I have previously reported on the case of Mr Wells – see
- Tragic outcome from RFS response (April 4, 2013);
- Rural Fire Service volunteer on trial for fatal collision (May 19, 2016);
- NSW RFS volunteer acquitted of dangerous driving occasioning death and grievous bodily harm (June 16, 2016);
- Further prosecution over fatal RFS accident (August 17, 2016);
- Further prosecution over fatal RFS accident (Part 2) (August 21, 2016);
- RFS Response to Volunteer’s Conviction for Fatal Traffic Accident (October 13, 2016);
- RFS Fatal Collision and s 128 of the Rural Fires Act (October 14, 2016); and
- RFS firefighter sentenced over fatal collision (December 5, 2016)
Mr Wells appealed against his convictions for negligent driving causing death a for failing to make a U-turn with safety; and against his sentence of 12 months imprisonment to be served by way of Intensive Correction Order (ie not actually in prison), a fine of $1000 and 12 months disqualification from driving.
In a unanimous decision (Button J; Gleeson and Harrison JJ concurring) the Court of Criminal Appeal dismissed all the appeals – Wells v R  NSWCCA 242 (13 October 2017).
The issue for the Court of Criminal Appeal is not ‘would they have reached the same conclusion?’ but ‘did the judge make an error?’ The judge’s decision will not be overturned unless ‘there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice’ (see  quoting Filippou v The Queen  HCA 29, ).
Appeal against conviction
With respect to negligent driving Button J said (at -):
To be clear, it was not the Crown case that the appellant was driving negligently in the sense of driving too fast, swerving from side to side, failing to keep a proper lookout, or any other negative attribute of his mode of driving itself. Rather, it was the act of commencing and continuing the U-turn of the tanker, in all of the surrounding circumstances, that was said to be sufficiently negligent to found the necessary element of the criminal offence.
In my opinion, it was open to the trial judge to find, in all of the circumstances – the road in question being a freeway, on which the speed limit was 110 km/h, and on which motor vehicles travel at that speed, and often higher; the crucial events taking place at night; the freeway being unlit; the fact that the vehicle of Mr Mihailidis was approaching from the south; the fact that the tanker was performing a U-turn into lane three northbound, a lane reserved for overtaking vehicles travelling at speed; the fact that the appellant needed only to wait a matter of seconds until the Corolla had driven past, and the northbound lanes had cleared – that the decision of the appellant to commence the U-turn proceed into lane three northbound was negligent.
As for the argument that Mr Wells was entitled to assume that the driver of the Corolla that ultimately collided with the appliance would give way to him, both the trial judge and Button J disagreed. The fact that the driver flashed his headlights was not necessarily an indication that the driver had seen the fire appliance and would give way. As Button J said (at ) ‘It was and is quite possible that Mr Mihailidis, in flashing the lights of his vehicle, was doing so as a warning, and not as an indication that he was proposing to, or able to, give way’. Even if one assumes that another driver is going to behave in a particular way, it can still be negligent to drive on the basis of that assumption.
At  Button J said ‘In short, I consider that it was open to his Honour as tribunal of fact to find that the appellant drove negligently by manoeuvring the tanker as he did’. Given that it was ‘open’ to the judge to make those findings, there was no error for the appeal court to correct.
As for causation there is no doubt that the actions of Mr Mihailidis (the other driver) also contributed to the accident but the criminal law does not require a sole cause: ‘as a matter of law and common sense, there can be more than one substantial contribution to an outcome’ (). Button J concluded (at ):
In my opinion, it was open to his Honour to find that the negligent driving of the appellant … was a substantial contribution to the collision between the tanker and the Corolla, which led directly to the fatal collision between the Mazda and the Corolla.
Again given that those findings were ‘open’ to the trial judge there was no error and so no reason for the Court of Criminal Appeal to change the result.
There was further argument that the parties had set out agreed facts and these had been given to the trial judge as the facts upon which he should apply the law and reach his conclusions. The appellant argued that when giving his reasons, the trial judge had used facts that were not in, or were contrary to the agreed facts and this was a denial of natural justice. If the judge thought the facts were different, so the argument goes, he should have warned the parties and at least heard from them, if not witnesses, to determine the facts.
The Court of Appeal rejected this submission too. Button J said that some issues which the judge found were established by the evidence were not contrary to the agreed facts – they dealt with issues that the judge had to resolve that were not in the agreed facts. And accepting only for the sake of the argument that there were discrepancies between the agreed facts and the facts as relied upon by the judge those discrepancies were irrelevant to the basis of the finding of guilt (see ). In short Dutton J thought there were no inconsistencies and even if you accepted that there were, they did not affect the legal outcome.
Road Rules 78, 79 and 306
At the time of the accident the relevant rules were the Road Rules 2008 (NSW). These have been replaced by the Road Rules 2014 (NSW) but rr 78 and 79 remain substantially the same. These are the rules that require a driver to give way to, and get out of the way of, an emergency vehicle.
The appellant argued that if Mr Mihailidis had a duty to give way to the appliance (rr 78 and 79) and that Mr Wells enjoyed an exemption from the road rules under r 306 of the 2008 rules (and now the 2014 rules) then that was relevant to the trial judge’s assessment of whether the action in commencing and continuing the u-turn was negligent.
As readers of this blog will know an emergency vehicle is a vehicle driven by an emergency worker ‘in the course of his or her duties as an emergency worker’. An emergency worker includes a member of the NSW Rural Fire Service ‘providing transport in the course of an emergency’ (Road Rules 2008 (NSW) (repealed) and Road Rules 2014 (NSW)). Critical to all these definitions is the concept of an ‘emergency’.
Counsel for the appellant argued (at ) that … it was an error for his Honour to find that, as a matter of definition, an emergency must have some aspect of urgency to it’ and that even though Mr Wells was returning to a scene to collect the crew, it was still relevantly an emergency. Button J disagreed, he said, at :
… I do not accept that “an emergency” can be an event that does not have at least some aspect of urgency to it. I say that not only as a matter of ordinary English usage. I say that also because, with respect, I accept the submission of the Crown that the interpretation for which the appellant contends would lead to absurdities; for example, a tanker being driven to an event that was patently not urgent – such as a routine meeting of volunteer firefighters – could nevertheless be judged as travelling to an emergency, with consequent modification to the operation of the Road Rules. In short, I do not consider that his Honour committed an error in interpreting the various rules upon which the appellant relied in a way that did not assist the appellant, on the simple basis that his return to the weighbridge was not, in truth, an emergency as defined by statute.
Finally, r 306 was irrelevant. If Mr Wells had not been driving negligently he would not be guilty of the offence of negligent driving causing death and r 306 would be irrelevant. As he was, in the court’s opinion, negligent, then r 306 did not apply as it only applies if the driver is taking reasonable care. Either way there was no role for r 306 to play in the determination of the case.
On the basis that the appellant could point to no error by the judge, the appeals against conviction were dismissed.
Appeal against sentence
Button J then went on to consider the appeal against sentence. Counsel for the appellant argued that the trial judge contradicted himself in setting out the grounds for determining the seriousness of the offence, moving from an acknowledgment that this was a mere error of judgment and superimposing ‘upon the findings at trial a degree of wilful or reckless behaviour rather than a simple, albeit negligent, misjudgement. That has resulted in a sentence that is more severe than warranted in all the circumstances.’
Button J disagreed, he reviewed the judge’s comments and said:
In my opinion, the various paragraphs of the remarks on sentence relied upon by the appellant are unexceptionable. They do not show that his Honour rejected the facts agreed between the parties… Nor are the extracted paragraphs contradictory, or internally inconsistent. They simply show that his Honour well appreciated that the gravamen of the primary offence was nothing more than the decision to pull out from the U-turn bay in all of the circumstances, rather than to wait approximately 11 seconds until the oncoming motor vehicle had passed. The paragraphs relied upon also show that his Honour maintained the assessment that, on the evidence, there was no urgency in returning to the weighbridge to the north. None of that, in my respectful opinion, demonstrates any error of fact or law.
It was also argued that the trial judge should have recognised Mr Wells’ remorse over the accident even though he had never accepted that he was in fact responsible for Mrs Mihailidis’ death. As counsel for the appellant said (at ) ‘His Honour found no evidence of the appellant’s acceptance of responsibility, and, as a result, it was submitted, erroneously took no account of remorse in mitigation of sentence.’
The Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A says that a person’s remorse is a mitigating factor that may reduce their sentence but only if
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)…
Whilst it was true that there was evidence that the appellant was affected by the event and no doubt was truly sorry that it happened, but (at ):
… there was and is no remorse demonstrated by the appellant for the offence. That is inherent in the fact that, at the commencement of the trial by jury, the appellant pleaded not guilty to the greater offence of which he was found not guilty. At the commencement of the subsequent hearing before his Honour, the appellant entered two pleas of not guilty. And up until the conclusion of the hearing of the appeal, the appellant disputed that he committed the two summary offences of which he was convicted, and instructed a solicitor, junior counsel, and senior counsel to make detailed and varied submissions in support of that proposition to this Court. Nothing has changed since this Court reserved its judgment.
Whilst the judge ‘accepted that the appellant deeply regretted, in a general way, the fact that a person died in the early hours of 19 October 2012’ he was correct to conclude that the appellant did not demonstrate ‘remorse’ as required by the Act and therefore the judge did not make an error by failing to give ‘credit’ to the accused for whatever remorse he did and does have.
As for the claim that the sentence was manifestly (which means ‘In a way that is clear or obvious to the eye or mind’; Oxford English Dictionary (Online)) excessive, Button J said (at -):
… the negligent driving of the appellant substantially contributed to the death of a human being. That death was, in one sense, caused by the refusal of the appellant to wait a mere 11 seconds until another vehicle had driven past him. The maximum penalty for the offence was, in the circumstances, full-time imprisonment for 18 months. No remorse was demonstrated by the appellant, and of course there could be no utilitarian discount after the hearing before his Honour. Although free of criminal convictions, the appellant was not free of traffic matters, including a previous conviction for negligent driving, albeit many years previously. The sentence imposed consists of the appellant being subject to conditional liberty for 12 months, whereby he is subject to a reasonably intensive program of rehabilitation. As this Court has said on another occasion, although that is a sentence of “imprisonment”, it is also a sentence that unquestionably has a large degree of inherent leniency built into it: R v Pogson (2012) 82 NSWLR 60 at .
Nothing placed before this Court persuades me that the sentence actually imposed was unavailable to the discretion of his Honour. To the contrary, on one view it could perhaps be regarded as a rather lenient sentence.
His Honour proposed that all the grounds of appeal against both conviction and sentence should be dismissed. Gleeson and Harrison JJ agreed with the decision of Button J.
The outcome of this case depends entirely on its facts. The fact that Mr Wells was negligent in this case does not govern the determination of the next case. Each case has to be judged on its own facts.
If one was looking for a rule of law that could be applied in future cases it would be that the concept of ‘emergency’ for the various road rules does require some degree of urgency. Just because a person is driving an RFS (or SES, or NSWF&R or NSW Ambulance) vehicle it does not mean that they can activate the beacons and/or sirens and enjoy an immunity from the road rules. They have to be responding to an ‘emergency’. Exactly what that is remains undefined but it must be something that has a degree of urgency; mere convenience is not enough.
Another rule might be that even with the lights and sirens on, you are not entitled to proceed on the assumption that people will give way. You have to make sure they have first – hence the advice always stop at the red light or stop sign and make sure everyone has given way before you proceed.
The end of the legal road?
There is one more possibility of appeal. Mr Wells could seek to take the matter to the High Court of Australia. An appeal to the High Court of Australia is not a right, one has to seek leave and in so doing, persuade the court that there is a legal issue that warrants its consideration. Whether Mr Wells will seek that leave, and whether the Court would grant it, I cannot say.