District Court New South Wales Medium Neutral Citation: R v Griffiths (No 2) [2024] NSWDC 426 Hearing dates: 20 June 2024 Date of orders: 26 June 2024 Decision date: 26 June 2024 Jurisdiction: Criminal Before: Fitzsimmons SC DCJ Decision: The evidence of the experts Professor Kristen Pammer and Dr Hayley Cullen is relevant. Further issues as to the admissibility otherwise to be determined. Catchwords: CRIME – pre-trial issues – dangerous driving causing death – admissibility (relevance) of expert reports - honest and reasonable mistake of fact - inattentional blindness - change blindness Legislation Cited: Crimes Act 1900, s 52A Evidence Act 1995, s 55 Cases Cited: Adam v The Queen (2001) 207 CLR 96; 123 A Crim R 280; [2001] HCA 57 CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 Jiminez v the Queen (1992) 173 CLR 572, 579; [1992] HCA 14 McBride v The Queen (1966) 115 CLR 44 R v SG [2017] NSWCCA 202 Rummukainen v The Queen (2021) 97 MVR 134; [2021] NSWCCA 188 Category: Procedural rulings Parties: Rex Samuel Griffiths Representation: Counsel: Mr Kondich (Accused) Solicitors: Director of Public Prosecutions NSW (DPP) (Crown) Lambert Legal (Accused) File Number(s): 2022/00187273 Judgment 1. The accused is charged, by one count on an indictment, that: 1. On 27 June 2022, at Wollongong in the State of New South Wales, did drive a vehicle, namely, a Premier Illawarra bus registration MO895, when it was involved in an impact occasioning the death of Danuta Kozak, and at the time of impact Samuel Griffiths was driving the vehicle in a manner dangerous to other persons. 1. The accused has pleaded not guilty, and the matter is listed for trial at Wollongong District Court commencing 14 October 2024. 2. The accused seeks to rely on the expert reports of Dr Hayley Cullen and Professor Kristen Pammer. The Crown objects to both reports being admitted on several grounds including relevance, expertise and probative value/prejudicial effect. 3. It was considered appropriate that the Court initially rule on the threshold issue of relevance. If it is determined that the evidence is relevant the Crown will then consider its position as to the further grounds of objection, including whether the experts should be called on the voir dire to determine their admissibility otherwise. The Crown case 1. There is no issue as to the objective facts the Crown seeks to prove in circumstances where the events leading to the death of the deceased were captured on multiple CCTV devices, including cameras installed in the bus being driven by the accused. 2. At about 10:00am on 27 June 2022, the accused was driving a bus north on Corrimal Street, Wollongong on approach to the intersection with Crown Street. As the accused approached the intersection, he was faced with a red traffic arrow waiting to turn right into Crown Street. 3. At the same time, the deceased was waiting to cross at a clearly marked and traffic light controlled pedestrian crossing on the eastern side of the intersection. As the accused waited for the light to turn green, the deceased was given the green walk signal and proceeded to cross. When the deceased was about halfway across the crossing, the walk signal began to flash red, and the deceased continued to cross. At this point, the red arrow facing the accused had turned off, leaving a green circle, allowing the accused to turn right when the pedestrian crossing was clear and giving way to oncoming traffic. 4. The accused began to make a right turn into Crown Street. The front left side of the accused's bus collided with the deceased, who was still crossing the pedestrian crossing. Despite first-aid being rendered at the scene of the accident, the deceased was conveyed to Wollongong Hospital where she was pronounced life extinct. An autopsy report concluded that the cause of death was multiple injuries to the head and chest. 5. There is no issue, consistent with the CCTV footage, that at all relevant times the deceased was physically capable of being seen by the accused. Indeed, CCTV footage from the bus shows the accused looking out the driver's side window as he stops at the red traffic control arrow. The accused is looking towards the side of the road where the deceased is located. The footage taken from the bus also depicts the deceased beginning to cross the pedestrian crossing whilst at the same time the accused is still looking to his right through the side window. The footage further shows the accused beginning to move forward and commence his turn into Crown Street whilst the deceased is seen continuing to cross the middle of lanes one and two. At this time the accused is seen looking straight out the front window. A split-second later the deceased is impacted. Relevance 1. Section 55 of the Evidence Act 1995 provides as follows: 55 Relevant Evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to-- (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. 1. The relevance of the evidence is to be determined on the assumption that the tribunal of fact accepts the evidence: Adam v The Queen (2001) 207 CLR 96; 123 A Crim R 280; [2001] HCA 57. 2. In R v SG [2017] NSWCCA 202, Bellew J (with whom Hoeben CJ and McCallum J agreed) observed: – "[29] The use of the word "could" in s. 55 means "it is possible that it may". It follows that s. 55 is to be given a wide interpretation: Nye v State of New South Wales & ors [2002] NSWSC 1270 at [13]. The width of the section is also reflected in the fact that the effect of the evidence on the assessment of the relevant probability (namely the probability of the existence of a fact in issue) may be direct or indirect: Zaknic Pty Limited v Svelte Corp Pty Limited (1995) 140 ALR 701; [1995] FCA 1739 at [11]. Consistent with this approach, in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the majority (French CJ, Kiefel, Bell and Keane JJ) said (at [38]): [38] By s 55, evidence is relevant if it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." There can be no doubt that the reference to the effect that the evidence "could" have on proof of a fact is a reference to the capability of the evidence to do so. The reference to its "rational" effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact." The fact in issue 1. By reference to the elements of the offence of dangerous driving occasioning death, there is no issue that the accused was the driver of the vehicle, that the vehicle was involved in an impact with the deceased and that the impact caused her death. 2. The relevant fact in issue is whether, at the time of the impact, the accused was driving the vehicle in a manner dangerous to another person. 3. As the High Court observed in Jiminez v the Queen (1992) 173 CLR 572, 579; [1992] HCA 14: – "For the driving to be dangerous for the purposes of s 52A there must be some feature 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". 1. The Crown, in written submissions, articulated the Crown case on this issue as follows: – "5. It is [the] Crown case that the driving of the accused was dangerous at the time of the impact in that he turned right between oncoming traffic and through a pedestrian walkway without giving way to the pedestrian who was crossing the road. That is, the accused drove in a manner that created a real danger to other road users". 1. The offence is a strict liability offence: McBride v The Queen (1966) 115 CLR 44. This element, whether the manner of driving was dangerous, is to be assessed objectively having regard to all of the relevant circumstances including, in an appropriate case, the period prior to the impact. However, it is open for the accused to contend that he held an honest and reasonable, but mistaken, belief that it was safe for him to drive as he did, leading to the impact with the deceased: Jiminez at [581]. 2. I do not accept the accused's contention that given the Crown case, and the objective facts otherwise not disputed, that the statutory defence provided in section 52A(8)(c) of the Crimes Act 1900 is available in that clearly the death of the deceased was directly attributable to the manner in which the vehicle was driven. Expert evidence 1. The expert opinion of the two experts follows a common theme. The reports discuss the concept of inattentional blindness when driving which seeks to explain the phenomenon of an individual failing to detect objects or events which are otherwise in their direct line of sight. In the context of the Crown case, the accused claims that he did not see the deceased in the moments prior to impact despite being in his direct line of sight. In essence, despite the deceased being directly in his line of sight through the windscreen of the bus he in fact did not see her. The experts contend that the concept of inattentional blindness may explain the accused's assertion that he did not see the deceased despite being in his direct field of vision. The experts' process of reasoning somewhat differs their ultimate opinions in this respect are to the same effect. Dr Hayley Cullen refers to the concept of change blindness which may also explain the accused colliding with the deceased despite being in his direct line of vision. Consideration 1. Absent the issue of honest and reasonable mistake, I am not satisfied that the evidence could rationally affect the assessment of the probability of the existence of fact in issue in the trial. The relevant issue is whether the accused was driving the vehicle in a manner dangerous to another person. The test is an objective one. The offence is a strict liability offence in that it is unnecessary for the Crown to prove that the accused intended to drive his vehicle in a manner dangerous. Accordingly, the issue requiring determination by the jury, as the tribunal of fact, is to decide, having regard to the circumstances subsisting at the time, whether the accused's manner of driving was dangerous in all the circumstances. It is not otherwise alleged that the accused's actions were unconscious or involuntary. The expert evidence is only relevant to the accused's state of mind, that is, that he failed to notice or detect the deceased's presence despite being physically within his line of sight. 2. However, in supplementary submissions counsel for the accused contends that in addition to any statutory defence, the accused intends to raise the common law defence of honest and reasonable mistake. There is an evidentiary burden on the Defendant to adduce evidence in support of such a contention although ultimately the legal onus remains on the Crown to prove, beyond reasonable doubt, either that the accused did not honestly hold the belief, or that any such belief was not reasonable: CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 at [88] - [179]; Rummukainen v The Queen (2021) 97 MVR 134; [2021] NSWCCA 188 at [30] - [31]. 3. The Crown concedes in supplementary submissions that the evidence at least supports a contention that the accused did not see the deceased as she crossed the pedestrian lights when he commenced his right turn. Accordingly, the Crown accepts there is evidence from which it could be inferred that the accused honestly believed that the intersection was clear and did not hit the pedestrian. However, it is contended that the reasonableness of any such mistaken belief must be considered objectively. The Crown disputes the contention that the expert evidence assists in the assessment of whether the accused honestly and reasonably believed it was safe to undertake the right turn. 4. Given this ground of exculpation the fact in issue is whether the accused honestly and reasonably believed it was safe to proceed through the intersection. 5. The report of Dr Hayley Cullen identifies two different although related concepts as providing a possible explanation for the accused's alleged failure to see the deceased whilst executing the right turn. The two concepts are inattentional blindness and change blindness. 6. The report of Professor Kristen Pammer similarly seeks to explain the accused's failure to see the deceased as possibly explicable by the concept of inattentional blindness. 7. The expert opinions are relevant to the issue of whether the accused was operating under an honest and reasonable mistake. Whilst the concept of reasonableness involves an objective element, it remains necessary for the jury, as the tribunal of fact, to determine whether any mistaken belief was reasonable, having regard to all the circumstances. This necessarily includes consideration of whether any alleged inattentional blindness or change blindness, leading to the failure to see the deceased, was reasonable having regard to the factors the subject of discussion by each of the experts in their reports. 8. Accordingly, I am satisfied that the evidence of the experts is relevant, although other issues pertaining to admissibility remain to be determined. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 October 2024