The State of Western Australia v McIntyre
[2023] WASC 198
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MCINTYRE [2023] WASC 198
CORAM: DERRICK J
HEARD: 22 - 25 MAY 2023
DELIVERED : 9 JUNE 2023
FILE NO/S: INS 19 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
BRIAN NORMAN MCINTYRE
Accused
Catchwords:
Criminal law - Manslaughter - Trial of issues - Turns on own facts
Legislation:
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Evidence Act 1906 (WA)
Sentencing Act 1995 (WA)
Result:
Findings made on facts in dispute
Category: B
Representation:
Counsel:
| Prosecution | : | D Davidson & M L McCormack |
| Accused | : | S D Freitag SC & N C Wilson |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Aboriginal Legal Service (WA) |
Case(s) referred to in decision(s):
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425
Clay v The State of Western Australia [2023] WASCA 77
Ellis v The State of Western Australia [2013] WASCA 220
Larkin v The Queen [2012] WASCA 238
Macaree v The State of Western Australia [2011] WASCA 207
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Ramsden v The State of Western Australia [2019] WASCA 179
Shafto v The State of Western Australia [2020] WASCA 102
Wellstead v The State of Western Australia [2019] WASCA 130
DERRICK J:
Introduction
On 22 May 2023 Brian Norman McIntyre (offender) was convicted on his plea of guilty of an offence of manslaughter.
On 22 - 25 May 2023 I heard a trial of issues to enable me to make findings in relation to certain alleged facts of the offence that were disputed by the offender.[1] At the end of the hearing I reserved my decision. These are my reasons for making the findings that I have in relation to the disputed facts.
[1] Criminal Procedure Rules 2005 (WA), r 46.
Background to the trial of issues
The more detailed background to the trial of issues is as follows.
By an indictment dated 13 June 2022 the offender was charged with one offence of murdering Jocelyn Anne Walker (deceased) contrary to s 279 of the Criminal Code (WA) (Code).
On 22 May 2023, which was to be the first day of his trial for the murder charge, the offender pleaded not guilty to the charge of murder but guilty to the statutory available alternative offence of unlawfully killing the deceased contrary to s 280 of the Code. The State accepted the offender's plea to the offence of unlawfully killing the deceased in full satisfaction of the charged offence of murder. I therefore entered a judgment of conviction against the offender for the offence of manslaughter (offence) and vacated the trial dates.
The State accepted the offender's plea to the offence in the knowledge that it would, upon the offender's conviction for the offence, be requesting the court to conduct a trial of issues so as to enable the court to make findings in relation to certain alleged facts of, and relating to, the offence that were disputed by the offender and which it considered to be material to the determination of the sentence to be imposed on the offender for the offence. The State knew that the offender would, on being convicted of the offence, be disputing some of the alleged facts as a result of the plea negotiations that had occurred prior to the listed trial dates.
After the offender had pleaded guilty to and been convicted of the offence, and in accordance with s 129(3) of the Criminal Procedure Act 2004 (WA), I asked the prosecutor to state the facts of the offence. The prosecutor then stated the facts of the offence by reading an Amended Statement of Material Facts dated 22 May 2022 (Statement of Facts).[2] The Statement of Facts, a copy of which was provided to me, is in the following terms:[3]
[2] ts 24 - 27, 22 May 2023.
[3] The words in the quoted pars 9, 13 and 22 of the Statement of Facts that appear in square brackets are the words used by the prosecutor in stating the facts. Although nothing turns on the point, the word used in par 9 of the Statement of Facts is 'in' as opposed to 'and', the words used in par 13 of the Statement of Facts are 'mobile etc' as opposed to 'phone and the like' and the word used in par 22 of the Statement of Facts is 'or' as opposed to 'and/or'.
Background
1.Brian McIntyre (the offender) and Jocelyn Walker (the deceased) were in a relationship for a number of years prior to this incident.
2.At the time of the offence the offender and the deceased were living in a defacto relationship in one of the houses in Wanarn Community. The house that they were living in was house 30.
3.Wanarn Community is a remote Aboriginal Community and is located about a two hour drive from Warburton.
4.The Community is a closed community located 15 km from the Great Central Road approximately 100 km southwest of Warakurna. The community is policed by Warakurna Police Station.
5.Wanarn operates on Western Standard Time and Warakurna operates on Central Standard Time, which has a one and a half hour time difference.
6.The Wanarn Community is located approximately 1,646 kilometres from Perth.
7.The Wanarn Community comprises a series of dwellings, offices and stores located adjacent to dirt and gravel streets.
8.The residence occupied by the offender and the deceased was situated at Ninth Street.
9.The Wanarn Community Office was located a short distance away from Ninth Street [and] First Street.
10.About one to two weeks prior to the 9th of November 2020, the offender drove towards the deceased. Tristan Walker-Kelly was sitting at a bench and the offender was in his car at the bowser. The deceased was on the road walking towards him. There was some argument between them, but it was not a full argument. The deceased kept walking towards the offender and the offender drove straight at her. The deceased stepped away at the last minute and she was clipped by the side mirror of the offender's vehicle. The deceased didn't suffer any injuries.
The incident
11.On 9 November 2020, the offender, then aged 51, and the deceased, then aged 54, were at the Wanarn Community (The Community) which is part of Ngaanyatjarra-Giles location adjacent to the Gibson Desert in Western Australia.
12.That morning there was an argument whereby the offender wanted to know why the deceased had not cooked his porridge. As a result, the offender has locked out the deceased from house 30.
13.From time to time the offender and the deceased would have arguments over food, cooking not being done, use of the mobile [phone and the like].
14.The deceased left the house before 9 am and was intending on working that day at the community centre. The deceased was trained in health care and associated services.
15.At one stage that morning after the deceased left the house, she seemed upset and was throwing sand over herself.
16.At some time before 9 am (WA Time) or about 10.30 am (Central Australia Time) on 9 November 2020, Warakurna Police received a call for assistance from the deceased who advised that she had been locked out of the residence and wanted to obtain a Restraining Order. The deceased was advised that police at Warakurna were dealing with another matter and would attend to Wanarn as soon as possible.
17.At about 9 am or shortly after, Western Standard Time, the offender drove a Toyota Landcruiser Utility vehicle, registered number 1EGC 105 (the vehicle) and parked near the fuel bowser at the Community Store in First Street, located near the Community Office.
18.The offender worked and was working for the Community at the time and had access to the vehicle and was familiar with the vehicle.
19.The deceased saw the offender in the vehicle and began walking towards the vehicle, asking the offender for money and/or cigarettes.
20.When the deceased was about at least 30 metres or more away from the offender, the offender drove the vehicle towards the deceased. The offender drove towards the deceased with the intention to either intimidate and/or scare her and/or with an expectation that the deceased would jump out of the way. The offender drove from the petrol bowser and drove toward the deceased at normal speed and the offender did not swerve or the deceased did not move out of the way.
21.The offender hit the deceased directly and her body impacted with the bull bar of the vehicle. The force of the impact by the deceased being hit with the bull bar resulted in the deceased being thrown back. The deceased's head hit the ground when she was flung back from being hit by the vehicle and the offender has driven over the deceased. It was too late for the offender to break when he hit her with the bull bar.
22.This conduct was grossly negligent driving by the offender, driving in the direction of the deceased and knowing the deceased was coming towards him for money [and/or] cigarettes. The act was criminally negligent and resulted in the death of the deceased.
23.The offender drove in the direction of the deceased and did not swerve off. The offender did not look down into his vehicle looking for something between leaving the petrol bowser and hitting the deceased. The deceased did not walk or get into the way of the vehicle near the tail end of the driving by the offender driving towards her. The offender then applied the brakes of the vehicle when he hit the deceased and the vehicle stopped shortly after where her body was laying on the ground.
Post incident
24.The offender got out of his vehicle and went to the deceased and picked her up.
25.One of the residents and the nephew of the deceased, Tristan Walker-Kelly told the offender to 'fuck off' and Mr Walker-Kelly held the deceased in his arms and within under a minute observed that the deceased had passed away.
26.The collision was witnessed by two residents of the community who went over to the offender and punched him in the face a couple of times and kicked him.
27The deceased was taken to the medical clinic at the Community and was provided brief medical care by nurses however the deceased was declared life extinct within minutes of her arrival at the clinic. This is consistent with Dr Clive Cooke's post-mortem that she would have lived for a few minutes once being hit based on the bruising around the eyes and the face and the hip area.
28.In his supplementary post-mortem report dated 9 April 2021…Dr Clive Cooke concluded that the cause of the deceased's death was multiple injuries. Those injuries included:
aa severe head injury being extensive fracturing to the skull;
ba possible spine injury;
cfractures to the right clavicle;
dtwo fractures to ribs on the right; and
esevere fracture to the right side of the pelvis.
29.Dr Cooke was of the view that the skull fractures were severe and are a marker of the severe impact to the head. Due to the decomposition of the deceased, there was no ability to accurately assess the damage to the brain, but the severity of the skull fractures and the fatal outcome indicates that brain injury must have been sustained. This head injury would have caused a concussive effect to the brain which made the brain not work ‑ that is it shut the brain down, and the deceased died shortly afterwards.
30.The vehicle was photographed by attending police officers from Warakurna Police Station before it was damaged and destroyed. There were no vehicle defects that caused the vehicle to drive into the deceased, those actions were all driver-caused by the offender.
31.The offender was transferred to Perth and interviewed at Fiona Stanley Hospital as he had sustained a broken leg by one of the residents at the Community on 11 November 2020 by investigators at the Homicide Squad. The offender declined to answer any questions about the collision.
After the prosecutor had stated the facts of the offence I asked him to confirm that the State was not alleging that the offender's act of driving into and striking the deceased with the vehicle was unlawful because it was a deliberate willed act but rather was alleging that the act was unlawful because it was done in breach of the duty imposed on the offender by s 266 of the Code.[4] The prosecutor provided this confirmation.[5]
[4] Macaree v The State of Western Australia [2011] WASCA 207 [26].
[5] ts 27, 22 May 2023.
Having heard the prosecutor's statement of the facts of the offence I asked the offender's counsel if the facts were accepted. Counsel informed me, in substance, that most of the facts of the offence as stated by the prosecutor were accepted by the offender but that some of the facts as stated that were potentially material to the determination of the offender's culpability for committing the offence were disputed by the offender. The offender's counsel identified the stated facts that were potentially material to the determination of the offender's culpability that were disputed by the offender (alleged disputed facts) to be as follows:[6]
1.The allegation in par 10 of the Statement of Facts;
2.The allegation in par 20 of the Statement of Facts that the offender drove towards the deceased at normal speed with the intention to either intimidate and/or scare her and/or with the expectation that the deceased would jump out of the way;
3.The allegation in par 21 of the Statement of Facts that the offender drove over the deceased;
4.The allegation in par 23 of the Statement of Facts that the offender drove in the direction of the deceased and did not swerve off;
5.The allegation in par 23 of the Statement of Facts that the offender did not look down into his vehicle for something between leaving the petrol bowser and hitting the deceased;
6.The allegation in par 23 of the Statement of Facts that the deceased did not walk or get in the way of the vehicle near the tail end of the driving by the offender towards her;
7.The allegation in par 24 of the Statement of Facts that after getting out of the vehicle the offender picked the deceased up; and
8.The allegation in par 25 of the Statement of Facts as to the conduct engaged in by Mr Walker-Kelly.
[6] ts 30 - 32, 22 May 2023.
In the course of identifying the disputed alleged facts the offender's counsel informed me of the following matters:[7]
1.In relation to par 20 of the Statement of Facts, the offender's version is, in essence, that at the time he hit the deceased with the vehicle he was driving at a slow speed and was in the process of turning the vehicle to drive away from the area in an attempt to avoid a confrontation with the deceased. He did not deliberately drive towards the deceased;
2.The fact that the deceased was approaching the vehicle asking him for money and/or cigarettes is admitted by the offender. The offender's version is that in response to these gestures or words he was, while in the process of trying to drive away from the deceased, also trying to pick up a wallet or purse from the centre console area of the vehicle to throw in the direction of the deceased to make her go away;
3.In relation to par 23 of the Statement of Facts, the offender's version is that he did not drive in the direction of the deceased and fail to swerve off. His version is that he was turning away from the deceased's direction, that as he was turning away he was looking down towards the centre console area of the vehicle for the wallet or purse and that when he looked back up the deceased was in front of the vehicle. His version is that the deceased had placed herself in front of the vehicle probably in an attempt to stop the vehicle and was, by the time he looked up, so close to the vehicle that he could not stop the vehicle or avoid colliding with her;
4.In relation to par 24 of the Statement of Facts, the offender's version is that he did not pick the deceased up but rather placed her in the recovery position. It is common ground between the parties that the offender got out of the vehicle and went to the deceased to check her welfare;
5.In relation to par 25 of the Statement of Facts, the offender's version is that Mr Walker-Kelly assaulted him with a star picket causing a compound fracture to his leg after he had been punched and kicked by the two residents referred to in par 26 of the Statement of Facts;
6.In the circumstances where the offender was aware of the size and weight of the vehicle and was aware that the deceased was approaching the vehicle at a 'power walk type of speed', it was criminally negligent for the offender to fail to stop the vehicle and to look away even momentarily. The offender's conduct in failing to stop the vehicle to ensure that that there was no collision between the vehicle and the deceased and looking away while trying to retrieve the wallet or purse was criminally negligent. It was on this basis that the offender had pleaded guilty to the offence; and
7.The offender's position is that if he had been paying complete attention to where the deceased was he would, given the speed of the vehicle, have been able to brake in sufficient time to avoid hitting the deceased.
[7] ts 30 - 33, 22 May 2023.
After identifying the disputed alleged facts the offender's counsel submitted, in substance, that my findings in relation to the disputed alleged facts, or at least some of them, would likely impact on my assessment of the degree of the offender's criminal negligence in causing the deceased's death and consequently also my assessment of his culpability for committing the offence. Counsel therefore submitted that it was necessary for a trial of issues to take place.[8]
[8] ts 33 - 34, 22 May 2023.
The prosecutor supported the offender's counsel's submission that it was necessary for a trial of issues to take place.[9]
[9] ts 34, 22 May 2023.
After hearing counsel's submissions on the point, I was satisfied that the disputed alleged facts, or at least the majority of them, were material to my assessment of the degree of the offender's criminal negligence in committing the offence and were therefore also material to my assessment of the seriousness of the offender's conduct in committing the offence. I therefore ruled that it was necessary for a trial of issues to take place so that I could make findings in relation to the disputed alleged facts.[10]
[10] Criminal Procedure Act 2004 (WA), s 129(3).
Burden and standard of proof - principles to be applied
The principles to be applied on a trial of issues in relation to the burden and standard of proof are well established. The principles are as follows.[11]
[11] Sentencing Act 1995 (WA), s 15; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [24] ‑ [27]; Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [14], [98] ‑ [99], [164]; Larkin v The Queen [2012] WASCA 238 [51]; Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425 [83] ‑ [85].
The State must prove an aggravating factor beyond reasonable doubt. An aggravating factor is a factor that increases an offender's culpability or moral blameworthiness for committing an offence.[12]
[12] Sentencing Act, s 7(1).
An offender must prove a mitigating factor on the balance of probabilities. A mitigating factor is a factor that decreases an offender's culpability or decreases the extent to which they should be punished.[13]
[13] Sentencing Act, s 8(1).
If the State fails to prove a fact or circumstance which is adverse to an offender (that is, fails to prove an aggravating factor), but an alternate fact or circumstance favourable to an offender (that is, a mitigating factor) has not been proved on the balance of probabilities, the court is not bound to make a finding of fact on the basis of the more favourable version. In other words, if the court is not persuaded of the existence of a fact it does not exist for the purpose of determining the facts of an offence.[14]
[14] Ellis v The State of Western Australia [2013] WASCA 220 [37] - [41]; Wellstead v The State of Western Australia [2019] WASCA 130 [68] - [76]; Ramsden v The State of Western Australia [2019] WASCA 179 [19] - [28]; Shafto v The State of Western Australia [2020] WASCA 102 [18] - [19].
The burden of proving the disputed alleged facts
At the trial of issues the State accepted that it bore the burden of proving all the disputed alleged facts beyond reasonable doubt. However, despite the State's position the offender accepted that he bore the burden of proving on the balance of probabilities the following alleged facts:
1.At the time of hitting the deceased with the vehicle he was driving at a slow (as opposed to normal) speed;
2.As he was turning the vehicle he looked away and down for a short time while looking for the wallet or purse;
3.The deceased placed herself in front of the vehicle; and
4.He put the deceased in the recovery position.
The offender accepted that he bore the burden of proving the above alleged facts on the basis that if proved they would be mitigatory.
The State's allegation is that the offender was driving the vehicle at a 'normal' speed at the time that he hit the deceased. The State bears the burden of proving this allegation beyond reasonable doubt. If the State does not prove this allegation beyond reasonable doubt then my finding will necessarily be that the offender was driving the vehicle at something less than a 'normal speed' at the time that he hit the deceased. Having said this, I accept the correctness of the offender's position that if he wants to be sentenced on the basis that he was driving at a 'slow' speed at the time that he hit the deceased, he bears the burden of proving this alleged fact on the balance of probabilities.
Even though the State in the Statement of Facts expressly alleges that the offender did not look down into the vehicle looking for something between leaving the fuel bowser (bowser) and hitting the deceased and that the deceased did not walk or get in the way of the vehicle, it is clear that it did so because it knew from the plea negotiations that had taken place that the offender would be seeking to make assertions to the opposite effect by way of mitigation. Moreover, the reality is, as the offender accepts, that the State's allegations that the offender did not look down and that the deceased did not get in the way of the vehicle are not allegations that if proved will further aggravate the seriousness of his conduct as alleged in pars 20 and 22 of the Statement of Facts. Rather, the position is that if it is established that the offender did look down and that the deceased did get in the way of the vehicle, the seriousness of the offender's conduct will be reduced. In these circumstances I agree with the offender's concession that he bears the burden of proving on the balance of probabilities that he did look down into the vehicle as he was turning the vehicle and that the deceased did place herself in front of the vehicle. If he fails to do so I will not make findings to this effect.
I accept that if it is established that the offender put the deceased in the recovery position this will mitigate, albeit only to a very minor extent, the seriousness of his overall conduct in committing the offence. Accordingly, once again I agree with the offender's concession that he bears the burden of proving this allegation on the balance of probabilities.
The evidence adduced
At the commencement of the trial of issues the offender, with the agreement of the State, tendered a document containing admissions made by him pursuant to s 32 of the Evidence Act 1906 (WA).[15] The admissions were in the following terms:
1.On the 9th of November 2020 at all relevant times from 9 am onwards (Western Standard Time) [the offender] was the driver and sole occupant of a Toyota Landcruiser Utility vehicle registration number 1EGC 105 (The Vehicle);
2.The Vehicle is a 2012 white Landcruiser Tray Back Utility and weighed 2,580 kilograms;
3.While it was being driven by the [the offender] the Vehicle collided with [the deceased];
4.The collision between the Vehicle and the [the deceased] was not caused by any defect or mechanical failure in the Vehicle.
5.The collision between the Vehicle and [the deceased] caused the death of [the deceased].
[15] Exhibit 1.
The State called the following witnesses to give evidence on the trial of issues:
1.Detective Sergeant Clinton Vredenbregt;
2.Dr Clive Cooke, forensic pathologist;
3.Mr Tristan Walker-Kelly; and
4.Mr Ryan Richards.
The State also tendered by consent the signed witness statements of a number of witnesses. The statements formed part of the prosecution brief.
The offender elected to give evidence on the trial of issues.
Before turning to the determination of the disputed alleged facts, it is necessary to set out the substance of the evidence adduced at the trial of issues.
Detective Clinton Vredenbregt
Detective Vredenbregt was the investigating officer. He gave evidence about the investigation into the offence. During his evidence he was shown and authenticated an aerial image of Wanarn Community (Community), [16] photographs taken by police on 9 November 2020 of the area within the Community at which the offence was committed and the general surrounds,[17] video footage taken by police on 10 November 2020 of the area within the Community at which the offence was committed and the general surrounds[18] and photographs taken by police on 10 November 2020 of the area within the Community at which the offence was committed and the general surrounds.[19]
[16] Exhibit 2; Annexure A to these reasons.
[17] Exhibits 3.
[18] Exhibits 4.
[19] Exhibit 5.
Detective Vredenbregt testified that the first police officers to arrive at the Community after the commission of the offence were from the Warakurna Police Station. He testified that the officers arrived on the morning of 9 November 2020 and that they arrested the offender. He testified that the officers took a number of photographs of the scene before having to leave the Community with the offender by around lunchtime due to unrest in the Community. In the course of identifying and authenticating the photographs taken by the officers on 9 November 2020 he confirmed his understanding that the photographs of the vehicle showed the vehicle in the position that it had been stopped immediately after the collision with the deceased and that the vehicle had not been moved following the commission of the offence.[20]
[20] See exhibits 3.1 - 3.3, 3.6 - 3.9 and 3.12 - 3.13; Annexures B1 - B9 respectively to these reasons. The bowser at which the deceased was parked immediately prior to the offence can be clearly seen to the rear left of exhibit 3.1. The bowser is the white rectangular structure at the right hand end of the large white cylindrical fuel tank.
Detective Vredenbregt testified that the police officers who attended the Community on 9 November 2020 did not have the opportunity to conduct a forensic examination of the vehicle before being required to evacuate the Community due to the unrest.
Detective Vredenbregt testified that by the time he and other officers from the Homicide Squad in Perth arrived at the Community at around 11.00 am on 10 November 2020 the vehicle, although still in the same position as it had been in on 9 November 2020, had been completely destroyed by fire.[21] He testified that he had been made aware that the vehicle had been burnt out sometime during the afternoon of 9 November 2020 before he had left Perth. He testified that the vehicle was so extensively damaged that it was not able to be forensically examined.
[21] Exhibits 5.22 - 5.25, being Annexures C1 - C 4 respectively to these reasons, are photographs of the vehicle after it had been burnt out. In his evidence Detective Vredenbregt testified that the dirt that can be seen pushed up against the side of the vehicle had been dumped there by community members with a front end loader to prevent any fuel leaks.
Detective Vredenbregt explained that on the night of 9 - 10 November 2020 a dust storm had blown through the Community with the result that it was not possible to see any tyre tracks of the vehicle.
Detective Vredenbregt testified that the distance between the bowser and where the vehicle had come to rest was not measured. He estimated the distance to be 30 m, not less and possibly more.
Detective Vredenbregt confirmed by reference to two of the photographs taken on 10 November 2023 that there was an area of raised dirt in front of the fuel tank and bowser.[22] He said that the raised area of dirt was probably about knee high. He said that his impression of the raised area was that it was like a 'road berm to stop cars going up' or like a 'containment line in case the bowser spilled'. He said that he was not sure if a vehicle could be driven onto the raised area because his perception was that the raised area was not a 'consistent berm' and was 'just like mounds of dirt'. He said that he was unsure what the purpose of the raised area was.
[22] Exhibits 5.12 and 5.17; Annexures D1 - D2 respectively to these reasons.
Detective Vredenbregt confirmed that the call made by the deceased to the police in which the deceased stated that she wanted to obtain a restraining order against the offender was received by the police at 8.53 am Western Standard Time on 9 November 2020.
Dr Clive Cooke
Dr Cooke gave evidence in relation to the injuries suffered by the deceased referred to in the Statement of Facts. Much of his evidence was given by way of elaboration of the references to his findings and opinions contained in the Statement of Facts.
In the course of his evidence Dr Cooke said the following.
The deceased sustained significant fractures to the skull bone and pelvis with a lesser chest injury and a probable spinal injury.
Considerable force would have been required to cause the fractures to the deceased's pelvis and skull.
The pelvis fracture was the type of injury that may be seen with a vehicle impact.
The pelvis fracture correlated with an abrasion on the back of the deceased's right hip region. The fracture also correlated with a deep underlying injury through the fat and the muscle. The abrasion was unusual with an angulated appearance and sharply defined upper and front ends.
The unusually angled area of the abrasion on the back of the right hip region is a blunt force impact. It is consistent with an impact from a vehicle.
The skull fractures and the probable neck injury could have resulted from one or more impacts. The linear skull fracture at the back of the deceased's head most likely resulted from an impact such as falling backwards to the ground.
The extensive fracturing to the skull included fracturing to the top of the eye sockets; the supraorbital plates. The fractures could have been caused at the same time as the fractures to the back of the skull. The bone at the top of the eye sockets is quite thin. If a person goes over backwards and bangs the back of their head, the force of the impact is transmitted through the brain to the thin bone at the top of the eye sockets and this can cause fracturing of that part of the skull.
The possible spinal injury may also have been caused in the same way as the fractures to the eye sockets; that is, by falling back onto the head.
The deceased had some abrasions on her nose, her left and right facial cheeks, her forehead and towards the back of the side of her right shoulder. Abrasions are caused by a rough impact; by the skin scraping on something rough.
The abrasions to the deceased's facial area could have been caused by the underside of a vehicle.
The abrasion to the back of the deceased's right shoulder could easily have occurred when she went over backwards. It could also have been caused by her being dragged. However, given the small size and number of the abrasions, if they were caused by her being dragged she was dragged for only a short distance.
There were a few little scratches and abrasions in the middle area of the deceased's upper arm. They were tiny abrasions. It is possible that they were caused by the deceased being dragged under a car. However, they are very tiny and could be the result of the deceased falling over.
The deceased had bruising to the middle front area of her right arm. This was a blunt force injury. It could correspond with part of the bull bar of the vehicle striking that area. It could also have been caused by the deceased landing on her right side on the ground. However, the bruising was fairly localised. If the deceased fell onto something sticking up, such as a protruding rock, this could have caused the bruising. The bruising could also have been caused by the deceased's body hitting the undercarriage of the vehicle.
The deceased had some abrasions on her back area. However, they were not very long. If they were caused by the deceased sliding when she was knocked back onto the ground she did not move very far.
In his opinion the abrasion to the back of the deceased's right hip is the most likely primary impact area. It is uncommon to see an abrasion with angulated sharp edges that has been caused by something natural. The appearance of the abrasion is much more typical of something that is man-made or manufactured. He therefore thinks that the abrasion to the back of the right hip is the primary impact site of the vehicle, particularly when regard is also had to the deep bruise beneath the skin that goes all the way through to the pelvis and to the underlying fracture to the pelvis.
The pelvis fracture cannot be described as a minor fracture. It was not severe in the sense of being totally smashed. However, it was a significant injury.
He thinks that the pelvic fracture is consistent with the deceased being hit on the right side by the bull bar of the vehicle. The fracture is the result of a direct impact of something that is manufactured and is very solid.
The fracture to the right clavicle is a blunt force injury of some type. The fracture could have been caused by the deceased being struck by the bull bar of the vehicle partly on her right side. However, it could also have been caused by the deceased falling heavily on her back and partly on her right side. The fracture is consistent with the deceased being hit by the bull bar and landing towards her right side.
It is possible that the clavicle fracture could have been caused by the undercarriage of the vehicle. However, he is not a 'big fan' of this scenario because there is no abrasion overlying the area of the clavicle fracture. In his view it is a heavy impact fracture.
He is unable to determine the speed of the vehicle at the point of impact with the deceased.
In his opinion the most likely mechanism for the cause of the deceased's injuries is that she was hit by the vehicle in the right hip region which fractured her pelvis and caused her to fall backwards and impact the back of her head with some force which caused the skull fractures. The initial impact would have to have been a moderate force impact to cause the hip fracture.
He did not find any tyre marks on the deceased's body. Typically if someone is run over by a vehicle, especially by the tyres of a vehicle, there will be a crushing effect on the body. He did not see any crushing effect on the deceased's body. However, he cannot rule out that the deceased's body may have gone between the two tyres and been momentarily dragged.
Analysis of the deceased's blood revealed that her blood cannabis level was 23 ug/L. From his experience this level of cannabis in the blood is consistent with the recent use of cannabis and is also consistent with intoxication with cannabis.
He cannot conclusively say that the deceased was dragged under the vehicle even momentarily.
The abrasion type injuries on the deceased's back and on the back of her shoulder are all injuries that could have been caused by her falling backwards onto the road surface. The only injuries that 'are not explained' are the facial abrasions to the deceased's forehead, cheeks and nose. He does not know how the deceased received these injuries.
He agrees that the force of the impact with an object depends on the mass and speed of the object.
He has seen photographs of the vehicle. He accepts, given the size and weight of the vehicle, that even if the vehicle was travelling at a relatively low speed it could still cause at least a moderate force impact.
The impact to the back of the deceased's head was significant. He would have expected her to have been rendered unconscious by the impact. In this scenario he is not sure how she received the abrasions to her face and nose.
He agrees that the vehicle could have been going at a slow speed. However, he is unable to provide an estimate of the speed. He cannot say whether the vehicle, if it was moving at walking pace, could have caused the deceased's extensive injuries.
Tristan Walker-Kelly
Mr Walker-Kelly's evidence was as follows.
In November 2020 he was living at the Community. He was living with the offender and his aunty, the deceased. He had been living with them at the Community for about three to four months.
He moved to the Community from Hamilton Hill. He moved to the Community with the offender and the deceased to get away from drinking alcohol and taking drugs.
The Community was a dry community. There was no alcohol at the Community.
While he was living with the offender and the deceased there were times when he heard voices talking to him out of the television. He is a tribal person and he strongly believes in these kinds of things. It is the case that the offender moved the television into the offender's and the deceased's bedroom so that it would cause him less problems.
The offender and the deceased would constantly argue about childish matters. The arguments were only verbal. They were never physical.
About one or two weeks prior to the offence he saw the deceased drive the vehicle from the bowser directly at the deceased while the deceased was walking on the open road (First Street) into the community office. The offender drove 'direct straight' at the deceased. He did not see if the offender made any contact with the deceased. The deceased moved or dodged out of the way. He spoke to the deceased. The deceased brushed the incident off and was not injured.
At the time that he saw this prior incident he was sitting where he sat every day. He was sitting on a seat under a tree that was near some workers' residences and the aged care home.
On the day of the offence he knows that he did not have any drugs in his system because he had walked through the desert from South Australia to communities.
On the morning of 9 November 2020 (the day of the offence) he woke up to a racket in the kitchen. The racket was being caused by the offender making porridge. The deceased was relaxing playing on her phone. The offender told the deceased to get off the phone and make his porridge. The offender and the deceased argued. The offender chased her out of the house with a stick. The deceased went to a neighbour's house to try and get some cigarettes.
The offender left the house in the vehicle.
Later that morning he was sitting in his usual spot, the spot he had been sitting when he saw the prior incident one or two weeks previously.[23] He could see the offender parked up at the bowser. He could also see the deceased outside the community shop asking for cigarettes.
[23] Mr Walker-Kelly showed where he was sitting by marking with the letter 'M' a photograph that was tendered as exhibit 10; Annexure E to these reasons.
The offender was waiting at the bowser for the shop keeper to come and fill the petrol up. The offender was at the bowser for a half an hour to an hour or so. The front of the vehicle was facing towards the direction of the community office and the back of the vehicle was facing in the direction of the community shop.
There was a little bit of cement under and around the bowser. The area in front of the bowser is raised up a little bit, by approximately 15 cm.
Before he saw the offender at the bowser he saw him at the generator. He also saw the offender drive from the generator into the community shed. The offender was mucking around inside the shed. From the shed the offender drove to the bowser.
He saw the deceased walking in the direction of the offender while the offender was parked at the bowser. The deceased was saying, 'Give me a fucking smoke'. She was making a smoking gesture with her two fingers. She was yelling and swearing about smokes.
The offender drove away from the bowser and hit the deceased. He did not hear the vehicle's engine rev. He was not able to say what speed the vehicle was going. After the offender drove away from the bowser he headed straight.
When the offender hit the deceased he heard 'two cracks'.
At the time that the deceased was hit she was walking along the left hand side of First Street in the direction of the bowser where the offender was parked in the vehicle.
After hitting the deceased the offender did not stop. He drove the vehicle for a short distance further.
When the deceased was hit by the vehicle she fell backwards as if she was trusting someone to catch her. It was at this time that he heard the two cracks.
The vehicle hit the deceased 'full on straight'. The roo bar of the vehicle hit the deceased in her chest. He heard a crack when the deceased fell to the ground and then a crack again when the vehicle went over.
He saw the deceased fall backwards and then heard 'crack crack'.
The offender drove straight at the deceased. It is a lie to say that the deceased at any stage tried to jump towards the vehicle. The deceased walked in front of the direction of the vehicle at the time she was hit by the vehicle.
He could see the offender from the time he drove off from the bowser to when he hit the deceased. At no stage did he see the offender look into the vehicle for something. At no stage did he see the offender try and swerve away from the deceased.
He would estimate that the distance between where he was sitting and where the deceased was hit by the vehicle to be 30 - 40 steps. He was about 30 - 40 m away from where the deceased was.
By the time he got to where the deceased was hit the offender was out of the car and was holding the deceased. The offender was looking at the deceased saying, 'Babe, babe. Wake up babe'. As he approached the offender got up from the deceased. He told the offender that he was going to get a hiding. He told the offender, 'Don't you fucking go man, stay here'.
He then held the deceased for about 30 - 40 seconds. He knew she was dead.
At this point people from the clinic started heading towards the deceased. They were trying to roll the deceased over.
The offender was trying to get to the clinic. He grabbed an iron bar from the vehicle and wacked the offender in the leg with the bar.
The distance between where the offender stopped the vehicle and where the deceased's body was on the ground was about 15 - 20 steps.
Prior to being hit the deceased was walking directly up the road (First Street) towards the bowser. It is not correct to say that she came from the community office and was walking across the road (First Street) towards the community shop rather than straight down the road.
He remembers that while he was sitting in his usual spot the deceased came over to him and asked him for a smoke. However, he did not give her a smoke. It was after this that the deceased walked to the front of the office area and was asking other people, including Ryan Richards, if they had smokes.
At the time that the deceased was walking towards the offender she was walking at her normal pace. She is a fast walker.
It is not correct to say that as the deceased was walking towards the offender and was about 30 or 40 m away from him, the offender was out of the vehicle and got into the vehicle. He was already inside the vehicle.
From where he was he could not hear the vehicle start.
As the vehicle started to move it did a left hand turn from where it was facing so it that it was moving back in the direction of First Street.
When the vehicle started to move the deceased was about 20 m away from the vehicle. The deceased kept walking fast in the direction of the vehicle. She was still yelling about the smokes. She was walking on the side of the road where the vehicle should not be.
The deceased did not walk in front of where the vehicle was going. The vehicle had done a U-turn and was coming back onto the road.
He could see from his position where the offender was looking as he was driving. From the run up to the impact he had a clear view of what was occurring. He could see the offender's figure in the vehicle and the direction the offender was looking.
He did not hear the vehicle change gears. It was not moving slowly. It is not correct to say that the vehicle was moving very slowly and not much faster than walking pace.
When the deceased was hit she did not have her back to the bull bar of the vehicle. She fell back as though being hit by something with force. At the time she fell back onto the ground she was out of his sight because his vision was blocked by the corner of the community office. He did not see the vehicle go over the deceased but he heard 'crack crack'.
When the offender was holding the deceased he did not put her on her side in the recovery position. The offender did turn the deceased on her side 'but not on the right side'.
It was while the offender was holding the deceased that the offender was attacked by Ryan Richards and Thelma Richards. Thelma hit the offender with a rock and Ryan was punching the offender and hitting him with a tube of some sort.
He attacked the offender with the iron bar after the offender had been attacked by Thelma and Ryan.
It is not correct to say that by the time he caught up with the deceased and attacked him the deceased was at the back of the clinic and the ambulance was already attending to the deceased.
He estimates the distance between the bowser and where the deceased was hit to be 20 - 25 m.
During his evidence Mr Walker-Kelly was shown and authenticated a copy of the photograph which had already been tendered as exhibit 3.1 and on which he had marked with the letter 'B' the offender's position while parked at the bowser, with the letter 'X' where the deceased was hit by the vehicle and with the letter 'J' the position on the left side of First Street on which the deceased had been walking towards the offender prior to being hit by the vehicle and at the time of being hit by the vehicle.[24] In addition, Mr Walker-Kelly was also shown and authenticated a photograph on which he had marked with a circle where the deceased was on the ground after being hit by the vehicle[25] and a sketch that he had drawn showing the bowser, the community office, the direction that the offender had driven the vehicle after leaving the bowser and the position where the offender hit the deceased with the vehicle (marked with an 'X').[26]
[24] Exhibit 7; Annexure F to these reasons.
[25] Exhibit 8; Annexure G to these reasons.
[26] Exhibit 9; Annexure H to these reasons.
In his evidence Mr Walker-Kelly, while being shown the photographs referred to in the previous paragraph, pointed out that it was possible to see in the photographs close to where he had indicated that the deceased had been hit by the vehicle, a flower that he had left for the deceased and what appear to be two small pieces of black pipe sticking up out of the ground (described by Mr Walker-Kelly in his evidence as 'water sprinkler hose thingy' and 'little black thing').[27]
Ryan Richards
[27] ts 93 and 95, 23 May 2023. Exhibit 5.28, being Annexure I to these reasons, is a close up photograph of the black pieces of pipe and flower pointed out by Mr Walker-Kelly in the course of giving his evidence in relation to the photographs referred to in the previous paragraph (exhibits 7 - 8).
Mr Richards gave evidence to the following effect.
In November 2020 he was living at the Community. He grew up in the Community.
He had known the deceased for a long time. He knew the deceased as Aunty.
He knew the offender. The offender did work for the Community.
The offender drove the vehicle at the Community. He had been driving the vehicle for 'about a couple of years'.
Early in the morning of 9 November 2020 he saw the deceased at the community office. The deceased was asking for money.
On the same morning he saw the offender at the bowser. The offender was filling the vehicle with petrol. He did not speak to the offender. He was at the community office when he saw the offender at the bowser.
He saw the deceased walking across First Street towards the community office. As she was doing this she was asking the offender for money. The offender was sitting in the vehicle. The offender said that he did not want to give her money.
He saw the offender 'bump' the deceased with the roo bar of the vehicle. The vehicle hit the deceased's back area.
When the offender drove away from the bowser towards the deceased and hit the deceased he was driving at a fast speed. When the vehicle hit the deceased her body and head went down.
After the vehicle hit the deceased the vehicle went over the deceased and then stopped. The vehicle stopped about two steps from where the deceased was lying on the ground.
After the deceased had been hit the offender tried to run off. This made him angry. He hit the deceased on the head with his hands.
At the time that the offender drove off from the bowser the vehicle was facing across First Street towards the community office. As it left the bowser it turned towards the right and onto First Street before hitting the deceased. At the time the deceased was hit she was walking across the road from the direction of the community shop towards the community office towards going back home. She was calling out for money. She did not get all the way across First Street because she got hit.
The offender turned the vehicle to the right when he left the bowser. He did not turn left. When the vehicle was parked at the bowser the front of the vehicle was pointing towards the shop.
He watched the offender driving the vehicle until it hit the deceased. The offender's vehicle went straight and did not swerve. He did not see the offender duck down or look down before the vehicle hit the deceased. The offender was driving and looking at the deceased. He had both hands on the wheel with his head up and was looking out the front of the vehicle.
The deceased did not try and jump in front of the vehicle.
When the offender turned the vehicle to the right he 'turned fast, just a little bit'. He could hear the vehicle's engine. The offender was going fast not slow.
At the time that the vehicle hit the deceased the vehicle was going 'not too fast, but not too slow, but at a speed limit that was fast enough'.
He is sure that before the deceased got hit she was coming from the shop side of First Street not the office side. The deceased was walking slow.
When the offender was driving the vehicle before he bumped the deceased he did not look down or take his eyes off the road. His eyes were on the road. He was looking ahead of him.
After the deceased got bumped she was laying on the road. The offender got out of the vehicle to where the deceased was and was holding the deceased in his arms. His baby sister Thelma put the deceased on her side. It was not the deceased who did this.
He did not have anything to drink on the day that he saw the deceased get bumped by the vehicle.
He saw Tristan Walker-Kelly hit the offender with a pipe. Tristan hit the offender where the deceased was lying on the ground. He saw the offender get a 'busted leg'.
Where the offender was pulled up on the side of the bowser the ground is a little bit higher than the road.
When the deceased was walking from the community shop side across First Street towards the community office she was walking in front of the vehicle. The vehicle went straight ahead.
The offender was looking at the deceased and was driving. The offender turned right and went straight to the deceased.
During his evidence Mr Richards was shown and authenticated a copy of the photograph which had already been tendered as exhibit 3.1 and on which he had marked with the letter 'B' the offender's position while parked at the bowser and with the letter 'X' where the deceased was hit by the vehicle.[28] He also confirmed that he had drawn on the photograph a line showing the direction in which the vehicle moved when it drove away from the bowser.
Tendered witness statements
Doreen Tucker
[28] Exhibit 18; Annexure J to these reasons.
The State tendered two witness statements of Ms Doreen Tucker dated 9 November 2020 and 20 April 2023.[29]
[29] Exhibits 20 - 21.
Ms Tucker's material evidence as set out in her statements is as follows.
On the morning of 9 November 2020 she and her friend Shane West drove to the Community to see the offender. The offender is Shane's uncle.
She and Shane arrived at the Community at about 9.00 am. They drove to the deceased's and the offender's house. When they got there only the deceased was at the house. She was locked out. The deceased told them that she and the offender had argued about her not making porridge.
The offender arrived at the house a short time later. He let the deceased into the house. He was 'quiet and grumbling'.
She and Shane decided to drive to the community shop. While they were seated in the car they were parked between the shop and the bowser. Shane was in the driver's seat. She was in the rear left passenger seat. Shane had his window down and was talking to someone he knew.
As she and Shane were sitting in their car they saw the offender in the vehicle about 10 m - 15 m in front of them. He was parked at the bowser.
She saw the offender start driving back behind them to the left of their vehicle. The offender took off at normal speed but she cannot remember what speed he was driving. She then heard a 'thud noise, like a car going over s speed bump'. She turned around to see the deceased lying on her back behind the offender's vehicle. The offender was already next to the deceased and pulled her onto her right-hand side. The offender sat down next to the deceased. As the offender was sitting there Tristan hit him with a pole a few times.
She and Shane immediately left and drove down the road.
Shane West
The State tendered two witness statements of Mr Shane West dated 9 November 2020 and 18 April 2023.[30]
[30] Exhibits 22 - 23.
Mr West's material evidence as set out in his statements is as follows.
On the morning of 9 November 2020 he drove his partner, Doreen Tucker, and two 'young fellas', Christopher West-Mitchell and Dixon Fowley, to the Community. They arrived at the Community at around 9.00 am.
They drove to the offender's and the deceased's house. When they got there nobody was home. A short time later the deceased walked over. She told them that she and the offender had been arguing over the offender wanting her to make porridge. She was 'growling and sweary'.
About 3 minutes later the offender came home. He said 'hello' to the offender but the offender walked past him and did not answer him. The offender looked angry. The offender told the deceased to leave so she did.
He, Doreen, Christopher and Dixon then left. He parked the car near the Community shop 'facing towards the community'. In front of his car was another car. Kamos Mitchell was in the driver's seat of the other car.
While he was talking to Kamos he saw the deceased coming from the community office near the shop. He spoke to the deceased for a minute. She walked off towards the office. While he was talking to Kamos he could hear the deceased growling from the office. She was still angry.
He noticed the offender drive from around the back of the shop and park in front of him near the bowser. The offender did not fuel up. He just sat in the vehicle.
He turned back to Kamos and Dixon and started talking again. While he was talking he heard the offender's vehicle leave. He did not see the vehicle leave, he just heard it. The vehicle took off at normal speed. About 10 - 15 seconds after he heard the vehicle take-off he heard two loud bangs and tools hitting a tray.
He got out of his car and walked to the back of the car. He was concerned because there are no speed humps 'around there'; it is a flat road. He saw the deceased lying on the road. She was a couple of metres behind the offender's vehicle. The offender was already out of his vehicle and was turning the deceased on her side. The offender looked shocked.
A 'young fella' ran over and started hitting the deceased with a steel pipe. Then others ran over and started fighting the deceased. He told Christopher and Dixon to get in the car. He then drove off.
Karen Cooke
The State tendered two witness statements of Ms Karen Cooke dated 10 November 2020 and 10 May 2023.[31]
[31] Exhibits 24 - 25.
Ms Cooke's material evidence as set out in her statements is as follows.
In November 2020 she was living at the Community.
Just after 8.00 am on 9 November 2020 she sat down in the shade at the side of the community office. She heard the offender yelling over at the garage. He yelled, 'Go away'. She also heard the deceased shouting. The deceased came out of the garage and sat down on the ground under a tree. The deceased was upset. The deceased started throwing sand over her head and body. In her culture putting sand on yourself is a sign of distress.
She got up and walked over to the deceased. She and the deceased walked over to the front of the community office and waited out the front for it to open. Soon afterwards the office manager came and opened the office. She went inside the office to the money room. The deceased remained outside the office.
She remained in the community officer for about half an hour. She then heard lots of wailing and shouting outside and saw a group of people near a Toyota in front of the office. She could not see much but she realised what had happened so she started wailing in sorrow. She left under a tree to be by herself.
While she was in the Community office she did not hear any car or any bang.
Ann Appleton
The State tendered two witness statements of Ms Ann Appleton dated 10 November 2020 and 18 April 2023.[32]
[32] Exhibits 26 - 27.
Ms Appleton's material evidence as set out in her statements is as follows.
In 2020 she was living at the Community. She was employed at the Ngaanyatjarra-Giles Health Centre (Health Centre) at the Community.
On the morning of 9 November 2020 she was at the washing area located to the right of the Health Centre. It is an outside area surrounded by a mesh cage.
She could see a few people, she would say 10 - 15, hanging around the community office.
She saw the deceased storm up past the community office screaming, 'We have no fucking money'.
She was looking over at the group of people around the community office sporadically checking what was going on.
Suddenly she heard a really loud bang. It was like the sound of a truck crashing through a brick wall. She looked to see what happened and saw the deceased lying on the ground on her stomach lifeless. The deceased was laying in between the petrol bowser and the community office.
There was a group of people standing around the deceased, looking at her but not helping. She kept looking over and saw someone had put the deceased in the recovery position on her side.
At the time of hearing the bang she did not hear anything else. She did not hear or see any car before, during or after.
She was standing approximately 35 m away from where the deceased was. Her view was slightly obstructed by the cage. She could see the back of the community office and the back of the large fuel tanker of the petrol bowser. She then saw the ambulance arrive.
Some time later she saw the offender walking towards the Ngaanyatjarra-Giles Health Community Care Clinic. He was being followed by a group of men holding Woddies (big mulga sticks). The men started hitting the offender with the Woddies. The offender fled, she assumes to the clinic.
Peter Taylor
The State tendered the witness statement of Peter Taylor dated 10 November 2020.
Mr Taylor's material evidence as set out in his statement is as follows.
On 9 November 2020 he was employed as the acting manager at the Community's shop.
Only staff members have access to the bowser. People cannot self-serve.
At about 9.35 am the shop had its first paying customer for fuel. He usually does the fill ups. When he went outside he saw a lot of people standing around a lady who was lying on the ground. He saw the vehicle.
On 9 November 2020 the usual person who drove the vehicle was on holiday. The offender had been filling in for him and using the vehicle.
He assisted the person with their fuel. He could hear raised voices. The people looked in shock. He did not see the offender.
The offender
The offender's evidence was as follows.
Tristan Walker-Kelly is his nephew.
In 2020 he, the deceased and Tristan left Hamilton Hill in Perth to live at the Community. They moved to live at the Community because Tristan wanted to get away from his drug use in Perth.
He and the deceased lived with Tristan in a house at the Community. He and the deceased used the master bedroom. Tristan had one of the other bedrooms.
The Community is a dry community. However, he did smoke cannabis at the Community.
Tristan did have a few issues after they started living at the Community. He and the deceased could not watch television because Tristan would see things coming out of the television and they were worried that he would smash the television. He and the deceased therefore took the television into their bedroom.
While he was living at the Community he was the Municipal Officer for the Ngaanyatjarra tribe. Part of his job was to maintain the water pumps that were 15 - 16 km out of the Community and to monitor the fuel in the generator. He also undertook general maintenance work around the Community. To do his work he used the vehicle.
The vehicle was a four wheel drive tray back. It had a pod on the rear right side that was used to carry fuel. The pod had a capacity of 800 litres.
At the time of the offence his boss was away and it is for this reason that he had the use of the vehicle. He thinks that he had possession and use of the vehicle for at least a couple of weeks before 9 November 2020. During this period he drove the vehicle every day. Prior to being in possession of the vehicle for the two week period he thinks he would have used the vehicle about 10 or 20 times over a period of approximately 6 months. He was, at the time of the offence, very familiar with how the vehicle drove.
The incident that Tristan described as a having occurred one or two weeks prior to the day of the offence did not occur.
On the morning of the offence he tried to make some porridge. He saw the deceased on her phone. He asked the deceased if there was any chance that she could make the porridge. However, the deceased was wrapped up in some sort of game on her phone. He and the deceased started having a verbal argument from that point onwards. It was not a physical argument.
The deceased left the house and went to the next door neighbour's house looking for smokes. He did not chase the deceased out of the house with a stick. At the time that the deceased left the house she was upset.
After the deceased left the house he left for work in the vehicle.
He drove from his house to the Community's generators. He checked the generators. From the generators he drove to the Community's work sheds. While he was at the work sheds he saw the deceased walk past the front gate of the sheds. He did not say anything to the deceased and she did not say anything to him. He saw the deceased walk to a tree and sit down with Karen Cooke.
After he had been at the work sheds for a short time he drove the vehicle to the petrol bowser. He was going to fill the vehicle up with petrol.
He parked the vehicle at the bowser. The front of the vehicle was facing in the direction of the community office. The fuel cap was on the right side of the vehicle so the fuel cap was closest to the bowser.
When he drove from the work sheds to the bowser the deceased got up from where she was sitting with Karen Cooke and walked to the community office.
At the time that he got to the bowser the community shop was still closed. He therefore waited in the vehicle for the shop to open so that he could obtain the key to the bowser and fill the vehicle up. He was at the bowser for about 15 - 20 minutes before he hit the deceased with the vehicle.
The bowser is on a cement block. The area around the bowser is a little higher than the rest of the ground. It is about 15 cm higher. The vehicle's wheels were on the raised up area.
While he was waiting at the bowser he saw the deceased walking into the community office and then come out of the office. The office was about 25 - 30 m away from where he was parked at the bowser.
When the deceased came out of the office she started yelling at him, 'Give me smokes mother fucker. Give me smokes'. He was outside the vehicle at this time. He did not answer the deceased because he did not want to. He decided to leave. He did not want a confrontation in public. He got into the vehicle and put the vehicle in first gear and then released the clutch. Once he released the clutch the vehicle started to move without him having to put his foot on the accelerator. As he rolled down the slight mound on which the bowser was situated he started making a slow left hand U-turn. At the time he was doing this he did not see where the deceased was. However, he could hear her yelling out, 'Smokes, mother fucker'.
As he was performing the left hand turn he looked down to try and grab the wallet or purse that belonged to him and the deceased and that was stuck down between the steering wheel and the beginning of the gear stick. He was trying to grab the wallet or purse so that he could throw it out of the driver's window onto the ground for the deceased. At the time that he was looking for the purse or wallet he dipped his head downwards to the left. He did not take his hand off the steering wheel he just looked down and up again.
When he looked back up and focused his eye the deceased was right at the right side of the vehicle's bull bar. She had her right arm across her chest at about a 45 degree angle. He hit the deceased with the right side of the bull bar of the vehicle while he was still in the motion of turning the vehicle to the left. The deceased had 'come around … and got in front of' him as he was turning. He had not put his foot on the accelerator. When he hit the deceased she fell backwards and away from the front of the vehicle.
The distance between the bowser and where he hit the deceased was about 15 - 16 m. He was still in first gear.
After hitting the deceased he let the vehicle roll for another 10 steps or 10 m and then stopped. The reason that he let the vehicle go that far before stopping was he 'knew in [his] heart' that the vehicle was going to get destroyed by fire or smashed up. He did not want the vehicle to be next to the deceased's body when that occurred.
He jumped out of the vehicle. He went to the deceased. He immediately put her in the recovery position as he had been trained to do.
When he got to the deceased her breathing was laboured. Her eyes were closed. He was saying to the deceased, 'Are you alright? Talk to me talk to me'. He did not get any response from the deceased. The deceased briefly opened her eyes. She looked off into the distance and he knew at this point that she was passing.
While he was with the deceased Tristan and others came to him. However, nobody was going to the clinic to get help. He therefore got up and tried to go to the clinic. However, Ryan Richards tripped him up and he and Thelma Richards then started attacking him. Ryan was punching into him and Thelma was throwing rocks at him. Ryan went and got a clear plastic roll from the vehicle and started hitting him with the roll. This continued for about 9 - 10 minutes during which time he kept trying to get up.
Eventually he got up. David Pickert assisted him to walk to the clinic. He walked around to the back of the clinic. He walked to the back of the clinic because no one could hear him at the front.
When he was at the back of the clinic the ambulance was with the deceased. It was when he was at the back of the clinic that Tristan came and hit him in the leg with a star picket which resulted in his leg being broken.
While he was living at the Community he did not argue with the deceased on a daily basis.
The vehicle would have been double the weight of most sedan cars when the pod was filled. It was very heavy. He knew the power and the capacity of the vehicle. He agrees that it was very important to concentrate when driving the vehicle.
He did not have an expectation that the deceased would make his breakfast in the morning. It may have been the case that he was annoyed with the deceased on the morning of the offence because he wanted her to do something instead of messing around on the phone.
The spot where Tristan said he was sitting at the time that he hit the deceased with the vehicle was a special spot to Tristan.
He did not smoke cannabis on the morning of the offence or on the day before. The last time he had smoked cannabis prior to hitting the deceased with the vehicle was about a week previously. The deceased was not smoking cannabis on the morning of the offence.
When the deceased first called out to him for smokes she was standing on the community office veranda. He did not see the deceased walking off the veranda but heard her yell out for smokes a second time. When he heard the deceased yell out for smokes the second time he was in the process of getting into the vehicle and turning the key.
When the deceased is angry she 'does this power walking'. When the deceased power walks she walks at a fast pace.
At the time of the offence he had trouble with his eyes due to an incident that had occurred a couple of years previously. He was required to take eye drops for his eyes. However, he had not taken his eye drops for about six or seven months. His vision was therefore not 100%. It was blurry.
He decided to drive away because he did not want a confrontation. Over the last few years he had learned to get away from arguments with the deceased.
He agrees that it would have been easy for him just to give the deceased the wallet when she walked over towards him. He agrees that throwing the wallet out of the window towards her would be viewed as confrontational. He was just upset.
He agrees that from the time he started moving the vehicle until the time he hit the deceased was probably five to six seconds. When he got into the vehicle the deceased was already coming towards him. She was coming from the community office towards the community shop. He looked down, turned the key in the ignition, put the vehicle in first gear and started turning. As he was in the motion of turning he was looking down for the wallet in order to grab it. His other hand was on the steering wheel. He saw that the wallet was not near the gear stick but had fallen down. When he looked up the deceased was right at the front of the bull bar.
The wallet fell to the ground after one or two seconds from when he started looking at it. After the wallet had fallen down he had to reach right down to the floor of the vehicle's cabin to pick it up. He could still reach the wallet but decided not to do so. This was when he looked up and the deceased was already in front of the vehicle.
It took a couple of seconds for him to register in his brain that the wallet was not where he had expected it to be and had dropped to the floor. When he realised the wallet had dropped to the floor he did not stop the vehicle because he wanted to get away.
When he hit the deceased she was flung back.
After he put the brakes of the vehicle on he heard two bangs. He believes that one bang was a tool or something in the toolbox that hit the back of the vehicle's cab and there was something else that also hit the back of the cab.
He cannot really say what speed he was doing at the time that he hit the deceased. When you take your foot off the clutch of a high powered vehicle the vehicle automatically rolls even if you do not put your foot on the accelerator. He thinks he was going at an 'idling' speed of about 5 - 6 km per hour. He does not agree that he was driving at a 'normal' pace of about 30 - 40 km per hour. It is not possible to travel at 30 km per hour by simply taking your foot off the clutch and when you are idling.
When he hit the deceased she fell backwards and to the side. This occurred while he was still in the process of turning left. The deceased ended up on the right hand side of the vehicle. The vehicle did not go over the deceased.
He was not aware on the morning of the offence that the deceased had called the police about obtaining a restraining order.
It is not necessary to press the accelerator for the vehicle to go forward. When he took his foot off the clutch the car started rolling forward with the help of the mound around the bowser and as it was leaving the mound around the bowser. When you took your foot of the clutch of the vehicle it would start idling (moving) without stalling and without pressing the accelerator. He did not at any stage put his foot on the accelerator.
He agrees that when the vehicle impacted with the deceased she was flung back 2 - 3 m. He agrees he impacted the deceased with force.
He agrees that a speed of 5 km per hour is similar to walking pace. He was going about this speed at the time he hit the deceased and as the vehicle was rolling off the mound.
He was still turning the vehicle to the left when he hit the deceased. It is not the case that he had completed the turn and was driving straight towards the deceased when he hit her. His thoughts at the time were that he was looking at the wallet, that he was grabbing for the wallet and that he was going to throw the wallet out of the vehicle while he was in the process of turning the vehicle.
He does not agree that he hit the deceased at the spot that Tristan said he hit her (near the flowers and pieces of pipe sticking out of the ground that can be seen on exhibits 3.12 and 5.31[33] and where Tristan drew the circle on exhibit 8[34]).. He thinks that he hit the deceased to the right and a little bit in front of the mound that can be seen on the left side of the photograph that is exhibit 3.12.
[33] Annexures B8 and K to these reasons respectively.
[34] Annexure G to these reasons.
After he hit the deceased he did not realise that she was dead or going to die.
He knew that the vehicle was going to be burned or smashed because this was the cultural practice that occurred in the Community when a vehicle was involved in an incident. He did not want the vehicle to be burned or smashed where the deceased's body was. It is for this reason that he stopped the vehicle a bit further forward and went back to render assistance to the deceased.
He did not stop the vehicle where it is shown in exhibit 5.2.[35] He believes he stopped the vehicle a bit back from where it is shown parked in exhibit 5.2. He would not have parked the vehicle underneath a power pole because he knew 'it's Aboriginal custom to burn something like that or it gets messed up'.
[35] Annexure L to these reasons.
The right hand side of the bull bar impacted with the deceased's chest. He cannot be specific whether she was hit on the right side of her body while she was turning.
The deceased had no injuries to her body on the morning of the offence prior to him hitting her with the vehicle. She had no grazing or abrasions on her cheeks or nose. He does not know how the deceased received these injuries.
By the time he was at the bowser and had been at work for a while he had calmed down from his earlier argument with the deceased.
He was not angry about the deceased calling him a 'mother fucker'. He and the deceased had been calling each other 'mother fuckers' for a long time.
It is not the case that he was annoyed at the deceased and therefore deliberately drove at her. He never had a visual on her. He did not drive in her direction. He did not drive in her direction to intimidate or scare her.
About 25 - 30 minutes elapsed from the time that he left home in the morning until the time he saw the deceased sitting under the tree talking to Karen Cooke.
Although he did not know at the time he hit the deceased whether or not that he had killed her, he believed that the vehicle would be burned or smashed up because it is the Aboriginal custom to destroy something that has been involved in an accident.
Analysis and decision
Findings as to disputed alleged facts the subject of pars 20 and 23 of the Statement of Facts
It is convenient to deal first with the disputed alleged facts the subject of pars 20 and 23 of the Statement of Facts.
In doing so it is, I think, important to acknowledge at the outset two basic but nonetheless important principles that are directly relevant to my assessment of the evidence and my determination of the disputed alleged facts. The first principle is that I must not consider and assess the evidence on a piecemeal basis. Rather, I must consider the evidence in its entirety in deciding if the disputed alleged facts have been proved.[36] The second principle is that I can decide to accept all of a witness's evidence, some of a witness's evidence or none of a witness's evidence. I can accept part of a witness's evidence and reject other parts of the witness's evidence.
[36] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [47]; Clay v The State of Western Australia [2023] WASCA 77 [117].
It necessarily follows from the first of the above stated principles that I do not, in order to find the disputed alleged facts the subject of pars 20 and 23 of the Statement of Facts proved, need to be satisfied beyond reasonable doubt of the credibility, that is, the honesty and reliability, of the evidence given by Mr Walker-Kelly and/or Mr Richards. Rather, it is the disputed alleged facts that I must, on all the evidence including the evidence of Mr Walker-Kelly and Mr Richards, find to be proved beyond reasonable doubt.
On behalf of the offender it was submitted, in essence, that the offender gave credible evidence which is broadly consistent with the photographic and medical evidence and which I should accept in preference to the evidence of Mr Walker-Kelly and Mr Richards. It was submitted that the offender's demeanour in giving his evidence supported the credibility of his evidence. It was submitted that I should not find the disputed alleged facts the subject of pars 20 and 23 of the Statement of Facts proved beyond reasonable doubt.
The State submitted, in substance, that I should, having regard to all the evidence, be satisfied beyond reasonable doubt of the disputed alleged facts the subject of pars 20 and 23 of the Statement of Facts. Implicit in this submission is that I should be satisfied beyond reasonable doubt that the evidence given by the offender as to the circumstances in which he hit the deceased with the vehicle was untruthful.
I accept that the way the offender gave his evidence was, generally speaking, believable. For the most part he answered the questions asked of him in a direct, coherent and calm manner. However, and as the offender's counsel acknowledged, there are limitations associated with making findings of fact based on the demeanour of a witness.
Ultimately, when I take account of all of the evidence before me I am, despite the generally believable way in which the offender presented in giving his evidence, satisfied beyond reasonable doubt that his evidence in relation to the disputed alleged facts the subject of pars 20 and 23 of the Statement of Facts was untruthful. I am satisfied beyond reasonable doubt that the disputed alleged facts the subject of pars 20 and 23 of the Statement of Facts have been proved beyond reasonable doubt. My reasons for arriving at this conclusion are as follows.
The prosecutor returned to the topic later in cross-examination:[50]
When you were in the car, and you started to drive off, your head went down to try and look for the wallet? - - - Yes.
And within one to two seconds you had then found the wallet? - - - I seen it.
Seen it, okay. Did the wallet then drop to the ground? - - - Yes.
Right. And it took you about three to four seconds to realise that you couldn't reach for the wallet, and your head was focussed on that? - - - Yes.
And so, in total, up to around six seconds your focus was down on - - - ? - - - Yes.
- - - the ground of the - of the car, correct, trying to look for the wallet? - - - Yes.
…
So you would say for up to six seconds you have not - you are not seeing where [the deceased] is? - - - Yes.
[50] ts 327, 25 May 2023.
Of note is that it was only after the offender was pressed as to why he was not looking where he was going for a period of 5 or 6 seconds that he testified that the wallet had dropped to the floor and that for 3 or 4 seconds he was attempting to grab the wallet. He did not give any such evidence in examination‑in‑chief. Indeed his evidence‑in‑chief was that he only looked down for 'two to three seconds'. In my opinion, it was clear from watching and listening to the offender give this evidence that his evidence about the wallet dropping to the floor was invented by him so as to provide an explanation for why he would not have been looking where he was going for a period of 5 or 6 seconds, this being the period which on his evidence elapsed between him driving from the bowser and striking the deceased.
I turn now to the second aspect of the offender's evidence that in my opinion revealed his account as to the circumstances of his collision with the deceased to be untruthful. The relevant evidence was that given by the offender in relation to precisely where he hit the deceased with the vehicle.
In his evidence‑in‑chief the offender, as I have already pointed out, testified that that the distance between the bowser and where he hit the deceased with the vehicle was about 15 - 16 m.[51] He testified that after he hit the deceased he had 'just come to a stop' and that he then let the vehicle 'roll down a bit more'.[52] He testified that he got out, put the brakes on and then went to the deceased.[53] He testified that he let the vehicle roll for maybe 10 m before stopping and jumping out of the vehicle.[54] Importantly, the offender at no point in his evidence-in-chief sought to expressly contradict the evidence that had been given by Mr Walker-Kelly and Mr Richards by reference to photographs as to where the deceased had been hit by the vehicle.
[51] ts 277, 24 May 2023.
[52] ts 277, 24 May 2023.
[53] ts 277, 24 May 2023.
[54] ts 277, 24 May 2023.
In cross-examination the following exchange occurred:[55]
[55] ts 334, 25 May 2023.
Okay. Looking at [exhibit 3.12], and you - you would agree that where that object is with a little bit of flowers and a bit of a sort of stick or hose there, is where [the deceased's] body was; correct? - - -No.
Well, where was it lying? - - - It would be back one side of that mound is.
…
Ok. So you heard the evidence from Tristan where he circled that photograph and said, “That's where her body was”? - - - No.
You would disagree with that? - - - Yes.
Any reason why you are saying that now? - - - Well, I never seen a hose sticking out the ground where she was laying, watering tube or black watering tube if that's what it is in the photo.
So where do you think that her body, after you had hit her, was?- - - Was back near the mound, just before that mound was - - -
So on the - - -? - - - Mound wasn't even there.
Yes. So - - - ? - - - They had to dig that mound up in order to try and put the fire.
That – that mound there, right, you're saying that [the deceased's] body was before – no, it was towards ---? --- On the side ---
--- the petrol bowser or after ---? –The side – on the side – where that mean mound is, on the side this way.
So where that mound is, on the left-hand side, the sand, is her body on – towards the petrol bowser side or towards the car side? --- This side of the roundabout, this side of the mound.
At this point in his evidence I asked the offender to point out on the photograph that was exhibit 3.12 where he said the deceased's body was after he had hit her. In response to my request the offender pointed to a position that was a little to the right and just in front of the mound that can be seen at the upper left hand edge of the photograph.[56]
[56] ts 335, 25 May 2023. Exhibit 3.12 is Annexure B8 to these reasons.
In my opinion it was clear from watching and listening to the offender give this aspect of his evidence, that he challenged for the first time the evidence of Mr Walker-Kelly as to where the deceased was hit by the vehicle because he realised that Mr Walker-Kelly's evidence in this respect was inconsistent with the evidence he had given to the effect that he had hit the deceased while he was in the process of performing the left U-turn while leaving the bowser. That is, he realised that exhibit 3.12 illustrated that if he had hit the deceased at the location identified by Mr Walker-Kelly (which was substantially the same as the location identified by Mr Richards) he could not have done so in the process of completing the left U-turn; the U-turn would have been well and truly completed.
The offender's tailoring of his evidence in this respect was, in my view, further highlighted by his statement that the mound shown in exhibit 3.12 'wasn't even there' and that the mound had to be dug 'in order to try and put the fire', this being an apparent reference to the burning of the vehicle.[57] At no stage was it ever suggested to any of the prosecution witnesses that the mound shown in exhibit 3.12 had only been dug 'in order to try and put the fire'. Further and in any event, the photograph tendered as exhibit 3.12 was, as explained by Detective Vredenbregt and as is apparent from the photograph itself, taken on 9 November 2020 in the hours following the offence and before the vehicle was set on fire. Accordingly, the mound shown in the photograph, even if it was at some point after the commission of the offence dug into for the purpose of obtaining dirt used to put out the vehicle fire,[58] clearly 'was there' at the time of the offence. It was apparent, in my view, that the offender asserted that the mound 'wasn't even there' because he realised as he was giving his evidence that the existence and location of the mound was inconsistent with his evidence as to where he had hit the deceased.[59] That is, the existence of the mound demonstrated the unlikelihood of the deceased's body landing where the offender said it did if he had hit the deceased while he was still in the process of completing the U-turn because he would need to have carried out and completed the U-turn within the barrier created by the mound.
[57] It is apparent that this was a reference by the offender to the burning of the vehicle because earlier in cross-examination he had stated that the mound was where the tractor had 'grabbed the dirt in order to put the flames out on the vehicle' and that 'the dirt wasn't piled up like that' it was 'just a normal levee that comes around': ts 311, 24 May 2023.
[58] A close inspection of at least two of the photographs tendered at the hearing suggests this may have occurred: exhibits 5.18 and 5.20.
[59] The offender's evidence that the mound 'wasn't even there' was inconsistent with the evidence he had already given quoted in footnote 57 above.
I note to avoid any doubt on the issue that even if the offender had not volunteered the evidence regarding the non-existence of the mound, I would still have concluded that his evidence as to where he had hit the deceased was untruthful for the reason stated in par 302 above.
The third aspect of the offender's evidence that in my opinion revealed his account as to the circumstances of his collision with the deceased to be untruthful related to where he stopped the vehicle after hitting the deceased.
After the offender gave his above referred to evidence in relation to the location of the deceased's body, the prosecutor referred the offender to exhibit 5.2, the photograph showing the position where the vehicle had been stopped following the collision with the deceased.[60] The prosecutor then in substance suggested to the offender, by reference to the photograph, that where he had stopped the vehicle was more than 10 steps away from where he was now saying that he had hit the deceased with the vehicle.[61] It was in this context that the following exchange occurred:[62]
That's where your car landed up, wasn't it, then it got burnt? - - - I wouldn't have parked it underneath the what's the name, power line thing.
Why wouldn't you have parked under the power line? - - - Because I knew that it's Aboriginal custom to burn something like that or it gets messed up.
If it gets burnt up, it gets burnt up. Why is that - - - ? - - - Yes, and - - -
- - - whether it's there or just before or after? - - - what about the power line? I was thinking that was a power line. But now looking at it, it may - it's some sort of pole out of - way of holding the power pole up.
Well, if you were that concerned, Mr McIntyre, you could've driven the car 100 metres away completely away from any pole couldn't you? - - - But when - when you see something like that happen, you have no time to think clear.
My point is, is that – that where that car is in that photograph is where you parked the car and then got out to her? - - - It was back - back - back
And you're - - -? - - - towards this way a bit.
And I'd say you're saying that because you're trying to again, minimise the distance between where you left and where you hit her and where the car was, correct? - - - Well I could show you where she was.
[60] ts 335, 25 May 2023. Exhibit 5.2 is Annexure L to these reasons.
[61] ts 335, 25 May 2023. The prosecutor referred to '10 steps' as opposed to '10 m' because earlier in cross-examination he had agreed that there was about 10 steps between where he had hit the deceased and where the vehicle had been stopped: ts 318, 24 May 2023.
[62] ts 335 - 336, 25 May 2023.
Having watched and listened to this aspect of the offender's evidence, I formed the view that he was doing precisely what the prosecutor suggested to him. The offender did not in his evidence-in-chief seek to challenge the evidence given by Detective Vredenbregt that the photographs of the vehicle taken on 9 November 2020, which showed the vehicle in exactly the same position as in exhibit 5.2, showed where he had stopped the vehicle after hitting the deceased. In my opinion it was clear that the offender gave the evidence to the effect that he had parked the vehicle further back from where it was shown in the photograph, that is closer to the bowser, because he realised that the position in which he had in fact stopped the vehicle was significantly further than 10 steps or 10 m away from the location that he had only a few moments earlier attempted to suggest was where he had hit the deceased. In other words, he was attempting to tailor his evidence to explain away the difficulty caused for him by reason of the distance between where he was attempting to suggest that he had hit the deceased and where he ultimately stopped the vehicle.
The fourth aspect of the offender's evidence that in my opinion revealed his account as to the circumstances of his collision with the deceased to be untruthful related to his knowledge as to the seriousness of the injuries that he had caused to the deceased.
In the offender's evidence‑in‑chief the offender, in response to being asked what he did after stopping the vehicle, answered by volunteering the following:[63]
The reason why I let the vehicle go that far to stop and for me to get out was I knew in my heart that that vehicle was going to get destroyed by fire or smashed up. And that's why I didn't want the vehicle to be next to her body.
[63] ts 277, 24 May 2023.
In cross‑examination, the following exchange occurred:[64]
[64] ts 343 ‑ 344, 25 May 2023.
You said that you knew your car was going to be burned; correct?‑‑‑Yes.
Okay. So you?‑‑‑Not my vehicle.
…
Sure. Okay. Yes. The community's vehicle. So you knew by the time that you hit her, right, that moment of impact, that you had hit her with such force that she was dead or going to die; correct?‑‑‑Yes.
So therefore, you knew that you had hit her, going at quite a degree of pace; correct?‑‑‑No.
Okay. Well, why then did you know that she was going to die, and drive the car further on, knowing it was going to get burned?‑‑‑It just idled off. I just kept idling.
…
… But you also said yesterday that you chose to go that extra distance because you knew the car was going to be burned, didn't you?‑‑‑Yes.
Yes. And again, I'm saying to you?‑‑‑I didn't - I didn't realise at the time of the impact, as she was laying on the ground, that it was that serious. That's why I had to keep going…, not to have something burning where her body is.
Well, that's what you yesterday?‑‑‑So that's all - that's where I could - that's the only way I can answer it.
…
… But what you actually said further is you said, 'I knew when I hit her. I had to go the further distance because I knew the car was going to be burned'. Correct?‑‑‑Burned or smashed. I didn't know it was going to be burned. I didn't know it was going to be smashed. But one of those things happened.
Yes?‑‑‑And it usually doesn't [sic] happen in a community when there's a vehicle involved.
And that's what I'm saying to you is at that point of impact with [the deceased], you knew either she was going to die or likely die; correct?‑‑‑I didn't know at the time that she was going to die. That's why I parked a bit further to get out and go and render assistance.
That's not what you said yesterday?‑‑‑Well, I'm saying it today.
And again, you're trying to change your version of events to try and minimise your now knowledge of the impact that you did on [the deceased]. That's what I'm saying to you. What do you say to that?‑‑‑No.
In my opinion, the offender's backtracking from his initial clear unambiguous answer that he knew that he had hit the deceased with such force that she was dead or going to die reflected an immediate realisation by him that his evidence was inconsistent with his account that he had only hit the deceased at a slow speed of about 5 ‑ 6 km per hour.
The final aspect of the offender's evidence that in my opinion revealed his account as to the circumstances of his collision with the deceased to be untruthful was the explanation that he gave for driving or 'idling' some distance past where he had hit the deceased before stopping the vehicle. In my opinion the offender's evidence, quoted in the preceding paragraphs, to the effect that his reason for not stopping the vehicle as quickly as he could after hitting the deceased was that he was aware of the Aboriginal custom of burning or damaging vehicles involved in accidents was implausible. I do not doubt the truthfulness of the evidence that the offender gave in relation to the existence of the custom. Indeed, his evidence in this respect was borne out by the fact that the vehicle was subsequently set on fire by members of the Community. However, his evidence to the effect that his immediate thought, having just hit the deceased with the vehicle, was to move the vehicle away from the deceased because it would be damaged or burnt, rather than stop the vehicle as quickly as possible and start rendering assistance to the deceased, to my mind lacked plausibility. Even when I make full allowance for cultural considerations and the offender's knowledge of the Aboriginal custom in question, I am simply unable to accept that if the offender had inadvertently hit the deceased with the vehicle in the circumstances that he described in his evidence he would, in the moments immediately following the collision, have been concerned about, or had the presence of mind to think about, the need to move the vehicle away from where the deceased was lying so that she would not be in the way of the vehicle being burnt or damaged. Rather, common sense dictates that the offender's immediate reaction would have been to stop the vehicle, get out of the vehicle and start rendering assistance to the deceased.
In my opinion this aspect of the offender's evidence reflected a dishonest attempt by him to explain why, if he had hit the deceased in the circumstances and at the location he had described, he drove the vehicle some reasonably significant distance away from where the collision occurred. In my opinion the obvious explanation for the offender's conduct in stopping the vehicle where he did is that he did not hit the deceased where he said he did or at the speed that he said he did and that the distance he travelled after hitting the deceased was the distance that it took him to bring the vehicle to a stop from the speed at which he was driving at the time that he hit the deceased.
In summary, and as I have stated, in my opinion the above referred to aspects of the offender's evidence, considered collectively, revealed his evidence as to the precise circumstances in which he hit the deceased with the vehicle to be untruthful.
Summary
For the reasons I have stated in pars 259 - 264 above, considered in combination with each other and as elaborated upon in pars 266 - 313 above, I am satisfied beyond reasonable doubt of the disputed alleged facts the subject of pars 20 and 23 of the Statement of Facts. That is, I am satisfied beyond reasonable doubt of the following:
1.The deceased walked from the community office or from near the community office onto the road (First Street) or the edge of the road and in the direction of the offender who was parked in the vehicle at the bowser;
2.While walking in the direction of the offender the deceased was yelling and swearing at the offender asking for money and/or cigarettes;
3.The offender drove away from the bowser by performing a left U-turn and then turned right so that he was driving directly at the deceased for a short distance as she was walking towards him;
4.The offender did not look down into his vehicle in an attempt to pick up any wallet between driving away from the bowser and hitting the deceased. He at all times looked at and in the direction of the deceased;
5.The offender, who was angry with the deceased, deliberately drove towards the deceased with the intention to intimidate and/or scare her albeit with the expectation that she would jump out of the way;
6.The offender drove away from the bowser and towards the deceased at a normal speed (faster than 5 - 6 km/h but not at an excessively fast speed or in excess of any speed limit) and did not swerve so as to avoid hitting the deceased; and
7.As the offender drove the vehicle towards the deceased she continued to walk towards the vehicle and did not jump or otherwise move out of the way of the vehicle quickly enough to avoid being hit by the vehicle.
Finding as to disputed alleged fact the subject of par 10 of the Statement of Facts
The only evidence of the prior incident described in par 10 of the Statement of Facts is that given by Mr Walker‑Kelly.
The cross‑examination of Mr Walker‑Kelly revealed that he did not make any reference to the prior incident when he gave his first statement on 10 November 2020 and that the first time he described the prior incident was when he provided his second statement on 28 April 2022.
In response to questioning during cross-examination about why he had not made any reference to the first incident in his first statement, Mr Walker-Kelly denied that he had 'added in' the incident to make the situation worse for the offender.[65] Mr Walker‑Kelly testified, in substance, that he did not make reference to the prior incident in his first statement because having witnessed the offence he was upset and not thinking right.[66]
[65] ts 114, 23 May 2023.
[66] ts 115, 23 May 2023.
In re-examination Mr Walker-Kelly testified that the police did not ask about the prior incident when they obtained his first statement and that he was only asked about what had occurred on the day of the offence.[67]
[67] ts 155, 23 May 2023.
On behalf of the offender it was submitted that given that on Mr Walker-Kelly's evidence he had only one or two weeks prior to 9 November 2020 seen the offender engage in conduct that was almost a carbon copy of what he asserts he saw on 9 November 2020, it is reasonable to expect that at the time of being questioned about what occurred on 9 November 2020 he would have said to the police that the offender had done something similar only a short time before. It was submitted that Mr Walker-Kelly's failure to refer to the alleged prior incident in his initial statement undermines the credibility of his evidence of the prior incident.
The State submitted that Mr Walker-Kelly's explanations for not including in his initial statement any reference to the prior incident are plausible and that therefore the absence of any reference in the statement to the prior incident does not reflect adversely on the credibility of his evidence as to the prior incident.
I found Mr Walker‑Kelly's evidence in relation to the prior incident credible. Mr Walker-Kelly was able to give a relatively detailed account of what had occurred. I did not detect any attempt by him, in giving the evidence, to portray the offender in an unduly unfavourable light. He did not, for example, attempt to say that the offender had hit the deceased or that the deceased had suffered any injury even of a minor nature. To the contrary he made clear that the deceased had in effect brushed the incident off. Further, in my opinion, the explanations that Mr Walker-Kelly gave for not referring to the prior incident in his first statement were plausible.
The offender denied that the prior incident occurred. However, in my opinion the credibility of his evidence to this effect was adversely affected by his initial attempts to suggest that he could not have been in possession of the vehicle one to two weeks prior to 9 November 2020 because at that point in time his boss, who was the person who had primary use of the vehicle, was at the Community and had not gone on his annual leave.[68] It was only when he was pressed in cross-examination in relation to this issue and was in effect asked to provide details of the basis for his assertion that his boss was not present one to two weeks prior to 9 November 2020 that he eventually conceded that he 'thinks' that he did have possession of the vehicle for at least two weeks before 9 November 2020.[69]
[68] ts 268 and 285 - 286, 24 May 2023.
[69] ts 287 - 289, 24 May 2023.
On the basis of Mr Walker-Kelly's evidence I am, contrary to the offender's evidence, satisfied beyond reasonable doubt of the disputed alleged fact the subject of par 10 of the Statement of Facts. I reject the offender's evidence that the prior incident did not occur.
As is apparent from my above expressed reasons, I have not relied on my finding that the disputed alleged fact the subject of par 10 of the Statement of Facts has been proved in finding that the disputed alleged facts the subject of pars 20 and 23 of the Statement of Facts have been proved. Nonetheless, I note for the sake of completeness that in my opinion the fact that the offender did engage in the prior conduct provides further support for my conclusion that the disputed alleged facts the subject of pars 20 and 23 are established in the sense that the prior conduct demonstrates that the offender, at the time of committing the offence, had a propensity to deliberately drive the vehicle at the deceased.
Finding as to disputed alleged fact the subject of par 21 of the Statement of Facts
Mr Walker-Kelly's evidence was that at the time that the deceased fell backwards onto the ground she was out of his sight because his view of her was blocked by the corner of the community office. He therefore did not see if the offender drove over the deceased.
Only Mr Richards gave evidence that the offender, after hitting the deceased, 'went over' the deceased with the vehicle.
I have accepted Mr Richards' evidence as to the speed and direction of the offender's driving immediately preceding the vehicle's impact with the deceased. However, in doing so I have taken into account that Mr Richards' evidence was broadly consistent with the evidence of Mr Walker-Kelly. Further, and as I have recognised, given the already referred to inaccuracies in Mr Richards' evidence, his evidence must be approached with caution.
I do not doubt that Mr Richards honestly believes that he saw the vehicle drive over the deceased. However, I have some doubt about whether Mr Richards would, in the few seconds immediately following the collision and bearing in mind the speed with which the events must have occurred, have been able to accurately perceive and comprehend if the vehicle had actually driven over the deceased as opposed to very close to her.
I am conscious of the established fact that the deceased was flung backwards when she was hit by the vehicle. The fact that she was flung backwards to my mind reduces the chances that the offender did drive over her.
I do not have before me any evidence as to precisely how the deceased was treated and dealt with while she was lying on the ground prior to being taken into the clinic. This being the case it is difficult, in my view, to exclude the possibility that in the process of turning and or moving the deceased during this time her facial area could have come into contact with the rough ground surface.
Finally, Dr Cooke was, perhaps unsurprisingly, unwilling to go further than saying that the facial abrasions could have been caused by the underside of the vehicle. He could not conclusively say that the deceased had been dragged under the vehicle.
Taking into account the above matters I am left with some doubt as to whether the offender did drive the vehicle over the deceased after he had collided with the deceased. It follows that I am not satisfied beyond reasonable doubt of the disputed alleged fact the subject of par 21 of the Statement of Facts.
I note that even if I had found the disputed alleged fact the subject of par 21 of the Statement of Facts proved, I would have accepted the submission made on behalf of the offender that the fact does not increase his culpability. The offender's culpability lies in the fact that he hit the deceased with the vehicle in the circumstances that I have found that he did. Whether or not, as he was in the process of coming to a stop and as an inevitable consequence of the deceased falling to the ground in front of the vehicle, the offender drove over the deceased is not something that increases his culpability.
Finding as to disputed alleged fact the subject of par 24 of the Statement of Facts
Mr Richards' evidence was that his sister Thelma put the deceased on her side. However, this aspect of Mr Richards' evidence was against the weight of other evidence adduced.
Mr Walker-Kelly's evidence was that when the offender was holding the deceased the offender did not put her in the recovery position but did put her on her side although 'not the right side'. Ms Tucker's evidence is that by the time she turned around and saw the deceased on the ground the offender had pulled her onto her right side. Mr West's evidence is that when he saw the deceased lying on the ground the offender was turning the deceased on her side. Ms Appleton's evidence is that at one point she saw that someone had put the deceased in the recovery position on her side. Finally, the offender's evidence was, of course, that he placed the deceased in the recovery position as he had been trained to do. In giving this evidence the offender demonstrated the position that he placed the deceased in.
As I have previously pointed out, the onus is on the offender to prove on the balance of probabilities that he placed the deceased in the recovery position.
It is not in dispute that the offender, having struck the deceased with the vehicle, did get out of the vehicle and go to her to check on her welfare. Having regard to this undisputed fact and the evidence referred to in par 334 above, I am satisfied on the balance of probabilities that the offender, rather than picking the deceased up, placed her in the recovery position. I am satisfied that to the extent that the offender took hold of the deceased he did so as part of placing her in the recovery position.
Finding as to disputed alleged fact the subject of par 25 of the Statement of Facts
In my view it is not necessary for me to make a finding as to precisely when and where Mr Walker‑Kelly struck the deceased with the star picket (that is, whether he struck the offender very shortly after the offence and while the offender was still near the deceased or a short time after the offence and while the offender was at the rear of the clinic). This issue is not one that impacts in any way on my assessment of the offender's culpability.
Findings as to alleged mitigating facts
As is apparent from my above expressed findings, the offender has failed to satisfy me on the balance of probabilities that at the time he hit the deceased he was driving at a slow as opposed to a normal speed or that he was at any time looking away and down for a short time while in the process of attempting to pick up a wallet from the floor of the vehicle.
As to the alleged mitigating factor that the deceased placed herself in front of the vehicle, my finding, as I have already stated in dealing with the disputed alleged facts the subject of pars 20 and 23 of the Statement of Facts, is that the deceased was walking towards the offender and the vehicle asking for cigarettes and/or money at the time that the offender started driving towards her and that she continued to walk towards him as he approached her and in the moments prior to him hitting her. However, I am not satisfied on the balance of probabilities that the deceased deliberately jumped in front of the vehicle or otherwise deliberately moved in front of the vehicle in the moments before the vehicle hit her.
Conclusion
My decision on the trial of issues can be summarised as follows:
1.The disputed alleged facts the subject of pars 10, 20 and 23 of the Statement of Facts are proved;
2.The disputed alleged fact the subject of par 21 of the Statement of Facts is not proved;
3.The disputed alleged fact the subject of par 24 of the Statement of Facts is not proved to the extent that it alleges that the offender did anything more than take hold of the deceased to place her in the recovery position; and
4.With respect to par 25 of the Statement of Facts, although it is established that at some point in time soon after the offence Mr Walker-Kelly struck the offender with a bar and in doing so broke the offender's leg, it is not necessary for me to make a finding as to the precise timing and location of this assault. I therefore decline do so.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JP
Research Associate to the Honourable Justice Derrick
8 JUNE 2023
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