R v Kayardi
Summing up
Judge It is up to me to sum up. Few opening words then resume at 10:15 tomorrow when you will return. Our functions are quite different. Law is my area of responsibility and must now give you directions as to law in this case and you must accept those directions and please follow them. I must remind you of prominent features of evidence but it is your responsibility as jury to decide and you alone must do that. Don’t have to decide every point but only so that whether charge against Mr Kayardi is proved. Do that re whole of evidence including omitted evidence. Form opinion about witnesses and which evidence reliable and which evidence not. Mr Kayardi has chosen to give evidence in this case and must give as much weight as to other evidence. Decide only on evidence placed before you, no more. Entitled to draw inferences, that is draw common sense conclusions, but cannot speculate on evidence that might have been or be drawn into speculation. Facts of case your responsibility. You may wish to take into account the speeches you just heard but you are not bound to accept. Equally, if in my review tomorrow you do not agree, do not adopt those views unless you agree with them. And if I do not mention something that you think is important then you must give weight to it as you see fit.
In this case the prosecution must prove that Mr Kayardi is guilty. He doesn’t have to prove his innocence. Burden of proving Mr Kayardi’s guilt is on the prosecution. How does prosecution succeed in proving Mr Kayardi’s guilt? By making you sure of it, nothing less than that will do. If after considering all evidence you are sure – guilty, if not sure – not guilty.
This is a private prosecution brought by the complainant Mr Martin Porter, being represented by Counsel Mr Sareen. Central issue concerns overtaking issue by Mr Kayardi on 12th February 2015 when he drove his white Audi sports car Westwards A315 when overtook bicycle ridden by Martin Porter.
The prosecution say that he did so at speed and in manner that was highly dangerous and at a point in road when hazard lines and warning road narrowing. Fortunately no physical harm done to Mr Porter but prosecution say that case about near miss and what might have happened; risk of injury caused by manner of driving.
The Defendant Mr Kayardi denies driving dangerously and tells you he calculated manoeuvre with thought and consideration using words to the effect he planned ahead. Tomorrow morning I will turn to ingredients of offence and give some other directions and then you will retire. That’s enough for you today, 16:55, my apologies for going on.
15:58 [Jury exits]
Judge Ladies and gentlemen, thank you very much. See you tomorrow morning.
16:00 [End Day 2]
Day 3, Wednesday 9 March 2016
10:20
Judge Good morning members of the jury. I’m now going to resume my summing up. It’s not disputed members of the jury that Mr Kayardi was driving the car – an Audi sports car – when he overtook Mr Porter. So what members of the jury as matter of law is dangerous driving? For the purpose of this case: the Defendant is regarded as driving dangerously if and only if the way in which he drove fell far below what is to be expected of competent and careful driver AND it would be obvious to competent and careful driver that driving in that way would be dangerous. So it’s a high threshold members of the jury. The key question for you to answer in relation to the charge, having regard to all the evidence and directions: is are you sure at the time the Defendant overtook Mr Porter he was driving dangerously? If you’re sure that he was driving dangerously he’s guilty of the charge on the Indictment and you do not have to consider what I’m about to say about the alternative offence of careless driving.
If you’re not sure the Defendant was driving dangerously it is open to you to find him guilty of the lesser offence of careless driving. Involves driving on the road without due care and attention. IF and only if the way in which he drives falls below what is expected of competent and careful driver. If you’re not sure whether he was driving dangerously: are you sure the way the Defendant was driving fell below that expected of careful and competent driver? If yes: he is guilty of careless driving. If no: not guilty. You don’t have the Indictment but the charge, just to remind you, the charge is dangerous driving under s.2 Road Traffic Act 1988 and particulars that on 12 February 2015 drove a mechanically controlled vehicle namely white Audi [registration number] on a road namely A315 Staines Road between Hounslow and Feltham.
Members of the jury before you retire to give your verdict going to hand you a document called ‘route to verdict’. Sets out number of questions for you to ask yourselves before you reach verdict in light of directions I’ve given you. Not going to read it out, you can read it now if you choose: it is there to assist you in the light, in the context of, the directions I’ve given you re dangerous driving and ingredients of offence.
Now the first witness, you heard from him the day before yesterday, was the complainant Mr Martin Porter. He gave evidence, he’s a 53 year old man, a senior barrister, a Queen’s Counsel, a very experienced cyclist and in 2015 you heard he cycled nearly 8500 miles and passed a number of proficiency tests. He is a safe cycling campaigner and is known as the Cycling Silk, silk being the word used to describe Queen’s Counsel. On 12 February 2015 he was cycling home from London on A315, you’ve got with you the jury bundle. JB1 shows you the route that they’re talking about, the A315. This stretch of road has a 30mph limit. Mr Porter was cycling Westward, it was about 6:55 pm and it was dark. His bike he told you has very good lights front and back. Described it as a dedicated commuter bike with flat bars, what I believe to be straight handlebars. Wearing distinctive yellow top and on top of handlebars sits device called Garmon Edge which put simply logs power, [energy?], speed and heart rate. You can look at page 12 of the jury bundle which shows you a reading at the relevant time of power, speed and heart rate. Also affixed to the handlebars is a contour rome camera and this has as you’ve seen captured on film the white Audi driven by the Defendant overtaking the cyclist Mr Porter. Now you’ve seen that film, seen it several times, not going to show it to you again but if at any time during deliberations you want to see it again you can do so.
He told you, that’s Mr Porter, that he felt highly endangered as if going to be knocked off his bike. Right wheels of Audi were on hazard lines, car far too close to him, he said “if I’d thrown out my right arm” he said “I would have touched the car, I was” in his words “alarmed and angry”. So he told you he felt very much in danger and affected as the bike was pushed to the left, the passing speed of Audi causing, as a result of its slipstream, causing him to move to the left. He drew attention to the reading from the Garmon edge of his heart rate to be found as I’ve said at JB 12 which showed a raised heart rate. As far as power and speed concerned, didn’t show any extra energy being used at the time, he says heart rate is indication of alarm and distress caused as result of overtaking manoeuvre by the Defendant.
After the Audi stopped a little further on, following overtaking manoeuvre, Mr Porter came up, went up to driver and asked him if he thought he had driven too close and whether speeding. The Defendant denied he had done so and you heard that exchange on the film. A member of the Surrey Police a police officer who happened to be in queue further down, PC Pascoe, became involved at Martin Porter’s request and Mr Kayardi, the Defendant, agreed to go into a nearby supermarket car park and where he pulled over. That intervention involved officer pulling over both Mr Porter and Mr Kayardi. No action taken by police officer, it wasn’t his patch as it were, but he did have a look later on at footage which was sent to him via a link by Mr Porter and expressed a view as you heard that matter be reported to the Metropolitan Police. That was done by Mr Porter but Met police declined to take any action. In a nutshell Martin Porter asserted that it was not a safe and appropriate place for Mr Kayardi to overtake him and that he did so in his view dangerously.
A Mr Paul Croft was called by the prosecution to give evidence and he’s what we call an expert witness and he was called in that capacity. He’s an advanced accident investigator; he specialised in investigation of serious and fatal road collisions and did so for many years with the Met police, he was there for about 25 years and now left Met police and acts in a private capacity. He described to you, and I won’t go into details of it, the methodology he used to arrive at his findings and to some extent it is dealt with graphically in the jury bundle which you can take with you. He visited the road, the site as its been called, in early January this year and took this footage and you see that on the screen. He also viewed Mr Porter’s film taken with his contour rome camera.
Your attention was drawn and I draw it again now to the jury bundle, JB 3, which sets out his assessment, applying the methodology he described to you of the position of the Audi at relevant point when the overtaking manoeuvre took place. And he calculated and told you that the width of the road, that’s both lanes, was about 8.4 metres and width of side of road travelling Westward, that the cyclist Mr Porter and the Defendant were travelling, was about 4.2 metres. And the distance that Mr Porter, the distance between Mr Porter and the kerb when cycling East to West was approx. 1.4 metres and in his view, distance from Martin Porter’s right shoulder as he’s cycling, to the car while it was overtaking was between 60 and 80 cm. It was his view and his calculation that at the time that the Audi overtook Mr Porter its right wheels were on or close to the white lines, the hazard lines and the way he put it was it would be unlikely to have been on the wrong side of the road ie the other side of the hazard lines. He also told you that from viewing the film and his calculations that Mr Porter as a result of the overtaking manoeuvre and speed at which vehicle was travelling, that this caused Mr Porter to be blown or pushed to the left; and that this was caused by the motorcar’s slipstream and was not in his opinion a voluntary action, the movement was not a voluntary action on the part of Mr Porter. He assessed that speed of bicycle about 19 mph and his assessment of speed of motorcar was between 50 and 57 mph.
You were taken, when he gave evidence, to various parts of the Highway Code, those are in the bundle you’ll take with you and you can refer to them. Mention was made by him, by the prosecution of when overtaking, of the need to ensure road was clear as far as oncoming traffic concerned. General rule is that safe to carry out manoeuvre, extra care to be taken at night, not to overtake when approaching a humpback bridge or where oncoming traffic. And where cyclist involved give cyclist a wide berth.
So members of the jury in this case you’ve heard evidence from Mr Croft who I say is an expert and he’s been called on behalf of the prosecution. Expert evidence permitted in criminal trial to provide you with information and opinions likely to be outside your experience and knowledge but within his. By no means unusual for nature of this evidence to be called and important you see it in its proper perspective. Part of his evidence as a whole to assist you in regard to one aspect notably: speed, position, impact Audi when it overtook the bicycle. A witness called as an expert is entitled to express an opinion in respect of his findings and matters put to him; and you’re entitled to give regard to opinion expressed by Mr Croft when coming to your own conclusion. You should bear in mind that if you do not accept evidence of expert you do not have to act on it. You do not have to accept evidence even if evidence of the expert is unchallenged.
It is for you to decide whose evidence and whose opinions you accept, if any. Whilst it may give assistance to you in reaching verdict, you must reach verdict having considered all of the evidence. That, in essence, and I haven’t given you an exhaustive account was produced by prosecution.
The Defendant gave evidence. Dealt with by way of admission that Mr Kayardi is a man of good character. That is, that he has no previous convictions, criminal convictions of any nature, no cautions and indeed does not have even any historic points on his driving licence. You’ve heard that he’s a qualified driving instructor although not practicing as it were, as such at the moment. But of course good character cannot by itself provide a defence to a criminal charge but you must take it into account in his favour in the following ways. The Defendant has given evidence and as with any man of good character, supports his credibility. It is a factor you must take into account when deciding whether you believe his evidence. And 2) means that less likely than otherwise to [commit?] this offence. He’s 33 years old.
You’ve heard evidence in the Defendant’ favour, it is up to you to decide what weight to give. You can take into account everything you’ve heard from and about the Defendant. You may think – matter for you – he is entitled to ask you to give weight to his good character when asking whether the prosecution satisfied you of his guilt.
I now turn to the evidence of Mr Kayardi. It is fresh in your mind. He’s 33 years old and as I’ve said a man of good character, he’s a qualified driving instructor who currently runs a business, a cafeteria in Twickenham. He rides motorcars, on this occasion an Audi, and motorcycles and he cycles. He’s the owner of the white sports Audi and accepts he was driving on the day in question, 12 February 2015 and time of incident estimated to be 6:55 pm. He knows the road well, he’s driven at all times of the day he told you in all weathers. At that particular time, when he was driving, he was driving relatively short distance form having visited somebody nearby in Islay Gardens and he was on an errand in effect to Tesco’s. He told you that the weather was dry, clear, good visibility and road he accepted was quite busy. He told you that as a driving instructor, when driving he plans ahead. He saw the cyclist, Mr Porter, he saw cars ahead of him overtake cyclist. He carried on past the first bridge and at point road wider he chose to overtake Mr Porter. Before doing so he told you that there were cars behind him, seems at least one becoming impatient and hooted it seems encouraging Mr Kayardi to overtake. He made a judgment call, he calculated safe to overtake Mr Porter, and he did so. He told you that there was no danger caused to Mr Porter or to any oncoming traffic. He didn’t see any impact on the cyclist’s trajectory when he carried out this overtaking manoeuvre. He didn’t see any movement as result of speed on Mr Porter on bike. He then came to a halt at traffic lights, Mr Porter caught up with him, they pulled into speak to PC Pascoe who I’ve already mentioned, think it was Tesco, it was a supermarket car park. There was a conversation with PC Pascoe and he denied had been speeding or overtook too close: denied had been driving dangerously. With reference to JB 3, he doesn’t accept that that is a fair representation of his position in car when overtaking.
He takes the view and that’s his evidence that he was actually over the line and that the distance between the car and Mr Porter the cyclist was between 1.3 and 1.4m not 60 to 80 cm. And he overtook he told you at what he considered to be the widest part of the road. He accepts that the speed limit is 30mph on that A3115 and that before reaching the overtaking point at which point executed, there were road narrows, humpback bridge signs and a “slow” marking in the road as well as of course hazard lines. He does not accept that he was driving at the speed that Mr Croft calculates of 50 to 57 mph but he does accept that Mr Porter may have been riding at about 19mph.
He asserts that he overtook safely and in compliance with, given the circumstances, the situation he was in, the flexibility is the way I put it that the Highway Code provides. And he asserts as I’ve already said that he was, when overtaking, he was a distance across, over the hazard lines.
Members of the jury you’ve seen the film, if you wish to view it again as I’ve said you may, that’s a matter for you.
That members of the jury is the evidence in the case. Now remains for you to retire for your verdict. Before you do so I must give you a direction. Members of the jury you must reach if you can a unanimous verdict, as you may know law allows me to accept in circumstances a majority verdict of you all. But those circumstances have not arisen so I ask you to reach verdict on which all of you agree. However should time come when I can accept majority verdict I will call you back and give further information. So if you could take documents, surrender any electronic devices to usher. And if you haven’t already done so members of the jury, if you could appoint from you a woman or man to be foreperson of the jury. Members of the jury if you would now retire, thank you very much.