Citation: Rachael Louise BAKER v Regina [2008] NSWDC 336
Court: District Court of New South Wales
Date: 30 January 2008
Judge(s): Berman SC DCJ
Background
The appellant was convicted in a Local Court of negligent driving occasioning grievous bodily harm following a collision at an intersection. She had been attempting to turn right and, after stopping in a stand-off with an oncoming vehicle that was also turning right, she proceeded through the turn.
As she completed the turn, she struck a cyclist who had overtaken the stationary oncoming vehicle on its left side. The cyclist sustained significant injuries accepted to constitute grievous bodily harm. The appellant said she had looked in the direction from which the cyclist was travelling for five to ten seconds before proceeding and believed it was safe to turn.
The appellant appealed her conviction to the District Court on two grounds, primarily challenging the legal standard of negligence applied by the magistrate at first instance.
Legal Issues
- Whether the magistrate applied the correct standard of negligence for an offence under s 42 of the Road Transport (Safety and Traffic Management) Act 1999, or whether she incorrectly applied a standard closer to the civil negligence test or the higher criminal standard under s 54 of the Crimes Act 1900.
- Whether, on the evidence, the appellant's driving fell sufficiently short of the required standard to support a conviction for negligent driving occasioning grievous bodily harm.
Decision
The District Court addressed the question of the applicable negligence standard. It noted that as far back as 1950, the courts recognised that the negligence required for a driving negligence offence is a lesser standard than that required under s 54 of the Crimes Act 1900. The standard for the driving offence sits below the criminal standard of gross negligence but above the ordinary civil standard.
Berman SC DCJ found it unnecessary to resolve the precise standard adopted by the magistrate below. Even applying the higher criminal standard, which the appellant's counsel argued for, the court was satisfied that the appellant's conduct represented a serious falling short of the standard of driving required such that criminal punishment was appropriate.
The court identified the critical factual finding as a failure to keep a proper lookout. The appellant acknowledged she was aware cyclists commonly used the road in question, yet she proceeded to turn despite not seeing the cyclist, even though he was present and not fully obscured by the stationary vehicle for the entire five to ten seconds she claimed to have been looking. The only explanation for the collision, on the evidence, was that she had not looked carefully enough.
The appeal was dismissed and the magistrate's orders were confirmed.
Orders Made
- Appeal dismissed.
- Orders of the magistrate confirmed, with the licence suspension commencing on 30 January 2008.
- The appellant's licence was noted as surrendered.
Key Takeaways
- The District Court confirmed that the standard of negligence for a driving negligence offence under the Road Transport (Safety and Traffic Management) Act 1999 is lower than the gross negligence standard required under s 54 of the Crimes Act 1900, consistent with authority dating to at least 1950.
- In dismissing the appeal, the court found that even applying the more demanding criminal standard, the appellant's conduct still met the threshold of a serious falling short of the required standard of driving.
- A motorist's awareness that cyclists regularly use a particular road is a relevant factual consideration when assessing whether that motorist exercised sufficient care before executing a turn.
- Failure to observe a road user who was present and not entirely obscured, over a period of five to ten seconds of claimed observation, supported a finding of failure to keep a proper lookout.
- Where an alternative legal standard could have been applied, and the conduct satisfies even the higher of the two standards, an error in the choice of standard will not necessarily be fatal to a conviction on appeal.
Legislation and Cases Referenced
Legislation:
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 42
- Crimes Act 1900 (NSW), s 54
Cases:
- No specific cases were named in the judgment text, though the court referenced authority from 1950 establishing the standard of negligence applicable to driving offences.