Kelly v The King

[2024] NSWCCA 101

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Kelly v R [2024] NSWCCA 101

Hearing dates:

8 May 2024; 3 June 2024

Date of orders:

17 June 2024

Decision date:

17 June 2024

Before:

Bell CJ
Hamill J
Yehia J

Decision:

(1) Dismiss the appeal.

(2) Confirm the orders of the District Court.

Catchwords:

CRIMINAL APPEALS – District Court convicting of summary or back up offence after trial – appeal under ss 5AD and 5AA Criminal Appeal Act – appeal in strict sense – where error of law must be established – amended grounds of appeal – where appellant convicted of negligent driving occasioning death – appellant a police officer involved in pursuit of motorbike – whether judge erred in failing to determine whether she took into account course of driving – where judge referred to earlier driving but found negligence at the time of the collision – no substance to ground of appeal – whether judge erred in finding negligence where there was no evidence that appellant failed to keep a safe distance – ample evidence to justify finding – whether primary judge took into account an irrelevant consideration – police safe driving policy – appellant’s knowledge of driving in breach of part of policy and pursuit guidelines – whether judge did not refer to other breaches of the policy – whether judge failed to provide adequate reasons – judgment brief but provided amply adequate reasons

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 8(1)

Criminal Appeal Act 1912 (NSW), ss 5AA, 5AA(4), 5AA(7), 5AD, 5AD(1), 5AD(3)

Criminal Procedure Act1986 (NSW), ss 165-168

Road Rules 2014 (NSW), regs 287, 305

Road Transport Act 2013 (NSW), ss 117, 117(3)

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301

Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; (2008) 188 A Crim R 82

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288

GS v R;Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618; [2022] NSWCCA 65

HD Projects Pty Ltd v SafeWork NSW [2022] NSWCCA 212

Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95

Parker v R [2023] NSWCCA 234

Poletti Corporation Pty Ltd v SafeWork NSW [2020] NSWCCA 243

Prineas v R [2018] NSWCCA 221

The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37

Category:

Principal judgment

Parties:

Matthew James Kelly (Appellant)
Rex (Respondent)

Representation:

Counsel:
J Glissan KC and D Nagle (Appellant)
S Lind (Respondent)

Solicitors:
Walter Madden Jenkins Solicitors (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2020/00295559

Publication restriction:

This judgment has been redacted to comply with continuing non-publication orders relating to the New South Wales Police Force Safe Driving Policy Version 9.2 and Field Training Instructor Driver Development Court Manual Version 8.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

05 April 2023

Before:

Judge P Hock

File Number(s):

2020/00295559

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 5 April 2023 Matthew Kelly, a sergeant in the New South Wales Police Force, was convicted of negligent driving occasioning the death of Jack Roberts. The case was dealt with pursuant to the procedures in ss 166-168 of the Criminal Procedure Act 1986 (NSW), after the appellant was found not guilty by a jury at his trial for the offences of manslaughter and (in the alternative) dangerous driving causing death. The appellant was driving in a marked police vehicle, a Kia Sorento, when a motorbike or trail bike ridden by Mr Roberts came to his attention. The appellant followed the motorbike and, after the two vehicles travelled around 10 kilometres, each took a corner into the Blue Haven Way on the Central Coast south of Newcastle. Around 40 metres from the corner, the motorbike came into collision with the police car. Mr Roberts was killed.

Judge Hock found the appellant guilty of negligent driving on the basis that he failed to keep a safe distance from the motorbike and failed to keep a proper lookout. Sergeant Kelly was placed on a one-year community correction order.

Sergeant Kelly appealed against his conviction on four amended grounds:

(1) The Court erred in failing to determine when considering the test of negligence whether the conduct of the accused extended to all his interactions with the deceased or was limited to the immediate period prior to the collision between the Kia Sorento and the trail bike.

(2) The Court erred in finding that the accused drove too close to the deceased when there was no evidence of that fact at the time of the collision.

(3) The Court erred by having regard to an irrelevant consideration at [66]-[67] of the judgment that the accused was aware of the Safe Driving Policy prohibiting [redacted] in circumstances where there was no express finding that the accused ever [redacted] with the vehicle being driven by the deceased.

(4) The Court erred in failing to give adequate reasons regarding the reasonableness of the accused’s manner of driving.

The Court, dismissing the appeal and confirming the orders of the District Court, held:

As to ground 1

There was no legal error demonstrated and no substance to this ground of appeal. The pursuit of the motorbike represented a continuum, and the first part of the interaction could not be quarantined or disregarded in assessing whether, at the relevant moment, the appellant drove his vehicle negligently. The finding of negligence was clearly based on the appellant’s driving at the time of, or immediately before, the collision.

Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 distinguished.

As to ground 2

On all of the evidence it was open to Judge Hock to conclude that the appellant was negligent in that he failed to maintain a safe distance from the motorbike and failed to keep a proper lookout. There was an ample body of evidence to reach those conclusions including eyewitness accounts, video footage, reconstructions and the appellant’s own versions of events. The way in which the motorbike was being ridden required a reasonable and prudent driver to maintain a safe distance. There was evidence upon which Judge Hock was entitled to conclude that the appellant failed to do so.

As to ground 3

The appellant’s knowledge of the Safe Driving Policy and pursuit protocols was not an irrelevant consideration. His stated [redacted], and his knowledge that this was contrary to pursuit guidelines, was relevant to the finding that he was driving too close to the motorbike and to the question of negligence. This was particularly so in circumstances where the appellant sought to rely on the exemption for police vehicles from compliance with the Road Rules and (perhaps “faintly”) on a defence of honest and reasonable mistake.

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 applied. The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 considered.

As to ground 4

A duty to provide adequate reasons does not equate to a requirement that a decision maker provide a lengthy exposition of the law and survey all of the evidence and submissions. Her Honour’s finding (beyond reasonable doubt) that the appellant’s driving fell short of that expected of the reasonable and prudent driver was sufficient to satisfy any obligation she had to provide reasons on the issue of “reasonableness”. Considered fairly and read as a whole, and considering the issues before the District Court, Judge Hock provided amply sufficient reasons for concluding that the appellant was guilty of the offence of negligent driving occasioning death.

The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 considered and applied. Prineas v R [2018] NSWCCA 221; Parker v R [2023] NSWCCA 234; Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; (2008) 188 A Crim R 82 cited.

JUDGMENT

1. THE COURT: Matthew James Kelly appeals pursuant to s 5AD of the Criminal Appeal Act 1912 (NSW) against his conviction in the District Court on 5 April 2023 in relation to the summary offence of negligent driving occasioning death. [1]

   1. Road Transport Act 2013 (NSW), s 117.

2. The appellant stood trial before Judge Hock and a jury between 28 February 2023 and 24 March 2023 on an indictment alleging one count of manslaughter and an alternative count of dangerous driving causing death. The jury retired to consider its verdict at 12:37pm on 23 March 2023 and returned with verdicts of not guilty to both charges at 3:08pm the next day.

3. The negligent driving offence was a “back up offence” included on a certificate under s 166 of the Criminal Procedure Act1986 (NSW) and was dealt with on 4 April 2023 pursuant to the procedures in s 168 of the Criminal Procedure Act. The matter was determined by reference to the evidence adduced at the trial and the parties relied on written submissions and brief oral submissions. Judge Hock delivered judgment the following day (5 April 2023). Mr Kelly was sentenced on 23 June 2023 and was placed on a one-year community correction order pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which commenced on the day it was imposed.

4. A notice of appeal was filed on 5 March 2024 and raised three grounds of appeal. Written submissions were filed by each party and the matter was listed to be heard on 8 May 2024. The respondent’s written submissions referred to authorities relevant to the nature of the Court’s jurisdiction under s 5AD of the Criminal Appeal Act and asserted that the appellant’s grounds and submissions ventured beyond the limited avenue of appeal provided by s 5AD. By email sent the day before the hearing, the Court raised the jurisdictional issue with the parties and sought assistance as to the nature of an appeal under ss 5AD and 5AA of the Criminal Appeal Act. At the commencement of the hearing on 8 May 2024, the appellant sought an adjournment to consider the issue and, if necessary, to amend the grounds of appeal and file new written submissions. The Court acceded to that application, a timetable was set, and the matter was adjourned until 3 June 2024.

5. The appellant abandoned each of the grounds of appeal originally notified and filed amended grounds in the following terms:

1. The Court erred in failing to determine when considering the test of negligence whether the conduct of the accused extended to all his interactions with the deceased or was limited to the immediate period prior to the collision between the Kia Sorento and the trail bike.

2. The Court erred in finding that the accused drove too close to the deceased when there was no evidence of that fact at the time of the collision.

3. The Court erred by having regard to an irrelevant consideration at [66]-[67] of the judgment that the accused was aware of the Safe Driving Policy prohibiting police vehicles [redacted] in circumstances where there was no express finding that the accused ever [redacted] with the vehicle being driven by the deceased.

4. The Court erred in failing to give adequate reasons regarding the reasonableness of the accused’s manner of driving.

The nature of the appeal

6. Section 5AD(1) of the Criminal Appeal Act allows for an appeal to this Court against a conviction for a summary offence that was dealt with by the District or Supreme Court pursuant to the procedures provided in ss 165-168 of the Criminal Procedure Act. It provides that “section 5AA applies to and in respect of a person” so convicted. Section 5AD(3) allows for the appeal to be determined by a single judge or the full court. It is not necessary to consider that sub-section further because there was no controversy that it was appropriate for the full court to hear and determine Mr Kelly’s appeal.

7. Section 5AA provides for appeals against convictions, and certain other orders, entered by the Supreme Court and the District Court when exercising summary jurisdiction. Sub-section (4) provides:

(4) The Court of Criminal Appeal in proceedings before it on an appeal under this section may--

(a) confirm the determination made by the Supreme Court in its summary jurisdiction, or

(b) order that the determination made by the Supreme Court in its summary jurisdiction be vacated and--

(i) make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal, or

(ii) order a new trial in such manner as the Court of Criminal Appeal thinks fit.

8. A substantial body of case law has held that an appeal under s 5AA (and therefore s 5AD) is “an appeal in the strict sense” and that an appellant can “only succeed by establishing that the trial judge committed an error of law or applied the wrong principle in [their] fact-finding exercise”: see Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [95]-[96] and the earlier cases collected there, Poletti Corporation Pty Ltd v SafeWork NSW [2020] NSWCCA 243, Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 at [12], Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288 at [51]-[52], GS v R;Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618; [2022] NSWCCA 65 (“GS v R”) at [79]-[80] and Parker v R [2023] NSWCCA 234 at [14], but contrast the observations of Macfarlan JA in HD Projects Pty Ltd v SafeWork NSW [2022] NSWCCA 212 at [4]-[7]. In GS v R, Payne JA said “the task is quite different than that engaged in by this Court when considering an unreasonable verdict”.

9. During the adjournment application on 8 May 2024 and in light of the way in which the notice of appeal was then formulated, Kings Counsel for the appellant was asked whether there would be a challenge to the foregoing authorities and whether the case may require the constitution of a five member bench. Mr Glissan indicated the matter would be considered. No such challenge was made and a ground in the original notice of appeal asserting that the verdict was “unsafe and unsatisfactory” (that is, unreasonable and unable to be supported) [2] was not pressed.

   2. See Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [10]-[12].

10. Accordingly, we proceed on the basis of the authorities which hold that the appellant must establish an error of law or a misapplication of principle. Each of the amended grounds of appeal raise that kind of error and would, if established, engage the jurisdiction of the Court to vacate the decision made by Judge Hock and either “make any determination the [District] Court could have made” or remit the case for a new “trial”. [3]

An overview of the factual circumstances, the evidence and the case put by the parties at first instance

3. Criminal Appeal Act 1912 (NSW), s 5AA(4) and (7) and s 5AD.

11. At around 2:20am on 16 April 2020 the appellant, then a sergeant in the New South Wales Police Force, was driving a marked police car vehicle (CU 58 RH) near Warnervale on the Central Coast, north of Sydney. The vehicle was a Kia Sorento, usually described in the evidence and submissions by its designation “TL-14”.

12. A motorcycle or trail bike ridden by Jack Roberts came to the appellant’s attention as it was travelling on Sparks Road in the direction of the exit ramp on the Pacific Motorway or M1. The appellant followed the motorcycle on to the Pacific Motorway for one or two kilometres when both vehicles left the motorway at the Doyalson Link Road exit. The pursuit continued for a further (approximately) six kilometres when the motorcycle, and in turn TL-14, turned on to Blue Haven Way. The total distance of the “pursuit” was estimated to be about 10 kilometres based on odometer readings.

13. Shortly after the vehicles turned on to Blue Haven Way, the motorcycle came into contact or collision with the front of TL-14. While there were issues raised as to “causation”, those issues were not pursued on the hearing of the appeal. Mr Roberts died as a result of the collision.

The evidence

14. The evidence fell generally into five categories.

1. First, there were accounts of the incident provided by the appellant. These included a written response dated 28 April 2020 to a formal demand under regulation 287 of the Road Rules 2014 (NSW) and a lengthy recorded interview (ERISP) conducted on 21 May 2020.

2. Secondly, a number of eyewitnesses gave evidence of their observations of the two vehicles in various locations from the time they were travelling on the Pacific Motorway until a very short time before the collision occurred. This included some roadworkers who were undertaking night works quite a short distance from the site of the collision.

3. Thirdly, there was CCTV or “dashcam” footage. The first was taken a very short time before the collision from a camera mounted in one of the vehicles associated with the roadworkers mentioned in the preceding paragraph. The second was a recording made by an investigating police officer who drove through the intersection at night attempting to follow the path taken by the appellant leading up to the collision.

4. Fourthly, expert traffic investigators were called by both parties. The experts attempted to reconstruct the events and provided diagrams, charts and opinions based on the accounts given by the witnesses and the physical evidence at the scene.

5. Fifthly, there was evidence of the investigating police including their observations of the scene and the tender of photographs, maps and charts. One officer, Sergeant Davies, gave evidence of the appellant’s driving qualifications (he was a gold classified driver) and parts of the NSW Police Force’s “Safe Driving Policy” and the standard procedures concerning police pursuits.

15. We will return to refer to parts of the evidence in more detail in dealing with the grounds of appeal but, in view of the limited scope of those grounds, it is not necessary to summarise it at any length. However, to place the grounds of appeal in context, it is helpful to summarise briefly the case of each party as it was put to Judge Hock.

The case of the parties at first instance

16. The prosecution case was that the appellant failed to keep a safe distance from Mr Roberts. It relied on what it described as the whole “course of driving” from the time Mr Kelly elected to follow or pursue the trail bike. It submitted the court could consider the driving on Doyalson Link Road before the appellant turned on to Blue Haven Way. It said, “the manner of driving on Blue Haven Way was in all the circumstances negligent”. It relied on the appellant’s stated intentions as well as the evidence of the eyewitnesses and dashcam footage to establish that the appellant did not keep a safe distance.

17. The appellant submitted that none of the (three) elements were established beyond reasonable doubt “[or even on the balance of probabilities]”. He submitted the inferences the prosecution sought to draw were “unavailable and contrary to the objective evidence”. He relied on the relatively low speed at which he was travelling and that he was travelling “in a straight line up Blue Haven Way and under the speed limit”. He submitted the trail bike overtook TL-14 and collected vegetation on the passenger side verge of the road and then veered suddenly in front of his car. He submitted he had “no time to react”. He relied on the lack of damage to the bike to support an inference that he did not ram or nudge the bike (which was, at some stage, his intention). As to that intention, he submitted “intent alone does not constitute an offence” and that he was patently honest in the ERISP and “had not yet formed the intention to contact the motorcycle and did not believe that he did so.” It was submitted “the jury clearly accepted that version”.

16. The appellant submitted that the reason the vehicles collided was “not related to Sergeant Kelly’s cautious, slow and linear driving on Blue Haven Way, but to the fact that the motorcycle overtook him on the wrong side of his car without warning and at much too close a distance”.

17. Submissions were also made as to causation although this issue does not arise on the appeal as it was ultimately framed.

18. The appellant submitted that regulation 305 of the Road Rules provided “an exemption from compliance with the road rules” although it did not provide “a defence per se to the back-up charge”. For the sake of clarity, regulation 305 provides:

305 Exemption for drivers of police vehicles

(1) A provision of these Rules does not apply to the driver of a police vehicle if--

(a) in the circumstances--

(i) the driver is taking reasonable care, and

(ii) it is reasonable that the provision should not apply, and

(b) if the vehicle is a motor vehicle that is moving--the vehicle is displaying a blue or red flashing light or sounding an alarm.

Note--

Motor vehicle and police vehicle are defined in the Dictionary.

(2) Subrule (1)(b) does not apply to the driver if, in the circumstances, it is reasonable--

(a) not to display the light or sound the alarm, or

(b) for the vehicle not to be fitted or equipped with a blue or red flashing light or an alarm.

21. In the brief oral submissions, the Prosecutor emphasised that “proof of a deliberate collision is not necessary to establish negligent driving”. The appellant conceded that “even if [it was not accepted] beyond reasonable doubt that the [appellant] “deliberately collided with the motorbike, that he could still be found guilty of negligence”. He accepted that nothing in the jury verdict would prevent a finding of negligence, but emphasised there had to be “clear evidence of negligence established beyond reasonable doubt”.

Ground 1: The Court erred in failing to determine when considering the test of negligence whether the conduct of the accused extended to all his interactions with the deceased or was limited to the immediate period prior to the collision between the Kia Sorento and the trail bike.

22. The submissions made under this ground were somewhat disconnected from the terms of the ground itself. It was submitted that “there was no fact open to the trial judge to find that the accused was driving too close to the motorcycle”. That contention was encompassed, more directly, by ground 2 which will be dealt with in more detail below.

23. In the submissions under this ground, reliance was placed on the High Court’s decision in Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 (“Derrick v Cheung”). The Court was taken to the following passage at [13]:

“There was no basis upon which any finding of negligence on the part of the appellant could be made. That the facts of the case are tragic, and the collision a parent’s worst nightmare, as the trial judge accurately described them, did not relieve his Honour of his obligation to determine the issues according to law: in this case, by not finding an absence of care in circumstances in which reasonable care was, as Davies AJA correctly held, in fact being exercised. Even if the inference which the trial judge drew, that if the appellant’s speed had been slower by a few kilometres per hour she would have been able to avoid the collision, was more than mere speculation, it is still not an inference upon which a finding of negligence could be based. Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care. To offer, as the majority in the Court of Appeal did, its consolation that the appellant does not bear any moral, as distinct from legal, responsibility for what occurred is to obscure that issue.”

24. Derrick v Cheung involved a child of about 21 months suddenly darting out from between parked cars into the path of the appellant’s motor car. The appellant braked, the car skidded and collided with the child. She was estimated to have been driving at around 40 to 50 km/h, “well within the speed limit”, and there was nothing to suggest she reacted slowly in applying the brakes.

25. The circumstances of Derrick v Cheung were very different to those of the present case. For one thing, and critically, the driver in that case did not know the child was there until she emerged from between the parked cars. Further, nothing in the High Court’s decision speaks to the issue raised by this ground.

26. There is no substance to this ground of appeal.

27. Judge Hock described briefly the entire interaction between the appellant and the deceased and their respective manners of driving from the time the appellant commenced to follow the deceased on the motorway, through the time they were driving along the Doyalson Link Road, up until the point when the vehicles came into collision on the exit at Blue Haven Way. Her Honour referred to observations of the witnesses who saw them during that time. This narrative provided the context in which the accident occurred and the factual background to what the Judge was called upon to decide. It explained, amongst other things, why the appellant was following the trail bike, a matter which formed an important part of his case and his defence of the allegation of negligence. This was the way in which the Prosecutor relied on the evidence.

28. A failure to refer to the earlier part of the pursuit would have been very odd. It was not suggested at first instance that this part of the interaction was not relevant, and such a suggestion would have been bordering on absurd. The events leading to Mr Roberts’ death represented a continuum and, again, it cannot be accepted that the first part of the interaction should be quarantined or disregarded in assessing whether, at the relevant moment, the appellant drove his vehicle negligently.

29. It is true that Judge Hock referred to the prosecution as having put “its case against the accused on the basis that it was ‘one course of driving’ from the moment that the accused decided to pursue, with a view to engaging with, the bike ridden by Mr Roberts.” It is also correct that her Honour neither accepted nor rejected that “course of driving” theory of the case. However, it is abundantly clear that the finding of negligence was based on the driving at the time of, or immediately before, the collision. This is demonstrated by reference to her Honour’s finding at paragraph [38] of the judgment where Judge Hock concluded (emphasis added):

“In my view the accused drove TL-14 too close to the motor bike when they both turned into Blue Haven Way and he failed to keep a proper lookout at that time.”

30. This finding followed the observation at [37] that “[a] reasonable prudent driver would have kept a safe distance from the motor bike at all times”, and preceded a reference to the appellant’s admissions as to his intentions at [39] and a statement at [40] that “a reasonable and prudent driver would have foreseen that at night time in the circumstances previously outlined that following so closely in TL-14 created a risk which was real, obvious and serious.”

31. No legal error is demonstrated under ground 1 and that ground must be rejected.

Ground 2: The Court erred in finding that the accused drove too close to the deceased when there was no evidence of that fact at the time of the collision.

32. The thrust of the argument under this ground can be discerned from paragraphs [20]-[22] of the appellant’s written submissions:

“20. At [38] of the Judgment the Court found:

‘In my view the accused drove TL-14 too close to the motor bike when they both turned into Blue Haven Way and he failed to keep a proper lookout at that time.’

21. There was no evidence that the accused was close to the motor cycle upon entering Blue Haven Way.

22. The only evidence before the Court regarding entering into Blue Haven Way was that the accused entered into Blue Haven Way on the wrong side of the road.” (emphasis added)

33. The written submissions go on to contend that there was “no evidence” that the appellant failed to keep a proper lookout even though that assertion forms no part of the ground of appeal as articulated.

34. The respondent made the appropriate and obvious concession that it is an error of law to make a finding of fact upon which there is no evidence. However, she submitted, correctly, that to succeed on such ground the appellant must establish that there is “no probative evidence at all, no matter how slight, to justify the decision” and that this ground cannot be sustained merely by the appellant establishing that an impugned finding of fact is against the weight of the evidence. While these submissions are correct, the real force in the respondent’s answer to this ground lies in her careful analysis of the evidence.

35. For the purpose of the argument, we have put to one side the evidence of Christopher Smith and Dale Clenton of their observations as the cars proceeded from the motorway on to the Doyalson Link Road. Those observations were to the effect that TL-14 was very close, or “very very close” to the motorcycle, and that it appeared that TL-14 may have nudged the back wheel of the motorcycle. We have also ignored, again for the sake of the argument, the appellant’s account in the ERISP that he may have been within a metre or two of the motorcycle at that earlier stage of the incident.

36. We will focus on the evidence of the witnesses who observed the two vehicles at or near the point of collision, a portion of the dashcam footage, and the appellant’s own version of events.

The eyewitnesses

37. Dale Clenton, who was driving home from work, said he saw the motorcycle drive into Blue Haven Way and the police car went “in behind it … into Blue Haven Way”. When asked where the police car was the last time he saw it, Mr Clenton said “[i]t was within metres of the motorbike at that point.”

38. Tyson Tenari was managing the work crew on Doyalson Link Road a short distance from the Blue Haven Way corner. When the two vehicles went past the work crew they were “probably within 10 metres of each other”. When asked about the way the vehicles took the corner he said:

“They were in that right slip lane to turn into Blue Haven Way, so the white vehicle was still fairly close to the motorbike.”

39. Rebecca McFadden was working with the road crew. She was asked how close the vehicles were to each other as they passed the “50” sign and entered the corner. She said, “I couldn’t really tell because it was only from the side of my eye that I could really see what was happening.” However, when she was asked about the relative positions, she testified:

“It could’ve been side by side almost. Almost - they were (sic) almost went around at the same time from what I could make out.”

Exhibits 12 and 16

40. Exhibits 12 and 16 comprised video footage taken from a camera mounted on the dashboard of one of the work vehicles located a short distance from the intersection of Doyalson Link Road and Blue Haven Way. The footage in exhibit 12 was “mirrored”, so that the vehicle from which the video was taken appears to be driving on the incorrect (right) side of the roadway.

41. Exhibit 16 depicts the motorbike and the appellant’s police car driving past the camera. The motorbike goes off the screen to the right at counter 1:46:02. The appellant’s car, following close behind, goes off the screen to the right at counter 1:47:01.

42. That is, the car was about one second behind the bike as they approached the intersection.

Exhibits 5 and MK 25-MK 29

43. Exhibit 5 was a video made on 22 April 2020 by investigating police. It was recorded at night, was taken form a camera mounted on the dashboard of a police vehicle and followed the route taken by the appellant and the deceased.

44. At about counter 15:50 the camera approaches the intersection where there is a right-hand turn from Doyalson Link Road on to Blue Haven Way. At counter 16:00 (9:04pm according to the officer’s narration) the camera enters the designated right-hand turn slip lane. The vehicle slows, takes the right-hand turn and reaches the location of the collision by counter 16:13. By reference to other evidence in the case, the collision site can be identified as being after a 50 km/h speed sign (passed at counter 16:12) and before the end of a metal guard rail on the left of the road (reached at counter 16:14).

45. Immediately before the 50 km/h speed sign there is scrub or foliage protruding out from under the metal guard rail. The scrub was relevant because the physical evidence included similar vegetation being located on the motorcycle. The experts and parties agreed this vegetation was picked up when the motorbike went to the extreme left of the road as or after it took the corner.

46. Exhibits MK 25 to MK 29 are diagrams created by Dr George Rechnitzer, a traffic accident reconstruction expert called by the appellant at the trial. The diagrams, or at least the paths taken by the two vehicles, are based on the account provided by the appellant in the ERISP.

47. For present purposes these exhibits are relevant because they provide scaled distances from the corner to the point of the collision. The distance between the corner and the collision was 40 to 45 metres, and the vegetation on the left-hand verge was around 30 to 35 metres from the corner.

The appellant’s versions

48. Between questions 77 and 91 of the ERISP, the appellant provided the following version of the accident. This version was essentially provided in narrative form and we have excluded the questions which are largely the investigating officer saying “yeah” or “yes”.

“77 After passing the rail overpass I saw ahead to a well-lit area where Blue Haven Way is.

78 As I got closer I saw that this was another roadworks team set up with trucks and lighting.

79 There were no approaching vehicles and the rider maintained his position on the incorrect side of the road so ---

80 --- the rider rode through the roadworks on the incorrect side of the road --

81 --- entering Blue Haven Way across the incorrect side of the road.

82 And I followed on the correct side of the roadway ---

83 --- and I followed with the intention of engaging that vehicle and stopping it ---

84 --- by causing obstruction or preventing passage of that vehicle.

85 Not only because of the offences committed because it was a significant and imminent risk to public safety.

86 So the bike moved from the right across my path to the left, left-hand side of the road.

87 I recall it being in the vicinity of the front nearside headlight. I could see the whole bike.

88 And then I recall being drawn to the movement of the bike at the right-hand side of the vehicle.

89 And I had no recollection of seeing the rider at any time between those points. And I believed he had dumped the bike, thrown it across my path or it had moved from one point to another and he, um, had run. Though my recollection is not good. I estimated a speed of not more than thirty kilometres per hour, if that.

90 I was looking around as I brought the car to a stop, looking for the rider.

91 When I got out of the car I was shocked to say the least. He was lying on his back between the front and rear wheels yelling something I don’t recall what.

92. And with his left arm in a striking motion or hitting the side of the car.”

49. Later in the interview, the appellant was asked about his intention to collide with the motorbike and the following exchange was recorded:

“Q639   Did you, um, attempt to collide with the vehicle?

A    On Blue Haven Way?

Q640   At any point.

A    My intention was on Blue Haven Way at a low speed, that I was going to effect a roadblock by engaging him, stopping him from going. So that means hitting his back wheel and causing that bike to stop. I didn’t think that I’d got to that point, but that was in my mind. And then I don’t even know if I did hit him. I know he’s hit the car because that number plate - -

Q641   Ah hmm.

A    - - - but as I said, I didn’t feel anything. I was steeling myself to do that for that purpose, but I don’t know if I did.

Q642   O.K.

A   I don’t know if, as I said, I don’t have any recollection of the bike passing in front of me.

Q643   Ah hmm.

A    Any movements or actions of him to indicate that, that was just my belief based on, sorry, that walk around.

Q644   Yeah.

A   And that he was there one second and ---

Q645   O.K.

A   --- not and the bike was amongst in the rest.

Q646   You said you, you were, you were considering, um, colliding with the rear wheel of the other vehicle - -

A   Yeah.

Q647   - - - with the vehicle you were driving. Did you move from that consideration to an active role in, in trying to do that?

A   That’s what I was preparing to do. So I didn’t say, O.K., I’m going to do it now, I was very close to him and I guess that was my intention under LEPRA, what used to be, you know, the old 357E, um, to stop a vehicle.

Q648   O.K. So it was you intention as you drove up behind the motorcycle for a collision to occur?

A    Yes, under that legislation, yeah.

Q649   O.K. And just going back to, um, the speed you were doing and so on, um, what did you, um believe would be the outcome of that collision?

A    Well, it was low speed, so I believed it would stop the cycle.

Q650   And what about the safety of the rider?

A   Well, yes, there is a possibility that he would be injured being on a motorcycle, you’re on the outside of the vehicle with no protection, but the intention to stop was for that purpose.” (emphasis added)

50. On 28 April 2020, that is 12 days after the collision and 3-4 weeks before the ERISP, the appellant provided the following written version in response to a formal demand under regulation 287 of the Road Rules:

“I was following the cycle as it travelled generally north along the Motorway Link Road toward the intersection with Blue Haven Way.

The cycle turned right into Blue Haven Way and I followed. The cycle slowed and moved to the far left of the road and I drew alongside.

The cycle accelerated and moved forward and across my path from left to right.

I didn’t feel, or become aware of any impact, however saw the cycle to my right without the rider. I believed he had dumped the bike and ran.

I stopped the car and getting out saw the bike on the opposite side of the road and whilst looking for the rider, noticed him beneath my car yelling something.

The car had pre-existing, recorded front damage from hitting a kangaroo in November(?) 2019. I saw the front number plate was bent, so I presume this was from contact with the rider or the cycle.” (emphasis added)

Was there any evidence from which the primary Judge could conclude that the appellant did not keep a safe distance?

51. The evidence set out above demonstrates that there was such evidence and that it was open to Judge Hock to conclude that the appellant was negligent in that he failed to maintain a safe distance from the motorbike.

52. The versions provided by the three eyewitnesses were not directed to the precise moment when the car and motorbike collided, but those observations related to the distance between the vehicles a very short time earlier. In terms of distance, their evidence related to observations as the vehicles rounded the corner which was only about 35 to 45 metres form the point of collision. In terms of time, it was about one or two seconds before the motorbike and car collided.

53. Added to that was the appellant’s own account which supported the evidence of Ms McFadden. She said the vehicles were “side by side almost” which was similar to the appellant’s account on 28 April 2020 that he “drew alongside” the motorbike, and his answer to Q647 of the ERISP that he was “very close to him”.

51. The manner in which the motorbike was being ridden gave rise to the need to maintain a safe distance. The appellant referred to Mr Roberts riding on the wrong side of the road as he passed the roadwork crew, and he said the motorbike also took the corner of Blue Haven Way on the wrong side of the road before crossing over to the correct side of the road in front of the appellant’s vehicle to reach the verge. That erratic driving took place a short distance (approximately 50 metres) from the collision. There was also evidence that the motorbike was on the wrong side of the road as it passed the road crew.

52. There was an ample body of evidence that supported Judge Hock’s finding that the appellant failed to keep a safe distance between the police car and the motorbike as they entered and drove on Blue Haven Way. This was simply not a case of there being “no evidence” which was what the appellant ultimately recognised was necessary to be established in order to find an available ground of appeal.

53. This ground of appeal must also be rejected.

Failure to keep a proper lookout

57. While not referred to in the ground of appeal, the appellant also argued that there was no evidence upon which Judge Hock could find that the appellant failed to keep a proper lookout.

58. Reference to the appellant’s version of evidence is sufficient to dispose of this argument. The appellant said in the ERISP that he did not see the motorbike after it “moved from the right across my path to the left” and that he did not see it again until he was “being drawn to the movement of the bike at the righthand side of the vehicle.” He said in response to the demand he was “not aware of any impact” but “saw the cycle to [his] right without the rider”. He said he “believed he had dumped the bike and ran”. Putting aside the unlikeliness of that version of the appellant’s belief, what is clear is that – on his own account – he lost sight of the motorbike in circumstances where he was driving close to a rider who was controlling the bike in an unpredictable manner.

59. Again, there was evidence upon which Judge Hock was entitled to make this factual finding. If a ground asserting the contrary was raised, it could not be sustained.

Ground 3: The Court erred by having regard to an irrelevant consideration at [66]-[67] of the judgment that the accused was aware of the Safe Driving Policy prohibiting police vehicles [redacted] in circumstances where there was no express finding that the accused ever [redacted] with the vehicle being driven by the deceased.

The submissions on appeal

60. The appellant submitted in writing that, in circumstances where Judge Hock

“… did not find that the accused [redacted] then the knowledge of the accused and the Safe Driver Policy leads to the inescapable conclusion that in finding that the accused did not have a reasonable belief regarding his manner of driving the Court had taken into account an irrelevant consideration”.

61. He submitted under the same ground that Judge Hock erred in finding that the accused “expressly acknowledged that by driving as he did there was a possibility that Mr Roberts would be injured” whereas the “the answer given by the accused related to what might happen if a collision occurred, not as a direct consequence of the manner in which he was driving.” From this it was submitted:

“In circumstances where the evidence did not establish the unreasonableness of the actions of the accused he was entitled to be acquitted.”

62. By reference to Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at 179, the respondent acknowledged that taking into account an irrelevant consideration constitutes an error of law. However, the respondent submitted that the knowledge of the Safe Driving Policy was not an irrelevant consideration:

“The appellant admitted to police that he [redacted] on Blue Haven Way. Importantly, in preparing to carry out this act, which the appellant knew was expressly prohibited by the policy, the appellant acknowledged he drove very close to the motorcycle. In assessing whether the appellant’s belief that it was safe to drive close to the motorcycle was reasonable, a relevant consideration was the appellant’s acknowledgement that he was driving close to the motorcycle in pursuance of a course of action prohibited by the policy.”

63. As to the second part of the submission made under ground 3 – that her Honour erred in categorising the appellant’s admission concerning the risk to the rider of the motorbike – the respondent submitted that this, if anything, was no more than an error of fact and not one amenable to the kind of appeal with which the Court is dealing.

Resolution of ground 3

64. As to the second aspect of the argument under this ground, and the asserted error in the categorisation of the appellant’s admission, we accept the respondent’s submission set out at [62]. The fact that this is properly categorised as an error of fact – if it is an error at all – no doubt explains why it was not raised as a distinct ground of appeal by the experienced lawyers who represent the appellant.

65. There is (at least) a doubt as to whether the defence of “honest and reasonable mistake” applies to an allegation of negligence: see The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 (“Lavender”). The Prosecutor raised this issue in written submissions at the hearing following the trial in the District Court and made express reference to the decision in Lavender. We will return to address that question generally because it also arises under the appellant’s fourth ground of appeal. However, it is unnecessary to resolve the issue in dealing with ground 3 because the respondent’s submissions must be accepted in any event. There was no legal error in Judge Hock’s approach.

66. Judge Hock did not base her finding of negligence on any breach of the Safe Driving Policy or the NSW Police pursuit guidelines. The evidence of the policy and guidelines was called at the trial by the investigating officer reading parts of the policy to the jury. [4] There was more than one breach, but her Honour referred to only one of them. For example, Judge Hock did not refer to the appellant’s failure to “call in” the pursuit to “VKG” (police radio), or to his message to the VKG operator after the collision that “we are just advising, there was no pursuit”. Nor was there reference to the evidence that TL-14 was a [redacted] or to the policy that the pursuing police should maintain a two second gap between the police vehicle and the pursued vehicle.

    4. Tcpt 13/3/23, pp 446-451.

67. The fact that Judge Hock did not find that the appellant carried out [redacted] did not make that intention irrelevant. It was highly probative evidence in considering the question of whether the appellant was keeping a safe distance at the time the vehicles collided. Related to that issue was the fact that the Safe Driving Policy included in its “pursuit guidelines” the following:

• “All vehicles involved in a pursuit will maintain a minimum two second gap”; and

• [redacted]

68. In circumstances where the appellant sought to rely on the exemption for police vehicles to comply with the Road Rules and (perhaps “faintly”) [5] on a defence of honest and reasonable mistake, the appellant’s knowledge of the policy and its terms was a relevant consideration. At paragraph 19 of the appellant’s written submissions to Judge Hock, it was conceded that “regulation 305 of the Road Rules 2014 does not provide a defence per se to the back-up charge”, but it was then submitted:

“… to the extent that breaches of the Road Rules are relied upon and/or pointed to by the Crown as supporting the contention that Sergeant Kelly’s driving was negligent, regulation 305 provides Sergeant Kelly with the relevant exemption.”

5. As it was described by Judge Hock in her judgment, based on the oral submissions reproduced below at [80].

69. Regulation 305 of the Road Rules is set out at [25] above but, at the risk of repetition, the regulation provides:

305 Exemption for drivers of police vehicles

(1) A provision of these Rules does not apply to the driver of a police vehicle if--

(a) in the circumstances--

(i) the driver is taking reasonable care, and

(ii) it is reasonable that the provision should not apply, and

(b) if the vehicle is a motor vehicle that is moving--the vehicle is displaying a blue or red flashing light or sounding an alarm.

Note--

Motor vehicle and police vehicle are defined in the Dictionary.

(2) Subrule (1)(b) does not apply to the driver if, in the circumstances, it is reasonable--

(a) not to display the light or sound the alarm, or

(b) for the vehicle not to be fitted or equipped with a blue or red flashing light or an alarm.

70. In circumstances where the appellant sought to rely on this provision, and in the context of his explanation for his conduct in the ERISP which included lengthy statements as to his motivations and experiences as a police officer, reference to the relevant Safe Driving Policy is not properly categorised as an irrelevant consideration.

71. This ground of appeal must also be rejected.

Ground 4: The Court erred in failing to give adequate reasons regarding the reasonableness of the accused’s manner of driving.

72. Before moving to the substance of ground 4, we note that paragraphs 42-44 of the appellant’s submissions (under ground 4) are in precisely the same terms as paragraphs 35-37 (under ground 3). In each instance, there is a dissonance between the submission and the ground itself and raises, at most, an error of fact in the categorisation of the appellant’s admissions. We have already rejected this submission for the reasons given at [68]-[69] above.

73. Under ground 4, the appellant submitted that Judge Hock failed to provide adequate reasons “regarding the reasonableness of the [appellant’s] manner of driving”. The appellant went on to cite cases concerning the proper test for negligent driving (Prineas v R [2018] NSWCCA 221) and “the test of reasonableness” (Parker v R [2023] NSWCCA 234).

74. Judge Hock set out relevant aspects of the law, the elements of the offence and the issues that arose in the case from paragraphs [3]-[16] of the judgment. Her Honour referred to the decision of Johnson J in Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; (2008) 188 A Crim R 82 (“DPP v Yeo”) at [27] and [29] to demonstrate what had to be established beyond reasonable doubt. The appellant does not suggest that her Honour’s succinct summary of the law and issues was wrong or inadequate.

75. Her Honour went on to set out relevant parts of the evidence at [20]-[34] before turning to a consideration of whether the evidence established the elements of the offence (putting aside causation) from [35]-[41].

76. The judgment was relatively brief, but the provision of adequate reasons does not equate to a requirement that a decision maker provide a lengthy exposition of the law and survey all of the evidence and submissions. What is required will turn on the circumstances of the case and the complexity of the issues. It is important for the Judge to identify the legal principles that have been applied, the issues between the parties, the factual findings made, and the evidentiary basis of such findings. Much will turn on the parties’ submissions and the true issues in dispute.

77. The appellant submitted that Judge Hock “failed to determine what a reasonable and prudent driver in the circumstances of the accused would have done.” This is not correct. Her Honour put it simply at [40]:

“A reasonable and prudent driver would have foreseen that at nighttime in the circumstances previously outlined that following so closely in TL-14 created a risk which was real, obvious and serious.”

78. By the stage of the judgment that this conclusion was reached, her Honour had referred to the relevant test for negligent driving, including reference to the reasonable and prudent driver, as articulated by Johnson J in DPP v Yeo at [27] and [29]:

“27 Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances. The distinction which may be drawn between driving negligently, driving in a manner dangerous to the public and driving of a kind which justifies a conviction for manslaughter is essentially a distinction in the degree of negligence appropriate to the offence, being a distinction in the degree of departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances: R v Buttsworth at 672.

…

29 The question is essentially whether the driver was exercising that degree of care which the ordinary prudent driver would exercise in all the circumstances, including the circumstances as set out in s 42(3): Simpson v Peat [1952] 2 QB 24.”

79. Her Honour set those passages out and had also referred to s 117(3) of the Road Transport Act 2013 (NSW) which provides:

(3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following--

(a) the nature, condition and use of the road on which the offence is alleged to have been committed,

(b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road,

(c) any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes).

80. As to the issue of reasonableness as it related to the appellant’s belief, the requirement to give reasons is to be considered by reference to the diffidence with which that issue was raised by the appellant. The transcript records the following exchange on 4 April 2022:

“HER HONOUR: … The only matter that your submissions don’t address, Mr Glissan, is the honest and reasonable mistake or belief.

GLISSAN: That’s correct.

HER HONOUR: Is that ---

GLISSAN: That’s deliberate.

HER HONOUR: So if I got that far I don’t need to address that?

GLISSAN: It’s something that has to be considered, your Honour, because of the way the Crown has put the material. Your Honour, how can I put it – the gravamen of this offence is whether or not there exists established beyond reasonable doubt negligence. I struggle, as a matter of logic, with the concept that you can have an honest and reasonable belief in the – performing a negligent act. In terms of the charge on the indictment it was a very clear issue that needed to be – that may have needed to be resolved had the jury gone so far, certainly, in relation to the second count.

In terms of negligence simpliciter the honest and reasonable belief arises to this extent, and your Honour will need to deal with it if your Honour does get so far, that it was reasonable for Sergeant Kelly at the time to be following the course which he took which was following the motorcycle, following it by making a lawful turn at a reasonable speed on the correct side of the road into Blue Haven Way, not exceeded the speed limit, not accelerating aggressively and keeping a proper lookout to try and identify the position of the motor cycle at all times. That satisfied the road rules.” (Emphasis added).

81. In Lavender, the High Court considered the defence of honest and reasonable mistake and its applicability in the case of manslaughter by gross negligence. Gleeson CJ, McHugh, Gummow and Hayne JJ said:

“57 The first issue concerns a point that was taken at trial by counsel for the respondent. In considering the issue, it is necessary to note the precise terms of counsel’s submission to the trial judge. Reference has earlier been made to the five elements of manslaughter identified by the judge. Counsel said: ‘I would invite your Honour to add, in relation to the manslaughter, a sixth element, being that the accused did not hold an honest and reasonable belief that it was safe to proceed.’ The invitation was declined.

58 There are two reasons why it would have been erroneous and inappropriate to give the jury such a direction. The first reason is that, as the trial judge pointed out, the supposed sixth element of the offence was subsumed by the fifth element (as to which counsel made no objection). In order to satisfy the fifth element, the prosecution had to persuade the jury beyond reasonable doubt that the conduct of the respondent was not only unreasonable, but that it was ‘wickedly negligent’. If the jury were not satisfied of that, the charge of manslaughter failed. If the jury were satisfied of that, how could they entertain the possibility that the respondent held an honest and reasonable belief that it was safe to proceed?

59 The second reason is that the principle on which counsel based his argument, which applies in other contexts, is a principle relating to honest and reasonable mistake of fact. The principle was recently discussed in this Court in Ostrowski v Palmer. As the decision in that case illustrates, the principle concerns mistakes of fact. The belief concerning which counsel sought a direction was a (supposed) ‘belief that it was safe to proceed’. Such a state of mind involves an opinion. It might be based upon certain factual inferences or hypotheses (the respondent did not give evidence, so the jury were not told by him exactly what facts or circumstances were operating in his mind), but it necessarily involves an element of judgment. Indeed, it involves a conclusion by the respondent that his conduct was reasonable. The direction sought would be inconsistent with what has been described as the objectivity of the test for involuntary manslaughter. The respondent’s opinion that it was safe to act as he did was not a relevant matter. If there had been some particular fact or circumstance which the respondent knew, or thought he knew and which contributed to that opinion, and the jury had been informed of that, and counsel had asked for a direction about it, then it may have been appropriate to invite the jury to take that into account.”

82. The Prosecutor before Judge Hock referred to Lavender in his written submissions and set out part of paragraph [59] of the High Court’s judgment. The appellant’s submission in the District Court did not really press any reliance on an “honest and reasonable mistake of fact” defence largely for reasons of “logic” which was consistent with the approach taken by the High Court in Lavender at [58]. The question of the reasonableness of the appellant’s actions was encompassed in the decision as to whether his driving fell short of that expected of the reasonable and prudent driver.

83. Her Honour’s finding (beyond reasonable doubt) that the appellant’s driving fell short of that expected of the reasonable and prudent driver was sufficient to satisfy the requirement to give reasons on the issue of “reasonableness” insofar as that involved an objective standard of reasonableness.

84. Considered fairly and read as a whole, and considering the issues before the District Court, Judge Hock provided amply sufficient reasons for concluding that the appellant was guilty of the offence of negligent driving occasioning death. The law applied was explained, as were the issues, her Honour’s findings and the evidence upon which those findings were made. It was a transparent and clear exposition of the reasons for her Honour’s conclusion.

85. For those reasons, we would also reject ground 4.

Conclusion and orders

86. None of the grounds asserting legal error can be sustained.

87. The appeal against the conviction must be dismissed and the orders of the District Court confirmed.

**********

Endnotes

Amendments

20 June 2024 - Paragraph numbering in headnote removed.

Decision last updated: 20 June 2024