Local Court of New South Wales CITATION: Police v Leonard [2005] NSWLC 3 JURISDICTION: Criminal PARTIES: Police Genevieve Anne Leonard FILE NUMBER: PLACE OF HEARING: Grafton Local Court DATE OF DECISION: 02/22/2005 MAGISTRATE: Magistrate C Bone CATCHWORDS: drive negligently - grievous bodily harm - death LEGISLATION CITED: Road Transport (Safety and Traffic Management) Act 1999 s 42 (1) R v Baker NSWCCA unreported 7 Feb 1985 CASES CITED: Clout v Hutchinson 1950 51 SR (NSW) 32 Musgrove v Howard 78 NSWWN 88 REPRESENTATION: Sgt S Gerrish, Police Prosecutor Mr R P O'Connor Solicitor for the Accused ORDERS: I find the offence proved Reasons for Decision 1 It is alleged against Genevieve Anne Leonard that at Woodburn on 4th July, 2003, she (a) drove negligently, (b) drove negligently and, as a result, grievous bodily harm was caused to Sarah Cooper and (c) drove negligently and, as a result, the death was caused of Joshua Paul Covell. The accused has pleaded not guilty. The statements of all police witnesses were admitted into evidence without objection together with a transcript of an interview between the prosecutor and the accused. The accused did not give evidence or call any witnesses. The Facts 2 The facts are not in dispute and are as follows. At about 4pm on Friday, 4th July, 2003, the accused was travelling alone in a white Ford Festiva motor sedan. She was driving south on the Pacific Highway and was a short distance south of Woodburn. The highway at that point is in rural surroundings and is governed by a 100km/hr speed limit. The accused was travelling at about 100km/hr. She came to a section of highway which had two south bound lanes. There was a single north bound lane and the north bound lane and the two south bound lanes were separated by unbroken double centre lines. The accused was travelling in the left hand lane (i.e. the lane closest to the side of the highway). Her vehicle, for no apparent reason, then turned sharply to the right, crossed the road and collided with a north bound vehicle. Joshua Covell, the driver of the north bound vehicle, died as a result of the collision and Sarah Cooper, a passenger in the north bound vehicle, sustained grievous bodily harm. 3 Karen Roots was driving south along the highway at the time of the collision. She was about 100 metres behind the accused's vehicle. Her evidence was as follows: I noticed the white car in front of me was still the same distance in front and doing about the same speed. It was also in the left lane. All of a sudden the car looked as though it was trying to do a right hand u-turn. The car turned sharply to the right and onto the wrong side of the road . 4 Robert Lund was driving north along the highway at the time of the collision. His fiancée, Vicki Walker, was a passenger. They were travelling at about 100 km/hr and were about 50 metres behind the vehicle in which Mr. Covell and Ms. Cooper were travelling. Mr. Lund's evidence was as follows: I saw a small white car that was travelling towards us, it appeared to be travelling in the extreme left hand side of its lane. I saw smoke or dust coming from its left wheels. About the same time I saw the vehicle swerve hard right, towards our lane. This all occurred in a very short space of time. I thought the driver of the vehicle was trying to do a u-turn to get in front of us. The car has come across to the wrong side of the roadway and the front passenger side of the white car has collided with the front of the car that we were following . 5 Vicki Walker was looking down when Mr. Lund said something. She looked up and saw the accused's vehicle "going sideways across into our lane". Janet Hayes came upon the scene of the collision a few minutes after impact. She spoke to the accused and, after a little while, asked her what had happened. The accused said "The car just went off the road, I couldn't do anything". 6 On 9th September, 2003, the accused attended Grafton Police Station with her father and her solicitor. She agreed to be interviewed about the matter. She was asked to explain what happened in the accident and she said: I was driving and the car suddenly pulled to the left, the front left wheel clipped the edge of the road and there was a white reflector post in front of me and I tried to miss that. I pulled the wheel to the left and I tried to miss that. I pulled the wheel to the right, I didn't jerk it, I just tried to guide it off, back onto the road, and it just veered sharply across onto the other lane, into the path of the oncoming car. And then I was knocked unconscious as soon as I hit the car, other car . 7 The accused was asked a number of questions about her driving experience, her consumption of alcohol, her speed immediately prior to the collision, the condition of her car and whether she was using a mobile telephone immediately prior to the accident. Her answers did not reveal anything that may have caused her vehicle to collide with Mr. Covell's vehicle. At one stage during the interview, the accused was asked if she had applied her brakes at the relevant time. She said that she had not used her brakes before she veered to the right but did not know if she was using them at the time of the collision. 8 The prosecutor attended the scene of the collision at about 4.45pm on 4th July, 2003. He observed that the roadway was level and straight and the view was unobscured and open for traffic in both directions. The road surface was dry and, other than collision debris, was clear of oil and loose material. Const. Norton also noticed tyre burn marks which led back from the point of impact. They ran in an arc across the south bound lanes to the eastern grass gravel shoulder of the south bound portion of the highway. The tyre burn marks then continued along the grass/gravel verge for about 30.2 metres. The prosecutor expressed the opinion that the tyre marks were consistent with a vehicle under harsh steering that has caused the tyres to start sideslipping while rotating. 9 Constable Wreford, a motor mechanic with extensive experience, examined the vehicle which the accused had been driving and could find no mechanical defect or component failure which may have contributed to the collision. The issues 10 The accused's solicitor indicated in his submission that the accused accepted that the evidence established that she was driving a vehicle which collided with another vehicle and that as a result of the collision one person in the other vehicle was killed and another sustained injuries which amounted to grievous bodily harm. The element of the alleged offences which is disputed is that of negligent driving. Statutory Provisions 11 Section 42(1) of the Road Transport (Safety and Traffic Management) Act, 1999 states: (1) A person must not drive a motor vehicle negligently on a road or road related area. Maximum penalty: (a) if the driving occasions death—30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence), or (b) if the driving occasions grievous bodily harm—20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence), or (c) if the driving does not occasion death or grievous bodily harm—10 penalty units. 12 This section creates one offence, that being the offence of negligent driving. The maximum penalty depends upon the outcome of the act of negligent driving Legal principles 13 Onus and standard of proof: in order to have the accused convicted, the prosecution must establish beyond any reasonable doubt that the accused is guilty. The fact that she did not give evidence does not alter this basic principle. 14 The concept of negligent driving: although the expression "negligent driving" has been in common use for many years, it remains somewhat difficult to provide a precise definition of the term. In Howie & Johnson's "Criminal Practice and Procedure NSW" the authors state at para 13-30,505.5: " Negligent driving is difficult to reduce to a set of rules. It covers a multitude of sins. It relates to the circumstances of the occasion. What would constitute the offence in one instance would pass without censure in another ". 15 It is clear that the degree of negligence which is required to prove an offence under the Crimes Act is higher than the degree of negligence required to prove a summary offence under traffic legislation (Clout v. Hutchinson 1950 51 SR (NSW) 32). 16 Peter Gillies, author of "Criminal Law" states that negligence may be viewed as conduct which creates a risk of harm to a person or to property, the risk being unjustifiable. He states that a person is negligent if her or she "fails to exercise such care, skill or foresight as a reasonable man in his (or her) situation would exercise". 17 It is clearly the case that the legal maxim res ipsa loquitor ("a thing speaks for itself") does not apply to criminal proceedings (ex p. Musgrove; re Howard 78 NSWWN 88). The fact of the matter is that in a criminal prosecution, the prosecution bears the onus of proving guilt and must establish beyond a reasonable doubt that the offence has been committed. That does not mean, however, that in circumstances in which there is no clear reason for a vehicle collision to have occurred, an accused must be acquitted. In ex p. Musgrove; re Howard the facts were that a police officer came upon the accused standing beside his vehicle which was upside down just off the roadway. The accused indicated that he had been driving the vehicle , he had got into some loose gravel and overturned. He gave no explanation as to why he had gone from the bitumen surface of the roadway into the gravel although he raised the suggestion of a mechanical defect. The existence of mechanical defect was rejected by the magistrate. The magistrate convicted the accused accepting, as a matter of law, that the principle of res ipsa loquitur applied and that the onus was on the accused to establish his innocence. In his judgement, Collin, J. said: "……………the magistrate was in error in law in holding that the applicant was guilty of the said offence, not because there was no evidence that the applicant was guilty, but because the reasons he gave for finding him guilty completely vitiate his decision ." 18 A case which has some factual similarity to both ex p. Musgrove; re Howard and the present case is R. v. Baker (NSWCCA unreported 7th February, 1985). In that case, the appellant had appealed against her conviction for culpable driving (driving in a manner dangerous to the public, causing death). On 4th July, 1981, the appellant was driving along a street in Gymea when her vehicle crossed onto the wrong side of the road and collided with an on-coming vehicle. The passenger in the appellant's vehicle was killed. Although one witness suggested that the appellant had pulled out to overtake a vehicle travelling in the same direction, the evidence of this witness was at odds with all other evidence. Street, CJ, who delivered the major judgement, indicated that "the weight of the evidence pointed ………. to a movement (to the other side of the road) for no apparent reason". The appellant , when asked for an explanation as to why her vehicle had gone on to the wrong side of the road said "No, I don't know why my car would have gone over to the other side of the road". 19 The trial judge's summing-up was quoted at length by Street, CJ. Part of what the trial judge had to say was as follows: Now the Crown does not have to establish any reason for the vehicle moving to the wrong side of the road. The Crown, however, does have to establish that the movement onto the wrong side of the road occurred whilst the car was under the control of the accused. Thus, it is not necessary for the Crown to establish that the accused deliberately swerved that car to the wrong side. If that movement to the wrong side of the road occurred whilst it was under the control of the accused and due perhaps to her lack of attention to what she was doing, where she was going or the state of the traffic, then nonetheless she was driving. She is driving if that vehicle is under her control, even though she is not paying attention. 20 The trial judge spoke to the jury about the sorts of things that could prevent a driver from having control over a car - a sudden loss of consciousness, an obstacle on the roadway, the motorist being attacked by someone. He then said: So, the Crown says, you will look at all that, and from all that, you could be satisfied beyond reasonable doubt, that the accused was controlling the car at the time of this veering over to the wrong side of the road. The Crown does not suggest or does not give any reason for it, but the Crown says it has excluded a number of alternatives, and that you are left with the only inference, that the car moved whilst it was under her control. Whether it be because there was a lack of attention at the time, whether it be for some other reason, the Crown does not have to establish that . 21 Later in his summing-up the trial judge said: The Crown does not have to prove that she deliberately did it. If the Crown has satisfied you that the car was under her control then, in the sense that she was the one holding the steering wheel and operating the pedals, then the Crown has established that she was the driver at the time. Subject to this: if at the time the movement was due to some sudden loss of consciousness on her part so that she was not in control then the Crown would not have established that she was driving. Now the onus is upon the Crown to satisfy you beyond reasonable doubt that she was in control of the car and that the movement of that car was as a consequence of her control over it. It may be that the movement of the car was due not so much to a deliberate act on her part as to the fact that she was controlling it whilst her attention was directed elsewhere or while she was not giving due and proper attention to what she was doing. But she would still, in those circumstances, be driving the car. But if you have some doubt, if you have a reasonable doubt as to whether she was in control of the car at the time, then you must find her not guilty. 22 Street, CJ, indicated that the summing-up of the trial judge was precise and correct and the appeal was dismissed, the other members of the Court concurring with the reasons given by the Chief Justice. Conclusion 23 The vehicle which was being driven by the accused veered suddenly from its southerly path to the right. The accounts of the accused and Mr. Lund indicate that, immediately before that sudden diversion, the vehicle was very much to the near side (or left side) of the bitumen carriageway. Mr. Lund said "it appeared to be travelling in the extreme left hand side of its lane. I saw smoke or dust coming from its left wheels." The accused has indicated that "the car suddenly pulled to the left". The possibility of some type of mechanical defect which may have caused any movement to the left has been extinguished beyond reasonable doubt (evidence from Const. Wreford). The possibility of there being some obstruction or liquid on the road surface which may have caused any movement to the left has been extinguished beyond reasonable doubt (see evidence of Const. Norton). There is no evidence of the accused having sneezed or otherwise having been deprived of her ability to concentrate upon her driving responsibilities or control the vehicle. The facts in this case are very similar to the facts in R. v. Baker. The only rational conclusion which can be reached is that the accused failed to exercise the care, skill or foresight that a reasonable person in her situation would have exercised. 24 I find the offence proved. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.