R v Cullen - [2005] SASC 218

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CULLEN
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)
17 June 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - MOTOR VEHICLES
Appeal against conviction - appellant convicted by jury of causing death by dangerous driving - admissibility of expert evidence challenged on appeal - discussion of admissibility of expert evidence generally - consideration of factual basis of expert evidence - consideration of adequacy of summing up - appeal dismissed.
R v Bonython (1984) 38 SASR 45; Commissioner for Government and Transport v Adamcik (1961) 106 CLR 292; R v Abadom [1983] 1 WLR 126; H v Schering Chemical [1983] 1 WLR 143; Borowski v Quayle [1966] VR 382; PQ v Australian Red Cross Society [1992] 1 VR 19; R v Fazio (1997) 69 SASR 54; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; HG v The Queen (1999) 197 CLR 414; Ramsay v Watson (1961) 108 CLR 642; Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844, considered.

R v CULLEN
[2005] SASC 218
Court of Criminal Appeal Gray, Sulan and White JJ
GRAY and SULAN JJ

Following a trial in the District Court, Nicole Terri Cullen, the appellant, was convicted by jury verdict of the offence of causing death by dangerous driving. This is an appeal against that conviction.
Crown Case
The incident giving rise to the charge occurred on 23 April 2002 at or about 9.00pm in an outer Adelaide suburb. It was the Crown case that the appellant drove a red Ford motor vehicle in a manner which was dangerous to the public and thereby caused the death of a passenger in the vehicle, Clinton Robert Gillespie. As a result of a collision between the red Ford and a tree, Mr Gillespie was thrown from the vehicle and died from his injuries. Mr Gillespie was bald and had a beard.
The principal issue at trial was the identity of the driver of the vehicle. It was the Crown case that at the time of the incident the appellant was the driver and Mr Gillespie an unrestrained front seat passenger.
A number of witnesses observed the red Ford prior to the collision. Other witnesses attended at the scene shortly after the collision. The jury were asked to conclude from their evidence, from other circumstantial evidence and having regard to expert opinion evidence, that the appellant was the driver.
Samantha Tanner, a passenger in a vehicle overtaken by the red Ford shortly before the collision, observed a person with long “blond browny” shoulder-length hair to be the driver of the red Ford.
Ellen DeConno was a passenger in a vehicle which stopped next to the red Ford at traffic lights some distance before the collision. The driver of the red Ford waved at her. Ellen DeConno noted that the driver had shoulder-length light brown coloured hair. That driver was female. She appeared happy. She looked straight at Ellen DeConno. Melinda DeConno was the driver of the vehicle in which Ellen DeConno was a passenger. When her vehicle was stationary next to the red Ford at the traffic lights, she looked past Ellen DeConno and observed the driver of the red Ford. That driver waved. She said that the driver was a woman with shoulder-length blond hair. She noted that there were children in the back of the car.
Bronwyn Harvey, the driver of the vehicle in which Ms Tanner was a passenger, saw the collision and stopped her vehicle nearby. She ran straight to the driver’s door of the red Ford. Ms Harvey said that she was the first person at the scene. She observed a woman slumped forward in the driver’s seat. The woman had blond hair. The woman looked at her and then slumped again. Ms Harvey was “pretty sure” that the woman had a seat belt fitted and attached.
Ms Tanner attended the red Ford immediately following its collision with the tree. She observed a woman with long blond hair in the driver’s seat. She was sure that her seat belt was still attached. She observed a man at the scene attempt to remove the seat belt from the woman in the driver’s seat. She told the man not to do so because of the possibility of neck injuries.
Richard Ratley heard the sound of the collision and ran towards the scene from his home. He observed a woman in the driver’s seat of the red Ford. She had blood in her hair. He could not tell whether or not the seat belt was attached.
Roger Collins was the first emergency services officer at the scene. He observed a woman in the driver’s seat of the red Ford. He could not recall whether she had a seat belt attached.
Anthony Norman stopped at the scene on his way to work. He observed a woman in the driver’s seat of the red Ford.
Ronald Beveridge, who lived near the scene, said that he was the first person at the scene. He claimed that he saw a woman in the front passenger seat of the red Ford with a seat belt fitted. He gave evidence that sometime after he arrived at the vehicle this woman removed her seat belt, climbed into the driver’s seat and attempted to exit through the driver’s side door. Mr Beveridge agreed that he had only provided a statement to the police a few days before trial.
There was a body of evidence of observations made of the manner in which the red Ford was being driven prior to its collision with the tree. The vehicle was seen to accelerate rapidly, swerve from lane to lane and travel at an excessive speed. Witnesses estimated the speed of the red Ford at times to be excessive and as much as 160 kilometres per hour. Witnesses said that as the red Ford approached the collision site, it clipped another vehicle travelling in the same direction. The red Ford then travelled out of control into a paddock and collided with a tree. Mr Gillespie’s body was found out of the vehicle. It was evident that he had been thrown from the vehicle.
Evidence was led of the appellant’s blood alcohol reading. That reading was obtained when the appellant was taken to hospital for treatment in respect of injuries that she sustained in the collision. Having regard to average dissipation rates, her blood alcohol reading at the time of the collision was estimated to have been between 0.11 and 0.17.
The Crown led evidence of observations made at the scene by police officers, together with photographs and a plan. This evidence was not contentious. Expert evidence was led from Henry Aust, an engineer, addressing a number of topics including his opinions about the seat belts and about general accident reconstruction.
Defence Case
It was the defence case that it had not been established that the appellant was the driver of the red Ford. The appellant did not give evidence.
Hong Cullen, a passenger in the red Ford and the daughter of the appellant, gave evidence that the appellant was in the front passenger seat wearing her seat belt at all times. She said that Mr Gillespie was the driver and that he was not wearing a seat belt.
Defence counsel did not challenge Mr Aust’s expertise. However, it was contended that his opinion evidence concerning accident reconstruction was speculative and not founded on an adequate factual basis. Counsel also challenged his opinion evidence concerning the driver’s seat belt and his opinion that Mr Gillespie was the driver. It was said that the factual foundation underlying those opinions had not been established.
The Appeal
Counsel for the appellant submitted that the trial judge erred in not withdrawing the opinion evidence of Mr Aust from the jury on the ground that it was inadmissible or alternatively as a matter of discretion. It was said that the foundation facts to support the opinions of Mr Aust about the driver’s seat belt and about who was the driver of the red Ford had not been established by the evidence. It was contended that the basis of the challenge did not become apparent until the close of the Crown case. It was further contended that Mr Aust’s opinion as to the speed of the vehicle and generally as to his reconstruction of the events was too speculative to be of any weight.
Counsel for the appellant contended that as a result there was a risk of a miscarriage of justice. It was said that the verdict should be set aside and a verdict of acquittal entered. Alternatively there should have been an order for a retrial.
Expert Evidence
For expert opinion evidence to be admissible, it must first be established that the subject matter of the opinion falls within that category of subject in respect of which expert evidence is admissible. This gives rise to the following questions:
-whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment without the assistance of witnesses possessing specialised knowledge and experience in the area.
-whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience a special acquaintance with which by the witness would render his or her opinion of assistance to the court.
-whether the witness has acquired by study or experience sufficient knowledge of the subject to render his or her opinions of value in resolving the issues before the court.
If these questions are satisfied, the evidence of the expert is admissible and the witness is entitled to express opinions.[1]
[1] R v Bonython (1984) 38 SASR 45 at 46. When it is established that the witness is an expert in a relevant field of knowledge, they are permitted to express their opinions however unconvincing they might appear to be: Commissioner for Government and Transport v Adamcik (1961) 106 CLR 292. Once a witness is duly qualified, the witness is entitled to draw on material (including unpublished work and work from others in his field) as part of the witness’ process in arriving at conclusions, provided the work is clearly identified to enable its cogency to be tested: R v Abadom [1983] 1 WLR 126; H v Schering Chemical [1983] 1 WLR 143; Borowski v Quayle [1966] VR 382; PQ v Australian Red Cross Society [1992] 1 VR 19; R v Fazio (1997) 69 SASR 54.
In Makita (Australia) Pty Ltd v Sprowles,[2] Heydon JA extensively reviewed the authorities concerning expert evidence. Having referred to the High Court decision in HG v The Queen,[3] Heydon JA summarised the position as follows:[4]
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v The Queen (at 428 [41]), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.
[2] (2001) 52 NSWLR 705.
[3] (1999) 197 CLR 414 at [39]-[44].
[4] (2001) 52 NSWLR 705 at 743-744.
At trial there was no challenge to the expertise of Mr Aust. Mr Aust, a mechanical engineer was qualified as an expert in the area of accident reconstruction, and on the topic of seat belts. As the trial judge observed in her summing up:
The next expert was Mr Henry Aust, the mechanical engineer, who has been involved in the study of motor vehicles and motor vehicle accidents and motor vehicle reconstruction since the 1970s. He told you that at one stage he had been part of a study of about 304 road accidents with a multidisciplinary team of surgeons, engineers and psychologists, in which the members of the team who attended motor vehicle accidents as soon as they occurred gathered information available at the scene, do follow-up interviews with the people involved, do detailed engineering examinations and then write up papers on the study.
In Ramsay v Watson,[5] the High Court considered the extent to which assumed facts need to be particularised. The Court concluded that the assumed facts need not be itemised but could be stated more informally. It was held that it was not inappropriate for medical practitioners to narrate a history obtained from a patient as part of the foundation for an opinion. The Court then observed:[6]
And, if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician’s opinion may have little or no value, for part of the basis of it has gone. Each case depends on its own facts.
[5] (1961) 108 CLR 642.
[6] (1961) 108 CLR 642 at 649.
In Paric v John Holland (Constructions) Pty Ltd,[7] the High Court observed:[8]
It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence: ... But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence … to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.
As Wigmore states … “the failure which justifies rejection must be a failure in some one or more important data, not merely in a trifling respect”.
[7] (1985) 59 ALJR 844.
[8] (1985) 59 ALJR 844 at 846.
In a case where assumed facts have not been proved, the admissibility of an expert opinion will depend upon the importance of the assumed facts. If the unproved facts are fundamental to the opinion, then the opinion is irrelevant and of no weight. In a jury trial, it is the province of the jury to decide what facts have been proved. If they conclude that the underlying facts upon which an opinion has been based have not been proved, then they will give no weight to the opinion. If the facts not proved are not fundamental to the opinion, the failure to prove those facts may affect the weight to be given to the opinion. So long as the judge has directed the jury how to deal with opinion evidence, it is to be assumed that the jury will approach their considerations of the expert evidence correctly. It is ultimately a matter for the jury to assess the weight to be given to an opinion.
Counsel for the appellant submitted that a number of critical assumptions, made by Mr Aust, underlay his opinions concerning the driver’s seat belt. Those assumptions concerned the speed of the red Ford, the breaking and operative forces acting on the vehicle and its occupants, the condition of the seat belt, and the position of the driver’s seat.
Counsel for the Crown submitted that there was evidence supporting each of the assumptions made by Mr Aust. It was acknowledged that aspects of the evidence were contentious and that in some respects assumptions made by Mr Aust could be argued not to have been fully supported by the evidence. However, it was said that there was an adequate body of evidence to support each assumption sufficient to render Mr Aust’s opinion evidence admissible. Any criticisms went to weight. In this respect it was emphasised that the trial Judge during her summing up carefully identified each criticism advanced by defence counsel for the jury’s consideration.
Counsel for the Crown drew attention to the evidence of observations of the speed of the red Ford leading to the point where the vehicle left the road. The jury had evidence before it of the extensive vehicle damage caused by the impact. There were other marks about the scene that allowed an expert to draw broad conclusions about speed.
Mr Aust’s opinions concerning the wearing of the driver’s seat belt were based in part on observations made of the seat belt. Other matters relevant to Mr Aust’s opinion related to the weight and size of the occupant of the driver’s seat and, as a result of rudimentary tests, he was able to express the view that either adult occupant of the red Ford could, by reason of weight and size, have occupied that seat. Other rudimentary tests and observations made by Mr Aust provided a basis for his assumption about the position of the driver’s seat.
A review of the transcript and exhibits discloses that there was evidence, if accepted, providing support for Mr Aust’s assumptions. Aspects of that evidence were subjected to criticism. For example, the possibility existed that the red Ford had at some earlier time been in a collision and that the driver’s seat belt on that occasion was subjected to load. This was pointed out to the jury and was available for their consideration.
The submission that the evidence of Mr Aust was inadmissible should be rejected. The submission that the Judge should have rejected the evidence as a matter of discretion should also be rejected. The opinions of Mr Aust were admissible. The weight to be attached to his evidence was to be assessed by the jury having regard not only the suggested weaknesses in the assumed facts but also to the other evidence.
There was also a body of evidence, which if accepted, established that witnesses observed a woman to be driving the red Ford shortly before it left the road. In addition, Ms Harvey observed that the driver was a woman and that she was wearing a seat belt. Other witnesses arriving at the scene made similar observations. A clear basis existed for the jury to reject the evidence of Mr Beveridge and of Ms Cullen. It was open to the jury to accept the evidence of the other witnesses and reach the conclusion beyond reasonable doubt that the appellant was the driver at the time.
All of this evidence was for the jury, to accept or reject and ultimately, if accepted, to weigh and consider with all the other evidence in reaching their verdict.
Summing Up
It remains to consider the terms of the summing up and the criticism that the trial Judge did not adequately assist the jury in regard to the assessment of the expert evidence.

The trial Judge directed the jury that it was solely their task to assess the evidence and reach conclusions of fact. Her direction was unexceptional. It was unambiguous and without error. The trial Judge directed the jury about their task in the assessment of the expert evidence. Her directions included the following:
Now the ordinary rule is that witnesses in criminal trials may speak only as to facts and not express their opinions. An exception to that rule is that persons duly qualified to express some opinion in some particular area of expertise are permitted to give evidence of their opinions upon relevant matters within their field of expertise. However, the law is that you, as the jury, are the sole judges of the facts and you are not bound to accept opinion evidence just because it has been proffered by an expert. You remain the sole judges of the facts. You are entitled to assess and accept or reject any such opinion evidence as you see fit, just like any of the other witnesses that you heard from in the trial. It is for you to give such weight to the opinions of the experts that you have heard in the trial as you think they should be given.
As I said, whilst the law treats expert evidence as a special category, to the extent that it allows them to express opinions, the expert evidence is to be assessed by you in exactly the same way as you will be assessing the lay witnesses. Expert witnesses differ from some of the other witnesses in that they did not see anything that happened. They have based the opinions they expressed on facts they have been given or on examination of photographs or plans of the scene, or in the case of Mr Aust on the basis of certain reconstructed facts about which he was cross examined quite extensively.
[The expert witnesses] were asked to make certain assumptions about those matters in order to give the evidence about the opinions that they did. It is important therefore for you to remember that the opinions they gave are only as valuable as the facts and assumptions which they are based on. They may either have a limited value or no value at all if those facts upon which they have relied have not been established to your satisfaction, or if you are not prepared to accept any more or one [sic] of the assumptions that were put to them.
In any event, it is ultimately a question for you as to whether the opinions of experts have any relevance or make any difference to your task. It is for you to say whether the assumed facts on which their opinions have been based in fact coincide with the facts as you find them to be. That is all a matter for you.
The trial Judge reviewed the evidence of the witnesses who, prior to the collision, made observations of the person occupying the driver’s seat of the red Ford. The trial Judge then reviewed the evidence of the witnesses who made observations after impact of the person occupying the driver’s seat and the passenger’s seat. That evidence has been summarised earlier in these reasons. The trial Judge then turned to the expert evidence. During her summing up, the Judge discussed the evidence of Mr Aust:
Generally [Mr Aust] told you something that you might think is now a matter of common knowledge, that seatbelts were introduced to stop occupants continuing to travel at the speed they were travelling when the rest of the vehicle is stopped. That is, to restrain drivers and passengers from colliding with windscreens or steering wheels or being ejected out of vehicles and suffering horrendous injuries as a result of motor vehicle accidents. Some of us who are older - not many of you - but some of us will remember when seatbelts became compulsory.
Studies have also shown that correctly worn seatbelts resulted firstly in occupants who weren’t ejected and who remained within the seating positions having a reasonable chance of surviving such an episode without serious injury. He also told you that studies had shown if a seatbelt was worn at the time of severe impact the seatbelt can leave what has been referred to as load markings.
You heard the detailed evidence of Mr Aust about the load markings he found in relation to the driver’s seatbelt and the absence of any such load markings on the passenger’s seatbelt in that red Ford Falcon. He told you that the load markings which were found on the driver’s seatbelt could not have been caused in the normal course of travelling or sudden braking. In fact he said that there would be absolutely no chance of any load marking occurring under that scenario. Mr Aust concluded that the driver’s seatbelt was undoubtedly worn by the driver at impact.
Mr Aust also told you that his examination of the seatbelt revealed it to be functional and that the retractor mechanism still locks. He then told you there is a way of viewing the load markings and lines that he showed you on that seat belt to come to a conclusion about the build or weight of the person who was restrained by that seat belt at the time of the accident.
He told you that the measurement is dependent on a number of factors including reconstruction as closely as possible of the position of the seat forwards and rearwards during the accident. He told you that he had done that by looking at the photographs and finding an identical model Falcon which was one year later in manufacture than the red Ford Falcon in the accident.
It also depends upon measurements, he told you, from the distance of the floor anchorage to the tongue, assuming that person is sitting there. For a thin person obviously the length of webbing will be different to that of a person with a bigger build. He told you the measurement of these things was almost like fitting a shoe: a person with a small foot would have a small shoe, a person with a big foot would have a big shoe. By looking at the markings on the webbing and the tongue and making certain assumptions as to height and weight of the person, he could come to a conclusion.
In this case he was acting on information that the deceased was 100 kilograms and 1.71 metres tall and that Ms Cullen was the same height, but 57 kilograms. He performed tests on the basis of a standard person in relation to Ms Cullen’s build, a person who he assumed was 1.75 metres tall and weighed 60 kilograms. The standard person for the deceased, Mr Gillespie, was him, Mr Aust, as he told you that he was 90 kilograms, some 10 kilograms less than the deceased, and 1.7 metres tall.
In Mr Aust’s experience of doing those experiments he said differences this small between the actual weight of the deceased and himself and Ms Cullen and the standard were not sufficient to invalidate the conclusions.
As a result of the three tests which he performed both on himself in that similar Ford Falcon and the young lady whose assumed height and weight were as I have told you, he formed the view that the results of the tests in relation to the measurements were so different that they enabled him to form the opinion that the load bearing marks on the driver’s seat belt in the red Ford Falcon were consistent with Ms Cullen being the driver. He formed the view as a result of the tests he performed that it was not possible Mr Gillespie was the driver when those marks on the driver’s seat belt were generated.
In respect of the foregoing paragraphs, no complaint was advanced about the way in which, or the accuracy with which, the trial Judge summarised the evidence of Mr Aust. It was also accepted that the Judge’s summary of the defence criticisms was both accurate and fair.
The trial Judge identified and addressed the issues agitated by defence counsel. The criticisms made by defence counsel were put by counsel to the jury and were repeated by the Judge during summing up. The summing up included the following:
I remind you of the criticisms which were made of Mr Aust’s opinion and particularly with regard to the fact and assumptions on which it was based. I remind you at this stage and urge you, like Mr Retalic did yesterday, to look at and assess very carefully his opinions and the assumptions which he made. You will need to analyse his evidence very carefully.
In Mr Retalic’s submission to you when you do so you will find there is a very considerable area of doubt about Mr Aust’s opinion because most, if not all, of the assumptions Mr Aust relied on are not based in fact. Although Mr Aust told you he tried to replicate the situation as far as possible when he carried out these tests and formed the opinions that he did, Mr Retalic submitted a number of points for you to consider:-
1. It was a different car that was used.
2.No-one has ever inquired about whether those driver’s seat belt load markings could have been caused in another impact of similar severity.
3.His assumptions of the before and after position of the driver’s seat are fundamentally flawed because you do not know who did what after the accident except, of course, that you positively do know that Mr Beveridge did move the back rest, although he does not claim to have moved the seat on its rungs.
4.When Mr Aust took measurements based on the deceased’s position, the difference between the fore-and-aft position he says was very small, five inches. However, when testing in relation to the different markings from the seat anchorage to the tongue and the D-rung, the difference between himself and standard from Ms Cullen was some five to six inches and, according to Mr Aust, that was sufficient to exclude Mr Gillespie positively from being the driver.
So, Mr Retalic submitted, how do you reconcile a finding so small as to be negligible in relation to one set of measurements, but being sufficient in relation to the seat belt webbing difference in the other experiment to be able to form a conclusion?
6.The posture of the person wearing the seat belt does matter, but no measurements of the models that Mr Aust used were made in different postures. You will recall Mr Retalic used that example, that extreme example, to illustrate that point of a person sitting on the floor.
7.If the seat back had collapsed that would make a difference and therefore you may have a misleading picture, if you accept the evidence of Ms Cullen, the accused’s mother, as to the state of the seat in its form of collapse.
You will bear in mind, when assessing the evidence upon which Mr Aust based his conclusion, that there doesn’t seem to be much doubt whatsoever that whatever the state of that seat at the time, the tyre, which you see in the photographs, was wedged between the back seat and that driver’s seat and was still in that position roughly in the photographs after the accident.
The criticism made of the trial Judge’s summing up was that she failed to give judicial weight to defence counsel’s criticisms of Mr Aust. In the circumstances of this case that was both unnecessary and inappropriate.
The trial Judge specifically referred to Mr Aust’s evidence about the front passenger seat belt. She said:
In relation to the passenger’s seatbelt he did not do any tests as there were no load markings to be found at all on that seat belt. Based on that, in his opinion the force on the Ford Falcon sedan was so great in the accident that if a person had been wearing that seat belt there would have been some form of marking on some of the components in that particular seat belt irrespective of their weight range. In short, he was of the view that the passenger seat belt was not being worn at the time of the accident.
Mr Aust told you that studies show that it is common for unrestrained people to leave a motor vehicle during a severe impact. Once again, you may not need an expert to tell you about that. In Mr Aust’s opinion, based on the position where Mr Gillespie’s body was found, and the other markings left at the scene, he was of the view that it was more probable that Mr Gillespie was partially ejected from the vehicle after initial impact and totally ejected further down the track in the sequence of the accident.
…
Nobody paid much attention to the absence of seat belt markings on the passenger seat belt. You may want to consider and assess the evidence also that you have in relation to the absence of the seat belt markings in the passenger seatbelt. You may particularly want to consider that evidence in conjunction with the evidence you heard from Ms Hong Cullen, that the accused was strapped in her seat belt before the accident and Mr Beveridge, who claims to be the first person on the scene who found her in the seat belt after the accident.
You may ask yourselves the question also in relation to Mr Aust’s opinion, if you are prepared to accept any of it, all of it, or some of it, that there seems to be no doubt that there was no evidence of any load markings on that passenger seat belt. You might ask yourself how does that sit with the scenario of a belted passenger, the absence of load markings in that seat belt, if Ms Cullen was sitting there?
It was accepted at trial that the opinion evidence concerning the front passenger seat belt was admissible. It was argued that the evidence did not have relevance because it was said that the question in issue was who was in the driver’s seat.
This response by counsel was simplistic. It was open to the jury to infer that whoever was occupying the passenger seat was not wearing a seat belt and that as only one person was ejected from the vehicle in the course of the impact that person was the passenger. The opinion evidence about the state of the front passenger seat belt was relevant and probative evidence to suggest that the person who left the vehicle was the deceased and did so from the front passenger seat.
The jury was aware of these criticisms and able to assess and place appropriate weight on them. It was for the jury to give such weight as it thought appropriate to Mr Aust’s opinion along with the other evidence in reaching its verdict.
As earlier observed, there was a body of evidence from which the jury was entitled, quite apart from the expert opinion evidence, to reach the conclusion, beyond reasonable doubt, that the appellant was the driver of the red Ford. The only witness to give evidence of the scene to directly contradict the evidence of a number of the other witnesses was Mr Beveridge. Mr Beveridge only provided a statement to police a few days before trial. His evidence was against the weight of the evidence. The sequence of events that he described was inconsistent with the sequence of events of other witnesses attending at the scene. If the events occurred as he had claimed, a number of the other witnesses would have seen the appellant move from the passenger’s seat to the driver’s seat. The evidence of the daughter of the appellant was inconsistent with the evidence of many witnesses and did not come from an entirely independent source. The evidence of those other witnesses was also supported by the unchallenged evidence of Mr Aust concerning the fact that the passenger’s seat belt had not been worn at the time of the collision.
Conclusion
There is no reason to doubt the correctness of the jury’s verdict. A review of the evidence in its entirety confirms that there is no risk of a miscarriage of justice having occurred.
This appeal should be dismissed.
WHITE J I agree that the appeal should be dismissed. I agree with the reasons of Gray and Sulan JJ.