MORABITO v REGINA [2007] NSWCCA 126

New South Wales Court of Criminal Appeal

CITATION: MORABITO v REGINA [2007] NSWCCA 126

HEARING DATE(S): 20 April 2007

JUDGMENT DATE: 20 April 2007

JUDGMENT OF: Mason P at 1; Hidden J at 63; Rothman J at 64

EX TEMPORE JUDGMENT DATE: 20 April 2007

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – Appeal – verdict — whether unsafe or unsatisfactory — role of appellate court – whether verdict open to jury acting reasonably - CRIMINAL LAW – Appeal – appeal against sentence – whether sentence manifestly excessive - CRIMINAL LAW – Appeal – appeal against sentence – whether trial judge based sentence on correct level of offender's culpability

LEGISLATION CITED: Crimes Act 1900

CASES CITED: M v The Queen (1994) 181 CLR 487 Weiss v The Queen (2005) 224 CLR 300

PARTIES: Gimmi MORABITO REGINA

FILE NUMBER(S): CCA 2007/11

COUNSEL: Appellant: J Dailly SC/ B Vasic Crown: L Lamprati SC/ J Dwyer

SOLICITORS: Appellant: Stoikovich Macri Crown: Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 05/31/0242

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

LOWER COURT DATE OF DECISION: 5 October 2006

IN THE COURT OF CRIMINAL APPEAL CCA 2007/11

MASON P HIDDEN J ROTHMAN J

Friday 20 April 2007

Gimmi MORABITO v REGINA JUDGMENT 1 MASON P: Mr Dailly of Senior Counsel has put the appellant's case well. I am nevertheless of the view that the jury's verdict must stand. 2 This is a sad case for the victims and the appellant and for their respective families. The role of this Court is to determine the matter in accordance with the law and our function as an appellate court. 3 The appellant appeals against his conviction on four counts of dangerous driving, three causing death and one causing grievous bodily harm. The accident in question occurred on 5 March 2004 on the Pacific Highway near Bulahdelah. It was daylight. Conditions were fine and the road was dry. 4 The appellant was driving a Volvo prime mover towing a trailer laden with steel pipes. He was going at about 90 kilometres per hour, the speed limit being 100 kilometres per hour. He was travelling south along a straight stretch of several hundred metres. There was a single marked lane approximately 3.6 metres wide bordered with a white fog or edge line, with a three metre wide bitumen breakdown lane on the left or eastern side. There was a fair amount of traffic. 5 The Crown case accepted by the jury was that the appellant was inattentive to his driving. 6 The defence case advanced in a record of interview and the appellant's sworn testimony was that just before the appellant's vehicle hit the Toyota Hilux ahead of him, something caused the appellant's windscreen to shatter or craze so that he could not see through it. This assertion was challenged by the prosecution on several bases. The primary Crown case throughout was that the Volvo's windscreen only shattered in the ensuing accident. The prosecution also contended that if the shattering preceded impact, the accident would still have occurred because of the appellant's previous inattention. 7 The case went to the jury on the basis that they could convict on either factual hypothesis so long as the jury was satisfied that the manner of driving causative of death or grievous bodily harm was dangerous. The judge told the jury: The manner of driving, members of the jury, includes all matters connected with the management and control of the vehicle when it is being driven, but there is an important distinction to be drawn between mere negligence and driving in a manner which is dangerous. For an episode of driving to be classed as dangerous there must be some serious breach of the proper conduct of a vehicle on the roadway; so serious as to be in reality and not just a matter of speculation, potentially dangerous to another person or persons. The Crown does not have to establish that the accused knew, or realised, that he was driving dangerously. The test is an objective one. 8 Mr Kevin Gooch was travelling southwards in front of the appellant driving a Toyota Hilux four wheel drive. His passengers were his father, Don Gooch, and his nephew, Luke Styles. Keels Road is a small, unsealed road that intersects with the highway on the west. Mr Gooch slowed and stopped, waiting to turn right into Keels Road when the northbound traffic would permit it. His indicator was on and he stopped close to the centre of the road. His car was almost 1.7 metres wide. Before he came to a stop, a vehicle later identified as a Land Rover Discovery that had come up behind him passed him on the left-hand side using the breakdown lane. That Discovery was immediately ahead of the appellant. 9 Mr Kevin Gooch said that a few seconds after the vehicle had gone past on the left side, he glanced in the mirror and saw a semitrailer coming behind. He estimated it to be about 100 metres or more back. He pumped his foot on the brake two or three times to indicate that he had stopped, waiting to make what to him was a familiar right-hand turn. Luke Styles, who was sitting behind him, looked back and saw the semitrailer approaching, not slowing down or deviating. He looked again to the front and again to the back. He told his uncle that "this fellow's not moving over...he's not slowing down" or words to that effect. 10 The appellant did not observe the vehicle that passed Mr Gooch on his left, nor did he see the blinkers or brake lights on the Gooch vehicle. His semitrailer crashed into the nearside rear of the Hilux, pushing it into the path of a northbound Toyota Landcruiser, colliding head on. This was the car in which Mr Wood was a passenger. He is the man whose serious and permanent injuries were the subject of the count involving grievous bodily harm. 11 It is common ground that following the collision with the Hilux, the appellant lost the ability to steer and from that point onwards the truck was out of control. 12 The appellant's vehicle continued in a southerly direction, crossing to the incorrect side of the highway before colliding with two northbound vehicles. One was a Hyundai Excel driven by Mrs Barbara Cheadle, with her granddaughters Rebecca and Jessica Campbell as passengers. All three members of the family died instantly from the impact. 13 Shortly after coming to rest, the Hyundai Excel burst into flames, engulfing both vehicles. The appellant's prime mover was extensively damaged. By this stage its windscreen was knocked completely out, although it was not scientifically possible to prove whether this occurred before, at or after the impact with the Hilux. 14 At a speed of 90 kph, the appellant's vehicle would have been travelling at twenty-five metres per second before braking. The appellant said in evidence that he usually maintained a space of forty to fifty metres between his vehicle and the one in front. 15 The appellant's vehicle was almost 2.5 metres wide. There was therefore room for it to have passed the Hilux on its left, as the Discovery had done, had the appellant reacted in time to do so. There was in fact considerable evidence showing that that did not occur because the appellant failed to observe the Discovery diverting to the left or the stationary Hilux with its blinker on. The appellant accepted that he did not see the stationary Hilux both in his record of interview and his sworn evidence (see the Transcript of ERISP, Q & A 128, and Transcript 1, June 2006, p37). 16 Sergeant Dawson of the Newcastle Crash Investigation Unit attended the accident site and gave evidence of his observations as well as some evidence of an expert nature. Sergeant Dawson observed gouge marks obviously caused as the Volvo struck the back of the Hilux. He examined immediately to the north looking for tyre lockup marks, brake marks or any other gouge marks, or anything that might lead him to believe something happened prior to the initial point of impact, but he found nothing (Transcript, 31 May 2006, p52). Sergeant Dawson also found evidence corroborating that the Gooch vehicle had its indicators on prior to the accident. 17 In the company of his solicitor the appellant was formally interviewed by the police on 20 April 2004. Early in the interview the solicitor presented a prepared witness statement of his client. In it the appellant said: I was driving along when suddenly I was unable to see in front of me as the windscreen shattered. I do not recall how or why the windscreen shattered. I believe, although I am not able to say with certainty, I lightly applied the brakes. I then heard and felt an impact at the front of my vehicle. After this I did not have control of the vehicle. 18 Asked in the interview whether he knew what may have caused the windscreen to shatter on the day, the appellant said that it could be two things, "could be a stone from the road, could be someone threw something at the windscreen". The appellant said that he did not see anyone around. (Neither did the witness Gooch, the driver of the stationary Hilux.) The appellant said in the record of interview that because the glass was shattered into little bits he could not see through the windscreen (Q & A, 77-81). 19 In his evidence at trial the appellant said he was travelling about forty to fifty metres behind the car in front. He did not notice any car in front with an indicator or blinker light on. As he was driving, the "windscreen went all white, shattering and all white" (Transcript, 1 June 2006, p39). He did not hear any noise beforehand or see anything strike the windscreen. The transcript records him saying that he "proached (as said) the brakes" and the next thing he heard and felt was a bang. 20 The shattered windscreen explanation was challenged by the prosecution at several levels. It was put to the appellant in cross-examination that the accident occurred because he was not paying attention and that the windscreen broke when the semitrailer hit the Hilux. 21 The prosecution also relied upon the evidence of Mr Gooch and his nephew as to the significant distance the Volvo was back from the Hilux when they saw it as it bore down upon them. The Crown submitted that the appellant had time to slow down and space to go around the stationary Hilux. The absence of skid marks from the semitrailer were also difficult to reconcile with the appellant's version of events. At the very least it indicates that the appellant was virtually on top of the Hilux when, if his evidence is true, the windscreen shattered. As indicated, the Crown case was that the offences were also proved on this alternative hypothesis. 22 The Crown case also addressed the windscreen scenario head on. It was proved that the Volvo was manufactured in September 1992 and purchased by Heggies Bulk Haul in October of that year. The prime mover was sold to the appellant in May 1996. The appellant swore that he never replaced the windscreen while the truck was in his ownership. The Volvo also had a stone guard on its front up to about ten to twelve inches below the appellant's eye level. 23 The Crown could not prove that the windscreen was not changed during the Heggies era. According to the appellant, the vehicle had about 300,000 kms "and something" on the clock when he bought it. It had previously been a coal truck. Mr Adams, the national product support manager from Volvo Commercial Vehicles, said that it was his experience that it was "a regular feature of the trucking industry that windscreens [were] replaced because of stone chips" (Transcript, 31 May 2006, p22). He opined that he doubted that a vehicle could be twelve to thirteen years old and still have its original windscreen. He was, of course, talking of the whole period from manufacture to accident. As indicated, the appellant owned the car for the greater part of that time and he had not replaced the windscreen. 24 Mr Adams also gave evidence that it was Volvo's choice at the relevant time to follow the European standard and fit laminated windscreens at the time of manufacture. A representative of O'Brien's Glass Industries gave evidence that if a laminated windscreen was struck by an object it would show a circular pattern, concentric circles coming out from the point where the object struck the glass, with lines running out from that point. In other words, it would not have shattered in a way that behaved in the manner described by the appellant or that would have completely blinded the driver. 25 The Crown case went to the jury on the basis of showing that the appellant failed to keep a proper lookout. But it was also put in the alternative that if the jury found it was reasonably possible that the windscreen broke only a very short time before the impact with the rear of the Hilux, that still did not explain why on a clear day with clear visibility on a flat, straight stretch of the highway, while the appellant was sitting in an elevated position, the appellant failed to see what was happening in front of him. 26 Senior Counsel for the appellant, who also represented him at trial, submitted to us that one and a half to two seconds perception and reaction time would be expected before an alert driver could be expected to brake in response to some stimulus. He also submitted that allowance should be made for the fact that the Discovery vehicle was between the appellant's semitrailer and the Hilux, thereby masking the Hilux's flashing indicator, at least until the Discovery deviated to the left. 27 If the appellant was travelling at about fifty metres behind the car in front, this would have left little or no margin for error, even for a driver responding to a car ahead moving at his or her pace suddenly stopping or slowing. That would suggest room for caution about endorsing either the accuracy or the safeness of the appellant's asserted spacing of fifty metres as his driving practice. 28 Furthermore, the submission does not really allow for the opportunity the appellant had to react to the sight of the Discovery passing on the left in the breakdown lane, nor to the evidence of Mr Gooch and Mr Styles about them having clear vision of the approaching semitrailer from approximately 100 metres back. There is also the evidence of Mr Gooch pumping the brakes of the Hilux to attract the semitrailer's attention. 29 These matters show that the period of inattention was well capable of being found to be more than momentary, if I may borrow from sentencing law parlance. When sentencing, the learned judge said he was satisfied that the inattention for whatever reason spanned at least some seconds. I agree that such conclusion was well open to the jury also. Given the circumstances of a heavily laden semitrailer travelling a 90 kph down a busy highway, the jury were in my view well entitled to find the case proved to the requisite standard. 30 The appellant makes no complaint as to the summing up. His sole ground of appeal on conviction is that it was not open to the jury acting reasonably to be satisfied of guilt beyond reasonable doubt. The legal principles are not in dispute, see M v The Queen (1994) 181 CLR 487 at 493. The task of this Court is to review the whole of the record of the trial, making its own independent assessment of the evidence in determining whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty (Weiss v The Queen (2005) 224 CLR 300). 31 The Crown had to show in this case that the appellant was guilty of more than want of due care. In the circumstances it had to be established that he drove "in a manner dangerous to another person or persons " (Crimes Act 1900, s52A 1(c)). The test is objective and inattention is of itself no defence. 32 The appellant submits that the Crown case was circumstantial and that guilt could only be inferred when no other reasonable explanation could be drawn. It is also submitted that the evidence established that it was at least a reasonable possibility that the appellant's windscreen shattered before the collision with the Hilux, thereby effectively blinding him. It is further submitted that there was no credible evidence to suggest that this occurred at a time when it had no relevant impact on the cause of the collision. 33 I cannot accept any of these propositions. Given the totality of the Crown evidence, the jury were entitled to reject the entire account of the windscreen that shattered before impact. What is important in this Court is whether the jury were entitled to reach that verdict. We are not permitted to form our own opinion on the matter other than in the context of the principles in Weiss' Case that I have already stated. 34 My understanding of the principles relating to challenging a conviction on the ground that the jury's verdict was unreasonable is that the appellant must persuade the appellate court that it was not open to the jury acting reasonably to arrive at their verdict. If one path to a conviction is open and beyond successful attack by reference to this standard, then an appellant who cannot disentangle the jury's verdict is unable to sustain the burden of displacing that verdict. In any event, the jury was in my view equally entitled to conclude beyond reasonable doubt that even if the appellant was possibly to be believed on the matter of the shattered windscreen, dangerous driving causative of death and grievous bodily harm were still established. The summation of the evidence that I have already given explains my basic reasoning as to these propositions. 35 The appellant is entitled to have this Court weigh, as did the jury, his practically unchallenged evidence about the background of the accident. The appellant was aged sixty-seven at the time, a truck driver with forty-four years experience. He had driven all the way from Brisbane to the accident scene but had had appropriate rest stops on the way. It is not suggested that he had consumed alcohol or drugs, and there was no evidence of any specific event that diverted his attention. Indeed, there was the appellant's sworn evidence to the contrary. 36 The appellant also swore that he gave his version of the accident to Luke Styles when he saw him at hospital on the day of the accident. Mr Styles said that the appellant told him words to the effect of "sorry ... couldn't see the windscreen. I couldn't see anything, I just seen something big" (Transcript, 29 May 2006, p31). Mr Styles would not agree that the words used were that the appellant could not see through the windscreen. To my mind, this particular evidence is inconclusive given the uncertainty as to what was said. Furthermore, the appellant's version of the conversation rises no higher than showing the consistency of his version of events from the day of the accident onwards. The weight of the evidence still depends upon his credibility as a witness. 37 This was not a case where the jury were bound to accept the appellant's sworn evidence. To put it at its lowest, there was a good deal of material to the contrary. 38 The appellant places some weight on the evidence of Mr Husband, who was driving a Freightliner truck immediately behind him. Mr Husband said that he saw the appellant's brake lights "flicker, come on, next minute I saw the semitrailer go up in the air". In-chief he estimated the time gap between the brakes flashing and the cab going up in the air at about three seconds. 39 The trial took place in May-June 2006. Having obtained leave to cross-examine on a prior inconsistent statement, the prosecutor put to Mr Husband that in a statement of 10 May 2004 he had said "I couldn't see anything in front of the truck. The next thing I saw was the brake lights flash on the trailer and it would not have been more than a split second before I saw the cabin of the truck get airborne." Mr Husband agreed that his recollection of events would have been better than it was when he was giving evidence at trial and that it was just a split second as distinct from a three second time gap. Time estimates by lay witnesses, of course, always need to be viewed cautiously, but this observation cuts both ways on the facts of this case. 40 At the end of the day I do not think that Mr Husband's evidence assists the appellant in showing that it was not open to the jury to find guilt beyond reasonable doubt. If the appellant had put the brakes down heavily before impact there would probably have been marks to show it. If he did not, then a range of hypotheses are open. Some may assist the appellant, some do not. 41 The appellant suggests that Mr Husband's evidence corroborates his version in that it suggests no harsh braking and no swerving. It seems to me that while this evidence is consistent with the appellant virtually running into the back of the Hilux without attempting to stop, such a proposition provides no positive support for the hypothesis that the appellant was blinded by a suddenly shattered windscreen. Taken by itself, it equally supports the hypothesis that the appellant did not appreciate that the Hilux was stopped until it was too late. 42 Road resurfacing work had been carried out by the RTA in the area just to the south of the accident on 9-10 February 2004. During this period the speed limit was 80 kph. Line marking occurred on 18 February and the 100 kph speed limit was restored at that time. There was evidence that the RTA practice was for a vacuum broom to sweep the entire area twice on the day of the seal. However, a sign stating "Beware windscreen damage, loose stones" was then erected and it was still in place on the day of the accident, 5 March 2004. An officer of the RTA agreed that bits of aggregate could nevertheless remain beyond the trafficable carriageway, ie to the side of the road. He was speaking about the area outside of the sealed breakdown lane. Of course, it is possible that stones could have been thrown back onto that sealed breakdown lane in the ensuing period. 43 In my view, this evidence is somewhat equivocal on the ultimate issue. Either alone or in conjunction with the other evidence it certainly does not establish that the verdict was unreasonable in the relevant sense. 44 I would therefore conclude that the challenge to the jury's verdict has not shown a basis for this Court overturning it and that the appeal against conviction must be dismissed. 45 The appellant seeks leave to appeal against the sentences that were imposed upon him. Coolahan DCJ imposed an effective sentence of three years three months with a non-parole period of fifteen months. The formal sentences imposed on 5 October 2006 were: On count 1 he is sentenced to a fixed term of imprisonment for four months to commence today and expire on 4 February 2007. On count 3 he is sentenced to a non parole period of eight months imprisonment to commence on 5 January 2007 and expire on 4 September 2007. I fix a full term of two years and six months to expire on 4 July 2009. On count 4 he is sentenced to a non parole period of eight months imprisonment to commence on 5 April 2007 and expire on 4 December 2007. I fix a full term of two years and six months to expire on 4 October 2009. On count 2 he is sentenced to a non parole period of six months imprisonment to commence on 5 July 2007 and expire on 4 January 2008. I fix a full term of two years and six months to expire on 4 January 2010. I direct that the offender be eligible for release to parole on 4 January 2008.