Director of Public Prosecutions v Andrew (Ruling)
[2024] VCC 1538
•9 September 2024
| IN THE COUNTY COURT OF VICTORIA AT HORSHAM CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00214
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK HENRY ANDREW |
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JUDGE: | BLAIR | |
WHERE HELD: | Horsham | |
DATE OF HEARING: | 6 September 2024 | |
DATE OF RULING: | 9 September 2024 | |
CASE MAY BE CITED AS: | DPP v Andrew (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1538 | |
RULING
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Subject:CRIMINAL LAW - RULING
Catchwords: Dangerous driving causing death – no case application – no case application upheld – circumstantial evidence
Legislation Cited: Crimes Act 1958 (Vic); Criminal Procedure Act 2009 (Vic);
Cases Cited:Doney v The Queen (1990) 171 CLR 207; Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410; DPP v Roberts (Ruling No 13) [2022] VSC 321; Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410, 415; R v Cengiz [1998] 3 VR 720; Case stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323; R v CLD [2015] NSWCCA 114; R v A2 [2019] HCA 35; Georgiou v The Queen [2022] VSCA 172; DPP v Orchard (Ruling No 1) [2022] VSC 601; DPP v Iliopoulos & Ors (Ruling No 3) [2016] VSC 132; Case Stated by Director of Public Prosecutions (No. 2 of 1993) (1993) 70 A Crim R 323; DPP v Perry [2023] VSC 270; DPP v Paulson [2023] VCC 703; Paulson v R [2024] VSCA 188; The Queen v Baden-Clay [2016] HCA 35
Ruling: No case submission upheld and jury directed to enter verdicts of acquittal on both charges
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. O’Doherty | Office of Public Prosecutions |
| For the Defendant | Mr M. Habib | Docherty Legal |
HER HONOUR:
1Jack Andrew (‘the accused”) is charged with two charges of dangerous driving causing death. On 3 September 2024 the accused was arraigned and pleaded not guilty to both charges. A jury of twelve was empanelled on this day.
2The prosecution case against the accused is that at approximately 10.47am on 28 February 2023 a truck driven by him collided with an Alfa Romeo hatchback occupied by Donald and Lynn Kerr. Tragically, as a result of this collision Mr and Mrs Kerr died at the scene.
3Evidence was given during the trial by 3 road workers, Jason Day, Justin Tucker and Danny Slorach. Further, evidence was given by another driver Roslyn Donasco and police members LSC Emma Taylor, Det Sgt Dr Jenelle Hardiman and DLSC Leigh Nicholds.
4The following exhibits were tendered: a bundle of 24 photographs; photograph 1 marked by Justin Tucker on 25 April, 2023; a bundle of BWC footage captured by LSC Emma Taylor on 28 February 2023 – (this footage contained a version of events detailed by the accused); and a video walk through of the scene conducted by the informant DLSC Leigh Nicholds on 28 February 2023.
5At the outset it is important to note that there is no evidence that the accused was affected by drugs or alcohol, sleep deprivation, tiredness, poor eyesight, or inattention through the use of a mobile phone. There is also no evidence of any poor driving behaviour by the accused prior to the moment of the collision. Further, speed was not a contributing factor in the collision.
6The weather on the day was fine and there was no evidence of mechanical defect or a defect in the roadway that contributed to the collision. The collision occurred on a curved roadway, where roadworks were being performed. There is very limited detail of the characteristics and measurements of the scene in evidence.
No case submission
7At the close of the prosecution case Mr Habib, counsel for the accused made an application, that on each charge of dangerous driving causing death, there is no case for the accused man to answer.
8In order to prove the offence of dangerous driving causing death the prosecution must prove the following three elements:[1]
1) That the accused was driving a motor vehicle;
2) That the accused drove dangerously; and
3) That the dangerous driving caused the death of another person.
[1] Crimes Act 1958 (Vic) s 319.
9Mr Habib submitted there was no case to answer in relation to the second and third elements. That is, in relation to whether the accused drove dangerously and whether the dangerous driving caused the death of another person.
Legal principles no case submission
10The making of a no case submission is permitted pursuant to s 226(1)(a) of the Criminal Procedure Act 2009.[2]
[2] Criminal Procedure Act 2009 (Vic) s 226(1).
11The test to be applied for a no case submission is as follows:[3]
if there is evidence, even tenuous or inherently weak or vague which can be taken into account by the jury in its deliberations, and that evidence is capable of supporting a verdict of guilt, the matter must be left to the jury for its decision. Or to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that taken at its highest, it will not sustain a verdict of guilty.
[3] Doney v The Queen (1990) 171 CLR 207.
12A judge assesses a ‘no case’ submission by taking the prosecution evidence at its highest and drawing all inferences that are most favourable to the prosecution case that are reasonably open.[4] The test for a ‘no case’ submission is different to the test on appeal as to whether a verdict is ‘unsafe or unsatisfactory’.
[4]Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410.
13In a case, where the prosecution relies essentially on inferences, the trial judge is not entitled to direct an acquittal where at the end of the prosecution case he or she considers that there is still open, and not excluded, a reasonable hypothesis consistent with innocence.[5] Rather, in such a case, the test, that the trial judge must apply, is whether the jury could rationally conclude that any inference or hypothesis, consistent with innocence, is not reasonably open on the evidence. In applying that test, it is important to bear in mind that the drawing of inferences is essentially the function of the jury, as the sole judges of the facts in the trial.[6]
[5] Ibid, 416.
[6] R v Cengiz (1998) 3 VR 720, 721 (Ormiston JA), 735 (Harper AJA).
14Those principles were conveniently summarised by King CJ of the Court of Criminal Appeal of South Australia in a case stated by DPP (No 2) of 1993 as follows:[7]
If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.
[7] DPP (No 2) of 1993 (1993) 70 A Crim R 323, 327.
15In the recent case of DPP v Roberts (Ruling no 13), Kaye JA stated:[8]
Apart from the evidence given by Debs, the prosecution case against the accused man, on both charges, is essentially circumstantial. In such a case, the judge should not take the case from the jury on the basis of a conclusion that, at the close of the prosecution case, the prosecution has failed to exclude an hypothesis consistent with innocence. The judge may only take such a case away from the jury if on the evidence there remains open an inference consistent with innocence which could not be rationally excluded by the jury.
[8] DPP v Roberts (Ruling No 13) [2022] VSC 321, [25]; Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410, 415; R v Cengiz [1998] 3 VR 720, 735 (Harper AJA); Case stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323, 327 (King CJ); R v CLD [2015] NSWCCA 114, [46]–[48] (Meagher JA, Simpson and Schmidt JJ).
16In R v A2, Kiefel CJ and Keane J stated the test as follows:[9]
Application of the Doney test requires assessment of the sufficiency of the evidence taking the prosecution evidence (including the answers of prosecution witnesses to cross-examination) at its highest and drawing all inferences favourable to the prosecution case that are reasonably open. If the case is circumstantial, it is not to the point that the court may consider an hypothesis consistent with innocence to be reasonably open on the evidence. The question is whether a jury, taking the evidence at its highest and drawing all reasonably open inferences that are most favourable to the Crown, could rationally exclude that hypothesis. Subject to contrary statutory provision, the court does not need to consider evidence that contradicts, qualifies or explains the prosecution’s case or that supports the accused’s case. That requires consideration of the evidence.
[9] R v A2 [2019] HCA 35, [91].
Legal principles of dangerous driving
17The Prosecution must prove, beyond reasonable doubt, that the accused drove in a manner that is dangerous to the public having regard to all the circumstances of the case.[10] That is, that the accused’s driving involved a serious breach of the proper management or control of a vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured.
[10] Crimes Act 1958 (Vic) s 319(1).
18The Court of Appeal recently reviewed the authorities that apply to consideration of the legal concept of driving in a manner dangerous to the public in Georgiou v The Queen and summarised the applicable principles as follows:[11]
[11]Georgiou v The Queen [2022] VSCA 172, [13]-[21].
Section 319(1) of the Crimes Act provides that a person is guilty of dangerous driving causing death if the person drives a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case and the dangerous driving causes the death of a person. The critical issue at trial was whether the prosecution had proved beyond reasonable doubt that the applicant drove in a manner that was dangerous, causing her car to collide with Mr Varvodic.
The test is objective and involves a serious breach of the proper conduct of a motor vehicle upon the road, that is ‘so serious as to be in reality and not speculatively, potentially dangerous to others’. The objective question is whether the manner of driving has the necessary quality of being dangerous to the public.
The concept of dangerousness in s 319 of the Crimes Act:
“… imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.”
In one sense, driving, even when carefully undertaken and fully compliant with applicable rules, will always carry some risk to the driver, passengers and other road users. Driving is not free from hazard and the realisation of an ordinary risk of driving does not mean that the driving must have been dangerous. The mere fact that there has been a collision, and in the context of s 319(1) of the Crimes Act, the collision has resulted in the death of a person, does not mean that the driving was dangerous. For the driving to be dangerous, ‘there must be some feature [of the driving] which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention.’
The observation in Jiminez that the defining feature must be framed by reference to the risk that the driving entails, rather than whether it constitutes a want of care, was reinforced by the Court's later observation in the same judgment that:
“But it should be emphasized, and it must always be brought to the attention of the jury, that the condition of a driver must amount to something other than a lack of due care before it can support a finding of driving in a manner dangerous to the public.”
If the trier of fact concludes that the driving was careless, and goes no further, then the critical question on which the offence turns will not have been determined, namely whether the prosecution has proved beyond reasonable doubt that the driving was dangerous. That is why Barwick CJ said in McBride that ‘it is not enough that the vehicle as driven by the [driver] has caused death or injury and the [driver] was negligent, even in some glaring respect.’ A lack of care does not always translate into an increased risk of harm over and above that which ordinarily inheres in driving a motor vehicle, including by person who exhibit a degree of carelessness.
Although dangerous driving may, and often will, be associated with a want of care, negligence is not an element of the offence. As was said in King, particular driving may be undertaken with care and skill but remain dangerous for the purpose of s 319. It follows that the fact that the driving was associated with a degree of carelessness on the part of the driver or that the collision could have been avoided by the exercise of greater care does not suffice to make out a charge of dangerous driving. For that reason, to ask whether the driving was careless may be a distraction from the true enquiry as to whether the driving was dangerous.
A further illustration of the distinction between negligence and dangerous driving can be seen in the judgment of McLure JA in McPherson. In that case, McLure JA described as a ‘fundamental misunderstanding of the law’, a prosecution submission that a driver who contravened the give way road rule resulting in a collision with a vehicle that had right of way, must be driving in a manner that was dangerous to the public. Her Honour was not suggesting that failing to give way could not constitute dangerous driving, self-evidently it may. Rather, it is necessary to ask how the driving affected the risk of harm to road users and members of the public when compared with the proper conduct of a motor vehicle.
Inattention by a driver to the task at hand, may be dangerous. That is because of the risk that inattention poses to the ability of the driver to safely control the vehicle, including by responding to an unexpected change in traffic conditions. Inattention may prevent the driver from steering a true course or braking to avoid a collision, and be dangerous for that reason. However, the level of attention required at any given point is not necessarily constant: it may depend on the terrain, environment and traffic conditions. Indeed, ‘[i]t may be that in some circumstances where particular attention is required to the road and to other road users, momentary inattention will result in a manner of driving that is dangerous within the meaning of the section.’ On the other hand, it could not be suggested that momentary inattention is relevantly dangerous when driving well within the speed limit, along a suburban road, in good conditions and in light traffic. Equally, momentary inattention is not uncommonly associated with driving and may not produce the type of risk necessary to establish dangerous driving. (footnotes omitted).
19The following summary of the authorities was recited by Lasry J in DPP v Orchard:[12]
(a) The speed or manner in which the accused drove must have involved such a serious breach of the proper management or control of the vehicle as to be in reality and not speculatively, potentially dangerous to others. This test will only be satisfied if the speed or manner of driving posed a real, and not just speculative, danger to other members of the public who may have been in the vicinity.
(b) The mere fact that a collision has occurred is not conclusive evidence of a serious breach. The law does not require drivers to act with perfect hindsight, or assume that for every accident there must be a remedy.
(c) It is not enough that the vehicle as driven has caused death and the accused was negligent, even in some glaring respect.
(d) It is difficult to see how a jury, properly directed, could hold that an accused was driving at a speed or in a manner dangerous to the public, unless the evidence justifies the inference of a fairly high degree of indifference to the safety of others. (citations omitted).
[12] DPP v Orchard (Ruling No 1) [2022] VSC 601, [35].
The evidence in the trial
20The evidence of the three road workers Mr Day, Mr Tucker and Mr Slorach was that on 28 February 2023 they had been tasked with several jobs along the Wimmera Hwy between Horsham and Murtoa. These jobs involved use of a grader to fix the shoulder of the road. These places had been assessed by someone previously and the details were provided to the three workers shortly before they set out for work that day.
21The last of the jobs they had to complete was on a stretch of road not far from Murtoa on the Horsham side. Mr Day was driving and operating the grader. He drove to the position of the last job and waited for Mr Tucker and Mr Slorach to attend and set up the road work signs. Mr Slorach was the passenger in the VicRoads work truck. He gave evidence that he and Mr Tucker set the signs up 2kms apart as was required by safety guidelines. Mr Day gave evidence that there were lights operating on the grader. Mr Slorach gave evidence that there were lights operating on the VicRoads truck. These lights were on an agitator board on the roof of the truck, hazard lights at the rear and LED lights near the number plate. Mr Tucker could not recall if the hazard lights on the truck were operating that day but he said the lights on the agitator board were in operation.
22Mr Day gave evidence that he had a 50 metre section of road to grade. He had graded the area and was cutting off at the time of the collision. He was working at a speed of about 2 to 3km on the shoulder of the road near the left hand side fog line. The work truck was parked about 100 metres behind him. He was looking down, working in the grader which was very noisy. He noticed a truck slide off in the grass on the opposite side of the road and he saw a Tarago virtually at the same time as the truck. The Tarago was in front of the truck. He immediately stopped his grader although it would have still be moving forward when he saw the truck veer off. He said he virtually stalled the grader but in re-examination he said he turned the front wheel in a bit.
23Mr Tucker gave evidence that he was driving the VicRoads truck. He said he parked the truck about 50 metres from the grader. After about 10 minutes a car (the Tarago) drove past and slowed down. He estimated the Tarago to be doing 80km per hour when he first saw it come past the door of his truck. Around this time he saw a car coming from the opposite direction a fair distance away. Mr Tucker gave evidence that a truck that came along the road beside them and shook his truck from side to side. He was not able to say how far behind the car this truck was, but he estimated that it was doing 100km per hour and was going faster than the car. He observed the truck to close pretty quickly on the car and the truck had nowhere to go. The truck swerved to the right and Mr Tucker said he knew it would hit the oncoming car and it did. He rang 000 from his truck. Sometime after the collision Det Nicholds showed him a photo of the scene and asked him to indicate where he had parked the work truck. He indicated that the truck was parked somewhere between the 2 points he indicated on the photo. This was tendered and marked exhibit B. In cross-examination he agreed the grader had not blocked the path of the Tarago and the grader was working at about 2km per hour.
24Mr Slorach gave evidence that he and Mr Tucker were parked in the VicRoads truck about 30 to 40 metres behind the grader. He said there was no need for them to move the truck as the grader was only working on a 50 metre section. He said the grader was working at around walking or jogging speed, under 5km per hour. He noticed 2 to 3 B doubles go past. He saw the Tarago come past. Initially he did not estimate its speed but later said he thought the Tarago could have been going 50 to 60kms per hour. He said then all of a sudden another heavier vehicle came flying past and shook the truck. He estimated that the Tarago would have been near the front of the grader or halfway past the grader when the truck came past. Mr Slorach said the truck that came past was going faster than the Tarago and faster than most other traffic that had passed them that day. He did not estimate the speed of the truck but saw it come past and heard the noise and said it was all over. He had not seen the oncoming car. Under cross examination he agreed the grader could have been going 2 to 4km per hour, the two B Doubles he saw come past had not had to swerve to get around the grader as the running lane was clear and he did not see any brake lights on the Tarago.
25Roslyn Donasco gave evidence that she had driven to Murtoa in her Tarago vehicle, to comfort her daughter who was having some difficulties at school. Ms Donasco said that she was on her way home when she saw a roadworks sign that was just past the middle of the bend near Delahunty’s Road. The sign said roadworks ahead two kms ahead. When she got close to the sign she saw the work truck ahead and as she came out of the bend she saw the grader. Ms Donasco said the grader was moving and was working the edges of the road, it was past the work truck and past the dip in the road. She gave evidence that she did not see lights on the work truck because the sun was right in front of her. It was her estimate that as she came around the bend she was going 80 to 90km per hour and that she continued to slow as she thought she would see a 40km speed limit sign. When she came around the bend she had not looked in her rear vision mirror and had not noticed the truck behind her.
26Ms Donasco gave evidence that she slowed down progressively as she approached the grader. She saw a white car in the distance coming from the opposite direction it was travelling toward her, it was in the right hand lane and it was travelling fast. Ms Donasco tried to assess if she could get past the grader safely and in her assessment as a new driver, on the second year of her P plates, she did not believe it would be safe for her to pass without going over the middle white line and into the right hand lane. As a result she continued to slow down and pressed her brake having made the decision to let the white car pass. She pressed her brake until almost stopping close but before the grader. At around this time she noticed the truck, she braked hard just behind the grader, the truck was coming fast, she estimated its speed to be 80km per hour. When asked what happened she said “I did press the brake hard and waited for the – with the intention of letting the white car pass through and then, as I stopped, I think the car stopped. As I pressed the brake hard, I look in my rear-view mirror and I’ve seen the truck behind me and it was quite close. And after that, it was really fast what happened. The truck overtook me and that’s when I look in my right hand side mirror as it was overtaking my car, and – and the white car was coming fast, and then the truck and the white car collided head on, right beside my driver’s seat side.
27During cross examination Ms Donasco said she hadn’t seen whether the work truck lights were on, as the sun was glaring a bit. She said that the first time she saw the truck behind her was when she was at the grader and when she was going slow. Ms Donasco said a number of times that she was braking progressively as she came around the curve and that she slowed down bit by bit. She agreed that she was not very confident to pass the grader and she believed it was not safe to do so because she needed to keep some distance from it to avoid being hit by rocks. She estimated that at the time she went past the work truck she was going 40 to 50km per hour and she slowed then to the speed of the grader by progressively braking. She did not agree that she stopped before the grader and before she saw the truck behind her. However, Ms Donasco did agree several times that she told police in her first statement that she came to a complete stop. Further she agreed that she thought she was at fault because she heard the accused man say that she had stopped in front of him. When making her second statement to the police Ms Donasco agreed she was worried as she thought she might be in trouble. In her second statement she said the grader wheels were on the white fog line, she was worried to go past the grader because of the oncoming car and she did not come to a complete stop but she was nearly stopped as she was going as slow as the grader.
28In answer to questions in re-examination Ms Donasco said that she did not see the truck at all before she got to the roadworks and that the first time she saw the truck on that day was when she pushed the brake and was about to stop. She said it was instinct for her to look in the rear mirror before she came to a complete stop.
29The next witness was LSC Emma Taylor. She gave evidence of being the first police officer on the scene and she detailed the actions she took including activating her body worn camera. Footage from her body worn camera was played to the jury and tendered as an exhibit. This captured the scene shortly after the collision and her conversations with the accused man.
30The prosecution called expert evidence from Det Sgt Dr Jenelle Hardiman. Dr Hardiman detailed her extensive qualifications and experience which included having been with the major collision reconstruction unit since 2004 and having attended and reconstructed 1600 fatal collisions or collisions involving serious injury. Dr Hardiman agreed that her work involved attending collision scenes, taking measurements and making calculations based on measurements that would enable the estimate of speeds, distances, braking times, direction of travel after before and after impact. She explained that the same principles for accident reconstruction are used for every crash. However, she said the information available to apply those principles varies from one crash to another.
31In relation to this collision Dr Hardiman gave evidence that she was able to use tyre and gouge marks and the impact ingression into the vehicles but that none of the information that is now able to be collected from newer cars and their air bags was available here. The only physical evidence available from this collision enabled her to determine what happen post impact and also where the impact occurred. Dr Hardiman was not able to determine what occurred pre impact as there was simply no physical evidence.
32In the absence of such physical evidence Dr Hardiman relied on the statements she had from the truck driver Mr Andrew, the driver of the Tarago Ms Donasco, and the occupant of the VicRoads truck Mr Slorach and used what they said to form her opinion.
33Dr Hardiman described that there are two primary classifications that can be made of a collision in the circumstances of this case one is a looming collision, this is when the driver of the rear vehicle comes upon a vehicle that is stopped or almost stopped ahead of them and they have had no prior information that the vehicle is going to be in that position. The second is a lead vehicle collision. This is where two vehicles are following each other at some distance and the front vehicle slows or comes to a stop and the rear vehicle has had the ability to watch the front car do that.
34In this case, Dr Hardiman explained because there was a curve leading up to the collision and the Tarago was slowing or stopped, the rear vehicle did not have the prior information available that the front car will be in that position. Therefore she opined this was a looming collision. If the truck had followed the Tarago around the bend the truck would have been able to observe the Tarago slowing or coming to a stop. The driver would have had more information available to him and that would have been a leading vehicle collision.
35Dr Hardiman concluded in this case with the information from the statements that she had that this was a looming collision. That is when the truck came around the corner the Tarago was already stopped or near stopped. It was her view that based on the speeds given, that is the truck driver was going 95 down to 60 – the average driver would not have recognised that the Tarago was stopped until they were within five seconds of the impact. As a result the average driver would have crashed into the rear of the Tarago. The driver of the truck, Mr Andrew avoided the first collision and in doing so in her view he had actually acted better than the average driver. Dr Hardiman said that was because this collision occurred as a result of an emergency response to an emergency.
36The information that was given in evidence varied from the information Dr Hardiman was initially given. In these circumstances the same program she used to reach her previous conclusion was not available to be used. This was because the new information was too grey, in that it was too variable. It did not allow Dr Hardiman to conduct the same analysis.
37Dr Hardiman gave evidence that she was no longer able to determine whether the crash was or wasn’t a looming crash or a leading vehicle crash. She was also unable to determine whether the first impact was inevitable or not or whether the driver reacted better than average. Dr Hardiman said she could not exclude it and she could not confirm it either because the new information is too varied and the type of calculation used is very sensitive to the information that goes in with any small change making a big change to the outcome.
38Dr Hardiman was able to be certain about where the collision occurred and the post impact speeds of the vehicles, but she was unable to determine preimpact how long the driver of the truck was able to see the Tarago, whether it followed the Tarago around the bend and whether the Tarago was visible for some time as the truck came around the bed or whether the first opportunity the driver had to see the Tarago was when it was already stopped or nearly stopped next to the grader. As a result of these deficiencies in the evidence Dr Hardiman was unable to determine what type of crash occurred.
39Under cross examination Dr Hardiman agreed that her first analysis showed that Mr Andrew did the right thing and that he reacted better than most and that most people in the same situation would not have avoided the Tarago. Further she agreed that as a result of changes in the evidence she was now not sure if this was the case but it was not a possibility she could exclude. Dr Hardiman agreed the reality may well be that Mr Andrew reacted better than most drivers.
40Given the lack of physical evidence Dr Hardiman relied on what she had been told. Ms Donasco for example couldn’t be sure of the speed of the truck and thought it was travelling at 85km per hour when it was behind her. However, physical investigation did confirm that the truck was going 60 to 70km per hour at the point of impact and this was more consistent with the estimate of speed given by Mr Andrew, that he was travelling at around 60km per hour at the point of impact.
41Dr Hardiman gave evidence that she inspected all vehicles except for the Tarago. In those circumstances she was not able to say if the Tarago brake lights were working.
42In relation to Mr Andrew’s version of what occurred, that he came around the corner and observed the Tarago stopped in the middle of the road and he either had the option of going left into the grader, straight through or to swerve his truck, which was travelling at about 60km per hour, to the right - Dr Hardiman agreed that his account was supported by her analysis. Further, Dr Hardiman agreed that if this was what occurred, Mr Andrew would not have been driving dangerously but actually trying to do the right thing.
43DLSC Leigh Nicholds gave evidence that he was the informant in this matter and so he was responsible for the investigation and collation of the witness statements and other evidence. As part of his investigation he gathered photographs that had been taken and he conducted a video walk through of the scene. The admissible part of the video walk through was played to the jury and tendered in evidence.
44During cross examination DLSC Nicholds told the jury that Mr Andrew was fully licenced to drive including a heavy licence, he had no criminal prior history, his driving record was clear and he had not accrued any demerit points. Further, Det Nicholds confirmed that all the vehicles involved in the incident had been inspected by the police, except for the Tarago. In those circumstances he was not able to say whether the brake lights of the Tarago were operational.
45Mr Andrew’s version of events at the scene were as follows;
(a) I don’t know what to think I’ve just come around the corner because this lady in the p plate here stopped in the middle of the road and I’ve come around the corner and tried to bloody
(b) I started to slow down coming around the bend
(c) So I come around the corner here where this gentleman was in the grader
(d) I slowed down to about 85 90 cause I do that when I come around a bend this car stopped in the middle of the road
(e) There was enough room for her to get around
(f) I’ve come around the corner tried to get off the road and then bloody I’ve gone around and there was a car where that yellow sign was and I’ve just cleared off the road and then they’ve had the same idea and bang
(g) Cause the car had stopped and I went to go I was nearly right to go around em and then this person was coming toward me and then moved off and she’s done the same thing
(h) She actually said to me that she stopped
46Mr Andrew’s version of events at the hospital were as follows;
(a) Like I said I come around that bend the grader that car was stopped in the middle of the road
(b) What else was I supposed to do
(c) I just tried to avoid an accident and sadly I think I’ve wiped off two others
(d) Driving with Symes for three weeks but I’ve been driving for nearly five years
(e) I’ve never had a speeding fine
(f) Never done anything wrong. The only fine I had is just a parking ticket but that was me own stupid fault
(g) Never drink drive
(h) Like I said I couldn’t do anything
(i) I was just backed off coming around the corner – car’s stopped – I’ve jumped on the anchors tried to pull it up
(j) The truck is over 20 years old
(k) Got me stuffed why would you stop in the middle of the road
(l) I am not going to lie I come around that bend and they had stopped
(m) Just stopped to have a look at the grader
(n) I tried to skip across the other end of the road and tried to ditch it cause I looked to see where there was trees and I was gonna try to ditch it
(o) And the oncoming car had to go the same way I did
(p) I was trying to put it though the fence at least if I ran the truck off the road
Submissions of the defence
47Mr Habib outlined the three elements that must be proven beyond reasonable doubt to make out the charges: one, that the accused was driving a motor vehicle; two, that the accused was driving in a manner that was dangerous to the public in all of the circumstances; and three, that the accused’s dangerous driving cause the relevant death. Elements two and three were identified by Mr Habib as being in issue.
48The defence position as contended by Mr Habib was that there is no evidence upon which a jury could lawfully conclude beyond reasonable doubt that the accused drove dangerously and that his dangerous driving caused the deaths of Mr and Mrs Kerr. The prosecution case, he said was opened to the jury that the circumstances of dangerousness was that the accused failed to pay proper attention to the slow Tarago in front of his vehicle, having had greater than five seconds to observe the Tarago prior to swerving and impacting the Alfa Romeo, and around 10 seconds to observe the VicRoads truck and grader. Further, that the accused failed to maintain a safe distance between his vehicle and the Tarago, such that would enable him to safely respond to the movement of the Tarago, including unanticipated slowing and that the accused entered the eastbound lane to overtake the Tarago when it was not safe to do so. Mr Habib submitted that the on the evidence before the jury the particulars of the dangerous driving are not made out in this case.
49Mr Habib submitted that the case against the accused is a circumstantial one and in those circumstances the test for a no case submission was set out in the case of the DPP v Iliopoulos as whether the jury could rationally conclude that any inference or hypothesis consistent with innocence is not reasonably open on the evidence.[13] Mr Habib also relied upon the case of the R v Lam (No 21),[14] where Justice Redlich referred to the test as set out in Case Stated by Director of Public Prosecutions (No. 2 of 1993). King CJ said:[15]
"It follows from the principles as formulated in Bilick in connection with circumstantial cases that it is not the function of the judge in considering a submission of no case to choose between the inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence. He is concerned only with whether a reasonable mind could reach a conclusion of guilt beyond reasonable doubt and therefore exclude any competing hypotheses as not reasonably open on the evidence.” (citations omitted)
[13] DPP v Iliopoulos & Ors (Ruling No 3) [2016] VSC 132.
[14] R v Lam (No 21) [2005] VSC 295.
[15] Case Stated by Director of Public Prosecutions (No. 2 of 1993) (1993) 70 A Crim R 323, [326].
50Mr Habib then referred to the relevant passages of Georgiou v The Queen that isolates and states what the prosecution must prove for a charge of dangerous driving causing death.[16]
[16] Georgiou v The Queen [2022] VSCA 172.
51Mr Habib then referred to the evidence. Based on his summation of the evidence Mr Habib submitted there was no evidence as to what happened prior to Mr Andrew passing the roadworks truck and simply put there was no evidence for a jury to find that Mr Andrew failed to keep a proper lookout, or that he failed to maintain a safe distance. For the jury to find that Mr Andrew failed to pay proper attention to the slowing Tarago would require the jury to speculate as there is no evidence that he observed the Tarago slowing and there is no evidence unless the jury is to speculate or guess that would allow the jury to find that the accused failed to maintain a safe distance between his vehicle and the Tarago.
52The evidence of Dr Hardiman, submitted Mr Habib, provided a hypothesis consistent with innocence rather than a hypothesis consistent with guilt. On one set of circumstances Mr Andrew would have had no opportunity to do anything other than what he did and most other drivers would have collided with the Tarago and Mr Andrew’s reaction was better that average. Despite the changes in evidence Dr Hardiman was not able to exclude this as a hypothesis. Further, he submitted that no evidence had been led as what hypothesis is consistent with dangerous driving in circumstances where Dr Hardiman could not exclude that Mr Andrew did not depart from the normal operation of the vehicle to a significant degree and maintained driving as safely as he could in the environment as he perceived it. There was no evidence as to when Mr Andrew would have seen Ms Donasco and how much time he had to react when he first observed her.
53In relation to the third element Mr Habib submitted that the defence position is that the driver was not dangerous and Dr Hardiman’s evidence leaves open that it was not the dangerousness of Mr Andrew’s driving that caused the death but rather his attempt to avoid a collision with the Tarago in a situation of emergency with which he was confronted. Finally, Mr Habib submitted that there has been positive evidence of a pathway consistent with Mr Andrew not driving dangerously and there has been no evidence led of a pathway that leads to his guilt. No jury he submitted could lawfully exclude that Mr Andrew did everything he could and did the right thing and better than an average driver. There is no evidence that allows a jury to exclude that, that doesn’t involve some form of speculation or guesswork.
Prosecution submissions
54The prosecutor Mr O’Doherty did not take issue with the legal principles stated by defence counsel Mr Habib both with respect to the test for a no case application and dangerous driving.
55In response to defence arguments, Mr O’Doherty submitted that Dr Hardiman had based her opinion on statements made by the witnesses in circumstances where she was not the trier of fact and the facts are a matter for the jury to determine.
56Mr O’Doherty submitted that Dr Hardiman’s first conclusion that this was a looming collision and that Mr Andrew has done everything he could reasonably do and in fact has done better than the average motorist to avoid the collision with the Tarago is based on the initial statements that she was provided with. Her review of the evidence given in the trial is such that she doesn’t come to another conclusion. What she says is if you accept the evidence as being correct, and the evidence is conflicting then you get a possibility of another conclusion about the causation of this accident. Therefore, Mr O’Doherty submitted the evidence of Dr Hardiman is that she can’t exclude the first proposition namely that it is a looming collision because she doesn’t make a decision about the evidence. In those circumstances Mr O’Doherty submitted that Dr Hardiman’s evidence does not help the defence and her evidence does not help the prosecution case either.
57Mr O’Doherty submitted that the determination of the facts in this case rest with the jury. He submitted that the jury have other evidence necessary to find that the driving was dangerous in all the circumstances; they have looked at the scene, they have walked through the site, they have evidence of the lead-up and taking the physical evidence they have available to them, such as, what he would submit was an uninterrupted view of what was happening at the grader from about 300 metres away, with the Tarago either at the grader or very close to it. Mr O’Doherty contended that the jury are able to make a determination of whether Mr Andrew’s driving was dangerous in the circumstances of this case.
58The reality of the case, according to Mr O’Doherty, is that the jury are not left to speculate, they just have to make a finding of fact to determine whether the standard of dangerousness which the prosecution have to prove has been met. He also submitted this is not a matter for the determination of the court. It might be that, the court considers the prosecution case to be weak, that is not the point, the point is what the jury make of the evidence. Mr O’Doherty submitted there were a number of hypotheses open on the evidence and it is a matter for the jury to determine what the correct state of the evidence is. They stood at the bend and looked down towards the scene of the collision. The prosecution case is that the jury should come to the conclusion that when the accused first saw the Tarago he had a clear and uninterrupted view of it then he had sufficient time to take whatever emergency steps were required to avoid the incident and the fact that he hasn’t is evidence that he has not been keeping a proper lookout. That is, he hasn’t taken the correct evasive steps, because what has happened is that he has come up behind the Tarago and the only course of action that he says is available to avoid running over the top of the Tarago when doing 60km per hour is to swerve to the right and have this collision. Mr O’Doherty submitted that if the jury accepts that then they are in a position to conclude that the whole scenario is dangerous.
Further Defence submissions
59In response to the way the prosecutor articulated the prosecution case Mr Habib submitted that Dr Hardiman’s account based on the evidence of the truck driver directly contradicts the way the Crown now put their case. Dr Hardiman’s evidence, if accepted, is that Mr Andrew’s reaction is better than the average driver and not a serious departure sufficient to find dangerous driving. Mr Habib submitted that the prosecution case was now a case of reverse-engineering that is the collision occurred therefore Mr Andrew’s driving was dangerous. Given the uncertainty of the evidence as to where the grader was positioned, where the work truck was positioned, what speeds the various vehicles were travelling, the jury by standing on the road have only a little bit of information which is not enough to conclude that the accused was driving dangerously and would be inviting the jury to speculate because of the quality of the evidence that has been led.
Consideration
60In the case of DPP v Perry, which was a no case application on a charge of dangerous driving, Dixon J stated:[17]
[17] DPP v Perry [2023] VSC 270, [62].
“the following propositions are applicable to the jury’s assessment of whether the accused was driving in a manner that was dangerous to the public, having regard to all the circumstances of the case, pursuant to s 319 (1) and s 319(1A):
(a) Dangerous driving is driving that is dangerous to the public; that is, the driving must have involved a serious breach of the proper management or control of a vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured.
(b) The driving must have involved such a serious breach of the proper management or control of the vehicle as to be, in reality and not speculatively, potentially dangerous to others. This test will only be satisfied if the speed or manner of driving posed a real, and not just speculative, danger to other members of the public who may have been in the vicinity.
(c) In determining whether this was the case, the finders of fact are required to bear in mind that people do not always drive as they should. Even the best drivers occasionally lose attention for a moment, or make minor mistakes.
(d) For dangerous driving to be established, the accused must have driven in a manner that significantly increased the risk of death or serious injury to others, over and above the ordinary risks of the road. This could be because the accused’s driving increased the likelihood of a collision, or because it made it more likely that any injuries suffered in a collision would be serious.
(e) In assessing risk, the finders of fact must consider the likelihood of a collision, and the seriousness of any likely injuries if a collision does occur.
(f) The accused’s manner of driving includes all matters concerned with the management and control of the vehicle. As part of this, the finders of fact should consider matters such as the accused’s technical driving skill, and the condition of his vehicle.
(g) In determining whether the accused’s driving was dangerous, it is necessary to consider all of the circumstances in which the accused was driving (e.g. weather, road conditions and traffic).
(h) It is not necessary to prove that the accused intended to drive dangerously, or was aware that his conduct was dangerous. Driving may be dangerous even if the accused was driving as his ‘(incompetent) best’. The accused’s state of mind is only relevant in considering the circumstances of the offence.
(i) This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality.
(j) The finders of fact must not assume that simply because there was a collision the accused’s driving must have been dangerous; sometimes accidents happen for which no one will be criminally responsible. The law does not require drivers to act with perfect hindsight, or assume that for every accident there must be a remedy.
(k) It is not enough that the vehicle as driven has caused death or serious injury and that the accused was negligent, even in some glaring respect. For the driving to be dangerous, the accused ‘must have done something more than fail to exercise due care’.” (footnotes omitted)
61Bearing these factors in mind, I now turn to the question of whether the evidence before the jury is capable of establishing a verdict of guilty in respect of the charges on the indictment. In determining whether there is a case to answer the starting point is the prosecution case as articulated in the prosecution opening, as follows:
(a) The accused failed to pay proper attention to the slowing Tarago in front of his vehicle, having had greater than 5 seconds to observe the Tarago prior to swerving and impacting the Alfa Romeo, and around 10 seconds to observe the VicRoads truck and grader;
(b) The accused failed to maintain a safe distance between his vehicle and the Tarago, such that would enable him to safely respond to the movement of the Tarago, including unanticipated slowing;
(c) The accused entered the east-bound lane to overtake the Tarago when it was not safe to do so.
62The prosecution case has been formulated in reliance on both reports from Dr Hardiman. That is the measurements of distance and time to travel that were articulated in her first report, together with her conclusion that this is essentially a leading vehicle collision case (although this has not be precisely articulated in the opening). That is the accused was dangerous as he had more than 5 seconds to take evasive action.
63The evidence relied upon by Dr Hardiman in her second report was not was not the evidence given by the witnesses at trial. The evidence led at trial was uncertain in many respects, such as the positions of the vehicles and the speeds of the vehicles. There was no evidence led that would assist the jury with regard to measurements or of time to travel distance, that was contained in Dr Hardiman’s first report. Dr Hardiman was clear that on the state of the evidence at trial, she could no longer conclude that this was a leading vehicle collision and she could not exclude that it was a looming vehicle collision.
64With this in mind it is useful to consider other cases. The recent decision of Paulson from the Court of Appeal involved a trial from Horsham last year where a semi-trailer hit a cyclist.[18] A no case submission was rejected by the trial judge and the Court of Appeal endorsed this decision.[19] In that case evidence was led from a number of experts and significantly included that the accident occurred on a 650 metre straight stretch of road and the driver of the truck had in the order of 30 seconds, given the speed at which she travelled, to be able to see the cyclist. This evidence was considered sufficient to leave the decision as to dangerousness to the jury given the inferences that were open as to driver inattention and therefore dangerousness.
[18] DPP v Paulson [2023] VCC 703.
[19] Paulson v R [2024] VSCA 188.
65In the case of Georgiou,[20] that has previously been referred to, the driver was found to have not kept a proper lookout in circumstances where the prosecution case was based on evidence that the driver had 13 seconds of unimpeded view and there was no evidence as to why she did not see the pedestrian, the trial judge (in a judge alone trial) finding beyond reasonable doubt that the only explanation that the collision occurred was as a result of the driver’s prolonged inattention and therefore dangerousness.
[20] Georgiou v The Queen [2022] VSCA 172.
66Again by reference to the case of Paulson,[21] the Court of Appeal discussed circumstantial evidence. In that case the defence had posited a theory that the cyclist had swerved into the path of the truck.
[21] Paulson v R [2024] VSCA 188.
67The case of the prosecution was circumstantial and depended on inferences to be drawn from the proved facts having regard to the criminal standard of proof. In Baden-Clay, under the heading ‘Hypothesis consistent with innocence’, the High Court said:[22]
The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said:
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’
For an inference to be reasonable, it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’ (emphasis added). Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’ (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal. (footnotes and citations omitted)
[22] The Queen v Baden-Clay [2016] HCA 35, [46]-[47].
68As that decision makes plain, a hypothesis must be one founded on the evidence. It is not enough that a theoretical hypothesis can be imagined but there are ‘no positive proved facts from which the inference’ can be drawn.[23]
[23] Ibid [55].
69In the current case there is no evidence before the jury that the accused man had greater than 5 seconds to observe the Tarago prior to swerving and impacting with the Alfa Romeo. Additionally, there is no evidence which would allow the jury to draw a reasonable inference in this regard given the absence of evidence of any measurements and any time taken to travel. Further there is no evidence before the jury that the accused had around 10 seconds to observe the VicRoads truck and the grader. Additionally, there is no evidence which would allow the jury to draw a reasonable inference in this regard given the absence of evidence of any measurements and any time take to travel.
70There is no evidence that the accused failed to maintain a safe distance between his vehicle and the Tarago such that would enable him to safely respond to the movement of the Tarago including unanticipated slowing. Additionally, there is no factual basis upon which the jury could draw a reasonable inference in this regard. The only evidence on this point being from the accused himself that he came around the bend and saw the Tarago stopped in front of him and the evidence of Mr Slorach that by the time the truck went passed him the Tarago was either ahead of or half way level with the grader.
71As to the final basis of the crown case, the evidence of Mr Andrew that he reacted to an emergency that confronted him by swerving to the right to ditch the truck, cannot be excluded by the crown.
72Although the jury are left with some evidence, having walked the scene, it is my view that they have not been provided with critical evidence that would allow them to draw the necessary and reasonable inferences they must draw to find the accused man guilty of dangerous driving, particularly in view of the way the prosecution have put their case. The evidence before the jury does not provide a sufficient evidentiary foundation and would require the jury to act upon speculation and conjecture, therefore any inferences would not be reasonable. It is my view in these circumstances the jury could not lawfully convict the accused of the offences of dangerous driving causing death which are the subject of the charges.
73I would therefore uphold the no case submission and will instruct the jury to enter verdicts of acquittal at 12pm.
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