The jury has been left to decide if the way a 60-year-old was riding on July 22, 2022, was a “wanton disregard” for the safety of road users, or a case of “human fallibility”.
Geoffrey and Karen Boucher suffered unsurvivable injuries as they lawfully crossed State Highway 2 at Bethlehem, on a traffic-signal controlled crossing.
Karen Boucher was sent flying, while Geoffrey Boucher was dragged under the bike. Both died at the scene.
As they made their way across the road at a pedestrian crossing controlled by traffic lights, a motorbike hit them. The couple suffered “unsurvivable injuries” and died at the scene.
The Crown alleges it was the rider’s “ego” that killed them.
Prosecutor Ian Murray said in closing that the rider rode by his own rules, paying no attention to speed limits, choosing to make his own assessments about safe speeds.
The Crown said that in this case, his assessment was wrong.
Both Crown and defence experts confirmed the man was speeding immediately before and in the lead-up to the collision.
Defence expert Dr Tim Stevenson estimated the rider was travelling an average of 110km/h in the 50km/h zone just before the roundabout.
The Crown says the jury can see the rider cuts the lanes to maintain speed, and on the man’s own evidence, has difficulty as he leaves the roundabout because of grooves in the road.
The rider said he took a straight line because it was safer for his pillion passenger.
Because of his speed, the Crown alleges, he was distracted by the “little bit of difficulty” and careered out the other side to approach the pedestrian crossing, which had been showing red signals for “quite some time”.
The Crown says that at some point he looked up, saw the red light and braked, but it was too late.
The rider denies ever seeing a red light and doesn’t know why his brake lights are seen coming on. He accepts he must have braked, but doesn’t know what he saw to make him apply the brakes just before impact.
The Crown alleges he is lying.
Murray told the jury the rider must have seen the red light, but because he was travelling so fast, by the time he reacted, the brakes came on only a fraction of a second before impact.
He was travelling almost 70km/h when he hit the Bouchers, leaving them with virtually no chance of survival.
Murray told the jury not to be distracted by the many “red herrings” of the defence case; it was a very “simple” trial.
His riding amounted to a “major departure” from the standard expected of a reasonable and prudent rider, the Crown said.
‘An issue of human fallibility'
Ron Mansfield, KC, who led the defence with co-counsel Caitlin Gentleman, closed their case by reminding the jury the rider had never denied he caused the collision and was at fault.
However, the defence did not consider the Crown had selected the appropriate charge.
The Crown sought to frame the rider and his conduct as “cynical, callous and cold”, said Mansfield.
“Can I suggest that might tell us more about the prosecutor promoting his charge than it does about [the rider]?”
Mansfield said the defence didn’t deny speed was a factor, but he urged the jury to consider the whole picture.
The rider hadn’t seen the red light, because he was fixated on a centre green light further down the road, Mansfield said.
The defence pointed to visual clutter around the first set of traffic lights, which on the night in question was missing a central overhanging light that was brighter and higher than the two lights on either side of the road.
“Without that central light there, you could see the central light further down the road. Before the roundabout and after he became fixated on it, thinking that was the controlling light for what he could do,” he said.
“It was a bigger lamp and it was in the middle of the road, and it was right in the vision of the rider.”
He was so fixated, that he “didn’t see the red lights that were there to be seen”.
Both Mansfield and Murray urged the jury to consider the way the rider responded after the collision, but offered different conclusions about his behaviour.
Murray said the man was self-serving – seeing to his own needs by going into the Pizza Hut bathroom to clean himself up, and only offering assistance to Karen Boucher once he saw the emergency services arriving.
He referred to witnesses’ statements about things they heard and saw the rider say – concern for where his bag was, a “callous” phone call asking for his bike to be collected, and an apparent lack of concern about the state of the Bouchers.
However, Mansfield urged caution when assessing those statements.
The rider hadn’t tried to leave the scene, he had stayed, and witnesses had only heard snippets of conversations.
Their view of what he said had been coloured by what had happened, Mansfield said.
They had seen “a guy who had been riding a Harley Davidson”, were “shocked” by the death of two people, and were prone “to jump to negative conclusions”.
The rider, like others who were at the scene, had taken some time to realise a second victim was lying on the side of the road.
When he did see Karen Boucher, he saw that no one was attending to her, and tried to help her in the way he thought he could – by performing chest compressions. Sadly, it was likely she had already died at this point.
He hadn’t asked the paramedics about the Bouchers’ condition, because it was clear to everyone they were dead.
Self-serving, or genuine concern for safety?
The Crown said the man had started a “self-serving” petition, calling for a review of the pedestrian crossing, in a bid to shift the blame.
But Mansfield said it came from a place of genuine concern for safety, and this concern was shared by hundreds of other locals who had signed it.
While there hadn’t been other deaths or collisions on the crossing, Mansfield said that didn’t tell the jury whether there had been near-misses.
The defence called a witness who told the jury she and her brother were very nearly hit by a truck as they went to cross on a green light, as the truck ran a red.
The prosecution had pointed to the volume of traffic that used the road, some 47 million cars over five years.
But Mansfield said that wasn’t the right metric to focus on, it was more important to focus on how often the pedestrian crossing was used, which based on defence witnesses evidence from the council and expert, wasn’t often.
Mansfield accepted the rider’s conduct had fallen below the standard expected.
“You might think it’s careless, it’s not what we expect of the ordinary or reasonable, or competent driver ... It’s careless driving causing death and if that charge had been laid, none of us would be here.”
Justice Cheryl Gwyn said, in summing up, manslaughter was defined as culpable homicide that was not murder.
“It is when someone is killed, and while it is not regarded as murder, we view the person who causes the death, their conduct as reprehensible,” she said.
It is the killing of a person by unlawful act, where that act is objectively dangerous, and an operative cause of the person’s death.
Where it involves negligence, that must be a “major departure” from the standard of care required in that situation.
The difference between that and “dangerous driving causing death” was they must drive in a way that falls below the standard of care owed in a situation, and that driving must have created a situation that was dangerous to the public.
While for manslaughter, the focus was on the “unlawful acts”, in dangerous driving, the driver didn’t have to have committed an unlawful act, the focus was on the driving as a whole.
The Crown says the unlawful acts were the rider’s speed, dangerous cutting of lanes on the roundabout, and failing to stop for the red light.
The jury has retired to consider its verdict.
