R v Franks [2020] NSWDC 531

District Court New South Wales

Medium Neutral Citation: R v Franks [2020] NSWDC 531 Hearing dates: 05 August 2020 – 07 August 2020 Date of orders: 17 August 2020 Decision date: 17 August 2020 Jurisdiction: Criminal Before: Grant DCJ Decision: The accused is found not guilty on all counts. Catchwords: Criminal law – Judge alone trial - Crimes Act 1900 s 52A(2) - driving offences - alcohol present while driving - impact occasioning death - consideration of Crimes Act 1900 section 52A(8) defence Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Cases Cited: R v Thai [2009] NSWDC 57 Fleming v The Queen (1998) 197 CLR 250 Category: Principal judgment Parties: Regina (Crown) Phillip Ross Franks (Accused) Representation: Counsel: Mr Kerr (Crown) Mr Hughes SC (Offender)

Solicitors: Ms Coleman (Crown) Mr Cronin (Offender) File Number(s): 2018/00400507

Judgment 1. HIS HONOUR: 19 July 2018 at 8.30pm was a cold dark moonless night with intermittent rain in the quiet township of Howlong. A tragedy was about to unfold which would change people's lives forever. The serenity and quietness was about to be extinguished. Billy Holmes (Bolton) was riding an unregistered trail bike without a helmet. The motorcycle did not have a headlight. His blood alcohol concentration was 0.225%. He was riding north along Lowe Street at 67 kilometres per hour. The speed limit was 50 kilometres per hour. His bike was travelling at 18 metres per second. He was followed on a trail bike by his friend Harley Turner. 2. Phillip Franks (the accused) was driving a Nissan Navara crew cabin utility south along Lowe Street. He was approaching the entrance to his home. His blood alcohol level at the time of impact was 0.160. He turned to drive into his driveway at 55 Lowe Street. He did not see the motorbike. There was a collision as he was midway through his turn. The motorbike impacted with the front near side quarter panel and then along the near side of the vehicle within the northbound lane. Billy was thrown from the bike and died. He was a young man (23 years of age), and those that knew him grieve and mourn his loss. It is a tragedy. 3. His friend Harley Turner is filled with guilt and blames himself for what happened and wishes that they did not go on the bikes that night and had put them in the shed instead. One doubts if Mr Turner will ever relieve himself of the guilt and loss, it is a tragedy. Phillip Franks will never forget this fateful night where a young man with his future ahead of him died as a result of the collision. One cannot expect to expunge such a happening from his memory. It no doubt will play on his mind forever. 4. There are times when the criminal law intervenes in tragedy. It does so in this case. On Wednesday 5 August 2020 Mr Franks was arraigned and pleaded not guilty to the following: "On 19 July 2018 in Howlong in the State of New South Wales did drive a vehicle, namely a Nissan Navara New South Wales registration AE 68 QJ, whilst under the influence of intoxicating liquor whereby the vehicle was involved in an impact as a result of which the death of Billy Holmes (Bolton) was occasioned and where the prescribed concentration of alcohol was present in his blood." 1. The Director of Prosecutions further charges in the alternative to count 1 that: "On 19 July 2018 in Howlong in the State of New South Wales did drive a vehicle, namely a Nissan Navara New South Wales registration AE 68 QJ, whilst under the influence of intoxicating liquor whereby the vehicle was involved in an impact as a result of which the death of Billy Holmes (Bolton) was occasioned." 1. He applied for and the Crown consented to a judge alone trial. The Crown must prove the following elements beyond reasonable doubt: 1. Death was occasioned; 2. The impact was occasioned between Mr Bolton and the vehicle driven by Mr Franks; 3. At the time the vehicle was driven by Mr Franks he was under the influence of intoxicating liquor. 1. Mr Hughes of senior counsel who appears for Mr Franks concedes the elements. He also conceded that the circumstance of aggravation is made out, namely that Mr Franks' prescribed concentration of alcohol is greater than 0.15%. Mr Hughes SC relies upon s 52A(8) to mount a defence to the charge and the alternative charge. Section 52A(8) provides: "Defences - it is a defence to any charge under this section if the death…occasioned by the impact was not in any way attributable (as relevant); (a) to the fact that the person charged was under the influence of intoxicating liquor, or of a drug or a combination of drugs or (b) … or (c) …" 1. It is incumbent upon the accused to prove on the balance of probabilities that the death occasioned by the impact was not in any way attributable to the influence of intoxicating liquor. The accused must prove on balance that there was no causal connection of him being under the influence and the death of Billy occasioned by the impact of his vehicle.