Regina v Tyson Will – Hunt DCJ (Unreported) 3 February 2020

In this matter Greg Walsh represented Tyson Will in the most tragic of circumstances.

On Tuesday 24 July 2018, Tyson Will drove a motor bike on a farm situated at Delungra, approximately 90 km south of Moree.

Tyson, who was 32 years of age at the time, had been brought up in the farming life, from a very young age. He had been riding motor bikes on his parents’ farm since he was 6 years of age.

Tyson was happily married with three (3) beautiful children, namely Harper, Hunter and Montana.

The farm, which was owned by Tyson’s father, consisted of 3,000 acres and operated as a cattle and cropping farm. Tyson’s father, Ivan, had noticed that some cattle had got out of a paddock, no doubt due to the chronic drought conditions. At about 9.00 am Tyson decided to take Harper and Montana over to see “Pop”. Harper and Montana were placed in front of’ Tyson, on a Honda motorbike. Neither child was wearing a helmet or protected clothing.

The motorbike had been in use for about thirteen (13) years and was not registered, as is the case with such motorbikes, as used on rural properties.

Tyson drove the motorbike over to see Pop and Harper decided to go with Pop on his four-wheeler, but Montana wanted 10 stay with her father. Montana was the “apple of her father’s eye”. They were inseparable.

Tyson’s father suffers from osteoarthritis and the cattle that had got out needed to be directed through a gate. Tyson’s father, Ivan, couldn’t operate the gate because of his medical condition and so Tyson rode the motorbike back with Montana in front of him, at a speed of approximately 15 — 20 km/hour. As he rode the motorbike, its front wheel came in contact with a rock, which was behind a tuft of grass, causing Tyson and Montana to be dislodged from the motorbike. Tyson instinctively cradled Montana to protect her from the fall and he landed on his shoulder. Tragically, Montana’s head hit the ground and she suffered a fractured skull and died instantly. Tyson immediately applied CPR, which was ongoing for nearly 50 minutes. The ambulance officers arrived, but there was nothing that could be done to save Montana, who was 2.5 years of age.

Tyson and his devoted wife, Courtney, together with Ivan, did everything possible to resuscitate Montana. Tyson co-operated with the Police and participated in an electronically recorded interview and he was charged with ‘manslaughter’ and ‘driving a motorbike in a dangerous manner, contrary to Section 52A(1)(c) of the Crimes Act’.

The devastation to Courtney, Tyson and Montana’s brother and sister, was truly devastating. Montana was deeply loved and her death occurred in the circumstances of a tragic accident.

Tyson Will instructed Greg Walsh to act on his behalf, in these tragic circumstances. Greg attended upon Tyson at the farm and took a view of the area where the subject accident occurred, Contrary to the Police facts, it was a relatively level paddock and there were only small amounts of underlying granite in the paddock.

The Prosecution’s case was based upon the condition of the motorbike, which to say the least, was not in a good condition. It was typical of farm equipment utilised in the very circumstances that had occurred in this case.

Tyson had informed the Police, in his recorded interview, that there had been a previous occasion when he had come in contact, whilst riding on the motorbike, with a rock and had suffered injuries. He told the Police that he did not wear a helmet, nor did the children wear one, because of the fact that it was often over 100 degrees and if the children were with him on the motorbike, he would always only ride at a very moderate speed.

Greg Walsh qualified Dr McDonald, a well-known expert, who provided a comprehensive report. His expert opinion was that the effect of the condition of the motorbike did not, in any way, contribute to the subject accident. He was of the opinion that the speed at which Tyson was travelling was moderate, and that the rock was partly embedded in the hardened soil of the paddock and covered by a tuft of grass.

Greg Walsh was successful in having the charge of ‘manslaughter’, which was laid against Tyson Will, dismissed and he ultimately pleaded ‘guilty’ to the charge contrary to Section 52A(l)(c) of the Crimes Act of ‘driving in a dangerous manner occasioning the death of Montana’.

Tyson was sentenced by His Honour, Judge Hunt of the District Court at Armidale, on 3 February 2020. His Honour, in a very comprehensive judgement, reviewed the authorities in respect of the offence to which Tyson pleaded ‘guilty’. There was a large number of witnesses who spoke of the tremendous good works of Tyson within the Delungra community and in particular as President of the Delungra Cricket Club and his willingness to assist other members of the rural community in the tragic circumstances of the terrible drought that had affected so many Australians in rural areas. It was clear that Tyson Will was a very good man, who was absolutely devoted to his wife and children and whose heart and spirit had been broken by the tragic circumstances of this accident.

His Honour, Judge Hunt, imposed an intensive Correctional Order, conditional upon Tyson Will’s good behaviour for a period of two (2) years.

Tyson is now, in these tragic circumstances, doing his very best to support Courtney and his children and there’s not a moment that goes by that he doesn’t think of his beloved daughter, Montana.