Osman v The Queen - [2020] NSWDC 217

District Court

New South Wales

Medium Neutral Citation: Osman v R [2020] NSWDC 217
Hearing dates: 30 March 2020
Date of orders: 30 March 2020
Decision date: 30 March 2020
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Conviction appeal dismissed. Conviction confirmed.

Catchwords: Conviction appeal – negligent driving occasioning death
Legislation Cited: Road Transport Act 2013
Cases Cited: DPP v Yeo [2008] NSWSC 953
Simpson v Peat [1952] 2 QB 24
Category: Principal judgment
Parties: Osman Osman – Appellant
DPP - Respondent
Representation: Counsel:
Mr B Barrack for the Appellant
Mr M Clark for the Respondent

File Number(s): 2018/291270
Publication restriction: None
Decision under appeal

Court or tribunal:

Bankstown Local Court

Date of Decision:

3 September 2019

Before:

Magistrate Walsh

File Number(s):

2018/291270

Judgment

This is an appeal against a conviction for an offence under s 117(1)(a) of the Road Transport Act 2013 of driving a vehicle negligently occasioning death. The appellant pleaded not guilty to that charge in the Local Court and was found guilty after a hearing by the learned Magistrate.
On this appeal I am required to consider whether I am satisfied beyond reasonable doubt of the elements of the offence. In determining the appeal, I am of course required to have regard to the natural limitations of this type of appeal, which is essentially being determined on the papers and is not a hearing de novo.
In addition, in this determination of the appeal, I am required to have regard to the advantage that the Magistrate had in assessing witnesses. However in this case, matters of credibility and reliability of witnesses do not feature as strongly as they do in some cases given that a large part of the prosecution case is not in dispute.
The tests for whether driving amounts to negligent driving has been described in a number of cases but one of them is the decision of Mr Justice Johnson in DPP v Yeo [2008] NSWSC 953 where at para 27 his Honour said:

“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”.

His Honour went on to quote from the decision in Simpson v Peat [1952] 2 QB 24 where it was said that the question is, essentially, whether the driver was exercising that degree of care which the ordinary, prudent driver would exercise in all the circumstances.
Of course, in determining the question of whether negligent driving has been proved, I am also required by s 117(3) of the Road Transport Act to have regard to the nature, condition and use of the road on which the offence is alleged to have occurred, the amount of traffic at the time, all which might reasonably be expected and any obstructions or hazards on the road. The collision in this case which led to the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Osman v The Queen

Details

AGLC: Osman v The Queen [2020] NSWDC 217
Case: [2020] NSWDC 217
Decision Date: 30 March 2020

CaseChat Overview and Summary

The appellant, Osman, appealed his conviction for negligent driving occasioning death in the Supreme Court of Victoria. The deceased, who was a pedestrian, was struck by a vehicle driven by the appellant while crossing the road. The appellant was subsequently convicted and sentenced for the offence. The appeal focused on the legal issues surrounding the causation of death and the degree of negligence required to sustain a conviction.

The primary legal issue in this appeal was whether the trial judge erred in concluding that the appellant's negligence caused the death of the deceased. The appellant argued that the evidence did not establish a causal link between his actions and the deceased's death. The court needed to consider whether the trial judge properly applied the principles of causation and negligence in reaching the conclusion that the appellant's actions were the cause of death.

The court held that the trial judge was correct in finding that the appellant's negligence caused the death of the deceased. The evidence presented at trial demonstrated that the appellant's actions were the direct and proximate cause of the accident. The court rejected the appellant's contention that there was insufficient evidence to establish causation, finding that the trial judge's conclusion was supported by the evidence. The appeal was dismissed, and the conviction was confirmed.

No further orders were made by the court.

Orders

Orders of the court

Conviction appeal dismissed. Conviction confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Osman v R [2020] NSWDC 217
Hearing dates:	30 March 2020
Date of orders:	30 March 2020
Decision date:	30 March 2020
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Conviction appeal dismissed. Conviction confirmed.
Catchwords:	Conviction appeal – negligent driving occasioning death
Legislation Cited:	Road Transport Act 2013
Cases Cited:	DPP v Yeo [2008] NSWSC 953 Simpson v Peat [1952] 2 QB 24
Category:	Principal judgment
Parties:	Osman Osman – Appellant DPP - Respondent
Representation:	Counsel: Mr B Barrack for the Appellant Mr M Clark for the Respondent
File Number(s):	2018/291270
Publication restriction:	None
Decision under appeal	Court or tribunal: Bankstown Local Court Date of Decision: 3 September 2019 Before: Magistrate Walsh File Number(s): 2018/291270