R v Watling [2007] ACTSC 64 (15 August 2007)

Last Updated: 19 September 2008

R v TIMOTHY JOHN WATLING
[2007] ACTSC 64 (15 August 2007)

EX TEMPORE JUDGMENT

No. SCC 288 of 2006

Judge: Higgins CJ
Supreme Court of the ACT
Date: 15 August 2007

IN THE SUPREME COURT OF THE )
) No. SCC 288 of 2006
AUSTRALIAN CAPITAL TERRITORY )

R

v

TIMOTHY JOHN WATLING

ORDER

Judge: Higgins CJ
Date: 15 August 2007
Place: Canberra

THE COURT ORDERS THAT:

1. There be a verdict of not guilty and that the defendant be acquitted.

1. In this case, Mr Archer submits that the evidence is insufficient to establish all the effective elements of the case. The accused is charged with culpable driving in that he, allegedly, on 11 September 2005 negligently drove on a road, being the Tuggeranong Parkway, and that driving occasioned death.
2. I do not have any doubt about the death of Terri Anne Matthews, who was only 18, doing nothing to anybody, simply sitting in a motor vehicle when the accident happened. It is quite obvious that, even there, she was most unfortunate to be in that particular position because, aside from the other girl, the three boys in the vehicle survived, it would appear, with little injury, although the other girl in the car did suffer significant injury. That makes this case an exceedingly sad one.
3. It is always a very difficult case when a motor vehicle accident causes death, because naturally you ask, ‘Well, how did that happen? Is someone not responsible?’ And sometimes you can answer that question and say, ‘Yes, they are, and they should be punished’. And if that answer is given positively, then they are.
4. In this case, the evidence discloses that Mr Watling was driving his motor vehicle, a red Ford, in a straight line along Tuggeranong Parkway prior to the vehicle leaving the road. The point at which it did so is clearly indicated by the prosecution evidence.
5. It would seem that prior to that point Mr Watling’s vehicle had either performed or had commenced to perform a deviation in a counter-clockwise direction. The evidence of one of the passengers was that there was thereafter an application of brakes, the mechanical evidence is the brakes were working satisfactorily. That may or may not have exacerbated the rotation to the vehicle. In any event, it is apparent that the rotation of the vehicle was arrested by the guard railing, which would also have straightened the vehicle around to 180 degrees if it had not already reached that point.
6. The impact with the guard railing was severe. The guard railing was ripped out and the vehicle continued on and collided with a small tree.
7. Whether the injury to Ms Matthews was occasioned by the initial impact with the guard rail or with the tree or a combination of both is difficult to say, except that it looks more likely that it was caused by the initial impact with the guard rail. That initial impact caused the rear passenger door to be dented in to a considerable degree and it seems very likely, as the medical reports indicate, that it was that impact that brought about a situation where Ms Matthews suffered, in effect, not only injuries but the sequelae of the injuries being what is sometimes called shock. And it was that shock that brought about her death.
8. The question is whether it was due to the negligent driving of the motor vehicle that the collision occurred with the guard rail. There are two features upon which the Crown relied in opening and perhaps a third which would have, if accepted, been supportive of a case that there was negligence.
9. The first was the accelerating and slowing of the vehicle as it progressed along Tuggeranong Parkway. While that might be unusual driving, and the purpose of it might or might not be apparent, it is impossible to relate it to a vehicle losing control on the roadway unless, of course, the vehicle accelerated to a very high speed or slammed the brakes on very suddenly to arrest the forward movement of the vehicle. Otherwise, it is simply an accelerating and slowing down. That cannot conceivably alter the course of the vehicle.
10. The second is that there was on the rear wheel a tyre with a tread depth below the legally-required level. That is referred to in the certificate given by the vehicle examiner. But again, it is not related in any way to the collision. It is not suggested the tyre deflated suddenly as it might if faulty, or that it was below the appropriate pressure as it might be if it had been leaking.
11. Certainly the vehicle tyre had been repaired in a manner which Mr Lynch, an authorised repairer, suggested was not the way he would have done it. He indeed thought it was inappropriately repaired. That was because a different kind of patching was used than would normally be used for a vehicle tyre of that kind if you were going to repair it at all. It was his view that it ought to have been replaced rather than repaired.
12. However, as Mr Lynch pointed out, the patch was still in place. It did not detach, blow or leak. It was professionally and properly done, though who by is a mystery. It is possible that it could have been done by Mr Lynch’s offsider, maybe it was done by someone else. Be that as it may, there is nothing to causally relate the patching of that tyre to the accident which occurred.
13. Nor is there anything to relate the depth of tread on the tyre with the accident. Indeed, there is no opinion given to that effect. I was told that there were tests done on the roadway to determine the coefficient of friction, I presume, between the vehicle being tested and the roadway. If there was anything relevant determined by that testing it was not in evidence. I hence assume that there was nothing of any relevance thereby determined.
14. So we are left with the question of whether there was excessive speed. Was there something else that the driver did or failed to do that would explain why the vehicle deviated as it did?
15. The evidence does not disclose that the vehicle was travelling above the speed limit. The evidence of Mr Stokes indicates the contrary. The evidence of Ms Hippisley is consistent with that, but she was not asked precisely what speed her vehicle was doing. Mr Marks said that his vehicle was travelling between 80 – 90km/hr and, even while this acceleration and deceleration was going on, not above 85km/hr. He said he was careful as to that because he was concerned that his vehicle, being a front wheel drive vehicle, might aquaplane if he were going too fast given the weather conditions.
16. So I have no evidence that suggests that Mr Watling was travelling at an excessive speed.
17. There is also no evidence to suggest that he was attempting some manoeuvre on the roadway that would have caused his vehicle to deviate. It is true that it was raining and the roadway was wet. Whether it was also slippery is perhaps questionable. Certainly there were rut marks in the 50 metres or so prior to the point where the vehicle left the roadway that had in the centre of them what was described as “bitumen bleeding”, or bitumen rising to the surface above the gravel which has been compacted below it. It is apparent from the photographs that might render that particular surface more slippery than other areas of the roadway.
18. But again, there is no evidence to suggest that that was uneven as between left and right wheels or that it was in any way so slippery as to explain why it was that a vehicle travelling in a straight line, not at an excessive speed, would deviate in an anti-clockwise direction on that surface.
19. The driver himself was, according to the evidence of passengers, alert. He was certainly sober because the testing of his blood sample afterwards revealed a zero result for drugs and alcohol. There was nothing to suggest he was being inattentive.
20. So there is nothing in the way in which the driver was driving which would seem to explain why it was that the vehicle deviated in the anti-clockwise direction that it did.
21. No doubt one could speculate about a cause, but if one did they would have to acknowledge that it is speculation. We simply do not know. That is the state of the evidence at the end of the prosecution case. It was an accident, and in a criminal proceeding one cannot say from the fact that there was an accident that it must have been caused by an unexplained act of negligence. There must be positive evidence of what that act of negligence was. In this case, there is none.
22. So while it is an unsatisfactory result that the accident is unexplained, that is the situation I am left with. On the charge before me, that the accused negligently drove on a road, namely Tuggeranong Parkway, a motor vehicle, namely a Ford sedan registration (NSW) AMX 78M, and that driving occasioned death to Terry Anne Matthews, I have to rule that there is insufficient evidence to establish at a prima facie level that the vehicle was then being negligently driven.
23. In that context, ‘negligently’ means a falling short of the standard applicable to the average or ordinary road user driving a motor vehicle of that kind in the circumstances in which it was being driven. Without going into any question as to what degree, if any, of negligence might be required, there is simply no evidence of any negligence. So by reason of that I direct a verdict of acquittal.
24. Although it is a trial by judge alone I must direct myself as if I were a jury to enter a verdict of not guilty. Mr Watling, you are acquitted accordingly.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 15 August 2007

Counsel for the plaintiff: Mr T Murray
Solicitor for the plaintiff: ACT Director of Public Prosecutions
Counsel for the defendant: Mr K Archer
Solicitor for the defendant: David Fletcher & Associates
Date of hearing: 14 and 15 August 2007
Date of judgment: 15 August 2007