Georgiou v The Queen
[2022] VSCA 172
•23 August 2022
| 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
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.
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.
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.
[3]DPP v Georgiou [2021] VCC 2165 (‘Reasons’).
Having reviewed all of the evidence, we are satisfied that the verdict was open to the judge and he was not bound to acquit the applicant. We are further satisfied beyond reasonable doubt of the applicant’s guilt of the charge. The application for leave to appeal should be refused.
Applicable legal principles
Before coming to the evidence in greater detail, it is convenient to refer to some of the relevant legal principles. Although both parties placed different emphasis on various aspects of the principles, and subject to one matter, there was no significant disagreement between the parties as to their content. That matter concerns the demarcation between dangerous driving and carelessness for the purposes of a charge under s 319(1) of the Crimes Act 1958, a matter to which we shall return.
As noted, the applicant seeks to propound a single ground of appeal: that the verdict is unreasonable or cannot be supported having regard to the evidence.[4] In resolving that ground, the approach that this Court must apply was authoritatively settled in M v The Queen.[5] The approach is no different because the verdict was reached by a judge sitting alone rather than a jury.[6] The central focus in this Court remains on the verdict, rather than the reasons.[7] It is essential that this Court not be seduced into a review of the fact finding undertaken by the judge, but retain its focus on the evidence adduced at trial.
[4]CPA, s 276(1)(a).
[5](1994) 181 CLR 487; [1994] HCA 63.
[6]Dansie v The Queen [2022] HCA 25 (‘Dansie).
[7]Henshaw(a pseudonym) v The Queen [2021] VSCA 356.
As the High Court recently said:
That is because the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.[8]
[8]Dansie [2022] HCA 25, [7] (Gageler, Keane, Gordon, Steward and Gleeson JJ).
In order to acquit its task, this Court must make an independent assessment of whether, upon the whole of the evidence, it was open to the judge to be satisfied beyond reasonable doubt that the applicant was guilty. The fact that the verdict has arisen after a trial is not irrelevant to the appellate function. This Court must take into account the fact that in many cases the jury, or in this case the judge, will have had an advantage over an appellate court in the fact finding process because they will have seen and heard the witnesses give evidence in the trial, and the course of evidence will give them a broad perspective as the trial unfolds that is not easy to replicate in an appellate setting. Where relevant, this Court must also take into account that the jury, or judge, will have accepted the prosecution evidence as credible and reliable. Finally, where the verdict is given by judge alone, the reasons may reveal the issues on which the trial was fought and it may be possible to take findings made by the judge on uncontroversial facts as accurately reflecting the evidence.[9]
[9]Ibid [16].
In this case, having regard to the fact that the primary facts are not significantly in dispute, and the case of the prosecution was circumstantial and depended on inferences to be drawn from those facts having regard to the criminal standard of proof, the judge had at most only a slight advantage over this Court in assessing the evidence.[10] The question of the credibility of the witnesses does not loom large. It follows that a reasonable doubt held by this Court must be a reasonable doubt that the judge should have held.
[10]Ibid [17].
As already observed, the prosecution were not able to point to any of the features that are often associated with dangerous driving, such as excessive speed, the use of a mobile phone or other distraction, or a breach of the road rules. Rather, the prosecution submitted that the Court should infer that the applicant was not paying attention to her surrounds for an extended period of time, causing her to fail to see Mr Varvodic. That inference was said to follow from the unimpeded view over an extended period that the applicant had of Mr Varvodic, and the absence of any other factor that might explain the incident.
In Barca v The Queen,[11] Gibbs, Stephen and Mason JJ said:
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.’[12] To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be “the only rational inference that the circumstances would enable them to draw”.[13]
[11](1975) 133 CLR 82; [1975] HCA 42 (‘Barca’).
[12]Peacock v The King (1911) 13 CLR 619, 634 (Griffith CJ); [1911] HCA 66.
[13]Barca (1975) 133 CLR 82, 104; [1975] HCA 42 citing Plomp v The Queen (1963) 110 CLR 234, 252 (Menzies J); [1963] HCA 44; See also, Thomas v The Queen (1960) 102 CLR 584, 605–6 (Windeyer J); [1960] HCA 2.
In R v Baden-Clay,[14] the High Court summarised the principles in the following way:
For an inference to be reasonable, it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’. Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’. The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.[15]
[14](2016) 258 CLR 308; [2016] HCA 35.
[15]Ibid 324 [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (emphasis in original) (citations omitted).
The elements of the offence of dangerous driving
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’.[16] The objective question is whether the manner of driving has the necessary quality of being dangerous to the public.[17]
[16]McBridev The Queen (1966) 115 CLR 44, 50 (Barwick CJ); [1966] HCA 22 (‘McBride’).
[17]McPherson v Lucas (2008) 181 A Crim R 587; [2008] 49 MVR 429 (‘McPherson’).
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.[18]
[18]McBride (1966) 115 CLR 44, 49–50 (Barwick CJ); [1966] HCA 22.
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.’[19]
[19]Jiminez v The Queen (1992) 173 CLR 572, 579 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ); [1992] HCA 14 (citations omitted) (‘Jiminez’).
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.[20]
[20]Ibid (citations omitted).
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.’[21] 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.
[21]McBride (1966) 115 CLR 44, 51 (Barwick CJ); [1966] HCA 22.
Although dangerous driving may, and often will, be associated with a want of care, negligence is not an element of the offence.[22] As was said in King, particular driving may be undertaken with care and skill but remain dangerous for the purpose of s 319.[23] 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.
[22]King v The Queen (2012) 245 CLR 588, 615–6 [68] (Bell J); [2012] HCA 24 (‘King’).
[23]Ibid 605 [38] (French CJ, Crennan and Kiefel JJ).
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.[24] 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.
[24](2008) 181 A Crim R 587, 592 [20]–[21]; [2008] 49 MVR 429.
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.’[25] 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.
[25]King v The Queen (2012) 245 CLR 588, 608–9 [46] (French CJ, Crennan and Kiefel JJ); [2012] HCA 24.
The applicant submitted that in proving the charge of dangerous driving, the prosecution had to exclude an inference that the applicant ‘failed to exercise the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances’. The point sought to be made was that if it was reasonable to infer that the applicant was driving carelessly or negligently then she could not be guilty of dangerous driving. In making that submission, the applicant relied on the following passages in the reasons for judgment of Corboy J in Geiles v Kelly:
Plainly, proof that an accused person was driving inattentively is not, considered in isolation, sufficient to prove that the accused is guilty of the offence of dangerous driving. A person may drive so inattentively in the circumstances that their manner of driving is dangerous – for example, because of the period over which the inattention persists or the particular circumstances in which the vehicle was being driven. However, it is necessary for the trier of fact to focus on the distinction between negligence and dangerousness – that is especially so where the allegation is that the accused drove inattentively. The trier of fact is required to identify some fact or combination of facts that elevates the inattentive driving beyond negligence – that establishes that the driver was driving the vehicle in a manner that was, in all of the circumstances, dangerous; as was said in Jiminez, some feature that distinguishes the manner of driving as dangerous and not merely careless.
…
As was explained in McBride, the finding that the appellant was inattentive and the fact that her failure to see the rail crossing warning lights was unexplained were not sufficient, even in combination, to establish beyond a reasonable doubt that the appellant was guilty of the offence of dangerous driving. It was necessary to identify some feature besides mere inattention that characterised the manner of driving as dangerous. However, the magistrate did not identify which circumstance or combination of circumstances - what it was about the manner in which the appellant drove her vehicle – that ‘elevate[d] the inattention beyond mere negligence’.[26]
[26](2015) 70 MVR 291, [58]–[69]; [2015] WASC 133 (emphasis added) (‘Geiles’).
With respect, for the reasons we have explained, we do not accept the applicant’s submission that the trier of fact must identify some fact or combination of facts that ‘elevates the inattentive driving beyond negligence’.[27] Nor can we accept that an inference that the applicant drove carelessly is an inference that is necessarily consistent with innocence. On the other hand, a finding of carelessness may not in a particular situation give rise to the risk to other road users that is the hallmark of dangerous driving. The submission risks producing a false dichotomy.
[27]Citing Geiles (2015) 70 MVR 291, [69] (Corboy J); [2015] WASC 133.
The essential inquiry is whether the accused person drove in a manner that is dangerous. As already observed, negligence is not an element of dangerous driving and dangerous driving and negligence are not strict alternatives or mutually exclusive categories. A finding that a driver was negligent is not necessarily exculpatory of a charge of dangerous driving; a factor that makes driving dangerous may be the same thing that makes it negligent.
The prosecution case
The prosecution contended that the applicant’s dangerous driving was constituted by a period of prolonged inattention during which the applicant failed to keep a safe and proper lookout over a period of around 13 seconds, with the consequence that she failed to see Mr Varvodic in sufficient time to avoid the collision. It was said that this inattention constituted a serious departure from the level of care and attention required of the driver in the circumstances.
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.
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.
Dr Rechnitzer also calculated the likely point of first perception on a different basis using on a speed of 48 kilometres per hour, a braking distance of 5.2 metres (based on the skid marks left on the road) and using different PRTs. On the basis of those calculations, Dr Rechnitzer concluded that the applicant first perceived Mr Varvodic standing on the road at between 16 and 23 metres before impact. As will appear, Dr Rechnitzer conjectured that this perception occurred after the applicant had passed a BMW motor car parked in the left hand lane. The BMW car and its driver, who crossed the road in front of the applicant to return to his car shortly before the accident, assumed great significance in the opinion of Dr Rechnitzer.
The relative positons of the applicant’s car, Mr Varvodic and the BMW
Using a time stamp from CCTV footage that the parties accepted was an accurate description of the lapse of time, the period from when Mr Varvodic alighted from a southbound tram and walked to the eastern curb of Hawthorn Road, and the collision can be summarised as follows:
(a)at 12:55:46, Mr Varvodic stepped off the eastern curb of Hawthorn Road and looked right at oncoming southbound traffic;
(b)at 12:55:55, the last in a sequence of southbound cars passed Mr Varvodic and he proceeded to cross Hawthorn Road;
(c)at 12:56:00, Mr Varvodic crossed the right hand southbound lane into the southbound tram tracks and by a second later had stopped in the middle of the tram tracks heading south. He remained in that position, looking south (that is looking towards northbound traffic) until the collision; and
(d)at 12:56:09, Mr Varvodic was struck by the applicant’s vehicle.
Mr Varvodic was thus standing for approximately nine seconds between the tram tracks, just to the east side of the centre line that divides the road, with his back to any cars heading south.
The applicant’s motor vehicle
During the nine seconds Mr Varvodic stood in the middle of Hawthorn Road, the applicant was driving south towards him.
As noted, the last car to pass Mr Varvodic before the collision was at 12:55:55. At the same time, some 13 seconds before impact, the applicant’s car was around 160 metres north of the point of impact, travelling south. That placed her car just to the north of the intersection with Olive Street.
The CCTV footage does not show any southbound car between Mr Varvodic and the applicant’s car for 13 seconds. It follows that, at least from the perspective of other car traffic, the applicant had a clear line of sight towards Mr Varvodic as her car approached.
The footage shows the applicant’s car colliding into Mr Varvodic. There is no noticeable deviation or braking immediately before impact apparent from the footage.
The BMW
As will appear, Dr Rechnitzer hypothesised that the applicant was distracted by another pedestrian crossing the road in front of her car and walking towards and then entering the BMW parked on the eastern curb of Hawthorn Road, facing south.
The BMW was positioned approximately 38 metres to the north of the point of impact. The Thirsty Camel CCTV footage shows a pedestrian, who the applicant says is the driver of the BMW, standing on the western side of the road 13 seconds before impact. Based on the reconstruction by Dr Rechnitzer, the Thirsty Camel footage shows the BMW driver walking across Hawthorn Road at an angle until he is behind the rear of the BMW and then walking alongside the right hand side of the BMW until he opens the driver’s door and enters the vehicle. In the few seconds before he enters his vehicle, the BMW driver is within the left hand lane.
According to that reconstruction, the BMW driver took 14 seconds to cross the road and get to his driver’s side door. He crossed the path of the applicant’s oncoming car at 12:56:00. At this point, the applicant’s car would have been approximately 70 metres further to the north. This means that the applicant’s car would have been approximately 110 metres in distance and nine seconds in time from the point of impact.
Again, according to Dr Rechnitzer, at 12:56:05 (that is 3.8 seconds from impact), the applicant’s car approached the BMW to her left, and the BMW driver was very close to the right rear hand side of his vehicle and walking towards his driver’s door.
In his report, which was tendered in evidence, Dr Rechnitzer said that, assuming an average speed of 48 kilometres per hour with a braking distance of 5.2 metres, and taking into account PRT, the applicant perceived Mr Varvodic approximately 16 to 23 metres before the point of impact. He concluded that this perception occurred at about 13 to 20 metres after passing the BMW. In other words, the sequence involved the BMW driver crossing the road, walking in the left land lane and enter his car, the applicant then passing the BMW and almost immediately perceiving Mr Varvodic.
Dr Rechnitzer explained the potential significance of the BMW and its driver in the following way:
From this analysis and reconstruction of the vehicle’s movements, it would appear that Ms Georgiou’s attention and visual focus had likely been diverted by the actions of the BMW driver crossing in her path and walking adjacent to her vehicle as she passed, and that once she was clear of him and the BMW, it was only at this point, about one second to 1.5 seconds later, that Ms Georgiou’s (sic) likely first saw the pedestrian Mr Varvodic in her direct path, and the imminent collision, and commenced her emergency response approx. 16m to 23m before the POI,[[28]] by emergency braking.
[28]Point of impact.
He returned to the possible implications of the BMW driver later in his report. He said that:
[J]ust under 4s before impact, the BMW driver is walking on the southbound roadway to the driver’s side of his vehicle (intending to enter it). This intention would not have been clear or known to Ms Georgiou as she approaches, and as such, his presence would have taken her attention (and not the pedestrian Mr Varvodic much further ahead) as the BMW driver represented an immediate hazard, being adjacent to her lane 2. This may also explain why Ms Georgiou moves to the right of her lane nearer the road centreline, as her normal habit is to drive to the left of the lane to avoid the tram lines.
…
The critical factor to note is that … Ms Georgiou only passes the BMW less than 3 seconds before impact, and it would appear that after this potential hazard no longer required her attention, her focus was thus only then returned fully to the road ahead. It is then that she ‘suddenly’ sees the pedestrian – which she perceives [as] having just stepped out in front of her.
He concluded that ‘a likely explanation for [the applicant’s] apparent failure to see the pedestrian previously, was that Mr Varvodic was not the primary potential hazard at that time – but rather the BMW driver became conspicuously so’.
We note that DSC MacFarlane was not asked to provide an opinion based on the Thirsty Camel footage.
The applicant’s statement to police and record of interview
Police attended the scene very shortly after the collision. Leading Senior Constable Ellison (‘LSC Ellison’) spoke with the applicant and took notes. In a record of interview taken later that day, the applicant accepted the accuracy of the following summary taken by LSC Ellison:
So you put your name, address, your phone number, your licence number. And, just going over, you said - from Hawthorn Road, turned left into - sorry, from Glen Huntly Road, turned left into Hawthorn Road going to North Road. Travelling at the speed limit, 60 kilometres. Approaching Sycamore Street a man just appeared. ‘He walked straight out onto the road from my left. He was wearing a red jumper and black pants. I don’t know how old he was. He looked elderly. And then I slammed on the brakes. His head went back and hit the windscreen and then he went forward. Was - that was a double hit. And then he went forward onto the road. I ran out of the car, ran to the person. There were others already coming out. We all went there. They asked me if I could call an ambulance. My phone was in my bag in the back seat. I finally found it, ran back with my phone to call an ambulance. I saw that there was a man already speaking with the ambulance, and then everyone started arriving. There were two people who were manoeuvring him into the recovery position. And then they told me to put my hazard lights on so I went, put my hazard lights on, then we went back there and waited for the police and the ambulance. The paramedic checked him and they said he was responsive.’
In his reasons, the judge gave the following summary[29] of some of the applicant’s answers in her recorded interview with police:
[29]Reasons, [69].
65 After getting her car washed, the accused was driving down Hawthorn Road. At the intersection with Sycamore, ‘this man just appeared in front of me. As soon as he appeared, I slammed the brakes as fast as I could but he hit the bonnet and came backwards and then the collision happened.’
66ff Ms Georgiou is familiar with Hawthorn Road. She was travelling on the speed limit. ‘There’s no people coming across the road because it’s no entry’ so she did not expect to have to slam the brakes so suddenly.’
80 Ms Georgiou considered she was ‘driving properly, paying attention.’
88ff Ms Georgiou agreed the sun was possibly coming from behind her.
Ms Georgiou keeps a ‘pretty good eye’ on her speed and does not go above the speed limit.
She was travelling in the left lane southbound but one lane is mostly taken by parked cars so she cannot really use it. She thinks there is a tram stop near the intersection of Sycamore. The car was travelling slightly to the left of the tramline.
109ff Ms Georgiou was travelling in the right lane because there are parked cars further up ‘so you can’t get into that left lane’.
116 Ms Georgiou does not recall seeing any parked cars within 50 metres of the intersection with Sycamore Street.
133ff When asked if there was anything else that could possibly obstruct her view of a pedestrian crossing the road, Ms Georgiou stated there was oncoming traffic in the opposite, northbound direction. Ms Georgiou thought the pedestrian was coming from the tram side, from her left travelling in a westerly direction.
147ff Ms Georgiou first saw the pedestrian when she was pretty close to him. She does not ‘know how much. A few metres.’ He was wearing a red zip jacket and black pants. She thought he was elderly. She saw him suddenly appear and didn’t see him walking. She did not see him step off the curb. She could not see him walking across the whole of the lane. She could see him taking steps but he was ‘obscured by the impact’. She first saw him a few metres before she collided with him. He was facing the pub.
163ff Hawthorn Road is a straight road. Ms Georgiou doesn’t think there are any vehicles directly in front of her. Ms Georgiou can’t consciously say she was ‘distracted’ by oncoming vehicles, but that there were oncoming vehicles. The oncoming vehicles did not draw her attention from her driving. There were two tram tracks and she was trying not to come into contact with them.
175ff Ms Georgiou was looking ahead and looking in her side mirrors. Her phone was in her bag on the back seat. She wasn’t ‘distracted or listening to music or anything’. She did not have to be anywhere at a particular time.
188ff Ms Georgiou would like to think she was driving in a safe manner. When she first noticed the pedestrian, Ms Georgiou slammed the brakes on. She heard a big screech and her brakes ‘like, buckled.’
199ff Ms Georgiou did not attempt to swerve. She thought if she slammed the brakes, she could stop in time. Ms Georgiou is not sure if swerving was a consideration with the tram tracks. She did not overtake any vehicles prior to the collision. She does not think she was following any cars. There were parked cars along Hawthorn Road, but she does not think there were any other vehicles driving in front of her; ‘not right in front’ of her.
212ff The pedestrian had not crossed Hawthorn Road but was in the process of doing so. Ms Georgiou estimates he was 1/3 of the way if you look at the whole width of Hawthorn Road.
217ff LSC Ellison advises CCTV footage showed the pedestrian crossed in a westerly direction and was stationary at the centre line waiting for the northbound traffic to clear. Ms Georgiou stated she ‘wouldn’t say he was at the centre line’. LSC Ellison then put that the pedestrian was standing there for approximately six seconds prior to the collision. Ms Georgiou replied that she did not see that. Ms Georgiou stated she didn’t see him coming from the curb. She can honestly say that she didn’t see any person there and she was not travelling in the centre of the road.
220ff Ms Georgiou was not tired, is in good health, did not fall asleep and was not distracted. It was a sunny day. There were tram tracks on the road, and she tries to avoid them. There were oncoming cars in the opposite direction.
274ff Ms Georgiou was thinking about the pedestrian crossing and was thinking about getting home. She would say she was probably concentrating on the way home.
284 Ms Georgiou’s eyes were checked for the Defence Force in 2014.
291ff It all happened so fast. Ms Georgiou would like to think her driving is safe. She wasn’t expecting a pedestrian to be on the road right at that point there. She is really conscious of speed.
301ff Ms Georgiou used the windscreen wipers to clear the windscreen after the carwash, as water was flicking onto the windscreen. That was going down Glen Huntly Road and as she turned onto Hawthorn Road.
349ff Ms Georgiou agrees she may have been looking at the oncoming cars to the right. She wishes she could tell the police. She took note of her surroundings but was not looking at any particular building. She cannot directly recall everything so there’s nothing she had noted in detail.
354 Ms Georgiou cannot recall any pedestrians on the side of the road, on the left on the footpath.
371ff Ms Georgiou knows that the road is blocked off at Sycamore Street. She does expect people to be coming out of there and turning onto Hawthorn Road.
383 Ms Georgiou acknowledged the points recorded by LSC Ellison when they spoke at the scene of the collision. Ms Georgiou signed the statement.
413 Ms Georgiou was not drinking water or a coffee or anything.
The applicant’s submissions
The applicant submitted that the prosecution case accepted by the judge that the applicant was inattentive for nine seconds was not properly founded on the evidence and that, in order to convict the applicant, it was necessary to exclude two rational inferences that she said were open on the evidence and consistent with innocence:
(a)the applicant drove attentively but reasonably failed to see Mr Varvodic until shortly before the collision; and
(b)the applicant failed to exercise the degree of care and attention that a reasonable prudent driver would exercise in the circumstances, but this was merely negligent or careless driving that did not reach the level of dangerous driving.
The applicant submitted that even if the inference could be drawn that she was driving inattentively, it could not be inferred that the degree of inattention was of such significance to elevate it beyond carelessness or negligence.[30] It was said that it may be impossible to answer the question why the applicant did not see Mr Varvodic sooner and still be unable to draw an inference that she was driving so inattentively as to be dangerous to the public.
[30]Relying on Geiles (2015) 70 MVR 291, [76]; [2015] WASC 133 (Corboy J).
In oral submissions, the applicant relied on seven matters that individually or cumulatively meant that the judge could not exclude a hypothesis consistent with innocence.
First, the applicant submitted that any period of inattention was less than the nine seconds found by the judge. She said this was so for several reasons, including the possibility that the applicant was distracted by the BMW pedestrian walking across her path and the evidence in relation to PRTs. The applicant noted that, taking into account the expert evidence on PRTs, her observation of Mr Varvodic was 1.5 to two seconds before the point of impact.
Second, the applicant submitted that Mr Varvodic was not crossing at a pedestrian crossing or traffic lights at the time of the incident.
Third, the presence of the BMW driver presented a clear hazard to the applicant that required her attention, and for a critical period of time.
Fourth, the applicant highlighted that other traffic was present at the time of the incident. The applicant referred to the report of Dr Rechnitzer, and in particular figure 30, which sets out the relevant area of the incident. The applicant also pointed to the evidence of Ms Sam Nola Payne, a witness to the collision, that ‘the traffic was really heavy’. The applicant said that the evidence did not exclude the reasonable possibility of northbound cars turning right from Hawthorn Road into one of the side streets in front of her.
Fifth, the applicant noted that she was not speeding, was not under the influence of drugs or alcohol and was not sleep deprived at the time of the incident.
Sixth, the applicant referred to the body camera footage and her record of interview where she said she was looking and paying attention, but that she failed to see Mr Varvodic.
Finally, the applicant pointed to her impeccable prior character, particularly her driving history.
The respondent’s submissions
Many of the respondent’s submissions were directed to defending particular factual findings of the judge, which are not pertinent to the ground of appeal.
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.
We are satisfied beyond reasonable doubt that the applicant’s view was clear and unimpeded along Hawthorn Road for around 13 seconds and 160 metres before impact.
Even if, against the evidence, the applicant was distracted at some point by the BMW driver or by other traffic, that possibility does not provide a reasonable hypothesis consistent with innocence. If the applicant was paying proper attention, she could have accommodated both any unexpected moves by the BMW driver and the possibility that a pedestrian was crossing further up the street. A driver, paying attention, cannot just focus on one thing but must take a broader view, continually scanning the oncoming road and paying attention to changing conditions. The existence of a pedestrian in the left hand lane provides no explanation as to why the applicant did not see Mr Varvodic until she did.
The possibility that the applicant was only momentarily inattentive or was distracted by other traffic or the BMW pedestrian at a critical time cannot stand with the evidence and does not explain the accident. That is because of the length of time that Mr Varvodic was stationary at the point of impact and the opportunity that the applicant had to observe him.
It was well open to the judge to reject the applicant’s account, which she gave to police shortly after the collision, that she was paying attention and that Mr Varvodic suddenly appeared in front of her. Rejecting that account does not require any adverse finding as to the applicant’s credibility. Having regard to the nature of the collision and its grave consequences for Mr Varvodic, and having observed the applicant’s record of her interview with police, the applicant was plainly shaken and shocked by what had occurred. Undoubtedly she was trying to piece together what had happened. But her account is inconsistent with the CCTV footage that unequivocally shows that Mr Varvodic was stationary for a period of several seconds before the collision. Neither the applicant’s account, nor her unblemished record and good character, provide any reason to doubt that the collision arose as a result of her prolonged inattention.
In McBride, another case about inattention, Barwick CJ noted that it may be impossible to know why a driver did not see a pedestrian, other vehicle or obstacle, but not be persuaded beyond reasonable doubt that the driver was driving inattentively to the danger of the public at a time so proximate to the impact that it could be concluded that at the time of the impact he was driving in a manner dangerous to the public.[31] This is not such a case. Having regard to all of the circumstances, the only explanation was dangerous inattention to the road ahead.
[31]McBride (1966) 115 CLR 44, 52 (Barwick CJ); [1966] HCA 22.
Whether the period of the applicant’s inattention was the whole of the nine seconds before impact, or a shorter period of time, does not matter. It was certainly sufficiently prolonged as to render the driving dangerous. The evidence excluded beyond reasonable doubt that the applicant was momentarily inattentive but otherwise in appropriate control of her vehicle. It excluded the possibility that she was driving carefully but was distracted by other traffic or the BMW and that is why she failed to see Mr Varvodic. The driving involved a serious breach of the proper conduct of the applicant’s vehicle that was dangerous to other road users.
The application for leave to appeal should be refused.
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ANNEXURE
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