Osman v R [2020] NSWDC 217

District Court New South Wales

Medium Neutral Citation: Osman v R [2020] NSWDC 217 Hearing dates: 30 March 2020 Date of orders: 30 March 2020 Decision date: 30 March 2020 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Conviction appeal dismissed. Conviction confirmed. Catchwords: Conviction appeal – negligent driving occasioning death Legislation Cited: Road Transport Act 2013 Cases Cited: DPP v Yeo [2008] NSWSC 953 Simpson v Peat [1952] 2 QB 24 Category: Principal judgment Parties: Osman Osman – Appellant DPP - Respondent Representation: Counsel: Mr B Barrack for the Appellant Mr M Clark for the Respondent File Number(s): 2018/291270 Publication restriction: None Decision under appeal Court or tribunal: Bankstown Local Court Date of Decision: 3 September 2019 Before: Magistrate Walsh File Number(s): 2018/291270

Judgment 1. This is an appeal against a conviction for an offence under s 117(1)(a) of the Road Transport Act 2013 of driving a vehicle negligently occasioning death. The appellant pleaded not guilty to that charge in the Local Court and was found guilty after a hearing by the learned Magistrate. 2. On this appeal I am required to consider whether I am satisfied beyond reasonable doubt of the elements of the offence. In determining the appeal, I am of course required to have regard to the natural limitations of this type of appeal, which is essentially being determined on the papers and is not a hearing de novo. 3. In addition, in this determination of the appeal, I am required to have regard to the advantage that the Magistrate had in assessing witnesses. However in this case, matters of credibility and reliability of witnesses do not feature as strongly as they do in some cases given that a large part of the prosecution case is not in dispute. 4. The tests for whether driving amounts to negligent driving has been described in a number of cases but one of them is the decision of Mr Justice Johnson in DPP v Yeo [2008] NSWSC 953 where at para 27 his Honour said: "Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary, prudent driver in the circumstances". 1. His Honour went on to quote from the decision in Simpson v Peat [1952] 2 QB 24 where it was said that the question is, essentially, whether the driver was exercising that degree of care which the ordinary, prudent driver would exercise in all the circumstances. 2. Of course, in determining the question of whether negligent driving has been proved, I am also required by s 117(3) of the Road Transport Act to have regard to the nature, condition and use of the road on which the offence is alleged to have occurred, the amount of traffic at the time, all which might reasonably be expected and any obstructions or hazards on the road. The collision in this case which led to the death of Mr Negabon occurred on Canterbury Road, Bankstown just beyond the intersection with Claribel Street, Bankstown at about 5.20am on 10 April 2018. 3. At that time, the appellant was driving a Volvo brand concrete pumping truck with a tare weight of approximately 33 tonnes. The roadway consisted of three lanes heading east and another three lanes heading west. The appellant was driving in an easterly direction. The road was dry and it was dark although there was street lighting illuminated at the time. 4. Canterbury Road at this point involves a slight downhill slope. The point at which the impact occurred was between two sets of traffic lights, one being at the Claribel Street intersection and the second, further down the road, at the intersection with Chapel Road. The accident occurred when the appellant's Volvo truck collided with the rear of a Toyota Utility which Mr Negabon was driving. 5. At the time of the impact, as is indicated by CCTV material that was admitted in the Local Court and in this appeal, the Toyota utility was stationary and was located immediately behind a Scania Prime Mover truck with a trailer attached. The impact had the effect that the Toyota Utility was crushed between the front of the Volvo truck driven by the appellant and the rear trailer section of the Scania truck in front. The impact caused catastrophic damage to the Toyota Utility and there is evidence that Mr Negabon died instantly. 6. Immediately after the crash, the appellant jumped from his vehicle, as is indicated from the CCTV material, to check on the condition of the driver in front but it was clear to him that there was nothing that could be done to assist him. 7. The appellant was subjected to mandatory blood and urine tests which confirmed that he was not affected by any alcohol or drug. 8. The appellant's vehicle was checked by a mechanical expert and was found to be free of any relevant defects. 9. The speed limit on the road at the point of impact was 60 kilometres per hour. There is no suggestion by the prosecution that the appellant was at the relevant time, shortly before the accident, exceeding that limit. Rather, the prosecution case is that the appellant did not exercise the level of care and attention that a reasonably prudent driver would in all the circumstances, in particular, by not allowing sufficient distance between his vehicle and those in front of him and by not keeping a proper lookout. 10. The report of Senior Constable Simon Smith of the Metropolitan Crash Investigation Unit indicated that tyre skid marks had been found on the roadway surface for a distance of about 26 metres before the impact. Senior Constable Smith also noted that the site of the accident was preceded by a slight crest further to the west but that from this crest to the point of impact, there was about 150 metres of unobstructed visibility. 11. After being arrested, the appellant declined to be interviewed but later provided police with a short version of events in which he said that after the Claribel Street crossroad, he noticed two trucks that had stopped in the middle of the road. He applied the handbrakes and the brakes, and tried to swerve but there were cars on either side of him so he could not safely swerve without hitting them and that his truck then hit the utility. In addition, the appellant told Leading Senior Constable Brennan that he tried to swerve to the right but the truck was going to roll. 12. The appellant gave evidence in the Local Court and said that on the morning of the accident he was well-rested, had driven the road previously on a number of occasions and described the traffic as pretty light and flowing. In his reasons for decision, the Magistrate indicated that he did not agree with that description, that he had seen the CCTV footage and described the traffic rather as being of medium density. Having myself seen the CCTV footage, I would agree with the Magistrate's view in this regard. 13. In his evidence before the Local Court, the appellant said that he recalled the first traffic light, that being the Claribel Street intersection light, as having been green and that according to his memory, the next traffic light also was green. 14. There is evidence that in the seconds before the accident, the appellant had been driving behind a large removalist type truck and that this truck suddenly swerved from lane two into lane three, apparently so as to avoid an impact with the Toyota Utility and the trucks stopped in front of it. This is given some support by the CCTV material and also by the version given by the appellant in his evidence in the Local Court and I do not understand the prosecution to cavil with that suggestion. 15. Although the appellant made no mention of this swerving truck in the statement that he provided to police on about 4 June 2018, I have assumed in the appellant's favour that that large removal type truck was, indeed, travelling directly in front of him shortly before the impact and that this vehicle obscured his vision of what was immediately in front of it. 16. In his evidence, the appellant in the Local Court said he remembered this truck being 30 to 40 metres in front of him and that it swerved into the right lane using no brakes or indicators and that he was then in shock and immediately slammed on his brakes when he saw the utility and trucks banked up in front of him. He said that after the accident, he did remember something swerving but it was not until he saw the CCTV footage that he recalled in detail about the removalist truck. As I have said, I am approaching this appeal on the basis that there was such a removalist truck travelling in front of the appellant's vehicle immediately before the impact, or almost immediately, and that that truck suddenly and without any brake lights being illuminated or any indicator illuminated changed from lane two to lane three. 17. In his evidence, the appellant said in the Local Court that he believed that he had been travelling at a pretty safe distance knowing the traffic conditions usually applying on that portion of road and with the traffic, which he described as pretty light. He also said that his recollection was that there was a green light at the intersection in front of him. 18. When he was cross-examined, the appellant said in his evidence that he agreed that he was aware that the traffic lights which he was approaching could, at any moment, change to red. Significantly, in my view, he also agreed that because of the size of the truck that he was following, he was not able to see what vehicles or other obstacles might have been in front of that truck. He said, however, that he believed that there was a green light ahead, that the truck in front of him was doing the speed limit and that it showed no indication of anything being in front of it by which I assume he meant, no indication of anything unusual or hazardous in front of it. At least that is the beneficial interpretation that I will apply to his evidence in this regard. 19. Upon being further pressed in cross-examination, however, the appellant agreed that he did not know for certain what was in front of that truck. He disagreed that he was not maintaining a safe distance, even though he accepted that due to the size and mass of his vehicle, it required a greater amount of time to stop than a smaller vehicle, especially when going downhill and as I have noted, the portion of road was, to some slight extent, a downhill slope. 20. In his cross-examination, the appellant agreed, in effect, that he was not prepared to deal with whatever laid in front of the removalist truck once it swerved out of his lane. A specific question asked of him was: "Q. That's the very point I seek to make, you were not prepared for that truck to swerve out of that lane, were you? A. No". 1. There have been a number of arguments put to me on the appeal as being matters that I should take into account as to whether I am satisfied beyond reasonable doubt that the offence is made out. Mr Barrack has pointed out that the unchallenged evidence was that the appellant was well-rested, was not exceeding the speed limit, that the traffic was pretty light, as it was put to me. As I have observed already, I do not entirely accept that argument. It seems to me that the traffic was at least moderate, particularly in lane two, where indeed it could even be described as relatively heavy, although I do accept that lanes one and three appeared to be flowing reasonably well. 2. It was also argued that contrary to the finding by the Magistrate, there was no clear evidence that the traffic lights ahead were red. Mr Barrack pointed out that the drivers of the two trucks in front of the Toyota had not said that there was a red light but had merely said that they had come to a stop in lane two. 3. I have observed the CCTV material and I accept that it does not show whether or not the traffic light was red. What it does show, however, is that with respect to the vehicles in lane two at least, those vehicles had come to a complete stop for a short period and were just commencing to move off when the impact occurred. 4. There were also submissions made to me about the possibility that the appellant's recollection about the swerving truck and his failure to refer to that in any detail, or perhaps at all, in his police statement might be explained by the traumatic events which he had experienced as a result of this accident. As I have already said, however, I do not consider that it is necessary for me to make any determination about that matter because I am prepared to assume in the appellant's favour that there was indeed a very large truck in front of him which he was following and which shortly before the accident unexpectedly changed lanes suddenly revealing in front of it the stopped traffic. 5. It was put to me also that the driving of that other truck, which has been referred to as a removalist type truck, was so extraordinary that it could not be anticipated by the appellant and that that fact, if I find it to be a fact, is a matter which creates a reasonable doubt as to the offence of negligent driving. I have taken that argument into account. 6. In the Local Court, the defence called evidence from an expert forensic engineer, Mr Jamison, who calculated that prior to commencing braking, the appellant's vehicle was travelling between about 58 and 62 kilometres per hour. He said that at that speed, the appellant's truck would have needed between about 54 to 56 metres in order to come to a complete stop. He estimated that the truck was likely to have been travelling at a speed of between 15 and 25 kilometres per hour at the point of impact. It was put to me by Mr Barrack in submissions, and I accept that the effect of the evidence of Mr Jamison was that, within the space of perhaps another five metres or so, it is likely that the appellant's vehicle would have come to a complete stop. 7. Mr Jamison also gave evidence about perception and reaction times and their contribution to motor vehicle accidents. He offered the view that the sudden swerving of the removalist type truck may have taken the attention of the appellant, in effect, causing him to be distracted and to have therefore increased the perception time for his noticing the risk that was unfolding in front of him and to have also increased his reaction time in regard to that risk. 8. I have given full weight to this argument and this evidence, however, in my opinion, while this evidence might provide some context and explanation of the critical events which culminated in the fatal impact, it does not in any way serve to render the appellant's driving in this case as having met the standard of care to be expected of the ordinarily prudent driver in all of the circumstances. 9. It is a fundamental of driving any vehicle that the speed and the manner of that driving must have regard to all of the surrounding circumstances. This means that, in some cases, it may well be negligent for a driver to be adhering to the speed limit. It all depends on the traffic, the potential hazards, the lighting, the size and manoeuvrability of the vehicle, and a host of other matters. 10. Most fundamentally in the circumstances of this case, in my view, is the importance of driving a vehicle, especially a very heavy vehicle, in a manner that allows the driver to react in response to some unexpected event which, at any point in time, might eventuate. In making that observation, I do not suggest that an accident which arises from an unexpected event will always involve negligent driving. As I have said, it will always depend upon the circumstances. 11. In this case, however, the circumstances included a busy major arterial roadway in Sydney at a time when there was obviously a significant percentage of heavy vehicles on the road and, as the learned Magistrate noted, the appellant drove a large heavy truck so closely behind the swerving truck that he could not see the road conditions or traffic ahead. As the Magistrate noted, he was travelling too closely and too quickly in the circumstances to stop the vehicle if the conditions ahead were to change and, as the Magistrate noted, they did change. In circumstances where he could not see what was ahead, an ordinary, prudent driver would have decelerated sufficiently so as to allow him to react to the traffic conditions which were hidden from his view. This is particularly the case when driving a vehicle which weighs 33 tonnes. As the circumstances in this case clearly establish, an impact of a vehicle with that mass at even a low speed has the potential to cause catastrophic injuries. 12. 36 I am satisfied beyond reasonable doubt that the offence is proven and I find the appellant guilty of that offence.