Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Nation v R [2016] NSWCCA 115 Hearing dates: 18 May 2016 Decision date: 15 June 2016 Before: Basten JA at [1]; Schmidt J at [65]; Wilson J at [66] Decision: (1) Grant the applicant leave to appeal against her convictions. (2) Dismiss the appeal. Catchwords: APPEAL – criminal conviction – application for leave – whether verdicts unreasonable CRIME – motor vehicle accident – dangerous driving causing death – dangerous driving causing grievous bodily harm Legislation Cited: Crimes Act 1900 (NSW), s 52A Criminal Appeal Act 1912 (NSW), s 6 Evidence Act 1995 (NSW), s 191 Cases Cited: Jiminez v The Queen (1992) 173 CLR 572 McBride v The Queen (1966) 115 CLR 44 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The King v Coventry (1938) 59 CLR 633 Category: Principal judgment Parties: Adel Louise Nation (Applicant) Regina (Respondent) Representation: Counsel: W Hunt/M Curry (Applicant) H Baker (Respondent) Solicitors: M Lorkin (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/139161 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 13 February 2015 Before: Wells DCJ SC File Number(s): 2012/139161 Judgment 1. BASTEN JA: At about 10am on 11 November 2011, the applicant, Adel Louise Nation, was driving north along the Pacific Highway near Chatsworth Island (west of Yamba and between Grafton and Ballina). The inside lane in which she was travelling came to an end and she was required to merge into the remaining northbound lane. In doing so, she lost control of her vehicle, crossed the single lane in front of a B-double truck and collided with a Tarago van travelling south, killing both the driver and the front seat passenger of that vehicle. Her own son was also seriously injured in the collision. 2. On 4 June 2014 the Director of Public Prosecutions presented an indictment containing two charges of driving in a manner dangerous to other persons and causing death (Crimes Act 1900 (NSW), s 52A(1)(c)) and one charge of driving in a manner dangerous and causing grievous bodily harm (s 52A(3)(c)). Following her pleas of not guilty, she was tried by Wells DCJ SC and a jury at Lismore. On 12 June the jury returned verdicts of guilty on all three charges. 3. For reasons which were obscure, she was not sentenced until 13 February 2015, when she received a non-parole period of 18 months, to expire on 12 August 2016 with an additional term of 18 months. For reasons which are also obscure, and quite unfortunate, no application for leave to appeal was filed until 8 February 2016, after she had served all but six months of her non-parole period. The appeal was limited to a challenge to the verdicts on the basis that they were unreasonable and could not be supported having regard to the whole of the evidence. To address that ground it is necessary for this Court to consider the evidence led at the trial. 4. For the reasons set out below, there should be a grant of leave to appeal from each conviction, but the appeal should be dismissed. Circumstances of collision 1. The precise mechanism by which the applicant lost control of her vehicle (a Land Rover Discovery) was controversial; the circumstances in which she got into difficulty were not. Thus, it was agreed that the applicant had left an address in Victoria with a fully laden Land Rover and her three children, at about 2pm on Thursday, 10 November 2011 to drive to Brisbane. Some 20 hours later, having covered 1,588 kilometres, the collision occurred. 2. The speed limit on the Pacific Highway near Chatsworth Island on the northbound lanes was 100kph. The applicant was originally travelling in the inside of two northbound lanes and passed three warning signs indicating that the left hand lane would end and she would need to merge into the centre lane. Photographs showed a "merge right" arrow on the road approximately 350 metres south of the point of impact. Beyond the arrow, the lane started to taper, with a broken white line between the tapering left hand lane and the centre lane. A photograph taken 160 metres south of the point of impact showed the final metres of the taper: any vehicle which had failed to merge right by that stage would have had its nearside wheels on the bitumen shoulder of the highway. 3. Evidence as to signage and distance along the road was given by Senior Constable Hardy of Ballina Highway Patrol. Constable Hardy noted that the first sign, "Left lane ends 500 metres" was exactly that distance from the "Form one lane" sign. [1] There was a further sign "Left lane ends merge right", with an arrow, which was 300 metres from the actual merge. [2] There were in fact three arrows painted on the surface of the lane. [3] The length of the dual lane segment of the highway was 2.5 kilometres. [4] Constable Hardy also stated that the tapering of the lane covered 250 metres. [5] The northbound lane was in the shape of a broad sweeping left hand bend. [6] 4. A scale diagram indicated that the final white "dash" at the point where the lane vanished, was 83 metres short of the point of collision. The first of a series of tyre marks crossing the remaining lane, as the applicant's vehicle moved towards the centre chevron markings and across into the southbound lanes, was identified some 30 metres before the point of collision. 5. Sergeant Hindle gave evidence of measurements taken in the vicinity of the accident. He said that the bitumen verge on the northbound side of the highway was approximately 2.1 metres wide, the single northbound lane was approximately 3.5 metres wide and the centre dividing markers approximately 1 metre wide. [7] 6. Sergeant Hindle described the applicant's vehicle as a gold-coloured Land Rover Discovery, and stated that the tyre marks were made as it "rotated in a clockwise direction while sliding upon the bitumen roadway". [8] 7. At an earlier point along the dual lane section, the truck in front of which the applicant passed was behind her in the left hand lane, but pulled out to pass her. The truck, identified by its signage as a "Fred's truck", was a B-double driven by Craig Anthony Fuller. [9] Constable Hardy gave evidence that a B-double is between 25 and 26 metres long, evidence confirmed by Mr Fuller. The truck did not complete the overtaking before the inside lane ended. Then in front of the applicant's Land Rover in the inside lane was a Linfox truck. When Mr Fuller realised that he would not be able to overtake it, he flashed his lights indicating that the Linfox should merge in front of him. It did so. The applicant's vehicle then sought to merge, after the end of the inside lane, in the gap between the Linfox and the B-double. It was in the course of that manoeuvre that the applicant lost control of her vehicle. 8. The Land Rover slid into the path of a southbound Tarago, which collided with the rear of the Land Rover, causing massive damage to the front of the Tarago and killing the occupants. The applicant's son, who also suffered significant injuries, was in the back seat of the Land Rover. The back of the Land Rover appears to have been full of bedding and other domestic possessions, although it is not clear how it was packed immediately prior to the collision. One issue was whether the applicant had a view through the rear window of the Land Rover using the internal rear vision mirror. Eye-witness evidence 1. The applicant did not give evidence at the trial, but a brief statement dated 23 March 2012 was admitted, the only matter of substance being the following passage: "I have no recollection of the actual collision. However, shortly before the collision I recall travelling at the prevailing speed limit as I had adjusted the cruise control to comply with the speed limit. Just before the accident I saw a truck in my rear vision mirror travelling extremely close to the rear of my vehicle. I could not see the lights of the truck because he was so close all I could really see was the huge radiator of the truck which took up the whole back window. The next thing I remember is being in the ambulance." 1. Two other persons spoke to the applicant after the collision. The first to speak to her was Ana Scott who had been a passenger in a car driven by her husband, which was driving north, but behind the Land Rover. She gave evidence that among other things, the applicant had said "I was tired". [10] She also said on a number of occasions, "What happened, was it my fault? I can feel my toes." [11] There was no challenge to the suggestion that the applicant had said, on at least one occasion, "I was tired". The defence suggested that she was in a state of shock at that time, an inference drawn by Ms Scott herself. 2. Sergeant Hindle was assisted in his investigations by Senior Constable Butler. Mr Butler made a statement but was unable to attend court through illness. Sergeant Hindle was led through parts of Mr Butler's statement as part of his (Sergeant Hindle's) evidence-in-chief. Constable Butler had spoken to the applicant whilst she was in hospital and, he, Butler believed, she was under the effects of medication. Mr Butler recorded the applicant as saying "I remember talking to Mark my husband on the phone and next this [next thing?], the truck being right there". [12] There was evidence that there was a hands free mobile phone fitted to the Land Rover. Ms Scott's evidence was that the applicant was talking on the phone when she reached the vehicle shortly after the collision, that the applicant handed her the phone and she subsequently handed it to her husband to speak to the man on the other end. [13] 3. The case for the defence turned almost entirely upon the proposition that the dangerous situation in which the applicant found herself was caused predominantly by the aggressive driving of the B-double by Mr Fuller. 4. The evidence in support of this thesis included (a) the suggestion that the distance between the B-double and the Linfox truck was unsafe (that is, Mr Fuller had driven far too close to the rear of the Linfox truck before allowing it to merge in front of him); (b) having failed to overtake the Land Rover, he should have let it merge in front of him; (c) having made no attempt to slow down to allow it to merge, the B-double collided with the right hand rear of the Land Rover; (d) Mr Fuller did not stop, although he cannot have been unaware of the ensuing collision, and (e) he lied in an attempt to explain flakes of paint found on the left hand front bumper bar of his truck. 5. In addition to the police officers and a crime scene officer with expertise in reconstruction of collisions, the prosecution relied on seven eye witnesses. The first witness, who gave lengthy evidence, was Mr Fuller. It is convenient to put his evidence to one side and deal with the other eye witnesses. Two were driving south. One, Clinton Risson, was driving a B-double truck in the centre of the two lanes travelling south and had overtaken the Tarago and was able to manoeuvre his truck so that the Land Rover did not hit him. He saw the collision between the Land Rover and the Tarago in his rear vision mirror. 6. The other witness travelling south was Brian Crossley-Price, who was in the left hand lane, behind the Tarago. The collision occurred in front of him and he was able to brake in order to avoid colliding with the Tarago from behind. 7. There were four eye witnesses in vehicles travelling north. Luke Austen was driving a Toyota Rav4. There was, initially, another vehicle between him and Mr Fuller's truck. Both intended to overtake the truck, but the truck pulled out into the centre lane, causing the vehicle in front of Mr Austen to move into the southbound lane. That vehicle went past, and Mr Austen flashed his lights at the truck to tell the truck that he was not committed to overtaking. [14] As he slowed down, leaving about 100 metres between him and the truck, he could see the Land Rover in the left hand lane. His evidence was that the cab of the B-double was level with the trailer wheels of the semi-trailer (the Linfox) and thus alongside the Land Rover. [15] He said that the B-double did not brake, but slowed enough to allow the semi-trailer to pull out in front of it. [16] He could see that the Land Rover had its right hand indicator on, but did not slow down. [17] 8. Mr Austen was not in the best position to see what was happening in front of the B-double, but he estimated the distance between the B-double and the semi-trailer as being "enough room for like a really tight car length". [18] He said that he was able to see the B-double make contact with the driver's side rear of the Land Rover. [19] In evidence given in the Local Court committal proceedings, Mr Austen had said that he did not see contact between the Land Rover and the B-double. In cross-examination at the trial he agreed that his evidence that he had seen such contact was an assumption or reconstruction. [20] 9. Jennifer Jackson was a passenger in the front seat of a Mercedes four-wheel drive, also travelling behind Mr Fuller's truck shortly prior to the accident. [21] There was another vehicle between her vehicle and the truck, she being in the left lane. She described a silver Mercedes sedan in front of her which had been overtaking Mr Fuller's truck when the truck swung out causing the Mercedes to move "closer to the centre line". [22] (It was not put to her that it crossed the centre line.) 10. Ms Jackson was able to say that Mr Fuller's truck gave a "very slight swerve, very slight evasive swerve to the left", just after the Land Rover and Tarago van collided, as did the car behind the truck. Otherwise, she was not able to give any clear picture as to what had happened at the time the Land Rover (which she described as "brown" rather than bronze or gold) headed across the road. 11. The third eye witness travelling north was Ms Scott. Her evidence was focused on what happened after the collision and did not deal with the circumstances immediately prior to the collision. 12. A fourth witness, Robert Studd, was unavailable to give evidence, but his statement to police of 16 April 2012 was read onto the record, as was his evidence at the committal hearing. 13. Mr Studd was driving a blue Toyota Aurion. Shortly prior to the accident, he was travelling behind the Mercedes RV. He saw Mr Fuller's truck pull out in an attempt to overtake a bronze Land Rover Discovery (the applicant's vehicle). At the end of the overtaking lane, he said that the Land Rover was "marginally in front of the truck" and he saw what he believed to be "a puff of dirt or dust come from the Land Rover" as it merged in front of the truck. He also saw what "appeared to be the rear of the Land Rover lift into the air". It then turned abruptly to the right in front of the truck and across the road. He described the gap between Mr Fuller's truck and the Linfox truck as "quite small and probably only a couple of car lengths long." [23] Mr Studd also said that from his position he could not see if the truck made any contact with the Land Rover. He did not observe the collision, but only the aftermath. In the course of his evidence in the Local Court, he had explained that he definitely saw the back of the Land Rover "bump up", but that was before "part of the vehicle had gone in front of the truck". [24] He also gave evidence that his initial account which referred to the Land Rover being "shunted" in front of the truck may have indicated that he saw a physical collision, but on thinking about it he was confident he did not. [25] 14. The eye witnesses travelling behind the applicant's vehicle and Mr Fuller's truck were, in effect, unable to describe with any degree of clarity what had happened, although all (except Ms Scott) had been conscious of the Land Rover maintaining its speed, without a clear opportunity to merge into the single remaining lane. What Mr Studd was describing in relation to the movement of the Land Rover was quite unclear. 15. It is convenient to refer next to the evidence of the two southbound drivers. The first was Mr Risson, the driver of the southbound B-double, who had been driving in the centre lane overtaking vehicles in the left hand lane. He described the events immediately prior to the point of impact in the following terms: [26] "At that point, I couldn't really see a car until – like when the impact occurred I noticed like the, the truck that had hit – the truck that the car come out in front of – like the truck had shuddered like being hit. And then I saw the car come out in front of me and the reflexes kicked in." 1. Mr Risson was on the telephone to his wife at the time. [27] He also agreed in cross-examination that in his statement he had said that it "looked like the Discovery had been spat out" from between the two trucks. He said "I thought it got spat out, it looked like it had been hit and shunted out." [28] 2. The second southbound witness was Brian Crossley-Price. He described seeing a vehicle from the northbound lane "spinning sideways on to my side of the highway". It was only at that point that he first saw it. He was not able to describe how it had come to be there. He did, however, clarify that by spinning, he meant that it was sideways on to him and that he could see the passenger side door on the vehicle. [29] 3. It remains to consider the evidence of Mr Fuller, driving the B-double in the northbound lanes, in front of which the applicant's vehicle crossed the road. 4. Mr Fuller described overtaking a "goldie colour" 4-wheel drive and said that he was gaining on a Linfox single trailer, but did not have room to pass before the overtaking lane finished. [30] He said that he slowed from 100 down to 95kph and flashed his lights for the Linfox to come out in front him, which it did. He said that the Linfox vehicle was about 30 feet from him when it came out, but he did not get any closer than 30 feet. [31] He denied being aware of the presence of another vehicle to his left at the time the Linfox truck moved into his lane but said that "[a]fter the left had ended, out of the left front windscreen I seen a four-wheel drive duck back in in front of me on the shoulder of the road." [32] He said that in his seat, he was about four feet behind the windscreen and that the part of the vehicle he first saw was its roof. He said that he did not see it in his left hand rear vision mirror and that it was travelling faster than he was when he first saw it. [33] He said that it "turned across in front of me and it's gone straight across the road between two southbound trucks." [34] He said that that was the last he saw of the vehicle. He agreed he did not stop and that he did not feel anything happen to the prime mover of his truck. [35] 5. Mr Fuller stated that he used his brakes "after" he saw the vehicle "alongside and then in front of [him]", by lifting his foot from the accelerator, which brought the engine brake on automatically, and touching the foot on the other brake. He said that the tail lights would not come on when the engine brake was engaged but would come on if the foot brake were engaged. [36] He said that he swerved a couple of feet to the left after the vehicle ducked in front of him. [37] 6. Mr Fuller was cross-examined as to what he had said at the Ballina Police Station, where he was spoken to following the accident. One answer was his description of the events in the following terms: [38] "At the end of the overtaking lane I signalled for the Linfox single trailer truck to move back into the right lane, left lane ended. At that time I noticed the goldie coloured four-wheel drive accelerating up the left hand side. … It swerved back in front of me, it slammed on the brakes so it wouldn't hit the back of the Linfox truck. When it's hopped on the brakes it's turned completely sideways." 1. A further passage was to the effect that it had crossed the southbound lanes and "collided with a car in the left lane." Mr Fuller denied saying to the police that it had collided. [39] 2. Mr Fuller also gave evidence that he had looked in the left hand rear vision mirror before the overtaking lane ended and had seen the gold-coloured 4-wheel drive behind the back of his back trailer. [40] 3. It was put to Mr Fuller expressly that the 4-wheel drive was in front of him and behind the Linfox truck; that is, he had not got to the stage of overtaking it when the left hand lane tapered to its termination. He disagreed with that. [41] There was inconsistency in his evidence as to whether he looked back at the time the lanes were merging to see if there was anything on his inside. His final evidence was that he did not. [42] 4. The other matter which was the subject of disputed evidence was the question whether Mr Fuller's truck hit the rear of the applicant's vehicle. The evidence of the eye witnesses was inconsistent with any suggestion that he had braked or slowed down at about that time (except marginally to allow the Linfox in), but it was consistent with the proposition that there was very little room between the front of his vehicle and the rear of the Linfox truck. As will be noted shortly, there was expert evidence as to what part of the truck might have made contact with the applicant's vehicle to cause it to "spin" in a clockwise direction across the southbound lanes. 5. Although Mr Fuller thought that he had been asked when stopped at Ballina as to the paint on his bull bar, in fact the bull bar was not examined by police until a month later, namely 12 December 2011. A paint scraping was then recovered from the front passenger side corner of the bull bar and was the subject of a scientific analysis. The scientific officer was not called, but an agreed statement was tendered pursuant to s 191 of the Evidence Act 1995 (NSW). When compared with paint flakes taken from the Land Rover, the expert opinion was that the flakes could not have originated from the same location on the Land Rover, with the result that it was only if there had been an area of repair (as to which there was no evidence) from which other paint had been transferred to the bull bar that the paint could have come from the applicant's vehicle. In short, the evidence was equivocal. 6. Mr Fuller, however, told police that he had collided with a yellow roadwork sign earlier that day at Tyndale, to the ire of some road workers, which could have been the source of the yellow paint. An investigation carried out by police suggested that no such incident had occurred. Expert evidence 1. The evidence of Mr Lennon, a crime scene officer with expertise in collision reconstructions called by the prosecution, and Mr Jamieson, a mechanical engineer with expertise in crash investigation and traffic safety, was also equivocal. 2. The claim by the applicant in her statement that she had seen the grill at the front of the truck in her rear vision mirror suggested that the truck was directly behind her at the time she lost her memory of what occurred. The inference that the Land Rover successfully merged in front of the B-double was not consistent with the evidence of the eye witnesses, nor with the tyre marks on the roadway. 3. Mr Lennon was not able to rule out the possibility of some contact, but thought it more likely than not that there was no contact between the applicant's Land Rover and Mr Fuller's truck. There was no debris seen on the road and the truck would need to have been going faster than the Land Rover, which he estimated from the tyre marks to have been travelling at 100kph. [43] Furthermore, he was confident that the movement revealed by the tyre marks, from the northbound lanes across to the southbound lanes was not consistent with the applicant's vehicle having been hit from the rear. The vehicle had turned in a clockwise direction; yet it was clear that contact between the left hand side of the truck's bull bar could not have been made with the rear of the applicant's vehicle, or the spin would have been anti-clockwise. The alternative hypothesis was that any contact made with the front left bull bar of the truck must have been with the right hand side of the applicant's vehicle which must already have been travelling at an angle across the front of the truck. [44] If there was no contact, Mr Lennon concluded that the loss of control was likely to have resulted from a "harsh right hand steer". [45] 4. Mr Jamieson's primary evidence was that the truck had been accelerating at the point of impact. That was not only inconsistent with Mr Fuller's evidence, but was not supported by any of the eye witnesses. Mr Jamieson, however, was unable to rule out the possibility that the Land Rover had in fact moved sharply in front of the truck without contact, in order to leave the marks made by the tyres on the roadway. [46] 5. Both Mr Lennon and Mr Jamieson agreed that as the Land Rover skidded across the road, the brakes were not locked and, indeed, were almost certainly not on. [47] Whether the jury ought to have entertained a reasonable doubt as to guilt 1. The offences with which the applicant was charged did not in this case involve any difficulty in their application. The jury was required to consider "all matters connected with the management and control of" the car the applicant was driving. [48] The management of the car must be such as "is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place." [49] There was no suggestion that the driving itself was other than a voluntary act of the applicant. No further mental element, such as an intention to endanger members of the public, was required. 2. In determining the sole ground of appeal, that is that the verdict was unreasonable or could not be supported having regard to the evidence, [50] the Court must make its own independent assessment of the evidence. [51] In some respects (though not all) this Court is in as good a position as the jury to evaluate the evidence. That is because (a) key aspects were agreed upon; (b) there was no challenge to the credibility of any witness except Mr Fuller; (c) Mr Studd's evidence was read onto the record; (d) there was a large measure of agreement between the experts and no issue as to their credibility, and (e) the applicant did not give evidence. 3. That is not to say that the jury would not have been better placed to assess the reliability of the evidence of particular eye witnesses, nor that the evidence of Mr Fuller was not significant - it was clearly treated as significant by counsel for the applicant who cross-examined him at some length. Further, the jury had the usual benefit of hearing and seeing the whole of the trial unfold before them. 4. There was a strong prosecution case which allowed the jury to reach the guilty verdicts. (Given there was one course of conduct, the same verdicts were inevitable on each count.) The question is, therefore, whether at the end of its assessment, this Court would entertain a reasonable doubt as to the guilt of the applicant. 5. The material supporting the prosecution case provided ample grounds for the jury to conclude that the applicant was driving in a manner dangerous to other persons at the time she lost control of her vehicle. It may be summarised as follows. First, having driven for 20 hours through the night at an average speed of almost 80kph, the jury was entitled to infer that she had had very little rest and would have been, as she stated to Ms Scott, "tired". 6. Secondly, she appears to have been on the telephone (albeit hands free) to her husband at the time of the accident. Thirdly, she had apparently made no attempt to slow down even when it was apparent that the lane she was in was about to end and that there was a large truck alongside her (or at best just behind her) in the outside lane. Fourthly, the manoeuvre she appeared to have undertaken to merge into the outside lane from the left hand shoulder of the road, was so fraught with risk as to be dangerous in itself. 7. In essence, any doubt must derive from the driving of Mr Fuller. If his driving were such as to deprive the applicant of an expectation that she would be able to merge safely into the centre lane in front of his truck, an expectation which was thwarted by the aggressive driving of Mr Fuller, it may have been open to conclude that the applicant's driving involved a misjudgement and even a lack of reasonable care, but did not rise to the level of driving in a manner dangerous. 8. An adverse inference may have been drawn with respect to Mr Fuller's driving by reason of his earlier attempt to pull out into the centre lane at a time when two vehicles were seeking to pass him. The first vehicle, it may be accepted, was forced into a southbound lane to avoid a collision, itself a dangerous course to take. However, Mr Fuller then returned to the left hand lane, apparently realising his mistake. That conduct appeared to demonstrate lack of proper attention to his driving. 9. The second, and critical element, involved his conduct in letting the Linfox semi-trailer merge in front of him. There was, of course, nothing inappropriate in that course as such; rather, the criticism was that he failed to slow down sufficiently so as to allow a proper distance between the rear of the semi-trailer and the front of his truck, in which case, there might have been room for the applicant also to merge into the centre lane. The distance between the trucks, as indicated by Mr Fuller, was about 30 feet (or 10 metres). It was put to him that that was not a safe distance, but there was no challenge to his factual assessment of the distance. 10. Assuming, there being no evidence one way or the other, that the applicant was driving a safe distance behind the semi-trailer, it must follow that as she approached the end of the inside lane, Mr Fuller's truck must have been alongside her vehicle, or at best only a short distance to her rear (in the adjoining lane). 11. That evidence does little to assist the applicant. Her statement suggested that she had not seen the truck until it was directly behind her vehicle. The mechanics of the accident suggest that that was highly implausible, because the tyre marks on the road indicated that she must have been travelling across the lane by the time she was in front of the truck. Further, the experts agreed that she could not have been hit by the truck from directly behind her vehicle, or her vehicle would not have travelled across the southbound carriageway, as the tyre marks on the road demonstrated that it did. 12. The fact that the applicant travelled a distance along the shoulder of the road beyond the end of the inside lane was explicable on only one of two bases. One was that she had no idea that the lane had ended, which would not assist her; the other was that she was aware of the truck in the centre lane and knew that there was no room to merge in front of it. The latter alternative, which is the more plausible, is consistent with her then attempting a dangerous manoeuvre. 13. The final question raised by this aspect of the evidence is whether the truck in fact hit the applicant's vehicle. The first question is whether, even had that occurred, it would have affected the jury's assessment of the applicant's conduct. On one view, if a collision occurred, that merely constituted a materialisation of the very serious risk which she took in seeking to drive in front of the truck when there was in fact no room for such a manoeuvre. The prosecutor left the case to the jury on that basis, saying that it was not necessary to decide whether or not there was contact between the truck and the Land Rover. [52] 14. The eye witness accounts were not consistent in this regard. Of the northbound drivers, none was in a position to see the collision (being behind both vehicles) and the one witness who thought he had seen contact agreed in his oral evidence that he could not have seen that occur and it must have been a reconstruction. The strongest evidence was that of Mr Risson (a southbound driver) who said that he saw the cab of the truck shudder "like being hit." 15. There was a possibility, unresolved on the evidence, that paint on the left hand front bumper bar of the truck might have come from the applicant's vehicle. However, the experts were agreed that if there had been a point of contact with any part of the rear of the applicant's vehicle, the Land Rover would have been turned in an anti-clockwise direction (it in fact turned clockwise) and would probably have been pushed forward by the vastly greater mass of the truck. (The tyre marks were inconsistent with such a movement.) 16. The only plausible explanation was that the left hand front bumper bar of the truck had made contact with the right hand rear mudguard of the Land Rover. Mr Lennon at first could not rule out the possibility of such contact, although he later discarded it. Mr Jamieson accepted it as a possibility, but put it no higher. What led Mr Lennon at first to discount the possibility was that no other part of the vehicle appeared to have made contact with the front of the truck; the truck had to be travelling faster (in a forward direction) than the Land Rover at that point, and there were no tyre marks on the road consistent with the vehicle being spun as a result of an impact. 17. As the prosecutor noted, it was not necessary to resolve the question of contact between the truck and the Land Rover. The jury was entitled to find that the applicant was driving in a manner dangerous at the time (and prior to the time) when she sought to merge into the remaining lane. What happened after the decision to merge was taken did not substantially affect that conclusion. There was no basis in the evidence to conclude that the jury ought to have had a reasonable doubt as to the guilt of the applicant. Conclusion 1. Given the seriousness of the charge, the fact that the applicant appeared to have no recollection of the accident and that the objective evidence was not conclusive as to what had happened, there should be a grant of leave to appeal. Nevertheless, the appeal must be dismissed. Orders 1. The Court should make the following orders: 1. Grant the applicant leave to appeal against her convictions. 2. Dismiss the appeal. 1. SCHMIDT J: Having considered the evidence, I agree with Basten JA that, while leave to appeal should be granted, the appeal must be dismissed, for the reasons which his Honour has given. 2. WILSON J: I also agree with the orders proposed by Basten JA, and with his Honour's reasons. ********** Endnotes 1. Tcpt, p 5(18). 2. Tcpt, p 4(16). 3. Tcpt, p 8(12). 4. Tcpt, p 5(45). 5. Tcpt, p 8(19). 6. Tcpt, p 11(14). 7. Tcpt, p 248. 8. Tcpt, p 246(47). 9. Tcpt, pp 12(12) and 85(30). 10. Tcpt, p 179(15). 11. Tcpt, p 180(45). 12. Tcpt, p 260(45). 13. Tcpt, pp 176-177. 14. Tcpt, p 143(12). 15. Tcpt, p 144. 16. Tcpt, p 145(28). 17. Tcpt, p 145(50). 18. Tcpt, p 146(19). 19. Tcpt, p 148(10)-(15). 20. Tcpt, p 163. 21. Tcpt, p 133-134. 22. Tcpt, p 134(33). 23. Tcpt, p 228. 24. Tcpt, p 233(30)-(40). 25. Tcpt, pp 233-234. 26. Tcpt, p 120(30). 27. Tcpt, p 121(3). 28. Tcpt, p 126. 29. Tcpt, 173(10)-(15). 30. Tcpt, pp 37-38. 31. Tcpt, p 39(35)-(45). 32. Tcpt, p 40(4). 33. Tcpt, pp 40-41. 34. Tcpt, p 42(10). 35. Tcpt, p 42(18)-(22). 36. Tcpt, p 49. 37. Tcpt, p 50(25)-(34). 38. Tcpt, p 79(25). 39. Tcpt, pp 78-80. 40. Tcpt, p 85. 41. Tcpt, pp 101-102. 42. Tcpt, p 103. 43. Tcpt, Pp 292-293. 44. Tcpt, p 295(45)-(50). 45. Tcpt, p 302(10). 46. Tcpt, p 338(10). 47. Tcpt, p 335(20-(25). 48. The King v Coventry (1938) 59 CLR 633 at 639 (Latham CJ, Rich, Dixon and McTiernan JJ). 49. McBride v The Queen (1966) 115 CLR 44 at 49-50 (Barwick CJ), adopted in Jiminez v The Queen (1992) 173 CLR 572 at 579 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ). 50. Criminal Appeal Act 1912 (NSW), s 6(1). 51. SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14] and [20]. 52. Tcpt, 11/06/2014, p 7(5)-(15). 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. Decision last updated: 15 June 2016