A police reconstruction expert has admitted he made a mistake in not including one key detail in his report, which could prove vital in proving the death of Jessica McLennan was caused by a dangerous criminal act.
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Brock Kusen, 20, has pleaded not guilty to the charge and his barrister Diana Price told the Wangaratta County Court this week that the prosecution could not rule out he had a “microsleep”, meaning his actions may have been involuntary.
But Detective Sergeant Robert Hay, a reconstruction expert, said a 12-metre skid mark left on Rutherglen-Springhurst Road showed Kusen had been awake to slam on the brakes.
His car, which had drifted 1.1 metres to 1.6 metres onto the wrong side of the road on the morning of June 1 last year, then slammed into two cars coming the opposite direction.
Miss McLennan, 23, died in hospital three days later.
Detective Hay said a mechanical report ruled out any other issues with the car causing the skid mark.
Investigations found Kusen’s BMW was travelling at 96km/h and most people take about 1.5 seconds to react to something like a car coming towards them.
“Forty metres prior to the start of that skid mark … is where he perceived the danger,” Detective Hay said.
“He must have been awake enough to perceive an oncoming car and put on the brakes.”
Ms Price criticised the officer for failing to include in his report that skid mark was caused by braking, and not mentioning it in any preliminary court hearings in the 17 months since the crash.
“(Wednesday) morning was the first time that you ever said to anyone in this case that there was a foot on the pedal,” she said.
“You don’t think it’s an important point in this case where you have a driver inexplicably drifting from one lane to another?”
Detective Hay said he had never been directly asked.
“I should have put it in the report, I acknowledge that,” he said.
He told the court he could not comment on whether Kusen had a microsleep at some stage before slamming on the brakes.
Major collision investigation unit Detective Sergeant Andrew Kilpatrick said he was satisfied Kusen received enough rest during previous days, but could not say if a microsleep occurred in the moments before collision.
Fatigue not the reason for crash
A thorough investigation was conducted into Brock Kusen’s movements over the five days before he allegedly caused a fatal crash.
Major collision investigation unit Detective Sergeant Andrew Kilpatrick said he looked into Kusen’s employment records, bank and ATM transactions, mobile phone history and spoke to his mother.
The point was to establish if Kusen was fatigued or had experienced a lack of sleep due to working nightshift at Alpine MDF in Wangaratta or any other reason.
Detective Kilpatrick told Wangaratta County Court on Thursday he was satisfied Kusen had enough rest to be able to drive on the morning of the crash.
He and prosecutor Andrew Moore also confirmed the accused had no criminal history, no drugs or alcohol in his system at the time of the crash and his mobile phone was on the passenger seat.
“There was no positive evidence he was using the phone by way of making a phone call or sending a message,” Mr Moore said.
The trial will continue on Friday.
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