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Supreme Court 30 September 2019

R v Meakin

[2019] NSWSC 1311

Homicide
CRIMINAL LAW TRIAL BY JUDGE ALONE MURDER CIRCUMSTANTIAL CASE

Citation: R v Meakin [2019] NSWSC 1311
Court: Supreme Court of New South Wales
Date: 30 September 2019
Judge: Hidden AJ

Background

In the early hours of 21 February 2014, a Toyota Hiace van driven by the accused struck and fatally injured a pedestrian, Nicholas McEvoy, on Richmond Road, Dean Park. The accused had spent much of the preceding evening at the nearby Plumpton Hotel, where the two men had a confrontational encounter over a pool game, culminating in the accused throwing a punch at the deceased (which did not connect) before they were separated by a security guard. The accused accepted he was driving with a blood alcohol concentration above the prescribed limit.

The Crown alleged the accused had deliberately driven the van partially onto a grass verge to run over the deceased, with intent to kill or cause really serious bodily harm. The accused maintained the collision was a tragic accident, saying the deceased had stepped or stumbled onto the roadway and he failed to react in time due to alcohol impairment.

This was a retrial. The accused had been convicted of murder by a jury in 2016, but the Court of Criminal Appeal set that conviction aside and ordered a new trial: Meakin v R [2018] NSWCCA 288. At the retrial, the accused pleaded not guilty to murder but guilty to the alternative count of dangerous driving occasioning death in circumstances of aggravation (driving with a blood alcohol concentration of 0.15g or more per 100mL of blood), under s 52A(2) of the Crimes Act 1900 (NSW).

  • Whether, on a circumstantial case, the Crown had proven beyond reasonable doubt that the accused intentionally drove the van onto the grass verge to strike the deceased, rather than the collision occurring accidentally on the roadway.
  • Whether expert evidence in forensic reconstruction and palynology (pollen and spore analysis) established that the collision occurred on the grass verge.
  • Whether the prior altercation at the hotel, combined with the physical evidence, was sufficient to exclude reasonable doubt as to intent.

Decision

Hidden AJ found the accused not guilty of murder. The trial proceeded as a judge-alone hearing, with the Crown relying on a circumstantial case built around the events at the hotel, witness accounts, expert forensic reconstruction, and scientific analysis of material found on the van.

The hotel confrontation provided a potential motive. The accused had been visibly irritated by the deceased's boisterous behaviour during the pool games, and a brief physical altercation occurred in the car park before the two men went their separate ways. However, witnesses also described the situation settling, with accounts of the accused and the deceased later shaking hands and appearing to part on civil terms before both left the hotel.

The expert evidence was central to the Crown's case. A forensic collision reconstructionist (Mr George) and a palynologist (Dr Milne) gave evidence tending to support the theory that the van had been on the grass verge at the time of impact. However, Hidden AJ found significant weaknesses in both. The reconstructionist's opinion was undermined by the absence of tyre marks on the verge, no observable marks on the tyres themselves, and uncertainty about a clump of grass found on the van. The palynological evidence was challenged by a second expert (Dr Mildenhall), whose opinion that the pollen and spores detected on the van were consistent with the roadway itself His Honour found persuasive, particularly given concerns about the manner in which soil samples had been collected.

Taken together, His Honour accepted that the expert evidence "painted a picture" supporting the probability that the van was on the grass verge, but found it fell short of proof beyond reasonable doubt. Because it remained reasonably possible that the collision occurred on the road and was not a deliberate act, the Crown case was not made out.

Orders Made

  • The accused was found not guilty of the first count (murder) in the indictment.

(The guilty plea to the second count of dangerous driving occasioning death in circumstances of aggravation was already recorded; no further orders on that count appear in the provided text.)

Key Takeaways

  • In a circumstantial murder case, the prosecution must exclude all reasonable hypotheses consistent with innocence beyond reasonable doubt, consistent with the High Court's approach in Shepherd v The Queen (1990) 170 CLR 573.
  • Expert forensic evidence that supports a probable conclusion does not automatically satisfy the criminal standard; the Supreme Court here found that probability fell short of the required certainty where a competing, innocent explanation remained reasonably possible.
  • Where competing expert opinions are offered on technical scientific questions, the court will scrutinise the methodology underlying each, including how samples were collected and whether survey conditions were appropriate.
  • A prior altercation between an accused and a deceased, even one involving a thrown punch, does not by itself establish the intent required for murder where the physical evidence is insufficient to prove the act was deliberate.
  • Evidence given by an accused at a prior trial may be admitted in a retrial and relied upon by the defence, even where the accused elects not to give evidence at the subsequent hearing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(2) (dangerous driving occasioning death in circumstances of aggravation), s 52A(7), s 52A(8)
- Evidence Act 1995 (NSW), s 38 (unfavourable witnesses)

Cases
- Meakin v R [2018] NSWCCA 288 (the prior appeal setting aside the jury conviction)
- Shepherd v The Queen (1990) 170 CLR 573 (High Court authority on circumstantial evidence and the standard of proof)