R v Sleiman

A judge alone trial

1. Where a trial is conducted without a jury the judge has a duty, not to just return a verdict but to expose clearly and, if possible succinctly, their reasoning process. The decision must include all fundamental propositions, principles of law and any necessary warnings or cautions that apply and, thus, operate to guide the evaluation of the evidence. The judge is required to summarise the crucial arguments of the parties, formulate the issues for decision and resolve all issues of law and fact that need to be determined so as to justify the verdict reached.
2. It is fundamental to any criminal trial that the prosecution must prove each element of the offence beyond reasonable doubt. No onus is placed on the accused to disprove any element. Accordingly, no adverse inference can be drawn from an accused's failure to give evidence. He is not required to give evidence to discharge any evidentiary onus on him to establish a defence. His failure to give evidence cannot be taken into account in any way.

Disputed Facts on Sentence

1. While many facts were admitted the proof of any disputed fact must occur in the context of the proceedings concerned. I am obliged to make my own assessment of the evidence as part of my overall synthesis of relevant factors. Matters in mitigation must be established on the balance of probabilities; matters in aggravation of penalty must be established beyond reasonable doubt: Olbrich v the Queen (1999) 199 CLR 270; [1999] HCA 54. Sometimes a sentencing court must sentence according to what is known or agreed. A sentencing judge who is not satisfied of some matter urged in plea on behalf of the offender does not have to sentence the offender on the basis of that contention unless the prosecution prove the contrary beyond reasonable doubt: Olbrich at [24].

Matters not in significant dispute

1. Mr Sleiman was born in September 2001. He had his P1 provisional driver's licence. His licence stipulated a number of conditions, including that he: 1. Not drive a prohibited vehicle (that is, a vehicle with prohibited modifications); 2. Display P-plates on the outside of the vehicle; 3. Never drive over the maximum speed limit of 90 km/h.
2. During the morning of 25 April 2020, Mr Sleiman and Emrah Nokic (the deceased - born December 2000) made arrangements via Instagram messages to meet at Mr Sleiman's home at Fairfield and go for a drive. Mr Sleiman, with Mr Nokic in the front passenger seat, drove south to the Royal National Park, in Mr Sleiman's Nissan. It was daytime, the roadway and surrounding area were dry and visibility was good. It appears they entered the National Park at Waterfall and then headed south east down McKell Avenue before turning into Lady Wakehurst Drive and heading south toward Otford.
3. Lady Wakehurst Drive is the main road within the Royal National Park. It runs in a generally north-south direction. It a winding road and travels in varying directions. There is a single designated lane in either direction separated by dual unbroken centre lines. The roadway is lined by dense bushland.
4. After driving about 6 km from the intersection Mr Sleiman lost control of his Nissan, it left the road, hit a tree and Mr Nokic was killed. The impact occurred south of the Cedar Creek picnic area and about 240 metres before the intersection with the Hacking River Fire trail.
5. At the time it began to leave the roadway the Nissan was in the lane heading south but given the winding nature of the road it was in fact travelling north. It had just negotiated a curve. Immediately prior to the impact the Nissan travelled in a north/east direction across the white double centre unbroken lines. It then continued across the opposing lane and left the roadway via the eastern kerb alignment. It continued down a dirt embankment for five metres where it collided with a large tree. The vehicle sustained catastrophic damage, primarily to the passenger side of the vehicle where the deceased had been sitting.
6. It is not in dispute that Mr Nokic died as a result of the multiple severe injuries he received in the incident.
7. This section of the roadway was restricted to a maximum speed of 60 km/h. Bordering each lane is a single unbroken edge or fog line. The north and south bound lanes are separated by dual white unbroken centre lines. The road surface was worn in parts, particularly where tyres regularly meet the road surface. It was made up of asphaltic/bitumen material in reasonably good condition. No surface contaminants or obstacles were found. There was some wear to the road, the extent of which was in contention.
8. Standard retro-reflective speed restriction signs specifying maximum speed of 60 km/h were erected approximately 6 kilometres, 5.5 kilometres, 3.5 kilometres and 350 metres before the impact site. There were also numerous speed advisory signs ranging from 35km/h to 55 km/h.
9. There is a right-hand bend approximately 350 metres prior to the impact site, entering a generally straight section of the roadway of approximately 370 metres prior to a left-hand bend. Beyond the impact site, but visible from it, was a 45 km/h speed advisory sign immediately prior to a left-hand bend. The Nissan left the road on the approach to this bend.

Time Line

1. The following times are relatively uncontroversial or if contested are well supported by the times logged on phone records or other evidence. A helpful table was tendered: Exhibit A tab 22.
2. Mr Bonnici, counsel for Mr Sleiman, submitted I would be wary of accepting times taken from phones as there was no expert evidence to support their accuracy. I do not accept that submission for two reasons: 1. The documents including extracts speak for themselves: s 48 Evidence Act. There is no reason to indicate any inaccuracy in the times recorded and later reproduced in table form as Exhibit A tab 22. And; 2. Senior Constable Cordina checked the times on the two critical mobile phones; that of Mr Sleiman and Mr Nokic, against one another and they matched.
3. Mr Sleiman and Mr Nokic chatted using Instagram on the morning of 25 April 2020. They arranged to meet and met at about 12:30. They then drove in the Nissan south toward the Royal National Park. At 1:30 Mr B left the "Burgh" track-head carpark (Exhibit A tab 5) and drove north toward Waterfall via Lady Wakehurst Drive and McKell Avenue. After he turned into McKell Avenue he saw a blue Nissan Silvia heading down hill toward him. It was moving "extremely fast" and was over on his side of the road: Exhibit H answer 13 - as edited following my exclusion of some opinion evidence.
4. At 13:29:07, as the Nissan drove southward down Lady Wakehurst Drive, Mr Nokic took a short video from the front passenger seat: Exhibit A tab 23 disc video 1. That recording commenced just under 6 km from the impact site: Exhibit A tab 2.
5. Immediately before the Nissan left the roadway Mr Nokic took another 8 second video just after the Nissan passed a 60km/h sign before the impact site: Exhibit A tab 23 disc video 1. That video stopped just before the Nissan left the roadway; it did not have a time stamp.
6. The crash must have occurred therefore about 13:31 as at 13:31:36 movement activity is recorded on Mr Sleiman's phone. The time corresponds to his having extricated himself from the now crashed Nissan. That recorded movement is 2 minutes 29 seconds after Video 1 commenced.
7. At 13:33:18 and 13:33:21 Mr Sleiman tried to use Instagram on his phone. At 13:33:55 he made a call to "Sam D," which was unanswered. At 13:34:10 Mr Sleiman again tried to use Instagram on his phone. At 13:43:23 and 13:34:51 he took two short videos of the crashed Nissan: Exhibit A tab19. The second shows the crushed passenger side of the Nissan.
8. After that further attempts were made to use Instagram. At 13:36:39 he rang and spoke to his friend "Sam D" for 1 minute 20 seconds: Exhibit B tab 2. During this telephone conversation:

• Mr Sleiman told "Sam D" that he had got in an accident;
• Mr Sleiman told Sam D that his friend had passed - he was not breathing and Mr Sleiman was unable to feel his pulse;
• Sam D told Mr Sleiman to call police and an ambulance "call the cops, cops and ambulance straight away:" and
• Mr Sleiman told Sam D that he was going to call police and an ambulance.

1. At 13:39:31 Mr Sleiman uses his phone to record civilian responders checking on Mr Nokic at the Nissan. At 13:39:59 a call is made to 000 by one of the civilian responders. The ambulance arrived 10 minutes later. Police arrive soon after. Witnesses recall Mr Sleiman saying he was travelling at 60-70 km/h or 70-80 km/h and that he said he "lost control:" Exhibit A tab29 Answers 57 & 58 & Exhibit B tab 6 pages 8 & 9.
2. Mr Sleiman did not contact emergency services.
3. One civilian responder who saw Mr Sleiman noted that his left hand was covered in blood. He said Mr Sleiman kept saying he 'didn't know what to do.' He later checked the deceased but could not find a pulse. When he told Mr Sleiman this he reacted with disbelief.
4. Another civilian responder also stopped his vehicle and assisted in checking whether Mr Nokic had a pulse. He found none. He said Mr Sleiman was covered in blood and appeared "really stunned." He took over the 000 call from another responder whose English was not good: Exhibit A tab 26. Mr Sleiman told him he was travelling at 70 - 80 km/h.
5. Another responder said Mr Sleiman appeared to be in quite a bit of shock but he was able to tell him he had lost control of the vehicle and was not speeding.
6. The civilian responders waited with Mr Sleiman until an ambulance arrived.
7. The ambulance was on scene within 10 minutes, arriving at 13:58. Mr Nokic was declared deceased at the scene.
8. At 14:25 Mr Sleiman was conveyed by ambulance from the scene to St George Hospital. He had a cut to his hand and hip pain.
9. Ambulance officers noted that Mr Sleiman was alert and oriented and conscious (GSG - Glasgow Coma Scale 15): Exhibit A tab 11. He was walking and "maybe didn't appear to be that total understanding of sort of what had, what had happened…": Exhibit A tab 28 answer 53. He told an officer he was "doing 60 or 70 kilometres per hour" and "he's lost it at, at the bend:" Exhibit A tab 28 answer 59 & 60.

Police investigation

1. The Nissan was examined and no mechanical defects or component failures were identified which may have contributed or caused the impact. The vehicle had performance modifications that meant that a person with a P1 licence could not drive it without an exemption: Exhibit A tab 4 at [14] & Tab 1 at [9.2]-[9.5]. Mr Sleiman did not have an exemption.
2. Police conducted a walkthrough of the scene. Tyre friction marks were located and marked on the roadway. Photographs were taken. A drone was used to take a video: Exhibit A tab 8. Measurements were taken. The police forensic imaging unit surveyed the site using a 3D laser scanner: Exhibit A tab1. A survey plan was prepared from that scan: Exhibit A tab 9.
3. On 29 April Mr Sleiman attended Liverpool police station. He was not under arrest and voluntarily participated in an electronically recorded interview where he said:

• At the time of the collision he was going 60-70 km/h and coming into a turn but didn't 'hold the brakes' and his vehicle lost control "it just hooked sideways into, straight into the tree, hit the passenger side. That's all I can remember" (A53);
• This was the first time he had driven that stretch of road (A57);
• When asked what he meant by 'lost control' he said "the car just went sliding" (A97);
• He admitted he knew about the modifications which had been made to the vehicle before he purchased it (A153-165);
• He had "no clue" whether, with the modifications, his vehicle was "P Plate legal" (A176) although he had been pulled over by Highway Patrol and advised he could be fined for the different modifications on the vehicle (A181);
• He then admitted the exhaust system was illegal for a P-plater (A208) and that there shouldn't be any modifications on a P-plater's vehicle (A210);
• He claimed the deceased was his "best friend" (A211) and they had been friends for a year and had met through Instagram;
• He and the deceased were both wearing seat belts (A216);
• When asked why he was in the Illawarra area he said he couldn't remember where they were travelling to but "he (deceased) told me he wanted to show me this area" (A220). He said the deceased was "guiding" him because he was new to the area (A221);
• When asked what they were doing in the national park given there were COVID restrictions he said "he just told me to grab some food" (A226);
• He said he knew the speed limit was 60km/h where the accident occurred (A249);
• He admitted the road had "lots of turns" (A250);
• When asked if he had seen any speed advisory signs (which appear just before a corner) he said "No. There was none" (A269);
• When asked if he had applied the brakes before hitting the tree he said "yes" (A283);
• When asked what the deceased was doing right before the crash he said "I think he was just on his phone … and I was just driving I wasn't looking at all" (A343, 345). When asked if the deceased was on a phone call Mr Sleiman said "I think on his social media. I don't know. I can't remember." (A348);
• When asked how he knew the deceased was on the phone he said he could hear him playing videos (A351);
• He claimed he was paying attention just prior to the collision (A356);
• He claimed he was travelling "60, 70" just prior to the crash (A358) and he knew he was travelling at the speed because "I was doing it the whole time and I was watching my speed limit" (A360);
• When asked whether he crossed the dual unbroken lines at any stage, he said "through the turn, I can't remember" (A378);
• He says that the roads in the national park were "narrow … small, tight" (A384, 385);
• When asked what happened after the car went off the road, he said he didn't want to talk about it (A395). He said he checked Mr Nokic's pulse. He said he "knew he was gone." He walked up and "just stood there" (A442);
• After the crash he called his closest family friend Sam (A505) and he used a witness's phone to call his sister (A506);
• He denied that he had been tired at the time he was driving (A632);
• When asked how he thought the collision happened he said, "just not slowing down I guess" (A730);
• When asked if he thought he was driving too fast he said "into the turn yeah. I should have slowed down. Even though I was doing the current speed limit" (A731);
• Police showed Mr Sleiman two videos that the deceased had uploaded to Instagram prior to the crash. After he had watched them he said "I was speeding" (A746) but claims they were taken 10 minutes prior to the crash (A747). He continued to deny that the second video was taken in the final moments before the crash (A772);
• He said the driving in the video was reckless and stupid (A818-813).
• He says that in the video he was doing "90,100" (A792) "but at the time I was coming into the turn I wasn't doing that speed limit, I wasn't reckless driving" (A795).
• Later he said "I was reckless driving before but when I took the turn I wasn't doing 90, I was doing 60-70. But after that Nuh. No excuses" (A815).

1. After the interview he told police he had taken photos of his car after the crash. The phone was examined and the photographs and other data were obtained from it.
2. On 29 April 2020 police went back to the crash scene and located the deceased's mobile phone in amongst the leaf litter. The two videos made by the deceased were recovered. They had been automatically uploaded to his Instagram account and police had earlier taken a recording of them from the phone of a friend of the deceased. It was that copy that was shown to Mr Sleiman during his interview.
3. The first video, time stamped 13:29:07 shows Mr Sleiman's Nissan travelling on Lady Wakehurst Drive at speed and veering across the double dividing lines onto the opposite side of the road. The second video was filmed as the vehicle approached the impact site and concluded immediately prior to the Nissan leaving its lane. It shows the vehicle travelling at speed and veering across the dual dividing lines partly onto the opposite side of the road before returning to the correct lane: Exhibit A disc tab 23. Video 2 stops at the point the Nissan appears to lose traction.
4. Police drove the Lady Wakehurst Drive in order to ascertain the locations where the deceased filmed Video 1 and Video 2. At 60 km/hr to drive from the approximate location of Video 1 to the approximate location of Video 2 took police 5 minutes and 49 seconds.
5. Utilising the time Video 1 was recorded (13:29:07) and the time Mr Sleiman was logged by his mobile phone taking steps (13:31:36), police ascertained that driving from the approximate location of Video 1 to the approximate location of impact site took Mr Sleiman 2 minutes and 29 seconds. Police calculated the Nissan's average speed between these two locations as being not less than 142 km/hr (in a posted 60 km/h speed zone). The officer in charge checked that the times indicated on both the mobile phones of the deceased and the accused matched: Evidence 23/2/2022.
6. On 4 June 2020 Mr Sleiman was charged in relation to this matter by way of future court attendance notice.

Evidence

1. I received two bundles of documents. During the course of the hearing Mr Bonnici, for Mr Sleiman, identified those portions of the prosecution material that was either objected to or subject to contest.
2. Exhibit A contained statements relating to the police investigation, including; the accused's police interview, expert reports, tables, time lines and CD's containing videos. A report from Mr George, a defence expert, was also included.
3. Exhibit B contained statements from civilian witnesses. None were required for cross-examination. Objection was taken to the entirety of the evidence of Mr B, who claimed to have seen the Nissan shortly before the impact and expressed an opinion about the speed it was travelling: ss 55, 56(2) 78 and 79 Evidence Act.
4. A voir dire was heard in relation to Mr B's evidence: Voir Dire Exhibit A edited versions Exhibit H. I excluded a portion of it where the witness purported to give an opinion about the actual speed of the oncoming Nissan: see separate judgement.

Expert evidence

1. I received reports and heard oral evidence from the officer in charge Senior Constable Cordina, a crash investigation specialist, and Mr Lennon, a crime scene officer employed by NSW Police whose expertise was traffic accident reconstruction. I received a report from Mr George, a civilian forensic accident investigator, but although relied upon he was not called as a witness by the defence. Each was accepted as experts with sufficient specialised knowledge to enable them to give expert opinions on matters with their fields of expertise: s79 Evidence Act.
2. I also have the assistance of reports from a number of other experts whose reports and expertise was not put in contention.
3. Unlike other witnesses experts may express an opinion on relevant matters within their particular area of expertise. Expert evidence is admitted to provide me with information and opinion which is within the witness's expertise, but which is likely to be outside the experience and knowledge of most Australians, myself included. The expert evidence is before me as part of all the evidence to assist me in interpreting the evidence especially as to the speed of the Nissan. It must however be assessed in the light of all proved facts: See [75] to [83] below.

The police interview and lies

1. The police interview must be considered along with all the other evidence but this version was not made on oath and while Mr Sleiman was questioned by experienced police his statements were not tested by cross-examination in court. He was not asked any questions that relate to Count 2, so it is not suggested that any answer could form a basis for an acquittal. But if what he says is believable or raises a doubt about aspects of the prosecution case for Count 1 it could provide a basis for finding the prosecution have not met their onus or raise on balance; a matter in mitigation of sentence.
2. If, on balance, I do not believe his account I put that account to one side; with one exception. The prosecution here submit that what he told police about the circumstances leading up to the impact were lies. There may be reasons, other than providing a false account to minimise his liability or culpability, why a person might tell what appears to be a lie. He may, for example have been genuinely confused, given the force of the impact and the traumas he suffered. Mr Sleiman may now genuinely believe what he said at the time and in his interview about the speed he was travelling and his manner of driving.
3. While by his guilty plea he accepts his liability and while in his interview he accepts that his driving before the final corner was stupid, dangerous and reckless, he was still, as he was at the scene on 25 April, minimising his culpability for the driving immediately before impact. And in doing so in the face of evidence to the contrary. This is particularly, evident from his responses when, at about Q 746, in his police interview, he is shown the two videos taken by Mr Nokic.

Issues to be determined - Sentence

1. The only issue in dispute was the manner of Mr Sleiman's driving and the extent to which it was dangerous to others at the time of the impact. Ms Keay, Deputy Senior Crown Prosecutor, particularised that dangerous driving as: 1. Excessive speed. 2. Driving on the incorrect side of the road. 3. Competitive driving. 4. Driving a vehicle Mr Sleiman was not licenced to drive. 5. Driving beyond his capacity and experience as a driver.
2. Mr Sleiman's case as put by Mr Bonnici is that the prosecution cannot establish a number of aggravating circumstances relied on to the high standard necessary. His focus was on what could be proved about the manner of driving at the time of the impact; accepting that that time could include the driving immediately before the impact when the Nissan left its lane and then the roadway.
3. The defence submit that as a matter of practical reality this is a case of excessive speed and that given the road conditions and other evidence that speed could be within or close to the range estimated by Mr Sleiman when he spoke to witnesses soon after the impact. Mr Bonnici notes in particular: 1. The speed of the Nissan could have been as low as 85 Km/h. 2. The Nissan was within its lane when it commenced to slide. 3. The prosecution cannot exclude Mr George's expert opinion that the only plausible explanation for the Nissan leaving the roadway was a combination of it: 1. Negotiating a crest curve (which momentarily reduced the weight of the vehicle). 2. Excessive acceleration (which produced high friction demand on the drive wheels). 3. The Nissan entering a significant area of pavement flushing (which reduced tyre friction). 1. Neither Mr Sleiman's driving qualifications and experience, or lack of then, nor the Nissan, itself played any role in this incident. 2. The manner of driving before the incident was of limited or no relevance when that type of driving could not be proved to be occurring at the time the Nissan left its lane immediately before the collision.

Issues to be determined - Trial

1. The only issue and element in dispute was whether Mr Sleiman failed to give any assistance that may have been necessary and within his power to give. Ms Keay particularised that as: a failure to call 000 emergency services. It is not suggested that Mr Sleiman sought to leave the scene or in any other way impeded the police investigation (other than occasioning a 10 minute delay) or contributed to the injury or suffering of the deceased.
2. It is the prosecution case that despite any consequences to himself he was capable and able to operate a phone and failed to call 000 at all resulting in a 10 minute delay before an emergency call was made by a civilian responder.
3. The defence case is twofold. The first is that as a matter of statutory construction an element critical to proof of s 52AB Crimes Act cannot be established. And secondly; that a proper understanding of the facts and the position of the accused meant that in the circumstances, as he perceived them to be, it could not be shown his response was unreasonable.

Ms Keay Deputy Senior Crown Prosecutor

1. Ms Keay submits I would find that immediately prior to the Nissan leaving its lane the accused was travelling at well above the signposted speed of 60 km/h at a minimum of 96 km/h. That Mr Sleiman then lost control of the vehicle and that when he did so he was not driving the vehicle in a safe and responsible manner. He was in fact driving in a manner dangerous to the public because: 1. Of the speed the Nissan was travelling. 2. That speed was well in excess of what the road conditions demanded. 3. He was moving back and forth outside his lane and over dual double lines. 4. He was driving in a manner he knew exceeded his own ability and capacity as a driver. 5. Very shortly before the impact he was driving with complete disregard for the road rules and other road users

Mr Bonnici

1. Mr Bonnici, in response, says while the s 52A(c) Crime Act offence of drive in manner dangerous is admitted, this is really a speed dangerous s52A(b) case as the primary causes of the loss of control of the Nissan were the road surface and its speed; over 60 km/h but not as high as that asserted by the prosecution.
2. The defence case is that the evidence establishes that when the Nissan lost traction it was wholly within its lane at a point where the road surface and a small crest played a contributory role. And, as Mr Sleiman says in his police interview, he was no longer driving is a similar manner to that noted by witness Mr B or shown in Video 1.

Ms Keay

1. The prosecution case is that each element of s 52AB was proved beyond reasonable doubt. Section 52AB she submitted creates a dual obligation to "stop and render assistance." This is what was intended when the Crimes Amendment (Road Accident) Act 2005 was passed. To find otherwise, she submits, would create an absurd situation whereby someone who stopped but did not assist could escape liability.
2. She submits that even where it may seem obvious a person is dead, it is not for a layperson to determine whether or not ambulance emergency help is required or not. In any event emergency services were required to deal with the effects of the impact, including preserving the dignity of the deceased, whose body until then was trapped in the wreckage of the Nissan.
3. Mr Sleiman, she said, was clearly capable of using his phone. He used it to take videos of the crashed car and speak to his friend Sam D; who told him to call emergency services. His failure to call emergency services at all meant he failed to give assistance he was reasonably capable of giving. He acted wilfully. He was capable of giving others a version of events; a false version on the prosecution case. He was able to look up things on his phone and operate its camera. Any state of shock he was in did not give rise to a dissociative state requiring rebuttal by the prosecution of a possible defence. He was alert and oriented when examined by ambulance officers, who came in response to the 000 call from a civilian responder about 10 minutes after the impact.

Mr Bonnici

1. Mr Bonnici focussed his submissions on the last and here critical element of a s52AB offence: "Mr Sleiman failed to stop and give any assistance that may have been necessary and was in Mr Sleiman's power to give."
2. He submitted that as a matter of law the prosecution must prove beyond reasonable doubt both a failure to stop and a failure to give any assistance. Here it is not in dispute that the accused did stop; as he did not attempt to flee but remained in the vicinity of the impact site. As a failure to stop is an essential element of the offence the prosecution must inevitably fail and, Mr Bonnici submitted with some vehemence, should never have been brought.
3. Further, he said, were I to take a different view I must assess "give any assistance that may have been necessary and was in Mr Sleiman's "power to give" in context. There was, he submitted, more than ample evidence for me to conclude that Mr Sleiman was in shock from both the effect of the impact and the knowledge his friend had died. This meant that in the circumstances as Mr Sleiman perceived them to be, it could not be shown his response was unreasonable.
4. Further, he submitted that in any event as Mr Nokic had tragically but obviously died on impact, no assistance, as contemplated by s 52AB, was necessary.

Determination Facts for Sentence - Count 1

1. The manner of driving will be dangerous if the prosecution has established that there has been some serious breach of the proper conduct of a vehicle - so serious as to be in reality, and not merely as a matter of speculation, potentially dangerous to another person or to other persons.
2. The test about whether that conduct was dangerous is an objective one. The prosecution does not have to establish that the accused knew or realised that he was driving the Nissan in a manner dangerous to another person or persons. His conduct must be judged according to an objective standard which applies to all drivers of vehicles. What must nevertheless be shown in relation to such conduct is that it amounts to a serious breach of the proper management and control by the accused of their vehicle at the time of the impact.
3. Driving at some point in time prior to the point of impact may be relevant to a finding as to the manner of driving (or some other element of the offence) at the time of the fatal impact: R v Shashati [2018] NSWCCA 167 at [23] per Basten JA. "Whether the lack of care and attention in driving at one point can be logically probative of lack of care and attention at another point must ultimately depend upon whether the two points are so closely related in time, distance and circumstance [as] to allow the tribunal of fact to draw an inference that the manner of driving at the second point was of the same character as the manner of driving at the first point." R v Scott:[ 2003] VSCA 55; 141 A Crim R 323 at [11]; Shashati.
4. The Prosecution rely on reconstructions of the accident carried out by Senior Constable Cordina, supplemented by advice from Mr Lennon. The defence say questions raised by Mr George, a civilian forensic accident investigator, in his report, create sufficient doubt about these opinions.
5. While it was challenged, Senior Constable Cordina's methodology for calculating the average speed of the Nissan from the time Video 1 commenced until the accused phone's step detector was activated after the impact was sound, transparent and reproducible and gave a conservative estimate. The prosecution and Senior Constable Cordina acknowledged in advance of hearing that there was defect in her critical speed yaw calculations. Mr Lennon accepted Mr George's criticisms in this respect were valid. It was one reason why he was called in to prepare a report.
6. The critical point of difference between Mr Lennon and Mr George is whether the tyre marks on the road way can be used to estimate the speed of the Nissan as its rear wheel lost traction, using critical speed yaw calculations. In Mr Lennon's expert opinion - where the tyre marks travelled over the dual unbroken centre lines, there were striations visible within the tyre mark angled in a forward direction, indicative of a tyre that is both rotating and side slipping. In the northbound lane police identified a cross over point within the tyre marks which demonstrated the vehicles rear wheels had commenced tracking outside the front wheels. The evidence of cross over and striations in the tyre marks indicated the vehicle was in yaw. Calculations were then done to show that at a point soon after loss of traction the Nissan was travelling at least 96 km/h.
7. While Mr George agreed with those calculations in his expert opinion the tyre marks cannot, given the techniques used to record and measure them, be used to establish either that the vehicle was in yaw or the speed it was travelling. He did not believe the loss of control was precipitated by any steering manoeuvre: Exhibit A tab 30. In his opinion the only plausible explanation for the loss of rear traction was a combination of: 1. The Nissan negotiating a crest curve, which momentarily reduced the weight on the vehicle; 2. Excessive acceleration, which produced high friction demand on the drive wheels; and 3. The vehicle entering an area of significant pavement flushing, which reduces tyre pavement friction. Flushing occurs where the aggregate in road surface is worn away or pushed down and smooth bitumen is exposed.
8. In Mr George's expert opinion this is not a valid critical speed yaw case but a case of "vehicle spin out," which precludes the use of critical speed yaw calculations.
9. Mr Lennon did not accept that the evidence precludes the use of critical speed yaw calculations. He did accept that Mr George's conclusion was a plausible explanation for the loss of rear traction but he said it was not supported by the evidence from the scene and the deceased's Video 2. In his opinion: 1. the 'crest' was a very minor rise and fall in gradient and could only be a factor at very high speed: See gradient on Plan Exhibit A tab 9. 2. There was acceleration but this was indicative of the manner and speed at which Mr Sleiman was driving 3. While there was some wear on the road where most tyres tracked and while it could be described as "flushing" it was not "significant."
10. In Mr Lennon's opinion the loss of traction was not a result of road conditions or acceleration at one particular point on the road way. In his opinion the evidence did not support Mr George's conclusion that the accident occurred without driver steering input while the Nissan was travelling straight and within its lane at a speed above 60 km/h. In Mr Lennon's opinion all the evidence, including Video 2 (which it appears Mr George had not seen), established Mr Sleiman was steering from one side of the road to the other at high speed. He had just steered back into his lane and that this loss of traction occurred and that the loss of traction occurred as a result of his speed and his steering of the Nissan.
11. He said Mr George's challenges to the techniques used to measure the tyre marks and based on criticisms from old texts were outdated, the current use of modern 3D laser technology gave better and much more precise results than those Mr George suggested.
12. In my view, having reviewed all the evidence while it is clear that Mr George's expert opinion must be respected it does not accord with all the evidence before me. He was not a called and while the defence have no onus I have nothing from him about what impact Video 2 may have had on his conclusions. Nor do I have his opinion on whether or not 3D laser techniques provide more precise measures.
13. In all the circumstances I can accept beyond reasonable doubt Mr Lennon's opinion that the loss of traction occurred as a result of Mr Sleiman's steering of the Nissan as it rounded a corner and then moved from the incorrect to the correct lane at a speed in a range of 96 to 98 km/h. The driving at the corner was indicative of, and consistent with, the manner of driving described by Mr B and shown in Video 1.
14. I prefer not to use labels such as "competitive driving". It is often much better to describe what occurred than try to fit behaviour into a definition. Suffice to say what was described and shown involved high speed manoeuvres on both sides of a narrow tree lined road where moving out of your lane was completely prohibited. That driving was for the purpose of gaining a thrill and showing off.
15. The average speed calculated by Senior Constable Cordina is one indication of how dangerous the driving was as at such high speeds it would have been impossible to keep the Nissan in its lane. The high average is indicative of the speeds reached during straight travel and the need to slow and use the whole road to manoeuvre at other times. All these indicators can be seen in Video 2 including the high revolutions displayed on the tachometer and the side to side and rapid movement of the air freshener hanging from the rear vison mirror.
16. The prosecution also rely on the modifications to the Nissan and the fact Mr Sleiman was a P1 licenced driver. Neither of these points go directly to his manner of driving. But they do go to his culpability. He should not have been driving that vehicle. He should not have been driving that vehicle at that speed. He did not have the experience to carry out the manoeuvres necessary to drive that vehicle at that speed. But no one should have driven that road in that manner and at that speed.

Determination Trial - Count 2

1. After an impact causing death or serious injury a driver is obliged to give any assistance that may have been necessary and was in their power to give.
2. It is not in dispute that Mr Sleiman knew the vehicle he was driving had been involved in an impact. It is not in dispute that that impact caused the death of Mr Nokic. There is no reason to doubt that as he told Sam D, and later the police, that he checked Mr Nokic immediately after the collision and believed he was dead. And, that Mr Nokic was not in need of medical care or other succour. What is in dispute is whether it can be proved beyond reasonable doubt that Mr Sleiman failed to give any assistance that may have been necessary and was in his power to give.
3. That necessary assistance the prosecution submit was to call 000. His failure to call 000 is not in dispute. The accident occurred at approximately 13:31. Mr Sleiman had his mobile phone with him when he extricated himself from the Nissan. He used it a number of times shortly afterward. He did not call 000. Emergency services were called at 13:39:59 by another. It took just under 10 minutes for them to get to the scene. It was in his power to call 000
4. Although he took me to no authority Mr Bonnici's point is that as s 52AB is a criminal provision both aspects of the critical element "stop" and "render assistance" must be proved beyond reasonable doubt. This means I must determine the meaning of the relevant words used.
5. The ordinary meaning of "and" is conjunctive. In some instances it can mean "or" but given the way both "and" and "or" are used in s 52AB there is no convincing textual reason for departing from the ordinary meaning of the word "and."
6. For example in Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797, the term "compensation is payable only if the symptoms and disability persist for more than 6 weeks" required proof that both the symptoms and the disability persist for the required period before payment could be made. There the High Court rejected the decision of the Court of Appeal that "and" meant "or" and thus proof of either alternative would suffice for a compensation payment to be made.
7. The second reading speech for Crimes Amendment (Road Accident) Bill 2005 sheds some light on what Parliament intended. It speaks of a single requirement not two. "The requirement is to stop and give any assistance that it is in the driver's power to give…What is required is for the person to stop and take steps to assist directly or obtain expert help by contacting police or emergency services to ensure that professional expert assistance is obtained at the earliest opportunity. The action of drivers fleeing may thwart police in their ability to identify the drivers and collect necessary evidence. The presence of drivers at the scene ensures that the investigation is at no disadvantage": NSW Legislative Assembly, Parliamentary Debates (Hansard), 21 September 2005 at 18124.
8. The section does not unambiguously create two offences. If this was intended it would have made reference to both a "failure to stop" and "a failure to render assistance." If Mr Bonnici is correct his construction limits the effect of the section and would mean once a driver responsible for an impact stopped it excluded from prosecution examples of failure to offer assistance more serious than those that actually arose in this case. The most obvious example could have occurred here if (as remains possible) the deceased was still alive but trapped in the vehicle and no assistance was given to him. While not decisive this anomalous result was clearly no envisaged by Parliament.
9. A mandatory cumulative requirement would not promote the broad and beneficial legislative purpose of the section. Here what was clearly intended, as its legislative context makes clear is that "stop and give assistance" is a composite or portmanteau phrase - sometimes called by the grammatical term "Hendiadys." A Hendiadys is a method of avoiding collisions between conjunctive constructions and disjunctive constructions with "a composite or portmanteau phrase" used to create a single obligation. A composite expression is created out of at least two elements or integers which is different from each of them. A portmanteau expression combines the meanings of two distinct words to create a new expression: Victims Compensation Fund Corporation v Brown at [34]: D C Pearce Statutory Interpretation in Australia 9th ed. at [4.35].
10. Accordingly, the interpretation of the critical element of s52AB put forward by the prosecution must be accepted. Mr Sleiman did stop but his obligation was twofold he was obliged to both stop and render assistance. He failed in the second part of that obligation. Despite any shock or trauma and his belief Mr Nokic was dead, he had the power or capacity to give necessary assistance - at a minimum this meant he use his phone to call emergency services. With respect the matters raised by Mr Bonnici on this second issue go to Mr Sleiman's level of culpability not his liability: WW v R [2012] NSWCCA 165; R v Pullen [2018] NSWCCA 264 at [45] - [52].

Trial

1. Each element of Count 2 has been proved beyond reasonable doubt. I find Mr Sleiman guilty of Count 2.

Sentence

1. The impact occurred when the Nissan Mr Sleiman was driving left the roadway. The Nissan left the roadway when its rear wheels lost traction. Thereafter Mr Sleiman was unable to control the vehicle as it moved from his lane across the opposing lane and left the roadway hitting a tree. The driving immediately prior to the collision at the point traction was lost was dangerous. It was dangerous because: 1. Of the excessive speed of the Nissan - in the rage of 96kp/h to 98 km/h. 2. The Nissan was travelling too fast for the road conditions - a 60 Km/h limit, on a narrow scenic road, with dual centre lines with many turns and tree lined with limited forward visibility. 3. The Nissan entered the corner before the impact site at excessive speed and on the wrong side of the road. 4. Mr Sleiman's steering as he moved toward the correct side of the road as it approached a 45 km/h speed limited corner. 5. He changed gears and accelerated as he did so. 6. He was not able to manage and control the Nissan in those conditions; conditions his manner of driving brought about.
2. In addition his culpability is increased because: 1. He was driving a vehicle that he was, as a P 1 licenced driver, not supposed to drive. 2. He did not have sufficient experience as a driver to be driving that vehicle in that manner or at that speed. 3. He was driving in that manner and for the purpose of gaining a thrill and showing off.

Orders

1. Adjourned for sentence on 29/04/2022 at 2pm. Parties are to file documents in compliance with District Court Practice Note 20.

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