Wong v R

Judgment 1MACFARLAN JA : At about 3.15 pm on Tuesday 29 August 2006 a tragic accident occurred in Pennant Hills at the intersection of Pennant Hills Road with Copeland and Eaton Roads. A red Mazda car driven by Ms Kate Dodd and a black BMW sports car driven by the applicant collided. Ms Dodd died, apparently instantaneously, as a result of the injuries she sustained in the collision. 2At the time of the collision Ms Dodd was turning right from a dedicated right hand turn lane on the northbound side of Pennant Hills Road into Copeland Road. The applicant was driving south on Pennant Hills Road. The cars collided on the southbound side of the intersection. 3The applicant was charged with driving in a manner dangerous to another person or persons that occasioned the death of Ms Dodd ( Crimes Act 1900, s 52(A)(1)(c)). A jury found him guilty of this offence at a trial that took place in January 2008, but on 15 April 2009 this Court quashed his conviction and ordered a new trial ([2009] NSWCCA 101). The present application is one by the applicant for leave to appeal against his conviction at a further trial that occurred in February and March 2010. The sole ground of appeal is that the jury verdict of guilty of the offence charged was unreasonable ( Criminal Appeal Act 1912, s 6). Because an appeal on that ground is not one on "a question of law alone" leave to appeal is required ( Criminal Appeal Act 1912, s 5(1); Rasic v R [2009] NSWCCA 202 at [12]). For reasons that appear below it is plainly appropriate that leave to appeal be granted, accordingly I shall hereafter refer to the applicant as the appellant. 4There was evidence at the trial that suggested that immediately prior to the collision the appellant may have been driving at a speed in excess of the speed limit of 70 kilometres per hour but the evidence did not clearly demonstrate how far in excess of that limit he may have been driving. In these circumstances the Crown accepted at the trial that the appellant could only be convicted if the jury found that the Crown had established beyond reasonable doubt that the collision was caused by the appellant driving through a red traffic light facing him. The issue on the appeal is whether the conclusion implicit in the jury's verdict that the Crown had done that was reasonably open to the jury. 5There were only two alternative views of how the collision came about that were conceivably open on the evidence. The first alternative was that Ms Dodd turned right from the dedicated right hand turn lane at a time when she had a green arrow authorising her to do that. If she had a green arrow the technical evidence indicates that the appellant must have had a red light facing him. The second alternative was that at the relevant time there was a round green light permitting northbound traffic to proceed but there was no arrow displayed to govern the right turn by Ms Dodd into Copeland Road. If that was the position Ms Dodd was entitled to turn when it was safe to do so but any southbound vehicles, in particular that of the appellant, would have had the benefit of a green light entitling them to enter the intersection. Unless the Crown established beyond reasonable doubt that the first alternative represented what occurred, the appellant was entitled to be acquitted.