In July, James Brian Randall was convicted in the local court of negligent driving occasioning grievous bodily harm (GBH) and not passing a bicycle with a safe distance.

The truck driver lodged an appeal this month in the Tamworth District Court but failed to have the convictions overturned for the August 29, 2017, crash at Westdale.

“If your client was able to turn back the clock, he wouldn’t hesitate,” Judge Jeffery McLennan said. 

The court heard Randall had been driving a Western prime mover east along the Oxley Highway at Westdale about 1.35pm.

Judge McLennan detailed how Randall encountered the cyclist, Judy Johnstone, travelling the same direction and “commenced an overtaking manoeuvre”.

He said the truck “made contact with the handlebar, causing Ms Johnstone to crash to the ground”.

The court heard Mrs Johnstone had no memory of what had occurred, but the 73-year-old suffered multiple skull fractures, bleeding on the brain and a snapped tendon on her left thumb.

“These are serious injuries,” Judge McLennan said.

“The negligence displayed on this particular occasion was not gross, it was a failure on his behalf to manage his vehicle.”

Randall’s defence argued there had been no breach of the rule of passing at a safe distance because Mrs Johnstone had swerved in and out of the lane and “negligence had not been established”.

The solicitor argued the cyclist “suddenly came out of the right fog line” and Randall blew his horn and slowed down to let the cyclist know he was approaching.

He told investigators he was on the double lines and the cyclist moved back to the left lane. 

Crash investigators found a black mark on the trailer of the truck and “concluded that contact had been made between the two”. 

The safe passing distance is at least 1.5m, but Randall said in an interview with police he was unaware of that.

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Randall’s defence submitted that the evidence was insufficient that contact had been made, and that the prosecution had failed to prove the rider hadn’t lost control and driven into the truck.  

He argued Randall had an honest and reasonable belief that he had left a safe distance at the time because another vehicle was passing.

Judge McLennan agreed with the magistrate’s findings, and found Randall “was ignorant of the rule” and failed to pass at a safe distance.

He said that although this was an unfortunate accident, sounding a horn was not a warning “about her erracticness”.

He said the ordinary prudent driver “would not have ordinarily passed the cyclist”, when there was oncoming traffic.

“In those circumstances, the two appeals against conviction are dismissed,” he told the court.

Randall also then lodged a severity appeal against the penalties imposed, after he was fined $2000 and disqualified for 12 months – the mandatory minimum under the law – and $500 for not passing the cyclist at a safe distance.

The court heard the proof of the second charge assisted in the proof of the negligent driving offence.

Randall’s defence argued his client had lost his livelihood, had been penalised by the court and now “he ends up off the road for 12 months”. He asked for a bond without conviction to allow him to return to work.

He said it “was an aberration” and that “on reflection … he should have slowed down”.

“This bike turned in front of him,” the solicitor said.

“He hit the horn, he put the bike rider on notice, ‘I'm going past you ...’

“I don’t think he wasn’t cautious; I just don’t think he was cautious enough.”

But Judge McLennan said Randall’s history – which included a prior conviction for failure to give particulars after a crash, and “a series of demerit points” – “with all due respect, doesn’t entitle him to leniency”.

He confirmed the penalties imposed and said there was “no element of double jeopardy, and no element of double punishment”.