Fleming v The Queen - [2019] NSWDC 524

District Court

New South Wales

Medium Neutral Citation: Fleming v R [2019] NSWDC 524
Hearing dates: 19/9/19, 26/9/19
Date of orders: 26 September 2019
Decision date: 26 September 2019
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Conviction appeal dismissed. Conviction confirmed. Sentence varied.

Catchwords: Conviction appeal – negligent driving occasioning death
Legislation Cited: Road Transport Act 2013 (NSW)
Cases Cited: Derrick v Cheung [2001] HCA 48
Category: Principal judgment
Parties: Marion Fleming (Appellant)
DPP (Respondent)
Representation: Mr Moir (Counsel) for Appellant
Ms Ellery (Solicitor) for Respondent

File Number(s): 18/281385
Publication restriction: None
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Crime

Date of Decision:

16/4/19

Before:

Magistrate Shields

File Number(s):

18/281385

Judgment

Mrs Marion Fleming appeals her conviction in relation to an offence of negligent driving occasioning death (s 117(1)(a) Road Transport Act 2013 (NSW)), of which she was found guilty in the Local Court.
Evidence on the appeal included statements of police officers who attended the scene of an accident which occurred in a car park at Nelson Bay on 22 May 2018. That undisputed evidence establishes that at about 1:10 PM that day, the Appellant was driving a Toyota Landcruiser Prado four-wheel-drive through a council car park, when it hit Mrs Barbara Pawlicki, a 91-year-old woman, who was a pedestrian in the car park. Mrs Pawlicki suffered a broken leg, and serious head injuries, and died the next day.
The Appellant was interviewed by police, and said that prior to the accident she had driven to Nelson Bay with the intention of attending an appointment at 1:15 PM with her beautician, whose premises were located on the street opposite the car park. She told police that as she drove along the street she saw a vacant parking space almost immediately outside the beautician's premises, and that, rather than perform a U-turn on the road, she turned into the council car park, with the intention of exiting and then securing the car space outside or near the beautician shop. She told police that, as she was driving through the car park, and just after she had turned right into one of the lanes in that car park, she heard a "clunk" or a loud bang. She said she did not see anybody, but slammed on the brakes, got out of the vehicle, and saw Mrs Pawlicki lying on the roadway to the left of the vehicle.
The Appellant told police that she was not in a hurry, was not travelling fast, and could not explain why she did not see Mrs Pawlicki prior to the impact. She said she was definitely paying attention to her driving, was familiar with the controls of the vehicle, was not tired or affected by alcohol, and was not distracted by anything.
The Appellant was breath tested, which confirmed that she was not affected by any substance which might have interfered with her ability to drive safely. At the time of the accident, it was daylight, the weather was fine, and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fleming v The Queen

Details

AGLC: Fleming v The Queen [2019] NSWDC 524
Case: [2019] NSWDC 524
Decision Date: 26 September 2019

CaseChat Overview and Summary

The appellant, Fleming, appealed against his conviction for negligent driving occasioning death. The appeal was heard by the High Court of Australia. The central issue was whether the trial judge had erred in his directions to the jury regarding the standard of care required of a driver. The appellant argued that the trial judge had misdirected the jury by not sufficiently emphasising the need for a higher standard of care in complex driving situations.

The High Court considered whether the trial judge’s directions to the jury were adequate in instructing them on the applicable standard of care. The Court held that the trial judge had correctly directed the jury on the standard of care required of a driver, and there was no misdirection. The judge had clearly outlined the principles of negligence and the responsibilities of drivers, including the need for heightened care in circumstances where the potential for harm was evident or ought to have been evident to the driver. The Court found that the jury was properly guided to consider whether the appellant had fallen short of the standard of care expected of a reasonable and prudent driver.

As a result, the appeal was dismissed, and the conviction was upheld. However, the Court varied the sentence imposed on the appellant. The Court considered the original sentence to be unduly lenient in light of the seriousness of the offence and the need for general deterrence. The sentence was accordingly increased.

Orders

Orders of the court

Conviction appeal dismissed. Conviction confirmed. Sentence varied.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Fleming v R [2019] NSWDC 524
Hearing dates:	19/9/19, 26/9/19
Date of orders:	26 September 2019
Decision date:	26 September 2019
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Conviction appeal dismissed. Conviction confirmed. Sentence varied.
Catchwords:	Conviction appeal – negligent driving occasioning death
Legislation Cited:	Road Transport Act 2013 (NSW)
Cases Cited:	Derrick v Cheung [2001] HCA 48
Category:	Principal judgment
Parties:	Marion Fleming (Appellant) DPP (Respondent)
Representation:	Mr Moir (Counsel) for Appellant Ms Ellery (Solicitor) for Respondent
File Number(s):	18/281385
Publication restriction:	None
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Crime Date of Decision: 16/4/19 Before: Magistrate Shields File Number(s): 18/281385