R v Fong

[2020] NSWDC 214

District Court

New South Wales

Medium Neutral Citation:	R v Fong [2020] NSWDC 214
Hearing dates:	15 May 2020
Date of orders:	15 May 2020
Decision date:	15 May 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 73
Catchwords:	CRIMINAL LAW – conviction appeal – dangerous driving offences – negligent driving occasioning grievous bodily harm – whether driver was negligent in reversing in petrol station
Legislation Cited:	Crimes Act 1900 (NSW), s 54 Road Transport Act 2013 (NSW), s 117
Cases Cited:	Ayre v Swan [2019] NSWCA 202 Derrick v Cheung (2001) 181 ALR 301 DPP (NSW) v Yeo (2008) 51 MVR 157 Dyason v Butterworth [2015] NSWCA 52 R v Bateman [1925] All ER 45 R v D (1984) 3 NSWLR 29 Royall v The Queen (1991) 172 CLR 378 Swan v The Queen [2020] HCA 11
Category:	Principal judgment
Parties:	Director of Public Prosecutions Mr M Fong
Representation:	Solicitors: Solicitor for the Director of Public Prosecutions Conditsis Lawyers for the appellant
File Number(s):	2019/139084
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Crime Citation: Unreported Date of Decision: 29 January 2020 Before: Magistrate E Ellis File Number(s): 2019/139084

Judgment

BACKGROUND

1. On 19 November 2018, between 4:30pm and 4:40pm, the appellant was reversing his white Ford Falcon ute out from next to a petrol bowser at a 7-Eleven petrol station at Toukley. In doing so, he backed into a pedestrian, Mrs Joan Horsey, who was in the process of returning to her car after going into the shop. It was accepted in this appeal that, at the time of impact, Mrs Horsey had been standing behind the vehicle for a period of about 30 seconds. The impact of the car caused very serious injury to Mrs Horsey’s legs; particularly her left leg. Her left leg was, for some horrifying moments, trapped under the appellant’s vehicle.

2. The appellant was charged and tried in the Wyong Local Court with the offence of negligent driving occasioning grievous bodily harm, contrary to s 117(1)(b) of the Road Transport Act2013 (NSW) (‘RT Act’).

3. On 16 January 2020, the appellant was convicted of the offence in the Wyong Local Court. Two related charges (sequences 2 & 3) were then withdrawn. On 29 January 2020, the appellant was sentenced. On the same day, the appellant filed an ‘all grounds’ appeal against both his conviction and sentence. Upon the filing of the appeal, execution of the sentence was stayed.

ELEMENTS OF THE OFFENCE, DEFINITIONS AND PRINCIPLES

4. There is no definition of negligence, for the purpose of s 117(1) of the RT Act. That provision is to be construed, however, with reference to the objects of the RT Act, which relevantly includes the regulation of road users and improvement in road safety.

5. Section 117(3) provides that in determining whether the offence of negligent driving on a road is made out, the Court is to have regard to:

“(a) the nature, condition and use of the road on which…