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District Court 17 August 2020

R v Franks

[2020] NSWDC 531

Traffic & driving
CRIMINAL LAW JUDGE ALONE TRIAL CRIMES ACT 1900 S 52A(2) DRIVING OFFENCES ALCOHOL PRESENT WHILE DRIVING IMPACT OCCASIONING DEATH

Citation: R v Franks [2020] NSWDC 531
Court: District Court of New South Wales
Date: 17 August 2020
Judge: Grant DCJ

Background

On the evening of 19 July 2018, the accused was driving a Nissan Navara south along Lowe Street in the small town of Howlong, New South Wales. He had a blood alcohol concentration of 0.160 grams per 100 millilitres at the time of the collision, well above the prescribed limit, and above the 0.15% threshold for the aggravated offence.

At the same time, a 23-year-old man was riding an unregistered trail bike north along the same street at 67 kilometres per hour in a 50-kilometre-per-hour zone. The bike had no headlight, no registration, and the rider was not wearing a helmet. His blood alcohol concentration was 0.225%. As the accused turned right into the driveway of his home, the motorcycle struck the left side of his vehicle. The rider was thrown from the bike and died.

The accused was charged under section 52A(2) of the Crimes Act 1900 with driving under the influence of intoxicating liquor whereby the vehicle was involved in an impact occasioning death, with the aggravating circumstance that his blood alcohol exceeded 0.15%. He elected a judge alone trial, with the Crown's consent. All elements of the offence were conceded by the defence. The sole issue was whether the statutory defence under section 52A(8) was made out.

  • Whether the accused had established, on the balance of probabilities, that the death occasioned by the impact was not in any way attributable to his state of intoxication, as required by the defence under section 52A(8) of the Crimes Act 1900.
  • Specifically, whether there was any causal connection between the accused's blood alcohol level of 0.160 and the fatal collision.

Decision

The central question was causation: could the accused prove, on the balance of probabilities, that his intoxication played no part in causing the death? The defence under section 52A(8) requires the accused to sever that causal link entirely. It is not enough to show that intoxication was not the primary cause; the accused must establish it was not a contributing factor in any way.

Both the defence expert (John Jamieson) and the Crown expert (Grant Johnston) gave unequivocal evidence that, in the circumstances of this collision, even a sober driver using low-beam headlights on a built-up road at night would not have detected the unlighted motorcycle in sufficient time to react and avoid impact. The Crown expert estimated the motorcycle's recognition distance on low beam at approximately 40 to 45 metres, and the time required to complete the turn at two to three seconds, with a perception and response time of approximately 2.2 seconds. Both experts concluded that an average driver in those conditions probably could not have avoided the collision.

His Honour rejected the Crown's argument that the accused was obliged to be driving on high beam in a built-up area, finding that proposition inconsistent with common sense. The court accepted the shared expert opinion that the absence of a headlight, reflectors, or reflective clothing on the motorcycle, combined with the road geometry and lighting conditions, meant the accused would not have seen the rider regardless of his blood alcohol level.

Grant DCJ was satisfied on the balance of probabilities that there was no causal connection between the accused's intoxication and the death of the deceased. The statutory defence under section 52A(8) was made out, and the accused was found not guilty on both the primary charge and the alternative charge.

Orders Made

  • Verdict of not guilty entered on both charges.
  • Orders for acquittal recorded accordingly.

Key Takeaways

  • Under section 52A(8) of the Crimes Act 1900, an accused bears the onus of proving, on the balance of probabilities, that the death occasioned by the impact was not in any way attributable to the fact of their intoxication. The causal connection must be absent entirely.
  • Where uncontested expert evidence from both parties establishes that even a sober driver could not have avoided the collision in the same circumstances, the absence of causal connection between intoxication and death can be established on the balance of probabilities.
  • The District Court declined to accept that drivers in built-up areas are obliged to use high-beam headlights, characterising such a proposition as contrary to common sense.
  • Concurrent expert agreement on a factual question, particularly one central to the statutory defence, carries significant weight in a judge alone trial.
  • The condition of the deceased's vehicle (no headlight, no reflectors, unregistered, ridden without a helmet and at excess speed) and the deceased's own intoxication formed part of the factual matrix the court examined in assessing whether the accused's intoxication contributed to the outcome.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(2), 52A(8)
- Criminal Procedure Act 1986 (NSW), ss 133(2), (3), 191
- Evidence Act 1995 (NSW), s 191

Cases
- Fleming v The Queen (1998) 197 CLR 250 (High Court principles applicable to judge alone trials)
- R v Thai [2009] NSWDC 57