Citation: R v Wells [2016] NSWDC 169
Court: District Court of New South Wales
Date: 17 August 2016
Judge: Berman SC DCJ
Background
A volunteer rural fire-fighter was driving a heavy category-1 fire tanker (approximately 13 tonnes) on the F3 Freeway late at night when he performed a U-turn through a designated U-turn bay to return to an incident site. As he completed the U-turn and entered the northbound lanes, a Toyota Corolla driven by Mr Peter Mihailidis, with his wife Katina Mihailidis as a passenger, was approaching from the south. The accused interpreted a flash of the Corolla's high beams and a lane change as a signal that the approaching driver was giving way, and he continued the manoeuvre.
The fire tanker and the Corolla collided at low speed. The collision damaged the Corolla's electrical system, leaving the vehicle entirely unlit and stationary in a live lane. Mrs Mihailidis survived the initial collision but was fatally struck by a third vehicle, a Mazda, whose driver had been distracted by the tanker's flashing lights and did not see the unlit Corolla in time to stop.
Earlier in 2016, the accused stood trial before a jury on charges of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. The jury returned not guilty verdicts on both counts. Pursuant to section 166 of the Criminal Procedure Act, and with the accused's consent, the matter proceeded before the same judge on two back-up charges: negligent driving occasioning the death of Mrs Mihailidis, and making a U-turn without giving way to an approaching vehicle.
Legal Issues
- Whether the accused was driving an "emergency vehicle" within the meaning of the Australian Road Rules, which would have engaged the exemption in Rule 306 and potentially excused non-compliance with road rules.
- Whether the accused's driving was negligent.
- Whether the accused's negligent driving caused the death of Mrs Mihailidis, given that death resulted from a second collision involving a separate vehicle.
- Whether the accused failed to give way to the approaching vehicle when making his U-turn, in breach of Road Rule 38, and if so, whether the Rule 306 emergency vehicle exemption applied to that charge.
Decision
Emergency vehicle exemption. The court found it unnecessary to definitively resolve whether the accused was driving an "emergency vehicle" at the time, because the Rule 306 exemption only applies where "the driver is taking reasonable care." Having found the driving to be negligent (see below), the court concluded the exemption was unavailable in any event. Defence counsel conceded he could not identify a scenario where a driver found negligent could simultaneously be found to have taken reasonable care.
Negligent driving. The court found the accused drove negligently by proceeding with the U-turn and entering the northbound lanes without first waiting for the Corolla to pass. The accused had approximately 11 seconds during which he could have allowed the Corolla to pass safely. The court rejected the submission that the flashing of high beams and the lane change by Mr Mihailidis constituted a clear signal of consent for the accused to complete the U-turn rather than wait.
Causation. The court applied a common sense approach to causation, drawing on the principles from Royall v The Queen, Cameron v R, and Thabo-Meli v R. The collision between the tanker and the Corolla left an unlit, stationary vehicle in a live freeway lane at night. A further collision was, in the court's assessment, almost inevitable in those circumstances. The court was satisfied beyond reasonable doubt that the manner in which the accused drove the tanker caused Mrs Mihailidis' death, notwithstanding that the fatal blow came from a third vehicle.
U-turn charge. Having found the driving negligent and the Rule 306 exemption unavailable, the court found that the accused failed to give way to the approaching Corolla when making the U-turn, in breach of Road Rule 38. The accused was found guilty of both back-up charges.
Orders Made
• The accused is found guilty of negligent driving occasioning death
• The accused is found guilty of breaching Road Rule 38
• The accused is guilty of the 2 back up charges on the section 166 certificate
Key Takeaways
- The Rule 306 emergency vehicle exemption under the Australian Road Rules requires, among other things, that the driver be taking "reasonable care." A finding of negligent driving is irreconcilable with that requirement, and the exemption will therefore not be available to a driver whose conduct has already been characterised as negligent.
- Causation in criminal proceedings is assessed using a common sense approach rather than a technical one. Where a defendant's negligent driving set in motion a sequence of events rendering a further collision almost inevitable, the court may find the initial negligence caused the ultimate death even though a separate vehicle delivered the fatal blow.
- Back-up charges under section 166 of the Criminal Procedure Act allow a court (with the accused's consent) to determine lesser charges arising from the same facts after acquittal on the principal charge, providing a mechanism for resolution where a jury has not convicted on the more serious count.
- A motorist's conduct, such as flashing high beams or changing lanes, does not necessarily constitute an unambiguous signal permitting another driver to complete a U-turn across the path of that motorist's approaching vehicle.
- Sufficient evidence of negligence existed where the driver had approximately 11 seconds in which he could have waited for the approaching vehicle to pass, but instead proceeded with his U-turn based on an equivocal interpretation of the other driver's actions.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act (NSW), s 166
- Australian Road Rules, rr 38, 306
- Rural Fires Act (NSW)
Cases
- Royall v The Queen (1990) 172 CLR 378
- Cameron v R (unreported, NSWCCA, 27 September 1994)
- Thabo-Meli v R [1954] 1 WLR 228
- DPP v Yeo & Anor [2008] NSWCSC 953