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nsw_caselaw:5c0dc4d1e4b0851fd68d038b:96 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | (2) Similar comments are applicable to the fact that the four beer cans and a piece of the van’s headlight were found off the roadway, although Mr George gave greater, but not determinative, significance to the resting position of the two beer cans referred to at [29] above. His view as to these two cans was however only based on unidentified “vehicle/pedestrian crash research” that he said demonstrated “fairly consistently” that “loose items” “can be knocked off and land very close to where the impact occurs” (emphasis added) (ibid). Moreover, later in his evidence, Mr George indicated that when he said that research indicated that loose items tended to fall “close” to the impact site, he was referring to items falling within about two metres of the accident site. This concession rendered his evidence on this topic of little significance as the two beer cans were found within about a metre of the roadway. | 96 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:97 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | In addition, Mr George did not give any satisfactory explanation, consistent with his view that loose items tend to fall close to an impact site, as to why the other two beer cans, which were apparently also in the plastic bag being carried by the deceased at the time of the collision, were found considerably further away.
(3)-(6) For the reasons already given, the finding of other debris on the grass or in the road gutter was not inconsistent with the collision having occurred on the roadway.
Similarly, that the road lane was wider than the van was not of any particular significance, bearing in mind that the appellant, who was driving the van, was, on any view, heavily intoxicated. Dr Perl’s evidence was that his driving skills would have been “grossly affected”. Some deviation of the van from the centre of lane one would not therefore have been surprising or indicative of the appellant intending to drive at the deceased. | 97 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:98 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 103. Fourthly, the Crown’s submission that the deceased’s body would have passed through the “furrow” after the collision was not consistent with Mr George’s “horizontal trajectory” diagram (see [38] above). The line of travel, drawn from the two beer cans to the deceased’s body, did not pass through the “furrow”. If Mr George had in fact drawn a line on the diagram passing through the identified locations of the furrow and the resting position of the deceased’s body, it would have commenced (west of the furrow) on the roadway and suggested that the collision occurred there. | 98 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:99 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 104. It is possible that if the deceased’s torso passed along the line on the diagram representing the “trajectory of the deceased”, one of his extremities may have gone through the “furrow”, but that possibility is difficult to reconcile with Mr George’s view that the furrow was most likely created by the deceased’s torso (see [38] above). I should add that in cross-examination Mr George appeared to resile from the suggestion conveyed by the title of his diagram (see [30] above) that it accurately depicted his view of the post-collision trajectory of the deceased’s body (see [32] above). That having occurred, there was an absence from Mr George of any clear evidence as to what he considered the trajectory of the deceased’s body would have been following its collision with the appellant’s van. | 99 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:100 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 105. Fifthly, the Crown relied upon a “flicker” of mud and grass found on the windscreen of the van after the collision. The principal difficulties with this reliance were, first, that there was no evidence that the flicker was not on the van prior to the collision. Secondly, in respect of the mud found on the deceased’s shoes, as the deceased was undoubtedly walking along the grass verge prior to the collision, it is distinctly possible that the mud and grass were on one or both of the deceased’s shoes prior to the collision, instead of attaching to them at the moment of collision as they dug into the grass on which the Crown alleged the deceased was then standing. | 100 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:101 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 106. Sixthly, the Crown submitted that the deceased was unlikely to have stumbled onto the roadway from the grass verge. The two witnesses who saw him walking along the grass verge prior to the collision, Mr Jarman and Ms Boucher, however, both observed him to be “staggering” (see [12]-[13] above). Ms Boucher also referred to the deceased “stumbling along”. They seem to have been mistaken in thinking that he was “trying to put a jumper on” as no jumper was found at the collision site. However, the deceased may have been doing something playful with the plastic bag, containing the beer cans, that he was carrying. His high spirited conduct inside the Plumpton Hotel (jumping up and screaming, and then hugging Chicken who was a stranger – see [9] above) and in the hotel car park (jumping around and shadow boxing before he retrieved the plastic bag containing the beer cans – see [10] above) suggest that this is a realistic possibility. | 101 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:102 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 107. Seventhly, the Crown relied upon the deceased’s injuries being to his back. However, if the deceased staggered or stumbled onto the roadway, he could have ended up facing in any direction, including with his back to any on-coming traffic.
108. Eighthly, the Crown submitted that Dr Milne’s palynology evidence indicated, based on her insect-pollinated pollen findings, that at least the left side of the appellant’s van passed over the grass verge. The principal difficulty with that submission is that Dr Milne accepted that insect-pollinated pollens (including the Santalum pollen which was the principal focus of her evidence) could be found anywhere from 50 to 100 metres from their originating plants (see [52] above). As well, Dr Milne accepted that the van’s tyres might have picked up Santalum from a clod of grass which happened to be on the road (ibid). | 102 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:103 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 109. Another difficulty with the submission is that Dr Milne opined that the relevant pollen was on the van’s two passenger-side tyres and the rear driver-side tyre, but not on the front driver-side tyre. It is difficult, if not impossible, to envisage the van being driven by the appellant onto the grass verge in such a way as to keep the van’s front driver-side tyre off the grass when the other three tyres were on it. Each of the crash investigation experts attested to this difficulty.
110. Ninthly, the Crown challenged the appellant’s evidence that he had not seen and recognised the deceased walking along the grass verge (see [56] above). That he might not have is not however inconceivable in light of the appellant’s state of inebriation. | 103 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:104 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 111. Tenthly, the Crown relied upon the appellant’s post-collision conduct. This conduct clearly revealed the appellant’s consciousness that he had done something seriously wrong. However, in my view, the appellant’s conduct was equally consistent with a concern about having struck a pedestrian with a vehicle that he was driving whilst heavily intoxicated, as with a consciousness of guilt of murder. As between those two possibilities, the conduct was neutral. When considering Ground 2 below (see [127]-[138]), I conclude that it was therefore not properly put by the Crown to the jury, or left by the trial judge to the jury, as evidence of the appellant’s consciousness of his guilt of having committed murder. Even if that were not so, evidence of the conduct could not, for the same reasons, be regarded as having significant probative value. | 104 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:105 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 112. Finally, I turn to the Crown Prosecutor’s response at the trial to the defence’s case, that its expert, Mr Booth, supported, that the absence of tyre tracks on the grass verge caused by the van was inconsistent with the Crown’s case that the appellant had driven the van on to the grass verge. | 105 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:106 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 113. The Crown’s expert, Mr George, appeared to be troubled by their absence. He said in the conclusion to his evidence-in-chief that he “would have liked to have seen tyre marks” (see [27] above). He gave this as a reason for expressing his ultimate view that the collision occurred on the grass verge only “on the balance of probability”, as distinct from any higher level of confidence. He appears to have arrived at that view because of the “accumulative information from the other - all those aspects of you know, physical evidence that has all the dirt and the grass and the mud on them” (ibid). However, on examination, and for the reasons given above, that other evidence is in fact also consistent with the collision having occurred on the roadway. | 106 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:107 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 114. Mr George described the circumstances in which tyre marks might not have been made as involving an absence of “significant [braking or] steering”, on the part of the van (see [46] above). Thus, tyre marks might not have been left if the van was “just rolling generally straight” and there was only “slight steering” (ibid). He suggested that this might have been the case if the van had been driven on to the grass verge “back a ways” where a driveway met Richmond Road (ibid). That driveway was however immediately followed to its east by a lamp and signpost (the western signpost). These appear from photographs in evidence to be only about a metre from the gutter, certainly insufficient for the van to pass, on the grass, between the signpost and the gutter. If the van came onto the grass verge after the western signpost, it would have travelled 20 metres or less before reaching the point where the two beer cans were found together near the kerb (the point where Mr George hypothesised that the collision | 107 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:108 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | probably occurred). The van then had only a maximum of another 20 metres to leave the grass verge before encountering the eastern signpost. According to Mr George, at a speed of 70 kilometres per hour the van would have travelled 20 metres in about a second. This speed was at the top of the range of his estimates of the van speed, with 45 kilometres per hour being at the bottom. It is difficult, if not impossible, to contemplate that the appellant in his inebriated state could have driven the van at a speed between 45 to 70 kilometres per hour on to and off the grass verge within about 40 metres, without any significant braking or steering, or indeed that he could have done it all. | 108 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:109 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 115. Furthermore, the Crown Prosecutor put to the jury that the grass verge was “a hard-compacted shoulder … a hard surface” (see [78] above), but there was no evidence that this was so. On the contrary, there was evidence of the “furrow” which comprised a gouge in the soil and grass made by the deceased’s body. As well, there was much mud, soil and grass on both the deceased’s clothing and the debris from the collision, which suggests a degree of softness of the surface. Moreover, Senior Constable Gearside of the Crime Scene Unit described the grass verge as “damp” and stated that she did not have any recollection of there being rain between the time of the collision and when she attended the scene (see [18] above). Her evidence therefore suggested that the grass verge was damp at the time of the collision. | 109 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:110 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 116. In his final address, the Crown Prosecutor relied on a photograph of a Toyota LandCruiser parked on the grass verge, which he had suggested to Mr Booth, in cross-examination, showed an absence of tyre tracks (see [61] above). As Mr Booth made clear in his response, the photograph did not give rise to any inference that the appellant’s van would not have left tyre marks if it had been driven onto the grass because it was not known whether the LandCruiser had come onto the grass over an area of it that was visible in the photograph (ibid). | 110 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:111 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | Conclusion as to whether verdict unreasonable
117. As is necessary, I have considered the evidence in its totality, assessing the united force of the matters that the Crown relied on. Having done so and conducted an independent review of the evidence at the trial, both as to its sufficiency and its quality, I am left with a reasonable doubt as to the appellant’s guilt of murder.
118. The jury’s absence of such doubt is not in my view explicable by any advantage it had over this Court. Questions of credibility of course arose at the trial in relation to the appellant’s evidence but I have put the appellant’s evidence aside for the purpose of the present analysis and considered the strength or otherwise of the prosecution’s case. Thus I have not assumed that the jury accepted any of the appellant’s evidence. Moreover, there are no significant respects in which the Crown contended that its case was advantaged by the appellant’s evidence (cf The Queen v Hillier at [49]-[52]). | 111 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:112 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 119. Certainly, the jury had to consider conflicting evidence given by the prosecution and defence experts, but their evidence was of a complicated nature and this Court has had the considerable advantage of having the opportunity to conduct a protracted examination of the relevant transcript and exhibits. At least, it cannot be said that the jury had any advantage over this Court in its ability to address that evidence. | 112 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:113 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 120. In the particular circumstances of this case, any advantage the jury had over this Court in having seen and heard the witnesses give their evidence was limited, in particular because there was no other significant conflict of evidence to be resolved. The jury had a view of the places at which the relevant events occurred but the Crown did not suggest at the trial or on appeal that the view enabled the jury to determine any matter that was not apparent from the oral and documentary evidence. In particular, (subject to the Crown’s passing observation to the jury that “you attended the scene” quoted in [78] above) the Crown did not suggest that the jury’s view of the collision scene, more than two years after it occurred, might have enabled it to determine whether the appellant’s van would or would not have been likely to leave tyre marks on the grass verge if it had travelled on it. Instead, the Crown relied in this respect on the photograph of a Toyota LandCruiser referred to in [116] above. | 113 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:114 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 121. In considering the regard to be had to the jury verdict in the present case, it is of particular significance that the jury verdict was effectively vitiated by the erroneous course taken at the trial in relation to the appellant’s post-collision conduct. As I indicate below in addressing Ground 2, the jury should have been instructed that the appellant’s post-collision conduct was incapable of demonstrating his consciousness of his guilt of murder. The conclusion of the other two members of the Court on this appeal is that the appellant’s conviction should be quashed and a new trial ordered on Ground 2. In these circumstances, the jury’s verdict that the appellant is guilty of murder cannot, for the purposes of considering Ground 1, be regarded as of any, or at least any significant, value. The Crown relied upon the post-collision conduct as part of the circumstances indicating the appellant’s guilt of murder (see [111] above) and it cannot be assumed that the evidence of it was not influential in the | 114 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:115 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | jury’s deliberations. | 115 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:116 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 122. There were a number of aspects of the evidence that properly formed a significant element of the Crown’s circumstantial case. In particular, the altercation between the appellant and the deceased provided a possible motive for the appellant wanting to harm the deceased, and, on the appellant’s case, as did the remarkable coincidence that it was the deceased that the appellant struck with his van. For the following reasons, when scrutinised, the Crown’s case did not however go far beyond this. | 116 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:117 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 123. First, the evidence of the location and condition of the collision debris was equally consistent with the collision having occurred on the roadway and, on analysis, Mr George’s crash investigation evidence can be seen not to have rested on any firm basis. In any event, his evidence was expressed in terms that suggested that, primarily because of the absence of tyre tracks, he was well less than certain as to where the collision occurred. Likewise, for the reasons given above, the Crown’s palynology evidence was inconclusive. Moreover, as I have already said, evidence of the appellant’s conduct after the collision did not advance the Crown’s case on the murder charge and Dr Perl’s opinion evidence that the deceased was unlikely to have stumbled was contradicted by the evidence of two witnesses who saw the deceased in fact staggering very close to the roadway shortly before the collision. Other matters on which the Crown relied were inconclusive for the reasons I have already given. | 117 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:118 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 124. In short, the combined weight of all the matters that the Crown relied upon does not persuade me that it proved beyond reasonable doubt that the appellant murdered the deceased. In my view, it did not exclude as a reasonable hypothesis that the appellant’s van hit the deceased on the roadway. As noted, earlier (see [66] above), it was an indispensable element of the Crown’s case as conducted at the trial that the collision occurred off the roadway. That element was not proved beyond reasonable doubt.
125. In forming my ultimate conclusion, I have not considered them in a “piecemeal fashion” (The Queen v Hillier at [48]). Rather, I have considered “the weight which is to be given to the united force of all the circumstances put together” (The Queen v Hillier at [48], quoting Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279).
126. Accordingly, leave to appeal should be granted and Ground 1 upheld. | 118 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:119 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | GROUND 2 – THE APPELLANT’S POST COLLISION CONDUCT
127. In its closing address, the Crown relied upon the appellant’s conduct after the collision as evidence that he was conscious of his guilt of murder (see [77] above). The conduct was, in summary, that the appellant did not stop after the collision, travelled to his home through back streets to avoid being seen, parked his van behind his house to hide it, left for work the next morning in an apparently normal fashion and did not report the collision until later in the day. The appellant did not object to the admission of this evidence at the trial and by his grounds of appeal does not seek to challenge that admission. Instead, on appeal, the appellant challenges the trial judge’s decision to leave the evidence to the jury as evidence of his guilt of murder. | 119 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:120 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 128. At the conclusion of the evidence at the trial, the appellant’s then counsel submitted to the trial judge that the evidence of the appellant’s conduct should not be left to the jury as evidence of “consciousness of guilt of murder, because of the clear alternate where’s there’s an alternate charge on the indictment, for which flight could be comfortably considered consciousness of guilt of that charge”.
129. His Honour rejected this submission and subsequently included the following in his summing-up to the jury: | 120 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:121 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | “Now, the matter of consciousness of guilt, and flight. You heard me mention the notion of consciousness of guilt. This matter alone cannot prove the guilt of the accused. The Crown says, however, that you can take it into account with all of the other evidence, to reach a view about the accused’s guilt. To take it into account you need to find two things. First, you must find that what the accused did relates to an issue that is relevant to the offence the Crown alleges the accused committed, that is, murder.
It must relate to some significant circumstance or event connected with the offence. Leaving the scene of a killing may be such a matter.
Secondly, you must find that the reason the accused did it is because he feared that admitting he had struck the deceased might reveal his guilt in respect of the murder charge. In other words, he feared that admitting what had happened would implicate him in the commission of the offence of murder for which he is now on trial. | 121 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:122 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | But you must remember that people do not always act rationally, and the conduct that’s been considered may sometimes be explained in other ways. A person may have a reason for not owning up, quite apart from trying to conceal their guilt. For example, it might be done out of panic, or to escape an unjust accusation, to protect some other person, or to avoid a consequence unrelated to the offence.
Now, here the accused gave evidence that he knew he was over the limit and so he would be in trouble because he had hit somebody when he was over the limit. If you think that was the reason he drove home, and said nothing until he went to the police station, after hearing from Julie Meredith, rather than because he knew he had deliberately killed someone, then you can’t use the fact that he fled the scene as consciousness of guilt on the charge of murder. If that’s what you think, you should put this concept of consciousness of guilt to one side and just focus on the other matters.” | 122 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:123 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 130. As Simpson J (as her Honour then was) said in R v Cook [2004] NSWCCA 52 at [25], “[e]vidence of flight may be admitted where the jury may legitimately infer that the flight was occasioned by consciousness in the accused person of guilt – that is, of guilt of the offence with which he/she is charged”. The conduct that the Crown relied upon in the present case was clearly capable of evidencing the appellant’s consciousness of guilt of some offence but the question is whether the consciousness is of guilt of the particular offence of murder.
131. In The Queen v Baden-Clay at [73], the High Court approved the following statement of Major J of the Supreme Court of Canada in R v White [1998] 2 SCR 72 at [27]: | 123 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:124 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | “As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact-finding role.”
132. After making that statement, Major J at [28] referred to the possibility of there being circumstances in which “it can be said that the post-offence conduct of the accused is ‘equally explained by’ or ‘equally consistent with’ two or more offences”.
133. His Honour continued at [32] as follows: | 124 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:125 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | “The result [as to whether the evidence has probative value in relation to the commission of a particular offence] will always turn on the nature of the evidence in question and its relevance to the real issue in dispute. It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused’s flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent with the offence charged.”
134. Having approved these observations, the High Court in The Queen v Baden-Clay continued at [74]: | 125 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:126 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | “There may be cases where an accused goes to such lengths to conceal the death or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused had committed an extremely serious crime and so warrant a conclusion beyond reasonable doubt as to the responsibility of the accused for the death and the concurrent existence in the accused of the intent necessary for murder. There is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter” (citations omitted).
135. The High Court’s conclusion at [76] as to the evidence in question in that case was as follows:
“It was open to the jury, in this case, to regard the lengths to which the respondent went to conceal his wife's body and to conceal his part in her demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed his wife.” | 126 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:127 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 136. In the present case, the appellant’s post-collision conduct was, to adopt an expression used in Power & Power v R (1996) 87 A Crim R 407 at 409, amongst other cases, “intractably neutral” so far as concerned his guilt of murder, as distinct from the serious alternative charge in the Indictment of driving occasioning death whilst the driver was intoxicated (s 52A(2) of the Crimes Act). The appellant’s flight and attempt to hide his involvement was equally explicable by a concern that he was guilty of some such offence as by a consciousness that he was guilty of murder. | 127 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:128 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 137. In these circumstances, I consider that the jury should have been instructed that the appellant’s post-collision conduct was incapable of demonstrating his consciousness of his guilt of murder. It was therefore erroneous for his Honour to give the Edwards-type direction in which the contrary view was implicit (Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63). (See Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 at [296]-[297].) | 128 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:129 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 138. The appellant was not called on in this Court to address in relation to the Crown’s contention that, even if error were found in accordance with Ground 2, the appeal on Ground 2 should nevertheless be dismissed, under the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW), on the basis that no substantial miscarriage of justice occurred. In these circumstances, and because the appellant’s conviction of murder should in any event be quashed by reason of his success on Ground 1, I refrain from expressing any view in relation to that contention. | 129 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:130 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | ORDERS
139. For the reasons I have given, I propose the following orders:
1. Grant leave to appeal in respect of Ground 1;
2. Allow the appeal;
3. Quash the appellant’s conviction of murder;
4. Direct the entry of an acquittal on the charge of murder, being Count 1 in the Indictment; and
5. Remit the proceedings for the re-trial of the appellant on Count 2 in the Indictment.
140. HOEBEN CJ AT CL: I have had the advantage of reading in draft the reasons of Macfarlan JA and Fagan J. As a result, I have had the benefit of their Honours’ comprehensive analysis of the evidence at trial and possible inferences to be drawn from it.
141. As a result, like Fagan J, I am unable to agree that the jury’s verdict of guilty of murder “is unreasonable or cannot be supported having regard to the evidence”. I find that it was well open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. | 130 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:131 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 142. As has been made clear in their Honours’ judgments, the Crown case was entirely circumstantial. Of necessity, there was a lack of precision in the evidence, particularly the expert evidence relating to the essential intermediate fact to be established by the Crown, i.e. that the collision occurred off the roadway on a grassed strip to the left of the vehicle being driven by the appellant.
143. Of necessity, evidence of that kind requires careful scrutiny by the jury, not only as to its context but how that evidence was given. In that regard, as Fagan J has explained, the jury was in a far better position to assess the evidence than is this Court. | 131 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:132 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 144. This is particularly so in relation to the evidence given by the appellant. That is not to say that the rejection of the appellant’s evidence should necessarily have resulted in a guilty verdict. On the contrary, the Crown at all times carried the burden of establishing the elements of the offence and the essential intermediate fact beyond reasonable doubt. Nevertheless, the evidence of the appellant was important in that it constituted the primary source of the hypothesis consistent with innocence upon which the appellant’s defence was based. As indicated, the jury were in a far better position than this Court to assess that evidence. | 132 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:133 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 145. Although there was a clear difference of opinion in the expert evidence, the respective challenges to that evidence at trial did not reveal one set of theories to be clearly established and the competing set unsustainable. There was considerable scope for the jury to accept some evidence and reject other by their own modes of reasoning so as to be ultimately satisfied beyond reasonable doubt as to the appellant’s guilt. | 133 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:134 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 146. By way of illustration, the absence of any tyre tracks on the grassed area was strongly argued by the defence to have the effect of discrediting much of the evidence of Mr George. The jury, however, would have been well aware of the controversy and the directly conflicting opinions of Mr George and Mr Booth. What needs to be remembered, however, is that the jury had the benefit of a view of the accident site which would enable them to bring a dimension of knowledge to that issue that this Court does not have. On my reading of the evidence concerning the presence, or otherwise, of tyre tracks at that location and for the reasons set out by Fagan J, it was well open to the jury to be satisfied that in the absence of some sudden swerving manoeuvre, tyre tracks would not necessarily have been left on the grass.
147. As both their Honours have made clear, and as was reaffirmed in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35: | 134 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:135 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | “65 It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.” Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. …” | 135 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:136 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 148. To say anything further about the evidence which has been so fully covered by their Honours would be repetitious and unhelpful. It is sufficient that I express my conclusion that on reading the whole of the evidence, including viewing the CCTV compilation, it was well open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant. It follows that the appellant has failed to make out Ground of Appeal 1 and that this Ground of Appeal should be dismissed.
149. In relation to Ground of Appeal 2, I agree with their Honours that there was no rational basis upon which the jury could ascribe his flight following the collision to a sense of guilt with respect to the elements of murder, as distinct from guilt at having caused grievous bodily harm or death by his driving. Accordingly, I agree with the orders proposed by their Honours in relation to Ground 2.
150. Accordingly, I agree with the orders proposed by Fagan J. | 136 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:137 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 151. FAGAN J: I have had the advantage of reading in draft the reasons of Macfarlan JA and I gratefully adopt his Honour’s summary of how the Crown’s case was presented at trial (at [2]-[5] and [65]-[78]). I am unable to agree that the jury’s verdict of guilty of murder “is unreasonable, or cannot be supported, having regard to the evidence”, in the words of s 6(1) of the Criminal Appeal Act 1900 (NSW). I would therefore reject ground 1. Ground 2 concerns whether the appellant’s departure from the scene of the collision should have been left to the jury as evidence of consciousness of guilt. I will defer consideration of that ground to the latter part of this judgment, after stating why I consider the jury’s verdict was reasonable and supportable by reference to the whole of the evidence apart from that concerning the appellant’s flight. | 137 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:138 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | Ground 1 - whether the verdict of guilty was unreasonable
152. The appellant did not dispute that his van had struck Nicholas McEvoy and killed him. As Macfarlan JA has noted (at [65]-[66]) the trial was conducted on the basis that the second element of the charge of murder (namely, causation of death by a willed act of the appellant) depended upon whether the Crown had proved beyond reasonable doubt that the collision occurred off the roadway on a grassed strip to the left. The roadway was approximately 7.7 m wide in the vicinity of the collision, measured from a concrete kerb at the left to a median strip at the right. It was divided into two lanes being the eastbound lanes of Richmond Road, the left or kerb-side lane being 3.3 m wide and the second lane being 3.4 m wide. | 138 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:139 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 153. The road was of concrete construction. At the left-hand edge, from about 300 mm out from the kerb, the concrete surface was inclined downwards towards the left at an angle slightly greater than the camber of the driving surface. This formed a gutter against the up-stand of the kerb. The kerb was about 100 mm high and its horizontal top surface was about 100 mm wide. Adjacent to the roadway on its left hand or north side there was a level grassed strip about 5 m wide (measured from the kerb). At the left hand margin of this strip, furthest from the road, the grassed surface dropped away down a slight embankment. | 139 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:140 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 154. In the way the trial was run, not only the second element of the charge of murder but also the third, namely, intent to kill or to cause grievous bodily harm, depended upon whether the Crown had proved beyond reasonable doubt that the collision occurred off the roadway and on the grassed strip. That is, those elements turned upon whether the collision occurred as a result of the passenger-side wheels of the appellant’s van having mounted the kerb so that the vehicle straddled the kerb and proceeded with two wheels on the level grassed strip, the front left of the vehicle then striking Mr McEvoy whilst he was walking on that strip.
155. The Crown did not call any eyewitness to the collision. It presented a wholly circumstantial case that the collision had occurred off the roadway as described above. The circumstantial case included evidence of the following: | 140 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:141 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 1. motive, being the appellant’s alleged animosity towards Mr McEvoy as a result of an encounter in the nearby Plumpton Hotel within about 45 minutes before the collision, and the opportunity for the appellant to have recognised and targeted him as he walked on the grassed strip;
2. the location, nature and extent of injuries to the deceased and of damage to the front left of the appellant’s van;
3. the post-collision position of Mr McEvoy’s body, collision debris and surface marks;
4. the degree of intoxication of the deceased, bearing upon the possibility of him having staggered onto the roadway;
5. the degree of intoxication of the appellant, bearing upon his capacity to have manoeuvred his van partly onto the kerb and grassed strip and then back fully onto the roadway and
6. results of palynology examination of the appellant’s van. | 141 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:142 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 156. The jury, of course, could only find beyond reasonable doubt that the collision occurred off the roadway (as a necessary link in a chain of reasoning to find that the collision was the result of willed act by the accused accompanied by intent to cause death or grievous bodily harm) if they were able to exclude all reasonable hypotheses consistent with innocence. The only hypothesis advanced through the appellant’s oral evidence was that Mr McEvoy staggered onto the roadway into the path of his vehicle whilst it was travelling in the kerb-side lane, leaving him insufficient reaction time to swerve or brake, so that the ensuing fatal collision was neither willed nor accompanied by the necessary intent. His evidence in chief as to this included the following: | 142 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:143 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | About, I don’t know, 3 or 400 metres away [meaning, apparently, east from where he had entered Richmond Road at the Dublin Street intersection] someone stepped out and I collided with the person. Then I panicked and went to the next intersection and drove home.
I think it was somewhere between Symonds Road and Quakers Hill Parkway. I’m not exactly sure where it was.
It happened quickly. I didn’t have any time to react. Someone has just stepped out. My reflexes obviously weren’t quick enough to move. | 143 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:144 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 157. For the purpose of applying the principles upon which this Court must decide whether the verdict is unreasonable or unsupportable (referred to by Macfarlan JA at [79] and [80]) the evidence as a whole must be considered. I find that evaluation of the evidence in this case is assisted by considering it, first, in the six areas identified at [155] above. My consideration of each area takes into account some of the challenges made in cross-examination by the accused, contrary evidence adduced by him and lines of reasoning and inference which were available to the jury. The summaries of oral evidence below include answers given in cross-examination and identify material points which were disputed. Having reviewed the evidence in these convenient categories I will consider it as a whole as required by the authorities. | 144 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:145 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | The location of the collision
158. Along the relevant section of Richmond Road the two eastbound lanes are separated from the westbound lanes by a median strip. When travelling from west to east the Plumpton Hotel is on the right, that is, on the south side of Richmond Road, set well back from the road behind a nature strip and an open-air car park. The main pedestrian entrance from the car park into the hotel is through a pair of high steel gates on the north side of the building, facing the car park and across it towards Richmond Road. Dublin Street runs north-south and joins Richmond Road just to the west of the Plumpton Hotel car park. Vehicle entry to the car park is off Dublin Street rather than directly off Richmond Road. | 145 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:146 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 159. From the perspective of travel from west to east on Richmond Road, Symonds Road joins to the left, or north, approximately 50 m past the Plumpton Hotel and its car park. Continuing in an easterly direction the next intersection with Richmond Road is Quakers Hill Parkway, on the left. This intersecting road crosses Richmond Road at right angles. To the south of the intersection it is known as Knox Road. The collision between the appellant’s van and the deceased occurred a little over halfway from the Symonds Road intersection to the Quakers Hill Parkway intersection. The distance walked by Mr McEvoy from the Plumpton Hotel across the car park, across Richmond Road to its north side and then east along the footpath beside the eastbound lanes to the point of collision was approximately 700 m, measured by the scale on an aerial photograph (Exhibit B). | 146 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:147 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 160. Mr McEvoy was struck by the appellant’s van shortly after midnight, within the first minutes of Friday, 21 February 2014. His body was first seen lying on the grassed strip by Ms Davies and then by Ms Layoun, two passing motorists. Ms Davies left her workplace, which was about 10 minutes’ drive away, at approximately 12:10 am and saw the deceased’s legs as she passed. Ms Layoun drove past shortly before 12:27 am, at which time she made a triple zero emergency call upon seeing the body. | 147 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:148 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | (1) Motive
161. According to unchallenged evidence given by his brother, Mr McEvoy left the brother’s home in Dean Park, a suburb on the north side of Richmond Road across from the Plumpton Hotel, about 10:30 pm on Thursday 20 February 2014. He was wearing black running shoes, shorts and a T-shirt. He was carrying five or six cans of Carlton Dry beer in a black plastic bag. | 148 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:149 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 162. The appellant was at the Plumpton Hotel from about 2:00 pm on 20 February 2014 until about midnight. Mr Wetere was on duty there as the security guard from 6:00 pm. He knew the appellant, whom he had seen at the hotel approximately twice per week over the previous two years. The appellant played pool with various people during the evening. At about 11:00 pm Mr Wetere saw Mr McEvoy enter through the hotel’s main front doors, which were just inside the front steel gates from the car park. At that time the appellant was playing pool with a Mr Henshaw, known to all as “Chicken”. Mr Wetere had seen Mr McEvoy at the hotel on prior occasions. | 149 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:150 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 163. According to Mr Wetere the deceased commenced to speak with Mr Henshaw whilst the latter was playing pool with the appellant and to encourage Mr Henshaw loudly and congratulate him on his shots. On Mr Henshaw’s evidence this went on through three games played by him against the appellant. Mr McEvoy became louder over time, cheering Mr Henshaw and “high-fiving” him. Mr Wetere told Mr McEvoy to settle down but he did not. The appellant told Mr McEvoy that he should let the appellant and Mr Henshaw “play their own game”. Mr Henshaw heard the appellant tell Mr McEvoy to “piss off”. Mr McEvoy stood back and watched for a time after this but when Mr Henshaw won a game Mr McEvoy “jumped up and screamed, congratulated him” and “got really excited”. He acted in a loud manner and “hugged or lifted” Mr Henshaw. | 150 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:151 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 164. Mr Wetere observed that “it looked like [the appellant] did not like what he saw”. He stood in a corner and watched Mr McEvoy “yelling and carrying on”. Mr Wetere concluded from Mr McEvoy’s behaviour that he was “intoxicated or under the influence of something” and therefore told him “you’ve got to go”. The hotel’s closed circuit television (“CCTV”) recorded Mr Wetere walking forcefully towards Mr McEvoy to direct him away from the pool area and towards the front doors. Mr Wetere is a large man. Mr McEvoy walked backwards away from him without any sign of resistance. He backed away out into the car park near the front gates. Mr Wetere said this was “around 11:30-ish”. | 151 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:152 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 165. Immediately outside the gates Mr Wetere was facing out toward the car park with Mr McEvoy facing back towards him and “asking why”. Mr Wetere then heard someone say “go home” and turned to find that the appellant had followed and was close behind. Mr McEvoy and the appellant then “exchanged words” which “weren’t friendly” but Mr Wetere did not recall exactly what was said. The appellant stepped toward Mr McEvoy aggressively and swung a punch at him, which did not connect. This was captured on CCTV footage from a security camera near the front entrance. All three men were within about a metre of each other at this time. Mr McEvoy reacted quickly to the punch thrown in his direction, putting his hands up defensively and stepping back while the appellant shaped up to him with his fists raised in a fighting stance. Mr Wetere immediately moved in and briskly pushed Mr McEvoy out into the car park. Mr Wetere continued talking to him “to take the focus off [the appellant]”. | 152 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:153 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 166. Another witness, Mr Rigney, said that as Mr McEvoy walked back away from the hotel out into the car park shepherded by Mr Wetere, Mr McEvoy and the appellant exchanged taunts. Mr McEvoy kept moving off in a north-easterly direction diagonally across the car park towards Richmond Road, with Mr Wetere facing him and taking some steps in his direction from time to time to keep him moving. | 153 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:154 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 167. Exhibit L was a compilation of CCTV footage from the Plumpton Hotel’s security cameras. Of two cameras near the front entrance, one showed a north-westerly view close to the gates. This view took in the appellant’s van parked right next to the gates. The other camera showed a north-easterly view across the car park. It covered Mr McEvoy’s retreat from the hotel toward Richmond Road. Over the course of a minute and a half from when the punch was thrown Mr McEvoy is seen to back away from Mr Wetere, increasing his distance and eventually passing through a gap in a low hedge which divided the car park. During this sequence Mr McEvoy at times hesitated and gestured towards Mr Wetere but when the latter advanced upon him again Mr McEvoy continued on his way. | 154 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:155 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 168. For about 30 seconds after the punch was thrown the appellant disappeared from view, apparently having gone back inside the hotel. Then he re-emerged and over the next minute the appellant is seen to walk out into the car park to the left (or west) of the route along which Mr Wetere was shepherding Mr McEvoy. He is seen to watch closely the movements of Mr McEvoy until the latter passed through the gap in the hedge. Over this period the appellant repeatedly locked and unlocked his van using a remote control. He walked back and forth behind his van, out into the car park and back again, observing Mr McEvoy all the while. | 155 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:156 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 169. Mr Wetere returned from the car park and went in through the front doors of the hotel after having seen Mr McEvoy pass through the gap in the hedge. As he did so, two minutes after the appellant had thrown his punch, the appellant was still near his van at the front gates, watching. Mr Wetere told him “you’re going home”. The appellant continued to look in the direction in which Mr McEvoy had departed for another minute and a half after Mr Wetere returned inside the hotel, apart from a brief period when the appellant disappeared from the camera’s view and apparently went inside himself. About two minutes after Mr McEvoy had passed through the gap in the hedge the appellant drove away. Other cameras recorded his van being driven out of the car park onto Dublin Street and turning right on that street towards Richmond Road. Having regard to the delay before he collided with Mr McEvoy, the appellant must have stopped and waited or made some other diversion before heading east on Richmond Road. | 156 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:157 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 170. It was open to the jury to assess the appellant in the period after he had swung a punch at Mr McEvoy as agitated and preoccupied with him. At the end of the cross-examination of Mr Wetere he was shown a portion of Exhibit L which showed Mr McEvoy walking through the gap in the hedge. At this time Mr Wetere was 40 or 50 m back towards the hotel. The appellant had walked out into the car park and was 20 or 30 m to the west of Mr Wetere. When Mr McEvoy continued moving away in a north-easterly direction Mr Wetere turned back toward the hotel entrance and the appellant did likewise. Having been shown that sequence Mr Wetere gave these answers in cross-examination:
Q It’s all over at this stage, isn’t it?
A Yes.
Q As far as you’re concerned, [the deceased] has gone?
A Yes.
Q [The appellant], to you, was not showing any signs of aggression?
A No.
Q And, in fact, when you come back you think the whole incident is finished?
A Yes. | 157 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:158 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 171. Mr Rigney answered this question in cross-examination:
Q By the time [the appellant] comes back [to close to the front of the hotel], it’s all over?
A Yeah.
172. Mr Loveridge, another witness to events at the front of the hotel, was also out in the car park when Mr McEvoy passed through the gap in the hedge. He gave these answers in cross-examination:
Q And by the time you are coming back [to close to the front of the hotel], [the deceased has] gone?
A Yep.
Q And as far as you are concerned it’s done?
A It’s all over, yeah, it’s gone. | 158 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:159 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 173. The appellant’s evidence was that “It was just a small altercation that did not mean much to me at the time”. He said he could not recall why he threw a punch at Mr McEvoy and that it must have been provoked by something said although he could not recall what this might have been. He said he was “assuming he must have said something to me for me to react that way”. He claimed that he was not annoyed by Mr McEvoy having cheered on Mr Henshaw during the pool game and said he was unaware of Mr McEvoy hugging Mr Henshaw at the end of the game. By reference to the CCTV footage he agreed that he had gone back into the hotel after swinging a punch at Mr McEvoy but claimed not to have any memory of returning to the car park to watch Mr McEvoy’s departure. | 159 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:160 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 174. It was well open the jury to reject the appellant’s evidence and to find that at the time of Mr McEvoy’s departure across the car park and through the gap in the hedge, sometime shortly before midnight, the appellant continued to be in a state of heightened anger towards him. It was open to the jury to regard the opinions of Messrs Wetere, Rigney and Loveridge that “it’s all over” as the perceptions of calmer individuals but as not accurately describing the appellant’s own subjective state of agitation and hostility. The CCTV footage placed the jury in a position to make their own assessment of whether the appellant had put the confrontation behind him, on the basis of direct observation of his actions and manner. | 160 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:161 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 175. If the jury found that the appellant had an ongoing animosity to Mr McEvoy after the latter had walked into the distance then it was open to them to treat that as of considerable significance. They might permissibly conclude that his lasting anger in reaction to trivial annoyance from an over-exuberant, disinhibited younger patron of the hotel was disproportionate. It would be open to them to infer that this might carry over into disproportionate retribution, such as deliberately running into Mr McEvoy when the opportunity presented itself shortly afterwards.
176. The appellant gave evidence that at the time of colliding with a pedestrian on Richmond Road he did not even know that the person he had hit was the young man who had offended him at the Plumpton Hotel. He claimed not to have learned this until a few days later when he was told by a close friend, Ms Meredith. He said he was “devastated”, “gutted” and “in shock” when he learned this. In cross-examination he gave this answer: | 161 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:162 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | Q You didn’t see the person until they stepped out?
A A couple of seconds before, yeah, a couple of metres.
In a signed statement to police made on 21 February 2014 (Exhibit KK) the appellant said that he saw the pedestrian approximately 15 m ahead of his van, looking away from him, and that when he was 2 metres from this person he “stepped to [his] right onto the roadway” and “hit the front nearside of my van”. | 162 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:163 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 177. Ms Meredith gave evidence that on 21 February 2014 she learned police had been making enquiries at the Plumpton Hotel and were looking for the appellant. She phoned him, they arranged to meet and she received from the appellant during the afternoon an account of what had occurred when he was driving his van in the very early hours of that morning. Ms Meredith took the appellant to the police station later that day. In cross-examination she said that two days or more later she learned that the appellant had had an argument with Mr McEvoy late in the evening before the collision, a fact of which the appellant had not told her. She repeated this to the appellant and, according to her evidence in cross-examination, the appellant “went white and he did not really say much”. He had a “blank look” on his face. Ms Meredith said she “got the impression” the appellant had not until then known that the person he struck was the person he had had an argument with. | 163 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:164 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 178. It was open to the jury not to accept the appellant’s evidence that he did not see the pedestrian until he was within 15 m (or 2 m) and that he did not know the identity of the person he struck. It was open to them not to accept that he had in fact been surprised when Ms Meredith told him who the victim was some days after the accident. The CCTV recording of Mr McEvoy in and around the hotel on the night in question shows that he was the only person in the bar in shorts and that they were quite distinctive, being black with white trim around the hem, at the level of his lower thigh. In the CCTV footage of Mr McEvoy’s retreat across the car park and his movement through the nature strip towards Richmond Road the white hem, contrasting with the other material of the shorts, appears quite highly visible. | 164 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:165 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 179. It was open to the jury to conclude that as the appellant drove eastward on Richmond Road in the kerbside lane a single male pedestrian walking along the grassed strip within about a metre of the kerb would have been as plainly visible to the appellant as he was to Mr Jarman and Ms Boucher (see [227]-[228] below). It is not as if there was a crowd leaving the Plumpton Hotel at midnight and heading in a north-easterly direction toward Richmond Road. The CCTV footage shows Mr McEvoy was the only one. The jury could infer that when the appellant saw a pedestrian walking beside Richmond Road he would have expected it to be Mr McEvoy at that location. They could infer that the appellant would have recognised the man in shorts with the visible white hem as the same person he had seen for an extended duration in the hotel over the previous hour and whose movements away from the hotel towards Richmond Road he had watched closely over about three minutes. Photographs in evidence showed that the area had street | 165 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:166 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | lighting. Ms Boucher observed the white pattern on Mr McEvoy’s shorts as she drove past him, walking. | 166 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:167 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 180. The jury could reasonably and logically attach significant weight to the evidence of motive as supporting the inference that the appellant deliberately drove partly onto the grassed strip in order to collide with Mr McEvoy. On appeal it was submitted the jury could not soundly conclude that the appellant left the hotel when he did in order to catch up to Mr McEvoy on the road, or that he had the intention of running him down when he drove out of the car park or that he turned right from Dublin Street onto Richmond Road in order to execute such a purpose already formed by that time. | 167 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:168 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 181. It is not necessary to deal with those submissions individually. The contribution of motive to the inference of guilt did not depend upon the jury finding any of those additional facts. It was logically and reasonably open to them to treat the appellant’s animosity to Mr McEvoy as a strong circumstance even if they did not infer that the intent to cause harm had been formed when the appellant left the hotel or as he turned right onto Richmond Road. They could well treat motive as having significant weight if they inferred no more than that, as the appellant’s vehicle approached Mr McEvoy, the appellant recognised him as the young man who had annoyed him at the hotel and seized the opportunity to harm him as it presented itself. | 168 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:169 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 182. In determining whether it was a reasonable possibility that, as the appellant described, Mr McEvoy stepped onto the road in front of the van, the jury were entitled to give weight to the appellant’s motive for harming Mr McEvoy, if they found such motive. They were entitled to ask themselves whether it was a reasonable possibility that Mr McEvoy walked this distance from the hotel and then stepped out not in front of just any oncoming vehicle but in front of one driven by the very person who minutes earlier, 700 m away, had been angry enough to try to punch him. | 169 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:170 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | (2) Injuries to the deceased, damage to the appellant’s van
183. Dr Brouwer carried out a post-mortem examination of the body of the deceased on 24 February 2014. Her principal findings may be summarised as follows:
1. There were spinal fractures with dislocation at the joint between the base of the skull and the top of the spinal column and at vertebrae C2, C4, T5 and T6.
2. Mr McEvoy had suffered diffuse axonal injury to his brain.
3. All but two of Mr McEvoy’s left ribs were fractured at the back of the chest, some with dislocation. On the right side only the sixth rib was fractured, at the back.
4. The left lung was bruised at the back, adjacent to the spine.
5. The back part of the diaphragm was lacerated at the right.
6. There was bleeding around the kidneys, situated toward the back and just below the rib cage. | 170 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:171 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 7. There were external injuries to the back of Mr McEvoy’s head in the left and right occipital region and to the right rear of his neck, these injuries exhibiting scratch marks consistent with impact against a shattered windscreen.
8. There were skin abrasions at multiple sites over Mr McEvoy’s body.
9. Soil or mud staining was located mostly to the right side of the body, particularly the right hip, right forearm (front and back) and in the vicinity of the right knee, right ankle and right heel.
10. No injuries were observed which would have been caused by contact of Mr McEvoy with the road surface.
184. Dr Brouwer had reviewed photographs of the damage to the front left of the appellant’s van. She expressed this opinion: | 171 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:172 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | There was substantial damage to the front of the vehicle towards the passenger side, and also the [external] rear-view mirror on the left side was absent. From the autopsy examination and the anatomical distribution of the injuries, it appears that the impact was to the back of the body. There was substantial damage to the front of the vehicle, indicating that the majority of those injuries were most likely caused by the impact with the vehicle, with the back of the body impacting with the front of the vehicle. | 172 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:173 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 185. Dr Brouwer said that such an impact was capable of causing the fractures and dislocations of the cervical spine which she had found. She expressed the opinion that when struck Mr McEvoy “would have been facing away from the vehicle”. In cross-examination she agreed that the injuries could have been caused by the vehicle striking Mr McEvoy when travelling at 50 or 60 km/h. She accepted that such a collision is “not a static process” and that there would be movement of the body after the impact. Because of the number of rib fractures on the left “it appears that the impact was more focused on the left side of the back of the body” and that that might have occurred because the left-hand side external mirror may have struck the left side of Mr McEvoy. Dr Brouwer accepted that Mr McEvoy might have been turned slightly to the left or right at impact. | 173 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:174 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 186. Whether Mr McEvoy was struck from behind or on one side had a bearing upon the credibility of the appellant’s evidence that Mr McEvoy “stepped out” into the path of the appellant’s van. In cross-examination the appellant said:
I think I hit him on his side when he stepped out in front of me, had to be on his side or somewhere near it.
On the road he was either side-on or he turned or something to that similar effect.
187. The appellant was reminded that in his statement to police (quoted at [176] above) he had said the pedestrian was facing away from the oncoming van. He then gave these answers:
Q When the person stepped to their right on the roadway, are you saying that the person did so by, as it were, stepping completely sideways?
A I’m not hundred percent sure. I don’t know whether it was a deliberate step or stumbling, I wouldn’t know.
Q But are you saying that the person stepped to the side rather than turned to step onto the roadway?
A I’m not sure. | 174 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:175 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 188. The appellant said he was not driving with his left wheel in the gutter. The nearside of his van must therefore have been no less than 300 mm out from the kerb. There was evidence that the van was 1.75-1.8 m wide. At 1.8 m, if the appellant drove in the middle of the left lane (as he said was his practice) the van’s nearside would have been 750 mm out from the kerb. Mr George and Mr Booth gave varying estimates of the width of impact damage from the nearside across the front of the van. Their estimates of this width were in the order of 300 mm. It was a matter for the jury to assess Dr Brouwer’s evidence and the credibility of the appellant’s account. If they accepted that Mr McEvoy’s injuries indicated he had been struck from behind or possibly when turned slightly to the left or right, it was for them to determine whether this militated against a reasonable possibility that he had “stepped out” or stumbled onto the roadway far enough to collide with the vehicle as indicated by the damage to it. It was | 175 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:176 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | for them to judge whether it was reasonably possible that Mr McEvoy may have moved quickly, not giving the appellant any warning, into a position on the road where he would be struck from behind or from slightly to his left or right. Taking together all the circumstances of the case it was well open to them to find that this was not a reasonable possibility. | 176 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:177 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 189. The damage to the van was the subject of photographs in Exhibit M taken on the evening of 21 February 2014 when the vehicle was located at the appellant’s residence. In profile the front of the van was vertical to a height slightly below the level of the windscreen. The windscreen sloped back from there at about 45º. The left half of the windscreen was shattered but still in place, with only a few square centimetres of glass missing at the far left at approximately head height. Human hair was attached to the glass at this point, consistent with Mr McEvoy’s head having been struck there. Below the lower edge of the windscreen the front left corner of the vehicle was impacted. The headlight recess in this location was heavily distorted. The headlight unit with most of its clear plastic cover was hanging by its wiring. The clear plastic cover was cracked and some plastic was missing. The indicator globe was missing. The black plastic external rear-vision mirror, which would have been mounted on the left | 177 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:178 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | side of the vehicle at about the level of the bottom of the windscreen, was missing. | 178 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:179 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 190. This uncontested evidence of the vehicle damage was significant in two respects. First, both Mr George and Mr Booth drew conclusions from the vehicle damage as to the way Mr McEvoy’s body would have been thrown. Secondly, missing items from the damaged vehicle could be correlated with debris found in the vicinity of the impact. Both of these matters were relevant to the inference the Crown asked the jury to draw as to where the collision took place. | 179 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:180 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | (3) Position of Mr McEvoy’s body, collision debris and surface marks | 180 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:181 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 191. When Mr McEvoy’s body was first observed by passing motorists (Ms Davies, Ms Layoun, Mr Hill, Mr Taylor) it was lying at the base of the left-hand support pole of a road sign. The sign was erected on the grassed strip and was fixed at an angle of about 70º to the road alignment. It was marked “Nurragingy Reserve”. The right-hand support pole was less than half a metre back from the kerb and the left-hand pole was 2 m back. Investigators identified blood on the grass in the vicinity of where the deceased’s head lay, slightly over 2 m from the kerb and about 1 m north-east of the left-hand support pole. Witnesses described Mr McEvoy’s body as lying with his head away from the road and his feet closer, within about 1 m of the kerb. He was lying on his back. There was some variance in the witnesses’ recollections as to whether his body was to any extent in contact with, or leaning against, the left-hand support pole of the sign. It was open to the jury to treat this minor controversy as not significant to | 181 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:182 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | their ultimate inference about where the collision took place. | 182 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:183 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 192. There was a road sign notifying motorists of police operations at a point 37.5 m to the west of the Nurragingy Reserve sign. This also had two support poles, the nearest to the road being set 2 m back from the kerb as measured by the scale on the police survey diagram (Exhibit D).
193. When Mr McEvoy’s body was found he was still holding a black plastic bag which was empty. Leading Senior Constable Foster examined the scene from 1:30 am on 21 February 2014 and assisted another officer to make the survey which identified the following items and their relative positions (the distances given are as scaled off Exhibit D):
1. 18.6 m west of Mr McEvoy’s body and 1 m back from the kerb (marker C): one full can of Carlton Dry beer and one half-full can, lying together. | 183 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:184 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 2. 16.5 m west of the body and 1.2 m back from the kerb (marker E): the main body of the left-hand side external rear-vision mirror of the van. This included an electric motor for adjustment of the mirror angle and the reflective mirror surface, still intact.
3. 15 m west of the body and about 100 mm back from the kerb (marker F): a piece of the clear plastic headlight cover from the left-hand side of the van.
4. 13.5 m west of the body and about 500 mm back from the kerb (marker G): a broken piece of black plastic from the left-hand side external rear-vision mirror.
5. About 11 m west of the body and 700 mm back from the kerb (marker H): a furrow about 800 mm long and 300 mm wide where the grass had been erased from the surface exposing bare dirt.
6. 5 m west of the body and 100 mm back from the kerb (marker L): a broken piece of black plastic from the left-hand external rear-vision mirror of the van. | 184 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:185 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 194. The following items were found in the gutter at or close to the base of the 100 mm vertical face of the kerb:
1. 10 m west of the body (marker I): a piece of black plastic from the external side mirror.
2. Between 5 and 7 m west of the body (markers J, K and M): further fragments of black plastic from the external side mirror and the vehicle’s orange left indicator globe.
3. Approximately 5.5 m east of the body at the edge of the gutter furthest from the kerb (about 300 mm out from the kerb, marker Q): Mr McEvoy’s right shoe.
195. There were two more full beer cans at the scene, one at the edge of the embankment at the far side of the grassed strip and one over the embankment. The positions of these items were not marked on the police survey. | 185 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:186 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | Dispute over location of mirror and inference from heavy items
196. With respect to the rear-vision mirror there was an issue at trial whether it had come to rest after the collision at the position described at [193(2)] or whether it had been moved there. The Crown’s crash investigation expert, Mr George, gave evidence that soil was adhering to the anchorage bolt of the mirror by which it had been attached to the vehicle. He said there were scuff marks on the forward side of the plastic casing consistent with contact with Mr McEvoy’s clothing upon impact with his upper body but no coarse road pavement abrasions. LSC Foster also said the mirror did not exhibit any marks to indicate that it had fallen on the abrasive surface of the road and bounced over the kerb onto the grass. She said if it fell on the road and bounced she would expect to see scratches on the plastic casing, as well as broken glass. | 186 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:187 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 197. Mr George and LSC Foster said these features made it likely the mirror had fallen on the grass strip where police found it. On the other hand Mr Booth, an accident reconstruction expert called by the appellant, was of the opinion the road surface was “relatively smooth, and all the large aggregate (which is river stone) was all exposed and very slippery and shiny”. He said this surface would not necessarily have marked the black plastic casing of the mirror if it fell onto the roadway. It does not appear Mr Booth was questioned as to how this evidence was to be reconciled with his opinion that “coarse and irregular” grains of sand were embedded in the concrete surface, with portions “projecting out of it” which would have “sliced through” the surface of the soles of Mr McEvoy’s shoes. | 187 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:188 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 198. Ms Layoun gave evidence that when she first stopped at the scene prior to the ambulance officers and police attending there was a rear-vision mirror in the lane furthest from the left-hand kerb. She said this was “a side mirror of a car and it was white”. She was not “100% sure” that the mirror was white. Upon being shown a photo of the van’s black side mirror on the grass strip and asked whether this was what she saw. Ms Layoun gave this answer:
It could possibly be, I just can’t remember the colour exactly. I was pregnant and it was dark and a bit of a baby brain, but, yes, that looks like what I would have seen, yep. | 188 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:189 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 199. Ms Layoun was cross-examined on a statement she made to police in March 2014. She agreed that she there said the mirror “had black on one of the sides”. She had made her observations without getting out of her car, which she had parked adjacent to Mr McEvoy’s body. Ms Layoun was at the scene for a total of about 40 minutes. During this time she had moved her car forward a few metres and then got out of it when asked to do so by police. Ms Layoun said she did not see anyone move anything at the scene in the time she was there. | 189 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:190 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 200. None of the other witnesses at the scene at the same time as Ms Layoun saw a rear-vision mirror of any colour on any part of the roadway. Two of these witnesses were Messrs Hill and Taylor, who stopped in front of Ms Layoun’s car while she was on the phone calling an ambulance. They got out of their vehicle. They remained at the location until after ambulance personnel arrived and police took control of the scene. Mr Taylor saw the furrow in the ground (see [193(5)] above), the rear vision mirror (which he noted still had its glass intact) and the two cans of beer slightly further to the west (see [193(1)] above). He pointed these things out to the attending police before moving further away from the scene at their direction. Neither Mr Hill nor Mr Taylor nor any of the attending police saw anybody move any item at the scene. | 190 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:191 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 201. Ms Davies stopped at the scene briefly before Ms Layoun arrived, then drove off to make a report at Quakers Hill police station. When she first stopped Ms Davies saw Mr McEvoy’s shoe in the gutter ahead of her car. She gave no evidence of having seen anything else. After going to the police station she returned to the scene by which time Ms Layoun (in her car) and Messrs Hill and Taylor were there but the paramedics and police had not yet arrived. Ms Davies did not see a mirror on the road at this time. She first saw the mirror by the light of police torches. She said it was “sort of near where we were standing” but she did not “exactly remember where it was”. She did not see anybody move anything. | 191 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:192 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 202. In closing address the Crown invited the jury to treat Ms Layoun’s evidence about a mirror in the second lane as unreliable. It was certainly open to them to accept that invitation. They would have been entitled to find that the mirror came to rest after the collision on the grassed strip about 16.5 m to the west of Mr McEvoy’s body and about 1.2 m back from the kerb (see [193(2)]). It was open to the jury to accept the evidence of LSC Foster and Mr George about the presence of dirt on the anchor bolt and the absence of rough abrasions on the mirror casing. It was open to them to reject Mr Booth’s opinion that the mirror might have come off the left side of the van at a point of impact within lane 1 and bounced over or under the van to its right, coming to rest in lane 2 where Ms Layoun recalled seeing a mirror. It was open to them to rely upon the observations of the witnesses Hill, Taylor and Davies to exclude that the mirror came to rest on the roadway and was subsequently moved to the grass. | 192 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:193 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 203. Mr George gave this evidence:
The broken rear-view mirror, that’s been impacted by, most likely, the left shoulder or arm of the pedestrian. When that breaks, that’s going to fall to the ground and it hasn’t or doesn’t appear to have hit the sealed pavement but it has impacted with the muddy grass surface because it’s dug in and there is that material adhered to it.
204. Mr George said that although the anchor bolt had dug into the ground it had not remained dug in, indicating that the mirror had tumbled “some unknown distance, but I’d say relatively short distance”. Thus he considered the collision point would have been some relatively short distance further away from the body than 16.5 m (where the mirror was found). To similar effect LSC Foster said: | 193 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:194 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | [I]t was a power-assisted mirror, it was quite heavy in comparison to your other mirrors that aren’t power-assisted. … [I]n my experience … when these pieces of physical evidence fall from a vehicle they tend to, because of their weight, fall in close proximity to where they come off … .
205. Mr George also said:
[V]ehicle/pedestrian crash research demonstrate[s] fairly consistently that loose items … that might be held or on a pedestrian such as shopping bags, glasses, hats, they can be knocked off and land very close to where the impact occurs. So based on that theory, if the beer cans were being carried by the deceased, then they would be a good indicator as to the proximity of the crash. | 194 |
nsw_caselaw:5c0dc4d1e4b0851fd68d038b:195 | nsw_caselaw:5c0dc4d1e4b0851fd68d038b | decision | new_south_wales | nsw_caselaw | text/html | 2018-12-14 00:00:00 | Meakin v R [2018] NSWCCA 288 | https://www.caselaw.nsw.gov.au/decision/5c0dc4d1e4b0851fd68d038b | 2024-05-26T11:20:32.010653+10:00 | 206. Mr George was of the opinion that, upon the mirror being broken off at impact, smaller and lighter parts of the black plastic casing could be scattered further forward of where the main part landed. On the other hand Mr Booth thought the heavier part of the mirror would likely have been cast further forward from the vehicle than the lighter broken fragments. That opinion was clearly premised on all parts of the mirror having broken free of the vehicle at the same time. This was part of Mr Booth’s basis for his opinion that the mirror had not fallen to the location where it was recorded by police but had fallen on the roadway and had subsequently been picked up and moved onto the grass. It was open to the jury to reject that proposition. | 195 |