Citation: R v Griffiths (No 2) [2024] NSWDC 426
Court: District Court of New South Wales
Date: 26 June 2024
Judge(s): Fitzsimmons SC DCJ
Background
The accused bus driver faced a single count of dangerous driving occasioning death under s 52A of the Crimes Act 1900. On 27 June 2022, while making a right turn at a signalised intersection in Wollongong, the front left side of his bus struck a pedestrian who was crossing on a marked, traffic-light-controlled pedestrian crossing. The pedestrian was transported to hospital and later pronounced dead.
The collision was captured on multiple CCTV cameras, including cameras mounted inside the bus itself. That footage showed that the deceased was physically within the accused's line of sight at the relevant time, yet the accused maintained that he did not see her before the impact occurred.
As a pre-trial issue ahead of the October 2024 trial, the accused sought to tender expert reports from Dr Hayley Cullen and Professor Kristen Pammer. Both reports addressed psychological phenomena, namely inattentional blindness and change blindness, as possible explanations for the accused's failure to perceive the deceased despite her being in his direct line of sight. The Crown objected to both reports on several grounds, including relevance, and the court ruled first on that threshold question.
Legal Issues
- Whether the expert reports of Dr Cullen and Professor Pammer were relevant within the meaning of s 55 of the Evidence Act 1995
- Whether the statutory defence under s 52A(8)(c) of the Crimes Act 1900 was available to the accused on the objective facts
- Whether the common law defence of honest and reasonable mistake of fact was available, and whether the expert evidence could rationally affect the jury's assessment of that defence
- Whether expert evidence going only to the accused's state of mind is relevant where the primary element of the offence is assessed objectively
Decision
Issue 1: The statutory defence under s 52A(8)(c)
The court rejected the accused's contention that the statutory defence under s 52A(8)(c) of the Crimes Act 1900 was available. The death of the deceased was directly attributable to the manner in which the vehicle was driven, and the objective facts established that position clearly (at [18]).
Issue 2: Relevance of the expert evidence absent the honest and reasonable mistake defence
Dangerous driving occasioning death is a strict liability offence: the manner of driving is assessed objectively, and the Crown need not prove any intent to drive dangerously (at [17]). The court found that, considered in isolation from any mistake defence, the expert evidence could not rationally affect the assessment of whether the accused drove in a manner dangerous to another person. The expert opinions went only to the accused's state of mind, which is not an element the jury must determine when applying the objective test (at [20]).
Issue 3: Relevance of the expert evidence to the honest and reasonable mistake defence
The accused confirmed he intended to raise the common law defence of honest and reasonable mistake of fact. An evidentiary burden rests on the accused to raise the defence, but the legal onus remains on the Crown to disprove it beyond reasonable doubt (at [21]). The Crown conceded that the evidence supported an inference the accused did not see the deceased as she crossed, and accordingly that he honestly believed the intersection was clear (at [22]).
The court found that the concepts of inattentional blindness and change blindness, as explained in the expert reports, were relevant to whether any mistaken belief was reasonable. Although reasonableness involves an objective element, the jury must assess it having regard to all the circumstances, and that assessment necessarily includes consideration of whether any alleged failure to perceive the deceased was itself reasonable in light of the expert evidence (at [26]-[27]).
Orders Made
- The evidence of Professor Kristen Pammer and Dr Hayley Cullen is relevant.
- Further issues as to the admissibility of the expert evidence otherwise remain to be determined.
Key Takeaways
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Expert evidence concerning inattentional blindness and change blindness can satisfy the relevance threshold under s 55 of the Evidence Act 1995 where a defendant raises the common law defence of honest and reasonable mistake in a dangerous driving prosecution, because the jury must assess the reasonableness of any mistaken belief having regard to all circumstances (at [26]-[27]).
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Dangerous driving occasioning death under s 52A of the Crimes Act 1900 is a strict liability offence assessed by an objective standard; absent a mistake defence, expert evidence directed solely at an accused's state of mind does not rationally affect the existence of the fact in issue and will not satisfy the relevance test (at [17], [20]).
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Where the common law honest and reasonable mistake defence is raised, the evidentiary burden falls on the defendant to adduce supporting evidence, but the legal onus ultimately remains on the Crown to disprove the defence beyond reasonable doubt (at [21]).
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A ruling that evidence is relevant does not resolve all admissibility questions: the District Court explicitly reserved further grounds of objection, including expertise and the balance between probative value and prejudicial effect, for separate determination.
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CCTV footage establishing that an accused was physically capable of seeing the deceased does not necessarily foreclose a claim that the accused genuinely failed to perceive her; the court accepted that such footage may coexist with an honest belief that the path was clear (at [9], [22]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 , s 52A
- Evidence Act 1995 , s 55
Cases
- 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