Farrell v R [2026] NSWCCA 152

Citation: Farrell v R [2026] NSWCCA 152
Court: Court of Criminal Appeal
Date: 30 September 2026
Judge(s): Leeming JA at [1]; Fagan J at [2]; Emmett J at [78]

Background

The applicant was the driver of a vehicle involved in a head-on collision on Thomas Mitchell Drive near Muswellbrook on 16 December 2020. The driver of the other vehicle died in the crash, and one of the applicant's passengers suffered grievous bodily harm. The road was a two-lane sealed rural road with a double continuous centreline.

The applicant was tried by a judge sitting alone (without a jury) on two charges under the Crimes Act 1900 (NSW): dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. She was convicted on both counts in September 2025 and sentenced to an aggregate term of 3 years and 3 months imprisonment, with a non-parole period of 1 year and 9 months.

The central factual contest at trial was whether the head-on collision occurred because the applicant crossed the double centreline into the oncoming lane, or whether it was reasonably possible the collision occurred entirely within the applicant's own lane. The Crown's case rested substantially on circumstantial evidence from the collision scene, including gouge marks in the road surface, debris distribution, and fluid deposits.

Legal Issues

Whether the trial judge's decision to admit opinion evidence from Crime Scene Officer Mr Barker involved procedural unfairness
Whether Mr Barker lacked the specialised knowledge required to give expert opinion evidence under s 79 of the Evidence Act 1995 (NSW)
Whether Mr Barker's opinion was properly based on specialised knowledge
Whether the verdict of guilty was unreasonable or could not be supported having regard to the evidence
Whether the sentencing judge erred in assessing the objective seriousness of the offending as "moderate" rather than "low"
Whether the sentences imposed were manifestly excessive

Decision

Ground 1(b) and (c): Admissibility of Mr Barker's expert opinion

Before trial, defence counsel flagged an objection to Mr Barker giving opinion evidence on the collision's location. The trial judge allowed the Crown to lead further evidence of Mr Barker's expertise and reasoning before ruling on admissibility. Defence counsel cross-examined Mr Barker but did not challenge the sufficiency of his training or expertise, and did not press the original objection when given the opportunity to do so. After Mr Barker was excused, a belated reformulated objection was raised, but the judge offered to entertain an application to strike out the evidence and that offer was not taken up (at [22]-[27]).

The Court found no procedural unfairness in this sequence of events, noting that defence counsel had a full opportunity to challenge the foundations of Mr Barker's opinion and did not do so (at [28]). The three requirements for admissibility of expert opinion evidence identified in Lang v The Queen (2023) 278 CLR 323 were satisfied: the evidence showed an accepted field of expertise, Mr Barker identified the factual basis for his opinion, and he explained the reasoning connecting his expertise to that basis (at [32]-[35]). His opinion evidence was properly received under s 79 of the Evidence Act 1995 (at [35]).

Ground 3 (Conviction): Unreasonable verdict

The Crown's case was circumstantial, relying on gouge marks at positions G and H in the south-east bound lane, the concentration of collision debris around those marks, and the pattern of fluid deposits on the road surface. The defence expert offered a competing hypothesis that the collision may have occurred with the other driver straddling the centreline, but that hypothesis discounted the gouge marks entirely and rested solely on the fluid evidence (at [56]).

The Court conducted its own independent assessment of all the evidence, applying the test in M v The Queen (1994) 181 CLR 487. It concluded that it was open to the trial judge to be satisfied beyond reasonable doubt that the applicant drove across the centreline into the south-east bound lane and was guilty of both offences, and that no reasonable doubt arose about the verdicts (at [60]).

Sentence Ground 1: Objective seriousness

The applicant argued that because the evidence was consistent with only a brief transgression across the centreline immediately before impact, the offending should have been assessed as falling in the "low range" rather than "moderate." The Court rejected the proposition that a momentary crossing of the centreline is inherently less serious than a prolonged one: if anything, a brief incursion into oncoming traffic just as another vehicle arrives allows no time for evasion and may generate very great danger (at [66]).

The Court also confirmed that assigning a label such as "moderate" or "low" to the objective seriousness of offending is not itself an error, provided all circumstances bearing on objective gravity have been taken into account, as they were here (at [67]).

Sentence Ground 3: Manifest excess

Taking into account the applicant's age (20 at the time), her Aboriginal background and difficult upbringing, her mental health conditions, the sentencing judge's findings on remorse and rehabilitation, her chronic pain from injuries sustained in the crash, and the delay in finalising the proceedings, the Court found the sentences were within the reasonable range of the sentencing discretion. The non-parole period of approximately 54 per cent of the aggregate head sentence represented a substantial departure from the statutory norm in the applicant's favour (at [75]). The sentences were not manifestly excessive (at [76]).

Orders Made

Leave to appeal against conviction and sentence granted
Appeal against conviction dismissed
Appeal against sentence dismissed

Key Takeaways

A Crime Scene Officer with tertiary forensic science qualifications and attendance at 20 to 25 road crash scenes was found to possess sufficient specialised knowledge to give opinion evidence about the location of a collision point based on road surface gouge marks, under s 79 of the Evidence Act 1995 (NSW) (at [31]-[35]).
Where defence counsel at trial did not challenge an expert witness's qualifications or the sufficiency of the expert's reasoning in cross-examination, and did not avail of an express judicial offer to entertain a strike-out application, a later claim of procedural unfairness in the admission of that evidence will not be sustained (at [28]).
In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the test for an unreasonable verdict following a judge-alone trial is the same as for a jury trial under M v The Queen: the appellate court must make its own independent assessment of the whole of the evidence to determine whether it was open to find guilt beyond reasonable doubt (at [59]-[60]).
The court rejected the proposition that a brief or momentary crossing of a double centreline is inherently less serious, for sentencing purposes, than a prolonged one. A short incursion into oncoming traffic that leaves no opportunity for evasion may itself give rise to very great danger (at [66]).
Labelling the objective seriousness of offending as "moderate" or "low" is not an error in itself. Error arises only where the sentencing court fails to take all relevant circumstances of objective gravity into account, not where another label might have been selected (at [67]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Cripps v R (s 52A guideline judgment) [2026] NSWCCA 144
- Daher v R [2026] NSWCCA 26
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343