Fatal MVA

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"Anthony C----, you stand indicted under that name for that you, on the 14th of September, 1999, at West Hoxton in the state of New South Wales, did drive a vehicle, namely a Mitsubishi rigid truck registered ----, in a manner dangerous to other persons, whereby the vehicle was involved in an impact, as a result of which the death of Grace D---- was occasioned. How say you: are you guilty or not guilty?"

The indictment was read out by the judge's associate, a gaunt faced woman who had long brown hair and wore glasses.

"Not guilty." The accused, Tony, stood in the wooden dock facing the bench. He was an overweight man in his mid 30's and wore a dark green business shirt and suspenders.

The judge's associate read out three more charges: dangerous driving occasioning the death of Jessica D----, dangerous driving occasioning grievous bodily harm to Johnny D---- and dangerous driving occasioning grievous bodily harm to Natalie P----. All four charges related to the same traffic accident.

It was October 2001, and we were in the Darlinghurst Supreme Court. This was a district court matter, but as all of the district courts were full the trial was being held here. I was one of the jurors who had been chosen. The judge's associate had randomly selected our juror numbers from a box and neither the crown prosecutor nor the defense barrister had challenged anyone. They appeared unconcerned about who was on the jury.

The judge spoke to us first. He was a middle aged man who looked and sounded kindly. He said that the crown was bringing the charges on behalf of the community. He told us that while he was the judge of the law, we were the judges of the facts. He reminded us that we were under oath to give a true verdict according to the evidence that would be presented. We were not to be biased against the accused because he faced multiple charges as he was entitled to a presumption of innocence. The trial was expected to take three days, and while it was in progress we weren't talk to anyone about it or look up information about it in newspapers or on the Internet. We weren't to look up the outcomes of similar cases either.

The crown prosecutor (referred to as 'Mr Crown') stood up to give his opening address. He had short brown hair and a moustache and wore glasses. His instructing solicitor, a middle-aged man wearing a suit and tie, sat beside him. The prosecutor explained everything clearly and tried to reassure us. He said that while many of us wouldn't have served on a jury before, we didn't need any special skills to do it. We should use our common sense and our experience of life. In everyday life we sometimes had to piece together information, decide whether to believe what a person told us or decide who to believe when different people told us contradictory things. He asked us to look at the witnesses' demeanour and body language as well as listen to what they said, and decide how much of their testimony to accept. He pointed out that he had to prove the accused's guilt beyond reasonable doubt; the accused didn't have to prove his innocence. The prosecution didn't need to prove that every word the witnesses said was true as different people observing the same incident would give different accounts.

Due to the nature of the case, it was expected that we would return the same verdict for each charge. There were four essential elements that had to be proven. First, that the accused was the driver of the truck. Second, that the truck had been involved in an impact with another vehicle. Third, that as a result of the impact a person had died or suffered grievous bodily harm. Fourth, that at the time of the impact the accused had been driving in a dangerous manner. That was an objective test - he needn't have done it intentionally or even have been aware that he was doing it. Mr Crown outlined the facts of the case and the evidence that the witnesses would give.

Tony's barrister then stood up to give his opening address. He was a large man who looked imposing in his black gown and wig. His solicitor, who sat next to him, was older, grey haired and bearded, and wore a suit and tie. He watched us as the barrister spoke. The barrister acted sad and concerned as he said that this was a tragic case since young children had been killed and injured, but we must judge it by the facts and not let ourselves be swayed by our emotions. We should set aside feelings of sympathy for the victims or even any feelings or preconceptions that we might have about truck drivers. He then outlined Tony's defense, which depended on an interesting legal point.

Mr Crown called his first witness. A court official left the room and returned with a clean shaven young man wearing a suit and tie. He walked past us to sit at a table in front of the bench. He looked very serious and alert.

"Do you swear by almighty God that the evidence that you shall give will be the truth, the whole truth and nothing but the truth?"

"I do."

"Please give your full name, rank and station."

"My name is Brian Jeffrey B----, my rank is senior constable of police and I'm attached to the Crash Investigation Unit based at Kingsgrove."

"At 9:40 am on Tuesday, the 14th of September, 1999, did you attend the scene of a motor vehicle collision at the intersection of Cowpasture Road and Nineteenth Avenue, West Hoxton?"

"Yes, sir."

"Did you see that a Mitsubishi Torqueliner truck registered ---- had collided into the rear of a Holden Gemini registered ----?"

"Yes, sir."

Mr Crown continued asking him a number of questions from his notes. He did most of the talking, leaving the senior constable with little to say besides "Yes, sir" and "That's correct, sir".

The accident had happened in a developing residential area, and the speed limit at the time was 80 km/hour. The Gemini, described as 'fawn coloured', had stopped behind five other cars on Cowpasture Road: a black Holden Commodore sedan, a white Ford Fairmont sedan, a brown 4WD Holden Jackaroo, and a silver coloured Mitsubishi Magna. The Magna had been waiting to turn right into Nineteenth Avenue. The weather had been fine and sunny, visibility was good and the road surface was dry. The senior constable said that the truck had only braked after it had collided with the Gemini. He could tell this by examining the skid marks on the road. He could also tell that the truck hadn't swerved by looking at the direction that the wheels were facing and the damage profile.

A police officer from the Engineering Investigation Unit had inspected the truck and it had then been taken to the RTA heavy vehicle testing station at Wetherill Park for further examination. It had sustained minor damage from the collision: its driving lights had been broken, a headlight had been broken and its bumper bar had been damaged. It had been in fifth gear (for speeds greater than 50 km/hour) at the time of the collision. It had a few minor mechanical problems but none that would have contributed to the accident. Its steering, brakes, brake lights etc were all working properly.

On the 8th of October senior constable B---- had taken Tony to Campbelltown police station and charged him with the dangerous driving offenses.

Mr Crown submitted sets of photographs of the accident scene taken by the senior constable and other police. He first showed them to the defense barrister and solicitor, then gave them to a court official. The senior constable verified them and then they were passed to the judge's associate. The judge admitted them as evidence and instructed them to be labelled exhibits A, B, C etc. We were told that we could look at them later.

The crown prosecutor called his next witness, senior constable Brett E---- from Green Valley police station. He was older, balding, and wore a uniform. He had also arrived at the accident scene at 9:40 am and found Tony sitting on the grass outside a display home being comforted by a few people. He asked Tony, "Are you all right?" and Tony said, "Yes." Then he asked, "Are you the driver of the truck?" and Tony said "Yes" again. The senior constable breathalysed him and found that the result was negative.

Tony's barrister: "You say that he was too distraught to answer any further questions. Was it the case that he was sobbing uncontrollably?"

Senior constable E---- looked uncomfortable. "Yes."

Another police officer, senior constable Brett S---- from the Crash Investigation Unit, took the stand. He had talked to Tony in the foyer at Green Valley police station then interviewed him. Tony was also given a drug test, which was negative.

A court official played a videotape of the interview, and we were handed copies of the transcript. The video was shown on a screen mounted on the wall of the courtroom, facing the jury box.

"On Tuesday, the 14th of September, 1999. The time is 11:36 am Eastern Standard Time. This is a record of interview at Green Valley police station, 195 Wilson Road, Green Valley, with Anthony C----. I'm senior constable S----."

Another police officer, senior constable F----, was also present, as was Tony's employer, Scott D----. The two police officers sat on either side of a table with their notes in front of them. Tony sat at the end of the table facing the video camera. Scott sat on a chair in the corner and said very little.

"Tony, do you agree that there are no other persons present in the room other than the ones who have just identified themselves?"

"Yes."

"Do you agree that prior to this interview commencing I told you that I intended to ask you further questions about this matter and that you're not obliged to answer them?"

"Yes."

"Do you agree that I told you that my questions and any answers given by you will be electronically recorded?"

"Yes."

The interview lasted 26 minutes. Tony sat with his arms folded looking unhappy, and when he talked, he sounded resigned. When senior constable S---- said, "Tony, could you tell us your version of how the accident occurred?" he replied, "I have no idea." He said that the last thing he remembered was listening to an interview with the actor Henry Winkler on the radio station Triple M, and the next thing he remembered was sitting in the truck after the collision looking down at the remains of the Gemini. He vaguely remembered trying to call for an ambulance on his two way radio.

He had held a driver's license for 16 years, including an MR license for heavy vehicles for the last five years. He had been working for his current employer for two months, driving six and eight ton delivery trucks. That morning he had picked up a truck at a colleague's house in Minto and was on his way to Wetherill Park, driving the same route that he took every day. He had left at 8:00 am, was due at the depot at 9:00 am, and wasn't in a hurry as the trip usually took 45 minutes. He had been driving for about 25 minutes when the accident occurred. His memory of the trip was vague - the last thing he remembered well was turning off Denhem Court Road, shortly before reaching Cowpasture Road. He said that there must have been traffic on Cowpasture Road as it was always fairly busy. He didn't remember adjusting any controls in the truck and denied using the CB, two way radio or his mobile phone before the accident. He remembered being helped out of the truck by 'a male and a female' after the accident, then later being breathalysed and taken to the police station.

"How much sleep did you have last night?" senior constable S---- asked.

"About six or six and a half hours. I got up at 6:00 am," Tony replied.

"Is that your normal sleeping pattern?"

"Yes."

"How were you feeling this morning?"

"Fine."

The last time Tony had drunk any alcohol was after dinner the previous night, when he had drunk two glasses of wine and a glass of apple cider. The only medication he was on was a course of antibiotics (Penicillin). He he had forgotten to take a pill that morning so the last one he had taken had been around midnight. He had seen the doctor recently for the flu, but it had been 'a long time' since he had had a full medical checkup. His eyesight was fine.

"Did you have anything on your mind this morning?" senior constable S---- asked.

"A million things," Tony said.

"Anything in particular that was bothering you?"

"I was worried about my daughter who's in hospital, but that's been for the last five weeks."

Senior constable S---- already knew that his daughter was a new baby, presumably from an earlier conversation. She had been born 13 weeks premature and had been in hospital since then. We later heard that Tony had four other young children too, aged 7, 8, 10 and 12. He lived with a woman named Roselyn in a defacto relationship. They lived in St Andrews.

When the two police officers had finished questioning Tony, senior constable S---- turned off the tape recorder but left the video camera running, and left the room. As our transcripts had been taken from the audio tape, they left out the following conversation. Senior constable F---- pointed out that the video camera was still on. Tony's employer, Scott, mentioned that when he had received Tony's call on the two way radio he had tried to ring him on his mobile, and the phone records would show that. The senior constable said that he would check it later. Tony said that his mobile must still be in his bag in the truck but Scott said that they couldn't get it right now as the police had to leave everything as it was. Tony eventually said, "I'm going to shut up now." He looked depressed.

Senior constable S---- reappeared, escorting another police officer into the room, and then left with senior constable F----. The new arrival turned the audio tape back on and said that he was sergeant John O----, the officer in charge of the station for the time being. He read out a few questions from a sheet of paper.

"Have you made this recorded interview of your own free will?"

"Yes."

"Has any threat, promise or inducement been held out to you to give the answers you have given today?"

"No."

"Do you have any complaints about the manner in which you were interviewed?"

"No, I have not."

He left again. Senior constable S---- reentered the room.

"The time is now 12:03 Eastern Standard Time. This interview is now concluded." The video tape ended.

The trial stopped for a lunch break and one of the court officials, Sue, led us out to a jury room. Like the other officials, she wore a light blue shirt and dark blue pants. One of her duties was to look after the jurors. She told us that she had once been a juror herself, on a trial that had lasted for six months, and had then applied for her current job. She provided us with sandwiches and fruit juice then left us. There was a buzzer that we could use to summon her or one of the other court officials if we needed to.

There were two jury rooms, both of which had a large table, chairs, a fridge and a sink. We sat in one of them to have lunch and some of the jurors went in the other one to smoke. People weren't supposed to smoke inside the building but Sue had told us that she would overlook it. There were toilets available. A door from the hallway led outside, but we weren't permitted to leave the building during the lunch break.

The judge had asked us to choose a foreperson. None of us wanted to do it, but we chose the person who was already sitting in the foreperson's seat. He had done jury duty before. He described it as a lottery that he hadn't wanted to win. Most of the other jurors didn't want to be there either. I was glad that I had been selected, but was saddened by the nature of the case.

After we had eaten, we had a look at the photographs that had been submitted as evidence. The first set, comprising twelve photos, showed the road; including markers laid down by the police, skid marks and gouge marks; and the rear of the truck. The second set showed the interior of the truck. The third set showed a side view of the truck and the Gemini. Other photographs showed the other cars involved, which had sustained minor to moderate damage. There were also aerial photographs of the accident scene taken from a police helicopter. Lastly there was a set of photographs taken by senior constable Brian B---- in November 1999. He had arranged for a marked police car to stand in the spot that he estimated the Gemini had been in prior to the collision and had taken photographs as he walked along the road towards it, to simulate what Tony had been able to see.

The photos of the accident scene were labelled 'Fatal MVA' for 'Motor Vehicle Accident'. They had been taken after the victims had been removed from the car, but were still very disturbing. A mobile crane had lifted the front of the truck off the Gemini, which had been crushed severely. Its roof had been cut off by the emergency services to allow the occupants to be removed. A blanket and a child's blue tracksuit lay on the ground nearby, bloodstained.

A woman and her daughter had been sitting in the front seats of the Gemini and her other three children had been sitting in the back seat. Given how badly the car had been crushed, we were surprised that one of the children in the back had survived. He had been very lucky.

We discussed what we knew of Tony's defense from his barrister's opening address. The defense was based on a medical condition that Tony suffered. Most of the other jurors disbelieved it. I was sceptical, but wanted to hear more of the evidence before reaching a conclusion.

When the court resumed, the crown prosecutor called his next witness, a plump young woman named Kelly E----. She looked nervous. She told the court that she had been driving her car on the morning of the accident and had given way to Tony's truck at an intersection then followed it north along Cowpasture Road. She said that Tony appeared to have been driving normally. He had maintained a constant speed of 80 km/hour along the straight parts of the road (she had checked her speedometer). He had slowed down to navigate a roundabout and again a short time later to go around a bend to the left. He hadn't slowed or swerved at all before the sudden collision, and she knew that he hadn't even attempted to brake as his brake lights hadn't turned on.

When the collision had occurred she had swerved off the road and stopped on an embankment. She had helped Tony out of the truck and stayed with him until the police arrived. He had been too upset to talk.

Tony's barrister didn't dispute any of her evidence.

The next crown witness was a truck driver named Glen M----. He was heavily built, bearded and had a moustache. He looked nervous and seemed reluctant to give evidence. He said that he had been a professional driver for 20 years and had been travelling southwards along Cowpasture Road in his semi-trailer that morning, with his kids. The road was congested, as usual. He had noticed the line of cars stopped behind the car waiting to turn right into Nineteenth Avenue, and then saw Tony coming up behind them in his truck. He claimed that Tony wasn't paying attention to the road.

"I saw the driver was looking down to his left and was leaning that way as if he was adjusting his radio or something."

Tony had glanced up at the road briefly then looked back down again. Glen had been worried, and as he passed the truck had reached for his air horn, which hung from his roof, to warn Tony but had missed it and then seen the collision in his rear view mirror. He hadn't seen Tony's brake lights turn on, or any other indication that he had braked. Glen had stopped his semi-trailer and directed traffic away from the area for a while but left before the emergency services arrived. A few days later he rang the police to tell them what had happened.

Mr Crown asked Glen to demonstrate what Tony had been doing, and he showed us that Tony's head had been turned almost to his left shoulder and he had been reaching downwards with his left hand.

Tony's barrister asked Glen a lot of questions - how far away he was from Tony when he first saw him, how far away he was when Tony allegedly glanced up at the road and then back down, how long he had been watching Tony for and how far away he was when he saw the collision in his rear view mirror. Glen gave consistent answers.

Mr Crown then called another witness, a thin, grey haired man named Todd P----, who looked and sounded very nervous. He had been driving a Toyota Hi-Ace van southwards along Cowpasture Road at the time of the accident, going from his workplace in Fairfield to Campbelltown. He said that southbound traffic had been light but northbound traffic had been heavy. He had seen Tony's truck travelling at 70 - 80 km/hour. Tony had both hands on the wheel but was looking down to his left instead of paying attention to the road. Tony looked up a moment before hitting the Gemini.

"He had this shocked expression on his face as he realised that he wasn't going to be able to stop in time - "

At this, Tony's barrister stood up to say gruffly, "I object, your honour."

Mr Crown said, "Yes, I won't pursue it, your honour."

The judge leaned forward to tell Todd, "You can only give evidence based on what you saw and heard, not on what other people may have been thinking."

Todd agreed, and added, "I saw the horror in his eyes."

He said that he had slowed and swerved to the left to avoid the collision. He had been almost level with the Gemini when the truck had crashed into it with a loud explosion, and glass had hit his windscreen. He had stopped his van further down the road, walked back and helped Tony out of the truck. He sat with him for a short time but Tony was in shock and too upset to talk. He mentioned a lady who had sat with him too. A crane had arrived and then the police, fire and ambulance services had arrived. He had given the police his details then left, and later on had given them a statement.

When Tony's barrister cross-examined him, Todd was very nervous and the barrister said, "It's Ok, just relax," a few times. Todd said that when he had first seen Tony it had been at a distance of approximately 50 metres, but he wasn't sure as he wasn't good at judging distances. He agreed that it could have been up to 100 metres. He had only seen Tony for a second or two.

"Do you wear glasses or contact lenses?"

"No."

The barrister seemed to be trying to give the impression that Todd couldn't have seen Tony very well from that distance. However, after the trial had ended for the day, I walked down Oxford Street towards the train station and looked at buses and trucks that passed by. I'm slightly short-sighted but I could see the drivers clearly from 50 - 100 metres, and a second or two was long enough to see what they were doing. The next morning, I looked at buses and trucks again while walking south-east along Oxford Street at 9:00 am - only half an hour later in the morning than the accident had occurred, and at nearly the same time of year. Again, I didn't have any problem seeing the drivers unless the sun was shining on their windscreens and causing reflections, and nobody had suggested that that had been the case.

I found Glen and Todd's testimony convincing, and having thought about the case overnight and in the morning on the way to the courthouse, I was fairly convinced that Tony was guilty. When I met with the other jurors I found that a number of them thought the same.

The next witness was Scott D----, the managing director of the transport company that Tony worked for. He was middle aged and had short brown hair. He looked uneasy. He said that Tony was a casual employee who drove various trucks and had driven that particular truck six to twelve times before. He said that on the morning of the accident he had received a call on his two way radio.

"It was garbled. I couldn't understand any of it. I heard screaming in the background."

He realised that Tony was out in the truck and thought it might be him trying to call, so he tried to ring him on his mobile, but didn't get an answer. He had then run 000 to ask if an accident had been reported in the area that Tony was in. He drove out to West Hoxton and found Tony sitting outside the display home with other people. Tony was distressed and upset and had told him that he didn't remember what had happened. Scott had stayed with him until the police arrived and then gone with him to the police station.

Mr Crown submitted Tony's timesheet for the week before the accident. The accident had occurred on a Tuesday. Tony hadn't worked on the Monday or on the previous weekend. When we looked at the timesheet later, it showed that he had worked seven to nine hours a day the previous week, starting at around 8:00 am.

Next Mr Crown called a police officer to the stand, senior constable Timothy M----. He was overweight and wore a uniform. He looked very tired, but was calm and relaxed. He was the only witness who showed no sign of nervousness. He was a draftsman from the Photography and Drafting Unit. He had completed a terrestrial photogrammic survey of the accident scene, which was 3D photography using two cameras. From that he had prepared a scale plan of the scene, which Mr Crown submitted as evidence. The diagram showed the stretch of road where the collision had occurred, the skid marks from the truck and the Gemini, the positions of all of the vehicles after the collision, and the gradient of the road.

Mr Crown then submitted a number of written statements that the police had taken from witnesses. He said that there was no dispute about their testimony and that they weren't required to appear in court. The judge's associate read out the statements. Each one began with: 'This statement made by me accurately sets out the evidence which I would be prepared if necessary to give in court as a witness.' It also said that the witness understood that she/he could be prosecuted for saying something that wasn't true or was known to be false.

The first statement was dated October 4th, 1999 and was from the mother who had been driving the Gemini, 33 year old housewife Patricia L----. It was fairly brief and I suspected that it had been edited. She said that she had been taking her children to school that morning. Her daughter Natalie, aged eleven, had been sitting in the front seat beside her. Her other daughters Grace (aged five) and Jessica (aged two) had been sitting in the back seat and her six year old son Johnny had been sitting in-between them. She didn't remember the accident itself:

'The next thing I remember is coming up to a line of cars that was stopped and I stopped behind them.

The next thing I remember is being stuck in my car. I could move my feet but that's all.

Then I remember lying in the ambulance and being taken to hospital where I was treated for injuries to my head and arm.'

It had been the two girls sitting in the back seat, Jessica and Grace, who had been killed. Their stepsister Natalie and their brother Johnny had survived but had been seriously injured. We were never told the details of their injuries. Tony apparently hadn't been charged over Patricia's more minor injuries.

The next statement was dated 21st September, 1999 and was from Angela P----, the driver of the silver Magna that had been waiting to turn right into Nineteenth Avenue. She was a 39 year old secretary who had been on her way to work in Cabramatta that morning. She had her seven year old son and five year old daughter in the car with her. She heard a loud bang and then the 4WD behind her hit her car. She got out and walked back and saw the Gemini crushed under the truck. Tony was still sitting in the truck, slumped over the steering wheel.

The next statement was from the driver of the 4WD, 44 year old Karen A----. It was dated 16 September, 1999. She simply said that she had been on her way to Liverpool that morning. She had been waiting behind the Magna when she heard a huge bang and then her car was pushed forward with great force.

Next was another statement dated 16 September, 1999, from Kylie S----, the 24 year old driver of the Ford Fairmont. It was her friend's car and she was driving it to Green Valley. Her two year old son was with her. She said that she was familiar with Cowpasture Road as she drove it every day to take her kids to school. She had been waiting behind the 4WD for 30 seconds when her car was hit from behind quite severely and pushed forward. She heard somebody calling for a fire extinguisher. She got out of her car and saw Tony's truck on top of the Gemini.

The next statement was dated 13 September, 1999 and was from Robert M----, a 27 year old small business owner and the driver of the Holden Commodore. He had been on his way to his office that morning. He had heard two loud bangs then had been hit from behind, and was pushed forward, hitting the car in front. He was in shock. He heard people screaming. He got out and saw the Gemini with the truck 'half on top of it'.

Next was a statement dated 6 November, 1999, from Gianna K----, a 31 year old woman who had been taking her daughter to school that morning. She had driven past the accident scene soon after the collision had occurred. She had stopped in Nineteenth Avenue and rung 000 to call the police, fire and ambulance services. She had also rung for a crane which she had seen in a yard near her house. She then left to take her daughter to school, but returned to the accident scene afterwards, and saw Tony (or, as the statement said, 'a large male person') sitting on the ground crying. She asked him if he was ok and he said he was fine. She asked him his name, then took him to the grass outside a display home. They didn't talk any more until Scott and a police officer arrived. Scott had asked Tony what had happened, but he said that he couldn't remember, he only remembered listening to the radio station Triple M.

'He asked how the people in the car were but we didn't tell him the full story.'

Of all the witnesses who made statements or appeared in court, Gianna was the only one who mentioned calling for help on 000.

The witnesses' statements were all consistent with each other. All agreed that the traffic that day had been moderate to heavy and that the weather was fine and visibility was good.

Mr Crown submitted a statement of agreed facts which said that Tony, after consultation with his lawyer, had admitted that his truck had been involved in a collision and that as a result of the collision two people had died and two others had suffered grievous bodily harm. These were two of the 'essential elements' of the dangerous driving charges.

Tony's barrister told the court that he only had one witness to call, a doctor, but said that he wouldn't be available until 2:30 pm, and apologised for the delay. Although it was only noon, the judge called an early lunch break. As it was going to be a two and a half hour break, we were permitted to leave the building, but were reminded not to talk to anyone about the case.

We left for lunch, but returned to the courthouse at 1:30 pm to sit in the jury room and discuss the evidence. Somebody noted that as it was October 17th, it was Tony's 36th birthday today. (He had given his date of birth during the videotaped police interview). A woman said that this was no way to spend a birthday, sitting in a courtroom facing a possible prison sentence. Many of us believed that he would be sent to jail if convicted. One person mentioned the NSW government's anti-drink driving ad, where a man is sentenced to four years' jail for killing a child. Someone else thought that Tony could be sent to jail for five or six years.

We examined the scale diagram drawn by the police officer and tried to work out the distances between the roundabout, the left bend in the road and the accident scene. After I had gone home later that day, I checked a street directory to do my own calculation of the distances: 600 metres from the roundabout to the bend in the road and 200 - 250 metres from the bend to the area where the collision had occurred. Driving at 80 km/hour, it would take approximately 27 seconds to drive from the roundabout to the bend in the road and 9 - 11 seconds to drive from there to the area of the collision. This matched the estimate of the other jurors.

We examined the photographs of the interior of the truck taken by the police, and discussed what Tony could have been doing just before the collision. Tony's barrister had said, in his opening address, that there was nothing in the truck, however, the photographs showed a bag and some other items on the floor in front of the passenger seat. They could have fallen onto the floor during the collision, when everything would have been thrown forward.

Someone suggested that Tony could have been reaching for the Coke bottle shown in the photo, and perhaps trying to unscrew the cap. Another suggestion was that he had been trying to find the controls to adjust the seat, as he had mentioned during the police interview that the seat was higher on the left side than the right, and that he wasn't sure where the controls were to adjust it. Another juror suggested that he had been trying to reach his mobile phone, which was in another bag in the 'dog box' behind his seat. Somebody else thought that he had dropped the microphone for the two way and was trying to retrieve it. The cassette radio and CB were mounted above the windscreen, so he couldn't have been adjusting them. I thought he had been fiddling with the air conditioning controls, which were on a panel below the dashboard, to the left of the steering wheel.

When we returned to the courtroom, Tony's barrister called an expert witness, an associate professor from a university. The barrister read out several pages describing his qualifications and experience, phrased as questions, e.g., "Is it true that you hold a PHD in... from...?" The professor had extensive experience in sleep disorder research and study and had written numerous book chapters and conference papers on the subject.

The barrister then asked the professor to read out a report he had written in February 2000. Tony had seen a GP for a checkup and had then been referred to the Campberdown Sleep Disorder Clinic, which had performed several tests on February 1st, 2000. The professor had reviewed the results. The clinic had discovered that Tony suffered from moderately severe sleep apnoea, which the professor explained was breathing difficulties during sleep resulting in poor quality sleep. The test that proved this was one in which Tony slept at the clinic while being monitored by electronic equipment which measured his brain wave activity. He had slept for about six hours, his usual sleeping time.

The clinic had also performed a 'Maintenance of Wakefulness test' during which Tony had sat in a comfortable chair in a dark, quiet room and had been asked to stay awake for 40 minute periods. He had fallen asleep after 10 minutes on average. Again, electronic equipment was used to monitor his brain wave activity to determine that he really was asleep.

The clinic had given Tony a third test, the 'Epworth Sleepiness Scale'. It was simply a form that Tony filled out in which he estimated how likely he was to fall asleep under different circumstances e.g. watching TV, lying down on a bed in the afternoon or having a conversation with someone. None of the questions asked about driving. Tony had rated himself as having a moderate or high chance of falling asleep in many of the scenarios and his total score was 14/24, above average.

The professor's conclusion in his report was: 'It is a reasonable likelihood that the accident on 14 September 1999 was the result of a fall asleep episode secondary to previously undiagnosed sleep apnoea.' He said that it was possible that the flu had aggravated Tony's sleep apnoea at the time, but this was 'speculative'. He added that Glen and Todd's testimony 'do not necessarily contradict' a fall asleep accident, as what they saw could have been Tony's head and body starting to slump as he fell asleep at the wheel.

If this was true then Tony was innocent of the dangerous driving charges because from a legal point of view he wasn't driving the truck while falling asleep. Involuntary actions aren't crimes.

During the trial Tony hadn't looked at the jurors at all, but had sat in the dock appearing unhappy and depressed. However, as the professor spoke he looked us over thoughtfully, presumably hoping that we would accept the professor's testimony - his only hope.

After the professor had finished reading out his report, Tony's barrister asked him further questions. However, the professor sounded less certain than he had when he had written the report. All he would say was that Tony 'might' have fallen asleep at the wheel, that the situation was unusual but 'could possibly happen'. He seemed reluctant to commit himself to a definite answer. He mentioned that there was no specific posture that a person went into when falling asleep, and that a person driving wouldn't necessarily swerve but could continue in a straight line. He also said that a person could still hear sounds while drifting off to sleep, such as a radio playing, and could be unaware that he had briefly fallen asleep.

The crown prosecutor then cross-examined him. He accepted that Tony suffered from sleep apnoea but didn't believe that he had fallen asleep at the wheel as a result. The professor admitted that little research had been done into sleep apnoea, unlike other sleeping disorders. There was a condition called sleep narcolepsy which could cause a person to suddenly fall asleep at any time, but the tests showed that Tony didn't suffer from that.

The tests had been performed three months after the accident, and Mr Crown asked if Tony's sleeping problems could have become worse during that time, aggravated by stress and anxiety. However, the professor said that stress and anxiety were associated with insomnia and heightened awareness during the day.

Mr Crown questioned the accuracy of the tests. "Could someone influence the result of the Maintenance of Wakefulness test by ignoring the instruction to stay awake and going to sleep instead?"

"Yes, but that is something I would associate with a person who suffers from sleep apnoea," the professor replied. "A normal person can't just fall asleep whenever they want to."

"But if someone did suffer from sleep apnoea and wanted to exaggerate the results of the test, could they, when they felt a wave of sleepiness come upon them, ignore the instruction to stay awake and allow themselves to succumb to it?"

"Yes. The accuracy of the test does depend on the patient's cooperation," the professor admitted. He added, however, that he would expect that a person attempting to 'cheat' on the test in a situation like Tony's would be nervous and anxious and therefore less likely to fall asleep than normal.

As for the Epworth Sleep Scale, the professor agreed that it was purely subjective and that a person could lie when answering the questions.

According to the professor's report, Tony had told him that he had never had problems with sleepiness while driving and had never had any sleep related accidents, even though he had driven 10 - 12 hours a day at times, and sometimes finished working at 10:00 pm or 11:00 pm. The only problem he reported was 'automatic driving' once at the end of an unusually long shift, and that was seven years ago. When Mr Crown mentioned all this, the professor talked about how people often suffered from sleep apnoea for years without realising it, and thought that how they felt was normal, not realising how badly it affected them or how much better they could feel with treatment.

Tony had told the professor that he still didn't remember how the accident had occurred. He had stopped work for a while afterwards, then returned to work, initially as an offsider but later as a driver.

Tony's barrister told us that Tony had voluntarily handed in his license on the 1st of March 2000 and had not driven since. He submitted a receipt from the RTA which confirmed it. This was his last piece of evidence. Tony himself was not testifying. The court closed for the evening.

I thought about the case at home. I suspected that after the accident, Tony's solicitor had suggested that he have a medical checkup, discovered that he suffered from sleep apnoea, and said, "Ah, we can use this as the basis for a defense." I had the impression that at best the professor didn't know whether Tony had fallen asleep at the wheel, and at worst he was lying. It seemed likely that he had only written that conclusion in his report to help Tony out. Perhaps he hadn't expected to be asked to testify in court. I thought it likely that Tony had handed in his license on advice from his lawyer in order to support the story.

I was unhappy that evening as I believed that we would return a guilty verdict the next day and thereby send Tony to jail. He could spend several years behind bars for an accident caused by a few moments of inattention. His barrister, in his opening address, had been concerned that we might be biased because we felt sorry for the victims, but a number of us felt sorry for Tony as well. As one of the other jurors said, this was a terrible case no matter which way we looked at it. Whichever verdict we returned, it would affect many people: Tony, his wife, his five young children, Patricia L----, her husband, her two surviving children etc. Our decision could also influence the outcome of similar court cases in the future.

The trial resumed the next morning. Tony had dressed up more, wearing a white business shirt and a tie. The crown prosecutor called his own expert witness, another associate professor who was also an expert in sleep disorders. He worked at the same university as the first one, so the two must have known each other. As the defense barrister had done, Mr Crown ran through a list of the professor's qualifications and experience, phrased as questions. However, he spent less time on it than the defense barrister had. Either the second professor had achieved less or the crown prosecutor didn't consider it important to go into as much detail. He had many notes in front of him, but appeared not to read out everything.

Mr Crown asked the professor to read out a report that he had written on the 9th of October, 2001, not long before the trial began. Tony had been asked by the prosecution to go see the professor and had been told that the results would be used as evidence in court. Tony had seen him on the 28th of September, 2001. The professor's report was based on the consultation, a fact sheet from the police and the brief of evidence (witness statements, the other professor's report etc).

The professor said that Tony had appeared sincere, honest and cooperative. He had told the professor that ever since the accident he had difficulty sleeping at night, frequently waking up drenched in sweat. He was tired and sleepy during the day. He suffered from depression and had been gaining weight. At the time of the accident he had weighed 120 kg; now he weighed 154 kg and was grossly overweight. He had been prescribed Efexor for depression and also used Ventolin for asthma. He had not had any follow-up consultations or treatment for sleep apnoea. He said that he still couldn't remember how the accident had occurred.

The professor briefly mentioned Tony's work history. He had finished school when he was 18 and worked in the banking industry, then did shift work in hospitality, then worked as a sales representative and then as a truck driver. He claimed not to have driven at all since the accident (although he had told the other professor that he had returned to driving for a short time). He had left the transport company a month after the accident and had later attempted to start his own takeaway business, which had failed. He had been unemployed for six or seven months.

The professor had examined the test results from February 2000 and had asked Tony to repeat the Epworth Sleepiness Scale. The result was 12/24, which he said was slightly inconsistent with Tony's claim that his sleeping problems had become worse over time. However, it was normal for a person redoing the test to have a score that was two or three points different from the last time.

The professor agreed that Tony suffered from moderate sleep apnoea. The Maintenance of Wakefulness test results were abnormal as the average person fell asleep after 30 - 35 minutes, and the minimum was generally 15 - 18 minutes. However, he thought that the test was irrelevant to the likelihood of falling asleep while driving as the circumstances were too different.

He listed a number of risk factors for fall asleep accidents:

Chronic sleepiness.
Acute sleep loss.
Disrupted sleep patterns due to shift work.
Time of day (fall asleep accidents are more likely to occur later in the day).
The number of hours driven per day and distance driven per year.
Driving for long periods without breaks.
Medication.
Alcohol.
Sleeping disorders such as sleep apnoea.

He believed that only the last factor applied in Tony's case. Research was still ongoing as to how much sleep apnoea increased the risk of accidents. The professor's conclusion was that it was 'extremely unlikely' that Tony had suffered a fall asleep attack. He avoided using the term 'micro sleep episode', just as the first professor had, although the defense barrister used it frequently.

The professor explained that there were a number of different stages of sleep. A person first became drowsy and entered stage one sleep, where they started to disengage from the environment, but still noticed some things. Their head could slump a little, but their body didn't. Later, they might not remember having been asleep. If they continued to sleep then after an average of five minutes they progressed onto stage two, in which they lost their postural muscle tone and their body slumped. Afterwards, they would be aware that they had been asleep. There were deeper stages of sleep as well.

Tony's barrister cross-examined the professor, and the professor agreed that a person who suffered from a sleeping disorder could progress from stage one to stage two sleep more rapidly than normal, such as in one to two minutes, or possibly in less than a minute. He also admitted that he couldn't completely rule out the possibility of Tony having fallen asleep at the wheel.

That was the end of the evidence. The crown prosecutor summed up his case. He pointed out that we might never know what Tony had been doing just before the accident but all we needed to be convinced of was that he wasn't paying attention to the road, and that under the circumstances that constituted dangerous driving.

Tony's barrister then gave his summary. He said that Tony had been cooperative and hadn't tried to hide anything. Although the professor hadn't been able to prove that Tony had fallen asleep at the wheel, it was a possibility, and if there was significant doubt in our minds about Tony's guilt then we must return a verdict of not guilty.

The judge then gave a brief summary of all of the evidence in the case. He said we mustn't let the fact that Tony hadn't testified influence our judgment, as there could be a number of reasons for an accused person not to testify. He also talked about expert witnesses and pointed out that they could give opinions in court whereas ordinary witnesses couldn't, and could repeat information that others had told them even though this would normally be hearsay. He said that it was up to us to decide how much weight to give to each witness' testimony and each piece of evidence submitted. Then he asked us to retire to consider our verdict.

Sitting around the table in the jury room, we were all somber. Somebody suggested that each of us say which verdict we wanted to return and why. Nine people, including myself, believed that Tony was guilty, two were undecided and one, Ron, believed that Tony might have fallen asleep at the wheel and therefore wanted to return a verdict of not guilty.

We discussed the case for a while and re-examined the evidence: the photos, scale diagram, witness statements, transcript of the police interview and the two professors' written reports. Unfortunately, we only had our own notes of the testimony of the witnesses who had been called to the stand, so we couldn't check exactly what they had said. Several of us, including Ron, watched the video of the police interview again to look at Tony's body language and listen to his voice as he answered the questions. Despite what the judge had said, several jurors were negative about the fact that Tony hadn't taken the stand. "Why isn't he testifying if he has nothing to hide?"

After three hours we went around the table again. This time, the two people who had been undecided wanted to return a guilty verdict. Nobody else had changed their mind so Ron was the only person who wanted to return a not guilty verdict. In NSW, a jury's decision has to be unanimous.

It was now 4:00 pm and the court was closing for the day, so the judge called us back in and instructed us to return the next morning.

The next day we all met in the jury room again. Although we had thought about the case overnight, none of us had changed our minds. Ron said that he had asked himself if he was kidding himself by thinking that Tony might be innocent, but he wasn't; he really did believe that Tony might have fallen asleep at the wheel.

We went back into the court room and told the judge that we were unable to agree on a verdict. He said, "I do have the power to discharge you if you are unable to reach a unanimous decision. However, experience has shown that most juries are able to reach a unanimous decision if given sufficient time. Therefore, I instruct you to retire again to continue your deliberation."

Ron told us that three points struck him as being particularly important. One was that Tony claimed not to be able to remember the accident. Ron thought this could only be because he had fallen asleep. Some people suggested that he was lying to protect himself, but Ron said, "I couldn't see any sign that he was lying." Some of us believed that the memory loss was due to shock. We asked our foreperson to write a note to the judge to ask whether this was possible. The judge called everyone back into the court room only to say, "There has been no evidence presented on this matter so you must not speculate on it."

Ron was also impressed by the first professor's report. He gave more weight to that than to the second professor's report because the first professor appeared to have more experience in studying sleeping disorders. However, as one of the other jurors pointed out, the body of his report didn't seem to support his conclusion. Also, the fact that he was highly qualified and experienced didn't mean that he was honest. I gave more weight to the eyewitness' testimonies, particularly Glen's and Todd's.

The third point that Ron considered important was the 10 seconds (approximately) that it had taken Tony to drive from the bend in the road to the accident scene. He said that 10 seconds was a long time for somebody to keep their eyes off the road. When another juror pointed out that the second professor had said that it took longer than 10 seconds to fall asleep, Ron said that Tony could have been sleepy earlier and driven around the roundabout and bend in the road automatically, then fell into a deeper sleep as he reached the straight part of the road. He believed that when Glen saw Tony's arm out to the side it was because his body was starting to slump (as the first professor had suggested) and that he partly woke up and returned his hand to the wheel just before Todd saw him.

The jurors gradually lost interest in the discussion as the same points were debated over and over. Nobody had any new ideas to contribute. Some of the jurors went into the other room to smoke and others sat in chairs in the corridor. People discussed the case in twos or threes instead of in a group. A couple of people talked to Ron individually, trying to convince him to change his mind, but he didn't. He told me that he found the trial very stressful. He worked as a counselor in a hospital and said that he often talked to people who were dying, but he would prefer doing that to jury duty any day.

Another juror said to me that if the defense barrister had called in the professor simply to provide 'reasonable doubt' then he had succeeded - at least in Ron's case.

At 2:00 pm we returned to the court room and our foreperson handed a note to the judge to say that we weren't able to agree on a verdict and that further deliberation wouldn't change the situation. The judge discharged us. I wasn't looking at Tony at the time but one of the other jurors said, as we walked out, "You should have seen the look on that poor guy's face."

I asked one of the court officials what would happen and she said that there would be a retrial. Another jury would decide his fate.


PART TWO: THE RETRIAL
Tony was retried in February 2002, this time in the Downing Centre District Court. I watched most of it from the public gallery, as did other people: senior constable Brian B---- (who had charged Tony), Tony's brother, Tony's wife Roselyn, Patricia L---- and her husband John D---- (the parents of the children who were killed) and various reporters. Tony appeared happier than when I had last seen him, and chatted to his brother before the trial began. He looked more serious once it started. The same crown prosecutor tried the case as last time, but he had a different instructing solicitor, a woman this time. Tony had the same barrister and solicitor.

There was some discussion with the judge before a jury was selected, and again later while the jury was out of the room. Tony had been on unconditional bail. The judge continued bail but with the conditions that Tony arrive at the court house with his lawyer 30 minutes before the trial started each day, stay there for 30 minutes afterwards and go straight home unless consulting his lawyer.

The crown prosecutor told the judge that this was a retrial. The only matter in dispute was whether or not Tony had fallen asleep at the wheel but, as he put it, 'the groundwork had to be laid' first. He also mentioned that the witness' statements had been edited by agreement with the defense barrister, to leave out irrelevant details. The prosecutor and barrister had some legal argument about which expert witness should appear first. Apparently, they had had the same discussion at the last trial. The two witnesses ended up appearing in the same order as last time.

I thought that both sides tried harder to convince the jury at this trial.

The RTA had recently started a TV campaign to raise awareness of micro sleep episodes, which could occur in anyone, even people who didn't suffer from sleeping disorders. Tony's barrister mentioned the ad in his opening address, so that it sounded more reasonable to suggest that Tony had suffered one.

The crown prosecutor submitted as new evidence a videotape taken by senior constable Brian B---- on the 12th of January 2002. He had returned to Cowpasture Road with an officer from the highway patrol and recorded a video as they drove from the roundabout to the intersection with Nineteenth Avenue.

When Tony's barrister cross-examined senior constable B---- he asked if he knew that Tony suffered from sleep apnoea and that sufferers could have micro sleep episodes without being aware of it. The senior constable did, and said that it was one possible factor he had considered.

Tony's barrister mentioned that Tony had no previous criminal convictions. He had received six speeding tickets over the 16 years that he had been driving: in 1985, 1987, 1992, 1994 and 1999. All of these had been while driving a car, and were for minor speeding offenses.

The crown prosecutor submitted the same photos of the accident scene as at the last trial except for three which he left out for some reason. This time as he submitted each set of photos they were passed to the jury to look at right away.

When the two eyewitnesses Glen M---- and Todd P---- took the stand, Tony's barrister attempted to ask each of them whether Tony could have been asleep when they saw him just before the accident. However, the judge disallowed the question. "How can you expect him to answer that?" The barrister did persuade Glen to say that he hadn't seen Tony's eyes, and was pleased when Glen described Tony's head as 'rolling' up and down. He asked Glen if Tony had been 'slumping' to the left, but Glen insisted that he had been leaning forward and looked as if he was fiddling with something.

When the barrister called his expert witness, he submitted a copy of the professor's resume as evidence as well as reading it out. The judge initially questioned it ("Is there any dispute about his qualifications?"), but decided to allow it. The barrister also submitted 12 copies of the professor's report and the sleep test results, so that each juror would have an individual copy to look at. Upon prompting from the barrister, the professor mentioned that a person could fall asleep with his eyes open. Presumably, this was in case Glen or Todd had claimed to have seen Tony's eyes open at the time. He also mentioned a 'head snap', where a person starting to fall asleep could suddenly jerk his head up again. Overall, however, the professor was even less convincing than he had been in the first trial. He looked and sounded unhappy and obviously didn't want to be there. The crown prosecutor, when summing up at the end, called him 'defensive'.

The second professor, called by the crown prosecutor, appeared confident, professional and objective. I had the impression that he had no personal interest in convicting or acquitting Tony. He agreed with many of the points made by the first professor about sleep apnoea, but again said that he believed it was unlikely that Tony had fallen asleep at the wheel. He also explained that it was not possible for a person to drive around a roundabout while in stage one sleep, and 'difficult or impossible' to drive around a bend. The crown prosecutor submitted 12 copies of the professor's resume, this time without question from the judge, and 12 copies of his report.

The prosecutor did a better job of questioning the expert witnesses about the different stages of sleep and gave a better summary of his case than last time. He pointed out that if Tony had been in stage one sleep just before the accident then his body wouldn't have slumped, so Glen's testimony contradicted that. If he had been in stage two sleep he wouldn't have heard the radio playing and he would have realised afterwards that he had been asleep. "Which was it, stage one or stage two sleep? You can't have it both ways."

It was now Friday afternoon. The judge summarised the case, talking at length. Although he tried to be objective, from the way he spoke I got the impression that he believed Tony was guilty. He said that he wouldn't send the jury out for deliberation now as the experience of the courts was that a jury sent out on a Friday afternoon would be in a hurry to reach a verdict, and questionable verdicts had been returned in the past. He asked them to return on Monday morning, and reminded them not to talk to anyone about the trial on the weekend.

On Monday morning the jury retired to consider their verdict. I hadn't talked to anyone while the trial was in progress, but Tony's wife, Roselyn, came up to talk to me in the foyer of the court house. She mentioned that she and Tony had had another baby, who was now nine months old. She said that she just wanted the trial to be over, one way or the other. She and Tony had had to move house after being threatened, their kids had been victimised at school and they had gone bankrupt. "We've lost everything."

Roselyn had heard that the jury at the last trial had been hung at 11 to 1, as the judge's associate had said so, presumably because another juror had mentioned it. She didn't know which way it had gone, so I told her. She said that Tony's barrister had expected that the jury would only take one or two hours this time. She rejoined Tony and the barrister in the cafe nearby. I noticed senior constable Brian B----, Patricia L---- and John D---- sitting together at another table on the other side of the cafe.

One of the reporters, Sarah from the Herald, was waiting around outside the courtroom and I talked to her briefly. She agreed that it was a very sad case. I told her a little of how the last trial had gone.

After an hour everyone returned to the courtroom as the jury had reached a verdict. Two armed sheriff's officers, both women, stood in the courtroom, presumably ready to take Tony away to jail if necessary. A chaplain, also a woman, sat in the public gallery. Sarah and a number of other reporters were present.

The judge's associate said, "How say you: is the accused guilty or not guilty of the charge that on the 14th of September, 1999, in West Hoxton in the state of NSW he did drive a vehicle, namely a Mitsubishi rigid truck registered ----, in a manner dangerous to other persons, whereby the vehicle was involved in an impact, as a result of which the death of Grace D---- was occasioned?"

The foreperson said, "Guilty."

The judge's associate said, "You say that the accused is guilty of the charge that..." and repeated the details. "So says your foreman, so say you all."

The same verdict was returned for the other three charges.

Roselyn started to cry, and the chaplain comforted her. I couldn't see Tony's face very well, but his expression didn't seem to change. Perhaps he had expected it.

The judge thanked the jury for their service and discharged them. The crown prosecutor submitted an antecedent report which confirmed that Tony had no previous criminal record, and submitted a copy of his driving record. The defense barrister asked for sentencing to be postponed so that he could prepare a pre-sentence submission. The judge agreed, and continued Tony's bail, with the condition that he go to the NSW Probation Service office for the report.

Tony was sentenced on April 11. These days a person is jailed for dangerous driving causing death except in exceptional circumstances, such as an accident caused by momentary inattention or misjudgment. However, the judge said, "Momentary inattention does not describe adequately the serious disregard by the offender of his obligations as a driver of that vehicle on that occasion." He did, however, say that special circumstances, such as Tony's 'unresolved trauma' over the accident, required a reduced jail term. He sentenced Tony to a maximum of two years' jail, but ordered that he be released on parole after one year.

Sarah, in her newspaper article the next day, described the scene: 'A father of six with no previous criminal history took the hand of his weeping partner, kissed her gently and said goodbye before being led to prison...'


PART THREE
Upon request from the attorney-general, the director of public prosecutions appealed against the leniency of the sentence. On the 30th October Tony appeared in the Court of Criminal Appeal and his sentence was increased to a maximum of four years' jail.


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Infinite Improbability Drive

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