R v Griffiths

District Court of NSW|2024-09-06|Before: Mr P

Judgment

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.
The accused has pleaded not guilty, and the matter is listed for trial at Wollongong District Court commencing 14 October 2024.
On 26 June 2024, the Court delivered judgment as to the relevance of two expert reports upon which the accused relies.
The judgment refers to the one charge, the Crown case, the facts in issue and the expert evidence. The Court determined that the evidence was relevant although other issues pertaining to their admissibility were to be determined. It is appropriate to restate the Crown case and facts in issue as recorded in the earlier judgment.

The Crown case

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.
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.

The fact in issue

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.
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.
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".
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".
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].
On 13 August 2024, the experts, Dr Hayley Cullen and Professor Kristen Pammer, gave evidence on the voir dire as to the admissibility of their respective expert opinions. The parties thereafter provided a written outline of submissions and further oral submissions were made on 6 September 2024.

The contentions of the parties

The accused contends that the evidence is admissible for the following reasons: - 1. The experts' opinion is wholly or substantially based on their training, study, or experience: s 79 Evidence Act 1995 ('the Act'). 2. The evidence is admissible as to the reliability of the account of events to be adduced by the accused.
The accused submits that the evidence is admissible, consistent with the recent High Court decision in BQ v The King [2024] HCA 29. Fundamentally it was contended that the evidence was admissible as opinion evidence that satisfied s 79 of the Act in conjunction with, or in addition to, it being credibility evidence within s 108C. There is no issue that the accused asserts he did not see the deceased. The accused therefore contends the opinion of the experts can assist the jury making its own assessment of the truthfulness of the accused's account by reason of the concept of inattentional blindness.
The Crown accepted, given the accused raised the defence of honest and reasonable mistake of fact, that the evidence is relevant to whether the accused in fact looked but failed to see the pedestrian. However, the Crown noted that there was no dispute that the accused failed to see the pedestrian. Accordingly, the evidence, taken at its highest, was of only marginal relevance in terms of assessing the honesty of the accused's claim not to have seen the pedestrian. However, it was contended that the expert evidence was of no relevance to the reasonableness of the asserted mistake of fact. It was contended that it was ultimately for the jury to determine whether the driving of the accused was objectively dangerous and that the expert evidence cannot assist the jury in this task.
The Crown further submitted that the evidence was inadmissible given the underlining assumption of each of the experts of an unexpected event is absent.
In any event, it is contended that the evidence would be excluded in that its probative value is substantially outweighed by the danger that the evidence will be unfairly prejudicial given it has the potential to be misleading and confusing for the jury so as to distract them from their primary task. It is contended that the evidence otherwise is of limited or no probative value.
In the decision dated 26 June 2024, the Court determined: - "[26] 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."
In the circumstances, consistent with the previous decision, I am satisfied that the issue of inattentional blindness or change blindness is potentially relevant, subject to other considerations of admissibility. I accept the accused's submission that, subject to other issues of admissibility, the concept of inattentional blindness or change blindness could be considered credibility evidence for the purpose of s 108C as discussed in BQ.
However, it remains necessary to determine whether the expert evidence is otherwise admissible following consideration of the experts' reports and their evidence.

Expertise

Dr Cullen has a First Class Honours in Psychology and a Doctorate of Philosophy with her thesis being "Inattentional Blindness Among Eyewitnesses to Crimes". Dr Cullen has published many papers as well as supervising papers published by students. Consistent with her thesis topic, the papers predominantly relate to criminal investigations with a particular focus on witness observations and memory in the context of the commission of crimes and their investigation. It is apparent from Dr Cullen's curriculum vitae that the impact of possible inattentional blindness is being considered in this context. Dr Cullen indeed conceded in her evidence that her research is inattentional blindness for criminal events. This is consistent with Dr Cullen's report in which she observed that her research "has mostly focused on understanding how eyewitness inattention and distraction impact upon what eyewitnesses notice and remember about criminal events".
Whilst finely balanced, I am satisfied that Dr Cullen possesses the requisite expertise in inattentional blindness to express an opinion in the context of the issues requiring determination.

General admissibility

Dr Cullen's report dated 3 November 2023 concludes that both inattentional blindness and change blindness "may be applicable to the case under consideration". Dr Cullen notes that her opinion could give a "more nuanced perspective" as to whether the defendant experienced inattentional or change blindness.
In her report Dr Cullen said the following: - "Inattentional blindness has four key features (SIMONS, 2007): 1. An individual failing to notice an event. 2. The event being unexpected. 3. The event occurring in plain sight. 4. Failing to notice because attention is being focused elsewhere. … … there are certain common and crucial features of these experiments (Jensen et al., 2011): 1. Participants are engaged in a specific task that consumes their attention while they are viewing the visual stimulus in question. 2. An unexpected object or event appears in participants' immediate field of view. 3. Participants are asked questions immediately after viewing the visual stimulus to determine whether they notice the unexpected object or event."
Dr Cullen further observed in her report that inattentional blindness is "productive" as it allows an individual to stay focused on a task and "avoid irrelevant distractions". In these circumstances it is common and normal for an individual to fail to notice things that are in plain sight. However, it often happens for "benign or inconsequential objects and events". In the context of driving, Dr Cullen noted the studies revealed drivers may fail to notice "unexpected hazards" such as pedestrians. The testing involved drivers failing to notice "unexpected hazards" on the side of the road.
Dr Cullen repeatedly in her report refers to a person failing to see unexpected events, changes or hazards.
In the context of any auditory distractions, Dr Cullen observed that there was limited research in this area. In any event, the research was inconclusive in that some studies had found that an auditory task in fact helped people notice unexpected visual events. The studies however did not consider how auditory distractions that cause visual attention to be diverted away from the immediate visual scene impact on noticing "unexpected objects or events". Dr Cullen confirmed in her evidence that there was limited research on the relationship between inattentionalal blindness and auditory tasks or distractions.
Dr Cullen concluded her report with the following observations: - "While there has been several decades worth of experimental research into both inattentional blindness and change blindness, it should be noted that most of this research is being conducted within the laboratory setting. The types of stimuli the participants in these studies are shown are not always realistic".
Dr Cullen reiterated in her evidence that the event which was unnoticed in the studies was an "unexpected" one. She confirmed that one of the indicia required for inattentional blindness is an unexpected event (T 20; T 23; T 32).
The evidence of Dr Cullen further revealed that the studies on inattentional blindness were generally limited to static images of driving scenes whilst in simulators. Change blindness refers to an individual failing to notice large changes within their visual environment.
However, neither factual premise for inattentional or change blindness is evident in the present case. The relevant event is the presence of the deceased on the roadway at the time the accused executes the right turn. The presence of the pedestrian cannot be considered an unexpected event for two reasons. First, the presence of pedestrians crossing a road in a suburban environment in accordance with a walk signal could not be considered as unexpected. Second, the evidence is that the accused, whilst stopped at the red traffic control arrow, looked directly towards the deceased who was standing on the footpath waiting to cross. During the initial stages of the deceased crossing the road the accused continues to look in her direction. The accused thereafter moves forward and begins to turn. At the same time the accused is looking through the front window, moments before the collision with the deceased.
In the circumstances, an essential fact required for inattentional blindness is absent. Similarly, the presence of the deceased on the footpath and on the road, prior to the collision, could not be considered as a significant or important change in the driving environment such that the concept of change blindness would have application.
In the circumstances, I am not satisfied that the opinion of Dr Cullen is admissible given the issues in the trial. In any event, the opinion of Dr Cullen that inattentional blindness or change blindness may be applicable to the accused's contention that he did not see the deceased, or that the research may provide a "nuanced perspective" as to whether the accused experienced inattentional or change blindness, is no more than speculation: Lang v The Queen [2023] HCA 29 at [13] (Kiefel CJ and Gageler J).
In any event, the evidence ought not to be admitted pursuant to s 135 as discussed below.

The opinion of Professor Pammer

I accept Professor Pammer has sufficient expertise to express an opinion on the issue of inattentional blindness in the driving context.
Professor Pammer refers to inattentional blindness as the experience of "failing to detect an object that is clearly in view typically as a consequence of engaging in a secondary task that requires attention".
Professor Pammer noted in her report that the following factors were relevant to inattentional blindness in the driving context: - 1. Cognitive load: The more complex the task the greater the draw on the cognitive resources such that fewer resources are left to identify other "unexpected" objects. 2. Expectation: The driver is more likely to filter out objects that are "thematically inconsistent with the environment". In the circumstances inattentional blindness tends to increase for objects/people/events that are unexpected.
Professor Pammer noted that "expectation" was an important aspect of understanding inattentional blindness. In her report Professor Pammer observed that whilst researchers have "a firm grasp that inattentional blindness occurs", how it happens was still speculative. However, the most accepted explanation is that it occurs when an object "doesn't match an internal mental template of the world". In effect there is an unexpected object which does not fit the mental template.
In the context of driving, Professor Pammer observed: - "The theory application here is real-world settings (sic) is that we have a mental template for "driving" or "walking from my office to get a coffee" and there are particular events and objects that we expect to see under those circumstances. For example, when driving in the city we are less likely to detect a kangaroo than a man in a business suit (and vice versa, we are less likely to detect a man in a business suit then a kangaroo when driving in the country) because they are not expected in our mental template of driving". (emphasis added)
She further observed that when driving it is "highly functional" to filter out information that was "not relevant" and focus on the primary task of driving. Professor Pammer opined: - "Drivers under high cognitive load (distracted or driving under difficult circumstances) are more likely to miss an important object… Study specific to driving environments have also shown the participants are less likely to notice unexpected hazards (such as pedestrians or swerving vehicles) when they are completing a more difficult driving task in a driving simulator… If an object is unexpected, or in an unexpected location then it is more likely to be missed when driving (however, conversely, highly predictable objects are also likely to be missed; people under experimental circumstances almost always miss street signs)".
In her evidence, Professor Pammer explained a high cognitive load or complex environment included, for example, the combination of a dark raining night in the middle of Sydney. This was to be contrasted with a low cognitive load which required very little mental energy such as driving along an unvarying road with no other traffic in the middle of the day in a familiar environment. Further, Professor Pammer acknowledged that the failure of a driver to observe a street sign is very different from the failure of a driver to see a pedestrian crossing a road upon which they are driving. Further, the research on the failure to see pedestrians was effectively on a sidewalk. She was unaware of any research of inattentional blindness in the context of persons actually on the roadway proper. Further, the research was generally limited to providing static images of objects on the side of the road in a driving simulator.
Professor Pammer reiterated in her evidence that the particular object or event is unexpected in that it is something that is "anomalous to the environment". However, Professor Pammer conceded that it would not be unexpected for a driver to be aware of pedestrians around the vehicle.
In the context of the circumstances confronting the accused, Professor Pammer noted that he was engaged in a complex primary task of operating a vehicle and watching for oncoming traffic in the right turn lane. She referred to a possible momentary distraction from a "horn hoking". However, in the context of the relevant "expectation", Professor Pammer said the following: - "Another important aspect here is whether the defendant expected the deceased to still be on the road when he made the turn".
Professor Pammer cited studies that it took a pedestrian an average of 5.8 seconds to cross a two lane road. Counsel for the accused conceded during the hearing that Professor Pammer had misapplied the relevant study in that this was a four lane road, not a two lane road.
For the reasons already given, the presence of the deceased on the road at the time the accused was executing the right turn could not be unexpected in the general sense, given the environment in which the accused was driving, or in a more specific sense, in that the pedestrian was within the accused's line of sight before executing the right turn, and indeed thereafter.
Further, the evidence of Professor Pammer reveals that the research on inattentional blindness in the driving situation is limited, and does not extend to inattentional blindness in circumstances such as those confronting the accused.
In the circumstances, I am not satisfied that the opinion of Professor Pammer is admissible given the issues in the trial. In any event, the opinion of Professor Pammer that inattentional blindness may provide an explanation for the accused's failure to see the deceased is speculative, and premised upon an unproven and false assumption as to the width of the road and the period it would be expected a pedestrian would take to cross.
In any event, the opinion ought to be excluded pursuant to s 135 of the Act for the reasons traversed below.

Section 135 considerations

Section 135 of the Act provides as follows: - "General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time."
The term 'probative value' is defined in the Dictionary of the Act as follows: - "Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
The relevant fact in issue was whether, at the time of the impact, the accused was driving the vehicle in a manner dangerous to another person. Given the defence raised, a relevant fact in issue is whether the accused 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.
The assessment of the probative value of the evidence does not require evaluation of the credibility or reliability of the evidence: IMM v The Queen (2016) 257 CLR 300. The evidence must be taken at its highest, assuming that it is both credible and reliable: TL v King [2022] HCA 35 at [28].
In assessing any unfair prejudice it is necessary to consider whether the evidence would be misused by the jury in an unfair way that is logically unconnected with the purpose of its tender. It is the risk of a jury misusing the evidence or giving more weight to it than it deserves: IMM at [74]. In Lang Kiefel CJ and Gageler J observed at [17]: - "The prejudicial effect which might in an appropriate case be required to be weighed against the probative value of an expert opinion has properly been recognised to be capable of including a risk the jury might give the opinion more weight than it deserves by reason of a perception of the status of the expert - the so-called "white coat" - or by reason of difficulty in assessing information of a technical nature".
The probative value must be "substantially" outweighed by the danger of unfair prejudice. Exclusion will generally only be justified in a clear case: Smith v Aircraft Maintenance Service Australia (AMSA) Pty Ltd [2018] FCA 264 at [38].
The evidence of Dr Cullen is of limited probative value. As Dr Cullen quite candidly noted in her report: - "While there has been several decades of research devoted to exploring the phenomena of inattentional blindness and change blindness, this research is not without limitations. The research in this space is heterogenous, not exclusively focusing on understanding these phenomena in driving contexts. The research is also limited by exploring failures to notice unexpected objects/events and changes in laboratory settings, with artificial stimuli and minimal consequences if the participant fails to notice. Therefore, we must exercise some caution when applying this research to a real driving context."
Further, as previously observed, the circumstances in which inattentional blindness may occur bear little resemblance to the facts in the present case. Additionally, the opinion of Dr Cullen as to the possibility that the accused's manner of driving was explicable by inattentional change blindness is highly speculative.
To the extent the accused relies upon auditory distraction as applicable in the trial, Dr Cullen observed: - "It should be noted that there is still limited research that has considered the effect of auditory tasks and distractions on noticing unexpected events and changes. …The studies described above do not consider how auditory distractions that cause visual attention to be diverted away from the immediate visual scene impact upon noticing of unexpected objects or events in the surrounding environment. More research is needed looking at the crossovers and interactions between visual and auditory attention, and how these crossovers affect noticing of unexpected events and changes in the environment".
For the reasons earlier traversed, a key feature required for inattentional blindness is an unexpected event. That could not be considered as having any application in the present trial. In any event, Dr Cullen merely concluded that the matters traversed in her report could simply be used to give a more "nuanced" perspective as to whether the accused experienced inattentional or change blindness.
I have concluded that there are significant risks of the jury misusing the evidence and giving the opinions of the expert more weight than they deserve. I find that the limited (if any) probative value of the evidence is substantially outweighed by its prejudicial effect.
The opinion of Professor Pammer similarly has limited probative value. The application of inattentional blindness is similarly premised upon a failure to identify an unexpected event which bears no resemblance to the evidence in the trial. Further, Professor Pammer's opinion that inattentional blindness may explain the accused's failure to see the deceased was based upon an underlying premise which is incapable of being proven. In any event, Professor Pammer fairly conceded in her report: - "However, this is all based on experimental research and caution must be exercised when evaluating their utility in "real-world" scenarios".
I am satisfied that there are significant risks of the jury misusing the evidence and giving the opinions of Professor Pammer more weight than they deserve. The limited (if any) probative value of the evidence is substantially outweighed by its prejudicial effect.
In the circumstances, I determined that the expert evidence of Dr Cullen and Professor Pammer is inadmissible.

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: 16 October 2024

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Judgment (9 paragraphs)

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