Georgiou v The Queen

Case [2022] VSCA 172

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2022 0001
EFFIE GEORGIOU Applicant
v
THE QUEEN Respondent

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JUDGES: PRIEST, KYROU and NIALL JJA
WHERE HELD: Melbourne
DATE OF HEARING: 8 August 2022
DATE OF JUDGMENT: 23 August 2022
MEDIUM NEUTRAL CITATION: [2022] VSCA 172
JUDGMENT APPEALED FROM: [2021] VCC 2165 (Judge Lyon)

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CRIMINAL LAW – Appeal – Conviction – Judge alone trial – Dangerous driving causing death – Whether verdict unreasonable or unable to be supported having regard to the evidence – Whether applicant drove dangerously – Application for leave to appeal refused.

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Counsel
Applicant: Mr D Gurvich QC with Ms J McGarvie
Respondent: Mr C Boyce QC with Ms K Hamill

Solicitors
Applicant: Lamplugh McIntosh Lawyers
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
NIALL JA:

Introduction

  1. Following a trial, the applicant was convicted by a judge of the County Court, sitting alone,[1] of a single charge of dangerous driving causing death. She seeks leave to appeal from this Court against that conviction on a single ground that the verdict is unreasonable or cannot be supported having regard to the evidence.[2]

    [1]The applicant’s application to be tried by a judge alone was granted on 17 February 2021, pursuant to s 420D of the Criminal Procedure Act 2009 (‘CPA’).

    [2]CPA, s 276(1)(a). A second proposed ground of appeal contending that the judge had failed to direct himself in accordance with s 41 of the Jury Directions Act 2015 was abandoned. 

  2. On 24 August 2019 at about midday, a car driven by the applicant collided with a pedestrian, Mr Michael Varvodic, who was standing in the middle of Hawthorn Road, Caulfield South. The conditions were fine and the road was dry. The applicant was travelling south within the speed limit. Shortly before the collision, Mr Varvodic began crossing Hawthorn Road, from the eastern boundary having just alighted from a tram. He reached just short of the centreline and waited until northbound traffic was clear to complete his crossing. He stood in the middle of the road, close to the centreline, for around nine seconds with his back to southbound traffic. During those nine seconds, there was no other car driving south between the applicant and Mr Varvodic. The applicant did not see Mr Varvodic until her car was almost upon him. She did not commence to brake until the point of impact. Mr Varvodic died from injuries sustained in the collision. 

  3. The judge gave detailed reasons for his verdict.[3] He concluded that the applicant was inattentive to the roadway ahead of her for approximately nine seconds and that, as a result of her inattention, her driving was dangerous to all members of the public in her vicinity. He concluded that, as a result of the applicant’s prolonged inattention, she caused the death of Mr Varvodic. He said that, apart from prolonged inattention on the part of the applicant, there was no other reasonable hypothesis for the cause of the collision consistent with innocence. 

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Effie Georgiou v The Queen [2022] VSCA 172
Case
[2022] VSCA 172
Decision Date

CaseChat Overview and Summary

The case of Georgiou v The Queen involves an appeal against a conviction for dangerous driving causing death, following a trial before a judge alone. The applicant, who was driving a car, was found to have collided with a pedestrian, Mr Varvodic, resulting in his death. The central issue before the court was whether the verdict of the primary judge was unreasonable or incapable of being supported by the evidence, specifically whether the applicant drove dangerously by failing to pay proper attention to the road and traffic conditions, leading to the collision.

The court considered the evidence presented, which included CCTV footage and expert testimony on speed and stopping distances. The footage showed Mr Varvodic standing in the road for approximately nine seconds before the collision, and the experts' evidence indicated that the applicant's vehicle was travelling at approximately 50 kilometres per hour at the time of impact. The court found that the applicant's failure to see Mr Varvodic, despite having a clear view of him, was due to inadequate attention over a prolonged period, rather than a momentary lapse. This inattention rendered her driving dangerous, as it prevented her from reacting to the presence of Mr Varvodic and avoiding the collision.

In rejecting the appeal, the court held that the evidence established beyond reasonable doubt that the applicant was not paying proper attention, which was the only explanation for the accident. The prolonged period of inattention meant that she was not properly in control of her vehicle and thus was driving dangerously. This conclusion was supported by the lack of any other plausible explanation for the collision, such as an intervening vehicle or distraction. Consequently, the verdict of the primary judge was affirmed, and the appeal was dismissed.

The final orders of the court were that the appeal against conviction and sentence be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The prosecution contended that the evidence excluded the reasonable possibility that the applicant failed to see Mr Varvodic as a result of momentary inattention or mere carelessness. In that context, the prosecution pointed to the protracted opportunity to see Mr Varvodic and the absence of any other distraction or feature of the environment that might have explained why the applicant failed to see Mr Varvodic until either the point of impact or immediately before it.The facts It is convenient to start with some uncontroversial but important facts. What follows may be assisted by the diagram which was in evidence and annexed to these reasons. Hawthorn Road runs in a north south direction. The applicant entered Hawthorn Road by turning left at the intersection with Glen Huntly Road. She headed along Hawthorn Road in a southerly direction. Between Glen Huntly Road and Sycamore Street, Hawthorn Road is straight and relatively flat, with a slight downward gradient from Glen Huntly Road. Between Glen Huntly Road and Sycamore Street, three streets intersect with or cross Hawthorn Road: Larch, Olive and Almond Streets. The fatal collision occurred on Hawthorn Road just north of the intersection with Sycamore Street, and between Almond Street and Sycamore Street. Hawthorn Road has two lanes of traffic in each direction. In the southerly direction in which the applicant travelled, the left hand lane allows for parked cars. Cars parked in the left hand lane do not impede the free passage of vehicles in the right hand lane heading south. The right hand southbound lane is laid with tram tracks. The land use between Glen Huntly Road and Sycamore Street is residential and light commercial or retail. The collision occurred outside the Camden Hotel which occupies the western corner of Hawthorn Road and Sycamore Street. CCTV footage taken from a number of vantage points, to which we will refer in greater detail below, captured the lead up to the collision and the collision. The applicant was driving a 2006 model Peugeot Station Wagon in sound mechanical condition. She was driving within the 60 kilometre speed limit, estimated to be at around 50 kilometres per hour, and at a safe speed having regard to the road conditions. The accident occurred at around midday. The weather was clear and fine, the road dry and environmental factors played no role in the collision. Mr Varvodic was 174 centimetres tall and weighed 91 kilograms. He was wearing a red top and black pants. The expert evidence The evidence in the trial included CCTV footage taken from four cameras attached to premises that were adjacent to the collision. That footage was critical to demonstrate what had happened and provided part of the factual material on which expert evidence was given. CCTV cameras captured Hawthorn Road from a number of perspectives. The footage came from four cameras, two of which were attached to the Camden Hotel, the third to the Thirsty Camel Bottle Shop and the fourth to a private residence on the eastern side of Hawthorn Road.

Evidence

Evidence Before The Court

Mr Varvodic was 174 centimetres tall and weighed 91 kilograms. He was wearing a red top and black pants. The expert evidence The evidence in the trial included CCTV footage taken from four cameras attached to premises that were adjacent to the collision. That footage was critical to demonstrate what had happened and provided part of the factual material on which expert evidence was given. CCTV cameras captured Hawthorn Road from a number of perspectives. The footage came from four cameras, two of which were attached to the Camden Hotel, the third to the Thirsty Camel Bottle Shop and the fourth to a private residence on the eastern side of Hawthorn Road. Before coming to that evidence, and the reconstruction evidence based on it, it is important to refer to some expert evidence as to the speed at which the applicant was driving along Hawthorn Road in the lead up to the collision. Two expert witnesses gave evidence. The prosecution called Detective Senior Constable MacFarlane (‘DSC MacFarlane’) and the defence called Dr George Rechnitzer. Each was qualified to give evidence as to the physical aspects of the collision. Based on the distance between the point of impact and the place at which Mr Varvodic came to rest, DSC MacFarlane estimated that, at the point of impact, the applicant’s vehicle was travelling at a speed of between 40 and 53 kilometres per hour, but more likely between 43 and 51 kilometres per hour. Dr Rechnitzer thought that the point of impact was 2.5 metres further north than that used by DSC MacFarlane and produced an estimated speed at impact of 43 to 54 kilometres per hour. In the result, there was a general consensus that the applicant was travelling at a speed of approximately 50 kilometres per hour at the point of impact. This translates into a speed of 13.9 metres per second. In some of his calculations, Dr Rechnitzer used an average speed of 48 kilometres per hour. Based on the skid marks left on the road, DSC MacFarlane estimated a braking distance of 5.2 metres. Both experts considered that the applicant applied her brakes at or shortly after the point of impact. That does not mean that the applicant did not see or perceive Mr Varvodic until she applied the brakes. Both experts explained that there is a delay between the first perception of a need to take action and the physical response, such as pressing the brake or turning the steering wheel. This is called the driver perception response time (‘PRT’). This is the interval that starts when an object or condition first becomes possible for a reasonably alert driver to detect and ends when the driver initiates a discernible response. It is therefore possible to estimate a total stopping distance or time by combining the braking distance with the PRT. An average PRT (representing the 50th percentile of drivers) is 1.5 seconds. Dr Rechnitzer said that a PRT of two seconds would represent the 85th percentile of drivers. As part of their investigation, police empirically calculated the braking distance of the applicant’s motor vehicle at various speeds. Using those results, together with PRTs of 1.5 and two seconds, Dr Rechnitzer provided the following range of hypothetical braking distances, taking into account both response time and braking distances:•At 40 kilometres per hour – 24 to 30 metres total stopping distance.•At 45 kilometres per hour – 28 to 35 metres total stopping distance.•At 50 kilometres per hour – 32 to 40 metres total stopping distance.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

More generally, the respondent submitted that any driver, driving in the conditions that existed on the day of the incident, and being properly attentive, would have seen Mr Varvodic. The respondent noted that the judge was well aware of the applicant’s case, including the presence of the BMW driver, and that it was open to the judge to reject the analysis that the applicant was distracted by the BMW driver such that her attention was diverted from all other traffic and Mr Varvodic crossing the road. Consideration In our opinion, the evidence established beyond reasonable doubt that the only reason the applicant did not see and react to the presence of Mr Varvodic in the middle of Hawthorn Road was because she was not paying adequate attention. The failure to pay proper attention was not merely a momentary lapse, but continued over a sufficiently prolonged period of time that meant that she was not properly in control of her vehicle, was unable to react to traffic conditions, and was thus driving in a dangerous manner. The applicant’s failure to pay proper attention posed a significant risk to other road users at the time, over and above that which is associated with the ordinary use of a motor vehicle in a suburban setting, and in the circumstances existing at the time of the collision. It resulted in the applicant not seeing Mr Varvodic until her car was upon him and prevented her from taking any effective steps to avoid the collision. The evidence established beyond reasonable doubt that the applicant’s driving was dangerous. For that reason, it was open to the judge to reach the verdict of guilty on the charge of dangerous driving and the ground of appeal must fail. In arriving at that conclusion it is necessary to refer first to the opportunity that the applicant had to see Mr Varvodic. For approximately nine seconds, Mr Varvodic was stationary, facing south, with his back to the north, on the eastern side of the centre line of the road. He was just within the right hand lane facing south. He was wearing a visible top. The weather was fine and clear. The evidence also provided no explanation, apart from driver inattention, that could explain why the accident occurred. Approximately 13 seconds elapsed between the time the last southbound car passed Mr Varvodic and the collision. We infer that there were no southbound cars between Mr Varvodic and the applicant’s car for that 13 seconds. That is, the applicant’s vision of Mr Varvodic was not impeded by any vehicles heading south in front of her. We do not accept that there is a reasonable possibility that there was a car that either crossed the applicant’s path or proceeded to any extent southwards in front of the applicant within that time period. That is because no such vehicle can be seen on the CCTV footage, none was seen by any of the witnesses, and the applicant did not refer to any vehicle impeding her line of vision in her record of interview. We also do not accept that the BMW, or its driver, played any role in the accident. That is so for the following reasons. First, on the analysis of Dr Rechnitzer, the BMW pedestrian crossed in front of the applicant’s path at 12:55:56. The applicant was about 120 metres away from the BMW pedestrian and 160 metres from the point of impact. By the time the applicant’s car approached the BMW, her car was 3.8 seconds from the point of impact. The BMW was in the left hand lane and the driver was also in that lane. His presence in the left hand lane did not require any evasive action on the part of the applicant. She was free to pass unimpeded. Again, the applicant made no mention of anything in her sight that distracted her.