R v Gallaty

Case [2021] QCA 80

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gallaty [2021] QCA 80

PARTIES:

R
v
GALLATY, Ronald Trevor
(appellant/applicant)

FILE NO/S:

CA No 216 of 2020
DC No 453 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – [2020] QDC 230 (Barlow QC DCJ)

DELIVERED ON:

28 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2021

JUDGES:

Morrison JA and Lyons SJA and Boddice J

ORDERS:

1.   The appeal against conviction be dismissed.

2.   Leave to appeal against sentence be granted.

3.   The appeal against sentence be allowed.

4.   The sentence below be set aside.

5.   The appellant be sentenced to three years’ imprisonment, suspended forthwith for an operable period of three years.

6.   A conviction be recorded.

7.   The appellant be disqualified from holding or obtaining a driver’s licence for a period of two years from the date of his conviction.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OPINION OF TRIAL JUDGE – where the appellant was found guilty of one count of dangerous operation of a vehicle causing death, after a Judge alone trial – where the appellant submits that there was a reasonable hypothesis consistent with innocence open to the trial judge – where the respondent submits that a consideration of the evidence, as a whole, supported findings that the truck was travelling at about 80 kilometres per hour just before it entered the bend; the truck remained within its lane at all material times around that bend; and the heavy vehicle mark was caused by the truck – where once it was found the truck made that mark, a conclusion beyond reasonable doubt that the truck was travelling too fast and was being operated dangerously was plainly open – whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the appellant drove the truck and trailer combination into the bend dangerously and that that dangerous operation caused the death of the deceased

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the primary judge found that the appellant had “a significant history of traffic offences” and that the appellant “had developed a habit of driving your truck and trailer to and beyond the limits of their safe operational capacities” and that the appellant had “a cavalier attitude to operating your vehicles at a safe speed in particular” – whether there was a misapplication of the sentencing process, warranting a re-exercise of the sentencing discretion

Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, cited
R v Huxtable[2014] QCA 249, cited

COUNSEL:

S C Holt QC, with A McDougall, for the appellant/applicant
D L Meredith for the respondent

SOLICITORS:

TWC Lawyers for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

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Details
AGLC
R v Gallaty [2021] QCA 80
Case
[2021] QCA 80
Decision Date

CaseChat Overview and Summary

The case of R v Gallaty involved the appellant, who was convicted of dangerous operation of a vehicle causing death. The conviction followed a plea of guilty, and the appeal was against both the conviction and the sentence. The appellant argued that the verdict was unreasonable or not supportable given the evidence, specifically that there was a reasonable hypothesis consistent with his innocence. The respondent contended that the evidence supported the findings that the truck was travelling at about 80 kilometres per hour just before it entered the bend, and that the heavy vehicle mark was caused by the truck. The central legal issues were whether the verdict was unreasonable or not supportable in light of the evidence and whether the sentence was manifestly excessive or inadequate.

The court examined the evidence and found that the primary judge's findings were supported by the evidence. The court held that the appellant's truck was travelling at a speed that made it dangerous to negotiate the bend, particularly when towing an empty trailer, given the poor road conditions and the likelihood of oncoming traffic. The court also concluded that the appellant's history of traffic offences and cavalier attitude to operating his vehicles at a safe speed warranted a severe sentence. However, the court found that the sentence was manifestly excessive in the circumstances. The court considered the appellant's age, his significant history of traffic offences, and the fact that he had not caused any prior accidents, and determined that a suspended sentence would be appropriate.

The court dismissed the appeal against conviction and granted leave to appeal against sentence. The appeal against sentence was allowed, and the original sentence was set aside. The appellant was sentenced to three years' imprisonment, suspended forthwith for an operable period of three years. The appellant was also disqualified from holding or obtaining a driver's licence for a period of two years from the date of his conviction, and a conviction was recorded.

Orders

Orders of the court

1. The appeal against conviction be dismissed.

2. Leave to appeal against sentence be granted.

3. The appeal against sentence be allowed.

4. The sentence below be set aside.

5. The appellant be sentenced to three years’ imprisonment, suspended forthwith for an operable period of three years.

6. A conviction be recorded.

7. The appellant be disqualified from holding or obtaining a driver’s licence for a period of two years from the date of his conviction.

Background

Background to the litigation

The sole ground of appeal against sentence, should leave be given, is that the sentence was manifestly excessive in all the circumstances.Background The appellant was born on 17 October 1952. He was aged 64 at the time of the offence. He was 68 when sentenced. The appellant was a full-time heavy vehicle driver. The deceased was a bus driver. The offence was committed on 17 November 2016. On that date, the appellant was driving an unladen Mercedes Benz Actros Tipping Truck (the truck), towing a Hamelax White Tipping Trailer (the trailer). The deceased was driving a council passenger bus, travelling in the opposite direction. The deceased died from injuries suffered when the front driver’s side of the bus was struck by the trailer attached to the appellant’s truck. It was not in dispute at trial that the collision occurred, when the trailer travelled across the dividing white line into the path of the bus being driven by the deceased. It was also not in dispute at trial that the brakes of the tip trailer (not the truck) activated, locking up its wheels, with the consequence that the tip trailer skidded across the surface of the roadway into the path of the deceased’s bus. The central issue at trial was the cause of the brakes of the tip trailer activating and locking up immediately prior to the collision. The Crown case at trial was that the trailer brakes locked up after the automatic stability control mechanism on the truck (SR) activated and that the activation of the SR was caused by the appellant travelling into the bend at an excessive speed.[1][1]An alternate case put by the Crown, that the brakes had been activated by the appellant, was specifically not accepted by the trial Judge. The defence case at trial was that the Crown could not exclude, beyond reasonable doubt, a reasonable hypothesis consistent with innocence, namely, that the trailer brakes locked up when a different system on the truck, the automated brake assist (ABA), activated when that system incorrectly identified the bus as an obstruction. Such a hypothesis was said to arise on the evidence as the appellant said in a police interview that he heard an audible alarm shortly prior to the collision. The appellant gave a similar account in evidence at trial.Evidence The collision occurred shortly after 9 am on 17 November 2016 on Waterford-Tamborine Road at Yarrabilba. The roadway at the point of the collision contained a single carriageway each direction, divided by white lines. At the time of collision, the weather was fine and sunny and the road was dry. Dash camera footage from the appellant’s truck revealed only moderate traffic was travelling in each direction. The collision occurred as the appellant’s truck came out of a curved section of roadway. The designated speed limit in that area was 80 kilometres per hour in both directions. There was, however, an advisory sign facing drivers entering that bend, recommending a speed of 40 kilometres per hour. It was not in dispute at trial that the appellant’s truck, for the period shortly prior to the collision, was driving at an average speed of just under 80 kilometres per hour and that the bus was travelling at 67 kilometres per hour seconds prior to the collision.

Evidence

Evidence Before The Court

The defence case at trial was that the Crown could not exclude, beyond reasonable doubt, a reasonable hypothesis consistent with innocence, namely, that the trailer brakes locked up when a different system on the truck, the automated brake assist (ABA), activated when that system incorrectly identified the bus as an obstruction. Such a hypothesis was said to arise on the evidence as the appellant said in a police interview that he heard an audible alarm shortly prior to the collision. The appellant gave a similar account in evidence at trial.Evidence The collision occurred shortly after 9 am on 17 November 2016 on Waterford-Tamborine Road at Yarrabilba. The roadway at the point of the collision contained a single carriageway each direction, divided by white lines. At the time of collision, the weather was fine and sunny and the road was dry. Dash camera footage from the appellant’s truck revealed only moderate traffic was travelling in each direction. The collision occurred as the appellant’s truck came out of a curved section of roadway. The designated speed limit in that area was 80 kilometres per hour in both directions. There was, however, an advisory sign facing drivers entering that bend, recommending a speed of 40 kilometres per hour. It was not in dispute at trial that the appellant’s truck, for the period shortly prior to the collision, was driving at an average speed of just under 80 kilometres per hour and that the bus was travelling at 67 kilometres per hour seconds prior to the collision. Anthony Simpson, a bus driver, was sitting in the left front passenger seat of the bus, just behind the entrance stairwell. He had a clear view of the road out of the large front windscreen. The bus slowed as it approached a bend in the road. At that point, he saw a truck coming in the opposite direction “fast”.[2] Its right front wheels were very near to the centre double white lines. He then saw the driver of the truck “reef” the wheel to the left “to try and avoid having the cab of the truck hit the bus directly”.[3] The trailer following the truck lost traction and slid out, connecting with the right front side of the bus. The truck “was travelling at such a speed that you could see the vehicle was leaning as it came through the apex of the corner, that it was almost out of control … .”[4] The driver’s side was “sagging to the right-hand side”.[5][2]AB391/10.[3]AB391/15-17.[4]Ibid.[5]AB392/22. In cross-examination, Simpson estimated the bus was travelling at 40 to 45 kilometres per hour at the point of collision. He agreed he only saw the truck for a short time. The “reef” undertaken by the driver was turning the wheel suddenly. At that point, the trailer was still tracking with the truck and had not lost traction. Simpson did not accept that dash camera footage from the truck evidenced that the truck never crossed the centre lines. The truck came onto the double white lines. Grace Ivory was also travelling in the bus, sitting on its right side about seven seats back from the entrance. She was talking to a friend on the telephone but looking straight ahead, with a clear view of the windscreen. At about 200 metres before the bend, Ivory observed a truck approaching the corner “at speed”.[6] Its front right wheel crossed the double white lines and the truck appeared to be travelling on the white lines. The truck started to brake as it came out of the bend. At that point, the trailer started to swing out into the lane of the bus, striking the right hand front of the bus.[6]AB398/46.

Decision

Reasons for decision

Stephen Smith, a commercial vehicle brake system designer, opined that the marks on the side walls of the front right hand wheels of the truck could equally be the result of the tyres being underinflated. There was no evidence whether anybody had checked, after the collision, whether the tyres were properly inflated. Smith further opined that this particular trailer had a predisposition to lock the brakes, particularly when unladen. The existence of different sized brake chambers may have an indirect effect on the shifting of the weight to other wheels, changing the centre of gravity of the trailer. An earlier lock up of those wheels may explain why there was one set of skid marks on the road that was longer than the others in this collision.Decision The primary Judge found that the truck was travelling at a little less than 80 kilometres per hour as it entered the bend and continued at that speed as it rounded the bend until the trailer started skidding. The primary Judge accepted the truck was situated towards the centre of its lane just before it entered the bend, but found it moved towards the left just after the bus came fully into view. The primary Judge did not accept that the truck’s wheels were on or over the centre white lines. At all times, the truck travelled within its lane. The primary Judge also found that the appellant had not “reefed” the steering wheel to the left in a manner and at a time that caused or contributed to the loss of control of the trailer. The primary Judge found that the heavy vehicle mark was made by the front right wheel of the truck as it rounded the bend as a consequence of the truck’s weight shifting to the right side. The primary Judge noted that the dash camera footage evidenced the truck bumping as it went over clear defects in the road, consistent with the front right wheels being in a position to cause the heavy vehicle mark as they rounded the bend under considerable lateral force to the right. The heavy vehicle mark on the road and the corresponding marks on the tyres indicated both the path of the travel of the truck and that it was travelling at a speed which caused its weight to shift substantially to the front right side wheels. That shift was consistent with the speed being excessive for the curve. The primary Judge found it was dangerous for the appellant to attempt to negotiate that bend at about 80 kilometres per hour, particularly when towing an empty trailer, and when he knew the road conditions were poor and there was a likelihood of meeting oncoming traffic as he rounded the bend. The primary Judge was satisfied beyond reasonable doubt that the appellant had operated the vehicle dangerously. The primary Judge further found that the trailer’s movement onto the opposite side of the road was caused by the speed and angle of its path around the bend exacerbated by a locking up of its brakes, such that it lost traction. Whilst there was evidence that it could not be 100 per cent certain that the ABA did not react to the bus travelling on the curve, the timing it took to travel around the curve was such that the ABA did not have time to go through its stages to apply the full brakes. The primary Judge did not accept that the ABA system would have mistaken the bus for crossing or stationary traffic and was satisfied beyond reasonable doubt that the ABA did not actuate the truck’s brakes.

Ratio Decidendi

Legal Principle Established

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