Author: Nyman Gibson Miralis

Represented by: Nyman Gibson Miralis

Downing Centre Local Court, Sydney

Facts: 

Our client was a taxi driver who was driving around the Rocks area of the Sydney CBD when he felt the urge to use the bathroom. He drove towards a public toilet regularly used by taxi drivers. Upon approach to the toilet block he scouted the area for any parking spots to no avail.

As a result, he drove slightly past the toilet block and towards an intersection. He had previously seen other taxi drivers park alongside the toilet. In the absence of any available parking spots he thought to do the same. As a result, he did what any other driver would do – checked his ‘mirrors’ and began to reverse park; in doing so placing his focus on the parking spot having already checked the surroundings of his car. The test for negligent driving is whether the driver did what a reasonable prudent driver would do. He slowly proceeded to park until he felt and heard a bump, at which point he stopped the vehicle and emerged to see that there was a pedestrian lying on the ground behind his vehicle.

Our client immediately called an ambulance and the police. English is not our client’s native language. Police were aware of his limited ability to speak English, though they did not bother to arrange for an interpreter. This ultimately reflected poorly on the police at the defended hearing. Police charges involved the issuing of a court attendance notice for Negligent Driving Cause Grievous Bodily Harm.

Charges and Potential Penalties:

Our client was charged with Negligent Drive Occasioning Grievous Bodily Harm pursuant to section 117(1)(b) Road Transport Act 2013. This offence carries a different penalty depending on whether or not the offence is a first offence or a second or subsequent offence. For a first offence the maximum penalty is 20 penalty units and/or imprisonment for 9 months. For a second or subsequent offence the maximum penalty is 30 penalty units and/or 12 months imprisonment. The offence also carries an automatic disqualification of 1 year for a first offence and 2 years for a second or subsequent offence.

Our client had no prior traffic history. He depended on his licence as the sole breadwinner for the family. The loss of licence upon conviction would have dire consequences.

Plea of Not Guilty: Following an in-depth analysis of the case, we were able to determine that the alleged victim had in fact walked diagonally across the road. In doing so, our client could not have seen him when he checked the surroundings of his vehicle before commencing his reverse park. This also meant that the alleged victim’s peripheral vision was limited which is why he was unable to see the taxi reversing right beside him as he walked across the road. As a result, the taxi hit him with very limited force but unfortunately caused the pedestrian to lose his footing and fall on his elbow. In doing so, this caused very serious injury to his elbow which therefore constituted grievous bodily harm in accordance with the case of Haoui v R [2008] NSWCCA 209.

Other inconsistencies were also revealed through analysis including the positioning of the dent on the rear of the vehicle, the speed and manner of driving of our client at the time of the collision and most importantly, what our client had said to the Police officers at the scene regarding the use of his ‘mirrors’.

Defended Hearing: At the hearing, the prosecution witnesses included the two police officers who attended the scene, as well as the injured man and an independent witness. In the defence case, we called the accused to give evidence as well as his employer.

The two Police officers were cross-examined on the several inconsistencies which revealed that the dent was in fact toward the right side of the boot of the car, rather than in the centre. In those circumstances, the view of him would have been limited from any angle. The alleged victim was then questioned about his approach and direction of travel across the road way. At such time he indicated he had walked diagonally across the road.

Finally our client was called to indicate that he had in fact used his mirrors and had turned his head while reversing. Had police investigated the matter properly and used an interpreter to do so, they might have come to the same view as the Magistrate and not commenced proceedings.

Lengthy submissions were made relating to the onus on drivers while on the road and the extent to which persons could be found guilty of negligent driving. Included in those was an emphasis on our client’s prudence while parking and the victim’s positioning when crossing the road.

Result: The presiding Magistrate gave a lengthy judgement but inevitably referred back to the fact that a higher standard applied in criminal matters rather than civil matters in terms the evidentiary burden to prove negligence. His Honour said that this was nothing more than an ‘unfortunate accident’. As such, our client was found not guilty.

This type of case demonstrates the need to protect your licence and livelihood by engaging experienced criminal defence lawyers and traffic experts to defend you.