Majury (nee Calvert) v R [2013] NSWDC 325

District Court New South Wales

Medium Neutral Citation: Majury (nee Calvert) v R [2013] NSWDC 325 Decision date: 16 December 2013 Jurisdiction: Civil Before: Cogswell SC DCJ Decision: Appeal upheld. Appellant found not guilty and acquitted of the offence. Catchwords: CRIMINAL LAW - appeal from Local Court conviction - negligent driving occasioning serious bodily harm - T-bone collision between 2 motorbikes on Monaro Highway - reasonable doubt - unreliable assumption regarding motorbike's speed being constant. Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) s 20. Road Transport (Safety and Traffic Management) Act 1999 (NSW) s 42. Category: Principal judgment Parties: Stella Majury (nee Calvert) (Appellant) Regina (Respondent) Representation: Counsel: A Black SC (Appellant)

Solicitor: K Stanley, Office of Director of Public Prosecution (Respondent) File Number(s): DC 2012/00177135

Judgment 1. This is a case about a motorbike accident. Two bikes collided. Both of the riders were seriously injured. The police charged one of the riders with an offence called negligent driving occasioning serious bodily harm. That is an offence against s 42(1) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW). 2. The case went to court and was heard by his Honour Magistrate Bone over 7 and 8 March 2013 at Cooma. On 27 March 2013 his Honour delivered his judgment and was satisfied beyond reasonable doubt of the guilt of the rider who had been charged. His Honour convicted her of the offence. 3. She has appealed against that conviction and the case has come before me sitting here on circuit in Queanbeyan. When a person appeals from a conviction in the Local Court, the District Court judge reads the magistrate's judgment and the evidence which the magistrate took into account in reaching a conclusion. The judge hears arguments from the prosecution and the defence but usually no additional evidence. There has been no additional evidence in this case. 4. The person convicted and who is the appellant is Stella Majury. The accident happened on 14 January 2012. It happened on the Monaro Highway just beyond the turnoff to the Snowy River Way. Stella Majury was riding with a group of friends. She was riding along the Monaro Highway towards that Snowy River Way intersection. She realised a little late that her companions were turning left at that intersection and she stayed on the Monaro Highway and slowed down and pulled over to her left, intending to make a u-turn and ride back towards the intersection so that she could join her companions. 5. She looked in her rear view mirror and over her shoulder and made a right turn across the centre line. What happened then is what this case is about. James Thiedman was on his motorbike riding in the same direction as Stella Majury. He was not with her group. He was following other members of her group but his intention was not to turn left but to go straight ahead. He pulled out around the other members of Stella Majury's group but then, despite harsh braking, collided with Stella Majury and her bike. As I said, both were very seriously injured. It was described as a t-bone collision. 6. His Honour was satisfied beyond reasonable doubt that Ms Majury was negligent in conducting her turn. His Honour said in a clear and helpful written judgment that the "negligence rests in the fact that she did not wait until all of the cyclists who she thought were going to turn left had in fact turned left so that she had a clear view of the road to the south." (That was at [28] of his Honour's reasons.) His Honour said that Ms Majury "did not wait until she had a clear view of any approaching traffic and it is imprudent and careless to commence a turn without a clear view". 7. Ms Majury is represented in this appeal by Mr Anthony Black SC who also appeared for her before the learned magistrate. The respondent to the appeal, the Director of Public Prosecutions, is represented by Ms K Stanley. 8. Mr Black SC's point is that his Honour was in error in that there were two reasonable possibilities consistent with his client's innocence which had not been excluded by the evidence. His Honour had overlooked them and was in error in being satisfied beyond reasonable doubt of his client's guilt. One of those reasonable possibilities concerns what Ms Majury could see when she looked behind her before making the turn. The evidence, I accept, is that there was a distance of some 155 metres before the view was obscured by a combination of a bend and crest in the road. His Honour had concluded that Mr Thiedman's bike was within that distance, no more than 120 metres back from Ms Majury. It is that conclusion which Mr Black SC challenges in one of his arguments. 9. That argument is that the prosecution "did not exclude the possibility (probability) that the Triumph only came into view after the u-turn had commenced". Mr Thiedman was riding the Triumph. Mr Black SC's point is that his Honour's conclusion about Mr Thiedman being no more than 120 metres behind his client at the vital time was based upon calculations made by an expert called on behalf of his client, a Mr Hall. Mr Black SC argues that his Honour overlooked an assumption which Mr Hall had made, namely that Mr Thiedman's Triumph was travelling at a constant speed which was about the same as that being maintained by the group that his client was part of. That assumption is not warranted on the evidence, says Mr Black. 10. The evidence is that Ms Majury's group left Bombala and Mr Thiedman was behind that group. Mr Black points to evidence from two members of Ms Majury's group, namely Mr Holt and Ms Walker, who say that as they were riding between Bombala and the collision site and regularly checking their rear view mirrors they did not see Mr Thiedman's bike. In addition, Mr Walker gave evidence that at around the intersection Mr Thiedman was rapidly decelerating. He said that he "heard this bike come really fast off the accelerator, which would slow them down". It follows, Mr Black SC argues, that there is a real possibility, if not a probability, that Mr Thiedman on his Triumph was travelling at a greater speed than that being maintained by Ms Majury's group. If that is so then the estimate of 120 metres given by Mr Hall needs to be adjusted. If Mr Thiedman was travelling a greater speed then there is a real possibility, if not a probability Mr Black says, that Mr Thiedman was back beyond the crest and the intersection when his client commenced her turn. In other words, as he says, there was "the possibility (probability) that the Triumph only came into view after he u-turn had commenced". 11. Ms Stanley submits that this argument developed by Mr Black SC is no more than speculation. There is a certain speculative aspect about it. There are many assumptions which experts have to make, and reconstruction of accidents and estimates of speeds and distances are just that, they are estimates and reconstructions. However, in this case the learned magistrate accepted the evidence of the expert, Mr Hall, and his estimates about the distances involved. What his Honour seems to have overlooked, it seems to me with respect, and as Mr Black SC argues, is that the assumption was based upon Mr Thiedman travelling at a constant speed. I think the evidence from the sources that Mr Black has directed me to shows that that is an unreliable assumption. It leaves open to my mind the real possibility that Mr Thiedman was beyond the line of sight of Ms Majury when she started her turn. 12. I myself am not satisfied beyond reasonable doubt that she drove negligently in making that turn. I would allow her appeal, find her not guilty and acquit her of the offence. 13. The formal order which I make is this, under s 20 of the Crimes (Appeal and Review) Act 2001 (NSW) I determine this appeal against conviction by setting aside the conviction. HIS HONOUR: Anything else I need to do? BLACK: No, may it please the Court. HIS HONOUR: No? All right. STANLEY: I think the formal order is usually appeal upheld but-- HIS HONOUR: You are right, that is what is usually said but I usually include that in my remarks, but when I say that I will allow the appeal. But the formal order is what the statute provides for, that is how I do it. It does not accord with the computer but it does accord with the statute.