March 2019


Court rejects tanker crash appeal

by John Reynolds, KT Journalism

A NSW man found responsible for a collision between the car he was driving and a petrol tanker had no arguable case to reconsider the decision, the NSW Appeal Court has found.

On November 22, 2018, Justice John Basten, with whom Justices Ruth McColl and Julie Lonergan agreed, refused Americo Nuno Simoes's application to appeal against District Court Judge Susan Gibb's ruling the collision was caused by Mr Simoes driving through a red light.

Justice Basten also refused to hear Mr Simoes's appeal against Judge Gibb's order he pay tanker owner Kel Campbell Pty Ltd $71,542 in damages.

The court heard Mr Simoes's car and the tanker, driven by Brian Vincent Moon, collided in the middle of a signalled Rockdale, Sydney, intersection on December 20, 2014.

Both men claimed they entered the intersection on a green light and Judge Gibb was asked to rule on liability.

On September 1, 2017, she found Mr Moon the more reliable witness, based on his account matching those of independent witnesses and Mr Simoes's April 2015 police interview.

In the interview, he told investigating officers he "thought he saw" a green light and admitted the incident "was completely my fault".

In his appeal, Mr Simoes argued Judge Gibb should have disregarded the police statement because [Mr Simoes] was intoxicated when interviewed. He also argued Judge Gibb had erred when she refused to hear evidence from Mr Simoes's partner, Justine Surin, who was present for part of the police interview.

Justice Basten said Judge Gibb had considered the police interview and found Mr Simoes's intoxication was of little significance based on his clear recollections before and after the collision.

There were also issues with his claim about the timing of his drinking and the police interview. Mr Simoes had argued he had been drinking at an outing, came home intoxicated at 10.30pm and was interviewed by police who were waiting for him.

Police records showed they attended Mr Simoes's house at 9.20pm and Mr Simoes was at home when they arrived. Mr Simoes signed the police interview record at 9.53pm.
Justice Basten said Judge Gibb should have excluded the interview from evidence only if she were satisfied Mt Simoes's admissions were influenced by "violent, oppressive, inhuman or degrading conduct", as required by the NSW Evidence Act.

There was no such evidence, nor did Mr Simoes object to the interview being tendered during the trial.

He said Mr Simoes's counsel at one stage suggested intoxication during the interview might have been an issue and was warned by Judge Gibb that suggestions of duress would have to be "dealt with properly". Counsel responded: "I'm not suggesting duress."

Justice Basten said Mr Simoes's argument that justice had miscarried because of Judge Gibb's refusal to hear his partner's evidence about the police interview at his home had no merit.

Judge Gibb had been willing to hear Ms Surin's evidence but only if the interviewing police officer was called to rebut her claims. Mr Simoes's counsel accepted Judge Gibb's ruling and decided not to call the officer.

Judge Gibb had also sought an explanation from counsel for the need for Ms Surin's evidence before she was called.

"Counsel accepted [Judge Gibb's] implication he would not be allowed to adduce such evidence without seeking to explain what the evidence would be, or why it was admissible," Justice Basten said.

"There was no material before this court revealing what questions Ms Surin might have been asked and what answers she might have given had the matter proceeded.

"Without knowing precisely what evidence Ms Surin would have given, it is impossible to conclude [Mr Simoes's] counsel was under any misapprehension as to what Judge [Gibb] had in mind, or that [Mr Simoes] suffered any miscarriage of justice by his counsel's ready capitulation. "

Justice Basten said Judge Gibb found the independent witnesses reliable and was entitled, on hearing their evidence, to prefer their accounts to Mr Simoes's version of events. 

None of Mr Simoes's grounds to lodge an appeal had merit and, taken together or individually, did not support an argument for a miscarriage of justice.

"The cumulative effect of the evidence provided ample support for a finding [Mr Simoes] was in the wrong and had proceeded across the intersection in defiance of a red traffic light," Justice Basten said.

(Simoes v Kel Campbell Pty Ltd; Simoes v Moon [2018], NSWCA 284, 22/11/2018)

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