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District Court 28 June 2021

R v PIPER (No. 2)

[2021] NSWDC 279

Traffic & driving
NEGLIGENT DRIVING TEST TO BE APPLIED EXPERT EVIDENCE DIFFERENCE IN EXPERT OPINIONS CHOOSING BETWEEN EXPERT WITNESSES AUTREFOIS ACQUIT NOT AVAILABLE

Citation: R v Piper (No. 2) [2021] NSWDC 279
Court: District Court of NSW
Date: 28 June 2021
Judge: Lerve DCJ

Background

The accused was involved in a collision on 1 March 2019 on the Willawong Creek Bridge near Murringo on the Young to Boorowa Road. His Toyota LandCruiser utility struck two motorcycles travelling in the opposite direction, killing both riders and seriously injuring a pillion passenger. All vehicles were roadworthy, no one was speeding, and no one was affected by alcohol or drugs. The impacts occurred on the accused's incorrect side of the road.

The accused was tried without a jury on two charges of Dangerous Driving Occasioning Death and one charge of Dangerous Driving Occasioning Grievous Bodily Harm. Lerve DCJ acquitted the accused on all three charges on 16 November 2020. Following those acquittals, the Crown proceeded with back-up matters attached to a certificate under s 166 of the Criminal Procedure Act 1986, seeking a finding of guilty on three corresponding charges of Negligent Driving Occasioning Death and Negligent Driving Occasioning Grievous Bodily Harm under s 117 of the Road Transport Act 2013.

The hearing of the s 166 matters took place on 7 May 2021. The same judge presided, which the court explained was appropriate and was the express position of both parties, notwithstanding the understandable distress of the victims' families.

Legal Issues

  • Whether the acquittal on dangerous driving charges precluded a verdict of guilty on the lesser back-up offence of negligent driving (autrefois acquit)
  • Whether the Crown proved beyond reasonable doubt that the accused drove negligently within the meaning of s 117 of the Road Transport Act 2013
  • Whether the "agony of the moment" doctrine applied to excuse or negate negligence where the accused had approximately 1.5 seconds to react to an emergency
  • Whether a view of the collision scene should be granted as fresh evidence in the s 166 proceedings
  • How to resolve competing expert opinions from the Crown's expert (Simon Parker) and the defence expert (Grant Johnston)

Decision

Issue 1: Autrefois acquit
The court confirmed that the defence of autrefois acquit was not available. Dangerous driving and negligent driving are different offences involving different tests, and acquittal on the more serious charge does not preclude a finding of guilty on the lesser charge (at [129], [143]). This is consistent with the Court of Criminal Appeal's reasoning in Prineas v R [2018] NSWCCA 221.

Issue 2: Application for a view
The Crown made a late and hesitant application for the court to attend the collision scene as fresh evidence under s 168(2) of the Criminal Procedure Act. The court refused the application. Given the substantial volume of photographic evidence, drone footage, and drive-through videos already before the court, Lerve DCJ was not persuaded that a view would materially assist in resolving the issues (at [41]-[45]). There were also significant logistical obstacles, including a five-hour round trip and the need for traffic management and appropriate vehicles (at [44]).

Issue 3: Expert evidence
The court preferred the evidence of the defence expert, Grant Johnston, over that of the Crown expert, Simon Parker. Lerve DCJ described Parker as "glib and dogmatic," noting he had not attended the scene, had not considered any eyewitness accounts, and had not accessed the drive-through video footage (at [114]). Johnston, by contrast, attended the scene, drove across the bridge in a vehicle of similar height to the accused's, made appropriate concessions under cross-examination, and was described as "by far the more impressive witness" (at [124]). Where their evidence conflicted, the court preferred Johnston's (at [124]).

Issue 4: Negligent driving and the "agony of the moment"
The court accepted that it could not be excluded as a reasonable possibility that the accused moved onto the incorrect side of the road as a reaction to seeing the motorcycles on the incorrect side of the road (at [147]). The accused had approximately 1.5 seconds in which to make an emergency decision (at [122]). Applying the principles from Stuart v Walsh [2012] NSWCA 186 and Leishman v Thomas (1957) 57 WN (NSW) 173, the court held that the "agony of the moment" argument succeeded: a person faced with a sudden emergency and who reacts instinctively is not necessarily to be judged negligent for the response made under those extreme conditions (at [147]). The Crown failed to prove negligence beyond reasonable doubt, and verdicts of not guilty were returned on all three back-up charges.

Orders Made

  • Verdict of not guilty on all three negligent driving charges
  • The accused is discharged

Key Takeaways

  • Acquittal on a charge of dangerous driving does not engage the defence of autrefois acquit in respect of a back-up charge of negligent driving under s 117 of the Road Transport Act 2013; the offences involve different tests and a trial court may consider the lesser charge independently (at [129], [143]).
  • Under the test in Director of Public Prosecutions v Yeo (2008) 188 A Crim R 82, confirmed in Prineas v R [2018] NSWCCA 221, negligent driving requires proof beyond reasonable doubt that the driving fell below the standard of a reasonably prudent driver in all the circumstances, including the physical conditions of the road (at [49]-[52], [132]).
  • Where a driver is confronted with a sudden emergency and reacts instinctively with very limited time to respond, the "agony of the moment" doctrine may negate a finding of negligence, even if the response ultimately contributed to harm; the District Court found approximately 1.5 seconds was insufficient time to hold the accused to the standard of measured response expected in ordinary conditions (at [122], [147]).
  • An expert witness who does not attend the scene, declines to review eyewitness accounts, and does not access available drive-through footage may be found significantly less persuasive than one who undertakes those steps; the court's assessment of expert credibility here was a material factor in the outcome (at [112]-[124]).
  • A party seeking to introduce a view as fresh evidence in s 166 back-up proceedings must make a formal application; where the existing photographic and video record is extensive and a view would add little, the court retains a firm discretion to refuse even a sympathetically received request (at [30], [41]-[45]).

Legislation and Cases Referenced

Legislation
- Covid-19 Legislation (Emergency Measures) Act , 2020
- Crimes Act , 1900
- Criminal Procedure Act , 1986
- Evidence Act , 1995
- Road Transport Act , 2013

Cases
- Director of Public Prosecutions v Yeo (2008) 188 A Crim R 82; [2008] NSWCCA 953
- KRM v The Queen (2001) 206 CLR 22
- Leishman v Thomas (1957) 57 WN (NSW) 173
- Mule v The Queen [2005] 156 ACR 203, [2005] HCA 49
- Osman v R [2020] NSWDC 217
- Pell v The Queen [2020] HCA 12
- Prineas v R [2018] NSWCCA 221
- R v King [2020] NSWDC 505
- Stuart v Walsh [2012] NSWCA 186