Cardinal Pell appeal cited as reason to be cautious on facts and evidence
The Supreme Court of Queensland suspends a truck driver’s three-year prison sentence on appeal.
This follows a fatal-crash case last year, where argument over the operation of his trailer’s brakes was central to the district court case.
Ronald Trevor Gallaty was aged 64 five years ago when his trailer’s wheels locked up on a bend and struck a bus travelling on the other side of the road, killing its driver and injuring passengers.
It was noted at the trial that though the speed limit was 80kmh on the stretch of road, the advisory for negotiating the bend was 40kmh and that the bus had slowed to negotiate it.
The prosecution’s case at the initial judge-only trial was that the Hamelex White tipping trailer’s brakes seized after the automatic stability control (ASC) mechanism on the Mercedes Benz Actros tipping truck activated due to entering the bend at excessive speed.
The defence case was that the prosecution could not exclude, beyond reasonable doubt, that the trailer brakes locked up when the automated brake assist (ABA), activated when that system incorrectly identified the bus as an obstruction.
Such a hypothesis was said to arise on the evidence as Gallaty had said in a police interview and at the subsequent trial that he noticed an alarm just before the collision.
However, , along with witnesses present during the incident, the court heard from a range of expert witnesses on the workings interaction and effectiveness of such safety systems as ABA and ASC.
Citing Cardinal George Pell’s successful High Court of Australia sexual offences appeal, the Queensland appeal court notes that at times the demands of proof – “probative force” – may need to go further than the evidence of certain witnesses to ensure conviction is reasonable.
On whether the driving was dangerous, appeal court observes that sticking to the speed limit and staying in one’s lane does not always negate danger.
“Dangerousness is to be determined by the whole of the circumstances,” the ruling reads.
“This roadway was not ‘a great road’ and the appellant was traversing a bend in an unladen truck and trailer.”
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It states also that operating the truck dangerously did not of itself support a finding that the dangerous operation caused the death.
“That conclusion requires a determination as to the causation of the trailer wheels locking, with the result that the unladen trailer skidded onto the wrong side of the road into the oncoming bus.
“In undertaking this determination, the tribunal of fact had evidence that the ABA was not faulty on the day in question; the ABA, operating correctly, would not react to the bus, even though it was entering the corner, as it was travelling in the opposite direction and the system’s sensors identify and differentiate oncoming vehicles; the SR specifically reacts to the truck taking the bend at too great a speed to safely negotiate the bend; in the event the SR activated, the wheels on the trailer would lock up; the wheels of the trailer did lock up; and that locking up was the cause of the trailer travelling onto the incorrect side of the road, striking the oncoming bus.
“An acceptance of each of those matters as facts was open, on a consideration of the evidence as a whole.
“Such facts amply supported a conclusion that the appellant’s dangerous operation of the truck, by entering the bend at an excessive speed, caused the deceased’s death.”
But the sentencing is where the appeal court parts ways with the District Court’s decision.
It disagrees that, for a driver working fulltime in the heavy vehicle industry for 30 years, six speed-limit infringements, one mass requirement infringements and one crossing double white lines infringement since 1989 counts as “a significant history of traffic offences”, as the primary judge finds.
Nor did this record support the assertion that Gallaty had “developed a habit of driving your truck and trailer to and beyond the limits of their safe operational capacities”, or that he had a cavalier attitude to operating that vehicle at a safe speed.
“Such findings evidence a misapplication of the sentencing process, warranting a re-exercise of the sentencing discretion,” the appeal ruling reads.
Also in need of taking into consideration is a relevant criminal history and a limited traffic history at his age, that he retired from driving heavy vehicles subsequent to this incident and that he had “led a life as a good, useful, contributing citizen to society, who had shown genuine remorse for the death of the deceased”.
The appeal court rules that conviction is recorded, the suspension is operable for three years and Gallaty is disqualified from holding or obtaining a driver’s licence for two years from his conviction last October.