R v Duong

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

Criminal Division

S ECR 2021 0291

THE KING	Crown
v
KEVIN DUONG	Accused

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	11, 14, 15, 16, 17, 18 and 24 November 2022
DATE OF JUDGMENT:	20 December 2022
CASE MAY BE CITED AS:	R v Duong
MEDIUM NEUTRAL CITATION:	[2022] VSC 816

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CRIMINAL LAW – Trial by judge alone – Dangerous driving causing death – Whether accused drove dangerously – Secondary issue about causation – Accused found not guilty – Crimes Act 1958 (Vic) s 319(1) – Criminal Procedure Act 2009 (Vic) ss 420E, 420F, 420G, 420ZG – Jury Directions Act 2015 (Vic) ss 3, 4A, 41, 42, 61 – Georgiou v The Queen [2022] VSCA 172; King v The Queen (2012) 245 CLR 588; Jiminez v The Queen (1992) 173 CLR 572; McBride v The Queen (1966) 115 CLR 44.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Grant	Office of Public Prosecutions
For the Accused	Mr A Marshall	Chris McLennan & Co

TABLE OF CONTENTS

Introduction........................................................................................................................................ 3

Procedural history.............................................................................................................................. 4

Principles............................................................................................................................................. 4

Directions............................................................................................................................................ 5

Presumption of innocence........................................................................................................... 5
Standard and burden of proof..................................................................................................... 6
Accused’s right to silence............................................................................................................. 6
Deciding on the evidence............................................................................................................. 6
Assessment of witnesses.............................................................................................................. 7
Expert evidence............................................................................................................................. 8
Good character evidence............................................................................................................ 10
Circumstantial evidence and inferences.................................................................................. 11

The evidence at trial........................................................................................................................ 11

Lay witnesses............................................................................................................................... 12
Police witnesses........................................................................................................................... 13
Expert evidence........................................................................................................................... 13
Prosecution experts............................................................................................................... 13
Defence experts..................................................................................................................... 14
Exhibits......................................................................................................................................... 14

The facts............................................................................................................................................. 15

The accused.................................................................................................................................. 15
The alleged victim....................................................................................................................... 15
Loading David into the Maxi Cab............................................................................................ 16
Returning from St Albans.......................................................................................................... 18
The accused’s account of his movements prior to the collision........................................... 18
The scene of the collision........................................................................................................... 19
Traffic signal operation.............................................................................................................. 20
Overview................................................................................................................................ 20
VicRoads materials............................................................................................................... 21
Phase diagrams...................................................................................................................... 22
Prosecution case.................................................................................................................... 23
Alleged offending by the accused............................................................................................ 25
Events immediately preceding the collision according to Mr Singh............................. 25
Events immediately preceding the collision according to the accused........................ 28
Events immediately preceding the collision according to Maxi Cab passengers........ 30
Events immediately preceding the collision according to Ms Costabile...................... 32
Nature of the collision................................................................................................................ 34
Police investigation..................................................................................................................... 35
At the scene of the collision................................................................................................. 35
Subsequent to the collision.................................................................................................. 38
Record of Interview and conversations at the scene........................................................ 39
CCTV footage from the Maxi Cab............................................................................................ 41
Photographs taken by S/C Cox................................................................................................ 46
D/L/S/C Hardiman’s evidence............................................................................................... 46
Injuries sustained by David....................................................................................................... 53
Conclusion on medical expert evidence of Dr Bouwer and Dr Collins........................ 59
Joint expert report and the evidence of Mr Hardy and Mr Carter...................................... 59
Conclusion on expert evidence of Mr Hardy, Mr Carter and D/L/S/C Hardiman.. 63
Character evidence received from Ms MacGregor................................................................ 63
Changes to the traffic signals following the collision............................................................ 64

Prosecution case............................................................................................................................... 65

Defence case...................................................................................................................................... 66

Legal principles................................................................................................................................ 66

Elements of the charge............................................................................................................... 66
Element 1: ‘Driving a motor vehicle’.................................................................................. 67
Element 2: ‘Driving dangerously’....................................................................................... 68
Element 3: ‘Causing death’.................................................................................................. 70
Findings as to the elements of the charge................................................................................ 71
The issue of causation........................................................................................................... 77

Conclusion......................................................................................................................................... 77

Verdict................................................................................................................................................ 77

Annexure A....................................................................................................................................... 79

HER HONOUR:

Introduction

On the evening of Saturday 20 July 2019 at approximately 8:40pm, the accused, Kevin Duong (‘Mr Duong’), was involved in a motor vehicle accident with a Maxi Cab at the intersection of Blackburn and Wellington Roads in Clayton.[1] The alleged victim, David Dang (‘David’), was sitting in a wheelchair restrained at the rear of the Maxi Cab. As a result of the collision, David sustained life-threatening injuries and died in hospital early the following day.
[1]For illustrative purposes, a police diagram of the collision site has been included in these reasons as ‘Annexure A’.

On 9 March 2021, Mr Duong was committed to stand trial in the County Court of Victoria for the offence of dangerous driving causing death, contrary to s 319(1) of the Crimes Act1958 (Vic) (‘Crimes Act’).[2]
[2]See my reasons for judgment in respect of the judge alone trial application: DPP v Duong (Judge-alone ruling) [2022] VSC 635 (‘Judge-alone ruling’).

An indictment in relation to the above-mentioned charge was filed by the prosecution. The wording of the charge on the indictment[3] is as follows:

The Director of Public Prosecutions charges that Kevin Duong at Clayton on the 20^th July 2019 by driving a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances of the case caused the death of David Dang.

[3]Also laid pursuant to s 319(1) of the Crimes Act 1958 (Vic) (‘Crimes Act’).

It is this charge which is the subject of my consideration and verdict.

In the present case, the prosecution did not seek a verdict on any alternative offence in the absence of proof of the charge on the indictment. Some summary offences were laid at the same time as the indictable charge, however it is not necessary for me to discuss those summary matters here beyond acknowledging their concurrent existence.[4]
[4]The accused was also charged with careless driving, pursuant to s 65 of the Road Safety Act 1986 (Vic), and failing to give way when turning at an intersection with traffic lights, pursuant to reg 62 of the Road Safety Road Rules 2017 (Vic). These summary offences were subsequently transferred to the County Court of Victoria at Melbourne on 9 March 2021. I will invite submissions from the parties as to these summary offences following delivery of this judgment.

The accused pleaded not guilty to the charge upon arraignment, and submits that the elements of the charge cannot be proven beyond reasonable doubt. The accused contends that his manner of driving cannot be said to have been ‘dangerous’, and that it cannot be established that the dangerous driving caused the death of David.

Procedural history

On 9 March 2021, the accused was committed to stand trial in the County Court of Victoria. Due to the backlogs caused by the COVID-19 pandemic, the matter was transferred to the Supreme Court of Victoria at Melbourne by order of Justice Hollingworth dated 27 October 2021.

On 12 October 2022, the accused applied for a trial by judge alone pursuant to s 420E(2)(b) of the Criminal Procedure Act 2009 (Vic) (‘CPA’). That application was not opposed by the prosecution, and was duly granted on 24 October 2022.[5] The factual and procedural background preceding the present judgment is set out more fully in the reasons accompanying the Court’s ruling acceding to the judge alone application, and is not otherwise repeated here.
[5]Judge-alone ruling (n 2).

The trial took place before me at Melbourne between 11 and 24 November 2022. A number of experts were called during the course of proceedings, as is set out more fully below. The Court did not, strictly speaking, hear that expert evidence consecutively, due to competing commitments affecting the relevant experts.[6] A view of the intersection where the collision occurred was conducted under the Court’s supervision on 17 November 2022.[7]
[6]See generally Criminal Procedure Act 2009 (Vic) (‘CPA’) ss 232A(1)(d) and 232A.
[7]On that occasion, the accused was granted leave by the Court not to attend.

Principles

Division 3 of Part 9.2 of the CPA guides my verdict and judgment in a trial by judge alone in this Court, and relevantly provides as follows:

420F Verdict in trial by judge alone
(1)In a trial by judge alone, the trial judge may make any decision that could have been made by a jury.
(2)A decision made by a trial judge as described in subsection (1) has, for all purposes, the same effect as a verdict of a jury.

420G   Judgment in trial by judge alone
In a trial by judge alone, the judgment must include—
(a)       the principles of law applied by the trial judge; and
(b)       the facts on which the trial judge relied.

It therefore falls to me to consider all of the evidence and the facts in this case. I must then apply the law to the facts as I have found them in order to determine whether the prosecution has established, beyond reasonable doubt, that the accused is guilty of the offence with which he has been charged.

Directions

Pursuant to s 420ZG of the CPA, s 4A of the Jury Directions Act 2015 (Vic) (‘JDA’) applies to this case, and relevantly provides as follows:

4AApplication of Act to criminal proceedings without juries
…
(2)The court’s reasoning with respect to any matter in relation to which Part 4, 5, 6 or 7 [of the JDA] makes provision—
(a)must be consistent with how a jury would be directed in accordance with this Act; and
(b)must not accept, rely on or adopt—
(i)a statement or suggestion that this Act prohibits a trial judge from making; or
(ii)a direction that this Act prohibits a trial judge from giving.

At the outset of these reasons, I will refer to the general directions given in a criminal trial which I must apply as a judge sitting alone in this matter.

Presumption of innocence

In all criminal trials, including those heard and determined by a judge sitting alone, an accused is presumed innocent unless and until their guilt is proved upon admissible evidence adduced by the prosecution.[8]
[8]See, eg, Jury Directions Act 2015 (Vic) s 3(g) (‘JDA’).

Standard and burden of proof

Regarding the charge placed before the Court, the prosecution must establish each element of the offence (and, therefore, the offence itself) beyond reasonable doubt. Proof beyond reasonable doubt is the highest standard known to our law; proof to any lesser extent must result in a verdict of not guilty being returned. The prosecution must also prove the absence of any relevant defence to the same standard.[9]
[9]Unless an enactment otherwise provides: ibid s 61.

If there is any reasonable hypothesis or alternative view of the evidence consistent with the accused’s innocence, I must find him not guilty.

Accused’s right to silence

Since the prosecution bears the onus of proving the accused’s guilt of the offence with which he has been charged, the accused is under no obligation to give or call evidence in answer to that charge. In this case, the defence chose to call evidence from experts Mr Jack Alexander Hardy (‘Mr Hardy’) and Dr Richard Byron Collins (‘Dr Collins’), as well as character evidence from Ms Caitlin Marian MacGregor (‘Ms MacGregor’). The accused otherwise chose not to give evidence himself. The fact that the accused did not testify cannot be the subject of an adverse inference against him, and does not constitute an admission made by him. It does not represent evidence against him, and must not be used to fill gaps in any evidence adduced by the prosecution. It does not strengthen the prosecution case. I must not speculate about what the accused’s evidence might have been, had he given any evidence in court.[10]
[10]Ibid ss 41, 42.

Deciding on the evidence

In deciding this case, my verdict must be based only on the admissible evidence presented to the Court.[11] I must approach the case with an open mind, not favouring one side or the other. I must not (and have not) had regard to any outside information, and I have only had regard to the evidence adduced in this trial. In this case, a view of the intersection was conducted with counsel under the Court’s supervision. I summarised what we saw on the view in open court the following day.[12] Views are evidence in the case, and I may draw any reasonable inference from what is seen, heard or otherwise noticed during that view.[13]
[11]Ibid s 3(d).
[12]Transcript of Proceedings, DPP v Duong (Supreme Court of Victoria, S ECR 2021 0291, Jane Dixon J, 11, 14, 15, 16, 17, 18, 24 November 2022) 482–4 (‘TS’).
[13]Evidence Act 2008 (Vic) s 54.

In this case, the accused participated in a record of interview with police, and a transcript was provided when the interview was played in court.[14] I direct myself that the transcript of the accused’s record of interview is an aid only to the evidence of his video- and audio-taped interview, and must not be treated as a substitute for the words actually spoken during that interview.
[14]See Exhibit P26 (Record of Interview of Kevin DUONG on 28 April 2020 together with accompanying transcript) (‘Exhibit P26’).

The opening and closing addresses of counsel are also not part of the evidence in the trial.

Assessment of witnesses

In deciding the facts of the case, I must assess the credibility and reliability of each witness, decide whether I accept or reject their evidence, and determine how much weight I attach to their evidence. From a fact-finder’s perspective, the credibility of witnesses is divisible inasmuch as I may accept some, all, or none of their evidence. Of course, I must only base my verdict on evidence I consider to be credible and reliable. I must be careful when considering a witness’s demeanour during their evidence, as giving evidence can be a stressful experience. People can and do appear and react differently. Nevertheless, it remains for me to decide whether each witness is telling the truth and/or whether they correctly recall the facts about which they are giving evidence.

Regarding the assessment of a witness’ credibility, one factor I may consider is the consistency of their account. If I accept that a witness made a prior inconsistent statement, I may consider any explanations for why they did so. There are two ways in which I can use evidence of prior inconsistent statements. First, I can use the contents of the previous statement as evidence in the case. Second, if I find that the witness’s evidence is inconsistent with their account in court, then I can use that statement in assessing their credibility.

In making my decision about the evidence from each witness, I must consider not only the witnesses’ testimony, but also the exhibits tendered at trial, and the aforementioned view conducted with the parties. As the trier of the facts, I must consider all of the evidence placed before me in the case, and attribute each part thereof the importance that I think it deserves, in order for me to determine what the true facts are.

Expert evidence

Medical evidence about the alleged victim’s cause of death was proffered by Dr Heinrich Bouwer (‘Dr Bouwer’) for the prosecution, and Dr Collins for the defence. Ultimately, there was little divergence between the opinions of Dr Bouwer and Dr Collins. Moreover, any such differences were minor in nature, and primarily related to post-collision issues of factual causation and the cause of death. The issue of whether or not the accused’s driving was ‘dangerous’ within the meaning of s 319 of the Crimes Act largely fell outside the scope of the medical evidence.

Collision reconstruction evidence was adduced from Detective Leading Senior Constable Michael Anthony Hardiman (‘D/L/S/C Hardiman’) for the prosecution, and Mr Hardy for the defence. Mr Rowan Carter (‘Mr Carter’) also provided expert evidence for the prosecution with respect to the seatbelt and wheelchair restraint systems in the Maxi Cab. Whilst all three experts were agreed inasmuch as speed was not a factor contributing to the collision, and it was not a ‘high impact’ motor vehicle accident, there was some dispute as to whether the speed and velocity of each vehicle could be accurately reconstructed. Unlike Mr Hardy, D/L/S/C Hardiman was of the opinion that the speed of each vehicle could not be reliably reconstructed on the information that was available.

There were also some differences of opinion between D/L/S/C Hardiman, Mr Carter and Mr Hardy about the way in which forces from the collision impacted David, and the ratio of longitudinal and lateral forces impacting upon the Maxi Cab. This evidence was led as being relevant to whether the impact from the collision was the substantial and operating cause of David’s death, or whether the collision impact was merely ancillary to the improper fastening of David’s seatbelts[15] and not legally causative of David’s death. This matter of causation and the evidence touching upon it (including differences of opinion between experts) only arises for consideration if I find, on the evidence, that the accused’s driving was ‘dangerous’ to the public in all the circumstances of the case.
[15]I explain this in more depth later in these reasons.

I will say more about the precise boundaries of any expert witness disputes when I come to examine the evidence of D/L/S/C Hardiman, Mr Hardy and Mr Carter below. I note, however, that in the prosecution’s closing address, it was submitted that there was ultimately not much difference between the experts.[16]
[16]See, eg, TS (n 12) 573 [1]–[2] (prosecution); see also TS (n 12) 600 [19]–[23] (defence).

Regarding unchallenged expert evidence, as the trier of the facts I am not required to accept an expert’s opinion, even where it was not challenged by the opposing party. Although the experts called are experts in their stated fields, like any other evidence their opinions are pieces of evidence which I am entitled to accept or reject.

When assessing each expert’s opinion, I am obliged to consider factors such as how well-qualified the expert is; whether the expert strayed outside their area of expertise, or just gave evidence of their understanding of certain factual matters (rather than applying expert knowledge to the subject at hand). I must also consider the overall objectivity of any expert witness called by either party.

Subject to these kinds of considerations, however, I am required to have good reason for not accepting unchallenged expert evidence.[17] Where the evidence of competing expert opinions is in conflict, I am entitled to prefer the evidence of one expert over another, based on my assessment of the expert opinion I consider most persuasive.[18]
[17]Where there is unanimous agreement amongst expert witnesses, I may only reject their evidence for the following reasons: if the facts underlying the opinion are not present; if the process of reasoning that led to the opinion is unsound; or if there is some other factor casting doubt on the validity of the opinion: Taylor v The Queen (1978) 45 FLR 343; R v Kotzmann [1999] 2 VR 123; R v Hilder (1997) 97 A Crim R 70; R v Klamo (2008) 18 VR 644; R v Matheson [1958] 1 WLR 474.
[18]Velevski v R (2002) 76 ALJR 402.

Good character evidence

I heard evidence in this case that the accused is a person of good character, as is outlined more fully below. Relevantly, the accused had not recorded any prior criminal or road traffic convictions before the collision; he had also not recorded any such convictions since the collision, and has never attracted a single demerit point.

Further, there was positive evidence adduced by the defence from Ms MacGregor as to the accused’s usual careful manner of driving, as observed by her on past occasions.

If I accept this evidence, and find that the accused is a person of good character, there are two ways in which I can then use this fact:

(a) First, I can use it when assessing the credibility of the accused’s answers in his record of interview. A person who is of good character is generally thought to be more trustworthy than other people, and I may be less willing to accept the prosecution’s evidence than if the accused were not a person of good character. In particular, evidence of an accused’s good character may be relevant to the credibility of his statements made out of court;[19] and

(b) Second, I can use it when determining the likelihood that the accused committed the offence with which he has now been charged. It is generally believed that a person of good character is less likely to commit a criminal offence. I may therefore be less willing to accept the prosecution’s allegations, than if the accused were not a person of good character. This does not mean that I must find the accused not guilty if I accept that he is a person of good character. The fact that a person is of good character cannot change proven facts, it can only help me to assess whether or not those facts have been proven. Further, a person who has previously been of good character – including a person with an unblemished driving record – can of course still commit a crime for the first time.[20]

[19]See, eg, R v Vye [1993] 1 WLR 471; R v Vollmer [1996] 1 VR 95; Melbourne v R (1999) 198 CLR 1.

[20]Judicial College of Victoria, Victorian Criminal Charge Book (online at 14 December 2022) (‘Criminal Charge Book’) ‘4.3.2 – Charge: Specific Good Character Evidence’.

A good character direction must be given where the evidence has an immediate and obvious connection with an issue in the case.[21] As the character evidence proffered in this case related directly to the accused’s manner of driving on other occasions, including in the same locality as where the collision ultimately occurred, I consider the requisite ‘immediate and obvious connection’ is clearly established, and I therefore consider such evidence to be relevant and helpful in my determination of this case.
[21]Ibid ‘4.3 – Character Evidence’ [25], citing Melbourne v R (1999) 198 CLR 1.

Circumstantial evidence and inferences

The prosecution case relies on both direct evidence and circumstantial evidence.[22] One is not stronger or weaker than the other. I must be careful, however, when making inferences or drawing conclusions from circumstantial or indirect evidence. I must consider whether any inference I seek to draw rests properly on the facts upon which it is based. I must consider all of the evidence in the case, and only draw reasonable conclusions based on the evidence that I do accept. I may only convict the accused if satisfied that his guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect. As noted, if there is another reasonable view of the facts consistent with the accused’s innocence, then the prosecution will not have proven his guilt beyond reasonable doubt, and I would be obliged to acquit him.
[22]See JDA (n 8) s 3(h).

At the conclusion of the evidence at trial, counsel did not otherwise substantively address me on the directions and principles to which I should have regard in reaching my verdict. Further to the matters itemised above, I will refer to any additional directions of law upon which I direct myself as they arise in the course of delivering these reasons for judgment.

The evidence at trial

A number of witnesses were called during the trial. Their evidence is set out in detail in the section that follows.[23]
[23]Witnesses were called in the following order: D/L/S/C Hardiman (prosecution); Mr Carter (prosecution); Mr Hardy (defence); Dr Bouwer (prosecution); Dr Collins (defence); VL Dang (prosecution); Ms Phan (prosecution); S/C Cox (prosecution); Ms Costabile (prosecution); C/Tuckerman (prosecution); D/Sgt Williams (prosecution); Ms MacGregor (defence). In addition, the statement of Thi Tung Dang was read into evidence by the prosecution.

As noted, the accused did not give evidence at trial. His account of the circumstances of his driving and of the collision is drawn from statements he made to police at the scene of the collision, and his formal record of interview. I have already directed myself in accordance with s 41 of the JDA regarding the accused’s election not to give oral evidence in court. I have also warned myself regarding the manner in which I should treat the transcript of the accused’s record of interview.

Regarding any alleged admissions by the accused, it will be necessary for me to decide firstly whether I accept that the accused did in fact make the alleged admission, and secondly whether I accept that the alleged admission was truthful and reliable. In this case, there was no dispute that the relevant representations were made by the accused nor was it in question that he was trying his best to give a truthful account. As will be discussed later in these reasons, however, he was quite shaken at the scene and regarding his later statements in his record of interview, his ability to recall all the details of the collision was affected by the passage of time between the collision and his formal interview.

Lay witnesses

Lovejeet Singh (‘Mr Singh’), who was the driver of the Maxi Cab involved in the collision, gave oral evidence at trial.[24]
[24]On 16 November 2022.

Van Luong Dang (‘VL Dang’) (being David’s father) and Lien Huynh Thi Phan (‘Ms Phan’) (being David’s mother) gave oral evidence at trial via an interpreter.[25] The evidence of Thi Tung Dang (being David’s aunt) was contained in her police statement, and was read in by agreement between the parties.[26]
[25]On 16 November 2022 (via remote witness facility).
[26]On 17 November 2022.

Anna Costabile (née Borovska) (‘Ms Costabile’), who witnessed the collision, gave oral evidence at trial.[27]
[27]On 17 November 2022.

Ms MacGregor, a fellow student known to the accused, gave oral evidence at trial on behalf of the defence as to the accused’s good character.[28]
[28]On 18 November 2022 (via video link).

Police witnesses

Senior Constable Andrew Cox (‘S/C Cox’) and Constable Bradley Tuckerman (‘C/Tuckerman’) both attended the scene of the collision on the evening in question, and both gave oral evidence at trial.[29]
[29]On 16 and 17 November 2022 respectively.

The informant in this case, Detective Sergeant Darren Williams (‘D/Sgt Williams’), also gave oral evidence at trial.[30]
[30]On 17 and 18 November 2022.

Expert evidence

As already indicated, I heard evidence from expert witnesses called by both the prosecution and the defence. Each of those witnesses established that they had specialised knowledge and training allowing them to give their opinions about matters within their field of expertise. No disputes were raised by opposing counsel as to any of the expert witnesses’ areas of specialisation.[31]
[31]Defence counsel did, however, challenge the appropriateness of Mr Carter commenting on accident reconstruction, and the witness was reminded to remain within his stated area of expertise (being vehicle certification and inspection). I note that the final version of Mr Carter’s expert report dated 3 March 2022 (which became Exhibit P9) referred to a week-long accident investigation and reconstruction course, which he attended in 2012. In his report, Mr Carter had disclaimed matters pertaining to an investigation of the collision, inter alia, from the scope of his report. See, eg, TS (n 12) 89–91, 147–50, 611–12.

Prosecution experts

The prosecution called the following expert witnesses:

(a) D/L/S/C Hardiman, a reconstruction expert with the Victoria Police Collision Reconstruction and Mechanical Investigation Unit[32];

(b) Mr Carter, a mechanical engineer with qualifications in vehicle certification and inspection;[33] and

(c) Dr Bouwer, a forensic pathologist who has been employed at the Victorian Institute of Forensic Medicine (‘VIFM’) for approximately 13 years.[34] He has previously given evidence in trials and inquests throughout Victoria in the Coroners Court, the County Court and the Supreme Court.

[32]D/L/S/C Hardiman gave oral evidence on 11 and 14 November 2022.

[33]Mr Carter gave oral evidence on 14 and 15 November 2022.

[34]Dr Bouwer gave oral evidence on 15 November 2022.

Defence experts

The defence called the following expert witnesses:

(a) Mr Hardy, a forensic engineer with expertise in crash reconstruction, vehicle inspection, mechanical design and mechanical failure analysis;[35] and

(b) Dr Collins, a forensic pathologist who has worked in the field of forensic pathology since 1985.[36] He has lectured and published academic articles in that field, as well as giving evidence in court proceedings.

[35]Mr Hardy gave oral evidence on 15 November 2022.

[36]Dr Collins gave oral evidence on 15 November 2022.

Exhibits

The prosecution tendered 29 exhibits (labelled P1 through to P29), and the defence tendered four exhibits (D1 through to D4). The exhibits that attracted more focus during the viva voce evidence at trial and in closing arguments were:

(a) Exhibit P1, being an aerial image of the collision scene;

(b) Exhibit P2, being a red folder containing 26 photographs taken by police members S/C Cox and D/Sgt Williams;

(c) Exhibit P3, being CCTV footage from inside the Maxi Cab at the time of the collision;

(d) Exhibit P8, being Figure 3 derived from page 6 of the joint expert report of Mr Carter and Mr Hardy;

(e) Exhibit P12, being a bundle of screenshots from the above-mentioned Maxi Cab CCTV footage prepared by Mr Carter;

(f) Exhibit P25, being a VicRoads report of traffic light sequences at the intersection of Blackburn and Wellington Roads on 20 July 2019; and

(g) Exhibit P26, being a police record of interview with the accused on 28 April 2020 with the accompanying transcript.

The facts

There was no real dispute between the parties as to the factual circumstances set out below, except where otherwise indicated. I have incorporated certain factual findings, and findings as to the credit of witnesses, in the course of the ensuing narrative.

The accused

The accused, Mr Duong, was 25 years of age at the time of the collision. He lived with his parents in Noble Park, and was the holder of a probationary driver’s licence.[37]
[37]The prosecution case was originally put on the basis that the accused held a full driver’s licence: see, eg, TS (n 12) 6. VicRoads certificates evidencing the accused’s probationary status were subsequently tendered during the course of trial: see, eg, TS (n 12) 493–4.

At the time of the collision, the accused was driving his parents’ silver Holden Astra hatchback (‘Holden Astra’) bearing the registration number ‘WHP 111’.

The alleged victim

David, who died from injuries sustained during the collision, was 18[38] years of age at the time of his death.[39]
[38]Both parents testified at trial that David was aged 19 at the time of his death; however, Dr Bouwer (who performed a post-mortem examination on David, and had access to David’s clinical records) reported that he was 18 at the time of death.
[39]Exhibit P14 – Inspection Report of Dr Henrich BOUWER dated 4 September 2019 (‘Exhibit P14’).

David lived with his family in Springvale. He was diagnosed with the degenerative neuromuscular condition Duchenne Muscular Dystrophy (‘DMD’) when he was 5 years old, which resulted in him being wheelchair-bound from early childhood, and rendered him reliant on his family and others for his day-to-day care.

As a result of his DMD, David often relied on wheelchair-adapted Maxi Cabs to travel within the community. He often called upon Maxi Cab driver Mr Singh to drive him. Mr Singh obtained specialist accreditation to drive Maxi Cabs in 2017. On the day in question, as had happened on other occasions, David’s wheelchair was placed behind the driver’s compartment of the Maxi Cab. The wheelchair was secured by four restraints connecting to the floor of the Maxi Cab. It was not disputed that the restraints used to secure the wheelchair to the floor of the Maxi Cab were not of sufficient strength for the combined weight of the electric wheelchair and David’s weight; but it was also not suggested that the restraints anchoring the wheelchair to the floor of the vehicle had failed.[40]
[40]See, eg, TS (n 12) 544.

It was also not in dispute between the parties that the Maxi Cab seatbelt provided for wheelchair occupants travelling in the Maxi Cab was not properly fastened around David prior to the collision. The undisputed evidence was that, for reasons of comfort, David was in the habit of asking Mr Singh to place the sash component of the Maxi Cab seatbelt under his arms when placing it on him, and that on the day in question Mr Singh complied with that request. At the time of the collision, the lap belt was not in place at all, and the sash belt that was meant to connect to the lap belt was worn horizontally across David’s upper body instead of being correctly positioned from the neck down across the chest and joined to the lap belt. As will be seen from the narration of the evidence below, however, Mr Singh initially told police that David had the lap and sash belts fitted and the entire mechanism was correctly locked in. I will say more about this matter later in these reasons.

Loading David into the Maxi Cab

On Saturday 20 July 2019, David had booked Mr Singh to take him to a family gathering in St Albans.

Travelling with David were his mother Ms Phan, his father VL Dang, and his aunt Thi Tung Dang.

Mr Singh picked up David and his family from their home in Springvale around midday. There was evidence that, prior to leaving the house, David’s father fastened the wheelchair seatbelt (affixed to David’s wheelchair) around David’s waist.[41]
[41]TS (n 12) 301–2.

Mr Singh gave detailed evidence about how David’s wheelchair was driven onto the Maxi Cab ramp and then driven forwards into position, and how the wheelchair restraints (often referred to in evidence as ‘tiedowns’) were used to keep the wheelchair secure.

Mr Singh described the process of loading David into the Maxi Cab as follows:

Yeah, so I just open the hoist and just asked David to come to the ramp, and once he was inside, this is how we normally do, so once he's inside, we just put the machine and the seatbelt, yeah.[42]

[42]Ibid 360.

He explained that once David operated his electrical wheelchair to drive forward into position in the Maxi Cab, he secured the wheelchair restraints to the floor: two at the front, and two at the back. He next put the seatbelt onto David:

So the next thing we do is we put the restraint, so there’s four – two at the front, two at the back … It is ah, there is point on the wheelchair, so two point at the front, two at the back to secure the wheelchair … Yeah, so we do the seatbelt, lap and the chest. So I just put the seatbelt, I just lift his – because the thing is he was not able, he was not able to move his arms so basically I was the one who put first his right arm up and bring the belt to the left. The point connected to the floor.[43]

[43]Ibid 361.

In effect, Mr Singh explained that he pulled the belt down from the right-hand side of David, and it was then connected to a point on the floor of the Maxi Cab on David’s left.[44]
[44]Ibid 362: ‘So it comes from the right-hand side, I just lift his right arm, bring up to the left side and connect it to the left side. There was point on the floor’.

There were three rows of seats in the Maxi Cab. VL Dang sat in the front row in the front passenger seat of the Maxi Cab next to the driver, Mr Singh; Thi Tung Dang sat in the middle row on a single passenger seat to the left of David’s wheelchair. Ms Phan sat in the third row in a single passenger seat in the far-left corner of the Maxi Cab.[45]
[45]See, eg, the evidence of VL Dang: ibid 291.

Mr Singh drove the family to St Albans without incident.

Returning from St Albans

David had booked Mr Singh to collect him and his family from St Albans at 8 pm that day, and drive them home. Upon arriving at 8 pm to collect the family, Mr Singh described the process of loading David into the Maxi Cab again as follows:

Ah again, it was the same process. So I opened the back door and bring the ramp to the, to the ground. And he drove the chair to the ramp, and after that I lift him and I have to go inside so he just ah drove his chair all the way to the front … [a]nd after that I put four restraints – two at front, two at the back – and I did the seatbelt. That’s all.[46]

[46]TS (n 12) 364.

Although (as noted above) David was secured by a wheelchair lap seatbelt before leaving the house at St Albans, the evidence was unsatisfactory as to whether he still had it secured once he had entered the Maxi Cab.[47] Nothing turns on this matter.
[47]See, variously, eg, ibid 25, 301–3, 307 (VL Dang), 320 (Ms Phan), 385 (Mr Singh).

Mr Singh commenced driving the family home towards Springvale. VL Dang, Ms Phan and Thi Tung Dang were all sitting in the same positions in the Maxi Cab which they had occupied when driving to St Albans earlier that day.[48] Mr Singh drove along the Monash Freeway, took the Blackburn Road exit, turned right on Blackburn Road, and was travelling southwards on Blackburn Road in the left lane[49] because he wanted to turn left at Princes Highway after Wellington Road.[50] He was intending to go straight through the Wellington Road intersection.
[48]Ibid 293, 314.
[49]But not the lane that would enter the left-turning slip lane at Wellington Road.
[50]TS (n 12) 365.

The accused’s account of his movements prior to the collision

The accused gave a detailed account of the lead-up to the collision in his record of interview conducted by D/Sgt Williams and another police officer on 28 April 2020, some nine months after the collision.

Mr Duong told police that he had spent the evening playing board games with friends, whom he also ate dinner with in Clayton. On the way home, shortly before the collision, he had stopped at a petrol station on the south-west corner of the intersection of Blackburn and Wellington Roads. The accused was familiar with the intersection, having driven through it both in daylight and at night-time, and routinely on Saturdays.[51]
[51]Exhibit P26 (n 14) Q 129, 132.

After filling his vehicle with petrol, the accused continued driving home and described that process as follows:

I had filled petrol, and I had stopped just before going into the lane [of Blackburn Road, northbound] because there was cars. I had gone in and gone to the outermost lane, ‘cause I was intending to go towards Wellington Road to go to Springvale, to go back to my home. So I’d gone into the outermost lane, and then was at a red light. And then I thought, I guess, now it’s I thought, there was a green light, and I went ahead and tried to turn …[52]

[52]Ibid Q 68.

The collision occurred shortly afterwards at the intersection of Blackburn and Wellington Roads.

It is necessary to set out in some detail the nature and circumstances of the intersection as follows.

The scene of the collision

At the time of the collision, the road was dry, the weather was fine, and the traffic was light. It was night-time, and although it was dark, visibility was reasonable. There are no records of whether all of the overhead streetlights were fully operational at the relevant time.[53]
[53]See TS (n 12) 483–4.

The section of Blackburn Road intersecting Wellington Road at Clayton is a dual carriageway separated by a grass median strip. It is aligned in a general north-south direction. Both the north- and southbound carriageways are constructed of bitumen surface, and there was no evidence to suggest that the quality of the road surface contributed to the collision.[54]
[54]Some resurfacing appeared to have been effected to at least the northern side of Blackburn Road following the collision, but the road surface does not appear to have been a relevant consideration contributing to that collision: see, eg, ibid 441–2.

The northbound carriageway has provision for three traffic lanes to allow for vehicles travelling straight through the intersection, as well as one right-turning traffic lane and a left-turning slip lane. The southbound carriageway has provision for two traffic lanes to allow for vehicles travelling straight through the intersection, and also has two right-turning traffic lanes and a left-turning slip lane. The speed limit was 70 kilometres per hour for traffic travelling north and south on Blackburn Road.

The section of Wellington Road intersecting Blackburn Road is also a dual carriageway of similar construction to that described above. The two roads form a cross-type intersection, which was controlled by traffic lights. The speed limit for traffic travelling through the intersection on Wellington Road was 80 kilometres per hour.

Traffic signal operation
Overview

D/Sgt Williams and S/C Cox gave evidence concerning the probable traffic light sequences presumed to be operating for vehicles travelling in the direction of the accused’s Holden Astra on Blackburn Road (as well as vehicles travelling southbound in the direction of Mr Singh’s Maxi Cab) at the time of the collision.

S/C Cox gave evidence that, immediately after the collision, he drove through the intersection of Blackburn and Wellington Roads in order to observe the relevant traffic light sequencing applicable at the time of the accident.[55] He was, he said, attempting to drive the route he thought the accused’s car had taken before the collision.[56] S/C Cox was asked at trial about the light sequences that appeared to show for a north-facing driver positioned in the right-turning lane in Blackburn Road on the evening of the collision.[57] His evidence was relevantly as follows:

Now, when you parked in that lane, what was the traffic light sequence? What did you observe?
Ah, the – the lights went from red to, ah, green with a green arrow. Um, after a short period of time, the green arrow, um, turned off.[58]

[55]TS (n 12) 347, 348.

[56]Ibid 348.

[57]Given that this was where the accused’s car was driven from, just prior to the collision.

[58]TS (n 12) 350.

He subsequently clarified:

So it was a green circle and a green arrow, with the green arrow extinguishing halfway through the sequence and remaining a green circle.[59]

[59]Ibid.

S/C Cox did not recall seeing any provision for a red arrow as part of the light sequence facing a driver in the position of the accused’s car.[60]
[60]Ibid 351.

D/Sgt Williams also relied on his own observations of the lights at the intersection, based on a visit to that intersection on 29 September 2019,[61] and a further visit on 10 December 2020.[62] He produced a short video of the traffic light sequences using a GoPro camera, which was tendered as Exhibit P28.[63]
[61]Ibid 440.
[62]Ibid 488–9.
[63]It was quite hard, however, to see the traffic lights in Exhibit P28.

The combined thrust of the evidence from S/C Cox and D/Sgt Williams was that, on the evening in question, northbound vehicles on Blackburn Road intending on turning right into Wellington Road faced the following possible scenarios for green light signals:

(a) If faced with a green arrow (whether or not also accompanied by a solid green circle), there was an entitlement to turn right and cross over Blackburn Road into Wellington Road unimpeded by oncoming traffic; but

(b) If faced with a solid green circle only (i.e. no accompanying green arrow), right-turning vehicles had to first give way to oncoming traffic travelling southbound on Blackburn Road, and could only cross over into Wellington Road when safe to do so.[64]

[64]See, eg, D/Sgt Williams at TS (n 12) 456: ‘It has to ensure that, ah – that it is clear and he has to give way to any vehicles travelling south along Blackburn Road through, um – through that intersection. He can turn right once it’s clear and safe to do so’.

VicRoads materials

D/Sgt Williams obtained a number of VicRoads materials pertaining to the operation of the traffic lights at the intersection on 20 July 2019 (collectively referred to in this judgment as the ‘VicRoads report’),[65] including diagrams of the various traffic light sequences applicable to traffic passing through the intersection on that day (‘phase diagrams’).[66]
[65]Exhibit P25 (VicRoads report of traffic light sequence) (‘VicRoads Report’).
[66]D/Sgt Williams also obtained confirmation from VicRoads that, inter alia, the traffic lights were working correctly at the time of the collision.

D/Sgt Williams also received a VicRoads printout of all traffic light phase start and end times for the 30-minute period between 8:23pm and 8:53pm on 20 July 2019 – noting that the earliest known 000 call received by emergency services and relating to the collision was made by Ms Costabile’s husband at 8:39:41pm.[67] The printout showed 67 different traffic light changes over this 30-minute period.[68]
[67]TS (n 12) 451.
[68]Ibid 457.

Phase diagrams

There was evidence that the traffic light sequences detailed in the phase diagrams were contingent on vehicle demand triggered by sensors under the road.[69] Phases were sequenced in alphanumerical order, with this particular intersection containing phase diagrams A, B (B1, B2 or B3), C, D and E (E1, E2 or E3).[70] Phase B typically preceded Phase C.[71] A brief summary of all phases is set out below, with reference to the lanes of traffic and intended direction of each of Mr Singh and Mr Duong:
[69]Ibid 452–3.
[70]See VicRoads Report (n 65) 1, 4.
[71]See, eg, TS (n 12) 476.

Phase A Both SINGH and DUONG are faced with red circles.

Phase B B1 SINGH is faced with a red circle.
DUONG is faced with a red circle and green right turn arrow.

B2 SINGH is faced with a red circle.
DUONG is faced with a green circle and green right turn arrow.

B3 SINGH is faced with a green circle.
DUONG is faced with a red circle.

Phase C Both SINGH and DUONG are faced with green circles.

Phase D Both SINGH and DUONG are faced with red circles.

Phase E E1, E2, E3 Both SINGH and DUONG are faced with red circles.

Based on these phase diagrams, and the observations of S/C Cox and D/Sgt Williams, it was common ground between the parties that – at the time of the collision – vehicles travelling north along Blackburn Road and seeking to turn right into Wellington Road (i.e. the direction intended by the accused) could only have faced solid red, amber or green circles, and/or green or amber right turn arrows. In other words: at the time of the accident, there was no red right turn arrow installed for right-turning traffic.

Prosecution case

The VicRoads report was relied on by the prosecution to mount inferences about the traffic lights that were showing for the accused and Mr Singh respectively, directly prior to the collision.

In brief compass, the prosecution submitted that – if it was accepted from the evidence that both Mr Singh and the accused were facing green lights at the time of the collision – then using the VicRoads report, the traffic light phase which would have applied to the accused at the time of the collision could only have been ‘Phase C’, as shown below:

D/Sgt Williams provided the following relevant explanation of the lines and arrows shown in this phase diagram during his examination in chief:

Q: [T]he lines that are going vertically in each direction relate to the southbound and northbound lanes of Blackburn Road?
A: Correct.
Q: And the lines going horizontally relate to the … lanes that go along Wellington Road?
A: Wellington Road, correct.
…
Q: [W]here there’s a line with an end on it, a T shape, what does that refer to?
A: Ah, that refers to ‘all stop’. So no traffic going – travelling through the intersection.
Q: So a red circle?
A: A red circle.
…
Q: [T]here’s … a curved – line curved to the … left with a T at the end of it … What do those two refer to?
A: So the straight line is the through traffic, and … the arrow is for the turning lanes.
...
Q: And a single line with an arrow on it?
A: Is a through lane.[72]

[72]TS (n 12) 459.

Therefore, pursuant to Phase C (and assuming that the accused and Mr Singh were travelling in the northerly and southerly directions respectively shown on the above diagram):

(a) Southbound traffic on Blackburn Road travelling in the direction of Mr Singh’s Maxi Cab would face a solid green circle;

(b) Northbound traffic on Blackburn Road travelling straight ahead or turning right into Wellington Road would face a solid green circle;

(c) The green arrow would not be showing for right-turning traffic in the position of the accused’s vehicle crossing from Blackburn Road into Wellington Road; and

(d) Eastbound and westbound traffic on Wellington Road would face red lights and could not proceed through the intersection.

Furthermore, if Phase C was the traffic light sequencing phase applicable to the period when the accused entered the intersection, then – recalling the approximate time of the first 000 call alerting emergency services to the occurrence of the accident – the most proximate entries in the VicRoads report when Phase C was operational were:

(a) 8:35:18pm for 35 seconds;

(b) 8:36:55pm for 18 seconds; or

(c) 8:38:35pm for 22 seconds.

Each Phase C iteration was preceded by a Phase B sequence (1, 2 or 3 as indicated above – although it was not possible to determine precisely which one from the VicRoads materials).

In summary, regarding the operation of traffic signals directly prior to the collision, it was common ground between the parties that both Mr Singh and the accused were probably facing a solid green circle in a Phase C sequence at the time they entered the intersection just prior to the collision. This was posited as the most likely scenario, premised on an acceptance of the account of both Mr Singh and the accused that each of them were facing a green light when they entered the intersection.

Alleged offending by the accused
Events immediately preceding the collision according to Mr Singh

Mr Singh was proceeding southwards in Blackburn Road, and intending to turn left onto the Princes Highway from Wellington Road after crossing the Blackburn Road intersection. Therefore, he was travelling in what he described as the far left lane[73] as he approached the intersection of Blackburn Road and Wellington Road.
[73]It was later clarified that the witness was not in the leftmost lane, as that lane became a left-turning slip lane. For example, at TS (n 12) 372, the witness was shown Photo 10 of Exhibit P2 and indicated that he was in the lane that ran alongside the gutter. However, when it was pointed out to the witness that the leftmost lane ultimately became a left-turning slip lane, he retracted his comment and concluded that he would have been in the lane adjacent to the left-turning slip lane.

Mr Singh said in evidence:

So when I came to that intersection, Blackburn Road then the Wellington Road … the lights went totally green and I was travelling on 70. The speed limit is 70. And there was car coming on the other-hand side, he was in the far right lane as well. So I was going straight because my lights were green totally. So suddenly – not even one or two seconds, I can say – I just saw the car just about to hit my taxi.[74]

[74]TS (n 12) 366.

Mr Singh went on to say that he had tried to stop his vehicle to avoid a collision, but was unable to do so in time.[75]
[75]Ibid.

Mr Singh’s description of his approach to the intersection, as provided in his police statement dated 5 August 2019, was adopted by him under cross-examination at trial:

As I approached the intersection with Wellington Road I noticed the traffic lights ahead were totally green for me and traffic going straight ahead … I just remember they were totally green. There was not a lot of traffic around, I don’t recall if there were cars beside me or behind me … As I entered the intersection I recall seeing a car. It was turning from the other way coming towards me. Not even two seconds, that’s all I see of him … He just turned, there was nothing I could do. I think I try to put the brakes on but it was too late. We hit in the intersection.[76]

[76]Ibid 381–2.

Mr Singh said during his oral evidence that the accused failed to indicate prior to the collision.[77]
[77]Ibid 366, 367, 376, 379, 384, 385.

Under cross-examination, Mr Singh agreed that he made a statement to police on 5 August 2019, and that he was telling the truth in that statement, but conceded that he had not mentioned the accused’s indicator at all in that statement.[78]
[78]Ibid 383.

I interpolate here that the question of whether the accused used his indicator is a matter which is in dispute between the parties. Ultimately, I am not satisfied on the evidence before the Court that the accused failed to operate his indicator prior to attempting his right hand turn. This is because Mr Singh did not suggest any such thing to police at the scene, nor did any other person at the scene on the day of the collision. Mr Singh also did not make this assertion in his signed and juratted police statement on 5 August 2019.[79] I also found Mr Singh to have been inconsistent in other aspects of his evidence, such as regarding what he told police about the seat-belting of David when speaking to police at the collision scene, in contrast to his subsequent evidence that David requested to wear the belt under his arms. Furthermore, on Mr Singh’s own evidence, his observation of the Holden Astra before the collision was for a very limited period.[80] I therefore regard the assertion of failure to use an indicator as unsubstantiated, and I propose to disregard it.
[79]Ibid 379–80.
[80]TS (n 12) 366, 367, 375–6.

Whilst considering Mr Singh’s evidence, I also note in passing that – by the time he gave evidence – he was unable to recall aspects of the collision and of the events directly following it. He could not remember if he applied the brakes, although he thought he tried to stop.[81] He could not recall if he turned his steering wheel, or used his horn.[82] Regarding the period immediately following the collision, he variously could not recall exactly how it was that David’s seatbelts were too tight; or exactly how David was positioned in his chair at the time he was trying to help him; or where everyone else was at that time; or if people other than David’s father were trying to help David at that time.[83] He did not recall the conversation he had with police at the scene.[84] Asked about whether the lap belt was connected on David that day, he said he was certain it was on; that he put it on David; and that both belts were connected to one another (the lap belt and the sash belt).[85] The CCTV footage, however, shows this to be incorrect. There were clearly deficiencies in Mr Singh’s ability to recall the details of the incident, giving rise to concern about acceptance of the assertions he made about the accused’s indicator. Further, the fact that he firmly maintained that both lap and sash seatbelts were used – in the face of objective evidence to the contrary – raises a question about his credibility. That being said, I do accept Mr Singh’s evidence that he had a green light at the time he drove through the intersection, and note that this explained why he had not slowed down on his approach.
[81]Ibid 377.
[82]Ibid.
[83]Ibid 369–70.
[84]Ibid 391.
[85]Ibid 388.

Events immediately preceding the collision according to the accused

As mentioned earlier, police officers C/Tuckerman and S/C Cox attended the scene of the collision. They each separately obtained a brief explanation from the accused about what had happened that caused his car to collide with the Maxi Cab. It was accepted by each of these witnesses that the accused appeared shocked at the scene of the collision when they spoke to him.

C/Tuckerman recounted the following exchange with the accused at the scene:

Um, he stated to me that he’d come from the petrol station on Blackburn Road, so just south of the intersection … had moved up into the turn lane and had attempted to turn right through the intersection … he did state to me he definitely had a green light, and he doesn’t believe that there was a red light at all.[86]

[86]TS (n 12) 408.

Under cross-examination, C/Tuckerman agreed that the accused said he had come from the service station and crossed the three traffic lanes before entering the right turn lane. He then gave the following evidence:

Q: He went on to say that he thought he had a green light to continue?
A: Yeah. Correct.
Q: And he was certain there wasn’t a red arrow?
A: That’s correct. That’s what he stated, yes.
…
Q: All right. He simply described that he wasn’t travelling very fast and had only travelled a short distance through the intersection?
A: That’s correct.[87]

[87]Ibid 418.

S/C Cox recounted the following exchange with the accused at the scene:

Um I’ve asked, ‘Can you tell me what has, what’s happened?’ Um his response was ‘I thought I could make it through the intersection’ … I asked him … to show me where he had come from and where he was intending to go to. He’s indicated or provided the information that he was … making a right-hand turn. He’d entered the intersection and turned right on the … green light, and he was intending to turn to travel east on Wellington Road.[88]

[88]Ibid 339.

Some nine months later, in a formal record of interview, the accused was asked about the circumstances of the collision. He qualified his answers when asked to describe the nature of the green light, saying that he was no longer sure now (the more he thought about it)[89] whether the light was purely a green arrow or purely a green light.[90] He said that because of the time that had passed since the crash, the events of the night were not as clear in his memory as they were initially.[91]
[89]Exhibit P26 (n 14) Q 227–228.
[90]Ibid Q 230.
[91]Ibid Q 233.

He also said when asked to call upon his experience of that intersection and describe the light sequences: ‘I don’t entirely trust my memory at this point’.[92]
[92]Ibid Q 224.

With those qualifications to his answers in his record of interview, he recounted the circumstances of the collision as follows:

So I went from obviously the petrol station, waited for a bit for at least two or three cars to go past, and it was still a green light by then, by the time I turned to the outermost lane to go into the right hand turning lane, it turned red, and I pretty much sat there waiting for a bit. And then I saw green, and then I started to go, and for some reason I didn't see the taxi, and then - but I heard the horn at the last second, and then pretty much took my foot off the accelerator. And then, yeah, that's what happened. And that's also why my car went so far back into the other lane,[93] 'cause I didn't hit the brakes to stop.[94]

[93]I interpreted this as a reference to the rest position of the Holden Astra, which was further south than the rest position of the Maxi Cab.

[94]Exhibit P26 (n 14) Q 108.

When asked about his initial account of the circumstances of the collision – as compared to his later account provided during interview – the accused appeared puzzled, and said:

That statement doesn’t make any sense to me … ‘[c]ause I wasn’t speeding, so there’s no point in me saying that I thought I would make it … I’m not too sure what to think of that. This isn’t to discredit the officer, but I’m still not sure about what I meant by that, ‘I thought I would make it’ …[95]

[95]Ibid Q 275–278.

The accused also variously said that he was not in a hurry;[96] and that, when the lights turned green, he ‘lightly accelerated and went straight’.[97] He was now unsure if he had a green arrow or a green circle, but was certain the light was green.[98]
[96]Ibid Q 144.
[97]Ibid Q 168.
[98]Exhibit P26 (n 14) Q 146–149.

The accused further said that he saw the Maxi Cab:

At the last moment. I heard the taxi before I even saw it … I was driving forward and then as I was starting to turn, I heard … the horn, and then, yeah, that pretty much was it.[99]

[99]Ibid Q 118.

When asked how long it took from the traffic light turning green to the collision occurring, the accused answered:

I'd say a couple of seconds … maybe four or five, 'cause that … intersection between Blackburn and Wellington, there's a bit of a distance to get to because it's double-lane, double or triple-lane, so you have to cross one of the lanes and then you can turn into it, you can't turn into it straightaway … So if I had seen … the taxi, then I would've just ended up stopping just before I turned, and then proceeded off … [100]

[100]Ibid Q 114–116.

I will refer to the accused man’s account in more detail later in these reasons.

Events immediately preceding the collision according to Maxi Cab passengers

VL Dang was sitting in the front passenger seat of the Maxi Cab, and described that he saw ‘about three or four vehicles parking[101] along Wellington Road’.[102] They were on the right-hand side of Wellington Road, and were in a different lane from the vehicle he was in. He said he could see there was a car from Wellington Road trying to turn right.[103] He further said:

So by the time I saw that vehicle it was just about to approach the traffic light … Our car was in the middle lane near the traffic light, and the other car was still on Wellington Road … we were just about to go straight … So when I first saw the car turning right I just shouted ‘Car, Vehicle!’ And then right at that moment the clash occurred.[104]

[101]I interpreted this to be a reference to other vehicles that were stopped and waiting at the traffic lights.

[102]TS (n 12) 294.

[103]As with Ms Costabile, the witness seemingly perceived the vehicle that collided with the Maxi Cab as being in Wellington Road.

[104]TS (n 12) 294–5.

Asked where the Maxi Cab was compared to the traffic lights on Blackburn Road when he first saw the car in Wellington Road, he answered:

So while we were approaching the red light, the traffic light and then at the same time the other car was just about to turn right.[105]

[105]Again, although it is known that the accused’s car came from Blackburn Road, it would appear that VL Dang. upon seeing the car just before the collision, was under the impression that the accused’s car may have come from the west side of Wellington Road.

The above answer was confusing (referring to approaching a red light), but when the witness was asked if he saw the traffic light facing the Maxi Cab as it drove up to the intersection he said it was green.[106]
[106]TS (n 12) 295.

Under cross-examination, VL Dang was asked if he remembered any other vehicles travelling the same way as the Maxi Cab prior to reaching Wellington Road, but said he did not notice.[107] He said he saw other vehicles on his right-hand side in Wellington Road waiting to drive across Blackburn Road in Wellington Road.[108] He was asked about any other cars coming along Blackburn Road towards Wellington Road, but said he did not look in that direction or otherwise notice, and only looked on his right side.[109] Asked in re-examination about the position of the Maxi Cab when he first saw the accused’s car, and whether Mr Singh had already entered the intersection or was still travelling towards it, he said:

So they were at the same time, so the taxi was um approaching the intersection and right at that moment the, the other car hit the taxi.[110]

[107]Ibid 305.

[108]Ibid 304, 305.

[109]Ibid 305.

[110]Ibid 309.

Neither Ms Phan nor Thi Tung Dang were able to describe the exact position of each vehicle on the road prior to the collision.

I found VL Dang to be an honest witness, but consider that he only had a momentary opportunity to observe the circumstances of the impending collision before it occurred. Like Ms Costabile, it seems he wrongly apprehended that the accused’s car came from Wellington Road before the collision. His answers about exactly where the Maxi Cab was relative to the accused’s car varied somewhat over the course of his oral evidence, and there may have been some problems with accuracy of interpretation of questions and answers. It was apparent, however, that he only noticed the accused’s car immediately before the impact, and before that time had been looking to his right towards traffic waiting at the lights in Wellington Road.

Thi Tung Dang and Ms Phan were honest witnesses, but they each had a very limited vantage point from their seats in the middle and rear of the Maxi Cab, which explains why they were unable to describe the movements of the vehicles just before the collision.

Accordingly, I have approached the evidence of VL Dang, Thi Tung Dang and Ms Phan with an awareness of the limitations on what they were able to observe immediately before the collision.

Events immediately preceding the collision according to Ms Costabile

Eyewitness Ms Costabile was sitting stationary in her vehicle at the intersection of Blackburn and Wellington Roads when the collision took place. She was driving westbound in Wellington Road intending to proceed straight through the intersection, and had stopped at a red light at the intersection with Blackburn Road.[111] Her now-husband was a passenger in her vehicle at the time. She described the circumstances immediately preceding the collision as follows:

So we stopped at the intersection because we – we had a red light. Um, and whilst we were sitting there, just obviously looking around at the traffic as you do, um, in an intersection and, um, I noticed that … there was a – a Maxi Cab, a taxi, coming from, um, my right side, um, through the intersection … I recall seeing a smaller vehicle and a collision occur, again, towards the right of – of me. Within the middle of the intersection.[112]

[111]The position of Ms Costabile’s vehicle, which was facing in a westerly direction, is depicted in Exhibit P18, being a copy of Exhibit P1 as annotated by Ms Costabile.

[112]TS (n 12) 399–400.

Ms Costabile could not recall several specific details concerning the collision, but was able to annotate Exhibit P1 as follows:

(a) A blue line was drawn to indicate the southbound direction of the Maxi Cab coming from Blackburn Road on her right.[113] It was noted that Ms Costabile had drawn her blue line in the centre lane, but she clarified that she could not recall exactly which lane the Maxi Cab was travelling in at the time;[114]

(b) A pink circle was drawn to indicate the position of the Maxi Cab and the accused’s Holden Astra where they collided in the intersection.[115] Ms Costabile said she was ‘not 100 percent sure’ where the accused’s vehicle was when she first saw it;[116] and

(c) A yellow dot was drawn to indicate the position of Ms Costabile’s vehicle on the right-hand side of the intersection on Wellington Road at the time the collision occurred. She could not recall exactly which lane she was in at that time.[117]

[113]Ibid 401.

[114]TS (n 12).

[115]Ibid.

[116]Ibid.

[117]Ibid 400.

Ms Costabile described the nature of the collision and the immediate moments subsequent to it as follows:

I recall it being in the intersection and um because I recall seeing the collision being like a, a T-bone like um, ah, you know, collision so I thought that perhaps the vehicle had come from um the, Wellington Road but from the other direction – so opposite us … [and after colliding] they kind of moved um and I believe that the, the smaller car swung around, perhaps, within the intersection.[118]

[118]Ibid 402-3: The witness speculated that, because it was a T-bone collision, she thought perhaps the vehicle (referring to the Holden Astra) had come from the opposite side of Wellington Road.

Immediately after the collision, Ms Costabile drove through the intersection, and then merged to the left and stopped in a side lane in Wellington Road so that her husband could call 000.[119] Her impression was that traffic in Wellington Road was fairly light at the time of the collision.[120]
[119]Ibid 403.
[120]Ibid 404.

I found Ms Costabile to be a thoughtful and honest witness, and I am prepared to accept her evidence so far as it goes. She also, however, had a limited vantage point from which to view the collision, and she frankly admitted that there were details she could no longer recall after such a long time. She noticed the Maxi Cab’s position before she perceived the Holden Astra, and was mistaken about the direction the Holden Astra came from. I therefore approach her evidence keeping these factors in mind.

Nature of the collision

As indicated by the foregoing accounts, the vehicle driven by the accused entered the intersection of Blackburn and Wellington Roads. After entering the intersection, the accused attempted to turn right, and entered the path of the Maxi Cab containing David and members of his family. The vehicles collided in an offset, head-on collision.

As a result of the collision, despite the sash of his seatbelt being across his chest (but under his arms), David was jolted forwards and to the right. His legs and lower abdomen slipped forward in his wheelchair so that his body was being supported by the sash component of the seatbelt around his chest.

When the Maxi Cab came to rest, David’s father saw that David had slipped down halfway on the wheelchair seat and tried to lift him up.[121] The seatbelt was too tight, and he was unable to release it, so he called Mr Singh to help him. Eventually, after Mr Singh and some other people assisted them,[122] David was lifted back up into a seated position in the wheelchair.[123] Mr Singh gave evidence that he had to ask David to reverse the electric wheelchair before they could release the seatbelt.[124]
[121]TS (n 12) 296.
[122]There were some road workers in the vicinity who were able to assist.
[123]TS (n 12) 296.
[124]Ibid 369.

David’s mother, Ms Phan, observed that David seemed fine at first after being lifted back into his chair, but ten minutes later he complained it was hard to breathe and he was then taken by ambulance to hospital.[125] She went with him to the Monash Medical Centre.[126]
[125]Ibid 316, 317.
[126]Ibid 317.

After being treated at Monash Medical Centre, David’s condition deteriorated, and he was transferred to the Alfred Hospital, where he received further treatment before succumbing to his injuries at 6:13am on Sunday 21 July 2019.

Ms Phan noticed that she herself was feeling some pain when she met up with her daughter at the hospital. She felt tightness across her chest and aching all over, but was not given any medication.[127]
[127]TS (n 12) 317.

VL Dang felt pain in his chest, ribs and back after the collision, and was taken to the Alfred Hospital. He was discharged the following morning.[128]
[128]Ibid 298.

Thi Tung Dang (who was also wearing her seatbelt under her arms) sustained a rib fracture as a result of the collision.[129]
[129]Ibid 426.

Police investigation
At the scene of the collision

S/C Cox and C/Tuckerman were dispatched to the scene of the collision, and arrived at 8:44pm.

On arrival, S/C Cox observed a silver vehicle and yellow Maxi Cab stationary in the intersection, both of which appeared to have been involved in the collision. S/C Cox parked his police divisional van across Wellington Road as a blockade to westbound traffic, and efforts were made to make the scene safe. S/C Cox annotated a copy of Exhibit P1 to indicate where his divisional van was parked, and the position of the Maxi Cab and Holden Astra as observed by him on arrival at the scene. This annotated diagram became Exhibit P17.[130]
[130]The pink circle refers to the Maxi Cab, and the yellow circle refers to the Holden Astra. The blue circle refers to the police divisional van.

S/C Cox observed the accused’s Holden Astra stationary in the middle of the intersection, having sustained damage to the front of the vehicle. The Maxi Cab had also come to rest in the middle of the intersection, with its rear wheels still in its lane of travel, but the front of the vehicle was skewed easterly at an angle towards stationary traffic on the right-hand side of the intersection on Wellington Road. The rest positions of each vehicle can be ascertained from the photographs taken at the scene by S/C Cox, and are shown in Figure 3 of the joint expert report of Mr Hardy and Mr Carter. Mr Hardy noted that the angle of the Maxi Cab in its rest position was approximately 45 degrees.[131] No other witness contradicted this broad estimate. The likely movement of each vehicle was described in D/L/S/C Hardiman’s first statement (referring to the Maxi Cab as the ‘Toyota Hi Ace’).[132] He said:

As the Holden Astra turned right into Wellington Road, it turned into the path of the Toyota Hi Ace. The Toyota, which also faced a green traffic control signal, impacted into the Holden, causing the Holden to move southward approximately 10 metres while rotating counter clockwise about 180° before coming to a stop facing in a southerly direction. The Toyota continued forward for a short distance before coming to a stop facing south.[133]

[131]Exhibit P13 (Joint Expert Report of Mr Carter and Mr Hardy) (‘Exhibit P13’) 3.

[132]Exhibit P4A (First statement of D/L/S/C Hardiman dated 21/08/2019).

[133]Ibid 1.

When S/C Cox and C/Tuckerman arrived on scene, S/C Cox directed C/Tuckerman to speak to the accused, who was identified as the driver of the Holden Astra.

C/Tuckerman attended near the Holden Astra to speak with the accused. The accused declined the offer of paramedic assistance. C/Tuckerman administered a preliminary breath test (‘PBT’) and examined the accused’s driver's licence. The PBT was negative for alcohol.[134] The accused appeared in shock and was ‘a bit shaky’, but was ‘still coherent and able to have a conversation’.[135] That conversation has been described earlier in these reasons.
[134]C/Tuckerman also requested Mr Singh undergo a PBT, which similarly returned a negative result for alcohol.
[135]TS (n 12) 409.

S/C Cox approached the Maxi Cab and observed the person now known as VL Dang sitting in the doorway of the Maxi Cab. He had a short discussion with him, and then looked into the cabin of the Maxi Cab, where he saw David slumped[136] in a motorised wheelchair and a lady standing behind him with her arms around supporting him.[137] To the left, in a single passenger seat, was another female.[138]
[136]'If I could describe it as just um bent forward’: ibid 335.
[137]Inferred to be his mother Ms Phan, based on evidence contained in police photographs and her own testimony.
[138]A reference to Thi Tung Dang.

S/C Cox spoke to Mr Singh, and made observations of the position of each vehicle in the intersection and damage sustained by each vehicle. He did not have any measuring equipment with him at the time, but had an iPad which he used to take some photographs.[139] The photographs taken by S/C Cox comprised the first 9 photographs ultimately included in Exhibit P2.
[139]TS (n 12) 341.

It is worth noting that Ms MacGregor herself has a driver’s licence.[273] When asked to describe Mr Duong’s manner of driving, she gave the following account:

[M]y experience of being a passenger with Kevin is I have not witnessed him drive recklessly. He is a very careful and cautious driver, and very respectful to passengers and other people on the road. I've never seen Kevin driving using a mobile phone or under the influence of drugs or alcohol. If Kevin has ever needed directions, he has referred to in-built GPS systems in cars or other passengers to provide that.[274]

[273]TS (n 12) 514.

[274]Ibid.

I found Ms MacGregor to be an impressive and thoughtful witness. She appeared to conscientiously respond to questions about the accused’s driving on other occasions, and gave pertinent examples when asked. Accordingly, I am prepared to accept her evidence regarding Mr Duong’s character as a driver.

Changes to the traffic signals following the collision

D/Sgt Williams gave the following evidence on the fifth day of trial:

[H]aving known the intersection now, it's probably not the best or ideal situation for those traffic control signals to be set up the way they are, allowing cars to travel through like that … there's plenty of scenarios that could – could cause a crash within that intersection for right turners.[275]

[275]Ibid 472.

He agreed that there is scope to misjudge the speed and distance of oncoming traffic in the intersection, and that it would be preferable for there to have been a red turn arrow, which would mean that drivers could only turn on a green turn arrow. He also agreed with evidence given by Mr Hardy that it is more difficult for drivers to judge the speed of an object front-on, as compared to when viewed side-on.[276]
[276]TS (n 12) 473.

A view of the intersection was conducted on the sixth day of the trial. During the view, it was noted that since 20 July 2019 the traffic lights at the intersection had been updated, and there is now a red right turn arrow installed facing northbound traffic on Blackburn Road. A sign has also been affixed to the traffic light column on the median strip of Blackburn Road south of the intersection which reads ‘stop here on red arrow’. Neither the red arrow nor the sign were present at the time of the collision.[277] Whilst there was a decline in the road that would have been travelled by Mr Singh prior to the collision, it was only slight, and the road appeared to plateau closer to the intersection.
[277]During the view, D/Sgt Williams said that the arrangement of the overhead streetlight was probably unchanged since the time of the collision, although he noted that there were no records verifying whether all streetlights were fully operational at the time of the collision.

The parties did not have any foreknowledge that the traffic light sequencing at the intersection had changed until the day of the view.

Prosecution case

The prosecution submit that the manner in which the accused was driving involved such a serious breach of the proper management and/or control of the vehicle as:

(a) He failed to keep a proper lookout as he entered the intersection;

(b) He failed to enter the intersection in circumstances where it was safe to do so;

(c) He failed to give way to the Maxi Cab which was proceeding straight through the intersection in accordance with the applicable traffic signals; and

(d) He failed to use his indicator to signal that he was intending to turn right.

Specifically, the prosecution submits that, while David was a vulnerable person because he suffered from DMD, the collision caused the injuries resulting in his death, and therefore contributed significantly to, or was a substantial and operating cause of, David’s death.

The prosecution rely on admissions by the accused that he was driving the Holden Astra just prior to the collision and that either he failed to see the Maxi Cab driven by Mr Singh (as stated in his record of interview), or he turned without leaving sufficient time to turn safely (as stated to S/C Cox at the scene of the collision).

Defence case

The defence case is that the collision was not caused by dangerous driving of the accused, and also that the accused’s dangerous driving did not cause David’s death.

First, the defence submits that the accused’s driving in this case did not bring it within the meaning of ‘dangerous’ driving, and that – but for the deceased’s tragic passing – the circumstances of this case would have been more appropriately characterised as a case of careless driving. Whilst the accused failed to give way, his error of judgment may have been contributed to by difficulties in assessing the speed of the oncoming Maxi Cab, which could have covered a considerable distance quite quickly based on Mr Singh’s estimate of his speed prior to the collision.

Second, the defence submits that Mr Singh fitted the Maxi Cab seatbelt incorrectly to the deceased when loading him into the rear of the vehicle and restraining him in place. This meant that, at the time of the accident, the deceased was not properly secured by his seatbelt. As a result of improper seat-belting, the seatbelt placed intolerable pressures on the deceased’s chest which caused his death (rather than the accused’s ‘dangerous’ driving).

Legal principles
Elements of the charge

Section 319(1) of the Crimes Act provides that a person who 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] causes the death of another person is guilty’ of an offence.

The prosecution must prove the following elements:

(i) The accused was driving a motor vehicle; and

(ii) The accused drove dangerously; and

(iii) The dangerous driving caused the death of another person.

The Victorian Criminal Charge Book[278] sets out the following checklist to assist in the consideration of the elements of the offence:
[278]Criminal Charge Book (n 20).

Driving a Motor Vehicle
1. Was the accused driving a motor vehicle?
If Yes, then go to 2
If No, then the accused is not guilty of Dangerous Driving Causing Death
Driving Dangerously
2. Did the accused drive dangerously?
Consider – Did his/her driving involve a serious breach of the proper management or control of a vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured.
If Yes, then go to 3
If No, then the accused is not guilty of Dangerous Driving Causing Death
Causing Death
3. Was the accused’s dangerous driving a substantial or significant cause of the victim’s death?
If Yes, then the accused is guilty of Dangerous Driving Causing Death
(as long as you have also answered Yes to questions 1 and 2)
If No, then the accused is not guilty of Dangerous Driving Causing Death[279]
[279]Ibid ‘7.2.6.3 Checklist: Dangerous Driving Causing Death’.

Element 1: ‘Driving a motor vehicle’

For the first element to be met, I must be satisfied that the accused was driving a motor vehicle.

Element 2: ‘Driving dangerously’

For the second element to be met, I must be satisfied that the accused drove ‘at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case’.[280] That is, that his driving involved a serious breach of the proper management or control of a vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured.
[280]Crimes Act (n 3) s 319(1).

The accused must have driven at a speed or in a manner that significantly increased the risk of serious injury or death, over and above the ordinary risks of the road.

The accused’s manner of driving includes all matters concerned with the management and control of the vehicle, such as the accused’s technical driving skill. All matters concerned with the control and management of the vehicle are part of the accused’s ‘manner of driving’, including speed, navigation and communication with other drivers.

As mentioned earlier, the prosecution do not allege that the accused drove at a speed dangerous to the public, and that aspect of the charge under s 319(1) of the Crimes Act has not formed part of the particulars of the charge. The focus of the charge is, rather, on an allegation that the accused drove in a manner that was dangerous to the public, having regard to all the circumstances of the case.

The Victorian Court of Appeal recently reviewed the authorities that apply to consideration of the legal concept of driving at a speed or in a manner dangerous to the public in Georgiou v The Queen,[281] and summarised the applicable principles as follows:
[281][2022] VSCA 172 (‘Georgiou’).

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’. The objective question is whether the manner of driving has the necessary quality of being dangerous to the public.
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.

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.’
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.

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.’ 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.
Although dangerous driving may, and often will, be associated with a want of care, negligence is not an element of the offence. As was said in King, particular driving may be undertaken with care and skill but remain dangerous for the purpose of s 319. 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.
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. 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.
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.’ 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.[282]

[282]Georgiou (no 281) [13]–[21] (citations omitted).

The Victorian Criminal Charge Book contains a model charge for juries based on the same general principles referred to by the Court of Appeal above, derived from cases such as McBride v The Queen,[283] Jiminez v The Queen[284] and King v The Queen.[285]
[283](1966) 115 CLR 44 (‘McBride’).
[284](1992) 173 CLR 572 (‘Jiminez’)
[285](2012) 245 CLR 588 (‘King’).

I will discuss the application of the abovementioned principles to the accused’s driving below.

Element 3: ‘Causing death’

For the third element to be met, the jury must be satisfied that the accused’s dangerous driving caused the death of the alleged victim. That is, David must have died as a result of the accused driving at a speed or in a manner that was dangerous to the public. For this to be the case, there must be a relationship between the accused’s dangerous driving and the alleged victim’s death. It will not be sufficient if the collision simply happened to occur while the accused was driving, but was not due to his dangerous driving. However, the accused’s dangerous driving does not need to have been the only cause of the alleged victim’s death, or the direct or immediate cause. The fact-finder may find that the accused’s dangerous driving caused the alleged victim’s death if it was a substantial or significant cause of that result.

Findings as to the elements of the charge

There was no dispute between the parties regarding the first element that the accused was driving a motor vehicle. Accordingly, the fact of the accused driving a motor vehicle is taken to be admitted and it is unnecessary to consider this further.

Turning to the second element of the offence, I have already set out the basis on which the prosecution say the accused’s driving was dangerous.

Regarding the allegation that the accused failed to use his indicator to signal that he was intending to turn right, I am not satisfied that the evidence supports the allegation of failing to indicate, for the reasons specified earlier.

The allegations that the accused failed to keep a proper lookout as he entered the intersection; that he failed to enter the intersection in circumstances where it was safe to do so; and that he failed to give way to the Maxi Cab which was proceeding straight through the intersection in accordance with the applicable traffic signals, rely on the Court drawing inferences based on the evidence adduced at trial.

As I have already noted, I may only convict the accused if I am satisfied that his guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect. If there is another reasonable view of the facts which is consistent with the accused’s innocence, then the prosecution will not have proved his guilt beyond reasonable doubt. For the following reasons, I am not satisfied that the only reasonable conclusion to be drawn from the evidence is that the accused drove dangerously.

I am satisfied that Mr Singh had a green light and right of way to proceed straight through the intersection.

Notwithstanding the size of the Maxi Cab driven by Mr Singh and the fact that it was yellow, I accept that these features of the vehicle would not have been so obvious to a person viewing the Maxi Cab in night-time driving conditions and from a head-on position.

Regarding the speed of Mr Singh's vehicle, I accept the evidence of D/L/S/C Hardiman that there was insufficient information with which to verify or reliably calculate the speed at which the Maxi Cab was travelling prior to impact. In the circumstances, I therefore accept that Mr Singh was probably travelling at a speed of between 50 to 70 kilometres per hour before Mr Singh apprehended the risk of a collision. I note that Mr Singh was quite adamant he was travelling at 70 kilometres per hour, which was the speed limit for the relevant section of road.[286]
[286]TS (n 12) 366, 376.

It is possible Mr Singh applied his brakes when he apprehended the risk of a collision, but this is another unknown factor; his evidence on this point was equivocal. Mr Singh’s written statement, which he adopted during oral evidence, said: ‘ I think I tried to put the brakes on but it was too late’.[287] Mr Hardy referred to the possibility that Mr Singh applied his brakes before impact, but the evidence is uncertain on this point.
[287]Ibid 366, 367: In his examination-in-chief, Mr Singh also said that ‘I tried to stop but I couldn’t’, and that ‘it was only one second, like, I tried to stop. I couldn’t’.

I accept that it is probable that Mr Singh and the accused were each facing a green light – being a solid green circle – at the time of the collision, and that it is possible that the traffic lights were therefore in Phase C occurring at any of the three time periods referred to by the prosecution in their closing.

It is clear that none of the following factors adversely impacted the accused's driving: drug or alcohol use, sleep deprivation, tiredness, poor eyesight, inattention through being distracted by others, or use of a phone.

I am satisfied that the accused was not driving at an excessive speed, and that speed was not a contributing factor in the collision.

I am satisfied that the accused's usual manner of driving was, and is, generally careful and attentive. In this regard I found Ms MacGregor’s evidence helpful and persuasive. Notwithstanding the difficulty the accused had in recalling the details of the collision (which arose because of the delay in interviewing him), it appeared that the accused did his best to answer police questions honestly. My assessment of the account he gave to police at the scene and during his interview was assisted by evidence of his good character, which included the absence of any criminal history[288] and the evidence of Ms MacGregor. The accused’s account of the manner in which he generally drove was confirmed by the account of Ms MacGregor, assisting the Court to find that the accused’s usual manner of driving is, and was, careful and attentive. The evidence of good character makes the allegation of dangerous driving harder to accept, though as I have stated earlier, a person who has previously been of good character – including a person with an unblemished driving record – can still commit a crime for the first time.
[288]TS (n 12) 499: D/Sgt Williams gave evidence in cross-examination that Mr Duong has no prior criminal history, nor any recorded traffic violations.

I am satisfied that the accused was familiar with and experienced in using the intersection, and that he was competent to drive through it safely. He was aware of the layout of the intersection and that he was obliged to approach it with care.

I am satisfied that there is no evidence of poor driving behaviour by the accused prior to the moment before the collision.

There is no evidence that the accused was distracted by anything at the time he proceeded forward into the path of Mr Singh's Maxi Cab. I accept that Mr Singh’s Maxi Cab had its headlights on. D/Sgt Williams agreed with the evidence of Mr Hardy that it is more difficult to assess the speed/movement of another vehicle head-on than side-on.[289]
[289]Ibid 473.

The prosecution in their closing arguments invited the Court to accept that the accused was first seen by Mr Singh when the accused was still in the right hand turn lane waiting to turn into Wellington Road, but conceded that the evidence was not particularly clear on this point.[290] I took this to be a suggestion that the accused was perhaps still behind the stop line in Blackburn Road when first observed by Mr Singh. I am far from satisfied that Mr Singh noticed the car driven by the accused until a few seconds before it appeared to be impinging on his lane of travel. It was also not possible on the evidence before the Court to draw firm conclusions about the movements of any other vehicles that may have been in the general vicinity at the time the collision, other than noting the general observations made by those present that traffic appeared to be light.
[290]TS (n 12) 550–1.

As to failing to keep a proper lookout as he entered the intersection and/or failing to enter the intersection when it was safe to do so, these two allegations seem to be predicated upon the accused's conduct in travelling into the intersection from behind the stop line. I am, however, unable to be satisfied that there was any error of driving by the accused at the time he entered the intersection before proceeding to cross Mr Singh’s lane of traffic in order to complete his right hand turn. I accept that he had no reason to rush and was not in a hurry.

I am satisfied that the accused was obliged to give way to Mr Singh's vehicle, and that he failed to so, but I am unable to be satisfied as to exactly why he failed to give way. I consider it reasonably possible that he entered the intersection with the green light and checked for oncoming traffic before proceeding with his right hand turn, but for reasons that are not clear he failed to give way to the Maxi Cab.

An error involving a failure to give way may, but will not always, involve a failure to keep a proper lookout for oncoming vehicles. The act of driving on a public highway usually involves a multiplicity of decisions about when it is safe to enter or traverse through a lane of traffic. A driver may be keeping a lookout but misjudge the speed of oncoming traffic or its distance away.

In my opinion, this case is similar to the case of McBride v the Queen[291] where Barwick CJ said:

Beyond the inference which could be drawn from these basic facts there was no direct evidence that the applicant was driving inattentively, and particularly no specific evidence that he was so inattentive that his driving was dangerous to the public.[292]

[291]McBride (n 283).

[292]Ibid 49.

I am satisfied that the intersection itself involved some complexity, with multiple lanes for traffic travelling in each direction. The middle part of the intersection is also quite a widespread area. The general layout of the intersection is not dissimilar to other complex intersections in the south-eastern suburbs of Melbourne. I was persuaded, however, based on the evidence of D/Sgt Williams, that the design of traffic signals at the time of the collision was less than ideal, having regard to the applicable speed limits for cars travelling along Wellington Road and Blackburn Road, and bearing in mind the degree of difficulty for drivers in judging the speed of an oncoming vehicle (relative to a vehicle viewed from the side). I appreciate that the difficulty of this exercise would be even greater at night time.

I consider it significant that D/Sgt Williams was critical of the design of the traffic lights at the intersection, noting the controlling speed limits of 80 kilometres per hour for Wellington Road and 70 kilometres per hour for Blackburn Road. He considered that a red turn arrow should have been part of the traffic light sequence for traffic in the position of the accused’s vehicle. I also note that, since the accident, the traffic lights have been altered to install a red right turn arrow signal, and a ‘stop here on red arrow’ sign, perhaps to make the intersection safer in respect of right turning vehicles turning from the position the accused was in prior to entering the intersection.[293]
[293]Notwithstanding the evidence regarding the changes to the intersection since the date of the collision, I would still not be satisfied that the accused drove dangerously.

In considering whether the accused’s driving was dangerous, I am conscious that there must be some feature which is identified not as a want to 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.[294]
[294]Jiminez (n 284) 579 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) (citations omitted).

This case is different from the facts and evidence present in Georgiou v The Queen.[295] In that case, the Court of Appeal upheld the trial judge’s findings of fact that the applicant’s view was clear and unimpeded along Hawthorn Road for around 13 seconds and 160 metres before impact with the pedestrian standing in the middle of Hawthorn Road, and that the pedestrian was stationary in the centre of the road for approximately nine seconds. The trial judge made a finding that the driver was inattentive to the roadway ahead of her for nine seconds, and that because of that prolonged period of inattention she was guilty of dangerous driving.[296]
[295]Georgiou (n 281).
[296]Ibid [3].

In the present case, I am not satisfied that the accused's manner of driving prior to the collision created risks that significantly exceeded the risks ordinarily associated with driving (which is an inherently risky activity). I have kept in mind that people do not always drive as they should. The mere fact that a collision occurred due to an error in the accused's driving does not mean that driving must have been dangerous.[297] There was nothing intrinsically dangerous about the accused’s manner of driving, taking into consideration the particular circumstances surrounding it. Negligence, even in some glaring respect, is not enough to make out dangerous driving.[298]
[297]See Criminal Charge Book (n 20) ‘7.2.6 – Dangerous Driving Causing Death or Serious Injury’.
[298]McBride (n 283) 51 (Barwick CJ).

In order for the prosecution to establish dangerous driving, it must be proven beyond reasonable doubt that Mr Duong’s driving involved such a serious breach of the proper conduct of a vehicle upon the highway so as to be in reality – and not speculatively – dangerous to others. This does not involve a mere breach of duty however grave to a particular person having significance only if damage is caused thereby.[299]
[299]Ibid 50.

Whilst various scenarios might account for the accused's failure to give way when he proceeded to turn through the lane in which Mr Singh was travelling – thereby leading to the collision – I cannot exclude the reasonable possibility that the accused acted as a result of a relatively spontaneous and momentary error of judgment or perception or some combination of the two.

The evidence does not satisfy me that the accused drove in a manner dangerous to the public, having regard to all the circumstances of the case. I am not satisfied that the prosecution have discharged their onus to establish guilt of dangerous driving to the very high standard of proof required in criminal cases, being proof beyond reasonable doubt.

The issue of causation

Because I am not satisfied beyond reasonable doubt that the accused drove in a manner that was dangerous to the public having regard to all the circumstances of the case, within the meaning of s 319(1) of the Crimes Act, it is unnecessary to consider the remaining element of causation. I have therefore not set out more fully the differences of opinion or emphasis between the experts touching on the issue of causation.[300]
[300]Adopting the approach discussed in DL v The Queen (2018) 266 CLR 1, 12–13 [33] (Kiefel CJ, Keane and Edelman JJ) that the adequacy of reasons should be considered by reference to the heart of the issues that are determinative of the proceeding.

Conclusion

For the reasons I have outlined, I am not satisfied that the prosecution has proven the second element of the charge beyond reasonable doubt; namely, that the driving of the accused was ‘dangerous’ within the meaning of s 319(1) of the Crimes Act. Accordingly, I am unable to be satisfied, beyond reasonable doubt, that the accused caused the death of David Dang by driving a motor vehicle in a manner that was dangerous to the public, having regard to all the circumstances of the case.

Verdict

Mr Duong, please stand.

On charge 1 of indictment number L11697935, being ‘Dangerous driving causing death’, I direct that a verdict of ‘Not Guilty’ be entered.

Annexure A

Q: And what - what are your obligations when you turn right at that intersection?
A: Depending on the lights, if it's just green and it has the arrow, then usually you either go straight or if there's a car coming … you would be waiting for it to cross, and then you can go through. You're obliged to stop obviously if you see it coming …

Q: [H]ow bright is that intersection?
A: Relatively, it's not - it's not completely bright 'cause … the lamp lights aren't white coloured, they're a bit tinted.

Q: [W]hat did you determine eventually was the approximate proportion of the lateral to the longitudinal force?
…
A: I think the longitudinal is about 18 or 19 kilometres per hour and the lateral is about 6 kilometres per hour change in velocity.

Phase A	Both SINGH and DUONG are faced with red circles.
Phase B	B1	SINGH is faced with a red circle. DUONG is faced with a red circle and green right turn arrow.
	B2	SINGH is faced with a red circle. DUONG is faced with a green circle and green right turn arrow.
	B3	SINGH is faced with a green circle. DUONG is faced with a red circle.
Phase C	Both SINGH and DUONG are faced with green circles.
Phase D	Both SINGH and DUONG are faced with red circles.
Phase E	E1, E2, E3		Both SINGH and DUONG are faced with red circles.

[2022] VSC 816

20 December 2022