DISTRICT COURT OF QUEENSLAND
CITATION: R v Nugent [2020] QDC 245 PARTIES: R
v
NUGENT, Thomas Albert
FILE NO/S: 612/18 DIVISION: Criminal PROCEEDING: Trial ORIGINATING COURT: District Court of Queensland DELIVERED ON: 14 August 2020 DELIVERED AT: Townsville HEARING DATE: 16 July 2020 JUDGE: Coker DCJ ORDERS: 1. Verdict for Count 1: Not Guilty CATCHWORDS: CRIMINAL LAW – JUDGE ALONE TRIAL – where the defendant is charged with one count of dangerous operation of a vehicle causing death – where the defendant elected trial by judge alone
LEGISLATION: Criminal Code 1899 (Qld) (s 328, 615, 615B, 615C) CASES: Fleming v The Queen (1998) 197 CLR 250 (at 263; [28]) COUNSEL: A.Walklate for the Prosecution
J.Greggery for the DefendantSOLICITORS: Office of Director of Public Prosecutions for the Prosecution
Cohen Legal for the Defendant
The defendant is charged with one count of dangerous operation of a motor vehicle pursuant to s 328A of the Criminal Code 1899 (Qld) (“the Code”). The count alleges:
That on the tenth day of February, 2016 at Townsville in the State of Queensland, Thomas Albert Nugent dangerously operated a vehicle in Townsville, and caused the death of Jeffrey Alan Ashby.
On 8 June 2020 an order was made pursuant to s 615(1) of the Code that the defendant be tried by a judge sitting without a jury.
Background
At that time orders were also made in respect of the filing of an application and outline by the defendant and the application to exclude certain evidence was listed for 17 June 2020.
On that day the application was heard and orders were made excluding some of the evidence sought to be relied upon by the Crown, but dismissing the application in respect of other parts of the evidence sought to be excluded.
The trial then commenced on 16 July 2020 and the defendant entered a plea of not guilty. The evidence and closing submissions of counsel with respect to the relevant law and factual issues were presented on that day.
At the conclusion of submissions I reserved my decision.
Trial by Judge Alone - Directions
S 615B of the Code prescribes the law and procedure which I must apply as a judge sitting alone without a jury. I must apply, so far as is practicable, the same law and procedure as would be applied in a trial before a jury. Further, where an Act or the common law requires information or a warning or instruction to be given to the jury in particular circumstances or prohibits such a warning from being given, I must take that requirement or prohibition into account if the circumstances arise in the course of the trial. In accordance with s 615C of the Code, I may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury and any finding or verdict of mine has, for all purposes, the same effect as a finding or verdict of a jury.
The judgment of the court in such a case must include the principles of law that I as the judge apply and the findings of fact on which I rely. It is necessary in a judge alone trial to expose the reasoning process linking the principles of law with the findings of fact and justify the process and, ultimately, the verdict that is reached.[1]
[1] Fleming v The Queen (1998) 197 CLR 250 (at 263; [28])
There are certain general directions that I must take into account. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the Prosecution and the accused are entitled to my verdict free of partiality or prejudice. My verdict must be determined according to the evidence.
The Prosecution bears the onus of proving the guilt of the accused at all times. The standard of proof is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. The accused is presumed by law to be innocent unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt. The accused then loses the presumption of innocence and I must find him guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then I must find the defendant not guilty. If I am satisfied that there may be an explanation consistent with the innocence of the accused, or I am unsure of where the truth lies, then I must find that the charge has not been proved to the standard of proof required by law and I must find the accused not guilty.
Matters which will concern me are the credibility of the witnesses, and the reliability of their evidence. It is for me to decide whether I accept the whole of what a witness says, or only part of it, or none of it. I may accept or reject such parts of the evidence as I think fit. It is for me to judge whether a witness is telling the truth and correctly recalls the facts about which they have testified. I am also required to determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experiences and wisdom in assessing the evidence.
The defendant did not give or call evidence. That is his right and he is not bound to give or to call evidence. He is entitled to insist that the Prosecution prove the case against him, if it can. The Prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt, and the fact that the defendant did not give evidence is not evidence against him and no adverse inference may be drawn from the defendant’s failure to give evidence. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the Prosecution. It proves nothing at all. I cannot consider it at all when deciding whether the Prosecution has proved its case beyond a reasonable doubt, and it most certainly does not make the task confronting the Prosecution any easier. It cannot change the fact that the Prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt.
The Charge
As noted already, the defendant is charged with a single count of dangerously operating a vehicle in Townsville and causing the death of Jeffrey Alan Ashby contrary to s 328 A(4) of the Code. S 328A(4) relevantly provides:
328A Dangerous operation of a vehicle
(4) A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place and causes the death of or grievous bodily harm to another person commits a crime and is liable on conviction on indictment—
(a) to imprisonment for 10 years, if neither paragraph (b) nor (c) applies; or
(b) to imprisonment for 14 years if, at the time of committing the offence, the offender is—
(i) adversely affected by an intoxicating substance; or
(ii) excessively speeding; or
(iii) taking part in an unlawful race or unlawful speed trial; or
(c) To imprisonment for 14 years, if the offender knows, or ought reasonably know, the other person has been killed or injured, and the offender leaves the scene of the incident, other than to obtain medical or other help for the other person, before a police officer arrives.
In order to return a verdict of guilty, the Prosecution must prove beyond reasonable doubt each of the following elements:
Dangerous Operation of a Motor Vehicle causing Death or Grievous Bodily Harm: s 328A(4)
The Prosecution must prove that the defendant:
1) Operated, or in any way interfered with the operation of, a motor vehicle;
2) In a place, namely Townsville;
3) Dangerously; and
4) That the defendant thereby caused the death of the deceased.
It is not necessary for the Prosecution to prove that the dangerous operation of the motor vehicle was the sole cause of the deceased’s death. It is sufficient for it to show that the dangerous driving was a substantial or significant cause of that result.
The operation of a vehicle includes the speed at which the vehicle is driven and all matters connected with the management and control of the vehicle by the driver, such as keeping a lookout, turning, slowing down and stopping.
The expression "operates a vehicle dangerously" in general does not require any given state of mind on the part of the driver as an essential element of the offence. A motorist may believe he or she is driving carefully yet be guilty of operating a vehicle dangerously. "Dangerously" is to be given its ordinary meaning of something that presents a real risk of injury or damage. The ordinary meaning of ‘dangerous’ is ‘fraught with or causing danger; involving risk; perilous; hazardous; unsafe’. It describes, when applied to driving, a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver’s own passengers.
The Prosecution must prove that there was a situation which, viewed objectively, was dangerous. For the driving to be dangerous, there must be some feature which is identified not as a mere want of care, but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may, on occasions, drive with less than due care and attention.
Momentary lapses of attention on the part of the driver, if they result in danger to the public, are not outside the ambit of the offence of dangerous operation of a motor vehicle merely because they are brief or momentary. If a driver adopts a manner of driving which is dangerous in all the circumstances of the case to other road users it does not matter whether they are deliberately reckless, careless, momentarily inattentive or even doing their incompetent best. However, the Prosecution must prove that there was some serious breach of the proper conduct of the vehicle upon the roadway, so serious as to be in reality, and not speculatively, potentially dangerous to others.
The Prosecution Case
The Prosecution case is that the defendant’s operation of his motor vehicle, a Kenworth Prime Mover bearing Queensland registration 257 KPT and towing two trailers, was dangerous and that the dangerous operation of the motor vehicle caused the death of Jeffrey Alan Ashby. It is not in dispute that the defendant, driving his Prime Mover, and the deceased, riding his bicycle, were proceeding along Echlin Street, West End, towards the intersection of Echlin Street and Francis Street on the morning of 10 February 2016. What is in dispute is whether the defendant’s Prime Mover or trailer struck the deceased’s bicycle from behind, to the right hand side rear wheel, or at all causing the deceased to fall or be thrown from the bicycle and to sustain fatal injuries.
There are no credible witnesses to the incident and no CCTV recording of the specific incident. Though, there is CCTV footage from a hostel in Echlin Street which shows the deceased and the defendant both proceeding up Echlin Street from Ingham Road, though the bicycle and Prime Mover are not seen in the same field of view, but are observed a few seconds apart.
The Prosecution case is therefore based on circumstantial evidence, in other words circumstances which the Prosecution say can be relied upon, not as proving a fact directly but instead as pointing to its existence.
The Evidence
The Prosecution case consisted of joint admissions, the record of interview between the defendant and Senior Constable Lisa Missen conducted on 10 February 2016, CCTV footage looking out from the Kevin Saylor Centre to Echlin Street and the evidence of two Prosecution witnesses:
a) Senior Sergeant Robert John Nalder; and
b) Sergeant David Stocker.
Both of those police officers were called as experts.
The following facts were admitted pursuant to s644(2) of the Criminal Code:
1)The deceased is Jeffrey Alan Ashby who died on 10 February 2016 shortly after he sustained the injuries described in admission 2 below.
2)A post-mortem examination of the deceased was conducted by David Williams, a Consultant Forensic Pathologist. During that examination and on subsequent inquiry he noted the following:
a) On external examination:
i)Extensive abrasions extending for 1m along the left side. At the widest point these abrasions were 17cm in width and they extended into the left armpit.
ii)Extensive bruising around the scapula and abrasion between the scapula and left shoulder.
iii)Abrasions covered an area 18cm by 24cm to the right side of the abdomen just above the hip.
iv)An oil chain mark on the right leg in a pattern resembling a bicycle chain on the skin near the right tibia.
b) On internal examination:
i)Multiple rib fractures to the front and rear left side of the chest with occasional fractures to the front of the right side of the chest, one of which formed a sharp object protruding into the chest wall.
ii)The left lung is severely collapsed and there is trauma to the rear of the left lung caused by displaced fractured ribs. Frequent areas of bruising were noted in the lungs.
iii)A severely traumatised (ruptured) spleen.
iv)No skull fractures.
c) Opinion on cause of internal and external injuries:
i)The abrasions to the left side of the body is consistent with the left arm being outstretched or away from the body so that the area, all the way up to the armpit, is exposed to the abrasive surface.
ii)The fractured ribs are consistent with a large mass hitting the cyclist (blunt force trauma).
iii)The blunt force trauma to the ribs is probably consistent with being applied at a time when the left arm was away from the left side of the rib cage so that the ribs were unprotected.
iv)The blunt force trauma is consistent with the cyclist falling onto the raised edge of the traffic island which creates the curb of the inside corner with the left arm away from the body such that the raised edge contacts with the left side of the rib cage.
v)It is probable or likely that the damage to the spleen was caused at the same time as the blunt force trauma which caused the rib fractures.
vi)In interactions between cyclists and vehicles there is commonly fatal cardiac trauma which the deceased did not experience.
vii)The heart was still beating as the spleen was traumatised, that is, it ruptured at the time of impact which caused the rib fractures.
viii)All injuries would have occurred within a short space of time (minutes) in the same impact.
d) Opinion on the cause of death:
i)The ruptured spleen bled very quickly into the abdominal cavity causing death.
3)On 10 February 2016 the defendant was driving a truck (registration 257 KPT) in a B-Double formation on Echlin Street towards the West End quarry. The truck belonged to Mendi Constructions, with whom the defendant was employed. A permit was issued for Mendi constructions for their trucks to utilise Echlin Street turning into Williams Street in order to approach a quarry situated there. An inspection of the trick driven by the defendant found no mechanical defects that would have affected the defendant’s operation of the truck or its behaviour.
Before turning to the evidence of the two Prosecution witnesses, I note the contents of the Record of Interview conducted between the defendant and Senior Constable Lisa Missen on 10 February 2016; and will also comment briefly upon the CCTV footage obtained from the Kevin Saylor Centre. The defendant says pertinently in the Record of Interview the following:
NUGENT: “… headed up the street and where you have your car parked, there was a blue car beside ya.”
SCON MISSEN: “Mmhmm.”
NUGENT: “I saw the pushbike ride there and that, it wasn’t like he was racin’ or anything. He just, and I drove, went out wide past him and as I, I put me indicator on to go, turn tight to go up the hill and I went out wide, wide all where the island is there, put me tyres against that and then as I’ve swung, I looked in me driver’s side mirror to make sure I didn’t wipe out that little signpost that was there, and as I got around the corner, I looked back to make sure nothing was, you know, comin’ up behind me or anything, and looked back, couldn’t see nothing, looked to the hill, me flashin’ lights on, pulled up.”
NUGENT: “Anyway, you know, I saw him, I saw the bloke on the bike and if he was any closer to the turn off I would have pulled right up to let him go round but where he was.
SCON MISSEN: “Do you know what speed you were doing, going up Echlin Street?”
NUGENT: “About thirty. ‘Cause I just --”
SCON MISSEN: “Do you remember how fast the bike rider was riding?”
NUGENT: “Oh, he was just, no he wasn’t, like I said, he wasn’t racin’ he was just, you know, he was comin’ up to that blue car and I went past him, out wide. When I had to turn to me left --”
SCON MISSEN: “Yep.”
NUGENT: “And I could see, I looked in me left mirror and I couldn’t, I didn’t see him.”
SCON MISSEN: “Yeah. Okay.”
NUGENT: “And then I swung to me right and looked back to me right mirror to make sure the trailer, the back trailer got around that little island that was there --”
SCON MISSEN: “Yep.”
NUGENT: “That had the sign up.”
SCON MISSEN: “Yep. Cause when you manoeuvre through that intersection you sort of have to sort of wobble a bit and then go straight. [INDISTINCT] you know, rather than --”
NUGENT: “No, we, we come around it, you come around it so your driver’s side’s close to the kerb.”
SCON MISSEN: “Okay.”
NUGENT: “To allow the, the back trailer to get, so you don’t wipe out --”
SCON MISSEN: “Right.”
NUGENT: “The other island.”
SCON MISSEN: “Okay.”
NUGENT: “So you [INDISTINCT] kick the little things that are on it.”
SCON MISSEN: “Yep. Okay. Alright. No worries. Um, I, I think that’s all we need from you today. Um, yeah.”
NUGENT: “But like I said if he, if he was, if he was closer to the corner, I would have slowed down and let him around, but, he, he was just, he wasn’t, he wasn’t pedalling at a hundred mile an hour. He wasn’t speeding.”
SCON MISSEN: “Do you know where he was when you entered the corner? When the front of your truck --”
NUGENT: “He was near that, where you parked your car --”
SCON MISSEN: “Okay. Alright. So further down the street in Echlin Street.”
NUGENT: “That, that blue, where that, no, where that blue, you know that, there’s a blue car beside where you parked when you pulled up.”
SCON MISSEN: “Okay. Alright.”
NUGENT: “He was just there, near those two cars.”
SCON MISSEN: “Alright. Okay.”
NUGENT: “So I had ample time to get around him with the prime mover.”
SCON MISSEN: “Yep.”
NUGENT: “And I went out wide enough so that I didn’t, me back trailer.” Where I’ve tried to miss the kerb and he’s --”
SCON MISSEN: “Yeah. Okay. Alright then.”
NUGENT: “I didn’t even hear it. I didn’t feel nothin’. I didn’t see nothing.”
In particular, he notes that he went wide on Echlin Street, putting his tyres against the first traffic island on Echlin Street. Further, he says he was aware of the blue car parked on Echlin Street, which vehicle is shown in ‘Exhibit 3(a)’ as being in the same position as at the time of the incident, and that he passed the deceased at that point on the road.
Further, he said that his line on the road continued to track so that his truck continued past the second island in the middle of the road, with the driver’s side close to the kerb. He also states that the deceased was near where the police had parked their vehicle and that was where the blue car was parked, as he passed.
Finally, he indicates that he went around the deceased with ample time and that the cyclist was near to the two cars shown in ‘Exhibit 3(a)’, the blue car and white vehicle parked behind it. The CCTV recording from the Kevin Saylor Centre is also significant because it shows a point on Echlin Street behind the blue car but also it would seem behind the white car. It appears that the white car was present as well as the defendant refers to the two cars.
Using the scale plan of the road in ‘Exhibit 1’, the rear of the blue car shown in the plan is almost exactly forty metres from the second manhole shown in the plan, which is a point prior to the position on the road of bicycle parts found by Senior Sergeant Nalder and, of course, the body of the deceased on the roadway.
The CCTV recording shows the relative speeds of the bicycle and the truck and, to the naked eye, the truck is proceeding more quickly than the bicycle. The defendant estimates that he was travelling at thirty kilometres per hour but no assessments have been made as to the respective speeds of the bicycle and the truck and there is therefore no calculation as to a point where the truck may have commenced to pass the bicycle or when the end of the second trailer would pass.
Senior Sergeant Nalder acknowledged that he had considered that in his investigation but was unable to make any calculations with any certainty. What is clear from the recording however is that the bicycle and the truck pass within seconds of each other through the field of view of the CCTV, that the truck is travelling more quickly than the bicycle and that those images are at a point on Echlin Street before the blue and white cars are in play.
The evidence of the two police witnesses called can be summarised. Senior Sergeant Nalder was, at the time of the incident, the officer in charge of the Townsville Forensic Crash Unit. Senior Sergeant Nalder described his qualifications and training and no specific objection was made as to his expertise.
Senior Sergeant Nalder was called to the incident arriving at approximately 8:07am. He was briefed upon arrival and directed another officer to take photos of the scene. He also subsequently purposed a scale plan of the surrounding area which is ‘Exhibit 1’. In that plan he detailed certain matters observed in the surrounding area, including tyre scuff marks observed on the first traffic island as well as on the middle kerbing. Tendered through him were a considerable number of photographs taken, at his direction, of the scene. Those photographs included photos of the roadway and manhole covers, the deceased’s bicycle, where it was found, and the defendant’s truck. He described what was seen in those photos as well as weather conditions and the like.
Senior Sergeant Nalder also had a scale plan prepared from measurements of the truck, noting that it and the two trailers were 21.85 metres in total length and 2.4 metres wide. That scale plan was admitted as ‘Exhibit 7’.
Senior Sergeant Nalder also sought and obtained the approval of Mr Jeffrey Doyle, managing director of Mendi Constructions and the owner of the truck, to use the truck for various reconstructions of its path through the intersection. Those reconstructions, two on the day of the incident 10th February 2016 and two on 23rd February 2016, were admitted and marked as ‘Exhibit 10’.
Following the tender through Senior Sergeant Nalder of the various exhibits, he gave evidence about various tyre scuff marks on two of the traffic islands, noting that the first, on the traffic island in the middle of Echlin Street, accorded with the statements by the defendant as to the route he took to pass around the deceased. He also spoke of tyre scuff marks on the larger traffic island shown in ‘Exhibit 2(b) and 3(c), though he did quite properly acknowledge that all such marks could not be identified as coming from the defendants truck or even placed within a time frame of less than a few days as to when they occurred.
Finally, in Evidence in Chief, Senior Sergeant Nalder identified a thin tyre mark on the road approaching a deteriorated manhole cover near to where two bicycle parts were located. Senior Sergeant Nalder acknowledged that it was a friction mark on the road consistent with a rear tyre of a bicycle and that there was a consistent scuff mark on the rear bicycle tyre.
In cross examination Senior Sergeant Nalder was asked to consider a number of matters and he accepted that the tyre scuff mark on the first traffic island was consistent with contact by the driver side steer wheel as was described by the defendant. Further, he agreed that the duel tyre marks on the larger traffic island could not be dated with precision other than that they could have been laid down within a couple of days, and that it could not be asserted specifically that the scuff marks were laid down by the defendant’s vehicle.
He was also asked about the thinner bicycle tyre skid mark and acknowledged that one basis for it being found on the roadway would be consistent with the application of brakes to a bicycle tyre. Further, Senior Sergeant Nalder was asked about any calculations that might have been made as to where a pass/overtake may have occurred, but he acknowledged that he could not do so with any precision. Similarly, he was asked about scuff marks on the defendant’s trailer wheels as depicted in the photographs exhibited and he agreed that he could not specify what may have been touched to cause side scuff marks on the tyres where those marks were made.
Finally, he was asked about the video reconstructions made and their consistency or inconsistency with the evidence of the defendant as to the manner of his turn. He acknowledged that a ‘button turn’, as described by the defendant as being the manner that he turned into the road to the quarry, provides the maximum space between the left hand side of the truck and the left hand side of the lane and the reconstruction following the path described by the defendant showed significant space between the truck/trailers and the left hand side of the lane.
Sergeant David Stocker also gave evidence in respect of crash analysis and outlined his qualifications and experience. He also spoke about his investigations into vehicle/bicycle crashes and the knowledge gained from that. Sergeant Stocker did acknowledge that the bicycles used for those tests were not carbon fibre but steel on alloy framed bikes and that he did not have specific experience with testing on carbon fibre bicycles.
Notwithstanding that exception, he provided evidence as to the extent of damage to the deceased’s bicycle and provided his opinion as to the cause. Thereafter, there was tended, through Sergeant Stocker, numerous photographs of the deceased’s bicycle and specifically to the particular areas of damage. Sergeant Stocker identified those particular areas of damage and, using the various photographs as reference points, explained his view as to the nature of the damage and his opinions as to how it probably came about. At page 1-62 of the transcript, following the tender of the photographs, the following exchange occurred:
“Now, just before the lunch break, having observed all of that damage, what are you able – what was your conclusion from the damage that we have just seen?‑‑‑So my conclusion was that it was consistent with an impact to the rear or rear right of the bicycle at a relatively low speed.”
“Can you tell us what the damage was inconsistent with?‑‑‑I didn’t really find any damage consistent with the bike or substantial part of the bike being run over by the truck.”
Sergeant Stocker then continued in Evidence in Chief to explain why he considered the damage to be consistent with an impact to the rear or rear right of the bicycle rather than the damage consistent with the rear of the bicycle frame being run over. He did however quite properly agree that the damage caused to streel and aluminium alloy frames would be different to that found in carbon fibre frames, though he opined that the damage in either case was consistent with a rear or rear right side collision.
In cross examination Sergeant Stocker was questioned about a number of matters as to his opinion as well as to his expertise regarding carbon fibre bicycles. These matters included a change in his evidence relating to an apparent change in the deformity of the rear wheel as seen on two different occasions. Whilst not of great significance overall, it did raise some concerns as to the basis of opinions stated by Sergeant Stocker.
Thereafter, Sergeant Stocker was questioned about differences between the types of steel and carbon fibre and the fact that he had no apparent expertise in respect of carbon fibre bicycle frames other than to suggest that his testing of steel framed bicycles in collisions was, “to some degree transferable to carbon fibre.” He also acknowledged that his conclusions in respect of the cause of damage to carbon fibre bicycle frames was therefore invalidated.
Sergeant Stocker was also asked about cognitive bias and he indicated that while he had some knowledge of the course of investigations and that the defendant had been charged, this did not influence his conclusions. Ultimately, he indicated that his opinions were based solely on assessments as to the damage to the bicycle without the consideration of contact with a truck but rather ‘just an impact’. In further enquiry he was asked:
And when you say the different scenarios --- ? --- Yes.
--- did you consider a scenario which involved the cyclist applying his brakes and skidding as he approached a pothole? --- I – as I said, I was only asked to consider – look at the damage – isolate myself to the damage to the bike.
Well, you just sad that you considered all the scenarios. So I’m asking you about a scenario. Did you consider that?---Not braking. I did consider – so I considered the scenario of an impact to the rear of the bike in an upright position. I considered the scenario of the bike being run over, which is in my report, and I’ve also considered the scenario of maybe the rear wheel of the bike being run over.
My question was really specific. Did you consider the scenario of a cyclist braking as they approach a pothole?--- No.
Right. Did you consider the scenario of a cyclist braking as they approach a pothole, losing their balance and control of the bike?---No. As I – no. I was only ---
The wheel ---?--- concentrating on the evidence. Sorry, the damage to the bike.
The – it seems, in considering scenarios, you only considered scenarios which involve collisions?--- The bike upright or the bike on the ground, yes.
Colliding with ---?--- Being hit.
Being hit?--- Being hit upright ---
Yes?--- being on the road run over or partially run over.
Right. Collisions with vehicles is what you considered?--- Yes.
Right. And you limited your considerations to those scenarios?--- Yes, those three scenarios.
Other possible scenarios were put to Sergeant Stocker as to possible causes of damage to the bicycle and he agreed that he had not considered those, as well as making a number of concessions as to how damage, consistent with some, though not perhaps all, found on the bicycle occurring as a result of the rear of the bicycle being run over by the truck. This included that the damage to the bicycle seat and damage to the cogs and teeth of the cogs.
I was generally assisted by the evidence of both Senior Sergeant Nalder and of Sergeant Stocker. Senior Sergeant Nalder in particular was a witness willing to consider alternatives and variables as put to him and conceded on a number of matters that such alternatives, particularly as might accord with the unchallenged evidence of the defendant, might mean that there were difference conclusions open.
Sergeant Stocker was less willing to concede variables that might arise but ultimately, was quite proper, acknowledged that his examination of the bicycle and the damage to it did not exclude other possible explanations.
I turn then to the determination of this matter being mindful of the further directions that arise as a result of the type of case before me. As Mr Walklate, for the Crown, said at the commencement of his address at conclusion of the evidence, “this case is about whether the Crown can show that the defendant’s truck struck the deceased’s bicycle.”
The case is acknowledged by the Crown as one based on circumstantial evidence. The circumstantial evidence direction which I am mindful of is as follows:
Circumstantial evidence is evidence of circumstances which can be relied upon not as proving a fact directly but instead as pointing to its existence. It differs from direct evidence, which tends to prove a fact directly: typically, when the witness testifies about something which that witness personally saw, or heard. Both direct and circumstantial evidence are to be considered.
To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances.
If there is any reasonable possibility consistent with innocence, it is your duty to find the defendant not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt
The second specific direction to be considered by me arises from the nature of the charge. The charge is brought pursuant to s 328A(4) of the Code and as such the Prosecution must prove that the defendant:
1)Operated, or in any way interfered with the operation of, a motor vehicle;
2)In a place, namely: Townsville;
3)Dangerously.
I have previously detailed n paragraphs [15] to [18] of these reasons the various matters to which I have turned my mind.
The third specific direction that I am mindful of relates to the evidence of expert witnesses. In this case specifically, the evidence of Senior Sergeant Nalder and Sergeant Stocker, need to be considered in this light. The expert witnesses direction is in these terms:
Certain witnesses whom I’ve heard referred to as expert witnesses have been called to give evidence. The ordinary rule is that witnesses may speak only as to facts and not express their opinions. An exception to the general rule is that persons duly qualified to express some opinion in a particular area of expertise are permitted to do so on relevant matters within the field of their expertise.
However the fact that we refer to such witnesses as expert does not mean that their evidence has automatically to be accepted. In this matter I am the sole judge of the facts and I am entitled to assess and accept and reject any such opinion evidence as I see fit. It is up to me to give such weight to the opinions of the expert witnesses as I think they should be given, having regard in each case to the qualifications of the witness and whether I thought them impartial or partial to either side and the extent to which their opinion accords with whatever other facts I find proved. This is a trial by Judge alone, not a trial by expert; so it is up to me to decide what weight or importance I give to their opinions or indeed whether I accept their opinion at all.
It is also important to remember that an expert’s opinion is based on what the expert witness has been told of the facts. If those facts have not been established to my satisfaction the expert’s opinion may be of little value.
Finally, I have reminded myself of the special direction relating to the defendant not giving evidence. The direction is as follows:
The defendant has not given [or called] evidence. That is his right. He is not bound to give [or to call] evidence. The defendant is entitled to insist that the Prosecution prove the case against him, if it can. The Prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt, and the fact that the defendant did not give evidence is not evidence against him. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the Prosecution. It proves nothing at all, and I must not assume that because he did not give evidence that adds in some way to the case against him. It cannot be considered at all when deciding whether the Prosecution has proved its case beyond a reasonable doubt, and most certainly does not make the task confronting the Prosecution any easier. It cannot change the fact that the Prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt.
Bearing those matters in mind I turn then to the submissions of both the Prosecution and the Defence. The Prosecution relied upon a number of pieces of evidence that it says lead to the conclusion that the truck driven by the defendant struck the deceased’s bicycle from behind. These include:
1)That the defendant’s truck overtook the deceased’s bicycle at the critical point;
2)That the bicycle was positioned near to the curb;
3)That the damage to the bicycle demonstrates that it was stuck from behind by a slow moving heavy vehicle.
The Prosecution then detailed how each of those conclusions can be drawn from the evidence and why they argue that is the only rational conclusion. Reliance is placed upon the scale plan and the CCTV footage of the bicycle and the defendant’s truck moving along Echlin Street, and it is submitted that ‘common sense’ and ‘common knowledge’ would show that the bicycle would have been passed a blue motor vehicle seen in a number of the photo exhibits and specified on the scale plan. That, however, is not at all the evidence of the defendant in his statement.
Additionally, the Crown relies upon the evidence of where the bicycle was found as being indicative of a point of impact. The Defence note however that there are other contentions as to what the causes of damage to the bicycle might be and the reasons behind a skid mark found on the roadway.
The Crown argued that the friction mark, the place where bicycle parts were found on the roadway and the fact that the parts were missing from the deceased’s bicycle point to where the impact occurred. However, the Defence argues that there are other reasonable hypotheses for the skid mark, braking by the deceased as he saw the manhole in front of him, and the bicycle parts being on the road because the bicycle hits the road there, and the deceased having lost control of the bicycle.
This is where the Crown puts great weight on the evidence of Sergeant Stocker and in particular upon his expertise. Reliance is placed upon his ten years of crash testing and his extensive experience in examining road accidents involving bicycle/ motor vehicle collisions. Sergeant Stocker gave evidence as to his opinions in respect of the damage to the bicycle and the cause of such damage. He says it was consistent with being struck from behind. Only rather grudgingly did he acknowledge that all of the damage to the bicycle, excluding the fraying to the gear cable, could have come from the bicycle being run over by a heavy vehicle once it was already on the road.
There is certainly evidence to suggest that the deceased’s bicycle was struck from behind by a heavy vehicle or that there was a collision with the right hand side rear wheel of the bicycle. But other than the fraying to the gear cable, there are other reasonable explanations.
There is also the real issue that arises here as to Sergeant Stocker’s ability to give evidence in respect of the cause of damage to a bicycle constructed of carbon fibre rather than the steel and alloy bicycles that he has conducted tests upon. Sergeant Stocker, to all intents and purposes, acknowledged that lack of expertise when he suggested that Senior Sergeant Nalder obtain evidence from an expert in carbon fibre bicycles, their construction and most significantly, their response to stressors when involved in motor vehicle collisions.
The Crown also stressed the conclusions as to how various gouges, seen in the rim of the rear tyre, could have occurred, and stressed that the evidence of Sergeant Stocker pointed only to the gouges caused by pressure applied from the rear brake calliper which had been broken. Again, that is a reasonable and realistic hypothesis but it is not the only one which could explain the damage to the rim. The rim could be gouged by downward pressure on the side of the rim and the degree of gouging or scratches could be attributable to the varying hardness of the road surface.
Such arguments range back and forth, some may seem stronger from one perspective as to the cause of damage than another perspective. But, a stronger argument does not exclude other hypotheses. Damage to the bicycle seat, showing compression primarily to one side of the seat may be able to be explained as it was by Sergeant Stocker as arising from the pressure of a rear wheel collision, but it by no means excludes the alternatives.
The Crown also acknowledge other circumstantial evidence which could be relied upon or otherwise discarded. Reference was made to the various reconstructions of the truck rounding the bend in the roadway, noting that in one the truck and trailers were a significant distance away from the large traffic island to the left side of the roadway but that in other reconstructions the truck and/or the trailers mount the traffic island to some degree.
It is argued by the Crown that all that shows is that there is some variability of paths, but that fails to recognise the evidence of the defendant, given in circumstances where he was not seeking to defend his driving, but simply explaining his approach to the bend in the road and subsequent right turn to the quarry. That path, as described by the defendant, had the truck and trailers some distance from the traffic island as they passed the traffic island.
It may be, as submitted, that there is a real variability but there is also a reasonable contention as to how the truck proceeded around the bend without any striking of the bicycle from behind on the right side of the rear tyre.
The submissions made on the part of the defendant had a degree of similarity to those of the Crown, focusing on the path of the truck, the damage to the bicycle and the like, but emphasised the other alternative or reasonable explanations.
The Defence emphasised that the dangerousness of the operation of the truck relates to the point in time where the truck enters the intersection, but as argued, the assumption made is that the deceased is at or on the bend or intersection. That is an assumption and it is contrary to the evidence of the defendant given to police when interviewed on the morning of the incident. The defendant’s evidence was that he passed the deceased at or about the point where the blue motor car was parked and when checking his mirrors, when about to turn right, could not observe the deceased, having passed him earlier. This, it is submitted, is not circumstantial evidence but direct evidence of a passing manoeuvrer in a safe manner prior to the corner and that it is consistent with the defendant’s innocence. It is also argued, that the circumstantial evidence sought to be relied upon by the Crown does not in any way lead to the rejection of the defendant’s account of what occurred.
That is, in my assessment, correct especially when the entirety of the Prosecution case is based on a collision at the bend in the road, according to the scale plan which is some forty or more metres away from the blue motor car.
Senior Sergeant Nalder, even with his expertise and experience, could not calculate a point where the truck and trailers passed the bicycle and in my view I also cannot make an assumption as to that point, even though the bicycle and deceased are positioned toward the top of the bend.
The defence there emphasises the fact that the skid mark of the bicycle tyre is toward the pothole. How that skid mark occurred is not able to be explained but it’s presence toward the pothole or manhole has more than one possible explanation.
Similar speculation about relative speeds or paths is not helpful either, as the only clear evidence is that of the defendant and his version is corroborated by the tyre mark on the first traffic island, some considerable distance before the bend in Echlin Street, which accords with his version of taking the steer wheel of the truck to the right hand traffic island and maintaining such a path.
A jury is instructed not to speculate or to guess and where there is evidence that is corroborative of the version of events given by the defendant it would be improper of me to do so. The tyre marks, found on the right side traffic island and the reconstructions that follow the path described by the defendant support a reasonable hypothesis that there was some other cause of damage to the bicycle and of course, for the tragic death of the deceased.
After that conclusion is reached, it is in my view impossible to be satisfied beyond reasonable doubt that the manner that the defendant operated his motor vehicle was the only possible cause of the accident.
It is unnecessary for me to then further make findings or to express any view as to the case. As I directed myself in respect of circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances. As I have indicated, there are a number of inferences that could be drawn from the circumstances of the accident and the surrounding evidence. But, there is certainly a reasonable possibility consistent with innocence such that I cannot be satisfied beyond reasonable doubt that the defendant is guilty.
I find that the defendant is not guilty.