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Guy chases bike thief & retrieves bike

Discussion in 'General Motorcycling Discussion' at netrider.net.au started by smee, Sep 23, 2012.

  1. http://stonnington-leader.whereilive.com.au/news/story/street-watch-99-10/



     
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  2. Now watch this poor bastard get charged by the cops for doing what they couldn't.
     
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  3. Could have easily been a different outcome. I remember an incident a few years back in Central Vic (Kyneton) where the owner of a stolen KTM chased the thief down with their car and killed them. The owner was charged with murder, but not sure what the outcome of the court case was (never saw any mention of it in the media).
     
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  4. I was wondering about that too... really hope not. Good on him. Pitty the prick got away.
     
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  5. Best one was the bloke that stole some bad boys Harley, took off, stacked it, impaled himself on a fence. Only to have the owner come up, belt him whilst still impaled, take his wallet (i.e address), and reclaim his bike.
     
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  6. well done on the guy getting his bike back... but its a slippery slope when it comes to taking the law into your own hands, hopefully the bike owner doesn't get into any trouble and the bike thief gets caught.

    i've always wondered if you spotted someone on your bike and called the cops and said you were following them and could they come help (do their job) and get it pulled over etc.

    would they actually turn up? (has anyone got any stories that would answer this for me?)
     
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  7. You would think they would. If you really want cops to follow in a hurry, just say the thief is suspected to be carrying a firearm/weapon/saucepan after stealing said vehicle. Pretty sure that's a priority crime...
     
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  8. Can't charge him for running himself off the road surely? No one else was identified after all?
     
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  9. And travelling 68.
     
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  10. just tell them he is speeding and see them get there in 6 seconds flat
     
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  11. Or tell them he's riding on the footpath near a school. :wink:
     
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  12. Well not bike related, but a few years ago now these dipshits were vandalising stuff in my area a few weekends in a row. Kicking in fences, stealing tyres, scumbag stuff. One weekend they kicked in one of the doors of my '72 Fairlane. The next weekend I waited for them to show up, and sure enough they went and kicked in another door on my car. I immediately tore out of the house while they ran down the street to a getaway car. I jumped in my dads car and followed them, never losing sight of them. Called the cops, told them I was following the vandals and had the license plate number. They refused to even take the rego, flat out refused to write it down and check it out, because I "had no proof that it was them in the car". "But I watched them get in the car, and I haven't lost sight of them", "Sorry sir, nothing we can do" *hang up*
     
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  13. That's bullshit. It falls under 'finds committing'. You saw them commit the act. You haven't let them out of your sight. You could've filed a complaint over that one.
     
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  14. That happened on 26-12-2006.



    Justus.
     
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  15. I did speak to someone else the next day, they said pretty much the same thing, I rage quit and gave up
     
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  16. Do you know if they were found guilty of murder or not?
    The local papers never seemed to bother following up on that story.
     
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  17. Murder might have been a hard charge to make stick.
    A plea bargain perhaps.
     
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  18. Google turned up the following from ABC News:-

    Kyneton man not guilty of culpable driving

    Posted Fri Jun 11, 2010 11:45am AEST


    A Victorian man has been found not guilty by a Supreme Court jury over a fatal collision three-and-a-half years ago.

    Troy Fieldman, 38, of Kyneton, 87 kilometres north-west of Melbourne, was accused of culpable driving causing death after his car hit motorcyclist Dennis Yannopolous of Malmsbury.

    Mr Yannopolous had earlier taken the motorcycle from Fieldman's garage.

    During the trial, Mr Fieldman's defence lawyer argued the collision was accidental after Mr Yannopolous suddenly braked.

    He said Mr Yannopolous had recently taken cannabis and alcohol and may have been trying to turn onto a dirt track to avoid being caught with the bike.
     
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  19. R v Fieldman (Ruling No 1 & 2)

    R v Fieldman (Ruling No 1) [2010] VSC 257 (7 June 2010)

    IN THE SUPREME COURT OF VICTORIA
    AT BENDIGO
    CRIMINAL DIVISION


    JUDGE: KAYE J
    WHERE HELD: Bendigo
    DATE OF HEARING: 7 June 2010
    DATE OF RULING: 7 June 2010


    CRIMINAL LAW – Evidence – Culpable driving – Whether previous criminal record of deceased admissible – Deceased riding stolen bike – Factual issue whether deceased suddenly slowed bike before impact – Relevance of prior convictions to possible decision by deceased to try to access escape route – Evidence admitted – Evidence Act 2008 (Vic) ss 55(1), 135(a).


    HIS HONOUR:

    1. In this case, the accused man is charged with one count of culpable driving causing the death of Dennis Yannapoulos on 25 December 2006.
    2. Shortly before the incident which caused Mr Yannapoulos’ death, the accused man’s trail bike had been stolen from his property at Kyneton. When the accused discovered that theft, he also heard the sound of the bike travelling on the highway. Accordingly, he set off in pursuit of it. The accident, which resulted in the death of Mr Yannapoulos, occurred at the western end of the Campaspe River Bridge at Burton Avenue which becomes Piper Street at that point at Kyneton. It occurred when the front of the station wagon driven by the accused man came into collision with the rear of the trail bike which was then being driven by Mr Yannapoulos. In the course of the collision, Mr Yannapoulos fell to the ground and he died at the scene of injuries which he sustained as a result of the collision.
    3. The issue which has been raised for me is whether counsel, on behalf of the accused, is entitled by cross-examination to adduce evidence as to a fairly extensive list of previous criminal convictions of the deceased man, Mr Yannapoulos. In particular, the issue which has been raised is whether that evidence would be relevant to any fact which is in issue in this case.
    4. Ms Fox, who appears with Mr Hill of Queen’s Counsel, on behalf of the accused has submitted that the evidence as to the deceased’s man previous convictions is relevant to the manner in which he was driving the motor bike almost immediately before the moment of impact.
    5. At four places, in his record of interview, in his answers to questions 83, 92, 193 and 361, the accused told the police that almost immediately before impact, Mr Yannapoulos appeared to either slow down or stop, as if he intended, or might have been intending, to turn left from the roadway onto a track which was nearby. Ms Fox submitted that the defence wished to contend that there was a reasonable possibility that immediately before the collision Mr Yannapoulos dramatically slowed his motor bike, because he was looking for an escape route. In that connection, she referred me to the evidence that there is a path which can be accessed immediately north of the highway and which leads along the Campaspe River. That path passes south under the bridge and from there access can be obtained to streets such as Powlett Street. Ms Fox submitted that evidence of the convictions of Mr Yannapoulos is relevant because it adds to the probabilities that he may have been aware that if he was caught with a stolen bike it was likely, in those circumstances, that he would receive a term of imprisonment. She submitted that the previous criminal history of the deceased thus provides an explanation as to why he might have wished to access the escape route along the path, rather than continue along the highway.
    6. Pausing there, it is clear that the issue whether, Mr Yannopoulos slowed down his vehicle immediately before impact, is a very relevant, and important, issue in the trial. If the jury concluded that there is a reasonable possibility that Mr Yannopoulos did slow down the bike in that way, it would provide an explanation as to why the accused man came into collision with him. Thus, the evidence would be relevant to the issue of the causation of the accident. Indeed in this respect the Crown case was opened on the basis that the accused man had deliberately run into the back of the trail bike.
    7. Secondly, Senior Sergeant Bellion has given evidence that on his estimate the speed of the trail bike was 20 kilometres per hour less than the speed of the vehicle driven by the accused man at impact. Clearly if the bike had markedly reduced its speed before impact, that would radically affect Mr Bellion’s calculations of the speed at which the station wagon driven by the accused man was travelling at the time of impact.
    8. As I stated, the argument by Ms Fox is that the evidence of Mr Yannopoulos’ previous convictions is relevant, because it bears on the probabilities as to why Mr Yannopoulos may have sought to access the escape route, rather than continuing along the highway. It was submitted that his long list of previous convictions, including terms of imprisonment, increased the probabilities, or was at least capable of increasing the probabilities, of Mr Yannopoulos intending and be minded to escape rather than risk being caught in the heart of Kyneton while being pursued by another vehicle.
    9. In response, Ms Barbagallo, who appears on behalf of the prosecution, has submitted that the argument made by Ms Fox is based on a number of factual assumptions, which are unsupported by the evidence. In particular, she submitted that there were some seven assumptions contained in that argument, namely:

      (1) That the deceased man was an experienced motor bike rider.
      (2) That the deceased man stole the bike on which he was riding at the time of the accident.
      (3) That the deceased man knew that he was riding a stolen bike.
      (4) That the deceased man knew he was being pursued by the accused.
      (5) That the deceased was concerned about returning to gaol.
      (6) That the deceased knew the trail or track running along the Campaspe River; and
      (7) That the deceased was concerned about continuing through the township of Kyneton because it increased his chances of apprehension.​
    10. Dealing with each of those issues, it seems to me firstly that it is not relevant whether or not the deceased man was an experienced motor bike rider, in order to sustain the basis of relevance contended for by Ms Fox. It is sufficient if the evidence reveals at least a reasonable possibility that the deceased man had sufficient capabilities to slow the bike and to access an escape route which might have been available to him. The evidence is that the deceased was driving the motor bike on a highway at fairly high speeds on the night of the collision. In those circumstances in my view, would be open to a jury to rationally infer that the deceased had sufficient capabilities in order to perform the manoeuvre attributed to him by the accused in his record of interview.
    11. The second and third assumptions identified by Ms Barbagallo are that the deceased man had either stolen the bike or knew that he was riding a stolen bike at the time of the accident. Again in this case, a jury in the state of the evidence, would be entitled to infer that there is at least a reasonable possibility that the deceased had either stolen the bike, or at the very least, knew that he was riding a stolen bike at the time of the collision.
    12. The bike had been stolen from the premises of the accused on the evening; the deceased had it in his possession, at most, a few hours after that and was riding it along a highway. It will be a matter for the jury whether they accept that the deceased knew that it was stolen, or indeed had stolen the bike. But in my view, it is reasonably open to them to rationally infer that he had done so.
    13. The fourth assumption argued by Ms Barbagallo was that the deceased knew that he was being pursued by the accused man. In my view, it is open to the jury to infer that he may well have had that knowledge. In his record of interview the accused stated that he was driving with his lights on high beam and that he had the motor bike in his view. Indeed on his record of interview he was closing on the bike, shortly before the accident.
    14. It is also relevant that when the accused came out of Deep Lead Lane, he first turned to the left to travel in a westerly direction and he then executed a U-turn when he saw the motor bike travelling east towards Kyneton. He then pursued the motor bike, each of them overtook a vehicle that was driven by the witness Erin Lewis and during that period of time the accused as I stated, appears to have closed in on the motor bike.
    15. In those circumstances it would be open to the jury to rationally infer that the deceased might well have at least apprehended that he might have been followed and pursued at the time of the accident.
    16. The next assumption identified by Ms Barbagallo is that the deceased man was concerned about going to gaol. She submitted that there was nothing in the deceased man’s criminal record which would suggest he was concerned about being incarcerated. In fact, she submitted, all the evidence is to the contrary and that his previous convictions demonstrate that gaol was no deterrent to him.
    17. In my view, Ms Fox’s response to that is appropriate. It may well be that the previous terms of imprisonment did not act as a deterrent to Mr Yannopoulos, but that does not mean that he may not have been concerned about serving another term of custody. I must say that I would think that a jury would find it rather startling that any person would not be concerned about going to gaol, even a person with a reasonably substantial list of previous convictions. Thus, in my view, it would be open to the jury to act on the basis that the deceased, particularly given his list of previous convictions, did have a real concern about going to gaol if he was caught.
    18. The next and sixth assumption, argued by Ms Barbagallo, is that the deceased man knew of the trail or track running by the Campaspe River. In respect of that matter, the defence would be relying on a process of inference. They would argue that the track was reasonably obvious to anyone familiar with the area, and that from his driving on that night, it would appear Mr Yannopoulos had at least some familiarity with the area. The defence will also point to the fact that Mr Yannopoulos’ brother lived in Powlett Street, which can be accessed from that track.
    19. Again, in my view, it would be open to the jury to act on the basis that the deceased might have known of the track leading along the Campaspe River. That again is a finding of fact which, in my view, it would be open to the jury.
    20. The seventh assumption, argued by Ms Barbagallo, is that the deceased was concerned about continuing through the township of Kyneton because it increased his chances of apprehension. Ms Barbagello pointed to the evidence of the witnesses Ms Sundblom and Mr Dickey, which indicated that the deceased may well have already been either into, or to the outskirts of, Kyneton shortly before the incident and, indeed, they passed a trail bike driven by a driver without any head gear on shortly before the incident.
    21. In my view, those matters would not, at least, stand in the way of a jury nonetheless logically considering that the deceased may have had a legitimate concern about going into the township of Kyneton, as he approached the bridge just before the accident.
    22. Firstly, as I said, it is open to the jury to accept that the deceased man may well have been apprehending that he was being pursued.
    23. Secondly, the evidence does not show that the person, who was on the trial bike actually entered the township of Kyneton, as distinct from crossing the bridge and then exiting it. And, thirdly, the jury may consider that the person who Ms Sundblom and Mr Dickey saw travelling west out of Kyneton may not have been the same bike rider as the deceased.
    24. In respect of each of the seven matters, which Ms Barbagallo submitted were assumptions, it may well be that the jury do not accept that the facts establish any of those matters, and Ms Barbagallo’s submissions to the jury are ultimately made out. However, in my view, for the reasons which I have just expressed, it would be open to the jury made to draw the conclusions sought by the accused in relation to each of those seven matters as a matter of rational inference. As the judges who are responsible for finding facts in this case, it would be entirely a matter of the jury whether they drew those conclusions or not, but, as I say, in my view it would be open to them to do so.
    25. I turn, then, to the question of the relevance of the evidence sought to be adduced by the accused. Section 55(1) of the Evidence Act 2008 provides that evidence which is relevant in a proceeding is evidence, which if accepted, could rationally affect directly or indirectly the assessment of the probability of a fact in issuing a proceeding.
    26. In my view, that test is at least as broad as the test of relevance at common law, if not more so. Two points could be noted about s 55. First, in order to be relevant, the rational effect of the evidence on the assessment of the probabilities can be either direct or indirect.
    27. Secondly, s 55(1) does not provide that the evidence must affect the probabilities, but, rather, it is sufficient if the evidence could have a rational effect either directly or indirectly on an assessment of the probabilities.
    28. In her submissions to me, Ms Fox drew my attention to a number of cases, in which, at common law, it has been held that previous conduct by a deceased may be relevant to the probabilities whether the deceased acted in a manner described by the accused shortly before the deceased’s death.
    29. Thus, it has been held that evidence of a previous history of violence by a deceased may be relevant as to whether the deceased did act in a violent manner alleged by the accused in a case in which an issue of self-defence is raised. See, for example, Re Knowles[1]; R v Besim[2]; and R v PP[3].
    30. In each of those three cases, the evidence, which was held to be admissible, was considered relevant to prove the propensity of the deceased to behave in a manner, in which it had been alleged by the accused, that the deceased was acting shortly before the deceased’s death.
    31. However, the admissibility of the evidence of previous conduct of the deceased is not confined to evidence adduced for that purpose alone. Rather, that evidence is admitted, if it has the capacity to bear rationally on the probabilities of whether the deceased acted in a manner alleged by the accused. In that way, evidence which might bear on that point is relevant both at common law and under s 55(1) of the Evidence Act.
    32. In this case, as I have submitted, the jury are entitled to infer that the deceased, Mr Yannopoulos, either stole the bike or knew that the bike was stolen. The jury are entitled to infer that at the time of the collision that he believed he was being pursued and the jury are entitled to infer that at that time he knew, or might have known, of the existence of the escape route along the track.
    33. If the jury were to accept each of those propositions from the evidence, in my view the evidence as to the intention of the deceased at the point of the impact in relation to his driving would be relevant. That intention of course could only be proven by a process of inference. In my view, if the jury accepted that the deceased knew he was on a stolen bike, knew that he was being pursued and knew of the escape route, then the evidence as to his previous convictions is capable of affecting a rational assessment of the probabilities, whether the deceased did decelerate shortly before impact in the manner suggested by the accused in his record of interview.
    34. Of its own, theft of a motor bike is not the type of offence in respect of which an offender would ordinarily expect to be sentenced to an immediate term of imprisonment. A jury from its own general knowledge might well be aware of that fact. However, clearly the position would be different if the offender had a substantial history of previous convictions, particularly if they involved previous sentences of imprisonment. From their general knowledge, the jury would be entitled to infer that a man, with such a previous history as Mr Yannopoulos, might well have been concerned that if he had been apprehended with the stolen bike, he may well have faced an immediate term of custodial imprisonment.
    35. Thus, in that way, the previous convictions of Mr Yannopoulos would have the capacity to bear rationally on the assessment of the probabilities, whether immediately before impact Mr Yannopoulos was minded to or felt the need to take the slightly risky course of slowing down, in order to gain access to the escape route which was available to him. In other words, in my view, a jury would be entitled to consider that that fact added to the probabilities that Mr Yannopoulos might have slowed down his vehicle to leave the highway in the manner stated by the accused in his record of interview. For those reasons, the evidence as to Mr Yannopoulos’s previous convictions is relevant.
    36. Ms Barbagallo submitted that if the evidence is relevant, its probative value is outweighed by a potential prejudice to the Crown and therefore it should be excluded under s 135(a) of the Evidence Act. She submitted that the relevant prejudice is that the jury, apprised of the lengthy criminal history of Mr Yannopoulos, might consider that they should not care whether or not the accused was guilty of the offence charged because, as she put it, the value of Mr Yannopoulos’ life was worth less than might otherwise have been the case.
    37. In my view thus stated, the prejudice is most unlikely to arise in this case. Indeed, I would think it inconceivable, even without a direction from me, that a jury would be minded to use the evidence in that way. Such a proposition in my opinion, strikes at the basic instinct of fairness with which juries have carried out their roles throughout the history of the common law.
    38. However, given the concern of the Crown in this case I would be minded to give a direction to the jury that they ought not to indulge in the type of reasoning which Ms Barbagallo is concerned they might be lured into. Again, the history of jury trials in this State is that juries are amenable to, and faithful to, directions of that type.
    39. On many occasions, where relationship evidence is put before a jury, that evidence can be quite prejudicial to an accused, and a direction as to its potential misuse is given to a jury. The history of verdicts in this State is such that that direction is ordinarily sufficient to offset any potential prejudice which might otherwise be occasioned to the Crown.
    40. In my view, if there is any unfair prejudice to the Crown, and indeed, I doubt that that is the case, but if there is, such unfair prejudice would well be offset by an appropriate direction given to the jury. In terms of s 55(1) of the Evidence Act, the evidence is potentially relevant. Whether the jury considered that it bears on the probabilities is a matter for them and not for me, but in my view they are capable of using the evidence in the manner contended for by the accused.
    41. For those reasons, the evidence should be admitted.



    R v Fieldman (Ruling No 2) [2010] VSC 258 (8 June 2010)

    IN THE SUPREME COURT OF VICTORIA
    AT BENDIGO
    CRIMINAL DIVISION


    JUDGE: KAYE J
    WHERE HELD: Bendigo
    DATE OF HEARING: 8 June 2010
    DATE OF RULING: 8 June 2010


    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).



    HIS HONOUR:

    1. 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.
    2. 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.
    3. 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.
    4. 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.
    5. 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).
    6. 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).
    7. 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.
    8. 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).
    9. 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. (See R v Doney).
    10. 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.
    11. 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. (See R v Cengiz).
    12. 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).​
    13. 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 (See R v Doney).
    14. 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.
    15. 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.
    16. 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).
    17. 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. (See R v Burnside).
    18. 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.
    19. 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.
    20. 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.
    21. 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.”
    22. 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.
    23. 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.
    24. 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.
    25. 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.
    26. 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.
    27. 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.
    28. I therefore conclude there is no case for the accused man to answer on the basis of recklessness constituting culpable driving.

      ****************


    Justus.
     
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  20. Are you a lawyer or just a law fanatic?
     
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