Director of Public Prosecutions v Perry (Ruling)

[2024] VCC 824

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01909

THE DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v
MICHAEL PERRY	Defendant

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2024
DATE OF RULING:	2 May 2024
CASE MAY BE CITED AS:	DPP v Perry (Ruling)
MEDIUM NEUTRAL CITATION:	[2024] VCC 824

RULING
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Subject:CRIMINAL LAW - RULING

Catchwords:              Dangerous driving causing death – no case submission – whether evidence taken at its highest could sustain a guilty verdict - reasonable inferences – circumstantial evidence –

Legislation Cited:      Criminal Procedure Act 2009 (Vic); Crimes Act 1958 (Vic); Road Safety Rules 2017 (Vic)

Cases Cited:Kennett v the King [2022] VSCA 2022; Case Stated by DPP (No 2) of 1993 (1993) 70 A Crim R 323; DPP v Iliopoulos (Ruling No 3) [2016] VSC 132; DPP v Orchard (Ruling No 1) [2022] VSC 601; Georgiou v The Queen [2022] 301 A Crim R 229; King v The Queen (2012) 245 CLR 588; McBride v The Queen (1966) 115 CLR 44; R v Smith [2006] VSCA 92; R v De Montero (2009) 25 VR 694

Ruling:  No case submission upheld, jury directed to enter verdict of acquittal

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr A. Lewis Ms S. Stafford	Tony Hargreaves & Partners

HER HONOUR:

1Michael Perry (“the accused”) is charged with dangerous driving causing death.

2The prosecution case against the accused is that at 10.58am on 18 August 2021 he collided with a pedestrian, Helen Boukouvalas, at the intersection of Booran Road and North Road in Caulfield South. The collision caused the death of Helen Boukouvalas. The collision was captured on CCTV footage.

3Evidence was given during the trial by two eyewitnesses, Leo Glenane and Benjamin Spruth. Vorinder Turen, a  civilian driver of a motor vehicle who was in the left hand lane of Booran Road, behind the accused prior to the accused making his left turn, also gave evidence. The relevant content of statements from Marie Boukouvalas and James Gakovic were read into evidence by the prosecutor Mr Moore. Police witnesses Trevor Bergman, Jeremy Gillies, Philip Frith and Stephen Mottram gave evidence. The prosecution called one expert witness Dr Janelle Hardiman who is a collision reconstructionist.

4The following exhibits were tendered: CCTV, photographs taken by Frith, photographs selected and used by Dr Hardiman including a nearmap aerial photograph of the intersection, BWC footage from Bergman and Gillies, and a diagram drawn by Spruth.

5It is agreed between the parties that the accused did not see the pedestrian.

6There is no evidence that the accused was affected by drugs or alcohol, sleep deprivation, tiredness, poor eyesight, or inattention through the use of a mobile phone. There is also no evidence of any poor driving behaviour by the accused prior to the moment of the collision. Further, speed was not a contributing factor in the collision.

No case submission

7At the close of the prosecution case Mr Lewis and Ms Stafford, counsel for the accused made an application, that on the charge of dangerous driving causing death, there is no case for the accused man  to answer.

8In order to prove the offence of dangerous driving causing death the prosecution must prove the following three elements:[1]

1)    That the accused was driving a motor vehicle;

2)    That the accused drove dangerously; and

3)    That the dangerous driving cause the death of another person.

[1] Crimes Act 1958 (Vic) s 319

9Mr Lewis submitted there was no case to answer in relation to the second and third elements. That is, in relation to whether the accused drove dangerously and whether the dangerous driving caused the death of another person.

Legal principles no case submission

10The making of a no case submission is permitted pursuant to s 226(1)(a) of the Criminal Procedure Act 2009.

11The test to be applied for a no case submission is as follows

if there is evidence, even tenuous or inherently weak or vague which can be taken into account by the jury in its deliberations, and that evidence is capable of supporting a verdict of guilt, the matter must be left to the jury for its decision. Or to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that taken at its highest, it will not sustain a verdict of guilty.[2]

[2]Doney v The Queen (1990) 171 CLR 207

12A judge assesses a ‘no case’ submission by taking the prosecution evidence at its highest and drawing all inferences that are most favourable to the prosecution case that are reasonably open.[3] Those inferences must be open on the evidence and exclude a reasonable hypothesis consistent with innocence. Where the case depends on circumstantial evidence, the question is not whether the trial judge considers that there remains open a reasonable hypothesis consistent with innocence. Rather, the test is whether the jury could rationally conclude that any inference consistent with innocence is not reasonably open on the evidence.[4]

[3]Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410

[4]Illiopoulos [2016] VSC 132

13The test for a ‘no case’ submission is different to the test on appeal as to whether a verdict is ‘unsafe or unsatisfactory’.

Prosecution case

14The prosecution  rely upon the evidence of Dr Hardiman, that, prior to the collision, the Volvo truck driven by the accused had been stopped at a red light on Booran Road, Ormond facing south and was waiting to turn left into North Road to continue east. At the same time, a female pedestrian was stopped on the north east corner of the intersection waiting to walk south across North Road, on the east side of the intersection. When the lights changed to green for the truck and the pedestrian they both moved off. When the pedestrian was about half way across the intersection she was struck by the front passenger corner of the truck cabin. The truck failed to give way to the female on the crossing. After impact, the truck continued towards the east before coming to a controlled stop approximately 98 metres east of the area of impact. The female pedestrian was thrown forward at impact before subsequently being run over and dragged along the road to rest with the truck. At impact, the truck was travelling between 17kmh and 25 kmh.

15Dr Hardiman also gave evidence of the results of her examination of the collision scene, the examination she made of the truck and trailer driven by the accused and scuff marks on the road way and other physical evidence caused as a result of the collision.

16In relation to driver visibility Dr Hardiman gave evidence that there was no obvious obstruction to the forward view of the driver. However from the driver’s seat there was a blind spot created by the A pillar and the wing mirror. The width of these two items was 0.5 of a metre or 50 centimetres but the blind spot becomes a funnel and it gets wider and wider so that as you move away from the truck it gets bigger.

17Dr Hardiman was able to determine that at the point of impact the driver was not able to see the pedestrian. This was done by having the truck parked in the approximate position of at the point of impact and having a police member stand in the position of the pedestrian. Dr Hardiman otherwise gave evidence that it was not possible to determine whether or not the driver of the truck could see the pedestrian for the entire time that the pedestrian and the truck approached each other as there were too many variables or unknowns such that, an accurate reconstruction could not be undertaken.

18Three propositions were put to Dr Hardiman by Mr Moore. She agreed firstly, that the deceased would have been visible to the accused from his position in the truck as she walked past the truck on her way to the traffic lights; secondly, from the time when the deceased was standing at the intersection waiting to cross to the point of impact she was not able to say whether or not the deceased was visible to the accused; and finally, the deceased was not visible to the accused at the point of impact.

19The prosecution particularised the dangerous driving of the accused as follows:

(a)   He failed to keep a proper lookout namely;

(i)He failed to make sufficient checks as to whether pedestrians were crossing from his side of the road prior to turning his vehicle. He simply performed a sweeping left hand turn straight around the corner with no braking and failed to give way to a pedestrian.

His vehicle was stationary and straddling the left and right lanes created distance between the vehicle and Mrs Boukouvalas.

He had ample time to make the checks. The evidence will be that he could have seen her if he had looked, while she was walking past his truck on the approach to the intersection.

(ii)He admitted at the scene that he was focused on the two boys on bicycles and the motorcyclist and that he wanted to get around the corner to avoid them, thus indicating he was not focused on pedestrians crossing from his side of the road.

(b)   He failed to make appropriate allowances for the blind spots in his vehicle in circumstances where;

(i)He was very familiar with the vehicle; and

(ii)He was aware of the vehicle’s blind spots.

20As part of the prosecution case evidence was led in relation to a variety of statements made by the accused to civilian witnesses at the scene. Evidence was also led in relation to statements made by the accused that were captured during body worn camera footage from LSC Bergman. Relevant extracts of this conversation are as follows:

I just waited at the lights, lights turned green and I came round this some kids on push bikes went across… I was watching there was a bloke doing a right hand turn on a motorbike… I was watching hm because sometimes they fly through in front of you.

21In response to a question whether he checked his left mirrors for anybody coming down the inside of your truck he responded:

Yeah I checked because that’s cars quite often pull into the when you trying to do a turn … and then it just – it was well, I thought it was clear.

22To Lindsay Hamilton the accused said that he didn’t know where the lady came from and to Mr Gakovic he said I don’t know where she came from.

23The evidence is clear and accepted by the Crown that the accused did not see the pedestrian whilst sitting at the lights, whilst making his turn, and at the point of impact. The accused only became aware of her existence at a point 98 metres down North Rd when he was alerted by the boys and other bystanders.

Legal principles of dangerous driving

24I have adopted the legal principles from the detailed submissions filed on behalf of Mr Perry in this matter. Such principles were not disputed by the prosecution. The legal principles are as follows.

25The Prosecution must prove, beyond reasonable doubt, that the Accused drove in a manner that is dangerous to the public having regard to all the circumstances of the case: s 319(1) of the Crimes Act 1958. That is, that the Accused’s driving involved a serious breach of the proper management or control of a vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured. 

26The Court of Appeal recently reviewed the authorities that apply to consideration of the legal concept of driving in a manner dangerous to the public in Georgiou v The Queen and summarised the applicable principles as follows:[5] 

[5] Georgiou v The Queen [2022] 301 A Crim R 229 [13]-[21].

Section 319(1) of the Crimes Act provides that a person is guilty of dangerous driving causing death if the person drives a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case and the dangerous driving causes the death of a person. The critical issue at trial was whether the prosecution had proved beyond reasonable doubt that the applicant drove in a manner that was dangerous, causing her car to collide with Mr Varvodic. 

The test is objective and involves a serious breach of the proper conduct of a motor vehicle upon the road, that is ‘so serious as to be in reality and not speculatively, potentially dangerous to others’. The objective question is whether the manner of driving has the necessary quality of being dangerous to the public.

The concept of dangerousness in s 319 of the Crimes Act:

“… imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.”

In one sense, driving, even when carefully undertaken and fully compliant with applicable rules, will always carry some risk to the driver, passengers and other road users. Driving is not free from hazard and the realisation of an ordinary risk of driving does not mean that the driving must have been dangerous. The mere fact that there has been a collision, and in the context of s 319(1) of the Crimes Act, the collision has resulted in the death of a person, does not mean that the driving was dangerous. For the driving to be dangerous, ‘there must be some feature [of the driving] which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention.’

The observation in Jiminez that the defining feature must be framed by reference to the risk that the driving entails, rather than whether it constitutes a want of care, was reinforced by the Court's later observation in the same judgment that:

“But it should be emphasized, and it must always be brought to the attention of the jury, that the condition of a driver must amount to something other than a lack of due care before it can support a finding of driving in a manner dangerous to the public.”

If the trier of fact concludes that the driving was careless, and goes no further, then the critical question on which the offence turns will not have been determined, namely whether the prosecution has proved beyond reasonable doubt that the driving was dangerous. That is why Barwick CJ said in McBride that ‘it is not enough that the vehicle as driven by the [driver] has caused death or injury and the [driver] was negligent, even in some glaring respect.’ A lack of care does not always translate into an increased risk of harm over and above that which ordinarily inheres in driving a motor vehicle, including by person who exhibit a degree of carelessness.

Although dangerous driving may, and often will, be associated with a want of care, negligence is not an element of the offence. As was said in King, particular driving may be undertaken with care and skill but remain dangerous for the purpose of s 319. It follows that the fact that the driving was associated with a degree of carelessness on the part of the driver or that the collision could have been avoided by the exercise of greater care does not suffice to make out a charge of dangerous driving. For that reason, to ask whether the driving was careless may be a distraction from the true enquiry as to whether the driving was dangerous.

A further illustration of the distinction between negligence and dangerous driving can be seen in the judgment of McLure JA in McPherson. In that case, McLure JA described as a ‘fundamental misunderstanding of the law’, a prosecution submission that a driver who contravened the give way road rule resulting in a collision with a vehicle that had right of way, must be driving in a manner that was dangerous to the public. Her Honour was not suggesting that failing to give way could not constitute dangerous driving, self-evidently it may. Rather, it is necessary to ask how the driving affected the risk of harm to road users and members of the public when compared with the proper conduct of a motor vehicle.

Inattention by a driver to the task at hand, may be dangerous. That is because of the risk that inattention poses to the ability of the driver to safely control the vehicle, including by responding to an unexpected change in traffic conditions. Inattention may prevent the driver from steering a true course or braking to avoid a collision, and be dangerous for that reason. However, the level of attention required at any given point is not necessarily constant: it may depend on the terrain, environment and traffic conditions. Indeed, ‘[i]t may be that in some circumstances where particular attention is required to the road and to other road users, momentary inattention will result in a manner of driving that is dangerous within the meaning of the section.’ On the other hand, it could not be suggested that momentary inattention is relevantly dangerous when driving well within the speed limit, along a suburban road, in good conditions and in light traffic. Equally, momentary inattention is not uncommonly associated with driving and may not produce the type of risk necessary to establish dangerous driving

27The following summary of the authorities was recited by Lasry J in DPP v Orchard:[6]

(a) The speed or manner in which the accused drove must have involved such a serious breach of the proper management or control of the vehicle as to be in reality and not speculatively, potentially dangerous to others. This test will only be satisfied if the speed or manner of driving posed a real, and not just speculative, danger to other members of the public who may have been in the vicinity. (King v The Queen (2012) 245 CLR 588, [33], McBride v The Queen (1966) 115 CLR 44 (‘McBride’), [72])

(b) The mere fact that a collision has occurred is not conclusive evidence of a serious breach (McBride, [51]). The law does not require drivers to act with perfect hindsight, or assume that for every accident there must be a remedy. (R v Smith [2006] VSCA 92, [101])

(c) It is not enough that the vehicle as driven has caused death and the accused was negligent, even in some glaring respect. (McBride, [51])

(d) It is difficult to see how a jury, properly directed, could hold that an accused was driving at a speed or in a manner dangerous to the public, unless the evidence justifies the inference of a fairly high degree of indifference to the safety of others. (R v De Montero (2009) 25 VR 694, [38])

[6] DPP v Orchard (Ruling No 1) [2022] VSC 601.

Prosecution submissions

28Regarding the circumstances of driving in this case there is no evidence to suggest that the accused lacked the skills of a driver fully licensed to drive heavy vehicles. Mechanical inspection of the accused’s truck revealed no defects that were considered to have contributed to the collision. Further it is agreed that the road conditions were dry, the weather was fine and the visibility was good.

29There is no dispute in this case that the accused failed to give way to the pedestrian, Mrs Boukouvalas. The dispute is whether he failed to keep a proper lookout in the circumstances of making the left hand turn across an intersection pedestrian crossing and whether he failed to make appropriate allowances for the blind spots he would have been aware of given his familiarity and length of time driving his truck. The fact that he was driving a 16.2 tonne truck and was crossing an area where pedestrians are likely to be, increases the degree to which the accused was required to keep a proper look out in order to safely give way.

30The prosecution rely on the evidence that the accused made the left hand turn without braking despite the fact that his vision must have been impeded by the blind spot. Further the prosecution rely upon the admissions made by the accused at the scene that he was watching a motorcycle turning right, saw two boys on bikes on the crossing and checked his left side wing mirror for cars coming down the left side of his truck, as evidence that he was distracted from making the appropriate observations that should have been made of the pedestrian area in front of him. The prosecution case is that a jury would be entitled to conclude that the accused failed to exercise appropriate driver safety by proceeding to make the left hand turn in circumstances where he was distracted and his vision was impeded by the blind spot.

31It is precisely because of the blind spot that the prosecution say the accused was driving dangerously and point to the lack of braking at any time throughout the turn despite the visual obstruction created by the blind spot. 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. Given the weight and size of the vehicle and the presence of the blind spot the prosecution contend that the accused’s driving involved a serious breach of the proper management or control of his vehicle and was dangerous driving as it created a real risk of death or serious injury to members of the public in the vicinity.

Defence submissions

32The defence contend the prosecution case, that the accused failed to keep a proper lookout and failed to make appropriate allowances for the blind spot, relies on the drawing of inferences. As such, it is a circumstantial case.

33Mr Lewis submitted that the prosecution case is that the accused did not see the pedestrian at any time but that he could have and should have. It is conceded by the defence that Mrs Boukouvalas had right of way and the accused was obliged to give way to her.

34I agree with the defence submission and authorities that a failure to give way may or may not be dangerous. It really depends on the circumstances of each particular case.

35It is agreed between the parties that there were no alcohol, drugs, speed or fatigue or to put it simply there was no ‘poor driving’ by the accused at the time of the collision. Mr Lewis submitted that it is not enough that Mr Perry may have seen Mrs Boukouvalas as she walked down Booran Rd adjacent to his truck, this would not have put him on notice that she was necessarily likely to be at the intersection and waiting to cross. He contended that the crucial time was at the intersection and there is no evidence that at that time when she was waiting at the lights to cross the road and prior to the point of impact, that the accused had a line of sight towards Mrs Boukouvalas.

36Mr Lewis submitted that the prosecution have led no expert evidence regarding the action that the accused man could have taken in order to see Mrs Boukouvalas at any relevant point. Therefore, he contended the Crown case proceeds on a speculative basis that had the accused kept a proper lookout he could have seen Mrs Boukouvalas waiting to cross.

37It was the defence position that the Crown was reasoning backwards, that is because a pedestrian had been hit and killed there must have been something the accused could and should have done to avoid that. This is not a permissible form of reasoning and a jury would be directed not to reason in such a manner.

38I agree with Mr Lewis that particular 36(b)(ii) of the prosecution opening does not fairly summarise the Accused’s conversation with LSC Bergman and the assertions made are not open on the evidence.[7]

[7] See [21](a)(ii) of these reasons.

39In relation to the ‘Crown particular’ referencing the blind spot Mr Lewis submitted that there is no evidence that the accused could have seen the deceased if he had done something to make appropriate allowance for the blind spots. He contends that the Crown case proceeds on an assumption that is unsupported by the evidence.

40On the basis of these arguments Mr Lewis contended there was no case to answer.

41Mr Lewis then turned to consider further evidence. He submitted that the evidence does not discount the reasonable possibility that the accused did make efforts to keep a look out and did make allowances for his blind spot. Rather it was the size of the blind spot coupled with the configuration of the intersection that meant he was simply unable to see the deceased. The evidence of the conversation the accused had with LSC Bergman reveals that he was generally aware of the risks associated with a turn from the position he was in. For completeness Mr Lewis referred to evidence of the civilian witness Vorinder Turen which he contended did not support the prosecution case that the accused failed to keep a proper lookout.

42In relation to the third element of causation Mr Lewis referred to the Court of Appeal case of Kennett v The King.[8] I understood his argument to be that even if element 2 as to dangerous driving was satisfied, which was not conceded, then it would remain entirely speculative to suggest that the deceased could have been seen by an attentive driver carrying out the left turn performed by the Accused. Mr Lewis submitted as he did in relation to element 2 that the Crown could not exclude the reasonable possibility, that even if checks were made and allowances given they would have made no difference to whether the collision and the death of Mrs Boukouvalas occurred.

[8] [2022] VSCA 2022.

Analysis

43The question I must consider is whether the evidence before the jury is capable of establishing a verdict of guilty in respect of the charge on the indictment.

44In approaching this question I am required to take the Crown’s evidence at its highest, accepting all inferences most favourable to the prosecution which are reasonably open to be drawn. If a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt or could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence then there will be no case to answer.[9]

[9] Case Stated by DPP (No 2) of 1993 (1993) 70 A Crim R 323.

45The test which I must apply is not whether the accused should be convicted. Rather, the test is whether, on the evidence, the jury could lawfully convict him.[10] In particular, the test is not whether a verdict of guilty would be unsafe and unsatisfactory, and thus be liable to be set aside on appeal. 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.

[10] DPP v Iliopoulos (Ruling No 3) [2016] VSC 132.

46The test that the trial judge must apply is whether the jury could rationally conclude that any inference or hypothesis consistent with innocence is not reasonably open on the evidence. In applying the test it is important to bear in mind that the drawing of inference is essentially the function of the jury as the sole judges of the facts in the trial.

47The Crown case is that the accused failed to keep a proper look out and failed to make appropriate allowances for the vehicles blind spot. The evidence relied upon by the Crown includes the witness testimony, expert testimony, the exhibits which includes CCTV footage of the collision itself, photographs and overhead maps. The prosecution contend that the accused did a sweeping left hand turn without braking and failed to give way to the pedestrian. Additionally they have led evidence of the size and impact of the blind spot and the fact that the accused has driven and owned the truck for 21 years and so would be well familiar with the blind spot.

48As there is nothing overtly dangerous about the accused’s driving, in that there was no speeding, alcohol, drugs or fatigue. The prosecution case relies on inferences to be drawn by the jury that the accused driving was in fact dangerous. I agree it is a circumstantial case.

49Further I agree with the submission of Mr Lewis that the Crown are essentially asking the jury to infer that there was something that the accused man could or should have done to avoid the collision. The prosecution rely on the fact that the accused failed to give way and failed to keep a proper look out taking into account the blind spot in his vehicle.

50The definition of failing to give way pursuant to the Road Safety Rules means:[11]

(i)if the driver or pedestrian is stopped - remain stationary until it is safe to proceed; or

(ii)in any other case - slow down and if necessary stop to avoid collision.

[11] Road Safety Rules 2017 (Vic) sch 5.

51I adopt the observation of Justice Lasry in the case of Orchard that one can only fail to give way if one has realised that in not doing so there is a risk of collision.[12] In that case it was overwhelmingly clear that the accused did not see the motorcyclist and therefore perceived no risk of a collision. Further there was evidence, that there was a point when the accused could have seen the motorcycle although the Crown conceded that was momentary.

[12] DPP v Orchard (Ruling No 1) [2022] VSC 601.

52In this case the Crown concede that they cannot provide evidence that the pedestrian could be seen by the accused. An obvious difference from the case of Orchard is the location of the collision, that is on a pedestrian crossing where a driver may expect a pedestrian to be located.

53Notwithstanding the location of the collision in my view there is not a sufficient basis for a jury to lawfully conclude that the driving of the accused was dangerous. This is in light of the state of the evidence and including the conversations the accused had with LSC Bergman and the other civilian witnesses at the scene.

54There was no evidence of any indifference by the accused to the safety of others.  To the contrary the evidence was that he had made numerous checks and was conscious of the hazards in the intersection.  On the state of the evidence, the jury would not be able to engage in a process of drawing reasonable inferences, as the prosecution invite them to, but would be acting on conjecture. 

55I would therefore uphold the no case submission and will instruct the jury to enter a verdict of acquittal at 2.15pm.