R v Antoniazzo [2010] ACTSC 36

4. There are certain general directions to which I have regard. They are that, as far as the conduct of the trial is concerned, I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until, at the conclusion of the hearing, the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.

5. Wayne Rino Antoniazzo (the accused) had been charged with manslaughter at the time that he made the election for trial by judge alone. That charge was that on 1 January 2008, he unlawfully killed Amaranta Vrinalin Vega.

6. At the trial before me, a fresh indictment was presented. He was arraigned and pleaded not guilty to charges that:

... on the 1st day of January 2008 at Canberra in the Australian Capital Territory, [he] unlawfully killed Amaranta Vrinalin Vega.

AND IN THE ALTERNATIVE TO THE FIRST COUNT THAT on the 1st day of January 2008 at Canberra in the Australian Capital Territory, [he] by the culpable driving, namely negligently, of a motor vehicle, namely a blue 1986 VL Holden Commodore sedan, bearing New South Wales registration plates, APZ76M, caused the death of Amaranta Vrinalin Vega.

7. It is clear from agreed written submissions on the applicable law that the offence I should deal with is that of culpable driving causing death. No additional issue was raised to justify consideration of the accused's liability to the charge of manslaughter. At the conclusion of the prosecution case, Mr Doig, who appeared for the Director of Public Prosecutions, accepted that the prosecution case did not rely upon any further aspect that would make out a case for manslaughter different from the case put as to culpable driving. He put to the Court that the count of manslaughter was no longer pressed by the prosecution. In such circumstances, it is appropriate to record a not guilty verdict on the charge of manslaughter.

8. The matter then proceeded on the basis of admitted facts and the evidence of certain eye witnesses to the incident as well as the evidence of Sergeant Dauth as the police officer responsible for the investigation of the incident.

• That the accused drove the 1986 VL Commodore APZ76M on Mary Gillespie Avenue, Gungahlin, in the early hours of 1 January 2008;

• That the accused was driving the 1986 VL Commodore APZ76M when it drove over Amaranta Vrinalin Vega who was lying on the roadway of Mary Gillespie Avenue, Gungahlin;

• That as a result of being impacted by the 1986 VL Commodore APZ76M, driven by the accused, Amaranta Vrinalin Vega died.

10. As far as the offence charged is concerned, the issue is the culpability of the accused in respect of his driving of the motor vehicle on this occasion.

11. The relevant provisions of s 29 of the Crimes Act 1900 (ACT) provide:

...

(2) A person who, by the culpable driving of a motor vehicle, causes the death of another person is guilty of an offence punishable, on conviction, by imprisonment for 7 years.

...

(6) For this section, a person shall be taken to drive a motor vehicle culpably if the person drives the vehicle -

(a) negligently; or

...

(7) For this section, a person shall be taken to drive a motor vehicle negligently if the person fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case.

12. The question of the proper direction that a jury should be given in respect of this offence has been the subject of consideration in the Victorian Court of Appeal.

13. In R v De'Zilwa [2002] VSCA 158; (2002) 5 VR 408, Charles JA said (at 423):

... the judge should direct the jury that the jury are required to find that the driving of the accused involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, and which involved such a high risk that death or serious injury would follow, that the driving causing death merited criminal punishment.

14. That test is clearly a higher standard than the standard of reasonable skill and care which might otherwise be said to constitute negligence.

15. As far as negligence in the ordinary case is concerned, it requires reference to the standard of care to be expected of the ordinary prudent driver.

16. It should be borne in mind that s 6 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) creates the offence of negligent driving causing death.

17. Section 6(2) of that Act provides:

(2) In deciding whether an offence has been committed against subsection (1), the court must have regard to all the circumstances of the case, including -

(a) the nature, condition and use of the road or road related area where the offence is alleged to have been committed; and

(b) the amount of traffic on, or that might reasonably be expected to have been on, the road or road related area.

18. The distinction to be made between the negligence for culpable driving by driving negligently and negligent driving causing death is a question of degree.

19. In Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953 at [27], Johnson J said:

Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances. The distinction which may be drawn between driving negligently, driving in a manner dangerous to the public and driving of a kind which justifies a conviction for manslaughter is essentially a distinction in the degree of negligence appropriate to the offence, being a distinction in the degree of departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances.

20. In the ACT, the reference in this passage to driving in a manner dangerous can readily encompass the charge of culpable driving under consideration in the present case. I also point out that in the present case, I do not have before me a charge of negligent driving causing death as provided for under s 6 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT).

21. On Tuesday, 1 January 2008, at about 2.00 am, the accused, driving a 1986 VL Holden Commodore sedan, ran over his de facto partner, Amaranta Vrinalin Vega (Ms Vega), who was lying on the roadway at Mary Gillespie Avenue, Gungahlin. Ms Vega died of the injuries sustained by the impact.

22. On 31 December 2007, the accused and Ms Vega attended a family gathering for a New Year's Eve party at Ms Vega's aunt and uncle's home. They had driven from Sydney in the car that the accused had bought for Ms Vega three days before. The incident followed an intense argument between the accused and Ms Vega where the accused drove off in the car. It was the first time that the accused had driven the car. The accused told police that he went for the drive to "cool off". He returned to the street where the party was held and because he was unfamiliar with the area, he was looking for the light out the back of the house that he had left. Ms Vega was dressed in black tracksuit bottoms and a black tracksuit top with hood.

23. Mary Gillespie Avenue runs east/west and is a suburban street divided by a substantial median strip. The roadway in front of Ms Vega's aunt and uncle's home has a parking bay running the length of the five houses fronting that section of road. A single lane for one-way traffic travelling east comprises the balance of the roadway. The other side of the median strip is one-way for traffic travelling west. There were some cars parked in the parking bay but the evidence does not say where they were positioned in the parking bay. The Commodore had been parked out the front of Ms Vega's aunt and uncle's house. The houses on that section of the road are all of the same design and are very similar in appearance.

24. Persons who witnessed the accident were called to give evidence.

25. Ms Vega's cousin, Drode Vega, heard a car take off and went outside to see. After he was outside, he saw a car's headlights turn into Mary Gillespie Avenue and saw something on the road which the on-coming headlights showed to be a body lying across the road. He described the car as "coming pretty fast around the corner" and that it maintained the same speed after turning the corner. His evidence was:

And you've said it was a person, did you recognise what you saw as a person immediately?---Yes, because the headlights sort of point - the headlights come across to the actual body, that's when I noticed there was a body there.

When was it that the headlights illuminated the body lying on the road?---Well - - -

Where was the car?---The car was practically just before hitting the body, yes. Because I practically follow - I was following the car with my eyes - - -

Yes?---And when he comes to that point that's when I noticed the body because there - sort of the lights - - -

26. I take it that there was a very short period of time between the headlights illuminating the body and the car striking it.

27. Ms Vega's aunt, Cleo Vega, says that she was a little behind Mr Drode Vega and saw a car coming around the corner but proceeded to go back inside the house. She heard a very loud bang and saw the impact.

28. Ms Gilbert was a next-door neighbour whose first storey bedroom overlooked Mary Gillespie Avenue. She says that she saw a Commodore pull out from the parking bay in front of her house and she saw what appeared to be a body lying on the road. After some time, she saw a car turn from Peters Street on to Mary Gillespie Avenue. She appears to assume that it was the same car that took off moments ago. She described the car driving over the body. She described the car as driving "in a constant rate from the point it turned [the corner]". Although she was asked to give an estimate of speed, I do not place any reliance upon such an estimate as no basis was given for it.

29. Rosa Lyons lived on the other side of Mary Gillespie Avenue. She was aware of the party across the road and of an argument between two people. She went back into her house and described several occasions where she went in and out of her house throughout that evening. She saw something on the roadway that "looked like a person lying there". As she watched, a car with its headlights on came around the corner. She said, "It just drove and hit the person lying on the road". She described the car as keeping a constant speed. She said she saw the person's head lift just before the impact.

30. Mr Mallitt was a delivery driver delivering newspapers in the Gungahlin area in the early hours of 1 January 2008. He completed deliveries on the south side of Mary Gillespie Avenue before turning around to deliver on the north side. As he approached the street on his left (which is the street from which the accused turned into Mary Gillespie Avenue) he saw an object in the centre of the road that he "thought it was a plastic bag or something like that". He slowed down because the object moved and he saw that it was a girl in dark clothing. She got up and moved onto the medium strip and "yelled at [him] for nearly running her over".

31. I have no reason to doubt Mr Mallitt's evidence. I do not think Ms Gilbert kept a constant observation of the roadway area. I consider that Ms Gilbert is mistaken in respect of the car which she saw pull out of the parking bay as being the same car that the accused was driving. Accordingly, I do not find that Ms Vega was lying on the road at the time that the accused left the parking bay. Otherwise, I have no reason to doubt Ms Gilbert's evidence.

32. Sergeant Dauth from the Australian Federal Police (AFP) Collision, Investigation and Reconstruction Team attended the scene in the early hours of that morning and gave evidence of his investigation of the scene. He provided photographs of the scene, the state of the lighting and observations as to the impact. He was of the view that the headlights of the Commodore were "quite serviceable". He drove the Commodore and found no defect in the workings of the vehicle that could have contributed to the manner in which the car was driven at the time of the incident.

33. Sergeant Dauth also conducted a "reconstruction" in the early hours of 2 March 2008. He used three police cadets to drive the Commodore. He placed an object of similar size, shape and colour on the roadway at Mary Gillespie Avenue and did not inform the cadets of this.

34. He instructed the cadets to drive around the streets of Gungahlin. From time to time he directed them to speed up as though they were late for a meeting. He did this before they turned into Mary Gillespie Avenue. In each case they all braked moderately and pulled up eight to 12 metres before the object that had been placed on the roadway.

35. There is, in my view, little evidentiary weight in such a "test". I shall later refer, in detail, to what the accused says he was doing at the time, but the whole test, in any event, was predicated on the fact that witnesses had said that the motor vehicle they observed accelerated out of the corner. That was not the evidence given by the witnesses called during the trial before me.

36. Without specific matters such as the constant speed that was observed by the witnesses that were called and taking into account the circumstance that the accused was looking for a house in an unfamiliar area where all the houses are of a similar design and colour, the test has to be of little value. At best, it establishes that a driver in the accused's position could have seen the object on the road. It does not establish that a driver in the accused's position who exercised reasonable care would have.

37. The same could be said of Mr Mallitt's evidence. However, even allowing for the greater time and lack of any distraction that Mr Mallitt may have had, the fact is he identified an object on the road in similar circumstances and conditions. Further, Ms Lyons' evidence confirms the visibility of Ms Vega to a person on the opposite side of Mary Gillespie Avenue at least the same distance as from a vehicle turning into that street. The effect of this evidence is to exclude the proposition that the driver of a motor vehicle turning into Mary Gillespie Avenue would not have been able to see Ms Vega on the roadway in the position that she was.

38. The accused did not give evidence. He is, of course, not obliged to do so. He was interviewed by the police and the transcript of that interview is in evidence before me. I also saw on DVD the initial commencement of the interview. Presumably that was done to assist me in some way to judge the accused's demeanour in the course of the interview. Although I gained an impression of the accused's concern for the predicament that he was in when giving the interview, it did not very much assist in the weight I should give to certain of the answers he gave as to his attitude and motives in the course of the events that led to these charges. There is, however, no independent evidence to contradict what he said in the course of the interview and I accept his explanations at least as constituting a reasonable possibility that exists as to the matters that he speaks of.

39. I have regard to the following questions and answers in that interview:

As to what the accused was doing when he drove off down Mary Gillespie Avenue:

Q90 On which - what's that street?

A90 Mary Gillespie. Okay. I went down there because I thought if - when she's always fighting me, I just, like, go for a walk, cool off or something like that. I don't like to sit there and ...(indistinct)... So I've taken off up here, come - come down to this road, stopped on - stopped there, took a breather.

Q91 Mm. What's that road called?

A91 Anthony Rolfe Avenue.

Q92 Mm.

A92 I came - then I've come back down and turned right - and turned left. I wasn't sure whereabouts the house was. I don't know the area. It's a very dark street. I don't think there's street lights. Um, I was travelling maybe thirty kilometres at the most, because I was trying to - I was trying to look at the houses. I was trying to recognise the house. And as I'm trying to look for the house, I've run over my girlfriend.

He further explained in the last part of his answer to Q144 and in his answer to Q169:

A144 ... And so I was, like, coming down here and I was looking for the house because I don't know the area, and I've come down and I was looking like this or this.

A169 And that's when I was sort of looking out for the house and trying to figure out whereabouts I was.

Q185 I mean, you were driving along the street looking for the numbers, you're saying. Were you looking - - -

A185 Yeah. I was sort of looking - - -

Q186 Where were you looking?

A186 Looking at - I was sort of, like, looking for the sort of - for the same house, because all the houses look the same.

Q187 Right.

A187 I don't know, I was sort of looking for the light out the back or something, like, because I knew they were having a party, you know.

Q188 Yep. So tell us more about when you hit her?

A188 Yeah. It just happened like that. I was just looking for the house and I must - she must have been out the front, I don't know, laying down or something on the road.

In his answer to Q183, he referred to his eyesight:

A183 And as you come down here, because I've got really bad eyes, too, very, very bad eyes, especially at night. Um, I was just - I was sort of over this ...(indistinct)... trying to see numbers of the houses or something like that.

Q332 Okay. You mentioned that your eyesight is not that good. I just want to ask you a couple of questions about your eyesight. You said you went to Budget Eyewear in Campbelltown. Is that right - Macarthur Square, Campbelltown?

A332 That's right.

Q333 Okay. How long ago was that appointment?

A333 Probably about two months ago now, at the most.

Q334 Okay. And you went there because - - -

A334 Just my eyes.

Q335 What sort of troubles were you having with your eyes?

A335 Just for long distance and stuff like that.

Q336 And what sort of finding did they make?

A336 They - all they told me is that I need strong glasses.

Q337 Mm. Did she indicate that you'd need glasses to drive or anything like that?

A337 I don't think so, no, she didn't tell me. When I got my licence three years ago I passed the eye test.

Q338 You did pass the eye testing? Okay.

A338 But I could feel ...(indistinct)... and that was nearly four years ago now.

Q339 All right. So how long - - -

A339 I maybe just scraped through with the eye test when I first got my Ps.

Q340 So would you say in the last three or four years that your eyesight has degenerated - gone downhill?

A340 Probably just a bit, yeah.

...

Q343 Can you just describe what night-time vision you have?

A343 Like, I can - I can see all right in the night but not perfect.

Q344 All right. Well, given the fact that your eyesight is not strong at night do you think it was a wise move to be driving a car?

A344 Probably not, but I wasn't - like, I could see all right, you know. Like, it wasn't that I was blinded or anything like that. I wouldn't have jumped in the car if it was like that.

In relation to the lighting of the street, the accused said:

Q235 Okay. You said you thought it was quite dark in the street, you said to me - - -

A235 Mm, very dark.

Q236 Is there any street lighting at all along there, do you think?

A236 Um, I'm not sure. It was a very dark street. It's not very lighten up. It might have a few headlight - sorry - street lights. I'm not sure. Like I said, I don't know the area.

Q508 Well, were you keeping a good lookout ahead of you?

A508 Like I said, I was, like - I was checking for cars in front of course, so - and I just lost so I was looking to the left, trying to - trying to find the house.

Q509 You said you would have seen her if she was standing up - - -

A509 If she was standing up in front. Like I said, I was checking for cars, checking for the house or something like that, you know.

...

Q517 How often - as you approached the collision scene where the impact occurred, how often were you checking the road ahead of you? You said you were looking at house numbers - - -

A517 I'd look ahead and then look for the house, check like that, sort of thing.

Q518 So, would it have been every second or so?

A518 Yeah, I'd say so, yeah. Every second or few seconds.

40. Mr Doig referred to a number of matters relevant to the issue of negligence and those matters were the subject of comment by Mr Saeedi, who appeared as counsel for the accused. It was not put that those matters were determinative of the issue of negligence but reference was made, among other things, to the accused's unfamiliarity with the vehicle that the accused was driving and with the area in which he was driving. It is relevant that the incident occurred in the early hours of the morning after New Year's Eve and the accused considered the street to be a dark street. The accused had left in an upset state of mind but was returning to make it up with his girlfriend. The speed of the car was not an issue but the constant speed that the car was driven is strongly confirmatory of the driver not seeing the person who was run over. There was no mechanical defect in the vehicle or aspect of the topography of the area that contributed to the manner in which the car was driven by the accused.

41. There are no issues of drugs, alcohol or speed of the vehicle that affect the consideration of negligence.

42. The issue of negligence stands or falls on the question of the adequacy of the lookout kept by the accused when he was driving. As I have said earlier, the evidence of the tests conducted by Sergeant Dauth does not, of itself, show that there was necessarily a departure from the standard required of an ordinarily careful driver.

43. A high standard of vigilance and care is expected of a driver of a motor vehicle because the driver is in the best position and has the responsibility to control events which might lead to a collision between a motor vehicle and a pedestrian (see Caldwell v Deka, NSWCA, Full Court, 40820 of 1990, 16 June 1993, unreported, cited in Maragrave v Vrazalica [1999] NSWCA 242; (1999) 29 MVR 419 at 421 [12]).

44. In my view, the evidence given by Sergeant Dauth and that of Mr Mallitt and Ms Lyons supports the view that Ms Vega's conduct in lying on the roadway where she did cannot be said to be effectively the sole cause of the collision. I am also satisfied from that evidence and the evidence as to the constant speed of the vehicle before it struck Ms Vega, that the accused's lookout departed from the standard of care required of him.

45. However, the issue in this case is whether the accused's departure from the standard of care to be expected of the ordinary prudent driver that I have found satisfies s 29(4) of the Crimes Act. That is, I must be satisfied beyond reasonable doubt that the accused failed unjustifiably, and to a gross degree, to observe the standard of care that a reasonable person would have observed in all the circumstances of the case.

46. Taking into account all the circumstances to which I have referred, I am not able to be so satisfied.

47. I find the accused not guilty of the charge that, by the culpable driving of a motor vehicle, he caused the death of Amaranta Vrinalin Vega.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the prosecution: Director of Public Prosecutions (ACT)