R v Tang
[2019] ACTSC 4
•18 January 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Tang |
Citation: | [2019] ACTSC 4 |
Hearing Dates: | 24, 25, 26 October 2018;15 November 2018 |
DecisionDate: | 18 January 2019 |
Before: | Loukas-Karlsson J |
Decision: | The accused is not guilty of the single count in the indictment dated 20 November 2017 (culpable driving causing grievous bodily harm). |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – Trial by judge alone – Circumstantial Case – verdict – accused found not guilty of culpable driving causing grievous bodily harm |
Legislation Cited: | Crimes Act 1900 (ACT) s 29, 49 Evidence Act 2011 (ACT) s 165 Supreme Court Act 1933 (ACT) s 68C |
Cases Cited: | DPP v Spong [2018] ACTCA 37 El Hassan v R [2007] NSWCCA 148 R v Song (No 2) [2017] ACTSC 148 The Queen v Hillier [2007] HCA 13; 228 CLR 618 |
Parties: | The Queen (Crown) Chi Jun Tang (Defendant) |
Representation: | Counsel Mr J Walker (Crown) Mr R Davies (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Numbers: | SCC 285 of 2017; SCC 286 of 2017 |
Loukas-Karlsson J
Introduction
This is a judge-alone trial conducted pursuant to s 68B of the Supreme Court Act 1933 (ACT) after Chi Jun Tang (the accused) signed an election to be tried by judge alone on 9 February 2018.
The accused is charged with a single offence on an indictment dated 20 November 2017, being that on 17 December 2016 at Canberra, he caused grievous bodily harm to Luke Keir by the culpable driving of a motor vehicle, that is, by driving negligently, contrary to s 29(4) of the Crimes Act 1900 (ACT) (Crimes Act).
The accused was arraigned on 24 October 2018, and pleaded not guilty to the offence.
Pursuant to s 49 of the Crimes Act, the prosecution relied on a statutory alternative to the single count, namely negligent driving causing grievous bodily harm, contrary to s 6(1) of the Road Transport (Safety and Traffic Management Act) 1999 (ACT).
Directions
Section 68C(2) of the Supreme Court Act 1933 (ACT) requires that the judgment in a judge-alone trial include the principles of law applied and the findings of fact on which the Court has relied. Section 68C(3) requires that where a warning or direction is required by a territory law to be given, or a comment to be made, to a jury in proceedings, the Court in a judge-alone trial must take the warning, direction or comment into account when considering its verdict. I approach these statutory obligations in accordance with the statements made in Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [6] and [52].
I adopt the following directions, set out by Nield AJ in R v Mulcahy [2010] ACTSC 98 (Mulcahy), in relation to my role in the present case. The directions have been adopted by Refshauge J in R v DM [2010] ACTSC 137 and Mossop J in R v Song (No 2) [2017] ACTSC 148; see also R v Connors (No 2) [2016] ACTSC 333 [6]-[18]; R v Droudis (No 14) [2016] NSWSC 1550 (Droudis (No 14)). The relevant directions as set out in Mulcahy and Droudis (No 14) are as follows.
Onus and Standard of Proof
A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law: see Mulcahy at [13]. The fundamental rules which govern a criminal trial are these.
The prosecution bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The prosecution has asserted that the defendant has committed a criminal offence, therefore the prosecution must prove that the defendant committed that offence. The accused does not have to prove that he did not commit that offence: see Mulcahy at [14]; Droudis (No 14) at [24].
The level or standard of proof required in a criminal trial is proof beyond reasonable
doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt: see Mulcahy at [15]; Droudis (No 14) at [25].
The accused is presumed by law to be innocent of the offence with which he stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is
guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable
doubt of his guilt, then he remains presumed to be innocent and the appropriate
verdict is not guilty: see Mulcahy at [16]; Droudis (No 14) at [23]
Judge of Facts and Law
In addition to the fundamental rules which govern a criminal trial, the following rules have been developed. As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will: see Mulcahy at [18].
General Directions on Witnesses
I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence: see Mulcahy at [19].
I must determine the relevant facts according to the evidentiary material, considered
logically and rationally, without acting capriciously or irrationally. I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses: see Mulcahy at [20]-[21].
I am not required by any rule of law, logic or common sense to accept a witness wholly
or to reject a witness wholly. I can accept everything that a witness has said if I
consider all of it worthy of acceptance, or I can reject everything that a witness has said
if I consider none of it worthy of acceptance, or I can accept that part of what a witness
said that I consider worthy of acceptance and reject the rest of what that witness said
as I consider it unworthy of acceptance: see Mulcahy at [22].
The Accused
The accused did not give evidence. I direct myself that he was not obliged to. The fact that he did not give evidence does not affect the burden upon the prosecution to prove its case beyond reasonable doubt: see R v Graham [2017] ACTSC 267; see also Droudis (No 14) at [59]-[61].
I adopt the foregoing directions in the present case.
Elements of the offences
The offence of culpable driving causing grievous bodily harm is contained under s 29(4) of the Crimes Act. Section 29 relevantly provides as follows:
29 Culpable driving of motor vehicle
…
(4) A person who, by the culpable driving of a motor vehicle, causes grievous bodily harm to another person is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
…
(6) For this section, a person shall be taken to drive a motor vehicle culpably if the person drives the vehicle— (a) negligently; or (b) while under the influence of alcohol, or a drug, to such an extent as to be incapable of having proper control of the vehicle.
(7)For this section, a person shall be taken to drive a motor vehicle negligently if the person fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case.
…
In a criminal trial, the prosecution must prove the essential elements of the charge beyond reasonable doubt.
The elements of this offence relevant in this case are:
(a) That the accused drove a motor vehicle;
(b) That the accused intended to drive the motor vehicle;
(c) That the manner of the accused’s driving was culpable, namely that it was negligent; and
(d) That the accused’s driving caused grievous bodily harm to another.
On a trial for culpable driving, in relation to the issue of negligence, I acknowledge that it is “both unnecessary and undesirable” to direct myself in terms other than the “plain words of s 29(7)”: see DPP v Spong [2018] ACTCA 37 (Spong) at [61]. Accordingly, I direct myself that a person drives negligently for the purpose of the offence of culpable driving causing grievous bodily harm if that person fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case.
The Prosecution Case
Broadly, the prosecution case was that the accused while driving taxi TX 19 “ran over" Mr Keir. Mr Keir had been a passenger in the accused’s taxi. There is no direct evidence that the accused hit Mr Keir while driving the taxi. The case against the accused is based on circumstantial evidence.
The Defence Case
The accused submitted that there is a “reasonable hypothesis other than the guilt of the accused”. That hypothesis is that:
…in a short space of time after the incident described by Mr Tang in his interview with police, and following the departure of the taxi, Mr Keir remained on the roadway and was hit by another motor vehicle which failed to stop.
Principal Issues
It is not in issue that the accused was driving and intending to drive taxi TX19. The accused admits that the injuries sustained by Mr Keir amount to grievous bodily harm (Exhibit 2).
What is in issue is whether it was the accused who ran over Mr Keir. Further in issue is whether the accused caused the injuries sustained by Mr Keir, and whether the accused’s driving was culpable.
Evidence
Evidence of Luke Keir and Jason Gallway
On 17 December 2016 Mr Keir had been drinking at the Fraser Tavern in Fraser with Jason Gallway. They were there for a Christmas party (T 17.36). Mr Kier consumed schooners of full strength beer on both occasions. On his first trip in the morning he had “a couple of beers” (T 12.6) or “two or three” schooners (T 15.44). On his second trip, from about 2.30pm he estimated he drank “five to 10 schooners, more than likely” (T 12.20).
He did not have a clear memory of how his night at the Fraser Tavern ended or what happened next. He explained his next memories as follows (T 13.6 – T 13.41):
Mate, the next thing I remember after that blank is sitting on the ground, looking at my legs and my left leg was on a 45 degree angle to that way.
How did you feel having seen your leg?‑‑‑Mate, like I said, I tried to get my – see my leg and I thought to myself, that shouldn't be like that. I tried to get my phone out. I couldn't even unlock my phone. I tried to ring my mum but I couldn't even unlock my phone, I couldn't do anything. And then I slightly remember somebody touching me, and then I remember the ambulance and everything being there.
So you said when you looked at your leg it was at a particular angle. Could you just clarify, what angle was your leg at?‑‑‑It looked like a L-shape backwards, backwards. Like if my left leg was like that, it was like that, halfway down, just below my kneecap.
Thank you. So you said you remembered someone touching you. Do you remember anything about that person?‑‑‑I don't remember who it was or what it was, I just remembered somebody slightly behind me saying it'd be okay, I've called somebody, it'll be okay, and that's all I remember of somebody. And then I remember the ambulance being there, the police being there.
That person who was behind you, do you remember whether it was a male or a female voice?‑‑‑I believe it was a female voice.
What do you remember about when the ambulance arrived?‑‑‑I remember when the ambulance arrived, I remember they were there or said to me – I remember the police were doing something over in the corner and they were laughing. I slightly remember abusing them, and then the ambulance come and give me the whistle. Once I had that whistle it was – I don't remember nothing until I got to the hospital and come out of surgery.
All right. When you say the whistle, can you just describe that as best you can?‑‑‑Just a – I don't really remember what it looked like, I just remember the ambulance putting something in my mouth. I sucked on it, whatever you done on it, and I was out from there. I don't remember anything after that.
So after being given the whistle by the ambulance officers, what's the next thing you remember?‑‑‑I remember waking up out of the elevator, coming out of the elevator and seeing my mum and that there and saying, "Where am I?"
Mr Keir did not remember anything he said to people at the hospital about what had happened to him (T 14.14 – T 14.16).
Mr Keir clarified what he remembered under cross-examination, including the following:
(a)“And did anybody on the side of the road tell you what happened?‑‑‑No.” (T 14.46);
(b)He was run over was a couple of streets away from where he lived in Evatt (T 15.10);
(c)He smoked a bong on the morning of 17 December 2016 but none later in the day (T 16.41);
(d)He did not remember getting in a taxi, being in a taxi, talking to the taxi driver, or getting out of a taxi (T 18.14 – T18.19);
(e)“I assume I was pretty intoxicated if I don’t remember [what happened]” (T 19.39);
(f)He did not remember punching, elbowing, or having a dispute with the taxi driver (T 20.2);
(g)He did not know the AFP had a building in Barton (T 20.16);
(h)He did not remember slapping the taxi or resting his body on it (T 20.20); and
(i)While there is something in his statement about remembering going up on the bonnet, he does not remember that: “Yes. I've tried to go over it in my head, over and over and it just – I can't get nothing” (T 21.25 – T 21.26).
Mr Gallway remembered going to the Fraser Tavern in the afternoon, drinking rounds of beers with Mr Keir, and that Mr Keir left at roughly 10 or 11pm (T 24.21 – T 24.46). Mr Gallway did not remember how many beers, but recalled “It was a Christmas party, so you didn’t have to pay for beer, you just went up and got it when you wanted to” (T 25.2). Mr Keir wanted to go home so Mr Gallway “asked the pub to call a taxi for him. The taxi arrived. We went out, put him in to the taxi and that was the last I saw of him” (T 25.13). Mr Gallway was “pretty well intoxicated [at the Christmas party] and pretty well hung over the day after” (T 26.12). He spoke to Mr Keir a few days later at the hospital but could not remember the conversation.
In cross-examination Mr Gallway said Mr Keir had not needed any assistance to get into the taxi (T 27.37).
Consideration of Mr Keir and Mr Gallway’s Evidence
The prosecution submitted that Mr Keir and Mr Gallway were intoxicated at the time Mr Keir got into the taxi, and submitted that Mr Keir, in giving evidence, was doing his best to recall what had occurred, but his memory had been affected by alcohol and the trauma involved with his injuries and subsequent surgeries.
Counsel for the accused emphasised that in cross-examination, Mr Keir had agreed that he told police that he had drunk around 15 schooners of beer and that he had consumed more alcohol than he normally would, and agreed that he had told police that he had been drunk but not “legless”. It was also submitted that there would be significant doubt as to the reliability of Mr Keir's assertions to various witnesses that he had been hit by a taxi, having regard to his level of intoxication, state of shock, and the inconsistencies between the assertions. It was further submitted by the accused that it cannot be discounted that Mr Keir has conflated two sets of events in order to assert that it was a taxi and not another vehicle that hit him.
Evidence of Katherine Brockway
On 17 December 2016, between about 10pm and midnight, Ms Brockway was driving up Owen Dixon Drive from Kaleen to Casey. As Ms Brockway drove past “one of the streets to the left on the corner on the gravelly bit I noticed there was a man who was sitting and the taxi adjacent to him and it struck my attention as a little bit odd” (T 30.4 – T 30.6). Ms Brockway slowed down slightly and saw the man appeared to be having an “interaction” with the taxi, something she inferred from the man’s “body language” (T 30.18 - T 30.22). Ms Brockway thought the taxi was white with a blue or potentially blue and yellow logo. As Ms Brockway drove past, the taxi was moving slowly closer to Owen Dixon Drive and towards the man who was sitting on the gravel (T 30.28 - T 30.45).
Ms Brockway marked the location of the taxi and the man on Exhibits 3A and 3B.
In cross-examination, it was highlighted that Ms Brockway would have had only a brief opportunity to see the man and the taxi (T 33.43 – T 33.47) and that she did not see anything that made her think she should stop (T 34.1). It was also highlighted that Owen Dixon Drive is an arterial road (T 34.46).
In re-examination, Ms Brockway confirmed that she did not see any cars on Owen Dixon Drive other than the taxi (T 35.19 – T 35.25).
Consideration of Ms Brockway’s Evidence
The prosecution submitted that Ms Brockway's evidence is important primarily because it is the only evidence about the traffic on Owen Dixon Drive at about the time Mr Keir was run over. The prosecution emphasised that the only car there at the time other than Ms Brockway's was the taxi.
Counsel for the accused emphasised that Ms Brockway agreed that Owen Dixon Drive was a major arterial road that carries a lot of traffic “at all hours of the day and night obviously more so at other times than others”.
Evidence of Emma Gomerski
Ms Gomerski was driving along Clarey Crescent when she heard screaming (T 37.16), saw a man “laying on his stomach” (T 37.23) on the gravel near a path at the intersection with Owen Dixon Drive, and pulled over to help. She spoke to the man (Mr Keir) (T 37.31 – T 37.42):
Before you call the ambulance was anything said by either you or the man on the gravel?---I asked if he was okay and what happened and he pointed and said that somebody hit him and then it was further discussed while I was on the phone to the ambulance that a taxi hit him and then he showed me where the tyre marks were.
As best you can remember that first time you spoke to him and he told you what happened, what words did he use to explain what had happened?---He was very distraught so he didn’t really use many words at all. He just said somebody hit me and the more I think about it he did say that his leg hurt but other than that he wasn’t very talkative. It was mostly just screams, well at that point he wasn’t screaming so much anymore.
Ms Gomerski called triple zero. During that call, Mrs Wight and Mr White came out of their house. About “three or five minutes” later a second car pulled up and then “a couple of minutes” after that a third car pulled up (T 38.21 – T 38.41). The people from these cars got out and asked what had happened.
During the triple zero call Ms Gomerski told the operator that Mr Keir had been hit by a taxi and that there had been a “hit and run”. While Ms Gomerski could not remember the exact conversation with Mr Keir, she said this information came from him: “Yes, it would have been the gentleman” (T 42.26).
Ms Gomerski marked where she found Mr Keir on Exhibit 5.
In cross-examination Ms Gomerski was asked about why she told the triple zero operator to come to Copeland Drive (further south, see Exhibit 20). Ms Gomerski explained: “I think maybe I was just really stressed in the situation and I accidentally said Copeland Drive instead” (T 45.3). In relation to her memory, Ms Gomerski stated:
(a)“Yes, so I’m trying to remember as much as I can. Just conversations are something that I don’t want to make promises on” (T 46.4 – T 46.5).
(b)The other two cars that pulled up came from the direction of the 7 Eleven Spence (see Exhibit 6).
(c)That there was no conversation with the two people who came out of the house (Mrs Wight and Mr White) (T 47.37), at least, not more than when she told them she was on the phone to the ambulance (T 48.19).
Ms Gomerski’s triple zero call (Exhibit 4)
Ms Gomerski provided some clarification regarding parts of the call in her evidence (T 41 – T 42). Mr Keir can be heard in the background; Ms Gomerski can be heard telling Mrs Wight and Mr White she’s on the phone to triple zero; and the information about Mr Keir being hit by a taxi “must have” come from Mr Keir.
The call was made at 10.22pm. In the background Mr Keir can be heard saying “the taxi ran me over”.
Consideration of Ms Gomerski’s Evidence
The prosecution submitted that Ms Gomerski’s evidence that Mr Keir told her he had been run over by a taxi was important, and that there can be no suggestion that anyone other than Mr Keir told her that he had been hit by a taxi. The prosecution noted that Ms Gomerski marked Exhibit 5, placing Mr Keir slightly to the left or further away from Owen Dixon Drive than other witnesses. The prosecution nevertheless submitted that nothing turned on this. The prosecution further submitted that the call is contemporaneous evidence regarding Mr Keir’s state of mind and understanding of what happened to him; that is, that a taxi had run him over.
Counsel for the accused emphasised that Ms Gomerski stated she saw the man, Mr Keir, laying on his stomach, and that it kind of looked like he was crawling towards the pathway. Counsel for the accused emphasised that the circle on Exhibit 5 is a considerable distance from the tyre marks in the gravel and the pool of blood. Counsel for the accused emphasised in this regard that there was an inference available from her evidence that Mr Keir was hit by a car while he was on Clarey Crescent.
Evidence of Jane Wight
At about 10.20pm on 17 December 2016, Mrs Wight was in the rumpus room of her house at 189 Owen Dixon Drive with her husband Mr White. They were watching a movie and heard a noise and stopped the movie. Mr White tried to look out the window but could not see anything. They turned the movie back on and five or ten minutes later their son came in and told them someone was out the front of the house yelling about breaking their leg (T 53.5 – T 53.6). The area is well lit by street lights. They went outside, Mr White first, followed by Ms Wight who grabbed her mobile phone. Mrs Wight called triple zero. Mrs Wight marked a photo showing where Mr Keir was (Exhibit 8). Mrs Wight and Mr White took turns trying to support Mr Keir while he sat on the ground.
Mrs Wight said she spoke with the man (T 54.11 – T 55.9):
No, after that?---Okay. So, I called the ambulance straight away and I went up to him and I could smell alcohol. I asked him where did it hurt, and he just said his leg. I said, "Did you hit your head, does anything else hurt?" But you could see by his leg that everything else was going to be irrelevant because that leg looked like it was severed and I couldn’t' believe that there was no blood anyway. But really he – I thought there'd be blood spurting out everywhere, so I assumed that even though it looked bad that there was no major arteries had been severed. So, I knew not to touch him, not to move him.
Sorry, how did you know that?---Because I trained as a nurse years ago. But I don't – I'm no longer a nurse and haven't been for several years.
Sorry, I interrupted you, please continue?---So, yes, my main concern was – is there any other pain and he – and there wasn't, I could smell alcohol. And he kept yelling, excuse my language, "The fucking taxi hit me", and he just kept going over and over again. I tried to calm him and then he would sort of yell, "Look at my leg", and he was getting very distressed because it was quite confronting, his leg. So, at some stage during that time, I sort of said to my husband, "I think we should cover his leg because he's getting – he's really agitated." I once said, "Do you want to, you know, lay down?" And he yelled that he couldn't lay down flat. So, he never moved. Either my husband or I at different times sort of helped support him upright because he was on his bottom, sort of, with his leg sort of out in front of him and one was at a very obscure angle. So, we were trying to reassure him because I'm thinking he was going to go into a shock, if he's not already in shock. But there was no way he could – he couldn’t move.
How were you supporting him?---Just sitting behind him, so that he could sit upright.
You put your hands up, is that to indicate what you were doing?---Yes, behind him, like that – like, I was squatting down or my husband was, as I said, we took turns squatting behind him until the ambulance arrived and even after that when the ambulance were there.
…
Sorry, say that again?---He said, "The fucking taxi hit me."
Do you have any memory of how many times he said it while you were there?---Twenty, 30, it was over and over. He kept repeating himself, it was very – yeah. He was very distressed obviously, he was in pain, he was in shock, he was - - -
Mrs Wight also remembered police trying to speak with Mr Keir (T 56.7 – T 56.11):
They tried asking - he wasn’t - he was in a lot of pain, he wasn’t really answering the questions properly. You know they asked him a few but he wasn’t - he wasn’t making much sense. He just kept saying about his leg, was - you know, “Look at my leg, look at my leg.” And then eventually the ambulance turned up.
Mrs Wight was only able to see the full extent of Mr Keir’s broken left leg when ambulance officers cut away his track pants (T 56.21 – T 56.24). Around the same time, ambulance officers gave him pain relief. She recalled seeing a “distinct round mark of blood” on the ground where Mr Keir had been sitting (T 56.39). There were two “tyre marks, right next to where the blood was” (T 56.43 – T 56.44).
In cross-examination Mrs Wight stated the following:
(a)The blood stain became apparent once Mr Keir’s leg was moved by ambulance officers (T 58.46);
(b)Mr Keir’s back was to Clarey Crescent (T 59.45 - T 60.10; see straight line on Exhibit 9A and 9B);
(c)She smelled alcohol on Mr Keir from 30cm away (T 61.14);
(d)There were no manifestations of shock when she was with Mr Keir, however she was concerned he would go into shock (T 61.33; T 62.42, also in re-examination T 67.10 – T 67.13);
(e)When she used the word “ranting” to describe what Mr Keir was saying about being hit by the taxi, she did not mean he was “irrational” but meant he was “repeating it over and over again” and doing so loudly (T 62.15 – T 62.16); and
(f)When police arrived Mr Keir did not tell them about the taxi so she told them (T 66.38).
Mrs Wight was also asked about traffic on Owen Dixon Drive and Clarey Crescent and confirmed that they were important roads, because they linked other major roads (T 63.34 – T 65.15). In re-examination Ms Wight said of the traffic on the night (T 67.17):
I didn't even notice any cars go by, other than once – once I was out the front I didn't notice any other cars. It wasn't heavy traffic.
Mrs Wight’s triple zero call
This call was made at 10.27pm. Mr Keir can again be heard in the background moaning in pain. Mrs Wight tells the triple zero operator that “…he reckons the taxi driver’s hit him” and “…he’s saying the taxi driver ran him over”. When asked, Mr Keir responds with his age.
Consideration of Mrs Wight’s Evidence
The prosecution submitted that Mrs Wight was clear in her evidence that it was Mr Keir who said he had been hit by a taxi. The prosecution further submitted that Mr Keir’s repetition of phrases like “the fucking taxi hit me” were attempts to convey what had happened to him, rather than a mistake or an idea from another person. The accused’s counsel emphasised that Mrs White's evidence was that Mr Keir was intoxicated, and that Mrs Wight agreed that “Owen Dixon drive is a fairly major arterial Road in the Belconnen area”, and further that Clarey Crescent was also an arterial road.
Evidence of Brett White
Mr White’s evidence was consistent with Mrs Wight’s in relation to what occurred. He remembered smelling alcohol on Mr Keir’s breath (T 69.46). He marked a photo to show where he found Mr Keir (Exhibit 11). Mr White remembered speaking with Mr Keir (T 68.37 – T 69.26):
Once you came out and saw what you’ve just described, what did you do?---First I said is anyone ringing an ambulance and the lady said, “I’m talking to them now.” And so I went over to the guy and said, “Are you okay?” sort of thing and - excuse the swearing but he said, “No, I’m fucking not. Just look at my fucking leg, the taxi fucking drove me over - ran me over” and - - -
…
And when you were with him, supporting him, was he saying anything else to you?---He said a lot of things, there was a lot of swearing going on and mainly, “The fucking taxi driver” I think at one stage he said, “The fucking taxi driver tried to kill me by running me over. Look at my leg.” He wanted to ring his mum at one stage but he couldn’t open his phone and I can’t remember too much more. He was saying things but - - -
Do you remember what any of those other things were?---No, because he did mention that he come from Fraser Tavern, and he was catching a taxi home from Fraser Tavern. I can’t really remember what he sort of - anything else that he said.
In cross-examination, Mr White confirmed that he thought Mr Keir was intoxicated (T 72.23 – T 72.33) and that Mr Keir told him he had come from the Fraser Tavern (T 72.45 – T 73.2). Mr White added that he recalled seeing police block off the road (T 73.40 – T 74.20). When asked about what Mr Keir had told him he said (T 76.11 – T 76.27):
And you heard the man say again, “The fucking taxi ran me over”?---No, he said it many times.
How many times is many times?---Probably at least 10 times while I was there.
What, just saying the same thing over and over again?---No. He’d say it and then something else would happen or he’d try and fiddle around with the phone and then he’d go – excuse the language again – he’d go, “Look at me fucking leg, you know? Fucking taxi driver bloody ran me over”.
Was he talking to anyone in particular?---To everyone. It was quite loud and, you know.
To anyone who’d listen?---I suppose he was talking to me but everyone heard.
When asked about the amount of traffic on Owen Dixon Drive, Mr White said there was a lot of traffic “Especially first thing in the morning and like 5 o’clock in the afternoon” (T 74.25).
In re-examination, Mr White remembered “a couple of cars banked up because [of] the ambulance” (T 77.10), and he estimated a total of “10-15 cars maybe” going past over “40 minutes” while he was outside (T 77.35).
Consideration of Mr White’s Evidence
The prosecution submitted that Mr White’s evidence demonstrated that it was Mr Keir telling people that he had been hit by a taxi. The prosecution also referred to the evidence about traffic.
Counsel for the accused referred to the evidence in relation to traffic and emphasised that there was a significant amount of traffic based on this evidence.
Evidence of Constable Scott Burrows
Constable Burrows arrived at the intersection of Clarey Crescent and Owen Dixon Drive at 10.42pm. He spoke with Mr Keir (T 80.22 – T 80.29):
Did you speak to the male with the broken leg?---I tried to. He was obviously in a lot of pain and in shock. I was able to get his name from him and the only other thing I could get from him was that he’d been hit by a taxi.
All right. Did you observe anything about how he was behaving other than the fact that he was in pain?---He did appear to me to be intoxicated. He was slurring his words and he also did have an intoxicating odour coming from him.
Just after ambulance officers took Mr Keir to hospital, he contacted Senior Constable Steven Dzido from the AFP collision team for assistance. This was about half an hour after he arrived. Constable Dzido arrived 10 or 15 minutes later (T 81.34). He contacted Aerial Capital Group (ACG) to request CCTV footage from TX19 (T 81.44). On 24 December 2016 he referred the investigation to the collision team and after that had no further involvement in the investigation.
In cross-examination, he explained more about his role including that:
(a)He saw Constable Dzido take photos of the scene (T 83.4);
(b)He parked a police utility in the intersection to stop traffic (T 83.12); and
(c)He did not take any “steps” to obtain the CCTV footage other than the call to ACG (T 85.17).
With respect to traffic, Constable Burrows stated (T 83.39 – T 83.47):
Did you or any other police officer engage in traffic management at that intersection?---Due to the time of night there was very little traffic. Traffic management was my responsibility. It was part of my duties at that scene. Hence why my vehicle’s parked in the location it is.
What do you mean “very little traffic”? What sort of traffic are we talking about?---Be one or two cars going past, very little.
In which street? In Clarey Crescent?---No, mainly Owen Dixon Drive.
With respect to speaking with Mr Keir, Constable Burrows said that he said more than once he had been hit by a taxi (T 85.31; T 86.1) and but did not recall whether he was swearing (T 84.20 – T 84.33):
Did he say anything else about it? About what had happened?---No. I couldn’t get any more information out of him than that.
Just that one phrase?---Yes.
He’d been hit by a taxi?---Yes.
Did you ask him any other questions?---I tried to. Obviously I was able to get his name. I couldn’t get a date of birth, couldn’t get an address off him. Couldn’t get any contact numbers. Couldn’t even get any next of kin to try and call for him. Obviously couldn’t get registration or who was driving. Asked all those questions but due to the pain he was in and the shock he was in, I was only able to get his name and what he kept saying, that he was hit by a taxi.
Consideration of Constable Burrow’s Evidence
The prosecution emphasised that the officer’s evidence was consistent with other witnesses in relation to there being little traffic.
Counsel for the accused noted that traffic management at the scene was his responsibility and that due to the time of night, there was very little traffic. Counsel for the accused also emphasised that the evidence of the officer was that Mr Keir was intoxicated.
Evidence of Pauline Godber
On 17 December 2016 Mrs Godber lived with Mr Keir and her husband Edward Godber. Mrs Godber recalled that Mr Keir went to the Fraser Tavern Christmas party with Jason Gallway. Subsequently, Mrs and Mr Godber went to the Canberra Hospital and arrived shortly before midnight (T 97.1 – T 97.6). Mr Keir spoke to her about what had happened as soon as she arrived (T 97.9 – T 97.36):
We went into the Emergency, seen Luke. Luke just kept saying to me the taxi turned around and run over his legs, just over and over and over but with a lot of choice words.
…
When - how soon after you arrived did Luke first tell you about the taxi?‑‑‑Straight away.
Right. And as best you can remember, what words did he use that - straight away?---Straight away, the effing B of a taxi ‑ ‑ ‑
Sorry. I understand that you might feel uncomfortable to swear?---Okay. The fucking bastard ‑ ‑ ‑
I’m just asking you to recall his words, please?---Yeah. “The fucking bastard of a taxi turned around and run me over.”
And you said he kept saying that over and over again?---Over and over and over again.
Mr Keir also told her (T 98.18 – T 98.21):
And over those hours was there any other conversation with Luke that you remember?---Just about, you know, I did ask him how come he didn’t underneath the taxi, like how it didn’t run over the rest of his body and he said he held on to the - something on the roof.
Mrs Godber returned to the Canberra Hospital the next morning at about 7am. She spoke to Mr Keir (T 98.34 – T 98.42):
And when you arrived back at the hospital what did you do?---Went straight in to see Luke then waited until he went to surgery and he kept still saying the same thing over and over. Then he went to surgery and then he come out of surgery and - yeah.
What do you mean by “yeah”?---No, well, he came out of surgery and then after he’d come out of surgery he didn’t really remember too much about the accident. He didn’t remember too much about anything. He didn’t really even realise he was in the hospital.
Mrs Godber took photographs of Mr Keir’s injuries showing that it was the inside of his lower left leg that had to be stitched up. The photos were taken both when he was in hospital and, later in October 2018 (Exhibits 12 and 13). These photos show the part of his leg from which his broken tibia and fibula protruded.
In cross-examination Mrs Godber was asked, by reference to her police statement, to clarify some of the things Mr Keir had told her and some sticks she had found in his hair (T 104.19 – T 105.4). Mrs Godber said she had contacted the taxi company to try and get the CCTV footage (T 105.20). Police later told her “they had left it too late before they got it” (T 106.4).
Consideration of Mrs Godber’s Evidence
The prosecution emphasised that Mrs Godber's evidence is consistent with other complaint evidence; that is, that it was Mr Keir speaking from his own recollection about what happened. After surgery, the prosecution emphasised that Mr Keir could no longer recall what had happened.
Evidence of Edward Godber
Mr Godber’s evidence was broadly consistent with that given by Mrs Godber about what occurred when they went to the Canberra Hospital. Mr Godber recalled Mr Keir said the following (T 108.6 – T 108.45):
When you talked to him what did you say to him and what did he say to you?‑‑‑Well, he was pretty sedated but the first thing he said was “Hello, dad” and then he’s just - he swore and said the - what did he say, that the - he’d been run over, the taxi had run him over. That’s what he said to us when - at the time.
So you’ve said that there was some swearing. As best you can remember - you’re allowed to swear in here?---All right.
So as best you can remember give us Luke’s exact words?---Crikey. I think he said “the fucking bastard ran me down” or “the taxi ran me over. I can’t believe it.” I’m pretty sure that’s what he said.
And how soon after you arrived did Luke say that to you?---Probably within the first five minutes or something like that it would have been.
…
As best you can remember, what if anything do you remember Luke saying?‑‑‑Well, mainly with him being run over, that was the main thing. And that’s basically it really. I - like I said, I wasn’t there the whole time either because I went out for - and got a drink as well because I wasn’t feeling real flash from all the blood and everything so I went outside and get a drink and come back.
In cross-examination, Mr Godber confirmed he had heard Mr Keir say “That fucking bastard, the taxi ran me over”, that he said this “over and over again” (T 110.22), and that Mrs Godber had found sticks in Mr Keir’s hair.
Consideration of Mr Godber’s Evidence
The prosecution emphasised that Mr Godber’s evidence was broadly consistent with that given by Mrs Godber.
Evidence of Van Huynh
Mr Huynh employed the accused to drive TX19. The accused’s normal hours were 4:00-5:00pm to 5:00-6:00am. The accused was driving this shift on 17 December 2016 (T 115.25).
In December 2016, Mr Huynh had owned TX19 for about six or seven years. At that time it had a single black and white camera installed in the middle of the windscreen recording what happened inside the taxi (T 115.36 – T 116.9). Mr Huynh did not know whether TX19 had a GPS device installed or where data from such a device, or from the CCTV camera, was stored (T 116.8 – T 116.20). “[O]nly the head office would know” (T 116.20). Mr Huynh said the tyres on TX19 were not changed between 17 December 2016 and 26 December 2016 when Constable Cantwell photographed the tyres (“No. That’s what I remember but I cannot be sure”: T 117.7).
Mr Huynh stated that various marks on the rear and front bumper bars of TX19 were present prior to 17 December 2016 (T 116.36 - T 118.5). However, Mr Huynh only noticed the scratch or mark above the front driver side wheel arch (Exhibit 1, photos 53 and 54) after “meeting with the [police] officer” on 9 January 2017 (T 118.27). That is, with Constable Cantwell when TX19 was taken to the Clarey Crescent/Owen Dixon Drive intersection.
Mr Huynh noted there was no process to enter into the devices in the taxi when someone did not pay a fare (T 118.30 – T 118.33). If someone did not pay, he would drive away.
Mr Huynh spoke to the accused about his trip with Mr Keir. This conversation occurred after speaking with police (T 119.6 – T 119.18):
I remember that Mr Tang said that he waited for nearly an hour, then he picked up the passenger and then there was some trouble between him and the passenger. There was some maybe argument or some trouble between them.
… Mr Tang told me that he waited for nearly an hour to pick up the passenger and then the passenger was drunk and swore at Mr Tang. He said fuck and there was some problem, argument and I didn’t ask him any further question.
In cross-examination Mr Huynh stated that:
(a)Passengers often refused to pay fares (T 119.36).
(b)On one occasion he drove a passenger who refused to pay to a police station (T 121.23).
Consideration of Mr Huynh’s Evidence
The prosecution emphasised Mr Huynh’s evidence in relation to the scratch seen on the driver's side front wheel.
Evidence of Kirsty Lowe
Ms Lowe is the fleet manager at Aerial Capital Group (ACG). In December 2016 the two taxi companies in the ACT used ACG’s booking service to allocate jobs to their taxis. One was Canberra Elite taxis (white taxis, blue and yellow logo) and the other was Queanbeyan Elite (white taxis, aqua blue logo). ACG’s booking system stores booking, tracking, and call data. Individual operators have licenses for particular taxis that operate using these companies’ branding and hire drivers to drive for them (T 125.17 – 126.43).
GPS tracking
In December 2016, TX19 had various equipment in it monitored by ACG. This included a GPS system. This is monitored via the “TELOP system which is called MT data tracking” (T 126.38). Ms Lowe gave the following evidence in relation to the GPS system (T 126.45 – T126.43):
…[it] allows us to track the actual vehicle and to monitor when the vehicle has picked up a passenger, when they’ve dropped off a passenger and the duration of the trip and we can track where the vehicle has gone and what routes they have taken.
CCTV
In December 2016, TX19 was equipped with one “internal camera” that is “just above the rear vision mirror looking back into the vehicle” (T 127.5). This camera “captures the driver, the passenger and then the rear passengers” (T 127.12). This camera was black and white. The footage from this ‘old’-style camera is “quite blurry” and has a poor night vision mode meaning it made poor quality recordings of what happened in the taxi at night (T 128.1 – T 128.8). The footage recorded by the camera is stored in a device in the boot of the taxi which can hold 72 hours of footage before it records over itself (T 128.37).
In August 2017 the taxis operating on ACG’s network were upgraded to have internal and external colour cameras the footage from which can be retrieved remotely (T 127.34).
Exhibit 15
Ms Lowe explained various aspects of documents provided by ACG and tendered as Exhibit 15 (T 129.4 - T 133.45). The prosecution highlighted the following:
(a)The Fraser Tavern (code 603) requested a taxi at 10.05pm on 17 December 2016. TX19, driven by the accused, accepted that fare at 10.06pm and the taximeter was engaged at 10:11pm at the Fraser Tavern.
(b)A “vehicle location report” for 189 Owen Dixon Drive shows the only taxi within 30 metres of that location between 10pm and 10.30pm on 17 December 2016 was TX19 (T 131.23; Exhibit 15, p 9).
(c)MT tracking data shows that TX19 was at the intersection of Clarey Crescent and Owen Dixon Drive at 10.16.53pm (Exhibit 15, p 10). Each speed reading is taken “Every couple of seconds” (T 132.6). TX19 began moving away from the intersection at 10.17.49pm (Exhibit 15, p 11) and by 10.18.23pm it was driving at 59kmph south down Owen Dixon Drive and had passed Copeland Crescent.
(d)The taxi picked up a “street hail” at 91 Owen Dixon Drive at 10.18pm. The taxi continues driving without stopping before reaching Rosella Street, Nicholls at 10.25.53pm (T 131.1, Exhibit 15, p 8).
In cross-examination Ms Lowe:
(a)Confirmed that the old-style cameras recorded 72 hours of footage in a “box in the boot” before this is wiped over (T 134.36).
(b)Confirmed that after being stationary at the Clarey Crescent/Owen Dixon Drive intersection TX19 drove south down Owen Dixon Drive (T 135).
(c)Drivers are aware of the “measuring devices and instruments” in ACG-linked taxis because ACG trains them (T 136.27).
In re-examination Ms Lowe confirmed that ACG did not record what happened between each time the GPS device detected what speed the taxi was travelling at (T 137.1 – T 137.26).
Consideration of Ms Lowe’s Evidence
The prosecution submitted that the evidence from Ms Lowe and Exhibit 15 is “powerful circumstantial evidence”, and that the accused had ample time between 10:16.53 PM and 10:17.49 PM to run over Mr Keir.
Counsel for the accused emphasised three matters. First, that there is no record that the taxi, having stopped, then accelerated forward, stopped again, and then reversed. The accused submitted that the only record was that the taxi was stationary for around 56 seconds while in the vicinity of the intersection of Clarey Crescent and Owen Dixon Drive. Second, that had the accused done what the prosecution alleges, it would be unlikely that he would proceed down Owen Dixon drive at a slow acceleration rate. Rather, one might have expected him to put as much distance between himself and the scene of the accident. Third, the accused, like all taxi drivers, would have been aware of all the measuring instruments and devices fitted to the taxi logging his movements.
Evidence of Associate Professor Dr Vanita Parekh
Dr Parekh prepared a report on Mr Keir’s injuries dated 4 April 2017 (Exhibit 16).
The prosecution submitted that the opinion provided in the report, confirmed by Dr Parekh’s evidence in court (T 138.13 – T 141.25), demonstrates that Mr Keir’s injuries are consistent with being hit by a car. This was for a number of reasons including:
(a)A “high energy” impact would be required to break the tibia and cause the other injuries suffered by Mr Keir;
(b)The “wedge shaped” fracture to the tibia and fibula and location of those fractures were consistent with being hit by a car bumper bar;
(c)That Mr Keir was standing when he was hit: “Yes, he’s likely to be, there is very strongly suggested that he was standing up or he was in an upright position when that vehicle struck him” (T 140.24);
(d)Mr Keir’s injuries to his left leg were not consistent with having a fall or something of that kind (T 141.13 – T 141.16):
…most commonly, they’re going to be a motor vehicle collision. But you might find them in things like gunshot wounds. So you’ve got to have a high amount - it’s got to be a high energy impact. It’s not an injury that you would see, say from a fall or something like that.
(e)The shape of the wedge shaped fracture suggested force being applied from the left or front of Mr Keir’s left leg.
In cross-examination, Dr Parekh stated:
(a)The fact a tyre mark was noted on Mr Keir’s clothes by ambulance officers did not change her opinion he was hit standing up (T 142.17); and
(b)That the medical notes were not designed to provide “the forensic pieces of a puzzle” (T 143.1), and so she could not comment on whether he was run over after he was hit standing up.
Consideration of Dr Parekh’s evidence:
Counsel for the accused emphasised that according to Dr Parekh’s testimony, Mr Keir was hit while standing up and not then, or subsequently, run over. Therefore, counsel for the accused submitted there is no explanation for the abrasions and tyre mark on Mr Keir’s left hip and that this evidence does not fit the prosecution theory.
Evidence of Leading Senior Constable Phillip Joseph Cantwell
Constable Cantwell took over as the investigating officer (“informant”) on 24 December 2016. He took the photographs in tabs 2 and 3 of Exhibit 1 and under tab 4 of Exhibit 19. On 26 December 2016 he spoke with Mr Huynh at the Belconnen traffic operations centre. Mr Huynh helped him speak with the accused by phone. Constable Cantwell realised the accused’s English “was not good” (T 145.45) and later arranged to interview him with an interpreter. On 9 January 2017 Constable Cantwell met Mr Huynh again and they took TX19 to the Clarey Crescent/Owen Dixon Drive intersection (T 146.15 – T 146.18):
…we matched to the position the taxi on the tyre marks that were still visible and we saw that they matched up well, that the - with the tyres and so on, the ‑ it is the width of - how far apart the wheels were matched nicely with the marks on the roadway.
TX19 was put up on the curb (e.g. Exhibit 1, photo 46) because (T 146.38 – T 146.41):
…that pole has a give way sign attached to it there were white paint scrape marks on that pole and I wanted to align those marks with some paint scrapes that were visible on the right hand front of the taxi.
Constable Cantwell explained by reference to photos 48-54 (Exhibit 1) that there was a scrape or scratch mark on the front driver side of TX19 that corresponded with a paint mark on the Give Way sign (T 146.37 – T 148.23). In particular, he noted the mark began “halfway down the plastic mudguard towards the front of the car and extended backwards to about level with the top of the wheel”: (T 148.15).
On 10 January 2017, Constable Cantwell arranged for a Record of Interview (ROI with the accused. During that ROI, the accused drew a picture (Exhibit 17). He also took a statement from Mr Keir.
On 21 February 2017, Constable Cantwell retrieved ambulance records relating to Mr Keir (Exhibit 18).
On 7 March 2017, Constable Cantwell contacted Ms Lowe about CCTV from TX19 but was told this was no longer available.
On 4 April 2017, Constable Cantwell received Dr Parekh’s report.
In cross-examination Constable Cantwell stated:
(a)He had not looked under TX19 on 26 December 2016 (T 152.38);
(b)Explained he had used the “Naked Eye” to inspect TX19 for signs of a collision with a person (T 153.8);
(c)Explained that he had put paint markings around the tyre marks and blood stain shown in photos 35-45 (T 154.9 – T 154.27);
(d)He observed the blood stain was about 1.5 metres away from the closest tyre mark (T 145.36);
(e)He did not take impressions of the tyre marks (T 154.44);
(f)He disagreed that the paint mark on the Give Way sign was lower than the mudguard on TX19 (T 156.7);
(g)When challenged on the tyre marks stated “I’d be confident from my observations that the vehicle drove up and hit the pole and drove off in a different - on a slightly different path” (T 157.19); and
(h)Agreed that Clarey Crescent and Owen Dixon Drive are pretty busy roads (T 157.43).
In re-examination Constable Cantwell explained that in photos from 17 December 2016 (e.g. photos 3 and 11, Exhibit 1) he could see two sets of tyre marks and a suggestion that some disturbed gravel suggesting the tyres losing traction when the left the road and went up on gravel (T 158.46 – T 159.41).
Consideration of Constable Cantwell’s evidence
The prosecution submitted that Constable Cantwell evidence is consistent with the taxi driving up onto the gravel area reversing it into a Give Way sign at some point in the process.
Counsel for the accused submitted that the police investigation into this case was “unsatisfactory and inadequate with the consequence of potential prejudice to Mr Tang”. Counsel also submitted that Constable Cantwell did not visit the scene until nine days later on 26th of December 2016, and that Police failed to secure the CCTV footage from the taxi before the tape was overwritten.
The Accused’s Record of Interview
It should be noted at this juncture that Ms Joanne Tan, interpreter, gave evidence in the trial correcting the translation of the record of interview (ROI). The following summary incorporates the corrections to the translation.
The accused spoke with police on 10 January 2017 with the assistance of a phone interpreter. When describing picking up Mr Keir and being punched by him, the accused said:
(a)He was the driver of TX19 on 17 December 2016. He had picked up a drunk man who “walked very slowly and very unsteadily” (Q 86) from the Fraser Tavern at about 10.30pm and this man could not give him a specific address to drive to. Instead, the man said “You just go” (Q 89);
(b)There was confusion about whether the man wanted the taxi to turn left or right. He drove the man for about 13-15 minutes (Q 95);
(c)The accused let the man out on a street that was “quite dark” (Q 102);
(d)He argued with the man about paying the fare. He told the man “If you want to get off the car then you will have to pay the taxi fare” (Q 110). He had stopped the metre (Q 111). The man did not pay (Q 112). He told him to pay and he could make a complaint and get a refund if he was unhappy and threatened to take him to a police station (Q 113). The man still wanted to leave without paying so he locked all the doors (Q 114):
He was pressing his hands against me looking drunk and aggressive. So as he wanted to get off the car without payment and I stopped him from getting off the car by, you know, taking his left hand and then he hurried away and then used the left hand to punch me in my face.
Mr Keir “attacked” the accused (Q 117);
(e)There was then apparently a conversation where the accused threatened to take Mr Keir to the police station, during which Mr Keir claimed to be an AFP officer who worked in Barton (Q 119-129). Mr Keir gave evidence that he did not know there was an AFP building in Barton;
(f)Mr Keir then got out of the car, walked with a “gait that was very unsteady” (Q 133-134), slapped the front of the taxi twice (Q 143-144), then “just kind of collapsed, ah, at the front of” the taxi (Q 135); and
(g)The accused “slowly reversed my car and then he gradually stood up”. The accused reversed seven or eight metres (Q 136-137).
The accused explained his driving on to the gravel area:
(a)As he was about to drive away Mr Keir “started to come towards my car and try to stop me and as I saw that he wanted to stop me, then I took a very sharp left turn, ah, towards the – like, where the concrete was in order to avoid, ah running into him” (Q 154). This explanation is continued at Q 155-179, 191, 194, 211, 217 and 226. At Q 157 the accused begins drawing Exhibit 17;
(b)“Yeah so I reversed, I reversed at a very slow speed. Then when I saw that he was coming towards me, then I accelerated my car and I drove forward” (Q 165);
(c)“Yes, I want to avoid him because he was on the left, so I – I took the right side” (Q 177, see also Q 176 and 183);
(d)“Yes, I was – I was taking the right side, but he came towards me, so if he came towards me and tried to stop me on the right, so then I could only turn to the left to avoid him” (Q 179);
(e)“I believe I didn’t hit him” (Q 184), “Hundred per cent, yeah” (Q 186, this was said by the accused without the interpreter);
(f)He did not know how fast he was travelling “I just tried to avoid him” (Q 188);
(g)“I did not pay attention whether I hit that pole” (Q 193, the Give Way sign);
(h)He drove onto the concrete and then reversed back onto the road (Q 202-204);
(i)“Okay, I can’t remember exactly but maybe so I reversed and – and I saw the man standing at a place. I saw him there but I did not pay more attention other than just driving off, driving away” (Q 205);
(j)After reversing back onto the road, “Stay about, nearly about one – couple of minutes” (Q 214, said by the accused without the interpreter). He inspected his tyres (Q 217, 219, 222 and 226). “Okay, so after I checked the tyres, I saw this guy was standing in one position, then I just tried to drive away” (Q 222). “Okay, so then I saw him standing there, then I turned around. I did not hit him” (Q 223);
(k)As he was driving away he saw the man “yelling at – you know, at someone” (Q 227). He thought the man might pick up a stone or may have been looking for his phone (A232-233, 235). “From that I thought he was absolutely fine” (Q 223). “It seemed to me that he was half squatting on the ground” (Q 235);
(l)He did not report this incident to police because it would “waste a lot of time” (Q 236). This was “just a drunk person, a drunken person, so there’s no big issue” to report to the taxi company (Q 245);
(m)After he drove away he picked up another fare at the Belconnen Soccer Club (Q 246-249, 254, 256). This was 50m down the road.
Evidence of Pauline Godber (recalled)
Mrs Godber stated that she had spoken to the accused outside Court 3 of the ACT Supreme Court after court finished on 25 October 2018 (T 184.26 – T 185.2):
As best you can remember the exact words that were used, what did you say and what did he say?‑‑‑He sort of said to me that he was sorry, he didn't realise my son had such bad injuries. He was the driver. I said, "Why didn't you tell the truth?" He said, "Get in big trouble."
…
Just that conversation?‑‑‑Just that he come out and he said to me he that he was sorry that my son's injuries - he was the driver. I said, "Why aren't you telling the truth?" He said because he'll be in big trouble. And I said, "Go away, leave me alone." That was - yes. "Don't want to talk to you" something like that.
Mrs Godber also stated (T 185.32):
How would you describe the way in which Mr Tang spoke to you?‑‑‑In a way that I could understand.
In cross-examination she added that the accused had told her Mr Keir was “very drunk” (T 190.35). Further:
(a)Mrs Godber said she had waited outside court on 25 October;
(b)Agreed that she had tried to investigate what had happened to Mr Keir (T 186.23 – T 186.42);
(c)Mrs Godber said she understood what the accused had said (e.g. that he was the driver and that he had not realised Mr Keir’s injuries were so bad) as him apologising for hitting Mr Keir (T 187 - T 189);
(d)Mrs Godber rejected an alternative version of events where (1) the accused said “hello” (T 190.15), (2) she accused him of running over Mr Keir (T 190.40), (3) the accused denied doing this (T 191.1), and (4) the accused never he said would be in “big trouble” if he told the truth (T 191.35); and
(e)Mrs Godber confirmed she did not have trouble understanding what the accused was saying even though he spoke with a heavy accent (T 191.16; T 191.31).
Consideration of Mrs Godber’s evidence on being recalled
The prosecution submitted that this evidence should be accepted and that it is an admission. The prosecution submitted that the accused was aware he had hit Mr Keir but was unaware of how serious the injury was.
The accused submitted that the evidence should be given little weight because first, there was a risk arising from the fact that the accused was speaking without the aid of an interpreter to someone who was accusing him of injuring her son, with the presupposition that the accused was not telling the truth at some point. Second, if the accused made an apology, it was liable to be misconstrued and treated as an admission. Third, counsel for the accused asked rhetorically why the accused would spontaneously start making admissions at the end of the second day of his trial, when he had denied such allegations from the beginning.
Taking into account the matters referred to by both the prosecution and counsel for the accused, I am not persuaded that this conversation constitutes an admission by the accused of intentionally hitting Mr Keir with the taxi. In coming to this conclusion, I have directed myself with the requisite caution required: see Evidence Act 2011 (ACT) s 165; paragraph [129] below.
ACT Ambulance Service (ACTAS) records (Exhibit 18)
The ACTAS records include the following:
Unwitnessed accident where [patient] states he was run over by a taxi … [patient] also admitted cannabis use tonight … [patient] denies any [loss of consciousness], full memeory [sic] of events. [Patient] denies any neck pain …
The accused emphasised the following excerpt from the records:
[Patient] intoxicated, heavy odor of [ethyl alcohol], [patient] also admitted to cannabis use tonight. [Patient] prior to pain relief was difficult to manage due to intoxication.
Photographs (Exhibits 1 and 19)
The prosecution highlighted a number of photographs in the following terms:
a.In photograph 2, it can be seen from the blood stain that Mr Keir was found very close to the nearest tyre mark.
b.A comparison of photographs 9 and 13 (tyre marks) to photographs 24, 25 and 26 (TX19’s front left and right tyre) show a very similar pattern.
c. In photograph 15 it can be seen the intersection is very well lit.
d.In photograph 17 tyre marks on the road show the angle at which TX19 hit the gutter: just about head on. This is consistent with the tyre marks on the gravel (e.g. photo 1).
Additional Directions
Inferences and Circumstantial Evidence
There is no direct evidence that the accused ran over Mr Keir. The prosecution seeks to demonstrate that the accused ran over Mr Keir by inference from the primary facts it contends are proven.
The prosecution case is circumstantial. This means that the prosecution must first demonstrate that the inference or conclusion that it was the accused who ran over Mr Keir is a reasonable one to draw from the facts established by the evidence. The prosecution must then prove that the only reasonable inference or conclusion that can be drawn from the consideration of all the established facts, viewed as a whole, is that it was the accused who ran over Mr Keir and further that the driving was culpable.
If there is any other reasonable inference or conclusion open on the facts that is inconsistent with that conclusion, then the prosecution’s circumstantial case fails and the accused should be acquitted.
In assessing the prosecution’s case, I must consider all of the circumstances established by the evidence, and weigh them up in deciding whether there is an inference consistent with innocence reasonably open on the evidence: The Queen v Hillier [2007] HCA 13; 228 CLR 618 (Hillier) at [46]. A circumstantial case is not to be considered in a piecemeal fashion: Hillier at [48]; see also Droudis (No 14).
The prosecution case is a “strand in the cable”case, so that the individual circumstances relied upon by the prosecution need not be established beyond reasonable doubt: Shepherd v The Queen (1990) 170 CLR 573 at 579.
Circumstantial evidence is not necessarily less reliable than direct evidence. In El Hassan v R [2007] NSWCCA 148, Hunt AJA (with the agreement of Latham and Johnson JJ) said at [27]:
It has been my experience that a circumstantial case can in some cases produce almost conclusive evidence of the accused's guilt. Circumstantial evidence does not usually depend to any great extent on the evidence of witnesses who could be either mistaken or maliciously false in their testimony: Regina v Cable (1947) 47 SR 183 at 184. Those cases I have in mind have all been of the ‘strands in the cable’ variety of circumstantial evidence case (see par [19] supra). It is a matter of common sense that the more strands in the cable, the stronger the cable is. The more circumstances pointing to the guilt of the accused, the less likely it is that there could be any reasonable explanation for those circumstances other than the guilt of the accused, and thus the stronger is the circumstantial case against him. As McHugh J pointed out in Shepherd v The Queen (at 582):
There are many cases where the probability of the correctness of an inference of guilt drawn from the circumstances of the case is greater than the probability of the truth of any of the individual circumstances. As Lord Simon of Glaisdale pointed out in Regina v Kilbourne [1973] AC 729 at 758:
Circumstantial evidence [...] works by cumulatively, in geometrical progression, eliminating other possibilities’.”
Additionally, it is appropriate to keep in mind, in approaching a circumstantial evidence case, what was said by the High Court of Australia (French CJ, Kiefel, Bell, Keane and Gordon JJ) in The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 at [46]-[47] (footnotes omitted):
46.The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said:
“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen.”
47.For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.
The distinction between drawing an inference from proven facts and engaging in speculation was emphasised in Lane v R [2013] NSWCCA 317; 241 A Crim R 321 (Lane) at [109]-[110] (Bathurst CJ, Simpson and Adamson JJ):
109.The answer to that question lies in the distinction, which is a very real one, between inference and speculation. In Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262, Spigelman CJ considered this very question. He acknowledged that it is often difficult to distinguish between permissible inference and conjecture. Quoting from Jones v Great Western Railway Co (1930) 144 LT 194, his Honour adopted a definition of inference as ‘a deduction from the evidence’ which, if reasonable, may have the validity of legal proof.
110.He referred also to Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, quoting as follows:
“Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”
Spigelman CJ stated the test as:
“... whether, on the basis of the primary facts, it is reasonable to draw the inference.”
To similar effect were observations of Gibbs, Stephen and Mason JJ in Barca v The Queen [1975] HCA 42; 133 CLR 82 at 104-105.”
Warning in Relation to Alleged Admission
The prosecution and the accused both submitted that I must direct myself that there is a need for caution in relation to the alleged admission made by the accused to Ms Pauline Godber. Accordingly, I direct myself in accordance with the relevant legal principles that the evidence may be unreliable and there is a need for caution in deciding whether to accept this evidence and the weight to afford it: s 165 of the Evidence Act 2011 (ACT) (Evidence Act).
Warning Regarding Complaint Evidence
The prosecution and the accused both submit that I must direct myself with a warning in relation to complaint evidence in accordance with s 165 of the Evidence Act.
Accordingly, I direct myself in accordance with s 165 of the Evidence Act in relation to the complaint evidence from Mr Keir to Ms Gomerski, Ms Wight, Mr White, Ms Godber and Mr Godber.
Good Character Direction
A good character direction is within the discretion of the trial judge: Melbourne v The Queen [1999] HCA 32; 198 CLR 1 at [30]-[31]. The prosecution submits that as the accused has:
…not called any further evidence of his good character so the probative value of the evidence before the Court is slight. It appears only to be relevant to one aspect of good character evidence, that the accused was less likely to commit the offence: R v Telfer [2004] NSWCCA 27 at [31]-[36]; cf Bench Book at [2-370]. While the Crown is content for a direction to this effect to be given, it is submitted this evidence carries very little weight in the circumstances.
The prosecution conceded that a good character direction was appropriate (T 197.40), there being no relevant prior convictions, in that the criminal record consists only of charges of failure to vote and driving with a handheld phone. I have directed myself in relation to good character in the following terms.
The accused has called evidence to establish that he is a person of good character in that there is an absence of relevant prior convictions. That evidence has not been challenged by the prosecution. Therefore I should accept the fact that the accused is a person of good character, in that he has no prior relevant convictions.
The law provides that a finder of fact is entitled to take this into account in favour of the accused on the question of the whether the prosecution has proved the accused’s guilt beyond reasonable doubt. The fact that the accused is a person of good character is relevant to the likelihood of his having committed the offence alleged. I can take into account the accused’s good character by reasoning that such a person is unlikely to have committed the offence charged by the prosecution. Whether I do reason in that way is a matter for me as a finder of the facts.
The accused’s credibility has arisen because the accused has made exculpatory statements in his police record of interview.
Further, I can use the fact that the accused is a person of good character to support his credibility. I may reason that a person of good character is less likely to lie or give a false account in giving an account of the events in answer to questions asked by the police. Whether I reason in that way is a matter for me to determine.
None of this means, of course, that good character provides the accused with some kind of defence. It is only one of the many factors which I take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of the accused. What weight I give to the fact that the accused is a person of good character is completely a matter for me as the finder of the facts, but I should take that fact into account in the ways I have indicated.
Lies and Flight
The prosecution submitted that I direct myself as to lies in relation to the ROI. The prosecution further submitted that I direct myself as to flight as the taxi was driven away. I have accordingly directed myself in relation to lies and flight in the following terms.
The next direction I must give myself concerns the account of the accused in the ROI setting out his version of the incident. The prosecution says that the accused’s version that he drove around Mr Keir to avoid him is a lie.
First, I must be clear about what a lie is. A lie is to say something untrue, knowing at the time of making the statement that it is untrue. If a person says something which is untrue, but does not realise at the time that it is untrue, then that is not a lie. The person is simply mistaken or perhaps confused. Even if the person later comes to realise that what he said was incorrect, that does not transform the statement into a lie. To be a lie, the person must say something that the person knows, at the time of making the statement, is untrue.
If I find that the accused made the statement I have just referred to, and I find it was a lie, then I must give myself a direction about the care with which I must approach the task of deciding what significance, if any, it has as the finder of the facts. I may take this lie into account as evidence of the accused’s guilt, but I can only do that if I find two further things which I will refer to shortly. When I say I as finder of the facts can take it into account as evidence of the accused’s guilt, I am not suggesting that it could prove his guilt on its own. What I mean is that it can be considered along with all of the other facts that the prosecution relies upon and which I find established on the evidence in considering whether the prosecution has proved its case beyond reasonable doubt. The prosecution does not suggest that if I found the accused told a lie that this finding can prove the guilt of the accused by itself.
Apart from the fact that the accused made the statement and that it amounted to a deliberate lie, before I can use a lie as some evidence of the accused’s guilt, I must find two further matters proved.
First, I must find that what the accused said that amounts to a lie relates to an issue that is relevant to the offence the prosecution alleges that the accused committed. It must relate to some significant circumstance or event connected with that alleged offence. The prosecution says it is relevant because it is his account of what occurred and is “contrary to common sense and the other evidence and so should be rejected”.
Second, I must find that the reason the accused told this lie is because he feared that telling the truth might reveal his guilt in respect of the charge he now faces. In other words, he feared that telling the truth would implicate him in the commission of the offence for which he is now on trial.
I must remember, however, that people do not always act rationally, and that conduct of this sort, that is, telling a lie, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal his guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence.
If I think that the lie may have been told for some reason other than to avoid being implicated in the commission of the offence for which the accused is now on trial, then it cannot be used as evidence of the accused’s guilt. If that is the case, I should put it to one side and focus my deliberations upon the other evidence in the case.
In summary, before I can use what the accused said as something which points towards his guilt as a lie, I must be satisfied that he lied deliberately. I must find that the lie related to some significant circumstance or event connected with the alleged offence. I must find that the reason the accused told this lie was because he feared that the truth would implicate him in relation to the commission of the offence for which he is now on trial.
I also direct myself in the same terms as to the accused leaving the scene being flight.
Evidence that the accused fled from a place to avoid arrest can be admitted as evidence of consciousness of guilt in a similar way to the use of a lie. I have directed myself in relation to flight in a similar manner as I have directed myself in relation to lies. I direct myself that I must be satisfied that the accused fled because of a consciousness of guilt of the offence for which he stands charged and not for some other unrelated reason: see R v Adam [1999] NSWCCA 189; 106 A Crim R 510; R v Cook [2004] NSWCCA 52; Quinlan v R [2006] NSWCCA 284; 164 A Crim R 106; and Steer v R [2008] NSWCCA 295; 191 A Crim R 435.
Expert Evidence
In this trial, Dr Parekh was called as an expert witness in the prosecution case. In addition, a report of Dr Parekh was tendered (Exhibit 16).
An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. A witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. In this case, Dr Parekh gave oral and written evidence on matters concerning Mr Keir’s injuries.
The value of an expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness' specialised knowledge.
The expert evidence before the Court in this trial was adduced to assist in determining the question of the injuries and their causation.
The evidence of Dr Parekh has not been challenged and is not inherently unbelievable. The issue for consideration is what conclusions ought to be reached, by reference to that evidence.
It remains a matter for the Court to consider the expert evidence, in the context of all of the evidence adduced in the trial for the purpose of reaching a conclusion as to the significance of the evidence in the trial.
Consideration
Was it the accused who ran over Mr Keir and caused the injuries?
Having considered the entirety of the evidence and all the submissions made by the parties, I am satisfied that the only rational inference arising from the evidence is that it was the accused who ran over Mr Keir and caused the relevant injury.
The hypothesis advanced on behalf of the accused of another car hitting Mr Keir involves mere conjecture or speculation which raises the bare possibility of innocence. I have kept in mind that the onus of proof remains at all times on the prosecution during the trial. I am satisfied beyond reasonable doubt for the following reasons.
First, there is the question of opportunity. There was only a small window of time, less than four minutes, within which Mr Keir could have been injured. TX19 was at the intersection between 10:16.53pm and 10:17:49 pm. Ms Brockway drove past and saw a white taxi on Clarey Crescent while a man was sitting on the gravel. Ms Gomerski called triple zero at 10:22pm. Prior to calling triple zero, Ms Gomerski heard Mr Keir yelling, parked her car, took her phone, left her car and went to Mr Keir and spoke with him.
Second, there is the matter of the complaint evidence. Mr Keir repeated a number of times that he had been hit by a taxi.
(a)Ms Gomerski: “I asked if he was okay and what happened and he pointed and said that somebody hit him and then it was further discussed while I was on the phone to the ambulance that a taxi hit him.” Mr Keir can be heard saying words to this effect in the background of Ms Gomerski’s triple zero call.
(b)Mrs Wight: “And he kept yelling, excuse my language, ‘The fucking taxi hit me’, and he just kept going over and over again.”
(c)Mr White: “And so I went over to the guy and said, ‘Are you okay?’ sort of thing and - excuse the swearing but he said, ‘No, I’m fucking not. Just look at my fucking leg, the taxi fucking drove me over - ran me over’ … ‘The fucking taxi driver’ I think at one stage he said, ‘The fucking taxi driver tried to kill me by running me over. Look at my leg.’ … ‘Look at me fucking leg, you know? Fucking taxi driver bloody ran me over’ … No, because he did mention that he come from Fraser Tavern, and he was catching a taxi home from Fraser Tavern.”
(d)Constable Burrows: “I was able to get his name from him and the only other thing I could get from him was that he’d been hit by a taxi.”’
(e)Mrs Godber: “‘The fucking bastard of a taxi turned around and run me over.’ … Just about, you know, I did ask him how come he didn’t underneath the taxi, like how it didn’t run over the rest of his body and he said he held on to the - something on the roof.”
(f)Mr Godber: “I think he said ‘the fucking bastard ran me down’ or ‘the taxi ran me over. I can’t believe it.’ I’m pretty sure that’s what he said.”
Third, the evidence from the scene is significant. In the ROI, the accused states that he drove up on the gravel. The tyre marks demonstrate that he drove up to the path. The blood stain is close to the tyre marks. Photographs 9 and 25 demonstrate that TX 19’s front tyres have a similar patter to that left on the gravel. Additionally, Constable Cantwell observed the scratch mark on TX 19 which matched the white paint mark on the Give Way sign. The accused saw Mr Keir “squatting” on the gravel before he drove away. The evidence at the scene is consistent with Mr Keir having been injured on the gravel area and subsequently not being able to move afterwards as a result of the injury.
The evidence is that TX 19 drove onto the gravel. There is no evidence of another vehicle driving on the gravel where Mr Keir was found.
Fourth, Exhibit 15, the ACG records, reveals that TX 19 was the only taxi in the area at the time Mr Keir was injured.
Fifth, Dr Parekh’s evidence was that Mr Keir’s injuries were caused by a high energy impact. The nature of the fracture is consistent with Mr Keir being hit by the bumper of a car while standing up.
Sixth, in relation to the issue of traffic at the time in question, the weight of the evidence is that there was little traffic at the time.
All the circumstances established by the evidence are to be considered and weighed together: Hillier at [46]. A circumstantial case cannot be considered “piecemeal”: Hillier at [48].
TX 19 was the only taxi in the area at the relevant time. Mr Keir told witnesses he had been hit by a taxi. There was a very short period in which Mr Keir could have been injured. His injury meant he could not walk. He was found near the tyre marks. The whole of the evidence does not leave open a reasonably alternative hypothesis that Mr Keir was hit by another car. I am satisfied beyond reasonable doubt that the accused hit Mr Keir with his taxi and caused the relevant injuries.
Was the accused’s driving culpable?
The issue to be considered under this heading is whether the manner of the accused’s driving was culpable, namely, was it negligent? As referred to earlier, the relevant test under s 29 is discussed in Spong.
On the trial of a culpable driving offence under s 29 of the Crimes Act that involves ‘negligence’, I am neither required nor entitled to direct myself as the judge of the facts that the driving must “involve a high risk that death or serious injury would follow from the relevant conduct”.
In relation to s 29(7), I direct myself that a person drives negligently for the purpose of the offence of culpable driving causing grievous bodily harm, if that person fails unjustifiably and to a gross degree, to observe the standard of care that a reasonable person would have observed in all the circumstances. Gross is an ordinary English word that should be given its ordinary meaning. The required negligence must be of a high order involving a great falling short of the standard of care that a reasonable person would have exercised in all the circumstances.
The prosecution submits that the accused’s driving was culpable:
…because, on the Crown case, the accused drove up onto the gravel to intentionally hit Mr Keir. He knew where Mr Keir was, Mr Keir was standing in a well-lit area and had just got out of TX 19, and the accused drove straight at the gutter. To do this is an obvious example of a person failing “unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case” Crimes Act s 29(7).
It should be noted that the prosecution is not required to prove the accused intended to cause Grievous Bodily Harm. That is not an element of the offence. The prosecution case is, nevertheless, that the accused drove onto the gravel to intentionally hit Mr Keir.
In dealing with this element, it should be emphasised that the drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law: G v H (1994) 181 CLR 387 at 390. At this juncture, it is important to restate the distinction between drawing an inference from proven facts and engaging in speculation and conjecture: Lane at [109]-[110], referred to above at [128].
Record of Interview
A Mandarin interpreter was engaged during the police interview conducted over a two hour period on 10 January 2017. The interpreter, however, was not present in the interview room. Both the interpreter and the accused were clearly at a disadvantage as a consequence of the interpreter not being physically present in the interview room. At one point during the interview (Q 265) the accused, obviously exasperated by the difficulty in making himself understood, stated:
...it would be easier if you have got an onsite interpreter because then when I draw things, when I grab myself and I use body language, it can be easily understood.
The accused described in detail what occurred once Mr Keir stated he wanted to terminate the journey and alight from the taxi. Mr Keir refused to pay the fare. He stated he was an AFP officer after the accused said he would take him to a police station. Following the statement from Mr Keir that he was an AFP officer, the accused allowed him leave the taxi without payment: (Q 111 to Q 131).
The accused then described in detail what occurred once Mr Keir had alighted from the taxi. In Q 133 to Q 135, the accused broadly stated:
(a)When he got out of the taxi Mr Keir took a few steps forward but his gait was very unsteady;
(b)Then he turned around and hit/banged the front of the taxi twice slapping each of his hands on the bonnet;
(c)He kind of collapsed on the bonnet and had the upper part of his body resting on the bonnet (Q 146);
(d)The accused then slowly revered the taxi about 7 to 8 metres in order to be able to take off without hitting him (Q 152);
(e)As he slowly reversed the taxi Mr Keir stood up;
(f)The accused intended to accelerate and leave the scene but Mr Keir came towards him on his right side (Q 179) and tried to stop him so he turned the taxi sharply to the left in order to avoid running into him (Q 154);
(g)In order to avoid hitting Mr Keir he had to mount the concrete kerbing and guttering (Q 155): “I did not pay attention whether I hit that pole”(Q 193);
(h)The taxi came to a stop on the nature strip and he then reversed out on to the road. He reversed at a very slow speed back on to the road (Q 165);
(i)He stopped his car ‘for a couple of minutes’ and he checked the tyres. At this time Mr Keir was standing in one position in the roadway. When he drove off he drove around Mr Keir who seemed to be half squatting. He looked like he was looking for something maybe his mobile telephone but also he did not know whether Mr Keir was picking up a stone so the accused drove onto the opposite side of the road and left; and
(j)He believed he did not hit Mr Keir.
The accused during his police interview explained a number of times why he had to make the manoeuvre that he executed and that this was because Mr Keir came towards him on the right and tried to stop him and then he could only turn to the left to avoid him (Q 179).
Consideration
I am not satisfied beyond reasonable doubt that the accused drove up onto the gravel to intentionally hit Mr Keir. I am not otherwise satisfied beyond reasonable doubt that the accused’s driving was culpable on the evidence before me. I am not so satisfied for the following reasons:
(a)The prosecution has identified as a motive that Mr Keir was “drunk, abusive, unable to give proper directions and otherwise difficult to deal with. He did not pay his fare. He punched the accused in the face”. Counsel for the accused submitted in relation to motive that:
It is drawing a very long bow to suggest that a middle aged man of good character, and as a taxi driver with experience of dealing with drunks, violent people and people who refused to pay their fare, would lose his self-control because of the actions of this particular drunk. And lose it in such a spectacular way.
I accept the submission of the accused in this regard. I am not satisfied that Mr Keir being intoxicated, abusive and otherwise difficult motivated the accused, an experienced taxi driver, to intentionally run Mr Keir over;
(b)In the ROI the accused stated as he was about to drive away, Mr Keir:
(Q 154) Started to come towards my car and try to stop me and I saw that he wanted to stop me, then I took a very sharp left turn, ah towards the – like, where the concrete was in order to avoid, ah running into him.
…
(Q 165) Yeah so I reversed, I reversed at a very slow speed. Then when I saw that he was coming towards me, then I accelerated my car and I drove forward.
…
(Q 177) Yes, I want to avoid him because he was on the left, so I – I took the right side.
…
(Q 179) Yes I was – I was taking the right side, but he came towards me, so if he came towards me and tried to stop me on the right, so then I could only turn to the left to avoid him.
I am satisfied that it is a reasonable possibility that Mr Keir came towards the accused’s taxi as he was about to drive away;
(c)In the ROI, the accused stated “I believe I didn’t hit him”;
(d)The accused’s version that he was trying to avoid hitting Mr Keir is a reasonable alternative hypothesis. The prosecution case of the taxi hitting Mr Keir intentionally is not the only reasonable inference to be drawn on the evidence in this case;
(e)The prosecution conceded that Mr Keir was “drunk”, “abusive” and “difficult” in the submission on motive. These characteristics are equally consistent with the accused’s version of attempting to drive around Mr Keir, who was behaving in a “drunk”, “abusive” and “difficult” fashion. I am not persuaded, after direction, that this is a lie. Nor am I persuaded, after direction, that the taxi leaving the area is evidence of flight;
(f)In relation to the scratch marks on the taxi matching the white marks on the Give Way sign, the accused in his police interview conceded he may have scraped the pole (Q 192-Q 193). What this suggests is that the manoeuvre was undertaken by the accused as an emergency measure in the urgency of the moment when he had little time or opportunity to consider the route he was needing to take in order to avoid coming into contact with Mr Keir, rather than a deliberate case of intentional driving toward Mr Keir. It should be noted that on the accused’s version, Mr Keir had told him that he was an AFP officer. It is unlikely in my view that the accused would deliberately run over someone he had just allowed out of his taxi having been told he was an AFP officer; and
(g)Finally, the evidence of good character is relevant. I have directed myself in relation to good character. As a person of previous good character, the accused is less likely to have committed the offence of intentionally running over Mr Keir.
As to lighting, it should be noted that the prosecution submitted that “the intersection was well lit”, and further submitted that this was a factor that counted against the accused hitting Mr Keir without realising that fact. The prosecution made this submission in response to the statement by the accused in the ROI that where he let Mr Keir out was “quite dark” (Q 102). Counsel for the accused emphasised that “as this occurred sometime after 10pm, that statement must be true”.
In my view, the photographs of the intersection exhibited before me as part of Exhibit 1 cannot definitively settle the question of lighting. The evidence is unclear as to the precise state of the lighting at the time. The most that can be said is that it was night, after 10pm, and there was street lighting. I am not persuaded that the inconclusive evidence weighs heavily or is seminal to the question before me.
For the reasons set out above, I am not satisfied beyond a reasonable doubt that the accused’s driving was culpable on the evidence before me. I propose to find the accused not guilty of the charge of culpable driving under s 29 of the Crimes Act.
Negligent Driving Causing Grievous Bodily Harm
As referred to earlier, the prosecution relies on a statutory alternative of negligent driving causing grievous bodily harm, contrary to s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). This offence is a statutory alternative to the offence of culpable driving pursuant to s 49 of the Crimes Act.
The elements of this offence are:
(a)That the accused drove a motor vehicle;
(b)That the accused intended to drive the motor vehicle;
(c)That the accused drove the motor vehicle negligently;
(d)That the accused’s driving caused grievous bodily harm to another;
Negligent driving, in relation to this offence is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road, to be expected of the ordinary prudent driver in the circumstances.
Before coming to a decision in relation to the statutory alternative of negligent driving causing grievous bodily harm, I will invite further submissions from the parties. I propose to enter a verdict on the statutory alternative at a later date.
Orders
I return the following verdict:
(a) The accused is not guilty of the single count in the indictment dated 20 November 2017 (culpable driving causing grievous bodily harm).
| I certify that the preceding one-hundred and eighty-six [186] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 18 January 2019 |
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