Director of Public Prosecutions v Perry
[2023] VSC 270
•17 April 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0012
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| SHANE WILLIAM PERRY | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 April 2023 |
DATE OF RULING: | 17 April 2023 |
CASE MAY BE CITED AS: | DPP v Perry |
MEDIUM NEUTRAL CITATION: | [2023] VSC 270 |
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CRIMINAL LAW – Trial – No case submission – Accused charged with dangerous driving causing death and dangerous driving causing serious injury – Whether evidence taken at its highest could sustain a guilty verdict – Accused has case to answer – Crimes Act 1958 (Vic) s 319; Criminal Procedure Act 2009 (Vic) s 226.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Albert | Office of Public Prosecutions |
| For the Accused | Mr F Cameron | Borchard and Moore |
HER HONOUR:
Introduction
The accused has been charged with one charge of dangerous driving causing death, contrary to s 319(1) of the Crimes Act 1958 (Vic) (‘Crimes Act’), and one charge of dangerous driving causing serious injury, contrary to s 319(1A) of the Crimes Act.
The prosecution case closed after three days of evidence, with the last of the evidence having been heard on Friday 14 April 2023. Counsel for the accused submitted thereafter that Mr Perry has no case to answer.
The defence filed written submissions on 16 April 2023, and the Crown filed written submissions in the evening of the same day. I heard further oral submissions from the parties on 17 April 2023.
For the reasons set out in this ruling, I have decided that there is a case to answer. I communicated my decision to parties in Court in brief on 17 April 2023.
Background facts
The parties are largely in agreement about the facts of the matter, which can be summarised as follows:
(a) At 12.05pm on Friday 21 February 2020, the accused was driving his Holden Commodore Sedan (IDJ4YJ) (‘Commodore’) in a south-easterly direction on Wells Road, Aspendale Gardens. Wells Road had a speed limit of 80 km/h and was a dual carriageway, separated by a wide median strip with two lanes running in each direction.
(b) Shortly before the collision occurred, Jennifer Muller (55 years old) was driving a Mitsubishi Lancer (ZYZ389) (‘Lancer’) in a north-westerly direction along Wells Road. Also in the car was her neighbour, Eileen McDonald (95 years old), who was sitting in the front passenger seat, and Jennifer’s 24-year-old daughter Nicole Muller, who was sitting in the rear passenger seat behind Eileen.
(c) The accused entered the designated right turn lane, intending to turn right (i.e. west) from Wells Road onto Gilchrist Way. The right turn lane leads to a break in the median strip. In order to complete the righthand turn, vehicles must cross two lanes of traffic travelling north-west on Wells Road.
(d) The break in the median strip is also available for vehicles travelling north-west intending to perform a U-turn to travel south-east on Wells Road. Vehicles may perform a U-turn on Wells Road by entering the designated U-turn lane in the north-west bound carriageway, then moving into the break in the median strip.
(e) For vehicles turning right onto Gilchrist Way, upon entering the break in the median strip, they are faced with a ‘give way sign’ and a painted broken give way line. Accordingly, the accused was required to give way to oncoming vehicles travelling north-west along Wells Road.
(f) The accused proceeded to turn right and passed through the median strip, entering the north-west bound carriageway of Wells Road and crossing the path of the Lancer. The Lancer and the accused’s Commodore collided, with the front of the Lancer impacting the passenger side doors of the Commodore.
(g) According to an estimate provided by police collision reconstruction expert DLSC Hardiman, at the time of the collision the Lancer was travelling at an estimated speed of 67-79 km/h, and the Commodore was travelling at an estimated speed of 36-48 km/h.
(h) Shortly prior to the collision, Richard Johnson was traveling north-west on Wells Road in a SsangYong Musso (‘Musso’). Mr Johnson entered the far right U-turn lane of Wells Road, which led to the same gap in the median strip that the accused would use before seeking to turn right onto Gilchrist way. Mr Johnson had intended to conduct a U-turn from the U-turn lane, but did not do so due to the occurrence of the collision between the accused’s car and the Lancer. Mr Johnson’s evidence as to the position of his vehicle and the accused’s vehicle immediately prior to the collision is discussed further below.
(i) Following the collision, the accused told a number of people he could see a Ute/4WD (being the Musso) but that he did not see the Lancer until moments before the collision.
(j) As a result of the collision, Eileen McDonald sustained injuries,[1] and died from those injuries on 25 February 2020. Nicole Muller suffered serious injury.[2] Jennifer Muller was also injured in the crash, although her injuries were not serious.[3]
[1]Including multiple fractures and internal injuries.
[2]Including a broken right leg that required multiple surgeries and the insertion of a steel rod in two places; 4 fractured vertebrae that required her to wear a neck brace for 6 weeks; damage to her front teeth; and extensive bruising.
[3]Including a broken wrist, whiplash and extensive bruising.
Legal principles
No case
The making of a ‘no case’ submission is permitted pursuant to s 226(1)(a) of the Criminal Procedure Act 2009 (Vic) (‘CPA’), which relevantly provides as follows:
226 Accused entitled to respond after close of prosecution case
(1) After the close of the case for the prosecution, an accused is entitled―
(a)to make a submission that there is no case for the accused to answer;
…
(2)When ruling on a no-case submission by an accused, the trial judge may take into account the evidence already given of an expert witness called on behalf of any accused in the trial.
The test to determine whether the accused has a case to answer is well-established, as stated by the Full Court of the High Court of Australia in Doney v The Queen (‘Doney’):[4]
[I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.
[4](1990) 171 CLR 207, 214–5 (Deane, Dawson, Toohey, Gaudron and McHugh JJ) (‘Doney’).
In Doney, the High Court held that neither the power of a court of criminal appeal to set aside a verdict as unsafe and unsatisfactory, nor the inherent power of a court to stay or delay proceedings in order to prevent an abuse of process, provides any justification for interfering with the traditional division of functions as between judge and jury in a criminal trial.[5]
[5]Doney 215.
Regarding the unique perspective of the jury as fact finders, the High Court in Doney also observed:
[T]he purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.[6]
[6]Ibid 214.
A judge assesses a ‘no case’ submission by taking the prosecution evidence at its highest and by drawing all inferences that are the most favourable to the prosecution case which are reasonably open.[7]
[7]Attorney-General’s Reference (No 1 of 1983) [1982] 2 VR 410; Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323; R v Galbraith [1981] 2 All ER 1060.
In the recent case of DPP v Roberts (Ruling No 13) (‘Roberts’),[8] Kaye JA summarised the principles discussed above to be applied in considering a no-case submission as follows:
The principles that apply to the application made on behalf of the accused are well established. The test which I must apply is not whether the accused man should be convicted on the charge in question. Rather, the test is whether, on the evidence, the jury could lawfully convict the accused of the offence the subject of the charge. In particular, the test is not whether a verdict of guilty would be unreasonable, and thus liable to be set aside on appeal under section 276(1) of the Criminal Procedure Act 2009. Even if the prosecution case is weak it must be left to the jury, unless on the evidence the accused man could not be lawfully convicted.[9]
[8][2022] VSC 321.
[9]Ibid [22] (citations omitted).
Therefore, a judge is not called upon to determine whether she or he thinks the accused should be convicted. The test is whether, as a question of law, a jury could lawfully find the accused guilty based on all of the evidence heard.[10]
[10]Mary v O’Sullivan (1995) 92 CLR 654; Zanetti v Hill (1962) 108 CLR 433.
In addressing the issue of competing hypotheses in Roberts, Kaye JA endorsed the following extract from Attorney-General’s Reference (No. 1 of 1983),[11] in which the Full Court held that:
The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury's, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and as Menzies, J. explained in Plomp's Case, in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt.[12]
[11][1983] 2 VR 410.
[12]Ibid 415–6 (Young CJ, Anderson and Gobbo JJ) (emphasis in original).
Dangerous Driving
Section 319 of the Crimes Act provides for the offences of dangerous driving causing death and dangerous driving causing serious injury:
319 Dangerous driving causing death or serious injury
(1)A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).
(1A) A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes serious injury to another person is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).
For the purposes of these offences, ‘serious injury’ has the same meaning as that given by s 15 of the Crimes Act:[13]
"serious injury" means—
(a)an injury (including the cumulative effect of more than one injury) that—
(i) endangers life; or
(ii) is substantial and protracted;
[13]Crimes Act s 319(2).
The charges of dangerous driving causing death and dangerous driving causing serious injury have the following three elements, depending on whether death or serious injury is alleged:
(a) The accused was driving a motor vehicle; and
(b) The accused was driving dangerously; and
(c) The accused’s dangerous driving caused the victim’s death or serious injury.
In the recent decision of Georgiou v The Queen, the Court of Appeal reviewed the authorities that apply to the definition of the legal concept of driving at a speed or in a manner dangerous to the public, and summarised the applicable principles as follows:
Section 319(1) of the Crimes Act provides that a person is guilty of dangerous driving causing death if the person drives a motor vehicle at a speed or in manner that is dangerous to the public having regard to all the circumstances of the case and the dangerous driving causes the death of a person. The critical issue at trial was whether the prosecution had proved beyond reasonable doubt that the applicant drove in a manner that was dangerous, causing her car to collide with Mr Varvodic.
The test is objective and involves a serious breach of the proper conduct of a motor vehicle upon the road, that is ‘so serious as to be in reality and not speculatively, potentially dangerous to others’. The objective question is whether the manner of driving has the necessary quality of being dangerous to the public.
The concept of dangerousness in s 319 of the Crimes Act
… imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.
In one sense, driving, even when carefully undertaken and fully compliant with applicable rules, will always carry some risk to the driver, passengers and other road users. Driving is not free from hazard and the realisation of an ordinary risk of driving does not mean that the driving must have been dangerous. The mere fact that there has been a collision, and in the context of s 319(1) of the Crimes Act, the collision has resulted in the death of a person, does not mean that the driving was dangerous. For the driving to be dangerous, ‘there must be some feature [of the driving] which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention.’
The observation in Jiminez that the defining feature must be framed by reference to the risk that the driving entails, rather than whether it constitutes a want of care, was reinforced by the Court’s later observation in the same judgment that:
But it should be emphasized, and it must always be brought to the attention of the jury, that the condition of a driver must amount to something other than a lack of due care before it can support a finding of driving in a manner dangerous to the public.
If the trier of fact concludes that the driving was careless, and goes no further, then the critical question on which the offence turns will not have been determined, namely whether the prosecution has proved beyond reasonable doubt that the driving was dangerous. That is why Barwick CJ said in McBride that ‘it is not enough that the vehicle as driven by the [driver] has caused death or injury and the [driver] was negligent, even in some glaring respect.’ A lack of care does not always translate into an increased risk of harm over and above that which ordinarily inheres in driving a motor vehicle, including by person who exhibit a degree of carelessness.
Although dangerous driving may, and often will, be associated with a want of care, negligence is not an element of the offence. As was said in King, particular driving may be undertaken with care and skill but remain dangerous for the purpose of s 319. It follows that the fact that the driving was associated with a degree of carelessness on the part of the driver or that the collision could have been avoided by the exercise of greater care does not suffice to make out a charge of dangerous driving. For that reason, to ask whether the driving was careless may be a distraction from the true enquiry as to whether the driving was dangerous.
A further illustration of the distinction between negligence and dangerous driving can be seen in the judgment of McLure JA in McPherson. In that case, McLure JA described as a ‘fundamental misunderstanding of the law’, a prosecution submission that a driver who contravened the give way road rule resulting in a collision with a vehicle that had right of way, must be driving in a manner that was dangerous to the public. Her Honour was not suggesting that failing to give way could not constitute dangerous driving, self-evidently it may. Rather, it is necessary to ask how the driving affected the risk of harm to road users and members of the public when compared with the proper conduct of a motor vehicle.
Inattention by a driver to the task at hand, may be dangerous. That is because of the risk that inattention poses to the ability of the driver to safely control the vehicle, including by responding to an unexpected change in traffic conditions. Inattention may prevent the driver from steering a true course or braking to avoid a collision, and be dangerous for that reason. However, the level of attention required at any given point is not necessarily constant: it may depend on the terrain, environment and traffic conditions. Indeed, ‘[i]t may be that in some circumstances where particular attention is required to the road and to other road users, momentary inattention will result in a manner of driving that is dangerous within the meaning of the section.’ On the other hand, it could not be suggested that momentary inattention is relevantly dangerous when driving well within the speed limit, along a suburban road, in good conditions and in light traffic. Equally, momentary inattention is not uncommonly associated with driving and may not produce the type of risk necessary to establish dangerous driving.[14]
[14]Georgiou v The Queen [2022] VSCA 172 (‘Georgiou’) [13]-[21].
Parties’ submissions
Defence submissions
Mr Cameron submitted on behalf of the defence that the key issue for the jury to determine is whether the facts support the allegation that the accused’s driving was dangerous within the meaning of s 319 of the Crimes Act,[15] based on the evidence before them and with reference to the circumstances and manner of the driving.
[15]It was noted that the charge was particularised as manner dangerous, not speed dangerous, and it was not alleged that the accused was travelling at an excessive speed at the time of the collision. The jury needs to consider all the circumstances of the accused’s driving in determining whether the accused drove in a manner dangerous.
It was pointed out that there is no evidence of the accused being drug or alcohol affected, sleep deprived, using his mobile phone, driving erratically or being distracted while driving.
It was accepted that the driving conditions were good at the time of the collision, with fine weather, dry road conditions, and good visibility.
Mr Cameron summarised the evidence of Jennifer Muller, who was driving the Lancer, as follows:
(a) Jennifer accepted the possibility that she could have been travelling in the left lane all the way along Wells Road until the impact;
(b) She could not recall seeing a vehicle in the U-turn lane;
(c) She could not recall seeing a large blue ute;[16]
(d) Immediately before the collision, Jennifer saw a ‘glint’ of a car out of the corner of her eye, and heard Nicole Muller yell ‘Mum’ very loudly;
(e) Jennifer does not believe that the stationary car she observed[17] was the same car that turned in front of her. She believed it was a different car.
[16]Unlike Nicole Muller, who did notice a large blue ute travelling in the same direction as them in the next lane.
[17]In oral evidence, Jennifer stated that when her car was in line with the U-turn arrow closest to Edithvale Road, she observed another car stopped on the other side of the median strip, which had been travelling in the opposite direction (TS 112-3).
Mr Cameron summarised the evidence of Nicole Muller, the rear seat passenger in the Lancer, as follows:
(a) Nicole believes they had been travelling in the left lane;
(b) When she first saw the bigger car, being the Musso, the Lancer was level with the lower U-turn arrow on the map (i.e. closest to Edithvale Road);
(c) The reason she was able to see the Musso while it was in the U-turn lane was because it appeared to be slowing down as they were speeding up and ultimately passed the Musso;
(d) She did not see any other cars until the impact of the car crash;
(e) She first saw the accused’s car within the second before impact;
(f) The car that struck them was definitely smaller than the Musso.
In addition to Mr Cameron’s summary of Nicole Muller’s evidence, I would add that Nicole gave evidence that when she first saw the bigger car (that is, the Musso), it was in the U-turn lane.[18] She observed that the Musso was going to do a U-turn. She described the car as ‘bigger than ours and in front of our car and to the right’. When asked if she saw where the vehicle that impacted the Lancer came from, she said it ’kind of appeared in the median strip in front of the other car that was going to do a U-turn.’ When asked again, ‘Did you see where it came from?’ she said ‘Not exactly, no.’ She went on to say: ‘I think I had time to yell out, “watch out” or “look out”, something like that. Just to get mum’s attention’.
[18]TS 133
The evidence of Richard Johnson, the driver of the Musso who was present at the time of the collision, was summarised as follows:
(a) The Musso was 1.85 metres high, 1.95 metres wide, and 5.4 metres in length;
(b) The two cars that collided were sedans, and they were smaller than the Musso.
(c) When Johnson first saw the Commodore, his Musso was between the two painted U-turn arrows, if not closer to the top arrow (i.e. the arrow closest to the gap in the median strip);
(d) The collision happened fairly quickly, Perry was close enough to Johnson for Johnson to see what Perry was wearing, and Johnson was at the end of the traffic island waiting to do a U-turn;
(e) When asked whether he had come to a stop, Johnson said he was ‘pretty close to a stop’ and was still in the turning lane;
(f) Johnson saw the Commodore front-on before he saw it turning;
(g) The Commodore slowed, but Johnson did not observe the Commodore to come to a complete stop at any point;
(h) After the collision, Perry said to Johnson, ‘It's my fault, I didn’t see them’;
(i) After the collision, Johnson also observed that Perry appeared to be rattled and in shock.
In addition to Mr Cameron’s summary of Mr Johnson’s evidence, it is also useful to refer to the following passage of evidence-in-chief:
Mr Albert: So did you actually see the vehicle in the designated right-turn U-turn lane or did you see him as he entered the break?
Johnson:Um, I know he was over the right side because he was making the turn. Where exactly he was, would have been between - but there's - he was making the turn so hence it's not like he was going straight ahead. It happened fairly quickly, so um, where exactly he was at that point, he was close enough for me to be able to see what he was wearing, put it that way, and I was at the end of that traffic island waiting to do a U-turn.
Mr Albert: Had you come to a stop?
Johnson:Ah, I - I think I was pretty close to a stop, but … I wasn't half-way around the turn if that's what you mean. I was in the right lane still.
Mr Albert:Had you started the turn?
Johnson: I don't believe so.
Mr Albert:When the vehicle, the other vehicle, the Commodore, passed in front of you, did you first see it front-on, as from the bonnet, or did you see it side-on?
Johnson:I saw front-on.
Mr Albert: And did you see it turning?
Johnson:It turned in front of me, yes.
Mr Albert: Did you observe whether it stopped at any time?
Johnson:No.
Her Honour: Can I just enquire, you've just been asked did you observe whether it stopped at any time. Do you mean 'no' you didn't observe whether it stopped at any time, or 'no, you didn't see it stopping, it didn't stop at any time?' What are you saying?
Johnson:I'm saying it didn't stop.
…
Mr Albert: As it turned in front of you, did you follow its path?
Johnson:Well, what do you mean?
Mr Albert: Keep looking at it?
Johnson:Ah, the vehicle came around that corner, um, the impact was pretty much immediately, so I can't really comment on was I watching it because it happened so fast. The vehicle didn't stop. He came around that corner and - and ploughed into the other vehicle, so um, I was also where I was situated, my head was around, I'm turning in a U-turn, but the - but I noticed him coming towards me, turning and then obviously thought he could beat the other car through, or whatever happened … [The witness was interrupted by the Court and told not to offer speculation on what the accused might have thought and to restrict himself to what he directly observed.][19]
[19]TS 142-3.
Mr Cameron referred to comments made to others by the accused following the collision, including that which Johnson recounted. The accused said in the presence of bystander Wendy Cowan:[20] ‘I’m sorry. I didn’t see them’.
[20]Wendy Cowan did not see the collision but came from a nearby dental clinic to offer assistance.
Mr Cameron also noted that another bystander Stuart Johns[21] gave evidence that the accused told him that:
[21]Stuart Johns heard but did not see the collision but went straight over to the scene to assist those involved and spoke to the accused very soon after the collision.)
(a) he was turning right;
(b) there was a ute in the way, he couldn’t see; and
(c) he went anyway.
Mr Cameron also referred to the evidence of police officer S/C Campbell, who conducted a roadside interview with the accused that was captured by his body-worn camera (‘BWC’).[22] Mr Cameron summarised the responses given by the accused in the BWC interview as follows:
[22]The audio of the BWC footage was played to the jury.
(a) The accused said: ‘I had a look, I could not see anyone, the road was- there was no traffic at all that I could see’;
(b) When asked by S/C Campbell where was he looking when he decided to proceed through the intersection, the accused said:
(i) ‘I was looking to see what was coming’;
(ii) ‘I could see cars starting to come much further down, but … the road here looked all clear’;
(iii) ‘Obviously what I could see, either side of the four-wheel drive’;
(iv) ‘I could see cars starting to come down, maybe a good, I don't know, forty metres away’;
(v) ‘The only one I could see was the four wheel drive … it was slowing down to turn there’;
(vi) ‘I thought I could see everything’.
(c) S/C Campbell said ‘So you thought it was safe to pull out, you've done so, what happened then?’, to which the accused replied: ‘The next thing I seen the car on top of me, two or three metres away, and nothing I could do, I couldn't speed up or anything’.
Defence argument as to why there is no case to answer
Mr Cameron submitted that, taking the evidence against the accused at its highest, it would not be open to the jury to conclude that the accused’s conduct amounted to dangerous driving and that the Court should direct the jury to enter verdicts of not guilty in relation to both charges on the indictment.
Mr Cameron noted that the Crown case is based on the accused’s failure to keep a proper lookout and failure to give way to the Lancer, and noted the Crown’s argument that momentary inattention can be a serious breach in the management and control of a motor vehicle if particular attention was required at the time.[23]
[23]The Crown cited King v The Queen [2012] HCA 24 [46] for this proposition. In oral submissions, the defence made reference to the decision of DPP v Orchard (Ruling No 1) [2022] VSC 601, as a case where Lasry J upheld a no case submission in relation to a charge of dangerous driving causing death, in circumstances where there may have been momentary inattention on the part of the accused. The defence did not seek to draw any specific comparison between the facts of Orchard and this case.
However, Mr Cameron submitted that in the present case, there is an absence of evidence that the accused would have been able to see the Lancer until just prior to the collision due to the position of Johnson’s Musso.
It was submitted that the only basis upon which the jury could conclude that the accused’s driving was dangerous was because either:
(a) he saw the Lancer and decided to take the turn anyway;
(b) he was so distracted prior to and during the course of executing the right hand turn that he did not look to see if there was any oncoming traffic;
(c) he simply did not bother to look at all to see if there was oncoming traffic; or
(d) he knew or suspected that there was a car behind the Musso but chose to proceed with the right hand turn anyway.
It was further submitted that none of the above conclusions are open to the jury, drawing all reasonable inferences from the evidence adduced by the Crown.
Moreover, Mr Cameron submitted that the vice in the accused’s driving was in not considering whether his view might be blocked by the slower moving Musso before proceeding to take the turn. It was submitted that, at most, this conduct might amount to a lack of due care consistent with careless driving, but that the evidence was incapable of founding a conviction for dangerous driving.
In oral submissions, Mr Cameron identified the central issue to be whether there is any evidence from which the jury could infer that the accused had an opportunity to see the Lancer before the collision. The defence position is that, on the evidence, the jury could not exclude a scenario in which the accused had not seen the Lancer and simply had not turned his mind, in that brief period of time, to the possibility that there was a car behind the Musso. It was therefore submitted that this is consistent with a lack of due care at most, but does not rise to the level of dangerous driving.
Mr Cameron’s written submissions addressed the principles to be applied in assessing whether the driving can be characterised as dangerous pursuant to ss 319(1) and 319(1A). I have adopted and incorporated those principles in my discussion of the applicable law later in this ruling.
Crown submissions
The Crown provided brief written submissions in response to the defence application,[24] which were expanded upon orally by Mr Albert.
[24]Outline of prosecution submissions dated 16 April 2023.
With respect to the defence’s main contention that the jury could not find that the accused’s alleged breach in the proper management and control of his vehicle was a ‘serious’ breach, the Crown submitted as follows:
(a) Whether a breach of the proper management or control of a vehicle is a “serious” breach is a—
(vii) determination of fact by the jury; and
(viii) the question of the degree of blameworthiness of the impugned driving is a question that is particularly appropriate for a jury to determine as it requires the assessment of conduct by standards of the community.
In making the above submission, the Crown referred to the main test for establishing the requirements for a no case submission as set out in Doney,[25] which I have referred to earlier in this ruling. In oral submissions, Mr Albert identified the key issue as whether the jury could find that the accused’s driving was dangerous.
[25]Doney [17].
Matters capable of supporting a finding of ‘serious’ breach
The Crown referred to the following matters that would allow the jury to find that the accused’s driving did involve a ‘serious’ breach:
Failure to give way
First, the Crown argues that the accused’s driving was a gross breach of fundamental driver safety responsibility as required by the Road Safety Road Rules 2017 (‘RoadRules’). The Road Rules required the accused to “give way”. That is an obligation that all drivers are expected to know, understand, and abide by. The Road Rules also required the accused to slow down and/or stop to avoid the risk of a collision with vehicles that had the right of way. There is no exception or qualification to the obligation to give way if the view of the driver of a vehicle is impeded. The Crown submitted that this is so because drivers who have the right of way are entitled to expect that drivers of other vehicles will ensure they give way whether their view is impeded or not. It was therefore submitted that, if the accused’s view was impeded, he was required to take all necessary action, including keeping a proper lookout while taking account of the impediment, to ensure he gave way and to avoid the risk of collision. It was submitted that the accused did not keep a proper lookout before the collision, as demonstrated by the evidence that he did not stop[26] or slow down sufficiently before turning and crossing lanes.
Impeded view when giving way
[26]TS 142, line 21 (Johnson).
Second, the Crown submitted that the fact the Musso was a large vehicle does not mitigate the accused’s blameworthiness, and that given the extent to which his view was obstructed, the accused should have exercised an even greater level of caution.
In written submissions, the Crown argued that the larger the vehicle or object impeding the view of a driver giving way, the more cautious that driver must be, as their view of vehicles that have right of way stands to be impeded to a greater extent. Accordingly, the fact that Johnson’s Musso was an especially large vehicle should not mitigate the accused’s blameworthiness for failing to give way. the Crown submits that, in those circumstances, the accused should have exercised particular attention to keep a proper lookout for vehicles to which he was obliged to give way because his view was impeded.
The accused ‘went anyway’
It was further submitted that the collision occurred as a result of a deliberate decision by the accused to cross the north-west bound lanes of Wells Road for vehicles that had right of way over him, despite his view being impeded.
In support of this argument, the Crown referred to evidence of a verbal exchange between the accused and a bystander Stuart Johns that took place shortly after the collision:
Johns: Didn’t you see the car?
Accused: There was a ute in the way. I couldn’t see.
Johns: So you went anyway?
Accused: Yeah.
It was submitted that the accused’s decision to ‘go anyway’, together with the fact that the accused was moving at speed at the point of impact (approximately 36–48 km/h),[27] significantly elevated the risk of a serious collision, as the accused would have been unable to stop or slow down to avoid colliding with the Lancer.
High-risk intersection
[27]Exhibit P1, Tab 4 (Statement of D/L/S/C Hardiman), p 13 (‘Hardiman statement’).
Wells Road is a main road with two lanes of travel in each direction. The relevant speed limit is 80 km/h. It was submitted by the Crown that a collision resulting from a failure to give way at the intersection with Gilchrist Way carries a high risk for serious injury or death. This is because vehicles travelling along Wells Road would be travelling at around the speed limit of 80 km/h, as in fact the Lancer was.[28] The risk of serious injury or death to occupants of a vehicle travelling at that speed on Wells Road is evidenced by the serious injury and death that materialised from the present collision. Accordingly, the Crown argued that the accused failed to exercise the requisite level of attention for this intersection by failing to give way.
Failure to keep proper lookout
[28]Hardiman statement, p 13.
Finally, the Crown submitted that the accused failed to exercise fundamental driving safety and basic common sense by not keeping a proper lookout. The Crown suggested that the accused could have avoided a collision by taking any number of reasonable actions, including (inter alia):
(a) Waiting for the Musso to move so that it was no longer impeding his view of oncoming traffic before commencing his turn onto Gilchrist Way;
(b) Moving his vehicle forward and stopping at the give way line[29] until his view was no longer impeded by the Musso, before proceeding to cross the north-west bound carriageway of Wells Road;
(c) Slowly inching his vehicle forward into the right lane of the north-west bound carriageway of Wells Road, before attempting to fully execute his turn onto Gilchrist Way.
[29]This was an extension of the designated U-turn lane visible in Exhibit P3.
Further to the above suggestions, the Crown noted the finding made by DLSC Hardiman that the gouge and tyre marks indicated that the point of collision was in the left lane of the north-west bound carriageway of Wells Road.[30] Accordingly, the Crown argued that the collision could have been avoided, had the accused been travelling at a slower speed, or even inched his vehicle into the right lane of the north-west bound carriageway before proceeding to cross the left lane.
[30]Hardiman statement, p 10.
Referring to King v R,[31] Mr Albert submitted that in some cases, the circumstances will require a driver to pay particular attention. In such circumstances, a momentary lapse of attention may amount to dangerous driving. In the Crown’s submission, the circumstances in this case which required the accused to pay particular attention were:
[31](2012) CLR 588.
(a) The requirement for the accused to give way to oncoming traffic;
(b) The fact that the speed limit of Wells Road is 80 km/h, meaning it was a high risk area; and
(c) The fact that the accused’s view at the intersection was blocked by a large vehicle.
Evidence at trial
I accept that Mr Cameron has appropriately summarised the evidence of Jennifer and Nicole Muller, Richard Johnson, and S/C Campbell, as well as the effect of the statements that were read in from Wendy Cowan and Stuart Johns.
In addition to the oral evidence of the witnesses already referred to above, the jury also received the following evidence;
(a) A jury view of the area where the collision occurred.
(b) A jury book containing a statement of agreed facts, a map of the area where the collision occurred, photographs of the vehicles in situ following the collision, and the expert statement of DLSC Hardiman.
(c) A video walkthrough of viewpoints from the direction of the accused’s vehicle and that of the Lancer, which was prepared by the informant D/Sgt Frith shortly after the collision.
(d) An aerial photograph of the collision scene.
(e) Two photographs of Johnson’s Musso, which also depict the police sedan parked nearby the Musso.
(f) Audio of the roadside interview conducted by S/C Campbell with the accused after he had been cautioned, as captured on Campbell’s BWC.
(g) Evidence given by the informant D/Sgt Frith.
The relevant sections of the Road Rules are set out in the agreed facts,[32] and relevantly provide as follows:
[32]Exhibit P1, Jury Book, Tab 1: Agreement as to facts (signed by parties).
69 Giving way at a give way sign or give way line at an intersection...
(1) A driver at an intersection … with a give way sign or give way line must give way in accordance with this rule.
(2)… the driver must give way to a vehicle in, entering or approaching the intersection …
Dictionary
give way, for a driver … means—
(a) if the driver … is stopped—remain stationary until it is safe to proceed; or
(b) in any other case—slow down and, if necessary, stop to avoid a collision;
give way line means a broken line that is marked across all or part of a road …
Evidence of Detective Leading Senior Constable Hardiman
The statement of collision reconstruction expert[33] DLSC Hardiman (‘Hardiman’) was tendered as evidence of agreed facts between the parties and read out in Court.[34] In his report, Hardiman describes the site of the collision and states:
All traffic turning right, entering Gilchrist Way from the south-east bound right-hand turn lane of Wells Road, was required to give way to vehicles travelling in a north-westly [sic] direction on Wells Road.
[33]With the Collision Reconstruction & Mechanical Investigation Unit of the Victoria Police Forensic Services Department. Hardiman attended the collision scene at 1.55pm on Friday 21 February 2020 and conducted a scene walk through. He Detective Leading Senior Constable Hardiman (Hardiman) has produced a report based on information that was provided to him, his observations and a collision reconstruction (which was used to calculate the speed ranges of Commodore and Lancer).
[34]Exhibit P1, Jury Book, Tab 4.
Hardiman provided a description of the vehicles involved in the collision, being the Commodore and the Lancer, including the damage to the vehicles and their resting positions.[35]
[35]Hardiman statement, pp 4-9.
Hardiman was able to determine the approximate speed of both vehicles[36] and summarised his key findings as such:
The Commodore has entered the intersection at which time the front of the Lancer has collided with the passenger side of the Commodore. At impact, the Mitsubishi Lancer was travelling between 67 km/h and 79 km/h and the Commodore was travelling between 36 km/h and 48 km/h. There was no evidence of emergency braking from either vehicle.[37]
[36]Using the method of collision reconstruction known as ‘360° momentum’: Hardiman statement, p 12.
[37]Hardiman statement, p 14.
By analysing the gouge and tyre marks present at the collision site, Hardiman was able to determine the approximate area of impact. He described a series of gouge and tyre marks located within the left, north-west bound lane of Wells Road, and made the following observation:
The gouge mark started at approximately 4mm deep and became a scrape moving towards the north west. The gouge/scrape was approximately 1.38 metres long and changed direction whilst moving towards the rest position of the Lancer … A tyre mark, which was approximately 1.33 metres in length was present closer to the centre line and commenced very close to the start of the gouge mark. The tyre mark ran essentially parallel to the gouge, again towards the rest position of both vehicles.[38]
[38]Hardiman statement, p 10.
He also noted that there were no pre-impact tyre marks that would indicate emergency breaking. The evidence from the tyre marks indicated that both vehicles rotated in an anti-clockwise direction post-impact.
Hardiman was unable to calculate the time taken by the Commodore to travel between any two points at the scene (e.g. from the U-turn line to the area of impact) due to there being no physical evidence or relevant data that would enable such calculations to be made. For the same reason, he could not determine whether the Commodore was accelerating prior to the impact.
Hardiman acknowledged that he had been advised of the presence of a large vehicle in the U-turn lane at the time of the collision, which is to say that he had this information when he wrote his report and reached his conclusion. In any case, he stated that the presence of another vehicle (in addition to his knowledge about the presence of the large vehicle) would not have changed his opinion about the cause of the collision. Nevertheless, he was unable to determine why the driver of the Commodore failed to give way to the Lancer.[39]
[39]Hardiman statement, p 14.
Consideration
I note that in the present case there is no dispute that the Crown could prove element one of each of the charges (that the accused was driving). It is also not in dispute that Eileen MacDonald died as a result of the collision and that Nicole Muller received a serious injury as a result of the collision. The issue in dispute is whether the accused drove in a manner that was dangerous to the public, having regard to all the circumstances of the case. Proof that his driving was dangerous in element two is a prerequisite to finding, pursuant to element three, that the accused’s dangerous driving led to the collision and consequent death or serious injury in respect of the alleged victims.
The following propositions are applicable to the jury’s assessment of whether the accused was driving in a manner that was dangerous to the public, having regard to all the circumstances of the case, pursuant to s 319 (1) and s 319(1A):
(a) Dangerous driving is driving that is dangerous to the public; that is, the driving must have involved a serious breach of the proper management or control of a vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured.
(b) The driving must have involved such a serious breach of the proper management or control of the vehicle as to be, in reality and not speculatively, potentially dangerous to others. This test will only be satisfied if the speed or manner of driving posed a real, and not just speculative, danger to other members of the public who may have been in the vicinity.
(c) In determining whether this was the case, the finders of fact are required to bear in mind that people do not always drive as they should. Even the best drivers occasionally lose attention for a moment, or make minor mistakes.
(d) For dangerous driving to be established, the accused must have driven in a manner that significantly increased the risk of death or serious injury to others, over and above the ordinary risks of the road. This could be because the accused’s driving increased the likelihood of a collision, or because it made it more likely that any injuries suffered in a collision would be serious.
(e) In assessing risk, the finders of fact must consider the likelihood of a collision, and the seriousness of any likely injuries if a collision does occur.[40]
[40]See for example, Pope v Hall (1982) 30 SASR 78, 79-80.
(f) The accused’s manner of driving includes all matters concerned with the management and control of the vehicle. As part of this, the finders of fact should consider matters such as the accused’s technical driving skill, and the condition of his vehicle.
(g) In determining whether the accused’s driving was dangerous, it is necessary to consider all of the circumstances in which the accused was driving (e.g. weather, road conditions and traffic).
(h) It is not necessary to prove that the accused intended to drive dangerously, or was aware that his conduct was dangerous. Driving may be dangerous even if the accused was driving as his ‘(incompetent) best’.[41] The accused’s state of mind is only relevant in considering the circumstances of the offence.[42]
[41]R v Evans [1963] 1 QB 412, 418.
[42]R v Dickinson [2007] VSCA 111. As an aside, I note that in oral submissions the Crown asserted that the dangerous driving was a charge of absolute liability. Ultimately, however, this was not pressed and the Crown placed primary reliance on the submissions set out in paragraphs [40]-[50] of this ruling.
(i) This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality.
(j) The finders of fact must not assume that simply because there was a collision the accused’s driving must have been dangerous; sometimes accidents happen for which no one will be criminally responsible. The law does not require drivers to act with perfect hindsight, or assume that for every accident there must be a remedy.
(k) It is not enough that the vehicle as driven has caused death or serious injury and that the accused was negligent, even in some glaring respect. For the driving to be dangerous, the accused ‘must have done something more than fail to exercise due care’.[43]
[43]DPP v Orchard (Ruling No 1) [2022] VSC 601 [36].
I now turn to the question of whether the evidence before the jury is capable of establishing a verdict of guilty in respect of the charges on the indictment.
In approaching this question, I am required to take the Crown’s evidence at its highest.
Regarding the circumstances of the driving in this case, it should be noted from the outset that there is no evidence to suggest that the accused lacked the skills of a fully licensed driver. Mechanical inspection of the accused’s car revealed no defects that were considered to have contributed to the collision. Lastly, it is agreed that the road conditions were dry, the weather was fine, and the visibility was good.
There is no dispute in this case that the accused failed to give way to the Lancer. As to whether he failed to keep a proper lookout, that seems to be in dispute inasmuch as the defence case is that the accused was keeping a lookout but did not appreciate that the Musso was hiding his view of the Lancer. The Crown contend that the presence of the Musso heightened the degree to which the accused was required to keep a proper lookout in order to safely give way.
The evidence relied upon by the Crown to prove the element of dangerousness in respect of each charge is as follows:
(a) The accused was driving south-east along Wells Road, which is an 80 km/h zone in both directions. He intended to turn right onto Gilchrist Way, and in preparing for that manoeuvre he had entered the designated right turn lane, which feeds into a break in the median strip.
(b) Before executing his right turn, the accused was required to give way to traffic travelling along the north-west bound carriageway of Wells Road.
(c) Immediately prior to the collision, the Musso driven by Johnson was approaching the gap in the median strip from the U-turn lane of the north-west bound carriageway. Johnson believed his vehicle was already in the break in the median strip and had almost come to a stop just before the accused proceeded to cross the north-west bound carriageway of Wells Road.
(d) On Johnson’s evidence, the accused had not come to a complete stop before proceeding to cross the north-west bound carriageway.[44] This was despite the accused being positioned such that he was facing opposite Johnson (and in a position that allowed Johnson to make the observation that the accused was wearing high-vis clothing).
(e) The path taken by the larger and higher Musso from U-turn lane would have positioned it more or less in front of the accused’s vehicle in circumstances where the accused’s view of oncoming traffic was likely to be partly obscured by the Musso.
(f) The accused proceeded with his right-hand turn despite his sightlines being impeded by the Musso.
[44]The lanes for vehicles travelling in a North- westerly direction in Wells Road.
In effect, the Crown case is that a jury would be entitled to conclude that the accused failed to exercise basic driver safety by proceeding to make a right turn across two lanes of potentially fast-moving traffic in circumstances where his sightlines for oncoming traffic were impeded by a larger, higher vehicle.
The Crown argues that such conduct was dangerous to the public (particularly to the occupants of any north-west bound vehicles) and involved such a serious breach of the proper management or control of a vehicle so as to create a real risk that members of the public in the vicinity would be killed or seriously injured. The manoeuvre undertaken by the accused significantly increased the risk of death or serious injury to others over and above the ordinary risks of the road. It increased the likelihood of a collision, and made it more likely that any injuries suffered in a collision would be serious.
The Crown places reliance on the accused’s admissions after the collision that his view of the Lancer had been blocked by the Musso, but he decided to make the turn anyway. This is relied upon as the crux of the Crown case on dangerousness; adverting to a visual obstruction but deciding to proceed anyway.
For this reason, the Crown does not seek to prove that the accused saw the Lancer and ignored it, or was engaged in some distracting activity. The Crown accepts that the presence of the Musso may have created a blind spot with respect to north-west bound traffic. Moreover, it is precisely for this reason that the Crown say the accused was driving dangerously, and point to the accused’s failure to pause before proceeding with his right-turn, despite the visual obstruction presented by the Musso.
While inattention is not a required feature of dangerous driving, momentary inattention to the task at hand when undertaking a risky manoeuvre can amount to dangerous driving.
As mentioned, the Crown case is that for the accused to have commenced to turn through two lanes of traffic where the controlling speed limit was 80 kph, while being aware of the presence of a large vehicle obscuring his line of sight, involved a serious breach of the proper management or control of a vehicle and was dangerous driving as it created a real risk of death or serious injury to members of the public.
In particular, it would be open to the jury to conclude that—
(a) prior to commencing his right-hand turn, the accused was effectively facing the Musso head-on or nearly head-on;
(b) the Musso was a larger, higher vehicle relative to the accused’s vehicle;
(c) the position and location of the Musso was such that it potentially obscured the accused’s sightlines for oncoming traffic in the north-west bound carriageway of Wells Road;
(d) The presence of the Musso heightened the importance of the accused keeping a proper lookout (and stopping or pausing before proceeding if his sightlines were obscured) in order to safely give way;
(e) the accused’s admission that he adverted to the presence of the Musso before deciding to ‘go anyway’ supports the Crown’s contention that the accused was prepared to undertake his right-hand turn despite the risk that his view of oncoming traffic was obscured by the Musso;
(f) the accused’s decision to ‘go anyway’ occurred in circumstances where there was a risk of collision with oncoming vehicles that he could not see, travelling at around 80 km/h, with right of way; and
(g) the materialisation of that risk gave rise to a real, and not just speculative, danger that members of the public in the vicinity would be killed or seriously injured.
Taking the Crown case at its highest, and drawing all inferences that are the most favourable to the Crown,[45] I consider that in the circumstances of this case the jury could lawfully convict the accused of the charges on the indictment, in other words the jury could find each of the elements of both charges proven. I consider that the jury could find that the accused’s driving involved such a serious breach of the proper management or control of the vehicle as to be, in reality and not speculatively, potentially dangerous to others.
[45]DPP v Orchard [2022] VSC 601 [10].
Bearing in mind the role of the jury as the finders of fact, the question of whether the accused’s driving was, in fact, dangerous is a matter that should be left to the jury to decide, armed with appropriate judicial directions about the law.
Accordingly, I am satisfied that there is a case to answer on the two charges on the indictment.
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