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[2026] NSWCA 48
respondent. Appeal dismissed. The appellant was ordered to pay the respondent’s costs ([84]–[85]).
The Court of Appeal did not decide which traffic-light sequence actually occurred. It decided that the trial judge was entitled to find that the appellant had not proved his account. His first recorded statement came six months after the crash, while the respondent and her brother gave statements five days afterwards. The trial judge could weigh that timing, assess the witnesses, and accept the respondent’s central account despite inconsistencies about other details. The appellant’s argument that his version was more probable did not establish an error in the trial judge’s reasoning. The appeal was dismissed, with costs payable by the appellant.
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2,342 words · generated 08/10/2026
The appeal arose from a collision on 22 May 2018 at the intersection of Hoxton Park Road and Access Road. The appellant, Billy Zamagias, was driving an authorised service vehicle in the T-way running through the middle of Hoxton Park Road. The respondent, Antoinette Saltalamacchia, was driving east in the lane next to the T-way and intended to turn right into Access Road ([2]–[5]).
4 cited instruments linked from this judgment.
The two drivers gave conflicting accounts of the signals. The appellant’s case was that the T-way signal showed a white “B”, permitting him to proceed, and that the respondent turned across his path against a red right-turn arrow ([6]). The respondent’s case was that she waited at a red arrow, turned only after it became green, and that the appellant entered the intersection against a red “B” ([7]). The judgment records that these two signal sequences were possible but mutually exclusive, and that there was no objective evidence, such as skid marks, to determine which sequence occurred ([8]).
There had already been an earlier trial. The appellant initially succeeded, but that judgment was set aside on the respondent’s appeal, and a retrial was ordered in Saltalamacchia v Zamagias [2024] NSWCA 184 ([3]). At the retrial, the primary judge was not satisfied that the appellant had proved his account on the balance of probabilities and entered judgment for the respondent ([9], [34]).
The appellant’s appeal challenged the primary judge’s evaluation of the evidence. The grounds included the weight given to the fact that the appellant’s first recorded police account came about six months after the collision; the primary judge’s acceptance of the respondent’s account; the inference to be drawn from the traffic-light timings; and the treatment of inconsistencies in the respondent’s and her brother’s evidence ([10]). The Court of Appeal dismissed the appeal and ordered the appellant to pay the respondent’s costs ([84]–[85]).
The Court’s central concern was whether the appellant had demonstrated an error in the primary judge’s fact-finding, not whether the Court of Appeal could itself choose a different account of the collision. Adamson JA set out principles recognising the trial judge’s advantage in hearing the evidence as a whole and assessing witnesses in context ([35]–[38]). The Court also noted that a fact-finder may accept some parts of a witness’s evidence and reject others ([38]).
The delay before the appellant’s first recorded account. The appellant argued that a six-month interval should not affect the reliability of his account, given the dramatic nature of the collision ([39]). The Court rejected that contention. It referred to ordinary human experience that memory is fallible and that its fallibility ordinarily increases with time ([40]). It considered that details relevant to this collision, including speed, direction, signals and what was seen immediately before impact, could fade ([44]). The Court also contrasted the appellant’s relatively sparse police account with the greater detail in the respondent’s account, recorded five days after the collision ([45]–[51]). Its conclusion was specific: the timing of the appellant’s first recorded statement was relevant, and the weight to give it was for the primary judge ([52]).
The Court rejected the proposed analogy with delayed reporting in child sexual assault cases. It explained that the cited discussion in those cases concerned features such as the retention of central details of a traumatic event, threats, shame, and circumstances that may explain delay. The Court considered those features not relevant to the circumstances of this motor vehicle collision ([42]–[44]). This was not a general ruling about all delayed accounts; it addressed the analogy advanced in this appeal.
The respondent’s account. The appellant argued that the primary judge should not have accepted the respondent’s evidence that she turned on a green arrow. The Court held that the account was not “glaringly improbable” or “contrary to compelling inferences”, the terms it drew from Fox v Percy and Lee v Lee ([53]). It was given relatively close to the accident and was supported in material respects by the brother’s evidence ([53]). Although later versions differed in some respects, the respondent did not depart from the central proposition that she had stopped and waited for the signal to change before turning ([54]).
Signal timing and competing possibilities. The appellant submitted that, on the respondent’s account of the signals, he would have travelled a substantial distance while failing to notice an amber and then red “B” ([58]). The Court rejected the argument as insufficient to demonstrate error. It reasoned that choosing between competing possibilities merely because one seemed more probable was not enough: the evidence had to support an affirmative inference to the required standard ([59]–[61]). It also observed that the competing hypothesis, that the respondent turned while the arrow remained red, involved at least a comparable level of possible inattention by her and her brother ([62]). The Court therefore concluded that this argument did not establish the relevant ground of appeal ([63]).
Inconsistencies and attention. The Court examined alleged differences between the respondent’s police statement, her statement to an investigator and her evidence at two trials. It considered that differences about peripheral details, arising over accounts given on several occasions over years, did not require the primary judge to reject her evidence on the central issue ([64]–[68]). It also rejected the contention that the respondent’s brother had attended the police station to help her avoid a charge, noting that the evidence showed the possibility of a charge arose later ([70]–[71], [80]–[81]).
Finally, the Court distinguished the respondent’s admitted failure to notice the signal change immediately from any claim that she remained inattentive after her brother alerted her. Her evidence was that she looked at the arrow, saw green and then proceeded ([76], [82]–[83]). The Court held that the first circumstance did not necessarily establish the second.
The judgment presents the result as an application of existing principles, not as a change to the law. Adamson JA stated that there was no challenge to the primary judge’s identification of the relevant principles ([11], [32]). The Court referred to authorities about the advantages of trial judges in fact-finding, including State Rail Authority of New South Wales v Earthline Constructions Pty Ltd and Fox v Percy ([36]–[37]). It also cited CCL Secure Pty Ltd v Berry for the proposition that a fact-finder may accept some parts of a witness’s evidence and reject others ([38]).
On delayed accounts, the Court relied on Willmot v The State of Queensland and Onassis v Vergottis when explaining that memory may fade over time and that the timing of a first recorded account can matter ([40]–[41]). It distinguished the context of delayed complaints in sexual assault cases by reference to Reed v R and Jarrett v R ([42]–[44]). Its application here was that the appellant’s delay was relevant in the circumstances of this accident, not that delay automatically defeats or discredits a witness’s account ([52]).
On proof by inference, the Court considered Jones v Dunkel and cited West v Government Insurance Office of New South Wales and GLJ v The Trustees of the Roman Catholic Church for the proposition that a court cannot choose between conjectures simply because one appears more likely ([59]–[61]). It used that reasoning to reject the appellant’s argument about the time and distance involved in travelling through a red signal ([62]–[63]).
Accordingly, the “after” position evidenced by this judgment is an application of the principles it cited to a particular factual appeal. The judgment does not purport to alter the standard of proof or establish a categorical rule about the effect of delayed statements or witness inconsistencies.
“Plainly, the timing of the plaintiff’s statement to police, which was his first recorded version of the accident, was relevant.” ([52])
In plain English: the primary judge was permitted to consider that the appellant’s first recorded account came six months after the collision. The Court did not say that the delay made the account unreliable by itself. It held that the timing was relevant and that the primary judge could decide how much weight it deserved.
“There was nothing either ‘glaringly improbable’ or ‘contrary to compelling inferences’ about the defendant’s version.” ([53])
In plain English: the Court did not find a basis to displace the primary judge’s acceptance of the respondent’s account. A competing account, or a disagreement about what is more likely, did not by itself establish appellate error.
“It was open to the primary judge to regard the minor inconsistencies about peripheral matters in the defendant’s various versions as not adversely affecting her credibility about the principal matters in her evidence.” ([68])
In plain English: discrepancies about secondary details did not necessarily undermine the respondent’s evidence about the central question, namely whether she waited for a green arrow before turning. The trial judge could assess the importance of the inconsistencies in context.
“It does not follow from the admitted circumstance that the defendant did not immediately notice the change of lights that she was not attentive thereafter.” ([83])
In plain English: missing the signal change at first did not, without more, prove that the respondent was still inattentive once her brother alerted her and she looked at the signal.
The Court’s concluding assessment was that the primary judge had considered the evidence and inconsistencies carefully, and that the conclusion that the appellant had not discharged his burden on liability was supported by the evidence ([84]).
The decision is relevant to appeals that challenge a trial judge’s findings about competing accounts of an accident, particularly where there is little or no objective evidence resolving the conflict. Here, the parties’ versions of the traffic signals were mutually exclusive, and the Court recorded that no objective evidence clearly favoured either one ([8]).
It is especially relevant where an appellant argues that the trial judge should have drawn a different inference from witness credibility, inconsistency, or timing. The judgment illustrates that an appellate court will examine whether there was a recognised basis for intervention, rather than simply reweighing the evidence. In this case, the respondent’s account had been made relatively soon after the event and had support on the central issue from her brother ([53]–[54]).
The decision also addresses cases where a party relies on a delayed first recorded statement. The interval may be relevant where the disputed details are the kind that can fade with time, such as speed, signal phase, direction of travel and what a driver observed before impact ([44]–[52]). The judgment does not establish a fixed period after which an account is unreliable.
A further relevant fact pattern is one where an argument asks a court to choose between competing possibilities based on a calculation or asserted probability, without evidence that affirmatively establishes the proposed conclusion. The Court treated the appellant’s calculation about distance travelled during a signal sequence as insufficient to establish the required inference ([58]–[63]).
Finally, the decision may be relevant where different versions of a witness’s account vary on secondary details over a period of years. The Court’s reasoning shows that the trial judge may distinguish between peripheral inconsistencies and the central proposition in the witness’s evidence ([64]–[68]).
The supplied judgment contains no decisions made after 2 April 2026, and therefore provides no basis to describe how later courts have treated Zamagias v Saltalamacchia [2026] NSWCA 48. Any account of later treatment would require sources beyond this judgment.
The decision itself refers to earlier authorities and indicates how the Court used them. It cites Earthline and Fox v Percy concerning the trial judge’s fact-finding advantages ([36]–[37]), and CCL Secure concerning acceptance or rejection of parts of a witness’s evidence ([38]). It cites Willmot and Onassis on the relevance of delay and memory ([40]–[41]). It considers Jones v Dunkel and refers to West and GLJ on the limits of choosing between conjectures ([59]–[61]). It also invokes Fox v Percy and Lee v Lee when describing the threshold considerations relevant to a challenge to factual findings ([53]). Those references describe the legal sources used by this Court; they do not establish how subsequent courts have treated the 2026 decision.
The earlier appeal in the same litigation, Saltalamacchia v Zamagias [2024] NSWCA 184, is mentioned as procedural history: that appeal resulted in an order for a retrial ([3]). The present judgment does not describe it as deciding the factual issues determined at the retrial.
The judgment resolves the appeal on the grounds presented, but it does not determine which signal sequence actually occurred. The Court held that the primary judge was entitled to find that the appellant had not proved his version; it did not make a positive finding that every detail of the respondent’s account was correct ([34], [53]–[55]).
The reasons also do not set a general measure for how much delay is significant. The Court considered the particular six-month interval, the nature of the disputed details, the content of the appellant’s account and the earlier statements made by the respondent and her brother ([44]–[52]). The judgment does not say that every delayed account should receive less weight, or identify a fixed timeframe for assessing reliability.
The Court did not define a comprehensive test for when inconsistencies are “peripheral” rather than important. It assessed the differences raised in this case and concluded that the primary judge could regard them as not undermining the respondent’s evidence on the central issue ([64]–[68], [77]–[78]). The significance of discrepancies will therefore remain dependent on the evidence and the issues in each proceeding.
Nor does the judgment decide how a court should evaluate every argument based on signal phasing, reaction time or distance travelled. Its treatment of the appellant’s calculation turned on the evidence and on the Court’s conclusion that the argument did not establish a positive inference rather than a conjecture ([58]–[63]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Zamagias v Saltalamacchia [2026] NSWCA 48
Hearing dates: 25 March 2026
Decision date: 02 April 2026
Before: Ward P at [1]
Adamson JA at [2]
Free JA at [86]
Decision: (1) Dismiss the appeal.
(2) Order the appellant to pay the respondent’s costs.
Catchwords: NEGLIGENCE — motor vehicle accident — appeal — dispute as to factual matters relating to liability — alleged errors with respect to factual matters relating to the circumstances of the collision
APPEAL — from findings of fact — assessment of witnesses by primary judge
Cases Cited: CCL Secure Pty Ltd v Berry [2019] FCAFC 81
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32
Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Onassis v Vergottis [1968] 2 Lloyd’s Rep 403
Reed v R [2006] NSWCCA 314
Saltalamacchia v Zamagias [2024] NSWCA 184
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306
West v Government Insurance Office of New South Wales (1981) 148 CLR 62; [1981] HCA 38
Willmot v The State of Queensland [2024] HCA 42; (2024) 98 ALJR 1407
Category: Principal judgment
Parties: Billy Zamagias (Appellant)
Antoinette Saltalamacchia (Respondent)
Representation: Counsel:
B D Dooley SC (Appellant)
D J Hooke SC / D P O’Dowd (Respondent)
Solicitors:
AJB Stevens Lawyers (Appellant)
Hall & Wilcox (Respondent)
File Number(s): 2025/251408
[This headnote is not to be read as part of the judgment]
The appellant sued in the District Court for damages for injuries sustained in a motor vehicle accident in which his vehicle, which was travelling along a transit way in the middle of Hoxton Park Road, collided with the vehicle driven by the respondent as she made a right-hand turn into Access Road. As the primary judge found that the appellant had not discharged his onus of proving negligence, the appellant’s claim failed.
On appeal, the appellant alleged that the primary judge erred in fact-finding, including by taking into account that the first version given by the appellant of the circumstances of the accident was not given until six months later when he made a statement to police; accepting the respondent’s evidence notwithstanding inconsistencies between the various versions she had given, including to an investigator and in a previous trial; and failing to take into account that it was less probable that the appellant had gone through a red light, since this would have amounted to serious and prolonged, rather than merely momentary, inattention.
The Court (Adamson JA, Ward P and Free JA agreeing) held dismissing the appeal:
(1) The timing of the appellant’s statement to police was plainly relevant. The weight given to evidence is pre-eminently a matter for the primary judge: [52].
(2) The primary judge was entitled to prefer the evidence of the respondent where there was nothing either “glaringly improbable” or “contrary to compelling inferences” in her version: [53]-[55], [74]-[78].
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 cited.
(3) The primary judge was entitled not to regard the alleged improbability of the appellant failing to see the red light over a prolonged period as significant in circumstances where such reasoning would have amounted to no more than conjecture: [58]-[60].
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 considered.
(4) The primary judge’s treatment of the evidence in relation to factual findings of the circumstances of the collision and the weight to be given to inconsistencies in versions given over time did not give rise to any error: [57], [77]-[78], [81]-[83].
W****ARD P: I agree with Adamson JA.
A****DAMSON JA: Billy Zamagias, the plaintiff in the Court below and the appellant in this Court (the plaintiff), and Antoinette Saltalamacchia, the defendant in the Court below and the respondent in this Court (the defendant), were involved in a collision on 22 May 2018 between two vehicles of which they were the drivers.
The plaintiff brought proceedings in the District Court (the Court below), claiming damages for the alleged negligence of the defendant. The first trial, which was conducted on 23, 24 and 25 October 2023 resulted in a judgment in the plaintiff’s favour ordered on 13 December 2023. However, on 1 August 2024, the defendant’s appeal against the judgment in the first trial was upheld by this Court, which ordered a re-trial: Saltalamacchia v Zamagias [2024] NSWCA 184. The re-trial was conducted in the Court below by Dicker SC DCJ (the primary judge) on 29 and 30 April and 1 May 2025. His Honour entered judgment in favour of the defendant on 13 June 2025: Zamagias v Saltalamacchia [2025] NSWDC 230.
Immediately prior to the collision, the plaintiff was driving along the transit way (T-way) in the centre of Hoxton Park Road in an easterly direction towards the intersection with Access Road. Use of the T-way is confined to buses or other service vehicles, such as the vehicle which the plaintiff was driving. The defendant was also driving in an easterly direction along Hoxton Park Road. Her vehicle was in the lane immediately north of the T-way, which was reserved for vehicles turning right into Access Road. As the defendant entered the intersection to make a right-hand turn into Access Road, the two vehicles collided. The plaintiff did not dispute that the defendant was stopped at the intersection while the right-hand turn arrow was red, before the defendant entered the intersection immediately prior to the collision.
Conventional traffic lights at the intersection between Hoxton Park Road and Access Road applied to all traffic other than traffic in the T-way. The movement of vehicles using the T-way was controlled by the use of illuminated “B” signs, which were coloured either white (meaning that the vehicle could proceed through the intersection), amber (meaning that light was about to change to red) or red (meaning that the vehicle must stop and was prohibited from entering the intersection).
The plaintiff’s case was that:
the light signal facing him, which applied to traffic in the T-lane, was a white “B” indicating that he was permitted to drive straight ahead across the intersection with Access Road; and
the defendant went through a red right-hand turn arrow as her vehicle entered the intersection and collided with the left side of his vehicle.
1 The primary judge erred in taking into consideration, or gave undue weight to, the appellant’s [plaintiff’s] provision of a statement to the police six months following the subject accident.
2 The primary judge erred in finding that the respondent [defendant] commenced to turn with a green arrow, such finding was plainly unreasonable and unjust and contrary to compelling inferences.
3 The primary judge erred in failing to refer to or to give sufficient weight and consideration of all the evidence, including;
a) The respondent’s [defendant’s] evidence that she did not look towards the T-way.
b) That if the appellant [plaintiff] had entered the intersection contrary to a Red “B” while travelling at 65 km/h (18 m/s), he would have had to have ignored an amber signal of 4 seconds and a red signal of 2 seconds, thereby travelling 108 metres in addition to the time for the respondent [defendant] to react to the light change and move her car from a stationary position into the portion of the [T-way] where the appellant was travelling.
4 [Not pressed.]
5 The Primary Judge having found that parts of the respondent’s [defendant’s] evidence could not be accepted because:
a) [Of the] inconsistency in the respondent’s [defendant’s] initial Police statement which contained no reference to Mr Halwagy grabbing the steering wheel and as to where the respondent [defendant] was looking prior to commencing to turn.
b) In a statement to an investigator, the respondent [the defendant] failed to refer to the brother’s nudge or grabbing the steering wheel, or to there being cars in a westerly direction.
c) [She] alleg[ed] the Police statement was inaccurate due to Police Officers not properly recording or their failure to ask the right questions.
d) At trial, her evidence [was] that she looked, left and right, prior to the commencement of the turn, when there was no reason for her to look left [which] was inconsistent with prior statements and presence of a car or cars west bound.
e) Her habit of stopping her vehicle so that she could visualise the white stop line, thereby stopping some metres back from the white line, [was] highly unlikely.
f) The respondent’s [defendant’s] refusal to concede that she had turned and looked towards Mr Halwagy whilst engaged in conversation about her fiancé; her denial that she reacted to a “nudge” and her denial that her brother had taken control of the steering wheel.
The Primary Judge ought properly have found that the respondent’s [defendant’s] evidence could not be relied upon.
6 The Primary Judge erred in finding that Mr Halwagy was “looking ahead” and was unlikely to be confused about the change of lights, such finding was unjust and unreasonable and not consistent with compelling inferences.
The Primary Judge ought to have found that Mr Halwagy:
a) Was engaged in a conversation with his sister who was concerned about her fiancé ceasing work.
b) Would have looked towards her during this conversation.
c) Was the passenger in the vehicle and there was no requirement upon him to look at the traffic lights and, further viewed the green roundel which caused him to nudge respondent and advise her that the “lights were green”, causing her to move the vehicle contrary to the red arrow.
7 The Primary Judge erred in not finding that the respondent [defendant]:
a) Was inattentive.
b) Commenced to move her vehicle due to the nudge from Mr Halwagy and him saying the words “lights are green”, commenced to pay attention only when the car started to turn.
c) Was looking out of the driver’s side corner of her car when she started turning the vehicle.
d) Failed to observe the red arrow because she did not look in the direction of the T-way where the arrow was displayed, engaging in conversation with her brother.
e) Was inattentive such that Mr Halwagy felt the need to intervene and take hold of the steering wheel to steer it prior to the subject accident.
In J[101], the primary judge made the following findings of fact (which I have converted to a continuous narrative that substantially adopts the primary judge’s wording and omits evidentiary references).
On 22 May 2018, the defendant, who was then in her early 20s, and her brother, Mr Halwagy, were driving along Hoxton Park Road in an easterly direction to pick up car parts from Pepe’s Automotive Spares, which is located on Access Road. As at that date, Mr Halwagy had frequently been in a car driven by his sister and regarded her as a cautious driver who was aware of her surroundings (J[101(i)-(ii)]).
As at the date of the accident, the plaintiff, then 43 years old, was employed as a diesel mechanic by Transit Systems NSW. He had commenced work at 5am on 22 May 2018, having risen at about 4am. He had been called by his work to a repair job caused by a breakdown. He was driving a white van along the T-way in the middle of Hoxton Park Road in an easterly direction towards the intersection with Access Road (J[101(iii)-(iv)]).
The defendant approached the intersection travelling eastwards in the right-hand lane as she intended to turn right across Hoxton Park Road and into Access Road to go to Pepe’s Automotive Spares. This turn was controlled by a right-hand turn arrow. When the defendant approached the intersection of Hoxton Park Road eastwards, the right-hand turn arrow was red. The solid roundel signal for eastbound traffic was green. The defendant stopped her vehicle at the front of the right-hand turn lane behind the white solid line in a position where she was able to see the white solid line (J[101(vii)-(ix)]).
While the defendant’s vehicle was stationary at the traffic light, the defendant and Mr Halwagy were talking about the defendant’s fiancé resigning from his job. According to Mr Halwagy, the defendant was not concerned about her fiancé potentially resigning his job but she was upset. The defendant stated that she had no concern about her future husband’s employment. Having regard to the imminence of the defendant’s wedding and the fact that she was a student with a part-time job, the conversation would have been somewhat animated on the defendant’s part, and she would have been concerned but not upset, as her fiancé had not made any final decision to leave his job (J[101(x)-(xi)]).
Whilst stationary at the traffic lights, Mr Halwagy was looking straight ahead. Having regard to the nature of the conversation and the nudge which shortly occurred, the defendant had inclined her head slightly to the left and, contrary to Mr Halwagy’s evidence, was not looking straight ahead during the entire conversation. At some stage, while he was looking straight ahead, Mr Halwagy nudged his sister’s left arm with his right elbow and said words to the effect “lights are green”. At that time the defendant had both her hands on the steering wheel. The fact Mr Halwagy needed to nudge the defendant indicated she had been somewhat distracted during the conversation at the lights (J[101(xi)-(xii)]).
123 I have carefully considered the submissions which have been made by both parties in relation to their respective cases. I have also looked at the 2018 police statements and the 2019 statement of the defendant. Overall, I found the defendant to be a fairly impressive, albeit occasionally loquacious, witness. She appeared overall to have a good recollection of the accident. On the central issues of what occurred, I find that the defendant’s evidence is generally consistent in her 2018 statement and her 2019 statement although some aspects are more detailed in each. Mr Halwagy also confirmed that the arrow was green when the defendant began to turn her vehicle.
124 I particularly take into account the timing of the provision of the police statements and that the defendant’s statement and her brother’s statement were taken some six months before the plaintiff’s police statement.
125 Having reviewed all of the evidence I am inclined to prefer the defendant’s account in her oral evidence as to what occurred. In my view, it was in substance consistent with the contents of her statements about only turning when the arrow facing her had turned green. The inconsistencies established in cross-examination of the defendant and Mr Halwagy did not detract considerably in my view from their evidence on that issue.
126 However, I do not need to go as far as making a positive factual finding as to the defendant’s account of the accident. Having taken into account all of the evidence and the submissions, I am not satisfied on the balance of probabilities of the plaintiffs account. In summary, I do not have an actual persuasion that his version of the accident is more probable than not. The provision of his police statement some 6 months after the accident, the positive overall impression I formed of the defendant, the general consistency of her account that she had a green arrow and the support on the central issue gained from Mr Halwagy’s evidence, are factors which are particularly relevant. It also seems unlikely that Mr Halwagy would have been confused in relation to a change in the lights. I accept his evidence that he was looking ahead. On the light phasing evidence, the lights going ahead east would have been likely green. There was no evidence of pedestrians crossing Hoxton Park Road at the time.
127 In the end, I am unable to find on the balance of probabilities that the plaintiff’s account of him proceeding through a white “B” sign and the defendant turning on a red arrow have been established. Whilst senior counsel for the plaintiff was able effectively to highlight some inconsistencies in relation to the defendant and Mr Halwagy in cross-examination, they were not such as to undermine the defendant on the central point.
128 Turning back to section 58 of the CLA [Civil Liability Act 2002 (NSW)], I am not satisfied that the plaintiff has established the elements of the section and, in particular, the defendant failed to take the precautions of checking that she had a green arrow before commencing the right-hand turn.
Before turning to the grounds of appeal (set out above), I propose to identify relevant statements from authorities concerning the task performed by the primary judge.
The advantages enjoyed by trial judges in finding facts were summarised by Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq*)* [1999] HCA 3; (1999) 73 ALJR 306 at [90]:
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence whilst the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge.
(Footnotes omitted.)
Statements to similar effect are to be found in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23] (Gleeson CJ, Gummow and Kirby JJ).
It is also an important principle that a tribunal of fact is entitled to accept some parts of a witness’ evidence and reject other parts: see the discussion in CCL Secure Pty Ltd v Berry [2019] FCAFC 81 at [94] (McKerracher, Robertson and Lee JJ).
Mr Dooley SC, who appeared for the plaintiff in this Court and in the Court below, submitted that the primary judge was in error in taking into account, or giving “undue weight” to, the timing of the plaintiff’s first statement to police. Mr Dooley submitted that an event such as the dramatic event which occurred on 22 May 2018 would be such as to render immaterial a delay of six months (the plaintiff’s police statement was made on 13 November 2018 after his return from Greece) when assessing the reliability of the plaintiff’s version. Mr Dooley submitted that there would be no alteration in the memory between a few days and six months. He also sought to draw an analogy between cases of child sexual abuse where a first complaint is not infrequently made years, if not decades, after the alleged abuse.
The asserted irrelevance of the time at which a witness gives a first recorded version of what occurred is not only inconsistent with authority but also with experience. Delay is accepted as a matter which affects the reliability of a witness’ memory. As was said in Willmot v The State of Queensland [2024] HCA 42; (2024) 98 ALJR 1407 at [30] (Gageler CJ; Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ):
[C]ourts are mindful that ordinary human experience exposes that human memory is “fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time” [citing Watson v Foxman (1995) 49 NSWLR 315 at 319].
It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.
Cross-examination of sexual assault complainants often proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail. This approach is, in my opinion, rarely appropriate. Memory of surrounding detail has few if any implications, in my opinion, for a person’s reliability about the central details of a traumatic event.
… the concept of delay is relative and judgmental. … Delay is suggestive of hesitation or indecision of the complainant or inefficiency on the part of authorities. That is not to say it involves blameworthy conduct: quite significant lapses of time may be reasonable in the context of a child who is the victim of sexual assault.
None of these considerations which pertain to child sexual assault cases is relevant in the present case. Persons involved in motor vehicle accidents commonly report them to the police promptly. Those, such as the plaintiff, who propose to sue for damages for a driver’s negligence, have no reason to delay the reporting of an incident. Although a car accident can accurately be described as a traumatic event, the details of the lead up to the collision, in the circumstances of the present case – the speed, direction of travel, traffic signals, presence and location of other cars, what was observed immediately prior to the impact – are all matters, the detail of which can be expected to fade with time.
Had the plaintiff given a contemporaneous statement to police, it would have been open to the primary judge to give it greater weight than his statement given six months later. Further, the plaintiff’s recollection was largely confined to his speed and what the applicable light indicated to him. Unlike the evidence of the defendant and her brother, the plaintiff was unable to provide tangential details.
In the present case, as is apparent from the extracts below, there was a notable but not unexpected difference between the sparse account which the plaintiff gave police on 13 November 2018 and the considerable detail which the defendant was able to give to the police when she reported the accident five days after its occurrence (including about her destination, what she was discussing with her brother when they were stopped at the lights, where she looked before and as she put the car into motion, whether the cars in the opposite direction were stopped, the movement of the cars in the lanes next to her, the traffic signal they were facing and what her brother actually said, in direct speech, when he realised that there was going to be a collision).
On 27 May 2018, the defendant told Constable Benitez in the course of her interview at Liverpool police station, as recorded in his notebook:
I was driving on Hoxton Park Rd. My brother was my passenger. On the intersection of Access Rd I stopped on the red light. I was on the right turn line. I was talking to my brother Gabriel about my fiancé losing his job. After a few seconds, Gabriel gave me a knock with his elbow and said, “Lights are green.” I started turning, keeping an eye on the driver side corner of my car. As I was turning, I heard Gabriel saying, “Oh shit” as [he] grabbed me and pull[ed] me towards him. A split second later I hear a bang and see a car flip.
Q Did you check what colour the traffic light was?
…
A Green solid to go straight. Green arrow to go right and a red B.
Q Did you check your right before starting the turn?
A To my right, yes.
Q What did you see?
A Opposite car [or cars] stopped. Red Rooster and Pepes.
Q Did you look toward the T-way?
A No, behind no.
Q Is it fair to say you weren’t paying attention on the road?
A No, I was talking to my brother but when the car started to turn I was paying full attention.
…
Q Speed of travel?
A Take of[f] speed. I was the first one in line – 10km.
The police interview with the defendant concluded at 3.33pm.
While the defendant was being interviewed by Constable Benitez, her brother was interviewed by Constable Koschel, who reduced what Mr Halwagy told him to a statement, which, as it was not signed, may well have been typed up (from notes made at the time) after the defendant and Mr Halwagy had left the station. The contents of this statement are relevant to ground 6 below.
The plaintiff’s statement was relevantly limited to the following exchange with Constable Benitez on 13 November 2018:
Q About 2.35pm on [22] May 2018, at – at the intersection of Hoxton Park Road and Access Road, Cartwright, were you the driver of a motor vehicle registration [XXX] involved in a collision with a motor vehicle.
A I was in the white van.
Q Tell me what happened.
A I was driving along the T-way towards Liverpool. As I reached the intersection, I saw a traffic light showing a white B, giving me right of way. As I was on the intersection, I saw, from my left, the refuel. I saw a little white car turning onto my path. I swerved to avoid it. No time - no time to hit the brakes. Then I felt a hit on the side of the van, and I - and I braced myself. The van started flipping.
…
Q Who were you employed by at the time of the accident?
A Transit Systems Australia.
Q Is there anything else you would like to say?
A All vehicles have a transponder. It assists in changing traffic on T-ways as the vehicles come close.
(Emphasis added to indicate the matter which the plaintiff’s counsel accepted was incorrect. Neither this error nor its implications were explored with the plaintiff in cross-examination.)
This ground challenges the primary judge’s preference for the defendant’s evidence that she turned right when the arrow was green: J[125]. It is a general ground which would appear to be based on the other specific grounds which challenge the defendant’s credibility (which are addressed below). The primary judge was entitled to prefer the evidence of the defendant for the reasons given by his Honour. There was nothing either “glaringly improbable” or “contrary to compelling inferences” about the defendant’s version: Fox v Percy at [29]; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]. It was first given relatively contemporaneously and was supported, in material respects, by the evidence of Mr Halwagy.
For the reasons given below with respect to ground 5, the evidence established that when the defendant first approached police to report the accident, she was not aware of the possibility that she might be charged. At that point, she had little interest in doing anything other than telling the truth as she recalled it. While the defendant’s subsequent versions differed from her original version in some respects (which the primary judge found to be immaterial), she did not deviate from the central propositions that she had been stationary at the lights and waited for them to change. Not long after the light had changed to a green arrow, she entered the intersection when the collision occurred. The significance of changes in versions given over time also arises with respect to ground 5 (see below).
Ground 2 has not been made out.
The defendant told police that she was not looking “behind” towards the T-way. Her evidence was that she looked at the applicable lights (and saw a green arrow, permitting her to turn right) and also saw cars stopped on the opposite carriageway. The negligence which the plaintiff alleged against the defendant was that she went against the lights, not that she failed to take reasonable care to avoid him when she ought to have seen him coming along the T-way beside her. Mr Dooley sought to argue that the defendant’s statement that she was not looking towards the T-way was tantamount to an admission that she was not looking towards the lights which were displayed at the edge of the T-way. I do not consider this to be a fair reading of her evidence. The defendant maintained that she had looked at the lights when her brother nudged her and, to that extent at least, she must be taken to have looked towards the T-way.
In these circumstances, I am not persuaded that the primary judge’s treatment of this evidence gives rise to any error.
Mr Dooley submitted that the phasing of the lights was such as to make it improbable that the plaintiff would have gone through a red “B” on the T-way. He argued that the primary judge failed to give any consideration to the length of time during which the plaintiff would have had to be inattentive to have failed to observe the red “B”. He pointed to the evidence which indicated that the “B” light facing the plaintiff must have been amber for 4 seconds and red for a further 2 seconds before the right-hand turn arrow turned from red to green. On these calculations, and given the plaintiff’s speed of 65km/h (18m per second), Mr Dooley submitted that the plaintiff would have had to travel a total of at least 108m (18m per second x 6 seconds) without noticing (if the defendant’s version of the lights were accepted) that he was facing an amber or red “B”. Further, Mr Dooley submitted that, to this 6 seconds, there needed to be added another 4 seconds or so to take account of the fact that, when the right-turn arrow showed green, the defendant’s brother nudged her before she caused the car to turn right, which would produce a distance of 180m (18m per second x 10 seconds). Mr Dooley submitted that such a high level of inattention was inherently improbable.
The difficulty with this submission is that it rests on the same fallacy as the argument which Dixon CJ (otherwise in dissent) rejected in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. In that case, the plaintiff’s husband was killed when the truck he was driving, alone, at about 25mph, upon a road winding up through wooded hills collided with an unladen diesel truck going downhill at a speed of about 35mph in the opposite direction. As the plaintiff’s husband had died, he could not give evidence. The driver of the diesel truck (the defendant’s employee) did not give evidence.
Dixon CJ said, at 304, that although it could be said that it was more likely that the truck going downhill was on the wrong side of the road, “that is only to say that of two guesses one is more probable than another.” His Honour continued at 304-305:
But in any case we are not concerned with a choice among rival conjectures. In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind … But the law … does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.
Although Dixon CJ was in dissent in Jones v Dunkel, this statement of principle has been consistently followed: West v Government Insurance Office of New South Wales (1981) 148 CLR 62 at 66 (Stephen, Mason, Aickin and Wilson JJ); [1981] HCA 38 and GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 at [60] (Kiefel CJ, Gageler and Jagot JJ).
Even if it were permissible to compare the objective probabilities of the two versions, it cannot be said that it was more likely that the defendant, having stopped her car at the intersection as the right-hand turn arrow was red, would set off into the intersection while the right-hand turn arrow was still red. This hypothesis assumes at least as high a level of inattention on the part of the defendant and her brother as would be attributed to the plaintiff had he continued to drive along Hoxton Park Road at speed notwithstanding that the “B” light had been amber for 4 seconds and red for 2 seconds before the right-hand turn arrow changed to green.
For these reasons, ground 3 has not been made out.
Ground 5 concerns the primary judge’s assessment of the defendant’s credibility. The matters listed in a) to d) of ground 5 largely turn on inconsistencies between what the defendant said on different occasions about tangential matters.
There were at least four different occasions on which the defendant was asked to recall details of the accident: her statement to police on 27 May 2018; her statement to an insurance investigator on 2 May 2019; her evidence in the first trial in October 2023; and her evidence in the trial before the primary judge in April 2025. At the trial, she was extensively cross-examined about inconsistencies between her versions. These were relied on by Mr Dooley in his submissions to the primary judge, who saw and heard the defendant give evidence.
Mr Dooley relied on various inconsistencies between what the defendant told police and what she told the investigator, including that the defendant had not divulged the subject matter of her discussion with her brother to the investigator, that she did not tell the investigator that her brother had nudged her when the lights changed and that she had told the investigator that she looked left and right, whereas she had only told the police officer that she had looked to the right. He also detailed inconsistencies between her evidence at the first trial and her evidence at the second trial.
The defendant was called to give oral evidence at about 2pm on 29 April 2025, the first day of the trial. Shortly before 4pm, it became apparent during the course of her cross-examination that she did not have a copy of her police statement. The primary judge intervened and, before adjourning the Court, asked that the defendant be provided with a photocopy of the police notebook in which her statement was taken down. The defendant was given the photocopy before her cross-examination resumed. The defendant’s evidence, in the first trial, was that she did not get a copy of her statement to police. Discrepancies between versions over time, in these circumstances, are entirely unexceptional. Indeed, questions would arise about the credibility of a witness who is able, when asked about a particular incident on several occasions over a period of years, to recite a version in identical terms.
It was open to the primary judge to regard the minor inconsistencies about peripheral matters in the defendant’s various versions as not adversely affecting her credibility about the principal matters in her evidence: that she was stationary and set off to make a right-hand turn when the green arrow was illuminated. The primary judge’s finding at J[125], extracted above, was well open to his Honour.
Mr Dooley also submitted that the defendant was apprehensive about being charged when she attended the police station and made a statement and that her motive to avoid being charged inclined her to make self-serving statements. Mr Dooley eschewed the insinuation from his submission that he was submitting that the defendant was dishonest rather than simply unreliable.
Q. So, if I were to suggest to you that you did not see the light turn green, but were rather reacting to your brother’s nudge, you would disagree with that. Would you?
A. Yes.
A cross-examiner is entitled to ask leading questions. However, where an affirmative answer is given to a leading question which contains more than one proposition, it is open to the tribunal of fact to decide that the witness has acceded to only one of the propositions or that the question was not sufficiently clear to enable anything to be made of an affirmative answer. The difficulty of assessing what the defendant meant by her affirmative answer is compounded by the double negative in the question which contains a “not” and asks the witness whether she would “disagree”.
When the defendant’s evidence is read fairly as a whole, her affirmative answer to the question extracted above ought be understood as her agreement only to the proposition that she reacted to her brother’s nudge (as she initially did not notice the change in the right-hand arrow light to green). Indeed, so much was made clear in the following exchange shortly afterwards:
Q. What I want to suggest to you was that in that conversation with your brother, you became distracted.
A. No. Not at all. Not at all.
Q. You became distracted and then he nudged you and said, “You’ve got the lights.” And then you immediately began to turn right.
A. I did not immediately begin to turn right. I literally looked up, looked at my arrow, was green and then I proceeded turn.
Q. Are you sure about that?
A. Yes. I’m sure about that.
(Emphasis added.)
Accordingly, in these circumstances, the defendant’s affirmative answer to the question about reacting to her brother’s nudge provides no proper basis to question her credibility.
Ground 5 has not been made out.
4 About 2:20pm on Tuesday 22 May, 2018 I was in the car with [the respondent] on Hoxton Park Road. I was seated in the front passenger seat. We were waiting stationary in the right turn lane at an intersection of Hoxton Park Road to turn into the shopping centre where Pep[e]’s Automotive is located.
5 The traffic arrow for us to turn right went green so [the respondent] started to turn the car, as she was turning I saw a White van in the corner of my eye, it appeared to be travelling very fast, maybe 60 or 70 kilometres per hour and it didn’t look like it was going to stop.
6 As a result of seeing the van coming toward us I put my right arm around her to protect her and with my left arm I took hold of the steering wheel and turned to the left.
7 The next thing I remember is an impact from the front passenger side wheel of the van colliding with the front driver side wheel of our car. I kept trying to steer to the left as the car was sliding along the road, the impact caused our car to slide about 6 – 8 metres coming to a stop on the other side of the intersection.
Mr Dooley relied on the fact that Mr Halwagy did not mention in his police statement that he had nudged the defendant to alert her to the change of lights or the discussion he had been having with her about her fiancé’s work situation. He submitted that these omissions were “significant as [Mr Halwagy] had gone to the Police station at the respondent’s request in order to support her to avoid being charged [and his] failure to tell the Police ought to be viewed as … deliberate and indicative of his belief that the respondent moved the vehicle contrary to a red arrow”.
For the reasons given above with respect to ground 5, there was no suggestion, at the time the defendant and her brother attended the police station on 27 May 2018, that the defendant would be charged. Further, what a person tells police when reporting an accident will be influenced (as the record in the police notebook of the defendant’s interview on that day illustrates) by the questions asked of the person. Ground 6 has not been made out.
Q Is it fair to say you weren’t paying attention on the road?
A No, I was talking to my brother but when the car started to turn I was paying full attention.
For the reasons given above, I propose the following orders:
Dismiss the appeal.
Order the appellant to pay the respondent’s costs.
F****REE JA: I agree with Adamson JA.
**********
Zamagias
Saltalamacchia [2026] NSWCA 48
(2003) 214 CLR 118
(2023) 280 CLR 442
(2014) 86 NSWLR 623
(1959) 101 CLR 298
(2019) 266 CLR 129
(1999) 73 ALJR 306
(1981) 148 CLR 62
(2024) 98 ALJR 1407
(1995) 49 NSWLR 315
Appeal dismissed. The appellant was ordered to pay the respondent’s costs ([84]–[85]).
The defendant’s case was:
the vehicle she was driving was stationary in the lane closest to the T-lane as she waited for the right-hand turn light to turn green to permit her to turn right;
when the right-hand turn arrow turned green, her brother, Gabriel Halwagy, alerted her to the change in lights and prompted her to enter the intersection, which she did, after ascertaining for herself that the light was green; and
at the time the plaintiff entered the intersection, his vehicle was facing a red “B”, indicating that eastbound traffic in the T-lane was obliged to stop and refrain from entering the intersection until the red “B” changed to green.
It was common ground that each of the light sequences in the plaintiff’s and defendant’s respective cases was possible and mutually exclusive. There was no objective evidence, such as skid marks to indicate that one case was more probable than the other. Indeed, there was no evidence as to what occurred or as to the phase of the lights immediately prior to the collision other than that of the plaintiff, the defendant and her brother (who was a passenger in the car the defendant was driving).
The primary judge was not satisfied that the plaintiff had proved his case on the balance of probabilities and entered judgment for the defendant.
At the same time the defendant believed that a car or cars were stopped in the westerly lanes of Hoxton Park Road at the traffic lights. However, this cannot be found to be likely as the defendant and Mr Halwagy were not looking particularly in that direction. There is no evidence that suggests that pedestrians were crossing Hoxton Park Road (J[101(xiii)]).
At this time, the plaintiff was approaching the intersection in the T-way, believing he had a white “B” light which allowed him to proceed through the intersection (J[101(xiv)]).
There was no impediment or restriction on the respective ranges of vision available to the plaintiff, defendant or Mr Halwagy of the lights or the intersection (J[101(xviii)]).
The defendant proceeded to cause her car to commence a right turn across the T-way towards Access Road. She had both hands on the steering wheel. Her police statement taken on 27 May 2018 confirms the defendant’s account that she checked what colour the traffic light was before turning and saw “[a] green solid to go straight [and a] [g]reen arrow to go right and a red B”. When the police asked her whether she checked to her right before starting the turn, she said that she did. The defendant’s first police statement did not include a reference to her stating that she looked right and left before beginning her turn (J[101(xvi)-(xvii)]).
The defendant’s version to police was generally but not entirely consistent with Mr Halwagy’s police statement, also made on 27 May 2018; the defendant’s 2 May 2019 insurance statement; her oral evidence and Mr Halwagy’s oral evidence (J[101(xvii)]).
As the defendant was commencing to turn her vehicle to the right, Mr Halwagy noticed “out of the corner of his eye”, a white “thing” coming at the defendant’s car “at speed”. The plaintiff was travelling at 65kph in a 70kph zone. Mr Halwagy exclaimed words to the effect: “Oh shit”. Virtually instantly, either just before or at the time of the collision, Mr Halwagy placed his right arm across his sister’s chest with his right hand over her upper right arm and grasped the steering wheel of the car with his left hand and pulled the steering wheel to the left. At this time, the defendant was turning right, not having seen the plaintiff’s white van and Mr Halwagy was pulling to the left. In his police statement made on 27 May 2018 (which Mr Halwagy confirmed as likely to be more accurate than his oral evidence given on 30 April 2025), Mr Halwagy said he acted before the collision whereas in his oral evidence he said he acted “right at the moment of the collision”. The primary judge considered that “little turns on the difference” (J[101(xix)-(xx)]).
The accident occurred at about 2.30pm (not at 1.45pm as asserted by the plaintiff) at the intersection of Hoxton Park Road and Access Road.
Immediately following the impact, the defendant also tried to turn the steering wheel from the right to the left (J[101(xxi)]).
The evidence of the phases of the lights at the intersection does not clearly exclude either version of the facts. It is unclear, however, what the light change could have been to cause the mistake which the plaintiff alleged that Mr Halwagy made if Mr Halwagy was looking straight ahead (J[101(xxii)]).
It is unclear how busy the westward lanes of Hoxton Park Road were at the time although overall it was a busy road (J[101(xxiii)]).
The plaintiff’s van tipped over in the accident. Both the plaintiff and the defendant were trapped in their vehicles. Emergency assistance and the police arrived soon after. The plaintiff and the defendant were taken to Liverpool Hospital. The defendant was discharged from hospital on 23 May 2018. On 27 May 2018, the defendant and Mr Halwagy, who had not previously been contacted by police about the accident, attended the police station and made statements to police (J[101(xxiv), (xxv) (xxvii)]).
The plaintiff was discharged from hospital a few days after the collision. He went overseas on a planned holiday soon afterwards and did not give a police statement until November 2018, some six months after the accident. The defendant was not charged by police [J[101(xxvi)]).
On 23 November 2018, the plaintiff applied for personal injury benefits. The proceedings were commenced on 24 November 2021 (J[101(xxvii)]).
The primary judge identified the issues relating to the time period immediately prior to the collision, as being whether (J[101(xv)]):
the defendant had a green or red arrow;
Mr Halwagy was mistaken in concluding that the defendant had a green arrow before nudging her to proceed;
the plaintiff had a white or red “B” signal; and
the defendant looked up, saw the green arrow, looked to the left and right and then proceeded to turn.
In any event, the proposition underlying Mr Dooley’s submission – that the defendant feared that she would be charged when she attended the police station on 27 May 2018 – derives no support from, and is contrary to, the evidence. The relevant sequence of events, as clarified in questioning from the primary judge was as follows. The accident occurred on 22 May 2018. The defendant and her brother attended the police station on 27 May 2018 where they were interviewed. The police notebook recorded that the defendant’s interview concluded at 3.33pm that afternoon.
On a later date, the defendant received a phone call at about 7.30am from Constable Benitez (who had questioned her on 27 May 2018) requesting that she come to the station to be charged. The defendant immediately contacted her brother, who accompanied her to the police station. Mr Halwagy gave evidence to the same effect. It follows from this sequence that, when the defendant attended the police station on 27 May 2018, she had not been warned of the possibility that she might be charged.
Mr Dooley also submitted in f) of ground 5 that the defendant’s avowed practice of stopping her vehicle so that she could see the white line ahead of her was “highly unlikely”. It is difficult to understand the basis of this submission. The defendant’s evidence, which was that this was her usual practice, was accepted by the primary judge. No error has been demonstrated.
In support of g) of ground 5, Mr Dooley submitted that the defendant had refused to concede that she had turned and looked towards Mr Halwagy whilst engaged in conversation about her fiancé and that she had denied that she reacted to a “nudge” and that her brother had taken control of the steering wheel.
The principal matter on which Mr Dooley relied was the defendant’s alleged denial in the first trial that she had reacted to her brother nudging her. This submission was based on the following exchange in cross-examination in the first trial: