The driver charged over the death of an elderly man who was illegally using an electric bike on the highway thought he had hit a kangaroo, a Perth court has heard.

David John Kirby, 86, was allegedly killed when he was rear-ended by a silver four-wheel-drive vehicle around 4:30 a.m. on Sunday, October 9, 2022, near the southbound Hepburn Boulevard exit of the Mitchell Highway in Kingsley.

At the start of the jury trial in Perth District Court, state prosecutor Stuart Packham claimed Costantino Carmelo Mastrolembo, 45, did not stop until he got to his job at a supermarket in Subiaco, almost 20 kilometers away.

The jury heard Mr Kirby’s head hit the windshield of the car, causing catastrophic brain damage and he died at the scene.

Mr Mastrolembo was charged two days later with failing to stop and render aid after an incident resulting in death and failing to report an incident resulting in death or grievous bodily harm.

The charge of attempting to pervert the course of justice was dropped at a previous hearing.

Mr Packham told the court Mr Mastrolembo did not stop at the scene, call emergency services or render aid to Mr Kirby as required by law, and did not leave him to die on the side of the road.

He noted that the state bans cyclists from riding on the Mitchell Highway, but it is a crime to fail to stop or render aid after a collision with a cyclist.

But the jury heard from the defense that Mr Mastrolembo thought he had hit a kangaroo and caused extensive damage to his employer’s car.

Highway under construction

Aerial photos of the highway taken in the weeks before and after the crash show southbound lanes were narrowed and rebuilt.

Due to these road works, only two lanes of the motorway remained open, while the regular emergency lane was used as a traffic lane.

Cyclists are not allowed to ride on motorways in WA, but at the time there was no dedicated cycle path on this section of the motorway.

These issues have since been resolved as part of the $423 million Mitchell Highway southbound Smart Highway project.

According to one of his daughters, Mr. Kirby was described as a mechanic who was physically active, often cycling twice a day, but had early-stage dementia.

The prosecutor suggested at the hearing that it would not be investigated why Mr Kirby was cycling on the motorway in the early hours of that morning.

The court heard that when Mr Mastrolembo arrived at work he told his colleague, a security guard, that he had hit a kangaroo which had disappeared into the bush but had damaged his car.

In insurance documents filed by Mr Mastrolembo for the damage to his work car, he claimed he had hit the kangaroo at 4.10am on Flynn Drive in Neerabup, 16km from the point of collision with Mr Kirby and 22 minutes earlier.

Mr Packham said police later attended the area and found no evidence of roadkill.

The State argues that Mr Mastrolembo’s account of hitting a kangaroo was false and that his failure to stop at the scene and call 000, to move Mr Kirby’s body to the side of the road away from traffic and to remain there until paramedics arrived was grounds for culpability.

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