Screen title: Criminal trial, Episode 2
Prosecution barrister: Members of the jury, good afternoon. It's my role now to really outline or summarise the evidence that you'll hear led by the prosecution in support of the charge of dangerous driving.
Screen title: Fran Dalziel, Crown Prosecutor
Fran Dalziel: This is a charge of dangerous driving causing death and I would need to make it clear to the jury that they don't have to find that the accused man did something deliberately wrong, that he set out to hurt this poor woman. I have to establish that in all the circumstances, the driving was dangerous.
Defendant: Are you okay? Please.
Prosecution barrister: The prosecution says that Mr Kunahan was driving at an unsafe speed and was distracted by his mobile phone and it was the speed at which his car was going at and the fact that he was distracted that ultimately led to the death of Ms Stead.
Fran Dalziel: And even though her own riding wasn't perhaps what it could have been, nipping past somebody in a roundabout might not have been the safest thing to do, he as a driver in the vehicle had to accommodate her actions as well.
Prosecution barrister: His car clipped her bicycle wheel and she was thrown in front of oncoming traffic. She died as a result of this collision.
Fran Dalziel: And so by not giving full attention and by not taking into account of her actions, he in all those circumstances, the driving was dangerous. Those sort of things are often a value judgement.
Judge: Everyone feeling alert? Thank you, defence counsel.
Defence barrister: Ladies and gentlemen, good afternoon. I appear for Mr Kunahan, who sits quietly in the dock at the back of Her Honor's court, watching these proceedings unfold, pretty much like you do.
Screen title: Sarah Keating, Barrister
Sarah Keating: The crime that's been charged, dangerous driving causing death, under 3.19 of the Crimes Act, has three elements and one's driving a car, one's driving in a manner that was dangerous and then the third is that the manner in which the car was driven caused the death. So I think on the fact scenario that we've got, the defences available are the ones that relate to element two and element three, because of course, there's no real issue here that the accused person was driving the car and that the car was operable.
Screen title: 1 Accused was driving a motor vehicle. 2 Accused drove dangerously. 3 Dangerous driving caused the death.
Sarah Keating: So in approaching this, you evaluate what the evidence looks like and you determine where it is you might be able to attack one of the elements.
Defence barrister: The prosecution has to prove not that there was a hypothetical risk or a speculative risk, they actually have to prove that in the circumstances of this case, momentary inattention created a risk.
Screen title: 2 Accused drove dangerously.
Sarah Keating: In this case, it seems to me that it would be more difficult to make out a defence to that aspect because we all know as a matter of practise, if you're not concentrating on the road because your focus is on a mobile phone, that can create a risk.
Defence barrister: Can prosecution exclude the speed at which the rider was travelling? And point beyond reasonable doubt that it was the attention on the mobile phone that caused the driver to clip the wheel and ultimately kill the rider?
Screen title: 3 Dangerous driving caused the death.
Sarah Keating: In relation to element three, the prosecution, in effect, had to prove that momentary inattention was the substantial or operating cause in relation to the death of the cyclist. In this case we know on the evidence that yes, there was some momentary inattention but we also know that this cyclist approached the roundabout at speed. The real issue then becomes, can the prosecution in effect exclude the speed at which the rider was travelling and point beyond reasonable doubt that it was the attention on the mobile phone that caused the driver to clip the wheel and ultimately kill the rider. And the critical issue here is, well, was it the driver or was it the cyclist who's causally responsible for what has occurred? In order to successfully defend this, you have to raise doubt about the fact that it was the driver's responsibility. The only way to do that on this evidence is to point to the speed at which the rider was travelling at.
Screen title: Chief Judge Peter Kidd
His Honour Chief Judge Kidd: The jury is selected to try the case on the facts. Only the jury decides that facts. The judge decides the law, the jury decides the facts.
Judge: You do not need to accept any comments that counsel may make during their addresses. Of course, if you do agree with an argument they present, you can adopt it; in effect, it becomes your argument. But if you don't agree with their view, then you must put it aside. As I've told you, you alone are the judges of the facts.
His Honour Chief Judge Kidd: Of course, the most important facts that the jury ultimately decides is guilt. One of the first things we as judges tell the jury is that their deliberations are confidential. It's a very important part of the process. It's to enable jurors to discuss issues frankly and freely without fear of whatever they say being revealed in public. But throughout the course of the trial and in particular at the end of the trial, the judge instructs the jury as to what the law is and how to approach the facts having regard to the law.
Judge: You are not bound by anything that counsel says about the law. If counsel says something different to what I say about the law, you must ignore that and follow my directions.
His Honour Chief Judge Kidd: The judge will instruct the jury as to the elements of that particular offence and what they need to be satisfied of.
Judge: Now, I have previously given some direction about the three elements of this offence. The third element is the real issue in dispute in this trial. That the dangerous driving caused the victim to die. If you find that the prosecution has proven this element beyond reasonable doubt, then you will have no trouble finding the accused guilty. I now ask you to go to the jury room to consider your verdict.