Dangerous Driving Causing Death is a serious criminal offence that provides for penalties of up to 10 years imprisonment: Section 52A(1) Crimes Act NSW. The offence of Dangerous Driving Causing Grievous Bodily Harm also carries heavy penalties, including imprisonment of up to 7 years : Section 52A Crimes Act.
Both offences are the subject of a Guideline Judgment – which means that the court of Criminal Appeal has set a ‘likely outcome’ if convicted of either offence. For the offence causing death, the likely outcome is imprisonment for not less than 3 years. For the offence causing GBH, the likely outcome is not less than 2 years imprisonment [see R v Jurisic (1998) 45 NSWLR 209].
An Accident About to Happen
In March 2009, a very unlucky young man was driving in a street in the south-west of Sydney. Upon him turning into the street, there was 400 metres of 11 metre wide straight roadway ahead with one street on the left half way down the street. There were no lane lines marked and no centre line, with the odd car parked on either side, and a truck parked just past the cross-street. It was a sunny day, close to 5:00pm as the sun was setting in the west. He was driving on the correct side of the road. The young man’s life was about to be turned upside down – his passenger was about to die.
As the young man drove in a northerly direction, an elderly man drove the opposite way. He was travelling well under the speed limit. It is estimated that he would have had at least 10 seconds to view our client’s car travelling towards him. Our client saw the old man’s car. The old man did not see our client’s car – a maroon colour.
The old man wanted to turn right into the cross street. The sun was on his right. He misjudged the corner and slowed right down to turn perhaps 10 metres or more before the intersection- before realizing his mistake and moving forward, looking to the right, sun in his eyes at times – and he misjudged the corner, moving onto the incorrect side of road short of the intersection and turning into the front right hand wheel area of our client’s car. Our client was on the correct side of the roadway – he had been travelling above the speed limit of 50 km/h. The old man’s car was several metres prior to the typical point that a person might commence to turn.
The front right tyre was torn in half and ripped from the maroon car, and it spun in a clockwise motion at a tangent, rotating until the passenger side hit the back of the parked truck on an angle. The passenger was killed instantly. The driver was trapped, injured.
The old man’s car rotated slightly in a clockwise motion and stopped, the front wheels acting like a pivot. He was shaken but not otherwise injured. The old man was not prosecuted – we do not know or understand why this was not done. He caused the accident.
There were 4 main civilian witnesses for the prosecution case. One was of a driver who followed the accused’s car into the street but drove at a speed under the speed limit with a view to turning at the cross-street. The second drove from the cross-street towards the direction of where the accused’s vehicle had come. The third heard the loud acceleration presumably of the accused’s vehicle. Finally, the driver of the other car in the accident, who was uncertain about his speed and did not see the accused’s car, at all.
Expert Evidence – Crash Analysis (prior to committal hearing)
There were no mechanical defects in either car prior to the crash. Detailed measurements were taken of the crash site and various sketches, plans and calculations were made and photographs taken. The prosecution case was that the accident occurred ‘head-on’ by the front right corner of the accused’s car being hit by the front of the other car. This would later be shown to be wrong. The prosecution case had the accused’s car travelling at a speed of up to 105 km/h. This was later shown to be unreliable.
We conducted a committal hearing at Burwood Local Court in 2010 over several days and has conducted many of these types of matters as well as coronial inquests.
Through extensive cross-examination, it was shown that the civilian witnesses who gave evidence as to the accused’s driving were not accurate on a number of aspects eg. their perspective of distance was out by as much as 100% – guessing the distance between the cross-street and the end of the street at 100 metres when in fact it was 200 metres.
The witness who turned from the cross-street indicated at the time he commenced his turn, the accused’s vehicle was 50 metres away and ‘speeding’. The witness managed to make his right turn and travel for a few seconds prior to his car and the maroon car passing. He agreed that his car travelled a total of about 30 metres prior to them passing each other which included approximately 10 metres to get his car from one street to the other given that the streets were 11 metres wide; that he commenced from a standing start (zero km/h) and that he did not speed.
In other words, this witness told the court that his car travelled 30 metres which took his car 20 metres past the intersection. At the same time, the maroon car travelled 30 metres which had his car approximately 20 metres short of the intersection when they passed. They both travelled around 30 metres in the same amount of time, yet he claimed the maroon car was speeding and he was not – a logically impossible conclusion.
Cross examination was as follows:
Q: So the other car’s about 50 metres away when you first saw it?
A: The maroon car?
Q: And if it passed you as you were approximately 20 metres after the turn, it’s travelled 30 metres, correct?
A: It would have, yes.
Q: You first saw the car as you were turning?
A: Yeah, I think I did, yes.
Q: So you got this distance as you were turning which you estimate could be about 10 metres?
A: Ten, yeah.
Q: And then you’ve got a point where 20 metres beyond the turn the other car passes you?
Q: So you travelled about 30 metres?
A: Well that’s right, yeah.
Q: And the other car has travelled about 30 metres?
A: that’s about right, yeah.
Q: You weren’t speeding were you?
A: Well no, I was going slow to turn around the corner. And I stopped because I couldn’t see the traffic…
Q: So, on one scenario you’ve travelled about 30 metres, it’s travelled about 30 metres, it’s speeding but you’re not?
The driver following the accused’s car believed that the old man’s car was on the correct side of the road. Crash investigation police showed that the old man’s car was more than 1 ½ metres onto the wrong side of the road at the point of impact – the accused had been driving straight and had not deviated from that path.
The evidence from the witness who heard the revving of the car was not cross examined. It was highly likely that what that witness heard was the sound of the engine post-collision upon the front wheel being torn off prior to impact with the truck.
The expert evidence suggested a number of scenarios that lead to different speeds by the accused – any of which were said to have been dangerous driving. Speed was determined based on angles of the collision, which were calculated rather than exact; the tangential travel of both cars post-collision; the road ‘drag’, and the speed of the old man’s car based on answers he gave in a record of interview with police.
In cross examination, the old man was uncertain about speed and his evidence varied from his interview. He agreed that he commenced the turn into the cross-street several metres prior to where the turn should have commenced. It is worth noting that despite the admission by the old man, the officer in charge would not concede that point.
The expert for the prosecution was shown a photo taken by the Crash Investigation Unit officer showing the bumper bar support intact. It could not have remained in tact if the impact had been head-on. This changed the angle of impact and damaged the reliability of the evidence of speed. To the expert’s credit, he acknowledged the error in previously saying it was a head-on accident.
Notwithstanding what appeared on one view to be a reasonably strong case for discharge at committal, the Magistrate committed the accused to stand trial, as he was entitled to do.
No Bill Application pending trial
Once the local court committal transcripts were available, the criminal defence lawyer briefed a crash reconstruction expert to calculate the speed of the accused’s car prior to the initial impact. The result was a speed of approximately 68 km/h – which is not of itself inherently dangerous on a wide straight street in daylight, though it is illegal – however, being illegal did not make the speeding dangerous.
The report was served on the Director of Public Prosecutions Office with an application to No Bill the proceedings – in other words to ask that consideration be given to withdrawing the charges on the basis of a reasonable hypothesis existing consistent with the innocence of the accused.
The No Bill application was unsuccessful – however it did trigger the response from the prosecution to cease to rely upon their initial expert and try another expert, this time calculating speed by various means including the crush factor of the maroon car based on a side impact with the parked truck.
Judge Alone Trial – Sydney District Court
A sensible approach was taken by defence and prosecution to the conduct of the trial. Firstly, it was agreed that the prosecution statements and committal transcript would be tendered with the exception of the expert used in the committal. The report of the new prosecution expert and the defence expert were to be tendered and both experts cross-examined.
The second important point of agreement was to hold a judge alone trial – expert testimony is something that Judges are well capable of understanding and analysing, whereas the eyes of jurors often glaze over when scientific and mathematical information is given to them.
The learned Judge, His Honour Judge Finnane QC, suggested the possibility of ‘hot-tubbing’ the two experts – having them sit side by side and give evidence and respond to the other witnesses evidence as it occurred. It may well be the first time in a criminal trial in NSW that hot tubbing has occurred – though it is acknowledged that it has been used in civil proceedings. Both parties agreed to this practical approach.
The process worked well and each party had ample opportunity to express their opinions and be cross examined. The major stumbling block for the prosecution was that reliance was placed on calculations based on a side impact between the car and truck – clearly by the photographs of the car taken from an aerial view and side view, the impact was one of an angular intrusion. This affected the calculations of speed and caused doubt concerning the suggested speed of up to 102 km/h. The defence case speed of in the vicinity of 68 km/h was accepted. His Honour found that it was not inherently dangerous, noting that a person could simply receive an infringement notice for travelling at that speed in a 50 km/h sign posted area.
Importantly, His Honour also noted that the accused had not caused the collision – the cause of the collision was undoubtedly the actions of the old man in turning into the accused’s car. The accused had simply been driving at a speed above the limit, but not in a dangerous manner, when the old man’s car turned into the side of the maroon car.
From the moment of first impact, the accused had no control over his or his passenger’s destiny. He was not at fault. The accused was found not guilty on both dangerous driving causing death and negligent driving causing death.
Having an Accredited Specialist or a Criminal Law Specialist on your Team:
The importance of having someone with accredited expertise in these types of matters cannot be overstated. The penalties can be severe, and the Guideline Judgment points towards a lengthy custodial sentence if convicted. All of the solicitors at Nyman Gibson Miralis handle criminal defence work only. We have an accredited specialist in criminal law and criminal defence specialists available to offer you assistance and guidance through these difficult times. We offer 24/7 urgent legal advice for any type of police charge.
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