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[2026] NSWCCA 152
Court of Criminal Appeal (NSW)
2026-09-30
Leeming JA at [1]; Fagan J at [2]; Emmett J at [78]
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Farrell v R [2026] NSWCCA 152
Hearing dates: 14 September 2026
Date of orders: 30 September 2026
Decision date: 30 September 2026
Before: Leeming JA at [1];
Fagan J at [2];
Emmett J at [78]
Decision: 1. Grant leave to appeal against conviction and sentence.
2. Dismiss the appeal against conviction and sentence.
Catchwords: CRIME — Appeals — Appeal against conviction — Admission of expert opinion — Whether decision to admit opinion evidence involved procedural unfairness — Whether witness lacked specialised knowledge — Whether opinion not based on specialised knowledge — Opinion evidence properly admitted
CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Where applicant convicted by judge alone of dangerous driving occasioning death and grievous bodily harm — Critical finding that head-on collision caused by applicant crossing centre line was open — No reasonable doubt about verdict of guilty
CRIME — Appeals — Appeal against sentence — Dangerous driving occasioning death and grievous bodily harm — Whether judge erred in assessment of objective seriousness — Scalar classification not an error where all circumstances bearing upon objective gravity taken into account
CRIME — Appeals — Appeal against sentence — Manifest excess — Dangerous driving occasioning death and grievous bodily harm — Sentence not manifestly excessive
Original judgment source is linked above.
Legislation Cited: Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Cripps v R (s 52A guideline judgment) [2026] NSWCCA 144
Daher v R [2026] NSWCCA 26
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Texts Cited: Nil
Category: Principal judgment
Parties: Stephanie Farrell (Applicant)
Rex (Respondent)
Representation: Counsel:
A Evers (Applicant)
C Young (Respondent)
Solicitors:
Aboriginal Legal Service (NSW/ACT) (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2022/11482
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
Stephanie Farrell, (the applicant) sought leave to appeal against conviction and sentence on one count of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm, contrary to ss 52A(1)(c) and 52A(3)(c) of the Crimes Act 1900 (NSW).
The applicant stood trial before a judge alone in the District Court, and was sentenced, on 18 December 2025 to an aggregate term of imprisonment of 3 years and 3 months, with a non-parole period of 1 year and 9 months.
The grounds of appeal, (as amended) with respect to the conviction were: (1) the Judge erred in admitting expert opinion of a crime scene officer in that the witness lacked the expertise to provide his opinion and the opinion was not based on specialised knowledge and; (3) the verdict was unreasonable or cannot be supported, having regard to the evidence.
The grounds of appeal with respect to the sentence imposed were: (1) his Honour erred in his assessment of the objective seriousness of the offending, arriving at a conclusion that was not reasonably open and (3) the sentence was manifestly excessive.
The Court (Leeming JA, Fagan and Emmett JJ agreeing), held, granting leave to appeal against the convictions and sentence and dismissing the appeal:
Conviction ground (1)(b) – lack of expertise
(1) No objection was made at trial as to the crime scene officer’s training being deficient or superficial with respect to identification of road surface damage. Evidence of expertise was adduced, and in the absence of evidence to the contrary, there was no reasonable basis to doubt that the witness possessed the specialised knowledge to provide the opinion. [28]-[29] (Fagan J); Leeming JA at [1] and Emmett J at [78] agreeing.
Conviction ground (1)(c) – opinion not based on expertise
(2) The three fundamental requirements for reception of opinion evidence were satisfied, namely, (1) the opinion related to an accepted field of expertise, being road collisions examination, and was acquired by the witness; (2) the factual basis for the opinion, being the nature and position of gouge marks on the road surface, was identified; and (3) the witness exposed the reasoning involved in his application of expertise to that factual basis, namely, the gouge marks were caused by downward pressure when the vehicles collided. [31]-[34] (Fagan J); Leeming JA at [1] and Emmett J at [78] agreeing.
Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29 at [222]-[223] (Gordon and Edelman JJ), cited.
Conviction ground (3) – unreasonable verdict
(3) Upon consideration of the evidence as a whole, it was open to the trial judge to be satisfied beyond reasonable doubt that the applicant drove her vehicle across the centreline and collided with the oncoming vehicle. The verdict was not unreasonable. [58]-[59], [61] (Fagan J); Leeming JA at [1] and Emmett J at [78] agreeing.
M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, applied.
Sentenc**e ground (1) – error in assessment of objective seriousness
(4) A judge’s placement of offending on a notional scale of seriousness is not, of itself, an error provided that all circumstances bearing upon objective gravity are taken into account. [66] Fagan J; Leeming JA at [1] and Emmett J at [78] agreeing
Daher v R [2026] NSWCCA 26 at [12]-[13] (Adams CJ at CL, Boulten J agreeing at [68]), [50]-[55] (Fagan J), applied.
Sentenc**e ground (3) – manifest excess
(5) The sentence was not manifestly excessive. [68]-[74] Fagan J; Leeming JA at [1] and Emmett J at [78] agreeing.
LEEMING JA: I agree with Fagan J on ground 1 of the appeal against conviction. I have reviewed the entirety of the evidence. Upon my own independent assessment of that evidence, I am satisfied that it was open to the trial judge to be satisfied beyond reasonable doubt that the applicant was not driving on her side of the road, and was guilty of both offences. I also agree with Fagan J concerning the appeal against sentence. Accordingly, I agree with the orders proposed by Fagan J.
FAGAN J: Stephanie Farrell seeks leave to appeal against her conviction on two charges arising out of a motor vehicle accident that occurred on Thomas Mitchell Drive near Muswellbrook on 16 December 2020. Ms Farrell was the driver of a vehicle involved in a head-on collision. The driver of the other vehicle was killed and one of Ms Farrell’s passengers suffered grievous bodily harm.
Ms Farrell pleaded not guilty to the charges and was tried by Judge Gartelmann SC without a jury. On 24 September 2025 his Honour entered verdicts of guilty and published reasons. Ms Farrell was sentenced on 18 December 2025 to an aggregate term of imprisonment of 3 years and 3 months, commencing that day, with a non-parole period of 1 year and 9 months expiring on 17 September 2027.
The counts on which Ms Farrell was convicted were as follows (with the maximum penalty and his Honour’s indicative sentence noted in brackets):
Count 1: drive a motor vehicle in a manner dangerous to other persons whereby the vehicle was involved in an impact as a result of which the death of William Peter Langford was occasioned, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW). [Maximum penalty 10 years imprisonment; indicative sentence 2 years and 4½ months imprisonment].
Count 2: drive a motor vehicle in a manner dangerous to other persons whereby the vehicle was involved in an impact as a result of which grievous bodily harm was occasioned to Jasmin Farrell, contrary to s 52A(3)(c) of the Crimes Act. [Maximum penalty 7 years imprisonment; indicative sentence 1 year and 7 months imprisonment].
In the vicinity of the collision Thomas Mitchell Drive is a bitumen sealed roadway through a rural area, with one lane in each direction and a double continuous centreline indicating that no overtaking is permitted in either direction. The road is aligned generally north-west to south-east. Ms Farrell was driving a Nissan Pulsar sedan in the north-west bound lane, with an infant in a baby seat in the rear and her sister, Jasmin Farrell aged 10 years, in one of the passenger seats. Mr Langford was driving a Hyundai Getz hatchback in the south-east bound lane with no passengers.
At the location of the crash the road followed a relatively gradual curve: to the left from the perspective of Ms Farrell in the Nissan and to the right from the perspective of Mr Langford in the Getz. There was a continuous white painted fog line along the left-hand edge of the traffic lanes, in both directions. Beyond the fog line the shoulder of the roadway was sealed, approximately 2 m to 3 m wide for the north-west bound lane and about 2.2 m wide for the south-east bound lane. A steel guardrail was installed along the outer edge of the shoulder of the south-east bound lane.
It was common ground at the trial that the collision was head-on but offset. Approximately one third of the front of each car, on the driver side, impacted with the corresponding part of the other vehicle. The principal factual issue at trial, which was substantially determinative of whether Ms Farrell drove in a manner dangerous, was whether the collision occurred across the centreline in Mr Langford’s south-east bound lane or whether it was reasonably possible that it may have occurred with the Nissan being wholly on Ms Farrell’s side of the centreline, in the north-west bound lane.
The collision occurred at about 6:20 pm, in daylight, with clear visibility, on a dry road surface. A Crime Scene Officer, Mr Ryan Barker, attended the scene at about 10:30 pm. He took photographs of a number of items on the road surface and other features. He measured the distance of items of interest, on X and Y axes, relative to an established reference point. Mr Barker gave evidence of two scars on the road surface that he described as gouges. He placed markers G and H adjacent to those features and photographed them. He described the appearance of the gouges and he was one of three witnesses who gave opinion evidence as to the location at which the two vehicles had come into collision.
The grounds of appeal against conviction are as follows, after abandonment of grounds 1(a) and 2:
1 His Honour erred in admitting expert opinion evidence of a crime scene officer, Ryan Barker, in that:
b) The witness lacked the specialised knowledge to provide the opinion proffered.
c) The opinion was not based on any specialised knowledge.
3 The verdict was unreasonable or cannot be supported, having regard to the evidence.
1 His Honour erred in his assessment of the objective seriousness of the offending, arriving at a conclusion that was not reasonably open.
3 The sentence was manifestly excessive.
Mr Barker was called as the Crown’s first witness. Through him there were tendered 78 of the photographs he had taken at the scene sometime after 10:30 pm. At the time those photographs were taken the two vehicles were in the positions at which they had come to rest after the collision. It was common ground that both had rotated clockwise after impact. In the case of the Getz, it moved through 180° to face back in the direction from which it had come. It also moved laterally across the road to the east and collided, more or less side on, with the steel guardrail. Its final position was adjacent to the guardrail with its front right corner in contact. The Nissan had rotated through less than 90°. It was positioned at a right angle across the fog line of the north-west bound lane with its front two thirds on the lane and its rear wheels on the sealed shoulder.
The Crown also tendered through Mr Barker a Computer Assisted Design (CAD) drawing of the scene. Marked on the drawing were the final positions of the vehicles and the locations of yellow markers that Mr Ryan had placed on the roadway adjacent to features of potential significance. He identified at marker H a gouge on the road surface in the south-east bound lane, commencing about 20 cm from the centreline. It was approximately 45 cm long. Photographs taken looking south-east along the road show that the gouge extended outward from the centreline at a shallow angle of about 30°. At the end of the gouge furthest from the centreline it had a short curved portion, so that the whole looked like a very elongated J. Mr Barker identified at marker G a gouge that was also in the southbound lane commencing about 90 cm from the centreline, about 30 cm long in a straight line, at an angle of about 70° to the centreline.
Mr Barker described the characteristics of a gouge, as opposed to any other type of scar or mark on a roadway. He also said that the marks at G and H were the only gouge marks he saw at the scene of this collision, having inspected the road surface for a distance of 50 m to the north-west of the stationary vehicles and 50 m to the south-east. The following are his answers about the nature of gouges in a road surface, both generally and in this case:
Q. We have markers G and H and then there are other markers in the background. If you go to photograph 102 on page 67, markers G and H, what were you recording there?
A. Markers G and H were what we previously mentioned as road scars. It’s two gouge marks in the road.
Q. When you say gouge marks is there some particular meaning to the term gouge mark?
A. So it’s the area of most engagement with the vehicles when they collide. It’s a section of the roadway which is dug out as a hard piece of say metal for example is pressed into the bitumen. I would think of it like if you were to stick a knife into a stick of butter and dig a bunch of the butter out, you’d be gouging into the butter.
The notice of appeal as filed included ground 1(a), that the decision to admit expert evidence of Mr Barker involved procedural unfairness. During the hearing of the application the contention of procedural unfairness was not pressed as a separate ground but was relied upon to support an application for leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). Leave is required with respect to the remainder of ground 1 because, as will be seen, at trial defence counsel did not ultimately maintain an objection to Mr Barker’s evidence on the ground of insufficient expertise or failure to apply specialised knowledge in arriving at his opinions. The following summary of the course of Mr Barker’s evidence demonstrates that there was no procedural unfairness.
Before the commencement of the trial, the applicant’s counsel had put the prosecutor on notice that she would object to Mr Barker giving evidence of his opinion as to where on the roadway the collision had taken place. In the course of opening the Crown case, the prosecutor informed his Honour of that expected objection.
At the commencement of Mr Barker’s evidence the Crown adduced from him that he had graduated from a Bachelor of Forensic Science degree course at the University of Western Sydney in 2019. He was admitted to the degree of Master of Forensic Science in 2020, conferred by the same institution. Mr Barker had also completed in 2019 three levels of Forensic Investigator training, undertaken in his employment with the New South Wales Police Force. He said that the third level of that training “touches on motor vehicle collisions and evidence surrounding those”.
After describing his findings at the collision scene, Mr Barker was asked whether he had formed an opinion “about where it was that the point of impact between the vehicles had taken place”. That was objected to on the ground that, having regard to the terms of Mr Barker’s witness statement, his opinion would be based solely on “the location of the road scars and the debris”. The following was submitted:
He does not, in my submission, bring any scientific knowledge to bear on that opinion, and that is why I make the final submission that even if your Honour does conclude that he does have the specialised knowledge, the opinion that he expresses is not wholly or substantially based on it.
The trial judge referred to the possibility of receiving Mr Barker’s opinion provisionally, subject to the Crown later adducing further evidence of his expertise and of his reasoning based upon that expertise. However, that is not what occurred. Instead, before taking Mr Barker’s answer to the question about the point of collision, his Honour allowed the Crown to lead from him further evidence about his expertise and how he applied that expertise to reach the opinion he would give.
Mr Barker described the content of his training, specifically with respect to recognition and categorisation of road surface marks, including “how to identify them and what they could potentially indicate”. He said that he had attended approximately 20 to 25 road crashes between the completion of his training in 2019 and the date of his attendance at the accident site in question. In relation to those other accidents he had been responsible for documenting the scenes in photographs, notes and sketches, collecting portable physical exhibits and examining the vehicles involved for impact damage and consequential damage.
After that further evidence of Mr Barker’s experience and training had been adduced, the following took place:
Q. Bringing that back to your duties at this scene on 16 December of 2020, you’ve given some evidence about what you could observe on the surface of the road and items that seemed to you to be significant. Just dealing with those issues, based on the training you’ve been given and experience in attending such scenes, do you have an opinion about where the likely point of impact between the vehicles was?
[DEFENCE COUNSEL]: Your Honour, there’s an objection, a small objection. I would ask that my learned friend confine the question to based on the experience at the time of conducting that examination and coming to that opinion, given the long period of time that has elapsed.
HIS HONOUR: I understood the question to be about the witness’s opinion now, not at the time. The former might be relevant to the opinion he might have formed at the time.
[DEFENCE COUNSEL]: Yes, your Honour. I don’t press the objection.
HIS HONOUR: Thank you. Do you need the question repeated, Mr Barker?
WITNESS: Yes, please.
CROWN PROSECUTOR:
Q. And to be clear, Detective, I’m talking about the opinion you hold today, and I’m referring back at this stage to markings on the surface of the road or what you recorded as being present at the scene on the surface of the road. Based on the training you were given and the experience between when you did that training and today, what is your opinion today in terms of the point of impact between the vehicles?
A. My opinion, that the point of impact was in the south-east bound lane.
Q. Is there a part of the south-eastern based lane that you specifically would relate to the point of impact between the vehicles?
A. So, I would say in close proximity to markers G and H, which had the gouge marks in the road.
Q. Can you explain to me why it is that you regard that as the point of impact.
A. Yes. As we touched on earlier, when talking about gouge marks, they are generally the area of most engagement between the vehicles and the roadway, normally caused by a downward pressure, which is generally what occurs when two vehicles collide at high speed.
Q. I won’t take you back now to them, but in terms of the photographs we saw of the damage to each of the motor vehicles, was that damage that, in your opinion, was consistent with an impact between vehicles travelling at speed?
A. Yes, that’s correct.
Q. Was it a direct frontal impact between the vehicles, or from your observations of the damage to the vehicles, was there an angle involved?
A. I would categorise it as being an impact between the driver’s side front corner of each vehicle.
Q. That’s the primary area of contact between the vehicles, is it?
A. That’s correct.
Defence counsel then cross-examined Mr Barker and he expressed the opinion that each of the gouges at G and H would have been made by the underside of a vehicle. He did not examine the underside of either the Nissan or the Getz to try to identify what part of either vehicle may have caused either gouge. He agreed that he had not received “any training in methodology for collision reconstruction”. During cross-examination Mr Barker was not challenged as to the sufficiency of his experience or training to enable him to form an opinion about where the subject collision took place. There was no cross-examination to suggest that his application of expertise to the circumstances of the subject accident was deficient. In her questioning, counsel did not specify any technique for determining the location of a collision point that is important in the established field of knowledge. She did not put to Mr Barker that he lacked training or skill with respect to such a technique.
After re-examination by the Crown, Mr Barker was excused. Defence counsel then stated that she had thought more evidence would be adduced relevant to her initial objection, prior to his Honour ruling on whether Mr Baker’s opinion would be received. It is not apparent how the course of events could have been misapprehended in that way, given that further evidence in chief had been adduced from Mr Barker, both as to his expertise and as to the way he had applied it in forming his opinion. As seen from the passage of transcript quoted above, when the Crown then returned to asking Mr Barker for his opinion about where the collision had taken place, counsel voiced only “a small objection” concerning whether the witness relied upon his experience as at the date of his inspection of the accident scene or as at the date of the trial. After that had been clarified, defence counsel did not press her objection. There was no submission at that point that the expertise, experience and reasoning of which Mr Barker had given evidence was insufficient to support the admissibility of his opinion.
Nevertheless, at this late stage after Mr Barker had been excused, counsel belatedly submitted the following:
Your Honour, the objection would still be pressed on the basis that [Mr] Barker is not an expert in relation to collision reconstruction, which requires a different skill set in order to be able to provide an opinion on the point of impact of a collision, as opposed to identify items that may go to the reasoning process.
His Honour pointed out that in cross-examination Mr Barker was not challenged about the nature of his training or the sufficiency of it to qualify him to opine about the point of impact. Defence counsel said, “I accept that I didn’t challenge it” and reiterated that she had “misunderstood the way in which the objection was proceeding”. The trial judge noted that it would still be possible to have the evidence struck out but asked on what basis that could be done, in light of what Mr Barker had said as to his training and experience and his application of acquired expertise to the physical evidence at the scene. Defence counsel then shifted ground and sought exclusion on the basis that the probative value of Mr Barker’s opinion was “low and that it would be outweighed by unfair prejudice, even if accepted at its highest”.
His Honour concluded the subject as follows:
[The] situation now is that the evidence [of Mr Barker’s opinion] is in. It may be that it is ultimately just a matter of what weight it might warrant. And that’s a matter that could be addressed in submissions, particularly in the context of a judge-alone trial such as this. But if you wish to make an application that it be struck out retrospectively, then feel free to do so and we’ll revisit that once you’ve had time to formulate your argument about it.
The offer was not taken up at any subsequent point in the trial. In final address defence counsel’s arguments about expert opinion on the location of the collision were confined to the differences between the evidence of Mr Gavin Lennon, a Crime Scene Officer specialised in collision reconstruction, and the evidence of Mr Grant Johnston, a forensic consulting engineer with specialised training and knowledge in motor vehicle crashes and collisions, called in the defence case. In closing, defence counsel submitted that Mr Johnston’s opinion that the marks at G and H were mere surface scratches, rather than gouges, should be preferred over Mr Barker’s description of them as gouges.
On that sequence of events, the applicant’s argument as to procedural unfairness is unsupportable and must be rejected. Defence counsel had full opportunity to challenge Mr Barker’s evidence in chief regarding the foundations for his opinion about the point of collision. There was no cross-examination as to the sufficiency of his expertise or reasoning. The trial judge nevertheless offered to entertain an application to strike out Mr Barker’s opinion when counsel had considered her position. The offer was not availed of. When the objection was reformulated to one of prejudice outweighing probative value, counsel was assured that there would be opportunity to advance that argument in closing submissions. Procedural fairness was fully accorded.
In written submissions on the appeal the applicant disputed the admissibility of both Mr Barker’s opinion that each of the road surface scars at G and H was a gouge mark caused by impact of the underside of a vehicle and his wider opinion that the point of collision was within the south-east bound lane.
As to the first opinion, the trial transcript shows that no objection was taken at any stage to Mr Barker stating that the marks at G and H were gouges, rather than any other type of road damage. Mr Barker’s evidence that the gouges were caused by impact of the underside of a vehicle was adduced by defence counsel herself, in cross-examination. No questions were asked to suggest that the witness had an insufficient basis for either his description of the gouges or his opinion as to their cause. On the appeal, it was submitted in writing that the evidence of Mr Barker’s training was insufficiently detailed to establish that he had the capacity to identify one type of mark from another. That was not argued at trial and no questions were asked to suggest that the training was deficient or superficial.
Further, if objection had been taken to Mr Barker’s description of the gouges it could not have been sustained. His Honour was correct to find, as he did in his reasons for the verdicts, that Mr Barker had ample expertise from which to draw those conclusions. The witness described training he had received specifically directed to the identification of road surface damage. His experience in applying that training included the examination of between 20 and 25 road crash scenes prior to the date of this accident.
As to the second and broader aspect of Mr Barker’s opinion evidence, that the gouge marks indicated that the collision had taken place in the south-east bound lane, the three fundamental requirements for reception of opinion evidence, as summarised in the judgment of Gordon and Edelman JJ in Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29 at [222]-[223], were satisfied by the unchallenged evidence of Mr Barker paraphrased at [16], [18] and [20] above.
First, the evidence showed that examining, understanding and interpreting the features of a road collision scene is an accepted field of expertise, in which particular features are recognised as commonly recurring and are known to be associated with forces and mechanical events that reveal and explain how a collision has occurred. Mr Barker’s evidence showed that he had acquired that expertise.
Secondly, Mr Barker identified the factual basis for his opinion about the location of the collision, namely, the nature and position of the gouge marks. Thirdly, he exposed the reasoning involved in his application of expertise to that factual basis. He explained that he applied his expert knowledge that such gouge marks are caused by downward pressure of the underside of a motor vehicle onto the road surface at the point of collision, where the front of each vehicle is depressed.
Grounds 1(b) and (c) are not made out. Mr Barker’s opinions were correctly received pursuant to s 79 of the Evidence Act 1995 (NSW).
In addition to the gouge marks at G and H, Mr Barker located and photographed a piece of metal embedded in the surface of the south-east bound lane at marker K, approximately 4.4 m south-east of the rear of the Getz in its post-accident position. Both parties discounted the feature at K as not being associated with the collision. Accordingly, the extracts of evidence quoted below do not include anything that the witnesses said about that feature.
Mr Lennon did not attend the scene but relied upon Mr Barker’s photographs and measurements. His report included the following:
21 […] [When] a vehicle undergoes a sharp deceleration as the result of an external force, the weight of the vehicle will shift to the front, loading the front suspension and often causing the hard undercarriage of the vehicle to strike the roadway surface, leaving gouges, scrapes and scratches. […]
22 Road scars were identified by Crime Scene staff [referring to the road damage at markers G and H]. These scars were attributed to this collision and were located wholly within the [south-east] bound lane […].
The premise that the gouge marks at G and H were caused by the collision was supported both by Mr Barker’s evidence and by information obtained from Muswellbrook Shire Council. The Officer in Charge of the investigation ascertained from the Council that the relevant section of Thomas Mitchell Drive had been reconstructed in 2015, with the laying of road pavement and bitumen sealing. No further work had been done to the road since that time, apart from possible corrective action under warranty during the first 12 months. New South Wales Police had recorded seven major traffic collisions on Thomas Mitchell Drive since 2015 but none at or near the site of the subject collision.
In oral evidence Mr Lennon said that despite limitations imposed by the quality of the photographs of the road marks at G and H, he considered they were consistent with being gouges. Mr Lennon said that the fact that the marks were short and had “some depth to them” indicated they were more likely to be point of impact gouges rather than scrape marks caused by part of a vehicle passing over the surface after impact. Mr Lennon said the two gouges were separated by about 1 m, which suggested that two vehicles had left them, rather than one.
Mr Lennon further opined, in cross-examination, that given the Getz was engaged by the Nissan at its front right side, that would be the lowest point of the vehicle at the time of maximum engagement. Therefore, whichever of the gouges had been left by the Getz would signify the location of the far right-hand side of the vehicle at impact. I observe that, if accepted, that evidence would strongly support a conclusion that the Getz was on its correct side of the centreline at the point of collision, having regard to the location of the gouges relative to the centre line.
Mr Johnston’s report included the following on the subject of the gouge marks:
5.6 It is agreed that gouge marks where one or both vehicles undercarriages are forced downwards onto the road surface during the period of maximum engagement and removing a quantity of material and creating a physical gouge in the surface can be indicative of the forces which occurred during actual impact phase. This period of maximum engagement typically occurs over a very short period of around 75 to 200 milliseconds which means that these marks are usually very close to the point of impact.
5.7 […] If a specific source of the [gouge] mark is not identified or checked for [as in the present case] then it could be either vehicle’s undercarriage in the general area of the primary area of engagement between the vehicles.
5.8 […] [Because of the limited quality of the photographs] I am not sufficiently confident to describe these marks as gouge marks which occurred during the impact phase of the incident. They do not seem to have intruded into the surface indicative of a large downward force and in some images there appears to be a lighter coloured transfer associated with the marks which is more indicative of painted components such as panels as opposed to hard undercarriage structures such as suspension components which are usually not painted. It is therefore my opinion that these marks could be consistent with or I would describe as scratch marks on the surface, which can occur at any time where a hard object on a damaged vehicle is robbing across the road surface specifically during the post-impact phase which could be anywhere from impact to rest.
5.9 Another significant factor about the marks is that they appear to be relatively straight over most of their length. In my experience there is often a distinct kink or curvature in gouge marks formed specifically during the impact phase as the vehicles are rapidly changing direction during the impact when the vehicles are forced downward at impact as they rotate rapidly around the centroid of the contact point often while their rear ends lift up. The shape does not exclude them from being gouge marks at around the time of impact but the presence of a more distinct change of direction would more likely than not confirm that they occurred around the time of impact.
5.10 Therefore, in this instance these marks are similar to the type of scratch marks made by the underneath of a vehicle as it moves away from the point of impact towards its rest position and this cannot be excluded in this instance.
5.11 If the court was to accept that these were marks made from one or both vehicles then it must follow that the footprint of the vehicle creating these marks was over this point of the roadway at the time the marks were made.
5.1 If it can be established that the marks were made by the Nissan Pulsar, then there would be no dispute that the Nissan must have been over the centreline at the moment of impact into the opposing lane by some distance in order for part of the undercarriage to have created those marks either at or shortly after impact. It is my opinion that this cannot be established.
5.13 If however, the marks were from the [Getz (as stated in oral evidence)] then it would depend on exactly what component made those marks as to whether the Hyundai was wholly on its own side of the road or was also encroaching upon the centreline at the time of impact.
5.14 In my opinion on the evidence I have been provided there is nothing to indicate with any reasonable level of probability that these marks were point of impact gouges. There is also no reliable evidence to confirm which vehicle made the marks and during what phase of the collision.
5.15 If it can be established that these marks were made by the Hyundai then at least the part of the Hyundai creating the marks must have been on its correct side of the centreline at the time the marks were made but it would depend on how far from the right side of the vehicle that object which created the marks was located to determine if the right side of the Hyundai was wholly on its correct side when the marks were created.
5.16 In my opinion on the evidence I have been provided there is nothing to indicate with any reasonable level of probability that these marks were point of impact gouges created by either vehicle.
In cross-examination Mr Johnston accepted that the road damage at H “looks like an impact type mark”, whereas he thought the damage at G could have been caused not by impact downward onto the road surface but by lateral movement of a part of a vehicle across a surface. He nevertheless accepted that it was possible the mark at G was an impact gouge mark and “if it was made by a vehicle, it was made by the Getz”. Mr Johnston did not agree that it would be “the very right edge” of a vehicle engaged in such a collision that would leave a gouge mark on the road surface. He said typically the undercarriage inside the front wheel suspension components would gouge the road surface.
Having been reminded of the photographs that showed the front driver side of the Getz very substantially damaged, with the front wheel pushed back into the driver compartment, Mr Johnston said that in the collision there would have been sufficient downward force on the front of the Getz to cause a gouge mark to be made on the road surface by some component close to or forming part of the suspension or steering that had been damaged on the right-hand side. He said the same was possible with respect to the Nissan.
Mr Johnston said that the road damage at H could be an impact gouge mark and could have been caused by a suspension component at the front right of the Nissan. He said the impact between the vehicles was more likely to have taken place at H rather than in between G and H, which he estimated to be separated by 1.2 m. He acknowledged that the Nissan would have been over the centreline at the point of collision if it made the mark at H.
23 When debris falls from the vehicle during a collision, the forces of the collision will determine the direction in which the debris will travel. Before a collision, the items that after impact will become debris are travelling at the same speed as the vehicle to which they are attached. When a vehicle suddenly decelerates due to a collision, the debris is knocked loose, falls and makes contact with the roadway surface at some distance from the actual point of impact. In head-on collisions between vehicles of similar weight, travelling at approximately the same speed at the time of impact, the underbody debris will often be found piled between the two vehicles.
24 The debris field documented in the crime scene photos related to this collision show a concentration of debris situated to the east of the roadway scars identified by Crime Scene staff. This debris extended from this position through to the resting positions of both vehicles […].
In cross-examination Mr Lennon adhered to his opinion about the concentration of debris in the south-east bound lane and the significance of that as an indicator that the collision occurred in that lane.
Mr Johnston covered the subject of collision debris in the following paragraphs of his report:
5.30 Solid debris can be a legitimate tool but more often than not is generally a poor indicator to establish a precise area of impact. It is also necessary to know from which part of each vehicle all or some of the items may have originated and I do not know whether any attempt was made to identify which vehicle the items originated from.
5.31 In a partial overlap head-on collision of this type there is often a fan of evidence stretching both ways from the area of impact downstream of each vehicle from which the objects emanated. I could not confidently identify any such evidence in this instance.
5.32 In this instance, various pieces of black plastic were identified. I do not know if the vehicles were examined in an attempt to determine which vehicle had black plastic similar to the pieces found and if so which vehicle these pieces emanated from. I also note that a battery was located a short distance behind the Hyundai Getz and although it would seem likely that it came from that vehicle I do not specifically know if they checked to see if it came from that vehicle.
26 Whilst I could not identify whether the fluid located on the roadway as a result of this collision was spatter or dribble due to the fact that emergency services appear to have placed absorption material prior to the photographs being taken, the location of the fluid is clearly indicated. From the photographs it is apparent that the fluid trail left by the Getz begins in the [south-east bound] lane and extends through the position of final rest on the eastern extremity of the roadway. It was noted that there did not appear to be any significant amount of fluid on the roadway in the vicinity of the area of impact within the [north-east bound] lane.
28 The fluid located within the [north-west bound] lane was seen in the photos to begin underneath the rest position of the Nissan and run-off toward the western side of the roadway. This fluid is consistent with being a puddle and is not in any way indicative of the area of impact between the Getz and the Nissan.
[It is] a rupture of a vessel during the impact itself. And that fluid that was deposited was either deposited under pressure. So it may have come from, for instance, the radiator of a vehicle and been sprayed down onto the road. Or the vessel that was ruptured has completely emptied at the time causing the fluid to remain in that one area, rather than being dispersed throughout as the vehicle travels to its rest position.
5.27 Therefore, if this fluid trail emanated from the Hyundai [Getz] and it commenced at or around the moment of impact it would suggest that the footprint of the battery or radiator from which the trail may have emanated is likely to have been in the middle of the road pretty much on the barrier lines. […].
5.28 Therefore, it is my opinion that if I use the location of the fluid deposit and trail as the primary source of evidence it would suggest that the part of the Hyundai [Getz] from which the fluid was released was at least on the centreline and could have indeed been further over if the release was shortly after impact.
The roadway scarring, debris and fluid trail indicate that the impact occurred within the [south-east bound] lane.
The damage profiles and estimated [Principal Direction of Forces] indicate that this collision was an offset head-on style collision
Mr Johnson concluded his report with a diagram marked Figure 3, which showed the Getz straddling the centreline at the time of the collision and the Nissan travelling very close to the centreline, but within the north-west bound lane, at impact. The hypothesis reflected in this diagram rested upon Mr Johnston’s inference from the photographs of fluids on the roadway, as referred to at par 5.28 of his report.
Mr Johnson postulated the following:
5.35 [Figure 3] suggests that the Hyundai Getz could have been straddling the centre line at the time of the collision, and the Nissan Pulsar may have been travelling to the right side of its lane. If this scenario is accepted, then the scratch marks on the road surface (points ‘G’ and ‘H’) must have been made by the underneath of the Hyundai as it moved to its rest position. The remaining debris identified by CSO Barker could have been projected from the vehicles whilst they were within the area of impact and rotating to their rest positions.
5.36 It is my opinion that based on the evidence that has been provided there is no definitive evidence to pinpoint the exact location of the impact. If accepted that the alleged ‘gouge’ marks [...] are not consistent with having been made at impact it may be that the fluid trail is accepted as a more accurate indicator of the area of impact.
5.37 I would concede that there are items of evidence that when interpreted in a specific way or when considered in the way that they are most commonly identified, could suggest that both of the vehicles may have been partly over the centre line at the time of the collision depending on what weight is given to each piece of evidence. […]
5.38 There is evidence that can be used to support one or more opinions relative to how this incident occurred but there does not appear to be any evidence which is sufficiently robust to suggest that one option is significantly more likely than the other and there is certainly no evidence that I would consider which is conclusive of what occurred.
But I didn’t base that at all on the gouge marks. I was ignoring effectively the gouge marks. It was the point of impact based on the fluid spill and then saying, “Are the gouge marks related to this incident? Were they possibly made in this incident?” But it’s not based on the – the assumption that they necessarily were.
[…]
CROWN PROSECUTOR: And all I’m suggesting to you is that figure 5.3 is unreliable in terms of the position of the Hyundai Getz and the Nissan, knowing what we know about the other pieces of evidence such as the gouge marks.
WITNESS JOHNSTON: As I say there in paragraph 5.35, if this scenario is accepted, then the scratch marks on the road surface points G and H – and I’ve called them “scratch” - I - only because that’s the word I used at that time - “Must have been made by the underneath of the Hyundai as it moved to its rest position”.
So what I was saying there was, it goes over those points. If they’re not impact gouges, they’re just marks from the - the Hyundai landing. Because it - it goes up in the air and then lands, that’s roughly where it is. So it didn’t exclude it. But as I said, that was based purely on the fluid spill. The gouges were just secondary, could I explain them? As opposed to, they weren’t part of the input to that - to that diagram at all.
[…]
It’s - the rear of the vehicle is lifted at impact in a head-on collision typically, and then will land shortly after that as it rotates. Whether something made those marks or not, I don’t know. But as I said, it’s not based on those marks, they’re just there. I agree that if H is an impact mark, it’s not consistent.
The applicant submitted in writing, that “the evidence involved the assessment of competing expert opinions”. Certainly, the expert opinions had to be assessed but the fact-finding exercise was not confined to a choice between their respective conclusions. The way the parties joined and litigated the issues required the judge to decide whether, on the circumstantial evidence of post-accident indicia at the collision scene, he could infer beyond reasonable doubt that the applicant had caused the accident by crossing the centreline into the south-east bound lane. The expert opinions supplemented the evidence of physical features at the scene, by offering explanations of how those physical features may have been caused. The ultimate question for his Honour depended upon inference from all the features, expertly explained and taken as a whole. Of course, in order to find the applicant guilty of either charge his Honour had to be satisfied that the circumstances were not explicable by any reasonable hypothesis consistent with innocence.
His Honour’s reasoning at the conclusion of his verdict judgment was as follows:
The question is ultimately whether the evidence with its limitations enables findings to the standard required. The evidence comprises the damage to the vehicles, road scars, debris and fluid trails. All the experts concurred gouge marks were the greatest indicia of the point of impact.
Johnston's hypothesis [in Figure 3] was premised solely on fluids. Yet he conceded the mark at H was not consistent with his hypothesis if it was an impact gouge mark. Johnston discounted the marks at G and H as impact gouge marks for several reasons. Impact gouge marks reflect a large downward force. He did not accept the marks at G and H had intruded into the surface. He suggested they appeared consistent with scratch marks from objects running across it. He also thought the marks appeared relatively straight. Impact gouge marks typically had a distinct kink. His reasons for discounting the marks at G and H as impact gouge marks were unfounded. This is particularly evident with the mark at H. Photos clearly depict a distinct kink in the mark. They also depict penetration into the road surface.
Barker had the training and qualifications to make informed observations about the marks. He examined them at the scene and concluded they were gouge marks. There is no good reason to doubt this. The photographs together with Barker's evidence of his examination at the scene establish the mark at H at least was an impact gouge mark. The mark at G considered in isolation is less conclusive in its appearance as depicted in photographs. Barker examined this at the scene too and concluded it was an impact gouge mark. Its distance from the mark at H corresponds with the distance between componentry at the front undercarriage of the vehicles at impact. Johnston agreed the orientation of the mark at G was consistent with its causation in rotation immediately post-impact. The nature, proximity and orientation of these marks together confirm both are impact gouge marks. This evidence in context is a strong indicator the [Nissan] caused the mark at H and the Getz the mark at G. This is consistent with all the other evidence regarding the circumstances of the collision. The concentration of debris beside these marks is consistent with its dispersion as the vehicles separated immediately post-impact.
The evidence as to the fluids is more ambiguous as they could not be precisely measured or their nature ascertained. Nor could the fluids be attributed to specific vehicles or components within them. But the location of the fluid areas is consistent with point of impact as indicated with the gouge marks. The larger pool was almost certainly dribble from the Getz from its position of rest after the impact. But the smaller pool was almost certainly spatter from a vessel in one vehicle in the impact. The damage to the vehicles confirms they overlapped by about a third at impact.
All of these circumstances established on the evidence must be viewed together. The damage to the vehicles, the road scars, the debris concentration and fluid areas are all coherent as to the point of impact. The only reasonable inference arising from the evidence viewed as a whole is that the point of impact was within the southeast-bound lane. The [Nissan] must have been over the centre line into the southeast-bound at the time of impact. The precise extent to which the [Nissan] was over the centre line cannot be ascertained but it must have been substantially over the centre line. Componentry from its undercarriage almost certainly caused the impact gouge mark at H. This was 20 centimetres from the centre line into the southeast-bound lane. Componentry inside its driver side front wheel was about 30 centimetres from its right-hand outer edge.
The evidence as a whole thus establishes beyond reasonable doubt the following facts. The accused drove her vehicle into the southeast-bound lane of the roadway. This was into the path of oncoming traffic. This inevitably risked collision with vehicles travelling the opposite direction. It thus endangered the drivers and any passengers of those vehicles. The accused thus drove in a manger dangerous to others at the time of impact.
Where this Court is required to determine whether a verdict of guilty entered by a judge sitting alone is unreasonable, or cannot be supported, having regard to the evidence, the question is to be decided under the guidance of M v The Queen (1994) 181 CLR 487; [1994] HCA 63, in exactly the same way as if the applicant had been tried by jury. The question is whether the Court thinks that upon the whole of the evidence it was open to the trial judge to be satisfied beyond reasonable doubt that the applicant was guilty, that being a question of fact that the Court must decide by making its own independent assessment of the evidence. See Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25.
Upon consideration of the entire trial record, in my view it was open to the learned judge in this case to be satisfied beyond reasonable doubt that the applicant drove her vehicle across the centreline into the south-east bound lane, thereby risking collision with an oncoming vehicle – a risk that came to pass. The path by which that conclusion was open is lucidly explained in the concluding portion of his Honour’s reasons, quoted at length above. Each step in the learned judge’s reasoning is soundly based upon assessments of the evidence that it was well open to his Honour to make. I perceive no basis for any reasonable doubt about the conclusion or about the verdicts of guilty that inexorably followed.
As to the remaining elements of the offences, his Honour held as follows:
The agreed facts confirm the deceased died from injuries sustained in the collision. This establishes all the elements of Count 1 beyond reasonable doubt. The agreed facts also confirm the accused's sister sustained grievous bodily harm in the collision. This establishes all the elements of Count 2 beyond reasonable doubt.
Pursuant to ground 1 in the sentence appeal, the applicant submits that his Honour’s finding that the offences “are moderate in objective seriousness for their respective kinds” was not reasonably open. His Honour found that the applicant’s car must have been substantially over the centreline, having regard to the evidence considered in determining criminal liability. The length of time for which the applicant had driven over the centreline and into the south-east bound lane was not established by any direct evidence. In a recorded interview with police the applicant denied any recollection of the collision. Visibility in both directions was good and the evidence did not establish that either vehicle had swerved to avoid the other, despite there being wide shoulders that would have permitted evasive action.
From those considerations the applicant argues that her vehicle must have “intruded onto the wrong side of the road almost immediately prior to the collision, such that the deceased did not have time to react”. The following further submissions are made:
The only reasonably open finding was that [the applicant] drove over the centreline moments before the collision, such that the length of the journey during which others were put at risk was momentary. It follows that the conduct involved either momentary inattention or misjudgement. This is the case even if the cause of the inattention or misjudgement is not known.
Upon that analysis the applicant submits that “the only reasonable finding was that the offending fell in the low range”.
I do not accept that brief transgression into the path of oncoming traffic is inherently less dangerous or grave than more prolonged driving on the wrong side of the road. It depends upon the circumstances. The evidence concerning this accident is consistent with the applicant having crossed the line very shortly before the collision. That would mean that Mr Langford, driving in the south-east bound lane in his Getz motor vehicle, had no chance to avoid the collision that killed him, for example by blowing his horn, flashing his lights or swerving to his left onto the shoulder of the roadway. In a variety of situations, momentary inattention may give rise to greater or lesser danger. Here, if it be the case that the applicant was only momentarily across the centreline before the collision and that that occurred only as a result of brief inattention, it nevertheless caused her to veer into Mr Langford’s path when he was nearly upon her. That was momentary inattention that gave rise to very great danger.
There is no error in his Honour’s evaluation of the features of the offending that contributed to its relative gravity. The applicant directs ground 1 to the learned judge’s placement of the offending on a notional scale of seriousness: “moderate” rather than “in the low range”. That is not, of itself an error. His Honour was not bound to locate the offending on such a notional scale: see Daher v R [2026] NSWCCA 26 at [12]-[13] (Adams CJ at CL, Boulten J agreeing at [68]), [50]-[55] (Fagan J). See also the numerous other decisions cited in that case. Scalar classification may, or may not, be helpful in any given case, according to the wide range of judicial views on that subject. However, provided all circumstances bearing upon objective gravity are taken into account, as they were in this case, error cannot shown by challenging the use of one word label for the relative seriousness of the offending.
Ground 1 should be rejected.
At the time of the offences the applicant was 20 years old and she is now 26. She had only a learner permit and was not accompanied by a licensed driver. The judge accepted that her mother had pressured her into driving. She was on conditional liberty at the time of the accident, pursuant to a Community Correction Order for two larcenies committed on 18 March 2020.
The applicant is of Aboriginal background, with no memory of her father and “fraught” relationships with other family members. Her mother abused substances when the applicant was young. She was removed from parental care at the age of about four or five years. The applicant enjoyed two supportive foster placements over a total of 14 years but her circumstances have been unstable ever since, including periods of homelessness. The applicant left school in Year 11.
The applicant has two young children, now aged six and four. She is no longer in a relationship with their father although he shares parental responsibilities. The applicant is socially isolated and has suffered anxiety and depression since her mid-teens. Those symptoms have worsened since the accident. The judge found no evidence that any mental condition had contributed to the commission of the offences in such a way as to reduce her moral culpability but he was satisfied that her mental condition slightly reduced the suitability of the case for a sentence that would reflect general deterrence. The judge concluded that her experience of prison would be more onerous than usual.
His Honour was satisfied that the applicant was remorseful, subject to the qualification that there is no evidence she has accepted responsibility for driving dangerously. The learned judge also accepted that the applicant’s prospects of rehabilitation appeared reasonably good and that there was a relatively low likelihood that she would reoffend. His Honour did not consider that specific deterrence need be given any great weight. He took account of her youth and the need for emphasis on rehabilitation. At the date of sentence being passed, 18 December 2025, the applicant was still suffering chronic pain and restricted mobility and function as a result of injuries she sustained in the collision. His Honour took account of those circumstances and also made allowance for delay in finalisation of the proceedings as a factor favouring moderation of the sentence
His Honour compared features of the applicant’s case with common features of this type of offending, as considered in the guideline judgment, R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343. Four days after the hearing of Ms Farrell’s application, on 18 September 2026, the Court delivered its decision in Cripps v R (s 52A guideline judgment) [2026] NSWCCA 144. That decision revoked the guideline status of R v Whyte. The parties were given the opportunity make further written submissions arising from that development if they saw the need but they did not. The decision in Cripps v R does not impact upon the assessment of whether the sentence imposed in the present case was manifestly excessive.
In Cripps v R at [158] this Court listed 15 matters that should be regarded as relevant to the objective seriousness of offences against s 52A of the Crimes Act. Of those matters, the only ones engaged by the facts of the present case are (1) the extent and nature of the injuries inflicted and (2) the number of people put at risk. Those considerations were taken into account by the sentencing judge, including, with respect to (2), that the infant travelling in a baby seat in the applicant’s vehicle was put at risk, although fortuitously not harmed.
The indicative sentences imposed by his Honour (see [4] above) are within the reasonable range of the judge’s sentencing discretion, taking into account all relevant sentencing factors. The degree of notional accumulation represented by the aggregate sentence is warranted, considering the consequences of the collision for two separate victims. His Honour found special circumstances and fixed a non-parole period at approximately 54% of the aggregate head sentence, representing a substantial departure from the statutory norm and significant leniency to the applicant.
Upon all the above considerations it cannot be said that the sentence imposed on the applicant is manifestly excessive. Ground 3 of the sentence appeal should be rejected.
I propose the following orders:
Grant leave to appeal against conviction and sentence.
Dismiss the appeal against conviction and sentence.
EMMETT J: I have read the reasons of Fagan J. I have also conducted by own review of the evidence. Based on all the evidence, especially the evidence as to the gouge marks, the debris field and the fluid deposits, it was open to the primary judge to be satisfied beyond reasonable doubt as to the applicant’s guilt. I agree with the reasons of Fagan J in relation to both conviction and sentence, and with the orders proposed.
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Farrell
R
[2026] NSWCCA 144
(2022) 274 CLR 651
(2015) 256 CLR 47
(2023) 278 CLR 323
(1994) 181 CLR 487
(2002) 55 NSWLR 252