Omigie v The King

[2024] NSWCCA 205

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Omigie v R [2024] NSWCCA 205

Hearing dates:

26 July 2024

Date of orders:

11 November 2024

Decision date:

11 November 2024

Before:

Harrison CJ at CL at [1];
Dhanji J at [101];
Rigg J at [102]

Decision:

(1) Extend the time within which to bring the appeal.

(2) Grant leave to appeal.

(3) Dismiss the appeal.

Catchwords:

CRIME – appeal – appeal against conviction – unreasonable verdict – single driving incident that resulted in a series of collisions that caused injury and death – driving in a manner dangerous – misconduct by driving – failure to stop and render assistance – where applicant’s vehicle did not come into contact with another vehicle – where evidence that other drivers avoided the applicant – whether the applicant was “involved in an impact occasioning death” within the meaning of s 52A(6) Crimes Act 1900 (NSW) – whether verdicts open on the evidence

CRIME – appeal – appeal against conviction – inconsistent verdicts – acquittal on one count of misconduct by driving pursuant to s 53 Crimes Act 1900 (NSW) – inability to reach verdict on a separate count of misconduct by driving pursuant to s 53 Crimes Act 1900 (NSW) – where the facts of the misconduct charges were the same facts that led to a conviction for dangerous driving pursuant to s 52A Crimes Act 1900 (NSW) – whether verdicts inconsistent

Legislation Cited:

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

Cases Cited:

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

Still v R [2010] NSWCCA 131

Walker v R [2019] NSWCCA 4

Category:

Principal judgment

Parties:

Francis Omigie (Appellant)
Rex (Respondent)

Representation:

Counsel:
J Cohen (Appellant)
E Nicholson (Respondent)

Solicitors:
Eddy Neumann Lawyers (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2019/147788

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

01 September 2021

Before:

Culver DCJ

File Number(s):

2019/147788

HEADNOTE

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

On 22 March 2021, Francis Omigie was indicted in the District Court of Parramatta before Judge Culver on the following charges:

Count 1: That he on 9 May 2019, at Granville in the State of New South Wales, did drive a motor vehicle, namely, a green Toyota Echo in a manner dangerous to another person or persons, whereby the vehicle was involved in an impact occasioning the death of Francis Shanley – an offence contrary to s 52A(1)(c) Crimes Act 1900 (NSW).

Count 2: That he on 9 May 2019, at Granville in the State of New South Wales, whilst in charge of a motor vehicle, namely, a green Toyota Echo, by misconduct, caused bodily harm to Mate Matkovich – an offence contrary to s 53 Crimes Act.

Count 3: That he on 9 May 2019, at Granville in the State of New South Wales, whilst in charge of a motor vehicle, namely, a green Toyota Echo, by misconduct, caused bodily harm to Samira Al-Djaidi – an offence contrary to s 53 Crimes Act.

Count 4: That he on 9 May 2019, at Granville in the State of New South Wales, did drive a motor vehicle, namely, a green Toyota Echo that was involved in an impact occasioning the death of Francis Shanley, in circumstances where he ought reasonably to have known that the impact occasioned the death of, or grievous bodily harm to, another person, and he failed to stop and give any assistance that may be necessary and within his power to give – an offence contrary to s 52AB(1) Crimes Act.

On 27 April 2021, the jury returned verdicts of guilty on Counts 1 and 4, and not guilty on Count 2. On 28 April 2021, the jury indicated that they could not reach a verdict on Count 3. On 1 September 2021, Mr Omigie was sentenced to an aggregate term of imprisonment of 3 years and 6 months commencing on 5 February 2021, with a non-parole period of 2 years and 2 months expiring on 4 April 2023. The total term expired on 4 August 2024.

Mr Omigie appealed against his convictions on the following grounds:

Ground 1: The verdicts of guilty in relation to offences 1 and 4 are unreasonable.

Ground 2: The verdict of guilty in relation to Count 1 is inconsistent with the acquittal in relation to Count 2, and the failure to reach a verdict in relation to Count 3, and as such the jury must have erred in their task.

The Court (Harrison CJ at CL, Dhanji and Rigg JJ agreeing) held, granting leave to appeal but dismissing the appeal:

As to Ground 1

It was entirely open to the jury to conclude on the evidence in the trial that Mr Omigie’s vehicle became positioned as a stationary hazard in lane 4 and as such was a substantial and operating cause of the chain reaction of collisions and vehicular impacts that followed immediately thereafter: [94].

The fact that other drivers were able to avoid the collision due to their own driving or skill does not answer the fact that Mr Omigie’s driving created a hazard that other drivers were unable to avoid: [95].

It was conceded at trial that Mr Omigie’s vehicle had created a hazard in coming to a stop to which other motorists were thereby required to react. Mr Omigie conceded in this Court that the cause of the impact between the Isuzu truck and Mr Shanley’s vehicle was Ms Moss’ vehicle entering lane 5 as the result of it being struck by the vehicle driven by Ms Al-Djaidi. That cannot be described as a novus actus interveniens: [96], [112].

Mr Omigie came to a complete stop on a busy motorway with a speed limit of 80 km per hour, at a time when traffic was free-flowing but increasing, and in darkness. Mr Omigie clearly subjected others on the road to a level of risk greater than that ordinarily associated with driving a motor vehicle. It was well open to the jury in those circumstances to be satisfied beyond reasonable doubt that in driving in that manner, Mr Omigie seriously breached the proper standards of management and control of his vehicle in a way that resulted in a real danger to other persons on the road: [97], [105].

R v Saunders [2002] NSWCCA 362; Reyne (a pseudonym) v R [2022] NSWCCA 201; Jiminez v R (1992) 173 CLR 572, considered.

As to Ground 2

One explanation for the guilty verdicts on Counts 1 and 4, despite the acquittal on Count 2 and the failure to reach a verdict on Count 3 could be that the jury considered that Mr Matkovich was significantly, or so far, removed from the specific events that caused Mr Shanley’s death and otherwise largely responsible for his own injuries by failing to stop or avoid the collision that it was unreasonable to convict Mr Omigie in those circumstances. By way of contrast, Ms Al-Djaidi was more closely involved in the events that led to Mr Shanley’s death, and in that sense a link in the chain leading to the impact resulting in Count 1. The jury could well have reasoned that she was also significantly responsible for her own injuries by failing to brake in time but that because she was more closely involved with the collision that killed Mr Shanley, there may have been a disagreement in the jury room about whether Mr Omigie should in those circumstances be responsible for her injuries: [98], [113].

JUDGMENT

1. HARRISON CJ at CL: On 22 March 2021, Francis Omigie was indicted before her Honour Judge Culver in the District Court at Parramatta on the following charges:

Count 1: That he on 9 May 2019, at Granville in the State of New South Wales, did drive a motor vehicle, namely, a green Toyota Echo in a manner dangerous to another person or persons, whereby the vehicle was involved in an impact occasioning the death of Francis Shanley (s 52A(1)(c) Crimes Act 1900).

Count 2: That he on 9 May 2019, at Granville in the State of New South Wales, whilst in charge of a motor vehicle, namely, a green Toyota Echo, by misconduct, caused bodily harm to Mate Matkovich (s 53 Crimes Act 1900).

Count 3: That he on 9 May 2019, at Granville in the State of New South Wales, whilst in charge of a motor vehicle, namely, a green Toyota Echo, by misconduct, caused bodily harm to Samira Al-Djaidi (s 53 Crimes Act 1900).

Count 4: That he on 9 May 2019, at Granville in the State of New South Wales, did drive a motor vehicle, namely, a green Toyota Echo that was involved in an impact occasioning the death of Francis Shanley, in circumstances where he ought reasonably to have known that the impact occasioned the death of, or grievous bodily harm to, another person, and he failed to stop and give any assistance that may be necessary and within his power to give (s 52AB(1) Crimes Act 1900).

2. Mr Omigie pleaded not guilty to each Count and was tried before her Honour and a jury. On 27 April 2021, the jury returned verdicts of guilty on Counts 1 and 4, and not guilty on Count 2. On 28 April 2021, the jury indicated that they could not reach a verdict on Count 3.

3. On 1 September 2021, Mr Omigie was sentenced to an aggregate term of imprisonment of 3 years and 6 months commencing on 5 February 2021, with a non-parole period of 2 years and 2 months expiring on 4 April 2023. The total term expired on 4 August 2024.

4. Mr Omigie now appeals against his convictions upon the following grounds:

Ground 1: The verdicts of guilty in relation to offences 1 and 4 are unreasonable.

Ground 2: The verdict of guilty in relation to Count 1 is inconsistent with the acquittal in relation to Count 2, and the failure to reach a verdict in relation to Count 3, and as such the jury must have erred in their task.

5. Although Mr Omigie has pleaded each of these grounds separately, it was originally clear that his challenge to the reasonableness of the verdicts in respect of Counts 1 and 4 was confined to an assertion that they are inconsistent with the acquittal in respect of Count 2 and the jury’s inability to reach a unanimous verdict in respect of Count 3. Mr Omigie did not advance any separate argument in support of Ground 1 other than the asserted inconsistency of the verdicts.

6. However, at the conclusion of the hearing on 26 July 2024, Mr Omigie was given leave to file and serve further written submissions on the issue of the reasonableness of the guilty verdicts as a stand-alone issue, quite apart from the fact that there was an acquittal in relation to Count 2 and an inability to reach a verdict in relation to Count 3.

Extension of time

7. Mr Omigie has served the entirety of his sentence and is now in immigration detention, his visa having been cancelled. These factors have seriously delayed his appeal. While the Crown opposes an extension of time on the basis that the appeal lacks merit, it was accepted that an available course would be, if this Court thought it appropriate, in the interest of finality, to extend time and grant leave to appeal but dismiss the appeal.

Background

8. The four counts on the indictment related to a single episode of driving that occurred around 5.50am on 9 May 2019, resulting in a series of collisions among several vehicles on the M4 Motorway at Granville.

9. Mr Omigie was driving a green Toyota Echo in an easterly direction at Granville. The speed limit was 80km per hour and Mr Omigie was travelling in lane 5 of 5. As he approached the Church Street off-ramp, shortly before the toll point, he merged into lane 4 immediately in front of a Camry sedan driven by Kim Gilks. He then brought his vehicle to a complete stop, angled at 45 degrees towards lane 3. Mr Gilks flashed his lights and held down his horn to try to get Mr Omigie to move his vehicle.

10. Two cars came to a stop behind Mr Gilks’ vehicle, without incident. However, a series of collisions then followed in lanes 4 and 5. Mr Gilks heard the noise of these impacts, and saw the impact on a Toyota Prado driven by Kwan Park as it travelled past his vehicle.

11. A grey Holden Colorado driven by Stephen Scott was travelling in lane 4 behind Mr Gilks and Mr Omigie’s vehicle. Mr Scott saw the cars in front of him and came to a stop in lane 4. He was struck from the rear by a Toyota Corolla driven by Jean Moss, which he described as a “nudge”. He heard a loud crash as vehicles around him collided. At some stage in the series of collisions, Mr Scott’s vehicle was pushed forward again and into lane 5, where it collided with the Toyota Prado in that lane. It ultimately came to rest in lane 2.

12. Ms Moss’ Corolla was struck from the rear by a Mazda 3 driven by Samira Al-Djaidi. That vehicle was then immediately struck from behind by another vehicle. As a result of the impacts, Ms Al-Djaidi suffered inflammation to her hip (Count 3).

13. The collision with Ms Al-Djaidi’s Mazda forced the rear of Ms Moss’ Toyota partially into lane 5, directly in front of Mr Park’s Prado which then collided with Ms Moss’ car in lane 5, causing it to rotate.

14. Francis Shanley was driving his Mazda utility directly behind Mr Park’s Prado in lane 5. He applied his brakes but was unable to avoid colliding with both the Prado and the Corolla, which were entangled. Following that collision, Mr Shanley’s utility was wedged between the Corolla and the dividing concrete barrier in the middle of the motorway.

15. Mr Tisdell was driving his Isuzu truck in lane 5, behind Mr Shanley’s utility. Upon seeing the impact in lane 5 ahead, Mr Tisdell applied his brakes but his vehicle collided with the utility and the Corolla, which were wedged together against the concrete barrier.

16. Accordingly, when Mr Tisdell’s truck collided with these vehicles it rode up on top of the utility with downward force rather than shunting it further down lane 5. The collision caused catastrophic damage to the cabin area of the utility, crushing the cabin and killing Mr Shanley (Count 1).

17. The force of the impact by either Mr Shanley’s utility or Mr Tisdell’s truck, or both, jolted the Prado free of the other vehicles and it travelled further down lane 5. Shortly after, Mr Park reversed it toward the collision site as shown on the site survey.

18. At about the same time as the collisions in lane 5 were occurring, the series of collisions in lane 4 continued.

19. Barry O’Leary was driving an Audi in lane 4 when he observed the collision between Ms Al-Djaidi’s Mazda and Ms Moss’ Corolla. Mr O’Leary immediately braked hard, and his Audi came to a stop, narrowly avoiding a collision with a utility that was stopped in front of him. Immediately after the Audi came to a stop, it was struck from behind by a Toyota HiLux driven by Christopher Francis.

20. The HiLux was also struck from behind by a Mercedes driven by Young Jin Lee. Mr Lee told police that he only hit the HiLux lightly because he had managed to slow “almost all the way down”.

21. The Mercedes was then struck from the rear by another HiLux driven by Mate Matkovich. Mr Matkovich was injured in the collision, suffering a fractured sternum, fractured ribs and partially collapsed lungs (Count 2).

22. Following these collisions, Mr Omigie activated his hazard lights and slowly drove away. He turned the lights off and kept his left indicator on. Mr Gilks followed Mr Omigie and recorded his number plate before Mr Omigie drove away.

23. At 5.48am, Mr Omigie drove his car under the toll collection point. At about 6.16am he sent a text message to his wife that read “You are not the Agnes I knew and married. I’ve had a three near-miss accident today because of trauma I am not even there yet. I better move on with my life before I end up dead”.

24. Mr Omigie did not stop and render any assistance or report the collision to police (Count 4).

25. Mr Omigie was arrested the following day and provided an ERISP. He admitted driving the Toyota Echo on the M4 but denied noticing any collision. He did not remember anyone sounding their horn at him. Later in the interview he alleged that his car had lost power while driving on the motorway at about that time.

26. Mr Omigie’s car was examined by police. No mechanical faults or defects which might have contributed to the collision were detected.

27. The drivers involved were all subjected to mandatory testing. Mr Tisdell returned the presence of 0.005 milligrams per litre of delta-9-tetrahydrocannabinol (the major active component of cannabis), and 0.083 milligrams per litre of 9-THC acid, the inactive metabolite of cannabis. Dr Judith Perl, an expert pharmacologist, said that she could not positively form the opinion that that level of cannabis would result in impairment of Mr Tisdell, having regard to the observations of him at the scene where no symptoms consistent with impairment were noted. Dr Perl could not exclude impairment, and considered some, but not significant, impairment likely. Professor Macdonald Christie, an expert pharmacologist called by Mr Omigie, opined that Mr Tisdell was at least mildly impaired, although he accepted that if cannabis had been used more than 6-12 hours before, there was unlikely to be any substantial impairment of his driving ability.

The prosecution case

28. The Crown case was that by braking harshly and coming to a stop on a busy motorway in darkness, and having regard to the state of traffic at the time, Mr Omigie was driving in a manner dangerous to other persons.

29. The Crown case was that Mr Omigie’s vehicle was “involved in an impact occasioning death” within the extended meaning given to the expression by s 52A(6) because the position and movement of his vehicle in suddenly coming to a stop in lane 3 caused a related sequence of collisions, including the impact between Mr Tisdell’s truck and Mr Shanley’s utility in lane 5. (The relevant provisions are set out later in these reasons.)

30. The Crown relied on the same conduct of stopping completely in lane 4 of the motorway, in darkness, with the traffic travelling at about the speed limit of 80km per hour as being “misconduct” in respect of Counts 2 and 3. Those counts related to the bodily injury of Mr Matkovich who was driving a HiLux, and was the seventh vehicle involved in the series of impacts in lane 4, and Ms Al-Djaidi whose Mazda 3 was the third vehicle involved in lane 4, the collision forcing the Corolla partially into lane 5.

31. The Crown alleged that having regard to the number of impacts between other vehicles and the noise, Mr Omigie ought to have known that they had occasioned grievous bodily harm or death and that he nevertheless failed to stop and render any assistance (Count 4). The Crown also relied on text messages from Mr Omigie to his wife with respect to this count, which the Crown alleged demonstrated his knowledge that he had been involved in a collision of that type.

32. In respect of the elements of Count 1 and the statutory defence raised by Mr Omigie, the Crown relied on the expert evidence of Sergeant Fenton that the unexpected environmental hazard of the stationary Corolla suddenly entering lane 5, which had been unobstructed only seconds before, was such that even if an assumption of optimum reaction time was allowed for, there was no possibility of Mr Tisdell being able to stop his vehicle in time to avoid the collision, irrespective of whether there may have been some degree of THC impairment.

33. Apart from a series of lay and expert witnesses, the Crown relied upon a body of documentary evidence and exhibits, including dash cam footage from the Mercedes and the Prado, photographs of the scene and vehicles involved, various maps of the location, diagrams and a Computer Assisted Drawing diagram. Further, the Crown relied upon text messages sent by Mr Omigie and his recorded interview with police.

Mr Omigie’s case

34. At trial, Mr Omigie did not dispute that he was the driver of the vehicle at the relevant time or that he had driven in the way alleged. He contended, however, that:

In respect of Count 1:

(a) his vehicle had not “been involved in an impact occasioning death” pursuant to the extended definition in s 52A(6). That is, he asserted that his vehicle had not been a substantial or operating cause of the impact between Mr Shanley’s utility and Mr Tisdell’s truck.

(b) his manner of driving was not dangerous to another person or persons.

(c) he could rely on the statutory defence in s 52A(8)(c) Crimes Act 1900. That is, he contended that, even if his driving was dangerous and his vehicle was involved in an impact occasioning death, the death of Mr Shanley was not in any way attributable to the driving because it was solely attributable to the driving of Mr Tisdell.

In respect of Counts 2 and 3:

(a) his manner of driving did not amount to “misconduct”.

(b) even if it did, the Crown had failed to prove beyond reasonable doubt that such “misconduct” was a substantial and operating cause of the bodily harm suffered by Ms Al-Djaidi or Mr Matkovich.

In respect of Count 4:

(a) Mr Omigie disputed that his vehicle had been “involved in an impact” as set out above.

(b) Mr Omigie contended that the Crown had failed to prove beyond reasonable doubt that he ought reasonably to have known that death or grievous bodily harm had been occasioned.

35. Mr Omigie’s case was that the sole cause of the death of the deceased was Mr Tisdell’s driving. In particular, Mr Omigie alleged that Mr Tisdell had not kept a sufficient distance, his reaction times were adversely affected by cannabis ingestion and the truck’s brakes were not working at full capacity.

Statutory provisions

36. Section 52A of the Crimes Act provides relevantly as follows:

52A Dangerous driving: substantive matters

(1) Dangerous driving occasioning death A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle-

…

(c) in a manner dangerous to another person or persons.

…

(6) When vehicle is involved in causing other impacts For the purposes of this section, a vehicle is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if-

(a) the death or harm is occasioned through the vehicle causing an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave a road, and

(b) the prosecution proves that the vehicle caused the impact.

…

(8) Defences It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant) -

…

(c) to the manner in which the vehicle was driven.

37. Section 53 of the Crimes Act is as follows:

53 Injuries by furious driving etc

Whosoever, being at the time on horseback, or in charge of any carriage or other vehicle, by wanton or furious riding, or driving, or racing, or other misconduct, or by wilful neglect, does or causes to be done to any person any bodily harm, shall be liable to imprisonment for two years.

38. Finally, s 52AB of the Crimes Act provides relevantly as follows:

52AB Offence of failing to stop and assist after vehicle impact causing death or grievous bodily harm

(1) A person is guilty of an offence if-

(a) a vehicle being driven by the person is involved in an impact occasioning the death of another person, and

(b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and

(c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give.

…

(3) The provisions of section 52A (5) and (6) (which prescribe circumstances in which a vehicle is taken to be involved in an impact) apply for the purposes of this section in the same way as they apply for the purposes of section 52A.

Legal principles – unreasonable verdicts

39. These principles are well established and are not in dispute.

40. In determining an unreasonable verdict ground, the question to be addressed by an appellate court is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8]; Baden-Clay v The Queen (2016) 258 CLR 308; [2016] HCA 35 at [66]; M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63. That question is one of fact, which the appellate court decides by making its own independent assessment of the whole of the evidence, both as to its sufficiency and its quality, to determine whether any of the verdicts of guilty are unreasonable, or cannot be supported, having regard to the evidence: Dansiev The Queen at [8]; M v The Queen at 492; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14].

41. In answering the question whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that Mr Omigie was guilty, the Court must not disregard or discount either the consideration that the jury was entrusted with the primary responsibility for determining guilt, and must have particular regard to the advantages enjoyed by the jury in seeing and hearing the witnesses give their evidence: Dansie v The Queen at [9]; M v The Queen at 493-495; SKA at [13]; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [37].

42. The court examines the record to see whether the jury acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt either by reason of inconsistencies, discrepancies or other inadequacy, or in the light of the evidence: Pell v The Queen at [39].

Mr Omigie’s submissions – Ground 1 (unreasonable verdict)

43. With respect to Ground 1, Mr Omigie contended that, having regard to the not guilty verdict for Count 2 and the inability of the jury to reach a verdict on Count 3, when combined with the sequence of events that included at least four vehicles in front of Ms Al-Djaidi which were able to avoid a collision of any kind, this supported an acquittal in relation to Count 1, particularly but not exclusively with respect to the issue of causation under s 52A and s 53 of the Crimes Act.

44. Counsel for Mr Omigie provided extensive written submissions effectively in aid of the contention that the circumstances giving rise to the multi-vehicle collision at the heart of these proceedings are so complicated and confusing that any verdict that required a jury to make sense of what occurred is or must be correspondingly frail and hence unreasonable. Having regard to what I perceive to be Mr Omigie’s passionate and committed adherence to this analysis, particularly where his current uncertain status in immigration detention may be affected by the outcome of this appeal, I will include in what follows the submissions made on Mr Omigie’s behalf with respect to these matters.

45. A key issue at trial was whether or not Mr Omigie’s vehicle caused the impact which ultimately resulted in the death of Mr Shanley: s 52A(6)(b). Separately, it is a defence to the charge if the death occasioned by the impact was not in any way attributable to the manner in which the vehicle was driven: s 52A(8)(c).

46. The Crown case was that Mr Omigie stopped his motor vehicle, which caused a sequence of events involving other motor vehicles, ultimately resulting in the truck driven by Mr Tisdell, fatally colliding with Mr Shanley’s vehicle. Evidence was given by a number of the drivers relevant to the accident.

47. Two witnesses were of particular importance. The first witness was Mr Gilks, who was driving a Camry Sedan. He was the only witness who gave evidence of the movements of Mr Omigie’s vehicle prior to the impacts. Mr Gilks said that “the traffic in front of me was slowing down as it does most days along that stretch”. The speed was 70km/h. He was in lane 3 of 4, although at times that lane is referred to as 4 of 5 if one includes the Church Street exit. He saw Mr Omigie’s motor vehicle in lane 4 overtake him, entering lane 3. Mr Omigie’s vehicle then came to a complete stop, forcing Mr Gilks to stop suddenly as well. Mr Omigie’s vehicle was angled at 45 degrees. Mr Gilks flashed his lights at Mr Omigie. Mr Gilks said that at this point he perceived Mr Omigie to create a danger and he sounded his horn. Other vehicles swerved around Mr Omigie’s vehicle as it crept forward into lane 2.

48. While Mr Omigie was “moving to the left [he] appeared to be driving normally, albeit slowly”. Mr Gilks said that he could see the upright reflecting posts on his left while Mr Omigie’s vehicle was in front of him. It is not clear whether he was looking forward (and to what extent) or to his immediate left. Mr Gilks said because of the posts, Mr Omigie’s vehicle was too far east to make the Church Street exit, which at that point is not consistent with the Crown’s alleged motivation that Mr Omigie was attempting to merge so he could take that exit. Mr Gilks went on to say that he heard an extremely loud bang after Mr Omigie was stopped or creeping into lane 2. Mr Omigie submitted that this cast doubt on the assertation that his dangerous act caused the accident, or that he was driving dangerously at the time of the accident. Section 52A(1) requires the dangerous driving to occur at the time of impact. Mr Omigie submitted on the facts of this case that there must be doubt on both the question of causation and whether Mr Omigie was driving dangerously at the relevant time.

49. Four drivers behind Mr Omigie were able to stop without colliding with the vehicle immediately in front, being Mr Gilks, two unknown drivers and Mr Scott. Mr Scott did not suggest any great urgency at least at the time he stopped. The fact that he states he “managed” to stop and was unsure why cars had stopped cannot be used to infer danger.

50. Mr Omigie submitted that Mr Gilks’ evidence was inconclusive and to a significant degree remains ambiguous as to what role Mr Omigie played in relation to the “chain reaction” as alleged by the Crown, or if he played any role at all.

51. Two other vehicles were able to stop behind Mr Gilks’ motor vehicle without incident. Those vehicles left the scene. Mr Scott’s evidence was that the traffic was clear for 100 metres ahead. He did not say what car was immediately in front of him when he stopped. He says, “I broke [sic, braked] and managed to stop my car behind another car”. Later he says: “As I was stationary I felt a nudge from behind. I knew a car had hit my car but knew it was minor given the minimal impact”.

52. Mr Scott saw the Isuzu truck behind coming quickly. However, this was not in his lane but in lane 4, although he says he braced himself for a collision.

53. The Crown case was that it was Ms Moss’ Corolla which then collided with Mr Scott’s vehicle. Ms Moss said she was unable to stop to avoid Mr Scott’s vehicle in front of her. She was travelling at 70km/h and about 7-10 metres behind the vehicle in front of her. It appears the impact between her vehicle and Mr Scott’s vehicle was very minor. She was then in turn hit from behind by another motor vehicle which caused her vehicle to spin 150 degrees, going into the inside lane 4 closest to the barrier. She was then struck by the Prado which was in lane 4.

54. Ms Al-Djaidi said that there was a mild build-up of traffic but it was still moving. She was 5-10 metres behind Ms Moss’ vehicle in front of her. This vehicle suddenly stopped and she was unable to avoid colliding with it.

55. The impact between Ms Al-Djaidi’s vehicle and Ms Moss’ vehicle appears to have been quite significant, and Ms Moss’ vehicle spun around partially into lane 4 which caused the Prado to collide with Ms Moss’ car, which in turn caused Mr Shanley’s car to collide with Mr Park’s car. Immediately prior to the impact with Ms Moss’ Corolla, Ms Al-Djaidi put on her left indicator and appears to have been attempting to overtake or get around the stationary vehicles. Mr Shanley’s vehicle may also have collided with Mr Scott’s vehicle, and at one point was between Mr Scott’s vehicle and the Prado, and the Corolla driven by Ms Moss.

56. A barrier was created by Ms Moss’ Corolla, possibly Mr Scott’s vehicle in lane 3, as well as the Prado and the concrete inside barrier, so that Mr Shanley’s vehicle could not move forward after Mr Tisdell’s truck collided with it.

57. Mr Omigie submitted that the evidence generally indicates that the M4 around the Church Street exit often had traffic, and a portable upright barrier was placed between lanes 1 and 2 and the other lanes. The evidence also indicates that at the speeds both Ms Moss and Ms Al-Djaidi were travelling, they were each too close to the vehicles in front of them in case there was a need to brake.

The Crown’s submissions – Ground 1 (unreasonable verdict)

58. With respect to the question of causation, the Crown was required to prove that Mr Omigie’s conduct in driving his vehicle was a substantial or significant cause or a sufficiently substantial cause of the outcome. It need not be the only operating cause and the question of causation does not necessarily require a comparison of the relative causative potency of various operative causes. The question is to be determined by an application of common sense to the facts, always appreciating the overarching purpose of the enquiry.

59. The offence of dangerous driving causing death is committed where there is objectively a quality in the manner of driving which either intrinsically in all the circumstances or because of the particular circumstances surrounding the driving it is in a real sense potentially dangerous. There must be a serious breach of the proper conduct of a vehicle on a roadway, so serious as to be in a real sense potentially dangerous to others who may be upon the roadway or in its vicinity. The matter is one that is objectively assessed and involves demonstrating that the driving subjected another person to a level of risk greater than that ordinarily associated with driving a motor vehicle.

60. The Crown submitted that the verdicts of the jury were plainly open on the evidence in the trial and that this Court, in making its own independent assessment of all of the evidence, would not have any doubt. The Crown submitted that Mr Omigie’s argument that the verdicts are unreasonable because it was not open to them to be satisfied beyond reasonable doubt that his vehicle was “involved in an impact” pursuant to s 52A(6) or that he was driving in a manner dangerous at the time his vehicle was “involved in an impact” ought to be rejected.

Applicable principles – inconsistent verdicts

61. The following principles also apply to the resolution of this appeal and are not in dispute.

62. The burden of persuasion that appellate interference is required rests with the person who impugns the verdict: Mackenzie v The Queen (1996) 190 CLR 348 at 370; [1996] HCA 35. The test to be applied where an allegation is made that verdicts are inconsistent is one of logic and reasonableness: Mackenzie v The Queen at 366; Walker v R [2019] NSWCCA 4 at [103]. The focus of the inquiry is on the acquittals (rather than the convictions). In order to succeed, the applicant “must satisfy the court that the two verdicts cannot stand together”, that is, that “no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion”: Mackenzie v The Queen at 366; Walker v R at [103]. If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury properly performed their functions, that conclusion will generally be accepted.

63. It is only where inconsistency rises to the point that intervention is necessarily required to prevent a possible injustice, that the relevant conviction will be set aside: Walker v R at [105]; Still v R [2010] NSWCCA 131 at [58]. Furthermore, this task must be considered in the context of the system within which juries function as the trier of fact and of the jury’s role in that system: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34].

64. A relatively high bar must be overcome before a conviction will be set aside on the basis of (apparent) inconsistent verdicts and an appeal court should exercise restraint before concluding that the absence of strict logic between differential verdicts meant that the jury had acted unreasonably in reaching the guilty verdict: Mackenzie v The Queen at 368; MFA v The Queen at [49] and [51]; Smith v R [2023] NSWCCA 118 at [62], [67]; Barney v R [2023] NSWCCA 85 at [10].

65. The significance of verdicts of not guilty on some counts on an indictment must be considered in light of the particular circumstances of the case: MFA v The Queen at [34]. Where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count, and will ordinarily be directed that the evidence of each witness may be accepted in whole or in part. It must also be borne in mind that the directions to the jury will emphasise the heavy onus of proof which lies on the prosecution: MFA v The Queen at [34].

66. It has also been recognised that juries are entitled to take “a ‘merciful’ view of the facts upon one count” (Mackenzie v The Queen at 367) or exercise some discretion in considering that justice is sufficiently met by convicting the accused of some only of the offences charged: Mackenzie at 367-8; MFA at [34] and [85]; Saunders v R [2022] NSWCCA 273 at [103]; Barney at [11]; R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [133].

67. The resolution of the question of whether it was “open to the jury” to convict on some counts and acquit on another or others depends on whether the verdicts can be reconciled on “the whole of the facts and circumstances of [the] particular case”: R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [10]; MFA v The Queen at [34]. In making its own assessment of the reasonableness of the guilty verdicts in the light of the acquittals, this Court should properly be conscious of the advantage of a jury over an appellate court: MFA at [23]; Saunders v R at [104]; Baden-Clay at [65].

68. The principles regarding inconsistent verdicts do not apply where the so-called inconsistency is between a failure to reach a verdict on a particular count and a verdict of guilty on another count, except in very limited circumstances where the outcome “is an affront to logic and common sense and suggests a compromise by the jury of its duty”: Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191 at [240]; PA v R [2015] NSWCCA 18; (2015) 253 A Crim R 154 at [35]; Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [232]. An example would be where there was the same evidence as to the elements common to each charge and no dispute that the uncommon elements were made out.

Mr Omigie’s submissions – Grounds 1 and 2 (inconsistent verdicts)

69. For the purpose of Count 1, the Crown case was that the dangerous act by Mr Omigie consisted of his slowing down and then stopping on the M4 while attempting to merge left to the exit lane. The Crown case was that this same dangerous act was the start of a chain reaction resulting in all of the ensuing motor vehicle collisions. That meant Mr Omigie was a substantial and contributing factor for all of the accidents, including the accident leading to the death of Mr Shanley and the injuries to the other drivers the subject of Counts 2 and 3. The Crown case was that whatever errors other drivers made did not take away from the fact Mr Omigie was the initiating cause of the entire chain of events, and thus a substantial contributing factor to all of the collisions.

70. Ultimately only Mr Omigie’s act of stopping his vehicle could have caused the accidents, as opposed to his manner of driving leading up to the accident. This is because the first four drivers avoided his car and the first point of impact was when Ms Moss’ car collided with Mr Scott’s car, at a time when Mr Omigie had already stopped. That impact could not have been influenced by Mr Omigie’s earlier driving, other than the fact he was stopped. While there were two distinct branches in relation to the impacts, the starting point still must have been that Mr Omigie stopped his motor vehicle, which was dangerous, according to the Crown.

69. The Crown did not attempt to differentiate among the facts relating to each of the counts that would enable a jury to come to different conclusions in relation to Counts 1, 2 and 3. For the purpose of Counts 2 and 3 the Crown case was that the “misconduct” in the use of the motor vehicle was the same set of circumstances as the “dangerous” driving in relation to Count 1. While Mr Omigie attempted at trial to attribute blame in relation to Count 1 to Mr Tisdell, he submitted in this Court that nothing put by him at trial would have provided a rational basis for the jury to reach its different verdicts. Furthermore, the evidence itself did not provide any rational basis for the jury to come to different conclusions in relation to Counts 1, 2 and 3.

70. Issues of credit did not arise in the current case. The factual dispute was narrow. Mr Omigie submitted this case was one of true inconsistency such that the jury must have misunderstood their task. Furthermore, the guilty verdict on Count 1, given the acquittal in relation to Count 2 and the inability to reach a verdict on Count 3, is also unreasonable, as the jury must have had grave doubts as to whether Mr Omigie either misconducted himself while driving and that the misconduct caused the injuries the subject of Counts 2 and 3. While the Crown case could not be described as weak, the defence nonetheless put a number of matters robustly to the jury. These matters must have created at least some doubt in relation to Count 3 and sufficient doubt in relation to Count 2 to secure an acquittal.

71. Mr Omigie submitted that, as such, the verdicts are intractably inconsistent and the evidence does not enable this Court to draw any conclusions as to how the jury rationally reached its verdicts. Accordingly, the jury must have erred in their deliberation, resulting in a mistrial in relation to Counts 1 and 4.

72. Furthermore, Count 4 involves a determination of whether Mr Omigie was involved in a motor vehicle accident causing the death, being one of the elements of the offence. This is also an element of Count 1. Mr Omigie challenged this issue, saying that he was not involved in an impact as he was not a substantial cause of the impact, the cause being the driving of the truck by Mr Tisdell. This was argued by Mr Omigie both in relation to its significance as an element of the offence and also in relation to the s 52A(8) defence. Accordingly Count 4 is also part of the inconsistent determination by the jury, and the verdict for Count 4 cannot remain standing if this Court determines there was a mistrial.

The Crown’s submissions – Grounds 1 and 2 (inconsistent verdicts)

Acquittal in respect of Count 2

75. The Crown noted that the trial judge instructed the jury about the elements of each offence and also the heavy burden that fell on the Crown to prove the offences. She instructed the jury about the statutory defence that applied only to Count 1, and the onus borne by Mr Omigie in that regard. Her Honour instructed the jury to consider each count individually and to examine each individual count to decide whether they were satisfied beyond reasonable doubt in relation to that particular count. The jury were specifically told that, while there was some overlap in the evidence, they were required to determine the elements of each count separately and that it was possible to return different verdicts. The Crown emphasised that those directions provide important context for the consideration of this ground of appeal.

76. The Crown submitted that Mr Omigie's argument proceeds on the flawed premise that because the counts arose out of the same factual scenario and involved overlapping considerations, there was no scope for different verdicts in respect of some counts. That submission overlooks the fact that while involving the same facts, these counts required proof beyond reasonable doubt of different elements. Further, the submission overlooks the fact that Mr Omigie bore an onus in respect of Count 1, which was not the case in respect of any of the other counts.

77. The Crown submitted that an analysis of the evidence and the elements of each of the offences reveals a logical and reasonable basis for the jury to return a verdict of not guilty on Count 2 whilst being satisfied to the necessary standard with respect to Counts 1 and 4.

78. The Crown submitted that there was a logical basis for the acquittal.

79. First, the differential verdicts in respect of Counts 2 and 3 are logically explicable on the basis that, in respect of Count 1, the Crown did not have to prove that the actions of Mr Omigie in stopping his car suddenly in lane 4 was the cause of Mr Shanley's death. Rather, the Crown were required to prove only that Mr Omigie’s driving in that manner was objectively dangerous to other persons on the road and that his car was "involved in an impact occasioning death" in that his vehicle (i.e. the movement or position of the vehicle rather than the specific conduct of Mr Omigie) was a substantial and operating cause of the impact that occurred between Mr Shanley’s utility and the Isuzu truck. In that regard, it is to be observed that Mr Omigie's counsel at trial conceded in his closing address to the jury that in coming to a stop as he did in free-flowing traffic on the motorway, Mr Omigie's vehicle had created a "hazard" which had caused reactions by the other drivers. The collision which forced Ms Moss' Corolla partially into lane 5 was early in the series of collisions and the evidence was that the way that the lane 5 vehicles collided and wedged the utility against the concrete barrier was critical, as it resulted in the Isuzu truck riding over the utility rather than propelling it forward.

80. Once the Crown had proved these two elements beyond reasonable doubt, the burden shifted to Mr Omigie to persuade the jury that Mr Shanley’s death was "in no way attributable" to his dangerous driving. That is an obvious distinction between Count 1 and Counts 2 and 3 (where the Crown was required to prove that the misconduct (driving) caused the injury). It is plain from the verdict of guilty in respect of Count 1 that the jury were not satisfied that Mr Omigie had established the defence.

81. In contrast, in respect of Counts 2 and 3, the burden fell solely on the Crown to prove the causal connection (beyond reasonable doubt) between Mr Omigie stopping his vehicle and the particular injuries that Mr Matkovich and Ms Al-Djaidi had sustained. The jury were directed that it would not be sufficient if Mr Omigie's misconduct was "merely coincidental" with either Mr Matkovich or Ms Al-Djaidi suffering bodily harm, or was "insignificantly connected" with it. The more remote that a particular vehicle was from Mr Omigie's vehicle (and thus, the more removed that the injuries were from his asserted misconduct), the more difficult it became for the Crown to establish beyond reasonable doubt that his conduct remained a substantial and operating cause of that bodily injury (as distinct from the driver's own conduct or manner of driving, or the influence of intervening events).

82. In his closing address to the jury, Mr Omigie's counsel emphasised that in considering whether the Crown had established beyond reasonable doubt Mr Omigie was the cause of all of the impacts that happened behind his vehicle, more than four drivers had been able safely to react and avoid any collision.

83. Mr Matkovich's vehicle was the tenth and final vehicle in the series of collisions. The Mercedes immediately in front of him had a very minor impact with the car in front, as it had been able to slow down substantially. By contrast, the impact from Mr Matkovich's vehicle was significantly more forceful. Mr Omigie's submission to the jury at trial was that Mr Matkovich had not been paying attention to the cars in front of him and that the force of the collision was the only reason that he sustained the bodily injury that he did.

84. The Crown submitted that the jury were properly directed about the elements and statutory defence in respect of Count 1, and it is plain from their jury note that this was a matter that was given attention in their deliberations.

85. Secondly, the differential verdict in respect of Count 2 may also be logically explained by reference to the different element of "misconduct" in that offence. In respect of Counts 2 and 3, the burden fell on the Crown to prove beyond reasonable doubt that Mr Omigie's manner of driving at the relevant time amounted to "misconduct". In that regard, the jury were instructed that whether he engaged in misconduct was a matter that could be considered with the application of their common sense. This was a different element from Count 1, which required an objective assessment as to whether Mr Omigie's manner of driving was dangerous to another person or persons.

86. It was submitted that, contrary to Mr Omigie's submissions, it is not the case that the acquittal on Count 2 and the inability to reach a verdict on Count 3, establish that the jury must have misunderstood their task or must have had "grave doubts about whether the applicant misconducted himself while driving and that the misconduct caused the injuries the subject of count 2 & 3". Rather, Counts 2 and 3 required the Crown to prove different elements and involved an assessment of different factual matters. Thus, there is a logical and reasonable basis for the acquittal.

87. The Crown submitted that differential verdicts, far from providing an indication that a jury has fallen down in its task, may very often provide the basis for confidence that the jury has done precisely what it has been instructed to do, namely, consider each count separately and reach a verdict on that count, on the evidence relevant to that count: see AH v R [2019] NSWCCA 152 at [62] (per Simpson AJA). The Crown maintained that this is such a case. Far from suggesting the verdicts on Counts 1 and 4 are unreasonable or inconsistent with the other counts, the different outcomes in this case suggest that the jury properly applied the directions they were given, particularly regarding the different elements of each of the offences, the heavy burden of proof on the Crown and the onus falling on Mr Omigie on the balance in respect of the statutory defence.

Inability to reach a verdict on Count 3

88. The Crown submitted that while the offences arose out of the same episode of alleged offending, Count 3 involved different elements to Counts 1 and 4 and the evidence directly referrable to each was different.

89. Further, while the elements in Counts 2 and 3 were common, the factual circumstances were different. Ms Al-Djaidi's vehicle was not as remote from Mr Omigie's asserted misconduct in stopping his vehicle, compared with Mr Matkovich's vehicle. Further, Ms Al-Djaidi had been cross-examined about the distance between her car and the car in front of her (which she had told the police was 5-10 metres), and it was suggested that she had been travelling too close in the circumstances. Moreover, there had been three vehicles (Ms Gilks' vehicle, and two others) which had stopped behind Mr Omigie without impact. In his closing address, counsel for Mr Omigie suggested to the jury that the only cause of Ms Al-Djaidi's injuries was that she had been driving her car too close to the vehicle in front of her so that the collision had been more forceful as a result.

90. The Crown submitted in summary that Mr Omigie has not demonstrated that the jury's inability to reach a verdict on Count 3 rises to the high threshold of demonstrating such an affront to logic and common sense to suggest a compromise by the jury of its duty. In those circumstances the principles of inconsistent verdicts do not apply. The Crown submitted that Mr Omigie’s attempt to rely on the jury's failure to reach a verdict on Count 3 when assessing the reasonableness of the verdicts on Counts 1 and 4 would invite this Court "to speculate (impermissibly) as to the reason the jury was hung on some counts and to extrapolate from that speculation as to its significance” on the counts with separate and different elements to be proven: SM v R [2022] NSWCCA 13 at [10].

91. The Crown concluded with the contention that Mr Omigie has not demonstrated that the verdicts of guilty on Counts 1 and 4 are unreasonable on the basis of inconsistency, or that appellate interference with the verdicts is warranted. As a matter of logic and reasonableness, the verdicts of guilty can stand together with the acquittal on Count 2 and are reconcilable.

Consideration

92. In my opinion, there is no support for Mr Omigie’s contentions that the guilty verdicts on Counts 1 and 4 are, or that either of them is, unreasonable or that there is any inconsistency between these guilty verdicts and the verdict on Count 2 and the failure of the jury to reach a verdict on Count 3.

93. It cannot be the subject of any doubt that Mr Omigie brought his vehicle to a stop in lane 4 on a busy multi-lane motorway which was otherwise completely unobstructed. It would appear, although it is for present purposes completely irrelevant, that Mr Omigie had intended to take the Church Street exit on the far left of the motorway when he realised that he was in lane 4 and needed to move to his left lest he travel past the point where he could do so. Whether or not that was his motivation for stopping, it is clear that he did so. That behaviour and the position of his vehicle caused vehicles in lane 4 to stop suddenly as the result of which a series of collisions then occurred. One of them resulted in Mr Shanley’s death. It is abundantly clear from all of the evidence in the trial that although Mr Omigie’s vehicle did not itself come into contact with another vehicle, it was the behaviour and the position of his vehicle that was a substantial and operating cause of the collisions between the other vehicles immediately behind and around him.

94. I cannot accept Mr Omigie’s suggestion that the evidence in the trial was unclear as to whether his vehicle played any role at all in this sequence of events. It was entirely open to the jury to conclude on the evidence in the trial that his vehicle became positioned as a stationary hazard in lane 4 and as such was a substantial and operating cause of the chain reaction of collisions and vehicular impacts that followed immediately thereafter.

95. Mr Omigie’s argument that he should not be held liable in the circumstances where other drivers were able safely to avoid the collision due to their own driving or skill should also be rejected. The fact that they were able to do so does not answer the fact that his driving created a hazard that other drivers were unable to avoid. In a similar vein, Mr Omigie’s argument that there was a “significant distance” between his vehicle and the first point of contact should also be rejected. That suggestion fails to take account of the evidence in the trial that the other drivers involved in the several collisions were in close physical and temporal proximity to Mr Omigie’s vehicle stopped in lane 4.

96. It should be noted that it was ultimately conceded at trial in the closing submissions of Mr Omigie’s counsel that his vehicle had created a hazard in coming to a stop in the way that it did, in the otherwise free-flowing traffic on the motorway, to which other motorists were thereby required to react. It should also be recalled that Mr Omigie conceded in this Court that the cause of the impact between the Isuzu truck and Mr Shanley’s vehicle was Ms Moss’ vehicle entering lane 5 as the result of it being struck by the vehicle driven by Ms Al-Djaidi. Nor could that be described as a novus actus interveniens: Ms Moss’ vehicle entered lane 5 only because it had been forced to brake in lane 4 as the result of Mr Omigie’s vehicle obstructing that lane, when Ms Al-Djaidi’s vehicle collided with it.

97. Mr Omigie has submitted that even if the jury were satisfied that his vehicle was involved in an impact pursuant to s 52A(6), the verdict was unreasonable because it was not reasonably open to the jury to be satisfied beyond reasonable doubt that he was driving in a manner dangerous to other persons at the relevant time. I am unable to accept that submission. Mr Omigie’s conduct as a driver was a matter that the jury was required to assess according to an objective standard applying to all users of public roads: R v Saunders [2002] NSWCCA 362; (2002) A Crim R 104 at [17]. That was a quintessential jury question involving matters of degree and judgment and the application of community standards: Reyne (a pseudonym) v R [2022] NSWCCA 201; (2022) 302 A Crim R 297 at [106]-[107]. Mr Omigie does not suggest that the jury were not properly instructed on the elements of the offence. Accordingly, the question is whether it was open to the jury to reach the conclusion that Mr Omigie’s conduct was dangerous. As already noted, Mr Omigie came to a complete stop on a busy motorway with a speed limit of 80 km per hour, at a time when traffic was free-flowing but increasing, and in darkness. Mr Omigie clearly subjected others on the road to a level of risk greater than that ordinarily associated with driving a motor vehicle. It was well open to the jury in those circumstances to be satisfied beyond reasonable doubt that in driving in that manner, Mr Omigie seriously breached the proper standards of management and control of his vehicle in a way that resulted in a real danger to other persons on the road.

98. Nor am I satisfied that there is any relevant inconsistency between the verdicts on Counts 1 and 4 and the verdict on Count 2 and the result on Count 3. The jury were required to consider and assess each count separately. Differential verdicts are consistent with an indication that they did so, especially when there is discernible explanation or basis for what occurs. In this case, one possible explanation for the guilty verdicts on Counts 1 and 4, despite the acquittal on Count 2 (Mr Matkovich) and the failure to reach a verdict on Count 3 (Ms Al-Djaidi) could be that the jury considered that Mr Matkovich was significantly, or so far, removed from the specific events that caused Mr Shanley’s death and otherwise largely responsible for his own injuries by failing to stop or avoid the collision that it was unreasonable to convict Mr Omigie in those circumstances. By way of contrast, Ms Al-Djaidi was more closely involved in the events that led to Mr Shanley’s death, and in that sense a link in the chain leading to the impact resulting in Count 1. The jury could well have reasoned that she was also significantly responsible for her own injuries by failing to brake in time but that because she was more closely involved with the collision that killed Mr Shanley, there may have been a disagreement in the jury room about whether Mr Omigie should in those circumstances be responsible for her injuries: the jury did not find that Mr Omigie could not be proved to be the cause of the injuries to Ms Al-Djaidi.

99. Moreover, the jury may well have been concerned that Mr Matkovich and Ms Al-Djaidi were responsible to some extent for the collisions in which they were first involved by following too closely behind the car in front of them. In contrast, Mr Tisdell was in a different position. The obstruction in lane 5 that led to Mr Shanley’s death was the result of the lateral movement of vehicles into his lane from lane 4 that blocked the flow of traffic in a manner that was more difficult to predict and which created a situation that Mr Tisdell had little if any opportunity to avoid. It is possible that the jury were disinclined to inculpate Mr Omigie for the injuries sustained by Mr Matkovich or Ms Al-Djaidi when their driving may have contributed to what happened to them.

Orders

100. In these circumstances I consider that the following orders should be made:

1. Extend the time within which to bring the appeal.

2. Grant leave to appeal.

3. Dismiss the appeal.

101. DHANJI J: I agree with the orders proposed by Harrison CJ at CL for the reasons given by his Honour, together with the additional reasons of Rigg J.

102. RIGG J: I have had the advantage of reading the draft judgment of Harrison CJ at CL. I agree with his Honour, for the reasons that his Honour has given, that the conviction for Count 1 was not inconsistent with the acquittal for Count 2.

103. From my own examination of the evidence in relation to Count 1 I do not consider that the jury ought to have entertained a reasonable doubt about the guilt of Mr Omigie on Count 1. I am grateful for the outline of evidence, legislative provisions, and arguments set out by Harrison CJ at CL, and wish to address only a small number of additional points.

104. Mr Omigie’s argument focused, apart from asserted inconsistency, on two aspects of the Crown case said to leave open a reasonable possibility that he was not guilty. The first was his manner of driving at the precise moment of the impact occasioning death. The second was whether the stopping of his vehicle in the circumstances he did caused the impact occasioning death.

105. As to the first issue, I took Mr Omigie’s argument to be that the evidence was not of sufficient cogency to establish beyond reasonable doubt that his vehicle was still stopped at the precise time of the impact causing death. To such end Mr Omigie relied particularly upon analysis of dashcam footage taken from two vehicles (Exhibit 22) and Mr Gilks’ evidence. Having considered this evidence, in the context of the other relevant evidence, I am of the view that Mr Omigie stopping his vehicle in the location and circumstances he did was so nearly contemporaneous with the fatal impact as to satisfy the requirement that he was driving in a manner dangerous at the time of the impact occasioning death, even if he had started moving off slowly by the time of the relevant impact: see Jiminez v R (1992) 173 CLR 572; [1992] HCA 14 at 578.

106. This aspect of Mr Omigie’s argument is closely related to the requirement for causation arising from the Crown’s reliance upon s 52A(6) of the Crimes Act 1900 (NSW). Although the Crown on appeal placed emphasis on an asserted difference between the test for causation between the offence provisions governing Count 1 on the one hand, and Counts 2 and 3 on the other, I am not of the view that there was a meaningful difference between them in the circumstances of this case.

107. As the vehicle driven by Mr Omigie was not “involved in an impact” in the ordinary sense it was necessary for the Crown to rely on s 52A(6). By that provision Mr Omigie’s vehicle was “involved in an impact” if the death was “occasioned through the vehicle causing an impact between other vehicles …”, and “the prosecution proves that the vehicle caused the impact”. Because s 52A(6) was relied on, the offence against s 52A(1) required the Crown to prove beyond reasonable doubt that Mr Omigie was driving the vehicle in a manner dangerous and the vehicle caused the fatal impact. If this was done, in the circumstances of this case, it is difficult to see the role of the defence in s 52A(8), and Mr Omigie’s focus on appeal (correctly in my view) was not on it but s 52A(6).

108. For the purposes of the s 53 offences in Counts 2 and 3 the Crown was required to prove that Mr Omigie’s misconduct (stopping the vehicle in the location and circumstances he did) caused the bodily harm to each victim. In this case, there was significant similarity legally between all counts regarding the element of causation. For Count 1 the question was whether Mr Omigie’s vehicle, stopped in the location and circumstances it was, caused the impact occasioning death. For Counts 2 and 3 it was whether Mr Omigie’s misconduct, in stopping his vehicle in the location and circumstances he did, caused the bodily harm to the two victims.

109. I have found helpful in considering the chain of causation in relation to each of the first three counts the table provided by the trial judge to the jury as demonstrating the Crown case on causation, reproduced here with some grammatical alterations.

Figure 1: Table showing chain of causation provided to the jury

110. As can be seen from this table, and as is apparent from the analysis of the evidence undertaken by Harrison CJ at CL, the actions of Ms Al-Djaidi were a link in the chain of causation of the impact occasioning death. The actions of Mr Matkovich were not.

111. A focus of Mr Omigie’s argument on appeal was whether Ms Al-Djaidi broke the chain of causation. It was argued that as the vehicle driven by Ms Moss moving into lane 5 was a central cause of the fatal impact, the prospect that the impact between the vehicles driven by Ms Al-Djaidi and Ms Moss was a novus actus interveniens meant the Crown had not proved causation beyond reasonable doubt. It was argued that there was doubt as to whether Mr Omigie’s misconduct (Count 3) or vehicle (Count 1) caused Ms Al-Djaidi’s collision with Ms Moss, which was necessary to cause the bodily harm to Ms Al-Djaidi (Count 3) and the movement of Ms Moss’ vehicle into lane five (essential for proof of Count 1).

112. On my own assessment of the evidence I am satisfied beyond reasonable doubt that Mr Omigie’s vehicle substantially contributed to the impact of Ms Al-Djaidi’s vehicle with Ms Moss’ and there was no break in the chain of causation.

113. Had Mr Omigie been acquitted of Count 3 a real issue as to inconsistency with guilt of Count 1 would have arisen for determination. However this does not need to be decided because of the different approach to asserted inconsistency where there has been jury disagreement and no verdict, as explained by Harrison CJ at CL. The outcome of Counts 1 and 3 was not an affront to logic and common sense suggesting compromise by the jury of its duty.

114. On my assessment of the evidence I am also of the view that it was open to the jury to find Count 4 proved beyond reasonable doubt.

115. For these reasons, additionally to those given by Harrison CJ at CL, I agree with the orders proposed by his Honour.

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Decision last updated: 11 November 2024