R v Schilder (No 1)
[2013] NSWDC 23
•23 January 2013
District Court
New South Wales
Medium Neutral Citation: R v Schilder (No 1) [2013] NSWDC 23 Hearing dates: 2-3 May 2012, 25-28 September 2012, 10-14 December 2012 Decision date: 23 January 2013 Before: Neilson DCJ Decision: In relation to the offence of Aggravated dangerous driving occasioning death, acquitted
In relation to the offence of Dangerous driving occasioning death, convicted
In relation to the offence of Aggravated dangerous driving occasioning grievous bodily harm, acquitted
In relation to the offence of Dangerous driving occasioning grievous bodily harm, acquitted
Catchwords: CRIMINAL LAW - Trial by judge alone - Aggravated dangerous driving occasioning death - Aggravated dangerous driving occasioning grievous bodily harm - Circumstance of aggravation - Whether accused drove vehicle exceeding speed limit by 45 km/h - Accused suffered complex partial epileptic seizure leading to collision - Accused previously involved in motor accidents caused by his epilepsy - Accused lied to psychologist and RTA to obtain renewal of licence - Accused was sleep deprived - Speed of accused's vehicle prior to his having a seizure unknown - Expert evidence - Accident reconstruction - Question of speed of accused's vehicle at time of collision - Reliability of lay opinion as to speed - Issue of voluntariness of accused's actions following seizure Legislation Cited: Crimes Act 1900 s 52A
Evidence Act 1995 s 165Cases Cited: Gillett v R [2006] NSWCCA 370
Hill v Baxter [1958] 1 QB 277
Jiminez v R [1992] HCA 14; 173 CLR 572; 106 ALR 162
R v Gillett [2005] NSWDC 20Category: Principal judgment Parties: Regina (Crown)
Daniel Gordon Schilder (Accused)Representation: Ms K Ratcliffe (Crown)
Ms D Yehia SC (Accused)
Ms L Cocca (Crown)
Ms S Foggo (Accused)
File Number(s): 2011/055324
Judgment
Introduction
On 12 September 2010 Mr Daniel Gordon Schilder ("the accused") was driving south along the Princes Highway at Bomaderry. He was behind the steering wheel of a white 1993 Ford Fairmont sedan registered number AV 64 ZB ("the white Fairmont"). He had been delivering take-away food for a Chinese restaurant in Nowra, the Delicious Canton. His shift was from 5.30pm to 7.30pm. On this evening he had completed 5 deliveries and at 6.30pm he left the restaurant to make a delivery at North Nowra and another at Bomaderry. He had completed those deliveries and was returning to Nowra.
Around 6.55pm the accused's white Fairmont crossed over the central median strip dividing northbound and southbound traffic on the Highway, at a point just north of the T-intersection of the Highway and Bolong Road. The white Fairmont then travelled about 270 metres south in one of the two northbound lanes of the Highway to the intersection of the Highway and Illaroo Road, which is immediately north of the two bridges which carry the Highway over the Shoalhaven River. Illaroo Road makes a T-intersection with the Highway on its western side. This intersection is governed by traffic control lights.
The traffic lights turned red for those travelling on the Highway. They turned green for traffic turning out of Illaroo Road. Those turning left onto the Highway started travelling north. Those turning right, to go to Nowra, turned through an arc of 90º ending on a ramp which after about 40 metres took them onto the south bound bridge over the river. One of those motorists turning right out of Illaroo Road was Mr Timothy Ioannou, who was driving a green 1998 Ford Falcon registered number AIC 93Z ("the green Falcon"). Mr Ioannou was accompanied by a friend, Ms Amanda Sutton, who was his front seat passenger. She was in her mid-twenties at that time. They were going into Nowra to pick up a pizza.
Mr Ioannou had almost completed his right-hand turn, into the right of the two lanes carrying southbound traffic over the old iron bridge, when his vehicle was struck at speed from behind by the white Fairmont which, in the intersection, had crossed back onto the southbound lanes of the Highway. The green Falcon was propelled at an angle out of the right-hand lane, across the left-hand lane, and then it mounted the kerb, crossed the footpath and crashed through a pedestrian safety fence. At this point the ramp leading onto the bridge is about 4 metres above ground level, with the ground falling away to the river's edge. The green Falcon became airborne but was falling due to gravity. It struck a large tree on the riverbank. As the leading edge of the green Falcon hit the tree, momentum made the back of the car continue to move forward so that the roof of the passenger compartment of the vehicle also collided with the tree. The vehicle then turned about 90º around the tree, fell to the bank and into the river where it sank 5 metres to the bottom of the river.
Mr Ioannou was trapped in his vehicle due to vehicle damage and he drowned. The pathologist who certified that as the cause of death also observed that there were soft tissue injuries on the deceased's scalp which might indicate some closed head injury, which might indicate that the deceased had been made unconscious, which would have made him unable to escape from the sunken vehicle. Ms Sutton suffered severe injuries which the accused admits amount to grievous bodily harm. There were fractures of the transverse processes of six of her vertebrae (from T12 to L5). As at the commencement of the current trial, Ms Sutton had had two spinal operations. The first was the removal of one of her vertebrae and a fusion, with the insertion of internal fixation. The second was the removal of the spinal fixation, complicated by wound infection. She also suffered a de-gloving injury to her left lower leg, the tibia being visible. This also required operative treatment.
After the collision, the accused's vehicle followed a similar path to that of the deceased's vehicle, but a little to the south (right) of it. A skid mark suggests the accused may have been applying his brakes. His impetus appears to have been greatly affected when the front right-hand side of his vehicle collided with a steel lamppost, which collapsed. The white Fairmont came to rest with its front having struck heavy metal structures at the commencement of the bridge. The left-hand side of his vehicle collided with the pedestrian safety fence and the left rear wheel was suspended in the air, hanging over the edge of the ramp. Had the accused's vehicle not struck the lamppost it seems likely to me that his vehicle would also have landed in the river and sank. The accused also suffered injuries. He was admitted to the Shoalhaven Hospital and was discharged on 17 September 2010. He had a comminuted fracture of his nasal bones and a minimally displaced fracture of his left eye socket. However, surgery was not needed. He also suffered a fracture of bones in his right ankle, which required the accused to wear a back slab plaster for six weeks and then to undertake physiotherapy.
Court Attendance Notices were filed in the Local Court of Nowra on 4 March 2011. They required the accused to appear before that Court on 4 April 2011. He did so. In that regard [58] of the Agreed Facts (exhibit 1) is erroneous. At a mention on 7 June 2011, the Magistrate noted that the police had served a "full" brief. On 1 July 2011 the Magistrate noted that the accused had been granted Legal Aid. On 4 October 2011 the accused entered pleas. He pleaded guilty to an offence contrary to section 52A(1)(c) of the Crimes Act 1900, that is, guilty of the offence of dangerous driving occasioning the death of Timothy Ioannou. He also pleaded guilty to an offence contrary to section 52A(3)(c), that is, guilty of the offence of dangerous driving occasioning grievous bodily harm to Amanda Sutton. The maximum penalty for the first of those offences is 10 years imprisonment and for the second of those offences is 7 years imprisonment. There were two further charges, which Dick LCM merely noted were "back-up" charges.
However, further Court Attendance Notices had been filed on 23 June 2011. Each contained an allegation of aggravated dangerous driving, the circumstance of aggravation being that provided by s 52A(7)(b), that the accused was driving his vehicle at a speed that exceeded, by more than 45 km/h, the speed applicable to that length of road. The accused pleaded not guilty to the offences contrary to section 52A(2) and section 52A(4). Those offences carry maximum penalties of 14 years and 11 years respectively. The DPP asked for time to consider his position and the matter was stood over to 18 October 2011. Obviously, the DPP decided to pursue the outstanding charges. On 18 October 2011, the accused waived his right to a committal hearing and was committed for trial in this Court at Nowra.
The Issue for Trial
The accused elected to be tried by judge alone. The Crown consented to that election. The accused was arraigned before me at Nowra on 2 May 2012. The two counts on the indictment are these:
1. on the 12th day of September 2010, at Nowra, in the State of New South Wales, [the accused] did drive a vehicle namely, Ford Fairmont AV-64-ZB, when it was involved in an impact occasioning the death of Timothy IOANNOU, and the said Daniel Gordon SCHILDER was at the time of the impact driving the vehicle in a manner dangerous to other persons, in circumstances of aggravation, namely he was driving the vehicle at the speed that exceeded, by more than 45 kilometres per hour, the speed limit applicable to that length of road.
2. on the 12th day of September 2010, at Nowra, in the State of New South Wales, [the accused] did drive a vehicle namely, Ford Fairmont AV-64-ZB, when it was involved in an impact occasioning grievous bodily harm to Amanda SUTTON, and the said Daniel Gordon SCHILDER was at the time of the impact driving the vehicle in a manner dangerous to other persons, in circumstances of aggravation, namely he was driving the vehicle at the speed that exceeded, by more than 45 kilometres per hour, the speed limit applicable to that length of road.
To each of those counts the accused pleaded that he was not guilty but formally admitted his guilt to the unaggravated offences, just as he had in the Local Court. It has therefore become my responsibility to decide whether the Crown has proved beyond reasonable doubt whether "at the time of the impact" the accused was driving his vehicle "at a speed that exceeded, by more than 45 km/h, the speed applicable to that length of road", namely 70 km/h. More shortly, has the Crown proved beyond reasonable doubt that "at the time of the impact" the accused was driving at a speed exceeding 115 km/h?
The Accused's Background
To understand the nature of the case against him and the significance of the accused's pleas, it is important that his background be considered. Such is also relevant to the question of sentence because, even if the accused be acquitted of the charges contained in the indictment, he still must stand for sentence for his admitted crimes. The following facts can be gleaned from the Agreed Facts (exhibit 1) and the oral evidence of Professor Pollard, which I have no hesitation in accepting.
The accused was born on 5 August 1983. At the time of the collision he was 27 years and one month old. In 2004 two significant things occurred but I do not know, because of a lack of evidence, which occurred first. The accused had a grand mal seizure, which led to the diagnosis of epilepsy. On 10 September 2004 the accused obtained a Learner Driver's Licence. On 23 September 2005 he obtained a P1 Driver's Licence.
In late 2006 the accused suffered another epileptic seizure. This is to be inferred from the history given at the time of a hospital admission on 8 August 2007, of a seizure some eight to twelve months previously. This could not possibly be a reference to the initial seizure which occurred some four years previously. On 8 August 2007 the accused was driving home after a shift as a delivery driver for a Chinese restaurant. He ran his car off the road and hit a tree. The accused was admitted to the Shoalhaven Hospital. His mother was contacted by a member of the public after that person found the accused sitting behind the steering wheel of the vehicle after the collision. The accused was unable to remember any details of the collision. However, his mother expressed the view that the accused's appearance was one that was typical after he suffered from an epileptic seizure. This was the accused's first motor vehicle accident.
On 19 December 2007 the accused obtained a P2 Driver's Licence. To obtain that licence the accused made representations to the RTA about his health which were patently untrue. Relatively shortly thereafter, the accused was involved in a second motor vehicle accident. On 11 February 2008 the accused was driving on the Prince's Highway at Gerringong. The accused crossed onto the incorrect side of the carriageway, causing a vehicle travelling in the opposite direction to leave the road and to go down an embankment. The accused told police that he did not see the other vehicle, but that does not explain why the accused travelled onto the incorrect side of the carriageway.
The accused was involved in another motor vehicle accident (the third) on 7 June 2008. His vehicle collided with the rear of another vehicle in a street in the central business district of Wollongong, then mounted the kerb and collided with a street sign. The other motorist thought that the accused appeared to be intoxicated but testing revealed that that was not the case. The accused was involved in a fourth motor vehicle accident on 27 November 2008. This collision occurred at approximately 10.15pm. The accused again crossed onto the incorrect side of the carriageway. The driver of a vehicle on that side of the road saw the accused's vehicle driving towards her at increasing speed. She unsuccessfully tried to avoid what became a head-on collision. Both the accused and the lady driver were injured and taken to hospital.
The accused had no memory of the collision but did remember having a "fit". He made this signed statement to police on 3 December 2008:
"I can't remember much as I suffer epilepsy and had a fit while driving. I remember going round the roundabout at Kinghorne Street on the wrong side. I remember my foot was stuck it felt like nothing there. All I remember was people after the collision saying 'Are you OK[?]' I am suffering epilepsy and currently taking 2000mg per day. My last small seizure when my mouth dropped earlier that day. The doctors suspended my licence."
The opinion (clearly of medical professionals) was that the accused had a grand mal epileptic seizure which caused him to lose control of his vehicle, leading to the collision.
Dr Ernest Hore referred the accused to Professor John David Pollard AO who, at the time of giving evidence (3 May 2012), was an Emeritus Professor of Neurology at the University of Sydney. The Professor is still a consultant neurologist. The referral letter advised the Professor that the accused had had a grand mal seizure in 2004 with recurrent seizures since (T65.15). The Professor first saw the accused on 18 December 2008. The accused advised the Professor that he was taking Epilim to attempt to control his seizures. The Professor advised the accused to:
(a) take regular meals,
(b) not miss sleep,
(c) take his medication regularly,
(d) cease smoking cannabis.
The accused assured the Professor that he had had a change of life and that he wished to get his driver's licence back.
The accused had an electroencephalogram on 13 February 2009 and was reviewed by the Professor on 26 March 2009. The Professor advised the accused that if he had a year without a further seizure, since that of 27 November 2008, he was prepared to recommend that his driver's licence be restored. The Professor again reviewed the accused on 18 June 2009. This review was "brought forward" because of a complication. The Professor said this:
"He came to see me with his mother. There had been an episode at school where he had a facial drop and a difficulty speaking for a few seconds at school, and I noticed at that time he had a marked tremor, which is a well known side effect of Epilim. So I made the decision to change from Epilim to the new drug Keppra, and, as we see subsequently, the tremor stopped and he felt very much better."
On 7 September 2009 the accused had what Professor Pollard subsequently diagnosed (in the witness box) as a grand mal seizure. This occurred in the accused's home. The "fit" lasted several minutes. The accused was incontinent of urine and fell forward, striking his forehead and nose on the floor. The accused was admitted to the Shoalhaven Hospital. A history recorded states that in the days preceding the seizure the accused was attending parties and was relatively sleep deprived. The accused saw the Professor again on 12 November 2009 and denied any seizure since the review on 18 June 2009. The Professor said:
"He assured me that he hadn't had any seizures, and he described he felt very much better on the new drug, and his tremor had ceased." (T68.30)
The first part of that history is clearly untrue.
The Professor reviewed the accused again on 18 December 2009. The accused told the Professor that he had had no seizure in the last 12 months (T69.02). The Professor reiterated the advice I recorded in [16] above, adding to the advice concerning cannabis the avoidance of other central nervous stimulating agents. Based on the history given to him, the Professor completed a certificate for the RTA stating that the accused was "fit to drive". That led to the lifting of the suspension of the accused's driver's licence. On 17 February 2010 the accused completed a Licence Renewal Application. In that document he made statements about his health which were untrue. Professor Pollard reviewed the accused on 2 August 2010 for a periodic medical examination required by the RTA. Again, the accused told the Professor that his last seizure was on 27 November 2008. Again, the Professor certified the accused as fit to drive, subject to his use of the prescribed medication and annual review, based on an untrue history.
The Types of Epileptic Seizure
There are three types of epileptic seizure. Professor Pollard gave this evidence:
"Q. Can you explain a grand mal seizure?
A. In a grand mal seizure the patient loses consciousness, often go through a phase where their body stiffens and that may last a minute or so and there's a clonic phase where vigorous jerking of all limbs and trunk occurs. Patients may harm themselves during those procedures. They maybe incontinent of urine and they may bite their tongue.
Q. How does that differ from a complex partial seizure?
A. In a complex partial seizure a patient usually has a period of impaired consciousness. It may be accompanied by movements of the mouth and tongue. They often simply stare straight ahead. They may fall to the ground. It may be precipitated by unusual tastes or smells or intense memories.
HIS HONOUR
Q. Is a complex partial seizure to be differentiated from petit mal or is it a form of petit mal?
A. They may be very similar. Petit mal was a term that was introduced particularly for brief absence seizures in children and it's particularly used in that context, but in many respects they are very similar."
The Agreed Facts (exhibit 1) set out opinions provided by Dr Mohammed Armin, a neurologist. At [39] this is stated:
"Dr [Armin] opines that consciousness is afflicted in varying degrees in patients with epilepsy. There are two ends of the spectrum. At one end the patient may have a convulsion and have complete loss of consciousness with slow recovery. At the other end the patient may have a seizure where they [sic] have a subjective sensation without any alteration in awareness. Most complex partial seizures ...... will affect consciousness to some degree. During a seizure the subject may be able to respond, obey commands and interact partially with the environment but at the same time have no memory of the event, be slow to respond and have poor judgment or be unable to make complex decisions. So for example, the patient can continue to drive but have difficulty in judging which side of the road they [sic] should be on, keeping to the speed limit and when they [sic] should [brake]."
The Accused's Subsequent Medical History
As I earlier recorded at [6], after the collision the accused was taken to the Shoalhaven Hospital and admitted. A blood sample taken from the accused was analysed and found to contain a very low concentration of the inactive metabolic product of the major active drug in cannabis. Dr Judith Perl, a pharmacologist expressed the opinion that this indicates that some time in the past, but "not recently", the accused had used cannabis. The inactive metabolic product found in the accused's blood can be stored for several days or even weeks after cannabis use. Dr Perl has also expressed the view that the accused's ability to drive would not have been impaired by the presence of this inactive metabolic product in his blood. However, what it does show is that the accused was not following the advice which had been given to him by Professor Pollard.
The blood testing also confirmed the presence of the drug known commercially as Keppra and suggests that the accused was taking his prescribed medication. However, Dr Armin points out that it is not possible to say whether the accused was taking the medication "consistently" or whether the accused had missed a dose or doses proximate to the collision.
On 13 September 2010 the accused spoke to the medical registrar at the hospital, Dr Vanza. His clinical note is this:
"on discussion with the patient, the patient does not believe the MVA was due to a seizure and believes he simply fell asleep at the wheel."
A history to much the same effect was given by the accused to an occupational therapist at the Hospital. Given the accused's medical history, Dr Vanza arranged for Professor Pollard to see the accused on 16 September 2010.
Agreed Facts [48] is this:
"Professor Pollard saw the accused four days after the collision, 16 September 2010. The accused told him that he had been working on his Chinese food delivery service, was feeling tired and dosing off as he had worked six nights that week and also had been riding his bike on the day of the collision before going to work. He said he believed he had fallen asleep at the wheel due to tiredness. Professor Pollard considered it possible nonetheless that the accused had suffered an epileptic fit and he recommended to the RTA medical unit the immediate cancellation of his driver's licence. The accused's licence was suspended on 27 September 2010 until 18 February 2011 on medical grounds and it was then voluntarily surrendered and cancelled on 18 February 2011."
Not only does Professor Pollard believe that the accused suffered from a complex partial epileptic seizure leading to this collision but so also does Dr Armin. In fact it is Dr Armin's opinion that that is indeed what occurred, as stated in [39] of the Agreed Facts, but omitted from the quotation I made in [21] above. Dr Armin said that excessive speed can be explained during a seizure as either from a tonic episode, where the patient becomes stiff in a leg, or, alternatively, in his altered state the driver suffering a seizure could simply have let the car accelerate. He has also expressed the view that apparent driver input to correct his steering after crossing the central median island (which in fact occurred) in order to avoid colliding with the western kerb of the Highway is not inconsistent with the accused's having suffered from a epileptic seizure. In Dr Armin's opinion, the accused must have had some awareness to correct his path, yet his consciousness was altered so not to be able to brake or stop.
The Position of the Parties
The Crown accepts that it is a reasonable possibility, which it cannot disprove, that the accused was having an epileptic seizure at the time of the collision on 12 September 2010 and that this was what caused the manner of the accused's driving and the resultant collision.
Before outlining the position of the accused, it is necessary to record how the accused was immediately after the collision and admissions he then made. Part of [27] and [28] of the Agreed Facts are this:
"... Very soon after the collision, witnesses Estelle Morris and Leeza Doohan opened the accused's driver's side door and found him slumped over the steering wheel. Initially he did not say anything and just closed his eyes. When they began talking to him to try to keep him alert, he sat up and answered their questions, giving them his name, the day of the week, said that he'd been motor bike riding that day and then asked "Where's my brother?" and said "Don't tell my brother". Witness Jim Fullard also had a conversation with the accused immediately after: Mr Fullard asked him a number of times whether there was anyone in the car with him and the accused just looked at him and didn't reply, but then he said "Don't tell anybody". Fullard asked him if he will be ok and he said "my foot, my foot". Another witness Daniel Descalzo saw that the accused had his head down on the steering wheel and complained that his eyes hurt. Arthur Timbery observed that the accused "just didn't seem right". Allison Mansell described the accused as appearing agitated, moving all over the place and wanting to get out of the car.
The accused was assessed by paramedic Jeff Haigh at 7.06pm. He assessed the accused's Glasgow Coma Scale as 15 and his blood glucose level was well within normal limits. The accused told Haigh "I know I've had a crash but I don't know what's happened though". He told him he was a delivery driver for a Chinese restaurant and thought he had fallen asleep. The accused said "I shouldn't have gone to work cause I've been out motorbike riding all day in the forest and I felt tired"."
The accused accepts that when he drove his white Fairmont on the evening of 12 September 2010 there was a risk that he would suffer an epileptic seizure whilst driving. His epilepsy, combined with his continued use of cannabis and his sleep deprivation, had an inherent capacity to initiate a seizure. The accused knew this and was acting contrary to his medical advice. [57] of the Agreed Facts continues thus:
"... It was the accused's driving at a time when he was suffering that medical condition in the period immediately preceding the onset of the seizure that was the cause of the collision and that made the accused's driving objectively dangerous to other people because it subjected other people to a real and significant risk of injury or death over and above that ordinarily associated with the driving of a motor vehicle."
A question which then arises is: when did this epileptic seizure begin? That question cannot be answered without considering the relevant scene.
The Environs of the Collision
The Princes Highway at Bomaderry generally runs in a north-south direction. The roadway generally provides for four through lanes of traffic, two in each direction, separated by a raised concrete median strip. Bolong Road forms a T-intersection with the Highway, on its eastern side, about 310 metres north of the northern end of the Shoalhaven River bridge. Bolong Road carries southbound traffic into Bomaderry, thence to Coolangatta, to the Shoalhaven Heads access road, then joins or becomes known as Gerroa Road, which runs behind Seven Mile Beach, to Gerroa and thence to Gerringong whence one can rejoin the Princes Highway. It is often used as a route to bypass the township of Berry. It carries Tourist Drives 5 and 6. It is well used. For southbound traffic on the Highway there develops a left-hand turning lane or slip lane for those wishing to enter Bolong Road, and for north bound traffic wishing to enter Bolong Road there are two additional right-hand turning lanes.
For southbound traffic approaching the Bolong Road intersection (which is governed by traffic lights) there is a short curve to the left. In the earlier straight section of the highway and on this left-hand curve there is a downhill gradient. The gradient and curve can be seen in two photographs taken by Mr John Jamieson, the accused's expert. They are Figures 3 and 4 in his report of 20 April 2012 (exhibit D1). Figure 4 was taken about 75 metres north of the Bolong Road intersection "approaching the longest point of the 20 degree left curve". Mr Jamieson has expressed the view that it is likely that at that tangent point the white Fairmont crossed over the concrete median onto the northbound carriageway i.e. the accused kept driving straight ahead as the road curved to the left. Mr Grant Johnston (the Crown's expert) said that the white Fairmont "seemingly failed to negotiate this curve crossing into the northbound lanes by crossing the median near the end of the curve". It is a known fact that by the time the white Fairmont reached the actual Bolong Road intersection it was on the western side of the carriageway travelling at speed.
The effect of this curve and slope should be considered at this point. On 12 September 2010 Mr Craig Livingstone Cooper was motoring to Milton from Sydney. For at least eight years previously he had been living in Milton but working in Sydney. He made return trips between Sydney and Milton weekly. He used the Bolong Road route between Gerringong and Bomaderry. He was stationary in Bolong Road, obeying a red traffic light prior to turning left onto the Highway. He saw the accused's vehicle drive past him at speed on the wrong side of the Highway, from his right to his left. In cross-examination, Mr Cooper said this:
"Q. And at least some of the time you were waiting there you would have been looking to see whether the lights had changed?
A. Normally I look, in fact I always tend to look slightly up the road because the cars come quick, it's quite a steep hill and it's quite blind and I've always been, every time I travel that route I know it's, yeah ..(not transcribable).. or one or two, I'm always aware of making sure the cars have actually stopped that's why I'm half glancing up the road because if they don't stop you know it's straight into your side, so that's the reason."
After the Bolong Road intersection, the Highway travels straight, with only a slight dip after Bolong Road, for about 180 metres. During this section a bridge carries the Highway over Bomaderry Creek. The road is flat over that bridge and continues to be flat onto the Shoalhaven River bridge. For southbound traffic the road then curves to the right as it approaches the Illaroo Road intersection. The roadway then continues to curve to the right through that intersection until it reaches the southern end of the Shoalhaven River bridge. For southbound traffic there is an additional right-hand turning lane for those motorists wishing to enter Illaroo Road. That road is sub-arterial providing access to the suburb of North Nowra, which lies west of the Highway. It forms the stem of a T-intersection on the west side of the Highway on the immediate northern side of the Shoalhaven River bridge. For traffic heading east on Illaroo Road there are two lanes near the intersection. From the northern or left-hand lane a motorist can either turn left to go to the north or turn right to cross onto the Highway and travel south over the bridge into Nowra. From the southern or right-hand lane a motorist must turn right to cross the bridge and head into Nowra. This intersection is governed by traffic control lights.
The speed limit for all sections of the Highway which I have described is 70 km/h. Agreed Facts [14] to [16] are these:
"At the time of the collision the roadway was dry and weather conditions were fine. It was night-time, with artificial street lighting operating in both directions. The surface of the roadway consisted of a bitumen material, which appeared to be in good condition. The surface was dry and free of any substance or contaminants such as oils or liquids. Neither the construction nor the condition of the road surface were contributing factors in the collision.
Traffic flow was moderate in both a northerly and southerly direction.
The Princes Highway is part of the State Highway network and is the major arterial route for vehicles travelling between Sydney, the Illawarra and the Shoalhaven and Far South Coast of New South Wales. Traffic in the northbound direction is generally expected to be heavy on Sunday afternoons for tourist vehicles returning to Sydney."
The Vehicles
Both the vehicles of the accused and of the deceased are described in detail both in the Agreed Facts and in the reports of Messrs Johnston and Jamieson. Suffice it to say that there is no suggestion at all that there was any mechanical or other defect in either of these vehicles which contributed in any way to this collision.
The Accused's Route
In [32] above I set out the opinions of both Mr Jamieson and Mr Johnston as to where it is likely that the accused's white Fairmont crossed over the elevated median strip into the northbound lanes. Mr Johnston then expressed the opinion that the white Fairmont "then steered slightly to the left in order to align with the western of the two right turn lanes into Bolong Road as suggested by the slight kink in the apparent path as demonstrated by the blue line in Figure 3.2" (exhibit 17, [3.5]). A similar "kink" is shown in route of the white Fairmont shown at Figure 2 of Mr Jamieson's report (exhibit D1). That figure also shows the continued route of the white Fairmont had there been no steering to the left, in which case the vehicle would have collided with the western kerb and travelled off the Highway. This indicates an action by the accused to steer the vehicle but is consistent with the opinion expressed by Dr Armin that the accused must have had some awareness to correct his path, as recorded in [26] above.
According to the projections of both Mr Johnston and Mr Jamieson (Figure 3.2 and Figure 2 respectively) the white Fairmont then travelled in a straight line to the point where it collided with the green Falcon. Figure 6 in Mr Jamieson's report (exhibit D1) is a photograph taken facing south on the Highway at the holding line at its intersection with Illaroo Road. He then makes this comment:
"With reference to Figure 6, it is assumed that the errant Fairmont had stayed in a straight course as shown by the red line in Figure 2 and simply continued straight, which meant that it continued across into the southbound carriageway on the bridge approach prior to impact."
In other words, the fact that the white Fairmont travelled back onto the correct side of the carriageway was not the result of any deliberate action of the driver, the accused, but was the result of the geometry of the road, its curve to the right.
When did the Accused's Epileptic Seizure Commence?
The only rational inference to be drawn from the evidence is that the accused's epileptic seizure commenced at some point prior to his crossing the median strip north of the Bolong Road intersection. That finding needs only to be made on the balance of probabilities. It is consistent with the opinions expressed by Dr Armin, which I have already canvassed. It is consistent with some of the earlier collisions in which the accused was involved, that of 19 February 2008 (the second) and that of 27 November 2008 (the fourth). Agreed Fact 19 is that there is a roundabout at the intersection of the Highway and Belinda Street, to the north of the Bolong Road intersection. There is no evidence as to whether the accused had to negotiate that roundabout. The Crown did not seek to establish where the accused made his last delivery and his route thence to the Highway north of the Bolong Road intersection. However, if the accused had negotiated that roundabout, the inference to be drawn is that the seizure commenced after he left the Belinda Street intersection and before he failed to negotiate the left-hand curve of the Highway north of the Bolong Road intersection. There is no physical evidence of where the white Fairmont crossed the median strip. I cannot exclude as a reasonable possibility the opinion expressed by Mr Jamieson that it was at the tangent point of 20º left-hand curve, shortly after a point 75 metres north of the intersection. Indeed that seems eminently sensible to me and I am prepared to so find on the balance of probabilities.
Accused's Speed at the Time of the Seizure
What was the speed of the accused's vehicle before he was overtaken by his epileptic seizure? The simple answer to that question is: I do not know, because there is no evidence on that point. The Crown has not set out to prove what speed the accused was travelling at immediately before the epileptic seizure commenced, but rather the speed of the white Fairmont at the moment that it collided with the green Falcon. I do know that the accused's vehicle was travelling downhill before the Bolong Road intersection and continued to go downhill after crossing the median strip: I again refer to the evidence of Mr Cooper quoted in [33] above. Given the weight of the accused's vehicle (1.514 tonne) and gravity, the downhill slope, unless the accused braked, would have increased the white Fairmont's momentum, its speed. I again point to the opinion expressed by Dr Armin that the accused may have had a tonic episode affecting his right leg which might have caused him to accelerate, his right foot depressing the accelerator pedal, or, alternatively, keeping his right foot on the accelerator pedal, his consciousness being so impaired that he did not know that ought to have braked or stopped.
This lack of evidence as to the speed of the accused's vehicle immediately prior to his suffering the epileptic seizure is, on the defence submissions, fatal to the Crown case for reasons to which I shall, in due course, turn. I accept those submissions. That really is sufficient to decide the current prosecution. However, there are at least two reasons to continue to deal with the Crown case as it was presented to me. The first, of course, is that my view of the relevant law may be wrong. The second is that the Crown and the defence have spent so much time, effort and money on seeking to establish the speed of the white Fairmont at the moment of collision that it would be both improper not to deal with the matter, lest it proceed to a higher court, and churlish not to do so.
Crash Analysis Methodology
There are three "expert" opinions in evidence. They agree on the methodology to be adopted. Mr Johnston's first report (exhibit 17) contains this matter:
"It is common in crash reconstruction to work backwards from rest to pre-impact approach. This is largely due to the fact that usually the best-known piece of information is the rest position of the involved vehicles and at this point all the pre-impact energy of the vehicles has been consumed through the various stages of the event.
In this particular case it is most accurate to commence from where the green [F]ord is known to have impacted the roadside tree after becoming airborne off the side of the bridge. This is due to the fact that the speed at this point can be calculated quite precisely provided the input assumptions are correct.
The vehicle will behave in what is known as projectile motion after it passes over the side of the bridge. That means it will continue moving forward at an approximate constant longitudinal velocity while it will begin to gain a vertical velocity under the influence of gravity when it is no longer supported and is able to free-fall until it hits the tree. This is actually a very accurate method of determining speed provided the impact assumptions of longitudinal travel distance and fall distance can be established."
Mr Johnston then refers to Senior Constable Hamilton's data (on which he was then reliant) and other matter and continues at [5.8] that it is then possible simply to use Newton's Equations of Motion to calculate the vertical speed and time for the green Falcon to fall the measured distance from the edge of the bridge ramp to the point at which the green Falcon initially hit the tree. One can then calculate:
(a) the vertical fall velocity of the tree,
(b) the time in which the fall was made, and
(c) the longitudinal velocity of the vehicle.
Mr Johnston then continues at [5.10]:
"The next step is to consider the speed loss over the 30.2 metres of post impact sliding across the road surface where the rear wheels are said to be locked and leaving visible tyre marks. This calculation again uses Newton's Equations of Motion although in this instance the deceleration rate is the contribution of the rear tyres being locked and unable to rotate and only rolling resistance at the front wheels. This assumes that the driver is unable to actively brake, which appears likely given the impact severity and the fact that his foot was more probably on the accelerator at the time of the collision. In any event the rear end impact would tend to pull the foot away from the pedals."
That allows one, providing for roadway friction and assuming a specific weight distribution between rear and front wheels, to calculate a net breaking rate. Then, again applying one of Newton's Equations of Motion, one can calculate the post impact velocity of the green Falcon.
One then needs to estimate the pre-impact velocity of the green Falcon. Mr Johnston then continues at [5.14]:
"At this is a rear end impact and is effectively collinear I can use the simplified form of the momentum equations for a collinear collision. If I assume a common post impact velocity which is typical for this type of collision as they must initially at least move away as a combined mass then I only need one pre-impact speed in order to estimate the other pre-impact speed."
The "other pre-impact speed" is clearly the speed of the white Fairmont immediately prior to the collision.
The Experts
The experts are Senior Constable Phillip John Hamilton, Mr Grant Lee Johnston and Mr John Robert Jamieson. Senior Constable Hamilton's first qualification is that of a motor mechanic (T144.10) or "motor vehicle technician". He completed an apprenticeship with Peter Warren, Liverpool and at Wetherill Park TAFE. He then worked as a mechanic for Kmart at Merrylands, Lube Mobile at Guildford, Pep Parts at Lansvale, Peter Warren at Warwick Farm and NRMA at both Villawood and Yass. He then joined the NSW Police Force and, after attending the Police College, worked in general duties at Bowral for five months, as lock-up keeper at Finley for three and a half years and, in October 2006, joined the Southern Region Crash Investigation Unit, "just on four years" (T201.47) prior to 12 September 2010. He attended the collision scene at 9.30pm that evening and arranged the taking of a number of photographs and some video footage. He returned to the scene on 25 October 2010 and took certain measurements. He prepared two reports; one commenced on 29 April 2011 (exhibit 12) and the other commenced on 1 August 2012 (exhibit 14).
Mr Johnston could be described shortly as a traffic engineer. He has an extensive curriculum vitae, a summary of which is exhibit 16. The first page of that summary is this:
"I am the Principal Reconstructionist with ARRB (formally Australian Road Research Board, AUS), a former Principal Consultant within the Investigations and Risk Management Group of Transport Research Laboratory (TRL, UK) and also the Principal Consultant of Grant Johnston Consulting Engineers. I am currently or have been a Member of the Institution of Engineers (Aust), a Member of the Society of Automotive Engineers (International), a member and the currently elected President of ASPACI (Australian & South Pacific Associate of Collision Investigators) and a Fellow of AITPM (Australian Institute of Traffic Planning and Management).
I firstly gained a Bachelor of Civil Engineering Degree from the University of NSW, majoring in Transport Engineering and Engineering Construction. I was also awarded a university prize, a dux of the final year Transport Major. My undergraduate research project involved the evaluation of photomontage techniques that visually demonstrate alternative design proposals at an existing intersection.
Thereafter, I completed a postgraduate masters Degree in Traffic and Pavements Engineering, also at the University of NSW. My thesis for the Masters Degree was an in-depth analysis of crashes occurring on the Pacific Highway between 1985 and 1991. The specific crash types I investigated as part of this thesis were roadworks crashes, alcohol involved crashes, speed related crashes, single vehicle crashes, T-junction crashes and fatigue crashes. Specific course work undertaken included Pavement Design, Pavement Maintenance and Evaluation, Pavement Materials, Traffic Engineering, Traffic Signal Design, Street Lighting, Road Safety, Urban and Rural Geometric Design, Traffic Surveys and Transport Planning."
According to that document he has been working in this area of study for approximately 25 years. It is noteworthy that for over 9 years (February 1993 to March 2002) he worked for Jamieson Foley & Associates Pty Ltd or a subsidiary of it. Mr Jamieson is the principal of Jamieson Foley & Associates Pty Ltd. Mr Johnson was a very impressive and careful witness. Because of his greater expertise I shall refer to his opinions offered on behalf of the Crown rather than the opinions of Senior Constable Hamilton, where there is any conflict.
Mr Johnston's first report (exhibit 17) is dated 14 April 2012. In order to prepare his report he carried out an inspection of the collision scene on 17 November 2011 and reviewed the "entire Police Brief of Evidence", which includes "Police videos of their drive throughs with the road closed". Those videos have not been put into evidence. Mr Johnston's second report (exhibit 18) is dated 19 September 2012. Commencing at [1.4] Mr Johnston said:
"As this report is essentially a review of Mr Jamieson's report in order to facilitate direct comparison of the respective opinions by the reader I have structured my report using the same section headings and same order as that adopted by Mr Jamieson in his report.
In the preparation of my previous report I conducted a view of the incident location on 17 November 2011. In the preparation of this report I conducted a further view of the incident location on 5 September 2012. At the time of this most recent view I undertook a number of additional tasks to address possible issues raised by Mr Jamieson including a geometric survey using a Sokkia SET530RK3 total station survey instrument of the impact damage to the tree and the edge of the bridge from which the vehicle became airborne. I also conducted a number of tests negotiating the subject corner from Illaroo Road into the Princes Highway in an instrumented vehicle at different levels of aggression in order to assess possible turning speeds. I also conducted a traffic engineering survey to determine the free speeds of actual vehicles negotiating this corner.
In the preparation of this report I was also recently provided with a further statement of Senior Constable Hamilton which I have also briefly reviewed in this report."
Mr Johnston's third report (exhibit 25) is dated 2 November 2012. This report deals, essentially, with three issues: the concept of Delta-v, the ability of an individual to estimate the speed of a vehicle and an issue of reasonableness.
Mr Jamieson could also be described shortly as a traffic engineer. He also has an extensive curriculum vitae, a summary of which is Appendix B to his primary report of 20 April 2012, which is exhibit D1. His first degree is as a Bachelor of Surveying awarded in 1975. In the following year he completed the degree of Master of Engineering Science (Traffic and Transportation). The first part of his curriculum vitae is this:
"OVERVIEW:
John Jamieson is a qualified engineer and an Invited Fellow of the Institution of Engineers, Australia. He has extensive experience in traffic safety and transport policy.
Following completion of Master of Engineering Science in 1976, he commenced his career in transportation with the NSW Traffic Accident Research Unit. He became involved with all aspects of crash investigation and traffic safety.
In 1982 Mr Jamieson joined the NRMA as a Senior Traffic Engineer with primary duties involving Governmental Committee and Standards Association Representation, and the investigation of hazardous road locations.
He was recruited by Gutteridge Haskins and Davey Pty Ltd, Consulting Engineers, in late 1985 to work in traffic and transportation engineering, including risk assessment.
Mr Jamieson rejoined the NRMA in early 1988, as an Engineering Manager, to specifically address traffic safety issues associated with rural areas.
To meet an increasing demand on his traffic safety expertise, Mr Jamieson established Jamieson Foley & Associates Pty Ltd, Consulting Engineers, in October 1989.
Since 1998 Mr Jamieson has undertaken regular lectures in Traffic Safety and Urban Design to final year Engineering/Surveying students, University of New South Wales.
Mr Jamieson has undertaken several thousand investigations, including a major traffic safety study in the Persian Gulf State of Qatar during 2006-2007.
QUALIFICATIONS:
- Bachelor of Surveying, (B. Surv.) University of New South Wales, 1971-1975
- Master of Engineering Science (Traffic and Transportation), (M.Eng.Sc) University of New South Wales, 1976
- Certificate of Cobol Programming, NSW Institute of Technology, 1980
- Fellow, Institution of Engineers, Australia (FIE Aust)
AFFILIATIONS:
- Member, Institute of Transportation Engineers (PE, USA)
- Member, Institution of Surveyors, Australia (MIS Aust)
- Fellow, Australian Institute of Traffic Planning and Management (FAITPM)
- Elected Secretary AITPM, 1987-90
- Transport Panel, Institution of Engineers, Australia, 1989, 2005 - present.
- Member, Road Safety Working Group, International Road Federation (IRF), 2010 - Present.
To complete his primary report Mr Jamieson carried out an inspection on 18 April 2012. His supplementary report, dated 26 November 2012, is exhibit D2. It comments, essentially, on the opinions expressed by Mr Johnston. Like Mr Johnston, Mr Jamieson was a very impressive witness.
As in any case, the validity of the opinions of an expert depends upon the reliability and accuracy of the evidence the expert relied upon, and of the assumptions that he has made. As this is a criminal prosecution, it is not a case of simply choosing between the opinions of the experts. The Crown bears the onus of proving the case against the accused beyond reasonable doubt. If the defence expert raises any reasonable doubt about the validity of the Crown's expert opinion in this case, then the Crown has failed to satisfy the burden of proof which it must discharge.
Reconstruction (1)
The first thing to ascertain is where did the leading edge of the falling green Falcon strike the riverside tree? Exhibit 20 shows two photographs of the tree, that on the left taken by the police and described as "contemporaneous" and that on the right taken by Mr Johnston on 5 September 2012. The marks left on the tree have been marked A to H on the police photograph. Mr Johnston was able to find marks marked A to F but not that marked H, "although its position could be estimated based on scaling off other dimensions". He did not do so however, "the highest mark would represent the highest possible speed calculation and therefore wasn't considered sensitive to the analysis being performed to try and test the lower bound sensitivity of the data".
The marks A to H on the police photograph are roughly in an elongated oval, with mark A at the 10 o'clock position, then going anti clockwise to mark H which is at the 1 o'clock position. Mr Johnston's survey on 5 September 2012 (which was more accurate than the earlier survey of Senior Constable Hamilton) provides the following data:
Point
Height above Base of Tree
Height below Edge
Base of Tree
0.00m
-4.68m
Mark A
1.60m
-3.08m
Mark B
1.26m
-3.42m
Mark C
1.02m
-3.66m
Mark D
0.69m
-3.99m
Mark E
0.20m
-4.48m
Mark F
1.45m
-3.23m
Mark G
0.96m
3.72m
Mark H
1.75m
-2.93m
Edge of Bridge Deck
4.68m
0.00m
After setting out that data in his second report Mr Johnston continues thus:
"I have now also been provided better images of the tree which clearly show that the vehicle has wrapped around the tree after initial impact along the left side of the roof roughly parallel to the centreline of the vehicle. As a result of the vehicle striking with the centre of mass above the point of initial contact it has continued to rotate forward into longitudinal impact with the roof. Then as a result of the impact being to the left of centre the vehicle has rotated anticlockwise around the tree while continuing to fall under gravity. Figure 2.2 shows the general descending anticlockwise gouging around the trunk of the tree. Figure 2.3 shows the particularly deep gouge where significant amounts of timber have been scraped from the tree as represented by the deep gouge shown between points "D" and "E" in Figure 2.1. This is where I believe the edge of the rear window has cut into the tree as it was falling and rotating anticlockwise around the [trunk]."
Mr Johnston then referred to a diagrammatic demonstration of the likely crash sequence between the vehicle and the tree. He then continued:
"The relevant issues to estimate speed during the phase where the vehicle is airborne using the principal of projectile motion are the longitudinal distance over which the vehicle travels and the fall distance. Essentially the greater the fall distance the lower the speed assuming the same longitudinal distance and conversely the shorter the longitudinal distance the lower the speed assuming the same fall distance. Therefore the two components are reversed in terms of which is more conservative as they increase or decrease in magnitude.
The shortest possible fall distance would be if the front of the vehicle struck the tree at the highest contact point at "H". I do not believe this to be the case as I believe that the vehicle continued to rotate into longitudinal impact with the tree quicker than it was originally falling. I therefore suggest that the leading edge of the vehicle has probably hit the tree somewhere above point "G" giving a total fall distance of the front of the vehicle of around 4.2 metres.
Since I am measuring the fall distance of the front my longitudinal distance is up to the tree. I do not know the exact point the vehicle exited the bridge but in understand this was discernible on the evening. I do know the northern most fence panel and posts taken out by the vehicle as it passed through the fence. The fence contained a total of eight panels. Three remained intact (see Figure 2.5) the last five were taken out by the collision of the two vehicles. Therefore the vehicle must have passed through the fence at least at the post between the fourth and fifth panels north of the bridge as identified by the red arrow in Figure 2.5. It could have been within the fifth panel but at least took out the post by direct impact and the panel by induced damage. My survey showed that this post was 17.8 metres from the impact point on the tree. Therefore a conservative distance assumption is 17.8 metres."
I should add that the "total fall distance" of around 4.2 metres is the sum of 3.72 metres of Mark G plus 0.5 metres being the height of the bumper bar of the vehicle above road level.
Having established a fall distance of 4.2 metres and a longitudinal distance of 17.8 metres, Mr Johnston was able to apply Newton's Equations of Motion to calculate:
(a) a vertical fall velocity at tree of 33 km/h;
(b) length of time of fall of 0.928 seconds;
(c) a longitudinal speed of 69 km/h.
Using previous estimates, the longitudinal speed had been calculated at 71 km/h. Mr Johnston then made this concession:
"This is still effectively the same value as the 70 km/h calculated by Senior Constable Hamilton in his first report. As a result of my own measurements I have conservatively increased the fall distance slightly but I increased the longitudinal distance based on direct measurement. If I am ultra-cautious and keep my previous longitudinal distance of 16.4 metres but use the more conservative fall distance of 4.2 metres I get a speed at exit from the bridge of 64 km/h."
However in the next paragraph of his report Mr Johnston said he would "assume a speed range of 65 to 70 km/h" for the speed of the green Falcon as it left the edge of the bridge.
I have only one difficulty with this part of the reconstruction. The highest mark on the tree, H, is 1.75 metres above the base of the tree. A Ford Falcon is at least that long. Senior Constable Hamilton made some concessions in his oral evidence that raise a doubt. In [3.09] of his report of 1 August 2012 the Senior Constable said:
"Evidence observed in this area [directly adjacent to the tree] on the night of the collision event was highly suggestive the front portion of the Ford Falcon may have scraped over the grass and vegetation prior to impacting with the tree."
In cross-examination he confirmed that and said that in that grass there was found the green Falcon's number place. This was then said (T210.23):
"Q. So did you mean by that, that you thought that because of the vegetation and the grass area being scraped, that the Ford Falcon had scraped along there, before it hit the tree?
A. A very short distance beforehand, it could have. I can't rule that out."
If that in fact happened the fall distance would be 4.68 metres plus 0.5 metres, almost 5.2 metres, not 4.2 metres which could reduce the longitudinal speed. However, Mr Johnston said (at T285.18) that even allowing a greater fall distance one would not probably "get down to the 64".
Reconstruction (2)
The next step is to estimate the pre-impact speed of the green Falcon. This, in my view, is a matter of complete conjecture. That conjecture is not limited solely to the Falcon's velocity but as to which lane it was in and how far back the vehicle was in the lane i.e. what was its run up distance to the point of impact.
Ms Allison Louise Mansell was driving a Toyota Corolla registered number AC 06 RG. She was travelling east along Illaroo Road intending to turn right to go into Nowra. As she approached the intersection at the Highway the traffic light was amber and turned red and she stopped her vehicle. She was travelling in the right-hand lane. In chief, she said she believed that there was no car ahead of her, but she was unsure. She did remember cars in the left-hand lane. The first was a bone coloured 4WD, containing a family, and another car which came up behind it. A dark coloured car came up behind her. The lights turned green and she started to drive forward. This evidence was then given:
"Q. What did you notice about any of the cars that you've just described as you moved off?
A. The left-hand drive, the left-hand side vehicle turned left, I myself progressed forward and the car behind me progressed forward as well, and I don't know where the car on the left-hand side went after that.
Q. And the car behind you that progressed forward was the dark coloured car?
A. Yes.
Q. As you moved into the intersection did you make any observation of the cars beside you?
A. The car next - the car which was behind me moved over to the lane next to the bridge on the left-hand side and started to move on like basically on the side a bit as we started to make the turn.
Q. Did you complete the turn yourself?
A. I didn't - I started to complete the turn when things started to happen.
Q. What happened when you started to complete the turn?
A. I - as I was turning I was just on the bend, I heard an almighty crash and there was this dark shadow coming up behind me in the - on the - in my rear vision mirror. At that time it started to get - and then within seconds I was pushed up the road. I could feel a car coming beside me, a bone coloured car coming in beside me and I was moving all over the road. I was having trouble to keep my car on the road and then I heard this almighty, I could see that the bone car was moving over towards the bridge and I heard an almighty crash and I saw a flash of lightening, like a red flash and everything just went dark.
Q. The dark car that had moved from behind you to beside you as you were turning the corner for what distance did it travel beside you?
A. Not very long it was only a matter of seconds and it just disappeared.
Q. At the time that the dark car was beside you did you notice anything about its speed?
A. He was just travelling at a normal speed that you would travel round there he was not going fast because it was such a short distance you could not pick up much speed.
HIS HONOUR
Q. When you said he was beside you, on what side of your car was his?
A. He was on the passenger's side.
HIS HONOUR: On the left-hand side. Yes."
Ms Mansell's Toyota was not struck by any vehicle. Something like a shockwave may have propelled her car forward. She stopped her car on the left-hand lane of the bridge. Her position on the bridge is marked on the photogrammetric plan, which is exhibit 5. The inference to be drawn is that the dark car which pulled up behind her and after moving off started to overtake her on the left-hand side was the green Falcon. In cross-examination, Ms Mansell said the dark car may have been dark blue. The photographs make it very difficult to ascertain whether the green Falcon was in fact dark green or dark blue.
Later in cross-examination, Ms Mansell admitted that she made a statement to the police on 24 September 2010, 12 days after the collision. She admitted that in the statement she said that "There were a few cars in front of me in my lane as well as cars in the left lane". If there were a "few cars" in front of Ms Mansell's, then there were at last two, if not more ahead of her. That means that the green Falcon was at least the fourth car back from the holding line.
Another problem which arises from Ms Mansell's evidence is that the gouge mark and short tyre marks on each side of it (representing a point where, immediately after the collision, the white Fairmont mounted for a short time the rear of green Falcon, driving its undercarriage down onto the roadway) is in the right-hand lane rather than where one would expect it to be if it were overtaking Ms Mansell's on her left.
Mrs Frederica Tannock was driving a white Ford Laser along Illaroo Road on the evening of the collision. She and her husband had been at the North Nowra Golf Club on Illaroo Road. She was motoring home. The lights were red at the intersection with the Highway. She was driving in the left-hand lane. When she pulled up there was one vehicle in front of hers, indicating that it would turn left. Mrs Tannock intended to turn right. She could remember headlights "coming through" but was unable to say how many cars were behind her. The vehicle in front of her was not a bone coloured 4WD, but a light coloured sedan. When the lights turned green, Mrs Tannock moved off after the car in front of her but had had to wait as that car made a left-hand turn. Two cars in the right-hand lane turned right. She then said:
"... As those first two cars went around the corner after the light went green and we had to wait out - the car in front of us to make that left-hand northbound turn, we were then able to follow as well but as we went onto the intersection a matter of maybe 6 foot that's when the white Ford Falcon came, the accused came in front, nearly missing us and well it looked like then we followed, so the other two cars onto the bridge.
CROWN PROSECUTOR
Q. So the white Ford came directly in front of your car?
A. Directly in front of our car.
Q. You're about 6 foot into the intersection at that point?
A. Yes about that, had we been a few seconds earlier it would have collected us for sure."
This evidence suggests that Ms Mansell had stopped at the holding line and that the green Falcon was second in the right-hand lane but that, of course, is inconsistent with what Ms Mansell told the police on 24 September 2010. Mrs Tannock's evidence suggests that it was impossible for the green Falcon to have been in the left or kerbside lane.
Ms Amanda Sutton, the victim who suffered grievous bodily harm, made a statement to police on 3 May 2012, the second day of the trial. It was admitted into evidence by consent and she was not required for cross-examination. The statement is exhibit 11. The substance of the statement is this:
"About 6.50pm on Sunday 9th September 2010 I was at my friend Tim Ioannou's house which is only about 2 minutes drive from the collision scene.
We left his house to travel into Nowra to get Pizza. We turned left out of his street onto the Illaroo Road and got stopped at the traffic lights at the Princes Highway. I can't recall the lane our car was in but I'm reasonably certain it was the lane closest to the guttering.
We were stopping there for a short time, and I remember moving forward, but I don't recall seeing the lights go green. The next thing I remember is things going black and a loud bang.
I recall waking up in the water and taking my seatbelt off, before climbing out and getting to the surface. I remember getting to a rock and yelling for help. I remember someone touching me on my shoulder and then nothing else after that."
She was "reasonably certain" that the green Falcon was in the kerbside lane, which is inconsistent with the evidence of Mrs Tannock.
Mr James Henry Fullard was driving a Toyota Prado south along the Princes Highway on the evening of the collision. When he reached the intersection of the Highway and Illaroo Road he stopped in obedience to an amber traffic light. He was in the right-hand of the two lanes for traffic heading south. On his right was the right turning lane and then the median strip. There was one small vehicle in front of his but there was no vehicle in the right turning lane. He saw two cars turn right out of Illaroo Road, the first car was a "little Toyota or something like that", white in colour, which could be a description of Ms Mansell's vehicle. It was followed by a "dark" coloured Falcon. He also saw a "normal sedan" turn left out of Illaroo Road. He saw a "dark coloured vehicle" approaching the intersection from the north on his right side. He saw it collide with the second of the two right turning vehicles, the Falcon. In chief, he was shown photographs, already in evidence, of the white Fairmont and said that that was the vehicle which collided with the Falcon, even though earlier he had described the accused's vehicle as "dark coloured'. In cross-examination he admitted that in a statement to the police made on 24 September 2010 he described the Falcon as "dark blue". Mr Fullard's evidence is consistent with that of Mrs Tannock but is not consistent with that of Ms Mansell in cross-examination or with that of Ms Sutton.
Mr Arthur Timbery was also motoring south on the Highway on the evening of the collision. He was driving in the left-hand or kerbside lane, "beside the fish market". He stopped at the intersection with Illaroo Road in obedience to the traffic lights. His was the first vehicle in the left lane, so he had stopped at or near the holding line. He said that "there were about four cars [which] came down the hill from that direction [Illaroo Road] onto the bridge". In his next answer he said there were "three or four cars" turning right out of Illaroo Roads. He then gave this evidence:
"Q. And did you observe those cars as they came from Illaroo Road direction?
A. Yes I did.
Q. And did you notice anything about them in particular?
A. No they were just going in a steady flow.
Q. Your lights eventually turned to green?
A. Yes.
Q. And did you move forward?
A. Yes I was just about to take off I'd gone a couple of feet and then the car sped past me.
Q. And that was a white Falcon sedan?
A. Falcon sedan.
Q. And from what direction did he come?
A. It came from the northerly direction behind our cars and sped past me and tried to get into the lane in front of me.
Q. When it came in front of you what happened then?
A. It was just an horrific crash.
Q. And did you see what it crashed into?
A. It was a blue station wagon and there was another darker colour car in front of them and then the white station wagon which was up the front, I don't know - it was just another car in the right lane and it just happened so quick that basically I just seen the car coming past me and by the time I was about to think of what was going to happen, it just basically happened, it was just that fast. It smashed into the back line of the - I believe it was the station wagon."
In cross-examination Mr Timbery said that the first car to turn right was a small white Toyota that "actively got pushed along the bridge". He was then taken to a statement he made to the police on 17 September 2010, five days after the collision. He agreed that in the statement he said:
"There was only about three or four cars that came from Illaroo Road, I think that was a little grey car, a small white car and I believe there may have been another car but I can't remember what it was".
Mr Timbery's evidence about the number of cars turning right out of Illaroo Road is inconsistent with that of both Mrs Tannock and Mr Fullard.
His evidence also raises another issue. His evidence is that the lights in front of him turned green and he started to move forward before the collision i.e. when the green Falcon was still turning right. Was the green Falcon "running an amber light"? That is also hinted at by an answer given by Ms Mansell in cross-examination:
"Q. Can I ask you this Ms Mansell you gave evidence initially that when you came to a stop at those set of traffic lights I think you said that you thought that you were up the front?
A. I was very confused on that point but I realised because I've been under so much stress that I may have been slightly incorrect. I realised as I approached the bridge there were cars in front of me and it's a very, very short span that we get and I believe I was at the very, very front of those lights but even though I did put differently in my statement I do admit that."
Her evidence is that the green light for those travelling east in Illaroo Road is only for a "very, very short span". If the green Falcon was at the end of the queue turning right, the lights about to change to, or changing, amber one might infer that it would be driven as quickly as possible through the intersection.
Mr Tristan Robert Pantling was driving his Mitsubishi panel van north on the Princes Highway on the evening of the collision. His wife Shiner Jane Pantling was in the front passenger seat. He crossed the northbound Shoalhaven River bridge and stopped at the traffic lights governing the intersection of the Highway and Illaroo Road. He was in the right-hand of on two northbound lanes. His was the first vehicle in that lane, "at the front of the line". In cross-examination Mr Pantling gave this evidence:
"Q. Do you recall now how many cars you saw turning from that road onto the highway?
A. No but I'd say - I would say there was probably more than five.
Q. Did you see the five cars turn onto the highway before you saw the car that was rear-ended?
A. Yes, I believe the car that was rear-ended was either the last or second last round the corner. I would say yeah, last.
Q. Sorry, did you say, "I would say the last"?
A. Yeah, I would've said it would be the last only as I can't - like once the impact had happened my eyes were taken away from the rest of the road, so I followed - as the impact happened, my attention was drawn to the impact and the incident happening to my right as more to what was going on to the left-hand side or what was coming round, but nothing seemed to come round because I then had a green light and was able to go and there was nothing interrupting my northern approach on the Princes Highway.
Q. So as far as you could tell, is this right, there were five cars turning onto the highway--
A. Yeah, approximately--
Q. Let me finish. As far as you can tell, there were five cars turning onto the highway before the car that you saw rear ended turned onto the highway, is that fair?
A. Yes. Yes."
The only re-examination of Mr Pantling was on this issue:
"Q. My opponent put to you that there were five cars before the car rear ended that were turning out of Illaroo and you initially said approximately - and she stopped you and continued with her question?
A. Yes. That's right, it was approximately five, I didn't count but if I was to say it'd be give or more, yeah, I never counted the cars that went across the front of me, but there was a number - a good number of them."
Ms Tegan Renee Collier was driving a green Nissan station wagon north along the Highway on the evening of the collision. She was travelling in the right of the two northbound lanes. She crossed the Shoalhaven River bridge and stopped at the Illaroo Road intersection in obedience to a right traffic light. She appears to have pulled up behind Mr Pantling's panel van - she stopped "a couple of metres back" from the holding line. On her left was a 4WD towing a horse float which both drew her attention and obscured her view of Illaroo Road. She was aware of traffic turning right out of Illaroo Road but her main attention was the 4WD and horse float upon which she and other occupants of her vehicle were commenting. She then gave this evidence:
"Q. Did you look at that traffic at any stage?
A. The traffic coming onto - turning onto the bridge, not until I noticed, I didn't really pay any attention to it until I noticed that it was a dark coloured car going through the intersection quite fast.
Q. And that car appeared to come from the Illaroo Road intersection?
A. I assumed it did because of the angle that it was turning onto the bridge, and they had the right of way so I couldn't imagine where else it would come from.
Q. Did you notice any other car at that time?
A. No. I only - when I saw that one turn on and then like a split second later there was a white car behind it. But I didn't see any traffic prior, turning onto the bridge prior to that dark car, I wasn't paying attention to it.
Q. And when you saw the dark car, when you first saw the dark car, where was the white car?
A. It was, it was behind it kind of turning on the same angle as if they were like one behind each other but very closely going into the left-hand lane of the bridge going south.
Q. Where did the white car come from, from your observation?
A. From the angle that it was I assumed, and because they had the traffic light right of way, I assumed it come from Illaroo Road, but that was just based on the angle that it was on and that they had the right of way of the traffic lights, but I didn't - prior to it actually being right behind the dark coloured car I didn't, I didn't really notice it, my - the reason I looked up because the dark was going so fast and I just assumed that they were -- because we had been sitting at the lights I just assumed that the dark car was trying to get through the lights, you know, on the orange or red, and that's why I noticed it because it was going quite fast, like not the, not the normal speed, and then, you know, I kind of looked at that, and then when we looked again there was a white car right behind it at the same angle, like turning onto the, onto the bridge at the intersection.
Q. And what was the next thing you saw after you saw the white car behind the dark car?
A. We were sitting there and I looked at it and then in a spilt second the dark car had gone over the side of the road, there's a fence there now but there wasn't a fence there at the time, and that had sailed across and then the next thing, the white car had hit the side of the bridge and was in flames."
In cross-examination Ms Collier admitted that she made a statement to the police on 30 September 2010 and confirmed that in that statement she had said that she saw a dark coloured car turn right from Illaroo Road to head into Nowra and that "[t]his car stood out because it seemed to be going very fast". She also said in that statement that the dark coloured car came from the left-hand lane of Illaroo Road.
Of all the lay witnesses, Ms Collier is the only one who has stated that the green Flacon was travelling other than a car normally would when turning right out of Illaroo Road. It was the speed of the green Falcon which drew her attention, not either noise emitted by the white Fairmont as its advent. I have no reason to doubt Ms Collier's evidence and it is consistent with the "hints" I referred to in [63] above.
Ms Leeza Jane Doohan was the proprietor of a business known as "Perfect Catch" situated on the northeastern side of the Shoalhaven River bridge. This business was that described by Mr Timbery as "the fish market". Normally the business closes at 6.30pm on Sundays but business was brisk and she did not close "until about 7" pm. She was standing outside of her shop next to her motor vehicle, talking with an employee, Estelle, and Boris, a neighbour. She was facing north. She heard a noise being emitted by a car. She turned to her left and saw that traffic from Illaroo Road "had the green light" and was travelling through the intersection. She then gave this evidence:
"Q. What happened then?
A. And then we seen a white car come through the intersection and knew straightaway that it wasn't going to make it clear through the Illaroo Road traffic. Then there was one bang pretty much instantly and then me and Boris ran into the road where it occurred.
Q. That bang, did you see what caused that bang?
A. There was a dark coloured car and a white car that came through the intersection had gone, hit the - from behind.
Q. So the dark coloured car that you saw hit by the white car?
A. Yep.
Q. Did you see that dark coloured car travelling prior to it being hit by the white car?
A. I did.
Q. At what point did you first see that dark coloured car travelling before it was hit by the white car?
A. As we were standing there talking, we were facing the Illaroo Road traffic and they were coming - it was coming down with the Illaroo Road traffic onto the bridge.
Q. Did you notice anything about the way in which that dark car that was hit from behind was travelling as it came through the intersection before it was hit by the white car?
A. I would say it was travelling normally. There was [sic] cars in front of it. There was [sic] cars behind and to the side.
Q. When you say, "I'd say", did you actually see it travelling?
A. I did."
She then said that the "dark car" was in the left-hand lane as it turned, which is consistent with the evidence of Ms Mansell and may be inconsistent with the evidence of Mrs Tannock but is inconsistent with the marks left on the road surface immediately after the impact.
In cross-examination Ms Doohan said that the car park at the front of her shop can be entered by traffic heading south down the Highway. The area of the car park at the front of her shop is between 1.5 metres and 2.0 metres below the level of the street. She would not agree that it was dark but eventually agreed that the main lighting available at the time of the collision was artificial street lighting. She would not agree that, given that the place she was standing was below street level and given that the scene was artificially lit, she did not have a clear view of what was happening on the Highway. However I have difficulty in accepting that Ms Doohan did have a clear view of what was happening on the Highway. Ms Doohan agreed that it was the vehicle noise which she head that made her look towards Illaroo Road which raises as a possibility that such vehicle noise was being emitted by the green Falcon. However, she then said that she was unable to say whence the noise came. Ms Doohan's attention was then drawn to a statement she made to the police on 20 September 2010. In that statement she said:
" "I'm used to the normal traffic sounds out of the front of the shop, but one sounded like it was going much faster. The noise made me look because I was worried if it was going down Illaroo Road it might not be able to stop.""
Ms Doohan soon after conceded that the vehicle noise she heard could have been either from Illaroo Road or the Highway. Shortly after that this evidence was given:
Mr Johnston addressed this issue in his final report of 2 November 2012 (exhibit 25). He was involved in an "experiment" conducted "as part of the test track day of the third International Road Surface Friction Conference" which was held on the Gold Coast between 15 and 18 May 2011. The paper resulting from this experiment is annexed to exhibit 25. That paper comments on two earlier studies, one American and one British. That comment is this:
"Since the date of the test runs undertaken in May 2011, the authors have became aware of two previous, and largely similar, experiments conducted in the USA (at the World Reconstruction Exposition in Texas in September 2000) and in the United Kingdom [at the Institute of Traffic Accident Investigators (ITAI) biennial conference in September 2007]. Both experiments were reported in the ITAI journal Impact (Bartlett 2002, Croft 2007).
Although the authors had no prior knowledge of these previous international experiments when devising their local experiment in Australia, the objectives and testing scenarios have much synergy.
In the US experiment (2000), delegates attending a scheduled crash-test of a car into a police were asked to estimate the speed of a passing car (side-on view), as well as recollecting its colour and the number of doors. Delegates were given no prior warning of the vehicle or what was required of them. Additionally, delegates were asked to note whether they had ever used a speed (radar) gun before to measure the speed of vehicles. Further test runs were then made using a white panel van, with the delegates being given an advanced warning prior to each test run. The main results / findings for the test involving the car were as follows:
The actual speed of the car was measured at 37 mph (59 km/h).
A range of speed estimates was reported between 20 mph (32.6 km/h) and 60 mph (97.7 km/h).
The average reported speed was 36.5 mph (59.5 km/h).
26% of respondents thought the speed of the car was 'slow', 65% thought it was 'medium' and 9% thought it was 'fast'.
The experiment concluded that:
'though individual speed estimates were highly variable, the average values for the group were very close to the actual value'
'regardless of warning status, individual stationary witnesses without accurate means of evaluating a vehicle's speed should not be relied upon to provide accurate speed estimates for analytical purposes'
the standard deviation of speed estimates when delegates were not given prior warning (i.e. the car test) was almost twice that found when delegates were warned that a test was about to commence (i.e. the van tests).
There was no differentiation between the delegates that had used a speed (radar) gun and those that had not.
The UK experiment (2007) comprised six test runs, the first of which involved the side-on view of a police car travelling at 45 mph (72 km/h). The vehicle also momentarily activated its two-tone horns to initially attract delegate attention. The five tests where prior warning was provided comprised two tests involving a car [at 30 mph (48 km/h) and 48 mph (77 km/h], two tests involving a motorcycle [30 mph (48 km/h) in top gear and 32 mph (51 km/h) in 2nd gear] and a single test involving a panel van at 38 mph (61 km/h). It appears that approximately 40 delegates provided speed estimates.
The conclusions of the UK experiment were as follows:
as with the US experiment (2000) the UK results 'indicate that individual estimates are unreliable although, where the speed of the vehicle is about 30 mph, the average speed estimate is seen to be in good agreement. However, as the vehicle speed increases the accuracy of the average estimate worsens' (and tends to be an under estimate)
the estimates of speed for the motorcycle were unaffected by the gear selection
the size of the vehicle / machine did not appear to adversely influence the ability to estimate speed."
Both the American and British experiments involved a biased sample. Mr Johnston gave this evidence:
A. ... The other two studies are by a sample of people who are police or road safety practitioners so they would -- the UK and the USA study to be honest are more biased. They are in fact people who would have had a better--
Q. That's what I was going to ask you about. The US study you said was taken at the World of Reconstruction exhibition in Texas?
A. Yes.
Q. The UK one was the Institute of Traffic Accident Investigators?
A. Yes.
Q. So both those conferences were for people in your position?
A. Yes.
Q. So it's necessarily a biased sample again?
A. Yes, but we found we're not very good, but that's a separate point.
YEHIA: That is precisely the point in some respect. Has your Honour--
HIS HONOUR
Q. Yes, but I mean you're more likely to have some idea than say a 19 year old P plate driver who is going; correct?
A. Correct.
Q. That's my point?
A. Yes."
The experiment carried out by Mr Johnston and a colleague also involved a biased sample. The word "biased" is not used here in any pejorative sense. Those attending the Conference at which this experiment was conducted involved "road engineers and road practitioners" from around the world, who were involved in building road surfaces and airport runways and the like. These practitioners "may have a civil engineering degree or a materials degree or a science degree or a lot of experience in that area" but not all of them had formal tertiary qualifications. Mr Johnston then gave this evidence:
"Q. So some of these people would be highly attuned to motor vehicles and some less so?
A. The experience was probably not. We have one police officer, ex-police officer who was there and we looked at his data and he was no better, but that's a sample of one. The others wouldn't generally be doing speed related studies but they are people who deal with roads and highways so they would certainly be aware of speeds and so forth.
Q. The point I was making is this isn't a sample of a butcher, baker, candlestick maker, male and females from the ages of 19 to 80?
A. No.
Q. So it's a biased sample?
A. It is a biased sample of at least educated people."
At the May 2011 Conference there were 6 test runs, designated A to F. For each run each delegate was asked three questions. One question on each run asked the delegate to identify the speed of the test vehicle at a recording point. The results are these:
Run A
"Measured speed = 80 km/h
68 of 74 delegates (92%) provided an estimate of speed
All returns fell within a range 50-120 km/h
Average of estimated speeds = 77.9 km/h (standard deviation = 17.7 km/h)
25 of 68 delegates (37%) correctly estimated the speed at 80 km/h
3 of 68 delegates (4%) were within ± 5 km/h of the speed
14 of 68 delegates (21%) over-estimated the speed of the vehicle
26 of 68 delegates (38%) under-estimated the speed of the vehicle"
Run B
"Measured speed = 60 km/h
71 of 74 delegates (96%) provided an estimate of speed
All returns fell within a range 30-80 km/h
Average of estimated speeds = 56.5 km/h (standard deviation = 13.5 km/h)
28 of 71 delegates (39%) correctly estimated the speed at 60 km/h
The estimates of 6 of 71 delegates (9%) were within ± 5 km/h of the speed
9 of 71 delegates (13%) over-estimated the speed of the vehicle
21 of 71 delegates (39%) under-estimated the speed of the vehicle"
Run C
"Measured speed = 28 km/h
70 of 74 delegates (95%) provided an estimate of speed
All returns fell within a range 15-50 km/h
Average of estimated speeds = 31.1 km/h (standard deviation = 9.8 km/h)
1 of 70 delegates (1%) estimated the exact vehicle speed correctly
27 of 70 delegates (39%) were within ± 5 km/h of the speed of the vehicle
24 of 70 delegates (34%) overestimated the speed of the vehicle
18 of 70 delegates (26%) under-estimated the speed of the vehicle"
Run D
"Measured speed = 47 km/h
70 of 74 delegates (94%) estimated the speed
All of the returns fell within the rage 40-70 km/h
Average estimated speed = 48.3 km/h (standard deviation = 10.2 km/h)
0 of 70 delegates (0%) estimated the exact vehicle speed
25 of 70 delegates (36%) were within ± 5 km/h of the speed of the vehicle
19 of 70 delegates (27%) over-estimated the speed of the vehicle
26 of 70 delegates (37%) under-estimated the speed of the vehicle"
Run E
"Measured speed = 45 km/h
72 of 74 delegates (97%) estimated the speed
All of the results were within the range 25-70 km/h
Average estimated speed = 44.4 km/h (standard deviation = 11.3 km/h)
4 of 72 delegates (6%) estimated the vehicle speed as 45 km/h
40 of 72 delegates (56%) were within ± 5 km/h of the speed of the vehicle
13 of 72 delegates (18%) over-estimated the speed of the vehicle
15 of 72 delegates (21%) under-estimated the speed of the vehicle"
Run F
"Measured speed = 66 km/h
66 of 74 delegates (89%) estimated the speed
All returns fell within the range 30-80 km/h
Average estimated speed = 58/5 km/h (standard deviation = 13.9)
0 of 66 delegates (0%) estimated the exact speed correctly
15 of 66 delegates (23%) were within ± 5 km/h of the speed of the vehicle
7 of 66 delegates (11%) over-estimated the speed of the vehicle
44 of 66 delegates (66%) under-estimated the speed of the vehicle"
The conclusions reached by Mr Johnston and his co-author were:
"The authors believe that the results obtained from this research are consistent with the majority of past research identified in these areas, namely:
Eyewitness estimates of vehicle speed are not grossly inaccurate per se and tend to spread reasonably precisely around a mean (average) value that is close to the measured speed.
Although the majority of observations were found to be within one standard deviation of the measured value, individual outlier estimates can however vary by up to nearly 100% of the measured value, and can be either an under, or over-estimate.
The range of speed estimates found for a particular test run tends to be largest at the highest vehicle speeds.
There appears to be a general tendency for eye witnesses to under-estimate the highest vehicle speeds and over-estimate the lowest vehicle speeds, but this was not found to be a uniform (consistent) and reliable rule.
Accurately estimating the speed of a vehicle is most difficult to achieve when the vehicle is travelling perpendicular to the viewing positions (i.e. directly towards or away from the delegate's viewing position).
Extra stimulus factors (such as driving aggressively and/or using high revs) do appear to lead to delegates slightly over-estimating the vehicle speed, all other things being equal."
The proviso to the fourth conclusion and the last conclusion must be carefully borne in mind.
I turn now to the specific lay opinions in this case. Mr Craig Livingstone Cooper (see [33] above) was 50 years old as at the date of the collision. He had 32 years of road driving experience. He had grown up in Sydney and did "quite a bit of driving around Sydney as a sales rep sort of thing". He has driven sedans or 4WDs for most of his driving career. In the 8-year period he was living in Milton he drove between 200 and 300 kilometres per week. He then gave this evidence:
"HIS HONOUR
Q. In the course of your driving experience Mr Cooper have you ever found it necessary to estimate the speed of other vehicles?
A. I don't think you'd say it would be necessary because I'm not a highway patrolman but as an observer driving my own car and witnessing other people's speeds around me I'm fairly competent I would say at estimating speeds around me driving on the highway because I've driven that much kilometres.
Q. For example when you're driving are you aware whether you are driving at 60, 70, 80 or 100 or 11?
A. Yes definitely.
Q. And are you able to estimate the speed of cars that overtake you?
A. Yes.
Q. Or coming in the opposite direction?
A. Yes.
CROWN PROSECUTOR
Q. Did you estimate the speed of the white car on 12 September 2010?
A. I estimated it was well in excess of 130 and leaning towards 140.
HIS HONOUR
Q. That kilometres per hour?
A. Yes.
Q. What in particular made you mistake that estimate?
A. Because I saw it coming so fast down the hill and so fast in front of me it really made my - it just was a very sharp, quick observation because of the pact that I could see it was travelling at. Yeah I don't, yeah it was - it was in that - in the situation where we were it was extremely fast."
He then said that over the distance of 200 to 250 metres the white Fairmont was under his observation for about four seconds. He was driving a Range Rover Sport. His vehicle was stationary in the slip lane, the second in line waiting to make a left-hand turn out of Bolong Road onto the Highway. The vehicle in front of him was a sedan, over the top of which he could see. On his right were "a couple of sedans" over which he could see the Highway to his right. He first saw the white Fairmont "maybe 100ms up the road". Then he saw it pass the Bolong Road intersection and he observed it travelling south for "about 150m".
Speed or velocity is the product of distance and time. To make an accurate assessment of speed one must be able to make an accurate estimate of both distance travelled and the time over which that distance was travelled. When one consults exhibit 5 (the photogrammetric plan) and Mr Jamieson's photographs (exhibit D1, Figure 3 and Figure 4) it appears to me unlikely that Mr Cooper could have seen 100 metres up the highway from his position. Even if I be wrong in that, 250 metres travelled in 4 seconds gives a speed of 225 km/h, which, in light of Mr Johnston's calculations is absurd. The highest speed estimated for the white Fairmont was 149 km/h. Mr Johnston's preferred view was 130 km/h. Mr Cooper's estimates of both distance and time must be inaccurate. I can place no weight whatever on this estimate of "in excess of 130[km/h] and leaning towards 140[km/h]". The stimulus of what very shortly thereafter occurred may well have led to overestimation. However, it is the internal inconsistency of his estimates that leaves me with no confidence in his estimate of speed.
Mr James Henry Fullard (see [61] above) at the time of giving evidence (2 May 2012) had 50 years of driving experience. He had driven to and from work for each of those 50 years, 6 days each week. For 33 years he had worked for Cleary Bros initially as a plant driver and more recently as a construction foreman. Some times he might have to drive 150 kms each way daily to or from a construction site. He had driven plant for 18 or 19 years and was foreman for about 15 years prior to retiring in 2007. At one stage he had a C class licence. His opinion was that the white Fairmont was travelling well in excess of 100 km/h, probably 140 km/h. He indicated on what became exhibit 8 a position 136m behind him when he first saw the white Fairmont (T44.18). Initially Mr Fullard saw that vehicle in his rear vision mirror and then turned to his right to look out the driver's window and could see that vehicle over the top of the "little car" in front of him. He was driving a Toyota Prado. The white Fairmont was under his observation for "probably four or five seconds" prior to the collision (T48.44).
From the front of Mr Fullard's vehicle to the point of impact is, on my reading of exhibit 5, 40 metres per second. Accordingly, the white Fairmont was under his observation over a distance of 176 metres. Again, there may be internal inconsistency. 136m travelled over 4 seconds gives a speed of 122.4 km/h. 136 metres travelled over 5 seconds gives a speed of 97.92 km/h. 176 m travelled over 4 seconds gives a speed of 158.4 km/h and the same distance travelled over 5 secs gives a speed of 126.7 km/h. Neither of the later speeds is near 140 km/h, although the mean (142.5 km/h) is. However the path of the white Fairmont was perpendicular to the path / direction of Mr Fullard and the fifth conclusion of Mr Johnston and his co-author is that is the most difficult position to be in to estimate accurately the speed of an oncoming vehicle.
I am not persuaded beyond reasonable doubt to adopt Mr Fullard's estimate of speed of 140 km/h to convict the accused. In light of all the evidence concerning the reliability of lay opinions as to speed it would be unsafe and unsatisfactory to do so, especially when an analysis of for reconstruction evidence does not permit such a finding. I accept that Mr Fullard assessed the white Fairmont as travelling "very fast" in an area where the speed limit was 70 km/h and in excess of 100 km/h, but that might only be 110 km/h. This finding together with that I made at [80] above mean that the accused is entitled to a finding of "not guilty" in respect of each count in the indictment. Even were I to have found the facts otherwise, the accused would be entitled, nevertheless, to be found not guilty, on the case presented by the Crown, as a matter of law.
The Relevant Law
Jiminez v R [1992] HCA 14; 173 CLR 572; 106 ALR 162 dealt with a former version of section 52A when the offence was known as "culpable driving". The then provision is set out in [8]:
"The offence of culpable driving is created by s.52A of the Crimes Act 1900 (N.S.W.) and is relevantly as follows:
(1) Where the death of .. any person is occasioned through:
(a) the impact with any object of a motor vehicle in or on which that person was being conveyed (whether as a passenger or otherwise);
...
and the motor vehicle was at the time of the impact ... being driven by another person:
...
(f) at a speed or in a manner dangerous to the public,
the person who was so driving the motor vehicle shall be guilty of the misdemeanour of culpable driving.
...
(3) It shall be a defence to any charge under this section that the death .. was not in any way attributable .. to the speed at which or the manner in which the vehicle was driven."
That provision and the current provisions contain the same elements, in particular that the motor vehicle was "being driven" "in a manner dangerous" to others/the public by the accused person. The reasoning in Jiminez must be applied to the current provision.
In that case, the applicant set out to travel south in his BMW sedan from the Gold Coast to Sydney about 11pm on 13 June 1988. He had slept for four hours that afternoon, commencing at 5pm. A passenger drove the vehicle for the first 400 kilometres during which time the applicant slept. At about 3.30am on 14 June 1988, the applicant took over the driving, somewhere near Coffs Harbour. At about 6am at Eungai Creek, south of Macksville and 30 kilometres north of Kempsey, the vehicle failed to take a moderate right-hand curve in the highway, travelled onto the eastern gravel shoulder and then collided with a tree, and then two other trees. The front seat passenger was killed. The only feature of the applicant's driving which was said to bring it within s 52A was that the applicant felt tired and drowsy and fell asleep. The applicant had been thinking of stopping at the next town, presumably Frederickton or Kempsey. The applicant was found guilty by a jury in this Court and his appeal to the Court of Criminal Appeal was dismissed. He was granted leave to appeal to the High Court, his appeal was allowed, his conviction was quashed and the High Court entered a verdict of acquittal.
Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ delivered a joint judgment. Commencing at [11] they said:
"The offence of culpable driving as it applies in the present case requires a motor vehicle to have been driven in a manner dangerous to the public at the time of the impact which occasioned death. Even if the motor vehicle was not being driven dangerously at the precise moment of impact, a preceding period of driving in a dangerous manner may be so nearly contemporaneous with the impact as to satisfy this element of the offence. Contemporaneity is a question for the jury. See McBride v. The Queen [1966] HCA 22; (1966) 115 CLR 44, at pp 47, 51, 52.
In the South Australian case of Kroon (1990) 52 A Crim R 15, at p 18, King C.J. observed that an offence such as culpable driving requires the relevant driving to have been voluntary and that driving while asleep does not constitute a voluntary act. Thus, he said, "a driver cannot be convicted of causing death or bodily injury by dangerous driving in respect of a period during which the driver is asleep". But he went on to say, at pp 18-19.
"Every act of falling asleep at the wheel is preceded by a period during which the driver is driving while awake and therefore, assuming the absence of involuntariness arising from other causes, responsible for his actions. If a driver who knows or ought to know that there is a significant risk of falling asleep at the wheel, continues to drive the vehicle, he is plainly driving without due care and may be driving in a manner dangerous to the public. If the driver does fall asleep and death or bodily injury results, the driving prior to the falling asleep is sufficiently contemporaneous with the death or bodily injury (McBride, per Barwick C.J. at 51) to be regarded as the cause of the death or bodily injury.
.. The cases must be rare in which a driver who falls asleep can be exonerated of driving without due care at least, in the moments preceding sleep."
As King C.J. recognizes, where the question is whether a driver who falls asleep at the wheel is guilty of driving in a manner dangerous to the public, the relevant period of driving is that which immediately precedes his falling asleep. Not only must the period be sufficiently contemporaneous with the time of impact to satisfy the requirement of s.52A but the driving during that period must be, in a practical sense, the cause of the impact and the death. The relevant period cannot be that during which the driver was asleep because during that time his actions were not conscious or voluntary. And, for the reasons which we have given, if the driver's actions upon waking up amount to no more than an attempt to avoid an accident, it cannot be that period of driving."
At [14] their Honours quoted a dictum of Lord Goddard CJ in Hill v Baxter [1958] 1 QB 277, where his Lordship said at 283:
"I agree that there may be cases where the circumstances are such that the accused could not really be said to be driving at all. Suppose he had a stroke or an epileptic fit, both instances of what may properly be called acts of God; he might well be in the driver's seat even with his hands on the wheel, but in such a state of unconsciousness that he could not be said to be driving".
At [16] their Honours said:
"But if a person's condition is such that his actions are unconscious or involuntary, it does not matter what the cause is: he cannot be found guilty of an offence, whether statutory or otherwise, unless the acts which constitute it have been done voluntarily. See Reg. v. O'Connor [1980] HCA 17; [1980] HCA 17; (1980) 146 CLR 64. As we have said, a driver who drives when tired or drowsy may, depending upon all the circumstances, be guilty of driving in a manner dangerous to the public. But if he does fall asleep, his actions during the period of sleep are neither conscious nor voluntary."
McHugh J divided his judgment into a number of sections. Under the heading "Being driven" his Honour said:
"On the hearing of the appeal in this Court, Mr Howie Q.C., for the Crown, accepted that, on a charge under s.52A, there must be a voluntary act of driving. In his written submissions, Mr Howie Q.C. also conceded that a "driver who is asleep is not then driving in a manner dangerous to the public". But, basing himself on the decision of the Court of Criminal Appeal of South Australia in Kroon (1990) 52 A Crim R 15, at p 18, he contended that a "driver who falls asleep may have been driving in a manner dangerous to the public .. if he knew or ought to have known that there was a significant risk of (his) falling asleep"."
In following paragraphs he stated that the concession made by the Crown was "debatable" and then debated it, but eventually said:
"I do not think that anything in the foregoing discussion is inconsistent with the basic principle of the criminal law that an act or omission of a person cannot be made the subject of a criminal charge unless the act or omission was voluntary Ryan v. The Queen [1967] HCA 2; (1967) 121 CLR 205, at p 213; Reg. v. O'Connor [1980] HCA 17; (1980) 146 CLR 64, at pp 76-77, 80. The issue under s.52A is not whether that general principle applies to the statute - clearly it does; the issue is whether upon the proper construction of that section the vehicle was "being driven" by the accused "at the time of impact"."
The actions of the accused in the present case, after he started to suffer from his epileptic seizure are not voluntary: the opinion of Dr Armin confirms that. The Crown has not sought to prove the circumstances of aggravation prior to the accused's commencing to have the epileptic seizure. The Crown case must, accordingly, fail even if it could prove at the moment of impact, after the accused had suffered his epileptic fit, after his vehicle crossed onto the incorrect side of the carriageway, the speed of the white Fairmont was greater than 115 km/h.
In R v Gillett [2005] NSWDC 20 a similar case arose. The accused in that case was charged with three counts of dangerous driving causing death. His car collided with a vehicle containing the Howie family, three members of which died. Commencing at [10] Berman DCJ outlined the case before him:
"The accused's case is that shortly before the collisions on 2 May 2003, which have led to the charges he now faces, he suffered a fit or seizure which meant that his actions were involuntary, and so the real issue in this case is whether the Crown has proved beyond reasonable doubt that the accused was acting voluntarily at a relevant time. In order to determine this issue 3 particular questions have to be answered because the Crown has put its case in 3 ways.
The Crown's primary position is that the accused suffered no fit or seizure or other similar medical event at any time during the course of his driving that afternoon. If I were to be satisfied beyond reasonable doubt that that was the case then I would find that the accused was driving voluntarily and therefore, in the circumstances of this case, find the accused guilty on each of the 3 counts.
However, in the event that I was not satisfied that the accused had not had a fit or seizure the Crown nevertheless says that I would still find that the accused was driving voluntarily. If I were to conclude that there is a reasonable possibility that the accused suffered a complex partial seizure or other episode which affected his consciousness, the Crown nevertheless says that given the accused's awareness of what he was doing and ability to control his motor vehicle, I should still find beyond reasonable doubt that the accused was driving voluntarily that afternoon.
The Crown has a third way of putting its case. I would consider this alternative in the event that I was not satisfied beyond reasonable doubt that the accused was driving voluntarily in the time immediately preceding the collision with the Howies' car. The third alternative I must consider is whether, at a time shortly before the collision, when the accused was driving voluntarily, he nevertheless was driving dangerously because of the risk that he would suffer a fit or seizure such that he was unable to control his car. If that is so, then the Crown must also prove that the accused did not believe on reasonable grounds that it was safe for him to drive that afternoon. The Crown will therefore have proved its case on this issue if it proves that the accused was driving dangerously because of the risk that he would suffer a seizure and either the accused did not believe that it was safe for him to drive or there were no reasonable grounds for him to have that belief."
His Honour held that he could not be satisfied beyond reasonable doubt that the accused did not suffer a complex partial epileptic seizure. He also held that the Crown had proved beyond reasonable doubt the third way the Crown put its case.
The accused in that case appealed: Gillett v R [2006] NSWCCA 370. Berman DCJ had applied the test in Jiminez to the current version of s 52A. The Court of Criminal Appeal (McClellan CJ at CL with whom Sully and Hislop JJ concurred) did not hold his Honour to have erred in doing so. The first four holdings contained in the headnote as these:
"(1) The judge found it was the voluntary driving before the impact which in a real and practical sense caused the later impact. The causation test applied and was not erroneous. The danger arose from driving with a medical condition which could bring about a seizure, a voluntary act carrying a risk over and above the risk involved in driving a car.
(2) The question is whether the manner of driving, condition of the vehicle, or the condition of the driver as matters of objective fact made the driving dangerous, which question depends on the circumstances. The belief of the driver is relevant only in assessing honest and reasonable belief. The conclusion that driving with an epileptic condition accompanied by sleep deprivation created a risk over and above the normal risk was both open and correct.
(3) The judge was correct in finding the appellant did not believe his driving was not dangerous based on his lies in his licence renewal.
(4) The standards and guidelines document was relevant and should have been admitted at trial. However, if admitted, the document would not have assisted the appellant."
Each party made written submissions on this legal issue. They are MFI 10 (Crown) and MFI 13 (Defence). Suffice it to say that, in my opinion, were I to follow the Crown's submissions I would fall into error of law because the Crown asks me to take into account as a circumstance of the dangerous driving, driving at more than 115 km/h after the accused suffered the epileptic seizure, after his conduct became involuntary. As was stated in Jiminez, in [12]: "[t]he relevant period cannot be that during which the driver was asleep because during that time his actions were not conscious or voluntary". The arguments advanced by the Crown are arguments only the High Court of Australia could entertain.
Disposal
Daniel Gordon Schilder,
(a) on the charge that on the 12th day of September 2010, at Nowra, in the State of New South Wales, you did drive a vehicle namely, Ford Fairmont AV-64-ZB, when it was involved in an impact occasioning the death of Timothy IOANNOU, and you the said Daniel Gordon SCHILDER were at the time of the impact driving the vehicle in a manner dangerous to other persons, in circumstances of aggravation, namely you were driving the vehicle at the speed that exceeded, by more than 45 kilometres per hour, the speed limit applicable to that length of road, I find you "not guilty". On that charge you are acquitted;
(b) on the charge that the 12th day of September 2010, at NOWRA, in the State of New South Wales, you did drive a vehicle, to wit, Ford Fairmont AV-64-ZB, when it was involved in an impact occasioning the death of Timothy IOANNOU, and at the time of impact the said Daniel Gordon SCHILDER was driving the vehicle in a manner dangerous to other persons, to which you pleaded guilty, you are convicted;
(c) on the charge that on the 12th day of September 2010, at Nowra, in the State of New South Wales, you did drive a vehicle namely, Ford Fairmont AV-64-ZB, when it was involved in an impact occasioning grievous bodily harm to Amanda SUTTON, and you the said Daniel Gordon SCHILDER were at the time of the impact driving the vehicle in a manner dangerous to other persons, in circumstances of aggravation, namely you were driving the vehicle at the speed that exceeded, by more than 45 kilometres per hour, the speed limit applicable to that length of road, I find you "not guilty". On that charge you are acquitted;
(d) on the charge that you did drive a vehicle, to wit, Ford Fairmont AV-64-ZB, when it was involved in an impact occasioning grievous bodily harm to Amanda SUTTON, and at the time of impact the said Daniel Gordon SCHILDER was driving the vehicle in a manner dangerous to other persons, to which you pleaded guilty, you are convicted;
(e) I grant you unconditional bail to appear before me for sentence tomorrow at 10am.
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Decision last updated: 28 March 2013
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