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Court of Criminal Appeal 16 November 2017

Nisan v R

[2017] NSWCCA 265

Traffic & driving
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE TRUCK COLLISION AT INTERSECTION BRAKE FAILURE WHETHER APPELLANT WAS WRONGLY CONVICTED WHETHER REASONS GIVEN WERE INADEQUATE

Citation: Nisan v R [2017] NSWCCA 265
Court: NSW Court of Criminal Appeal
Date: 16 November 2017
Judges: Hoeben CJ at CL, Schmidt J, Campbell J

Background

The appellant was an employed truck driver who, in October 2014, was driving a fully laden truck down a steep hill at Warringah Road, Dee Why. The truck failed to slow to the 20 km/h speed limit applicable to trucks at that location and was travelling at approximately 65 km/h when it collided with other vehicles at the intersection of Warringah and Pittwater Roads. Several people suffered serious injuries, including the appellant himself.

Following a judge-alone trial in the District Court, the appellant was convicted of two counts of dangerous driving occasioning grievous bodily harm. He was sentenced to terms of imprisonment of three years (with a two-year non-parole period) and two years (with a non-parole period of one year and nine months). The appellant was not the owner of the truck and had no involvement in its maintenance.

The appellant's case was that brake failure, caused by poorly adjusted and non-manufacturer-recommended brake linings, prevented him from slowing the truck. The Crown's case was that the appellant had failed to use a sufficiently low gear and engage the exhaust brake during the descent, resulting in dangerous speed.

  • Whether expert opinion evidence from the Crown's crash scene investigator was properly admitted, given it rested on assumptions not established by the evidence
  • Whether that expert's opinion on the appellant's record of interview fell outside his area of expertise
  • Whether the verdict was unsafe, unsatisfactory or unreasonable in light of the evidence, particularly the evidence of brake failure
  • Whether the trial judge gave adequate reasons for rejecting the defence expert, accepting the Crown expert, and making key factual findings
  • Whether the sentences were manifestly excessive and internally inconsistent with the trial judge's own findings on moral culpability

Decision

Conviction appeal

Schmidt J (with whom Hoeben CJ at CL and Campbell J agreed) held that the Crown had not established beyond reasonable doubt that the collision resulted from the appellant's manner of driving rather than the state of the truck's brakes. The evidence showed that the brakes were out of adjustment, that non-manufacturer-approved brake linings had been fitted the previous month, and that the Crown's own expert said he would not have driven the truck in that condition. Critically, neither of the post-collision vehicle inspectors tested whether overheating had contributed to brake failure, as the defence engineer had opined.

The Court found that the expert evidence ought to have led the trial judge to conclude that the Crown could not exclude the possibility that brake failure caused the accident. The truck had been found to be in low range but in neutral at the time of the collision, and the Court accepted that the appellant had attempted to use the foot brake to reduce speed and change to a lower gear, but was prevented from doing so because the brakes faded. In those circumstances, his use of the foot brake was not dangerous conduct but a necessary response to the truck's speed.

Campbell J added that, having reviewed the evidence independently, it was not open to the trial judge to convict the appellant, notwithstanding the advantages the trial judge had in observing witnesses firsthand.

Sentence appeal

The Court also found that the sentences were not properly open on the evidence. The trial judge had found, among other things, that there was a reasonable doubt whether the appellant acted consciously or was aware of any breach of the required standard of care, and that there was no evidence of recklessness. Despite those findings, her Honour assessed the appellant's moral culpability and the objective seriousness of his offending as falling at the higher end of the scale. The Court found those conclusions were inconsistent with the trial judge's own factual findings and involved legal error. Given the conviction appeal succeeded, the sentence appeal required no further determination.

Orders Made

  • Leave to appeal granted
  • Conviction appeal upheld
  • Convictions quashed
  • Appellant released forthwith

Key Takeaways

  • A conviction for dangerous driving requires the Crown to prove beyond reasonable doubt that the dangerous driving caused the relevant harm. Where the evidence raises a viable, unexcluded alternative cause (such as mechanical failure), the Crown's onus is not discharged.
  • Expert opinion evidence must be grounded in assumptions that are actually established by the evidence. Where a Crown expert's opinions rest on factual premises that cannot be made out, admission of that evidence may constitute error.
  • The Court of Criminal Appeal confirmed that internal inconsistency between a trial judge's factual findings and the ultimate verdict can render a conviction unsafe and unreasonable.
  • Sentencing findings on moral culpability must be consistent with the factual findings made at the conviction stage. Where a trial judge found no evidence of recklessness and expressed reasonable doubt about conscious wrongdoing, a conclusion that moral culpability fell at the higher end of the scale was not open.
  • Where a driver uses available braking systems in response to a developing hazard, but those systems fail due to mechanical defects the driver had no reason to know about, that conduct may not satisfy the standard required for dangerous driving.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW)
- Road Rules 2008 (NSW), r 108 (trucks and buses low gear sign)

Cases
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- R v Banhelyi [2012] QCA 357
- R v Nisan (District Court (NSW), Payne DCJ, 21 November 2016, unrep)
- R v Nisan (District Court (NSW), Payne DCJ, 27 April 2017, unrep)
- R v Nisan (District Court (NSW), Payne DCJ, 16 October 2017, unrep)