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District Court 3 September 2021

R v Black

[2021] NSWDC 460

Traffic & driving
CRIME TRIAL JUDGE ALONE TRIAL JUDGE ALONE FUNDAMENTAL PRINCIPLES EXPLAINED

Citation: R v Black [2021] NSWDC 460
Court: District Court of New South Wales
Date: 3 September 2021
Judge: Haesler SC DCJ

Background

In July 2019, near Jamberoo on the NSW South Coast, a driver turned right at a T-intersection and drove into the path of an oncoming motorcycle. The collision threw the motorcyclist into a ditch, causing fractures to his right arm and right leg, constituting grievous bodily harm.

The driver was charged under s 51A(3)(c) of the Crimes Act 1900 (NSW) with driving a motor vehicle in a manner dangerous to another person, whereby an impact occurred causing grievous bodily harm. He elected a judge-alone trial, which the prosecution did not oppose.

The trial was conducted entirely through the virtual court system during the COVID-19 pandemic lockdown, with no personal appearances. The prosecution tendered written statements, photographs, expert reports, a triple-zero call recorded immediately after the crash, and an edited electronically recorded police interview with the accused. The accused did not give or tender evidence.

  • Whether the accused's manner of driving, specifically his failure to observe the oncoming motorcycle before turning right across the opposing lane, amounted to driving in a manner dangerous to another person within the meaning of s 51A(3)(c) of the Crimes Act 1900 (NSW).
  • Whether the circumstantial evidence was sufficient to exclude beyond reasonable doubt the possibility that the accused had looked for oncoming traffic before turning.
  • If the accused did look but failed to notice the motorcycle, whether that degree of inattentiveness was serious enough to constitute dangerous driving.

Decision

There was no dispute about the core facts: the accused turned right into the oncoming lane, struck the motorcycle that was already at the intersection, and the motorcyclist had no opportunity to avoid the collision. The sole question was whether the manner of driving was "dangerous."

His Honour considered two possible bases for a guilty verdict. The first was that the accused had not looked for oncoming traffic at all before turning. The accused's police interview contained some hesitation and apparent rationalisation, raising the inference that he may have simply followed another vehicle through the intersection without independently checking. However, the interview also contained evidence of general attentiveness to traffic conditions. His Honour found that, even if he did not positively accept the accused's account, he could not exclude the possibility it was true. On that basis, the accused received the benefit of the doubt.

The second basis was that the accused had looked but was inattentive to the presence of the motorcycle. His Honour accepted this was the more likely scenario on the objective facts. The accused had slowed for the turn, was otherwise driving compliantly, and had looked before turning. The failure was one of inattentiveness rather than a wholesale failure to observe.

His Honour held that, while that inattentiveness breached the accused's duty to other road users and was negligent, it had not been proved beyond reasonable doubt to be so serious as to constitute driving in a manner dangerous to the public. The consequences for the motorcyclist were severe, but the degree of risk created by the driving at that point, assessed in all the circumstances, did not reach the criminal threshold. A verdict of not guilty was entered.

Orders Made

  • The accused was found not guilty of driving a motor vehicle in a manner dangerous to another person contrary to s 51A(3)(c) of the Crimes Act 1900 (NSW).

Key Takeaways

  • A conviction for dangerous driving requires proof beyond reasonable doubt that the manner of driving was dangerous, not merely that the driving was negligent or that it had serious consequences. The District Court confirmed these are distinct concepts.
  • Where a driver looked before turning but failed to observe an oncoming vehicle, the degree of inattentiveness must be assessed against all the circumstances to determine whether it reaches the criminal threshold of dangerous driving.
  • Grievous bodily harm resulting from a collision does not, of itself, establish that the driving was dangerous. The nature and degree of the risk created by the driving at the relevant point in time remains the central inquiry.
  • In a judge-alone trial, the trial judge is required to articulate the full reasoning process, including directions on onus, the treatment of circumstantial evidence, and the applicable legal principles, rather than simply returning a verdict.
  • Where a court cannot positively accept an accused's account but cannot exclude the possibility it might be true, the accused is entitled to the benefit of that doubt. The prosecution bears the entire burden of proof.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 51A(3)(c)

Cases
- De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100
- Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
- King v The Queen [2012] HCA 24; (2012) 245 CLR 588
- McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44
- R v Hopton (unreported, NSWCCA, 8 October 1998)
- Saunders v R [2002] NSWCCA 362; (2002) 133 A Crim R 104
- The King v Coventry (1938) 59 CLR 633