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A charge against the boss of the truck driver who caused the deadly Eastern Freeway crash will be heard in court, after a judge’s decision to put the allegation permanently on hold was overturned.

Trucking boss Simiona Tuteru was initially charged with four counts of manslaughter in the months after the crash that killed police officers Kevin King, Josh Prestney, Lynette Taylor and Glen Humphris in Kew on April 22, 2020.

Simiona Tuteru outside court in 2020.Credit: Simon Schluter

However, the manslaughter charges were dropped with little explanation by the Victorian Director of Public Prosecutions last year.

One charge of failing to comply with his duty under heavy vehicle laws remained against Tuteru, however Supreme Court Justice Lex Lasry in March granted a permanent stay on that charge, when he ruled the prosecution had abused the court process. Permanent stays are only granted in exceptional circumstances and are extremely rare.

Director of Public Prosecutions Kerri Judd, SC, appealed against Lasry’s decision, and on Thursday the permanent stay was set aside by the Court of Appeal.

That ruling means Tuteru will face court on allegations he knew Mohinder Singh, the truck driver he supervised, was unfit to drive, but still allowed him on the road on the day of the crash. Prosecutors allege that allowing a fatigued, and therefore unfit, person to drive a heavy vehicle was reckless and exposed the four police officers and Singh to risk. Singh later pleaded guilty to his charges.

Senior Constable Kevin King (left), Constable Josh Prestney, Leading Senior Constable Lynette Taylor and Constable Glen Humphris were killed on the Eastern Freeway in 2020.Credit: Victoria Police

Stuart Schulze, the husband of Leading Senior Constable Taylor, welcomed the Court of Appeal’s decision, which will allow the allegations against Tuteru to be tested in court.

“I’m pleased with the decision,” Schulze said on Thursday.

When granting a stay on the remaining charge in March, Lasry found that the court’s processes had been “used oppressively and unfairly by the Director of Public Prosecutions at various stages of this case”.

He said that the DPP must have known for more than a year that the manslaughter charges were not viable, but that the prosecutor’s office undertook a “glaring and oppressive” misuse of court process by continuing with the charges, and showed indifference and a lack of respect by not giving a reason for eventually dropping them.

Stuart Schulze, the husband of Leading Senior Constable Lynette Taylor.Credit: Darrian Traynor

However, three Court of Appeal judges ruled on Thursday that they were unable to see any basis on which a permanent stay could have been ordered.

“Having examined the entire history of these proceedings for ourselves, and with great respect to the primary judge, we are unable to see any basis on which a permanent stay could have been ordered in the present case,” the appeals judges said in their written judgment.

“It is … not necessary for us to consider whether his honour’s decision was unreasonable or plainly unjust. Nevertheless, had it been necessary to do so, we would have so concluded.”

Nothing in the case gave rise to anything that amounted to an abuse of process, they said.

While the prosecution’s conduct might have been suboptimal and inefficient, it was “far from oppressive”, the judges ruled.

“Imputing either bad faith or ineptitude to the prosecution absent cogent evidence of the same is both unreasonable and plainly unjust,” they said.

“The refinement and reconsideration of a criminal case is both commonplace and sound. Neither the past conduct of the prosecution nor the legal landscape of the indictment rendered this an extreme or exceptional case where the trial judge could do nothing in the conduct of the trial to relieve against its unfair consequences.”

The appeal judges noted there was no duty for prosecutors to explain to a court why charges were being discontinued, as they had a prosecutorial discretion to reconsider or alter a case.

They also accepted the DPP’s submission that Lasry’s view about the disrespectful attitude of the prosecution case against Tuteru had infected his analysis in the remainder of the ruling.

Tuteru’s case will return to court at a later date.

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