Citation: Majury (nee Calvert) v R [2013] NSWDC 325
Court: District Court of New South Wales
Date: 16 December 2013
Judge: Cogswell SC DCJ
Background
The appellant was a motorcyclist who, while riding with a group on the Monaro Highway near Cooma, pulled to the left and attempted a u-turn to rejoin companions who had turned off ahead of her. As she crossed the centre line, she was struck by another motorcyclist travelling in the same direction who had pulled out around the group. Both riders sustained serious injuries in the resulting collision.
The appellant was charged with negligent driving occasioning serious bodily harm under the Road Transport (Safety and Traffic Management) Act 1999 (NSW). Following a hearing at Cooma Local Court in March 2013, Magistrate Bone convicted her, finding she had failed to wait until she had a clear view of approaching traffic before commencing her turn.
The appellant appealed her conviction to the District Court. The appeal proceeded on the written record of the Local Court proceedings, without additional evidence, with counsel presenting argument on both sides.
Legal Issues
- Whether the Magistrate erred in being satisfied beyond reasonable doubt that the appellant drove negligently in executing her u-turn.
- Whether the prosecution had excluded, to the required standard, the possibility that the other motorcycle was beyond the appellant's line of sight when the turn commenced.
- Whether a key expert calculation relied upon by the Magistrate rested on an unwarranted assumption, namely that the other rider's motorcycle had been travelling at a constant speed consistent with the appellant's group.
Decision
The central challenge on appeal concerned an expert estimate placing the other motorcycle no more than 120 metres behind the appellant at the moment she commenced her turn. The appellant's line of sight was approximately 155 metres before the road curved out of view. If the expert's estimate was correct, the other bike would have been visible to the appellant when she looked behind her.
That estimate, however, was calculated on the assumption that the other motorcycle had been travelling at a constant speed, roughly matching the pace of the appellant's group. The District Court found that assumption was undermined by evidence from two members of the appellant's group who had been checking their mirrors between Bombala and the collision site and had not seen the other motorcycle. A further witness gave evidence that, near the intersection, the other rider had been heard rapidly decelerating, suggesting he had been travelling considerably faster than the group beforehand.
Cogswell SC DCJ accepted that the Magistrate appeared to have overlooked this flaw in the expert's methodology. Once the constant-speed assumption was treated as unreliable, a real possibility arose that the other motorcycle was still beyond the crest and bend, and therefore outside the appellant's line of sight, when she began her turn. The prosecution had not excluded that possibility to the standard required for a criminal conviction.
The District Court was not satisfied beyond reasonable doubt that the appellant had driven negligently in making the turn, and allowed the appeal accordingly.
Orders Made
- The conviction was set aside pursuant to s 20 of the Crimes (Appeal and Review) Act 2001 (NSW).
- The appellant was found not guilty and acquitted of the offence.
Key Takeaways
- A conviction for negligent driving occasioning serious bodily harm cannot stand where a reasonable possibility consistent with the accused's innocence has not been excluded beyond reasonable doubt.
- Expert accident reconstruction evidence depends on the reliability of its underlying assumptions. Where evidence at trial undermines a key assumption (here, constant vehicle speed), a finding built on that assumption may be insufficient to support the required level of satisfaction.
- The District Court found it was not enough for an expert estimate to be plausible in general terms; if the evidentiary record raised a real possibility that the assumption was wrong, the Crown had to address that gap.
- On a Local Court conviction appeal, the District Court reviews the magistrate's reasons and the evidence on the record without hearing fresh evidence, unless additional evidence is specifically admitted.
- Under s 20 of the Crimes (Appeal and Review) Act 2001 (NSW), the District Court's power on a successful conviction appeal is to set aside the conviction, rather than simply to record a formal "appeal upheld" order.
Legislation and Cases Referenced
Legislation:
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 42(1) (offence of negligent driving occasioning serious bodily harm)
- Crimes (Appeal and Review) Act 2001 (NSW), s 20 (District Court powers on appeal from Local Court conviction)
Cases cited: None reported in the judgment.