R v Black

[2021] NSWDC 460

District Court

New South Wales

Medium Neutral Citation:

R v Black [2021] NSWDC 460

Hearing dates:

30 August 2021, 31 August 2021

Date of orders:

3 September 2021

Decision date:

03 September 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Verdict - Not guilty

Catchwords:

CRIME - Driving in manner dangerous causing grievous bodily harm

CRIMINAL PROCEDURE - Trial - Judge alone - reasons of trial judge

CRIMINAL PROCEDURE - Trial - Judge alone - proceedings conducted via virtual court with no personal appearances - fundamental principles explained

Legislation Cited:

Crimes Act 1900 (NSW)

Cases Cited:

De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100

Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572

King v The Queen (2012) 245 CLR 588; [2012] HCA 24

Mc Bride v The Queen (1966) 115 CLR 44: [1966] HCA 22

R v Hopton, unreported NSWCCA 8 October 1998

Saunders v R [2002] NSWCCA 362; (2002) 133 A Crim R 104

The King v Coventry (1938) 59 CLR 633

Category:

Principal judgment

Parties:

Steven Leonard Black (the accused)
Director of Public Prosecutions

Representation:

Counsel:
Mr E Anderson (for the accused)

Solicitors:
Morrisons Law (for the accused)
Mr D Coulton, Solicitor Advocate (for Director of Public Prosecutions)

File Number(s):

2020/00002555

judgment

Introduction

1. At about 2PM on Saturday 6 July 2019, near Jamberoo, a blue Mitsubishi Pajero, driven by Steven Black, turned into the path of a white Hayabusa Suzuki motor cycle ridden by Nikolaos Mindzas. In the subsequent collision Mr Mindzas was thrown from his motorcycle into a ditch. He suffered a number of injuries; the most serious involved fractures of the radius and ulna of his right arm and fractures to the femoral shaft of his right leg. Those injuries amounted to grievous body harm.

2. Mr Black immediately called 000 telling them, “I’ve had an accident… I didn’t see …I was just turning slowly.” Later on in the 000 call Mr Mindzas can be heard saying; “He just pulled in front of me....” Exhibit B; Exhibit A - tab 15.

3. On 30 August 2021, at Wollongong District Court, Steven Black was indicted and said he was not guilty of a charge that he drove a motor vehicle in a manner dangerous to another person, whereby his vehicle was involved in an impact as a result of which grievous bodily harm was occasioned to Nikolaos Mindzas: s51A (3)(c) Crimes Act 1900 (NSW).

4. Mr Black had elected for trial by judge alone. That application was not opposed by the Director of Public Prosecutions (DPP).

5. As the trial was conducted without a jury I have a duty, not to just return a verdict but also to expose clearly and, if possible succinctly, my reasoning process. I must include in my decision fundamental propositions, principles of law and any necessary warnings or cautions that apply and, thus, operate to guide my evaluation of the evidence. I am required to summarise the crucial arguments of the parties, formulate the issues for decision and resolve all issues of law and fact that need to be determined so as to justify the verdict reached.

Evidence

6. The matter was conducted using the virtual court system in place during the COVID-19 pandemic, and the current lockdown. There were no personal appearances. No prosecution witnesses were required to give oral evidence. Mr Black did not give or tender evidence. In addition to written statements, the 000 call made immediately after the incident was played in court, as was an edited version of Mr Black’s electronically recorded interview with police: Exhibits B & C.

7. The written brief, tendered as Exhibit A, contains; statements from those at the scene, statements from police who arrived soon after and the transcript of a police interview with an eye witness. A disc containing the photographs in Exhibit A tab 15 was tendered; as the electronic images showed more detail than the paper copies in Exhibit A: Exhibit D.

8. Written expert opinions were given by Doctors and police motor vehicle and accident investigators. No issue was taken either with their expertise or opinions.

Issues

9. There is no issue about who was driving the two vehicles or that there was an impact between them or that as a result Mr Mindzas suffered grievous bodily harm. There is no suggestion Mr Mindzas was speeding or riding badly or negligently. The only issue for determination is whether Mr Black’s manner of driving was dangerous to another person. The point in dispute was succinctly set out in the opening and closing addresses of both counsel.

10. After the evidence was presented and before final submissions I provided counsel with a draft direction on the critical element in dispute: MFI 1. I also provided a brief overview of the relevant law by reference to: The King v Coventry (1938) 59 CLR 633 at 638 & 639; McBride v The Queen (1966) 115 CLR 44; [1966] HCA 22 at [12] to [17]; Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572: King v The Queen (2012) 245 CLR 588; [2012] HCA 24: Saunders v R [2002] NSWCCA 362; (2002) 133 A Crim R 104: R v Hopton, unreported NSWCCA 8 October 1998. No corrections were sought by counsel.

Uncontested facts

11. Just North of the village of Jamberoo, Churchill Street becomes the Jamberoo Road at a T intersection where Jamberoo Mountain Road joins on the Western side. The road has a 50 KPH speed limit. It has single lanes in both directions separated by white double lines. Heading North from Jamberoo the road climbs slightly and follows a moderate curve: Exhibit A - tab16 Photos 1 & 8 - 10. From the North the road is generally level and straight. The view on both sides of the T intersection is not obstructed: Exhibit A - tab1.

12. On 6 July 2019 the weather was partly cloudy but fine. Nether vehicle had any mechanical defects. Neither driver was affected by alcohol or other drugs.

13. The accused was travelling Southbound. He intended to turn right into Jamberoo Mountain Road. He was unfamiliar with the area and had his phone, which had a satellite navigation function, on the passenger seat. He told police he has glanced at it at the intersection a kilometre or two prior to the collision: Exhibit A tab 1 [69] & [117 & [118]; Exhibit B Q & A 308 and 309.

14. He could see vehicles coming from the other way and those stopped at the Jamberoo Mountain Road exit: exhibit A tab 1 [70]. He told police that as he approached the T Intersection there were 3 cars ahead of him. “Um I was gunna turn right at that intersection, I saw the first car out of three in front of me, turn right…and the, um, another two carried forward a bit more, and I believe I, I looked and went to turn myself, and then he was there, I just didn’t see him before that. And we had a collision…:” Exhibit A tab 13 Q & A 66 & 67: Exhibit C.

15. Later in the interview he drew a sketch (Exhibit A - tab 13 last page) and as he did so he said, “I was going this way …with three cars I believe in front of me…so, I would have been the fourth. I watched this motor vehicle turn...and then carry, fu, further forward and then I, I, began to turn, I thought it was clear, I didn’t see* anything:” Exhibit A tab 13 Q & A 103-106. * Note - not in transcript.

16. He later told police he slowed down to turn right into Jamberoo Mountain Road before the collision, “I thought he was just in a blind spot… I just didn’t see him:” Exhibit A tab 1 [70]; Exhibit B Q & A 567 and 568.

17. A driver in Jamberoo Mountain Road was stopped at the intersection intending to turn left and North. He saw the motorcycle coming toward him from Jamberoo. It was not travelling very fast; “just dawdling along:” Exhibit A tab14- Q & A 1 & 88. He was waiting for the motorcycle to pass him, intending to turn behind it, when he heard the crash. He saw the motor cycle slide in front of his car and heard the sound as pieces of the broken motorbike hit his car. He and his wife rendered first aid to Mr Mindzas. She later heard Mr Black say “I’m a rider:” Exhibit A tab12. Other motorists, including a registered nurse and a fireman, stopped and rendered first aid.

18. In the opinion of the Leading Senior Constable Piccles, the officer in charge of the investigation, the collision and impact occurred wholly within Mr Mindzas’ driving lane: Exhibit A tab 1 [94]. He was travelling northbound when the Pajero driven by Mr Black entered his lane and struck his motorcycle on its offside: Exhibit A tab 1 [129]. Mr Mindzas was thrown from his motor cycle. Mr Black immediately brought his vehicle to a stop and called 000 while other motorists rendered assistance to Mr Mindzas: Exhibit A tab 1 [102].

19. It is not in dispute that Mr Black failed to see the motorcycle coming from the opposite direction. It is not in dispute that he drove into the opposing lane intending to turn right and immediately impacted with that motorcycle which was already at the intersection. It is not in dispute that Mr Mindzas had no opportunity to avoid the collision: Exhibit A tab 1 [139] & [140].

Directions

Onus

20. The prosecution must prove each element of the offence beyond reasonable doubt. The accused has no onus of proving anything. I do not act on suspicion. I do not act on what I believe might probably be the case. I can only return a guilty verdict if I have no reasonable doubt the prosecution has proved beyond reasonable doubt each critical element of the offence charged. If the prosecution fail to meet that high onus the accused must have the benefit of any reasonable doubt and I must return a verdict of not guilty on that count.

Circumstantial Evidence

21. An objective assessment of all the evidence is required, particularly on the issue of whether Mr Black’s driving was in a manner dangerous. On the issue of what Black did or did not do and did or did not see as he turned into the oncoming lane the prosecution case is based on circumstantial evidence.

22. Circumstantial evidence is a number of different pieces of evidence from which I am invited to reach a conclusion. The law permits this legitimate mode of proof. In some cases, circumstantial evidence can be thin or ambiguous, in which case I would put no reliance on it. In other cases, the circumstantial evidence can be strong and compelling.

23. I stress one point: I may not, as a matter of law, find the accused guilty unless I am satisfied beyond reasonable doubt that there is no reasonable explanation of the evidence, other than his guilt. I must look at the evidence as a whole, and ask myself the question: “Has the prosecution proved beyond reasonable doubt that there is no reasonable explanation or theory of the evidence consistent with the innocence of the accused?” If it has done so, the proper verdict is guilty. However, if there remains some other reasonably possible explanation of the evidence I must give the accused the benefit of the doubt and find him not guilty.

Elements

24. It is not in dispute that on 6 July 2019 at Jamberoo, Steven Black; drove a vehicle when it was involved in an impact that occasioned grievous bodily harm to Nikolaos Mindzas. Accordingly, the only critical elements that must be proved beyond reasonable doubt is whether:

At the time of impact Steven Black was driving the vehicle in a manner dangerous to other persons.

“Drive in a manner dangerous to other persons"

25. The manner in which a person drives a vehicle includes all matters connected with the management and control of the vehicle when it is being driven, including its speed and its spatial relationship with other vehicles on the road. The manner in which Mr Black drove at the time of, or very closely before, the collision is the critical period I have to examine.

26. Whether or not that manner of driving by Mr Black was “dangerous” will depend upon the facts that I find took place. In deciding whether the driving in the particular circumstances was dangerous I am concerned with the risk of harm arising from the manner of driving, rather than the result of the driving.

27. The manner of driving will be “dangerous” if the Prosecution has established that there has been some serious breach of the proper conduct of a vehicle - so serious as to be, in reality and not merely as a matter of speculation, potentially dangerous to another person or to other persons.

28. This test, as to whether that conduct was dangerous, is an objective one. The Prosecution does not have to establish that the accused knew or realised that he was driving the vehicle in a manner dangerous to another person or persons.

29. The conduct must be judged according to an objective standard which applies to all vehicle drivers. That is what is meant by an objective test.

30. The particular circumstances in which the vehicle is being driven by a person can make the driving potentially dangerous even though the driving may not be dangerous in other situations. Not paying attention to other traffic or pedestrians on a deserted outback road may not be considered to be dangerous even though it may be a breach of the traffic regulations. I need to distinguish examples of road rules breaches and negligent driving from dangerous driving and focus on the degree of risk of harm to other persons that arises from the manner of driving in the particular circumstances.

31. The offence of dangerous driving is established where the driver so seriously fails to properly control and manage the vehicle that he or she creates a real danger of harm to other persons in or around the vicinity of the vehicle far exceeding that which arises simply from the normal use of a motor vehicle. There must be a serious breach of the proper management and control of the vehicle that results in a real danger to others.

32. Casual behaviour or a momentary lapse of attention by a driver, if it results in potential danger to another person or to other persons, is not outside the offence of dangerous driving merely because it is either casual or momentary. But what must be proved beyond reasonable doubt in relation to such conduct is that it amounts to a serious breach of the proper management and control by the accused of the vehicle at the time of the impact and in the circumstances in which the driving occurred.

Evidence

33. The evidence must be considered as a whole. Some of the evidence is direct - some circumstantial. Most evidence was not in dispute – in reality it was how I should interpret that evidence that was contested. In evaluating the evidence at trial, I can use my life experiences, training, and experience as a lawyer and judge. As part of my fact finding process, I can make a value judgments.

The Accused’s version

34. Mr Black gave a brief account to the 000 operator and a detailed account of what he recalled of the incident in his police interview: Exhibit C. By doing so he assumed no onus or responsibility for proving his innocence. I must consider what he said along with all the other evidence.

35. His version to police was not made on oath or tested by cross-examination in court but he was questioned by experienced police. It is not suggested he deliberately sought to mislead anyone. He rang 000 immediately and answered every question asked. In his police interview he appeared to be trying to do his best to answer truthfully and explain to both the police, and himself, why he failed to see the motorcycle until immediately before the collision.

36. I remind myself that an accused never has to prove that he is not guilty. If I do not believe his account in his police interview I should put that account to one side. However:

1. if I believe the accused’s account in his police interview on a critical point I must acquit; or

2. if I do not accept that account but consider it might be true, I must acquit: De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100.

The question will remain: has the prosecution, on the basis of evidence I accept, proved the guilt of the accused beyond reasonable doubt?

Submissions

37. Mr Coulton, Solicitor Advocate, for the Director of Public Prosecutions, reiterated what he said in opening the trial to me. He accepted that he must establish more than a breach of duty to other road users or more than a breach of the road rules. He took up that challenge by carefully taking me through uncontested facts about; the objective circumstances of the roadway, the traffic, the weather conditions and other aspects of the scene. He said the critical point and feature of the driving I must be concerned with was the point Mr Black turned into the oncoming lane, in particular the objective fact that intending to turn into the side road he crossed into the path of the oncoming motorcycle.

38. He said the combination of all those circumstances proved beyond reasonable doubt that at that point Mr Black was driving in a manner dangerous to the public. In particular, he noted the absence of any evidence that Mr Black’s vision was impeded and Mr Black’s own assessment of the level of traffic – he knew there were cars around and had seen cars stopped at the intersection.

39. He said I would conclude that Mr Black, aware as he was of the need for care, turned into the opposing lane. He was aware this act carried a degree of risk that required he keep a proper lookout and that he must not proceed across the oncoming lane until it was safe to do so. He submitted that the objective facts proved Mr Black did not make the careful assessment required of him. If he had done what on any objective analysis was required of him, he would have stopped and waited for the oncoming motorcycle to pass.

40. Mr Coulton accepted Mr Black’s account that he did not see the motorcycle but submitted he would have seen it - if he had done what was required of him. And, that failure meant that at the point he drove into the motorcycle he was driving in a manner dangerous to the public.

41. In response, Mr Anderson accepted the evidence established that as Mr Black turned immediately before the collision he was driving inattentively. He drew my attention to evidence that Mr Black was a regular driver and a motorcycle rider. There was nothing about his driving that day other than the collision that hinted at any impairment of his capacity to drive attentively to the conditions. Accordingly, his failure to perceive the motorcycle was “inexplicable.” It could only be described as an “all too human misjudgement and frailty.”

42. He took me to Mr Black’s accounts in the 000 call and to his police interview to establish that up until the point of the collision he was driving carefully and attentively. He pointed out that Mr Black slowed to make the turn and did not cut the corner. There is no suggestion he was trying to rush across ahead of oncoming traffic.

43. He submitted that I would conclude Mr Black was looking for oncoming traffic before he turned, or, more accurately, as this is a criminal trial; that the prosecution could not prove beyond reasonable doubt he was not. Mr Black, he said, wouldn’t have turned if he had seen the motorcycle. He just didn’t perceive it.

44. Mr Anderson submitted that I would be left with a great deal of difficulty finding the offence proved in those circumstances. He said there were only two options:

1. Mr Black was inattentive and just missed seeing the motorcycle, or

2. Something inexplicable occurred.

45. I proffered a third alternative – That Mr Black simply followed the other car as it turned ahead of him and simply did not look to see what was coming toward him. In response Mr Anderson took me to what Mr Black told the police in his interview and said his assertion he did look cannot and should not be rejected.

46. On the question of whether in the circumstances established here inattention could amount to driving in a manner dangerous, Mr Anderson said it did not rise to that level. He accepted there was a breach of duty to other road users but submitted it was not driving in manner dangerous because there was no failure to look; rather a failure to perceive what in hindsight should have been obvious.

47. He submitted that I should carefully direct myself so as to distinguish between a dangerous driving offence and a breach of the road rules or negligence offence: Saunders v R. He said there was no evidence that Mr Black’s driving up until immediately before the collision indicated any inattention, let alone dangerous driving. Nor apart from the fact of the collision was there any other indication the driving was other than exemplary, let alone dangerous. He submitted that care must be taken, as I should not draw a conclusion of dangerousness from the fact of the collision itself: Mc Bride v The Queen.

Consideration

48. Dangerous driving is based upon the risk of danger posed to other persons and not upon the degree to which the driving falls short of the standard of care owed to other road users: King v The Queen.

49. There is no suggestion that Mr Black was driving dangerously or inattentively before he started his turn into Jamberoo Mountain Road. Although he had been drinking the night before he had slept well. On breath testing no alcohol was detected. He had stopped for lunch shortly before the collision. He had a ‘sat-nav’ function open on his phone but while he had consulted it a few kilometres before the collision, he was not using it or his phone at the time of the collision.

50. The Pajero had a raised suspension and an air freshener dangling from the rear vision mirror but there was nothing about it that could have obscured his forward vision. To the contrary, Mr Black was seated high enough off the road for him to have a good view ahead. There were no mechanical issues with his vehicle. There were no obstacles to him seeing forward toward Jamberoo. He has been driving for many years and has held a motorcycle licence and had ridden motorcycles. He was not taking risks. He was not in a hurry. If he had seen the motorcycle he would not have turned into it. He did not see the motorcycle. But Mr Black did turn out of his lane into the motorcycle coming in the opposite direction. Neither he nor Mr Mindzas, the motorcycle rider, had time to brake or take evasive action before impact.

51. I remind myself that when considering whether the manner of driving was dangerous I look for any quality in manner of driving which, either intrinsically or in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to on or in the vicinity of the roadway. It must be proved beyond reasonable doubt that there was a serious breach of the proper conduct of a vehicle upon the roadway, so serious as to be in reality and not speculatively, potentially dangerous to others: McBride.

52. Mr Anderson submits that there is no direct evidence that Mr Black was driving inattentively; particularly no specific evidence that he was so inattentive that his driving was dangerous to the public. He submits that the prosecution cannot exclude all possibilities consistent with innocence, which begs the question; what possibilities consistent with innocence arise?

53. Mr Anderson proposed two (2) possibilities; I proposed a third (3). With respect, Mr Anderson’s suggestion the prosecution had to negative an inexplicable possibility fails to recognise that the prosecution do not have to negative all possible contingencies; only those that may provide reasonable explanations or theories of the evidence consistent with innocence. An inexplicable cause is not a reasonable inference, theory or conclusion.

54. Section 52A Crimes Act poses an objective test of criminal liability. It need not be proved that the accused possessed a subjective awareness of, and indifference to, the risk created by his or her driving. Here the prosecution alleged two, not necessarily mutually exclusive, possibilities, which, if proved, established beyond reasonable doubt the accused had driven in a manner dangerous to the public:

1. Before he turned across the lane Mr Black did not look to see if there was oncoming traffic.

Or;

2. Mr Black did look but in such a cursory fashion or so inattentively a manner that it was as bad as not looking.

They note that that casual behaviour on the roads and momentary lapses of attention, if they result in danger to the public, are not outside s 52A Crimes Act merely because they are casual or momentary: The King v Coventry (1938) 59 CLR 633 at 638 & 639.

55. The following objective facts have been established beyond reasonable doubt:

1. The weather conditions were good. It was the middle of the day. Sunshine was not a factor.

2. The oncoming lanes were separated by double white lines; indicating that oncoming vehicles should not leave their lane and that it was not safe to do so, even at an intersection without care being taken.

3. Mr Black had a clear view of the road ahead of him in his direction of travel. His view was not obstructed by the cars ahead of him.

4. Mr Black had a clear view of the roadway ahead of him in the oncoming direction.

5. He had adjusted his speed to the speed limit of 50 KPH in accordance with the speed sign and was slowing as he approached the T Intersection.

6. There was no obstruction on or beside the roadway.

7. There was no obstruction to his vision within the vehicle.

8. There was nothing in the vehicle distracting him.

9. Mr Mindzas was riding a white motorcycle North, within his lane, at or below the 50 KPH speed limit

10. Mr Black was not distracted or tired or affected by any drug.

11. He saw the car, three ahead of him, turn right.

12. He saw the other two cars ahead of him carry on South toward Jamberoo.

13. He saw cars on the side Jamberoo Mountain Road stopped at the T intersection.

14. He slowed and turned his car across the opposite lane intending to turn into the road that joined the T intersection.

15. He did not see any oncoming traffic from the South.

16. He turned, crossed into the oncoming lane and drove into the oncoming motorcycle.

17. He would not have turned had he seen the oncoming motorcycle.

56. If Mr Black failed to look for oncoming traffic all the evidence would prove beyond reasonable doubt he drove into the path of the motorcycle in a manner dangerous to the public. To not look in such circumstances would be so serious as to be in reality and not speculatively, potentially dangerous to others.

57. If I cannot conclude beyond reasonable doubt he did not look for oncoming traffic, then the only inference available from the objective circumstances is that the impact occurred because he turned right and drove across the oncoming lane, inattentive to the risk. I must then ask; was there a degree of inattentiveness sufficient to constitute driving in a manner dangerous to the public?

Conclusion

58. I am entitled to be sceptical about whether Mr Black did in fact look for oncoming traffic before he turned right. One available inference is that he saw a car ahead make the turn and simply assumed it was safe to follow. It might also be inferred from his police interview that, shocked by the facts of the collision, he was trying to rationalise how the collision occurred, hence his hesitation when he said “… and I believe I, I looked and went to turn myself, and then he was there, I just didn’t see him before that. And we had a collision…:” Exhibit A tab 13 Q & A 66 & 67; Exhibit B.

59. However to convict on this basis I would need to reject everything he said to police in that interview indicating he was otherwise attentive to traffic on the roads. Even if I do not positively accept his account but consider it might be true, I must give him to benefit of any doubt. Which I do.

60. That then leaves me with these objective facts. Mr Black’s driving that day, and in particular, as he approached the intersection, otherwise complied with all that was required of him. He had slowed to make the turn. He looked but was inattentive as to the presence of a motorcycle coming towards him. Other than that failure there was nothing about his driving into the oncoming lane that demonstrated his driving was dangerous. That failure breached his duty to other road users. That failure was negligent and had terrible consequences for Mr Mindzas. But the risk to others based on the driving at that point has to be assessed. In the all circumstances it has not been proved beyond reasonable doubt that Mr Black’s inattentiveness was so serious that he was, at that point, driving his vehicle in a manner dangerous to other persons.

Orders

61. Accordingly I find Steven Black not guilty.

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Decision last updated: 03 September 2021