Wells v The Queen - [2017] NSWCCA 242

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wells v R [2017] NSWCCA 242
Hearing dates: 9 August 2017
Decision date: 13 October 2017
Before: Gleeson JA at [1]
Harrison J at [2]
Button J at [3]
Decision:
(1) Leave to appeal against conviction granted to the extent necessary.
(2) Appeal against conviction dismissed.
(3) Leave to appeal against sentence granted.
(4) Appeal against sentence dismissed.

Catchwords:
CRIMINAL LAW – conviction appeal – negligent driving occasioning death – not giving way when making U-turn – where emergency vehicle – whether convictions are unreasonable and not supported by the evidence – whether trial judge erred in construction – s 42 Road Transport (Safety and Traffic Management) Act 1999 (NSW) (repealed) – rr 78 and 79 of the Road Rules 2008 (NSW) (repealed) – whether denial of procedural fairness in trial judge making findings diverging from agreed facts – appeal dismissed
SENTENCE – appeal – whether sentencing judge failed to take into account a relevant consideration – whether ICO manifestly excessive – appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1); 21A(3)(i)
Criminal Appeal Act 1912 (NSW), ss 5(1)(c); 5AA; 5AD; 6
Criminal Procedure Act 1986 (NSW), s 166
Road Rules 2008 (NSW) (repealed), rr 38; 78; 79; 306
Road Transport (Safety and Traffic Management) Act 1999 (NSW) (repealed), s 42
Rural Fires Act 1997 (NSW)
State Emergency and Rescue Management Act 1989 (NSW), s 4
Cases Cited: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
House v The King (1936) 55 CLR 499; [1936] HCA 40
R v Moffatt [2000] NSWCCA 174
R v Pogson (2012) 82 NSWLR 60
R v Wells [2016] NSWDC 169
R v Wells (No 2) [2016] NSWDC 313
Royall v R (1991) 172 CLR 378; [1991] HCA 27
Category: Principal judgment
Parties: Ian Jeffrey Wells (Applicant)
Regina (Respondent)
Representation:
Counsel:
G Craddock SC / M Higgins (Applicant)
M Cinque SC (Respondent)
Solicitors:
Crown Solicitors Office (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2013/00044288006
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court at Sydney

Jurisdiction:

Criminal

Citation:

[2016] NSWDC 169

Date of Decision:

17 August 2016

Before:

Berman SC DCJ

File Number(s):

2013/44288

Judgment

GLEESON JA: I agree with Button J.
HARRISON J: I agree with Button J.
BUTTON J:

Introduction

A little after 10.21 pm on 18 October 2012, Ian Jeffrey Wells (the appellant) was driving a Rural Fire Service fire tanker (the tanker) on the F3 freeway to the north of Sydney. The tanker collided with a Toyota Corolla sedan. A Mazda sedan then collided with the stationary Corolla. The second collision directly caused the death of Mrs Katina Mihailidis (the deceased), who was a passenger in the Corolla.
The appellant stood his trial by jury on two charges, one of which was an offence of dangerous driving causing the death of the deceased. At the end of the trial, the appellant was acquitted on all counts.
Thereafter,…

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 Wells v The Queen

Details

AGLC: Wells v The Queen [2017] NSWCCA 242
Case: [2017] NSWCCA 242
Decision Date: 13 October 2017

CaseChat Overview and Summary

The appeal before the court involved a conviction for negligent driving causing death, where the appellant, Wells, was found to have failed to give way while making a U-turn in front of an emergency vehicle. The case was heard in the NSW Court of Criminal Appeal. The appellant challenged both the conviction and the sentence imposed. The legal issues included whether the convictions were unreasonable and unsupported by the evidence, whether the trial judge erred in the interpretation of relevant sections of the Road Transport Act and the Road Rules, and whether there was a denial of procedural fairness in the trial judge’s findings diverging from agreed facts. Additionally, the appeal contested the sentence, arguing that the sentencing judge failed to take into account relevant considerations and that the imposed sentence was manifestly excessive.

The court meticulously reviewed the evidence and the trial judge’s interpretation of the statutory provisions and rules. It found no errors in the trial judge’s application of the law, and held that the convictions were both reasonable and supported by the evidence. The court also concluded that there was no denial of procedural fairness, as the trial judge’s findings were consistent with the evidence presented. The appeal against the sentence was similarly dismissed, with the court affirming that all relevant considerations were appropriately weighed by the sentencing judge, and that the sentence imposed was not manifestly excessive.

The Court of Criminal Appeal dismissed both the conviction and sentence appeals. This decision underscores the importance of adhering to road safety laws and the severe consequences of disregarding them, especially when emergency vehicles are involved. The appeal’s dismissal also highlights the deference given to the trial judge’s assessment of evidence and the weight of the sentence imposed by the original sentencing judge.

Orders