A Sydney P-plater who fell asleep behind the wheel of his car when it ploughed into two cyclists, killing both, days before Christmas has had his conviction quashed.
Nicholas James Parker, 23, was driving for less than 10 minutes along Kurrajong Rd in Richmond in the city’s north-west on his way to his apprenticeship in the early hours of December 10, 2019, when the crash occurred.
The then 19-year-old fell asleep while driving and veered onto the wrong side of the road before colliding head-on with cyclists Geoff Havill and Chris Culver, who were out for an early morning bike ride.
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Havill died at the scene, while Culver was rushed to hospital but didn’t survive.
Parker was charged with two counts of dangerous driving occasioning death and one count of negligent driving occasioning death, as well as a minor driving offence.
Following judge-alone trials in the District Court in 2021 and 2022, he was found not guilty of the dangerous driving offences, but guilty of the negligent driving offence.
Geoff Havill died at the scene. Credit: 7NEWSChris Culver was rushed to hospital but later died. Credit: 7NEWS
He was sentenced to a 12-month intensive corrections order, which required him to complete 200 hours of community service.
He was also disqualified from driving for three years.
He pleaded guilty to the separate charge of crossing onto the wrong side of the road and was convicted and fined $1000.
Parker appealed his conviction for the negligent driving charge, and in a decision handed down by the Court of Criminal Appeal on Monday, the conviction was quashed and he was acquitted.
During his trials, the court heard Parker had slept only six hours before getting behind the wheel of his car that morning.
He didn’t dispute the fact that he had fallen asleep behind the wheel, nor that he had veered onto the wrong side of the road and hit the cyclists.
After hitting the cyclists and the guardrail on the side of the road, Parker pulled his car over onto the correct side of the road and when a witness asked if he was OK, he said: “I fell asleep. Did I hit any other cars?”.
The scene of the crash at Richmond. Credit: 7NEWSNicholas Parker. Credit: 7NEWS
However, at trial, he relied upon his “honest and reasonable – albeit mistaken – belief that it was safe for him to drive”.
That fact was admitted into evidence without objection during trial and provided the basis for Parker’s acquittal in the dangerous driving trial.
Parker appealed his convictions on two grounds — that it was unreasonable or could not be supported due to erroneous findings of fact by the trial judge and that the trial judge failed to provide adequate reasons by which the prosecution proved that Parker was driving negligently at the time of the crash.
“(Parker’s) essential argument is that the finding made in the dangerous driving judgement in connection with honest and reasonable mistake of fact should have been, but was not, carried forward by (the trial judge) when dealing with that issue in connection with the negligent driving offence,” Justice Nicholas Chen said in the decision.
Regarding the first ground of appeal, Parker claimed the trial judge erred in finding that there was no evidence to support a finding that he “just spontaneously fell asleep” and that the trial judge erred in finding that Parker “’had some warning’ that he would end up on the opposite side of the road’.”
“In my view, the evidence was unquestionably capable of supporting an inference, and finding, that the appellant did spontaneously fall asleep: to find, as (the trial judge) did, that there was ‘no evidence to indicate that he just spontaneously fell asleep’ was, therefore, an error of law,” Justice Chen said of the first ground of appeal.
“In my respectful view, the trial judge’s reasons did not adequately deal with the consequences of what was, relevantly, an indistinguishable Crown case in respect of the different offences,” he said of the second ground.
Justice Chen found both grounds of appeal were upheld, and Justices Hament Dhanji and Robert Beech-Jones agreed.
Parker’s conviction was quashed and he was acquitted of the negligent driving causing death charge.
A retrial was not ordered as Parker has already served his entire sentence and “it is ‘unthinkable’ that the appellant could, if convicted, be subjected to any additional punishment”.