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 117Cases 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 11Category: Principal judgment Parties: Director of Public Prosecutions
Mr M FongRepresentation: 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
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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.
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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’).
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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 Two related charges (sequences 2 & 3) were then withdrawn.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
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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.
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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…
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- AGLC
- R v Fong [2020] NSWDC 214
- Case
- [2020] NSWDC 214
- Decision Date
CaseChat Overview and Summary
The court examined the evidence and legal principles pertinent to the case, focusing on the duty of care owed by a driver when reversing a vehicle in a petrol station. It considered the standard of care expected of a reasonable person under similar circumstances. The court also evaluated whether Mr. Fong's actions, or lack thereof, constituted a breach of this duty and if such a breach resulted in the grievous bodily harm to the pedestrian. Furthermore, the court assessed the credibility of the evidence presented and the applicability of statutory provisions and case law to the facts of the case.
After careful consideration, the court found that Mr. Fong's actions did indeed constitute negligence. The court determined that Mr. Fong failed to exercise the requisite standard of care when reversing his vehicle, leading to the grievous bodily harm of the pedestrian. The evidence presented was deemed credible, and the statutory provisions and case law supported the conviction. Consequently, the appeal was dismissed, and the conviction was upheld. The court's final orders were delivered in paragraph 73 of the judgment.
Orders
Orders of the court
See paragraph 73
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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