old daughter of friends) to tell lies about this matter.
From the defence perspective there was no issue that at relevant times the accused was driving the motor vehicle. However, it was not conceded that the driving of the accused caused the relevant impact or that the driving was “in a manner dangerous”. It was claimed by the accused in various police interviews that at relevant times he was unaware that the deceased was sitting on the rear of the car.
The accused was spoken to by police at the scene shortly after the injuries were suffered by the deceased and also interviewed in two electronic interviews conducted on 1 and 3 January 2013. In those interviews he denied knowledge of the deceased being on the vehicle at relevant times he was driving the vehicle. He stated that the last time he saw the deceased before she suffered any injury was when he saw her in the driveway as he was reversing the motor vehicle. He said he kept a ‘proper lookout’ as he was reversing.
A large part of the evidence in the case was not disputed. Many statements of police and civilians were tendered without objection. Annexed to this judgment is the exhibit list.

Legal Principles to be applied

This is a trial by Judge alone in accordance with the relevant provisions of the Criminal Procedure Act 1986. A trial by Judge, as it is described in the relevant provisions, requires the trial Judge not just to state that the principles of law which were applied in the findings of facts that were made, but also to expose what is described as “the reasoning process” justifying the findings of fact and ultimately the verdict or verdicts returned.
All principles of law which are relevant are required to be applied and considered should be identified in the judgment including any necessary warnings that the trial Judge is required to apply in the assessment of the evidence. Where particular warnings are applied a Judge must state, where appropriate, the appropriate warnings or the consequences of them and why a particular verdict has been reached (Fleming v The Queen (1998) 197 CLR 250).
So far as the onus and standard of proof is concerned the prosecution bears the burden of proving the guilt of the accused. That burden or onus rests upon the prosecution throughout the trial in respect of all matters requiring proof by the prosecution. The accused bears no onus of proof in respect of matters requiring proof by the prosecution. He is presumed to be innocent of any charge or charges brought against him until such time as that presumption is displaced by the Crown establishing his guilt.
The elements that the prosecution must establish are:
i. that the accused was the driver of the vehicle; and
ii. that vehicle was involved in an impact, namely that the deceased fell from the motor vehicle while being conveyed in, or on, the vehicle,
iii. that the impact caused the death of the deceased; and
iv. that, at the time of the impact, the accused was driving the vehicle in a manner dangerous to another person.
v. that at the time of the driving dangerously the accused had no honest and reasonable belief that it was safe to drive.
If the Crown fails to establish any one of the five essential facts or ingredients of the offence of dangerous driving you must find the accused “not guilty”.
A person drives a motor vehicle when he or she has management and control over its movement, whether by the use of the accelerator or gears, or simply by releasing the brakes and allowing gravity to operate. The driving must be the voluntary and conscious act of the accused.
The fourth essential ingredient that the Crown must prove beyond reasonable doubt is that the accused was driving in a dangerous manner at the time of the impact. The manner in which a person drives a vehicle includes all matters connected with the management and control of the vehicle when it is being driven, including its speed. Whether or not that manner of driving was “dangerous” will depend upon all the circumstances in which it took place. This includes such factors as the time of day, the nature of the road surface, the weather conditions, and the general area in which the vehicle is being driven.
A person’s management and control of a vehicle may, in some cases, be potentially dangerous to other persons by its very nature, whatever be the circumstances in which the vehicle is being driven. For example, driving a motor vehicle with no effective brakes is an example of dangerous conduct in the use of a motor vehicle, regardless of where and in what circumstances it is being driven. This is because the ability to bring a vehicle suddenly to a stop is essential to the proper management of a motor vehicle.
In other cases, the particular circumstances in which the vehicle is being driven by a person makes the driving potentially dangerous even though the driving may not be dangerous in other situations. For example, driving through a red light in a busy intersection in the middle of a suburban shopping centre on a Saturday morning may be an example of driving which is dangerous because of the circumstances in which the driving occurs. That situation can be compared with driving through a red light on a country road in the early hours of the morning when it is clear that no other vehicle is in the area. In those circumstances driving through a red light might not be considered to be dangerous even though it may be a breach of the traffic regulations. What distinguishes these two examples is the degree of risk of harm to other persons that arises from the manner of driving in the particular circumstances.
The manner of driving will be dangerous if the Crown establishes beyond reasonable doubt that there has been a serious breach of the proper management and control of a motor vehicle and that the breach is so serious that it creates a real danger to another person or persons in the vicinity. The use of a motor vehicle is always potentially dangerous to some degree simply because it can so easily cause injury to another person in its vicinity. That potential can be minimised where the driver exercises proper control and management of the vehicle so as to avoid an impact with any other person or object. Of course drivers are subject to human frailties and not every driver always exercises all the care and skill expected. But that does not mean that a driver is driving dangerously simply because of such a failure.
The offence of dangerous driving is made out where the driver so seriously fails to properly control and manage the vehicle that he or she creates a real danger of harm to other persons in or around the vicinity of the vehicle far exceeding that which arises simply from the normal use of a motor vehicle. Driving in a dangerous manner is a breach of the criminal law whether or not it results in any impact because of the real risk of harm that it creates.
I am concerned with the risk of harm arising from the manner of driving, rather than the result of the driving when deciding whether the driving in the particular circumstances was dangerous. So in deciding whether the accused’s manner of driving was in all the circumstances dangerous I do not take into account the fact (if established) that there was an impact or the result of the impact, including as it does the death of Kim Barnes. A person can drive dangerously but by pure good fortune or the skill of another driver, avoid any impact with another vehicle or a person or object in the vicinity of the vehicle. On the other hand a driver may collide with another vehicle or a person on or near the road as the result of some unavoidable and exceptional incident even though the person is driving with proper care and attention.
The test as to whether the conduct of the driver was dangerous is an objective one. The Crown does not have to establish that the accused knew or realised that he was driving the vehicle in a dangerous manner. His conduct must be judged according to an objective community standard which applies to all drivers of vehicles. That standard does not take into account any personal characteristics of the driver, for example, his or her experience or inexperience as a driver. A person can be driving dangerously even though that person believes that he or she is doing his or her best to avoid a collision.
The prosecution must prove a relevant “impact” arising in the circumstances pleaded. Here the prosecution alleged impact caused by falling from the vehicle while the accused drove in a manner dangerous. The “manner dangerous” included his self-admitted driving of the vehicle, failing to keep a proper lookout, the fact at relevant times that the deceased was sitting on the vehicle or was “on” it in some way.
The prosecution must also establish beyond reasonable doubt, provided that the accused has discharged the relevant “evidentiary burden”, that the accused did not believe on reasonable grounds in the existence of facts which would not make his manner of driving dangerous i.e. that it was safe for him to back up the driveway and drive down Peele Street in the manner in which he did (CTM v R [2007] NSWCCA 131 (at [67] – [76]), Jiminez v The Queen (1992) 173 CLR 572 (at 583)).

Consciousness of guilt

The next direction I must give myself concerns the evidence of statements of the accused about whether he was driving his car and his knowledge of the whereabouts of the motor vehicle, which the prosecution alleges were lies, as well as what he said to Brittany Herring about her handling of the car and what she should tell the police about who was driving the vehicle and other matters. The Crown says that he told lies, because he later admitted driving the car at relevant times and other evidence contradicts his initial versions to police in this regard. It also points to what is established from his communications with Brittany Herring before she spoke to police. These representations and his conduct represent evidence of “consciousness of guilt”.
A lie is to say something untrue, knowing at the time of making the statement that it is untrue. If a person says something which is untrue, but does not realise at the time that it is untrue, then that is not a lie. The person is simply mistaken or perhaps confused. Even if the person later comes to realise that what he said was incorrect, that does not transform the statement into a lie. To be a lie, the person must say something that the person knows, at the time of making the statement, is untrue.
If I find that the accused made the statement I have just referred to, and I find it was a lie, or I conclude that he acted in a way and made representations that reflected a consciousness of guilt, then I must exercise care with which I must approach the task of deciding what significance, if any, this body of evidence, or any particular part of it has. I may take these lies and/or conduct and representations into account as evidence of the accused’s guilt but I can only do that if I find two further things which I will refer to shortly. This evidence can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. The Crown does not suggest that if I found the accused told a lie or conducted himself with a “guilty mind” that this finding can prove the guilt of the accused by itself.
Apart from the fact, if established, that the accused made the statements and that they amounted to a deliberate lie, or encouraged others to tell lies or otherwise conducted himself as set out above or conducted himself in a particular way by representations or otherwise, before I can use the lies and/or conduct as some evidence of the accused’s guilt I must find two further matters proved.
First, I must find that what the accused said that what amounts to a lie relates to an issue that is relevant to the offence the Crown alleges that the accused committed. These matters, either singularly or taken together in part or whole, must relate to some significant circumstance or event connected with that alleged offence. The Crown says these matters are relevant because the lie or lies and other conduct established that the accused was seeking to cover up for what he had done.
Second, I must find that the reason the accused told this lie or acted in a particular way was because he feared that telling the truth might reveal his guilt in respect of the charge he now faces. In other words, he feared that telling the truth and/or encouraging others to tell the truth would implicate him in the commission of the offence for which he is now on trial.
I must remember, however, that people do not always act rationally, and that conduct of this sort, that is, telling a lie and/or in other respects, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal his guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence, even if that consequence is a fear of criminal prosecution for some other crime or wrongdoing.
If I think that the lie and other conduct may have occurred for some reason or reasons other than to avoid being implicated in the commission of the offence for which the accused is now on trial, then that evidence cannot be used as evidence of the accused’s guilt. If that is the case, I must put it to one side and focus my deliberations upon the other evidence in the case. Even if it can be used in part or in total to support proof of guilt it has to be considered with other findings on matters relevant to proof of guilt or otherwise.

Inferences

As the judge of the facts I am are entitled to draw inferences from facts that I decide are established by the evidence. The drawing of inferences is something we do in our everyday lives, although perhaps less consciously than I will in my deliberations. An inference is a conclusion or conclusions drawn from the existence of a combination of facts. I must not draw an inference unless it is a reasonable inference that can be rationally drawn from the evidence that I accept.
I must be careful about drawing inferences. Especially where the inference is about guilt, or the existence of an element of the offence. When drawing inferences about guilt or the existence of an element to be proven by the prosecution, that is an inference or conclusion adverse to the accused, I must not draw that inference unless it is the only reasonable inference that can be drawn beyond reasonable doubt.
There may be a number of inferences that can be reasonably drawn, some adverse to the accused and some not adverse to the accused (ie: inconsistent with guilt or the existence of an element). In such a situation I must not draw the inference adverse unless I am satisfied of two things:

I am satisfied beyond a reasonable doubt that all inferences favourable to the accused can be excluded; and
the only inference that can be drawn beyond a reasonable doubt is the one or ones adverse to the accused.

Unless I reach that point I would find the element is not made out and that the accused is not guilty where proof of it depended upon the drawing of relevant inferences.

So long as there remains an inference reasonably open that is favourable to the accused that cannot be excluded beyond a reasonable doubt I must find the element not made out and find the accused not guilty.

Expert evidence

In this case, Dr Duflou has been called as expert witnesses. He is a qualified and experienced pathologist. An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is, what they saw or heard, and are not permitted to express their opinions. There is no dispute Dr Duflou is an expert.
Of course, the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. It may depend upon the confidence with which an opinion is expressed. Another relevant matter is the number of differing opinions or conclusions given by the expert in relation to the same subject matter. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’s specialised knowledge.
The expert evidence is available as part of all the evidence to assist me in determining the circumstances and possible mechanisms for causing relevant injuries and the cause(s) of the pattern of injuries contributing to death. Here there is no doubt that the deceased died from injuries suffered on Peele Street Narrabri.
The expert evidence in general terms has not been challenged. Accordingly, if it is not inherently unbelievable, I would need to have a good reason to reject it.

S 165 (1) (b) warning regarding Brittany Herring.

The prosecution relies upon evidence of this witness to establish representations and conduct of the accused as evidence of consciousness of guilt.
s 165 of the Evidence Act provides that:
“ .. evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies,
.. evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,”
may be unreliable.
I am invited to approach the evidence of Ms Herring applying this warning in mind given her belief that she was driving a vehicle unlicensed and was endeavouring to assist the accused to cover up his connection with his motor vehicle at the time when he may have believed or suspected that impact or contact with the deceased that may have caused her injuries as they were known on 31 December 2012. She may have had her own interests or those of her parents to protect in giving accounts that might implicate the accused in some way.

Silence in court

The accused did not give evidence. The accused bears no onus of proof. The accused is presumed to be innocent until I have been satisfied by the Crown that he is guilty, if indeed I am so satisfied. Consistent with this, the accused is entitled to elect to say nothing and to make the Crown prove his guilt. The accused in this trial has chosen, as is his right to do so, not to say anything in Court. An accused person cannot be compelled in Court to say anything.
I cannot not draw any adverse inference against the accused because he has exercised his right to silence in Court. I cannot interpret it in any way as being an acknowledgment on his part as to the accuracy, veracity or strength of the Crown case. I should not be tempted to reason that the accused has remained silent in Court because he is guilty. Such reasoning is prohibited and I must not engage in it. Such a process or means of reasoning is entirely inconsistent with the burden of proof resting upon the Crown.
I must not speculate as to why the accused has not given evidence. Furthermore, I must not treat the accused’s election not to give evidence as being capable of filling any gaps in the Crown case that I may perceive to exist. As it is he was extensively questioned by police on two occasions shortly after relevant events.

Evidence in the trial

I have taken all the evidence into account but cannot quote all relevant parts. A great deal of the evidence in the trial was produced by tender of statements without need for witnesses to be examined or cross examined. This was particularly true of most of the “civilians” who provided statements to the police. Those witnesses were categorised as; those who saw the deceased (with or without) the accused at hotels in downtown Narrabri; Cathy Smith, Mark McMahon, Wendy Jane Weakley, Geoffrey Raymond Brown, David Roy Sutton, Graham Ross Richardson, Richard John Moore, those present in the vicinity of 81 Peele Street Narrabri (including neighbours and their guests); her sons Matthew Graham Edwards, Joshua Keith Edwards, Haydan James Ryman and neighbours etc Robert Kerr, Shaun Thomas Kerr, David Patterson, Kerrie Evelyn Patterson, Allan James Pym. A number of police officers were called to give oral evidence, but only a few were examined or cross examined at any length. Many of them merely identified their statements which were tendered. There would appear to be little dispute with much of the evidence in the Crown case concerning the activities of the accused and the deceased in the afternoon of New Year’s Eve and the early evening, the activities of the accused and the deceased a short time before the deceased was injured and the accused’s contact with police, statements to them and other events affecting him in the course of the police investigation in the late hours of New Year’s Eve and during 1-3 January 2013. This was reflected in the submissions which I summarise later.
The first group of witnesses whose statements were tendered, in conjunction with those accounts given by the accused consistent with their recollection, were concerned with the movements of the accused and the deceased in the township of Narrabri, during the afternoon and evening of 31 December 2013.
The accused and the deceased during the afternoon and early evening attended upon the Namoi Hotel and then Tattersall’s Hotel in Maitland Street Narrabri, approximately one and a half to two kilometres (according to the scale on Exhibit A) from the residence of the deceased and the accused. The deceased was also seen at the Tourist Hotel apparently after she and the accused separated. The accused and the deceased were seen together first that afternoon when one witness described the deceased at about 3.30 pm as being “extremely happy” and “the happiest that she had seen her in a long time (Cathy Smith a friend of 29 years). She said that during the afternoon of New Year’s Eve the deceased became “heavily intoxicated” and in the witness’ presence the deceased had about 8 schooners of full strength beer.
She saw the deceased sometime after 7.30 pm at another hotel, the Tourist Hotel and the deceased was “visibly upset and crying”. She said that she had had an argument with the accused and he had threatened her. When an offer was made to contact the police she said “No I will just hide”. I point out there is no independent evidence of any threat to the deceased by the accused.
Other witnesses saw her throughout the evening, happy at first but then very intoxicated, including a man who eventually stayed at the deceased’s home after she had been found injured in Peele Street sometime after 10 pm. One witness, Geoffrey Brown, saw the deceased and the accused together in a happy mood, but later saw her around 8.30 pm distressed, unable to find her car and being anxious to obtain a taxi cab. Her car had been picked up by one of her sons. Before that occurred David Sutton, who was working at the Tattersall’s Hotel Bottle Shop, saw the accused in the back beer garden, and then saw the deceased “staggering” in the beer garden appearing to be “affected by drugs or alcohol”. She apparently came in and out of the beer garden while the accused was there. He saw no argument between the accused and the deceased.
The licensee of the Tourist Hotel saw the deceased at one point before 9 pm “obviously intoxicated by the way she was staggering” and appearing in a distressed state. She made a claim that she was afraid to go home because she would “get bashed” but did not seek any further assistance. She made no specific allegation to that person against the accused. He placed the deceased’s intoxication at that time as “about 9-10” out of 10. It would appear that she had her last drink sometine before 9 pm. At 11.15 pm a blood sample was taken at Narrabri Hospital ante-mortem showing a reading of 170 gms per 100 mls of blood (0.170).
The taxi driver who drove the deceased home from the Tourist Hotel said that she was in a distressed state, and drove her to Peele Street, when he asked her if she was “alright” she mumbled something he could not understand. She was asked if she wanted to go to the police but she did not effectively respond.
Her two sons and a friend were at home when the accused arrived by himself having left the deceased in town at Tattersall’s Hotel. The friend (Haydan Ryman) said that when the accused came home to Peele Street sometime after 9 o’clock, as I would understand the chronology, he appeared “pretty calm” and the witness did not think he was intoxicated although he had been drinking.
He said the deceased arrived 10 or 15 minutes later and “looked stressed” and was “crying”. When she saw the accused she “started going agro towards him” and said words, “I fucking hate you” which were heard also by neighbours. The deceased was aggressive towards the accused, but there is no evidence from any witness of any aggression from him. She pushed him up against a wall while he was sitting on a chair and the witness described her as being unable to “stop carrying on”. He heard “stuff smashing inside the house”. He then left.
The deceased’s two sons Mathew Edwards and Josh Edwards, one nineteen, the other twenty four years of age, gave evidence that the accused came home first. He told Mathew that the deceased, the mother, was still at the pub and said he left her because “she was saying she hated me”.
He described his mother returning to the house about 20 minutes later, telling the accused she hated him, crying, pushing him in the chest while he was sitting down causing his head to hit the glass window. The accused said, “I haven’t done anything to you Kim, I don’t know why you reckon you hate me”. She followed the accused around the house as he walked away from her, and she was “fairly drunk”. He said she was “staggering a bit” and when she drank normally “little things can set her off”. He described his mother as “going off her head” and he left the house leaving the accused and his mother in the house, observing the accused’s blue Commodore and his white work ute, parked respectively in the driveway and at the front of the house.
Joshua gave a similar account to his brother concerning the accused coming home, his mother coming home about 20 minutes later and telling the accused that she “fuck’n hate you”. He described the accused being pushed, looking angry but not engaging the mother. He did not think the accused was “crazy or would hit her”. He left the house as well and saw nothing more.
There was evidence from neighbours who either heard things during the course of an argument at the home of the deceased after she returned from the hotel, or saw her on the roadway. The most detailed evidence was from Robert Kerr, a man to whom the accused referred as having spoken to after he discovered that the deceased was injured on the road.
He heard her crying, saying “You left me there,” and her also saying words similar to “You have been cheating on me”. She continued to yell words similar to this. At one point he walked up the stairs of his house and looked across to the neighbouring garage of the deceased and could see her legs off the ground, she was sitting on the car facing the road, he could only see her ankles and could see the “bumper” of the car but “could see exactly what car it was”. This is a critical piece of evidence on the prosecution case.
He said:
“I recall thinking at the time how silly it was her sitting on the car. The arguing had stopped at this time so I wasn’t really that worried. I continued walking inside and placed some trays of food on the kitchen bench. I’d only just began (sic) to sort through things when I heard a car revving very loudly and spinning its wheels in the gravel out the front.”
He went outside and he saw the deceased “lying face down” on the roadway out the front of another house. He got his torch, went to look at the deceased who was bleeding from the face and he rang triple O for an ambulance. He gave evidence of the ambulance arriving, I accept that the accused spoke to Robert Kerr while awaiting the ambulance.
His son, Shaun Kerr, heard the deceased accusing the accused of leaving her behind, and of having an affair by “sleeping” with someone. The accused was not yelling. He saw the accused move the deceased’s car at one stage and she was accusing him of “stealing” her car. He got out of her car and gave her the keys to it . Then he saw the accused drive his white HiLux van down the street.
At this stage he saw the deceased moving around near her property. She was still yelling and he could hear something being thrown against tin, later on a couple of minutes later he heard another car back out from underneath the house and heard it spin its wheels out the front of their house. He said “I then heard a thud and the car continued on, it didn’t stop or anything”. He later saw the deceased lying on the ground and she was obviously injured. Triple O was called to arrange the ambulance and he saw the accused in the vicinity of Fraser and Peele Streets, at one point talking to the occupants of a Nissan X-Trail car. Exhibit A shows the next cross street to where the deceased was found is Fraser Street a distance of less than 100 metres, possibility no more than 40-50 metres, and the next cross street further away is Clarke Street, another 150-200 metres approximately.
At various times he saw people talking to the accused and saw the ambulance arrive. One of Mr Kerr’s guests at his home that night had heard the deceased say “I hate you, I hate you”, and she sounded “really upset” and was “crying”. Similar evidence appears in the statement of that person’s wife, who heard a female voice saying “I hate, I hate you” and she was “yelling, swearing at someone”. She said she saw a white dual cab ute leave and a person with a white singlet on a mobile phone out the front of the Kerr’s house, and when she and her husband left she did not see anybody on the road. Another neighbour at about 10 o’clock that night heard a male voice yell “Get in the fucking car”. Whether this was the accused is impossible to say. Then about 5 minutes later heard a siren. He does not know where the voices came from.
Civilian witnesses who gave oral evidence included Brittany Herring, Darryl Farrar, Jeania Page and Michael Page, whose evidence was concerned with matters relating to the conduct of the accused after the deceased was injured and the handling of his motor vehicle by Brittany Herring, and her step father Michael Page after the accused had parked it around the corner from Peele Street in Clarke Street, some short time after the deceased was injured.
Both Ms Herring and Mr Farrar were young people, as I would understand it 17 or 18 years of age at the time. The Pages were close friends of the accused. Michael Page in one part of the evidence described as the accused’s “best friend”. They lived in the same street as the deceased, but at the other end of the street at 13 Peele Street, near what was described as the “Public” school. The deceased was known to them. The accused in his interview described the deceased accusing him of having an affair with people who I took to be Ms Herring and Ms Page amongst others and there was general support for this from persons who saw her earlier in the evening and heard her yelling out at 81 Peele Street. This would appear to be an allegation that would appear to be untrue and reflective of her “distressed”, irrational and/or intoxicated state.
Ms Herring gave evidence of various phone calls and text messages between herself and the accused it would appear occurring after the deceased was injured, from about 10.01 pm onwards. There was specific evidence given by Detective Beddoes concerning phone charge records of calls made by the accused to Ms Herring and the call ultimately to Moree Police Station by the accused, which call was made at about 10.07 pm. This is confirmed in a statement made by Sgt Ward. The accused identified himself and complained that he had had a fight with his girlfriend and “she has threatened me with a knife, I tried to leave and she has followed me onto the road”. He told that Police Officer “I don’t want to go back there when she is like this”. The accused said he would go down to the house when the police arrived, which in fact he did. He rang Ms Herring according to the call charge records at 10.01 pm and spoke to her for 150 seconds, or at least that was the length of the call. The text messages are set out so far as times and content are concerned in Exhibit J6. It is appropriate to incorporate its particulars into the judgment.

Date	Time	From whom to whom	Duration or SMS content
31.12.12	21.55.43	Bowman to Herring	SMS Hey wat u doing
31.12.12	21.55.45	Bowman to Herring	Phone call 5 seconds
31.12.12	22.01.42	Bowman to Herring	Phone call 150 seconds
31.12.12	22.05.24	Kerr calls 000	Phone call
31.12.12	22.06.58	Bowman calls 112 (emergency)	Phone call 12 seconds
31.12.12	22.07.29	Bowman calls 1234 and put through to Narrabri Police Station	Phone call 110 seconds
31.12.12	22.42.12	Bowman to Herring	SMS What going on where you at
31.12.12	23.03.07	Bowman to Herring	Phone call 14 seconds
31.12.12	23.04.00	Bowman to Herring	Phone call 6 seconds
31.12.12	23.04.27	Bowman to Herring	Phone call 80 seconds
31.12.12	23.07.59	Bowman to Herring	Phone call 200 seconds
31.12.12	23.28.41	Bowman to Herring	SMS Just tell craig drove the car n kim chased him up the road
31.12.12	23.30.25	Herring to Bowman	SMS
31.12.12	23.35.59	Bowman to Herring	SMS K
31.12.12	23.40.36	Bowman to Herring	SMS Tell em to dump it at cop shop
31.12.12	23.40.50	Bowman to Herring	SMS Don’t burn it
31.12.12	23.42.52	Herring to Bowman	SMS Mum just said they aren’t burning it and they aren’t driving it over town they said they are gonna dump it at the creek at the end of peele street at mums end
31.12.12	23.50.10	Bowman to Herring	SMS K just say she chased car up road n all good
1.1.13	00.07.52	Bowman to Herring	SMS Yeag
1.1.13	00.09.41	Bowman to Herring	SMS Yeah but they wanna look at me car they reckon I hit her so if they c the car they wik know I didn’t
1.1.13	00.25.56	Bowman to Herring	SMS Just say u came down drove my car to end of street n she chased u up rd
1.1.13	00.44.50	Bowman to Herring	Phone call 237 seconds
1.1.13	3.24.40	Bowman to Herring	Phone call 428 seconds

Ms Herring’s evidence was that the accused rang her and asked her to take control of his blue Commodore vehicle and amongst other things at various times by phone message or SMS messages asked her to wipe the car down and to “burn it”. She also said that when he first rang her he asked her to take him to Warialda because he had had a fight with “Kim” and wanted to go to his “sister’s place”. There appears no record of this call unless it is a call at 9.55. On the other hand it is consistent with the accused wanting to get away from ‘Kim’. He also said to her Kim was accusing him of sleeping with her, her sister and her mother. This appears true. She was at a party on the other side of town (at Zeia Wall’s place at Thurlagoona Drive Narrabri) and when rung by the accused she was driven by her “brother”, Mr Farrar, to near the intersection of Fraser and Peele Streets where she saw and spoke to the accused. He gave her his car keys.

Her evidence was that she drove the vehicle from where the accused parked it in Clarke Street to a paddock next to her parents place in Peele Street, Mr Farrar driving to the same paddock in his own motor vehicle. She was unlicensed and was concerned about getting into trouble for that. In fact she did get into trouble from her step father who was very angry about her driving the car.
She alleged that when she had control of the car she received more than one SMS message, including a message telling her to tell the police presumably that “Craig” (who lived on her parents property) was “driving the car” and “Kim was chasing it”. She said that the accused told her to “get rid of it and burn (the car)”. She said she got a cloth and wiped the dust off the car. She said she had been asked to “wipe the dust off the car”. She thought there may have been a “crack on the wing” or the “spoiler”. She received later messages from the accused when she returned to the party she was attending on the other side of Narrabri sometime before midnight after leaving the blue Commodore at her parents place, including a verbal request by the accused for her to go down to the police station. This request was made after which the accused when speaking to her passed the phone to a police officer. She denied that she wiped down the car to remove her own finger prints to cover up the fact that she was driving. A cloth was recovered by police but has no forensic scientific value.
She also gave evidence that the accused told her that “Kim had hit her head” but this appears to be after he had spoken to a police officer at the scene or Mr Kerr. There are other particular details of her evidence referred to in submissions of the accused’s counsel. The prosecution opened its case by referring to an admission allegedly made by the accused to Ms Herring, about which she gave no evidence. She was a somewhat distressed witness and not particularly impressive. There are reasons to believe she at relevant times was covering up not just for the accused.
Her account about going from a party in Narrabri after 10 o’clock to meet the accused to pick up the blue car was supported by her brother Mr Farrar, although he was not privy to many of the conversations and sheds little light on the extent of the communication between the accused and Ms Herring. He confirmed also that his half-sister drove the Commodore to near her parents place and he also confirmed that she wiped down the dust from the car including the front quarter panels and the sides of the car and the back quarter panels. He was driving a Nissan X Trail vehicle. He confirmed also that her step-father was very “pissed off” about Brittany driving unlicensed. He gave evidence that Brittany spoke to the accused twice, once when she picked up the car and again when they were returning the party they had left and the ambulance was at the site. He also confirmed that Brittany asked him when they had returned to the party to take her to the police station but he could not because he had been drinking. He had little recollection of the scene where the deceased was found other than seeing some people in that area and seeing a person lying on the ground. When the blue Commodore was in the paddock he said he saw “hand marks” and/or “slide marks”, but saw no damage to the car. He suggested a body impression on the boot but the extent to which his interpretation of what he saw was, or was not, infected with subsequent information was not explored or pressed. The Crown conceded in submissions that his observations of the state of the car were also consistent with activities of the deceased before he drove the car that evening described by the accused in his interviews with police.
Mrs Page and her husband confirmed their knowledge of the accused, the taking of the Commodore sedan to the paddock near their home and the arrival of their daughter with Mr Farrar driving a Nissan X Trail. She also confirmed her husband being very upset with Brittany driving the car.
She said that the accused arrived with police later on looking for his car, by which time she was aware that her husband had moved the motor vehicle to another location near the school down the street where it was recovered by police at a later time. It was common ground in the police evidence and the evidence of Mr and Mrs Page that Mr Page was quite hostile towards the police when they arrived but he ultimately showed them where the car was. He told the police that he was “trying to protect his daughter”.
Mr Page in his evidence confirmed these essential matters, the arrival of the Commodore driven by Brittany, abusing her for driving the car, later taking the car to another place. He said that when he drove the car to the primary school he wiped down the steering wheel to wipe off finger prints. As I understood his evidence he was endeavouring to wipe his own finger prints off the wheel because he was concerned that he would get into trouble having had some drinks on New Year’s Eve. Brittany told the father that she was driving the car because the accused was concerned that the deceased “was going to smash the car”. Although this is second hand hearsay, it is inconsistent with aspects of Brittany’s account

Police evidence

I have already referred to evidence from a police officer of the conversation had with the accused by telephone at 10.07. The first police message broadcast about any incident at Peele Street Narrabri was at 10.12 pm. It advised police of a domestic incident and that “Kim Barnes” had threatened the accused with a knife and he was waiting nearby. When police arrived the deceased was being treated by ambulance officers already and at that point her body had been moved because she was now lying face up “in the middle of the road” as it was described. There is no precise evidence as to exactly where the deceased was lying, which direction she was facing, or where she was in relation to particular markings on the road later identified in the exhibit B series of photographs. There is a blood stain on one part of the bitumen, which when seen in long shot has next to it a number of items of “resuscitation” commonly used by ambulance staff. One photograph in Exhibit B (B 9) displayed not only the stain but what appeared to be human hair in it as I understand the evidence. Although there is no photograph or diagram to confirm this I understand the deceased was found close to, possibly on, the blood stain. I could draw no safe conclusion as to the direction in which she was facing, what position her body was in or anything of the sort after she first hit the ground and come to rest. But she was seen by a police officer facing in a “southerly” direction, the direction towards which the accused drove . The first civilian to see her saw her face down, but later observations, as I said, showed her moved to be face up. I have seen a video of the area, Peele Street is a wide street, with a bitumen central surface and apparently wide gravel verge and then grass to respective property lines.
The accused when he first spoke to the police was asked “What has happened, it looks like Kim has been run over”. The accused said, “I had an argument with Kim and I walked away. I phoned my friend Brittany Herring to come and get my car”.
Over the telephone the accused rang Brittany Herring in the presence of the police officer and the police officer spoke to her using the accused’s phone. She confirmed the accused had phoned her and that she had come to get the car. When asked by the police officer where the car was she said, “I don’t know where it is, they got their friend Craig to drive it”. She described Craig as a person who lived with her parents. The accused was cooperative and went with the police to Michael Page’s place, but Mr Page told the police to “fuck off” and said that he did not know where “Craig” was. Constable Barnes who had these first dealings with the accused said, “He did not appear to be affected by intoxicating liquor … his actions appeared normal at the time, he was talk active (sic) and friendly”. Constable Kirk produced a log setting out key times, including the setting up of a crime scene at 3.19 am (when the accused was at the police station) as a result of which a crime scene officer took various photographs which are in evidence and videoed ultimately the site. The photographs were taken in darkness and in early morning light. The video recording of the scene (Exhibit F) is taken in early daylight. Exhibit C is a scale plan. It shows the driveway of 81 Peele Street to be approximately 14 metres from the building alignment. The blue Commodore was parked in front of or in the carport apparently. The accused is alleged to have reversed into Peele Street swinging the rear towards the nearby dead-end. Tyre marks in the driveway are not measured. On Peele Street there are various tyre marks but only two appear clearly related (Numbered 1-3 and 2-4). 1-3 is 20 metres long (on the near or passenger’s side of the vehicle), 2-4 (on the driver’s side) is approximately 11 metres long. These positions assume the movement of the vehicle away from 81 Peele Street in a south (westerly) direction. They both start in loose gravel. They could be from the same vehicle. Other tyre marks near the position of the blood stain or leading up to it are not in alignment with 1-3, 2-4 and there is no opinion or other observational evidence that explain them. They may be entirely unrelated. The blood stain (shown in B8, B9) is approximately 31 metres from the commencement of the tyre marks 1 and 2. The blood stain, relying on the scale, is approximately 61 metres or more from where the Commodore commenced its journey, making allowance for the arc of reversing (if indeed shown by the tyre marks).
Another police officer saw the deceased still alive at this time lying on the ground “facing a southerly direction and her feet a northerly direction”, but by this time she was being treated by paramedics. This would place her body facing ‘roughly’ in the direction of the movement of the accused’s car, as the street appears to run in a SW/NE direction.
That police officer spoke to the accused, who confirmed that police had been called in relation to a “domestic argument which also involves a knife” and that he was “involved in the domestic argument with a lady”. The accused was examined on his fists and palms and there were no obvious injuries on his hands. There is no evidence of injury to the deceased by physically striking her.
That officer, Constable Hinshelwood, examined the scene and saw various skid marks, reflected in the schematic plan drawn to scale by the Crime Scene Officer. He also observed a number of gold colour dollar coins scattered in the bitumen road surface “(near to) where Kim Barnes had been lying”. The location of various coins is shown in Exhibit C, although his record was that the coins included 20 cent coins. Ultimately, not a great deal turns upon this given the original observation of the coins was in darkness with the aid of torch. The coins are consistent with falling from the deceased’s person but in the majority stretch out away from where her body was found, in the direction of the car’s movement.
Another constable who arrived at the scene spoke to the accused, and when asked “What happened?”, the accused said:
“We were at the Namoi Hotel for drinks and walked to the Tourist Hotel Kim and I had an argument at the pub. I left and walked home. About 10 pm Kim came home in a taxi and started yelling abuse at me about sleeping with other people. I packed up some of my things and put them into my car. She threatened me with a knife. I left and walked down the street. I called a friend to come and pick up my car”.
It was this version in part that the accused texted to Brittany after she had retrieved the accused’s car and left it at her parent’s place, as shown in Exhibit J6.
When asked where the car was he said it was at “13 Peele Street”. When asked why the deceased was bleeding he said “I’m not sure. Maybe she thought it was me in the car and tried to stop the car from leaving”. The accused told this police officer, Constable Davies, that he had had a “few” drinks of alcohol but she was “very intoxicated”. Constable Davies was present when the accused and Senior Constable Kirk went to see Michael Page, the accused saying at that address that he thought the car had been brought there. Later on she was present when Michael Page showed police where the blue Commodore was, explaining that he had driven it back of the school because he “didn’t want my daughter getting into trouble”. The accused voluntarily went to the Police Station and was interviewed by police by electronic interview in the early hours of 1 January (Exhibit K). He was interviewed again in a much lengthier interview on 3 January at the township of Warialda (Exhibit L). I will deal with other conduct of the accused reflected in Exhibit J6 in the further consideration of the matter.
During the first interview the accused is coherent, straight forward, immediately responsive to questions, stating that he was “sober”. He was apparently so, not seemingly affected at all be alcohol at that point. At one point one of the officers said he was asleep in the waiting room or the interview room prior to the interview, but this was consistent with the hour and no doubt the fact that he was waiting for police to speak to him. It was clearly indicated to him he did not have to remain in the police station unless he wished and his involvement was entirely voluntary.
Before the conduct of the electronic interview on 1 January the accused gave a general outline of what had happened to Detective Beddoes, who later conducted the first electronic interview which in general terms; outlined the argument with the deceased at her home, he deciding to leave the home later because of her attitude, she producing a knife, walking away from the location and asking a friend to pick up his car. That friend was “Craig”. During all this time, of course, the deceased was being treated at Narrabri Hospital. She was then airlifted to Sydney where she subsequently died from her injuries in the early evening of 1 January 2013.

Interviews with the accused

The accused as earlier mentioned gave two electronic interviews to the police, one at 3.22 am on 1 January 2013 conducted at the Narrabri Police Station and a second lengthier interview on 3 January 2013 at the Warialda Police Station. There was evidence in the trial that the accused’s sister lived at Warialda.
He gave an account in the first interview being with the deceased throughout the afternoon of New Year’s Eve drinking some beers, walking home from downtown Narrabri to the deceased’s home and the deceased arriving approximately 20 minutes later in a taxi cab, telling him that she “fuckin’ hated (him)”, him packing up to leave, she behaving erratically and at one point, when moving one of the cars, threatening him with a knife and threatening to kill him, then, when he finally got into the blue Commodore to drive away she hitting the car and otherwise trying to prevent him leaving.
He said in respect of his driving of the vehicle that the last time he saw her she was in the driveway of the house, at one point “walkin’ up the driveway as I was spinnin’ off” (Q 36). During this interview he was asked about the disposal of the Commodore, admitting that he asked Brittany, the daughter of his “mate” to take her car, but he denied asking her to “burn the car”.
He said “If you burn the car that proves that I am guilty. I don’t wanna burn the car, because if youse look at the car, cause I’m accused of running her over and you will see if my car is that low and you look at the front, you can possibly say, well, he couldn’t possibly run over her because it is that low … it would have dragged her and, up the road whatever, so why would I say I want to burn the car” (Q 173 – 174). This sentiment was reflected in earlier (private) SMS messages to Brittany.
At one point he said with considerable feeling when asked about burning the car after a pause, “I love that car” (Q 168). He said that the only damage he was aware of was some damage to the “back spoiler”, which he believed had been aggravated by the deceased striking his car.
He said the deceased was “well and truly intoxicated”. He described her at various points “jumping on the bonnet, sitting on the bonnet, sitting on the boot, sitting on whatever” (Q 196). He said as far as his reversing was concerned:
“(I) took off hundred mile an hour spun the wheels. Like, I know she was drunk and whatever but she would have to be quick to run there and jump on the back of the car, cause like I was doing like 50 mile an hour out that driveway. That’s just a figure of speech” (Q 196).
In the second interview he said (at Q131-139):
“Well last time I saw her it happened that quick … She was there (indicating) and I’ve reversed out the driveway with me head over me shoulder and then I drove off. The last time honestly I seen her sitting in the, I don’t know, I can’t recall if she’s ran up beside me or what. But last time I seen her she was sitting in the driveway. (Q. Sitting …?) or standing in the driveway … (which is ) 50 or 60 feet (long) … I wouldn’t say (I reversed) at normal speed, but I was reversing pretty quick. (Q. Did you take off immediately after reversing?) Pretty much so, yes, by the time I stopped and put it in drive I just planted me foot … spun the wheels … (the driveway) is gravel … the wheels were spinning (to start off) on the gravel.”
He said inter alia in the first interview:
“I swear black and blue she was still in the driveway. She was jumpin’ all over the car when I was in it” (Q 195) and “I had just come out straight away, locked it in drive and just planted the foot and she’s still in the driveway”.
He said in answer to Q 200, “Like, if she did get on the back of the car, like, I swear that she was in the driveway, but if she did I did not know, but I am telling you, I am like, I know the mind plays silly things (sic) in adrenaline but I am positive she was in the driveway when I was drivin’ (sic)”
In the second, lengthier, interview the accused reiterated the account he gave by and large to police in the earlier interview, giving more details about his movements earlier in the night, who he saw in town at the hotels and when he returned home. He gave specifics of allegations made against him by the deceased concerning having affairs with various people which allegations I take to be untrue. No attempt was made to lead evidence from relevant witnesses, particularly Brittany and Ms Page that the allegations were true. He gave more detailed evidence of moving his white ute, and then driving away in the blue vehicle. He described in detail what the deceased had said to him, and the attempts she made to stop him driving away in the Commodore. He said that he “thought” she had the knife and was threatening him as he walked back to get in the Commodore. He said that she was “punching the car” and that he locked himself in the car because he did not want anything bad to happen (Q 94). He gave details of her oscillating moods (Q 114), and said that whilst he thought it was a knife it could have been a screwdriver, he saw the “shine” which was “silver” (Q 115). He explained the pre-existing damage to the spoiler (Q 116-117).
In that interview he described (at Q 128) how at one point she was at the front of the car whilst he was in the Commodore and he said, “I’ve thought, yes, now (is) me chance (sic). And I started the car up, looked over my shoulder like that reversed out the driveway. Put my foot down spun the wheels drove up”. Then he described about how he drove the car to the point where he said he subsequently met Brittany, near the corner of Clarke Street and Peele Street (Q 128). I have earlier referred to Q 131-139.
He said in answer to Q 141: “ … ‘cause I just like, planted it. I’m out of here like, the adrenaline was pumping. Its all I was thinking was I better get out of here or she’s going to kill me … I didn’t look back, I, I didn’t look. (Q Did you look up the driveway as you drove away?) No, I was concentrating on driving out of there”. He drew a plan of the movement of the car which is exhibit L 2.

He agreed that he had driven the car to Brittany, and confirmed the police account of the visit to Michael Page to recover his car. He gave confirmatory details of where he last saw the deceased as he was driving out the driveway (at Q 195 – 198) saying “(T)he last time I seen her she was in the driveway”.
He said that he remembered things “clearly” and the only “blurry spots” was when he was trying to get out of there to “save me life”. He said the deceased was “just psycho that’s what I thought I got to get out of there while I can” (Q 214, 219).
Some matters arising from Brittany’s statement were put to him. Some he agreed with, some he denied. He confirmed she was concerned about not having a driver’s license (Q 238 – 239). He said in fact in relation to various text messages that were exchanged that he was told by Brittany that “Dad and Craig are going to burn the car” and he said in reply “No don’t burn it drop it off down the police station and they’ll have a look”. In cross examination of Brittany she confirmed that she received a message that the car should be taken to the police station, which is shown in Exhibit J6. Although no “message” was received by him, he did send two messages to Brittany while with the police and before being interviewed about giving the car to the police intact.
The police put to the accused that the accused had driven the car spinning the wheels when the deceased was “on the vehicle”.
He said:
“I honestly did not (know). Last I seen her she was in front of me when I was reversing out the driveway. Like, if she was on the boot I would have stopped for sure and that is certain. I would not have drove away like the way I did if she was on the boot. Yeh we had our arguments but I loved her … I did not know she was on the boot. If she was on the boot and I’d seen her fall off I would have stopped then and there. But I admittedly I didn’t look in the rear view as I drove away but I did not know if she was on the boot. The last time I seen her she was in the driveway and that is the god’s truth” (Q 265).
He denied that he asked anyone to wash down his car, but said the deceased had been “jumping all over the car” (Q 272 – 276). He said that perhaps Brittany had wiped down the car to remove her own fingerprints. He was closely questioned about the character of his altercation with the deceased before he drove away. As the case was conducted nothing has turned upon matters raised with the accused in that aspect of the interview. The reasons for the accused leaving and the threat of violence to him by the deceased have no bearing upon the objective assessment of his driving, other than providing a reason for driving the way he did. No issue of “necessity” was raised by the defence.
He did say, however, in answer to a particular question: “Well youz are saying that she did (fall off the car). I assume that she chased after me up the driveway and fell over. I, that’s what I’m saying, I don’t know exactly what happened”. When it was squarely put to him that she had fallen off the car at Q 332, he said, “I didn’t see it, it didn’t. I don’t know if she did. But, yeh you say she did so she did. But that’s the only way that I can assume that she got those injuries was falling”.
He was also asked some questions about phone records available to the police which involved some suggestions that did not reflect the reality of the length of those calls. He had seen the deceased lying on the ground with the neighbour Bob Kerr. He like Mr Kerr said that she was face down. When police put to him propositions regarding she being seen at one stage sitting on the boot with her feet dangling over he said, “It’s like, when you mentioned it … say that she was sitting on the back of the car with her legs hanging over the boot. If I was to drive off and she fell off wouldn’t she fall and her head, her feet would be facing the direction I drove off. That’s, so um, whether the witnesses say seen her sitting on the boot, yes but I can’t say. Can’t see how she would fall and land face plant in the direction I drove if she was sitting backwards” (Q 386). Although this answer was not the subject of any comment in the case, it suggests the accused, when he first saw the deceased on the ground, saw her lying facing in the direction in which he had driven. At that point the accused said he wished to speak to a solicitor but to all intents and purposes the subject matter of the interview had been exhausted.

Post mortem examination

The deceased was declared 'brain dead' in the early evening of 1 January and a post mortem examination was conducted on her at 9.15 am on 3 January 2013.
Blood samples had been taken ante-mortem (shortly before midnight) showing a blood alcohol reading at that time of 0.170 grams per hundred millilitres of blood, but no detection of other drugs including amphetamines, benzodiazepines, cannabis, cocaine, opiates and a range of other possible drugs. This screening test for other drugs, however, subject to the qualification that the screen was “to detect toxic levels of poisons” and minor drug levels nor all specimens had been tested.
The most significant injuries of which the doctor reported were laceration and abrasions of the face, fracturing of the anterior and middle cranial fossae of the base of the skull and fracturing of the facial bones with limited subdural bleeding. The brain showed multiple contusions predominantly on the left and there was pronounced brain swelling. There were multiple rib fractures on the right and extensive grazing involving the front of the trunk, both forearms and knees. The injuries are not typical of an impact of a standing pedestrian with a moving vehicle and it was said in the report that it was possible that the deceased’s alcohol intoxication may have contributed to the events and likely also caused instability and slowed reflexes.
The relevant pathology summary was:
(1)Multiple blunt force injury consistent with fall forwards to the ground.
(2)Extensive base of skull fracturing.
(3)Various forms of neuropathology.
(4)Multiple rib fractures on the right.
(5)Fracture of clavicle on the right.
(6)….
(7)…. alcohol intoxication.
There had been organ donation before the autopsy. The report contains considerable detail of the site of injuries to head and neck, trunk, left and right upper extremities, left and right lower extremities. There was no histology reflecting existing pathology. There was extensive reporting on macroscopic examination of the brain as well as microscopic examination of the brain.
The Doctor was shown Exhibit B in his evidence in chief, particularly photographs 8 and 9 showing a blood stain on the roadway, B9 showing “human (?) hair” attached to the staining. He said it did not necessarily depict the point of impact of the deceased with the road, rather where blood from the face would have been deposited on the road.
He said he was not aware of a point of impact, could not say where the body had been at any given time however, the grazing of the face reflected movement of the face along the surface of the road, the distance he conceded in cross examination he could not say. In cross examination he said the movement of the body would have included movement through the air which, of course, cannot be reflected in the interpretation of the injuries and the distance of that was a matter of speculation.
With regard to injuries on the face, referring to his figurative drawings in exhibit M 1, injuries numbered 2, 4, 6 and 8 all have a degree of directionality reflecting movement of the head. But whether the movement was from the top of the head to bottom of the head against a surface, or the bottom of the head to the top of the head he could not say. He said it was consistent, however, with falling forwards to the ground. He said that the bitumen tarmac could have caused these injuries.
He noted the fracture to the right clavicle could be the result of falling with an outstretched arm, but this was just one mechanism of multiple mechanisms to cause that injury. He noted injuries to the palmer surface of the hands consistent with the hands being outstretched.
He said the fractures of the ribs could be caused by two possibilities, a blow to that part of the body when stationary or moving by a moving object or the body moving and striking a stationary object.
Two scenarios were raised with the Crown. One suggesting the deceased seated on the back of the vehicle and falling “off the back” as the motor vehicle moved forward.
“A. Um, they could be. The vehicle would certainly have to accelerate I think. I think a fall off the car without movement of the vehicle would be extremely unlikely to cause these injuries both in the nature of the grazing type injuries and then the severity of the internal injuries, but if this occurred while the vehicle was moving at some speed, and I can't tell you what that speed would be, even as a broad estimate, then, yes, it could cause those injuries.” (p146/27 – 32)
He was asked if the injuries were consistent with the deceased after it had backed out of the driveway and when it stopped and then accelerates “and (she) is running behind or the acceleration of the car brings her forward and she falls”:
“A. It could. Again, I think it would have to be at some reasonable speed as a minimum. I don't think that an average running speed would be sufficient to cause these injuries and I think one of the problems is that there is no real indication of the body being dragged for a distance. Certainly the feet don't show dragging type marks. That is not to say, of course, that there wasn't. I didn't see the shoes, as an example, if there were shoes.” (p146/39-44).
He was asked in cross examination:
“Q. Can I just ask you, in relation to the first scenario where I think the Crown has put to you that the deceased was seated on the back of the car and as the car has accelerated off fallen off and had an impact with the roadway, would you not expect in that scenario that the first impact of the body would be likely to be the feet?
A. I don't know. I mean, I think it's possible that there could have been a fall over forwards (indicates) ‑‑
A. If the deceased falls forward, there is every possibility I think that you would land forwards first with your feet following. I am certainly not excluding the possibility that the feet landed on the ground first and there was some tumbling motion as well. For that matter, it could have been in a slight sideways motion as well, that's entirely possible, but I don't think that landing on feet would be necessarily a view that I would prefer over any other.
HIS HONOUR
Q. The problem is you didn't see the shoes?
A. No, well, that's that added problem as well.
Q. You mentioned that as a qualification or issue?
A. Yes.” (p149/8-14, 29-42)
He was unable to indicate which of the two scenarios was more likely, he did not see the shoes that would give some indication of whether the feet had stuck the ground first or not. There were no “dragging” injuries to the feet. His views were expressed in terms of possibilities, likelihoods or not. He said he could not estimate, even as a “broad estimate”, what speed of movement could cause the injuries.
With regard to the blood alcohol level he pointed out that it would contribute because it would slow reflexes, people who are intoxicated get into “compromising” situations. So far as the significance of the blood pooling was concerned, he believed that it represented where the body come to rest, but could not say what distance the body had travelled along the ground to that place and need not have been the point of impact. He could not estimate how far the body may have been airborne before impact with the road.
So far as falling off the car facing in the direction in which the car was travelling, he could not say whether that was more likely. He described the movement of the body as involving a number of “complex” movements.
The Detective-in-Charge (Detective Clinton Oxenbridge) observed the vehicle on examination in “good condition” and “reasonably clean”. He, “did not observe any obvious damage to the vehicle apart from some cracks on the rear spoiler which appeared to be stress cracks. The spoiler fillings also appeared to be loose.” There was other evidence that the vehicle was mechanically sound with no defect of the vehicle found to have contributed to the events causing the death of the deceased. There are a number of photographs of the vehicle taken showing areas of “fluorescence” on the vehicle and other markings, including fingerprint marks but nothing apparently emerges from this. Nothing was said about the matter in submissions
It was found on inspection that the rear driver’s tyre was under inflated to “22 psi”. (I assume for what it is worth “normal” pressure would be in the range of 32-36 psi). The accused was interviewed by this detective at Warialda. The accused prepared a plan, as he had during the first interview, which accorded with the general physical evidence. During that interview he had described the deceased at one stage removing air from a rear tyre to try and stop him from leaving.

Outline of the submissions of the parties

Crown submissions

The Crown’s submissions were succinct. It submitted by reference to the interviews given by the accused there was no dispute that he was driving the motor vehicle. It submitted in relation to driving in a manner dangerous that the combination of the movement of the vehicle as admitted by the accused in his interviews and his awareness of a person on the boot of the car at that time constituted, if established, driving in a manner dangerous.
With regard to issue of “impact” it was submitted by reference to s 52A(5)(g) that the Crown case was that the impact was caused by the deceased falling from the vehicle and relied upon the evidence of Dr Duflou, the details of the autopsy report and the physical evidence, particularly the photographs and the plan of the site to support that proposition.
With regard to the scenario of “falling” from the vehicle the Crown particularly took the Court to Dr Duflou’s evidence at p146/27 ff (quoted above), in combination with the observations of Mr Kerr of seeing the deceased sitting on the rear of the vehicle, before the vehicle was moved.
The Crown acknowledged that there were no eye witnesses and even with the benefit of Dr Duflou’s evidence and the physical evidence there were “gaps” in the evidence.
With regard to other possibilities such as her jumping on the back of the car, the Court would bear in mind that he had reversed at speed and then driven off at speed.
Ultimately, by reference to the scenarios put to Dr Duflou and the evidence he gave (particularly at p146-147) the Court would be satisfied beyond reasonable doubt that the impact as particularised by the Crown caused the death of the deceased. The driving in a manner dangerous as alleged by the Crown was a serious breach of the proper control of the vehicle. The Crown said directly that to accelerate harshly with a person on the boot of the vehicle objectively was driving in a manner dangerous. However, it was conceded that apart from Mr Rob Kerr’s observation it was “speculation” as to how where the deceased was positioned in relation to the car as there were “gaps” in the evidence.
It was conceded by the Crown that the accused had said at various points in his interviews that he was not aware of the deceased being on the boot. This it was submitted raised the issue of honest and reasonable mistake of fact. The accused it was conceded had met the relevant “evidentiary burden”. This issue, as the case had been conducted, was acknowledged by the Crown to turn upon the issue of whether the accused was aware, or reasonably ought to have been aware, that the deceased was on the boot.
The Crown accepted that it had to disprove this aspect. It submitted the arguments that were against the position of the defence were as follows: Firstly, as to the accused’s honesty in his belief, the Crown’s relied upon Brittany Herring (and Mr Farrar’s evidence in support), being asked to wipe down the car and in fact doing that. Further, the account the witness had given about the circumstances in which she was given the key to the car to drive away, the phone records and the chronology of events from the police statements concerning their arrival at the scene, were consistent with the accused not having an honest belief in facts that would make his actions innocent. The claim by Ms Herring of being asked to wipe down the car was confirmed by the evidence of Mr Farrar and his observation of her wiping down the car.
Further, there were the lies he told about who was the driver of the car endeavouring to suggest someone else had driven the car and being asked to wipe down all the car was not consistent with her simply wiping off her finger prints.
In relation to the other “limb”, as it was described, of this issue concerning the “reasonableness” of the accused’s belief, the Crown pointed to his admitted driving of the motor vehicle and reversing up the driveway, and then driving off at some speed from outside the house in Peele Street, in circumstances where the deceased was acting “irrationally”. Amongst other things it was argued by the Crown he ought to have taken reasonable steps to ensure that she was not in any way connected to the car or able to climb onto the car. Particularly the Crown referred to the fact that he did not check his rear vision mirror as he drove down Peele Street although he had said looked to the rear of the car as he reversed the car.
The Crown conceded there were gaps in the evidence as to the circumstances of the driving of the accused, conceding amongst other things that the physical appearance of the car, the damage to the spoiler, for example, was explained by the accused in his interview.
It was conceded by the Crown that there was some support for his version of events both from the observations of civilian witnesses and the observations of police, particularly in relation to the irrational conduct of the deceased and other surrounding circumstances.
Ultimately, it was submitted that the injuries were consistent with the deceased falling from the car, although it was conceded that the observations of Mr Farrar of the markings on the car were consistent with the deceased having climbed onto the car in the manner as described by the accused, not necessarily falling from or off the car as the Crown submitted was the case.

Defence submissions

Ms Kluss submitted that the issues in the trial were directed at:
i. the nature of the impact,
ii. whether the accused was driving in a manner dangerous
iii. the issue of honest and reasonable mistake of fact in relation to this last aspect.
With regard to the nature of the impact it was submitted that the evidence, does not disclose clearly precisely the mechanism by which the deceased was injured and that various scenarios that were raised with Dr Duflou were speculative. His evidence was heavily guarded and could not make any conclusions of substance with certainty.
With regard to driving in a manner dangerous one would need to have regard to the time of day of the driving, the width of the road, the fact that it was night time, the fact that the car was driven at a dead end of a street, no other cars on the road, the fact that the accused last saw the deceased standing in front of the motor vehicle, but certainly not in the way of the car and the precautions the accused took. He acted reasonably when reversing and had no need to check his rear vision mirror as he drove off having regard to all relevant circumstances.
Submissions were made about Dr Duflou’s evidence and particularly his characterisation of the movement of the hands of the deceased falling forward not being consistent with the deceased sitting on the rear of the car as it moved away. Ultimately the mechanism for causing the injuries of the deceased was a matter for speculation.

The issue of honest and reasonable belief was concerned with the manner of driving of the vehicle and it was submitted that both at the time of the driving and immediately afterwards the accused did not know that the deceased had had any contact with the car.
The proven conduct of the accused showed that he had not wanted any confrontation with the deceased, there was no doubt that he walked home from the hotels to avoid dispute, it was the deceased who argued with him when she arrived home, he did not fight back when she was aggressive towards him, there was nothing about his manner that indicated any antipathy towards her.
It was submitted that his conduct from the time the police arrived and he was in their presence was entirely consistent with an innocent state of mind, he voluntarily remained with them and was interviewed.
With regard to the issue of the significance of any “lies” and other conduct one would need to consider the chronology of events, his account of relevant events supported by a number of witnesses including Mr Kerr senior, his son Shaun, the chronology of phone calls.
It was submitted that the Court could not be satisfied the accused asked Ms Herring to wipe down the car. In any event the evidence showed the accused was not aware as to what had happened. Such lies as he told the police were to be considered in the context of his cooperation with the police, and later messages on New Year’s Eve to Ms Herring requesting the production of the car and telling her that the car was not to be damaged.
In fact his first interview with the police on the morning of 1 January included confirmation by him of subsequent investigations by the police concerning what messages he had sent including his assertion that he had told Ms Herring to drop the car off at the Police Station and not to burn it, denying that he had asked her to do that.
With regard to the “consciousness of guilt” evidence, not only was it not necessarily consistent with him having what at law was “consciousness of guilt” as to the circumstances in which the deceased had been injured, but he had other reasons to distance himself from the vehicle including the fact that he had self admitted drinking alcohol himself.
So far as his interviews were concerned many of the matters that he raised with the police were confirmed by independent evidence. These included ceasing contact with the deceased at the hotel to walk home, speaking to the sons about what had happened, the intoxication of the deceased, her irrationality, moving his work car before he moved the blue car, his SMS messages to Ms Herring, calling the police about what had earlier happened and other matters. His versions in his interviews were consistent with him honestly and reasonably believing that the deceased was not connected to the car in any way. The prosecution had not proven that this was not the situation.
Matters raised with the counsel for the accused about the alleged lies made were answered by seeking to put the untruths in a particular context, including submissions made that text messages to Ms Herring suggesting a false account to be given to the police concerning the driving of the car were directed at protecting her rather than himself.

Consideration

The accused’s admissions, the post-mortem evidence and related opinion evidence and opinions, the physical evidence of the scene, including police observations of the deceased’s driveway and that section of Peele Street from outside 81 Peele Street towards the intersection of Clarke Street where the Commodore was driven by the accused, the photographs, video and plans of those areas and some civilian evidence establish beyond reasonable doubt that the accused at relevant times was driving the motor vehicle and that in some way it and the deceased came in contact with each other, causing her ultimately to fall to the ground and occasioning the injuries that directly contributed to her death.
I am not satisfied beyond reasonable doubt that prosecution has established that the deceased was sitting on boot of the car or elsewhere on the rear of the car, as the accused was reversing up the driveway. This in my view is most unlikely. None of the physical evidence, including the distance the deceased was found from where the car started reversing, supports this proposition reasonably. I am satisfied positively that the accused reversed in circumstances where she was neither on the car, nor behind the car nor in any position of immediate danger. I do not accept she was hanging onto the vehicle at that point.
It is clear that the deceased was heavily intoxicated, erratic and irrational and did not want the accused to leave her premises. Before he commenced reversing the vehicle she had tried to stop him leaving in a range of ways, including threatening to let down a rear tyre which she had partially done.
In assessing his departure from the driveway to Peele Street and then his driving along Peele Street. I note that at that time it was dark, there would appear to be no other traffic on the road (which would have been easily seen), the area of Peele Street in which this driving occurred had no pedestrians, other than at one point the deceased whose positioning on the road cannot be identified, the section of road into which the accused reversed was at a “dead-end” of the street and alcohol has not been shown to be a factor in the driving of the accused. The accused had checked the rear of his car as he reversed and the accused could not reasonably expect someone to jump onto his car as he manoeuvred the vehicle forward along Peele Street.
The accused explained in the interview that he reversed at some speed, causing pronounced tyre marks at least at the commencement of the reversing manoeuvre and then stopped the vehicle in Peele Street facing in a roughly south-westerly direction towards the intersection of Clarke Street and then drove off at some initial speed, at least, leaving tyre marks in the loose gravel on the street. I have quoted the detail of his account of the driving given in his two electronic interviews. His account of his movement of the vehicle accords with the physical evidence.
Both the prosecution and the defence can only point to various possibilities as to the mechanics of the cause of injuries suffered by the deceased. Other than she had a heavy fall striking her skull, moving at more than normal running speed causing longitudinal injuries either from foot to head or from head to foot, including injuries to her clavicle and hands consistent with endeavouring to break her fall, nothing else is particularly clearly shown. There is no reliable evidence as to how those injuries occurred, other than that it was not caused by the accused car striking the deceased head on or by direct collision with the vehicle. The injuries to the right chest and ribs remain unexplained to some extent.
Generally speaking, either when moving she came into contact with a stationary or moving surface or while stationary she came into contact with a moving object.
It is a reasonable possibility that the deceased at one point, unbeknownst to the accused and unseen by the accused, grabbed hold of the rear spoiler as the accused drove off and she was pulled or propelled forward striking the ground, or that she was in contact with the rear of the vehicle, or the side of the vehicle towards the rear causing her to be propelled to the ground. I note no relevant ‘impact’ damage to the vehicle. The Crown’s scenario to support particulars of the driving manner dangerous is based upon drawing an inference as to the position of the deceased on the rear of the car from the last independent sighting of her. Sitting on the rear of the vehicle before it started reversing provides the least likely explanation as to why she was found in the middle of Peele Street, over 30 metres from the entrance to her driveway, a considerable distance from where the vehicle exited the driveway. It would be more likely she would have fallen off while the car was reversing or when it suddenly stopped. There are no drag marks in the driveway or on the road. How she got to the position at which she appeared at rest involves a number of other reasonable possibilities, including actions by her unbeknown to the accused in her intoxicated erratic state.
One of the issues critical to the determination of the verdict is that the totality of the evidence is unable to establish beyond reasonable doubt a particular circumstance in which the deceased came in contact either with the car or the road.
The accused in terms of his account of his driving of a motor vehicle gave generally consistent accounts in the two interviews. Various aspects of the version that he gave to police in the electronic interviews are confirmed by a range of witnesses whose reliability is not in question. He described the deceased as being intoxicated, hysterical, variously angry and irrational all matters confirmed by a range of independent sources, including the deceased’s own sons. His accounts include reference to the movement of other cars before his own, confirmed by Shaun Kerr. His “admissions” as to his driving are direct and generally consistent. This is to be taken into account in considering his earlier lies and conduct attempting to distance himself from the relevant events.
None of the witnesses describe the accused as being aggressive towards the deceased beforehand (although one said he appeared angry at one point). In fact they confirm that the deceased was aggressive towards the accused. Police inspecting the accused’s hands and body saw no injuries consistent with any force used by him against the deceased. The accused described the deceased at one point starting to let down the tyre pressure in the tyre at the rear of the motor vehicle. This is confirmed by the physical examination of the motor vehicle. The accused specifically described the deceased as saying that she “fuckin hated (him).” This is confirmed from a number of sources. The accused described the deceased as striking the car with the hands telling him not to go, consistent, or at least not inconsistent, with what witnesses described as her conduct in the time leading up to the accused departure from the premises. Her actions may not have left any damage on the car before the accused started driving.
Although the accused admitted to drinking alcohol during the afternoon there is nothing in the evidence of the observation of the accused shortly after relevant events to suggest that he was in fact ostensibly affected by alcohol. Nor was it suggested that alcohol consumption on his part had any role to play. I notice that no attempt was made to breathalyse him or to take a blood sample from him in the evidence presented to this court. The issue was not raised in any real way in the electronic interviews.
Neither does the evidence establish that any conduct of the vehicle by the accused was directed at the deceased any way. There is no doubt on the totality of the evidence that the accused was anxious to get away from what he perceived to be a dangerous situation for himself created by and irrational person heavily intoxicated but as I earlier pointed out this aspect of the matter is not relevant to the objective assessment of the character of his driving.
The accused’s conduct immediately after the event was clearly designed by him to distance himself from the circumstance that he discovered, after the event, that the deceased was seriously injured. He told lies on a number of occasions to the police initially. He also asked Brittany Herring to “cover up” for him in a range of ways, wiping down the car and asking her to tell the police someone else had driven the car and a possible scenario as to how the deceased was injured. But in the context of the direction set out above in respect of “consciousness of guilt” ultimately I do not regard that body of evidence as evidence that can be taken into account in establishing his guilt of the particular offence that he is charged. Clearly, he realised after the event that he must have in some way caused severe injury to the deceased having seen her lying on the road. He initially sought to distance himself from the driving of the vehicle knowing this but was unclear as to how that had happened. His lack of knowledge of what had happened is not only explicit in the account he gave in the first electronic interview and subsequently, but is consistent with some contemporaneous statements made at the scene to Brittney Herring and others. In a text message to Brittany Herring at 12.09 am on 1 January (after speaking to Police) he wrote “Yeah but they wanna look at me car they reckon I hit her so if they C the car they wik (sic) know I didn’t: This is consistent with the accused not knowing how the deceased was injured. Likewise his suggestions to Brittany in three text messages between 11.28 pm and 12.25 am that “Kim chased” the vehicle. In any event, within a short period of time afterwards, so far as driving the car was concerned he had admitted he was the driver. In my view he fully cooperated with the police at a critical time of the investigation and was entirely straight forward, materially supported in a number of respects by independent or objective evidence.
I do not accept the evidence of Brittney Herring that the accused told her to burn the car. I accept that he asked her to take the car to her parent’s place and may have asked her to wipe it down. This is consistent with an initial reaction without thinking things through when he realised the deceased was injured. In any event, he did not ask her to wipe down just the back of the car or any particular part of it. If he believed the car had struck the deceased in some way this is consistent with not knowing where that occurred. Of course, it may also be concerned with not bringing attention to any one part of the vehicle. These are competing explanations. As to burning the car I do not know where the suggestion came from. Judging from the reaction of Mr Page it may have come from him. But it is clear from the text messages sent by the accused that when the suggestion was obviously raised with him, he did not want the car burnt. In fact he wanted the car produced to the police for them to inspect it believing he had nothing to hide even though he was also at that point denying driving the car and suggesting to Ms Herring another version. A text message from Brittany at 12.42 pm told the accused that “Mum said they (were) not burning (the car)”. But they weren’t prepared to drive it to the “the cop shop”. This has a connotation that the suggestion came from the Pages.
Ultimately, there is no relevant damage to the car. There was some damage to the rear spoiler. In part, this was explained as a pre-existing matter. In any event it is as consistent with the deceased sitting on the rear of the car when the car was stationary as when it was moving. It could be consistent with grabbing onto the spoiler, already weakened by pre-existing damage to it while the car was moving. Mr Farrar saw markings in the dust on the car when it was parked in the paddock next to the Page’s home consistent with hand and slide marks, but again this is just as consistent with the deceased being on the car when it was stationary and getting off the vehicle at that time as purportedly sliding off the vehicle when it was moving.
The problem with the hypothesis that the deceased was sitting on the back of the car at the time that it reversed up the driveway is that if the sudden movement of the vehicle caused her fall it was likely she would have fallen off well before the position in which she was ultimately found. For her to fall off the rear of the vehicle as the accused began driving in Peele Street, having already reversed out of the driveway, given the position that she was found and giving due deference to the uncertainty of the conclusion of Dr Duflou as to the mechanism for causing the deceased’s various injuries, I have difficulty accepting as a fact (whether established beyond reasonable doubt or on balance) that in her intoxicated state she could have stayed on the boot of the car over the distance that the vehicle must have travelled before she would have fallen off. Further, there were no sounds heard consistent with her being carried for a distance on the car unwillingly, such as call to stop or screams. She certainly was not incapable of vocalising her views and opinions from the time she arrived back home from the hotel.
The state of the evidence is such that she may have fallen off the vehicle at some point having been seated upon it at a later time when it stopped Peele Street or she may have attempted to jump onto it grabbing onto the rear spoiler and then losing her grip as the car commenced to drive along Peele Street. The account of the accused does not exclude the deceased following the vehicle or anticipating its movement and grabbing at the spoiler as it moved forward in Peele Street. She may have even come into collision with part of the car, as it was moving forward Peele Street, causing her to sprawl to the ground forwards. The medical evidence does not give up any one explanation more likely than another. The probability is she fell in a “forwards” motion, but she might have fallen face forwards away from the moving vehicle. It would be difficult, but not impossible, to fall forwards if sitting on the rear facing away from the front of the vehicle.
Other aspects of the collateral conduct of the accused when and where he gave Ms Herring the car key, when and where he spoke to her and the like, referred to in passing in submissions are not matters of significance. Any specific chronology to be gleaned from civilian witnesses is necessarily vague or unsatisfactory in its precision.
In the context of considering the driving of the accused, the prosecution has not established beyond reasonable doubt that the accused did not have the relevant honest and reasonable belief that it was safe to drive as he did. In this regard it requires examination of all aspects the manner of driving of the accused including whether it is established at relevant times that the deceased was ‘on’ the car. I am not satisfied that the accused was aware or ought to have been aware she was on the car. Given I discount as a fact established or reasonably possible that the deceased sat on the rear of the car as it was reversed, and that it would have been difficult, almost impossible, to have had the time to sit on the rear of the car as it drove down Peele Street away from outside 81 Peele Street, I am not able to conclude beyond reasonable doubt she sat on the rear of the vehicle while it was moving. I cannot determine with any confidence any particular modus of the control of the vehicle contributing to her fatal injuries. There is not reasonable evidence of trying to “shake her off” the car. I have concluded that the accused’s account of what he did, supported by physical and other evidence, is at least reasonably possible and that it is at least (in that sense) honest, notwithstanding his early lies and other conduct. It was reasonable for him to continue driving up Peele Street without checking his rear view mirror before continuing to do so as he admitted. He said he was concentrating on what was in front of him as he drove which is consistent with proper management of the vehicle in all the circumstances. It was not reasonable for him to expect that she would in some way attach herself to the rear of the vehicle.
Ultimately, I am not satisfied beyond reasonable doubt that at prosecution has established that the accused drove in a manner dangerous and/or that relevant “impact”, as pleaded and particularised, has been established.
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[2015] NSWDC 94

10 June 2015

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Mens Rea & Intention

Negligence

Expert Evidence