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Court of Criminal Appeal 11 November 2024

Omigie v R

[2024] NSWCCA 205

Traffic & driving
CRIME APPEAL APPEAL AGAINST CONVICTION UNREASONABLE VERDICT DRIVING IN A MANNER DANGEROUS MISCONDUCT BY DRIVING

Citation: Omigie v R [2024] NSWCCA 205
Court: Court of Criminal Appeal, NSW
Date: 11 November 2024
Judges: Harrison CJ at CL; Dhanji J; Rigg J (Dhanji and Rigg JJ agreeing with Harrison CJ at CL)

Background

In the early hours of 9 May 2019, the appellant was driving a green Toyota Echo on the M4 Motorway at Granville when his vehicle came to a complete stop in lane 4. Traffic was free-flowing but increasing, the speed limit was 80 km/h, and conditions were dark. The stationary vehicle created a hazard that triggered a chain reaction of collisions involving multiple other drivers, ultimately resulting in the death of one person and injuries to others.

The appellant was tried before a jury in the District Court at Parramatta. The jury returned guilty verdicts on Count 1 (driving in a manner dangerous, whereby the vehicle was involved in an impact occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW)) and Count 4 (failure to stop and render assistance following an impact occasioning death, contrary to s 52AB(1)). The jury acquitted the appellant on Count 2 (misconduct by driving causing bodily harm to one victim) and could not reach a verdict on Count 3 (the same offence in relation to a second victim).

The appellant had served his sentence of 3 years and 6 months (with a non-parole period of 2 years and 2 months) and was in immigration detention at the time of the appeal. He appealed against his convictions on two grounds: that the guilty verdicts were unreasonable, and that they were inconsistent with the acquittal on Count 2 and the jury's inability to reach a verdict on Count 3.

  • Whether the guilty verdicts on Counts 1 and 4 were unreasonable and not supported by the evidence, including whether the appellant's vehicle was "involved in an impact occasioning death" within the meaning of s 52A(6) of the Crimes Act 1900 (NSW) given that his vehicle made no direct contact with any other vehicle.
  • Whether intervening acts by other drivers broke the chain of causation between the appellant's driving and the fatal impact.
  • Whether the guilty verdicts on Counts 1 and 4 were logically inconsistent with the acquittal on Count 2 and the failure to reach a verdict on Count 3, where all counts arose from the same driving incident.

Decision

On the reasonableness ground, the Court held that it was entirely open to the jury to find that the appellant's stationary vehicle in lane 4 was a substantial and operating cause of the chain of collisions that followed. The fact that some drivers managed to avoid the hazard through their own skill did not answer the question of whether the appellant's driving created a danger that others could not avoid.

The Court rejected the argument that the actions of intervening drivers amounted to a novus actus interveniens (a new act breaking the chain of legal causation). The appellant himself conceded at trial that his vehicle had created a hazard, and conceded on appeal that the immediate cause of the fatal impact was a foreseeable consequence of that hazard. Stopping completely on a busy motorway in darkness and in free-flowing traffic represented a serious breach of proper standards of vehicle management, exposing others to a level of risk well beyond that ordinarily associated with driving.

On the inconsistency ground, the Court found a rational explanation for the divergent outcomes on the four counts. The jury could reasonably have concluded that one injured victim (Mr Matkovich) was sufficiently removed from the causal chain leading to the death, and substantially responsible for his own injuries, so as to make conviction unreasonable on Count 2. As for the second injured victim (Ms Al-Djaidi), whose vehicle was a link in the chain of causation leading to the fatal impact, the jury's inability to reach a verdict on Count 3 was explicable by genuine disagreement rather than any error or compromise. Dhanji J added that, on his own assessment of the evidence, the appellant's vehicle substantially contributed to the relevant collision without any break in the chain of causation, and that had there been an acquittal (rather than a hung jury) on Count 3, a real inconsistency argument would have arisen for determination.

The Court granted an extension of time and leave to appeal, given the delays attributable to the appellant's circumstances, but dismissed the appeal on both grounds.

Orders Made

  • Extension of time within which to bring the appeal granted.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A vehicle need not make physical contact with another vehicle to be "involved in an impact occasioning death" under s 52A of the Crimes Act 1900 (NSW): stopping as a stationary hazard that is a substantial and operating cause of a chain of collisions can be sufficient.
  • Where other drivers' responses to a hazard are foreseeable consequences of the dangerous driving, those responses do not constitute a novus actus interveniens breaking the chain of causation.
  • In dismissing the inconsistency ground, the Court of Criminal Appeal confirmed that a distinction exists between a jury acquittal and a jury disagreement: the latter does not, of itself, generate a logical inconsistency with a guilty verdict on a related count.
  • Divergent jury outcomes across counts arising from the same incident can be explained by differences in the causal proximity of each victim to the central event, as well as the degree to which each victim may have contributed to their own harm.
  • An appellant who has served the entirety of their sentence is not automatically precluded from obtaining an extension of time, though the Court may note the absence of continuing practical consequences when considering the interests of finality.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A, 52AB, 53

Cases
- AH v R [2019] NSWCCA 152
- Baden-Clay v The Queen (2016) 258 CLR 308; [2016] HCA 35
- Barney v R [2023] NSWCCA 85
- Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Jiminez v R (1992) 173 CLR 572; [1992] HCA 14
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- PA v R [2015] NSWCCA 18; (2015) 253 A Crim R 154
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v Saunders [2002] NSWCCA 362; (2002) A Crim R 104
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Reyne (a pseudonym) v R [2022] NSWCCA 201; (2022) 302 A Crim R 297
- Saunders v R [2022] NSWCCA 273
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- SM v R [2022] NSWCCA 13
- Smith v R [2023] NSWCCA 118