Fleming v R [2019] NSWDC 524

District Court New South Wales

Medium Neutral Citation: Fleming v R [2019] NSWDC 524 Hearing dates: 19/9/19, 26/9/19 Date of orders: 26 September 2019 Decision date: 26 September 2019 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Conviction appeal dismissed. Conviction confirmed. Sentence varied. Catchwords: Conviction appeal – negligent driving occasioning death Legislation Cited: Road Transport Act 2013 (NSW) Cases Cited: Derrick v Cheung [2001] HCA 48 Category: Principal judgment Parties: Marion Fleming (Appellant) DPP (Respondent) Representation: Mr Moir (Counsel) for Appellant Ms Ellery (Solicitor) for Respondent File Number(s): 18/281385 Publication restriction: None Decision under appeal Court or tribunal: Local Court Jurisdiction: Crime Date of Decision: 16/4/19 Before: Magistrate Shields File Number(s): 18/281385

Judgment 1. Mrs Marion Fleming appeals her conviction in relation to an offence of negligent driving occasioning death (s 117(1)(a) Road Transport Act 2013 (NSW)), of which she was found guilty in the Local Court. 2. Evidence on the appeal included statements of police officers who attended the scene of an accident which occurred in a car park at Nelson Bay on 22 May 2018. That undisputed evidence establishes that at about 1:10 PM that day, the Appellant was driving a Toyota Landcruiser Prado four-wheel-drive through a council car park, when it hit Mrs Barbara Pawlicki, a 91-year-old woman, who was a pedestrian in the car park. Mrs Pawlicki suffered a broken leg, and serious head injuries, and died the next day. 3. The Appellant was interviewed by police, and said that prior to the accident she had driven to Nelson Bay with the intention of attending an appointment at 1:15 PM with her beautician, whose premises were located on the street opposite the car park. She told police that as she drove along the street she saw a vacant parking space almost immediately outside the beautician's premises, and that, rather than perform a U-turn on the road, she turned into the council car park, with the intention of exiting and then securing the car space outside or near the beautician shop. She told police that, as she was driving through the car park, and just after she had turned right into one of the lanes in that car park, she heard a "clunk" or a loud bang. She said she did not see anybody, but slammed on the brakes, got out of the vehicle, and saw Mrs Pawlicki lying on the roadway to the left of the vehicle. 4. The Appellant told police that she was not in a hurry, was not travelling fast, and could not explain why she did not see Mrs Pawlicki prior to the impact. She said she was definitely paying attention to her driving, was familiar with the controls of the vehicle, was not tired or affected by alcohol, and was not distracted by anything. 5. The Appellant was breath tested, which confirmed that she was not affected by any substance which might have interfered with her ability to drive safely. At the time of the accident, it was daylight, the weather was fine, and the vehicle was in good working order. 6. An examination of the Appellant's vehicle by police, and photographs taken, which were admitted in evidence on the appeal, suggests that the impact with Mrs Pawlicki occurred at the very front of the vehicle, and on the driver's side. This conclusion follows from some slight displacement of one of the driving lights at the front driver's side of the vehicle, as well as the fact that the sunglasses of Mrs Pawlicki were found on the bull bar at the front of the vehicle, towards the driver's side. This was also the conclusion reached by the police crash investigation officer, and I note further that Counsel for the appellant conceded that this was a reasonable conclusion. 7. In her police interview, the Appellant said that, at the time the impact occurred, she was not looking to see whether the car space outside the beautician's shop was still vacant. She further said, when asked if there were any vacant spots in the council car park, that she was not thinking about that, because she intended to park in the space that she had earlier noticed, which was on the road. 8. Negligent driving is established where it is proved beyond reasonable doubt that a person has driven a motor vehicle in a manner which involves a departure from the standard of care for other road users that is to be expected of the ordinary prudent driver. In making that assessment, regard must be had to all the circumstances surrounding the driving, including the nature of the road, the weather conditions, the time of day, the speed, size and manoeuvrability of the vehicle, and any other relevant circumstances. 9. On the appellant's behalf, it was argued that negligence was not made out to the criminal standard. In particular, it was submitted that there was no evidence as to how Mrs Pawlicki came to be in the position where she was hit, nor any evidence as to whether she was standing or had fallen, no evidence as to the visibility of her clothing, and no evidence as to her height, or other physical attributes. 10. In these circumstances, it was argued that the prosecution case was deficient, and that it cannot be inferred beyond reasonable doubt that the Appellant failed to keep a proper lookout. 11. I have considered carefully all of these submissions. The question of whether driving is negligent, for the purposes of the criminal law, is a question of fact, which will depend upon the particular circumstances of the case. In this case, as there were no eyewitnesses, the prosecution relies upon the drawing of an inference that the driving was negligent. However in a criminal case I may only draw such an inference if it is the only rational inference in the circumstances. 12. In support of an inference of negligence, the prosecution relies in particular on the following matters. Firstly, that the accident occurred in the middle of the day, in a busy car park, where a high level of pedestrian activity must be expected. Secondly, the impact occurred at the very front, on the driver's side of the vehicle, and therefore directly within the critical field of view of the driver. Thirdly, the Appellant's admission that she did not see Mrs Pawlicki. 13. In my opinion, another factor which supports the prosecution inference of a failure to keep a proper look out is the Appellant's explanation to police that she did not intend to park inside the car park, but was merely using the car park as a means to turn around and attempt to secure the car space she had earlier seen outside the beautician's shop. Although CCTV footage taken from some distance away does not show the actual impact, it does confirm that the appellant, was in effect using the car park as a drive-through thoroughfare. In those circumstances, it is in my opinion more likely than usual that the Appellant's attention would have been less focused on events inside the car park, and more focused on securing the car space on the road outside. While the Appellant denied that she had been so distracted in her police interview, the reliability of that assertion must be considered against a background where the Appellant was in shock, and trying to re-construct an incident, which was, up until the moment of impact, utterly unremarkable. 14. Counsel for the Appellant drew my attention to a number of cases, including a decision of the High Court of Australia in Derrick v Cheung [2001] HCA 48. That was a civil case, in which the High Court found that there was no basis for a finding of negligence on the part of a driver who hit a 21 month old child who suddenly ran onto a busy road from between two parked cars. In that case, the High Court noted that the accident had not occurred near a school or bus stop or other place where special caution should be expected, and observed also that the circumstance that an unattended infant would dart in front of a relatively slow-moving vehicle on a busy road was unlikely, to the extent that the collision in that case was effectively unavoidable. 15. That factual situation is however quite different to this one where the accident occurred in a busy car park, at a busy time, when significant pedestrian traffic could be expected, and in circumstances where the impact occurred in front of the driver's direct field of view from the driving position. 16. The fact that this accident occurred in a car park at a busy time of day is a factor which provides strong support for the prosecution's case of negligence. A car park is an area shared by motorists in vehicles, and pedestrians, including children and elderly people, on foot. Although it includes a road area, it is unlike a road, because it is an area where pedestrians, including unpredictable children, who may be small and difficult to see, are not only likely to be present, but almost certainly will be. A car park is therefore an area where a driver is "on notice" of the presence of people on foot, and where the exercise of proper care will always require constant vigilance. The need for constant vigilance is even greater where the vehicle being driven is, as in this case, a large four wheel drive, with its increased capacity to cause significant injury, and its somewhat restricted view of objects or children, which may at times be below the natural line of sight of the driver. 17. I have considered the various arguments put on the Appellant's behalf. However in my opinion the only rational inference on all the evidence is that there was a failure to keep a proper look out. I am therefore satisfied beyond reasonable doubt that the offence is made out, and I find the Appellant guilty.