Irvin v R

1. [1]

   PAYNE JA: On 15 February 2023, a jury in the District Court sitting at Albury found the applicant guilty of one count of dangerous driving occasioning death while under influence of intoxicating liquor, contrary to s 52A(1)(a) of the Crimes Act 1900 (NSW)1. The applicant was also found guilty of one count of failing to stop and render assistance after being involved in a motor vehicle collision that resulted in death, contrary to s 52AB(1).

2. [2]

   On 31 March 2023, the trial judge imposed an aggregate sentence on the applicant of three years and nine months imprisonment, backdated to commence on 1 August 2021, with a non-parole period of two years and six months, to expire on 31 January 2024. On 31 January 2024, the applicant was released to parole.

3. [3]

   The applicant seeks leave to appeal against his conviction for the dangerous driving offence contrary to s 52A(1)(a). No appeal is brought against the applicant’s conviction for failing to stop and render assistance, nor against the sentences imposed by the trial judge. If the appeal is successful, the applicant accepts that he will need to be re-sentenced for the s 52AB(1) offence.

Relevant facts

1. [4]

   On 14 July 2021, two vehicles collided on Barellan Road in south western New South Wales. The driver of one vehicle, Mr Michael Ingram, was killed in the collision. Mr Dennis Irvin (the applicant) was the driver of the other vehicle. The applicant was then 52 years old and living in Barellan.

2. [5]

   Eight days before the collision, on 6 July 2021, the applicant purchased a new Iveco truck and a “King of the Road” caravan. The applicant was driving the truck, which was towing the caravan, at the time of the collision.

3. [6]

   The caravan featured a “rear extension”, protruding by at least 50 cm on the driver’s side which can clearly be seen in this photograph:

4. [7]

   On 14 July 2021, the applicant did not eat at any time before the collision. In the afternoon he left home, driving the Iveco truck and caravan about 5 km, and stopping at the Barellan general store where he bought a packet of cigarettes and a mask. Video of the applicant at the store shows him unsteady on his feet and apparently struggling to find money to pay for the cigarettes. At 3.46 pm, the applicant left the general store, driving his vehicle south on Barellan Road in the direction of his home.

5. [8]

   Travelling in the opposite direction on Barellan Road was Mr Ingram, a 33-year-old transport worker, driving a Mitsubishi Outlander. Mr Manning, a 92-year-old passenger in the car, survived the collision and gave evidence at the applicant’s trial.

6. [9]

   At about 3.50 pm, 3 km south of Barellan, the protruding rear extension of the applicant’s caravan collided with the driver’s side of Mr Ingram’s vehicle, causing Mr Ingram’s death. The impact was enough to break off the entire rear extension from the body of the caravan as may be seen in this photograph:

7. [10]

   After the collision, the applicant stopped for a time but did not assist Mr Ingram or Mr Manning. He did not call the police or an ambulance. The applicant drove home. The front of the Mitsubishi Outlander was completely destroyed in the collision as may be seen in this photograph:

8. [11]

   At about 5.30 pm, the police arrested the applicant at his home. The police could smell alcohol on the applicant’s breath and noted he was unsteady on his feet, had bloodshot eyes and slurred speech.

9. [12]

   The applicant participated in an electronically recorded interview (ERISP), the content of which I describe below. In that interview, the applicant denied he saw the vehicle that collided with him, said he was unsure which lane it had been travelling in, denied he had drunk alcohol that day, but later said he drank three cans of rum and coke after the collision.

10. [13]

    When tested three hours after the collision, the applicant’s blood contained 0.179 grams of alcohol per 100 millilitres. A forensic pharmacologist gave evidence that, even allowing for the three cans of rum and coke the applicant drank after the collision, his blood alcohol at the time of the collision was 0.156 grams of alcohol per 100 millilitres.

11. [14]

    When the police searched the applicant’s truck, they found an empty can of rum and coke in the front passenger footwell and another under the front passenger seat. There was also an empty bottle of alcoholic cider in the passenger side cupholder.

The trial

1. [15]

   On 8 December 2022, an indictment was presented against the applicant containing the following counts:

   1. (1)

      Aggravated dangerous driving occasioning death while under the influence of intoxicating liquor, contrary to Crimes Act s 52A(2);

   2. (2)

      Dangerous driving occasioning death while driving a vehicle in a manner dangerous to other persons, contrary to Crimes Act s 52A(1)(c);

   3. (3)

      Failure to stop and assist after being involved in a motor vehicle collision that caused death, contrary to Crimes Act s 52AB(1).

2. [16]

   On 6 February 2023, the applicant was arraigned before the jury on this indictment, and pleaded not guilty to each count.

3. [17]

   The dangerous driving offences are contained in s 52A of the Crimes Act:

4. [18]

   Subsection (7) defines “circumstances of aggravation”, relevantly:

5. [19]

   The “prescribed concentration of alcohol” is defined by subsection (9) to mean “a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood”.

6. [20]

   Section 52AA of the Crimes Act sets out certain procedural matters affecting the dangerous driving offences. Relevantly, subsection 52AA(5) provides that, where a jury is not persuaded a person is guilty of an aggravated dangerous driving offence, it may find the person guilty of a non-aggravated version of the offence even if that form of the offence has not been charged:

7. [21]

   When a verdict is given under this subsection, the verdict is on a “statutory alternative” count. As noted at the outset, it was on this statutory alternative count that the jury ultimately found the applicant guilty.

8. [22]

   At the heart of this appeal is s 52A(8), which creates a defence to the dangerous driving charges under s 52A:

9. [23]

   If an accused seeks to rely on this defence, it is for the accused to prove on the balance of probabilities that the impact causing death was not in any way attributable to the fact the accused was under the influence of intoxicants. That is because, properly construed, the defence in s 52A(8) operates by placing a persuasive and not merely evidential burden on the accused. There was no challenge by the applicant to this construction of s 52A(8). This understanding of the defence has been the position under the Crimes Act since at least 1957, when the defence of no causal connection was found in s 52A(3): see R v F [1957] SR(NSW) 543.

The issues at trial

1. [24]

   At trial, the main issues in dispute were:

   1. (1)

      Was the applicant driving under the influence of liquor and, if he was, was he driving with a prescribed concentration of 0.15 grammes or more of alcohol per 100 millilitres of blood (count 1 and the statutory alternative count)?

   2. (2)

      If the applicant was driving while intoxicated (whether or not that intoxication was above the prescribed limit), did the applicant show, on the balance of probabilities, that Mr Ingram’s death was in no way attributable to the fact the applicant was under the influence of liquor (the defence under s 52A(8)(a) of the Crimes Act)?

   3. (3)

      Did the applicant fail to stop and assist after being involved in a motor vehicle collision that caused death, contrary to Crimes Act s 52AB(1)?

2. [25]

   Issue (1) is no longer relevant on appeal. Briefly put, the Crown case was that, when the collision happened, the applicant was heavily intoxicated, with a blood alcohol above 0.150 grammes per 100 millilitres of blood. The defence’s case was that there was a doubt about the applicant’s level of intoxication. The applicant does not challenge on appeal the jury’s acceptance that the accused was intoxicated at the time of the accident (since it found him guilty of the statutory alternative offence against s 52A(1)(a)).

3. [26]

   Issue (2) is the only issue in this appeal. The applicant bore the onus of proving the defence in s 52A(8)(a) on the balance of probabilities. At trial, the applicant argued that the evidence demonstrated that the collision happened in his southbound lane. That is, the applicant submitted it was proven that the collision occurred solely because Mr Ingram’s vehicle crossed into the applicant’s lane. The Crown’s case was that, because of his intoxication, the applicant was weaving all over the road and having partially left the paved road, “over-corrected” his vehicle, causing at least part of his vehicle, probably the protruding caravan extension, to enter the deceased’s northbound lane and collide with the deceased’s car.

4. [27]

   Issue (3) is no longer relevant on appeal. The applicant does not challenge the finding of the jury that the applicant failed to stop and assist. It was common ground that even if successful in the appeal, the verdict on count 3 would stand and the applicant would need to be re-sentenced for that count alone.

5. [28]

   On 15 February 2023, the jury delivered the following verdicts:

   1. (1)

      Count 1 (the aggravated intoxication offence, against s 52A(2)): not guilty;

   2. (2)

      The statutory alternative to count 1 (non-aggravated intoxication offence, against s 52A(1)(a)): guilty;

   3. (3)

      Count 2 (the dangerous manner offence, against s 52A(1)(c)): unnecessary to give verdict;

   4. (4)

      Count 3 (failure to stop and give assistance): guilty.

The appeal

1. [29]

   On 11 December 2023, the applicant filed a notice of appeal, seeking leave to appeal against his conviction for the dangerous driving offence contrary to s 52A(1)(a). The sole ground of appeal is:

2. [30]

   The applicant’s case on appeal was that it was unreasonable for the jury to reject his defence under s 52A(8), because the jury should have found that intoxication played no part in causing Mr Ingram’s death.

3. [31]

   The applicant requires leave to appeal on the sole ground he has advanced: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). As the issues the applicant has raised are arguable, leave to appeal should be granted. I will nevertheless continue to refer to Mr Irvin as “the applicant”.

4. [32]

   The principles that are applicable to an appeal on the ground that a verdict is unreasonable or cannot be supported having regard to the evidence were set out by the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, where Mason CJ, Deane, Dawson and Toohey JJ said at 492-3:

5. [33]

   Subsequently, in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, Hayne J (with whom Gleeson CJ and Heydon J agreed) expressed the test for whether the convictions sustained below were unreasonable in the following terms:

6. [34]

   The principles in M were reiterated by the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. French CJ, Gummow and Kiefel JJ, in their joint judgment, said at [13]-[14]:

7. [35]

   The High Court in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 made clear that there is no inconsistency in the formulation of the test in Libke on the one hand and in M on the other:

8. [36]

   In Dansie v R (2022) 96 ALJR 728; [2022] HCA 25 at [12], the High Court confirmed the continuing authority of M as the test for an unreasonable verdict.

9. [37]

   In performing the task entrusted to it when reviewing a conviction, a court of criminal appeal must not disregard the benefit the jury enjoys in seeing and hearing the witnesses before it: Pell at [37]. The jury’s advantage includes, but is not limited to, its capacity to see and hear the witnesses give their evidence. As the High Court explained in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]:

10. [38]

    In this appeal, the applicant’s case is that the jury was compelled to find that the applicant’s defence under s 52A(8) had been established. Because, as explained, the accused bears the onus of establishing this defence, it was for the applicant to satisfy the jury at trial that, on the balance of probabilities, the defence was proven. The applicant’s written submissions expressed the matter this way:

11. [39]

    The applicant’s argument was that, on the evidence, the only proper finding was that the collision occurred on the applicant’s side of the road, and not on the deceased’s side of the road. That meant, the applicant argued, that the jury was obliged to find that the death occasioned by the impact was in no way attributable to the applicant’s intoxication, entitling the applicant to the defence under s 52A(8)(a). Implicit in this argument was the submission that the fatal impact happened because, and only because, Mr Ingram crossed into the applicant’s southbound lane.

Consideration

1. [40]

   As I have explained, the dispute between the parties is whether the evidence at trial was such that the jury must have been satisfied, on the balance of probabilities, that the collision happened wholly in Mr Ingram’s northbound lane, and that therefore the applicant’s intoxication in no way caused the fatal accident, such that the defence in s 52A(8) was established. The essence of the applicant’s case was an attack on the credibility and reliability of the passenger in the Mitsubishi, Mr Manning, and an attack on the evidence of the police expert, Senior Constable Drummond. The applicant submitted that the jury were obliged to accept the evidence of their expert, Mr George, which evidence was said to establish the defence under s 52A(8).

2. [41]

   To examine whether, in accordance with the authorities I have described, the applicant has established that the verdict was unreasonable, it is necessary to descend in some detail to the evidence.

3. [42]

   The lay evidence at the trial, and my conclusions about matters in dispute, may be summarised as follows.

4. [43]

   The applicant did not give evidence before the jury. However, as explained, the electronic record of his police interview (ERISP), given on the day of the collision, was in evidence.

5. [44]

   In that interview, the applicant said he had bought the truck and caravan a “few weeks ago” and had driven it five or six times over the previous few weeks. He said that, on the day of the collision, he drove the truck and caravan into Barellan to buy cigarettes, before setting out for home along Barellan Road. He said that, when the collision happened, he was travelling at about 50km/h, even though the posted speed limit was 100km/h, because he “wasn’t in a hurry”.

6. [45]

   The applicant initially told the police that he did not see the vehicle which he collided with and said he was unsure of the lane that vehicle was travelling in. The applicant later said that he saw Mr Ingram’s car crossing over the dividing line and coming into his lane. The applicant said he tried to move his vehicle to avoid Mr Ingram’s car, but the car “slammed” into him.

7. [46]

   The applicant was asked about “side parts” that protruded from the caravan. The applicant said he was “not sure” whether he had to push the side parts back into place when he got home. He admitted the caravan had “awnings” that “poke out”, but said the awning was closed at the time of the collision.

8. [47]

   The applicant claimed that, after the collision, he stopped, exited his vehicle and assessed the damage from the accident. He said he saw no debris from the collision or damage to the other car. The applicant gave evidence that he did not render assistance to the occupants of the other vehicle because he thought that the occupants of the other car “were fine”. He denied having moved debris off the road.

9. [48]

   The applicant also denied that he had consumed any alcohol that day, before eventually telling the police he had consumed three cans of rum and coke after the collision.

10. [49]

    Mr Irons was driving behind the applicant’s Iveco truck and caravan as it travelled along Barellan Road prior to the collision. He observed that the “side of the caravan was sticking out. Yeah, the compartment on it was sticking out over the white line”. He said that he followed the Iveco truck and caravan while it was in a 50km/h zone, but lost sight of it when it entered a 100km/h zone after which the truck and caravan accelerated. It was open to the jury to conclude, based on this evidence, that the applicant lied in his ERISP that he was travelling at 50km/h at the time of the collision.

11. [50]

    The entire time Mr Irons was following the Iveco truck and caravan, which was up to a time a few minutes before the collision, the caravan extension remained on the wrong side of the road. It was open to the jury to conclude that the applicant was driving with the extension on the wrong side of the road in the period immediately prior to the collision. It was open to the jury to conclude that the applicant was not properly in control of the Iveco truck and the caravan immediately prior to the collision.

12. [51]

    Mr Irons arrived at the collision scene shortly after it occurred and saw the Mitsubishi car veering off onto the side of the road with “carnage… like a couch and just rubble- just carnage all over the road”. He saw the Iveco truck and caravan he had previously been following, “veering down around a corner, up the end of the straight”. When it was put to Mr Irons that he had previously said that “99% of [the debris or rubble] was on the left-hand side of the road”, he responded, “it all scattered all over the road”. It was open to the jury to accept Mr Irons’ evidence that debris was scattered all over the road.

13. [52]

    Mr Irons approached the Mitsubishi and assisted Mr Manning to undo his seatbelt after which he checked on Mr Ingram who appeared, “as if, you know, he was having a sleep, like he lowered the seat back”. He then called 000. The time of the 000 call was 3.56pm. Mr Irons estimated he called 000 within three to four minutes of exiting his truck.

14. [53]

    At the time of the collision, Ms Abbey Neville had known the applicant for about eight years. On 14 July 2021, she was driving home from Barellan, leaving her workplace at about 3.25 pm. As she was driving along Barellan Road, she saw a “white and black campervan and caravan hooked on a white ute”. Ms Neville recognised that the vehicle belonged to the applicant.

15. [54]

    Ms Neville then noticed that the side compartment of the caravan was extended. She took a four second video of this, which was shown to the jury. In that video, the vehicle remained in its lane.

16. [55]

    Mr Peter Neville arrived at the collision scene before police arrived. After he got out of his car and started looking at the debris on the road, he observed the applicant arrive at the scene and begin trying to move debris from the collision. Mr Neville described the debris he saw the applicant moving: “I feel at the time it was part of the module of whatever the caravan, or whatever at that time was. It was one of the biggest pieces on the road”. The applicant was only able to move the piece “maybe half a foot” when Mr Neville said him, “Listen, mate, you can’t move that stuff off the road. The police haven’t been here”. The applicant left the collision scene before the police arrived.

17. [56]

    Mr Manning, then 92 years of age, was in the front passenger seat of the car driven by Mr Ingram. At the time of the collision, Mr Ingram, a transport driver for ‘Baptist Care’, had been driving Mr Ingram home from a bingo game. Mr Manning stated that Mr Ingram had been driving him home once a week over the previous four months.

18. [57]

    The applicant’s case was that Mr Manning’s evidence showed that the deceased was driving erratically before the collision, and that at best, Mr Manning’s evidence was inconclusive about which of the two drivers actually crossed the centre line. As I will explain, it was open to the jury to accept Mr Manning’s evidence that it was the extension of the applicant’s caravan which was on the incorrect side of the road.

19. [58]

    Mr Manning gave evidence that the deceased’s vehicle was drifting before the collision and, at one point, Mr Ingram appeared to touch his phone.

20. [59]

    Mr Manning agreed that about two miles from the scene of the collision he observed the deceased’s vehicle drifting slightly on the road. He said the deceased was staying within his lane but he was going towards the centre line. Asked if it was in a drifting motion, he said “slightly”. Mr Manning was asked:

21. [60]

    Mr Manning was also asked whether the deceased in fact used the phone. He answered:

22. [61]

    This, Mr Manning explained, occurred at some time after the deceased’s vehicle drifted. Mr Manning was certain that the deceased did not actually use the phone.

23. [62]

    The applicant submitted there was evidence, contrary to Mr Manning’s account, that the deceased did use his phone as a phone. That evidence was an “activity log” showing the phone’s internet and network connections for 14 July 2021. According to that log, the deceased’s phone entered a “data session” at 3.51 pm on 14 July 2021, at around the time of the collision. The activity log, however, was not the subject of any expert evidence and no sure conclusions could be drawn based on it. In particular, the record relied upon shows “data sessions” recorded after Mr Ingram’s death, at 5.51 pm and 5.57 pm on 14 July 2021. There was no evidence about whether a “data session” required a user’s active input, or whether a session could reflect some kind of automatic function or connection to a telecommunications tower. Absent any explanation in the evidence, the jury was entitled to give the evidence of the “data sessions” no weight. The jury was not obliged to conclude that Mr Ingram used his mobile phone to access the internet just before the accident.

24. [63]

    The applicant’s case was that, on this evidence, the jury was obliged to conclude that the deceased was weaving on the road and “fiddling” with his phone while driving. I have concluded, however, that the jury was not bound to conclude from this evidence that Mr Ingram crossed the centre line. Mr Manning’s evidence was clear that the deceased was drifting within his lane. Nor was there evidence to compel the conclusion the deceased was using his phone. At most, Mr Manning’s evidence proved the deceased touched his phone, with one hand, while the other was on the wheel. Importantly, Mr Manning’s evidence was that the deceased did not swerve or weave while he did so. That evidence was uncontradicted. The jury was entitled to reject the submission that, because he was distracted by his phone, Mr Ingram caused the collision.

25. [64]

    Mr Manning gave extensive evidence about which of the two vehicles crossed onto the wrong side of the road. In his statement to police, Mr Manning’s evidence was that the applicant’s “light truck” crossed into the deceased’s northbound lane.

26. [65]

    In a statement he later made to an investigator, which was before the jury, Mr Manning said “I don't recall seeing the centre line. I do recall [the deceased] drifting towards the centre line immediately before the impact” and “I recall the light vehicle also weaving. I cannot say whether either vehicle had crossed the centre line at the time of impact because we were both so close to the centre of the road”.

27. [66]

    At the trial, Mr Manning agreed he had made both the initial statement to police and the later statement to the investigator. Mr Manning also agreed he had told the investigator the following:

28. [67]

    The jury were entitled to conclude that Mr Manning’s statements could be reconciled, in light of his examination in court. In examination in chief, Mr Manning’s evidence was that some part of the applicant’s vehicle crossed the centre line. He said that the deceased had been completely on the correct side of the road, and that a protruding part of the applicant’s caravan hit the deceased’s car:

29. [68]

    In cross-examination, it was suggested to Mr Manning that there was an inconsistency between his examination-in-chief and the statement he gave to the investigator:

30. [69]

    In re-examination, Mr Manning repeated his evidence that it was part of the applicant’s vehicle that crossed the centre line:

31. [70]

    The applicant submitted that Mr Manning’s evidence was, at best, inconclusive, and that his final position was that he couldn’t be certain which vehicle had crossed into the wrong lane. His evidence on the position of the vehicles, the applicant submitted, had no weight.

32. [71]

    I do not agree. The applicant’s characterisation of Mr Manning’s evidence is not accurate. Mr Manning may have been uncertain about the position of the vehicles in his statement to the investigator, where he accepted it was possible either vehicle crossed the centre line. However, his oral evidence was consistent that he did not see the deceased’s vehicle cross into the southbound lane. Mr Manning’s evidence was sufficiently clear that the applicant’s “truck” crossed the centre line, although the “caravan” did not. Mr Manning’s concession that he could not “absolutely guarantee” his recollection was an appropriate concession, given the time since the accident and the limits of memory.

33. [72]

    Importantly, Mr Manning’s cross-examination focused on the location of the “caravan” and “truck”, and not on whether the caravan’s protrusion or extension crossed the centre line. Mr Manning’s evidence on the position of the extension was confined to his examination in chief and his re-examination. In chief, Mr Manning was clear that the protrusion was in “in our lane” (as extracted above at [67]). In re-examination, Mr Manning was asked the following question.

34. [73]

    Mr Manning’s answer “[n]o, not then” implies that the protrusion crossed the centre line at some point. When asked to clarify, however, Mr Manning did not answer in terms of the caravan’s protrusion, but in terms of the “truck” and “caravan”:

35. [74]

    Mr Manning’s evidence, given in examination in chief, was that the protrusion was in “our”, that is the deceased’s northbound, lane.

36. [75]

    The jury had a real advantage in its assessment of the reliability and credibility of Mr Manning’s evidence. Contrary to the applicant’s submission in this Court, the jury was entitled to reject the suggestion that Mr Manning’s evidence showed the collision occurred when the Iveco truck and the caravan were wholly within the applicant’s lane.

37. [76]

    At trial, two road experts gave evidence: Senior Constable Drummond, and Mr George, who was called by the applicant.

38. [77]

    Some of the basic information about the vehicles, including their size, was not in dispute. The maximum body width of the Iveco was 2.35 metres including side mirrors. The front wheel track (that is, the distance between the front wheel tyres) was 1696 mm and the rear wheel track was 1541 mm. The side mirrors of the vehicle extend to 17.7 centimetres each side. The width of the caravan, with the extension fully retracted, was approximately the same width as the body of the Iveco. The fully extended extension measured 103 centimetres wide and protruded approximately 1 metre from the driver’s side of the caravan. On the day of the collision, the applicant was driving with the extension protruding approximately 50 centimetres. There were no mechanical faults or defects present in the Mitsubishi Outlander which contributed to the collision. The track distance of that vehicle was 1.54 metres.

39. [78]

    Senior Constable Drummond noted that following the collision the “entire extension section of the caravan was missing, with only the framework above, below and in front of the extension remaining. The missing paneling extended to the rear corner and the rear of the vehicle, with only one quarter of the rear panel on the left hand side (nearside) still attached.”

40. [79]

    Senior Constable Drummond observed a “small amount of white coloured scuffs” on the lower part of the driver’s side mirror cover on the applicant’s truck, which appeared to be recent as there was no dirt or dust in the cracks. Senior Constable Drummond gave her view that the damage was consistent with contact between the mirror and a white object, likely the Mitsubishi’s driver’s side mirror or “A pillar”.

41. [80]

    The indicator cover on the outside edge of the Iveco’s mirror was cracked. Senior Constable Gentles, an investigating police officer, also observed a “white scuff mark” on the indicator lens. There was no other damage consistent with collision damage on the outside body of the Iveco.

42. [81]

    The Mitsubishi Outlander was damaged along the driver’s side of the vehicle. The “bonnet had been peeled back and was resting flush against the windscreen completely exposing the engine bay. The driver’s side of the bonnet was crumpled and torn”. The driver’s side front quarter panel (the panel above the wheel arch) and driver’s side mirror was missing. The driver’s side front quarter panel was found on the roadway. Although glass from the driver’s side mirror was found on the western shoulder, the driver’s side mirror was never recovered. Pieces of wood and wood particle board of various sizes were found in the engine bay, driver’s area, rear passenger seat and boot. White painted fibre glass, consistent in appearance and colour with parts of the caravan, were also found in the engine bay and in front of the windscreen.

43. [82]

    Senior Constable Drummond gave evidence that the collision occurred on Barellan Road, 300 metres north of the intersection of Orams Road and Barellan Road. There was one lane of travel in each direction with a single broken line separating the opposing lanes. The speed limit was 100km/h.

44. [83]

    The Collision Accident Diagram (CAD) was in evidence as follows:

45. [84]

    The diagram is oriented with the east at the top, the west to the bottom, the south to the right and the north to the left. Both lanes of Barellan Road are visible. The lane closer to the top of the diagram is the applicant’s southbound lane.

46. [85]

    The debate in the evidence at the trial principally focussed on the section of the CAD I have marked in red in the diagram above. That section of the CAD, when enlarged, shows “tyre marks” labelled in the middle section of the diagram, contained amongst the field of debris left by the collision. For ease of reference, the following is an expanded “close-up” of this section of the CAD:

47. [86]

    Senior Constable Drummond’s evidence in chief was that the set of tyre marks shown in the “close up” diagram were likely caused by the applicant’s vehicle. She opined that either the Iveco truck or the caravan was driving off the tar surface of the road (in the marks immediately to the left of the debris field in the CAD) and the applicant corrected his steering to come back on to the road immediately prior to the collision.

48. [87]

    Senior Constable Drummond gave her opinion that the applicant’s driver’s side mirror contacted with the driver’s side of the Mitsubishi before “heavy impact” occurred between the driver’s side of the Mitsubishi and the extended section of the caravan. This caused the extended portion of the caravan to separate from the body of the caravan towards the rear and to the left of the vehicle (passenger side). There was no contact between the Mitsubishi and the body of the Iveco or the front portion of the caravan, before the extension.

49. [88]

    She gave evidence that it was “likely that the right side of the Iveco has crossed the centre line into the northbound land to some degree after braking, the [applicant] steered to the left to bring the vehicle back into the southbound lane immediately after braking. The lower edge of the Iveco side mirror has contacted the driver’s side of the Mitsubishi. As the Iveco started moving left, the body of the caravan has crossed the centre line or come close to the centre line and the collision between the caravan extension and the Mitsubishi occurred”.

50. [89]

    The tyre marks shown in the debris field, Senior Constable Drummond opined, were caused by the Iveco truck as “it flows through. You can follow the vehicle travelling in that direction”. Senior Constable Drummond said she measured the tyre marks as being “parallel to some extent”. In cross-examination, Senior Constable Drummond accepted the possibility that the tyre marks shown in the blown up diagram were made by two different vehicles, but adhered to her evidence that the tyre marks were not made by the Mitsubishi.

51. [90]

    In relation to the “gouge marks” depicted on the blown up diagram, they were located 20 cm from the centre dividing line. Scratch marks were located closer to the centre dividing line. Senior Constable Drummond opined that the gouge marks were caused by a large piece of caravan contacting with the roadway after the collision with the Mitsubishi.

52. [91]

    While the debris was mostly within the southbound lane or eastern roadside, there was a large amount of debris in the form of splinters and insultation fibres around the middle of the road. The CAD plan does not show the location of all the debris.

53. [92]

    In Mr George’s opinion, there was “no way” to correlate the damage on the applicant’s side mirror with any damage on the Mitsubishi.

54. [93]

    Mr George gave evidence that the tyre marks in the blown up diagram were caused by the Mitsubishi. He said that the western mark had a “harder outline along the edge of the tyre mark that is closest to the centre line” whereas the opposite edge was much lighter. He explained that this is called “side deflection” and occurs where a tyre is forced towards its shoulder, causing the tyre to scuff and depositing a tyre mark. Where the tyre mark has a dark outline, Mr George said, it is caused by additional weight being put onto that tyre.

55. [94]

    Mr George said that because the Mitsubishi was hit on the driver’s side “above the centre of gravity”, that would tend to lift or lighten the load on the right-hand front wheel, causing it to “pitch up a little bit” whilst simultaneously “adding of the load on the left-hand tyre”, causing side deflection on the left hand side and under deflection on the right hand side.

56. [95]

    He said that the tyre marks in the blown up diagram did not belong to the Iveco because the tyre marks were only 1.5 metres apart and the wheel track of the Iveco was 1.7 metres. He said the tyre marks also did not show “shadowing”, consistent with the pulsing of the anti-lock braking system (“ABS”) with which the Iveco truck was fitted.

Conclusion

1. [96]

   Having regard to all of the evidence, the applicant’s submission that the evidence, considered as a whole, obliged the jury to find the defence under s 52A(8) was established, must be rejected.

2. [97]

   All of the matters now relied upon by the applicant were raised before the jury. The jury were entitled to accept the evidence of Mr Manning and conclusions of Senior Constable Drummond. The jury was not required to reject that evidence based on the evidence of Mr George.

3. [98]

   The jury were entitled to conclude applicant was driving off the road, at least in part, immediately before the collision, as counsel for the applicant said:

4. [99]

   The jury were entitled to accept the evidence of Mr Manning that the Iveco truck and caravan went off the road into the verge between the road and the fence. The jury were entitled to conclude that the applicant was driving erratically at the time of the collision. Mr Manning’s evidence was that “as we got about roughly a hundred yards apart, he swerved onto the road and came towards [us] in a pretty sharp angle.” Mr Manning’s credibility and reliability was a matter about which the jury had a significant advantage compared to this Court: Baden-Clay at [65]-[66], extracted above at [39]; Pell at [37]; SKA at [13], extracted above at [36]; M v The Queen at 493, extracted above at [34].

5. [100]

   As I have said, Mr Manning gave evidence, consistent with evidence of there being no damage to the body of the Iveco truck or caravan, that the Mitsubishi car passed the Iveco truck and caravan and the collided with the portion of the caravan that was “sticking out to the right hand side”. He said the “part of the caravan that was sticking out” was “in our lane when we were hit, yeah”.

6. [101]

   Senior Constable Drummond opined that it was likely that the Iveco truck crossed into the northbound lane “to some degree” before the applicant steered the Iveco truck back into the southbound lane. Senior Constable Drummond’s opinion that the Iveco truck partially intruded into the northbound lane was consistent with Mr Manning’s evidence. Senior Constable Drummond’s opinion that the Iveco truck was steered back into the southbound lane was consistent with Mr Manning’s evidence that the Mitsubishi was able to pass the Iveco truck and caravan before colliding with the protruding caravan extension.

7. [102]

   The jury was not obliged to accept Mr George’s evidence. In relation to the contact between the Iveco’s driver’s side mirror and the Mitsubishi, when the applicant’s truck was examined, police observed the indicator cover on the driver’s side mirror was cracked with a “white scuff mark” on the lens, and a “small amount of white coloured scuffs” on the lower part of the driver’s side mirror cover, which appeared to be recent as there was no dirt or dust in the cracks. There was no other damage to the Iveco truck. The previous owner of the vehicle (noting that the truck had only been purchased by the applicant one week earlier) confirmed there was no prior damage to the vehicle.

8. [103]

   As I have explained, Senior Constable Drummond opined that this damage was consistent with contact between the mirror and a white object. Mr George conceded that the horizontal marks around the Iveco’s indicator lens “may have interacted with some part of [Mr Ingram’s] car”. The Iveco truck was taller than the Mitsubishi. Mr George accepted that if the Iveco was “leaning down on the driver’s side”, this would “drop the mirror down”. The “over deflection” of the western tyre mark supported the inference that the Iveco truck was leaning down on the driver’s side, which would have allowed the Iveco truck’s driver’s side mirror to come into contact with either the Mitsubishi’s driver’s side mirror or A-pillar. This inference was available despite the fact that the damage to the Iveco’s driver’s side mirror could not be directly correlated to the Mitsubishi mirror (as it was never found) or the A-pillar (as it was not tested).

9. [104]

   In relation to the tyre marks shown in the blown up diagram reproduced above, a principal basis for Mr George’s opinion that the tyre marks were made by the Mitsubishi was that the 1.5 metre distance between the marks was narrower than the front wheel track of the Iveco truck. However, the evidence showed that the track width of the rear wheels of the Iveco vehicle were 1541 mm, the same as the Mitsubishi. There was no evidence about the track width of the caravan wheels. Accordingly, the track width of the tyre tracks in the blown up diagram did not mandate that the jury accept Mr George’s opinion that the tyre marks were made by the Mitsubishi.

10. [105]

    A second important basis for Mr George’s opinion about the tyre marks shown in the blown up diagram was the absence of “shadowing”, consistent with the pulsing of the anti-lock braking system (“ABS”) with which the Iveco truck was fitted. Although the tyre marks did not show “shadowing… consistent with the pulsing of the ABS system”, this was not determinative. Both the Mitsubishi and the Iveco truck were fitted with an ABS system. Further, the applicant told the police in the ERISP that when he applied the brakes, he did not slam them on, “just used them normally”.

11. [106]

    The location of the gouge mark, scratches and majority of debris in the southbound lane was also consistent with Senior Constable Drummond’s opinion that the collision occurred when the body of the applicant’s caravan had “crossed the centre line or come close to the centre line” and contrary to the opinion of Mr George that it occurred “at or near” the tyre marks shown in the blown up diagram. Not all the debris from the collision were in the southbound lane. Senior Constable Drummond gave evidence there was a large amount of debris in the middle of the road, “in the form of splinters and insulation fibres”, which, in her opinion, indicated the “collision did not occur on the left side of the southbound lane”, as posited by Mr George. This evidence from Senior Constable Drummond was supported by Mr Irons, who said that the debris was “scattered all over the road”. The location of the debris was consistent with Senior Constable Drummond’s opinion.

12. [107]

    The applicant’s case on appeal and at trial proceeded on the basis that Mr George’s opinion was the only one consistent with the objective facts of the collision. I reject that submission. Mr George’s account was only preferable to Senior Constable Drummond’s account if the jury found facts consistent with the assumptions Mr George had made. As I have explained, it was clearly open to the jury to make findings of fact consistent with the assumptions made by Senior Constable Drummond. It was open to the jury to prefer Senior Constable Drummond’s opinion to that offered by Mr George. At the very least, it is clear that the jury were not obliged to accept Mr George’s opinion that the tyre marks shown in the blown up diagram were made by the Mitsubishi.

13. [108]

    Mr George’s opinion was also flatly inconsistent with the evidence of Mr Manning. If the tyre marks in the blown up diagram were made by Mitsubishi, it would involve a conclusion that there had been a determined change of direction by the Mitsubishi shortly before the time of the collision. It would involve a conclusion that the Mitsubishi had driven into the applicant’s lane at an acute angle. If the Mitsubishi had driven at that angle into the wrong lane, Mr Manning, as the passenger, would be very much aware of that change of direction.

14. [109]

    The applicant’s ERISP, and the numerous lies that he told during that interview, were also available to the jury in reaching the conclusion that the applicant was responsible, at least in part for the collision, such that the defence under s 52A(8) was not proven.

15. [110]

    On all of the evidence, it was open to the jury to not conclude that the applicant bore no responsibility for the collision. On the entirety of the evidence, the applicant, being under the influence of alcohol, was driving in an erratic manner and caused the protrusion extending from the caravan he was towing to collide with the Mitsubishi driven by the deceased. The verdict of the jury was not unreasonable.

Proposed Orders

1. [111]

   I propose the following orders:

   1. (1)

      Application for leave to appeal granted.

   2. (2)

      Appeal dismissed.

2. [112]

   MITCHELMORE JA: I agree with Payne JA.

3. [113]

   WILSON J: I also agree with Payne JA.