Director of Public Prosecutions v Georgiou
[2021] VCC 2165
•6 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01069
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EFFIE CATHERINE MARIE GEORGIOU |
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JUDGE: | HIS HONOUR JUDGE LYON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 6 May 2021 |
CASE MAY BE CITED AS: | DPP v Georgiou |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2165 |
REASONS FOR JUDGMENT
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Legislation Cited:
Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Gibson QC | Office of Public Prosecutions |
For the Accused | Mr D. Gurvich QC with | Lamplugh McIntosh Lawyers |
Introduction
The accused Effie Catherine Marie Georgiou was charged on 24 August 2019 with dangerous driving causing death pursuant to s. 319 Crimes Act.
The accused has pleaded not guilty.
Trial by Judge Alone
This case is being tried by me as judge-alone. The accused’s application to be tried by judge-alone was granted on 17 February 2021, pursuant to s.420D Criminal Procedure Act 2009 (CPA).
In hearing this matter I may make any decision that could have been made by a jury. My decision will have for all purposes the same effect as a verdict of a jury.
Section 4A Jury Directions Act 2015 (JDA) applies in this case.[1]
[1] Pursuant to s.420ZF CPA introduced by the enactment of the COVID-19 (Emergency Measures) Act 2020.
Section 4A provides that the Court's reasoning with respect to any matter in which Parts 4 and 7 apply must be consistent with how a jury would be directed in accordance with the Jury Directions Act. Further, I must not accept, rely on or adopt a statement or suggestion that the JDA prohibits a trial judge from making, or a direction that the JDA prohibits a trial judge from giving.
I must apply all directions of law to myself that would have been given to a jury in this case.
In returning a verdict, I am obliged to give reasons sufficient to identify the principles of law applied by me and the main factual findings on which I have relied.
The Issues at Trial
The Prosecution Opening
The charge results from a collision between a car driven by Ms Georgiou and a pedestrian, Mr Michael Varvodic, on Hawthorn Road Caulfield South on 24 August 2019.
Mr Gibson QC, on behalf of the Crown, submitted that this was a case of ‘driving blind’ and involved more than momentary inattention – rather, he submitted that the case involved driving during a prolonged period of inattention, and a failure to keep a safe and proper lookout over a period of approximately 13 seconds.
Mr Gibson submitted that Ms Georgiou did not see Mr Varvodic, in circumstances where, on the evidence, he should have been clearly visible to her. Mr Gibson posed the question for me in this trial as: ‘Does the degree of inattentiveness establish dangerous driving?’
It follows therefore that her inattention, he submitted, fell below the standard required of drivers and that the driving should be characterised by a serious departure from the level of care and attention required in the circumstances.
The Defence Reply
Mr Gurvich QC with Ms McGarvie principally disputed that Mr Varvodic was in Ms Georgiou’s line of vision for 13 seconds. Rather, the Defence submitted that:
·First: The CCTV footage does not exclude the reasonable possibility that other vehicles or pedestrians crossed in front of the accused’s car in that time;
·Second: Exhibit F – the Thirsty Camel CCTV footage must be given greater prominence;
·Third: The prosecution case is unrealistic in its analysis of time, distance and visibility; and
·Fourth: The submission that Ms Georgiou did not pay attention for 9 to 13 seconds is not correct and is based upon the erroneous assumption that the view to Mr Varvodic was clear and unobstructed, and that there were no moving cars or pedestrians to distract Ms Georgiou. Specifically, a driver’s view of the roadway is not the fixed and continuous view as depicted in camera three (Exhibit C2).
Mr Gurvich submitted that the Crown case is circumstantial: it is based upon CCTV footage from which I am asked to infer dangerousness, as opposed to carelessness or negligence. The law views proof of dangerous driving to be in sharp contrast to negligence.
The Defence submitted that even if I found the driving to be careless or negligent, I would still be required to acquit the accused of the charge of dangerous driving on the indictment.
General Directions of Law
I now refer to the general directions given in a criminal trial which I must apply.
Presumption of Innocence
In all criminal trials an accused person is presumed innocent of the charge unless and until they are proved to be guilty.
Burden and Standard of Proof
The prosecution bears the burden of proving the case against the accused. No accused person must prove their innocence. The prosecution always bears the burden of proving the accused’s guilt.
The accused may be found guilty of a charge only if the prosecution has proved its case beyond reasonable doubt; the highest standard known to our law. Proof to any lesser extent must result in a verdict of not guilty.
Decide Solely on the Evidence
I must decide the case only on the evidence led in this trial. I must not have regard to any media reporting or social media, or conduct any research about the parties or witnesses. The transcript of the record of interview and transcript of the evidence in this trial are to be used as aids and not as a substitute for the evidence adduced at trial. The addresses of counsel are not evidence.
The evidence adduced in this trial is the evidence of each of the witnesses, the Exhibits and the Admissions of Fact.
The witnesses called were:
·Leading Senior Constable John Ellison;
·Detective Senior Constable Melanie MacFarlane;
·Leading Senior Constable Sandro Lombardi; and
·(for the Defence) Dr George Rechnitzer.
Exhibits received were:
| A | Extract of Melways Map, pages 67 and 68 |
| B | Aerial Map produced by Leading Senior Constable Pascoe |
| C1 | CCTV analysis attached to the Camden Hotel camera |
| C2 | Camden Hotel camera 3 footage |
| D | 10 still photographs from the CCTV footage of the Camden Hotel, camera 3 |
| E1 | CCTV analysis of the Camden Hotel, camera 10 |
| E2 | CCTV footage of the Camden Hotel, camera 10 |
| F | Thirsty Camel CCTV footage |
| G | GoPro footage of the route taken by the accused, filmed by Sandro Lombardi |
| H | Sleeve of 26 photographs of various views of Hawthorn Road and site of the collision |
| J | 12 photographs referred to by Poppeliers and Ellison |
| K | Body camera footage of Constable D’Cruze |
| L | Plan of measurements recorded by Leading Senior Constable Ellison on 24 August 2019 |
| M | Record of Interview conducted on 24 August 2019 with Effie Georgiou |
| N | CCTV footage from 401 Hawthorn Rd on 24 August 2019 |
| O | Admission of Fact dated 20 April 2021 and signed by Effie Georgiou |
| P1 and P2 | 2 screenshot photographs from police GoPro 26 September 2019 |
| Q | 2 pages of screenshots from compilation video which forms part of Exhibit 6 depicting times 12:56:03 and 12:56:06 |
| 1 | Chronology prepared by the Defence |
| 2 | CCTV compilation at 12:56:03 |
| 3 | CCTV compilation at 12:56:05 |
| 4 | Bundle of 4 screenshots from the GoPro footage taken along Hawthorn Road |
| 5 | Overall Plan of Hawthorn Road from Glen Huntly Road to Sycamore Street |
| 6 | Rechnitzer Report dated 14 April 2021 and composite video |
It was agreed that the timestamp on the CCTV footage, and real-time, varied by approximately one hour – that is, the collision occurred just after midday on 24 August 2019, whereas the timestamp shows a time of 12:56:09. As much of the evidence and submissions related to an analysis of the CCTV footage, the parties continued to use the timestamp as a reference point in examination, cross-examination and addresses.
Inferences
As the Judge of the facts and the law, I must find the facts and draw inferences from the evidence, as well as apply the law to the facts as I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately, and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
I may only return a verdict of guilty on a charge if I am satisfied that guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect. If there is another reasonable view of the facts which is consistent with the accused’s innocence, then the prosecution will not have proved Ms Georgiou’s guilt beyond reasonable doubt, and I must acquit her.
For an inference to be reasonable, it must rely upon something more than mere conjecture. ‘… A competing hypothesis must be open on and consistent with the evidence in the case. Such a competing hypothesis must be reasonably open, and not fanciful.’[2]
[2] Davies v R [2019] VSCA 66, [488].
I may only consider alternative hypotheses which are consistent with the facts I find to have been established. I cannot have regard to any hypothesis or explanation which is inconsistent with the established facts.
I must assess and determine the credibility and reliability of each witness called and I may accept all, some, or none of a witness' evidence. I must base my verdict only on evidence I find to be credible and reliable.
Expert Opinion
I heard expert evidence from prosecution witness Detective Senior Constable MacFarlane, a collision reconstruction and mechanical investigation investigator with the Victoria Police; and from Dr Rechnitzer, a forensic and safety engineer, who gave evidence on behalf of the accused.
Detective MacFarlane gave evidence of her opinion as to the speed at which the accused’s car was travelling at the point of impact; and, under cross-examination, about the concept of driver perception reaction times (PRT), based upon her research, studies and experience within her field of expertise.
Dr Rechnitzer also gave evidence as to his opinion as to the speed at which the accused’s car was travelling at the point of impact, and the concept of PRT. Dr Rechnitzer further provided a reconstruction of the circumstances surrounding and leading up to the point of impact. Based upon that reconstruction, he expressed his opinion that Ms Georgiou’s attention may have been diverted at a critical time before the impact, to assess the potential risk of another pedestrian (referred to as the BMW pedestrian); the effect that this physical phenomenon had on the accused’s PRT, and upon her driving generally up to the point of the collision.
Each of these witnesses established (and without objection from the opposing party) that they had specialised knowledge and training which allowed them to give their opinions about matters within their field of expertise in an effort to assist me in my decision-making.
I recognise that I am not required to accept the opinion of either Detective MacFarlane or Dr Rechnitzer. Even as experts in their fields, their opinions were merely pieces of evidence like others which I may accept or reject.
The Defence generally accepted Detective MacFarlane’s evidence. Dr Rechnitzer considered that the impact point at which the accused’s car collided with the pedestrian was likely 2.5 metres further north (that is closer to Glen Huntly Road) than the police estimate. Moreover, in his reconstruction of the events leading to the collision, Dr Rechnitzer provided evidence of the BMW pedestrian’s movements at a point between 38 to 50 metres north and about 3.8 seconds before the accused’s collision with Mr Varvodic. Dr Rechnitzer considered that the pedestrian’s movements were likely to have distracted the accused, and adversely (and reasonably) impacted upon her perception of the presence of Mr Varvodic in the centre laneway of the southbound carriageway.
The Crown accepted the existence of the phenomenon of the BMW pedestrian described in Dr Rechnitzer’s evidence, but challenged his reasoning as to the conclusions that I should draw from that phenomenon.
When I come to consider the evidence of Detective Senior Constable McFarlane and Dr Rechnitzer I will have regard to:
·The expertise of the witness;
·The way they set out their opinions;
·The quality of the reasons for the opinions and the facts offered by them in support of their conclusions;
·The whole of the cross examination; and
·Whether I consider they appeared to be impartial.
While the Defence chose to call expert evidence from Dr Rechnitzer, the burden of proving that the accused is guilty always remains with the Crown. Even for calling evidence, the accused does not have to prove her innocence.
I shall of course return to a more detailed examination of this issue in my summary of the evidence and my analysis of the issues for determination.
The Crown failure to call the witness or question a particular witness
The Defence sought a direction under section 43 Jury Directions Act.
It was submitted on behalf of Ms Georgiou that I may have expected the prosecution expert evidence to provide a reconstruction diagram or evidence, and to take account of, and provide its opinion on, the potential for the intervening physical phenomenon of the BMW pedestrian distracting Ms Georgiou in the few seconds prior to the collision.
I must determine whether the prosecution has provided a satisfactory reason for not providing reconstruction evidence, or providing an account of, and an opinion, in relation to the BMW pedestrian. If I conclude that the prosecution did not have a satisfactory reason for failing to adduce this evidence, I may conclude that this evidence would not have helped the prosecution.
Good Character
In this case, I have heard evidence that Ms Georgiou is a person of good character. Ms Georgiou has no prior criminal history and specifically, has no road traffic history, serves as a Captain in the Australian Army, and works as a dentist.
If I accept that Ms Georgiou is a person of good character, there are two ways in which I can use this fact.
·First, I can use it when assessing the credibility of Ms Georgiou’s answers in her record of interview when she stated she was paying attention and she believed she was driving safely, and in her denials of prolonged inattention.
·Second, I can use it when determining the likelihood that Ms Georgiou committed the offence charged.
Of course, this does not mean that I must find Ms Georgiou not guilty if I accept that she is a person of good character. The fact of good character cannot alter proven facts – it can only assist me in determining whether those facts have been proven.
Answers given by the Accused in the Record of Interview / Liberato Direction
The accused answered questions in a record of interview with police on 24 August 2019; within a few hours of the collision. She was not obliged to answer questions but chose to do so. The accused’s answers must be considered along with the other evidence in the case.
The Defence also called expert evidence from forensic and safety engineer, Dr Rechnitzer.
The accused has not assumed any burden of proof by providing answers and calling evidence; that burden always remains with the prosecution.
The law provides that there are four broad conclusions I may reach about Ms Georgiou’s answers provided in the record of interview.
·First, if I think her answers in the record of interview are true; that is, she was paying attention and driving safely, then I will find her not guilty;
·Second, if I am not sure whether Ms Georgiou’s answers are true, but think that they might be, then I will have a reasonable doubt about the prosecution’s case, and again, I will find the accused not guilty;
·Third, and similarly, it is not sufficient to merely find the prosecution case to be preferable to the Defence case. In other words, it is not simply a question of balancing one case against the other. The prosecution must establish Ms Georgiou’s guilt beyond reasonable doubt; and
·Finally, if I reject Ms Georgiou’s answers in the record of interview, it does not mean I must find her guilty. Instead, if I reject those answers, I must put them aside and ask whether the prosecution has proved Ms Georgiou’s guilt beyond reasonable doubt on the basis of the evidence I do accept.
I accept these four broad conclusions, but as will be seen from the statement of the elements of the offence of dangerous driving, the assessment of dangerousness is made in all of the circumstances of the driving. It does not depend on an accused’s state of mind. In this way, an accused may give truthful answers about a matter, but the objective assessment of the matters to which the answers relate may differ.
Elements of the Charge
The elements of dangerous driving causing death which the prosecution must prove beyond reasonable doubt are as follows:
·First: The accused was driving a motor vehicle; and
·Second: The accused was driving dangerously; and
·Third: The accused’s dangerous driving caused the victim’s death.
It is admitted that the accused was driving her car on 24 August 2019. It is also admitted that her driving caused the victim’s death. What is in dispute in this trial is the second element – that the accused was driving dangerously – and then, in the third element, that it was her dangerous driving that caused the victim’s death.
The second element will be proved if I am satisfied beyond reasonable doubt that Ms Georgiou’s driving involved a serious breach of the proper management or control of her vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured.[3] The accused must have driven in a manner that significantly increased the risk of serious injury or death, over and above the ordinary risks of the road.
[3] McBride v R (1966) 115 CLR 44 [49] (McBride).
I am mindful that in determining whether this is the case, people do not always drive as they should. Even the best drivers occasionally lose attention for a moment or make minor mistakes. For this element to be satisfied, I repeat, the accused must have driven in a manner that significantly increased the risk of serious injury or death, over and above the ordinary risks of the road. In this case, the Crown alleges that Ms Georgiou’s prolonged inattention to the roadway ahead increased the likelihood of a collision.
The test for dangerous driving is an objective test. In other words, it is beside the point that the accused may not have intended to drive dangerously, or believed they were driving safely when the objective facts prove otherwise.
The concept of dangerous driving stands in sharp contrast to the concept of driving negligently, even where that negligence was glaring.[4] The manner of driving must have, as I have already observed, created a real risk, and not just a speculative risk of danger of death or serious injury to members of the public in the vicinity.
[4] McBride [51]
In determining whether Ms Georgiou’s driving was dangerous, I must consider all of the circumstances in which she was driving. In this case, that includes the time-of-day, weather, lighting, condition of the driver, road conditions, traffic conditions and condition of the vehicle Ms Georgiou was driving.
I must not simply assume that because there was a collision which resulted in the death of Mr Varvodic, that Ms Georgiou’s driving was dangerous.[5]
[5] McBride [50]
A mere error of judgment or a failure to take evasive action will not constitute dangerous driving. In this case, the Crown does not put the case as a slip, or a moment’s inattention.[6] The dangerousness in this case has been articulated as prolonged inattention – a failure to see the pedestrian who was more or less stationary in the one lane for about 9 seconds before the collision; and driving her car at impact at 50 km/h (in a 60 km/h zone), which converts to a rate of velocity of about 13.8 m/s. It is known that Ms Georgiou’s car was about 47 metres from the impact zone 3.8 seconds before impact, so the Crown case infers that, at whatever speed the accused was travelling, she also had a considerable distance over which to see Mr Varvodic and take avoidant action.
[6] McBride [50], Geiles v Kelly [2015] WASC 133 [69] (Geiles).
The Crown case presumes that from the CCTV footage of the Camden Hotel camera 3 (Exhibit C2), the accused had a clear road ahead of her, unobstructed by cars moving immediately ahead of her and, after the so-called BMW pedestrian crossed from west to east in the vicinity of the Thirsty Camel CCTV camera, free of pedestrian traffic.
The Defence case is that I cannot be satisfied beyond reasonable doubt that Ms Georgiou drove dangerously. The Defence submitted that there is a complete absence of other factors (such as speed or other aspects of management of the car), internal distraction (such as using a phone, or music or the like), poor health or medical conditions. The Defence submitted that the Crown case for dangerousness is circumstantial, and that I cannot be satisfied beyond reasonable doubt that the only reasonable inference to be drawn in the circumstances is one of guilt.
The Evidence
The Crown Case
Leading Senior Constable Ellison
The original call to D24 was made on Saturday, 24 August 2019 at 12:04pm. Leading Senior Constable Ellison was on motorcycle patrol with his partner, Senior Constable Poppeliers, when they received a call at 12:25pm and arrived at the scene of the collision at 12:32pm.
Leading Senior Constable Ellison noted damage to the centre bonnet of the white Peugeot SUV; consistent with a low-speed pedestrian collision. Neither airbags had been deployed. Police estimated that the pedestrian had landed approximately 14 metres from the front of the Peugeot, based on the bloodstain on the road and the teeth found. The pedestrian (Mr Varvodic) had been transported to hospital by the time Leading Senior Constable Ellison arrived.
The driver of the white Peugeot was identified as Effie Georgiou. Ms Georgiou’s father was at the scene. Preliminary alcohol and drug tests were conducted with negative results.
Leading Senior Constable Ellison used his body camera to depict the geography of Hawthorn Road north of the collision scene; thereby showing the direction from which Ms Georgiou had travelled. He recorded and took notes of the statement Ms Georgiou made at the scene. I have reproduced this from the notes he read to Ms Georgiou at Question 383 of the Record of Interview conducted later that afternoon, when Ms Georgiou confirmed the accuracy of this statement and signed an acknowledgement:
So you put your name, address, your phone number, your licence number. And, just going over, you said - from Hawthorn Road, turned left into - sorry, from Glen Huntly Road, turned left into Hawthorn Road going to North Road. Travelling at the speed limit, 60 kilometres. Approaching Sycamore Street a man just appeared. "He walked straight out onto the road from my left. He was wearing a red jumper and black pants. I don't know how old he was. He looked elderly. And then I slammed on the brakes. His head went back and hit the windscreen and then he went forward. Was - that was a double hit. And then he went forward onto the road. I ran out of the car, ran to the person. There were others already coming out. We all went there. They asked me if I could call an ambulance. My phone was in my bag in the back seat. I finally found it, ran back with my phone to call an ambulance. I saw that there was a man already speaking with the ambulance, and then everyone started arriving. There were two people who were manoeuvring him into the recovery position. And then they told me to put my hazard lights on so I went, put my hazard lights on, then we went back there and waited for the police and the ambulance. The paramedic checked him and they said he was responsive”.
Leading Senior Constable Ellison collected CCTV footage from the Camden Hotel.
Leading Senior Constable Ellison observed Hawthorn Road to be a sealed bitumen road; with two lanes in each direction. The inner north and southbound lanes are inlaid with concrete to hold tram tracks. The left (that is the eastern) laneway of the southbound carriageway measured 3.46 metres, and the right (western) laneway of the southbound carriage way measured 3.4 metres. The weather on the day was clear; the road conditions were fine and dry; traffic was light.
Leading Senior Constable Ellison’s partner measured skid marks whilst LSC Ellison recorded details. They took 12 photographs.
The Record of Interview commenced at 2:01 PM on 24 August 2019. After an unsuccessful attempt to take blood from Ms Georgiou, the Record of Interview proper commenced at 3:34 PM. Ms Georgiou provided answers to 428 questions. A summary of those answers is as follows:
65 After getting her car washed, the accused was driving down Hawthorn Road. At the intersection with Sycamore, ‘this man just appeared in front of me. As soon as he appeared, I slammed the brakes as fast as I could but he hit the bonnet and came backwards and then the collision happened.’
66ff Ms Georgiou is familiar with Hawthorn Road. She was travelling on the speed limit. ‘There’s no people coming across the road because it’s no entry’ so she did not expect to have to slam the brakes so suddenly.’
80 Ms Georgiou considered she was ‘driving properly, paying attention.’
88ff Ms Georgiou agreed the sun was possibly coming from behind her.
Ms Georgiou keeps a ‘pretty good eye’ on her speed and does not go above the speed limit.
She was travelling in the left lane southbound but one lane is mostly taken by parked cars so she cannot really use it. She thinks there is a tram stop near the intersection of Sycamore. The car was travelling slightly to the left of the tramline.
109ff Ms Georgiou was travelling in the right lane because there are parked cars further up ‘so you can’t get into that left lane’.
116 Ms Georgiou does not recall seeing any parked cars within 50 metres of the intersection with Sycamore Street.
133ff When asked if there was anything else that could possibly obstruct her view of a pedestrian crossing the road, Ms Georgiou stated there was oncoming traffic in the opposite, northbound direction. Ms Georgiou thought the pedestrian was coming from the tram side, from her left travelling in a westerly direction.
147ff Ms Georgiou first saw the pedestrian when she was pretty close to him. She does not ‘know how much. A few metres.’ He was wearing a red zip jacket and black pants. She thought he was elderly. She saw him suddenly appear and didn’t see him walking. She did not see him step off the curb. She could not see him walking across the whole of the lane. She could see him taking steps but he was ‘obscured by the impact’. She first saw him a few metres before she collided with him. He was facing the pub.
163ff Hawthorn Road is a straight road. Ms Georgiou doesn’t think there are any vehicles directly in front of her. Ms Georgiou can’t consciously say she was ‘distracted’ by oncoming vehicles, but that there were oncoming vehicles. The oncoming vehicles did not draw her attention from her driving. There were two tram tracks and she was trying not to come into contact with them.
175ff Ms Georgiou was looking ahead and looking in her side mirrors. Her phone was in her bag on the back seat. She wasn’t ‘distracted or listening to music or anything’. She did not have to be anywhere at a particular time.
188ff Ms Georgiou would like to think she was driving in a safe manner. When she first noticed the pedestrian, Ms Georgiou slammed the brakes on. She heard a big screech and her brakes ‘like, buckled.’
199ff Ms Georgiou did not attempt to swerve. She thought if she slammed the brakes, she could stop in time. Ms Georgiou is not sure if swerving was a consideration with the tram tracks. She did not overtake any vehicles prior to the collision. She does not think she was following any cars. There were parked cars along Hawthorn Road, but she does not think there were any other vehicles driving in front of her; ‘not right in front’ of her.
212ff The pedestrian had not crossed Hawthorn Road but was in the process of doing so. Ms Georgiou estimates he was 1/3 of the way if you look at the whole width of Hawthorn Road.
217ff LSC Ellison advises CCTV footage showed the pedestrian crossed in a westerly direction and was stationary at the centre line waiting for the northbound traffic to clear. Ms Georgiou stated she ‘wouldn’t say he was at the centre line’. LSC Ellison then put that the pedestrian was standing there for approximately six seconds prior to the collision. Ms Georgiou replied that she did not see that. Ms Georgiou stated she didn’t see him coming from the curb. She can honestly say that she didn’t see any person there and she was not travelling in the centre of the road.
220ff Ms Georgiou was not tired, is in good health, did not fall asleep and was not distracted. It was a sunny day. There were tram tracks on the road, and she tries to avoid them. There were oncoming cars in the opposite direction.
274ff Ms Georgiou was thinking about the pedestrian crossing and was thinking about getting home. She would say she was probably concentrating on the way home.
284 Ms Georgiou’s eyes were checked for the Defence Force in 2014.
291ff It all happened so fast. Ms Georgiou would like to think her driving is safe. She wasn’t expecting a pedestrian to be on the road right at that point there. She is really conscious of speed.
301ff Ms Georgiou used the windscreen wipers to clear the windscreen after the carwash, as water was flicking onto the windscreen. That was going down Glen Huntly Road and as she turned onto Hawthorn Road.
349ff Ms Georgiou agrees she may have been looking at the oncoming cars to the right. She wishes she could tell the police. She took note of her surroundings but was not looking at any particular building. She cannot directly recall everything so there’s nothing she had noted in detail.
354 Ms Georgiou cannot recall any pedestrians on the side of the road, on the left on the footpath.
371ff Ms Georgiou knows that the road is blocked off at Sycamore Street. She does expect people to be coming out of there and turning onto Hawthorn Road.
383 Ms Georgiou acknowledged the points recorded by LSC Ellison when they spoke at the scene of the collision. Ms Georgiou signed the statement.
413 Ms Georgiou was not drinking water or a coffee or anything.
Cross-examination
Ms Georgiou’s father was at the collision scene when LSC Ellison arrived. Ms Georgiou told police ‘I’m okay. I’m just shaken up.’
CCTV Footage – Key Vehicle and Pedestrian Movements
I have synthesised the key movements recorded in Exhibits C1, E1 and Exhibit 1 from the CCTV footage into the following table:
| CCTV TIME | CCTV CAMDEN HOTEL CAMERA 3 | CCTV CAMDEN HOTEL CAMERA 10 | CCTV THIRSTY CAMEL |
| 12:55:26 | Tram travels past camera view travelling south on Hawthorn Road, Caulfield South. | ||
| 12:55:27 | Tram travels past camera view travelling south on Hawthorn Road, Caulfield South and Mr Varvodic is on east curb of Hawthorn Road next to tramstop. | ||
| 12:55:46 | Mr Varvodic steps onto Hawthorn Road heading in a westerly direction. | Black BMW parked opposite Thirsty Camel on southbound side of Hawthorn Road. Cars turning in and out of Almond Street. | |
| 12:55:55 | Mr Varvodic on Hawthorn Road beginning to walk in a westerly direction after last southbound vehicle passes him. | Black BMW parked opposite Thirsty Camel on southbound side of Hawthorn Road. BMW pedestrian crosses Hawthorn Road opposite Thirsty Camel. | |
| 12:55:56 | Mr Varvodic starts crossing Hawthorn Road (southbound side, east lane). | Black BMW parked opposite Thirsty Camel on southbound side of Hawthorn Road. BMW pedestrian crosses Hawthorn Road opposite Thirsty Camel. | |
| 12:55:59 | Mr Varvodic crosses the yellow line into southbound west lane. | Black BMW parked opposite Thirsty Camel on southbound side of Hawthorn Road. BMW pedestrian crosses Hawthorn Road opposite Thirsty Camel. | |
| 12:56:01 | Mr Varvodic reaches left tram track. | Black BMW parked opposite Thirsty Camel on southbound side of Hawthorn Road. BMW pedestrian crosses Hawthorn Road opposite Thirsty Camel. | |
| 12:56:01 | Mr Varvodic positioned within the tram tracks. | Black BMW parked opposite Thirsty Camel on southbound side of Hawthorn Road. Accused’s vehicle at Almond Street approaching the BMW pedestrian crossing Hawthorn Road | |
| 12:56:06 | Mr Varvodic positioned within the tram tracks. | Black BMW parked opposite Thirsty Camel on southbound side of Hawthorn Road. Accused’s vehicle passes the BMW pedestrian crossing Hawthorn Road and the black BMW. | |
| 12:56:07 | Mr Varvodic reaches right tram track. | Accused’s vehicle passes Thirsty Camel. | |
| 12:56:08 | Accused’s vehicle travels south on Hawthorn Road approaching Mr Varvodic who is standing on Hawthorn Road closest to middle solid white line. | ||
| 12:56:09 | Accused’s vehicle impacts Mr Varvodic. | Accused’s vehicle impacts Mr Varvodic. | |
| 12:56:12 | Mr Varvodic in resting position on Hawthorn Road after being struck by accused’s vehicle. | ||
| 12:56:21 | Accused exits her vehicle and starts approaching Mr Varvodic on the ground | Accused exits her vehicle and starts approaching Mr Varvodic on the ground |
Detective Senior Constable Melanie MacFarlane
Detective Senior Constable MacFarlane is a collision reconstruction and mechanical investigation investigator with the Victoria Police. Detective MacFarlane established her qualifications and experience as a collision reconstruction investigator. Her expertise was not challenged by the Defence.
Detective Senior Constable MacFarlane was provided with information from the police who attended the scene. Two sets of CCTV footage from the Camden Hotel were provided. Detective Senior Constable MacFarlane was advised that the ‘throw distance’ - that is, the distance from where the pedestrian was impacted to where he came to lie, was 14.9 metres. Using this information, Detective Senior Constable MacFarlane calculated the speed range of the accused’s vehicle at impact to be between 40 – 53 km/h but more likely between 43 – 51 km/h. The damage to the Peugeot is consistent with an impact at the higher end of the speed range. Detective Senior Constable MacFarlane cannot calculate with any certainty the speed of the vehicle prior to the impact with the pedestrian.
Detective Senior Constable MacFarlane stated that the speed was approximately 50 km/h at impact.
Cross-examination
Detective Senior Constable MacFarlane was not provided with a collision scene diagram.
The skid marks indicated a braking distance of approximately 5.2 metres. The braking distance may have been a little longer than 5.2 metres with ABS braking. It was clarified that the Defence was not suggesting that Ms Georgiou braked before impact. Rather, braking occurred at or immediately after impact.
PRT is the interval that starts when an object or condition first becomes possible for a reasonably alert driver to detect, and ends when the driver initiates a discernible response. The four stages of PRT are as follows:
·First, detection of a hazard which enters the driver’s field of view. This occurs when there is a conscious awareness that a potential hazard is present;
·Second, identification is where the driver must acquire sufficient information about the hazard to be able to decide what action, and particularly what emergency response, is required;
·Third, decision – the driver must decide on a response, for example changing speed or direction or braking;
·Finally, response - the driver initiates the response.
The typical average PRT has been taken to be around 1.5 seconds. This is old research and whilst 1.5 seconds is the general response time, it does not apply in every circumstance. There are a range of affecting factors which may make the PRT shorter or longer.
Re-examination
Many factors may affect the PRT. A driver may identify and anticipate a potential hazard and may be faster to react than to a sudden emergency hazard.
Detective Senior Constable MacFarlane was not provided with a collision scene diagram. The absence of the diagram does not change the witness’ opinion on any of the evidence she has given.
The Informant - Detective Senior Constable Lombardi
Detective Senior Constable Lombardi was briefed on 26 August 2019. In the course of his investigation, Detective Senior Constable Lombardi assessed the CCTV footage, visited the scene of the collision on 7 September 2019 and drove down the route taken by Ms Georgiou from Glen Huntly Road to the collision site on 26 September 2019 using a GoPro camera fitted to the windscreen of the police car. He received photos of the collision site.
Cross-examination
Ms Georgiou has no prior criminal history and no road safety history. She is a practising dentist and is a Captain in the Australian Defence Force.
Exhibit E2, CCTV footage from the Camden Hotel camera 10 was played. DSC Lombardi agreed that witness Sam Nola Payne’s car pulled up in the northbound lane at the intersection of Sycamore Street and Hawthorn Road on the western side. Ms Van Breda’s car was pointed out in the footage.
Admissions of Fact
Ms Georgiou admitted that on Saturday 24 August 2019, she was driving the white 2016 Peugeot 4008 station wagon (Reg: 1IK8HJ) that was involved in a collision at approximately midday on 24 August 2019, with the pedestrian, Mr Michael Varvodic (DOB: 3/10/36). The collision occurred in the vicinity of the Camden Hotel on Hawthorn Road in Caulfield South; and that Mr Varvodic died as a result of his injuries on 25 August 2019.
Edward Malcolm Small:
Edward Malcolm Small was working at the Thirsty Camel Bottle Shop at approximately midday on 24 August 2019. The Thirsty Camel Bottle Shop is attached to the Camden Hotel at 414 Hawthorn Road in Caulfield South.
Mr Small observed Mr Michael Varvodic, wearing a red jumper, standing on the footpath on the opposite side of the street to the Bottle Shop, near the tram stop.
Mr Small observed that Mr Varvodic looked to his right for southbound traffic and states that he
started waddling onto the road. He was walking slow but he knew his own pace... The male was on the road for approximately ten to fifteen seconds still in the process of walking. At the time there was no southbound traffic when he was approaching the centre white line of Hawthorn Road. I observed the male looking at northbound traffic. He was approximately at the brink of the centre white line and started walking on an angle.
Mr Small subsequently heard 'a loud bang on Hawthorn Road'. Mr Small looked to the roadway and 'noticed the white Peugeot SUV in my vision was still moving. The next thing I remember was its brake lights come on'. Mr Small left the Bottle Shop and called Triple 0, whilst others attempted to assist Mr Varvodic.
Mr Small states:
I then noticed a young female was being looked after by another pedestrian on the corner of Sycamore Street and Hawthorn Road further south from Sycamore Street. She appeared to be traumatised I assumed this female was the driver. She appeared to be in shock.
Sam Nola Payne:
Sam Nola Payne was driving her vehicle along Sycamore Street towards Hawthorn Road at approximately midday on 24 August 2019. She had stopped her vehicle at the intersection with Hawthorn Road intending to turn right. Ms Payne states: ‘The traffic was moderate, and I had been waiting for around a minute to turn. The traffic was really heavy, but I had to wait for the traffic... ' Ms Payne states 'I was sort of looking to the left and in my left vision I saw a person hit the bonnet of the white car travelling south on Hawthorn Road. I had this vision of him hitting the bonnet and catapulting forward and hitting the road or seemed to face first. It was just like this shock of a person getting hurt, a vehicle stopping and the driver getting out and then people coming from everywhere'. Ms Payne spoke to Effie Georgiou and asked if she was okay, stating 'it's such a shock for you he seemed to come out of nowhere'. Ms Georgiou said 'I don't know how this happened, he just appeared'. She was just shocked about the fact that she had hit somebody with her car.
Jacob Mark Tipping:
Jacob Mark Tipping was having lunch with Mr Brendan James Sing at the Camden Hotel at approximately midday on 24 August 2019. Mr Tipping heard 'a distinctive braking skid noise and then a loud thud that came from outside on Hawthorn Road'. Mr Tipping ran outside to the roadway and attempted to assist Mr Varvodic. He also spoke to Effie Georgiou and asked if she was okay. Effie stated 'don't know how it happened. He stepped out in front of me and I hit the brakes as hard as I could'.
Brendan James Sing:
Brendan James Sing was having lunch with Mr Tipping at the Camden Hotel at approximately midday on 24 August 2019. Mr Sing heard a 'screeching noise like the sound of tyres outside Hawthorn Road' and he saw Mr Varvodic being struck by the vehicle. Mr Sing left the hotel and attempted to assist Mr Varvodic. He also spoke to Effie Georgiou and asked her if she was okay and what had happened. She was in a bit of shock. Effie Georgiou stated 'he stepped out in front of me'.
Fiona Van Breda:
Fiona Van Breda was driving her white Mercedes north along Hawthorn Road in Caulfield South at approximately midday on 24 August 2019. Ms Van Breda observed the vehicle driven by Effie Georgiou collide with Mr Michael Varvodic. She states: 'I did not see the pedestrian until the accident occurred. He appeared out of nowhere, it all happened very quickly.' She stopped her vehicle and spoke to Effie Georgiou. Ms Van Breda states that 'Effie was in shock, she said she did not see the pedestrian and kept asking where he had come from'. There was not a pedestrian crossing where the accident happened.
ConstablePaul D'Cruze and First Constable Tim Higgs:
Constable Paul D'Cruze was performing patrol duties with First Constable Tim Higgs on 24 August 2019. They were notified of a collision involving a motor vehicle and a pedestrian on Hawthorn Road in Caulfield South. They travelled to the collision scene and arrived at approximately 12.10pm. An ambulance was already in attendance. First Constable Higgs assisted Ambulance Victoria paramedics who were attending to Mr Michael Varvodic whilst Constable D'Cruze performed traffic duties. Constable D'Cruze had a conversation with Effie Georgiou which was recorded by his body worn camera. During this conversation, Effie Georgiou stated 'I was just driving and he just walked onto the road and I slammed on the brakes'. First Constable Higgs also spoke to Effie Georgiou who stated that 'she did not see the male on the road before she hit him and she thinks he may of stepped off the footpath and walked directly into traffic and that she had no time to stop or avoid hitting him'. Effie Georgiou appeared upset and also looked like she was still taking in what had just happened.
Leading Senior Constable Poppeliers:
Leading Senior Constable Darren Poppeliers was performing motorcycle patrol duties in company with Leading Senior Constable John Ellison. They were notified of a collision involving a motor vehicle and a pedestrian on Hawthorn Road in Caulfield South. They travelled to the collision scene and arrived at approximately 12.32pm. Whilst Leading Senior Constable Ellison had a discussion with Effie Georgiou, Leading Senior Constable Poppeliers inspected the roadway and observed two sets of skid marks leading to the stationary position of the white Peugeot. He measured and sketched the collision scene, including the skid marks and the location of items. Leading Senior Constable Poppeliers and Leading Senior Constable Ellison conveyed Effie Georgiou to the Caulfield Police station where she was interviewed.
Dale Westoby Woodland:
Dale Westoby Woodland is a fully qualified motor mechanic working as a mechanical investigator attached to the Collision Reconstruction and Mechanical Investigation Unit at the Victoria Police Forensic Services Centre. On 27 September 2019, Mr Woodland performed a mechanical inspection on Ms Georgiou’s white 2016 Peugeot 4008 station wagon (Reg: 1IK 8HJ). Mr Woodland observed:
·That the front windscreen on the lower driver side had received an impact hit.
·That the bonnet and front bumper on the driver's side had received damage.
·That the vehicle was fitted with vacuum assisted hydraulic brakes, with an electronic controlled Antilock Braking System (ABS).
·That the braking system was intact and that when he operated the brake pedal, it retained its pressure and all wheel hubs locked up as intended.
·That all brake pads had sufficient friction material on them.
·That the hydraulic and hand brake system showed no signs of malfunction or failure and was functioning at the time of the examination.
·That there was no evidence of failure in the rack and pinion steering system prior to the collision.
·That there were no failures of the suspension system, which was intact and in a serviceable condition.
·That the exhaust system was undamaged and intact.
·That both headlight assemblies were operating as intended.
·That both rear light assemblies were found to be intact with the brake and tail lights operating as intended.
·That the control mechanism for the accelerator system was not damaged and still functioned through its full range of operations, with no sticking, binding or obstructions of the pedal.
·That the engine operated through its revolutions per minute as intended.
·That his examination did not reveal any mechanical fault, failure or condition which would have caused or contributed to the collision.
·That the vehicle was in a very good condition prior to the collision.
Leading Senior Constable Dawn Pascoe:
Leading Senior Constable Dawn Pascoe of the Major Collision Investigation Unit produced a not-to-scale aerial guide map of the collision scene on 27 September 2019.
The Defence Case
The accused called one witness, Dr George Rechnitzer.
Dr George Rechnitzer
I have already adverted to the fact that Dr Rechnitzer was called on behalf of the Defence to give expert opinion evidence as to his reconstruction of the circumstances leading up to the collision; and his analysis (that is, his opinion) as to the effects of those circumstances on Ms Georgiou’s PRT.
Dr Rechnitzer established his qualifications and long experience as an engineer and forensic engineer specialising in vehicle related collisions, accident investigation and accident reconstruction.
After outlining the information sources provided to him and the details of his site inspection, Dr Rechnitzer provided his opinion and analysis on the following key issues:
·First, Dr Rechnitzer concluded that the point of impact between the accused’s car and Mr Varvodic was 2.5 metres further north than the police estimate;
·Second, Dr Rechnitzer considered that the pedestrian throw distance (which is the term used to measure the distance Mr Varvodic travelled after impact with the accused’s car before he came to rest) was 16.5 metres, compared to the police calculation of 14.9 metres; and
·Accordingly, as both of these conclusions are used to help calculate the speed of the car at impact, Dr Rechnitzer’s conclusion of the speed at which the accused’s car was travelling at the point of impact varied slightly from the police. Whereas the police estimated that Ms Georgiou was travelling at 43 to 51 km/h at impact, Dr Rechnitzer estimated a speed range of 43 to 54 km/h with an average speed of 49 km/h.
Dr Rechnitzer defined the Driver Perception Response Time through the accepted work on the subject as:
… an interval that starts when some object or condition first becomes possible for a reasonably alert driver to detect and ends when the driver initiates a discernible response (e.g., foot on the brake pedal, or the hands start to turn the steering wheel).
Dr Rechnitzer referred to the four stages of PRT as:
·First: Detection: The detection interval starts when a hazard enters the driver’s field of view. It is the conscious awareness that a potential hazard is present;
·Identification: After detection, the driver must next acquire sufficient information about the hazard, to be able to decide what action (and particularly in emergency response), if any, is appropriate;
·Decision: the driver decides on response, e.g. a change in speed or direction, emergency braking etc.
·Response: The response is initiated and carried out.
Dr Rechnitzer referred to further accepted work on the average PRT as 1.5 seconds (representing the 50th percentile of drivers) through to 2.1 seconds, (representing the 85th percentile of drivers).
Dr Rechnitzer used accepted formulas to calculate the accused’s estimated response times and total stopping distance for a pedestrian crossing into the driver’s path at speeds of 40, 45 and 50 km/h. At 50 km/h, the response distance travelled at an average PRT (i.e. 1.5 seconds) was 21 metres. At the 85th percentile, the response distance travelled was 29 metres. The total stopping distance at an average PRT is 31.8 metres, whilst the total stopping distance, on the 85th percentile, was 39.8 metres.
As part of his reconstruction of the events and circumstances leading to the collision, Dr Rechnitzer reviewed and synchronised the CCTV footage from the two cameras at the Camden Hotel and the camera at the Thirsty Camel bottle shop. The locations of these two venues are depicted in Exhibit B. The location of each of the CCTV cameras (cameras 3 and 10, Camden Hotel; camera 13 Thirsty Camel bottle shop) are best depicted in Figure 31, page 51 of Dr Rechnitzer’s Report (Exhibit 6).
Dr Rechnitzer examined the Thirsty Camel CCTV footage. At page 27 of his Report (TS 205) he states that the footage:
… is significant as it shows vehicle and pedestrian traffic leading up to the collision. Specifically it shows the BMW parked across from collision location, and the driver walking across the road ahead of the approaching Ms Georgiou and her passing of him seconds before impact, and his relevance to her field of view and her likely point of focus approximately 3.8s prior to the collision.
Dr Rechnitzer expanded in his evidence that the prosecution “has missed that there is other activity going on apart from cars, which is quite relevant… to what occurred in this collision”. Dr Rechnitzer provided the composite CCTV footage, showing the synchronised view from all three cameras playing on a single screen; and then provided screenshots at critical times and distances leading up to the collision.
Dr Rechnitzer noted (TS 211) that the BMW pedestrian walks from west to east to his parked BMW car. This is relevant to the movements of Ms Georgiou as it occurred shortly before impact:
It was only after that we put all that together that could – that we saw how closely aligned it was. Aligned meaning in time with what occurred.
Specifically, Dr Rechnitzer referred to Figures 20 to 23 on page 38 of his Report (TS 213, 214) which depict Ms Georgiou’s car passing the BMW pedestrian walking towards the driver’s door approximately three seconds before the impact with Mr Varvodic at 12:56:09. By reference to Figures 24 – 27, Dr Rechnitzer pointed out that the BMW pedestrian reaches his door handle to open the door at 12:56:08; opens the door at 12:56:09, when Ms Georgiou is at the point of impact; and then drives past the crash scene at 12:56:52.
Dr Rechnitzer then used a series of aerial street maps at Figures 31 – 35 to reconstruct the movements of Ms Georgiou’s vehicle southwards on Hawthorn Road; the movements of the BMW pedestrian crossing from west to east in the vicinity just north of the Thirsty Camel; and the movements of Mr Varvodic crossing from east to west on Hawthorn Road at the point just north of Sycamore Street.
In his reconstruction at Figure 30, Dr Rechnitzer depicts the positions of Ms Georgiou’s vehicle at 160 metres and 13 seconds before the point of impact; then at 3.8 seconds and 1.9 seconds before impact; and then at impact.
In Figure 31 on page 51 of his Report (TS 226), Dr Rechnitzer depicts the position of Ms Georgiou at 3.8 seconds before impact and approximately 50 metres from impact. The point is made clear by markings which measure the distance along the roadway.
In addition to these reconstructed positions on the aerial maps, Dr Rechnitzer referred to a computer graphic reconstruction at Figure 37 on page 57 of his Report (TS 237) to simulate Ms Georgiou’s ‘driver view’ at approximately 3.75 seconds before impact, showing the BMW pedestrian approaching his vehicle and a relative view of Mr Varvodic in the distance. Dr Rechnitzer stated that the driver must prioritise the closer hazard of the BMW pedestrian rather than attending to each simultaneously.
Dr Rechnitzer concluded (p.58 of his Report TS 241/2):
From this analysis and reconstruction of the vehicle’s movements, it would appear that Ms Georgiou’s attention and visual focus had likely been diverted by the actions of the BMW driver crossing in her path and walking adjacent to her vehicle as she passed, and that once she was clear of him in the BMW, it was only at this point, about one second to 1.5 seconds later that Ms Georgiou’s [sic] likely first saw the pedestrian Mr Varvodic in her direct path, and the imminent collision, and commenced her emergency response approximately 16 to 23 m before the POI, by emergency braking.
Dr Rechnitzer concluded that it would appear that after the potential hazard of the BMW pedestrian ‘no longer required her attention, her focus was thus only then returned fully to the road ahead. It is then that she “suddenly” sees the pedestrian which she perceives as having just stepped out in front of her’. (TS 244)
Then (at p.64 TS 244):
From this analysis and reconstruction of the vehicles’ movements, it would appear that Ms Georgiou’s attention and visual focus had been diverted by the actions of the BMW driver crossing in her path and walking adjacent to her vehicle.
Thus, in my opinion, a likely explanation for Ms Georgiou’s apparent failure to see the pedestrian previously, was that Mr Varvodic was not the primary potential hazard at that time - but rather the BMW driver became conspicuously so, as seen in the composite CCTV video compilation.
Then (at p.66 TS 245):
Whilst there were not ‘moving cars’, the presence of the BMW driver crossing in front of her, and then moving to his vehicle adjacent to her path of travel would certainly constitute a clear and present hazard that required her attention, and for, a critical period of time.
Dr Rechnitzer made the point that in built-up areas, such as that south of Glen Huntly Road on Hawthorn Road, there are intersecting streets before the collision point, entries to business premises and pedestrian traffic on footpaths on each side. He stated (p.66 TS 245), ‘Hence, a driver must be vigilant on both the road ahead and looking left and right whilst navigating this busy area.’ Later he said: (p.67 TS 245): ‘much driving tasks [sic] are subconscious and “automatic”, without all necessarily registering in the conscious mind and memory.’
Dr Rechnitzer concluded his evidence-in-chief by stating (at p.68 TS 246):
The driver’s visual attention is not at all as seen from the continuous single focused viewing of CCTV video of the same scene, that is, of the pedestrian crossing the roadway from the Camera 3 view. A driver’s perception of the road ahead involves complex human factors with driver’s eye movement and visual attention having to both look ahead on the roadway and scan the environment, and it does so by short duration glances at the roadway and adjacent activities, vehicle and pedestrian movements along this busy section of Hawthorn Road. The driver’s focus and attention has to be prioritised to the more approximate and immediate potential hazards (i.e. in this case the BMW driver pedestrian) over the more distant crossing movement of the pedestrian Mr Varvodic who did not represent a risk until, clearly, much later.
…
Although, upon viewing the CCTV footage, it may appear that Ms Georgiou should have readily avoided the collision, this becomes a simplistic and thus false perception when it ignores the actual realities for her negotiating that environment, and specifically as discussed, the likely distraction caused by the BMW driver/pedestrian at the time and unsafe manner in which he crossed the road ahead of her.
Cross Examination
Dr Rechnitzer’s Report and evidence did not address whether Ms Georgiou could [that is, did actually] see the BMW pedestrian or not. Dr Rechnitzer stated that it addressed ‘where her attention as a driver could have been distracted at the critical time, and not, at the same time, being able to pay attention to Mr Varvodic’.
Ms Georgiou ‘seeing’ the BMW pedestrian and ‘being distracted’ by him are two different things. There is no basis to assume that Ms Georgiou couldn’t see the BMW pedestrian because he was closer to, and crossed right in front of her. More importantly, the BMW pedestrian presented as a hazard to her.
It was put to Dr Rechnitzer that Ms Georgiou was specifically asked in the Record of Interview whether her view was obstructed by anything; and whether she was or was not distracted by anything. The questions and answers from the Record of Interview were read to Dr Rechnitzer. Dr Rechnitzer replied that Ms Georgiou would not necessarily recall those things and added, ‘I’m not a psychologist’. Ms Georgiou was answering questions after a shocking crash. Dr Rechnitzer, in effect, emphasised he was not giving psychological evidence and he was aware of the answers Ms Georgiou provided in the Record of Interview.
Dr Rechnitzer agreed that there is a distance between the BMW driver’s side of a parked car and a yellow dotted line that delineates the left from right southbound lanes. Looking at Exhibit Q, page 1, Dr Rechnitzer confirmed that Mr Varvodic was fully within the southbound tram tracks at 12:56:03. As Mr Varvodic stood at that point, Ms Georgiou’s Peugeot had already passed the BMW potential hazard (Exhibit Q, page 2).
Dr Rechnitzer agreed that Mr Varvodic was entirely within the southbound tram tracks at 12:56:01, and that Exhibit 1 is wrong where it states that Mr Varvodic entered between the tram tracks at 12:56:04.
The calculation of estimated speed is important to the consideration of the driver’s PRT.
The expectation of a hazard can reduce a driver’s PRT.
Dr Rechnitzer disagreed that the fact of seeing the first pedestrian, alerts or heightens a driver’s sense of awareness of pedestrians. However, Dr Rechnitzer considers that a short interval between seeing the first and second pedestrian would have a less positive benefit on PRT. Many factors will affect a driver’s PRT.
It was put, by reference to the response distances in Figure 31 of Dr Rechnitzer’s Report, that if Ms Georgiou had seen the BMW pedestrian or Mr Varvodic, those distances were sufficient to pull up short of the impact with Mr Varvodic. By reference to Figure 31 and then Figure 34, Dr Rechnitzer eventually agreed.
It was put that Dr Rechnitzer had earlier said that the driver could not attend to both hazards simultaneously. Dr Rechnitzer stated that the driver must prioritise. He qualified this and said he would not be dogmatic about a hypothetical and was not saying that absolutely. It depends on the situation. Dr Rechnitzer agreed that in crossing the road, Mr Varvodic presented as a potential hazard.
Final Addresses
The Crown Final Address
The Crown’s final address was divided into three parts:
·Overall circumstances and timings;
·Elements of dangerous driving; and
·The Crown’s ability to exclude the hypothesis consistent with innocence.
It is necessary to address each in turn.
Mr Gibson QC, on behalf of the Crown, first turned to the conditions that day:
·Mr Varvodic was 174 cm tall and 91 kg - he was not diminutive;
·Mr Varvodic was wearing a red top and black pants;
·The area was built up with mixed residential and light commercial buildings;
·The road was straight and mostly flat with a slight downhill from Glen Huntly Road;
·It was about midday on a clear, fine, and dry day, with no adverse atmospheric conditions. It was described as a ‘beautiful day’ and this is not insignificant.
By reference to the CCTV timestamps:
·At 12:55:55 the last southbound car before the collision passed Mr Varvodic;
·At 12:55:58 Mr Varvodic crossed to the right southbound lane;
·At 12:56: 00 Mr Varvodic crossed the first tram track;
·At 12:56:01 Mr Varvodic was positioned entirely between the tram tracks;
·At 12:56:09 Mr Varvodic was struck by the accused’s car.
Mr Gibson submitted that once Mr Varvodic crossed the eastern-most tram track at 12:56:00:
·Mr Varvodic was available to be seen; and
·He ought to have been seen by a driver travelling in that lane
because he was directly in front of the accused’s line of travel. At questions 109ff of the Record of Interview, Ms Georgiou stated that she was travelling in the right lane of the southbound carriage way.
In the nine second continuum, there was a failure to see and react accordingly which (the Crown submits) constitutes dangerous driving.
Despite Mr Varvodic being at his ‘most visible’, the accused stated variously to witnesses that he ‘just appeared’ and that she ‘didn’t see him before hitting him’.
Considering the accused’s PRT, it is clear that she only saw him just before impact, but too late to brake.
Next, Mr Gibson outlined the elements of dangerous driving. Mr Gibson focussed straight away on the issue for determination in the trial; was the driving characterised by such a serious departure from the level of care and attention required in the circumstances that it constituted a real risk of danger to persons in the vicinity? The features which distinguished the accused’s driving from careless driving were (he submitted):
·First, Mr Varvodic’s position in the laneway for a lengthy period which provided an opportunity over time and distance for the accused to see him; and
·Second, the accused’s failure to see the pedestrian and to take preventative action.
It was not disputed that the accused’s vehicle brake skid marks occurred after the point of impact. It was not a case where the accused was directly behind another car. If that had been the case, it would be careless driving. But here, there was prolonged inattentiveness in a built-up area. The test is objective, and the community expects a driver to see and avoid a stationary or near stationary human being in the middle of the road.
The Defence referred to the BMW pedestrian as an intervening physical phenomenon which interfered with the accused’s ability to see Mr Varvodic on the road ahead. Mr Gibson submitted that a number of factors exclude this intervening physical phenomenon as a reasonable hypothesis consistent with innocence.
First, Mr Gibson submitted that Ms Georgiou disavows such a thing as having an effect or bearing on her driving. There is no evidence that she saw the BMW pedestrian in the period prior to impact. Second, there is no evidence that Ms Georgiou was distracted generally. In fact, her answers in the Record of Interview were to the contrary. Mr Gibson referred to the accused’s answers:
At 114 – 126: Ms Georgiou was travelling in the right lane. She did not recall cars parked within 50 metres of the intersection with Sycamore Street. There may have been cars on the other side, but she did not think so.
At 133: When asked if there is anything that could possibly have obstructed her view of a pedestrian crossing the road, she referred to oncoming traffic in the opposite direction.
At 163 – 169: Hawthorn Road is a straight road. There were no vehicles directly in front of Ms Georgiou. When asked if vehicles coming towards her distracted her, she stated there were oncoming vehicles but she can’t consciously say that they ‘distracted’ her. She was not concerned about oncoming vehicles. There is a concern about the tram tracks because if you drive directly over them your car tends to slide a bit.
At 176 – 177: Ms Georgiou had just come off Glen Huntly Road. She believed there were pedestrians who crossed when the light was flashing red. She remembers thinking that was risky.
At 178 - 179: Ms Georgiou was not distracted by her phone, listening to music or anything.
At 274 – 275: Ms Georgiou didn’t have any ‘problems’ on her mind. She was thinking about the pedestrian crossing and was probably concentrating on the way home.
At 349 – 354: Ms Georgiou may have been looking at oncoming cars to the right. She stated, ‘I wish I could tell you’. She was asked if there were pedestrians on the side of the road. She stated, ‘I can’t recall any on the left, on the footpath’.
Accordingly, Mr Gibson submitted that there is no evidence that Ms Georgiou was distracted by the BMW pedestrian; no evidence that the BMW pedestrian’s presence on the roadway or his path to the door occupied the accused’s attention. These specific answers should be preferred to Dr Rechnitzer’s generalised conclusion at page 67 of his Report that the BMW driver’s presence and path would have occupied her attention. Mr Gibson submitted that I should reject this consideration. Similarly, Mr Gibson submitted I should reject Dr Rechnitzer’s opinion that many driving tasks are subconscious without registering in a driver’s memory; and that ‘a driver may not consciously recall seeing all’ as drivers do a lot of things automatically as being applicable to override Ms Georgiou’s answers to police in her record of interview.
Mr Gibson referred to the fact, and to Dr Rechnitzer’s evidence on this topic to the effect, that the accused gave her Record of Interview after the occurrence of a traumatic event. Yet the accused provided information about a pedestrian crossing Glen Huntly Road on the red flashing light and otherwise seemed okay to answer questions.
Mr Gibson referred to Dr Rechnitzer’s conclusion that account must be taken of:
·The intervening physical phenomenon of the BMW pedestrian
·Which occurred as the accused approached at a distance 50 – 38 metres; and
·That the accused’s PRT of 1.5 – 2.1 seconds commenced from that point.
In his evidence, Dr Rechnitzer focused on the position of the accused’s Peugeot relative to the BMW pedestrian at a point some 3.8 seconds before impact when the accused was 50 metres from the impact location. Mr Gibson submitted that if the accused had reacted at that time then she had time and distance to avoid the collision. Even if the accused gave priority to the immediate hazard, this would not excuse the failure to have regard to Mr Varvodic.
Mr Gibson submitted that the community would expect regard to be had to both. The BMW is a potential, and not an emergency hazard, and the community would expect avoidance, even if the BMW pedestrian took up some priority. The BMW driver was never in the right-hand (west) lane of the southbound carriageway at a critical time.
In any event, Mr Gibson submitted that the accused ought to have seen Mr Varvodic on the roadway before this time. By reference to Dr Rechnitzer’s Report, Figures 21 and 22, the BMW driver was well clear of the laneway in which the accused was travelling by 12:56:05.
Ultimately, Mr Gibson submitted I should reject the intervening physical phenomenon as a reasonable hypothesis consistent with innocence.
It is unreasonable to conclude that the BMW pedestrian should have taken up the entirety of the accused’s attention, especially as he was not in the west, southbound lane as the accused’s car approached him.
The BMW pedestrian was not referred to in the Defence response. It was first referred to in Dr Rechnitzer’s Report.
The community expects that if the accused was distracted by the BMW pedestrian, she would have slowed, stopped, or taken other actions. The accused also failed to respond to the BMW pedestrian.
The Defence Closing Address
Mr Gurvich QC addressed six issues which he said individually and in combination must lead to a reasonable doubt.
First, the CCTV camera 3 (Exhibit C2) provided a different vantage point to that of a driver. The camera was elevated and positioned close to the collision. Its vantage was clear and undistracted. It was therefore an artificial (and not human) view. It was not reflective of the accused’s vision of the impact. Furthermore, the viewer watches the footage with an aspect of anticipation. In real time, Ms Georgiou did not anticipate the collision.
Dr Rechnitzer gave evidence (TS 247) that there are complex human factors which must be considered. He stated that the driver’s view of the roadways are gained through short duration glances and are prioritised to close immediate events. A driver may not see a pedestrian because it is not necessarily added to the immediate perception. In this way, the CCTV Camden Hotel camera 3 footage is artificial compared to the driver’s perception.
Next, Mr Gurvich addressed questions in the Record of Interview. Ms Georgiou stated that she was paying attention and that she was not distracted. At Questions 207 to 210 Ms Georgiou was asked whether there were any other vehicles in front of her. She stated, ‘I don’t think [so]. Not right in front of me.’ She was not sure if there were vehicles behind her, or if any other vehicle turned with her from Glen Huntly Road onto Hawthorn Road. Mr Gurvich submitted that she could not be sure if there was a clear, uninterrupted view from Glen Huntly Road to the accident.
Mr Gurvich submitted that I ought to find Ms Georgiou to be a person of good character – she has no criminal history, and specifically, no driving offence history; she works as a dentist and she is a Captain in the Australian Army. Ms Georgiou’s good character ought to make her answers in the Record of Interview more credible and should make it less likely that she committed the offence. I should therefore conclude that she was paying attention and not driving dangerously.
Ms Georgiou has given an account denying the allegations and denying prolonged inattention. If this is accepted, then she must be found not guilty. The Defence accepts that in her Record of Interview, Ms Georgiou was wrong when she stated that Mr Varvodic just ‘stepped out’ onto the roadway. Mr Gurvich submitted that this was not dishonesty, rather rationalisation. Mr Gurvich took me to the iterations of the effect of the Liberato direction as it applies to the answers given by Ms Georgiou in her Record of Interview.
Ultimately, Mr Gurvich submitted I should accept the Record of Interview as truthful and I should find that Ms Georgiou was genuinely trying to assist police with their enquiries. I should take account of the fact that she was shaken by what had happened only a couple of hours before.
Mr Gurvich submitted that, whilst the BMW pedestrian was not mentioned in the Record of Interview, it should not be disavowed as a phenomenon which occurred about three seconds before impact. As such, there were two hazards; one after the other. In her Record of Interview:
At 349 Ms Georgiou stated that she may have been looking at oncoming cars. She stated, ‘I wish I could tell you’.
At 351 ‘I wish I could think back’
At 381 ‘I wish I could remember. I wish I’d taken note of everything. I just didn’t expect…’
Dr Rechnitzer explained in his evidence that a driver may not recall a number of matters which are absorbed subconsciously. Drivers do a lot of things automatically.
Mr Gurvich submitted that here, the evidence of the expert, the accused’s character and her honesty combine to make the answers in her Record of Interview true. I should therefore have a reasonable doubt about the Crown case.
The third issue Mr Gurvich considered was the BMW pedestrian.
Mr Gurvich took issue with the Crown submitting that the BMW pedestrian was not in the western lane. Of course, the pedestrian was crossing from west to east, so he had to be in the western lane at some point.
Dr Rechnitzer gave evidence that the BMW pedestrian was a likely point of focus and is quite relevant. In Dr Rechnitzer’s opinion, the BMW pedestrian presented as a hazard priority and a likely explanation for the accused failing to see Mr Varvodic, who was not the priority. Mr Gurvich submitted that Dr Rechnitzer’s evidence was not challenged on this point and in any event (as Mr Gurvich correctly and properly reminded me) the Defence bears no onus of proving the accused’s innocence through the evidence of Dr Rechnitzer.
As such, Mr Gurvich submitted that the reasonable possibility of distraction cannot be excluded especially when I take into account:
·The accused’s answers in her Record of Interview (to which I have just referred) stating that she wished she could remember everything; and
·The fact that she encountered the BMW pedestrian three to five seconds before impact. This required her attention at, and for, a critical period.
Mr Gurvich referred to the screenshot of at 12:56:08 from Exhibit D, and submitted it was reasonably possible that Ms Georgiou had reacted to the BMW driver. He submitted that it must be shown by the Crown to be unreasonable, otherwise the accused must be found not guilty.
The fourth issue Mr Gurvich addressed the issues relating to distances and visibility. Mr Gurvich referred to GoPro footage and submitted that there is no evidence that Ms Georgiou should have seen Mr Varvodic at any particular distance other than when she passed the BMW pedestrian.
Mr Gurvich, in effect, referred to this as a lacuna in the Crown case - when is it asserted to be dangerous driving for not seeing the pedestrian: 13 seconds before impact as Mr Varvodic stepped onto the roadway; or was it 9 seconds before impact when Mr Varvodic moved between the tram tracks; or was it at some point within the 9 seconds? This was an ill-defined period of time in the absence of any other feature of dangerous driving. Mr Gurvich submitted that the possibility or opportunity to see a pedestrian is different to dangerous driving. It is not for the Court to pick an arbitrary point and conclude that it was dangerous.
Fifthly, Mr Gurvich submitted that there was a reasonable possibility of other traffic on Hawthorn Road. It is reasonably possible that other vehicles crossed Hawthorn Road in front of the accused. The CCTV footage does not cover the whole distance between Sycamore Street and Glen Huntly Road. Northbound vehicles may have turned into any of the intersecting streets north of Sycamore Street and out of the view of the CCTV camera.
Finally, Mr Gurvich submitted that I must consider the effect of the accused’s PRT and the question of inattention. A PRT of 1.5 seconds to 2.1 seconds must eat into the period of time and distance in which it is alleged Ms Georgiou was inattentive.
This means that if the BMW pedestrian provided a distraction, it is reasonably open to find that Ms Georgiou was thereafter inattentive. Taking into account the statement of Barwick CJ at p.52 in McBride and Corboy J in Geiles v Kelly at [69], mere inattention must lead to a verdict of not guilty.
Analysis
Initial Findings
Although certain matters were not in dispute, I have made my own assessment of the evidence and I am satisfied that:
·Geography. Hawthorn Road runs north-south. The section between Glen Huntly Road and North Road is a straight section of road with a slight downhill gradient from Glen Huntly Road. It provides for two lanes of traffic in each direction. The left lane southbound allows for parked cars. The right lane southbound is laid with tram tracks. The road runs through a mix of residential and light commercial building premises from Glen Huntly Road to Sycamore Street. There are three T-intersecting streets on the left or east side of the southbound carriageway before a driver reaches Sycamore Street.
·Weather and road conditions. The weather on 24 August 2019 was fine, dry and sunny. Visibility was good. As Ms Georgiou drove south down Hawthorn Road at about midday, the sun was just behind her. There is no evidence that Ms Georgiou’s vision of the roadway was affected by sun glare or sun position. The relevant portion of Hawthorn Road is bitumen with concrete inlay to support the tram tracks. The road condition was dry.
·Manner of driving. I am satisfied that prior to the collision, Ms Georgiou was driving at or within the speed limit. There is no evidence that she suffered any health issues which adversely affected her driving on that day. Moreover, I am satisfied that Ms Georgiou was not distracted by internal devices within the car such as her phone, the radio or car stereo.
I am satisfied that at about midday on 24 August 2019, the accused was driving a white Peugeot car which collided with pedestrian Michael Varvodic. At the time of impact, Ms Georgiou’s vehicle was travelling at approximately 50 km/h. The vehicle did not commence to brake until the point of impact, or (more likely, as the car was fitted with ABS brakes) in the moment before impact. Mr Varvodic died on 25 August 2019 as a result of the injuries sustained in the collision. In this way, Ms Georgiou caused Mr Varvodic’s death when she struck him with her car.
Further in relation to this last finding, I am satisfied that after Mr Varvodic stepped off the easternmost curb of Hawthorn Road at 12:55:46 and into the southbound carriageway, the following time stamps on the CCTV footage accurately depict the following movements:
At 12:55:55 the last southbound car before the collision passed Mr Varvodic;
At 12:55:58 Mr Varvodic crossed to the right southbound lane (TS 176, 272, 307);
At 12:56:00 Mr Varvodic crossed the first tram track (Exhibit D, TS 273);
At 12:56:01 Mr Varvodic was positioned entirely between the tram tracks (TS 273);
At 12:56:09 Mr Varvodic was struck by the accused’s car.
In these circumstances, I am satisfied that the true issue for determination; whether the Crown has satisfied me beyond reasonable doubt that it has proved the second and third elements as to whether Ms Georgiou’s driving was dangerous, rests upon the Crown being able to prove beyond reasonable doubt that:
·Ms Georgiou was inattentive for a prolonged period as she drove south down Hawthorn Road prior to impacting with Mr Varvodic; and that
·In all the circumstances, Ms Georgiou’s driving, whilst inattentive for a prolonged period, created risks that significantly exceeded the risks which are ordinarily associated with driving, in that it created a real risk that members of the public in the vicinity would be killed or seriously injured.
In this way, I must be satisfied that Ms Georgiou drove along Hawthorn Road for a prolonged period whilst inattentive. If I am not satisfied beyond reasonable doubt of prolonged inattention, or if I find that Ms Georgiou was, for example, momentarily inattentive, then I must enter a verdict of not guilty. ‘Mere inattention’ may constitute negligence, but the test for dangerous driving stands in sharp contrast to the concept of negligence, which requires some serious breach of the proper conduct of a vehicle on a road. The breach must be so serious as to be in reality potentially dangerous to others.
Use of Good Character
It was submitted that Ms Georgiou is a person of good character, and specifically, has no prior criminal history for driving offences.
I accept Ms Georgiou to be a person of good character. The law states, as I have already explained, there are two ways I can use that evidence. First, I may use her good character in assessing the answers Ms Georgiou gave in her Record of Interview and her statements to witnesses and police after the collision. Second, I may use her good character in determining the likelihood that she committed the offence with which she is charged.
I turn first to the answers provided by Ms Georgiou in her Record of Interview and her statements to witnesses and police. Ms Georgiou variously stated that:
·She would like to think she was driving safely up to the point of the collision; and
·Mr Varvodic ‘suddenly appeared’ and in the Record of Interview that he ‘just appeared in front of me’.
It is apparent that Ms Georgiou’s answers as to her perception of Mr Varvodic’s sudden appearance before her conflict with the objective evidence. Mr Varvodic had been stationary or near stationary between the southbound tram tracks and heading towards the centre of the roadway for nine seconds before the impact.
I am not satisfied Ms Georgiou was lying to avoid culpability. Rather, I use her character to conclude that, in the shock of the event and its aftermath, she was rationalising his appearance and her sudden perception of him.
Ms Georgiou’s answers expressing her opinion on the manner of her driving to the point of collision are not particularly relevant to my assessment. The test of dangerous driving is assessed objectively. In other words, the assessment is made independently of the state of mind of the accused driver. Accordingly, a driver may consider their driving was, in their opinion, adequate to the circumstances but still be found guilty of driving dangerously. In this way, Ms Georgiou’s answers may have been given honestly but cannot significantly bear on the ultimate issue.
Likewise, although the law states that I can use good character in determining the likelihood that Ms Georgiou committed this offence, I take into account the objective assessment. The question of character is likely to be more significant when the crime alleged involves proving the accused’s state of mind. Having said that, I do take into account that Ms Georgiou has no prior convictions and no prior criminal driving history. I note also that her driving on the day was not affected by drugs, alcohol, internal distractions in the car, health issues, exceeding the speed limit or a course of erratic driving before the collision. In this way, I can and do give some weight to her character in assessing the likelihood of her having committed this offence.
Michael Varvodic - height and weight
In his opening and closing addresses, Mr Gibson stated the height, weight and clothing of Mr Varvodic.
Unfortunately, Mr Varvodic’s height and weight were not actually provided in evidence. These facts do not form part of the notice of agreed facts, or otherwise specified to be the subject of other agreement between counsel.
I have seen the CCTV footage and have been provided with still-shots of Mr Varvodic. I have seen and noted how he stood and his clothing on the day of the collision.
I conclude that he was a man of medium height and medium to heavy build. I adopt the words of Mr Gibson who described Mr Varvodic was ‘not diminutive’.
Crown failure to provide expert opinion on the Thirsty Camel CCTV footage / BMW pedestrian
The Defence criticised the Crown for failing to provide a collision reconstruction diagram. I have been asked to consider drawing an adverse inference against the Crown (that is, that the evidence would not have helped it). In my view, the lack of a reconstruction diagram is only relevant in so far as it goes to the real issue raised by the Defence in this respect – that is:
·First, the failure of the prosecution to take into account and provide an expert opinion on the intervening physical phenomenon of the BMW pedestrian; and
·Second, whether Ms Georgiou may have been distracted by his presence on the roadway.
It is common between the parties that this phenomenon was only discovered relatively recently, when the expert called by the Defence, Dr Rechnitzer, undertook his own reconstruction of the circumstances leading to the collision. Dr Rechnitzer found the BMW pedestrian and reconstructed his movements relative to the position of the accused’s Peugeot just prior to the collision by studying the Thirsty Camel CCTV footage, which the Crown provided to the Defence under its disclosure policy.
Because this factor (submitted to be an intervening factor) was only recently discovered, it was not mentioned in either the written prosecution opening or the written Defence response.
Mr Gibson stated that the phenomenon is not relevant, and as such, no adverse conclusion ought to be drawn against the Crown for not providing a reconstruction diagram or an opinion on this matter. Specifically, the Crown relies on answers provided by Ms Georgiou on the day of the collision to the effect that, whilst she had seen a pedestrian crossing on a red flashing sign at the Hawthorn Road and Glen Huntly Road intersection lights, she was not distracted by external phenomena in the seconds leading to the impact.
I am satisfied that the evidence was not withheld by the prosecution; nor was it intentionally ‘overlooked’. Rather, there was perhaps a complacent reliance placed upon the answers provided by the accused in the Record of Interview.
Further, I can readily conclude that the evidence does not assist the prosecution. By that, I mean that the discovery and existence of the BMW pedestrian evidence does not now form part of the prosecution’s evidentiary matrix for guilt. Having said that, I am not implying that the evidence necessarily and of itself, fatally contradicts the prosecution case.
In my view, the issue as to what consequences flow from the existence of this evidence still remain to be determined in the course of this judgment.
Expert Evidence
Both experts estimated the Peugeot’s speed according to the accepted formula of calculation by reference to what is known as the ‘pedestrian throw distance’; that is, the distance from impact to where the pedestrian came to rest on the roadway.
Dr Rechnitzer estimated the point of impact as 2.5 metres further north than the police. The throw distance therefore varied from the police estimate of 14.9 metres compared to Dr Rechnitzer’s estimate of 16.5 metres [sic].
From this, Dr Rechnitzer estimated the accused’s vehicle’s speed range at the point of impact was 43 – 54 km/h with an average of 49 km/h. Detective Senior Constable McFarlane estimated a speed range of 43 – 51 km an hour, but considered the speed to have been at the slightly higher end of the range and therefore estimated an approximate speed of 50 km/h at impact. This speed seemed to be accepted by the parties during the course of the trial.
The experts both gave evidence about PRT. The evidence they gave was similar, if not the same, as to the four stages or components of PRT. Both experts gave evidence that, on average, a driver takes about 1.5 seconds from detection of the hazard through to initiating the response. Dr Rechnitzer elaborated – that the average represents the 50th percentile. Further research shows that, taking it out to the 85th percentile, a driver’s PRT may slow to about 2.1 seconds.
Of course, neither expert interviewed or provided evidence personal to Ms Georgiou.
Thereafter, Dr Rechnitzer used timestamps on the CCTV footage, placement of the vehicles and pedestrians (that is, the BMW pedestrian and Mr Varvodic) against recognised landmarks in the CCTV footage, and then provided measurements of road distance, to reconstruct the circumstances up to the point of impact. The reconstruction is set out in Figure 31 of his Report, with specific aspects of Figure 31 reproduced in Figures 32 to 35.
The trial proceeded on the basis, and I accept the accuracy of, Dr Rechnitzer’s reconstruction diagram.
A significant part of Dr Rechnitzer’s evidence focused on the BMW pedestrian.
By reference to Figure 31, the BMW pedestrian crossed from the western side of Hawthorn Road approximately 55 metres north of the point of impact at 12:55:51. Fourteen seconds later, at 12:56:05:
i.The BMW pedestrian is standing on the eastern (left) southbound laneway at the rear of his parked BMW;
ii.The rear of the BMW is depicted in Figure 31 as just over 40 m from the point of impact;
At that time:
iii.The accused’s vehicle is depicted in the western (right) southbound lane. The front of the accused’s vehicle is about 48 metres from the point of impact;
iv.The accused’s vehicle was 3.8 seconds from the point of impact;
v.The accused’s vehicle was therefore 7 to 8 metres from the BMW pedestrian who was moving towards the driver’s door of his vehicle.
It was never suggested, and there is no evidence, that the BMW pedestrian was in any danger from the Peugeot. As I have already outlined, the southbound east laneway where the BMW car was parked measured 3.46 metres wide and the southbound west laneway along which the accused car travelled past the BMW, measured 3.4 metres wide.
Although it is implicit from what I have already said, I accept the accuracy of Dr Rechnitzer’s outline of the existence and movement of the BMW pedestrian, the location of the BMW, and the fact that Ms Georgiou passed the BMW pedestrian and his car in her Peugeot a matter of seconds before the point of impact.
It is necessary to look closer at a number of statements made by Dr Rechnitzer in his evidence past this point.
Dr Rechnitzer states that the BMW pedestrian and BMW car were relevant to Ms Georgiou’s field of view 3.8 seconds prior to the collision. As an engineering expert, it was within Dr Rechnitzer’s field of expertise to identify all of the physical phenomena present on the roadway in the circumstances leading up to the point of impact.
What Dr Rechnitzer could not do, however, is give evidence of Ms Georgiou ’s state of mind. Therefore, I do not accept his statement that
it would appear that Ms Georgiou’s attention [and] visual focus had likely been diverted by the actions of the BMW driver crossing in her path and walking adjacent to her vehicle as she passed…[7] [my emphasis]
It is one thing to identify the physical phenomenon in order to opine that it was available as a distraction. It is another to say, in the absence of any other evidence, that it is likely that Ms Georgiou’s attention and visual focus had been diverted. Whilst it may be possible to say this in some circumstances (for example, on the occurrence of a loud bang or explosion), there was no such occurrence here. Furthermore, the expert did not interview Ms Georgiou and she herself said nothing to support the proposition that her attention and visual focus had been diverted in the answers she gave in the Record of Interview.
[7] Note the omission of ‘and’ in TS 242 compared to p.58 of exhibit 6.
Dr Rechnitzer posed the BMW pedestrian as a ‘potential hazard’. On Dr Rechnitzer’s calculation, the BMW pedestrian crossed the west laneway in which the accused’s vehicle was travelling at 12:56:00 (Figure 51, Exhibit 6). By refence to Figure 34, at 12:56:05, the accused’s vehicle came to the point described (that is, 3.8 seconds before the point of impact) in Figure 34 and was a distance of 7 to 8 metres from the BMW pedestrian as he moved from the rear of his car to the driver’s door in the eastern laneway at 12:56:05. In other words, the BMW pedestrian had cleared the accused’s laneway approximately five seconds earlier.
Dr Rechnitzer then stated that after the accused’s car passed the BMW pedestrian, he ‘no longer required her attention, her focus was thus only then returned fully to the road ahead.’ I emphasise again that the BMW pedestrian and the accused’s vehicle occupied different lanes. The reality is that for nine seconds, Mr Varvodic stood nearly stationary in the lane in which Ms Georgiou travelled. Ms Georgiou’s view of the roadway ahead where Mr Varvodic stood was not blocked by the BMW pedestrian. The BMW pedestrian was already crossing the accused’s laneway at 12:56:00 - that is when Mr Varvodic was entering between the tram tracks.
It is therefore difficult to accept Dr Rechnitzer’s conclusion that that the BMW pedestrian was a ‘conspicuous potential hazard’, then, ‘primary potential hazard’; also described as ‘certainly constitut[ing] a clear and present hazard’ that required her attention, at and for, a critical period of time. I reach this conclusion for the following reasons:
i.First, the BMW pedestrian was not standing in, or walking across, the accused’s vehicle’s lane at 12:56:05;
ii.Second, it is not suggested that in moving to the door of his vehicle, the BMW pedestrian made any sudden untoward or irresponsible movements – such as moving too far out in his own laneway;
iii.Finally, there is simply no evidence that Ms Georgiou saw or was in any way distracted by the BMW pedestrian. When interviewed by police, she stated on several occasions that she could not remember seeing anything or being distracted by anything (including pedestrians) in the critical time leading to the point of impact.
It is necessary to say something further about this last point. Dr Rechnitzer gave evidence that many driving tasks are subconscious and automatic without a driver necessarily registering these events in the conscious mind and memory. The Defence relies on this and submits that it should, I take it, in effect, be preferred to the answers given by Ms Georgiou in her Record of Interview.
In my view, it is difficult to do so. After looking at the CCTV footage, and carefully reviewing the evidence of Dr Rechnitzer, I conclude that there is no evidence to suggest that Ms Georgiou either saw or was distracted by the BMW pedestrian. Certainly, there is no evidence that she slowed or swerved as she approached and passed. In the absence of any subjective or objective evidence, I am unable to accept that Dr Rechnitzer’s generalised statement of driver cognition should be applied and preferred over the reality of the evidence and the circumstances in this case.
Dr Rechnitzer stated that a driver must be vigilant on both the road ahead and looking left and right negotiating a busy area. Specifically, he stated that (as I have already set out):
A driver’s perception of the road ahead involves complex human factors with driver’s eye movement and visual attention having to look both ahead on the roadway and scan the environment, and it does so by short duration glances at the roadway and adjacent activities, vehicle and pedestrian movements along this busy section of Hawthorn Road. The driver’s focus and attention has to be prioritised to the more proximate and immediate potential hazards (i.e. in this case the BMW driver-pedestrian) over the more distant crossing movement of the pedestrian Mr Varvodic who did not represent a risk until, clearly, much later.
I readily accept the complexity of factors which contribute to a driver’s perception of the road and surrounding environment. I also accept that some factors may be prioritised by a driver. I do not accept however that (and especially in the absence of any evidence) the BMW pedestrian loomed as an all absorbing potential hazard which entirely distracted the accused from seeing the presence of Mr Varvodic on the roadway. Further, it is reasonable to expect that the accused had already seen, noted and absorbed the presence of the BMW pedestrian before 3.8 seconds prior to the point of impact.
I do not understand Dr Rechnitzer’s statements about looking at the road ahead on the roadway, scanning the environment or even prioritising to suggest that a driver only scans ahead with myopic vision; looking only a few metres ahead at any one time.
I therefore consider it somewhat artificial to elevate the presence of the BMW pedestrian to being a distraction of such an absorbing nature that the accused had to, and did give it, her full priority and attention to the exclusion of other factors on the road ahead.
I shall return to this topic in my examination of inferences. It is important to do so to ensure that the right analysis is applied; remembering always that it is the prosecution who bears the onus of proof in this matter – by calling evidence, the Defence has not in any way assumed the burden of proving the accused’s innocence.
Record of Interview
It may be apparent that I have rejected some answers given by the accused in her Record of Interview, whilst I have accepted other answers that she gave.
I have already stated that I accept that the accused is a person of good character. As such, I generally accept that her answers in the Record of Interview were given honestly. I do not, however, accept the reliability of Ms Georgiou’s answers to questions 65, 152, 219 and 383.
These may be easily rejected as unreliable for they are contradicted by, and cannot stand against, the CCTV footage which shows Mr Varvodic in the west, southbound laneway for nine seconds before he was struck.
I have already stated that I do not consider that Ms Georgiou tried to mislead or deceive the police. Rather, she rationalised as to when it was that she first saw Mr Varvodic.
Further, I do not accept Ms Georgiou’s assessment of her own driving on that day as determinative of this charge. I have already discussed the elements of dangerous driving. The prosecution must prove beyond reasonable doubt that the accused’s driving created a real risk of death or serious injury to members of the public in the vicinity. This element is only satisfied by looking at all of the circumstances of the manner of her driving in that environment on that day, and not by the accused’s own assessment of her conduct.
I therefore accept Ms Georgiou’s answers in the Record of Interview to the effect that:
·First, there was nothing in the car operating to distract her;
·Second, there was nothing about her health or physical condition that day which operated as a distraction; and that
·Third, Ms Georgiou could not remember anything or any pedestrian which distracted her in the critical moment leading to the collision.
Mr Gurvich focused on the sincerity of Ms Georgiou’s answers to questions 349, 351 and 381, where she stated that she wished she could tell the police or remember if there were any other factors. It must be remembered, at questions 350, 351, Ms Georgiou stated she was not looking at buildings or shops more than when you do when you get on the road. She then said ‘I mean I did take note of my surroundings… I wish I could think back...’
No matter how analysed, the answers Ms Georgiou gave to these questions cannot be translated into meaning that there was something that actually distracted her in her driving in the critical moment leading to the collision; let alone that it was the BMW pedestrian who did so.
I therefore take account of the answers Ms Georgiou gave to the question of distraction or lack of distraction in the whole of the mix of the circumstances of the case. I am conscious not to give any matter more emphasis than it warrants.
Inferences
On the whole of the circumstances raised in the evidence, I find that Ms Georgiou drove south on Hawthorn Road and struck Mr Varvodic at the location just north of Sycamore Street. At the time he was struck, Mr Varvodic had been standing in the west, southbound laneway of Hawthorn Road for about nine seconds.
In view of the geography of the area described in the evidence, and taking account of the CCTV footage, which shows a gap in cars of beyond 9 seconds between the last car and the emergence of Ms Georgiou’s car travelling southbound on Hawthorn Road, there is no evidence that Ms Georgiou’s view was blocked or obscured in the nine second period:
·There is no evidence of any other southbound cars driving in front of her which may have turned left into Larch, Olive or Almond Street;
·There is no evidence of cars turning right into Hawthorn Road from the north lane or from Hawthorn Road in front of Ms Georgiou that may have distracted Ms Georgiou. It will be clear from my previous analysis of the expert evidence that I do not accept that the BMW pedestrian operated as, or was reasonably capable of operating as, a distraction to Ms Georgiou’s driving.
I need to say more about this in the context of inferences.
Specifically, I do not consider that the physical phenomenon of the BMW pedestrian is capable of raising a reasonable doubt about the accused’s capacity to see Mr Varvodic on the roadway prior to passing the BMW. In other words, I do not consider that the physical phenomenon raised in the evidence of Dr Rechnitzer was actually, or was reasonably capable of providing, a distraction preventing Ms Georgiou from seeing Mr Varvodic on the roadway from either before the position in Figure 34 of Exhibit 6, or from looking further on when she was at the location depicted in Figure 34.
Put another way, I do not consider that that the accused’s ability to see Mr Varvodic could or should have only commenced at or after the point where Ms Georgiou passed a BMW pedestrian.
In my view, the evidence makes plain that Ms Georgiou had the opportunity to see Mr Varvodic on the roadway for a considerable period of time and over a long distance. The evidence supports the conclusion that her view was clear and unimpeded along that roadway. There is no evidence that her view was blocked at any point by turning cars. In fact, in the absence of any evidence of cars turning, I remind myself that I must not speculate about such things.
As I have already observed, there is no evidence that at the distance and time 3.8 seconds from the collision, when Ms Georgiou was proximate to the BMW pedestrian that she slowed, swerved or was distracted by or saw the BMW pedestrian.
Rather, even for passing the BMW driver in the second (or less) that it took to do so, it is clear that Ms Georgiou still had not seen Mr Varvodic, and did not see him until the moment of impact or the split second before impact. I conclude this to be the case because she did not brake until either the moment of impact or that split second before impact.
It was submitted that the Crown does not specify when the inattention became dangerous. On the contrary, I conclude that the Crown did specify the point of dangerousness: that is, when Mr Varvodic stood, near stationary in the west, southbound laneway, from 12:56:00. I conclude that he was there to be seen, straight ahead of the accused, whose view on that day was of a “not diminutive” man in a red jumper; a view that was clear and unimpeded.
I conclude that it is apparent and unarguable that over the whole time that Mr Varvodic was in that laneway, Ms Georgiou never saw him. It is impossible to infer that she was looking at the roadway ahead of her.
I conclude that Ms Georgiou was inattentive for that whole period from 12:56:00; she was inattentive to the roadway ahead of her. As such, her driving for that whole period was dangerous to all members of the public in her vicinity, and as a result of the prolonged inattention, she caused the death of Michael Varvodic.
I conclude there is no other reasonable hypothesis available and that Ms Georgiou drove during a period of prolonged inattention on the roadway ahead of her.
I conclude that prolonged inattention, in a built-up area of mixed residential and commercial shops, at midday on Saturday constitutes dangerous driving.
I have considered whether it instead constitutes negligence, but when I take account of the geography of Hawthorn Road, the weather and visibility, and the clear and unimpeded view that I have found was available to Ms Georgiou, I am satisfied that this prolonged inattention cannot constitute negligence.
Conclusion
As such, I find each of the element charge of dangerous driving proved beyond reasonable doubt.
I order that a verdict of guilty to the charge on the indictment be entered on the records of the court.
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