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SUPREME COURT OF QUEENSLAND
R v Gallaty  QCA 80
GALLATY, Ronald Trevor
CA No 216 of 2020
DC No 453 of 2020
Court of Appeal
Appeal against Conviction & Sentence
District Court at Brisbane –  QDC 230 (Barlow QC DCJ)
28 April 2021
16 February 2021
Morrison JA and Lyons SJA and Boddice J
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;  HCA 12, cited
R v Huxtable  QCA 249, cited
S C Holt QC, with A McDougall, for the appellant/applicant
D L Meredith for the respondent
TWC Lawyers for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent
- MORRISON JA: I have read the reasons of Boddice J and agree with those reasons and the orders his Honour proposes.
- LYONS SJA: I agree with the reasons given and orders proposed by Boddice J.
- BODDICE J: On 18 September 2020, the appellant was found guilty of one count of dangerous operation of a vehicle causing death, after a Judge alone trial.
- On 15 October 2020, the appellant was sentenced to three years’ imprisonment, suspended after serving 12 months, for an operational period of three years. His licence was also disqualified for three years.
- The appellant appeals his conviction and seeks leave to appeal his sentence.
- The grounds of appeal in respect of conviction are that the verdict was unreasonable or cannot be supported, having regard to the evidence, and that the trial Judge made findings inconsistent with the evidence.
- At the hearing, the appellant conceded the second ground was part of a contention that the verdict was unreasonable or cannot be supported, having regard to the evidence.
- The sole ground of appeal against sentence, should leave be given, is that the sentence was manifestly excessive in all the circumstances.
- 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.
- 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.
- 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”. 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”. 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 … .” The driver’s side was “sagging to the right-hand side”.
- 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”. 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.
- In cross-examination, Ivory said the bus was travelling at about 80 kilometres per hour when driving toward the corner and slowed down two seconds before the collision. Upon being shown the dash camera footage, Ivory remained unconvinced the truck had remained within its lane at a point shortly prior to the collision.
- Kerrilee Angus was driving her motor vehicle immediately behind the bus. Both the bus and her vehicle slowed down when approaching the bend. The bus also veered to the left to take the corner. At that point, Angus observed a truck coming in the opposite direction “at great speed”. The truck was sitting on the white lines. As it came around the bend, it crossed over the lines. The driver of the truck was turning the steering wheel to the left to correct itself back into its own lane. Angus estimated the bus had been travelling at 80 kilometres per hour approaching the bend but slowed down to about 60 kilometres per hour at the point of collision.
- In cross-examination, Angus said she saw the truck driver move the steering wheel before the point of impact. His movement of the steering wheel was not a reefing motion. At that point, the truck was still on the roadway, driving to the left to get back into its lane properly. The truck was travelling at least 80 kilometres per hour as it came into the bend. She saw the truck for about five seconds prior to the collision. Angus accepted she gave an estimate at the scene of the truck travelling at least 120 kilometres per hour. That was excessive. Angus did not accept, upon being shown the dash camera footage that the truck tyres were within its own laneway. The front tyre was over the white lines by two or three inches.
- Mark Cantlon was riding his motorcycle behind Angus’s vehicle. The bus, Angus’s vehicle and his motorcycle slowed as they approached the bend. At that point, Cantlon heard a quite audible noise and saw a truck coming in the opposite direction. The truck was over the white lines as it came around the bend. It was going fast. The truck was leaning to the right and the driver was pulling the steering wheel to the left to correct its course of travel. Cantlon thought the truck was going to roll. At that point, the trailer came across onto the wrong side of the road and struck the bus. Cantlon was travelling at the speed limit driving towards the bend but was travelling at 50 to 60 kilometres per hour at the point of collision.
- In cross-examination, Cantlon estimated that the front of the truck was about a metre over the centre lines when he first saw it. After being shown the dash camera footage, he accepted that distance may be less but maintained that some part of the truck was over the centre lines. He accepted his impression that the truck was leaning, as if it was going to roll, may have been wrong.
- Benjamin Kruys, the first police officer to attend the collision, arrived at the scene at about 9.26 am on 17 November 2016. He conducted a roadside breath test of the appellant, which was negative, and asked some questions of him. The appellant provided dash camera footage from the cabin of his truck to police. The appellant told Kruys the truck had “safeties on it, like, stability control and all that” and “when it put the brakes on, coming to that corner, the trailer locked up and swung out [striking] the bus.” The appellant said he touched the brakes coming into the corner but, as he came around the corner, he was off the brakes. The truck “puts the brakes on, if it thinks, it’s got like a safety margin in it, right, if it thinks you’re going too fast or you’re unstable, it will put the brakes on, okay, put it on really hard. And what it did, it [indistinct] hard, the trailer slid out”.
- The appellant said he was staying within the speed limit as he approached the corner and was backing off coming into the corner. It was near the corner that he first saw the approaching bus. His truck was, at that time, on its side of the road and under control coming into the corner. However, if the truck system thought he was going too fast, it slams the brakes on. It had happened to him a few times before. A lot of times he would switch it off. He wished he had this time.
- The appellant said he did not know if there were any skid marks on the road but assumed there would be because the trailer locked up. That was what sent the trailer out into the path of the bus. The safety mechanism engaged and locked the brakes up. There was nothing he could do. He saw, in the rear vision mirror, the trailer move out, locked up under the brakes. That what was caused it to slide out. The appellant said he used this road reasonably often. He knew it pretty well.
- Neil Campbell, a member of the Police Forensic Crash Unit, attended the scene of the collision at 10.30 am that morning. His examination of the tyres of the trailer revealed scuffing or skid marks, consistent with the tyres of the trailer having locked up and skidded prior to impact. An examination of the roadway revealed tyre skid marks left by the trailer after its wheels locked up and prior to its starting to slide onto the incorrect side of the roadway.
- An examination of the roadway also revealed a mark which was fainter than the skid marks. It started at about 10 metres before the skid marks and stopped about the same distance after the first of the skid marks began. The mark was a heavy vehicle mark made by the front driver’s tyre of the truck as it travelled around the bend. That mark indicated the truck was travelling at sufficient speed that the weight of the vehicle was transferred onto that outside wheel, deforming its tyre profile such as to produce the mark on the road, and what Campbell said was a corresponding black mark on the outside rim of the tyre.
- A subsequent inspection of the rear driver side wheels revealed a similar mark on the outer right-side tyre consistent with the tyre having had a lot of lateral force. Those marks would not remain for an extended period, consistent with having been recently made. There was no corresponding mark on the left front tyre, consistent with all the loading having been on the right front tyre. Campbell concluded that the mark on the front driver tyre was made due to the speed at which the truck had travelled around the bend at the time of the collision. Campbell accepted that the marks on the roadway were consistent with the truck at all times travelling within its lane. The skid marks were consistent with the trailer only having skidded across the centre lines into the lane of the bus.
- Campbell conducted a lengthy interview with the appellant on 31 July 2017. The appellant confirmed that the safety mechanism on the truck activated not long after he had “hit the brake for the corner”. The appellant said:
“… not long after that it just, this alarm come on and the bells and whistles and carrying on. And ah, I could feel like the truck braking and as the bus, it all happened so quick. ‘Cause the bus would’ve come, came on pretty quick. And as it went past I sorta col -, you know? I was just going, I was just going around the corner… It’s like, I didn’t understand what the hell was going on here… And because, because of what that you know, as I said, I was just a passenger, once that, once that alarm come on and the truck putting the brakes on, I didn’t touch anything... The last thing you do, you slam the brakes on going around a corner. And it’s done it and I just couldn’t believe it”
- The appellant said he was passing the bus normally and, at that instant, the truck initiated the brakes full on, meaning he did not have any control. Nothing would have happened if the brakes had not gone off.
- During the interview, the appellant said he regularly drove that road. He described the roadway as narrow and bumpy. He was travelling at around 80 kilometres per hour shortly prior to the collision. The appellant did not know exactly when the alarm went off:
“when the bus appeared - that’s - to me, that’s what triggered and I assumed - you can tell me different – that that - that braking system or something has gone. I’m going to have a head on, you know, and it slammed the brakes on”
- The appellant said the alarm going off and the bus coming up happened together:
“Seem to, the bus come really quickly onto me and bloody or seemed that way and … seen it pass me quickly and the alarm gone off and you know just … instantly it just all happened”
- In cross-examination, Campbell accepted the truck had no contact with the bus (other than a secondary impact); that the dash camera footage did not reveal any evidence of the appellant applying a sudden reefing motion to alter the truck’s direction to avoid a collision; that there was no evidence the appellant had braked heavily at any time before the collision; that the truck remained within its marked lane at all times; and that the dash camera footage appeared to support a conclusion that the truck was not hugging the left side of the road as it rounded the bend. Campbell accepted that the position of the heavy wheel mark on the road suggested the left hand tyres of the truck were over, or tracking on, the left edge line of the road. The marks were consistent with the truck maintaining a course around the bend, travelling within its lane at all times. Campbell observed that the cabin containing the dash camera was capable of some movement.
- Campbell accepted that the marks on the tyre could have been caused earlier that day, if the truck had travelled around a similar left hand bend but, in his opinion, the marks on the steering wheel were made on the occasion of the collision. The mark was fresh and consistent with heavy cornering and it matched a heavy vehicle mark on the roadway. Campbell did not accept that the trailer’s braking system was activated by a heavy brake application by the truck’s ABA. The truck’s SR activated, causing its heavy braking application and the subsequent locking up of the trailer’s wheels.
- Campbell accepted that the apex of the curve in the road was around where the front of the truck was positioned and that the lock up of the trailer wheels occurred not quite before the apex of the curve. Further, when the braking mechanism in the trailer activated, the truck had a direct line of sight to the bus, which was directly in front of the truck. Campbell did not, however, agree that the truck was looking directly at the bus. The vehicles were seeing each other but not directly in line. For a millisecond, the vehicles would be on “a collision course head on” but it was only momentarily because both vehicles were moving in opposite directions and following a different path.
- Campbell said it was apparent from his observations of the stability control function switch in the truck that the appellant had been regularly switching it off. You could see the wear mark on the button. Campbell could not tell from his investigations whether it was activated or de-activated at the time. He also did not know whether the stability control function had a series of audible warnings or lights.
- Campbell did not accept that a dark line depicted in the dash camera footage in a similar position on the roadway to what he described as a heavy wheel mark was the same mark. He could only detect bits and pieces of the mark depicted in the dash camera footage. There was nothing consistent. It was not continuous, whereas the heavy wheel mark was narrow, dark, continuous and followed a curved path. Further, the heavy vehicle mark started out faint, became darker as the vehicle continued on its curved path and ceased once the loading on the outside tyre returned to the centre part of the truck as the road straightened out.
- Campbell recalled speaking to the appellant about the return of his truck and trailer in the days after the incident. He could not recall whether the appellant had said to him “I believe it was the ABA that caused the accident”.
- Robert Tilney, a Mercedes-Benz certified diagnosis technician said the brakes of the truck are activated by the ABA, the SR or by the driver applying the footbrake. The driver can also activate the trailer brake by use of a lever in certain circumstances. The ABA was a radar based collision prevention system, designed to reduce or eliminate a potential crash in front. Its sensors identified moving or stationary vehicles or other objects within a particular range. Those sensors detect vehicles in the lane in front of the truck and in the opposite lane, calculates the speed at which the truck is approaching and determines whether the object ahead is stationary or travelling forward in the same direction or is an oncoming vehicle. If there is a risk of collision, it will take action to alert the driver and, if necessary, brake the truck and trailer to avoid collision.
- The ABA will not react in that way when the identified object is an oncoming vehicle. The system was able to identify an oncoming vehicle as it would be approaching at significantly greater speed than that at which the truck is travelling and, therefore, must be moving in the opposite direction. Further, a steering angle sensor within the system can determine direction of travel, determining whether the truck is travelling out of the path of the oncoming vehicle.
- The ABA system takes action in three stages, each lasting a minimum of one second. First, an intermittent audible alarm sounds and a warning indicator light displays on the dash. At that point, a partial activation of the brakes, up to 30 per cent, may occur. Second, if the driver does not respond appropriately, the system continues the intermittent alarm and dash warning, but activates the brakes up to 50 per cent braking. Third, if there has been no driver response detected and the threat of collision remains, the system will activate emergency braking, bringing the vehicle to a complete stop. That system activates the brakes on both the truck and trailer.
- The ABA system will not operate if there is a system error, a malfunction in the ABS or a fault in the vehicle air suspension. An analysis of the truck’s systems revealed that the truck had previously been driven out of level suspension, causing the ABA system to shut down. A message would have been displayed on the dash “ABA not active” when the ignition was on. Tilney was not able to tell when that had occurred and whether the ABA was active at the time of the collision.
- After viewing the dash camera footage, Tilney opined that, as there was no vehicle or object in front of the truck in the direction in which it was travelling, there was nothing that would trigger the operation of the ABA system. He was 99.9 per cent sure that the ABA system would not have been activated by the radar recording the oncoming bus, having regard to the reliability and frequency of the radar system.
- Tilney said the SR detected instability leading to skidding, jack-knifing or tipping over of the truck and trailer combination. The system counteracts those events by braking specific wheels of the truck, by activating the trailer brakes and by changing the engine torque. The SR system operates within milliseconds of detecting a critical situation. It can, however, be switched on and off, manually. A critical situation includes understeering, oversteering or tipping.
- Oversteering occurs when the vehicle is going around a bend at excessive speed. Understeering occurs when the driving wheels threaten to lose traction into a bend, leading to potential sliding. Tipping arises when the truck is going around a bend with a higher centre of gravity than is acceptable for the physical limits of the bend. In any of these circumstances, if a driver has failed to observe the correct speed for the bend, having regard to the operating conditions of the vehicle, the SR system would react to minimise and reduce the effects.
- When the SR system is actuated, a light would flash on the dash. No audible alarm sounds in that event. It is unlikely the critical situation would be observable on the dash camera footage. Tilney observed that the trailer attached to the appellant’s truck did not have ABS brakes, although the truck had ABS. If either the ABA or the SR systems activated the truck’s brakes, the wheels of the trailer could lock, causing the trailer to slide into the opposite lane.
- David Oliver, a technical sales manager responsible for the developing braking systems in heavy vehicles, opined that the ABA did not activate, causing the truck to brake heavily. The ABA does not react to oncoming vehicles. If a truck towing a trailer has ABS but the trailer does not, a heavy application of brakes will result in the ABS of the truck ensuring that the truck’s braking does not lock the wheels and that the truck does not lose directional control, but the trailer may lock its brakes. If the ABA of the truck caused a heavy braking application, it could cause the trailer brakes to lock up. Similarly, if the SR system was activated rather than the ABA system, the brakes of the truck would be applied heavily. As the trailer does not have ABS, there is a high possibility its wheels will lock up, particularly if the trailer is unladen. Testing undertaken by Oliver had confirmed that only a few kilometres an hour in speed can make “a huge difference” to the stability of a truck or a truck and trailer combination, resulting in instability. Brakes are designed to stop a fully laden trailer travelling at 80 kilometres per hour.
- In cross-examination, Oliver said if the ABA is functioning correctly, it will warn the driver through an audible alarm or flashing light. The audible alarm will be continuing throughout that process.
- Peter Briggs, an auto-electrician, was familiar with the Mercedes-Benz trucks’ braking system. He opined that, if a truck towing a trailer is oversteering, the SR system will apply pressure to the trailer’s brakes to stop it from pushing the truck further into an increased oversteer condition by jack-knifing. The application of more brake pressure drags the truck back. Briggs was not able to state whether the ABA system would operate when it detected an oncoming vehicle.
- Antony Cheyne, an engineering manager responsible for installation testing and certification of electronic systems, such as ABS and ABA, opined that, whilst the combination of an ABS truck and a non-ABS trailer is completely legal and compliant for use in Australia, there is a potential danger in its operation. The trailer brakes are capable of stopping a fully laden unit. When unladen, there is a danger the trailer is over-braked, resulting in locked wheels and a loss of directional control. A lock up of brakes can occur if the brakes were applied electronically or by the driver.
- Cheyne opined that the ABA system detects but does not react to oncoming vehicles. It can determine where an oncoming vehicle is on a corner. Its steering angle sensor determines the oncoming vehicle is going to be out of its path. Cheyne said a pin missing from the left-side brake on the third axle, on inspection of the trailer following the collision, would cause an imbalance of brake force across the axle. However, the wheel missing the pin would continue rotating rather than lock up, counteracting the opposite force of the locked up wheels. The missing pin would not have made an enormous difference.
- Timothy Woodcock undertook a forensic analysis of the dash camera footage. That analysis revealed that the appellant’s truck travelled at an average speed of under 80 kilometres per hour for approximately 100 metres prior to colliding with the bus.
- Adam Collins examined the truck and trailer at the request of police on 25 November 2016. The truck had ABS brakes but the trailer did not. He found the truck in a roadworthy condition. He did not undertake any tests on the trailer, but observed that one of the brake boosters was over-stroking on the left hand third axle, suggesting the brake was possibly out of adjustment. Subsequent tests on the truck revealed that the ABA was working correctly. There was a stored fault code between the ABA computer and the radar. The fault was not of any significance.
- Andrew McLaren, an A grade motor mechanic, examined the truck and trailer on 21 November 2016. The brake system and the steering component of the truck were all operating correctly, with no faults. The truck was also in a satisfactory mechanical condition. No defects were found which would have contributed to the collision. The third axle left wheel brakes of the trailer were out of adjustment and the left brake chamber on the fourth axle was larger than the other chambers on all axles. Both those conditions were unsatisfactory. The defect in the third axle left brake was caused by a missing pin.
- McLaren said any reduction in brake efficiency caused by the missing pin would not make a great difference and, in the event of the brakes locking up, would actually operate to reduce the instability caused by locking brakes, as that wheel would be likely to continue turning, reducing the slide caused by the other locking brakes. The difference in size of the brake chambers on the fourth axle, also would not have contributed to the collision. In an emergency braking situation, the left brake on the fourth axle would lock slightly earlier than the other brakes, but only by milliseconds.
- Records revealed the truck received repair and maintenance between August 2015 and October 2016. On 23 August 2016, a check was undertaken of sticking brakes on the left hand rear axle of the trailer. Mark Graham said the mechanic doing that job would have noticed if a pin was missing on a trailer wheel and would have noticed if a brake chamber was a different size. Brayden Walker undertook the work on the trailer on 23 August 2016. He installed the larger brake chamber. He would have replaced any missing pin during that work, if it was missing at that time.
- Siva Jeevaratnam, a senior traffic engineer, said an advisory speed sign designates the maximum speed at which a bend in the road may be comfortably negotiated under good road traffic and weather conditions. The relevant bend had an advisory sign indicating a sharp left hand bend and a speed of 40 kilometres per hour. Subsequent to the collision, a review of the site resulted in a new advisory speed of 60 kilometres per hour. That advisory speed was determined solely by objector factors. At the time of the review, the horizontal and vertical alignment of the road had not changed but there was increased visibility due to vegetation clearing on the inside of the curve.
- The appellant gave evidence at trial. He was travelling at the speed limit as he entered the bend. He touched the brake coming into the corner. The next thing he remembered was the alarm buzzer went off; a continuous long beep. He noticed the red line going across the display. There was a couple of seconds between when he touched the brake and when the alarm first came on and virtually straight away from the alarm sounding he experienced a change in the truck’s speed.
- The appellant described his actions thereafter:
“… I noticed that – in the rear-vision mirror a semi-trailer coming [indistinct] steering went heavy and everything went – it’s almost – you know, you’re trying to control a truck that’s just slammed its brakes on [indistinct] that’s something that’s, you know, that’s pretty much shock. But I’ve – so I’ve just checked where the trailer was because that’s the first – well, second thing you do. You know you’re not going to hit anything, but you know [indistinct] trailer. And it was moving out, so I just – as soon as I saw it moving out, I thought I just steered the truck to the left sharply to try to pull the trailer back in to (sic) the truck, so that it wouldn’t, you know, collide with the bus but it was too late.”
- The appellant accepted he referred to the braking mechanism when speaking to police at the scene. He knew the braking mechanism had two components, the SR and the ABA. He could not remember the ABA at that time. A few days later, he telephoned Campbell to tell him he thought it might have been the ABA.
- The appellant had experienced an occasion in the past when the ABA activated the brakes after a vehicle pulled suddenly out in front of him on a highway. He was not aware on the day of the collision of any missing pin from the trailer, nor was he aware that there were different sized brake chambers on the rear axle of the trailer.
- In cross-examination the appellant accepted he was aware of the 40 kilometre advisory speed sign. He had travelled the road many times and was aware of the characteristics of the bend. Based on that experience, he knew he could go faster than 40 kilometres through the bend. The appellant accepted it was not a great road. He usually travelled with the trailer empty.
- The appellant experienced difficulties with braking, as between the truck and the trailer on two prior occasions. He leaned into a corner travelling around a bend and the controls slowed the truck down. The trailer locked up, but just for a second. There was no alarm, just a shot of air for a second and the trailer just pulled up a bit. On each occasion his trailer was unladen. He assumed it was the SR that operated on each occasion. He had switched it off occasionally because the truck had taken control out of his hands, which was not a good feeling. The trailer was difficult to control under severe braking; the trailer could lock up, including a strong application of brakes under SR or ABA. On those occasions, the truck’s brakes would not lock up.
- The appellant knew not to slam on the brakes when travelling into a corner. On this occasion, the truck made the wrong decision, taking control off the driver. The appellant denied he was travelling too fast into the corner. He could not control the trailer because the truck initiated emergency braking when it was not necessary. The appellant was sure the alarm activated before he took any evasive action. There was a link between the bus coming into view and the alarm sounding. The appellant did not notice the braking system go through a staged process of a warning accompanied by light braking. It was not until the next day that he thought “The alarm’s come on, the light’s come on. The only thing that makes any sense is that it’s picked up the bus in that split second… .”
- Mark Sculthorpe, a crash reconstructionist, opined that the collision was caused by the truck’s ABA operating incorrectly and applying the brakes. The dash camera footage revealed that the time period between when the bus was first discernible and the moment of collision was 3.588 seconds. The time period between when the bus became fully into view and the moment of collision was 3.225 seconds. Sculthorpe opined that the heavy vehicle mark on the roadway was not made by the appellant’s truck. The mark was too far to the left. Further, if the truck entered that curve travelling at or about the speed limit, the truck would not have caused such a tyre mark due to the weight shift of the truck itself. The curve was not sharp enough.
- 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.
- 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.
- Whilst the primary Judge did not consider that the appellant was lying, in giving evidence that the ABA alarm sounded and that he felt the truck’s brakes apply at the same time, the primary Judge found the appellant to be mistaken as to the timing, noting that the episode happened very quickly and instantly. The ABA did not operate until the truck had turned sharply to the left towards the trees at the moment the trailer hit the bus. At that point, the brakes were clearly applied to bring the truck to a stop over a few seconds. The appellant said he did not apply the brakes at that time. If the appellant had not done so, the ABA must have done so.
- The primary Judge found that the speed at which the appellant entered the bend caused the SR to actuate. The appellant gave evidence that he had previously experienced the operation of that system when going around the bend and that was the appellant’s explanation to police at the scene. Each of the passengers in the bus described the truck leaning to the right. Their evidence was supported by the position of the trailer when it first started skidding. The primary Judge found the SR calculated there was a risk of the truck tipping over or of the combination jack-knifing, such that that system applied braking to the appropriate wheels of the truck, actuating the trailer’s brakes, causing the wheels to lock and the trailer to skid in the direction of the oncoming bus.
- The primary Judge was satisfied beyond reasonable doubt that the SR system was caused to intervene because of the speed at which the appellant drove the truck and trailer around the bend. In coming to that conclusion, the primary Judge noted that there was no indication on the dash camera footage that the appellant manually braked hard at any time prior to the collision. Accordingly, there was no basis to be satisfied that any application of the brakes by the appellant caused the trailer to lock up and skid in the opposite direction.
- The primary Judge found that neither of the braking system faults, being different sized braking chambers and a missing pin, caused or contributed to the collision. The skid marks left by the trailer were consistent with it initially travelling in the same direction but no longer following the path of the truck. Accordingly, the primary Judge was satisfied beyond reasonable doubt that the cause of the braking of the trailer was the application of the SR system of the truck, not any fault in the braking system.
- Finally, the primary Judge found that a defence under s 23(1)(a)of the Criminal Code 1899 referred to an act or omission of the charged person or some other person committed independently of the defendant’s will. It did not extend to an act or omission of a machine. In any event, the actuation of the SR was not an act independent of the appellant’s will. The actuation of the SR was a direct result of the conscious will of the appellant to navigate the bend at that speed.
- The primary Judge found that the event under s 23(1)(b) was the death of the bus driver. A person in the appellant’s position would have foreseen that, if he drove the unladen truck and trailer around the bend at too high a speed, the SR may detect insipient instability and apply the trailer’s brakes. Having regard to the appellant’s knowledge of the truck and his experience with the SR operating in similar circumstances, an ordinary person would foresee the death of a person in an oncoming vehicle as a possible consequence of the act of driving around the corner at too high a speed. Similarly, it would have been foreseeable to an ordinary person in the appellant’s position that, to drive around the bend at that speed would be dangerous to other traffic or persons on or next to the road, such that s 23 had no application to the lesser charge of dangerous operation of a vehicle.
- The primary Judge was satisfied beyond reasonable doubt that the appellant had driven his unladen truck and trailer around the bend dangerously; his act of driving at that speed caused the SR to actuate, causing the trailer to travel into the opposite lane and collide with the bus; and the injuries sustained by the deceased in that collision caused his death, such that the appellant’s operation of the truck and trailer caused the death. The primary Judge found the appellant guilty of dangerous operation of a vehicle causing death.
- The appellant submits that there was a reasonable hypothesis consistent with innocence open to the trial judge. Namely, the ABA was the only system that caused an audible alarm and consequently the ABA was the cause of the braking. Further, it was not established that the speed at which the appellant drove around the corner was itself dangerous. It was within the speed limit and undertaken within its own lane. It did not carry the risk of the operation of the SR and, in turn, a loss of control of the trailer.
- The appellant submits the heavy wheel mark was not established to have been made by the truck. Campbell could not exclude the possibility that the heavy wheel mark on the front driver’s side tyre was caused earlier in the day. It could logically have been caused by the severe turn to the left after the collision. Further, Campbell’s measurement of the heavy wheel mark supported a conclusion that, if caused by the appellant’s truck, the passenger side front wheel must have been over the left hand lane line, a finding inconsistent with the truck having remained within its lane at all times. The only logical conclusion was that the heavy wheel mark was made by a different vehicle.
- The appellant submits the evidence of Simpson and Ivory was inconsistent with the evidence that the truck at all times remained within its lane and inconsistent with the dash camera footage.
- The appellant submits, having regard to the appellant’s evidence of hearing an alarm, it was unlikely the SR was activated at the time of the collision. Further, it is unlikely the ABA operated only when the appellant took evasive action. The appellant’s evidence was that the alarm came on before he took evasive action. Once it is concluded that the audible alarm activated prior to collision, there were only three reasons for such activation. First, activation of the handbrake by the driver. Second, opening of the cabin door whilst driving. Third, activation of the ABA. There was no suggestion that either of the first two had occurred, leaving activation of the ABA as the only rational conclusion.
- Finally, the appellant submits that, even if it be concluded the appellant’s driving was at a speed that was dangerous in the circumstances and that it was that driving which caused the activation of the SR and the locking of the brakes on the trailer, there was raised a defence under s 23 of the Criminal Code. There was no basis upon which it could be concluded that a reasonable person in the appellant’s position would have foreseen that driving in that manner would have resulted in the activation of the SR, causing the brakes on the trailer to lock and the trailer to skid over the centre line before colliding with the bus.
- 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. The dash camera footage did not show any such mark on the road before the collision and the mark was in a position consistent with the direction of travel of the front right wheel of the truck. The mark was also fresh and there was a corresponding fresh mark on the truck’s front wheel tyre. 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.
- The respondent submits it was also open, on a consideration of the evidence, as a whole, that the dangerous driving was a substantial or significant cause of the death of the bus driver. The trailer’s brakes locked up as a consequence of the truck entering the bend at excessive speed. The ABA did not react to oncoming vehicles. The most likely system that caused the brakes to be applied was the SR. The appellant’s evidence of hearing an alarm was consistent with the ABA operating after the appellant took evasive action. The appellant raised no such audible alarm at the scene. The version of events given at that time was consistent with the application of the SR.
- The respondent further submits that a mistaken impression by Simpson and Ivory as to the position of the truck being over the centre lines was explicable having regard to the position of the trailer. It did not mean their evidence regarding the truck travelling too fast as it rounded the bend could not be accepted, particularly as that perception was supported by consistent evidence that each observed the truck leaning to the right as it came around the bend.
- Finally, the respondent submits that the defence of accident under s 23 of the Code had no practical relevance. The event was the death of the bus driver. An ordinary person in the appellant’s position would have known the SR operated when there was perceived a possibility of instability; that the trailer, unlike the truck, did not have an ABS system so the wheels could lock up; and if the SR operated when negotiating a bend and the wheels of the trailer locked up, the unladen trailer could slide into oncoming traffic. The appellant had confirmed in his interview that he previously experienced the SR operating in circumstances where the wheels locked up, albeit for a short period of time.
- In determining whether the finding of guilt was unreasonable and cannot be supported by the evidence, this court must undertake its own independent assessment of both the sufficiency and the quality of the evidence to determine whether, notwithstanding there being evidence upon which one might convict, it would be dangerous in the circumstances to permit the finding to stand.
- In undertaking that independent assessment, the court must give due regard to the benefit the tribunal of fact had of seeing and hearing witnesses. However, if having undertaken that independent assessment, the record reveals that the evidence contains discrepancies, inadequacies, was tainted or otherwise lacked probative force, such as to leave the appellate court to conclude that, even allowing for those advantages, there is a significant possibility that an innocent person has been convicted, the finding of guilt is to be set aside as unreasonable.
- Whilst the appellant submits the tribunal of fact could not be satisfied beyond reasonable doubt that the appellant operated the truck dangerously, it was open, on consideration of the evidence as a whole, for the tribunal of fact to be satisfied beyond reasonable doubt that the appellant entered the bend at an excessive speed for the circumstances, such that his operation of the truck was dangerous.
- The appellant’s truck was travelling at an average speed of 80 kilometres per hour at or around the time it entered the bend. Whilst that was the speed limit, a sign affixed to the road approaching the bend advised a speed of no more than 40 kilometres per hour. A review of the bend subsequent to the collision resulted in an advisory speed of 60 kilometres per hour. Both speeds were substantially lower than the speed at which the appellant entered the bend.
- Further, whilst the appellant told police he was aware of the characteristics of the bend, and believed it safe to traverse at that speed, he also told police at the scene that the truck’s braking system activated “as if the system thought the truck was going too fast”. A conclusion that the truck was travelling too fast in negotiating the bend was also supported by the observations of Simpson and Ivory. Both described the truck as approaching the bend at speed. Angus gave a similar observation.
- The accuracy of the observations of those witnesses was not negated by inaccurate estimates given by these witnesses as to the speed of the truck or that it travelled over the centre lines. Those inaccuracies were explicable having regard to the momentary nature of those observations. That momentary nature did not detract from the clear impression each witness had of a truck travelling at speed.
- A conclusion that the appellant was travelling too fast to safely negotiate the bend was also not negated by the findings that the truck was travelling at the speed limit and remained within its lane. Dangerousness is to be determined by the whole of the circumstances. This roadway was not “a great road” and the appellant was traversing a bend in an unladen truck and trailer.
- Finally, a conclusion that the appellant was travelling too fast to safely negotiate the bend was consistent with the marks observed by Campbell on the right steering tyre of the truck. It was open to the tribunal of fact to accept that those marks were recent, and consistent with the truck having negotiated the bend too fast. A similar conclusion was open as to an acceptance of Campbell’s evidence regarding the cause of the heavy wheel mark.
- Nothing in the dash camera footage supported a conclusion that Campbell must be in error in his assertion that the mark was not the same mark said to have been observable in the footage. It was open to the tribunal of fact to accept Campbell’s assertion that what was observed in the footage was intermittent and not consistent with the mark he observed on the road, particularly having regard to the benefit of seeing and observing Campbell’s explanation for those differences.
- Similarly, it was open to the tribunal of fact to accept Campbell’s evidence that the position of that mark was consistent with the truck remaining within its lane, albeit towards the left side of the road, and was not inconsistent with what was depicted in the dash camera footage.
- A conclusion that the appellant was operating the truck dangerously does not of itself support a finding that the dangerous operation caused the death of the deceased. That conclusion requires a determination as to the causation of the trailer wheels locking, with the result that the unladen trailer skidded onto the wrong side of the road into the oncoming bus.
- In undertaking this determination, the tribunal of fact had evidence that the ABA was not faulty on the day in question; the ABA, operating correctly, would not react to the bus, even though it was entering the corner, as it was travelling in the opposite direction and the system’s sensors identify and differentiate oncoming vehicles; the SR specifically reacts to the truck taking the bend at too great a speed to safely negotiate the bend; in the event the SR activated, the wheels on the trailer would lock up; the wheels of the trailer did lock up; and that locking up was the cause of the trailer travelling onto the incorrect side of the road, striking the oncoming bus.
- An acceptance of each of those matters as facts was open, on a consideration of the evidence as a whole. Such facts amply supported a conclusion that the appellant’s dangerous operation of the truck, by entering the bend at an excessive speed, caused the deceased’s death.
- The appellant’s own account at the scene was that the truck had “safeties on it like stability control and all that”; that the truck “puts the brakes on … if it thinks you’re going too fast or you’re unstable”; and that the truck put the brakes on “really hard” and the trailer slid out. Whilst the appellant sought in a subsequent interview to explain his answers on the basis he could not remember the name of the ABA, a consideration of his answers supports a conclusion that his explanation was itself a reconstruction.
- In discussion with police at the scene, the appellant did not merely mention braking systems. He specifically spoke of several past experiences where the truck “slams” the brakes on if the system thought the truck was going too fast. The system referred to can only be the SR as the appellant went on to state that he would switch off the system and wished he had this time. There was evidence that the switch for the SR exhibited signs of regular use, consistent with that account.
- Once that conclusion is reached, the appellant’s evidence of hearing an alarm (consistent with the activation of the ABA) did not prevent an acceptance of his version to police at the scene as being accurate as to the cause of the activation of the truck brakes and the subsequent locking of the trailer brakes. There was, at that point, no reason for the ABA to activate, if it was operating correctly, and there was no basis to conclude that the system was faulty. Against that background, it was open to the tribunal of fact to accept and prefer the evidence of each of Tilney, Oliver and Cheyne to the effect that the ABA would not have responded to the bus as it would have recognised it as an oncoming vehicle.
- Once that evidence is accepted, it was open to the tribunal of fact to reject, as a reasonable hypothesis consistent with innocence that the trailer wheels locked up as a consequence of the activation of the ABA. The activation of that system, as opposed to the SR, was not consistent with the ABA operating correctly, and was not consistent with the appellant’s version to police at the scene. That version was particularly significant having regard to the appellant’s many years of experience as a truck driver and his account of experiencing similar circumstances in the past.
- This conclusion is not inconsistent with the tribunal of fact’s acceptance of the appellant’s evidence that he heard an alarm sound in the truck (which, on the evidence, could only be an indication of the activation of the ABA). That acceptance did not mean that it was not open to the tribunal of fact to be satisfied that the appellant was erroneous as to when he heard that alarm.
- The only rational and reasonable inference from the conclusion that the SR reacted to the truck’s speed when negotiating the bend, causing the trailer wheels to lock up, was that the alarm sounded after the appellant took evasive action, having observed the trailer sliding onto the incorrect side of the road. That sliding was caused by the activation of the SR, as a consequence of the appellant driving the truck and trailer into the bend dangerously.
- It was also open to the tribunal of fact to find that s 23 of the Criminal Code had been negatived by the prosecution. The act of negotiating the bend dangerously did not occur independently of the appellant’s will and the death of the bus driver was an event which an ordinary person in the appellant’s position would have foreseen. An ordinary person in the appellant’s position would have known the SR operated in response to perceived instability and that, in that event, the wheels on the unladen trailer could lock up, causing it to slide into the path of oncoming traffic.
- On an independent assessment of the record as a whole, 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.
- The finding of guilty of dangerous operation causing death was not unreasonable.
- In sentencing the appellant, the primary Judge specifically found that the appellant had “a significant history of traffic offences”. That history, relevantly, contained offences of exceeding the speed limit by between 15 and 30 kilometres per hour in 1989 and 1992, exceeding the speed limit by not more than 15 kilometres per hour whilst driving a heavy vehicle in 1993, exceeding the speed limit by between 13 and 20 kilometres per hour in 2003 and exceeding the speed limit by less than 13 kilometres per hour in 2009 and 2014. The appellant had also exceeded the mass requirements for his vehicle in 1996 and 1998 and had failed to keep left of double white lines on one occasion in 1996.
- The primary Judge found that, whilst most of those offences were dated, 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.”
- Such conclusions were contrary to the evidence. A traffic history containing six speeding offences over a 25 year period, in the context of a professional truck driver working fulltime in the heavy vehicle industry for a period of 30 years, does not support findings that the applicant had a habit of driving his heavy vehicle beyond the limits of its safe operational capacity, or that he had a cavalier attitude to operating that vehicle at a safe speed. Such findings evidence a misapplication of the sentencing process, warranting a re-exercise of the sentencing discretion.
- In re-exercising that discretion, regard must be had to the serious consequences of the appellant’s dangerous driving and the devastating impact the death of the deceased had on his family and loved ones; and to the need for general deterrence in relation to the dangerous operation of heavy vehicles.
- Regard must also be had to factors in mitigation. Three such factors are important. First, the appellant was a man of mature years with no relevant criminal history and a limited traffic history. Second, the appellant no longer operated a heavy vehicle having retired from that occupation subsequent to this incident. Third, the appellant had led a life as a good, useful, contributing citizen to society, who had shown genuine remorse for the death of the deceased.
- A balancing of the devastating consequences of the offence of dangerous operation causing death and the need for general deterrence, and the mitigating factors when sentencing mature drivers who have otherwise led blameless lives, provides a tension between relevant sentencing principles. However, that tension does not detract from the need for sentences in such offences to carry, in an appropriate case, a period of actual custody to evidence denunciation for such conduct.
- A balancing of those factors, and having regard to comparable authority, the appellant’s criminality warrants a sentence of three years’ imprisonment. However, his mature years, his lack of prior criminal history and limited traffic history, in the context of genuine remorse and subsequent retirement from operating heavy vehicles, supports a conclusion that the principles of deterrence and denunciation can be adequately reflected in the imposition of such a head sentence, with the strong mitigating factors in his favour being reflected in a suspension of that sentence of imprisonment forthwith, for an operational period of three years.
- Finally, the seriousness of the offence warrants a substantial period of disqualification. However, the appellant’s otherwise good character and voluntary disengagement with the operation of heavy vehicles support the imposition of a disqualification period of no more than two years.
- I would order:
- (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.
An alternate case put by the Crown, that the brakes had been activated by the appellant, was specifically not accepted by the trial Judge.
AB529/40 – 41.
SKA v The Queen (2011) 243 CLR 400 at 14.
Pell v The Queen  HCA 12 at ; (2020) 94 ALJR 394 at 402.
R v Osborne  QCA 291 at .
R v Huxtable  QCA 249; R v Osborne  QCA 291; R v Browning  QCA 337; R v MacDonald  QCA 9; R v Muirhead; R v Muirhead; Ex parte Attorney-General (Qld)  QCA 244.
- Published Case Name:
R v Gallaty
- Shortened Case Name:
R v Gallaty
 QCA 80
Morrison JA, Lyons SJA, Boddice J
28 Apr 2021