Rachael Louise BAKER v Regina [2008] NSWDC 336

New South Wales District Court

CITATION: Rachael Louise BAKER v Regina [2008] NSWDC 336

HEARING DATE(S): 30 January 2008 EX TEMPORE JUDGMENT DATE : 30 January 2008

JURISDICTION: Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Conviction Appeal - Negligent driving occasioning grievous bodily harm

LEGISLATION CITED: Road Transport (Safety & Traffic Management) Act 1999 Crimes Act 1900

PARTIES: Rachael Louise Baker The Crown

FILE NUMBER(S): DC2008/12/1411

SOLICITORS: NSW DPP Sachs Gerace Lawyers (Appellant)

JUDGMENT

1 HIS HONOUR: Rachel Baker appeals against her conviction for negligent driving occasioning grievous bodily harm. The circumstances of the collision between her and a bicycle being ridden by Mr Sweeney are difficult to describe without the use of diagrams, but I will do my best.

2 Ms Sweeney intended to turn right, she therefore had to cross the path of vehicles coming towards her. She signalled her intention to turn right, but the car coming towards her (in the opposite direction to the way she was travelling) also wanted to turn right. He had also signalled and the two vehicles came to a stop at the intersection.

3 Behind the other vehicle was Mr Sweeney on his bicycle. Precisely where he was when Ms Baker got to the intersection is unknown, but what happened was this: after something of a stand-off where both Ms Baker's vehicle and the other vehicle remained where they were, Ms Baker turned right. She said that she did not see any traffic coming in the other direction and believed it was safe to do so.

4 As she turned right, however, she saw Mr Sweeney on his bicycle. He had overtaken the other car on the left of that other car because it was stationary and turning right. Ms Baker got part way across the roadway when she saw Mr Sweeney, she immediately stopped, but although Mr Sweeney swerved he collided with the front driver's side of Ms Baker's vehicle causing him significant injuries which, there is no dispute, amounted to grievous bodily harm.

5 The magistrate convicted Ms Baker and she appealed to this court. The appeal was basically brought on two bases. The first is that the magistrate misstated the test for negligence, equating it closer to the civil standard rather than the standard applicable to an offence under s 42 of the Road Transport Safety and Traffic Management Act. Reference was made to the test of negligence to be found in s 54 of the Crimes Act but as long ago as 1950 it was held that the negligence necessary to constitute the offence of driving negligently is of a lesser standard than that which is required to prove an offence under s 54 of the Crimes Act. In any case, having considered the transcript and exhibits in the court below I am satisfied that even if the standard is the higher standard that Mr Sachs referred to today, that is a serious falling short of the standard of driving required such that criminal punishment is appropriate, I am satisfied that Ms Baker's driving fits that test. She says that she looked in the direction that Mr Sweeney was travelling for some five to ten seconds, but did not see him. Clearly he was there and clearly he was not obscured behind what I have described as the other vehicle for all of that five to ten seconds.

6 Ms Baker gave evidence that she was aware that cyclists often used the roadway on which she was travelling. She should therefore have been aware of the possibility that there was a cyclist travelling down towards her and she should have looked carefully to see whether that was the case.

7 The only explanation for this collision occurring in the circumstances described in the transcript of evidence is that Ms Baker failed to keep a proper lookout. She failed to look carefully enough to see whether Ms Sweeney or any other cyclist, for that matter, was doing what he was entitled to do, namely overtake on the left of the other vehicle because that other vehicle had signalled its intention to turn right.

8 In those circumstances I am satisfied that Ms Baker's conduct did demonstrate such a serious falling short of the standard of driving applied that criminal punishment is merited and I dismiss her appeal.

9 The orders of the magistrate are confirmed with the suspension to commence today. I note that Ms Baker's licence is surrendered.

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