A Sydney truck driver responsible for a crash on Mount Ousley that left a woman trapped inside her vehicle with a broken leg is eligible to regain his licence after having his criminal conviction for negligent driving expunged on appeal.
Adnan Al Refaei, 61, was behind the wheel of a B-double with a fully loaded trailer when the truck began to speed up as it came down the mountain on the afternoon of November 15, 2016.
Al Refaei applied the main brakes however they failed to slow the vehicle, causing it to plough into two cars south of the New Mount Pleasant Road overbridge.
The female driver of one of the wrecked vehicles had to be freed by emergency services before being transported to hospital with a broken femur.
Al Refaei was charged with dangerous driving occasioning grievous bodily harm, with police alleging he had failed to put the truck into the appropriate gear before commencing his descent.
Under law, heavy vehicle drivers are required to select a gear when making descents that keeps their vehicles under the restricted speed limit (40km/h in the case of Mt Ousley) without the need to use primary brakes.
Al Refaei fought the charge in Wollongong Local Court earlier this year, with his lawyers arguing the faulty brakes had been a significant contribution to the crash and not his manner of driving.
Magistrate Michael Antrum found Al Refeai not guilty of dangerous driving but guilty of the lesser charge of negligent driving (causing grievous bodily harm).
Al Rafaei was convicted, placed on a 12-month good behaviour bond and disqualified him from driving for 12 months.
Al Rafaei lodged an appeal against the findings, seeking to have the guilty verdict overturned in a hearing in Wollongong District Court on Tuesday.
However, Judge Andrew Haesler found the magistrate had been correct in his determination that Al Rafaei’s actions were ultimately to blame for the crash.
He upheld the guilty finding, but agreed to quash Al Rafaei’s conviction and place him on a two-year bond after determining his actions that day had been a “momentary lapse of concentration”.
He also said the poor brake performance reduced Al Rafaei’s overall “moral culpability” for the crash.
“The evidence before me indicates Mr Al Rafaei was a diligent truck owner and driver, and regularly maintained his vehicle,” he said.
“But whoever did the job [on the truck’s brakes] hadn’t done it properly. Whoever had adjusted the brakes had done it….negligently.”
Judge Haesler noted Al Rafaei had expressed “immediate, direct and considered” remorse for the victim, telling police he wished to send her flowers to apologise.