R v Wells

[2016] NSWDC 169

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Wells [2016] NSWDC 169
Hearing dates:	15 August 2016
Date of orders:	17 August 2016
Decision date:	17 August 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The accused is found guilty of the 2 back up charges on the s 166 certificate
Catchwords:	CRIMINAL LAW – Back up charges after acquittal at trial – Negligent driving occasioning death – Not give way when making a U-turn – Emergency vehicle – Negligence – Causation – Entering the overtaking lane of a freeway when car approaching – Failing to wait for approaching car to pass
Legislation Cited:	Rural Fires Act Criminal Procedure Act Australian Road Rules
Cases Cited:	Cameron v R unrep NSWCCA 27 Sep 1994 DPP v Yeo & Anor [2008] NSWCSC 953 Royall v The Queen (1990) 172 CLR 378) Thabo-Meli v R [1954] 1 WLR 228
Category:	Principal judgment
Parties:	The Crown Ian Jeffrey Wells
Representation:	Counsel: R Cooley – The Crown M Higgins – The Accused   Solicitors: Director of Public Prosecutions Crown Solicitor’s Office - Accused
File Number(s):	2013/44288

Judgment

Introduction

1. In May this year I presided over a jury trial in which the accused, Ian Jeffrey Wells was charged with 2 offences. The first was an offence of dangerous driving occasioning the death of Mrs Katina Mihailidis and the second was an offence of dangerous driving occasioning grievous bodily harm to Mr Peter Mihailidis. The accused was acquitted on both counts.

2. With the consent of Mr Wells, and pursuant to s 166 of the Criminal Procedure Act, I am now dealing with 2 back-up charges, an offence of negligent driving occasioning the death of Mrs Mihailidis and an offence of making a U turn without giving way to a vehicle.

3. There is no back up charge relating to the grievous bodily harm suffered by Mr Mihailidis. That circumstance apparently arises from inappropriate advice given to those who laid the charges.

4. The evidence which I will consider in determining the guilt or otherwise of Mr Wells on these 2 back up charges consists of the evidence given in the trial, both oral and documentary, supplemented by the tender in these proceedings of some further documents to which reference had been made in the earlier trial. There was also a statement of agreed facts tendered which has substantially reduced the issues for me to resolve.

Facts

5. What follows is a non-controversial outline of the events which have led to the present proceedings.

6. The accused was a volunteer rural fire-fighter with the Kariong Brigade of the Rural Fire Service (“the RFS”). One evening while at his home he was paged and, together with other RFS members, attended an incident at the Mount White weighbridge station on what was then called the F3 Freeway. Concentrated orange juice had been spilt. The accused travelled to the scene of the spillage in a RFS vehicle designated Kariong 1. That vehicle was a category 1 fire tanker which carried a…