Wong v The Queen
[2011] NSWCCA 94
•21 April 2011
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Wong v R [2011] NSWCCA 94 Hearing dates: 5 April 2011 Decision date: 21 April 2011 Before: Macfarlan JA at [1]
Hoeben J at [71]
Garling J at [72]Decision: (1) Grant leave to the appellant Thomas See Yue Wong to appeal against his conviction of an offence under Crimes Act 1900 s 52A(1)(c) alleged to have been committed by him on 29 August 2006.
(2) Allow the appeal.
(3) Quash the conviction.
(4) Direct that a judgment and verdict of acquittal be entered.
Catchwords: CRIMINAL LAW - conviction appeal - dangerous driving occasioning death - appellant's vehicle entered intersection and collided with vehicle turning across appellant's path - whether jury verdict unreasonable - whether open to jury to be satisfied beyond reasonable doubt that appellant entered intersection against a red light - conviction quashed Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912Cases Cited: M v R [1994] HCA 63; (1994) 181 CLR 487
Rasic v R [2009] NSWCCA 202
R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8Category: Principal judgment Parties: Thomas See Yue Wong (Appellant)
Regina (Respondent)Representation: Counsel:
S Odgers SC (Appellant)
D Arnott SC (Crown/Respondent)
Solicitors:
S O'Connor (Legal Aid Commission) (Appellant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
File Number(s): CCA 2007/15361 Decision under appeal
- Date of Decision:
- 2010-03-05 00:00:00
- Before:
- North DCJ
- File Number(s):
- 2007/15361
Judgment
MACFARLAN JA : At about 3.15 pm on Tuesday 29 August 2006 a tragic accident occurred in Pennant Hills at the intersection of Pennant Hills Road with Copeland and Eaton Roads. A red Mazda car driven by Ms Kate Dodd and a black BMW sports car driven by the applicant collided. Ms Dodd died, apparently instantaneously, as a result of the injuries she sustained in the collision.
At the time of the collision Ms Dodd was turning right from a dedicated right hand turn lane on the northbound side of Pennant Hills Road into Copeland Road. The applicant was driving south on Pennant Hills Road. The cars collided on the southbound side of the intersection.
The applicant was charged with driving in a manner dangerous to another person or persons that occasioned the death of Ms Dodd ( Crimes Act 1900, s 52(A)(1)(c)). A jury found him guilty of this offence at a trial that took place in January 2008, but on 15 April 2009 this Court quashed his conviction and ordered a new trial ([2009] NSWCCA 101). The present application is one by the applicant for leave to appeal against his conviction at a further trial that occurred in February and March 2010. The sole ground of appeal is that the jury verdict of guilty of the offence charged was unreasonable ( Criminal Appeal Act 1912, s 6). Because an appeal on that ground is not one on "a question of law alone" leave to appeal is required ( Criminal Appeal Act 1912, s 5(1); Rasic v R [2009] NSWCCA 202 at [12]). For reasons that appear below it is plainly appropriate that leave to appeal be granted, accordingly I shall hereafter refer to the applicant as the appellant.
There was evidence at the trial that suggested that immediately prior to the collision the appellant may have been driving at a speed in excess of the speed limit of 70 kilometres per hour but the evidence did not clearly demonstrate how far in excess of that limit he may have been driving. In these circumstances the Crown accepted at the trial that the appellant could only be convicted if the jury found that the Crown had established beyond reasonable doubt that the collision was caused by the appellant driving through a red traffic light facing him. The issue on the appeal is whether the conclusion implicit in the jury's verdict that the Crown had done that was reasonably open to the jury.
There were only two alternative views of how the collision came about that were conceivably open on the evidence. The first alternative was that Ms Dodd turned right from the dedicated right hand turn lane at a time when she had a green arrow authorising her to do that. If she had a green arrow the technical evidence indicates that the appellant must have had a red light facing him. The second alternative was that at the relevant time there was a round green light permitting northbound traffic to proceed but there was no arrow displayed to govern the right turn by Ms Dodd into Copeland Road. If that was the position Ms Dodd was entitled to turn when it was safe to do so but any southbound vehicles, in particular that of the appellant, would have had the benefit of a green light entitling them to enter the intersection. Unless the Crown established beyond reasonable doubt that the first alternative represented what occurred, the appellant was entitled to be acquitted.
Unreasonable verdict - principles to be applied
In R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8 the High Court confirmed the authority of the statements of principle made in M v R [1994] HCA 63; (1994) 181 CLR 487 concerning the role of a court of criminal appeal when considering whether a jury verdict was unreasonable or cannot be supported having regard to the evidence. These statements of principle were as follows:
"[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
...
But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations
...
It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence ( Chamberlain [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 618-619; Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 443-444; [1991] HCA 4). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (181 CLR at 493 - 5).
The appellant submitted that in accordance with these principles the appropriate course for this Court to take on the present appeal was first to review the evidence that was before the jury and to decide whether this Court has a reasonable doubt as to the appellant's guilt and, secondly, if it has such a reasonable doubt, to consider whether the fact that the jury did not have a similar doubt can be explained by any advantage that the jury had in seeing and hearing the evidence being given. I agree that this is the appropriate approach.
The intersection at which the collision occurred
Pennant Hills Road runs generally north/south. It consists of three lanes for northbound vehicles (referred to in the evidence as lanes one, two and three, numbering from the kerb out) with a fourth separate lane close to the intersection dedicated to traffic wishing to turn right into Copeland Road which intersects Pennant Hills Road from the east. Eaton Road intersects Pennant Hills Road from the west at the same intersection.
There are three lanes for southbound vehicles on Pennant Hills Road (again referred to in the evidence as lanes one, two and three numbering from the kerb out). Approaching the intersection from the north, Pennant Hills Road gradually bends to the left with a downhill grade. Prior to the intersection, southbound traffic on Pennant Hills Road passes a warning sign. When the traffic lights for the southbound traffic at the intersection are either amber or red, the lights on this sign flash and the words "PREPARE TO STOP" appear.
The weather was fine at the time that the collision occurred. Expert examination of Pennant Hills Road after the collision did not reveal any evidence that the appellant braked in or approaching the intersection.
The manner in which the traffic lights operated at the intersection is of considerable importance to the resolution of this appeal. Of particular significance are the questions of whether there was a period when the northbound traffic had no right turn arrow of any colour illuminated but did have a round green light indicating that northbound traffic could proceed and, if there was, what was the length of that period. If there had been no such period, or at least no such period of sufficient length to enable Ms Dodd to make a right turn within it, Ms Dodd must have made her turn with the authority of a green arrow, with the consequence that the appellant came southbound into the intersection through a red light. In these circumstances it was surprising that the technical evidence called about the operation of the lights did not expressly address these questions.
Mr Adrian Paul of the Roads and Traffic Authority gave evidence as to the operation of the traffic lights at the relevant time. Looking at the position principally from the point of view of traffic north and southbound on Pennant Hills Road, Mr Paul's evidence was to the following effect:
(1) During phase A both north and southbound traffic would be faced with round green lights. There were two possibilities in respect of turns into Copeland Road:
(a) If a pedestrian wishing to cross Copeland Road pressed the button available there, phase A initially gave northbound traffic on Pennant Hills Road a red arrow prohibiting a right turn into Copeland Road as well as a round green light permitting traffic to proceed north. The red arrow was displayed for six seconds (Transcript p 320.18) and the minimum period for phase A was eight seconds.
(b) If the pedestrian button on Copeland Road was not pressed, northbound traffic on Pennant Hills Road received a round green light and no right turn arrow at all (that is, not red, amber or green).
(2) If a vehicle was in or entered the dedicated right hand turn lane on the northbound side of Pennant Hills Road during phase A it activated a sensor that produced a green right turn arrow after six seconds. The six seconds comprises 4.5 seconds during which an amber light was displayed to southbound traffic on Pennant Hills Road and 1.5 seconds in which a red light was displayed in that direction but there remained no right hand turn arrow for northbound traffic (p 325.42).
(3) During phase B, northbound traffic on Pennant Hills Road had a round green light and a green right turn arrow. Southbound traffic had a round red light.
(4) During phases C and D traffic on the north and southbound sides of Pennant Hills Road had red lights to enable traffic on the cross streets to proceed.
(5) Phases B, C and D would be skipped if sensors did not indicate that there was traffic needing them to occur.
The effect of this evidence is that if the Copeland Road pedestrian button was not pressed there would be at least 14 seconds after the commencement of phase A during which northbound traffic on Pennant Hills Road had a round green light, but no arrow, and southbound traffic did not have a red light: eight seconds representing the minimum length of phase A, 4.5 seconds representing the period of display of an amber light to southbound traffic and 1.5 seconds during which southbound traffic had a red light but northbound turning traffic had not yet been given a green arrow.
If the Copeland Road pedestrian button was pushed, the period would be 8 seconds, representing the addition of 2 seconds (being the 8 second minimum length of phase A less the 6 seconds that a red arrow was displayed) to the periods of 4.5 and 1.5 seconds just referred to.
I emphasise that these time periods that may be deduced from the evidence are minimum periods. The evidence did not exclude the possibility that the periods were longer. As a result I consider that this appeal needs to be approached upon the basis that after the northbound traffic's red right turn arrow was extinguished (either when northbound traffic received a round green signal at the commencement of phase A or, if the Copeland Road pedestrian button was pushed, after the red arrow referable to that was extinguished) there was a period of time before the right turn lane received a green arrow in which no arrow was displayed but it was permissible to turn if care were exercised. The Crown implicitly accepted that this was appropriate. The critical question on the appeal is whether the Crown proved beyond reasonable doubt that Ms Dodd did not turn in this period but waited until the green arrow was displayed.
Before leaving this description of the sequence of the traffic lights I note that it follows from the above that there was no point at which a red right turn arrow for northbound traffic on Pennant Hills Road would have been followed immediately by a green right turn arrow. There would always have been a period in between in which no arrow was displayed.
The evidence given at the trial
At the trial nine witnesses gave evidence of the collision.
Five of these witnesses were drivers of vehicles heading north on Pennant Hills Road:
Mr Ryan Lawes (driving a car in lane three).
Mr Stephen O'Neill (driving a car that was next but one behind Ms
Dodd's car in the right hand turn lane).
Mr Neville Conway (driving a semi-trailer in lane one).
Mr Darryl Davison (driving a car that went into the right hand lane immediately behind Ms Dodd's car)
Mr Scott Matheson (driving a van in lane three).
Two of the witnesses were drivers of vehicles heading west from Copeland Road into the intersection. They were Mr Jeremy Hampson and Ms Yan Oi To.
Ms Jane Bianchini was in Eaton Road heading east into the intersection and Ms Donna Rice was driving south on Pennant Hills Road.
It is convenient to refer to the evidence of these witnesses in the order in which that evidence is dealt with in the appellant's submissions.
Mr Ryan Lawes
Mr Lawes said that as his car approached the intersection from the south, northbound traffic had a round green light and a red right turn arrow. He said that traffic in the southbound lanes was "slowing down to come to a halt" (Transcript p 118.24). Lane one there was empty, lane two had a car in it and lane three had a truck in it. He saw traffic in the northbound right hand turn lane. He saw the first car in that lane, a red Mazda, "move off once it got the green arrow" (p 120.1). He said that when he "first noticed that the cars were coming to a slow down stop the cars in the right-hand turn lane were still stationary" but that as he got closer to the intersection the red right hand turn arrow changed into a green right hand turn arrow (p 119). When he first saw the appellant's black BMW travelling southbound it was coming from lane one, with the truck stationary in lane three and the car stationary in lane two (p 120). In cross-examination he confirmed that his evidence was that he had seen the red arrow change (by implication, directly) to a green arrow and that in the long period for which he had been familiar with this intersection "I've never seen it change any other way" (p 123).
This evidence supported the Crown case that Ms Dodd turned whilst the green arrow was displayed. However, there is some doubt as to the reliability of Mr Lawes' observations as he was mistaken in believing that the red turn arrow changed directly to a green turn arrow, as he indicated that it had always done. In fact there was always an intervening period when no arrow was displayed.
His evidence that he saw a southbound truck and car coming to a halt and stopping before Ms Dodd turned also supported the Crown case. If this occurred, the only sensible inference is that these vehicles were responding to an amber or red light. On the appeal the appellant suggested that Mr Lawes may have been mistaken in his recollection and that his observation of the truck and car may have related to the preceding D phase (when both northbound and southbound traffic had round red lights) or to the position immediately after the accident.
Stephen O'Neill
Mr O'Neill was driving north on Pennant Hills Road in his black Citro n. He drove into the dedicated right hand turn lane. There were two cars in front of him in that lane, with the red Mazda being the first. Northbound traffic at that time had a round red light and a red arrow (the lights presumably then being in phase C or D). The round red light changed to green but the red arrow remained "for about probably a minute" (p 186.49) until the red arrow went out, so that there was no arrow at all. He said that none of the cars in the right turn lane moved at that stage. He then saw southbound traffic coming to a stop, a truck being in lane three and another vehicle in lane two. The green right turn arrow then came on and the Mazda moved into the intersection, colliding with a black BMW which came from lane one and was "absolutely flying" (p 188.27). In cross-examination he adhered to his evidence that the red Mazda did not turn until the green turn arrow was displayed.
As the appellant pointed out on the appeal, various time estimates given by Mr O'Neill were undoubtedly wrong. For example he said that the red arrow was displayed when the round light was green "for definitely a minute" (p 191.33) when that period would only have been six seconds. Nevertheless little significance can be attributed to errors in time estimates in evidence such as this. It is well known that even witnesses who give otherwise reliable evidence can give grossly inaccurate estimates of time.
On the question of the reliability of Mr O'Neill's evidence, the appellant pointed to the fact that Mr O'Neill said that as a result of the collision the appellant's black BMW "rotated in the air literally above [Mr O'Neill's] car" (p 188.46), when this undoubtedly did not occur. Again this is a point of only limited significance as the trauma of witnessing close hand an accident such as occurred here can easily distort perceptions of the path taken by vehicles after they have collided.
Mr O'Neill's evidence strongly supported the Crown's case.
Neville Conway
Mr Conway was driving his semi-trailer northbound in lane one. He said that as he approached the intersection he had a round green light and that, so far as signals for traffic turning right into Copeland Road were concerned, "the green arrow turned green and the southbound traffic was stopping" (p 130.24). He saw a red Mazda or Honda (which would have been Ms Dodd's car) "cruising slowly" (p 131.1) into the right hand lane to turn right. When it had done this it "got the green arrow" (p 131.5), apparently without the need to stop. The car then turned, resulting in the collision with the appellant's BMW.
When asked whether he observed any southbound traffic, Mr Conway said:
"I did, but the main reason why I saw the black car hit the red car was I was stopped and having trucks of my own over the years, all scrolling and sign written and that, I noticed a semi trailer parked which had curtains and like muralled (?) curtains and all the scroll work and that on it was quite picturesque, so it caught my eye" (p 131.49).
He said that this semitrailer was stopped in lane three and that there were "cars parked next to [it] in lane two" (p 132.16).
As the appellant points out, Mr Conway's evidence that his vehicle was stationary at the time of the collision is difficult to reconcile with his evidence that he had a round green light as he approached the intersection and was proceeding through it. As the appellant submits, Mr Conway may have been referring to his truck stopping after the collision occurred but if that is so, it is difficult to imagine that he would have taken the time to admire the "picturesque" semi-trailer stopped in a southbound lane.
After the collision Mr Conway approached the black BMW. He recalls the driver (the appellant) saying "I had the green arrow". Mr Conway said that he was furious and said "[b]ullshit" in response (p 133.42).
The appellant submits that there is reason to doubt the reliability of Mr Conway's evidence because, based upon other evidence, he appears to be wrong in suggesting that Ms Dodd drove into the right hand turn lane and proceeded to turn right without stopping, in suggesting that there was in front of Ms Dodd's vehicle another vehicle that turned in front of her and in asserting that the appellant's BMW went through the air "for some 100 yards before it landed" (p 133.19). The appellant also points to the fact that whilst Mr Conway at a number of points in his evidence said that Ms Dodd had a green arrow when she turned, at one stage he gave more qualified evidence by saying that he was "[p]retty sure" that this was the case. The context in which he said this was as follows:
"Q. Just stopping you there. What was the traffic signal for the right hand turning lane when the red car began to turn. Can you recall?
A. It was green.
Q. Can you tell us whether it was a circle symbol or an arrow?
A. Pretty sure it was a green arrow" (p 131).
Jane Bianchini
Ms Bianchini was in Eaton Road heading east. When she approached the intersection she had a round red light facing her. She said that at that time there were cars travelling north on Pennant Hills Road and that there were two southbound vehicles stopped in lanes two and three. She thought that the vehicle in lane three was a large truck or a semi-trailer. The traffic was still proceeding on the northbound side when the accident happened. She saw a black car come "extremely fast" southbound in the kerbside lane, resulting in a crash "in the middle of the intersection" (p 232).
In cross-examination she was asked how she could see the black car if there was a semi-trailer stopped in lane three. In response she appeared to indicate that she only saw the black car when it emerged into the intersection (p 235). She agreed that in her statement to the police she had said " I think there were vehicles stopped in the southbound lanes" (emphasis added) (p 236.47).
On the appeal the appellant submitted that when Ms Bianchini was asked to identify the period during which she had observed the stopped southbound traffic she had said "a minute or so" (the full answer was: "I'm not one hundred percent sure. I'd be guessing here. I'm not sure, a minute or so"). The appellant then submitted that as, on the Crown case, Ms Dodd commenced her turn as soon as the green arrow appeared, the southbound traffic could only have been stopped for a matter of seconds at most. This, he submitted, made it likely that Ms Bianchini saw the stopped vehicles during the preceding D phase, when traffic turning right from Copeland Road into Pennant Hills Road in front of Ms Bianchini had a green light or arrow whilst Ms Bianchini in Eaton Road had a red light. On this hypothesis the two stopped southbound vehicles would have moved through the intersection when the lights changed to phase A (shortly before the accident).
Interim comment on witnesses
In his submissions on the appeal senior counsel for the appellant recognised that if the above described evidence had been the only evidence before the jury, his task in upsetting the verdict would have been a difficult one, despite the fact that there were, as described above, some issues relevant to the reliability of this evidence and that none of the witnesses (I add, with the possible exception of Mr O'Neill) had any particular reason to pay close regard to the status of the right turn traffic lights or to what the southbound traffic was doing.
Darryl Davison
Mr Davison was in a seven seater vehicle taking his son to an appointment with a dermatologist. As he was not familiar with the roads in the area, he had sought directions from the dermatologist's secretary. He had been told that he should drive north on Pennant Hills Road and turn right into Copeland Road. His evidence was that the secretary said "when I got to [the relevant] intersection to wait at the intersection until the green arrow to [turn] right onto Copeland [appeared]. She said to wait for the green arrow because cars have been known to fly around that intersection" (p 156.15).
Mr Davison said that when he pulled into the right hand turn lane a "red small sporty type car" (clearly that of Ms Dodd) was the only car in front of him. He said "I was looking at the lights waiting. They were green, as I recall, and I was waiting for the green arrow to turn" (p 157.18). He said that after he had been stationary for a few seconds "[t]he road was clear for a right hand turn and the red car in front of me proceeded to go across towards Copeland Road" (p 157.29). He then said:
"The car was probably a car's length across the intersection going towards Copeland Road when I saw a black car, BMW, come from the north heading south" (p 157.46).
He said that he did not see any other cars in the southbound lanes and that the BMW appeared to be in the "very kerbside lane" and was going "very fast" just before it collided with the red car (p 158).
In cross-examination Mr Davison confirmed that no green arrow was displayed when the red car turned right and that he was particularly concerned to look for a green arrow because he did not intend to turn before it appeared. He also confirmed that it was clear in his memory that there were no vehicles stationary in the southbound lanes at the time that the red car turned (p 162.46).
This was strong evidence in support of the appellant's case. The transcript of Mr Davison's evidence does not reveal any particular reason why his evidence should have been regarded as unreliable. Indeed, unlike all of the other witnesses, except perhaps Mr O'Neill, Mr Davison had a reason to watch for the display of the green arrow. Being directly behind Ms Dodd, he had to decide whether to follow her in circumstances in which he had been warned not to turn unless the green arrow was displayed. Being a car further back, the time for Mr O'Neill to make a decision whether to turn was not as imminent. Further, unlike Mr Davison, Mr O'Neill had not had anyone emphasise to him a need to wait for the green arrow.
Scott Matheson
Shortly prior to the collision Mr Matheson was driving a light van north in lane three. As the lights displayed for northbound traffic were a round red light and a red arrow (that is, phase C or D) he came to a stop. He was "two or three cars, four cars" (p 174.38) back from the intersection. He said that there was a black Citro n in front of him (p 174). This was presumably a reference to Mr O'Neill's car although, in light of Mr O'Neill's evidence that he was in the right turn lane, Mr Matheson was probably mistaken in recalling that the black Citro n was in front of him. Mr Matheson said that he could see traffic stopped in lanes two and three on the southbound side. There were no vehicles in lane one.
Mr Matheson said that he did not see the lights facing him change but cars in the right hand turn lane started to move off. As they did so he put his van into first gear ready to proceed when he got a green light. Before he could do so, the collision occurred (p 176). He did not notice what the traffic signal was for the right turn lane immediately before the collision (p 176.48)
On one view of Mr Matheson's evidence he indicated that there was a round red light facing him even after the cars in the right hand turn lane commenced to turn. In light of the known sequence of the traffic lights at this intersection, this cannot have been correct. If the cars commenced to turn because there was no arrow or because they had a green arrow, there must have been a round green light displayed to the traffic wishing to travel north. The better view of what happened is therefore that Mr Matheson did not notice (or at least could not recall that he noticed) that the illuminated round light changed from red to green but did notice that cars were starting to move off in the right turn lane. In these circumstances it is understandable that he immediately started readying his vehicle to move off.
It is not surprising that Mr Matheson might not have noticed a change in the round traffic lights from red to green as he was a number of cars back from the intersection and could well have taken his cue to get ready to move from the movement of vehicles in front of him rather than the traffic lights.
Seen in this way Mr Matheson's evidence provides some support for the appellant's case. His evidence suggests that he was waiting at the intersection when the lights were in phase D (or possibly phase C), that the lights changed to give him a round green light to proceed and to permit cars to turn right into Copeland Road and that the cars in the right hand turn lane started moving forward. The fact that on his evidence the collision between the BMW and Mazda occurred almost immediately after the lights changed, that is, before Mr Matheson got his vehicle moving, suggests that the collision occurred in the "no arrow" period rather than in the green arrow period.
His evidence concerning southbound vehicles is also, on balance, supportive of the appellant's case rather than the Crown's case. He saw southbound vehicles stopped at the intersection when he arrived there. This was whilst the lights were in phase D (or perhaps C) and before they changed to phase A. These vehicles can be expected to have moved off when the lights changed to phase A and they were thus given a round green light to proceed south. This view is consistent with Mr Matheson not noticing any vehicles in the southbound lanes immediately after the accident (p 180.35) and giving evidence that the last time he recalled seeing cars stopped in the southbound lanes was "[m]aybe 20, 30 seconds [before the accident]" (p 182).
Donna Rice
Ms Rice lived in a house on Pennant Hills Road a short distance north of that road's intersection with Copeland Road. Shortly prior to the accident, she reversed out of her driveway onto Pennant Hills Road to travel south. She said that as she proceeded south at about 50 kilometres per hour in the kerbside lane "a black BMW came racing past me at a very fast speed" (p 217.41). The BMW remained in her sight and she saw ahead the impact of the BMW with another car. In a state of shock she stopped her car a few metres back from the traffic lights and then a few moments later moved up to them, where she stopped again. At that point she said that "a lady came behind me and bipped her horn for me to move" (p 221.3). She said that when she observed the collision there was no other traffic in front of her (p 221.10) and there were no cars stopped at the intersection when she arrived there (p 224.20). She confirmed in cross-examination that she had been in a position to observe the BMW's path at all times (p 224.4).
Ms Rice did not recall what traffic lights were displayed at the time of the collision and did not notice whether any warning lights were showing on the sign she passed on her way to from the intersection. Whilst her evidence was that she did not notice the state of the sign one way or the other, the fact that she did not observe that there were any flashing lights on it is of some significance because the sign was no doubt designed to attract the attention of southbound drivers when the lights were flashing, and not simply to be there for drivers who wish to inspect it. The fact that Ms Rice did not observe the warning sign flashing provides some basis for thinking that it was not in fact flashing and that Ms Dodd therefore turned during a 'no arrow' period rather than a green arrow period.
Overall Ms Rice's evidence assisted the appellant's case that there was no stopped southbound traffic at the time of the collision, and to a limited extent, supported his case that he did not drive through a red light.
Jeremy Hampson
At the time of the collision Mr Hampson was waiting in his car at the front of one the westbound lanes of Copeland Road. He was intending to head into the intersection when he received a green light. However, before that happened he saw the appellant's car "flying through the intersection" and the collision occur (p 202.35). He said that he did not see any other vehicles in the southbound lanes (p 202.49) but he had no reason to pay attention to what was happening in the southbound lanes and he did not appear to do so.
His evidence was of marginal assistance to the appellant's case. It did not assist the Crown's case.
Yan Oi To
At the time of the collision Ms To, who gave evidence in part through an interpreter, was stationary in one of the westbound lanes on Copeland Road, waiting for a green light to permit her to proceed into the intersection. She saw the appellant's car collide with Ms Dodd's car.
Ms To gave evidence that she saw a truck and another car in two of the southbound lanes on Pennant Hills Road but she made this observation after the accident occurred when she looked back from the site of the collision to her right (for example p 95.11, 106.1, 110.47).
She had no particular reason to observe the state of the southbound traffic. It is conceivable that her memory of vehicles stationary in the southbound lanes related to a point of time before the traffic lights went into phase A (that is, when they were in phase C or D displaying a red light to southbound traffic) and that the vehicles moved off before Ms Dodd's car turned right from Pennant Hills Road. Alternatively it is possible that the vehicles arrived at the intersection just after the collision but before Ms To turned to see them, although she did say that she turned to look "straightaway" (p 110.47). In any event, she was not able to say that the vehicles were there at the time of the collision and her evidence did not assist the Crown's case. Neither did it assist to the appellant's case in any significant fashion.
The appellant
The appellant gave evidence that when he was driving south on Pennant Hills Road he passed a car on his left (presumably that of Ms Rice). He said that the warning sign in advance of the traffic lights was not flashing and that the traffic light facing him was green as he approached the intersection. He saw the red Mazda move forward, ready to turn, but did not consider that it was going to turn in front of him.
He said that by the time he realised that it was in fact going to turn in front of him there was nothing he could do to avoid a collision. He said that he had been "doing around the speed limit which was 70 kilometres per hour" when he was some way back from the intersection and that he did not consciously accelerate his vehicle towards the intersection but "just let the vehicle coast on whatever momentum it previously had" down towards the intersection (p 526). He said that as he approached the intersection there were no other southbound vehicles present.
The expert witnesses
Each party called two experts to give evidence, principally concerning the paths of the black BMW and the red Mazda, and the speed at which the BMW was travelling.
On the appeal senior counsel for the appellant submitted that on one view the expert evidence demonstrated that the appellant's vehicle could not have come from lane one but must have come from one of the other lanes, with the consequence that the evidence that there were stationary vehicles in the other two lanes could not be accepted. He submitted that the only other available view of the expert evidence was that it showed that the appellant's vehicle might have come from lane one. He submitted that on that view the evidence did not assist either case.
The Crown sought to contradict this description of the effect of the expert evidence only to the extent of referring to one piece of that evidence (at p 461.8) suggesting that the appellant's car would have been "starting to do a nice drift" as a result of coming through the curve preceding the intersection. The Crown submitted that this drift made it more likely that the appellant's car came from lane one (rather than lanes two or three where there were alleged to be stationary vehicles) to reach the point of collision. This is in my view a minor point only and sheds no significant light on whether there were vehicles stationary in lanes two and three and whether the appellant drove through a red light.
In light of the submissions made (and not made) concerning the expert evidence I do not consider that it is relevant to the determination of this appeal.
Conclusions
It will be apparent from my description of, and comments on, the evidence given by the nine witnesses to the collision that having reviewed the evidence I have at least a reasonable doubt as to the guilt of the appellant. To use the language of the High Court in M v R , in my view "even making allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted" (see [6] above).
Mr Davison in particular gave evidence of circumstances that were inconsistent with the guilt of the appellant. He had a clear recollection that no right turn arrow was displayed to Ms Dodd when she proceeded to turn right. If Ms Dodd did not have the benefit of a green arrow, the undisputed technical evidence given by Mr Paul of the RTA indicated that immediately prior to the collision the appellant would have had a green light allowing him to enter the intersection. A conclusion that the appellant was driving in excess of the speed limit would not have been sufficient to justify his conviction because the Crown accepted at the trial that the appellant could and should only be convicted if the jury were satisfied beyond reasonable doubt that he drove through a red light before colliding with Ms Dodd's car.
There were no obvious features of Mr Davison's evidence that suggested that it may be unreliable although, as with any witness who observes at close hand a traumatic and violent event such as occurred here, the possibility of inaccuracy in recollection exists. Nevertheless, much in favour of the reliability of Mr Davison's evidence is the fact, as pointed out earlier, that he had a particular reason to note whether a green right turn arrow had come on at the relevant time (see [38] above).
For the reasons given earlier, the evidence of Mr Matheson, Ms Rice, and to a limited extent, Mr Hampson likewise provided positive support for the appellant's evidence that he had a green light when he entered the intersection. Of lesser significance, but nevertheless relevant, is the fact that there were features of the evidence of the remaining witnesses of significance, other than Mr O'Neill, (being Mr Lawes, Mr Conway and Ms Bianchini) that cast some doubts as to the reliability of their recollections. There were no particular features of Mr O'Neill's evidence that raised concerns as to its reliability. In his case there is only the caveat to which I have earlier referred as to the evidence of all close hand witnesses to traumatic and violent events.
The task of this Court is not of course to weigh the evidence supporting the different views of what occurred and to decide which view should be accepted. It is sufficient for the appellant to satisfy me, as he has done, that the evidence gave rise to a reasonable doubt as to whether the Crown's case was correct. He has done this by pointing to evidence of apparent reliability that supports an explanation of how this tragic accident occurred which does not involve the appellant having proceeded through a red light. In short, that explanation is that Ms Dodd started to turn right from Pennant Hills Road at a time when she was entitled to do so if the turn could be made with safety but without the benefit of a green arrow that would have been matched with a red light being displayed to southbound vehicles (including that of the appellant). Common experience tells one that this is not an uncommon situation in which accidents occur. It contrasts with the situation postulated by the Crown case. That is, one where a sober driver (as the appellant can be assumed to have been) drives at speed past vehicles stationary in the other lanes of the carriageway on which he was travelling and through a red light to collide with a vehicle turning across his path.
I do not consider that the jury's failure to have the reasonable doubt that I have can be explained by any advantage that the jury had over this Court in seeing and hearing the evidence being adduced, or otherwise. Such an advantage does not only exist where (as did not occur in this case) the honesty of witnesses is impugned. The jury have an advantage where reliability rather than credibility is in issue but, bearing in mind the nature of the evidence given in this case, I do not consider that any limited advantage that existed could explain why the jury did not have a reasonable doubt as to the appellant's guilt. In fact this is a case in which this Court is in a somewhat better position than the jury in relation to the significant technical evidence given by Mr Paul as to the sequence of the traffic lights. In large measure that evidence was given orally. The detail of it required careful consideration and analysis. With the benefit of the transcript this Court was able to undertake that task. The jury did not have that transcript to enable it to do that.
For the reasons I have given, the verdict of the jury was unreasonable. As a result the appellant's conviction must be quashed. As the appellant has already been tried twice and the Crown has not suggested that there is any prospect of additional evidence being available to it, no further trial should be ordered and a verdict of acquittal should be entred.
I propose the following orders:
(1) Grant leave to the appellant Thomas See Yue Wong to appeal against his conviction of an offence under Crimes Act 1900 s 52A(1)(c) alleged to have been committed by him on 29 August 2006.
(2) Allow the appeal.
(3) Quash the conviction.
(4) Direct that a judgment and verdict of acquittal be entered.
HOEBEN J : I agree with Macfarlan JA.
GARLING J : I agree with Macfarlan JA.
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Decision last updated: 28 April 2011
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