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. EVIDENCE LED IN THE CROWN CASE 1. The Crown tendered a folder of materials which contained the following: 1. ERISP and transcript dated 19 July 2018. 2. A statement of Timothy Phillips. 3. A statement of Darryl Fitzpatrick. 4. A statement of Bayne Steve. 5. A statement of Timothy Sweeting. 6. A statement of Tim Simmons. 7. A statement of Joy Franks. 8. A statement of Erin Bolton. 1. Also tendered were expert reports of Detective Senior Constable Janelle Lynch with photographs 1-34, 37-55 and 69-80; Simon Parker and the chart of area of collision; Grant Johnston report, John Jamieson report and the report of Dr Judith Perl. Those documents formed exhibit 1. 2. Exhibit 2 was an A2 size chart of a survey conducted by Senior Constable Grady on 14 August 2018 of the crash scene and Lowe Street. 3. Exhibit 3 was the disk of Mr Franks' ERISP conducted on 19 July 2018. 4. Exhibit 4 was an agreed facts document signed by the accused on 5 August 2020. It reads as follows: "Agreed Statement of Facts - Pursuant to s 191 of the Evidence Act 1995 the parties agree that (1) at approximately 8.30pm on 19 July 2018 the accused, Phillip Ross Franks, was driving a motor vehicle, namely a white Nissan Navara New South Wales registration AE 68 QJ in a southerly direction on Lowe Street, Howlong; (2) at approximately the same time Billy Holmes (Bolton) was riding an unregistered and unroadworthy 250cc motocross motorcycle north on Lowe Street, Howlong. The motorcycle was not fitted with a headlight or any other lighting; (3) as the accused turned right to enter the driveway of his home at 55 Lowe Street, Howlong, he crossed into the northbound lane; (4) when the accused was partway through the turn and partially within the northbound lane the motorcycle ridden by Billy Holmes impacted with the left-hand side of the accused's vehicle in the area of the front wheel arch; (5) the impact caused the death of Billy Holmes; (6) the accused was taken to hospital where a sample of blood was taken; (7) the blood sample when analysed showed a reading of 0.141 grams per 100 millilitres of blood. When interpreted by Dr Judith Perl it was concluded that the accused's blood alcohol level at the time of the impact was 0.160 grams per 100 millilitres of blood; (8) Billy Holmes was not wearing any reflective or safety clothing; (9) no mechanical defects were identified on the Nissan Navara that could have contributed to the collision." 1. Exhibit 5 was an A3 colour printout of a Google map of Howlong. 2. Exhibit 6 two clips of CCTV footage of the accused travelling on Lowe Street with headlights on his vehicle. 3. Exhibit 7 an aerial photograph of Lowe Street, Howlong. 4. Exhibit 8 RTA inquiry of the address history of the accused which demonstrated that he had resided at 55 Lowe Street since 4 March 2008. 5. The Crown called Harley Turner who gave evidence on Thursday 6 August 2020 and Detective Senior Constable Kelly Johnson, the officer in charge. The Court at the request of the parties conducted a view of the scene in the afternoon. On Friday 7 August 2020 the Crown closed its case. THE CASE FOR THE ACCUSED 1. The accused did not give evidence. He relied upon his ERISP conducted on 19 July 2018 and the expert report of John Jamieson dated 19 July 2019 which formed part of exhibit 1. DIRECTIONS 1. In compliance with s 133(2) and (3) of the Criminal Procedure Act and as required by the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250, I remind myself of the following principles of law. As the accused has pleaded that he is not guilty and elected trial by judge alone, it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of these charges and to return my verdicts according to the evidence that I have heard. 2. I have heard and received final submissions from the Crown and Mr Hughes SC of counsel. I will consider the submissions that have been made in the addresses and give to the submissions such weight as I think they deserve. I note that in no sense are those submissions evidence in the case. I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs and my common sense. I acknowledge that I have very important matters to decide in this case, important not only to the accused but also to the whole of the community. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. As the sole judge of the facts I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called and the various exhibits. I remind myself that I may in my role as the judge of the facts draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts. 3. I now direct myself in the onus of proof. This is a very important direction. This is a criminal trial of a most serious nature and the burden of proof of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. The elements of the charges have been conceded. Section 52A(8) requires the accused to prove on balance that there was no causal connection of him being under the influence and the death of Billy occasioned by the impact. It is, and always has been a critical part of our system of justice that persons tried in this Court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge beyond reasonable, then the accused must be found not guilty of the charges. However, in this case the elements are admitted. The accused faces an evidential burden as set out in s 52A(8). NON-EXPERT EVIDENCE 1. At about 8pm Billy Bolton and Harley Turner unloaded two motorbikes. Billy Bolton had a KTM which is a two-stroke motorbike. The other bike was a Yamaha YZF250, a four-stroke. While unloading the bikes Billy and Harley drank half a can of Wild Turkey and cola. Neither bike was registered. Neither bike had headlights, brake lights or indicators. Mr Turner picked Billy up from his workplace in Wodonga. Mr Turner had had a couple of beers before he picked Billy up. He and Billy had some beers. Turner had four or five. He saw Billy drinking but did not know how much Billy had drunk. It was his belief Billy had consumed less than him because he (Turner) had been drinking before he picked Billy up. The bikes which had been unloaded from a trailer were about to be pushed into the shed when one or either Turner or Bolton said "We should go for a ride". It was a fatal decision. Mr Phillips who saw them ride off said: "At first it sounded like they were riding at a reasonable speed, but then I could hear as they were giving it more of a stick and riding hard. I could hear them riding the motorbikes around town." 1. Darryl Fitzpatrick made the following observations: "At about 8.15pm on Thursday 19 July I was at my home at 5 Victoria Street, Howlong. I had just walked outside to the front of my house having realised I had left something inside my work truck. As I walked towards my truck I heard two motorbikes revving loudly. The noise was coming from the west and I knew both were at Memorial Park which is at the end of Victoria Street. From the sounds the bikes were making it seemed the riders were holding the front wheels at one point by causing the rear wheels to lose traction and go around causing a circular mark to be left behind. I did not see this and it is my experience which led me to draw that conclusion." 1. The actions described by Mr Fitzpatrick have been described as performing a donut. Mr Turner was cross-examined about performing donuts at the park. He said he did not recall doing it. He was not in a position to deny doing it. Mr Fitzpatrick went on to say: "I was still at my truck when I heard both motorbikes coming towards my house from out of the park. I looked towards the entrance of Memorial Park and the first thing became apparent to me was there was no headlights. I listened and I did not hear either bike slow down as they came out of Memorial Park across Pearce Street into Victoria Street. Both were accelerating rapidly as this occurred and both continued to accelerate as they passed the front of my house…I was about 15 metres away from the bikes at the closest point. I cannot estimate speed except to say it was about 50 kilometres per hour speed limit and increasing. I listened and heard both continue east along Victoria Street with the speed increasing and can confirm neither bike slowed down as they crossed the intersection of Victoria and Hammer Streets, nor when they crossed the intersection of Victoria and Sturt Streets. I could still hear the bikes as I walked back inside my house. During the few seconds it took me to go from the truck to closing my front door once inside the house I did not hear the bikes decelerate at any time." 1. Bayne Steve was sitting in the back yard of his home. He told police: "I could hear two motorbikes at the western end of the town. I could hear them tearing around for about five minutes…I could hear the bikes being revved and the riders going up through the gears. Due to the manner the bikes were being ridden I went to the fence on the eastern side of my house and looked to Victoria Street. I saw two shadows flash past but I knew it was two bikes. I didn't see make, model or even colour of the bikes due to it being dark and the speed they were travelling. There was no gear changes from the time I heard them coming along Victoria Street and I couldn't hear them anymore which makes me think they were both in top gear. At the eastern end of Victoria Street I couldn't hear the bikes anymore so I didn't know where they had gone. I can't be sure how long it was before I heard the bikes again, but I know when I did hear them they were in Lowe Street travelling north. There were no gear changes and the motors were revving hard. As the bikes were travelling I heard a sudden and very loud thud. There was no noise after that." 1. He then went to the scene and saw the body of the deceased on the embankment in Lowe Street. 2. Other witnesses described the movements and noise of the motorbikes. Timothy Sweeting was so put out by the noise he got a torch and went outside his house to confront the rider of the motorcycle about the excessive engine noise. 3. Detective Senior Constable Simmons who was off duty and at home could hear the sound of high revving motorbikes above the noise of his TV, "The sound of the bikes became louder where they were revving very high". A short time later the noise of the bikes stopped. He heard sirens and was recalled to duty. He attended the crash scene and described it as "Very dark, there was no moonlighting and heavy dark cloud cover". 4. Mr Turner told the Court they had ridden the motorbikes to Memorial Park and around the streets of Howlong. Neither of them were wearing helmets or any reflective clothing. After riding around a number of streets they were riding along Lowe Street and Billy was in front of him. They were travelling at about the same speed. Neither bike had a speedometer. He did not know how fast he was travelling. 5. As one rides north along Lowe Street towards Victoria Street there is a dip in the road. From my observations at the view to describe it simply as "a dip in the road" is an understatement. It is an appreciable dip as borne out by the measurements in exhibit 2 for the gradient of the road surface. The accused's motor vehicle when he commenced to turn into the driveway was close to the bottom of the dip. He was faced with an uphill roadway. Mr Turner gave evidence of the collision in the following terms: "Q. As you road behind Billy down over the crest and down into that dip can you tell us what happened? A. I don't know. He got hit by a car. Q. Can you tell us what you remember seeing? A. I didn't see the car until it just happened, just happened real quick. Q. Where was the car when you first saw it? A. In the dip. Q. On which side of the road? A. Not sure. I just seen it. As I seen the car it hit Billy and it was I think in the middle of the road where it happened": see p 7 lines 6‑18. 1. The officer-in-charge described the pre-collision riding of Mr Turner and the deceased as reckless and agreed with the proposition that in the manner they were driving they were an accident waiting to happen. There was evidence that they had ridden through a number of intersections without stopping. The officer-in-charge in re-examination said that absent the alcohol there was nothing about the driving of the accused that was dangerous. 2. Mr Crown in his final address cited R v Thai [2007] NSWDC 57. His citation was incorrect. The judgment of Murrell SC DCJ as she then was but now is the Chief Justice of the Supreme Court of the ACT, is published at [2009] NSWDC 57. I agree with her Honour's analysis at [16] that pursuant to s 52A(8) the accused will be exonerated only if it is established that the death "was not in any way attributable" to his manner of driving. Under s 52A there is no scope for apportioning responsibility between an accused and a deceased in the way in which responsibility may be apportioned in civil proceedings. 3. It is clear, as I have indicated earlier, 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. After the collision Mr Turner went to where Billy was lying, he was dead. Mr Turner then assaulted the driver (the accused). He punched him in the head. Mr Turner described it as a simple act. Mrs Franks, the wife of the accused, witnessed the assault and described it in the following terms: "I had turned to front veranda light on prior to walking back down the veranda. When I got to the end of the veranda when I saw Phillip on the ground on his back I saw a male on top of Phillip. He was straddling him, his legs either side of Phillip's body. The male was punching Phillip. The male lent over Phillip using both of his hands which were clenched punching Phillip, top part of his body. It looked like he was punching Phillip's head and face. Phillip was just laying there…I yelled at the male "Get off him, get off him, I've called the police and the ambulance". The male stopped punching Phillip." 1. Mr Turner then took Mr Frank's motor vehicle and drove to his house and told Mr Phillips he had to come with him. He drove Mr Phillips to the collision site. Mr Turner assaulted Mr Franks a second time. Mr Phillips described the assault in the following terms: "I turned around and saw Harley who had the male with his left hand by the jumper around the chest and punching with his closed right fist. The male has fallen to the ground, the male was holding Harley with both hands. Harley was still holding onto the male with his left hand around the chest and punched him with his right closed fist to the left side of this male's face. I ran over and grabbed Harley under his armpits and pulled him away…I went back over to the male and as soon as I got to him I saw his face and immediately recognised that it was Phillip. The lady with Phillip was screaming hysterically. I saw Phillip and his eyes were rolling in the back of his head and saw blood coming out of his mouth. I rolled him onto his side and someone got a jacket and put that under Phillip's head." 1. After the collision Mr Turner says that the accused said words to the effect of "Look what happens you fucking idiots". It was put in cross-examination that these words were never said. In my view it is not necessary to make a factual finding on this point. If the words were said they may have been said with the benefit of hindsight in that neither bike had a headlight and to ride at speed on a dark night could cause the accused after the collision to protest that Mr Turner and the deceased were "fucking idiots" making it impossible for him to see before the collision. 2. One must be careful about the account given by Mr Turner. In his first version given to police he believed that the accused swerved into the deceased. He later learnt that the accused was driving into his driveway. He conceded that his original version of swerving was wrong. In re-examination he accepted that the accused was not deliberately trying to get into the path of Billy's bike. In his first version to the police he said that the point of impact was "around the right headlight" of the Navara. This does not accord with the expert evidence and is contrary to the agreed fact between the Crown and the accused contained in para 4 which places the point of impact "with the left-hand side of the accused's vehicle in the area of the front wheel arch". He agreed in cross-examination he must have been wrong: transcript 18 line 2. He agreed that he did not have a very clear memory of what happened: transcript 20 lines 3-5, and that the accident happened very quickly: transcript 21 lines 47-48. THE ACCUSED'S ERISP 1. The accused's ERISP commenced at 10.44pm on Thursday 19 July 2018. He told the police the following: "Well I, well I just driving down the street and I was just going to my place and next thing crash, bang, I didn't know what happened and um, something hit the windscreen and um looked like that anyway and um had absolutely no idea what happened. I went to pull into my driveway and next thing that was it and just I had no idea what happened, and no, didn't see anything, no nothing, no, whatever. Then next thing crash, bang, and that was it. I had absolutely no idea what happened, had absolutely no idea what happened, no idea whatsoever. This bloke that come to me and he said 'You've killed me mate' and I didn't say anything actually, I didn't even know. I was just going to go like this into my driveway and crash, bang, I had absolutely no idea what happened. I just turned to drive into my driveway, and next thing crash. I had absolutely no idea what had happened. Q. Whereabouts had you driven from? A. I'd been up to a mate's place and I was feeding some calves. Q. Now, have you consumed any alcohol or illicit drugs today? A. Probably had seven or eight stubbies, Carlton Dry stubbies." 1. He was then asked when he first started drinking, he said "Probably about 4 o'clock". He was asked "When was his last drink", he said "Maybe 7.30, something like that". He went on to say: "I just went to turn into my driveway and crash, and that's all I know, didn't know anything. I had absolutely no idea what had happened. I didn't know whatsoever". 1. I have omitted from the summary of the ERISP the assault and the stealing of the motor vehicle as they were admitted by Mr Turner and have been referred to previously in the judgment. EXPERT EVIDENCE - DR JUDITH PERL 1. Dr Perl is a clinical forensic pharmacologist employed by The NSW Police Service. She has a Bachelor of Science (1979) and a Doctorate of Philosophy (pharmacology 1988). Her qualifications and opinion were not challenged. 2. A blood sample was taken from the accused at 10.30pm on 19 July 2018. He had a blood alcohol concentration of 0.141. It was her unchallenged opinion that based on the blood sample taken at 10.30pm and on elimination rates, at 8.35pm the accused's blood alcohol concentration would have been not less than 0.160. At that level there would have been very substantial impairment of driving ability. 3. Impairment by reason of tunnel vision, the effects on visual performance are most marked for moving objects. Visual skills are pushed to their limit at night by decreased illumination. Vigilance is the level of alertness we give a task and this has been found to be impaired at blood alcohol concentrations around 0.03. Alcohol intoxication can result in disinhibition. It can manifest itself in inappropriate driving manoeuvres. The Crown relies upon this observation. 4. It is the conclusion of Dr Perl that the accused's blood alcohol concentration at 8.30pm would have been not less than 0.16 grams per 100 millilitres, and at 8.35pm would have been not less than 0.160 grams per 100 millilitres and a BAC of 0.160, and above all people would be under the influence of alcohol to the extent that driving ability would be very substantially impaired. At these BACs the accused would have severely impaired perceptions, judgments, information processing skills, divided attention skills, visual functions and reaction skills and the effects of the alcohol would have diminished his judgment of the speed and distance of the motorcycle rider. The conclusion expressed by Dr Perl is unchallenged and I accept it. JOHN JAMIESON 1. Mr Jamieson is a qualified engineer and invited Fellow of the Institute of Engineers Australia. He has extensive experience in traffic safety and transport policy. He completed a Masters of Engineering Science in 1976. He supervises or conducts approximately 250 to 350 crash investigations annually. 2. He conducted an analysis and audit of the crash from an engineering/scientific viewpoint. He has conducted in-depth investigations of 7,600 crashes. He inspected the site on two occasions on 16 July 2019, the first in daylight conditions and the second during night-time conditions. 3. The crash involved a right turn against type collision in dark conditions within the urban area of Howlong, New South Wales. The orientation of the crash involved a northbound 23 year old male riding an unregistered 250KTM trail motorcycle with no lights and just beyond a crest an oncoming right turning Nissan Navara ST-R30DR utility driven by Phillip Franks then aged 65. As a result of the crash the motorcyclist was deflected off to his right having impacted the left side of the turning Navara, to come to rest on the eastern side of the road reservation receiving fatal injuries. 4. He took photographs at night. The night photographs show that due to the 6% grade-up of the road the headlights of the accused would have been pointing into the sloping road thus restricting the low beam range. There was a light pole near the collision scene. The light was not working. The purpose of the light if it had been working is not to illuminate the road surface but rather give some guidance to pedestrians using the footpath. 5. Under the head of Crash Analysis Mr Jamieson says: "Right turn against type crashes involving normal car drivers and motorcycles are one of the most common crash types involving motorcycles. This case is different however in that the motorcycles were ridden unlit in effectively dark conditions while the approaching driving was ascending a 6% grade-up towards his driveway and therefore on the initial ascension the motorcyclist would have been unsighted even during the day…the evidence reviewed and the site inspection support the proposition that the motorcyclist would have been effectively in darkness…from a traffic engineering viewpoint the expected time between the start of the turn into the unsealed driveway and the impact would have been about two seconds. Therefore it appeared likely that the unlit motorcycle of Mr Holmes would have been about 40 metres to the south at the start of the turn out of low beam headlight range, that is could not have been seen in these dark conditions." 1. Under the heading of Summary and Conclusion he says: "The crash occurred in almost total darkness with it reportedly lightly raining. The impact area was within the urban area of Howlong with an existing speed limit of 50 kilometres per hour. The initial approach to the driveway into which the Nissan driver Mr Franks was turning was a 6% grade up with a crest of about 25 metres beyond (to the south) of the driveway…The KTM impacted the Nissan at its left front wheel well (the Nissan having begun its right turn) with it likely the rider being catapulted over the handlebars with his head heavily striking the windscreen and the left A-pillar of the Nissan…The rider was then projected a distance between 18.3 metres and 26.5 metres. Crime Scene Officer Simon Parker in his report of 18 January 2019 suggested that the calculated upper speed range was 73 kilometres per hour, but considered the most likely maximum speed was 67 kilometres per hour…The driveway was located about 25 metres north of a crest which restricted initial sight and distance to the south and Mr Franks…It was concluded that if the crash occurred during daylight or dusk the oncoming motorcycles would have been evident for a driver stopped at number 55 waiting to turn right into its driveway. However, in the lighting conditions (from a streetlighting viewpoint) and with both motorcycles not having any lighting or reflectors it was considered that the motorcycles would have effectively been in darkness and out of low beam headlight range. That is from a traffic engineering viewpoint it was considered unlikely that the oncoming motorcyclist at the expected position of the turn would not be able to be sighted by any driver using low beam headlights." 1. After service of Mr Jamieson's report dated 19 July 2019 the Crown engaged its own expert. GRANT JOHNSTON - CROWN EXPERT 1. Mr Johnston holds a Bachelor of Civil Engineering degree from the University of New South Wales. He completed a Master's degree in Traffic and Pavement Engineering. The thesis for his masters was an in-depth analysis of crashes occurring on the Pacific Highway between 1985 to 1991. He also holds a graduate diploma of Biomedical Engineering. 2. In February 1993 he joined the firm Jamieson Foley & Associates Pty Ltd. Later he was appointed general manager of a subsidiary firm. He took up his current appointment in 2002. Whilst at Jamieson Foley & Associates he was involved in around 1,000 individual crash investigations. Since 2002 he has undertaken about 1,600 forensic crash reconstruction cases. 3. He conducted a view of the incident location on 14 April 2020. During both daylight and darkness conditions he conducted an aerial survey using a drone. It was his opinion that: "The defendant's driveway is actually located in a vertically depressed section of the roadway which appears to be associated with a natural water course. This depressed section commences approximately 59 metres south of Victoria Street and stretches over a length of approximately 117 metres. Mr Franks' driveway is about 30 metres from the end of the depressed section about two-thirds of the way up the rise out of the depressed section. Based on my observations of vehicles travelling along Lowe Street, at the scene the depressed section of the roadway is sufficiently depressed that it creates visual difficulties between vehicles within this depression and northbound vehicles in Lowe Street." 1. He said: "Lowe Street is a change in gradient that extends downhill in a southerly direction from the T-intersection of Lowe Street and Victoria Road to a position approximately 55 to 60 metres north of the centre of the driveway into number 55, and is approximately level for approximately 15 to 25 metres (south) before extending uphill to a position approximately 45 metres south of the centre of the driveway into number 55. The road then levels out and extends southwards at that height. The downhill grade to the north of the driveway into number 55 was approximately 6.1%. The uphill grade at the driveway into number 55 was approximately 6%." 1. At 4.7 of Mr Johnston's report he made this observation: "At the time of this incident Billy Holmes was the rider of an orange KTM250 Motocross motorcycle. The vehicle was not registered and it was currently configured without lights and other safety equipment. It was not capable of being registered…The motorcycle was broken into two main pieces and other smaller parts of the motorcycle were strewn across the roadway. The front section consisting of the front forks, the front wheel and the handlebars, came to rest on the eastern side of the road surface. The rear of the motorcycle consisting of the rear wheel, seat, engine and most of the frame, came to rest on the eastern verge north-east of the approximate area of impact…The damage to the left side of the Nissan utility indicates that the impact was at an acute angle and not at or close to the right angle…The Nissan utility had to have been on an angle across the northbound side of Lowe Street at the time of the impact…The angle had to be such that the rider has moved from his motorcycle onto the windscreen of the Nissan utility and then moved to his final rest position." 1. Under the heading of Motorcycle Visibility he reports: "In order for the motorcycle to be visible to Mr Franks they had to be discernible in the available light against the viewing background…The darker and less reflective the target then the higher levels of light which are required to identify the target…Ambient natural light would have been insufficient to have identified the motorcycles without an artificial light source…Mr Holmes was noted to be wearing a long sleeve black hooded jumper, light blue jeans and black shoes…The amount of light required to discern a dark-coloured object of the size and shape of a motorcycle is typically around 15 to 20 lux. Considering this the ambient light by itself was not sufficient to illuminate the motorcycles and they would have had to have had been illuminated by the vehicle's headlights in order to be visible to the driver of the Nissan utility. I also note that considering that the motorcycles were travelling down a steep slope just before the moment of impact there would not have been much contrast between the motorcycles, their riders and the colour of the then unilluminated roadway, make it more difficult for the driver to identify the motorcycles. At the position of the incident the roadway, although reasonably straight, had a slight S-bend which would have affected where the motorcycles were located and where the Nissan utility's lights were aimed. The headlights on Australian vehicles are aimed slightly to the left side of the road so as not to shine directly into the eyes of approaching drivers. Due to the slight S-bend the Nissan utility was travelling slightly more to the left than directly towards the motorcycles, so its headlights would have been aimed slightly more to the left than normal causing less light to be directed towards the approaching motorcycles." 1. Mr Johnston then utilised a computer program called Interactive Driver Response Research which was developed to determine the human factors, responses of drivers including things such as perceptions/response and night time recognition distances of objects. Headlight analysis enables calculation of the average recognition distance of a driver to an object on a road based on specific headlight data including both high beam and low beam headlights. The solution from the recognition distance on unlit roads module is a recognition distance of 41.6 metres. 2. The solution from the headlight analysis module for low beam gives a recognition distance of 44 metres. It is Mr Johnston's opinion that: "That the approaching motorcycles could have been first visible to the driver of the Nissan utility when they were approximately 40 to 45 metres away if the Nissan was approaching on low beam headlights assuming this line of sight was possible over the vertical crest approaching the incident location." 1. Mr Johnston went on to do a calculation involving the use of high beam. That calculation meant that the approaching motorcycles could have been first visible to the driver of the Nissan utility when they are approximately 70 metres away if the Nissan was approaching on high beam headlights. This calculation became a significant plank in the Crown's final address. I will deal with that contention at a later part of the judgment. 2. Mr Johnston at paragraph 38 of his report says: "It must also be remembered that the vehicles were approaching each other and therefore the closing speed rather than simply the speed of the defendant's vehicle must be considered to calculate the time available. Initially it can be assumed that the combined closing speed was around 100 kilometres per hour assuming 50 kilometres for each vehicle. But in reality the evidence probably suggests that the Nissan was less than 50 kilometres per hour and the motorcycles were probably more than 50 kilometres per hour with a net closing speed of 100 kilometres mark. The Nissan slowed further at approach and commenced the right turn. At this speed range the 40 to 45 metre recognition distance would have been closed in around 1.4 to 1.6 seconds." 1. At paragraph 40 he states: "Based on the average recognition distance calculated of approximately 40 metres and the calculated time for the two vehicles to close that distance, the turn would have begun before recognition of the approaching motorcycles was possible based on low beam headlights. It would however have probably commenced about the same time as recognition was possible based on high beam headlights…The driver of the Nissan utility has claimed that the did not see the motorcycles approaching and only became aware of them at the time his vehicle was struck by the KTM motorcycle. The most significant point is that a driver cannot respond until he is aware of a hazard. If he does not see or does not recognise another vehicle or object as a hazard he is not going to respond." 1. Mr Johnston's analysis: "Suggests that an average driver approaching the incident scene on low beam with the motorcycles approaching in the opposite direction probably do not have sufficient time to react to the presence of the motorcycles prior to the impact, which is what we understand to be the circumstance of this incident. Therefore I would agree that in the actual circumstances of this incident with Mr Franks approaching on low beam, it was probably nothing he could have done to avoid impact once he was able to potentially identify the presence of the motorcycles." 1. Mr Johnston went onto to say at 5.66: "If however he had approached on high beam or better still also utilised the LED light bar in conjunction with high beam, then it is likely that if he checked the roadway was clear prior to proceeding and regulated his speed to one from which he could stop if necessary, then he probably would have had time to recognise the approaching motorcycles in time to have stopped his vehicle and avoided the impact provided they were approaching in the roadway of Lowe Street at about the range of speeds I have previously estimated." 1. The Crown relies upon that aspect of the report. In conclusion Mr Johnston made the following findings: "The visibility of the approaching motorcycles was assessed based on the IDRR program and I estimate the recognition distance of the motorcycles based on a low beam headlight on the Nissan was about 40 to 45 metres. Based on a high beam headlight it would have been about 70 metres. I estimated that the time required to complete the turn up to the point of impact has been about two to three seconds and the perception/response time of Mr Franks to the motorcycles as being about 2.2 seconds. On this basis I determined that the average driver approaching the incident scene on low beam with the motorcycles approaching in the opposite direction probably did not have sufficient time to react to the presence of the motorcycles prior to impact. Therefore I would agree with Mr Jamieson that in the actual circumstances of this incident with Mr Franks approaching on low beam, there was probably nothing he could have done to avoid impact once he was able to potentially identify the presence of the motorcycles." CROWN SUBMISSIONS 1. The Crown contended that the case was a tragedy but a tragedy that could have been avoided. The Crown submitted that the accused was heavily intoxicated. At a reading of 0.160, he was. The Crown submitted that the accused through his counsel had sought to shift the blame onto the deceased. Mr Crown conceded that the conduct of Mr Turner and the deceased in riding the streets at night in the middle of winter on unroadworthy motorbikes with no helmets or headlights was a particularly stupid thing to do. He went onto say: "Had they not been doing that it is highly likely that Billy Holmes may still be alive…" 1. He then developed an argument that road users do stupid things all the time and that is why we have road rules. He went on to say: "While his conduct may have contributed to the collision, it is the conduct of the accused that should be and must be the focus of these proceedings". 1. It is a valid argument. It is incumbent upon the accused to prove on balance that the death occasioned by the impact was not in any way attributable to the fact he was under the influence of intoxicating liquor, or to put it in another way, there was an absence of causal connection between the death of Billy Holmes and the accused's condition. 2. Mr Crown submitted that: "Billy Holmes' conduct and whether or not it contributed to the collision, has no part to play in the defence contained in subs (8)". 1. However, Mr Johnston, the Crown expert, in coming to his conclusions took into account the clothing worn by the deceased, the speed of the deceased's motorcycle at the time of impact, and that the motorcycle did not have a headlamp. 2. The Crown relied heavily on the report of Dr Perl. He submitted that the report: "is based on science, on research and on literature that has been developed over a number of decades. It is the expert opinion of Dr Perl that the accused must overcome and the Crown says he cannot". 1. It is beyond doubt that the accused: "would have had severely impaired perceptions, judgment, information processing skills, divided attention skills, visual functions and reaction skills and the effects of the alcohol would have diminished his judgment of the speed and distance of the motorcycle riders." 1. The question is a simple one, "Did the accused see the motorcyclist before commencing his turn into his driveway?" The report of Dr Perl as to the accused's diminished judgment of the speed and distance of the motorcycle rider becomes relevant only if he saw the motorcycle rider. 2. The Crown contended that the report of Mr Johnston was critical. I have spent some time in this judgment summarising that report. The point of contention raised by the Crown is that the report of Mr Jamieson fails to address the issue of headlights on high beam as Mr Johnston's report does. The Crown submits that there is no prohibition on using high beam in a built up area other than if you are within 200 metres of an oncoming vehicle or within 200 metres of a vehicle in front of you travelling in the same direction. 3. The Crown contends that as a result of Mr Jamieson's report focusing on low beam, and his failure to consider high beam, then there is a flaw in his interpretation. The Crown further contends that with the accused's knowledge of the roadway (the dip) he having lived there for over 12 years, he should have been driving with his high beam on. Such a contention must be looked at through the eyes of common-sense. There is no obligation to use high beam in a built up area. One can imagine a driver temporarily using high beam to find a house number, or if he or she saw something that they were unfamiliar with. Drivers do not drive in built up areas with high beam permanently on. 4. The Crown submits that Mr Franks should have come to a complete stop before commencing the turn. The Crown in his opening referred to the accused "cutting the corner". This was not borne out by the evidence of Mr Johnston and his diagram of the point of impact at figure 5.1 of his report. The accused did not see any oncoming traffic before he commenced to turn. It is unrealistic and no doubt with the benefit of hindsight to suggest that he should have come to a complete stop before proceeding to turn into his driveway. ACCUSED'S SUBMISSIONS 1. Mr Hughes of senior counsel commenced his address by reminding me that there was no issue that the accused was the driver, that death resulted from the impact and that the accused was affected by intoxicating liquor. The issue that needed to be determined was did the accused have available to him a defence pursuant to s 52A(8). That is the death occasioned by the impact was not in any way attributable to the fact that he was under the influence of intoxicating liquor. He submitted: "It is for the accused to prove on the balance of probabilities that that lack of causal connection put simply that the accused's case is that he could not and indeed did not see the oncoming motorcycle ridden by the deceased because of a number of factors including, but not limited to, the speed at which the motorcycle was travelling, the absence of any headlights on the motorbike, the lack of reflective gear on the clothing or the bike itself, the topography of the roadway, and your Honour has had the benefit of a view and you have seen the quite significant dip in Lowe Street at about the area of the accused's driveway." 1. Mr Hughes SC relied upon the expert reports of Mr Jamieson and Mr Johnston. CONSIDERATION 1. The following matters are not in dispute 1. The deceased has a blood alcohol reading of 0.225%; 2. He was riding a KTM250cc motorcycle that did not have a headlight north along Lowe Street in Howlong; 3. The pre-impact speed of the motorcycle was 67 kilometres per hour in a designated speed limit of 50 kilometres per hour. The deceased was travelling at 18 metres per second; 4. It was a dark cloudy night with intermittent rain; 5. At the time of the incident the nearest street light was located at the western side of the road but was not working; 6. The deceased was wearing a long-sleeved black hooded jumper, light blue jeans and black shoes; 7. The accused had a blood alcohol concentration of 0.160; 8. He was travelling south along Lowe Street, Howlong and was turning right to enter his property; 9. He was probably driving at 20 kilometres per hour when he commenced the turn; 10. There is an appreciable dip (6% grade up) in the roadway leading to the turning point and beyond. 1. The experts appear to have a common view. Mr Jamieson says: "The crash occurred in almost total darkness with it reportedly lightly raining…The initial approach to the driveway into which the Nissan drove Mr Franks was turning was a 6% grade up with a crest about 25 metres beyond (to the south) of the driveway…The driveway was located about 25 metres north of a crest which restricted initial sighting distance to the south for Mr Franks…In the lighting conditions (from the street lighting viewpoint) and with both motorcycles not having any lighting or reflectors it was considered that the motorcycles would have effectively been in darkness and out of low beam headlight range. That is from a traffic engineering viewpoint it was considered unlikely that the oncoming motorcyclist at the expected position of the turn would not be able to be sighted by any driver using low beam headlights." 1. Mr Johnston, the Crown expert, says: "The visibility of the approaching motorcycles was assessed based on the IDRR program and I estimated that the recognition distance of the motorcycles based on a low beam headlight on the Nissan was about 40 to 45 metres…I estimate the time required to complete the turn up to the point of impact as being about two to three seconds and the perception/response time of Mr Franks to the motorcycle as being about 2.2 seconds. On this basis I determine that the average driver approaching the incident scene on low beam with the motorcycles approaching in the opposite direction probably did not have sufficient time to react to the presence of the motorcycles prior to impact. Therefore I agree with Mr Jamieson that in the actual circumstances of this incident with Mr Franks approaching on low beam, there was probably nothing he could have done to avoid impact once he was able to potentially identify the presence of the motorcycles." 1. The shared unequivocal expert opinion in this case is that on low beam Mr Franks would not have seen the motorcyclist before the collision. 2. In my view there was no obligation upon Mr Franks to be driving with his high beam on in a built up area as contended by the Crown. It defies the application of common-sense to do so. 3. This is a tragic case. A young man has died. There are many who grieve and mourn his loss. Tragic though it may be I am satisfied on the balance of probabilities that the accused did not see the oncoming motorcycle being ridden by the deceased. I am satisfied on balance that the accused has made out the statutory defence under s 52A(8) in that there was an absence of causal connection between the tragic death of Billy Holmes and the accused's state of intoxication. 4. I find the accused not guilty of both charges and a verdict of acquittal will be entered in the records. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2020