P v Adrian Norman McIlwrick [2010] NSWLC 5

Local Court of New South Wales

CITATION: P v Adrian Norman McIlwrick [2010] NSWLC 5

JURISDICTION: Criminal

PARTIES: NSW Police Adrian Norman McIIwrick

FILE NUMBER:

PLACE OF HEARING: Bega Local Court

DATE OF DECISION: 03/02/2010

MAGISTRATE: Magistrate Bone

CATCHWORDS: Drive motor vehicle in a manner dangerous to the public,negligent driving, onus of proof

LEGISLATION CITED: Road Transport (Safety and Traffic Management) Act 1999

McBride vs. R. (115 CLR 44) Pope v. Hall (30 SASR 78) CASES CITED: R. v. Hoffman (unreported NSWCCA) 2nd December 1963 R. v. Spurge 1961 2QB 205 Sik v. Lajos 1962 SASR 146 Hayes v. Swain 1975 RTR 40

TEXTS CITED: In Howie & Johnson Criminal Practice and Procedure NSW Peter Gillies, Criminal Law

REPRESENTATION: Sgt. M. Chaplin, police prosecutor Mr. P. Thompson, solicitor

ORDERS: The accused is found not guilty of; Drive Manner Dangerous. The accused is found guilty of Negligent Driving.

Reasons for Decision

1 It is alleged against Adrian Norman McIlwrick that he drive a motor vehicle in a manner dangerous to the public at Narrabarba on 20th May, 2008. It is alleged in the alternative that he drove the vehicle negligently. The accused has pleaded not guilty to those charges. He has pleaded guilty to six minor matters relating to his use of the vehicle but which have no relevance to the quality of his driving

The facts 2 The facts of the case are straight-forward and may be stated as follows. 3 Imlay Road is a sealed road which runs off the Princes Highway south of Eden and goes through in a westerly direction to Bombala. The road has one lane in each direction, it is in terrain which is generally undulating and well-vegetated. The road is frequently used by heavy vehicles, particularly vehicles carrying logs. It was described by a witness as a road on which "if you don't know it, you need to be careful". The witness indicated that the verges were narrow, there were steep drop-offs and it was hilly and winding. 4 At about 7.15am on 20th May, 2008, Danny Williams was driving a truck with a load of machinery in a westerly direction (i.e. away from the Princes Highway). He was approaching the bottom of a hill known as Anteater Hill. He noticed a log truck coming towards him. The log truck was travelling very fast and the trailer was starting to tip over. The truck went quickly to its left in an obvious move to miss Mr. Williams. The truck went past Mr. Williams and Mr. Williams then saw it collide with a following truck being driven by Alan Hite. 5 After the log truck had passed Mr. Williams, its lean became more pronounced. Mr. Hite, who was driving an unladen truck, moved as far to his left as he could but the trailer of the log truck tipped over and there was a collision. Nobody was injured. 6 The log truck, which had been driven by the accused, was inspected carefully by Peter Bache, an experienced vehicle registration inspector with the Roads and Traffic Authority. Mr. Bache explained (and his evidence on this point was subsequently corroborated by the accused) the braking system used on a prime mover towing a trailer. There are three separate brakes which a driver can utilise. The first is the engine brake, the second is the foot brake and the third is the trailer brake. Mr. Bache indicated that only the foot brake was effective and that a driver would have been fully aware of the brake problems as soon as the brakes were used. 7 The accused gave a statement to police and he gave evidence. With one or two minor exceptions, his statement and his evidence were the same. His evidence was as follows. He was born in 1967 and began driving heavy vehicles when he was seventeen. He has driven semi-trailers, B-doubles and road trains. He had worked for a logging company in the Eden area for four or five months prior to the day of the incident. He had, in the course of that employment, driving logging trucks on the Mt. Imlay Road once or twice a day. That company went into liquidation and the accused looked for a new job. He found one with the owner of the vehicle he was driving on the day of the incident. It was his first day with his new employer. He met another employee at Eden at around 5.30am. They were driving to Cooma where the accused had been advised he would be told about his new position and given appropriate information and directions. As they were travelling along Imlay Road a truck from his new employee's company pulled them up. This truck, going in an easterly direction, was being driven by "the boss's son". The rig consisted of a prime mover and two trailers (i.e. a B-double). The driver was taking a load of logs to a depot on the Princes Highway. The driver told the accused that there had been a change of plans and asked the accused if he could take the logs to the depot and then ring Cooma for further directions. The accused agreed. He asked the driver if there were any problems with the truck, the driver said "no" and the accused set out. 8 The accused gave detailed evidence as to the operation of brakes on a B-double. The engine brake (sometimes called the jake brake) requires the driver to use a switch and then regulate the speed of the vehicle by the use of the gears. The prime mover brake requires the driver to use a foot-brake. The trailer brake requires the driver to use a lever on the steering column. 9 The accused travelled a few kilometres without any necessity to use the brakes. He then reached the top of a hill leading down to the crossing over Imlay Creek. As he was going down that hill he realised that "the engine brake didn't seem to be working that well" and that the prime mover brake seemed to be "OK but not 100%". The accused decided that he needed to stop. He knew that the road along which he was travelling was relatively narrow, had narrow verges and steep drop-offs, carried quite a lot of heavy traffic, had very few places where it was safe or practicable to stop a heavy vehicle, and decided to pull up at a spot near the eastern end of Imlay Road. That stop was, by his rough estimate, about twenty kilometres further on. 10 After leaving Imlay Creek, the road is relatively flat until the top of Anteater Hill is reached. The accused travelled along at a speed which he said was "eighty, eighty odd" and "seventy, eighty, ninety". He travelled at "pretty much the speed I normally go". As he started to go down Anteater Hill, he applied the engine brake. It did not seem to be steadying the truck so he applied the trailer brake. That had little effect so he applied the prime mover brake. That steadied him a little but the vehicle picked up speed to such an extent that he had little control, he saw the two on-coming trucks, he tried to go as far to his left as he could but, after passing the first truck, all he could do was "hang on".