R v Fieldman (Ruling No 2)
[2010] VSC 258
•8 June 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT BENDIGO
CRIMINAL DIVISION
No. S CR 2008 1737
| THE QUEEN |
| V |
| TROY ANTHONY FIELDMAN |
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JUDGE: | KAYE J | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 8 June 2010 | |
DATE OF RULING: | 8 June 2010 | |
CASE MAY BE CITED AS: | R v Fieldman (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 258 | |
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CRIMINAL LAW – Trial – No case submission – Accused charged with culpable driving causing death by (a) recklessness and (b) gross negligence – No case submission on culpable driving by recklessness – Principles – Submission upheld – Crimes Act 1958 (Vic) s 318(2)(a)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C Barbagallo | Office of Public Prosecutions |
| For the Accused | Mr I Hill QC with Ms A Fox | C D Traill Lawyers |
HIS HONOUR:
The accused man, Troy Anthony Fieldman, has been charged with one count of culpable driving causing the death of Dennis George Yannopoulos at Kyneton on 25 December 2006. The charge on the presentment charges Mr Fieldman with culpable driving under s 318(2)(a) and(b) of the Crimes Act, namely on the basis that he drove his vehicle recklessly or negligently and thereby caused the death of Mr Yannopoulos.
The accident occurred shortly after 11 pm on the evening of 25 December 2006. At that time Mr Yannopoulos was driving a trail bike, which had been stolen from the home of Mr Fieldman, in an easterly direction on Burton Avenue-Piper Street, Kyneton, and was either crossing or about to cross the bridge over the Campaspe River.
The accused man was driving his Ford station wagon in pursuit of the trail bike. The accident occurred when the front of the station wagon driven by the accused man came into collision with the rear wheel of the trail bike ridden by Mr Yannopoulos. As a result of the impact, the trail bike became destabilised and went to the ground and as a consequence Mr Yannopoulos suffered injuries from which he died at the scene.
The Crown case is now closed. Mr Hill of Queen’s Counsel, who appears with Ms Fox for the accused man, has submitted that I should take from the jury the form of culpability charged on the presentment constituted by reckless driving.
The charge on the presentment is of course a single charge and not two charges of culpable driving, however culpable driving has been charged on the two bases to which I have referred. Section 318(3) requires that the presentment specify, as it does in this case, the particular form or forms of culpability alleged. It is accepted that notwithstanding that two forms of culpability are charged, or specified, nonetheless there is only one charge, that of culpable driving. (See R v Horvath[1]).
[1](1972) VR 533.
If both forms of culpability went to the jury, then I would need to direct the jury that they must be unanimous in respect of one or other form or both in order to convict the accused. (See R v Beech[2]).
[2](1994) 75 A Crim R 447 at pp 452 and following.
Although, strictly speaking, this may not be a “no case” submission, it would seem to me that the principles which apply to such a submission ought to apply in respect of the submission made by Mr Hill. There is no direct evidence as to the requisite mental awareness which constitutes recklessness in this case and therefore if the jury were to conclude such recklessness, it would only do so by a process of inference.
The principles which apply in such a case, that is a “no case” submission in a case involving inferences, are well settled and will be stated shortly. Firstly, the question is not whether the jury should or might draw the guilty inference against the accused; rather, the test is whether on the evidence as it stands a jury could lawfully find the accused guilty on the basis of recklessness. (See May v O’Sullivan[3]).
[3](1955) 92 CLR 654 at 658.
Secondly, even if the Crown case is weak it should be left to the jury, unless on the evidence as it stands the accused could not be lawfully convicted on the basis alleged by the Crown. (R v Doney[4]).
[4](1990) 171 CLR 207 at 215.
Thirdly, the judge should not take a case from a jury simply on the basis that he considers that at the close of the Crown case the Crown has failed to exclude an hypothesis consistent with innocence. (Attorney-General Reference No.1 of 1983[5]).
[5](1983) 2 VR 410 at 415.
Fourthly, the judge may only take a case from a jury if on the evidence there remains open an inference consistent with innocence which could not be rationally excluded by the jury. (R v Cengiz[6]).
[6](1998) 3 VR 720 at 735, Harper J.
That is, the judge should only take a case based on inferences from the jury if the jury could not rationally conclude:
(a)That the guilty inference contended for by the prosecution was reasonably open; and
(b)That that inference is the only reasonable inference available on the evidence. (See decision of South Australian Full Court in Case Stated by Director of Public Prosecutions No.2 of 1993[7]).
[7](1993) 70 A Crim R 323 at 327, King CJ.
Finally, in considering an application such as made by Mr Hill, I, as a trial judge, must bear in mind that the drawing of inferences is, quintessentially, the role of juries as the sole judges of the facts (R v Doney[8]).
[8]Above at p 214.
So in order to uphold Mr Hill’s submission, he would need to establish that on the evidence as it stands a jury could not rationally conclude that the only reasonable inference is that the accused drove his vehicle in a reckless manner and by that reckless conduct he caused the death of the deceased.
Recklessness is defined in s 318(2)(a) of the Crimes Act in the following way: A person drives a vehicle recklessly if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving.
It is accepted that the same mental state is required for recklessness under s 318(2)(a) as is required for the crime of murder, namely, that the accused must commit the relevant act with the knowledge that he would thereby probably cause the death of or really serious injury to his victim. See R v McGrath.[9]
[9][1999] VSCA 197 at para 15 Callaway JA.
Thus, in order to constitute recklessness in this case, the accused must be proven beyond reasonable doubt to have known that by his driving he would probably cause the death or really serious injury to another person. Further, the Crown must prove beyond reasonable doubt that the risk which the accused adverted as the probable risk created by his driving, was the risk which actually eventuated and caused the victim’s death. In other words, it is not sufficient that the accused was aware of one risk, but the death was caused by a different and unforeseen risk. R v Burnside[10].
[10][1962] VR 96 at pp 97, 98.
In this case, Mr Hill foreshadowed the submission he was to make today, and in response Ms Barbagallo, who appears on behalf of the Crown, helpfully compiled detailed written submissions as to how she would submit the Crown would put the case of recklessness to the jury. However, it has emerged in argument, and as Mr Hill correctly pointed out, a large number of the matters referred to by Ms Barbagallo did not constitute acts of recklessness which a jury could conclude were causative of the death of Mr Yannopoulos.
In other words, a number of the risks, which Ms Barbagallo submitted the accused would have been aware of by reason of the facts to which she referred, were not the risk which ultimately came to pass, namely, the front of the accused’s vehicle coming into contact with the rear of the trail bike driven by Mr Yannopoulos in the manner in which it did.
Accordingly, Ms Barbagallo, having given the matter further consideration, submitted to me that the facts on which the jury could infer the requisite knowledge of risk by the accused were the facts that the accused shortly before the point of impact was driving too quickly and too close behind the trail bike driven by Mr Yannopoulos. She submitted to me that in those circumstances the accused, in her words, must have had an awareness that if Mr Yannopoulos slowed down there would be a rear end collision.
In that context she referred me, in support of her argument, to the answer given by the accused man in his record of interview at Question 313, where he described his approach to the bridge on which the accident occurred, saying, “I was a fair way away but when I got to the bridge he was basically - he must have been slowing down. Then I slowed down and like I know that motorbike only does 90 Ks max, so I can’t say I’ve - was - there’s no way I would have - you know, if he was slowing down I would have had time to brake.”
In my view, the matters to which Ms Barbagallo has drawn my attention are not sufficient evidence on which a jury could rationally conclude beyond reasonable doubt that the accused knew that there was a probable risk of the collision occurring, which actually occurred and resulted in the death of Mr Yannopoulos. The answer of the accused, at Question 313, does not assist the Crown case in that regard. It is clearly an admission made by the accused with the wisdom of hindsight and does not either expressly, or by implication, speak as to the accused’s state of mind at the time at which he approached the bridge.
Thus the Crown case in respect of recklessness must, if at all, be based solely on a process of inference by the jury. In other words, the Crown case could only succeed if a jury could rationally infer from the evidence that the only reasonable inference from the facts was that as he approached the bridge the accused knew that there was a probable risk that he would collide with the bike as a result of the bike suddenly decelerating in the manner suggested by him both to Senior Constable Cottingham at the scene and in his record of interview.
It is not sufficient that it is possible that the accused adverted to such a risk, nor would it be sufficient for the jury to conclude that the accused knew of a possible risk of that eventuality occurring. Rather, the jury must be able to rationally infer from the facts in this case that as he approached the bridge the accused, himself personally, knew that there was a probable risk of death occurring or really serious injury occurring in the manner in which it did occur in this case.
As I stated, in my view there are no simply no facts proven on the evidence from which a jury could rationally draw that conclusion as the only reasonable inference. At best in my view, the jury could only speculate that the accused man might possibly have adverted to such a possible risk. However, such a process is far removed from a jury properly and correctly inferring as the only reasonable inference, that the accused’s state of mind at the time was that he knew there was a probable risk of death or really serious injury, which in substance came to pass in this case.
For those reasons, in my view there is no evidence at all on which the form of culpability, constituted by recklessness, could be properly put to the jury. In reaching that conclusion, I should say that I do note that enquiries made by Ms Barbagallo reinforced the experience which has been put to me by Mr Hill, and indeed, my own experience, that this form of recklessness is extremely rare in charges of culpable driving. It would seem to me that far more would be required to establish that form of culpability than that which has been put forward in this case.
I reach the conclusions which I do, fully conscious of the principles to which I earlier referred, that is, that the drawing of inferences is quintessentially the role of the jury and not the judge. However, in my view there is no evidence from which a jury could lawfully draw the requisite inference.
I therefore conclude there is no case for the accused man to answer on the basis of recklessness constituting culpable driving.
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