Director of Public Prosecutions v Pha

[2022] VCC 2339

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00628

DIRECTOR OF PUBLIC PROSECUTIONS

v

KA NI PHA

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2022
DATE OF RULING:	14–19 July 2022
CASE MAY BE CITED AS:	DPP v Pha
MEDIUM NEUTRAL CITATION:	[2022] VCC 2339

RULING
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Subject:CRIMINAL LAW

Catchwords:              No case submission; Dangerous driving causing death; Dangerous driving causing serious injury; Causation.

Cases Cited:Royall v The Queen [1991] 172 CLR 378; Dunkley-Price v The Queen [2015] VSCA 310; R v Lam (Ruling No.20) [2005] VSC 296; Director of Public Prosecutions No.2 [1993] 70 ACR 323

Ruling:  No case submission upheld

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms R Harper with Ms C Richardson	Office of Public Prosecutions
For the Accused	Mr J Fitzgerald with Mr M Dyason	Victoria Legal Aid

HIS HONOUR:

Introduction

1This is an application by the accused, Ka Ni Pha, seeking that I determine that he has no case to answer in respect of each of the two charges on the indictment. Those charges, dangerous driving causing death and dangerous driving causing serious injury, each comprise three elements. The first is that the accused at the time of the offence, drove a motor vehicle; second, that the accused drove his motor vehicle in a manner that was dangerous to the public; and, third, that the dangerous driving caused the victim to die, in the case of Charge 1, or caused serious injury to the victim, in the case of Charge 2.

2The accused's application puts the third element of causation in issue. Essentially, Mr Fitzgerald argues that the prosecution case is incapable of establishing that the accused's alleged dangerous driving was a, or the, substantial and operative cause of the death of Mrs Gargano and the serious injury to Mr Gargano.

3The prosecutor, Ms Harper, opposes the application, submitting that the question of causation is quintessentially a matter to be determined by the jury and that the evidence led by the prosecution is capable of establishing that the accused's dangerous driving was indeed a substantial and operative cause of the death and the serious injury.

Summary of circumstances

4In Ruling No. 1 as to the application to exclude the record of interview, I set out in summary the allegations supporting the charges. In brief, it is alleged that at about 7.15am on 14 May 2019 Ms Rosina and Mr Rocco Gargano were travelling south along Springvale Road to meet their walking group at the Parkmore Shopping Centre. At this time the accused was travelling west along Rosalie Street approaching the intersection with Springvale Road. The accused stopped his vehicle at the give way line and waited for two southbound vehicles to pass in lane two of Springvale Road. The third southbound vehicle in lane one nearest the curb began to slow and indicated to turn left into Rosalie Street.

5As vehicle began to turn, the accused drove across lane one into lane two and collided with the front passenger side quarter panel of the Garganos’ vehicle. The force of the collision rotated the Garganos’ vehicle 180 degrees and the vehicle began immediately accelerating north along Springvale Road towards southbound traffic.

6Their car travelled for approximately 50 metres along Springvale Road before it was involved in a second head-on collision with a southbound Toyota HiAce which had been travelling in lane three of Springvale Road. It is the prosecution case that the accused drove in a manner which was, in all of the circumstances, dangerous by failing to give way to Ms Gargano's car as he attempted to cross Springvale Road in order to turn right into that road, and in so doing, caused Ms Gargano's death and caused the serious injuries to Mr Gargano.

Evidence relevant to the application

7For the purposes of this application, there were three sources of evidence which were not in dispute and which collectively provided a reasonably comprehensive picture of the circumstances of the collisions leading to the death and the serious injury. As will be seen however, there are some significant gaps in that evidence.

(1) CCTV evidence

8The first source of evidence is the CCTV footage obtained from the Puma service station which was located on the south-eastern corner of Springvale Road and Rosalie Street. That footage clearly and graphically shows the chain of events leading to this tragedy.

9The accused's Toyota Camry can be seen stopped at the give way sign, facing east on Rosalie Street, giving way to cars travelling south in the three-lane roadway along Springvale Road. It is clear that the accused, at that point, intended to turn right into Springvale Road and head north, crossing the southbound carriageway.

10A car approached in the inside-most eastern lane on Springvale Road, travelling south, and indicated its intention to turn left into Rosalie Street. As that car commenced that turn, the accused's car can be seen to move in a westerly direction across Springvale Road in order to get to the median strip in the centre of the highway in preparation to enter the northbound lanes.

11As the accused's car got to the centre lane of Springvale Road on the southbound carriageway, it collided with the front passenger side of the Toyota Corolla, driven by the deceased, which had been travelling south in the centre lane. In evidence, this was described as the first collision.

12The impact of that collision caused the Corolla driven by Mrs Gargano to rotate 180 degrees in an anticlockwise direction such that it faced north, that is, in the opposite direction to that which it had been travelling. The Corolla can then be seen to accelerate back along Springvale Road, heading north in the southbound carriageway, in the most western or outside lane.

13After travelling approximately 50 metres, the Corolla collided head-on with a Toyota HiAce van. This was described in evidence as the second collision. One reasonably unique feature of this case is that both collisions can be clearly seen in the CCTV footage and there is, therefore, an independent and objective depiction of the chain of events leading to the death and to the serious injury.

(2) Evidence of DLSC Michael Hardiman

14The second source of evidence relevant to this application is the expert evidence of Detective Leading Senior Constable Michael Hardiman, who gave evidence as an expert in the field of accident reconstruction. There was no issue that Mr Hardiman was a well-qualified and experienced accident reconstructionist.

15The opinion of Mr Hardiman as to how the two collisions occurred was put by him in the following terms:

“Essentially, the Camry has pulled up to the intersection at Rosalie Street and has entered the intersection, basically failing to give way to the Corolla. Where the collision has occurred between, or a more minor collision has occurred between the Corolla and the Camry. That that has then turned the Corolla around and it has driven down the road and been involved in a fairly significant collision event with the Toyota HiAce van.”

16Mr Hardiman explained that his investigation had been aided by data obtained from the airbag control module fitted to the airbag in the front of the Corolla. That airbag did not deploy in the first collision, however, it did deploy in the second collision. He also obtained similar data from the HiAce van, although, not from the accused's Toyota Camry because of its age.

17As to the first collision, the precrash data indicated that 4.3 seconds before the first collision, the Corolla was travelling at a speed of 60 kilometres per hour, which was the applicable speed limit. And in the following seconds, to the point of impact, it slowed slightly to 56 kilometres per hour.

18The accelerator pedal was depressed not more than 10 per cent of its extent, consistent with the vehicle travelling at a constant speed. In the lead-up to the collision, there was no brake application, however, 0.3 of a second before impact, it appears that the brake switch indicator came on.

19The speed of the accused's Toyota Camry, from stationary at the give way sign to the point of impact in the centre lane with Mrs Gargano’s car, could not be calculated. However, by reference to testing of that model of car, Mr Hardiman opined that it would not have been possible for the accused's vehicle to have been travelling at more than 21 kilometres per hour. That is its maximum possible speed in those circumstances. It followed that the accused's speed was likely to be something less than 21 kilometres per hour.

20Mr Hardiman said that the Corolla sustained two separate episodes of damage in the two collisions. The damage to the Corolla from the first collision was focused on the front passenger side of the vehicle. The photographs tendered in evidence depict damage which removed the headlight assembly and caused crushing to the front quarter panel, front passenger side tyre and wheel rim. It is, according to Mr Hardiman, damage which is noticeably less severe than the damage sustained in the second collision, to which I will come shortly. The accused's vehicle, upon impact in the first collision, moved back into the inside lane and became stationary outside the Puma service station.

21The most noticeable damage to the Camry was that it lost its front fender and there was some damage to the headlight assembly, and to the bonnet. The accused was unhurt in the collision.

22As to the second collision in which the Corolla proceeded back along Springvale Road in the wrong direction, the precrash data showed that the Corolla, at 4.2 seconds prior to the second collision, was travelling at 20 kilometres per hour and, at 2.2 seconds before impact, it had accelerated to 38 kilometres per hour.

23The data also indicated that the engine was rotating at a rate of 2,800 RPM at 4.2 seconds, increasing to 3,600 and then to 4,400 RPMs at 2.2 seconds before impact. There was no valid data available for the 2.2 seconds immediately before impact, so the speed of the Corolla at impact was not known.

24It was also determined that the brake pedal had not been engaged on the Corolla, however, the accelerator pedal had been depressed to an extent of 25 per cent. Mr Hardiman was able to calculate that the Corolla slowed by a maximum of 51 kilometres per hour “during the crash phase of the second collision”.

25He described that crash deceleration of 51 kilometres per hour as “a significant collision event”. He formed the view that the HiAce van was not speeding. He was also able to estimate the closing speed of the HiAce van and the Corolla, at the point they came together, as in the order of between 78–89 kilometres per hour.

26The damage caused to the Corolla by the second collision focused on the driver's side of that car, which he described as “more significant than the first collision”. He put it in these terms:

“I would describe this damage as more significant than the first collision between the Camry. The bonnet has been forced up and rearward and there's some significant cuts and scratches on the bonnet. The whole front corner of that vehicle is missing, and there's some structural damage. The chassis rail, which is one of the main structural components of the vehicle and the front corner panel has been forced rearward and it's just more significant that damage, which again is not unexpected due to the nature of the collision between the vehicles, the HiAce and the Corolla in this case.”

27Finally, it was noted that as the Corolla travelled north just before the second collision, there appeared to be some minor movement of the vehicle which Mr Fitzgerald put to Mr Hardiman as possibly due to steering input. Mr Hardiman was unable to say whether the movement was due to steering or perhaps some other cause such as distorted wheel alignment. On the whole, Mr Hardiman's evidence allows for a greater understanding of the relative speeds and sequence of events, albeit there remains some gaps.

(3) Evidence of Dr Baber

28The third source of evidence relevant to this application is the evidence of the consultant forensic pathologist, Dr Baber. Dr Baber determined the cause of death in the following terms. Thoracic injury sustained in a motor vehicle incident, and then, as to possible contributing factors, they were listed as: Recurrent atrial fibrillation; non-insulin dependent diabetes mellitus, and hypercholesterolaemia.

29Dr Baber formed that view, notwithstanding that she was not able to conduct an autopsy after objection from the family. She also viewed the CCTV footage which informed her opinions. Dr Baber was asked the following questions in evidence-in-chief:

Question: “Are you able to comment on whether the injuries are consistent with either of those collisions from what you have seen?'”

Answer: “The rib fractures possibly could have been sustained in either of those but more likely to be the second, given – although I'm not fully aware of the speeds, but just from watching, the impact, and the effect it had on the car. However, the main injury, which is the blood in the sac around the heart, and into the chest cavity; that, as I said later in my report, is most likely because of a ruptured aorta, and that would have occurred in the high impact, second collision.”

Question: “Is it possible to say from your examinations, whether the initial collision caused a medical episode of some sort?”

Answer: “No.”

30Dr Baber was then asked whether or not her opinion was limited by reason of the fact that she was unable to perform an autopsy. She said that it was. She was asked in what way her opinion was limited and responded as follows:

“The reason why I would have liked to have performed an autopsy is to confirm the injuries were actually as I expected. So, particularly with regards to the rupture of the aorta, because it's possible that Mrs Gargano may have had a recent heart attack, and sometimes the heart can actually rupture at the site of that heart attack a few days later. So, it would be nice to be able to confirm or exclude that. And also, the state, the things like the state of her coronary arteries; how bad they were. If they had been very bad, you know, it would be more likely that she may have had a medical event after the first impact due to, you know, physiological shock. And just, you know, it might have given us a better picture as to why she made those changes in the car, that she did, the second time.”

31Finally, Dr Baber was asked:

“Having suffered a ruptured Aorta, are you able to estimate how long one could survive for after that incident or that injury?”

Answer: “When it ruptures into the pericardial sac, then it's really only a matter of minutes rather than – definitely not hours, because as the sac fills up with blood it compresses the heart and stops it from beating. And so, as a result of that, blood is unable to be pumped around the body, so it would probably be just a matter of minutes before she certainly lost consciousness.”

32I interpolate that there was evidence that Mrs Gargano was conscious when she was initially assisted by lay witnesses who first responded to the second collision. In cross-examination Dr Baber confirmed her view that the second collision resulted in the main injury, causing death.

33Two points may be taken from Dr Baber's evidence. The first is that it cannot be known what condition Mrs Gargano was in after the first collision, and the second is that the second collision almost certainly caused her death.

Submissions

34Turning to the submissions of the parties, Mr Fitzgerald contended that in light of the evidence I have summarised, the Crown case was incapable of rebutting the reasonable hypothesis consistent with innocence, that the deceased's driving, after the first collision, broke the chain of causation.

35It was contended that what happened to the deceased after the first collision cannot be known. It cannot be known whether she suffered a medical event or alternatively, accelerated away from the first collision in a state of panic, confusion or for some other irrational reason.

36Why the deceased's car accelerated away in the opposite direction can only be a matter of speculation but relying on reasoning adopted by Dean and Dawson JJ in Royall v The Queen[1] to the effect that the chain of causation will be broken if a victim reacts to an event in a very unexpected way, that is, in a way that is not thought to be a natural consequence of the accused's behaviour, Mr Fitzgerald submitted that the third element is therefore not capable of being proven in these circumstances.

[1](1991) 172 CLR 378, 412.

37Ms Harper, on behalf of the prosecution, contended that there can be no doubt that the accused triggered the sequence of events that led to the death and to the serious injury. The substantial and operating cause of that death was the accused's failure to give way in causing the first collision. The events leading to the second collision were proximate, they were immediate, and she contended, naturally flowed from the accused's dangerous driving.

38The inference that the deceased had driven independently in the wrong direction, head on into the HiAce, was, she contended, not reasonable. In support of the prosecution, Ms Harper referred to the decision of the Court of Appeal in Dunkley-Price v The Queen,[2] where the accused, it was held, had been properly convicted of culpable driving where he had come to a stop in the left hand running lane, not the emergency lane, on the Western Highway to make or receive a telephone call.

[2][2015] VSCA 310.

39The applicable speed limit on that highway was 110 kilometres per hour. Shortly after the accused stopped his car, another car stopped behind the accused's car and was unable to move out because of passing traffic in the right hand lane. A third car then collided into the rear of the second car, killing the driver and seriously injuring the passenger. The driver of the third car was convicted of dangerous driving causing death and dangerous driving causing serious injury.

40On appeal, Mr Dunkley-Price, having been convicted of culpable driving, contended that the conviction was unsafe because his driving could not have been said to have caused the death of the driver of the second car. That contention was rejected on the basis that his actions in stopping on the highway involved such a high risk of death or really serious injury to others that it merited criminal punishment.

41There were, the court found, two operative causes of the collision: the actions of Mr Dunkley-Price and the actions of the driver of the third car. Similarly, here, the prosecution contended that the accused's actions may not be the only cause of the death or serious injury but they were nonetheless a substantial and operating cause. Further, it was submitted that it was open to the jury to exclude beyond reasonable doubt the possibility that the deceased acted independently in accelerating into oncoming traffic.

42Essentially, it was put that that hypothesis was wholly improbable. The general legal test in respect of no case submissions is set out in the High Court decision of Doney to the effect that if 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.

43To 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. More pertinently, in respect of circumstantial cases, the no case test was, with respect, concisely summarise by King CJ in the decision case stated by the Director of Public Prosecutions No.2 [1993] 70 ACR 323 at 327. His Honour there said:

“If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence and that evidence, if accepted, is capable of producing in a reasonable mind the conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction in the circumstantial case. That implies that even if all the evidence of the prosecution were accepted and all the inferences most favourable to the prosecution which are reasonably open were drawn, the reasonable mind could not reach a conclusion of guilt beyond reasonable doubt or, to put it another way, could not exclude all hypotheses consistent with innocence as not reasonably open on the evidence.”

44I turn then to the relevant legal principles with respect to causation. Ordinarily, the test to be applied by the jury is whether it is satisfied beyond reasonable doubt that, in this case, the dangerous driving was a substantial and operative cause of the death. I should make it clear that here that the prosecution allege that the dangerous driving which caused the death has been particularised as the failure by the accused to give way to the deceased's vehicle in causing the first collision.

45The element of causation in these charges is concerned with legal responsibility for the death or the serious injury that has occurred and as McHugh J stated in Royall at 440:

“Before a person will be held criminally liable for his or her act or omission, the causal link between that act or omission and the injury or damage must be sufficiently cogent to justify attributing causal responsibility, that is, legal responsibility, to that person.”

46An accused will not be causally responsible where there is an intervening cause sufficient in law to negate their liability. In the ruling provided by His Honour Redlich J, as he then was, in R v Lam (Ruling No.20),[3] His Honour considered the issue of causation in the context of victims who were chased by people with swords and to escape, jumped into a river where they drowned. His Honour in that ruling reviewed what he described as the English self-preservation cases and also of course, the High Court decision in Royall.

[3][2005] VSC 296.

47He concluded that an intervening act of a deceased will not break the chain of causation if it can be described as a natural consequence of the threatening conduct of the accused. Conversely, it seems that an act by a victim which can be seen to be independent of the accused or involves the victim taking unreasonable action out of proportion to the threat posed by the accused may break the chain of causation. Deane and Dawson JJ in Royall at 412 referred to that proposition in these terms:

“If in a case of fright or self-preservation, the victim overreacts to the threatening acts or words of the accused, that may be sufficient to break the chain of causation. That proposition is sometimes put in terms of reasonable foreseeability. When the act done in self-preservation is unreasonable, it negatives causal connection.”

48Chief Justice Mason, in the same decision, described an act capable of breaking the chain of causation at 389–90 in these terms. His Honour said:

“It seems to me that, in the context of causation, the principle is best formulated as follows: where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused's conduct. Whether it is necessary for the prosecution to establish also that the mode of escape adopted is a natural consequence of the victim's apprehension for his or her safety does not arise here for the deceased had no means of escape other than jumping out of the window in the situation posited. The question could arise only in circumstances where the victim does something irrational or unexpected, in which event it might be more difficult to establish that the injury sustained was a consequence of the accused's act and not the product of the victim's voluntary act.”

49The self-preservation cases are, of course, different to the sequence of events arising in this case. But in my view, there is some analogy with the concept that if the actions of the victim which cause death are a natural consequence of the accused's behaviour, then causation will not be broken. However, if the victim's actions or response is irrational or unexpected then it will be much more difficult to establish that the accused caused the death.

Analysis

50Turning then to my analysis of those principles and the parties' submissions, I should start by saying that in considering this application I wish to make the observation that I have found the circumstances of this tragedy really quite troubling, if not least because it is such a unique case.

51As Mr Fitzgerald emphasised, correctly in my view, we are not to know what befell Mrs Gargano after the first collision. Whether her subsequent actions were voluntary or involuntary cannot now, be ascertained, and that is so despite the comprehensive evidence presented by the prosecution.

52Indeed, despite that evidence, there still remain gaps in our understanding as to what occurred. Certainly, we do know that immediately after the Corolla rotated anticlockwise 180 degrees, it took off at some speed and accelerated away, almost as if to escape the scene of the first collision.

53For the next 2.2 seconds the accelerator pedal was depressed to an extent of about 25 per cent, the brakes were not engaged and the car travelled over a distance of 50 metres or so before it impacted with the HiAce van. That van was not speeding but the closing speed of the two cars was in the order of 78–89 kilometres per hour. It was described uncontroversially as a significant collision, and, according to the forensic pathologist, it was this second collision which resulted in the main injury, causing death.

54To resist the no case submission on causation, it follows from what has been discussed that the prosecution must, in my view, point to evidence which is capable of negating the hypothesis that it was the deceased's driving, whether out of panic, confusion or for some other irrational reason, which was the substantial and operating cause of the death and serious injury, and that the accused's conduct merely created the setting in which the death or serious injury occurred.

55I accept, as Ms Harper contended, that it would be unlikely that a person would rationally drive the wrong way up the road, directly into oncoming traffic. Be that as it may, however, the authorities nonetheless establish that if a victim's response to an event is irrational, that is, not a natural response or not a natural consequence of the accused's actions, then the chain of causation may be broken.

56Here, for reasons we cannot know, the response to the first collision was quite extraordinary. To conclude that Mrs Gargano simply suffered some medical event in the first collision caused by the accused would be nothing more than speculation or guesswork. The defence hypothesis that Mrs Gargano may well have responded consciously but irrationally appears to me to be a reasonable hypothesis, having regard to all of the objective evidence comprising the CCTV, Mr Hardiman's investigation and Dr Baber's conclusions.

57Taking it at its highest, I am not persuaded that the prosecution case is capable of excluding that hypothesis. In my view, the behaviour of the Corolla after the first collision could not be viewed as a natural consequence or a natural response to the accused's failure to give way.

58Another way of putting my conclusion is that the link between the accused's driving and the second collision is not sufficiently cogent to justify attributing causal responsibility, that is, criminal responsibility, to the accused. If the prosecution case, taking the evidence at its highest, was capable of proving beyond reasonable doubt that Mrs Gargano was rendered, in some way, incapacitated such that she acted involuntarily as a result of the accused's driving, then the charges would be placed before the jury.

59In my view, however, it is not so capable. It cannot disprove the defence contention that the chain of causation was indeed broken. Accordingly, I rule that there is no case to answer on both charges and I will discharge the jury from delivering a verdict and instead direct that an entry of not guilty to both charges be made in the records of the Court.

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