R v Piper (No. 2)

[2021] NSWDC 279

District Court

New South Wales

Medium Neutral Citation:

R v PIPER (No. 2) [2021] NSWDC 279

Hearing dates:

7 May 2021

Date of orders:

28 June 2021

Decision date:

28 June 2021

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Verdict of not guilty.

See [146]-[147]

Catchwords:

Negligent Driving – Back Up matters on s 166 Certificate after trial – test to be applied – expert evidence – difference in expert opinions – choosing between expert witnesses – autrefois acquit not available – “agony of the moment”

Legislation Cited:

Covid-19 Legislation (Emergency Measures) Act, 2020

Crimes Act, 1900

Criminal Procedure Act, 1986

Evidence Act, 1995

Road Transport Act, 2013

Cases Cited:

Director of Public Prosecutions v Yeo (2008) 188 A Crim R 82; [2008] NSWCCA 953

KRM v The Queen (2001) 206 CLR 22

Leishman v Thomas (1957) 57 WN (NSW) 173

Mule v The Queen [2005] 156 ACR 203, [2005] HCA 49

Osman v R [2020] NSWDC 217

Pell v The Queen [2020] HCA 12

Prineas v R [2018] NSWCCA 221

R v King [2020] NSWDC 505

Stuart v Walsh [2012] NSWCA 186

Category:

Principal judgment

Parties:

Regina
Darryn Wayne Matthew PIPER

Representation:

Counsel:
Mr M Fox (for the Crown)
Mr J Kellaway (for the Accused)

Solicitors:
Mr S Baumgarten, Office of Director of Public Prosecution
Ms T Coates, Hughes & Co, Lawyers & Conveyancing

File Number(s):

2019/271085

Publication restriction:

No

Judgment

Procedural History

1. On 9 November 2020 the accused appeared at the Wagga Wagga District Court and pleaded not guilty to three charges on an indictment, namely (using the short form of the charges) two charges of Dangerous Driving Occasioning Death contrary to s 52A(1)(c) of the Crimes Act, 1900 and one charge of Dangerous Driving Occasioning Grievous Bodily Harm contrary to s 52A(3)(c) of the Crimes Act. The accused pleaded that he was not guilty. The trial proceeded before me sitting without a jury. For reasons I gave ex tempore on 16 November 2020 verdicts of not guilty were returned in respect each of the three charges on the indictment and the accused was discharged.

2. For the benefit of those interested, in particular the family and friends of the two deceased, the late Mr Keatley and the late Mr Grinter I will set out the procedural history of the matter.

3. The impact out of which the matter arose occurred on the afternoon of 1 March 2019. The Court Attendance Notices in respect of the charges contrary to s 52A (Dangerous Driving Occasioning Death; Dangerous Driving Occasioning Grievous Bodily Harm as well as the charges presently being considered) on the Court file indicate that those Notices were created on 28 August 2019 and the first return date before the Local Court was Tuesday 19 November 2019 at Young Local Court. There were two further appearances before the Local Court on 4 February 2020 and 17 March 2020 and then on 13 May 2020 the accused was committed for trial to the District Court at Wagga Wagga. The matters presently under consideration come to the District Court attached to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986.

4. The first appearance before the District Court at Wagga Wagga was on 12 June 2020. The representative of the Crown at that time signalled that the trial may be by judge alone. A timetable for the service of notices pursuant to sections 142 and 143 of the Criminal Procedure Act, 1986 was set. The trial date of 9 November 2020 was set. A readiness hearing was set for 28 August 2020.

5. The matter was before the District Court at Wagga Wagga on 28 August 2020. The trial date of 9 November 2020 which had been set at the arraignment hearing was confirmed. The Crown Prosecutor who appeared at trial appeared remotely and informed the Court that the Crown consented to trial by judge alone. The election pursuant to s 132 of the Criminal Procedure Act to which the Crown consented was filed in Court, it having been transmitted to the Court electronically.

6. The Crown consented to trial by judge alone with the knowledge that as the resident judge in Wagga Wagga I would be the trial judge. The fact that the trial was held judge alone had nothing to do with the restrictions then in place because of the COVID-19 pandemic. The Covid-19 Legislation (Emergency Measures) Act, 2020 was not invoked. I record that jury trials had been held at Wagga Wagga in September 2020.

7. Further on 28 August 2020 the parties were requested to make available to me copies of the relevant experts’ reports. A considerable volume of material including a number of statements of witnesses, experts’ reports and a volume of photographs were made available on the afternoon of 6 November 2020. Accordingly, I was able to read that material and attend to a deal of preparation before the trial commenced on 9 November 2020. There is nothing unusual or exceptional about a judge having material in advance with the consent of the parties, particularly in circumstances where there is a volume of evidence from expert witnesses.

Acknowledgement

8. I accept without hesitation the proceedings both at the trial and in this matter would have been traumatic for the family and friends of the late Mr Keatley and the late Mr Grinter. I note the families have taken a very keen interest in the proceedings attending all but the first day of the trial and every occasion the matters presently under consideration have been before the court. I accept the matter must be particularly traumatic for Ms Julianne Keatley. I do not think I will ever forget her account of the impact and in particular that part of her evidence of seeing the snorkel of the vehicle being driven by the accused. The loss for the families is unimaginable.

9. For what it is worth the court again extends its sincere condolences to the families and friends of the late Mr Keatley and the late Mr Grinter for their loss.

The trial

10. The trial in respect of the matters contrary to s 52A of the Crimes Act commenced on 9 November 2020 and concluded with verdicts of not guilty on 16 November 2020.

11. The matters arise out of impacts between a Toyota Landcruiser utility registered AK-19-HY and two motorcycles on the Willawong Creek Bridge near Murringo, which is a small village near Young on the Young to Boorowa Road. One motor cycle was a red Honda being ridden by the late Mr Keatley and the other a Ducati being ridden by the late Mr Grinter.

12. All vehicles were roadworthy. There is no suggestion that anyone involved was exceeding the speed limit. The impacts occurred on the bridge. There is no suggestion that anyone involved was affected by alcohol or drugs. It is uncontroversial that the impacts occurred on the accused’s incorrect side of the road. As I observed in my reasons (p 19) of 16 November 2020 there is general agreement that the impact with the red Honda was a side-swipe type of impact.

13. The bridge on which the impacts occurred and the approaches to that bridge are shown in the many photographs and video recordings which I will refer to later when dealing with the issue of a view. The roadway comprises of a single lane in each direction. The sign-posted speed limit was 100 km/h but that has since the impacts been reduced to 80 km/h. There was an advisory speed sign for traffic travelling in the direction of the accused of 80 km/h and an advisory speed sign for traffic going in the other direction 65 kilometres per hour.

14. There was a gouge mark in the centre of the north bound lane (i.e. the lane of travel for the two deceased) which was identified as the point of impact with the Honda motor cycle. There was a further gouge mark in the centre of the northbound lane, which it would seem indicates the point of impact with the Ducati motor cycle.

15. Essentially the case for the Crown at trial (t’script 11/11/20) p 151:38 ff) is that the accused either deliberately controlled his vehicle to place it on the incorrect side of the road or that the vehicle was on the incorrect side of the road reason of the accused not paying attention. The Crown went on to put (p 152:21) that on the evidence of the Crown’s expert Mr Simon Parker that the “accused would not have been able to observe the motor cycles were where they were”.

16. The defence case at trial was (t’script 11/11/20 p 152:25ff) relying on an opinion expressed by Mr Grant Johnston, the defence expert that it could not be excluded beyond reasonable doubt as a reasonable possibility that the accused was on his incorrect side of the roadway as a reaction to seeing the two motor cycles on their incorrect side of the roadway. The following appears in the trial transcript at p 152 commencing from line 10:

HIS HONOUR: That – the Crown’s expert yesterday Mr Parker for a scientist, I found him relatively – well this is a preliminary view but I found him relatively unimpressive, he was dogmatic, he was glib at times, unwilling to concede virtually anything, gave long rambling answers, gave unresponsive answers even when I put it in simple terms.

CROWN: I think the high water mark is essentially is that he has the vehicle on the incorrect side of the road well before the bridge starts.

HIS HONOUR: And your case Mr Kellaway from – and you don’t have to answer this if you don’t want to, there’ll be no criticism express or implied nor any adverse consequences but I gather from Mr Johnstone’s report in effect you’re saying the defence case is either that at least the motorcycles were on the wrong side of the road, which cause (sic) your client to react by steering to the incorrect side of the road or alternatively that cannot be discounted as a reasonable possibility.

KELLAWAY:   It can’t be excluded beyond reasonable doubt as a reasonable possibility.

HIS HONOUR: Yes

KELLAWAY: Yes thank you

HIS HONOUR: So I’ve grasped the issues?

KELLAWAY:   With the greatest of respect, your Honour said that on the first day

HIS HONOUR: Well, I had the benefit of reading all that material last week. Again, I thank counsel for their industry and courtesy….”

17. Mr Johnston’s conclusion (p 52, exhibit 7) was:

“The physical evidence suggests that both impacts actually occurred in the southbound lane on the defendant’s incorrect side of the centreline. The evidence however also suggests that it is a reasonable possibility that in both instances the defendant has crossed to the incorrect side of the road in an attempt to avoid the motorcycles both of which appear to have started on the incorrect side of the roadway, consistent with the witnesses observation and to swerving right to left at the time”.

18. The evidence in the trial concluded on the afternoon of Friday 13 November 2020. Both counsel addressed the following Monday, 16 November 2020. Clearly, the issue which essentially was the ultimate issue for the tribunal of fact, was ventilated in open court at a relatively early stage of the trial and certainly before the evidence had concluded. In accordance with my usual practice I sent counsel (electronically) the draft of my directions of law. This was sent the day before the addresses were made. The Crown Prosecutor indicated on the morning of 16 November 2020 before he addressed had not read that document. He did not ask for time to read it and had he asked for such time it would have been given. Mr Kellaway had read the draft directions and had no submissions in respect of them.

19. The Crown Prosecutor then proceeded to address using as the foundation for that address that the accused had not discharged his onus in respect of the statutory defence pursuant to s 52A(8) of the Crimes Act. Section 52A(8) provides a statutory defence where the onus is on the accused to prove on the balance of probabilities that the death or grievous bodily harm was not in any way attributable to the manner in which the vehicle was driven. The Crown addressing on that issue as he did came as a complete surprise to me as that (i.e. the statutory defence) had never been raised as an issue in the trial. Had the Crown Prosecutor read the document that had been forwarded to him it would have been obvious that I was not going to say anything in my decision about the statutory defence provided for by s 52A(8) of the Crimes Act.

20. I will deal with the expert evidence and other evidence later in these reasons.

Charges attaching to s 166 Certificate

21. The trial proceeded on 9 November 2020 with the verdicts being announced sometime after 4pm on 16 November 2020. The Crown then indicated that there were matters attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act. Those charges, as they are pleaded in the respective Court Attendance Notices are:

H72087350 Sequence 1:

That Darryn Piper on 1 March 2019 at Murringo in the State of New South Wales did negligently drive a motor vehicle, namely a Toyota Land Cruiser utility registered number AK-19-HY upon a road namely Murringo Gap Road, Murringo thereby occasioning the death of Anthony Keatley; and

Sequence 2:

That Darryn Piper on 1 March 2019 at Murringo in the State of New South Wales did negligently drive a motor vehicle, namely a Toyota Land Cruiser utility registered number AK-19-HY upon a road namely Murringo Gap Road, Murringo thereby occasioning the death of Raymond Grinter; and

Sequence 3:

That Darryn Piper on 1 March 2019 at Murringo in the State of New South Wales did negligently drive a motor vehicle, namely a Toyota Land Cruiser utility registered number AK-19-HY upon a road namely Murringo Gap Road, Murringo thereby occasioning grievous bodily harm to Julianne Keatley

22. Although the matters were mentioned on other occasions, particularly 9 April 2021, the s 166 matters were heard, i.e. pleas were taken, material tendered, written submissions tendered and oral submissions made by the parties on 7 May 2021.

Sections 165-169 Criminal Procedure Act, 1986

23. It is appropriate to consider the relevant provisions of the Criminal Procedure Act. Sections 165 to 169 inclusive of that Act provide:

165   Definitions and application 

(1)    In this Part—

“back up offence”, in relation to an indictable offence, means an offence—

(a)  that is—

(i)  a summary offence, or

(ii) an indictable offence that is capable of being dealt with summarily by the Local Court in accordance with the provisions of Chapter 5, and

(b) all the elements of which are elements that are necessary to constitute the first indictable offence, and

(c)  that is to be prosecuted on the same facts as the first indictable offence.

“court” means the Supreme Court or District Court.

“related offence”, in relation to an indictable offence, means an offence—

(a)  that is—

(i) a summary offence, or

(ii) an indictable offence that is capable of being dealt with summarily by the Local Court in accordance with the provisions of Chapter 5, and

(b) that arises from substantially the same circumstances as those from which the first indictable offence has arisen,

but does not include a back up offence.

(2)    This Part extends to proceedings commenced, but not concluded, before the commencement of this Part.

166   Certification and transfer of back up and related offences 

(1)    On committal for trial or sentence of a person charged with an indictable offence—

(a)  the prosecutor must inform the Magistrate as to whether or not the person has been charged with any back up offence or related offence, and

(b)  if the person has been charged with any back up offence or related offence—

(i)  the prosecutor is to produce to the court a certificate specifying each back up offence and related offence with which the person has been charged, and

(ii)  the proceedings on each back up offence and related offence with which the person has been charged are to be transferred to the court in which the person has been committed to trial or sentence (along with the certificate).

(2)    This section does not prevent the person referred to in subsection (1) being charged with any offence after committal.

(3)    Proceedings on a back up offence or related offence that are laid after committal for trial or sentence of a person charged with an indictable offence are to be transferred to the court in which the person has been committed to trial or sentence.

167   Manner of dealing with back up and related offences 

(1)    If, following a plea of guilty by an accused person to an indictable offence or at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person guilty of the offence, the court—

(a)  is (unless it considers it inappropriate in the circumstances to do so) to order that the charge in relation to each back up offence be dismissed, and

(b)  is to deal with any back up offence the charge for which is not dismissed under paragraph (a) and any related offence with which the accused person has been charged in accordance with this Part, unless to do so would not be in the interests of justice.

(1A)    If at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person not guilty of the offence, the court is to deal with any back up offence or related offence with which the person has been charged in accordance with this Part, unless to do so would not be in the interests of justice.

(2)    If a court is dealing with an accused person for an indictable offence following the person’s committal for sentence, the court—

(a)  is (unless it considers it inappropriate in the circumstances to do so) to order that the charge in relation to each back up offence be dismissed, and

(b)  may deal with any back up offence the charge for which is not dismissed under paragraph (a) and any related offence with which the accused person has been charged in accordance with this Part, unless to do so would not be in the interests of justice.

(3)      (Repealed)

(4)    A court may deal with a back up offence or related offence with which an accused person has been charged even though it is not doing so in relation to a back up offence or related offence with which another accused person in the same proceedings is charged.

168   Procedures for dealing with certain offences related to indictable offences 

(1)    The court is to deal with a back up offence or related offence under this Part without a jury and on the basis only of evidence given during the trial of the accused person for the relevant indictable offence in the same proceedings and additional evidence given under this section.

(2)    The prosecutor or accused person may, with the leave of the court, call additional evidence in relation to the back up offence or related offence.

(3)    In sentencing or otherwise dealing with a person for a back up offence or related offence, the court has the same functions, and is subject to the same restrictions and procedures, as the Local Court.

(4)    Rules of court may be made with respect to back up offences or related offences dealt with under this Part.

169   Remission of certain offences related to indictable offences to Local Court 

(1)    A court that is dealing with a back up offence or related offence under this Part may, if it is in the interests of justice to do so, remit the matter to the Local Court.

(2)    Any back up offence or related offence that is not dealt with by a court in accordance with this Part is to be remitted back to the Local Court.

Question of Judge Lerve remaining as the presiding judge

24. I understand that the relatives of the late Mr Keatley and the late Mr Grinter would have preferred another judge decide the matters attaching to the s 166 Certificate. I can understand why that might be so. For reasons given ex tempore on 9 April 2021 I determined that I should remain in the matter as the presiding judge. I note in particular that it was the express position of both parties that I remain as the presiding judge.

25. Further, I note that at the conclusion of the ex tempore reasons given on 9 April 2021 I directed that a transcript be taken out of my reasons and further that that be provided to the parties. That transcript was received by my chambers on 14 April 2021. As I indicated in open court on 7 May 2021 shortly after receipt of the transcript my Associate forwarded electronically copies of the transcript of my reasons of 9 April 2021 to the parties with a suggestion to the Crown that the relatives of the late Mr Keatley and the late Mr Grinter be also provided a copy. It was tolerably plain from what transpired on 7 May 2021 that did not occur. Why the families of the two deceased persons were not provided with a copy of that transcript as suggested by the Court remains obscure to me.

Question of a View

26. The law regarding the holding of a view, in this case the viewing of a collision scene, is set out in section 53(1) Evidence Act, 1995:

(1) A judge may, on application, order that a demonstration, experiment or inspection be held.

27. The emphasis on the words “on application” is mine. The Crown filed a Notice of Motion seeking that the court attend for a view at the scene of the impact, namely the Willawong Creek Bridge just outside of the village of Murringo on the road between Young and Boorowa. On 9 November 2020 I raised the Notice of Motion with the parties. The following appears at p 4:05ff of the transcript of the proceedings of the morning of 9 November 2020:

“HIS HONOUR: And do you have a particular attitude about the Crown’s application for a view Mr Kellaway?

KELLAWAY: Well the accused consents to the application.

HIS HONOUR: Right. I’ve yet to be persuaded of the absolute necessity of it Mr Kellaway, given the number of photographs I’ve got.

KELLAWAY: I appreciate that your Honour.

HIS HONOUR: But I’ll hear the Crown. That’s just a preliminary view; I’ll certainly hear the Crown. But if you consent to it, well, it’s probably a foregone conclusion then.

KELLAWAY: Well your Honour--

HIS HONOUR: I gather Mr Kellaway you’re a little ambivalent about the view?

KELLAWAY: Well Mr Johnston did a view himself. I’ve been and done my own view and it helped me. But your Honour, I haven’t had a great familiarity with those roads between Young and Boorowa.

HIS HONOUR: Nor do I. Between Cootamundra and Dubbo I’ve got a very good knowledge of the road, but from Young to Boorowa no I don’t.

KELLAWAY: There’s an enormous amount of photographic, map, scanning, evidence.

HIS HONOUR: Yes. I want to hear the Crown as to why he says it’s necessary Mr Kellaway.

KELLAWAY: If your Honour pleases.

HIS HONOUR: Now can we advance the matter any further until 12 o’clock?

BAUMGARTEN: Not from the Crown’s perspective your Honour.

HIS HONOUR: I’ll say 12 o’clock but just keep me posted on Mr Fox’s availability will you please Mr Crown, Mr Kellaway?

BAUMGARTEN: As the Court pleases.

SHORT ADJOURNMENT”

28. Later that afternoon the Crown Prosecutor was able to appear remotely from his accommodation in Wagga Wagga. The following appears in the transcript at p 5:34 of 9 November 2020:

“CROWN PROSECUTOR: Your Honour the first thing I understand that your Honour would like to be resolved is whether or not this trial requires a view.

HIS HONOUR: Well you’re rather insistent on it I gather Mr Crown?

CROWN PROSECUTOR: Well I was your Honour. I’ve spoken with my learned friend this morning and perhaps there’s a way around the need for an actual view. Clearly a major issue in this trial your Honour will be the capacity of the witness Ms Winbank to have observed what she stated she observed about the movement of the motorbikes and the utility on the roadway prior to the collision. I’ve attended the location myself last week and I can indicate from my perspective that it certainly was of great assistance. However, there are some photographs of Senior Constable Wright that were taken in respect of this issue, and they are available and they do provide some view.

But speaking with my friend this morning there is also a walkthrough video that was conducted with the witness Ms Winbank by Detective Lake. I was not sure as to whether or not that video was admissible in the form it was because it was a video of the witness Winbank stating things not in a statement form. But I’ve understood from my learned friend this morning that he’s quite happy for that video to be played in its entirety, including the audio track.

HIS HONOUR: Is that so Mr Kellaway?

KELLAWAY: Yes, thank your Honour.

HIS HONOUR: All right. Well does that--

CROWN PROSECUTOR: That being the case it may well be that a view will not add a great deal more than what your Honour can glean from the photographs of Wright and that video.

HIS HONOUR: It seems to me Mr Crown it would be a day because we have to drive to - it’s Wagga to Cootamundra to Young and then to the bridge, and then probably an hour or so at the bridge, and then the return trip. It’s a day, in effect, isn’t it?

CROWN PROSECUTOR: Yes it would, it’d be an entire day, with the added problem of course of having to stop the traffic on that road, which would be a problem.

HIS HONOUR: Yes.

CROWN PROSECUTOR: I mean it could be done but it would be a nuisance for the good citizens of that district,--

HIS HONOUR: You’d also--

CROWN PROSECUTOR: --but I’m in your Honour’s hands as to whether or not your Honour feels a view would be necessary.

HIS HONOUR: I’ll make a determination of - my inclination is no, I won’t go on a view Mr Crown, Mr Kellaway, but I will watch this video and if I still think, or one of the parties think it’s not clear, I’ll reconsider the matter. But the answer is I will not go on a view for the time being. Well my answer for the time being is I won’t go on that view, Mr Crown.

CROWN PROSECUTOR: Thank your Honour.

HIS HONOUR: It seems to me there was an abundance of photographs, there’s the plan, and that walkthrough video. I’ll wait and see. If the situation changes after I’ve seen that, well I’ll say something to you Mr Crown and Mr Kellaway. Now what can we do today? What can we do now?”

29. As indicated on 9 November 2020 my inclination was to say no to a view, but clearly it was left open to the Crown to renew the application for a view. A thorough reading of the trial transcript indicates that a view was never mentioned again.

30. In an email to which the Crown Prosecutor and his instructing solicitor were “copied in” of 8 April 2021 Mr Kellaway, counsel for the accused correctly observed that “No party has made any application for leave to call additional evidence”. This is a reference to the provisions of s 168(2) of the Criminal Procedure Act which is extracted above at [23] of these reasons. In order for there to be any fresh evidence admitted at a hearing of matters attaching to a s 166 Certificate, including a view an application has to be made by one of the parties.

31. On 9 April 2021 towards the end of the reasons I gave I indicated that I would be “somewhat sympathetic” to an application for a view to the scene, particularly given that it was very much the wishes of the relatives of the deceased persons that that occur. The Crown Prosecutor’s instructing solicitor was physically present on 9 April 2021 when I gave those reasons. On 7 May 2021 it transpired that the Crown Prosecutor had not read those reasons. On 7 May 2021 time was given to the Crown for him to read those reasons and discuss those reasons with the families of the late Messrs Keatley and Grinter.

32. When court resumed the Crown Prosecutor (somewhat hesitantly to my observations) made application to call fresh evidence by way of the Court attending the scene of the impact for the purposes of a view. On 7 May 2021 the Crown Prosecutor accepted that his application “knowing that it’s on fairly uncertain ground” (t’script 7/5/21 p. 10:17). That application was opposed by Mr Kellaway. Mr Kellaway (p 10:28 07/05/21) put on record an email sent to my Associate by the Crown on 14 April 2021 at 3.39pm, namely:

“Dear Madam Associate”. [And the topic is “Piper, Crown Position”]

I confirm that the parties in Piper have held discussions and the current position is that the matter can be concluded in one day, on 7 May, and that a view is not appropriate. In order for there to be a view the Crown would need to seek leave under s 168 to tender fresh evidence, which a view is pursuant to s 53 of the Act” [It should read Evidence Act.] “The defence have indicated that would oppose that leave being granted. Given that the issue of the view was raised and determined prior to the trial there is nothing additional we can rely upon to now justify a view. In fact because the s 166 proceedings themselves will be quite short because of there being no need to recall witnesses and written submissions already being made then taking a whole day to conduct a view would not meet the test under s 53C in our opinion. We understand the families are keen for a view to be conducted, however that is not a basis for now seeking leave to conduct a view. As written submissions will have been filed it is understood that the matter can be concluded expeditiously on 7 May. Mr Fox will attend in person”.

33. It may have been helpful had the Crown read the transcript of what I had said on 9 April 2021, or for that matter what I had said about a view been communicated to the Crown Prosecutor by his instructing solicitor who was physically in court at 2pm on 9 April 2021.

34. A little earlier on 7 May 2021 in an exchange between the Crown Prosecutor and me, the following was said (p 5:20):

“HIS HONOUR: Well I don’t think I actually made a decision as such. I know there was a Notice of Motion filed by the Crown, it was mentioned on the first day of the trial, 9 November. I don’t have a transcript of what happened that day and I’m only going from memory, but…my memory is that I said “no” but I left it open to the Crown to renew the application.

Now I remember actually discussing the matter with my associate during the early part of that week, wondering, or contemplating what would be the better day if we were going to go on a view because it would entail some organisation and in fact would have taken a day essentially by the time we travelled from Wagga to Young and then to Murringo and then spent some time at the bridge and then return.

CROWN PROSECUTOR: I think we even discussed that in Court if I recall your Honour there was some agreement between the parties that any view would take the whole day.

HIS HONOUR: Yes. I don’t ever recall giving reasons for a view. My initial reaction was no, essentially because not in any particular order there were so many photographs and also the logistical issues. And also my experiences of views is that they are generally of very little assistance. I was never actually asked to formally rule on the view Mr Crown.

CROWN PROSECUTOR: All I can recall Your Honour is that both parties had sought it and---

HIS HONOUR: No, you sought it, the Crown – Mr Kellaway didn’t oppose it.

CROWN PROSECUTOR: I think that’s right, yes. He didn’t oppose it.

HIS HONOUR: But I was never actually asked for reasons Mr Crown and I know I wasn’t because there is no judgment prepared and in fact there was a daily transcript prepared and if I give reasons on some type of application there is a separate transcript prepared by RSB. There is no transcript on the issue of a view.”

35. I also raised this issue with Mr Kellaway after I had heard the Crown. Commencing at p 11:12:

“HIS HONOUR: Mr Kellaway what is your memory of what happened on 9 November so far as the application for a view? My memory is, and I am only going from memory, and in that I do not have a transcript of what happened on 9 May [sic but read November] but my memory is that the Crown Prosecutor could not attend personally because of an issue with COVID test. We commenced the matter with the Crown Prosecutor appearing remotely from his accommodation in Wagga Wagga. Your client was arraigned, a plea of not guilty was entered. The application for trial by judge alone, to which the Crown consented some time before 9 November became an exhibit in the trial and I think it – my memory is it was me that mentioned the Crown’s notice of motion.

I also recall calling on you and asking your attitude about the view. You didn’t oppose it. My reaction was initially to say no, but I thought, and my memory is I left it up in the air so to speak, if I might use that colloquial expression to be to be brought up later in the week and I am quite firm that I was never actually asked to rule on that notice of motion.

Is your memory any different Mr Kellaway?

KELLAWAY:   No your Honour. Can I just---

HIS HONOUR: By all means Mr Kellaway.

KELLAWAY:   My instructing solicitor agrees with your Honour as well.

HIS HONOUR: I concede I certainly said my initial reaction was no, but that was not a – I was never actually formally asked to rule on that notice of motion.

KELLAWAY:   Well the application was not pressed.”

36. Mr Kellaway is entirely correct with that last observation as the transcript of pages 4 to 6 inclusive of 9 November 2020 indicates.

37. The Crown Prosecutor at p 10:17 on 7 May 2021 said, “Only that I make the application, but I make it knowing that it’s on fairly uncertain ground”.

38. On 7 May 2021 I gave an outline of my reasons for refusing the application for a view. The issue of the timing of that application and the lack of notice to the accused’s legal representatives has already been dealt with.

39. Section 54(3) of the Evidence Act, i.e. the section of that Act dealing with views provides:

(3)    Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following—

(a)  whether the parties will be present,

(b)  whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence,

(c)  the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time,

(d)  in the case of a demonstration—the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated,

(e)  in the case of an inspection—the extent to which the place or thing to be inspected has materially altered.

40. If a view had been held the parties would have been present. Subparagraph (d) of s 54 is not relevant and there was evidence that the applicable sign-posted speed limit had been reducied to 80 km/h but there was no physical change to the bridge or the approaches to the bridge. The real issues I had with holding a view were the provisions of subparagraphs (b) and (c) of s 54(3).

41. Given the amount of photographic material including numerous still photographs, footage taken from a drone and drive through videos I am not of the opinion that a view would have materially assisted the court in the resolution of the matters. I include in that the offences contrary to s 52A dealt with at the trial and the matters presently under consideration. The volume of photographic and video type evidence available is readily ascertained by reference to the exhibit list at trial. The photographic and video evidence of the scene is included in the following exhibits:

Exhibit Number	Brief Descriptions
B	Photographs with the Statement of Nicole Brown (police crime scene examiner)
C	Scale plan
D	Aerial photographs
E	Video
G	“Walk through video” and transcript
FF	Photographs of land cruiser
HH	Photographs
JJ	Large Aerial map
LL	Disc containing aerial footage
MM	In car video
NN	36 photographs (stills from MM)
OO	52 photographs – stills from video footage
Exhibit 1	Bundle of photographs
7	Report of Mr Grant Johnston (defence expert) which included numerous photographs

42. In addition, Detective Lake, the officer in charge, gave a volume of evidence both in evidence in chief and under cross-examination as to the drive through videos and the photographs in exhibit OO. Both experts, i.e. Simon Parker for the Crown and Grant Johnston for the accused were extensively cross-examined using the photographs

43. Given the volume of material set out in the table above I remain firmly of the view that attending the scene would have not materially assisted me in determining the issues. For more abundant caution I include in that the trial and the matters presently under consideration.

44. There were also the logistical issues to consider. The view would have taken an entire day involving travel from Wagga Wagga to the scene, a drive of two and one half hours each way. A view would have involved the requesting the police to stop traffic in both directions for on my estimate at least half an hour while counsel and I drove across the bridge from both directions. For any view to be of any benefit it would also have been necessary for me to cross the bridge in a vehicle the height of (or close enough to) that of the vehicle being driven by the accused. Ideally, motor cycles would have been required for placement on the road.

45. I have been a judicial officer in one jurisdiction or another since 2005 and have attended a number of views. I have yet to have taken a view which in my view assisted the tribunal of fact in any meaningful way. As I said on 7 May 2021 my experience with views is that they are of very limited utility. The time that would have been taken and the other logistical issues to which I have referred would in my opinion not have justified the court going on a view.

46. Those are reasons for declining to the scene of the impacts on a view pursuant to s 53 of the Evidence Act.

The charges of Negligent Driving Occasioning Death (2 counts); Occasioning Grievous Bodily Harm (1 count)

47. The conduct to which the charges presently under consideration is contrary to s 117 of the Road Transport Act, 2013, which relevantly provides:

117   Negligent, furious or reckless driving 

(1)    A person must not drive a motor vehicle on a road negligently.

Maximum penalty—

(a)  if the driving occasions death—30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence), or

(b)  if the driving occasions grievous bodily harm—20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence), or

(c)  if the driving does not occasion death or grievous bodily harm—10 penalty units.

48. Section 117(1) of the Act creates the offence and subparagraphs (a) and (b) provide for the penalty if death or grievous bodily harm is occasioned as a result of the negligent driving.

49. The test for negligent driving was set out by Johnson J in Director of Public Prosecutions v Yeo (2008) 188 A Crim R 82; [2008] NSWCCA 953 at [27]:

“Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances. The distinction which may be drawn between driving negligently, driving in a manner dangerous to the public and driving of a kind which justifies a conviction for manslaughter is essentially a distinction in the degree of negligence appropriate to the offence, being a distinction in the degree of departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances: R v Buttsworth at 672.”

50. His Honour went on to say at [29]:

“The question is essentially whether the driver was exercising that degree of care which the ordinary prudent driver would exercise in all the circumstances, including the circumstances as set out in s.42(3): Simpson v Peat [1952] 2 QB 24.”

51. A little later his Honour observed at [32]:

“It is clear that negligent driving is to be regarded as something less serious than reckless or furious driving or driving at a speed or in a manner dangerous to the public (all offences contained in s.42(2) of the Act): Clout v Hutchinson at 35. In Ex parte Graham; re Dowling (1968) 88 WN(Pt1)(NSW) 270, Asprey JA observed at 282:

"Like the tort of negligence, 'negligent driving' is difficult to reduce to a set of rules. It covers a multitude of sins. It relates to the circumstances of the occasion. What would constitute the offence in one instance would pass without censure in another."

52. The part of the judgment of Johnson J in Director of Public Prosecutions v Yeo is extracted by Hoeben CJ at CL (Fullerton & Hulme JJ agreeing, each with brief additional reasons) in Prineas v R [2018] NSWCCA 221 at [46]. It would seem that there is no reason to doubt the test as stated by Johnson J is the correct test to apply in determining whether a particular piece of driving is negligent within the meaning of s 117 of the Road Transport Act.

52. It seems to me that before I could return a verdict of guilty to any of the three charges the Crown would need to prove to my satisfaction beyond reasonable doubt the following essential elements or ingredients:

1. The accused drove a motor vehicle;

2. On a road or road related area; and

3. The accused drove that vehicle negligently; and

4. In the case of sequence 1 the death of Mr Keatley was occasioned, in the case of sequence 2 the death of Mr Grinter was occasioned and in the case of sequence 3, grievous bodily harm was occasioned to Ms Julianne Keatley.

54. I have dealt with the concept of negligence at paragraphs [49]-[51] above.

55. The words beyond reasonable doubt are ordinary English words and they are given their ordinary English meaning. The collective legal wisdom developed over the centuries is that further elaboration by trial judges is neither necessary nor desirable. Suspicion, even the gravest of suspicion, cannot amount to proof beyond reasonable doubt. The onus and burden of proof remains on the Crown from beginning to end. The accused bears no onus. It is not for the accused to establish that he is not guilty it is for the Crown to prove beyond reasonable doubt that he is guilty.

56. Further, as I observed in my reasons at the trial (p 6 reasons) it is vitally important that I clearly understand than an accused must be found not guilty if his guilt has not been established to my satisfaction beyond reasonable doubt. It follows from this of course that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient if I have a reasonable doubt in respect to the matter the accused is entitled to the benefit of that doubt and I must find him not guilty.

57. Conformably with the decision of the High Court in Pell v The Queen [2020] HCA 12 I remind myself that beyond reasonable doubt is the highest standard on proof known to the law. A verdict of not guilty simply means that the Crown was not able to satisfy that very high standard of proof.

58. Ordinarily with multiple charges it would be necessary to give myself a warning conformably with KRM v The Queen (2001) 206 CLR 22. Clearly there will have to be separate verdicts in respect of each count. However, as was the situation with the trial, given the issues to be determined, the same verdict will be common to each of the three charges.

59. I remind myself about the drawing of inferences. I remind myself of the example relating to the telephone call to a friend from the Trials Bench Book that is routinely given to juries. Inferences may be valid or invalid, correct or incorrect. In a matter where the Crown is required to prove its case beyond reasonable doubt I must not draw any inference from the direct evidence unless it is the only rational inference available in the circumstances.

60. As the tribunal of fact I am not obliged to accept the whole of the evidence of any one witness. I may accept part and reject part of the same witness’ evidence.

61. It will be necessary for me to review the evidence given at the trial. This will necessarily repeat some of what I said in my reasons given for the verdicts of not guilty on 16 November 2020.

62. For the reasons I gave on 16 November 2020 in the trial (see pp 10 to 12 inclusive) I am satisfied beyond reasonable doubt that the accused was the driver of the Toyota Utility AK-19-HY, that there was an impact between that vehicle and a Honda motor cycle being ridden by the late Mr Keatley on which Ms Julianne Keatley was a pillion passenger, that there was an impact between the accused’s vehicle and a Ducati motorcycle being ridden by the late Mr Grinter and further that the death of Messrs Keatley and Grinter were occasioned as a result of those impacts, as was the grievous bodily harm sustained by Ms Keatley.

63. I have already set out the time, date and place of the impacts and the persons involved. The late Mr Keatley and Julianne Keatley left their home at Ungarie at about 11am on 1 March 2019. Julianne Keatley was the pillion passenger. She and her husband were able to communicate with each other because of devices fitted to their helmets. They were travelling to a motor cycle rally at Kiama on the south coast. They met the late Mr Grinter and Mr Phillip Rogan at the McDonald’s restaurant at Young. After having some refreshments they commenced the journey to Kiama which took them to the village of Murringo and then on towards the Willawong Creek Bridge.

64. The accused had been working on a property with a Mr Karl Sharpe. The accused and Mr Sharpe did work and as at the date of trial continued to work for Rowan Madge, a fencing contractor in Forbes. The statement Mr Madge made to police became exhibit P in the trial. Mr Madge received a call from the accused at approximately 1.55pm on 1 March 2019 in which he told Mr Madge that he was leaving the property on which he was working and heading home.

65. The next time Mr Madge spoke to the accused was at 2.10pm on 1 March 2019 where the accused said (see paragraph 7 of the statement; trial t’script 112:29):

“Darryn said, ‘I’ve been in an accident, I have come down to the hill onto the bridge and the motorcycle was on my side of the road, I swerved to miss them and rolled the vehicle. Basically Darryn said, it was two people dead and one person injured’”

66. Ms Julianne Keatley gave evidence, commencing p 19:07. She describes that she had a memory of overtaking one car:

“We were riding along the road and heading up. It was a lovely day for a ride, being the passenger I was just taking in all the scenery, then coming up further I looked over to my husband’s shoulder to see this ute coming around the bend. I remember saying ‘he is so far over our side of the road’, and I just remember seeing like a snorkel and then very close to that ute in my memory. It comes at me every day and I recall hearing my husband’s calm voice saying ‘there’s nowhere to go’ before the collision and finding myself on the ground looking up at the sky.”

67. She said she could not recall the actual impact. Ms Keatley then went on to say (p 19:19)

“I – when I saw the ute it was on the same side of the road as us. We were on the left hand side coming around this sweeping bend. When I looked over to my husband’s shoulder to see this ute coming the other way, it was on the same side of the road as us and I just remember seeing this snorkel, this blackness, and then we had nowhere to go and I believe we had nowhere to go - my husband said we had nowhere to go and we had this collision on the bridge.”

68. Ms Keatley maintained that she and her husband were on the correct side of the road. Her evidence on this issue is found commencing at p 20:19:

“Q:   Do you remember the positon of the bike was on the road as you rounded the bend leading on to the bridge?

A:    We were positioned on the left hand side of the road

Q:   Can you say where you were in relation to the centre line?

A:   I believe that we were on the left hand side of the road. How close we were to the, the centre line, I really couldn’t tell you

Q:   But you were within your lane

A:   Yes.”

69. She was then asked about the overtaking manoeuvre which occurred just after leaving the village of Murringo. She said (p 20:42) that they went back to the left hand side of the road after that manoeuvre.

70. At p 21:30 Ms Keatley was asked, “Can you describe how the ute was moving in the lane, what it was doing in the lane before impact?” She replied, “Just coming around the bend on the wrong side of the road coming at us, yeah”. She went on to say (p 21:18) that when she first saw the utility it was approaching the bridge. She then said the utility was in “our left hand side, so his right hand side”, i.e. travelling in the same lane that they were and the utility remained in that lane.

71. Under cross examination Ms Keatley said (p 25:37) that she saw the ute before the bridge. At p 27:43 the following appears in the transcript:

“Q:    I wanted to suggest to you Mrs Keatley that given you were being that kind of travel as a tourist up until the point where you apprehend danger that for that reason alone that you wouldn’t be able to say with certainty the path that your motor cycle took on the bend as it came into the bridge, Do you understand the question?

A;   When I – yes. When I sw the ute first when I first saw that ute we were on our left-hand side of the road.”

72. Mr Phillip Rogan was part of the group of motor cyclists and he was following Mr and Mrs Keatley and Mr Grinter. He recalls they left Young about 1.30 (pm) on 1 March 2019. He recalls the overtaking manoeuvre conducted by the riders in front of him (p 34). He recalls that after the overtaking manoeuvre the motor cycles in front of him returned to their own side of the road (p 35:20). The next thing he remembers was “a ute coming at me like that”. He went on to say that the ute was “virtually off the bridge, it was a Toyota Land Cruiser, it had a bit of a crate on the back of it, and it was about 45 degrees like that and the wheels up in the air”. He went on to explain that the wheels of the ute were up in the air and the cab was facing towards him.

73. Mr Kyle Sharpe who had been working with the accused also gave evidence at the trial. He was travelling in a separate vehicle and was about 100 metres in front of the accused. He had driven through the scene of the impacts a number of times leading up to 1 March 2019 as had the accused. He left the property where they were working about 2pm. Mr Sharpe believes he was about 100 metres the Young side of the bridge when he heard a noise. As a result of hearing that noise he looked in his rear view mirror and realised that the land cruiser was rolling (see generally p 84). He believes he saw one or two rolls of the vehicle. He pulled over to the side of the road and called triple-0 and then drove back to the bridge. He saw two people helping the accused out of the vehicle. He stayed with the accused until the accused was air lifted to Canberra.

74. Sometime after the impact Mr Sharpe asked the accused what had happened (see p 86:36-50). Mr Sharpe said (p 86:46), “Just once everything had settled down I just asked what had happened and he said he saw the motor bike come onto his correct side of the road. He’s tried to evade or miss that motorbike and then he couldn’t remember what happened after that”.

75. Ms Vicki Windebank was in a vehicle travelling in the same direction as the motor cycles, i.e. away from Murringo travelling towards Boorowa. It was her vehicle that the motor cycles overtook shortly before getting to the bridge where the impacts occurred.

76. In my reasons in the trial I observed of Ms Windebank (p 23 reasons):

“She not only stopped, assisted at the scene, helped extricate the accused from the vehicle in which he had been driving, remained at the scene, gave an account to police, did a walk-thru video recording with the police, and, of course, gave evidence. She made a number of corrections to her statement most of which were matters of little consequence, but, in my view, the fact that she was anxious to make those corrections speaks volumes of her honesty as a witness.”

77. At p 98:36ff in the trial transcript the following appears:

“Q. Now you were referring to some portions of paragraph 15 that you now have a different recollection about; is there any other portions of that statement that you wish to correct?

A. Yes in number 9 where it says “Cut the corner as they entered onto the bridge, then they both cut the corner. It was only one of them and that was the second rider not the first. They were right on the line.

Q. So the second rider cut the corner?

A Yes.

Q. But the first rider was on the line?

A. Yes.

Q. And when you say cut the corner, the second rider how far across do you say he cut the corner?

A. Very little, very little.”

Q: Is there any other portions of the statement that you wished to clarify?

A: Where it says in number 11 (paragraph) I believe the driver of the utility has seen the motorcycle in his lane, well, I don’t see that because I got - alls (as said) I seen was him going back on to the white line, I didn’t see him in his lane

78. Ms Windebank’s police statement was admitted into evidence as exhibit O in the trial. After giving the account of being overtaken by the motorcyclists she says in that statement commencing paragraphs 9 to 13:

“9.   I noticed that both motorcycles cut the corner as they entered onto the bridge. It appears as if they motor cycles were following each other. They both cut the corner as they entered the bridge.

10.   I saw a white four-wheel drive utility coming in the opposite direction. This driver was on his side of the road driving safely.

11.   I believe that the driver of the utility has seen the motor cycles in his lane and swerved to his left in an attempt to avoid them as he had nowhere to go.

12.   I saw his swerve a second time to his left again. This is when I believe the utility has clipped the bridge which caused him to impact with the bridge.

13.   I saw the utility flip around three times and eventually land on the roof in the opposite lane.”

79. At p 104:37 Ms Windebank was asked in evidence in chief, “But your evidence today is that the first bike in this group of bikes was the one that hugged the centre line. She replied, “Yeah the first bike was on the white line when I seen them approaching the bridge.”

80. Ms Windebank had her grandchildren in the car with her and as I observed in my reasons at trial it is hardly surprising that she was concentrating on them. She did not actually see the impact with the motorcycle being ridden by the late Mr Keatley. She stopped and spoke to the accused at the scene. She gives evidence about that at p 103:25ff:

“Q. Did you say anything to him?

A. I just told him to calm down, it was an accident. He spoke to me after that. We got back into the car after that.

Q. What did he say on that occasion?

A. I was in shock as I sat in the car, and he was talking. He was actually talking to another person, a male and female, but I asked him to sit back into the car and he was talking but I wasn’t listening and I was trying to understand what had just happened. Then he got really loud and he said `I swerved’ and I said `I seen you swerve, it was an accident. It wasn’t your fault, you’ve got to calm down’. And I just sat there, it was silence and then I got out of the car.”

81. Ms Windebank also confirmed at p 105:25 that it all happened very quickly.

82. Under cross-examination at p 107:04 Mr Kellaway for the accused asked Ms Windebank, “Can you tell us why you always slow down for the bridge?” She replied, “‘Because there’s many times traffic have crossed that line where I’ve had to go over to the side and give myself room. So many people cross over that white line and it’s just a dangerous bridge.”

83. Three brothers Matthew Mears, Jason Mears and Dale Mears who were travelling to a funeral at Boorowa also gave evidence. They saw parts of the events and stopped and assisted. They all maintain that they heard the accused say something about falling asleep. Each of them give a slightly different version. Dale Mears said that he heard the accused say, “I fucking fell asleep”.

84. Matthew and Jason Mears gave an account of the accused saying that he may have fallen asleep whereas Dale Mears has the accused making a far more definite statement. As I observed (p 27 reasons) in my reasons at the trial the accused being drowsy, sleepy or somnolent formed no part of the Crown case on the issue of the accused driving in a manner dangerous to the public. Indeed, had the trial been a jury trial there would have been a very viable argument (which in my view would have inevitably have succeeded) that the evidence the Mears brothers gave about what they heard the accused say about falling asleep be excluded on the basis that it was not relevant and/or it was unfairly prejudicial. The evidence of the Mears brothers does not assist at all in the resolution of the matter.

85. Mr Daniel Smith, a vehicle examiner gave evidence that he examined the vehicles and he found no mechanical defect in any of the vehicles involved that would have contributed to the impacts.

86. The accused did not give evidence at the trial and he did not give evidence at the hearing on 7 May 2021. Although the directions were given at trial on this aspect, for more abundant caution I will repeat those directions which are at p 6ff of my reasons:

87. The accused did not give evidence. An accused is entitled to give or call evidence in respect of any aspect of the Crown’s case, however an accused is equally entitled to put the Crown to proof and require the Crown to prove his or her guilt beyond reasonable doubt. As the tribunal of fact I must draw no inference adverse to the accused because he did not give evidence.

88. The onus and burden of proof is on the Crown from beginning to end to the criminal standard of beyond reasonable doubt. There may be good reasons why an accused would not give evidence and as the tribunal of fact I must not speculate on what they may be. The absence of evidence from the accused cannot be used as a makeweight in determining whether the Crown has proved its case beyond reasonable doubt, nor can it be used to plug or fill gaps I perceive in the evidence.

89. At the risk of repetition, no inference adverse to the accused must be drawn because he did not give evidence and the onus and burden of proof is on the Crown from beginning to end.

90. In this matter however, the accused did not remain silent in the course of the investigation. He gave a record of interview which unusually is in the form of a typed record of interview rather than electronically recorded.

91. Given that the matter arises from an impact between motor vehicles, one of which was being driven by the accused, the accused was obliged by reason of the Motor Traffic Legislation to give some version to investigating police. He was not obliged however to participate in a record of interview.

92. If as the tribunal of fact I accept the version given by the accused in that record of interview he is entitled to be found not guilty as the Crown would have failed to prove something which it is required to prove before a verdict of guilty can be returned. However, as the tribunal of fact it may be the case that although I do not positively or affirmatively accept the version of the accused it may nevertheless give rise to me entertaining a reasonable doubt about the guilt of the accused. That is to say I do not have to positively or affirmatively accept the version of the accused before I entertain a reasonable doubt.

93. Further, even if I rejected the version of the accused, I would need to be satisfied beyond reasonable doubt on the evidence of the Crown case alone before I could return verdicts of guilty.

94. For more abundant caution I direct myself conformably with the decision of the High Court of Australia in Mule v The Queen (2005) 156 ACR 203, [2005] HCA 49, that as the tribunal of fact I am entitled to give the version of the accused less weight as the version is not on oath or affirmation.

95. Exhibit H at the trial is a transcript of the record of interview conducted by police with the accused. Curiously it was the wish of the accused to give a version which was typed rather than be interviewed electronically. At p 28 of my reasons at trial I set out the version the accused gave to police. That version was:

Question 11,

“Q. How do you say this collision occurred?

A. I was working roughly 15 kilometres on the Young side of Boorowa. I was heading through Young on the way back to Forbes. My work mate was in a work Rodeo in front of me and his name was Kyle Sharpe. I remember the bend before the bridge, a right hand bend, and I could see Kyle going across the bridge at the time. As I was approaching the bridge I could see the left side of the bridge and I saw the motorcycle approaching. I saw that he was on the wrong side of the road. I started braking to slow down. I have driven the road for the last weeks and the bridge is shit which I’m aware of the conditions of the bridge.

[65] In summary, the issue is not whether there was an alternative course of action Mr Stuart could have taken which would have avoided the collision such as remaining in Lane 1 without the necessity of having to apply his brakes. The issue is whether in all the circumstances with which he was faced, his reaction to the sudden and unexpected movement of Dr Walsh onto the carriageway was unreasonable. In my opinion it was not. It accorded with the response of a reasonably prudent driver in the position Mr Stuart found himself.

142. Mr Kellaway submits at paragraph 34 of his written submissions:

“The instance or the crisis or emergency in this case is now incontrovertible. It must be then be accepted that the accused was not the author of it, but suddenly entered it unexpected, unheralded and was forced to act without opportunity for calm reflection. This is one of the circumstances in applying the test of the ‘prudent driver’ and as allowed for by Street (CJ) a ‘circumstance of great importance.’”

143. I agree with the Crown’s submission that there is no plea of autrefois acquit available to the accused. I note the written submissions from the Crown were received well before those for the accused and accordingly the Crown was not aware as to what would be submitted on behalf of the accused. No submission is made on behalf of the accused that a plea of autrefois acquit is available. Driving in a manner dangerous to others and negligent driving are different offences which involve different tests. The situation in the matter presently under consideration is entirely different to the situation with which the court was met in R v King [2020] NSWDC 505.

144. The Crown’s ultimate submission (paragraph 26 of the written submissions) is:

“It is submitted that when all the circumstances are taken into account including the statutory provisions pursuant to s 117(3) Road Transport Act, 2013, the court would find beyond reasonable doubt that the accused’s manner of driving involved a departure from the standard of care which an ordinary prudent driver would observe in the circumstances. Accordingly the court would determine beyond reasonable doubt that the accused is guilty of the two offences of Negligent Driving Occasioning Death under s 117(1)(a) Road Transport Act 2013 and the one offence of Negligent Driving Occasioning grievous bodily harm under s.117(1)(b).”

145. Mr Kellaway’s ultimate submission (paragraph 35 of his submissions) is:

“There is no other feature or combination of features in this case that once considered would allow for the accused to be not guilty of driving in a manner dangerous, but guilty of driving in a negligent manner. The distinction between the two offences is appreciated, however, again, the evidence of Mr Johnston remains undisturbed and it follows together with his evidence with respect to making an emergency decision, and application of the principle of the ‘agony of the moment’ that the Crown case cannot be said to be proven to the criminal standard”.

146. Mr Johnstone’s conclusion and opinion remain “undisturbed”. That was an expression used by Mr Kellaway in his closing address and one that I adopted in the course of my reasons. It accurately states the status of Mr Johnston’s evidence.

147. Because of s 117(3) of the Road Transport Act, the circumstances of the road in particular the bridge and the approaches to it are relevant to my determination in this matter. For the reasons given above it cannot be excluded as a reasonable possibility that the accused was reacting to the motorcycles being on the incorrect side of the road. He had very little time, indeed approximately 1.5 seconds to make a decision. Ultimately I am of the opinion that the argument as to the “agony of the moment” as explained by Tobias AJA in Stuart v Walsh at [61] as set out above succeeds. Accordingly my verdicts are:

H72087350 Sequence 1:    Not guilty;

H72087350 Sequence 2:   Not guilty; and

H72087350 Sequence 3:   Not guilty.

148. The accused is discharged.

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Decision last updated: 28 June 2021