Nisan v R

1. [1]

   HOEBEN CJ at CL: I agree with Schmidt J and the orders which she proposes.

2. [2]

   SCHMIDT J: In October 2014 Mr Nisan was driving a truck which was involved in a collision at the intersection of Warringah and Pittwater Roads, Dee Why. A number of people were seriously injured, including Mr Nisan. In November 2016, after a judge alone trial, Mr Nisan was convicted of two charges of dangerous driving occasioning grievous bodily harm and acquitted of four counts of wilful neglect occasioning bodily harm: R v Nisan (District Court (NSW), Payne DCJ, 21 November 2016, unrep).

3. [3]

   Mr Nisan was later sentenced to terms of imprisonment respectively of 3 years, with a non-parole period of 2 years dating from 4 April 2018 and 2 years with a non-parole period of 1 year and 9 months, dating from 4 April 2017: R v Nisan (District Court (NSW), Payne DCJ, 27 April 2017, unrep).

4. [4]

   Mr Nisan has appealed both his conviction and sentence.

5. [5]

   Mr Nisan’s case was that he had been wrongly convicted and that the sentence imposed upon him was manifestly excessive and inconsistent with the reasons earlier given by the trial judge in the conviction judgment. On appeal the grounds Mr Nisan advanced were:

The sentence was manifestly excessive

1. [6]

   This was not a case which involved either death or deliberately dangerous conduct. It turned on whether it was brake failure, or Mr Nisan’s driving, that had caused the collision.

2. [7]

   At the hearing of the appeal the Crown conceded that the sentence imposed on Mr Nisan was very high. That concession was properly made.

3. [8]

   The truck was not owned by Mr Nisan, who was an employed driver. The evidence established that some of the truck’s brakes were out of adjustment and in cross-examination the Crown’s expert Mr Ruller (a crash scene investigator), said that he would not have driven the truck with the brakes in that state. There was no suggestion that Mr Nisan knew or should have known what the state of the brakes was.

4. [9]

   As I will come to explain, it is not entirely clear that in the conviction judgment the trial judge concluded that regardless of what conclusion was reached as to the number of brakes which were out of adjustment “the Crown cannot exclude the possibility that the poor adjustment caused the accident”. If that was not the conclusion reached, for reasons which I will explain, it ought to have been.

5. [10]

   If this was the trial judge’s conclusion, it is impossible to see how, consistently with that conclusion, her Honour then went on to “reject beyond reasonable doubt that brake fade was a cause of the accident”.

6. [11]

   Her Honour later also observed that she had “a reasonable doubt as to whether the accused acted in a conscious way or was conscious of his breach of the necessary standard of care” and that “[t]here is no evidence that he intended to drive in the way he did, or acted recklessly, rather than events overtaking him”.

7. [12]

   These findings were relevant on sentence to the assessment of the objective seriousness of Mr Nisan’s offences and his moral culpability for that offending. Despite making these findings, her Honour rejected his case that his moral culpability was low. Instead, her Honour concluded that it fell at the higher end of the scale; that the objective seriousness of his offending also fell at the higher end of the range; and that “all the circumstances demonstrate the abandonment of responsibility”.

8. [13]

   I am satisfied that neither those conclusions, nor the resulting sentences imposed on Mr Nisan, were properly open on the evidence received at trial and involved relevant error: House v The King (1936) 55 CLR 499; [1936] HCA 40.

9. [14]

   Had I come to the conclusion that the conviction appeal should be dismissed, it would thus have been necessary to uphold the sentence appeal. Given that I consider that the conviction appeal must be upheld, it is unnecessary to consider the sentence appeal further.

Mr Nisan was wrongly convicted

1. [15]

   The onus fell on the Crown to prove beyond reasonable doubt that the manner of Mr Nisan’s driving was dangerous. Satisfaction on the balance of probabilities, or a finding of negligence could not result in his conviction of the dangerous driving charges which were found proven.

2. [16]

   For reasons which I will explain more fully in relation to the grounds of appeal, I consider that Mr Nisan was wrongly convicted; that his appeal must be upheld; and that he must be acquitted of both charges.

3. [17]

   In her judgment, the trial judge observed that the Crown’s case was that Mr Nisan had failed to control his fully laden truck, while driving down the steep incline to the intersection – safe driving requiring him to reduce his speed sufficiently, so that he could adhere to the 20kph speed limit, which applied to trucks on the steep descent at Warringah Hill. The Crown argued that during this descent, Mr Nisan had to drive in a gear no higher than third and to engage the truck’s exhaust brake. He had failed to do so, with the result that he had driven at excessive speed in the circumstances and in too high a gear.

4. [18]

   Mr Nisan’s case was that the brakes were not roadworthy and had been poorly adjusted, making them vulnerable to brake failure or fading. That was what had caused the accident, by preventing him from slowing the truck to the 20kph speed limit, as he had attempted to do.

5. [19]

   There was no issue that Mr Nisan was the driver of the truck and that the applicable Road Rule 108 of the Road Rules 2008 (NSW), required that on a road where a “trucks and buses low gear sign” applies, trucks must be driven in a gear low enough to limit the speed of the truck, without the use of primary breaks.

6. [20]

   It was also common ground that when Mr Nisan reached the intersection, the truck was travelling at a speed of some 65kph. The evidence established that if it was driven in low range, the maximum speed of the truck was 40kph. On investigation after the collision, the truck was found to be in low range, but not in gear. Being in neutral allowed its speed to increase to 65kph, even though it was in low range.

7. [21]

   Mr Nisan did not give evidence at trial, but both at the scene and afterwards, he made statements to police about what had caused the collision. On his accounts, the collision occurred because the truck’s brakes had failed. Those statements were considered by the parties’ experts, Mr Ruller and Dr Hart (a qualified engineer and electrical and mechanical engineering consultant).

8. [22]

   Mr Cowie, an experienced truck driver who witnessed the accident and was accepted to have relevant expertise, given that experience, gave evidence about what he observed and found when he lent aid at the scene of the collision. Other experts, Constable Wilson (a mechanic) and Dr White (a forensic mechanical engineer), had tested the vehicle.

9. [23]

   There were many differences of opinion between the experts. Many of the critical differences lying between Mr Ruller and Dr Hart were resolved in cross-examination.

10. [24]

    Evidence was also called from the owner of the truck, the mechanic who had maintained the brakes and the truck’s manufacturer. From this evidence it emerged that while the brakes had been maintained, the owner had supplied the “after market” brake linings which had been used on the last occasion they were adjusted, the month prior to the collision. They were not recommended by the manufacturer, but were not tested by either Constable Wilson or Dr White, to determine whether overheating had contributed to brake failure, as was Dr Hart’s opinion.

11. [25]

    The expert evidence ought to have led her Honour to the conclusion that the Crown could not exclude the possibility that it was the state of the brakes which had caused the collision, rather than Mr Nisan’s driving. That was because it finally became common ground between Mr Ruller and Dr Hart, that the brakes had faded during the truck’s descent down Warringah Hill. Where that occurred was what remained in issue.

12. [26]

    In concluding that Mr Nisan’s driving was dangerous, her Honour did not consider the evidence about whether the ‘after market’ brake linings had caused, or contributed to the brakes fading. That was relevant to the question of where it was that the brakes faded.

13. [27]

    Even so, I consider that Mr Ruller’s concession in cross-examination that the condition of the brakes was such that he would not have knowingly driven this truck and the common view of Dr Hart and Mr Ruller, that if the brakes had been working properly, they would have been capable of stopping this truck on the descent, it was not open to her Honour to find that the Crown had proven beyond reasonable doubt that Mr Nisan’s driving was dangerous, or that it had caused the collision.

Ground 1 – admission of expert evidence based on assumptions

1. [28]

   Mr Ruller’s opinions rested on a series of identified assumptions. They included brake temperatures, on which various of his calculations were based, and what Mr Nisan had meant by some of his responses during his police interview.

2. [29]

   The trial judge rejected the objection to Mr Ruller's evidence: R v Nisan (District Court (NSW), Payne DCJ, 16 October 2016, unrep).

3. [30]

   Dr Hart’s opinions also rested on various assumptions, including as to the brakes having overheated and what Mr Nisan had meant by his police interview responses.

4. [31]

   Mr Cowie’s evidence provided an objective basis for the conclusion that the brakes had overheated, given what he described smelling at the scene of the collision. Mr Ruller agreed that this indicated overheating and conceded that there was no way to verify the actual temperatures which the truck’s various brakes had reached.

5. [32]

   On Mr Nisan’s case on appeal, that it was not possible to establish the temperature of the brakes was fatal to the admissibility of Mr Ruller’s evidence: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305. Further, it was argued that her Honour’s reasons revealed that she had concerned herself with whether there was any basis for the defence to argue that overheating was a significant issue, in relation to the effectiveness of the brakes, rather than the admissibility of Mr Ruller’s evidence.

6. [33]

   In the circumstances Mr Ruller’s evidence should not have been admitted and in the absence of his opinions, the Crown’s case should have been rejected as not having established Mr Nisan’s guilt beyond reasonable doubt.

7. [34]

   In rejecting the objection to Mr Ruller's evidence, the trial judge noted that the only evidence of overheating of the brakes came from Mr Cowie, who said that such overheating had been suggested to him by an asbestos-type smell. In his interview with police, Mr Nisan had not said anything about having had any trouble with the brakes, up until this occasion. Her Honour also noted evidence that in normal circumstances, there would have been no heating of the brakes.

8. [35]

   After referring to evidence foreshadowed in the defence case and to Heydon JA’s observations in Makita at [85], her Honour concluded that Mr Ruller's opinions, while based on assumptions, were “not assumptions without having a grounding or founding in his knowledge and expertise and, in my view, he is entitled to give the estimates he has given”: R v Nisan (District Court (NSW), Payne DCJ, 16 October 2016, unrep) at 3.

9. [36]

   Makita was considered in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21. What was there decided has since been repeatedly considered by this Court. Recently in Taub v R [2017] NSWCCA 198, Simpson JA observed, for example:

10. [37]

    It follows that the trial judge did not err in admitting Mr Ruller’s evidence. If, however, at trial the Crown failed to prove the assumptions on which Mr Ruller’s opinions rested, they would be of little or no value, in establishing the Crown case, as her Honour observed in the conviction judgment.

11. [38]

    In relation to Mr Ruller’s evidence, the trial judge noted, for example, that he had used the wrong graph in coming to conclusions about the power of the exhaust brake. Her Honour did not conclude that his opinion about this was of little or no value, because it had no foundation, as the trial judge had earlier indicated would be her approach. She observed, however, that this “undermines” Mr Ruller: see R v Nisan (District Court (NSW), Payne DCJ, 22 November 2016, unrep) at 21.

12. [39]

    Her Honour also referred to Mr Ruller’s concessions that a critical assumption he had made about the brake temperature could not be verified; that the front brakes had been poorly adjusted; and that there had been brake fade, albeit in his view, near the end of the descent on Warringah Hill. Despite this, and without referring to the evidence she had earlier noted Dr Hart had given about the ‘after market’ brake linings contributing to the overheating of the brakes and their fading, her Honour accepted Mr Ruller’s opinion that “the brakes, albeit not perfect, were not determinative of the events”: R v Nisan (District Court (NSW), Payne DCJ, 22 November 2016, unrep) at 32. This approach did not accord with that of the plurality in Dasreef, or that which her Honour had said that she would adopt.

13. [40]

    Despite this, the first ground of appeal must be rejected. The trial judge did not err in admitting Mr Ruller’s evidence. If the assumptions on which his opinions were based were not established by the evidence led at trial, they could not, however be relied on in determining whether the Crown had proved its case beyond reasonable doubt.

Ground 4 – the reasons given were inadequate

1. [41]

   It is convenient to next deal with ground 4.

2. [42]

   The obligation to give reasons in a judge alone trial is governed by s 133(2) of the Criminal Procedure Act 1986 (NSW). The trial judge was also obliged to explain the reasons for the findings of fact which she made: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [30] and to expose her reasoning process: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [6].

3. [43]

   The conviction judgment was delivered orally on 21 and 22 November 2016, after judgment was reserved on 26 October. Mr Nisan’s case that the majority of the judgment dealt with an outline of the evidence and the parties’ submissions must be accepted.

4. [44]

   There was no issue taken with the various binding principles to which the trial judge referred. She also noted that the test of whether Mr Nisan had been driving dangerously was an objective one, which did not require the Crown to establish that he knew or realised that he was driving the truck in a dangerous manner. Her Honour also observed that the Crown's case was circumstantial and that Mr Nisan had advanced two hypotheses consistent with his innocence:

5. [45]

   The trial judge referred extensively to a chronology of relevant events, including dates when the brakes had been adjusted prior to the collision, the last time on 11 September 2014. Her Honour then turned to explain where the collision occurred on 21 October 2014, before turning to the Crown which was explained to be:

6. [46]

   The circumstances relied on by the Crown were identified to be:

7. [47]

   Her Honour then observed that the Crown had the onus of “excluding to my satisfaction that guilt is the only rational hypotheses or reasonable inference”: R v Nisan (District Court (NSW), Payne DCJ, 21 November 2016, unrep) at 23.

8. [48]

   The trial judge then turned to the expert evidence, noting that its value depended on the reliability and accuracy of the material which the experts had used, in order to arrive at their opinions. Her Honour noted that there were conflicts between the opinions of Mr Ruller, Constable Wilson, Dr Hart and Dr White. She then outlined their respective opinions and what they were based on, in considerable detail, noting that only Constable Wilson had physically examined the truck, in a condition which was said to be the same as at the time of the collision.

9. [49]

   As to Mr Ruller, her Honour noted that in summary, his opinions were:

10. [50]

    Later her Honour referred to the cross-examination where Mr Ruller agreed that in his second report he had said that the brakes on the steer axle were in poor condition and in need of adjustment and that the truck was not fit to be on the road and that the truck driver may not have been aware of this, until he started feeling that he had to use more air pressure.

11. [51]

    As to brake temperature, her Honour noted that without allowing for heat in the brakes, Mr Ruller assessed their overall efficiency to be about 85% and with heat above 400°F, about 77%, but that still allowed considerable braking of the truck: R v Nisan (District Court (NSW), Payne DCJ, 21 November 2016, unrep) at 29.

12. [52]

    Her Honour also noted Mr Ruller’s agreement with Dr White, that the truck's foundation brake assembly was roadworthy and in generally good condition, but that he had disagreed with his other conclusions, in whole or in part. She also noted Mr Ruller’s observations about conclusions reached by Dr Hart and evidence which Mr Ruller gave in cross-examination, including that brake fade could have been a contributing factor to the accident, in its later stages: R v Nisan (District Court (NSW), Payne DCJ, 21 November 2016, unrep) at 39.

13. [53]

    After outlining the evidence of the other experts and what Mr Nisan had told police after the collision, her Honour noted that the Crown's case was that the truck was not suffering a mechanical defect, relevant to causation. She then turned to summarise, again in considerable detail, both the Crown and defence case, by reference to the evidence.

14. [54]

    Her Honour dealt with ‘The Crown key points”, namely, “The Brakes and the Experts” – where she noted that it was “[a]greed that poorly adjusted brakes fade at a lower temperature. Agreed between Hart and Ruller that brake fade played a part.” She then turned to “The Interview” and “Brake Fade”, observing that “The experts agree that brake fade played a part”.

15. [55]

    The trial judge then turned to “The defence key points”, beginning with “Introduction”, then “Mr Nisan’s version”, “The consequences of having the front brakes out of alignment” and “The brake force calculations of Mr Ruller”, noting the Crown case that the brakes were poorly adjusted. She then turned to “Other particulars of the offences alleged by the Crown”, beginning with “Incorrect gear selection”, then “the exhaust brake”, “use of handbrake , “good character” and “speed of truck at bottom of Hill”

16. [56]

    The trial judge then turned to “Conclusion”. There had not earlier been a ‘conclusion’ section, when her Honour summarised the Crown’s “key points”. Whether what her Honour said at this point of her judgment, was intended to be an explanation of the defence’s final ‘key points’, or her Honour’s conclusion, is not entirely clear. Her Honour said:

17. [57]

    What her Honour here initially twice observed, when she began “[t]he Court must find that”, reflected the defence submissions. There was an issue as to whether Dr White or Mr Ruller’s opinion about the state of the brakes would be accepted, which had to be resolved. It was the defence case that whichever opinion was accepted, the Crown could not exclude the possibility that poor adjustment had caused the accident.

18. [58]

    Her Honour appeared to accept this, when she went on to say that:

19. [59]

    If that is correct, the conclusion to which her Honour finally came, that the Crown had proven its case, was inconsistent with this finding.

20. [60]

    To understand how her Honour came to conclude that the Crown had proven its case beyond reasonable doubt, it is best to record what her Honour then held in relation to the circumstances the Crown had advanced and the hypotheses the defence had raised. To that point the judgment did not clearly identify the matters over which the parties had joined issue. In the conclusions reached, there was no reference to matters which had been resolved in the cross-examination of Mr Ruller, as was apparent from her Honour’s earlier summary of his and Dr Hart’s evidence.

21. [61]

    The reasoning for some of the conclusions which her Honour reached by the summary method which she adopted, is difficult to follow. Some of the conclusions are affected by her Honour’s erroneous approach to the expert evidence and some of her Honour’s findings are contradictory. In the result, Mr Nisan’s case that the reasons given are inadequate must be accepted.

22. [62]

    The trial judge’s conclusions were:

23. [63]

    If the trial judge’s conclusion was that “the Crown cannot exclude the possibility that the poor adjustment caused the accident”, her rejection “beyond reasonable doubt that brake fade was a cause of the accident”, was inconsistent with that finding. In any event, the latter conclusion was wrong, given the expert evidence, to which I will come.

24. [64]

    Her Honour’s conclusion was sought to be supported by what is described to be “common sense”: R v Nisan (District Court (NSW), Payne DCJ, 22 November 2016, unrep) at 32. A finding that it was possible that it was the brakes which had caused this collision, rather than Mr Nisan’s driving, could not conceivably lead to the conclusion that if there had been brake fade “trucks should have their brakes fail down that hill virtually every day”, as the trial judge postulated: see R v Nisan (District Court (NSW), Payne DCJ, 22 November 2016, unrep) at 32.

25. [65]

    Further, not only was it the common view of Mr Ruller and Dr Hart that there were problems with the functioning of the brakes, which had led to them fading as Mr Nisan attempted to slow down on Warringah Hill, how they had been maintained was relevant to what had caused them to fade. The trial judge gave no reasons, however, for the conclusion that “the brakes had been serviced in an appropriate and timely way”: R v Nisan (District Court (NSW), Payne DCJ, 22 November 2016, unrep) at 28. That conclusion was contrary to the evidence of Dr Hart and the manufacturer of the truck.

26. [66]

    Additionally, not only was there objective evidence that the brakes had overheated, but both Mr Ruller and Dr Hart agreed that the brakes had faded. Dr Hart’s opinion was that the ‘after market’ brake linings had contributed to the overheating, which resulted in the brakes fading. This was not referred to in the trial judge’s conclusions.

27. [67]

    The conclusion that the reasons given were inadequate is reinforced by the trial judge’s reference to the fact that the truck’s brakes had not failed the preceding day. In her view that precluded the conclusion that they had failed on the day of the collision, also as a matter of ‘common sense’. That is quite illogical, particularly when considered in light of what the experts had agreed, to which I will come.

28. [68]

    In the result, the conclusion that the reasons given were inadequate is inescapable. Accordingly, this ground of appeal should be upheld.

Grounds 2 and 4(a) – Mr Nisan’s record of interview

1. [69]

   There was an issue between the parties as to what Mr Nisan had meant when he answered questions about his speed; the point at which he had attempted to slow down; and what he had done when changing the gears. Mr Ruller and Dr Hart each considered his answers and had made different assumptions about what Mr Nisan had meant, in arriving at their opinions.

2. [70]

   This fell to her Honour to resolve, in deciding whether their opinions could be accepted.

3. [71]

   In final submissions the parties addressed what Mr Nisan had said at various points during the interview, submissions to which her Honour addressed various questions. Her Honour finally accepted the Crown's submissions as to what Mr Nisan had meant, in the result coming to the same conclusion that Mr Ruller had reached in his report, namely, that Mr Nisan had only attempted to reduce his speed, when he reached the second 20kph speed sign.

4. [72]

   It follows that admission of Mr Ruller’s opinions, based as they were in part by what he understood Mr Nisan to have meant, is unlike the circumstances which arose for consideration in R v Banhelyi [2012] QCA 357. There it was concluded that Mr Ruller did not have the expertise to form opinions as to what was depicted in video footage which recorded the activation of indicator and brake lights.

5. [73]

   Mr Nisan’s answers on interview, it may be accepted, were not entirely clear. Fairly read, however, what he said about how he had attempted to reduce the speed of the truck, which was in low range, from 40kph to 20kph, by taking his foot off the accelerator and changing gears down, eventually to one, while using the footbrake, prior to the 20kph speed zone, could not reasonably be understood to have meant that he had only attempted to reduce the truck’s speed at the first 20kph speed limit sign, rather than the first warning sign of the reduced speed zone which he knew was ahead, having driven this route twice or more a week for some two years.

6. [74]

   It follows that while her Honour did not err in admitting Mr Ruller’s assumptions about what Mr Nisan had meant, in coming to the same conclusions as he did about what Mr Nisan meant and then accepting Mr Ruller’s opinions about where it was that Mr Nisan began slowing the truck, her Honour erred. Mr Ruller’s assumptions were not made good by a fair reading of what Mr Nisan told police who interviewed him and accordingly his opinion could not be accepted.

7. [75]

   Mr Nisan’s answers had to be understood in the context that the speed limit on the long descent to the intersection at the foot of Warringah Hill was initially 70kph and later 60kph. On the steep part of the descent the limit for trucks was 20kph. Before this 20kph zone was reached, there were two sets (a set being one sign on each side of the road) of white and black signs warning of the approaching 20kph speed limit. There were then two sets of red and white 20kph speed limit signs, the first at the top of the steep descent and another further on. Shortly before the intersection was another sign, which indicated the end of the 20kph zone.

8. [76]

   What Mr Nisan said when initially asked on interview to start “from the beginning” was:

9. [77]

   Her Honour did not refer to Mr Nisan’s answer to question 20, or the detail of what he said elsewhere in this interview in her conclusions. There she said that:

10. [78]

    What Mr Nisan meant by his answer was, however, extensively explored in the interview.

11. [79]

    Answers to questions 52 to 54 disclosed that Mr Nisan had been working for his employer for two years, driving this route twice or more a week. He agreed that he knew the road well. In questions 56 to 61 he was asked about the number of signs on the road. He answered:

12. [80]

    Mr Nisan was also asked:

13. [81]

    By this exchange Mr Nisan was saying that he had slowed to 40kph by the time he reached the black and white sign, but he was unable to slow to 20kph, by the time he reached the red 20kph speed sign.

14. [82]

    When asked what else he did to try and reduce his speed, Mr Nisan said:

15. [83]

    As to the gear he was in, Mr Nisan said:

16. [84]

    From this exchange Mr Nisan was saying that he had gone through the gears in low range from 4 down to 1, but he was not able to get into first gear.

17. [85]

    Signage was returned to after Mr Nisan said that he had noticed something was wrong with the air gauges. He then said:

18. [86]

    In evidence at trial was a video recording of the drive down the road, past the signs, but that was not shown to Mr Nisan. Instead, he was then shown some photographs, with the signs numbered 1 to 4. After he said he recognised number 3, the first 20kph sign, he was asked:

19. [87]

    From this exchange, it is apparent that Mr Nisan was explaining that while he had attempted to reduce his speed before he reached the 20kph speed limit sign, he had been unable to do so and when he reached that sign, he was still travelling at 40kph.

20. [88]

    Mr Nisan was later asked again about the signs, by reference to a diagram and the photos at question 139. He then said that he was tired, exhausted, unable to remember exactly and was having trouble concentrating. He was given water and the interview continued. Later he was asked:

21. [89]

    By this exchange, Mr Nisan was indicating that it was after he reached the 20kph speed limit sign, that his speed began to increase.

22. [90]

    Later, after he was taken to the signs again, Mr Nisan was asked what he understood the maximum speed in gear one low range was. He said that he thought it was up to 20kph, depending on the load and where the truck was travelling. Later he said that normally he drove down that incline in gear 3 and if the load was heavy, gear 2. Later Mr Nisan said that:

23. [91]

    Mr Nisan repeatedly said that it was very hard for him to remember exactly what had happened at different stages, because it had all happened in seconds. In his answer to question 190, he said that he could not remember if the exhaust brake had worked when he took his foot off the accelerator.

24. [92]

    In answering questions 193 and 194, he also said that he always had his foot on the brake on that hill, to make sure his speed did not go over 20kph and because someone could drive in front of him on that road. Mr Nisan was then asked:

25. [93]

    By this exchange Mr Nisan again agreed that he may not have succeeded in getting the truck into first gear.

26. [94]

    The Crown case on appeal was again that Mr Nisan was “very clear, both verbally and by his gestures”, that there were only two sets of signs on Warringah Hill. Further, that “by aiming to reduce his speed to 20kph by what was in reality the second set of mandatory speed limit signs, he … left it too late to reduce speed safely”.

27. [95]

    Neither of those conclusions were fairly open on what Mr Nisan said in the interview. Nor was the conclusion which the trial judge reached.

28. [96]

    In the result, while ground 2 must be dismissed, ground 4(a) must be upheld.

Ground 3 – unsafe, unsatisfactory or unreasonable verdict

1. [97]

   Mr Ruller’s opinion was that the collision had occurred because of Mr Nisan’s driving, not mechanical problems, because he had not attempted to slow the truck to 20kph early enough on the descent. Dr Hart concluded that the collision had occurred because the brakes were out of adjustment and had become so hot that they lost effectiveness – preventing Mr Nisan from slowing the truck, as he had planned, to 20kph, in order to descend the hill.

2. [98]

   Mr Nisan’s case on appeal was that the evidence, including various concessions made by Mr Ruller in cross-examination and the resulting findings which the trial judge made in the conviction judgment, her Honour ought to have entertained a doubt about his guilt of the charges of which he was convicted: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]. The reasons given for rejecting Dr Hart's opinions did not follow as a matter of common sense, were illogical, unsafe, unreasonable and plainly absurd.

3. [99]

   Mr Nisan also contended that in circumstances where Dr Hart, a leading expert in heavy vehicle braking with the greater expertise, considerable caution had to be exercised in preferring Mr Ruller's reported opinions. Further, given Mr Ruller’s evidence in cross-examination, that if he knew that the brakes on the steer axle were in poor condition and in need of adjustment, he would not have taken the truck “out of the yard”, Dr Hart’s opinions should have been accepted.

4. [100]

   In the circumstances, in relation to what remained in dispute, Dr Hart's evidence should have been preferred, or at least led her Honour to the conclusion that there had to be a reasonable doubt as to Mr Nisan’s guilt of dangerous driving. Her Honour did not, as trial judge, enjoy an advantage from seeing and hearing the evidence, given at trial, which would preclude his appeal from being upheld: Filippou v The Queen at [12].

5. [101]

   On the Crown’s case Mr Nisan should not have used the brake at all on Warringah Hill, except perhaps in an emergency. The speed limit was 20kph and he should have driven in low gear, with the assistance of the exhaust brake.

6. [102]

   Accordingly, her Honour did not err in concluding that it was Mr Nisan’s manner of driving which had resulted in him exceeding the 20kph speed limit and causing the collision. As he descended the hill he was not only speeding, but driving in the incorrect gear; he had failed to use the exhaust brake; and he then attempted to use the handbrake, thereby depleting the air pressure of the footbrake system.

7. [103]

   The Crown also submitted that the fact that the truck was found to be in neutral at the scene of the collision, was likely to have been because Mr Nisan’s speed had been too high to permit the engine to allow him to reduce gears. This had also prevented engine retardation from limiting the speed of the truck.

8. [104]

   In my view the Crown’s case should not have succeeded at trial and Mr Nissan’s case must succeed on appeal.

9. [105]

   In evidence was:

10. [106]

    Neither Dr Hart nor Mr Ruller had inspected the truck.

11. [107]

    Other evidence established that non-genuine or ‘after market’ brake linings had been installed on the truck’s brakes. Their operation was not tested by either Constable Wilson or Dr White, to determine whether they met applicable vehicle standard regulations, or whether their operation could have contributed to the brakes failing. Dr Hart considered that they had contributed to the brakes overheating and fading.

12. [108]

    While the experts were all called separately to be cross-examined and did not give their evidence concurrently, as would have been of obvious assistance to the trial judge, some agreements emerged.

13. [109]

    For example, in cross-examination Mr Ruller confirmed that he agreed that the brakes on the steer axle were in poor condition and needed repair and that if he knew they were in that condition, he would not have driven the truck down Warringah Hill, or even taken it out of the yard. He also accepted that Mr Nisan may not have been aware of that problem, but in his view, he should have still been able to drive safely down the Hill, using normal driving procedures.

14. [110]

    On Dr Hart’s evidence, Mr Nisan needed to be in gear 5 or 6, to be driving the truck at 40kph. In his oral evidence Mr Ruller said that the truck would have needed to be in 5th gear.

15. [111]

    Mr Ruller agreed that the maximum speed for gear 5 was 40kph and that to go from 5th to 4th gear, Mr Nisan had to slow to the maximum speed of 29kph. When asked if the brakes should have been able to reduce the truck to that speed, Mr Ruller said that at the top of the hill, they should have “pulled him up”; that he could also slow his speed by taking his foot off the accelerator; that using the footbrake brake was an obvious way of reducing speed; and that:

16. [112]

    In Dr Hart’s view, to achieve a speed of 20kph going down Warringah Hill, Mr Nisan had to shift down to gear 3. That is only possible if road speed and engine speed are suitable. In cross-examination Mr Ruller agreed that to shift down, the truck had to be put into low range. After the collision it was found to be in that range, but in neutral.

17. [113]

    Dr Hart said that if the speed was too high, an attempted gear change would fail, resulting in either a higher gear, or neutral being selected. Neutral would preclude engine retardation slowing the truck’s speed. The driver would then have to rely completely on the footbrake, because the exhaust brake only worked in gear. The handbrake would also not then be of assistance, because it used the same brake mechanism as the footbrake. Mr Ruller agreed.

18. [114]

    Dr Hart’s opinion was that the truck’s exhaust brake would probably be powerful enough to control the descent of the truck, if it was in gear 1 or 2, but not in higher gears. This would, however, require a speed of only 10kph at the top of the final descent. Otherwise, a driver would also have to use the footbrake while descending this hill.

19. [115]

    Mr Ruller said that the footbrake could have been ‘feathered’. Further, when he drove that route, he had observed another truck driver using both the exhaust brake and the footbrake.

20. [116]

    Dr Hart considered that Mr Nisan was mistaken, when he said that he had shifted down to low gear one, given that the truck was in neutral. Further, because the exhaust brake was off, he must not have understood what it did, as was also Mr Ruller’s opinion.

21. [117]

    In Dr Hart’s opinion, if these brakes had been adequate, the collision would not have occurred. Mr Nisan had a driving plan which should have resulted in him descending the final part of the hill at 20kph. That speed was rendered impossible because of brake fade, caused by the brakes having become excessively hot and having lost effectiveness. Mr Ruller agreed that there had been brake fade. What he doubted, however, was that Mr Nisan had applied the brakes before he reached the first 20kph speed sign.

22. [118]

    While the temperature of the brakes could not be established, the experts agreed that they overheated. Mr Cowie’s evidence was that when he went to the truck after the collision, he noticed a burning smell. On the voir dire Mr Ruller had agreed that the brakes being 400°F would explain the smell.

23. [119]

    Dr Hart explained that drum brakes fade more quickly when in poor adjustment, because braking effect is not shared equally, that also increasing the chance of all brakes experiencing fade, as brake linings reach extreme temperatures. This leads to a cascading effect, which causes brakes to fade sooner. Given the 55kph route Mr Nisan had travelled before the collision and the ‘after market’ brake linings which had been installed, Dr Hart considered that it was plausible that the brakes had reached extreme drum brake temperature. Dr Hart also said in his report:

24. [120]

    In cross-examination Mr Ruller agreed with what Dr Hart said in this passage of his report, but still disagreed with Dr Hart about the point at which Mr Nisan applied the foot brake.

25. [121]

    Dr Hart disagreed with Mr Ruller's assumption that hot brakes had an effectiveness of 77% of cold brakes. On Dr Hart's evidence, if the brakes were as good as Mr Ruller said they were, they should have been capable of stopping the truck on the descent, notwithstanding that it was in neutral with the exhaust brake off.

26. [122]

    In cross-examination Mr Ruller agreed that the truck had a braking problem, or he said, Mr Nisan was trying to commit suicide. He also agreed that poorly adjusted brakes were unsafe, because that would lengthen the stopping distance. Given that the truck was only doing 65kph at the time of the collision, he considered that the brakes had not failed completely and that brake fade had occurred only at the “later stages”. Dr Hart disagreed.

27. [123]

    From all of this evidence, I am satisfied that the Crown did not prove beyond reasonable doubt that Mr Nisan’s driving was dangerous, or that it caused the collision.

28. [124]

    The experts finally agreed that the truck’s footbrakes were defective. So defective that, in Mr Ruller’s view, the truck should not have been driven on the road at all. If the brakes had been properly adjusted, they should have been capable not only of slowing the truck down from 40kph, when Mr Nisan applied them after taking his foot off the accelerator, so that he could change gears in low range, on Mr Ruller’s evidence, they should have been able to bring the truck to a complete stop on the hill.

29. [125]

    The brakes did not achieve the deceleration necessary to permit Mr Nisan to effect the change into a lower gear, which he attempted. The result was that the truck was put into neutral and it accelerated, eventually to 65kph at the foot of the hill, where the collision occurred. In that situation, even if the exhaust brake had been on, it could not have operated to slow the truck’s speed while it was in neutral and travelling too quickly to permit a gear change. Mr Nisan said that he panicked when the brakes did not slow the truck and so he tried to use the handbrake, but that could be of no assistance to him, because of the way that the braking system operated.

30. [126]

    It follows that in using the foot brake as Mr Nisan said he did, to decelerate the truck while in it was in low range, so that he could change gears down, in order to descend Warringah Hill at the 20kph speed limit, he was not in breach of Road Rule 108. That Rule did not preclude Mr Nisan from using the foot brake to decelerate the truck, to permit such a gear change, before he reached the first speed sign. Rule 108 only required Mr Nisan to be driving at 20kph, when he reached the first 20kph speed limit sign and to drive at that speed until the 20kph zone ended.

31. [127]

    In that zone Mr Nisan had to drive in a gear low enough to limit the speed of the truck to that speed, without use of the foot brakes. The gear which would have limited the truck to that speed depended on the load which the truck was carrying that day. In order to put the truck into that gear, it had to be slowed. If the required slower speed could not be achieved by taking his foot off the accelerator, Mr Nissan had to use the truck’s foot brake, which should have been capable of bringing the truck to a stop.

32. [128]

    On his account, before he reached the speed sign Mr Nisan did take his foot off the accelerator, but that did not reduce the speed of the truck sufficiently so that he could change to a gear low enough, to allow it to descend the hill at 20kph. In that situation, considerations of safety undoubtedly required him to use the foot brake to reduce the speed of the truck, so that he could make such a gear change. That was what he attempted. His attempts failed, because the brakes faded.

33. [129]

    In that situation it cannot be considered that Mr Nisan’s use of the foot brake was dangerous. To the contrary, it was necessary. If properly adjusted, those brakes would have slowed the truck sufficiently to permit him to change gears down as he attempted. That they did not do so was because of the problems with the adjustment of the brakes which the experts identified.

34. [130]

    It follows that while the evidence established that the truck did not adhere to the 20kph speed limit, it did not establish beyond reasonable doubt that this was the result of Mr Nisan’s driving, rather than the state of the foot brakes. In the result, it could not be concluded that the Crown established beyond reasonable doubt that Mr Nisan’s s driving was dangerous, as her Honour finally concluded.

35. [131]

    This ground of appeal must accordingly be upheld, as must the conviction appeal.

Orders

1. [132]

   The orders I would make are:

   1. (1)

      Leave to appeal be granted;

   2. (2)

      The conviction appeal be upheld;

   3. (3)

      The convictions be quashed; and

   4. (4)

      The appellant should be released forthwith.

2. [133]

   CAMPBELL J: I have had the considerable advantage of considering Schmidt J’s reasons in draft. I agree with the orders proposed for the reasons her Honour gives. I wish to record that having considered the evidence for myself I am of the view that notwithstanding the advantages enjoyed by the learned trial judge, for the reasons given by Schmidt J it was not open to her to convict the appellant.