A BURWOOD man has pleaded not guilty to three charges following the death of one person and the serious injuries of two others at Rainbow.
Kent Ballan, 54, appeared before Horsham Magistrates' Court on Tuesday for a committal hearing after a car crash on January 5.
The court heard Mr Ballan was driving a Toyota LandCruiser utility vehicle in a private paddock near Lush Road and Rainbow-Nhill Road with a passenger in the front and another six people in the tray.
The group was spotlighting when Mr Ballan turned the vehicle to the left and it rolled, killing Colac man Brendan Hutton, 31, injuring the remaining passengers.
Police laid seven charges against Mr Ballan but Magistrate Ross Maxted dismissed four - including three charges of reckless conduct endangering serious injury and one count of dangerous driving causing serious injury.
Mr Maxted ordered Mr Ballan to stand trial to answer to the remaining three charges - dangerous driving causing death and two charges of dangerous driving causing serious injury.
Evidence presented during the committal hearing hinged on the accuracy of a forensic crash report, whether injuries sustained by two victims could be considered protracted and substantial, and whether Mr Ballan could have reasonably foreseen the risk of his actions.
Crown prosecutor Damian Plummer argued that Mr Ballan had caused protracted and substantial injury to two of the victims, Chantelle Ballan and Daniel Ballan.
Ms Ballan received multiple rib fractures on both sides, a broken breastbone, traumatic pancreatitis, and damage to other organs requiring hospitalisation for a week at both Wimmera Base Hospital and the Royal Melbourne Hospital.
Referring to Ms Ballan's week in hospital Mr Plummer said: "A week could satisfy that part of the definition of protracted. The bilateral rib fractures could meet that definition alone."
Victorian Institute of Forensic Medicine's Maaike Moller gave evidence regarding the injuries each victim received, which defence lawyer Mr Tovey relied upon to dispute Mr Plummer's argument. He referred to Dr Moller's evidence that Ms Ballan was stable after just three days in hospital.
He said this meant Ms Ballan's injuries did not meet the definition of substantial and protracted.
Mr Maxted upheld the charge of dangerous driving causing serious injury regarding Ms Ballan, but dismissed the same charge regarding Daniel Ballan because he required only an overnight hospital stay.
"With respect to Chantelle, she became sufficiently injured to the extent that Wimmera Base Hospital facilities were unable to manager her," he said. "The accused will be committed to trial on that charge."
The same charge was also upheld for injuries to another victim, Zoe Rohrlach, who suffered multiple facial and spinal fractures.
No evidence was presented to the court in relation to Ms Rohrlach.
The prosecution and defence also argued on evidence regarding the speed at which Mr Ballan was travelling at the time of the crash.
Major Collision Investigation Unit Detective Leading Senior Constable Michael Hardiman investigated the scene and was called as a witness. He told the court Mr Ballan was travelling at 83 kilometres an hour when the crash occurred.
However, Mr Tovey disputed the evidence, questioning Mr Hardiman's methods and referring to witnesses who put the speed as between 40kmh and 50kmh.
Mr Hardiman said he would have to repeat some testing to ensure his evidence was accurate. However, he told the court he remained confident the speed he provided was correct.
The third witness was Detective Leading Senior Constable Wayne Reynolds, also of the Major Collision Investigation Unit, who gave evidence relating to police attendance at the scene.
Mr Maxted also dismissed three charges of reckless conduct endangering serious injury.
"There is some conjecture ... that the speed of 83 kilometres an hour may need to be re-assessed," he said.
However, Mr Maxted also referred to earlier comments from Mr Plummer that even if Mr Ballan had been driving between 40kmh and 50kmh, there was still an appreciable risk.
"This is a regrettable incident for everyone and it is extremely sad that a regular event in Victoria could result in such seriousness," Mr Maxted said.
With regard to his dismissal of the three charges of reckless conduct endangering serious injury, Mr Maxted said it did not equate to criminal recklessness.
"Just because injury occurred does not mean he foresaw it in a criminal way," he said.
"In respect to charges five, six and seven he did not form an appreciable risk of serious injury."
Mr Ballan will stand trial at Horsham County Court on October 24.
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