R v Bowman

Citation: R v Bowman [2015] NSWDC 94
Court: District Court of New South Wales
Date: 10 June 2015
Judge: Judge S Norrish QC

Background

The accused faced a charge of dangerous driving occasioning death under section 52A(1)(c)/(5)(g) of the Crimes Act 1900. The events arose on New Year's Eve 2012 in Narrabri, where the accused and the deceased were in a domestic relationship and shared her home at 81 Peele Street.

After a tense evening at local hotels, the deceased returned home heavily intoxicated and agitated. She became aggressive toward the accused, threatened him with what appeared to be a knife, and sought to prevent him leaving. The accused eventually got into his blue Commodore sedan, reversed out of the driveway, and drove south along Peele Street. Shortly afterward, the deceased was found lying seriously injured on the road. She was airlifted to Sydney and died from her injuries on 1 January 2013.

The Crown alleged that the deceased had been sitting on the rear of the vehicle when the accused drove off, fell from the car, and sustained fatal injuries as a result. The accused maintained throughout two police interviews that he had not known she was on or near the vehicle as he drove away. The trial proceeded as a judge-alone trial.

Legal Issues

• Whether the accused drove in a "manner dangerous to another person" within the meaning of section 52A of the Crimes Act 1900
• Whether a relevant "impact" as pleaded under section 52A(5)(g) (falling from a motor vehicle) was established beyond reasonable doubt
• Whether the accused held an "honest and reasonable belief" that it was safe to drive as he did, so as to negative the mental element of the offence
• What weight, if any, should be given to the accused's lies to police and his conduct after the event as evidence of "consciousness of guilt"
• How the expert pathological evidence bore on the mechanism and circumstances of the deceased's fatal injuries

Decision

Issue 1: Whether the deceased was on the vehicle and how she came to be injured

The court was satisfied that the accused was driving at the relevant time and that some form of contact between the deceased and the vehicle had occurred (at [154]). However, the Crown's core factual proposition, that the deceased was seated on the boot of the car as the accused reversed and then drove along Peele Street, could not be established beyond reasonable doubt (at [155]). The only independent observation of the deceased on the vehicle came from neighbour Robert Kerr, who saw her sitting on the rear of the stationary car before it moved (at [62]). The pathological evidence from Dr Duflou was heavily qualified: he could not identify the specific mechanism of injury, could not say which of the scenarios put to him was more likely, and expressed his views in terms of possibilities rather than conclusions (at [123], [142]).

The court identified several alternative reasonable possibilities for how the deceased came to be found on the road, including that she may have grabbed the rear spoiler as the car moved off, or come into collision with part of the vehicle as it drove forward (at [171]). The distance between the driveway and where the deceased was found, and the absence of any screaming or other sounds consistent with being carried on the vehicle, also told against the Crown's hypothesis (at [170]). The court concluded that the totality of the evidence was unable to establish beyond reasonable doubt the particular circumstance in which the deceased came into contact with the car or the road (at [162]).

Issue 2: Driving in a manner dangerous

The court applied an objective test to the accused's driving conduct (at [23]). It accepted that the accused reversed at speed, then drove south along Peele Street at some initial speed, leaving tyre marks in the loose gravel (at [158]). However, the court found that in the surrounding circumstances, including the time of night, the absence of other traffic or pedestrians, the dead-end nature of the street, and the fact that the accused had no reason to expect the deceased to attach herself to the rear of the moving vehicle, the driving did not constitute a serious breach of proper management and control creating a real danger to another person (at [157], [173]). The prosecution failed to establish beyond reasonable doubt that the accused drove in a manner dangerous (at [174]).

Issue 3: Honest and reasonable belief

The court accepted that the accused had discharged the evidential burden of raising an honest and reasonable belief that he was not aware the deceased was on the vehicle (at [134], [173]). It was not satisfied the accused knew or ought reasonably to have known she was on the car at the relevant time. His account of concentrating on driving forward, consistent with proper management of the vehicle, was accepted as at least a reasonable possibility (at [173]). The prosecution therefore failed to negative the honest and reasonable belief defence beyond reasonable doubt (at [173]).

Issue 4: Consciousness of guilt evidence

The court found that the accused told lies to police about who drove the vehicle and asked Brittany Herring to cover up his connection to the car (at [7], [167]). However, applying the relevant direction on consciousness of guilt evidence, the court declined to treat this conduct as establishing guilt for the specific offence charged (at [167]). The court reasoned that the accused's conduct was consistent with him realising, after the fact, that he must have somehow caused the deceased's injuries, without knowing precisely how. His early cooperation with police, his request that the car be produced to police rather than destroyed, and the internal consistency of his interviews with independent evidence all informed this assessment (at [167], [168]). The court also declined to accept that the accused had asked Herring to burn the car (at [168]).

Orders Made

• Not guilty

Key Takeaways

• A conviction for dangerous driving occasioning death under section 52A(1)(c)/(5)(g) of the Crimes Act 1900 requires the prosecution to establish beyond reasonable doubt both that the driving was "in a manner dangerous" and that a relevant "impact" as particularised occurred. Where the evidence leaves open multiple reasonable alternative explanations for how a person was injured, neither element may be made out (at [162], [174]).

• Where a defendant raises an honest and reasonable belief that circumstances existed which would not make the driving dangerous, the burden falls on the prosecution to disprove that belief beyond reasonable doubt. The prosecution failed to discharge that burden where the accused's account was at least a reasonable possibility, supported by physical and independent evidence (at [173]).

• Consciousness of guilt evidence, including lies told to police and steps taken to conceal involvement, does not independently prove guilt and cannot be used to fill evidentiary gaps. Such conduct may be explicable by reasons other than guilt of the specific offence charged, including panic or fear of implication in related but distinct conduct (at [32], [167]).

• Expert pathological evidence expressed only in terms of "possibilities" and "likelihoods," without firm conclusions about the mechanism of injury, may be insufficient to establish a critical element of the offence beyond reasonable doubt, particularly where the Crown concedes gaps in the evidence (at [123], [131], [142]).

• In a judge-alone trial under the Criminal Procedure Act 1986, the judge must expose the full reasoning process underlying findings of fact and the ultimate verdict, including the application of warnings such as the consciousness of guilt direction and the approach to drawing inferences adverse to the accused (at [11], [12]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Criminal Procedure Act 1986

Cases
- CTM v R [2007] NSWCCA 131
- Fleming v The Queen (1998) 197 CLR 250
- Jiminez v The Queen (1992) 173 CLR 572