DPP v Orchard (Ruling No 1)
[2022] VSC 601
•27 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0289
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| JESSE ORCHARD | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 September 2022 |
DATE OF RULING: | 27 September 2022 |
DATE OF REVISED REASONS: | 7 October 2022 |
CASE MAY BE CITED AS: | DPP v Orchard (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 601 |
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CRIMINAL LAW – Trial – No case submission – Accused charged with one count of dangerous driving causing death – Whether evidence taken at its highest could sustain a guilty verdict – Meaning of ‘dangerous driving’ – Whether accused exhibited a ‘momentary lapse’ – Criminal Procedure Act 2009 (Vic) ss 226(1)(a), 226(2), 232A – Crimes Act 1958 (Vic) s 319(1) – Road Safety Rules 2017 (Vic), Schedule 5.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Grant Hayward | Office of Public Prosecutions |
| For the Accused | Mr Jarrod Williams | Tony Hargreaves & Partners Lawyers |
HIS HONOUR:
Introduction
In this matter, the accused man is charged with one charge of dangerous driving causing death. The prosecution case against him is that in the early hours of Thursday, 16 July 2020, he was driving a Scania P440 garbage truck and was collecting waste from various locations in the Mulgrave area.
In the course of doing that, at about 5.30am he drove his truck into a BMW dealership or office block at 783 Springvale Road and collected waste. That building is on the western side of Springvale Road. About 5.31am, he left the car park via the boom gate and drove down the driveway towards the exit onto Springvale Road. At 5.32am, he cleared the security gate, driving down the remainder of the driveway onto that road and pulled into the middle of three lanes, which were the northbound lanes of Springvale Road. His venture into the middle lane was due to the size of the vehicle he was driving.
At that stage, the deceased man, Sengly Say, was riding his motorcycle north along Springvale Road, and apparently in the right hand lane. He had very high levels of methylamphetamine in his body, as well as amphetamine, MDMA, and heroin.
Evidence has been given during the course of the trial about the effects of those drugs on the ability to manage a motor vehicle and the likely effects on the potential to speed and engage in risk-taking behaviour. Though for present purposes, those issues do not really arise. Additionally, the motorcyclist was unregistered, and the deceased was not licenced to ride a motorcycle of the kind that he was riding.
The CCTV images which have been obtained from surrounding buildings make it clear that the front headlight of the motorcycle was on. The motorcycle was a 659cc endurance bike and, on any view, a powerful vehicle. It has disc brakes on the front and rear but did not have antilock braking system (ABS) fitted.
When the deceased man was a short distance away, the accused executed a U-turn from the left hand lane of the northbound carriage way on Springvale Road, turning right into the right turn lane for the intersecting street, which was Glenvale Crescent. As a result, the motorcycle collided with the rear-end of the truck as the truck was completing its U-turn. The deceased man was run over by the rear axle dual wheels of the truck. The accused completed the manoeuvre and pulled over in the left hand southbound lane, knowing an incident had occurred.
‘No case’ submission
The prosecution case has now closed, and counsel on behalf of the accused, Mr Williams, has made the submission that on the charge of dangerous driving causing death, there is no case for his client to answer. The jury is waiting while this is dealt with.
The charge of dangerous driving causing death has three elements:
(1)that the accused was driving a motor vehicle;
(2)that the accused drove dangerously; and
(3) that the dangerous driving caused the death or serious injury of another person.
Mr Williams’ submission proceeds on the basis that the prosecution have no case for the jury to consider on either elements two or three.
The legal framework
The making of this submission is permitted by s 226(1)(a) of the Criminal Procedure Act 2009 (‘the Act’). The test to be applied when such a submission is made is well established, and counsel have both referred to the principles:[1]
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. 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.
[1]Doney v The Queen (1990) 171 CLR 207.
A judge assesses a ‘no case’ submission by taking the prosecution evidence (including the answers of prosecution witnesses to cross-examination) at its highest and drawing all inferences that are most favourable to the prosecution case that are reasonably open.[2] Obviously those inferences must be open on the evidence and exclude a reasonable hypothesis consistent with innocence.
[2]See Attorney-General’s Reference (No 1 of 1983) [1983] 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.
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.[3]
[3]See Illiopoulos [2016] VSC 132, [8]-[9].
The weight of the evidence is purely a question for the jury. I am not called upon to determine whether I think the accused should be convicted. The test is whether, as a question of law, a jury could lawfully find the accused guilty.[4]
[4]See May v O’Sullivan (1955) 92 CLR 654; Zanetti v Hill(1962) 108 CLR 433.
I must assume that the jury will accept the prosecution witnesses as credible and reliable, though in this case issues of credibility and reliability do not really arise. The assessment of the witnesses, including the expert witnesses, is a matter for the jury, where on one view of the evidence the evidence demonstrates the accused's guilt, and if that is that is the situation then a ‘no case’ submission, as has been made here, must be rejected.[5]
[5]See Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410; R v Galbraith [1981] 2 All ER 1060.
Following the commencement of s 226(2) of the Act, in considering the submission, I may take into account any evidence from an expert witness which has already been called by the accused. This may occur where the judge orders, under s 232A of the Act, that expert evidence be given concurrently or consecutively.[6] That has occurred in this case. Both the expert witnesses, Dr Hardiman (called for the prosecution), and Mr Elkenman (called for the accused man), have given their evidence before the conclusion of the Crown case.
[6]See Supreme Court of Victoria Practice Note SC CR 3, ‘Expert evidence in Criminal Trials’, 13. (Consecutive or Concurrent Evidence).
The test for a ‘no case’ submission is different to the test on appeal as to whether a verdict is ‘unsafe or unsatisfactory’. The trial judge determining whether to upload a ‘no case’ submission must apply the test stated above and may not uphold a submission on the basis that any conviction is likely to be overturned in the Court of Appeal as being unsafe or unsatisfactory.[7]
[7]See Doney v R (1990) 171 CLR 207; Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410; M v R (1994) 181 CLR 487.
The prosecution’s case
So, having briefly outlined the facts of the case as I understand them, it is important to note that in the course of the prosecution opening, Mr Hayward told the jury the following:[8]
The prosecution alleges that Mr Orchard drove in a manner that was dangerous to the public by failing to keep a proper lookout and failing to give way. These failures, the prosecution says, occurred in circumstances where Mr Say would have been clearly visible to the accused due to the motorcycle’s headlight and the conditions at the scene at the time of the collision. [emphasis added]
[8]Transcript of Proceedings, Director of Public Prosecutions v Jesse Orchard (Supreme Court of Victoria, S ECR 2021 0289, Lasry J, 19 September 2022), 34.
I note that in relation to the meaning of failing to give way, under Schedule 5 of the Road Safety Rules 2017 (Vic), ‘give way’ means:
(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 a collision; …
Clearly one can only fail to give way if one has realised that in not doing so there is a risk of collision. In this case, it seems overwhelmingly clear that the accused did not see Mr Say’s motorcycle and therefore perceived no risk of a collision.
Much of the evidence having been called, or at least being able to be perceived more recently, Mr Hayward said in relation to the Crown case the following:
So that the Crown particularises the dangerous manner and failure to give a proper lookout occurred when the truck was in the left hand lane about to steer to the right.
The meaning of Mr Hayward's particulars will become apparent. The important question is why did the accused not see the motorcycle ridden by the deceased? So, the second limb of the Crown’s case is the failure to keep a proper lookout. In relation to that two experts, Dr Hardiman and Mr Enkelman, have given evidence, and I refer to some of that evidence.
The prosecution’s expert witness
At page 174 of the trial transcript, Mr Hayward asked Mr Enkelman the following:[9]
Question: ‘Thank you, so just to be clear about this, we’re talking about the point in time where the truck is exiting the driveway of the BMW premises?’
Answer: ‘That’s the nine and a half seconds that's being referred to’.
Question: ‘Right, and you say assuming that the motorcyclist was travelling at 91 kilometres per hour it was 55 metres north of the intersection with Miles Street?’
Answer: ‘Correct.’
Question: ‘So you disagree that it is not possible for a person in the position of Mr Orchard to see the motorcycle, however you allow for the possibility that it may not have been visible?’
Answer: ‘That's correct.’
[9]Transcript of Proceedings (n 8, 26 September 2022).
Later at page 182:
Question: ‘You and Mr Elkenman may disagree about when Mr Orchard was last in a position to observe northbound traffic in the rear vision mirrors as you've explained, but is it fair to say you both agree that once a truck commences to turn right, the ability to observe, for example, a motorcycle approaching from the rear is either reduced or not possible?’
Answer: ‘Yep. We - so we agree that he's last visible in the mirrors when the truck is in the left lane but there’s disagreement as to how many seconds prior to impact that is which affects how far away the motorcycle would be. We both agree that once the truck starts to turn right, the ability to see the motorcycle in the mirror diminishes.’
At page 183:
Answer: ‘So five seconds before impact the truck was travelling straight north along Springvale Road. At that point he will have visibility in his wing mirror, directly behind him, as he was travelling northbound in the lane. He commences to turn right five seconds before impact. Once he starts to turn right his ability to see the mirror is lessened, but at that - but at that the five seconds, based on the assumption of the 91 kilometres an hour, the motorcycle is 126 metres from impact, which has him beyond the curve in the road and on the straight section of road, and therefore likely to be visible in the rear vision mirror - rear view mirror.'
At page 184:
Question: ‘First of all, to be clear, do you say that when Mr Orchard was in the far left lane, if I can describe it like that, and the motorcycle was 126 metres away, five seconds prior to impact, a person in the position of Mr Orchard could see the motorcycle approaching from the south?’
Answer: ‘Without positioning in the truck and without positioning the motorcycle on the road, there's no way to be certain, but there is absolutely no obstruction between the truck and the motorcycle at that point. So my opinion is that at that point the motorcycle should be visible to the driver of the truck.’
Then, at page 188, Mr Hayward asked:
Question: ‘At the point in time when Mr Orchard was in the far left lane, five seconds prior to impact, could Mr Orchard have seen in his mirror a motorcycle approaching from his south?’
Answer: ‘Yes.’
Question: ‘That’s as I understand it, based on your opinion that at the time the motorcycle was 126 metres away and five seconds from impact.’
Answer: ‘That’s correct.’
I then asked Dr Hardiman:
Judge: ‘Are you able to say for how long he could’ve seen him for?’
Answer: ‘No.’
Dr Hardiman was then cross-examined by Mr Williams. At page 204 Mr Williams asked:
Question: ‘And at the point that you say he’s straight in the left lane, that’s only a couple of seconds after he’s pulled out from the BMW, correct?’
Answer: ‘Correct.’
Defence’s expert witness
Mr Enkelman was then called on behalf of the accused and referred to diagrams; in particular, a diagram which became part of Exhibit 1, and that diagram set out a number of reference points. The most regularly discussed reference point was Reference Point 12, which illustrates the truck in the left hand northbound lane of Springvale Road for a very short period of time.
At page 224 of the transcript, Mr Williams asked Mr Enkelman:
Question: ‘Yes, now, at point 12 - -?’
Answer: ‘Then he has a good view.’
Question: ‘Yes, at point 12 you've drawn what looks like a straightish line?’
Answer: ‘Yes.’
Question: ‘Presumably to indicate that the truck is there straightening up before it swings right, is that correct?’
Answer: ‘Exactly, yes.’
Question: ‘But am I right in understanding you can't say how long the truck was straight for before it moved to the right?’
Answer: ‘No, I cannot. My sketch there is a handwritten or hand drawn sketch.’
Question: ‘I'm just wanting to make sure I understand that where you've got point 12 for some period of time, and no one knows how long the truck was facing north and straight?’
Answer: ‘Correct, yes.’
Question: ‘That's the only – you’re saying, are you, that’s the only opportunity he had to see the motorcycle in his rear view mirror?’
Answer: ‘That’s the only one he has, yes.’
Question: ‘Because once he turns to the right, then the angle changes his opportunity; is that right?’
Answer: ‘Correct, yes.’
At page 236 Mr Williams asked Mr Enkelman:
Question: ‘When I read, “If the motorcycle is travelling in the centre of the northbound lane, then theoretically it should be visible”, I take it you are saying even at 181 metres the motorcycle is theoretically visible?’
Answer: ‘Is theoretically what?’
Question: ‘Visible.’
Answer: ‘It may be. But if you look at the acuity of vision as I’ve presented in my - in the sheet 10 of 10, you can see that that is highly unlikely that it is visible.’
There, the witness is referring to sheets which attempt to demonstrate the field of vision available from both the longer range mirror attached to the truck and the shorter range mirror.
Mr Hayward then put this question to Mr Enkelman at page 237:
Question: ‘I want to put it to you fair and square to you, Hardiman’s opinion is that at five seconds prior to impact, when the truck is in the far left hand lane and the truck is 126 metres away, the motorcycle could be visible in the rear vision mirror. Do you accept that?’
Answer: ‘Well, that is speculative and I can’t confirm or deny it’.
So, the experts, it would appear on the evidence, agree that the opportunity the accused had to see the motorcycle in the particular context only arose when he was in the left hand lane in the course of making his turn and so, cannot say for how long the vehicle was in that position for.
The alleged offence – dangerous driving causing death
So far as the offence of dangerous driving causing death is concerned, the Court of Appeal recently turned its attention to what that meant in a similar context in the judgment of the court in Georgiou[10] and said:
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 the driving was dangerous. For 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.
[10]Georgiou, Effie v The Queen [2022] VSCA 172, [16]-[17].
Mr Williams has referred to several other authorities in paragraph 18 of his written submissions, in the following terms:
(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 (King), [33], McBride v The Queen (1966) 115 CLR 44 (McBride), [72])
(b) There 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 (Smith) [10])
(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. (De Montero, [38])
So, in this case, in order for the jury to conclude that the accused was guilty of the offence, the accused man must have done something more than fail to exercise due care. From the point of view of the conduct of the accused, the following narrative seems to be clear from the evidence.
It was 5.30 in the morning. It was dark and a little foggy, although the fog does not appear to have played a significant role. The road surface was dry. The accused had entered and then exited from the BMW car park in Springvale Road, looking to his right and seeing no traffic, as he told Mr Buchalka in the body worn camera footage. He then turned left into the northbound lane of Springvale Road, having veered over to the middle lane to complete that turn.
The accused said that he checked his mirror and then indicated to the right. With the vehicle moving the whole time from the left hand lane, he moved forward and then commenced to make a U-turn across the three northbound lanes of Springvale Road in order to then travel south on Springvale Road. At the time he commenced the U-turn, the right hand indicator of the truck can be seen on the CCTV to be flashing, and he was travelling at about 15 kilometres per hour. There is nothing to suggest that the movements of the vehicle were unpredictable or that there was anything erratic about the way the accused managed the vehicle.
Mr Williams' submission was that, essentially taking the conduct of his client at its highest, it would not be open to the jury to conclude that that conduct amounted to dangerous driving.
Mr Hayward, for the Crown, essentially has argued the contrary of that, submitting that when the vehicle was straight in the left lane there was a clear opportunity for him to look and see the motorcyclist, and the fact that he did not do so, that is did not see the motorcyclist, meant that he was not keeping a proper lookout. I will return in a moment to the inferences that the prosecution say might be open on those facts.
One way for the prosecution to have succeeded in the prosecution of the accused would have been to establish beyond reasonable doubt either that the accused saw the motorcyclist and decided to make the U-turn anyway, which would clearly be dangerous, or that he was not paying adequate attention and the failure to pay proper attention was not merely a momentary lapse, but continued over a sufficiently prolonged period of time that meant he was not properly in control of his vehicle, and was unable to react to traffic conditions and was thus driving in a dangerous manner.[11]
[11]See Georgiou (n 9), [69].
There is no evidence at all to support the first of these alternatives and so that is out of the question. As to the failure to pay adequate attention, on the expert evidence there was only one point at which the accused had the opportunity to see the motorcycle, and that was when he had driven the truck into the left hand northbound lane of Springvale Road immediately prior to commencing the U-turn when the truck was straight in that lane. No witness can say how long that was for, but it was momentary as Mr Hayward has conceded in the course of his submissions. Once he started the U-turn, the angles changed and he had no chance of seeing the motorcycle.
By the time that had happened the evidence indicates that he had looked to his right on leaving BMW and saw no traffic. He said he looked again in his mirrors and saw nothing and then indicated before turning.
Conclusion
In my view, on the most favourable view of the evidence from the prosecution point of view, it would not be open to the jury to conclude that the accused was guilty of dangerous driving causing death.
Assuming that the accused man had the opportunity to see the motorcyclist when his vehicle was straight in the left hand lane northbound on the carriageway of Springvale Road, that opportunity was momentary because the truck was in the course of its turn in swinging left and then executing the U-turn. It was, as I have said, travelling at 15 kilometres per hour. Throughout this manoeuvre, the truck was indicating its intention to turn right. On the same logic the truck must have been visible to the motorcyclist from the time the truck entered the carriageway.
Putting the prosecution case at its highest, they contend for the inference that for a brief moment while the accused man’s vehicle was straight in the left lane of the northbound carriageway, the accused could have seen the motorcyclist and either looked and did not see him or did not look.
It needs to be understood that the period of time in the left hand lane was a period of time during which the vehicle was continuing to move. This particular aspect of the circumstances has from time to time been examined almost as though the truck was stationary. It was not. Its time in the left hand lane was part of an overall manoeuvre. This has been considered in the context of the circumstances which include two previous occasions when the accused looked and did not see the motorcyclist, coupled with his slow speed and the fact that he was indicating to turn right in the form of a U-turn.
In my view, at its highest, the conduct of the accused was a ‘momentary lapse’ on his part,[12] and may possibly have been careless or negligent, but in my opinion it would not be open to the jury to conclude the conduct was dangerous.
[12]See Georgiou (n 9), [69].
There was no evidence of any indifference by the accused to the safety of others. Mr Williams, on behalf of the accused raised the third element of the charge of dangerous driving causing death, but in view of the conclusion I have reached on whether or not the driving was dangerous I do not need to go on and consider that.
I will therefore direct an entry in the court records of not guilty be made, and at 2.15pm I will give instructions to the jury as to the course that has been taken.
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